Federal Register/Vol. 85, No. 105/Monday, June 1, 2020/Rules

33396 Federal Register / Vol. 85, No. 105 / Monday, June 1, 2020 / Rules and Regulations

DEPARTMENT OF TRANSPORTATION E. ANPRM Public Listening Sessions motor vehicles (CMVs) prompted F. 2019 NPRM numerous requests for FMCSA to Federal Motor Carrier Safety VI. Stakeholder Engagement Following consider revising certain HOS Administration Publication of the NPRM provisions to provide greater flexibility. A. Summary of the Motor Carrier Safety Advisory Committee Meeting The Agency received requests from 49 CFR Parts 385 and 395 B. Summary of Comments Presented at the members of Congress and multiple [Docket No. FMCSA–2018–0248] NPRM Public Listening Sessions stakeholders seeking relief from certain C. Summary of the Written Comments to provisions. In response, FMCSA RIN 2126–AC19 the NPRM; FMCSA Responses to the published an advance notice of Written Comments proposed rulemaking (ANPRM) on Hours of Service of Drivers VII. Discussion of the Rule August 23, 2018 (83 FR 42631) and held A. Short-Haul Operations AGENCY: Federal Motor Carrier Safety five public listening sessions. The B. Adverse Driving Conditions Agency published a notice of proposed Administration (FMCSA), DOT. C. 30-Minute Break ACTION: Final rule. D. Sleeper Berth rulemaking (NPRM) on August 22, 2019 E. Split-Duty Provision (84 FR 44190) and held two additional SUMMARY: FMCSA revises the hours of F. TruckerNation Petition public listening sessions. This final rule service (HOS) regulations to provide G. Petitions for Rulemaking Submitted revises the HOS regulations to provide greater flexibility for drivers subject to After the NPRM greater flexibility for drivers subject to those rules without adversely affecting H. Compliance Date for the Rulemaking those rules without adversely affecting safety. The Agency expands the short- VIII. International Impacts safety. IX. Section-by-Section Analysis haul exception to 150 air-miles and B. Summary of Major Provisions of the allows a 14-hour work shift to take place A. Section 395.1 Scope of Rules in This Part Final Rule as part of the exception; expands the B. Section 395.3 Maximum Driving Time driving window during adverse driving This final rule will improve efficiency for Property-Carrying Vehicles without compromising safety by conditions by up to an additional 2 X. Regulatory Analyses hours; requires a 30-minute break after A. Executive Order (E.O.) 12866 providing flexibility for drivers in four 8 hours of driving time (instead of on- (Regulatory Planning and Review), E.O. areas without changing the maximum duty time) and allows an on-duty/not 13563 (Improving Regulation and allowable driving time. The rule extends driving period to qualify as the required Regulatory Review), and DOT Regulatory the maximum duty period allowed break; and modifies the sleeper berth Policies and Procedures under the short-haul exception in 49 exception to allow a driver to meet the B. E.O. 13771 (Reducing Regulation and CFR 395.1(e)(1) from 12 hours to 14 Controlling Regulatory Costs) 10-hour minimum off-duty requirement hours. It also extends the maximum C. Congressional Review Act radius in which the short-haul by spending at least 7, rather than at D. Regulatory Flexibility Act least 8 hours of that period in the berth exception applies from 100 to 150 air- E. Assistance for Small Entities miles. FMCSA modifies the definition of and a minimum off-duty period of at F. Unfunded Mandates Reform Act of 1995 least 2 hours spent inside or outside of G. Paperwork Reduction Act adverse driving conditions so that the the berth, provided the two periods total H. E.O. 13132 (Federalism) adverse driving conditions exception at least 10 hours, and that neither I. Privacy may be applied based on the driver’s (in qualifying period counts against the 14- K. E.O. 13783 (Promoting Energy addition to the dispatcher’s) knowledge hour driving window. Independence and Economic Growth) of the conditions after being dispatched, L. E.O. 13175 (Indian Tribal Governments) and extends the driving window during DATES: This final rule is effective M. National Technology Transfer and which the current exception for September 29, 2020. Petitions for Advancement Act (Technical Standards) extended driving time may be used by Reconsideration of this final rule must N. Environment (Clean Air Act, NEPA) up to 2 hours for truck and bus be submitted to the FMCSA operations under §§ 395.3(a)(2) and Administrator no later than July 1, 2020. I. Availability of Rulemaking Documents 395.5(a)(2), respectively. The Agency FOR FURTHER INFORMATION CONTACT: Mr. makes the 30-minute break requirement For access to docket FMCSA–2018– Richard Clemente, Federal Motor for drivers of property-carrying CMVs in 0248 to read background documents and Carrier Safety Administration, 1200 § 395.3(a)(3)(ii) applicable only when a comments received, go to http:// New Jersey Avenue SE, Washington, DC driver has driven (instead of having 20590–0001, (202) 366–4325, MCPSD@ www.regulations.gov at any time, or to been on-duty) for a period of 8 hours dot.gov. If you have questions about Docket Operations at U.S. Department of without at least a 30-minute non-driving viewing material in the docket, contact Transportation, Room W12–140, 1200 interruption. The break may be satisfied Docket Operations, (202) 366–9826. New Jersey Avenue SE, Washington, DC by any non-driving period of 30 SUPPLEMENTARY INFORMATION: 20590, between 9 a.m. and 5 p.m., minutes, i.e., on-duty, off-duty, or This final rule is organized as follows: Monday through Friday, except Federal sleeper berth time. FMCSA also holidays. To be sure someone is there to modifies the sleeper berth requirements I. Availability of Rulemaking Documents help you, please call (202) 366–9317 or II. Executive Summary to (1) allow drivers to take their required A. Purpose and Summary of the Regulatory (202) 366–9826 before visiting the 10 hours off-duty in two periods, Action Docket Operations provided one off-duty period (whether B. Summary of Major Provisions of the II. Executive Summary in or out of the sleeper berth) is at least Final Rule 2 hours long and the other involves at C. Costs and Benefits A. Purpose and Summary of the least 7 consecutive hours spent in the III. Abbreviations and Acronyms Regulatory Action IV. Legal Basis for the Rulemaking sleeper berth, and (2) add that neither V. Background The implementation of the Electronic period counts against the maximum 14- A. OOIDA Petition for Rulemaking Logging Device (ELD) rule (80 FR 78292, hour driving window in § 395.3(a)(2). B. TruckerNation Petition for Rulemaking December 16, 2015) and ELDs’ ability to The Agency excludes from the final C. Additional Petitions for Rulemaking increase compliance with HOS rule its proposal to allow a single off- D. 2018 ANPRM regulations for drivers of commercial duty period of up to 3 hours to be

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excluded from the 14-hour driving There are a number of other potential driving more than 11 hours during a window, for reasons explained later in cost savings of this final rule that work shift (13 hours under the adverse the document. FMCSA considered but, due to driving conditions exception) and uncertainty about driver behavior, could driving is prohibited after an individual C. Costs and Benefits not quantify on an industry level. These accumulates 14 hours of on-duty time This final rule will result in increased non-quantified cost savings include (16 hours under the adverse driving flexibility for drivers and a quantified increased flexibility resulting from the conditions exception). Because the rule reduction in costs for motor carriers. extension of the duty day and the air- provides greater flexibility for drivers to Federal and State governments will mile radius for those operating under take breaks from the driving tasks and the short-haul exception; the increased incur one-time training costs of greater flexibility to obtain recuperative options for drivers to respond to adverse approximately $8.6 million for training sleep, the rule will not have an adverse driving conditions during the course of inspectors on the new requirements. impact on drivers’ health. their duty period; reduced need to apply The Federal Government also will incur for exceptions from the 30-minute break As discussed later in this document a one-time electronic Record of Duty requirement and for special eligibility and in the RIA for this final rule, Status (eRODS) software update cost of for the short-haul exception; and FMCSA anticipates that individual approximately $20,000. The change to increased flexibility afforded to drivers, drivers may see a change in their work the 30-minute break requirement will such as increased options with regard to hours (both driving and non-driving) or result in a reduction in opportunity on-duty and off-duty time resulting from vehicle miles traveled (VMT), but this cost, or a cost savings, for motor changes to the 30-minute break final rule will not result in an increase carriers. FMCSA estimates the 10-year requirement and the sleeper berth in freight movement or aggregate VMT. motor carrier cost attributable to the provisions. Aggregate VMT is determined by many changes to the 30-minute break None of the provisions in this final factors, including market demand for provision at ¥$2,814.3 million (or a rule will increase the maximum transportation services. FMCSA does cost savings of $2,814.3 million). As allowable driving time, but may result not anticipate that the changes in this shown in Table 1, FMCSA estimates the in changes to the number of hours final rule, which produce an annual cost total costs of this final rule at ¥$2,366.2 driven, or hours worked during a given savings to carriers of 0.03 percent of million (or $2,366.2 million in cost work shift.1 The flexibilities in this final total trucking revenues of nearly $800 savings) discounted at 3 percent, and rule are intended to allow drivers to billion in 2018, are sufficient to ¥$1,917.5 million (or $1,917.5 million shift their drive and work time to stimulate demand in the freight market, in cost savings) discounted at 7 percent. mitigate the impacts of certain variables but acknowledges that freight loads may Expressed on an annualized basis, this (e.g., weather, traffic, detention times, shift from one carrier or driver to equates to ¥$277.4 million in costs (or etc.) and to take breaks without penalty another. After consideration of the $277.4 million in cost savings) at a 3 when they need rest. FMCSA does not potential impacts, FMCSA has percent discount rate, and ¥$273.0 anticipate that any of these time shifts determined that this final rule will not million in costs (or $273.0 million in will negatively impact drivers’ health. adversely affect driver fatigue levels or cost savings) at a 7 percent discount FMCSA notes that drivers of property- safety. Table 2 summarizes the changes rate. All values are in 2018 dollars. carrying CMVs are still prohibited from in this rule.

TABLE 1—TOTAL 10-YEAR AND ANNUALIZED COSTS OF THE FINAL RULE [In millions of 2018$]

Federal Cost due to and state changes in Total costs— Total costs— Total costs— Year government 30-min break undiscounted (7 percent (3 percent cost provision discount rate) 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.

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

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TABLE 2—REVISED REQUIREMENTS

HOS provision Existing requirement Revised requirement Impacts

Short-Haul ...... Drivers using the short-haul Extends the maximum duty Increases the number of drivers able to take advantage of (100 air-mile radius) excep- period allowed under the the short-haul (150 air-mile) exception. tion may not be on-duty short-haul exception from more than 12 hours. 12 hours to 14 hours. Drivers using the short-haul Extends the maximum radius Potentially shifts work and drive time from long-haul to short- (150 air-mile radius) excep- of the short-haul exception haul exception, or from driver to driver. tion applicable to drivers not from 100 to 150 air-miles. Minimum or no change to hours driven or aggregate VMT. requiring a CDL may not drive beyond the 14th or 16th hour on-duty, depending upon the number of days on duty. Adverse Driving A driver may drive and be Allows a driver to extend the Increases the use of the adverse driving condition provision. Conditions. permitted or required to maximum ‘‘driving window’’ Allows driving later in the workday, potentially shifting for- drive a CMV for not more by up to 2 hours during ad- ward the hours driven and VMT travelled. than 2 additional hours be- verse driving conditions. Allows drivers time to park and wait out the adverse driving yond the maximum time al- This change applies both to condition or to drive slowly through it. This has the poten- lowed. However, this does drivers of property-carrying tial to decrease crash risk relative to current requirements, not currently extend the CMVs (14-hour ‘‘driving assuming drivers now drive through adverse driving condi- maximum ‘‘driving win- window’’) and passenger- tions. dows.’’. carrying CMVs (15-hour No increase in freight volume or aggregate VMT. ‘‘driving window’’). 30-minute break If more than 8 consecutive Requires a 30-minute break Increases the on-duty/non-driving time by up-to 30 minutes, hours have passed since only when a driver has driv- or allow drivers to reach their destination earlier. the last off-duty (or sleeper en for a period of 8 hours No anticipated fatigue effect because drivers continue to be berth) period of at least half without at least a 30-minute constrained by the 11-hour driving limit and would con- an hour, a driver must take interruption. If required, the tinue to receive on-duty/non-driving breaks from the driv- an off-duty break of at least break may be satisfied by ing task. 30 minutes before driving. any non-driving period of 30 Minimal or no change to hours driven or VMT, as the current minutes, i.e. on-duty, off- off-duty break only impacts these factors if the schedule duty, or sleeper berth time. required driving late within the 14-hour driving window. Split-Sleeper A driver can use the sleeper Modifies the sleeper berth re- Allow one hour to be shifted from the longer rest period to berth. berth to get the ‘‘equivalent quirements to allow drivers the shorter rest period. of at least 10 consecutive to take their required 10 Potentially increase the use of sleeper berths because driv- hours off-duty.’’ To do this, hours off-duty in two peri- ers using a berth have additional hours to complete 11 the driver must spend at ods, provided one off-duty hours of driving (by virtue of excluding the shorter rest pe- least 8 consecutive hours period (whether in or out of riod from the calculation of the 14-hour driving window). (but less than 10 consecu- the sleeper berth) is at least No anticipated negative effect on fatigue because aggregate tive hours) in the sleeper 2 hours long and the other drive limits and off-duty time remains unchanged. berth. This rest period does involves at least 7 consecu- Hours driven or VMT may change for an individual driver on not count as part of the 14- tive hours spent in the a given work shift (by increased use of the sleeper berth). hour limit. A second, sepa- sleeper berth. Neither pe- Total hours driven or aggregate VMT would remain the rate rest period must be at riod counts against the same. least 2 (but less than 10) maximum 14-hour driving consecutive hours long. window. 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.

III. Abbreviations and Acronyms ATA American Trucking Associations, Inc. FMCSRs Federal Motor Carrier Safety BLS Bureau of Labor Statistics Regulations 1935 Act The Motor Carrier Act of 1935 CAA Clean Air Act FR Federal Register 1984 Act The Motor Carrier Safety Act of CFR Code of Federal Regulations FRA Federal Railroad Administration 1984 CMV Commercial motor vehicle HOS Hours of service AASM The American Academy of Sleep CRA Congressional Review Act IIHS Insurance Institute for Highway Safety Medicine CVSA Commercial Vehicle Safety Alliance IBT International Brotherhood of Teamsters ABA American Bus Association DOT Department of Transportation ACPA American Concrete Pumping ELD Electronic logging device IRFA Initial Regulatory Flexibility Analysis Association E.O. Executive Order LTL less-than-truckload Advocates Advocates for Highway and eRODS Electronic record of duty status MCSAC Motor Carrier Safety Advisory Auto Safety FAA Federal Aviation Administration Committee ANPRM Advance notice of proposed FMCSA Federal Motor Carrier Safety MCMIS Motor Carrier Management rulemaking Administration Information System

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NAPA The National Asphalt Pavement shall ensure that—(1) commercial motor and extend the latest time a driver could Association vehicles are maintained, equipped, drive after coming on-duty.2 However, National Academies National Academies of loaded, and operated safely; (2) the drivers would still be limited to 11 Sciences, Engineering, and Medicine responsibilities imposed on operators of hours of driving time and required to ND Naturalistic Driving commercial motor vehicles do not NEPA National Environmental Policy Act have at least 10 consecutive hours off- NPPC National Pork Producers Council impair their ability to operate the duty before the start of the next work NPRM Notice of proposed rulemaking vehicles safely; (3) the physical shift. NSC The National Safety Council condition of operators of commercial OOIDA’s petition also included a NTSB National Transportation Safety Board motor vehicles is adequate to enable request that the Agency eliminate the OMB Office of Management and Budget them to operate the vehicles safely . . .; 30-minute break requirement. The OOIDA Owner-Operator Independent (4) the operation of commercial motor organization explained that there are Drivers Association vehicles does not have a deleterious many operational situations where the RODS Record of duty status effect on the physical condition of the 30-minute break requires drivers to stop RFA Regulatory Flexibility Act operators; and (5) an operator of a when they do not feel tired. SBA The Small Business Administration commercial motor vehicle is not coerced SCE Safety critical event by a motor carrier, shipper, receiver, or B. TruckerNation Petition for § Section Rulemaking Secretary Secretary of Transportation transportation intermediary to operate a SBREFA Small Business Regulatory commercial motor vehicle in violation On May 10, 2018, TruckerNation Enforcement Fairness Act of 1996 of a regulation promulgated under this petitioned the Agency to revise the TIA Transportation Intermediaries section . . .’’. (49 U.S.C. 31136(a)(1)– prohibition against driving after the Association (5)). 14th hour following the beginning of the The Coalition National Coalition on Truck This rule is based specifically on work shift.3 As an alternative, the Parking section 31136(a)(2) and, less directly, organization requested that the Agency TL truckload sections 31136(a)(3) and (4). To the prohibit driving after the driver has TRB Transportation Research Board extent section 31136(a)(1) focuses on the TruckerNation TruckerNation.org accumulated 14-hours of on-duty time. TSC Truck Safety Coalition mechanical condition of CMVs, that In addition, TruckerNation requested UDA United Drivers Association subject is not included in this that FMCSA allow drivers to use USDOT The U.S. Department of rulemaking. However, as the phrase multiple off-duty periods of 3 hours or Transportation ‘‘operated safely’’ in paragraph (a)(1) longer in lieu of having 10 consecutive U.S.C. United States Code encompasses safe driving practices, this hours off-duty and eliminate the 30- USTA United States Transportation final rule also addresses that mandate. minute break requirement. Alliance To the extent section 31136(a)(4) C. Additional Petitions for Rulemaking VMT vehicle miles traveled focuses on the health of the driver, the VTTI Virginia Tech Transportation Institute Agency addresses that issue below. As Two additional petitions for IV. Legal Basis for the Rulemaking for section 31136(a)(5), FMCSA rulemaking were received: One from the anticipates that because the rule makes United States Transportation Alliance This final rule is based on the the HOS regulations more flexible, the (USTA) and one from the United Drivers authority derived from the Motor Carrier rule will not increase the risk that Association (UDA).4 The petitions were Act of 1935 (1935 Act) and the Motor drivers will be coerced to operate a not discussed in the ANPRM due to the Carrier Safety Act of 1984 (1984 Act). commercial motor vehicle in violation timing of receipt; however, they were The 1935 Act, as amended, provides of the regulations. reviewed and considered in the that ‘‘The Secretary of Transportation Before prescribing regulations under development of the NPRM. may prescribe requirements for—(1) these authorities, FMCSA must consider The USTA petition proposed an HOS qualifications and maximum hours of their ‘‘costs and benefits’’ (49 U.S.C. rule that would prohibit driving after 80 service of employees of, and safety of 31136(c)(2)(A) and 31502(d)). Those hours on-duty in a work week (instead operation and equipment of, a motor factors are addressed below. of the current limits in §§ 395.3(b) and carrier; and (2) qualifications and 395.5(b)), and allow a 14-hour day for maximum hours of service of employees V. Background driving or other work duties. Drivers’ of, and standards of equipment of, a For an extended discussion of the remaining 10 hours would include 2 motor private carrier, when needed to history of the HOS regulations, please hours of off-duty time, and 8 hours of promote safety of operation.’’ (49 U.S.C. see the NPRM (84 FR 44190, at 44193– sleeper berth time that could be split 31502(b)(1), (2)). 44196, August 22, 2019). Following into two segments, with a minimum of The HOS regulations below concern implementation of the ELD rule and 2 hours per segment. The 80-hour clock the ‘‘maximum hours of service of increased accuracy in HOS tracking, would be reset by 24 hours off-duty. The employees’’ of both motor carriers and FMCSA received feedback from petition is included in the docket motor private carriers, as authorized by members of Congress and other referenced at the beginning of this the 1935 Act. interested parties expressing the need notice. This rule also is based on the for additional flexibility for drivers The UDA proposal maintained the 14/ authority of the 1984 Act, as amended, under the HOS rules. 10 HOS rule; however, the 10 hours off- which provides broad concurrent A. OOIDA Petition for Rulemaking duty could be split into two 5-hour authority to regulate drivers, motor sleeper berth periods. The weekly on- carriers, and vehicle equipment. It On February 13, 2018, the Owner- requires the Secretary of Transportation Operator Independent Drivers 2 Available at https://www.regulations.gov/ (Secretary) to ‘‘prescribe regulations on Association (OOIDA) petitioned FMCSA document?D=FMCSA-2018-0248-1210. commercial motor vehicle safety. The to amend the HOS rules to allow drivers 3 Available at https://www.regulations.gov/ regulations shall prescribe minimum to take an off-duty rest break for up to document?D=FMCSA-2018-0248-0003. 4 Available at https://www.regulations.gov/ safety standards for commercial motor 3 consecutive hours once per 14-hour document?D=FMCSA-2018-0248-2550 and https:// vehicles.’’ The 1984 Act also requires driving window. OOIDA requested that www.regulations.gov/document?D=FMCSA-2018- that: ‘‘At a minimum, the regulations the rest break stop the 14-hour clock 0248-0342.

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duty time, after which driving would be The Agency held two public listening the flexibility to go into an off-duty prohibited, would be 80 hours in an 8- sessions with the first being conducted status rather than addressing detention day period, with a 24-hour restart, at the Great American Truck Show on time issues. Finally, there was concern similar to that proposed by USTA. The August 23, 2019, in Dallas, Texas. The that the Agency should not provide petition is included in the docket second listening session was held at the additional HOS flexibility to high-risk referenced at the beginning of this United States Department of carriers with demonstrated safety notice. Transportation (DOT) in Washington, performance problems and difficulty DC on September 17, 2019.6 Transcripts achieving compliance with the current D. 2018 ANPRM of those listening sessions are available HOS rules. The August 23, 2018, ANPRM (83 FR in the public docket for the rulemaking. In keeping with the intent of its task 42631) requested public comment on to the MCSAC, the Agency did not VI. Stakeholder Engagement Following attempt to influence the committee’s four areas pertaining to the HOS rules: Publication of the NPRM Short-haul operations, the adverse deliberations or express views driving conditions exception, the 30- A. Summary of the Motor Carrier Safety concerning the MCSAC’s report as it minute break requirement, and the Advisory Committee Meeting was being drafted by the committee sleeper berth provision. The ANPRM On August 28, 2019, FMCSA during the public meeting. The Agency also sought public comment on two announced that a public meeting of the used the opportunity to hear the initial petitions for rulemaking relating to the Motor Carrier Safety Advisory reactions of a cross section of HOS rules, one from OOIDA and one Committee (MCSAC) would be held on stakeholders and State partners to the from TruckerNation. September 30, 2019, and October 1, HOS proposals in anticipation of the 2019 (84 FR 45201). As part of the formal written comments that would be E. ANPRM Public Listening Sessions Agency’s efforts to engage its submitted to the rulemaking docket. FMCSA held a series of public stakeholders and State partners in a B. Summary of Comments Presented at listening sessions following the release conversational setting rather than the NPRM Public Listening Sessions of the ANPRM. These were held in waiting until the end of the public FMCSA held two public listening comment period and relying solely on Dallas, Texas, on August 24, 2018; Reno, sessions during the comment period for submissions to the rulemaking docket, Nevada, on September 24, 2018; Joplin, the NPRM as part of the Agency’s efforts the MCSAC was asked to review the Missouri, on September 28, 2018; to engage the public in a conversational NPRM and provide feedback to the Orlando, Florida, on October 2, 2018; setting to get a sense of their initial Agency. The process involved and Washington, DC, on October 10, reactions rather than waiting until the 5 deliberations among the MCSAC 2018. Transcripts of those listening end of the public comment period and members with Agency representatives sessions are available in the public relying solely on submissions to the present to answer questions about the docket for the rulemaking, and are rulemaking docket. During the listening contents of the NPRM and regulatory available to stream at https:// sessions, a panel of Agency officials impact analysis. www.fmcsa.dot.gov/mission/policy/ took in-person public comments and public-listening-sessions-hours-service. In its report issued on October 15, 2019, https://www.fmcsa.dot.gov/ solicited online comments. The panel F. 2019 NPRM advisory-committees/mcsac/task-19-1- also answered questions and clarified hos-report, the MCSAC stated that it parts of the NPRM when requested. FMCSA published an NPRM on Both sessions are available online, and August 22, 2019 (84 FR 44190). This would need more information to understand the potential impacts of the transcripts have been placed in the NPRM requested comment on five 7 proposed changes. Additionally, the docket. Because the same substantive topics: (1) Altering the short-haul MCSAC expressed concern that the comments were also submitted in exception to the record of duty status rulemaking may not provide writing to the docket, FMCSA responds (RODS) requirement available to certain quantitative improvements to safety, to these comments in the responses to CMV drivers, (2) modifying the adverse although the NPRM’s preamble written comments below. driving conditions exception, (3) indicated the rulemaking would In keeping with the intent of the increasing flexibility for the 30-minute increase flexibility without reducing public meetings, the Agency did not break rule by requiring a break after 8 safety. The MCSAC discussed the attempt to influence the participants’ hours of driving time (instead of on- history of certain hours-of-service (HOS) beliefs or opinions. The Agency used duty time) and allowing on-duty/not provisions to understand the Agency’s the opportunity to hear the initial driving periods to qualify as breaks, (4) rationale for the current requirements reactions of interested parties to the modifying the sleeper berth exception to and the reasons for proposing changes, HOS rule in anticipation of the formal allow a driver to spend a minimum of highlighting the need to consider data written comments that would be 7 hours in the berth combined with a and information presented by submitted to the rulemaking docket. minimum 2-hour off-duty period, commenters to the rulemaking docket Throughout the public listening session provided the combined periods total 10 before making any final decisions about participants were encouraged to submit hours and allowing neither period to changes to the HOS rules. The MCSAC written comments to the rulemaking count against the maximum 14-hour considered potential enforcement docket and to include any information driving window, and (5) allowing one challenges associated with the proposed (e.g., research reports or studies, etc.) off-duty break that would pause a truck changes, including discussions that the and data they would like the Agency to driver’s 14-hour driving window. use of the increased flexibility should be consider. at the driver’s discretion. The MCSAC 5 Listening sessions were announced in the also stated that drivers may be 7 Available at https://www.fmcsa.dot.gov/ Federal Register at 83 FR 42631, August 23, 2018; mission/policy/public-listening-session-live-stream- 83 FR 45204, September 6, 2018; 83 FR 47589, pressured by shippers/receivers to use hours-service-drivers https://youtu.be/ September 20, 2018; 83 FR 48787, September 27, MHo6OjoBAfk, https://www.regulations.gov/ 2018, and 83 FR 50055, October 4, 2018. The 6 Listening sessions were announced in the document?D=FMCSA-2018-0248-8166, and https:// listening session scheduled for September 14, 2018 Federal Register at 84 FR 43097, August 20, 2019, www.regulations.gov/document?D=FMCSA-2018- in Washington, DC was canceled and rescheduled. and 84 FR 45940, September 3, 2019. 0248-8167, last accessed February 2, 2020.

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Short-haul. Many commenters agreed research, the Agency created a list of adversely affecting driver alertness. with the proposed extension of the those studies for systematic review. However, Safety for the Long Haul also workday to 14 hours. Several FMCSA notes that while conducting argued that the ‘‘ND [Naturalistic commenters requested clarification of HOS rulemakings over the past 25 years, Driving] Mixed Safety-Critical Event’’ how the proposed changes would the Agency has examined many studies (SCE) method for assessing fatigue, as interact with each other, and about ELD on the effects of time on task on fatigue, referenced in the Agency’s NPRM, is use. Questions about the question of and of fatigue on safety. Some of the flawed. OOIDA commented that the returning to their normal work reporting studies are based on laboratory proposed rule would improve trucker location were asked. experiments with closely controlled safety, as drivers know best when they Adverse Driving Conditions. Most inputs, while others are derived from need to take a break or whether driving commenters spoke positively of the technical data generated by drivers conditions are unsafe. proposed changes to the adverse driving operating instrumented trucks. Still A few industry associations conditions rule. Several requested that others involve extensive surveys of commented that current HOS rules have the Agency clarify the criteria for CMV drivers. The number of subjects or contributed to increases in crashes acceptable use of this exception. Many survey respondents varies enormously, involving trucks. One association commenters asked for expansion of the from a few dozen to many thousands. commented that current HOS rules may definition of ‘‘adverse driving None of these studies were considered pressure drivers to rush or continue conditions’’. Commenters also wanted as representative of every aspect of the driving despite being fatigued. They information regarding the impact on enormously varied motor carrier believe the proposed changes would total driving-day and cumulative hours. industry. provide greater flexibility for drivers to 30-Minute Break. Most commenters The FMCSA acknowledges that no take breaks from the driving task. Several industry associations and requested that the 30-minute break single study that it previously reviewed companies from the agricultural, requirement be eliminated, arguing that or referenced in responses to the 2019 beverage, construction, concrete, forest it has a negative impact on safety by NPRM addresses all of the proposed products, packaging and recycling, and forcing drivers to stop when they did changes. The results of the various livestock sectors of the motor carrier not need a break and to skip breaks studies are not uniform, rarely industry stated that the proposed rule when they need to stop because they converging in a straightforward conclusion about specific work-rest would benefit their members. cannot afford to lose the drive time. The National Motor Freight Traffic Other commenters provided many schedules. FMCSA therefore considered the wide range of studies, including Association, Inc. commented that the suggestions for additional flexibility proposed rule would help ‘‘less-than- concerning the 30-minute break. those provided or cited by commenters, to draw conclusions about the truckload’’ drivers, who have relatively Split-Sleeper Berth. Many regular schedules but who are commenters asked for clarification of overarching HOS principles based on its own experience and expertise and the susceptible to poor traffic conditions; the proposed sleeper berth provisions. they can usually obtain adequate rest Some expressed concern about how to extensive, but inconclusive, body of evidence currently available. and complete their work safely. Another calculate sleeper berth time under the industry association generally proposed revisions, especially in Procedural Matters. A few commenters addressed procedural supported the proposed rule for its relation to the 3 hour pause. Others different treatment of long-haul, asked for other splits. matters regarding the proposed rule. Three requests for an extension of the regional, and short-haul trucking. Split-Duty Pause. Commenters public comment period were received. Several construction industry primarily requested clarification FMCSA extended the public comment associations supported the proposed regarding which operations would be period from October 7 to October 21, rule but requested that the construction able to use the proposed 3-hour pause, 2019.8 industry be exempted from HOS and expressed concern about abuse of regulations. the provision. 2. General Comments on the FMCSA Response: FMCSA agrees that Rulemaking C. Summary of the Written Comments to the relief provided through this the NPRM; FMCSA Responses Agreement with Proposed Revisions. rulemaking will benefit some of the Approximately 530 submissions industries or distinct operations (e.g., The NPRM comment period closed on expressed general agreement with the propane delivery) currently seeking October 21, 2019. The Agency proposed changes. Many of these relief through exception or other means. considered late filed comments to the included individuals and drivers who As for industry-specific exceptions or extent practicable and, as of November stated their general agreement with the regulatory relief, it should be noted that 27, 2019, had received a total of 2,874 proposal without providing substantive FMCSA has already granted exemptions submissions to the docket. rationale. Numerous commenters stated from specific HOS requirements to various industry segments and motor 1. Agency Approach To Reviewing that the proposed changes: carriers, including some related to the Research Cited in the Written • Increase flexibility; • regulations addressed in the NPRM. The Comments Improve highway safety; • Provide drivers with greater control exemptions were granted through a Methodology of Comment Evaluation. when and where to take rest breaks; public notice-and-comment process Because of the level of Congressional • Increase efficiency and authorized by 49 U.S.C. 31315, with and public interest in this HOS productivity; and, implementing regulations provided in rulemaking, FMCSA shares with • Reduce driver stress and fatigue. 49 CFR part 381. interested parties its methodology for Safety for the Long Haul, Inc. and Three exemption applications analyzing almost 3,000 submissions to OOIDA stated that the proposed concerning an extension of the short- the rulemaking docket. Approximately revisions would increase driver haul duty day from 12 to 14 hours have 200 studies were cited in written flexibility and efficiency without already been granted to the following: comments to the NPRM. To ensure that (1) Waste Management, Inc.; (2) the FMCSA did not overlook any relevant 8 84 FR 49212, September 19, 2019. American Concrete Pumping

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Association (ACPA); and (3) the commenters articulating variations on reinterpretation of research and often in National Asphalt Pavement Association this theme were the National direct contradiction of earlier Agency (NAPA). In addition, NAPA requested Transportation Safety Board (NTSB), the findings and statements. and received an exception from the 30- National Safety Council (NSC), the The Institute for Policy Integrity urged minute rest break provision, allowing its American Academy of Sleep Medicine FMCSA to analyze each proposed members to use 30 minutes of ‘‘waiting (AASM), Advocates, Road Safe America, provision’s effect on driver health, time’’ or ‘‘attendance time’’ to satisfy the Senator Patty Murray, the International including driver morbidity, chronic break requirement. Brotherhood of Teamsters (IBT), and the health conditions, obesity, and exposure Others who have requested and Truck Safety Coalition (TSC). to diesel exhaust. Another commenter received similar exemptions from the Representative Greg Steube argued that recommended that FMCSA consider 30-minute rest break include the the current proposal does not do enough amending the proposed changes to National Pork Producers Council to fully address safety and logistics include screening for sleep problems, (NPPC) for drivers transporting issues. The NSC, Advocates, IBT, and such as Obstructive Sleep Apnea, and livestock, ACPA, the American TSC cited data about the importance of then prescribing practical solutions if Trucking Associations, Inc. (ATA) for healthy sleep patterns and the safety the driver is diagnosed with a sleep placarded hazardous materials loads, risks of fatigued driving. Road Safe problem. the Department of Energy for special America and Senator Murray argued ATA expressed conditional support category (often nuclear) shipments, the that the proposed rule would increase for some provisions of the rule. IIHS, National Tank Truck Carriers, the the likelihood that motor carriers would ATA, and a few industry associations Oregon Trucking Associations, the coerce drivers into working while argued that more research would be Specialized Carriers and Rigging fatigued, creating unsafe road needed before the rule or individual Association, and the U.S. Department of conditions for drivers and other provisions could be adequately Defense’s Military Surface Deployment motorists. The Institute for Policy evaluated. Trucking Solutions Group and Distribution Command. Integrity argued that the proposed rule provided conditional approval if This final rule does not include is too focused on flexibility for drivers FMCSA would wait for the full effects industry-specific relief (i.e., regulatory and that FMCSA should consider the of the ELD mandate on the industry to exceptions). However, FMCSA notes effects of the proposed rule on drivers’ occur before undertaking a new certain industries may find their health. rulemaking. concerns about HOS addressed by this Representative Peter DeFazio warned FMCSA Response: FMCSA rule. As noted above, the requirements that the proposed rule significantly acknowledges commenters concerns. concerning applications for exemptions expands on-duty time for truck drivers, However, the Agency concludes that the or requests for waivers are described in deprives drivers of true rest, and passes changes adopted today will not result in 49 CFR part 381, and interested parties more of the inefficiencies and the adverse safety consequences they that continue to believe that additional uncertainties of goods movement on to described. None of the revisions in this flexibility is needed should review part drivers who have little economic rule allow truck drivers additional 381 to determine whether an exemption leverage. Congressman DeFazio also driving time beyond the 11-hour limit application may be warranted. The argued that the changes may seem provided in the current regulations (or Agency notes that such requests should modest, but instead represent a the 13-hour limit provided with the consider the statutory requirement that ‘‘substantial backslide’’ in a 24-year current adverse driving conditions the exemption must be likely to achieve process to update on-duty rules and exceptions). Except for the adverse driving conditions provision, none of a level of safety equivalent to or greater reduce fatigue among commercial the revisions allow drivers to operate a than the level of safety provided absent drivers—which has been CMV after accumulating 14 hours of on- the exemption. ‘‘painstakingly’’ debated by FMCSA, Disagreement with the Proposed Congress, and the courts. However, duty time during a work shift. Changes to the HOS Requirements. many other commenters felt strongly Consistent with the Agency’s rationale Approximately 215 commenters that the additional flexibility would for adopting the 14-hour rule, none of expressed general disagreement with the minimize the stress on a driver that the revisions allow the use of multiple proposed rule. Numerous commenters, results under the current rules. or intermittent off-duty breaks to extend the work-shift. Also, the weekly mostly individuals, opposed the rule The Small Business in Transportation limitations under the 60/70-hour rules without further explanation. Many of Coalition expressed concern that the concerning the maximum number of on- these commenters, including proposed rule would be difficult to duty hours that may be accumulated individuals and drivers, stated that the enforce and that drivers needed greater before driving is prohibited remain proposed rule: flexibility. Another commenter argued • Enables companies to abuse drivers; that free market forces will correct the unchanged. Furthermore, none of the • Fails to promote safety; challenge of long detention times at revisions relieve motor carriers and • Does not provide enough flexibility; shippers’ and receivers’ facilities, and drivers of the explicit prohibitions • Adds confusion when looking at the that the proposed rule would be against: (1) Operating commercial motor provisions overall; counterproductive in resolving this vehicles while ill or fatigued, or (2) • Decreases efficiency and issue. coercing drivers to violate Federal safety productivity; and, Senator Murray claimed the proposed rules. Therefore, the basic parameters of • Does not address the lack of parking rule contravened FMCSA’s mandate by the HOS rule that are essential to safety and problems associated with ‘‘pay to unreasonably extending drivers’ work remain unchanged. park’’ schemes. hours, eliminating drivers’ right to Regarding the extension of the driving Many of the commenters who sufficient rest, and threatening the window to 16 hours during ‘‘adverse opposed the rule argued that the safety of drivers and the public. driving conditions,’’ drivers will no proposed rule would contribute to the Advocates asserted that FMCSA’s longer need to stay on the road during prevalence of driver fatigue and threaten reasoning for each of the proposals in such conditions to avoid the impending public safety through an increase in the NPRM is baseless, closure of the previous 14-hour driving fatigue-related crashes. Among the misrepresentative, or based on incorrect window. Therefore, the added flexibility

