[Federal Register Volume 84, Number 163 (Thursday, August 22, 2019)]
[Proposed Rules]
[Pages 44190-44222]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-17810]
[[Page 44189]]
Vol. 84
Thursday,
No. 163
August 22, 2019
Part VI
Department of Transportation
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Federal Motor Carrier Safety Administration
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49 CFR Part 395
Hours of Service of Drivers; Proposed Rule
Federal Register / Vol. 84, No. 163 / Thursday, August 22, 2019 /
Proposed Rules
[[Page 44190]]
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DEPARTMENT OF TRANSPORTATION
Federal Motor Carrier Safety Administration
49 CFR Part 395
[Docket No. FMCSA-2018-0248]
RIN 2126-AC19
Hours of Service of Drivers
AGENCY: Federal Motor Carrier Safety Administration (FMCSA), DOT.
ACTION: Notice of proposed rulemaking (NPRM).
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SUMMARY: FMCSA proposes amendments to its hours-of-service (HOS)
requirements to provide greater flexibility for drivers subject to the
HOS rules without adversely affecting safety. This would be
accomplished by altering the short-haul exception to the record of duty
status (RODS) requirement available to certain commercial motor vehicle
(CMV) drivers, modifying the adverse driving conditions exception,
increasing flexibility for the 30-minute break rule by requiring a
break after 8 hours of driving time (instead of on-duty time) and
allowing on-duty/not driving periods as qualifying breaks from driving,
modifying the sleeper berth exception to allow a driver to spend a
minimum of 7 hours in the berth combined with a minimum 2-hour off-duty
period, provided the combined periods total 10 hours (rather than the
current 8/2 split), and allowing one off-duty break that would pause a
truck driver's 14-hour driving window.
DATES: Comments on this notice must be received on or before October 7,
2019.
ADDRESSES: You may submit comments identified by Docket Number FMCSA-
2018-0248 using any of the following methods:
Federal eRulemaking Portal: http://www.regulations.gov.
Follow the online instructions for submitting comments.
Mail: Docket Management Facility, U.S. Department of
Transportation, 1200 New Jersey Avenue SE, West Building, Ground Floor,
Room W12-140, Washington, DC 20590-0001.
Hand Delivery or Courier: West Building, Ground Floor,
Room W12-140, 1200 New Jersey Avenue SE, Washington, DC 20590, between
9 a.m. and 5 p.m. ET, Monday through Friday, except Federal holidays.
Fax: (202) 493-2251.
To avoid duplication, please use only one of these four methods.
See the ``Public Participation and Request for Comments'' portion of
the SUPPLEMENTARY INFORMATION section for instructions on submitting
comments.
FOR FURTHER INFORMATION CONTACT: Mr. Richard Clemente, Federal Motor
Carrier Safety Administration, 1200 New Jersey Avenue SE, Washington,
DC 20590-0001, by telephone at (202) 366-4325, or email at
[email protected]. If you have questions on viewing or submitting material
to the docket, contact Docket Services, telephone (202) 366-9826.
SUPPLEMENTARY INFORMATION: This NPRM is organized as follows:
I. Public Participation and Request for Comments
A. Submitting Comments
B. Viewing Comments and Documents
C. Privacy Act
D. Advance Notice of Proposed Rulemaking
II. Executive Summary
A. Purpose and Summary of the Regulatory Action
B. Summary of Major Provisions
C. Costs and Benefits
III. Abbreviations and Acronyms
IV. Legal Basis for the Rulemaking
V. Background
VI. Overview of Comments to the ANPRM
VII. Discussion of the Proposed Rulemaking
A. Short-Haul Operations
B. Adverse Driving Conditions
C. 30-Minute Break
D. Sleeper Berth
E. Split Duty Provision
F. TruckerNation Petition
G. Other Petitions
H. Compliance Date for the Rulemaking
VIII. International Impacts
IX. Section-by-Section Analysis
A. Section 395.1 Scope of Rules in This Part
B. Section 395.3 Maximum Driving Time for Property-Carrying
Vehicles
X. Regulatory Analyses
A. Executive Order (E.O.) 12866 (Regulatory Planning and
Review), E.O. 13563 (Improving Regulation and Regulatory Review),
and DOT Regulatory Policies and Procedures
B. E.O. 13771 (Reducing Regulation and Controlling Regulatory
Costs)
C. Regulatory Flexibility Act
D. Assistance for Small Entities
E. Unfunded Mandates Reform Act of 1995
F. Paperwork Reduction Act
G. E.O. 13132 (Federalism)
H. E.O. 12988 (Civil Justice Reform)
I. E.O. 13045 (Protection of Children)
J. E.O. 12630 (Taking of Private Property)
K. Privacy
L. E.O. 12372 (Intergovernmental Review)
M. E.O. 13211 (Energy Supply, Distribution, or Use)
N. E.O. 13783 (Promoting Energy Independence and Economic
Growth)
O. E.O. 13175 (Indian Tribal Governments)
P. National Technology Transfer and Advancement Act (Technical
Standards)
Q. Environment (NEPA, CAA)
I. Public Participation and Request for Comments
A. Submitting Comments
If you submit a comment, please include the docket number for this
NPRM (Docket No. FMCSA-2018-0248), indicate the specific section of
this document to which each comment applies, and provide a reason for
each suggestion or recommendation. You may submit your comments and
material online or by fax, mail, or hand delivery, but please use only
one of these means. FMCSA recommends that you include your name and a
mailing address, an email address, or a telephone number in the body of
your document so that FMCSA can contact you if there are questions
regarding your submission.
To submit your comment online, go to http://www.regulations.gov,
put the docket number, FMCSA-2018-0248, in the keyword box, and click
``Search.'' When the new screen appears, click on the ``Comment Now!''
button and type your comment into the text box on the following screen.
Choose whether you are submitting your comment as an individual or on
behalf of a third party and then submit.
If you submit your comments by mail or hand delivery, submit them
in an unbound format, no larger than 8\1/2\ by 11 inches, suitable for
copying and electronic filing. If you submit comments by mail and would
like to know that they reached the facility, please enclose a stamped,
self-addressed postcard or envelope.
FMCSA will consider all comments and material received during the
comment period and may change this proposed rule based on your
comments. FMCSA may issue a final rule at any time after the close of
the comment period.
Confidential Business Information
Confidential Business Information (CBI) is commercial or financial
information that is customarily not made available to the general
public by the submitter. Under the Freedom of Information Act (5 U.S.C.
552), CBI is eligible for protection from public disclosure. If you
have CBI that is relevant or responsive to this NPRM, it is important
that you clearly designate the submitted comments as CBI. Accordingly,
please mark each page of your submission as ``confidential'' or
``CBI.'' Submissions designated as CBI and meeting the definition noted
above will not be placed in the public docket of this NPRM. Submissions
containing CBI should be sent to Brian Dahlin, Chief, Regulatory
Evaluation Division,
[[Page 44191]]
Federal Motor Carrier Safety Administration, 1200 New Jersey Avenue SE,
Washington, DC 20590-0001. Any commentary that FMCSA receives that is
not specifically designated as CBI will be placed in the public docket
for this rulemaking.
B. Viewing Comments and Documents
To view comments, as well as any documents mentioned in this
preamble as being available in the docket, go to http://www.regulations.gov. Insert the docket number, FMCSA-2018-0248, in the
keyword box, and click ``Search.'' Next, click the ``Open Docket
Folder'' button and choose the document to review. If you do not have
access to the internet, you may view the docket online by visiting the
Docket Management Facility in Room W12-140 on the ground floor of the
DOT West Building, 1200 New Jersey Avenue SE, Washington, DC 20590-
0001, between 9 a.m. and 5 p.m. ET, Monday through Friday, except
Federal holidays.
C. Privacy Act
In accordance with 5 U.S.C. 553(c), DOT solicits comments from the
public to better inform its rulemaking process. DOT posts these
comments, without edit, including any personal information the
commenter provides, to www.regulations.gov, as described in the system
of records notice (DOT/ALL-14 FDMS), which can be reviewed at
www.transportation.gov/privacy.
D. Advance Notice of Proposed Rulemaking
Under section 5202 of the Fixing America's Surface Transportation
Act (FAST Act), Public Law 114-94, 129 Stat. 1312, 1534-1535 (Dec. 4,
2015), if a regulatory proposal is likely to lead to the promulgation
of a major rule, FMCSA is required to engage in negotiated rulemaking
or publish an advance notice of proposed rulemaking (ANPRM), unless the
Agency finds good cause that an ANPRM is impracticable, unnecessary, or
contrary to the public interest (49 U.S.C. 31136(g)). FMCSA published
an ANPRM on August 23, 2018 (83 FR 42631).\1\
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\1\ On August 21, 2018, FMCSA posted the ANPRM at https://www.fmcsa.dot.gov/regulations/hours-service-advanced-notice-proposed-rulemaking.
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II. Executive Summary
A. Purpose and Summary of the Regulatory Action
The implementation of the Electronic Logging Device (ELD) rule (80
FR 78292, Dec. 16, 2015) and the ELD's ability to increase compliance
with HOS regulations for drivers of CMVs prompted numerous requests
from Congress and from CMV operators for FMCSA to consider revising
certain HOS provisions. FMCSA has received petitions from multiple
stakeholders requesting relief from the HOS rules, including the Owner-
Operator Independent Drivers Association (OOIDA) and TruckerNation.org
(TruckerNation).\2\ In response, FMCSA published the August 23, 2018
ANPRM, and held five public listening sessions. Today's NPRM addresses
the areas of concern discussed in the petitions, listening sessions,
and in the ANPRM.
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\2\ These are available in the public docket for this rulemaking
at: https://www.regulations.gov/document?D=FMCSA-2018-0248-1210 and
https://www.regulations.gov/document?D=FMCSA-2018-0248-0003,
respectively.
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B. Summary of Major Provisions
Today's proposal would improve efficiency by providing flexibility
in five areas, allowing operators to shift their work and drive time to
mitigate the effect of certain variables (e.g., weather, traffic,
detention times). Today's proposal would extend the maximum duty period
allowed under the short-haul exception available to certain CMV drivers
under 49 CFR 395.1(e)(1) from 12 hours to 14 hours. It would also
extend, from a 100 to a 150 air-mile radius, the maximum distance from
the work-reporting location in which drivers qualifying for the short-
haul exception may operate. FMCSA also proposes to modify the exception
for adverse driving conditions in Sec. 395.1(b)(1) by allowing such
conditions to extend the maximum driving windows under Sec. Sec.
395.3(a)(2) and 395.5(a)(2) by up to 2 hours. The Agency proposes to
make the 30-minute break requirement for property-carrying CMV drivers
in Sec. 395.3(a)(3)(ii) applicable only in situations where a driver
has driven for a period of 8 hours without at least a 30-minute non-
driving interruption. If required, a 30-minute break could be satisfied
with a period, either off duty, in the sleeper berth, or on-duty not-
driving. FMCSA also proposes to modify the sleeper-berth requirements
to allow drivers to take their required 10 hours off duty in two
periods, provided one off-duty period (whether in or out of the sleeper
berth) is at least 2 hours long and the other involves at least 7
consecutive hours spent in the sleeper berth. Neither time period would
count against the maximum 14-hour driving window in Sec. 395.3(a)(2).
Finally, FMCSA proposes to add a new option under Sec.
395.3(a)(3)(iii) that would allow one off-duty break of at least 30
minutes, but not more than 3 hours, during the course of a driver's 14-
hour driving window to extend that period for the length of the break,
provided drivers take at least 10 consecutive hours off duty at the end
of the work shift.
C. Costs and Benefits
The proposed rule would not result in any new costs for regulated
entities. Instead, the proposed rule would result in increased
flexibility for drivers and a quantified reduction in costs for motor
carriers. The Federal Government would incur a one-time electronic
Record of Duty Status (eRODS) software update cost of approximately
$20,000. The proposed change to the 30-minute break requirement would
result in a reduction in opportunity cost, or a cost savings, for motor
carriers. FMCSA estimates that the 10-year motor carrier cost savings
attributable to the proposed changes to the 30-minute break provision,
net of the Federal Government costs, would total $2,348.9 million
discounted at 3 percent, and $1,931 million discounted at 7 percent.
These cost savings are $275.4 million annualized at a 3 percent
discount rate and $274.9 million annualized at a 7 percent discount
rate. All values are in 2017 dollars. There are a number of other
potential cost savings of this proposed rule that FMCSA considered but,
due to uncertainty about driver behavior, could not quantify on an
industry level. These non-quantified cost savings include increased
flexibility resulting from the extension of the duty day and the air-
mile radius for those operating under the short-haul exception; the
increased options for drivers to respond to adverse driving conditions
during the course of their duty period; reducing the need to apply for
exemptions from the 30-minute break requirement; and increased
flexibility afforded to drivers, such as increased options with regard
to on-duty and off-duty time resulting from changes to the 30-minute
break requirement, the sleeper-berth provisions, and the new split duty
period provision.
None of the proposals in today's NPRM would increase the maximum
allowable driving time, but may change the number of hours driven, or
hours worked during a given work shift. The flexibilities in this
proposal are intended to allow drivers to shift their drive and work
time to mitigate the impacts of certain variables (e.g., weather,
traffic, detention times) and to take breaks without penalty when they
need rest; FMCSA does not anticipate that any of these time shifts
would negatively impact drivers' health. As discussed later in this
document,
[[Page 44192]]
FMCSA anticipates that individual drivers may see a change in their
work hours (both driving and non-driving) or vehicle miles traveled
(VMT), but that the proposed changes would not result in an increase in
freight movement or aggregate VMT. Aggregate VMT is determined by many
factors, including market demand for transportation. FMCSA does not
anticipate that the changes proposed in this rule would stimulate
demand in the freight market, but acknowledges that freight loads may
shift from one carrier or driver to another. However, FMCSA also
acknowledges that if drivers and motor carriers cannot meet the current
freight demands, the proposed rule may enable them to rearrange their
daily schedules such that additional loads could be moved, resulting in
an increase in aggregate VMT. FMCSA considers this an unlikely outcome
of the proposed rule, and after consideration of the potential impacts,
has determined that this proposal would not adversely affect driver
fatigue levels or safety.
Table 1--Today's Proposal
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HOS provision Existing requirement Proposed changes Potential impacts
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Short Haul.............................. Drivers using the Would extend the Increase the number of
short haul exception maximum duty period drivers able to take
applicable to drivers allowed under the advantage of the
requiring CDL may not short-haul exception short-haul exception.
be on duty more than available to certain Shift work and drive
12 hours. CMV drivers from 12 time from long-haul
Drivers using the hours to 14 hours. to short-haul, or
short haul exception Would also extend, from driver to
applicable to drivers from a 100 to a 150 driver.
requiring CDL may not air-mile radius, the No increase in freight
drive beyond a 100 maximum distance in movement or aggregate
air-mile radius. which drivers VMT.
qualifying for the
short-haul exception
may operate.
Adverse Driving Conditions.............. A driver may drive and Would allow a driver Increase the use of
be permitted or to use the adverse the adverse driving
required to drive a driving conditions condition provision.
commercial motor exception to extend Allow driving later in
vehicle for not more the maximum ``driving the work day,
than 2 additional windows'' by up to 2 potentially shifting
hours beyond the hours. This proposed forward the hours
maximum time allowed. change would apply driven and VMT
However, this does for both property- travelled
not currently extend carrying (14-hour Allow drivers time to
the maximum ``driving ``driving window'') park and wait out the
windows''. and passenger- adverse condition or
carrying (15-hour driving slowly
``driving window'') through it. This has
operators. the potential to
decrease crash risk
relative to current
requirements,
assuming drivers now
drive through adverse
conditions
No increase in freight
volume or aggregate
VMT, as adverse
conditions cannot be
planned for in
advance.
30 Minute Break......................... If more than 8 Would make the 30- Increase the on-duty/
consecutive hours minute break non-driving time by
have passed since the requirement for up-to 30 minutes, or
last off-duty (or property-carrying CMV allow drivers to
sleeper berth) period drivers applicable reach their
of at least half an only in situations destination earlier.
hour, a driver must where a driver has No anticipated fatigue
take an off-duty driven for a period effect because
break of at least 30 of 8 hours without at drivers continue to
minutes before least a 30-minute be constrained by the
driving. interruption. If 11-hour driving limit
required, a 30-minute and would continue to
break could be receive on-duty/non-
satisfied with a non- driving breaks from
driving period, the driving task.
either off duty, in Additionally, drivers
the sleeper berth, or are enabled to take
on-duty not-driving. off-duty breaks when
needed via the split-
duty day provision.
Minimal or no change
to hours driven or
VMT, as the current
off-duty break only
impacts these factors
if the schedule
required driving late
within the 14-hour
driving window.
Split-Sleeper Berth..................... A driver can use the Would modify the Allow one hour to be
sleeper berth to get sleeper-berth shifted from the
the ``equivalent of requirements to allow longer rest period to
at least 10 drivers to take their the shorter rest
consecutive hours off required 10 hours off- period.
duty.'' To do this, duty in two periods, Potentially increase
the driver must spend provided one off-duty the use of sleeper
at least 8 period (whether in or berths because
consecutive hours out of the sleeper drivers using a berth
(but less than 10 berth) is at least 2 have two additional
consecutive hours) in hours long and the hours to complete 11
the sleeper berth. other involves at hours of driving (by
This rest period does least 7 consecutive virtue of excluding
not count as part of hours spent in the the shorter rest
the 14-hour limit. A sleeper berth. period from the
second, separate rest Neither time period calculation of the 14-
period must be at would count against hour driving window).
least 2 (but less the maximum 14-hour No anticipated effect
than 10) consecutive driving window. on fatigue because
hours long. This aggregate drive
period may be spent limits and off-duty
in the sleeper berth, time remains
off duty, or sleeper unchanged.
berth and off duty Hours driven or VMT
combined. It does may change for an
count as part of the individual driver on
maximum 14-hour a given work shift
driving window. (by increased use of
the sleeper berth).
Total hours driven or
aggregate VMT would
remain the same.
[[Page 44193]]
Split-Duty Provision.................... Once the duty period Would add a new option Allow up to 3 hours in
starts, it runs for for one off duty an off-duty status to
14 consecutive hours, break of at least 30 be excluded from the
after which the minutes, but not more 14-hour driving
driver may not drive than 3 hours, during window.
a commercial motor the course of a Drivers could use this
vehicle (CMV) again driver's 14-hour time to: Rest without
until having another ``driving window'' to the penalty of losing
10 or more extend that period time in their driving
consecutive hours off for the length of the window, avoid traffic
duty. Nothing stops break, provided that via waiting in a
the running of the drivers take at least parking lot and
``14-hour clock'' 10 consecutive hours increase their VMT
except a minimum 8- off duty at the end efficiency, or
hour period in a of the work shift. mitigate the effect
sleeper berth. on the 14-hour rule
of long detention
times by allowing
driving later in the
work shift.
Minimizing the effect
on fatigue because
drivers could use the
voluntary pause to
rest, off-setting any
potential effect of
driving later in the
work shift.
Depending on the
situation, hours
driven and VMT on a
given work shift
could: Remain the
same but shift within
the driving window;
decrease the hours
driven by increasing
VMT per hour; allow
the driver to finish
more work during the
current work shift
instead of postponing
it to the next one.
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III. Abbreviations and Acronyms
ANPRM Advance notice of proposed rulemaking
CAA Clean Air Act
CBI Confidential Business Information
CE Categorical Exclusion
CFR Code of Federal Regulations
CMV Commercial motor vehicle
DOT Department of Transportation
ELD Electronic logging device
E.O. Executive Order
eRODS Electronic record of duty status
FAST Act Fixing America's Surface Transportation Act
FMCSA Federal Motor Carrier Safety Administration
FMCSRs Federal Motor Carrier Safety Regulations
FR Federal Register
HOS Hours of service
NEPA National Environmental Policy Act
NPRM Notice of proposed rulemaking
OMB Office of Management and Budget
OOIDA Owner-Operator Independent Drivers Association
RODS Record of duty status
RFA Regulatory Flexibility Act
SCE Safety critical event
Sec. Section
Secretary Secretary of Transportation
SBREFA Small Business Regulatory Enforcement Fairness Act of 1996
TruckerNation TruckerNation.org
UDA United Drivers Association
U.S.C. United States Code
USTA United States Transportation Alliance
IV. Legal Basis for the Rulemaking
This NPRM is based on the authority derived from the Motor Carrier
Act of 1935 (1935 Act) and the Motor Carrier Safety Act of 1984 (1984
Act). The 1935 Act, as amended, provides that ``The Secretary of
Transportation may prescribe requirements for--(1) qualifications and
maximum hours of service of employees of, and safety of operation and
equipment of, a motor carrier; and (2) qualifications and maximum hours
of service of employees of, and standards of equipment of, a motor
private carrier, when needed to promote safety of operation.'' (49
U.S.C. 31502(b)(1), (2)).
The HOS regulations proposed below concern the ``maximum hours of
service of employees'' of both motor carriers and motor private
carriers, as authorized by the 1935 Act.
This NPRM also is based on the authority of the 1984 Act, as
amended, which provides broad concurrent authority to regulate drivers,
motor carriers, and vehicle equipment. It requires the Secretary of
Transportation to ``prescribe regulations on commercial motor vehicle
safety. The regulations shall prescribe minimum safety standards for
commercial motor vehicles.'' The 1984 Act also requires that: ``At a
minimum, the regulations shall ensure that--(1) commercial motor
vehicles are maintained, equipped, loaded, and operated safely; (2) the
responsibilities imposed on operators of commercial motor vehicles do
not impair their ability to operate the vehicles safely; (3) the
physical condition of operators of commercial motor vehicles is
adequate to enable them to operate the vehicles safely . . . ; (4) the
operation of commercial motor vehicles does not have a deleterious
effect on the physical condition of the operators; and (5) an operator
of a commercial motor vehicle is not coerced by a motor carrier,
shipper, receiver, or transportation intermediary to operate a
commercial motor vehicle in violation of a regulation promulgated under
this section. . .'' (49 U.S.C. 31136(a)(1)-(5)).
This NPRM is based specifically on section 31136(a)(2) and, less
directly, sections 31136(a)(3) and (4). To the extent section
31136(a)(1) focuses on the mechanical condition of CMVs, that subject
is not included in this rulemaking. However, as the phrase ``operated
safely'' in paragraph (a)(1) encompasses safe driving practices, this
proposed rule also addresses that mandate. To the extent section
31136(a)(4) focuses on the health of the driver, the Agency addresses
that issue under the section Driver Health Comments, below. As for
section 31136(a)(5), FMCSA anticipates the added flexibility of the
NPRM would not increase the risk of coercion related to HOS rules.
Before prescribing regulations under these authorities, FMCSA must
consider their ``costs and benefits'' (49 U.S.C. 31136(c)(2)(A) and
31502(d)). Those factors are addressed below.
V. Background
The HOS regulations in effect until 2003 were promulgated pursuant
to the Motor Carrier Act of 1935 and then reissued under the Motor
Carrier Safety Act of 1984, along with the rest of the Federal Motor
Carrier Safety Regulations (53 FR 18042, May 19, 1988). The HOS rules
are codified at Part 395 of Title 49 CFR. These regulations were
originally promulgated in 1937, revised several times before 1940, and
then left largely unchanged until 1962. They required 8 hours off
between tours of duty work shifts that could be of indeterminate
length, lasting until the driver accumulated a total of 15 hours on
duty. Concerns that these regulations were outdated and contributed to
driver fatigue led to an effort to incorporate new knowledge about
fatigue and rest, and their effects on safety.
Revisions to the HOS regulations were proposed in an NPRM published
in the May 2, 2000, Federal Register (65 FR 25540). Following reviews
of the comments to the docket and additional study, FMCSA developed a
revised set of HOS regulations. The final rule (the
[[Page 44194]]
``2003 HOS rule'') was promulgated on April 28, 2003 (68 FR 22456), and
took effect on January 4, 2004. A regulatory impact analysis (RIA)
comparing the costs, benefits, and impacts of this rule relative to the
previous rule and several alternatives was prepared in accordance with
the requirements of Executive Order 12866. That RIA, which is available
in the HOS rule docket, showed that full compliance with the 2003 HOS
rule could both save lives and increase productivity compared to full
compliance with the rule then in existence. Much of the safety
advantage of the 2003 HOS rule was shown to come from the mandate for
at least 10 hours off after each tour of duty, and from helping to keep
drivers on a regular 24-hour cycle.
After the 2003 HOS rule had been in effect for several months, it
was vacated by a Federal appellate court. On July 16, 2004, the United
States Court of Appeals for the D.C. Circuit held that FMCSA had not
considered effects of the changes in the HOS rule on drivers' health,
as required by 49 U.S.C. 31136(a)(4). Public Citizen et al. v. FMCSA,
374 F.3d 1209 (D.C. Cir. 2004). Additionally, the court expressed
concerns about several areas of the rule, including:
[ssquf] Permission to drive 11 hours in a tour of duty, rather than
10;
[ssquf] Allowing more hours on duty in a given week, as a result of
the restart provisions;
[ssquf] Allowing drivers to split their off-duty periods into two
parts through the use of sleeper berths; and
[ssquf] Lack of consideration of the use of electronic on-board
recorders.
