[Federal Register Volume 76, Number 248 (Tuesday, December 27, 2011)]
[Rules and Regulations]
[Pages 81134-81188]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-32696]
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Vol. 76
Tuesday,
No. 248
December 27, 2011
Part IV
Department of Transportation
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Federal Motor Carrier Safety Administration
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49 CFR Parts 385, 386, 390, et al.
Hours of Service of Drivers; Final Rule
Federal Register / Vol. 76 , No. 248 / Tuesday, December 27, 2011 /
Rules and Regulations
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DEPARTMENT OF TRANSPORTATION
Federal Motor Carrier Safety Administration
49 CFR Parts 385, 386, 390, and 395
[Docket No. FMCSA-2004-19608]
RIN 2126-AB26
Hours of Service of Drivers
AGENCY: Federal Motor Carrier Safety Administration (FMCSA), DOT.
ACTION: Final rule.
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SUMMARY: FMCSA revises the hours of service (HOS) regulations to limit
the use of the 34-hour restart provision to once every 168 hours and to
require that anyone using the 34-hour restart provision have as part of
the restart two periods that include 1 a.m. to 5 a.m. It also includes
a provision that allows truckers to drive if they have had a break of
at least 30 minutes, at a time of their choosing, sometime within the
previous 8 hours. This rule does not include a change to the daily
driving limit because the Agency is unable to definitively demonstrate
that a 10-hour limit--which it favored in the notice of proposed
rulemaking (NPRM)--would have higher net benefits than an 11-hour
limit. The current 11-hour limit is therefore unchanged at this time.
The 60- and 70-hour limits are also unchanged. The purpose of the rule
is to limit the ability of drivers to work the maximum number of hours
currently allowed, or close to the maximum, on a continuing basis to
reduce the possibility of driver fatigue. Long daily and weekly hours
are associated with an increased risk of crashes and with the chronic
health conditions associated with lack of sleep. These changes will
affect only the small minority of drivers who regularly work the longer
hours.
DATES: Effective date: February 27, 2012.
Compliance date: The rule changes that affect Appendix B to Part
386--Penalty Schedule; Violations and Monetary Penalties; the oilfield
exemption in Sec. 395.1(d)(2); and the definition of on-duty time in
Sec. 395.2 must be complied with on the effective date. Compliance for
all the other rule changes is not required until July 1, 2013.
FOR FURTHER INFORMATION CONTACT: Mr. Thomas Yager, Chief, Driver and
Carrier Operations Division, Federal Motor Carrier Safety
Administration, U.S. Department of Transportation, 1200 New Jersey
Avenue SE., Washington, DC 20590 (202) 366-4325.
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Summary
A. Overview
B. Proposed Rule
C. Final Rule
D. Summary of Economic Impacts
E. Overview of Major Comments and Agency Responses
II. Legal Basis
III. Background and Description of the Trucking Industry
IV. Discussion of All Comments
A. Safety
B. Economic Impacts
C. Sleep Loss and Chronic Fatigue
D. New Research Studies
E. Driving Time Limits
F. 30-Minute Break Provision
G. Restart
H. Duty Period/Driving Window
I. Paragraphs 395.1(e)(2) and (o)
J. On-Duty Definition
K. Penalties
L. Compliance Dates
M. Other Comments
N. Beyond the Scope
V. Section-by-Section Analysis
VI. Required Analyses
A. Executive Order 12866 and Executive Order 13563
B. Regulatory Flexibility Act
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
VII. Bibliography
I. Summary
A. Overview
The goal of this rulemaking is to reduce excessively long work
hours that increase both the risk of fatigue-related crashes and long-
term health problems for drivers. A rule cannot ensure that drivers
will be rested, but it can ensure that they have enough time off to
obtain adequate rest on a daily and weekly basis. The objective of the
rule, therefore, is to reduce both acute and chronic fatigue by
limiting the maximum number of hours per day and week that the drivers
can work.
The 2003 hours-of-service (HOS) rule shortened the driving window
to 14 consecutive hours and increased the off-duty period from 8 to 10
hours, but increased driving time from 10 to 11 hours and allowed
drivers to restart their duty time calculations whenever they took at
least 34 consecutive hours off. Limiting the driving window and
increasing the daily off-duty period reduced the risk that a driver
would be driving so long after the start of the duty day that acute
fatigue would be extreme. It also moved drivers toward a 24-hour daily
clock, which is people's normal pattern, reducing the risk of fatigue
caused from continually changing sleep periods. The 2003 rule, however,
allowed drivers to work 14 hours without a break and to work 80 or more
hours a week, a substantial increase from the previous rule, which
allowed about 60 hours in 7 days.
Since the 2003 rule was promulgated, new research studies have
demonstrated that long work hours, both daily and weekly, lead to
reduced sleep and, in the absence of sufficient recovery time, chronic
fatigue. Fatigued drivers have slowed reaction times and a reduced
ability to assess situations quickly. The research has also shown that
commercial motor vehicle (CMV) drivers (like most other people) are
unable to assess their own fatigue levels accurately and are,
therefore, often unaware that their performance has degraded. When
driving an 80,000-pound CMV at highway speeds, any delay in reacting to
a potentially dangerous situation can be deadly. In addition to the
safety concerns, recent research has linked long work hours and the
resulting curtailment of sleep to a range of serious health effects,
particularly when combined with a job that is basically sedentary, like
truck driving. These health conditions--including obesity, high blood
pressure, other cardiovascular diseases, diabetes, and sleep apnea--not
only shorten drivers' lives, but also can result in substantial ongoing
medical costs and put drivers' medical certifications at risk. CMV
drivers suffer from these conditions at a higher rate than the
population as a whole.
Today's rule will reduce the risk of fatigue and fatigue-related
crashes and the harm to driver health in several ways. While the rule
allows a driver flexibility in when to take a mandatory 30 minute
break, it prohibits a driver from driving if more than 8 hours have
passed since the driver's last off-duty or sleeper berth break of at
least 30 minutes; research indicates that such breaks alleviate fatigue
and fatigue-related performance degradation. Because research has shown
that long weekly work hours are associated with a higher risk of
crashes, sleep loss, and negative health effects, the rule also limits
the use of the restart to once a week, which, on average, will cut the
maximum work week from 82 to 70 hours. The provision allows drivers to
work intensely for one week, but will
[[Page 81135]]
require them to compensate by taking more time off in the following
week. Research has long demonstrated that daytime sleep is shorter in
duration and lower in quality than nighttime sleep. The rule requires
any driver working long enough to need a restart to take off at least
34 consecutive hours that include 2 periods between 1 a.m. and 5 a.m.,
the window of circadian low. This provision will give those drivers who
both routinely work at night and put in very long work weeks an
opportunity to overcome the chronic fatigue that can build up when
working nights.
FMCSA has been engaged in long-term rulemaking related to its hours
of service regulations for commercial truck drivers. Like the Federal
Aviation Administration (FAA), FMCSA is working to address the
universality of factors that lead to fatigue. However, the FAA has
taken a different approach in addressing fatigue risk among pilots than
FMCSA has with respect to commercial truck drivers. This is because the
two industries operate differently both in terms of the likely number
of days the affected individuals work per month and the respective
operating environments. For example, pilots regularly cross multiple
time zones in a very short period time--something that is simply not
possible in other modes of transportation. Additionally, pilots may
work several days that are very long, but then be off for an extended
period of time, a practice that naturally imposes a non-regulatory
restorative rest opportunity. Finally, the nature of commercial flying
is such that under typical conditions, the actual operation is likely
to require intense concentration primarily during take-offs and
landings, with a constant, but generally predictable level of
concentration required for other phases of flight.
In contrast, commercial truck drivers face an environment where
they are required to share the highways with drivers who have not
received specialized training nor are they subject to the same
regulatory constraints that pilots are subject to. This environment
could logically lead to a regulatory approach with different fatigue
mitigators for daytime operations on congested highways, compared to
nighttime operations, where the roads are less crowded but the risk of
fatigue is greater.
In summary, the final rule will reduce the likelihood of driver
fatigue, fatigue-related crashes, and fatigue-related health effects.
Although crash rates have been falling, thousands of people are still
injured and killed in truck crashes each year, including hundreds of
truck drivers. This rule will address one of the causes of those
crashes. The Agency estimates that the benefits of the rule (reduction
in crashes and improved driver health) will outweigh the costs. The
cost of the rule represents a small fraction of one percent of trucking
industry revenues and is the cost-equivalent of less than a 3 cent-a-
gallon increase in the price of diesel fuel to the long-haul industry.
B. Proposed Rule
On December 29, 2010, FMCSA published a notice of proposed
rulemaking (NPRM) to revise the HOS rules (75 FR 82170). The Agency
sought comment on both a 10- and an 11-hour daily driving limit. The
NPRM proposed to retain the 34-hour restart, but with two
qualifications: The restart must include two consecutive periods
between midnight and 6 a.m. and could be used only once every 168 hours
(7 days). It also proposed that drivers be limited to 13 hours on duty
in each 14-hour driving window. Many drivers would be required to take
at least one half-hour break during their work shift. FMCSA also
proposed that twice a week, drivers would be allowed to extend the
driving window to 16 hours, but could not work more than a maximum of
13 hours in that time. FMCSA also proposed changing the definition of
on-duty time to allow team drivers to log 2 hours in the passenger seat
before or after an 8-hour period in the sleeper berth as off-duty time
and to allow drivers resting in a parked CMV to count that time as off
duty. FMCSA would also have clarified the oilfield exemption and
proposed a provision to allow, but not require, FMCSA to impose maximum
penalties if the driving-time limit was exceeded by 3 hours. The NPRM
included a long discussion of the research on fatigue and on issues
related to long hours, fatigue, and health.
On May 9, 2011, FMCSA reopened the comment period to accept
comments on four studies related to the HOS proposal (76 FR 26681).
C. Final Rule
Although the NPRM proposed both a 10- and an 11-hour daily driving
limit, the Agency stated that it favored a 10-hour limit. However, this
final rule does not adopt any change in the limit on daily driving
time; the current 11-hour limit therefore remains unchanged.
In the course of this rulemaking, FMCSA examined many studies on
the relationship between work hours and health and safety, both in
trucking and other industries; reviewed the comments and information
submitted to the docket, mostly in opposition to a 10-hour driving
limit; and completed elaborate analyses in accordance with Presidential
Executive Order 13563, issued January 18, 2011, '' Improving Regulation
and Regulatory Review,'' [76 FR 3821, January 21, 2011] of the costs
and benefits to health and safety of 9-, 10-, and 11-hour driving
limits.
1. 9-Hour Driving Limit. The Agency found that a 9-hour driving
limit generally has negative net benefits (i.e., its costs exceed its
benefits). In most cases the 11-hour limit has positive net benefits.
For these reasons, the Agency has not adopted a 9-hour driving limit.
2. 10-Hour Driving Limit. The 10-hour limit has positive benefits
in approximately half the cases, with the 11-hour limit having
substantially higher net benefits than the 10-hour limit in most cases.
A 10-hour limit, on the other hand, might save more lives and prevent
more crashes than an 11-hour limit, but at a higher cost.
The research literature on fatigue in the motor carrier industry
generally shows that crash risk increases with work hours, both daily
and weekly. The available data, however, are not sufficiently robust to
yield a statistically significant distinction between the crash risk
associated with any two adjacent hours of work.
In the absence of compelling scientific evidence demonstrating the
safety benefits of a 10-hour driving limit, as opposed to an 11-hour
limit, and confronted with strong evidence that an 11-hour limit could
well provide higher net benefits, the Agency has concluded that
adequate and reasonable grounds under the Administrative Procedure Act
for adopting a new regulation on this issue do not yet exist and that
the current driving limit should therefore be allowed to stand for now.
This is not to say that FMCSA is foreclosing the possibility of action
on this subject; future research may provide a basis for reconsidering
the daily driving limit. Consistent with Executive Order 13563, which
directs agencies to ``measure, and seek to improve, the actual results
of regulatory requirements,'' FMCSA is committed to conducting a
comprehensive analysis of the relative crash risk by driving hour and
the impact of the changes in the HOS provisions in today's final rule.
The Agency plans to match data collected from driver logs with crash
information to determine the level of crash risk by hours of driving.
The Agency also plans to estimate, for similarly situated drivers, the
difference between crash risk after restarts that include two nights
and those that do not. Additionally, the Agency is committed to
conducting
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periodic driver surveys to longitudinally track how the changes in the
HOS provisions, such as the two-night restart, have impacted sleep
patterns and aspects of driver fatigue and performance. FMCSA will work
with the Office of Management and Budget (OMB) on the methodologies of
these new statistical data collections. These efforts will build on
several planned and ongoing FMCSA driver fatigue-related studies such
as the on-board monitoring field test/naturalistic data collection,
split sleep study, driver recovery and napping study, and the planned
new large truck crash causation study.
This decision also is consistent with the President's E.O. 13563
and his concurrent memorandum for the heads of executive departments
and agencies entitled ``Regulatory Flexibility, Small Business, and Job
Creation'' [76 FR 3827, January 21, 2011]. As the President stated in
the latter document, ``My Administration is firmly committed to
eliminating excessive and unjustified burdens on small businesses, and
to ensuring that regulations are designed with careful consideration of
their effects, including their cumulative effects, on small
businesses.'' This order is particularly important for the trucking
industry, which has a higher percentage of small businesses than many
other segments of the U.S. economy.
3. Thirty-Minute Break. In response to commenters' concerns, FMCSA
adopts a slightly modified form of the break proposed in the NPRM.
Research with drivers and in other industrial sectors indicates that
the risk of accidents falls substantially after a break, with off-duty
breaks providing the greatest reduction in risk. The final rule
requires that if more than 8 consecutive hours on duty--compared to 7
hours in the NPRM--have passed since the last off-duty (or sleeper-
berth) period of at least half an hour, a driver must take a break of
at least 30 minutes before driving. For example, if the driver started
driving immediately after coming on duty, he or she could drive for 8
consecutive hours, take a half-hour break, and then drive another 3
hours, for a total of 11 hours. Alternatively, this driver could drive
for 3 hours, take a half-hour break, and then drive another 8 hours,
for a total of 11 hours. In other words, this driver could take the
required break anywhere between the 3rd and 8th hour after coming on
duty. A driver who plans to drive until the end of the 14th hour and
wants to take only one break will need to take a break between the 6th
and 8th hour after coming on duty. Drivers will have great flexibility
in deciding when to take the break. By postponing the latest point at
which the break can be taken from the 7th to the 8th hour, the rule
will make it significantly easier for team drivers to fit the break
into their schedules. To address an issue raised by commenters, FMCSA
has also added an exception for drivers of CMVs carrying Division 1.1,
1.2, or 1.3 explosives to allow them to count on-duty time spent
attending the CMV, but doing no other on-duty work, toward the break.
4. 14-Hour Driving Window. The maximum driving window will continue
to be 14 consecutive hours after coming on duty. To address commenters'
concerns about complexity, FMCSA has dropped the proposed 13-hour limit
for on-duty time within the 14 hours to simplify the rule. Because of
the break provision, drivers will be able to work 13.5 hours in the 14
hour period (if they are driving after the 8th hour on duty).
5. Mandatory Off-Duty Requirement at the End of the Driving Window.
FMCSA has not adopted the proposal that drivers be required to go off-
duty at the end of the 14th hour. Neither the costs nor the benefits of
the provision could be adequately analyzed.
6. Twice Weekly Extension of the Driving Window. FMCSA did not
adopt the proposed extension of the duty period to 16 hours twice a
week. The same new research on drivers since the NPRM was completed
indicates this provision should not be adopted. (See Section IV.
``Discussion of All Comments'' D. ``New Research Studies'' below.)
Driving in the 16th hour after coming on duty entails a sharply higher
risk of crashes than driving in early hours of a duty day. In addition,
industry commenters were divided on the provision and generally
skeptical that the provision would be useful.
The final rule retains provisions in paragraphs (e)(2) and (o) of
Sec. 395.1, which apply to local and regional operations. The NPRM
sought comments on eliminating these paragraphs because they might have
caused confusion with the proposed 16-hour provision. Because FMCSA has
dropped the proposed 16-hour provision, the concerns about confusion
are moot.
7. Restart Provisions. The final rule adopts the restart provision
with one variation. The restart must cover at least 34 consecutive
hours and include at least two periods between 1 a.m. and 5 a.m., not
two periods between midnight and 6 a.m. as proposed in the NPRM.
Although both alternatives cover most estimates of when the window of
circadian low occurs, the 4-hour period addresses concerns drivers
raised in the comment period by giving drivers greater flexibility in
ending and beginning the restart than the proposed 6-hour period. This
provision does not affect day drivers, who always get two such periods
in a 34-hour restart, but ensures that night drivers have an
opportunity for 2 nights of restorative sleep when they are working
longer hours. The 2-night provision does not affect drivers who are not
using the restart to work extra hours. The Agency believes the costs
are low compared to other provisions considered in this rulemaking.
Only drivers who drive nights and work more than 60 or 70 hours in a
week will be impacted. The nighttime operations of the major Less-than-
Truckload (LTL) carriers should be minimally impacted, as their drivers
generally receive 2 days off duty a week. Drivers who will be impacted
by this provision work heavy and irregular schedules that include some
nighttime driving.
FMCSA adopts the proposed provision to limit the use of the restart
to once every 168 hours (7 days); this allows drivers to work long
hours (81 hours) in 1 week but requires them to compensate in the
subsequent week by taking extra time off. The limitation reduces
maximum time during which a driver may drive up to an average of 70
hours in 7 days, a decrease from the 82-hour average allowed under the
2003 rule. The purpose of the rule change is to limit work to no more
than 70 hours a week on average. Working long daily and weekly hours on
a continuing basis is associated with chronic fatigue, a high risk of
crashes, and a number of serious chronic health conditions.
This final rule adopts the definition of on-duty time as proposed
except to add a reference to Sec. 397.5. The final rule also adopts
the clarification of the oilfield exemption and penalty provisions.
A more in-depth rationale for each of these provisions is presented
in the responses to comments in Section IV ``Discussion of All
Comments'' of this preamble.
D. Summary of Economic Impacts
The Regulatory Impact Analysis (RIA) analyzed three options beyond
the baseline (no change) option. Option 3 has an 11-hour driving-time
limit; it would require the driver to take a rest break during the day
and reduce the weekly maximum driving and on-duty time theoretically
achievable. Options 2 and 4 are identical to Option 3 in all respects
except for the amount of driving time allowed. Option 2 has an 10-hour
driving-time limit, while Option 4 has a 9-hour driving-time limit.
Option 2 (10 hours) would have a productivity impact of approximately
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2.7 percent. That is, we estimate that productivity in the industry
would be reduced by 2.7 percent due to adoption of this option. Option
3 (11 hours) would have a productivity impact of 1.2 percent. The
Agency's cost estimate for Option 3 is less than one third of one
percent of industry revenues. Option 4 (9 hours) would involve much
higher costs. Tables 1 and 2 provide a summary of the estimated costs,
benefits, and net benefits at 3 and 7 percent discount rates. The RIA
is discussed in Section VI ``Required Analyses'' A. ``Executive Order
12866 and Executive Order 13563'' of this preamble and is available in
the docket.
The RIA also estimated the impacts of the HOS rule components
individually. To estimate the impacts of the rule provisions, we
consider the overlapping effects of the individual rule components to
ensure that the impacts of one provision are not also attributed to a
second provision. Because this analysis accounts for the individual
impact of the rule provisions, the sum of the individual provisions is
greater than the combined impact of the rule provisions. Table 3
summarizes these differences, rounded to the nearest million to
demonstrate the similarity in net benefits for some of these
alternatives. Option 3, with all three provisions analyzed as a
package, is shown to have net benefits of $205 million. This
calculation does not include the $40 million FMCSA has estimated for
reprogramming costs. That package with the 2 night provision removed
(that is, including only the 7 day restart provision and the 30 minute
break) appears to have marginally greater net benefits, at $206
million. Not shown in the table, however, are the substantial
unmonetized benefits the 2 night provision is expected to have due to
the circadian advantages of nighttime sleep. As noted in Section 6.4 of
the RIA, these additional benefits were too complex to be quantified
and monetized reliably, but could only be beneficial both to driver
health and to highway safety. They would almost certainly be large
enough, though, to ensure that the net benefits of the rule are
improved by the inclusion of the 2 night provision. Similarly, the net
benefits of a package that excluded the 30 minute break provision
appears to be slightly greater than the net benefits of the Option 3
package, at $206 million. Again, the 30 minute break provision is
expected to provide very substantial crash reduction benefits that
could not be included in the analysis. These benefits, as noted in
Section 6.4, are related to the short-term reductions in crashes
provided by the break's restorative effects on alertness. If these
short-term benefits could be monetized and added to the break's effects
on cumulative fatigue, they would almost certainly show it to be a
cost-beneficial addition to the rule. Table 3 also presents the
difference for each option when the provisions are considered
separately or as a package.
These tables also make clear that under most assumptions about
current sleep levels, moving to 10-hour driving time would result in
lower net benefits, relative to an 11-hour driving time. Comparing
Option 2 to Option 3, allowing only 10 hours of driving would increase
costs substantially, without a commensurate increase in benefits.
Table 1--Summary of Annualized Costs and Benefits for Rule Options (7 Percent Discount Rate)
[Millions 2008$]
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Option 2: 10 Option 3: 11 Option 4: 9
hours of driving hours of driving hours of driving
allowed allowed allowed
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Total Costs............................................... $1,000 $470 $2,290
Benefits with Low Sleep................................... 1,410 910 2,240
Benefits with Medium Sleep................................ 980 630 1,500
Benefits with High Sleep.................................. 550 350 770
Net Benefits with Low Sleep............................... 400 440 -50
Net Benefits with Medium Sleep............................ -20 160 -790
Net Benefits with High Sleep.............................. -450 -120 -1,520
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Note: Totals do not add due to rounding.
Table 2--Summary of Annualized Costs and Benefits for Rule Options (3 Percent Discount Rate)
[Millions 2008$]
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Option 2: 10 Option 3: 11 Option 4: 9
hours of hours of hours of
driving driving driving
allowed allowed allowed
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Total Costs..................................................... $1,000 $470 $2,290
Benefits with Low Sleep......................................... 1,690 1,130 2,620
Benefits with Medium Sleep...................................... 1,110 750 1,630
Benefits with High Sleep........................................ 530 370 630
Net Benefits with Low Sleep..................................... 690 660 340
Net Benefits with Medium Sleep.................................. 110 280 660
Net Benefits with High Sleep.................................... -470 -90 -1,650
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Note: Totals do not add due to rounding.
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Table 3--Component and Interaction Costs, Benefits and Net Benefits For Option 3 (11-Hour Driving Allowed)
[Millions 2008$]
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Health
Safety benefits
benefits (13 (medium sleep
Change from current rule baseline Costs * percent level, 7 Net benefits *
fatigue) percent
discounting)
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7-day restart alone............................. $342 $227 $318 $204
2-night restart alone........................... 51 35 38 22
30-minute break alone........................... 94 72 94 72
Sum of Option 3 provisions, taken separately.... 487 334 450 297
Option 3 analyzed as a package.................. 426 282 349 205
Overlap among Option 3 provisions (difference 62 52 102 92
between sum of separate provisions and package)
Sum of 7 day and 2 night provisions, taken 393 262 356 225
separately.....................................
7 day and 2 night provisions, analyzed as a 393 260 340 206
package........................................
Overlap between 7 day and 2 night provisions 0 2 17 19
(difference between sum of separate provisions
and package)...................................
Sum of 7 day and 30 minute provisions, taken 436 299 412 276
separately.....................................
7 day and 30 minute provisions, analyzed as a 374 253 328 206
package........................................
Overlap between 7 day and 30 minute provisions 62 47 84 69
(difference between sum of separate provisions
and package)...................................
Sum of 2 night and 30 minute provisions, taken 145 107 132 94
separately.....................................
2 night and 30 minute provisions, analyzed as a 145 95 127 76
package........................................
Overlap between 2 night and 30 minute provisions 0 12 5 17
(difference between sum of separate provisions
and package)...................................
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* Does not include the $40 million in reprogramming costs.
Note: Totals do not add due to rounding.
E. Overview of Major Comments and Agency Responses
FMCSA held a public listening session and an online comment and
question forum from noon to midnight on February 17, 2011, and accepted
comments, until June 8, 2011, on the NPRM and on four studies later
posted to the docket. The Agency received about 21,100 unique comments,
mostly from drivers, carriers, and industry associations. After FMCSA
reopened the comment period on May 9, 2011, it received 14 comments on
the four studies discussed in that notice. A summary of the comments
and the Agency's responses are presented in Section IV ``Discussion of
All Comments'' of this preamble. Table 4 presents the data on the
number and type of commenters. Table 5 presents the number of comments
on each issue. As indicated in the table, no single rule provision drew
comments from a majority of commenters.
Table 4--Analyzed Submissions by Commenter Type
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Number of
Commenter type unique Number of form Total number
submissions letter copies of submissions
----------------------------------------------------------------------------------------------------------------
Drivers......................................................... 18,875 2,209 21,084
Owner-Operators................................................. 273 3 276
Carriers........................................................ 846 238 1,084
Individual Citizens............................................. 740 334 1,074
Other Industry.................................................. 65 6 71
Trucking Associations........................................... 59 1 60
Other Trade Associations........................................ 62 1 63
Federal Agency.................................................. 5 0 5
Federal Elected Official........................................ 21 2 23
State Government................................................ 4 0 4
Law Enforcement................................................. 5 0 5
Safety Advocacy Group........................................... 10 0 10
Other Advocacy Group............................................ 3 0 3
Anonymous....................................................... 113 10 123
Other........................................................... 25 2 27
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Total....................................................... 21,106 2,806 23,912
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Note: Totals do not include 546 non-germane, non-responsive, or duplicate submissions.
[[Page 81139]]
Table 5--Issues Addressed by Commenters
------------------------------------------------------------------------
Number of unique
Issue submissions
------------------------------------------------------------------------
Generally agree or disagree with the proposed rule:
Agree (w/o substantive comment)................... 601
Disagree (w/o substantive comment)................ 8,028
Driving time.......................................... 4,633
Breaks................................................ 2,569
Duty time............................................. 3,112
Driving window........................................ 598
Restart............................................... 4,776
On-duty definition:
Support change to definition...................... 109
Oppose change to definition....................... 23
Other comments on definition of on-duty........... 30
Sleeper berth:
Oppose current rule (want shorter splits)......... 594
Oppose current rule (oppose any splits)........... 14
Other comments on sleeper berth use............... 186
Penalties............................................. 66
Changes in Sec. 395.1(e)(2) and (o):
Sec. 395.1(e)(2)................................ 13
Sec. 395(o)..................................... 4
Compliance dates...................................... 9
Cost-benefit analyses................................. 388
Impacts on the economy................................ 10,343
Comments on fatigue research presented................ 84
Comments on additional fatigue studies posted on 14
May 6, 2011......................................
Comments on health research presented................. 24
Comments beyond the scope of the rule:
Parking........................................... 1,028
Payment by mile................................... 184
Shippers.......................................... 550
Electronic On-Board Recorders (EOBRs)............. 499
Other out-of-scope issues......................... 785
Other comments........................................ 679
Request extension of comment period............... 2
Request public meetings/outreach.................. 3
Oilfield exemption................................ 44
10-hour off-duty time (shorter, longer)........... 205
One-size-fits-all (different rules for teams, 442
locals, etc.)....................................
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The National Transportation Safety Board (NTSB), the National
Institute of Occupational Safety and Health (NIOSH), and safety
advocacy groups generally supported the rule, as did many of the
citizens who commented. The industry, however, almost uniformly opposed
the proposed changes. The industry commenters made two overarching
arguments in opposing the provisions. First, they argued that the
industry has never been safer, as indicated by the declines in crashes
and crash rates and, therefore, that the 2003 rule has at least not
made the industry less safe. Second, they stated that the rule changes
would impose substantial costs on the industry, make night deliveries
difficult, increase congestion, and lower driver incomes.
The industry also took the position that the 11th hour of driving
time is used far less than FMCSA assumed in its economic analysis, that
most drivers use the 34-hour restart provision to make recordkeeping
easier and for flexibility, not to work the maximum number of hours,
and that drivers already take breaks. The industry stated that the data
do not support the claim that the 11th hour of driving represents a
higher risk than the 10th.
FMCSA acknowledged the decline in crashes and crash rates in the
NPRM, but stated then, and reiterates now, that the decline in crashes
and crash rates for both trucks and cars started in the late 1970s and
has continued for both types of vehicles. The declines tend to be
sharper during periods of economic recession, but other factors, such
as improved vehicle and road design, are generally considered to have
contributed to reductions. Furthermore, the significant decrease in
truck crashes may not necessarily translate into significant decreases
in fatigue-related crashes. FMCSA believes that the 2003 rule, which
limited the duty period and lengthened the off-duty period, has
certainly not diminished safety, but the recent declines in crashes
cannot be specifically attributed to that rule. More importantly,
despite the improvement, 3,380 people were killed in truck crashes in
2009 (including 503 CMV drivers) and 74,000 were injured. Based on
preliminary reports from the National Highway Traffic Safety
Administration (NHTSA), the number of fatalities for truck-related
crashes in 2010 rose by 8.7 percent to 3,675. Although historically
low, the numbers are still far too high.
On the economic impact of the rule, industry comments and claims
were internally contradictory (see Section IV. ``Discussion of All
Comments,'' B. ``Economic Impacts'' of this preamble for a detailed
discussion). The American Trucking Associations (ATA), other industry
associations, carriers, and the economic analysis commissioned by ATA
(Edgeworth) \1\ argued that
[[Page 81140]]
FMCSA's economic analysis had overstated the use of the 11th hour and
restart provisions. ATA and other industry commenters argued that the
low use of the provisions meant that fatigue was not a problem, but
that changing the provisions would impose high costs. The Edgeworth
study submitted by ATA, however, recognized that if the use of the
provisions was less than FMCSA had estimated, both the costs and
benefits of the rule would also be lower than FMCSA had estimated.
---------------------------------------------------------------------------
\1\ References to studies, reports, or other publications
mentioned in this final rule use only the lead author's last name or
another short descriptive reference that may be used by the reader
to reference the material in the ``Bibliography'' in Section VII at
the end of this preamble. The lead author's professional titles or
degrees are not shown. For example, Edgeworth references a data
source described fully in the bibliography section later in this
final rule.
---------------------------------------------------------------------------
In September 2010, ATA submitted data to the HOS docket based on
analyses of duty time for drivers. In the first sample, ATA looked at
records for 3 months for over 118,000 drivers, mostly from the
truckload sector; the data indicated that drivers were averaging 43.6
hours on duty in 7 days. In a smaller data set (149 drivers and records
for 1 month), ATA reported that the drivers averaged 57.5 hours on duty
in 8 days (which is the equivalent to 50.3 hours in 7 days). ATA
concluded that drivers were using the restart not to maximize hours,
but rather to take extended off-duty periods.\2\ If drivers are working
as little as the ATA data and other comments indicate, the changes to
the restart provision will have little impact because the provision
only affects drivers who are working longer hours week after week. The
restart does not simplify bookkeeping. Unless a driver knows that he is
working less than 60 hours a week (e.g., a regular 10-hour day, 5 days
a week), he must keep a running 7- or 8-day total of on-duty hours to
be sure he is within the limits regardless of the restart provision or
the changes this rule makes to it. If a driver takes 34 hours or more
off, he simply has a new point from which to keep the total, but he
still needs to keep track of his total hours if he could be pressing
the limits. Many drivers do these calculations in their heads without
needing to write them down. FMCSA believes that this provision will not
result in a paperwork burden increase. If drivers are not using the
restart to gain hours of work, their productivity will not be affected
by today's rule. No one needs the restart to take the ``extended off-
duty period'' cited by ATA; the restart is only useful for drivers who
are trying to minimize their off-duty time. Even those drivers will not
have their work seriously curtailed in a single week. Under today's
rule, a driver will still be able to work up to 81 hours in a single
week and will be able to average 70 hours of work a week over time.
---------------------------------------------------------------------------
\2\ Stephenson, B., ATA, email to Tom Yager, FMCSA, September 8,
2010. FMCSA-2004-19608-4026.
---------------------------------------------------------------------------
Industry claims that the 2-night requirement for drivers would
affect nighttime deliveries and increase congestion are also
unsupported. Given ATA's data, the substantial majority of drivers do
not need the restart and would not be subject to the requirement. These
drivers can continue to work their usual schedules, including making
deliveries at night 7 days a week. Even drivers who are working maximum
schedules will still be able to drive and make deliveries at night 5
days a week.
In general, although many industry commenters stated that they
would suffer substantial economic impacts, they submitted no data or
explanations. The rule will reduce maximum weekly driving time by no
more than 5 percent for the few drivers who drive longer hours. It is
difficult to see how these provisions, if they are used as little as
industry stated, could produce reductions in revenues of 10 to 40
percent as some commenters claimed, particularly given that drivers who
do work the longest hours rarely are able to do so on a continuing
basis. On the issue of driver incomes, only those drivers working the
longest hours will lose income and then only if they have been able to
drive long hours in consecutive weeks.
On the health benefits of the rule, ATA submitted the opinion of
one researcher who disputed the Agency's use of data in a study that
the researcher co-authored dealing with the effect on mortality of
improvements in sleep (Cappuccio). The lead author of the same study,
however, supported FMCSA's analysis and considered it conservative
(Ferrie). Industry commenters did not otherwise attempt to address the
issue of the health impacts of long work hours and sleep loss. FMCSA
notes that the industry chose to ignore an ever increasing body of
research that links long hours of work to sleep loss and an increased
risk of obesity, diabetes, and cardiovascular diseases.
Similarly, on the risk of long hours in general, the industry
dismissed the many studies, including the new research discussed below,
that have found that risk increases with hours worked. Industry did not
submit any statistically usable data on their own crash rates. NIOSH
drew attention to the considerable body of research in other sectors
that has also found that risk increases with hours worked. Like workers
in other sectors, drivers are susceptible to fatigue, and, therefore,
these other studies should be considered in weighing the evidence for
increasing risk.
In summary, the motor carrier industry did not provide evidence to
support the dire economic consequences it claimed would flow from the
Agency's HOS proposal. FMCSA believes that the changes adopted today
are clearly supported by the evidence on the risk of fatigue and
fatigue-related crashes associated with long daily and weekly hours, on
the loss of sleep associated with long work hours, and the health
effects associated with sleep loss.
II. Legal Basis
This 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 promulgated 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 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
[[Page 81141]]
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)). This rule would improve both highway safety and
the health of CMV drivers.
This 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 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 rule.
III. Background and Description of the Trucking Industry
The history of the HOS regulations has been discussed at length in
previous rulemakings and will not be repeated here. See the May 2,
2000, NPRM for a detailed history of the earlier provisions (65 FR
25540) and the December 29, 2010, NPRM of this final rule for the more
recent history (75 FR 82170).
FMCSA held a total of five public listening sessions prior to
publishing the NPRM as well as one session after publication to gather
information and opinions. These listening sessions were webcast, the
Agency accepted calls during the sessions, and the Agency held an
online comment and question forum on February 17, 2011, from noon to
midnight to give more people a chance to participate. Transcripts of
the listening sessions and the online comment and question forum are in
the docket.\3\ As noted above, more than 21,000 comments were submitted
to the docket. Each comment was read and the positions of commenters on
each issue they addressed were logged.
---------------------------------------------------------------------------
\3\ Transcripts of the listening sessions and the online comment
and question forum may be found in the online docket on
www.regulations.gov at:
a. January 19, 2010 Listening Session--FMCSA-2004-19608-3854.
b. January 22, 2010 Listening Session--FMCSA-2004-19608-3860.
c. January 25, 2010 Listening Session--FMCSA-2004-19608-3855.
d. January 28, 2010 Listening Session--FMCSA-2004-19608-3856.
e. March 26, 2010 Listening Session--FMCSA-2004-19608-3904.
f. February 17, 2011 Listening Session and Online Comment and
Question Forum--FMCSA-2004-19608-9393.
---------------------------------------------------------------------------
Trucking Industry
The trucking industry is comprised of 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; truckload versus less than
truckload (LTL); long-haul versus short-haul. 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 (line-haul) 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 dominant pattern for line-haul
drivers in LTL operations is driving five nights a week with the
weekend (or at least 2 consecutive days) at home. Some firms will have
one group of drivers working Monday through Friday nights and another
group working Sunday through Thursday nights. Daytime driving sometimes
occurs when, for example, a trailer is to be moved to a terminal that
cannot be reached in a single, overnight run.
The truckload 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,
transportation from one place to another being booked and sold 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 nighttime driving. Short-haul drivers operate within a local
area; most are not exclusively nighttime 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 sectors are affected by different parts of the HOS
rules. Most short-haul carriers do not use all of the allowable driving
hours because they spend a good part of each day loading and unloading
the truck to make local deliveries. These drivers also generally work 5
days per week and less than 12 hours a day, which makes the restart
unnecessary. The local part of LTL operations has a similar work
pattern. The line-haul LTL runs are between terminals located at the
outer edges of metropolitan areas or in smaller cities. Like local
drivers, except in peak season, they usually work 5 days a week.
Private carriage is almost always limited to trips of less than 500
miles or 10 hours of driving. There are far more long runs in the
truckload sector, but even this sector moves much of its cargo less
than 500 miles. The carriers most affected by the HOS rules are the
truckload carriers that operate most or all of the time on a random
basis, picking up a load for delivery without knowing where the next
load will be.
IV. Discussion of All Comments
FMCSA received more than 20,000 comments, but no single provision
of the NPRM drew responses from a majority of the commenters. About
4,000 commenters addressed driving time and the restart; about 3,000
addressed breaks and duty time limits (most of these wanted a return to
the pre-2003 cumulative duty time); approximately 200 commented on the
on-duty definition, and about 100 commented on the penalty provision.
Most people who took the time to comment opposed some part of the
proposal. About 8,000 comments expressed general opposition to the
rule.
The primary arguments made by the commenters were limited and
applied to the three main provisions of the NPRM--driving time, the
restart, and breaks. To avoid redundancy, in this section the
overarching arguments will be discussed first, incorporating specific
points related to the provisions. The arguments that apply to a single
provision will then be presented. Comments on the economic analysis are
addressed in Section VI ``Required Analyses'' of this preamble.
The motor carrier industry argued that the declining fatality rate
for truck-involved crashes since 2004 demonstrates that the current HOS
rule is safe and should not be changed. The main industry argument,
however, was that changing the rule would produce serious economic
consequences for carriers, drivers, shippers, receivers, and consumers.
On other issues, the industry generally disagreed with the
[[Page 81142]]
notion that drivers are not getting sufficient sleep and that chronic
fatigue is a problem. The industry's only argument on driver health
benefits was to claim that the study used to estimate increased
mortality had been misapplied, a claim that the study's lead author
refuted in a comment to the docket. NTSB, NIOSH, and safety advocacy
groups, all submitted comments to support the proposal in general,
contradict industry arguments, and provide additional research. FMCSA
asked for data on crash experience under the current rule, costs of the
proposed rule, and related matters, but no carrier or association
submitted information that proved to be useful.
A. Safety
Industry commenters made two principal arguments on safety. The
first was a general statement on the improving crash rates of CMVs; the
second was specific to the 11-hour driving limit. This section presents
the comments and response to improving the crash rates. Section
IV.''Discussion of All Comments'' E. ``Driving Time Limit'' discusses
the 11-hour issue.
Comments. Many industry associations, carriers, and drivers stated
that the 2003 rule has improved (or at least not reduced) safety and
pointed, as proof, to the decline in truck crash rates that occurred
from 2004 to 2009. ATA stated that truck vehicle miles traveled (VMT)
increased during that period, countering any argument that the economy
was the cause of the decline in crashes. Some carriers stated that
their crash rates (variously reported as preventable, recordable,
injury, or all crash rates) declined over similar periods. Two
commenters noted that HOS compliance has improved as seen in roadside
inspection data.
Advocates et al., \4\ the Insurance Institute for Highway Safety
(IIHS), and another commenter pointed out that the crash rates began
falling well before 2004 and that the passenger vehicle fatality rate
has fallen faster than the truck fatality rate in recent years. IIHS
stated that there was no apparent change in the long-term trend
coincident with the 2003 rule change. IIHS also noted that there had
been a general downward trend in CMV driver deaths, but that the number
rose between 2003 and 2006, before dropping in 2007 and 2008.
---------------------------------------------------------------------------
\4\ Comments for Advocates for Highway and Auto Safety, Public
Citizen, Truck Safety Coalition, and the International Brotherhood
of Teamsters, filed jointly.
