Hours of Service of Drivers
Notice Of Proposed Rulemaking.
To promote safety and to protect driver health, FMCSA proposes to revise the regulations for hours of service for drivers of property-carrying commercial motor vehicles (CMVs). To achieve these goals, the proposed rule would provide flexibility for drivers to take breaks when needed and would reduce safety and health risks associated with long hours. The proposed rule would make seven changes from current requirements. First, the proposed rule would limit drivers to either 10 or 11 hours of driving time following a period of at least 10 consecutive hours off duty; on the basis of all relevant considerations, FMCSA currently favors a 10-hour limit, but its ultimate decision will include a careful consideration of comments and any additional data received. Second, it would limit the standard “driving window” to 14 hours, while allowing that number to be extended to 16 hours twice a week. Third, actual duty time within the driving window would be limited to 13 hours. Fourth, drivers would be permitted to drive only if 7 hours or less have passed since their last off-duty or sleeper-berth period of at least 30 minutes. Fifth, the 34-hour restart would be retained, subject to certain limits: The restart would have to include two periods between midnight and 6 a.m. and could be started no sooner than 168 hours (7 days) after the beginning of the previously designated restart. Sixth, the definition of “on duty” would be revised to allow some time spent in or on the CMV to be logged as off duty. Seventh, the oilfield operations exception would be revised to clarify the language on waiting time and to state that waiting time would not be included in the calculation of the driving window.
6 actions from December 29th, 2010 to June 8th, 2011
December 29th, 2010
February 2nd, 2011
- NPRM Comment Period End
February 16th, 2011
- NPRM; Notice of Availability of Supplemental Documents and Corrections; Extension of Comment Period
March 2nd, 2011
- Extended Comment Period End
May 29th, 2011
- NPRM Comment Period Reopened
June 8th, 2011
- NPRM Comment Period Reopened End
Table of Contents Back to Top
- FOR FURTHER INFORMATION CONTACT:
- SUPPLEMENTARY INFORMATION:
- Table of Contents
- I. Public Participation and Request for Comments
- A. Submitting Comments
- B. Viewing Comments and Documents
- C. Privacy Act
- II. Overview
- III. Legal Basis
- IV. Background
- A. History
- B. Process
- C. Description of Industry
- V. Agency Goals
- A. Safety—Fatigue
- B. Driver Health
- C. Flexibility
- VI. Discussion of Proposed Rule
- A. Driving Time
- B. Breaks
- C. Duty Time/Driving Window
- D. Restart and Weekly Limits
- E. Sleeper Berth
- F. Other Issues
- VII. Section-by-Section Analysis
- VIII. Required Analyses
- A. Executive Order 12866
- Rule Benefits
- B. Regulatory Flexibility Act
- 1. A Description of the Reasons Why Action by the Agency is Being Considered
- 2. A Succinct Statement of the Objectives of, and Legal Basis for, the Proposed Rule
- 3. A Description of and, Where Feasible, an Estimate of the Number of Affected Small Entities to Which the Proposed Rule Will Apply
- First Year Impacts on Small Entities
- Annual Burden on Affected Small Entities
- 4. Discussion of the Impact on Affected Small Entities
- 5. A Description of the Projected Reporting, Recordkeeping, and Other Compliance Requirements of the Proposed Rule, Including an Estimate of the Classes of Small Entities Which Will Be Subject to the Requirement and the Type of Professional Skills Necessary for the Preparation of the Report or Record
- 6. An Identification, to the Extent Practicable, of All Relevant Federal Rules Which May Duplicate, Overlap, or Conflict with this Proposal
- 7. A Description of Any Significant Alternatives to the Proposed Rule Which Minimize Any Significant Impact on Small Entities
- C. Paperwork Reduction Act
- D. National Environmental Policy Act
- E. Executive Order 13132 (Federalism)
- F. Privacy Impact Assessment
- G. Executive Order 12630 (Taking of Private Property)
- H. Executive Order 12988 (Civil Justice Reform)
- I. Executive Order 13045 (Protection of Children)
- J. Executive Order 13211 (Energy Supply, Distribution, or Use)
- K. Executive Order 12898 (Environmental Justice)
- L. Unfunded Mandate Reform Act
- List of Subjects
- PART 385—SAFETY FITNESS PROCEDURES
- Appendix B to Part 385—Explanation of Safety Rating Process
- Appendix C to Part 385—Regulations Pertaining to Remedial Directives in Part 385, Subpart J
- PART 386—RULES OF PRACTICE FOR MOTOR CARRIER, INTERMODAL EQUIPMENT PROVIDER, BROKER, FREIGHT FORWARDER, AND HAZARDOUS MATERIALS PROCEEDINGS
- Appendix B to Part 386—Penalty Schedule; Violations and Maximum Civil Penalties
- PART 390—FEDERAL MOTOR CARRIER SAFETY REGULATIONS; GENERAL
- PART 395—HOURS OF SERVICE OF DRIVERS
Tables Back to Top
- Table 1—Summary of 10-Year Costs and Benefits for Proposed Rule
- Table 2—Hours Slept by Hours Worked—2008 ATUS
- Table 3: Health Habit and Risk Relationships
- Table 4—Driver Groups by Intensity of Schedule
- Table 5—Estimated Benefits by Amount of Sleep and Crash Rate for Option 2 (10 Hours Driving)
- Table 6—Estimated Benefits by Amount of Sleep and Crash Rate for Option 3 (11 Hours Driving)
- Table 7—Estimated Benefits by Amount of Sleep and Crash Rate for Option 4 (9 Hours Driving)
- Table 8—Net Benefits by Option
- Table 9—Driver Health Conditions by Weight Category
- Table 10—Number of Carriers by Fleet Size
- Table 11—Private Carriers and Drivers by Industry
- Table 12—First-Year Costs to Affected Firms per Power Unit for Option 2
- Table 13—First-Year Costs to Affected Firms per Power Unit for Option 34
- Table 14—Impact of First-Year Costs on Affected Firms for Option 2
- Table 15—Impact of First-Year Costs on Affected Firms for Option 3
- Table 16—Annual Impact of Costs on Firms Over 10 Years for Option 2
- Table 17—Annual Impact of Costs on Firms Over 10 Years for Option 3
DATES: Back to Top
You may submit comments by February 28, 2011.
ADDRESSES: Back to Top
You may submit comments, identified by docket number FMCSA-2004-19608 or RIN 2126-AB26, by any of the following methods:
- Federal eRulemaking Portal: http://www.regulations.gov.
- Fax: 202-493-2251.
- Mail: Docket Management Facility (M-30), U.S. Department of Transportation, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue, SE., Washington, DC 20590-0001.
- Hand delivery: Same as mail address above, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The telephone number is 202-366-9329.
To avoid duplication, please use only one of these four methods. See the “Public Participation and Request for Comments” portion of the SUPPLEMENTARY INFORMATION section below for instructions on submitting comments.
FOR FURTHER INFORMATION CONTACT: Back to Top
Mr. Thomas Yager, Chief, Driver and Carrier Operations Division, Federal Motor Carrier Safety Administration, U.S. Department of Transportation, 1200 New Jersey Avenue, SE., Washington, DC 20590, (202) 366-4325.
SUPPLEMENTARY INFORMATION: Back to Top
Table of Contents Back to Top
I. Public Participation and Request for Comments
A. Submitting Comments
B. Viewing Comments and Documents
C. Privacy Act
III. Legal Basis
C. Description of Industry
V. Agency Goals
B. Driver Health
VI. Discussion of Proposed Rule
A. Driving Time
C. Duty Time/Driving Window
D. Restart and Weekly Limits
E. Sleeper Berth
F. Other Issues
VII. Section-by-Section Analysis
VIII. Required Analyses
A. Executive Order 12866
B. Regulatory Flexibility Act
1. A Description of the Reasons why Action by the Agency Is Being Considered
2. A Succinct Statement of the Objectives of, and Legal Basis for, the Proposed Rule
3. A Description of and, where Feasible, an Estimate of the Number of Affected Small Entities to which the Proposed Rule Will Apply
4. Discussion of the Impact on Affected Small Entities
5. A Description of the Projected Reporting, Recordkeeping, and Other Compliance Requirements of the Proposed Rule, Including an Estimate of the Classes of Small Entities which will be Subject to the Requirement and the Type of Professional Skills Necessary for the Preparation of the Report or Record
6. An Identification, to the Extent Practicable, of all Relevant Federal Rules which may Duplicate, Overlap, or Conflict with this Proposal
7. A Description of any Significant Alternatives to the Proposed Rule which Minimize any Significant Impact on Small Entities
C. Paperwork Reduction Act
D. National Environmental Policy Act
E. Executive Order 13132 (Federalism)
F. Privacy Impact Assessment
G. Executive Order 12630 (Taking of Private Property)
H. Executive Order 12988 (Civil Justice Reform)
I. Executive Order 13045 (Protection of Children)
J. Executive Order 13211 (Energy Supply, Distribution, or Use)
K. Executive Order 12898 (Environmental Justice)
L. Unfunded Mandate Reform Act
I. Public Participation and Request for Comments Back to Top
FMCSA encourages you to participate in this rulemaking by submitting comments, data, and related materials. All comments received will be posted without change to http://www.regulations.gov and will include any personal information you provide.
A. Submitting Comments
If you submit a comment, please include the docket number for this rulemaking (FMCSA-2004-19608), indicate the specific section of this document to which each comment applies, and provide a reason for each suggestion or recommendation. You may submit your comments and material online or by fax, mail, or hand delivery, but please use only one of these means. FMCSA recommends that you include your name and a mailing address, an e-mail address, or a phone number in the body of your document so that FMCSA can contact you if there are questions regarding your submission. However, see the Privacy Act section below regarding availability of this information to the public.
To submit your comment online, go to http://www.regulations.gov and click on the “submit a comment” box, which will then become highlighted in blue. In the “Document Type” drop down menu, select “Proposed Rules,” insert “FMCSA-2004-19608” in the “Keyword” box, and click “Search.” When the new screen appears, click on “Submit a Comment” in the “Actions” column. If you submit your comments by mail or hand delivery, submit them in an unbound format, no larger than 81/2by 11 inches, suitable for copying and electronic filing. If you submit comments by mail and would like to know that they reached the facility, please enclose a stamped, self-addressed postcard or envelope.
FMCSA will consider all comments and material received during the comment period and may change this proposed rule based on your comments.