In response to the court's action, Congress reinstated the 2003 HOS
rule for a year, to give FMCSA a chance to revisit the issues cited by
the court. A new HOS rule was published on August 25, 2005, retaining
most of the provisions of the 2003 rule but requiring drivers using
sleeper berths to spend 8 consecutive hours in the berth and take an
additional 2 hours either off duty or in the sleeper berth; this 2 hour
period must be counted against the 14 hour driving window (70 FR
49978). This established one ``core'' 8-hour period of sleep, as called
for by various scientific research studies, yet provided the driver
flexibility in use of the shorter off-duty period. Drivers, however,
objected to 8 hours in the sleeper berth, and, in general, to the lack
of flexibility provided by the sleeper-berth provisions and 14-hour
rule. The 2005 HOS rule also provided relief to some short-haul
operations using lighter trucks.
Public Citizen and others challenged the August 2005 rule on
several grounds. On July 24, 2007, the D.C. Circuit ruled in favor of
Public Citizen and vacated the 11-hour driving time and 34-hour restart
provisions (Owner-Operator Independent Drivers Association. Inc. v.
FMCSA, 494 F.3d 188 (D.C. Cir. 2007)). The court concluded that FMCSA
had violated the Administrative Procedure Act's requirements by failing
to provide an opportunity for public comment on the methodology of the
Agency's operator-fatigue model, which FMCSA had used to assess the
costs and benefits of alternative changes to the 2005 HOS rule. In
particular, the court found that the Agency had not adequately
disclosed and made available for review the modifications it had made
to the 2003 operator-fatigue model to account for time-on-task (TOT)
effects in the 2005 analysis. The court concluded that FMCSA's
methodology had not remained constant from 2003 to 2005 because the TOT
element in the model was new and constituted the Agency's response to a
defect in its previous methodology. The court concluded that the Agency
violated the Administrative Procedure Act because it failed to give
interested parties an opportunity to comment on the methodology of the
crash risk model that the Agency used to justify an increase in the
maximum number of daily and weekly hours that CMV drivers may drive and
work. The court listed several elements of the way FMCSA calculated the
impact of TOT that it held could not have been anticipated and that
were not disclosed in time for public comment upon them. Turning to
Public Citizen's second argument, the court also found that FMCSA had
failed to provide an adequate explanation for certain critical elements
in the model's methodology. In vacating the increase in the daily
driving limit from 10 to 11 hours, the court found arbitrary and
capricious what it described as FMCSA's ``complete lack of explanation
for an important step in the Agency's analysis,'' the manner in which
it had plotted crash risk as a function of TOT per hours of driving.
The court also found that FMCSA had failed to provide an explanation
for its method for calculating risk relative to average driving hours
in determining its estimate of the increased risk of driving in the
11th hour. In vacating the 34-hour restart provision, the court found
that FMCSA also had provided no explanation for the failure of its
operator-fatigue model to account for cumulative fatigue due to the
increased weekly driving and working hours permitted by the 34-hour
restart provision.
In an order filed on September 28, 2007, the court granted in part
FMCSA's motion for a stay of the mandate. The court directed that
issuance of the mandate be withheld until December 27, 2007.
On December 17, 2007, FMCSA published an Interim Final Rule (IFR)
amending the Federal Motor Carrier Safety Regulations, effective
December 27, 2007, to allow CMV drivers up to 11 hours of driving time
within a 14-hour, non-extendable window from the start of the workday,
following 10 consecutive hours off duty (72 FR 71247). The IFR also
allowed motor carriers and drivers to restart calculations of the
weekly on-duty time limits after the driver has at least 34 consecutive
hours off duty. FMCSA explained that the IFR reinstating the 11-hour
limit and the 34-hour restart was necessary to prevent disruption to
enforcement and compliance with the HOS rule when the court's stay
expired, and would ensure that a familiar and uniform set of national
rules governed motor carrier transportation. Public Citizen immediately
requested the D.C. Circuit to invalidate the IFR. However, on January
23, 2008, the court issued a per curiam order denying Public Citizen's
request. On November 19, 2008, FMCSA adopted the provisions of the IFR
as a final rule (73 FR 69567).
On December 18, 2008, Advocates for Highway and Automotive Safety,
Public Citizen, the International Brotherhood of Teamsters, and the
Truck Safety Coalition (hereafter referred to as ``HOS petitioners'')
petitioned FMCSA to reconsider the research and crash data justifying
the 11-hour driving rule and the 34-hour restart provision. FMCSA
denied the petition on January 16, 2009. On March 9, 2009, the HOS
petitioners filed a petition for judicial review of the 2008 rule in
the D.C. Circuit and, on August 27, 2009, filed their opening brief.
However, in October 2009, DOT, FMCSA, and the HOS petitioners reached a
settlement agreement. DOT and FMCSA agreed to submit a new HOS NPRM to
the Office of Management and Budget (OMB) by July 26, 2010, and to
publish a final rule by July 26, 2011. Subsequently, FMCSA, DOT and the
HOS petitioners agreed to publish the final rule on October 28, 2011.
The parties filed a joint motion to hold the 2009 lawsuit in abeyance
pending publication of the NPRM; the court later accepted that motion.
In 2011, after presenting various alternatives, FMCSA revised some
aspects of the HOS regulations and maintained other provisions. The
2011
[[Page 44195]]
Final Rule could be divided into ``daily'' and ``multi-day''
provisions, which can be expressed as follows:
[ssquf] Drivers of property-carrying CMVs must take at least 30
minutes off-duty no later than 8 hours after coming on duty if they
wish to continue driving after the 8th hour.
[ssquf] Drivers of property-carrying CMVs may drive up to 11 hours
following an off-duty period of at least 10 consecutive hours.
[ssquf] Drivers of property-carrying CMVs may not drive after the
end of the 14th hour after coming on duty following an off-duty period
of at least 10 consecutive hours.
[ssquf] Drivers of property-carrying CMVs may obtain the equivalent
of 10 consecutive hours off duty if they have a period of at least 8
hours in the sleeper berth and a second period of at least 2 hours
either off duty or in the sleeper berth. Compliance is calculated from
the end of the first two periods.
[ssquf] For Drivers of property-carrying CMVs, any period of 7 or 8
consecutive days can begin following a period of at least 34
consecutive hours off duty provided it included 2 periods between 1:00
a.m. and 5:00 a.m.
Several categories of motor carriers and drivers are exempt from
parts of the HOS regulations or from the entire HOS regulation under
the National Highway System (NHS) Designation Act of 1995 (referred to
as the NHS Act) and other statutes.
Public Citizen, the American Trucking Associations, and others
challenged the 2011 final rule on several grounds. On August 2, 2013,
the D.C. Circuit vacated the requirement for short-haul drivers to take
a 30-minute break, but upheld the 2011 rule in all other respects.
American Trucking Associations, Inc., v. Federal Motor Carrier Safety
Administration, 724 F.3d 243 (2013).
The 2015 and 2016 DOT Appropriations Acts and the Further Continuing
and Security Assistance Appropriations Act, 2017
Sec. 133 of the Consolidated and Further Continuing Appropriations
Act, 2015, Public Law 113-235, Div. K, Title I, sec. 133, 128 Stat.
2130, 2711-2713 (Dec. 16, 2014) suspended the 2011 restart provisions,
which required 2 consecutive off-duty periods between 1:00 and 5:00
a.m. and allowed only one restart per week; temporarily reinstated the
pre-2011 restart rule; and required a study of the effectiveness of the
new rule. Sec. 133 of the Consolidated Appropriations Act, 2016, Public
Law 114-113, Div. L., Title I, sec. 133, 129 Stat. 2242, 2850 (Dec. 18,
2015) made it clear that the 2011 restart provisions would have no
effect unless the study required by the 2015 DOT Appropriations Act
showed that those provisions had statistically significant benefits
compared to the pre-2011 restart rule; this Act also expanded the
factors that the Agency was required to evaluate by including driver
health and longevity. The Further Continuing and Security Assistance
Appropriations Act, 2017, Public Law 114-254, Div. A, sec. 180, 130
Stat. 1005, 1016 (Dec. 10, 2016), replaced Sec. 133 of the 2016 DOT
Appropriations Act in its entirety to correct an error and ensure that
the pre-2011 restart rule would be reinstated by operation of law \3\
unless the study required by the 2015 DOT Appropriations Act showed
that the 2011 restart rule had statistically significant benefits
compared to the pre-2011 restart rule. DOT concluded that the study
failed to find statistically significant benefits, and the Office of
Inspector General confirmed that conclusion in a report to Congress.
The pre-2011 restart rule was therefore reinstated by operation of law.
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\3\ Because this study failed to establish a statistically
significant improvement in the initial factors required by Congress,
evaluation of the additional factors added by Congress became moot.
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Executive Order (E.O.) 13771, Reducing Regulation and Controlling
Regulatory Costs, issued on January 30, 2017, directs executive
agencies of the Federal government to ``manage the costs associated
with the governmental imposition of private expenditures required to
comply with Federal regulations'' (82 FR 9339, Feb. 3, 2017). The E.O.
13777, Enforcing the Regulatory Reform Agenda, issued on February 24,
2017, sets forth regulatory reform initiatives and policies to
``alleviate unnecessary regulatory burdens placed on the American
people'' (82 FR 12285, Mar. 1, 2017). In accordance with those
Presidential directives and based upon its experience and expertise,
FMCSA reviewed the driver HOS regulations to determine if revisions
might alleviate unnecessary regulatory burdens while maintaining CMV
driver safety and health and motor carrier safety, as well as the
safety of the public. On May 17, 2018, 5 months after the
implementation of the ELD mandate mentioned above, Administrator
Martinez received a letter signed by 30 Senators (available in the
docket for this rulemaking) expressing support for greater flexibility
in the HOS regulations.
The DOT has longstanding processes to periodically review
regulations and other agency actions.\4\ If appropriate, FMCSA will
revise regulations to ensure that they continue to meet the needs for
which they were originally designed and that they remain justified, in
accordance with applicable executive orders.\5\ On October 2, 2017, DOT
published a Notification of Regulatory Review, stating that it was
reviewing its ``existing regulations and other agency actions to
evaluate their continued necessity, determine whether they are crafted
effectively to solve current problems, and evaluate whether they
potentially burden the development or use of domestically produced
energy resources'' (82 FR 45750). As part of these reviews, DOT sought
public comment on existing rules that are good candidates for repeal,
replacement, suspension, or modification. The HOS regulations and ELDs
were the most common substantive topics discussed in response to the
DOT Notification of Regulatory Review. The HOS regulations were
identified as an area for potential modifications both as a result of
the public comments received and due to changes in tracking HOS
compliance through implementation of the ELD rulemaking. The accuracy
of the electronic data provided to enforcement is much higher than the
information that was previously provided on paper. While the ELD rule
did not change the HOS rules, the accurate recording of driving time by
ELDs highlighted the rigidity of HOS provisions and the practical
ramifications drivers faced.
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\4\ Section 610 of the Regulatory Flexibility Act requires
Federal Agencies to periodically conduct reviews of rules that: (1)
Have been published within the last 10 years; and (2) have a
``significant economic impact on a substantial number of small
entities.'' Agencies publish in the Federal Register the results of
any such rules they reviewed during the past year, as well as a list
of rules to be reviewed the next year.
\5\ See Exec. Order No. 13777, sec. 1, (Mar. 1, 2017, 82 FR
12285) (``It is the policy of the United States to alleviate
unnecessary regulatory burdens placed on the American people or . .
.''); E.O. 13610 (May 14, 2012, 77 FR 28469) (requiring agencies to
conduct retrospective analyses of existing rules to determine
whether they remain justified); E.O. 13563, sec. 6(b) (Jan. 21,
2011, 76 FR 3821) (requiring agencies to submit a plan ``under which
the agency will periodically review its existing significant
regulations to determine whether any such regulations should be
modified, streamlined, expanded, or repealed so as to make the
agency's regulatory program more effective or less burdensome in
achieving the regulatory objectives''); E.O. 12866, sec. 5, (Sept.
30, 1993, pub. 58 FR 51735) (requiring each agency to ``review its
existing significant regulations to determine whether any such
regulations should be modified or eliminated so as to make the
agency's regulatory program more effective in achieving the
regulatory objectives, less burdensome, or in greater alignment with
the President's priorities and the principles set forth in this
Executive order'').
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[[Page 44196]]
The August 23, 2018, ANPRM (83 FR 42631) requested public comment
on four areas pertaining to the HOS rules: Short-haul operations, the
adverse driving conditions exception, the 30-minute break requirement,
and the sleeper-berth provision. The ANPRM also sought public comment
on two petitions for rulemaking relating to the HOS rules, one from
OOIDA and one from TruckerNation.
OOIDA Petition for Rulemaking
On February 13, 2018, OOIDA petitioned FMCSA to amend the HOS rules
to allow drivers to take an off-duty rest break for up to 3 consecutive
hours once per 14-hour driving window. OOIDA requested that the rest
break stop the 14-hour clock and extend the latest time a driver could
drive after coming on duty. However, drivers would still be limited to
11 hours of driving time and required to have at least 10 consecutive
hours off duty before the start of the next work shift.
OOIDA's petition also included a request that the Agency eliminate
the 30-minute break requirement. The organization explained that there
are many operational situations where the 30-minute break requires
drivers to stop when they do not feel tired.
TruckerNation Petition for Rulemaking
On May 10, 2018, TruckerNation petitioned the Agency to revise the
prohibition against driving after the 14th hour following the beginning
of the work shift. As an alternative, the organization requested that
the Agency prohibit driving after the driver has accumulated 14-hours
of on-duty time.
In addition, TruckerNation requested that FMCSA allow drivers to
use multiple off-duty periods of 3 hours or longer in lieu of having 10
consecutive hours off-duty and eliminate the 30-minute break
requirement.
Additional Petitions for Rulemaking
Two additional petitions for rulemaking were received; one from the
United States Transportation Alliance (USTA) and one from the United
Drivers Association (UDA).\6\ The petitions were not discussed in the
ANPRM due to the timing of receipt; however, they were reviewed and
considered in the development of this NPRM.
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\6\ These petitions are available at https://www.regulations.gov/document?D=FMCSA-2018-0248-2550 and https://www.regulations.gov/document?D=FMCSA-2018-0248-0342.
---------------------------------------------------------------------------
The USTA petition proposed an HOS rule that would prohibit driving
after 80 hours on duty in a 7-day period (instead of the 60-hour limit
in Sec. Sec. 395.3(b)(1) and 395.1(b)(1), and allow a 14-hour day for
driving or other work duties. The drivers' remaining 10 hours would
include 2 hours of off-duty time, and 8 hours of sleeper-berth time
could be split into two segments, with a minimum of 2 hours per
segment. The 80-hour clock would be reset by 24 hours off duty. The
petition is included in the docket referenced at the beginning of this
notice.
The UDA proposal maintained the 14/10 HOS rule; however, the 10
hours off duty could be split into two 5-hour sleeper-berth periods.
The weekly on-duty time, after which driving would be prohibited, would
be 80 hours in an 8-day period, with a 24-hour restart, similar to that
proposed by USTA. The petition is included in the docket referenced at
the beginning of this notice.
Public Listening Sessions
FMCSA held a series of public listening sessions following the
release of the ANPRM. These were held in Dallas, Texas, on August 24,
2018; Reno, Nevada, on September 24, 2018; Joplin, Missouri, on
September 28, 2018; Orlando, Florida, on October 2, 2018; and
Washington, DC, on October 10, 2018.\7\ Transcripts of those listening
sessions are available in the public docket for the rulemaking, and the
sessions are available to stream at https://www.fmcsa.dot.gov/mission/policy/public-listening-sessions-hours-service.
---------------------------------------------------------------------------
\7\ Listening sessions were announced in the Federal Register at
83 FR 42631, August 23, 2018; 83 FR 45204, September 6, 2018; 83 FR
47589, September 20, 2018; 83 FR 48787, September 27, 2018, and 83
FR 50055, October 4, 2018. The listening session scheduled for
September 14, 2018 in Washington, DC was canceled and rescheduled.
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VI. Overview of Comments to the ANPRM
The ANPRM asked a series of questions about the four topics and the
two petitions for rulemaking mentioned above, but did not propose any
regulatory changes. FMCSA appreciates the comments submitted. The
Agency requests that individuals responding to the ANPRM comment again
in the context of today's NPRM.
As noted above, FMCSA held a series of listening sessions. Comments
provided at those sessions have been considered in the development of
section VII of this preamble, ``Discussion of the Proposed
Rulemaking.''
In addition, the Agency received more than 5,200 comments on the
ANPRM, including over 1,000 from CMV drivers. Commenters also included
trade associations and industry groups, law enforcement agencies,
safety advocacy groups, motor carriers, and governmental entities. The
majority of ANPRM commenters supported changes to the HOS rules. Of the
issues addressed in the ANPRM, most comments were addressed to the 30-
minute break and the sleeper-berth issues. Drivers and individuals
supported other issues raised in the ANPRM or petitions, especially
extending the short-haul duty period from 12 hours to 14 hours. Many
drivers and individual commenters were in favor of extending the
maximum driving window by 2 hours in the event of adverse driving
conditions. A few driver and individual commenters requested that the
definition of ``adverse driving conditions'' be changed or clarified,
to make understanding and compliance easier for users and enforcement
personnel. A large number of CMV drivers, trade associations, and
industry groups supported the elimination of the 30-minute break rule.
However, safety advocacy groups opposed changes to the rule due to the
lack of research on its safety impacts.
Many commenters favored expanding the sleeper-berth options to 5/5,
6/4, or 7/3. In addition, they would like to see both qualifying
sleeper-berth periods stop the 14-hour driving window. Most of the
trade associations that commented on short-haul operations approved of
an expansion of the 12-hour driving window to 14 hours. Trade
associations, and other commenters were also in favor of expanding the
adverse driving condition provision to extend the duty period during
which driving is allowed.
Generally, law enforcement and safety advocacy organizations
opposed changes to the current HOS rules. These comments often
referenced safety research identified in prior HOS rulemakings. The
relevant studies are discussed in the sections below.
Most motor carriers that responded were in favor of all the
suggested changes in the ANPRM. Most of the elected officials supported
flexibility for drivers.
Other Comments to the ANPRM
In addition to the four central topics covered by the ANPRM and the
two petitions, FMCSA received comments and suggestions related to other
aspects of the HOS rules.
Driver Health Comments. A number of commenters critiqued the
current HOS rules, stating that the rules negatively impact their
health. However, safety advocacy groups stated that changes to existing
HOS would negatively impact health. The driver
[[Page 44197]]
sleep apnea group, Truckers for a Cause provided research by Dr. Mona
Shattell (3 studies cited in comments) on CMV driver mental health
issues that showed stress caused by the ``14-hour clock'' to be a large
cause and potential health issues. HOS changes which reduce this
documented stress inducer would reduce driver stress and resulting
health issues. They go on to add that fatigue research (Williamson
2001) has clearly shown that there is a fatigue impairment which
greatly increases with being awake more than 14 hours. This impairment
is equivalent to blood alcohol content (BAC) of .02% at 15 hours and
.04% at 16 hours. With .04% being legally intoxicated for a CMV driver
it is reasonable that HOS regulations should restrict driving beyond a
14 hour work day limit unless there has been reasonable restorative
rest. The American Academy of Sleep Medicine focuses almost exclusively
on the issue of fatigue--as it relates to driver health and some of the
proposed changes. According to AASM, ``these proposed changes would
occur in the setting of other common sleep disorders, such as sleep
apnea, shift work sleep disorder, or insufficient sleep, which increase
the risk of drowsy driving . . . . Given the large body of evidence
that sleepiness plays a significant role in crashes, we recommend
against the proposed relaxation of the present rules, in the best
interest of not only commercial drivers' health and safety, but also
public safety as a whole.'' The International Brotherhood of Teamsters
commented on the 12-hour short haul provision, stating that several
studies show that the majority of work-related injuries occurring among
truck drivers result from non-driving work activities. When researchers
further investigated these findings, they found that the types of
injuries experienced by truck drivers varied by industry sector but
were generally associated with falling from heights, trips, slips,
falls, and overexertion due to manual materials handling. Drivers who
are involved in short haul operations experienced occupational injuries
primarily while performing three activities: (1) Operating the truck;
(2) lifting/cranking; and (3) maneuvering into/out of truck cab . . . .
Short-haul drivers will experience increased fatigue as a result of
having to work an expanded number of hours and concurrently experience
more fatigue-related occupational injuries and crashes . . . .'' In
addition, researcher collected data on the driver's heart rates to
estimate metabolic output and determined that such drivers worked in a
job that required a high level of energy.'' FMCSA has considered these
comments, and, as discussed in the Health Impacts section later in this
document, proposes to find that the provisions of this NPRM would not
adversely affect driver health.
Economic and Research Data, Surveys, and Studies Submitted to the
Docket. A number of research papers, surveys, and studies, along with
related data, were submitted to the docket. The relevant submissions,
including those made by OOIDA, the American Transportation Research
Institute (ATRI), and the Insurance Institute for Highway Safety
(IIHS), have been considered and are discussed in the draft RIA for
this NPRM, available in the docket. Other studies had been considered
in previous rulemakings, were out of scope for this rule, or had data
limitations.
Scope of Rulemaking. A number of the commenters raised HOS issues
beyond the topics identified in the ANPRM. Many commenters believe
driver pay is too low for the responsibilities they hold and stated
that if drivers were paid more or compensated by the hour, there would
be less of a need for HOS regulations. Other commenters stated that
third parties such as shippers and receivers, who are not generally
subject to FMCSA regulations, pressure drivers to violate HOS rules or
create an environment where drivers are unable to take advantage of the
work time allowed.
A number of commenters requested that FMCSA consider adopting the
Canadian HOS standards.\8\ These comments were either general or
focused on specific limits, rest breaks, and sleeper-berth provisions.
---------------------------------------------------------------------------
\8\ A copy of the Canadian Commercial Vehicle Drivers Hours of
Service rules is available at https://laws-lois.justice.gc.ca/eng/regulations/SOR-2005-313/page-2.html#docCont (Accessed December 31,
2018). A single-page summary is available at https://www.cvse.ca/national_safety_code/pdf/HOS_Service_Rules.pdf (Accessed December
31, 2018).
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VII. Discussion of the Proposed Rulemaking
A. Short-Haul Operations
Current Regulation
Currently, under 49 CFR 395.1(e)(1), certain CMV drivers do not
have to prepare RODS, use an ELD, maintain supporting documents, or
take a 30-minute break after 8 hours of duty if they meet certain
conditions, including a return to their normal work reporting location
and release from work within 12 consecutive hours after their starting
time. Truck drivers operating under this provision are permitted a 12-
hour work day in which to drive up to 11 total hours. Passenger-carrier
drivers are allowed 10 hours of driving in a 12-hour workday. Under
this short-haul exception, drivers also must operate within a 100 air-
mile radius of their work reporting location. The motor carrier must
maintain time records reflecting certain information. Specifically, the
motor carrier that employs the driver and utilizes this exception must
maintain and retain for a period of 6 months accurate and true time
records showing: The time the driver reports for duty each day; the
total number of hours the driver is on duty each day; the time the
driver is released from duty each day; and the total time for the
preceding 7 days in accordance with 49 CFR 395.8(j)(2) for drivers used
for the first time or intermittently.
Under 49 CFR 395.3(a)(2)-(3), other property-carrying CMV drivers
not utilizing the short-haul exception have a 14-hour window in which
to drive up to 11 hours. Unless otherwise excepted, however, these
drivers must maintain RODS, generally using an ELD. Drivers qualifying
for the 49 CFR 395.1(e)(1) exception have the option to use the 14- or
15-hour driving window applicable to property and passenger carriers,
respectively, under Sec. Sec. 395.3 or 395.5, to fulfill the needs of
the employer on a given day. However, drivers doing so would lose the
benefits of the short-haul exception and be required to prepare RODS
for those days.
Current Exemptions to the Short-Haul Operation Provision
Among other things, section 5521 of the FAST Act requires that the
Agency allow drivers of ready-mixed concrete delivery trucks to return
to the normal work reporting location within 14 hours of coming on duty
rather than 12-hours of coming on duty. FMCSA implemented this
provision on July 22, 2016 (81 FR 47714). FMCSA also has granted
applications for exemptions, allowing an extension of the duty period
in the short-haul provision from 12 to 14 hours, to the following
entities: Waste Management Holdings, Inc., October 25, 2018 (83 FR
53940); American Concrete Pumping Association, November 1, 2018 (83 FR
54975); and National Asphalt Pavement Association, Inc., January 26,
2018 (83 FR 3864). Several additional groups have requested similar
exemptions, but FMCSA has not yet published final decisions.