---------------------------------------------------------------------------
FMCSA Response. Crash rates for trucks and passenger vehicles have
been falling since the late 1970s. The reasons for the decline are
complex and cannot be attributed to any single factor. It is very
likely that improved vehicle safety design for cars and improved road
design have contributed to the reduction. Injuries and fatalities have
also decreased with greater use of seat belts by car and truck drivers.
The rates have been steadily declining over a long period, well before
the HOS rules changed.
Economic conditions do play a part in the number of crashes. The
large decrease in truck-related fatality rates from 2007 to 2009 is not
unprecedented; similar year-to-year percentage decreases in fatal crash
rates occurred in 1980, 1982, 1991, 1992, and other periods of
recession. ATA argued that the recent recession could not explain the
decline in fatality rates because truck VMT actually increased despite
the recession. The increase in truck VMT cited by ATA and others,
however, is an artifact of a change in the definition \5\ of ``truck''
used by the Federal Highway Administration (FHWA) in estimating VMT,
which resulted in an addition of almost 1.9 million vehicles (about
370,000 combination vehicles and 1.5 million straight trucks) and their
associated VMT to the ``truck'' population. In estimating the number of
trucks, FHWA has defined that term to mean any vehicle other than a bus
with a gross vehicle weight rating greater than 10,000 pounds. The
population of ``trucks,'' therefore, now includes mobile homes, large
pickups, cab chassis, and various other larger vehicles, most of which
are not used by motor carriers, except for short-haul pickups and
deliveries.\6\ The changed definition increased the number of
combination trucks by 17 percent and the number of single-unit trucks
by about 22 percent (for 2008). The change increased 2008 VMT for
combination trucks by about 28 percent and VMT for single-unit trucks
by about 50 percent. FHWA revised VMT estimates for previous years to
reflect its new methodology and allow year-to-year comparisons. These
revised VMT numbers show that combination truck VMT peaked in 2007,
fell slightly in 2008, and fell sharply in 2009. This pattern obviously
reflects the decline in demand for transportation associated with the
recent recession.
---------------------------------------------------------------------------
\5\ The FHWA 2009 VMT estimates and its revision of the
estimates for 2000-2008 were posted in April 2011 in Table VM-1 of
Highway Statistics (annual editions) (http://www.fhwa.dot.gov/policyinformation/statistics.cfm).
\6\ A combination vehicle is any vehicle towing a trailer. Semi-
trailers are combination trucks as are pick-ups, cars, or straight
trucks towing a trailer; for example, a sport utility vehicle towing
a boat is considered a combination vehicle.
---------------------------------------------------------------------------
These drops in VMT are consistent with other data that reflect VMT
for trucks. Diesel fuel sales for over-the-road-vehicles, which are
primarily for trucks, dropped 14 percent from 2007 to 2009, according
to data from the Energy Information Administration. The Census Bureau's
Annual Survey of the Service sector indicated that the trucking
industry revenues dropped by about 19 percent from 2008 to 2009 and VMT
for for-hire carriers by 15 percent.\7\ ATA's own trucking activity
index (year 2000=100) lists the mileage index for truckload carriers in
December 2003 as 100.4 seasonally adjusted; the index fell slightly
(less than 10 percent) until the middle of 2008 when it began to fall
sharply, reaching a low point of 71.3 in April 2009.\8\
---------------------------------------------------------------------------
\7\ U.S. Census Bureau, ``Truck Transportation, Messenger
Services, and Warehousing--NAICS 48/49 http://www2.census.gov/services/sas/data/48/2009_NAICS48.pdf.
\8\ ATA, Economic Statistics Group, ATA Trucking Activity Report
Historical Truckload Sector Database as of March 2011. Available
online at http://www.atabusinesssolutions.com/p-24-ata-trucking-activity-report-trac.aspx.
---------------------------------------------------------------------------
A study conducted by the National Highway Traffic Safety
Administration showed that large fatality declines (for all vehicles)
tended to coincide with areas with higher increases in the unemployment
rate, which limits driving, particular long-distance driving
(Longthorne). A similar study conducted by the University of Michigan
Transportation Research Institute attributed the decline to a number of
factors (Sivak). The study noted that crashes (for all vehicles) had
fallen more sharply on rural interstates than on other roads, which
they stated was consistent with a decline in long-distance leisure
travel. Similarly, crashes during rush hours dropped more than crashes
at other times, consistent with reduced traffic. They noted that the
decline in truck crashes was consistent with the decline in freight
traffic.
The assumption in the industry argument is that fatigue-related
crashes, which are the target of the HOS rules, have declined as
sharply as crashes as a whole. The data from the Trucks Involved in
Fatal Accident reports, however, indicated that the trend in fatigue-
coded fatal crashes has not been as consistent as the decline in
crashes. The highest percentage of fatigue-coded fatal crashes occurred
before the 2003 rule in 1999 and 2000 (both 2.1 percent) followed by 2
percent in 1994 and 2007, before and after the rule; the lowest rate
[[Page 81143]]
occurred before the rule (1.4 percent in 2001) followed by 1.5 percent
in 2002, 2004, and 2006, before and after the rule.
While the declines in crashes are welcome, they are not sufficient.
The IIHS commented that driver deaths increased after the 2003 rule was
implemented. FMCSA notes that drivers are far more likely to die in
single-vehicle crashes than in multi-vehicle crashes and single-vehicle
crashes are more often associated with driver fatigue. The more recent
sharp drop in driver deaths may be the result of less general traffic
and lower demand for trucking services, which may have reduced fatigue
and trucks on the road, or other factors, such as carriers laying off
their riskier drivers and significantly higher truck driver use of seat
belts. It remains the case, however, that almost 300 CMV drivers died
and 6,000 were injured in single-vehicle crashes in 2009. As noted
above, 3,380 people died in truck crashes and 74,000 were injured in
2009. These numbers may be low historically, but they are still too
high. Furthermore, preliminary reports from NHTSA indicate 3,675 people
were killed in truck-related crashes in 2010, an increase of 8.7
percent over 2009.
B. Economic Impacts
Economic arguments formed the core of the comments on the proposed
rule. This section discusses those arguments, both the general
statements and the specific claims about individual provisions.
Comments on General Economic Impacts. Industry associations,
carriers, and drivers stated in general that the rule as proposed would
do the following:
Reduce productivity of carriers.
Reduce driver incomes.
Affect shippers, receivers, and consumers.
Increase demand for more drivers and put more
inexperienced drivers on the road.
Increase congestion.
The majority of commenters on these issues stated that the NPRM--
particularly the 10-hour driving time, the 2-night requirement for, and
the weekly availability of, the 34-hour restart--would have serious
negative financial impacts on carriers and affect the reliability of
the industry. Many commenters believed these provisions would reduce
operating resources (drivers' hours) and increase the cost of goods
sold (adding drivers, equipment, and operating costs), which could also
result in delays in deliveries to customers and loss of business. Many
commenters seemed to assume that the two-night limit on the restart
would eliminate nighttime deliveries. Commenters generally claimed
that, to accomplish the same amount of productivity, the proposed
regulations would require carriers to add more equipment and drivers to
offset the decrease in available hours per driver, which would also
lead to increased fuel and maintenance costs. Carriers predicted
varying degrees of loss--from 4.72 percent reduction in utilization to
25 to 33 percent decline in revenues--and increased costs ranging from
$10,000 to $25,000 per truck. Carriers said that they would have to
hire new drivers and buy new trucks; their estimates of the effect on
revenues ranged from considerably less than 1 percent to 25 percent or
more. Shippers and shipper associations emphasized the impact on supply
chains, the need to reconfigure schedules and routes, and the costs
associated with those changes.
FMCSA Response. The Agency relied on published data and reports
from a range of sources for the NPRM and this final rule. These
documents did not include any information indicating that the adverse
economic outcomes described above were likely to occur. The Agency
estimates that this rule would reduce productivity by 2.7 percent with
a 10-hour driving limit, and by 1.2 percent with an 11-hour limit. In
either case, this estimate is significantly lower than that of many
industry commenters, but given that the Final Rule is functionally
equivalent to Option 3 (11 hours), the lower impact of 1.2 percent
applies. It is true that some carriers, depending on their operations,
may experience greater impacts, but others will experience more
moderate impacts. Our estimate for the total costs of the rule are also
much lower than those claimed by the industry: we estimate that the
total cost of the rule would equate to roughly one-third of one percent
of industry revenue, not the 25 to 33 percent declines stated by the
industry. To put this figure into context, a 3 cent rise in the price
of diesel fuel would impose greater costs on the long-haul segment of
the industry than this rule. Data submitted by ATA to the docket, while
not complete enough to be used to re-estimate the costs of the rule,
indicates that drivers may be working less intensely than the Agency
assumed in conducting the analysis. If that is the case, the costs (and
benefits) would be lower than the Agency estimates, as ATA's consultant
acknowledged in its analysis.
Although commenters made a wide range of claims for the cost of the
NPRM, they provided little data to support those claims and few
explanations of how the rule changes could affect their operations to
the degree claimed. A number of publicly traded motor carriers
submitted cost estimates that, when compared to their reported
revenues, were found to represent a small fraction of 1 percent of
their revenues, which is much less than FMCSA had estimated in its
economic analysis. None of the commenters provided an explanation of
how a reduction in weekly driving hours of about 5 percent for those
working the longest hours could produce revenue declines of the
magnitude claimed.
Most of the claims seem to imply that every truck and driver is
working the maximum hours every day. Commenters addressing other issues
(including many of the same commenters) indicated that use of the 11th
hour of driving is considerably lower than FMCSA estimated (on about 10
percent of the runs compared to the 21 percent FMCSA had estimated) and
that restarts are generally longer than 34 to 40 hours. The critique of
the RIA submitted by ATA and cited by many industry commenters claimed
that FMCSA had overstated the number of drivers working long hours.
Data submitted by ATA based on more than 118,000 drivers indicate
average work weeks of less than 44 hours; a smaller sample of drivers
that ATA submitted still averaged less than 58 hours in 8 days (or
about 50 hours in 7 days). The industry, in effect, made two
contradictory arguments--that the long hours allowed by the current
rule are rarely used so that fatigue is not a problem and rule changes
are not necessary, and that any reduction in those hours will have
serious economic impacts. Both arguments cannot be true.
Any driver who is working less than 60 to 70 hours a week does not
need a restart and thus is unaffected by the limitations on the restart
requirement in this final rule. Revenues generated by those drivers
will not be affected. The restart does not simplify bookkeeping. Unless
a driver knows that he is working less than 60 hours a week (e.g., a
regular 10-hour day, 5 days a week), he must keep a running 7- or 8-day
total of on-duty hours to be sure he is within the limits regardless of
the restart provision or the changes this rule makes to it. If a driver
takes 34 hours or more off, he simply has a new point from which to
keep the total, but he still needs to keep track of his total hours if
he could be pressing the limits. Many drivers do these calculations in
their heads without needing to write them down. This calculation, at
any rate, is
[[Page 81144]]
both simple (subtracting one day's hours from the running total, then
adding another day's hours to the result) and can be conducted during
waiting or refueling time, and so would result in de minimis effort and
cost to the driver. Furthermore, any driver who only takes a restart
once a week would not have to keep a tally of hours back beyond the
previous restart, because that restart would reset the driver's
cumulative available hours under the new rule, as it does under the
current rule. Any driver who works relatively moderate hours would be
unlikely to take multiple restarts in a week, or have to worry about
violating the cumulative weekly hour limit.
The two-night requirement will not stop overnight deliveries; even
a driver who is working maximum hours and needs a restart could still
make nighttime deliveries 5 days a week. Drivers who are not working
longer hours can continue to make nighttime deliveries every working
night because they do not need a restart and are not subject to the 2-
night requirement. This group of drivers includes local delivery
drivers whose schedules may start in the early hours of the morning and
LTL line-haul drivers. Long-haul truckload drivers, who may prefer to
drive at night because there is less traffic, have schedules set by
shippers and receivers and may not routinely drive at night. J.B. Hunt
stated that 32 percent of its drivers occasionally drove at night;
these drivers did so on average only 6 nights a month.
Industry comments claimed that the reliability of service would be
affected, but provided no explanation of why this would occur.
Reliability is the ability to predict when a shipment will arrive.
Differing limits on work time may alter arrival times, but would not
affect the ability to estimate an arrival time.
Carriers and drivers reiterated in comments on the NPRM that long-
haul truckload drivers spend anywhere from 10 to 50 percent of their
time each week waiting to be loaded and unloaded, time for which the
drivers are not usually paid. The National Small Shipments Traffic
Conference admitted that the 2003 rule's 14-hour consecutive duty limit
had caused some receivers to unload the product before they needed the
product for the store shelves or production line rather than letting
the shipments sit in the truck until needed. In essence the association
was confirming the drivers' claim that they are treated as moving (and
free) warehouses. Carriers stated that the shortening of wait time or
detention that occurred after the 2003 rule has eroded and that wait
times have increased again. If the drivers and carriers are correct,\9\
the supply chain includes inefficiencies that regularly absorb more of
drivers' on-duty time than all of the changes adopted in this final
rule. The relatively small impacts of the rule could be offset and the
utilization of trucks and drivers improved if shippers and receivers
set and kept appointments for loading and unloading instead of
expecting drivers to put in long unpaid hours waiting. FMCSA has no
obligation to allow drivers to work excessively long hours a week to
compensate for delays in the supply chain.
---------------------------------------------------------------------------
\9\ See ``Commercial Motor Carriers: More Could Be Done to
Determine Impact of Excessive Loading and Unloading Wait Times on
Hours of Service Violations,'' U.S. Government Accountability
Office, January 2011, Report No. GAO-11-198, http://www.gao.gov/new.items/d11198.pdf and the letter report, ``U.S. Department of
Transportation Statement on Government Accountability Office (GAO)
Report'' for Report No. on GAO-11-198, May 23, 2011, available in
the docket. The DOT letter report was sent to the Office of
Management and Budget (OMB) and four Congressional committees,
stating that FMCSA is planning to examine the extent to which
detention time contributes to drivers violating hours of service
requirements and that it plans to initiate the study in Fiscal Year
2012, contingent on resource availability, in response to the GAO
report.
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Comments on Impact on the Number of Trucks. Commenters argued that
taking an hour away from daily driving time would result in more trucks
being used to move the same amount of freight. They stated that more
trucks on the road would increase costs to carriers, and that those
cost increases would be passed to shippers and ultimately to consumers
in the form of higher prices. The National Association of
Manufacturers, a trucking association, and a carrier noted that
reducing the daily driving limit to 10 hours would also increase costs
to manufacturers and retailers, as they would have to carry additional
inventory, at additional costs, to ensure that they have products on
their store shelves, since reliability of service could be interrupted.
Commenters, including the Owner Operator Independent Drivers
Association (OOIDA), also argued that changing the 11-hour driving time
limit would increase transit time and reduce productivity and on-time
deliveries because current distribution centers and routes are built
around the current HOS rules. Five commenters that ship products with a
limited shelf life or peak ripeness argued that the reduction of daily
driving time to 10 hours would severely strain their ability to get
fresh product to their customers by increasing days of transit time. A
carrier that transports livestock expressed concern over increased
livestock deaths that may result with a decrease in daily drive time,
due to drivers being forced to stop to take their break without being
able to provide the animals with water or relief from the summer heat.
Commenters also argued that reducing daily driving time would reduce
drivers' incomes.
FMCSA Response. FMCSA sees no reason why changing the daily driving
limit from 11 hours to 10 hours, a limit that was in effect for more
than 60 years before 2003, would reduce the reliability of motor
carrier service. Reliability depends on the carrier's ability to
estimate accurately how long a trip will take, which they can do
regardless of the driving time limit. However, FMCSA acknowledges that
some businesses have built their distributions systems to optimize
driving times under the 11-hour limit and that they might face
significant costs to maintain their current delivery times if limits
were reduced. As discussed above, the Agency has not adopted a 10-hour
limit at this time.
The concerns expressed by livestock haulers that a mandatory rest
break of at least 30 minutes would increase the risk of livestock
deaths seem overstated. Federal law allows carriers transporting
animals to keep them confined for up to ``28 consecutive hours without
unloading the animals for feeding, water, and rest'' (49 U.S.C.
80502(a)(1)), and there are exceptions even to that standard (Sec.
80502(a)(2)). This statute is obviously intended to protect animals
during transportation. Under these circumstances, it is difficult to
see how a half-hour break taken no later than 8 hours after the driver
comes on duty--and presumably not much longer than that after the
animals were loaded--could have dire consequences.
Comments on Congestion and Parking. Many commenters stated that a
10-hour driving limit would place more trucks on the road, increase
congestion, and worsen an already existing truck parking shortage at
truck stops. They also argued that the 11-hour driving limit is very
important to them because they use the 11th hour to find safe parking
where they can take their 10 hours off duty. Other commenters argued
that the 11th driving hour is rarely used, but that it provides much-
needed flexibility allowing drivers time to get home or find parking
after unforeseen events during their shift, such as congestion,
inclement weather, or the needs/demands of shipper, receiver, carrier
or dispatch. Commenters also implied that night drivers would switch to
day driving to shorten their restarts, which would increase congestion.
Commenters stated that the proposed 2-night midnight to 6 a.m. period
for restarts would result in
[[Page 81145]]
more trucks entering the traffic stream at 6 a.m., thereby increasing
congestion.
FMCSA Response. It is difficult to see how the change in the
driving limit or the 2-night requirement would seriously affect the
number of trucks on the road and, therefore, how the changes would
increase congestion or the shortage of parking. Because the Agency is
retaining the 11-hour driving limit, the commenters' concerns about
increased congestion related to a need for more trucks will not be
realized. An increase in rush hour traffic because of the 2-night
provision is unlikely. Most drivers who routinely work at night (LTL
and local delivery) do not work enough hours to require a restart and,
therefore, would not need to change schedules. Truckload drivers do not
drive at night regularly and have more ability to adjust start and stop
time to minimize the impact of the provision on their operations. FMCSA
has also narrowed the required period for those who are affected by the
provision to allow earlier starts, which will further reduce effects on
rush hours.
Most drivers who routinely drive at night are either LTL line-haul
operators or work for local private carriers making deliveries. Neither
of these is likely to switch to day driving nor is there any reason why
they would need to. Drivers need to take a restart, and thus two full
nights off, only if they have worked more than the cumulative hours
allowed under the weekly duty limit (60 hours in 7 days or 70 hours in
8 days). Most of these drivers work few enough hours per week (less
than 60) that, although nominally ``using the restart provision'' by
virtue of taking off a day or a full weekend, they are not using the
restart to gain any additional hours beyond the 60 hours that they
would be allowed without the restart provision. Because they do not use
the restart to increase the hours they are allowed to use, these
drivers can maintain their preferred schedule while still complying
with the HOS rule. In particular, they are not required to have 2
consecutive nights off (although they usually do). Long-haul truckload
drivers may prefer to drive at night, but their schedules are irregular
and determined by their appointment times. Even these drivers,
according to ATA, do not routinely work enough hours to trigger the
need for the restart. When they do work maximum hours, they can still
drive at night 5 nights a week.
Congestion can, at times, be unexpected, but most congestion is
predictable; any driver who will be driving around a major city during
the rush hours knows he will encounter congestion and must therefore
plan for it. Unforeseen weather conditions are covered by Sec.
395.1(b), which can be used to take extra time.
Comments 34-Hour Restart Economic Impacts. On the restart, many
commenters said that the NPRM provision would reduce productivity. In
contrast, Schneider National said the proposal likely would not have a
significant negative effect on productivity, because most drivers take
breaks that are longer than the required off-duty period. However, it
said the 2-night requirement would add costs for the carrier and
inefficiencies for the supply chain, because many drivers will choose
not to restart while on the road, requiring additional ``empty miles''
to get them home. A number of shipper associations stated that the
provision would limit the ability to make deliveries overnight.
Commenters, such as ATA, the National Solid Waste Management
Association, United Parcel Service (UPS), and others, stated that the
proposal would deprive drivers and carriers of scheduling and
operational flexibility. ATA commented that flexibility under the
current rule was especially important for long-haul and irregular route
drivers who may not know their schedules in advance and have little
control over scheduling. Carriers in the construction and fuel delivery
industry also stated they would be adversely affected.
FMCSA Response. After considering numerous comments, FMCSA
shortened the two nighttime periods that must be included in the
restart to 1 a.m. to 5 a.m., which is the core portion of the window of
circadian low for almost everyone. This will provide greater
flexibility than the proposed rule while ensuring that drivers have the
opportunity to obtain 2 nights of sleep while allowing drivers to stop
an hour later than proposed at the beginning of the restart period and
to start an hour earlier than proposed after the restart period. FMCSA
acknowledges that this revised restart provision will slightly reduce
the flexibility available under the previous rule, but recent research
has suggested that 2 consecutive nights off duty would be necessary to
ensure that the drivers who take a restart are adequately rested when
they resume driving.
Schneider National argued that its drivers would not take a restart
with 2 nights on the road and stated that its drivers' restarts
averaged 62 hours, which is more than enough time to cover 2 nights.
Perhaps the largest group of regular night drivers is the LTL line-haul
drivers, who generally work a 5-day week and whose weekend would
normally cover two consecutive nights as a matter of course.
As for general productivity impacts, drivers are still subject to
the 60-hour and 70-hour limits but will still be able to use a 34-hour
restart once a week. A driver working the longest hours will be able to
use a restart to work those hours, but will then have to take more time
off in the next week to compensate. Although this will limit his or her
ability to work maximum hours every week, the commenters suggest that
very few drivers do this. Local fuel delivery drivers are probably not
working enough hours to need a restart as most local drivers work 5-day
weeks. The construction industry is not subject to the restrictions
because it observes a statutorily mandated 24-hour restart (49 CFR
395.1(m)).
Comments on Economic Impact of Breaks. ATA and others stated that
because there is little or no evidence that drivers are not taking
breaks during the course of the workday, requiring breaks at specific
times only reduces flexibility and productivity. Drivers, carriers, the
American Moving and Storage Association (AMSA), and others, argued that
the break provision can decrease efficiency and productivity, prevent
on-time deliveries, and create a longer workday; commenters cited the
difficulty of finding a place to park. FedEx commented that a 30-minute
rest break by the 7th hour after coming on duty would further hinder
local package pickup and delivery drivers operating under Sec.
395.1(e)(1).
FMCSA Response. After considering numerous comments about the
breaks, primarily from team drivers, the Agency extended by one hour
the window in which a break must be taken. The final rule provides that
driving is not permitted if more than 8 consecutive hours on duty--
compared to 7 hours in the NPRM--have passed since the last off-duty
(or sleeper-berth) period of at least 30 minutes, a driver must take a
break of at least 30 minutes before driving. For example, if the driver
started driving immediately after coming on duty, he or she could drive
for 8 consecutive hours, take a half-hour break, and then drive another
3 hours, for a total of 11 hours. Conversely, this driver could drive
for 3 hours, take a half-hour break, and then drive another 8 hours,
for a total of 11 hours. In other words, this driver could take the
required break anywhere between the 3rd and 8th hour after coming on
duty. A driver who plans to drive until the end of the 14th hour and
wants to take only one break will need to take a break between the 6th
and 8th hour after
[[Page 81146]]
coming on duty. Drivers will have great flexibility in deciding when to
take the break. By postponing the latest point at which the break can
be taken from the 7th to the 8th hour, the rule will make it
significantly easier for team drivers to coordinate their sleeper-berth
periods and may enable drivers who do not drive late into their work
shift to dispense with a break altogether. FMCSA has also added an
exception for drivers of CMVs carrying Division 1.1, 1.2, or 1.3
explosives to allow them to count on-duty time spent attending the CMV
as required by Sec. 397.5 but doing no other on-duty work, toward the
break.
If, as the data ATA and others submitted indicated, drivers are
averaging less than 50 hours of driving a week, it is difficult to
understand how a half hour break that can be taken sometime between the
2nd and 8th hour in a 10-hour day could cause any delays unless the
industry is saying that these drivers never stop for a meal or a rest
break during that time. FedEx stated that its drivers average less than
9 hours of driving a day except in peak periods when the average is
slightly less than 10 hours. It seems unlikely that drivers work
essentially non-stop. FMCSA recognizes that drivers on the road may
have to find a safe place to park, but even the drivers working to the
end of the 14-hour window have a 2-hour window in which to take a break
(between the 6th and 8th hour after coming on duty), assuming they take
just one. Drivers working shorter days have progressively longer
windows in which to take the break and meet the requirement. That
should be adequate time to find a safe place to park.
Comments on Economic Impact on Drivers. A large number of
commenters stated that the NPRM would reduce drivers' incomes because
they would be able to drive fewer miles and would lose loads. ATA
claimed that it could cause an income loss of 20 percent in peak
season. Carriers estimated driver losses at anywhere from 8 percent to
40 percent. Two large carriers, however, indicated that the result
would be an increase in driver pay rates to offset the lost hours.
FMCSA Response. A driver who is regularly working the longest hours
will lose hours under the final rule; that is the intention of the rule
changes. Drivers will still be able to average 70 hours a week,
however, which is longer than most people work and, if the industry
data are accurate, longer than most drivers are working. A driver on
the 70-hour/8-day schedule working the maximum hours allowed under the
2003 rule would lose one shift every 2 weeks (11 instead of 12 14-hour
shifts in 14 days). According to the ATA data, very few drivers are
working that hard; those few who do so are apparently not doing it
consistently. The income of drivers who are averaging less than 60
hours a week, let alone less than 50 hours, will not be affected by the
provisions of this final rule. For the drivers working the longest
hours, a reduction in waiting time could enable the drivers to have
more opportunities to drive weekly. The rule reduces the maximum number
of on-duty hours more than it reduces the maximum number of driving
hours (a maximum of 82 hours on duty on average to 70 hours versus a
maximum of about 74 hours of driving time to 70 hours).
An underlying assumption in many of these claims of lost income is
that most shipments are time-critical and that shippers will shift to
teams to ensure delivery. The long waiting times that shippers and
receivers often impose (2-18 hours according to drivers) indicate that
this is not true, as do reports from drivers and others that drivers
will generally try to arrive the night before a pick-up or delivery so
they can be sure to make their appointment times. Teams represent a
relatively small part of the industry, which indicates that most
shippers do not believe the arrival time is so critical that they are
willing to pay the higher rates associated with teams. Shipper surveys
indicate that reliability, not transit time, is more important to
shippers. A 2009 report on trucking stated that ``freight buyers are
more willing now to sacrifice a day or three in transit, at a lower
cost, as long as they and their customers know when shipments will
arrive'' (O'Reilly (2009)). For the 2010 survey, 90 percent of surveyed
shippers identified reliability as their most important criterion when
selecting carriers (O'Reilly (2010)).
Finally, as two carriers stated and as the industry has been saying
in press reports and, for publicly held companies, reported in their
SEC filings, regardless of the rule changes, driver wage rates are
likely to have to rise to attract new drivers to the industry and to
retain the current workforce. A National Transportation Institute
survey found that 80 percent of the carriers that responded expected to
increase driver pay (Cassidy (2010); Isidore). Pay increases may
partially or wholly offset income losses for the limited number of
drivers working the longest hours. FMCSA concedes that the hardest
working drivers may lose income if they drive fewer miles under the
revised rule.
Comments on the Economic Impact on Consumer Prices. Some commenters
expressed concern that the proposed regulations would lead to consumers
paying a higher price for shipped goods, including food products,
because higher costs to carriers would be passed on to receivers and
customers. Other commenters cited concerns about higher prices from the
costs of adjusting scheduling systems and training staff.
FMCSA Response. If carriers have to raise rates to cover additional
costs, those costs will eventually be passed on to consumers. FMCSA
notes, however, that transportation costs represent a relatively small
part of the cost of any consumer item and that the largest contributor
to variability in transportation costs is the price of diesel fuel. As
stated in the NPRM and Regulatory Impact Analysis (RIA), the cost of
the rule changes to the industry is the equivalent of an increase of
less than $0.03 per gallon of diesel for the long-haul segment of the
industry. The U.S. Department of Agriculture indicates that
transportation represents only 2 to 6 percent of each food and beverage
dollar, a percentage which has declined over time (USDA Economic
Research Service). Even if the rule increased transportation costs by
10 percent, that would add less than a penny per dollar to food and
beverage costs. If, as the RIA projects, transportation costs will
increase by less than 0.25 percent, the increase in the price of each
food item will be a very small fraction of a penny. The one-time costs
of adjusting scheduling systems and related items will not add to the
long-term cost of consumer items.
Comments on the Driver Shortage. Commenters stated that the rule
changes would require carriers to hire more drivers at a time when
carriers cannot fill positions and that more inexperienced drivers, who
are less safe, would be on road.
FMCSA Response. FMCSA recognizes that the rule may lead to more
driver positions. Whether the driver shortage that commenters cited is
real is a matter of considerable debate in the industry. OOIDA has been
quoted as saying ``The industry purged itself of 30 percent of its
drivers in the last two years. They're everywhere, but they are not
coming back to work for you if you're not going to pay them anything''
(Dills). An etrucker.com survey asked about the causes of the driver
shortage; 40 percent of respondents attributed it to low pay, but 24
percent said there was no shortage (Dills). Industry press reports
indicate that carriers have many more applications than they have
positions.
FMCSA is aware that new drivers have a higher crash rate than more
experienced drivers, but the industry
[[Page 81147]]
adds a large number of new drivers every year. The number added because
of today's rule will be relatively small in comparison to the annual
influx for an industry where turnover, until the recent recession, was
100 percent or more in the truckload sector. The real issue for the
industry is that many of the new drivers leave the industry within a
few months because of long hours, the weeks away from home, and low pay
(Burks (2007)).
C. Sleep Loss and Chronic Fatigue
Comments. A number of commenters, including the major trucking
associations, questioned FMCSA's assumption that drivers are not
obtaining adequate sleep. They stated that 10 consecutive hours a day
off duty should provide sufficient rest. ATA stated that FMCSA's data
indicate that drivers get 6.2 to 7 hours of sleep a day, which is
enough. The Minnesota Trucking Association argued that 6.5 to 7.5 hours
of sleep is enough. The National Association of Manufacturers said
manufacturers did not agree that sleep between midnight and 6 a.m. is
different from sleep at any other period. Others, including drivers,
claimed that they were naturally able to stay up all night and sleep
during the day. One carrier reported that its night drivers said they
maintained their daytime sleep patterns on days off. ATA and others
argued that the 34-hour restart, without restrictions, provides
sufficient rest to restore performance.
FMCSA Response. The claim that 6.2 to 7 hours of sleep is enough is
not supported by sleep research. As discussed in the NPRM, a study by
Belenky (2003) found that drivers getting less than 7 hours in bed a
night suffer degraded performance. The research indicated that someone
who is totally deprived of sleep for one night recovers more quickly
than someone who chronically obtains 6 to 7 hours of sleep. The VTTI
study (Hanowski (2007)) did not show that drivers were getting even 6.2
hours of sleep on work days; that figure was the weekly average
including 2 days off. On working days, sleep averaged below 6 hours for
drivers who were not, in general, working the longest hours, but who
were mostly night drivers. The sleep data in the 2005 fatigue
management study (slightly less than 7 hours) was self-reported sleep,
which has been generally found to be overstated by 30 to 60 minutes;
this study also focused on a population of drivers who often drove at
night.
Sleep research has for decades shown that humans find it difficult
to get enough sleep during daylight hours even if put in dark, quiet
rooms. Few people can obtain as much as 6 hours of sleep during the day
and that sleep is of lower quality than nighttime sleep;
[Aring]kerstedt (2003) found day sleep of night shift workers was 2 to
4 hours shorter than night sleep of day shift workers. The one group
studied that seemed to overcome this problem worked in enclosed spaces
with no external indications of day or night. Truck drivers do not fit
that pattern.
The window of circadian low varies somewhat among individuals. Some
people, if they can choose their own times, routinely sleep between 9
p.m. and 5 a.m. while others may sleep from 2 a.m. to 10 a.m., but
virtually every healthy person is sleepy between 1 a.m. and 5 a.m.
Sleep at that time is longer, less prone to interruptions, deeper, and
more restorative (Van Dongen & Dinges (2005)).
As several commenters noted, someone who gets 10 hours of rest a
day should not build up sleep debt, but 10 hours off duty does not
translate to 10 hours of rest. Research on drivers and others has shown
that people who work 14 hour days do not get adequate sleep; 10 hours
off usually produces less than 7 hours of sleep, often less than 6
hours because the drivers generally attend to family matters, eating,
and showering for the other time the drivers spend off duty. And for
the reasons discussed above, those attempting to sleep during the day
usually only get 4 to 6 hours of poor quality sleep. The shorter sleep
that night workers obtain may explain the higher risk of crashes and
lower productivity that [Aring]kerstedt and Wright (2009) found when
comparing night shifts with day and swing shifts. Drivers who sleep
during the day on their days off would not be getting adequate recovery
sleep. A driver who sleeps during the day every day is building up
sleep debt from week to week.
The drivers who are working the long daily and weekly hours needed
to make a restart necessary may build a sleep debt that the limited
time off allowed by the restart might reduce only slightly. These
drivers are more likely to be chronically fatigued, with the
performance deficits associated with fatigue, and are subject to a
range of health effects linked to sleep loss.
D. New Research Studies
As discussed in the overview in Section I, on May 9, 2011, FMCSA
posted to the docket four studies that had been recently completed and
that addressed some of the issues of concern to this rulemaking.
Fourteen organizations submitted comments on the studies. Advocates and
New York State Department of Transportation (NYDOT) stated that the
studies supported the proposed rule.
Blanco
In April 2011, Virginia Tech Transportation Institute (VTTI)
completed a naturalistic driving study, i.e., a study of actual over-
the-road drivers and operations, that examined the activities performed
in the 14-hour workday and investigated the relationship between
safety-critical events (SCEs) (such as driver errors and lane tracking
deviations) and driving hours, work hours, and breaks (referenced here
as Blanco). The study's methodology was similar to that which VTTI has
employed in other studies conducted in support of HOS rulemaking and
driver fatigue research. The data acquisition system was composed of
five main components: An encased unit that housed the computer and
external hard drive; dynamic sensors; vehicle network; incident box;
and five video cameras. VTTI developed a custom state-of-the-art lane-
tracking system and included it in the data acquisition system. The
lane-tracking system consisted of a single analog black-and-white
camera, a personal computer with a frame grabber card, and an
interface-to-vehicle network for obtaining road speed. The system
reported the distance from center of truck to left and right lane
markings (average error less than 2 inches). The system accurately and
reliably measured and stored data when the vehicle crossed the dashed
or solid highway lines. Lane tracking has historically been shown in
the research to be a good measure of functional impairment due to
driver fatigue.
VTTI's previous naturalistic driving research had not shown a time-
on-task effect; these studies looked exclusively at driving time.
Blanco looked at both driving and duty time and found a statistically
significant positive relationship between driving time and the number
of SCEs. The Blanco study supports the time on task function that the
Agency used in the RIA. Blanco showed that naturalistic driving
research no longer contradicts other types of driving time research
conducted using different methodologies. The studies are all now
consistent in showing that as the number of driving hours increases,
there is a general upward trend in the number of crashes or SCEs.
However, the study also compared the risk of driving in the 11th hour
and failed to find a statistically significant difference between the
11th hours and the 7th, 8th, 9th, or 10th hours.
[[Page 81148]]
Blanco also showed that when non-driving activities (both work- and
rest-related) were introduced during the driver's shift--creating a
break from the driving task--these breaks significantly reduced the
risk of being involved in a SCE during the 1-hour window after the
break. The benefits of breaks from driving ranged from a 30 percent
reduction in the risk of SCEs up to a 50-percent reduction (depending
on the type of break from driving), with the greatest benefit occurring
for off-duty (non-working) breaks.
Blanco evaluated driving hours based on whether the hour occurred
at the beginning, middle, or end of an on-duty shift. The first 5 hours
after coming on duty were categorized as the beginning of the on-duty
shift. By definition, any hour after the 5th hour of driving could not
fall within this work period. Hours 6-9 were categorized as the middle
shift hours, and hours 10-14 were categorized as the end of shift
hours. Driving hours 10 and beyond could occur only during end of shift
hours, by definition. The first hours of driving (hours 1-5) could
occur in any shift period depending on how much on-duty not driving and
break time a driver incorporated into a day. For example, if a driver
spent 7 hours loading a truck at the beginning of a day, the 1st hour
of driving would be in the middle shift hours; if that driver drove 3
hours, the third hour would be in the end of shift hours.
Analysis of SCEs showed that, in general, the same hour of driving
had more SCEs if it occurred at the end of a shift than if it occurred
at the beginning or middle of a shift. For example, if the 5th hour of
driving occurred at the beginning of a shift, it had 0.11 SCEs per unit
of exposure. This same hour of driving had 0.20 SCE per hour of
exposure if it occurred in the middle of a shift, and 0.21 SCEs if it
occurred at the end of a shift. If the 8th and 9th hours of driving
occurred in the middle of a shift, they had 0.09 and 0.10 SCE per unit
of exposure, respectively. At the end of the shift, by comparison, the
8th and 9th hours of driving had 0.22 SCE and 0.18 SCE per unit of
exposure respectively. This finding indicates that the interaction of
total shift length and driving time impairs safety performance later in
the day, suggesting that safety would be negatively affected by duty
periods in excess of 14 hours.
Jovanis (2011)
In April 2011, Pennsylvania State University (PSU) completed a
quantitative study of the safety implications of driver HOS using a
case-control time-dependent logistic regression methodology (referred
to here as Jovanis (2011)). It is important to note that alone, time-
dependant logistic regression identifies an association, it does not
prove causation. The PSU team completed a similar study in 2005. At
that time, the Agency had concerns regarding the sample size,
particularly in the 11th hour of driving. The new study was designed to
address those concerns. The PSU study team collected data from the logs
of drivers who were in crashes that involved either a fatality, an
injury requiring medical treatment away from the scene of the crash, or
a tow-away. The drivers' logs covered a period of 2 weeks prior to the
crash and were compared to a random sample (two drivers) of non-crash-
involved drivers selected from the same company, terminal, and month
using a case-control logistic regression formulation. The team
collected data from 1,564 drivers. The methodology employed by the team
had been peer-reviewed in many previous research studies (i.e., Jovanis
(1991); Kaneko and Jovanis (1992); Lin (1993); and Lin (1994)). The
team separated the data into truckload and LTL analyses because
previous research indicated differences in the factors contributing to
crashes for these two segments of the trucking industry. In total, the
team analyzed 878 drivers (318 crash-involved and 560 controls) in
truckload operations and 686 drivers (224 crash-involved and 462
controls) in LTL operations. The study produced counter-intuitive and
somewhat contradictory findings. For the LTL operations, Jovanis (2011)
found that as driving time increased so did the odds of being in a
crash. Analysis of LTL data showed a strong and consistent pattern of
increases in crash odds as driving time increases. The highest odds are
in the 11th hour. For truckload drivers the study found no consistent
trend relating crash odds to hours driving. The study team stated that
the crash-odds increase in the last hour is in need of further analysis
because the increase in odds may be attributable to the low sample size
of observations (9 crashes of 318 truckload crashes in the data). Given
the nature of the type of operations, one might expect truck load
drivers to exhibit greater crash risk due to fatigue.
Two Sando Studies
In April 2011, the Agency placed in the docket two additional
studies that it became aware of after publication of the NPRM. These
two studies were conducted by the School of Engineering at the
University of North Florida. The first study, Sando (2010a), examined
the influence of bus operator driving hours on the occurrence of
preventable collisions by employing data from incident reports and
operator schedules to evaluate the correlation between driving hours
and operator involvement in collisions. The results showed a
discernable pattern of an increased propensity for collision
involvement with an increase in weekly driving hours. Based on the
analysis, drivers involved in preventable collisions had driven an
average of over 6 hours more per week than the general bus driving
population.
The second study, Sando (2010b), examined the safety impacts of the
existing State operator hours of duty policies in Florida. The
researchers used questionnaire surveys, incident data archived by
transit agencies, and bus driver schedules to determine the
relationship between crash involvement and operator schedules. Factors
of interest in this study were the influence of shift pattern (start
and end time), schedule pattern (split or non-split schedule), and time
spent driving. Split schedules occur when a driver works in the
morning, takes a long break, then works again in the later afternoon or
evening. The study revealed that operators working split schedules were
more susceptible to fatigue than those working straight schedules. The
group of operators working split schedules indicated less sleep time,
long driving hours, and early starting/late ending schedule patterns.
These are characteristics of a fatiguing work schedule. There was also
a strong statistical significance attached to the association between
crash occurrence and fatigue condition as measured by a fatigue
assessment tool. The tool predicted the likelihood that a driver was
fatigued on a given shift by analyzing driver multi-day schedules. The
analysis of incident data and fatigue level found that total crash
likelihood increased significantly for drivers who were coded as highly
likely to be seriously fatigued.