B. Viewing Comments and Documents
All public comments, as well as documents mentioned in this notice, are available in the public docket. To view them, go to http://www.regulations.gov and click on the “read comments” box in the upper right hand side of the screen. Then, in the “Keyword” box insert “FMCSA-2004-19608” and click “Search.” Next, click the “Open Docket Folder” in the “Actions” column. Finally, in the “Title” column, click on the document you would like to review. If you do not have access to the Internet, you may view the docket online by visiting the Docket Management Facility in Room W12-140 on the ground floor of the Department of Transportation West Building, 1200 New Jersey Avenue, SE., Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays.
C. Privacy Act
Anyone may search the electronic form of comments received into any of our dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.). You may review Department of Transportation's (DOT) Privacy Act Statement for the Federal Docket Management System published in the Federal Register on January 17, 2008 (73 FR 3316), or you may visit http://edocket.access.gpo.gov/2008/pdf/E8-785.pdf.
II. Overview Back to Top
Goals. The goal of this HOS proposed rule is to improve safety while ensuring that the requirements would not have an adverse impact on driver health. The proposed rule also would provide drivers with the flexibility to obtain rest when they need it and to adjust their schedules to account for unanticipated delays. FMCSA has also attempted to make the proposed rule easy to understand and readily enforceable.
Admittedly, design of HOS rules raises conceptual and empirical challenges. The impact of such rules on CMV safety is difficult to separate from the many other factors that affect heavy-vehicle crashes. The 2008 FMCSA final rule on HOS noted that “FMCSA has consistently been cautious about inferring causal relationships between the HOS requirements and trends in overall motor carrier safety. The Agency believes that the data show no decline in highway safety since the implementation of the 2003 rule and its re-adoption in the 2005 rule and the 2007 [interim final rule]” (73 FR 69567, 69572, November 19, 2008). While that statement remains correct, the total number of crashes, though declining, is still unacceptably high. Moreover, the source of the decline in crashes is unclear.
FMCSA believes that the HOS regulations proposed today, coupled with the Agency's many other safety initiatives and assisted by the actions of an increasingly safety-conscious motor carrier industry, would result in a significant improvement in safety. We note as well that the proposed rule is intended to protect drivers from the serious health problems associated with excessively long work hours, without significantly compromising their ability to do their jobs and earn a living.
Summary of the Proposed Rule. The proposed rule would change the existing HOS regulations in a number of ways. The required off-duty period would remain at a minimum of 10 consecutive hours. Driving time between two such periods could either be 10 hours, as it was prior to the 2003 rule (68 FR 22455; April 28, 2003), or 11 hours. While the 10-hour rule is currently FMCSA's currently preferred option, the Agency discusses both alternatives in detail below. The driving window would remain, on most days, at 14 consecutive hours after coming on duty following a break of at least 10 hours; but a driver would be permitted to be on duty for only 13 hours of that time as opposed to the current 14 hours. A driver would also be required to be released from duty at the end of the 14-hour period. To provide drivers with the ability to rest, if needed, or to respond to unanticipated conditions, twice a week, drivers would be allowed to extend the driving window to 16 hours. Extending the driving window, however, would not increase either driving or on-duty time. As a consequence of the 13-hour on-duty limit, a driver using the extension would need to take up to 3 hours off duty during that duty day. A driver would be required to go off duty at the end of the 16-hour driving window.
To prevent excessive hours of continuous driving, the proposed rule would permit drivers to drive only if 7 hours or less have passed since the driver's last off-duty or sleeper-berth period of at least 30 minutes. For example, if a driver began driving immediately after coming on duty, he or she could drive until the 7th hour. However, because the required breaks would be linked to time on duty, a driver who first worked 3 hours at a terminal and then began driving would have to take a half-hour (or longer) break no later than the end of the 4th hour of driving (i.e., the 7th hour on duty). The proposed rule would give drivers great flexibility in scheduling their breaks. If someone began driving immediately after coming on duty and took an early break between hours 2.5 and 3.0, he or she could drive 7 consecutive hours before reaching the 10-hour limit. If the 11-hour driving-time limit was adopted, the early break would have to occur between hours 3.5 and 4.0 to allow 7 consecutive hours of driving before reaching the end of the 11th hour. Conversely, a driver could drive until the 7th hour before taking the break, whether the daily limit was 10 or 11 hours. Assuming that truckers do nothing but drive (which is unrealistic) and want to minimize their breaks, they could take the required half-hour break anywhere between hours 2.5 and 7 of a 10-hour driving period or between hours 3.5 and 7 of an 11-hour driving period. Working beyond the 7th hour without a break is permitted, however, as long as the driver does not actually drive a CMV after the 7th hour. In practice, a driver who took a half-hour break at 6 to 7 hours after coming on duty would not be required to take a second break during the driving window of 14 hours.
The weekly limits in the current rule (60 hours on duty in 7 days or 70 hours on duty in 8 days) would remain unchanged. The 34-hour restart allowed under the current rule, which permits drivers to restart the 60- or 70-hour “clock” by taking a break of at least 34 consecutive hours off duty, would be retained, but with certain limitations. First, any restart would have to include two periods between midnight and 6 a.m. Depending on when the restart begins, 34 consecutive hours off duty could satisfy this requirement. In other instances, the restart period would have to be longer to incorporate the two nights. The two-night requirement would have no impact on the majority of drivers who regularly drive during the day. Drivers who regularly drive at night would have to take longer restarts to obtain two nights of sleep. Second, a driver would be allowed to begin another 34-hour off-duty period no sooner than 168 hours (7 days) after the beginning of the previous restart. Limiting the restart to once in 7 days effectively reduces the number of hours a driver could be on duty and drive from an average of about 82 hours in 7 days under the current rule to an average of 70 hours. Third, the driver would have to designate whether a period of 34 hours or more off duty was to be considered a restart.
FMCSA is not proposing any changes to the sleeper-berth rule at this time. Drivers using the current rule must take at least 8, but less than 10, consecutive hours in the sleeper berth and a shorter break of at least 2 hours off duty or in the sleeper berth (in lieu of the standard 10 consecutive hours off duty). The shorter of the breaks used under the sleeper berth rule is included in the calculation of the driving window. The use of the sleeper berth rule, however, would be affected by the other changes proposed. The driving window would be 14 to 16 hours long; duty time would be limited to 13 hours. A driver using the 16-hour window could count the shorter period toward the 3 hours of breaks that the driver would have to take to reach 16 hours; the shorter period, therefore, would not reduce the 13 hours of on-duty time. When the driver uses the 14-hour window, the shorter break will reduce the 13-hour on-duty time by at least 1 hour.
FMCSA proposes to change the definition of “on duty” to allow team drivers to log as off duty up to 2 hours spent in the passenger seat immediately before or after a period of 8 or more hours in the sleeper berth while the other team member is driving. FMCSA is also proposing additional language that would exclude time spent resting in a non-moving CMV from the definition of “on duty” time.
Finally, FMCSA is proposing to make drivers and motor carriers potentially liable for the maximum penalty available if they drive or permit someone to drive 3 or more hours over the 10/11-hour driving-time limit. This provision targets egregious violations of the driving-time limits.
The Agency has attempted to structure these requirements to protect safety and health while maintaining industry flexibility and minimizing the impact on drivers working more reasonable schedules. Because the drivers who work very extensive hours are a relatively small minority, FMCSA does not anticipate that this rule would have significant adverse impact on the industry. Since the drivers who work to the limits of the current rule are those most likely to develop fatigue over the course of the day and week, a reduction in their driving hours should lead to reductions in fatigue-related crashes. Preventing these crashes and reducing relative crash risk overall to improve safety is the principal goal of the HOS regulations.
Although the Agency is primarily concerned with highway safety, FMCSA anticipates an additional benefit from reducing allowable daily and weekly work hours for the drivers with high-intensity schedules. Recent research indicates that inadequate sleep is associated with increases in mortality. This effect is believed to involve an increase in the propensity for workplace (and leisure time) accidents and in mortality due to an increase in the incidence of high blood pressure, diabetes, cardiovascular disease, and other health problems; some of these conditions could disqualify drivers for medical reasons. Since increases in hours worked are associated with decreases in hours spent sleeping, and truck drivers working high-intensity schedules get significantly less than the 7 hours of sleep required for optimal mortality, cutting back on such schedules should reduce, to some extent, mortality among these drivers. These benefits should be counted as outcomes of reductions in total work allowed to drivers.
|Option 2||Option 3||Option 4|
|7% Discount Rate:|
|3% Discount Rate:|
III. Legal Basis Back to Top
This proposed rule is based on the authority of the Motor Carrier Act of 1935 and the Motor Carrier Safety Act of 1984 (1984 Act). The Motor Carrier Act of 1935 provides that “The Secretary of Transportation may prescribe requirements for (1) qualifications and maximum hours of service of employees of, and safety of operation and equipment of, a motor carrier; and, (2) qualifications and maximum hours of service of employees of, and standards of equipment of, a motor private carrier, when needed to promote safety of operation” (Section 31502(b) of Title 49 of the United States Code (49 U.S.C.)).
The HOS regulations proposed today concern the “maximum hours of service of employees of * * * a motor carrier” (49 U.S.C. 31502(b)(1)) and the “maximum hours of service of employees of * * * a motor private carrier” (49 U.S.C. 31502(b)(2)). The adoption and enforcement of such rules were specifically authorized by the Motor Carrier Act of 1935. This proposed rule rests on that authority.
The 1984 Act provides concurrent authority to regulate drivers, motor carriers, and vehicle equipment. It requires the Secretary of Transportation to “prescribe regulations on commercial motor vehicle safety. The regulations shall prescribe minimum safety standards for commercial motor vehicles.” Although this authority is very broad, the 1984 Act also includes specific requirements: “At a minimum, the regulations shall ensure that (1) commercial motor vehicles are maintained, equipped, loaded, and operated safely; (2) the responsibilities imposed on operators of commercial motor vehicles do not impair their ability to operate the vehicles safely; (3) the physical condition of operators of commercial motor vehicles is adequate to enable them to operate the vehicles safely; and (4) the operation of commercial motor vehicles does not have a deleterious effect on the physical condition of the operators” (49 U.S.C. 31136(a)). The United States Court of Appeals for the District of Columbia Circuit (DC Circuit) has said with regard to 49 U.S.C. 31136(a)(4) that “the statute requires the agency to consider the impact of the rule on `the physical condition of the operators,' not simply the impact of driver health on commercial motor vehicle safety. * * * It is one thing to consider whether an overworked driver is likely to drive less safely and therefore cause accidents. Whether overwork and sleep deprivation have deleterious effects on the physical health of the driver is quite another.”Public Citizen et al. v. FMCSA, 374 F.3d 1209, 1217 (DC Circuit 2004). This proposal would improve both highway safety and the health of CMV drivers.