Comments to the ANPRM
A majority of commenters asserted that FMCSA should extend the duty
[[Page 44198]]
period for short-haul operations from 12 to 14 hours. However, other
commenters, including drivers, disagreed. Some commenters suggested
extending the air-mile radius of this provision to match the
requirements of the 150 air-mile exceptions in Sec. Sec. 395.1(e)(2)
(Operators of property-carrying CMVs not requiring a CDL) and 395.1(k)
(Agricultural operations).
A number of commenters said that they use the short-haul exception
or would like to utilize it.\9\ They gave specific operational examples
under which drivers exceeded one or both of the limits infrequently,
and most described driving as a secondary job function for their
drivers. These commenters stated that operational complexity increased
due to drivers using different statuses. If the overall short-haul
provision were modified, many commenters who supported changing the
short-haul provisions believed they might not need other exemptions and
exceptions.
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\9\ The Association of General Contractors of America commented:
``Since many construction operations are local in nature, the short-
haul exemption has been helpful but limited. Expansion of the short
haul to 150 miles would significantly reduce the impact of HOS on
the construction industry. The short-haul exemption should allow for
an additional 2 hours of on-duty time. These additional 2 hours are
absolutely crucial due to the seasonal nature of construction, and
the fact that drivers in this industry are so frequently waiting at
a jobsite--which we classify as ``on duty not driving''.'' (https://www.regulations.gov/document?D=FMCSA-2018-0248-4947).
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Today's Proposal
This NPRM proposes extending the maximum allowable work day for
property-and passenger-carrying CMV drivers under the Sec. 395.1(e)(1)
short-haul exception from 12 to 14 hours to correspond with the 14-hour
period requirement for property drivers in Sec. 395.3(a)(2). Today's
proposal would also extend the existing distance restriction under this
provision from 100 air miles to 150 air miles to be consistent with the
radius requirement for the other short-haul exception under Sec.
395.1(e)(2). Truck drivers would continue to be limited to 11 hours of
driving time, and passenger carrier drivers to 10 hours of driving
time. All CMV drivers using the Sec. 395.1(e)(1) exception would need
to complete their work day within 14 hours of the beginning of the work
shift.\10\
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\10\ Currently, short-haul drivers can use the adverse driving
conditions provision under Sec. 395.1(b), and this provision would
continue to be available to drivers using the short-haul exception.
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Safety Rationale
Using data from the FMCSA Motor Carrier Management Information
System (MCMIS),\11\ the Agency analyzed concrete mixer crashes before
and after the FAST Act allowed ready-mix concrete operators up to 14
hours to return to their work reporting location under the short-haul
provision. A review of the MCMIS crash data found that extending the
short-haul exemption from 12 to 14 hours did not statistically increase
the share of concrete mixers involved in crashes. This evaluation is
discussed further in the draft RIA. Furthermore, the Agency emphasizes
that the changes to the short-haul exception proposed in today's notice
would allow neither additional drive time during the work day nor
driving after the 14th hour from the beginning of the work day.
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\11\ MCMIS is an information system that captures data from
field offices and through various sources. It is a source for FMCSA
inspection, crash, compliance review, safety audit, and registration
data.
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The extension of the air-mile radius by 50 air miles would allow
carriers to reach customers farther from the work reporting location
while maintaining eligibility for the short-haul exception. FMCSA
believes that extending the air-mile radius would not increase market
demand for services, and thus would not result in increased vehicle
miles traveled (VMT). FMCSA anticipates that if these drivers change
their routes resulting in an increase in VMT (e.g., an increase in
deliveries made per shift), that VMT would be shifted from other
drivers or from the next day. On any given day, a driver may see an
increase or decrease in VMT, but total VMT would not change. It could
also be the case that on days that required driving past the 12th work
hour, the driver was previously operating as a long-haul driver. Under
this rule, the same driver could work the same day (i.e., no change in
work hours or VMT for any driver), with the only change being
eligibility for the short-haul exception. Thus, more drivers or more
trips would now be eligible for the short-haul exception, and thus
excluded from the requirement to take a 30-minute break or prepare
daily RODS, potentially with an ELD. Carriers would have the
flexibility to meet existing and future market demands within the area
that could be serviced within a 14-hour duty day more efficiently
(i.e., not incurring the costs of preparing RODS and retaining
supporting documents for the days drivers did not satisfy the short-
haul limits) while maintaining eligibility for the short-haul
exception. Extending the air-mile radius and the work day would not
extend the maximum allowable driving time. Therefore, the Agency does
not anticipate any adverse impact on safety.
The IIHS provided data it believes indicates interstate truck
drivers operating under the short-haul exception had a significantly
higher crash risk than those not using the exception. FMCSA reviewed
this study and found that it was based on a very small sample size,
which prevented the authors from estimating a matched-pair odds ratio
restricted to drivers operating under a short-haul exception, and was
not nationally representative. Further, the authors noted that other
related factors unobserved in the study may have led to this result.
For example, it is possible that older or more poorly maintained trucks
are used in local operations. The Agency relied on its own data and
analysis discussed earlier in this section, which shows that increasing
the duty day from 12 to 14 hours did not statistically increase the
share of concrete mixers involved in crashes. The Agency's analysis is
discussed in more detail in the RIA. The Agency invites comments on
this determination.
In addressing today's proposed changes to the HOS rules, the agency
encourages motor carriers and other stakeholders to submit driver
record data supporting their comments in a manner that does not reveal
the identity of an individual driver.
Additional Questions
FMCSA seeks additional information and data on the impacts of
expanding short-haul exemption provision, in part to assess its
potential costs and benefits. Specifically:
How will this change impact motor carrier's ability to
enforce HOS rules? What enforcement difficulties may arise from
expanding both the time and distance requirements?
Will drivers drive further or longer in the driving window
under the short haul exception? Would this be different then these
loads being hauled by drivers complying with the ELD requirements?
Will the elimination of the 30-minute break requirement
for drivers that are potentially driving later in their duty period
impact safety?
What cost savings are expected from not having to comply
with the ELD requirements?
Additionally, some commenters to the ANPRM requested that drivers
using the short-haul exception be allowed to end the work shift at a
different location than the one from which they were dispatched. FMCSA
requests public comment about this request, including which segments of
the motor carrier industry would be impacted by this
[[Page 44199]]
potential change and whether this change would have an adverse effect
on safety, or lead to operational changes such as increased driving
time per trip or driving in the 12th and 13th hour after coming on-
duty.
B. Adverse Driving Conditions
Current Regulation
Section 395.1(b)(1) allows 2 additional hours of driving time for
``adverse driving conditions,'' which is defined in Sec. 395.2 as
``snow, sleet, fog, other adverse weather conditions, a highway covered
with snow or ice, or unusual road and traffic conditions, none of which
were apparent on the basis of information known to the person
dispatching the run at the time it was begun.'' Although the rule
allows truck drivers up to 13 hours of driving time under adverse
conditions, instead of the normal 11 hours, it does not provide a
corresponding extension of the 14-hour driving window. Similarly, the
current rule allows drivers of passenger-carrying CMVs up to 12 hours
of driving time under adverse conditions without a corresponding
extension of the applicable duty period.
Comments to the ANPRM
Most commenters generally supported extending the adverse driving
conditions provision to allow for a longer duty period. Some of these
commenters noted that the additional time could be used to enable
drivers to find a safe place to park. However, some commenters objected
to a change to the exception. One commenter stated that due to the
advancements of technology, there is no reason to replace proper trip
planning with a 2-hour extension of the 14-hour driving window. Another
commenter said that extending the 14-hour driving window would allow
operators to be driving at a time in the drivers' work days when crash
risks increase dramatically.
Frequency of Use. Some commenters said that they never used the
adverse driving conditions exception, while others reported wide
variances in the frequency of their use. A trade group provided survey
results indicating an average use of the exception of 1.5 times a
month.\12\ A commenter said drivers should not be allowed to use this
exception more than twice in a 7-day period.
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\12\ Comment from OOIDA with this survey is available at:
https://www.regulations.gov/document?D=FMCSA-2018-0248-3347.
---------------------------------------------------------------------------
Clarify Definition. Many commenters were confused by the current
definition and requested clarification, including how often the
provision may be used. Several specifically asked about the
definition's use of the word ``apparent.'' Some commenters asked that
provisions be expanded to include ``foreseen'' conditions or requested
that ``unforeseen'' be stricken from the definition. Some commenters
pointed out that weather conditions would be known by the dispatcher
before the start of a trip, given today's technology. However, these
commenters still believed the provision should exist. Many commenters
stated that detainment by a third party, such as a shipper or receiver,
during loading and unloading should be considered an adverse condition.
Commenters also requested that the definition be changed to require
``proof'' or that the use of this status be ``verifiable.'' Commenters
asked for a clear definition that would eliminate inconsistent
enforcement practices. Commenters also stated that training drivers in
the use of the regulations should be based on a clarified definition.
Some commenters requested that specific weather conditions be mentioned
in the definition, while others wanted it to also apply to a variety of
road-work conditions.
Some commenters requested that determination of adverse driving
conditions should be a decision of the driver rather than the
dispatcher.
Passenger Carriers. Some commenters requested that ``adverse
passenger conditions'' be taken into consideration in the definition,
and requested that passenger carriers be allowed an extension of the
10-hour drive time due to ``adverse passenger conditions.''
Today's Proposal
Today's proposal would allow a driver up to a 16-hour driving
window (for property carriers) within which to complete up to 13 hours
of driving, or a 17-hour duty period (for passenger carriers) within
which to complete up to 12 hours of driving, if the driver encounters
adverse driving conditions.
Safety Rationale
While the Agency is not aware of any research that is specific to
the impact of adverse conditions on crash risk, the flexibility
provided in the proposal would give drivers greater latitude to respond
to adverse driving conditions by removing the existing penalty that
``shortens'' the driver's duty day if he or she responds cautiously to
an adverse condition in a manner that takes up more duty time. FMCSA
expects the proposed increase to duty time during adverse driving
conditions to incentivize drivers facing these conditions to either
travel at a reduced speed due to road conditions, which is likely to
minimize the risk of crashes, or to suspend CMV operations in order to
wait for the adverse conditions to abate. Further, the Agency stresses
that this proposal would not increase available driving time beyond
what is currently allowed by the exception. FMCSA does not anticipate
that changes to the adverse weather condition provision would lead to
increased VMT in most situations, but might shift when the miles are
driven. This provision is intended to allow you to drive your
anticipated trip within 1 shift (instead of extending it to 2) when
adverse weather would decrease your VMT efficiency, or make road travel
unsafe for a period of up to 2 hours. It is not intended to allow for
additional trips or increased freight movement. FMCSA does not
anticipate that motor carriers would be able to schedule additional
freight movement because adverse conditions can't be planned for in
advance.
FMCSA notes that the Federal Aviation Administration (FAA) and the
Federal Railroad Administration (FRA) both allow duty period extensions
in similar circumstances. FAA allows a 2-hour flight duty period
extension for unforeseen operational circumstances (14 CFR
117.19(a)(1)) and FRA allows a 4-hour duty period extension for
emergencies or work related to emergencies (49 CFR 228.405(c)). FRA's
hours of service laws also do not apply to circumstances involving
``Acts of God'' (49 U.S.C. 21102(a)(3)).
The ``adverse passenger conditions'' mentioned by commenters from
the bus industry do not involve driving conditions external to the
vehicle, such as snow, sleet, fog, and the other conditions listed in
the definition in Sec. 395.2. Adverse passenger conditions are not
within the scope of this rulemaking.
In addressing today's proposed changes to the HOS rules, the agency
encourages motor carriers and other stakeholders to submit driver
record data supporting their comments in a manner that does not reveal
the identity of an individual driver.
Additional Questions
FMCSA seeks additional information and data on the impacts of
changing the adverse conditions provision, in part to assess its
potential costs and benefits. Specifically:
Will this change cause drivers to travel further in
adverse conditions?
Will this change drivers' behavior when encountering
adverse conditions? How so?
[[Page 44200]]
Understanding adverse conditions cannot be predicted, will
drivers utilize this provision more often after this change?
Additionally, FMCSA requests public comment about potential
modifications to the definition of ``adverse driving conditions.''
Specifically, the Agency requests input on the suggestion that
knowledge of the existence of adverse conditions should rest with the
driver rather than the dispatcher. Alternatively, should the
requirement for lack of advance knowledge at the time of dispatch be
eliminated? Should the current definition of ``adverse driving
conditions'' be modified to address other circumstances?
C. 30-Minute Break
Current Regulation
Under 49 CFR 395.3(a)(3)(ii), except for drivers who qualify for
either short-haul exception under Sec. 395.1(e)(1) or (2), 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.\13\
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\13\ The 30-minute rule does not apply to drivers who operate
CMVs within a 100 air-mile radius of their normal work reporting
location and return to that location within 12 hours, as authorized
by Sec. 395.1(e)(1), or to drivers who do not need a CDL, operate
within a 150 air-mile radius of their work reporting location, and
meet certain other requirements, as authorized by Sec. 395.1(e)(2).
---------------------------------------------------------------------------
Comments to the ANPRM
Most commenters (including many drivers) supported removing the 30-
minute break, citing a number of reasons, including stress on the
driver and a perceived increase in crash risk. Many commenters stated
that drivers already take sufficient breaks from driving, and that the
additional break requirement is unsafe or unnecessary. Some commenters,
including safety organizations, expressed support for the 30-minute
break requirement, stating that rest breaks are necessary and should
remain as currently required. Others stated that no other viable
alternative could match the safety benefits achieved by an off-duty,
30-minute break.
Logistics/Time Taken. Some commenters recommended replacing the 30-
minute provision with a rule requiring two breaks or similar expansions
of break time. Drivers liked this idea if they felt it was more in-line
with their existing operations, or if they thought it would be more
advantageous. There was no data provided to show it increased safety.
Commenters were discussing the current requirement, which mandates a
30-minute off-duty break that does not pause the duty clock. A
commenter asked that the rule be revised to provide that the break may
be taken any time during the duty period and that a second break would
not be required if the first one is taken early in the duty period.
Some commenters suggested allowing breaks to be split into smaller
segments, such as 10 minutes. Others stated that the break should be
tied to changes to the sleeper-berth provision.
Total On-Duty Time. Many commenters requested that on-duty non-
driving time, e.g., fueling or loading and unloading, be counted
towards the break time. A number of commenters also requested that
breaks stop the 14-hour on-duty clock. Others said that only breaks
over a certain length and spent in a sleeper berth should stop the 14-
hour on-duty clock.
In Combination with the Split Sleeper-Berth Provisions. Several
commenters recommended that modifications to the break be tied to
sleeper-berth changes. Others suggested that breaks be reviewed in
conjunction with the proposed Split Sleeper-Berth Pilot Program.\14\
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\14\ The Split Sleeper-Berth Pilot Program mentioned in comments
has been canceled. See the discussion below.
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Removal of the 30-Minute Break for All Drivers. Since short-haul
drivers are exempt from the 30-minute break requirement, several
commenters believed that it ought to be eliminated for all drivers.
Incidental Drivers. Multiple commenters represented industries or
operations for which driving is incidental to the principal job of the
driver. A number suggested that their operations be exempt from the 30-
minute break requirement.
Today's Proposal
FMCSA proposes to modify the existing 30-minute break requirement
with a prohibition on driving for more than 8 hours without at least
one 30-minute change in duty status. This would allow 30 minutes of on-
duty, not driving time, off-duty time, or sleeper berth time to qualify
as a break. Many drivers have interruptions of their driving time
during normal business operations, such as loading or unloading a
truck, completing paperwork, or stopping for fuel. Under the current
rules, the break is required to be off-duty time during which no work,
including paperwork, may be performed and is triggered after 8 hours,
regardless of driving time. The flexibility provided in this proposal
would allow these normal breaks from driving (i.e., ``time on task'' in
the research literature) to count as an interruption of the 8 hours of
driving status, provided the break lasts at least 30 minutes.
Additionally, these proposed changes to the 30-minute break provision
proposed by today's rule would not allow an increase in maximum driving
time during the work shift or driving after the 14th hour from the
beginning of the work shift.
Safety Rationale
In today's NPRM, the Agency is reconsidering the value of off-duty
breaks relative to on-duty breaks. Based on comments received, the
Agency has taken another look at the Blanco, et al. (2011),\15\ study
to determine the applicability of its findings to the 30-minute break
requirement.
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\15\ Blanco, M., Hanowski, R., Olson, R., Morgan, J., Soccolich,
S., Wu, S.C., & Guo, F. (2011) ``The Impact of Driving, Non-Driving
Work, and Rest Breaks on Driving Performance in Commercial Motor
Vehicle Operations.'' Available in this rulemaking docket.
---------------------------------------------------------------------------
While Blanco found that off-duty breaks resulted in a greater
decrease in subsequent safety critical events (SCE) than on-duty
breaks, many of the breaks were between 30 and 59 minutes in length,
casting doubt on the findings' applicability to a strict 30-minute
break.\16\ Furthermore, the off-duty breaks in the Blanco study were
voluntary and many were taken in the sleeper berth. Both of these
elements deviate from the current environment where a rigid 30-minute
rest break requirement forces drivers to go off-duty regardless of
whether they feel fatigued or have space to rest. Thus, the study
participants could have experienced off-duty breaks that were more
beneficial in nature than the off-duty breaks taken as a result of the
2011 final rule, as the study participants likely opted to take off-
duty breaks as a countermeasure to fatigue.
---------------------------------------------------------------------------
\16\ In reviewing the Blanco study, it was determined that there
were 3,171 breaks of 30 minutes or longer used in the analysis. It
should be noted that there were relatively few off-duty breaks--only
211 off-duty breaks, which was less than 6.7 percent of the total
number of breaks.
---------------------------------------------------------------------------
Lastly, Blanco categorized breaks from driving into four groups;
Rest During Duty Period (Type 1), Work During Duty Period (Type 2),
Rest During Duty Period/Off Duty (Type 3), and Off-Duty (Type 4). Break
Type 1 and Type 4 include resting activities such as eating and
sleeping, and break Type 3 is a combination of Type 1 and Type 4 breaks
such that it also includes rest activities. The Blanco study collected
data from November 2005 to March 2007, when the regulatory guidance
required that any time spent in the vehicle cab (with the exception of
the sleeper berth) was considered on-duty
[[Page 44201]]
time. This would include in-cab activities that after 2011 could be
considered off-duty, such as eating or taking naps. As such, while the
Blanco study analyzes the reduction in SCEs for Type 1 and Type 4
breaks separately, under the present regulatory structure they would
likely both be considered off-duty breaks and thus would fit into Type
4; Off-Duty Break. Using the published data in the Blanco study, FMCSA
recalculated the magnitude of SCE reduction for an off-duty break using
the break frequency published in the study for break Type 1, Type 3,
and Type 4. This calculation resulted in a 33 percent SCE reduction,
which is lower than the 51 percent for Type 4 breaks alone, and very
close to the 30 percent reduction for Break Type 2.\17\ FMCSA
acknowledges that this result is not precise due to the limitations of
the available data. Multiple break types could make up a single break,
such that the summation of the break frequency by type can be more than
the total number of breaks, and the magnitude of SCE reduction would
likely be slightly different than what was calculated above. What is
clear is that the magnitude of SCE reduction that Blanco attributed to
off-duty breaks is larger than the SCE reduction that would be
attributable to the off-duty 30-minute breaks required under the 2011
HOS rule (those that would be made up of Type 1, Type 3, Type 4 breaks
as defined by Blanco). In light of this recent review, it appears that
FMCSA placed too great a value on off-duty breaks, compared to other
types of breaks described above. What seems to be consistent in the
Blanco study was that breaks of any type reduced SCEs. Therefore, the
Agency proposes to change the break provision to allow the driver to
take a break while on duty but not driving, rather than requiring the
time to be off duty.
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\17\ It is FMCSA's position that the calculated 3% difference in
SCE reduction should not be considered to correspond directly to a
difference in crash rates. This is because SCEs are a much more
common event than crashes, which results in the likelihood that a
30% reduction and a 33% reduction in SCEs may have the same impact
on overall crash rates.
---------------------------------------------------------------------------
Further, the Agency is proposing to tie the break requirement to
eight hours of driving time rather than eight consecutive hours since
the driver's last off-duty or sleeper berth period of at least 30
minutes. Based on the discussion above, FMCSA believes that on-duty
breaks can have essentially the same SCE reduction as off-duty breaks.
Tying the break requirement to driving time is in line with this
finding. Many commenters to the ANPRM stated that the current 30-minute
break provision requires them to go off duty after eight hours of on-
duty time, even though they may not have driven for a long period of
time when the rule requires a stop. FMCSA required the 30-minute break
in the 2011 HOS rule based on literature that found a break from the
driving task would lead to a reduction in SCEs in the hour after a
break was taken. If drivers' schedules include time periods of at least
30-minutes in an on-duty/non-driving status, they are receiving the
intended benefits of the current requirement. FMCSA continues to
believe that a break from driving is important for safety, but
acknowledges that the changes in today's proposed rule would be less
burdensome for carriers and drivers while achieving the same goal--a
break from the driving task. These proposed changes may result in a
decrease in off-duty breaks, but FMCSA anticipates that any potential
effect on fatigue from fewer off-duty breaks will be offset or
minimized by continuing to require a break from the driving task.
Further, as explained below, this proposal would allow drivers to take
an off-duty break when they believe it would be most helpful at
preventing them from driving while fatigued, as opposed to requiring a
break regardless of the warning signs of fatigue, without impacting
their 14-hour driving window. As an example, consider a driver who
under the current requirements spends two hours in on-duty/not driving
status to start his or her duty period subsequently drives for six
hours, takes the required 30-minute break, and then drives for five
more hours before reaching the 11-hour limit. All other things equal,
the proposed changes would allow this driver to take the break up to
two hours later than under the current requirements, such that the
driver's duty period could consist of an initial two hours in on-duty/
not driving status followed by eight hours of driving, a 30-minute
break, and three hours of driving before reaching the 11-hour limit.
Both under the current requirements and under the proposed rule, this
hypothetical driver receives the benefits of a break from the driving
task. However, deferral of the break results in the driver driving
later into the day before taking a required break, but driving fewer
hours after it is taken. The Agency cannot say how this temporal shift
in the break would alter the frequency of SCEs before the required
break is taken as compared to driving fewer hours after the break. The
agency requests comments on how to estimate the change in SCEs from
this temporal shift in the 30 minute break. Further, the Agency notes
that for a driver who immediately begins driving at the start of his or
her duty period, he or she may drive eight continuous hours before a
break is required; this is true under the current requirements and
would remain so under the proposed rule.
FMCSA anticipates that the same level of safety can be achieved by
(1) allowing the driver to take a break while on-duty but not driving,
rather than requiring the time to be off-duty, and (2) starting the 8-
hour period when the CMV operator begins driving. The changes to the
30-minute break provision proposed by today's rule do not involve any
increase to the 11-hour driving limit in place today.
Those drivers that work more than 8 hours but do not drive more
than 8 hours may increase their VMT efficiency. These drivers are
currently required to take a 30-minute off-duty break. Under the
proposal, their on-duty/non-driving time would be considered a break
from driving. They would be able to increase their efficiency by a
reduction in off-duty time of up-to 30 minutes, but this would only be
the case if off-duty breaks are not part of their regular operating
schedule, and taken solely as a result of the 30-minute break
requirement.
Drivers that drive for 8 consecutive hours may see an increase in
VMT efficiency. This would occur if their day already has a 30-minute
on-duty period (e.g., waiting at a loading dock) that would occur
regardless of this rule. This on-duty period would meet the break
requirements of the proposed rule. These drivers may also see their VMT
unchanged. This would occur if their day does not contain a 30-minute
on-duty period that could count towards the proposed break requirement.
In this instance, they would need to find a spot to park and take a
break from driving under both today's requirements and the proposed
requirements.
Furthermore, the Agency has reviewed several requests for exemption
from the current 30-minute break requirement. In certain cases, the
Agency has granted limited exemptions after determining, following
notice and comment in the Federal Register, that the exemption would
not result in any decrease in safety.\18\ For example, in
[[Page 44202]]
certain cases the Agency has allowed the break requirement to be
satisfied with on-duty not-driving time. All exemptions require a
carrier to report recordable crashes related to the exemption to the
Agency. However, crashes may involve multiple factors, and might not be
directly attributable to the exemption.
---------------------------------------------------------------------------
\18\ For more information about each of the exemptions, and the
specific conditions under which they were granted, please review the
following notices: the American Trucking Associations, granted
August 21, 2015 (80 FR 50912); the Department of Energy, granted
June 22, 2015 (80 FR 35703); the National Asphalt Pavement
Association, granted January 26, 2018 (83 FR 3864); the National
Tank Truck Carriers, granted April 9, 2018 (83 FR 15221); R&R
Transportation, granted October 2, 2015 (80 FR 59848); the
Specialized Carriers & Rigging Association, granted November 1, 2016
(81 FR 75727); the Department of Defense (DOD) Surface Deployment &
Distribution Command (SDDC), granted October 28, 2013 (78 FR 64265);
the American Concrete Pumping Association, granted March 21, 2017
(82 FR 14595); the National Pork Producers Council, granted June 11,
2014 (79 FR 33634); the California Farm Bureau Federation for bee
transporters, granted June 19, 2015 (80 FR 35425); and the American
Concrete Pavement Association, granted February 6, 2019 (84 FR
2307).
