Hours of Service of Drivers

DEPARTMENT OF TRANSPORTATION

Federal Motor Carrier Safety Administration

49 CFR Parts 385 and 395

[Docket No. FMCSA-2018-0248]

RIN 2126-AC19

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 provide greater flexibility for drivers subject to those rules without adversely affecting safety. The Agency expands the short-haul exception to 150 air-miles and allows a 14-hour work shift to take place as part of the exception; expands the driving window during adverse driving conditions by up to an additional 2 hours; requires a 30-minute break after 8 hours of driving time (instead of on-duty time) and allows an on-duty/not driving period to qualify as the required break; and modifies the sleeper berth exception to allow a driver to meet the 10-hour minimum off-duty requirement by spending at least 7, rather than at least 8 hours of that period in the berth and a minimum off-duty period of at least 2 hours spent inside or outside of the berth, provided the two periods total at least 10 hours, and that neither qualifying period counts against the 14-hour driving window.

DATES:

This final rule is effective September 29, 2020. Petitions for Reconsideration of this final rule must be submitted to the FMCSA Administrator no later than July 1, 2020.

FOR FURTHER INFORMATION CONTACT:

Mr. Richard Clemente, Federal Motor Carrier Safety Administration, 1200 New Jersey Avenue SE, Washington, DC 20590-0001, (202) 366-4325,

MCPSD@dot.gov.

If you have questions about viewing material in the docket, contact Docket Operations, (202) 366-9826.

SUPPLEMENTARY INFORMATION:

This final rule is organized as follows:

I. Availability of Rulemaking Documents

II. Executive Summary

A. Purpose and Summary of the Regulatory Action

B. Summary of Major Provisions of the Final Rule

C. Costs and Benefits

III. Abbreviations and Acronyms

IV. Legal Basis for the Rulemaking

V. Background

A. OOIDA Petition for Rulemaking

B. TruckerNation Petition for Rulemaking

C. Additional Petitions for Rulemaking

D. 2018 ANPRM

E. ANPRM Public Listening Sessions

F. 2019 NPRM

VI. Stakeholder Engagement Following Publication of the NPRM

A. Summary of the Motor Carrier Safety Advisory Committee Meeting

B. Summary of Comments Presented at the NPRM Public Listening Sessions

C. Summary of the Written Comments to the NPRM; FMCSA Responses to the Written Comments

VII. Discussion of the Rule

A. Short-Haul Operations

B. Adverse Driving Conditions

C. 30-Minute Break

D. Sleeper Berth

E. Split-Duty Provision

F. TruckerNation Petition

G. Petitions for Rulemaking Submitted After the NPRM

H. Compliance Date for the Rulemaking

VIII. International Impacts

IX. Section-by-Section Analysis

A. Section 395.1 Scope of Rules in This Part

B. Section 395.3 Maximum Driving Time for Property-Carrying Vehicles

X. Regulatory Analyses

A. Executive Order (E.O.) 12866 (Regulatory Planning and Review), E.O. 13563 (Improving Regulation and Regulatory Review), and DOT Regulatory Policies and Procedures

B. E.O. 13771 (Reducing Regulation and Controlling Regulatory Costs)

C. Congressional Review Act

D. Regulatory Flexibility Act

E. Assistance for Small Entities

F. Unfunded Mandates Reform Act of 1995

G. Paperwork Reduction Act

H. E.O. 13132 (Federalism)

I. Privacy

K. E.O. 13783 (Promoting Energy Independence and Economic Growth)

L. E.O. 13175 (Indian Tribal Governments)

M. National Technology Transfer and Advancement Act (Technical Standards)

N. Environment (Clean Air Act, NEPA)

I. Availability of Rulemaking Documents

For access to docket FMCSA-2018-0248 to read background documents and comments received, go to

http://www.regulations.gov

at any time, or to Docket Operations at U.S. Department of Transportation, Room W12-140, 1200 New Jersey Avenue SE, Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. To be sure someone is there to help you, please call (202) 366-9317 or (202) 366-9826 before visiting the Docket Operations

II. Executive Summary

A. Purpose and Summary of the Regulatory Action

The implementation of the Electronic Logging Device (ELD) rule (80 FR 78292, December 16, 2015) and ELDs' ability to increase compliance with HOS regulations for drivers of commercial motor vehicles (CMVs) prompted numerous requests for FMCSA to consider revising certain HOS provisions to provide greater flexibility. The Agency received requests from members of Congress and multiple stakeholders seeking relief from certain provisions. In response, FMCSA published an advance notice of proposed rulemaking (ANPRM) on August 23, 2018 (83 FR 42631) and held five public listening sessions. The Agency published a notice of proposed rulemaking (NPRM) on August 22, 2019 (84 FR 44190) and held two additional public listening sessions. This final rule revises the HOS regulations to provide greater flexibility for drivers subject to those rules without adversely affecting safety.

B. Summary of Major Provisions of the Final Rule

This final rule will improve efficiency without compromising safety by providing flexibility for drivers in four areas without changing the maximum allowable driving time. The rule extends the maximum duty period allowed under the short-haul exception in 49 CFR 395.1(e)(1) from 12 hours to 14 hours. It also extends the maximum radius in which the short-haul exception applies from 100 to 150 air-miles. FMCSA modifies the definition of adverse driving conditions so that the adverse driving conditions exception may be applied based on the driver's (in addition to the dispatcher's) knowledge of the conditions after being dispatched, and extends the driving window during which the current exception for extended driving time may be used by up to 2 hours for truck and bus operations under §§ 395.3(a)(2) and 395.5(a)(2), respectively. The Agency makes the 30-minute break requirement for drivers of property-carrying CMVs in § 395.3(a)(3)(ii) applicable only when a driver has driven (instead of having been on-duty) for a period of 8 hours without at least a 30-minute non-driving interruption. The break may be satisfied by any non-driving period of 30 minutes,

i.e.,

on-duty, off-duty, or sleeper berth time. FMCSA also modifies the sleeper berth requirements to (1) allow drivers to take their required 10 hours off-duty in two periods, provided one off-duty period (whether in or out of the sleeper berth) is at least 2 hours long and the other involves at least 7 consecutive hours spent in the sleeper berth, and (2) add that neither period counts against the maximum 14-hour driving window in § 395.3(a)(2).

The Agency excludes from the final rule its proposal to allow a single off-duty period of up to 3 hours to be

excluded from the 14-hour driving window, for reasons explained later in the document.

C. Costs and Benefits

This final rule will result in increased flexibility for drivers and a quantified reduction in costs for motor carriers. Federal and State governments will incur one-time training costs of approximately $8.6 million for training inspectors on the new requirements. The Federal Government also will incur a one-time electronic Record of Duty Status (eRODS) software update cost of approximately $20,000. The change to the 30-minute break requirement will result in a reduction in opportunity cost, or a cost savings, for motor carriers. FMCSA estimates the 10-year motor carrier cost attributable to the changes to the 30-minute break provision at −$2,814.3 million (or a cost savings of $2,814.3 million). As shown in Table 1, FMCSA estimates the total costs of this final rule at −$2,366.2 million (or $2,366.2 million in cost savings) discounted at 3 percent, and −$1,917.5 million (or $1,917.5 million in cost savings) discounted at 7 percent. Expressed on an annualized basis, this equates to −$277.4 million in costs (or $277.4 million in cost savings) at a 3 percent discount rate, and −$273.0 million in costs (or $273.0 million in cost savings) at a 7 percent discount rate. All values are in 2018 dollars.

There are a number of other potential cost savings of this final rule that FMCSA considered but, due to uncertainty about driver behavior, could not quantify on an industry level. These non-quantified cost savings include increased flexibility resulting from the extension of the duty day and the air-mile radius for those operating under the short-haul exception; the increased options for drivers to respond to adverse driving conditions during the course of their duty period; reduced need to apply for exceptions from the 30-minute break requirement and for special eligibility for the short-haul exception; and increased flexibility afforded to drivers, such as increased options with regard to on-duty and off-duty time resulting from changes to the 30-minute break requirement and the sleeper berth provisions.

None of the provisions in this final rule will increase the maximum allowable driving time, but may result in changes to the number of hours driven, or hours worked during a given work shift.

1

The flexibilities in this final rule are intended to allow drivers to shift their drive and work time to mitigate the impacts of certain variables (

e.g.,

weather, traffic, detention times, etc.) and to take breaks without penalty when they need rest. FMCSA does not anticipate that any of these time shifts will negatively impact drivers' health.

1

For example, with the newly revised short-haul provisions in this final rule, a driver can drive for up to 11 hours maximum in the shift, and be on-duty (not driving) for a maximum of at least 3 more hours, and remain in compliance with the rule's short-haul exception provisions, assuming the driver returned to the normal work reporting location within 14 hours, and within a 150-air mile radius. By comparison, in the prior HOS short-haul exception regulations, a driver utilizing this exception was allowed to drive for up to 11 hours maximum in the shift, but had to return to the normal work reporting location within 12 (not 14) hours and 100 air miles—allowing only 1 other hour of on-duty (not driving) time.

FMCSA notes that drivers of property-carrying CMVs are still prohibited from driving more than 11 hours during a work shift (13 hours under the adverse driving conditions exception) and driving is prohibited after an individual accumulates 14 hours of on-duty time (16 hours under the adverse driving conditions exception). Because the rule provides greater flexibility for drivers to take breaks from the driving tasks and greater flexibility to obtain recuperative sleep, the rule will not have an adverse impact on drivers' health.

As discussed later in this document and in the RIA for this final rule, FMCSA anticipates that individual drivers may see a change in their work hours (both driving and non-driving) or vehicle miles traveled (VMT), but this final rule will not result in an increase in freight movement or aggregate VMT. Aggregate VMT is determined by many factors, including market demand for transportation services. FMCSA does not anticipate that the changes in this final rule, which produce an annual cost savings to carriers of 0.03 percent of total trucking revenues of nearly $800 billion in 2018, are sufficient to stimulate demand in the freight market, but acknowledges that freight loads may shift from one carrier or driver to another. After consideration of the potential impacts, FMCSA has determined that this final rule will not adversely affect driver fatigue levels or safety. Table 2 summarizes the changes in this rule.

Table 1—Total 10-Year and Annualized Costs of the Final Rule

[In millions of 2018$]

Year

Federal

and state

government cost

Cost due to changes in

30-min break provision

Total costs—undiscounted

Total costs—

(7 percent

discount rate)

Total costs—

(3 percent

discount rate)

A

B

C = A + B

2020

$8.6

($98.3)

($89.7)

($83.8)

($87.1)

2021

0.0

(296.1)

(296.1)

(258.6)

(279.1)

2022

0.0

(297.5)

(297.5)

(242.9)

(272.3)

2023

0.0

(298.9)

(298.9)

(228.0)

(265.6)

2024

0.0

(300.3)

(300.3)

(214.1)

(259.1)

2025

0.0

(301.8)

(301.8)

(201.1)

(252.7)

2026

0.0

(303.2)

(303.2)

(188.8)

(246.5)

2027

0.0

(304.6)

(304.6)

(177.3)

(240.5)

2028

0.0

(306.1)

(306.1)

(166.5)

(234.6)

2029

0.0

(307.5)

(307.5)

(156.3)

(228.8)

Total 10-Year Costs

(1,917.5)

(2,366.2)

Total Annualized Costs

(273.0)

(277.4)

(a) Values shown in parentheses are negative values (

i.e.,

less than zero) and represent a decrease in cost or a cost savings.

Table 2—Revised Requirements

HOS provision

Existing requirement

Revised requirement

Impacts

Short-Haul

Drivers using the short-haul (100 air-mile radius) exception may not be on-duty more than 12 hours

Extends the maximum duty period allowed under the short-haul exception from 12 hours to 14 hours

Increases the number of drivers able to take advantage of the short-haul (150 air-mile) exception.

Drivers using the short-haul (150 air-mile radius) exception applicable to drivers not requiring a CDL may not drive beyond the 14th or 16th hour on-duty, depending upon the number of days on duty

Extends the maximum radius of the short-haul exception from 100 to 150 air-miles

Potentially shifts work and drive time from long-haul to short-haul exception, or from driver to driver.

Minimum or no change to hours driven or aggregate VMT.

Adverse Driving Conditions

A driver may drive and be permitted or required to drive a CMV for not more than 2 additional hours beyond the maximum time allowed. However, this does not currently extend the maximum “driving windows.”

Allows a driver to extend the maximum “driving window” by up to 2 hours during adverse driving conditions. This change applies both to drivers of property-carrying CMVs (14-hour “driving window”) and passenger-carrying CMVs (15-hour “driving window”)

Increases the use of the adverse driving condition provision.

Allows driving later in the workday, potentially shifting forward the hours driven and VMT travelled.

Allows drivers time to park and wait out the adverse driving condition or to drive slowly through it. This has the potential to decrease crash risk relative to current requirements, assuming drivers now drive through adverse driving conditions.

No increase in freight volume or aggregate VMT.

30-minute break

If more than 8 consecutive hours have passed since the last off-duty (or sleeper berth) period of at least half an hour, a driver must take an off-duty break of at least 30 minutes before driving

Requires a 30-minute break only when a driver has driven for a period of 8 hours without at least a 30-minute interruption. If required, the break may be satisfied by any non-driving period of 30 minutes,

i.e.

on-duty, off-duty, or sleeper berth time

Increases the on-duty/non-driving time by up-to 30 minutes, or allow drivers to reach their destination earlier.

No anticipated fatigue effect because drivers continue to be constrained by the 11-hour driving limit and would continue to receive on-duty/non-driving breaks from the driving task.

Minimal or no change to hours driven or VMT, as the current off-duty break only impacts these factors if the schedule required driving late within the 14-hour driving window.

Split-Sleeper berth

A driver can use the sleeper berth to get the “equivalent of at least 10 consecutive hours off-duty.” To do this, the driver must spend at least 8 consecutive hours (but less than 10 consecutive hours) in the sleeper berth. This rest period does not count as part of the 14-hour limit. A second, separate rest period must be at least 2 (but less than 10) consecutive hours long. This period may be spent in the sleeper berth, off-duty, or sleeper berth and off-duty combined. It does count as part of the maximum 14-hour driving window

Modifies the sleeper berth requirements to allow drivers to take their required 10 hours off-duty in two periods, provided one off-duty period (whether in or out of the sleeper berth) is at least 2 hours long and the other involves at least 7 consecutive hours spent in the sleeper berth. Neither period counts against the maximum 14-hour driving window

Allow one hour to be shifted from the longer rest period to the shorter rest period.

Potentially increase the use of sleeper berths because drivers using a berth have additional hours to complete 11 hours of driving (by virtue of excluding the shorter rest period from the calculation of the 14-hour driving window).

No anticipated negative effect on fatigue because aggregate drive limits and off-duty time remains unchanged.

Hours driven or VMT may change for an individual driver on a given work shift (by increased use of the sleeper berth). Total hours driven or aggregate VMT would remain the same.

III. Abbreviations and Acronyms

1935 Act The Motor Carrier Act of 1935

1984 Act The Motor Carrier Safety Act of 1984

AASM The American Academy of Sleep Medicine

ABA American Bus Association

ACPA American Concrete Pumping Association

Advocates Advocates for Highway and Auto Safety

ANPRM Advance notice of proposed rulemaking

ATA American Trucking Associations, Inc.

