Hours of Service of Drivers

Federal RegisterDec 27, 2011

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DEPARTMENT OF TRANSPORTATION

Federal Motor Carrier Safety Administration

49 CFR Parts 385, 386, 390, and 395

[Docket No. FMCSA-2004-19608]

RIN 2126-AB26

Hours of Service of Drivers

AGENCY:

Federal Motor Carrier Safety Administration (FMCSA), DOT.

ACTION:

Final rule.

SUMMARY:

FMCSA revises the hours of service (HOS) regulations to limit the use of the 34-hour restart provision to once every 168 hours and to require that anyone using the 34-hour restart provision have as part of the restart two periods that include 1 a.m. to 5 a.m. It also includes a provision that allows truckers to drive if they have had a break of at least 30 minutes, at a time of their choosing, sometime within the previous 8 hours. This rule does not include a change to the daily driving limit because the Agency is unable to definitively demonstrate that a 10-hour limit—which it favored in the notice of proposed rulemaking (NPRM)—would have higher net benefits than an 11-hour limit. The current 11-hour limit is therefore unchanged at this time. The 60- and 70-hour limits are also unchanged. The purpose of the rule is to limit the ability of drivers to work the maximum number of hours currently allowed, or close to the maximum, on a continuing basis to reduce the possibility of driver fatigue. Long daily and weekly hours are associated with an increased risk of crashes and with the chronic health conditions associated with lack of sleep. These changes will affect only the small minority of drivers who regularly work the longer hours.

DATES:

Effective date:

February 27, 2012.

Compliance date:

The rule changes that affect Appendix B to Part 386—Penalty Schedule; Violations and Monetary Penalties; the oilfield exemption in § 395.1(d)(2); and the definition of on-duty time in § 395.2 must be complied with on the effective date. Compliance for all the other rule changes is not required until July 1, 2013.

FOR FURTHER INFORMATION CONTACT:

Mr. Thomas Yager, Chief, Driver and Carrier Operations Division, Federal Motor Carrier Safety Administration, U.S. Department of Transportation, 1200 New Jersey Avenue SE., Washington, DC 20590 (202) 366-4325.

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Summary

A. Overview

B. Proposed Rule

C. Final Rule

D. Summary of Economic Impacts

E. Overview of Major Comments and Agency Responses

II. Legal Basis

III. Background and Description of the Trucking Industry

IV. Discussion of All Comments

A. Safety

B. Economic Impacts

C. Sleep Loss and Chronic Fatigue

D. New Research Studies

E. Driving Time Limits

F. 30-Minute Break Provision

G. Restart

H. Duty Period/Driving Window

I. Paragraphs 395.1(e)(2) and (o)

J. On-Duty Definition

K. Penalties

L. Compliance Dates

M. Other Comments

N. Beyond the Scope

V. Section-by-Section Analysis

VI. Required Analyses

A. Executive Order 12866 and Executive Order 13563

B. Regulatory Flexibility Act

C. Paperwork Reduction Act

D. National Environmental Policy Act

E. Executive Order 13132 (Federalism)

F. Privacy Impact Assessment

G. Executive Order 12630 (Taking of Private Property)

H. Executive Order 12988 (Civil Justice Reform)

I. Executive Order 13045 (Protection of Children)

J. Executive Order 13211 (Energy Supply, Distribution, or Use)

K. Executive Order 12898 (Environmental Justice)

L. Unfunded Mandate Reform Act

VII. Bibliography

I. Summary

A. Overview

The goal of this rulemaking is to reduce excessively long work hours that increase both the risk of fatigue-related crashes and long-term health problems for drivers. A rule cannot ensure that drivers will be rested, but it can ensure that they have enough time off to obtain adequate rest on a daily and weekly basis. The objective of the rule, therefore, is to reduce both acute and chronic fatigue by limiting the maximum number of hours per day and week that the drivers can work.

The 2003 hours-of-service (HOS) rule shortened the driving window to 14 consecutive hours and increased the off-duty period from 8 to 10 hours, but increased driving time from 10 to 11 hours and allowed drivers to restart their duty time calculations whenever they took at least 34 consecutive hours off. Limiting the driving window and increasing the daily off-duty period reduced the risk that a driver would be driving so long after the start of the duty day that acute fatigue would be extreme. It also moved drivers toward a 24-hour daily clock, which is people's normal pattern, reducing the risk of fatigue caused from continually changing sleep periods. The 2003 rule, however, allowed drivers to work 14 hours without a break and to work 80 or more hours a week, a substantial increase from the previous rule, which allowed about 60 hours in 7 days.

Since the 2003 rule was promulgated, new research studies have demonstrated that long work hours, both daily and weekly, lead to reduced sleep and, in the absence of sufficient recovery time, chronic fatigue. Fatigued drivers have slowed reaction times and a reduced ability to assess situations quickly. The research has also shown that commercial motor vehicle (CMV) drivers (like most other people) are unable to assess their own fatigue levels accurately and are, therefore, often unaware that their performance has degraded. When driving an 80,000-pound CMV at highway speeds, any delay in reacting to a potentially dangerous situation can be deadly. In addition to the safety concerns, recent research has linked long work hours and the resulting curtailment of sleep to a range of serious health effects, particularly when combined with a job that is basically sedentary, like truck driving. These health conditions—including obesity, high blood pressure, other cardiovascular diseases, diabetes, and sleep apnea—not only shorten drivers' lives, but also can result in substantial ongoing medical costs and put drivers' medical certifications at risk. CMV drivers suffer from these conditions at a higher rate than the population as a whole.

Today's rule will reduce the risk of fatigue and fatigue-related crashes and the harm to driver health in several ways. While the rule allows a driver flexibility in when to take a mandatory 30 minute break, it prohibits a driver from driving if more than 8 hours have passed since the driver's last off-duty or sleeper berth break of at least 30 minutes; research indicates that such breaks alleviate fatigue and fatigue-related performance degradation. Because research has shown that long weekly work hours are associated with a higher risk of crashes, sleep loss, and negative health effects, the rule also limits the use of the restart to once a week, which, on average, will cut the maximum work week from 82 to 70 hours. The provision allows drivers to work intensely for one week, but will

require them to compensate by taking more time off in the following week. Research has long demonstrated that daytime sleep is shorter in duration and lower in quality than nighttime sleep. The rule requires any driver working long enough to need a restart to take off at least 34 consecutive hours that include 2 periods between 1 a.m. and 5 a.m., the window of circadian low. This provision will give those drivers who both routinely work at night and put in very long work weeks an opportunity to overcome the chronic fatigue that can build up when working nights.

FMCSA has been engaged in long-term rulemaking related to its hours of service regulations for commercial truck drivers. Like the Federal Aviation Administration (FAA), FMCSA is working to address the universality of factors that lead to fatigue. However, the FAA has taken a different approach in addressing fatigue risk among pilots than FMCSA has with respect to commercial truck drivers. This is because the two industries operate differently both in terms of the likely number of days the affected individuals work per month and the respective operating environments. For example, pilots regularly cross multiple time zones in a very short period time—something that is simply not possible in other modes of transportation. Additionally, pilots may work several days that are very long, but then be off for an extended period of time, a practice that naturally imposes a non-regulatory restorative rest opportunity. Finally, the nature of commercial flying is such that under typical conditions, the actual operation is likely to require intense concentration primarily during take-offs and landings, with a constant, but generally predictable level of concentration required for other phases of flight.

In contrast, commercial truck drivers face an environment where they are required to share the highways with drivers who have not received specialized training nor are they subject to the same regulatory constraints that pilots are subject to. This environment could logically lead to a regulatory approach with different fatigue mitigators for daytime operations on congested highways, compared to nighttime operations, where the roads are less crowded but the risk of fatigue is greater.

In summary, the final rule will reduce the likelihood of driver fatigue, fatigue-related crashes, and fatigue-related health effects. Although crash rates have been falling, thousands of people are still injured and killed in truck crashes each year, including hundreds of truck drivers. This rule will address one of the causes of those crashes. The Agency estimates that the benefits of the rule (reduction in crashes and improved driver health) will outweigh the costs. The cost of the rule represents a small fraction of one percent of trucking industry revenues and is the cost-equivalent of less than a 3 cent-a-gallon increase in the price of diesel fuel to the long-haul industry.

B. Proposed Rule

On December 29, 2010, FMCSA published a notice of proposed rulemaking (NPRM) to revise the HOS rules (75 FR 82170). The Agency sought comment on both a 10- and an 11-hour daily driving limit. The NPRM proposed to retain the 34-hour restart, but with two qualifications: The restart must include two consecutive periods between midnight and 6 a.m. and could be used only once every 168 hours (7 days). It also proposed that drivers be limited to 13 hours on duty in each 14-hour driving window. Many drivers would be required to take at least one half-hour break during their work shift. FMCSA also proposed that twice a week, drivers would be allowed to extend the driving window to 16 hours, but could not work more than a maximum of 13 hours in that time. FMCSA also proposed changing the definition of on-duty time to allow team drivers to log 2 hours in the passenger seat before or after an 8-hour period in the sleeper berth as off-duty time and to allow drivers resting in a parked CMV to count that time as off duty. FMCSA would also have clarified the oilfield exemption and proposed a provision to allow, but not require, FMCSA to impose maximum penalties if the driving-time limit was exceeded by 3 hours. The NPRM included a long discussion of the research on fatigue and on issues related to long hours, fatigue, and health.

On May 9, 2011, FMCSA reopened the comment period to accept comments on four studies related to the HOS proposal (76 FR 26681).

C. Final Rule

Although the NPRM proposed both a 10- and an 11-hour daily driving limit, the Agency stated that it favored a 10-hour limit. However, this final rule does not adopt any change in the limit on daily driving time; the current 11-hour limit therefore remains unchanged.

In the course of this rulemaking, FMCSA examined many studies on the relationship between work hours and health and safety, both in trucking and other industries; reviewed the comments and information submitted to the docket, mostly in opposition to a 10-hour driving limit; and completed elaborate analyses in accordance with Presidential Executive Order 13563, issued January 18, 2011, ” Improving Regulation and Regulatory Review,” [76 FR 3821, January 21, 2011] of the costs and benefits to health and safety of 9-, 10-, and 11-hour driving limits.

9-Hour Driving Limit.

The Agency found that a 9-hour driving limit generally has negative net benefits (

i.e.,

its costs exceed its benefits). In most cases the 11-hour limit has positive net benefits. For these reasons, the Agency has not adopted a 9-hour driving limit.

10-Hour Driving Limit.

The 10-hour limit has positive benefits in approximately half the cases, with the 11-hour limit having substantially higher net benefits than the 10-hour limit in most cases. A 10-hour limit, on the other hand, might save more lives and prevent more crashes than an 11-hour limit, but at a higher cost.

The research literature on fatigue in the motor carrier industry generally shows that crash risk increases with work hours, both daily and weekly. The available data, however, are not sufficiently robust to yield a statistically significant distinction between the crash risk associated with any two adjacent hours of work.

In the absence of compelling scientific evidence demonstrating the safety benefits of a 10-hour driving limit, as opposed to an 11-hour limit, and confronted with strong evidence that an 11-hour limit could well provide higher net benefits, the Agency has concluded that adequate and reasonable grounds under the Administrative Procedure Act for adopting a new regulation on this issue do not yet exist and that the current driving limit should therefore be allowed to stand for now. This is not to say that FMCSA is foreclosing the possibility of action on this subject; future research may provide a basis for reconsidering the daily driving limit. Consistent with Executive Order 13563, which directs agencies to “measure, and seek to improve, the actual results of regulatory requirements,” FMCSA is committed to conducting a comprehensive analysis of the relative crash risk by driving hour and the impact of the changes in the HOS provisions in today's final rule. The Agency plans to match data collected from driver logs with crash information to determine the level of crash risk by hours of driving. The Agency also plans to estimate, for similarly situated drivers, the difference between crash risk after restarts that include two nights and those that do not. Additionally, the Agency is committed to conducting

periodic driver surveys to longitudinally track how the changes in the HOS provisions, such as the two-night restart, have impacted sleep patterns and aspects of driver fatigue and performance. FMCSA will work with the Office of Management and Budget (OMB) on the methodologies of these new statistical data collections. These efforts will build on several planned and ongoing FMCSA driver fatigue-related studies such as the on-board monitoring field test/naturalistic data collection, split sleep study, driver recovery and napping study, and the planned new large truck crash causation study.

This decision also is consistent with the President's E.O. 13563 and his concurrent memorandum for the heads of executive departments and agencies entitled “Regulatory Flexibility, Small Business, and Job Creation” [76 FR 3827, January 21, 2011]. As the President stated in the latter document, “My Administration is firmly committed to eliminating excessive and unjustified burdens on small businesses, and to ensuring that regulations are designed with careful consideration of their effects, including their cumulative effects, on small businesses.” This order is particularly important for the trucking industry, which has a higher percentage of small businesses than many other segments of the U.S. economy.

Thirty-Minute Break.

In response to commenters' concerns, FMCSA adopts a slightly modified form of the break proposed in the NPRM. Research with drivers and in other industrial sectors indicates that the risk of accidents falls substantially after a break, with off-duty breaks providing the greatest reduction in risk. The final rule requires that if more than 8 consecutive hours on duty—compared to 7 hours in the NPRM—have passed since the last off-duty (or sleeper-berth) period of at least half an hour, a driver must take a break of at least 30 minutes before driving. For example, if the driver started driving immediately after coming on duty, he or she could drive for 8 consecutive hours, take a half-hour break, and then drive another 3 hours, for a total of 11 hours. Alternatively, this driver could drive for 3 hours, take a half-hour break, and then drive another 8 hours, for a total of 11 hours. In other words, this driver could take the required break anywhere between the 3rd and 8th hour after coming on duty. A driver who plans to drive until the end of the 14th hour and wants to take only one break will need to take a break between the 6th and 8th hour after coming on duty. Drivers will have great flexibility in deciding when to take the break. By postponing the latest point at which the break can be taken from the 7th to the 8th hour, the rule will make it significantly easier for team drivers to fit the break into their schedules. To address an issue raised by commenters, FMCSA has also added an exception for drivers of CMVs carrying Division 1.1, 1.2, or 1.3 explosives to allow them to count on-duty time spent attending the CMV, but doing no other on-duty work, toward the break.

14-Hour Driving Window.

The maximum driving window will continue to be 14 consecutive hours after coming on duty. To address commenters' concerns about complexity, FMCSA has dropped the proposed 13-hour limit for on-duty time within the 14 hours to simplify the rule. Because of the break provision, drivers will be able to work 13.5 hours in the 14 hour period (if they are driving after the 8th hour on duty).

Mandatory Off-Duty Requirement at the End of the Driving Window.

FMCSA has not adopted the proposal that drivers be required to go off-duty at the end of the 14th hour. Neither the costs nor the benefits of the provision could be adequately analyzed.

Twice Weekly Extension of the Driving Window.

FMCSA did not adopt the proposed extension of the duty period to 16 hours twice a week. The same new research on drivers since the NPRM was completed indicates this provision should not be adopted. (See Section IV. “Discussion of All Comments” D. “New Research Studies” below.) Driving in the 16th hour after coming on duty entails a sharply higher risk of crashes than driving in early hours of a duty day. In addition, industry commenters were divided on the provision and generally skeptical that the provision would be useful.

The final rule retains provisions in paragraphs (e)(2) and (o) of § 395.1, which apply to local and regional operations. The NPRM sought comments on eliminating these paragraphs because they might have caused confusion with the proposed 16-hour provision. Because FMCSA has dropped the proposed 16-hour provision, the concerns about confusion are moot.