---------------------------------------------------------------------------
FMCSA was able to analyze some MCMIS crash data to provide insight
into the relationship between crash risk and one exemption in
particular. FMCSA granted an exemption on August 21, 2015 (80 FR
50912), allowing operators of vehicles transporting certain hazardous
materials (HM) to satisfy the 30-minute break requirement using
attending time. This exemption was necessary because FMCSA regulations
prohibit operators of vehicles transporting certain HM from leaving
their vehicles unattended (49 CFR 397.5), and thus, they could not
satisfy the off-duty break requirement while maintaining compliance
with the requirement to attend the vehicle.
MCMIS contains counts of crashes where a vehicle with an HM placard
was present, as well as crash counts of all large truck crashes. Using
these data points, FMCSA examined the total number of crashes where a
vehicle with an HM placard was present for the 2 years before and after
the exemption went into effect. From August 22, 2013, through August
21, 2015, there were 7,217 crashes where vehicles with an HM placard
were present, or 2.616 percent of the total crashes involving large
trucks (7,217 HM placard present/275,915 large truck crashes). From
August 22, 2015 through August 21, 2017 there were 7,277 crashes where
vehicles with an HM placard were present, or 2.419 percent of the total
crashes involving large trucks (7,277 HM placard present/300,775 large
truck crashes). This analysis has some limitations in that not all
vehicles transporting HM are large trucks and that crashes cannot be
attributed to the exemption. However, the slight decrease in the HM
placard share of total large truck crashes may suggest that the
exemption allowing attending time to satisfy the break requirement did
not increase crash risk for operators of vehicles transporting certain
HM.
In the years that FMCSA has spent administering these exemptions,
FMCSA has not discovered evidence of adverse safety impacts that would
require withdrawal of any 30-minute exemption. However, in other cases,
FMCSA has denied requests for blanket exemptions because the applicants
were unable to provide an adequate alternative to, or sufficient
information to support relief from, the 30-minute break that meets the
statutory criteria and demonstrates an equivalent level of safety.\19\
---------------------------------------------------------------------------
\19\ For more information about these denials, please review the
following information: the Payne & Dolan/Zenith Tech/Northeast
Asphalt application, denied June 24, 2015 (80 FR 36397); the
Commercial Vehicle Safety Alliance petition, denied August 9, 2016
(T.F. Scott Darling, Administrator, FMCSA, in a letter denying a
petition for rulemaking dated October 28, 2015, to Colin Mooney,
Executive Director, Commercial Vehicle Safety Alliance, August 8,
2016. Available at: https://www.fmcsa.dot.gov/petitions); and the
Transco/McLane application, denied July 18, 2017 (82 FR 32918).
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FMCSA anticipates that an on-duty break from driving would not
adversely affect safety relative to the current requirements as
discussed in connection with the Blanco study, above, but requests
additional data on the safety impacts of this proposal.
In addressing today's proposed changes to the HOS rules, the agency
encourages motor carriers and other stakeholders to submit driver
record data supporting their comments in a manner that does not reveal
the identity of an individual driver.
Additional Questions
FMCSA seeks additional information and data on the impacts of
changing the 30 minute break provision, in part to better assess its
potential costs and benefits. Specifically:
Will you take fewer total breaks from driving with this
change? How many and when would those breaks have occurred during your
route?
Do you expect to still take a 30 minute break if you have
less than 8 hours of drive time? If so, would you take that break on-
duty or off-duty?
If you no longer need to take a 30 minute break, how do
you expect to spend this additional time?
How will this provision change your scheduling and
planning?
Do you expect to drive more miles or hours based on this
change? Do you expect to be able to complete additional ``runs''?
Additionally, the Agency acknowledges that many commenters
specifically asked that the 30-minute break requirement be eliminated,
and has considered that as an alternative under E.O. 12866. However,
without the benefit of further information in this regard, it would not
be appropriate to entirely eliminate the rule. Given that the
flexibility allowed in today's proposal would alleviate many of the
concerns expressed by commenters, FMCSA seeks further information on
the effect of eliminating the break requirement altogether.
Specifically--
(1) What would be the safety impact of eliminating the required
break, potentially allowing up to 11 consecutive hours of driving?
(2) What has been the cost to your company of complying with the
30-minute break rule since the compliance date for that rule, July 1,
2013?
(3) How often do work shifts require an individual to drive more
than 8 hours without at least a 30-minute change in duty status?
(4) Would eliminating the break requirement result in greater cost
savings than the current proposal? If so, what would be the amount of
these cost savings?
D. Sleeper Berth
History
The 2003 HOS rule (68 FR 22456, Apr. 28, 2003, amended by 68 FR
56208, Sept. 30, 2003), introduced the concept of a fixed 14-hour
driving window to help limit potential overly-long periods of
wakefulness and duty hours that could lead to fatigue-related crashes.
The 2005 HOS final rule (70 FR 49978, Aug. 25, 2005) changed the
sleeper-berth provisions to require the equivalent of 10 hours off duty
to be taken in one 8-hour sleeper-berth period, combined with another
2-hour period, either in the sleeper berth, off duty, or a combination
of the two. This established one 8-hour period in which to obtain
restorative rest, yet provided the driver flexibility in use of the
shorter period. Although comments were closely divided on the issue and
research related to the length of the longer rest period was not
definitive, the Agency limited drivers to an 8/2 spilt option. Drivers,
however, have often objected to 8 hours in the sleeper berth, the lack
of flexibility allowed by the sleeper-berth provisions, and 14-hour
rule in general.
Current Regulation
Current HOS rules allow a sleeper-berth user to divide the minimum
10 hours off duty, which are otherwise required to be consecutive, into
two separate periods. Drivers who use
[[Page 44203]]
sleeper berths may take at least 8 consecutive hours of the required
10-hour off-duty period in the sleeper berth. In addition, the driver
using the sleeper-berth exception must take a separate (earlier or
later) period of at least 2 hours off duty, which may be in the sleeper
berth if desired. It does not matter which rest period is taken first.
Comments to the ANPRM
Many commenters to the ANPRM requested increased flexibility in the
sleeper-berth provisions. Some suggested reverting to the pre-2005
split sleeper-berth provisions, which allowed qualifying hourly splits
of 7/3, 6/4, or 5/5.\20\ Some drivers suggested that the longer period
be not less than 7 hours, because they suspected that motor carriers
might require them to take the shortest rest period, regardless of how
the drivers felt. However, several commenters stated that team drivers
should be allowed to take advantage of additional flexibility, such as
a 5/5 split. Safety advocates did not believe the data supported any
changes to the existing sleeper-berth provisions.
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\20\ Before the August 25, 2005 revisions of Sec. 395.1(g),
drivers of property-carrying CMVs were allowed to split sleeper-
berth time into any two periods, as long as neither one was less
than 2 hours, subject to certain restrictions.
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One of the most common concerns raised by CMV drivers has been
that, under the current HOS rules, they do not have the flexibility to
rest when they are tired. Some commenters suggested that sleeper-berth
time splits be allowed to vary from day to day, so long as drivers
accumulated a total of at least 8 hours a day in the berth. Other
commenters suggested that at least 8 hours in the berth should be
logged for every 24-hour period, and once 10 hours are accumulated, the
on-duty clock should be restarted. One commenter recommended
eliminating the split sleeper-berth provision and just allowing ``off-
duty'' time to stop the 14-hour clock. Some drivers stated that
increased flexibility in split options would allow carriers to coerce
drivers to operate when they would prefer not to do so. The perception
from these commenters was that the dispatcher would manipulate the
hours to maximize productivity.
Commenters from multiple segments of the motor carrier industry
stated that sleeper-berth options currently do not suit their specific
needs, and that expanded options would assist their operations.
Commenters stated that parking would be easier if drivers had more
staggered sleeping times and used rest stops at different times.
However, some commenters suggested retaining the current standard, a
sleeper-berth period of at least 8 hours.
Safety Rationale
There is an extensive body of research suggesting that split-sleep
schedules may improve safety and productivity as compared to
consolidated daytime sleep. Mollicone, et al. (2007) \21\ conducted a
laboratory study of 93 healthy adult subjects to investigate
physiological sleep obtained in a range of restricted sleep schedules.
Eighteen different conditions with restricted nocturnal anchor sleep,
with and without diurnal naps, were examined. The study found that
``split sleep schedules are feasible and can be used to enhance the
flexibility of sleep/work schedules involving restricted nocturnal
sleep due to scheduling.'' The researchers concluded that the results
are generally applicable to any continuous industrial operation that
involves sleep restriction, night operations, and shift work.
---------------------------------------------------------------------------
\21\ Mollicone, D.J., Van Dongen, H.P.A., Dinges, D.F. (2007)
``Optimizing Sleep/Wake Schedules in Space: Sleep During Chronic
Nocturnal Sleep Restriction With and Without Diurnal Naps,'' Acta
Astronautica, 60 (2007) 354-361. Available in this rulemaking
docket.
---------------------------------------------------------------------------
Belenky, et al. (2012) \22\ conducted a laboratory study on 53
healthy participants, making a between-group comparison of nighttime, 5
hour/5 hour split, or daytime sleep across a 5-day simulated workweek.
The effect of the three sleep conditions was measured by
polysomnography, Psychomotor Vigilance Task, high fidelity driving
simulator, Digit Symbol Substitution Test, and subjective state, as
well as the long-term health-related biomedical measurements of blood
glucose, IL-6, leptin, testosterone, and blood pressure. In comparison
to consolidated nighttime sleep or split sleep, participants in the
daytime sleep condition slept less and reported (on a subjective
sleepiness scale) that they felt sleepier. With respect to total sleep
time and sleepiness, the findings of this 2012 study suggest that split
sleep is preferable to consolidated daytime sleep which is allowed
under the current regulations.
---------------------------------------------------------------------------
\22\ Belenky, G., Jackson, M.L., Tompkins, L., Satterfield, B.,
& Bender, A. (2012) ``Investigation of the Effects of Split Sleep
Schedules on Commercial Vehicle Driver Safety and Health,''
Washington, DC: FMCSA. Available in the docket for this rulemaking.
---------------------------------------------------------------------------
Short, et al. (2015) \23\ conducted a systematic review of the
sleep, sleepiness, and performance implications of limited wake shift
work schedules. They identified 20 independent studies, including 5
laboratory and 17 field-based studies focused on maritime watch
keepers, ship bridge officers, and long-haul train drivers. Findings
indicate that limited wake shift work schedules were associated with
better sleep and lower sleepiness in the case of (1) shorter time-at-
work, (2) more frequent rest breaks, (3) shifts that start and end at
the same clock time every 24 hours, and (4) work shifts commencing in
the daytime (as opposed to night).
---------------------------------------------------------------------------
\23\ Short, M.A., Agostini, A., Lushington, K., & Dorrian, J.
(2015) ``A Systematic Review of the Sleep, Sleepiness, and
Performance Implications of Limited Wake Shift Work Schedules,''
Scandinavian Journal of Work, Environment and Health, 41(5):425440.
Available at: https://www.ncbi.nlm.nih.gov/pubmed/26103467.
(Accessed January 4, 2019).
---------------------------------------------------------------------------
Soccolich, et al. (2015) \24\ analyzed data that had been
naturalistically collected during a separate study to compare driver
usage of three separate restart methods under the 2005 HOS regulations:
10 consecutive hours off duty, 34 consecutive hours off duty, or the
split sleeper berth provision, which requires a single sleeper berth
period of at least 8 hours. The study also examined the relationship
between the driver's choice of restart method and that driver's safety
performance. The drivers chose which restart method worked best for
their schedule and their preference, and they were free to use any
restart period at any time, as long as they complied with the current
HOS regulations. Safety performance was determined by comparing safety
critical events with baseline data for each driver during the shift
following their chosen restart method. After controlling for individual
driver differences, Soccolich, et al. found that safety performance was
comparable (i.e., not significantly different) between drivers who used
the sleeper berth provision and drivers who chose either the 10- or 34-
hour restart method.
---------------------------------------------------------------------------
\24\ Soccolich, S., Hanowski, R., & Blanco M. (2015). Evaluating
the Sleeper Berth Provision: Investigating Usage Characteristics and
Safety-Critical Event Involvement. (Report No. 17-UI-046). Available
at: https://vtechworks.lib.vt.edu/handle/10919/73954 (accessed June
20, 2019).
---------------------------------------------------------------------------
The above research highlights the value of split-sleep scenarios in
combating driver fatigue, but does not directly speak to the changes
proposed in this rule--allowing a 7/3 ``split'' option, and not
counting either rest period in the calculation of the 14-hour ``driving
window.'' Under the 2003 HOS rule, which initially established the
concept of the 14-hour driving window, drivers were permitted to
accumulate the minimum off-duty period of 10 consecutive hours in four
separate ways: (1) A minimum of 10 consecutive hours off duty; (2) a
minimum of 10
[[Page 44204]]
consecutive hours in a sleeper berth; (3) by combining consecutive
hours in the sleeper berth and off-duty time that total 10 hours; and
(4) by combining two separate sleeper-berth rest periods totaling at
least 10 hours, provided that neither period is less than 2 hours. The
fourth option was the split sleeper-berth option at the time, which
allowed drivers to split their sleeper berth time in any combination
(such as 4/6; 5/5) as long as each period was at least 2 hours, and
totaling a minimum of 10 hours. The rule allowed these periods to be
excluded from the calculation of allowable on-duty and driving time.
This approach resulted in concerns that the 2005 HOS rule intended to
alleviate. The primary issue was the ability of drivers to split their
rest periods into segments that did not provide for an adequate rest
period, such as the 5/5 split. The 2005 rule resulted in more clarity
by relying on the fixed 14-hour ``driving window'' under which only a
rest period of at least 8 hours in the sleeper berth would not count
against the 14-hour driving window. Although comments were closely
divided on the issue and research related to the length of the longer
rest period was not definitive, the Agency limited drivers to an 8/2
spilt option. In developing today's proposal, the Agency reviewed
available research regarding the sleeper berth exception that has been
in place since 2005 to determine if the intention of the regulation--an
adequate longer rest period--can be achieved while providing additional
flexibility.
Research conducted prior to 2003 found that commercial drivers were
getting 5.18 hours of sleep per night, on average (Mitler, et al.
(1997)).\25\ In 2003, FMCSA revised the HOS regulations to provide
drivers with more opportunities for sleep. Research completed after
2003 found an increase in sleep for drivers following the
implementation of the 2003 HOS regulations. Hanowski, et al.
(2007),\26\ conducted a naturalistic driving study with 73 drivers,
collecting and analyzing sleep actigraphy data to determine overall
sleep quantity. The study found that commercial drivers were getting
more sleep under the revised HOS regulations, with an average of 6.15
hours of sleep per 24-hour period (compared to the average of 5.18
hours per night reported by Mitler, et al. in 1997).
---------------------------------------------------------------------------
\25\ Mitler, M.M., Miller, J.C., Lipsitz, J.J., Walsh, J.K.,
Wylie, C.D. (1997) ``The Sleep of Long-Haul Truck Drivers,'' New
England Journal of Medicine, 337, 755-761. Available in the docket
for this rulemaking.
\26\ Hanowski, R.J., Hickman, J., Fumero, M.C., Olson, R.L.,
Dingus, T.A. (2007) ``The Sleep of Commercial Vehicle Drivers Under
the 2003 Hours-of-Service Regulations,'' Accident; Analysis and
Prevention, 39(6), 1140-5. Available in the docket for this
rulemaking.
---------------------------------------------------------------------------
Van Dongen and Mollicone (2013) \27\ conducted a naturalistic
driving study of 106 CMV drivers whose schedules included the HOS
restart provision. The study found that drivers obtained between 6.0
and 6.2 hours of sleep (on average) per 24 hours during duty cycles, as
measured by wrist-worn actigraphy devices.
---------------------------------------------------------------------------
\27\ Van Dongen, H.P.A. & Mollicone, D.J. (2013) ``Field Study
on the Efficacy of the New Restart Provision for Hours of Service,''
(FMCSA-RRR-13-058). Washington, DC: FMCSA. Available in the docket
for this rulemaking.
---------------------------------------------------------------------------
Dinges, et al. (2017),\28\ conducted a naturalistic driving study
to evaluate the operational, safety, fatigue, and health impacts of the
HOS restart provisions. A total of 235 CMV drivers, representative of
the industry, contributed data while working their normal schedules,
with 181 drivers completing all 5 months of the study. Drivers' sleep
times were monitored with wrist-worn actigraphy devices. The study
found that drivers obtained, on average, approximately 6.5 hours of
sleep per day during duty periods.
---------------------------------------------------------------------------
\28\ Dinges, D.F., Maislin, G., Hanowski, R.J., Mollicone, D.J.,
Hickman, J.S., Maislin, D., Kan, K., Hammond, R.L., Soccolich, S.A.,
Moeller, D.D., & Trentalange, M. (2017) ``Commercial Motor Vehicle
(CMV) Driver Restart Study: Final Report,'' (FMCSA-RRR-15-011).
Washington, DC: FMCSA. Available in the docket for this rulemaking.
---------------------------------------------------------------------------
Finally, Sieber, et al. (2014),\29\ conducted a survey of 1,670
long-haul truck drivers at 32 truck stops across the 48 contiguous
United States. The research team used the responses to compute
prevalence estimates for self-reported health conditions and risk
factors. Drivers were asked to report how many hours they slept per
night, on average; researchers compared drivers' self-reported sleep
durations to those reported by sampled working adults in the 2010
National Health Interview Survey (NHIS).\30\ The National Institute of
Occupational Safety and Health study found that:
---------------------------------------------------------------------------
\29\ Sieber, K.W., Robinson, C.F., Birdsey, J., Chen, G.X.,
Hitchcock, E.M., Lincoln, J.E., Akinori, N., & Sweeney, M.H. (2014)
``Obesity and Other Risk Factors: The National Survey of U.S. Long-
Haul Truck Driver Health and Injury,'' American Journal of
Industrial Medicine, 57, 615-626. Available at: https://www.ncbi.nlm.nih.gov/pubmed/24390804. (Accessed January 4, 2019).
\30\ Available at: https://www.ncbi.nlm.nih.gov/pubmed/22624451
(accessed May 6, 2019).
---------------------------------------------------------------------------
26.5 percent of long-haul truck drivers reported that they
slept 6 hours or less per night, compared to 30.0 percent of the
general working population;
51.4 percent of long-haul truck drivers reported that they
slept 6-8 hours per night, compared to 63.9 percent of the general
working population; and
22.1 percent of long-haul truck drivers reported that they
slept more than 8 hours per night, compared to 5.0 percent of the
general working population.
These studies show that long-haul truck drivers are, on average,
getting more sleep than they did prior to the HOS rule change in 2003.
Further, it shows that drivers are likely getting more sleep than other
working adults in the United States.
Maislin, et al. (2001),\31\ showed that it is possible for a person
to avoid physiological sleepiness or performance deficits on less than
7 hours of sleep; the subjects in this study were supplementing their
sleep with longer naps later in the day. Maislin found that a shorter
restricted anchor sleep combined with longer naps can reduce sleepiness
and performance deficits similar to longer duration anchor sleep alone.
This study confirmed that total sleep time per 24-hour period is an
important factor in reducing fatigue and improving performance. Rest
breaks, and especially naps, are an important tool in combating
fatigue, and FMCSA encourages their use. As noted in Wylie (1998),\32\
``[n]aps in trips with judged drowsiness appeared to result in recovery
effect, compared to the relatively high levels of drowsiness seen in
the hour prior to napping.'' Research on napping indicates it does
refresh a driver and improves performance in the near term. Caldwell,
et al. (1997),\33\ found that their subjects performed better after
napping compared to after only resting without sleep. Garbarino (2004)
\34\ found that, in addition to working as a short-term countermeasure
to fatigue experienced during normal working hours, napping ``before
night work can be an effective countermeasure to alertness and
performance deterioration.'' Naps do not have to be long to improve
performance.
[[Page 44205]]
Sallinen, et al. (1997),\35\ found that naps of less than 1 hour most
influenced performance, and a survey of train engineers found that 20-
minute napping was effective for enhancing alertness (Moore-Ede, et al.
(1996)).\36\
---------------------------------------------------------------------------
\31\ Maislin, G., Rogers, N.L., Price, N.J., Mullington, J.M.,
Szuba, M.P., Van Dongen, H.P.A., and Dinges, D., (2001) ``Response
Surface Modeling of the Effects of Chronic Sleep Restriction With
and Without Diurnal Naps,''--Report. Available in the docket for
this rulemaking.
\32\ Wylie, D. (1998) ``Commercial Motor Vehicle Driver
Drowsiness, Length of Prior Principal Sleep Periods, and Naps,''--
Report. Available in the docket for this rulemaking.
\33\ Caldwell, J.S., et al. (1997) ``The Efficacy of Hypnotic-
Induced Prophylactic Naps for the Maintenance of Alertness and
Performance in Sustained Operations,''--Report. Available in the
docket for this rulemaking.
\34\ Garbarino, S., et al. (2004) ``Professional Shift-Work
Drivers Who Adopt Prophylactic Naps Can Reduce the Risk of Car
Accidents During Night Work,''--Report Abstract. Available in the
docket for this rulemaking.
\35\ Sallinen, Harma, M., [Aring]kerstedt, T., Rosa, R.,
Lillqvist, O. (1997) ``Can a Short Napbreak Improve Alertness in a
Night Shift?''--Report. Available in the docket for this rulemaking.
---------------------------------------------------------------------------
The research discussed above demonstrates that drivers are getting
adequate sleep, and that allowing a 7/3 split option would continue to
provide the opportunity for a a longer sleep period commensurate with
current levels of sleep for truck drivers. Further, by excluding the
shorter rest period from the calculation of the 14-hour driving window,
a driver has the ability to obtain needed rest without using available
work time.
The Agency had planned to conduct a pilot program to collect data
on the safety of drivers who split their sleeper-berth time in a
variety of ways. However, as a result of a literature review, and
subsequent comments to the ANPRM and listening sessions, FMCSA
concluded that there was sufficient basis to support limited changes to
the sleeper-berth provision without conducting a pilot program. Today's
proposal would allow drivers additional flexibility in the use of the
sleeper-berth provision.
Today's Proposal
Over the years FMCSA has received comments from motor carriers and
industry associations that the current sleeper-berth provisions are too
rigid and that drivers do not have enough opportunities to stop driving
and take breaks when they are fatigued. The Agency recognizes that
approximately 26 percent of drivers sleep less than 6 consecutive hours
per night and about 51 percent sleep between 6 and 8 consecutive hours
per night based on the NHIS study cited above; some may actually find
it difficult to sleep more than 7 consecutive hours.\37\ However, the
current sleeper-berth provision requires them to be in the berth for 8
consecutive hours thus confining them to the berth for more time than
many of them need for sleeping.
---------------------------------------------------------------------------
\37\ Moore-Ede, M., Mitchell, R.E., Heitmann, A., Trutschel, U.,
Aguirre, A., Hajamavis, H. (1996) ``Canalert '95--Alertness
Assurance in the Canadian Railways,''--Report. Available in the
docket for this rulemaking.
---------------------------------------------------------------------------
Today, FMCSA proposes a modification of the sleeper berth exception
to allow drivers to satisfy the required 10 hours off duty by taking
two off-duty periods, provided that neither period is less than 2
consecutive hours and one period consists of at least 7 consecutive
hours in the berth. This sleeper-berth exception would provide drivers
greater operational flexibility, while affording the opportunity for
the driver to obtain the necessary amount of restorative sleep. Drivers
using this option would be required to obtain one single rest period of
at least 7 consecutive hours, paired with another period of at least 2
hours, provided that a total of 10 hours of off-duty time is achieved.
When paired, neither qualifying period would count against the 14-hour
driving window.
This proposal would ensure that drivers using the sleeper berth to
obtain the minimum off-duty time have at least one rest period of a
sufficient length to have restorative benefits to counter fatigue. This
proposal would also provide for a second rest period that would allow a
driver to have time for a nap or rest break, or provide an opportunity
to attend to personal matters or other activities. A break later in the
day, in which a driver could take a nap, could have a positive impact
on driver performance, especially considering that drivers could be on
an irregular or rotating schedule, getting out of phase with their
natural circadian rhythm. Consistent with the current HOS rules, the
order of the qualifying rest periods does not matter.