This proposed rule is also based on the authority of the 1984 Act and addresses the specific mandates of 49 U.S.C. 31136(a)(2), (3), and (4). Section 31136(a)(1) mainly addresses the mechanical condition of CMVs, a subject not included in this rulemaking. To the extent that the phrase “operated safely” in paragraph (a)(1) encompasses safe driving, this proposed rule also addresses that mandate.
Before prescribing any regulations, FMCSA must also consider their “costs and benefits” (49 U.S.C. 31136(c)(2)(A) and 31502(d)). Those factors are also discussed in this proposed rule.
IV. Background Back to Top
For drivers of CMVs, HOS have been regulated since December 1937 when the Interstate Commerce Commission (ICC) promulgated the first Federal HOS rules. The rules were revised significantly in 1938 and 1962. The 1938 revision limited drivers to 10 hours of driving in 24 hours with at least 8 hours off duty; drivers could be on duty 60 hours in 7 days or 70 hours in 8 days. The 1962 revision dropped the 24-hour requirement, effectively allowing drivers to drive 10 hours and take 8 hours off, then drive again. (See the May 2, 2000, notice of proposed rulemaking (NPRM) for a detailed history of the provisions (65 FR 25540)).
The 2000 NPRM proposed a comprehensive revision of the HOS regulations in response to the ICC Termination Act of 1995. The new rules were to be science-based; the Agency collected relevant studies and completed its own comprehensive Commercial Motor Vehicle Driver Fatigue and Alertness Study, a joint undertaking with Canada and the trucking industry. FMCSA assembled an expert panel of recognized authorities on traffic safety, human factors, and fatigue to review the science and evaluate regulatory alternatives. FMCSA conducted eight nationwide public hearings on the NPRM and three 2-day public roundtable discussions. On April 28, 2003, the Agency promulgated a final rule (68 FR 22455).
The 2003 rule made significant changes in the rules for property-carrying operations. Driving time was extended from 10 to 11 hours, but the driving window was limited to 14 consecutive hours after coming on duty (as opposed to the previous 15 cumulative on-duty hours). The daily rest period was extended from 8 to 10 hours. The weekly limits were unchanged, but drivers were allowed to restart the calculation of weekly hours anytime they took an off-duty break of at least 34 consecutive hours (the 34-hour restart). Drivers using sleeper berths were allowed to accumulate the equivalent of 10 consecutive hours off in two periods, neither of which could be less than 2 hours. (See the 2003 final rule for a detailed discussion of the changes.)
On June 12, 2003, Public Citizen, Citizens for Reliable and Safe Highways, and Parents Against Tired Truckers filed a petition to review the 2003 HOS rules with the DC Circuit. On July 16, 2004, the DC Circuit issued an opinion holding “that the rule is arbitrary and capricious [under the Administrative Procedure Act (APA)] because the agency failed to consider the impact of the rules on the health of drivers, a factor the agency must consider under its organic statute” and vacated the rule (Public Citizen et al. v. FMCSA, 374 F.3d 1209, at 1216). Congress then directed that the 2003 regulations would remain in effect until the effective date of a new final rule addressing the issues raised by the Court or September 30, 2005, whichever occurred first. 
On August 25, 2005, FMCSA published a final rule that addressed driver health issues; it also retained the 11 hours of driving, 14-hour driving window, 10 hours off duty, and the 34-hour restart (70 FR 49978). The rule revised the sleeper-berth provision to require at least 8, but less than 10, consecutive hours in the sleeper berth, providing drivers with the opportunity to obtain 7 to 8 hours of uninterrupted sleep each day. Drivers using the sleeper berth exception had to take an additional 2 hours either off duty or in the sleeper berth, which is included in the calculation of the 14-hour driving window. The 2005 rule also provided an exception for drivers who operate within 150 air-miles of their work reporting location and who drive CMVs that do not require a commercial driver's license (CDL) to operate. To enable these short-haul carriers to meet unusual scheduling demands, the driver could use a 16-hour driving window twice a week. (See the 2005 final rule for a detailed discussion of the changes and a discussion of driver health issues.)
Public Citizen and others challenged the 2005 rule on several grounds, as did the Owner-Operator Independent Drivers Association (OOIDA). On July 24, 2007, the DC Circuit rejected OOIDA's arguments, which focused on the sleeper-berth provision, but accepted part of Public Citizen's arguments. The DC Circuit concluded that FMCSA did not satisfy the APA's requirements to explain its reasoning and provide an opportunity for notice and comment on portions of the regulatory evaluation; the Court, therefore, vacated the 11-hour driving-time and 34-hour restart provisions (OOIDA v. FMCSA, 494 F.3d 188 (DC Cir. 2007)).
FMCSA published an interim final rule (IFR) on December 17, 2007 (72 FR 71247), to prevent disruption of both enforcement and compliance while the Agency responded to the issues identified by the Court. The IFR re-promulgated both 11 hours of driving time and the 34-hour restart. In response to the Court's findings, the preamble to the IFR included a detailed explanation of the Agency's time-on-task methodology (72 FR 71252 et seq.). On November 19, 2008, FMCSA published the provisions of the IFR as a final rule (73 FR 69567).
On December 18, 2008, Advocates for Highway and Automotive Safety, Public Citizen, the International Brotherhood of Teamsters, and the Truck Safety Coalitions (HOS petitioners) petitioned FMCSA to reconsider the research and crash data justifying the 11-hour driving rule and the 34-hour restart provision. FMCSA denied the petition.  On March 9, 2009, the HOS petitioners filed a petition for review of the 2008 rule in the DC Circuit and, on August 27, 2009, filed their opening brief. However, in October 2009, DOT, FMCSA, and the HOS petitioners reached a settlement agreement.
Pursuant to the agreement, the petition for review is in abeyance pending FMCSA's publication of this NPRM. After considering all the comments, FMCSA must publish a final rule by July 26, 2011.
As part of its process for considering revisions to the HOS rule, FMCSA sought input and comments from its Motor Carrier Safety Advisory Committee (MCSAC) and from the public, including carriers, drivers, unions, safety advocacy groups, and others. The latter comments were provided at five public listening sessions. In addition, the HOS docket has been open and comments filed during this period have been reviewed.
MCSAC. MCSAC was established by the Secretary of Transportation on September 8, 2006, and is charged with providing advice and recommendations to the FMCSA Administrator on motor carrier safety programs and regulations. In the fall of 2009, FMCSA asked its MCSAC to identify ideas and concepts that the Agency should consider in developing the HOS regulations. At the time, MCSAC membership was comprised of 15 experts from the motor carrier industry, safety advocates, and safety enforcement sectors.  In addition, three organizations (Public Citizen, the Teamsters, and the Truck Safety Coalition) participated in the meetings as guests. MCSAC met in December 2009 and February 2010 to discuss the regulations. On February 2, 2010, they forwarded a report to the Administrator. The full report is available in the Docket (FMCSA-2004-19608-3867). The committee's principles included the following:
- The rule should be simple, enforceable, and compliance should be measurable.
- FMCSA should consider expert opinion, all available data, and feedback from HOS listening sessions.
- FMCSA should consider the appropriateness (implementation vs. enforcement) of a one-size-fits-all approach.
- Safety, not profit/productivity, should be considered first and foremost.
- A guiding principle should be how driver health relates to the safety of the public.
- FMCSA should consider total cost to industry.
In the short term, MCSAC recommended that FMCSA consider:
- All available valid research on all impacts (e.g., health), including new research performed since the 2008 HOS rule. Additionally, FMCSA should review studies that were not considered under the previous rulemakings (e.g., shift work studies and epidemiological research findings that are related to driver health and HOS).
- Each incremental hour on duty and its effect on driver fatigue, beginning with the first hour. Determine whether there is a fatigue breakpoint (a point in time after which performance declines).
- Driving schedules in light of circadian rhythm research and crash rates by time of day, while balancing the effects on the general public.
- Industry safety performance data under the current rule (e.g., crash data, fatalities, injuries, compliance-related data, exposure data).
- Existing data on the total cost to society of all fatigue-CMV crashes (not just fatal or injury crashes) (e.g., economic paralysis of section of city/State to clear a CMV crash; medical care for those seriously injured without insurance; lost productivity; fuel costs; air pollution; costs to families of persons injured).
- Current practices, research, and technologies within other transportation modes and industries regarding fatigue. Consider international approaches to HOS, including those of Canada, the European Union (EU), Australia, and Japan. For example, EU requires electronic logging devices with well-educated enforcement. Also, in Canada, drivers may “borrow” driving time from the following day while meeting a weekly average.
- Allowing more flexibility with respect to rest breaks and driving time, including, but not limited to, sleeper berth rest breaks.
Listening sessions. To solicit further information, FMCSA held five public listening sessions in January and March 2009, in Washington, DC, Dallas, TX, Los Angeles, CA, Davenport, IA, and Louisville, KY. The Davenport session was held adjacent to a large truck stop and the Louisville session was held at the Mid-America Trucking Show to encourage participation by drivers. The sessions were webcast, and comments were also submitted via toll-free telephone lines. Approximately 300 individuals and organizations spoke at the sessions. The majority of the speakers were drivers and carriers or associations representing them; most of the drivers who spoke were in for-hire, long-haul, truck-load (TL) operations.
In general, the carriers, drivers, and their associations supported the existing rule with two exceptions. They supported maintaining 11 hours of driving time and the 34-hour restart. Carriers and their associations stated that the 11 driving hours provided flexibility and that some carriers had redesigned routes and schedules to use the full 11 hours; they believed that changing to a shorter period would be costly. Drivers indicated that they use the restart frequently; when away from home, they may take no more than 34 hours off; at home, the restart is usually longer. Some drivers argued for a shorter restart (24 hours or less).
Many, but not all, drivers objected to the 14-hour consecutive period, saying that it forced them to drive when they were tired because breaks were included in the calculation of the driving window. They also said that the rule made it difficult to avoid congestion because they had to drive during rush hours; under the pre-2003 rule, they could have pulled off the road and waited until congestion eased without reducing their available duty hours. Drivers sought more flexibility. Specifically, they asked FMCSA to make the 14-hour period cumulative (i.e., off-duty time would not be included in calculation of the driving window) or allow the driving window to be extended to 16 or 18 hours. A few drivers supported the current 14-hour rule, stating that it prevented carriers and brokers from forcing them to log waiting time at shippers and receivers as off duty so they could work longer days.