Although transit bus operators are governed by different HOS rules
than interstate CMV truck drivers, the Sando studies show that
cumulative work begins affecting bus driver performance well within the
limits of the current HOS rules for truck drivers. In addition, less
than 3 percent of the transit operator sample worked on schedules that
exceeded 14 hours from the start of a duty day to the end of the
driver's last shift. In essence, the schedules of the vast majority of
drivers studied were within the limits of the HOS rules that govern
interstate truck drivers. The study showed that cumulative fatigue
[[Page 81149]]
begins affecting driver crash performance for drivers averaging more
than 45-50 hours of total shift time per week, inclusive of split
driving schedules. The study found that crash risk increased for
drivers averaging 9 or more hours of driving per day. In addition, the
study examined driver schedules and determined that longer working
hours are associated with fewer hours of nightly sleep, on average.
It must be noted that transit bus operators work in a different
environment from most over-the-road, but not local, truck drivers.
Transit bus operators primarily drive on city streets in an urban
environment, whereas over-the-road truck drivers spend far more of
their time driving on interstate highways and rural roads.
Nevertheless, these transit bus studies do examine safety performance
in an occupation that involves long hours of driving. These studies
corroborate the cumulative fatigue and work-sleep relationships used by
the Agency in analyzing the impacts of the new HOS rules, providing
further evidence that long daily and weekly working hours affect both
the amount of sleep drivers get and their risk of crashing.
Comments on Blanco. The ATA submitted an analysis prepared at its
request by Ronald Knipling that provided the following comments
regarding the Blanco study:
Naturalistic driving studies may not provide an adequate
test bed for driver fatigue studies.
The study would have been improved if the study team had
disaggregated the data into fatigue related SCEs, at-fault vs. not-at-
fault events, single-vehicle vs. multi-vehicle, and divided vs.
undivided road ways.
The study is based on SCEs such as unintentional lane
deviations, but not ``real harm.'' Only 4 of the 2,197 SCEs in the
study were actual crashes.
A definitive link between critical incidents and crash
risk has not yet been established.
The few drivers who contributed disproportionately to the
number of SCEs should have been excluded.
The sample of drivers is not nationally representative of
all CMV drivers.
FMCSA Response. The Blanco naturalistic driving study was focused
on better understanding the activities drivers perform in the 14-hour
workday, and investigating the relationship between SCEs and driving
hours, work hours, and breaks. The Agency disagrees with ATA's
contention that naturalistic driving studies do not provide an adequate
basis for conclusions about driver fatigue and crash risk. Naturalistic
driving studies are one of the best means to assess driver performance.
By reviewing video records and other data from the instrumented
vehicle, analysts are more likely to be able to pinpoint the actual
cause of a crash than through any other research methodology.
FMCSA is unable to accept several aspects of the analysis of the
Blanco study submitted by Knipling/ATA. This submission argues that
drowsiness may actually reduce the number of distraction-related SCEs.
This argument is based on a study that defined fatigue as visible signs
of drowsiness. Only a small number of SCEs would have involved visible
signs of fatigue, yet no one denies that long work hours lead to errors
in judgment, lack of response, or degradation in lane tracking even if
visible signs of fatigue are absent. In the long history of time-on-
task research, many investigators have measured errors, or in this case
SCEs, to study degradation of driver performance over many work days.
The purpose of these studies is to gain a better understanding of the
relationship between fatigue and work hours or driving time.
The conclusions on fatigue and distraction depended on a limited
definition of fatigue--i.e., that fatigue is only present when visible
signs of difficulty staying awake are present. ``Fatigue'' is defined
as ``a non-pathologic state resulting in a decreased ability to
maintain function or workload due to mental or physical stress''
(Caldwell). The term is used to describe a range of experiences from
sleepy, or tired, to exhausted. There are three major physiological
phenomena that have been demonstrated to create fatigue: sleep loss,
circadian rhythm disruption, and time-on-task. Time-on-task fatigue
describes fatigue that is accumulated during the working period and
affects performance at different times during the shift. Performance
declines the longer a person is engaged in a task, gradually during the
first few hours and more steeply toward the end of a long period at
work. Some of the consequences of fatigue are visible. These include
eyes going in and out of focus; involuntary eyelid closure and head
bobs; and persistent yawning. Other consequences of fatigue are not
visibly apparent, such as wandering or poorly organized thoughts,
spotty near term memory, missed or erroneous performance of routine
procedures, degradation of control accuracy, impaired judgment, and
looking but not seeing.
While some recent studies have found that SCEs are not associated
with visible fatigue, they may be associated with non-visible
manifestations of fatigue. In addition, there are several studies that
have found that fatigue is associated with an increase in SCEs. A
Synthesis Report prepared by the Transportation Research Board of the
National Academies, of which Knipling was the principal author
(Knipling (2004)), examined the literature relating driving risk to
several different potential factors. In the fatigue section of that
report, Knipling discusses a 2001 Dingus report on sleeper berth usage
that found a moderate correlation between high drowsiness episodes and
SCEs. In addition, in that same report Knipling also cited a Hanowski
(2000) report which found a positive correlation between SCEs and
fatigue. Several researchers, such as Mast (1989), found that lane-
tracking ability decreases as the time on task increases. Skipper
(1984) found that measures related to vehicle lane position could be
used to detect drowsiness. Variables such as the number of lane
deviations, the standard deviation of lane position, and the maximum
lane deviation were found to be highly correlated with eye closures.
According to Dingus (1987), lane deviation showed good potential as a
drowsiness indicator. Stein (1995) studied the effect of impairment on
driving performance in truck drivers. Using data from a simulator
experiment, Stein found that the standard deviation of lane position
increased remarkably after the driver was fatigued. Pilutti and Ulsoy
(1997) performed experiments on the Ford driving simulator at the Ford
Research Laboratory. The results, reported by the authors, indicated
that lane position showed significant change and corresponded well with
Percent of Eye Closure (PERCLOS) model. PERCLOS is the only validated
measure of driver fatigue.
Within the context of the Blanco study, it is not particularly
important whether fatigue or other factors cause a rise in SCEs late in
the driving day--what matters is whether driving performance declines
(for whatever reason) over the course of long hours of daily work.
Whether this decline in performance is caused by fatigue or some other
factor such as inattention or distraction does not change the basic
conclusion that driving performance suffers later in the duty day. ATA
suggested that the Agency should have parsed all of the SCEs detected
by Blanco, and used only those SCEs where visible signs of fatigue were
present. Knipling, however, did not provide any research citation where
time-on-task research was conducted in this manner, and FMCSA knows of
no such research.
[[Page 81150]]
The Agency does not believe that it is necessary to disaggregate
SCEs by fault or by type of vehicle or by type of roadway. The main
question that the Blanco study addressed was whether time-on-task
effect exists in a truck environment, as it does in virtually every
other work setting.
Additionally, ATA commented that there was no harm from certain
types of SCEs, such as lane deviations and, therefore, they should not
be included in the analysis. A well established fact in transportation
safety research is that crashes are caused by the interaction and
convergence of many factors. In Knipling's 2009 and previous work,
Knipling used the term ``crash trifecta'' to explain the complex and
convergent nature of crashes. The ``crash trifecta'' concept asserts
that crash genesis can be traced to three separate, but converging
events. These include unsafe pre-incident behavior, transient driver
inattention, and an unexpected traffic event. Not every element in the
trifecta occurs in every crash. However, the probability of a crash
given the three crash-trifecta elements is greater than the probability
of a crash given only one of the crash-trifecta elements. Unintentional
lane deviations are unsafe driving practices that may not always result
in crashes. However, based on the ``crash trifecta'' concept, an
unintentional lane deviation when compounded by fatigue/transient
driver inattention and an unexpected traffic event significantly
escalates the risk of a crash. To discount or ignore unintentional lane
deviations simply because they do not always result in crashes is a
simplistic argument that belies the complex nature of crash causation.
It is also a contradiction of a principle and concept that Knipling has
always championed.
ATA commented that a definitive link between critical incidents and
crash risk has not yet been established. FMCSA noted this issue in the
NPRM and has sponsored a study that addresses it indirectly. A report
entitled ``Distraction in Commercial Trucks and Buses: Assessing
Prevalence and Risk in Conjunction with Crashes and Near-Crashes'' by
Hickman, (2010), was placed in the docket of the Agency's NPRM on
``Drivers of CMVs: Restricting the Use of Cellular Phones'' [75 FR
80014, December 21, 2010, Docket No. FMCSA 2010-0096-0004]. ATA
submitted detailed comments on that NPRM on February 22, 2011. FMCSA
assumes ATA was aware of the Hickman study. The report, based on a
combined dataset of 2,421 crashes, concluded that ``[t]he results in
this study were similar to the results found by Olson (2009) regarding
SCE risk and performing a tertiary task while driving.'' The Olson
study evaluated odds risk ratios of driver distraction tasks by
generally examining SCEs. When these events were compared to the
Hickman study, the results did not differ significantly. These findings
thus provide broad confirmation of the link between critical incidents
and crash risk, making them a reasonable surrogate for crashes. In
addition, the Agency has long argued that SCEs are an indication of
decreases in driving performance and an indication of an increased
crash risk. The question is not whether SCEs are related to crash risk,
but how large an increase in crash risk is associated with a given
increase in SCEs. For instance, if a particular factor increases the
risk of SCEs by 30 percent, does this imply that crash risk also
increases by 30 percent, or by a lesser or greater amount? The size of
the link has not been established, although it is generally accepted
that there is a link between driver performance, as measured by SCEs,
and crash risk.
ATA also commented on whether drivers with a disproportionate risk
of SCEs should have been omitted from the data. Knipling noted that
``if the scientific goals of the VTTI study were narrow--determining
the associations between work schedules parameters and SCEs--then this
decision was correct.'' In addition, Knipling notes that he has ``never
encountered a study of driver risk that did not contain compelling
evidence of extreme individual differences among drivers.'' Since these
differences are common to all driver samples, it seems reasonable to
conclude that drivers exhibiting high SCE risk differentials are not
particularly rare within the larger CMV driver population. As a result,
data describing the driving performance of these drivers should not be
ignored or omitted if the goal is to examine work schedule parameters
and how they affect rates of SCEs. The Agency agrees with Knipling that
it was appropriate for Blanco to retain data for these drivers in their
analysis.
ATA pointed out that the drivers in the VTTI study were not
randomly selected and are not nationally representative of all CMV
drivers. This is correct; the sample represents 97 drivers who
volunteered to participate in the study and whose performance was
tracked using instrumented vehicles for 4 weeks. The naturalistic
driving data were collected from four for-hire trucking companies--
long-haul and line-haul segments of the trucking industry. The final
project data set consisted of approximately 735,000 miles of driving
data. Study participants also completed a daily activity register that
provided a detailed account of the tasks that CMV drivers performed
during their workday. The combination of naturalistic driving data and
activity registers makes this study one of the largest data sets ever
collected for studying driver activities, behaviors, and fatigue. The
study team acknowledged in its report that participants may not be
representative of the entire population of commercial drivers, but the
Agency knows of no systematic biases in the composition of the sample
that would distort or invalidate the conclusions drawn by the
researchers. Identifying and securing the cooperation of a large group
of drivers who are truly representative of the extraordinarily diverse
motor carrier industry would be cost prohibitive, even if it was
feasible. The Blanco study represents that best science that is
currently available to examine driver fatigue issues.
Comments on Jovanis (2011). ATA/Knipling provided the following
comments regarding the Jovanis (2011) study:
There was no description of crash characteristics (other
than drivers' associated work schedules) provided;
There was no distillation of the crash dataset to exclude
non-preventable crashes;
The researchers did not perform validation tests of study
conclusions via disaggregation of the crash dataset by prominent
fatigue-related factors; i.e., single-vehicle vs. multi-vehicle
crashes, or other crash characteristics;
Inadequate attention was paid to time-of-day as a
potential confound;
The study employed an inter-subject design rather than
intra-subject design;
There were a relatively small number of 11th hour crashes
and exposure hours;
The study sample may be unrepresentative due to apparent
inclusion of truck tractors not equipped with sleeper berths.
FMCSA Response. Knipling and the National Industrial Transportation
League (NITL) stated that Jovanis provided no description of crash
characteristics (other than their patterns of work schedules) and no
distillation of the crash dataset to exclude non-preventable crashes.
These comments are correct; the study team was tasked by the Agency to
investigate the crash risk by hour of driving, not to investigate
either fatigue-only crashes or crashes deemed preventable. The team was
interested in all crashes and their association with driving hours of
[[Page 81151]]
service. The study did not adopt a ``fatigue'' or fault perspective
used by others because the researchers did not want to inject personal
judgment about individual crashes into the analysis.
Knipling commented that the Penn State team did not perform
validation tests of study conclusions via disaggregation of the crash
dataset by prominent fatigue-related factors (e.g., single-vehicle vs.
multi-vehicle crashes and other crash characteristics). Again, this
research was a study of the time-on-task effects as they relate to
crash risk for evaluation of the drivers' hours of service.
Disaggregation of the data into the various categories suggested by ATA
is neither necessary nor warranted in the context of determining crash
risk as a function of driving hour. The underlying methodology used for
this study has been employed over the last 25 years, and related
studies based on this methodology have appeared in peer-reviewed
journals, papers and proceedings and presentations to the
Transportation Research Board of the National Academies.
Knipling claimed that the Penn State team did not pay sufficient
attention to time-of-day as a confounding factor. Time of day is
discussed at great length in the report. The study carefully included
multiday driving in the models, by grouping drivers with similar daily
and weekly work and driving schedules together. Within each group,
drivers started their duty day at approximately the same times on the
same days, and drove for roughly the same number of hours. Drivers were
also grouped based on where in the week their extended off-duty or
restart fell. Because drivers in each schedule grouping drove at
roughly the same time, and for the same duration, on a daily basis,
their exposure at a particular time of day was similar. These
groupings, therefore, partially controlled--although imperfectly--for
time of day and circadian effects.
Knipling commented the study employed an inter-subject design
rather than intra-subject design. That is, the study compared drivers
who had a crash to two drivers who did not rather than comparing the
crash driver to him- or herself over a period in which there was no
crash. This is correct, and the study team did so for good reason:
including only an intra-subject design removes all non-crash involved
drivers from the analysis. The Agency believes it makes sense to build
a model representing all drivers on the road, not just those involved
in crashes in any one year.
Knipling noted that relatively few 11th-hour crashes and exposure
hours were included in the study. This is also true. One of the reasons
the Agency commissioned this study was to collect data on a larger
number of drivers who drove into the 11th hour. However, even with this
larger data set, which combined the 2005 data set and new information
collected specifically for this study, the Penn State team found that
many drivers simply are not using the 11th hour of driving.
Comments on Relation of Blanco and Jovanis Results. OOIDA commented
that the two new studies Blanco and Jovanis (2011) provided
inconsistent results. ATA pointed out that the overall driving effects
in the Blanco study were not significant.
FMCSA Response. OOIDA correctly pointed out that the Blanco study
was done using a naturalistic driving study perspective, while the
Jovanis (2011) research was based upon a review of driver logbooks and
electronic on-board recorder (EOBR) records and involved a comparison
between the portion of logs of drivers reflecting trips where a crash
occurred and the logs of other drivers where no crash occurred. Using
these two very different methodologies, both studies showed a
statistically significant time-on-task effect--as the number of hours
increased so did the number of SCEs (Blanco) or crashes (Jovanis
(2011)). The study by Blanco significantly qualifies the previous work
by Hanowski (2008), which detected no difference in the crash risk
between the 10th and 11th hour of driving. Although the new study is
still unable to pinpoint a statistical difference between those two
hours or between the 11th hours and the 7th, 8th, 9th, or 10th hours,
it shows a time-on-task effect that the more narrowly focused 2008
study did not. As a result, all major drive-time research is generally
consistent in finding that longer work hours increase the risk of a
crash. The primary reason for this development is that the latest VTTI
study was able to reliably capture lane deviations. With any impairment
such as fatigue or loss of vigilance, one of the first indications is
the driver's inability to keep the vehicle within a particular lane.
Lane tracking is the first and one of the best indicators for loss of
vigilance or driver fatigue.
Blanco and her colleagues conducted numerous statistical tests on
their data. The NYDOT commented that the study:
Contains some data manipulations that may be questionable. Table
11, which summarize the raw data, shows 11th hour as having the
highest SCE rate per hour. To accommodate certain statistical
analysis methods the SCE data was collapsed to be binary variable
which resulted over 42 percent of the over-all SCE data, and over 59
percent of the SCE data for the 11th hour of driving to be
discarded. Through a series of further data manipulations the
researchers arrive at Table 22 (the data used to calculate the odds
ratios in comparing driving hours), which shows 11th hour to be the
safest hour in terms of SCE rate per shift. Some justifications for
these data manipulations were presented, but they are not very
compelling.
The Agency agrees with NYDOT's characterization of some of the
analytical techniques used in the study. The Blanco study took
continuous data and converted them to a binary function. While this may
be necessary for calculating odds ratios, it can also conceal useful
information. For example, a driver who becomes fatigued and has
difficulty maintaining vigilance is more likely to have multiple SCEs.
Given the analytical approach used by Blanco, a driver's lane
incursions in a given hour would be coded as ``yes'' (meaning there was
an SCE in that hour), irrespective of the actual number of incursions.
Increasingly frequent SCEs are probably indicative of increasing
fatigue, but converting them to a binary function eliminates that
information. This analytical technique makes it much more difficult to
show statistically significant differences.
OOIDA also commented and reiterated that the Blanco study did not
find statistically significant differences between the 10th and the
11th hour of driving. This is true, but again given the data procedure
discussed above and the fact, as OOIDA pointed out, that many of the
drivers in this study did not drive into the 11th hour, the sample size
was substantially reduced. These factors have a great effect on
statistical significance.
Comments from NY DOT and Advocates. The NYDOT stated that the
Blanco and Jovanis (2011) findings supported reducing driving time to
10 hours and requiring breaks. It stated that Jovanis (2011) and Sando
(2010a and b) supported the changes to the restart provision. Advocates
stated that the studies supported the 10-hour driving limit, the
mandatory break, and a 13-hour driving window. It concluded that the
studies contradicted the proposal to allow drivers to extend the
driving window to a 16-hour day twice a week.
FMCSA Response. FMCSA agrees that the studies show a general
increase in crash risk with longer work hours. However, confronted with
strong evidence that an 11-hour limit could provide higher net
benefits, the Agency has concluded not enough data exists for adopting
a new regulation on this issue and that the current driving limit
should therefore be allowed to stand for now. As discussed elsewhere in
this
[[Page 81152]]
preamble, however, based on the cost, an 11-hour driving limit is the
most reasonable regulatory choice.
Comments on Sando Studies. ATA and Knipling criticized the
applicability to the trucking industry of the transit bus studies by
Sando (2010a and 2010b). The main criticisms were that transit bus
drivers work in a different operating environment than over-the-road
truck drivers and under different HOS rules. Other commenters on these
studies made these same two arguments. In addition, Knipling criticized
some aspects of the methodology used and suggested refinements that
might have improved the study. He argued that the study failed to
distinguish between multi-vehicle and single-vehicle crashes, and that
the study omitted preventable crashes that were perceived as having
been caused by factors other than fatigue.
FMCSA Response. The Agency agrees that transit bus operators
generally drive in a different environment from over-the-road truck
drivers. The former generally operate in an urban environment on city
streets, while the latter operate on highways and rural roads and spend
limited time driving in urban areas. In addition, transit bus operators
drive during peak commuting periods, when traffic volumes are heavy,
while truck drivers often adjust their schedules to avoid large urban
areas during rush hour if possible. Finally, transit buses are not
equipped with sleeper berths, and there are not always good places for
transit bus operators to take breaks and rest during shifts. While
these are legitimate reasons to use caution in applying the results of
these studies to truck drivers, their findings cannot be totally
ignored. Despite the differences in operating environments, both
transit bus and over-the-road truck drivers spend the majority of their
work time driving large motor vehicles. Furthermore, there is no reason
to believe that truck and bus driver populations respond differently to
long work hours.
Florida transit bus operators are governed by different rules than
interstate truck drivers. They are allowed a maximum duty window of 16
hours, are required to take only an 8-hour break between shifts, and
can drive 12 hours per day. Their maximum work hours are capped at 72
hours in 7 days. Knipling and others argue that these different rules
make the application of the transit bus study findings to the trucking
industry questionable. However, a look at the transit bus operator
schedule data in Sando 2010b shows the average weekly hours worked by
the operators included in the study. Drivers generally averaged between
50 and 55 hours of work per week, and the maximum weekly hours for any
one driver was 85.67, which is barely over the maximum number of hours
a truck driver can work under the current HOS rules. In essence, the
vast majority of drivers included in the study were complying with the
weekly on duty hour limits that apply to truck drivers. Although
governed by different hours of service rules, the fact that almost all
of the drivers in the study were working schedules that would comply
with the current HOS rule for truck drivers makes the findings of the
study somewhat applicable.
The other criticisms of these studies involved minor methodological
issues. The authors excluded crashes that were deemed to have a cause
that was not fatigue-related. While this filtering of the data may have
affected certain findings, especially those related to crashes during
windows of circadian low, when fatigue would be a larger problem, it is
unclear how this filter could invalidate the findings related to
cumulative fatigue and long daily average working hours. Presumably
drivers working long hours would be involved in non-fatigue-related
crashes at rates similar to other drivers. If one accepts this
reasonable assumption, finding that their risk of fatigue-involved
crashes increases would logically mean that their overall crash risk is
also higher. While it would have been helpful for the authors to look
at all preventable crashes, the fact that they excluded some
preventable crashes from the analysis does not invalidate the findings
that long average daily work and excessive hours of weekly work
increase the risk of a crash.
Knipling also claims that the authors should have looked at multi-
vehicle and single-vehicle crashes separately. We see no reason why a
study cannot look at crashes as a whole rather than segmenting them by
the number of vehicles involved. True, multi-vehicle crashes have a
different crash factor profile than single-vehicle crashes, but the
same factor can increase the risk of either type of crash. In short,
while the suggestions for methodological improvements are helpful, the
authors' failure to conduct these extra analyses does not appear to
invalidate or seriously compromise the findings of the studies.
ATA and others have argued that the Agency ``has no basis'' for
claiming safety benefits associated with changes to the HOS rules. One
of the primary safety impacts claimed by the NPRM was that long weekly
work hours are associated with an increase in the risk of a crash--
i.e., that long hours over successive days result in cumulative
fatigue, and cumulative fatigue results in increased crash risk. The
transit bus operator studies analyzed the association between weekly
working hours and preventable crash involvement and found a cumulative
fatigue impairment effect that is stronger than that used by the Agency
in evaluating the rule adopted today. While the Agency does not believe
it would be valid to apply the cumulative fatigue impact of these
transit bus operator studies to a rule governing over-the-road truck
drivers, the studies do confirm that long hours of working per week are
associated with decrements in driving performance and pose a safety
hazard. The studies therefore provide further evidence that it may be
wise to limit the amount of weekly work allowed to truck drivers.
In addition, the transit bus studies corroborate another effect
used by the Agency in analyzing the impacts of the HOS rules: Long
working hours are associated with fewer average hours of sleep per
night. FMCSA used the relationship between work and sleep to estimate
the health benefits associated with reductions in allowable daily and
weekly work. The transit bus studies provide further evidence that long
daily and weekly work hours are associated with sleep deficits. Chronic
sleep deficits are associated with fatigue-impairment and long term
adverse health consequences. Insufficient sleep therefore affects both
public health and safety. Corroboration of the Agency's position that
increases in work result in decreases in nightly sleep lends support to
FMCSA decision to reduce the hours drivers can work.
E. Driving Time Limits
Beyond the arguments on the economic impact of the 11th hour,
industry commenters generally stated that FMCSA had no data that
demonstrate that the 11th hour is riskier than the 10th. NTSB, NIOSH,
and the safety groups supported reducing driving time to 10 hours.
Comments on the Safety of the 11th Driving Hour. Less than 10
percent of the commenters on this issue supported reducing the
permissible driving time from 11 to 10 hours. Most of these commenters
asserted that the reduction to a 10-hour driving time limit would
improve safety. NTSB and NIOSH stated that the reduction to 10 hours
would promote adequate sleep periods. NTSB stated that reducing driving
time to 10 hours would also reduce time on task. Six commenters argued
that the scientific evidence supports a 10-hour
[[Page 81153]]
driving time limit. The joint comments filed by Advocates et al. cited
numerous studies to support their contention that the 10-hour driving
time limit is supported both by ``data on driver sleep patterns under
the current, 11-hour limit and by the reduction in added driving
exposure at the highest level of crash risk that would be eliminated.''
Three commenters, including Advocates et al., cited research that they
asserted shows that crash risk increases well before the 11th hour of
driving. NTSB and Advocates et al. cited studies that they stated show
that extended periods of time awake and time on task have been
associated with fatigue-related performance decrements and increased
crash risk. NTSB argued that because at least some statistics indicate
that the 11th hour of driving is more dangerous than any of the first
10, in the absence of completely relevant scientific data, FMCSA should
err on the side of caution and reduce the driving time limit to 10
hours.
Advocates et al. stated that in the 2003 HOS final rule, FMCSA
acknowledged that performance begins to degrade after the 8th hour on
duty, but justified increasing the driving time limit to 11 hours by
stating that other changes in the rule would make up for the added
consecutive driving time at the highest rate of crash risk. They stated
that ``no evidence supports the supposition that increases in other
aspects of the off-duty time provided under the current rule reduce the
crash risk or driver fatigue experienced in the 11th consecutive hour
of driving.'' They noted that the appellate court that rejected the
2003 HOS rule cited this lack of support for the trade-off. Advocates
et al. asserted that maintaining the 11-hour limit would constitute
arbitrary and capricious agency action since FMCSA still lacks evidence
that driving during the 11th consecutive hour is safer than, or at
least as safe as, the truck crash risk experienced during driving hours
prior to the 8th consecutive hour of operation.
Finally, Advocates et al. presented arguments to counter assertions
that there is no new research data to support an FMCSA decision to
adopt a 10-hour limit. They argued that the 11th hour limit was always
unsupported by research, so no new evidence is necessary to rescind it.
Further, they stated that there actually are data showing that, as of
2006, drivers are not getting any more rest than they were before the
rule took effect in 2004. They argued that since scientific evidence
indicates that the amount of sleep drivers are currently getting is
less than the amount necessary to restore driver performance levels,
revising the HOS rule is both necessary and appropriate.
ATA and most industry commenters argued that data and fatigue
research do not show that a quantifiable safety benefit would result
from reducing daily driving time from 11 to 10 hours, or that there is
an increase in crash risk between the 10th and 11th hour of driving.
Several commenters cited research studies that they asserted show that
hours of driving is not a strong or consistent predictor of observed
fatigue. These studies include the 2007 VTTI naturalistic driving study
discussed in the NPRM (Hanowski (2007)), which ATA and others cited as
showing no increase in crash risk between the 10th and 11th hours of
driving. ATA asserted that although FMCSA expressed concerns about the
VTTI study in the NPRM, the Agency has used that study in other
rulemakings and has used other studies in the HOS rulemaking that had
more severe sample size and composition flaws. Commenters, including
ATA, also cited data that they asserted show that more crashes occur
during the first few hours of driving, which they argued supports
retaining the 11-hour daily driving limit.
FMCSA Response. A new study conducted by the same VTTI researchers
whose work was cited in the NPRM, and using the same approach praised
by ATA and other commenters, has found that the risk of SCEs rises with
the hours since coming on duty (Blanco).
Although Blanco found some increase in risk in the 11th hour, the
effect is not significant. A stronger effect is related to hours worked
each day and week. Given the high cost of eliminating the 11th hour and
the ambiguous data, FMCSA has decided that it does not have an adequate
basis to change the driving limit. The rule also substantially reduces
the maximum weekly work time and ensures that drivers cannot work the
maximum number of hours every week while giving the flexibility to do
so occasionally. Some of the safety benefits and most of the health
benefits derive from limiting long work hours.
Comments on the Use of the 11th Hour. About 35 commenters submitted
some information on the use of the 11th hour. Although one small
carrier and a shipper association stated that most drivers maximize
hours, many commenters, including ATA and other trucking associations,
indicated that the 11th hour is used primarily for flexibility to
account for unforeseen events. Some LTL carriers stated that some
routes (often called ``lanes'') have been rearranged to take advantage
of the longer distances possible with 11 hours of driving time. Several
large carriers submitted information on the frequency with which their
drivers use the 11th hour--the percentages reported were 6 percent, 7
percent, 9 percent, 9.5 percent, 11 percent, and 15.26 percent.
A private carrier stated that one division uses the 11th hour 85
percent of the time, while the rest use it 10 percent of the time.
Another private carrier stated that its drivers rarely reach the 11th
hour. OOIDA reported that two thirds of the respondents to its on-line
survey said they use it 1 to 4 times a week. Individual drivers and
smaller carriers reported higher use of the 11th hour, although again
it was not always possible to determine whether they were reporting the
percentage of daily periods with a full 11 hours of driving or the
percentage of drivers who used the 11th hour at some point over the
period examined.
FMCSA Response. None of the commenters provided data that could be
used to estimate the actual level of use of the 11th hour, but in any
case, FMCSA has not adopted a 10-hour limit.
Other Comments on Driving Limits. Finally, a few commenters
suggested alternative driving rules. OOIDA suggested that the 10-hour
limit apply only to new drivers; another commenter suggested that
drivers using paper logs be limited to 10 hours. Two commenters said
that as the first hour is the most dangerous, FMCSA should require
drivers to be on duty for one hour before driving to be sure they are
awake.
FMCSA Response. It is difficult to see how limiting a 10-hour rule
to new drivers could be enforced. It is also not clear that new drivers
are more prone to fatigue-related crashes than experienced drivers. The
suggestion that drivers be on duty for an hour before driving is based
on the assumption that the factors that lead to a high number of
crashes in the first hour (which some studies do not show) are related
to fatigue and sleep inertia. Fatigue may play a part in some of these
crashes, but driving on secondary roads and the simple fact that all
drivers drive the first hour are likely to be larger factors in first-
hour crashes than fatigue. It is not clear why using paper logs would
make longer driving times more fatiguing.
F. 30-Minute Break Provision
Comments. A few commenters supported mandated breaks. NIOSH and
NTSB supported a required break to reduce continuous time on task.
Advocates et al. thought breaks were temporarily helpful, but not
adequate to reduce fatigue.
Commercial Vehicle Safety Alliance (CVSA) and a few other
commenters stated that required breaks would
[[Page 81154]]
complicate enforcement. A trucking association and others warned that
the proposed requirement could cause conflicts for drivers transporting
Department of Defense (DOD) shipments of security-sensitive materials
that require continuous attendance. ATA, OOIDA, and others expressed
similar concerns about conflicts with hazardous materials
transportation requirements. The Truckload Carriers Association (TCA)
and OOIDA added that the provision would undermine the ability of team
operations to keep the freight moving with minimal stops and to have
someone in charge of the shipment for the duration of the trip.
A few commenters suggested longer or shorter breaks. Many drivers
misunderstood the rule and assumed that it required a break at 7 hours.
Some argued that drivers would wait until 6.5 or 7 hours to take the
break so they would not have to take another break. Two commenters
supported a break from driving, but not from being on duty.
FMCSA Response. FMCSA has revised the break provision in response
to comments. If a driver wants to continue driving after 8 rather than
7 hours on duty as proposed, driving is not permitted if more than 8
hours have passed since the end of the driver's last off-duty or
sleeper-berth period of at least 30 minutes. In other words, driving is
prohibited if more than 8 consecutive hours have passed since a
driver's last off-duty or sleeper-berth break of at least 30 minutes;
after taking such a break (or a longer one), the driver may resume
driving, provided he or she does not exceed the 11-hour driving limit.
This change will make the break provision consistent with the sleeper-
berth rule and address the concerns of team drivers that a break at the
7th hour will be disruptive. It will also mean that a driver working a
full 14-hour day will be able to continue driving after the 8th hour on
duty if he/she takes a single break between the 6th and 8th hour.
For a driver who is on a long-haul run that involves nothing but
driving for the duty period, any break of at least 30 minutes taken
between 3 and 8 hours on duty will meet the requirement. If a driver
spends 2 hours loading at the beginning of the day, then has a 10-hour
drive ahead of him, he can take a half-hour or more break at some point
between the 4th and 8th hours after coming on duty, and then complete
the rest of his 10 hours of driving without another break. If, as ATA
and others argued, drivers are already taking breaks, the final rule
should allow most of those breaks to be used to meet the requirement.
The Blanco and Jovanis (2011) studies demonstrate that breaks
reduce the risk of crashes after the break, findings that are
consistent with research on the impact of breaks on accident risks in
other industrial sectors. Blanco analyzed SCEs in the hour preceding
and after a break. This research found that any break from driving
reduces risk in the hour following the break, but off-duty breaks
produced the largest reduction. This study also showed that when non-
driving activities (both work- and rest-related) were introduced during
the driver's shift--creating a break from the driving task--these
breaks significantly reduced the risk of being involved in an SCE
during the 1-hour window after the break. The benefits of breaks from
driving ranged from a 30- to 50-percent reduction in risk of SCEs
(depending on the type of break from driving), with the greatest
benefit occurring for off-duty (non-working) breaks.
Jovanis (2011) studied the effect of breaks from driving on crash
risk. That analysis was unable to distinguish between on-duty breaks
from driving and off-duty breaks. The analysis looked at the effects of
one, two, or three breaks from driving in a day on the likelihood of
crash involvement. The inclusion of any break was found to reduce the
risk of a crash, and the effect of two breaks was found to be
statistically significant.
In addition, O'Neill (1999) found that breaks improve performance
on driving simulators. The study examined driver simulation performance
following active breaks in which loading and unloading of a vehicle was
simulated, and rest breaks. The study found that loading and unloading
had mixed effects on driving performance, but that off-duty breaks
improved performance. The driving simulations showed a decrease in
simulator performance from the start of a driving period to the point
at which a break was taken. After a break from driving, performance was
restored temporarily, and then began to decline as the length of time
since the last break increased.
To address the concerns raised about carriers of hazardous
materials, FMCSA has added a new paragraph Sec. 395.1(q) to allow
drivers who are attending a motor vehicle transporting Division 1.1-1.3
explosives, but performing no other work, to log at least a half hour
of the time spent attending the CMV toward the break. This time
continues to be on-duty, so the driver will have to annotate his log to
indicate when the break was taken. This exception will allow the driver
to meet the requirements of 49 CFR 397.5 ``Attendance and surveillance
of motor vehicles'' in the driving and parking rules for the
transportation of hazardous materials to attend the vehicle at all
times without violating the break requirement. FMCSA notes that Blanco
found that such on-duty breaks provide some risk reduction in the hour
following the break.
On the issue of enforcement, any new requirement makes enforcement
more complex, but breaks are an easy concept to comprehend.
G. Restart
General Comments on the Restart. NIOSH, Advocates et al., and one
carrier supported the changes to the restart provisions because they
would help address fatigue issues for drivers operating at, near, or
beyond the maximum permissible hours of service and would not affect
compliance, given that many drivers already take weekends off. OOIDA,
FedEx, TCA, and two carriers added that the current rule provided
sufficient rest and sleep for drivers, regardless of whether the driver
engaged in daytime, nighttime, or both types of operations. ATA
referenced earlier published statements from the Agency in asserting
that the 34-hour period was adequate. ATA argued that FMCSA should
require long periods of ``idle time'' only if there is evidence that
the current restart provisions may exacerbate problems with fatigue.
Referring to fatigue associated with long driving hours, OOIDA said
that the current rule allows drivers to return to their homes sooner
than was possible under the old rule. OOIDA said that the proposed
restart changes, based on FMCSA concerns of long duty hours resulting
in fatigue, were unnecessary in light of anecdotal evidence regarding
the actual use of the 34-hour restart. ATA stated that drivers do not
use the restart to maximize hours, but for ease of recordkeeping and
scheduling flexibility. OOIDA, citing the FMCSA Field Study data
reported in the interim final rule published on December 17, 2007,
stated that 67 percent of drivers take restarts of 44 hours or more.
Schneider said that only 1.73 percent of its drivers had restarts
between 34-40 hours; the average restart was 62 hours. A private
carrier reported that 95 percent of its drivers' restarts exceeded 34
hours and 50 percent exceeded 58 hours.
FMCSA Response. Most industry commenters argue that changes to the
restart are not necessary because drivers are not using it to maximize
hours. FMCSA agrees with ATA that some drivers do not use the restart
to maximize hours, but for ease of recordkeeping and scheduling
flexibility. If that is the case, then the
[[Page 81155]]
changes will have little impact. Only drivers who work more than 60
hours in 7 days or 70 hours in 8 days need the restart to obtain extra
hours. Drivers who do not need the restart but who only use it to
simplify bookkeeping will not lose work hours as a result of the
changes because they can already work as many hours as they prefer
without using the restart provision. Any driver who is taking two
consecutive days off a week will not be affected. If drivers, in fact,
average 44 to 52 hours on duty a week as ATA's data showed, these
drivers will not be affected. A driver who only occasionally works
maximum hours will not be affected because the rule will allow that
driver to use the 34-hour restart once, with a longer break at the end
of the subsequent week. Repeating what we said earlier on this subject,
unless a driver knows that he is working less than 60 hours a week
(e.g., a regular 10-hour day, 5 days a week), he must keep a running 7-
or 8-day total of on-duty hours to be sure he is within the limits
regardless of the restart provision or the changes this rule makes to
it. If a driver takes 34 hours or more off, he simply has a new point
from which to keep the total, but he still needs to keep track of his
total hours if he could be pressing the limits. Many drivers do these
calculations in their heads without needing to write them down. This
calculation, at any rate, is both simple (subtracting one day's hours
from the running total, then adding another day's hours to the result)
and can be conducted during waiting or refueling time, and so would
result in de minimus effort and cost to the driver. Furthermore, any
driver who only takes a restart once a week would not have to keep a
tally of hours back beyond the previous restart, because that restart
would reset the driver's cumulative available hours under the new rule,
as it does under the current rule. Any driver who works relatively
moderate hours would be unlikely to take multiple restarts in a week,
or have to worry about violating the cumulative weekly hour limit.
When used to maximize hours, the 34-hour restart adopted in 2003
allows a driver to work as many as 84 hours in 7 days. Over time,
drivers could average 82 hours a week. It is important to note that for
a driver to work these long hours he/she must be working close to 14
hours a day 6 days out of 7. The final rule reduces the maximum weekly
hours by only 3 hours for 1 week, but over time the average maximum
hours per week will be about 70 hours in 7 days. Despite the reduction
in the weekly work hours, drivers will retain significant operational
flexibility because they will still be able to work long hours in 1
week, while balancing those periods with shorter subsequent work weeks
to obtain more rest.
Comments on the 2-Night Requirement. NTSB, Advocates, a safety
official for a carrier, and about 80 other commenters supported the
proposal that each restart include two nighttime periods.
The majority of commenters on this issue opposed the requirement.
CVSA's comments were a summary of points raised by other opposition
comments. CVSA said the proposal would reduce driver flexibility,
unduly burden carrier operations that included driving time from
midnight to 6 a.m., and add more CMVs to an already overburdened
highway system at peak hours. Further, CVSA said it was difficult to
determine whether driver health benefits would result from the change.
CVSA claimed the 2-night requirement would disrupt regular weekly rest
cycles for some drivers, leading to more driver performance issues and
falsification of driver records of duty status (RODS). CVSA proposed a
consecutive 48-hour restart period (a position not shared by other
opponents of the proposal).
Some commenters stated that the two-night requirement could extend
the restart up to 52 to 63 hours (commenters offered differing
estimates of the shortest period necessary to comply with the
proposal). One association stated that the 2003 rule allows team
drivers to be idle for only 24 hours, but the 2-night requirement would
extend that time period to 41 hours.
Commenters also stated that the provision would unfairly affect
nighttime drivers. The California Highway Patrol (CHP) stated that the
actual requirement would vary for drivers on cross-country trips
because their time is determined based on their home terminal, so that
the 12 a.m. to 6 a.m. period might be either 9 p.m. to 3 a.m. if a
driver from an east-coast terminal took a restart in the Pacific time
zone or 3 a.m. to 9 a.m. if a west-coast driver needed a restart in the
Eastern time zone.
FMCSA Response. As discussed above, FMCSA has shortened the 2
nighttime periods the driver must be off duty to 1 a.m. to 5 a.m. The
impact of the 2-night requirement on the restart length will vary with
the time a driver goes off duty and the time he resumes work. For
drivers who work a regular schedule that starts at night, the 2-night
provision will generally require the driver to take 2 plus days off to
maintain the regular work schedule. For example, a long-haul driver who
normally drives at night may start at 11 p.m. and work until 10 a.m. 6
days a week; the driver will need to take 2 days plus 13 hours off to
obtain the 2 night periods and be able to return to work for an 11 p.m.
start. For drivers who work at night irregularly, the restart length
may be considerably shorter because the driver may be able to stop in
time to get 2 nights into a shorter time frame; a driver who can stop
between 7 p.m. and 1 a.m. can take the minimum 34 hours off while
obtaining 2 periods that include 1 a.m. to 5 a.m.
