82170 Federal Register / Vol. 75, No. 249 / Wednesday, December 29, 2010 / Proposed Rules 

DEPARTMENT OF TRANSPORTATION 

Federal Motor Carrier Safety 

Administration 

49 CFR Parts 385, 386, 390, and 395 

[Docket No. FMCSA–2004–19608] 

RIN 2126–AB26 

Hours of Service of Drivers 

AGENCY: Federal Motor Carrier Safety 

Administration (FMCSA), DOT. 

ACTION: Notice of proposed rulemaking. 

SUMMARY: To promote safety and to 

protect driver health, FMCSA proposes 

to revise the regulations for hours of 

service for drivers of property-carrying 

commercial motor vehicles (CMVs). To 

achieve these goals, the proposed rule 

would provide flexibility for drivers to 

take breaks when needed and would 

reduce safety and health risks associated 

with long hours. The proposed rule 

would make seven changes from current 

requirements. First, the proposed rule 

would limit drivers to either 10 or 11 

hours of driving time following a period 

of at least 10 consecutive hours off duty; 

on the basis of all relevant 

considerations, FMCSA currently favors 

a 10-hour limit, but its ultimate decision 

will include a careful consideration of 

comments and any additional data 

received. Second, it would limit the 

standard ‘‘driving window’’ to 14 hours, 

while allowing that number to be 

extended to 16 hours twice a week. 

Third, actual duty time within the 

driving window would be limited to 13 

hours. Fourth, drivers would be 

permitted to drive only if 7 hours or less 

have passed since their last off-duty or 

sleeper-berth period of at least 30 

minutes. Fifth, the 34-hour restart 

would be retained, subject to certain 

limits: The restart would have to 

include two periods between midnight 

and 6 a.m. and could be started no 

sooner than 168 hours (7 days) after the 

beginning of the previously designated 

restart. Sixth, the definition of ‘‘on duty’’ 

would be revised to allow some time 

spent in or on the CMV to be logged as 

off duty. Seventh, the oilfield operations 

exception would be revised to clarify 

the language on waiting time and to 

state that waiting time would not be 

included in the calculation of the 

driving window. 

DATES: You may submit comments by 

February 28, 2011. 

ADDRESSES: You may submit comments, 

identified by docket number FMCSA– 

2004–19608 or RIN 2126–AB26, by any 

of the following methods: 

• Federal eRulemaking Portal: http:// 

www.regulations.gov. 

• Fax: 202–493–2251. 

• Mail: Docket Management Facility 

(M–30), U.S. Department of 

Transportation, West Building Ground 

Floor, Room W12–140, 1200 New Jersey 

Avenue, SE., Washington, DC 20590– 

0001. 

• Hand delivery: Same as mail 

address above, between 9 a.m. and 5 

p.m., Monday through Friday, except 

Federal holidays. The telephone number 

is 202–366–9329. 

To avoid duplication, please use only 

one of these four methods. See the 

‘‘Public Participation and Request for 

Comments’’ portion of the 

SUPPLEMENTARY INFORMATION section 

below for instructions on submitting 

comments. 

FOR FURTHER INFORMATION CONTACT: 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. Public Participation and Request for 

Comments 

A. Submitting Comments 

B. Viewing Comments and Documents 

C. Privacy Act 

II. Overview 

III. Legal Basis 

IV. Background 

A. History 

B. Process 

C. Description of Industry 

V. Agency Goals 

A. Safety—Fatigue 

B. Driver Health 

CVD 

C. Flexibility 

VI. Discussion of Proposed Rule 

A. Driving Time 

B. Breaks 

C. Duty Time/Driving Window 

D. Restart and Weekly Limits 

E. Sleeper Berth 

F. Other Issues 

VII. Section-by-Section Analysis 

VIII. Required Analyses 

A. Executive Order 12866 

B. Regulatory Flexibility Act 

1. A Description of the Reasons why 

Action by the Agency Is Being 

Considered 

2. A Succinct Statement of the Objectives 

of, and Legal Basis for, the Proposed 

Rule 

3. A Description of and, where Feasible, an 

Estimate of the Number of Affected 

Small Entities to which the Proposed 

Rule Will Apply 

4. Discussion of the Impact on Affected 

Small Entities 

5. A Description of the Projected Reporting, 

Recordkeeping, and Other Compliance 

Requirements of the Proposed Rule, 

Including an Estimate of the Classes of 

Small Entities which will be Subject to 

the Requirement and the Type of 

Professional Skills Necessary for the 

Preparation of the Report or Record 

6. An Identification, to the Extent 

Practicable, of all Relevant Federal Rules 

which may Duplicate, Overlap, or 

Conflict with this Proposal 

7. A Description of any Significant 

Alternatives to the Proposed Rule which 

Minimize any Significant Impact on 

Small Entities 

C. Paperwork Reduction Act 

D. National Environmental Policy Act 

E. Executive Order 13132 (Federalism) 

F. Privacy Impact Assessment 

G. Executive Order 12630 (Taking of 

Private Property) 

H. Executive Order 12988 (Civil Justice 

Reform) 

I. Executive Order 13045 (Protection of 

Children) 

J. Executive Order 13211 (Energy Supply, 

Distribution, or Use) 

K. Executive Order 12898 (Environmental 

Justice) 

L. Unfunded Mandate Reform Act 

I. Public Participation and Request for 

Comments 

FMCSA encourages you to participate 

in this rulemaking by submitting 

comments, data, and related materials. 

All comments received will be posted 

without change to http:// 

www.regulations.gov and will include 

any personal information you provide. 

A. Submitting Comments 

If you submit a comment, please 

include the docket number for this 

rulemaking (FMCSA–2004–19608), 

indicate the specific section of this 

document to which each comment 

applies, and provide a reason for each 

suggestion or recommendation. You 

may submit your comments and 

material online or by fax, mail, or hand 

delivery, but please use only one of 

these means. FMCSA recommends that 

you include your name and a mailing 

address, an e-mail address, or a phone 

number in the body of your document 

so that FMCSA can contact you if there 

are questions regarding your 

submission. However, see the Privacy 

Act section below regarding availability 

of this information to the public. 

To submit your comment online, go to 

http://www.regulations.gov and click on 

the ‘‘submit a comment’’ box, which will 

then become highlighted in blue. In the 

‘‘Document Type’’ drop down menu, 

select ‘‘Proposed Rules,’’ insert 

‘‘FMCSA–2004–19608’’ in the 

‘‘Keyword’’ box, and click ‘‘Search.’’ 

When the new screen appears, click on 

‘‘Submit a Comment’’ in the ‘‘Actions’’ 

column. If you submit your comments 

by mail or hand delivery, submit them 


emcdonald on DSK2BSOYB1PROD with PROPOSALS2
Federal Register / Vol. 75, No. 249 / Wednesday, December 29, 2010 / Proposed Rules 82171 

in an unbound format, no larger than 8 

1⁄2 by 11 inches, suitable for copying 

and electronic filing. If you submit 

comments by mail and would like to 

know that they reached the facility, 

please enclose a stamped, self-addressed 

postcard or envelope. 

FMCSA will consider all comments 

and material received during the 

comment period and may change this 

proposed rule based on your comments. 

B. Viewing Comments and Documents 

All public comments, as well as 

documents mentioned in this notice, are 

available in the public docket. To view 

them, go to http://www.regulations.gov 

and click on the ‘‘read comments’’ box 

in the upper right hand side of the 

screen. Then, in the ‘‘Keyword’’ box 

insert ‘‘FMCSA–2004–19608’’ and click 

‘‘Search.’’ Next, click the ‘‘Open Docket 

Folder’’ in the ‘‘Actions’’ column. 

Finally, in the ‘‘Title’’ column, click on 

the document you would like to review. 

If you do not have access to the Internet, 

you may view the docket online by 

visiting the Docket Management Facility 

in Room W12–140 on the ground floor 

of the Department of Transportation 

West Building, 1200 New Jersey 

Avenue, SE., Washington, DC 20590, 

between 9 a.m. and 5 p.m., Monday 

through Friday, except Federal holidays. 

C. Privacy Act 

Anyone may search the electronic 

form of comments received into any of 

our dockets by the name of the 

individual submitting the comment (or 

signing the comment, if submitted on 

behalf of an association, business, labor 

union, etc.). You may review 

Department of Transportation’s (DOT) 

Privacy Act Statement for the Federal 

Docket Management System published 

in the Federal Register on January 17, 

2008 (73 FR 3316), or you may visit 

http://edocket.access.gpo.gov/2008/pdf/ 

E8-785.pdf. 

II. Overview 

Goals. The goal of this HOS proposed 

rule is to improve safety while ensuring 

that the requirements would not have an 

adverse impact on driver health. The 

proposed rule also would provide 

drivers with the flexibility to obtain rest 

when they need it and to adjust their 

schedules to account for unanticipated 

delays. FMCSA has also attempted to 

make the proposed rule easy to 

understand and readily enforceable. 

Admittedly, design of HOS rules 

raises conceptual and empirical 

challenges. The impact of such rules on 

CMV safety is difficult to separate from 

the many other factors that affect heavyvehicle crashes. The 2008 FMCSA final 

rule on HOS noted that ‘‘FMCSA has 

consistently been cautious about 

inferring causal relationships between 

the HOS requirements and trends in 

overall motor carrier safety. The Agency 

believes that the data show no decline 

in highway safety since the 

implementation of the 2003 rule and its 

re-adoption in the 2005 rule and the 

2007 [interim final rule]’’ (73 FR 69567, 

69572, November 19, 2008). While that 

statement remains correct, the total 

number of crashes, though declining, is 

still unacceptably high. Moreover, the 

source of the decline in crashes is 

unclear. 

FMCSA believes that the HOS 

regulations proposed today, coupled 

with the Agency’s many other safety 

initiatives and assisted by the actions of 

an increasingly safety-conscious motor 

carrier industry, would result in a 

significant improvement in safety. We 

note as well that the proposed rule is 

intended to protect drivers from the 

serious health problems associated with 

excessively long work hours, without 

significantly compromising their ability 

to do their jobs and earn a living. 

Summary of the Proposed Rule. The 

proposed rule would change the 

existing HOS regulations in a number of 

ways. The required off-duty period 

would remain at a minimum of 10 

consecutive hours. Driving time 

between two such periods could either 

be 10 hours, as it was prior to the 2003 

rule (68 FR 22455; April 28, 2003), or 

11 hours. While the 10-hour rule is 

currently FMCSA’s currently preferred 

option, the Agency discusses both 

alternatives in detail below. The driving 

window would remain, on most days, at 

14 consecutive hours after coming on 

duty following a break of at least 10 

hours; but a driver would be permitted 

to be on duty for only 13 hours of that 

time as opposed to the current 14 hours. 

A driver would also be required to be 

released from duty at the end of the 14- 

hour period. To provide drivers with the 

ability to rest, if needed, or to respond 

to unanticipated conditions, twice a 

week, drivers would be allowed to 

extend the driving window to 16 hours. 

Extending the driving window, 

however, would not increase either 

driving or on-duty time. As a 

consequence of the 13-hour on-duty 

limit, a driver using the extension 

would need to take up to 3 hours off 

duty during that duty day. A driver 

would be required to go off duty at the 

end of the 16-hour driving window. 

To prevent excessive hours of 

continuous driving, the proposed rule 

would permit drivers to drive only if 7 

hours or less have passed since the 

driver’s last off-duty or sleeper-berth 

period of at least 30 minutes. For 

example, if a driver began driving 

immediately after coming on duty, he or 

she could drive until the 7th hour. 

However, because the required breaks 

would be linked to time on duty, a 

driver who first worked 3 hours at a 

terminal and then began driving would 

have to take a half-hour (or longer) break 

no later than the end of the 4th hour of 

driving (i.e., the 7th hour on duty). The 

proposed rule would give drivers great 

flexibility in scheduling their breaks. If 

someone began driving immediately 

after coming on duty and took an early 

break between hours 2.5 and 3.0, he or 

she could drive 7 consecutive hours 

before reaching the 10-hour limit. If the 

11-hour driving-time limit was adopted, 

the early break would have to occur 

between hours 3.5 and 4.0 to allow 7 

consecutive hours of driving before 

reaching the end of the 11th hour. 

Conversely, a driver could drive until 

the 7th hour before taking the break, 

whether the daily limit was 10 or 11 

hours. Assuming that truckers do 

nothing but drive (which is unrealistic) 

and want to minimize their breaks, they 

could take the required half-hour break 

anywhere between hours 2.5 and 7 of a 

10-hour driving period or between 

hours 3.5 and 7 of an 11-hour driving 

period. Working beyond the 7th hour 

without a break is permitted, however, 

as long as the driver does not actually 

drive a CMV after the 7th hour. In 

practice, a driver who took a half-hour 

break at 6 to 7 hours after coming on 

duty would not be required to take a 

second break during the driving 

window of 14 hours. 

The weekly limits in the current rule 

(60 hours on duty in 7 days or 70 hours 

on duty in 8 days) would remain 

unchanged. The 34-hour restart allowed 

under the current rule, which permits 

drivers to restart the 60- or 70-hour 

‘‘clock’’ by taking a break of at least 34 

consecutive hours off duty, would be 

retained, but with certain limitations. 

First, any restart would have to include 

two periods between midnight and 6 

a.m. Depending on when the restart 

begins, 34 consecutive hours off duty 

could satisfy this requirement. In other 

instances, the restart period would have 

to be longer to incorporate the two 

nights. The two-night requirement 

would have no impact on the majority 

of drivers who regularly drive during 

the day. Drivers who regularly drive at 

night would have to take longer restarts 

to obtain two nights of sleep. Second, a 

driver would be allowed to begin 

another 34-hour off-duty period no 

sooner than 168 hours (7 days) after the 

beginning of the previous restart. 


emcdonald on DSK2BSOYB1PROD with PROPOSALS2
82172 Federal Register / Vol. 75, No. 249 / Wednesday, December 29, 2010 / Proposed Rules 

Limiting the restart to once in 7 days 

effectively reduces the number of hours 

a driver could be on duty and drive 

from an average of about 82 hours in 7 

days under the current rule to an 

average of 70 hours. Third, the driver 

would have to designate whether a 

period of 34 hours or more off duty was 

to be considered a restart. 

FMCSA is not proposing any changes 

to the sleeper-berth rule at this time. 

Drivers using the current rule must take 

at least 8, but less than 10, consecutive 

hours in the sleeper berth and a shorter 

break of at least 2 hours off duty or in 

the sleeper berth (in lieu of the standard 

10 consecutive hours off duty). The 

shorter of the breaks used under the 

sleeper berth rule is included in the 

calculation of the driving window. The 

use of the sleeper berth rule, however, 

would be affected by the other changes 

proposed. The driving window would 

be 14 to 16 hours long; duty time would 

be limited to 13 hours. A driver using 

the 16-hour window could count the 

shorter period toward the 3 hours of 

breaks that the driver would have to 

take to reach 16 hours; the shorter 

period, therefore, would not reduce the 

13 hours of on-duty time. When the 

driver uses the 14-hour window, the 

shorter break will reduce the 13-hour 

on-duty time by at least 1 hour. 

FMCSA proposes to change the 

definition of ‘‘on duty’’ to allow team 

drivers to log as off duty up to 2 hours 

spent in the passenger seat immediately 

before or after a period of 8 or more 

hours in the sleeper berth while the 

other team member is driving. FMCSA 

is also proposing additional language 

that would exclude time spent resting in 

a non-moving CMV from the definition 

of ‘‘on duty’’ time. 

Finally, FMCSA is proposing to make 

drivers and motor carriers potentially 

liable for the maximum penalty 

available if they drive or permit 

someone to drive 3 or more hours over 

the 10/11-hour driving-time limit. This 

provision targets egregious violations of 

the driving-time limits. 

The Agency has attempted to 

structure these requirements to protect 

safety and health while maintaining 

industry flexibility and minimizing the 

impact on drivers working more 

reasonable schedules. Because the 

drivers who work very extensive hours 

are a relatively small minority, FMCSA 

does not anticipate that this rule would 

have significant adverse impact on the 

industry. Since the drivers who work to 

the limits of the current rule are those 

most likely to develop fatigue over the 

course of the day and week, a reduction 

in their driving hours should lead to 

reductions in fatigue-related crashes. 

Preventing these crashes and reducing 

relative crash risk overall to improve 

safety is the principal goal of the HOS 

regulations. 

Although the Agency is primarily 

concerned with highway safety, FMCSA 

anticipates an additional benefit from 

reducing allowable daily and weekly 

work hours for the drivers with highintensity schedules. Recent research 

indicates that inadequate sleep is 

associated with increases in mortality. 

This effect is believed to involve an 

increase in the propensity for workplace 

(and leisure time) accidents and in 

mortality due to an increase in the 

incidence of high blood pressure, 

diabetes, cardiovascular disease, and 

other health problems; some of these 

conditions could disqualify drivers for 

medical reasons. Since increases in 

hours worked are associated with 

decreases in hours spent sleeping, and 

truck drivers working high-intensity 

schedules get significantly less than the 

7 hours of sleep required for optimal 

mortality, cutting back on such 

schedules should reduce, to some 

extent, mortality among these drivers. 

These benefits should be counted as 

outcomes of reductions in total work 

allowed to drivers. 

TABLE 1—SUMMARY OF 10-YEAR COSTS AND BENEFITS FOR PROPOSED RULE

[Millions 2008$] 

Option 2 Option 3 Option 4 

7% Discount Rate: 

Costs ............................................................................................................................................................. $7,246 $3,662 $16,213 

Benefits ......................................................................................................................................................... 9,913 7,562 13,232 

Net Benefits .................................................................................................................................................. 2,667 3,900 (2,981) 

3% Discount Rate: 

Costs ............................................................................................................................................................. 8,748 4,394 19,639 

Benefits ......................................................................................................................................................... 12,040 9,184 16,071 

Net Benefits .................................................................................................................................................. 3,292 4,789 (3,568) 

III. Legal Basis 

This proposed rule is based on the 

authority of the Motor Carrier Act of 

1935 and the Motor Carrier Safety Act 

of 1984 (1984 Act). The Motor Carrier 

Act of 1935 provides that ‘‘The Secretary 

of Transportation may prescribe 

requirements for (1) qualifications and 

maximum hours of service of employees 

of, and safety of operation and 

equipment of, a motor carrier; and, (2) 

qualifications and maximum hours of 

service of employees of, and standards 

of equipment of, a motor private carrier, 

when needed to promote safety of 

operation’’ (Section 31502(b) of Title 49 

of the United States Code (49 U.S.C.)). 

The HOS regulations proposed today 

concern the ‘‘maximum hours of service 

of employees of * * * a motor carrier’’ 

(49 U.S.C. 31502(b)(1)) and the 

‘‘maximum hours of service of 

employees of * * * a motor private 

carrier’’ (49 U.S.C. 31502(b)(2)). The 

adoption and enforcement of such rules 

were specifically authorized by the 

Motor Carrier Act of 1935. This 

proposed rule rests on that authority. 

The 1984 Act provides concurrent 

authority to regulate drivers, motor 

carriers, and vehicle equipment. It 

requires the Secretary of Transportation 

to ‘‘prescribe regulations on commercial 

motor vehicle safety. The regulations 

shall prescribe minimum safety 

standards for commercial motor 

vehicles.’’ Although this authority is 

very broad, the 1984 Act also includes 

specific requirements: ‘‘At a minimum, 

the regulations shall ensure that (1) 

commercial motor vehicles are 

maintained, equipped, loaded, and 

operated safely; (2) the responsibilities 

imposed on operators of commercial 

motor vehicles do not impair their 

ability to operate the vehicles safely; (3) 

the physical condition of operators of 

commercial motor vehicles is adequate 

to enable them to operate the vehicles 

safely; and (4) the operation of 

commercial motor vehicles does not 

have a deleterious effect on the physical 

condition of the operators’’ (49 U.S.C. 

31136(a)). The United States Court of 

Appeals for the District of Columbia 

Circuit (DC Circuit) has said with regard 

to 49 U.S.C. 31136(a)(4) that ‘‘the statute 


emcdonald on DSK2BSOYB1PROD with PROPOSALS2
Federal Register / Vol. 75, No. 249 / Wednesday, December 29, 2010 / Proposed Rules 82173 

1Section 7(f) of the Surface Transportation 

Extension Act of 2004, Part V, Public Law 180–310; 

118 Stat. 1144. 

2 January 16, 2009, docket # FMCSA–2004– 

19608–3525.1. 

requires the agency to consider the 

impact of the rule on ‘the physical 

condition of the operators,’ not simply 

the impact of driver health on 

commercial motor vehicle safety. * * * 

It is one thing to consider whether an 

overworked driver is likely to drive less 

safely and therefore cause accidents. 

