[Federal Register Volume 84, Number 163 (Thursday, August 22, 2019)]
[Proposed Rules]
[Pages 44190-44222]
[FR Doc No: 2019-17810]

Vol. 84

Thursday,

No. 163

August 22, 2019

Part VI

 Department of Transportation

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Federal Motor Carrier Safety Administration

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49 CFR Part 395

 Hours of Service of Drivers; Proposed Rule

Federal Register / Vol. 84, No. 163 / Thursday, August 22, 2019 /
Proposed Rules

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DEPARTMENT OF TRANSPORTATION

Federal Motor Carrier Safety Administration

49 CFR Part 395

[Docket No. FMCSA-2018-0248]
RIN 2126-AC19

Hours of Service of Drivers

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

ACTION: Notice of proposed rulemaking (NPRM).

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SUMMARY: FMCSA proposes amendments to its hours-of-service (HOS)
requirements to provide greater flexibility for drivers subject to the
HOS rules without adversely affecting safety. This would be
accomplished by altering the short-haul exception to the record of duty
status (RODS) requirement available to certain commercial motor vehicle
(CMV) drivers, modifying the adverse driving conditions exception,
increasing flexibility for the 30-minute break rule by requiring a
break after 8 hours of driving time (instead of on-duty time) and
allowing on-duty/not driving periods as qualifying breaks from driving,
modifying the sleeper berth exception to allow a driver to spend a
minimum of 7 hours in the berth combined with a minimum 2-hour off-duty
period, provided the combined periods total 10 hours (rather than the
current 8/2 split), and allowing one off-duty break that would pause a
truck driver's 14-hour driving window.

DATES: Comments on this notice must be received on or before October 7,
2019.

ADDRESSES: You may submit comments identified by Docket Number FMCSA-
2018-0248 using any of the following methods:
     Federal eRulemaking Portal: http://www.regulations.gov.
Follow the online instructions for submitting comments.
     Mail: Docket Management Facility, U.S. Department of
Transportation, 1200 New Jersey Avenue SE, West Building, Ground Floor,
Room W12-140, Washington, DC 20590-0001.
     Hand Delivery or Courier: West Building, Ground Floor,
Room W12-140, 1200 New Jersey Avenue SE, Washington, DC 20590, between
9 a.m. and 5 p.m. ET, Monday through Friday, except Federal holidays.
     Fax:<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 for instructions on submitting
comments.

FOR FURTHER INFORMATION CONTACT: Mr. Richard Clemente, Federal Motor
Carrier Safety Administration, 1200 New Jersey Avenue SE, Washington,
DC 20590-0001, by telephone at<PHONE_NUMBER>, or email at
<EMAIL_ADDRESS>If you have questions on viewing or submitting material
to the docket, contact Docket Services, telephone<PHONE_NUMBER>.

SUPPLEMENTARY INFORMATION: This NPRM is organized as follows:

I. Public Participation and Request for Comments
    A. Submitting Comments
    B. Viewing Comments and Documents
    C. Privacy Act
    D. Advance Notice of Proposed Rulemaking
II. Executive Summary
    A. Purpose and Summary of the Regulatory Action
    B. Summary of Major Provisions
    C. Costs and Benefits
III. Abbreviations and Acronyms
IV. Legal Basis for the Rulemaking
V. Background
VI. Overview of Comments to the ANPRM
VII. Discussion of the Proposed Rulemaking
    A. Short-Haul Operations
    B. Adverse Driving Conditions
    C. 30-Minute Break
    D. Sleeper Berth
    E. Split Duty Provision
    F. TruckerNation Petition
    G. Other Petitions
    H. Compliance Date for the Rulemaking
VIII. International Impacts
IX. Section-by-Section Analysis
    A. Section 395.1 Scope of Rules in This Part
    B. Section 395.3 Maximum Driving Time for Property-Carrying
Vehicles
X. Regulatory Analyses
    A. Executive Order (E.O.) 12866 (Regulatory Planning and
Review), E.O. 13563 (Improving Regulation and Regulatory Review),
and DOT Regulatory Policies and Procedures
    B. E.O. 13771 (Reducing Regulation and Controlling Regulatory
Costs)
    C. Regulatory Flexibility Act
    D. Assistance for Small Entities
    E. Unfunded Mandates Reform Act of 1995
    F. Paperwork Reduction Act
    G. E.O. 13132 (Federalism)
    H. E.O. 12988 (Civil Justice Reform)
    I. E.O. 13045 (Protection of Children)
    J. E.O. 12630 (Taking of Private Property)
    K. Privacy
    L. E.O. 12372 (Intergovernmental Review)
    M. E.O. 13211 (Energy Supply, Distribution, or Use)
    N. E.O. 13783 (Promoting Energy Independence and Economic
Growth)
    O. E.O. 13175 (Indian Tribal Governments)
    P. National Technology Transfer and Advancement Act (Technical
Standards)
    Q. Environment (NEPA, CAA)

I. Public Participation and Request for Comments

A. Submitting Comments

    If you submit a comment, please include the docket number for this
NPRM (Docket No. FMCSA-2018-0248), indicate the specific section of
this document to which each comment applies, and provide a reason for
each suggestion or recommendation. You may submit your comments and
material online or by fax, mail, or hand delivery, but please use only
one of these means. FMCSA recommends that you include your name and a
mailing address, an email address, or a telephone number in the body of
your document so that FMCSA can contact you if there are questions
regarding your submission.
    To submit your comment online, go to http://www.regulations.gov,
put the docket number, FMCSA-2018-0248, in the keyword box, and click
``Search.'' When the new screen appears, click on the ``Comment Now!''
button and type your comment into the text box on the following screen.
Choose whether you are submitting your comment as an individual or on
behalf of a third party and then submit.
    If you submit your comments by mail or hand delivery, submit them
in an unbound format, no larger than 8\1/2\ by 11 inches, suitable for
copying and electronic filing. If you submit comments by mail and would
like to know that they reached the facility, please enclose a stamped,
self-addressed postcard or envelope.
    FMCSA will consider all comments and material received during the
comment period and may change this proposed rule based on your
comments. FMCSA may issue a final rule at any time after the close of
the comment period.
Confidential Business Information
    Confidential Business Information (CBI) is commercial or financial
information that is customarily not made available to the general
public by the submitter. Under the Freedom of Information Act (5 U.S.C.
552), CBI is eligible for protection from public disclosure. If you
have CBI that is relevant or responsive to this NPRM, it is important
that you clearly designate the submitted comments as CBI. Accordingly,
please mark each page of your submission as ``confidential'' or
``CBI.'' Submissions designated as CBI and meeting the definition noted
above will not be placed in the public docket of this NPRM. Submissions
containing CBI should be sent to Brian Dahlin, Chief, Regulatory
Evaluation Division,

Federal Motor Carrier Safety Administration, 1200 New Jersey Avenue SE,
Washington, DC 20590-0001. Any commentary that FMCSA receives that is
not specifically designated as CBI will be placed in the public docket
for this rulemaking.

B. Viewing Comments and Documents

    To view comments, as well as any documents mentioned in this
preamble as being available in the docket, go to http://www.regulations.gov. Insert the docket number, FMCSA-2018-0248, in the
keyword box, and click ``Search.'' Next, click the ``Open Docket
Folder'' button and choose the document to review. If you do not have
access to the internet, you may view the docket online by visiting the
Docket Management Facility in Room W12-140 on the ground floor of the
DOT West Building, 1200 New Jersey Avenue SE, Washington, DC 20590-
0001, between 9 a.m. and 5 p.m. ET, Monday through Friday, except
Federal holidays.

C. Privacy Act

    In accordance with 5 U.S.C. 553(c), DOT solicits comments from the
public to better inform its rulemaking process. DOT posts these
comments, without edit, including any personal information the
commenter provides, to www.regulations.gov, as described in the system
of records notice (DOT/ALL-14 FDMS), which can be reviewed at
www.transportation.gov/privacy.

D. Advance Notice of Proposed Rulemaking

    Under section 5202 of the Fixing America's Surface Transportation
Act (FAST Act), Public Law 114-94, 129 Stat. 1312, 1534-1535 (Dec. 4,
2015), if a regulatory proposal is likely to lead to the promulgation
of a major rule, FMCSA is required to engage in negotiated rulemaking
or publish an advance notice of proposed rulemaking (ANPRM), unless the
Agency finds good cause that an ANPRM is impracticable, unnecessary, or
contrary to the public interest (49 U.S.C. 31136(g)). FMCSA published
an ANPRM on August 23, 2018 (83 FR 42631).\1\
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    \1\ On August 21, 2018, FMCSA posted the ANPRM at https://www.fmcsa.dot.gov/regulations/hours-service-advanced-notice-proposed-rulemaking.
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II. Executive Summary

A. Purpose and Summary of the Regulatory Action

    The implementation of the Electronic Logging Device (ELD) rule (80
FR 78292, Dec. 16, 2015) and the ELD's ability to increase compliance
with HOS regulations for drivers of CMVs prompted numerous requests
from Congress and from CMV operators for FMCSA to consider revising
certain HOS provisions. FMCSA has received petitions from multiple
stakeholders requesting relief from the HOS rules, including the Owner-
Operator Independent Drivers Association (OOIDA) and TruckerNation.org
(TruckerNation).\2\ In response, FMCSA published the August 23, 2018
ANPRM, and held five public listening sessions. Today's NPRM addresses
the areas of concern discussed in the petitions, listening sessions,
and in the ANPRM.
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    \2\ These are available in the public docket for this rulemaking
at: https://www.regulations.gov/document?D=FMCSA-2018-0248-1210 and
https://www.regulations.gov/document?D=FMCSA-2018-0248-0003,
respectively.
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B. Summary of Major Provisions

    Today's proposal would improve efficiency by providing flexibility
in five areas, allowing operators to shift their work and drive time to
mitigate the effect of certain variables (e.g., weather, traffic,
detention times). Today's proposal would extend the maximum duty period
allowed under the short-haul exception available to certain CMV drivers
under 49 CFR 395.1(e)(1) from 12 hours to 14 hours. It would also
extend, from a 100 to a 150 air-mile radius, the maximum distance from
the work-reporting location in which drivers qualifying for the short-
haul exception may operate. FMCSA also proposes to modify the exception
for adverse driving conditions in Sec.  395.1(b)(1) by allowing such
conditions to extend the maximum driving windows under Sec. Sec.
395.3(a)(2) and 395.5(a)(2) by up to 2 hours. The Agency proposes to
make the 30-minute break requirement for property-carrying CMV drivers
in Sec.  395.3(a)(3)(ii) applicable only in situations where a driver
has driven for a period of 8 hours without at least a 30-minute non-
driving interruption. If required, a 30-minute break could be satisfied
with a period, either off duty, in the sleeper berth, or on-duty not-
driving. FMCSA also proposes to modify the sleeper-berth requirements
to allow drivers to take their required 10 hours off duty in two
periods, provided one off-duty period (whether in or out of the sleeper
berth) is at least 2 hours long and the other involves at least 7
consecutive hours spent in the sleeper berth. Neither time period would
count against the maximum 14-hour driving window in Sec.  395.3(a)(2).
Finally, FMCSA proposes to add a new option under Sec.
395.3(a)(3)(iii) that would allow one off-duty break of at least 30
minutes, but not more than 3 hours, during the course of a driver's 14-
hour driving window to extend that period for the length of the break,
provided drivers take at least 10 consecutive hours off duty at the end
of the work shift.