BLS Bureau of Labor Statistics

CAA Clean Air Act

CFR Code of Federal Regulations

CMV Commercial motor vehicle

CRA Congressional Review Act

CVSA Commercial Vehicle Safety Alliance

DOT Department of Transportation

ELD Electronic logging device

E.O. Executive Order

eRODS Electronic record of duty status

FAA Federal Aviation Administration

FMCSA Federal Motor Carrier Safety Administration

FMCSRs Federal Motor Carrier Safety Regulations

FR Federal Register

FRA Federal Railroad Administration

HOS Hours of service

IIHS Insurance Institute for Highway Safety

IBT International Brotherhood of Teamsters

IRFA Initial Regulatory Flexibility Analysis

LTL less-than-truckload

MCSAC Motor Carrier Safety Advisory Committee

MCMIS Motor Carrier Management Information System

NAPA The National Asphalt Pavement Association

National Academies National Academies of Sciences, Engineering, and Medicine

ND Naturalistic Driving

NEPA National Environmental Policy Act

NPPC National Pork Producers Council

NPRM Notice of proposed rulemaking

NSC The National Safety Council

NTSB National Transportation Safety Board

OMB Office of Management and Budget

OOIDA Owner-Operator Independent Drivers Association

RODS Record of duty status

RFA Regulatory Flexibility Act

SBA The Small Business Administration

SCE Safety critical event

§ Section

Secretary Secretary of Transportation

SBREFA Small Business Regulatory Enforcement Fairness Act of 1996

TIA Transportation Intermediaries Association

The Coalition National Coalition on Truck Parking

TL truckload

TRB Transportation Research Board

TruckerNation TruckerNation.org

TSC Truck Safety Coalition

UDA United Drivers Association

USDOT The U.S. Department of Transportation

U.S.C. United States Code

USTA United States Transportation Alliance

VMT vehicle miles traveled

VTTI Virginia Tech Transportation Institute

IV. Legal Basis for the Rulemaking

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

The HOS regulations below concern the “maximum hours of service of employees” of both motor carriers and motor private carriers, as authorized by the 1935 Act.

This rule also is based on the authority of the 1984 Act, as amended, which provides broad concurrent authority to regulate drivers, motor carriers, and vehicle equipment. It requires the Secretary of Transportation (Secretary) to “prescribe regulations on commercial motor vehicle safety. The regulations shall prescribe minimum safety standards for commercial motor vehicles.” The 1984 Act also requires that: “At a minimum, the regulations shall ensure that—(1) commercial motor vehicles are maintained, equipped, loaded, and operated safely; (2) the responsibilities imposed on operators of commercial motor vehicles do not impair their ability to operate the vehicles safely; (3) the physical condition of operators of commercial motor vehicles is adequate to enable them to operate the vehicles safely . . .; (4) the operation of commercial motor vehicles does not have a deleterious effect on the physical condition of the operators; and (5) an operator of a commercial motor vehicle is not coerced by a motor carrier, shipper, receiver, or transportation intermediary to operate a commercial motor vehicle in violation of a regulation promulgated under this section . . .”. (49 U.S.C. 31136(a)(1)-(5)).

This rule is based specifically on section 31136(a)(2) and, less directly, sections 31136(a)(3) and (4). To the extent section 31136(a)(1) focuses on the mechanical condition of CMVs, that subject is not included in this rulemaking. However, as the phrase “operated safely” in paragraph (a)(1) encompasses safe driving practices, this final rule also addresses that mandate. To the extent section 31136(a)(4) focuses on the health of the driver, the Agency addresses that issue below. As for section 31136(a)(5), FMCSA anticipates that because the rule makes the HOS regulations more flexible, the rule will not increase the risk that drivers will be coerced to operate a commercial motor vehicle in violation of the regulations.

Before prescribing regulations under these authorities, FMCSA must consider their “costs and benefits” (49 U.S.C. 31136(c)(2)(A) and 31502(d)). Those factors are addressed below.

V. Background

For an extended discussion of the history of the HOS regulations, please see the NPRM (84 FR 44190, at 44193-44196, August 22, 2019). Following implementation of the ELD rule and increased accuracy in HOS tracking, FMCSA received feedback from members of Congress and other interested parties expressing the need for additional flexibility for drivers under the HOS rules.

A. OOIDA Petition for Rulemaking

On February 13, 2018, the Owner-Operator Independent Drivers Association (OOIDA) petitioned FMCSA to amend the HOS rules to allow drivers to take an off-duty rest break for up to 3 consecutive hours once per 14-hour driving window. OOIDA requested that the rest break stop the 14-hour clock and extend the latest time a driver could drive after coming on-duty.

2

However, drivers would still be limited to 11 hours of driving time and required to have at least 10 consecutive hours off-duty before the start of the next work shift.

2

Available at

https://www.regulations.gov/document?D=FMCSA-2018-0248-1210.

OOIDA's petition also included a request that the Agency eliminate the 30-minute break requirement. The organization explained that there are many operational situations where the 30-minute break requires drivers to stop when they do not feel tired.

B. TruckerNation Petition for Rulemaking

On May 10, 2018, TruckerNation petitioned the Agency to revise the prohibition against driving after the 14th hour following the beginning of the work shift.

3

As an alternative, the organization requested that the Agency prohibit driving after the driver has accumulated 14-hours of on-duty time.

3

Available at

https://www.regulations.gov/document?D=FMCSA-2018-0248-0003.

In addition, TruckerNation requested that FMCSA allow drivers to use multiple off-duty periods of 3 hours or longer in lieu of having 10 consecutive hours off-duty and eliminate the 30-minute break requirement.

C. Additional Petitions for Rulemaking

Two additional petitions for rulemaking were received: One from the United States Transportation Alliance (USTA) and one from the United Drivers Association (UDA).

4

The petitions were not discussed in the ANPRM due to the timing of receipt; however, they were reviewed and considered in the development of the NPRM.

4

Available at

https://www.regulations.gov/document?D=FMCSA-2018-0248-2550

and

https://www.regulations.gov/document?D=FMCSA-2018-0248-0342.

The USTA petition proposed an HOS rule that would prohibit driving after 80 hours on-duty in a work week (instead of the current limits in §§ 395.3(b) and 395.5(b)), and allow a 14-hour day for driving or other work duties. Drivers' remaining 10 hours would include 2 hours of off-duty time, and 8 hours of sleeper berth time that could be split into two segments, with a minimum of 2 hours per segment. The 80-hour clock would be reset by 24 hours off-duty. The petition is included in the docket referenced at the beginning of this notice.

The UDA proposal maintained the 14/10 HOS rule; however, the 10 hours off-duty could be split into two 5-hour sleeper berth periods. The weekly on-

duty time, after which driving would be prohibited, would be 80 hours in an 8-day period, with a 24-hour restart, similar to that proposed by USTA. The petition is included in the docket referenced at the beginning of this notice.

D. 2018 ANPRM

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

E. ANPRM Public Listening Sessions

FMCSA held a series of public listening sessions following the release of the ANPRM. These were held in Dallas, Texas, on August 24, 2018; Reno, Nevada, on September 24, 2018; Joplin, Missouri, on September 28, 2018; Orlando, Florida, on October 2, 2018; and Washington, DC, on October 10, 2018.

5

Transcripts of those listening sessions are available in the public docket for the rulemaking, and are available to stream at

https://www.fmcsa.dot.gov/mission/policy/public-listening-sessions-hours-service.

5

Listening sessions were announced in the

Federal Register

at 83 FR 42631, August 23, 2018; 83 FR 45204, September 6, 2018; 83 FR 47589, September 20, 2018; 83 FR 48787, September 27, 2018, and 83 FR 50055, October 4, 2018. The listening session scheduled for September 14, 2018 in Washington, DC was canceled and rescheduled.

F. 2019 NPRM

FMCSA published an NPRM on August 22, 2019 (84 FR 44190). This NPRM requested comment on five topics: (1) Altering the short-haul exception to the record of duty status (RODS) requirement available to certain CMV drivers, (2) modifying the adverse driving conditions exception, (3) increasing flexibility for the 30-minute break rule by requiring a break after 8 hours of driving time (instead of on-duty time) and allowing on-duty/not driving periods to qualify as breaks, (4) modifying the sleeper berth exception to allow a driver to spend a minimum of 7 hours in the berth combined with a minimum 2-hour off-duty period, provided the combined periods total 10 hours and allowing neither period to count against the maximum 14-hour driving window, and (5) allowing one off-duty break that would pause a truck driver's 14-hour driving window.

The Agency held two public listening sessions with the first being conducted at the Great American Truck Show on August 23, 2019, in Dallas, Texas. The second listening session was held at the United States Department of Transportation (DOT) in Washington, DC on September 17, 2019.

6

Transcripts of those listening sessions are available in the public docket for the rulemaking.

6

Listening sessions were announced in the

Federal Register

at 84 FR 43097, August 20, 2019, and 84 FR 45940, September 3, 2019.

VI. Stakeholder Engagement Following Publication of the NPRM

A. Summary of the Motor Carrier Safety Advisory Committee Meeting

On August 28, 2019, FMCSA announced that a public meeting of the Motor Carrier Safety Advisory Committee (MCSAC) would be held on September 30, 2019, and October 1, 2019 (84 FR 45201). As part of the Agency's efforts to engage its stakeholders and State partners in a conversational setting rather than waiting until the end of the public comment period and relying solely on submissions to the rulemaking docket, the MCSAC was asked to review the NPRM and provide feedback to the Agency. The process involved deliberations among the MCSAC members with Agency representatives present to answer questions about the contents of the NPRM and regulatory impact analysis.

In its report issued on October 15, 2019,

https://www.fmcsa.dot.gov/advisory-committees/mcsac/task-19-1-hos-report,

the MCSAC stated that it would need more information to understand the potential impacts of the proposed changes. Additionally, the MCSAC expressed concern that the rulemaking may not provide quantitative improvements to safety, although the NPRM's preamble indicated the rulemaking would increase flexibility without reducing safety. The MCSAC discussed the history of certain hours-of-service (HOS) provisions to understand the Agency's rationale for the current requirements and the reasons for proposing changes, highlighting the need to consider data and information presented by commenters to the rulemaking docket before making any final decisions about changes to the HOS rules. The MCSAC considered potential enforcement challenges associated with the proposed changes, including discussions that the use of the increased flexibility should be at the driver's discretion. The MCSAC also stated that drivers may be pressured by shippers/receivers to use the flexibility to go into an off-duty status rather than addressing detention time issues. Finally, there was concern that the Agency should not provide additional HOS flexibility to high-risk carriers with demonstrated safety performance problems and difficulty achieving compliance with the current HOS rules.

In keeping with the intent of its task to the MCSAC, the Agency did not attempt to influence the committee's deliberations or express views concerning the MCSAC's report as it was being drafted by the committee during the public meeting. The Agency used the opportunity to hear the initial reactions of a cross section of stakeholders and State partners to the HOS proposals in anticipation of the formal written comments that would be submitted to the rulemaking docket.

B. Summary of Comments Presented at the NPRM Public Listening Sessions

FMCSA held two public listening sessions during the comment period for the NPRM as part of the Agency's efforts to engage the public in a conversational setting to get a sense of their initial reactions rather than waiting until the end of the public comment period and relying solely on submissions to the rulemaking docket. During the listening sessions, a panel of Agency officials took in-person public comments and solicited online comments. The panel also answered questions and clarified parts of the NPRM when requested. Both sessions are available online, and transcripts have been placed in the docket.

7

Because the same substantive comments were also submitted in writing to the docket, FMCSA responds to these comments in the responses to written comments below.

7

Available at

https://www.fmcsa.dot.gov/mission/policy/public-listening-session-live-stream-hours-service-drivers https://youtu.be/MHo6OjoBAfk, https://www.regulations.gov/document?D=FMCSA-2018-0248-8166,

and

https://www.regulations.gov/document?D=FMCSA-2018-0248-8167,

last accessed February 2, 2020.

In keeping with the intent of the public meetings, the Agency did not attempt to influence the participants' beliefs or opinions. The Agency used the opportunity to hear the initial reactions of interested parties to the HOS rule in anticipation of the formal written comments that would be submitted to the rulemaking docket. Throughout the public listening session participants were encouraged to submit written comments to the rulemaking docket and to include any information (

e.g.,

research reports or studies, etc.) and data they would like the Agency to consider.

Short-haul.

Many commenters agreed with the proposed extension of the workday to 14 hours. Several commenters requested clarification of how the proposed changes would interact with each other, and about ELD use. Questions about the question of returning to their normal work reporting location were asked.

Adverse Driving Conditions.

Most commenters spoke positively of the proposed changes to the adverse driving conditions rule. Several requested that the Agency clarify the criteria for acceptable use of this exception. Many commenters asked for expansion of the definition of “adverse driving conditions”. Commenters also wanted information regarding the impact on total driving-day and cumulative hours.

30-Minute Break.

Most commenters requested that the 30-minute break requirement be eliminated, arguing that it has a negative impact on safety by forcing drivers to stop when they did not need a break and to skip breaks when they need to stop because they cannot afford to lose the drive time. Other commenters provided many suggestions for additional flexibility concerning the 30-minute break.

Split-Sleeper Berth.

Many commenters asked for clarification of the proposed sleeper berth provisions. Some expressed concern about how to calculate sleeper berth time under the proposed revisions, especially in relation to the 3 hour pause. Others asked for other splits.

Split-Duty Pause.

Commenters primarily requested clarification regarding which operations would be able to use the proposed 3-hour pause, and expressed concern about abuse of the provision.

C. Summary of the Written Comments to the NPRM; FMCSA Responses

The NPRM comment period closed on October 21, 2019. The Agency considered late filed comments to the extent practicable and, as of November 27, 2019, had received a total of 2,874 submissions to the docket.

1. Agency Approach To Reviewing Research Cited in the Written Comments

Methodology of Comment Evaluation.

Because of the level of Congressional and public interest in this HOS rulemaking, FMCSA shares with interested parties its methodology for analyzing almost 3,000 submissions to the rulemaking docket. Approximately 200 studies were cited in written comments to the NPRM. To ensure that FMCSA did not overlook any relevant research, the Agency created a list of those studies for systematic review.

FMCSA notes that while conducting HOS rulemakings over the past 25 years, the Agency has examined many studies on the effects of time on task on fatigue, and of fatigue on safety. Some of the studies are based on laboratory experiments with closely controlled inputs, while others are derived from technical data generated by drivers operating instrumented trucks. Still others involve extensive surveys of CMV drivers. The number of subjects or survey respondents varies enormously, from a few dozen to many thousands. None of these studies were considered as representative of every aspect of the enormously varied motor carrier industry.

The FMCSA acknowledges that no single study that it previously reviewed or referenced in responses to the 2019 NPRM addresses all of the proposed changes. The results of the various studies are not uniform, rarely converging in a straightforward conclusion about specific work-rest schedules. FMCSA therefore considered the wide range of studies, including those provided or cited by commenters, to draw conclusions about the overarching HOS principles based on its own experience and expertise and the extensive, but inconclusive, body of evidence currently available.

Procedural Matters.

A few commenters addressed procedural matters regarding the proposed rule. Three requests for an extension of the public comment period were received. FMCSA extended the public comment period from October 7 to October 21, 2019.

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84 FR 49212, September 19, 2019.

2. General Comments on the Rulemaking

Agreement with Proposed Revisions.

Approximately 530 submissions expressed general agreement with the proposed changes. Many of these included individuals and drivers who stated their general agreement with the proposal without providing substantive rationale. Numerous commenters stated that the proposed changes:

• Increase flexibility;

• Improve highway safety;

• Provide drivers with greater control when and where to take rest breaks;

• Increase efficiency and productivity; and,

• Reduce driver stress and fatigue.