Whether overwork and sleep 

deprivation have deleterious effects on 

the physical health of the driver is quite 

another.’’ Public Citizen et al. v. FMCSA, 

374 F.3d 1209, 1217 (DC Circuit 2004). 

This proposal would improve both 

highway safety and the health of CMV 

drivers. 

This proposed rule is also based on 

the authority of the 1984 Act and 

addresses the specific mandates of 49 

U.S.C. 31136(a)(2), (3), and (4). Section 

31136(a)(1) mainly addresses the 

mechanical condition of CMVs, a 

subject not included in this rulemaking. 

To the extent that the phrase ‘‘operated 

safely’’ in paragraph (a)(1) encompasses 

safe driving, this proposed rule also 

addresses that mandate. 

Before prescribing any regulations, 

FMCSA must also consider their ‘‘costs 

and benefits’’ (49 U.S.C. 31136(c)(2)(A) 

and 31502(d)). Those factors are also 

discussed in this proposed rule. 

IV. Background 

A. History 

For drivers of CMVs, HOS have been 

regulated since December 1937 when 

the Interstate Commerce Commission 

(ICC) promulgated the first Federal HOS 

rules. The rules were revised 

significantly in 1938 and 1962. The 

1938 revision limited drivers to 10 

hours of driving in 24 hours with at 

least 8 hours off duty; drivers could be 

on duty 60 hours in 7 days or 70 hours 

in 8 days. The 1962 revision dropped 

the 24-hour requirement, effectively 

allowing drivers to drive 10 hours and 

take 8 hours off, then drive again. (See 

the May 2, 2000, notice of proposed 

rulemaking (NPRM) for a detailed 

history of the provisions (65 FR 25540)). 

The 2000 NPRM proposed a 

comprehensive revision of the HOS 

regulations in response to the ICC 

Termination Act of 1995. The new rules 

were to be science-based; the Agency 

collected relevant studies and 

completed its own comprehensive 

Commercial Motor Vehicle Driver 

Fatigue and Alertness Study, a joint 

undertaking with Canada and the 

trucking industry. FMCSA assembled an 

expert panel of recognized authorities 

on traffic safety, human factors, and 

fatigue to review the science and 

evaluate regulatory alternatives. FMCSA 

conducted eight nationwide public 

hearings on the NPRM and three 2-day 

public roundtable discussions. On April 

28, 2003, the Agency promulgated a 

final rule (68 FR 22455). 

The 2003 rule made significant 

changes in the rules for propertycarrying operations. Driving time was 

extended from 10 to 11 hours, but the 

driving window was limited to 14 

consecutive hours after coming on duty 

(as opposed to the previous 15 

cumulative on-duty hours). The daily 

rest period was extended from 8 to 10 

hours. The weekly limits were 

unchanged, but drivers were allowed to 

restart the calculation of weekly hours 

anytime they took an off-duty break of 

at least 34 consecutive hours (the 34- 

hour restart). Drivers using sleeper 

berths were allowed to accumulate the 

equivalent of 10 consecutive hours off 

in two periods, neither of which could 

be less than 2 hours. (See the 2003 final 

rule for a detailed discussion of the 

changes.) 

On June 12, 2003, Public Citizen, 

Citizens for Reliable and Safe Highways, 

and Parents Against Tired Truckers filed 

a petition to review the 2003 HOS rules 

with the DC Circuit. On July 16, 2004, 

the DC Circuit issued an opinion 

holding ‘‘that the rule is arbitrary and 

capricious [under the Administrative 

Procedure Act (APA)] because the 

agency failed to consider the impact of 

the rules on the health of drivers, a 

factor the agency must consider under 

its organic statute’’ and vacated the rule 

(Public Citizen et al. v. FMCSA, 374 

F.3d 1209, at 1216). Congress then 

directed that the 2003 regulations would 

remain in effect until the effective date 

of a new final rule addressing the issues 

raised by the Court or September 30, 

2005, whichever occurred first.1

On August 25, 2005, FMCSA 

published a final rule that addressed 

driver health issues; it also retained the 

11 hours of driving, 14-hour driving 

window, 10 hours off duty, and the 34- 

hour restart (70 FR 49978). The rule 

revised the sleeper-berth provision to 

require at least 8, but less than 10, 

consecutive hours in the sleeper berth, 

providing drivers with the opportunity 

to obtain 7 to 8 hours of uninterrupted 

sleep each day. Drivers using the sleeper 

berth exception had to take an 

additional 2 hours either off duty or in 

the sleeper berth, which is included in 

the calculation of the 14-hour driving 

window. The 2005 rule also provided an 

exception for drivers who operate 

within 150 air-miles of their work 

reporting location and who drive CMVs 

that do not require a commercial 

driver’s license (CDL) to operate. To 

enable these short-haul carriers to meet 

unusual scheduling demands, the driver 

could use a 16-hour driving window 

twice a week. (See the 2005 final rule 

for a detailed discussion of the changes 

and a discussion of driver health 

issues.) 

Public Citizen and others challenged 

the 2005 rule on several grounds, as did 

the Owner-Operator Independent 

Drivers Association (OOIDA). On July 

24, 2007, the DC Circuit rejected 

OOIDA’s arguments, which focused on 

the sleeper-berth provision, but 

accepted part of Public Citizen’s 

arguments. The DC Circuit concluded 

that FMCSA did not satisfy the APA’s 

requirements to explain its reasoning 

and provide an opportunity for notice 

and comment on portions of the 

regulatory evaluation; the Court, 

therefore, vacated the 11-hour drivingtime and 34-hour restart provisions 

(OOIDA v. FMCSA, 494 F.3d 188 (DC 

Cir. 2007)). 

FMCSA published an interim final 

rule (IFR) on December 17, 2007 (72 FR 

71247), to prevent disruption of both 

enforcement and compliance while the 

Agency responded to the issues 

identified by the Court. The IFR repromulgated both 11 hours of driving 

time and the 34-hour restart. In response 

to the Court’s findings, the preamble to 

the IFR included a detailed explanation 

of the Agency’s time-on-task 

methodology (72 FR 71252 et seq.). On 

November 19, 2008, FMCSA published 

the provisions of the IFR as a final rule 

(73 FR 69567). 

On December 18, 2008, Advocates for 

Highway and Automotive Safety, Public 

Citizen, the International Brotherhood 

of Teamsters, and the Truck Safety 

Coalitions (HOS petitioners) petitioned 

FMCSA to reconsider the research and 

crash data justifying the 11-hour driving 

rule and the 34-hour restart provision. 

FMCSA denied the petition.2 On March 

9, 2009, the HOS petitioners filed a 

petition for review of the 2008 rule in 

the DC Circuit and, on August 27, 2009, 

filed their opening brief. However, in 

October 2009, DOT, FMCSA, and the 

HOS petitioners reached a settlement 

agreement. 

Pursuant to the agreement, the 

petition for review is in abeyance 

pending FMCSA’s publication of this 

NPRM. After considering all the 

comments, FMCSA must publish a final 

rule by July 26, 2011. 


emcdonald on DSK2BSOYB1PROD with PROPOSALS2
82174 Federal Register / Vol. 75, No. 249 / Wednesday, December 29, 2010 / Proposed Rules 

3Eight new members were added to the MCSAC 

on June 8, 2010. Representatives of the Teamsters 

and the Truck Safety Coalition were among the 

groups added to the MCSAC. See http:// 

mcsac.fmcsa.dot.gov/members.htm. 

B. Process 

As part of its process for considering 

revisions to the HOS rule, FMCSA 

sought input and comments from its 

Motor Carrier Safety Advisory 

Committee (MCSAC) and from the 

public, including carriers, drivers, 

unions, safety advocacy groups, and 

others. The latter comments were 

provided at five public listening 

sessions. In addition, the HOS docket 

has been open and comments filed 

during this period have been reviewed. 

MCSAC. MCSAC was established by 

the Secretary of Transportation on 

September 8, 2006, and is charged with 

providing advice and recommendations 

to the FMCSA Administrator on motor 

carrier safety programs and regulations. 

In the fall of 2009, FMCSA asked its 

MCSAC to identify ideas and concepts 

that the Agency should consider in 

developing the HOS regulations. At the 

time, MCSAC membership was 

comprised of 15 experts from the motor 

carrier industry, safety advocates, and 

safety enforcement sectors.3 In addition, 

three organizations (Public Citizen, the 

Teamsters, and the Truck Safety 

Coalition) participated in the meetings 

as guests. MCSAC met in December 

2009 and February 2010 to discuss the 

regulations. On February 2, 2010, they 

forwarded a report to the Administrator. 

The full report is available in the Docket 

(FMCSA–2004–19608–3867). The 

committee’s principles included the 

following: 

• The rule should be simple, 

enforceable, and compliance should be 

measurable. 

• FMCSA should consider expert 

opinion, all available data, and feedback 

from HOS listening sessions. 

• FMCSA should consider the 

appropriateness (implementation vs. 

enforcement) of a one-size-fits-all 

approach. 

• Safety, not profit/productivity, 

should be considered first and foremost. 

• A guiding principle should be how 

driver health relates to the safety of the 

public. 

• FMCSA should consider total cost 

to industry. 

In the short term, MCSAC 

recommended that FMCSA consider: 

• All available valid research on all 

impacts (e.g., health), including new 

research performed since the 2008 HOS 

rule. Additionally, FMCSA should 

review studies that were not considered 

under the previous rulemakings (e.g., 

shift work studies and epidemiological 

research findings that are related to 

driver health and HOS). 

• Each incremental hour on duty and 

its effect on driver fatigue, beginning 

with the first hour. Determine whether 

there is a fatigue breakpoint (a point in 

time after which performance declines). 

• Driving schedules in light of 

circadian rhythm research and crash 

rates by time of day, while balancing the 

effects on the general public. 

• Industry safety performance data 

under the current rule (e.g., crash data, 

fatalities, injuries, compliance-related 

data, exposure data). 

• Existing data on the total cost to 

society of all fatigue-CMV crashes (not 

just fatal or injury crashes) (e.g., 

economic paralysis of section of city/ 

State to clear a CMV crash; medical care 

for those seriously injured without 

insurance; lost productivity; fuel costs; 

air pollution; costs to families of 

persons injured). 

• Current practices, research, and 

technologies within other transportation 

modes and industries regarding fatigue. 

Consider international approaches to 

HOS, including those of Canada, the 

European Union (EU), Australia, and 

Japan. For example, EU requires 

electronic logging devices with welleducated enforcement. Also, in Canada, 

drivers may ‘‘borrow’’ driving time from 

the following day while meeting a 

weekly average. 

• Allowing more flexibility with 

respect to rest breaks and driving time, 

including, but not limited to, sleeper 

berth rest breaks. 

Listening sessions. To solicit further 

information, FMCSA held five public 

listening sessions in January and March 

2009, in Washington, DC, Dallas, TX, 

Los Angeles, CA, Davenport, IA, and 

Louisville, KY. The Davenport session 

was held adjacent to a large truck stop 

and the Louisville session was held at 

the Mid-America Trucking Show to 

encourage participation by drivers. The 

sessions were webcast, and comments 

were also submitted via toll-free 

telephone lines. Approximately 300 

individuals and organizations spoke at 

the sessions. The majority of the 

speakers were drivers and carriers or 

associations representing them; most of 

the drivers who spoke were in for-hire, 

long-haul, truck-load (TL) operations. 

In general, the carriers, drivers, and 

their associations supported the existing 

rule with two exceptions. They 

supported maintaining 11 hours of 

driving time and the 34-hour restart. 

Carriers and their associations stated 

that the 11 driving hours provided 

flexibility and that some carriers had 

redesigned routes and schedules to use 

the full 11 hours; they believed that 

changing to a shorter period would be 

costly. Drivers indicated that they use 

the restart frequently; when away from 

home, they may take no more than 34 

hours off; at home, the restart is usually 

longer. Some drivers argued for a 

shorter restart (24 hours or less). 

Many, but not all, drivers objected to 

the 14-hour consecutive period, saying 

that it forced them to drive when they 

were tired because breaks were included 

in the calculation of the driving 

window. They also said that the rule 

made it difficult to avoid congestion 

because they had to drive during rush 

hours; under the pre-2003 rule, they 

could have pulled off the road and 

waited until congestion eased without 

reducing their available duty hours. 

Drivers sought more flexibility. 

Specifically, they asked FMCSA to make 

the 14-hour period cumulative (i.e., offduty time would not be included in 

calculation of the driving window) or 

allow the driving window to be 

extended to 16 or 18 hours. A few 

drivers supported the current 14-hour 

rule, stating that it prevented carriers 

and brokers from forcing them to log 

waiting time at shippers and receivers 

as off duty so they could work longer 

days. 

Many drivers and carriers objected to 

the existing sleeper berth rule that 

allows 10 hours off duty to be taken in 

two periods, one of 8 to 10 hours and 

the other of 2 or more hours, with the 

shorter period included in the 

calculation of the driving window. 

Team drivers in particular wanted the 

flexibility to be able to divide their 8- 

hour sleeper berth time into shorter 

periods (e.g., 4 + 4 hours, 5 + 3 hours, 

etc.). Drivers who spoke on this issue 

asked that the shorter period not be 

included in the calculation of the duty 

period. 

Representatives of the safety advocacy 

groups and the Teamsters generally 

supported the 14-consecutive-hour 

provision, but opposed 11 hours of 

driving and the 34-hour restart because 

these provisions allow long days of 

continuous work and work weeks up to 

84 hours in 7 days. They urged FMCSA 

to consider the body of research on the 

effects of long hours on performance 

and health and to establish a 24-hour 

circadian schedule. 

Drivers also raised several issues that 

affect them, but are outside of FMCSA’s 

statutory authority. The number of 

available areas where truck drivers can 

safely stop and rest, although never 

adequate, has been reduced in the last 

few years as some States have closed 

rest areas for budgetary reasons. Drivers 

stated that the lack of safe rest areas 


emcdonald on DSK2BSOYB1PROD with PROPOSALS2
Federal Register / Vol. 75, No. 249 / Wednesday, December 29, 2010 / Proposed Rules 82175 

4Bureau of Transportation Statistics (RITA, DOT) 

and U.S. Census Bureau, ‘‘2007 Commodity Flow 

Survey,’’ April 2010. FMCSA–2004–19608–4024. 

5Belenky, G., Wesensten, N.J., Thorne, D.R., 

Thomas, M.L., Sing, H.C., Redmond, D.P., Russo, 

M.B. & Balkin, T.J., ‘‘Patterns of Performance 

Degradation and Restoration During Sleep 

Restriction and Subsequent Recovery: A Sleep 

Dose-Response Study,’’ Journal of Sleep Research, 

Vol. 12, No. 1, March 2003, pp. 1–12. FMCSA– 

2004–19608–3959. 

Van Dongen, H.P., Maislin, G., Mullington, J.M. 

& Dinges, D.F., ‘‘The Cumulative Cost of Additional 

Wakefulness: Dose-Response Effects on 

Neurobehavioral Functions and Sleep Physiology 

Continued 

made it difficult for them to find a place 

to take their 10-hour off-duty period. A 

number of drivers also stated that the 

current methods of paying many drivers 

(by the mile or load) provide shippers 

with no incentive to load or unload a 

truck promptly. Independent owneroperators and smaller carriers 

complained that they could spend 30 to 

40 hours of unpaid time a week waiting 

for shippers. Finally, drivers stated that 

anti-idling laws adopted by some State 

and local governments to reduce 

pollution can make it difficult to sleep 

because they cannot run their air 

conditioning or heating. FMCSA 

acknowledges these complaints; but, as 

explained in previous HOS 

rulemakings, the Agency does not have 

the statutory authority to address these 

issues. 

C. Description of Industry 

The trucking industry comprises 

hundreds of thousands of carriers and 

millions of drivers moving goods locally 

or in long hauls between cities. The 

industry is diverse, and different sectors 

have different operational 

characteristics. The industry can be 

divided in a number of ways: Private 

versus for-hire; long-haul versus shorthaul; TL versus less than truckload 

(LTL). Private carriers are not trucking 

firms; they are manufacturers, 

distributors, or retailers that move their 

own goods among factories, distribution 

centers (warehouses), and retail outlets. 

Their drivers generally operate on a 

regular basis over routes set by the 

locations of their own facilities and 

those of their customers. For-hire 

carriers are in the transport business; 

they move goods for their customers. An 

LTL carrier usually picks up and 

delivers small shipments in a local area 

served by one of its terminals. 

Shipments are consolidated into loads 

for large trucks that make long runs to 

the firm’s terminals in other areas. 

Moves between terminals are almost 

always overnight on regular routes. The 

goods moved overnight are delivered 

the next day by the local drivers at the 

destination terminal. The TL carriers 

typically pick up a full load from a 

shipper and move it directly to the 

receiver of the goods. Some of their 

business is regular and predictable 

under contracts or less-formal 

agreements. Much of their business is 

almost random in nature, movements 

from one place to another being sold 

and booked on a daily basis. Drivers in 

random service may not know where 

they will be at the end of each day. 

Their runs are often made by day, but 

many also require night-time driving. 

Short-haul drivers operate within a local 

area; most are not exclusively night-time 

drivers. Their routes may vary day by 

day, but they are always in the same 

general area. They may spend a good 

part of each day loading and unloading 

at multiple locations. Although there are 

exceptions, most long-haul drivers do 

not load or unload the cargo. 

The various segments of the industry 

are affected differently by HOS 

provisions. Many short-haul drivers, 

including unionized drivers who mostly 

engage in local or LTL operations, 

operate well within all of the provisions 

of the rule. LTL firms and many private 

carriers have set their routes and 

terminals to stay within the HOS rule. 

Those who are most affected are longhaul TL carriers. According to the 2007 

Commodity Flow Survey, more than 95 

percent of the tonnage moved by private 

carriers is transported less than 250 

miles and less than 1 percent is carried 

more than 500 miles; 500 miles is about 

the maximum for a 1-day trip. About 12 

percent of the tonnage moved by forhire carriers is transported more than 

500 miles; only 4 percent is transported 

1,000 miles or more. Overall, 93 percent 

of the tonnage moved solely by truck is 

transported in trips of 500 miles or less.4

This percentage may be rising because 

a number of the largest TL carriers are 

shifting to intermodal operations, 

putting cargo on intermodal trains for 

moves that require more than a day and 

making all-truck moves only in regional 

operations. 

V. Agency Goals 

FMCSA set three primary goals as it 

developed this proposed rule. First, the 

rule provisions should improve safety 

by reducing driver fatigue in a costeffective, cost-justified manner. Second, 

the rule should ensure that the 

requirements do not have an adverse 

effect on driver health. Third, the rule 

should provide drivers with some 

flexibility in their schedules to 

encourage them to take rest breaks when 

they need them. This section discusses 

the general rationale for these goals. 

A. Safety—Fatigue 

A fundamental purpose of the HOS 

regulations is to reduce crash risk in 

order to improve safety, and as 

elaborated at length, the Agency has 

concluded that the proposed rules will 

have significant safety benefits. Ideally, 

the Agency would have data to measure 

crash risk along all of the dimensions 

for which regulations are proposed. 

Because the Agency has been not been 

able to gather such data, it has based its 

analysis, in significant part, on share of 

crashes that are fatigue-coded. The 

Agency recognizes that using share of 

crashes that are fatigue-coded could 

have two possible problems: 

a. Accident inspectors may be more likely 

to code crashes as fatigue-related if the driver 

has been on the road longer. 

b. The share of crashes that are coded as 

fatigue-related may conceivably increase 

because the share of crashes caused by other 

factors goes down. There could be no 

increase in the risk of a fatigue-related crash 

(the central question), but an increase in the 

share of fatigue-related crashes. 

Nonetheless, while the data are not as 

complete as FMCSA would like them to 

be, the Agency aimed to limit, to the 

extent possible, the likelihood that 

drivers will be fatigued, either when 

they come on duty or during or at the 

end of a working period. Fatigue affects 

performance well before a person 

becomes sleepy. As a person becomes 

fatigued, reaction times slow, 

concentration becomes more erratic, and 

decision-making is slowed; all of which 

affect the ability of a driver to respond 

quickly to a hazardous driving situation. 

Eventually fatigue reaches a point where 

the person has trouble staying awake 

and may be unable to avoid falling 

asleep. 

The fatigue that this rule addresses is 

primarily that caused by lack of 

adequate sleep (as opposed to physical 

fatigue caused by strenuous activity). A 

regulation cannot compel a driver to 

sleep when off duty. FMCSA can only 

ensure that the hours that a driver is 

allowed to work in a day and a week do 

not interfere with the opportunity to 

obtain adequate sleep if the driver 

works the maximum hours permissible. 