Restart Provisions.

The final rule adopts the restart provision with one variation. The restart must cover at least 34 consecutive hours and include at least two periods between 1 a.m. and 5 a.m., not two periods between midnight and 6 a.m. as proposed in the NPRM. Although both alternatives cover most estimates of when the window of circadian low occurs, the 4-hour period addresses concerns drivers raised in the comment period by giving drivers greater flexibility in ending and beginning the restart than the proposed 6-hour period. This provision does not affect day drivers, who always get two such periods in a 34-hour restart, but ensures that night drivers have an opportunity for 2 nights of restorative sleep when they are working longer hours. The 2-night provision does not affect drivers who are not using the restart to work extra hours. The Agency believes the costs are low compared to other provisions considered in this rulemaking. Only drivers who drive nights and work more than 60 or 70 hours in a week will be impacted. The nighttime operations of the major Less-than-Truckload (LTL) carriers should be minimally impacted, as their drivers generally receive 2 days off duty a week. Drivers who will be impacted by this provision work heavy and irregular schedules that include some nighttime driving.

FMCSA adopts the proposed provision to limit the use of the restart to once every 168 hours (7 days); this allows drivers to work long hours (81 hours) in 1 week but requires them to compensate in the subsequent week by taking extra time off. The limitation reduces maximum time during which a driver may drive up to an average of 70 hours in 7 days, a decrease from the 82-hour average allowed under the 2003 rule. The purpose of the rule change is to limit work to no more than 70 hours a week on average. Working long daily and weekly hours on a continuing basis is associated with chronic fatigue, a high risk of crashes, and a number of serious chronic health conditions.

This final rule adopts the definition of on-duty time as proposed except to add a reference to § 397.5. The final rule also adopts the clarification of the oilfield exemption and penalty provisions.

A more in-depth rationale for each of these provisions is presented in the responses to comments in Section IV “Discussion of All Comments” of this preamble.

D. Summary of Economic Impacts

The Regulatory Impact Analysis (RIA) analyzed three options beyond the baseline (no change) option. Option 3 has an 11-hour driving-time limit; it would require the driver to take a rest break during the day and reduce the weekly maximum driving and on-duty time theoretically achievable. Options 2 and 4 are identical to Option 3 in all respects except for the amount of driving time allowed. Option 2 has an 10-hour driving-time limit, while Option 4 has a 9-hour driving-time limit. Option 2 (10 hours) would have a productivity impact of approximately

2.7 percent. That is, we estimate that productivity in the industry would be reduced by 2.7 percent due to adoption of this option. Option 3 (11 hours) would have a productivity impact of 1.2 percent. The Agency's cost estimate for Option 3 is less than one third of one percent of industry revenues. Option 4 (9 hours) would involve much higher costs. Tables 1 and 2 provide a summary of the estimated costs, benefits, and net benefits at 3 and 7 percent discount rates. The RIA is discussed in Section VI “Required Analyses” A. “Executive Order 12866 and Executive Order 13563” of this preamble and is available in the docket.

The RIA also estimated the impacts of the HOS rule components individually. To estimate the impacts of the rule provisions, we consider the overlapping effects of the individual rule components to ensure that the impacts of one provision are not also attributed to a second provision. Because this analysis accounts for the individual impact of the rule provisions, the sum of the individual provisions is greater than the combined impact of the rule provisions. Table 3 summarizes these differences, rounded to the nearest million to demonstrate the similarity in net benefits for some of these alternatives. Option 3, with all three provisions analyzed as a package, is shown to have net benefits of $205 million. This calculation does not include the $40 million FMCSA has estimated for reprogramming costs. That package with the 2 night provision removed (that is, including only the 7 day restart provision and the 30 minute break) appears to have marginally greater net benefits, at $206 million. Not shown in the table, however, are the substantial unmonetized benefits the 2 night provision is expected to have due to the circadian advantages of nighttime sleep. As noted in Section 6.4 of the RIA, these additional benefits were too complex to be quantified and monetized reliably, but could only be beneficial both to driver health and to highway safety. They would almost certainly be large enough, though, to ensure that the net benefits of the rule are improved by the inclusion of the 2 night provision. Similarly, the net benefits of a package that excluded the 30 minute break provision appears to be slightly greater than the net benefits of the Option 3 package, at $206 million. Again, the 30 minute break provision is expected to provide very substantial crash reduction benefits that could not be included in the analysis. These benefits, as noted in Section 6.4, are related to the short-term reductions in crashes provided by the break's restorative effects on alertness. If these short-term benefits could be monetized and added to the break's effects on cumulative fatigue, they would almost certainly show it to be a cost-beneficial addition to the rule. Table 3 also presents the difference for each option when the provisions are considered separately or as a package.

These tables also make clear that under most assumptions about current sleep levels, moving to 10-hour driving time would result in lower net benefits, relative to an 11-hour driving time. Comparing Option 2 to Option 3, allowing only 10 hours of driving would increase costs substantially, without a commensurate increase in benefits.

Table 1—Summary of Annualized Costs and Benefits for Rule Options (7 Percent Discount Rate)

[Millions 2008$]

Option 2: 10 hours of driving allowed

Option 3: 11 hours of driving allowed

Option 4: 9 hours of driving allowed

Total Costs

$1,000

$470

$2,290

Benefits with Low Sleep

1,410

910

2,240

Benefits with Medium Sleep

980

630

1,500

Benefits with High Sleep

550

350

770

Net Benefits with Low Sleep

400

440

−50

Net Benefits with Medium Sleep

−20

160

−790

Net Benefits with High Sleep

−450

−120

−1,520

Note:

Totals do not add due to rounding.

Table 2—Summary of Annualized Costs and Benefits for Rule Options (3 Percent Discount Rate)

[Millions 2008$]

Option 2: 10 hours of driving allowed

Option 3: 11 hours of driving allowed

Option 4: 9 hours of driving allowed

Total Costs

$1,000

$470

$2,290

Benefits with Low Sleep

1,690

1,130

2,620

Benefits with Medium Sleep

1,110

750

1,630

Benefits with High Sleep

530

370

630

Net Benefits with Low Sleep

690

660

340

Net Benefits with Medium Sleep

110

280

660

Net Benefits with High Sleep

−470

−90

−1,650

Note:

Totals do not add due to rounding.

Table 3—Component and Interaction Costs, Benefits and Net Benefits For Option 3 (11-Hour Driving Allowed)

[Millions 2008$]

Change from current rule baseline

Costs *

Safety benefits (13 percent

fatigue)

Health benefits (medium sleep level, 7

percent

discounting)

Net benefits *

7-day restart alone

$342

$227

$318

$204

2-night restart alone

30-minute break alone

Sum of Option 3 provisions, taken separately

487

334

450

297

Option 3 analyzed as a package

426

282

349

205

Overlap among Option 3 provisions (difference between sum of separate provisions and package)

102

Sum of 7 day and 2 night provisions, taken separately

393

262

356

225

7 day and 2 night provisions, analyzed as a package

393

260

340

206

Overlap between 7 day and 2 night provisions (difference between sum of separate provisions and package)

Sum of 7 day and 30 minute provisions, taken separately

436

299

412

276

7 day and 30 minute provisions, analyzed as a package

374

253

328

206

Overlap between 7 day and 30 minute provisions (difference between sum of separate provisions and package)

Sum of 2 night and 30 minute provisions, taken separately

145

107

132

2 night and 30 minute provisions, analyzed as a package

145

127

Overlap between 2 night and 30 minute provisions (difference between sum of separate provisions and package)

* Does not include the $40 million in reprogramming costs.

Note:

Totals do not add due to rounding.

E. Overview of Major Comments and Agency Responses

FMCSA held a public listening session and an online comment and question forum from noon to midnight on February 17, 2011, and accepted comments, until June 8, 2011, on the NPRM and on four studies later posted to the docket. The Agency received about 21,100 unique comments, mostly from drivers, carriers, and industry associations. After FMCSA reopened the comment period on May 9, 2011, it received 14 comments on the four studies discussed in that notice. A summary of the comments and the Agency's responses are presented in Section IV “Discussion of All Comments” of this preamble. Table 4 presents the data on the number and type of commenters. Table 5 presents the number of comments on each issue. As indicated in the table, no single rule provision drew comments from a majority of commenters.

Table 4—Analyzed Submissions by Commenter Type

Commenter type

Number of

unique

submissions

Number of

form letter copies

Total number of submissions

Drivers

18,875

2,209

21,084

Owner-Operators

273

276

Carriers

846

238

1,084

Individual Citizens

740

334

1,074

Other Industry

Trucking Associations

Other Trade Associations

Federal Agency

Federal Elected Official

State Government

Law Enforcement

Safety Advocacy Group

Other Advocacy Group

Anonymous

113

123

Other

Total

21,106

2,806

23,912

Note:

Totals do not include 546 non-germane, non-responsive, or duplicate submissions.

Table 5—Issues Addressed by Commenters

Issue

Number of unique

submissions

Generally agree or disagree with the proposed rule:

Agree (w/o substantive comment)

601

Disagree (w/o substantive comment)

8,028

Driving time

4,633

Breaks

2,569

Duty time

3,112

Driving window

598

Restart

4,776

On-duty definition:

Support change to definition

109

Oppose change to definition

Other comments on definition of on-duty

Sleeper berth:

Oppose current rule (want shorter splits)

594

Oppose current rule (oppose any splits)

Other comments on sleeper berth use

186

Penalties

Changes in § 395.1(e)(2) and (o):

§ 395.1(e)(2)

§ 395(o)

Compliance dates

Cost-benefit analyses

388

Impacts on the economy

10,343

Comments on fatigue research presented

Comments on additional fatigue studies posted on May 6, 2011

Comments on health research presented

Comments beyond the scope of the rule:

Parking

1,028

Payment by mile

184

Shippers

550

Electronic On-Board Recorders (EOBRs)

499

Other out-of-scope issues

785

Other comments

679

Request extension of comment period

Request public meetings/outreach

Oilfield exemption

10-hour off-duty time (shorter, longer)

205

One-size-fits-all (different rules for teams, locals,

etc.

)

442

The National Transportation Safety Board (NTSB), the National Institute of Occupational Safety and Health (NIOSH), and safety advocacy groups generally supported the rule, as did many of the citizens who commented. The industry, however, almost uniformly opposed the proposed changes. The industry commenters made two overarching arguments in opposing the provisions. First, they argued that the industry has never been safer, as indicated by the declines in crashes and crash rates and, therefore, that the 2003 rule has at least not made the industry less safe. Second, they stated that the rule changes would impose substantial costs on the industry, make night deliveries difficult, increase congestion, and lower driver incomes.

The industry also took the position that the 11th hour of driving time is used far less than FMCSA assumed in its economic analysis, that most drivers use the 34-hour restart provision to make recordkeeping easier and for flexibility, not to work the maximum number of hours, and that drivers already take breaks. The industry stated that the data do not support the claim that the 11th hour of driving represents a higher risk than the 10th.

FMCSA acknowledged the decline in crashes and crash rates in the NPRM, but stated then, and reiterates now, that the decline in crashes and crash rates for both trucks and cars started in the late 1970s and has continued for both types of vehicles. The declines tend to be sharper during periods of economic recession, but other factors, such as improved vehicle and road design, are generally considered to have contributed to reductions. Furthermore, the significant decrease in truck crashes may not necessarily translate into significant decreases in fatigue-related crashes. FMCSA believes that the 2003 rule, which limited the duty period and lengthened the off-duty period, has certainly not diminished safety, but the recent declines in crashes cannot be specifically attributed to that rule. More importantly, despite the improvement, 3,380 people were killed in truck crashes in 2009 (including 503 CMV drivers) and 74,000 were injured. Based on preliminary reports from the National Highway Traffic Safety Administration (NHTSA), the number of fatalities for truck-related crashes in 2010 rose by 8.7 percent to 3,675. Although historically low, the numbers are still far too high.

On the economic impact of the rule, industry comments and claims were internally contradictory (see Section IV. “Discussion of All Comments,” B. “Economic Impacts” of this preamble for a detailed discussion). The American Trucking Associations (ATA), other industry associations, carriers, and the economic analysis commissioned by ATA (Edgeworth)

argued that

FMCSA's economic analysis had overstated the use of the 11th hour and restart provisions. ATA and other industry commenters argued that the low use of the provisions meant that fatigue was not a problem, but that changing the provisions would impose high costs. The Edgeworth study submitted by ATA, however, recognized that if the use of the provisions was less than FMCSA had estimated, both the costs and benefits of the rule would also be lower than FMCSA had estimated.

References to studies, reports, or other publications mentioned in this final rule use only

the lead author's last name or another short descriptive reference that may be used by the reader to reference the material in the “Bibliography” in Section VII at the end of this preamble. The lead author's professional titles or degrees are not shown. For example, Edgeworth references a data source described fully in the bibliography section later in this final rule.

In September 2010, ATA submitted data to the HOS docket based on analyses of duty time for drivers. In the first sample, ATA looked at records for 3 months for over 118,000 drivers, mostly from the truckload sector; the data indicated that drivers were averaging 43.6 hours on duty in 7 days. In a smaller data set (149 drivers and records for 1 month), ATA reported that the drivers averaged 57.5 hours on duty in 8 days (which is the equivalent to 50.3 hours in 7 days). ATA concluded that drivers were using the restart not to maximize hours, but rather to take extended off-duty periods.

If drivers are working as little as the ATA data and other comments indicate, the changes to the restart provision will have little impact because the provision only affects drivers who are working longer hours week after week. The restart does not simplify bookkeeping. Unless a driver knows that he is working less than 60 hours a week (

e.g.,

a regular 10-hour day, 5 days a week), he must keep a running 7- or 8-day total of on-duty hours to be sure he is within the limits regardless of the restart provision or the changes this rule makes to it. If a driver takes 34 hours or more off, he simply has a new point from which to keep the total, but he still needs to keep track of his total hours if he could be pressing the limits. Many drivers do these calculations in their heads without needing to write them down. FMCSA believes that this provision will not result in a paperwork burden increase. If drivers are not using the restart to gain hours of work, their productivity will not be affected by today's rule. No one needs the restart to take the “extended off-duty period” cited by ATA; the restart is only useful for drivers who are trying to minimize their off-duty time. Even those drivers will not have their work seriously curtailed in a single week. Under today's rule, a driver will still be able to work up to 81 hours in a single week and will be able to average 70 hours of work a week over time.

Stephenson, B., ATA, email to Tom Yager, FMCSA, September 8, 2010. FMCSA-2004-19608-4026.

Industry claims that the 2-night requirement for drivers would affect nighttime deliveries and increase congestion are also unsupported. Given ATA's data, the substantial majority of drivers do not need the restart and would not be subject to the requirement. These drivers can continue to work their usual schedules, including making deliveries at night 7 days a week. Even drivers who are working maximum schedules will still be able to drive and make deliveries at night 5 days a week.

In general, although many industry commenters stated that they would suffer substantial economic impacts, they submitted no data or explanations. The rule will reduce maximum weekly driving time by no more than 5 percent for the few drivers who drive longer hours. It is difficult to see how these provisions, if they are used as little as industry stated, could produce reductions in revenues of 10 to 40 percent as some commenters claimed, particularly given that drivers who do work the longest hours rarely are able to do so on a continuing basis. On the issue of driver incomes, only those drivers working the longest hours will lose income and then only if they have been able to drive long hours in consecutive weeks.

