There was no description of crash characteristics (other
than drivers' associated work schedules) provided;
     There was no distillation of the crash dataset to exclude
non-preventable crashes;
     The researchers did not perform validation tests of study
conclusions via disaggregation of the crash dataset by prominent
fatigue-related factors; i.e., single-vehicle vs. multi-vehicle
crashes, or other crash characteristics;
     Inadequate attention was paid to time-of-day as a
potential confound;
     The study employed an inter-subject design rather than
intra-subject design;
     There were a relatively small number of 11th hour crashes
and exposure hours;
     The study sample may be unrepresentative due to apparent
inclusion of truck tractors not equipped with sleeper berths.
    FMCSA Response. Knipling and the National Industrial Transportation
League (NITL) stated that Jovanis provided no description of crash
characteristics (other than their patterns of work schedules) and no
distillation of the crash dataset to exclude non-preventable crashes.
These comments are correct; the study team was tasked by the Agency to
investigate the crash risk by hour of driving, not to investigate
either fatigue-only crashes or crashes deemed preventable. The team was
interested in all crashes and their association with driving hours of

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

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

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

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

E. Driving Time Limits

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

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

F. 30-Minute Break Provision

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

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

G. Restart

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

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

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

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

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

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

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

H. Duty Period/Driving Window

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

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

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

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

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

J. On-Duty Definition

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

drivers to clock time spent resting in a parked CMV would be helpful
for the industry provided that the definition of ``resting'' includes
reading, checking emails, talking to friends or family, or other
similar activities. If so, TCA commented, the ability to count hours
wasted at shipping facilities as off-duty will benefit the truckload
industry tremendously. It further stated that, although the adjusted
definition would not reduce detention times, it could help prevent them
from being such a detriment to carriers. The Petroleum Marketers
Association of America supported allowing time spent by a driver in a
parked CMV to count as off-duty time, and thought that up to three
hours would be appropriate. Another commenter favored a three-hour
allowance for drivers parked in line waiting to load product.
    FMCSA Response. FMCSA is adopting the changes as proposed. FMCSA
emphasizes that the changes to the definition do not alter the existing
parts of the definition that define, as on duty, ``(5) All time loading
or unloading a commercial motor vehicle, supervising, or assisting in
the loading or unloading, attending a commercial motor vehicle being
loaded or unloaded, remaining in readiness to operate the commercial
motor vehicle, or in giving or receiving receipts for shipments loaded
or unloaded.'' Unless a driver is released from all responsibility for
the vehicle while waiting to be loaded or unloaded, time spent waiting
is still considered on duty time.
    Comments Opposing the Changes to the On-duty Definition. Advocates
et al., CVSA, and some other commenters opposed the proposed change,
primarily because the rule did not specify a limit (such as two or
three hours) for the amount of time a driver could rest in a parked
CMV. Commenters expressed concern that drivers could ``rest'' in the
passenger seat for 10 hours to re-qualify without the benefits of truly
restorative rest. In addition, they stated that the rule change is
complicated, would make enforcement more difficult, and could lead to
logbook falsification. One commenter warned that the exclusion from on-
duty time might be used by some drivers for time spent waiting for
loading or unloading, which may not provide a real opportunity for
rest. CVSA added that the provision cannot be justified without further
studies and data collection. A carrier claimed that the change in the
definition would expand FMCSA' s authority beyond professional drivers
and include driver-qualified dock laborers as well, which would
encroach upon Department of Labor authority and result in confusion
over compliance. Advocates et al. suggested the need for a
clarification that drivers cannot use vehicles other than the CMV they
are operating for these purposes.
    FMCSA Response. FMCSA disagrees that the rule should include a time
limit in a parked CMV. Under the previous definition, a driver could be
forced to spend time up to the 10-hour break out of the cab even if
there were no safe place to do so or no shelter or facilities. It is
surely better that the driver can rest in the cab in these
circumstances. With the 14-hour limit, it is unlikely that either the
carrier or driver will want the driver to spend extended periods off
duty in a parked truck during the duty day because all of the time
counts against the 14-hour period. Drivers are unlikely to tolerate 10
hours at a stretch off-duty without a sleeper berth or provision of a
place to sleep; any carrier compelling drivers to sleep in the cab for
10 hours may have trouble retaining its drivers.
    The rule change is not complicated; it simply defines when a driver
may log certain time as off duty rather than on duty, not driving. The
change seems unlikely to lead to any more logbook falsification than
already exists. The change in the definition does not alter FMCSA's
authority. If a dock worker also drives a CMV in interstate commerce,
he is subject to FMCSA rules when driving the vehicle and his other
work is included in his on-duty not driving time and counted against
his weekly limits.
    Other Comments on the On-Duty Definition. Two carriers asked why
the two hours in the passenger seat must be immediately before or after
the eight-hour period. One commenter suggested that the provision could
increase CMV idling time if drivers who formerly rested outside their
vehicles will now take ``off-duty'' time in a parked, but idling, CMV.
Another carrier pointed out that redefining an activity as off-duty
should not change the rule's health benefits.
    Although CVSA did not support the change in the definition of on-
duty time, it believed EOBRs will help compliance and enforcement
efforts if this provision were to be adopted as proposed. In addition,
it urged FMCSA to require specified supporting documents to be
maintained on a CMV, with access available to roadside enforcement
personnel, which would provide a means whereby duty status entries
could be verified or refuted.
    FMCSA Response. ATA requested the proposed re-definition of on-duty
time in September 2005 to allow a team driver to log off duty up to 2
hours riding in the passenger seat immediately before or after the 8-
hour sleeper berth period. Many drivers told ATA and repeated in the
listening sessions and in docket comments that they take 10 consecutive
hours off duty in the sleeper berth to simplify their recordkeeping.
This rule allows drivers to take 8 consecutive hours in the sleeper
berth as required by the current rule, and to take an additional 2
hours in the passenger seat when the vehicle is moving, without
artificially confining them to the sleeper berth for the entire 10-hour
period.
    FMCSA also proposed excluding from the definition of ``on duty,''
time spent resting in or on a parked CMV. Drivers in the past have
noted that the current definition makes it difficult for drivers of
CMVs without sleeper berths (known as day cabs) to rest because they
were considered to be on duty if they were in a parked truck. In many
cases, the safest, most comfortable, and often the only place for such
a driver to rest during a duty tour will be in the parked truck. This
change to the on-duty definition to allow drivers resting in or on a
parked vehicle may lead to more idling, but if the alternative is that
a driver has to stand outside, without shelter, in bad weather or in an
unsafe location, more idling is the lesser of the two evils. In any
case, the proliferation of State and local anti-idling laws makes it
questionable whether this amendment will increase idling time. The
changes to the definition were not considered in evaluating the health
benefits of the rule; at this time, there is no obvious way to evaluate
the health effects of such a small change. The issue of supporting
documents is beyond the scope of this rulemaking.