Many drivers and carriers objected to the existing sleeper berth rule that allows 10 hours off duty to be taken in two periods, one of 8 to 10 hours and the other of 2 or more hours, with the shorter period included in the calculation of the driving window. Team drivers in particular wanted the flexibility to be able to divide their 8-hour sleeper berth time into shorter periods (e.g., 4 + 4 hours, 5 + 3 hours, etc.). Drivers who spoke on this issue asked that the shorter period not be included in the calculation of the duty period.
Representatives of the safety advocacy groups and the Teamsters generally supported the 14-consecutive-hour provision, but opposed 11 hours of driving and the 34-hour restart because these provisions allow long days of continuous work and work weeks up to 84 hours in 7 days. They urged FMCSA to consider the body of research on the effects of long hours on performance and health and to establish a 24-hour circadian schedule.
Drivers also raised several issues that affect them, but are outside of FMCSA's statutory authority. The number of available areas where truck drivers can safely stop and rest, although never adequate, has been reduced in the last few years as some States have closed rest areas for budgetary reasons. Drivers stated that the lack of safe rest areas made it difficult for them to find a place to take their 10-hour off-duty period. A number of drivers also stated that the current methods of paying many drivers (by the mile or load) provide shippers with no incentive to load or unload a truck promptly. Independent owner-operators and smaller carriers complained that they could spend 30 to 40 hours of unpaid time a week waiting for shippers. Finally, drivers stated that anti-idling laws adopted by some State and local governments to reduce pollution can make it difficult to sleep because they cannot run their air conditioning or heating. FMCSA acknowledges these complaints; but, as explained in previous HOS rulemakings, the Agency does not have the statutory authority to address these issues.
C. Description of Industry
The trucking industry comprises hundreds of thousands of carriers and millions of drivers moving goods locally or in long hauls between cities. The industry is diverse, and different sectors have different operational characteristics. The industry can be divided in a number of ways: Private versus for-hire; long-haul versus short-haul; TL versus less than truckload (LTL). Private carriers are not trucking firms; they are manufacturers, distributors, or retailers that move their own goods among factories, distribution centers (warehouses), and retail outlets. Their drivers generally operate on a regular basis over routes set by the locations of their own facilities and those of their customers. For-hire carriers are in the transport business; they move goods for their customers. An LTL carrier usually picks up and delivers small shipments in a local area served by one of its terminals. Shipments are consolidated into loads for large trucks that make long runs to the firm's terminals in other areas. Moves between terminals are almost always overnight on regular routes. The goods moved overnight are delivered the next day by the local drivers at the destination terminal. The TL carriers typically pick up a full load from a shipper and move it directly to the receiver of the goods. Some of their business is regular and predictable under contracts or less-formal agreements. Much of their business is almost random in nature, movements from one place to another being sold and booked on a daily basis. Drivers in random service may not know where they will be at the end of each day. Their runs are often made by day, but many also require night-time driving. Short-haul drivers operate within a local area; most are not exclusively night-time drivers. Their routes may vary day by day, but they are always in the same general area. They may spend a good part of each day loading and unloading at multiple locations. Although there are exceptions, most long-haul drivers do not load or unload the cargo.
The various segments of the industry are affected differently by HOS provisions. Many short-haul drivers, including unionized drivers who mostly engage in local or LTL operations, operate well within all of the provisions of the rule. LTL firms and many private carriers have set their routes and terminals to stay within the HOS rule. Those who are most affected are long-haul TL carriers. According to the 2007 Commodity Flow Survey, more than 95 percent of the tonnage moved by private carriers is transported less than 250 miles and less than 1 percent is carried more than 500 miles; 500 miles is about the maximum for a 1-day trip. About 12 percent of the tonnage moved by for-hire carriers is transported more than 500 miles; only 4 percent is transported 1,000 miles or more. Overall, 93 percent of the tonnage moved solely by truck is transported in trips of 500 miles or less.  This percentage may be rising because a number of the largest TL carriers are shifting to intermodal operations, putting cargo on intermodal trains for moves that require more than a day and making all-truck moves only in regional operations.
V. Agency Goals Back to Top
FMCSA set three primary goals as it developed this proposed rule. First, the rule provisions should improve safety by reducing driver fatigue in a cost-effective, cost-justified manner. Second, the rule should ensure that the requirements do not have an adverse effect on driver health. Third, the rule should provide drivers with some flexibility in their schedules to encourage them to take rest breaks when they need them. This section discusses the general rationale for these goals.
A fundamental purpose of the HOS regulations is to reduce crash risk in order to improve safety, and as elaborated at length, the Agency has concluded that the proposed rules will have significant safety benefits. Ideally, the Agency would have data to measure crash risk along all of the dimensions for which regulations are proposed. Because the Agency has been not been able to gather such data, it has based its analysis, in significant part, on share of crashes that are fatigue-coded. The Agency recognizes that using share of crashes that are fatigue-coded could have two possible problems:
a. Accident inspectors may be more likely to code crashes as fatigue-related if the driver has been on the road longer.
b. The share of crashes that are coded as fatigue-related may conceivably increase because the share of crashes caused by other factors goes down. There could be no increase in the risk of a fatigue-related crash (the central question), but an increase in the share of fatigue-related crashes.
Nonetheless, while the data are not as complete as FMCSA would like them to be, the Agency aimed to limit, to the extent possible, the likelihood that drivers will be fatigued, either when they come on duty or during or at the end of a working period. Fatigue affects performance well before a person becomes sleepy. As a person becomes fatigued, reaction times slow, concentration becomes more erratic, and decision-making is slowed; all of which affect the ability of a driver to respond quickly to a hazardous driving situation. Eventually fatigue reaches a point where the person has trouble staying awake and may be unable to avoid falling asleep.
The fatigue that this rule addresses is primarily that caused by lack of adequate sleep (as opposed to physical fatigue caused by strenuous activity). A regulation cannot compel a driver to sleep when off duty. FMCSA can only ensure that the hours that a driver is allowed to work in a day and a week do not interfere with the opportunity to obtain adequate sleep if the driver works the maximum hours permissible. The studies of restricted sleep show that over days of mild, moderate, or severe sleep restriction (1) alertness and performance degrade as cumulative sleep debt rises; (2) even mild sleep restriction (loss of less than 1 hour of sleep a day) degrades performance over days. Seven to 8 hours of consolidated night-time sleep in each 24 hours appear to sustain performance over multiple days, if not longer, for most people. 
Sleep deprivation is classified as acute or chronic. A person who gets little or no sleep for 24 hours will suffer from acute sleep loss; that person's cognitive ability at the end of the period of being awake for 24 hours is significantly impaired. Research indicates that people can recover completely from acute sleep loss with 1 or 2 nights of adequate sleep (7-8 hours). A person who gets an hour or two less sleep per night than needed develops chronic sleep deprivation. Over 5 days, the person accumulates 5 to 10 hours of sleep debt. Sleep research indicates that people who are chronically sleep deprived need at least 2 nights of adequate sleep to recover. Depending on the level of sleep deprivation, individuals may stabilize at a lower level of performance and believe they have recovered, but their performance will deteriorate more rapidly across waking hours.  Belenky, G., et al. (2003) concluded that this stabilization makes it difficult to recover rapidly to the same level of performance that existed prior to the sleep deprivation even when a person is able to obtain adequate sleep. Van Dongen, H.P., et al. (2003) found that chronic sleep restriction to 6 hours or less produced cognitive performance deficits equivalent to up to 2 nights of total sleep deprivation.
The central issue that FMCSA must consider in developing HOS regulations involves the relative crash risk associated with each hour of driving. It would be valuable, for example, to know the crash risk in the ninth, tenth, and eleventh hours, and to compare that risk to the risk in other hours. However, as noted above, FMCSA needs additional data to estimate relative crash risk in each hour of driving and hence has decided to consider, as a proxy, how many hours drivers can consistently work over a period of time without becoming sleep-deprived. There are two approaches to answering that question. The Agency can examine data on fatigue-related crashes, and it can review research that measures the amount of sleep that drivers are getting under the existing rule and compare that to the science on sleep deprivation.
As FMCSA discussed at length in previous HOS rulemakings, the percentage of CMV crashes associated with fatigue is not known. Estimates range from the 1.5 percent to 2.1 percent found in the Trucks in Fatal Accident (TIFA) data  to 13 percent in the Large Truck Crash Causation Study (LTCCS)  to even higher percentages mentioned in other studies.  Because fatigue is difficult to determine after the fact, it is often not coded in crash reports, while, in some cases, it may be coded even when the driver was not fatigued because the driver's log showed long hours at work and investigators assumed fatigue. It is generally believed, however, that fatigue-coding understates the level of fatigue-related crashes. In 2008, large trucks were involved in approximately 365,000 recorded crashes, 3,700 of which involved fatalities, 64,000 involved injuries only, and 297,000 were property-damage only.  Even if fatigue is a contributing factor in only a small percentage of crashes, it still has a profound safety impact.
During the 2010 listening sessions, a number of the carriers and their associations argued that the sharp decline in fatal crashes in the past several years is proof that the long hours that may be worked under the existing rule have not reduced safety and may have improved it. The crash rates for CMVs have been declining since 1979; the rates went up slightly in 2004 and 2005 before declining again. Neither the slight increase after the adoption of the existing rule nor the decline thereafter can be definitely associated with the HOS rule. Crashes have multiple causes and the consequences of a crash are affected by many factors—including speed, size of vehicles involved, roadway conditions, and improved safety features in vehicles.
The percentage of fatigue-coded crashes in TIFA fluctuated between 1.5 percent and 2.1 percent between 1998 and 2007. The number of CMV driver fatalities rose 14 percent between 2003 and 2007 (heavy truck vehicle miles traveled rose only 4 percent), but declined sharply in 2008. (Driver fatalities occur more often in single vehicle crashes, which are more likely to be associated with fatigue.) The decline in 2008, which the industry noted, also occurred in passenger-vehicle-only crashes. In general, crashes decline in recessions, as they did in 1982-83, 1991-92, and 2001-02. The recent decline in crashes is welcome; but it cannot be attributed to any single factor affecting crashes, including implementation of the 2003 rule.