The studies of restricted sleep show that 

over days of mild, moderate, or severe 

sleep restriction (1) alertness and 

performance degrade as cumulative 

sleep debt rises; (2) even mild sleep 

restriction (loss of less than 1 hour of 

sleep a day) degrades performance over 

days. Seven to 8 hours of consolidated 

night-time sleep in each 24 hours 

appear to sustain performance over 

multiple days, if not longer, for most 

people.5


emcdonald on DSK2BSOYB1PROD with PROPOSALS2
82176 Federal Register / Vol. 75, No. 249 / Wednesday, December 29, 2010 / Proposed Rules 

from Chronic Sleep Restriction and Total Sleep 

Deprivation,’’ Sleep, Vol. 26, No. 2, March 15, 2003, 

pp. 117–126. FMCSA–2004–19608–3993. 

6Cohen, D. A., Wang, W., Wyatt, J. K., Kronauer, 

R. E., Dijk, D.J., Czeisler, C. A. & Klerman, E. B., 

‘‘Uncovering Residual Effects of Chronic Sleep Loss 

on Human Performance,’’ Science Translational 

Medicine, Vol. 2, Issue 14ra3, January 13, 2010. 

FMCSA–2004–19608–4021 and 4021.1. 

Balkin, T.J., Rupp, T., Picchioni, D. & Wesensten, 

N.J., ‘‘Sleep Loss and Sleepiness: Current Issues,’’ 

CHEST, Vol. 134, No. 3, September 2008, pp. 653– 

660. FMCSA–2004–19608–3956. Belenky, G., et al. 

(2003). 

7 Jarossi, L., Matteson, A. & Woodrooffe, J., 

‘‘Trucks Involved in Fatal Accidents Factbook 

2007,’’ 2010. FMCSA–2004–19608–4007. 

8FMCSA, ‘‘Large Truck Crash Causation Study 

Summary Tables,’’ 2007. Retrieved June 8, 2010, 

from: http://ai.fmcsa.dot.gov/ltccs/data/documents/ 

SummaryTables.pdf. FMCSA–2004–19608–3971. 

9National Transportation Safety Board (NTSB) 

has studied single-vehicle crashes and crashes in 

which the truck driver was killed and estimated 

that 31 percent of fatal-to-driver accidents may be 

fatigue-related. 

10FMCSA, ‘‘Large Truck and Bus Crash Facts 

2008,’’ March 2010. Retrieved June 8, 2010, from: 

http://www.fmcsa.dot.gov/facts-research/ 

LTBCF2008/Index2008LargeTruckandBusCrashFacts.aspx. 

11The 6.15 hour average was derived from all 

days on which data were collected (excluding 

vacations); the 6.28 hour average was based on only 

weeks in which there was data for all 7 days. 

12Hanowski, R.J., Hickman, J., Fumero, M.C., 

Olson, R.L. & Dingus, T.A., ‘‘The Sleep of 

Commercial Vehicle Drivers Under the 2003 Hoursof-Service Regulations,’’ Accident, Analysis and 

Prevention, Vol. 39, No. 6, November 2007, pp. 

1140–1145. FMCSA–2004–19608–3977. 

13Lauderdale, D. S., Knutson, K. L., Yan, L.L., 

Liu, K. & Rathouz, P.J., ‘‘Sleep Duration: How Well 

Do Self-Reports Reflect Objective Measures? The 

CARDIA Sleep Study,’’ Epidemiology, Vol. 19, No. 

Sleep deprivation is classified as 

acute or chronic. A person who gets 

little or no sleep for 24 hours will suffer 

from acute sleep loss; that person’s 

cognitive ability at the end of the period 

of being awake for 24 hours is 

significantly impaired. Research 

indicates that people can recover 

completely from acute sleep loss with 1 

or 2 nights of adequate sleep (7–8 

hours). A person who gets an hour or 

two less sleep per night than needed 

develops chronic sleep deprivation. 

Over 5 days, the person accumulates 5 

to 10 hours of sleep debt. Sleep research 

indicates that people who are 

chronically sleep deprived need at least 

2 nights of adequate sleep to recover. 

Depending on the level of sleep 

deprivation, individuals may stabilize at 

a lower level of performance and believe 

they have recovered, but their 

performance will deteriorate more 

rapidly across waking hours.6 Belenky, 

G., et al. (2003) concluded that this 

stabilization makes it difficult to recover 

rapidly to the same level of performance 

that existed prior to the sleep 

deprivation even when a person is able 

to obtain adequate sleep. Van Dongen, 

H.P., et al. (2003) found that chronic 

sleep restriction to 6 hours or less 

produced cognitive performance deficits 

equivalent to up to 2 nights of total 

sleep deprivation. 

The central issue that FMCSA must 

consider in developing HOS regulations 

involves the relative crash risk 

associated with each hour of driving. It 

would be valuable, for example, to 

know the crash risk in the ninth, tenth, 

and eleventh hours, and to compare that 

risk to the risk in other hours. However, 

as noted above, FMCSA needs 

additional data to estimate relative crash 

risk in each hour of driving and hence 

has decided to consider, as a proxy, how 

many hours drivers can consistently 

work over a period of time without 

becoming sleep-deprived. There are two 

approaches to answering that question. 

The Agency can examine data on 

fatigue-related crashes, and it can 

review research that measures the 

amount of sleep that drivers are getting 

under the existing rule and compare 

that to the science on sleep deprivation. 

As FMCSA discussed at length in 

previous HOS rulemakings, the 

percentage of CMV crashes associated 

with fatigue is not known. Estimates 

range from the 1.5 percent to 2.1 percent 

found in the Trucks in Fatal Accident 

(TIFA) data 7 to 13 percent in the Large 

Truck Crash Causation Study (LTCCS) 8

to even higher percentages mentioned in 

other studies.9 Because fatigue is 

difficult to determine after the fact, it is 

often not coded in crash reports, while, 

in some cases, it may be coded even 

when the driver was not fatigued 

because the driver’s log showed long 

hours at work and investigators 

assumed fatigue. It is generally believed, 

however, that fatigue-coding understates 

the level of fatigue-related crashes. In 

2008, large trucks were involved in 

approximately 365,000 recorded 

crashes, 3,700 of which involved 

fatalities, 64,000 involved injuries only, 

and 297,000 were property-damage 

only.10 Even if fatigue is a contributing 

factor in only a small percentage of 

crashes, it still has a profound safety 

impact. 

During the 2010 listening sessions, a 

number of the carriers and their 

associations argued that the sharp 

decline in fatal crashes in the past 

several years is proof that the long hours 

that may be worked under the existing 

rule have not reduced safety and may 

have improved it. The crash rates for 

CMVs have been declining since 1979; 

the rates went up slightly in 2004 and 

2005 before declining again. Neither the 

slight increase after the adoption of the 

existing rule nor the decline thereafter 

can be definitely associated with the 

HOS rule. Crashes have multiple causes 

and the consequences of a crash are 

affected by many factors—including 

speed, size of vehicles involved, 

roadway conditions, and improved 

safety features in vehicles. 

The percentage of fatigue-coded 

crashes in TIFA fluctuated between 1.5 

percent and 2.1 percent between 1998 

and 2007. The number of CMV driver 

fatalities rose 14 percent between 2003 

and 2007 (heavy truck vehicle miles 

traveled rose only 4 percent), but 

declined sharply in 2008. (Driver 

fatalities occur more often in single 

vehicle crashes, which are more likely 

to be associated with fatigue.) The 

decline in 2008, which the industry 

noted, also occurred in passengervehicle-only crashes. In general, crashes 

decline in recessions, as they did in 

1982–83, 1991–92, and 2001–02. The 

recent decline in crashes is welcome; 

but it cannot be attributed to any single 

factor affecting crashes, including 

implementation of the 2003 rule. 

Because the crash data understate 

fatigue and because crashes often have 

multiple causes, which make it difficult 

to determine the role of fatigue even 

when it is suspected, FMCSA has to 

look at other research to determine 

whether the rules require drivers to take 

enough off-duty time to allow them to 

obtain sufficient sleep to avoid being 

fatigued. As noted above, sleep research 

indicates that humans need between 7 

and 8 hours a night to avoid sleep 

deprivation and accumulating sleep 

debt. There are individual variations in 

sleep needs, but the Agency must base 

its assessment of the regulation on the 

average driver, not the outliers who 

need considerably less or more sleep to 

avoid fatigue. In the Virginia Tech 

Transportation Institute (VTTI) 

naturalistic driving study of CMV 

drivers operating under the 2003 rule, 

measured sleep averaged 6.15 to 6.28 

hours (the average includes both work 

days and days off); the average on work 

days was 5.6 hours.11 These drivers 

drove at night, which would have 

reduced their sleep, but they were not 

working full 14-hour days (less than half 

of the work shifts identified included 

driving in the 10th hour; a third did not 

include driving beyond 8 hours).12

Two other surveys covered drivers 

after the implementation of the 2003 

rule. Both asked drivers about the 

amount of sleep they obtain on working 

days. Research indicates that selfreports of sleep overestimate sleep by 20 

to 60 minutes, particularly for sleep 

times below 7 hours.13 Nonetheless the 


emcdonald on DSK2BSOYB1PROD with PROPOSALS2
Federal Register / Vol. 75, No. 249 / Wednesday, December 29, 2010 / Proposed Rules 82177 

6, November 2008, pp. 838–845. FMCSA–2004– 

19608–4011. 

14 Dinges, D.F. & Maislin, G., ‘‘Truck Driver 

Fatigue Management Survey,’’ May 2006. FMCSA– 

2004–19608–3968. 

15Bureau of Labor Statistics, ‘‘American Time Use 

Survey, Census Code 9130, Drivers/Sales Workers 

and Truck Drivers.’’ Accessed August 18, 2010 from: 

http://www.bls.gov/tus/. FMCSA–2004–19608– 

4023. 

16Chen, G.X., Amandus, H. E. & Cezar, C., ‘‘Do the 

Revised Hours of Service Regulations Change Truck 

Driver Work and Sleep Time?’’ Chart from the 137th 

APHA Annual Meeting, November 7–11, 2009. 

FMCSA–2004–19608–3541. 

17Balkin, T., Thorne, D., Sing, H., Thomas, M., 

Redmond, D., Williams, J., Hall, S. & Belenky, G., 

‘‘Effects of Sleep Schedules on Commercial Vehicle 

Driver Performance,’’ 2000. FMCSA–2004–19608– 

2007. 

18 Data extracted from the Bureau of Labor 

Statistics, ‘‘American Time Use Survey, Census 

Code 9130, Drivers/Sales Workers and Truck 

Drivers,’’ 2008. FMCSA–2004–19608–4023. 

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

al. (2003). 

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

al. (2003). 

21 Knutson, K.L., Spiegel, K., Penev, P. & Van 

Cauter, E., ‘‘The Metabolic Consequences of Sleep 

Deprivation,’’ Sleep Medicine Review, Vol. 11, No. 

3, June 2007, pp.163–178. FMCSA–2004–19608– 

4010. 

22 Di Milia, L. & Mummery, K., ‘‘The Association 

Between Job Related Factors, Short Sleep and 

Obesity,’’ Industrial Health, Vol. 47, 2009, pp. 363– 

368. FMCSA–2004–19608–3967. 

results are consistent with the findings 

of other research. The Truck Driver 

Fatigue Management Survey conducted 

for FMCSA collected data in 2005 from 

almost 2,300 unionized LTL drivers.14

About 60 percent of the respondents 

drove at night; most respondents drove 

routes that required fewer than 10 hours 

of driving and returned home daily. The 

survey found similar levels of sleep 

(average 6.23 reported hours of sleep 

prior to starting a run). The drivers 

reported an average 6.94 hours of sleep 

in 24 hours on working days, which 

means that drivers estimated they were 

getting about 42 minutes of additional 

sleep during the working day. 

The Bureau of Labor Statistics’ (BLS) 

American Time Use Survey (ATUS) has 

participants complete a daily log of time 

spent on various activities for the same 

day of the week for 60 weeks. For 

example, a participant will record time 

spent working, eating, exercising, 

watching television, and checking email every Monday for 60 weeks.15 A 

National Institute for Occupational 

Safety and Health (NIOSH) analysis of 

ATUS data on truck drivers from the 

2003 to 2006 surveys found that while 

drivers reported an extra hour of sleep 

in 2004 compared to 2003, the amount 

of sleep reported had declined to close 

to the 2003 level by 2006 and that sleep 

on working weekend days also declined. 

The drivers who participated in the 

survey appear to be mostly local 

drivers.16 The decline in sleep as work 

hours increase is consistent with 

previous research on CMV drivers that 

has showed sleep time is a function of 

the amount of off duty time available, 

i.e., as off duty time increases so does 

average nightly sleep time.17 Table 2 

presents the reported sleep of drivers in 

the 2008 ATUS by hours worked.18

TABLE 2—HOURS SLEPT BY HOURS

WORKED—2008 ATUS 

Hours 

worked 

Number of 

driver 

respondents 

Driver average 

hours slept per 

day 

6 ................ 67 8.17 

7 ................ 61 7.85 

8 ................ 48 7.70 

9 ................ 40 7.53 

10 .............. 32 7.33 

11 .............. 18 7.34 

12 .............. 10 6.56 

Although the sleep measured by 

VTTI, which provides the most reliable 

data on sleep under the current rule, is 

better than many drivers obtained under 

the pre-2003 rule, the weekly average 

(with 2 nights off) of slightly more than 

6 hours a night is not enough sleep. The 

Truck Driver Fatigue Management 

Survey indicated that fatigue continues 

to be an issue for a substantial 

percentage of drivers. About 38 percent 

of the drivers said they sometimes and 

6.7 percent said they often had trouble 

staying awake while driving. About 13 

percent reported that they often or 

sometimes fell asleep while driving; 

47.6 percent said they had fallen asleep 

while driving in the previous year. 

Although only 23.4 percent said they 

often or sometimes felt fatigued while 

driving, 65 percent reported that they 

often or sometimes felt drowsy while 

driving. A third of the drivers reported 

that they became fatigued on a half or 

more of their trips. The factor that most 

drivers stated contributed to fatigue 

while driving was the amount of sleep 

before the trip; weather and hours of 

driving were the next most frequently 

cited factors. 

Drivers at the listening sessions 

frequently stated that they know when 

they are tired and, therefore, are the best 

judges of when they need rest and how 

much. Research, however, indicates that 

people are not good at assessing their 

own level of fatigue. In sleep research 

on CMV drivers, self-assessments of 

fatigue and sleepiness show little if any 

relationship to measured performance 

and sleepiness.19 People who are 

chronically fatigued do not recognize 

performance impairment; some do not 

even recognize sleepiness.20 Drivers 

appear to equate tiredness with being 

sleepy, but performance is impaired 

well before a driver becomes sleepy. 

Some drivers at the listening sessions 

noted that they needed naps in the 

middle of their working day even 

though they had a full 10-hour off-duty 

period prior to starting, which indicates 

that they are not obtaining adequate 

sleep during the long off-duty period. 

The importance of adequate sleep was 

shown in the VTTI study, which found 

that in the 24 hours before a critical 

incident (i.e., crashes, near crashes, and 

crash-relevant conflicts such as 

unintended lane deviations), the average 

sleep was only 5.2 hours, about 0.4 

hours less than an average working day. 

FMCSA believes that fatigue continues 

to be a problem for CMV drivers 

working the longest hours. The 2003 

rule, however, does not appear to have 

decreased the daily hours worked, 

which may partly explain why drivers 

continue to obtain inadequate sleep. 

The NIOSH analysis of ATUS data on 

truck drivers, discussed above, found an 

increase in drivers working longer hours 

since the 2003 rule became effective. 

FMCSA requests comments on 

additional studies the Agency should 

consider in developing the final HOS 

rules. 

Ideally, if available, the Agency 

would use post-2003 data to provide a 

before and after analysis of the 2003 

change from a 10- to an 11- hour limit. 

It might compare States with different 

hours limits. Under this approach, the 

Agency could use the probability of a 

crash in each hour of driving, not the 

proportion of crashes that are fatiguerelated. 

B. Driver Health 

Adverse effects on driver health must 

be carefully considered in the 

formulation of HOS regulations. Driving 

a CMV, particularly in regional and 

long-haul operations, involves both long 

hours of work and long hours of 

continuous sitting. A growing body of 

research across industries (described in 

greater detail in the regulatory impact 

analysis (RIA) available in the docket) 

indicates that long hours of work are 

linked to sleep loss, which in turn is 

linked to obesity, cardiovascular disease 

(CVD), diabetes, and a variety of other 

health impacts.21 Long hours are also 

independently associated with 

obesity.22 There is no simple linear 

relationship between the ‘‘driver’s life’’ 

of long hours, protracted sitting, and 

moderate-to-severe sleep deprivation 

and one or more health outcomes. 


emcdonald on DSK2BSOYB1PROD with PROPOSALS2
82178 Federal Register / Vol. 75, No. 249 / Wednesday, December 29, 2010 / Proposed Rules 

23Banks, S. & Dinges, D. F., ‘‘Behavioral and 

Physiological Consequences of Sleep Restriction,’’ 

Journal of Clinical Sleep Medicine, Vol. 3, No. 5, 

August 15, 2007, pp. 519–528. FMCSA–2004– 

19608–3957. 

24Flegal, K.M., Carroll, M.D., Ogden, C.L. & 

Johnson, C.L., ‘‘Prevalence and Trends in Obesity 

Among U.S. Adults, 1999–2008,’’ Journal of the 

American Medical Association, Vol. 303, No. 3, 

2010, pp. 235–241. FMCSA–2004–19608–3970. 

25RoadReady data provided to FMCSA. 

26Martin, B.C., Church, T.S., Bonnell, R., BenJoseph, 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. 

27BMI is a measure of body fat based on height 

and weight. Normal weight is considered a BMI of 

18.5 to 24.9. BMI between 25 and 29.9 is considered 

overweight. BMIs above 30 are considered obese. 

28Hauner, H., ‘‘Overweight—Not Such a Big 

Problem,’’ Deutsches A ̈ rzteblatt International, Vol. 

106, No. 40, 2009, pp. 639–640. FMCSA–2004– 

19608–3979. 

29Finkelstein, E.A., Brown, D.S., Wrage, L.A., 

Allaire, B. T. & Hoerger, T.J., ‘‘Individual and 

Aggregate Years-of-Life-Lost Associated with 

Overweight and Obesity,’’ Obesity, Vol. 18, No. 2, 

February 2010, pp. 333–339. FMCSA–2004–19608– 

4006. 

30 70 FR 49983, et seq.; August 25, 2005. 

31Fu, J. S., Calcagno, J. & Davis, W.T., ‘‘Improving 

Heavy-Duty Diesel Truck Ergonomics to Reduce 

Fatigue and Improve Driver Health and 

Performance,’’ Report # FMCSA–RRR–10–010. 

Rather this relationship must be viewed 

as a network of mutually reinforcing 

effects that result in varying levels of 

risk for particular outcomes such as 

CVD. Table 3 reflects current scientific 

thinking on how this network of 

relationships acts on health: 

TABLE 3: HEALTH HABIT AND RISK

RELATIONSHIPS

Long hours .......... → ... Insufficient sleep. 

→ ... Obesity. 

→ ... CVD. 

Insufficient sleep .. → ... Obesity. 

→ ... High blood pressure. 

→ ... Diabetes. 

Sedentary pattern → ... Obesity. 

→ ... Metabolism. 

→ ... Increased risk of 

mortality. 

Obesity ................ → ... Obstructive sleep 

apnea. 

→ ... High blood pressure. 

→ ... CVD. 

→ ... Stroke. 

→ ... Diabetes. 

→ ... Arthritis. 

→ ... Other disease. 

The RIA includes a detailed 

discussion of research related to sleep 

loss, health effects related to sleep loss, 

and particularly the biochemical 

mechanisms that link sleep loss with 

obesity, diabetes, and CVD. It is 

important to note that the links between 

sleep loss and many of the health effects 

are not simply correlations; in many 

cases, scientists have been able to 

identify the biochemical changes 

associated with sleep deprivation that 

produce the health effects.23

Although sleep loss, long hours, and 

sedentary work are not the only factors 

contributing to obesity, the level of 

obesity among CMV drivers is 

dramatically higher than among U.S. 

adult male workers as a whole—67 

percent higher for all obesity (about 30 

percent of all adult male workers 24 are 

obese versus 50 25–55 percent of CMV 

drivers 26), and about 3 times greater for 

body mass indices (BMIs) >40 (4.2 

percent of all adult male workers versus 

12 percent of CMV drivers).27 As 

discussed in detail in the RIA, chronic 

sleep loss is associated with increased 

mortality. The increased mortality rates 

associated with obesity are much 

higher. Hauner, H. (2009) cites a study, 

published in 2009, on BMI and causespecific mortality in 900,000 adults that 

‘‘showed an average loss of 2 to 4 years 

of life with a BMI between 30 and 34.9; 

and a BMI between 40 and 45 shortened 

life by an average of 8 to 10 years.’’ 28

Finkelstein, E.A., et al. (2010) did not 

find significant impacts below a BMI of 

35, but found that BMIs of 35 to < 40 

reduced life span for whites by 4 to 5 

years; BMIs of 40 and above reduced life 

spans by 8 to 10 years.29 Beyond 

mortality effects, the health conditions 

that result from sleep deprivation and 

sedentary work are associated with 

higher health care costs and the risk that 

drivers who develop the conditions may 

fail to meet the medical standards for 

driving a CMV. 