Safety for the Long Haul, Inc. and OOIDA stated that the proposed revisions would increase driver flexibility and efficiency without adversely affecting driver alertness. However, Safety for the Long Haul also argued that the “ND [Naturalistic Driving] Mixed Safety-Critical Event” (SCE) method for assessing fatigue, as referenced in the Agency's NPRM, is flawed. OOIDA commented that the proposed rule would improve trucker safety, as drivers know best when they need to take a break or whether driving conditions are unsafe.

A few industry associations commented that current HOS rules have contributed to increases in crashes involving trucks. One association commented that current HOS rules may pressure drivers to rush or continue driving despite being fatigued. They believe the proposed changes would provide greater flexibility for drivers to take breaks from the driving task.

Several industry associations and companies from the agricultural, beverage, construction, concrete, forest products, packaging and recycling, and livestock sectors of the motor carrier industry stated that the proposed rule would benefit their members.

The National Motor Freight Traffic Association, Inc. commented that the proposed rule would help “less-than-truckload” drivers, who have relatively regular schedules but who are susceptible to poor traffic conditions; they can usually obtain adequate rest and complete their work safely. Another industry association generally supported the proposed rule for its different treatment of long-haul, regional, and short-haul trucking.

Several construction industry associations supported the proposed rule but requested that the construction industry be exempted from HOS regulations.

FMCSA Response:

FMCSA agrees that the relief provided through this rulemaking will benefit some of the industries or distinct operations (

e.g.,

propane delivery) currently seeking relief through exception or other means.

As for industry-specific exceptions or regulatory relief, it should be noted that FMCSA has already granted exemptions from specific HOS requirements to various industry segments and motor carriers, including some related to the regulations addressed in the NPRM. The exemptions were granted through a public notice-and-comment process authorized by 49 U.S.C. 31315, with implementing regulations provided in 49 CFR part 381.

Three exemption applications concerning an extension of the short-haul duty day from 12 to 14 hours have already been granted to the following: (1) Waste Management, Inc.; (2) the American Concrete Pumping

Association (ACPA); and (3) the National Asphalt Pavement Association (NAPA). In addition, NAPA requested and received an exception from the 30-minute rest break provision, allowing its members to use 30 minutes of “waiting time” or “attendance time” to satisfy the break requirement.

Others who have requested and received similar exemptions from the 30-minute rest break include the National Pork Producers Council (NPPC) for drivers transporting livestock, ACPA, the American Trucking Associations, Inc. (ATA) for placarded hazardous materials loads, the Department of Energy for special category (often nuclear) shipments, the National Tank Truck Carriers, the Oregon Trucking Associations, the Specialized Carriers and Rigging Association, and the U.S. Department of Defense's Military Surface Deployment and Distribution Command.

This final rule does not include industry-specific relief (

i.e.,

regulatory exceptions). However, FMCSA notes certain industries may find their concerns about HOS addressed by this rule. As noted above, the requirements concerning applications for exemptions or requests for waivers are described in 49 CFR part 381, and interested parties that continue to believe that additional flexibility is needed should review part 381 to determine whether an exemption application may be warranted. The Agency notes that such requests should consider the statutory requirement that the exemption must be likely to achieve a level of safety equivalent to or greater than the level of safety provided absent the exemption.

Disagreement with the Proposed Changes to the HOS Requirements.

Approximately 215 commenters expressed general disagreement with the proposed rule. Numerous commenters, mostly individuals, opposed the rule without further explanation. Many of these commenters, including individuals and drivers, stated that the proposed rule:

• Enables companies to abuse drivers;

• Fails to promote safety;

• Does not provide enough flexibility;

• Adds confusion when looking at the provisions overall;

• Decreases efficiency and productivity; and,

• Does not address the lack of parking and problems associated with “pay to park” schemes.

Many of the commenters who opposed the rule argued that the proposed rule would contribute to the prevalence of driver fatigue and threaten public safety through an increase in fatigue-related crashes. Among the commenters articulating variations on this theme were the National Transportation Safety Board (NTSB), the National Safety Council (NSC), the American Academy of Sleep Medicine (AASM), Advocates, Road Safe America, Senator Patty Murray, the International Brotherhood of Teamsters (IBT), and the Truck Safety Coalition (TSC). Representative Greg Steube argued that the current proposal does not do enough to fully address safety and logistics issues. The NSC, Advocates, IBT, and TSC cited data about the importance of healthy sleep patterns and the safety risks of fatigued driving. Road Safe America and Senator Murray argued that the proposed rule would increase the likelihood that motor carriers would coerce drivers into working while fatigued, creating unsafe road conditions for drivers and other motorists. The Institute for Policy Integrity argued that the proposed rule is too focused on flexibility for drivers and that FMCSA should consider the effects of the proposed rule on drivers' health.

Representative Peter DeFazio warned that the proposed rule significantly expands on-duty time for truck drivers, deprives drivers of true rest, and passes more of the inefficiencies and uncertainties of goods movement on to drivers who have little economic leverage. Congressman DeFazio also argued that the changes may seem modest, but instead represent a “substantial backslide” in a 24-year process to update on-duty rules and reduce fatigue among commercial drivers—which has been “painstakingly” debated by FMCSA, Congress, and the courts. However, many other commenters felt strongly that the additional flexibility would minimize the stress on a driver that results under the current rules.

The Small Business in Transportation Coalition expressed concern that the proposed rule would be difficult to enforce and that drivers needed greater flexibility. Another commenter argued that free market forces will correct the challenge of long detention times at shippers' and receivers' facilities, and that the proposed rule would be counterproductive in resolving this issue.

Senator Murray claimed the proposed rule contravened FMCSA's mandate by unreasonably extending drivers' work hours, eliminating drivers' right to sufficient rest, and threatening the safety of drivers and the public. Advocates asserted that FMCSA's reasoning for each of the proposals in the NPRM is baseless, misrepresentative, or based on incorrect reinterpretation of research and often in direct contradiction of earlier Agency findings and statements.

The Institute for Policy Integrity urged FMCSA to analyze each proposed provision's effect on driver health, including driver morbidity, chronic health conditions, obesity, and exposure to diesel exhaust. Another commenter recommended that FMCSA consider amending the proposed changes to include screening for sleep problems, such as Obstructive Sleep Apnea, and then prescribing practical solutions if the driver is diagnosed with a sleep problem.

ATA expressed conditional support for some provisions of the rule. IIHS, ATA, and a few industry associations argued that more research would be needed before the rule or individual provisions could be adequately evaluated. Trucking Solutions Group provided conditional approval if FMCSA would wait for the full effects of the ELD mandate on the industry to occur before undertaking a new rulemaking.

FMCSA Response:

FMCSA acknowledges commenters concerns. However, the Agency concludes that the changes adopted today will not result in the adverse safety consequences they described. None of the revisions in this rule allow truck drivers additional driving time beyond the 11-hour limit provided in the current regulations (or the 13-hour limit provided with the current adverse driving conditions exceptions). Except for the adverse driving conditions provision, none of the revisions allow drivers to operate a CMV after accumulating 14 hours of on-duty time during a work shift. Consistent with the Agency's rationale for adopting the 14-hour rule, none of the revisions allow the use of multiple or intermittent off-duty breaks to extend the work-shift. Also, the weekly limitations under the 60/70-hour rules concerning the maximum number of on-duty hours that may be accumulated before driving is prohibited remain unchanged. Furthermore, none of the revisions relieve motor carriers and drivers of the explicit prohibitions against: (1) Operating commercial motor vehicles while ill or fatigued, or (2) coercing drivers to violate Federal safety rules. Therefore, the basic parameters of the HOS rule that are essential to safety remain unchanged.

Regarding the extension of the driving window to 16 hours during “adverse driving conditions,” drivers will no longer need to stay on the road during such conditions to avoid the impending closure of the previous 14-hour driving window. Therefore, the added flexibility

will not decrease safety during adverse driving conditions.

Regarding the proposal to allow drivers to pause the 14-hour driving window by taking up to 3 hours off-duty, the Agency intended to give drivers the ability to adjust their operations such that they could defer work, especially driving time, until the conditions were conducive to greater efficiency. The NPRM considered that the pause could have been as short as 30 minutes or as long as 3 hours, provided the driver was relieved of all responsibility for performing work, with the assumption being that pauses up to 3 hours would allow drivers to obtain rest during the extended window. Drivers would have the opportunity to take a meaningful rest break during the work shift but still be required to have 10 consecutive hours off duty at the end of the work shift.

As explained elsewhere in the preamble, FMCSA has decided that further information is needed concerning the potential for unintended consequences associated with the pause and therefore has not included that provision in this final rule.

As to driver health, the Agency acknowledges that the effect of specific regulatory changes on driver health is difficult to evaluate. First, most health conditions have multiple contributing factors and are discernible only over extended periods. Second, a cause-and-effect relationship between a rule and a given health outcome is difficult to establish. Driver health issues were addressed extensively in the 2005 final rule [70 FR 49978, 49982-49992, August 25, 2005]. The preamble noted that “FMCSA has reviewed and evaluated the available and pertinent information concerning driver health, with emphasis on chronic conditions potentially associated with changes from the pre-2003 and 2003 rules, to this final rule. The research on CMV driver health falls into several broad categories: (1) Sleep loss/restriction, (2) exposure to exhaust, (3) exposure to noise, (4) exposure to vibration, (5) cardiovascular disease, (6) long work hours, and (7) shift work and gastrointestinal disorders” (70 FR 49978, 49982).

The Agency concluded that the 2005 rule would not have any effect on those potential health issues. That discussion remains applicable today with only a few changes. For example, FMCSA noted in 2005 that attempts to create a dose-response curve for the effects of exposure to diesel exhaust had not produced clear-cut results (70 FR 49983). Such an attempt would be even less useful today because exposure to diesel exhaust has declined significantly in the last 15 years as a result of the tightened EPA standards discussed in the 2005 rule. The incremental changes adopted in this final rule, though useful to motor carriers and drivers, do not change the conclusions explained in the 2005 final rule. As pointed out in the 2005 HOS final rule (70 FR 49978, 4983, August 25, 2005), attempts to create a dose-response curve for the effects of exposure to diesel exhaust, for example, have not produced clear-cut results. Such an attempt would be even more difficult for the incremental HOS changes promulgated today.

However, based on the current scientific information and its own experience with Hours of Service regulation, FMCSA concludes that the changes made by this final rule are safety- and health-neutral. For example, the expansion of the short-haul workday from 12 to 14 hours simply gives short-haul carriers the same driving window that other carriers have used for many years. The 14-hour HOS limit now applicable to both short- and long-haul carriers is consistent with the statutory obligation to protect driver safety and health (49 U.S.C. 31136(a)(2), (4)), as shown by the extensive discussion in the 2005 final rule (70 FR 49978, 49982

et seq.

). Moreover, FMCSA requires that interstate drivers subject to the physical qualifications standards under 49 CFR part 391 obtain proof of their physical qualifications from a licensed healthcare professional listed on the Agency's National Registry of Certified Medical Examiners. These healthcare professionals must be licensed by the State, complete a training program concerning FMCSA's physical qualification standards, and pass a test concerning the Federal requirements. These Medical Examiners are likely to provide some level of education at the time of the exam if drivers exhibit specific health issues.

As to obstructive sleep apnea, the Federal Motor Carrier Safety Regulations (FMCSRs) do not require medical examiners to screen CMV drivers for sleep disorders, and the Agency does not provide criteria for determining whether an individual should be referred for a sleep study evaluation. FMCSA relies on Certified Medical Examiners who have proper licensure, training, and medical knowledge to apply independent medical judgment based on the individual's complete medical history, including risk factors, and clinical findings from the physical examination when making medical determinations concerning screening, testing, and treatment, for obstructive sleep apnea. FMCSA notes that obstructive sleep apnea is a condition for which there are effective treatments available, and drivers who follow the prescribed treatment regime after being diagnosed may be medically certified.

Problems caused by detention time and parking shortages have been apparent for many years. However, these issues are beyond the scope of this rulemaking.

The purpose of this rule is to enhance the operational flexibility of drivers and carriers, without compromising the Agency's statutory safety mission. Many commenters stated that the current HOS requirements are too restrictive and that their removal would not adversely affect safety; but those assertions are supported only with personal anecdotes. While stakeholders' personal experiences inform the Agency's decision-making process, further evidence is generally required to support changes to the FMCSRs.

Neutral Comments and Comments on HOS-Related Issues Beyond the Scope of the NPRM.

Approximately 1,460 comments, mostly from individuals and drivers, provided mixed, neutral feedback on the proposal. In addition, some drivers and individuals addressed certain provisions of the NPRM while remaining silent on other provisions. Some individual commenters and drivers provided conditional support while others neither provided an opinion nor suggested alternatives to the NPRM.

Approximately 630 submissions concerned aspects of the HOS rules that were not covered in the NPRM. Numerous individuals and drivers made the following types of suggestions:

• Eliminate the 14-hour window;

• Eliminate or revise the 34-hour restart provision;

• Eliminate the 70-hour rule prohibiting driving after the driver has accumulated 70 hours of on-duty time in 8 consecutive days;

• Eliminate the use of ELDs;

• Allow drivers to develop their own drive/rest schedules;

• Exempt small businesses from the HOS rules or create separate rules applicable to small fleets;

• Extend driving time from 11 to 12 or 13 hours;

• Address the amount of time drivers are held up at shippers or receivers;

• Address the lack of parking and “pay to park” schemes; and,

• Drivers should be paid hourly instead of by the mile.

Multiple individual commenters and drivers briefly summarized alternative or “simplified” HOS requirements that they would prefer (

e.g.,

maximum 9-hour drive time in a 12-hour workday;

12 on-duty/12 off-duty; 13 hours of drive time in a 24-hour workday; 14- or 16-hour total workday; 77 hours in 8 days, etc.).

FMCSA Response:

FMCSA acknowledges the concerns of commenters that opted not to take a position on certain aspects of the proposal. Each aspect of the NPRM addresses a piece of a complex puzzle concerning the flexibility needs for different segments of the transportation industry. For certain segments of the industry, a single element of the NPRM would provide all the flexibility necessary while other segments may benefit from two or more elements. This final rule is intended to provide reasonable adjustments to the HOS requirements to allow for increased flexibility without decreasing safety.

FMCSA also acknowledges commenters' interest in changing major provisions of the HOS requirements. However, these issues are beyond the scope of this rulemaking. In some of these cases such as an extension of the driving time limits or the elimination of the 70-hour rule, additional research would be needed to support changing the basic parameters of the HOS rules that have been previously determined to be important in minimizing the risk of fatigue. And several of the issues raised by commenters are beyond FMCSA's statutory authority (

e.g.,

driver compensation, elimination of ELDs).

In response to commenters' concerns about third parties such as shippers and receivers forcing drivers to violate HOS rules or creating an environment where drivers are unable to take advantage of the work time allowed, the Agency issued a final rule in 2015 prohibiting motor carriers, shippers, receivers, and transportation intermediaries from coercing drivers to operate CMVs in violation of certain FMCSA regulations, including the HOS regulations in 49 CFR part 395 (See 49 CFR 390.6). In addition, the Occupational Safety and Health Administration in the Department of Labor has authority under 49 U.S.C. 31105 to take remedial action against employers who have discharged or discriminated against employees who refuse to violate the FMCSRs.

Comments on Issues and Industry Concerns Separate from the HOS Rules.

Approximately 30 submissions addressed topics that involved safety but were separate from the HOS requirements. The topics included:

• Education for the public on safe driving procedures around trucks;

• Inspection of trucks crossing the U.S. border;

• Public respect for truck drivers;

• Improvements to rest areas;

• CMV driving speeds;

• The impact of certain States' laws on interstate commerce; and,

• The ability of drivers to participate in public listening sessions.