Because the crash data understate fatigue and because crashes often have multiple causes, which make it difficult to determine the role of fatigue even when it is suspected, FMCSA has to look at other research to determine whether the rules require drivers to take enough off-duty time to allow them to obtain sufficient sleep to avoid being fatigued. As noted above, sleep research indicates that humans need between 7 and 8 hours a night to avoid sleep deprivation and accumulating sleep debt. There are individual variations in sleep needs, but the Agency must base its assessment of the regulation on the average driver, not the outliers who need considerably less or more sleep to avoid fatigue. In the Virginia Tech Transportation Institute (VTTI) naturalistic driving study of CMV drivers operating under the 2003 rule, measured sleep averaged 6.15 to 6.28 hours (the average includes both work days and days off); the average on work days was 5.6 hours.  These drivers drove at night, which would have reduced their sleep, but they were not working full 14-hour days (less than half of the work shifts identified included driving in the 10th hour; a third did not include driving beyond 8 hours). 
Two other surveys covered drivers after the implementation of the 2003 rule. Both asked drivers about the amount of sleep they obtain on working days. Research indicates that self-reports of sleep overestimate sleep by 20 to 60 minutes, particularly for sleep times below 7 hours.  Nonetheless the results are consistent with the findings of other research. The Truck Driver Fatigue Management Survey conducted for FMCSA collected data in 2005 from almost 2,300 unionized LTL drivers.  About 60 percent of the respondents drove at night; most respondents drove routes that required fewer than 10 hours of driving and returned home daily. The survey found similar levels of sleep (average 6.23 reported hours of sleep prior to starting a run). The drivers reported an average 6.94 hours of sleep in 24 hours on working days, which means that drivers estimated they were getting about 42 minutes of additional sleep during the working day.
The Bureau of Labor Statistics' (BLS) American Time Use Survey (ATUS) has participants complete a daily log of time spent on various activities for the same day of the week for 60 weeks. For example, a participant will record time spent working, eating, exercising, watching television, and checking e-mail every Monday for 60 weeks.  A National Institute for Occupational Safety and Health (NIOSH) analysis of ATUS data on truck drivers from the 2003 to 2006 surveys found that while drivers reported an extra hour of sleep in 2004 compared to 2003, the amount of sleep reported had declined to close to the 2003 level by 2006 and that sleep on working weekend days also declined. The drivers who participated in the survey appear to be mostly local drivers.  The decline in sleep as work hours increase is consistent with previous research on CMV drivers that has showed sleep time is a function of the amount of off duty time available, i.e., as off duty time increases so does average nightly sleep time.  Table 2 presents the reported sleep of drivers in the 2008 ATUS by hours worked. 
|Hours worked||Number of driver respondents||Driver average hours slept per day|
Although the sleep measured by VTTI, which provides the most reliable data on sleep under the current rule, is better than many drivers obtained under the pre-2003 rule, the weekly average (with 2 nights off) of slightly more than 6 hours a night is not enough sleep. The Truck Driver Fatigue Management Survey indicated that fatigue continues to be an issue for a substantial percentage of drivers. About 38 percent of the drivers said they sometimes and 6.7 percent said they often had trouble staying awake while driving. About 13 percent reported that they often or sometimes fell asleep while driving; 47.6 percent said they had fallen asleep while driving in the previous year. Although only 23.4 percent said they often or sometimes felt fatigued while driving, 65 percent reported that they often or sometimes felt drowsy while driving. A third of the drivers reported that they became fatigued on a half or more of their trips. The factor that most drivers stated contributed to fatigue while driving was the amount of sleep before the trip; weather and hours of driving were the next most frequently cited factors.
Drivers at the listening sessions frequently stated that they know when they are tired and, therefore, are the best judges of when they need rest and how much. Research, however, indicates that people are not good at assessing their own level of fatigue. In sleep research on CMV drivers, self-assessments of fatigue and sleepiness show little if any relationship to measured performance and sleepiness.  People who are chronically fatigued do not recognize performance impairment; some do not even recognize sleepiness.  Drivers appear to equate tiredness with being sleepy, but performance is impaired well before a driver becomes sleepy. Some drivers at the listening sessions noted that they needed naps in the middle of their working day even though they had a full 10-hour off-duty period prior to starting, which indicates that they are not obtaining adequate sleep during the long off-duty period. The importance of adequate sleep was shown in the VTTI study, which found that in the 24 hours before a critical incident (i.e., crashes, near crashes, and crash-relevant conflicts such as unintended lane deviations), the average sleep was only 5.2 hours, about 0.4 hours less than an average working day. FMCSA believes that fatigue continues to be a problem for CMV drivers working the longest hours. The 2003 rule, however, does not appear to have decreased the daily hours worked, which may partly explain why drivers continue to obtain inadequate sleep. The NIOSH analysis of ATUS data on truck drivers, discussed above, found an increase in drivers working longer hours since the 2003 rule became effective. FMCSA requests comments on additional studies the Agency should consider in developing the final HOS rules.
Ideally, if available, the Agency would use post-2003 data to provide a before and after analysis of the 2003 change from a 10- to an 11- hour limit. It might compare States with different hours limits. Under this approach, the Agency could use the probability of a crash in each hour of driving, not the proportion of crashes that are fatigue-related.
B. Driver Health
Adverse effects on driver health must be carefully considered in the formulation of HOS regulations. Driving a CMV, particularly in regional and long-haul operations, involves both long hours of work and long hours of continuous sitting. A growing body of research across industries (described in greater detail in the regulatory impact analysis (RIA) available in the docket) indicates that long hours of work are linked to sleep loss, which in turn is linked to obesity, cardiovascular disease (CVD), diabetes, and a variety of other health impacts.  Long hours are also independently associated with obesity.  There is no simple linear relationship between the “driver's life” of long hours, protracted sitting, and moderate-to-severe sleep deprivation and one or more health outcomes. Rather this relationship must be viewed as a network of mutually reinforcing effects that result in varying levels of risk for particular outcomes such as CVD. Table 3 reflects current scientific thinking on how this network of relationships acts on health:
|Long hours||→||Insufficient sleep.|
|→||High blood pressure.|
|→||Increased risk of mortality.|
|Obesity||→||Obstructive sleep apnea.|
|→||High blood pressure.|
The RIA includes a detailed discussion of research related to sleep loss, health effects related to sleep loss, and particularly the biochemical mechanisms that link sleep loss with obesity, diabetes, and CVD. It is important to note that the links between sleep loss and many of the health effects are not simply correlations; in many cases, scientists have been able to identify the biochemical changes associated with sleep deprivation that produce the health effects. 
Although sleep loss, long hours, and sedentary work are not the only factors contributing to obesity, the level of obesity among CMV drivers is dramatically higher than among U.S. adult male workers as a whole—67 percent higher for all obesity (about 30 percent of all adult male workers  are obese versus 50  -55 percent of CMV drivers  ), and about 3 times greater for body mass indices (BMIs) >40 (4.2 percent of all adult male workers versus 12 percent of CMV drivers).  As discussed in detail in the RIA, chronic sleep loss is associated with increased mortality. The increased mortality rates associated with obesity are much higher. Hauner, H. (2009) cites a study, published in 2009, on BMI and cause-specific mortality in 900,000 adults that “showed an average loss of 2 to 4 years of life with a BMI between 30 and 34.9; and a BMI between 40 and 45 shortened life by an average of 8 to 10 years.”  Finkelstein, E.A., et al. (2010) did not find significant impacts below a BMI of 35, but found that BMIs of 35 to < 40 reduced life span for whites by 4 to 5 years; BMIs of 40 and above reduced life spans by 8 to 10 years.  Beyond mortality effects, the health conditions that result from sleep deprivation and sedentary work are associated with higher health care costs and the risk that drivers who develop the conditions may fail to meet the medical standards for driving a CMV.
In the 2005 final rule, FMCSA discussed in detail other potential factors associated with health effects, including exposure to particulate matter in diesel fumes, vibration, noise, etc.  For all of these, it was difficult to develop a dose-response relationship that relates specific hours of exposure to particular health impacts. For diesel exposure, there is the confounding factor that drivers may be less exposed when driving than when stopped at truck stops or terminals. FMCSA supported research conducted by the University of Tennessee to examine factors that are suspected to influence health and performance of CMV drivers—noise, vibration, and cabin air quality of heavy-duty diesel vehicles. These variables were measured both while vehicles were driven and while they were parked with the engine idling. The resulting data will serve as a baseline from which similar future studies can determine if new truck designs have changed the existing state of these conditions for drivers. Twenty-seven trucks (model years 2006-2008) from four manufacturers were tested. Overall, in-cab noise levels were found to be below the 8-hour standard limits established by the Occupational Safety and Health Administration and FMCSA. Average vibrations from the seats were generally found to be below International Standards Organization-established (but non-regulatory) standard exposures for an 8-hour driving day. Air quality was determined by measuring in-cab concentrations of carbon monoxide, nitrogen oxides and particulate matter less than 2.5 microns aerodynamic diameter. The results indicated that trucks have a tendency to self-pollute the cabs during extended periods parked with the engine idling; on-road concentrations were several orders of magnitude lower. Carbon monoxide concentrations were well below standard permissible exposure levels. During several parked-idling scenarios, particulate matter concentrations exceeded air quality standards for 24-hour and annual averages. 
FMCSA has not changed the conclusions it drew in 2005 on health impacts regarding noise, vibration, and air quality. FMCSA has not found any other research that changes the conclusions regarding these health impacts. However, FMCSA emphasizes that it is important to study the chronic conditions of truck drivers. We therefore seek information from the public on conditions that truck drivers face.
As discussed above, drivers at the public listening sessions asked FMCSA to provide some flexibility in the rules so that they could take breaks when they need rest or encounter unexpected delays. FMCSA agrees that drivers should be encouraged to take rest when they need it and has included provisions to incorporate flexibility into schedules. In developing the proposed rule, however, FMCSA was aware that the flexibility that some drivers were seeking, if unconstrained, would simply allow them or their employers to build into their schedules the extended hours that the 2003 rule was intended to curb. FMCSA, therefore, strove to balance flexibility with the need to limit hours of work.
VI. Discussion of Proposed Rule Back to Top
A. Driving Time
For the reasons explained below, while FMCSA views the 10-hour driving limit as the currently preferred option, FMCSA understands that available data are susceptible to more than one interpretation and, consequently, is considering both a 10-hour driving limit and an 11-hour driving limit within one duty day. Commenters are therefore encouraged to submit data or studies that would allow FMCSA to calculate more effectively the difference, if any, in crash risk between a 10- and an 11-hour driving limit. Such a calculation would be especially important in developing benefits estimates.