On the health benefits of the rule, ATA submitted the opinion of one researcher who disputed the Agency's use of data in a study that the researcher co-authored dealing with the effect on mortality of improvements in sleep (Cappuccio). The lead author of the same study, however, supported FMCSA's analysis and considered it conservative (Ferrie). Industry commenters did not otherwise attempt to address the issue of the health impacts of long work hours and sleep loss. FMCSA notes that the industry chose to ignore an ever increasing body of research that links long hours of work to sleep loss and an increased risk of obesity, diabetes, and cardiovascular diseases.

Similarly, on the risk of long hours in general, the industry dismissed the many studies, including the new research discussed below, that have found that risk increases with hours worked. Industry did not submit any statistically usable data on their own crash rates. NIOSH drew attention to the considerable body of research in other sectors that has also found that risk increases with hours worked. Like workers in other sectors, drivers are susceptible to fatigue, and, therefore, these other studies should be considered in weighing the evidence for increasing risk.

In summary, the motor carrier industry did not provide evidence to support the dire economic consequences it claimed would flow from the Agency's HOS proposal. FMCSA believes that the changes adopted today are clearly supported by the evidence on the risk of fatigue and fatigue-related crashes associated with long daily and weekly hours, on the loss of sleep associated with long work hours, and the health effects associated with sleep loss.

II. Legal Basis

This rule is based on the authority of the Motor Carrier Act of 1935 and the Motor Carrier Safety Act of 1984 (1984 Act). The Motor Carrier Act of 1935 provides that “The Secretary of Transportation may prescribe requirements for (1) qualifications and maximum hours of service of employees of, and safety of operation and equipment of, a motor carrier; and, (2) qualifications and maximum hours of service of employees of, and standards of equipment of, a motor private carrier, when needed to promote safety of operation” (section 31502(b) of Title 49 of the United States Code (49 U.S.C.)).

The HOS regulations promulgated today concern the “maximum hours of service of employees of * * * a motor carrier” (49 U.S.C. 31502(b)(1)) and the “maximum hours of service of employees of * * * a motor private carrier” (49 U.S.C. 31502(b)(2)). The adoption and enforcement of such rules were specifically authorized by the Motor Carrier Act of 1935. This rule rests on that authority.

The 1984 Act provides concurrent authority to regulate drivers, motor carriers, and vehicle equipment. It requires the Secretary of Transportation to “prescribe regulations on commercial motor vehicle safety. The regulations shall prescribe minimum safety standards for commercial motor vehicles.” Although this authority is very broad, the 1984 Act also includes specific requirements: “At a minimum, the regulations shall ensure that (1) commercial motor vehicles are maintained, equipped, loaded, and operated safely; (2) the responsibilities imposed on operators of commercial motor vehicles do not impair their ability to operate the vehicles safely; (3) the physical condition of operators of commercial motor vehicles is adequate to enable them to operate the vehicles

safely; and (4) the operation of commercial motor vehicles does not have a deleterious effect on the physical condition of the operators” (49 U.S.C. 31136(a)). This rule would improve both highway safety and the health of CMV drivers.

This rule is also based on the authority of the 1984 Act and addresses the specific mandates of 49 U.S.C. 31136(a)(2), (3), and (4). Section 31136(a)(1) mainly addresses the mechanical condition of CMVs, a subject not included in this rulemaking. To the extent that the phrase “operated safely” in paragraph (a)(1) encompasses safe driving, this rule also addresses that mandate.

Before prescribing any regulations, FMCSA must also consider their “costs and benefits” (49 U.S.C. 31136(c)(2)(A) and 31502(d)). Those factors are also discussed in this rule.

III. Background and Description of the Trucking Industry

The history of the HOS regulations has been discussed at length in previous rulemakings and will not be repeated here. See the May 2, 2000, NPRM for a detailed history of the earlier provisions (65 FR 25540) and the December 29, 2010, NPRM of this final rule for the more recent history (75 FR 82170).

FMCSA held a total of five public listening sessions prior to publishing the NPRM as well as one session after publication to gather information and opinions. These listening sessions were webcast, the Agency accepted calls during the sessions, and the Agency held an online comment and question forum on February 17, 2011, from noon to midnight to give more people a chance to participate. Transcripts of the listening sessions and the online comment and question forum are in the docket.

As noted above, more than 21,000 comments were submitted to the docket. Each comment was read and the positions of commenters on each issue they addressed were logged.

Transcripts of the listening sessions and the online comment and question forum may be found in the online docket on

www.regulations.gov

at:

a. January 19, 2010 Listening Session—FMCSA-2004-19608-3854.

b. January 22, 2010 Listening Session—FMCSA-2004-19608-3860.

c. January 25, 2010 Listening Session—FMCSA-2004-19608-3855.

d. January 28, 2010 Listening Session—FMCSA-2004-19608-3856.

e. March 26, 2010 Listening Session—FMCSA-2004-19608-3904.

f. February 17, 2011 Listening Session and Online Comment and Question Forum—FMCSA-2004-19608-9393.

Trucking Industry

The trucking industry is comprised of hundreds of thousands of carriers and millions of drivers moving goods locally or in long hauls between cities. The industry is diverse, and different sectors have different operational characteristics. The industry can be divided in a number of ways: Private versus for-hire; truckload versus less than truckload (LTL); long-haul versus short-haul. Private carriers are not trucking firms; they are manufacturers, distributors, or retailers that move their own goods among factories, distribution centers (warehouses), and retail outlets. Their drivers generally operate on a regular basis over routes set by the locations of their own facilities and those of their customers. For-hire carriers are in the transport business; they move goods for their customers. An LTL carrier usually picks up and delivers small shipments in a local area served by one of its terminals. Shipments are consolidated into loads for large trucks that make long (line-haul) runs to the firm's terminals in other areas. Moves between terminals are almost always overnight on regular routes. The goods moved overnight are delivered the next day by the local drivers at the destination terminal. The dominant pattern for line-haul drivers in LTL operations is driving five nights a week with the weekend (or at least 2 consecutive days) at home. Some firms will have one group of drivers working Monday through Friday nights and another group working Sunday through Thursday nights. Daytime driving sometimes occurs when, for example, a trailer is to be moved to a terminal that cannot be reached in a single, overnight run.

The truckload carriers typically pick up a full load from a shipper and move it directly to the receiver of the goods. Some of their business is regular and predictable under contracts or less formal agreements. Much of their business is almost random in nature, transportation from one place to another being booked and sold on a daily basis. Drivers in random service may not know where they will be at the end of each day. Their runs are often made by day, but many also require nighttime driving. Short-haul drivers operate within a local area; most are not exclusively nighttime drivers. Their routes may vary day by day, but they are always in the same general area. They may spend a good part of each day loading and unloading at multiple locations. Although there are exceptions, most long-haul drivers do not load or unload the cargo.

The various sectors are affected by different parts of the HOS rules. Most short-haul carriers do not use all of the allowable driving hours because they spend a good part of each day loading and unloading the truck to make local deliveries. These drivers also generally work 5 days per week and less than 12 hours a day, which makes the restart unnecessary. The local part of LTL operations has a similar work pattern. The line-haul LTL runs are between terminals located at the outer edges of metropolitan areas or in smaller cities. Like local drivers, except in peak season, they usually work 5 days a week. Private carriage is almost always limited to trips of less than 500 miles or 10 hours of driving. There are far more long runs in the truckload sector, but even this sector moves much of its cargo less than 500 miles. The carriers most affected by the HOS rules are the truckload carriers that operate most or all of the time on a random basis, picking up a load for delivery without knowing where the next load will be.

IV. Discussion of All Comments

FMCSA received more than 20,000 comments, but no single provision of the NPRM drew responses from a majority of the commenters. About 4,000 commenters addressed driving time and the restart; about 3,000 addressed breaks and duty time limits (most of these wanted a return to the pre-2003 cumulative duty time); approximately 200 commented on the on-duty definition, and about 100 commented on the penalty provision. Most people who took the time to comment opposed some part of the proposal. About 8,000 comments expressed general opposition to the rule.

The primary arguments made by the commenters were limited and applied to the three main provisions of the NPRM—driving time, the restart, and breaks. To avoid redundancy, in this section the overarching arguments will be discussed first, incorporating specific points related to the provisions. The arguments that apply to a single provision will then be presented. Comments on the economic analysis are addressed in Section VI “Required Analyses” of this preamble.

The motor carrier industry argued that the declining fatality rate for truck-involved crashes since 2004 demonstrates that the current HOS rule is safe and should not be changed. The main industry argument, however, was that changing the rule would produce serious economic consequences for carriers, drivers, shippers, receivers, and consumers. On other issues, the industry generally disagreed with the

notion that drivers are not getting sufficient sleep and that chronic fatigue is a problem. The industry's only argument on driver health benefits was to claim that the study used to estimate increased mortality had been misapplied, a claim that the study's lead author refuted in a comment to the docket. NTSB, NIOSH, and safety advocacy groups, all submitted comments to support the proposal in general, contradict industry arguments, and provide additional research. FMCSA asked for data on crash experience under the current rule, costs of the proposed rule, and related matters, but no carrier or association submitted information that proved to be useful.

A. Safety

Industry commenters made two principal arguments on safety. The first was a general statement on the improving crash rates of CMVs; the second was specific to the 11-hour driving limit. This section presents the comments and response to improving the crash rates. Section IV.”Discussion of All Comments” E. “Driving Time Limit” discusses the 11-hour issue.

Comments.

Many industry associations, carriers, and drivers stated that the 2003 rule has improved (or at least not reduced) safety and pointed, as proof, to the decline in truck crash rates that occurred from 2004 to 2009. ATA stated that truck vehicle miles traveled (VMT) increased during that period, countering any argument that the economy was the cause of the decline in crashes. Some carriers stated that their crash rates (variously reported as preventable, recordable, injury, or all crash rates) declined over similar periods. Two commenters noted that HOS compliance has improved as seen in roadside inspection data.

Advocates

et al.,

the Insurance Institute for Highway Safety (IIHS), and another commenter pointed out that the crash rates began falling well before 2004 and that the passenger vehicle fatality rate has fallen faster than the truck fatality rate in recent years. IIHS stated that there was no apparent change in the long-term trend coincident with the 2003 rule change. IIHS also noted that there had been a general downward trend in CMV driver deaths, but that the number rose between 2003 and 2006, before dropping in 2007 and 2008.

Comments for Advocates for Highway and Auto Safety, Public Citizen, Truck Safety Coalition, and the International Brotherhood of Teamsters, filed jointly.

FMCSA Response.

Crash rates for trucks and passenger vehicles have been falling since the late 1970s. The reasons for the decline are complex and cannot be attributed to any single factor. It is very likely that improved vehicle safety design for cars and improved road design have contributed to the reduction. Injuries and fatalities have also decreased with greater use of seat belts by car and truck drivers. The rates have been steadily declining over a long period, well before the HOS rules changed.

Economic conditions do play a part in the number of crashes. The large decrease in truck-related fatality rates from 2007 to 2009 is not unprecedented; similar year-to-year percentage decreases in fatal crash rates occurred in 1980, 1982, 1991, 1992, and other periods of recession. ATA argued that the recent recession could not explain the decline in fatality rates because truck VMT actually increased despite the recession. The increase in truck VMT cited by ATA and others, however, is an artifact of a change in the definition

of “truck” used by the Federal Highway Administration (FHWA) in estimating VMT, which resulted in an addition of almost 1.9 million vehicles (about 370,000 combination vehicles and 1.5 million straight trucks) and their associated VMT to the “truck” population. In estimating the number of trucks, FHWA has defined that term to mean any vehicle other than a bus with a gross vehicle weight rating greater than 10,000 pounds. The population of “trucks,” therefore, now includes mobile homes, large pickups, cab chassis, and various other larger vehicles, most of which are not used by motor carriers, except for short-haul pickups and deliveries.

The changed definition increased the number of combination trucks by 17 percent and the number of single-unit trucks by about 22 percent (for 2008). The change increased 2008 VMT for combination trucks by about 28 percent and VMT for single-unit trucks by about 50 percent. FHWA revised VMT estimates for previous years to reflect its new methodology and allow year-to-year comparisons. These revised VMT numbers show that combination truck VMT peaked in 2007, fell slightly in 2008, and fell sharply in 2009. This pattern obviously reflects the decline in demand for transportation associated with the recent recession.

The FHWA 2009 VMT estimates and its revision of the estimates for 2000-2008 were posted in April 2011 in Table VM-1 of Highway Statistics (annual editions) (

http://www.fhwa.dot.gov/policyinformation/statistics.cfm

A combination vehicle is any vehicle towing a trailer. Semi-trailers are combination trucks as are pick-ups, cars, or straight trucks towing a trailer; for example, a sport utility vehicle towing a boat is considered a combination vehicle.

These drops in VMT are consistent with other data that reflect VMT for trucks. Diesel fuel sales for over-the-road-vehicles, which are primarily for trucks, dropped 14 percent from 2007 to 2009, according to data from the Energy Information Administration. The Census Bureau's Annual Survey of the Service sector indicated that the trucking industry revenues dropped by about 19 percent from 2008 to 2009 and VMT for for-hire carriers by 15 percent.

ATA's own trucking activity index (year 2000=100) lists the mileage index for truckload carriers in December 2003 as 100.4 seasonally adjusted; the index fell slightly (less than 10 percent) until the middle of 2008 when it began to fall sharply, reaching a low point of 71.3 in April 2009.

U.S. Census Bureau, “Truck Transportation, Messenger Services, and Warehousing—NAICS 48/49

http://www2.census.gov/services/sas/data/48/2009_NAICS48.pdf.

ATA, Economic Statistics Group, ATA Trucking Activity Report Historical Truckload Sector Database as of March 2011. Available online at

http://www.atabusinesssolutions.com/p-24-ata-trucking-activity-report-trac.aspx.

A study conducted by the National Highway Traffic Safety Administration showed that large fatality declines (for all vehicles) tended to coincide with areas with higher increases in the unemployment rate, which limits driving, particular long-distance driving (Longthorne). A similar study conducted by the University of Michigan Transportation Research Institute attributed the decline to a number of factors (Sivak). The study noted that crashes (for all vehicles) had fallen more sharply on rural interstates than on other roads, which they stated was consistent with a decline in long-distance leisure travel. Similarly, crashes during rush hours dropped more than crashes at other times, consistent with reduced traffic. They noted that the decline in truck crashes was consistent with the decline in freight traffic.

The assumption in the industry argument is that fatigue-related crashes, which are the target of the HOS rules, have declined as sharply as crashes as a whole. The data from the Trucks Involved in Fatal Accident reports, however, indicated that the trend in fatigue-coded fatal crashes has not been as consistent as the decline in crashes. The highest percentage of fatigue-coded fatal crashes occurred before the 2003 rule in 1999 and 2000 (both 2.1 percent) followed by 2 percent in 1994 and 2007, before and after the rule; the lowest rate

occurred before the rule (1.4 percent in 2001) followed by 1.5 percent in 2002, 2004, and 2006, before and after the rule.

While the declines in crashes are welcome, they are not sufficient. The IIHS commented that driver deaths increased after the 2003 rule was implemented. FMCSA notes that drivers are far more likely to die in single-vehicle crashes than in multi-vehicle crashes and single-vehicle crashes are more often associated with driver fatigue. The more recent sharp drop in driver deaths may be the result of less general traffic and lower demand for trucking services, which may have reduced fatigue and trucks on the road, or other factors, such as carriers laying off their riskier drivers and significantly higher truck driver use of seat belts. It remains the case, however, that almost 300 CMV drivers died and 6,000 were injured in single-vehicle crashes in 2009. As noted above, 3,380 people died in truck crashes and 74,000 were injured in 2009. These numbers may be low historically, but they are still too high. Furthermore, preliminary reports from NHTSA indicate 3,675 people were killed in truck-related crashes in 2010, an increase of 8.7 percent over 2009.