FMCSA Response:

While the topics raised by these commenters are important, they do not relate to the specific revisions proposed at the NPRM stage of the rulemaking or adopted through this final rule.

The Agency nevertheless acknowledges commenters' concerns about these issues and has acted in several of these areas. For example, the Agency launched “Our Roads, Our Safety,” a national safety campaign shaped to raise public awareness about sharing the road safely with large trucks and buses.

On the topic of truck parking, FMCSA is an active participant in the National Coalition on Truck Parking (the Coalition). The U.S. Department of Transportation (USDOT) and several stakeholder organizations established the Coalition in August 2015 as a response to a documented need for truck parking solutions. Stakeholders engaged in the Coalition represent the trucking industry, commercial vehicle safety officials, State departments of transportation (DOTs), and commercial truck stop owners and operators.

Finally, about the inspection of trucks crossing the U.S.-Mexico border, in each of the past 4 years FMCSA and its State partners conducted more than 250,000 inspections of commercial motor vehicles operated by Mexico-owned or Mexico-domiciled motor carriers.

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Available at

https://ai.fmcsa.dot.gov/SafetyProgram/MexicanCarriers.aspx,

last accessed February 5, 2020.

3. Short-Haul Operations

NPRM.

The NPRM proposed extending the maximum allowable workday for property-and passenger-carrying CMV drivers under the § 395.1(e)(1) short-haul exception from 12 to 14 hours to correspond with the 14-hour limit for property-carrying drivers in § 395.3(a)(2). The Agency proposed extending the existing distance restriction under this provision from 100 air-miles to 150 air-miles to be consistent with the radius requirement for the short-haul exception applicable to drivers of CMVs not requiring a CDL (§ 395.1(e)(2)). Under the proposal, truck drivers would continue to be limited to 11 hours of driving time, and passenger carrier drivers to 10 hours of driving time. FMCSA proposed requiring all CMV drivers using the § 395.1(e)(1) exception to complete their workday within 14 hours of the beginning of the work shift.

The NPRM also sought additional information and data on the impacts of expanding the short-haul exception provision, in part to assess its potential costs and benefits. Specifically:

• How would this change impact the motor carriers' ability to enforce the HOS rules? What enforcement difficulties may arise from expanding both the time and distance requirements?

• Would drivers drive farther or longer in the driving window under the short-haul exception? Would this be different than these loads being hauled by drivers complying with the ELD requirements?

• Would the elimination of the 30-minute break requirement for drivers that are potentially driving later in their duty period impact safety?

• What cost savings are expected from not having to comply with the ELD requirements?

In addition, some commenters to the ANPRM requested that drivers using the short-haul exception be allowed to end their work shift at a different location than the one from which they were dispatched. FMCSA therefore included a request for public comment about this suggestion, including which segments of the motor carrier industry would be impacted by it and whether it would have an adverse effect on safety, or lead to operational changes such as increased driving time per trip or driving in the 12th and 13th hour after coming on-duty.

Commenters Supporting an Increase to the 12-Hour Limit for Short-Haul Operations.

Approximately 240 submissions supported the proposal to extend the maximum allowable workday under the short-haul exception from 12 to 14 hours. Many of the commenters, including drivers and individuals, stated that the additional flexibility would be helpful or would positively impact them or their company. Some of the specific benefits commenters mentioned included:

• Extending the short-haul provision to 14 hours would reduce the burden of switching to logbooks and installing ELDs;

• The provision would allow dispatchers to schedule loads and routes more efficiently;

• Short-haul drivers should be allowed to work as many hours as over the road drivers;

• The added flexibility will increase safety because short-haul drivers will be under less pressure to “beat the clock;”

• The proposed changes to the exception would reduce compliance burdens;

• The extra time will help improve transportation productivity efficiency, such as truck utilization and driver optimization, thereby reducing costs; and,

• Extending the short-haul provision from 12 to 14 hours would not negatively impact safety.

Many commenters, including OOIDA, the American Bus Association (ABA), the U.S. Chamber of Commerce, trucking industry associations and motor carriers expressed support for extending the 12-hour short-haul exception to 14 hours. These commenters believed the change would afford drivers greater flexibility by allowing them more time to complete trips during peak periods, more non-consecutive driving hours, and a larger window to return home if drivers encounter unexpected delays during their shift. Several associations representing specific segments of the trucking industry and motor carriers reiterated that the increased flexibility would positively impact them, their members, or their segment, including agricultural operations supporting aerial crop dusting, motorcoach businesses, towing and recovery companies, retailers, beverage producers and distributors, construction and manufacturing businesses, and propane gas delivery businesses. A few commenters remarked that the proposed change would provide small businesses partial relief from the chronic shortage of CDL drivers nationwide because the additional 2 hours of on-duty time per shift would increase the productivity of drivers already on the payroll.

Multiple commenters, including OOIDA, the Commercial Vehicle Safety Alliance (CVSA), and some motor carriers and drivers, stated that extending the limit for the short-haul exception from 12 to 14 hours would align the exception with existing requirements for long-haul, regional, and over the road drivers and thereby simplify enforcement and improve compliance. A few commenters, including the U.S. Chamber of Commerce and industry associations, remarked that for companies that manage a variety of trucking operations, the proposed change would facilitate compliance because more operations would follow the same set of rules making fleet management easier, and reducing the possibility of inadvertently violating the rules. Some commenters, including several motor carriers, said that the proposal would remove the need for multiple exemptions from the HOS rules and make the standards more consistent for all drivers.

Many commenters, including individuals, drivers, motor carriers, and industry associations, stated that this proposed change would allow many more drivers to qualify for the short-haul exception. A few commenters, including Transco, Inc. and the National Limousine Association, stated that the provision would allow more frequent use of the exception and include the benefit of not having to complete a driver's daily graph grid log or use an ELD. Others stated that the proposal would enable more drivers to go home at night rather than sleeping in hotels, improving not only rest, safety, and productivity, but also saving the company on costs.

FMCSA Response:

The Agency agrees with those commenters who believe the proposed changes to the current short-haul provisions would provide increased flexibility for both motor carriers and drivers who utilize the exception. FMCSA continues to believe the extension of both the 12-hour limit to 14 hours, and the 100 air-mile radius to 150 air miles will provide the increased flexibility for drivers without compromising overall safety.

The Agency emphasizes, however, that the changes to the short-haul exception finalized in this final rule allow neither additional drive time during the workday, nor driving after the 14th hour from the beginning of the workday. Because the extension of the air-mile radius and the workday does not extend the maximum allowable driving time or the 14-hour window, FMCSA does not anticipate adverse impacts on safety.

FMCSA also agrees with commenters who stated that the proposed changes to the short-haul exception this final rule would allow more drivers to be consistently eligible for the short-haul exception. Thus, they will be excluded from the requirement to take a 30-minute break or prepare daily RODS, potentially with an ELD if the carrier exceeded the short-haul limits more than 8 days within a 30-day period. Carriers now have the flexibility to meet existing and future market demands for services within a larger area that could be covered within a 14-hour duty day. Services may now be provided more efficiently (

i.e.,

not incurring the costs of preparing RODS and retaining supporting documents for the days drivers did not satisfy the short-haul limits) without compromising safety.

FMCSA notes that short-haul carriers must maintain accurate records concerning drivers' schedules. These time records must document when drivers report to work and are released from work. The Agency may review carriers' records to determine whether drivers have traveled to locations beyond the distance limits.

Regarding the issue of more uniform enforcement of the short-haul provisions based on the changes in this final rule, FMCSA anticipates that the number of associations, organizations and companies seeking exceptions via 49 CFR part 381 provisions will considerably decrease and enforcement agencies will not have to monitor the list of active exemptions to avoid errors in citing carriers operating under an exemption. Because most of the exemptions are granted to groups or associations on behalf of their motor carrier members, enforcement officials need to understand the scope of the exemption so that when commercial vehicle inspections are performed, the enforcement official can make the determination whether the exemption covers the specific driver or carrier being inspected, and how the remaining HOS requirements are to be applied to that driver.

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Several of these applications for exemption have been granted by the Agency in the past, including some that extended the 12-hour short-haul limit to 14 hours.

10

In the calendar year 2018, FMCSA received 6 exemption requests regarding the short-haul provision. The majority concerned an extension from 12 hours to 14 hours.

Commenters Seeking Flexibility Beyond the Proposed Revisions to the Short-Haul Time Limits.

An individual said the provision is “90% good” but would not help the sub-class of short-haul drivers that primarily do “drop and hook.”

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Another commenter said short-haul drivers should be allowed a 16-hour day. Another individual familiar with oilfield operations said that the short-haul exception should allow up to 15 hours of driving time, since oilfield workers must often be on-site for 12 hours. TruckerNation reasoned that, while expanding the short-haul exception to 14-hours would create a uniform duty day for all CMV drivers and decrease unnecessary complexity, reducing the complexity for drivers may increase the probability of inconsistent enforcement actions.

11

This is a term that refers to when a driver drops the trailer and simply picks up a new trailer; in other words, a delivery where no loading or unloading is required.

FMCSA Response:

The Agency believes this final rule provides an appropriate amount of flexibility while ensuring that safety is not compromised. As noted above, none of proposals included in the NPRM and adopted today allow truck drivers additional

driving time beyond the 11-hour limit provided in the current regulations (or the 13-hour limit provided with the current adverse driving conditions exceptions). Except for the adverse driving conditions provision, none of the revisions allow drivers to operate a CMV after accumulating 14 hours of on-duty time during a work shift. Consistent with the Agency's rationale for adopting the 14-hour rule, none of the revisions allow the use of multiple or intermittent off-duty breaks to extend the work-day which would in turn increase the risk of driver fatigue.

Based upon the many research studies the Agency has reviewed over the past 25 years of conducting HOS-related rulemakings, the Agency believes it would be inappropriate to consider amending the rules to allow more than 11 hours of driving time, without taking the required 10 consecutive hours off-duty (property carriers). Aside from adverse driving conditions, it would also be inappropriate to allow a 16-hour driving window, during which drivers could operate a CMV after accumulating 14 hours of on-duty time during a work shift.

Finally, the Agency does not anticipate that enforcement difficulties will arise from the expansion of on-duty hours permitted under the exception. The employer must still maintain and retain accurate time records for a period of 6 months showing the time the duty period began and ended, and the total hours on-duty each day in place of RODS (§ 395.1(e)(1)(v)).

Commenters Opposed to Increasing the 12-Hour Limit for Short-haul Operations.

Some individuals and drivers raised arguments against the proposal:

• The provision would allow companies to force drivers to extend their workdays.

• Short-haul drivers should be limited to a 12-hour workday; any more would increase driver fatigue and be a detriment to safety.

• Short-haul drivers can already run a 14-hour day, so the proposal would just make HOS regulations more difficult to enforce.

Advocates argued that the proposed changes to the short-haul exception would extend drivers' duty hours, extend driving hours later into the duty period, increase the number of carriers operating under the exception, and thereby increase the number of drivers not provided adequate rest breaks, and impair enforcement.

A number of commenters, including some individual commenters and drivers, asked questions about the increased driving window of the short-haul exception:

• How will FMCSA monitor and keep carriers from allowing abuse and driving over the 11-hour driving limit?

• How will FMCSA protect against “stacking” (allowing a 19-hour day by combining the 2-hour adverse driving condition exception and a 3-hour “pause” to the 14-hour window)?

• Why are trucks without sleeper berths not allowed to run 12 hours or stop the clock during pickup or delivery?

• Why did FMCSA not consider a straight 13/16-hour day for all CMV operators?

A few commenters, including the Trucking Alliance, industry associations, and motor carriers, indicated they would support the increase from 12 to 14 hours only if an ELD were required to track a driver's HOS. The Trucking Alliance argued that having ELDs on board all trucks would ensure compliance, improve highway safety, and reduce the risk of large truck crashes. ATA stated that, while they supported the proposed expansion of the short-haul exception, they were concerned that it would increase the number of drivers who would no longer be required to use an ELD, and even that ELDs would be removed from some vehicles. Schneider National Carriers, Inc. stated that while “neutral” with respect to the proposed 14-hour day, it favored an ELD requirement to deter abuse.

Citing results of a membership survey, ATA concluded that the number of motor carriers that would become exempt under the proposed short-haul exceptions would be “small but not insignificant.”

An individual said FMCSA should be more specific regarding which drivers would qualify for the proposed short-haul exception changes.

The California Highway Patrol warned that an expansion of the short-haul exception to 14 hours would make impossible discovery of 11-hour violation(s) by enforcement personnel, foster noncompliance, and would not be prudent in large States.

FMCSA Response:

The Agency acknowledges commenters' concerns about extending the driving window. However, the Agency emphasizes that the HOS requirements for drivers using RODS allow up to 11 hours of driving time within a 14-hour window, following 10 consecutive hours off-duty. Short-haul drivers who exceed the current 12-hour limit for returning to the normal work-reporting location can already operate using the 14-hour window for up to 8 days in any 30-consecutive-day period without an ELD, provided they keep paper RODS for those days. If they are willing to use an ELD, these drivers could simply operate under the same HOS limits as regional and long-haul drivers. Whether to do so is a business decision on the part of the motor carrier. The extension to 14 hours will relieve some short-haul drivers of the pressure to drive at a higher speed to finish their 11 hours of driving time and return to their duty reporting location within 12 hours.

FMCSA also acknowledges the comments about monitoring compliance and enforcement challenges under the short-haul provision. However, the techniques currently used to enforce the HOS requirements for short-haul drivers will be the same whether the maximum work shift is 12 or 14 hours. FMCSA does not agree that the changes to the short-haul provision would make discovery of violations impossible or foster noncompliance with the underlying HOS requirements.

As noted above, employers must maintain and retain accurate time records for a period of 6 months showing the time the duty period began and ended, and the total hours on-duty each day in place of RODS (§ 395.1(e)(1)(v)).

Expanding the duty period to 14 hours, without increasing the existing 11 hours of driving time, will allow short-haul drivers to spend time with customers, respond to changes in market demand, such as peak holiday delivery times, and reduce the administrative burden of determining how often a driver has gone beyond 12 hours or 100 air-miles in any 30-consecutive-day period. Because the changes to the short-haul exception will not extend the workday beyond the current 14-hour driving window, FMCSA has no reason to believe that the revised rule will adversely impact safety.

Neither of the changes to the short-haul exception increase the opportunities to falsify time records. If anything, the changes remove pressure from short-haul drivers to “beat the clock.” Furthermore, the Agency agrees with ATA and has retained the requirement for drivers to return to the normal work reporting location at the end their work shift, rather than having the option of ending the shift at a different location. This will help to ensure compliance with the short-haul exception to the RODS requirement.

The FMCSA acknowledges commenters' overall concerns that an expansion of the short-haul provision (both the extension of the time and distance limits) would result in fewer

motor carriers and drivers being required to use ELDs. However, this fact, in and of itself, does not mean that the carriers in question would experience increased levels of non-compliance with the applicable HOS rules or increases in crash involvement. Enforcement of the short-haul provision during vehicle inspections has always presented a challenge because officials do not have access to supporting documents, specifically records indicating when the driver began the work day. However, enforcement at a terminal or the principal place of business generally provides a better opportunity to investigate compliance with the hours-of-service requirements. At such time, enforcement personnel will continue to focus on (1) the time between the driver reporting to the normal work-reporting location and the time the driver is released from work, and (2) the maximum distance the driver traveled from the normal work-reporting location. The enforcement official could request certain records that would identify where the driver traveled and the time spent at those locations. Because of the inherent nature of short-haul operations (

e.g.,

several stops for pick-up and/or delivery during the shift, or a few trips with extended periods at the delivery/service site, etc.) and the distance limitation, the Agency does not believe short-haul CDL drivers will have more opportunities or incentives to exceed 11 hours of driving time within the 14-hour window than non-CDL short-haul drivers who already have these time and distance limits. Short-haul drivers do not have the opportunity to pause the 14-hour clock while drivers are loading and unloading at the various points at which services are being provided. Safety investigators will continue to sample and examine time cards and other HOS records during compliance investigations.