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will not decrease safety during adverse in the last 15 years as a result of the apnea is a condition for which there are driving conditions. tightened EPA standards discussed in effective treatments available, and Regarding the proposal to allow the 2005 rule. The incremental changes drivers who follow the prescribed drivers to pause the 14-hour driving adopted in this final rule, though useful treatment regime after being diagnosed window by taking up to 3 hours off- to motor carriers and drivers, do not may be medically certified. duty, the Agency intended to give change the conclusions explained in the Problems caused by detention time drivers the ability to adjust their 2005 final rule. As pointed out in the and parking shortages have been operations such that they could defer 2005 HOS final rule (70 FR 49978, 4983, apparent for many years. However, work, especially driving time, until the August 25, 2005), attempts to create a these issues are beyond the scope of this conditions were conducive to greater dose-response curve for the effects of rulemaking. efficiency. The NPRM considered that exposure to diesel exhaust, for example, The purpose of this rule is to enhance the pause could have been as short as have not produced clear-cut results. the operational flexibility of drivers and 30 minutes or as long as 3 hours, Such an attempt would be even more carriers, without compromising the provided the driver was relieved of all difficult for the incremental HOS Agency’s statutory safety mission. Many responsibility for performing work, with changes promulgated today. commenters stated that the current HOS the assumption being that pauses up to However, based on the current requirements are too restrictive and that 3 hours would allow drivers to obtain scientific information and its own their removal would not adversely affect rest during the extended window. experience with Hours of Service safety; but those assertions are Drivers would have the opportunity to regulation, FMCSA concludes that the supported only with personal take a meaningful rest break during the changes made by this final rule are anecdotes. While stakeholders’ personal work shift but still be required to have safety- and health-neutral. For example, experiences inform the Agency’s 10 consecutive hours off duty at the end the expansion of the short-haul workday decision-making process, further of the work shift. from 12 to 14 hours simply gives short- evidence is generally required to As explained elsewhere in the haul carriers the same driving window support changes to the FMCSRs. preamble, FMCSA has decided that that other carriers have used for many Neutral Comments and Comments on further information is needed years. The 14-hour HOS limit now HOS-Related Issues Beyond the Scope concerning the potential for unintended applicable to both short- and long-haul of the NPRM. Approximately 1,460 consequences associated with the pause carriers is consistent with the statutory comments, mostly from individuals and and therefore has not included that obligation to protect driver safety and drivers, provided mixed, neutral provision in this final rule. health (49 U.S.C. 31136(a)(2), (4)), as feedback on the proposal. In addition, As to driver health, the Agency shown by the extensive discussion in some drivers and individuals addressed acknowledges that the effect of specific the 2005 final rule (70 FR 49978, 49982 certain provisions of the NPRM while regulatory changes on driver health is et seq.). Moreover, FMCSA requires that remaining silent on other provisions. difficult to evaluate. First, most health interstate drivers subject to the physical Some individual commenters and conditions have multiple contributing qualifications standards under 49 CFR drivers provided conditional support factors and are discernible only over part 391 obtain proof of their physical while others neither provided an extended periods. Second, a cause-and- qualifications from a licensed healthcare opinion nor suggested alternatives to the effect relationship between a rule and a professional listed on the Agency’s NPRM. given health outcome is difficult to National Registry of Certified Medical Approximately 630 submissions establish. Driver health issues were Examiners. These healthcare concerned aspects of the HOS rules that addressed extensively in the 2005 final professionals must be licensed by the were not covered in the NPRM. rule [70 FR 49978, 49982–49992, August State, complete a training program Numerous individuals and drivers made 25, 2005]. The preamble noted that concerning FMCSA’s physical the following types of suggestions: ‘‘FMCSA has reviewed and evaluated qualification standards, and pass a test • Eliminate the 14-hour window; the available and pertinent information concerning the Federal requirements. • Eliminate or revise the 34-hour concerning driver health, with emphasis These Medical Examiners are likely to restart provision; on chronic conditions potentially provide some level of education at the • Eliminate the 70-hour rule associated with changes from the pre- time of the exam if drivers exhibit prohibiting driving after the driver has 2003 and 2003 rules, to this final rule. specific health issues. accumulated 70 hours of on-duty time The research on CMV driver health falls As to obstructive sleep apnea, the in 8 consecutive days; into several broad categories: (1) Sleep Federal Motor Carrier Safety • Eliminate the use of ELDs; loss/restriction, (2) exposure to exhaust, Regulations (FMCSRs) do not require • Allow drivers to develop their own (3) exposure to noise, (4) exposure to medical examiners to screen CMV drive/rest schedules; vibration, (5) cardiovascular disease, (6) drivers for sleep disorders, and the • Exempt small businesses from the long work hours, and (7) shift work and Agency does not provide criteria for HOS rules or create separate rules gastrointestinal disorders’’ (70 FR determining whether an individual applicable to small fleets; 49978, 49982). should be referred for a sleep study • Extend driving time from 11 to 12 The Agency concluded that the 2005 evaluation. FMCSA relies on Certified or 13 hours; rule would not have any effect on those Medical Examiners who have proper • Address the amount of time drivers potential health issues. That discussion licensure, training, and medical are held up at shippers or receivers; remains applicable today with only a knowledge to apply independent • Address the lack of parking and few changes. For example, FMCSA medical judgment based on the ‘‘pay to park’’ schemes; and, noted in 2005 that attempts to create a individual’s complete medical history, • Drivers should be paid hourly dose-response curve for the effects of including risk factors, and clinical instead of by the mile. exposure to diesel exhaust had not findings from the physical examination Multiple individual commenters and produced clear-cut results (70 FR when making medical determinations drivers briefly summarized alternative 49983). Such an attempt would be even concerning screening, testing, and or ‘‘simplified’’ HOS requirements that less useful today because exposure to treatment, for obstructive sleep apnea. they would prefer (e.g., maximum 9- diesel exhaust has declined significantly FMCSA notes that obstructive sleep hour drive time in a 12-hour workday;

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12 on-duty/12 off-duty; 13 hours of • Improvements to rest areas; within 14 hours of the beginning of the drive time in a 24-hour workday; 14- or • CMV driving speeds; work shift. 16-hour total workday; 77 hours in 8 • The impact of certain States’ laws The NPRM also sought additional days, etc.). on interstate commerce; and, information and data on the impacts of FMCSA Response: FMCSA • The ability of drivers to participate expanding the short-haul exception acknowledges the concerns of in public listening sessions. provision, in part to assess its potential commenters that opted not to take a FMCSA Response: While the topics costs and benefits. Specifically: position on certain aspects of the raised by these commenters are • How would this change impact the proposal. Each aspect of the NPRM important, they do not relate to the motor carriers’ ability to enforce the addresses a piece of a complex puzzle specific revisions proposed at the NPRM HOS rules? What enforcement concerning the flexibility needs for stage of the rulemaking or adopted difficulties may arise from expanding different segments of the transportation through this final rule. both the time and distance industry. For certain segments of the The Agency nevertheless requirements? industry, a single element of the NPRM acknowledges commenters’ concerns • Would drivers drive farther or would provide all the flexibility about these issues and has acted in longer in the driving window under the necessary while other segments may several of these areas. For example, the short-haul exception? Would this be benefit from two or more elements. This Agency launched ‘‘Our Roads, Our different than these loads being hauled final rule is intended to provide Safety,’’ a national safety campaign by drivers complying with the ELD reasonable adjustments to the HOS shaped to raise public awareness about requirements to allow for increased requirements? sharing the road safely with large trucks • flexibility without decreasing safety. and buses. Would the elimination of the 30- FMCSA also acknowledges On the topic of truck parking, FMCSA minute break requirement for drivers commenters’ interest in changing major is an active participant in the National that are potentially driving later in their provisions of the HOS requirements. Coalition on Truck Parking (the duty period impact safety? • However, these issues are beyond the Coalition). The U.S. Department of What cost savings are expected scope of this rulemaking. In some of Transportation (USDOT) and several from not having to comply with the ELD these cases such as an extension of the stakeholder organizations established requirements? driving time limits or the elimination of the Coalition in August 2015 as a In addition, some commenters to the the 70-hour rule, additional research response to a documented need for ANPRM requested that drivers using the would be needed to support changing truck parking solutions. Stakeholders short-haul exception be allowed to end the basic parameters of the HOS rules engaged in the Coalition represent the their work shift at a different location that have been previously determined to trucking industry, commercial vehicle than the one from which they were be important in minimizing the risk of safety officials, State departments of dispatched. FMCSA therefore included fatigue. And several of the issues raised transportation (DOTs), and commercial a request for public comment about this by commenters are beyond FMCSA’s truck stop owners and operators. suggestion, including which segments of statutory authority (e.g., driver Finally, about the inspection of trucks the motor carrier industry would be compensation, elimination of ELDs). crossing the U.S.-Mexico border, in each impacted by it and whether it would In response to commenters’ concerns of the past 4 years FMCSA and its State have an adverse effect on safety, or lead about third parties such as shippers and partners conducted more than 250,000 to operational changes such as increased receivers forcing drivers to violate HOS inspections of commercial motor driving time per trip or driving in the rules or creating an environment where vehicles operated by Mexico-owned or 12th and 13th hour after coming on- drivers are unable to take advantage of Mexico-domiciled motor carriers.9 duty. the work time allowed, the Agency Commenters Supporting an Increase 3. Short-Haul Operations issued a final rule in 2015 prohibiting to the 12-Hour Limit for Short-Haul motor carriers, shippers, receivers, and NPRM. The NPRM proposed Operations. Approximately 240 transportation intermediaries from extending the maximum allowable submissions supported the proposal to coercing drivers to operate CMVs in workday for property-and passenger- extend the maximum allowable violation of certain FMCSA regulations, carrying CMV drivers under the workday under the short-haul exception including the HOS regulations in 49 § 395.1(e)(1) short-haul exception from from 12 to 14 hours. Many of the CFR part 395 (See 49 CFR 390.6). In 12 to 14 hours to correspond with the commenters, including drivers and addition, the Occupational Safety and 14-hour limit for property-carrying individuals, stated that the additional Health Administration in the drivers in § 395.3(a)(2). The Agency flexibility would be helpful or would Department of Labor has authority proposed extending the existing positively impact them or their under 49 U.S.C. 31105 to take remedial distance restriction under this provision company. Some of the specific benefits action against employers who have from 100 air-miles to 150 air-miles to be commenters mentioned included: discharged or discriminated against consistent with the radius requirement • Extending the short-haul provision employees who refuse to violate the for the short-haul exception applicable to 14 hours would reduce the burden of FMCSRs. to drivers of CMVs not requiring a CDL switching to logbooks and installing Comments on Issues and Industry (§ 395.1(e)(2)). Under the proposal, truck ELDs; Concerns Separate from the HOS Rules. drivers would continue to be limited to • The provision would allow Approximately 30 submissions 11 hours of driving time, and passenger dispatchers to schedule loads and routes addressed topics that involved safety carrier drivers to 10 hours of driving more efficiently; but were separate from the HOS time. FMCSA proposed requiring all • Short-haul drivers should be requirements. The topics included: CMV drivers using the § 395.1(e)(1) • allowed to work as many hours as over Education for the public on safe exception to complete their workday driving procedures around trucks; the road drivers; • • The added flexibility will increase Inspection of trucks crossing the 9 Available at https://ai.fmcsa.dot.gov/ U.S. border; SafetyProgram/MexicanCarriers.aspx, last accessed safety because short-haul drivers will be • Public respect for truck drivers; February 5, 2020. under less pressure to ‘‘beat the clock;’’

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• The proposed changes to the HOS rules and make the standards more drivers report to work and are released exception would reduce compliance consistent for all drivers. from work. The Agency may review burdens; Many commenters, including carriers’ records to determine whether • The extra time will help improve individuals, drivers, motor carriers, and drivers have traveled to locations transportation productivity efficiency, industry associations, stated that this beyond the distance limits. such as truck utilization and driver proposed change would allow many Regarding the issue of more uniform optimization, thereby reducing costs; more drivers to qualify for the short- enforcement of the short-haul and, haul exception. A few commenters, provisions based on the changes in this • Extending the short-haul provision including Transco, Inc. and the National final rule, FMCSA anticipates that the from 12 to 14 hours would not Limousine Association, stated that the number of associations, organizations negatively impact safety. provision would allow more frequent and companies seeking exceptions via Many commenters, including OOIDA, use of the exception and include the 49 CFR part 381 provisions will the American Bus Association (ABA), benefit of not having to complete a considerably decrease and enforcement the U.S. Chamber of Commerce, driver’s daily graph grid log or use an agencies will not have to monitor the trucking industry associations and ELD. Others stated that the proposal list of active exemptions to avoid errors motor carriers expressed support for would enable more drivers to go home in citing carriers operating under an extending the 12-hour short-haul at night rather than sleeping in hotels, exemption. Because most of the exception to 14 hours. These improving not only rest, safety, and exemptions are granted to groups or commenters believed the change would productivity, but also saving the associations on behalf of their motor afford drivers greater flexibility by company on costs. carrier members, enforcement officials allowing them more time to complete FMCSA Response: The Agency agrees need to understand the scope of the trips during peak periods, more non- with those commenters who believe the exemption so that when commercial consecutive driving hours, and a larger proposed changes to the current short- vehicle inspections are performed, the window to return home if drivers haul provisions would provide enforcement official can make the encounter unexpected delays during increased flexibility for both motor determination whether the exemption their shift. Several associations carriers and drivers who utilize the covers the specific driver or carrier representing specific segments of the exception. FMCSA continues to believe being inspected, and how the remaining trucking industry and motor carriers the extension of both the 12-hour limit HOS requirements are to be applied to reiterated that the increased flexibility to 14 hours, and the 100 air-mile radius that driver.10 Several of these would positively impact them, their to 150 air miles will provide the applications for exemption have been members, or their segment, including increased flexibility for drivers without granted by the Agency in the past, agricultural operations supporting aerial compromising overall safety. including some that extended the 12- crop dusting, motorcoach businesses, The Agency emphasizes, however, hour short-haul limit to 14 hours. towing and recovery companies, that the changes to the short-haul Commenters Seeking Flexibility retailers, beverage producers and exception finalized in this final rule Beyond the Proposed Revisions to the distributors, construction and allow neither additional drive time Short-Haul Time Limits. An individual manufacturing businesses, and propane during the workday, nor driving after said the provision is ‘‘90% good’’ but gas delivery businesses. A few the 14th hour from the beginning of the would not help the sub-class of short- commenters remarked that the proposed workday. Because the extension of the haul drivers that primarily do ‘‘drop and change would provide small businesses air-mile radius and the workday does hook.’’ 11 Another commenter said partial relief from the chronic shortage not extend the maximum allowable short-haul drivers should be allowed a of CDL drivers nationwide because the driving time or the 14-hour window, 16-hour day. Another individual additional 2 hours of on-duty time per FMCSA does not anticipate adverse familiar with oilfield operations said shift would increase the productivity of impacts on safety. that the short-haul exception should drivers already on the payroll. FMCSA also agrees with commenters allow up to 15 hours of driving time, Multiple commenters, including who stated that the proposed changes to since oilfield workers must often be on- OOIDA, the Commercial Vehicle Safety the short-haul exception this final rule site for 12 hours. TruckerNation Alliance (CVSA), and some motor would allow more drivers to be reasoned that, while expanding the carriers and drivers, stated that consistently eligible for the short-haul short-haul exception to 14-hours would extending the limit for the short-haul exception. Thus, they will be excluded create a uniform duty day for all CMV exception from 12 to 14 hours would from the requirement to take a 30- drivers and decrease unnecessary align the exception with existing minute break or prepare daily RODS, complexity, reducing the complexity for requirements for long-haul, regional, potentially with an ELD if the carrier drivers may increase the probability of and over the road drivers and thereby exceeded the short-haul limits more inconsistent enforcement actions. simplify enforcement and improve than 8 days within a 30-day period. FMCSA Response: The Agency compliance. A few commenters, Carriers now have the flexibility to meet believes this final rule provides an including the U.S. Chamber of existing and future market demands for appropriate amount of flexibility while Commerce and industry associations, services within a larger area that could ensuring that safety is not compromised. remarked that for companies that be covered within a 14-hour duty day. As noted above, none of proposals manage a variety of trucking operations, Services may now be provided more included in the NPRM and adopted the proposed change would facilitate efficiently (i.e., not incurring the costs of today allow truck drivers additional compliance because more operations preparing RODS and retaining would follow the same set of rules supporting documents for the days 10 In the calendar year 2018, FMCSA received 6 making fleet management easier, and drivers did not satisfy the short-haul exemption requests regarding the short-haul reducing the possibility of inadvertently limits) without compromising safety. provision. The majority concerned an extension violating the rules. Some commenters, FMCSA notes that short-haul carriers from 12 hours to 14 hours. 11 This is a term that refers to when a driver drops including several motor carriers, said must maintain accurate records the trailer and simply picks up a new trailer; in that the proposal would remove the concerning drivers’ schedules. These other words, a delivery where no loading or need for multiple exemptions from the time records must document when unloading is required.

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driving time beyond the 11-hour limit increased driving window of the short- consecutive-day period without an ELD, provided in the current regulations (or haul exception: provided they keep paper RODS for the 13-hour limit provided with the • How will FMCSA monitor and keep those days. If they are willing to use an current adverse driving conditions carriers from allowing abuse and driving ELD, these drivers could simply operate exceptions). Except for the adverse over the 11-hour driving limit? under the same HOS limits as regional driving conditions provision, none of • How will FMCSA protect against and long-haul drivers. Whether to do so the revisions allow drivers to operate a ‘‘stacking’’ (allowing a 19-hour day by is a business decision on the part of the CMV after accumulating 14 hours of on- combining the 2-hour adverse driving motor carrier. The extension to 14 hours duty time during a work shift. condition exception and a 3-hour will relieve some short-haul drivers of Consistent with the Agency’s rationale ‘‘pause’’ to the 14-hour window)? the pressure to drive at a higher speed • for adopting the 14-hour rule, none of Why are trucks without sleeper to finish their 11 hours of driving time the revisions allow the use of multiple berths not allowed to run 12 hours or and return to their duty reporting or intermittent off-duty breaks to extend stop the clock during pickup or location within 12 hours. delivery? FMCSA also acknowledges the the work-day which would in turn • increase the risk of driver fatigue. Why did FMCSA not consider a comments about monitoring compliance Based upon the many research studies straight 13/16-hour day for all CMV and enforcement challenges under the the Agency has reviewed over the past operators? short-haul provision. However, the A few commenters, including the 25 years of conducting HOS-related techniques currently used to enforce the Trucking Alliance, industry rulemakings, the Agency believes it HOS requirements for short-haul drivers associations, and motor carriers, would be inappropriate to consider will be the same whether the maximum indicated they would support the amending the rules to allow more than work shift is 12 or 14 hours. FMCSA increase from 12 to 14 hours only if an 11 hours of driving time, without taking does not agree that the changes to the ELD were required to track a driver’s the required 10 consecutive hours off- short-haul provision would make HOS. The Trucking Alliance argued that duty (property carriers). Aside from discovery of violations impossible or having ELDs on board all trucks would adverse driving conditions, it would foster noncompliance with the ensure compliance, improve highway also be inappropriate to allow a 16-hour underlying HOS requirements. safety, and reduce the risk of large truck driving window, during which drivers As noted above, employers must crashes. ATA stated that, while they maintain and retain accurate time could operate a CMV after accumulating supported the proposed expansion of records for a period of 6 months 14 hours of on-duty time during a work the short-haul exception, they were showing the time the duty period began shift. concerned that it would increase the and ended, and the total hours on-duty Finally, the Agency does not number of drivers who would no longer each day in place of RODS anticipate that enforcement difficulties be required to use an ELD, and even that (§ 395.1(e)(1)(v)). will arise from the expansion of on-duty ELDs would be removed from some Expanding the duty period to 14 hours permitted under the exception. vehicles. Schneider National Carriers, hours, without increasing the existing The employer must still maintain and Inc. stated that while ‘‘neutral’’ with 11 hours of driving time, will allow retain accurate time records for a period respect to the proposed 14-hour day, it short-haul drivers to spend time with of 6 months showing the time the duty favored an ELD requirement to deter customers, respond to changes in period began and ended, and the total abuse. market demand, such as peak holiday hours on-duty each day in place of Citing results of a membership survey, delivery times, and reduce the RODS (§ 395.1(e)(1)(v)). ATA concluded that the number of administrative burden of determining Commenters Opposed to Increasing motor carriers that would become how often a driver has gone beyond 12 the 12-Hour Limit for Short-haul exempt under the proposed short-haul hours or 100 air-miles in any 30- Operations. Some individuals and exceptions would be ‘‘small but not consecutive-day period. Because the drivers raised arguments against the insignificant.’’ changes to the short-haul exception will proposal: An individual said FMCSA should be not extend the workday beyond the • The provision would allow more specific regarding which drivers current 14-hour driving window, companies to force drivers to extend would qualify for the proposed short- FMCSA has no reason to believe that the their workdays. haul exception changes. revised rule will adversely impact • Short-haul drivers should be The California Highway Patrol safety. limited to a 12-hour workday; any more warned that an expansion of the short- Neither of the changes to the short- would increase driver fatigue and be a haul exception to 14 hours would make haul exception increase the detriment to safety. impossible discovery of 11-hour opportunities to falsify time records. If • Short-haul drivers can already run violation(s) by enforcement personnel, anything, the changes remove pressure a 14-hour day, so the proposal would foster noncompliance, and would not be from short-haul drivers to ‘‘beat the just make HOS regulations more prudent in large States. clock.’’ Furthermore, the Agency agrees difficult to enforce. FMCSA Response: The Agency with ATA and has retained the Advocates argued that the proposed acknowledges commenters’ concerns requirement for drivers to return to the changes to the short-haul exception about extending the driving window. normal work reporting location at the would extend drivers’ duty hours, However, the Agency emphasizes that end their work shift, rather than having extend driving hours later into the duty the HOS requirements for drivers using the option of ending the shift at a period, increase the number of carriers RODS allow up to 11 hours of driving different location. This will help to operating under the exception, and time within a 14-hour window, ensure compliance with the short-haul thereby increase the number of drivers following 10 consecutive hours off-duty. exception to the RODS requirement. not provided adequate rest breaks, and Short-haul drivers who exceed the The FMCSA acknowledges impair enforcement. current 12-hour limit for returning to commenters’ overall concerns that an A number of commenters, including the normal work-reporting location can expansion of the short-haul provision some individual commenters and already operate using the 14-hour (both the extension of the time and drivers, asked questions about the window for up to 8 days in any 30- distance limits) would result in fewer

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motor carriers and drivers being are included in the ELD mandate . . ., but manufacturers and distributors, required to use ELDs. However, this the marginal costs (ELD costs plus construction, manufacturing, and compliance costs) of including these fact, in and of itself, does not mean that 1 propane gas delivery. The U.S. Chamber operations are more than 3 ⁄2 times higher of Commerce commented that extending the carriers in question would than the marginal benefits.... [Short-haul] experience increased levels of non- drivers who do not use RODS, have better the radius to 150 air-miles would compliance with the applicable HOS HOS compliance, and much lower crash risk provide flexibility for carriers to use the rules or increases in crash involvement. from HOS noncompliance. For the [short- short-haul provision for runs that are Enforcement of the short-haul provision haul] non-RODS subgroup, FMCSA’s analysis farther from their work reporting during vehicle inspections has always indicates that ELDs are not a cost-effective location and may be currently managed presented a challenge because officials solution to improving the HOS compliance of as a long-haul run. do not have access to supporting [short-haul] non-RODS drivers. This result is Many commenters said that the consistent with that of past ELD analyses.’’ documents, specifically records proposed extension would remove the indicating when the driver began the In consideration of the above need for several HOS exceptions that work day. However, enforcement at a discussion, FMCSA believes the have already been issued and make terminal or the principal place of decrease in the number of carriers using standards more consistent for all business generally provides a better ELDs will be limited because the change drivers. Several commenters, including opportunity to investigate compliance impacts only the CDL holders who CVSA, and some motor carriers and with the hours-of-service requirements. currently travel between 100 and 150 drivers, stated that expanding the radius At such time, enforcement personnel air-miles from the normal work- from 100 to 150 air-miles would align will continue to focus on (1) the time reporting location, and return to that the short-haul exception with existing between the driver reporting to the location within 12 to 14 hours each day. HOS requirements and thereby simplify normal work-reporting location and the And, the Agency continues to believe enforcement and improve compliance. time the driver is released from work, ELDs are not a cost-effective solution to The U.S. Chamber of Commerce and (2) the maximum distance the ensuring HOS compliance for these remarked that, for companies that driver traveled from the normal work- drivers because, as discussed below, manage a variety of trucking operations, reporting location. The enforcement short-haul operations are essentially the proposed change would facilitate official could request certain records self-limiting due to the nature of the compliance because more operations that would identify where the driver operations and requirement to return to would follow the same set of rules, in traveled and the time spent at those the reporting location. turn making fleet management simpler locations. Because of the inherent Commenters Supporting the and reducing the likelihood of nature of short-haul operations (e.g., Expansion of the 100 Air-Mile radius to inadvertent violations of the rules. As stated above, many commenters several stops for pick-up and/or delivery 150 Air-Miles, but not the 12-hour limit. said that the proposed changes would during the shift, or a few trips with Multiple commenters, mostly individual allow many more drivers to qualify for extended periods at the delivery/service commenters and drivers, expressed brief, general support for extending the or utilize the short-haul exception. site, etc.) and the distance limitation, Many commenters argued that a 150 the Agency does not believe short-haul radius for the short-haul exception to 150 air-miles. Many individuals and air-mile radius did not go far enough, CDL drivers will have more suggesting that it be increased to 200, opportunities or incentives to exceed 11 drivers said that the additional flexibility was helpful or would 250, or 300 air-miles. A commenter hours of driving time within the 14-hour asked what difference it makes how far window than non-CDL short-haul positively impact them, their industry, or their company. Some commenters drivers travel provided they return to drivers who already have these time and their home terminal within the allotted distance limits. Short-haul drivers do provided the following arguments for expanding the short-haul exception to time, noting that a short-haul driver can not have the opportunity to pause the legally drive almost as many miles 14-hour clock while drivers are loading 150 air-miles: • The proposed change would allow inside a 150 air-mile radius as a long- and unloading at the various points at haul driver. Other individual which services are being provided. carriers to classify drivers as short-haul more accurately; commenters recommended removing Safety investigators will continue to • the mileage radius as long as drivers sample and examine time cards and Extending the air-mile radius would reduce the burden of switching to return home at the end of a day. other HOS records during compliance FMCSA Response: The Agency agrees investigations. logbooks and installing e-logs; • Increasing the 100 air-mile to a 150 with commenters who stated that the The Agency reviewed its December air-mile radius would increase new proposed changes to the short-haul 16, 2015, final rule establishing the ELD business opportunities; exception would provide increased mandate and the accompanying • It is difficult to run a delivery flexibility to motor carriers and drivers Regulatory Impact Analysis. Based on business legally with the 100 air-mile without decreasing overall safety, the 2015 analysis, the Agency estimated restriction; irrespective of whether the 12-hour that the annualized safety (crash • The exception would reduce limit was increased. FMCSA also agrees reduction) benefit for mandating ELDs compliance burdens; and, with CVSA and other commenters that for all CMV operations (including short • Extending the air-mile radius would expanding the short-haul radius from haul) subject to the HOS requirements not increase safety risks. 100 to 150 air-miles would align it with would be $687 million while the Multiple industry associations and existing HOS requirements in annualized safety benefit for mandating motor carriers stated that extending the § 395.1(e)(2) and § 395.1(k) and thereby ELDs for all CMV operations where the 100 air-mile radius for the short-haul simplify enforcement and improve driver is required to prepare RODS exception to 150 air-miles would compliance. would be $572 million. The values were increase flexibility and positively FMCSA believes that a 150 air-mile presented in 2013 dollars at a 7% impact carriers, their members, or their radius is the appropriate size for the discount rate. The Agency explained: segment, including crop dusting, short-haul exception applicable to CDL ‘‘Safety benefits of requiring ELDs are commercial trucking, and motor coach holders operating in interstate higher when all regulated CMV operations businesses, retailers, beverage commerce. However, FMCSA disagrees

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with commenters requesting that the statistics, IBT stated that short-haul Furthermore, drivers must still return mileage should be longer or even drivers would experience increased to their normal work reporting location removed altogether, and with fatigue and more fatigue-related at the end of each work shift, which commenters seeking removal of the occupational injuries and crashes. negates the notion that drivers would be requirement for drivers to return to their Transportation Trades Department, able to cover a significant portion of the normal work reporting location. AFL–CIO opposed the proposal to operational area (approximately 70,650 Short-haul drivers with occasional increase the air-mile radius because it square miles) during a given work shift. assignments that necessitate traveling would not provide enough time for The study cited by Advocates, IIHS, and long distances (i.e., more than 300 air adequate sleep and would encourage Senator Murray (Teoh, 2017) was based miles round trip) have always been more driving time, increase driver on a small sample size which was not allowed to take on such assignments fatigue, and decrease safety. nationally representative and the provided they prepare RODS for those Congressman DeFazio warned that the analysts did not estimate a matched-pair days. And under existing regulations proposed rule significantly increases odds ratio restricted to drivers operating and the rules adopted today they may driving and on-duty time. under a short-haul exception. No data continue to conduct these operations up Several commenters took issue with was provided to suggest that driving to 8 days within a 30 consecutive day the Agency’s use of crash data on ready- distance was directly related to injuries period without incurring the costs of mixed concrete trucks to argue that a 14- received by short-haul drivers; rather, installing and using ELDs. The Agency hour short-haul work shift would not several citations provided state that believes the flexibility provided in this decrease safety. Commenters also relied most injuries suffered by short-haul final rule should be sufficient and that heavily on an IIHS study which drivers are experienced during non- the increased distance suggested by concluded that carriers using the driving tasks, such as loading and some commenters is far beyond what previous short-haul exception were unloading. should be considered short-haul significantly more likely to be involved The continued absence of an ELD operations. in crashes than carriers not using the requirement for short-haul operations Commenters Opposed to Extending exception. These comments are after expansion of the operating radius the Distance to 150 Air-miles. A number discussed more fully in the RIA. will not compromise safety. These of comments were opposed to the The IBT emphasized that a 14-hour short-haul operations are essentially proposal to extend the allowable short- short-haul work shift would increase the self-limiting because of the nature of the haul air-mile radius to 150 air miles, number of hours that drivers spend operations and requirement to return to arguing that: behind the wheel, the number of times the reporting location. The frequent • Extending the air-mile radius to 150 they get in and out of the cab and trailer, delivery stops generally made by short- air-miles would reduce safety; and the amount of freight they manually haul drivers mean they rarely approach • Short-haul is an often-abused rule handle. ‘‘Therefore, it is reasonable to the 11-hour driving limit. Expanding the and increasing the air-mile radius to 150 expect that the incidence and workday from 12 to 14 hours may result air-miles is a mistake; and, prevalence of occupational injuries and in more deliveries than were possible • The extension to 150 air miles will illnesses for these drives will also within a 100 air-mile radius, but total drastically reduce the number of carriers increase. In addition, motor carriers will driving time will usually continue to and drivers required to use ELDs, which likely experience higher worker fall short of the 11-hour limit. dilutes the intent of part 395, subpart B. compensation costs and costs associated Conversely, carriers that choose to serve Advocates argued that the proposed with increased crash liability.’’ new customers near the outer limit of changes would extend drivers’ duty FMCSA Response: The Agency the expanded 150 air-mile radius will days, extend driving hours later into the concludes that extending the air-mile draw down more of the 11-hour driving duty period, increase the number of radius will not reduce safety. The motor limit and therefore be unable to make as carriers operating under the exception— carriers and drivers that would take many deliveries as they could have thereby increasing the number of drivers advantage of this increased flexibility made within the previous 100 air-mile not provided adequate rest breaks, and continue to be limited to 11 hours of radius. Carriers may opt for either of impair enforcement. driving time during the work shift and, these alternatives, or settle on an Advocates also argued that FMCSA like other drivers subject to the HOS operational compromise that allows failed to provide evidence or analysis to requirements, continue to be prohibited them to serve somewhat more support its conclusion that VMT and from driving after 14 hours from the customers, somewhat farther away. In crash risk would not increase because of beginning of the work shift. These two any case, the nature of short-haul the extension of the air-mile radius to factors are most critical for ensuring safe operations, with frequent delivery stops, 150 air miles. A few commenters, operations among short-haul operators. means that an increase in violations of including Advocates, IIHS, and Senator With respect to not providing enough the 11-hour driving limit is highly Murray, cited IIHS’s 2017 crash risk time for adequate sleep, the Agency unlikely. study indicating that the short-haul reiterates that drivers must still comply Since the publication of the December exception was associated with a with the requirement for 10 consecutive 27, 2011 final rule concerning hours of statistically significant 383 percent hours off duty at the end of the work service (76 FR 81134), non-CDL drivers increase in crash risk. Senator Murray shift. There is no research or data have been allowed to use, and and an industry association warned that provided to suggest than an increase in presumably have used, the 14-hour a 50 air-mile radius increase would not the air-mile radius would result in driving window in short-haul increase the driving area in a linear increased crash risk, specifically when operations, within 150 air miles of the manner, but instead expand the total drivers are still restricted in the amount normal work reporting location. They area that drivers may operate by more of time they can spend on-duty and also operate within a 16-hour window than double to over 31,000 square driving. up to 2 days per week, within 150 air miles.12 Citing many studies and miles of the normal work reporting Safety, Teoh, Eric, 2017. https:// location. In other words, any carrier that 12 ‘‘Crash Risk Factors for Interstate Large Trucks www.ncbi.nlm.nih.gov/pubmed/28882260, last found it operationally and financially in North Carolina.’’ Insurance Institute for Highway accessed February 6, 2020. advantageous to utilize a 14-hour