FMCSA seeks information on the increased probability of a fatigue-related crash during the 11th hour; to obtain such information, FMCSA seeks information on the percentage of total number of hours driven after the 10th hour. With respect to cost estimates, FMCSA seeks information regarding the impact of eliminating the 11th hour of driving on logistics, location centers, distribution centers, just in time inventories, competitiveness with global markets, and delivery of perishable goods. With respect to benefits and costs, FMCSA seeks information with respect to any other process/logistics aspects of driving hours not captured in safety, productivity of drivers, and driver health.
The motor carrier industry operated under a 10-hour driving limit for decades prior to the 2003 rule. FMCSA acknowledged in past rulemakings that the risk associated with driving increases with the number of hours driven. Data from the LTCCS and TIFA show that the prevalence of fatigue-related crashes increases with hours driven, most notably between the 10th and 11th driving hours. LTCCS also found the probability of having a fatigue-coded crash increased with hours worked and awake. Any person driving 11 hours rather than 10 is likely to have been working for a longer period.
The approach to estimating the effects of long driving hours on crash risks assumes that higher ratios of fatigue-related crashes to total crashes implies higher crash rates. It is mathematically possible, though, that the increase in this ratio could come about because the denominator—the total number of crashes—is falling at a faster rate than fatigue-involved crashes as driving hours increase, not because fatigue increases. In other words, crash rates due to weather, mechanical failure, traffic, or road conditions may fall, as each driver accumulates more hours on the road; and this could make it appear that fatigue is a growing problem whereas it is actually stable. Because fatigue-related crashes more than triple over a long driving day, however, the incidence of crashes caused by other factors would have to drop precipitously for this explanation of the increasing ratio of fatigue crashes to hold. The Agency has no evidence for a pattern in which greater hours on the road would be associated with systematic reductions in crash causes other than fatigue, let alone a pattern so dramatic as to explain the increasing rate of fatigue-related crashes. Hence, the Agency is using the share of fatigue-related crashes in lieu of data on the relative crash risk at each hour.
Generally, studies of time-on-task fatigue have not determined whether, let alone when, the driver took breaks during the driving window, how long a driver had been awake or on duty, or how many hours the driver had worked that week. All of these factors could have an impact on fatigue and on the likelihood of crashes in the later hours of a work day.
The VTTI naturalistic driving study, sponsored by DOT and used for other distracted driving rulemakings, found no increase in risk between the 10th and 11th hours of driving.  Indeed, this study found that the first hour of driving is the riskiest and that there is little, if any, difference in risk among other hours. This is significant because the VTTI study is one of the few research studies that looks at 11th hour crash risk using data from the period after 2003, when 11th hour driving became legal for interstate as well as intrastate drivers. This study has been published and subject to peer review.
For several reasons, however, the VTTI study does not appear to be definitive. First, it involved a small sample size of 102 drivers that was not representative of the trucking industry. Second, the study looks at the risk of critical incidents, which include near-crashes and crash-avoidance responses, as well as actual crashes. A definitive link between critical incidents and crash risk has not been established. Third, the study involved drivers who were, with their knowledge, observed by video cameras and other electronic equipment. It is possible that this may have led drivers to behave more carefully than drivers would have in the absence of observation, leading to an overall underestimate of crash likelihood, and possibly an underestimate of the risk during the eleventh hour. (Note that the observation occurred at all hours and hence the question is whether the observation effect, if it existed, eliminated what would otherwise be an elevated risk in the eleventh hour. There is no reason to believe that being observed would cause drivers to be relatively more careful when driving longer hours than when driving shorter hours.) Fourth, drivers and carriers who participated in the video-surveyed study did so voluntarily, which could skew the study towards participation from more safety-conscious drivers and carriers.
Ideally, FMCSA would want to compare the number of serious crashes in each hour of driving after an extended break to the total driving time by hour of driving or, alternatively, vehicle miles traveled by hour. Conceptually, the degree to which the distribution of crashes falls into later driving hours relative to the distribution of driving would indicate the change in risk for longer trips. The data set would have to be reasonably representative of the drivers affected by the regulations; large enough to provide an accurate picture for individual hours, despite the rarity and randomness of crashes and the relatively small fraction of driving in the later hours; use an unbiased measure of hours; and cover a period in which long driving hours were legal. Furthermore, data on other factors that are known to affect fatigue and crash risks—total time on duty that day and previous days, short breaks, opportunities for restorative rest, time of day, and experience, for example—would have to be included in the data set as well, to allow the time-on-task effect to be isolated.
A data set meeting these criteria is not available at this time. The Agency is requesting commenters to provide any statistically reliable data that would allow specification of relative crash risk of each hour of driving. An answer would turn on knowing the total number of crashes in each hour and the percentage of driving takes place in each hour. The Agency is also interested in knowing whether the risk of fatigue-related crashes increases with additional hours awake or on task, or if the relative crash risk (of all crashes not just the likelihood that crashes will be coded as fatigue) does not increase in later hours, as the VTTI study suggests. There are some large samples of crash data that include the number of hours of driving, including the LTCCS (published but not peer reviewed) and TIFA; but the time periods these cover are largely or entirely before the HOS rules were changed in 2003. They are also deficient, to varying degrees, in the availability and reliability of information on driver schedules and other factors that affect crash risks. Even more seriously, these studies do not directly provide information on the distribution of all driving by hour for either the drivers involved in the crashes or for comparable drivers. In other words, the data sets provide the numerator for the rate of crashes per hour, but not the denominator.
It is possible to develop distributions of all driving by hour (through surveys, for example), but these cannot be used along with crash data for a different population without biasing the results to an unacceptable degree. Researchers have also collected data on both crashes and total driving hours for the same populations; but, to date, these studies have had samples too small (and narrow, in terms of their subjects' characteristics) to give reliable results on long hours. FMCSA is currently sponsoring a study based on schedule data collected by electronic logs that should be able to solve most of the problems in this type of research, but that study is not complete as of the time of the analysis. Given the imprecise but demonstrated relationship between fatigue, time-on-task, hours awake, and hours worked, there is a reasonable argument for limiting driving time to 10 hours.
Before making a final decision, however, FMCSA is seeking additional studies or data that examine, in greater detail, the differences between driving in the 10th or the 11th hours. FMCSA is also interested in data that indicate when and how frequently the 11th hour is used. It seeks data on how much of the 11th hour is used when a driver goes into the 11th hour. For example, on days in which the driver both picks up and delivers a truckload, how often does the driver have enough duty time to reach the 11th hour? When the driver drives over 10 hours, is it by 5 minutes or by 55 minutes? What is the percentage of driving that takes place in each hour compared to total driving that occurs?
The American Trucking Associations (ATA), in their comments to the docket (April 21, 2010), argued that reducing driving time or on-duty time would increase crashes because more inexperienced drivers would need to be hired to move freight. FMCSA recognizes that there is a risk associated with inexperienced drivers, but believes that this problem is not as serious as ATA suggests. The 2007 Commodity Flow Survey indicated that about 75 percent of freight is moved in trips of less than 100 miles; with loading and unloading time, it is unlikely that drivers making multiple short trips in a day are able to drive 10, let alone 11 hours. FMCSA's 2007 Field Study found that for longer haul operations (beyond 100 miles) 27 percent of the driving periods extended into the 11th hour.  Based on comments about long loading/unloading time that drivers made at the listening sessions, it appears that there will be many days when drivers cannot reach even 10 hours.
In an industry where TL motor carriers experience annual driver turnover above 100 percent, there is always a considerable influx of new drivers each year, as well as experienced drivers changing jobs. Better training and supervision of new drivers would seem a more reasonable response than pushing older drivers to work longer hours. In addition, when FMCSA analyzed this issue in the 2003 RIA, it found the effects of hiring new drivers were almost exactly counterbalanced by the reduced volume of long-haul trucking caused by shifting some traffic to rail.
Nonetheless, there is considerable uncertainty about the extent of the elevated crash risk associated with inexperience; and the possibility that new drivers operating under a 10-hour limit might be involved in more crashes than veteran drivers following an 11-hour rule cannot be ignored. According to BLS figures, employment in the trucking industry has declined by between 9 and 13 percent since 2008—or by 120,000 to 180,000 drivers. A 10-hour limit that required carriers to hire additional personnel might result in the return of experienced drivers largely immune to “rookie” driving mistakes. In any case, while FMCSA currently favors the 10-hour limit, it requests further research and data from the commenters before making a decision.
Under the existing rule, a driver may drive for up to 11 consecutive hours. Although a relatively small percentage of drivers drive without breaks, the complaints from drivers about their inability to take breaks under the 14-hour rule suggest that some may, in fact, work without any breaks. ATA, in their comments to the docket, stated that the full 14-hour day has been built into supply chain planning and that any reduction would affect productivity. This argument implies that some carriers expect their drivers to work the full 14 hours without a break. A NIOSH analysis of ATUS data on truck drivers found that truck drivers worked 1 hour per day more on weekdays and 3.4 hours per day more on weekends in 2006 compared to 2003. 
FMCSA believes that working continuously without a break is neither safe nor healthy. Research indicates that breaks during work can counteract fatigue and reduce the risk of crashes.  On the health side, Hamilton, M.T., et al. (2007) found that increased standing and moving had a greater effect on the body's ability to block molecular signals that cause metabolic diseases than adding vigorous exercise. They concluded that a non-exercising person may become even more metabolically unfit by sitting too much. 
FMCSA wants to give drivers flexibility in scheduling breaks, recognizing that they are not always able to find a place to stop at a particular point in their schedule. Under the proposed rule, drivers would be able to work and drive for up to 7 hours without a required break. Upon reaching the 7th hour since coming on duty, the driver would need to take a break of at least a half hour before resuming driving. The driver could remain on duty without a break after the 7th hour, but could not drive again without taking a break. A driver who took a half hour break at 6.5 or 7 hours after coming on duty would generally not need a second break. But a driver who took a half-hour break 4 hours after coming on duty would need a second break no later than 11.5 hours after coming on duty to drive after that time. This approach should give drivers considerable latitude in scheduling breaks. Many drivers take breaks already; the 2006 FMCSA Truck Driver Fatigue Management Survey indicated that more than 65 percent of the drivers took breaks of a half hour or more during the work day.  A break will reduce time-on-task effects and negative health impacts of prolonged sitting.
