[Federal Register Volume 75, Number 249 (Wednesday, December 29, 2010)]
[Proposed Rules]
[Pages 82170-82198]
[FR Doc No: 2010-32251]

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Part III

Department of Transportation

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Federal Motor Carrier Safety Administration

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

Hours of Service of Drivers; Proposed Rule

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

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DEPARTMENT OF TRANSPORTATION

Federal Motor Carrier Safety Administration

49 CFR Parts 385, 386, 390, and 395

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

Hours of Service of Drivers

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

ACTION: Notice of proposed rulemaking.

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

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

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

FOR FURTHER INFORMATION CONTACT: Mr. Thomas Yager, Chief, Driver and
Carrier Operations Division, Federal Motor Carrier Safety
Administration, U.S. Department of Transportation, 1200 New Jersey
Avenue, SE., Washington, DC 20590,<PHONE_NUMBER>.

SUPPLEMENTARY INFORMATION:

Table of Contents

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

I. Public Participation and Request for Comments

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

A. Submitting Comments

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

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

B. Viewing Comments and Documents

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

C. Privacy Act

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

II. Overview

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

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

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

III. Legal Basis

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

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

IV. Background

A. History

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

B. Process

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

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

C. Description of Industry

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

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

V. Agency Goals

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

A. Safety--Fatigue

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

B. Driver Health

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

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

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

              Table 3: Health Habit and Risk Relationships
------------------------------------------------------------------------

------------------------------------------------------------------------
Long hours............................  [rarr]  Insufficient sleep.
                                        [rarr]  Obesity.
                                        [rarr]  CVD.
------------------------------------------------------------------------
Insufficient sleep....................  [rarr]  Obesity.
                                        [rarr]  High blood pressure.
                                        [rarr]  Diabetes.
------------------------------------------------------------------------
Sedentary pattern.....................  [rarr]  Obesity.
                                        [rarr]  Metabolism.
                                        [rarr]  Increased risk of
                                                 mortality.
------------------------------------------------------------------------
Obesity...............................  [rarr]  Obstructive sleep apnea.
                                        [rarr]  High blood pressure.
                                        [rarr]  CVD.
                                        [rarr]  Stroke.
                                        [rarr]  Diabetes.
                                        [rarr]  Arthritis.
                                        [rarr]  Other disease.
------------------------------------------------------------------------

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

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

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

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

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

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

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

C. Flexibility

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

VI. Discussion of Proposed Rule

A. Driving Time

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

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

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

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

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

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

B. Breaks

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

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

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

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

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

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

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

C. Duty Time/Driving Window

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

D. Restart and Weekly Limits

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

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

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

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

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

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

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

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

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

E. Sleeper Berth

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

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

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

F. Other Issues

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

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

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

VII. Section-by-Section Analysis

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

VIII. Required Analyses

A. Executive Order 12866

    Under Executive Order (E.O.) 12866 (58 FR 51735, October 4, 1993),
FMCSA must determine whether a regulatory action is ``significant''
and, therefore, subject to Office of Management and Budget review and
the requirements of the E.O. The E.O. defines ``significant regulatory
action'' as one that is likely to result in a rule that may: