(1) Have an annual effect on the economy of $100 million or more or
adversely affect in a material way the economy, a sector of the
economy, productivity, competition, jobs, the environment, public
health or safety, or

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

B. Regulatory Flexibility Act

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

C. Paperwork Reduction Act

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

D. National Environmental Policy Act

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

E. Executive Order 13132 (Federalism)

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

F. Privacy Impact Assessment

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

G. Executive Order 12630 (Taking of Private Property)

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

H. Executive Order 12988 (Civil Justice Reform)

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

I. Executive Order 13045 (Protection of Children)

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

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

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

K. Executive Order 12898 (Environmental Justice)

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

L. Unfunded Mandate Reform Act

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

List of Subjects

49 CFR Part 385

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

49 CFR Part 386

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

49 CFR Part 390

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

49 CFR Part 395

    Highway safety, Motor carriers, Reporting and recordkeeping
requirements.

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

PART 385--SAFETY FITNESS PROCEDURES

    1. The authority citation continues to read as follows:

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

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

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

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

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

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

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

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

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

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

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

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

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

PART 390--FEDERAL MOTOR CARRIER SAFETY REGULATIONS; GENERAL

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

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

Sec.  390.23  Relief from regulations.

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

PART 395--HOURS OF SERVICE OF DRIVERS

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

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

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

Sec.  395.1  Scope of rules in this part.

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

Sec.  395.2  Definitions.

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

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

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

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

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