C. Duty Time/Driving Window
FMCSA proposes to set a 14-consecutive-hour driving window during which a driver may be on-duty for 13 hours. At the end of the driving window, the driver would have to go off duty. This approach effectively reduces the maximum allowable work during a duty period by 1 hour from the existing rule and gives drivers an opportunity to take up to an hour off duty during the working day. An extra hour off duty per day should increase sleep and mitigate fatigue and health impacts for drivers working to the limits of the rule. Even if drivers do not sleep during the breaks, they can engage in other non-work activity (e.g., eating and talking to friends and family) that might otherwise reduce sleep time during the 10-hour off-duty period. The 1-hour reduction in duty time, in combination with 10 hours of driving time, would maintain the amount of on-duty-not-driving time that the current rule allows for drivers who are using all of their driving time, i.e., 3 hours. If the Agency adopts the 11-hour driving limit, drivers would have only 2 hours of on-duty-not-driving time. FMCSA field studies in 2005 and 2007 indicated that many drivers do not work the 14 hours allowed under the current rule; the reduction to 13 on-duty hours, therefore, should have a limited impact on most drivers.
As discussed above, drivers at the listening sessions and in comments on the previous rulemakings stated that the existing rule discourages them from taking breaks because breaks are included in the calculation of the 14-hour driving window. They asked FMCSA to return to the pre-2003 rule, which did not include off-duty time in the calculation of the 15-hour limit then in effect. FMCSA rejected that approach in 2003 because it enabled drivers to extend the duty day well beyond 15 hours, allowing them to drive 17 to 20 hours or more after starting work, when fatigue can be extreme.
Because FMCSA wants to encourage drivers to take rest breaks when needed and in response to requests for flexibility, the Agency is proposing to allow drivers of property-carrying CMVs to extend the driving window by 2 hours, to 16 consecutive hours, twice in the previous 168 consecutive hours. This is not a calendar week (e.g., 12:01 a.m. Monday to 12 p.m. Sunday, etc.) but rather a moving period comprised of the past 168 hours, a period that changes every hour. A driver who used one 16-hour driving window starting at 6 a.m. on Tuesday and a second beginning at 8 a.m. on Thursday, could not start another 16-hour day until 6 a.m. on the following Tuesday. It should also be noted that taking a 34-hour (or longer) restart does not affect this 168-hour look-back period. In other words, the driver does not get two 16-hour days simply by completing a restart period. The proposed extension would not extend the 13-hour duty time; any driver who wanted to drive to the 16th hour after coming on duty would have to have taken 3 hours of off-duty time during the driving window. Any use of time beyond 14 hours after coming on duty would count as a use of the extension. For example, a driver who worked a 14.5 hour period would be considered to have used one extension. Finally, the driver would have to go off duty at the end of the 16th hour (instead of the end of the 14th hour on normal days).
FMCSA considered extending the driving window to 16 hours daily, but decided that such a change would invite the extended hours that occurred under the pre-2003 rules. Once drivers, carriers, brokers, and shippers knew drivers could work over a 16-hour period daily, they could build that period into their scheduling, as ATA indicates they have done with the 14-hour clock. That could mean drivers would be routinely driving in the 16th hour after the start of the driving window. It would also put the driver on a schedule that could move starting time forward 2 hours a day or 10 hours over a 5-day period. Although it is easier to obtain adequate sleep when moving a schedule forward rather than backward, this level of forward change could seriously disrupt sleep. Unlike drivers on regular schedules who would use the extension only if necessary to deal with unexpected problems (breakdowns, unanticipated congestion) because using it would disrupt their work schedule the next day, long-haul TL drivers are not on a regular schedule and would have no disincentive for using a daily 16-hour extension. FMCSA believes that limiting the 16-hour provision to twice a week and not allowing the extension to add duty time will encourage drivers to use it only when they need flexibility.
A number of drivers at the listening sessions wanted the option of extending the driving window so they could reach a safe location when they were held at a loading dock until they ran out of duty time but still had to move the truck. FMCSA does not believe that such a provision is advisable. It could take several hours to find a safe location in some parts of the country. These drivers were essentially asking for an unlimited extension of the work day as the result of frequently occurring incidents that should be foreseeable under most circumstances. In addition, it would be impossible to determine whether the driver needed time (however little) to reach a safe location or was simply working beyond the limits. Similarly, drivers argued that they want to be able to stop driving and “sit out” rush hours. Drivers could use the 16-hour window to avoid rush hour congestion twice a week, if they choose to use it that way, but not more frequently. FMCSA requests comments on whether 16 hours is an appropriate extension or whether 15 hours would be sufficient. FMCSA also requests comments on whether the extension should be limited to once a week, twice a week, or allowed more frequently, and whether drivers should be barred from using the extension on consecutive days.
Night drivers, particularly those using the sleeper berth at rest areas or truck stops, may find it difficult to obtain a reasonable amount of sleep in the day-time. Even people who are suffering from acute sleep deprivation (e.g., no sleep for 24 hours) find it hard to sleep during the day under ideal conditions (dark, quiet spaces). FMCSA is soliciting information on patterns of work for night drivers: For drivers who always drive overnight, what is the typical length of their duty day? For drivers who sometimes drive overnight, how frequently do they do that? FMCSA is seeking comments on whether drivers who drive at least 3 hours between midnight and 6 a.m. should have an hour less duty time available (12 hours rather than 13) to provide a longer period to obtain sleep.
D. Restart and Weekly Limits
The pre-2003 rule prohibited driving after being on duty 60 hours in 7 days or 70 hours in 8 days. This meant that drivers working to the daily limits could run out of hours and would need to take up to 3 days off before they could start driving again. Particularly for long-haul drivers, this prolonged off-duty period away from home was seen as a serious problem. The 2003 final rule allowed drivers to reset their calculation of the 60- or 70-hour limits whenever they take at least 34 consecutive hours off duty. The 34-hour restart provision has been almost uniformly praised by drivers and carriers, except for those who would like a shorter restart. Safety advocacy groups, however, have opposed the restart because it allows a driver who is driving and working to the limits to be on duty up to 84 hours in 7 days and 98 hours in 8 days, a substantial increase over the 60-/70-hour limits of the pre-2003 rule. The safety advocacy groups have also pointed out that, as a practical matter, the 34-hour restart provides only one night of sleep for night-time drivers.
FMCSA did not amend the restart provision in the 2005 and subsequent rulemakings because it provides substantial economic productivity benefits and because the Agency believed that drivers would not generally take the minimum of 34 hours or work extreme hours; the Agency assumed that drivers would use the restart mainly to simplify bookkeeping and to limit down-time while away from home. Drivers and carriers, however, stated at the listening sessions and in their comments that, especially on the road, drivers do indeed take the minimum restart allowed. Drivers who are on the road for several weeks at a time could, therefore, work very long hours even if they cannot actually reach the maximum allowed because of delays in pick-ups and deliveries. Some carriers with regular schedules stated that they have used the restart to add one work shift a week. If carriers have arranged their schedules so that drivers are on duty for the full 14-hour day, as ATA claimed in its 2010 comment to the docket, then the restart allows a driver to work more than 80 hours in 7 days compared with 60 hours in the pre-2003 rule.
FMCSA continues to believe that allowing drivers to spend less idle time on long runs is sensible, but must balance this against the fact that the restart provision may be exacerbating problems with long hours and resulting fatigue. As discussed above, long weekly hours are associated with sleep loss, fatigue, and serious health impacts. FMCSA is, therefore, proposing two limits to the 34-hour restart. First, any 34-hour or longer period used as a restart would have to include two periods between midnight and 6 a.m. (2 nights of sleep). Second, drivers would be allowed to take only one restart a week; that is, they would be able to begin a restart only 168 hours after the beginning of the previous restart. For example, if a driver ends a work week at Friday at 6 p.m. and begins the restart, the restart could end no earlier than Sunday at 6 a.m. The next restart could not begin earlier than the following Friday at 6 p.m. If the driver ran out of weekly hours at noon on that second Friday, for example, he or she could not count the off-duty hours between noon and 6 p.m. toward the 34 hours.
The 2-night provision would mainly impact night-time drivers because daytime schedules already allow drivers to obtain 2 nights of sleep within the 34-hour period. For night time drivers, the 2-night provision would extend the required restart provision. Under the NPRM, a driver with a regular night-time schedule would need to take virtually an extra day off duty to meet the requirement for two night-time sleep periods and stay on schedule. ATA argued in its 2010 comment to the docket that, if confronted with this requirement, these drivers would “flip” to a day-time schedule to maximize work time, which would add to congestion. FMCSA notes that many of the drivers who work a regular night-time schedule drive for LTL or local carriers and usually take the weekend off. They will not be affected by this change. ATA also argued that 2 nights off were not needed for night drivers because they could get two sleep periods in 34 hours off. Research on shift workers indicates that on their days off they switch to a regular night-time sleep schedule. 
Washington State University conducted a study for FMCSA to determine the effectiveness of the current 34-hour restart provision in restoring performance.  The first phase of the study evaluated the effectiveness of the 34-hour restart using a laboratory setting to compare best-case (day-time work) and worst-case (night-time work) scenarios. The study found that a 34-hour break was effective at mitigating sleep loss and consequent performance impairment for day-time workers who obtained 2 nights of sleep, but was not effective for night-time workers who obtained only 1 night of sleep in the break plus two long nap periods. Research indicates that daytime sleep is not as restorative as nighttime sleep.  Even when the time is available, the time actually spent sleeping is less during the day than at night.  Shift work and night work are associated with less sleep, even when night work is permanent,  presumably because of the disrupting effects of circadian cycles.  Sleep obtained is not only reduced in length, but also poorer in quality.  Although it is not feasible to eliminate nighttime driving, such driving cannot be treated the same as driving during daytime.
Washington State University recently completed a second phase of its study. It has not been published or peer reviewed yet but will be completed soon. Phase II examined a restart provision for night-time drivers that contains two sleep periods between midnight and 6 a.m., with a minimum of 34 hours off duty. In this study, the primary performance measure, the number of lapses on a 10-minute psychomotor vigilance test (PVT), was administered eight times per day in the working periods. The study data showed no significant difference in PVT lapses between the pre-restart and post-restart work periods overall, indicating that the 2-night recovery period was effective at maintaining driver performance.  The study included a 58-hour restart period instead of a 34-hour restart period. The Washington State University study has some shortcomings. It utilized a very small sample size of participants (12 drivers). Also, the study took place not on the road, but in a laboratory setting with participants who knew that their behavior was being observed. In addition, the participants were instructed to sleep and were all recruited as perfectly healthy drivers. Because the study included a 58-hour restart time, not a 34-hour restart, the improvements could have been attributable to the extra off-duty period these 12 drivers were getting. In reality, drivers are not always in perfect health, and they cannot be told to sleep at a particular time by FMCSA. Nonetheless, FMCSA believes that the two phases of this study plus the research cited above justify today's proposal to amend the 34-hour restart by expanding the required restart period and adding a requirement for two off-duty periods from midnight to 6 a.m. The 168-hour provision would have the effect of limiting drivers' weekly hours to an average of 70 in 7 days. This represents a substantial reduction from the current limits, but still allows drivers on the road to take restarts that are shorter than required under the pre-2003 rule. Most restarts for day-time drivers would range from 34 hours to 48 hours. Drivers on a regular night schedule would need about 58 hours to obtain 2 nights of sleep and stay on schedule.