B. Economic Impacts

Economic arguments formed the core of the comments on the proposed rule. This section discusses those arguments, both the general statements and the specific claims about individual provisions.

Comments on General Economic Impacts.

Industry associations, carriers, and drivers stated in general that the rule as proposed would do the following:

• Reduce productivity of carriers.

• Reduce driver incomes.

• Affect shippers, receivers, and consumers.

• Increase demand for more drivers and put more inexperienced drivers on the road.

• Increase congestion.

The majority of commenters on these issues stated that the NPRM—particularly the 10-hour driving time, the 2-night requirement for, and the weekly availability of, the 34-hour restart—would have serious negative financial impacts on carriers and affect the reliability of the industry. Many commenters believed these provisions would reduce operating resources (drivers' hours) and increase the cost of goods sold (adding drivers, equipment, and operating costs), which could also result in delays in deliveries to customers and loss of business. Many commenters seemed to assume that the two-night limit on the restart would eliminate nighttime deliveries. Commenters generally claimed that, to accomplish the same amount of productivity, the proposed regulations would require carriers to add more equipment and drivers to offset the decrease in available hours per driver, which would also lead to increased fuel and maintenance costs. Carriers predicted varying degrees of loss—from 4.72 percent reduction in utilization to 25 to 33 percent decline in revenues—and increased costs ranging from $10,000 to $25,000 per truck. Carriers said that they would have to hire new drivers and buy new trucks; their estimates of the effect on revenues ranged from considerably less than 1 percent to 25 percent or more. Shippers and shipper associations emphasized the impact on supply chains, the need to reconfigure schedules and routes, and the costs associated with those changes.

FMCSA Response.

The Agency relied on published data and reports from a range of sources for the NPRM and this final rule. These documents did not include any information indicating that the adverse economic outcomes described above were likely to occur. The Agency estimates that this rule would reduce productivity by 2.7 percent with a 10-hour driving limit, and by 1.2 percent with an 11-hour limit. In either case, this estimate is significantly lower than that of many industry commenters, but given that the Final Rule is functionally equivalent to Option 3 (11 hours), the lower impact of 1.2 percent applies. It is true that some carriers, depending on their operations, may experience greater impacts, but others will experience more moderate impacts. Our estimate for the total costs of the rule are also much lower than those claimed by the industry: we estimate that the total cost of the rule would equate to roughly one-third of one percent of industry revenue, not the 25 to 33 percent declines stated by the industry. To put this figure into context, a 3 cent rise in the price of diesel fuel would impose greater costs on the long-haul segment of the industry than this rule. Data submitted by ATA to the docket, while not complete enough to be used to re-estimate the costs of the rule, indicates that drivers may be working less intensely than the Agency assumed in conducting the analysis. If that is the case, the costs (and benefits) would be lower than the Agency estimates, as ATA's consultant acknowledged in its analysis.

Although commenters made a wide range of claims for the cost of the NPRM, they provided little data to support those claims and few explanations of how the rule changes could affect their operations to the degree claimed. A number of publicly traded motor carriers submitted cost estimates that, when compared to their reported revenues, were found to represent a small fraction of 1 percent of their revenues, which is much less than FMCSA had estimated in its economic analysis. None of the commenters provided an explanation of how a reduction in weekly driving hours of about 5 percent for those working the longest hours could produce revenue declines of the magnitude claimed.

Most of the claims seem to imply that every truck and driver is working the maximum hours every day. Commenters addressing other issues (including many of the same commenters) indicated that use of the 11th hour of driving is considerably lower than FMCSA estimated (on about 10 percent of the runs compared to the 21 percent FMCSA had estimated) and that restarts are generally longer than 34 to 40 hours. The critique of the RIA submitted by ATA and cited by many industry commenters claimed that FMCSA had overstated the number of drivers working long hours. Data submitted by ATA based on more than 118,000 drivers indicate average work weeks of less than 44 hours; a smaller sample of drivers that ATA submitted still averaged less than 58 hours in 8 days (or about 50 hours in 7 days). The industry, in effect, made two contradictory arguments—that the long hours allowed by the current rule are rarely used so that fatigue is not a problem and rule changes are not necessary, and that any reduction in those hours will have serious economic impacts. Both arguments cannot be true.

Any driver who is working less than 60 to 70 hours a week does not need a restart and thus is unaffected by the limitations on the restart requirement in this final rule. Revenues generated by those drivers will not be affected. The restart does not simplify bookkeeping. Unless a driver knows that he is working less than 60 hours a week (

e.g.,

both simple (subtracting one day's hours from the running total, then adding another day's hours to the result) and can be conducted during waiting or refueling time, and so would result in de minimis effort and cost to the driver. Furthermore, any driver who only takes a restart once a week would not have to keep a tally of hours back beyond the previous restart, because that restart would reset the driver's cumulative available hours under the new rule, as it does under the current rule. Any driver who works relatively moderate hours would be unlikely to take multiple restarts in a week, or have to worry about violating the cumulative weekly hour limit.

The two-night requirement will not stop overnight deliveries; even a driver who is working maximum hours and needs a restart could still make nighttime deliveries 5 days a week. Drivers who are not working longer hours can continue to make nighttime deliveries every working night because they do not need a restart and are not subject to the 2-night requirement. This group of drivers includes local delivery drivers whose schedules may start in the early hours of the morning and LTL line-haul drivers. Long-haul truckload drivers, who may prefer to drive at night because there is less traffic, have schedules set by shippers and receivers and may not routinely drive at night. J.B. Hunt stated that 32 percent of its drivers occasionally drove at night; these drivers did so on average only 6 nights a month.

Industry comments claimed that the reliability of service would be affected, but provided no explanation of why this would occur. Reliability is the ability to predict when a shipment will arrive. Differing limits on work time may alter arrival times, but would not affect the ability to estimate an arrival time.

Carriers and drivers reiterated in comments on the NPRM that long-haul truckload drivers spend anywhere from 10 to 50 percent of their time each week waiting to be loaded and unloaded, time for which the drivers are not usually paid. The National Small Shipments Traffic Conference admitted that the 2003 rule's 14-hour consecutive duty limit had caused some receivers to unload the product before they needed the product for the store shelves or production line rather than letting the shipments sit in the truck until needed. In essence the association was confirming the drivers' claim that they are treated as moving (and free) warehouses. Carriers stated that the shortening of wait time or detention that occurred after the 2003 rule has eroded and that wait times have increased again. If the drivers and carriers are correct,

the supply chain includes inefficiencies that regularly absorb more of drivers' on-duty time than all of the changes adopted in this final rule. The relatively small impacts of the rule could be offset and the utilization of trucks and drivers improved if shippers and receivers set and kept appointments for loading and unloading instead of expecting drivers to put in long unpaid hours waiting. FMCSA has no obligation to allow drivers to work excessively long hours a week to compensate for delays in the supply chain.

See “Commercial Motor Carriers: More Could Be Done to Determine Impact of Excessive Loading and Unloading Wait Times on Hours of Service Violations,” U.S. Government Accountability Office, January 2011, Report No. GAO-11-198,

http://www.gao.gov/new.items/d11198.pdf

and the letter report, “U.S. Department of Transportation Statement on Government Accountability Office (GAO) Report” for Report No. on GAO-11-198, May 23, 2011, available in the docket. The DOT letter report was sent to the Office of Management and Budget (OMB) and four Congressional committees, stating that FMCSA is planning to examine the extent to which detention time contributes to drivers violating hours of service requirements and that it plans to initiate the study in Fiscal Year 2012, contingent on resource availability, in response to the GAO report.

Comments on Impact on the Number of Trucks.

Commenters argued that taking an hour away from daily driving time would result in more trucks being used to move the same amount of freight. They stated that more trucks on the road would increase costs to carriers, and that those cost increases would be passed to shippers and ultimately to consumers in the form of higher prices. The National Association of Manufacturers, a trucking association, and a carrier noted that reducing the daily driving limit to 10 hours would also increase costs to manufacturers and retailers, as they would have to carry additional inventory, at additional costs, to ensure that they have products on their store shelves, since reliability of service could be interrupted. Commenters, including the Owner Operator Independent Drivers Association (OOIDA), also argued that changing the 11-hour driving time limit would increase transit time and reduce productivity and on-time deliveries because current distribution centers and routes are built around the current HOS rules. Five commenters that ship products with a limited shelf life or peak ripeness argued that the reduction of daily driving time to 10 hours would severely strain their ability to get fresh product to their customers by increasing days of transit time. A carrier that transports livestock expressed concern over increased livestock deaths that may result with a decrease in daily drive time, due to drivers being forced to stop to take their break without being able to provide the animals with water or relief from the summer heat. Commenters also argued that reducing daily driving time would reduce drivers' incomes.

FMCSA Response.

FMCSA sees no reason why changing the daily driving limit from 11 hours to 10 hours, a limit that was in effect for more than 60 years before 2003, would reduce the reliability of motor carrier service. Reliability depends on the carrier's ability to estimate accurately how long a trip will take, which they can do regardless of the driving time limit. However, FMCSA acknowledges that some businesses have built their distributions systems to optimize driving times under the 11-hour limit and that they might face significant costs to maintain their current delivery times if limits were reduced. As discussed above, the Agency has not adopted a 10-hour limit at this time.

The concerns expressed by livestock haulers that a mandatory rest break of at least 30 minutes would increase the risk of livestock deaths seem overstated. Federal law allows carriers transporting animals to keep them confined for up to “28 consecutive hours without unloading the animals for feeding, water, and rest” (49 U.S.C. 80502(a)(1)), and there are exceptions even to that standard (§ 80502(a)(2)). This statute is obviously intended to protect animals during transportation. Under these circumstances, it is difficult to see how a half-hour break taken no later than 8 hours after the driver comes on duty—and presumably not much longer than that after the animals were loaded—could have dire consequences.

Comments on Congestion and Parking.

Many commenters stated that a 10-hour driving limit would place more trucks on the road, increase congestion, and worsen an already existing truck parking shortage at truck stops. They also argued that the 11-hour driving limit is very important to them because they use the 11th hour to find safe parking where they can take their 10 hours off duty. Other commenters argued that the 11th driving hour is rarely used, but that it provides much-needed flexibility allowing drivers time to get home or find parking after unforeseen events during their shift, such as congestion, inclement weather, or the needs/demands of shipper, receiver, carrier or dispatch. Commenters also implied that night drivers would switch to day driving to shorten their restarts, which would increase congestion. Commenters stated that the proposed 2-night midnight to 6 a.m. period for restarts would result in

more trucks entering the traffic stream at 6 a.m., thereby increasing congestion.

FMCSA Response.

It is difficult to see how the change in the driving limit or the 2-night requirement would seriously affect the number of trucks on the road and, therefore, how the changes would increase congestion or the shortage of parking. Because the Agency is retaining the 11-hour driving limit, the commenters' concerns about increased congestion related to a need for more trucks will not be realized. An increase in rush hour traffic because of the 2-night provision is unlikely. Most drivers who routinely work at night (LTL and local delivery) do not work enough hours to require a restart and, therefore, would not need to change schedules. Truckload drivers do not drive at night regularly and have more ability to adjust start and stop time to minimize the impact of the provision on their operations. FMCSA has also narrowed the required period for those who are affected by the provision to allow earlier starts, which will further reduce effects on rush hours.

Most drivers who routinely drive at night are either LTL line-haul operators or work for local private carriers making deliveries. Neither of these is likely to switch to day driving nor is there any reason why they would need to. Drivers need to take a restart, and thus two full nights off, only if they have worked more than the cumulative hours allowed under the weekly duty limit (60 hours in 7 days or 70 hours in 8 days). Most of these drivers work few enough hours per week (less than 60) that, although nominally “using the restart provision” by virtue of taking off a day or a full weekend, they are not using the restart to gain any additional hours beyond the 60 hours that they would be allowed without the restart provision. Because they do not use the restart to increase the hours they are allowed to use, these drivers can maintain their preferred schedule while still complying with the HOS rule. In particular, they are not required to have 2 consecutive nights off (although they usually do). Long-haul truckload drivers may prefer to drive at night, but their schedules are irregular and determined by their appointment times. Even these drivers, according to ATA, do not routinely work enough hours to trigger the need for the restart. When they do work maximum hours, they can still drive at night 5 nights a week.

Congestion can, at times, be unexpected, but most congestion is predictable; any driver who will be driving around a major city during the rush hours knows he will encounter congestion and must therefore plan for it. Unforeseen weather conditions are covered by § 395.1(b), which can be used to take extra time.

Comments 34-Hour Restart Economic Impacts.

On the restart, many commenters said that the NPRM provision would reduce productivity. In contrast, Schneider National said the proposal likely would not have a significant negative effect on productivity, because most drivers take breaks that are longer than the required off-duty period. However, it said the 2-night requirement would add costs for the carrier and inefficiencies for the supply chain, because many drivers will choose not to restart while on the road, requiring additional “empty miles” to get them home. A number of shipper associations stated that the provision would limit the ability to make deliveries overnight. Commenters, such as ATA, the National Solid Waste Management Association, United Parcel Service (UPS), and others, stated that the proposal would deprive drivers and carriers of scheduling and operational flexibility. ATA commented that flexibility under the current rule was especially important for long-haul and irregular route drivers who may not know their schedules in advance and have little control over scheduling. Carriers in the construction and fuel delivery industry also stated they would be adversely affected.

FMCSA Response.

After considering numerous comments, FMCSA shortened the two nighttime periods that must be included in the restart to 1 a.m. to 5 a.m., which is the core portion of the window of circadian low for almost everyone. This will provide greater flexibility than the proposed rule while ensuring that drivers have the opportunity to obtain 2 nights of sleep while allowing drivers to stop an hour later than proposed at the beginning of the restart period and to start an hour earlier than proposed after the restart period. FMCSA acknowledges that this revised restart provision will slightly reduce the flexibility available under the previous rule, but recent research has suggested that 2 consecutive nights off duty would be necessary to ensure that the drivers who take a restart are adequately rested when they resume driving.

Schneider National argued that its drivers would not take a restart with 2 nights on the road and stated that its drivers' restarts averaged 62 hours, which is more than enough time to cover 2 nights. Perhaps the largest group of regular night drivers is the LTL line-haul drivers, who generally work a 5-day week and whose weekend would normally cover two consecutive nights as a matter of course.

As for general productivity impacts, drivers are still subject to the 60-hour and 70-hour limits but will still be able to use a 34-hour restart once a week. A driver working the longest hours will be able to use a restart to work those hours, but will then have to take more time off in the next week to compensate. Although this will limit his or her ability to work maximum hours every week, the commenters suggest that very few drivers do this. Local fuel delivery drivers are probably not working enough hours to need a restart as most local drivers work 5-day weeks. The construction industry is not subject to the restrictions because it observes a statutorily mandated 24-hour restart (49 CFR 395.1(m)).

Comments on Economic Impact of Breaks.

ATA and others stated that because there is little or no evidence that drivers are not taking breaks during the course of the workday, requiring breaks at specific times only reduces flexibility and productivity. Drivers, carriers, the American Moving and Storage Association (AMSA), and others, argued that the break provision can decrease efficiency and productivity, prevent on-time deliveries, and create a longer workday; commenters cited the difficulty of finding a place to park. FedEx commented that a 30-minute rest break by the 7th hour after coming on duty would further hinder local package pickup and delivery drivers operating under § 395.1(e)(1).