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driving window has probably been the HOS rules, and instead would radius to ensure consistent enforcement doing so, at least with its non-CDL simplify enforcement since the revised actions. holders. Some of these carriers may short-haul exception would more FMCSA Response: The Agency agrees choose to utilize the revised short-haul closely align with other sections of the with the commenters who remarked that exception for CDL holders who exceed other HOS provisions, thus increasing the proposed changes to the short-haul the current short-haul time and distance compliance and enforcement. regulations will simplify motor carriers’ restrictions more than 8 times in a 30- Some commenters, including Road ability to comply with and enforce the day period to spare themselves monthly Safe America, the Trucking Alliance, HOS rules. The extension of the 100 air- ELD charges. However, it is possible motor carriers, and drivers warned, miles radius to 150 air-miles makes the that many will retain ELDs which however, that the proposed change distance radius consistent with the enable them to operate beyond the 150 would increase the likelihood that distance limitation for short-haul CMV air-mile radius when longer-haul motor carriers would not comply with drivers of property-carriers who are not opportunities arise. These carriers HOS rules because neither RODS nor required to possess a CDL, which will should experience no changes in the ELDs would any longer be required. simplify enforcing requirements of the rate of workplace injuries because the TruckerNation suggested that FMCSA short-haul exceptions for motor carriers rule will not require operational consider a standardized way for a driver that use both CDL and non-CDL drivers. changes. or motor carrier to make the distinction Likewise, extending the short-haul duty As indicated above, the expanded 150 that they operate under the short-haul period to 14 hours makes the duty air-mile radius may induce some exception to ensure compliance with period consistent with the rule for carriers to make longer runs with fewer the exception. ATA stated that, while drivers of property-carriers who do not deliveries than before, which may they understand that an ELD operate under the short-haul provision. minimize, or even eliminate, an increase requirement is impractical for some For carriers that have both short-haul in the number of stops, where IBT drivers who are engaged in local, daily and long-haul property operations, this claims workplace injuries typically activities, motor carriers should be will simplify their enforcement of the occur. In any case, IBT has not reported, required to have some form of an 14-hour duty period. nor is FMCSA aware of, any study that electronic device that tracks on-duty FMCSA does not agree that these purports to establish a dose-response and driving times. changes to the short-haul exception will curve showing workplace injuries as a The Customized Logistics and increase the likelihood that motor function of each hour worked. Delivery Association stated that carriers will not comply with HOS FMCSA reviewed the comments timecards and run distances are rules. Motor carriers must still ensure received and the previous short-haul recorded by all operational systems of a that short-haul drivers using the exception requests to determine how the carrier ensuring compliance and exception do not drive more than 11 rule would affect the number of drivers enforcement. hours for property carriers or 10 hours operating under the short-haul A few commenters stated that the for passenger carriers and that they exception. As discussed in the RIA for proposed changes to short-haul return to the same location they left this final rule, FMCSA is not estimating operations would not create any new from at the beginning of their work shift. a significant change in the number of enforcement difficulties. Some carriers Expanding the duty period to 14 hours drivers or motor carriers operating said that no enforcement difficulties without increasing the existing 11 hours under the short-haul exception given would arise because all their trucks of drive time will allow short-haul truck that the revision would only benefit have ELDs and all route locations and drivers more flexibility to spend time CDL holders who travel between 100 durations would be monitored. Motor with customers, respond to changes in and 150 air miles of the normal work Transport Association of Connecticut market demand such as peak holiday reporting location, and return to that said that the short-haul exception would delivery times, and reduce the location between 12 and 14 hours from make enforcement easier for law administrative burden of determining the beginning of the work shift. enforcement officials because it would how often a driver has gone beyond 12 While some drivers’ routine schedules be uniform for CDL and non-CDL hours or 100 air-miles in any 30- that were considered non-short haul drivers. consecutive day period. This change may now be eligible for the short-haul Road Safe America, ATA, Advocates, would also somewhat align with the 14- exception, it is unclear if motor carriers and several motor carriers warned, hour rule for drivers of property- employing those drivers will choose to however, that enforcement would be carrying vehicles who do not operate remove ELDs from their vehicles. harder because there would be no under the short-haul provision. Nevertheless, the Agency continues to legitimate way of tracking hours driven FMCSA does not agree that motor believe ELDs are not a cost-effective or worked without requiring RODS or carriers using the short-haul provision solution to ensuring HOS compliance ELDs. Road Safe America reasoned that should be required to use ELDs. Because for these drivers, as stated earlier. enforcement difficulties would increase drivers would be returning to their Ensuring Compliance with the Short- because the additional 50 air-miles original duty reporting location at the Haul Exception. The NPRM asked how could expand driving ranges into end of their shift, FMCSA will continue the proposed changes to the short-haul multiple States, which would require to allow motor carriers with short-haul exception would impact a motor coordination between officers of operations the option to use duty carrier’s ability to ensure its drivers different jurisdictions to determine if a reporting location time records rather comply with the HOS rules, and if driver is legally employing the short- than a record of duty status or ELD. enforcement difficulties would arise haul exception. Although motor carriers that conduct from expanding both the time and ATA suggested that FMCSA examine short-haul operations may use distance requirements. additional ways to track and enforce electronic tracking for payroll or other A few commenters, including ABA short-haul drivers’ on-duty and driving purposes, there is no requirement that and motor carriers, remarked that the times during the duty day. the time records be electronic. In proposed changes to the short-haul TruckerNation suggested that FMCSA addition, motor carriers are not required exception would not negatively impact establish an ‘‘operating policy’’ for to use the short-haul provision and can a motor carrier’s ability to comply with officers to determine the allowable require their short-haul drivers to use an

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ELD or other type of electronic device allowable driving limits, only the noted that 49 U.S.C. 31137(e)(1) if they choose. administration of driving shifts would prohibits the Secretary from using data In addition to simplifying the motor change. from ELDs except ‘‘to enforce the carrier’s ability to comply with and OOIDA and a few motor carriers Secretary’s motor carrier safety and enforce HOS for their drivers, the argued that a short-haul driver may related regulations.’’ Therefore, the ELD Agency agrees with the commenters drive farther with the expanded air-mile data cannot be used, outside the context who stated that the changes to the short- radius, especially in more rural areas, of enforcing part 395, to analyze either haul operations provision would also but noted that the proposal still the frequency of use of the short-haul simplify enforcement since the air-mile maintains the current 11-hour driving exception or the distances traveled by radius distance will be consistent for limit. drivers operating under the short-haul both CDL and non-CDL drivers. Some commenters said the exception exception. Furthermore, given that As for comments that enforcement has the potential to increase driving carriers using ELDs for short-haul would be harder without required RODS hours and miles. Road Safe America and operations do so on a voluntary basis, or ELDs and that the 150 air-mile radius IBT argued that short-haul drivers such data would not be representative of could expand driving into multiple would now drive longer, especially the wide variety of short-haul States, changes do not increase the since RODS would not be required and operations. difficulty of enforcement of the law enforcement would not be able to Cost Savings from Not Using ELDs. FMCSRs. Enforcement personnel will be ensure that a driver did not drive for the FMCSA asked for comments on the cost required to use the same investigative entire 14-hour duty period. IBT added savings that would be expected from not techniques as they currently do to verify that surveys show that drivers are having to comply with the ELD radius of travel, driving time, and start already being required to perform or requirements for operations out to a time for the work shift. Generally, will likely be assigned work that would radius of 150 air-miles. Commenters enforcement personnel use an online increase miles traveled or entail more noted that cost savings could range from air-mile radius calculator to determine non-driving tasks that extend the $240 to $1,700 per truck, including the compliance with radius requirements workday to 14 hours, all of which will costs for purchase of the device, data and would not require assistance from increase their fatigue and decrease maintenance, and technical support. officers of different jurisdictions when safety. A few commenters stated that Comments from industry associations the radius extends into adjacent States. interstate and intrastate operations stated that the cost savings would be at FMCSA will continue to work with the would likely use the additional 50 air- least $500 to $1,000 per truck, including Commercial Vehicle Safety Alliance’s miles and additional time to service costs for equipment, maintenance, (CVSA) committees assuring uniform customers who would otherwise receive repair, and back office administration. training development and delivery, and service through a separate operational ABA stated that, due to the diverse enforcement tolerances. This on-going schedule. nature of the motor coach industry, partnership will ensure smooth Commenters, including OOIDA and some segments of the driver population implementation of the modified short- other industry associations, asserted would continue to use ELDs. Road Safe haul provision. Many State officials that short-haul drivers would not drive America warned that the cost savings already have experience dealing with any further or longer than those associated with the avoidance of ELDs non-CDL short-haul drivers who are complying with ELD requirements. would be negligible compared to the far currently provided a 14-hour driving Some industry associations argued that greater costs of significantly increased window and 150 air miles within which many carriers would use ELDs risk of fatigue-related crashes associated to operate and this first-hand knowledge regardless of whether they could operate with extending the short-haul will be helpful in developing the under the short-haul exception. exceptions. ATA suggested that FMCSA training materials. The ABA remarked that ELD assess the motor carrier populations More Behind-the-Wheel Time During providers could serve as an invaluable affected by the changes to the short-haul the Driving Window. The NPRM asked resource to FMCSA for purposes of exception to better estimate the if drivers would drive farther or longer providing data on use of the short-haul industrywide cost savings of the in the driving window (i.e., spend more exception (i.e., frequency of use and proposed rule. of the work shift behind the wheel) if distances traveled). FMCSA Response: FMCSA the short-haul exception was revised. FMCSA Response: The Agency agrees acknowledges commenters’ views. FMCSA also asked whether the time that drivers will generally not spend FMCSA previously estimated a per- behind the wheel for these operations significantly more time behind the truck cost of $419 per ELD, and notes would differ from that of drivers wheel on a daily basis than they that this is within the range provided by complying with the ELD requirements. currently do, especially because they are commenters.13 It is, however, unclear Many commenters, including motor limited to 11 hours of driving time. how many motor carriers and drivers carriers and drivers, argued that drivers With respect to the notion that drivers will no longer be required to use ELDs. would not drive farther or longer for will drive farther by falsifying time For instance, although some bus routes various reasons, including that drivers records due to the lack of an ELD, the will no longer need ELDs, the motor would be required to return to their Agency notes that the exception carrier may choose to retain the device original locations, that the 11-hour allowing short-haul drivers to use time to use the bus on longer-haul routes, maximum driving rule would still cards as opposed to RODS has long should the occasion arise. Further, some apply, and that the current miles and existed in the HOS rules. Nothing in the motor carriers use and will retain ELDs radius are sufficient. changes to the short-haul exception for business reasons, even if not Citing studies, the U.S. Chamber of creates additional opportunities for required by regulation. Under the Commerce stated that, while shifts in short-haul drivers to falsify time changes made to the short-haul driver schedules would occur, overall records. The normal work-reporting exception today, these motor carriers increase in driver schedule intensity location requirement remains applicable will not necessarily see a reduction in would not. The commenter reasoned to short-haul drivers. the number of ELDs. FMCSA is not that, because most drivers never As to ABA’s comment regarding ELD approach the maximum daily or weekly data as a valuable resource, it must be 13 80 FR 78292, December 16, 2015.

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quantifying a cost savings in this rule a different location would effectively performing many non-driving activities due to the uncertainty surrounding the turn them into traditional long-haul each day. Citing research studies, the number of vehicles that will no longer operations minus the required rest break Petroleum Marketers Association of use ELDs. and ELDs. America argued that, while the studies FMCSA reviewed the comments and Many commenters, however, did not specifically address the 30- tried to estimate the number of drivers including TruckerNation, OOIDA, ABA, minute break, they indicate short-haul who would be covered by the short-haul and industry associations, supported drivers are less likely to experience exception. This is discussed in detail in allowing drivers to end the shift at a reduced safety performance due to the section 2.4 (Baseline for Analysis) of the different location, citing various nature of the job. TruckerNation stated RIA for the final rule. Inadequate data benefits, including minimizing driving that the proposed changes to the 30- prevented FMCSA from estimating the time and distance traveled, reducing minute break would mean ‘‘short-haul number of additional drivers who will wear on the fleet, aligning with the operators will not reach the 8th likely operate under the revised short- diverse nature of the trucking industry, consecutive hour of drive time without haul exception. The Agency has maximizing the allowable on-duty the opportunity to have an on-duty, not determined that the carrier-reported period, leading to more productive and driving change in duty status’’ and information on drivers operating within flexible schedules, and not negatively would eliminate regulatory complexity 100 air miles of their work reporting impacting safety. Many industry by making the short-haul exceptions the location is a good proxy for the count associations stated that returning to the same as HOS regulations for all drivers. of drivers who are eligible for, and will same location does not necessarily IBT, citing research and studies, said operate under, the short-haul exception promote safer driving habits and that that eliminating the 30-minute break following the implementation of this modern technology allows businesses to requirement for short-haul drivers final rule. monitor the start and stop locations of would have an adverse impact on safety Return to the Normal Work Reporting their drivers via tracking apps and as data demonstrates that crash risk Location. Some commenters to the electronic communications. significantly increases after the 7th ANPRM requested that drivers using the The Minnesota Trucking Association consecutive hour of a driver’s short-haul exception be allowed to end remarked that its members were split on workday.14 Another commenter, a their work shift at a different location this question, with some supporting driver, warned that the elimination of than the one from which they were allowing drivers to end at a different the 30-minute break for drivers who are dispatched. FMCSA requested public location. potentially driving later in their duty comment on this issue, including which FMCSA Response: The Agency has period would impact safety because segments of the motor carrier industry opted not to change the requirement drivers would not obtain adequate rest would be impacted by such a change that short-haul drivers return to their and their performance could suffer. and whether the change would have an work reporting location at the end of Advocates asserted that by asking this adverse effect on safety, or lead to their shift. The current requirement is question, FMCSA is ‘‘admitting’’ that operational changes such as increased consistent with operations that are the proposed changes would result in driving time per trip or driving in the generally considered short-haul. As drivers being scheduled to drive later in 12th and 13th hour after coming on- commenters noted, the current their duty period. duty. requirement assists enforcement FMCSA Response: FMCSA concludes Many commenters, including the U.S. personnel in determining the that the expansion of the criteria for Chamber of Commerce, Advocates, applicability of the short-haul exception short-haul operations and the associated motor carriers, and drivers, argued that and prevents abuse. If the requirement elimination of the 30-minute break short-haul drivers should not be were changed, enforcement personnel requirement for these drivers will not allowed to end the work shift at a would not have a beginning reference have an adverse impact on safety. As different location. Road Safe America, point from which to calculate the 150 noted above, the primary factors CVSA, the Trucking Solutions Group, air-mile radius. The provision would be influencing safety outcomes for short- and Sysco Corporation said that difficult to enforce and could lead to haul drivers are the continued removing this requirement would abuse as drivers could potentially ‘‘leap- adherence to the 11-hour driving time contravene the original intent of the frog’’ across the country without any limit and the continued prohibition short-haul exception. Trucking way to verify their hours of service. against driving after the 14th hour of the Solutions Group added that such a The 30-Minute Break in Relation to beginning of the work shift. FMCSA change would give short-haul the Short-Haul Provision. The NPRM acknowledges that in the 2011 final rule companies a competitive advantage over asked if eliminating the 30-minute break and during the subsequent litigation, the companies that is ineligible to operate requirement for drivers who are under the exception. ATA warned that potentially driving later in their duty 14 IBT cited: 65 FR 25539 (Apr. 2000); the provision to return to the same period would impact safety. Saccomano, F., et al., ‘‘Effect of Driver Fatigue On A few commenters, including Truck Accident Rates,’’ Urban Transport and the location ensures compliance with the Environment for the Twenty-First Century (ed. L.J. short-haul requirements; otherwise, industry associations, said that the Sucharov), Computational Mechanics Publications, enforcement would have no way to elimination of the 30-minute break Southampton, U.K., 439–446 (1995); Saccomano, F. ensure drivers adhere to the air-mile requirement would not negatively and Shortread, J., ‘‘Truck Safety: Perceptions and Reality,’’ the Institute for Risk Reduction, Ontario, radius and on-duty limits. The Trucking impact safety for various reasons, Canada, 157–174 (1996).; Lin, T. et al., ‘‘Time of Alliance, Road Safe America, and CVSA including that short-haul drivers often Day Models of Motor Carrier Accident Risk,’’ said that short-haul drivers should be make frequent stops throughout the on- Transportation Research Record 1467: 1–8, required to return to their work duty period, are less likely to be affected Transportation Research Board, National Research Council, (1994); Frith, W., ‘‘A Case-Control Study reporting location, because otherwise by driving-related fatigue, and will have of Heavy Vehicle Drivers’ Working Time and drivers would be able to ‘‘leapfrog’’ from the flexibility to stop as needed to rest Safety,’’ Proceedings of the Australian Road one location to another across the under the additional time provided in Research Board Conference, 17(5): 17–30 (1994) and country, extending the effective air-mile this rule. The Trucking Alliance said the Jovanis, J.P., Wu, K.F., and Chen, C., ‘‘Hours of Service and Driver Fatigue—Driver Characteristics radius beyond 150 air miles. Advocates 30-minute break is not necessary Research,’’ FMCSA (April 2011), DOT docket argued that allowing carriers to return to because short-haul drivers would be number FMCSA–2004–19608–27614.

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Agency argued that, on their face, the Exception and ELD Mandate. CVSA and 30-day consecutive period with an ELD. safety benefits of an off-duty 30-minute Schneider National Carriers, Inc. stated Whether to remain within or exceed the break requirement applied to short-haul that short-haul carriers using the short-haul limits is strictly a business operations as well as long-haul. The proposed exception without using an decision on the part of the carrier, and D.C. Circuit Court of Appeals, however, ELD should not be eligible for workday the Agency has not identified safety found that applying the 30-minute break extensions, like that granted for adverse issues associated with the use of either requirement to all drivers despite the driving conditions. The commenters of these options. clear distinctions between short-haul reasoned that short-haul drivers would The NPRM did not propose to and long-haul operations was not be familiar with the routes and weather harmonize the short-haul rules for CDL justified in the record.15 The Agency has in their operating territory and would be and non-CDL drivers (§ 395.1(e)(1) and received no new evidence to compel a able to abuse the program if allowed to (2), respectively) concerning the different finding. claim an extra 2 hours of driving time. allowance of a 16-hour window up to 2 Moreover, there is no safety basis for A few commenters, including the days in a 7 consecutive day period for expanding the definition of short-haul Trucking Alliance, U.S. Chamber of non-CDL holders. The Agency has not but continuing to require a 30-minute Commerce, industry associations, and witnessed a demand for that level of break for the subset of short-haul CDL motor carriers, stated FMCSA should flexibility since implementing the ELD drivers who operate between 100 and require ELDs regardless of the distance mandate either in the form of requests 150 air miles, or who drive between the traveled. for guidance or clarifications, or 12th and 14th hour of coming on duty. TruckerNation suggested that FMCSA applications for exemptions. Therefore, To the extent that the debate and include clear regulatory language the Agency did not propose such a comments about the safety impact of explaining that short-haul operators are change in the NPRM and considers the relieving this group of drivers of the exempt from the ELD mandate and are matter to be beyond the scope of this need to comply with the 30-minute only required to prepare and maintain rulemaking. break provision lingers, FMCSA time cards. The Trucking Alliance Commenters Suggesting Industry- believes it is best resolved below in the suggested harmonization between the Specific Exceptions. A few trade groups Agency’s decision concerning changes interstate CDL short-haul operations requested that FMCSA allow industry- to the 30-minute break. exception and the interstate non-CDL specific exceptions for certain short- The changes adopted in this final rule short-haul operations. An industry haul operations, including for result in the break being required after association developed a ‘‘Daily Driver’’ hazardous materials, concrete pumps, 8 consecutive hours of driving time, concept as an alternative to the short- construction vehicles, and waste and rather than 8 hours after coming on- haul exception and suggested specific recycling. The National Lumber and duty. That change alone would make language. Building Material Dealers Association the 30-minute break inapplicable in FMCSA Response: FMCSA believes urged FMCSA to provide the lumber nearly all short-haul operations in that that the revised short-haul exception and building material industry a short- they would not drive 8 consecutive adopted today maintains safety while term ELD exception stating that many of hours without having a break of at least providing motor carriers and drivers their members use short-term rentals of 30 minutes from the driving task. greater flexibility. The Agency is not 30 days or less to meet high demand FMCSA reviewed the Blanco study persuaded that various alternatives periods or instances where vehicles and notes that it found that any type of suggested by commenters would have been taken out of operation for break (both off-duty, and on-duty not achieve that goal. Requiring ELDs for repairs or service. The American Farm driving) was beneficial to the driver.16 any subgroup of the short-haul carriers Bureau Federation suggested allowing Furthermore, it has been demonstrated would essentially negate the short-haul drivers hauling live animals and in multiple research efforts that time on exception because the daily preparation agriculture to rest ‘‘at any point during task is a leading contributor to driver of RODS would make the regulatory their trip without counting this rest time fatigue. The requirement for a break scheme for short-haul operations largely against their HOS allotments and after 8 hours of consecutive driving time the same as other operations. The allowing drivers to complete their trip, addresses this concern more adequately extension of the workday from 12 to 14 regardless of HOS requirements, if they than requiring a break after 8 hours of hours for returning to the original work come within 150 air-miles of their coming on-duty, and short-haul drivers reporting location without increasing delivery point.’’ have frequent breaks from driving the existing 11 hours of driving time The National Private Truck Council, throughout the day. Therefore, FMCSA will put short-haul operations on Inc. suggested requiring drivers to disagrees with the commenters who essentially the same footing as long-haul document their adherence to the 150 stated that allowing short-haul to be operations with the distinction being air-mile radius and 14-hour time excepted from the requirement would that they must return to the normal requirements through GPS telematics, have an adverse impact on safety and work reporting location. Increasing the paper log, timecard notation, or some continues to except short-haul drivers 100 air-mile radius distance to 150 air- equivalent means. The American Fuel from the 30-minute break requirement miles will allow short-haul drivers and Petrochemical Manufacturers asked despite the extension of the duty day to greater flexibility. Together, these for additional information from FMCSA 14 hours. provisions will reduce potential on the potential impacts of the proposed Comments about the Relationship pressure on drivers for timely short-haul exception on recordkeeping Between Changes to the Short-Haul completion of their duty day. requirements, including the current 8- Exception, Adverse Driving Conditions Drivers who normally operate under in-30 exception. the short-haul exception but FMCSA Response: The motor carrier 15 American Trucking Ass’n v. FMCSA, 724 F.3d occasionally find it necessary to exceed industry is diverse. As noted above the 243, 253 (D.C. Cir. 2013). those limits can already drive within a Agency has granted multiple 16 ‘‘The Impact of Driving, Non-Driving Work, 14-hour window for up to 8 days in any exemptions for certain industry and Rest Breaks on Driving Performance in Commercial Motor Vehicle Operations.’’ Blanco, et 30-consecutive day period without segments and there are various statutory al. (2011). Available in the docket for this ELDs, provided they utilize paper and regulatory exceptions for several rulemaking. RODS, or for more than 8 days in any industry segments. Many of the

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commenters cited the exemptions and • Would this change cause drivers to concern that the current adverse driving exceptions. While the exemptions travel farther in adverse driving condition rules are not enforced granted were for certain industry conditions? consistently. The U.S. Chamber of segments, the exemptions generally fall • Would this change drivers’ behavior Commerce and several industry within the 150 air-mile distance and/or when encountering adverse driving associations said their members rarely 14-hour time constraint, such that this conditions? How so? use the exception, although the final rule addresses the issue in general • Understanding adverse driving expansion would be helpful in extreme terms rather than specific industry conditions cannot be predicted, would conditions. segments. Also, given that the Agency drivers utilize this provision more often FMCSA Response: FMCSA agrees that did not propose specific industry carve- after this change? by adding time to the duty day for this outs in the NPRM, considering such Additionally, FMCSA requested exception, drivers may reduce their regulatory exemptions is outside of the public comment about potential speed or delay operations when they scope of this rulemaking. modifications to the definition of experience unanticipated adverse The requirements for applying for an ‘‘adverse driving conditions.’’ driving conditions. exemption are provided in 49 CFR part Specifically, the Agency requested input FMCSA agrees that radar and 381 subpart C of the FMCSRs. After on the suggestion that knowledge of the technology may not be entirely accurate receiving an application for exception existence of adverse driving conditions and thus leaves the driver/dispatcher from the FMCSRs, the Agency will should rest with the driver rather than discretion in this final rule. FMCSA is publish a notice in the Federal Register the dispatcher. Alternatively, FMCSA not aware of any issues with as required by § 381.315 and request asked whether the requirement for lack enforcement of or compliance with the public comment on whether the Agency of advance knowledge at the time of adverse driving conditions exception. should grant the request. FMCSA cannot dispatch should be eliminated, and Commenters Requesting Additional grant an exemption unless it would whether the current definition of Flexibility for Adverse Driving likely achieve a level of safety ‘‘adverse driving conditions’’ should be Conditions. Many commenters stated equivalent to that achieved by modified to address other that the proposal did not go far enough. complying with the rule from which an circumstances. Among their comments: exception is sought. Commenters Supporting an Extended • The provision should include In recent years, the Agency has Driving Window. The changes proposed unforeseen traffic conditions, such as received numerous requests for in the NPRM would apply to drivers of emergency road repairs, congestion, and exemptions related to the short-haul both property-carrying CMVs, normally traffic accidents to allow drivers to provisions; several of these requests for subject to a 14-hour driving window, compensate for ever worsening traffic exemptions have been granted (available and passenger-carrying CMVs, normally congestion and infrastructure problems. at www.fmcsa.dot.gov/exemptions), subject to a driving window of 15 non- • Drivers should be allowed to decide while others have been denied. consecutive hours. how to respond to road conditions. FMCSA did not propose or consider Numerous commenters, including • The proposed changes to the new alternative means for motor carriers OOIDA, CVSA, the U.S. Chamber of extended driving window were not to document short-haul drivers’ hours Commerce, ABA, IBT, motor carriers, sufficient. under the revised short-haul exception, industry associations, and individuals A few industry associations, motor and is not adding any new expressed support for the proposed carriers, and individual commenters recordkeeping requirements at this time. adverse driving conditions provision. argued that drivers should have more Furthermore, the changes to the short- Many individuals and drivers stated discretion over the hours in which they haul provisions in this final rule in no that the extension would relieve the drive in potentially adverse driving way relieve carriers and drivers of the pressure, stress, and fatigue on drivers. conditions and that this provision did responsibility for complying with the Most commenters reasoned that granting not grant enough flexibility to drivers. current recordkeeping requirements drivers more flexibility would improve TruckerNation stated that increased found in § 395.1(e)(1)(v), which are road safety. clarity and supporting guidance is consistent with 6-month recordkeeping Some commenters argued that road needed, asking how a driver would be requirements for other records. See, e.g., conditions are not always accurately required to document the use of this § 395.8(k)(1) (requiring retention of reflected in weather radar maps or other provision on RODS to enable its RODS and supporting documents for 6 technologies, so drivers should have the increased and proper use. Many months); § 395.22(i) (requiring motor flexibility and discretion to determine industry associations and individuals carriers to retain for 6 months a backup when it is safe to drive. The California also commented that the current copy of ELD records). Highway Patrol said the provision definition of ‘‘adverse driving would allow driving at a reduced speed conditions’’ should be clarified. Several 4. Adverse Driving Conditions or delay operations while in adverse commenters asked that the definition be NPRM. The Agency proposed driving conditions, which may reduce expanded to address detention time or allowing drivers encountering adverse the risk of crashes and improve road concerns specific to various sectors of driving conditions a driving window of safety. Keep Truckin, Inc. based its the industry. up to 16 hours (for property carriers) support on anonymized and aggregated FMCSA Response: This final rule within which to complete up to 13 data of daily traffic patterns and speed modifies the adverse driving condition hours of driving, or a duty period of up fluctuations in Washington, DC and exception to allow extension of the to 17 hours (for passenger carriers) Atlanta, Georgia. An industry driving window by up to 2 hours, within which to complete up to 12 association said extending the driving consistent with the 2-hour extension of hours of driving. window for adverse driving conditions driving time permitted under the FMCSA also sought additional would greatly benefit the delivery of current regulations. Though some information and data on the impacts of farm supplies. commenters argued for an expansion of changing the adverse driving conditions While supporting the proposal, the current definition of ‘‘adverse provision, in part to assess its potential OOIDA, ABA, and the United driving conditions’’ to include costs and benefits. Specifically: Motorcoach Association expressed circumstances such as unforeseen

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traffic-related conditions, a close look at period extensions permitted by the association said that predicting the the definition shows that these road Federal Aviation Administration (FAA) effect of the provision on travel distance conditions are already covered. The and the Federal Railroad Administration is impossible. HOS rules currently define ‘‘adverse (FRA) ignore the regulatory and FMCSA Response: This rule would driving conditions’’ as ‘‘snow, sleet, fog, operational differences among these not allow an increase in driving time, other adverse weather conditions, a Administrations and do not include any but it would increase the driving highway covered with snow or ice, or of the FAA’s or FRA’s limitations or window from 14 to 16 hours when an unusual road and traffic conditions, additional requirements, nor has adverse driving condition is none of which were apparent based on FMCSA performed any analysis to encountered. FMCSA asked whether the information known to the person indicate that such comparisons are extension of the driving window in the dispatching the run at the time it was correct and meaningful. event of adverse conditions will result begun.’’ The definition specifically FMCSA Response: FMCSA in an increase VMT. No commenter refers to ‘‘unusual road and traffic acknowledges that the proposal could provided responsive data, and none may conditions’’ which would cover most of allow drivers who experience adverse exist. Ultimately, each adverse driving the concerns mentioned by commenters. driving conditions to operate later into condition will create a unique set of FMCSA does not believe it is necessary the duty day. The Agency also unpredictable circumstances that to further expound on the traffic acknowledges that parallels with the drivers and motor carriers will react conditions, as they are generally airline and railroad industries are not to—not plan for. Accordingly, motor covered. However, the definition is exact. However, this change would carriers will not be able to plan for modified for clarity and to recognize create an incentive for drivers to drive additional deliveries, trips, or VMT, and that the adverse driving conditions more slowly or take a break from driving the final rule does not quantify the exception might apply based on during adverse driving conditions, given impact of these driving changes on knowledge of a driver (in addition to the that, as a result of this change, they will VMT. The FMCSA believes that any dispatcher) under certain have up to 2 additional hours to either increase in VMT will be negligible circumstances. complete their run or to reach a safe because the total amount of driving time Commenters Opposed to Additional location without exceeding the remains unchanged by this rule. Flexibility for Adverse Driving maximum daily driving windows. Comments About the Impact of the Conditions. Some commenters opposed Additionally, FMCSA notes that surveys Exception on Driver Behavior. The the extension of the driving window. by two major trade associations NPRM asked whether the proposed rule They said that: demonstrate that the adverse-driving- would change drivers’ behavior upon • The extension would encourage conditions exception is not frequently encountering adverse driving drivers to continue driving when used. Although changes intended to conditions. Multiple commenters, conditions are poor. clarify the definition and improve including OOIDA, ABA, IBT, other • Dispatchers and drivers would flexibility may result in an increase in industry associations, and motor extend the day without any adverse the use of the exception, there is little carriers said the provision would driving conditions or otherwise abuse reason to expect that either the increase improve safety by allowing drivers the the provision to get around a violation. in use (or its potential abuse) will be flexibility to find a safe place to park • This provision would cause an significant. and avoid adverse driving conditions. enforcement problem. FMCSA also disagrees that this However, the NSC cited research and Several commenters, including IIHS, change would increase enforcement studies arguing that the longer an AASM, Senator Murray, and problems. Drivers relying on the adverse individual is awake, the higher the Transportation Trades Department, driving conditions exception would likelihood of safety-critical mistakes. AFL–CIO, argued that the proposal routinely annotate their RODS to avoid Advocates warned that abuse of the would worsen driver fatigue. Advocates an HOS violation; consistent with proposed exception would likely warned that extending the driving current practice, a law enforcement increase because carriers could coerce window enables driving later in the officer could investigate the merits of drivers to complete trips when duty period, which research has the claimed exception. conditions are adverse or because associated with increases in crash risk, Commenters Discussing the Impact on drivers could adjust their evaluation of stating that FMCSA provided no VMT. Several commenters, including the risk and continue to drive despite analysis of that risk. IIHS cited studies OOIDA and many other industry the opportunity to use the exception to on the safety and health consequences associations, argued that this provision stop. Either way, Advocates said for drivers of disrupted circadian would cause drivers to drive more FMCSA provided no analysis of these rhythms. Congressman DeFazio warned safely, not greater distances, in adverse possibilities and their effect on safety. that the proposed rule would driving conditions. Currently drivers Other commenters, including Western significantly increase on-duty time. may drive up to 2 additional hours but States Trucking Association and Sysco The Trucking Alliance opposed this they may be pressured to complete Corporation, said that the provision will provision, saying that the definition of driving within the 14-hour window. The not change driver behavior. ‘‘adverse driving conditions’’ is unclear, expansion of the driving window would FMCSA Response: FMCSA agrees allowing drivers to exploit the exception enable them to drive more cautiously. with commenters that it is hard to and use it to extend their driving Conversely, AASM argued that the predict, on an aggregate level, what window every day. Conversely, the provision would cause drivers to drive behaviors may change. However, trade Kentucky Driver’s Association longer distances. They argued that the association surveys suggest that this commented that, because the proposed assumption that drivers would reduce exception is not frequently used. rule could be abused to pressure drivers speed or delay operations during FMCSA does not believe the level of use to drive beyond the normal 14-hour cap, adverse driving conditions is not or abuse will change significantly it should be limited to ‘‘verifiable’’ supported by scientific study. An because of this rulemaking. events. individual argued that this provision Nevertheless, FMCSA agrees with Advocates stated that FMCSA’s will cause drivers to travel farther commenters that the additional comparisons of this proposal with duty distances. ABA and an industry flexibility provided by the revised

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exception will assist drivers in avoiding or additions to the definition of specific provisions for livestock haulers. perilous conditions. FMCSA ‘‘adverse driving conditions.’’ CVSA recommended making the emphasizes that this change will not Commenters asked for both a broader definition like the Canadian federal increase the driving time available definition, as well as a more specific definition. during adverse driving conditions. By definition. Under the current definition, adverse increasing duty time without increasing More Detailed Definition. OOIDA, driving conditions must not have been driving time, this change will provide TruckerNation, other industry known to the dispatcher when the run the drivers with more non-driving associations, and motor carriers said the began. The Agency asked whether the options to safely respond to an adverse definition should be expanded to driver’s lack of knowledge should be driving condition. include all unpredictable conditions used as a precondition for the FMCSA does not believe that changes that a driver may face, such as traffic exception. FMCSA also asked whether to the adverse driving conditions congestion, vehicle accidents, the requirement for lack of advance exception will mean that drivers are construction, or road closures. Multiple knowledge at the time of dispatch awake longer. The studies raised by commenters and drivers said the should be eliminated. commenters did not look at workdays proposal should specifically define Multiple commenters, including with opportunities for rest or sleep in adverse driving conditions to embrace OOIDA, ATA, and motor carriers, said them. Additionally, as pointed out by non-weather conditions, including the driver knows the status of road OOIDA, ABA, IBT, other industry Federal and State safety inspections, conditions better than a dispatcher associations, and motor carriers, drivers unexpected loading or unloading issues could, so the driver should be may utilize the additional duty time at shippers and receivers, and truck responsible for making safety decisions. provided by this change to take a break breakdowns. TruckerNation stated that advance from driving that they may not have Schneider National Carrier, Inc. knowledge should not be a requirement taken otherwise. recommended that the adverse driving and that, as with all safety decisions, Comments About the Frequency of conditions exception be available to discretion should be left to the driver. Adverse Conditions. The NPRM asked drivers only once per week. Schneider ATA acknowledged that dispatchers drivers whether they expected to use the added that the exception should not be may be aware of adverse driving proposed exception more often. Many allowed to be combined with the use of conditions before drivers, so dispatchers commenters predicted that drivers the split sleeper berth option or the should continue to notify drivers. would use the exception more often, proposed split-duty provisions. The OOIDA and the Association of especially if the definition were American Moving and Storage American Railroads and the American clarified. Association recommended also allowing Short Line and Regional Railroad The U.S. Chamber of Commerce, carriers to use the adverse driving Association said the requirement for the however, does not anticipate increased conditions exception for conditions lack of advance knowledge at the time use because its motor carrier members known before dispatch. of dispatch should be eliminated do not regularly use it in the first place. TruckerNation suggested requiring an because it prevents drivers from using Other commenters also stated that option on an ELD for a driver to upload the provision if road conditions change drivers will not use the provision more evidence or a detailed annotation to after dispatch. often. The National Association of Small establish and document adverse driving No Changes. Other commenters, Trucking Companies said that the only conditions. including IBT, California Highway reason for a change in the frequency of Road Safe America, the Trucking Patrol, and the Truckload Carriers use would be if a truck driver began Alliance, ATA, Advocates, a few Association, recommended that there be working in a new region. A motor industry associations and motor carriers no changes to the current definition. carrier argued that driver behavior, in said that the definition should be FMCSA Response: FMCSA declines to terms of making the decision whether to clarified, but not expanded. Advocates make the definition applicable to use the exception or the frequency of and Uline believe adverse driving specific sectors of the industry or to use often to use the exception, will not conditions should be defined as cover situations not contemplated by change because the definition of accurately and narrowly as possible, the current definition. The Agency also ‘‘adverse driving conditions’’ remains and that the situations under which the declines to exclude situations currently unchanged. exception may be used should be covered. Many of the suggested FMCSA Response: FMCSA does not clarified to minimize abuse. ATA expansions would be covered under a believe the changes adopted today are conducted a survey of its members, reasonable interpretation of the current likely to increase significantly the use of some of whom said that ‘‘adverse’’ definition; inconsistent interpretations the exception, but is unable to estimate should be narrowly defined to include might be addressed best by training and changes in the frequency on an only Federal or State declared further outreach efforts. Although the industry-wide level. The change emergencies, while others favored the Agency does not believe the current provides drivers with a better inclusion of all unforeseen road definition is vague, it nonetheless has opportunity to use the additional conditions. revised the definition for enhanced Broader Definition. OOIDA driving time already allowed under the clarity. current rule such that the adverse recommended replacing the term Agency guidance concerning the conditions that necessitate driving ‘‘adverse’’ with ‘‘unforeseen’’ to be more exception makes clear that it covers beyond the 14th-hour of the work shift encompassing. The U.S. Chamber of only situations that occur after a driver Commerce proposed a definition in may be addressed provided the driver started her or his trip.17 This final rule which ‘‘adverse driving conditions’’ can reach an appropriate stopping point does not deviate from that principle. would be any conditions which could without exceeding 13 hours of driving The exception does not cover detention not be predicted at the time of dispatch, time. time, breakdowns, or enforcement Definition of Adverse Driving thereby granting flexibility to both Conditions; Driver and Dispatcher drivers and dispatchers. A few industry 17 See Interpretations under the HOS rules, Knowledge. The NPRM asked for public associations recommended that FMCSA § 395.1, https://www.fmcsa.dot.gov/regulations/ comment about potential modifications expand the definition to include title49/part/395.