Finally, under the proposed rule, drivers would have to designate a specific period as a restart. This provision is intended to help drivers who may have a long break in the middle of the week (e.g., while waiting for the next load or because of illness), but who do not want to use that as a restart even if they are eligible to do so. Drivers may want to postpone use of the restart until a specific time so they can be sure of having the entire 60 or 70 hours available when resuming a full work schedule.
It should be noted that the restart provision is mainly important for drivers who are working long days and who, therefore, reach their 60- or 70-hour limit, which remains unchanged, in less than 7 or 8 days. Drivers who do not work long hours, or do so only on a limited number of days during the week, may never need to use the restart except as a way to simplify keeping track of their hours. For example, a driver could work 10 hours a day for 7 days, take the eighth day off, and continue to work without using the restart provision.
E. Sleeper Berth
Prior to 2005, FMCSA's rules allowed drivers to obtain the equivalent of 10 consecutive hours off by taking two periods in the sleeper berth, neither of which could be less than 2 hours long. Drivers, particularly team drivers, frequently divided their time into 5 hours of driving followed by 5 hours in the sleeper berth. In 2005, FMCSA eliminated the split sleeper berth provision and required at least 8 consecutive hours in the sleeper berth so that drivers would have the chance to obtain at least one long sleep period. Drivers using the 8-hour sleeper berth period must also take a second break of at least 2 hours, either in the sleeper berth or off duty. The shorter period is included in the calculation of the 14-hour duty period.
For years, drivers and carriers have expressed concerns about the 2005 revisions. Team drivers have complained that, because it is difficult to sleep in a moving truck, alternating shorter runs with their co-driver would allow them to stop before they become too tired. Other drivers argued that it is hard to stay in the sleeper berth for 8 consecutive hours. Drivers generally objected to the requirement to include the shorter period in the calculation of the 14-hour window, saying it discourages the use of the provision. Some drivers and carriers have also said that the complexity of the provision makes them reluctant to use it because they are uncertain how it should be logged.
FMCSA recognizes that drivers have concerns about the existing provision, but there is no clear evidence at this time that two short sleep periods can provide the equivalent of one longer period. Emerging research indicates that dividing sleep into two shorter periods results in equal alertness levels,  but this is not the only issue. The time of day in which the sleep periods are taken is critically important.
FMCSA is not proposing to change the sleeper berth exception, but the other changes to the rule would have an impact on sleeper berth users. The shorter off-duty or sleeper berth period would be included in the calculation of the driving window, as it is now. Because the driving window (14 hours) would be longer than allowed duty time (13 hours), use of the shorter period would not always reduce available duty time. On days when the driver is using the 16-hour extended window, the shorter period would not reduce duty time unless the period is more than 3 hours or unless the driver takes more than an hour of other breaks during the driving window. On days when the driver is using the 14-hour driving window, use of the sleeper exception would reduce the available duty hours by at least 1 hour.
F. Other Issues
On-duty definition. In September 2005, ATA petitioned FMCSA to change the definition of “on duty time” to allow team drivers to log as off duty up to 2 hours spent in the passenger seat. Under the existing definition, drivers are on duty if they are in the truck unless they are resting in the sleeper berth. Single drivers may spend the shorter break (at least 2 hours) either in the sleeper berth or off duty. Because one of the team members drives while the other takes his or her break, the result of the rule is that the non-working driver has to take both periods in the sleeper berth because it is not possible to log the shorter time as off duty while he or she is “in or on upon any commercial motor vehicle.”
FMCSA agrees with ATA's recommendation and is proposing to revise the definition of “on duty” to allow a team driver to log as off duty up to 2 hours spent in the passenger seat either immediately before or after the 8-hour period in the sleeper berth. In addition, FMCSA is proposing to exclude from the definition of “on duty,” time spent resting in or on a parked CMV. Drivers in the past have noted that the current definition makes it difficult for drivers of CMVs without sleeper berths (known as day cabs) to rest because they were considered to be on duty if they were in a parked truck. In many cases, the safest, most comfortable, and often the only place for such a driver to rest during a duty tour will be in the parked truck.
Penalties. FMCSA is proposing to add to the penalty schedule in Appendix B to 49 CFR part 386 a new paragraph that would define as potentially egregious violations of § 395.3(a) or § 395.5(a) any instance where the driver exceeds the driving-time limit (whether 10 or 11 hours) by 3 or more hours. The Agency would consider drivers or motor carriers who commit such violations to be eligible for the maximum civil penalties available.
In determining the amount of any civil penalty, Congress instructed FMCSA to consider a number of factors, including the nature, circumstances, extent, and gravity of the violation committed, as well as the degree of culpability, history of prior offenses, ability to pay, effect on ability to continue to do business, and other such matters as justice and public safety may require. Congress instructed FMCSA to calculate each penalty to induce further compliance (49 U.S.C. 521(b)(2)(D)). Congress, however, also entrusted FMCSA with the responsibility to ensure that motor carriers operate safely by imposing penalties designed to ensure prompt and sustained compliance with safety laws (Section 222 of the Motor Carrier Safety Improvement Act of 1999 (MCSIA), (49 U.S.C. 521 note)). Prompt and sustained compliance with driving-time limits is paramount to the Agency's safety mission; FMCSA believes that making egregious violations eligible for the maximum penalty will help to promote these goals. Although some of the statutory factors in 49 U.S.C. 521(b)(2)(D) may limit the Agency's ability to impose penalties, others—like the extent and gravity of the violation— could favor enhanced penalties. Furthermore, section 521(b)(2)(D) allows FMCSA to take into account “such other matters as * * * public safety may require.” The mandate to consider “public safety,” combined with the injunction of section 222 to impose civil penalties “calculated to ensure prompt and sustained compliance,” clearly authorizes FMCSA to balance mitigating factors against aggravating factors and to impose the maximum penalty for a first offense that has significant potential to cause serious injury or death, such as excessively long driving hours. FMCSA has no desire to impose such a penalty; on the contrary, the Agency's hope is that the deterrent effect will make such action unnecessary. But this is a penalty the Agency believes it should have at the ready to deal with truly extreme violations.
FMCSA is not proposing to make the imposition of maximum penalties automatic because it recognizes that a driver may be considered to have exceeded the limit to this degree in different circumstances. For example, one driver may have driven 14 hours between 8 a.m. and 10 p.m.; a second driver may have driven 10 hours, taken a 9-hour off-duty period, then driven another 4 hours. Both of these drivers have technically driven more than the proposed rule would allow (either 3 hours more than an 11-hour driving-time limit or 4 hours more than a 10-hour limit), but only the first might be considered an egregious violation. FMCSA requests comments on whether 3 hours is the appropriate period to trigger the consideration of egregious violation penalties. FMCSA is also seeking comment on whether it should apply a similar concept to other provisions (duty time, driving window, weekly limits, restart) and if so, what those periods should be.
Section 395.1(o). FMCSA proposes removing paragraph (o), which allows property-carrying CMV drivers who return to their work-reporting locations daily to extend the duty day to 16 hours once a week. FMCSA believes that anyone driving a CMV large enough to require a commercial driver's license (CDL) (the drivers affected by paragraph (o)) at the 16th hour should not be doing so without taking at least 3 hours off duty during that shift. FMCSA thinks the proposed rule, which would allow drivers to extend the driving window to 16 hours without extending duty time twice a week, is preferable for reasons of safety. Furthermore, retaining § 395.1(o) while introducing two 16-hour driving windows with 13-hour on-duty periods would add considerable confusion to the rule with no corresponding advantage and indeed a possible detriment to safety.
Section 395.1(e)(2). Today's proposal for a 13-hour work limit within a general 14-hour driving window, and an optional 16-hour window twice a week, is similar in some respects to the current provision for short-haul operations with vehicles that do not require a CDL (§ 395.1(e)(2)). The rule for drivers of non-CDL vehicles includes certain exceptions and restrictions (an exemption from the logging requirement coupled with a 150 air-mile operating radius and an obligation to return to the work reporting location every day); however, like the proposed rule for larger vehicles, § 395.1(e)(2) allows a 14-hour driving window 5 days a week and a 16-hour window 2 days a week. In order to simplify the HOS regulations, FMCSA is considering rescinding paragraph (e)(2) and requiring the drivers who now use it to comply with the standard HOS limits. Although we have not formally included such a proposal in this NPRM, the Agency seeks comments on the effect of eliminating paragraph (e)(2). Our preliminary analysis suggests that removing paragraph (e)(2) would offer drivers advantages (e.g., greater geographical range and freedom from the need to return to their point of departure every day) that might compensate for the more restrictive 13-hour work limit and the loss of the logbook exemption. FMCSA has little hard information about operations currently conducted under paragraph (e)(2); we invite drivers and carriers that utilize this provision to explain how a decision to remove it would affect them.
Paragraph (e)(1) of § 395.1, like paragraph (e)(2), also exempts drivers from keeping logs, but limits them to a 100 air-mile operating radius and requires them to return to their work reporting location and go off duty within 12 hours of coming on duty; unlike paragraph (e)(2), it is available to drivers of all vehicles, even those large enough to require a CDL. To what extent could carriers and drivers use this provision to compensate for a possible elimination of § 395.1(e)(2)?
In conjunction with a potential rescission of § 395.1(e)(2), the Agency is also considering an expansion of the 100 air-mile radius in § 395.1(e)(1) to 150 miles while leaving the rest of that paragraph unchanged. Please comment on the combined effects on carrier operations of those two possible amendments.
Compliance dates. When FMCSA adopted the 2003 HOS rule, it set a compliance date about 8 months after the date of publication. Before that time, drivers had to operate under the old rules. For enforcement reasons, it is necessary to set a specific date for compliance. FMCSA requests comments on the appropriate period between the effective date and compliance date of the rule. It should be long enough