FMCSA Response.

After considering numerous comments about the breaks, primarily from team drivers, the Agency extended by one hour the window in which a break must be taken. The final rule provides that driving is not permitted if more than 8 consecutive hours on duty—compared to 7 hours in the NPRM—have passed since the last off-duty (or sleeper-berth) period of at least 30 minutes, a driver must take a break of at least 30 minutes before driving. For example, if the driver started driving immediately after coming on duty, he or she could drive for 8 consecutive hours, take a half-hour break, and then drive another 3 hours, for a total of 11 hours. Conversely, this driver could drive for 3 hours, take a half-hour break, and then drive another 8 hours, for a total of 11 hours. In other words, this driver could take the required break anywhere between the 3rd and 8th hour after coming on duty. A driver who plans to drive until the end of the 14th hour and wants to take only one break will need to take a break between the 6th and 8th hour after

coming on duty. Drivers will have great flexibility in deciding when to take the break. By postponing the latest point at which the break can be taken from the 7th to the 8th hour, the rule will make it significantly easier for team drivers to coordinate their sleeper-berth periods and may enable drivers who do not drive late into their work shift to dispense with a break altogether. FMCSA has also added an exception for drivers of CMVs carrying Division 1.1, 1.2, or 1.3 explosives to allow them to count on-duty time spent attending the CMV as required by § 397.5 but doing no other on-duty work, toward the break.

If, as the data ATA and others submitted indicated, drivers are averaging less than 50 hours of driving a week, it is difficult to understand how a half hour break that can be taken sometime between the 2nd and 8th hour in a 10-hour day could cause any delays unless the industry is saying that these drivers never stop for a meal or a rest break during that time. FedEx stated that its drivers average less than 9 hours of driving a day except in peak periods when the average is slightly less than 10 hours. It seems unlikely that drivers work essentially non-stop. FMCSA recognizes that drivers on the road may have to find a safe place to park, but even the drivers working to the end of the 14-hour window have a 2-hour window in which to take a break (between the 6th and 8th hour after coming on duty), assuming they take just one. Drivers working shorter days have progressively longer windows in which to take the break and meet the requirement. That should be adequate time to find a safe place to park.

Comments on Economic Impact on Drivers.

A large number of commenters stated that the NPRM would reduce drivers' incomes because they would be able to drive fewer miles and would lose loads. ATA claimed that it could cause an income loss of 20 percent in peak season. Carriers estimated driver losses at anywhere from 8 percent to 40 percent. Two large carriers, however, indicated that the result would be an increase in driver pay rates to offset the lost hours.

FMCSA Response.

A driver who is regularly working the longest hours will lose hours under the final rule; that is the intention of the rule changes. Drivers will still be able to average 70 hours a week, however, which is longer than most people work and, if the industry data are accurate, longer than most drivers are working. A driver on the 70-hour/8-day schedule working the maximum hours allowed under the 2003 rule would lose one shift every 2 weeks (11 instead of 12 14-hour shifts in 14 days). According to the ATA data, very few drivers are working that hard; those few who do so are apparently not doing it consistently. The income of drivers who are averaging less than 60 hours a week, let alone less than 50 hours, will not be affected by the provisions of this final rule. For the drivers working the longest hours, a reduction in waiting time could enable the drivers to have more opportunities to drive weekly. The rule reduces the maximum number of on-duty hours more than it reduces the maximum number of driving hours (a maximum of 82 hours on duty on average to 70 hours versus a maximum of about 74 hours of driving time to 70 hours).

An underlying assumption in many of these claims of lost income is that most shipments are time-critical and that shippers will shift to teams to ensure delivery. The long waiting times that shippers and receivers often impose (2-18 hours according to drivers) indicate that this is not true, as do reports from drivers and others that drivers will generally try to arrive the night before a pick-up or delivery so they can be sure to make their appointment times. Teams represent a relatively small part of the industry, which indicates that most shippers do not believe the arrival time is so critical that they are willing to pay the higher rates associated with teams. Shipper surveys indicate that reliability, not transit time, is more important to shippers. A 2009 report on trucking stated that “freight buyers are more willing now to sacrifice a day or three in transit, at a lower cost, as long as they and their customers know when shipments will arrive” (O'Reilly (2009)). For the 2010 survey, 90 percent of surveyed shippers identified reliability as their most important criterion when selecting carriers (O'Reilly (2010)).

Finally, as two carriers stated and as the industry has been saying in press reports and, for publicly held companies, reported in their SEC filings, regardless of the rule changes, driver wage rates are likely to have to rise to attract new drivers to the industry and to retain the current workforce. A National Transportation Institute survey found that 80 percent of the carriers that responded expected to increase driver pay (Cassidy (2010); Isidore). Pay increases may partially or wholly offset income losses for the limited number of drivers working the longest hours. FMCSA concedes that the hardest working drivers may lose income if they drive fewer miles under the revised rule.

Comments on the Economic Impact on Consumer Prices.

Some commenters expressed concern that the proposed regulations would lead to consumers paying a higher price for shipped goods, including food products, because higher costs to carriers would be passed on to receivers and customers. Other commenters cited concerns about higher prices from the costs of adjusting scheduling systems and training staff.

FMCSA Response.

If carriers have to raise rates to cover additional costs, those costs will eventually be passed on to consumers. FMCSA notes, however, that transportation costs represent a relatively small part of the cost of any consumer item and that the largest contributor to variability in transportation costs is the price of diesel fuel. As stated in the NPRM and Regulatory Impact Analysis (RIA), the cost of the rule changes to the industry is the equivalent of an increase of less than $0.03 per gallon of diesel for the long-haul segment of the industry. The U.S. Department of Agriculture indicates that transportation represents only 2 to 6 percent of each food and beverage dollar, a percentage which has declined over time (USDA Economic Research Service). Even if the rule increased transportation costs by 10 percent, that would add less than a penny per dollar to food and beverage costs. If, as the RIA projects, transportation costs will increase by less than 0.25 percent, the increase in the price of each food item will be a very small fraction of a penny. The one-time costs of adjusting scheduling systems and related items will not add to the long-term cost of consumer items.

Comments on the Driver Shortage.

Commenters stated that the rule changes would require carriers to hire more drivers at a time when carriers cannot fill positions and that more inexperienced drivers, who are less safe, would be on road.

FMCSA Response.

FMCSA recognizes that the rule may lead to more driver positions. Whether the driver shortage that commenters cited is real is a matter of considerable debate in the industry. OOIDA has been quoted as saying “The industry purged itself of 30 percent of its drivers in the last two years. They're everywhere, but they are not coming back to work for you if you're not going to pay them anything” (Dills). An etrucker.com survey asked about the causes of the driver shortage; 40 percent of respondents attributed it to low pay, but 24 percent said there was no shortage (Dills). Industry press reports indicate that carriers have many more applications than they have positions.

FMCSA is aware that new drivers have a higher crash rate than more experienced drivers, but the industry

adds a large number of new drivers every year. The number added because of today's rule will be relatively small in comparison to the annual influx for an industry where turnover, until the recent recession, was 100 percent or more in the truckload sector. The real issue for the industry is that many of the new drivers leave the industry within a few months because of long hours, the weeks away from home, and low pay (Burks (2007)).

C. Sleep Loss and Chronic Fatigue

Comments.

A number of commenters, including the major trucking associations, questioned FMCSA's assumption that drivers are not obtaining adequate sleep. They stated that 10 consecutive hours a day off duty should provide sufficient rest. ATA stated that FMCSA's data indicate that drivers get 6.2 to 7 hours of sleep a day, which is enough. The Minnesota Trucking Association argued that 6.5 to 7.5 hours of sleep is enough. The National Association of Manufacturers said manufacturers did not agree that sleep between midnight and 6 a.m. is different from sleep at any other period. Others, including drivers, claimed that they were naturally able to stay up all night and sleep during the day. One carrier reported that its night drivers said they maintained their daytime sleep patterns on days off. ATA and others argued that the 34-hour restart, without restrictions, provides sufficient rest to restore performance.

FMCSA Response.

The claim that 6.2 to 7 hours of sleep is enough is not supported by sleep research. As discussed in the NPRM, a study by Belenky (2003) found that drivers getting less than 7 hours in bed a night suffer degraded performance. The research indicated that someone who is totally deprived of sleep for one night recovers more quickly than someone who chronically obtains 6 to 7 hours of sleep. The VTTI study (Hanowski (2007)) did not show that drivers were getting even 6.2 hours of sleep on work days; that figure was the weekly average including 2 days off. On working days, sleep averaged below 6 hours for drivers who were not, in general, working the longest hours, but who were mostly night drivers. The sleep data in the 2005 fatigue management study (slightly less than 7 hours) was self-reported sleep, which has been generally found to be overstated by 30 to 60 minutes; this study also focused on a population of drivers who often drove at night.

Sleep research has for decades shown that humans find it difficult to get enough sleep during daylight hours even if put in dark, quiet rooms. Few people can obtain as much as 6 hours of sleep during the day and that sleep is of lower quality than nighttime sleep; Åkerstedt (2003) found day sleep of night shift workers was 2 to 4 hours shorter than night sleep of day shift workers. The one group studied that seemed to overcome this problem worked in enclosed spaces with no external indications of day or night. Truck drivers do not fit that pattern.

The window of circadian low varies somewhat among individuals. Some people, if they can choose their own times, routinely sleep between 9 p.m. and 5 a.m. while others may sleep from 2 a.m. to 10 a.m., but virtually every healthy person is sleepy between 1 a.m. and 5 a.m. Sleep at that time is longer, less prone to interruptions, deeper, and more restorative (Van Dongen & Dinges (2005)).

As several commenters noted, someone who gets 10 hours of rest a day should not build up sleep debt, but 10 hours off duty does not translate to 10 hours of rest. Research on drivers and others has shown that people who work 14 hour days do not get adequate sleep; 10 hours off usually produces less than 7 hours of sleep, often less than 6 hours because the drivers generally attend to family matters, eating, and showering for the other time the drivers spend off duty. And for the reasons discussed above, those attempting to sleep during the day usually only get 4 to 6 hours of poor quality sleep. The shorter sleep that night workers obtain may explain the higher risk of crashes and lower productivity that Åkerstedt and Wright (2009) found when comparing night shifts with day and swing shifts. Drivers who sleep during the day on their days off would not be getting adequate recovery sleep. A driver who sleeps during the day every day is building up sleep debt from week to week.

The drivers who are working the long daily and weekly hours needed to make a restart necessary may build a sleep debt that the limited time off allowed by the restart might reduce only slightly. These drivers are more likely to be chronically fatigued, with the performance deficits associated with fatigue, and are subject to a range of health effects linked to sleep loss.

D. New Research Studies

As discussed in the overview in Section I, on May 9, 2011, FMCSA posted to the docket four studies that had been recently completed and that addressed some of the issues of concern to this rulemaking. Fourteen organizations submitted comments on the studies. Advocates and New York State Department of Transportation (NYDOT) stated that the studies supported the proposed rule.

Blanco

In April 2011, Virginia Tech Transportation Institute (VTTI) completed a naturalistic driving study,

i.e.,

a study of actual over-the-road drivers and operations, that examined the activities performed in the 14-hour workday and investigated the relationship between safety-critical events (SCEs) (such as driver errors and lane tracking deviations) and driving hours, work hours, and breaks (referenced here as Blanco). The study's methodology was similar to that which VTTI has employed in other studies conducted in support of HOS rulemaking and driver fatigue research. The data acquisition system was composed of five main components: An encased unit that housed the computer and external hard drive; dynamic sensors; vehicle network; incident box; and five video cameras. VTTI developed a custom state-of-the-art lane-tracking system and included it in the data acquisition system. The lane-tracking system consisted of a single analog black-and-white camera, a personal computer with a frame grabber card, and an interface-to-vehicle network for obtaining road speed. The system reported the distance from center of truck to left and right lane markings (average error less than 2 inches). The system accurately and reliably measured and stored data when the vehicle crossed the dashed or solid highway lines. Lane tracking has historically been shown in the research to be a good measure of functional impairment due to driver fatigue.

VTTI's previous naturalistic driving research had not shown a time-on-task effect; these studies looked exclusively at driving time. Blanco looked at both driving and duty time and found a statistically significant positive relationship between driving time and the number of SCEs. The Blanco study supports the time on task function that the Agency used in the RIA. Blanco showed that naturalistic driving research no longer contradicts other types of driving time research conducted using different methodologies. The studies are all now consistent in showing that as the number of driving hours increases, there is a general upward trend in the number of crashes or SCEs. However, the study also compared the risk of driving in the 11th hour and failed to find a statistically significant difference between the 11th hours and the 7th, 8th, 9th, or 10th hours.

Blanco also showed that when non-driving activities (both work- and rest-related) were introduced during the driver's shift—creating a break from the driving task—these breaks significantly reduced the risk of being involved in a SCE during the 1-hour window after the break. The benefits of breaks from driving ranged from a 30 percent reduction in the risk of SCEs up to a 50-percent reduction (depending on the type of break from driving), with the greatest benefit occurring for off-duty (non-working) breaks.

Blanco evaluated driving hours based on whether the hour occurred at the beginning, middle, or end of an on-duty shift. The first 5 hours after coming on duty were categorized as the beginning of the on-duty shift. By definition, any hour after the 5th hour of driving could not fall within this work period. Hours 6-9 were categorized as the middle shift hours, and hours 10-14 were categorized as the end of shift hours. Driving hours 10 and beyond could occur only during end of shift hours, by definition. The first hours of driving (hours 1-5) could occur in any shift period depending on how much on-duty not driving and break time a driver incorporated into a day. For example, if a driver spent 7 hours loading a truck at the beginning of a day, the 1st hour of driving would be in the middle shift hours; if that driver drove 3 hours, the third hour would be in the end of shift hours.

Analysis of SCEs showed that, in general, the same hour of driving had more SCEs if it occurred at the end of a shift than if it occurred at the beginning or middle of a shift. For example, if the 5th hour of driving occurred at the beginning of a shift, it had 0.11 SCEs per unit of exposure. This same hour of driving had 0.20 SCE per hour of exposure if it occurred in the middle of a shift, and 0.21 SCEs if it occurred at the end of a shift. If the 8th and 9th hours of driving occurred in the middle of a shift, they had 0.09 and 0.10 SCE per unit of exposure, respectively. At the end of the shift, by comparison, the 8th and 9th hours of driving had 0.22 SCE and 0.18 SCE per unit of exposure respectively. This finding indicates that the interaction of total shift length and driving time impairs safety performance later in the day, suggesting that safety would be negatively affected by duty periods in excess of 14 hours.