K. Penalties

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

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

L. Compliance Dates

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

M. Other Comments

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

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

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

N. Beyond the Scope

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

V. Section-by-Section Analysis

    In part 385, Appendix B (explanation of safety rating process) is
revised to update references to part 395. Revised references are added
for paragraphs in Sec.  395.3. References to Sec.  395.3(c)(1) and (2)
are deleted because a violation of the minimum restart period will
constitute, and be cited as, a violation of the 60- or 70-hour rule.
Providing separate violations for elements of the rule will allow FMCSA
to determine what parts of the rule have been violated. Under the
current method of citing violations, a driver who drives for 17 hours
straight cannot be distinguished from the driver who drives 11 hours,
takes a 9.5 hour break, then drives another 6 hours. Both are cited for
violating the 11-hour driving rule.
    In part 386, Appendix B, (penalty schedule; violations and maximum
civil penalties) paragraph (a) is revised to add a new paragraph (6) to
state that any violation of the driving-time limit that is 3 or more
hours above the driving limit could be considered an egregious
violation that could trigger imposition of the maximum penalty.
    Section 390.23(c) (relief from regulations) is revised to reference
Sec.  395.3 on the restart rather than to repeat the language on the
restart.
    In Sec.  395.1, paragraph (b) (adverse driving conditions) is
revised to remove paragraphs (1)(i)-(iv) and to clarify that drivers
are allowed to drive no more than 2 hours above the driving limits set
in Sec. Sec.  395.3 and 395.5. In Sec.  395.1, paragraph (d)(2)
(oilfield operations) is revised to clarify the language on waiting
time and to state that waiting time is not included in the calculation
of the 14 consecutive-hour period.
    In Sec.  395.1, paragraph (e) (short-haul operations), paragraph
(e)(1)(iv)(A) is revised to reference Sec.  395.3. Paragraph (e)(2) is
revised to clarify that it exempts drivers from Sec.  395.3(a)(2) (duty
time). This approach allows paragraph (e)(2) to focus on only those
rules that are different for drivers using the exemption rather than
repeating all of the provisions of Sec.  395.3.
    Section 395.1(g) (sleeper berths) is revised to change the driving
time to a reference to Sec.  395.3 in Sec.  395.1 (g)(1)(i)(B). It is
also revised to add the provision (to paragraph (g)(1)(ii)(C)) that a
team driver may log as off duty up to 2 hours in the passenger seat of
a moving vehicle immediately before or after an 8-hour period in the
sleeper berth.
    The previous language of Sec.  395.1(q) is removed and new text is
added as paragraph (q). Paragraph (q), a statutory exemption for
certain transporters of grapes, expired on September 30, 2009. See Sec.
4146 of the Safe, Accountable, Flexible, Efficient Transportation
Equity Act: A Legacy for Users, Pub. L. 109-59, 119 Stat. 1144, 1749,
August 10, 2005. New paragraph (q) sets forth rules specifically
applicable to drivers of CMVs transporting Division 1.1, 1.2 or 1.3
explosives. These drivers will be exempt from the requirement that the
half-hour break must be off duty. They will be allowed to log a half
hour or more of time spent attending the CMV, but performing no other
work, as their break. They will have to annotate their record of duty
status to indicate when the break was taken.
    In Sec.  395.2, the definition of ``on-duty time'' is revised to
allow a team driver to log as off duty up to 2 hours spent in the
passenger seat either immediately before or after the 8-hour period in
the sleeper berth. In addition, FMCSA is