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inspections—factors that are to be allowed these normal breaks from drivers, and some industry associations, anticipated in the industry. Nor does it driving to count as an interruption of supported the proposed changes for a cover things such as road construction the 8 hours of driving status (i.e., ‘‘time variety of reasons, among them: or detours except when they could not on task’’ in the research literature), • Increased driver control and reasonably be known before the driver provided the break lasts at least 30 flexibility; started driving, such as accidents that minutes. The proposed changes to the • Shortened on-duty hours, reducing significantly interfere with traffic 30-minute break provision would not fatigue; movement. have allowed an increase in maximum • Increased control over break-time The exception is mainly meant to driving time during the work shift or activities (i.e. using the break to load or cover situations outside a driver or driving after the 14th hour from the fuel); motor carrier’s control, and the Agency beginning of the work shift. • Simplified implementation; and, does not expect it to be invoked The NPRM sought information and • Short-haul trip benefits. frequently. Thus, the Agency declines to data on the impacts of changing the 30- Several commenters said, limit its use to a fixed frequency or in minute break provision, in part to better counterintuitively, that the 30-minute combination with unrelated provisions assess its potential costs and benefits. break made them more tired. The of the HOS regulations or to expand on Specifically, the Agency asked: implication of such arguments seems to the current industry practice of • Would you take fewer total breaks be that the focus on driving creates documenting use of the exception on a from driving with this change? How tension, which dissipates when drivers driver’s RODS. many and when would those breaks stop. Having relaxed against their will However, the Agency believes have occurred during your route? for 30 minutes, drivers may then find it clarification is appropriate given the • Do you expect to still take a 30- difficult to recover their previous common availability and use of minute break if you have less than 8 intensity, which feels to them like technology that can provide motor hours of drive time? If so, would you exhaustion—but does not have that carriers and drivers notice of adverse take that break on-duty or off-duty? effect. Virtually all commenters argued weather (and sometimes road) • If you no longer need to take a 30- that the 30-minute break did not conditions. The definition has been minute break, how would you expect to improve safety, and some even asserted revised somewhat to recognize that spend this additional time? that increases in CMV crashes and • drivers on the road can evaluate How would this provision change fatalities in recent years are attributable situations that could not be foreseen your scheduling and planning? to counter-productive regulations like • before dispatch or the start of a duty day Do you expect to drive more miles the 30-minute rule. (or after a sleeper berth period). As or hours based on this change? Do you ATA described new research that the revised, the definition covers conditions expect to be able to complete additional association believed suggested that there that are unknown, or could not ‘‘runs’’? is additional benefit relative to an on- reasonably be known, to the driver Additionally, the Agency duty break. The Trucking Alliance and immediately before the start of the duty acknowledged that many commenters to CVSA also said that a 30-minute on- day or before resuming driving after a the ANPRM specifically asked that the duty break would not decrease safety for sleeper berth break, or to the motor 30-minute break requirement be drivers needing a break. carrier immediately before dispatching eliminated entirely and considered that The International Food Service the driver. FMCSA believes that this as an alternative under E.O. 12866. Distributors Association stated that, in change to the definition will lessen the However, the NPRM said that, without some cases, the proposal would allow need for future regulatory guidance. the benefit of further information, it food-service distributors to add Furthermore, this change will not would not be appropriate to eliminate additional stops to a route, maximizing increase available driving time beyond the 30-minute break. Given that the efficiency and reducing traffic. what is currently allowed by the flexibility allowed in the proposal FMCSA Response: The Agency agrees exception. would alleviate many of the concerns with the commenters that the 30-minute expressed by commenters, in the NPRM 5. 30-Minute Break off-duty break generates pressure as FMCSA sought further information on drivers attempt to keep on schedule. NPRM. FMCSA proposed to require a the effect of eliminating the break 30-minute break if more than 8 Under certain circumstances, it may requirement altogether. Specifically: even push them to drive more consecutive hours of driving (instead of (1) What would be the safety impact 8 hours after coming on-duty) has aggressively than they would otherwise of eliminating the required break, have done in the latter half of the 14- passed without at least one 30-minute potentially allowing up to 11 change in duty status. This would allow hour driving window, despite the fact consecutive hours of driving? the total driving time up to that point any 30 minutes of non-driving time to (2) What has been the cost to your may have been limited by a variety of qualify as a break, i.e., on-duty (not company of complying with the 30- factors. driving) time, off-duty time, or sleeper minute break rule since the compliance Identifying causal connections berth time. Many drivers have date for that rule, July 1, 2013? between particular rules and safety interruptions of their driving time (3) How often do work shifts require outcomes is difficult, many factors play during normal business operations, such an individual to drive more than 8 a role in most crashes, and separating as loading or unloading a truck, hours without at least a 30-minute their individual contribution is often completing paperwork, or stopping for change in duty status? fuel. (4) Would eliminating the break impossible. The best evidence on the Under the current rules, the break is: requirement result in greater cost effect of breaks is provided by the 2011 (1) Required to be off-duty time during Blanco study, discussed in the NPRM savings than the current proposal? If so, 18 which no work, including paperwork, what would be the amount of these cost and elsewhere in this rule. While may be performed, and (2) triggered savings? 18 Commenters Supporting the Proposed ‘‘The Impact of Driving, Non-Driving Work, after 8 hours on-duty time, regardless of and Rest Breaks on Driving Performance in the time spent driving. The flexibility Revision. Numerous commenters, Commercial Motor Vehicle Operations.’’ Blanco, provided by the NPRM would have including individual commenters, 2011. Available in the docket for this rulemaking.

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FMCSA has concluded that both on- Some commenters, including a few FMCSA Response: FMCSA disagrees duty breaks and off-duty breaks provide industry organizations, cited research with the comments criticizing the safety benefits essentially equivalent to discussing fatigue, arguing that the 30- Agency’s use of SCEs. SCEs are a those produced by an off-duty break (as minute break must be off-duty to ensure commonly used crash surrogate in well as productivity benefits), the that a driver will physically rest. The traffic safety and naturalistic driving Blanco study demonstrates that breaks Truck Safety Coalition, et al. cited research. Crash surrogates are safety- of at least 30 minutes—whether on or evidence saying that ‘‘driving time that related events (e.g., time to collision, off-duty—reduce SCEs in the hour after occurred later in the driver’s workday, lane deviations, near crashes, etc.) used driving resumes. due to performing nondriving tasks to evaluate crash potential and FMCSA notes that many of the earlier in the workday, had a negative probabilities. Crash surrogates have commenters who opposed a break of safety effect.’’ 19 been extensively used in the traffic any kind provided inconsistent Advocates argued that many of safety research domain. There is a long arguments. For example, the National FMCSA’s claims, reasoning, and history of methodologically diverse Association of Small Trucking examples presented for the proposed transportation studies that used crash Companies quoted with approval a long- changes to the 30-minute break are not surrogates as dependent variables. Crash time member who said that ‘‘99.9 valid, deeply flawed, inapplicable, and surrogates are regularly used by research percent of all drivers will take a break lack explanation and/or analysis. organizations worldwide, including an of more than 30 minutes in any given FMCSA Response: After reviewing the active research community affiliated 8-hour period’’ and therefore ‘‘the 30- comments, FMCSA has not changed its with the Transportation Research Board minute mandatory break should conclusion that it should allow the 30- (TRB) of the National Academies of disappear.’’ But if drivers routinely take minute break to be met either by on- Sciences, Engineering, and Medicine 30-minute breaks during the work shift, duty, not-driving time or by off-duty (National Academies) on this topic. The as others have also noted, neither the time. Also, the Agency concludes it is Subcommittee on Surrogate Measures of previous break nor the amended break appropriate to allow drivers the Safety, sponsored by the TRB requirement adopted today could be as discretion to take the 30-minute break at Committee on Safety Data Evaluation disruptive as many commenters have any point in the 8 hours after they start and Analysis, meets regularly to discuss claimed. Furthermore, a large number of driving. Blanco, et al. (2011) found that issues pertaining to crash surrogates. commenters asserted that they should the 1-hour window after a break from The goal of the subcommittee is to be allowed to take breaks when they feel driving is associated with a significant examine the suitability and use of tired, not when an inflexible rule reduction in SCE rate compared to the surrogate measures of safety to address requires a break. Leaving aside the fact 1-hour window before a break.20 The the lack of available crash data. One that the FMCSRs never prevent drivers study found that any type of break was output of this subcommittee is a from taking breaks, many of these beneficial to the driver, whether the document that provides an overview of comments imply that the 30-minute break consisted of work activities or how surrogate measures are defined and break typically interrupts drivers’ rest. To counter the effects of driving used in transportation research.21 schedules at the 8th hour. In fact, both time that occurred later in the driver’s Although the features of SCEs can the previous regulations and this final workday, the Soccolich article stated vary based on the research question rule allow drivers to take a break at any ‘‘breaks were found to be a successful posed in a particular study, an SCE has point during an 8-hour period, offering countermeasure to address the negative been defined as a ‘‘crash, near-crash, latitude to select a convenient time. effects of time-on-task.’’ crash-relevant conflict, or unintentional Exemptions from the 30-minute break Estimating a Change in SCEs with the lane deviation’’ that often has a previously granted by FMCSA do not 30-Minute Break. The NPRM requested measurable kinematic signature, imply that the rule is ineffectual, as comments regarding how to estimate the including longitudinal and lateral some commenters claimed, but rather change in SCEs from this temporal shift acceleration, yaw rate, and active safety that certain operations already include in the 30-minute break. Safety for the system activations.22 SCEs, such as significant break time; require driver Long Haul Inc. provided research and near-crashes, are used in various attendance when transporting data sources, arguing that SCEs are no transportation modes. In rail, SCEs are hazardous cargo without other work, longer a valid safety measurement and defined as ‘‘risk to the health and safety similar to § 395.1(q); depend on oversize that FMCSA should choose another of any individual or risk of damage or vehicles which, because of their method of estimation. Safety for the destruction to any property, or any unusual size, are difficult to park for a Long Haul Inc. also commented on incident which may reduce the safety or break; or involve the transport of live Naturalistic Driving (ND) Mixed-SCE integrity levels of any item of Railway animals that could be endangered by a Methodology studies, arguing that Infrastructure.’’ 23 The FAA also relies break. current SCE datasets are invalid, and Commenters Opposed to the Proposed that the SCE definition should be 21 ‘‘Surrogate Measures of Safety’’, Tarko, Davis, Revision. Some individuals and drivers reconsidered. No other comments were Saunier, Sayed, and Washington, 2009. Available at stated, without further explanation, that https://www.semanticscholar.org/paper/Surrogate- received regarding the use of SCEs. Measures-of-Safety-Tarko-Davis/30801fa815159 the 30-minute break should remain as dad645eed6f1e3dbbbba2f30150, last accessed off-duty time. Some individual 19 Soccolich, S., Blanco, M., Hanowski, R., Olson, January 21, 2020. commenters and drivers said they did R., Morgan, J., Guo, F., & Wu, S.C. (2013) ‘‘An 22 ‘‘The Risk of a Safety-critical Event Associated not want to allow an on-duty 30-minute analysis of driving and working hour on with Mobile Device Subtasks in Specific Driving commercial motor vehicle driver safety using Contexts’’, Fitch, Hanowski, Guo, 2014. https:// break because: naturalistic data collection.’’ Accident Analysis & vtechworks.lib.vt.edu/bitstream/handle/10919/ • Drivers would have to adjust Prevention, Volume 58, 2013, Pages 249–258. 49687/NSTSCE%20Final%20Report%20for schedules. 20 Blanco, M., Hanowski, R., Olson, R., Morgan, %20Cognitive%20Distraction.pdf and https:// • Managers might abuse the on-duty J., Soccolich, S., Wu, S.C., & Guo, F. (2011) ‘‘The www.annualreviews.org/doi/abs/10.1146/annurev- break. Impact of Driving, Non-Driving Work, and Rest statistics-030718-105153, last accessed January 21, • Breaks on Driving Performance in Commercial 2020. Taking the break on-duty could Motor Vehicle Operations.’’ Available in this 23 https://www.lawinsider.com/dictionary/safety- fatigue drivers. rulemaking docket. critical-event, last accessed January 21, 2020.

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on crash surrogates, including near driving research includes: University of fewer breaks from driving under the midair collisions. As outlined in the Michigan Transportation Institute; the proposed change and when those breaks Aeronautical Information Publication, Pennsylvania State University; would occur. Survey results from crash surrogates identify unsafe University of Iowa; University of OOIDA indicate that its members did conditions, allowing issues to be California; the Virginia Tech not anticipate taking fewer breaks as a corrected before they lead to crashes Transportation Institute (VTTI); the result of the proposed changes. Other and other incidents.24 Volpe National Transportation Systems commenters said that they would not SCEs and crashes have common Center; SAFER Vehicle and Traffic change their schedules. A commenter characteristics (e.g., kinematic Center in Sweden; SWOV Institute for involved in local operations did not signature), but SCEs occur with greater Read Safety Research in The expect any impact on the frequency or frequency than crashes. As crashes are Netherlands; and several European timing of breaks. The National Propane rare events, studying SCEs allows consortium projects including UDRIVE, Gas Association thought the changes researchers to gain insight into the INTERACTION, PROLOGUE, DaCoTA, would allow a rest break later in the factors that lead to crash genesis. The and 2–BE–SAFE.29 driver’s route, relieving some driving- National Academies advocated several Thus, the use of crash surrogates in related fatigue. principles to determine the validity of understanding traffic crashes is nothing Some commenters said that additional using specific types of SCEs as crash new, but rather a well-established and flexibility would increase their ability to surrogates.25 Use of SCEs is warranted acceptable approach in understanding plan the required break times around if: (1) It can be shown the SCEs have crash genesis across multiple deliveries, and thus increase their causal factors identical to those of transportation modalities. Furthermore, efficiency. For example, representatives crashes, and (2) there is a strong naturalistic driving research is widely from the propane industry noted that correlation in the frequency of SCEs used, by many research organizations in these changes would increase their over different driving scenarios. To both the USA and internationally, and ability to respond to short-term illustrate these principles in practice, a is an accepted, valid method for fluctuations in demand, such as holiday study found that near crashes provided studying traffic safety. times, extreme cold spells, and the useful information for the risk of Changes to Schedules due to the 30- recent corn crisis in the Midwest. Some distraction while driving.26 A different Minute Break Changes. In the NPRM, other commenters, however, believed study found g-force thresholds were a FMCSA asked if drivers would take that these changes would not have any good predictor of crash risk.27 impact on scheduling. ACPA noted that Crash surrogate research has a long 29 ‘‘Characteristics of turn signal use at the current requirements for an off-duty history in surface transportation safety intersections in baseline naturalistic driving.’’ break affect its members’ ability to that can be traced back to the 1960’s. Sullivan, Bao, Goudy, and Konet, 2015. https:// efficiently schedule concrete deliveries. For example, ‘‘Traffic Conflict’’ has been dx.doi.org/10.1016/j.aap.2014.10.005, Last accessed FMCSA Response: The comments February 6, 2020. ‘‘Screening Naturalistic Driving used in many studies as a measure of Study Data for Safety-Critical Events.’’ Wu and received on this question show that the crash potential, and the Federal Jovanis, 2013. https://doi.org/10.3141/2386-16 Last changes to the 30-minute rule are not Highway Administration developed accessed February 6, 2020. ‘‘Prevalence and likely to have an adverse impact on ‘‘guidelines to diagnose safety and Distribution of Young Driver Distraction Errors in safety because the changes would not Naturalistic Driving.’’ Carney, McGehee, and Reyes, operational problems and evaluate the 2014. https://www.ppc.uiowa.edu/publications/ significantly decrease the number of effectiveness of safety countermeasures, prevalence-and-distribution-young-driver- breaks being taken by drivers. Based on ‘Traffic Conflict Techniques for Safety distraction-errors-naturalistic-driving, Last accessed the feedback provided during the public and Operations.’ ’’ 28 Many research February 6, 2020. Ohn-Bar, Martin, Trivedi, 2013. listening sessions and the written ‘‘Driver hand activity analysis in naturalistic organizations, both in the USA and driving studies: challenges, algorithms, and comments provided by individuals internationally, use SCEs in their experimental studies.’’ https://cvrr.ucsd.edu/ identifying themselves as drivers, the naturalistic driving studies. A sample of publications/2013/hand_JEI13.pdf, Last accessed Agency believes drivers routinely take organizations involved in naturalistic February 6, 2020. ‘‘Estimating Crash Risk. breaks during their work shifts. While Ergonomics in Design: The Quarterly of Human Factors Applications.’’ Dingus, Hanowski, and those off-duty breaks may be less than 24 _ https://www.faa.gov/air traffic/publications/ Klauer, 2011. ‘‘Distracted Driving and Risk of Road 30 minutes in duration, and other _ _ _ _ atpubs/aip html/part2 enr section 1.16.html, last Crashes among Novice and Experienced Drivers.’’ breaks may be recorded as on duty/not- accessed January 21, 2020. Klauer et al., 2014. https://www.nejm.org/doi/full/ driving, they have and will continue to 25 ‘‘Commercial Motor Vehicle Driver Fatigue, 10.1056/NEJMsa1204142, last accessed February 6, take place. FMCSA emphasizes that the Long-Term Health and Highway Safety; Research 2020. ‘‘Exposure-risk analysis of large truck Needs.’’ Rizzo et al., 2016. https:// naturalistic driving data’’ https://trid.trb.org/view/ only drivers who are no longer required books.google.com/books?hl=en&lr=&id= 1156430, last accessed February 6, 2020. to take a 30-minute break under this zEnnDAAAQBAJ&oi=fnd&pg=PR1&dq= ‘‘Naturalistic Study of Truck Following Behavior.’’ provision are drivers who drive for less The+National+Academies+Rizzo, Knipling, et al. (2005). https://trid.trb.org/view/ than 8 hours in a day and who are +Matthew+2016&ots=U7c3zm0EN4&sig= 1156430. ‘‘Naturalistic Study of Truck Following lwF1gq6CttdIOtsIV0C8puIE-kI#v=onepage&q=The Behavior.’’ Nodine, Lam, Yanagisawa, and Najm, therefore unlikely to accumulate the %20National%20Academies 2017. https://doi.org/10.3141/2615-05, last accessed levels of fatigue necessitating a %20Rizzo%2C%20Matthew%202016&f=false, last February 6, 2020. ‘‘Analysis of Naturalistic Driving mandatory 30-minute break in addition accessed January 21, 2020. Study Data: Safer Glances, Driver Inattention, and to breaks that naturally occur during 26 ‘‘Near Crashes as Crash Surrogate for Crash Risk.’’ Victor, et al., 2015. https:// Naturalistic Driving Studies’’ Guo, F., Klauer, S.G., www.researchgate.net/publication/281107412_ their workday. Hankey, J.M., Dingus, T.A. (2010) https://doi.org/ Analysis_of_Naturalistic_Driving_Study_Data_ FMCSA believes the increased 10.3141/2147-09, last accessed February 7, 2020. Safer_Glances_Driver_Inattention_and_Crash_Risk, scheduling flexibility afforded to drivers 27 ‘‘Do Elevated Gravitational-Force Events While last accessed February 6, 2020. ‘‘Exploring with these changes may increase their Driving Predict Crashes and Near Crashes? application areas for naturalistic driving American Journal of Epidemiology. observation studies: potential for research on ITS.’’ efficiency, but is unlikely to 2012;175(10):1075–1079.’’ Simons-Morton et al., van Nes, N., Backer-Grondahl, A., and Eenink, R., significantly affect driving hours or the 2012. https://doi.org/10.1093/aje/kwr440, last 2010. https://www.swov.nl/en/publication/ amount of work completed in a shift. accessed February 6, 2020. exploring-application-areas-naturalistic-driving- The changes will give drivers greater 28 ‘‘Traffic Conflict Characteristic-Accident observation-studies-potential-research, last Potential at Intersections.’’ Perkins and Harris, accessed on February 6, 2020. http:// ability to plan their breaks, and allow 1968. https://www.trid.trb.org/view/1310479, last www.udrive.eu/files/SWOV_Factsheet_ for on-duty activities such as time spent accessed February 6, 2020. Naturalistic.pdf, last accessed on January 21, 2020. at loading docks to fulfill the break

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requirement. This increased flexibility 8 hours driving, and most of those or more would need to have been could increase VMT for an individual drivers would continue to take an off- truncated for an off-duty break after 8 driver during a given shift, but would duty break. hours of on-duty time. As noted above, affect only the amount of work A few trade associations said that the FMCSA analyzed data on work hours performed in shifts taking more than answer would change for each from VTTI and found that less than four 13.5 hours to complete. This is because individual driver due to personal percent of all shifts surpass the 13.5- the 30-minute break during a shift that scheduling choices. TruckerNation hour limit where they would be is less than 13.5 hours would not result stated that the opportunity to use on- impacted by the proposed changes.32 in reaching the 14-hour limit, and thus duty, not driving time as a 30-minute For truckload (TL) drivers, FMCSA would not limit the amount of work break would encourage and incentivize does not expect that the proposed performed. drivers to use their break when they changes would allow drivers to FMCSA analyzed recent data from might otherwise be interrupting the complete additional deliveries. One way VTTI and found that shifts that ran 13.5 driving task. that the proposed changes may affect hours or more comprise less than four Conversely, a few drivers said they work hours is that, if a driver has a run percent of all shifts.30 For these shifts would not take a break if they were that requires more than 13.5 hours of that do require more than 13.5 hours of driving less than 8 hours. duty time to complete, the new break duty time to complete, the new break FMCSA Response: Although the requirements may allow completion of requirements may allow for a shift to be comment responses were almost equally the run in one day rather than having it completed on time rather than carry split, the Agency believes most drivers carry over to the next duty period. In over to the next duty period. However, who drive for fewer than 8 hours would contrast to TL drivers, the proposed FMCSA does not anticipate that take some sort of break during the work changes may enable less-than-truckload increasing a given shift by 30 minutes shift due to the naturally occurring (LTL) drivers to add additional breaks (such as when cargo is loaded or of on-duty time would enable motor deliveries to their routes or shift unloaded) that occur during the carriers to meaningfully increase deliveries from one driver to another. workday. FMCSA believes the on-duty aggregate VMT. FMCSA notes that The Agency, however, does not have breaks from the time on task would be ACPA members currently operate under any data or information to suggest that beneficial and the Agency encourages an exception that allows for on-duty the proposed changes would result in an drivers to take a break irrespective of time (i.e., the drivers are not necessarily increase in the aggregate number of whether they have been operating the free to leave the work site to pursue deliveries or the amount of freight activities of their own choosing) to vehicle for 8 consecutive hours. Comments About the Impact of the moved in the LTL sector. Therefore, fulfill the 30-minute off-duty break as FMCSA has not estimated a change in 31 30-Minute Break on VMT. FMCSA asked long as no work is being performed. VMT or deliveries resulting from the This final rule will allow for ACPA whether the changes to the 30-minute break provision would result in drivers final rule. members to work under the same Total Elimination of the Break. The conditions as provided by this increasing their VMT or driving hours. Commenters responded that the NPRM asked a series of questions about exception, and thus FMCSA does not changes to the 30-minute break. expect any changes in the scheduling proposed changes would increase the (1) What would be the safety impact abilities of concrete pumping flexibility to plan their schedules. of eliminating the required break, operations. Therefore, FMCSA did not Commenters were divided, however, on potentially allowing up to 11 estimate impacts resulting from changes how this increased flexibility would consecutive hours of driving? to schedules or planning that may result affect driving and work time. OOIDA Some commenters argued that drivers from the final rule. believes that increased flexibility would Impact on Individuals Driving Less improve driving efficiency, thus rarely drive for the full 11 hours, and than 8 Hours. The NPRM proposed that allowing drivers to increase VMT while that there was thus no need for a 30- the break occur no later than after 8 not increasing driving hours. Some minute break rule. Drivers and carriers hours of driving, and the Agency asked commenters, including industry also noted that drivers take bathroom drivers who drive less than 8 hours if associations, believe that this change and food breaks within their 11-hour they anticipated taking breaks, even would allow drivers to add additional driving window, regardless of a though it would not be required. deliveries to their shift. Still others, mandated break. A few individuals and trade including drivers and an industry Several commenters questioned the associations said drivers would still take association, believe that this change safety of eliminating the 30-minute a break with less than 8 hours of would not have a significant impact on break. The NSC cited research showing driving. Several commenters said they VMT, driving hours, or the number of that the longer people are required to would take their break off-duty if deliveries completed by drivers in a perform a task, the more their cognitive driving less than 8 hours. Several others shift. and physical functions (attention, said they would take their break on-duty FMCSA Response: FMCSA disagrees speed, and accuracy) decline. Road Safe if driving less than 8 hours. IBT said with commenters that the increased America argued that the break is more than half of its survey respondents flexibility afforded to drivers by these important for safety, noting research would take their 30-minute break as off- changes will increase aggregate VMT. included in the 2011 HOS rule which duty time even if less than 8 hours of FMCSA does not expect the changes to found that crash risk was elevated with driving time had passed since their last increase significantly driving hours or fatigue. Citing numerous studies, change in duty status. the number of deliveries that drivers can Advocates argued that the body of OOIDA provided survey statistics complete in a shift. Due to the 14-hour research shows that longer driving showing that over 50 percent of survey window for an on-duty day, the only hours are directly related to increased respondents anticipate that drivers way that the proposed changes would crash risks from at least the 7th through would still take a break with less than affect the amount of work completed in the 11th consecutive hour of driving. a shift is if the shift would have IBT, citing research, claimed that as pay 30 See the RIA for more details. required more than 13.5 hours. Under 31 83 FR 54975, November 1, 2018. the previous rules, shifts of 13.5 hours 32 See the RIA for more details.

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per hour increases, but work hours time. Drivers are compelled to take an said that more flexibility would allow decrease, and safety increases. additional break that has no added them to complete their work for the day OOIDA, on the other hand, said value. CVSA noted that the rule is hard earlier and get home sooner. IBT eliminating the break would allow to enforce and that evidence for its commented that its survey respondents drivers to more safely identify and safety benefits is not clear. indicated that a 30-minute break is schedule opportunities to rest at truck FMCSA Response: The changes to the necessary to reduce fatigue and that stops and other locations for safe 30-minute break rule are adopted as carriers are likely to use the proposal to parking. CVSA said it does not believe proposed in the NPRM. FMCSA pressure drivers to use breaks to work. there is evidence that the 30-minute continues to believe that 11 consecutive TruckerNation reasoned that, with or break improves safety. A few motor hours of driving should not be allowed, without the 30-minute break carriers and individual drivers said that even though relatively few drivers may requirement, drivers are still going to the 30-minute break forced them to pull undertake such runs. The Blanco study, stop for various reasons, including to over at inopportune or dangerous times. discussed elsewhere in this final rule, refuel, eat, check load securement, and (2) What has been the cost to your shows that breaks reduce SCEs in the use rest areas. company of complying with the 30- hour of driving after a break. However, FMCSA Response: FMCSA agrees that minute break rule since the compliance because that study did not clearly the increased flexibility that could have date for that rule, July 1, 2013? demonstrate a significant difference been afforded by the elimination of the OOIDA said the cost of the rule is a between off-duty and on-duty breaks, 30-minute break may have had the mile per minute, costing drivers 30 the Agency is allowing drivers the potential for increasing the efficiency of miles per break, in addition to causing discretion to take either type of 30- drivers but would have been unlikely to longer days, late deliveries, and minute break at any point before the 8th affect significantly driving hours or the emotional stress. The American Moving consecutive hour of driving. Some of the amount of work completed in a shift. and Storage Association responded that commenters who oppose the break This is, as noted above, because an eliminating the 30-minute break could requirement admit that an on-duty break increase in work is only likely for those provide a full extra workday for drivers provides real-world advantages since it shifts taking more than 13.5 hours of each month and save $10,000 per month allows drivers to perform routine but duty time to complete. in labor costs. necessary non-driving tasks, such as Alternatives to the Single 30-Minute (3) How often do work shifts require refueling, instead of sitting idle and Break. Many commenters, mostly an individual to drive more than 8 frustrated, while the clock ticks off 30 individuals and drivers, argued that the hours without at least a 30-minute minutes. Although many commenters 30-minute break should be split up into change in duty status? implied—erroneously—that the 10- or 15-minute periods to increase OOIDA commented that previous rule required a break at a flexibility. Some drivers said only 15 § 395.3(a)(3)(ii) requires drivers to take a specific time, the rule adopted today minutes were needed to refuel, do a 30-minute off-duty break if more than 8 will enable drivers who already take on- load check, or use the restroom, arguing hours have passed since the end of their duty (or partially on-duty) 30-minute that 30 consecutive minutes was an last off-duty or sleeper berth period. breaks earlier in their shift to use those unnecessary regulation. (4) Would eliminating the break breaks in fulfillment of the requirement. OOIDA, a few other industry requirement result in greater cost Finally, this final rule is easily associations, and motor carriers also savings than the current proposal? If so, enforceable, as ELD records show said the 30-minute break should be split what would be the amount of these cost whether a vehicle is in motion or up into shorter periods of the drivers’ savings? stopped. choosing. OOIDA cited driver surveys, OOIDA responded that eliminating While OOIDA argued that the cost of saying most drivers preferred splitting the break requirement outright would the 30-minute break is the driver’s per- the break into smaller periods to result in greater cost savings and safety mile rate times the 30 minutes he or she increase driver performance and benefits than the current proposal at an is not allowed to drive (at an assumed alertness. A driver and Truckers for a estimated cost savings of one mile per 60 mph), this statement does not Cause both cited research that sedentary minute. OOIDA supported the proposed provide a basis for a macro-economic behavior is a health risk, and drivers 30-minute on-duty option, but would estimate, since there are no data on the should be encouraged to stop multiple prefer elimination of the break. number of drivers who drive beyond the times to increase circulation. The question about the value of a 30- 8th hour, the average per-mile rate for FMCSA Response: FMCSA minute break elicited sharp truck transportation, or the average acknowledges that multiple breaks may disagreement between safety groups and speed of CMV operations. OOIDA’s be desirable to commenters but notes IBT on the one hand and industry conclusion that eliminating the break that the structure of these breaks would representatives and CVSA on the other. requirement would generate net benefits add unnecessary complexity to The former cited studies showing that is therefore speculative at best. In any compliance monitoring. The Agency fatigue increases and cognitive abilities case, FMCSA believes CMV operators also emphasizes that many drivers will decline with time on task. They argued should not drive more than 8 hours no longer be obligated to take a break, that eliminating the 30-minute break without a 30-minute time off-task break. and that, if a driver wishes to take more requirement would potentially allow up New Opportunities If the 30-Minute frequent, shorter, breaks in addition to to 11 consecutive hours of driving, with Break Were Eliminated. The NPRM the mandatory break, he or she is free significantly increased safety risks. The asked drivers how they planned to to do so. latter said the rule increases stress as spend additional time if the 30-minute drivers try to complete a run before the break was totally eliminated. A few 6. Split Sleeper Berth end of the 8th hour, with adverse effects respondents said they would spend NPRM. FMCSA proposed to modify on safety. Furthermore, they claim that more time at home with the more the sleeper berth rule that allows drivers the rule is unnecessary because most flexible 30-minute break, while others to satisfy the required 10 hours off-duty drivers take at least a 30-minute break said they would perform non-driving by taking two off-duty periods, provided during the workday, though some of tasks, and have time for extra deliveries. that neither period is less than 2 these breaks combine on- and off-duty Most respondents to the OOIDA survey consecutive hours and one period