Each time an individual takes one of these two rest breaks, he or
she would need to recalculate the on-duty period and driving hours
available. Drivers must be in compliance with the 11-hour driving time
and 14-hour driving window requirements on both sides of the qualifying
rest period. Driving time in the period immediately before and after
each rest period, when added together, must not exceed 11 hours under
Sec. 395.3(a)(3) and must not violate the 14-hour driving window under
Sec. 395.3(a)(2). The time in the period immediately before and after
each rest period, when added together, establish the 14-hour window
within which all driving must be completed. Thus, a CMV driver's
activities between the qualifying split breaks, count towards the
driver's next available 11-hour and 14-hour limits.
An example showing the 11-hour and 14-hour limitations in which the
driver uses the sleeper berth provision might prove helpful. Assume the
driver starts work on day 1 at 7:30 a.m., spends half an hour on duty
(not driving), and then starts driving at 8:00 a.m. She drives for a
continuous 7 hours but then takes a 3-hour off duty break, beginning at
3:00 p.m. She then starts driving again at 6:00 p.m. and drives for 4
hours. At 10:00 p.m., the driver enters the sleeper berth for 7 hours
when she exhausted her 11 hours of driving time clock. She remains in
the sleeper berth until 5:00 a.m. on day 2. (Alternatively, she could
have limited her 3:00 p.m. break to as little as 2 hours and then
restarted driving, but her second break in the sleeper berth would need
to be longer so that combined time equals at least 10 hours.) Under
either scenario, combining the two break periods under the sleeper
berth provision, would allow her to avoid the required 10 consecutive
hours off-duty, which would apply had she relied on the proposed split
duty day provision rather than the sleeper berth exception. She can now
drive again until noon that second day, at which point she runs up
against the 11-hour clock governing driving time (her available hours
are calculated from the end of the initial break period). Suppose
instead of beginning to drive at 5:00 a.m., the driver spent 4 hours on
duty (not driving) and then resumed driving at 9:00 a.m. She would then
need to stop driving at 3:00 p.m. because she exhausted her 14-hour
driving window, even though she drove for only 10 hours. However, note
that a driver could not claim use of both the split duty day provision
and the sleeper berth exception in a single duty day, without violating
the 10 consecutive hour rule.
In addressing today's proposed changes to the HOS rules, the agency
encourages motor carriers and other stakeholders to submit driver
record data supporting their comments in a manner that does not reveal
the identity of an individual driver.
Additional Questions
In today's NPRM, the Agency requests comments on the split rest
periods under the sleeper berth proposal, including not counting either
period toward the 14-hour driving window.
Given the previous discussion of the research showing many drivers
typically sleep a little more than 6 consecutive hours, FMCSA also
requests comments and any supporting data on the possibility of a 6-
and 4-hour split break. Drivers using this option would be required to
obtain one rest period of at least 6 consecutive hours in the sleeper
berth, paired with another period off duty or in the sleeper berth, for
a total of 10 hours of off-duty time.
Specifically FMCSA requests comments on:
How often do you use the sleeper berth provision under the
current regulations? Will you use the sleeper berth provision more or
less if the proposed changes are finalized? How much more or less?
[[Page 44206]]
How will this provision change your scheduling and
planning?
How often would you utilize the 7-3 hour split during an
average week?
Would you expect to get the same amount of sleep in the 7
hour period as in the current 8 hour period?
Do you expect to drive more miles or hours based on this
change? Do you expect to be able to complete additional ``runs''?
E. Split-Duty Period
Current Rule
After being off duty for 10 or more consecutive hours, a driver of
a property-carrying CMV is allowed a period of 14 consecutive hours in
which to drive up to 11 hours. The 14-consecutive-hour driving window
begins when an individual starts any kind of work. The individual may
not drive again after the end of the 14-hour window until he or she has
been off duty for another 10 consecutive hours, or the equivalent of at
least 10 consecutive hours using the sleeper berth option. This 14-hour
window currently may not be extended by off-duty breaks that may occur
during the duty period.
Request
OOIDA petitioned FMCSA to allow property-carrying CMV drivers to
take a single off-duty rest break for up to 3 consecutive hours once
per 14-hour driving window. That rest break would pause the 14-hour
clock for the duration of the break. However, drivers would still be
limited to 11 hours of driving time and required to have at least 10
consecutive hours off duty before starting a new duty period. OOIDA
also requested that the Agency eliminate the 30-minute break.
Comments Related to the Petition
Consistent with the OOIDA petition, a number of commenters
addressed the 14-hour rule, saying that it should be extended by a
break period of up to 3 hours. Many commenters to the ANPRM have stated
that the 14-hour driving window does not comport with the inconsistent
and sometimes unpredictable working conditions encountered during a
duty period. Thus, the current rule leads to unintended consequences of
added stress and potential speeding that result from the need to finish
a run prior to the end of the 14-hour window.
Relevant Research
The Blanco study showed that the SCE rate increased modestly with
increasing work and driving hours. Blanco also found that
``. . . breaks can be used to counteract the negative effects of
time-on-task. The results from the break analyses indicated that
significant safety benefits can be afforded when drivers take breaks
from driving. This was a key finding in the current study and
clearly shows that breaks can ameliorate the negative impacts
associated with time-on-task. The benefits from breaks from driving
ranged from a 30- to 50-percent reduction in the rate of SCE in the
hour following a break, depending on the type of break from driving,
with the most benefit occurring for off-duty (non-working) breaks.''
Today's Proposal
Today's proposal would allow a single break of off-duty time,
ranging from 30 minutes to no more than 3 consecutive hours, to be
excluded from the 14-hour driving window, provided the driver has at
least 10 consecutive hours off duty before the start of his or her next
duty period. A single pause up to 3 hours to the 14-hour clock would
provide significantly more flexibility than allowed under the current
rules. It would allow drivers to take an off-duty break without fear of
exhausting their available hours under the 14-hour clock, which would
also allow them to take additional rest or to avoid traffic
congestion.\38\
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\38\ OOIDA also petitioned for elimination of the current 30-
minute break requirement. The agency's analysis of this issue is
discussed earlier in this document.
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An example under which a driver uses the split duty period might
prove helpful. Assume a driver starts a new workday on duty at 7:30
a.m. and begins driving at 8:00 a.m. At 9:00 a.m., she arrives at a
warehouse and experiences a 3-hour wait. The driver elects to use the
split duty period, recording this time as ``off-duty,'' given she isn't
performing any type of work. At noon, the driver begins to load, a
process that takes 1 hour which she records as on duty, not-driving
time. At 1:00 p.m., the driver starts driving for a consecutive 8 hours
(1:00 p.m.-9:00 p.m.), at which point she must take a 30-minute break
under today's proposal. At 9:30 p.m., however, she may still drive an
additional 2 hours under today's split duty day proposal. She would
need to stop driving at 11:30 p.m. because she would run up against her
maximum driving time--11 hours (even though she would have another hour
available on her maximum driving window). At 11:30 p.m., she starts a
10-consecutive hour off-duty period. She may then resume driving at
9:30 a.m. the following day. Absent the split duty pause, the driver
would have had to stop driving at 9:30 p.m. when she exhausted her 14-
hour driving window.
At 9:30 a.m., assume the driver spends 30 minutes on duty (not
driving), then drives from 10:00 a.m. to 2:00 p.m. She then spends 2\1/
2\ hours at a receiver, unloading part of her load. From 4:30 p.m. to
6:30 p.m., she drives to her next stop where she spends an additional 2
hours unloading (until 8:30 p.m.). She then drives for an hour to a
rest area (9:30 p.m.) where she rests for 3 hours under the proposed
split duty period. At 12:30 a.m. she starts driving. However, at 2:30
a.m. she has exhausted the 14-hour window (adjusted for her 3-hour
pause) and must now take 10 hours off duty before driving, even though
she never exhausted her 11-hour driving limit.
Safety Rationale
Except under the sleeper berth option, current regulations do not
allow drivers to pause the 14-hour clock to take a prolonged break
regardless of how they feel. By not providing credit for a break taken
during a duty period, the existing rules may disincentivize drivers
from voluntarily taking any additional rest breaks beyond those
required by regulation. For drivers who voluntarily take additional
rest breaks, the existing rules may incentivize these drivers to speed
in order to complete their driving prior to the end of the 14-hour
driving window, resulting in increasing crash risk. The split-duty
provision would alleviate these unintended consequences by allowing
drivers to take a break if they feel fatigued, or if their work day
straddles a time period that doesn't provide for meaningful work to be
accomplished (e.g., long detention times). The intent is to give
drivers the flexibility to shift their work and drive time commensurate
with the length of a voluntary off-duty period. FMCSA is aware that
this provision would allow driving up to 17 hours after the last longer
rest period. Some research \39\ has found a higher risk of an SCE when
driving later in the driving window. However, that research did not
examine a prolonged break within the driving window. Nor did that
research consider how driver behavior might change to meet a delivery
time. FMCSA is proposing to allow a voluntary break of up to 3 hours to
mitigate the safety impacts that could result from unpredictable
working conditions, and anticipates that due to the voluntary nature of
the break, drivers would be able to obtain rest that would mitigate
[[Page 44207]]
the potential effect on fatigue of driving later in the work shift.
FMCSA is not aware of research findings pointing to the optimal length
of a pause, but considers 3 hours to be the right balance of
flexibility and safety. FMCSA bases this proposal on the same logic
which allows the 10-hour off-duty period to be split for drivers using
sleeper berths. Research, as described in section VII. D., indicates
benefits of mitigating time on task fatigue through a shorter rest
period combined with a required sleeper berth period. Both provisions
are based on a shorter break paired with a longer rest period. FMCSA
requests comments, research, and data on the optimal length of a pause
that would allow drivers reasonable flexibility to manage operational
variables while ensuring that driving does not occur after too much
time has elapsed since the last longer rest period.
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\39\ Blanco, M., Hanowski, R., Olson, R., Morgan, J., Soccolich,
S., Wu, S.C., & Guo, F. (2011) ``The Impact of Driving, Non-Driving
Work, and Rest Breaks on Driving Performance in Commercial Motor
Vehicle Operations.'' Available in this rulemaking docket.
---------------------------------------------------------------------------
It should be noted that the proposed off-duty break of up to 3
hours is not a unique exception to the 24-hour circadian cycle implicit
in the current 14-hour driving window plus 10 consecutive hours off
duty. Under current rules, drivers are not required to go off duty at
the end of the 14-hour period. They must stop driving, but may remain
on duty to perform other tasks. Post-driving work is most likely if the
driver arrives at a terminal near the end of the 14-hour period and is
required to perform additional work for the motor carrier at that
location. Only when the driver goes off duty does the 10-hour rest
period begin. The work day may thus be longer than 24 hours. On the
other hand, drivers wishing to maximize their driving time may drive up
to 11 hours, take a minimum of 10 hours off duty, and repeat the cycle.
Based on FMCSA experience, this schedule is rare and mostly limited to
drivers making rapid cross-country trips. The result is a 21-hour day,
called a backward rotating cycle. That is a considerable improvement
over the 18-hour day allowed by the FMCSRs until 2003, when a 10-hour
driving limit could be combined with only 8 hours off duty. But in
those two cases, drivers are likely to reach their 60- or 70-hour
``weekly'' on-duty limit more quickly, requiring them to stop driving,
at least for a 34-hour restart. Neither of the current alternatives to
a 24-hour cycle--post-driving work and compressed schedules--requires
the driver to take compensatory off-duty time, yet that is precisely
the added value provided by the proposed split duty day. The off-duty
time required by this provision would enable drivers to take
restorative rest that would counteract, if not eliminate, the effects
of a longer duty day. The preamble to the 2003 final rule included the
following: ``The FMCSA believes that the strict 24-hour work/rest cycle
would be ideal from a scientific viewpoint, but it is simply not
practical and too inflexible to require of the industry. A strict 24-
hour work/rest cycle would cause unavoidable impacts to motor carrier
operations that the agency cannot justify from a safety or economic
standpoint'' (81 FR 22456, 22468, April 28, 2003). That conclusion
remains true today.
When designating a qualifying off-duty period during the course of
a duty day, a driver is not required to document the provision she or
he is employing. However, a driver could not extend the duty period by
employing both the sleeper berth option and split-duty day provision
within the course of a duty period. A driver relying on the split-duty
day provision can extend a duty day up to 17 hours by taking a
qualifying off-duty break (ranging between 30 minutes and 3 hours), but
then must take 10 consecutive hours off-duty before resuming driving.
However, a driver could decide after taking a 3-hour break (or any off-
duty or sleeper berth break of at least 2 consecutive hours) to instead
pair it with a sleeper berth break of 7 hours, (thus totaling 10 hours
off duty) and neither break period would count against the 14-hour
clock. By using the sleeper berth approach, the driver could avoid the
10 consecutive hours off-duty under the split-duty day provision,
provided that she or he satisfies the provisions of the sleeper berth
rule. While the driver would have the option of using either the split-
duty day provision or the sleeper berth option (provided the vehicle
has a sleeper berth), a driver could not take more than a single 3-hour
break, claiming time under both the sleeper berth provision and split-
duty day provision without running afoul of the required 10 consecutive
hours off duty under the split-duty day provision. Additionally, the
split-duty day provision would be available to drivers who cannot rely
on the sleeper berth exception because they are driving vehicles
lacking a sleeper berth.
In addressing today's proposed changes to the HOS rules, the agency
encourages motor carriers and other stakeholders to submit driver
record data supporting their comments in a manner that does not reveal
the identity of an individual driver.
Additional Questions on the Proposal
FMCSA seeks additional information and data on the impacts of the
split-duty period provision, in part to assess its potential costs and
benefits. Specifically:
How will this provision impact the number of driving hours
during a single driving window? How will this provision impact your
total driving hours during a given week or year?
How would this provision impact your regular schedule? How
often would you expect to take advantage of this provision in a given
work week? Why?
What are the expected benefits from utilizing the 3 hour
pause?
Do you expect to use this provision to account for
uncertainty such that trips could be finished on their scheduled
completion day? How often do uncertain factors impact your schedule
such that you are unable to complete a trip during the expected driving
window and must delay delivery until after a 10 hour off-duty period?
Do you expect to be able to complete more trips due to
this provision (i.e., schedule additional freight movement)? How many
additional trips would you expect to plan during a given week or year?
Would you expect to be able to utilize more of the 11
hours of drive time currently available due to the 3 hour pause?
Do you expect this provision to impact drivers' sleep
schedule? How so?
Will this provision allow for drivers to shift off their
circadian rhythm more easily than under current rules?
In a full year, would this provision lead to additional
driving miles and/or driving time?
How often would you take advantage of the full 3 hour
pause as compared to shorter amount of times? Why?
How would you plan to utilize the off-duty time spent
during the 3 hour pause? Would you utilize the time sleeping in a truck
cab more often or other leisure activities more often?
Do you anticipate any fatigue impacts on driving up to the
17th hour of a duty day? How would the up to 3 hour break impact that
fatigue level?
Additional Questions on Allowing Multiple Pauses
FMCSA seeks additional information on whether the pause should be
allowed to be divided and total up to 3 hours. Specifically:
What operations would benefit from multiple off-duty
periods totaling 3 hours?
Are there data and research available to support breaking
up the 3-hour pause into smaller increments?
[[Page 44208]]
Would this flexibility cause drivers to alter their daily
behavior or increase productivity? If so, how?
What would be the impact on fatigue with several smaller
breaks compared to a single period of up to 3 hours?
If the 3-hour break were divided up into smaller
increments, what would be the impact on enforcement when determining
compliance?
Would the added complexity of multiple pauses
substantially add to the time needed for ELD vendors to re-program ELD
software? If so, how much additional time would be needed?
F. TruckerNation Petition
TruckerNation petitioned the Agency to prohibit driving after the
driver has accumulated 14 hours of on-duty time, rather than 14 hours
after the beginning of the work shift. In addition, it petitioned the
Agency to allow drivers to use multiple off-duty periods of 3 hours or
longer in lieu of having 10 consecutive hours off duty. TruckerNation
also requested elimination of the 30-minute break requirement.
Comments Related to the Petition
Commenters voiced both agreement with and opposition to the
petition. Some stated that other changes to HOS rules might yield
better results. Others objected to it on the grounds of safety
concerns.
FMCSA Response
FMCSA has reviewed the TruckerNation petition and notes that it did
not include data or research that would support the request. The
TruckerNation petition would allow use of multiple off-duty periods of
3 hours or longer in lieu of having 10 consecutive hours off-duty or a
split-sleeper rest period of at least 7 hours. This petition has the
potential to allow drivers to operate for long periods of time without
a sufficient longer sleep period. FMCSA believes it is important that
CMV drivers have an opportunity for a longer sleep period. For these
reasons, the Agency is not adopting the TruckerNation petition as
proposed; however, aspects of the TruckerNation petition may be
addressed in alternate ways.
G. Other Petitions
Similar to TruckerNation, the USTA petition provides an alternate
means for splitting up the 10 hours of off-duty time into three
separate periods, some as short as 2 hours, including, e.g., a 2/3/5
split of the 10-hour period. The UDA petition provides for splitting
the 10-hour period into two 5-hour periods. In both proposals, the 34-
hour restart is shortened to 24 hours.
FMCSA Response
FMCSA has reviewed both the USTA and UDA petitions. As discussed
above, no data was provided by the petitioners or available from other
sources to support a proposal to eliminate the opportunity for a CMV
driver to have a longer sleep period. Both petitions would result in
the potential of drivers operating for long periods of time without a
sufficient sleep period. For example, both petitions would allow a
driver to operate for an entire week without a rest period longer than
5 hours. For these reasons, the Agency is not adopting the USTA or UDA
petitions as proposed; however, aspects of both petitions may be
addressed in alternate ways.
H. Compliance Date for the Rulemaking
To determine an appropriate compliance date for any final HOS rule,
FMCSA asks for comments on the time needed for vendors to reprogram
ELDs to conform to the proposed changes as well as time required by
other areas of the motor carrier industry. While today's proposed
changes, if adopted, should not require reprogramming of the basic
requirements of an ELD, the Agency recognizes that many ELDs are set up
to provide information and warnings to the driver or carrier relating
to HOS compliance beyond what the technical specifications governing
ELDs require, thus necessitating modifications in ELD software. Several
ELD manufacturers requested time to implement HOS changes into their
technology and the Agency requests additional information on how long
this might take. Specifically, the Agency seeks comment on whether a 6-
month or 12-month timeframe would provide sufficient time for ELD
manufacturers and the motor carrier industry to conform to the proposed
changes.
VIII. International Impacts
The FMCSRs, and any exceptions to the FMCSRs, apply only within the
United States (and, in some cases, United States Territories). Motor
carriers and drivers are subject to the laws and regulations of the
countries in which they operate, unless an international agreement
states otherwise. Drivers and carriers should be aware of the
regulatory differences among nations in which they operate.
IX. Section-by-Section Analysis
This section includes a summary of the proposed regulatory changes
in 49 CFR part 395, organized by section number and paragraph number.
A. Section 395.1 Scope of Rules in This Part
Sec. 395.1(b)(1): Adverse Driving Conditions
Today's NPRM proposes to modify the exception for drivers of
property- and passenger-carrying CMVs encountering adverse driving
conditions. Specifically, it would allow drivers of property- or
passenger- carrying CMVs to extend their respective driving windows by
up to an additional 2 hours, consistent with the current rules
governing an extension of driving time.
In proposed Sec. 395.1(b)(1), the reference to paragraph (h)(2)
would be corrected to ``paragraph (h)(3),'' to reflect the provision
addressing adverse driving conditions in the State of Alaska. The
phrase ``or duty time during which driving is permitted'' would be
added to reflect the expanded coverage of the adverse driving condition
exception.
Other proposed changes to Sec. 395.1 are editorial in nature to
improve the clarity of the rule.
Sec. 395.1(e)(1): Short-Haul Operations
Today's NPRM proposes to modify the HOS short-haul exception under
which an eligible driver of a CMV is not required to maintain RODS, and
thus does not require an ELD for that day, and is not required to
maintain supporting documents. Specifically, today's proposal would
extend the current ``100 air-mile radius'' under Sec. 395.1(e)(1)(i)
to a ``150 air-mile radius'' and extend the work day period during
which driving and work is allowed under Sec. 395.1 (e)(1)(iii)(A) to a
maximum of 14 hours. The driving time limits and off-duty periods
required before restarting driving would remain unchanged.
References throughout paragraph (e)(1) under which drivers of
``ready-mixed concrete delivery vehicle[s]'' have a 14-hour driving
window would be removed because the proposed change would allow a 14-
hour driving window for all drivers operating under this exception.
Existing paragraph (e)(1)(iii)(C) (proposed paragraph
(e)(1)(iii)(B)) would be modified to extend the 12-hour driving window
applicable to drivers of passenger-carrying CMVs using the short-haul
exception to a 14-hour driving window for consistency with the rule
governing other drivers operating under this exception.
Existing paragraphs (e)(1)(iv)(A), (B), and (C) would be removed as
these
[[Page 44209]]
provisions are duplicative of provisions under Sec. Sec. 395.3 and
395.5. Existing (e)(1)(v) would be redesignated as (e)(1)(iv).
The proposed changes would not alter the current exception
referenced in Sec. 395.1(e)(1)(ii)(A) to a ``driver-salesperson'' or
affect drivers of property-carrying CMVs not requiring a commercial
driver's license who operate under Sec. 395.1(e)(2).
Other proposed changes are stylistic.
Sec. 395.1(g)(1): Sleeper Berths
Today's NPRM proposes to modify the sleeper berth rule applicable
to drivers of property-carrying CMVs who elect to use this exception,
provided that the CMV is equipped with a sleeper berth as defined in
Sec. 393.76. Generally, rather than the current 8- and 2-hour sleeper
berth provision, today's proposal would allow a driver to satisfy the
required 10 hours off duty by taking two off-duty periods, provided
that neither period is less than 2 consecutive hours and one period
consists of at least 7 consecutive hours in the sleeper berth. The two
breaks would need to total 10 hours. Furthermore, under today's
proposal, neither period of time would count against the driver's 14-
hour driving window.
Paragraph (g)(1)(i) would be modified to clarify that this
provision reflects the options available to a driver to satisfy the 10-
hour hour off-duty period required under
Proposed new paragraph (g)(1)(i)(D) would describe an option for a
team driver to take a combination of sleeper-berth time and time in the
passenger seat--an option currently addressed in Sec.
395.1(g)(1)(ii)(C). However, the current provision would be modified to
require at least 7 hours in the sleeper berth rather than the current 8
hours, and would allow up to 3 hours, rather than the current 2 hours,
spent riding in the passenger seat of a CMV.
Proposed paragraph (g)(1)(iii), captioned ``Calculation,'' would
exclude both qualifying rest periods in applying the 14-hour rule.
Existing paragraphs (g)(1)(i)(B) through (g)(1)(i)(C) would be
removed because these requirements are covered elsewhere in part 395.
Specific requirements that pertain to the State of Alaska would be
moved to Sec. 395.1(h).
Proposed paragraphs (g)(1)(ii)(A) and (B) would require that a rest
period consist of no less than 2 hours and that one rest period consist
of at least 7 consecutive hours in the sleeper berth. As stated in
proposed new paragraph (g)(1)(ii)(C), the two breaks would need to
total 10 hours.
Existing paragraph (g)(1)(ii)(C), as it relates to the calculation
point for compliance with the ``equivalent . . . 10 consecutive hours
off duty,'' is deleted as unnecessary in light of the proposed language
making clear that driving time in the period ``immediately before and
after each rest period, when added together'' not violate either the
11- or 14-hour rules. This deletion does not modify how compliance with
the sleeper berth provision is calculated. Other proposed changes are
stylistic.
Sec. 395.1(h): State of Alaska
Today's NPRM would revise the HOS exception applicable to drivers
of property-carrying CMVs in the State of Alaska to clarify the
provision. Specifically, existing paragraph (h)(1) would be
redesignated as new paragraph (h)(1)(i) and proposed paragraphs
(h)(1)(ii)-(iv) would be added to address the required off-duty periods
and use of the proposed sleeper-berth option. These proposed additions
are derived from existing provisions applicable to Alaska under Sec.
395.1(g) and are moved to paragraph (h) for clarity and based upon the
provisions implicit under existing paragraph (h)(1). For example, the
maximum 20-hour duty period under paragraph (h)(1)(ii) need not be
consecutive hours and may be interrupted by any off-duty or sleeper-
berth period. The reference to a 30-minute break under existing Sec.
395.1(g)(1)(i)(B) was inadvertently added as part of a technical
amendment rule (78 FR 58470, Sept. 24, 2015). That change was intended
to address the hour limitations applicable in Alaska, but erroneously
included the reference to a 30-minute break provision--a provision that
was never intended to apply to drivers operating in Alaska, given the
specific rules applicable to such drivers. Today's proposal would
eliminate that reference.
Other proposed changes are editorial in nature to improve the
clarity of the rule.
B. Section 395.3 Maximum Driving Time for Property-Carrying Vehicles
Today's NPRM would allow drivers to pause their 14-hour driving
window and would modify the 30-minute break requirement applicable to
drivers of property-carrying CMVs.