The Agency reviewed its December 16, 2015, final rule establishing the ELD mandate and the accompanying Regulatory Impact Analysis. Based on the 2015 analysis, the Agency estimated that the annualized safety (crash reduction) benefit for mandating ELDs for all CMV operations (including short haul) subject to the HOS requirements would be $687 million while the annualized safety benefit for mandating ELDs for all CMV operations where the driver is required to prepare RODS would be $572 million. The values were presented in 2013 dollars at a 7% discount rate. The Agency explained:

“Safety benefits of requiring ELDs are higher when all regulated CMV operations are included in the ELD mandate . . ., but the marginal costs (ELD costs plus compliance costs) of including these operations are more than 3

1/2

times higher than the marginal benefits. . . . [Short-haul] drivers who do not use RODS, have better HOS compliance, and much lower crash risk from HOS noncompliance. For the [short-haul] non-RODS subgroup, FMCSA's analysis indicates that ELDs are not a cost-effective solution to improving the HOS compliance of [short-haul] non-RODS drivers. This result is consistent with that of past ELD analyses.”

In consideration of the above discussion, FMCSA believes the decrease in the number of carriers using ELDs will be limited because the change impacts only the CDL holders who currently travel between 100 and 150 air-miles from the normal work-reporting location, and return to that location within 12 to 14 hours each day. And, the Agency continues to believe ELDs are not a cost-effective solution to ensuring HOS compliance for these drivers because, as discussed below, short-haul operations are essentially self-limiting due to the nature of the operations and requirement to return to the reporting location.

Commenters Supporting the Expansion of the 100 Air-Mile radius to 150 Air-Miles, but not the 12-hour limit.

Multiple commenters, mostly individual commenters and drivers, expressed brief, general support for extending the radius for the short-haul exception to 150 air-miles. Many individuals and drivers said that the additional flexibility was helpful or would positively impact them, their industry, or their company. Some commenters provided the following arguments for expanding the short-haul exception to 150 air-miles:

• The proposed change would allow carriers to classify drivers as short-haul more accurately;

• Extending the air-mile radius would reduce the burden of switching to logbooks and installing e-logs;

• Increasing the 100 air-mile to a 150 air-mile radius would increase new business opportunities;

• It is difficult to run a delivery business legally with the 100 air-mile restriction;

• The exception would reduce compliance burdens; and,

• Extending the air-mile radius would not increase safety risks.

Multiple industry associations and motor carriers stated that extending the 100 air-mile radius for the short-haul exception to 150 air-miles would increase flexibility and positively impact carriers, their members, or their segment, including crop dusting, commercial trucking, and motor coach businesses, retailers, beverage manufacturers and distributors, construction, manufacturing, and propane gas delivery. The U.S. Chamber of Commerce commented that extending the radius to 150 air-miles would provide flexibility for carriers to use the short-haul provision for runs that are farther from their work reporting location and may be currently managed as a long-haul run.

Many commenters said that the proposed extension would remove the need for several HOS exceptions that have already been issued and make standards more consistent for all drivers. Several commenters, including CVSA, and some motor carriers and drivers, stated that expanding the radius from 100 to 150 air-miles would align the short-haul exception with existing HOS requirements and thereby simplify enforcement and improve compliance. The U.S. Chamber of Commerce remarked that, for companies that manage a variety of trucking operations, the proposed change would facilitate compliance because more operations would follow the same set of rules, in turn making fleet management simpler and reducing the likelihood of inadvertent violations of the rules.

As stated above, many commenters said that the proposed changes would allow many more drivers to qualify for or utilize the short-haul exception.

Many commenters argued that a 150 air-mile radius did not go far enough, suggesting that it be increased to 200, 250, or 300 air-miles. A commenter asked what difference it makes how far drivers travel provided they return to their home terminal within the allotted time, noting that a short-haul driver can legally drive almost as many miles inside a 150 air-mile radius as a long-haul driver. Other individual commenters recommended removing the mileage radius as long as drivers return home at the end of a day.

FMCSA Response:

The Agency agrees with commenters who stated that the proposed changes to the short-haul exception would provide increased flexibility to motor carriers and drivers without decreasing overall safety, irrespective of whether the 12-hour limit was increased. FMCSA also agrees with CVSA and other commenters that expanding the short-haul radius from 100 to 150 air-miles would align it with existing HOS requirements in § 395.1(e)(2) and § 395.1(k) and thereby simplify enforcement and improve compliance.

FMCSA believes that a 150 air-mile radius is the appropriate size for the short-haul exception applicable to CDL holders operating in interstate commerce. However, FMCSA disagrees

with commenters requesting that the mileage should be longer or even removed altogether, and with commenters seeking removal of the requirement for drivers to return to their normal work reporting location.

Short-haul drivers with occasional assignments that necessitate traveling long distances (

i.e.,

more than 300 air miles round trip) have always been allowed to take on such assignments provided they prepare RODS for those days. And under existing regulations and the rules adopted today they may continue to conduct these operations up to 8 days within a 30 consecutive day period without incurring the costs of installing and using ELDs. The Agency believes the flexibility provided in this final rule should be sufficient and that the increased distance suggested by some commenters is far beyond what should be considered short-haul operations.

Commenters Opposed to Extending the Distance to 150 Air-miles.

A number of comments were opposed to the proposal to extend the allowable short-haul air-mile radius to 150 air miles, arguing that:

• Extending the air-mile radius to 150 air-miles would reduce safety;

• Short-haul is an often-abused rule and increasing the air-mile radius to 150 air-miles is a mistake; and,

• The extension to 150 air miles will drastically reduce the number of carriers and drivers required to use ELDs, which dilutes the intent of part 395, subpart B.

Advocates argued that the proposed changes would extend drivers' duty days, extend driving hours later into the duty period, increase the number of carriers operating under the exception—thereby increasing the number of drivers not provided adequate rest breaks, and impair enforcement.

Advocates also argued that FMCSA failed to provide evidence or analysis to support its conclusion that VMT and crash risk would not increase because of the extension of the air-mile radius to 150 air miles. A few commenters, including Advocates, IIHS, and Senator Murray, cited IIHS's 2017 crash risk study indicating that the short-haul exception was associated with a statistically significant 383 percent increase in crash risk. Senator Murray and an industry association warned that a 50 air-mile radius increase would not increase the driving area in a linear manner, but instead expand the total area that drivers may operate by more than double to over 31,000 square miles.

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Citing many studies and statistics, IBT stated that short-haul drivers would experience increased fatigue and more fatigue-related occupational injuries and crashes.

12

“Crash Risk Factors for Interstate Large Trucks in North Carolina.” Insurance Institute for Highway Safety, Teoh, Eric, 2017.

https://www.ncbi.nlm.nih.gov/pubmed/28882260,

last accessed February 6, 2020.

Transportation Trades Department, AFL-CIO opposed the proposal to increase the air-mile radius because it would not provide enough time for adequate sleep and would encourage more driving time, increase driver fatigue, and decrease safety. Congressman DeFazio warned that the proposed rule significantly increases driving and on-duty time.

Several commenters took issue with the Agency's use of crash data on ready-mixed concrete trucks to argue that a 14-hour short-haul work shift would not decrease safety. Commenters also relied heavily on an IIHS study which concluded that carriers using the previous short-haul exception were significantly more likely to be involved in crashes than carriers not using the exception. These comments are discussed more fully in the RIA.

The IBT emphasized that a 14-hour short-haul work shift would increase the number of hours that drivers spend behind the wheel, the number of times they get in and out of the cab and trailer, and the amount of freight they manually handle. “Therefore, it is reasonable to expect that the incidence and prevalence of occupational injuries and illnesses for these drives will also increase. In addition, motor carriers will likely experience higher worker compensation costs and costs associated with increased crash liability.”

FMCSA Response:

The Agency concludes that extending the air-mile radius will not reduce safety. The motor carriers and drivers that would take advantage of this increased flexibility continue to be limited to 11 hours of driving time during the work shift and, like other drivers subject to the HOS requirements, continue to be prohibited from driving after 14 hours from the beginning of the work shift. These two factors are most critical for ensuring safe operations among short-haul operators.

With respect to not providing enough time for adequate sleep, the Agency reiterates that drivers must still comply with the requirement for 10 consecutive hours off duty at the end of the work shift. There is no research or data provided to suggest than an increase in the air-mile radius would result in increased crash risk, specifically when drivers are still restricted in the amount of time they can spend on-duty and driving.

Furthermore, drivers must still return to their normal work reporting location at the end of each work shift, which negates the notion that drivers would be able to cover a significant portion of the operational area (approximately 70,650 square miles) during a given work shift. The study cited by Advocates, IIHS, and Senator Murray (Teoh, 2017) was based on a small sample size which was not nationally representative and the analysts did not estimate a matched-pair odds ratio restricted to drivers operating under a short-haul exception. No data was provided to suggest that driving distance was directly related to injuries received by short-haul drivers; rather, several citations provided state that most injuries suffered by short-haul drivers are experienced during non-driving tasks, such as loading and unloading.

The continued absence of an ELD requirement for short-haul operations after expansion of the operating radius will not compromise safety. These short-haul operations are essentially self-limiting because of the nature of the operations and requirement to return to the reporting location. The frequent delivery stops generally made by short-haul drivers mean they rarely approach the 11-hour driving limit. Expanding the workday from 12 to 14 hours may result in more deliveries than were possible within a 100 air-mile radius, but total driving time will usually continue to fall short of the 11-hour limit. Conversely, carriers that choose to serve new customers near the outer limit of the expanded 150 air-mile radius will draw down more of the 11-hour driving limit and therefore be unable to make as many deliveries as they could have made within the previous 100 air-mile radius. Carriers may opt for either of these alternatives, or settle on an operational compromise that allows them to serve somewhat more customers, somewhat farther away. In any case, the nature of short-haul operations, with frequent delivery stops, means that an increase in violations of the 11-hour driving limit is highly unlikely.

Since the publication of the December 27, 2011 final rule concerning hours of service (76 FR 81134), non-CDL drivers have been allowed to use, and presumably have used, the 14-hour driving window in short-haul operations, within 150 air miles of the normal work reporting location. They also operate within a 16-hour window up to 2 days per week, within 150 air miles of the normal work reporting location. In other words, any carrier that found it operationally and financially advantageous to utilize a 14-hour

driving window has probably been doing so, at least with its non-CDL holders. Some of these carriers may choose to utilize the revised short-haul exception for CDL holders who exceed the current short-haul time and distance restrictions more than 8 times in a 30-day period to spare themselves monthly ELD charges. However, it is possible that many will retain ELDs which enable them to operate beyond the 150 air-mile radius when longer-haul opportunities arise. These carriers should experience no changes in the rate of workplace injuries because the rule will not require operational changes.

As indicated above, the expanded 150 air-mile radius may induce some carriers to make longer runs with fewer deliveries than before, which may minimize, or even eliminate, an increase in the number of stops, where IBT claims workplace injuries typically occur. In any case, IBT has not reported, nor is FMCSA aware of, any study that purports to establish a dose-response curve showing workplace injuries as a function of each hour worked.

FMCSA reviewed the comments received and the previous short-haul exception requests to determine how the rule would affect the number of drivers operating under the short-haul exception. As discussed in the RIA for this final rule, FMCSA is not estimating a significant change in the number of drivers or motor carriers operating under the short-haul exception given that the revision would only benefit CDL holders who travel between 100 and 150 air miles of the normal work reporting location, and return to that location between 12 and 14 hours from the beginning of the work shift.

While some drivers' routine schedules that were considered non-short haul may now be eligible for the short-haul exception, it is unclear if motor carriers employing those drivers will choose to remove ELDs from their vehicles. Nevertheless, the Agency continues to believe ELDs are not a cost-effective solution to ensuring HOS compliance for these drivers, as stated earlier.

Ensuring Compliance with the Short-Haul Exception.

The NPRM asked how the proposed changes to the short-haul exception would impact a motor carrier's ability to ensure its drivers comply with the HOS rules, and if enforcement difficulties would arise from expanding both the time and distance requirements.

A few commenters, including ABA and motor carriers, remarked that the proposed changes to the short-haul exception would not negatively impact a motor carrier's ability to comply with the HOS rules, and instead would simplify enforcement since the revised short-haul exception would more closely align with other sections of the other HOS provisions, thus increasing compliance and enforcement.

Some commenters, including Road Safe America, the Trucking Alliance, motor carriers, and drivers warned, however, that the proposed change would increase the likelihood that motor carriers would not comply with HOS rules because neither RODS nor ELDs would any longer be required. TruckerNation suggested that FMCSA consider a standardized way for a driver or motor carrier to make the distinction that they operate under the short-haul exception to ensure compliance with the exception. ATA stated that, while they understand that an ELD requirement is impractical for some drivers who are engaged in local, daily activities, motor carriers should be required to have some form of an electronic device that tracks on-duty and driving times.

The Customized Logistics and Delivery Association stated that timecards and run distances are recorded by all operational systems of a carrier ensuring compliance and enforcement.

A few commenters stated that the proposed changes to short-haul operations would not create any new enforcement difficulties. Some carriers said that no enforcement difficulties would arise because all their trucks have ELDs and all route locations and durations would be monitored. Motor Transport Association of Connecticut said that the short-haul exception would make enforcement easier for law enforcement officials because it would be uniform for CDL and non-CDL drivers.

Road Safe America, ATA, Advocates, and several motor carriers warned, however, that enforcement would be harder because there would be no legitimate way of tracking hours driven or worked without requiring RODS or ELDs. Road Safe America reasoned that enforcement difficulties would increase because the additional 50 air-miles could expand driving ranges into multiple States, which would require coordination between officers of different jurisdictions to determine if a driver is legally employing the short-haul exception.

ATA suggested that FMCSA examine additional ways to track and enforce short-haul drivers' on-duty and driving times during the duty day. TruckerNation suggested that FMCSA establish an “operating policy” for officers to determine the allowable radius to ensure consistent enforcement actions.

FMCSA Response:

The Agency agrees with the commenters who remarked that the proposed changes to the short-haul regulations will simplify motor carriers' ability to comply with and enforce the HOS rules. The extension of the 100 air-miles radius to 150 air-miles makes the distance radius consistent with the distance limitation for short-haul CMV drivers of property-carriers who are not required to possess a CDL, which will simplify enforcing requirements of the short-haul exceptions for motor carriers that use both CDL and non-CDL drivers. Likewise, extending the short-haul duty period to 14 hours makes the duty period consistent with the rule for drivers of property-carriers who do not operate under the short-haul provision. For carriers that have both short-haul and long-haul property operations, this will simplify their enforcement of the 14-hour duty period.

FMCSA does not agree that these changes to the short-haul exception will increase the likelihood that motor carriers will not comply with HOS rules. Motor carriers must still ensure that short-haul drivers using the exception do not drive more than 11 hours for property carriers or 10 hours for passenger carriers and that they return to the same location they left from at the beginning of their work shift. Expanding the duty period to 14 hours without increasing the existing 11 hours of drive time will allow short-haul truck drivers more flexibility to spend time with customers, respond to changes in market demand such as peak holiday delivery times, and reduce the administrative burden of determining how often a driver has gone beyond 12 hours or 100 air-miles in any 30-consecutive day period. This change would also somewhat align with the 14-hour rule for drivers of property-carrying vehicles who do not operate under the short-haul provision.