Jovanis (2011)

In April 2011, Pennsylvania State University (PSU) completed a quantitative study of the safety implications of driver HOS using a case-control time-dependent logistic regression methodology (referred to here as Jovanis (2011)). It is important to note that alone, time-dependant logistic regression identifies an association, it does not prove causation. The PSU team completed a similar study in 2005. At that time, the Agency had concerns regarding the sample size, particularly in the 11th hour of driving. The new study was designed to address those concerns. The PSU study team collected data from the logs of drivers who were in crashes that involved either a fatality, an injury requiring medical treatment away from the scene of the crash, or a tow-away. The drivers' logs covered a period of 2 weeks prior to the crash and were compared to a random sample (two drivers) of non-crash-involved drivers selected from the same company, terminal, and month using a case-control logistic regression formulation. The team collected data from 1,564 drivers. The methodology employed by the team had been peer-reviewed in many previous research studies (

i.e.,

Jovanis (1991); Kaneko and Jovanis (1992); Lin (1993); and Lin (1994)). The team separated the data into truckload and LTL analyses because previous research indicated differences in the factors contributing to crashes for these two segments of the trucking industry. In total, the team analyzed 878 drivers (318 crash-involved and 560 controls) in truckload operations and 686 drivers (224 crash-involved and 462 controls) in LTL operations. The study produced counter-intuitive and somewhat contradictory findings. For the LTL operations, Jovanis (2011) found that as driving time increased so did the odds of being in a crash. Analysis of LTL data showed a strong and consistent pattern of increases in crash odds as driving time increases. The highest odds are in the 11th hour. For truckload drivers the study found no consistent trend relating crash odds to hours driving. The study team stated that the crash-odds increase in the last hour is in need of further analysis because the increase in odds may be attributable to the low sample size of observations (9 crashes of 318 truckload crashes in the data). Given the nature of the type of operations, one might expect truck load drivers to exhibit greater crash risk due to fatigue.

Two Sando Studies

In April 2011, the Agency placed in the docket two additional studies that it became aware of after publication of the NPRM. These two studies were conducted by the School of Engineering at the University of North Florida. The first study, Sando (2010a), examined the influence of bus operator driving hours on the occurrence of preventable collisions by employing data from incident reports and operator schedules to evaluate the correlation between driving hours and operator involvement in collisions. The results showed a discernable pattern of an increased propensity for collision involvement with an increase in weekly driving hours. Based on the analysis, drivers involved in preventable collisions had driven an average of over 6 hours more per week than the general bus driving population.

The second study, Sando (2010b), examined the safety impacts of the existing State operator hours of duty policies in Florida. The researchers used questionnaire surveys, incident data archived by transit agencies, and bus driver schedules to determine the relationship between crash involvement and operator schedules. Factors of interest in this study were the influence of shift pattern (start and end time), schedule pattern (split or non-split schedule), and time spent driving. Split schedules occur when a driver works in the morning, takes a long break, then works again in the later afternoon or evening. The study revealed that operators working split schedules were more susceptible to fatigue than those working straight schedules. The group of operators working split schedules indicated less sleep time, long driving hours, and early starting/late ending schedule patterns. These are characteristics of a fatiguing work schedule. There was also a strong statistical significance attached to the association between crash occurrence and fatigue condition as measured by a fatigue assessment tool. The tool predicted the likelihood that a driver was fatigued on a given shift by analyzing driver multi-day schedules. The analysis of incident data and fatigue level found that total crash likelihood increased significantly for drivers who were coded as highly likely to be seriously fatigued.

Although transit bus operators are governed by different HOS rules than interstate CMV truck drivers, the Sando studies show that cumulative work begins affecting bus driver performance well within the limits of the current HOS rules for truck drivers. In addition, less than 3 percent of the transit operator sample worked on schedules that exceeded 14 hours from the start of a duty day to the end of the driver's last shift. In essence, the schedules of the vast majority of drivers studied were within the limits of the HOS rules that govern interstate truck drivers. The study showed that cumulative fatigue

begins affecting driver crash performance for drivers averaging more than 45-50 hours of total shift time per week, inclusive of split driving schedules. The study found that crash risk increased for drivers averaging 9 or more hours of driving per day. In addition, the study examined driver schedules and determined that longer working hours are associated with fewer hours of nightly sleep, on average.

It must be noted that transit bus operators work in a different environment from most over-the-road, but not local, truck drivers. Transit bus operators primarily drive on city streets in an urban environment, whereas over-the-road truck drivers spend far more of their time driving on interstate highways and rural roads. Nevertheless, these transit bus studies do examine safety performance in an occupation that involves long hours of driving. These studies corroborate the cumulative fatigue and work-sleep relationships used by the Agency in analyzing the impacts of the new HOS rules, providing further evidence that long daily and weekly working hours affect both the amount of sleep drivers get and their risk of crashing.

Comments on Blanco.

The ATA submitted an analysis prepared at its request by Ronald Knipling that provided the following comments regarding the Blanco study:

• Naturalistic driving studies may not provide an adequate test bed for driver fatigue studies.

• The study would have been improved if the study team had disaggregated the data into fatigue related SCEs, at-fault vs. not-at-fault events, single-vehicle vs. multi-vehicle, and divided vs. undivided road ways.

• The study is based on SCEs such as unintentional lane deviations, but not “real harm.” Only 4 of the 2,197 SCEs in the study were actual crashes.

• A definitive link between critical incidents and crash risk has not yet been established.

• The few drivers who contributed disproportionately to the number of SCEs should have been excluded.

• The sample of drivers is not nationally representative of all CMV drivers.

FMCSA Response.

The Blanco naturalistic driving study was focused on better understanding the activities drivers perform in the 14-hour workday, and investigating the relationship between SCEs and driving hours, work hours, and breaks. The Agency disagrees with ATA's contention that naturalistic driving studies do not provide an adequate basis for conclusions about driver fatigue and crash risk. Naturalistic driving studies are one of the best means to assess driver performance. By reviewing video records and other data from the instrumented vehicle, analysts are more likely to be able to pinpoint the actual cause of a crash than through any other research methodology.

FMCSA is unable to accept several aspects of the analysis of the Blanco study submitted by Knipling/ATA. This submission argues that drowsiness may actually reduce the number of distraction-related SCEs. This argument is based on a study that defined fatigue as visible signs of drowsiness. Only a small number of SCEs would have involved visible signs of fatigue, yet no one denies that long work hours lead to errors in judgment, lack of response, or degradation in lane tracking even if visible signs of fatigue are absent. In the long history of time-on-task research, many investigators have measured errors, or in this case SCEs, to study degradation of driver performance over many work days. The purpose of these studies is to gain a better understanding of the relationship between fatigue and work hours or driving time.

The conclusions on fatigue and distraction depended on a limited definition of fatigue—

i.e.,

that fatigue is only present when visible signs of difficulty staying awake are present. “Fatigue” is defined as “a non-pathologic state resulting in a decreased ability to maintain function or workload due to mental or physical stress” (Caldwell). The term is used to describe a range of experiences from sleepy, or tired, to exhausted. There are three major physiological phenomena that have been demonstrated to create fatigue: sleep loss, circadian rhythm disruption, and time-on-task. Time-on-task fatigue describes fatigue that is accumulated during the working period and affects performance at different times during the shift. Performance declines the longer a person is engaged in a task, gradually during the first few hours and more steeply toward the end of a long period at work. Some of the consequences of fatigue are visible. These include eyes going in and out of focus; involuntary eyelid closure and head bobs; and persistent yawning. Other consequences of fatigue are not visibly apparent, such as wandering or poorly organized thoughts, spotty near term memory, missed or erroneous performance of routine procedures, degradation of control accuracy, impaired judgment, and looking but not seeing.

While some recent studies have found that SCEs are not associated with visible fatigue, they may be associated with non-visible manifestations of fatigue. In addition, there are several studies that have found that fatigue is associated with an increase in SCEs. A Synthesis Report prepared by the Transportation Research Board of the National Academies, of which Knipling was the principal author (Knipling (2004)), examined the literature relating driving risk to several different potential factors. In the fatigue section of that report, Knipling discusses a 2001 Dingus report on sleeper berth usage that found a moderate correlation between high drowsiness episodes and SCEs. In addition, in that same report Knipling also cited a Hanowski (2000) report which found a positive correlation between SCEs and fatigue. Several researchers, such as Mast (1989), found that lane-tracking ability decreases as the time on task increases. Skipper (1984) found that measures related to vehicle lane position could be used to detect drowsiness. Variables such as the number of lane deviations, the standard deviation of lane position, and the maximum lane deviation were found to be highly correlated with eye closures. According to Dingus (1987), lane deviation showed good potential as a drowsiness indicator. Stein (1995) studied the effect of impairment on driving performance in truck drivers. Using data from a simulator experiment, Stein found that the standard deviation of lane position increased remarkably after the driver was fatigued. Pilutti and Ulsoy (1997) performed experiments on the Ford driving simulator at the Ford Research Laboratory. The results, reported by the authors, indicated that lane position showed significant change and corresponded well with Percent of Eye Closure (PERCLOS) model. PERCLOS is the only validated measure of driver fatigue.

Within the context of the Blanco study, it is not particularly important whether fatigue or other factors cause a rise in SCEs late in the driving day—what matters is whether driving performance declines (for whatever reason) over the course of long hours of daily work. Whether this decline in performance is caused by fatigue or some other factor such as inattention or distraction does not change the basic conclusion that driving performance suffers later in the duty day. ATA suggested that the Agency should have parsed all of the SCEs detected by Blanco, and used only those SCEs where visible signs of fatigue were present. Knipling, however, did not provide any research citation where time-on-task research was conducted in this manner, and FMCSA knows of no such research.

The Agency does not believe that it is necessary to disaggregate SCEs by fault or by type of vehicle or by type of roadway. The main question that the Blanco study addressed was whether time-on-task effect exists in a truck environment, as it does in virtually every other work setting.

Additionally, ATA commented that there was no harm from certain types of SCEs, such as lane deviations and, therefore, they should not be included in the analysis. A well established fact in transportation safety research is that crashes are caused by the interaction and convergence of many factors. In Knipling's 2009 and previous work, Knipling used the term “crash trifecta” to explain the complex and convergent nature of crashes. The “crash trifecta” concept asserts that crash genesis can be traced to three separate, but converging events. These include unsafe pre-incident behavior, transient driver inattention, and an unexpected traffic event. Not every element in the trifecta occurs in every crash. However, the probability of a crash given the three crash-trifecta elements is greater than the probability of a crash given only one of the crash-trifecta elements. Unintentional lane deviations are unsafe driving practices that may not always result in crashes. However, based on the “crash trifecta” concept, an unintentional lane deviation when compounded by fatigue/transient driver inattention and an unexpected traffic event significantly escalates the risk of a crash. To discount or ignore unintentional lane deviations simply because they do not always result in crashes is a simplistic argument that belies the complex nature of crash causation. It is also a contradiction of a principle and concept that Knipling has always championed.

ATA commented that a definitive link between critical incidents and crash risk has not yet been established. FMCSA noted this issue in the NPRM and has sponsored a study that addresses it indirectly. A report entitled “Distraction in Commercial Trucks and Buses: Assessing Prevalence and Risk in Conjunction with Crashes and Near-Crashes” by Hickman, (2010), was placed in the docket of the Agency's NPRM on “Drivers of CMVs: Restricting the Use of Cellular Phones” [75 FR 80014, December 21, 2010, Docket No. FMCSA 2010-0096-0004]. ATA submitted detailed comments on that NPRM on February 22, 2011. FMCSA assumes ATA was aware of the Hickman study. The report, based on a combined dataset of 2,421 crashes, concluded that “[t]he results in this study were similar to the results found by Olson (2009) regarding SCE risk and performing a tertiary task while driving.” The Olson study evaluated odds risk ratios of driver distraction tasks by generally examining SCEs. When these events were compared to the Hickman study, the results did not differ significantly. These findings thus provide broad confirmation of the link between critical incidents and crash risk, making them a reasonable surrogate for crashes. In addition, the Agency has long argued that SCEs are an indication of decreases in driving performance and an indication of an increased crash risk. The question is not whether SCEs are related to crash risk, but how large an increase in crash risk is associated with a given increase in SCEs. For instance, if a particular factor increases the risk of SCEs by 30 percent, does this imply that crash risk also increases by 30 percent, or by a lesser or greater amount? The size of the link has not been established, although it is generally accepted that there is a link between driver performance, as measured by SCEs, and crash risk.

ATA also commented on whether drivers with a disproportionate risk of SCEs should have been omitted from the data. Knipling noted that “if the scientific goals of the VTTI study were narrow—determining the associations between work schedules parameters and SCEs—then this decision was correct.” In addition, Knipling notes that he has “never encountered a study of driver risk that did not contain compelling evidence of extreme individual differences among drivers.” Since these differences are common to all driver samples, it seems reasonable to conclude that drivers exhibiting high SCE risk differentials are not particularly rare within the larger CMV driver population. As a result, data describing the driving performance of these drivers should not be ignored or omitted if the goal is to examine work schedule parameters and how they affect rates of SCEs. The Agency agrees with Knipling that it was appropriate for Blanco to retain data for these drivers in their analysis.

ATA pointed out that the drivers in the VTTI study were not randomly selected and are not nationally representative of all CMV drivers. This is correct; the sample represents 97 drivers who volunteered to participate in the study and whose performance was tracked using instrumented vehicles for 4 weeks. The naturalistic driving data were collected from four for-hire trucking companies—long-haul and line-haul segments of the trucking industry. The final project data set consisted of approximately 735,000 miles of driving data. Study participants also completed a daily activity register that provided a detailed account of the tasks that CMV drivers performed during their workday. The combination of naturalistic driving data and activity registers makes this study one of the largest data sets ever collected for studying driver activities, behaviors, and fatigue. The study team acknowledged in its report that participants may not be representative of the entire population of commercial drivers, but the Agency knows of no systematic biases in the composition of the sample that would distort or invalidate the conclusions drawn by the researchers. Identifying and securing the cooperation of a large group of drivers who are truly representative of the extraordinarily diverse motor carrier industry would be cost prohibitive, even if it was feasible. The Blanco study represents that best science that is currently available to examine driver fatigue issues.

Comments on Jovanis (2011).

ATA/Knipling provided the following comments regarding the Jovanis (2011) study:

• There was no description of crash characteristics (other than drivers' associated work schedules) provided;

• There was no distillation of the crash dataset to exclude non-preventable crashes;

• The researchers did not perform validation tests of study conclusions via disaggregation of the crash dataset by prominent fatigue-related factors;

i.e.,

single-vehicle vs. multi-vehicle crashes, or other crash characteristics;

• Inadequate attention was paid to time-of-day as a potential confound;

• The study employed an inter-subject design rather than intra-subject design;

• There were a relatively small number of 11th hour crashes and exposure hours;

• The study sample may be unrepresentative due to apparent inclusion of truck tractors not equipped with sleeper berths.

FMCSA Response.

Knipling and the National Industrial Transportation League (NITL) stated that Jovanis provided no description of crash characteristics (other than their patterns of work schedules) and no distillation of the crash dataset to exclude non-preventable crashes. These comments are correct; the study team was tasked by the Agency to investigate the crash risk by hour of driving, not to investigate either fatigue-only crashes or crashes deemed preventable. The team was interested in all crashes and their association with driving hours of

service. The study did not adopt a “fatigue” or fault perspective used by others because the researchers did not want to inject personal judgment about individual crashes into the analysis.

Knipling commented that the Penn State team did not perform validation tests of study conclusions via disaggregation of the crash dataset by prominent fatigue-related factors (

e.g.,

single-vehicle vs. multi-vehicle crashes and other crash characteristics). Again, this research was a study of the time-on-task effects as they relate to crash risk for evaluation of the drivers' hours of service. Disaggregation of the data into the various categories suggested by ATA is neither necessary nor warranted in the context of determining crash risk as a function of driving hour. The underlying methodology used for this study has been employed over the last 25 years, and related studies based on this methodology have appeared in peer-reviewed journals, papers and proceedings and presentations to the Transportation Research Board of the National Academies.