C. Costs and Benefits

    The proposed rule would not result in any new costs for regulated
entities. Instead, the proposed rule would result in increased
flexibility for drivers and a quantified reduction in costs for motor
carriers. The Federal Government would incur a one-time electronic
Record of Duty Status (eRODS) software update cost of approximately
$20,000. The proposed change to the 30-minute break requirement would
result in a reduction in opportunity cost, or a cost savings, for motor
carriers. FMCSA estimates that the 10-year motor carrier cost savings
attributable to the proposed changes to the 30-minute break provision,
net of the Federal Government costs, would total $2,348.9 million
discounted at 3 percent, and $1,931 million discounted at 7 percent.
These cost savings are $275.4 million annualized at a 3 percent
discount rate and $274.9 million annualized at a 7 percent discount
rate. All values are in 2017 dollars. There are a number of other
potential cost savings of this proposed rule that FMCSA considered but,
due to uncertainty about driver behavior, could not quantify on an
industry level. These non-quantified cost savings include increased
flexibility resulting from the extension of the duty day and the air-
mile radius for those operating under the short-haul exception; the
increased options for drivers to respond to adverse driving conditions
during the course of their duty period; reducing the need to apply for
exemptions from the 30-minute break requirement; and increased
flexibility afforded to drivers, such as increased options with regard
to on-duty and off-duty time resulting from changes to the 30-minute
break requirement, the sleeper-berth provisions, and the new split duty
period provision.
    None of the proposals in today's NPRM would increase the maximum
allowable driving time, but may change the number of hours driven, or
hours worked during a given work shift. The flexibilities in this
proposal are intended to allow drivers to shift their drive and work
time to mitigate the impacts of certain variables (e.g., weather,
traffic, detention times) and to take breaks without penalty when they
need rest; FMCSA does not anticipate that any of these time shifts
would negatively impact drivers' health. As discussed later in this
document,

FMCSA anticipates that individual drivers may see a change in their
work hours (both driving and non-driving) or vehicle miles traveled
(VMT), but that the proposed changes would not result in an increase in
freight movement or aggregate VMT. Aggregate VMT is determined by many
factors, including market demand for transportation. FMCSA does not
anticipate that the changes proposed in this rule would stimulate
demand in the freight market, but acknowledges that freight loads may
shift from one carrier or driver to another. However, FMCSA also
acknowledges that if drivers and motor carriers cannot meet the current
freight demands, the proposed rule may enable them to rearrange their
daily schedules such that additional loads could be moved, resulting in
an increase in aggregate VMT. FMCSA considers this an unlikely outcome
of the proposed rule, and after consideration of the potential impacts,
has determined that this proposal would not adversely affect driver
fatigue levels or safety.

                                            Table 1--Today's Proposal
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              HOS provision                Existing requirement      Proposed changes        Potential impacts
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Short Haul..............................  Drivers using the       Would extend the        Increase the number of
                                           short haul exception    maximum duty period     drivers able to take
                                           applicable to drivers   allowed under the       advantage of the
                                           requiring CDL may not   short-haul exception    short-haul exception.
                                           be on duty more than    available to certain   Shift work and drive
                                           12 hours.               CMV drivers from 12     time from long-haul
                                          Drivers using the        hours to 14 hours.      to short-haul, or
                                           short haul exception   Would also extend,       from driver to
                                           applicable to drivers   from a 100 to a 150     driver.
                                           requiring CDL may not   air-mile radius, the   No increase in freight
                                           drive beyond a 100      maximum distance in     movement or aggregate
                                           air-mile radius.        which drivers           VMT.
                                                                   qualifying for the
                                                                   short-haul exception
                                                                   may operate.
Adverse Driving Conditions..............  A driver may drive and  Would allow a driver    Increase the use of
                                           be permitted or         to use the adverse      the adverse driving
                                           required to drive a     driving conditions      condition provision.
                                           commercial motor        exception to extend    Allow driving later in
                                           vehicle for not more    the maximum ``driving   the work day,
                                           than 2 additional       windows'' by up to 2    potentially shifting
                                           hours beyond the        hours. This proposed    forward the hours
                                           maximum time allowed.   change would apply      driven and VMT
                                           However, this does      for both property-      travelled
                                           not currently extend    carrying (14-hour      Allow drivers time to
                                           the maximum ``driving   ``driving window'')     park and wait out the
                                           windows''.              and passenger-          adverse condition or
                                                                   carrying (15-hour       driving slowly
                                                                   ``driving window'')     through it. This has
                                                                   operators.              the potential to
                                                                                decrease crash risk
                                                                                relative to current
                                                                                requirements,
                                                                                assuming drivers now
                                                                                drive through adverse
                                                                                conditions
                                                                                No increase in freight
                                                                                volume or aggregate
                                                                                VMT, as adverse
                                                                                conditions cannot be
                                                                                planned for in
                                                                                advance.
30 Minute Break.........................  If more than 8          Would make the 30-      Increase the on-duty/
                                           consecutive hours       minute break            non-driving time by
                                           have passed since the   requirement for         up-to 30 minutes, or
                                           last off-duty (or       property-carrying CMV   allow drivers to
                                           sleeper berth) period   drivers applicable      reach their
                                           of at least half an     only in situations      destination earlier.
                                           hour, a driver must     where a driver has     No anticipated fatigue
                                           take an off-duty        driven for a period     effect because
                                           break of at least 30    of 8 hours without at   drivers continue to
                                           minutes before          least a 30-minute       be constrained by the
                                           driving.                interruption. If        11-hour driving limit
                                                                   required, a 30-minute   and would continue to
                                                                   break could be          receive on-duty/non-
                                                                   satisfied with a non-   driving breaks from
                                                                   driving period,         the driving task.
                                                                   either off duty, in     Additionally, drivers
                                                                   the sleeper berth, or   are enabled to take
                                                                   on-duty not-driving.    off-duty breaks when
                                                                                needed via the split-
                                                                                duty day provision.
                                                                                Minimal or no change
                                                                                to hours driven or
                                                                                VMT, as the current
                                                                                off-duty break only
                                                                                impacts these factors
                                                                                if the schedule
                                                                                required driving late
                                                                                within the 14-hour
                                                                                driving window.
Split-Sleeper Berth.....................  A driver can use the    Would modify the        Allow one hour to be
                                           sleeper berth to get    sleeper-berth           shifted from the
                                           the ``equivalent of     requirements to allow   longer rest period to
                                           at least 10             drivers to take their   the shorter rest
                                           consecutive hours off   required 10 hours off-  period.
                                           duty.'' To do this,     duty in two periods,   Potentially increase
                                           the driver must spend   provided one off-duty   the use of sleeper
                                           at least 8              period (whether in or   berths because
                                           consecutive hours       out of the sleeper      drivers using a berth
                                           (but less than 10       berth) is at least 2    have two additional
                                           consecutive hours) in   hours long and the      hours to complete 11
                                           the sleeper berth.      other involves at       hours of driving (by
                                           This rest period does   least 7 consecutive     virtue of excluding
                                           not count as part of    hours spent in the      the shorter rest
                                           the 14-hour limit. A    sleeper berth.          period from the
                                           second, separate rest   Neither time period     calculation of the 14-
                                           period must be at       would count against     hour driving window).
                                           least 2 (but less       the maximum 14-hour    No anticipated effect
                                           than 10) consecutive    driving window.         on fatigue because
                                           hours long. This                                aggregate drive
                                           period may be spent                             limits and off-duty
                                           in the sleeper berth,                           time remains
                                           off duty, or sleeper                            unchanged.
                                           berth and off duty                             Hours driven or VMT
                                           combined. It does                               may change for an
                                           count as part of the                            individual driver on
                                           maximum 14-hour                                 a given work shift
                                           driving window.                                 (by increased use of
                                                                                the sleeper berth).
                                                                                Total hours driven or
                                                                                aggregate VMT would
                                                                                remain the same.

Split-Duty Provision....................  Once the duty period    Would add a new option  Allow up to 3 hours in
                                           starts, it runs for     for one off duty        an off-duty status to
                                           14 consecutive hours,   break of at least 30    be excluded from the
                                           after which the         minutes, but not more   14-hour driving
                                           driver may not drive    than 3 hours, during    window.
                                           a commercial motor      the course of a        Drivers could use this
                                           vehicle (CMV) again     driver's 14-hour        time to: Rest without
                                           until having another    ``driving window'' to   the penalty of losing
                                           10 or more              extend that period      time in their driving
                                           consecutive hours off   for the length of the   window, avoid traffic
                                           duty. Nothing stops     break, provided that    via waiting in a
                                           the running of the      drivers take at least   parking lot and
                                           ``14-hour clock''       10 consecutive hours    increase their VMT
                                           except a minimum 8-     off duty at the end     efficiency, or
                                           hour period in a        of the work shift.      mitigate the effect
                                           sleeper berth.                                  on the 14-hour rule
                                                                                of long detention
                                                                                times by allowing
                                                                                driving later in the
                                                                                work shift.
                                                                                Minimizing the effect
                                                                                on fatigue because
                                                                                drivers could use the
                                                                                voluntary pause to
                                                                                rest, off-setting any
                                                                                potential effect of
                                                                                driving later in the
                                                                                work shift.
                                                                                Depending on the
                                                                                situation, hours
                                                                                driven and VMT on a
                                                                                given work shift
                                                                                could: Remain the
                                                                                same but shift within
                                                                                the driving window;
                                                                                decrease the hours
                                                                                driven by increasing
                                                                                VMT per hour; allow
                                                                                the driver to finish
                                                                                more work during the
                                                                                current work shift
                                                                                instead of postponing
                                                                                it to the next one.
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III. Abbreviations and Acronyms

ANPRM Advance notice of proposed rulemaking
CAA Clean Air Act
CBI Confidential Business Information
CE Categorical Exclusion
CFR Code of Federal Regulations
CMV Commercial motor vehicle
DOT Department of Transportation
ELD Electronic logging device
E.O. Executive Order
eRODS Electronic record of duty status
FAST Act Fixing America's Surface Transportation Act
FMCSA Federal Motor Carrier Safety Administration
FMCSRs Federal Motor Carrier Safety Regulations
FR Federal Register
HOS Hours of service
NEPA National Environmental Policy Act
NPRM Notice of proposed rulemaking
OMB Office of Management and Budget
OOIDA Owner-Operator Independent Drivers Association
RODS Record of duty status
RFA Regulatory Flexibility Act
SCE Safety critical event
Sec.  Section
Secretary Secretary of Transportation
SBREFA Small Business Regulatory Enforcement Fairness Act of 1996
TruckerNation TruckerNation.org
UDA United Drivers Association
U.S.C. United States Code
USTA United States Transportation Alliance

IV. Legal Basis for the Rulemaking

    This NPRM is based on the authority derived from the Motor Carrier
Act of 1935 (1935 Act) and the Motor Carrier Safety Act of 1984 (1984
Act). The 1935 Act, as amended, provides that ``The Secretary of
Transportation may prescribe requirements for--(1) qualifications and
maximum hours of service of employees of, and safety of operation and
equipment of, a motor carrier; and (2) qualifications and maximum hours
of service of employees of, and standards of equipment of, a motor
private carrier, when needed to promote safety of operation.'' (49
U.S.C. 31502(b)(1), (2)).
    The HOS regulations proposed below concern the ``maximum hours of
service of employees'' of both motor carriers and motor private
carriers, as authorized by the 1935 Act.
    This NPRM also is based on the authority of the 1984 Act, as
amended, which provides broad concurrent authority to regulate drivers,
motor carriers, and vehicle equipment. It requires the Secretary of
Transportation to ``prescribe regulations on commercial motor vehicle
safety. The regulations shall prescribe minimum safety standards for
commercial motor vehicles.'' The 1984 Act also requires that: ``At a
minimum, the regulations shall ensure that--(1) commercial motor
vehicles are maintained, equipped, loaded, and operated safely; (2) the
responsibilities imposed on operators of commercial motor vehicles do
not impair their ability to operate the vehicles safely; (3) the
physical condition of operators of commercial motor vehicles is
adequate to enable them to operate the vehicles safely . . . ; (4) the
operation of commercial motor vehicles does not have a deleterious
effect on the physical condition of the operators; and (5) an operator
of a commercial motor vehicle is not coerced by a motor carrier,
shipper, receiver, or transportation intermediary to operate a
commercial motor vehicle in violation of a regulation promulgated under
this section. . .'' (49 U.S.C. 31136(a)(1)-(5)).
    This NPRM is based specifically on section 31136(a)(2) and, less
directly, sections 31136(a)(3) and (4). To the extent section
31136(a)(1) focuses on the mechanical condition of CMVs, that subject
is not included in this rulemaking. However, as the phrase ``operated
safely'' in paragraph (a)(1) encompasses safe driving practices, this
proposed rule also addresses that mandate. To the extent section
31136(a)(4) focuses on the health of the driver, the Agency addresses
that issue under the section Driver Health Comments, below. As for
section 31136(a)(5), FMCSA anticipates the added flexibility of the
NPRM would not increase the risk of coercion related to HOS rules.
    Before prescribing regulations under these authorities, FMCSA must
consider their ``costs and benefits'' (49 U.S.C. 31136(c)(2)(A) and
31502(d)). Those factors are addressed below.