Specifically, proposed Sec. 395.3(a)(3)(ii) (Interruption of
driving time) would modify the requirement that a driver (other than a
driver operating under the short-haul exceptions) may not drive if more
than 8 hours have passed since the last period in which the driver took
a minimum 30-minute off-duty or sleeper-berth break. Instead, the
proposal would provide that a driver may not drive more than 8 hours
without at least a 30-minute interruption in time behind the wheel
whether on duty, off duty, or a combination of both.
Proposed paragraph (a)(3)(iii) (Split-duty period) would be added
to allow drivers the option to break up their 14-hour driving window by
taking a single off-duty break of at least 30 consecutive minutes, but
not more than 3 consecutive hours, extending the driver's 14-hour limit
by the length of the off-duty break. This proposal would make clear
that a break under this provision would not impact the requirement for
a driver to take 10 consecutive hours off under Sec. 395.3(a)(1).
Other proposed changes are editorial in nature and intended to
improve the clarity of the rule.
X. Regulatory Analyses
A. E.O. 12866 (Regulatory Planning and Review and DOT Regulatory
Policies and Procedures as Supplemented by E.O. 13563), and DOT
Regulatory Policies and Procedures
FMCSA has determined that this rulemaking is an economically
significant regulatory action under E.O. 12866 \40\ Regulatory Planning
and Review, as supplemented by E.O. 13563.\41\ It also is significant
under Department of Transportation regulatory policies and procedures
because the economic costs and benefits of the rule exceed the $100
million annual threshold and because of the substantial Congressional
and public interest concerning the HOS requirements (DOT Order 2100.6
dated December 20, 2018).
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\40\ Executive Order 12866 of September 30, 1993. Regulatory
Planning and Review. (58 FR 51735, October 4, 1993).
\41\ Executive Order 13563 of January 18, 2011. Improving
Regulation and Regulatory Review. (76 FR 3821, January 21, 2011).
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An RIA is available in the docket. That document:
Identifies the problem targeted by this rulemaking,
including a statement of the need for the action.
Defines the scope and parameters of the analysis.
Defines the baseline.
Defines and evaluates the costs and benefits of the
action.
The RIA is the synthesis of research conducted specific to current
HOS practices, stakeholder comments, and analysis of the impacts
resulting from changes to the HOS provisions proposed by this NPRM.
Affected Entities
The changes proposed in this NPRM would affect CMV drivers, motor
[[Page 44210]]
carriers, and, except as otherwise exempt under 49 CFR 390.3T(f)(2),
the Federal government. The HOS regulations apply to CMV drivers. FMCSA
obtained driver count information, by carrier operation, from the Motor
Carrier Management Information System (MCMIS), which includes
information submitted to FMCSA by motor carriers the first time the
carrier applies for a DOT number, and then biennially thereafter. Table
2 below displays the 2017 estimate of CMV drivers from MCMIS. With the
current baseline annual number of 6,317,068 CMV drivers (473,617
passenger carrier CMV drivers and 5,843,451 property carrier CMV
drivers), FMCSA then estimated the future baseline number of CMV
drivers who would be affected by the proposed rule annually during the
analysis period of 2020 to 2029. These future baseline projections were
developed by increasing the current baseline 2017 values consistent
with occupation-specific employment growth projections obtained from
the BLS Employment Projections program. As explained in the RIA, FMCSA
computed a weighted average annual compound growth rate of 0.613
percent for passenger vehicle driver employees and 0.588 percent for
truck driver employees. The table below provides the total annual
population of CMV drivers. More detail on these driver counts can be
found in the RIA.
Due to exceptions and exemptions from the HOS regulations, the
total CMV driver population must be broken down based on specific
criteria in order to isolate the population that would be affected by
each provision of today's proposal. With the exception of the adverse
driving condition provision and maximum driving window under the short-
haul exception, the changes proposed in this NPRM would affect only
property-carrying CMV operations. Further, the quantified cost savings
anticipated from the rule are largely a function of the estimated
number of drivers who are affected by the 30-minute break requirement.
In general, those CMV drivers subject to the 30-minute break
requirement exclude the 474,000 passenger carrier drivers, the 3.0
million drivers estimated to operate under the short-haul exception,
and the 19,000 drivers from Alaska (who are not subject to the 30-
minute break requirement). This analysis will refer to drivers affected
by the 30-minute break requirement as CMV truck drivers. The table
below provides estimates of all CMV drivers, and the CMV truck drivers
that are currently subject to the 30-minute break requirement.
Table 2--CMV Truck Driver Population
----------------------------------------------------------------------------------------------------------------
CMV Drivers
Passenger Property subject to the 30-
Year carrier CMV carrier CMV Total CMV drivers minute break
drivers drivers requirement
(A) (B) (C) (D) = (B) + (C) (E)
----------------------------------------------------------------------------------------------------------------
2017.................................... 473,617 5,843,451 6,317,068 2,866,472
2018.................................... 476,522 5,877,791 6,354,312 2,883,317
2019.................................... 479,444 5,912,332 6,391,776 2,900,261
2020.................................... 482,385 5,947,077 6,429,461 2,917,305
2021.................................... 485,343 5,982,025 6,467,368 2,934,449
2022.................................... 488,320 6,017,179 6,505,499 2,951,693
2023.................................... 491,314 6,052,540 6,543,854 2,969,039
2024.................................... 494,328 6,088,108 6,582,436 2,986,487
2025.................................... 497,359 6,123,886 6,621,245 3,004,038
2026.................................... 500,409 6,159,874 6,660,283 3,021,691
2027.................................... 503,478 6,196,073 6,699,551 3,039,449
2028.................................... 506,566 6,232,485 6,739,051 3,057,310
2029.................................... 509,673 6,269,111 6,778,784 3,075,277
----------------------------------------------------------------------------------------------------------------
Summary of Costs
FMCSA evaluated the impacts expected to result from the changes
proposed in the NPRM and anticipates that there would be no new
regulatory costs or increases in existing regulatory costs for the
regulated entities. The NPRM would, however, improve efficiency by
allowing drivers to shift their drive and work time to mitigate the
effect of uncertain variables, resulting in a reduction in costs, or
cost savings, to drivers and motor carriers. The Agency anticipates
that the change to each provision would result in cost savings,
quantitatively estimates the motor carrier cost savings attributable to
the 30-minute break proposal, and qualitatively assesses cost savings
of the remaining impacts resulting from today's NPRM.
30-Minute Break
Today's NPRM proposes to allow on-duty, non-driving time to fulfill
the 30-minute break requirement, as opposed to the current off-duty
requirement. Also, the break would be required after 8 hours of driving
rather than 8 hours of on-duty time. The NPRM would thus reduce the
number of drivers required to take a break (i.e., those drivers whose
schedules include on-duty breaks from driving would not be required to
also take an off-duty break) and it also allows for flexibility in how
drivers spend their time as long as they are not driving. The proposed
rule would result in cost savings to carriers in the form of avoided
losses in driver productivity.
FMCSA values the reduction in driver time spent in nonproductive
activity as the opportunity cost to the motor carrier, which is
represented by the now attainable profit, using three variables: Driver
hours available for labor (i.e., those hours that are currently
required to be off duty, but could be on-duty but not-driving under the
NPRM), an estimate of a typical average motor carrier profit margin,
and the marginal cost of operating a CMV. The estimation of driver
hours stems from the populations of drivers who either (1) drive more
than 8 hours in an average shift, (2) work more than 8 hours in an
average shift but do not drive more than 8 hours, or (3) work less than
8 hours in an average shift. Drivers who fall into category (3) would
be unaffected by the proposed changes. Drivers who fall into category
(2) would receive regulatory relief from the proposal, estimated as
regaining a full half hour per shift. Additionally, drivers who drive
more than 8 hours (category 1), would also receive regulatory relief by
the
[[Page 44211]]
allowance of on-duty, non-driving time to meet the 30-minute break
requirement, estimated as regaining half of the half hour break time
(15 minutes) per shift. The Agency multiplied the time estimated to be
regained by drivers per affected shift, the number of affected shifts,
and the estimated driver population in each driver group to produce
column (A) in Table 3.
As shown in Table 3, the estimate of cost savings is the product of
the total hours saved by drivers (column A), and the estimated hourly
profit for motor carriers (column B). FMCSA estimates the cost savings
resulting from the changes to the 30-minute break provision to be
$275.4 million on an annualized basis at a 3 percent discount rate, and
$274.9 million on an annualized basis at a 7 percent discount rate.
Table 3--Total and Annualized Motor Carrier Cost Savings Due to Changes in Break Provision
--------------------------------------------------------------------------------------------------------------------------------------------------------
CMV Drivers
currently Total cost savings-- Total cost savings-- Total cost savings--
subject to the Total hours Profit per undiscounted 3% discount rate 7% discount rate
Year 30-minute saved hour (2017$) (millions of 2017$) (millions of 2017$) (millions of 2017$)
break
requirement
(A) (B) (C = A x B) ................... ...................
--------------------------------------------------------------------------------------------------------------
2020..................................... 2,917,305 80,582,382 $3.33 ($268.5) ($260.7) ($251.0)
2021..................................... 2,934,449 81,055,933 3.33 (270.1) (254.6) (235.9)
2022..................................... 2,951,693 81,532,267 3.33 (271.7) (248.6) (221.8)
2023..................................... 2,969,039 82,011,401 3.33 (273.3) (242.8) (208.5)
2024..................................... 2,986,487 82,493,350 3.33 (274.9) (237.1) (196.0)
2025..................................... 3,004,038 82,978,132 3.33 (276.5) (231.6) (184.3)
2026..................................... 3,021,691 83,465,762 3.33 (278.1) (226.2) (173.2)
2027..................................... 3,039,449 83,956,258 3.33 (279.8) (220.9) (162.8)
2028..................................... 3,057,310 84,449,636 3.33 (281.4) (215.7) (153.1)
2029..................................... 3,075,277 84,945,914 3.33 (283.1) (210.6) (143.9)
--------------------------------------------------------------------------------------------------------------
Total 10-Year Cost Savings........... .............. .............. .............. ................... (2,348.9) (1,930.5)
--------------------------------------------------------------------------------------------------------------
Total Annualized Cost Savings.... .............. .............. .............. ................... (275.4) (274.9)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Notes:
(a) Total cost values may not equal the sum of the components due to rounding. (The totals shown in this column are the rounded sum of unrounded
components.)
(b) Values shown in parentheses are negative values (i.e., less than zero) and represent a decrease in cost or a cost savings.
Time is a scarce resource, and FMCSA recognizes that forced off-
duty time is not always the drivers' best alternative. Some commenters
claimed that the rigid off-duty requirement forces drivers to rest when
they are not tired and penalizes them for resting. Though the Agency
does not necessarily agree with these commenters' characterization of
the off-duty requirement, it is reasonable to assume that the current
HOS regulations are imposing an opportunity cost on drivers that could
be alleviated by providing drivers greater flexibility. In recent RIAs
for non-HOS regulations, FMCSA has valued the opportunity cost of
drivers' time using their wage rate. In other words, the increased
flexibility provided by the proposal would result in a reduction in
costs, or a cost savings, to drivers equal to the number of hours saved
multiplied by the driver wage rate. The Agency did not account for the
opportunity cost of the driver's time in the 2011 RIA, and thus
hesitates to estimate cost savings resulting from today's proposed
changes. The Agency requests comments on any additional impacts that
have not been discussed above.
FMCSA considered eliminating the break requirement entirely.
Drivers would still use off-duty time when needed or break-up the
driving task using on-duty/non-driving time. Drivers in group 1 would
likely regain 15 minutes of on-duty time, and drivers in group 2 would
likely regain 30 minutes of on-duty time. As in the preferred
alternative, FMCSA assumes that drivers in group 1 would only regain 15
minutes because they need personal time to eat, drink, etc. That time
would continue to be off-duty regardless of eliminating the
requirement. Elimination of the break requirement would seem to provide
additional flexibility beyond the preferred alternative; however, it
would not impact driver behavior relative to the preferred alternative,
and thus would result in an equivalent motor carrier cost savings.
Split-Duty Period
Currently, after being off duty for 10 or more consecutive hours, a
driver of a property-carrying CMV is allowed a period of 14 consecutive
hours in which to drive up to 11 hours. The 14-consecutive hour driving
window begins when an individual starts any kind of work. Subject to an
exception involving use of a sleeper berth, the individual cannot drive
again after the end of the 14-consecutive hour period until he or she
has been off duty for another 10 consecutive hours, or the equivalent
of at least 10 consecutive hours. This 14-hour window currently cannot
be extended by off-duty breaks that may occur during the duty period.
In effect, taking a break penalizes drivers because their available
work hours were spent resting. The 14-hour window was intended to
prohibit drivers from extending their work day by continuing to drive
after taking repeated breaks. However, many commenters to the ANPRM
have stated that the 14-hour driving window does not comport with the
inconsistent and
[[Page 44212]]
sometimes unpredictable working conditions encountered during a duty
period. Thus, the current rule leads to unintended consequences of
added stress and potential speeding that result from the need to finish
a run prior to the end of the 14-hour window.
In an effort to provide more flexibility, but still maintain the
safety achieved by the 14-hour window, today's proposal would allow a
single break of off-duty time, ranging from a minimum of 30 consecutive
minutes, up to 3 consecutive hours, to be excluded from the 14-hour
window, provided that the driver has 10 consecutive hours off-duty
before the start of his or her next duty period. A single pause would
allow drivers desiring to rest to take an off-duty break without fear
of exhausting their available hours under the 14-hour driving window.
This proposal would not result in new requirements or costs but
would allow for additional flexibility by giving drivers the ability to
make informed decisions about their work and driving time. The ATRI
estimated time and cost savings of a scenario similar to the
proposal.\42\ For reasons discussed in the RIA, FMCSA cannot
extrapolate the time savings to any particular driver or trip. However,
the analysis is informative and insightful. In light of the ATRI
analysis, FMCSA believes that allowing drivers to rest when they are
tired or during peak rush-hour or detention times would result in cost
savings to drivers. The Agency requests comments on any additional
impacts that have not been discussed above.
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\42\ American Transportation Research Institute, ``Technical
Memorandum: Hours-of-Service Flexibility''. August 2018. Available
at: http://atri-online.org/2018/08/28/atri-hours-of-service-flexibility-technical-memo/ (Accessed on December 31, 2018).
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Sleeper Berth
Drivers qualifying for the HOS sleeper-berth provision in 49 CFR
395.1(g)(1)(i)(A) and (ii)(A) must, before driving, accumulate the
equivalent of at least 10 consecutive hours off duty. The equivalent
refers to two periods that need not be consecutive: At least 8 but
fewer than 10 consecutive hours in a sleeper berth, and a separate
period of at least 2 hours either in the sleeper berth or off duty, or
any combination thereof. Today's NPRM would continue to allow drivers
using the sleeper berth to obtain their required off-duty time by
taking fewer hours in the sleeper berth. However, drivers using this
option would be required to obtain one rest period of at least 7
consecutive hours in the sleeper berth, paired with another period of
at least 2 hours, such that 10 hours of off-duty time is achieved.
Neither period would count against the 14-hour driving window.
The sleeper berth provision proposed in today's rule allows for
additional flexibility in a driver's duty day by (1) providing for an
optional 1-hour reduction in the amount of time that drivers are
required to spend in the sleeper berth, and (2) excluding both rest
periods when calculating the 14-hour driving window. The Agency expects
that carriers and drivers could realize efficiency gains by the
proposed reduction in time required to be in the sleeper berth and the
exclusion of the shorter off-duty period in the calculation of the 14-
hour driving window. A driver that uses the sleeper berth provision
today must include the shorter rest period in the calculation of the
14-hour window, resulting in an available 12 hours to complete up to 11
hours of driving. Under the proposed rule, drivers would be provided
the ability to choose between split-rest options that would not reduce
their available work time because the shorter rest period would be
excluded from the calculation of the 14-hour driving window. The
Agency, however, lacks data on the use of the sleeper berth provision
today, and the number of drivers that would use it under the proposed
rule. FMCSA thus requests comment on the potential frequency of the use
of the sleeper berth provision today, the change in the use of the
provision that would result from the proposal, and the gains in
efficiency that drivers would experience due to this change.
FMCSA also considered retaining the current split option of 8/2 but
excluding the shorter rest period from the calculation of the 14-hour
driving window. Excluding the shorter rest period from the calculation
of the 14-hour driving window would result in the same per-trip cost
savings estimated for the preferred alternative but would limit the
driver's flexibility. The preferred alternative would allow drivers to
use a 7/3 split option, which is consistent with the split-duty period
proposal in this NPRM and provides flexibility for drivers to shift an
additional hour of their off-duty time in the most optimal way for
their current situation.
FMCSA also considered expanding the sleeper berth options to allow
a 7/3 split, while continuing to count the shorter rest period in the
calculation of the 14-hour driving window. Drivers making use of this
alternative would then have an 11-hour window within which to drive 11
hours. This alternative provides a false sense of flexibility due to
the impractically, and would limit the use of the option to those
drivers that don't anticipate reaching the maximum driving or work
time. Additionally, it would eliminate the cost savings resulting from
increased productivity discussed in the preferred alternative. This
alternative does not meet the Agency objective of providing drivers the
ability to take needed rest breaks while ensuring opportunity for an
adequate rest period.
Short-Haul Operations
Currently, under 49 CFR 395.1(e)(1), drivers do not have to prepare
RODS or use an ELD if they meet certain conditions, including a return
to their work reporting location and release from work within 12
consecutive hours. Drivers operating under this provision are permitted
a 12-hour work day in which to drive up to 11 hours (for passenger
carriers, up to 10 hours) and the motor carrier must maintain time
records reflecting certain information. Specifically, the motor carrier
that employs the driver and utilizes this exception must maintain and
retain for a period of 6 months accurate and true time records showing:
The time the driver reports for duty each day; the total number of
hours the driver is on duty each day; the time the driver is released
from duty each day; and the total time for the preceding 7 days in
accordance with 49 CFR 395.8(j)(2) for drivers used for the first time
or intermittently.
Under 49 CFR 395.3(a)(2)-(3), other property-carrying CMV drivers
not utilizing the short-haul exception have a 14-hour driving window in
which to drive up to 11 total hours. Under 49 CFR 395.5(a)(1)-(2), CMV
drivers operating passenger-carrying CMVs can operate for up to 15
hours after coming on duty. However, unless otherwise excepted, these
drivers must maintain RODs, generally through the use of an ELD. The
drivers qualifying for the 49 CFR 395.1(e)(1) exception currently have
the option to use the 14- or 15-hour duty day in Sec. Sec. 395.3 or
395.5, but may choose not to use the option to avoid keeping RODS.
Additionally, drivers currently qualifying for this HOS short-haul
exception must stay within 100 air-miles of their work reporting
location. In today's NPRM, FMCSA proposes to extend the air-mile radius
from 100 air miles to 150 air miles, consistent with the radius
requirement for the other short-haul exceptions in Sec. 395.1(e)(2).
In the ELD rule, FMCSA anticipated that all drivers employed by
passenger and private non-passenger (i.e., property) carriers
qualifying for the
[[Page 44213]]
short-haul exception would be able to take advantage of the exception.
However, FMCSA received comments on the HOS ANPRM from carriers
discussing their business practices and normal operating conditions,
and how the lack of flexibility in the 12-hour workday limits their
ability to take advantage of the short-haul exception. On many shifts,
drivers return to their work reporting location within 12 hours, but
there are some occasions when drivers need an additional 2 hours in
their workday. This extra time beyond 12 hours could result from
detention time, longer-than-expected customer service stops, traffic,
or other unforeseen events. When this occurs more than 8 days in a 30-
day period, the driver must prepare daily RODS using an ELD as required
by 49 CFR 395.8 (a)(1)(iii)(A)(1). Due to the uncertainty surrounding
the driver's eligibility at the beginning of the workday, the carrier
may choose to have their driver operate as though he or she is not
eligible for the short-haul exception. This results in unnecessary ELD
expenses. One commenter estimated that the proposal would reduce the
required ELDs for its heavy-duty service vehicles by 84 percent,
resulting in annual cost savings of $1.5 million. While this comment is
informative and suggests that the proposed rule would result in cost
savings, FMCSA cannot extrapolate from one carrier's cost savings to
determine the cost savings to all carriers. Thus, while FMCSA expects
the proposal to result in cost savings for the affected entities, those
impacts are not quantified.
The extension of the air-mile radius by 50 air miles would afford
drivers additional flexibility and allow carriers to reach customers
farther from the work reporting location while maintaining eligibility
for the short-haul exception. Extending the air-mile radius would not
extend the driving time. FMCSA does not anticipate that extending the
air-mile radius would increase market demand or result in more VMT.
Rather, more carriers might use the short-haul exception. Carriers
would have the flexibility to meet market demands more efficiently
while maintaining eligibility for the short-haul exception. One
commenter explained that the increased flexibility in the air-mile
radius would reduce the number of vehicles necessary for their
operation, and thus would result in cost savings of approximately $1.7
million per year. Again, motor carriers are very diverse in their
operating structures, and FMCSA cannot extrapolate from one carrier's
cost savings to determine the cost savings to all carriers. While FMCSA
expects the proposal to result in cost savings for the affected
entities, those impacts are not quantified. The Agency requests
comments on the impact of extending the air-mile radius and any
additional impacts that have not been discussed above.
FMCSA also considered limiting the proposal to an extension of the
time required for drivers to return to their work reporting location
from 12 to 14 hours, without changing the air-mile radius requirements.
This alternative would decrease the population eligible for the short-
haul exception relative to the preferred alternative by removing
eligibility for those drivers operating between 100 and 150 air miles.
Decreasing the population affected by the NPRM would decrease any cost
savings resulting from the proposal.
Adverse Driving Conditions
Under the current regulations, drivers qualifying for the HOS
adverse driving conditions provision in 49 CFR 395.1(b)(1) may drive
for no more than 2 additional hours beyond the maximum driving time
allowed under 49 CFR 395.3(a) or 395.5(a) if they encounter adverse
driving conditions after dispatch. The current provision does not allow
for the extension of the 14-hour driving window (or 15 hours on duty
for drivers of passenger-carrying CMVs), and thus cannot be used if the
adverse condition is encountered towards the end of that period. In
today's rule, FMCSA proposes to allow a 2-hour extension of the 14-hour
driving window (or 15 hours on duty for drivers of passenger-carrying
CMVs). This proposal aligns the regulations with the intent of the
adverse driving condition provision, which is to allow drivers
flexibility when faced with unexpected conditions. This proposal would
not increase the available driving time.
The adverse driving conditions provision is intended to provide
flexibility for drivers who encounter adverse conditions which were not
apparent at the time of dispatch. However, it does not currently extend
the driving window, limiting its use. Today's proposal would increase
flexibility by allowing drivers encountering adverse conditions to
extend their driving window by the same 2 hours that currently apply to
driving time. The proposed changes would provide drivers with
additional options to determine the best solution based on their
situation.
The Agency anticipates that the increased options and flexibility
would result in cost savings to drivers, but is unable to quantify them
due to a lack of data regarding the use of the adverse driving
exception. The Agency requests information on current usage of the
adverse driving conditions exception as well as anticipated use under
the proposed rule. The Agency also welcomes comments on possible cost
savings, as well as any additional impacts that have not been discussed
above.
Federal Government eRODS Cost
FMCSA would incur costs to update the existing eRODS software. The
eRODS software is used by safety officials (Federal, State, and local
safety partners) to locate, open, and review output files transferred
from a compliant ELD. The eRODS software consists of two components: a
database containing the HOS requirements and the software component
that compares the compliant ELD output files to the HOS requirements.
The proposed changes to the 30-minute break requirement, sleeper-berth
requirements, and the split duty period would necessitate updates to
the eRODS database that stores the HOS requirements and some minor
programming changes to the compliance algorithm aspects of the
software.
The Department's Volpe National Transportation Systems Center
developed the eRODS software and continues to maintain and update it
when needed. Volpe estimates that the proposed rule would result in
one-time eRODS software update costs of $20,000. This would include
updating the HOS requirements database and minor programing changes to
the software component which consist of five steps: developing a
requirements analysis, design, coding, testing, and deployment of the
updates.
Non-Quantified Costs
There are a number of other potential cost savings of this proposed
rule that FMCSA considered that, due to uncertainty around driver
behavior, could not quantify on an industry level.