Knipling claimed that the Penn State team did not pay sufficient attention to time-of-day as a confounding factor. Time of day is discussed at great length in the report. The study carefully included multiday driving in the models, by grouping drivers with similar daily and weekly work and driving schedules together. Within each group, drivers started their duty day at approximately the same times on the same days, and drove for roughly the same number of hours. Drivers were also grouped based on where in the week their extended off-duty or restart fell. Because drivers in each schedule grouping drove at roughly the same time, and for the same duration, on a daily basis, their exposure at a particular time of day was similar. These groupings, therefore, partially controlled—although imperfectly—for time of day and circadian effects.

Knipling commented the study employed an inter-subject design rather than intra-subject design. That is, the study compared drivers who had a crash to two drivers who did not rather than comparing the crash driver to him- or herself over a period in which there was no crash. This is correct, and the study team did so for good reason: including only an intra-subject design removes all non-crash involved drivers from the analysis. The Agency believes it makes sense to build a model representing all drivers on the road, not just those involved in crashes in any one year.

Knipling noted that relatively few 11th-hour crashes and exposure hours were included in the study. This is also true. One of the reasons the Agency commissioned this study was to collect data on a larger number of drivers who drove into the 11th hour. However, even with this larger data set, which combined the 2005 data set and new information collected specifically for this study, the Penn State team found that many drivers simply are not using the 11th hour of driving.

Comments on Relation of Blanco and Jovanis Results.

OOIDA commented that the two new studies Blanco and Jovanis (2011) provided inconsistent results. ATA pointed out that the overall driving effects in the Blanco study were not significant.

FMCSA Response.

OOIDA correctly pointed out that the Blanco study was done using a naturalistic driving study perspective, while the Jovanis (2011) research was based upon a review of driver logbooks and electronic on-board recorder (EOBR) records and involved a comparison between the portion of logs of drivers reflecting trips where a crash occurred and the logs of other drivers where no crash occurred. Using these two very different methodologies, both studies showed a statistically significant time-on-task effect—as the number of hours increased so did the number of SCEs (Blanco) or crashes (Jovanis (2011)). The study by Blanco significantly qualifies the previous work by Hanowski (2008), which detected no difference in the crash risk between the 10th and 11th hour of driving. Although the new study is still unable to pinpoint a statistical difference between those two hours or between the 11th hours and the 7th, 8th, 9th, or 10th hours, it shows a time-on-task effect that the more narrowly focused 2008 study did not. As a result, all major drive-time research is generally consistent in finding that longer work hours increase the risk of a crash. The primary reason for this development is that the latest VTTI study was able to reliably capture lane deviations. With any impairment such as fatigue or loss of vigilance, one of the first indications is the driver's inability to keep the vehicle within a particular lane. Lane tracking is the first and one of the best indicators for loss of vigilance or driver fatigue.

Blanco and her colleagues conducted numerous statistical tests on their data. The NYDOT commented that the study:

Contains some data manipulations that may be questionable. Table 11, which summarize the raw data, shows 11th hour as having the highest SCE rate per hour. To accommodate certain statistical analysis methods the SCE data was collapsed to be binary variable which resulted over 42 percent of the over-all SCE data, and over 59 percent of the SCE data for the 11th hour of driving to be discarded. Through a series of further data manipulations the researchers arrive at Table 22 (the data used to calculate the odds ratios in comparing driving hours), which shows 11th hour to be the safest hour in terms of SCE rate per shift. Some justifications for these data manipulations were presented, but they are not very compelling.

The Agency agrees with NYDOT's characterization of some of the analytical techniques used in the study. The Blanco study took continuous data and converted them to a binary function. While this may be necessary for calculating odds ratios, it can also conceal useful information. For example, a driver who becomes fatigued and has difficulty maintaining vigilance is more likely to have multiple SCEs. Given the analytical approach used by Blanco, a driver's lane incursions in a given hour would be coded as “yes” (meaning there was an SCE in that hour), irrespective of the actual number of incursions. Increasingly frequent SCEs are probably indicative of increasing fatigue, but converting them to a binary function eliminates that information. This analytical technique makes it much more difficult to show statistically significant differences.

OOIDA also commented and reiterated that the Blanco study did not find statistically significant differences between the 10th and the 11th hour of driving. This is true, but again given the data procedure discussed above and the fact, as OOIDA pointed out, that many of the drivers in this study did not drive into the 11th hour, the sample size was substantially reduced. These factors have a great effect on statistical significance.

Comments from NY DOT and Advocates.

The NYDOT stated that the Blanco and Jovanis (2011) findings supported reducing driving time to 10 hours and requiring breaks. It stated that Jovanis (2011) and Sando (2010a and b) supported the changes to the restart provision. Advocates stated that the studies supported the 10-hour driving limit, the mandatory break, and a 13-hour driving window. It concluded that the studies contradicted the proposal to allow drivers to extend the driving window to a 16-hour day twice a week.

FMCSA Response.

FMCSA agrees that the studies show a general increase in crash risk with longer work hours. However, confronted with strong evidence that an 11-hour limit could provide higher net benefits, the Agency has concluded not enough data exists for adopting a new regulation on this issue and that the current driving limit should therefore be allowed to stand for now. As discussed elsewhere in this

preamble, however, based on the cost, an 11-hour driving limit is the most reasonable regulatory choice.

Comments on Sando Studies.

ATA and Knipling criticized the applicability to the trucking industry of the transit bus studies by Sando (2010a and 2010b). The main criticisms were that transit bus drivers work in a different operating environment than over-the-road truck drivers and under different HOS rules. Other commenters on these studies made these same two arguments. In addition, Knipling criticized some aspects of the methodology used and suggested refinements that might have improved the study. He argued that the study failed to distinguish between multi-vehicle and single-vehicle crashes, and that the study omitted preventable crashes that were perceived as having been caused by factors other than fatigue.

FMCSA Response.

The Agency agrees that transit bus operators generally drive in a different environment from over-the-road truck drivers. The former generally operate in an urban environment on city streets, while the latter operate on highways and rural roads and spend limited time driving in urban areas. In addition, transit bus operators drive during peak commuting periods, when traffic volumes are heavy, while truck drivers often adjust their schedules to avoid large urban areas during rush hour if possible. Finally, transit buses are not equipped with sleeper berths, and there are not always good places for transit bus operators to take breaks and rest during shifts. While these are legitimate reasons to use caution in applying the results of these studies to truck drivers, their findings cannot be totally ignored. Despite the differences in operating environments, both transit bus and over-the-road truck drivers spend the majority of their work time driving large motor vehicles. Furthermore, there is no reason to believe that truck and bus driver populations respond differently to long work hours.

Florida transit bus operators are governed by different rules than interstate truck drivers. They are allowed a maximum duty window of 16 hours, are required to take only an 8-hour break between shifts, and can drive 12 hours per day. Their maximum work hours are capped at 72 hours in 7 days. Knipling and others argue that these different rules make the application of the transit bus study findings to the trucking industry questionable. However, a look at the transit bus operator schedule data in Sando 2010b shows the average weekly hours worked by the operators included in the study. Drivers generally averaged between 50 and 55 hours of work per week, and the maximum weekly hours for any one driver was 85.67, which is barely over the maximum number of hours a truck driver can work under the current HOS rules. In essence, the vast majority of drivers included in the study were complying with the weekly on duty hour limits that apply to truck drivers. Although governed by different hours of service rules, the fact that almost all of the drivers in the study were working schedules that would comply with the current HOS rule for truck drivers makes the findings of the study somewhat applicable.

The other criticisms of these studies involved minor methodological issues. The authors excluded crashes that were deemed to have a cause that was not fatigue-related. While this filtering of the data may have affected certain findings, especially those related to crashes during windows of circadian low, when fatigue would be a larger problem, it is unclear how this filter could invalidate the findings related to cumulative fatigue and long daily average working hours. Presumably drivers working long hours would be involved in non-fatigue-related crashes at rates similar to other drivers. If one accepts this reasonable assumption, finding that their risk of fatigue-involved crashes increases would logically mean that their overall crash risk is also higher. While it would have been helpful for the authors to look at all preventable crashes, the fact that they excluded some preventable crashes from the analysis does not invalidate the findings that long average daily work and excessive hours of weekly work increase the risk of a crash.

Knipling also claims that the authors should have looked at multi-vehicle and single-vehicle crashes separately. We see no reason why a study cannot look at crashes as a whole rather than segmenting them by the number of vehicles involved. True, multi-vehicle crashes have a different crash factor profile than single-vehicle crashes, but the same factor can increase the risk of either type of crash. In short, while the suggestions for methodological improvements are helpful, the authors' failure to conduct these extra analyses does not appear to invalidate or seriously compromise the findings of the studies.

ATA and others have argued that the Agency “has no basis” for claiming safety benefits associated with changes to the HOS rules. One of the primary safety impacts claimed by the NPRM was that long weekly work hours are associated with an increase in the risk of a crash—

i.e.,

that long hours over successive days result in cumulative fatigue, and cumulative fatigue results in increased crash risk. The transit bus operator studies analyzed the association between weekly working hours and preventable crash involvement and found a cumulative fatigue impairment effect that is stronger than that used by the Agency in evaluating the rule adopted today. While the Agency does not believe it would be valid to apply the cumulative fatigue impact of these transit bus operator studies to a rule governing over-the-road truck drivers, the studies do confirm that long hours of working per week are associated with decrements in driving performance and pose a safety hazard. The studies therefore provide further evidence that it may be wise to limit the amount of weekly work allowed to truck drivers.

In addition, the transit bus studies corroborate another effect used by the Agency in analyzing the impacts of the HOS rules: Long working hours are associated with fewer average hours of sleep per night. FMCSA used the relationship between work and sleep to estimate the health benefits associated with reductions in allowable daily and weekly work. The transit bus studies provide further evidence that long daily and weekly work hours are associated with sleep deficits. Chronic sleep deficits are associated with fatigue-impairment and long term adverse health consequences. Insufficient sleep therefore affects both public health and safety. Corroboration of the Agency's position that increases in work result in decreases in nightly sleep lends support to FMCSA decision to reduce the hours drivers can work.

E. Driving Time Limits

Beyond the arguments on the economic impact of the 11th hour, industry commenters generally stated that FMCSA had no data that demonstrate that the 11th hour is riskier than the 10th. NTSB, NIOSH, and the safety groups supported reducing driving time to 10 hours.

Comments on the Safety of the 11th Driving Hour.

Less than 10 percent of the commenters on this issue supported reducing the permissible driving time from 11 to 10 hours. Most of these commenters asserted that the reduction to a 10-hour driving time limit would improve safety. NTSB and NIOSH stated that the reduction to 10 hours would promote adequate sleep periods. NTSB stated that reducing driving time to 10 hours would also reduce time on task. Six commenters argued that the scientific evidence supports a 10-hour

driving time limit. The joint comments filed by Advocates

et al.

cited numerous studies to support their contention that the 10-hour driving time limit is supported both by “data on driver sleep patterns under the current, 11-hour limit and by the reduction in added driving exposure at the highest level of crash risk that would be eliminated.” Three commenters, including Advocates

et al.,

cited research that they asserted shows that crash risk increases well before the 11th hour of driving. NTSB and Advocates

et al.

cited studies that they stated show that extended periods of time awake and time on task have been associated with fatigue-related performance decrements and increased crash risk. NTSB argued that because at least some statistics indicate that the 11th hour of driving is more dangerous than any of the first 10, in the absence of completely relevant scientific data, FMCSA should err on the side of caution and reduce the driving time limit to 10 hours.

Advocates

et al.

stated that in the 2003 HOS final rule, FMCSA acknowledged that performance begins to degrade after the 8th hour on duty, but justified increasing the driving time limit to 11 hours by stating that other changes in the rule would make up for the added consecutive driving time at the highest rate of crash risk. They stated that “no evidence supports the supposition that increases in other aspects of the off-duty time provided under the current rule reduce the crash risk or driver fatigue experienced in the 11th consecutive hour of driving.” They noted that the appellate court that rejected the 2003 HOS rule cited this lack of support for the trade-off. Advocates

et al.

asserted that maintaining the 11-hour limit would constitute arbitrary and capricious agency action since FMCSA still lacks evidence that driving during the 11th consecutive hour is safer than, or at least as safe as, the truck crash risk experienced during driving hours prior to the 8th consecutive hour of operation.

Finally, Advocates

et al.

presented arguments to counter assertions that there is no new research data to support an FMCSA decision to adopt a 10-hour limit. They argued that the 11th hour limit was always unsupported by research, so no new evidence is necessary to rescind it. Further, they stated that there actually are data showing that, as of 2006, drivers are not getting any more rest than they were before the rule took effect in 2004. They argued that since scientific evidence indicates that the amount of sleep drivers are currently getting is less than the amount necessary to restore driver performance levels, revising the HOS rule is both necessary and appropriate.

ATA and most industry commenters argued that data and fatigue research do not show that a quantifiable safety benefit would result from reducing daily driving time from 11 to 10 hours, or that there is an increase in crash risk between the 10th and 11th hour of driving. Several commenters cited research studies that they asserted show that hours of driving is not a strong or consistent predictor of observed fatigue. These studies include the 2007 VTTI naturalistic driving study discussed in the NPRM (Hanowski (2007)), which ATA and others cited as showing no increase in crash risk between the 10th and 11th hours of driving. ATA asserted that although FMCSA expressed concerns about the VTTI study in the NPRM, the Agency has used that study in other rulemakings and has used other studies in the HOS rulemaking that had more severe sample size and composition flaws. Commenters, including ATA, also cited data that they asserted show that more crashes occur during the first few hours of driving, which they argued supports retaining the 11-hour daily driving limit.

FMCSA Response.

A new study conducted by the same VTTI researchers whose work was cited in the NPRM, and using the same approach praised by ATA and other commenters, has found that the risk of SCEs rises with the hours since coming on duty (Blanco).

Although Blanco found some increase in risk in the 11th hour, the effect is not significant. A stronger effect is related to hours worked each day and week. Given the high cost of eliminating the 11th hour and the ambiguous data, FMCSA has decided that it does not have an adequate basis to change the driving limit. The rule also substantially reduces the maximum weekly work time and ensures that drivers cannot work the maximum number of hours every week while giving the flexibility to do so occasionally. Some of the safety benefits and most of the health benefits derive from limiting long work hours.

Comments on the Use of the 11th Hour.

About 35 commenters submitted some information on the use of the 11th hour. Although one small carrier and a shipper association stated that most drivers maximize hours, many commenters, including ATA and other trucking associations, indicated that the 11th hour is used primarily for flexibility to account for unforeseen events. Some LTL carriers stated that some routes (often called “lanes”) have been rearranged to take advantage of the longer distances possible with 11 hours of driving time. Several large carriers submitted information on the frequency with which their drivers use the 11th hour—the percentages reported were 6 percent, 7 percent, 9 percent, 9.5 percent, 11 percent, and 15.26 percent.

A private carrier stated that one division uses the 11th hour 85 percent of the time, while the rest use it 10 percent of the time. Another private carrier stated that its drivers rarely reach the 11th hour. OOIDA reported that two thirds of the respondents to its on-line survey said they use it 1 to 4 times a week. Individual drivers and smaller carriers reported higher use of the 11th hour, although again it was not always possible to determine whether they were reporting the percentage of daily periods with a full 11 hours of driving or the percentage of drivers who used the 11th hour at some point over the period examined.

FMCSA Response.

None of the commenters provided data that could be used to estimate the actual level of use of the 11th hour, but in any case, FMCSA has not adopted a 10-hour limit.

Other Comments on Driving Limits.

Finally, a few commenters suggested alternative driving rules. OOIDA suggested that the 10-hour limit apply only to new drivers; another commenter suggested that drivers using paper logs be limited to 10 hours. Two commenters said that as the first hour is the most dangerous, FMCSA should require drivers to be on duty for one hour before driving to be sure they are awake.