V. Background

    The HOS regulations in effect until 2003 were promulgated pursuant
to the Motor Carrier Act of 1935 and then reissued under the Motor
Carrier Safety Act of 1984, along with the rest of the Federal Motor
Carrier Safety Regulations (53 FR 18042, May 19, 1988). The HOS rules
are codified at Part 395 of Title 49 CFR. These regulations were
originally promulgated in 1937, revised several times before 1940, and
then left largely unchanged until 1962. They required 8 hours off
between tours of duty work shifts that could be of indeterminate
length, lasting until the driver accumulated a total of 15 hours on
duty. Concerns that these regulations were outdated and contributed to
driver fatigue led to an effort to incorporate new knowledge about
fatigue and rest, and their effects on safety.
    Revisions to the HOS regulations were proposed in an NPRM published
in the May 2, 2000, Federal Register (65 FR 25540). Following reviews
of the comments to the docket and additional study, FMCSA developed a
revised set of HOS regulations. The final rule (the

``2003 HOS rule'') was promulgated on April 28, 2003 (68 FR 22456), and
took effect on January 4, 2004. A regulatory impact analysis (RIA)
comparing the costs, benefits, and impacts of this rule relative to the
previous rule and several alternatives was prepared in accordance with
the requirements of Executive Order 12866. That RIA, which is available
in the HOS rule docket, showed that full compliance with the 2003 HOS
rule could both save lives and increase productivity compared to full
compliance with the rule then in existence. Much of the safety
advantage of the 2003 HOS rule was shown to come from the mandate for
at least 10 hours off after each tour of duty, and from helping to keep
drivers on a regular 24-hour cycle.
    After the 2003 HOS rule had been in effect for several months, it
was vacated by a Federal appellate court. On July 16, 2004, the United
States Court of Appeals for the D.C. Circuit held that FMCSA had not
considered effects of the changes in the HOS rule on drivers' health,
as required by 49 U.S.C. 31136(a)(4). Public Citizen et al. v. FMCSA,
374 F.3d 1209 (D.C. Cir. 2004). Additionally, the court expressed
concerns about several areas of the rule, including:
    [ssquf] Permission to drive 11 hours in a tour of duty, rather than
10;
    [ssquf] Allowing more hours on duty in a given week, as a result of
the restart provisions;
    [ssquf] Allowing drivers to split their off-duty periods into two
parts through the use of sleeper berths; and
    [ssquf] Lack of consideration of the use of electronic on-board
recorders.
    In response to the court's action, Congress reinstated the 2003 HOS
rule for a year, to give FMCSA a chance to revisit the issues cited by
the court. A new HOS rule was published on August 25, 2005, retaining
most of the provisions of the 2003 rule but requiring drivers using
sleeper berths to spend 8 consecutive hours in the berth and take an
additional 2 hours either off duty or in the sleeper berth; this 2 hour
period must be counted against the 14 hour driving window (70 FR
49978). This established one ``core'' 8-hour period of sleep, as called
for by various scientific research studies, yet provided the driver
flexibility in use of the shorter off-duty period. Drivers, however,
objected to 8 hours in the sleeper berth, and, in general, to the lack
of flexibility provided by the sleeper-berth provisions and 14-hour
rule. The 2005 HOS rule also provided relief to some short-haul
operations using lighter trucks.
    Public Citizen and others challenged the August 2005 rule on
several grounds. On July 24, 2007, the D.C. Circuit ruled in favor of
Public Citizen and vacated the 11-hour driving time and 34-hour restart
provisions (Owner-Operator Independent Drivers Association. Inc. v.
FMCSA, 494 F.3d 188 (D.C. Cir. 2007)). The court concluded that FMCSA
had violated the Administrative Procedure Act's requirements by failing
to provide an opportunity for public comment on the methodology of the
Agency's operator-fatigue model, which FMCSA had used to assess the
costs and benefits of alternative changes to the 2005 HOS rule. In
particular, the court found that the Agency had not adequately
disclosed and made available for review the modifications it had made
to the 2003 operator-fatigue model to account for time-on-task (TOT)
effects in the 2005 analysis. The court concluded that FMCSA's
methodology had not remained constant from 2003 to 2005 because the TOT
element in the model was new and constituted the Agency's response to a
defect in its previous methodology. The court concluded that the Agency
violated the Administrative Procedure Act because it failed to give
interested parties an opportunity to comment on the methodology of the
crash risk model that the Agency used to justify an increase in the
maximum number of daily and weekly hours that CMV drivers may drive and
work. The court listed several elements of the way FMCSA calculated the
impact of TOT that it held could not have been anticipated and that
were not disclosed in time for public comment upon them. Turning to
Public Citizen's second argument, the court also found that FMCSA had
failed to provide an adequate explanation for certain critical elements
in the model's methodology. In vacating the increase in the daily
driving limit from 10 to 11 hours, the court found arbitrary and
capricious what it described as FMCSA's ``complete lack of explanation
for an important step in the Agency's analysis,'' the manner in which
it had plotted crash risk as a function of TOT per hours of driving.
The court also found that FMCSA had failed to provide an explanation
for its method for calculating risk relative to average driving hours
in determining its estimate of the increased risk of driving in the
11th hour. In vacating the 34-hour restart provision, the court found
that FMCSA also had provided no explanation for the failure of its
operator-fatigue model to account for cumulative fatigue due to the
increased weekly driving and working hours permitted by the 34-hour
restart provision.
    In an order filed on September 28, 2007, the court granted in part
FMCSA's motion for a stay of the mandate. The court directed that
issuance of the mandate be withheld until December 27, 2007.
    On December 17, 2007, FMCSA published an Interim Final Rule (IFR)
amending the Federal Motor Carrier Safety Regulations, effective
December 27, 2007, to allow CMV drivers up to 11 hours of driving time
within a 14-hour, non-extendable window from the start of the workday,
following 10 consecutive hours off duty (72 FR 71247). The IFR also
allowed motor carriers and drivers to restart calculations of the
weekly on-duty time limits after the driver has at least 34 consecutive
hours off duty. FMCSA explained that the IFR reinstating the 11-hour
limit and the 34-hour restart was necessary to prevent disruption to
enforcement and compliance with the HOS rule when the court's stay
expired, and would ensure that a familiar and uniform set of national
rules governed motor carrier transportation. Public Citizen immediately
requested the D.C. Circuit to invalidate the IFR. However, on January
23, 2008, the court issued a per curiam order denying Public Citizen's
request. On November 19, 2008, FMCSA adopted the provisions of the IFR
as a final rule (73 FR 69567).
    On December 18, 2008, Advocates for Highway and Automotive Safety,
Public Citizen, the International Brotherhood of Teamsters, and the
Truck Safety Coalition (hereafter referred to as ``HOS petitioners'')
petitioned FMCSA to reconsider the research and crash data justifying
the 11-hour driving rule and the 34-hour restart provision. FMCSA
denied the petition on January 16, 2009. On March 9, 2009, the HOS
petitioners filed a petition for judicial review of the 2008 rule in
the D.C. Circuit and, on August 27, 2009, filed their opening brief.
However, in October 2009, DOT, FMCSA, and the HOS petitioners reached a
settlement agreement. DOT and FMCSA agreed to submit a new HOS NPRM to
the Office of Management and Budget (OMB) by July 26, 2010, and to
publish a final rule by July 26, 2011. Subsequently, FMCSA, DOT and the
HOS petitioners agreed to publish the final rule on October 28, 2011.
The parties filed a joint motion to hold the 2009 lawsuit in abeyance
pending publication of the NPRM; the court later accepted that motion.
    In 2011, after presenting various alternatives, FMCSA revised some
aspects of the HOS regulations and maintained other provisions. The
2011

Final Rule could be divided into ``daily'' and ``multi-day''
provisions, which can be expressed as follows:
    [ssquf] Drivers of property-carrying CMVs must take at least 30
minutes off-duty no later than 8 hours after coming on duty if they
wish to continue driving after the 8th hour.
    [ssquf] Drivers of property-carrying CMVs may drive up to 11 hours
following an off-duty period of at least 10 consecutive hours.
    [ssquf] Drivers of property-carrying CMVs may not drive after the
end of the 14th hour after coming on duty following an off-duty period
of at least 10 consecutive hours.
    [ssquf] Drivers of property-carrying CMVs may obtain the equivalent
of 10 consecutive hours off duty if they have a period of at least 8
hours in the sleeper berth and a second period of at least 2 hours
either off duty or in the sleeper berth. Compliance is calculated from
the end of the first two periods.
    [ssquf] For Drivers of property-carrying CMVs, any period of 7 or 8
consecutive days can begin following a period of at least 34
consecutive hours off duty provided it included 2 periods between 1:00
a.m. and 5:00 a.m.
    Several categories of motor carriers and drivers are exempt from
parts of the HOS regulations or from the entire HOS regulation under
the National Highway System (NHS) Designation Act of 1995 (referred to
as the NHS Act) and other statutes.
    Public Citizen, the American Trucking Associations, and others
challenged the 2011 final rule on several grounds. On August 2, 2013,
the D.C. Circuit vacated the requirement for short-haul drivers to take
a 30-minute break, but upheld the 2011 rule in all other respects.
American Trucking Associations, Inc., v. Federal Motor Carrier Safety
Administration, 724 F.3d 243 (2013).

The 2015 and 2016 DOT Appropriations Acts and the Further Continuing
and Security Assistance Appropriations Act, 2017

    Sec. 133 of the Consolidated and Further Continuing Appropriations
Act, 2015, Public Law 113-235, Div. K, Title I, sec. 133, 128 Stat.
2130, 2711-2713 (Dec. 16, 2014) suspended the 2011 restart provisions,
which required 2 consecutive off-duty periods between 1:00 and 5:00
a.m. and allowed only one restart per week; temporarily reinstated the
pre-2011 restart rule; and required a study of the effectiveness of the
new rule. Sec. 133 of the Consolidated Appropriations Act, 2016, Public
Law 114-113, Div. L., Title I, sec. 133, 129 Stat. 2242, 2850 (Dec. 18,
2015) made it clear that the 2011 restart provisions would have no
effect unless the study required by the 2015 DOT Appropriations Act
showed that those provisions had statistically significant benefits
compared to the pre-2011 restart rule; this Act also expanded the
factors that the Agency was required to evaluate by including driver
health and longevity. The Further Continuing and Security Assistance
Appropriations Act, 2017, Public Law 114-254, Div. A, sec. 180, 130
Stat. 1005, 1016 (Dec. 10, 2016), replaced Sec. 133 of the 2016 DOT
Appropriations Act in its entirety to correct an error and ensure that
the pre-2011 restart rule would be reinstated by operation of law \3\
unless the study required by the 2015 DOT Appropriations Act showed
that the 2011 restart rule had statistically significant benefits
compared to the pre-2011 restart rule. DOT concluded that the study
failed to find statistically significant benefits, and the Office of
Inspector General confirmed that conclusion in a report to Congress.
The pre-2011 restart rule was therefore reinstated by operation of law.
---------------------------------------------------------------------------

    \3\ Because this study failed to establish a statistically
significant improvement in the initial factors required by Congress,
evaluation of the additional factors added by Congress became moot.
---------------------------------------------------------------------------