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consists of at least 7 consecutive hours • Soccolich 2015.37 There is no need to repeat the in the berth, and to allow both periods • Mitler 1997.38 discussion of these studies included in to be excluded from the 14-hour driving • Hanowski 2007.39 the preamble to the NPRM. Since window.33 This sleeper berth exception • Van Dongen 2013.40 Advocates responded with extensive • 41 would provide drivers greater Dinges 2017. quotations from the same studies, we • 42 operational flexibility, while affording Sieber 2014. have also refrained from repeating their • 43 them opportunity to obtain the Maislin 2001. comments here. FMCSA’s responses to • 44 necessary amount of restorative sleep. Wylie 1998. • 45 Advocates’ concerns are summarized Motor carriers and other stakeholders Caldwell 1997. • 46 below. were encouraged to submit driver record Garbarino 2004. • Sallinen 1997.47 FMCSA Response: FMCSA data supporting their comments in a • Moore-Ede 1996.48 acknowledges that the studies cited manner that would not reveal the above do not focus on the specific identity of an individual driver. Given 37 Soccolich, S., Hanowski, R., & Blanco M., 2015. parameters of the NPRM’s sleeper berth research showing that many drivers Evaluating the Sleeper-berth Provision: proposal. Nonetheless, these studies typically sleep a little more than 6 Investigating Usage Characteristics and Safety- provide valuable information that consecutive hours, FMCSA also Critical Event Involvement. (Report No. 17–UI– supports the safety rationale for requested comments and any supporting 046). Available at https://vtechworks.lib.vt.edu/ handle/10919/73954 Last accessed June 20, 2019. retaining the basic framework of the data on the possibility of a 6- and 4-hour Soccolich, S., Hanowski, R., & Blanco M., 2015. current HOS requirements, with certain split break. Specifically, FMCSA asked: Evaluating the Sleeper-berth Provision: revisions. The basic framework, • How often do you use the sleeper Investigating Usage Characteristics and Safety- excluding recordkeeping requirements, berth provision under the current Critical Event Involvement. (Report No. 17–UI– 046). Available at https: consists of an 11-hour limit on driving regulations? Would you use the sleeper 38 Mitler, M.M., Miller, J.C., Lipsitz, J.J., Walsh, time following 10 consecutive hours off- berth provision more or less if the J.K., Wylie, C.D, 1997. ‘‘The Sleep of Long-Haul duty and a prohibition on driving after proposed changes are finalized? How Truck Drivers,’’ New England Journal of Medicine, an individual has accumulated 14-hours much more or less? 337, 755–761. Available in the docket for this of on-duty time during a work shift. • How would this provision change rulemaking. 39 Hanowski, R.J., Hickman, J., Fumero, M.C., That framework also prohibits drivers your scheduling and planning? Olson, R.L., Dingus, T.A., 2007. ‘‘The Sleep of from driving after accumulating either • How often would you utilize the 7– Commercial Vehicle Drivers Under the 2003 Hours- 60 or 70 hours of on-duty time in 7 or 3 hour split during an average week? of-Service Regulations,’’ Accident; Analysis and 8 days respectively, but permits them to • Would you expect to get the same Prevention, 39(6), 1140–5. Available in the docket for this rulemaking. restart their 60- or 70-hour ‘‘clock’’ by amount of sleep in the 7-hour period as 40 Van Dongen, H.P.A. & Mollicone, D.J., 2013. taking at least 34 consecutive hours off in the current 8-hour period? ‘‘Field Study on the Efficacy of the New Restart duty. In addition, the HOS framework • Would you expect to drive more Provision for Hours of Service,’’ (FMCSA–RRR–13– allows drivers who use sleeper berths to miles or hours based on this change? Do 058). Washington, DC: FMCSA. Available in the split the required 10 off-duty hours into you expect to be able to complete docket for this rulemaking. 41 Dinges, D.F., Maislin, G., Hanowski, R.J., two periods, with the longer (in the additional ‘‘runs’’? Mollicone, D.J., Hickman, J.S., Maislin, D., Kan, K., berth) of sufficient length to allow Specific Comments on Research. Hammond, R.L., Soccolich, S.A., Moeller, D.D., and meaningful rest. Advocates argued that the split sleeper Trentalange, M., 2017. ‘‘Commercial Motor Vehicle berth proposal was inappropriate in (CMV) Driver Restart Study: Final Report,’’ After reviewing the research reports (FMCSA–RRR–15–011). Washington, DC: FMCSA. referenced in the NPRM and the view of research the Agency relied upon Available in the docket for this rulemaking. in previous HOS rulemakings. 42 Sieber,W K.., Robinson, C.F., Birdsey, J., Chen, Advocates’ comments about them, Advocates also disagreed with FMCSA’s G.X., Hitchcock, E.M., Lincoln, J.E., Akinori, N., & FMCSA reaffirms its assessment that the assertions concerning the relevance of Sweeney, M.H., 2014. ‘‘Obesity and Other Risk changes adopted in this final rule will Factors: The National Survey of U.S. Long-Haul not decrease safety. The rule provides certain studies cited in the NPRM Truck Driver Health and Injury,’’ American Journal preamble. The specific studies of Industrial Medicine, 57, 615–626. Available at additional flexibility that is neither Advocates discussed are listed below: https://www.ncbi.nlm.nih.gov/pubmed/24390804. contrary to the research cited nor • Mollicone 2007.34 (Accessed January 4, 2019). inconsistent with the framework • Belenky 2012.35 43 Maislin, G., Rogers, N.L., Price, N.J., described above. • 36 Mullington, J.M., Szuba, M.P., Van Dongen, H.P.A., Short 2015. and Dinges, D., 2001. ‘‘Response Surface Modeling The most relevant research addresses of the Effects of Chronic Sleep Restriction With and interstate CMV drivers, followed by 33 This rulemaking does not address sleeper berth Without Diurnal Naps,’’—Report. Available in the studies of other types of workers with provisions unique to the drivers of CMVs docket for this rulemaking. safety-sensitive duties in settings where 44 Wylie, D., 1998. ‘‘Commercial Motor Vehicle transporting passengers, 49 CFR 395.1(g)(3). fatigue could have similarly adverse 34 Mollicone, D.J., Van Dongen, H.P.A., Dinges, Driver Drowsiness, Length of Prior Principal Sleep D.F., 2007. ‘‘Optimizing Sleep/Wake Schedules in Periods, and Naps,’’—Report. Available in the driving consequences. The Agency Space: Sleep During Chronic Nocturnal Sleep docket for this rulemaking. could not control, but always kept in Restriction With and Without Diurnal Naps,’’ Acta 45 Caldwell, J.S., et al., 1997 ‘‘The Efficacy of mind, the demographics of the study Astronautica, 60, 2007. 354–361. Available in the Hypnotic-Induced Prophylactic Naps for the subjects and the extent to which their docket for this rulemaking. Maintenance of Alertness and Performance in 35 Belenky, G., Jackson, M.L., Tompkins, L., Sustained Operations,’’—Report. Available in the schedules were comparable to segments Satterfield, B., & Bender, A., 2012. ‘‘Investigation of docket for this rulemaking. of the motor carrier industry. the Effects of Split Sleep Schedules on Commercial 46 Garbarino, S., et al., 2004. ‘‘Professional Shift- Vehicle Driver Safety and Health,’’ Washington, DC: Work Drivers Who Adopt Prophylactic Naps Can For example, the average age of the FMCSA. Available in the docket for this Reduce the Risk of Car Accidents During Night subjects in the Mollicone study was 29.3 rulemaking. Work,’’—Report Abstract. Available in the docket years (ranging from 21 to 49), versus the 36 Short, M. A., Agostini, A., Lushington, K., & for this rulemaking. average age of 46.9 among truck drivers, 47 ˚ Dorrian, J., 2015. ‘‘A Systematic Review of the Sallinen, Harma, M., Akerstedt, T., Rosa, R., as estimated by the U.S. Bureau of Labor Sleep, Sleepiness, and Performance Implications of Lillqvist, O., 1997. ‘‘Can a Short Napbreak Improve Limited Wake Shift Work Schedules,’’ Alertness in a Night Shift?’’—Report. Available in Scandinavian Journal of Work, Environment and the docket for this rulemaking. ‘‘Canalert ’95—Alertness Assurance in the Canadian Health, 41(5):425440. Available at https:// 48 Moore-Ede, M., Mitchell, R.E., Heitmann, A., Railways,’’—Report. Available in the docket for this www.ncbi.nlm.nih.gov/pubmed/26103467. Trutschel, U., Aguirre, A., Hajamavis, H., 1996. rulemaking.

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Statistics; 49 the study reported that real-world constraints, this research drivers of the opportunity to obtain the drivers sleep progressively less as they proves that split sleep is an appropriate rest they need to perform safely. get older, but the researchers did not alternative when drivers’ schedules Until this final rule, the anchor find that a 7-hour sleeper berth period cannot provide for consolidated sleeper berth period was at least 8 hours is inadequate. They compared daytime nighttime sleep. in duration. Despite that requirement, neurobehavioral performance for Advocates criticized the use of the the evidence shows that drivers individuals obtaining split sleep with Short literature review because the obtained 6 to 6.5 hours of sleep per day. that of individuals operating after a studies it examined involved maritime It is not clear why drivers do not sleep consolidated sleep period of the same and rail personnel, but not CMV drivers, longer, and there are no clear solutions total duration, albeit with study subjects and the Soccolich naturalistic study to this challenge. It is worth repeating, younger than the general driver because it compared the risks associated however, that the survey conducted by population. The results of the study with 3 restart options, including the 8/ the National Institute of Occupational indicated that sleep duration was 2 sleeper berth split, but not the Safety and Health in 2010 (as cited in largely unaffected by whether the sleep proposed 7/3 split. The design of all Sieber, 2014), and reported in the was consolidated into one period or studies inevitably imposes limits on NPRM, found that 73.5 percent of long- split between anchor sleep periods and their applicability, but that does not haul truck drivers reported sleeping naps. vitiate their conclusions. FMCSA more than 6 hours per night, compared The Agency did not use the Mollicone continues to believe that these studies with 68.9 percent of the general working study as evidence that split sleep is add to the body of evidence that split population. equivalent to consolidated nighttime work/rest cycles may be beneficial in Given the reality that many drivers sleep given that FMCSA’s HOS certain circumstances. They are among are not prone to sleep more than 6.5 regulations do not currently regulate the many reports that provide insights hours, as shown by the Dinges and Van based on time of day. The preference of into the potential fatigue mitigation Dongen studies, providing additional drivers for nighttime sleep is well benefits for a split sleeper berth flexibility for sleeper berth usage is documented—among other things, by schedule. reasonable and appropriate. Under this the rapid filling up of CMV parking The Mitler, Hanowski, Van Dongen/ final rule, any driver who wishes to end spaces in the evening—but some degree Mollicone, Dinges, and Sieber studies the sleeper berth rest period after 7 of split sleep is essential in many reported on the amount of sleep CMV hours may do so. As shown by Dinges operations. Split sleep is a viable drivers obtained at the time their and Van Dongen, this allows the driver option, provided the combined rest research was performed. Mitler and his sufficient time to obtain the amount of periods have the same duration as a colleagues found that before 2003, when sleep that the average driver receives in single consolidated rest period. the FMCSRs required only 8 hours off a single consolidated period. And, Mollicone and his colleagues did not duty between shifts and allowed sleeper nothing in this rule prohibits a driver opine on the length of the anchor period berth splits as short as 5 hours, drivers from spending more time in the sleeper and the shorter period, but their work got about 5.18 hours of sleep per night. berth. does provide a scientific basis for Hanowski, Van Dongen/Mollicone, and As noted above, studies generally continuing to allow a split-sleep Dinges reported that, under the have limitations, and the Agency did alternative. subsequent rules, which required 10 not attempt to list all of them, including FMCSA believes the Belenky study is hours off duty between shifts and for the Sieber study published in 2014. relevant to the decision-making process required a minimum 8-hour period in However, the alleged limitations of the because it provides evidence that split the sleeper berth, CMV drivers got Sieber study attributable to ‘‘self- sleep is a viable, safe alternative to somewhere between 6 and 6.5 hours of reporting’’ do not invalidate its findings consolidated daytime sleep. The 5-hour/ sleep per day. Based on a survey of when viewed in an appropriate context. 5-hour split examined by the study 1,670 long-haul CMV drivers, Sieber Absent the use of very expensive and involved no extended rest period, concluded in 2014 that ‘‘drivers are time consuming actigraphy and other unlike the 7-hour minimum sleeper likely getting more sleep than other scientific instruments to monitor berth period required by the final rule, working adults in the United States.’’ drivers’ activities, surveys are the only yet even that split produced better The response of the Advocates is cost-effective means to gather such results than consolidated daytime sleep. essentially that, whatever the recent information. The resulting data is While split sleep is not preferable to improvements in drivers’ total sleep valuable when drivers have no reason or consolidated nighttime rest in terms of time, they still are not getting enough incentive to submit inaccurate sleep quantity and quality, this does not sleep to combat fatigue, especially in a responses. mean the Agency should prohibit a split safety-critical occupation. FMCSA Although the Sieber study did not sleeper berth option and eliminate the continues to believe its discussion of report on sleep time in the sleeper berth flexibility it provides drivers. As these reports was appropriate for the or distinguish between total sleep on discussed by other commenters, context in which they were mentioned. workdays versus non-workdays, the consolidated nighttime sleep may not be Taken in context, the Mitler report findings provide yet another piece to the possible under every circumstance, highlights the shortcomings of the pre- complex puzzle concerning fatigue. though drivers clearly prefer to take the 2003 HOS requirements. This final rule Maislin and colleagues showed in longer rest period at night. provides increased flexibility while 2001 that subjects who slept for 6.2 FMCSA considers the relative benefits continuing to require a sleeper berth hours at night, combined with a nap of of even an ultra-flexible 5-hour/5-hour period of sufficient length to 1.2 hours, had lower levels of sleepiness split (which the Agency abandoned in accommodate the real-world needs of and higher levels of performance, its 2005 HOS rulemaking) to be most drivers. compared to subjects who slept shorter important in evaluating options for The Hanowski and Van Dongen/ periods without naps. The Agency cited regulatory flexibility. Considering many Mollicone, and Dinges studies highlight this finding in its 2005 final rule, but the hours of sleep that drivers obtain. concluded that an 8-hour sleeper berth 49 https://www.bls.gov/cps/cpsaat18b.htm, last The Agency has taken care not to adopt period was needed. FMCSA adopted an accessed February 6, 2020. regulatory options which would deprive 8-hour sleeper-berth requirement in

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2005 essentially out of an abundance of mostly individuals and drivers, that approximately 26 percent of drivers caution. At that time, there was no provided brief, general support for the sleep less than 6 consecutive hours per consensus on the amount of sleep changes to the split sleeper berth night and about 51 percent sleep needed to maintain cognitive provisions because they would between 6 and 8 consecutive hours per performance. The Agency therefore accomplish the following: night.50 Some drivers may find it decided to take a conservative approach • Provide greater flexibility for the difficult to sleep more than 7 and adopt the recommendation of many driver to rest. consecutive hours. However, the current researchers for a sleeper-berth period of • Encourage more drivers to take sleeper berth provision requires them to at least 8 consecutive hours. more rest breaks. be in the berth for 8 consecutive hours, • Advocates essentially charged Provide drivers the opportunity to thus, confining them to the berth for FMCSA with contradicting its previous sleep while waiting during the loading more time than many of them need for position. That is not true. While the and unloading process. sleeping. • Agency is concerned, as it was in 2005, Enable drivers to stop in safe Maislin, et al. (2001),51 cited in the to give drivers adequate opportunity to locations. preamble to the NPRM, showed that it • obtain restorative sleep, the 6.2 hours of Increase efficiency in the trucking is possible for a person to avoid sleep reported by Maislin is well within industry. physiological sleepiness or performance the 7-hour sleeper berth period allowed OOIDA commented that the proposed deficits on less than 7 hours of sleep; by this final rule. And the other 3 hours changes would no longer require drivers the subjects in these studies were of off-duty time, paired with the 7 hours to sit idle when they are capable of supplementing their sleep with longer in the berth, give drivers more than driving safely. ATA, OOIDA, and other naps later in the day. The study found adequate opportunity to take a nap of industry associations also commented that a shorter restricted anchor sleep 1.2 hours, should they feel the need to that the added flexibility would (i.e., the longer sleeper berth period) do so. improve driver rest. ATA provided combined with longer naps can reduce Similarly, the Wylie study is one of citations to research suggesting that sleepiness and performance deficits several that the Agency cited to increased flexibility would better similar to longer duration anchor sleep highlight the benefits of napping. accommodate split sleep schedules, and alone. Although Wylie’s research found that that this would improve driver health. The Agency does not believe there is napping reduced drowsiness, he Keep Trucking, Inc., a technology sufficient data to support reducing the cautioned that drowsiness (caused by company provided data on the impact of longer sleeper berth period to 6 sleep inertia) remained elevated for two traffic congestion on driving, consecutive hours, paired with another hours after napping. That does not commented that the proposed sleeper rest period of at least 4 hours, as some negate the value of naps; it merely berth provisions would allow drivers to commenters requested. A 6-hour period emphasizes that they must be used better mitigate these impacts. Other could result in average sleep periods along with a period of consolidated commenters, including industry that would not allow drivers the sleep. This final rule provides adequate associations, also said the provision opportunity to obtain 6.2 hours sleep, opportunities for both. would enable drivers to avoid critical which the average driver receives as The Caldwell, Gabarino, and Sallinen traffic periods in most major urban reported by Dinges and Van Dongen. studies help make clear that fatigue areas. Commenters Seeking Flexibility for mitigation requires education of An individual commenter supported Sleeper Berth Use Beyond the NPRM. employers and drivers to better the proposed change but recommended Numerous commenters, mostly understand the importance of properly that greater importance be placed on the individuals and drivers, argued that the using the sleeper berth anchor period 7-hour sleeper berth requirement and proposed changes concerning split and taking advantage of the shorter rest cited research in asserting the health sleeper berth do not provide enough period for napping. While the effect of and safety benefits of ensuring that flexibility. Their comments generally naps may vary, depending, in part, on drivers get 7 hours of sleep. On the emphasized the following: the point in the driver’s circadian cycle other hand, the Kentucky Driver’s • The proposed split is a confusing when they are taken, as the authors Association commented that circadian option that few understand, and even noted and Advocates reiterated, any nap rhythms differ among individuals, and fewer would properly apply. has some restorative value. Taking that greater flexibility will result in • More simplification, flexibility, and advantage of the shorter period would better rest for drivers as a result. Other options are needed. require trip planning to optimize the commenters said the NPRM • Drivers have different sleep cycles, time and location of the nap. accommodates the fact that drivers need different amounts of sleep, and FMCSA is fully aware of the frequently can sleep only 7 hours at a face unique circumstances every time limitations of the individual studies time and do not need 8 consecutive they drive. cited in the NPRM. The Agency made hours of sleep. • Drivers should be able to decide every reasonable effort to present the TruckerNation supported the when to rest. references in an appropriate context so proposed changes, but also IBT cited the Belenky study in that the studies could be viewed as recommended that FMCSA perform supporting its argument for sleeper pieces in a complex but unavoidably outreach and training to educate drivers incomplete puzzle. In fact, the lack of and enforcement authorities as to the 50 Sieber, K.W., Robinson, C.F., Birdsey, J., Chen, studies squarely applicable to the operation of the split sleeper berth rules. G.X., Hitchcock, E.M., Lincoln, J.E., Akinori, N., NPRM’s sleeper berth proposal requires FMCSA Response: As FMCSA noted and Sweeney, M.H., 2014. ‘‘Obesity and Other Risk Factors: The National Survey of U.S. Long-Haul a nuanced and holistic evaluation of in the preamble of the NPRM, many Truck Driver Health and Injury,’’ American Journal available research, combined with an motor carriers and industry associations of Industrial Medicine, 57, 615–626. Available at: understanding of motor carrier believe the current sleeper berth https://www.ncbi.nlm.nih.gov/pubmed/24390804, provisions are too rigid and that drivers last accessed January 4, 2019. operations that FMCSA is uniquely 51 do not have enough opportunities to ‘‘Response Surface Modeling of the Effects of qualified to provide. Chronic Sleep Restriction With and Without Commenters Supporting the Sleeper stop driving and take breaks when they Diurnal Naps,’’ Maislin, et al., 2001. Available in Berth Proposal. Many commenters, are fatigued. Sieber et al. (2014) reported the docket for this rulemaking.

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berth periods as short as 5 hours. An proposed changes to the split sleeper experienced in obtaining rest in a industry association asserted that more berth provision would decrease driver variety of places. flexible sleeper berth rules would result sleep. The NPRM cited several studies Dinges found that team drivers were in savings of $4 million and 60,000 that highlight the benefits of split sleep generally very successful in avoiding hours of trucker driving time along a schedules (Mollicone 2007, Belenky circumstances of extreme drowsiness.52 specific roadway. 2012, Short 2015, Soccolich 2015). Despite evidence pointing to the fact The Specialized Carriers and Rigging These studies (discussed in detail that they get a lower quality of sleep in Association commented that drivers above) found that: a moving sleeper berth, team drivers transporting over-dimensional loads • Split sleep schedules are feasible appear to compensate by spending more would especially benefit from a more and can be used to enhance the time sleeping (or at least resting) relative flexible sleeper berth split, since they flexibility of sleep/work schedules. to single drivers, and by using their are often affected by city curfews and • Participants in the consolidated backup drivers effectively. The results other local regulations. nighttime sleep and split sleep of this study support what the Agency FMCSA Response: FMCSA believes conditions obtained significantly more proposed in the NPRM. that this final rule provides sufficient total sleep time than participants in the As to the objections raised by flexibility without compromising safety. consolidated daytime sleep condition. Advocates, none of those objections Because the alternative sleeper berth This suggests that when consolidated seriously challenges the Agency’s cycles commenters sought involved nighttime sleep is not possible, split conclusions that the sleeper berth periods that were both shorter than the sleep is preferable to consolidated provisions proposed in the NPRM will average time that drivers are currently daytime sleep. enhance driver and carrier flexibility sleeping, additional research and data • Limited wake shift work schedules without adversely impacting safety. As discussed elsewhere in this notice, are needed to understand the potential were associated with better sleep and many studies show that splitting sleep safety impacts. lower sleepiness. Commenters Opposed to the Split- into shorter segments still allows people • The sleeper berth break was not Sleeper Proposal. Some commenters, to maintain health and alertness, associated with increased safety risk as mostly individuals and drivers, especially when coupled with a compared to the 10+ hour break or the disagreed with the proposal because: relatively short nap. And all surveys 34+ hour break. • The current 8/2 split suffices. show that a large majority of Americans, • The 7/3 split is not in the best The study results, taken together, including truck and bus drivers, get less interest of the driver and would allow support the use of the split sleeper berth than 8 hours of sleep per day. In fact, drivers to drive without being fully provision. the average for drivers seems to be 6.2 rested. The current sleeper berth rule to 6.5 hours. Advocates’ position that 8 Senator Murray stated that the excluded from the 14-hour driving consecutive hours of sleep is necessary proposed change will in fact greatly window the required 8-hour period in to maintain health and cognitive compromise drivers’ right to the berth. The NPRM proposed a similar alertness is inconsistent with the studies uninterrupted consecutive rest and exclusion not only for the proposed 7- that FMCSA examined as part of this asserted that the proposal would hour period in the berth, but also for the rulemaking and practical experience fragment driver sleep. AASM also shorter qualifying off-duty period of at and disregards the benefits from a more opposed the change, asserting that the least 2 hours. Advocates argued that flexible schedule with a longer nap proposed rule fails to sufficiently none of the studies cited by the Agency period (3 hours instead of 2 hours). consider the effect of reduced sleep speak to the risks of allowing drivers to Comments on Employer Abuse of the quality associated with sleep disorders operate later into their duty period. It is Split Sleeper Berth Proposal. An that are expected to occur when true that no studies examine the specific individual commenter stated that sleeping in a berth, and working longer parameters of the sleeper berth rule because the rules against coercion do hours. AASM also commented that the proposed in the NPRM, but the absence not have the proper consequences, provision failed to consider the impacts of academic research exactly on point under the proposed rule, employers of circadian misalignment that may does not prohibit the Agency from using would compel drivers to take breaks accompany 24-hour team driver its own expertise and judgment to according to the employers’ business operations. Likewise, Road Safe promulgate regulations. In this case, interests, rather than drivers’ rest needs. America commented that FMCSA FMCSA balanced the industry’s desire Truckers for a Cause commented that ignored its own studies indicating that for added operational flexibility against the proposed rule should specify that sleep quality in sleeper berths is worse its overriding responsibility for motor either sleeper berth period may only be than that at home, and that FMCSA carrier safety and concluded that the taken at times and locations of the should further study the quality of sleep shorter of the two off-duty periods driver’s choice and may not be taken at in sleeper berths. Advocates argued that would afford drivers an opportunity for a location where freight was picked up the Agency failed to address various rest sufficient to counteract any fatigue or delivered. TruckerNation supported detailed implications of the Moore-Ede effects associated with the extended the proposed provision, but argued that report, including the timing of the duty day. In fact, we believe that without language in the final regulatory sleeper berth period. exclusion of the shorter period will text explicitly stating the use of the One commenter stated that few promote more effective rest since proposed split sleeper berth provisions drivers will sleep during the shorter drivers need no longer worry that the are at the driver’s discretion, the break period and that drivers often 14-hour clock is ticking away potential regulation would allow motor carriers to cannot immediately fall asleep in revenue miles while they try to rest. require drivers to use split sleeper berth sleeper berths. The commenter stated And, unlike the ‘‘pause’’ proposed in that, under the proposed rule, many the NPRM (which the Agency has not 52 ‘‘Response Surface Modeling of the Effects of truckers will be driving with less than adopted in this final rule for reasons Chronic Sleep Restriction With and Without explained elsewhere in the preamble), Diurnal Naps.’’ Maislin, G., Rogers, N.L., Price, N.J., 6 hours of sleep in a 24-hour period. Mullington, J.M., Szuba, M.P., Van Dongen, H.P.A., FMCSA Response: The Agency has this measure is available only to drivers and Dinges, D., 2001. Report. Available in the reviewed comments that suggest the who use sleeper berths and are thus docket for this rulemaking.

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provisions and enable ‘‘rampant issues that two separate 4-hour blocks of sleep ‘‘nap’’ periods (thus allowing three of driver coercion.’’ Knight-Swift is ‘‘a natural process with a biological breaks totaling 10 hours). Transportation Holdings, Inc. also basis,’’ TruckerNation argued that the FMCSA Response: Splitting the 10 off- expressed concern that the proposed use of the 6/4, 4/6, and 5/5 splits would duty hours required by the HOS rules change could be exploited whereby a be inherently safer than the current HOS into 6 hours in the sleeper berth and 4 driver is impelled or compelled to cut split.53 hours off-duty would give drivers short his or her break to resume driving. Advocates argued that the Agency has additional flexibility, as many drivers FMCSA Response: The Agency confused the amount of sleep drivers are requested, but none of the supporters of believes adequate protections are able to regularly obtain under the a 6/4 split cited research demonstrating already in place to protect drivers from current rules with the amount of sleep the safety of that option. coercion. Based on the definition in that is sufficient to combat fatigue. They The results generated by decades of § 390.5T, coercion is essentially limited cited two studies and argued that, when research on sleep and fatigue are to situations where drivers are not constrained by work schedules, strikingly variable. Although it would compelled to operate CMVs in violation drivers tend to obtain more sleep than be an exaggeration to say that a sleep of certain DOT regulations, including 6 consecutive hours during longer study can be found to justify almost any the FMCSRs. Accordingly, the situations periods of time off-duty, which they regulatory position, it is true, as many described by commenters do not said is counter to the basis FMCSA used commenters have pointed out, that the amount to coercion unless drivers are to justify the 7/3 and 6/4 split options. design of a study often makes its required to operate CMVs when they In addition to commenters responding findings difficult to apply in a broader claim it would be unsafe to do so based to the question about the 6/4 split some context. In fact, it is doubtful that any on their level of fatigue, and are commenters suggested other alternatives study could adequately capture the threatened with the adverse business or to the split sleeper berth provisions, enormous range of operational employment consequences specified in including the following: environments in the motor carrier the definition for refusal to violate the • Drivers should be able to split their industry. The 1990 study TruckerNation cited FMCSRs. Motor carriers are already sleep time in other increments, to show that a 4/4 split is natural and prohibited from requiring drivers to including 5/5. unobjectionable, represents one end of operate when fatigued under § 392.3. • The rule should allow drivers to the continuum on which fatigue studies Specifically, motor carriers cannot split their sleep time any way they fall. At the other end, some studies require drivers to operate CMVs while choose. appear to show that 8 consecutive hours the driver’s ability or alertness is so • The rule should allow a 5/5 split for of sleep are necessary to maintain health impaired, or so likely to become team drivers. and alertness. The average for drivers in impaired, through fatigue, illness or any OOIDA commented that the proposed the motor carrier industry appears to be other cause, as to make it unsafe for him rule should allow for 5/5 and 6/4 sleep around 6.2 hours, which is similar to or her to begin or continue operations. splits, stating that 85% of its drivers Drivers are also protected under the average for Americans generally. supported either such split, with drivers provisions of the Surface Transportation FMCSA believes that the current saying they would use these splits 2.02 Assistance Act, 49 U.S.C. 31105, which requirement for 8 consecutive hours in and 1.86 times per week, respectively. authorizes the Occupational Safety and the sleeper berth is unnecessarily OOIDA said this would work better for Health Administration in the restrictive and that a 7-hour period drivers who cannot sleep more than 6 Department of Labor to take action on would achieve essentially the same hours at a time and would alleviate complaints filed by drivers who allege benefits, enabling drivers to get about truck parking congestion. OOIDA they were fired, disciplined, or the 6.2 hours of sleep they currently discriminated against for engaging in provided quotations from the Belenky obtain. But there is no clear evidence— certain protected activities, including study in its comment. to say nothing of a scientific reporting a safety violation, refusing to TruckerNation said that, to avoid consensus—that a 6-hour (or shorter) operate a CMV due to a safety issue, or confusion, the regulatory text should sleeper berth period is long enough to accurately reporting HOS violations. explicitly state that a driver can use a prevent cumulative fatigue. That is In any event, given the limited split in any order so long as the time especially obvious since drivers cannot changes to the sleeper berth exception, equals 10 hours cumulatively and the be expected to fall asleep immediately. the Agency has no reason to believe that second split resets the drive’s 14-hour The 7-hour period proposed in the current practices in the industry in clock. NPRM and adopted in this final rule terms of pressure placed on drivers are Truckers for a Cause suggested allows enough time for drivers to relax, likely to increase. Finally, nothing in regulatory text that would provide more de-compress, and obtain more than 6 this final rule is intended to negate the flexible driving schedules, stating that hours of sleep. Having examined a wide professional responsibility of drivers to its proposal would eliminate confusion range of sleep and fatigue studies, communicate with their employer about between sleeper berth and split-duty which fail to converge on a single result, their work schedules. periods. the Agency has concluded that the Comments About Alternatives to the Knight-Swift Transportation proposed 7/3 split is both scientifically 8/2 and 7/3 Splits. The NPRM requested Holdings, Inc. commented that FMCSA reasonable and responsive to the needs comments and any supporting data on should consider replacing the sleeper of the driver population for greater the possibility of a 6- and 4-hour split berth rule with an off-duty requirement flexibility. break. like that in effect prior to the 2004 rule The fact that drivers sleep more on Commenters, including the Truckload change. Several industry associations weekends or longer off-duty periods is Carriers Association, briefly stated that supported a single, longer break and two not surprising. Most people who work the sleeper berth rules should allow a 6/ demanding jobs follow this pattern. But 4 split. On the other hand, the Retail 53 Wehr, T.A., (2012) ‘‘In Short Photoperiods, it does not follow that a 7-hour sleeper Human Sleep is Biphasic,’’ Journal of Sleep Industry Association doubted whether Research, 1(2):103–107. Available at https:// berth period is therefore unsafe. many drivers would use either the 7/3 onlinelibrary.wiley.com/doi/pdf/10.1111/j.1365- Although the comments discussing or 6/4 split. Citing a 1990 study showing 2869.1992.tb00019.x. (Accessed March 30, 2020). options beyond the 6/4 option presented

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in the question varied substantially, sleeper periods count in the calculation Other commenters noted that their most of the studies and science cited of either the 11- or 14-hour rules. use of the sleeper berth provisions demonstrate that drivers need at least FMCSA has not adopted the proposed would increase if the use of sleeper one primary sleep period of 7 ‘‘pause’’ in this final rule, which should berth time affected the driving clock. An consecutive hours. Many motor carriers help to eliminate any confusion in the individual driver and the National and industry trade associations believe calculation of compliance with the Propane Gas Association both the current sleeper berth provisions are sleeper berth provisions. However, commented that, if the new provision too rigid, and that drivers do not have consistent with the previous rule, a allowed them to stop the driving clock, enough opportunities to stop driving driver’s available driving or on-duty they would use it more than the current and take breaks when they are fatigued. time under the sleeper berth provision provision. TruckerNation stated that it Based on Sieber et al., (2014) and is calculated from the end of the initial, is difficult to predict how drivers would cited in the NPRM, approximately 26 rather than the second, rest period. use the proposed split. They believe, percent of drivers sleep less than 6 FMCSA notes that, under this final rule, however, that most drivers would consecutive hours, and about 51 percent neither qualifying rest period required choose to split their sleeper berth time sleep between 6 and 8 consecutive by the sleeper berth rule counts against as long as the provision allows them to hours per night.54 Some drivers may the 14-hour driving window. stop the 14-hour clock and the time is find it difficult to sleep for more than 7 Frequency of use of the 7-3 Split. cumulative rather than consecutive. consecutive hours but the previous rule FMCSA requested comments on how FMCSA Response: FMCSA cannot required them to be in the berth for a often drivers use the split sleeper berth accurately predict how the proposed minimum of 8 consecutive hours. provision under the current regulations changes would affect the use of the The study by Maislin, et al. (2001),55 and how often they would use the new provision. First, while FMCSA received cited in the NPRM showed that it is provision if the proposed changes were some information regarding how often possible for a person to avoid to take effect. Comments on this issue some drivers use the current provisions physiological sleepiness or performance varied widely. and how usage might change under the deficits on less than 7 hours of sleep; OOIDA provided data from its new provision, the Agency lacks the the subjects in this study were members which showed that they use definitive information that would be supplementing their sleep with longer the current sleeper berth provision an needed to estimate usage among the naps later in the day. Maislin found that average of 2.18 times per week. In terms entire population of drivers. a shorter restricted anchor sleep period of how their usage might change, 40 Furthermore, FMCSA lacks data on the (i.e., the longer sleeper berth period) percent of OOIDA survey respondents number of trucks that are equipped with combined with longer naps can reduce said that they would increase their sleeper berths and the impact that sleepiness and performance deficits usage if the proposed changes went into schedule changes might have on motor similar to longer duration anchor sleep effect, and 54 percent of OOIDA survey carrier operations. Therefore, FMCSA alone. Thus, this final rule allows for respondents said that their usage would did not evaluate the impacts of schedule extended shorter rest periods (i.e., a stay the same. In addition, the changes that may occur because of this minimum 3-hour consecutive break Minnesota Trucking Association noted final rule. either in the sleeper berth or off-duty to that its members’ drivers would use the Schedule and Planning Changes. take a nap for example if ‘‘paired’’ with sleeper berth provision with the OOIDA and ATA both commented that a 7-consecutive hour period in the proposed changes 1.5 times per driver the proposed sleeper berth provision sleeper berth, totaling a minimum of 10 per 70-hour week. would give drivers greater ability to Other comments received, however, hours. avoid rush hour traffic. TruckerNation FMCSA believes that drivers using the suggested that the current sleeper berth stated that this provision would allow sleeper berth provision adopted in this provision is not widely used and would drivers or motor carriers to plan and not be widely used even if the proposed rule will better accommodate a driver’s schedule drive time during non-peak changes went into effect. TruckerNation sleep schedule. The Agency, however, hours to avoid conditions such as said that the current provision allowing does not believe there is sufficient data traffic, weather, and scheduled road for an 8/2 split is not frequently used by to support a single sleeper berth period closures. In addition, OOIDA stated that drivers; however, it did note that drivers of any less than 7 consecutive hours. these changes would reduce wear on In response to the TruckerNation seem interested in using the provision if vehicles and improve fuel efficiency as the proposed changes were adopted. request to clarify the use of the drivers would feel less pressure to drive Southeast Transportation Systems stated provision, and calculation of available at times when they were tired and not that less than 5 percent of its drivers use hours, the Agency has modified the driving as safely or efficiently. ATA also the current provision, and does not proposed language to explain how the added that these changes will allow expect usage to change considerably if various sleeper berth provisions drivers to more effectively plan their the proposed changes were adopted. interact. FMCSA has also explained in sleep and other breaks around loading One driver said that the sleeper berth further detail that neither of the two times, thus increasing the efficiency of provision is used relatively little their work hours. because it is too complex for drivers to FMCSA Response: FMCSA requested 54 Sieber, K.W., Robinson, C.F., Birdsey, J., Chen, G.X., Hitchcock, E.M., Lincoln, J.E., Akinori, N., & understand. Some commenters provided information on how changes to the Sweeney, M.H., 2014. ‘‘Obesity and Other Risk detail on how often they would use the sleeper berth provision would change Factors: The National Survey of U.S. Long-Haul proposed split during an average week. the scheduling and planning of drivers Truck Driver Health and Injury,’’ American Journal According to OOIDA, respondents to its to determine if the rule would have the of Industrial Medicine, 57, 615–626. Available at: https://www.ncbi.nlm.nih.gov/pubmed/24390804. survey stated that they would use the intended effect of allowing drivers to Last accessed January 4, 2019. proposed split an average of 1.85 times operate more efficiently. For example, 55 Maislin, G., Rogers, N.L., Price, N.J., per week. In addition, 42 percent of the FMCSA believes that these changes will Mullington, J.M., Szuba, M.P., Van Dongen, H.P.A., survey respondents said that the increase the ability of drivers to take rest and Dinges, D., 2001. ‘‘Response Surface Modeling of the Effects of Chronic Sleep Restriction With and additional flexibility afforded by the periods when they can find a safe place Without Diurnal Naps,’’—Report. Available in the proposed split would allow them to to park, to schedule drive time during docket for this rulemaking. complete additional runs. non-peak hours, and to avoid conditions