Some teams do currently manipulate the restart to shorten it to 24
hours; the non-driving team member counts his 10-hour off-duty time
while the other driver is driving toward the 34-hour restart, both
drivers are then off duty for 24 hours, and the driver with 34 hours
off duty starts driving while the second driver obtains another 10
hours off. Exactly how much longer the 2-night requirement will make
the restart will depend on stopping time and whether teams overlap
restarts. At a minimum, stopping a truck driven by a team for the 28
hours between 1 a.m. one morning and 5 a.m. the next morning would
provide two consecutive nighttime rest periods for both drivers. Both
drivers could meet the 34-hour off-duty requirement for a restart if
one of them was off-duty (while the other drove) for at least 6 hours
before the truck stopped, and if the other stayed off-duty for at least
another 6 hours after the truck started again. As a specific example,
suppose the first team member drives from 5 p.m. until 1 a.m. Saturday,
during which time the second team member is off-duty in the sleeper
berth, and then both drivers go off-duty for 28 hours until 5 a.m.
Sunday. Because this time off includes both Saturday from 1 a.m. to 5
a.m. and Sunday from 1 a.m. to 5 a.m., both drivers comply with the 2-
night rule. By 5 a.m. on Sunday, the second team member will have been
off-duty for a total of 36 hours (8 hours in the sleeper berth plus 28
hours while the truck is stopped), more than meeting the minimum 34-
hour off-duty requirement for a restart. Thus, the second team member
will be eligible to start driving. The first team member will, by that
point, have had only 28 hours off-duty, but will meet the 34-hour
requirement so long as he or she remains off-duty for at least the
first 6 hours after the truck starts moving.
The time that the truck would have to remain stopped for both
drivers to meet the restart requirements would depend on the time that
the truck stopped. If it stopped at midnight instead of 1 a.m., for
example, the team would have to be off-duty for 29 hours instead of 28
for
[[Page 81156]]
both drivers to be off-duty for two consecutive periods between 1 a.m.
and 5 a.m.; similarly, if the truck stopped at 10 p.m., it would have
to remain at rest for 31 hours to reach 5 a.m. a second time, and so
forth. The earlier the truck stopped, the longer it would have to
remain stopped; but the time could be minimized by planning on the part
of the team.
It should be noted that teams can do two cross-country runs before
needing a restart. If they average 50 mph, they can drive cross country
in 50 hours; at the end of the trip, one driver will have used 20 hours
of driving time and the other 30. Even allowing for loading and
unloading, both drivers will have enough hours to make a return trip
before approaching the point when a restart is needed. Many teams might
not have multi-week schedules that rely on short restarts.
As for the possibility that night drivers will ``flip'' their sleep
schedule during a restart (i.e., change from daytime to nighttime
sleep), it is likely that they do so regardless of the restart length,
particularly when taking a restart at home; otherwise they would have
minimal time to spend with their (day-oriented) families. Because
daytime sleep is shorter and of lower quality, switching to a night
sleep helps to at least attenuate the sleep debt a driver working
maximum hours builds up ([Aring]kerstedt 2003), (Hossain). Research
consistently indicates that it is difficult to get more than 4 to 6
hours of sleep during the day; sleeping during the day on days off,
therefore, simply increases the driver's sleep debt. With respect to
CVSA's question about whether there was a health impact of the 2-night
provision, these health effects are in part related to the increase in
weekly sleep; the main health impact of the restart provision, however,
is the result of the reduced maximum hours a driver can work over time.
The Agency knows of no reason why drivers would stop driving at
night, putting more trucks on the road during rush hours, to avoid the
extra hours that may be needed to meet the 2-night requirement. As
discussed previously, most drivers who regularly drive overnight do not
work enough hours to need a restart and, therefore are not subject to
the 2-night requirement. Pick-up and delivery times are, in any case,
set by shippers and receivers, not by the drivers. Drivers and carriers
will have to adjust the hours worked for those working the longest
hours, rather than change driving patterns.
CVSA's concern about concealment of HOS violations is reasonable,
but mandatory use of EOBRs, if adopted by the Agency as proposed in a
separate rulemaking proceeding on February 1, 2011, would make cheating
more difficult because the driver would not be able to mislabel driving
time.
On the issue raised by CHP about the basis for determining the 1
a.m. to 5 a.m. period, drivers' logs are based on the time zone of
their home terminal. The 2-night periods are, therefore, set by the
time at the home terminal. This approach will make it easier for
drivers and schedulers and not introduce new complexity to the rule.
Based on comments, it appears that many and perhaps most drivers prefer
to use their restart periods at home. To the extent that drivers are in
other time zones during their restart, basing the time on their
terminal time zone will also ease the concern expressed by commenters
that all drivers would be returning to duty at the same time (i.e., 5
a.m.).
Comments on the Washington State University (WSU) Study. Commenters
criticized studies on which the Agency relied in formulating its 2-
night requirement. ATA referenced studies indicating that the proposal
likely would result in drivers transitioning to nighttime rest during
the restart period, although that transition was ineffective at
mitigating sleep loss and might contribute to driver impairment during
the post-restart period. Several commenters also argued that the WSU
study (Van Dongen (2010a and 2010b)) on which FMCSA based the changes
to the restart was flawed. OOIDA criticized the WSU study as a
laboratory exercise that had only 27 subjects in phase I and 12 in
phase II, had no truck driver participants, and involved a 58-hour
restart. J.B. Hunt offered a survey of 249 nighttime drivers (who
operated between midnight and 6 a.m.); 79 percent of the survey
participants who had scheduled night shifts reported that they do not
change their sleep schedules when at home for time off. Hunt stated
that this finding was contrary to the WSU study presumptions. The
carrier added that drivers who get 10 hours of rest when off duty
should not accumulate sleep debt.
FMCSA Response. To study the effectiveness of the 2-night restart
provision, FMCSA has employed a process of testing in a controlled
sleep lab environment. This is done under the premise that if a
provision is not effective in the lab, it certainly will not be
effective in a field-related environment. That is, if people cannot
obtain adequate sleep in the best-case environment (a dark, quiet room,
with no possibility of interruption), they will not be able to obtain
adequate sleep in a normal environment, let alone in a sleeper berth at
a truck stop or beside a road. The first phase of the WSU study found
that the 34-hour restart was effective at mitigating sleep loss and
consequent performance impairment for daytime drivers, but not
effective for nighttime drivers (Van Dongen (2010a)). The second phase
tested a 2-night recovery period for nighttime drivers (Van Dongen
(2010b). The study found that the 2-night provision works better than
1-night to mitigate driver fatigue in nighttime drivers. The findings
of the WSU study could be conservative and could be likely to
understate the effect of night work on performance. In the WSU study,
the subjects did not work more than half of the full 14-hour work
period and had 58 hours off between weeks. The impact on drivers who
are working twice as much and attempting to start work again in a
shorter period is likely to be more severe than the study indicated.
The subjects in the WSU study were young healthy adults with no
apparent sleep disorders. If the study had been conducted in an
uncontrolled field environment with actual truck drivers who sleep in a
sleeper berth, the findings of performance degradation could be even
more pronounced than were found in the WSU study.
As noted in previous responses, if the carrier's survey respondents
sleep during the day on their days off, they are adding to their sleep
debt rather than reducing it. Monk (2000) found that married night
workers with family commitments typically do not retain a day sleeping
regimen during their off-duty (weekend type) break, as they want to
interact with their day-oriented family rather than be awake when
everyone else is asleep. In staying awake during the day, they
experience powerful zeitgebers (i.e., an environmental cue, such as
daylight, given to a person's biological clock to reset the sleep-wake
cycle), pulling them away from a nocturnal circadian orientation. Even
permanent night workers typically show a day-oriented circadian rhythm
(as indicated, for example, by the body temperature rhythm) on their
return to duty after a ``weekend-type'' break. Thus, to a certain
extent, even permanent night workers are often actually rotating
between nighttime and daytime circadian orientations.
With regard to the issue of sample size used in the WSU study,
FMCSA completed the power analysis to determine the minimum sample size
needed to be able to determine whether there is statistically
significant difference between two conditions--in this case taking 1
night versus 2 nights
[[Page 81157]]
off. The power calculation for the WSU study determined that the
minimum sample size is 12. WSU did find a significant effect in the
Phase II study-- that is, the 2-night restart was a significant
improvement over the 1-night restart in terms of the primary outcome
variable. That makes the issue of statistical power and sample size
(i.e., the chance of not finding an effect that is actually there) a
moot point.
The Agency also notes that a small sample size of only 12 is not
unusual for sleep studies. Two of the most cited studies in the sleep
literature are the ``Impact of Sleep Debt on Metabolic and Endocrine
Function'' by R. Spiegel (1999), and ``The Cumulative Cost of
Additional Wakefulness: Dose-Response Effects on Neurobehavioral
Functions and Sleep Physiology from Chronic Sleep Restriction and Total
Sleep Deprivation'' by H. Van Dongen, (2003). Both of these studies
were based on a sample size of 12 or fewer participants per treatment
and each of these studies has been cited more than 50 times per year
since date of publication (more than 700 and 400 times total
respectively), so they are taken seriously by the sleep research
community. Also with respect to ATA's concern about the small sample
size, the Agency notes that the original and only study used to justify
the 34-hour restart provision had a sample size of 10 and was a
laboratory-based study conducted by O'Neil (1999) for the American
Trucking Research Institute.
Comments on the 168-Hour Limitation for Drivers Working 70 Hours in
8 Days. NTSB said that, with the other changes to the restart
provisions, limiting how often drivers may use the restart should have
the effect of increasing the amount of sleep drivers receive during the
period and may encourage drivers to adopt more daytime oriented
schedules. Although Advocates et al. endorsed the restart changes as an
improvement, they argued that the limitations affected only those
drivers operating 60 hours in 7 days. They said the Agency should apply
similar restrictions to drivers who operate 70 hours in 8 days; that
is, these drivers should be able to use the restart only once in 8
days. However, they considered the 168-hour limit to be a ``positive
step for safety'' that would have a substantial impact on the portion
of the driving population most at risk of driving while fatigued--
drivers with very high-intensity work schedules.
FMCSA Response. FMCSA acknowledges that the 168-hour limitation has
different effects on the two groups: The 60-in-7-day drivers are held
to an average of 60 on-duty hours per week, while the 70-in-8-day
drivers are held to 70 hours in 7 days. The goal of this limitation,
however, is to rein in the dramatic increases in weekly hours that were
allowed by the institution of the restart in 2004, and it will
accomplish that goal as intended. Drivers working under the 70-in-8-day
provisions before 2004 could work no more than 70 hours in any 8 days,
which is an average of 70/8 x 7 or 61.25 hours per week. Under the 2003
HOS rules, a driver working 14 hours per day Monday through Friday
could build up 70 on-duty hours before midnight on Friday. If that
driver then took 34 hours off, the restart would allow for a new week
of work starting Sunday morning--only 6 days after the start of the
previous week. Continuing this pattern would mean 70 hours on-duty per
6 days, for an average of 70/6 x 7 or 81.67 hours per week. Thus, the
restart allows these drivers to cut up to 2 full days off the 8-day
period originally intended for their 70 on-duty hours. Put another way,
prior to the current rule, a driver working 14-hour days could work 5
days out of 8; under the current rule, he could work 7 days out of 8.
Taking into consideration the effects of cumulative fatigue \10\ and
impacts on driver health, FMCSA considers 81.67 hours per week to be
excessive and has, therefore, instituted a limitation to keep these
drivers from continuously working 70 hours every 6 days. The 168-hour
limitation ensures that they can put in no more than an average of 70
hours per week--an increase over the average of 61.25 hours allowed
under the pre-2003 rules, allowing for some improvements in
productivity and a chance to spend more time at home, but a dramatic
drop from the nearly 82 hours per week allowed now.
---------------------------------------------------------------------------
\10\ ``Analyses of Fatigue-Related Large Truck Crashes, The
Assignment of Critical Reason, and Other Variables Using the Large
Truck Crash Causation Study,'' FMCSA, 2008, FMCSA-2004-19608-3481;
and Sando 2010a and b.
---------------------------------------------------------------------------
The situation is quite different for the 60-in-7-day drivers. To
use the 60/7 provision, a carrier must operate only 6 days a week.
These drivers, therefore, must always have at least one full day off
every week (i.e., the days when the motor carrier is not operating).
Thus, the equivalent pattern to the one that allows the 70-in-8-day
drivers to fit their work in a period 2 days shorter than before
(namely a 60/7 driver working 56 hours in 4 days, taking 34-hours off,
and beginning the next ``work week'' after only 5 days instead of 7) is
not possible because their carrier's 6-work-day week would interfere.
Because a driver using the 60-in-7-day provision cannot accumulate the
long hours currently allowed for the 70-in-8 day drivers, the original
restart provision did not allow nearly as great an increase in on-duty
time for them as for the 70-in-8 day drivers. That is, for the 60-in-7
day drivers, the 2003 rule allowed an increase in average on-duty time
per 7 days from 60 hours to 70 hours, which is a much smaller increase
than the jump from 61 hours to 82 hours for the 70-in-8 day drivers.
From that perspective, though, the 168-hour limitation has roughly
the same impact on both groups of drivers: The maximum of nearly 82
hours per week that could be accumulated by a 70-in-8-day driver is cut
down to 70, a reduction of 14 percent and the maximum of 70 hours per
week that could be accumulated by the 60-in-7-day driver is cut by 10
down to 60, which is also a reduction of 14 percent. But FMCSA expects
that the drivers working under the 60-in-7-day provision are unlikely
to be pressing the HOS limits hard enough for this limitation to be an
issue: Because they are working for carriers that take a full day off
every week, they are unlikely to be trying to get the absolute maximum
of physical output from their resources. Many who felt too constrained
by the 168-hour limit would have the option of switching to a 70-in-8-
day pattern in any case.
Comment on the Impact of the 168-Hour Limit on Driving Time. A
shipper association, a carrier, and an individual endorsed the 168-hour
limit, provided the Agency eliminated the provision for two periods
between midnight and 6 a.m. during the restart window. Advocates also
claimed that the proposed changes to the restart provision will have
almost no effect on the intensity of work for drivers who do nothing
but drive. Advocates presented a numerical example in which a driver
takes a 34-hour restart break, and then commences a period of
alternating maximum driving and minimum resting until the 70-hour
maximum cumulative on-duty limit is reached. If 11 hours of driving
(broken up by a \1/2\ hour break) is followed by a 10-hour off-duty
break, then 70 hours of driving is reached prior to the end of 7 of
these driving shifts, interspersed with 7 half-hour rest breaks and 6
rest periods of 10 hours each. Thus, a total of [34 + 70 + (\1/2\ x 7)
+ (6 x 10)], or 167 hours will have elapsed since the beginning of the
restart break. With a limit of one restart break every 168 hours,
Advocates pointed out that the 168-hour provision would obligate the
driver to wait only another hour longer before starting a restart break
[[Page 81158]]
than would have been necessary without that provision. (A very similar
example was provided for cases allowing 10-hour driving shifts.) Thus,
they claimed, the 168-hour limit does almost nothing to prevent drivers
who only drive from using the restart to accumulate driving hours at a
high rate.
FMCSA Response. Advocates' claim that the 168-hour limitation does
almost nothing to reduce weekly driving time is both incorrect and
beside the point. It is incorrect because by FMCSA's calculations the
maximum driving hours per 7 days has been reduced from 73.9 hours down
to 70 hours, a small but not a trivial reduction. It is beside the
point because the 168-hour limitation was not aimed at cutting maximum
weekly driving hours but at cutting maximum weekly on-duty hours, which
had been increased dramatically by the 2003 rule, from about 61 to an
average of almost 82.
FMCSA also believes that the maximum-driving-hour examples used by
Advocates are not realistic. Even drivers who have no tasks other than
driving will need to inspect their trucks, fuel, do paperwork, and
contact their carriers. If even a half hour of non-driving work is
added to each 11-hour shift, the highest practical average number of
hours of driving per week drops to about 66, which is 6 hours less than
what would be possible for a driver under the existing rules who took 6
11.5-hour shifts (including 0.5 hours of non-driving work) between
restarts. Thus, under any plausible scenario, the proposed rule
provides a significant reduction in allowable hours of driving per
week. While it is true that the drivers who work the longest hours are
in the truckload sector, even those on cross-country trips--less than
one percent of shipments are cross country--will have some hours of
loading and unloading time every week in addition to their daily
driving work.
Other Comments on the 168-Hour Limitation. Most industry commenters
on the restart issue opposed the 168-hour requirement. ATA and others
stated that 34 hours was enough time to recover. OOIDA said the
requirement was an attempt to prevent drivers from working more than 70
hours a week. A number of commenters asked why taking two 34-hour
restarts in one week was objectionable. Various industries said it
would be burdensome. One carrier said it would be particularly
detrimental for carriers operating only 6 days a week. CHP asked how it
would know if it had been 168 hours since the last restart when it
conducted a roadside inspection.
FMCSA Response. OOIDA's comment is correct: The purpose of the
once-a-week restriction is to limit the ability of drivers to work the
longest hours week after week. Multiple restarts in each week would not
generally be a problem because frequent 34-hour-long off-duty periods
would leave little time in a given week to build up excessive duty
hours. If, however, restarts are taken every 6 days, a problem does
arise: Under existing rules, alternating 14 hours on-duty and 10 hours
off, a driver would reach 70 hours in less than 5 full days. After a
34-hour break, the driver could then begin this same cycle again,
totaling 70 hours on-duty every 6 calendar days, for an average of
almost 82 hours per calendar week. Limiting restarts to one every 168
hours prevents this excessive buildup of on-duty hours, while still
allowing drivers to use the restart provision to their advantage and
avoiding the complexity of special provisions for more frequent
restarts.
On the issue of how an enforcement officer will know whether 168
hours have passed since the last restart, Sec. 395.8(k)(2) requires
drivers to have 8 days of logs available on the truck (logs for the
current day and the previous 7 days). If, however, a driver has taken a
restart in the middle of the 8 days covered by the required logs, a
roadside inspector may not be able to tell whether 168 hours have
elapsed since the last restart. FMCSA recognizes that this provision
will not always be enforceable during roadside inspections. FMCSA and
our State partners will be able to verify compliance with this
provision during compliance reviews or other interventions.
Other Comments on the Restart. Advocates et al. also expressed
concern about the use of the restart by teams, where one 10-hour off
duty period could be added to 24 hours off duty to achieve a 34-hour
restart, which means that the team need only stop for 24 hours. Other
commenters suggested various periods for the restart, from 24 hours to
48 hours.
FMCSA Response. The 2-night provision ensures that a driver would
have to remain at rest for a minimum of 28 hours to allow drivers
operating in the night to accumulate 2 consecutive periods from 1 a.m.
to 5 a.m. For a team member operating solely during the day, it is true
that the truck would not have to stop for as long a period (e.g., a day
driver could enter the sleeper berth at 7 p.m. on a Friday, resting
while the other team member drove for the next 10 hours until 5 a.m.).
Then, if the truck remained at rest for another 24 hours, the first
driver would have been off-duty for 34 hours, including two nighttime
periods. This much time off was found by the WSU study to have been
enough time for a driver on a daytime schedule to recover.
Comments on the Impact of the Restart on Specific Sectors. Various
industry groups and carriers expressed concerns about the impact of the
restart changes on their sectors. Commenters supported continued
exemption of oil field operations and construction from the restart
requirement. One shipper association stated that fatigue was not a
problem in short-haul operations and, therefore, that the restart need
not be limited for these carriers.
FMCSA Response. As noted above, the applicability of the restart to
construction and oilfield operations is unchanged. The concerns about
the general economic impact of the restart are discussed in detail in
Section IV. ``Discussion of All Comments'' B. ``Economic Impacts.'' As
for short-haul operations, the commenter offered no basis for its claim
that fatigue is not a concern for drivers in these operations if they
are working maximum hours. Local drivers may be less likely to be
fatigued because they do not work the longest hours, but those drivers
do not need to use the restart to obtain extra hours.
H. Duty Period/Driving Window
Comments on 13 versus 14 hours on duty. NTSB supported limiting
drivers to 13 hours on duty in a 14-hour consecutive period. Most
commenters on this issue opposed the change to 13 hours because they
claimed it could prevent drivers from completing their work, reduce
drivers' flexibility and potential earnings, require carriers to change
routes, require additional drivers and equipment, increase parking
problems, increase stress, cause confusion for enforcement personnel,
and limit the ability of carriers to serve their customers. Con-way
stated that 50 percent of its drivers work 12 to 14 hours a day, 30
percent work 10 to 12 hours. CVSA stated that there appears to be a
lack of scientific studies, or collected data, to indicate that the
movement from a 14-hour workday rule to a 14-hour driving window, with
a 13-hour on-duty limit, will improve the overall performance of a
driver of a CMV. OOIDA and others urged FMCSA to focus on driving time,
and not on regulating the overall ``bottom line'' time spent working.
FMCSA Response. FMCSA agrees that the limited benefits of the 13-
hour provision do not compensate for the increased complexity of the
requirement, both for drivers and
[[Page 81159]]
enforcement personnel. The Agency has, therefore, eliminated this
provision.
Comments on Breaks within the Duty Period. The largest number of
comments on duty time asked FMCSA to allow drivers to take breaks that
do not count against the 14-hour limit, so that off-duty time would
extend the 14-hour period. A few commenters argued for shorter or
longer duty periods (from 12 to 16 or unlimited hours).
FMCSA Response. As FMCSA discussed at length in the 2003, 2005,
2007, and 2008 rulemakings, allowing off-duty time to extend the work
day results in drivers being allowed to drive long past the time when
fatigue becomes extreme. The 14-consecutive-hour rule was adopted to
prevent that and to help drivers maintain a schedule that is consistent
with circadian rhythms. Breaks will count against the 14-hour period.
Comments on Night Drivers. FMCSA requested comments on whether
drivers who drive at least three hours between midnight and 6 a.m.
should have an hour less duty time available (to provide a longer
period to obtain sleep). Fewer than 50 people commented on the issue,
but most opposed the suggested provision because of the adverse impact
it would have on them, including changes in scheduling deliveries,
increased costs, reduced productivity, and problems in meeting
customers' needs. One commenter asserted that such a provision could
lead to lower pay, driving on congested roads, greater turnover of
drivers, and less experienced drivers on the road. J.B. Hunt found that
its drivers who drive occasionally or regularly in the midnight to 6
a.m. window have a 2010 reportable crash rate per million miles that is
more than 30 percent lower than the 51 percent of the driving force who
do not drive at night. Schneider National's examination of crash data
suggested that more analysis is required to definitively conclude that
reducing work hours would reduce crash rates for night drivers. ATA
opposed the restriction and noted that it would create a forward
rotation in scheduling that could disrupt drivers' natural circadian
rhythms. FedEx Corporation criticized FMCSA's data supporting this
provision.
FMCSA Response. After considering the comments on whether nighttime
drivers should have one less hour of duty time, FMCSA concluded that it
does not have sufficient basis to move forward with this provision. As
a result, FMCSA has not adopted the shorter schedule for night drivers.
Comments on Extending the Driving Window. FMCSA proposed allowing
the extension of the driving window to 16 hours twice a week, without a
change in allowed duty time. Relatively few commenters addressed this
issue and those that did were about evenly divided pro and con. Some
commenters specifically expressed their support for keeping the 14-hour
window. One commenter opposed any change in the 14- and 10-hour format,
as that would appear to defeat the science-based logic for the current
rules. The commenter stated that the rules were enacted to prevent the
alteration of circadian cycles, and the safety performance of the motor
carrier industry in the period following their adoption speaks to the
correctness of that underlying science.
ATA and several other commenters supported two 16-hour periods
because that approach could provide drivers with additional flexibility
to drive when conditions are optimal. OOIDA and an individual driver
believed that the extension to 16 hours was a good start, but did not
go far enough. Advocates et al. and other commenters opposed the 16-
hour window for various reasons, including the view that the provision
could be confusing, lead to logbook violations, require breaks away
from home, cause a forward schedule rotation, and allow driving late in
the duty period; they also stated that a 16-hour window lacked
supporting data. A carrier pointed out that the proposal also mandates
that any work, however brief, that occurs past the end of the 14th hour
constitutes use of one of the 16-hour days. The commenter stated that
the effect of changing the nature of the 14-hour rule to restrict work
that occurs past the end of the 14th hour (rather than to restrict only
driving after the end of the 14th hour) would be to eviscerate the new
16-hour provisions. Other commenters argued that the increase in the
driving window would be meaningless because of the reduction in maximum
on-duty time and the need to anticipate when an unexpected event will
occur. Schneider National stated that it would be extremely difficult
to manage particularly with electronic logging; to be practical, the
carrier would have to pre-approve the use of the longer period, but
that would defeat the purpose of using it for unexpected delays.
CVSA noted that anytime there are exceptions outlined in a
regulation the difficulty of uniform enforcement practices is greatly
multiplied, and the falsification of records of duty status could occur
as drivers try to create more on-duty hours within the 14- and 16-
consecutive hour driving window. Drivers could claim inspection,
servicing (fuel, etc.), and many other forms of on-duty time as off-
duty, to create a larger window for driving time. With no supporting
document requirements for drivers, it would be difficult, at best, to
determine actual regulatory compliance or non-compliance during
roadside enforcement.
A few commenters supported a twice-weekly extension of the driving
window. Other commenters argued that drivers should be able to use the
extension even more frequently. One carrier disagreed with FMCSA's
proposal that the use of the 34-hour clock would not ``reset'' the use
of the 16-hour provision. A trucking association indicated that
although carriers cannot always schedule each trip accurately due to
unforeseen circumstances, such as adverse weather or traffic
conditions, drivers and dispatchers plan for particular schedules.
Because it would only be available twice per week, this extension would
likely be used infrequently by most carriers who require as much
certainty as possible in any scheduled trip. Drivers warned that
shippers and receivers may abuse the 16-hour period to extend waiting
time. Some carriers were skeptical about the value of the provision,
and drivers were sharply split, some favoring it, but others arguing
that carriers and shippers would force them to use every bit of the 16
hours, rather than reserving the extra time for special needs.
FMCSA Response. FMCSA has decided not to adopt the proposed two 16-
hour driving windows. The Blanco study showed increasing risk as the
duty period increases. The study is consistent with a large body of
other research pointing to the same conclusion (e.g., Jovanis, TIFA,
studies of accident rates in other sectors discussed above). Under the
proposed provision, long-haul drivers could have been driving more than
16 hours after waking, when fatigue becomes acute. That is a risk that
can neither be ignored nor accepted.
Comments on Requiring Drivers to Go Off Duty at the End of the
Driving Window. Of the fewer than 200 commenters on this issue, some
supported the proposal to end work at the end of the duty period. Most,
however, objected to the provision. Reasons for opposition included a
reduction in driver pay, the need for carriers to incur added costs and
revise scheduling, the adverse effect on providing customer service,
the lack of scientific support for the revision, and questioning
FMCSA's authority to determine the number of non-driving work hours.
AMSA stated that the
[[Page 81160]]
current rule allows a driver to complete inventorying, packing,
loading, or unloading at the end of the day without needing to deploy
another crew or come back the next day to finish the job. McLane stated
that the current rule benefits team drivers because both team members
can help unload even if one has used his full 14 hours. It stated that
restricting additional time does not contribute to public safety
because the first driver cannot drive again until he has taken his 10
hours off. The provision would force more drivers and trucks on the
road to make the same number of deliveries.
FMCSA Response. On the question of FMCSA's authority to regulate
work hours beyond driving hours, the Agency's statutory authority
derives from 49 U.S.C. 31502(b), which authorizes the FMCSA to regulate
hours of service and more broadly from 49 U.S.C. 31136(a), which
mandates the Agency to ensure that the vehicle be operated safely and
that the responsibilities imposed on a driver do not impair his ability
to operate the vehicle safely. Long work hours can impair a driver's
ability to operate safely. Moreover, none of the statutes authorizing
FMCSA to regulate hours-of-service limit the meaning of the term
``hours-of-service'' to driving hours, and it is entirely reasonable
for FMCSA to construe the term to include time spent by drivers engaged
in activities associated with their operation of CMVs. In fact, that
construction was first adopted by the Interstate Commerce Commission
(ICC) in the 1930s [see 3 M.C.C. 665, 690 decided December 29, 1937]
and has been the position of all Federal agencies charged with
enforcement of the HOS regulations for 70 years. However, the Agency is
not using this authority to require drivers to go off duty at the end
of the driving window.
There are too many uncertainties associated with such a requirement
to warrant adoption at this time. The Agency has little direct data on
the frequency of work beyond the 14th hour, the average number of
drivers involved, or the average amount of time spent on duty after the
14th hour. Efforts to derive this information from available sources
were unsuccessful. FMCSA was therefore unable to calculate the cost to
the motor carrier industry of requiring drivers to go off duty at the
end of the 14th hour. The benefits of such a requirement are also
unknown. Bureau of Labor Statistics (BLS) data indicate that truck
drivers have a substantially higher rate of occupational injuries than
most American workers, including the kinds of injuries related to non-
driving work (back pain, sprains and strains, overexertion in lifting).
Research on occupational injuries and accidents submitted with the
comments of NIOSH and Advocates et al. clearly links long work hours to
an increased risk of such injuries; the studies indicate that the risk
of injuries rises sharply after 14 hours (Dembe). This research,
however, is not specific to the motor carrier industry, which further
compounds the uncertainty created by the lack of data on drivers
working beyond the 14th hour. The Agency remains concerned with long
work hours and will seek additional research on the risk of working
past the 14th hour, but given the absence or uncertainty of relevant
data at this time, FMCSA cannot justify promulgation of this proposed
rule provision.
I. Paragraphs 395.1(e)(2) and (o)
Comments. FMCSA proposed eliminating Sec. 395.1(o), which allows
some regional drivers to extend their driving window to 16 hours once a
week, because it would conflict with the proposed two 16-hour driving
windows. The Agency also sought comments on whether Sec. 395.1(e)(2)
should be eliminated for the same reason; this paragraph allows certain
local drivers to extend their driving window to 16 hours twice a week.
About 20 commenters responded. Some of the commenters sought other
changes to the provisions, while others stated that the provisions were
needed.
FMCSA Response. FMCSA has decided not to rescind either of these
paragraphs. The NPRM discussed that option to avoid the excessive
complexity that would result from adding two 16-hour driving windows
per week to the existing 16-hour provisions. Because the Agency is not
extending the driving window from 14 to 16 hours twice a week, as
proposed in Sec. 395.3(a)(2)(ii), there is no need to remove Sec.
395.1(e)(2) or Sec. 395.1(o). FMCSA continues to believe, as explained
in the 2005 final rule, that the risk of fatigue and fatigue-related
crashes for the local short-haul drivers who can utilize the existing
16-hour provisions is less than for regional or long-haul drivers
subject to the 14-hour driving window (70 FR 49978, at 49980, 49995-
49996, August 25, 2005). Local short-haul drivers typically drive
regular schedules of limited mileage during daylight hours, with
frequent non-driving breaks, and return to their home terminal in time
to sleep in their own bed virtually every night. A study cited in the
2005 final rule (Balkin) showed that short-haul drivers often take naps
of 1-2 hours within their work shift to reduce any fatigue accrued
during the work day. The authors of a 1997 study of driver fatigue in
short-haul operations, which was also cited in the 2005 rule (70 FR
49996), concluded that, despite the limitations in the available data,
``the numbers seem to indicate that class 7-8 tractors in over-the-road
service have higher fatigue related fatal involvement rates, per truck
or per mile, than the other categories of trucks that were considered''
(Massie). The minimization of fatigue associated with short-haul
operational patterns may account for the results noted by Massie, et
al. In addition, the requirement for 10 hours off duty between shifts
makes the use of consecutive 16-hour days under Sec. 395.1(e)(2)
unlikely because the driver would have to start his second day 2 hours
later than normal and his third day 4 hours later, significantly
disrupting his normal schedule. On the other hand, while the Blanco
study on work hours was limited to line and long-haul drivers, it does
raise concern regarding driving and working long daily hours. The
Agency will therefore continue to study the risks posed by allowing the
16-hour exception for local short-haul drivers.
J. On-Duty Definition
Comments Supporting the Changes to the On-duty Definition. FMCSA
proposed to exclude from the definition of on-duty time any time
resting in a parked CMV or up to 2 hours in the passenger seat of a
moving CMV, immediately before or after 8 consecutive hours in the
sleeper berth. Fewer than 200 commenters addressed the proposed changes
to the definition of on-duty time. ATA, OOIDA, and many others
supported the proposed change. ATA stated that the vast majority of
team drivers are not able to rest or sleep in a sleeper berth for a
full 10 hours, and they would prefer spending two of those hours in the
passenger seat. Three carriers supported the proposed changes, but they
did not think the rest periods should be deducted from the permissible
14-hour on-duty time. One commenter asked why a driver who can only
sleep six or seven hours in the sleeper berth should not be allowed to
sit in the passenger seat for the remaining time.
A rail delivery company noted that exclusion of time resting in a
parked vehicle from the definition of on-duty would be very beneficial
for local short-haul drivers who have a rest period between busy
periods or those who must park awaiting loading and unloading. TCA
suggested that allowing
[[Page 81161]]
drivers to clock time spent resting in a parked CMV would be helpful
for the industry provided that the definition of ``resting'' includes
reading, checking emails, talking to friends or family, or other
similar activities. If so, TCA commented, the ability to count hours
wasted at shipping facilities as off-duty will benefit the truckload
industry tremendously. It further stated that, although the adjusted
definition would not reduce detention times, it could help prevent them
from being such a detriment to carriers. The Petroleum Marketers
Association of America supported allowing time spent by a driver in a
parked CMV to count as off-duty time, and thought that up to three
hours would be appropriate. Another commenter favored a three-hour
allowance for drivers parked in line waiting to load product.
FMCSA Response. FMCSA is adopting the changes as proposed. FMCSA
emphasizes that the changes to the definition do not alter the existing
parts of the definition that define, as on duty, ``(5) All time loading
or unloading a commercial motor vehicle, supervising, or assisting in
the loading or unloading, attending a commercial motor vehicle being
loaded or unloaded, remaining in readiness to operate the commercial
motor vehicle, or in giving or receiving receipts for shipments loaded
or unloaded.'' Unless a driver is released from all responsibility for
the vehicle while waiting to be loaded or unloaded, time spent waiting
is still considered on duty time.
Comments Opposing the Changes to the On-duty Definition. Advocates
et al., CVSA, and some other commenters opposed the proposed change,
primarily because the rule did not specify a limit (such as two or
three hours) for the amount of time a driver could rest in a parked
CMV. Commenters expressed concern that drivers could ``rest'' in the
passenger seat for 10 hours to re-qualify without the benefits of truly
restorative rest. In addition, they stated that the rule change is
complicated, would make enforcement more difficult, and could lead to
logbook falsification. One commenter warned that the exclusion from on-
duty time might be used by some drivers for time spent waiting for
loading or unloading, which may not provide a real opportunity for
rest. CVSA added that the provision cannot be justified without further
studies and data collection. A carrier claimed that the change in the
definition would expand FMCSA' s authority beyond professional drivers
and include driver-qualified dock laborers as well, which would
encroach upon Department of Labor authority and result in confusion
over compliance. Advocates et al. suggested the need for a
clarification that drivers cannot use vehicles other than the CMV they
are operating for these purposes.
FMCSA Response. FMCSA disagrees that the rule should include a time
limit in a parked CMV. Under the previous definition, a driver could be
forced to spend time up to the 10-hour break out of the cab even if
there were no safe place to do so or no shelter or facilities. It is
surely better that the driver can rest in the cab in these
circumstances. With the 14-hour limit, it is unlikely that either the
carrier or driver will want the driver to spend extended periods off
duty in a parked truck during the duty day because all of the time
counts against the 14-hour period. Drivers are unlikely to tolerate 10
hours at a stretch off-duty without a sleeper berth or provision of a
place to sleep; any carrier compelling drivers to sleep in the cab for
10 hours may have trouble retaining its drivers.
The rule change is not complicated; it simply defines when a driver
may log certain time as off duty rather than on duty, not driving. The
change seems unlikely to lead to any more logbook falsification than
already exists. The change in the definition does not alter FMCSA's
authority. If a dock worker also drives a CMV in interstate commerce,
he is subject to FMCSA rules when driving the vehicle and his other
work is included in his on-duty not driving time and counted against
his weekly limits.
Other Comments on the On-Duty Definition. Two carriers asked why
the two hours in the passenger seat must be immediately before or after
the eight-hour period. One commenter suggested that the provision could
increase CMV idling time if drivers who formerly rested outside their
vehicles will now take ``off-duty'' time in a parked, but idling, CMV.
Another carrier pointed out that redefining an activity as off-duty
should not change the rule's health benefits.
Although CVSA did not support the change in the definition of on-
duty time, it believed EOBRs will help compliance and enforcement
efforts if this provision were to be adopted as proposed. In addition,
it urged FMCSA to require specified supporting documents to be
maintained on a CMV, with access available to roadside enforcement
personnel, which would provide a means whereby duty status entries
could be verified or refuted.
FMCSA Response. ATA requested the proposed re-definition of on-duty
time in September 2005 to allow a team driver to log off duty up to 2
hours riding in the passenger seat immediately before or after the 8-
hour sleeper berth period. Many drivers told ATA and repeated in the
listening sessions and in docket comments that they take 10 consecutive
hours off duty in the sleeper berth to simplify their recordkeeping.
This rule allows drivers to take 8 consecutive hours in the sleeper
berth as required by the current rule, and to take an additional 2
hours in the passenger seat when the vehicle is moving, without
artificially confining them to the sleeper berth for the entire 10-hour
period.
FMCSA also proposed excluding from the definition of ``on duty,''
time spent resting in or on a parked CMV. Drivers in the past have
noted that the current definition makes it difficult for drivers of
CMVs without sleeper berths (known as day cabs) to rest because they
were considered to be on duty if they were in a parked truck. In many
cases, the safest, most comfortable, and often the only place for such
a driver to rest during a duty tour will be in the parked truck. This
change to the on-duty definition to allow drivers resting in or on a
parked vehicle may lead to more idling, but if the alternative is that
a driver has to stand outside, without shelter, in bad weather or in an
unsafe location, more idling is the lesser of the two evils. In any
case, the proliferation of State and local anti-idling laws makes it
questionable whether this amendment will increase idling time. The
changes to the definition were not considered in evaluating the health
benefits of the rule; at this time, there is no obvious way to evaluate
the health effects of such a small change. The issue of supporting
documents is beyond the scope of this rulemaking.
K. Penalties
Comments on the Penalty Provision. Fewer than 100 commenters
discussed the proposal to consider driving (or allowing a driver to
drive) 3 or more hours beyond the driving-time limit to be an egregious
violation and subject to the maximum civil penalties. Advocates et al.
argued that the maximum penalties should be triggered by violations
that exceed 2, rather than 3, hours over the daily and weekly driving
limits. Another advocacy group argued that because the Agency devoted
little attention to the issue in both the NPRM and the RIA, it is
unclear why FMCSA considers a violation of 3 or more hours to be
egregious whereas a violation for anything less is not. This commenter
asserted that without more explanation, the selection of a 3-hour
``trigger'' for maximum penalty eligibility appears entirely arbitrary.
[[Page 81162]]
Carriers and drivers did not generally oppose the imposition of
maximum penalties for egregious violations, but commented on the scope
and applicability of such a provision. One carrier commented that the
fact that the imposition of penalties would not be automatic is
critically important for the fair administration of this provision. A
driver similarly commented that there are situations caused by crashes,
traffic congestion, or weather where additional driving time would
minimize the possibility of an unsafe condition.
Regarding applicability, one carrier argued that penalties should
not apply to carriers unless there is proof that the carrier is
complicit in the violation. A driver argued that the provision making
both driver and companies responsible for violations is good because
too often the carrier causes the driver to push his limits past good
safety practices. Another carrier argued that shippers and receivers
should be accountable for their actions in instances where shippers or
consignees force carriers/drivers to leave shipper premises, even
though the driver is over his/her hours. The carrier argued that
because the unpredictable load and/or unload times are difficult to
plan, such a situation is often out of its control. For similar
reasons, a driver argued that duty time violations that occur while
getting to a safe place to park (if the driver still has driving time)
should not be considered violations. One carrier argued that it does
not believe that an egregious violation concept similar to that
proposed should apply to other provisions (e.g., duty time, driving
window, weekly limits, and restart).