    Executive Order (E.O.) 13771, Reducing Regulation and Controlling
Regulatory Costs, issued on January 30, 2017, directs executive
agencies of the Federal government to ``manage the costs associated
with the governmental imposition of private expenditures required to
comply with Federal regulations'' (82 FR 9339, Feb. 3, 2017). The E.O.
13777, Enforcing the Regulatory Reform Agenda, issued on February 24,
2017, sets forth regulatory reform initiatives and policies to
``alleviate unnecessary regulatory burdens placed on the American
people'' (82 FR 12285, Mar. 1, 2017). In accordance with those
Presidential directives and based upon its experience and expertise,
FMCSA reviewed the driver HOS regulations to determine if revisions
might alleviate unnecessary regulatory burdens while maintaining CMV
driver safety and health and motor carrier safety, as well as the
safety of the public. On May 17, 2018, 5 months after the
implementation of the ELD mandate mentioned above, Administrator
Martinez received a letter signed by 30 Senators (available in the
docket for this rulemaking) expressing support for greater flexibility
in the HOS regulations.
    The DOT has longstanding processes to periodically review
regulations and other agency actions.\4\ If appropriate, FMCSA will
revise regulations to ensure that they continue to meet the needs for
which they were originally designed and that they remain justified, in
accordance with applicable executive orders.\5\ On October 2, 2017, DOT
published a Notification of Regulatory Review, stating that it was
reviewing its ``existing regulations and other agency actions to
evaluate their continued necessity, determine whether they are crafted
effectively to solve current problems, and evaluate whether they
potentially burden the development or use of domestically produced
energy resources'' (82 FR 45750). As part of these reviews, DOT sought
public comment on existing rules that are good candidates for repeal,
replacement, suspension, or modification. The HOS regulations and ELDs
were the most common substantive topics discussed in response to the
DOT Notification of Regulatory Review. The HOS regulations were
identified as an area for potential modifications both as a result of
the public comments received and due to changes in tracking HOS
compliance through implementation of the ELD rulemaking. The accuracy
of the electronic data provided to enforcement is much higher than the
information that was previously provided on paper. While the ELD rule
did not change the HOS rules, the accurate recording of driving time by
ELDs highlighted the rigidity of HOS provisions and the practical
ramifications drivers faced.
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    \4\ Section 610 of the Regulatory Flexibility Act requires
Federal Agencies to periodically conduct reviews of rules that: (1)
Have been published within the last 10 years; and (2) have a
``significant economic impact on a substantial number of small
entities.'' Agencies publish in the Federal Register the results of
any such rules they reviewed during the past year, as well as a list
of rules to be reviewed the next year.
    \5\ See Exec. Order No. 13777, sec. 1, (Mar. 1, 2017, 82 FR
12285) (``It is the policy of the United States to alleviate
unnecessary regulatory burdens placed on the American people or . .
.''); E.O. 13610 (May 14, 2012, 77 FR 28469) (requiring agencies to
conduct retrospective analyses of existing rules to determine
whether they remain justified); E.O. 13563, sec. 6(b) (Jan. 21,
2011, 76 FR 3821) (requiring agencies to submit a plan ``under which
the agency will periodically review its existing significant
regulations to determine whether any such regulations should be
modified, streamlined, expanded, or repealed so as to make the
agency's regulatory program more effective or less burdensome in
achieving the regulatory objectives''); E.O. 12866, sec. 5, (Sept.
30, 1993, pub. 58 FR 51735) (requiring each agency to ``review its
existing significant regulations to determine whether any such
regulations should be modified or eliminated so as to make the
agency's regulatory program more effective in achieving the
regulatory objectives, less burdensome, or in greater alignment with
the President's priorities and the principles set forth in this
Executive order'').

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

    The August 23, 2018, ANPRM (83 FR 42631) requested public comment
on four areas pertaining to the HOS rules: Short-haul operations, the
adverse driving conditions exception, the 30-minute break requirement,
and the sleeper-berth provision. The ANPRM also sought public comment
on two petitions for rulemaking relating to the HOS rules, one from
OOIDA and one from TruckerNation.

OOIDA Petition for Rulemaking

    On February 13, 2018, OOIDA petitioned FMCSA to amend the HOS rules
to allow drivers to take an off-duty rest break for up to 3 consecutive
hours once per 14-hour driving window. OOIDA requested that the rest
break stop the 14-hour clock and extend the latest time a driver could
drive after coming on duty. However, drivers would still be limited to
11 hours of driving time and required to have at least 10 consecutive
hours off duty before the start of the next work shift.
    OOIDA's petition also included a request that the Agency eliminate
the 30-minute break requirement. The organization explained that there
are many operational situations where the 30-minute break requires
drivers to stop when they do not feel tired.

TruckerNation Petition for Rulemaking

    On May 10, 2018, TruckerNation petitioned the Agency to revise the
prohibition against driving after the 14th hour following the beginning
of the work shift. As an alternative, the organization requested that
the Agency prohibit driving after the driver has accumulated 14-hours
of on-duty time.
    In addition, TruckerNation requested that FMCSA allow drivers to
use multiple off-duty periods of 3 hours or longer in lieu of having 10
consecutive hours off-duty and eliminate the 30-minute break
requirement.

Additional Petitions for Rulemaking

    Two additional petitions for rulemaking were received; one from the
United States Transportation Alliance (USTA) and one from the United
Drivers Association (UDA).\6\ The petitions were not discussed in the
ANPRM due to the timing of receipt; however, they were reviewed and
considered in the development of this NPRM.
---------------------------------------------------------------------------

    \6\ These petitions are available at https://www.regulations.gov/document?D=FMCSA-2018-0248-2550 and https://www.regulations.gov/document?D=FMCSA-2018-0248-0342.
---------------------------------------------------------------------------

    The USTA petition proposed an HOS rule that would prohibit driving
after 80 hours on duty in a 7-day period (instead of the 60-hour limit
in Sec. Sec.  395.3(b)(1) and 395.1(b)(1), and allow a 14-hour day for
driving or other work duties. The drivers' remaining 10 hours would
include 2 hours of off-duty time, and 8 hours of sleeper-berth time
could be split into two segments, with a minimum of 2 hours per
segment. The 80-hour clock would be reset by 24 hours off duty. The
petition is included in the docket referenced at the beginning of this
notice.
    The UDA proposal maintained the 14/10 HOS rule; however, the 10
hours off duty could be split into two 5-hour sleeper-berth periods.
The weekly on-duty time, after which driving would be prohibited, would
be 80 hours in an 8-day period, with a 24-hour restart, similar to that
proposed by USTA. The petition is included in the docket referenced at
the beginning of this notice.

Public Listening Sessions

    FMCSA held a series of public listening sessions following the
release of the ANPRM. These were held in Dallas, Texas, on August 24,
2018; Reno, Nevada, on September 24, 2018; Joplin, Missouri, on
September 28, 2018; Orlando, Florida, on October 2, 2018; and
Washington, DC, on October 10, 2018.\7\ Transcripts of those listening
sessions are available in the public docket for the rulemaking, and the
sessions are available to stream at https://www.fmcsa.dot.gov/mission/policy/public-listening-sessions-hours-service.
---------------------------------------------------------------------------

    \7\ Listening sessions were announced in the Federal Register at
83 FR 42631, August 23, 2018; 83 FR 45204, September 6, 2018; 83 FR
47589, September 20, 2018; 83 FR 48787, September 27, 2018, and 83
FR 50055, October 4, 2018. The listening session scheduled for
September 14, 2018 in Washington, DC was canceled and rescheduled.
---------------------------------------------------------------------------

VI. Overview of Comments to the ANPRM

    The ANPRM asked a series of questions about the four topics and the
two petitions for rulemaking mentioned above, but did not propose any
regulatory changes. FMCSA appreciates the comments submitted. The
Agency requests that individuals responding to the ANPRM comment again
in the context of today's NPRM.
    As noted above, FMCSA held a series of listening sessions. Comments
provided at those sessions have been considered in the development of
section VII of this preamble, ``Discussion of the Proposed
Rulemaking.''
    In addition, the Agency received more than 5,200 comments on the
ANPRM, including over 1,000 from CMV drivers. Commenters also included
trade associations and industry groups, law enforcement agencies,
safety advocacy groups, motor carriers, and governmental entities. The
majority of ANPRM commenters supported changes to the HOS rules. Of the
issues addressed in the ANPRM, most comments were addressed to the 30-
minute break and the sleeper-berth issues. Drivers and individuals
supported other issues raised in the ANPRM or petitions, especially
extending the short-haul duty period from 12 hours to 14 hours. Many
drivers and individual commenters were in favor of extending the
maximum driving window by 2 hours in the event of adverse driving
conditions. A few driver and individual commenters requested that the
definition of ``adverse driving conditions'' be changed or clarified,
to make understanding and compliance easier for users and enforcement
personnel. A large number of CMV drivers, trade associations, and
industry groups supported the elimination of the 30-minute break rule.
However, safety advocacy groups opposed changes to the rule due to the
lack of research on its safety impacts.
    Many commenters favored expanding the sleeper-berth options to 5/5,
6/4, or 7/3. In addition, they would like to see both qualifying
sleeper-berth periods stop the 14-hour driving window. Most of the
trade associations that commented on short-haul operations approved of
an expansion of the 12-hour driving window to 14 hours. Trade
associations, and other commenters were also in favor of expanding the
adverse driving condition provision to extend the duty period during
which driving is allowed.
    Generally, law enforcement and safety advocacy organizations
opposed changes to the current HOS rules. These comments often
referenced safety research identified in prior HOS rulemakings. The
relevant studies are discussed in the sections below.
    Most motor carriers that responded were in favor of all the
suggested changes in the ANPRM. Most of the elected officials supported
flexibility for drivers.

Other Comments to the ANPRM

    In addition to the four central topics covered by the ANPRM and the
two petitions, FMCSA received comments and suggestions related to other
aspects of the HOS rules.
    Driver Health Comments. A number of commenters critiqued the
current HOS rules, stating that the rules negatively impact their
health. However, safety advocacy groups stated that changes to existing
HOS would negatively impact health. The driver

sleep apnea group, Truckers for a Cause provided research by Dr. Mona
Shattell (3 studies cited in comments) on CMV driver mental health
issues that showed stress caused by the ``14-hour clock'' to be a large
cause and potential health issues. HOS changes which reduce this
documented stress inducer would reduce driver stress and resulting
health issues. They go on to add that fatigue research (Williamson
2001) has clearly shown that there is a fatigue impairment which
greatly increases with being awake more than 14 hours. This impairment
is equivalent to blood alcohol content (BAC) of .02% at 15 hours and
.04% at 16 hours. With .04% being legally intoxicated for a CMV driver
it is reasonable that HOS regulations should restrict driving beyond a
14 hour work day limit unless there has been reasonable restorative
rest. The American Academy of Sleep Medicine focuses almost exclusively
on the issue of fatigue--as it relates to driver health and some of the
proposed changes. According to AASM, ``these proposed changes would
occur in the setting of other common sleep disorders, such as sleep
apnea, shift work sleep disorder, or insufficient sleep, which increase
the risk of drowsy driving . . . . Given the large body of evidence
that sleepiness plays a significant role in crashes, we recommend
against the proposed relaxation of the present rules, in the best
interest of not only commercial drivers' health and safety, but also
public safety as a whole.'' The International Brotherhood of Teamsters
commented on the 12-hour short haul provision, stating that several
studies show that the majority of work-related injuries occurring among
truck drivers result from non-driving work activities. When researchers
further investigated these findings, they found that the types of
injuries experienced by truck drivers varied by industry sector but
were generally associated with falling from heights, trips, slips,
falls, and overexertion due to manual materials handling. Drivers who
are involved in short haul operations experienced occupational injuries
primarily while performing three activities: (1) Operating the truck;
(2) lifting/cranking; and (3) maneuvering into/out of truck cab . . . .
Short-haul drivers will experience increased fatigue as a result of
having to work an expanded number of hours and concurrently experience
more fatigue-related occupational injuries and crashes . . . .'' In
addition, researcher collected data on the driver's heart rates to
estimate metabolic output and determined that such drivers worked in a
job that required a high level of energy.'' FMCSA has considered these
comments, and, as discussed in the Health Impacts section later in this
document, proposes to find that the provisions of this NPRM would not
adversely affect driver health.
    Economic and Research Data, Surveys, and Studies Submitted to the
Docket. A number of research papers, surveys, and studies, along with
related data, were submitted to the docket. The relevant submissions,
including those made by OOIDA, the American Transportation Research
Institute (ATRI), and the Insurance Institute for Highway Safety
(IIHS), have been considered and are discussed in the draft RIA for
this NPRM, available in the docket. Other studies had been considered
in previous rulemakings, were out of scope for this rule, or had data
limitations.
    Scope of Rulemaking. A number of the commenters raised HOS issues
beyond the topics identified in the ANPRM. Many commenters believe
driver pay is too low for the responsibilities they hold and stated
that if drivers were paid more or compensated by the hour, there would
be less of a need for HOS regulations. Other commenters stated that
third parties such as shippers and receivers, who are not generally
subject to FMCSA regulations, pressure drivers to violate HOS rules or
create an environment where drivers are unable to take advantage of the
work time allowed.
    A number of commenters requested that FMCSA consider adopting the
Canadian HOS standards.\8\ These comments were either general or
focused on specific limits, rest breaks, and sleeper-berth provisions.
---------------------------------------------------------------------------

    \8\ A copy of the Canadian Commercial Vehicle Drivers Hours of
Service rules is available at https://laws-lois.justice.gc.ca/eng/regulations/SOR-2005-313/page-2.html#docCont (Accessed December 31,
2018). A single-page summary is available at https://www.cvse.ca/national_safety_code/pdf/HOS_Service_Rules.pdf (Accessed December
31, 2018).
---------------------------------------------------------------------------