FMCSA does not agree that motor carriers using the short-haul provision should be required to use ELDs. Because drivers would be returning to their original duty reporting location at the end of their shift, FMCSA will continue to allow motor carriers with short-haul operations the option to use duty reporting location time records rather than a record of duty status or ELD. Although motor carriers that conduct short-haul operations may use electronic tracking for payroll or other purposes, there is no requirement that the time records be electronic. In addition, motor carriers are not required to use the short-haul provision and can require their short-haul drivers to use an

ELD or other type of electronic device if they choose.

In addition to simplifying the motor carrier's ability to comply with and enforce HOS for their drivers, the Agency agrees with the commenters who stated that the changes to the short-haul operations provision would also simplify enforcement since the air-mile radius distance will be consistent for both CDL and non-CDL drivers.

As for comments that enforcement would be harder without required RODS or ELDs and that the 150 air-mile radius could expand driving into multiple States, changes do not increase the difficulty of enforcement of the FMCSRs. Enforcement personnel will be required to use the same investigative techniques as they currently do to verify radius of travel, driving time, and start time for the work shift. Generally, enforcement personnel use an online air-mile radius calculator to determine compliance with radius requirements and would not require assistance from officers of different jurisdictions when the radius extends into adjacent States. FMCSA will continue to work with the Commercial Vehicle Safety Alliance's (CVSA) committees assuring uniform training development and delivery, and enforcement tolerances. This on-going partnership will ensure smooth implementation of the modified short-haul provision. Many State officials already have experience dealing with non-CDL short-haul drivers who are currently provided a 14-hour driving window and 150 air miles within which to operate and this first-hand knowledge will be helpful in developing the training materials.

More Behind-the-Wheel Time During the Driving Window.

The NPRM asked if drivers would drive farther or longer in the driving window (

i.e.,

spend more of the work shift behind the wheel) if the short-haul exception was revised. FMCSA also asked whether the time behind the wheel for these operations would differ from that of drivers complying with the ELD requirements.

Many commenters, including motor carriers and drivers, argued that drivers would not drive farther or longer for various reasons, including that drivers would be required to return to their original locations, that the 11-hour maximum driving rule would still apply, and that the current miles and radius are sufficient.

Citing studies, the U.S. Chamber of Commerce stated that, while shifts in driver schedules would occur, overall increase in driver schedule intensity would not. The commenter reasoned that, because most drivers never approach the maximum daily or weekly allowable driving limits, only the administration of driving shifts would change.

OOIDA and a few motor carriers argued that a short-haul driver may drive farther with the expanded air-mile radius, especially in more rural areas, but noted that the proposal still maintains the current 11-hour driving limit.

Some commenters said the exception has the potential to increase driving hours and miles. Road Safe America and IBT argued that short-haul drivers would now drive longer, especially since RODS would not be required and law enforcement would not be able to ensure that a driver did not drive for the entire 14-hour duty period. IBT added that surveys show that drivers are already being required to perform or will likely be assigned work that would increase miles traveled or entail more non-driving tasks that extend the workday to 14 hours, all of which will increase their fatigue and decrease safety. A few commenters stated that interstate and intrastate operations would likely use the additional 50 air-miles and additional time to service customers who would otherwise receive service through a separate operational schedule.

Commenters, including OOIDA and other industry associations, asserted that short-haul drivers would not drive any further or longer than those complying with ELD requirements. Some industry associations argued that many carriers would use ELDs regardless of whether they could operate under the short-haul exception.

The ABA remarked that ELD providers could serve as an invaluable resource to FMCSA for purposes of providing data on use of the short-haul exception (

i.e.,

frequency of use and distances traveled).

FMCSA Response:

The Agency agrees that drivers will generally not spend significantly more time behind the wheel on a daily basis than they currently do, especially because they are limited to 11 hours of driving time. With respect to the notion that drivers will drive farther by falsifying time records due to the lack of an ELD, the Agency notes that the exception allowing short-haul drivers to use time cards as opposed to RODS has long existed in the HOS rules. Nothing in the changes to the short-haul exception creates additional opportunities for short-haul drivers to falsify time records. The normal work-reporting location requirement remains applicable to short-haul drivers.

As to ABA's comment regarding ELD data as a valuable resource, it must be noted that 49 U.S.C. 31137(e)(1) prohibits the Secretary from using data from ELDs except “to enforce the Secretary's motor carrier safety and related regulations.” Therefore, the ELD data cannot be used, outside the context of enforcing part 395, to analyze either the frequency of use of the short-haul exception or the distances traveled by drivers operating under the short-haul exception. Furthermore, given that carriers using ELDs for short-haul operations do so on a voluntary basis, such data would not be representative of the wide variety of short-haul operations.

Cost Savings from Not Using ELDs.

FMCSA asked for comments on the cost savings that would be expected from not having to comply with the ELD requirements for operations out to a radius of 150 air-miles. Commenters noted that cost savings could range from $240 to $1,700 per truck, including the costs for purchase of the device, data maintenance, and technical support. Comments from industry associations stated that the cost savings would be at least $500 to $1,000 per truck, including costs for equipment, maintenance, repair, and back office administration. ABA stated that, due to the diverse nature of the motor coach industry, some segments of the driver population would continue to use ELDs. Road Safe America warned that the cost savings associated with the avoidance of ELDs would be negligible compared to the far greater costs of significantly increased risk of fatigue-related crashes associated with extending the short-haul exceptions. ATA suggested that FMCSA assess the motor carrier populations affected by the changes to the short-haul exception to better estimate the industrywide cost savings of the proposed rule.

FMCSA Response:

FMCSA acknowledges commenters' views. FMCSA previously estimated a per-truck cost of $419 per ELD, and notes that this is within the range provided by commenters.

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It is, however, unclear how many motor carriers and drivers will no longer be required to use ELDs. For instance, although some bus routes will no longer need ELDs, the motor carrier may choose to retain the device to use the bus on longer-haul routes, should the occasion arise. Further, some motor carriers use and will retain ELDs for business reasons, even if not required by regulation. Under the changes made to the short-haul exception today, these motor carriers will not necessarily see a reduction in the number of ELDs. FMCSA is not

quantifying a cost savings in this rule due to the uncertainty surrounding the number of vehicles that will no longer use ELDs.

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80 FR 78292, December 16, 2015.

FMCSA reviewed the comments and tried to estimate the number of drivers who would be covered by the short-haul exception. This is discussed in detail in section 2.4 (Baseline for Analysis) of the RIA for the final rule. Inadequate data prevented FMCSA from estimating the number of additional drivers who will likely operate under the revised short-haul exception. The Agency has determined that the carrier-reported information on drivers operating within 100 air miles of their work reporting location is a good proxy for the count of drivers who are eligible for, and will operate under, the short-haul exception following the implementation of this final rule.

Return to the Normal Work Reporting Location.

Some commenters to the ANPRM requested that drivers using the short-haul exception be allowed to end their work shift at a different location than the one from which they were dispatched. FMCSA requested public comment on this issue, including which segments of the motor carrier industry would be impacted by such a change and whether the change would have an adverse effect on safety, or lead to operational changes such as increased driving time per trip or driving in the 12th and 13th hour after coming on-duty.

Many commenters, including the U.S. Chamber of Commerce, Advocates, motor carriers, and drivers, argued that short-haul drivers should not be allowed to end the work shift at a different location. Road Safe America, CVSA, the Trucking Solutions Group, and Sysco Corporation said that removing this requirement would contravene the original intent of the short-haul exception. Trucking Solutions Group added that such a change would give short-haul companies a competitive advantage over companies that is ineligible to operate under the exception. ATA warned that the provision to return to the same location ensures compliance with the short-haul requirements; otherwise, enforcement would have no way to ensure drivers adhere to the air-mile radius and on-duty limits. The Trucking Alliance, Road Safe America, and CVSA said that short-haul drivers should be required to return to their work reporting location, because otherwise drivers would be able to “leapfrog” from one location to another across the country, extending the effective air-mile radius beyond 150 air miles. Advocates argued that allowing carriers to return to a different location would effectively turn them into traditional long-haul operations minus the required rest break and ELDs.

Many commenters, however, including TruckerNation, OOIDA, ABA, and industry associations, supported allowing drivers to end the shift at a different location, citing various benefits, including minimizing driving time and distance traveled, reducing wear on the fleet, aligning with the diverse nature of the trucking industry, maximizing the allowable on-duty period, leading to more productive and flexible schedules, and not negatively impacting safety. Many industry associations stated that returning to the same location does not necessarily promote safer driving habits and that modern technology allows businesses to monitor the start and stop locations of their drivers via tracking apps and electronic communications.

The Minnesota Trucking Association remarked that its members were split on this question, with some supporting allowing drivers to end at a different location.

FMCSA Response:

The Agency has opted not to change the requirement that short-haul drivers return to their work reporting location at the end of their shift. The current requirement is consistent with operations that are generally considered short-haul. As commenters noted, the current requirement assists enforcement personnel in determining the applicability of the short-haul exception and prevents abuse. If the requirement were changed, enforcement personnel would not have a beginning reference point from which to calculate the 150 air-mile radius. The provision would be difficult to enforce and could lead to abuse as drivers could potentially “leap-frog” across the country without any way to verify their hours of service.

The 30-Minute Break in Relation to the Short-Haul Provision. The NPRM asked if eliminating the 30-minute break requirement for drivers who are potentially driving later in their duty period would impact safety.

A few commenters, including industry associations, said that the elimination of the 30-minute break requirement would not negatively impact safety for various reasons, including that short-haul drivers often make frequent stops throughout the on-duty period, are less likely to be affected by driving-related fatigue, and will have the flexibility to stop as needed to rest under the additional time provided in this rule. The Trucking Alliance said the 30-minute break is not necessary because short-haul drivers would be performing many non-driving activities each day. Citing research studies, the Petroleum Marketers Association of America argued that, while the studies did not specifically address the 30-minute break, they indicate short-haul drivers are less likely to experience reduced safety performance due to the nature of the job. TruckerNation stated that the proposed changes to the 30-minute break would mean “short-haul operators will not reach the 8th consecutive hour of drive time without the opportunity to have an on-duty, not driving change in duty status” and would eliminate regulatory complexity by making the short-haul exceptions the same as HOS regulations for all drivers.

IBT, citing research and studies, said that eliminating the 30-minute break requirement for short-haul drivers would have an adverse impact on safety as data demonstrates that crash risk significantly increases after the 7th consecutive hour of a driver's workday.

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Another commenter, a driver, warned that the elimination of the 30-minute break for drivers who are potentially driving later in their duty period would impact safety because drivers would not obtain adequate rest and their performance could suffer. Advocates asserted that by asking this question, FMCSA is “admitting” that the proposed changes would result in drivers being scheduled to drive later in their duty period.

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IBT cited: 65 FR 25539 (Apr. 2000); Saccomano, F., et al., “Effect of Driver Fatigue On Truck Accident Rates,” Urban Transport and the Environment for the Twenty-First Century (ed. L.J. Sucharov), Computational Mechanics Publications, Southampton, U.K., 439-446 (1995); Saccomano, F. and Shortread, J., “Truck Safety: Perceptions and Reality,” the Institute for Risk Reduction, Ontario, Canada, 157-174 (1996).; Lin, T. et al., “Time of Day Models of Motor Carrier Accident Risk,” Transportation Research Record 1467: 1-8, Transportation Research Board, National Research Council, (1994); Frith, W., “A Case-Control Study of Heavy Vehicle Drivers' Working Time and Safety,” Proceedings of the Australian Road Research Board Conference, 17(5): 17-30 (1994) and Jovanis, J.P., Wu, K.F., and Chen, C., “Hours of Service and Driver Fatigue—Driver Characteristics Research,” FMCSA (April 2011), DOT docket number FMCSA-2004-19608-27614.

FMCSA Response:

FMCSA concludes that the expansion of the criteria for short-haul operations and the associated elimination of the 30-minute break requirement for these drivers will not have an adverse impact on safety. As noted above, the primary factors influencing safety outcomes for short-haul drivers are the continued adherence to the 11-hour driving time limit and the continued prohibition against driving after the 14th hour of the beginning of the work shift. FMCSA acknowledges that in the 2011 final rule and during the subsequent litigation, the

Agency argued that, on their face, the safety benefits of an off-duty 30-minute break requirement applied to short-haul operations as well as long-haul. The D.C. Circuit Court of Appeals, however, found that applying the 30-minute break requirement to all drivers despite the clear distinctions between short-haul and long-haul operations was not justified in the record.

15

The Agency has received no new evidence to compel a different finding.

15

American Trucking Ass'n

v.

FMCSA,

724 F.3d 243, 253 (D.C. Cir. 2013).

Moreover, there is no safety basis for expanding the definition of short-haul but continuing to require a 30-minute break for the subset of short-haul CDL drivers who operate between 100 and 150 air miles, or who drive between the 12th and 14th hour of coming on duty. To the extent that the debate and comments about the safety impact of relieving this group of drivers of the need to comply with the 30-minute break provision lingers, FMCSA believes it is best resolved below in the Agency's decision concerning changes to the 30-minute break.

The changes adopted in this final rule result in the break being required after 8 consecutive hours of driving time, rather than 8 hours after coming on-duty. That change alone would make the 30-minute break inapplicable in nearly all short-haul operations in that they would not drive 8 consecutive hours without having a break of at least 30 minutes from the driving task.

FMCSA reviewed the Blanco study and notes that it found that any type of break (both off-duty, and on-duty not driving) was beneficial to the driver.

16

Furthermore, it has been demonstrated in multiple research efforts that time on task is a leading contributor to driver fatigue. The requirement for a break after 8 hours of consecutive driving time addresses this concern more adequately than requiring a break after 8 hours of coming on-duty, and short-haul drivers have frequent breaks from driving throughout the day. Therefore, FMCSA disagrees with the commenters who stated that allowing short-haul to be excepted from the requirement would have an adverse impact on safety and continues to except short-haul drivers from the 30-minute break requirement despite the extension of the duty day to 14 hours.

16

“The Impact of Driving, Non-Driving Work, and Rest Breaks on Driving Performance in Commercial Motor Vehicle Operations.” Blanco, et al. (2011). Available in the docket for this rulemaking.

Comments about the Relationship Between Changes to the Short-Haul Exception, Adverse Driving Conditions Exception and ELD Mandate.

CVSA and Schneider National Carriers, Inc. stated that short-haul carriers using the proposed exception without using an ELD should not be eligible for workday extensions, like that granted for adverse driving conditions. The commenters reasoned that short-haul drivers would be familiar with the routes and weather in their operating territory and would be able to abuse the program if allowed to claim an extra 2 hours of driving time. A few commenters, including the Trucking Alliance, U.S. Chamber of Commerce, industry associations, and motor carriers, stated FMCSA should require ELDs regardless of the distance traveled.

TruckerNation suggested that FMCSA include clear regulatory language explaining that short-haul operators are exempt from the ELD mandate and are only required to prepare and maintain time cards. The Trucking Alliance suggested harmonization between the interstate CDL short-haul operations exception and the interstate non-CDL short-haul operations. An industry association developed a “Daily Driver” concept as an alternative to the short-haul exception and suggested specific language.

FMCSA Response:

FMCSA believes that the revised short-haul exception adopted today maintains safety while providing motor carriers and drivers greater flexibility. The Agency is not persuaded that various alternatives suggested by commenters would achieve that goal. Requiring ELDs for any subgroup of the short-haul carriers would essentially negate the short-haul exception because the daily preparation of RODS would make the regulatory scheme for short-haul operations largely the same as other operations. The extension of the workday from 12 to 14 hours for returning to the original work reporting location without increasing the existing 11 hours of driving time will put short-haul operations on essentially the same footing as long-haul operations with the distinction being that they must return to the normal work reporting location. Increasing the 100 air-mile radius distance to 150 air-miles will allow short-haul drivers greater flexibility. Together, these provisions will reduce potential pressure on drivers for timely completion of their duty day.