In the 2005 final rule, FMCSA 

discussed in detail other potential 

factors associated with health effects, 

including exposure to particulate matter 

in diesel fumes, vibration, noise, etc.30

For all of these, it was difficult to 

develop a dose-response relationship 

that relates specific hours of exposure to 

particular health impacts. For diesel 

exposure, there is the confounding 

factor that drivers may be less exposed 

when driving than when stopped at 

truck stops or terminals. FMCSA 

supported research conducted by the 

University of Tennessee to examine 

factors that are suspected to influence 

health and performance of CMV 

drivers—noise, vibration, and cabin air 

quality of heavy-duty diesel vehicles. 

These variables were measured both 

while vehicles were driven and while 

they were parked with the engine idling. 

The resulting data will serve as a 

baseline from which similar future 

studies can determine if new truck 

designs have changed the existing state 

of these conditions for drivers. Twentyseven trucks (model years 2006–2008) 

from four manufacturers were tested. 

Overall, in-cab noise levels were found 

to be below the 8-hour standard limits 

established by the Occupational Safety 

and Health Administration and FMCSA. 

Average vibrations from the seats were 

generally found to be below 

International Standards Organizationestablished (but non-regulatory) 

standard exposures for an 8-hour 

driving day. Air quality was determined 

by measuring in-cab concentrations of 

carbon monoxide, nitrogen oxides and 

particulate matter less than 2.5 microns 

aerodynamic diameter. The results 

indicated that trucks have a tendency to 

self-pollute the cabs during extended 

periods parked with the engine idling; 

on-road concentrations were several 

orders of magnitude lower. Carbon 

monoxide concentrations were well 

below standard permissible exposure 

levels. During several parked-idling 

scenarios, particulate matter 

concentrations exceeded air quality 

standards for 24-hour and annual 

averages.31

FMCSA has not changed the 

conclusions it drew in 2005 on health 

impacts regarding noise, vibration, and 

air quality. FMCSA has not found any 

other research that changes the 

conclusions regarding these health 

impacts. However, FMCSA emphasizes 

that it is important to study the chronic 

conditions of truck drivers. We therefore 

seek information from the public on 

conditions that truck drivers face. 

C. Flexibility 

As discussed above, drivers at the 

public listening sessions asked FMCSA 

to provide some flexibility in the rules 

so that they could take breaks when 

they need rest or encounter unexpected 

delays. FMCSA agrees that drivers 

should be encouraged to take rest when 

they need it and has included 

provisions to incorporate flexibility into 

schedules. In developing the proposed 

rule, however, FMCSA was aware that 

the flexibility that some drivers were 

seeking, if unconstrained, would simply 

allow them or their employers to build 

into their schedules the extended hours 

that the 2003 rule was intended to curb. 

FMCSA, therefore, strove to balance 

flexibility with the need to limit hours 

of work. 


emcdonald on DSK2BSOYB1PROD with PROPOSALS2
Federal Register / Vol. 75, No. 249 / Wednesday, December 29, 2010 / Proposed Rules 82179 

32Hanowski, R.J., Hickman, J.S., Olson, R.L. & 

Bocanegra, J., ‘‘Evaluating the 2003 Revised Hoursof-Service Regulations for Truck Drivers: The 

Impact of Time on Task on Critical Incident Risk,’’ 

Accident, Analysis and Prevention, Vol. 41, No. 2, 

March 2009, pp. 268–275. FMCSA–2004–19608– 

3978. 

VI. Discussion of Proposed Rule 

A. Driving Time 

For the reasons explained below, 

while FMCSA views the 10-hour driving 

limit as the currently preferred option, 

FMCSA understands that available data 

are susceptible to more than one 

interpretation and, consequently, is 

considering both a 10-hour driving limit 

and an 11-hour driving limit within one 

duty day. Commenters are therefore 

encouraged to submit data or studies 

that would allow FMCSA to calculate 

more effectively the difference, if any, in 

crash risk between a 10- and an 11-hour 

driving limit. Such a calculation would 

be especially important in developing 

benefits estimates. 

FMCSA seeks information on the 

increased probability of a fatigue-related 

crash during the 11th hour; to obtain 

such information, FMCSA seeks 

information on the percentage of total 

number of hours driven after the 10th 

hour. With respect to cost estimates, 

FMCSA seeks information regarding the 

impact of eliminating the 11th hour of 

driving on logistics, location centers, 

distribution centers, just in time 

inventories, competitiveness with global 

markets, and delivery of perishable 

goods. With respect to benefits and 

costs, FMCSA seeks information with 

respect to any other process/logistics 

aspects of driving hours not captured in 

safety, productivity of drivers, and 

driver health. 

The motor carrier industry operated 

under a 10-hour driving limit for 

decades prior to the 2003 rule. FMCSA 

acknowledged in past rulemakings that 

the risk associated with driving 

increases with the number of hours 

driven. Data from the LTCCS and TIFA 

show that the prevalence of fatiguerelated crashes increases with hours 

driven, most notably between the 10th 

and 11th driving hours. LTCCS also 

found the probability of having a 

fatigue-coded crash increased with 

hours worked and awake. Any person 

driving 11 hours rather than 10 is likely 

to have been working for a longer 

period. 

The approach to estimating the effects 

of long driving hours on crash risks 

assumes that higher ratios of fatiguerelated crashes to total crashes implies 

higher crash rates. It is mathematically 

possible, though, that the increase in 

this ratio could come about because the 

denominator—the total number of 

crashes—is falling at a faster rate than 

fatigue-involved crashes as driving 

hours increase, not because fatigue 

increases. In other words, crash rates 

due to weather, mechanical failure, 

traffic, or road conditions may fall, as 

each driver accumulates more hours on 

the road; and this could make it appear 

that fatigue is a growing problem 

whereas it is actually stable. Because 

fatigue-related crashes more than triple 

over a long driving day, however, the 

incidence of crashes caused by other 

factors would have to drop 

precipitously for this explanation of the 

increasing ratio of fatigue crashes to 

hold. The Agency has no evidence for 

a pattern in which greater hours on the 

road would be associated with 

systematic reductions in crash causes 

other than fatigue, let alone a pattern so 

dramatic as to explain the increasing 

rate of fatigue-related crashes. Hence, 

the Agency is using the share of fatiguerelated crashes in lieu of data on the 

relative crash risk at each hour. 

Generally, studies of time-on-task 

fatigue have not determined whether, let 

alone when, the driver took breaks 

during the driving window, how long a 

driver had been awake or on duty, or 

how many hours the driver had worked 

that week. All of these factors could 

have an impact on fatigue and on the 

likelihood of crashes in the later hours 

of a work day. 

The VTTI naturalistic driving study, 

sponsored by DOT and used for other 

distracted driving rulemakings, found 

no increase in risk between the 10th and 

11th hours of driving.32 Indeed, this 

study found that the first hour of driving 

is the riskiest and that there is little, if 

any, difference in risk among other 

hours. This is significant because the 

VTTI study is one of the few research 

studies that looks at 11th hour crash risk 

using data from the period after 2003, 

when 11th hour driving became legal for 

interstate as well as intrastate drivers. 

This study has been published and 

subject to peer review. 

For several reasons, however, the 

VTTI study does not appear to be 

definitive. First, it involved a small 

sample size of 102 drivers that was not 

representative of the trucking industry. 

Second, the study looks at the risk of 

critical incidents, which include nearcrashes and crash-avoidance responses, 

as well as actual crashes. A definitive 

link between critical incidents and 

crash risk has not been established. 

Third, the study involved drivers who 

were, with their knowledge, observed by 

video cameras and other electronic 

equipment. It is possible that this may 

have led drivers to behave more 

carefully than drivers would have in the 

absence of observation, leading to an 

overall underestimate of crash 

likelihood, and possibly an 

underestimate of the risk during the 

eleventh hour. (Note that the 

observation occurred at all hours and 

hence the question is whether the 

observation effect, if it existed, 

eliminated what would otherwise be an 

elevated risk in the eleventh hour. There 

is no reason to believe that being 

observed would cause drivers to be 

relatively more careful when driving 

longer hours than when driving shorter 

hours.) Fourth, drivers and carriers who 

participated in the video-surveyed study 

did so voluntarily, which could skew 

the study towards participation from 

more safety-conscious drivers and 

carriers. 

Ideally, FMCSA would want to 

compare the number of serious crashes 

in each hour of driving after an 

extended break to the total driving time 

by hour of driving or, alternatively, 

vehicle miles traveled by hour. 

Conceptually, the degree to which the 

distribution of crashes falls into later 

driving hours relative to the distribution 

of driving would indicate the change in 

risk for longer trips. The data set would 

have to be reasonably representative of 

the drivers affected by the regulations; 

large enough to provide an accurate 

picture for individual hours, despite the 

rarity and randomness of crashes and 

the relatively small fraction of driving in 

the later hours; use an unbiased 

measure of hours; and cover a period in 

which long driving hours were legal. 

Furthermore, data on other factors that 

are known to affect fatigue and crash 

risks—total time on duty that day and 

previous days, short breaks, 

opportunities for restorative rest, time of 

day, and experience, for example— 

would have to be included in the data 

set as well, to allow the time-on-task 

effect to be isolated. 

A data set meeting these criteria is not 

available at this time. The Agency is 

requesting commenters to provide any 

statistically reliable data that would 

allow specification of relative crash risk 

of each hour of driving. An answer 

would turn on knowing the total 

number of crashes in each hour and the 

percentage of driving takes place in each 

hour. The Agency is also interested in 

knowing whether the risk of fatiguerelated crashes increases with 

additional hours awake or on task, or if 

the relative crash risk (of all crashes not 

just the likelihood that crashes will be 

coded as fatigue) does not increase in 

later hours, as the VTTI study suggests. 

There are some large samples of crash 

data that include the number of hours 


emcdonald on DSK2BSOYB1PROD with PROPOSALS2
82180 Federal Register / Vol. 75, No. 249 / Wednesday, December 29, 2010 / Proposed Rules 

33FMCSA, ‘‘2007 Hours of Service Study,’’ 2007. 

Available in the docket: FMCSA–2004–19608–2538. 

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

35Folkard, S. & Lombardi, D. A., ‘‘Modeling the 

Impact of the Components of Long Work Hours on 

Injuries and ‘Accidents’,’’ American Journal of 

Industrial Medicine, Vol. 49, No. 11, November 

2006, pp. 953–963. FMCSA–2004–19608–4019. 

O’Neill, T.R., Krueger, G.P., Van Hemel, S.B. & 

McGowan, A.L., ‘‘Effects of Operating Practices on 

Commercial Driver Alertness,’’ 1999. FMCSA– 

2004–19608–0071. 

36Hamilton, M. T., Hamilton, D. G. & Zderic, T. 

W., ‘‘Role of Low Energy Expenditure and Sitting in 

Obesity, Metabolic Syndrome, Type 2 Diabetes, and 

Cardiovascular Disease,’’ Diabetes, Vol. 56, No. 11, 

November 1, 2007, pp. 2655–2667. FMCSA–2004– 

19608–3976. 

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

of driving, including the LTCCS 

(published but not peer reviewed) and 

TIFA; but the time periods these cover 

are largely or entirely before the HOS 

rules were changed in 2003. They are 

also deficient, to varying degrees, in the 

availability and reliability of 

information on driver schedules and 

other factors that affect crash risks. Even 

more seriously, these studies do not 

directly provide information on the 

distribution of all driving by hour for 

either the drivers involved in the 

crashes or for comparable drivers. In 

other words, the data sets provide the 

numerator for the rate of crashes per 

hour, but not the denominator. 

It is possible to develop distributions 

of all driving by hour (through surveys, 

for example), but these cannot be used 

along with crash data for a different 

population without biasing the results 

to an unacceptable degree. Researchers 

have also collected data on both crashes 

and total driving hours for the same 

populations; but, to date, these studies 

have had samples too small (and 

narrow, in terms of their subjects’ 

characteristics) to give reliable results 

on long hours. FMCSA is currently 

sponsoring a study based on schedule 

data collected by electronic logs that 

should be able to solve most of the 

problems in this type of research, but 

that study is not complete as of the time 

of the analysis. Given the imprecise but 

demonstrated relationship between 

fatigue, time-on-task, hours awake, and 

hours worked, there is a reasonable 

argument for limiting driving time to 10 

hours. 

Before making a final decision, 

however, FMCSA is seeking additional 

studies or data that examine, in greater 

detail, the differences between driving 

in the 10th or the 11th hours. FMCSA 

is also interested in data that indicate 

when and how frequently the 11th hour 

is used. It seeks data on how much of 

the 11th hour is used when a driver goes 

into the 11th hour. For example, on 

days in which the driver both picks up 

and delivers a truckload, how often does 

the driver have enough duty time to 

reach the 11th hour? When the driver 

drives over 10 hours, is it by 5 minutes 

or by 55 minutes? What is the 

percentage of driving that takes place in 

each hour compared to total driving that 

occurs? 

The American Trucking Associations 

(ATA), in their comments to the docket 

(April 21, 2010), argued that reducing 

driving time or on-duty time would 

increase crashes because more 

inexperienced drivers would need to be 

hired to move freight. FMCSA 

recognizes that there is a risk associated 

with inexperienced drivers, but believes 

that this problem is not as serious as 

ATA suggests. The 2007 Commodity 

Flow Survey indicated that about 75 

percent of freight is moved in trips of 

less than 100 miles; with loading and 

unloading time, it is unlikely that 

drivers making multiple short trips in a 

day are able to drive 10, let alone 11 

hours. FMCSA’s 2007 Field Study found 

that for longer haul operations (beyond 

100 miles) 27 percent of the driving 

periods extended into the 11th hour.33

Based on comments about long loading/ 

unloading time that drivers made at the 

listening sessions, it appears that there 

will be many days when drivers cannot 

reach even 10 hours. 

In an industry where TL motor 

carriers experience annual driver 

turnover above 100 percent, there is 

always a considerable influx of new 

drivers each year, as well as 

experienced drivers changing jobs. 

Better training and supervision of new 

drivers would seem a more reasonable 

response than pushing older drivers to 

work longer hours. In addition, when 

FMCSA analyzed this issue in the 2003 

RIA, it found the effects of hiring new 

drivers were almost exactly 

counterbalanced by the reduced volume 

of long-haul trucking caused by shifting 

some traffic to rail. 

Nonetheless, there is considerable 

uncertainty about the extent of the 

elevated crash risk associated with 

inexperience; and the possibility that 

new drivers operating under a 10-hour 

limit might be involved in more crashes 

than veteran drivers following an 11- 

hour rule cannot be ignored. According 

to BLS figures, employment in the 

trucking industry has declined by 

between 9 and 13 percent since 2008— 

or by 120,000 to 180,000 drivers. A 10- 

hour limit that required carriers to hire 

additional personnel might result in the 

return of experienced drivers largely 

immune to ‘‘rookie’’ driving mistakes. In 

any case, while FMCSA currently favors 

the 10-hour limit, it requests further 

research and data from the commenters 

before making a decision. 

B. Breaks 

Under the existing rule, a driver may 

drive for up to 11 consecutive hours. 

Although a relatively small percentage 

of drivers drive without breaks, the 

complaints from drivers about their 

inability to take breaks under the 14- 

hour rule suggest that some may, in fact, 

work without any breaks. ATA, in their 

comments to the docket, stated that the 

full 14-hour day has been built into 

supply chain planning and that any 

reduction would affect productivity. 

This argument implies that some 

carriers expect their drivers to work the 

full 14 hours without a break. A NIOSH 

analysis of ATUS data on truck drivers 

found that truck drivers worked 1 hour 

per day more on weekdays and 3.4 

hours per day more on weekends in 

2006 compared to 2003.34

FMCSA believes that working 

continuously without a break is neither 

safe nor healthy. Research indicates that 

breaks during work can counteract 

fatigue and reduce the risk of crashes.35

On the health side, Hamilton, M.T., et 

al. (2007) found that increased standing 

and moving had a greater effect on the 

body’s ability to block molecular signals 

that cause metabolic diseases than 

adding vigorous exercise. They 

concluded that a non-exercising person 

may become even more metabolically 

unfit by sitting too much.36

FMCSA wants to give drivers 

flexibility in scheduling breaks, 

recognizing that they are not always 

able to find a place to stop at a 

particular point in their schedule. 

Under the proposed rule, drivers would 

be able to work and drive for up to 7 

hours without a required break. Upon 

reaching the 7th hour since coming on 

duty, the driver would need to take a 

break of at least a half hour before 

resuming driving. The driver could 

remain on duty without a break after the 

7th hour, but could not drive again 

without taking a break. A driver who 

took a half hour break at 6.5 or 7 hours 

after coming on duty would generally 

not need a second break. But a driver 

who took a half-hour break 4 hours after 

coming on duty would need a second 

break no later than 11.5 hours after 

coming on duty to drive after that time. 

This approach should give drivers 

considerable latitude in scheduling 

breaks. Many drivers take breaks 

already; the 2006 FMCSA Truck Driver 

Fatigue Management Survey indicated 

that more than 65 percent of the drivers 

took breaks of a half hour or more 

during the work day.37 A break will 


emcdonald on DSK2BSOYB1PROD with PROPOSALS2
Federal Register / Vol. 75, No. 249 / Wednesday, December 29, 2010 / Proposed Rules 82181 

reduce time-on-task effects and negative 

health impacts of prolonged sitting. 

C. Duty Time/Driving Window 

FMCSA proposes to set a 14- 

consecutive-hour driving window 

during which a driver may be on-duty 

for 13 hours. At the end of the driving 

window, the driver would have to go off 

duty. This approach effectively reduces 

the maximum allowable work during a 

duty period by 1 hour from the existing 

rule and gives drivers an opportunity to 

take up to an hour off duty during the 

working day. An extra hour off duty per 

day should increase sleep and mitigate 

fatigue and health impacts for drivers 

working to the limits of the rule. Even 

if drivers do not sleep during the breaks, 

they can engage in other non-work 

activity (e.g., eating and talking to 

friends and family) that might otherwise 

reduce sleep time during the 10-hour 

off-duty period. The 1-hour reduction in 

duty time, in combination with 10 hours 

of driving time, would maintain the 

amount of on-duty-not-driving time that 

the current rule allows for drivers who 

are using all of their driving time, i.e., 

3 hours. If the Agency adopts the 11- 

hour driving limit, drivers would have 

only 2 hours of on-duty-not-driving 

time. FMCSA field studies in 2005 and 

2007 indicated that many drivers do not 

work the 14 hours allowed under the 

current rule; the reduction to 13 on-duty 

hours, therefore, should have a limited 

impact on most drivers. 

As discussed above, drivers at the 

listening sessions and in comments on 

the previous rulemakings stated that the 

existing rule discourages them from 

taking breaks because breaks are 

included in the calculation of the 14- 

hour driving window. They asked 

FMCSA to return to the pre-2003 rule, 

which did not include off-duty time in 

the calculation of the 15-hour limit then 

in effect. FMCSA rejected that approach 

in 2003 because it enabled drivers to 

extend the duty day well beyond 15 

hours, allowing them to drive 17 to 20 

hours or more after starting work, when 

fatigue can be extreme. 

Because FMCSA wants to encourage 

drivers to take rest breaks when needed 

and in response to requests for 

flexibility, the Agency is proposing to 

allow drivers of property-carrying CMVs 

to extend the driving window by 2 

hours, to 16 consecutive hours, twice in 

the previous 168 consecutive hours. 

This is not a calendar week (e.g., 12:01 

a.m. Monday to 12 p.m. Sunday, etc.) 

but rather a moving period comprised of 

the past 168 hours, a period that 

changes every hour. A driver who used 

one 16-hour driving window starting at 

6 a.m. on Tuesday and a second 

beginning at 8 a.m. on Thursday, could 

not start another 16-hour day until 6 

a.m. on the following Tuesday. It should 

also be noted that taking a 34-hour (or 

longer) restart does not affect this 168- 

hour look-back period. In other words, 

the driver does not get two 16-hour days 

simply by completing a restart period. 