VII. Discussion of the Proposed Rulemaking

A. Short-Haul Operations

Current Regulation
    Currently, under 49 CFR 395.1(e)(1), certain CMV drivers do not
have to prepare RODS, use an ELD, maintain supporting documents, or
take a 30-minute break after 8 hours of duty if they meet certain
conditions, including a return to their normal work reporting location
and release from work within 12 consecutive hours after their starting
time. Truck drivers operating under this provision are permitted a 12-
hour work day in which to drive up to 11 total hours. Passenger-carrier
drivers are allowed 10 hours of driving in a 12-hour workday. Under
this short-haul exception, drivers also must operate within a 100 air-
mile radius of their work reporting location. The motor carrier must
maintain time records reflecting certain information. Specifically, the
motor carrier that employs the driver and utilizes this exception must
maintain and retain for a period of 6 months accurate and true time
records showing: The time the driver reports for duty each day; the
total number of hours the driver is on duty each day; the time the
driver is released from duty each day; and the total time for the
preceding 7 days in accordance with 49 CFR 395.8(j)(2) for drivers used
for the first time or intermittently.
    Under 49 CFR 395.3(a)(2)-(3), other property-carrying CMV drivers
not utilizing the short-haul exception have a 14-hour window in which
to drive up to 11 hours. Unless otherwise excepted, however, these
drivers must maintain RODS, generally using an ELD. Drivers qualifying
for the 49 CFR 395.1(e)(1) exception have the option to use the 14- or
15-hour driving window applicable to property and passenger carriers,
respectively, under Sec. Sec.  395.3 or 395.5, to fulfill the needs of
the employer on a given day. However, drivers doing so would lose the
benefits of the short-haul exception and be required to prepare RODS
for those days.
Current Exemptions to the Short-Haul Operation Provision
    Among other things, section 5521 of the FAST Act requires that the
Agency allow drivers of ready-mixed concrete delivery trucks to return
to the normal work reporting location within 14 hours of coming on duty
rather than 12-hours of coming on duty. FMCSA implemented this
provision on July 22, 2016 (81 FR 47714). FMCSA also has granted
applications for exemptions, allowing an extension of the duty period
in the short-haul provision from 12 to 14 hours, to the following
entities: Waste Management Holdings, Inc., October 25, 2018 (83 FR
53940); American Concrete Pumping Association, November 1, 2018 (83 FR
54975); and National Asphalt Pavement Association, Inc., January 26,
2018 (83 FR 3864). Several additional groups have requested similar
exemptions, but FMCSA has not yet published final decisions.
Comments to the ANPRM
    A majority of commenters asserted that FMCSA should extend the duty

period for short-haul operations from 12 to 14 hours. However, other
commenters, including drivers, disagreed. Some commenters suggested
extending the air-mile radius of this provision to match the
requirements of the 150 air-mile exceptions in Sec. Sec.  395.1(e)(2)
(Operators of property-carrying CMVs not requiring a CDL) and 395.1(k)
(Agricultural operations).
    A number of commenters said that they use the short-haul exception
or would like to utilize it.\9\ They gave specific operational examples
under which drivers exceeded one or both of the limits infrequently,
and most described driving as a secondary job function for their
drivers. These commenters stated that operational complexity increased
due to drivers using different statuses. If the overall short-haul
provision were modified, many commenters who supported changing the
short-haul provisions believed they might not need other exemptions and
exceptions.
---------------------------------------------------------------------------

    \9\ The Association of General Contractors of America commented:
``Since many construction operations are local in nature, the short-
haul exemption has been helpful but limited. Expansion of the short
haul to 150 miles would significantly reduce the impact of HOS on
the construction industry. The short-haul exemption should allow for
an additional 2 hours of on-duty time. These additional 2 hours are
absolutely crucial due to the seasonal nature of construction, and
the fact that drivers in this industry are so frequently waiting at
a jobsite--which we classify as ``on duty not driving''.'' (https://www.regulations.gov/document?D=FMCSA-2018-0248-4947).
---------------------------------------------------------------------------

Today's Proposal
    This NPRM proposes extending the maximum allowable work day for
property-and passenger-carrying CMV drivers under the Sec.  395.1(e)(1)
short-haul exception from 12 to 14 hours to correspond with the 14-hour
period requirement for property drivers in Sec.  395.3(a)(2). Today's
proposal would also extend the existing distance restriction under this
provision from 100 air miles to 150 air miles to be consistent with the
radius requirement for the other short-haul exception under Sec.
395.1(e)(2). Truck drivers would continue to be limited to 11 hours of
driving time, and passenger carrier drivers to 10 hours of driving
time. All CMV drivers using the Sec.  395.1(e)(1) exception would need
to complete their work day within 14 hours of the beginning of the work
shift.\10\
---------------------------------------------------------------------------

    \10\ Currently, short-haul drivers can use the adverse driving
conditions provision under Sec.  395.1(b), and this provision would
continue to be available to drivers using the short-haul exception.
---------------------------------------------------------------------------

Safety Rationale
    Using data from the FMCSA Motor Carrier Management Information
System (MCMIS),\11\ the Agency analyzed concrete mixer crashes before
and after the FAST Act allowed ready-mix concrete operators up to 14
hours to return to their work reporting location under the short-haul
provision. A review of the MCMIS crash data found that extending the
short-haul exemption from 12 to 14 hours did not statistically increase
the share of concrete mixers involved in crashes. This evaluation is
discussed further in the draft RIA. Furthermore, the Agency emphasizes
that the changes to the short-haul exception proposed in today's notice
would allow neither additional drive time during the work day nor
driving after the 14th hour from the beginning of the work day.
---------------------------------------------------------------------------

    \11\ MCMIS is an information system that captures data from
field offices and through various sources. It is a source for FMCSA
inspection, crash, compliance review, safety audit, and registration
data.
---------------------------------------------------------------------------

    The extension of the air-mile radius by 50 air miles would allow
carriers to reach customers farther from the work reporting location
while maintaining eligibility for the short-haul exception. FMCSA
believes that extending the air-mile radius would not increase market
demand for services, and thus would not result in increased vehicle
miles traveled (VMT). FMCSA anticipates that if these drivers change
their routes resulting in an increase in VMT (e.g., an increase in
deliveries made per shift), that VMT would be shifted from other
drivers or from the next day. On any given day, a driver may see an
increase or decrease in VMT, but total VMT would not change. It could
also be the case that on days that required driving past the 12th work
hour, the driver was previously operating as a long-haul driver. Under
this rule, the same driver could work the same day (i.e., no change in
work hours or VMT for any driver), with the only change being
eligibility for the short-haul exception. Thus, more drivers or more
trips would now be eligible for the short-haul exception, and thus
excluded from the requirement to take a 30-minute break or prepare
daily RODS, potentially with an ELD. Carriers would have the
flexibility to meet existing and future market demands within the area
that could be serviced within a 14-hour duty day more efficiently
(i.e., not incurring the costs of preparing RODS and retaining
supporting documents for the days drivers did not satisfy the short-
haul limits) while maintaining eligibility for the short-haul
exception. Extending the air-mile radius and the work day would not
extend the maximum allowable driving time. Therefore, the Agency does
not anticipate any adverse impact on safety.
    The IIHS provided data it believes indicates interstate truck
drivers operating under the short-haul exception had a significantly
higher crash risk than those not using the exception. FMCSA reviewed
this study and found that it was based on a very small sample size,
which prevented the authors from estimating a matched-pair odds ratio
restricted to drivers operating under a short-haul exception, and was
not nationally representative. Further, the authors noted that other
related factors unobserved in the study may have led to this result.
For example, it is possible that older or more poorly maintained trucks
are used in local operations. The Agency relied on its own data and
analysis discussed earlier in this section, which shows that increasing
the duty day from 12 to 14 hours did not statistically increase the
share of concrete mixers involved in crashes. The Agency's analysis is
discussed in more detail in the RIA. The Agency invites comments on
this determination.
    In addressing today's proposed changes to the HOS rules, the agency
encourages motor carriers and other stakeholders to submit driver
record data supporting their comments in a manner that does not reveal
the identity of an individual driver.
Additional Questions
    FMCSA seeks additional information and data on the impacts of
expanding short-haul exemption provision, in part to assess its
potential costs and benefits. Specifically:
     How will this change impact motor carrier's ability to
enforce HOS rules? What enforcement difficulties may arise from
expanding both the time and distance requirements?
     Will drivers drive further or longer in the driving window
under the short haul exception? Would this be different then these
loads being hauled by drivers complying with the ELD requirements?
     Will the elimination of the 30-minute break requirement
for drivers that are potentially driving later in their duty period
impact safety?
     What cost savings are expected from not having to comply
with the ELD requirements?
    Additionally, some commenters to the ANPRM requested that drivers
using the short-haul exception be allowed to end the work shift at a
different location than the one from which they were dispatched. FMCSA
requests public comment about this request, including which segments of
the motor carrier industry would be impacted by this

potential change and whether this change would have an adverse effect
on safety, or lead to operational changes such as increased driving
time per trip or driving in the 12th and 13th hour after coming on-
duty.

B. Adverse Driving Conditions

Current Regulation
    Section 395.1(b)(1) allows 2 additional hours of driving time for
``adverse driving conditions,'' which is defined in Sec.  395.2 as
``snow, sleet, fog, other adverse weather conditions, a highway covered
with snow or ice, or unusual road and traffic conditions, none of which
were apparent on the basis of information known to the person
dispatching the run at the time it was begun.'' Although the rule
allows truck drivers up to 13 hours of driving time under adverse
conditions, instead of the normal 11 hours, it does not provide a
corresponding extension of the 14-hour driving window. Similarly, the
current rule allows drivers of passenger-carrying CMVs up to 12 hours
of driving time under adverse conditions without a corresponding
extension of the applicable duty period.
Comments to the ANPRM
    Most commenters generally supported extending the adverse driving
conditions provision to allow for a longer duty period. Some of these
commenters noted that the additional time could be used to enable
drivers to find a safe place to park. However, some commenters objected
to a change to the exception. One commenter stated that due to the
advancements of technology, there is no reason to replace proper trip
planning with a 2-hour extension of the 14-hour driving window. Another
commenter said that extending the 14-hour driving window would allow
operators to be driving at a time in the drivers' work days when crash
risks increase dramatically.
    Frequency of Use. Some commenters said that they never used the
adverse driving conditions exception, while others reported wide
variances in the frequency of their use. A trade group provided survey
results indicating an average use of the exception of 1.5 times a
month.\12\ A commenter said drivers should not be allowed to use this
exception more than twice in a 7-day period.
---------------------------------------------------------------------------

    \12\ Comment from OOIDA with this survey is available at:
https://www.regulations.gov/document?D=FMCSA-2018-0248-3347.
---------------------------------------------------------------------------

    Clarify Definition. Many commenters were confused by the current
definition and requested clarification, including how often the
provision may be used. Several specifically asked about the
definition's use of the word ``apparent.'' Some commenters asked that
provisions be expanded to include ``foreseen'' conditions or requested
that ``unforeseen'' be stricken from the definition. Some commenters
pointed out that weather conditions would be known by the dispatcher
before the start of a trip, given today's technology. However, these
commenters still believed the provision should exist. Many commenters
stated that detainment by a third party, such as a shipper or receiver,
during loading and unloading should be considered an adverse condition.
    Commenters also requested that the definition be changed to require
``proof'' or that the use of this status be ``verifiable.'' Commenters
asked for a clear definition that would eliminate inconsistent
enforcement practices. Commenters also stated that training drivers in
the use of the regulations should be based on a clarified definition.
Some commenters requested that specific weather conditions be mentioned
in the definition, while others wanted it to also apply to a variety of
road-work conditions.
    Some commenters requested that determination of adverse driving
conditions should be a decision of the driver rather than the
dispatcher.
    Passenger Carriers. Some commenters requested that ``adverse
passenger conditions'' be taken into consideration in the definition,
and requested that passenger carriers be allowed an extension of the
10-hour drive time due to ``adverse passenger conditions.''
Today's Proposal
    Today's proposal would allow a driver up to a 16-hour driving
window (for property carriers) within which to complete up to 13 hours
of driving, or a 17-hour duty period (for passenger carriers) within
which to complete up to 12 hours of driving, if the driver encounters
adverse driving conditions.
Safety Rationale
    While the Agency is not aware of any research that is specific to
the impact of adverse conditions on crash risk, the flexibility
provided in the proposal would give drivers greater latitude to respond
to adverse driving conditions by removing the existing penalty that
``shortens'' the driver's duty day if he or she responds cautiously to
an adverse condition in a manner that takes up more duty time. FMCSA
expects the proposed increase to duty time during adverse driving
conditions to incentivize drivers facing these conditions to either
travel at a reduced speed due to road conditions, which is likely to
minimize the risk of crashes, or to suspend CMV operations in order to
wait for the adverse conditions to abate. Further, the Agency stresses
that this proposal would not increase available driving time beyond
what is currently allowed by the exception. FMCSA does not anticipate
that changes to the adverse weather condition provision would lead to
increased VMT in most situations, but might shift when the miles are
driven. This provision is intended to allow you to drive your
anticipated trip within 1 shift (instead of extending it to 2) when
adverse weather would decrease your VMT efficiency, or make road travel
unsafe for a period of up to 2 hours. It is not intended to allow for
additional trips or increased freight movement. FMCSA does not
anticipate that motor carriers would be able to schedule additional
freight movement because adverse conditions can't be planned for in
advance.
    FMCSA notes that the Federal Aviation Administration (FAA) and the
Federal Railroad Administration (FRA) both allow duty period extensions
in similar circumstances. FAA allows a 2-hour flight duty period
extension for unforeseen operational circumstances (14 CFR
117.19(a)(1)) and FRA allows a 4-hour duty period extension for
emergencies or work related to emergencies (49 CFR 228.405(c)). FRA's
hours of service laws also do not apply to circumstances involving
``Acts of God'' (49 U.S.C. 21102(a)(3)).
    The ``adverse passenger conditions'' mentioned by commenters from
the bus industry do not involve driving conditions external to the
vehicle, such as snow, sleet, fog, and the other conditions listed in
the definition in Sec.  395.2. Adverse passenger conditions are not
within the scope of this rulemaking.
    In addressing today's proposed changes to the HOS rules, the agency
encourages motor carriers and other stakeholders to submit driver
record data supporting their comments in a manner that does not reveal
the identity of an individual driver.
Additional Questions
    FMCSA seeks additional information and data on the impacts of
changing the adverse conditions provision, in part to assess its
potential costs and benefits. Specifically:
     Will this change cause drivers to travel further in
adverse conditions?
     Will this change drivers' behavior when encountering
adverse conditions? How so?