FMCSA has granted 5-year exemptions from the requirement to return
to the driver's normal work reporting location within 12 hours of
coming on duty (examples include: (1) Waste Management Holdings, Inc.;
(2) American Concrete Pumping Association; and (3) National Asphalt
Paving Association).\43\ During the
[[Page 44214]]
exemption period, all drivers operating under the exemption must carry
a copy of the exemption; after that period, those entities seeking to
maintain the exemption must reapply. This proposal, if adopted, would
result in cost savings to these entities by alleviating the need to
pursue the exemption process and eliminating compliance with exemption
conditions such as carrying a copy of the exemption applicable to 49
CFR 395.1(e)(1), as well as reallocating the time and resources that
would have been spent on the exemption reapplication. The Federal
government would experience a cost savings equal to the reduction in
time and resources necessary to review, comment on, and make final
determinations on the exemptions. Additional non-quantified cost
savings include increased efficiency afforded to drivers through the
changes to the various HOS provisions, such as, efficiency gains due to
the short-haul exception; the ability of drivers to make informed
decisions due to the changes to the adverse driving conditions and
sleeper berth provisions; and the reduction in opportunity cost to
drivers from the changes to the 30-minute break provision. The Agency
requests comment on how drivers would use the changes in these
provisions to inform their decision-making process. This information
could assist the Agency in quantifying additional cost savings that are
anticipated to result from today's rule.
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\43\ Available at: https://www.regulations.gov/docket?D=FMCSA-2017-0197. https://www.regulations.gov/document?D=FMCSA-2018-0181-0057, and https://www.regulations.gov/docket?D=FMCSA-2018-0175,
respectively.
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The Agency did not include the cost for ELD manufacturers to update
ELD equipment. A compliant ELD would not need to be updated as a result
of this proposed rule. FMCSA is aware that some ELD manufacturers have
chosen to go beyond the ELD requirements and provide additional
features such as alerts when a driver may be close to an HOS violation.
Those additional features would need to be updated as a result of the
rule, or risk being inaccurate. Because the additional features are not
required by FMCSA, but were developed as a selling point for individual
ELD products, updating the additional features would not be a cost to
this rule and FMCSA is not estimating the cost of updating the
additional ELD features.
The Agency did not quantify impacts resulting from any potential
decreases in congestion that may result from the proposed rule.
Allowing drivers to take breaks at their convenience, such as during
times of heavy traffic congestion, could allow the driver to operate at
a consistent speed without the starting and stopping that occurs in
heavy traffic. The ATRI technical memorandum demonstrated that avoiding
congestion could result in moving freight the same number of miles in
fewer work hours. This could reduce fuel and vehicle costs for the
motor carriers, congestion for the public by removing large vehicles
from the road during peak travel times, and the incidence of crashes
related to congestion. While these impacts could result from any
individual trip, FMCSA cannot estimate the magnitude or likelihood of
these potential impacts for many reasons. Most notably, these impacts
hinge on the availability of CMV parking. FMCSA is aware that parking
is not always available, especially in urban areas or heavily travelled
truck routes.
Additional non-quantified cost savings include increased
flexibility resulting from the extension of the duty day and the air-
mile radius for those operating under the short-haul exception; the
increased options for drivers to respond to adverse driving conditions
during the course of their duty period; and increased flexibility
afforded to drivers, such as increased options with regard to on-duty
and off-duty time resulting from changes to the 30-minute break
requirement, the sleeper-berth provisions, and the new split duty
period provision. The Agency requests comment on how drivers would
utilize the changes in these provisions to inform their decision-making
process. This information could assist the Agency in quantifying
additional cost savings that are anticipated to result from today's
rule.
Summary of Benefits
The Agency does not anticipate that this proposed rule would result
in any new regulatory benefits. Additionally, the Agency does not
believe that the proposed changes would result in any reductions in
safety benefits or other regulatory benefits.
30-Minute Break
The proposed changes to the 30-minute break provision are estimated
to be safety-neutral because both the current rule and the proposed
rule would prevent CMV operators from driving for more than 8 hours
without at least a 30-minute change in duty status. The distinction is
that the proposal would focus on actual driving time rather than on-
duty time, some of which may not be spent behind the wheel. The Agency
discussed the value of off-duty breaks as compared to on-duty breaks in
previous rulemakings, but did not quantify the safety benefits
attributable to the off-duty break when the break provision was added
to the HOS rules in 2011 (76 FR 81134, Dec. 27, 2011). Further, FMCSA
has determined that the value of off-duty breaks relative to on-duty
breaks should be reconsidered.
As discussed above and in the RIA, The Agency has carefully
considered the views of numerous commenters requesting exemptions or
removal of the 30-minute break requirement. As a result of the
feedback, and after reviewing available research, FMCSA anticipates
that an on-duty break, which would maintain a break from driving, would
not adversely affect safety relative to the current requirements. Based
on comments received, the Agency has taken another look at the Blanco,
et al. (2011), study to determine the applicability of the study
findings to the 30-minute break requirement. Today's NPRM focuses on
achieving a break from driving as opposed to a break after a certain
amount of time on duty. For these reasons, the Agency believes that
these changes would not have an impact on the safety benefits of the
HOS rules and did not quantify changes in regulatory benefits for this
proposed rule.
Alternative 1, which would eliminate the 30-minute break
requirement, seems to be more flexible than the preferred alternative.
However, eliminating the requirement would allow drivers the
opportunity to operate a vehicle for 11 hours without stopping. In
general, FMCSA does not anticipate that drivers would alter their
schedules to such an extent, but would likely take breaks to eat, rest,
etc. However rare of an occurrence 11 continuous hours of driving may
be, FMCSA considers it to be detrimental to safety. As such,
alternative 1 may be more flexible and would result in an equivalent
level of motor carrier cost savings, but would lead to a reduction in
safety benefits relative to the preferred alternative. Therefore, FMCSA
is not proposing alternative 1, but requests comment on this
determination.
Split-Duty Period
Today's 14-hour continuous driving window has been perceived as
regulatory discouragement against taking long breaks. Drivers may feel
compelled to operate while fatigued to avoid losing available driving
time, or speed to make up time from traffic congestion. FMCSA
anticipates that the NPRM would increase flexibility by allowing
drivers to rest when they are tired or to avoid traffic congestion,
without losing available work time, and would not reduce safety
relative to the current HOS requirements. Additionally, drivers would
still be
[[Page 44215]]
constrained by the 11-hour driving limit in place today.
Sleeper Berth
As discussed in the RIA and elsewhere in this preamble, there is an
extensive body of research suggesting that split-sleep schedules may be
a good alternative to consolidated daytime sleep, as they may improve
safety and productivity as compared to consolidated daytime sleep.
This proposal would ensure that drivers using the sleeper berth to
obtain the minimum off-duty time have at least one rest period of a
sufficient length to have restorative benefits to counter fatigue.
Today's proposal intends to provide drivers with the flexibility to
make decisions regarding their rest that best fits their individual
needs, while continuing to prohibit potential overly-long periods of
wakefulness and duty hours that could lead to fatigue-related crashes.
The proposed sleeper-berth exception would provide drivers greater
operational flexibility, while affording the opportunity for the driver
to obtain the necessary amount of restorative sleep. As such, the
Agency anticipates that the increased flexibility proposed in today's
NPRM would not affect the safety outcomes achieved by the current
sleeper berth provision. FMCSA requests comments on the frequency of
use of the proposed split-rest periods provision and the impacts of the
provision on safety. Additionally, the Agency invites stakeholders to
identify any additional safety impacts resulting from the changes to
the split-rest periods provision in today's NPRM they believe have not
been adequately considered.
Alternative 1, which would maintain an 8/2 split option but exclude
the shorter rest period from the calculation of the 14-hour driving
window, is more restrictive than the preferred alternative by allowing
fewer options for a driver to split their 10 hours of off-duty time.
Based on the research discussed above, a 7/3 split option would allow
for an adequate rest period such that it would not impact safety
relative to an 8/2 split option. As such, alternative 1 would be more
restrictive, would reduce cost savings associated with the proposal,
and would not provide any additional safety benefits relative to the
preferred alternative. Therefore, FMCSA is not proposing alternative 1
but requests comment on this determination.
Alternative 2, which would allow a 7/3 split option but include the
shorter rest period from the calculation of the 14-hour driving window,
is more restrictive than the preferred alternative by continuing to
count the shorter rest period in the calculation of the 14-hour driving
window. Under this alternative, a driver would be required to stop
driving 14 hours after coming on-duty, regardless of how much of that
14-hour period was spent resting. Based on results in the Blanco study
(2011), FMCSA believes that excluding the shorter rest period from the
calculation of the 14-hour driving window would not reduce safety
relative to the preferred alternative. The Blanco study showed that the
SCE rate increased modestly with increasing work and driving hours.
Blanco also found that breaks can be used to counteract the negative
effects of time-on-task. The results from the break analyses indicated
that significant safety benefits can be afforded when drivers take
breaks from driving. This was a key finding in the Blanco study and
clearly shows that breaks can ameliorate the negative impacts
associated with fatigue and time-on-task. As such, alternative 2 would
be more restrictive, reduce cost savings associated with the proposal
and would not provide any additional safety benefits relative to the
preferred alternative. Therefore, FMCSA is not proposing alternative 2,
but requests comment on this determination.
Short-Haul Operations
The IIHS conducted a study in North Carolina in 2017 and found that
interstate truck drivers operating under the short-haul exception had a
crash risk 383 percent higher than those not using the exception. They
recommended that, due to this finding, the Agency should not propose an
extension of the short-haul exception from 12 to 14 hours. FMCSA
reviewed the study and noted that while the finding was statistically
significant, it was based on a very small sample size, which prevented
the author from estimating a matched-pair odds ratio restricted to
drivers operating under a short-haul exception, and was not nationally
representative. Further, the authors noted that other related factors
unobserved in the study may have led to this result. For example, it is
possible that older or more poorly maintained trucks are used in local
operations. Regardless, because FMCSA's number one priority is safety,
the Agency investigated the safety implications of the proposal using
available data.
Congress passed the FAST Act on December 4, 2015, which, among
other things, requires drivers of ready-mixed concrete delivery trucks
be exempted from the requirement to return to their normal work-
reporting location after 12 hours of coming on duty. Beginning on
December 5, 2015, operators of concrete mixer trucks met the
requirements for the short-haul exception if they returned to their
normal work reporting location within 14 hours after coming on duty.
MCMIS contains data on crashes based on vehicle type, allowing the
Agency to isolate crashes involving concrete mixer trucks both before
and after the congressionally mandated changes to the short-haul
exception that mirror today's proposal to extend the 12-hour limit for
all short-haul operators.
The Agency first focused on the time of day when crashes occurred.
Assuming the majority of concrete mixer trucks are operated on a
schedule with a workday that begins in the morning hours and ends in
the evening hours, those crashes that occur in the later part of the
day would occur towards the end of the 12- or 14-hour workday for the
concrete mixer driver. FMCSA found that the percentage of concrete
mixers in crashes at later hours of the day (5:00 p.m. to 11:59 p.m.--
when drivers are more likely to be close to their maximum hours for the
day) has been declining in recent years, falling from 7.6 percent in
2013 to 5.8 percent in 2017.
FMCSA also examined the total number of crashes that involved
concrete mixer trucks for the 2 years before and after the
congressionally mandated change went into effect. From December 4,
2013, through December 3, 2015, there were 2,723 concrete mixers
involved in crashes, or 0.907 percent of the total large trucks
involved in crashes (2,723 concrete mixers involved in crashes/300,324
large trucks, including concrete mixers, involved in crashes). From
December 4, 2015, through December 2, 2017, there were 2,955 concrete
mixers involved in crashes, or 0.919 percent of the total large trucks
involved in crashes (2,955 concrete mixers involved in crashes/321,471
large trucks, including concrete mixers, involved in crashes). A Chi-
square test suggests that this very minor increase in the concrete
mixer share of the total is not statistically significant at the p <
0.05 level. Both analyses suggest that the implementation of the FAST
Act on December 4, 2015, did not increase the share of concrete mixers
involved in crashes when extending the short-haul exception requirement
from 12 to 14 hours.
FMCSA does not anticipate that extending the air-mile radius would
increase market demand for services, and thus would not result in
increased VMT. While more drivers or more trips would now be eligible
for the short-haul exception, and thus excluded from the requirement to
take a 30-minute break
[[Page 44216]]
or prepare daily RODS, the total costs of freight transportation would
likely not change to such an extent that the quantity demanded of
trucking services would increase. Because total VMT is not expected to
increase, the Agency does not anticipate changes in exposure or crash
risk. FMCSA requests comments on the operational changes, or changes to
VMT, that might result from today's proposal to extend the air-mile
radius. Additionally, the Agency emphasizes the changes to the short-
haul exception proposed today would not allow any additional drive
time, or allow driving after the 14th hour from the beginning of the
duty day. Drivers also would still be subject to the ``weekly'' limits
of 60 and 70 hours, and the employer must maintain accurate time
records concerning the time the driver reports for work each day and
the time the driver is released from duty each day. FMCSA therefore
anticipates that this proposal would not affect the crash risk of
drivers operating under the short-haul exception.
Alternative 1, which would extend the time required for drivers to
return to their work reporting location from 12 to 14 hours but
continue to maintain a 100 air-mile radius requirement, would be more
restrictive than the preferred alternative by reducing the population
of drivers eligible for the short-haul exception. As discussed above,
FMCSA does not anticipate that changing the air-mile radius from 100 to
150 air-miles would impact safety. As such, alternative 1 would be more
restrictive, reduce any cost savings associated with the proposal, and
would not provide any additional safety benefits relative to the
preferred alternative. As a result, FMCSA is not proposing alternative
1, but requests comment on this determination.
Adverse Driving Conditions
The Agency defines ``adverse driving conditions'' in 49 CFR 395.2
as ``snow, sleet, fog, other adverse weather conditions, a highway
covered with snow or ice, or unusual road and traffic conditions, none
of which were apparent on the basis of information known to the person
dispatching the run at the time it was begun.'' The adverse driving
condition provision was intended to provide drivers flexibility to
avoid rushing to either stay ahead of adverse conditions, make up for
lost time due to poor conditions, or allow drivers time to locate a
safe place to stop and wait out the adverse conditions. The Agency
anticipates that today's proposed rule would enhance this goal by
allowing drivers to avail themselves of this flexibility when the
adverse conditions occur later in the driving window. While the Agency
is not aware of any research that is specific to the impact of adverse
conditions on crash risk, the flexibility provided in the proposal
would allow drivers to make decisions based on current conditions
without penalizing them by ``shortening'' their driving window.
Further, the Agency stresses that this proposal would not increase
maximum available driving time beyond that allowed by the current rule,
but may increase driving hours by allowing some drivers to use more of
their available driving time.
The Agency is unable to quantitatively assess the impacts on safety
from today's proposal due to a lack of data regarding the use of the
adverse driving provision. The Agency also lacks data on the
relationship between crash risk and adverse driving conditions, and
potential reductions in crash risk that result from the avoidance of
these conditions. FMCSA thus requests comment on the frequency of use
of the adverse driving conditions provision and the impacts of the
provision on safety. Additionally, the Agency invites stakeholders to
identify any additional safety impacts resulting from the changes to
the adverse driving conditions provision in today's proposed rule that
have not been discussed above.
Health Impacts
The RIA for the 2011 HOS final rule estimated health benefits in
the form of decreased mortality risk based on decreases in daily
driving time, and possible increases in sleep. The changes were largely
based on limiting the use of the 34-hour restart provision. That
provision, however, was removed by operation of law when the study
required by the 2015 DOT Appropriations Act failed to find
statistically significant benefits of the 2011 limitations on the 34-
hour restart.\44\ Today's proposed rule does not affect the reinstated
original 34-hour restart provision, and thus the health benefits
estimated in the 2011 RIA would not be affected by today's rule.
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\44\ Sec. 133 of the 2015 DOT Appropriations Act (Pub. L. 113-
235, Dec. 16, 2014, 128 Stat. 2130, 2711) suspended the 2011 restart
provisions, temporarily reinstated the pre-2011 restart rule, and
required a study of the effectiveness of the new rule. Sec. 133 of
the 2016 DOT Appropriations Act (Pub. L. 114-113, Dec. 18, 2015, 129
Stat. 2242, 2850) made it clear that the 2011 restart provisions
would have no effect unless the study required by the 2015 DOT
Appropriations Act showed that those provisions had statistically
significant benefits compared to the pre-2011 restart rule. Sec. 180
of the Further Continuing and Security Assistance Appropriations
Act, 2017 (Pub. L. 114-254, Dec. 10, 2016, 130 Stat. 1005, 1016)
replaced Sec. 133 of the 2016 DOT Appropriations Act in its entirety
to correct an error and ensure that the pre-2011 restart rule would
be reinstated by operation of law unless the study required by the
2015 DOT Appropriations Act showed that the 2011 restart rule had
statistically significant improvements related to safety and
operator fatigue compared to the pre-2011 restart rule. DOT
concluded that the study failed to find these statistically
significant improvements, and the Office of Inspector General
confirmed that conclusion in a report to Congress.
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As concerns this proposed rule, FMCSA anticipates that some drivers
would experience a decrease in stress, which could lead to increases in
health benefits. As discussed in the RIA, drivers have repeatedly
provided comments relating to stress resulting from the 14-hour limit.
Both the split-duty and sleeper berth proposal could alter drivers'
schedules relative to the current requirements, by allowing drivers
flexibility to rest, without penalty, when they are tired or in times
of heavy traffic. However, these proposals would continue to allow for
an adequate rest period. Today's proposal retains the current driving
time and work time, but could allow for changes in the number of hours
driven or worked on any given day. The flexibilities in this proposal
are intended to allow drivers to shift their drive and work time under
the HOS rules in an effort to mitigate the impacts of uncertain factors
(e.g., traffic, weather, and detention times). Total hours driven or
worked could increase or decrease on a given day, but FMCSA does not
anticipate that these time shifts would negatively impact drivers
health. Instead, today's proposal would empower drivers to make
informed decisions based on the current situation, and as a result the
proposed rule could lead to a decrease in stress and subsequent health
benefits. FMCSA requests comments on the health impacts of today's
proposal.
Section 12.f of DOT Order 2100.6 dated December 20, 2018 provides
additional requirements for retrospective reviews, specifically each
economically significant rule or high-impact rule, the responsible OA
or OST component shall publish a regulatory impact report in the
Federal Register every 5 years after the effective date of the rule
while the rule remains in effect.
In accordance with the DOT order, FMCSA would assess the impact of
the proposed changes to the HOS requirements within five years of the
effective date of a final rule.
B. E.O. 13771 (Reducing Regulation and Controlling Regulatory Costs)
E.O. 13771, Reducing Regulation and Controlling Regulatory Costs,
was
[[Page 44217]]
issued on January 30, 2017 (82 FR 9339, Feb. 3, 2017). E.O. 13771
requires that, for every one new regulation issued by an Agency, at
least two prior regulations be identified for elimination, and that the
cost of planned regulations be prudently managed and controlled through
a budgeting process. Final implementation guidance addressing the
requirements of E.O. 13771 was issued by the OMB on April 5, 2017.\45\
The OMB guidance defines what constitutes an E.O. 13771 regulatory
action and an E.O. 13771 deregulatory action, provides procedures for
how agencies should account for the costs and cost savings of such
actions, and outlines various other details regarding implementation of
E.O. 13771.
---------------------------------------------------------------------------
\45\ Executive Office of the President. Office of Management and
Budget. Memorandum M-17-21. Guidance Implementing Executive Order
13771. April 5, 2017.
---------------------------------------------------------------------------
This proposed rule is expected to have total costs less than zero,
and, if finalized, would therefore qualify as an E.O. 13771
deregulatory action. The present value of the cost savings of this
proposed rule, measured on an infinite time horizon at a 7 percent
discount rate, expressed in 2016 dollars, and discounted to 2020 (the
year the proposed rule would go into effect and cost savings would
first be realized), is $4,055 million. On an annualized basis, these
cost savings are $284 million.
For the purpose of E.O. 13771 accounting, the April 5, 2017, OMB
guidance requires that agencies also calculate the costs and cost
savings discounted to year 2016. In accordance with this requirement,
the present value of the cost savings of this rule, measured on an
infinite time horizon at a 7 percent discount rate, expressed in 2016
dollars, and discounted to 2016, is $3,094 million. On an annualized
basis, these cost savings are $217 million.
C. Regulatory Flexibility Act
The Regulatory Flexibility Act (RFA) of 1980, Public Law 96-354, 94
Stat. 1164 (5 U.S.C. 601-612), as amended by the Small Business
Regulatory Enforcement Fairness Act of 1996 (SBREFA) (Pub. L. 104-121,
110 Stat. 857, Mar. 29, 1996) and the Small Business Jobs Act of 2010
(Pub. L. 111-240, 124 Stat. 2504 Sept. 27, 2010), requires Federal
agencies to consider the effects of the regulatory action on small
business and other small entities and to minimize any significant
economic impact. The term ``small entities'' comprises small businesses
and not-for-profit organizations that are independently owned and
operated and are not dominant in their fields, and governmental
jurisdictions with populations of less than 50,000. Additionally, DOT
policy requires an analysis of the impact of all regulations on small
entities, and mandates that agencies strive to lessen any adverse
effects on these businesses. FMCSA has not determined whether this
proposed rule would have a significant economic impact on a substantial
number of small entities. Therefore, FMCSA is publishing this Initial
Regulatory Flexibility Analysis (IRFA) to aid the public in commenting
on the potential small business impacts of the proposals in this NPRM.
We invite all interested parties to submit data and information
regarding the potential economic impact that would result from adoption
of the proposals in this NPRM. We will consider all comments received
in the public comment process when making a determination or when
completing a Final Regulatory Flexibility Assessment.
An IRFA must contain the following:
(1) A description of the reasons why the action by the agency is
being considered;
(2) A succinct statement of the objective of, and legal basis for,
the proposed rule;
(3) A description of and, where feasible, an estimate of the number
of small entities to which the proposed rule will apply;
(4) A description of the projected reporting, recordkeeping, and
other compliance requirements of the proposed rule, including an
estimate of the classes of small entities which will be subject to the
requirement and the type of professional skills necessary for
preparation of the report or record;
(5) An identification, to the extent practicable, of all relevant
Federal rules that may duplicate, overlap, or conflict with the
proposed rule; and
(6) A description of any significant alternatives to the proposed
rule which accomplish the stated objectives of applicable statutes and
which minimize any significant economic impact of the proposed rule on
small entities.
Why the Action by the Agency Is Being Considered
FMCSA has longstanding processes, which provide that regulations
and other agency actions be periodically reviewed and, if appropriate,
revised to ensure that they continue to meet the needs for which they
were originally designed, and that they remain justified.\46\ Further,
on October 2, 2017, DOT published a Notification of Regulatory Review
and stated that it was reviewing its ``existing regulations and other
agency actions to evaluate their continued necessity, determine whether
they are crafted effectively to solve current problems, and evaluate
whether they potentially burden the development or use of domestically
produced energy resources'' (82 FR 45750). As part of these reviews,
DOT sought public comment on existing rules that are good candidates
for repeal, replacement, suspension, or modification. The HOS
regulations and ELDs were the most common substantive topics discussed
in response to the DOT Notification of Regulatory Review. The HOS
regulations were identified as an area for potential modifications in
2018, due to changes in tracking HOS brought about by the
implementation of the ELD rulemaking (80 FR 78292, Dec. 16, 2015).
Consistent with these processes and with the goal of improving
regulatory efficiency, the Agency proposes to revise the HOS
requirements applicable to CMV drivers.
---------------------------------------------------------------------------
\46\ See footnote 4, above.
---------------------------------------------------------------------------
The Objectives of and Legal Basis for the Proposed Rule
In response to public comments received on the ANPRM and to the
listening sessions held by FMCSA, the proposed rule would (1) change
the short-haul exception available to certain CMV drivers by
lengthening the drivers' maximum on-duty period from 12 to 14 hours and
extending from 100 air miles to 150 air miles within which the driver
may operate; (2) modify the adverse driving conditions exception by
extending by 2 hours the maximum window during which driving is
permitted; (3) provide flexibility for the 30-minute break rule by
tying the break requirement to 8 hours of driving time without an
interruption of at least 30 minutes and allowing the break to be
satisfied by a driver using on-duty, not-driving status, rather than
off duty; (4) modify the sleeper-berth exception to allow drivers to
split their required 10-hours off duty into two periods, one of at
least 7 consecutive hours in the sleeper berth and the other of not
less than 2 consecutive hours, either off duty or in the sleeper berth,
with neither period counting against the driver's 14-hour driving
window; and (5) allow one off-duty break of at least 30 minutes, but
not more than 3 hours, that would pause a truck driver's 14-hour
window, provided the driver takes 10 consecutive hours off-duty at the
end of the work shift. This NPRM is based on authority derived from the
Motor Carrier Act of 1935 and the Motor Carrier Safety Act of 1984. See
heading IV, Legal Basis for Rulemaking, above.
[[Page 44218]]
A Description of, and Where Feasible an Estimate of, the Number of
Small Entities To Which the Proposed Rule Will Apply
``Small entity'' is defined in 5 U.S.C. 601(3) as having the same
meaning as ``small business concern'' under Section 3 of the Small
Business Act (SBA). This includes any small business concern that is
independently owned and operated, and is not dominant in its field of
operation. Section 601(4), likewise, includes within the definition of
``small entities'' not-for-profit enterprises that are independently
owned and operated, and are not dominant in their fields of operation.