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such as traffic, weather, and road conclusion that a shorter allowable rest information that probably does not exist closures. These changes ensure that period would enable and encourage less after deciding against conducting a drivers using the sleeper berth to obtain sleep. sleeper berth pilot study that could have the minimum off-duty time have at least Impact of the Sleeper Berth Proposal produced the information. one consolidated rest period of a on VMT. FMCSA requested comment on FMCSA Response: As indicated in the sufficient length to have restorative whether the changes to the sleeper berth NPRM, FMCSA had planned to conduct benefits. In addition, these changes provision would result in increases in a pilot project to collect data on the afford drivers the flexibility needed to VMT and would enable drivers to safety of drivers who split their sleeper make decisions regarding their rest that complete additional runs. berth time in a variety of ways. best fits their individual needs. Commenters were split on the likely However, given comments received by FMCSA agrees with commenters who impacts of these changes. A carrier and the Agency in response to the ANPRM indicated that this final rule will lead to an industry association said that the as well as at public listening sessions, more efficient use of time. However, the proposed changes would not result in and the results of a literature search comments also highlighted how the any increases in VMT or hours worked, conducted in advance of the NPRM, the impact will vary for each motor carrier and would not result in drivers Agency determined there was sufficient and type of operation. completing additional runs. In contrast, data to support the modifications Sleep Changes Between 7- and 8-hour some individual drivers noted that they proposed in the NPRM and adopted in Periods. FMCSA asked, if the proposal would likely increase their VMT in this final rule. Not counting the shorter was adopted, would you expect to get response to these changes. Similarly, break against the 14-hour driving the same amount of sleep in the 7-hour EROAD noted survey results showing window will allow drivers additional period as in the current 8-hour period? that drivers would increase their VMT flexibility in obtaining rest. However, OOIDA commented that increased and complete more runs due to the the Agency does not feel it currently has flexibility would improve driver sleep increased flexibility of the sleeper berth adequate data to support an extension of quality. TruckerNation stated that requirements. Also, as noted by the the sleeper berth split to 6/4 or 5/5. research shows that drivers average National Propane Gas Association, the No research or data has been provided little more than 6 consecutive hours of impacts of the rule on VMT could vary that would counteract the position sleep, thus 6, 7, or 8 hours would ensure by region. posed by FMCSA in the NPRM. adequate and restorative sleep. Other commenters noted that the Therefore, the Agency reaffirms its Individual drivers differed as to whether benefits of the proposed changes do not position that allowing an expanded split they would get the same amount of necessarily take the form of increases in sleeper berth option would provide a sleep in a 7-hour period as an 8-hour VMT or work hours, but in an increased sufficient period of consolidated sleep period. ability of drivers to plan their work and for drivers and would not be Advocates argued that research has off-duty periods. For example, detrimental to driver safety. proven that drivers, when given TruckerNation stated that the primary Other Comments or Questions. extended off-duty periods, tend to benefit of these changes would be to Approximately 120 commenters, mostly obtain additional sleep. Therefore, allow a driver to better maximize the individuals and drivers, provided Advocates noted, shortening the use of their full 24-hour day. statements regarding sleeper berth splits allowable rest period will enable and FMCSA Response: FMCSA agrees that that were mixed, neutral, or unclear in encourage the use of the shortest time driver mileage may vary in each shift or their intent regarding the sleeper berth possible when it is advantageous for the week. In terms of net impacts of the provision. These comments mostly carrier. changes to VMT, driving hours, and discussed the split sleeper berth Truckers for a Cause argued that work schedules, it is important to provisions as they related to out-of- drivers will get less sleep in a 7-hour remember that the changes adopted in scope topics, like parking or State split, but also requested that a pilot this final rule will not affect the volume preemption relating to breaks. of freight shipped or aggregate VMT. study be conducted to examine this 7. Split-Duty Period (3-Hour Pause) issue. While these and other changes to the FMCSA Response: The Agency agrees HOS rules may shift freight loads NPRM. FMCSA proposed that a single that drivers average little more than 6 between drivers and carriers, those off-duty break of between 30 minutes to consecutive hours of sleep. The NPRM changes are not expected to affect the no more than 3 consecutive hours, be cites several studies (Hanowski 2007, total economic demand for the excluded from the 14-hour driving Van Dongen 2013, Dinges 2017, Sieber movement of freight. Therefore, FMCSA window, provided the driver has at least 2014) which found that: did not estimate a change in VMT 10 consecutive hours off-duty before the • Drivers were getting an average of resulting under this final rule. start of his or her next duty period. A 6.15 hours of sleep per 24-hour period. Comments Suggesting the Agency single pause of up to 3 hours would • Drivers obtained between 6.0 and Conduct a Sleeper Berth Pilot Program. provide significantly more flexibility 6.2 hours of sleep (on average) per 24 The U.S. Chamber of Commerce than allowed under the current rules. It hours during duty cycles. supported added flexibility but said that would have allowed drivers to take an • Drivers obtained, on average, such changes should be made only after off-duty break without fear of approximately 6.5 hours of sleep per a pilot study had validated the exhausting their available hours under day during duty periods. proposals. Similarly, CVSA and the 14-hour clock, which would also • 26.5 percent of long-haul truck Schneider National Carriers, Inc. have allowed them to get additional rest drivers reported that they slept 6 hours commented that the proposed rule or avoid traffic congestion. or less per night, compared to 30.0 should not be implemented until a pilot The Agency encouraged motor percent of the general working study has been concluded. carriers and other stakeholders to population. ATA and other commenters also submit driver record data supporting Based on this research, the Agency supported a pilot program to examine their comments in a manner that did not agrees that drivers would likely get the the efficacy of 5/5 and 6/4 sleep splits. reveal the identity of an individual same amount of sleep in a 7-hour period The Truckload Carriers Association driver. FMCSA sought additional as an 8-hour period and rejects the expressed regret that FMCSA requested information and data on the impacts of

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the split-duty period provision, in part hours. Furthermore, drivers would still duty time would have less impact on to assess its potential costs and benefits. be required to have 10 consecutive fatigue than adding the same amount of FMCSA also sought additional hours off-duty at the end of the work driving time. information on whether drivers should shift. Several commenters, including be allowed to divide the pause, up to a Although the Agency’s analysis Senator Murray and CVSA, said FMCSA total of 3 hours. Responses to these indicates the additional flexibility could should consider how this change would questions are discussed in the comment be provided without adversely interact with other changes proposed in summaries below. impacting safety, the analysis did not the NPRM (e.g., adverse driving Comments in Favor of a Split Duty take into account the driver protection conditions) and should set a maximum Option. Approximately 280 commenters issues raised by commenters opposed to workday. These commenters stated that supported the proposed pause to the 14- the 3-hour pause. These issues are of these possible interactions (‘‘stacking’’) hour driving window. Many of these such concern that the Agency has not would raise serious safety, health, and commenters, mostly individuals and included the 3-hour pause in this final welfare concerns. drivers, simply noted their support. rule. ATA provided extensive comment Others gave the following reasons for Commenters Opposed to the Split and survey results regarding the supporting this provision: Duty Proposal. Approximately 150 potential impact of the pause on driver • Provides flexibility for drivers to commenters opposed the NPRM’s split- sleep schedules and the possible safety take a break when needed. duty period because it went too far. impact of the proposal, and concluded • Greatly improves performance, Drivers and other individual that FMCSA should clarify the safety productivity, and safety by preventing commenters argued that: benefits of the proposed pause. ATA drivers from feeling compelled to keep • The pause creates a 17-hour driving said that FMCSA should provide some driving to complete a trip if they feel window, which is unwanted and estimate on how often, and for how fatigued. unsafe. long, drivers would use a ‘‘pause,’’ and • Compensates for time lost, and • The pause could be abused, whether that period would impact sleep provides an opportunity to rest, while enabling companies to take advantage of cycles and relative measures of roadway waiting during loading and unloading, drivers. safety. ATA also stated that some motor • rather than placing stress on drivers to The pause adds 3 unpaid hours to carriers worry that modifications to the rush to make up for lost time. a truck driver’s day. 14-hour clock could increase their risk • Enables drivers to avoid rush hour Multiple opponents provided exposure, which, in turn, could affect traffic periods in major urban areas. additional explanations based on insurance rates and motor carrier • Enables drivers to stop and rest research data. Several motor carriers liabilities. while still ensuring they will be able to and a law enforcement agency CVSA stated that, before finalizing the make it home at night. expressed concern about the negative proposed changes, FMCSA needs to • Avoids congestion and other unsafe safety impact of an extended driver evaluate how these changes will impact conditions. workday, potentially up to 17 hours. An broader flexibility that has already been • Mitigates driver stress and fatigue. individual commenter said a carrier or granted to certain segments of the motor OOIDA supported the proposal and third party should not be allowed to carrier industry through exceptions and recommended several actions FMCSA impact a driver’s schedule based on this guidance, and to ensure that the could take to ensure that the split-duty provision. combination of changes does not provision does not exacerbate detention The Trucking Alliance, Advocates, negatively impact safety. times currently experienced by drivers. and others also opposed this change, CVSA, Trucking Alliance, Road Safe FMCSA Response: The Agency agrees stating that FMCSA does not have data America, IBT, TruckerNation, industry with commenters and continues to on the possible safety implications of an associations, and individual believe the split duty proposal could extended workday. Others, including commenters highlighted the potential provide significant flexibility for drivers the AASM and IBT, opposed the for abuse of this provision by shippers, and provide an incentive to take an provision, stating that there are no data receivers, brokers, or motor carriers. extended rest break. The current 14- to support the assumption that drivers They argued that it could be used to hour window disincentivizes drivers would rest or sleep during the pause; coerce drivers into extending their from voluntarily taking rest breaks that the proposal increases the risk of workday and obscure the problem of because those breaks do not pause the drowsy driving and accidents; and that unpaid detention time. Some 14-hour clock. Consequently, all the allowing up to a 3-hour pause in the commenters stated that drivers alone time a driver spends in an off-duty driving window does not necessarily should be allowed to decide when this status reduces the amount of time translate to a decrease in driver fatigue provision is used. Others, including available to complete up to 11 hours of levels. CVSA, stated that drivers might use the driving time during the work shift. Advocates offered a detailed provision for work-related activities Therefore, drivers who take additional discussion of the Blanco (2011) study rather than rest. ATA generally breaks may feel compelled to speed in and the examples provided by the supported the flexibilities offered by the order to complete their driving within Agency, and cited additional studies not proposed split-duty period but pointed the 14-hour window. mentioned in the NPRM. Advocates to mixed results generated by a survey With regard to safety impacts, the argued that the research does not it conducted in response to the NPRM. Agency notes the additional break of up support the proposal and that FMCSA Specifically, ATA said some motor to 3 consecutive hours would be off- had provided no analysis of applicable carriers responded positively to the duty. This means the extension of the data to justify the split-duty proposal. proposed split-duty day, but others driving window would not result in Advocates opposed a pause of any expressed varying degrees of hesitation drivers working additional hours; the length that would extend the driving regarding lack of supporting data or maximum amount of on-duty time that window and allow driving later in the potential for abuse by shippers and could be accumulated before a driver duty period. IIHS also opposed the receivers. In addition, ATA said many would be prohibited from driving pause and questioned the logic that motor carriers want FMCSA to clarify during a work shift would remain at 14 increasing a driver’s workday with off- how a split-duty period would impact

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driver detention or ‘‘dwell’’ times and believes that limiting an extension of Advocates warned that the pause affect sleep cycles. EROAD also the 14-hour driving window to the would likely permit the scheduling of provided the results of its survey of shorter period under the sleeper-berth more driving hours in a single driving trucking industry professionals and exception, rather than applying it to all window, probably later in the duty associations. The responses varied CMVs, will give drivers greater peace of period when crash risk from fatigue is between support, requests for additional mind and the rest that will enable them greatest. Knight-Swift Transportation flexibility, and opposition due to the to operate safely later in the work shift, Holdings, Inc. stated that industry data impact on driver fatigue and potential even if that off-duty period may collected in response to the NPRM for abuse. ATA asserted that FMCSA sometimes occur at less-than-ideal shows that, in up to 3.8 percent of all had not undertaken a RIA on whether a times. workdays, the day would be extended flexible split-duty period would impact Comments Responding to FMCSA’s by up to 3 additional hours and allow detention times and whether those Request for Research and Data. for up to 2 additional driving hours on impacts would result in net costs or FMCSA requested comments, average between the 14th and 17th hour benefits. ATA concluded that FMCSA research, and data on the optimal length of duty. An individual commenter said should provide that data before of a pause that would allow drivers this provision would allow drivers to adopting the proposal. Trucking reasonable flexibility to manage complete more driving hours during the Solutions Group stated that the operational variables while ensuring week, but would then force them to take proposed pause would be nothing but a that driving does not occur after too 34-hour restarts more frequently. ‘‘band-aid’’ to mask a widespread much time has elapsed since the last (2) How would this provision impact detention problem. longer rest period. While Advocates your regular schedule? How often would Other commenters expressed concern opposed a pause of any length, most you expect to take advantage of this about how drivers would file commenters did not provide feedback provision in a given work week? Why? complaints if they were coerced to use on an optimal length of the pause, and OOIDA said its survey respondents this provision. Many commenters instead requested that the Agency believe that their operations would be mentioned the ‘‘forced dispatch’’ obtain additional data. more productive and less stressful if the policies in place at some companies, Some commenters who opposed the 14-hour on-duty period offered under which drivers can be and are told provision, including IIHS, additional flexibility, not only to avoid adverse driving conditions, but also to by the carrier when to take split or recommended a pilot program to gather pause breaks to meet the needs of address other issues outside of their needed data relating to its impact on customers. Other commenters raised control. OOIDA said its survey driver health and safety and on possible concerns about the interaction of the respondents indicated that they would interactions with other proposed pause with other regulations, use the split-duty period an average of changes. Road Safe America stated that, exceptions, and Canadian regulations. 2.55 times per week. American Moving before moving forward with the Commenters requested that the and Storage Association said that its proposal, FMCSA should study the industry and law enforcement be given drivers would use the proposed split- safety risks of permitting a 17-hour clear regulatory language and guidance duty period up to three times per week, workday and its effect on cumulative to help interpret the pause and how it and that carriers operating primarily would interact with other regulations. fatigue, given that the NPRM included within non-metropolitan areas, or FMCSA Response: The Agency no limits on the use of the pause running single loads, would likely use acknowledges commenters’ concerns throughout the week. this proposal less often. about the potential for unintended Many other commenters, including Industry associations said the overall consequences associated with actions by motor carriers, supported the proposal impact would be minimal but would employers, shippers and receivers that but wanted further study on efficiency, allow drivers to safely and compliantly might be contrary to drivers’ interests. the ELD environment, nocturnal driving complete their deliveries. Other Given the uncertainties as to whether and breaks, sleep cycles, and driver commenters said the pause would be these potential consequences would detention. In addition, some used infrequently, mainly for flexibility actually happen, the Agency has not commenters that supported the in cases of inclement weather, traffic included the 3-hour pause in this final proposal, including the U.S. Chamber of interruptions, unexpected delays, and rule. Commerce, requested that the Agency seasonal demand. The Agency is not persuaded by conduct a pilot program to understand (3) What are the expected benefits commenters’ assertions that the pause, the safety impacts of the split-duty from utilizing the 3-hour pause? OOIDA in and of itself, would reduce safety, but provision before considering it further. and other commenters said the pause does agree that the issue warrants The NPRM asked a series of questions would allow drivers to be better rested, further study. about the proposed pause: to stay off the road during unsafe The FMCSRs have always treated off- (1) How will this provision impact the conditions, and to use their on-duty duty time as an opportunity for driver number of driving hours during a single time more efficiently, resulting in rest, but that opportunity is enhanced if driving window? How will this provision improved highway safety, more the CMV is equipped with a sleeper impact your total driving hours during completed trips, and fewer wasted berth. That factor, combined with a given week or year? Although some hours. Several industry associations significant uncertainty about the commenters stated that the provision echoed this, arguing that the pause frequency and extent of detention time, would not change driving hours, others, would promote safe operation, improve makes the evaluation of the cost and including OOIDA, industry associations, efficiency, and allow drivers to schedule safety impact of a general 3-hour pause and motor carriers, responded that the work better and avoid unexpected and difficult, since day-cab drivers who are pause could reduce total driving hours stressful conditions. Other commenters delayed at shipper or receiver facilities by enabling drivers to operate more linked these benefits to driver retention, at non-ideal points in their circadian efficiently and flexibly, e.g., to move increased safety and decreased road cycle might obtain less effective rest when necessary and stop when tired or congestion, additional capacity within than sleeper-berth drivers, who always to avoid driving in some potentially the trucking industry (by allowing time have a bed ready for use. The Agency challenging conditions. spent being loaded or unloaded to be

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used as off-duty time), more loaded TruckerNation remarked that the more opportunities to rest when they miles for drivers, increased ‘‘supreme benefit’’ of the proposed split- feel tired. OOIDA further stated that 74 compensation, and less wasted fuel. duty provision is the fact that it percent of its survey participants Similarly, several industry associations accounts for uncertainty and results in indicated that the provision would not supported the flexibility of the loads getting to their destination as impact their sleep schedule. Of those provision to permit drivers to make scheduled, rather than having drivers who expected an impact, 72 percent decisions on road condition safety, as exhaust their 14 hours with miles yet to said that the impact would be positive well as to promote fatigue recovery and drive. Minnesota Trucking Association because it would provide additional napping. responded that its drivers would opportunities to rest as needed. After presenting data relating to daily consider using this provision to react to Similarly, the Minnesota Trucking traffic speed fluctuations, off-duty unforeseen circumstances encountered Association stated that its members breaks, and impacts on braking events during the trip. A motor carrier anticipate this proposal could enhance and speeding, a technology company servicing railroads stated that, since safety by allowing a driver to take a rest concluded that the pause would allow unplanned events that block lines (e.g., period as needed or avoid high stress drivers to reclaim the time spent off- weather event or derailment) often situations and traffic. This commenter duty and traverse congested occur outside of normal business hours, added that the proposed rule would metropolitan areas at more efficient railroad contractors require flexibility to allow drivers to better manage their own times. send drivers to the site with the fatigue levels but suggested that FMCSA A motor carrier stated that its drivers equipment necessary to remove railcars consider how often a driver could safely would likely use this provision to offset and debris and restore service. use this extension. extended detention times, effectively Regarding uncertain impacts, a The National Tank Truck Carriers also allowing them to use more of their HOS commenter said that traffic congestion discussed how often the pause could be on-duty time on the road instead of at occurs at least a couple of times a week. used, stating that its members have the loading dock. An individual Another commenter responded that it expressed concern over whether this commenter said that the pause may uses driver teams to account for proposed change would disrupt driver enable a driver to return home sooner uncertainty in its operations. sleep patterns, and that FMCSA should instead of taking a 10-hour off-duty or (5) Do you expect to be able to monitor how frequently this option is sleeper berth period. complete more trips due to this used by drivers to determine to what American Moving and Storage provision (i.e., schedule additional extent, if any, drivers’ sleep patterns are Association said carriers that freight movement)? How many disrupted in a manner that negatively compensate their drivers by the hour additional trips would you expect to impacts safety. Another commenter said would not see a direct labor cost benefit plan during a given week or year? this provision would adversely impact from this proposal, but that operations OOIDA said 58 percent of its survey drivers’ sleep schedules because that pay per load weight or per mile respondents replied that they would not companies, shippers, and receivers may recapture lost efficiency. However, complete more trips due to this would force drivers to take the pause to the commenter said the flexibility provision, and 42 percent said that they compensate for detention times, thus provided by the proposal would be would be able to complete an average of forcing drivers to drive fatigued. expected to minimize idling fuel costs 1.6 more trips per week. Several The NSC provided studies indicating and reduce contractual payback commenters, including a trade that lack of rest is associated with a penalties for late deliveries. association, reported that they would higher likelihood of safety-critical An individual commenter stated that not complete more trips due to this mistakes and that the effects of lack of this provision would be beneficial if its provision, or expect fewer trips. sleep can be exacerbated if they occur use is restricted to the avoidance of (6) Would you expect to be able to use during circadian lows. Boyle traffic congestion. However, because more of the 11 hours of drive time Transportation stated that no new companies, shippers, and receivers currently available due to the 3-hour science or study has altered previous could abuse this provision, the pause? OOIDA and other industry findings about humans’ sleep cycles and commenter said it would result in more associations responded they expect requirements for sleep, and that the drivers driving fatigued when they do drivers would be able to use the 11 split-duty provision will eliminate any not want to be driving. hours of drive time more efficiently safety advantage by disrupting and Advocates expressed concern that the with the option of a 3-hour pause. extending the regular on/off cycle question failed to ask for details from Schneider National Carriers, Inc. also beyond 24 hours. This commenter research or to try to account for the cost said drivers are likely to use more of concluded that the pause would subject of crashes caused using the 3-hour their 11-hour maximum drive time than drivers to a rotating sleep schedule pause. they are using under the current rule, since the 3 hours added to the workday (4) Do you expect to use this provision but did not have an estimate as to how would offset their circadian rhythm. to account for uncertainty such that much more of the maximum drive time Another commenter responded that the trips could be finished on their would be used. However, Boyle rule would allow drivers to shift their scheduled completion day? How often Transportation responded that they circadian rhythm and would lead to do uncertain factors impact your would not be able to use their drive time more fatigued driving. Another schedule such that you are unable to more effectively. commenter also stated that the rule complete a trip during the expected (7) Do you expect this provision to would allow drivers to shift their driving window and must delay delivery impact drivers’ sleep schedule? How so? circadian rhythm and would create a 27- until after a 10 hour off-duty period? (8) Will this provision allow for drivers hour day. OOIDA responded that the provision to shift off their circadian rhythm more (9) In a full year, would this provision would give drivers more flexibility to easily than under current rules? OOIDA lead to additional driving miles or account for uncertainty during their responded that the provision would not driving time? OOIDA said this provision workdays, which in many cases would allow drivers to shift off their circadian could lead to additional driving miles help them finish trips on their rhythms more easily than the current but not additional driving time and, in scheduled completion days. rule; rather, it would provide drivers many cases, would likely decrease total

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driving time. Boyle Transportation Some commenters argued that driving (13) What operations would benefit responded that the proposal would not up to the 17th hour of a duty day would from multiple off-duty periods totaling 3 lead to additional driving miles or time. have fatigue impacts. Truckers for a hours? Many commenters, including an The Minnesota Trucking Association Cause cited research and studies on how industry association, indicated that said the proposal could increase both hours awake relate to fatigue long-haul operations would benefit from miles and time. impairment and stated that detention multiple off-duty periods totaling 3 (10) How often would you take time at shipper facilities does not result hours, or just multiple pauses. advantage of the full 3-hour pause as in an opportunity for rest. The Similarly, the Minnesota Trucking compared to shorter amount of times? commenter concluded that, unless Association said short-haul and local Why? OOIDA responded that frequency regulatory language provides reasonable operations would be affected less, as of use would vary depending on the assurance that a nap will be possible these operations use a standard conditions that necessitated the pause. during a split or pause, the proposal schedule for pickup and delivery. Similarly, the Minnesota Trucking would not result in safety equal to or OOIDA, the Minnesota Trucking Association said that use of the pause is better than that found under the current Association, and Schneider National difficult to estimate, as decisions would FMCSRs. Similarly, AASM stated there Holdings, Inc., however, did not support be made on a case-by-case basis by a is no guarantee that a driver can or will multiple pauses. The industry driver. sleep during a pause of up to 3 hours association said FMCSA should provide Another commenter, presumably a and that this prolonged wakefulness can clear guidance regarding the potential driver, stated that, if left solely to the occur during circadian ‘‘low’’ periods use of multiple extensions in one commenter’s discretion, the provision when performance is lowest, thus workday and address concerns would only be used to avoid traffic resulting in a higher risk of drowsy regarding potential circumvention of the congestion and adverse weather. driving and motor vehicle accidents. HOS rules through the combination of However, the commenter said the Knight-Swift Transportation Holdings, multiple extensions in a single workday. decision would not be left to the driver’s Inc. said the proposal would create (14) Would this flexibility cause discretion unless FMCSA implements significant additional risk, in terms of drivers to alter their daily behavior or stronger coercion rules and VMT at the most vulnerable times in the increase productivity? If so, how? The enforcement. driver’s daily work shift (after the 14th Minnesota Trucking Association said (11) How would you plan to use the hour on-duty), to accommodate a rather allowing a driver to take a pause as off-duty time spent during the 3-hour small percentage of drivers affected by needed would effectively manage pause? Would you use the time sleeping the current and more rigid 14-hour fatigue, as well as improve driver in a truck cab more often or other limit. lifestyle and work life overall. leisure activities more often? OOIDA Truckers for a Cause disagreed with (15) What would be the impact on stated that 27 percent of its survey drivers who cite the rule on ill or fatigue with several smaller breaks respondents said they would use time fatigued operators (§ 392.3) as providing compared to a single period of up to 3 sleeping in the cab, 6 percent said adequate protections from forced hours? The AASM said multiple off- personal time, 55 percent said both dispatch that might result in excessive duty periods are less restful than a sleep and personal time, and 12 percent fatigue. The commenter said a driver single, long opportunity to sleep; responded with ‘‘other.’’ The Minnesota being told to take a split or pause break restorative sleep progresses through Trucking Association said the answer when and where a carrier, shipper, or specific, well-organized stages that would depend on professional drivers receiver wants, rather than when and cannot be generated when sleep managing their trip plan and where a driver chooses, would not be opportunities are short or timed against productivity to determine what is safe. violation of the coercion rule unless the natural circadian rhythm. Therefore, (12) Do you anticipate any fatigue new regulatory language is included in shorter off-duty periods would be impacts on driving up to the 17th hour the final rule. expected to decrease total sleep time per of a duty day? How would the up to 3- Advocates asserted that evidence 24 hours, impacting driver safety. This hour break impact that fatigue level? shows that fatigue and crash risk commenter also said shorter rest breaks OOIDA stated that 79 percent of its increase with increasing length of day mean that drivers will likely end up survey respondents said they did not and the ‘‘question incorrectly assumes operating their vehicle during circadian anticipate any fatigue impacts on that carriers and drivers’ expectations low periods, which is a major risk for driving up to the 17th hour of a duty regarding fatigue are a comparable sleepiness-related crashes. Lastly, the day; rather, the split-duty break would substitute to research and scientific commenter said the proposal would lessen fatigue by providing drivers more fact.’’ lead to more episodes of sleep inertia, time to rest, thus reducing stress and Some commenters foresaw a potential which has been tied to accidents and increasing vigilance. A motor carrier fatigue impact but said this could be near-miss events in operational also expected reduced fatigue because mitigated by the off-duty rest periods. environments. drivers would be allowed to adhere An industry association suggested that The Minnesota Trucking Association more to their personal ‘‘body clock.’’ FMCSA further study whether stopping responded that taking a break when a The Pipeline Contractors Association the clock could be done daily without driver needs to can positively impact said its members would not suffer an increase in driver fatigue. fatigue reduction and improve driver additional fatigue if they extend the IBT reported that half of all its survey lifestyle, but this becomes more driving window by taking a break. respondents indicated that fatigue levels challenging from a reporting standpoint. Several industry associations pointed would be negatively impacted by (16) If the 3-hour break were divided to research indicating that that drivers driving up to the 17th hour of a duty up into smaller increments, what would can safely work a 16-hour shift without day. However, survey respondents be the impact on enforcement when significant degradation in performance, indicated that having a 3-hour pause in determining compliance? The noting the research failed to consider the driving window would not equate to Minnesota Trucking Association said the restorative impact of taking one or a decrease in fatigue levels, as off-duty dividing up the break into smaller more off-duty rest breaks of between 30 pauses can be more fatiguing than being segments would cause confusion with minutes and 3 hours. active. no increase in safety. Schneider said

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multiple pauses could encourage drivers consecutive hours, thereby starting a if the driver’s preferences about the to inaccurately record on-duty time as new work shift. And the total amount of timing and location of the break are not off-duty time, make verification and driving time accumulated before the part of the equation. enforcement of the rule more difficult, designated off-duty pause and Additionally, although this final rule and overly complicate the rule. immediately following the pause could makes modifications, the split sleeper (17) Would the added complexity of not exceed 11 hours before the driver berth provisions are already well- multiple pauses substantially add to the takes a break of 10 consecutive hours, established, whereas the pause was a time needed for ELD vendors to thereby retaining the 11-hour limit on wholly new proposal. Due to its reprogram ELD software? If so, how driving time during the work shift. established use, FMCSA does not much additional time would be needed? FMCSA acknowledges that the believe the sleeper berth changes are The Minnesota Trucking Association potential benefits of increased flexibility likely to affect current industry anticipated that technology vendors could be undermined if the pause is practices, as both breaks are required (so would need adequate time to adjust to used by carriers, shippers, or receivers a driver’s break is not a question of ‘‘if’’, any new rule. for purposes other than the productivity but only ‘‘when’’) compared to the FMCSA Response: The Agency has and safety of drivers, especially to proposed new voluntary pause, when a decided not to implement the proposed compensate for time wasted during the driver could be pressured into a break pause in the 14-hour driving window at 14-hour driving window due to that she is never ‘‘required’’ to take. this time. FMCSA continues to believe increased detention time. Under such a Given the uncertainty about the that an opportunity for a single off-duty scenario, the Agency believes it is amount and quality of rest drivers could pause in the 14-hour driving window unlikely that the off-duty period would obtain under the circumstances could provide flexibility for drivers provide a meaningful opportunity for described above, previous research without compromising safety, as drivers to rest. Drivers may have limited about the safety risks of driving later in explained in the NPRM. However, many choices where the off-duty period the work shift becomes more relevant commenters believe that drivers would would take place, especially if the CMV because drivers would indeed be be pressured by carriers, shippers, or is not equipped with a sleeper berth. operating within a 17-hour window receivers to use the break to cover For drivers operating sleeper berth- during which there may be minimal detention time, which would not equipped CMVs, the Agency believes it opportunity to get meaningful rest. For necessarily provide the driver an is more likely that the driver would drivers of sleeper berth-equipped optimal environment for restorative rest. elect to use the split-sleeper berth vehicles, concerns about where the This suggests that the proposal could option adopted through this final rule driver could rest are not as significant, have unintended consequences that rather than the pause of up to three because these individuals already have were not adequately evaluated in the consecutive hours. With the sleeper experience using sleeper berths while development of the NPRM. berth option the driver would be the CMV is parked at various locations, An off-duty break of up to three required to spend only seven including shipper and receiver facilities, consecutive hours during a work shift consecutive hours in the sleeper berth to and under various conditions (e.g., would have enabled drivers to avoid fulfill the HOS requirements rather than noise levels and weather conditions). congestion. The subsequent driving time spending 10-consecutive hours off duty Given the uncertainty about the amount would then be more productive as (or in the sleeper berth). The split and quality of rest drivers could obtain drivers may have a greater opportunity sleeper berth option would allow the under certain circumstances, previous to travel at the posted speed limits individual to resume CMV driving three research about the safety risks of driving rather than at lower speeds through hours sooner and thereby increase the later in the work shift become more heavy traffic and congestion. It may also likelihood of meeting scheduling relevant because drivers would indeed reduce the pressure to drive above the demands. Therefore, there is an inherent be operating with a 17-hour window posted speed limits because of concerns incentive for drivers of sleeper berth- during which there is minimal raised by the 14-hour clock. In addition, equipped CMVs to use the sleeper berth opportunity to get meaningful rest. For drivers could take a rest break to reduce rule instead of the pause. drivers of sleeper berth-equipped the likelihood of experiencing fatigue Because the drivers most likely to use vehicles, concerns about where the while driving. Because drivers would the pause are individuals who do not driver could rest are not as significant continue to take 10 consecutive hours have the option of using a sleeper berth, because these individuals already have off-duty at the end of the work shift, the Agency is particularly mindful of experience using sleeper berths while exercising the pause option during the commenters’ views about the potential the CMV is parked at various locations, work shift would increase the driver’s for unintended consequences. The including shipper and receiver facilities, off-duty time during the work week. Agency is concerned about the need to and under various conditions (e.g., This increased productivity, resulting ensure that drivers are not forced into noise levels and weather conditions). from an ability to avoid congestion, situations where the break fails to As stated above, some commenters would be accomplished without altering provide meaningful rest. If an suggested the pause would be helpful the maximum amount of on-duty time individual operating a CMV that is not but only if the regulatory text included that could be accumulated before equipped with a sleeper berth is language giving drivers exclusive driving is prohibited, or increasing the pressured into using the pause at a time discretion over its use. While this maximum driving time allowed during and location the driver finds approach might address some of the a work shift. The maximum amount of inappropriate, the driver’s options for a concerns expressed above, the Agency time accumulated before the designated comfortable or suitable resting location believes enforcement of drivers’ rights single off-duty pause and immediately are likely to be limited. If there is no in this matter would be difficult at best. following the off-duty pause could not lounge or similar location where the Based on the commenters’ concerns exceed 14 hours, irrespective of the duty driver can relax in a comfortable seat or about the ways in which drivers may be status recorded before and after the recliner, take a nap, read a book, or have compelled by their employers, shippers, designated break. The driver would be access to multi-media entertainment, and receivers to extend their days prohibited from operating a CMV until the value of the off-duty pause is involuntarily, the Agency believes it is there was a break of at least 10 diminished. This is especially the case unclear whether the off-duty period

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would provide a meaningful for the break. As explained in greater longer compliance period should be opportunity for drivers to rest. There detail above, the Agency has decided considered, allowing them time to would be challenges documenting the not to adopt that proposal. program changes consistent with this circumstances surrounding drivers’ Comments About the Compliance final rule. Although some aspects of the schedules. It would be complicated to Date for the Final Rule. final rule theoretically could have a demonstrate whether taking the break OOIDA and the Intermodal shorter effective date, FMCSA agrees was a reasonable expectation that a Association of North America (IANA) with the commenters suggesting that a supervisor would have, given a specific recommended that the proposed rule go single date is needed to minimize driver’s schedule at that moment, or into effect as soon as possible, stating confusion. With the elimination of the whether the break represented an that it would improve highway safety. pause provision and market pressure employer’s imposition on the driver The National Propane Gas Association from motor carriers, FMCSA believes through unplanned and abrupt changes and Keep Truckin, Inc. recommended a the timeline for reprogramming ELDs to the schedule. compliance date less than 6 months can be shorter than reflected in the This final rule gives drivers with a after the effective date, regardless of comments. sleeper berth additional flexibility when ELD concerns. Wright Knox Motor Considering these facts, FMCSA operating under the split sleeper berth Carrier, Inc. commented that it could believes that a 120-day effective date cycle. Further, FMCSA anticipates that comply within 6 months. The Pipeline without a delayed compliance period is drivers of sleeper berth equipped trucks Contractors Association recommended a appropriate. would likely have opted to use the compliance period of 6 months, stating Comments About Economic Issues. sleeper berth exception rather than the that such a timeframe would result in The Small Business Administration pause in any case. cost savings to it members and (SBA) recommended that FMCSA Based on the reasons discussed above, customers. consider the impact of the proposed rule the Agency believes the split-duty ATA recommended that FMCSA on small businesses, and especially option should be deferred until collaborate with CVSA and ELD vendors those raised in Regional Regulatory additional data can be collected on how to arrive at a single compliance date Reform Roundtables. These included it would be used and who would (rather than phasing in the rule). CVSA complaints about ELD requirements and determine its use. likewise recommended a single requests for relief from HOS Comments About Petitions for compliance date rather than a phase-in requirements that are impracticable Rulemaking Previously Submitted to and recommended that FMCSA consult because of the lack of sufficient safe FMCSA. with ELD manufacturers. Conversely, stopping locations for drivers. A few commenters, mostly industry associations recommended that Advocates asserted that FMCSA failed individuals and drivers, endorsed the a 6-month phase-in be adopted. to provide any relevant, meaningful changes for increased flexibility EROAD said that a compliance date of analysis or evidence to support the proposed by OOIDA. However, the at least 6 months would be necessary to conclusion that the proposed rule had American Fuel and Petrochemical accommodate ELD manufacturers, and potential cost benefits. Advocates said Manufacturers argued that FMCSA provided a breakdown of the time and that FMCSA ‘‘cites several benefits should delay the adoption of the OOIDA methodology needed for discrete tasks. related to dealing with congestion and petition and not finalize the split-duty The Trucker Alliance and Trimble detention times which are factors not provision due to the lack of scientific Transportation Mobility recommended a necessarily aligned with fatigue and rest data. compliance date of at least 9 months needs of drivers.’’ Advocates also stated CVSA suggested that FMCSA grant its after adoption of the rule to that suggesting that the proposal will petition to set a maximum distance that accommodate ELD providers. The benefit drivers by increasing flexibility the personal conveyance provision may National Association of Manufacturers to rest when tired fails to acknowledge be used under the final rule. CVSA and Garmin International recommended that breaks will likely be taken in argued that the current guidance for a 12-month compliance date. response to logistical concerns and not personal conveyance allows drivers to TruckerNation argued that extensive in terms of fatigue. Advocates drive several hours, possibly increasing ELD software updates by manufacturers concluded that the proposed rule may fatigue and risking safety. would be necessary to ensure very well lead to reduced consolidated Advocates agreed with FMCSA’s compliance with the final rule. sleep, schedule changes to fit carrier denials of the TruckerNation, USTA, Schneider National Holdings, Inc. interests over driver fatigue and health, and UDA petitions, because they would recommended a compliance date 12 to weakened public safety, and other allow drivers to operate for long periods 18 months after the proposed rule’s detrimental costs of long working and without a sufficient sleep period. implementation. driving hours. FMCSA Response: The normal The USTA requested a ‘‘soft’’ Schneider National Holdings, Inc. Agency process for handling petitions enforcement period to accommodate commented that the proposed rule’s cost for rulemaking is set forth in 49 CFR affected parties’ learning curves. One analysis failed to consider compliance part 389, subpart B—Procedures for driver asked if the ‘‘Big Road’’ app costs associated with training law Adoption of Rules. FMCSA declines to would be uploaded with the pause enforcement and drivers, comparing this discuss CVSA’s petition on personal button and if the proposed rule would against the 2005 rule. conveyance, originally filed on go into effect immediately. Institute for Policy Integrity December 17, 2018, as the Agency will FMCSA Response: FMCSA believes commented that FMCSA failed to issue a separate decision on this matter that the proposed changes will be consider a sufficiently broad range of pursuant to part 389 rulemaking positive for the industry, and that an alternatives, faulting the overly-narrow procedures. OOIDA petitioned FMCSA early compliance date would be ideal, goal of increasing flexibility. to allow property-carrying CMV drivers as suggested by the OOIDA comments. FMCSA Response: The specific to take a single off-duty rest break for up However, there are other factors to impacts mentioned by the SBA Office of to 3 consecutive hours once per 14-hour consider. Advocacy’s Regional Regulatory Reform driving window. That rest break would Many commenters, particularly those Roundtables include complaints about pause the 14-hour clock for the duration from ELD manufacturers, believe a ELD requirements and inadequate