FMCSA Response. The selection of 3 hours as the threshold for an
egregious violation was intended to acknowledge the rapid increase in
the risk of fatigue-related crashes as work and driving hours increase,
and the consequent seriousness of the violation. While opinions may
differ about the point at which a violation should be treated as
egregious, the Agency made a reasonable policy choice that reserves the
maximum penalties for violations that are unequivocally serious.
FMCSA agrees that it is important not to impose the maximum penalty
automatically, and to take into account special circumstances. It
disagrees, however, that carriers should not be subject to such
penalties unless there is proof of their complicity. Under 49 CFR
390.11, motor carriers have long been required to ensure that their
drivers comply with the FMCSRs. Carriers are responsible for scheduling
and for oversight of drivers' HOS compliance. That includes scheduling
runs that will not result in egregious driving-time violations and
penalizing drivers who commit such violations despite company policy.
FMCSA does not have the authority to act against shippers and
receivers, although it recognizes that the practices of and pressures
upon shippers and receivers often contribute to driver violations of
the HOS limits. Regardless, it is still the responsibility of the
driver and the carrier to stay within the limits. It is difficult to
see how a driver who has reached his driving limit when he arrives at a
receiver's or shipper's facility would, if forced to leave after
loading or unloading, need to drive three hours more before stopping,
which could trigger the maximum potential penalty. FMCSA did not
propose to apply the provision to any requirement other than driving
time.
Other Comments on Penalties. Another commenter asserted that
FMCSA's operating statute does not authorize it to regulate the hours
of service of self-employed truckers or instructors who are not
employees of a motor carrier.
FMCSA Response. Contrary to this assertion, the Motor Carrier
Safety Act of 1984 gives FMCSA broad authority over both an
``employee''--defined as ``an operator of a commercial motor vehicle
(including an independent contractor when operating a commercial motor
vehicle)''--and an ``employer''--defined as ``a person engaged in a
business affecting interstate commerce that owns or leases a commercial
motor vehicle in connection with that business, or assigns an employee
to operate it'' (49 U.S.C. 31132(2) and (3), respectively). An owner-
operator could be either an ``employee'' or an ``employer'' and in both
cases would be subject to FMCSA's jurisdiction.
L. Compliance Dates
Comments. Commenters suggested compliance dates of 6 to 18 months
from the date of publication. The Ohio Public Utilities Commission
supported 6 months and stated that inspectors would require substantial
retraining and that software modifications would be necessary. It also
suggested that FMCSA should provide States with the training and
software updates at least 3 months prior to the rule's effective date
to allow sufficient time to test the software and complete training.
Three carriers and a shippers' association argued that a compliance
date should be no sooner than 1 year after publication because that
much time would be necessary to train drivers and reprogram electronic
log software. One carrier commented that, given the timing of the
implementation of the EOBR regulations, it appears likely that
programming changes necessary for HOS compliance will overlap and be
significantly impacted by the necessary programming and installation of
new EOBR-compliant hardware. A shippers' association commented that
companies would need a year to transition to a 10-hour driving limit
because they would be required to make extensive operational changes
and acquire additional drivers and equipment, to adjust to the more
restrictive requirements. Schneider National, which suggested a lead
time of at least 18 months, stated that time would also be needed to
test updated systems. It commented that training curriculum would need
to be developed, contracts would have to be re-negotiated, and lanes
would need to be re-engineered to ensure compliance. XATA Corporation,
an EOBR developer, argued that FMCSA would need to allow between 4 and
6 months for software/hardware development time, between 4 and 6 months
testing, and between 4 and 6 months certifying and validating for
deployment.
FMCSA Response. The compliance date, July 1, 2013, is the date on
which motor carriers of property and drivers must begin to comply with
specified provisions of this rule. Because this final rule is more
stringent than the previous rule, drivers and motor carriers of
property may comply with its provisions immediately if they wish, but
they are not required to do so until the compliance date.
Generally, when implementing safety rules, the Agency prefers to
set shorter compliance dates. However, in this case, the Agency
recognizes, as many commenters pointed out, that industry and law
enforcement may need extra time to train personnel and to adjust
schedules and automated systems. With the extended compliance date
provided for relevant provisions of this rule, affected entities will
have nearly 18 months in which to prepare for these changes. The motor
carrier and associated industries and the law enforcement community are
dynamic sectors; they have been able to adjust successfully to previous
regulatory changes within shorter implementation periods. Based on the
comments received to this rule and its experience with the industry and
the law enforcement community, FMCSA is confident that an
implementation date of July 1, 2013, is sufficient for affected
entities to be able to adjust to this rule's requirements.
[[Page 81163]]
M. Other Comments
Comments on Complexity. Commenters said that the proposed rule was
too complicated for the average truck driver and would make compliance
and enforcement by carriers and law enforcement much more difficult.
The Pennsylvania Motor Truck Association said the complexity of the
NPRM would discourage enforcement personnel from fully enforcing it.
OOIDA said that the proposed rule would lead to inadvertent logging
errors by drivers and enforcement errors by enforcement personnel.
Advocates et al. said that claims that the proposed rule would make
the HOS rule more complex to operate under or enforce were misguided.
They said that the proposed rule contains ``simple, reasonable, common
sense ideas'' that are not too complicated to understand. They also
suggested that if the complexity of the HOS rules is a concern, then
the 34-hour restart provision should be eliminated altogether. They
added that FMCSA's companion proposal to require EOBRs would help
simplify record-keeping and enforcement of the HOS rules.
FMCSA Response. FMCSA has simplified the final rule (e.g., by
eliminating the 13-hour provision and the two 16-hour periods). It
should be noted, however, that before the NPRM was issued the Agency
had, in fact, tested the proposed rule with a panel of its own
inspectors, some of whom are former drivers or carrier employees
responsible for safety. These inspectors were able to grasp the rule
very quickly, and most thought the industry would adapt equally
rapidly.
Comments on Flexibility. A substantial number of commenters
complained that the proposed rule (like the 2003 rule) did not provide
drivers with the ability to rest when they need to. Commenters made
this point particularly in the context of the duty period, but also
raised it in relation to breaks, the restart, and sleeper berth
periods. Many of the commenters stated that when they asked FMCSA for
flexibility at the public listening sessions in 2010, what they meant
was the flexibility provided by the pre-2003 rule, where off-duty time
stopped the clock and did not count against daily limits.
FMCSA Response. FMCSA has provided some flexibility in the final
rule, but has no intention of returning to the pre-2003 standard. Under
the rules the drivers are seeking, they could be on duty and drive well
past 14 hours after they came on duty, when studies show that fatigue
can become extreme. Drivers under the pre-2003 rule could change their
sleeping time by several hours from day to day, disrupting their
circadian clocks and further adding to their fatigue.
Comments on the Oilfield Exemption. FMCSA proposed to revise the
oilfield operations exception (Sec. 395.1(d)(2)) to clarify the
language on waiting time and to state that waiting time would not be
included in the calculation of the driving window. Some commenters
supported the proposed revision. CVSA added that the change would allow
enforcement personnel to properly identify when actual waiting time is
being used at a natural gas or oil well site. However, it said that
enforcement would still be difficult because of the lack of a
definition for ``commercial motor vehicles which are specially
constructed to service oil wells.'' CVSA asked FMCSA to clarify which
specific types of equipment qualify for this exception by adding a
definition to Sec. 395.1(d)(2). A transportation consultant said that
the oilfield exemption would be helpful in some instances, but it would
not help drivers on ``non-commercial driving days.'' She said that
limiting the number of hours that a driver can work on such days ``just
doesn't seem fair and would severely cripple the oilfield industry.''
A carrier opposed the proposed language that would prohibit
specially trained drivers of CMVs that are specially constructed to
service oil wells from using the exemption for 100 air-mile radius
drivers (Sec. 395.1(e)(1)). The carrier said that its past use of this
exemption has not been a safety hazard, and that the proposed
prohibition would be an unnecessary burden on the oil and gas industry.
This carrier also requested that FMCSA modify the proposed language
that specifies how drivers using this exemption should record their
duty status. The carrier asked that FMCSA allow the separate ``waiting
time'' line to be considered as an ``off duty'' entry without the
driver having to make two entries.
Other commenters argued that if drivers in oilfield operations are
allowed to turn off the 14-hour clock, all other commercial drivers
should also be allowed to do so. Three commenters, including NTSB,
opposed the oilfield exemption itself. They argued that drivers in
oilfield operations need rest and breaks from work as much as other
drivers. NTSB said that such exemptions ``are likely to lead to
increased risk for the exempted population and the driving public.'' A
driver said that FMCSA should rewrite this provision so that it is
clear that a driver cannot extend the 14-hour clock unless he or she
has access to a sleeper berth or other sleeping quarters.
FMCSA Response. The Agency did not propose substantial revisions
to, or elimination of, the Sec. 395.1(d) oilfield exception. The
revisions clarify existing regulatory language regarding the
permissible methods of recording ``waiting time.'' They also affirm
that ``waiting time'' does extend the 14-hour driving window, as FMCSA
has stated in its Web site's Frequently Asked Questions and other
public documents since the 14-hour rule was established in 2003
(effective in January 2004).
FMCSA did not propose any revisions to definitions of terms used in
the Sec. 395.1(d) exception and cannot go beyond its proposals when
publishing this final rule. The terms, such as ``specially constructed
to service oil wells,'' have been in place for nearly 50 years and have
been clarified in many documents and interpretations during that time.
The Agency believes that the operational flexibility allowed by the
Sec. 395.1(d) exception necessitates accurate recordkeeping for
enforcement purposes. This is best accomplished through the use of RODS
(``logs'') in accordance with Sec. 395.8, or electronic devices
compliant with Sec. 395.15. Many drivers would not be eligible to use
the 100 air-mile radius exception in Sec. 395.1(e) because their
schedules would not meet the conditions of the exception (e.g.,
returning to the normal work reporting location within 12 hours);
therefore, the Agency does not believe that the improved recordkeeping
requirement will impose an unnecessary burden.
Comments on State Issues. CVSA, California Trucking Association
(CTA), and the Public Utilities Commission of Ohio (PUCO) commented on
the impact of the NPRM on Federal and State law enforcement agencies.
They expressed concerns about the costs that States would incur to
implement the rule. PUCO and NPTC suggested that FMCSA work with State
regulators to implement a pilot program to gather information on the
proposed rule's effect on safety and feedback on State enforcement and
industry compliance challenges. CTA said that the proposed rule would
cause enforcement to suffer during the transition period, because
enforcement officers would be taken away from their duties for training
on the new rules. CVSA said that the proposed rule was confusing and
would be more difficult to enforce at the roadside than the current
rules, generating a lack of uniformity that would have a negative
impact on FMCSA's CSA initiative.
[[Page 81164]]
FMCSA Response. As noted above, FMCSA tested the proposed rule on
its own inspectors and found that they had no trouble learning the
changes quickly. Most thought the industry would adapt equally rapidly.
The final rule is less complex, which should further reduce training
time. The retention of the previous 11-hour driving-time limit also
ensures that drivers will not need to revise their recordkeeping
practices on this point. Any rule change requires some re-education,
but that is not a reason to forgo needed changes.
Comments on Fatigue Risk-Management Programs. ATA said that rather
than implement the proposed rule, FMCSA should focus its expertise and
resources on sleep-disorder issues, including training and screening,
and promote (but not mandate) the use of fatigue risk-management
programs as are promoted in other modes. CVSA also agreed that FMCSA
should facilitate the implementation of fatigue management programs and
driver health and wellness programs in the industry. Dart Transit
Company said that FMCSA has failed to reasonably recognize legitimate
fatigue management proposals, as demonstrated by its denial of the
company's proposal in early 2010.
FMCSA Response. The Agency continues to consider the role of sleep
disorders among CMV drivers, but the issue is beyond the scope of this
rulemaking. FMCSA understands that fatigue management programs may be
helpful, but given the large number of active carriers, it is hard to
imagine how such programs could be monitored by the Agency or enforced
at roadside. Inspectors would have no way of determining whether the
carrier had a plan or, if so, was operating in compliance with it.
Other modes may promote their use, but only the Federal Aviation
Administration (FAA) has proposed allowing these programs to substitute
for some or all of the flight and duty time limits and then only with
FAA approval and oversight of the specific plan. With the very limited
number of air carriers and their highly computerized scheduling
systems, FAA inspectors would be able to monitor compliance in a way
that is simply not feasible in trucking.
Comments on Consistency with Executive Order 13563. The U.S.
Chamber of Commerce cited Executive Order 13563, ``Improving Regulation
and Regulatory Review,'' which President Obama issued in January 2011.
The Chamber said that the proposed rule is in ``direct contradiction''
to the Executive Order and that the rule would be a model of the type
of regulation that ``actually produces lower safety standards while
simultaneously hurting business productivity in the domestic and global
supply chain.'' The National Turkey Federation requested that FMCSA
carefully review the proposed rule in accordance with this Executive
Order.
FMCSA Response. The final rule is consistent with Executive Order
13563. The rule will reduce fatigue and improve driver health, while
having relatively small impacts on business productivity. As discussed
at the beginning of this section, the claims of severe impacts made by
some commenters were not supported by facts. ATA's own economic
consultant stated that the Agency had overstated the use of certain
rule provisions, which led to an overstatement of the costs. (See
Section IV.''Discussion of All Comments'' B. ``Economic Impacts'' and
Section VI. ``Required Analyses'' A. ``Executive Order 12866 and
Executive Order 13563'' for discussions of Edgeworth.) In fact,
Executive Order 12866, with its directive to use ``the least burdensome
tools for achieving regulatory ends,'' thus reinforcing the statutory
mandate to consider the ``cost and benefits'' of proposed rules [49
U.S.C. 31136(c)(2)(A) and 31502(d)], was a major factor in FMCSA's
decision not to adopt the 10-hour driving limit identified in the NPRM
as the Agency's preferred option.
Comments on Motor Carrier Safety Advisory Committee (MCSAC). ATA
said that MCSAC has recommended that FMCSA conduct effectiveness
reviews of a number of regulations, including Part 395: Hours of
Service of Drivers. ATA called it ``regrettable'' that FMCSA did not
conduct an effectiveness review before issuing a proposed rule.
According to ATA, the review could have revealed whether changes are
necessary and--if so--to which provisions of the rule. Further, it
would have helped to provide meaningful justification of the changes
that could be used in the Agency's regulatory impact analysis.
FMCSA Response. As ATA is aware, the schedule for this rulemaking
is constrained by legal agreements. The rulemaking could not be delayed
for yet another review that would simply repeat the same research that
the Agency had conducted and continues to conduct on issues related to
HOS.
Comments on the Baseline for the Rulemaking. ATA and many industry
commenters argued, either explicitly or implicitly, that FMCSA had to
prove that the 2003 rule was increasing the risk of crashes before a
change would be justified. Advocates et al., in contrast, stated that
the 11th hour of driving and the 34-hour restart had never been
adequately supported by evidence. They stated that unless the Agency
can demonstrate that 2003 changes would improve safety and not
adversely affect driver health, the 2003 provisions cannot stand. The
baseline for the rulemaking, in their argument, should be the pre-2003
10-hour driving limit and no restart.
FMCSA Response. Arguments about what the Agency should have done in
2003 have been overtaken by time and events. The 2003 rule was replaced
by notice and comment rulemaking in 2005. In 2007, the DC Circuit
vacated two requirements of that rule because of the Agency's failure,
first, to provide an opportunity for comment on one part of the
methodology of its driver fatigue model and, second, to explain another
part of that methodology. OOIDA v. FMCSA, 494 F.3d 188 (DC Cir. 2007).
FMCSA addressed both of those deficiencies in its 2007 interim final
rule (IFR) (72 FR 71247, December 17, 2007) and adopted the IFR as
final in 2008 (73 FR 69567, November 19, 2008). In 2009, Advocates,
Public Citizen, and others petitioned the DC Circuit for review of that
final rule, but the parties have agreed to hold the litigation in
abeyance while FMCSA completes this rulemaking. The opposing views of
the motor carrier industry and various safety groups, repeatedly
expressed during this litigation, are opinions; no court has ruled on
the merits of an 11-hour driving limit or a 34-hour restart. Both of
those provisions, however, have governed motor carrier operations since
the start of 2004. The proper baseline against which to evaluate this
final rule is therefore the rule currently in effect. The Agency's
obligation under the Administrative Procedure Act is to explain
reasonably and persuasively why it has changed the rules in effect for
the last 7 years. FMCSA believes that this rule does precisely that.
Comments on One Size Fits All. Many commenters criticized the
proposed rule for using a ``one-size-fits-all'' approach to regulating
driver hours of service. In general, they said that the proposed rule
is more appropriate for over-the-road trucking than for other types of
operations. Commenters supported exemptions or separate rules for the
following types of drivers or carriers. In some cases, such exemptions
are already in place; others would be new:
Construction companies.
Transportation construction industry.
Short-haul operations.
Solid waste and recycling collection trucks.
[[Page 81165]]
Equipment dealers providing parts, repairs, and service of
planting and harvesting equipment.
Propane deliveries within a 100-air-mile radius.
Carriers hauling Department of Defense shipments of arms,
ammunition, explosives, and other sensitive or classified cargo.
Experienced drivers with few or no HOS violations.
Drivers of support vehicles for firefighting helicopters.
LTL drivers.
Tow truck drivers responding to police-generated calls.
``On-call'' individuals responding to no-heat, crashes,
and other situations that could potentially cause harm to person or
property.
Railroad employees for whom driving a CMV is incidental to
their main responsibilities.
The Association of General Contractors (AGC) of America and a
carrier wrote in support of the existing provision that allows
construction drivers to reset their on-duty clocks after an off-duty
period of at least 24 consecutive hours. However, AGC recommended that
the air-mile radius coverage be expanded from 50 to 100 miles and that
the time drivers are in line waiting to load materials or to dispense
materials not be included in the calculation of the driving window.
Agricultural Education Group defended the exemption for operators of
vehicles transporting agricultural commodities and farm supplies.
One carrier opposed all HOS exemptions or special provisions,
claiming that they are politically motivated and do not promote highway
safety. Another carrier objected to HOS rules being different for
property carriers and for passenger carriers. In addition, the carrier
argued in favor of having the same HOS rules for all drivers of
commercial vehicles, not just holders of CDLs.
FMCSA Response. As FMCSA stated in the NPRM, the HOS rules are not
one-size-fits-all. There are multiple exemptions and exceptions, some
statutory, some regulatory (many cited by the commenters themselves).
This final rule does not change existing regulatory exemptions or
exceptions, and it cannot change statutory exemptions. On the other
hand, the Agency's unfavorable experience with segment-specific HOS
proposals does not encourage further action along those lines. In the
2000 NPRM, the Agency proposed different rules for different
operational segments. That proposal was almost universally criticized.
It was considered too complicated and too difficult given the number of
carriers whose operations covered multiple segments and whose drivers
may shift from one segment to another from day-to-day.
N. Beyond the Scope
A number of commenters raised issues that were not addressed in the
NPRM. Commenters noted the lack of parking areas for trucks. They
complained about the practices of shippers and receivers that require
the drivers to wait for long hours to load or unload. They stated that
shippers press them to violate the rules to meet schedules that the
shippers impose. Commenters objected to EOBRs and anti-idling laws.
They also stated that other drivers cause most crashes, that traffic
laws discriminate against trucks, and that enforcement, not more
regulation, is the solution. Several commenters, including ATA, stated
that FMCSA should act on recommendations of the Medical Review Board
rather than revise the HOS rules. The Expedite Alliance of North
America, the National Association of Small Trucking Companies, and Air
& Expedited Motor Carrier Association jointly said that both the
current and proposed HOS rules lack any real effort to address and
monitor fatigue rather than to monitor and restrict hours of service
based upon on-duty and driving time. They stated that modern science
has developed a variety of cost-effective measures for measuring driver
alertness, biorhythms, and fatigue. They urged FMCSA to commit to a
``third millennium'' method for measuring actual fatigue.
FMCSA Response. These issues are beyond the scope of this
rulemaking and, in many cases, are beyond FMCSA's statutory authority.
V. Section-by-Section Analysis
In part 385, Appendix B (explanation of safety rating process) is
revised to update references to part 395. Revised references are added
for paragraphs in Sec. 395.3. References to Sec. 395.3(c)(1) and (2)
are deleted because a violation of the minimum restart period will
constitute, and be cited as, a violation of the 60- or 70-hour rule.
Providing separate violations for elements of the rule will allow FMCSA
to determine what parts of the rule have been violated. Under the
current method of citing violations, a driver who drives for 17 hours
straight cannot be distinguished from the driver who drives 11 hours,
takes a 9.5 hour break, then drives another 6 hours. Both are cited for
violating the 11-hour driving rule.
In part 386, Appendix B, (penalty schedule; violations and maximum
civil penalties) paragraph (a) is revised to add a new paragraph (6) to
state that any violation of the driving-time limit that is 3 or more
hours above the driving limit could be considered an egregious
violation that could trigger imposition of the maximum penalty.
Section 390.23(c) (relief from regulations) is revised to reference
Sec. 395.3 on the restart rather than to repeat the language on the
restart.
In Sec. 395.1, paragraph (b) (adverse driving conditions) is
revised to remove paragraphs (1)(i)-(iv) and to clarify that drivers
are allowed to drive no more than 2 hours above the driving limits set
in Sec. Sec. 395.3 and 395.5. In Sec. 395.1, paragraph (d)(2)
(oilfield operations) is revised to clarify the language on waiting
time and to state that waiting time is not included in the calculation
of the 14 consecutive-hour period.
In Sec. 395.1, paragraph (e) (short-haul operations), paragraph
(e)(1)(iv)(A) is revised to reference Sec. 395.3. Paragraph (e)(2) is
revised to clarify that it exempts drivers from Sec. 395.3(a)(2) (duty
time). This approach allows paragraph (e)(2) to focus on only those
rules that are different for drivers using the exemption rather than
repeating all of the provisions of Sec. 395.3.
Section 395.1(g) (sleeper berths) is revised to change the driving
time to a reference to Sec. 395.3 in Sec. 395.1 (g)(1)(i)(B). It is
also revised to add the provision (to paragraph (g)(1)(ii)(C)) that a
team driver may log as off duty up to 2 hours in the passenger seat of
a moving vehicle immediately before or after an 8-hour period in the
sleeper berth.
The previous language of Sec. 395.1(q) is removed and new text is
added as paragraph (q). Paragraph (q), a statutory exemption for
certain transporters of grapes, expired on September 30, 2009. See Sec.
4146 of the Safe, Accountable, Flexible, Efficient Transportation
Equity Act: A Legacy for Users, Pub. L. 109-59, 119 Stat. 1144, 1749,
August 10, 2005. New paragraph (q) sets forth rules specifically
applicable to drivers of CMVs transporting Division 1.1, 1.2 or 1.3
explosives. These drivers will be exempt from the requirement that the
half-hour break must be off duty. They will be allowed to log a half
hour or more of time spent attending the CMV, but performing no other
work, as their break. They will have to annotate their record of duty
status to indicate when the break was taken.
In Sec. 395.2, the definition of ``on-duty time'' is revised to
allow a team driver to log as off duty up to 2 hours spent in the
passenger seat either immediately before or after the 8-hour period in
the sleeper berth. In addition, FMCSA is
[[Page 81166]]
excluding from the definition of ``on duty,'' time spent resting in or
on a parked CMV except as provided in Sec. 397.5 ``attendance and
surveillance of motor vehicles'' by CMV drivers transporting Division
1.1, 1.2, and 1.3 explosives.
Section 395.3 is revised to place the individual requirements in
separate paragraphs so that FMCSA will be able to cite drivers for
violations of specific elements. Under the current rule, drivers are
cited only for violations of driving time, on-duty time, and the weekly
limits. The rule will make it possible to cite drivers for violations
of the daily off-duty break, the restart, the 2-night provision, and
the 168-hour provision as well as driving time, weekly hours, and on-
duty time. This approach will provide useful information about the
types of violations being committed. The revised section includes the
provisions that apply through June 30, 2013, and the provisions adopted
today, which will apply after that date.
It should be noted that, although Sec. 395.3 is being restructured
in the form proposed in the NPRM, the 11-hour driving limit in Sec.
395.3(a)(3) is not a newly adopted provision, but simply a ministerial
rearrangement of the 11-hour limit in the previous Sec. 395.3(a)(1).
VI. Required Analyses
A. Executive Order 12866 and Executive Order 13563
Under Executive Order (E.O.) 12866 (58 FR 51735, October 4, 1993)
as supplemented by E.O. 13563 (76 FR 3821, January 18, 2011), FMCSA
must determine whether a regulatory action is ``significant'' and,
therefore, subject to Office of Management and Budget (OMB) review and
the requirements of the E.O. The E.O. defines ``significant regulatory
action'' as one that is likely to result in a rule that may:
(1) Have an annual effect on the economy of $100 million or more or
adversely affect in a material way the economy, a sector of the
economy, productivity, competition, jobs, the environment, public
health or safety, or State, local, or tribal governments or
communities.
(2) Create a serious inconsistency or otherwise interfere with an
action taken or planned by another agency.
(3) Materially alter the budgetary impact of entitlements, grants,
user fees, or loan programs or the rights and obligations of recipients
thereof.
(4) Raise novel legal or policy issues arising out of legal
mandates, the President's priorities, or the principles set forth in
the E.O.
Under the E.O., agencies must estimate the costs and benefits of
potential rules; for rules that may be considered economically
significant ($100 million or more in costs and benefits), agencies must
also evaluate options.
FMCSA developed a Regulatory Impact Analysis (RIA) for the proposed
rule (available in the docket) and accepted comments on it. This
section first summarizes the comments and responds to them, then
presents the revised results of the RIA for the final rule.
Edgeworth Analysis
Comments and Responses to the Edgeworth Analysis. Most commenters
on the RIA were trade associations and large carriers. Nineteen
commenters cited or submitted the study conducted for ATA by Edgeworth
Economics. Besides that critique, the major issues raised were the
following:
A perceived failure to analyze supply chain impacts.
A failure to account for impacts on LTL networks.
The estimates of training costs for drivers and
inspectors.
The Edgeworth study made the following points, cited by commenters:
FMCSA's field study data overstate the use of long hours.
Industry data from large carriers put the use of the 11th hour at 10.7
to 10.8 percent, not 21 percent.
The RIA assumes that drivers in the field study who were
out of compliance would comply with the new rule.
The RIA overstates the number of drivers who maximize
hours. The RIA assumes that a driver who uses part of the 11th or 14th
hour uses all it. This overstates costs and benefits.
The change in methodology (no longer using the logistics
model) reduced the estimate of productivity losses.
The RIA assumes that each hour of driving lost can be
seamlessly shifted to another day or driver, rather than modeling the
impact of shifting hours as in previous RIAs.
The RIA assumes that drivers in the moderate and high
categories of work intensity never use the restart. The field study
indicated that 84 percent of drivers used the restart, 85 percent when
they had worked less than 65 hours in the previous week. The RIA
understates the impact of the restart change.
The RIA overstates fatigue by using data from FMCSA's 2006
Large Truck Crash Causation Study (LTCCS), which were collected prior
to the 2003 rule; the data should have been adjusted for fatigue-
reduction produced by the 2003 rule. The 13 percent fatigue figure was
for ``associated factor'' not for the critical event. FMCSA also did
not adjust for over-sampling of single-vehicle crashes. The RIA should
have used 7 percent as the central estimate of crashes associated with
fatigue.
The RIA assumes that the risk of a crash is the same
during a non-driving hour as during a driving hour and rounds up any
reductions in work time to the whole hour. These two errors inflate
benefits by $200 million.
The RIA uses old crash data, rather than new data, showing
34 percent fewer crashes. Using the older data thus overstates the
number of crashes, and therefore overstates benefits.
The RIA overstates net benefits by $700 million; the rule
would have a net cost of $320 million, excluding health benefits. If
the health benefits are included, the rule would still have a net cost
of $20 million.
FMCSA Response. Edgeworth, in criticizing FMCSA's use of the Field
Survey data, stated that ``It is reasonable to consider that carriers
targeted for review may use their drivers more intensely and may be
more frequently up against current driving limits, if not over those
limits.''
If a broad source of data that included information on weekly work,
daily work, and daily driving for the same carriers and drivers was
available, the Agency would have used it. The allegedly superior
sources pointed out by Edgeworth, however, are fragmentary and partial.
The field study, while not without its problems, covered a substantial
number of carriers of different sizes and types. It could be that this
analysis has overstated the frequency of the use of the 11th hour; if
so, that overstatement would affect both costs and benefits in roughly
equal measure, and should not change their relative relationship.
Hence, it would only mean that FMCSA is being conservative, i.e., that
the Agency is less likely to have understated the impacts on the
industry of the options that would have limited driving time.
Edgeworth also stated that FMCSA includes ``4.0 percent of tours
that exceeded the current legal limit of 11 hours. FMCSA assumes that
all of these trips would become compliant under the 10-hour restriction
in Option 2. FMCSA offers no explanation for its assumption that
drivers currently out of compliance with HOS rules would become
compliant under the new rule.''
As a preliminary matter, OMB requires that agencies estimate costs
and benefits at full compliance. FMCSA did, in fact, explicitly discuss
(in Section 1.3
[[Page 81167]]
of the RIA) why we assumed that the rule's limits would be observed by
drivers who might currently be out of compliance: again, to avoid the
appearance of understating the impacts of its rule by assuming that
drivers would not comply with it. Certainly, drivers who currently
exceed 11 hours would be unlikely to choose to drive less than 10 hours
under a rule that limited driving to 10 hours, so their existence
suggests a preference for long driving days; it would be unreasonable
to assume they did not exist. Even if they are not complying with the
existing driving limit, they could be influenced by it. A lower limit
might cause them to reduce their driving hours to an extent so as not
to be too far from the legal limit. To the extent that FMCSA overstated
the effects of some options by treating current violators of the 11-
hour limit as though they will comply with a tighter limit, the Agency
is overstating both costs and benefits of its options.
Edgeworth also asserted that FMCSA has overstated the impacts of
its options through its use of the Field Survey data, stating ``In its
calculations of both costs and benefits, FMCSA assumes that one full
hour of driving time would be affected under Option 2 for the share of
drivers who are recorded as having used the 11th hour in the field
survey. Similarly, FMCSA assumes that one full hour of work time would
be affected for the share of drivers that are recorded as having used
the 14th hour. Thus, FMCSA has overstated the number of affected hours
and, as a result, overstated both the costs and benefits of the
proposed rule.''
First, FMCSA explicitly does not assume that one full hour of work
time would always be affected for the share of drivers who are recorded
as having used the 14th hour. In the RIA for the NPRM, FMCSA stated
that only part of the 14th hour is affected by a 13-hour limit on on-
duty time: none of that hour for the moderate drivers, half of it for
the high intensity drivers, three quarters of it for the very high
intensity drivers, and all of it only for the extreme drivers. The
analysis then assumes that most of these drivers will be able to shift
some of the lost work time to another day, leading to an even lower
impact.
Second, though not exactly the same procedure is followed for the
11th hour (because breaks will not necessarily affect the maximum
possible hours of driving in a day), industry comments make clear that
for many drivers the reason that they have stopped short of the 11th
hour is that they do not schedule a trip for more than 10 hours and use
the 11th hour to deal with unplanned events (crashes, weather delays,
unexpected congestion). Thus, drivers have chosen to leave a cushion
between their driving and the limit (stopping at a convenient point to
avoid exceeding the limit). To the extent that this takes place, and
the drivers chose to use the same cushion under Option 2 (10 hours),
dropping the driving limit by 1 hour would affect driving on that day
by the full 1 hour. For example, drivers who would stop at 10.5 or
10.75 hours under an 11-hour limit could be expected to stop at 9.5 or
9.75 hours under a 10-hour limit to maintain the same cushion. Finally,
to the extent that FMCSA has overstated the effects of the options, the
effects would apply to both costs and benefits, that is, both would be
lower. The result would be that the actual impacts would be less costly
than estimated and that much easier for the industry and the economy to
absorb and adjust to, while not changing the relationship of benefits
to costs.
Comments and Responses on Impacts of the Proposed Rule on Carrier
Operations
Edgeworth asserted that FMCSA's cost analysis is highly
inconsistent with its previous RIAs: ``In the 2007 RIA * * * FMCSA
tested the current rules against an option which reduced the maximum
consecutive driving time to 10 hours and eliminated the restart
provision--i.e., a policy similar to FMCSA's Option 2 in the proposed
rule. FMCSA estimated that the restrictions would reduce industry
productivity by 7.1 percent.''
Edgeworth's assertion that reducing driving time to 10 hours and
eliminating the restart position is a policy similar to FMCSA's Option
2 in the proposed rule is incorrect. The option it refers to in the
2007 analysis eliminated the restart, reverting to the old limits of
60/7 or 70/8. Option 2 in the proposed rule allowed a 34-hour restart
every single week for the vast majority of drivers and every second
week for those driving maximum hours. Comparing the 2007 option with
the 2010 option is invalid because the options produce very different
effects on productivity. A better comparison is between the option that
did nothing but limit driving to 10 hours in the 2007 analysis and
FMCSA's current estimate of the impact of a 10-hour driving limit taken
by itself. The 2007 analysis estimated the incremental cost of limiting
driving hours to 10 at $686 million, or an increase of slightly over 2
percent.
Elimination of the 11th Hour of Driving in Option 2
In addition to Options 1 and 2, we also examined a more
restrictive variant of Option 1. That option limited driving to 10
hours in a tour of duty. This more restrictive option was found to
provide more benefits than Option 1, but at substantially higher
cost. Crash risks were originally found to be reduced by about 0.3
percent relative to Option 1. As discussed in Sections 5.4.3, 5.4.4,
6.4 and Appendix (V), this variant is now estimated to reduce LH
[long-haul] crashes by 0.43 percent. This reduction is estimated,
using the recent updates to the number of crashes, the damages
caused by each crash, and the VSL described above, to be worth $146
million per year.
The projected costs, however, are much higher. They were
originally estimated to be $586 million more per year than under
Option 1, which has been updated for inflation, industry growth, and
industry coverage to $686 million. This estimate was made by finding
the average reduction in driver productivity in shifting between a
case that assumed the characteristics of Option 1 and a variant that
capped driving hours at 10. The average change in productivity,
weighting by the fraction of all driving estimated to fall into each
operational case, was just over 2.0 percent. (See 2007 Interim Final
Rule RIA, pages 69-70, FMCSA-2004-19608-2529.)
The 2010 NPRM analysis presents, in Exhibit C-7, an estimated cost
of $680 million, which translates to an increase of slightly less than
2 percent. These values, while not precisely the same, are entirely
compatible and do not indicate any material inconsistencies between the
complex and detailed approach used in 2007 and the approach FMCSA is
currently using (which, as mentioned in Section 3.1 of the RIA, was
designed to be simpler and more transparent than the previous analysis,
and better able to focus on the particular changes made in this
rulemaking). And again, to the extent that there are any differences in
estimates of the magnitude of the effects on hours of driving and
working, they would affect both costs and benefits in largely equal
measure.
Edgeworth also claimed that FMCSA's current approach could
understate productivity impacts because it assumes that driving could
be seamlessly reassigned to other drivers, and that ``In the previous
RIA, FMCSA's carrier logistics model may have accounted for such issues
(we are unable to confirm this without access to the detailed workings
of the model). However, FMCSA's current methodology clearly does not.
For this reason, FMCSA's assumptions may underestimate the productivity
impacts of the proposed rule.''
This concern is unwarranted, as demonstrated by the fact that the
results generated by the current methodology closely track the results
obtained from the 2007 model for the economically significant provision
(i.e., the impacts of elimination of the 11th driving hour)
[[Page 81168]]
where a direct comparison of the analyses is possible.
Edgeworth then claimed that FMCSA's approach understates the impact
of the restart provisions because it assumes they will have no effect
on drivers averaging 60 hours per week or fewer. Edgeworth argued that
these drivers might occasionally exceed 70 hours and will be affected
at those times. Because the restart provisions actually allow a restart
every week, though, a driver who occasionally needed to work even as
much as 81 hours in a single 7-day period would be able to comply with
the rules (working 13.5 hours per day for 5 days, then taking a
restart, and working another 13.5 hour day, for a total of 81 hours
over that 7 day period). Only drivers who work intensely for 2 or more
weeks in a row will be affected. Thus, occasional intense but brief
periods of work would still not be affected by the rule. Furthermore,
some drivers who occasionally work intensely will have the capacity to
redistribute work from more intense weeks to weeks that do not come
close to the weekly limits. Edgeworth also pointed to data from the
2007 Field Survey showing that drivers frequently use the restart after
weeks in which they work only 65 hours, asserting that these drivers
(who fall into the less intense categories) would be affected by the
restart provisions. This assertion confused the use of the restart as a
bookkeeping convenience with the use of the restart for increasing
productivity. Drivers who do not reach their weekly limit do not need
the restart to maintain their productivity and will not lose
productivity if they cannot use the restart.
Comments and Responses on the Analysis of Fatigue-Reduction Benefits
Turning to the analysis of fatigue-reduction benefits, Edgeworth
asserted that FMCSA's use of the estimated percentage of crashes
related to fatigue overstates the potential to reduce crashes by
reducing fatigue. Edgeworth pointed out that fatigue is, in many cases,
only one of a number of associated crash factors, not the single cause
of a given crash, and that therefore eliminating fatigue in a crash
that had other risk-increasing factors would not be enough to prevent
the crash. FMCSA believes, however, that in the absence of truck driver
fatigue, the chances of avoiding any given crash (even crashes in which
the critical responsibility lies with the driver of the other vehicle)
would be much greater. Furthermore, given the difficulty of detecting
driver fatigue in the aftermath of a crash, even the careful estimates
from the Large Truck Crash Causation Study (LTCCS) could be
substantially understated. For these reasons, FMCSA chose to stay with
the general approach it used in previous rulemakings, changing only its
baseline estimate of the prevalence of fatigue on the basis of LTCCS
data.
Edgeworth offered no evidence for its assertion that an accurate
estimate of the incremental effects of fatigue could be derived by
dividing the number of fatigue-associated crashes by the total number
of associated factors.
The moderate benefits that were attributed in two of the options to
tightening the daily driving limit, using FMCSA's Trucks Involved in
Fatal Accidents (TIFA) analysis, accord well with, or are actually more
modest than, the benefits implied by the two most recent studies of the
decline of performance over long work days. Blanco and Jovanis (2011)
were both conducted under the current HOS rules. The results do not
support Edgeworth's contention that fatigue has fallen to the point
where it is greatly overstated by FMCSA's use of the TIFA data, nor
that reductions in fatigue effects need to be discounted before they
are applied to reductions in crashes.
Blanco's study provides clear evidence that there is a
statistically significant rise in the risks related to crashes as
driving hours increase. A strong trend is seen across all shifts. A
somewhat weaker trend, but one that is similar and still significant
using a one-tail test (which is the correct statistical approach to use
if there are very strong reasons to believe that long hours of driving
would not improve performance), is seen even for the smaller set of
data that go into the 11th hour.\11\ That latter trend shows that risk
in the 11th hour is about 36 percent higher than the risk in the first
hour (i.e., (0.1379 + 11*0.0052)/0.1379 + 1 * 0.0052) = 1.36). That is
actually a stronger effect than would be seen based on the baseline
time-on-task function used in the RIA, scaling the fatigue crashes to
13 percent (which is [(1 + 36.1 percent)/(1 + 7.4 percent)] = 1.27).
Given that both of these functions are uncertain because they are based
on statistical estimation, however, these values are entirely
consistent. The results are not, however conclusive on whether the 11th
hour is significantly different from the 10th, or on whether increases
in risk over the day are more attributable to long hours of driving or
long hours in the work shift. The Jovanis (2011) study shows risk
increases (not fatigue increases) for the 11th hour of driving in both
the TL and LTL segments that are clearly more substantial than the
increases estimated and used by FMCSA for the RIA, though it does
contain some results that are difficult to interpret.
---------------------------------------------------------------------------
\11\ Tests of statistical significance are used to determine
whether a parameter estimate could have taken a value at least as
high as it appears to be, simply due to random variability in the
data. A standard ``two tail'' test is used if the parameter could be
either positive or negative, and takes account of both ``tails'' or
extremes of the distribution of a random variable. A ``one-tail''
test is appropriate if there are strong reasons to think that the
true value of the parameter cannot have one particular sign--e.g.,
if the true value cannot be negative. In this case, because there
are good reasons to believe that, if time on task has any effect on
driving performance that effect is deleterious, a one-tail test is
appropriate for assessing whether the time-on-task effect found in
the Blanco study is significant.
---------------------------------------------------------------------------
Edgeworth claimed that the LTCCS overstates the prevalence of
fatigue-related crashes because it contains too many single-vehicle
crashes. In making this assertion they cite a previous submission to
the docket by Knipling. Knipling's submission contended that LTCCS has
an overrepresentation of single-vehicle crashes when compared to the
proportion of single-vehicle crashes estimated by the National Highway
Traffic Safety Administration's (NHTSA) General Estimates System (GES).