Additionally, Section 601(5) defines ``small entities'' as governments
of cities, counties, towns, townships, villages, school districts, or
special districts with populations less than 50,000. Small businesses
are defined by the SBA Table of Size standards, which adopts the NAICS
codes for industry sectors.
This proposed rule would affect drivers, motor carriers, and the
Federal government. Drivers are not considered small entities because
they do not meet the definition of a small entity in Section 601 of the
RFA. Specifically, drivers are considered neither a small business
under Section 601(3) of the RFA, nor are they considered a small
organization under Section 601(4) of the RFA.
The SBA defines the size standards used to classify entities as
small. SBA establishes separate standards for each industry, as defined
by the North American Industry Classification System (NAICS). It is
estimated that the motor carriers that would experience regulatory
relief under the proposed rule would be in industries within Subsector
484 (Truck Transportation). These industries include General Freight
Trucking (4841) and Specialized Freight Trucking (4842). Subsector 484
has an SBA size standard based on annual revenue of $27.5 million.
FMCSA examined data from the Statistics of U.S. Businesses (SUSB)
annual data tables by Enterprise Receipt size and the 2012 Economic
Census, the most recent Census for which data were available, to
determine the percentage of firms that have revenue at or below SBA's
thresholds. Although boundaries for the revenue categories used in the
Economic Census do not exactly coincide with the SBA thresholds, FMCSA
was able to make reasonable estimates using these data.
Motor carrier operations in the Truck Transportation industry
primarily earn their revenue via the movement of goods. According to
the 2012 Economic Census, 98,312 Truck Transportation firms operated
for the entire year. As shown in Table 4, according to the Economic
Census, at least 98 percent of trucking firms with employment had
annual revenue less than $25 million; the Agency concluded that the
percentage would be approximately the same using the SBA threshold of
$27.5 million as the boundary.
Table 4--Estimates of Numbers of Small Entities With Employment
----------------------------------------------------------------------------------------------------------------
Total number Number of Percent of all
NAICS code Description of firms small entities firms
----------------------------------------------------------------------------------------------------------------
484.............................. Truck Transportation......... 98,312 96,539 98
484110........................... General Freight Trucking, 25,754 25,270 98
Local.
484121........................... General Freight Trucking, 25,933 25,268 97
Long-Distance, Truckload.
484122........................... General Freight Trucking, 3,525 3,410 97
Long-Distance, Less Than
Truckload.
484210........................... Used Household and Office 6,945 6,860 99
Goods Moving.
484220........................... Specialized Freight (except 29,048 28,588 98
Used Goods) Trucking, Local.
484230........................... Specialized Freight (except 7,623 7,285 96
Used Goods) Trucking, Long-
Distance.
----------------------------------------------------------------------------------------------------------------
Source: U.S. Census Bureau. 2012 SUSB Annual Data Tables by Establishment Industry. Available at: https://www.census.gov/data/tables/2012/econ/susb/2012-susb-annual.html.
The SUSB data includes information from most U.S. business
establishments but does not include data on sole-proprietorship
establishments, commonly referred to in the truck transportation
industry as owner/operators. The U.S. Census Bureau also provides the
Nonemployer Statistics, which is an annual series that provides
subnational economic data for businesses that have no paid employees
and are subject to federal income tax. This series includes the number
of establishments by the total receipts (i.e., revenue) by
industry.\47\ An establishment is a single physical location at which
business is conducted. A firm, or business, may consist of multiple
establishments. It is not clear if a sole-proprietorship would report a
single or multiple establishments. The Nonemployer Statistics for 2016
reports a total or 587,038 establishments. This is slightly larger than
expected because MCMIS contains information for a total of 493,730
active interstate freight motor carriers. The Nonemployer Statistics
could include a large number of intrastate freight motor carriers that
are not regulated by FMCSA. Regardless, FMCSA assumes that all owner/
operator firms would be considered small under the SBA thresholds, and
requests comment on the number of interstate freight motor carriers
that are considered owner/operators.
---------------------------------------------------------------------------
\47\ U.S. Census Bureau. 2018 Nonemployer Statistics. Available
at: https://www.census.gov/programs-surveys/nonemployer-statistics.html.
---------------------------------------------------------------------------
FMCSA does not have exact estimates on the per-motor carrier impact
of this proposal. The RIA for the NPRM estimated cost savings
associated with the proposed changes to the 30-minute break
requirement. For illustrative purposes within this IRFA, FMCSA
developed a per-driver annual cost savings estimate. As shown below, a
firm with one driver could expect a cost savings of approximately $127
in 2020, the first year of the analysis.
[[Page 44219]]
Table 5--Weighted Annual Per-Driver Cost Savings of the Proposed Changes to the 30-Minute Break Requirement
----------------------------------------------------------------------------------------------------------------
Annual hours Annual per- Percent of
Driver group Hours saved Shifts per saved per driver cost total hours
per shift \a\ year \b\ driver \c\ savings \d\ \e\
----------------------------------------------------------------------------------------------------------------
Group 1......................... 0.25 120 30 $99.98 19
Group 2......................... 0.50 80 40 133.30 81
Group 3......................... 0.00 60 0 0 0
Weighted Annual Per-Driver Cost .............. .............. .............. .............. $127.04
Savings........................
----------------------------------------------------------------------------------------------------------------
\a\ See Table 5 in the RIA.
\b\ See Table 6 in the RIA.
\c\ Hours Saved per Shift x Annual Hours Saved per Driver.
\d\ Annual Hours Saved per Driver x $3.33 Motor Carrier Profit Margin.
\e\ See Table 7 in the RIA, Total Hours Saved per Year, by Group / Total Hours Saved per Year for All Groups.
A Description of the Proposed Reporting, Recordkeeping and Other
Compliance Requirements of the Proposed Rule, Including an Estimate of
the Classes of Small Entities Which Will Be Subject to the Requirement
and Type of Professional Skills Necessary for Preparation of the Report
or Record
This proposed rule would not change recordkeeping requirements as
compared to what is currently required by the HOS rules.
An Identification, to the Extent Practicable, of All Relevant Federal
Rules That May Duplicate, Overlap, or Conflict With the Proposed Rule
FMCSA is not aware of any relevant Federal rules that may
duplicate, overlap, or conflict with the proposed rule. The current HOS
rules would be replaced by those in the NPRM.
A Description of Any Significant Alternatives to the Proposed Rule
Which Accomplish the Stated Objectives of Applicable Statutes and Which
Minimize Any Significant Economic Impact of the Proposed Rule on Small
Entities
In developing this proposal, FMCSA considered alternatives that
would involve: (1) Requiring an off-duty 30-minute break following 8
hours of driving, (2) eliminating the 30-minute break requirement
entirely; (3) continuing to allow and 8/2 sleeper berth option, but
excluding the shorter rest period from the calculation of the 14-hour
driving window; (4) allowing both an 8/2 and a 7/3 sleeper berth
option, but continuing to include the shorter rest period in the
calculation of the 14-hour driving window; (5) allowing drivers to
maintain eligibility for the short-haul exception if they return to
their work reporting location within 14 hours, but maintaining the
current air-mile radius; and (6) a ``no-action'' alternative for both
the split-duty period and adverse driving condition proposals. These
alternatives generally would be more restrictive, reduce or eliminate
any cost savings associated with the proposal, and would not provide
any additional safety benefits relative to the preferred alternative.
FMCSA requests comments, with supporting data, on these and any other
alternatives that would meet the intent of the statutes and prove cost
beneficial for small entities.
Requests for Comment To Assist Regulatory Flexibility Analysis
FMCSA requests comments on all aspects of this IRFA and on the cost
and benefit impacts that small business may experience as a result of
this rule.
FMCSA is not a covered agency as defined in Section 609(d)(2) of
the Regulatory Flexibility Act, and has taken no steps to minimize the
additional cost of credit for small entities.
D. Assistance for Small Entities
In accordance with section 213(a) of the SBREFA, FMCSA wants to
assist small entities in understanding this proposed rule so that they
can better evaluate its effects on themselves and participate in the
rulemaking initiative. If the proposed rule would affect your small
business, organization, or governmental jurisdiction and you have
questions concerning its provisions or options for compliance, please
consult the FMCSA point of contact, Richard Clemente, listed in the FOR
FURTHER INFORMATION CONTACT section of this proposed rule.
Small businesses may send comments on the actions of Federal
employees who enforce or otherwise determine compliance with Federal
regulations to the Small Business Administration's Small Business and
Agriculture Regulatory Enforcement Ombudsman and the Regional Small
Business Regulatory Fairness Boards. The Ombudsman evaluates these
actions annually and rates each agency's responsiveness to small
business. If you wish to comment on actions by employees of FMCSA, call
1-888-REG-FAIR (1-888-734-3247). DOT has a policy regarding the rights
of small entities to regulatory enforcement fairness and an explicit
policy against retaliation for exercising these rights.
E. Unfunded Mandates Reform Act of 1995
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538)
requires Federal agencies to assess the effects of their discretionary
regulatory actions. In particular the Act addresses actions that may
result in the expenditure by a State, local, or tribal government, in
the aggregate, or by the private sector, of $161 million (which is the
value equivalent of $100,000,000 in 1995, adjusted for inflation to
2017 levels) or more in any 1 year. Because this proposed rule would
not result in such an expenditure, a written statement is not required.
However, the Agency does discuss the costs and benefits of this
proposed rule elsewhere in this preamble.
F. Paperwork Reduction Act
This proposed rule would not call for a new collection of
information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-
3520). This proposed rule would not modify the existing approved
collection of information (OMB Control Number 2126-0001, HOS of Drivers
Regulations, approved Jun. 13, 2016, through Jun. 30, 2019).
G. E.O. 13132 (Federalism)
A rule has implications for federalism under section 1(a) of E.O.
13132 if it has ``substantial direct effects on the States, on the
relationship between the national government and the States, or on the
distribution of power and responsibilities among the various levels of
government.'' FMCSA determined that this proposal would not have
substantial direct costs on or for States, nor would it limit the
[[Page 44220]]
policymaking discretion of States. Nothing in this document preempts
any State law or regulation. Therefore, this rule does not have
sufficient federalism implications to warrant the preparation of a
Federalism Impact Statement.
H. E.O. 12988 (Civil Justice Reform)
This proposed rule meets applicable standards in sections 3(a) and
3(b)(2) of E.O. 12988, Civil Justice Reform, to minimize litigation,
eliminate ambiguity, and reduce burden.
I. E.O. 13045 (Protection of Children)
E.O. 13045, Protection of Children from Environmental Health Risks
and Safety Risks (62 FR 19885, April 23, 1997), requires agencies
issuing ``economically significant'' rules, if the regulation also
concerns an environmental health or safety risk that an agency has
reason to believe may disproportionately affect children, to include an
evaluation of the regulation's environmental health and safety effects
on children. The Agency determined this proposed rule is economically
significant, however it does not anticipate that this regulatory action
could in any respect present an environmental or safety risk that could
disproportionately affect children.
J. E.O. 12630 (Taking of Private Property)
FMCSA reviewed this proposed rule in accordance with E.O. 12630,
Governmental Actions and Interference with Constitutionally Protected
Property Rights, and has determined it would not effect a taking of
private property or otherwise have taking implications.
K. Privacy
Section 522 of title I of division H of the Consolidated
Appropriations Act, 2005, enacted December 8, 2004 (Pub. L. 108-447,
118 Stat. 2809, 3268, note following 5 U.S.C. 552a), requires the
Agency to conduct a Privacy Impact Assessment of a regulation that will
affect the privacy of individuals. The assessment considers impacts of
the rule on the privacy of information in an identifiable form and
related matters. The FMCSA Privacy Officer has evaluated the risks and
effects the rulemaking might have on collecting, storing, and sharing
personally identifiable information and has evaluated protections and
alternative information handling processes in developing the rule to
mitigate potential privacy risks. FMCSA determined that this rule does
not require the collection of individual personally identifiable
information.
Additionally, the Agency submitted a Privacy Threshold Assessment
analyzing the rulemaking and the specific process for collection of
personal information to the DOT, Office of the Secretary's Privacy
Office. The DOT Privacy Office has determined that this rulemaking does
not create privacy risk.
The E-Government Act of 2002, Public Law 107-347, sec. 208, 116
Stat. 2899, 2921 (Dec. 17, 2002), requires Federal agencies to conduct
a Privacy Impact Assessment for new or substantially changed technology
that collects, maintains, or disseminates information in an
identifiable form. No new or substantially changed technology would
collect, maintain, or disseminate information because of this proposed
rule.
L. E.O. 12372 (Intergovernmental Review)
The regulations implementing E.O. 12372 regarding intergovernmental
consultation on Federal programs and activities do not apply to this
rulemaking.
M. E.O. 13211 (Energy Supply, Distribution, or Use)
FMCSA has analyzed this proposed rule under E.O. 13211, Actions
Concerning Regulations That Significantly Affect Energy Supply,
Distribution, or Use. The Agency has determined that it is not a
``significant energy action'' under that order because it is not a
``significant regulatory action'' likely to have a significant adverse
effect on the supply, distribution, or use of energy. Therefore, it
does not require a Statement of Energy Effects under E.O. 13211.
N. E.O. 13783 (Promoting Energy Independence and Economic Growth)
E.O. 13783 directs executive departments and agencies to review
existing regulations that potentially burden the development or use of
domestically produced energy resources, and to appropriately suspend,
revise, or rescind those that unduly burden the development of domestic
energy resources. In accordance with E.O. 13783, DOT prepared and
submitted a report to the Director of OMB that provides specific
recommendations that, to the extent permitted by law, could alleviate
or eliminate aspects of agency action that burden domestic energy
production. This proposed rule has not been identified by DOT under
E.O. 13783 as potentially alleviating unnecessary burdens on domestic
energy production.
O. E.O. 13175 (Indian Tribal Governments)
This proposed rule does not have tribal implications under E.O.
13175, Consultation and Coordination with Indian Tribal Governments,
because it does not have a substantial direct effect on one or more
Indian tribes, on the relationship between the Federal government and
Indian tribes, or on the distribution of power and responsibilities
between the Federal government and Indian tribes.
P. National Technology Transfer and Advancement Act (Technical
Standards)
The National Technology Transfer and Advancement Act (note
following 15 U.S.C. 272) directs agencies to use voluntary consensus
standards in their regulatory activities unless the agency provides
Congress, through OMB, with an explanation of why using these standards
would be inconsistent with applicable law or otherwise impractical.
Voluntary consensus standards (e.g., specifications of materials,
performance, design, or operation; test methods; sampling procedures;
and related management systems practices) are standards that are
developed or adopted by voluntary consensus standards bodies. This
proposed rule does not use technical standards. Therefore, FMCSA did
not consider the use of voluntary consensus standards.
Q. Environment (CAA, NEPA)
FMCSA completed an environmental assessment (EA) pursuant to the
National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321 et
seq.), 40 CFR parts 1500-1508, Council on Environmental Quality
Regulations for Implementing NEPA, as amended, FMCSA Order 5610.1,
National Environmental Policy Act Implementing Procedures and Policy
for Considering Environmental Impacts, March 1, 2004, and DOT Order
5610.1C, Procedures for Considering Environmental Impacts, as amended
on July 13, 1982 and July 30, 1985. The EA is in the docket pertaining
to this rulemaking. As discussed in the EA, FMCSA also analyzed this
proposed rule under the Clean Air Act, as amended, section 176(c), (42
U.S.C. 7401 et seq.) and implementing regulations promulgated by the
Environmental Protection Agency. FMCSA concludes that the issuance of
the proposed rule would not significantly affect the quality of the
human environment. Therefore, an environmental impact statement process
is unnecessary. FMCSA requests comments on this analysis.
[[Page 44221]]
List of Subjects in 49 CFR Part 395
Highway safety, Motor carriers, Reporting and recordkeeping
requirements.
In consideration of the foregoing, FMCSA proposes to amend 49 CFR
part 395.
PART 395--HOURS OF SERVICE OF DRIVERS
0
1. The authority citation for part 395 continues to read as follows:
Authority: 49 U.S.C. 504, 31133, 31136, 31137, 31502; sec. 113,
Pub. L. 103-311, 108 Stat. 1673, 1676; sec. 229, Pub. L. 106-159 (as
added and transferred by sec. 4115 and amended by secs. 4130-4132,
Pub. L. 109-59, 119 Stat. 1144, 1726, 1743, 1744); sec. 4133, Pub.
L. 109-59, 119 Stat. 1144, 1744; sec. 108, Pub. L. 110-432, 122
Stat. 4860-4866; sec. 32934, Pub. L. 112-141, 126 Stat. 405, 830;
sec. 5206(b), Pub. L. 114-94, 129 Stat. 1312, 1537; and 49 CFR 1.87.
0
2. Amend Sec. 395.1 by revising paragraphs (b)(1), (e)(1), (g)(1) and
(h) to read as follows:
Sec. 395.1 Scope of rules in this part.
* * * * *
(b) * * * (1) Adverse driving conditions. Except as provided in
paragraph (h)(3) of this section, a driver who encounters adverse
driving conditions, as defined in Sec. 395.2, and cannot, because of
those conditions, safely complete the run within the maximum driving
time or duty time during which driving is permitted under Sec. 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 allowable hours to complete that run or to reach a place
offering safety for the occupants of the commercial motor vehicle and
security for the commercial motor vehicle and its cargo.
* * * * *
(e) * * * (1) 150 air-mile radius. A driver is exempt from the
requirements of Sec. Sec. 395.8 and 395.11 if:
(i) The driver operates within a 150 air-mile radius (172.6 miles)
of the normal work reporting location;
(ii) The driver, except a driver-salesperson, returns to the work
reporting location and is released from work within 14 consecutive
hours;
(iii)(A) A property-carrying commercial motor vehicle driver has at
least 10 consecutive hours off duty separating each 14 hours on duty;
(B) A passenger-carrying commercial motor vehicle driver has at
least 8 consecutive hours off duty separating each 14 hours on duty;
and
(iv) The motor carrier that employs the driver maintains and
retains for a period of 6 months accurate and true time records
showing:
(A) The time the driver reports for duty each day;
(B) The total number of hours the driver is on duty each day;
(C) The time the driver is released from duty each day; and
(D) The total time for the preceding 7 days in accordance with
Sec. 395.8(j)(2) for drivers used for the first time or
intermittently.
* * * * *
(g) * * * (1) Property-carrying commercial motor vehicle--(i)
General. A driver who operates a property-carrying commercial motor
vehicle equipped with a sleeper berth, as defined in Sec. 395.2, and
uses the sleeper berth to obtain the required off duty time must
accumulate:
(A) At least 10 consecutive hours off duty;
(B) At least 10 consecutive hours of sleeper-berth time;
(C) A combination of consecutive sleeper-berth and off-duty time
amounting to at least 10 hours;
(D) A combination of sleeper-berth time of at least 7 consecutive
hours and up to 3 hours riding in the passenger seat of the vehicle
while the vehicle is moving on the highway, either immediately before
or after the sleeper berth time, amounting to at least 10 consecutive
hours; or
(E) The equivalent of at least 10 consecutive hours off duty
calculated under paragraphs (g)(1)(ii) and (iii) of this section.
(ii) Sleeper berth. A driver may accumulate the equivalent of at
least 10 consecutive hours off duty by taking not more than two periods
of either sleeper-berth time or a combination of off-duty time and
sleeper-berth time if:
(A) Neither rest period is shorter than 2 consecutive hours;
(B) One rest period is at least 7, but less than 10, consecutive
hours in the sleeper berth;
(C) The total of the two periods is at least 10 hours; and
(D) Driving time in the period immediately before and after each
rest period, when added together:
(1) Does not exceed 11 hours under Sec. 395.3(a)(3); and
(2) Does not violate the 14-hour duty-period limit under Sec.
395.3(a)(2).
(iii) Calculation. The 14-hour driving window for purposes of Sec.
395.3(a)(2) does not include qualifying rest periods under paragraph
(g)(1)(ii) of this section.
* * * * *
(h) State of Alaska--(1) Property-carrying commercial motor
vehicle. (i) In general. The provisions of Sec. 395.3(a) and (b) do
not apply to any driver who is driving a commercial motor vehicle in
the State of Alaska. A driver who is driving a property-carrying
commercial motor vehicle in the State of Alaska must not drive or be
required or permitted to drive:
(A) More than 15 hours following 10 consecutive hours off duty;
(B) After being on duty for 20 hours or more following 10
consecutive hours off duty;
(C) After having been on duty for 70 hours in any period of 7
consecutive days, if the motor carrier for which the driver drives does
not operate every day in the week; or
(D) After having been on duty for 80 hours in any period of 8
consecutive days, if the motor carrier for which the driver drives
operates every day in the week.
(ii) Off-duty periods. Before driving, a driver who operates a
property-carrying commercial motor vehicle equipped with a sleeper
berth, as defined in Sec. 395.2, and uses the sleeper berth to obtain
the required off-duty time in the State of Alaska must accumulate:
(A) At least 10 consecutive hours off duty;
(B) At least 10 consecutive hours of sleeper-berth time;
(C) A combination of consecutive sleeper-berth and off-duty time
amounting to at least 10 hours;
(D) A combination of consecutive sleeper-berth time and up to 3
hours riding in the passenger seat of the vehicle while the vehicle is
moving on a highway, either immediately before or after a period of at
least 7, but less than 10, consecutive hours in the sleeper berth; or
(E) The equivalent of at least 10 consecutive hours off duty
calculated under paragraph (h)(1)(iii) of this section.
(iii) Sleeper berth. A driver who uses a sleeper berth to comply
with the Hours of Service regulations may accumulate the equivalent of
at least 10 consecutive hours off duty by taking not more than two
periods of either sleeper-berth time or a combination of off-duty time
and sleeper-berth time if:
(A) Neither rest period is shorter than 2 consecutive hours;
(B) One rest period is at least 7 consecutive hours in the sleeper
berth;
(C) The total of the two periods is at least 10 hours; and
(D) Driving time in the period immediately before and after each
rest period, when added together:
(1) Does not exceed 15 hours; and
(2) Does not violate the 20-hour duty period under paragraph
(h)(1)(i)(B) of this section.
[[Page 44222]]
(iv) Calculation. The 20-hour duty period under paragraph
(h)(1)(i)(B) does not include off-duty or sleeper-berth time.
(2) Passenger-carrying commercial motor vehicle. The provisions of
Sec. 395.5 do not apply to any driver who is driving a passenger-
carrying commercial motor vehicle in the State of Alaska. A driver who
is driving a passenger-carrying commercial motor vehicle in the State
of Alaska must not drive or be required or permitted to drive--
(i) More than 15 hours following 8 consecutive hours off duty;
(ii) After being on duty for 20 hours or more following 8
consecutive hours off duty;
(iii) After having been on duty for 70 hours in any period of 7
consecutive days, if the motor carrier for which the driver drives does
not operate every day in the week; or
(iv) After having been on duty for 80 hours in any period of 8
consecutive days, if the motor carrier for which the driver drives
operates every day in the week.
(3) Adverse driving conditions. (i) A driver who is driving a
commercial motor vehicle in the State of Alaska and who encounters
adverse driving conditions (as defined in Sec. 395.2) may drive and be
permitted or required to drive a commercial motor vehicle for the
period of time needed to complete the run.
(ii) After a property-carrying commercial motor vehicle driver
completes the run, that driver must be off duty for at least 10
consecutive hours before he/she drives again; and
(iii) After a passenger-carrying commercial motor vehicle driver
completes the run, that driver must be off duty for at least 8
consecutive hours before he/she drives again.
* * * * *
0
3. Amend Sec. 395.3 by revising paragraphs (a)(2) and (3) to read as
follows:
Sec. 395.3 Maximum driving time for property-carrying vehicles.
(a) * * *
(2) 14-hour period. Except as provided in paragraph (a)(3)(iii) of
this section, a driver may not drive after a period of 14 consecutive
hours after coming on duty following 10 consecutive hours off duty.
(3) Driving time and interruptions of driving periods. (i) Driving
time. A driver may drive a total of 11 hours during the period
specified in paragraph (a)(2) of this section.
(ii) Interruption of driving time. Except for drivers who qualify
for either of the short-haul exceptions in Sec. 395.1(e)(1) or (2),
driving is not permitted if more than 8 hours of driving time have
passed without at least a 30-minute consecutive interruption in driving
status, either off duty or on duty.
(iii) Split duty period. (A) A driver may take one off-duty break
of at least 30 minutes, but not more than 3 hours, during the driver's
14-hour period specified in paragraph (a)(2) of this section and extend
the 14-hour period for the length of the driver's off-duty break.
(B) An off-duty break under paragraph (a)(3)(iii)(A) of this
section does not affect the requirement that a driver take 10
consecutive hours off duty under paragraph (a)(1) of this section.
* * * * *
Issued under authority delegated in 49 CFR 1.87 on: August 13,
2019.
Raymond P. Martinez,
Administrator.
[FR Doc. 2019-17810 Filed 8-21-19; 8:45 am]
BILLING CODE 4910-EX-P