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parking spaces. Measures to address during planting and harvesting periods, NTSB’s comment emphasized the concerns about ELD requirements or as determined by each State, to drivers need for ‘‘science-based evidence.’’ CMV parking are outside of the scope of transporting Although ELDs could provide useful this rulemaking. (1) Agricultural commodities from the safety data, as TIA suggested, the As for the commenter that said source of the agricultural commodities Agency is required by statute to use FMCSA failed to consider carrier to a location within a 150 air-mile such data ‘‘only to enforce the compliance and law enforcement radius from the source; Secretary’s motor carrier safety and training costs, it should be noted that (2) Farm supplies for agricultural related regulations, including record-of- training costs for new entrants are purposes from a wholesale or retail duty status regulations’’ (49 U.S.C. included in the costs estimated for the distribution point of the farm supplies 31137(e)(1)). In other words, FMCSA Entry-level Driver Training rule,56 so it to a farm or other location where the can use ELD data for enforcement would be double-counting to include farm supplies are intended to be used purposes, but it may not use data those costs in the analysis for this rule. within a 150 air-mile radius from the collected directly from drivers’ ELDs for FMCSA added costs for law distribution point; or broader statistical or research purposes. enforcement training in the RIA for this (3) Farm supplies for agricultural More broadly, as described throughout final rule. The Agency notes that purposes from a wholesale distribution this document, the Agency believes that existing funds allocated through the point of the farm supplies to a retail it is indeed using the best available MCSAP are used for law enforcement distribution point of the farm supplies ‘‘science-based evidence’’ in training and can be used to cover State within a 150 air-mile radius from the promulgating this final rule. To the law enforcement training costs. Training wholesale distribution point.’’ extent a scientific result can be costs for new inspectors would be This exception is statutory and was ascertained, fatigue science does not, by covered by the costs allocated for most recently amended in Section itself, dictate a policy outcome. Fatigue existing training requirements, and 32101(d) of the Moving Ahead for science simply provides information would not be attributable to this final Progress in the 21st Century Act, which about the levels of fatigue that a person rule. extended the radius of the HOS experiences under certain conditions. As for the suggestion that that the exception from 100 air-miles to 150 air- Congress recognized the need for Agency failed to consider a sufficiently miles from the source (Pub. L. 112–141, balanced rulemaking by requiring the broad range of alternatives, FMCSA 126 Stat. 405, 778, July 6, 2012). Section Agency to consider, among other things, notes that its approach to regulatory 12104 of the Agriculture Improvement the ‘‘costs and benefits’’ of proposed alternatives was based on the guidance Act of 2018 (Pub. L. 115–334, 132 Stat. rules (49 U.S.C. 31136(c)(2)(A) and provided by the Office of Management 4490, 4942, Dec. 20, 2018) also amended 31502(d)). and Budget (OMB) in Circular A–4 the definition of ‘‘livestock.’’ Those In the Agency’s judgment, the (‘‘Regulatory Analysis: A Primer.’’) transporting agricultural commodities elements of the NPRM that are adopted Circular A–4 suggests that agencies and livestock meeting the relevant today make useful, but only consider the preferred option and at definition can use this exception. This incremental, changes to enhance least one alternative that is less stringent final rule does not address agricultural operational flexibility. As discussed and one alternative that is more issues. On a separate rulemaking track, throughout the preamble, FMCSA stringent. Because the HOS rule is the Agency published an ANPRM believes that this final rule is safety- comprised of separate provisions that seeking comment on the potential neutral. affect different aspects of HOS clarification of the definitions of With respect to ELDs, the revisions to compliance, FMCSA considered ‘‘agricultural commodities’’ or the short-haul provision ensures that alternatives to each individual provision ‘‘livestock’’ in section 395.1(k) (84 FR more deliveries within the expanded 14- and followed OMB’s guidance to 36559, July 29, 2019). Any changes to hour workday will limit the amount of consider more and less stringent the agricultural commodity definitions driving that can be done, and the alternatives to the Agency’s preferred will be handled in that rulemaking, not maximum driving time remains limited option. in this final rule. to 11 hours; conversely, driving closer Comments About the HOS Exception Comments on ELDs. to the expanded 150 air-mile radius will for the Transportation of Agricultural NTSB stated that a science-based limit the number of deliveries that can Commodities. safety evaluation of the current HOS be made. Carriers and drivers will have An industry association emphasized regulations combined with the more discretion in the number and the importance of the agricultural implementation of ELDs is needed geographic location of customers they commodity exception noted in the before changes should be made to the can serve, while not exceeding the time ANPRM. However, the association rules. NTSB argued that this is limit. asked the Agency to include additional necessary because FMCSA has failed to Outreach and Training. livestock commodities, such as animal present any evidence that the proposed TruckerNation asserted that robust feed and feed ingredients, and other changes will improve highway safety or training, guidance documents, and agricultural products sensitive to any evaluation of the potential operating policies should be developed temperature. The National Ready Mixed combined effects of relaxing multiple to enable effective communication and Concrete Association compared the time aspects of the regulations collaboration with stakeholders and law sensitivity of concrete to the agricultural simultaneously. NSC said FMCSA enforcement officers at all levels. exceptions and definitions. should support the use of ELDs and not FMCSA Response: As with all FMCSA Response: The HOS exception make any changes to their required significant rulemakings, FMCSA has for the transportation of agricultural usage. The Transportation been working to develop a complete commodities and farm supplies in Intermediaries Association (TIA) HOS implementation plan since the § 395.1(k) reads as follows: asserted that the ELDs provide a large start of this rulemaking effort. This plan ‘‘(k) Agricultural operations. The amount of real-time data which should includes training and support tools for provisions of this part shall not apply be used to update the regulations to Federal and State enforcement benefit the motor carrier industry. personnel. As outreach and 56 81 FR 88732, published December 8, 2016. FMCSA Response: communication with the motor carrier

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industry will be essential for an agricultural transportation, especially given FMCSA’s decision not to go effective roll-out, the Agency has also livestock. forward with a 3-hour pause in the developed a plan and corresponding Supporters of team operations driver’s duty day. The NPRM did not materials that will be disseminated now generally favor splitting sleeper berth propose to adopt any portion of the that the final rule has been published. time into two 5-hour segments to allow Canadian HOS rules, and the Agency Comments on Harmonization of U.S. drivers to trade places every few hours therefore cannot do so as part of this and Canada, and Inconsistent State and keep the CMV moving. Oversized rulemaking. HOS Regulations. and overweight cargo is often Both the Texas and California A few commenters suggested transported on special vehicles that intrastate HOS rules cited by reviewing and considering other HOS move slowly. The HOS limits can commenters are consistent with the regulations, particularly those of Canada therefore create problems for these variances from the FMCSRs allowed by and Texas. An anonymous commenter operations. § 350.341. In implementing the MCSAP noted that: ‘‘In Canada, we are allowed Agricultural interests that commented in the late 1980s, the Federal Highway 13 hours of total driving time and 14 on the NPRM emphasized the Administration, FMCSA’s predecessor hours of total on-duty time within a 16- perishability of livestock. The American agency, allowed State regulations for hour daily clock. Additionally, to reset Veterinary Medical Association stressed intrastate operations to remain less than our daily 16-hour clock we only need 8 the need to avoid longer transit times, fully ‘‘compatible’’ with the FMCSRs, hours of continuous off-duty or sleeper especially through mandatory stops providing the States were making berth time, however we are required to when animals in crowded trailers can progress toward ‘‘compatibility,’’ i.e., have 10 hours of total off-duty time experience heat stress. The National national uniformity. However, in 1991 within the daily 24-hour clock. The Pork Producers Council (NPPC) Congress directed that these ‘‘tolerance additional two hours of required off- generally supported the changes guidelines’’ with their intrastate duty time can consist of 30-minute proposed in the NPRM, though it variances be made permanent.57 Like increments of off-duty periods preferred a 6-hour, rather than a 7-hour, most States, Texas has availed itself of throughout the day.’’ sleeper berth period. However, the the variances allowed by § 350.341 to In responding to FMCSA’s proposed NPPC also argued that the distinction adopt standards for intrastate commerce 3-hour pause in the duty day, CVSA between the 14-hour driving window that are less stringent than the FMCSRs, noted that ‘‘the maximum work shift [in and the 11-hour drive-time limit should but California’s more stringent driving- Canada] for a driver is 16 hours, rather be eliminated. ‘‘Work is work, and if a time limit is also within its authority. than the U.S. 14-hour rule. Therefore, driver can be on-duty then the driver The NPRM proposed no changes to the CVSA suggests that FMCSA consider 2 should be free to continue driving if MCSAP variances and none are adopted additional hours, as opposed to 3 hours, they feel comfortable.’’ The NPPC today. to align with the Canadian HOS argued that a 14-hour driving limit is The Agency notes that industry requirements. The alignment would consistent with rules in Canada and representatives have occasionally stated make it easier for the motor carrier Australia, as well as the intrastate rules that they believe the Agency follows a industry to comply with the HOS of California and Texas. ‘‘one-size-fits-all’’ regulatory approach, regulations in both countries, FMCSA Response: The commenters even though the FMCSRs make special streamlining operations for the entire who suggested adopting Canadian HOS provision for a wide variety of motor transportation supply chain and would limits or the Texas rules applicable to carrier operations. Some of these provide a uniform ELD solution for intrastate commerce offered nothing provisions are based on statute, but cross-border operations which would beyond their opinion that these many were adopted by the Agency to make it easier for roadside safety regulations are preferable to the Federal accommodate the needs of particular inspectors to enforce.’’ limits adopted today. segments of the industry. The current An individual summarized the Texas Motor carrier operations in Canada rulemaking generated additional HOS rules as ‘‘No required 30-minute and the U.S. differ in important ways. requests for segment-specific HOS rules. breaks. 12-hour drive time 15 hour on- While trip lengths may be comparable, No such rules were proposed and none duty time. 8-hour sleeper berth or off- traffic density in Canada is much less are adopted today. However, many of duty. I believe this will help with and weather conditions are more the requests have been addressed in fatigued drivers and allow drivers to challenging. Longer Canadian driving limits and reduced off-duty times are other contexts or by other authorities. drive when they feel comfortable and Oversize and overweight cargo is geared to those operating conditions. In not when the log book says they have often eligible for special State permits, fact, Canada has special HOS to go.’’ One commenter who transports some of which include time limits (e.g., regulations for its far northern regions placardable quantities of hazardous no nighttime operations). Although that are not applicable to the rest of the materials complained that California parking these combinations may be country. (Similarly, the FMCSA has allows only 10 hours of driving time for difficult, careful route planning can different HOS rules specific to Alaska, operations in intrastate commerce. He minimize, if not avoid, such problems. 49 CFR 395.1(h).) The Canadian rules argued that all States should be required In any case, FMCSA has no authority to appear to be every bit as complex as to adopt Federal HOS limits. ABA also address parking shortages, and does not U.S. rules. Adopting some or part of commented in support of FMCSA rest believe that extended driving hours are them would entail a major re-training break standards invalidating all State a reasonable solution to the problems effort, not only for the clear majority of and local standards by field preemption, inherent in moving unusual cargo. U.S. drivers unfamiliar with Canadian asserting the importance of uniformity Supporters of team operations often rules, but also for the State enforcement in the transportation and shipping argue that drivers should be allowed to agencies that would have to revise their industries. split their sleeper berth time into 5-hour regulations and databases and then re- Other commenters, including drivers segments, separated by 5-hour driving and industry associations, suggested train all their officers. The CVSA adopting different HOS rules for major suggestion to (partially) harmonize U.S. 57 Intermodal Surface Transportation Efficiency sectors of industry, such as team and Canadian rules by adopting a 16- Act of 1991, Public Law 102–240, 4002(l), 105 Stat. operations, oversized freight, and hour driving window is not feasible, 1914, 2144, 1991.

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stints. While such a rule would keep the restriction from 100 air-miles to 150 air- as loading or unloading a truck, vehicle on the road almost miles to be consistent with the distance completing paperwork, or stopping for continuously, its implications for safety limitation for short-haul drivers that are fuel. Before this final rule, the break was are far from ideal. Drivers’ circadian not required to possess a commercial required to be off-duty, during which no rhythms would inevitably be scrambled driver’s license. work, including paperwork, could be as their 5-hour rest periods rotate Drivers and carriers using the short- performed and was triggered after 8 around the clock. Even if 5-hour rest haul exception are not required to use hours, regardless of driving time. periods were theoretically as restorative a RODS or ELD or take a 30-minute However, the changes to the 30-minute as the sleeper berth option adopted break. This extra time in the driving day break provision do not increase the today, obtaining quality rest in a moving has always been available to drivers, if maximum driving time during the work vehicle is problematic. FMCSA is aware they opted out of the short-haul shift or allow driving after the 14th hour of no research demonstrating that exception. This change allows drivers to from the beginning of the work shift. splitting sleeper berth time into retain that status while receiving The flexibility provided with this continually repeated 5-hour segments regulatory relief. change will allow normal breaks from ensures adequate rest. This final rule driving (i.e., from ‘‘time on task’’ in the B. Adverse Driving Conditions therefore adopts the sleeper berth research literature) to satisfy the requirements proposed in the NPRM. FMCSA adopts the proposed changes requirement, provided the break lasts at The transportation of livestock poses concerning the adverse driving least 30 minutes. unique challenges, and consequently exception. A driver who encounters receives specialized treatment. Congress adverse driving conditions is allowed D. Sleeper Berth has exempted drivers hauling livestock up to a 16-hour driving window (for FMCSA adopts the proposal allowing from the required 30-minute break.58 property carriers) within which to a driver additional flexibility in taking Drivers hauling livestock who qualify complete up to 13 hours of driving, or two off-duty periods under the sleeper for the statutory ‘‘covered farm vehicle’’ a 17-hour duty period (for passenger berth exception. One period must be at exception in § 390.39 are completely carriers) within which to complete up to least 7 consecutive hours spent in the exempt from the HOS rules and many 12 hours of driving. sleeper berth, paired with another other parts of the FMCSRs. The more In addition, FMCSA also modifies the period of at least 2 hours spent either in limited statutory provision for the definition of ‘‘adverse driving the berth or otherwise off-duty, if the transportation of ‘‘agricultural conditions,’’ to clarify the role of the two periods total at least 10 hours. commodities’’ in § 395.1(k)(1) exempts driver in determining when such When paired, neither qualifying period drivers from the HOS regulations while conditions are identified: counts against the 14-hour driving operating within a 150 air-mile radius of Adverse driving conditions means snow, window. (Prior to this final rule, the the ‘‘source’’ of livestock and other ice, sleet, fog, or other adverse weather shorter period counted against the commodities. Even if animals are being conditions or unusual road or traffic driving window.) Identical changes are transported a substantial distance, the conditions that were not known, or could not made to a parallel provision applicable exempt radius gives drivers about a 3- reasonably be known, to a driver in the State of Alaska found in hour addition to the normal 11-hour immediately prior to beginning the duty day § 395.1(h). or immediately before beginning driving after driving limit. Finally, Congress has a qualifying rest break or sleeper berth E. Compliance Date for the Rulemaking prohibited the use of Federal funds to period, or to a motor carrier immediately FMCSA believe that the flexibility enforce the ELD requirements against prior to dispatching the driver. transporters of livestock.59 The 14-hour provided by these changes will be driving limit proposed by the NPPC is This addition of the driver to the beneficial to the motor carrier industry. far beyond the scope of this rulemaking definition makes it clear that the driver A short effective date would therefore and will not be addressed. In any case, should be involved in the decision- be ideal, however, there are other factors longer hours are not the only solution to making, which should lessen the need to consider. The Congressional Review the transportation of animals. For for regulatory guidance to explain the Act (CRA) (5 U.S.C. chapter 8) requires example, livestock transporters seem to role of the driver in determining when a 60 day delay before a major rule, like make little use of team drivers to the conditions are identified. The this rule, can take effect. Additionally, address the problems they have changes to the other parts of the the need for ELD manufacturers to identified. definition, including referring to the update those systems that exceed the duty day, qualifying rest breaks, and minimum requirements, and to train VII. Discussion of the Final Rule sleeper berth period, simply update the drivers and enforcement personnel must A. Short-Haul Operations definition and reflect the changes and be considered. updates to the HOS regulations, rather FMCSA believes that an effective date In this final rule, FMCSA adopts most than using informal terminology (‘‘the 120 days after publication is of the changes proposed in the NPRM, run’’). The Agency declines to expand appropriate, given the actions required including extending the maximum the circumstances covered by the for full implementation. allowable workday for short-haul definition. property- and passenger-carrying CMV F. Appendix B to 49 CFR Part 385 drivers from 12 to 14 hours to C. 30-Minute Break Based upon this final rule, technical correspond with the 14-hour period FMCSA adopts the proposed change changes to the corresponding requirement for property drivers, and linking the mandatory break to paragraphs listing acute and critical extending the existing distance cumulative driving time rather than on- violations in 49 CFR part 385, Appendix duty time, and allowing an on-duty-not- B, VII. List of Acute and Critical 58 Sec. 5206(b)(1)(B)–(C), Fixing America’s driving break of at least 30-minutes, to Regulations are made. Surface Transportation Act, Public Law 114–94, 129 satisfy the requirement. Stat. 1312, 1537, Dec. 4, 2015. VIII. International Impacts 59 Sec. 131 of Title I of Division H of the Further The Agency notes that many CMV Consolidated Appropriations Act, 2020, signed on drivers interrupt their driving time The FMCSRs, and any exceptions to December 20, 2019. during normal business operations, such the FMCSRs, apply only within the

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United States (and, in some cases, and critical violations are distinctly However, the two periods must total at United States Territories). Motor carriers technical in nature; they simply update least 10 hours, equivalent to the 10 off- and drivers are subject to the laws and the list for purposes of clarity and duty hours required of drivers who do regulations of the countries in which comprehension to reflect regulatory not use sleeper berths. Neither period they operate, unless an international changes made elsewhere in the rule. counts against the driver’s 14-hour agreement states otherwise. Drivers and driving window. Other changes are carriers should be aware of the B. Part 395—Hours of Service of Drivers clarifying or technical. For example, the regulatory differences among nations in 1. Section 395.1 (Scope of Rules in This provision authorizing a team driver to which they operate. Canada- and Part) count time in the passenger seat while Mexico-domiciled drivers must ensure In subparagraph (b)(1), FMCSA the CMV is moving toward his/her compliance with U.S. HOS modifies the exception for drivers of sleeper berth break is modified to allow requirements while they are driving in property- and passenger-carrying CMVs up to 3 (rather than 2) hours in the passenger seat for consistency with the the U.S. encountering adverse driving A driver domiciled in the United minimum hours required in the berth conditions, allowing them to extend States may comply with the Canadian under this rule. Long-standing language their respective driving windows by a hours of service regulations while omitted from the NPRM that required a maximum of 2 hours, consistent with driving in Canada. Upon re-entering the driver using the sleeper berth exception the long-standing provision governing United States, however, the driver is to calculate available hours from the the extension of driving time. Other subject to all the requirements of Part end of the initial break period, is changes in this subparagraph are merely 395, including the 11- and 14-hour restored in this final rule for clarity. technical or clarifying. rules, and the 60- or 70-hour rules Provisions previously found in In subparagraph (e)(1), FMCSA applicable to the previous 7 or 8 paragraphs (g)(1)(i)(B) and (C) are modifies the short-haul exception for consecutive days. In other words, a eliminated as superfluous because these drivers operating either property- driver who takes full advantage of requirements are covered elsewhere in carrying or passenger-carrying CMVs, Canadian requirements may have to part 395. Finally, provisions in former under which time records can be used stop driving for a time immediately after § 395.1(g) specific to drivers of property- in lieu of ELDs or RODS, and supporting returning to the U.S. to restore carrying CMVs operating in Alaska are documents need not be submitted to the compliance with Part 395. Despite its removed and recodified in § 395.1(h)— motor carrier. This final rule extends the possible effect on decisions a U.S. driver addressing HOS requirements unique to must make while in Canada, this scope of this exception from a 100- to that State. interpretation does not involve an a 150-air-mile radius from the driver’s In paragraph (h), FMCSA revises the exercise of extraterritorial jurisdiction normal work reporting location and HOS exception applicable to drivers of (62 FR 16379, 16424; April 4, 1997). extends the driver’s maximum workday property-carrying CMVs in the State of from 12 to 14 hours, a period consistent Alaska. Provisions formerly found in IX. Section-by-Section Analysis with the general rule governing the § 395.1(g) specific to Alaska are This rulemaking seeks to provide maximum driving window applicable to recodified and consolidated in additional flexibility under the HOS drivers operating property-carrying paragraphs (h), specifically in (h)(1)(ii) rules in a manner that does not CMVs. All short-haul drivers remain and (iii), including provisions compromise safety. Specifically, it (1) subject to the existing limit on hours addressing required off-duty periods modifies the definition of ‘‘adverse spent driving—11 hours for drivers of and sleeper berth provisions. Provisions driving conditions’’ and extends a property-carrying CMVs requiring a CDL previously found in paragraph (g) that driver’s driving window by up to two and 10 hours for drivers of passenger- are eliminated because they are covered hours should adverse driving conditions carrying CMVs. Other changes in this elsewhere are added here, given that be encountered; (2) expands the scope subparagraph are merely technical or CMV drivers in the State of Alaska are of the short-haul exception for drivers of clarifying. For example, specific not covered by paragraphs § 395.3(a) property-carrying CMVs requiring a CDL references to the 14-hour duty window and (b) (property-carrying CMVs) or and for passenger-carrying CMVs; (3) for drivers of ‘‘ready-mixed concrete § 395.5 (passenger-carrying CMVs). modifies the sleeper berth rule; and (4) delivery vehicles’’ are eliminated, given Although not proposed in the NPRM, amends the mandatory 30-minute break the expansion of the duty day for all language is also added to this paragraph to give drivers subject to the rule less short-haul drivers to 14 hours. to address how a driver using the restrictive means of satisfying the Provisions previously found in sleeper berth exception calculates requirement. Additional technical § 395.1(e)(1)(iv), duplicating provisions available hours from the end of the changes are made in this final rule. limiting drivers’ hours under §§ 395.3 initial break period, consistent with Changes to the regulatory text proposed and 395.5, are eliminated as superfluous provisions of paragraph (g). The changes in the NPRM are noted below. and to avoid redundancy. are either technical or stylistic. For In subparagraph (g)(1), FMCSA example, language proposed in the A. Part 385—Safety Fitness Procedures modifies the general sleeper berth NPRM is modified to more closely track In Section VII of appendix B of part exception for drivers of property- language in the current rules, and to 385, the list of acute and critical carrying CMVs who elect to use this make clear that, under § 395.1(h), violations, is modified to match changes exception. Specifically, the Agency neither rest period under the sleeper made in part 395. Specifically, the replaces the requirement for 8 berth provision can exceed 10 hours. references to § 395.1(h)(1)(i), (ii), (iii), consecutive hours in the sleeper berth These changes are made for purposes of and (iv) are modified to reflect the and 2 additional hours, either in the clarity; except as noted above, changes redesignations, and text addressing berth or off-duty, or some combination largely reflect language included in the § 395.3(a)(3)(ii) is modified to reflect the thereof, with a requirement for at least NPRM. substantive changes in the 30-minute 7 (but less than 10) consecutive hours in rule. While the changes to this list were the sleeper berth and at least 2 2. Section 395.2 (Definitions) not included in the NPRM, their additional hours, either in the berth or FMCSA modifies the definition of inclusion on the designation of acute off-duty or some combination thereof. ‘‘adverse driving conditions,’’

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eliminating certain language addressing X. Regulatory Analyses increasing the current baseline 2018 conditions already covered, and values consistent with occupation- A. E.O. 12866 (Regulatory Planning and specific employment growth projections modifying the applicable standard to Review and DOT Regulatory Policies obtained from the Bureau of Labor encompass conditions ‘‘not known, or and Procedures as Supplemented by Statistics (BLS) Employment Projections [that] could not reasonably be known’’ E.O. 13563), and DOT Regulatory program.63 The BLS employment to clarify when the definition applies. Policies and Procedures Furthermore, rather than focus solely on projections for the following standard The Office of Information and the knowledge of the dispatcher, the occupational classifications were used: Regulatory Affairs has determined that definition is modified to reflect BLS SOC 53–3021 (Bus drivers, transit and this rulemaking is an economically knowledge of either the driver or the intercity) significant regulatory action under E.O. motor carrier at applicable points in BLS SOC 53–3022 (Bus drivers, school or 12866 61 Regulatory Planning and special client) 60 time. Additional clarifying changes Review, as supplemented by E.O. BLS SOC 53–3032 (Heavy and tractor-trailer were made. For example, the word 13563.62 It also is significant under DOT truck drivers) ‘‘immediately’’ is added to clarify the regulations because the economic costs BLS SOC 53–3023 (Light truck or delivery point in time that the applicable and benefits of the rule exceed the $100 service drivers) conditions must be known and the million annual threshold and because of The occupational categories noted reference to ‘‘unusual road and traffic the substantial Congressional and public above do not overlap exactly with the conditions’’ is modified to read interest concerning the HOS entire population of CMV drivers who ‘‘unusual road or traffic conditions’’ to requirements (84 FR 71714, Dec. 27, will be subject to this rule, primarily clarify either scenario would qualify. 2019). because there are some CMV drivers FMCSA also modifies the definition An RIA is available in the docket. who operate vehicles over 10,001 pounds but do not specifically declare of ‘‘on-duty time’’ by updating That document: • Identifies the problem targeted by their occupation as being a bus or truck paragraph (4)(iii) of the definition to this rulemaking, including a statement driver. However, as noted above, this align with § 395.1(g)(1)(i)(D) in this final of the need for the action; does not mean that those drivers are not rule. • Defines the scope and parameters of reflected in the baseline 2018 estimates the analysis; of CMV drivers produced above. All 3. Section 395.3 (Maximum Driving • Time for Property-Carrying Vehicles) Defines the baseline; and, CMV drivers, regardless of their • Defines and evaluates the costs and occupational category, are included in FMCSA revises paragraphs (a)(2) and benefits of the action. the estimates. The occupational (a)(3)(i) to remove superfluous language The RIA is the synthesis of research categories above represent and make stylistic changes, respectively. conducted specific to current HOS approximately 3.6 million employees in No substantive change is intended. In practices, stakeholder comments, and 2018, and combined are used to forecast paragraph (a)(3)(ii), the Agency modifies analysis of the impacts resulting from the future growth from 2018 through changes to the HOS provisions in this the 30-minute break requirement to 2029 based on the BLS estimates of final rule. focus on extended consecutive driving employees in those industries from 2018 periods rather than a driver’s time on- Affected Entities through 2028. BLS provides baseline 2018 values for duty. Thus, a driver may not drive more The changes in this final rule will the total number of employees in all of than 8 hours without an interruption of affect CMV drivers, motor carriers, and, the occupational categories noted, as at least 30 consecutive minutes. A except as otherwise exempt under well as estimates for 2028. An annual driver may satisfy the 30-minute period § 390.3T(f)(2). The HOS regulations compound growth rate for net overall by spending the time off-duty, on-duty apply to CMV drivers. FMCSA obtained growth in the total population of CMV (not driving), or in the sleeper berth, or driver count information, by carrier bus drivers and CMV truck drivers was any combination of these non-driving operation, from the Motor Carrier calculated from the growth in the statuses. The specific reference to time Management Information System number of employees in these in the sleeper berth is added for clarity. (MCMIS), which includes information occupations from 2018 to 2028 as As before, drivers operating under the submitted to FMCSA by motor carriers projected by BLS. The projected net short-haul exception (§ 395.1(e)) are not the first time the carrier applies for a growth in total employment for BLS subject to the 30-minute break DOT number, and biennially thereafter. SOC 53–3021 (Bus drivers, transit and requirement. Table 3 displays the 2018 estimate of intercity) from 2018 to 2028 is 6.1 CMV drivers from MCMIS. With the The Agency is not adopting the percent, which equates to a 0.598 current baseline annual number of percent annual compound growth rate. NPRM’s proposal to extend the driver’s 6,520,268 CMV drivers (478,184 The projected net growth in total 14-hour duty period by taking an off- passenger carrier CMV drivers and employment for BLS SOC 53–3022 (Bus duty break ranging from 30 minutes to 6,042,084 property carrier CMV drivers), drivers, school or special client) from 3 hours. FMCSA then estimated the future 2018 to 2028 is 4.3 percent, which baseline number of CMV drivers who equates to a 0.426 percent annual 60 In the NPRM, FMCSA posed a series of specific will be affected by this final rule compound growth rate. FMCSA then questions on the potential modification of the annually during the analysis period of computed a weighted average annual definition of ‘‘adverse driving conditions,’’ driven in large part by comments the Agency received to 2020 to 2029. These future baseline compound bus driver growth rate of the ANPRM. Specifically, the Agency requested projections were developed by 0.472 percent for these two occupational comment on whether the knowledge requirement categories. The projected net growth in ought to reside with the driver rather than 61 Executive Order 12866 of September 30, 1993. dispatcher, whether the lack of knowledge at time Regulatory Planning and Review. (58 FR 51735, 63 U.S. DOL, BLS. Employment Projections of dispatch be eliminated, and whether the October 4, 1993). Program. Table 1.2: Employment by detailed definition ought to encompass additional 62 Executive Order 13563 of January 18, 2011. occupation, 2016 and projected 2026. Available at: circumstances. See 84 FR at 44200, August 22, Improving Regulation and Regulatory Review. (76 http://www.bls.gov/emp/ind-occ-matrix/ 2019. FR 3821, January 21, 2011). occupation.xlsx, last accessed October 29, 2018.

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total employment for BLS SOC 53–3032 released from work within 12 hours estimate of drivers eligible for, and (heavy and tractor-trailer truck drivers) after coming on-duty, can submit their assumed to be operating under, the from 2018 to 2028 is 5.1 percent, which work schedule via time cards, and short-haul exception. As such, FMCSA equates to a 0.498 percent annual operate within a 100 air-mile radius of does not include a cost savings estimate compound growth rate. The projected their work reporting location. Under resulting from this rule. net growth in total employment for BLS this final rule, drivers can qualify for the FMCSA has not received an SOC 53–3033 (light truck or delivery HOS short-haul exception provided they exemption request that references the service drivers) from 2018 to 2028 is 4.4 return to the normal work reporting air-mile radius within which a driver percent, which equates to a 0.429 location and are released from work may operate and still maintain percent annual compound growth rate. within 14 hours after coming on-duty, eligibility for the short-haul exception. FMCSA then computed a weighted can submit their work schedule via time FMCSA did not receive data or average annual compound truck driver cards, and operate within a 150 air-mile information on the number of drivers growth rate of 0.474 percent for these radius of their work reporting location. that routinely operate between 100 and two occupational categories. Beyond In the RIA for the NPRM, FMCSA did 150 air-miles, and will thus be newly 2028, these annual compound growth not estimate an increase in the number covered by the short-haul exception. rates were assumed to be the same out of drivers that would be eligible for the However, some commenters stated that to the final year of the analysis period short-haul exception based on the they have drivers that routinely operate of 2029. FMCSA applies the weighted alternatives presented but asked for within 100 air-miles, but on occasion average annual compound growth rate comments on how the rule would affect their operations require them to drive to the population of CMV bus and truck the number of drivers operating under up to 150 air-miles from their work drivers to estimate the affected driver the exception. reporting location. These drivers are population throughout the period of In the ELD rule, FMCSA anticipated generally eligible for the short-haul analysis, as shown in Table 3. that all drivers employed by passenger exception, but must keep track of how Due to exceptions and exemptions and private non-passenger (i.e., often they operate beyond 100 air-miles. from the HOS regulations, the total CMV property) carriers qualifying for the If this occurs more than 8 times in a 30- driver population must be broken down short-haul exception would be able to day period the driver would no longer based on specific criteria to isolate the take advantage of the exception.64 be eligible, and would be subject to population that will be affected by each Carriers report their driver employees to ELDs. This rule will remove the provision of this final rule. HOS FMCSA based on whether they operate confusion and administrative hassle of regulations are dependent on the beyond or within a 100 air-mile radius. estimating the number of times each vehicle operated; for example, drivers of The number of drivers reported to driver has driven between 100 and 150 passenger-carrying vehicles must operate within a 100 air-mile radius was air-miles. It will not, necessarily, operate under regulations specific to used as a proxy estimate of drivers increase the number of drivers that are those vehicles and drivers of non- operating under the short-haul covered by the short-haul exception or passenger (i.e., property) carrying exception. This is not an exact count of decrease the number of ELDs in use. vehicles must operate under regulations drivers who operate under the short- Therefore, FMCSA is not estimating an specific to those vehicles. For this haul exception because it does not increase in the number of drivers reason, Table 3 provides the CMV driver include drivers that sometimes operate operating under the short-haul count based on the type of operation within 100 air-miles and on these exception for this rule and has (passenger vs. property) in column (B) occasions, operate as short-haul, and determined that the carrier-reported and column (C). Column (D) is the total because it includes drivers who operate information is a good proxy for the CMV driver count. Column (E) is a within 100 air-miles but may not return count of drivers who are eligible for, subset of the property carrier CMV to their work reporting location within and will operate under, the short-haul drivers in column (C). 12 hours. In preparation for the final exception. The potential cost savings gained by rule, FMCSA reviewed the comments In 2018, there were 1.4 million motor carriers under this final rule are received and the short-haul exception interstate non-passenger drivers and 1.7 in part a function of the estimated requests to determine how the rule million intrastate non-passenger drivers number of CMV drivers subject to the would affect the number of drivers reported to operate solely within 100 30-minute break requirement. This rule operating under the short-haul air-miles. Lastly, CMV drivers in Alaska refers to drivers affected by the 30- exception. are not subject to the 30-minute break minute break requirement as CMV truck With respect to the extension of the requirement. In 2018, there were drivers. Those drivers operating workday from 12 to 14 hours, FMCSA approximately 19,000 drivers operating passenger carrying vehicles are not did not receive specific information on in Alaska. FMCSA estimated the CMV subject to the 30-minute break the increase in drivers that would be truck drivers currently subject to the 30- requirement. For this reason, the driver eligible for the short-haul exception. minute break requirement by counts in Column (E) are from carriers However, the approximately 10 subtracting from the total 6.4 million that do not identify themselves as exception requests relating to an CMV drivers, the passenger carrier CMV passenger carriers. Second, those drivers extension of the time required to return drivers (478,184), the inter- and operating under the short-haul to the work reporting location claim to intrastate CMV truck driver employees exception are not subject to the 30- cover between 100,000 and 150,000 that operate within a 100 air-mile radius minute break requirement. drivers. FMCSA assumes that these (3.1 million), and the 19,000 CMV Previously, drivers could qualify for drivers operate within 100 air-miles, but drivers in Alaska. In 2018, that total is the HOS short-haul exception in do not routinely return to their work 2.9 million CMV truck drivers subject to § 395.1(e)(1) if they return to their reporting location within 12 hours. the 30-minute break requirement normal work reporting location and are These drivers were included in the (Column (E) below).