Drivers who normally operate under the short-haul exception but occasionally find it necessary to exceed those limits can already drive within a 14-hour window for up to 8 days in any 30-consecutive day period without ELDs, provided they utilize paper RODS, or for more than 8 days in any 30-day consecutive period with an ELD. Whether to remain within or exceed the short-haul limits is strictly a business decision on the part of the carrier, and the Agency has not identified safety issues associated with the use of either of these options.

The NPRM did not propose to harmonize the short-haul rules for CDL and non-CDL drivers (§ 395.1(e)(1) and (2), respectively) concerning the allowance of a 16-hour window up to 2 days in a 7 consecutive day period for non-CDL holders. The Agency has not witnessed a demand for that level of flexibility since implementing the ELD mandate either in the form of requests for guidance or clarifications, or applications for exemptions. Therefore, the Agency did not propose such a change in the NPRM and considers the matter to be beyond the scope of this rulemaking.

Commenters Suggesting Industry-Specific Exceptions.

A few trade groups requested that FMCSA allow industry-specific exceptions for certain short-haul operations, including for hazardous materials, concrete pumps, construction vehicles, and waste and recycling. The National Lumber and Building Material Dealers Association urged FMCSA to provide the lumber and building material industry a short-term ELD exception stating that many of their members use short-term rentals of 30 days or less to meet high demand periods or instances where vehicles have been taken out of operation for repairs or service. The American Farm Bureau Federation suggested allowing drivers hauling live animals and agriculture to rest “at any point during their trip without counting this rest time against their HOS allotments and allowing drivers to complete their trip, regardless of HOS requirements, if they come within 150 air-miles of their delivery point.”

The National Private Truck Council, Inc. suggested requiring drivers to document their adherence to the 150 air-mile radius and 14-hour time requirements through GPS telematics, paper log, timecard notation, or some equivalent means. The American Fuel and Petrochemical Manufacturers asked for additional information from FMCSA on the potential impacts of the proposed short-haul exception on recordkeeping requirements, including the current 8-in-30 exception.

FMCSA Response:

The motor carrier industry is diverse. As noted above the Agency has granted multiple exemptions for certain industry segments and there are various statutory and regulatory exceptions for several industry segments. Many of the

commenters cited the exemptions and exceptions. While the exemptions granted were for certain industry segments, the exemptions generally fall within the 150 air-mile distance and/or 14-hour time constraint, such that this final rule addresses the issue in general terms rather than specific industry segments. Also, given that the Agency did not propose specific industry carve-outs in the NPRM, considering such regulatory exemptions is outside of the scope of this rulemaking.

The requirements for applying for an exemption are provided in 49 CFR part 381 subpart C of the FMCSRs. After receiving an application for exception from the FMCSRs, the Agency will publish a notice in the

Federal Register

as required by § 381.315 and request public comment on whether the Agency should grant the request. FMCSA cannot grant an exemption unless it would likely achieve a level of safety equivalent to that achieved by complying with the rule from which an exception is sought.

In recent years, the Agency has received numerous requests for exemptions related to the short-haul provisions; several of these requests for exemptions have been granted (available at

www.fmcsa.dot.gov/exemptions

), while others have been denied.

FMCSA did not propose or consider new alternative means for motor carriers to document short-haul drivers' hours under the revised short-haul exception, and is not adding any new recordkeeping requirements at this time. Furthermore, the changes to the short-haul provisions in this final rule in no way relieve carriers and drivers of the responsibility for complying with the current recordkeeping requirements found in § 395.1(e)(1)(v), which are consistent with 6-month recordkeeping requirements for other records. See,

e.g.,

§ 395.8(k)(1) (requiring retention of RODS and supporting documents for 6 months); § 395.22(i) (requiring motor carriers to retain for 6 months a backup copy of ELD records).

4. Adverse Driving Conditions

NPRM.

The Agency proposed allowing drivers encountering adverse driving conditions a driving window of up to 16 hours (for property carriers) within which to complete up to 13 hours of driving, or a duty period of up to 17 hours (for passenger carriers) within which to complete up to 12 hours of driving.

FMCSA also sought additional information and data on the impacts of changing the adverse driving conditions provision, in part to assess its potential costs and benefits. Specifically:

• Would this change cause drivers to travel farther in adverse driving conditions?

• Would this change drivers' behavior when encountering adverse driving conditions? How so?

• Understanding adverse driving conditions cannot be predicted, would drivers utilize this provision more often after this change?

Additionally, FMCSA requested public comment about potential modifications to the definition of “adverse driving conditions.” Specifically, the Agency requested input on the suggestion that knowledge of the existence of adverse driving conditions should rest with the driver rather than the dispatcher. Alternatively, FMCSA asked whether the requirement for lack of advance knowledge at the time of dispatch should be eliminated, and whether the current definition of “adverse driving conditions” should be modified to address other circumstances.

Commenters Supporting an Extended Driving Window.

The changes proposed in the NPRM would apply to drivers of both property-carrying CMVs, normally subject to a 14-hour driving window, and passenger-carrying CMVs, normally subject to a driving window of 15 non-consecutive hours.

Numerous commenters, including OOIDA, CVSA, the U.S. Chamber of Commerce, ABA, IBT, motor carriers, industry associations, and individuals expressed support for the proposed adverse driving conditions provision. Many individuals and drivers stated that the extension would relieve the pressure, stress, and fatigue on drivers. Most commenters reasoned that granting drivers more flexibility would improve road safety.

Some commenters argued that road conditions are not always accurately reflected in weather radar maps or other technologies, so drivers should have the flexibility and discretion to determine when it is safe to drive. The California Highway Patrol said the provision would allow driving at a reduced speed or delay operations while in adverse driving conditions, which may reduce the risk of crashes and improve road safety. Keep Truckin, Inc. based its support on anonymized and aggregated data of daily traffic patterns and speed fluctuations in Washington, DC and Atlanta, Georgia. An industry association said extending the driving window for adverse driving conditions would greatly benefit the delivery of farm supplies.

While supporting the proposal, OOIDA, ABA, and the United Motorcoach Association expressed concern that the current adverse driving condition rules are not enforced consistently. The U.S. Chamber of Commerce and several industry associations said their members rarely use the exception, although the expansion would be helpful in extreme conditions.

FMCSA Response:

FMCSA agrees that by adding time to the duty day for this exception, drivers may reduce their speed or delay operations when they experience unanticipated adverse driving conditions.

FMCSA agrees that radar and technology may not be entirely accurate and thus leaves the driver/dispatcher discretion in this final rule. FMCSA is not aware of any issues with enforcement of or compliance with the adverse driving conditions exception.

Commenters Requesting Additional Flexibility for Adverse Driving Conditions.

Many commenters stated that the proposal did not go far enough. Among their comments:

• The provision should include unforeseen traffic conditions, such as emergency road repairs, congestion, and traffic accidents to allow drivers to compensate for ever worsening traffic congestion and infrastructure problems.

• Drivers should be allowed to decide how to respond to road conditions.

• The proposed changes to the extended driving window were not sufficient.

A few industry associations, motor carriers, and individual commenters argued that drivers should have more discretion over the hours in which they drive in potentially adverse driving conditions and that this provision did not grant enough flexibility to drivers.

TruckerNation stated that increased clarity and supporting guidance is needed, asking how a driver would be required to document the use of this provision on RODS to enable its increased and proper use. Many industry associations and individuals also commented that the current definition of “adverse driving conditions” should be clarified. Several commenters asked that the definition be expanded to address detention time or concerns specific to various sectors of the industry.

FMCSA Response:

This final rule modifies the adverse driving condition exception to allow extension of the driving window by up to 2 hours, consistent with the 2-hour extension of driving time permitted under the current regulations. Though some commenters argued for an expansion of the current definition of “adverse driving conditions” to include circumstances such as unforeseen

traffic-related conditions, a close look at the definition shows that these road conditions are already covered. The HOS rules currently define “adverse driving conditions” as “snow, sleet, fog, other adverse weather conditions, a highway covered with snow or ice, or unusual road and traffic conditions, none of which were apparent based on information known to the person dispatching the run at the time it was begun.” The definition specifically refers to “unusual road and traffic conditions” which would cover most of the concerns mentioned by commenters. FMCSA does not believe it is necessary to further expound on the traffic conditions, as they are generally covered. However, the definition is modified for clarity and to recognize that the adverse driving conditions exception might apply based on knowledge of a driver (in addition to the dispatcher) under certain circumstances.

Commenters Opposed to Additional Flexibility for Adverse Driving Conditions.

Some commenters opposed the extension of the driving window. They said that:

• The extension would encourage drivers to continue driving when conditions are poor.

• Dispatchers and drivers would extend the day without any adverse driving conditions or otherwise abuse the provision to get around a violation.

• This provision would cause an enforcement problem.

Several commenters, including IIHS, AASM, Senator Murray, and Transportation Trades Department, AFL-CIO, argued that the proposal would worsen driver fatigue. Advocates warned that extending the driving window enables driving later in the duty period, which research has associated with increases in crash risk, stating that FMCSA provided no analysis of that risk. IIHS cited studies on the safety and health consequences for drivers of disrupted circadian rhythms. Congressman DeFazio warned that the proposed rule would significantly increase on-duty time.

The Trucking Alliance opposed this provision, saying that the definition of “adverse driving conditions” is unclear, allowing drivers to exploit the exception and use it to extend their driving window every day. Conversely, the Kentucky Driver's Association commented that, because the proposed rule could be abused to pressure drivers to drive beyond the normal 14-hour cap, it should be limited to “verifiable” events.

Advocates stated that FMCSA's comparisons of this proposal with duty period extensions permitted by the Federal Aviation Administration (FAA) and the Federal Railroad Administration (FRA) ignore the regulatory and operational differences among these Administrations and do not include any of the FAA's or FRA's limitations or additional requirements, nor has FMCSA performed any analysis to indicate that such comparisons are correct and meaningful.

FMCSA Response:

FMCSA acknowledges that the proposal could allow drivers who experience adverse driving conditions to operate later into the duty day. The Agency also acknowledges that parallels with the airline and railroad industries are not exact. However, this change would create an incentive for drivers to drive more slowly or take a break from driving during adverse driving conditions, given that, as a result of this change, they will have up to 2 additional hours to either complete their run or to reach a safe location without exceeding the maximum daily driving windows. Additionally, FMCSA notes that surveys by two major trade associations demonstrate that the adverse-driving-conditions exception is not frequently used. Although changes intended to clarify the definition and improve flexibility may result in an increase in the use of the exception, there is little reason to expect that either the increase in use (or its potential abuse) will be significant.

FMCSA also disagrees that this change would increase enforcement problems. Drivers relying on the adverse driving conditions exception would routinely annotate their RODS to avoid an HOS violation; consistent with current practice, a law enforcement officer could investigate the merits of the claimed exception.

Commenters Discussing the Impact on VMT.

Several commenters, including OOIDA and many other industry associations, argued that this provision would cause drivers to drive more safely, not greater distances, in adverse driving conditions. Currently drivers may drive up to 2 additional hours but they may be pressured to complete driving within the 14-hour window. The expansion of the driving window would enable them to drive more cautiously.

Conversely, AASM argued that the provision would cause drivers to drive longer distances. They argued that the assumption that drivers would reduce speed or delay operations during adverse driving conditions is not supported by scientific study. An individual argued that this provision will cause drivers to travel farther distances. ABA and an industry association said that predicting the effect of the provision on travel distance is impossible.

FMCSA Response:

This rule would not allow an increase in driving time, but it would increase the driving window from 14 to 16 hours when an adverse driving condition is encountered. FMCSA asked whether the extension of the driving window in the event of adverse conditions will result in an increase VMT. No commenter provided responsive data, and none may exist. Ultimately, each adverse driving condition will create a unique set of unpredictable circumstances that drivers and motor carriers will react to—not plan for. Accordingly, motor carriers will not be able to plan for additional deliveries, trips, or VMT, and the final rule does not quantify the impact of these driving changes on VMT. The FMCSA believes that any increase in VMT will be negligible because the total amount of driving time remains unchanged by this rule.

Comments About the Impact of the Exception on Driver Behavior.

The NPRM asked whether the proposed rule would change drivers' behavior upon encountering adverse driving conditions. Multiple commenters, including OOIDA, ABA, IBT, other industry associations, and motor carriers said the provision would improve safety by allowing drivers the flexibility to find a safe place to park and avoid adverse driving conditions. However, the NSC cited research and studies arguing that the longer an individual is awake, the higher the likelihood of safety-critical mistakes.

Advocates warned that abuse of the proposed exception would likely increase because carriers could coerce drivers to complete trips when conditions are adverse or because drivers could adjust their evaluation of the risk and continue to drive despite the opportunity to use the exception to stop. Either way, Advocates said FMCSA provided no analysis of these possibilities and their effect on safety.

Other commenters, including Western States Trucking Association and Sysco Corporation, said that the provision will not change driver behavior.

FMCSA Response:

FMCSA agrees with commenters that it is hard to predict, on an aggregate level, what behaviors may change. However, trade association surveys suggest that this exception is not frequently used. FMCSA does not believe the level of use or abuse will change significantly because of this rulemaking.

Nevertheless, FMCSA agrees with commenters that the additional flexibility provided by the revised

exception will assist drivers in avoiding perilous conditions. FMCSA emphasizes that this change will not increase the driving time available during adverse driving conditions. By increasing duty time without increasing driving time, this change will provide the drivers with more non-driving options to safely respond to an adverse driving condition.

FMCSA does not believe that changes to the adverse driving conditions exception will mean that drivers are awake longer. The studies raised by commenters did not look at workdays with opportunities for rest or sleep in them. Additionally, as pointed out by OOIDA, ABA, IBT, other industry associations, and motor carriers, drivers may utilize the additional duty time provided by this change to take a break from driving that they may not have taken otherwise.

Comments About the Frequency of Adverse Conditions.

The NPRM asked drivers whether they expected to use the proposed exception more often. Many commenters predicted that drivers would use the exception more often, especially if the definition were clarified.

The U.S. Chamber of Commerce, however, does not anticipate increased use because its motor carrier members do not regularly use it in the first place. Other commenters also stated that drivers will not use the provision more often. The National Association of Small Trucking Companies said that the only reason for a change in the frequency of use would be if a truck driver began working in a new region. A motor carrier argued that driver behavior, in terms of making the decision whether to use the exception or the frequency of use often to use the exception, will not change because the definition of “adverse driving conditions” remains unchanged.

FMCSA Response:

FMCSA does not believe the changes adopted today are likely to increase significantly the use of the exception, but is unable to estimate changes in the frequency on an industry-wide level. The change provides drivers with a better opportunity to use the additional driving time already allowed under the current rule such that the adverse conditions that necessitate driving beyond the 14th-hour of the work shift may be addressed provided the driver can reach an appropriate stopping point without exceeding 13 hours of driving time.

Definition of Adverse Driving Conditions; Driver and Dispatcher Knowledge.

The NPRM asked for public comment about potential modifications or additions to the definition of “adverse driving conditions.” Commenters asked for both a broader definition, as well as a more specific definition.

More Detailed Definition.