FMCSA Response.

It is difficult to see how limiting a 10-hour rule to new drivers could be enforced. It is also not clear that new drivers are more prone to fatigue-related crashes than experienced drivers. The suggestion that drivers be on duty for an hour before driving is based on the assumption that the factors that lead to a high number of crashes in the first hour (which some studies do not show) are related to fatigue and sleep inertia. Fatigue may play a part in some of these crashes, but driving on secondary roads and the simple fact that all drivers drive the first hour are likely to be larger factors in first-hour crashes than fatigue. It is not clear why using paper logs would make longer driving times more fatiguing.

F. 30-Minute Break Provision

Comments.

A few commenters supported mandated breaks. NIOSH and NTSB supported a required break to reduce continuous time on task. Advocates

et al.

thought breaks were temporarily helpful, but not adequate to reduce fatigue.

Commercial Vehicle Safety Alliance (CVSA) and a few other commenters stated that required breaks would

complicate enforcement. A trucking association and others warned that the proposed requirement could cause conflicts for drivers transporting Department of Defense (DOD) shipments of security-sensitive materials that require continuous attendance. ATA, OOIDA, and others expressed similar concerns about conflicts with hazardous materials transportation requirements. The Truckload Carriers Association (TCA) and OOIDA added that the provision would undermine the ability of team operations to keep the freight moving with minimal stops and to have someone in charge of the shipment for the duration of the trip.

A few commenters suggested longer or shorter breaks. Many drivers misunderstood the rule and assumed that it required a break at 7 hours. Some argued that drivers would wait until 6.5 or 7 hours to take the break so they would not have to take another break. Two commenters supported a break from driving, but not from being on duty.

FMCSA Response.

FMCSA has revised the break provision in response to comments. If a driver wants to continue driving after 8 rather than 7 hours on duty as proposed, driving is not permitted if more than 8 hours have passed since the end of the driver's last off-duty or sleeper-berth period of at least 30 minutes. In other words, driving is prohibited if more than 8 consecutive hours have passed since a driver's last off-duty or sleeper-berth break of at least 30 minutes; after taking such a break (or a longer one), the driver may resume driving, provided he or she does not exceed the 11-hour driving limit. This change will make the break provision consistent with the sleeper-berth rule and address the concerns of team drivers that a break at the 7th hour will be disruptive. It will also mean that a driver working a full 14-hour day will be able to continue driving after the 8th hour on duty if he/she takes a single break between the 6th and 8th hour.

For a driver who is on a long-haul run that involves nothing but driving for the duty period, any break of at least 30 minutes taken between 3 and 8 hours on duty will meet the requirement. If a driver spends 2 hours loading at the beginning of the day, then has a 10-hour drive ahead of him, he can take a half-hour or more break at some point between the 4th and 8th hours after coming on duty, and then complete the rest of his 10 hours of driving without another break. If, as ATA and others argued, drivers are already taking breaks, the final rule should allow most of those breaks to be used to meet the requirement.

The Blanco and Jovanis (2011) studies demonstrate that breaks reduce the risk of crashes after the break, findings that are consistent with research on the impact of breaks on accident risks in other industrial sectors. Blanco analyzed SCEs in the hour preceding and after a break. This research found that any break from driving reduces risk in the hour following the break, but off-duty breaks produced the largest reduction. This study also showed that when non-driving activities (both work- and rest-related) were introduced during the driver's shift—creating a break from the driving task—these breaks significantly reduced the risk of being involved in an SCE during the 1-hour window after the break. The benefits of breaks from driving ranged from a 30- to 50-percent reduction in risk of SCEs (depending on the type of break from driving), with the greatest benefit occurring for off-duty (non-working) breaks.

Jovanis (2011) studied the effect of breaks from driving on crash risk. That analysis was unable to distinguish between on-duty breaks from driving and off-duty breaks. The analysis looked at the effects of one, two, or three breaks from driving in a day on the likelihood of crash involvement. The inclusion of any break was found to reduce the risk of a crash, and the effect of two breaks was found to be statistically significant.

In addition, O'Neill (1999) found that breaks improve performance on driving simulators. The study examined driver simulation performance following active breaks in which loading and unloading of a vehicle was simulated, and rest breaks. The study found that loading and unloading had mixed effects on driving performance, but that off-duty breaks improved performance. The driving simulations showed a decrease in simulator performance from the start of a driving period to the point at which a break was taken. After a break from driving, performance was restored temporarily, and then began to decline as the length of time since the last break increased.

To address the concerns raised about carriers of hazardous materials, FMCSA has added a new paragraph § 395.1(q) to allow drivers who are attending a motor vehicle transporting Division 1.1-1.3 explosives, but performing no other work, to log at least a half hour of the time spent attending the CMV toward the break. This time continues to be on-duty, so the driver will have to annotate his log to indicate when the break was taken. This exception will allow the driver to meet the requirements of 49 CFR 397.5 “Attendance and surveillance of motor vehicles” in the driving and parking rules for the transportation of hazardous materials to attend the vehicle at all times without violating the break requirement. FMCSA notes that Blanco found that such on-duty breaks provide some risk reduction in the hour following the break.

On the issue of enforcement, any new requirement makes enforcement more complex, but breaks are an easy concept to comprehend.

G. Restart

General Comments on the Restart.

NIOSH, Advocates

et al.,

and one carrier supported the changes to the restart provisions because they would help address fatigue issues for drivers operating at, near, or beyond the maximum permissible hours of service and would not affect compliance, given that many drivers already take weekends off. OOIDA, FedEx, TCA, and two carriers added that the current rule provided sufficient rest and sleep for drivers, regardless of whether the driver engaged in daytime, nighttime, or both types of operations. ATA referenced earlier published statements from the Agency in asserting that the 34-hour period was adequate. ATA argued that FMCSA should require long periods of “idle time” only if there is evidence that the current restart provisions may exacerbate problems with fatigue. Referring to fatigue associated with long driving hours, OOIDA said that the current rule allows drivers to return to their homes sooner than was possible under the old rule. OOIDA said that the proposed restart changes, based on FMCSA concerns of long duty hours resulting in fatigue, were unnecessary in light of anecdotal evidence regarding the actual use of the 34-hour restart. ATA stated that drivers do not use the restart to maximize hours, but for ease of recordkeeping and scheduling flexibility. OOIDA, citing the FMCSA Field Study data reported in the interim final rule published on December 17, 2007, stated that 67 percent of drivers take restarts of 44 hours or more. Schneider said that only 1.73 percent of its drivers had restarts between 34-40 hours; the average restart was 62 hours. A private carrier reported that 95 percent of its drivers' restarts exceeded 34 hours and 50 percent exceeded 58 hours.

FMCSA Response.

Most industry commenters argue that changes to the restart are not necessary because drivers are not using it to maximize hours. FMCSA agrees with ATA that some drivers do not use the restart to maximize hours, but for ease of recordkeeping and scheduling flexibility. If that is the case, then the

changes will have little impact. Only drivers who work more than 60 hours in 7 days or 70 hours in 8 days need the restart to obtain extra hours. Drivers who do not need the restart but who only use it to simplify bookkeeping will not lose work hours as a result of the changes because they can already work as many hours as they prefer without using the restart provision. Any driver who is taking two consecutive days off a week will not be affected. If drivers, in fact, average 44 to 52 hours on duty a week as ATA's data showed, these drivers will not be affected. A driver who only occasionally works maximum hours will not be affected because the rule will allow that driver to use the 34-hour restart once, with a longer break at the end of the subsequent week. Repeating what we said earlier on this subject, unless a driver knows that he is working less than 60 hours a week (

e.g.,

a regular 10-hour day, 5 days a week), he must keep a running 7- or 8-day total of on-duty hours to be sure he is within the limits regardless of the restart provision or the changes this rule makes to it. If a driver takes 34 hours or more off, he simply has a new point from which to keep the total, but he still needs to keep track of his total hours if he could be pressing the limits. Many drivers do these calculations in their heads without needing to write them down. This calculation, at any rate, is both simple (subtracting one day's hours from the running total, then adding another day's hours to the result) and can be conducted during waiting or refueling time, and so would result in de minimus effort and cost to the driver. Furthermore, any driver who only takes a restart once a week would not have to keep a tally of hours back beyond the previous restart, because that restart would reset the driver's cumulative available hours under the new rule, as it does under the current rule. Any driver who works relatively moderate hours would be unlikely to take multiple restarts in a week, or have to worry about violating the cumulative weekly hour limit.

When used to maximize hours, the 34-hour restart adopted in 2003 allows a driver to work as many as 84 hours in 7 days. Over time, drivers could average 82 hours a week. It is important to note that for a driver to work these long hours he/she must be working close to 14 hours a day 6 days out of 7. The final rule reduces the maximum weekly hours by only 3 hours for 1 week, but over time the average maximum hours per week will be about 70 hours in 7 days. Despite the reduction in the weekly work hours, drivers will retain significant operational flexibility because they will still be able to work long hours in 1 week, while balancing those periods with shorter subsequent work weeks to obtain more rest.

Comments on the 2-Night Requirement.

NTSB, Advocates, a safety official for a carrier, and about 80 other commenters supported the proposal that each restart include two nighttime periods.

The majority of commenters on this issue opposed the requirement. CVSA's comments were a summary of points raised by other opposition comments. CVSA said the proposal would reduce driver flexibility, unduly burden carrier operations that included driving time from midnight to 6 a.m., and add more CMVs to an already overburdened highway system at peak hours. Further, CVSA said it was difficult to determine whether driver health benefits would result from the change. CVSA claimed the 2-night requirement would disrupt regular weekly rest cycles for some drivers, leading to more driver performance issues and falsification of driver records of duty status (RODS). CVSA proposed a consecutive 48-hour restart period (a position not shared by other opponents of the proposal).

Some commenters stated that the two-night requirement could extend the restart up to 52 to 63 hours (commenters offered differing estimates of the shortest period necessary to comply with the proposal). One association stated that the 2003 rule allows team drivers to be idle for only 24 hours, but the 2-night requirement would extend that time period to 41 hours.

Commenters also stated that the provision would unfairly affect nighttime drivers. The California Highway Patrol (CHP) stated that the actual requirement would vary for drivers on cross-country trips because their time is determined based on their home terminal, so that the 12 a.m. to 6 a.m. period might be either 9 p.m. to 3 a.m. if a driver from an east-coast terminal took a restart in the Pacific time zone or 3 a.m. to 9 a.m. if a west-coast driver needed a restart in the Eastern time zone.

FMCSA Response.

As discussed above, FMCSA has shortened the 2 nighttime periods the driver must be off duty to 1 a.m. to 5 a.m. The impact of the 2-night requirement on the restart length will vary with the time a driver goes off duty and the time he resumes work. For drivers who work a regular schedule that starts at night, the 2-night provision will generally require the driver to take 2 plus days off to maintain the regular work schedule. For example, a long-haul driver who normally drives at night may start at 11 p.m. and work until 10 a.m. 6 days a week; the driver will need to take 2 days plus 13 hours off to obtain the 2 night periods and be able to return to work for an 11 p.m. start. For drivers who work at night irregularly, the restart length may be considerably shorter because the driver may be able to stop in time to get 2 nights into a shorter time frame; a driver who can stop between 7 p.m. and 1 a.m. can take the minimum 34 hours off while obtaining 2 periods that include 1 a.m. to 5 a.m.

Some teams do currently manipulate the restart to shorten it to 24 hours; the non-driving team member counts his 10-hour off-duty time while the other driver is driving toward the 34-hour restart, both drivers are then off duty for 24 hours, and the driver with 34 hours off duty starts driving while the second driver obtains another 10 hours off. Exactly how much longer the 2-night requirement will make the restart will depend on stopping time and whether teams overlap restarts. At a minimum, stopping a truck driven by a team for the 28 hours between 1 a.m. one morning and 5 a.m. the next morning would provide two consecutive nighttime rest periods for both drivers. Both drivers could meet the 34-hour off-duty requirement for a restart if one of them was off-duty (while the other drove) for at least 6 hours before the truck stopped, and if the other stayed off-duty for at least another 6 hours after the truck started again. As a specific example, suppose the first team member drives from 5 p.m. until 1 a.m. Saturday, during which time the second team member is off-duty in the sleeper berth, and then both drivers go off-duty for 28 hours until 5 a.m. Sunday. Because this time off includes both Saturday from 1 a.m. to 5 a.m. and Sunday from 1 a.m. to 5 a.m., both drivers comply with the 2-night rule. By 5 a.m. on Sunday, the second team member will have been off-duty for a total of 36 hours (8 hours in the sleeper berth plus 28 hours while the truck is stopped), more than meeting the minimum 34-hour off-duty requirement for a restart. Thus, the second team member will be eligible to start driving. The first team member will, by that point, have had only 28 hours off-duty, but will meet the 34-hour requirement so long as he or she remains off-duty for at least the first 6 hours after the truck starts moving.

The time that the truck would have to remain stopped for both drivers to meet the restart requirements would depend on the time that the truck stopped. If it stopped at midnight instead of 1 a.m., for example, the team would have to be off-duty for 29 hours instead of 28 for

both drivers to be off-duty for two consecutive periods between 1 a.m. and 5 a.m.; similarly, if the truck stopped at 10 p.m., it would have to remain at rest for 31 hours to reach 5 a.m. a second time, and so forth. The earlier the truck stopped, the longer it would have to remain stopped; but the time could be minimized by planning on the part of the team.

It should be noted that teams can do two cross-country runs before needing a restart. If they average 50 mph, they can drive cross country in 50 hours; at the end of the trip, one driver will have used 20 hours of driving time and the other 30. Even allowing for loading and unloading, both drivers will have enough hours to make a return trip before approaching the point when a restart is needed. Many teams might not have multi-week schedules that rely on short restarts.

As for the possibility that night drivers will “flip” their sleep schedule during a restart (

i.e.,

change from daytime to nighttime sleep), it is likely that they do so regardless of the restart length, particularly when taking a restart at home; otherwise they would have minimal time to spend with their (day-oriented) families. Because daytime sleep is shorter and of lower quality, switching to a night sleep helps to at least attenuate the sleep debt a driver working maximum hours builds up (Åkerstedt 2003), (Hossain). Research consistently indicates that it is difficult to get more than 4 to 6 hours of sleep during the day; sleeping during the day on days off, therefore, simply increases the driver's sleep debt. With respect to CVSA's question about whether there was a health impact of the 2-night provision, these health effects are in part related to the increase in weekly sleep; the main health impact of the restart provision, however, is the result of the reduced maximum hours a driver can work over time.

The Agency knows of no reason why drivers would stop driving at night, putting more trucks on the road during rush hours, to avoid the extra hours that may be needed to meet the 2-night requirement. As discussed previously, most drivers who regularly drive overnight do not work enough hours to need a restart and, therefore are not subject to the 2-night requirement. Pick-up and delivery times are, in any case, set by shippers and receivers, not by the drivers. Drivers and carriers will have to adjust the hours worked for those working the longest hours, rather than change driving patterns.

CVSA's concern about concealment of HOS violations is reasonable, but mandatory use of EOBRs, if adopted by the Agency as proposed in a separate rulemaking proceeding on February 1, 2011, would make cheating more difficult because the driver would not be able to mislabel driving time.

On the issue raised by CHP about the basis for determining the 1 a.m. to 5 a.m. period, drivers' logs are based on the time zone of their home terminal. The 2-night periods are, therefore, set by the time at the home terminal. This approach will make it easier for drivers and schedulers and not introduce new complexity to the r

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