These comments err in one basic fact, according to Agency analysis of
the GES data. The Agency estimates that an average of roughly 20
percent of serious injury and fatal crashes are single-vehicle crashes
in the GES for the years in which LTCCS data were collected, not the 15
percent cited in the Knipling submission to the docket. The estimate of
the proportion of single-vehicle crashes in GES rises to 26-31 percent,
depending on the year chosen, if all crashes--including those that are
less severe--are included in the analysis. As Table 1 of the LTCCS
Summary tables posted on the Agency's web site shows, single-vehicle
crashes were 25 percent of all truck crashes sampled in LTCCS in the
raw data. Using the weighted data the percentage increases to 31
percent. Thus the LTCCS data are less biased with regard to sampling
single-vehicle truck crashes than the comments claim.
It is not clear whether GES or the LTCCS would have the more
accurate estimate of the true single-vehicle crash representation. GES
sampling methods were set up to get an accurate assessment of passenger
vehicle crashes, not large truck crashes. It could be that the LTCCS,
because it was focused exclusively on crashes involving large trucks,
derived a more representative distribution of large-truck-involved
crashes than that generated by the GES. In addition, LTCCS crash
investigators were fairly conservative in coding crash
[[Page 81169]]
factors--roughly 12 percent of the crashes in the data were coded with
unknown causes. It is reasonable to assume that some of these crashes
were fatigue-involved, especially since evidence of fatigue is often
difficult to find in the aftermath of a crash.
Finally, the Knipling submission went to great lengths to show the
effects that the overrepresentation of single-vehicle crashes would
have on the portion of crashes where asleep-at-the-wheel was coded as a
factor or critical reason. The Agency, however, did not use asleep-at-
the-wheel crashes in its analysis, but instead analyzed crashes where
the truck driver was coded as fatigued. This is an important
distinction because asleep-at-the-wheel overrepresentation in single-
vehicle crashes is significantly higher than fatigue
overrepresentation. As a result, overrepresentation of single-vehicle
crashes is a less significant problem when looking at fatigue
involvement than when one is looking at crashes where the driver
actually fell asleep. It is true that asleep-at-the-wheel crashes would
be a subset of fatigue-involved crashes, but many fatigue-involved
crashes are the result of impairments that fall short of actually
falling asleep. If one carries out Knipling's calculations showing the
effect of single-vehicle crash overrepresentation on asleep-at-the-
wheel representation for fatigue-involved crashes instead, the
differences are far smaller. Looking at the single-vehicle involvement
rate and multi-vehicle fatigue involvement rate for fatigue, and
correcting for the weighting issue using 20 percent single-vehicle
involvement from GES compared to 31 percent from LTCCS, a much smaller
overestimation is derived. At worst, the LTCCS overweighting of single-
vehicle crashes would result in an overestimate of fatigue involvement
in the neighborhood of 10-13 percent--i.e., at the worst, the Agency's
baseline estimate of 13 percent would be reduced to somewhere between
11 and 12 percent. However, given the variability inherent in any
statistical sample or estimate and the fact that LTCCS crash
investigators were conservative in coding crash factors, we feel that
the estimate from LTCCS is as accurate as any other estimate available,
and continue to use it as our baseline.
Edgeworth also claimed that the baseline estimate of 13 percent for
fatigue-related crashes is ``substantially higher than any measure
previously used by the agency in its analysis of HOS rules or any other
publicly-available measure.'' This claim is not correct. For example,
the RIA for the 2000 NPRM used a 15 percent estimate and the RIAs for
the 2003 and 2007 rules used 15 percent in the sensitivity analyses. In
fact, estimates of fatigue-associated crashes run as high as NTSB's 31
percent (though that figure is for truck crashes fatal to the driver)
and their observation that ``truck driver fatigue may be a contributing
factor in as many as 30 to 40 percent of all heavy truck accidents.''
FMCSA continues to use a range of baseline fatigue estimates, similar
to that used in the past, giving a higher weight to the 13 percent
estimate because of the care with which the LTCCS analysis was
conducted.
On the subject of cumulative fatigue, Edgeworth brought up FMCSA's
previous statements that the current rules provide enough time for
sleep to allow recovery from cumulative fatigue, and claims that the
introduction of a cumulative fatigue function represents a reversal.
However, the DC Circuit explicitly faulted FMCSA's previous analyses
for excluding the cumulative fatiguing effects of excessive work (as
opposed to insufficient time to sleep). FMCSA has since developed and
now applies a function relating work hours in the previous week to
fatigue levels in the current week, using the LTCCS. This function
shows that, for drivers pushing the outer limits of the on-duty hours
allowed under current rules, fatigue could still be a serious problem.
This problem might not show up in the nationwide data because of other
factors (such as the increased rest period between daily shifts) and
because maximum weekly hours are not the norm, but that does not mean
that safety could not be improved for those drivers who are truly
pushing the limits.
Edgeworth pointed out that, in applying the cumulative fatigue
function to the regulatory options, FMCSA used a step function that,
essentially, rounded reductions in weekly hours up to the nearest hour.
This is a fact that FMCSA itself noticed during the comment period and
pointed out to ATA/Edgeworth.\12\ That approach did overstate estimated
benefits somewhat, but this overstatement applied roughly equally to
all options. We corrected for this in the regulatory analysis of the
final rule, by using a much finer-grained analysis. The corrected
analysis shows estimated benefits that are lower by a few percentage
points, but does not significantly change the net benefits of Options
2, 3, and 4 relative to each other.
---------------------------------------------------------------------------
\12\ FMCSA sent this information to ATA in an email titled,
``Supplemental Information on HOS NPRM.'' FMCSA docketed the
contents of the attachments with the title ``Response to ATA Request
for Further Information on the Cumulative Fatigue Function Used in
the Regulatory Evaluation for the 2010 NPRM Proposing Revisions to
the Hours of Service Rules,'' January 28, 2011. It is in the docket
at FMCSA-2004-19608-6147.
---------------------------------------------------------------------------
Edgeworth also asserted that FMCSA has ignored the likely
interaction between different sources of fatigue (daily driving and
weekly work hours), and that reductions in one will be likely to
decrease the effectiveness of reductions in the other. This potential
issue, however, cuts both ways: for options aimed at cutting work hours
and driving hours for the hardest-working drivers, its total effects
could well be even greater than its effects on each factor. For
example, the limits on the use of the restart will have a
disproportionate impact on the 11th hour of driving (because the
hardest working drivers can be expected to drive the most hours), and
these drivers will often be pushing into the 11th hour in a state of
cumulative fatigue.
Edgeworth noted that, in calculating the impact of changes in
working hours, the benefits of redistributing hours to other drivers
should be based on the value of crash damages per hour on duty, not per
hour driving. We acknowledge that there is an inconsistency in this
calculation and have corrected it for the final rule. The change is
considerably smaller than estimated by Edgeworth. In the existing
analysis, the single crash reduction value used to calculate the
benefits of redistributing both driving and working hours was part-way
between the correct value for driving hours and the correct value for
working hours. Changing to a more specific value for each slightly
raises the value of reducing the daily driving hours per day while
slightly lowering the value of reducing weekly working hours.
Edgeworth then claimed that the reduction in crashes since the
crash cost analysis was conducted means that the benefits of reducing
crash rates by a given percent has declined. We used the most up-to-
date comprehensive assessment of crash costs available. The substantial
declines seen in recent years coincided with a sharp drop in the
economy, which had a substantial effect on the number of trucks on the
road at any time, the miles driven, and the loads moved; the Economic
Census Service Sector Survey indicates that there were about 100,000
fewer for-hire trucks on the road in 2009 than in 2007, an 8 percent
decline.\13\ ATA's complete truckload-sector mileage index indicates
that mileage fell roughly 19 percent from 2007 to 2009, using
annualized
[[Page 81170]]
numbers. Reduced trucking activity implies reduced costs for any rule
that imposes a limit on productivity; it would be invalid to take
account of only one side of the equation. Furthermore, the recent
recession affected not only truck traffic but also the volume of other
vehicles on the road--and with fewer vehicles with which to collide,
the crash rate per 100 million miles traveled fell as well. Compounding
these effects, if the economic recession caused drivers to work fewer
hours, the lower levels of effort by truck drivers could be expected to
cut their levels of fatigue at the same time they cut the economic cost
of any restrictions. While it would be possible to attempt to estimate
the extent to which all of these transient conditions reduced both the
benefits and the costs of a given rule, the conclusions would apply
only to recessionary periods, which (fortunately) are relatively rare.
---------------------------------------------------------------------------
\13\ http://www2.census.gov/services/sas/data/48/2009_NAICS48.pdf.
---------------------------------------------------------------------------
Comments and Responses on the Impact of the Proposed Rule on Driver
Health
On the subject of the estimated benefits of the proposed rule for
driver health, Edgeworth noted that previous RIAs concluded that
insufficient evidence existed to support a connection between reduction
of maximum work or driving time and health of drivers. While that
remains true of many of the health factors discussed in the 2005 rule
(exposure to diesel exhaust, noise, and vibration), in recent years the
evidence has grown that excessive work and insufficient sleep (which
tends to accompany excessive work) are damaging to health. These points
are detailed in Chapter 5 and in Appendix B to the RIA. More recent
data on driver sleep, collected since the 2003 rules have been in
effect, prompted Agency concerns about the baseline average sleep
levels experienced by drivers.
Edgeworth then questioned whether increased work is likely to lead
to reduced sleep, pointing to the fact that the drivers whose work and
sleep patterns were used as the basis for the estimates of the changes
in sleep per change in work hours were operating under somewhat
different rules. The relationship between additional time working and
the way that time cuts into the hours of sleep, though, is a general
relationship, and would not be expected to appear only under a
particular regulatory regime (especially if many of the drivers were
not even pressing hard against the limits in effect at the time).
Naturally, there will be some uncertainty in estimating exactly how
much average sleep will decline when average work increases, but the
risk of overstating the relationship is no greater than the risk of
understating it; we believe the Agency's estimate is reasonable.
Edgeworth also pointed to FMCSA's prior statement that ``[t]he
Agency has no basis for estimating the extent to which drivers who have
an extra hour a day or extra hours per week off duty will use that time
to exercise and sleep.'' That statement, however, is strictly true only
insofar as both exercise and sleep are considered together, because
FMCSA did not search for a relationship between work hours and exercise
hours.
The idea put forth by Edgeworth that changes in work hours do not
necessarily affect average sleep time is inconsistent with the
commonplace observation that workers sleep more on weekends than on
week nights as documented in the American Time Use Survey, National
Sleep Foundation surveys, and other research.
Finally, Edgeworth also stated that FMCSA should have included the
negative effects of excess sleep, but failed to recognize that these
negative effects were included as an offset to the benefits of the
rule. In both cases, FMCSA is commenting on the difficulty of
predicting changes in sleep exactly, but nonetheless uses a consistent
methodology in applying the changes in work hours to its health
benefits method.
Edgeworth also disputed FMCSA's use of Ferrie's findings of a U-
shaped relationship between sleep and mortality, offering several
arguments: that the study populations were different, that FMCSA
imputed too great a level of precision to the study, and that the very
small extra hours of sleep for some driver categories are too small to
make any real difference. Though one can raise questions about any
particular study population, Ferrie's study is only one of many that
find a U-shaped relationship--some stronger, some weaker--between sleep
above and below an ideal point (e.g., Grandner & Patel (2009),
Cappuccio (2010)). It is true that for some of the driver categories
the changes in average sleep are very small--but those are also the
categories for which FMCSA finds, and includes, a small negative
benefit of restricting hours; leaving them out of the analysis would
change the results very little. For the drivers in the more extreme
categories, the changes in average sleep are considerably larger. In
the real world not every driver will be exactly at the baseline sleep
level and will not have exactly the average change in sleep. Given the
wide variability in sleep across individuals, many drivers in a
category that has (for example) 6.2 hours of sleep on average will
actually be sleeping well below 6 hours, and for them the effects of
the rule may well be substantial. Although Cappuccio (one of the
authors of the study used by FMCSA for its quantitative analysis)
raised questions about the way FMCSA applied the Ferrie study (of which
he is a co-author) for its quantitative analysis, the lead author of
the study, Jane Ferrie, is on record as approving of FMCSA's use, and
even considered the Agency's approach conservative in terms of the
benefits that could be derived from improved sleep. (See the detailed
discussion of Cappuccio's criticism and Ferrie's response below under
Comments on Health Benefits.)
Other Comments on the Cost/Benefit Analysis
Comments on Impacts to Shippers, Brokers, or Consumers. Commenters,
including ATA, National Association of Manufacturers, the Chamber of
Commerce, shipper and trucking associations, and major carriers stated
that FMCSA had not addressed the costs of the rule to shippers,
brokers, or consumers. They stated that the supply chain would have to
be re-engineered. A distributor association estimated costs for
changing routes of one carrier at $20 million and cited Kraft Foods as
saying that the number of routes that could be covered in one day would
drop from 75 percent to 60 percent.
FMCSA Response. The costs of the rule are measured by the cost to
the carriers (which, in the case of private carriers, includes shippers
because they are the same in that case). We assume that these costs are
then shifted, largely, to the direct and indirect users of shipping
services: shippers, receivers, and ultimately consumers. We have
included costs for reprogramming routes, based on the clearest
quantitative estimates provided in past comments in listening sessions;
to the extent that the shippers do the work of altering the routes in
light of the rule changes, that should reduce the costs to carriers. We
have addressed costs to consumers in the RIA. Our cost estimates are
for carriers providing the same, or essentially the same, service using
more drivers and trucks each with slightly lower average productivity.
The costs of changing routes will be mitigated by the time allowed for
compliance. In a dynamic economy frequent changes in shipping and
routing are necessary; any changes necessitated by the new rules can be
phased in whenever they are most convenient. FMCSA believes that the
cost factors provided by the commenters are not adequately justified,
and they
[[Page 81171]]
are exaggerated compared to the averages.
Comments on Impacts on LTL Carriers. ATA stated that the analysis
did not account for impacts on LTL carriers; it estimated the
productivity losses at 5 to 9 percent. Con-way said the rule would
require network changes.
FMCSA Response. The analysis of the impact of the different options
did consider impacts on LTL carriers, as they were included in both the
population of drivers and power units, and in a survey that was the
basis for the estimates of the distribution of work effort. Though
there might be some LTL routes that could lose this much productivity
if driving were restricted to 10 hours per day, it is highly unlikely
that the industry-wide average impact would be that high. Only a driver
who drove 11 hours every day, and who was required to cut back to 10
hours, would lose as much as 9 percent of baseline productivity, and
ATA is on record stating that even FMCSA's estimate that the 11th hour
is used on only about a fifth of trips is substantially overstated. Any
segment that currently requires 10 hours or less, or more than 11
hours, would be unaffected by a change in the daily driving limit, and
any driver currently taking a full weekend off would be unaffected by
the changes in the restart provisions. It is true, as Con-way stated,
that some changes in networks might be necessary, and a cost has been
assigned to those changes. It should be noted, however, that Con-way
stated that its drivers averaged less than 8 hours of driving a day. In
any case, the final rule leaves daily driving hours unchanged.
Comments on Reduction in Productivity. Schneider stated that the
rule would reduce its productivity by 4.72 percent. Drivers would get
home 25 percent less; the average run would drop from 501.7 miles to
478 miles, which would translate to $3,000 a year decrease in driver
pay to offset the loss in productivity. Other carriers stated that
those carriers that maximize hours would have an 8 to 10 percent
reduction in productivity.
FMCSA Response. FMCSA's estimate of the nationwide productivity
impacts is close to an average of 1.2 percent; the Agency assumes there
is substantial variability across operations and firms. The estimated
reduction in productivity for the carriers allowing or requiring
drivers to work the longest hours is quite consistent with our
estimates--those working about 80 hours must cut back to something
below 70, which is a reduction of more than 12 percent.
Comments on Costs to Short Haul. Three shipper associations stated
that FMCSA had ignored the costs to short-haul operations and that its
statement that they would not be affected was without foundation,
particularly as the provisions limited work time other than driving
time.
FMCSA Response. The RIA for the 2003 HOS rules did calculate costs
and benefits for short-haul and local drivers, and the analysis for the
2005 HOS rules also looked at how longer driving windows could reduce
impacts on that segment. For the final rule, however, FMCSA considers
any potential impacts to be small. This conclusion is based largely on
the nature of the HOS rule changes considered in this rulemaking,
compared to the work patterns identified in previous rulemakings. The
2003 rules increased the daily driving hours from 10 to 11, increased
the required off-duty period from 8 to 10 hours, allowed restarting the
multi-day count of on-duty hours after a 34-hour period off-duty, and
limited driving to a 14-hour window after coming on duty. FMCSA's
review of work by short-haul and local drivers, which included
quantitative assessments of two driver surveys and discussions with
industry sources, concluded that most of the changes in the rules would
have essentially no effect on short-haul and local drivers. The ability
to work the maximum numbers of hours per week (through the restart) was
also considered unlikely to provide benefits to the short-haul and
local drivers, because they were judged to work much more moderate and
regular hours than longer-haul drivers, often with full weekends off.
The only provision of the 2003 rule found to be likely to impose a
significant cost on short-haul and local drivers was the fixed 14-hour
limit on the driving window. FMCSA's data on the variability of daily
work by short-haul and local drivers, however, found that work in
excess of 14 hours was quite rare, even when drivers were permitted to
work beyond a 14-hour window. Furthermore, the provisions that allow
short-haul and local drivers to exceed the 14-hour driving window once
or twice a week should provide enough flexibility to prevent any
significant impact on the vast majority of these drivers. Finally, the
final rule has dropped the 13-hour limit on daily on-duty hours,
further reducing the chances that a short-haul or local driver's
operations will be constrained.
Comments on Costs of Training Enforcement Personnel. CVSA and the
Oregon Department of Transportation stated that the RIA failed to take
into account the cost of training 14,000 enforcement personnel, which
they estimated to be between $2,682,680 (8-hour course) and $4,924,020
(12-hour course), not including travel and per diem. According to the
commenters, these costs will be an additional burden on State
resources. Carriers, ATA, and other trucking associations also stated
that the 2-hour estimate for training was too low.
FMCSA Response. The proposed rule has been simplified, and the 11-
hour driving limit from the previous rule retained, which should
mitigate the length of the training needed to familiarize inspectors
and drivers with the new requirements. The Agency considered including
these costs, but found that they did not change the total cost of the
rule, which is rounded to the nearest $10 million. FMCSA also notes
that the lead time provided before the rule takes effect will allow
training to be incorporated into other on-going activities. For
industry costs, we used the clearest quantitative estimate available
from comments at listening sessions.
Comments on Costs and Driver Additions. Advocates et al. stated
that fatigue-related truck crashes cost between $5.5 and $13 billion
annually. They also posited that the current HOS rule eliminated the
need to hire 60,000 drivers; the proposed rule would add 44,000 driver
jobs to the economy.
FMCSA Response. This estimate is broadly consistent with FMCSA's
estimates for fatigue-related crashes, though higher than its estimates
for long-haul crashes alone. FMCSA's estimate of the number of new
drivers is lower, because it anticipates a small shift from truck to
rail, and leaves the daily driving limit at 11 hours.
Comments on Cost Disaggregation. Another advocacy group stated that
FMCSA should have disaggregated the costs for each key provision, not
just driving time. The group also commented that FMCSA should estimate
the effects of changes in congestion.
FMCSA Response. FMCSA analyzed the costs and benefits of the
provisions individually, as shown in RIA Appendix C, and summarized in
Table 3 of this preamble. FMCSA does not expect any significant net
effects on congestion. The requirement for two consecutive nighttime
periods off to qualify for a restart, which might be anticipated to
shift traffic into more crowded times of day, will affect only one day
per week for the fraction of drivers who routinely work all night and
routinely work very long hours per week. Any effect on congestion due
to these small shifts will be counterbalanced by the small
[[Page 81172]]
anticipated shift from truck to rail due to the rule's effect on
productivity.
Comments on Safety Benefits. Two trade associations and the
Missouri Department of Transportation stated that the Agency has no
basis for projecting safety benefits. ATA stated that there were no
safety benefits. OOIDA stated that the analysis was flawed because it
is based on data collected under the pre-2003 rule.
FMCSA Response. FMCSA has shown that reducing working, and building
in breaks in long days, will provide more time to rest and reduce the
buildup of fatigue. Because fatigue is known to be an important cause
of heavy-vehicle crashes, a regulation that reduces fatigue can be
expected to reduce crash risks. Some of the analysis did use data from
before 2003 along with more recent data, because the most recent data
are not yet extensive enough to form the basis of an entirely new set
of analyses. FMCSA has no reason to believe that basic relationships
between work and sleep, and between excessive work and fatigue, have
changed enough since 2003 to invalidate its analysis using data prior
to the current rule change. There is no reason why the use of pre-2003
data to examine time-on-task effects would produce spurious results.
Furthermore, the time-on-task function used in the current RIA was
incorporated into the RIAs accompanying the 2005 and 2008 rules and was
used in those rulemaking actions to evaluate the differences in safety
impacts between the various options considered. The use of that
function in previous rulemakings was tacitly accepted by all
commenters.
On March 17, 2008, ATA submitted comments on FMCSA's December 7,
2007, Interim Final Rule's RIA.\14\ ATA commented ``that FMCSA had
taken diligent and extraordinary steps to assure the comprehensiveness
of the analysis and its parts. This included adequately explaining two
critical elements of the model in the RIA accompanying the 2005 rule--
the analysis of time-on-task and the analysis of whether the 34-hour
restart affects cumulative fatigue.'' FMCSA's 2007 RIA used the same
TIFA function to estimate benefits as the RIA for this final rule.
---------------------------------------------------------------------------
\14\ See document item FMCSA-2004-19608-3437 for ATA's comment
on pages 13-14, and document item FMCSA-2004-19608-2924 for NERA's
paragraph on page 2.
---------------------------------------------------------------------------
ATA noted in its 2008 comments that ``The regression analysis
(model) used by FMCSA to measure and project the effect on the risk of
crashes associated with driver fatigue of driver's time on task (TOT)
is reasonable and appropriate.'' In addition, a statistician hired by
ATA as a consultant to examine the Agency's TIFA-based time on task
function submitted the following comment: ``Based on my review of the
2007 RIA and related docket materials as well as the considerations set
forth in my September 2007 Declaration, it is my opinion that the form
and implementation of FMCSA's revised logistic regression model are
reasonable in the circumstances for the purpose for which FMCSA used
this calculation in the 2007 RIA'' (Marais). In light of the fact that
the function has been used twice in the past, and that even ATA and its
consultants have stated that use of this function is appropriate, it
seems reasonable for the Agency to have used it again for the December
2010 NPRM and this final rule to estimate safety benefits associated
with reducing allowed daily driving.
More recent research has corroborated time-on-task and cumulative
fatigue effects for driving occupations. Two new studies sponsored by
the Agency and conducted with post-2003 data have found evidence of
increasing crash risk or SCEs as driving time increases through the day
(Blanco and Jovanis (2011)). In addition, other studies involving
transit bus operators have shown evidence that longer weekly work hours
are associated with an increase in crash risk for drivers working 45
hours per week or more (Sando (2010a and 2010b)). While these drivers
operate in a different setting than over-the-road truck drivers, the
fact remains that the increase in risk begins appearing at weekly work-
effort levels well within the current and previous HOS rules. Taken
together, these studies bolster the Agency's claim that limiting work
would reduce crashes related to time on task and cumulative fatigue.
Comments on Health Benefits
Although drivers who work fewer hours than the maximum allowed by
the rule will experience only limited health benefits, those who
currently work the longest schedules must curtail their weekly work
hours--in some cases significantly--and will, therefore have additional
time off duty to sleep or exercise, both of which are associated with
improved health, lower medical costs and, ultimately, with longer life
expectancy.
Comments on the Use of the Ferrie Study. ATA submitted an opinion
from Francesco Cappuccio that disputed the use of studies cited by
FMCSA in the 2010 NPRM to estimate changes in mortality based on sleep.
His points were the following:
The studies used are based on epidemiological data, which
do not imply a causal relationship.
Sleep duration is self-reported and does not differentiate
between naps and longer daily sleep. The studies also do not exclude
people with sleep disorders.
The description of a so-called U-shaped relationship
between duration of sleep and risk of death is currently insufficient
to justify an interpretation of a `graded and continuous' relationship
between exposure (sleep duration) and outcome (death). There could be
threshold effects.
The mapping of sleep time is not supported by data.
The RIA did not consider the impact of more than 8 hours
of sleep.
Sleep time between 6 and 8 hours is not associated with
harm. Most drivers appear to fall into this range.
There is no evidence that increasing sleep by 5.5 minutes
per day would produce health benefits.
FMCSA assumes that, if given extra time off, drivers would
use it to sleep. This is not supported by data.
Cappuccio concluded:
In these studies reduced weekly work hours led to an increase in
sleep time because other approaches were taken at the same time as
the reduction in work hours to encourage and facilitate the workers
to sleep longer and to recover better from previous shifts. These
measures include important components based on well-established
principles of sleep medicine and circadian biology: Limit
consecutive night shifts to reduce the build-up of chronic partial
sleep deprivation due to the limited sleep between night shifts;
limit shift duration to minimize acute sleep deprivation; design the
sequence of shifts to abolish `slam shifts'; instruct workers and
facilitate naps; and also reduce the proportion of long work weeks.
These approaches are effective on performance and reduce errors. No
evidence of efficacy on health outcomes is yet available.
Jane Ferrie, the lead author of the study in question on which
Cappuccio collaborated, submitted a comment to the docket. She noted
that the RIA acknowledged that epidemiological data do not prove
causation. She cited a number of studies on self-reported sleep
indicating that such reports overstate sleep. Ferrie cited other
studies showing that self-reported sleep is strongly associated with
health outcomes. The projections in the RIA were very close to the
results derived from the data analysis of the Whitehall study. She
described the mortality ratios used in Exhibit 3 as robust and added
that the quadratic regression analysis used in the RIA is a relatively
good approximation within the range of 5-9 hours sleep duration.
Mortality rates in Exhibit 5-3 outside these ranges would be less
[[Page 81173]]
stable, but she noted that the Agency did not appear to have used them
in the cost-benefit analyses. She stated that the problem of covariates
appears to be quite minor. She also stated that the inferences in the
RIA on increased mortality seem to be in rough agreement with estimates
from her study. She noted that the RIA acknowledged that small changes
in the amount of sleep make little difference for individuals, but
``small changes at the population level, particularly in large
populations, can have significant effects.''
On the unquantified health benefits, Ferrie cited an increasing
body of research documenting the effects of working more than 55 hours
a week on heart disease, cognitive function, depression, and sleep
disturbances. She stated that repeated exposure to long working hours
has been shown to be associated with a 3-fold increased likelihood of
shortened sleep, a nearly 7-fold increased likelihood of difficulty
falling asleep, and a 2-fold increased likelihood of early morning
waking. She noted that these effects are not related to shift work.
Ferrie concluded that the methods of analysis FMCSA used appear to be
robust and that the RIA takes a cautious approach to interpreting the
health benefits.
FMCSA Response. In every instance, Cappuccio appears to have drawn
the narrowest possible conclusion from the available data, both in the
study that he co-authored and in the RIA, with the result that he finds
the connection between mortality and sleep duration tenuous or
contingent on further research and better data. According to Cappuccio,
some sleep scientists suggest that there may be an alternative
``threshold'' hypothesis for the relationship between sleep and
mortality. According to this hypothesis, individuals getting at least
as much sleep at some threshold level (e.g., 5 hours a night) would
gain nothing from small changes in sleep. Cappuccio, however, is on
record as stating that research shows that sleeping less than 7 hours a
night is likely to lead to greater mortality. In his comments (FMCSA-
2004-21675), Cappuccio mentioned his study Cappuccio (2010), which is
docket item FMCSA-2004-19608-4041. That report includes the sentences,
``Our study shows an unambiguous and consistent pattern of increased
risk of dying on either end of the distribution of sleep duration.
Pooled analyses indicate that short sleepers (commonly <7 h per night,
often <5 h per night) have a 12% greater risk.'') Thus, granting for
the sake of argument that there may be a threshold, even Cappuccio
likely would place it above the levels at which we are estimating
benefits. Ferrie, on the other hand, was more willing to trust the
available research, and to draw real-world conclusions from it. She
found FMCSA's use of her own research to be cautious and had no
objection to the use of those results as a partial rationale for HOS
policy. On the issue of fitting a continuous curve through data
collected on an ordinal scale, her comments supported the Agency. As
shown above, Ferrie thinks: ``Both the estimated increases in sleep
duration and decreases in mortality that result from the RIA are very
small, a point acknowledged by the FMCSA authors; the curvature of the
relationship `means that changing average sleep makes very little
difference for individuals.' However, small changes at the population
level, particularly in large populations, can have significant
effects.'' These comments show that the Agency's inferences regarding
increases in sleep and mortality reductions were reasonable. In
addition, both Ferrie and Cappuccio, along with other researchers on
this topic, have referred to a U-shaped curve rather than a step
function when discussing the relationship between sleep and mortality.
A curve generally connotes a continuous function in the scientific
literature, therefore references to a curve in the literature imply a
continuous relationship rather than a threshold or step function. While
FMCSA recognizes the need for improved data and is sponsoring a wide
range of research projects on sleep and fatigue, we are not prepared to
repudiate reasonable inferences from work already available because
more perfect work might someday be completed. We agree with Ferrie's
comments.
FMCSA is, in fact, implementing three of Cappuccio's suggestions in
this final rule. This final rule is: (1) Regulating time to abolish
``slam shifts,'' which are shift schedules that cause sudden changes in
the sleep/wake cycles; (2) Facilitating naps by providing a 30-minute
break; and (3) Reducing the proportion of long work weeks.
Other Comments on Health Benefits. An advocacy group noted that
there are underlying medical conditions that lead to lower sleep, such
as sleep apnea. A shipper association and a company stated that health
benefits are inflated by the change in the on-duty definition.
FMCSA Response. FMCSA recognizes that sleep conditions can reduce
sleep, but many of these conditions are associated with obesity, which
is linked to long work hours and a sedentary lifestyle. The direction
of causality can be difficult to determine, but one likely sequence is
that long work hours reduce sleep, which causes biochemical changes
that facilitate obesity, which is associated with high blood pressure
and diabetes, all of which are associated with an increased incidence
of sleep apnea.
The economic analysis did not look at the changes in the on-duty
definition or use it to change estimates of sleep time; the revised
definition is not expected to alter sleep time. The revision allowing 2
hours in the passenger seat to be logged as off-duty time mainly
affects team drivers, whose sleep is poor in any case according to
those drivers. Local drivers may ``rest'' in the truck if they are off
duty, but that rest will not necessarily include sleep, particularly as
local drivers usually work during daylight hours when sleep is
difficult even when someone is tired.
Other Comments on Benefits. A trucking association stated that
FMCSA should demonstrate that the safety benefit of the 2-night
requirement for the restart provision outweighs the cost of increased
congestion. An advocacy group stated that the RIA should analyze the
costs and benefits of the 16-hour provision and the 30-minute break. It
stated that FMCSA should monetize the health impacts beyond mortality.
It noted that besides leading to premature death, the chronic diseases
associated with lack of sleep impair both quality of life and
productivity for a long period. The direct and indirect costs
associated with these conditions are high.
FMCSA Response. As discussed earlier in this preamble, it is not
clear why commenters believed that the two-night requirement will lead
to increased congestion. They seem to assume that nighttime deliveries
will end, but they will in fact continue 5 nights a week for the
hardest working drivers and 6 or 7 nights a week for drivers who do not
need the restart. The final RIA does monetize the costs and benefits of
the break; the 16-hour provision has been dropped.
As explained in the RIA, it is difficult to monetize the costs of
the chronic health impacts because to do so, FMCSA would need data that
linked these conditions to specific amounts of sleep. There are, for
example, data that indicate the increase in mortality associated with
increases in body mass index (BMI), but these vary considerably by sex
and race. To begin to monetize those costs we would need data that link
specific levels of sleep to BMI and then data that linked the BMI to
incidence of diseases.
Comments on Fatigue Research. Thirteen commenters responded to the
[[Page 81174]]
WSU study on night drivers. ATA, OOIDA, CVSA, CHP, a State trucking
association, and several carriers stated that the number of subjects
was too small and the lab setting too artificial. Two drivers objected
to using young healthy subjects instead of trained drivers. Another
driver stated that the study did not consider drivers whose natural
rhythms are suited for working at night. Advocates stated that previous
research supported the findings of the WSU study. JB Hunt stated that
it surveyed 249 drivers, 82 percent of whom regularly drove at night;
79 percent of these drivers said they did not change their sleep
schedules when at home, which is contrary to the WSU assumption. JB
Hunt also stated that anyone who gets 10 hours of rest a day should not
develop a sleep debt.
FMCSA Response. FMCSA addressed most of these comments above, in
Section IV. ``Discussion of All Comments'' G. ``Restart,'' under the 2-
night requirement heading. As for the assertion that 10 hours of rest a
day is sufficient to eliminate sleep debt, the commenter is assuming
that a driver with 10 hours off will use 7 to 8 hours of that time to
sleep. Research has shown that night drivers who are trying to sleep
during the day generally get less than 6 hours of poor quality sleep
even when they have more than 10 hours off.
Comments on the Impact of Long Hours. On the issue of long hours,
Ferrie noted that a recent review concluded that work in excess of 8
hours carries an increasing risk of crashes, with the risk in the 12th
hour double that of the 8th. Sando reported that his study showed an
increased risk of collisions as hours worked increased.
NIOSH cited a number of studies that indicate that sleep
deprivation produces performance deficits, including an inability to
assess risk and an increase in risk taking. It also cited studies on
fatigue and CMV crashes and sleep apnea. Advocates et al. stated that
research indicates that performance degrades when drivers have less
than 7 to 8 hours of sleep and that most drivers get less than 6 hours
of sleep on work days. They also cited a number of studies that
indicate people need 7 to 9 hours of sleep. They countered industry
arguments that the rule was based on pre-2003 data by noting that the
NIOSH study of drivers covered 2004-2006. They stated that the findings
of the 2005 Fatigue Management Survey on sleepy drivers indicate that
this problem is more common for CMV drivers than for other drivers.
An association stated that fatigue literature does not address the
relative risk of the 11th hour. The Missouri Department of
Transportation cited the LTCCS as indicating that fatigue was the 10th
highest associated factor.
FMCSA Response. FMCSA agrees with the commenters that the great
majority of research associates long hours of work with fatigue and
increased crash risk. FMCSA also agrees that fatigue literature does
not directly address the relative risk of the 11th hour of driving. The
new VTTI study indicates that it is difficult to isolate the relative
risk of any particular hour of driving because driving hours can occur
at differing times during the work day. For example, the 11th hour
cannot occur sooner than 11 hours into the work day, but it can occur
anytime from 11 to 14 hours into the work day. The fifth hour of
driving can occur anytime from 5 to 14 hours into the workday. This
affects the relative risk of any particular hour of driving. As for the
LTCCS, it may have found that fatigue was the 10th highest factor, but
it still was associated with 13 percent of crashes.
Comments on Health Research. Relatively few commenters discussed
the health research reported in the NPRM and RIA. ATA and the Retail
Industry Leaders Association (RILA) stated that FMCSA has argued in
past HOS rulemakings that long hours do not affect health. RILA further
stated that the 2000 Balkin study on the relation of work time to sleep
time was not valid because the data were collected under the previous
HOS rule. It also questioned the assumption that a reduction in driving
time would lead to more sleep and exercise. Another State trucking
association and a carrier argued that FMCSA had not proven that changes
to the rule would have measurable positive impact on driver health. The
Minnesota Trucking Association stated that the studies did not answer
the question of whether long hours, shift work, or short sleep lead to
obesity and diabetes.
NIOSH submitted a number of studies that address health issues.
NIOSH cited studies linking shift work to smoking and obesity, noting
that research has found that short and poor quality sleep periods alter
hormone levels and metabolic function and lead to insulin resistance.
NIOSH cited research linking shift work to a higher risk of
cardiovascular diseases, including studies of drivers. It noted that a
study of unionized U.S. drivers found an elevated rate of mortality
from ischemic heart disease. NIOSH stated that the International Agency
for Research on Cancer has designated shift work with circadian
disruption as a probable carcinogen. It also reported on studies
linking long hours to depression and finding that working less than 12
hours a day and 58 hours a week reduced depression and fatigue. It
cited a 2010 study of truck drivers associating disrupted sleep
patterns with increased obesity and several chronic diseases. Studies
of verifiable sleep of truck drivers found daily averages well below 7
to 8 hours (3.8 to 5.2 hours).
Finally, Schneider National stated that FMCSA should address sleep
apnea among drivers, which it said is a more important cause of fatigue
than HOS. It also questioned the current rule allowing chiropractors to
serve as medical examiners. A safety group stated that FMCSA should
analyze the impact of diesel fumes.
FMCSA Response. As FMCSA explained in the NPRM, the body of
research that finds a connection between long hours of work and worker
health has grown substantially in the past 6 years. Most of the health
issues that FMCSA reviewed for the 2005 rule--exposure to diesel fumes,
noise, and vibration--were not and still are not scientifically
associated with long hours. The findings on noise and vibration
indicated that the levels to which drivers are exposed were not great
enough to cause health effects. With diesel exposure, drivers who are
parked with trucks idling may be exposed to higher levels than when
they are driving. Altering work hours would not necessarily reduce
exposures.
These issues are not the basis of the health impacts discussed in
the 2010 NPRM. As the studies submitted by NIOSH and others cited in
the NPRM and RIA have reported, long hours of work, particularly work
that is primarily sedentary, are associated with low sleep, obesity,
and cardiovascular disease. With many factors linked, it is not
possible to define a simple pathway for effects. There is, however, a
substantial body of research that has identified the chemical changes
caused by lack of sleep that can increase the likelihood of obesity and
diabetes and increase blood pressure. CMV drivers have a markedly
higher rate of obesity than adult male workers as a whole and have been
shown to have an elevated risk of dying of some cardiovascular
diseases. Interestingly, the commenters did not attempt to deny that
drivers have a higher incidence of chronic health conditions, each of
which is linked to higher mortality rates and higher on-going medical
costs. As mentioned above, this rule is unlikely to improve the health
of drivers who work moderate schedules. On the other hand, those
currently working the longest schedules will be required to reduce
[[Page 81175]]
their work hours, which is likely to increase their opportunity for
sleep and/or exercise, both of which are conducive to better health and
lower medical costs.
Final Rule Regulatory Impact Analysis
For the analysis of the final rule, FMCSA considered and assessed
the consequences of four regulatory options. (A copy of the complete
RIA is available in the docket.) Option 1 is the no-action alternative,
which would retain the provisions of the current HOS rule. All costs
are relative to Option 1. Options 2 through 4 require at least one
break during the duty day (none is currently required), and limit the
use of the 34-hour restart provision to once every 168 hours with at
least 2 nights off duty. Options 2 through 4 differ only in driving
time allowed between 10-hour breaks. Option 2 limits allowable daily
driving to 10 hours, the driving limit that existed prior to the 2003
rule. Option 3 retains the 11 hours of driving allowed under the
current rule. Option 4 allows only 9 hours of driving, or 1 hour less
than Option 2. This RIA compares the costs and benefits (in 2008
dollars) of Options 2 through 4 relative to the current rule (i.e.,
Option 1) and assumes that there is full compliance with each of the
options.
Compliance with HOS rules was assumed to be 100 percent for both
the baseline and options; no attempt was made to estimate real-world
compliance rates or to adjust costs and benefits for non-compliance.
This assumption was made to avoid understating the true costs of the
rule. To the extent that compliance rates fall short of 100 percent,
both costs and benefits would be lower. This approach allows for
analyses of supplementary rules aimed at improving compliance, which
would presumably move both costs and benefits closer to the levels
estimated in this analysis. These incremental changes in costs and
benefits would not duplicate the costs and benefits estimated for this
rule; rather they would indicate the extent to which the supplementary
rules ensured that the rule's costs and benefits were realized.
To calculate the impact of the changes to the HOS rule, it is
necessary to develop a profile of the motor carrier industry and
estimate the degree to which drivers in various segments work up to or
close to the limits of the current rule. Drivers whose preferences or
work demands lead them to schedules well within the current limits for
reasons unrelated to those limits will not be affected by the rule
changes.
The analysis concentrated on inter-city long-haul or regional, as
opposed to local, trucking operations. In general, short-haul trucking
work has far more in common with other occupations than it does with
regional or long-haul trucking. These local, short-haul trucking
operations are generally 5-day-a-week jobs, and much of the time on
duty is given to tasks other than driving. Typical work days are 8 to
10 hours or so and typical weeks are 40 to 55 hours. Many of these
drivers receive overtime pay past 8 hours in a day. Most of the work is
regular in character; drivers go to basically the same places and do
the same things every day. The rule is expected to have little effect
on such operations.