     Understanding adverse conditions cannot be predicted, will
drivers utilize this provision more often after this change?
    Additionally, FMCSA requests public comment about potential
modifications to the definition of ``adverse driving conditions.''
Specifically, the Agency requests input on the suggestion that
knowledge of the existence of adverse conditions should rest with the
driver rather than the dispatcher. Alternatively, should the
requirement for lack of advance knowledge at the time of dispatch be
eliminated? Should the current definition of ``adverse driving
conditions'' be modified to address other circumstances?

C. 30-Minute Break

Current Regulation
    Under 49 CFR 395.3(a)(3)(ii), except for drivers who qualify for
either short-haul exception under Sec.  395.1(e)(1) or (2), driving is
not permitted if more than 8 hours have passed since the end of the
driver's last off-duty or sleeper-berth period of at least 30
minutes.\13\
---------------------------------------------------------------------------

    \13\ The 30-minute rule does not apply to drivers who operate
CMVs within a 100 air-mile radius of their normal work reporting
location and return to that location within 12 hours, as authorized
by Sec.  395.1(e)(1), or to drivers who do not need a CDL, operate
within a 150 air-mile radius of their work reporting location, and
meet certain other requirements, as authorized by Sec.  395.1(e)(2).
---------------------------------------------------------------------------

Comments to the ANPRM
    Most commenters (including many drivers) supported removing the 30-
minute break, citing a number of reasons, including stress on the
driver and a perceived increase in crash risk. Many commenters stated
that drivers already take sufficient breaks from driving, and that the
additional break requirement is unsafe or unnecessary. Some commenters,
including safety organizations, expressed support for the 30-minute
break requirement, stating that rest breaks are necessary and should
remain as currently required. Others stated that no other viable
alternative could match the safety benefits achieved by an off-duty,
30-minute break.
    Logistics/Time Taken. Some commenters recommended replacing the 30-
minute provision with a rule requiring two breaks or similar expansions
of break time. Drivers liked this idea if they felt it was more in-line
with their existing operations, or if they thought it would be more
advantageous. There was no data provided to show it increased safety.
Commenters were discussing the current requirement, which mandates a
30-minute off-duty break that does not pause the duty clock. A
commenter asked that the rule be revised to provide that the break may
be taken any time during the duty period and that a second break would
not be required if the first one is taken early in the duty period.
Some commenters suggested allowing breaks to be split into smaller
segments, such as 10 minutes. Others stated that the break should be
tied to changes to the sleeper-berth provision.
    Total On-Duty Time. Many commenters requested that on-duty non-
driving time, e.g., fueling or loading and unloading, be counted
towards the break time. A number of commenters also requested that
breaks stop the 14-hour on-duty clock. Others said that only breaks
over a certain length and spent in a sleeper berth should stop the 14-
hour on-duty clock.
    In Combination with the Split Sleeper-Berth Provisions. Several
commenters recommended that modifications to the break be tied to
sleeper-berth changes. Others suggested that breaks be reviewed in
conjunction with the proposed Split Sleeper-Berth Pilot Program.\14\
---------------------------------------------------------------------------

    \14\ The Split Sleeper-Berth Pilot Program mentioned in comments
has been canceled. See the discussion below.
---------------------------------------------------------------------------

    Removal of the 30-Minute Break for All Drivers. Since short-haul
drivers are exempt from the 30-minute break requirement, several
commenters believed that it ought to be eliminated for all drivers.
    Incidental Drivers. Multiple commenters represented industries or
operations for which driving is incidental to the principal job of the
driver. A number suggested that their operations be exempt from the 30-
minute break requirement.
Today's Proposal
    FMCSA proposes to modify the existing 30-minute break requirement
with a prohibition on driving for more than 8 hours without at least
one 30-minute change in duty status. This would allow 30 minutes of on-
duty, not driving time, off-duty time, or sleeper berth time to qualify
as a break. Many drivers have interruptions of their driving time
during normal business operations, such as loading or unloading a
truck, completing paperwork, or stopping for fuel. Under the current
rules, the break is required to be off-duty time during which no work,
including paperwork, may be performed and is triggered after 8 hours,
regardless of driving time. The flexibility provided in this proposal
would allow these normal breaks from driving (i.e., ``time on task'' in
the research literature) to count as an interruption of the 8 hours of
driving status, provided the break lasts at least 30 minutes.
Additionally, these proposed changes to the 30-minute break provision
proposed by today's rule would not allow an increase in maximum driving
time during the work shift or driving after the 14th hour from the
beginning of the work shift.
Safety Rationale
    In today's NPRM, the Agency is reconsidering the value of off-duty
breaks relative to on-duty breaks. Based on comments received, the
Agency has taken another look at the Blanco, et al. (2011),\15\ study
to determine the applicability of its findings to the 30-minute break
requirement.
---------------------------------------------------------------------------

    \15\ Blanco, M., Hanowski, R., Olson, R., Morgan, J., Soccolich,
S., Wu, S.C., & Guo, F. (2011) ``The Impact of Driving, Non-Driving
Work, and Rest Breaks on Driving Performance in Commercial Motor
Vehicle Operations.'' Available in this rulemaking docket.
---------------------------------------------------------------------------

    While Blanco found that off-duty breaks resulted in a greater
decrease in subsequent safety critical events (SCE) than on-duty
breaks, many of the breaks were between 30 and 59 minutes in length,
casting doubt on the findings' applicability to a strict 30-minute
break.\16\ Furthermore, the off-duty breaks in the Blanco study were
voluntary and many were taken in the sleeper berth. Both of these
elements deviate from the current environment where a rigid 30-minute
rest break requirement forces drivers to go off-duty regardless of
whether they feel fatigued or have space to rest. Thus, the study
participants could have experienced off-duty breaks that were more
beneficial in nature than the off-duty breaks taken as a result of the
2011 final rule, as the study participants likely opted to take off-
duty breaks as a countermeasure to fatigue.
---------------------------------------------------------------------------

    \16\ In reviewing the Blanco study, it was determined that there
were 3,171 breaks of 30 minutes or longer used in the analysis. It
should be noted that there were relatively few off-duty breaks--only
211 off-duty breaks, which was less than 6.7 percent of the total
number of breaks.
---------------------------------------------------------------------------

    Lastly, Blanco categorized breaks from driving into four groups;
Rest During Duty Period (Type 1), Work During Duty Period (Type 2),
Rest During Duty Period/Off Duty (Type 3), and Off-Duty (Type 4). Break
Type 1 and Type 4 include resting activities such as eating and
sleeping, and break Type 3 is a combination of Type 1 and Type 4 breaks
such that it also includes rest activities. The Blanco study collected
data from November 2005 to March 2007, when the regulatory guidance
required that any time spent in the vehicle cab (with the exception of
the sleeper berth) was considered on-duty

time. This would include in-cab activities that after 2011 could be
considered off-duty, such as eating or taking naps. As such, while the
Blanco study analyzes the reduction in SCEs for Type 1 and Type 4
breaks separately, under the present regulatory structure they would
likely both be considered off-duty breaks and thus would fit into Type
4; Off-Duty Break. Using the published data in the Blanco study, FMCSA
recalculated the magnitude of SCE reduction for an off-duty break using
the break frequency published in the study for break Type 1, Type 3,
and Type 4. This calculation resulted in a 33 percent SCE reduction,
which is lower than the 51 percent for Type 4 breaks alone, and very
close to the 30 percent reduction for Break Type 2.\17\ FMCSA
acknowledges that this result is not precise due to the limitations of
the available data. Multiple break types could make up a single break,
such that the summation of the break frequency by type can be more than
the total number of breaks, and the magnitude of SCE reduction would
likely be slightly different than what was calculated above. What is
clear is that the magnitude of SCE reduction that Blanco attributed to
off-duty breaks is larger than the SCE reduction that would be
attributable to the off-duty 30-minute breaks required under the 2011
HOS rule (those that would be made up of Type 1, Type 3, Type 4 breaks
as defined by Blanco). In light of this recent review, it appears that
FMCSA placed too great a value on off-duty breaks, compared to other
types of breaks described above. What seems to be consistent in the
Blanco study was that breaks of any type reduced SCEs. Therefore, the
Agency proposes to change the break provision to allow the driver to
take a break while on duty but not driving, rather than requiring the
time to be off duty.
---------------------------------------------------------------------------

    \17\ It is FMCSA's position that the calculated 3% difference in
SCE reduction should not be considered to correspond directly to a
difference in crash rates. This is because SCEs are a much more
common event than crashes, which results in the likelihood that a
30% reduction and a 33% reduction in SCEs may have the same impact
on overall crash rates.
---------------------------------------------------------------------------