The proposed extension would not 

extend the 13-hour duty time; any 

driver who wanted to drive to the 16th 

hour after coming on duty would have 

to have taken 3 hours of off-duty time 

during the driving window. Any use of 

time beyond 14 hours after coming on 

duty would count as a use of the 

extension. For example, a driver who 

worked a 14.5 hour period would be 

considered to have used one extension. 

Finally, the driver would have to go off 

duty at the end of the 16th hour (instead 

of the end of the 14th hour on normal 

days). 

FMCSA considered extending the 

driving window to 16 hours daily, but 

decided that such a change would invite 

the extended hours that occurred under 

the pre-2003 rules. Once drivers, 

carriers, brokers, and shippers knew 

drivers could work over a 16-hour 

period daily, they could build that 

period into their scheduling, as ATA 

indicates they have done with the 14- 

hour clock. That could mean drivers 

would be routinely driving in the 16th 

hour after the start of the driving 

window. It would also put the driver on 

a schedule that could move starting time 

forward 2 hours a day or 10 hours over 

a 5-day period. Although it is easier to 

obtain adequate sleep when moving a 

schedule forward rather than backward, 

this level of forward change could 

seriously disrupt sleep. Unlike drivers 

on regular schedules who would use the 

extension only if necessary to deal with 

unexpected problems (breakdowns, 

unanticipated congestion) because using 

it would disrupt their work schedule the 

next day, long-haul TL drivers are not 

on a regular schedule and would have 

no disincentive for using a daily 16- 

hour extension. FMCSA believes that 

limiting the 16-hour provision to twice 

a week and not allowing the extension 

to add duty time will encourage drivers 

to use it only when they need flexibility. 

A number of drivers at the listening 

sessions wanted the option of extending 

the driving window so they could reach 

a safe location when they were held at 

a loading dock until they ran out of duty 

time but still had to move the truck. 

FMCSA does not believe that such a 

provision is advisable. It could take 

several hours to find a safe location in 

some parts of the country. These drivers 

were essentially asking for an unlimited 

extension of the work day as the result 

of frequently occurring incidents that 

should be foreseeable under most 

circumstances. In addition, it would be 

impossible to determine whether the 

driver needed time (however little) to 

reach a safe location or was simply 

working beyond the limits. Similarly, 

drivers argued that they want to be able 

to stop driving and ‘‘sit out’’ rush hours. 

Drivers could use the 16-hour window 

to avoid rush hour congestion twice a 

week, if they choose to use it that way, 

but not more frequently. FMCSA 

requests comments on whether 16 hours 

is an appropriate extension or whether 

15 hours would be sufficient. FMCSA 

also requests comments on whether the 

extension should be limited to once a 

week, twice a week, or allowed more 

frequently, and whether drivers should 

be barred from using the extension on 

consecutive days. 

Night drivers, particularly those using 

the sleeper berth at rest areas or truck 

stops, may find it difficult to obtain a 

reasonable amount of sleep in the daytime. Even people who are suffering 

from acute sleep deprivation (e.g., no 

sleep for 24 hours) find it hard to sleep 

during the day under ideal conditions 

(dark, quiet spaces). FMCSA is soliciting 

information on patterns of work for 

night drivers: For drivers who always 

drive overnight, what is the typical 

length of their duty day? For drivers 

who sometimes drive overnight, how 

frequently do they do that? FMCSA is 

seeking comments on whether drivers 

who drive at least 3 hours between 

midnight and 6 a.m. should have an 

hour less duty time available (12 hours 

rather than 13) to provide a longer 

period to obtain sleep. 

D. Restart and Weekly Limits 

The pre-2003 rule prohibited driving 

after being on duty 60 hours in 7 days 

or 70 hours in 8 days. This meant that 

drivers working to the daily limits could 

run out of hours and would need to take 

up to 3 days off before they could start 

driving again. Particularly for long-haul 

drivers, this prolonged off-duty period 

away from home was seen as a serious 

problem. The 2003 final rule allowed 

drivers to reset their calculation of the 

60- or 70-hour limits whenever they 

take at least 34 consecutive hours off 

duty. The 34-hour restart provision has 

been almost uniformly praised by 

drivers and carriers, except for those 

who would like a shorter restart. Safety 

advocacy groups, however, have 

opposed the restart because it allows a 

driver who is driving and working to the 

limits to be on duty up to 84 hours in 

7 days and 98 hours in 8 days, a 

substantial increase over the 60-/70- 

hour limits of the pre-2003 rule. The 


emcdonald on DSK2BSOYB1PROD with PROPOSALS2
82182 Federal Register / Vol. 75, No. 249 / Wednesday, December 29, 2010 / Proposed Rules 

38 Kecklund, G. & A ̊ kerstedt, T., ‘‘Effects of Timing 

of Shifts on Sleepiness and Sleep Duration,’’ Journal 

of Sleep Research, Vol. 4, No. S2, December 1995, 

pp. 47–50. FMCSA–2004–19608–4008. 

39 Van Dongen, H.P.A. & Belenky, G., 

‘‘Investigation into Motor Carrier Practices to 

Achieve Optimal Commercial Motor Vehicle Driver 

Performance: Phase I,’’ April 2010. FMCSA–2004– 

19608–4020. 

40Lavie, P., ‘‘To Nap, Perchance to Sleep— 

Ultradian Aspects of Napping,’’ in D. Dinges and R. 

Broughton (eds.), Sleep and Alertness, 

Cronobiological, Behavioral and Medical Aspects of 

Napping, New York: Raven Press, Ltd., 1989, pp. 

99–120. FMCSA–2004–19608–4032. 

41 Kurumatani, N., Koda, S., Nakagiri, S., 

Hisashige, A., Sakai, K., Saito, Y., Aoyama, H., 

Dejima, M. & Moriyama, T., ‘‘The Effects of 

Frequently Rotating Shiftwork on Sleep and the 

Family Life of Hospital Nurses,’’ Ergonomics, Vol. 

37, No. 6, June 1994, pp. 995–1007. FMCSA–2004– 

19608–4065. 

42Bonnet, M.H. & Arand, D.L., ‘‘We Are 

Chronically Sleep Deprived,’’ Sleep, Vol. 18, No. 10, 

1995, pp. 908–911. FMCSA–2004–19608–4033. 

43A ̊ kerstedt, T., ‘‘Work Hours, Sleepiness and the 

Underlying Mechanism,’’ Journal of Sleep Research, 

Vol. 4, Supplement 2, December 1995, pp. 15–22. 

FMCSA–2004–19608–4064. 

44Lavie, P., ‘‘Ultrashort Sleep-Waking Schedule. 

III. ‘Gates’ and ‘Forbidden Zones’ for Sleep,’’ 

Electroencephalography and Clinical 

Neurophysiology, Vol. 63, No. 5, May 1986, pp. 

414–425. FMCSA–2004–19608–4053. 

45 Van Dongen, H.P.A., Jackson, M. & Belenky, G., 

‘‘Duration of Restart Period Needed to Recycle with 

Optimal Performance: Phase II,’’ FMCSA, October 

2010. 

safety advocacy groups have also 

pointed out that, as a practical matter, 

the 34-hour restart provides only one 

night of sleep for night-time drivers. 

FMCSA did not amend the restart 

provision in the 2005 and subsequent 

rulemakings because it provides 

substantial economic productivity 

benefits and because the Agency 

believed that drivers would not 

generally take the minimum of 34 hours 

or work extreme hours; the Agency 

assumed that drivers would use the 

restart mainly to simplify bookkeeping 

and to limit down-time while away from 

home. Drivers and carriers, however, 

stated at the listening sessions and in 

their comments that, especially on the 

road, drivers do indeed take the 

minimum restart allowed. Drivers who 

are on the road for several weeks at a 

time could, therefore, work very long 

hours even if they cannot actually reach 

the maximum allowed because of delays 

in pick-ups and deliveries. Some 

carriers with regular schedules stated 

that they have used the restart to add 

one work shift a week. If carriers have 

arranged their schedules so that drivers 

are on duty for the full 14-hour day, as 

ATA claimed in its 2010 comment to 

the docket, then the restart allows a 

driver to work more than 80 hours in 7 

days compared with 60 hours in the pre2003 rule. 

FMCSA continues to believe that 

allowing drivers to spend less idle time 

on long runs is sensible, but must 

balance this against the fact that the 

restart provision may be exacerbating 

problems with long hours and resulting 

fatigue. As discussed above, long 

weekly hours are associated with sleep 

loss, fatigue, and serious health impacts. 

FMCSA is, therefore, proposing two 

limits to the 34-hour restart. First, any 

34-hour or longer period used as a 

restart would have to include two 

periods between midnight and 6 a.m. (2 

nights of sleep). Second, drivers would 

be allowed to take only one restart a 

week; that is, they would be able to 

begin a restart only 168 hours after the 

beginning of the previous restart. For 

example, if a driver ends a work week 

at Friday at 6 p.m. and begins the 

restart, the restart could end no earlier 

than Sunday at 6 a.m. The next restart 

could not begin earlier than the 

following Friday at 6 p.m. If the driver 

ran out of weekly hours at noon on that 

second Friday, for example, he or she 

could not count the off-duty hours 

between noon and 6 p.m. toward the 34 

hours. 

The 2-night provision would mainly 

impact night-time drivers because 

daytime schedules already allow drivers 

to obtain 2 nights of sleep within the 34- 

hour period. For night time drivers, the 

2-night provision would extend the 

required restart provision. Under the 

NPRM, a driver with a regular nighttime schedule would need to take 

virtually an extra day off duty to meet 

the requirement for two night-time sleep 

periods and stay on schedule. ATA 

argued in its 2010 comment to the 

docket that, if confronted with this 

requirement, these drivers would ‘‘flip’’ 

to a day-time schedule to maximize 

work time, which would add to 

congestion. FMCSA notes that many of 

the drivers who work a regular nighttime schedule drive for LTL or local 

carriers and usually take the weekend 

off. They will not be affected by this 

change. ATA also argued that 2 nights 

off were not needed for night drivers 

because they could get two sleep 

periods in 34 hours off. Research on 

shift workers indicates that on their 

days off they switch to a regular nighttime sleep schedule.38

Washington State University 

conducted a study for FMCSA to 

determine the effectiveness of the 

current 34-hour restart provision in 

restoring performance.39 The first phase 

of the study evaluated the effectiveness 

of the 34-hour restart using a laboratory 

setting to compare best-case (day-time 

work) and worst-case (night-time work) 

scenarios. The study found that a 34- 

hour break was effective at mitigating 

sleep loss and consequent performance 

impairment for day-time workers who 

obtained 2 nights of sleep, but was not 

effective for night-time workers who 

obtained only 1 night of sleep in the 

break plus two long nap periods. 

Research indicates that daytime sleep is 

not as restorative as nighttime sleep.40

Even when the time is available, the 

time actually spent sleeping is less 

during the day than at night.41 Shift 

work and night work are associated with 

less sleep, even when night work is 

permanent,42 presumably because of the 

disrupting effects of circadian cycles.43

Sleep obtained is not only reduced in 

length, but also poorer in quality.44

Although it is not feasible to eliminate 

nighttime driving, such driving cannot 

be treated the same as driving during 

daytime. 

Washington State University recently 

completed a second phase of its study. 

It has not been published or peer 

reviewed yet but will be completed 

soon. Phase II examined a restart 

provision for night-time drivers that 

contains two sleep periods between 

midnight and 6 a.m., with a minimum 

of 34 hours off duty. In this study, the 

primary performance measure, the 

number of lapses on a 10-minute 

psychomotor vigilance test (PVT), was 

administered eight times per day in the 

working periods. The study data 

showed no significant difference in PVT 

lapses between the pre-restart and postrestart work periods overall, indicating 

that the 2-night recovery period was 

effective at maintaining driver 

performance.45 The study included a 

58-hour restart period instead of a 34- 

hour restart period. The Washington 

State University study has some 

shortcomings. It utilized a very small 

sample size of participants (12 drivers). 

Also, the study took place not on the 

road, but in a laboratory setting with 

participants who knew that their 

behavior was being observed. In 

addition, the participants were 

instructed to sleep and were all 

recruited as perfectly healthy drivers. 

Because the study included a 58-hour 

restart time, not a 34-hour restart, the 

improvements could have been 

attributable to the extra off-duty period 

these 12 drivers were getting. In reality, 

drivers are not always in perfect health, 

and they cannot be told to sleep at a 

particular time by FMCSA. Nonetheless, 

FMCSA believes that the two phases of 

this study plus the research cited above 

justify today’s proposal to amend the 

34-hour restart by expanding the 

required restart period and adding a 

requirement for two off-duty periods 


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Federal Register / Vol. 75, No. 249 / Wednesday, December 29, 2010 / Proposed Rules 82183 

46Mollicone, D.J., Van Dongen, H.P., Rogers, N.L. 

& Dinges, D.F., ‘‘Response Surface Mapping of 

Neurobehavioral Performance: Testing the 

Feasibility of Split Sleep Schedules for Space 

Operations,’’ Acta Astronaut, Vol. 63, No. 7–10, 

2008, pp. 833–840. FMCSA–2004–19608–4017. 

from midnight to 6 a.m. The 168-hour 

provision would have the effect of 

limiting drivers’ weekly hours to an 

average of 70 in 7 days. This represents 

a substantial reduction from the current 

limits, but still allows drivers on the 

road to take restarts that are shorter than 

required under the pre-2003 rule. Most 

restarts for day-time drivers would 

range from 34 hours to 48 hours. Drivers 

on a regular night schedule would need 

about 58 hours to obtain 2 nights of 

sleep and stay on schedule. 

Finally, under the proposed rule, 

drivers would have to designate a 

specific period as a restart. This 

provision is intended to help drivers 

who may have a long break in the 

middle of the week (e.g., while waiting 

for the next load or because of illness), 

but who do not want to use that as a 

restart even if they are eligible to do so. 

Drivers may want to postpone use of the 

restart until a specific time so they can 

be sure of having the entire 60 or 70 

hours available when resuming a full 

work schedule. 

It should be noted that the restart 

provision is mainly important for 

drivers who are working long days and 

who, therefore, reach their 60- or 70- 

hour limit, which remains unchanged, 

in less than 7 or 8 days. Drivers who do 

not work long hours, or do so only on 

a limited number of days during the 

week, may never need to use the restart 

except as a way to simplify keeping 

track of their hours. For example, a 

driver could work 10 hours a day for 

7 days, take the eighth day off, and 

continue to work without using the 

restart provision. 

E. Sleeper Berth 

Prior to 2005, FMCSA’s rules allowed 

drivers to obtain the equivalent of 10 

consecutive hours off by taking two 

periods in the sleeper berth, neither of 

which could be less than 2 hours long. 

Drivers, particularly team drivers, 

frequently divided their time into 5 

hours of driving followed by 5 hours in 

the sleeper berth. In 2005, FMCSA 

eliminated the split sleeper berth 

provision and required at least 8 

consecutive hours in the sleeper berth 

so that drivers would have the chance 

to obtain at least one long sleep period. 

Drivers using the 8-hour sleeper berth 

period must also take a second break of 

at least 2 hours, either in the sleeper 

berth or off duty. The shorter period is 

included in the calculation of the 14- 

hour duty period. 

For years, drivers and carriers have 

expressed concerns about the 2005 

revisions. Team drivers have 

complained that, because it is difficult 

to sleep in a moving truck, alternating 

shorter runs with their co-driver would 

allow them to stop before they become 

too tired. Other drivers argued that it is 

hard to stay in the sleeper berth for 8 

consecutive hours. Drivers generally 

objected to the requirement to include 

the shorter period in the calculation of 

the 14-hour window, saying it 

discourages the use of the provision. 

Some drivers and carriers have also said 

that the complexity of the provision 

makes them reluctant to use it because 

they are uncertain how it should be 

logged. 

FMCSA recognizes that drivers have 

concerns about the existing provision, 

but there is no clear evidence at this 

time that two short sleep periods can 

provide the equivalent of one longer 

period. Emerging research indicates that 

dividing sleep into two shorter periods 

results in equal alertness levels,46 but 

this is not the only issue. The time of 

day in which the sleep periods are taken 

is critically important. 

FMCSA is not proposing to change 

the sleeper berth exception, but the 

other changes to the rule would have an 

impact on sleeper berth users. The 

shorter off-duty or sleeper berth period 

would be included in the calculation of 

the driving window, as it is now. 

Because the driving window (14 hours) 

would be longer than allowed duty time 

(13 hours), use of the shorter period 

would not always reduce available duty 

time. On days when the driver is using 

the 16-hour extended window, the 

shorter period would not reduce duty 

time unless the period is more than 3 

hours or unless the driver takes more 

than an hour of other breaks during the 

driving window. On days when the 

driver is using the 14-hour driving 

window, use of the sleeper exception 

would reduce the available duty hours 

by at least 1 hour. 

F. Other Issues 

On-duty definition. In September 

2005, ATA petitioned FMCSA to change 

the definition of ‘‘on duty time’’ to allow 

team drivers to log as off duty up to 2 

hours spent in the passenger seat. Under 

the existing definition, drivers are on 

duty if they are in the truck unless they 

are resting in the sleeper berth. Single 

drivers may spend the shorter break (at 

least 2 hours) either in the sleeper berth 

or off duty. Because one of the team 

members drives while the other takes 

his or her break, the result of the rule 

is that the non-working driver has to 

take both periods in the sleeper berth 

because it is not possible to log the 

shorter time as off duty while he or she 

is ‘‘in or on upon any commercial motor 

vehicle.’’ 

FMCSA agrees with ATA’s 

recommendation and is proposing to 

revise the definition of ‘‘on duty’’ to 

allow a team driver to log as off duty up 

to 2 hours spent in the passenger seat 

either immediately before or after the 

8-hour period in the sleeper berth. In 

addition, FMCSA is proposing to 

exclude from the definition of ‘‘on 

duty,’’ time spent resting in or on a 

parked CMV. Drivers in the past have 

noted that the current definition makes 

it difficult for drivers of CMVs without 

sleeper berths (known as day cabs) to 

rest because they were considered to be 

on duty if they were in a parked truck. 

In many cases, the safest, most 

comfortable, and often the only place for 

such a driver to rest during a duty tour 

will be in the parked truck. 

Penalties. FMCSA is proposing to add 

to the penalty schedule in Appendix B 

to 49 CFR part 386 a new paragraph that 

would define as potentially egregious 

violations of § 395.3(a) or § 395.5(a) any 

instance where the driver exceeds the 

driving-time limit (whether 10 or 11 

hours) by 3 or more hours. The Agency 

would consider drivers or motor carriers 

who commit such violations to be 

eligible for the maximum civil penalties 

available. 

In determining the amount of any 

civil penalty, Congress instructed 

FMCSA to consider a number of factors, 

including the nature, circumstances, 

extent, and gravity of the violation 

committed, as well as the degree of 

culpability, history of prior offenses, 

ability to pay, effect on ability to 

continue to do business, and other such 

matters as justice and public safety may 

require. Congress instructed FMCSA to 

calculate each penalty to induce further 

compliance (49 U.S.C. 521(b)(2)(D)). 

Congress, however, also entrusted 

FMCSA with the responsibility to 

ensure that motor carriers operate safely 

by imposing penalties designed to 

ensure prompt and sustained 

compliance with safety laws (Section 

222 of the Motor Carrier Safety 

Improvement Act of 1999 (MCSIA), (49 

U.S.C. 521 note)). Prompt and sustained 

compliance with driving-time limits is 

paramount to the Agency’s safety 

mission; FMCSA believes that making 

egregious violations eligible for the 

maximum penalty will help to promote 

these goals. Although some of the 

statutory factors in 49 U.S.C. 

521(b)(2)(D) may limit the Agency’s 

ability to impose penalties, others—like 

the extent and gravity of the violation— 


emcdonald on DSK2BSOYB1PROD with PROPOSALS2
82184 Federal Register / Vol. 75, No. 249 / Wednesday, December 29, 2010 / Proposed Rules 

could favor enhanced penalties. 

Furthermore, section 521(b)(2)(D) allows 

FMCSA to take into account ‘‘such other 

matters as * * * public safety may 

require.’’ The mandate to consider 

‘‘public safety,’’ combined with the 

injunction of section 222 to impose civil 

penalties ‘‘calculated to ensure prompt 

and sustained compliance,’’ clearly 

authorizes FMCSA to balance mitigating 

factors against aggravating factors and to 

impose the maximum penalty for a first 

offense that has significant potential to 

cause serious injury or death, such as 

excessively long driving hours. FMCSA 

has no desire to impose such a penalty; 

on the contrary, the Agency’s hope is 

that the deterrent effect will make such 

action unnecessary. But this is a penalty 

the Agency believes it should have at 

the ready to deal with truly extreme 

violations. 