Both for simplicity of presentation and because of the nature of
the available data, the analysis used 100 miles as the point of
demarcation between local and over-the-road (OTR) service. Much of the
information on working and driving hours is drawn from FMCSA's 2007
Field Survey.\15\ Companies and drivers were identified as operating
within or beyond a 100-mile radius. The Economic Census, which provided
data on revenue, defines a long-distance firm as one carrying goods
between metropolitan areas; this is roughly compatible with a 100-mile
radius for the distinction between local and OTR service. One hundred
miles is also compatible with the length-of-haul classes in the
Commodity Flow Survey.
---------------------------------------------------------------------------
\15\ The ``2007 Field Survey'' is an alternate title for the
FMCSA, ``2007 Hours of Service Study,'' 2007. FMCSA-2004-19608-2538.
---------------------------------------------------------------------------
To evaluate the impact of the rule changes, the analysis needed to
define the prevailing operating patterns in the industry. Of particular
interest is the extent to which drivers work close to the limits set by
the current rule. To analyze current patterns in work intensity,
drivers were assigned to four intensity groups, based on their average
weekly hours of work. For this purpose, the analysis used data on
weekly work hours from FMCSA's 2007 Field Survey to define intensity
groups as shown in Table 6.
Moderate-intensity drivers are on duty an average of 45 hours per
week. High-intensity drivers are on duty an average of 60 hours per
week. The third group, very-high-intensity drivers, works an average of
70 hours per week. The fourth group, extreme-intensity drivers, is on
duty an average of 80 hours per week. The 2007 Field Survey indicated a
distribution of the driver population across these groups as shown
below.
Table 6--Driver Groups by Intensity of Schedule
------------------------------------------------------------------------
Weighted
Average Percent of average
Work intensity group weekly work workforce hours per
time week
------------------------------------------------------------------------
Moderate......................... 45 66 29.70
High............................. 60 19 11.40
Very High........................ 70 10 7.00
Extreme.......................... 80 5 4.00
--------------------------------------
Total........................ ........... ........... 52.10
------------------------------------------------------------------------
The weighted average is obtained by multiplying the average work
time in each class by the fraction of the workforce in that class. The
sum, just over 52 hours, is the average hours of work per week based on
each group's share of the total population. The analysis made similar
calculations using the Field Survey data to determine the weighted
averages for use of the 10th and 11th hour of drive time and the 14th
hour of daily on-duty time. These figures can be found in the
accompanying RIA.
To estimate the costs of operational changes, the basic approach is
to follow the chain of consequences from changes in HOS provisions to
the way they
[[Page 81176]]
would impinge on existing work patterns in terms of work and (where
relevant) driving hours per week, taking overlapping impacts of the
rule provisions into account. Estimated changes in productivity are
translated into changes in dollar costs using functions developed for
the regulatory analyses of previous HOS rules. Summing the different
cost components resulted in a total annualized cost of $1.00 billion
for Option 2, $470 million for Option 3, and $2.29 billion for Option
4. Though these costs are estimated using impacts on industry
productivity, they would most likely be passed along as increases in
freight transportation rates, and then ultimately to consumers in
increased prices for the goods that are transported by truck.
Rule Benefits
The primary goal of the final rule is to improve highway safety in
the most cost-effective way by reducing driver fatigue and the
associated increase in the probability that fatigued drivers will be
involved in crashes. A second benefit expected from this rule is a
decrease in driver mortality due to health problems caused by long
working hours and the association of long working hours with inadequate
sleep.
To analyze the safety impacts of the 2010 NPRM and 2011 final rule,
the Agency developed a series of functions that incorporate fatigue-
coded crashes to hours of daily driving and hours of weekly work. In
the pre-2010 HOS regulatory analyses, the effects on fatigue and
fatigue-related crashes of changing the HOS rules were calculated using
fatigue models. These models (the Walter Reed Sleep Performance Model
for the 2003 rules, and the closely related SAFTE/FAST Model for 2005,
2007, and 2008 analyses) took into account the drivers' recent sleeping
and waking histories, and calculated fatigue based on circadian effects
as well as acute and cumulative sleep deprivation. These models did not
incorporate functions that independently accounted for hours of driving
after an extended rest (i.e., acute time-on-task) or cumulative hours
of work (as opposed to off-duty time) over recent days. These effects
were assumed, instead, to be accounted for in the effects of long daily
and weekly work hours on the drivers' ability to sleep. For the 2005
and later analyses, a separate time-on-task function based on
statistical analysis of TIFA data was added to ensure that available
evidence for time-on-task effects was not ignored; those analyses were
still criticized as deficient for excluding consideration of cumulative
time-on-task effects.
For the 2010 NPRM and the 2011 final rule analyses, FMCSA replaced
the use of the sleep-related fatigue models with a simpler approach
that explicitly relates the risk of a fatigue-coded crash to hours of
daily driving and hours of weekly work. The function used to model the
effects of daily driving hours is the same as the TIFA-based logistic
function used since 2005, while the function for modeling weekly work
hours is taken from FMCSA's analysis of the LTCCS. Other fatigue
effects, including the effects of insufficient sleep and circadian
effects of working and sleeping at sub-optimal times, are implicitly
assumed to be incorporated in the daily driving and weekly work-hour
functions because those effects were at work on the drivers involved in
the crashes recorded in TIFA and LTCCS. To add fatigue effects
calculated by a sleep/performance model on top of the empirically based
functions would, therefore, run the risk of double counting the
benefits of restrictions on work and driving. These functions, and the
uncertainty surrounding them, are described in detail in the RIA.
The basic approach for using the empirically based fatigue risk
functions was to count the changes in hours worked and driven as a
result of the regulatory options. Each hour of driving that is avoided
results in a reduction in expected fatigue-related crashes. These
reductions were calculated using the predicted levels of fatigue-
related crashes indicated by the fatigue functions. The hours of
driving and working that are prevented by the options, though, were
assumed to be shifted to other drivers or to other work days rather
than being eliminated altogether. The fatigue crash risks for those
other drivers and other days were also calculated. Taking account of
these partially offsetting risks means that the predicted crash
reductions attributable to the options were really the net effect of
reducing risks at the extremes of driving and working while increasing
risks for other drivers and on other days.
The changes in crash risks were monetized (i.e., translated into
dollars) using a comprehensive and detailed measure of the average
damages from large truck crashes. This measure takes into account the
losses of life (based on the DOT's accepted value of a ``statistical
life,'' $6 million when this rulemaking began); medical costs for
injuries of various levels of severity, pain, and suffering; lost time
due to the congestion effects of crashes; and property damage caused by
the crashes themselves.\16\
---------------------------------------------------------------------------
\16\ Average large truck crash costs were obtained from the
report, ``Unit Costs of Medium and Heavy Truck Crashes,'' March
2007, by E. Zaloshnja and T. Miller. The cost of a crash was updated
to 2008 dollars and to reflect a value of a statistical life of $6
million. The report is in docket FMCSA-2004-19608-3995.
---------------------------------------------------------------------------
The monetary value of each of the effects thought to affect the
safety of drivers was estimated under three different assumptions of
the baseline level of fatigue involvements in crashes: 7 percent, 13
percent, and 18 percent. The total benefits resulting from improvements
in the safety of long-haul (LH) drivers for Options 2 through 4 are
shown below in Tables 7 through 9 below.\17\
---------------------------------------------------------------------------
\17\ Truck driver fatigue was coded as a factor in 13 percent of
all crashes in the Large Truck Crash Causation Study (LTCCS). As a
sensitivity analysis, FMCSA also used a lower value of 7 percent
involvement in fatigue-related crashes, based on the 8.15 percent
value used in the RIA for the 2003 HOS rule. A higher value of 18
percent involvement in fatigue-related crashes also was used as a
sensitivity analysis, chosen to be roughly as far above the LTCCS
value of 13 percent as the 8.15 percent pre-2003 estimate is below
13 percent.
Table 7--Estimated Safety Benefits by Fatigue Crash Rate for Option 2 (10 Hours Driving)
[Millions 2008$]
----------------------------------------------------------------------------------------------------------------
Benefits due to Benefits due to
reduced daily reduced weekly Total benefits
Assumed percent of crashes due to fatigue \17\ time on task time on task due to reduced
effect \a\ effect \b\ crashes
----------------------------------------------------------------------------------------------------------------
7...................................................... $110 $210 $320
13..................................................... 210 390 600
18..................................................... 290 540 830
----------------------------------------------------------------------------------------------------------------
\a\ Acute fatigue from long hours in a day.
[[Page 81177]]
\b\ Cumulative fatigue from long hours over many days.
Table 8--Estimated Safety Benefits by Fatigue Crash Rate for Option 3 (10 Hours Driving)
[Millions 2008$]
----------------------------------------------------------------------------------------------------------------
Benefits due to Benefits due to
reduced daily reduced weekly Total benefits
Assumed percent of crashes due to fatigue time on task time on task due to reduced
effect \a\ effect \b\ crashes
----------------------------------------------------------------------------------------------------------------
7...................................................... $10 $150 $150
13..................................................... 10 270 280
18..................................................... 10 380 390
----------------------------------------------------------------------------------------------------------------
\a\ Acute fatigue from long hours in a day.
\b\ Cumulative fatigue from long hours over many days.
Note: Totals do not add due to rounding.
Table 9--Estimated Safety Benefits by Fatigue Crash Rate for Option 4 (10 Hours Driving)
[Millions 2008$]
----------------------------------------------------------------------------------------------------------------
Benefits due to Benefits due to
reduced daily reduced weekly Total benefits
Assumed percent of crashes due to fatigue time on task time on task due to reduced
effect \a\ effect \b\ crashes
----------------------------------------------------------------------------------------------------------------
7...................................................... $290 $320 $610
13..................................................... 550 590 1,130
18..................................................... 760 810 1,570
----------------------------------------------------------------------------------------------------------------
\a\ Acute fatigue from long hours in a day.
\b\ Cumulative fatigue from long hours over many days.
Note: Totals do not add due to rounding.
The analysis also calculated benefits associated with improvements
in driver health. The Agency has a statutory mandate to ensure that
driving conditions do not impair driver health. Research indicates that
reducing total daily and weekly work for the drivers working high-
intensity schedules should result in these drivers getting more sleep
on a daily and weekly basis. Recent research on sleep indicates that
inadequate sleep is associated with increases in mortality. This effect
appears to involve several complex pathways, including an increase in
the propensity for workplace (and leisure time) crashes and mortality
due to decrements in several health-related measures, such as an
increase in the incidence of high blood pressure, obesity, diabetes,
other cardiovascular disease (CVD), and other health problems. See
Appendix B of the RIA for the references for this statement. The
analysis attempted to model the workplace transportation crash effect
explicitly in the crash reduction benefits. However, explicit modeling
of all the other various ways that insufficient sleep increases
mortality becomes too complex and uncertain for this analysis. The
studies the analysis relied on to model health benefits, therefore, are
population-based studies that look at overall mortality, independent of
the cause of death, as a function of sleep. Because increases in hours
worked are associated with decreases in hours spent sleeping and truck
drivers working high-intensity schedules get significantly less than
the 7 to 8 hours of sleep that studies generally show are required for
optimal mortality. Cutting back somewhat on daily work hours and more
significantly cutting back on weekly work hours should, to some extent,
reduce mortality among these drivers.
These benefit estimates depend on how much sleep CMV drivers
currently get and how much more sleep they are expected to get under
the proposed rule. The analysis developed a function that relates hours
worked to hours slept and used this function to predict how much more
sleep drivers would get under the proposed rule than they currently
obtain under the existing rule. The results of this analysis are
sensitive to the amount of sleep drivers are currently getting;
increases in sleep have less substantial health benefits if individuals
are already getting close to the optimal 7-8 hours per night than if
they average less sleep. Since there is a degree of uncertainty
surrounding how much sleep drivers currently get, a sensitivity
analysis varied the baseline amount of sleep drivers are currently
obtaining. This analysis showed that health improvement benefits are
greatest when drivers are getting the least sleep under the current
rule, because they have the most room for improvement.
The sensitivity analysis scenarios are divided into the low sleep,
medium sleep, and high sleep categories. Under the low sleep scenario,
the benefits are greatest because it is the most pessimistic regarding
how much sleep drivers currently obtain. The high sleep scenario
assumed that drivers are getting close to the optimal amount; as a
result, there is little if any benefit to giving them opportunity for
more sleep. Results of this analysis indicate that the measurable
health benefits of reducing the maximum hours of work allowed per week
could well be as great as the costs, and other possible health benefits
(which have not been included in the quantitative analysis) could add
even further to these benefits. The health benefits of Options 2
through 4 were estimated for three different levels of baseline sleep
by drivers at 7 and 3 percent discounting of future health benefits
(shown in Table 10). For the assumption of a high level of baseline
sleep for Options 2 and 4, it is interesting to note that the benefits
are negative (to a relatively minor extent for Option 2), indicating
that it is not beneficial for individuals to get additional sleep if
they are already getting adequate sleep.
[[Page 81178]]
Table 10--Estimated Health Benefits by Amount of Sleep for All Options
[3 and 7 Percent discount rates]
[Millions 2008$]
--------------------------------------------------------------------------------------------------------------------------------------------------------
Total benefits due to increased sleep
-----------------------------------------------------------------------------------------------
Assumed baseline amount of nightly sleep 7 Percent discounting 3 Percent discounting
-----------------------------------------------------------------------------------------------
Option 2 Option 3 Option 4 Option 2 Option 3 Option 4
--------------------------------------------------------------------------------------------------------------------------------------------------------
Benefits with Low Sleep................................. $810 $630 $1,110 $1,090 $850 $1,490
Benefits with Medium Sleep.............................. 380 350 370 510 470 500
Benefits with High Sleep................................ -50 70 -370 -70 90 -500
--------------------------------------------------------------------------------------------------------------------------------------------------------
In addition to the quantified and monetized benefits discussed
above, there may be other health benefits that shorter work days and
weeks could produce. Research indicates that the metabolic and
endocrine disruptions associated with short sleep time and long work
hours are significantly related to obesity (Van Cauter). Obesity is in
turn associated with higher incidences of diabetes, CVDs, hypertension,
and obstructive sleep apnea (Mokdad). These medical conditions impose
costs on drivers who suffer from them and affect the quality of their
lives. Sedentary work alone is also associated with obesity and
mortality impacts (Katzmarzyk).
Research on the health of drivers and health costs found that CMV
drivers are both heavier for their height and less healthy than adult
males as a whole. Drivers are far more likely than adult male workers
as a whole to be obese. Table 11 presents the distribution of drivers
by weight category and the incidence of health conditions for drivers
in each weight group, taken from a study that used medical examination
records and health insurance claims of 2,950 LTL drivers (Martin). (The
national statistics for the incidence of health conditions among adult
males include men over 70, who may have higher incidences of some
conditions than the younger working population.)
Table 11--Driver Health Conditions by Weight Category
----------------------------------------------------------------------------------------------------------------
Percent
drivers in Presence of at High
N = 2,950 weight least one Hypertension Diabetes cholesterol
category health risk (percent) (percent) (percent)
(percent) factor
----------------------------------------------------------------------------------------------------------------
Normal weight................... 13 26 21 5 11
Overweight...................... 30 39 31 10 17
Obese........................... 55 59 51 21 26
Overall......................... .............. 48 41 16 21
National adult male (CDC .............. .............. 31.80 \1\ 10.9 15.60
statistics)....................
----------------------------------------------------------------------------------------------------------------
\1\ 7.4% diagnosed.
FMCSA has not attempted to quantify the benefits of improved health
that may accrue to drivers who have more time off. First, the Agency
does not have dose-response curves that it can use to associate sleep
time with mitigation or exacerbation of the various health impacts
other than sleep loss itself. Second, many of the health impacts are
linked to obesity; given the difficulty most people have in losing
weight, it would be unjustifiably optimistic to attempt to estimate the
degree of potential weight loss.
The health consequences of long hours, inadequate sleep, and long
stretches of sedentary work are, however, significant: they cause
serious health conditions that may shorten a driver's life and increase
healthcare costs. In addition, some studies have linked obesity to
increased crash risks, including a recent analysis of the VTTI data,
which found that obese CMV drivers were between 1.22 and 1.69 times as
likely to drive while fatigued, 1.37 times more likely to be involved
in an SCE, and at 1.99 times greater risk of being above the fatigue
threshold as measured by eye closure when driving (Wiegand).
Conclusion
Net benefits (i.e., benefits minus costs) are likely to be
positive, but could range from a negative $730 million per year to more
than a positive $630 million per year for Option 2 (a negative $750
million to positive $920 million with 3 percent discounting), from a
negative $250 million to more than a positive $550 million for Option 3
(a negative $220 million to a positive $770 million with 3 percent
discounting), and from a negative $2.05 billion to more than a positive
$390 million for Option 4 (a negative $2.18 billion to a positive $780
million), as shown in Tables 12 through 14 below. The wide ranges in
estimates of benefits and net benefits are a consequence of the
difficulty of measuring fatigue and fatigue reductions, which are
complex and often subjective concepts, in an industry with diverse
participants and diverse operational patterns. Still, it seems clear
that the benefits could easily be substantial, and are on the same
scale as the costs. The costs, for their part, are large in absolute
terms but minor when compared to the size of the industry: $1.00
billion per year (the total annualized cost for Option 2) is less than
two thirds of 1 percent of revenues, $470 million per year (the total
annualized cost for Option 3) is less than one third of 1 percent of
revenues, and $2.29 billion per year (the total annualized cost for
Option 4) is less than 1.5 percent of revenues in the for-hire LH
segment of the industry. These total annual costs are an even smaller
fraction of revenues of the LH segment as a whole. As an additional
example, the costs of Option 3 are equivalent to about a $0.03 per
gallon increase in long-haul industry fuel costs, which is a minimal
increase in an industry used
[[Page 81179]]
to wide swings in fuel costs. Between 2006 and 2010, diesel fuel prices
ranged from $2.09 a gallon to $4.70 a gallon.\18\
---------------------------------------------------------------------------
\18\ U.S. Energy Information Administration, Gasoline and Diesel
Fuel Update, http://www.eia.gov/oog/info/gdu/gasdiesel.asp#.
Table 12--Net Benefits for Option 2 by Sleep Scenario, Crash Rate, and Discount Rate
[Millions 2008$]
--------------------------------------------------------------------------------------------------------------------------------------------------------
Assumed amount of nightly sleep
-----------------------------------------------------------------------------------------------
Assumed percent of crashes due to fatigue 7 Percent discounting 3 Percent discounting
-----------------------------------------------------------------------------------------------
Low sleep Medium sleep High sleep Low sleep Medium sleep High sleep
--------------------------------------------------------------------------------------------------------------------------------------------------------
7....................................................... $130 -$300 -$730 $410 -$170 -$750
13...................................................... 400 -20 -450 690 110 -470
18...................................................... 630 210 -220 920 340 -240
--------------------------------------------------------------------------------------------------------------------------------------------------------
Table 13--Net Benefits for Option 3 by Sleep Scenario, Crash Rate, and Discount Rate
[Millions 2008$]
--------------------------------------------------------------------------------------------------------------------------------------------------------
Assumed amount of nightly sleep
-----------------------------------------------------------------------------------------------
Assumed percent of crashes due to fatigue 7 Percent discounting 3 Percent discounting
-----------------------------------------------------------------------------------------------
Low sleep Medium sleep High sleep Low sleep Medium sleep High sleep
--------------------------------------------------------------------------------------------------------------------------------------------------------
7....................................................... $310 $30 -$250 $530 $150 -$220
13...................................................... 440 160 -120 660 280 -90
18...................................................... 550 270 -10 770 390 20
--------------------------------------------------------------------------------------------------------------------------------------------------------
Table 14--Net Benefits for Option 4 by Sleep Scenario, Crash Rate, and Discount Rate
[Millions 2008$]
--------------------------------------------------------------------------------------------------------------------------------------------------------
Assumed amount of nightly sleep
-----------------------------------------------------------------------------------------------
Assumed percent of crashes due to fatigue 7 Percent discounting 3 Percent discounting
-----------------------------------------------------------------------------------------------
Low sleep Medium sleep High sleep Low sleep Medium sleep High sleep
--------------------------------------------------------------------------------------------------------------------------------------------------------
7....................................................... -$570 -$1,310 $2,050 -$180 -$1,180 -$2,180
13...................................................... -50 -790 -1,520 340 -660 -1,650
18...................................................... 390 -350 -1,090 780 -220 -1,220
--------------------------------------------------------------------------------------------------------------------------------------------------------
Compared to the other two options that were analyzed, Option 2
would have roughly twice the costs of Option 3 (which allows 11 hours
of daily driving), and less than half the cost of Option 4 (which
allows 9). In keeping with their relative stringencies, Option 3 has
lower, and Option 4 has higher, projected benefits than Option 2.
Option 3's calculated net benefits appear likely to be somewhat higher
than the net benefits of Option 2 under some assumptions about baseline
conditions. Option 4's substantially larger costs, on the other hand,
did not appear to be justified by its generally higher range of
benefits. Based on the estimated net benefits of the options, FMCSA has
selected Option 3 as the Final Rule. The Agency's goal of improving
highway safety and protecting driver health, combined with the
potentially significant but unquantifiable health benefits of
reductions in maximum working and driving hours, make the functional
equivalent of Option 3--the final rule does not change a driving-time
limit but retains the current 11-hour limit--the most reasonable
choice.
Changes in the Analysis of HOS Options From the NPRM to the Final Rule
There are two distinct categories of changes that result in
different estimates of the costs and benefits of the HOS options
between the NPRM and the Final Rule:
Changes to the options, some of which change the cost/
benefit calculations for all of the options; and
As recommended by commenters, refinements to the benefit
analyses, which change the estimated benefits, and thus the estimated
net benefits, for each of the options.
The changes that fall into these two categories are discussed
below, followed by a description of how they affect the estimated costs
and benefits.
After considering the comments received on the NPRM and new
research, as well as the President's Executive Order 13563 on
``Improving Regulation and Regulatory Review,'' FMCSA has made several
changes to the HOS options considered in the NPRM, including the
following:
Eliminating a driving-time limit from the final rule.
Dropping the 13-hour limit on on-duty time between breaks
of at least 10 hours, but keeping the provision requiring at least a
half-hour break part-way through long days.
Shortening the 2-night restart window from two periods
including midnight and 6 a.m. to two periods including 1 a.m. through 5
a.m.
[[Page 81180]]
Changing the break requirements to require a break of a
half-hour (or more) within the past 8 hours of continuous work, rather
than 7, to continue driving.
Dropping the provision that would have allowed two 16-hour
driving windows per week.
Only the first three of these changes affect the cost/benefit
calculations. The other two do not change the cost/benefit calculations
because the analyses for the NPRM were not sensitive to the particular
provisions involved: the effects of breaks were considered to be
subsumed within the effect of the daily limit on duty hours, and the
use of a 16-hour driving window was not modeled due to uncertainty
about how and how much it would be used and the small expected
magnitude of its effects.
In response to comments and its own review of the analysis of
safety benefits, FMCSA has made three refinements to its benefits
analysis of the HOS options. First, as suggested by the Edgeworth
study, the safety benefits of reductions in cumulative fatigue are
being estimated using a finer-grained function. Because this change
affects all of the options to about the same extent, it has no real
effect on the relative rankings of the options. Similarly, in response
to the Edgeworth study, FMCSA has also refined its estimate of the
value of reducing crash damages per hour of effort reallocated from one
driver to another. Because this refinement affects all of the options
equally, it has no effect on their relative ranking. Third, the Agency
has made technical adjustments in the way it calculated and discounted
health benefits due to improvements in sleep duration. Careful re-
examination of the Ferrie study, occasioned by disagreements in docket
comments submitted by Ferrie and Cappuccio on the applicability of
their work to HOS rulemaking, suggested that a more refined estimate of
the health benefits was possible and should be undertaken. This new
analysis ultimately had minimal impact on the cost-benefit analysis,
and did not impact the Agency's decision to choose option 3 in the
final rule.
Chapter 5 of the RIA presents in detail the methodology used to
make these changes. These changes have the effect of moderately
reducing benefits associated with improvements in driver health. The
size of the reduction in benefits is affected by the discount rate,
with a 3 percent discount rate having a smaller impact. Although the
Agency norm is to present all impacts in the RIA--including driver
health benefits--discounted at 7 percent, the Agency applies equal
weight to results using the 3 percent discount rate. Using a 3 percent
discount rate, the options rank the same with or without the
methodological refinements--Option 3 (11 hours) would be the preferred
option at medium sleep, but Option 2 (10 hours) would have higher net
benefits at low sleep. Discounted at 7 percent, Option 3 would have
higher net benefits at both low sleep and medium sleep than Option 2.
Option 4 (9 hours) would be the least likely to have positive net
benefits, and its net benefits would be lower than the other two
options under any scenario.
B. Regulatory Flexibility Act
The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) requires
Federal agencies to determine whether rules subject to notice and
comment could have a significant economic impact on a substantial
number of small entities. FMCSA completed a Final Regulatory
Flexibility Analysis (FRFA) to analyze the impact of the proposed
changes to the HOS regulations on small entities.
1. A Statement of the Need for, and Objectives of, the Rule
The objectives of the today's changes to the HOS rule are to
improve safety in the most cost-effective manner while ensuring that
the requirements do not have an adverse impact on driver health. The
impact of HOS rules on CMV safety is difficult to separate from the
many other factors that affect heavy-vehicle crashes. While the Agency
believes that the data show no decline in highway safety since the
implementation of the 2003 HOS rule and its re-adoption in the 2005 HOS
rule, the 2007 IFR, and the 2008 HOS rule (73 FR 69567, 69572, Nov. 19,
2008), the total number of crashes, though declining, is still
unacceptably high. Moreover, the source of the decline in crashes is
unclear. FMCSA believes that the required break during long days, and
the limits on maximum weekly hours, coupled with FMCSA's many other
safety initiatives and assisted by the actions of an increasingly
safety-conscious motor carrier industry, will result in continued
reductions in fatigue-related CMV crashes and fatalities. Furthermore,
the changes in the rule are intended to protect drivers from the
serious health problems associated with excessively long work hours,
without significantly compromising their ability to do their jobs and
earn a living.
2. A Summary of the Significant Issues Raised by the Public Comments in
Response to the RFA, a Summary of the Assessment of the Agency of Such
Issues, and a Statement of Any Changes Made in the Proposed Rule as a
Result of Such Comments
Comments. Very few commenters directly addressed the Initial RFA
analysis. Commenters generally stated that the rule would affect
revenues of carriers, but these impacts were not specific to small
entities. Shippers and receivers also argued that they would be
affected, but these entities are not subject to FMCSA regulations and
are not, therefore, considered in the RFA analysis. The Petroleum
Marketers Association of America stated that the changes to the restart
provision would have a serious impact on small heating oil and propane
suppliers. They would need to hire extra drivers to cover emergency
deliveries.
FMCSA Response. As stated in previous responses, the restart
provision will affect only drivers working the longest hours. Without
information on the hours being worked by drivers for fuel retailers, it
is difficult to assess whether they will be affected, but most local
drivers do not work 60 to 70 hours a week and, therefore, are not
limited by the restart provision. In any case, drivers of CMVs used
primarily in the transportation of propane for winter heating are
statutorily exempt from most of the regulations in the FMCSRs if
compliance with those regulations would prevent the driver from
responding to an emergency condition requiring immediate response (see
49 CFR 390.3(f)(7)).
3. The Response of the Agency to Any Comments Filed by the Chief
Counsel for Advocacy of the Small Business Administration (SBA) in
Response to the Proposed Rule, and a Detailed Statement of Any Change
Made to the Proposed Rule in the Final Rule as a Result of the Comments
The Office of Advocacy at SBA filed comments that were a summary of
concerns raised by industry at a roundtable that it hosted on February
9, 2011. As SBA indicated, the comments are ``nearly identical to many
of those expressed at FMCSA's public listening session on the proposed
rule * * *.'' Summarized, the points are as follows:
The proposed rule is not supported by existing safety and
health data.
The proposed rule would reduce flexibility and could
actually impede safety and driver health by increasing the stress on
drivers as they try to work within the limits.
[[Page 81181]]
The proposed rule would be operationally disruptive and
costly.
Truck related crashes are decreasing under the current
rules, even while truck miles driven have increased.
FMCSA Response. As has been stated throughout this preamble, FMCSA
disagrees strongly with these industry claims. The rule is supported by
research on crashes and the health effects of long hours on health.
Research on the effects of long work hours on crash rates, both for
drivers and for other workers clearly indicate that risk rises after 8
hours of work. The research on the health effects of sleep loss and
long hours is also extensive.
On the idea that the limits put stress on drivers, the Agency notes
that any limit will do this for a driver who is working to the limits.
The only way to remove this stress is to allow drivers and carriers to
work as many hours as they want regardless of the safety consequences.
Research has shown that drivers (and everyone else) have very little
ability to accurately assess their own fatigue levels, as is also
evidenced by the high percentage of CMV drivers who admit to falling
asleep at the wheel. Today's rule allows the hardest working drivers to
average 70 hours a week, which is surely enough.
The claims of serious operational disruptions are unsupported by
any data and contradicted by the industry's own statements that the
provisions at issue are not used by most drivers. SBA noted that
carriers are subject to factors beyond their control, such as loading
dock availability. FMCSA recognizes that carriers cannot control
shippers and receivers, but allowing drivers to regularly work maximum
hours is not a reasonable solution to that problem. On SBA's final
point, Section IV. ``Discussion of All Comments'' A. ``Safety'' of this
preamble discusses the flaws in this argument at length.
FMCSA has made changes to the final rule to reduce the complexity
of the rule and provide some flexibility. The periods required under
the 2-night restart provision are 2 hours shorter than proposed; this
change will provide more flexibility for drivers who work at night
irregularly. Most drivers who have regular nighttime schedules already
take 2 nights off a week and do not need to use the restart provision.
The final rule also changes the break requirement to make it easier for
drivers using the sleeper berth provision. Finally, FMCSA has removed
the 13-hour duty time limit to reduce the complexity of the final rule.
4. A Description and an Estimate of the Number of Small Entities to
Which the Rule Will Apply or an Explanation of Why No Such Estimate Is
Available
The HOS regulations apply to both large and small motor carriers.
The SBA defines a small entity in the truck transportation sub-sector
(North American Industry Classification System [NAICS] 484) as an
entity with annual revenue of less than $25.5 million [13 CFR 121.201].
Using data from the 2007 Economic Census, FMCSA estimated that the
average carrier earns roughly $160,000 in annual revenue per truck for
firms with multiple power units,\19\ suggesting that a typical carrier
that qualifies as a small business would have fewer than 141 ($25.5
million/$160,000) power units (i.e., trucks or tractors) in its fleet.
From the 2007 Economic Census data on non-employer firms, sole
proprietorships earn approximately $107,700 in annual revenue.
---------------------------------------------------------------------------
\19\ See the RIA Appendix A for the revenue per power unit. A
firm with one power unit and two drivers would have even higher
revenues per truck because the two drivers could drive more hours
than a firm with a single driver.
---------------------------------------------------------------------------
To determine the number of affected small entities, we used the
analysis conducted by FMCSA for the Unified Carrier Registration (UCR)
rule.\20\ The economic analysis for the UCR rule divided carriers into
brackets based on their fleet size (i.e., number of power units), and
estimated the number of carriers in each bracket. These brackets and
their corresponding numbers of carriers are shown in Table 15.
According to these estimates and the above-mentioned characterizations
of small entities in the trucking industry, all of the carriers in
Brackets 1 through 4 would qualify as small entities, as would many of
the carriers in Bracket 5. Therefore, this analysis estimates that
between 422,196 (Brackets 1 through 4) and 425,786 (Brackets 1 through
5) small entities would be affected by the HOS rule changes. This range
overstates the number of affected small entities for several reasons.
First, many private carriers with small fleets may not qualify as small
businesses because their primary business is not the movement of
freight. These private firms have other sources of revenue and fall
under different NAICS codes; for example, one of the largest pharmacy
chains has fewer than 141 power units, but is not a small entity.
Second, the carriers are allowed to register by location so that a
single firm may have multiple DOT registrations, each of which appears
to be small, but which at the firm level represents a large entity.
Third, the carrier numbers include firms that are not subject to this
rule, such as passenger-carrying carriers and utilities, or are subject
to only part of the rule (e.g., construction firms have a different
restart provision).
---------------------------------------------------------------------------
\20\ FMCSA, ``Regulatory Evaluation of the Fees for the Unified
Carrier Registration Plan,'' February 19, 2010. Available in the
docket: FMCSA-2009-0231-0181.
Table 15--Number of Carriers by Fleet Size
[From FMCSA's analysis of the unified carrier registration plan rule]
------------------------------------------------------------------------
Number of
Bracket Fleet size carriers
------------------------------------------------------------------------
1................................... 1 194,425
2................................... 2-5 145,266
3................................... 6-20 65,155
4................................... 21-100 17,350
5................................... 101-1,000 3,590
6................................... 1,001+ 292
-----------------------------------
Total........................... ................ 426,078
------------------------------------------------------------------------
Table 16 below presents figures for private carriers by NAICS code
for industries with large numbers of drivers (and hence the likelihood
of large numbers of fleets). The table includes the total number of CMV
drivers
[[Page 81182]]
working in each industry, the percentage of payroll those drivers
account for, and the payroll of those industries as a percent of total
industry revenue. Some of these industries have SBA size thresholds
that are considerably lower than the threshold for truck
transportation, strongly suggesting that many firms in these industries
that would be considered small using the threshold of 141 power units
are actually large. For example, a wholesaler with 141 trucks is
certainly a large firm because it will have more than 100 employees.
Other industries have thresholds as high as 1,500 full-time equivalent
employees (FTEs); a firm in one of these industries might rank as small
with even more than 141 power units if the number of power units in its
fleet were large compared to the size of its workforce (e.g., if it had
300 power units, and only three employees per power unit, it could be
considered small in an industry with a threshold of 1,500 FTEs). From
Table 16, however, this circumstance is not likely to be common: in
firms in NAICS 21 and 31-33, which have high FTE thresholds, drivers
make up only a very small percentage of the workforce. Thus, firms with
a substantial numbers of power units are likely to have much larger
labor forces, and are therefore likely to rank as large firms. Given
these considerations, we are, if anything, over-counting the number of
private carriers that qualify as small businesses.
Table 16--Private Carriers and Drivers by Industry
--------------------------------------------------------------------------------------------------------------------------------------------------------
Drivers as Payroll as
NAICS Industry SBA standard Number of percent of all percent of
drivers employees revenues
--------------------------------------------------------------------------------------------------------------------------------------------------------
21...................................... Mining, Quarrying, and Oil 500 FTE.................... 29,900 4.17 10
and Gas Extraction.
23...................................... Construction............... $14 million to $33.5 127,200 1.76 19
million.
31-33................................... Manufacturing.............. 500-1,500 FTE.............. 238,600 1.78 11
42...................................... Wholesale.................. 100 FTE.................... 509,000 8.53 5.5
44-45................................... Retail..................... $7 million to $29 million.. 307,900 2.01 10
53...................................... Real Estate and Leasing.... $7 million to $25 million.. 40,500 1.9 18
56...................................... Administrative and Support $7 million to $35.3 million 132,300 1.64 46
and Waste Management and
Remediation Services.
722..................................... Food Services.............. $7 million................. 175,400 1.82 29
81...................................... Other Services............. $7 million................. 44,000 0.80 24
--------------------------------------------------------------------------------------------------------------------------------------------------------
The analysis of the impact of the HOS rule on small entities shows
that, while it is unlikely for the rule to have a significant impact on
most small entities, FMCSA cannot certify that there would be no
significant impacts. For a typical firm, the first-year costs of the
final rule are well below 1 percent of revenues, as are the average
annual costs when spread over 10 years.
However, projecting the distribution of impacts across carriers,
few of which fit the definition of typical, is made more difficult by
the variability in both costs and revenues. The new HOS rule is
designed to rein in the most high-intensity patterns of work while
leaving more moderate operations largely unchanged. As a result, we
project a substantial majority of the costs of the rule to fall on the
sixth of the industry currently logging the most hours per week. Thus,
most carriers are likely to be almost unaffected, while a minority
could experience productivity impacts--and hence costs--well above the
industry average.
Average revenues presumably range widely as well, meaning that the
ratio of costs to revenues is difficult to characterize. Because
greater work intensities are likely to generate greater revenues,
though, the impacts and revenues per power unit are likely to be
positively correlated: the carriers for which productivity is curtailed
the most and which could incur the greatest costs will, therefore, be
likely to have unusually large revenues per power unit as well.
5. A Description of the Projected Reporting, Recordkeeping, and Other
Compliance Requirements of the Rule, Including an Estimate of the
Classes of Small Entities Which Will Be Subject to the Requirement and
the Type of Professional Skills Necessary for the Preparation of the
Report or Record
The rule does not change recordkeeping or reporting requirements.
Drivers are required by current rules to keep records of duty status
that document their daily and weekly on-duty and driving time, and
submit these records of duty status to their employing motor carrier on
a bi-weekly basis. This rule does not change or add to this
recordkeeping requirement for drivers or carriers. Drivers in all
segments of the industry, including independent owner-operators, are
well accustomed to complying with these recordkeeping and reporting
requirements, and no professional skill over and above those skills
that drivers already possess would be necessary for preparing these
reports. All small entities in the industry that operate in interstate
commerce are subject to these rules. The type and classes of these
small entities are described in the previous section of this analysis.
6. A Description of the Steps the Agency Has Taken To Minimize the
Significant Adverse Economic Impact on Small Entities Consistent With
the Stated Objectives of Applicable Statutes, Including a Statement of
the Factual, Policy, and Legal Reasons for Selecting the Alternative
Adopted in the Final Rule and Why Each of the Other Significant
Alternatives to the Rule Considered by the Agency Was Rejected
The Agency did not identify any significant alternatives to the
rule that could lessen the burden on small entities without
compromising its goals. However, in response to docket comment from the
motor carrier industry, in which small entities are very heavily
represented, the Agency did modify the options proposed in the NPRM to
reduce both the cost and complexity of the rule adopted today. These
changes include retaining the 11-hour daily driving limit, and
shortening the 2 nighttime periods required by the new restart
provision by one-third, from 12 midnight-6 a.m. to 1 a.m.-5 a.m. This
rule is targeted at preventing driver fatigue, and the Agency is
unaware of any alternative to restricting driver work that the Agency
has authority to implement that would address driver fatigue. This rule
impacts motor carrier
[[Page 81183]]
productivity proportionally to the number of drivers a motor carrier
employs and the intensity of the schedules that motor carrier's drivers
work. It is not obvious that productivity losses would be greater for
small entities than for larger firms. To the extent that drivers
working for a small entity work more intense schedules, that entity may
experience greater productivity losses than a carrier whose drivers
work less intensely on a daily and weekly basis. However, there appears
to be no alternative available to the Agency that would limit driver
fatigue while allowing more work. To improve public safety, all
drivers, regardless of the size of the carrier they work for, must work
within reasonable limits.
The recordkeeping and reporting burdens related to this rule will
also affect entities proportional to the number of drivers they employ,
and therefore do not disproportionately affect small motor carriers in
any way. As noted above, drivers in all segments of the industry,
working for entities of all sizes, are accustomed to compiling and
submitting records of duty status on a regular basis. This rule will
therefore not place an undue recordkeeping or reporting burden on
smaller entities.
C. Paperwork Reduction Act
This rule would call for no new collection of information under the
Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).
D. National Environmental Policy Act
The Agency analyzed this rule for the purpose of the National
Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321 et seq.) and
determined under our environmental procedures Order 5610.1, published
March 1, 2004 in the Federal Register (69 FR 9680), that this action
will not have a significant impact on the environment. FMCSA has also
analyzed this rule under the Clean Air Act, as amended (CAA) section
176(c), (42 U.S.C. 7401 et seq.) and implementing regulations
promulgated by the Environmental Protection Agency. Approval of this
action is exempt from the CAA's general conformity requirement since it
would not result in any potential increase in emissions that are above
the general conformity rule's de minimis emission threshold levels (40
CFR 93.153(c)(2)). The Agency received no comments on the draft
Environmental Assessment, published with the NPRM. A copy of the
Environment Assessment is available in the docket.
E. Executive Order 13132 (Federalism)
A rule has implications for Federalism under Executive Order 13132,
Federalism, if it has a substantial direct effect on State or local
governments and would either preempt State law or impose a substantial
direct cost of compliance on them. This action has been analyzed in
accordance with E.O. 13132. FMCSA has determined this rule would not
have a substantial direct effect on States, nor would it limit the
policymaking discretion of States. Nothing in this document preempts
any State law or regulation.