    Further, the Agency is proposing to tie the break requirement to
eight hours of driving time rather than eight consecutive hours since
the driver's last off-duty or sleeper berth period of at least 30
minutes. Based on the discussion above, FMCSA believes that on-duty
breaks can have essentially the same SCE reduction as off-duty breaks.
Tying the break requirement to driving time is in line with this
finding. Many commenters to the ANPRM stated that the current 30-minute
break provision requires them to go off duty after eight hours of on-
duty time, even though they may not have driven for a long period of
time when the rule requires a stop. FMCSA required the 30-minute break
in the 2011 HOS rule based on literature that found a break from the
driving task would lead to a reduction in SCEs in the hour after a
break was taken. If drivers' schedules include time periods of at least
30-minutes in an on-duty/non-driving status, they are receiving the
intended benefits of the current requirement. FMCSA continues to
believe that a break from driving is important for safety, but
acknowledges that the changes in today's proposed rule would be less
burdensome for carriers and drivers while achieving the same goal--a
break from the driving task. These proposed changes may result in a
decrease in off-duty breaks, but FMCSA anticipates that any potential
effect on fatigue from fewer off-duty breaks will be offset or
minimized by continuing to require a break from the driving task.
Further, as explained below, this proposal would allow drivers to take
an off-duty break when they believe it would be most helpful at
preventing them from driving while fatigued, as opposed to requiring a
break regardless of the warning signs of fatigue, without impacting
their 14-hour driving window. As an example, consider a driver who
under the current requirements spends two hours in on-duty/not driving
status to start his or her duty period subsequently drives for six
hours, takes the required 30-minute break, and then drives for five
more hours before reaching the 11-hour limit. All other things equal,
the proposed changes would allow this driver to take the break up to
two hours later than under the current requirements, such that the
driver's duty period could consist of an initial two hours in on-duty/
not driving status followed by eight hours of driving, a 30-minute
break, and three hours of driving before reaching the 11-hour limit.
Both under the current requirements and under the proposed rule, this
hypothetical driver receives the benefits of a break from the driving
task. However, deferral of the break results in the driver driving
later into the day before taking a required break, but driving fewer
hours after it is taken. The Agency cannot say how this temporal shift
in the break would alter the frequency of SCEs before the required
break is taken as compared to driving fewer hours after the break. The
agency requests comments on how to estimate the change in SCEs from
this temporal shift in the 30 minute break. Further, the Agency notes
that for a driver who immediately begins driving at the start of his or
her duty period, he or she may drive eight continuous hours before a
break is required; this is true under the current requirements and
would remain so under the proposed rule.
    FMCSA anticipates that the same level of safety can be achieved by
(1) allowing the driver to take a break while on-duty but not driving,
rather than requiring the time to be off-duty, and (2) starting the 8-
hour period when the CMV operator begins driving. The changes to the
30-minute break provision proposed by today's rule do not involve any
increase to the 11-hour driving limit in place today.
    Those drivers that work more than 8 hours but do not drive more
than 8 hours may increase their VMT efficiency. These drivers are
currently required to take a 30-minute off-duty break. Under the
proposal, their on-duty/non-driving time would be considered a break
from driving. They would be able to increase their efficiency by a
reduction in off-duty time of up-to 30 minutes, but this would only be
the case if off-duty breaks are not part of their regular operating
schedule, and taken solely as a result of the 30-minute break
requirement.
    Drivers that drive for 8 consecutive hours may see an increase in
VMT efficiency. This would occur if their day already has a 30-minute
on-duty period (e.g., waiting at a loading dock) that would occur
regardless of this rule. This on-duty period would meet the break
requirements of the proposed rule. These drivers may also see their VMT
unchanged. This would occur if their day does not contain a 30-minute
on-duty period that could count towards the proposed break requirement.
In this instance, they would need to find a spot to park and take a
break from driving under both today's requirements and the proposed
requirements.
    Furthermore, the Agency has reviewed several requests for exemption
from the current 30-minute break requirement. In certain cases, the
Agency has granted limited exemptions after determining, following
notice and comment in the Federal Register, that the exemption would
not result in any decrease in safety.\18\ For example, in

certain cases the Agency has allowed the break requirement to be
satisfied with on-duty not-driving time. All exemptions require a
carrier to report recordable crashes related to the exemption to the
Agency. However, crashes may involve multiple factors, and might not be
directly attributable to the exemption.
---------------------------------------------------------------------------

    \18\ For more information about each of the exemptions, and the
specific conditions under which they were granted, please review the
following notices: the American Trucking Associations, granted
August 21, 2015 (80 FR 50912); the Department of Energy, granted
June 22, 2015 (80 FR 35703); the National Asphalt Pavement
Association, granted January 26, 2018 (83 FR 3864); the National
Tank Truck Carriers, granted April 9, 2018 (83 FR 15221); R&R
Transportation, granted October 2, 2015 (80 FR 59848); the
Specialized Carriers & Rigging Association, granted November 1, 2016
(81 FR 75727); the Department of Defense (DOD) Surface Deployment &
Distribution Command (SDDC), granted October 28, 2013 (78 FR 64265);
the American Concrete Pumping Association, granted March 21, 2017
(82 FR 14595); the National Pork Producers Council, granted June 11,
2014 (79 FR 33634); the California Farm Bureau Federation for bee
transporters, granted June 19, 2015 (80 FR 35425); and the American
Concrete Pavement Association, granted February 6, 2019 (84 FR
2307).
---------------------------------------------------------------------------

    FMCSA was able to analyze some MCMIS crash data to provide insight
into the relationship between crash risk and one exemption in
particular. FMCSA granted an exemption on August 21, 2015 (80 FR
50912), allowing operators of vehicles transporting certain hazardous
materials (HM) to satisfy the 30-minute break requirement using
attending time. This exemption was necessary because FMCSA regulations
prohibit operators of vehicles transporting certain HM from leaving
their vehicles unattended (49 CFR 397.5), and thus, they could not
satisfy the off-duty break requirement while maintaining compliance
with the requirement to attend the vehicle.
    MCMIS contains counts of crashes where a vehicle with an HM placard
was present, as well as crash counts of all large truck crashes. Using
these data points, FMCSA examined the total number of crashes where a
vehicle with an HM placard was present for the 2 years before and after
the exemption went into effect. From August 22, 2013, through August
21, 2015, there were 7,217 crashes where vehicles with an HM placard
were present, or 2.616 percent of the total crashes involving large
trucks (7,217 HM placard present/275,915 large truck crashes). From
August 22, 2015 through August 21, 2017 there were 7,277 crashes where
vehicles with an HM placard were present, or 2.419 percent of the total
crashes involving large trucks (7,277 HM placard present/300,775 large
truck crashes). This analysis has some limitations in that not all
vehicles transporting HM are large trucks and that crashes cannot be
attributed to the exemption. However, the slight decrease in the HM
placard share of total large truck crashes may suggest that the
exemption allowing attending time to satisfy the break requirement did
not increase crash risk for operators of vehicles transporting certain
HM.
    In the years that FMCSA has spent administering these exemptions,
FMCSA has not discovered evidence of adverse safety impacts that would
require withdrawal of any 30-minute exemption. However, in other cases,
FMCSA has denied requests for blanket exemptions because the applicants
were unable to provide an adequate alternative to, or sufficient
information to support relief from, the 30-minute break that meets the
statutory criteria and demonstrates an equivalent level of safety.\19\
---------------------------------------------------------------------------

    \19\ For more information about these denials, please review the
following information: the Payne & Dolan/Zenith Tech/Northeast
Asphalt application, denied June 24, 2015 (80 FR 36397); the
Commercial Vehicle Safety Alliance petition, denied August 9, 2016
(T.F. Scott Darling, Administrator, FMCSA, in a letter denying a
petition for rulemaking dated October 28, 2015, to Colin Mooney,
Executive Director, Commercial Vehicle Safety Alliance, August 8,
2016. Available at: https://www.fmcsa.dot.gov/petitions); and the
Transco/McLane application, denied July 18, 2017 (82 FR 32918).
---------------------------------------------------------------------------

    FMCSA anticipates that an on-duty break from driving would not
adversely affect safety relative to the current requirements as
discussed in connection with the Blanco study, above, but requests
additional data on the safety impacts of this proposal.
    In addressing today's proposed changes to the HOS rules, the agency
encourages motor carriers and other stakeholders to submit driver
record data supporting their comments in a manner that does not reveal
the identity of an individual driver.
Additional Questions
    FMCSA seeks additional information and data on the impacts of
changing the 30 minute break provision, in part to better assess its
potential costs and benefits. Specifically:
     Will you take fewer total breaks from driving with this
change? How many and when would those breaks have occurred during your
route?
     Do you expect to still take a 30 minute break if you have
less than 8 hours of drive time? If so, would you take that break on-
duty or off-duty?
     If you no longer need to take a 30 minute break, how do
you expect to spend this additional time?
     How will this provision change your scheduling and
planning?
     Do you expect to drive more miles or hours based on this
change? Do you expect to be able to complete additional ``runs''?
    Additionally, the Agency acknowledges that many commenters
specifically asked that the 30-minute break requirement be eliminated,
and has considered that as an alternative under E.O. 12866. However,
without the benefit of further information in this regard, it would not
be appropriate to entirely eliminate the rule. Given that the
flexibility allowed in today's proposal would alleviate many of the
concerns expressed by commenters, FMCSA seeks further information on
the effect of eliminating the break requirement altogether.
Specifically--
    (1) What would be the safety impact of eliminating the required
break, potentially allowing up to 11 consecutive hours of driving?
    (2) What has been the cost to your company of complying with the
30-minute break rule since the compliance date for that rule, July 1,
2013?
    (3) How often do work shifts require an individual to drive more
than 8 hours without at least a 30-minute change in duty status?
    (4) Would eliminating the break requirement result in greater cost
savings than the current proposal? If so, what would be the amount of
these cost savings?

D. Sleeper Berth

History
    The 2003 HOS rule (68 FR 22456, Apr. 28, 2003, amended by 68 FR
56208, Sept. 30, 2003), introduced the concept of a fixed 14-hour
driving window to help limit potential overly-long periods of
wakefulness and duty hours that could lead to fatigue-related crashes.
    The 2005 HOS final rule (70 FR 49978, Aug. 25, 2005) changed the
sleeper-berth provisions to require the equivalent of 10 hours off duty
to be taken in one 8-hour sleeper-berth period, combined with another
2-hour period, either in the sleeper berth, off duty, or a combination
of the two. This established one 8-hour period in which to obtain
restorative rest, yet provided the driver flexibility in use of the
shorter period. Although comments were closely divided on the issue and
research related to the length of the longer rest period was not
definitive, the Agency limited drivers to an 8/2 spilt option. Drivers,
however, have often objected to 8 hours in the sleeper berth, the lack
of flexibility allowed by the sleeper-berth provisions, and 14-hour
rule in general.
Current Regulation
    Current HOS rules allow a sleeper-berth user to divide the minimum
10 hours off duty, which are otherwise required to be consecutive, into
two separate periods. Drivers who use

sleeper berths may take at least 8 consecutive hours of the required
10-hour off-duty period in the sleeper berth. In addition, the driver
using the sleeper-berth exception must take a separate (earlier or
later) period of at least 2 hours off duty, which may be in the sleeper
berth if desired. It does not matter which rest period is taken first.
Comments to the ANPRM
    Many commenters to the ANPRM requested increased flexibility in the
sleeper-berth provisions. Some suggested reverting to the pre-2005
split sleeper-berth provisions, which allowed qualifying hourly splits
of 7/3, 6/4, or 5/5.\20\ Some drivers suggested that the longer period
be not less than 7 hours, because they suspected that motor carriers
might require them to take the shortest rest period, regardless of how
the drivers felt. However, several commenters stated that team drivers
should be allowed to take advantage of additional flexibility, such as
a 5/5 split. Safety advocates did not believe the data supported any
changes to the existing sleeper-berth provisions.
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    \20\ Before the August 25, 2005 revisions of Sec.  395.1(g),
drivers of property-carrying CMVs were allowed to split sleeper-
berth time into any two periods, as long as neither one was less
than 2 hours, subject to certain restrictions.
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    One of the most common concerns raised by CMV drivers has been
that, under the current HOS rules, they do not have the flexibility to
rest when they are tired. Some commenters suggested that sleeper-berth
time splits be allowed to vary from day to day, so long as drivers
accumulated a total of at least 8 hours a day in the berth. Other
commenters suggested that at least 8 hours in the berth should be
logged for every 24-hour period, and once 10 hours are accumulated, the
on-duty clock should be restarted. One commenter recommended
eliminating the split sleeper-berth provision and just allowing ``off-
duty'' time to stop the 14-hour clock. Some drivers stated that
increased flexibility in split options would allow carriers to coerce
drivers to operate when they would prefer not to do so. The perception
from these commenters was that the dispatcher would manipulate the
hours to maximize productivity.
    Commenters from multiple segments of the motor carrier industry
stated that sleeper-berth options currently do not suit their specific
needs, and that expanded options would assist their operations.
Commenters stated that parking would be easier if drivers had more
staggered sleeping times and used rest stops at different times.
However, some commenters suggested retaining the current standard, a
sleeper-berth period of at least 8 hours.
Safety Rationale
    There is an extensive body of research suggesting that split-sleep
schedules may improve safety and productivity as compared to
consolidated daytime sleep. Mollicone, et al. (2007) \21\ conducted a
laboratory study of 93 healthy adult subjects to investigate
physiological sleep obtained in a range of restricted sleep schedules.
Eighteen different conditions with restricted nocturnal anchor sleep,
with and without diurnal naps, were examined. The study found that
``split sleep schedules are feasible and can be used to enhance the
flexibility of sleep/work schedules involving restricted nocturnal
sleep due to scheduling.'' The researchers concluded that the results
are generally applicable to any continuous industrial operation that
involves sleep restriction, night operations, and shift work.
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    \21\ Mollicone, D.J., Van Dongen, H.P.A., Dinges, D.F. (2007)
``Optimizing Sleep/Wake Schedules in Space: Sleep During Chronic
Nocturnal Sleep Restriction With and Without Diurnal Naps,'' Acta
Astronautica, 60 (2007) 354-361. Available in this rulemaking
docket.
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    Belenky, et al. (2012) \22\ conducted a laboratory study on 53
healthy participants, making a between-group comparison of nighttime, 5
hour/5 hour split, or daytime sleep across a 5-day simulated workweek.
The effect of the three sleep conditions was measured by
polysomnography, Psychomotor Vigilance Task, high fidelity driving
simulator, Digit Symbol Substitution Test, and subjective state, as
well as the long-term health-related biomedical measurements of blood
glucose, IL-6, leptin, testosterone, and blood pressure. In comparison
to consolidated nighttime sleep or split sleep, participants in the
daytime sleep condition slept less and reported (on a subjective
sleepiness scale) that they felt sleepier. With respect to total sleep
time and sleepiness, the findings of this 2012 study suggest that split
sleep is preferable to consolidated daytime sleep which is allowed
under the current regulations.
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    \22\ Belenky, G., Jackson, M.L., Tompkins, L., Satterfield, B.,
& Bender, A. (2012) ``Investigation of the Effects of Split Sleep
Schedules on Commercial Vehicle Driver Safety and Health,''
Washington, DC: FMCSA. Available in the docket for this rulemaking.
---------------------------------------------------------------------------