OOIDA, TruckerNation, other industry associations, and motor carriers said the definition should be expanded to include all unpredictable conditions that a driver may face, such as traffic congestion, vehicle accidents, construction, or road closures. Multiple commenters and drivers said the proposal should specifically define adverse driving conditions to embrace non-weather conditions, including Federal and State safety inspections, unexpected loading or unloading issues at shippers and receivers, and truck breakdowns.

Schneider National Carrier, Inc. recommended that the adverse driving conditions exception be available to drivers only once per week. Schneider added that the exception should not be allowed to be combined with the use of the split sleeper berth option or the proposed split-duty provisions. The American Moving and Storage Association recommended also allowing carriers to use the adverse driving conditions exception for conditions known before dispatch.

TruckerNation suggested requiring an option on an ELD for a driver to upload evidence or a detailed annotation to establish and document adverse driving conditions.

Road Safe America, the Trucking Alliance, ATA, Advocates, a few industry associations and motor carriers said that the definition should be clarified, but not expanded. Advocates and Uline believe adverse driving conditions should be defined as accurately and narrowly as possible, and that the situations under which the exception may be used should be clarified to minimize abuse. ATA conducted a survey of its members, some of whom said that “adverse” should be narrowly defined to include only Federal or State declared emergencies, while others favored the inclusion of all unforeseen road conditions.

Broader Definition.

OOIDA recommended replacing the term “adverse” with “unforeseen” to be more encompassing. The U.S. Chamber of Commerce proposed a definition in which “adverse driving conditions” would be any conditions which could not be predicted at the time of dispatch, thereby granting flexibility to both drivers and dispatchers. A few industry associations recommended that FMCSA expand the definition to include specific provisions for livestock haulers. CVSA recommended making the definition like the Canadian federal definition.

Under the current definition, adverse driving conditions must not have been known to the dispatcher when the run began. The Agency asked whether the driver's lack of knowledge should be used as a precondition for the exception. FMCSA also asked whether the requirement for lack of advance knowledge at the time of dispatch should be eliminated.

Multiple commenters, including OOIDA, ATA, and motor carriers, said the driver knows the status of road conditions better than a dispatcher could, so the driver should be responsible for making safety decisions. TruckerNation stated that advance knowledge should not be a requirement and that, as with all safety decisions, discretion should be left to the driver. ATA acknowledged that dispatchers may be aware of adverse driving conditions before drivers, so dispatchers should continue to notify drivers.

OOIDA and the Association of American Railroads and the American Short Line and Regional Railroad Association said the requirement for the lack of advance knowledge at the time of dispatch should be eliminated because it prevents drivers from using the provision if road conditions change after dispatch.

No Changes.

Other commenters, including IBT, California Highway Patrol, and the Truckload Carriers Association, recommended that there be no changes to the current definition.

FMCSA Response:

FMCSA declines to make the definition applicable to specific sectors of the industry or to cover situations not contemplated by the current definition. The Agency also declines to exclude situations currently covered. Many of the suggested expansions would be covered under a reasonable interpretation of the current definition; inconsistent interpretations might be addressed best by training and further outreach efforts. Although the Agency does not believe the current definition is vague, it nonetheless has revised the definition for enhanced clarity.

Agency guidance concerning the exception makes clear that it covers only situations that occur after a driver started her or his trip.

17

This final rule does not deviate from that principle. The exception does not cover detention time, breakdowns, or enforcement

inspections—factors that are to be anticipated in the industry. Nor does it cover things such as road construction or detours except when they could not reasonably be known before the driver started driving, such as accidents that significantly interfere with traffic movement.

17

See Interpretations under the HOS rules, § 395.1,

https://www.fmcsa.dot.gov/regulations/title49/part/395.

The exception is mainly meant to cover situations outside a driver or motor carrier's control, and the Agency does not expect it to be invoked frequently. Thus, the Agency declines to limit its use to a fixed frequency or in combination with unrelated provisions of the HOS regulations or to expand on the current industry practice of documenting use of the exception on a driver's RODS.

However, the Agency believes clarification is appropriate given the common availability and use of technology that can provide motor carriers and drivers notice of adverse weather (and sometimes road) conditions. The definition has been revised somewhat to recognize that drivers on the road can evaluate situations that could not be foreseen before dispatch or the start of a duty day (or after a sleeper berth period). As revised, the definition covers conditions that are unknown, or could not reasonably be known, to the driver immediately before the start of the duty day or before resuming driving after a sleeper berth break, or to the motor carrier immediately before dispatching the driver. FMCSA believes that this change to the definition will lessen the need for future regulatory guidance. Furthermore, this change will not increase available driving time beyond what is currently allowed by the exception.

5. 30-Minute Break

NPRM.

FMCSA proposed to require a 30-minute break if more than 8 consecutive hours of driving (instead of 8 hours after coming on-duty) has passed without at least one 30-minute change in duty status. This would allow any 30 minutes of non-driving time to qualify as a break,

i.e.,

on-duty (not driving) time, off-duty time, or sleeper berth time. Many drivers have interruptions of their driving time during normal business operations, such as loading or unloading a truck, completing paperwork, or stopping for fuel.

Under the current rules, the break is: (1) Required to be off-duty time during which no work, including paperwork, may be performed, and (2) triggered after 8 hours on-duty time, regardless of the time spent driving. The flexibility provided by the NPRM would have allowed these normal breaks from driving to count as an interruption of the 8 hours of driving status (

i.e.,

“time on task” in the research literature), provided the break lasts at least 30 minutes. The proposed changes to the 30-minute break provision would not have allowed an increase in maximum driving time during the work shift or driving after the 14th hour from the beginning of the work shift.

The NPRM sought information and data on the impacts of changing the 30-minute break provision, in part to better assess its potential costs and benefits. Specifically, the Agency asked:

• Would you take fewer total breaks from driving with this change? How many and when would those breaks have occurred during your route?

• Do you expect to still take a 30-minute break if you have less than 8 hours of drive time? If so, would you take that break on-duty or off-duty?

• If you no longer need to take a 30-minute break, how would you expect to spend this additional time?

• How would this provision change your scheduling and planning?

• Do you expect to drive more miles or hours based on this change? Do you expect to be able to complete additional “runs”?

Additionally, the Agency acknowledged that many commenters to the ANPRM specifically asked that the 30-minute break requirement be eliminated entirely and considered that as an alternative under E.O. 12866. However, the NPRM said that, without the benefit of further information, it would not be appropriate to eliminate the 30-minute break. Given that the flexibility allowed in the proposal would alleviate many of the concerns expressed by commenters, in the NPRM FMCSA sought further information on the effect of eliminating the break requirement altogether. Specifically:

(1) What would be the safety impact of eliminating the required break, potentially allowing up to 11 consecutive hours of driving?

(2) What has been the cost to your company of complying with the 30-minute break rule since the compliance date for that rule, July 1, 2013?

(3) How often do work shifts require an individual to drive more than 8 hours without at least a 30-minute change in duty status?

(4) Would eliminating the break requirement result in greater cost savings than the current proposal? If so, what would be the amount of these cost savings?

Commenters Supporting the Proposed Revision.

Numerous commenters, including individual commenters, drivers, and some industry associations, supported the proposed changes for a variety of reasons, among them:

• Increased driver control and flexibility;

• Shortened on-duty hours, reducing fatigue;

• Increased control over break-time activities (

i.e.

using the break to load or fuel);

• Simplified implementation; and,

• Short-haul trip benefits.

Several commenters said, counterintuitively, that the 30-minute break made them more tired. The implication of such arguments seems to be that the focus on driving creates tension, which dissipates when drivers stop. Having relaxed against their will for 30 minutes, drivers may then find it difficult to recover their previous intensity, which feels to them like exhaustion—but does not have that effect. Virtually all commenters argued that the 30-minute break did not improve safety, and some even asserted that increases in CMV crashes and fatalities in recent years are attributable to counter-productive regulations like the 30-minute rule.

ATA described new research that the association believed suggested that there is additional benefit relative to an on-duty break. The Trucking Alliance and CVSA also said that a 30-minute on-duty break would not decrease safety for drivers needing a break.

The International Food Service Distributors Association stated that, in some cases, the proposal would allow food-service distributors to add additional stops to a route, maximizing efficiency and reducing traffic.

FMCSA Response:

The Agency agrees with the commenters that the 30-minute off-duty break generates pressure as drivers attempt to keep on schedule. Under certain circumstances, it may even push them to drive more aggressively than they would otherwise have done in the latter half of the 14-hour driving window, despite the fact the total driving time up to that point may have been limited by a variety of factors.

Identifying causal connections between particular rules and safety outcomes is difficult, many factors play a role in most crashes, and separating their individual contribution is often impossible. The best evidence on the effect of breaks is provided by the 2011 Blanco study, discussed in the NPRM and elsewhere in this rule.

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While

FMCSA has concluded that both on-duty breaks and off-duty breaks provide safety benefits essentially equivalent to those produced by an off-duty break (as well as productivity benefits), the Blanco study demonstrates that breaks of at least 30 minutes—whether on or off-duty—reduce SCEs in the hour after driving resumes.

18

“The Impact of Driving, Non-Driving Work, and Rest Breaks on Driving Performance in Commercial Motor Vehicle Operations.” Blanco, 2011. Available in the docket for this rulemaking.

FMCSA notes that many of the commenters who opposed a break of any kind provided inconsistent arguments. For example, the National Association of Small Trucking Companies quoted with approval a long-time member who said that “99.9 percent of all drivers will take a break of more than 30 minutes in any given 8-hour period” and therefore “the 30-minute mandatory break should disappear.” But if drivers routinely take 30-minute breaks during the work shift, as others have also noted, neither the previous break nor the amended break requirement adopted today could be as disruptive as many commenters have claimed. Furthermore, a large number of commenters asserted that they should be allowed to take breaks when they feel tired, not when an inflexible rule requires a break. Leaving aside the fact that the FMCSRs never prevent drivers from taking breaks, many of these comments imply that the 30-minute break typically interrupts drivers' schedules at the 8th hour. In fact, both the previous regulations and this final rule allow drivers to take a break at any point during an 8-hour period, offering latitude to select a convenient time.

Exemptions from the 30-minute break previously granted by FMCSA do not imply that the rule is ineffectual, as some commenters claimed, but rather that certain operations already include significant break time; require driver attendance when transporting hazardous cargo without other work, similar to § 395.1(q); depend on oversize vehicles which, because of their unusual size, are difficult to park for a break; or involve the transport of live animals that could be endangered by a break.

Commenters Opposed to the Proposed Revision.

Some individuals and drivers stated, without further explanation, that the 30-minute break should remain as off-duty time. Some individual commenters and drivers said they did not want to allow an on-duty 30-minute break because:

• Drivers would have to adjust schedules.

• Managers might abuse the on-duty break.

• Taking the break on-duty could fatigue drivers.

Some commenters, including a few industry organizations, cited research discussing fatigue, arguing that the 30-minute break must be off-duty to ensure that a driver will physically rest. The Truck Safety Coalition, et al. cited evidence saying that “driving time that occurred later in the driver's workday, due to performing nondriving tasks earlier in the workday, had a negative safety effect.”

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19

Soccolich, S., Blanco, M., Hanowski, R., Olson, R., Morgan, J., Guo, F., & Wu, S.C. (2013) “An analysis of driving and working hour on commercial motor vehicle driver safety using naturalistic data collection.” Accident Analysis & Prevention, Volume 58, 2013, Pages 249-258.

Advocates argued that many of FMCSA's claims, reasoning, and examples presented for the proposed changes to the 30-minute break are not valid, deeply flawed, inapplicable, and lack explanation and/or analysis.

FMCSA Response:

After reviewing the comments, FMCSA has not changed its conclusion that it should allow the 30-minute break to be met either by on-duty, not-driving time or by off-duty time. Also, the Agency concludes it is appropriate to allow drivers the discretion to take the 30-minute break at any point in the 8 hours after they start driving. Blanco, et al. (2011) found that the 1-hour window after a break from driving is associated with a significant reduction in SCE rate compared to the 1-hour window before a break.

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The study found that any type of break was beneficial to the driver, whether the break consisted of work activities or rest. To counter the effects of driving time that occurred later in the driver's workday, the Soccolich article stated “breaks were found to be a successful countermeasure to address the negative effects of time-on-task.”

20

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

Estimating a Change in SCEs with the 30-Minute Break.

The NPRM requested comments regarding how to estimate the change in SCEs from this temporal shift in the 30-minute break. Safety for the Long Haul Inc. provided research and data sources, arguing that SCEs are no longer a valid safety measurement and that FMCSA should choose another method of estimation. Safety for the Long Haul Inc. also commented on Naturalistic Driving (ND) Mixed-SCE Methodology studies, arguing that current SCE datasets are invalid, and that the SCE definition should be reconsidered. No other comments were received regarding the use of SCEs.

FMCSA Response:

FMCSA disagrees with the comments criticizing the Agency's use of SCEs. SCEs are a commonly used crash surrogate in traffic safety and naturalistic driving research. Crash surrogates are safety-related events (

e.g.,

time to collision, lane deviations, near crashes, etc.) used to evaluate crash potential and probabilities. Crash surrogates have been extensively used in the traffic safety research domain. There is a long history of methodologically diverse transportation studies that used crash surrogates as dependent variables. Crash surrogates are regularly used by research organizations worldwide, including an active research community affiliated with the Transportation Research Board (TRB) of the National Academies of Sciences, Engineering, and Medicine (National Academies) on this topic. The Subcommittee on Surrogate Measures of Safety, sponsored by the TRB Committee on Safety Data Evaluation and Analysis, meets regularly to discuss issues pertaining to crash surrogates. The goal of the subcommittee is to examine the suitability and use of surrogate measures of safety to address the lack of available crash data. One output of this subcommittee is a document that provides an overview of how surrogate measures are defined and used in transportation research.

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“Surrogate Measures of Safety”, Tarko, Davis, Saunier, Sayed, and Washington, 2009. Available at

https://www.semanticscholar.org/paper/Surrogate-Measures-of-Safety-Tarko-Davis/30801fa815159dad645eed6f1e3dbbbba2f30150,

last accessed January 21, 2020.

Although the features of SCEs can vary based on the research question posed in a particular study, an SCE has been defined as a “crash, near-crash, crash-relevant conflict, or unintentional lane deviation” that often has a measurable kinematic signature, including longitudinal and lateral acceleration, yaw rate, and active safety system activations.

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SCEs, such as near-crashes, are used in various transportation modes. In rail, SCEs are defined as “risk to the health and safety of any individual or risk of damage or destruction to any property, or any incident which may reduce the safety or integrity levels of any item of Railway Infrastructure.”

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The FAA also relies

on crash surrogates, including near midair collisions. As outlined in the Aeronautical Information Publication, crash surrogates identify unsafe conditions, allowing issues to be corrected before they lead to crashes and other incidents.

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22

“The Risk of a Safety-critical Event Associated with Mobile Device Subtasks in Specific Driving Contexts”, Fitch, Hanowski, Guo, 2014.

https://vtechworks.lib.vt.edu/bitstream/handle/10919/49687/NSTSCE%20Final%20Report%20for%20Cognitive%20Distraction.pdf

and

https://www.annualreviews.org/doi/abs/10.1146/annurev-statistics-030718-105153,

last accessed January 21, 2020.

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https://www.lawinsider.com/dictionary/safety-critical-event,

last accessed January 21, 2020.

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https://www.faa.gov/air_traffic/publications/atpubs/aip_html/part2_enr_section_1.16.html,

last accessed January 21, 2020.

SCEs and crashes have common characteristics (

e.g.,

kinematic signature), but SCEs occur with greater frequency than crashes. As crashes are rare events, studying SCEs allows researchers to gain insight into the factors that lead to crash genesis. The National Academies advocated several principles to determine the validity of using s

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