FMCSA is not proposing to make the 

imposition of maximum penalties 

automatic because it recognizes that a 

driver may be considered to have 

exceeded the limit to this degree in 

different circumstances. For example, 

one driver may have driven 14 hours 

between 8 a.m. and 10 p.m.; a second 

driver may have driven 10 hours, taken 

a 9-hour off-duty period, then driven 

another 4 hours. Both of these drivers 

have technically driven more than the 

proposed rule would allow (either 3 

hours more than an 11-hour drivingtime limit or 4 hours more than a 10- 

hour limit), but only the first might be 

considered an egregious violation. 

FMCSA requests comments on whether 

3 hours is the appropriate period to 

trigger the consideration of egregious 

violation penalties. FMCSA is also 

seeking comment on whether it should 

apply a similar concept to other 

provisions (duty time, driving window, 

weekly limits, restart) and if so, what 

those periods should be. 

Section 395.1(o). FMCSA proposes 

removing paragraph (o), which allows 

property-carrying CMV drivers who 

return to their work-reporting locations 

daily to extend the duty day to 16 hours 

once a week. FMCSA believes that 

anyone driving a CMV large enough to 

require a commercial driver’s license 

(CDL) (the drivers affected by paragraph 

(o)) at the 16th hour should not be doing 

so without taking at least 3 hours off 

duty during that shift. FMCSA thinks 

the proposed rule, which would allow 

drivers to extend the driving window to 

16 hours without extending duty time 

twice a week, is preferable for reasons 

of safety. Furthermore, retaining 

§ 395.1(o) while introducing two 16- 

hour driving windows with 13-hour onduty periods would add considerable 

confusion to the rule with no 

corresponding advantage and indeed a 

possible detriment to safety. 

Section 395.1(e)(2). Today’s proposal 

for a 13-hour work limit within a 

general 14-hour driving window, and an 

optional 16-hour window twice a week, 

is similar in some respects to the current 

provision for short-haul operations with 

vehicles that do not require a CDL 

(§ 395.1(e)(2)). The rule for drivers of 

non-CDL vehicles includes certain 

exceptions and restrictions (an 

exemption from the logging requirement 

coupled with a 150 air-mile operating 

radius and an obligation to return to the 

work reporting location every day); 

however, like the proposed rule for 

larger vehicles, § 395.1(e)(2) allows a 14- 

hour driving window 5 days a week and 

a 16-hour window 2 days a week. In 

order to simplify the HOS regulations, 

FMCSA is considering rescinding 

paragraph (e)(2) and requiring the 

drivers who now use it to comply with 

the standard HOS limits. Although we 

have not formally included such a 

proposal in this NPRM, the Agency 

seeks comments on the effect of 

eliminating paragraph (e)(2). Our 

preliminary analysis suggests that 

removing paragraph (e)(2) would offer 

drivers advantages (e.g., greater 

geographical range and freedom from 

the need to return to their point of 

departure every day) that might 

compensate for the more restrictive 13- 

hour work limit and the loss of the 

logbook exemption. FMCSA has little 

hard information about operations 

currently conducted under paragraph 

(e)(2); we invite drivers and carriers that 

utilize this provision to explain how a 

decision to remove it would affect them. 

Paragraph (e)(1) of § 395.1, like 

paragraph (e)(2), also exempts drivers 

from keeping logs, but limits them to a 

100 air-mile operating radius and 

requires them to return to their work 

reporting location and go off duty 

within 12 hours of coming on duty; 

unlike paragraph (e)(2), it is available to 

drivers of all vehicles, even those large 

enough to require a CDL. To what extent 

could carriers and drivers use this 

provision to compensate for a possible 

elimination of § 395.1(e)(2)? 

In conjunction with a potential 

rescission of § 395.1(e)(2), the Agency is 

also considering an expansion of the 

100 air-mile radius in § 395.1(e)(1) to 

150 miles while leaving the rest of that 

paragraph unchanged. Please comment 

on the combined effects on carrier 

operations of those two possible 

amendments. 

Compliance dates. When FMCSA 

adopted the 2003 HOS rule, it set a 

compliance date about 8 months after 

the date of publication. Before that time, 

drivers had to operate under the old 

rules. For enforcement reasons, it is 

necessary to set a specific date for 

compliance. FMCSA requests comments 

on the appropriate period between the 

effective date and compliance date of 

the rule. It should be long enough to 

allow training of drivers and inspectors 

and reprogramming of electronic log 

software. 

Twenty-four hour clock. Safety 

advocacy groups have asked FMCSA to 

re-impose the ‘‘24-hour clock’’ that 

existed under the pre-1962 rules. They 

argue that working on a 24-hour 

schedule would allow drivers to 

establish a regular sleep pattern, which 

would increase the chances that the 

drivers could obtain more sleep. In 

practice, a substantial part of the 

industry already meets the requirement 

for a regular schedule. The long-haul TL 

sector, however, does not. In theory, 

under the existing rule a long-haul TL 

driver could drive 11 hours, take 10 

hours off duty, then start driving again, 

moving his or her starting time back 3 

hours a day. 

FMCSA considered whether it was 

possible to limit drivers to a 24-hour 

schedule but was not able to develop a 

provision that was not operationally 

disruptive. Although superficially 

simple—the start time on the first day 

of a weekly cycle sets the start time for 

all other days—a 24-hour schedule is 

too rigid in practice and fails to 

accommodate the events over which the 

driver or carrier has no control. A few 

cities limit the hours when trucks are 

allowed to load and unload; shippers 

control loading and unloading time 

based on their needs, not drivers’ 

schedules. At the beginning of a work 

week, drivers may not know where and 

when their subsequent loads will be. 

Adding another set of restrictions to 

their schedules is unnecessarily 

complex. It could also discourage 

drivers from taking shorter work days so 

they will be able to make a delivery 

appointment early the next day. The 

alternatives, such as limiting start times 

within a single trip, which would 

address the most likely period during 

which a driver might rotate the clock 

backward, would be difficult to enforce. 

Although FMCSA is concerned about 

the effect of schedules that rotate 

backward or forward by several hours 

over days or the work week, the Agency 

has no information on the extent to 

which this is actually occurring. Under 

the current rule, a driver could 

theoretically drive 11 hours, then take 

10 hours off before driving another 11 

hours, but this cannot occur on very 

many consecutive days. On the first day 

of any trip, the driver has to spend onVerDate Mar<15>2010 03:52 Dec 29, 2010 Jkt 223001 PO 00000 Frm 00016 Fmt 4701 Sfmt 4702 E:\FR\FM\29DEP2.SGM 29DEP2

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Federal Register / Vol. 75, No. 249 / Wednesday, December 29, 2010 / Proposed Rules 82185 

duty time while the truck is being 

loaded and on the last day, the driver 

has to wait while it is unloaded. As 

discussed in the description of the 

industry above, according to the 2007 

Commodity Flow Survey, only 12 

percent of the tons moved in for-hire 

trucks and less than 1 percent in private 

carrier trucks traveled more than 500 

miles, which represents a 1-day trip. 

This average is consistent with a trend 

in the industry to shift to intermodal 

transport for long hauls, using rail for 

the long distance segments and trucks 

for regional operations. Drivers on 1-day 

trips may not be able to rotate their 

schedules backward substantially. 

One-size-fits-all approach. MCSAC 

and some commenters at the listening 

sessions recommended that FMCSA 

consider developing different rules for 

different sectors of the industry. The 

Agency recognizes that different parts of 

the industry have different operational 

patterns and demands. Drivers and 

carriers, however, frequently conduct 

different types of operations in a single 

week. In 2000, FMCSA proposed to 

segregate the industry into five broad 

kinds of operation and to promulgate 

different rules for each. Most 

commenters thought the result was far 

too complex while others complained 

about the absence of a special provision 

for their particular operational niche. 

There was no consensus except that the 

proposal was unworkable. FMCSA 

continues to believe that creating 

separate requirements for the various 

sectors would make the rule extremely 

difficult to understand, implement, and 

enforce. 

FMCSA notes that there are special 

provisions (some regulatory, some 

statutory) for farmers, driver salesmen, 

drivers in the construction industry, 

utility service vehicles, motor coaches, 

oilfield operations, adverse driving 

conditions, Alaska, and Hawaii. The 

HOS rules do not apply when truckers 

are providing emergency relief in the 

wake of a State or Federal declaration of 

an emergency. Furthermore, drivers and 

carriers have significant flexibility in 

complying with the rules. Neither 

FMCSA nor its predecessor agencies 

have ever had a genuine ‘‘one-size-fitsall’’ approach, but a safety age ncy 

cannot have separate standards for each 

and every element of the staggeringly 

diverse motor carrier industry. 

VII. Section-by-Section Analysis 

In part 385, Appendices B 

(explanation of the safety rating process) 

and C (regulations pertaining to 

remedial directives in Part 385, subpart 

J) would be revised to update references 

to part 395 and to remove references to 

§ 395.1(o), which would be deleted. 

Revised references would be added for 

paragraphs in § 395.3. References to 

§ 395.3(c)(1) and (2) would be deleted 

because a violation of the minimum 

restart period would constitute, and be 

cited as, a violation of the 60- or 70-hour 

rule. Providing separate violations for 

elements of the proposed rule would 

allow FMCSA to determine what parts 

of the rule had been violated. Under the 

current method of citing violations, a 

driver who drives for 18 hours straight 

cannot be distinguished from the driver 

who drives 11 hours, takes a 9.5 hour 

break, then drives another 7 hours. Both 

are cited for violating the 11-hour rule. 

In part 386, Appendix B, paragraph 

(a) (penalty schedules; violations and 

maximum civil penalties) would be 

revised to add a new paragraph (6) to 

state that any violation of the drivingtime limit that was 3 or more hours 

above the 10- or 11-hour limit could be 

considered an egregious violation that 

could trigger imposition of the 

maximum penalty. 

Section 390.23(c)(2) (relief from 

regulations) would be revised to make 

the 34-hour restart provision consistent 

with the revised requirements in part 

395. 

In § 395.1, paragraph (b) (adverse 

driving conditions), would be revised to 

update (1)(i) to change 13 hours to 12 

hours if a 10-hour driving-limit is 

adopted (2 hours more than the driving 

limit). If an 11-hour driving-time limit is 

adopted, no change would be needed. 

Paragraph (b)(1)(ii) would be revised to 

reference both the 14-hour and the 

16-hour driving window. 

In § 395.1, paragraph (d)(2) (oilfield 

operations) would be revised to clarify 

the language on waiting time and to 

state that waiting time would not be 

included in the calculation of the 

driving window. 

In § 395.1, paragraph (e) (short-haul 

operations), paragraphs (1)(iv)(A) and 

(2)(v) would be revised to change the 

driving hours allowed to 10 hours; if an 

11-hour driving-time limit is adopted, 

no change would be needed. The 

introduction to paragraph (e)(2) would 

be revised to eliminate the reference to 

paragraph (o). Paragraph (e)(2)(viii) 

would be revised to include the 

provision that the restart must include 

two night-time periods and is subject to 

the 168-hour limit. 

Section 395.1(g) (sleeper berths) 

would be revised to change the driving 

time (if a 10-hour limit is adopted); it 

would be revised to change the dutytime and driving-window numbers and 

to add the provision (to paragraph 

(g)(1)(ii)(C)) that a team driver may log 

as off duty up to 2 hours in the 

passenger seat of a moving vehicle 

immediately before or after an 8- to 10- 

hour period in the sleeper berth. 

Section 395.1(o) and (q) would be 

removed. Paragraph (q), a statutory 

exemption for certain transporters of 

grapes, expired on September 30, 2009. 

See Sec. 4146 of the Safe, Accountable, 

Flexible, Efficient Transportation Equity 

Act: A Legacy for Users, Public Law 

109–59, 119 Stat. 1144, 1749, August 10, 

2005. 

In § 395.2, the definition of ‘‘on-duty 

time’’ would be revised to allow a team 

driver to log as off duty up to 2 hours 

spent in the passenger seat either 

immediately before or after the 8-hour 

period in the sleeper berth. In addition, 

FMCSA is proposing to exclude from 

the definition of ‘‘on duty,’’ time spent 

resting in or on a parked CMV. In the 

past, drivers have noted that the current 

definition makes it difficult for drivers 

of truck tractors without sleeper berths 

(known as day cabs) to rest because they 

were considered to be on duty if they 

were in a parked truck. In many cases, 

the safest, most comfortable, and often 

the only place for such a driver to rest 

during a duty tour will be in the parked 

truck. 

Section 395.3 would be revised to 

place the individual requirements in 

separate paragraphs so that FMCSA 

would be able to cite drivers for 

violations of specific elements. Under 

the current rule, drivers are cited only 

for violations of driving time, on-duty 

time, and the weekly limits. The 

proposed rule would make it possible to 

cite drivers for violations of the daily 

off-duty break, the use of the 16-hour 

extension, the 34-hour restart, the 2- 

night provision, and the 168-hour 

provision as well as driving time, 

weekly hours, and on-duty time. This 

approach would provide useful 

information about the types of 

violations being committed. 

VIII. Required Analyses 

A. Executive Order 12866 

Under Executive Order (E.O.) 12866 

(58 FR 51735, October 4, 1993), FMCSA 

must determine whether a regulatory 

action is ‘‘significant’’ and, therefore, 

subject to Office of Management and 

Budget review and the requirements of 

the E.O. The E.O. defines ‘‘significant 

regulatory action’’ as one that is likely to 

result in a rule that may: 

(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 


emcdonald on DSK2BSOYB1PROD with PROPOSALS2
82186 Federal Register / Vol. 75, No. 249 / Wednesday, December 29, 2010 / Proposed Rules 

47The ‘‘2007 Field Survey’’ is an alternate title for 

the FMCSA, ‘‘2007 Hours of Service Study,’’ 2007. 

FMCSA–2004–19608–2538. 

48U.S. Census Bureau, ‘‘2007 NAICS [North 

American Industry Classification System] 

Definitions 484 Truck Transportation,’’ 2008. 

FMCSA–2004–19608–4066. 

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. 

For this analysis, FMCSA considered 

and assessed the consequences of four 

potential regulatory options. (A copy of 

the complete RIA is available in the 

docket.) Option 1 is the no-action 

alternative, which would leave the 

existing 2008 rule in place. Options 2, 

3, and 4 each would adopt several 

revisions to the rule. The RIA addresses 

each option separately. Option 2 

proposes a 10-hour driving-time limit; it 

would also require the driver to take a 

rest break during the day; impose a 

daily duty limit; and reduce the weekly 

maximum driving and on-duty time 

theoretically achievable. Option 2 

would give drivers the flexibility to 

work intensely for a single week, after 

taking two full days off; for example, 

daytime drivers could work up to 13 

hours per day for 5 days in a row (a 

cumulative 65 hours), take 34 hours off 

to restart the 70-hour clock, and then 

work another 13-hour day, for a total of 

6 13-hour days, which is a cumulative 

78 hours on-duty (out of 7 consecutive 

calendar days). Options 3 and 4 are 

identical to Option 2 in all respects 

except for the amount of driving time 

allowed. Option 3 would allow an 11- 

hour driving-time limit, while Option 4 

would adopt a 9-hour driving-time 

limit. Although Option 2 is the Agency’s 

currently preferred option, this 

summary presents the impacts of 

Options 2 through 4. 

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 proposal; rather they 

would indicate the extent to which the 

supplementary rules ensured that the 

proposal’s costs and benefits were 

realized. 

To calculate the impacts of the 

proposed 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 would 

lead them to choose schedules well 

within the current limits for reasons 

unrelated to those limits will not be 

affected by the rule changes. 

The analysis concentrated on intercity 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-daya-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, if not most, 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 changes proposed in 

this NPRM are 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.47

Companies and drivers were identified 

as operating within or beyond a 100- 

mile radius. The Economic Census,48

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. 

To analyze the impact of the proposed 

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 the 2007 Field Survey to 

define intensity groups as shown in 

Table 4. 

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 4—DRIVER GROUPS BY INTENSITY OF SCHEDULE

Work intensity group Average weekly work time 

Percent of 

workforce 

Weighted 

average hours 

per 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 


emcdonald on DSK2BSOYB1PROD with PROPOSALS2
Federal Register / Vol. 75, No. 249 / Wednesday, December 29, 2010 / Proposed Rules 82187 

49These data are shown in Exhibit 2–6 in the 

2008 RIA [docket item number FMCSA–2004– 

19608–3510.1]. Details are in the 2010 RIA, 

Appendix A, ‘‘Data and Calculations for Industry 

Profile.’’ 

50Average large truck crash costs were obtained 

from the report, ‘‘Unit Costs of Medium/Heavy 

Truck Crashes,’’ March 13, 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 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 average hours of work 

per week based on each group’s share of 

the total population. Data analyzed in 

2005 from the 2004 Field Survey and a 

large truck-load carrier suggested a 

slightly higher industry-wide average 

work week of 53 hours, which is the 

value used in the cost-benefit analysis.49

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. 

The basic approach for calculating 

impact on the industry is to follow the 

chain of consequences from changes in 

HOS provisions to the way they would 

affect existing work patterns in terms of 

work and driving hours per week, taking 

into account overlapping impacts of the 

rules. The resulting predicted changes 

in work and driving hours are then 

translated into changes in productivity 

by comparing them to average hours. 

The changes in productivity, in turn, are 

translated into changes in costs 

measured in dollars. The total combined 

effect would be to decrease industry 

productivity by approximately 2 percent 

for Option 2, 1 percent for Option 3 and 

6 percent for Option 4. These decreases 

in industry productivity result in total 

annual cost of $990 million for Option 

2, $480 million for Option 3 and $2,270 

million for Option 4. In addition, the 

cost of re-training drivers, carriers, and 

enforcement personnel, as well as reprogramming electronic logbook and 

other carrier driver-management 

software would result in approximately 

$320 million in costs in the first year for 

Options 2 through 4. The training and 

re-programming costs have been 

annualized because they would not 

recur; over the first 10 years at a 7 

percent discount rate, they would 

amount to about $40 million per year. 

The total annualized costs of the 

changes in operating, training, and reprogramming would therefore be 

approximately $1.030 billion for Option 

2, $520 million for Option 3, and $2.310 

billion for Option 4. 

Rule Benefits 

The primary goal of the proposed 

changes is to improve highway safety by 

reducing driver fatigue and the 

associated increase in the probability 

that fatigued drivers will be involved in 

crashes. A secondary 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 these 

changes, the Agency has developed a 

series of functions that incorporate 

fatigue-coded to hours of daily driving 

and hours of weekly work. In past 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 later 

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 current analyses, FMCSA is 

replacing 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,’’ recently set at $6 

million); 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.50

Based on these functions, we have 

estimated that the safety benefits of this 

rule would be substantial. The midpoint estimate of the annual crash 

reduction benefits associated with these 

changes is based on the assumption that 

fatigue is involved in roughly 13 percent 

of large truck crashes, based on the 

LTCCS; this yielded a monetized safety 

benefit of approximately $720 million 

per year for Option 2, $430 million for 

Option 3, and $1.220 billion for Option 

4. The analysis included a series of 

sensitivity analyses surrounding these 

estimates because the level of fatigue 

involvement in truck crashes is 

uncertain. For each of the options, the 

sensitivity analysis produced a range of 

benefits per year under the assumption 

that fatigue is involved in 

approximately 7 percent of crashes and 

under the assumption of a higher 18 


emcdonald on DSK2BSOYB1PROD with PROPOSALS2
82188 Federal Register / Vol. 75, No. 249 / Wednesday, December 29, 2010 / Proposed Rules 

percent fatigue involvement. The 

estimated safety benefits ranged from 

$390 million to $1.000 billion for 

Option 2, from $230 million to $590 

million for Option 3, and from $660 

million to $1.690 billion for Option 4. 

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) accidents and mortality due to 

decrements in several health-related 

measures, such as an increase in the 

incidence of high blood pressure, 

obesity, diabetes, cardiovascular disease 

(CVD), and other health problems. The 

analysis attempted to model the 

workplace accident 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 or more 

hours of sleep required for optimal 

mortality, cutting back on extreme work 

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. 

For the low sleep scenario, driver health 

improvement benefits are estimated to 

be $1.480 billion per year for Option 2, 

$1.190 billion for Option 3, and $1.990 

billion for Option 4. Under the medium 

sleep scenario, these benefits fall to 

$690 million per year for Option 2, $650 

million for Option 3, and $660 million 

for Option 4. 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, indicating that it 

is not beneficial for individuals to get 

additional sleep if they are already 

getting adequate sleep. As discussed in 

the RIA, we do not believe that the 

negative benefits for drivers with a high 

baseline level of sleep would be 

realized, but we include them to keep 

the analysis consistent with our other 

scenarios. 