F. Privacy Impact Assessment
FMCSA conducted a Privacy Threshold Analysis (PTA) for the rule on
hours of service and determined that it is not a privacy-sensitive
rulemaking because the rule will not require any collection,
maintenance, or dissemination of Personally Identifiable Information
(PII) from or about members of the public.
G. Executive Order 12630 (Taking of Private Property)
This rule would not effect a taking of private property or
otherwise have taking implications under Executive Order 12630,
Governmental Actions and Interference with Constitutionally Protected
Property Rights.
H. Executive Order 12988 (Civil Justice Reform)
This rule meets applicable standards in sections 3(a) and 3(b)(2)
of Executive Order 12988, Civil Justice Reform, to minimize litigation,
eliminate ambiguity, and reduce burden.
I. Executive Order 13045 (Protection of Children)
FMCSA analyzed this rule under Executive Order 13045, Protection of
Children from Environmental Health Risks and Safety Risks. This rule
would not create an environmental risk to health or risk to safety that
might disproportionately affect children.
J. Executive Order 13211 (Energy Supply, Distribution, or Use)
FMCSA analyzed this rule under Executive Order 13211, Actions
Concerning Regulations That Significantly Affect Energy Supply,
Distribution, or Use. FMCSA determined that it is not a ``significant
energy action'' under that order. Though it is a ``significant
regulatory action'' under Executive Order 12866, it is not likely to
have a significant adverse effect on the supply, distribution, or use
of energy. The Administrator of the Office of Information and
Regulatory Affairs has not designated it as a significant energy
action. Therefore, it does not require a Statement of Energy Effects
under Executive Order 13211.
K. Executive Order 12898 (Environmental Justice)
FMCSA evaluated the environmental effects of this NPRM in
accordance with Executive Order 12898 and determined that there are no
environmental justice issues associated with its provisions nor any
collective environmental impact that could result from its
promulgation. Environmental justice issues would be raised if there
were ``disproportionate'' and ``high and adverse impact'' on minority
or low-income populations. None of the alternatives analyzed in the
Agency's EA, discussed under NEPA, would result in high and adverse
environmental impacts.
L. Unfunded Mandates Reform Act
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538)
requires Federal agencies to assess effects of their discretionary
regulatory actions. In particular, the Act addresses actions that may
result in the net expenditure by a State, local, or tribal government,
in the aggregate, or by the private sector of $143.1 million or more in
any one year. Though this rule would not result in a net expenditure at
this level, the economic impacts of the rule have been analyzed in the
RIA.
VII. Bibliography
[Aring]kerstedt, T., ``Shift Work and Disturbed Sleep/Wakefulness,''
Occupational Medicine, Vol. 53, 2003, pp. 89-94. FMCSA-2004-19608-
4037.
[Aring]kerstedt, T. & Wright, K.P., ``Sleep Loss and Fatigue in
Shift Work and Shift Work Disorder,'' Sleep Medicine Clinics, Vol.
4, No. 2, pp. 257-271, June 2009. Retrieved June 17, 2011, from:
http://www.ncbi.nlm.nih.gov/pmc/articles/PMC2904525/pdf/nihms215779.pdf.
American Trucking Associations, ``Trucking Activity Report
Historical Truckload Sector Database,'' March 2011. Available online
at http://www.atabusinesssolutions.com/p-24-ata-trucking-activity-report-trac.aspx.
Balkin, T., Thorne, D., Sing, H., Thomas, M., Redmond, D.,
Wesensten, N., Williams, J., Hall, S., & Belenky, G., ``Effects of
Sleep Schedules on Commercial Motor Vehicle Driver Performance,''
FMCSA, Washington, DC, 2000. FMCSA-2004-19608-2007.
Belenky, G., Wesensten, N.J., Thorne, D.R., Thomas, M.L., Sing,
H.C., Redmond, D.P., Russo, M.B. & Balkin, T.J., ``Patterns of
Performance Degradation and Restoration During Sleep Restriction and
Subsequent Recovery: A Sleep Dose-Response Study,'' Journal of Sleep
Research, Vol. 12, No. 1, March 2003, pp. 1-12. FMCSA-2004-19608-
3959.
[[Page 81184]]
Blanco, M., Hanowski, R., Olson, R., Morgan, J., Soccolich, S., Wu,
S.C., & Guo, F., ``The Impact of Driving, Non-Driving Work, and Rest
Breaks on Driving Performance in Commercial Motor Vehicle
Operations,'' FMCSA, April 2011. FMCSA-2004-19608-27612.
Bureau of Labor Statistics, DOL, ``Household Data Annual Averages,
23. Persons at Work by Occupation, Sex, and Usual Full- or Part-Time
Status,'' 2010. Retrieved June 22, 2011, from: http://www.bls.gov/cps/cpsaat23.pdf.
Bureau of Labor Statistics, DOL, ``Lost-Worktime Injuries and
Illnesses, 2009.'' Retrieved July 20, 2011, from: http://www.bls.gov/news.release/pdf/osh2.pdf.
Bureau of Labor Statistics, DOL, ``Nonfatal Occupational Injuries
and Illnesses Requiring Days Away from Work, 2009.'' News Releases,
November 9, 2010. Retrieved from: http://www.bls.gov/news.release/archives/osh2_11092010.pdf.
Bureau of Transportation Statistics (RITA, DOT) and U.S. Census
Bureau, ``2007 Economic Census: Transportation: 2007 Commodity Flow
Survey,'' April 2010. FMCSA-2004-19608-4024.
Burks, S.V., Carpenter, J., Goette, L., Monaco, K., Rustichini, A.,
& Porter, K., ``Using Behavioral Economic Experiments at a Large
Motor Carrier: The Context and Design of the Truckers and Turnover
Project,'' National Bureau of Economic Research working paper, March
2007. Retrieved August 3, 2011, from: http://www.nber.org/papers/w12976.
Caldwell, J.A., ``Fatigue in the Aviation Environment: An Overview
of the Causes and Effects as Well as Recommended Countermeasures,''
Aviation, Space, and Environmental Medicine, Vol. 68, 1997, pp. 932-
8.
Cappuccio, F.P., ``Analysis and Expert Opinion on the Federal Motor
Carrier Safety Administration's (FMCSA) Methodology for Valuing
Health Benefits as Presented in 2010-2011 Hour of Service Regulatory
Impact Analysis (RIN 2126-AB26) Section 5,'' prepared for and
submitted by ATA, February 23, 2011. FMCSA-2004-19608-21675.
Cappuccio, F.P., D'Elia, L., Strazzullo, P., & Miller, M.A., ``Sleep
Duration and All-Cause Mortality: A Systematic Review and Meta-
Analysis of Prospective Studies,'' Sleep, Vol. 33, No. 5, 2010, pp.
585-592. FMCSA-2004-19608-4041.
Cassidy, W.B., ``Driver Pay Falling as Demand Rises, Study Shows,''
Journal of Commerce Online, May 19, 2010. Retrieved June 21, 2011,
from: http://www.joc.com/trucking/driver-pay-falling-demand-rises-study-shows.
Cassidy, W.B., ``Truck Driver Pay Rising,'' Journal of Commerce
Online, April 18, 2011. Retrieved June 3, 2011, from: http://www.joc.com/trucking/truck-driver-pay-rising.
Dembe, A.E., Erickson, J.B., Delbos, R.G., & Banks, S.M., ``The
Impact of Overtime and Long Work Hours on Occupational Injuries and
Illnesses: New Evidence from the United States,'' Journal of
Occupational and Environmental Medicine, Vol. 62, 2005, pp. 588-597.
FMCSA-2004-19608-3277 (five attachments).
Dills, T. ``Specter of CSA-Led Driver Shortage Holds Reward
Potential for Truly Safe Drivers.'' NATSO Truckers News, January 1,
2011. Retrieved June 2, 1011 from: http://www.truckersnews.com/does-less-equal-more/.
Di Milia, L., & Mummery, K., ``The Association Between Job-Related
Factors, Short Sleep, and Obesity,'' Industrial Health, Vol. 47,
2009, pp. 363-368. FMCSA-2004-19608-3967.
Dingus, T.A., Hardee, L., & Wierwille, W.W., ``Models for On-Board
Detection of Driver Impairment,'' Accident Analysis and Prevention,
Vol. 19, No. 4, 1987, pp. 271-283.
Dingus, T.A., Neale, V.L., Garness, S.A., Hanowski, R.J., Keisler,
A.S., Lee, S.E., Perez, M.A., Robinson, G.S., Belz, S.M., Casali,
J.G., Pace-Schott, E.F., Stickgold, R.A., & Hobson, J.A., ``Impact
of Sleeper Berth Usage on Driver Fatigue,'' NHTSA, 2002. FMCSA-2004-
19608-1994.
Edgeworth Economics, ``Review of FMCSA's Regulatory Impact Analysis
for the 2010-2011 Hours of Service Rule,'' prepared for and
submitted by the ATA, February 15, 2011. FMCSA-2004-19608-11823.
Ferrie, J., Shipley, M., Cappuccio, F., Brunner, E., Miller, M.,
Kumari, M., & Marmot, M., ``A Prospective Study of Change in Sleep
Duration: Associations with Mortality in the Whitehall II Cohort, ''
Sleep, Vol. 30, No. 12, 2007, pp. 1659-1666. FMCSA-2004-19608-3969.
See also the comment that Jane E. Ferrie sent to the docket, posted
March 4, 2011: FMCSA-2004-19608-20703.
FMCSA, ``2007 Hours of Service Study,'' 2007. (Called the 2007 FMCSA
Field Survey.) FMCSA-2004-19608-2538.
FMCSA, ``FMCSA HOS Field Survey: Implementation and Use of the April
2003 Hours-of-Service Regulations,'' 2005. (Called the 2005 FMCSA
Field Survey.) FMCSA-2004-19608-2090.
FMCSA, ``Analyses of Fatigue-Related Large Truck Crashes, The
Assignment of Critical Reason, and Other Variables Using the Large
Truck Crash Causation Study,'' 2008. FMCSA-2004-19608-3481.
FMCSA, ``Regulatory Impact Analysis for Hours of Service Options,''
2008. FMCSA-2004-19608-3510.1.
FMCSA, ``Regulatory Evaluation of the Fees for the Unified Carrier
Registration Plan,'' February 19, 2010. FMCSA-2009-0231-0181.
FMCSA,``Large Truck Crash Causation Study Summary Tables.''
Retrieved June 8, 2010, from: http://ai.fmcsa.dot.gov/ltccs/data/documents/SummaryTables.pdf. FMCSA-2004-19608-3971.
FMCSA email to ATA, ``Response to ATA Request for Further
Information on the Cumulative Fatigue Function Used in the
Regulatory Evaluation for the 2010 NPRM Proposing Revisions to the
Hours of Service Rules,'' January 28, 2011. FMCSA-2004-19608-6147
(three attachments).
Grandner, M., & Patel, N., ``From Sleep Duration to Mortality:
Implications of Meta-Analysis and Future Directions,'' Journal of
Sleep Research, Vol. 18, 2009, pp. 145-147. FMCSA-2004-19608-3974.
Hanowski, R.J., Hickman, J., Fumero, M.C., Olson, R.L., & Dingus,
T.A., ``The Sleep of Commercial Vehicle Drivers Under the 2003
Hours-of-Service Regulations,'' Accident, Analysis and Prevention,
Vol. 39, No. 6, November 2007, pp. 1140-1145. FMCSA-2004-19608-3977.
Hanowski, R.J., Olson, R.L., Bocanegra, J., & Hickman, J.S.,
``Analysis of Risk as a Function of Driving Hour: Assessment of
Driving Hours 1 Through 11,'' FMCSA, 2008. FMCSA-2004-19608-3521.
Hanowski, R.J., Wierwille, W.W., Garness, S.A., & Dingus, T.A.,
``Impact of Local/Short Haul Operations on Driver Fatigue,'' FMCSA,
September 2000. FMCSA-2004-19608-0091.
Hickman, J., Hanowski, R. & Bocanegra, J., ``Distraction in
Commercial Trucks and Buses: Assessing Prevalence and Risk in
Conjunction with Crashes and Near-Crashes,'' FMCSA, 2010. FMCSA-
2010-0096-0004.
Hossain, J.L., Reinish, L.W., Heslegrave, R.J., Hall, G.W., Kayumov,
L., Chung, S.A., Bhuiya, P., Jovanovic, D., Huterer, N., Volkov, J.,
& Shapiro, C.M., ``Subjective and Objective Evaluation of Sleep and
Performance in Daytime Versus Nighttime Sleep in Extended-Hours
Shift-Workers at an Underground Mine,'' Journal of Occupational and
Environmental Medicine, Vol. 46, No. 3, March 2004, pp. 212-226.
Isidore, C., ``Wanted: 400,000 Truck Drivers,'' CNNMoney.com, June
9, 2010. Retrieved June 14, 2011, from: http://money.cnn.com/2010/06/09/news/economy/truck_driver_shortage/index.htm http://www.msnbc.msn.com/id/42476113/ns/business-careers/t/should-american-workers-really-keep-truckin/.
Jovanis, J.P., Wu, K.F., & Chen, C., ``Hours of Service and Driver
Fatigue--Driver Characteristics Research,'' FMCSA, April 2011.
FMCSA-2004-19608-27614.
Jovanis, P.P., Kaneko, T., & Lin, T., ``Exploratory Analysis of
Motor Carrier Accident Risk and Daily Driving Patterns,'' 1991.
FMCSA-2004-19608-1997.
Kaneko, T., & Jovanis, P.P., ``Multiday Driving Patterns and Motor
Carrier Accident Risk: A Disaggregate Analysis,'' Accident Analysis
and Prevention, Vol. 24, No. 5, 1992, pp. 437-456. FMCSA-2004-19608-
4052.
Katzmarzyk, P.T., Church, T.S., Craig, C.L., & Bouchard, C.,
``Sitting Time and Mortality from All Causes, Cardiovascular
Disease, and Cancer,'' Medicine and Science in Sports and Exercise,
Vol. 41, No. 5, May 2009, pp. 998-1005. FMCSA-2004-19608-4001.
Knipling, R.R., Boyle, L.N., Hickman, J.S., York, J.S., Daecher, C.,
Olsen, E.C.B., & Prailey, T.D., ``Individual Differences and the
`High Risk' Commercial Driver: A Synthesis of Safety Practices.
Commercial Truck and Bus Safety, Synthesis 4,'' Transportation
Research Board of the National Academies. Washington, DC 2004.
[[Page 81185]]
Knipling, R.R., ``Safety for the Long Haul; Large Truck Crash Risk,
Causation, and Prevention,'' American Trucking Associations, 2009.
Lin, T.D., Jovanis, P.P., & Yang, C.Z., ``Modeling the Safety of
Truck Driver Service Hours Using Time-Dependent Logistic
Regression,'' Transportation Research Record, No. 1407, 1993, pp. 1-
10. FMCSA-2004-19608-0069.
Lin, T.D., Jovanis, P.P., & Yang, C.Z., ``Time of Day Models of
Motor Carrier Accident Risk,'' Transportation Research Record, No.
1467, 1994, pp. 1-8. FMCSA-2004-19608-4054.
Longthorne, A., Subramanian, R., & Chen, C.L., ``An Analysis of the
Significant Decline in Motor Vehicle Traffic Fatalities in 2008,''
NHTSA, June 2010. Retrieved June 15, 2011, from: http://www-nrd.nhtsa.dot.gov/Pubs/811346.pdf.
Marais, M.L., ``Concerning FMCSA's Responses to Challenges to
FMCSA's Reliance on Regression Analysis of `Time-on-Task' Effects on
Crash Risks, Including FMCSA's Revision of Its Initial Regression
Model'', February 2008.
Martin, B.C., Church, T.S., Bonnell, R., Ben-Joseph, R., &
Borgstadt, T., ``The Impact of Overweight and Obesity on the Direct
Medical Costs of Truck Drivers,'' Journal of Occupational and
Environmental Medicine, Vol. 51, No. 2, February 2009, pp. 180-184.
FMCSA-2004-19608-4004.
Massie, D.L., Blower D., & Campbell, K.L., ``Short-Haul Trucks and
Driver Fatigue,'' Office of Motor Carriers, FHWA, 1997. FMCSA-2004-
19608-0070.
Mast, T., Jones, H., & Heimstra, N. ``Effects of Fatigue on
Performance in a Driving Device. Highway Research Record.'' Driver
Fatigue Research: Development of Methodology, Haworth, Vulcan,
Triggs, and Fildes, eds., Accident Research Center, Monash
University Australia, 1989.
Mokdad, A.H., Ford, E.S., Bowman, B.A., Dietz, W.H., Vinicor, F.,
Bales, V.S., & Marks, J.S., ``Prevalence of Obesity, Diabetes, and
Obesity-Related Health Risk Factors, 2001,'' Journal of the American
Medical Association, Vol. 289, No. 1, 2003, pp. 76-79. FMCSA-2004-
19608-4016.
Monk, T.H., ``What Can the Chronobiologist Do to Help the Shift
Worker?'' Journal of Biological Rhythms, Vol. 15, No. 2, April 2000,
pp. 86-94. FMCSA-2004-19608-4057.
NHTSA, ``Early Estimate of Motor Vehicle Traffic Fatalities in
2010,'' Traffic Safety Facts, April 2011. Retrieved June 2, 2011,
from: http://www-nrd.nhtsa.dot.gov/Pubs/811451.pdf.
NTSB, ``Factors That Affect Fatigue in Heavy Truck Accidents Volume
1: Analysis,'' 1996. FMCSA-2004-19608-2013.
Olson, R.L., Hanowski, R.J., Hickman, J.S., & Bocanegra, J.,
``Driver Distraction in Commercial Vehicle Operations,'' FMCSA,
2009. FMCSA-2009-0370-0005.
O'Neill, T.R., Krueger, G.P., Van Hemel, S.B., & McGowan, A.L.,
``Effects of Operating Practices on Commercial Driver Alertness,''
1999. FMCSA-2004-19608-0071.
O'Reilly, J., ``Exclusive Inbound Logistics Research: Trucking
Perspectives 2009,'' September 2009. Retrieved June 10, 2011, from:
http://www.inboundlogistics.com/articles/features/0909_feature02.shtml.
O'Reilly, J., ``Exclusive Research: Trucking Perspectives 2010,''
September 2010. Retrieved June 13, 2010, from: http://www.inboundlogistics.com/articles/features/0910_feature02.shtml.
Pilutti, T. & Ulsoy, A.G., ``Identification of Driver State for
Lane-Keeping Tasks: Experimental Results.'' Proceedings of the
American Control Conference, Albuquerque, NM, June 1997.
Sando, T., Mtoi, E., & Moses, R., ``Potential Causes of Driver
Fatigue: A Study on Transit Bus Operators in Florida,''
Transportation Research Board of the National Academies' 2011 90th
Annual Meeting, paper no. 11-3398, November 2010. FMCSA-2004-19608-
27618 [Sando (2010a)].
Sando, T., Angel, M., Mtoi, E., & Moses, R., ``Analysis of the
Relationship Between Operator Cumulative Driving Hours and
Involvement in Preventable Collisions,'' Transportation Research
Board of the National Academies' 2011 90th Annual Meeting, paper no.
11-4165, November 2010. FMCSA-2004-19608-27616 [Sando (2010b)].
Sivak, M., & Schoettle B., ``Toward Understanding the Recent Large
Reductions in U.S. Road Fatalities,'' UMTRI-2010-12, May 2010.
Retrieved June 15, 2010, from: http://deepblue.lib.umich.edu/bitstream/2027.42/71390/1/102304.pdf. FMCSA-2004-19608-28149.
Skipper, J.H., Wierwille, W., & Hardee, L., (1984). ``An
Investigation of Low Level Stimulus Induced Measures of Driver
Drowsiness,'' Virginia Polytechnic Institute and State University
(IEOR Department Report 8402), Blacksburg, VA, 1984.
Spiegel, K., Leproult, R., & Van Cauter, E., ``Impact of Sleep Debt
on Metabolic and Endocrine Function,'' The Lancet, Vol. 354, No.
9188, October 23, 1999, pp. 1435-1439. Abstract only: FMCSA-2004-
19608-0101.
Stein, A.C., ``Detecting Fatigued Drivers with Vehicle Simulators,''
Driver Impairment, Driver Fatigue and Driving Simulation, L.
Hartley, ed., Taylor & Francis, Bristol, PA, pp. 133-150, 1995.
Stephenson, B., ATA, email to Tom Yager, FMCSA, September 8, 2010.
FMCSA-2004-19608-4026.
Tucker, P., ``The Impact of Rest Breaks Upon Accident Risk, Fatigue
and Performance: A Review,'' Work & Stress, Vol. 17, No. 2, April-
June 2003, pp. 123-137.
U.S. Census Bureau, ``Truck Transportation, Messenger Services, and
Warehousing--NAICS 48/49: Estimated Revenues, Sources of Revenue,
and Expenses for Employer Firms,'' data tables 2.1 through 2.11,
2001 through 2009. Retrieved June 14, 2011, from: http://www2.census.gov/services/sas/data/48/2009_NAICS48.pdf,
(2009NAICS48).
U.S. Census Bureau, ``2007 NAICS [North American Industry
Classification System] Definitions 484 Truck Transportation,'' 2008.
FMCSA-2004-19608-4066.
U.S. Department of Agriculture, Economic Research Service, ``Food
Dollar Series: Food Dollar Applicaton.'' Retrieved April 13, 2011,
from: www.ers.usda.gov/DATA/FoodDollar/app.
Van Cauter, E., & Knutson, K., ``Sleep and the Epidemic of Obesity
in Children and Adults,'' European Journal of Endocrinology, Vol.
159, 2008, pp. S59-66. FMCSA-2004-19608-3991.
Van Dongen, H.P.A., Belenky, G., & Vila, B.J., ``The Efficacy of a
Restart Break for Recycling with Optimal Performance Depends
Critically on Circadian Timing,'' Sleep, Vol. 34, No. 7, July 1,
2011, pp. 917-929.
Van Dongen, H.P.A., & Belenky, G., ``Investigation into Motor
Carrier Practices to Achieve Optimal Commercial Motor Vehicle Driver
Performance: Phase I,'' December 2010. FMCSA-2004-19608-4120 [Van
Dongen (2010a)].
Van Dongen, H.P.A., & Dinges, D.F., ``Circadian Rhythms in
Sleepiness, Alertness, and Performance,'' Principles and Practice of
Sleep Medicine 4th Ed., M.H. Kryger, T. Roth, and W.C. Dement, eds.,
2005, pp. 435-443.
Van Dongen, H.P.A., Jackson, M.L., and Belenky, G., ``Duration of
Restart Period Needed to Recycle with Optimal Performance: Phase
II.'' FMCSA, December 2010. FMCSA-2004-19608-4121 [Van Dongen
(2010b)].
Van Dongen, H.P.A., Maislin, G., Mullington, J.M., & Dinges, D.F.,
``The Cumulative Cost of Additional Wakefulness: Dose-Response
Effects on Neurobehavioral Functions and Sleep Physiology from
Chronic Sleep Restriction and Total Sleep Deprivation,'' Sleep, Vol.
26, No. 2, March 15, 2003, pp. 117-126. FMCSA-2004-19608-2072 (and
3993).
Washington State University (WSU) Study, see Van Dongen, et al.,
December 2010 and July 2011.
Wiegand, D.M., Hanowski, R.J., & McDonald, S.E., ``Commercial
Drivers' Health: A Naturalistic Study of Body Mass Index, Fatigue,
and Involvement in Safety-Critical Events,'' Traffic Injury
Prevention, Vol. 10, No. 6, December 2009, pp. 573-579. FMCSA-2004-
19608-3994.
Zaloshnja, E., & Miller, T., ``Unit Costs of Medium and Heavy Truck
Crashes,'' March 2007. FMCSA 2004-19608-3995.
List of Subjects
49 CFR Part 385
Administrative practice and procedure, Highway safety, Mexico,
Motor carriers, Motor vehicle safety, Reporting and recordkeeping
requirements.
49 CFR Part 386
Administrative practice and procedure, Brokers, Freight forwarders,
[[Page 81186]]
Hazardous materials transportation, Highway safety, Motor carriers,
Motor vehicle safety, Penalties.
49 CFR Part 390
Highway safety, Intermodal transportation, Motor carriers, Motor
vehicle safety, Reporting and recordkeeping requirements.
49 CFR Part 395
Highway safety, Motor carriers, Reporting and recordkeeping
requirements.
In consideration of the foregoing, FMCSA is amending 49 CFR chapter
III, parts 385, 386, 390, and 395 as set forth below:
PART 385--SAFETY FITNESS PROCEDURE
0
1. The authority citation continues to read as follows:
Authority: 49 U.S.C. 113, 504, 521(b), 5105(e), 5109, 13901-
13905, 31133, 31135, 31136, 31137(a), 31144, 31148, and 31502; Sec.
113(a), Pub. L. 103-311; Sec. 408, Pub. L. 104-88; Sec. 350, Pub. L.
107-87; and 49 CFR 1.73.
0
2. Amend Appendix B to part 385, section VII, List of Acute and
Critical Regulations, as follows:
0
a. Revise the entries for Sec. 395.3(a)(1) and Sec. 395.3(a)(2);
0
b. Add entries for Sec. 395.3(a)(3)(i) and Sec. 395.3(a)(3)(ii), in
numerical order; and
0
c. Remove the entries for Sec. 395.3(c)(1) and Sec. 395.3(c)(2).
Appendix B to Part 385--Explanation of Safety Rating Process
* * * * *
Sec. 395.3(a)(1) Requiring or permitting a property-carrying
commercial motor vehicle driver to drive without taking an off-duty
period of at least 10 consecutive hours prior to driving (critical).
Sec. 395.3(a)(2) Requiring or permitting a property-carrying
commercial motor vehicle driver to drive after the end of the 14th
hour after coming on duty (critical).
Sec. 395.3(a)(3)(i) Requiring or permitting a property-carrying
commercial motor vehicle driver to drive more than 11 hours
(critical).
Sec. 395.3(a)(3)(ii) Requiring or permitting a property-
carrying commercial motor vehicle driver to drive if more than 8
hours have passed since the end of the driver's last off-duty or
sleeper-berth period of at least 30 minutes (critical).
* * * * *
PART 386--RULES OF PRACTICE FOR MOTOR CARRIER, INTERMODAL EQUIPMENT
PROVIDER, BROKER, FREIGHT FORWARDER, AND HAZARDOUS MATERIALS
PROCEEDINGS
0
3. The authority citation for part 386 continues to read as follows:
Authority: 49 U.S.C. 113, chapters 5, 51, 59, 131-141, 145-149,
311, 313, and 315; Sec. 204, Pub. L. 104-88, 109 Stat. 803, 941 (49
U.S.C. 701 note); Sec. 217, Pub. L. 105-159, 113 Stat. 1748, 1767;
Sec. 206, Pub. L. 106-159, 113 Stat. 1763; subtitle B, title IV of
Pub. L. 109-59; and 49 CFR 1.45 and 1.73.
0
4. Amend Appendix B to part 386 by adding paragraph (a)(6) to read as
follows:
Appendix B to Part 386--Penalty Schedule; Violations and Monetary
Penalties
* * * * *
(a) * * *
(6) Egregious violations of driving-time limits in 49 CFR part
395. A driver who exceeds, and a motor carrier that requires or
permits a driver to exceed, by more than 3 hours the driving-time
limit in 49 CFR 395.3(a) or 395.5(a), as applicable, shall be deemed
to have committed an egregious driving-time limit violation. In
instances of an egregious driving-time violation, the Agency will
consider the ``gravity of the violation,'' for purposes of 49 U.S.C.
521(b)(2)(D), sufficient to warrant imposition of penalties up to
the maximum permitted by law.
* * * * *
PART 390--FEDERAL MOTOR CARRIER SAFETY REGULATIONS; GENERAL
0
5. The authority citation for part 390 continues to read as follows:
Authority: 49 U.S.C. 504, 508, 31132, 31133, 31136, 31144,
31151, 31502; sec. 114, Pub. L. 103-311, 108 Stat. 1673, 1677-1678;
sec. 212 and 217, Pub. L. 106-159 (as transferred by sec. 4115 and
amended by secs. 4130-4132, Pub. L. 109-59, 119 Stat. 1144, 1726,
1743-1744); sec. 4136, Pub. L. 109-59, 119 Stat. 1144, 1745 and 49
CFR 1.73.
0
6. Amend Sec. 390.23 by revising paragraph (c) to read as follows:
Sec. 390.23 Relief from regulations.
* * * * *
(c) When the driver has been relieved of all duty and
responsibilities upon termination of direct assistance to a regional or
local emergency relief effort, no motor carrier shall permit or require
any driver used by it to drive nor shall any such driver drive in
commerce until the driver has met the requirements of Sec. Sec.
395.3(a) and (c) and 395.5(a) of this chapter.
PART 395--HOURS OF SERVICE OF DRIVERS
0
7. The authority citation for part 395 continues to read as follows:
Authority: 49 U.S.C. 504, 31133, 31136, 31137, and 31502; sec.
113, Pub. L. 103-311, 108 Stat. 1673, 1676; sec. 229, Pub. L. 106-
159 (as transferred by sec. 4115 and amended by secs. 4130-4132,
Pub. L. 109-59, 119 Stat. 1144, 1726, 1743, 1744); sec. 4133, Pub.
L. 109-59, 119 Stat. 1144, 1744; sec. 108, Pub. L. 110-432. 122
Stat. 4860-4866; and 49 CFR 1.73.
0
8. Amend Sec. 395.1 as follows:
0
a. Revise the paragraph (b) heading and paragraph (b)(1) introductory
text;
0
b. Revise pargraph (d)(2);
0
c. Revise paragraphs (e)(1)(iv) and (e)(2);
0
d. Revise paragraphs (g)(1)and (g)(2)(ii); and
0
e. Revise paragraph (q).
The revisions read as follows:
Sec. 395.1 Scope of rules in this part.
* * * * *
(b) Driving conditions. (1) Adverse driving conditions. Except as
provided in paragraph (h)(2) of this section, a driver who encounters
adverse driving conditions, as defined in Sec. 395.2, and cannot,
because of those conditions, safely complete the run within the maximum
driving time permitted by Sec. Sec. 395.3(a) or 395.5(a) may drive and
be permitted or required to drive a commercial motor vehicle for not
more than 2 additional hours beyond the maximum time allowed under
Sec. Sec. 395.3(a) or 395.5(a) to complete that run or to reach a
place offering safety for the occupants of the commercial motor vehicle
and security for the commercial motor vehicle and its cargo.
* * * * *
(d) * * *
(2) In the case of specially trained drivers of commercial motor
vehicles that are specially constructed to service oil wells, on-duty
time shall not include waiting time at a natural gas or oil well site.
Such waiting time shall be recorded as ``off duty'' for purposes of
Sec. Sec. 395.8 and 395.15, with remarks or annotations to indicate
the specific off-duty periods that are waiting time, or on a separate
``waiting time'' line on the record of duty status to show that off-
duty time is also waiting time. Waiting time shall not be included in
calculating the 14-hour period in Sec. 395.3(a)(2). Specially trained
drivers of such commercial motor vehicles are not eligible to use the
provisions of Sec. 395.1(e)(1).
(e) * * *
(1) * * *
(iv)(A) A property-carrying commercial motor vehicle driver does
[[Page 81187]]
not exceed the maximum driving time specified in Sec. 395.3(a)(3)
following 10 consecutive hours off duty; or
(B) A passenger-carrying commercial motor vehicle driver does not
exceed 10 hours maximum driving time following 8 consecutive hours off
duty; and
* * * * *
(2) Operators of property-carrying commercial motor vehicles not
requiring a commercial driver's license. Except as provided in this
paragraph, a driver is exempt from the requirements of Sec.
395.3(a)(2) and Sec. 395.8 and ineligible to use the provisions of
Sec. 395.1(e)(1), (g), and (o) if:
(i) The driver operates a property-carrying commercial motor
vehicle for which a commercial driver's license is not required under
part 383 of this subchapter;
(ii) The driver operates within a 150 air-mile radius of the
location where the driver reports to and is released from work, i.e.,
the normal work reporting location;
(iii) The driver returns to the normal work reporting location at
the end of each duty tour;
(iv) The driver does not drive:
(A) After the 14th hour after coming on duty on 5 days of any
period of 7 consecutive days; and
(B) After the 16th hour after coming on duty on 2 days of any
period of 7 consecutive days;
(v) The motor carrier that employs the driver maintains and retains
for a period of 6 months accurate and true time records showing:
(A) The time the driver reports for duty each day;
(B) The total number of hours the driver is on duty each day;
(C) The time the driver is released from duty each day;
(D) The total time for the preceding 7 days in accordance with
Sec. 395.8(j)(2) for drivers used for the first time or
intermittently.
* * * * *
(g) * * *
(1) Property-carrying commercial motor vehicle. (i) In General. A
driver who operates a property-carrying commercial motor vehicle
equipped with a sleeper berth, as defined in Sec. Sec. 395.2 and
393.76 of this subchapter,
(A) Must, before driving, accumulate
(1) At least 10 consecutive hours off duty;
(2) At least 10 consecutive hours of sleeper-berth time;
(3) A combination of consecutive sleeper-berth and off-duty time
amounting to at least 10 hours; or
(4) The equivalent of at least 10 consecutive hours off duty if the
driver does not comply with paragraph (g)(1)(i)(A)(1), (2), or (3) of
this section;
(B) May not drive more than the driving limit specified in Sec.
395.3(a)(3)(i) following one of the 10-hour off-duty periods specified
in paragraph (g)(1)(i)(A)(1) through (4) of this section. After June
30, 2013, however, driving is permitted only if 8 hours or fewer have
passed since the end of the driver's last off-duty break or sleeper-
berth period of at least 30 minutes; and
(C) May not drive for more than the period specified in Sec.
395.3(a)(2) after coming on duty following one of the 10-hour off-duty
periods specified in paragraph (g)(1)(i)(A)(1)-(4) of this section; and
(D) Must exclude from the calculation of the 14-hour period in
Sec. 395.3(a)(2) any sleeper-berth period of at least 8 but less than
10 consecutive hours.
(ii) Specific requirements. The following rules apply in
determining compliance with paragraph (g)(1)(i) of this section:
(A) The term ``equivalent of at least 10 consecutive hours off
duty'' means a period of
(1) At least 8 but less than 10 consecutive hours in a sleeper
berth, and
(2) A separate period of at least 2 but less than 10 consecutive
hours either in the sleeper berth or off duty, or any combination
thereof.
(B) Calculation of the driving limit includes all driving time;
compliance must be re-calculated from the end of the first of the two
periods used to comply with paragraph (g)(1)(ii)(A) of this section.
(C) Calculation of the 14-hour period in Sec. 395.3(a)(2) includes
all time except any sleeper-berth period of at least 8 but less than 10
consecutive hours and up to 2 hours riding in the passenger seat of a
property-carrying vehicle moving on the highway immediately before or
after a period of at least 8 but less than 10 consecutive hours in the
sleeper berth; compliance must be re-calculated from the end of the
first of the two periods used to comply with the requirements of
paragraph (g)(1)(ii)(A) of this section.
(2) * * *
(ii) The driving time in the period immediately before and after
each rest period, when added together, does not exceed the limit
specified in Sec. 395.3(a)(3);
* * * * *
(q) Attendance on commercial motor vehicles containing Division
1.1, 1.2, or 1.3 explosives. Operators who are required by 49 CFR 397.5
to be in attendance on commercial motor vehicles containing Division
1.1, 1.2, or 1.3 explosives are on duty at all times while performing
attendance functions or any other work for a motor carrier. Operators
of commercial motor vehicles containing Division 1.1, 1.2, or 1.3
explosives subject to the requirements for a 30-minute rest break in
Sec. 395.3(a)(3)(ii) may use 30 minutes or more of attendance time to
meet the requirement for a rest break, providing they perform no other
work during the break. Such drivers must record the rest break as on-
duty time in their record of duty status with remarks or annotations to
indicate the specific on-duty periods that are used to meet the
requirement for break.
* * * * *
0
9. Amend Sec. 395.2 by revising the definition of ``on-duty time'' to
read as follows:
Sec. 395.2 Definitions.
* * * * *
On-duty time means all time from the time a driver begins to work
or is required to be in readiness to work until the time the driver is
relieved from work and all responsibility for performing work. On-duty
time shall include:
(1) All time at a plant, terminal, facility, or other property of a
motor carrier or shipper, or on any public property, waiting to be
dispatched, unless the driver has been relieved from duty by the motor
carrier;
(2) All time inspecting, servicing, or conditioning any commercial
motor vehicle at any time;
(3) All driving time as defined in the term driving time;
(4) All time in or on a commercial motor vehicle, other than:
(i) Time spent resting in or on a parked vehicle, except as
otherwise provided in Sec. 397.5 of this subchapter;
(ii) Time spent resting in a sleeper berth; or
(iii) Up to 2 hours riding in the passenger seat of a property-
carrying vehicle moving on the highway immediately before or after a
period of at least 8 consecutive hours in the sleeper berth;
(5) All time loading or unloading a commercial motor vehicle,
supervising, or assisting in the loading or unloading, attending a
commercial motor vehicle being loaded or unloaded, remaining in
readiness to operate the commercial motor vehicle, or in giving or
receiving receipts for shipments loaded or unloaded;
(6) All time repairing, obtaining assistance, or remaining in
attendance upon a disabled commercial motor vehicle;
[[Page 81188]]
(7) All time spent providing a breath sample or urine specimen,
including travel time to and from the collection site, to comply with
the random, reasonable suspicion, post-crash, or follow-up testing
required by part 382 of this subchapter when directed by a motor
carrier;
(8) Performing any other work in the capacity, employ, or service
of, a motor carrier; and
(9) Performing any compensated work for a person who is not a motor
carrier.
* * * * *
0
10. Revise Sec. 395.3 to read as follows:
Sec. 395.3 Maximum driving time for property-carrying vehicles.
(a) Except as otherwise provided in Sec. 395.1, no motor carrier
shall permit or require any driver used by it to drive a property-
carrying commercial motor vehicle, nor shall any such driver drive a
property-carrying commercial motor vehicle, regardless of the number of
motor carriers using the driver's services, unless the driver complies
with the following requirements:
(1) Start of work shift. A driver may not drive without first
taking 10 consecutive hours off duty;
(2) 14-hour period. A driver may drive only during a period of 14
consecutive hours after coming on duty following 10 consecutive hours
off duty. The driver may not drive after the end of the 14-consecutive-
hour period without first taking 10 consecutive hours off duty.
(3) Driving time and rest breaks. (i) Driving time. A driver may
drive a total of 11 hours during the 14-hour period specified in
paragraph (a)(2) of this section.
(ii) Rest breaks. After June 30, 2013, driving is not permitted if
more than 8 hours have passed since the end of the driver's last off-
duty or sleeper-berth period of at least 30 minutes.
(b) No motor carrier shall permit or require a driver of a
property-carrying commercial motor vehicle to drive, nor shall any
driver drive a property-carrying commercial motor vehicle, regardless
of the number of motor carriers using the driver's services, for any
period after--
(1) Having been on duty 60 hours in any period of 7 consecutive
days if the employing motor carrier does not operate commercial motor
vehicles every day of the week; or
(2) Having been on duty 70 hours in any period of 8 consecutive
days if the employing motor carrier operates commercial motor vehicles
every day of the week.
(c)(1) Through June 30, 2013, any period of 7 consecutive days may
end with the beginning of an off-duty period of 34 or more consecutive
hours. After June 30, 2013, any period of 7 consecutive days may end
with the beginning of an off-duty period of 34 or more consecutive
hours that includes two periods from 1 a.m. to 5 a.m.
(2) Through June 30, 2013, any period of 8 consecutive days may end
with the beginning of an off-duty period of 34 or more consecutive
hours. After June 30, 2013, any period of 8 consecutive days may end
with the beginning of an off-duty period of 34 or more consecutive
hours that includes two periods from 1 a.m. to 5 a.m.
(d) After June 30, 2013, a driver may not take an off-duty period
allowed by paragraph (c) of this section to restart the calculation of
60 hours in 7 consecutive days or 70 hours in 8 consecutive days until
168 or more consecutive hours have passed since the beginning of the
last such off-duty period. When a driver takes more than one off-duty
period of 34 or more consecutive hours within a period of 168
consecutive hours, he or she must indicate in the Remarks section of
the record of duty status which such off-duty period is being used to
restart the calculation of 60 hours in 7 consecutive days or 70 hours
in 8 consecutive days.
Issued on: December 16, 2011.
Anne S. Ferro,
Administrator.
[FR Doc. 2011-32696 Filed 12-23-11; 8:45 am]
BILLING CODE 4910-EX-P