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

VI. Required Analyses

A. Executive Order 12866 and Executive Order 13563

    Under Executive Order (E.O.) 12866 (58 FR 51735, October 4, 1993)
as supplemented by E.O. 13563 (76 FR 3821, January 18, 2011), FMCSA
must determine whether a regulatory action is ``significant'' and,
therefore, subject to Office of Management and Budget (OMB) review and
the requirements of the E.O. The E.O. defines ``significant regulatory
action'' as one that is likely to result in a rule that may:
    (1) Have an annual effect on the economy of $100 million or more or
adversely affect in a material way the economy, a sector of the
economy, productivity, competition, jobs, the environment, public
health or safety, or State, local, or tribal governments or
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.
    FMCSA developed a Regulatory Impact Analysis (RIA) for the proposed
rule (available in the docket) and accepted comments on it. This
section first summarizes the comments and responds to them, then
presents the revised results of the RIA for the final rule.
Edgeworth Analysis
    Comments and Responses to the Edgeworth Analysis. Most commenters
on the RIA were trade associations and large carriers. Nineteen
commenters cited or submitted the study conducted for ATA by Edgeworth
Economics. Besides that critique, the major issues raised were the
following:
     A perceived failure to analyze supply chain impacts.
     A failure to account for impacts on LTL networks.
     The estimates of training costs for drivers and
inspectors.
    The Edgeworth study made the following points, cited by commenters:
     FMCSA's field study data overstate the use of long hours.
Industry data from large carriers put the use of the 11th hour at 10.7
to 10.8 percent, not 21 percent.
     The RIA assumes that drivers in the field study who were
out of compliance would comply with the new rule.
     The RIA overstates the number of drivers who maximize
hours. The RIA assumes that a driver who uses part of the 11th or 14th
hour uses all it. This overstates costs and benefits.
     The change in methodology (no longer using the logistics
model) reduced the estimate of productivity losses.
     The RIA assumes that each hour of driving lost can be
seamlessly shifted to another day or driver, rather than modeling the
impact of shifting hours as in previous RIAs.
     The RIA assumes that drivers in the moderate and high
categories of work intensity never use the restart. The field study
indicated that 84 percent of drivers used the restart, 85 percent when
they had worked less than 65 hours in the previous week. The RIA
understates the impact of the restart change.
     The RIA overstates fatigue by using data from FMCSA's 2006
Large Truck Crash Causation Study (LTCCS), which were collected prior
to the 2003 rule; the data should have been adjusted for fatigue-
reduction produced by the 2003 rule. The 13 percent fatigue figure was
for ``associated factor'' not for the critical event. FMCSA also did
not adjust for over-sampling of single-vehicle crashes. The RIA should
have used 7 percent as the central estimate of crashes associated with
fatigue.
     The RIA assumes that the risk of a crash is the same
during a non-driving hour as during a driving hour and rounds up any
reductions in work time to the whole hour. These two errors inflate
benefits by $200 million.
     The RIA uses old crash data, rather than new data, showing
34 percent fewer crashes. Using the older data thus overstates the
number of crashes, and therefore overstates benefits.
     The RIA overstates net benefits by $700 million; the rule
would have a net cost of $320 million, excluding health benefits. If
the health benefits are included, the rule would still have a net cost
of $20 million.
    FMCSA Response. Edgeworth, in criticizing FMCSA's use of the Field
Survey data, stated that ``It is reasonable to consider that carriers
targeted for review may use their drivers more intensely and may be
more frequently up against current driving limits, if not over those
limits.''
    If a broad source of data that included information on weekly work,
daily work, and daily driving for the same carriers and drivers was
available, the Agency would have used it. The allegedly superior
sources pointed out by Edgeworth, however, are fragmentary and partial.
The field study, while not without its problems, covered a substantial
number of carriers of different sizes and types. It could be that this
analysis has overstated the frequency of the use of the 11th hour; if
so, that overstatement would affect both costs and benefits in roughly
equal measure, and should not change their relative relationship.
Hence, it would only mean that FMCSA is being conservative, i.e., that
the Agency is less likely to have understated the impacts on the
industry of the options that would have limited driving time.
    Edgeworth also stated that FMCSA includes ``4.0 percent of tours
that exceeded the current legal limit of 11 hours. FMCSA assumes that
all of these trips would become compliant under the 10-hour restriction
in Option 2. FMCSA offers no explanation for its assumption that
drivers currently out of compliance with HOS rules would become
compliant under the new rule.''
    As a preliminary matter, OMB requires that agencies estimate costs
and benefits at full compliance. FMCSA did, in fact, explicitly discuss
(in Section 1.3