Tables 5 through 7 below present the 

total annual benefits of Options 2 

through 4 for all three fatigue 

involvement and sleep scenarios 

described above. As this analysis 

indicates, Option 2 could generate 

anywhere from $280 million to $2.480 

billion in annual benefits; Option 3 

could generate between $330 million 

and $1.790 billion in annual benefits; 

and Option 4 could generate between 

negative $10 million and $3.680 billion 

in annual benefits, These estimates 

include both health and safety benefits. 

The mid-point estimate for Options 2 

and 3 would result in a cost beneficial 

rule. For Option 2, the mid-point 

estimate is $1.410 billion in benefits, 

with associated costs of $1.030 billion; 

and for Option 3, the mid-point estimate 

is $1.080 billion in benefits, with 

associated costs of $520 million. For 

Option 4, the mid-point estimate is not 

cost beneficial, with benefits of $1.880 

billion and associated costs of $2.310 

billion. 

TABLE 5—ESTIMATED BENEFITS BY AMOUNT OF SLEEP AND CRASH RATE FOR OPTION 2 (10 HOURS DRIVING) 

[Millions per year] 

Assumed percent of crashes due to fatigue 

Assumed amount of nightly sleep 

Low sleep Medium 

sleep High sleep 

7 percent .................................................................................................................................................. $1,870 $1,080 $280 

13 percent ................................................................................................................................................ 2,210 1,410 620 

18 percent ................................................................................................................................................ 2,480 1,690 890 

TABLE 6—ESTIMATED BENEFITS BY AMOUNT OF SLEEP AND CRASH RATE FOR OPTION 3 (11 HOURS DRIVING) 

[Millions per year] 

Assumed percent of crashes due to fatigue 

Assumed amount of nightly sleep 

Low sleep Medium 

sleep High sleep 

7 percent .................................................................................................................................................. $1,420 $880 $330 

13 percent ................................................................................................................................................ 1,620 1,080 530 

18 percent ................................................................................................................................................ 1,790 1,240 700 


emcdonald on DSK2BSOYB1PROD with PROPOSALS2
Federal Register / Vol. 75, No. 249 / Wednesday, December 29, 2010 / Proposed Rules 82189 

51 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. 

Di Milia, L. & Mummery, K. (2009). 

52Mokdad, A.H., Ford, E.S., Bowman, B.A., Dietz, 

W.H., Vinicor, F., Bales, V.S. & Marks, J.S., 

‘‘Prevalence of Obesity, Diabetes, and ObesityRelated Health Risk Factors, 2001,’’ Journal of the 

American Medical Association, Vol. 289, No. 1, 

2003, pp. 76–79. FMCSA–2004–19608–4016. 

53 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. 

54Martin, B.C., et al. (2009). 

TABLE 7—ESTIMATED BENEFITS BY AMOUNT OF SLEEP AND CRASH RATE FOR OPTION 4 (9 HOURS DRIVING) 

[Millions per year] 

Assumed percent of crashes due to fatigue 

Assumed amount of nightly sleep 

Low sleep Medium 

sleep High sleep 

7 percent .................................................................................................................................................. $2,650 $1,320 ¥$10 

13 percent ................................................................................................................................................ 3,210 1,880 560 

18 percent ................................................................................................................................................ 3,680 2,350 1,030 

Table 8 below presents the net 

benefits of Options 2 through 4 for all 

three baseline sleep scenarios. These 

figures use the 13 percent fatigueinvolvement scenario described above. 

Option 3 has the highest net benefits for 

the medium and high sleep scenarios, 

while Option 2 has slightly higher net 

benefits in the low sleep scenario. The 

higher net benefits of Option 3 are due 

to the allowance of 11 hours of driving 

per day, which reduces productivity 

losses to the industry. Option 2 results 

in greater safety benefits than Option 3; 

and for high-benefit scenarios, the 

monetary value of those safety 

improvements outweighs their 

economic impact. Furthermore, this 

option appears likely to be cost 

beneficial under all but the most 

optimistic assumptions about how 

much sleep drivers get under the 

current rule. Under Option 4, the 

economic costs to industry are likely to 

outweigh the combined benefits of crash 

reductions and improvements in driver 

health. The high negative value for 

Option 4 for high baseline sleep is the 

result of the U-shaped relationship 

between average sleep per night and 

mortality rates mentioned above. 

Although the analysis shows a negative 

health benefit for drivers with medium 

and high baseline levels of sleep, 

FMCSA does not believe that these 

negative benefits would be realized 

because drivers might choose other 

activities rather than sleeping if they are 

getting enough sleep already. The 

negative benefits are included in the 

analysis to be consistent with 

assumptions regarding the other 

scenarios. 

TABLE 8—NET BENEFITS BY OPTION

[Millions per year] 

Net benefit scenario 

Option 2 

10 hours of 

driving allowed 

Option 3 

11 hours of 

driving allowed 

Option 4 

9 hours of 

driving allowed 

Low Baseline Sleep ..................................................................................................................... $1,170 $1,100 $900 

Medium Baseline Sleep ............................................................................................................... 380 560 ¥420 

High Baseline Sleep .................................................................................................................... ¥410 10 ¥1,750 

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.51 Obesity is in turn 

associated with higher incidences of 

diabetes, CVDs, hypertension, and 

obstructive sleep apnea.52 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.53

Research on the health and health 

costs found that CMV drivers are both 

heavier for their height and less healthy 

than adult males as a whole. As 

discussed in Section V. of this NPRM, 

drivers are far more likely than adult 

male workers as a whole to be obese. 

Table 9 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.54 (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 9—DRIVER HEALTH CONDITIONS BY WEIGHT CATEGORY

N=2,950 

Percent drivers in weight 

category 

Presence of at 

least one 

health risk factor 

(percent) 

Hypertension 

(percent) 

Diabetes 

(percent) 

High cholesterol 

(percent) 

Normal weight ..................................... 13 26 .................. 21 ................. 5 .......................................................... 11 

Overweight .......................................... 30 39 .................. 31 ................. 10 ........................................................ 17 


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55Wiegand, 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. 

56http://tonto.eia.doe.gov/oog/info/gdu/ 

gasdiesel.asp, accessed May 11, 2010. 

TABLE 9—DRIVER HEALTH CONDITIONS BY WEIGHT CATEGORY—Continued 

N=2,950 

Percent drivers in weight 

category 

Presence of at 

least one 

health risk factor 

(percent) 

Hypertension 

(percent) 

Diabetes 

(percent) 

High cholesterol 

(percent) 

Obese .................................................. 55 59 .................. 51 ................. 21 ........................................................ 26 

Overall ................................................. ........................ 48 .................. 41 ................. 16 ........................................................ 21 

National adult male (CDC statistics) ... ........................ ....................... 31.80 ............ 10.9 (7.4% diagnosed) ....................... 15.60 

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, the 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. Third, 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 

a safety-critical event, and at 1.99 times 

greater risk of being above the fatigue 

threshold as measured by eye closure 

when driving.55

Conclusion 

In conclusion, the RIA shows an 

annualized cost of about $1 billion for 

Option 2, about $500 million for Option 

3, and over $2 billion for Option 4. 

Annual safety and health benefit 

estimates range from below $300 

million to more than $2.4 billion in 

quantifiable benefits for Option 2, from 

$300 million to more than $1.7 billion 

for Option 3, and from negative $10 

million to more than $3.6 billion for 

Option 4. Net quantifiable benefits, as a 

result, are likely to be positive, but 

could, under the 13 percent baseline 

fatigue involvement scenario, range 

from a negative $410 million per year to 

more than a positive $1.1 billion per 

year for Option 2, from a negative $10 

million to a positive $1.1 billion for 

Option 3, and from more than a negative 

$1.8 billion to more than a positive $900 

million for Option 4. 

The wide range in estimated 

quantifiable benefits and net 

quantifiable benefits is a consequence of 

the difficulty of measuring fatigue and 

fatigue reductions, which are complex 

and often subjective concepts, in an 

industry with many different 

participants and diverse operational 

patterns. Uncertainty in the value of 

avoided deaths and greater expected 

lifespans create yet more uncertainty, 

the quantified benefits would be higher 

for higher values of ‘‘statistical lives.’’ 

Still, it seems clear that the quantifiable 

benefits could easily be quite 

substantial, and could easily exceed the 

costs. 

The costs, for their part, are large in 

absolute terms but minor when 

compared to the size of the industry: $1 

billion per year (the total annualized 

cost for Option 2) is only half of 1 

percent of revenues, $500 million per 

year (the total annualized cost for 

Option 3) is only one quarter of 1 

percent of revenues, and $2 billion per 

year (the total annualized cost for 

Option 4) is only 1 percent of revenues 

in the for-hire long-haul segment of the 

industry. These total annual costs are an 

even smaller fraction of revenues of the 

long-haul segment as a whole. As an 

additional example, the costs of Option 

2 are equivalent to less than a $0.02 per 

gallon increase in industry fuel costs, 

which is a minimal increase in an 

industry used to wide swings in fuel 

costs. Between 2006 and 2010, diesel 

fuel prices ranged from $2.09 a gallon to 

$4.70 a gallon.56

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 hours). In 

keeping with their relative stringencies, 

Option 3 has lower and Option 4 has 

higher projected benefits than Option 2. 

Option 4’s substantially larger costs do 

not appear to be justified by its 

generally higher range of benefits. While 

both Option 2 and Option 3 are 

generally cost-effective, Option 3’s 

calculated net benefits appear likely to 

be somewhat higher than the net 

benefits of Option 2 under most 

assumptions about baseline conditions. 

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 

Option 2 a reasonable choice. 

Nonetheless, because of the costs of 

Option 2, the Agency requests 

additional data before making its final 

decision. 

The Agency requests commenters to 

submit, to the extent possible, 

statistically reliable information on the 

costs and benefits of Options 2 and 3, 

especially with regard to a 10- and 11- 

hour driving limit, but also on other 

aspects of this NPRM of interest to the 

public. When submitting analyses of 

data, it is important to provide enough 

information on how the data were 

collected and enough actual data to 

allow FMCSA to determine if the 

conclusions drawn are justified by the 

underlying data. 

B. Regulatory Flexibility Act 

The Regulatory Flexibility Act (5 

U.S.C. 601 et seq.) requires Federal 

Agencies to determine whether 

proposed rules could have a significant 

economic impact on a substantial 

number of small entities. FMCSA 

conducted an Initial Regulatory 

Flexibility Analysis (IRFA) to analyze 

the impact of the proposed changes to 

the HOS regulations on small entities. 

After a description of why action is 

being taken by the Agency, this IRFA 

discusses the possible number of 

affected small entities. FMCSA 

estimates the impact of the new HOS 

rule provisions on small carriers in the 

first year in which the rule would be in 


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57As shown in the ‘‘2007 Economic Census,’’ the 

entire trucking industry (NAICS code 484) 

generated revenue of $228,907 million (in 2006 

dollars). FMCSA then used 2007 Economic Census 

data for NAICS code 484 to derive a total estimate 

of 1,183,000 trucks in the for-hire sector. FMCSA 

then divided total revenue by the total number of 

trucks to obtain an estimate of average revenue of 

$193,000 in 2006 dollars, or $199,967 inflated to 

2008 dollars using the Gross Domestic Product 

(GDP) Deflator (http://cost.jsc.nasa.gov/ 

inflateGDP.html). This $199,967 value was rounded 

to $200,000 in the analysis. 58There were 499,706 individual proprietorships 

in the ‘‘truck transportation’’ NAICS code with total 

revenue of $41,110 million. Dividing the total 

revenue by the total number of firms resulted in 

average revenue per firm of $82,269 in 2006 dollars, 

or $85,239 when inflated to 2008 dollars using the 

GDP Deflator (http://cost.jsc.nasa.gov/ 

inflateGDP.html). This $85,239 value was rounded 

to $85,000 in the analysis. 

59FMCSA, ‘‘Regulatory Evaluation of the Fees for 

the Unified Carrier Registration Plan,’’ February 19, 

2010. Available in the docket: FMCSA–2009–0231– 

0181. 

effect for Options 2 and 3. We then 

estimate the annual burden on small 

entities over the first 10 years of the rule 

being in effect. Lastly, we discuss the 

reporting, recordkeeping, and other 

compliance requirements of the 

proposed rule, discuss whether any 

other Federal regulations overlap with 

the proposed rule, and discuss the 

consideration of alternatives to 

minimize the impact of the proposed 

rule on small entities. 

1. A Description of the Reasons Why 

Action by the Agency is Being 

Considered 

The goals of the proposed changes to 

the HOS rule are to improve safety 

while ensuring that the requirements 

would not have an adverse impact on 

driver health. The proposed rule would 

also provide drivers with the flexibility 

to obtain rest when they need it and to 

adjust their schedules to account for 

unanticipated delays. 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, with the 10-hour option, 

the modified HOS rules proposed in this 

NPRM, coupled with FMCSA’s many 

other safety initiatives and assisted by 

the actions of an increasingly safetyconscious motor carrier industry, would 

result in continued reductions in 

fatigue-related CMV crashes and 

fatalities. Furthermore, with the 10 hour 

option, the proposed rule is intended to 

protect drivers from the serious health 

problems associated with excessively 

long work hours, without significantly 

compromising their ability to do their 

jobs and earn a living. 

2. A Succinct Statement of the 

Objectives of, and Legal Basis for, the 

Proposed Rule 

The objectives of the proposed rule 

are to reduce large-truck involved 

crashes—especially those where fatigue 

is a causative factor—and protect 

drivers against the adverse health 

impacts of working excessively long 

hours. This proposed rule is based on 

the authority of the Motor Carrier Act of 

1935 and the Motor Carrier Safety Act 

of 1984. See the Legal Basis section 

earlier in this document for a discussion 

of these two Acts. Before prescribing 

any regulations, FMCSA must also 

consider their ‘‘costs and benefits’’ (49 

U.S.C. 31136(c)(2)(A) and 31502(d)). 

Those factors are also discussed in this 

proposed rule. 

3. A Description of and, Where Feasible, 

an Estimate of the Number of Affected 

Small Entities to Which the Proposed 

Rule Will Apply 

The HOS regulations apply to both 

large and small motor carriers. The 

Small Business Administration 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 almost $200,000 in 

annual revenue per truck for firms with 

multiple power units,57 suggesting that 

a typical carrier that qualifies as a small 

business would have fewer than 128 

($25.5 million/$200,000) power units 

(i.e., trucks or tractors) in its fleet. Also 

using data from the 2007 Economic 

Census, FMCSA estimated that sole 

proprietorships earned approximately 

$85,000 in annual revenue.58

To determine the number of affected 

small entities, we used the analysis 

conducted by FMCSA for the Unified 

Carrier Registration (UCR) rule.59 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 10. 

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 may 

overstate the number of affected small 

entities because 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 would thus have 

other sources of revenue and fall under 

different NAICS codes. 

TABLE 10—NUMBER OF CARRIERS BY FLEET SIZE

[From FMCSA’s Analysis of the Unified Carrier Registration Plan Rule] 

Bracket Fleet size Number of 

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–More .. 292 

Total ................................................................................................................................................................... ...................... 433,535 


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60 In this analysis, we consider sole 

proprietorships separately due to the fact that these 

firms tend to have low revenues and are thus 

impacted by the proposed rule differently than 

larger firms. We have assumed that sole 

proprietorships have one power unit, but their 

defining characteristic is their average revenues and 

not the number of power units they have. 

61FMCSA, ‘‘SAFER Data: Average Drivers per 

Power Unit for TL Firms,’’ http:// 

safer.fmcsa.dot.gov/. 

62FMCSA, ‘‘SAFER Data: Average Drivers per 

Power Unit for TL Firms,’’ http:// 

safer.fmcsa.dot.gov/. 

Table 11 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 

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 128 power 

units are actually large. For example, a 

wholesaler with 128 trucks is certainly 

a large firm because it will have more 

than 100 employees. Other industries 

have thresholds as high as 1,500 fulltime equivalent employees (FTEs); a 

firm in one of these industries might 

rank as small with even more than 128 

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 

11, 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 would qualify as small 

businesses. 

TABLE 11—PRIVATE CARRIERS AND DRIVERS BY INDUSTRY

NAICS Industry SBA standard Number of 

drivers 

Drivers as percent of all employees Payroll as percent of revenues 

21 ........................ Mining, Quarrying, and Oil and 

Gas Extraction.

500 FTE ......................................... 29,900 4.17 10 

23 ........................ Construction ................................... $14 million to $33.5 million ............ 127,200 1.76 19 

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 and 

Waste Management and Remediation Services.

$7 million to $35.3 million .............. 132,300 1.64 46 

722 ...................... Food Services ................................ $7 million ........................................ 175,400 1.82 29 

81 ........................ Other Services ............................... $7 million ........................................ 44,000 0.80 24 

First Year Impacts on Small Entities 

Affected small entities would incur 

several types of costs as a result of the 

HOS rule provisions. First, as discussed 

in the HOS RIA, carriers would incur 

annual costs due to losses in 

productivity. As discussed in the HOS 

RIA, these productivity impacts are 

roughly $990 million per year for 

Option 2 and $480 million per year for 

Option 3. We divided this total 

productivity impact by the approximate 

number of long-haul drivers (1,600,000) 

to obtain an annual per driver 

productivity impact of approximately 

$620 for Option 2 and $400 for Option 

3. We then converted these per driver 

impacts to per power unit impacts 

(shown below in Tables 12 and 13). For 

sole proprietorships, we assumed for 

this analysis that these were single 

power unit firms and there was one 

driver per tractor. The total annual 

operational cost for sole proprietorships 

was thus $620 ($620 × 1) for Option 2 

and $300 ($300 × 1) for Option 3.60 For 

firms with multiple power units, this 

analysis assumes that multiple unit 

carriers have 1.1 drivers per power 

unit.61 The annual per power unit 

operational cost for firms with multiple 

power units was thus $682 ($620 × 1.1) 

for Option 2 and $330 ($300 × 1.1) for 

Option 3. 

In addition to the productivity 

impacts, each carrier would incur onetime costs for training in the 

requirements of the new rule. To 

estimate the training cost, we used 

information from Agency personnel 

who participated in previous HOS 

retraining efforts to determine that each 

driver would need to take a one-time 2- 

hour training course to ensure 

compliance with the new rule 

provisions. As described in Chapter 6 of 

the RIA, we used a loaded average 

hourly rate of $23.96 (wages plus fringe 

benefits) for the industry. The 2-hour 

training course thus resulted in a cost of 

approximately $48 per driver. 

Carriers would incur additional onetime costs for software reprogramming 

and other transition costs. As discussed 

in the RIA, reprogramming and other 

transition costs were estimated using 

information obtained from the HOS 

listening sessions conducted in various 

locations in early 2010. Based on 

information from these sessions, we 

assumed that the total one-time training, 

reprogramming, and other transition 

costs were about $200 per driver 

(including the $48 training cost 

discussed above). For sole 

proprietorships, we again assumed one 

driver per power unit for a total onetime cost of $200 per power unit. We 

view this estimate as conservative due 

to the fact that many firms will not 

incur any programming costs. We again 

assumed that carriers with multiple 

units have 1.1 drivers per power unit, 

for a total one-time cost of $220 per 

power unit.62 These one-time costs for 

sole proprietorships and multiple power 

unit firms are the same for Options 2 

and 3, and are shown below in Table 12. 

To estimate the first-year costs perpower unit for affected firms, the annual 

and one-time costs for Option 2 and 3 

were summed as shown in Tables 12 

and 13. For Option 2, this calculation 

resulted in a total first-year cost to sole 

proprietorships of $820 per power-unit 

in the first year and a total first-year cost 

to firms with multiple power units of 


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63To be conservative in assessing potential 

impacts, the revenues per power unit are based only 

upon for-hire firms (that is, those in Truck 

Transportation). Drivers make up only a small 

fraction of the labor force in other industries, which 

underlines the point that transportation is a small 

part of their operations. When the Agency has 

looked at the impact on private carriers in relation 

to their revenue in the past, the percentage impact 

of costs to private carriers as a share of revenue 

have been generally been an order of magnitude 

smaller than the impacts on for-hire trucking firms. 

$902 per power unit. For Option 3, this 

calculation resulted in a total first-year 

cost to sole proprietorships of $500 per 

power unit in the first year and a total 

first-year cost to firms with multiple 

power units of $550 per power unit. 