    Short, et al. (2015) \23\ conducted a systematic review of the
sleep, sleepiness, and performance implications of limited wake shift
work schedules. They identified 20 independent studies, including 5
laboratory and 17 field-based studies focused on maritime watch
keepers, ship bridge officers, and long-haul train drivers. Findings
indicate that limited wake shift work schedules were associated with
better sleep and lower sleepiness in the case of (1) shorter time-at-
work, (2) more frequent rest breaks, (3) shifts that start and end at
the same clock time every 24 hours, and (4) work shifts commencing in
the daytime (as opposed to night).
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    \23\ Short, M.A., Agostini, A., Lushington, K., & Dorrian, J.
(2015) ``A Systematic Review of the Sleep, Sleepiness, and
Performance Implications of Limited Wake Shift Work Schedules,''
Scandinavian Journal of Work, Environment and Health, 41(5):425440.
Available at: https://www.ncbi.nlm.nih.gov/pubmed/26103467.
(Accessed January 4, 2019).
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    Soccolich, et al. (2015) \24\ analyzed data that had been
naturalistically collected during a separate study to compare driver
usage of three separate restart methods under the 2005 HOS regulations:
10 consecutive hours off duty, 34 consecutive hours off duty, or the
split sleeper berth provision, which requires a single sleeper berth
period of at least 8 hours. The study also examined the relationship
between the driver's choice of restart method and that driver's safety
performance. The drivers chose which restart method worked best for
their schedule and their preference, and they were free to use any
restart period at any time, as long as they complied with the current
HOS regulations. Safety performance was determined by comparing safety
critical events with baseline data for each driver during the shift
following their chosen restart method. After controlling for individual
driver differences, Soccolich, et al. found that safety performance was
comparable (i.e., not significantly different) between drivers who used
the sleeper berth provision and drivers who chose either the 10- or 34-
hour restart method.
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    \24\ Soccolich, S., Hanowski, R., & Blanco M. (2015). Evaluating
the Sleeper Berth Provision: Investigating Usage Characteristics and
Safety-Critical Event Involvement. (Report No. 17-UI-046). Available
at: https://vtechworks.lib.vt.edu/handle/10919/73954 (accessed June
20, 2019).
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    The above research highlights the value of split-sleep scenarios in
combating driver fatigue, but does not directly speak to the changes
proposed in this rule--allowing a 7/3 ``split'' option, and not
counting either rest period in the calculation of the 14-hour ``driving
window.'' Under the 2003 HOS rule, which initially established the
concept of the 14-hour driving window, drivers were permitted to
accumulate the minimum off-duty period of 10 consecutive hours in four
separate ways: (1) A minimum of 10 consecutive hours off duty; (2) a
minimum of 10

consecutive hours in a sleeper berth; (3) by combining consecutive
hours in the sleeper berth and off-duty time that total 10 hours; and
(4) by combining two separate sleeper-berth rest periods totaling at
least 10 hours, provided that neither period is less than 2 hours. The
fourth option was the split sleeper-berth option at the time, which
allowed drivers to split their sleeper berth time in any combination
(such as 4/6; 5/5) as long as each period was at least 2 hours, and
totaling a minimum of 10 hours. The rule allowed these periods to be
excluded from the calculation of allowable on-duty and driving time.
This approach resulted in concerns that the 2005 HOS rule intended to
alleviate. The primary issue was the ability of drivers to split their
rest periods into segments that did not provide for an adequate rest
period, such as the 5/5 split. The 2005 rule resulted in more clarity
by relying on the fixed 14-hour ``driving window'' under which only a
rest period of at least 8 hours in the sleeper berth would not count
against the 14-hour driving window. Although comments were closely
divided on the issue and research related to the length of the longer
rest period was not definitive, the Agency limited drivers to an 8/2
spilt option. In developing today's proposal, the Agency reviewed
available research regarding the sleeper berth exception that has been
in place since 2005 to determine if the intention of the regulation--an
adequate longer rest period--can be achieved while providing additional
flexibility.
    Research conducted prior to 2003 found that commercial drivers were
getting 5.18 hours of sleep per night, on average (Mitler, et al.
(1997)).\25\ In 2003, FMCSA revised the HOS regulations to provide
drivers with more opportunities for sleep. Research completed after
2003 found an increase in sleep for drivers following the
implementation of the 2003 HOS regulations. Hanowski, et al.
(2007),\26\ conducted a naturalistic driving study with 73 drivers,
collecting and analyzing sleep actigraphy data to determine overall
sleep quantity. The study found that commercial drivers were getting
more sleep under the revised HOS regulations, with an average of 6.15
hours of sleep per 24-hour period (compared to the average of 5.18
hours per night reported by Mitler, et al. in 1997).
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    \25\ Mitler, M.M., Miller, J.C., Lipsitz, J.J., Walsh, J.K.,
Wylie, C.D. (1997) ``The Sleep of Long-Haul Truck Drivers,'' New
England Journal of Medicine, 337, 755-761. Available in the docket
for this rulemaking.
    \26\ Hanowski, R.J., Hickman, J., Fumero, M.C., Olson, R.L.,
Dingus, T.A. (2007) ``The Sleep of Commercial Vehicle Drivers Under
the 2003 Hours-of-Service Regulations,'' Accident; Analysis and
Prevention, 39(6), 1140-5. Available in the docket for this
rulemaking.
---------------------------------------------------------------------------

    Van Dongen and Mollicone (2013) \27\ conducted a naturalistic
driving study of 106 CMV drivers whose schedules included the HOS
restart provision. The study found that drivers obtained between 6.0
and 6.2 hours of sleep (on average) per 24 hours during duty cycles, as
measured by wrist-worn actigraphy devices.
---------------------------------------------------------------------------

    \27\ Van Dongen, H.P.A. & Mollicone, D.J. (2013) ``Field Study
on the Efficacy of the New Restart Provision for Hours of Service,''
(FMCSA-RRR-13-058). Washington, DC: FMCSA. Available in the docket
for this rulemaking.
---------------------------------------------------------------------------

    Dinges, et al. (2017),\28\ conducted a naturalistic driving study
to evaluate the operational, safety, fatigue, and health impacts of the
HOS restart provisions. A total of 235 CMV drivers, representative of
the industry, contributed data while working their normal schedules,
with 181 drivers completing all 5 months of the study. Drivers' sleep
times were monitored with wrist-worn actigraphy devices. The study
found that drivers obtained, on average, approximately 6.5 hours of
sleep per day during duty periods.
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    \28\ Dinges, D.F., Maislin, G., Hanowski, R.J., Mollicone, D.J.,
Hickman, J.S., Maislin, D., Kan, K., Hammond, R.L., Soccolich, S.A.,
Moeller, D.D., & Trentalange, M. (2017) ``Commercial Motor Vehicle
(CMV) Driver Restart Study: Final Report,'' (FMCSA-RRR-15-011).
Washington, DC: FMCSA. Available in the docket for this rulemaking.
---------------------------------------------------------------------------

    Finally, Sieber, et al. (2014),\29\ conducted a survey of 1,670
long-haul truck drivers at 32 truck stops across the 48 contiguous
United States. The research team used the responses to compute
prevalence estimates for self-reported health conditions and risk
factors. Drivers were asked to report how many hours they slept per
night, on average; researchers compared drivers' self-reported sleep
durations to those reported by sampled working adults in the 2010
National Health Interview Survey (NHIS).\30\ The National Institute of
Occupational Safety and Health study found that:
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    \29\ Sieber, K.W., Robinson, C.F., Birdsey, J., Chen, G.X.,
Hitchcock, E.M., Lincoln, J.E., Akinori, N., & Sweeney, M.H. (2014)
``Obesity and Other Risk Factors: The National Survey of U.S. Long-
Haul Truck Driver Health and Injury,'' American Journal of
Industrial Medicine, 57, 615-626. Available at: https://www.ncbi.nlm.nih.gov/pubmed/24390804. (Accessed January 4, 2019).
    \30\ Available at: https://www.ncbi.nlm.nih.gov/pubmed/22624451
(accessed May 6, 2019).
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     26.5 percent of long-haul truck drivers reported that they
slept 6 hours or less per night, compared to 30.0 percent of the
general working population;
     51.4 percent of long-haul truck drivers reported that they
slept 6-8 hours per night, compared to 63.9 percent of the general
working population; and
     22.1 percent of long-haul truck drivers reported that they
slept more than 8 hours per night, compared to 5.0 percent of the
general working population.
    These studies show that long-haul truck drivers are, on average,
getting more sleep than they did prior to the HOS rule change in 2003.
Further, it shows that drivers are likely getting more sleep than other
working adults in the United States.
    Maislin, et al. (2001),\31\ showed that it is possible for a person
to avoid physiological sleepiness or performance deficits on less than
7 hours of sleep; the subjects in this study were supplementing their
sleep with longer naps later in the day. Maislin found that a shorter
restricted anchor sleep combined with longer naps can reduce sleepiness
and performance deficits similar to longer duration anchor sleep alone.
This study confirmed that total sleep time per 24-hour period is an
important factor in reducing fatigue and improving performance. Rest
breaks, and especially naps, are an important tool in combating
fatigue, and FMCSA encourages their use. As noted in Wylie (1998),\32\
``[n]aps in trips with judged drowsiness appeared to result in recovery
effect, compared to the relatively high levels of drowsiness seen in
the hour prior to napping.'' Research on napping indicates it does
refresh a driver and improves performance in the near term. Caldwell,
et al. (1997),\33\ found that their subjects performed better after
napping compared to after only resting without sleep. Garbarino (2004)
\34\ found that, in addition to working as a short-term countermeasure
to fatigue experienced during normal working hours, napping ``before
night work can be an effective countermeasure to alertness and
performance deterioration.'' Naps do not have to be long to improve
performance.

Sallinen, et al. (1997),\35\ found that naps of less than 1 hour most
influenced performance, and a survey of train engineers found that 20-
minute napping was effective for enhancing alertness (Moore-Ede, et al.
(1996)).\36\
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    \31\ Maislin, G., Rogers, N.L., Price, N.J., Mullington, J.M.,
Szuba, M.P., Van Dongen, H.P.A., and Dinges, D., (2001) ``Response
Surface Modeling of the Effects of Chronic Sleep Restriction With
and Without Diurnal Naps,''--Report. Available in the docket for
this rulemaking.
    \32\ Wylie, D. (1998) ``Commercial Motor Vehicle Driver
Drowsiness, Length of Prior Principal Sleep Periods, and Naps,''--
Report. Available in the docket for this rulemaking.
    \33\ Caldwell, J.S., et al. (1997) ``The Efficacy of Hypnotic-
Induced Prophylactic Naps for the Maintenance of Alertness and
Performance in Sustained Operations,''--Report. Available in the
docket for this rulemaking.
    \34\ Garbarino, S., et al. (2004) ``Professional Shift-Work
Drivers Who Adopt Prophylactic Naps Can Reduce the Risk of Car
Accidents During Night Work,''--Report Abstract. Available in the
docket for this rulemaking.
    \35\ Sallinen, Harma, M., [Aring]kerstedt, T., Rosa, R.,
Lillqvist, O. (1997) ``Can a Short Napbreak Improve Alertness in a
Night Shift?''--Report. Available in the docket for this rulemaking.
---------------------------------------------------------------------------

    The research discussed above demonstrates that drivers are getting
adequate sleep, and that allowing a 7/3 split option would continue to
provide the opportunity for a a longer sleep period commensurate with
current levels of sleep for truck drivers. Further, by excluding the
shorter rest period from the calculation of the 14-hour driving window,
a driver has the ability to obtain needed rest without using available
work time.