of the RIA) why we assumed that the rule's limits would be observed by
drivers who might currently be out of compliance: again, to avoid the
appearance of understating the impacts of its rule by assuming that
drivers would not comply with it. Certainly, drivers who currently
exceed 11 hours would be unlikely to choose to drive less than 10 hours
under a rule that limited driving to 10 hours, so their existence
suggests a preference for long driving days; it would be unreasonable
to assume they did not exist. Even if they are not complying with the
existing driving limit, they could be influenced by it. A lower limit
might cause them to reduce their driving hours to an extent so as not
to be too far from the legal limit. To the extent that FMCSA overstated
the effects of some options by treating current violators of the 11-
hour limit as though they will comply with a tighter limit, the Agency
is overstating both costs and benefits of its options.
    Edgeworth also asserted that FMCSA has overstated the impacts of
its options through its use of the Field Survey data, stating ``In its
calculations of both costs and benefits, FMCSA assumes that one full
hour of driving time would be affected under Option 2 for the share of
drivers who are recorded as having used the 11th hour in the field
survey. Similarly, FMCSA assumes that one full hour of work time would
be affected for the share of drivers that are recorded as having used
the 14th hour. Thus, FMCSA has overstated the number of affected hours
and, as a result, overstated both the costs and benefits of the
proposed rule.''
    First, FMCSA explicitly does not assume that one full hour of work
time would always be affected for the share of drivers who are recorded
as having used the 14th hour. In the RIA for the NPRM, FMCSA stated
that only part of the 14th hour is affected by a 13-hour limit on on-
duty time: none of that hour for the moderate drivers, half of it for
the high intensity drivers, three quarters of it for the very high
intensity drivers, and all of it only for the extreme drivers. The
analysis then assumes that most of these drivers will be able to shift
some of the lost work time to another day, leading to an even lower
impact.
    Second, though not exactly the same procedure is followed for the
11th hour (because breaks will not necessarily affect the maximum
possible hours of driving in a day), industry comments make clear that
for many drivers the reason that they have stopped short of the 11th
hour is that they do not schedule a trip for more than 10 hours and use
the 11th hour to deal with unplanned events (crashes, weather delays,
unexpected congestion). Thus, drivers have chosen to leave a cushion
between their driving and the limit (stopping at a convenient point to
avoid exceeding the limit). To the extent that this takes place, and
the drivers chose to use the same cushion under Option 2 (10 hours),
dropping the driving limit by 1 hour would affect driving on that day
by the full 1 hour. For example, drivers who would stop at 10.5 or
10.75 hours under an 11-hour limit could be expected to stop at 9.5 or