TABLE 12—FIRST-YEAR COSTS TO AFFECTED FIRMS PER POWER UNIT FOR OPTION 2 

Type of cost Cost per power unit 

(sole proprietorship) a

Cost per power unit 

(multiple power unit 

firm) a

Annual Operating Cost (A) ...................................................................................................... $620 $682 

One Time Training, Reprogramming, and Other Costs (B) .................................................... 200 220 

Total First Year Cost (A + B) ........................................................................................... 820 902

a FMCSA analysis. 

TABLE 13—FIRST-YEAR COSTS TO AFFECTED FIRMS PER POWER UNIT FOR OPTION 34 

Type of cost Cost per power unit 

(sole proprietorship) a

Cost per power unit 

(multiple power unit 

firm) a

Annual Operating Cost (A) ...................................................................................................... $300 $330 

One Time Training, Reprogramming, and Other Costs (B) .................................................... 200 220 

Total First Year Cost (A + B) ........................................................................................... 500 550

a FMCSA analysis. 

Next, we compared the estimated 

first-year costs to the average revenue 

for sole proprietorships and multiple 

power unit firms for Options 2 and 3 

(shown in Tables 14 and 15). As noted 

earlier, average revenues for different 

sized firms were taken from 2007 

Economic Census data.63 For Option 2, 

the first year costs of the proposed rule 

changes would be equal to 0.96 percent 

of average revenue for sole 

proprietorships and 0.45 percent of 

average revenue for multiple unit 

carriers. For Option 3, the first year 

costs of the proposed rule changes 

would be equal to 0.59 percent of 

average revenue for sole proprietorships 

and 0.28 percent of average revenue for 

multiple unit carriers. Thus, when 

looking only at first year costs for 

Options 2 and 3, the new HOS rule is 

not expected to have a significant 

impact on the average sole 

proprietorship or firm with multiple 

power units. Because of variability in 

both the first-year costs and the average 

revenues to which they are compared, 

however, the impact on firms would 

vary. It is thus likely that the impact of 

the first year costs would be higher for 

some carriers, rising to a level that could 

be considered significant. 

TABLE 14—IMPACT OF FIRST-YEAR COSTS ON AFFECTED FIRMS FOR OPTION 2 

Type of cost Sole proprietorships Multiple power unit firms 

First Year Cost Per Power Unit (A) a ....................................................................................... $820 $902 

Annual Revenue Per Power Unit (B) b .................................................................................... $85,239 $199,967 

First Year Cost Impact as a Percentage of Annual Revenue (A/B) ....................................... 0.96% 0.45% 

a FMCSA analysis. b FMCSA analysis of 2007 Economic Census data. 

TABLE 15—IMPACT OF FIRST-YEAR COSTS ON AFFECTED FIRMS FOR OPTION 3 

Type of cost Sole proprietorships Multiple power unit firms 

First Year Cost Per Power Unit (A) a ....................................................................................... $500 $552 

Annual Revenue Per Power Unit (B) b .................................................................................... $85,239 $199,967 

First Year Cost Impact as a Percentage of Annual Revenue (A/B) ....................................... 0.59% 0.28% 

a FMCSA analysis. b FMCSA analysis of 2007 Economic Census data. 

Annual Burden on Affected Small 

Entities 

To analyze the annual burden on 

affected small entities for Options 2 and 

3, we amortized the one-time costs over 

a 10-year period, assuming a 7 percent 

discount rate. As shown in Table 16 for 

Option 2, the sum of the annual 

operating costs and the amortized onetime costs resulted in an annual burden 

of $647 per year over 10 years for sole 

proprietorships and an annual burden of 

$711 per year over 10 years for firms 

with multiple power units. As shown in 

Table 17 for Option 3, the sum of the 


emcdonald on DSK2BSOYB1PROD with PROPOSALS2
82194 Federal Register / Vol. 75, No. 249 / Wednesday, December 29, 2010 / Proposed Rules 

annual operating costs and the 

amortized one-time costs resulted in an 

annual burden of $327 per year over 10 

years for sole proprietorships and an 

annual burden of $359 per year over 10 

years for firms with multiple power 

units. 

Next, we compared the annual burden 

to the average annual revenues of 

affected firms. As shown in Table 16, 

the annual costs of Option 2 are 0.76 

percent of average annual revenue for 

sole proprietorships and 0.36 percent of 

average revenue for carriers with 

multiple power units. As shown in 

Table 17, the annual costs of Option 3 

are 0.38 percent of average annual 

revenue for sole proprietorships and 

0.18 percent of average revenue for 

carriers with multiple power units. 

These percentages fall below what the 

Agency views as a reasonable threshold 

for a significant impact. However, as 

mentioned above, the impact may vary 

across carriers. Therefore, the annual 

impact of the regulations on some 

affected carriers may be significant in 

relation to their revenue. 

TABLE 16—ANNUAL IMPACT OF COSTS ON FIRMS OVER 10 YEARS FOR OPTION 2 

Type of cost Sole proprietorships Multiple power unit firms 

Annual Cost per Power Unit (One Time Costs Amortized Over 10 Years) (A) a ................... $647 $711 

Annual Revenue per Power Unit (B) b ..................................................................................... $85,239 $199,967 

Annual Cost Impact as a Percentage of Annual Revenue (A/B) ............................................ 0.76% 0.36% 

a FMCSA analysis. b FMCSA analysis of 2007 Economic Census data. 

TABLE 17—ANNUAL IMPACT OF COSTS ON FIRMS OVER 10 YEARS FOR OPTION 3 

Type of Cost Sole proprietorships Multiple power unit firms 

Annual Cost per Power Unit (One Time Costs Amortized Over 10 Years) (A) a ................... $327 $359 

Annual Revenue per Power Unit (B) b ..................................................................................... $85,239 $199,967 

Annual Cost Impact as a Percentage of Annual Revenue (A/B) ............................................ 0.38% 0.18% 

a FMCSA analysis. b FMCSA analysis of 2007 Economic Census data. 

4. Discussion of the Impact on Affected 

Small Entities 

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 

Options 2 and 3 are below 1 percent of 

revenues, as are the average annual 

costs when society spreads the costs 

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 

provisions are designed to rein in the 

most extreme 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 would 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 would incur the greatest 

costs would, therefore, be likely to have 

unusually large revenues per power unit 

as well. 

These heavily affected carriers would 

still be likely to face costs that exceed 

the threshold used to define significant 

impacts. On the other hand, they could 

also have unusually high rates of profit 

in the baseline; because their drivers are 

currently putting in the most hours of 

work per week, they are able to spread 

their fixed costs over more hours. In 

other words, most of the impacts of the 

new HOS rule are likely to fall on the 

carriers with the greatest revenues and 

profit potential in the industry. These 

circumstances should reduce concern 

that large numbers of small carriers 

would experience significant impacts. 

Another consideration in assessing 

the seriousness of the rule’s impacts is 

that the industry is now gaining strength 

after an unusually deep recession. That 

recession depressed demand for 

transportation services. As the economy 

recovers, demand for the motor carrier 

industry is likely to recover as well, 

meaning that the new HOS rule’s 

impacts could be experienced more as 

limitations on the potential growth in 

revenues than absolute reductions. 

In recognition of the fact that the rule 

may significantly impact small entities, 

FMCSA explored options for decreasing 

the burden on small entities. FMCSA 

did not consider the option of 

exempting small entities from this rule 

because doing so would substantially 

decrease the safety benefits of the rule 

due to the large number of drivers 

working for small entities. The rule 

addresses fatigue of individual drivers, 

which is not affected by the size of the 

employer. Several provisions of the 

proposed rule, including the restart 

provision, the opportunity for 16-hour 

driving windows, and the break 

provisions, however, were designed to 

afford maximum flexibility for drivers 

who work close to the legal maximum 

limits, thus reducing the productivity 

impacts on carriers while still realizing 

the safety benefits of the new rule. 

FMCSA expects small carriers and 

owner-operators to be among the main 

beneficiaries of these provisions. 

5. A Description of the Projected 

Reporting, Recordkeeping, and Other 

Compliance Requirements of the 

Proposed Rule, Including an Estimate of 

the Classes of Small Entities Which Will 

Be Subject to the Requirement and the 

Type of Professional Skills Necessary 

for the Preparation of the Report or 

Record 

The proposed 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 


emcdonald on DSK2BSOYB1PROD with PROPOSALS2
Federal Register / Vol. 75, No. 249 / Wednesday, December 29, 2010 / Proposed Rules 82195 

weekly on-duty and driving time, and 

submit these records of duty status to 

their employing motor carrier on a biweekly basis. This rule would 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 within the industry would be 

subject to these rules. The type and 

classes of these small entities are 

described in the previous section of this 

analysis. 

6. An Identification, to the Extent 

Practicable, of All Relevant Federal 

Rules Which May Duplicate, Overlap, or 

Conflict with this Proposal 

The Agency is unaware of any Federal 

rules which may duplicate, overlap, or 

conflict with the proposed rule. 

7. A Description of Any Significant 

Alternatives to the Proposed Rule 

Which Minimize Any Significant 

Impact on Small Entities 

The Agency did not identify any 

significant alternatives to the proposed 

rule that could lessen the burden on 

small entities without compromising its 

goals. 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 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 would also 

affect entities proportional to the 

number of drivers they employ, and 

therefore does 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 would 

therefore not place an undue 

recordkeeping or reporting burden on 

smaller entities. The Agency seeks 

public comment on all aspects of this 

Initial Regulatory Flexibility Analysis. 

C. Paperwork Reduction Act 

This proposed 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 NPRM 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 proposed 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)). 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 

proposed rule on hours of service and 

determined that it is not a privacysensitive 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 proposed 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 proposed 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 proposed 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 proposed 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. 


emcdonald on DSK2BSOYB1PROD with PROPOSALS2
82196 Federal Register / Vol. 75, No. 249 / Wednesday, December 29, 2010 / Proposed Rules 

L. Unfunded Mandate Reform Act 

The Unfunded Mandate 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 $140.3 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 proposed rule 

have been analyzed in the RIA. 

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, 

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 proposing to amend 49 CFR 

Chapter III, parts 385, 386, 390, and 395 

as set forth below: 

PART 385—SAFETY FITNESS 

PROCEDURES 

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. 

2. In Appendix B to part 385, amend 

section VII, List of Acute and Critical 

Violations, as follows: 

a. Revise the entries for § 395.3(a)(1) 

and § 395.3(a)(2); 

b. Add two entries for § 395.3(a)(3) 

and one entry for § 395.3(a)(4); and 

c. Remove the entries for § 395.3(c)(1), 

§ 395.3(c)(2), and § 395.1(o). 

Appendix B to Part 385—Explanation 

of Safety Rating Process 

* * * * * 

§ 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 10/11 consecutive hours 

prior to driving (critical). 

§ 395.3(a)(2) Requiring or permitting a 

property-carrying commercial motor vehicle 

driver to drive or be on duty after the end 

of the 14th hour after coming on duty and 

after the end of the 16th hour after coming 

on duty on 2 days out of the previous 168 

consecutive hours (critical). 

§ 395.3(a)(3) Requiring or permitting a 

property-carrying commercial motor vehicle 

driver to drive more than 10/11 hours 

(critical). 

§ 395.3(a)(3) Requiring or permitting a 

property-carrying commercial motor vehicle 

driver to drive if more than 7 hours have 

passed since the driver’s last off-duty or 

sleeper-berth period of at least 30 minutes 

(critical). 

§ 395.3(a)(4) Requiring or permitting a 

property-carrying commercial motor vehicle 

driver to be on duty more than 13 hours 

during a 14-hour or 16-hour driving window 

(critical). 

* * * * * 

3. Amend Appendix C to part 385 as 

follows: 

a. Revise the entries for § 395.3(a)(1) 

and § 395.3(a)(2); 

b. Add two entries for § 395.3(a)(3) 

and one entry for § 395.3(a)(4); 

c. Remove the entries for § 395.3(c)(1), 

§ 395.3(c)(2), and § 395.1(o). 

Appendix C to Part 385—Regulations 

Pertaining to Remedial Directives in 

Part 385, Subpart J 

* * * * * 

§ 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. 

§ 395.3(a)(2) Requiring or permitting a 

property-carrying commercial motor vehicle 

driver to drive or be on duty after the end 

of the 14th hour after coming on duty and 

after the end of the 16th hour after coming 

on duty on 2 days out of the previous 168 

consecutive hours. 

§ 395.3(a)(3) Requiring or permitting a 

property-carrying commercial motor vehicle 

driver to drive more than 10/11 hours. 

§ 395.3(a)(3) Requiring or permitting a 

property-carrying commercial motor vehicle 

driver to drive if more than 7 hours have 

passed since the driver’s last off-duty or 

sleeper-berth period of at least 30 minutes. 

§ 395.3(a)(4) Requiring or permitting a 

property-carrying commercial motor vehicle 

driver to be on duty more than 13 hours 

during a 14-hour or 16-hour driving window. 

* * * * * 

PART 386—RULES OF PRACTICE FOR 

MOTOR CARRIER, INTERMODAL 

EQUIPMENT PROVIDER, BROKER, 

FREIGHT FORWARDER, AND 

HAZARDOUS MATERIALS 

PROCEEDINGS 

4. The authority citation for part 386 

continues to read as follows: 

Authority: 49 U.S.C. 521, 5123, 13301, 

13902, 14915, 31132–31133, 31136, 31144, 

31151, 31502, 31504; 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; and 49 CFR 1.73. 

5. Amend Appendix B to part 386 by 

adding a new paragraph (a)(6) to read as 

follows: 

Appendix B to Part 386—Penalty 

Schedule; Violations and Maximum 

Civil 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 10/11-hour driving-time limit in 49 

CFR 395.3(a) or the 10-hour driving-time 

limit in 49 CFR 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 

6. The authority citation for part 390 

continues to read as follows: 

Authority: 49 U.S.C. 508, 13301, 13902, 

31132, 31133, 31136, 31144, 31151, 31502, 

31504; sec. 204, Pub. L. 104–88, 109 Stat. 

803, 941 (49 U.S.C. 701 note); sec. 114, Pub. 

L. 103–311, 108 Stat. 1673, 1677; sec. 212, 

217, 229, Pub. L. 106–159, 113 Stat. 1748, 

1766, 1767, 1773; sec. 4136, Pub. L. 109–59, 

119 Stat. 1144, 1745 and 49 CFR 1.73. 

7. Amend § 390.23, by revising 

paragraph (c)(2) introductory text to 

read as follows: 

§ 390.23 Relief from regulations. 

* * * * * 

(c) * * * 

(2) The driver has had at least 34 

consecutive hours off duty, including 

two consecutive periods from midnight 

to 6 a.m. when: 

* * * * * 


emcdonald on DSK2BSOYB1PROD with PROPOSALS2
Federal Register / Vol. 75, No. 249 / Wednesday, December 29, 2010 / Proposed Rules 82197 

PART 395—HOURS OF SERVICE OF 

DRIVERS 

8. The authority citation for part 395 

continues to read as follows: 

Authority: 49 U.S.C. 508, 13301, 13902, 

31133, 31136, 31502, 31504, and § 204, Pub. 

L. 104–88, 109 Stat. 803, 941 (49 U.S.C. 701 

note); Sec. 114, Pub. L. 103–311, 108 Stat. 

1673, 1677; Sec. 217, Pub. L. 106–159, 113 

Stat. 1748, 1767; and 49 CFR 1.73. 

9. Amend § 395.1 as follows: 

a. Revise paragraphs (b)(1), (d)(2), and 

(e)(1)(iv), (e)(2) introductory text, 

(e)(2)(v), (e)(2)(viii), (g)(1), and (g)(2)(ii); 

b. Remove and reserve paragraph (o); 

and 

c. Remove paragraph (q). 

§ 395.1 Scope of rules in this part. 

* * * * * 

(b) * * * 

(1) Adverse driving conditions. Except 

as provided in paragraph (h)(2) of this 

section, a driver who encounters 

adverse driving conditions, as defined 

in § 395.2, and cannot, because of those 

conditions, safely complete the run 

within the maximum driving time 

permitted by §§ 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 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. However, that driver may not 

drive or be permitted to drive— 

(i) For more than 12 hours in the 

aggregate following 10 consecutive 

hours off duty for drivers of propertycarrying commercial motor vehicles; 

(ii) After the end of the 14th or 16th 

hour since coming on duty following 10 

consecutive hours off duty for drivers of 

property-carrying commercial motor 

vehicles, pursuant to § 395.3(a)(2); 

(iii) For more than 12 hours in the 

aggregate following 8 consecutive hours 

off duty for drivers of passengercarrying commercial motor vehicles; or 

(iv) After he/she has been on duty 15 

hours following 8 consecutive hours off 

duty for drivers of passenger-carrying 

commercial motor vehicles. 

* * * * * 

(d) * * * 

(2) In the case of specially trained 

drivers of commercial motor vehicles 

which 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 

§§ 395.8. 395.15, and 395.16, 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 

calculation of the 14- or 16-hour duty 

period in § 395.3(a)(2). Specially trained 

drivers of such commercial motor 

vehicles are not eligible to use the 

provisions of § 395.1(e)(1). 

(e) * * * 

(1) * * * 

(iv)(A) A property-carrying 

commercial motor vehicle driver does 

not exceed 10/11 hours maximum 

driving time 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 § 395.3 

and § 395.8 and ineligible to use the 

provisions of § 395.1(e)(1) and (g) if: 

* * * * * 

(v) The driver does not drive more 

than 10 hours following at least 10 

consecutive hours off duty; 

* * * * * 

(viii) Any period of 7 or 8 consecutive 

days may end with the beginning of any 

off-duty period of 34 or more 

consecutive hours that includes two 

consecutive periods from midnight to 6 

a.m.; the beginning of an off-duty period 

of 34 or more consecutive hours must be 

at least 168 hours after the beginning of 

the last such off-duty period. 

* * * * * 

(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 §§ 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 10/11 

hours following one of the 10-hour offduty periods specified in paragraph 

(g)(1)(i)(A)(1) through (4) of this section; 

however, driving is permitted only if 

7 hours or less have passed since the 

driver’s last off-duty or sleeper-berth 

period of at least 30 minutes; and 

(C) May not be on duty for more than 

the 13-hour period in § 395.3(a)(4) or 

drive beyond the 14- or 16-hour driving 

window in § 395.3(a)(2) after coming on 

duty following one of the 10-hour offduty periods specified in paragraph 

(g)(1)(i)(A)(1)–(4) of this section; and 

(D) Must exclude from the calculation 

of the 14- or 16-hour driving window in 

§ 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 10/11-hour 

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- or 16-hour 

limit in § 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 10/11 hours; 

* * * * * 

(o) [Reserved] 

* * * * * 

10. Amend § 395.2 by revising the 

definition of ‘‘on duty time’’ to read as 

follows: 

§ 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: 


emcdonald on DSK2BSOYB1PROD with PROPOSALS2
82198 Federal Register / Vol. 75, No. 249 / Wednesday, December 29, 2010 / Proposed Rules 

(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; 

(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; 

(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. 

* * * * * 

11. Revise § 395.3 to read as follows: 

§ 395.3 Maximum driving time for 

property-carrying vehicles. 

(a) Except as otherwise provided in 

§ 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) Driving window. (i) In General.— 

A driver may drive only during a 

driving window of 14 consecutive hours 

after coming on duty following 10 

consecutive hours off duty. The driver 

may not drive after the end of the 

driving window without first taking 

10 consecutive hours off duty. 

(ii) Exception.—A driver may drive 

during a driving window of 16 

consecutive hours after coming on duty 

following 10 consecutive hours off duty 

on no more than 2 days out of the 

previous 168 consecutive hours. The 

driver may not drive after the end of the 

driving window without first taking 10 

consecutive hours off duty. 

(iii) Drivers who are on duty after the 

end of the 14th hour after coming on 

duty are deemed to have used a 16-hour 

driving window. 

(iv) Drivers must go off duty by the 

end of the 14th or 16th consecutive hour 

after coming on duty. 

(3) Driving time and rest breaks. A 

driver may drive a total of 10/11 hours 

during the on-duty period specified in 

paragraph (a)(4) of this section, but 

driving is permitted only if 7 hours or 

less have passed since the driver’s last 

off-duty or sleeper-berth period of at 

least 30 minutes. 

(4) On-duty period. A driver may be 

on duty no more than 13 hours during 

the 14-hour or 16-hour driving window. 

(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 propertycarrying 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) 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 

consecutive periods from midnight to 6 

a.m.; or 

(2) Any period of 8 consecutive days 

may end with the beginning of an offduty period of 34 or more consecutive 

hours that includes two consecutive 

periods from midnight to 6 a.m. 

(d) 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 offduty 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 20, 2010. 

Anne S. Ferro, 

Administrator. 

[FR Doc. 2010–32251 Filed 12–23–10; 11:15 am] 

BILLING CODE P 


emcdonald on DSK2BSOYB1PROD with PROPOSALS2