64 U.S.DOT, FMCSA. ‘‘Regulatory Evaluation of 2015. Presented in Table 10 on page 34 and www.regulations.gov/document?D=FMCSA-2010- Electronic Logging Devices and Hours of Service discussed on page 33. Available at: https:// 0167-2281 last accessed on: December 6, 2018. Supporting Documents Final Rule.’’ November

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TABLE 3—CMV DRIVER COUNTS

CMV drivers Passenger Property Total CMV currently subject Year carrier CMV carrier CMV drivers to the 30-minute drivers drivers break requirement

(A) (B) (C) (D) = (B) + (C) (E)

2018 ...... 478,184 6,042,084 6,520,268 2,944,705 2019 ...... 480,444 6,070,752 6,551,196 2,958,677 2020 ...... 482,714 6,099,556 6,582,270 2,972,715 2021 ...... 484,994 6,128,497 6,613,491 2,986,820 2022 ...... 487,286 6,157,575 6,644,860 3,000,991 2023 ...... 489,588 6,186,791 6,676,378 3,015,230 2024 ...... 491,901 6,216,145 6,708,046 3,029,536 2025 ...... 494,225 6,245,639 6,739,864 3,043,911 2026 ...... 496,560 6,275,273 6,771,833 3,058,353 2027 ...... 498,906 6,305,047 6,803,953 3,072,864 2028 ...... 501,263 6,334,963 6,836,226 3,087,444 2029 ...... 503,631 6,365,021 6,868,652 3,102,093

Summary of Costs driving rather than 8 hours of on-duty category (3) will be unaffected by the time. The final rule will thus reduce the changes. Drivers who fall into category FMCSA evaluated the impacts number of drivers required to take a (2) will receive regulatory relief from the expected to result from the changes in break (i.e., those drivers whose changes, estimated as regaining a full this final rule and anticipates that there schedules include on-duty breaks from half hour per shift. Additionally, drivers will be no new regulatory costs or driving will not be required to also take who drive more than 8 hours (category increases in existing regulatory costs for an off-duty break) and it also allows for 1), will also receive regulatory relief by the regulated entities. The final rule flexibility in how drivers spend their the allowance of on-duty, non-driving will, however, improve efficiency by time if they are not driving. The final time to meet the 30-minute break allowing drivers to shift their drive and rule will result in cost savings to work time to mitigate the effect of requirement, estimated as regaining half carriers in the form of avoided losses in of the half hour break time (15 minutes) uncertain variables, resulting in a driver productivity. reduction in costs, or cost savings, to per shift. The Agency multiplied the FMCSA values the reduction in driver time estimated to be regained by drivers drivers and motor carriers. The Agency time spent in nonproductive activity as anticipates that the changes to each per affected shift, the number of affected the opportunity cost to the motor shifts, and the estimated driver provision will result in cost savings, carrier, which is represented by the now quantitatively estimates the motor population in each driver group to attainable profit, using three variables: produce column (A) in Table 4. carrier cost savings attributable to the driver hours available for labor (i.e., 30-minute break provision, those hours that are currently required As shown in Table 4, the estimate of quantitatively estimates the training to be off-duty, but could be on-duty but cost savings is the product of the total costs to the Federal Government not-driving under the final rule), an hours saved by drivers (column A), and attributable to the rule, and qualitatively estimate of a typical average motor the estimated hourly profit for motor assesses cost savings of the remaining carrier profit margin, and the marginal carriers (column B). FMCSA estimates impacts resulting from this final rule. cost of operating a CMV. The estimation the cost savings resulting from the changes to the 30-minute break 30-Minute Break of driver hours stems from the populations of drivers who either (1) provision to be $278.4 million (or a cost This final rule will allow on-duty, drive more than 8 hours in an average of ¥$278.4 million) on an annualized non-driving time to fulfill the 30-minute shift, (2) work more than 8 hours in an basis at a 3 percent discount rate, and break requirement, as opposed to the average shift but do not drive more than $274.1 million (or a cost of ¥$274.1 current off-duty requirement. Also, the 8 hours, or (3) work less than 8 hours million) on an annualized basis at a 7 break will be required after 8 hours of in an average shift. Drivers who fall into percent discount rate.

TABLE 4—TOTAL AND ANNUALIZED MOTOR CARRIER COST SAVINGS DUE TO CHANGES IN BREAK PROVISION [Millions of 2018$]

CMV drivers currently Total cost Total cost subject to the Total hours Total cost savings— savings— Year 30-minute saved Profit per hour savings— 3 percent 7 percent break undiscounted discount rate discount rate requirement

(A) (B) (C = A × B)

2020 ...... 2,972,715 27,376,449 $3.59 ($98.3) ($95.4) ($91.8) 2021 ...... 2,986,820 82,502,528 3.59 (296.1) (279.1) (258.6) 2022 ...... 3,000,991 82,893,979 3.59 (297.5) (272.3) (242.9) 2023 ...... 3,015,230 83,287,288 3.59 (298.9) (265.6) (228.0) 2024 ...... 3,029,536 83,682,462 3.59 (300.3) (259.1) (214.1) 2025 ...... 3,043,911 84,079,512 3.59 (301.8) (252.7) (201.1)

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TABLE 4—TOTAL AND ANNUALIZED MOTOR CARRIER COST SAVINGS DUE TO CHANGES IN BREAK PROVISION—Continued [Millions of 2018$]

(A) (B) (C = A × B)

2026 ...... 3,058,353 84,478,446 3.59 (303.2) (246.5) (188.8) 2027 ...... 3,072,864 84,879,272 3.59 (304.6) (240.5) (177.3) 2028 ...... 3,087,444 85,282,000 3.59 (306.1) (234.6) (166.5) 2029 ...... 3,102,093 85,686,640 3.59 (307.5) (228.8) (156.3)

Total 10-Year Cost Savings ...... (2,375) ($1,925) Total Annualized Cost Savings ...... (278.4) (274.1) Notes: (a) Total cost values may not equal the sum of the components due to rounding. (The totals shown in this column are the rounded sum of unrounded components.) (b) Values shown in parentheses are negative values (i.e., less than zero) and represent a decrease in cost or a cost savings.

Time is a scarce resource, and FMCSA flexibility beyond the preferred 14-hour driving window. A driver who recognizes that forced off-duty time is alternative; however, it would not used the previous sleeper berth not always the drivers’ best alternative. impact driver behavior relative to the provision today was required to include Some commenters claimed that the rigid preferred alternative, and thus would the shorter rest period in the calculation off-duty requirement forces drivers to result in an equivalent motor carrier of the 14-hour window, resulting in an rest when they are not tired and cost savings. available 12 hours to complete up to 11 hours of driving. Under this final rule, penalizes them for resting. Though the Sleeper Berth Agency does not necessarily agree with drivers will be provided the ability to these commenters’ characterization of Drivers qualifying for the previous choose between split-rest options that the off-duty requirement, it is HOS sleeper berth provision in will not reduce their available work reasonable to assume that the current § 395.1(g)(1)(i)(A) and (ii)(A) must, time because the shorter rest period will HOS regulations are imposing an before driving, accumulate the be excluded from the calculation of the opportunity cost on drivers that could equivalent of at least 10 consecutive 14-hour driving window. The Agency, be alleviated by providing drivers hours off-duty. The equivalent refers to however, lacks data on the use of the two periods that need not be greater flexibility. In recent RIAs for previous sleeper berth provision, and consecutive: at least 8 but less than 10 non-HOS regulations, FMCSA has the number of drivers that will use it consecutive hours in a sleeper berth, valued the opportunity cost of drivers’ under the final rule. and a separate period of at least 2 hours time using their wage rate. In other FMCSA received some information either in the sleeper berth or off-duty, or words, the increased flexibility from commenters regarding how often any combination thereof. This final rule provided by the final rule will result in some drivers use the current sleeper will continue to allow drivers using the a reduction in costs, or a cost savings, berth provisions and how usage might sleeper berth to obtain their required to drivers equal to the number of hours change under the new provision, with off-duty time by taking fewer hours in saved multiplied by the driver wage some expecting drivers to increase their the sleeper berth. However, drivers rate. The Agency did not account for the usage and others expecting that the new using this option will be required to provision will not be widely used. opportunity cost of the driver’s time in obtain one rest period of at least 7 Despite the comments received on this the 2011 RIA, or in the 2019 NPRM, and consecutive hours in the sleeper berth, issue, FMCSA still lacks definitive for consistency does not monetize this paired with another period of at least 2 information that would be needed to component of the final rule’s savings. hours, such that at least 10 hours of off- estimate usage among the entire FMCSA considered eliminating the duty time is achieved. Neither period population of drivers. In addition, break requirement entirely. Drivers will count against the 14-hour driving FMCSA also lacks data on the number would still use off-duty time when window. of trucks that are equipped with sleeper needed or break-up the driving task The sleeper berth provision in this berths and the impact that schedule using on-duty/non-driving time. Drivers final rule allows for additional changes might have on motor carrier in group 1 would likely regain 15 flexibility in a driver’s duty day by (1) operations. Therefore, FMCSA did not minutes of on-duty time, and drivers in providing for an optional 1-hour evaluate the impacts of schedule group 2 would likely regain 30 minutes reduction in the amount of time that changes that may occur because of this of on-duty time. As in the preferred drivers are required to spend in the final rule. alternative, FMCSA assumes that sleeper berth, and (2) excluding both FMCSA also considered retaining the drivers in group 1 would only regain 15 rest periods when calculating the 14- current split option of 8⁄2 but excluding minutes because they need personal hour driving window. The Agency the shorter rest period from the time to eat, drink, etc. That time would expects that carriers and drivers could calculation of the 14-hour driving continue to be off-duty regardless of realize efficiency gains by the reduction window. Excluding the shorter rest eliminating the requirement. in time required to be in the sleeper period from the calculation of the 14- Elimination of the break requirement berth and the exclusion of the shorter hour driving window would result in would seem to provide additional off-duty period in the calculation of the the same per-trip cost savings estimated

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for the preferred alternative but would use the 14- or 15-hour duty day in increase market demand or result in an limit the driver’s flexibility. The § 395.3 or § 395.5, but could choose not increase to aggregate VMT. Rather, more preferred alternative will allow drivers to use the option to avoid keeping carriers might use the short-haul to use a 7⁄3 split option, which provides RODS. exception. Carriers will have the flexibility for drivers to shift an Additionally, drivers currently flexibility to meet market demands more additional hour of their off-duty time in qualifying for previous HOS short-haul efficiently while maintaining eligibility the most optimal way for their current exception had to stay within 100 air- for the short-haul exception. One situation. miles of their work reporting location. commenter on the HOS ANPRM FMCSA also considered expanding In this final rule, FMCSA extends that explained that the increased flexibility the sleeper berth options to allow a 7⁄3 radius from 100 air-miles to 150 air- in the air-mile radius would reduce the split, while continuing to count the miles, consistent with the radius number of vehicles necessary for their shorter rest period in the calculation of requirement for the other short-haul operation, and thus would result in cost the 14-hour driving window. Drivers exceptions in § 395.1(e)(2). savings of approximately $1.7 million making use of this alternative would In the ELD rule, FMCSA anticipated per year. Again, motor carriers are very then have an 11-hour window within that all drivers employed by passenger diverse in their operating structures, which to drive 11 hours. This and private non-passenger (i.e., and FMCSA cannot extrapolate from alternative provides a false sense of property) carriers qualifying for the one carrier’s cost savings to determine flexibility due to its impracticality, and short-haul exception would be able to the cost savings to all carriers. would limit the use of the option to take advantage of the exception. FMCSA asked for comments from the those drivers that don’t anticipate However, FMCSA received comments public on the cost savings that would be reaching the maximum driving or work on the HOS ANPRM from carriers expected to result from not having to time. Additionally, it would eliminate discussing their business practices and comply with the ELD requirements. normal operating conditions, and how the cost savings resulting from increased Commenters noted that cost savings the lack of flexibility in the 12-hour productivity discussed in the preferred could range from $240 to $1,700 per workday limited their ability to take alternative. This alternative does not truck, including the costs for purchase advantage of the short-haul exception. meet the Agency objective of providing of the device, data maintenance, and On many shifts, drivers returned to their drivers the ability to take needed rest technical support. Comments from work reporting location within 12 breaks while ensuring opportunity for industry associations stated that the cost hours, but there are some occasions an adequate rest period. saving would be at least $500 to $1,000 when drivers needed an additional 2 per truck, including costs for Short-Haul Operations hours in their workday. This extra time equipment, maintenance, repair, and Previously, under § 395.1(e)(1), beyond 12 hours could result from drivers did not have to prepare RODS or detention time, longer-than-expected back office administration. Another use an ELD if they met certain customer service stops, traffic, or other commenter stated that due to the conditions, including a return to their unforeseen events. When this occurred diverse nature of the motor coach work reporting location and release more than 8 days in a 30-day period, the industry, some segments of the driver from work within 12 consecutive hours. driver had to prepare daily RODS using population would continue to need Drivers operating under this provision an ELD as required by § 395.8 ELDs, and FMCSA agrees with this were permitted a 12-hour workday in (a)(1)(iii)(A)(1). Due to the uncertainty comment. FMCSA is unable to estimate which to drive up to 11 hours (for surrounding the driver’s eligibility at the population of drivers under the passenger carriers, up to 10 hours) and the beginning of the workday, the short-haul exception that would the motor carrier was required to carrier could choose to have their driver continue to require ELDs, and FMCSA maintain time records reflecting certain operate as though he or she was not is thus unable to quantify the expected information. Specifically, the motor eligible for the short-haul exception. cost savings for the short-haul driver carrier that employed the driver and This resulted in unnecessary ELD population that will no longer need utilized this exception was required to expenses. One commenter on the HOS ELDs under this final rule. maintain and retain for a period of 6 ANPRM estimated that the proposal The Agency agrees with other months accurate and true time records would reduce the required ELDs for its commenters who stated that the showing: the time the driver reported heavy-duty service vehicles by 84 proposed changes to the current short- for duty each day; the total number of percent, resulting in annual cost savings haul provisions would provide hours the driver was on-duty each day; of $1.5 million. While this comment is increased flexibility for both motor the time the driver was released from informative and suggests that this final carriers and drivers who utilize the duty each day; and the total time for the rule will result in cost savings, FMCSA exception. FMCSA believes that the preceding 7 days in accordance with cannot extrapolate from one carrier’s extension of the 12-hour limit to 14 § 395.8(j)(2) for drivers used for the first cost savings to determine the cost hours, and the 100 air-mile radius to time or intermittently. savings to all carriers. Thus, while 150 air-miles will provide motor carriers Under § 395.3(a)(2) and (3), other FMCSA expects the final rule to result the necessary flexibility to spend quality property-carrying CMV drivers not in cost savings for the affected entities, time with customers, respond to utilizing the short-haul exception have those impacts are not quantified. changes in market demand such as peak a 14-hour driving window in which to The extension of the air-mile radius holiday delivery times, and reduce the drive up to 11 total hours. Under by 50 air-miles will afford drivers administrative burden of determining § 395.5(a)(1) and (2), CMV drivers additional flexibility and allow carriers how often a driver has gone beyond 12 operating passenger-carrying CMVs can to reach customers farther from the hours or 100 air-miles in any 30- operate for up to 15 hours after coming work reporting location while consecutive day period. The changes to on-duty. However, unless otherwise maintaining eligibility for the short-haul the short-haul exception will not extend excepted, these drivers must maintain exception. Extending the air-mile radius the workday beyond the current long- RODS, generally with an ELD. The will not extend the driving time. haul driving window, thus FMCSA has drivers qualifying for the § 395.1(e)(1) FMCSA does not anticipate that no reason to believe that the rule would exception previously had the option to extending the air-mile radius will negatively impact safety.

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FMCSA also considered limiting the driving time. This change will provide includes updating the HOS proposal to an extension of the time drivers with additional options to requirements database and minor required for drivers to return to their determine the best solution based on programing changes to the software work reporting location from 12 to 14 their situation. component which consist of five steps: hours, without changing the air-mile The Agency anticipates that the Developing a requirements analysis, radius requirements. This alternative increased options and flexibility will design, coding, testing, and deployment would decrease the population eligible result in cost savings to drivers, but is of the updates. unable to quantify them due to a lack of for the short-haul exception relative to The Agency will incur one-time costs the preferred alternative by removing data regarding the use of the adverse in the first year of the analysis period eligibility for those drivers operating driving exception. FMCSA appreciates for the training of enforcement between 100 and 150 air-miles. the feedback and information received personnel. The Agency intends for all Decreasing the population affected by from commenters regarding specific training costs related to this final rule to this final rule would decrease any cost motor carrier experience with the savings resulting from it. adverse driving condition provision. accrue in 2020. First, a contractor is Commenters were split on the issue, developing training materials at an Adverse Driving Conditions with some stating that they expect an estimated cost of $90,000. The Agency Under the previous regulations, increase in its use and others not intends to then utilize these materials drivers qualifying for the HOS adverse expecting to see an increase. FMCSA and implement a ‘‘train-the-trainer’’ driving conditions exception in believes that a decrease in use is model to train inspectors in field § 395.1(b)(1) could drive for no more unlikely to result from the changes, but locations. This process will involve the than 2 additional hours beyond the it is not clear if or how much of an training of three master trainers over the maximum driving time allowed under increase may result on an industry-wide course of 3, 8-hour training days (24 § 395.3(a) or § 395.5(a) if they level. Given this uncertainty, FMCSA is hours in total for each master trainer). encountered adverse driving conditions unable to estimate the change in use of Next, the 3 master trainers will train 100 after dispatch. The previous provision the adverse driving condition provision trainers from across the country, again did not allow for the extension of the at this time. over the course of 3, 8-hour training 14-hour driving window (or 15 hours days (24 hours in total for each trainer). on-duty for drivers of passenger- Federal and State Government Costs The 100 trainers will then conduct carrying CMVs), and thus could not be FMCSA will incur costs to update the approximately 50 training sessions for used if the adverse driving condition existing eRODS software. The eRODS 500 Federal and 10,500 State trainees in was encountered towards the end of that software is used by safety officials pairs (with 2 trainers per class). (Federal, State, and local safety period. In this final rule, FMCSA allows FMCSA then calculated training costs partners) to locate, open, and review a 2-hour extension of the 14-hour by multiplying the wage rate for each output files transferred from a driving window (or 15 hours on-duty for group by the total number of training compliant ELD. The eRODS software drivers of passenger-carrying CMVs). hours. Next, FMCSA estimated the This change aligns the regulations with consists of two components: A database travel costs associated with the the intent of the adverse driving containing the HOS requirements and trainings. FMCSA assumed that the 3 condition provision, which is to allow the software component that compares master trainers are located near the drivers flexibility when faced with the compliant ELD output files to the training sites and thus will not incur unexpected conditions. This change HOS requirements. The changes to the travel costs. The 100 trainers, however, will not increase the available driving 30-minute break requirement, sleeper are from disparate locations across the time. berth requirements, and the split-duty The adverse driving conditions period will necessitate updates to the country and will be required to travel to provision is intended to provide eRODS database that stores the HOS the training sites. Federal and State flexibility for drivers who encounter requirements and some minor trainees are also expected to travel such adverse driving conditions which programming changes to the compliance within their respective State to attend were not apparent at the time of algorithm aspects of the software. the trainings given at field locations. dispatch. However, it did not previously The Department’s Volpe National Next, FMCSA combined the costs for extend the driving window, limiting its Transportation Systems Center time spent in trainings and travel costs use. This final rule will increase developed the eRODS software and for each group to estimate total costs for flexibility by allowing drivers continues to maintain and update it training that are incurred because of the encountering adverse driving conditions when needed. Volpe estimates that the final rule. As shown in Table 5, these to extend their driving window by the final rule will result in one-time eRODS calculations resulted in a total cost of same 2 hours that currently apply to software update costs of $20,000. This $8.6 million associated with training.

TABLE 5—ESTIMATED TOTAL COSTS FOR TRAINING, 2020

Training group Total costs

Training Materials ...... $90,000 Master Trainers ...... 18,720 Trainers ...... 382,400 Federal Trainees ...... 435,000 State Trainees ...... 7,638,750

Total Costs ...... 8,564,870 Total 10-Year Cost Savings—7 percent Discount Rate ...... 8,004,551 Total 10-Year Cost Savings—3 percent Discount Rate ...... 8,315,408 Total Annualized Cost Savings—7 percent Discount Rate ...... 1,139,668 Total Annualized Cost Savings—3 percent Discount Rate ...... 974,819

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Summary of Quantified Costs eRODS software update cost of final rule at ¥$2,366.2 million (or approximately $20,000. The change to $2,366.2 million in cost savings) This final rule will not result in any the 30-minute break requirement will discounted at 3 percent, and ¥$1,917.5 new costs for regulated entities. Instead, result in a reduction in opportunity million (or $1,917.5 million in cost this rule will result in increased cost, or a cost savings, for motor savings) discounted at 7 percent. flexibility for drivers and a quantified carriers. FMCSA estimates the 10-year Expressed on an annualized basis, this reduction in costs for motor carriers. motor carrier costs attributable to the equates to ¥$277.4 million in costs (or Federal and State governments will changes to the 30-minute break $277.4 million in cost savings) at a 3 incur one-time training costs of $8.6 provision at ¥$2,814.3 million (or a percent discount rate, and ¥$273.0 million for training inspectors on the total 10-year motor carrier cost savings million in costs (or $273.0 million in new requirements. The Federal of $2,814.3). As shown in Table 6, cost savings) at a 7 percent discount Government also will incur a one-time FMCSA estimates the total costs of this rate. All values are in 2018 dollars.

TABLE 6—TOTAL 10-YEAR AND ANNUALIZED COSTS OF THE FINAL RULE [In millions of 2018$]

Federal Cost due to and state changes in Total costs— Total costs— Total costs— Year government 30-min break undiscounted (7 percent (3 percent cost provision discount rate) discount rate)

A B C = A + B

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.

Non-Quantified Costs document, as well as reallocating the that the additional features will need to There are a number of other potential time and resources that would have be updated because of the rule, or risk cost savings of this final rule that been spent on the exception being inaccurate. ELD manufacturers FMCSA considered which, due to reapplication. The Federal Government providing these features have staff that uncertainty around driver behavior, will experience a cost savings equal to routinely provides updates and patches the reduction in time and resources to their ELD software, and transmits could not be quantified on an industry necessary to review, comment on, and those updates directly to the devices on- level. make final determinations on the board vehicles. Many carriers have FMCSA has granted 5-year exceptions exceptions. Additional non-quantified subscriptions with companies and will from the requirement to return to the cost savings include increased receive the updated software as soon as driver’s normal work reporting location efficiency afforded to drivers through practicable. While updating ELD within 12 hours of coming on-duty the changes to the various HOS equipment is not a requirement or direct (examples include: Waste Management provisions, such as, efficiency gains due cost of the rule, it is an indirect cost Holdings, Inc.; American Concrete to the short-haul exception; the ability attributable to this rule. FMCSA Pumping Association; and National of drivers to make informed decisions received comments from ELD Asphalt Paving Association).65 During due to the changes to the adverse manufacturers on the time required to the period of the exception, all drivers driving conditions and sleeper berth make and distribute software updates, utilizing it must carry a copy of the provisions; and the reduction in and discusses those comments in this exception notice; after that period, opportunity cost to drivers from the preamble. FMCSA did not receive entities seeking to maintain the changes to the 30-minute break comments addressing the cost of exception must reapply. This final rule provision. software updates, and considers updates will result in cost savings to these (and The Agency did not include the cost to be part of normal business practices. potentially other) entities by alleviating for ELD manufacturers to update ELD Therefore, FMCSA is not estimating the the need to pursue the exception equipment or software. A compliant cost of updating the additional ELD process and eliminating compliance ELD and its software will not need to be features. with exception conditions such as updated because of this final rule. The Agency did not quantify impacts carrying a copy of the exception FMCSA is aware, however, that some resulting from any potential decreases ELD manufacturers have chosen to go in congestion that may result from the 65 Available at: https://www.regulations.gov/ beyond the minimum ELD requirements final rule. Allowing drivers to take docket?D=FMCSA-2017-0197. https:// www.regulations.gov/document?D=FMCSA-2018– and provide additional features, such as breaks at their convenience, such as 0181–0057, and https://www.regulations.gov/ alerts when a driver may be close to an during times of heavy traffic congestion, docket?D=FMCSA-2018-0175, respectively. HOS violation. FMCSA acknowledges could allow the driver to operate at a

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more consistent speed without the As discussed above and in the RIA, outcomes. The available studies on starting and stopping that occurs in the Agency has carefully considered the sleeper berth use highlight the fact that heavy traffic. American Transportation views of numerous commenters the split sleeper berth option is a viable Research Institute technical requesting exceptions or removal of the and safe alternative to a minimally memorandum demonstrated that 30-minute break requirement. As a compliant, consolidated break of 10 avoiding congestion could result in result of the feedback, and after consecutive hours. The current moving freight the same number of reviewing available research, FMCSA rulemaking retains a sleeper berth miles in fewer work hours. This could anticipates that an on-duty break from anchor period of sufficient length to reduce fuel and vehicle costs for the driving, will not adversely affect safety give drivers an opportunity for rest and motor carriers, congestion for the public relative to the previous requirements. when combined with the shorter rest by removing large vehicles from the Based on comments to the ANPRM, the period, to ensure drivers will continue road during peak travel times, and the Agency took another look at the Blanco, to have 10 hours of time during each incidence of crashes related to et al. (2011), study to determine the day when they are relieved of all congestion. While these impacts could applicability of the study findings to the responsibility for performing work. As result from any individual trip, FMCSA 30-minute break requirement. This final such, the Agency anticipates that the cannot estimate the magnitude or rule focuses on achieving a break from increased flexibility in this final rule likelihood of these potential impacts for driving as opposed to a break after a will not affect the safety outcomes many reasons. Most notably, these certain amount of time on-duty. For achieved by the current sleeper berth impacts hinge on the availability of these reasons, the Agency believes that provision. CMV parking. FMCSA is aware that these changes will not have an impact Alternative 1, which would maintain parking is not always available, on the safety benefits of the HOS rules an 8⁄2 split option but exclude the especially in urban areas or heavily and did not quantify changes in shorter rest period from the calculation travelled truck routes. regulatory benefits for this final rule. of the 14-hour driving window, would Additional non-quantified cost Alternative 1, which would eliminate be more restrictive than the preferred savings include increased flexibility and the 30-minute break requirement, seems alternative and allow fewer options for a reduction in back office administrative to be more flexible than the preferred drivers to split their 10 hours of off-duty costs resulting from the extension of the alternative. However, eliminating the time. Based on the research discussed duty day and the air-mile radius for requirement would allow drivers the above, a 7⁄3 split option will allow for an those operating under the short-haul opportunity to operate a vehicle for 11 adequate rest period and will not impact exception; the increased options for hours without stopping. In general, safety relative to an 8⁄2 split option. drivers to respond to adverse driving FMCSA does not anticipate that drivers Alternative 1 would be more restrictive, conditions during the course of their would alter their schedules to such an would reduce cost savings associated duty period; and increased flexibility extent, but would likely take breaks to with the changes, and would not afforded to drivers, such as increased eat, rest, etc. However rare of an provide any additional safety benefits options with regard to on-duty and off- occurrence 11 continuous hours of relative to the preferred alternative. duty time resulting from changes to the driving may be, FMCSA considers it to Therefore, FMCSA did not propose 30-minute break requirement, and the be detrimental to safety. As such, alternative 1. sleeper berth provisions. alternative 1 may be more flexible and Alternative 2, which would allow a 7⁄3 would result in an equivalent level of split option but include the shorter rest Summary of Benefits motor carrier cost savings, but would period in the calculation of the 14-hour The Agency does not anticipate that lead to a reduction in safety benefits driving window, is more restrictive than this final rule will result in any new relative to the preferred alternative. the preferred alternative. Under this regulatory benefits. Additionally, the Therefore, FMCSA is not finalizing alternative, a driver would be required Agency does not believe that the rule alternative 1. to stop driving 14 hours after coming will result in any reductions in safety on-duty (excluding the 7 hours spent in benefits or other regulatory benefits. Sleeper Berth the sleeper berth), regardless of the fact As discussed in the RIA and that another 3 off-duty hours were 30-Minute Break elsewhere in this preamble, there is an resting. Based on results in the Blanco The changes to the 30-minute break extensive body of research suggesting study (2011), FMCSA believes that provision are estimated to be safety- that split-sleep schedules may improve excluding the shorter rest period from neutral because both the current rule safety and productivity, compared to the calculation of the 14-hour driving and the final rule will prevent CMV consolidated daytime sleep. window would not reduce safety operators from driving for more than 8 This final rule will ensure that drivers relative to the preferred alternative. The hours without at least a 30-minute using the sleeper berth to obtain the Blanco study showed that the SCE rate change in duty status. The distinction is minimum off-duty time have at least increased modestly with increasing that the final rule focuses on actual one rest period of a sufficient length to work and driving hours. Blanco also driving time rather than on-duty time, have restorative benefits to counter found that breaks can be used to some of which may not be spent behind fatigue. This final rule provides drivers counteract the negative effects of time the wheel. The Agency discussed the with the flexibility to make decisions on task. The results from the break value of off-duty breaks as compared to regarding their rest that best fits their analyses indicated that significant safety on-duty breaks in previous rulemakings, individual needs, while continuing to benefits can be achieved when drivers but did not quantify the safety benefits prohibit potential overly-long periods of take breaks from driving. This was a key attributable to the off-duty break when wakefulness and duty hours that could finding in the Blanco study and clearly the break provision was added to the lead to fatigue-related crashes. shows that breaks can ameliorate the HOS rules in 2011 (76 FR 81134, Dec. As discussed extensively in this negative impacts associated with fatigue 27, 2011). Further, FMCSA has preamble, the Agency reviewed the and time on task. As such, alternative 2 determined that the value of off-duty comments received and studies would be more restrictive, reduce cost breaks relative to on-duty breaks should provided and has determined that the savings associated with the rule, and be reconsidered. change will not result in adverse safety would not provide any additional safety

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benefits relative to the preferred 7.6 percent in 2013 to 5.8 percent in not expected to increase, and the alternative. Therefore, FMCSA did not 2017. changes to the short-haul exception will propose alternative 2. FMCSA also examined the total not extend the workday beyond the number of crashes that involved current long-haul driving window, the Short-Haul Operations concrete mixer trucks for the 2 years Agency does not anticipate changes in The IIHS conducted a study in North before and after the congressionally exposure or crash risk. Carolina in 2017 and found that mandated change went into effect. From Additionally, the Agency emphasizes interstate truck drivers operating under December 4, 2013, through December 3, the changes to the short-haul exception the short-haul exception had a crash 2015, there were 2,723 concrete mixers in this final rule will not allow any risk 383 percent higher than those not involved in crashes, or 0.907 percent of additional drive time, or allow driving using the exception. They the total large trucks involved in crashes after the 14th hour from the beginning recommended that, due to this finding, (2,723 concrete mixers involved in of the duty day. Drivers also will still be the Agency should not propose an crashes/300,324 large trucks, including subject to the ‘‘weekly’’ limits of 60 and extension of the short-haul exception concrete mixers, involved in crashes). 70 hours, and the employer must from 12 to 14 hours. FMCSA reviewed From December 4, 2015, through maintain accurate time records showing the study and noted that while the December 2, 2017, there were 2,955 when the driver reports for work and is finding was statistically significant, it concrete mixers involved in crashes, or released from duty each day. FMCSA was based on a very small sample size, 0.919 percent of the total large trucks therefore anticipates that this final rule which prevented the author from involved in crashes (2,955 concrete will not affect the crash risk of drivers estimating a matched-pair odds ratio mixers involved in crashes/321,471 operating under the short-haul restricted to drivers operating under a large trucks, including concrete mixers, exception. short-haul exception, and was not involved in crashes). A Chi-square test Alternative 1, which would extend nationally representative. Further, the suggests that this very minor increase in the time required for drivers to return to authors noted that other related factors the concrete mixer share of the total is their work reporting location from 12 to unobserved in the study may have led not statistically significant at the p< 14 hours but continue to maintain a 100 to this result. For example, it is possible 0.05 level. Both analyses suggest that air-mile radius requirement, would that older or more poorly maintained the implementation of the Fixing reduce the population of drivers eligible trucks are used in local operations. America’s Surface Transportation Act for the short-haul exception, compared Regardless, because FMCSA’s number on December 4, 2015, did not increase to the preferred alternative. As one priority is safety, the Agency the share of concrete mixers involved in discussed above, FMCSA does not investigated the safety implications of crashes when extending the short-haul anticipate that changing the air-mile the rule using available data. exception requirement from 12 to 14 radius from 100 to 150 air-miles will Congress passed the Fixing America’s hours. impact safety. Alternative 1 would Surface Transportation (FAST) Act on Some commenters to the NPRM did therefore be more restrictive, reduce any December 4, 2015. Among other things, not agree with the Agency’s use of the cost savings associated with the rule, it requires that drivers of ready-mixed concrete mixer analysis discussed above and would not provide any additional concrete delivery trucks be exempted based on its lack of direct correlation to safety benefits relative to the preferred from the requirement to return to their the short-haul population. FMCSA did alternative. Thus, FMCSA did not normal work-reporting location after 12 not claim that the analysis is definitive, finalize alternative 1. hours of coming on-duty. Beginning on or that the population of concrete Adverse Driving Conditions December 5, 2015, operators of concrete mixers is representative of all short-haul mixer trucks met the requirements for operations. Instead, the analysis was The Agency defines ‘‘adverse driving the short-haul exception if they returned offered as the best available data with a conditions’’ in § 395.2 as ‘‘snow, sleet, to their normal work reporting location before and after comparison of changes fog, other adverse weather conditions, a within 14 hours after coming on-duty. like the changes proposed in the NPRM. highway covered with snow or ice, or MCMIS contains data on crashes based FMCSA did not receive comments with unusual road and traffic conditions, on vehicle type, allowing the Agency to additional data on the impact that the none of which were apparent based on isolate crashes involving concrete mixer proposal rule would have on crash rates. information known to the person trucks both before and after the FMCSA does not anticipate that dispatching the run at the time it was congressionally mandated changes to extending the air-mile radius will result begun.’’ The previous adverse driving the short-haul exception that mirror this in an increase in aggregate VMT. While condition rule gave drivers 2 additional change to extend the 12-hour limit for more drivers or more trips would now hours of driving time to help them avoid all short-haul operators. be eligible for the short-haul exception, rushing to either stay ahead of adverse The Agency first focused on the time and thus excluded from the requirement driving conditions, make up for lost of day when crashes occurred. to take a 30-minute break or prepare time due to poor conditions, or allow Assuming most concrete mixer trucks daily RODS, the total costs of freight drivers time to locate a safe place to stop are operated on a schedule with a transportation would likely not change and wait out the adverse driving workday that begins in the morning to such an extent that the quantity of conditions. The Agency anticipates that hours and ends in the evening hours, trucking services demanded would this final rule and the extension of the those crashes that occur in the later part increase. Aggregate CMV VMT is driving window by 2 hours will of the day would occur towards the end determined by many factors, including enhance this goal by giving drivers of the 12- or 14-hour workday for the market demand for transportation. greater flexibility to use their extended concrete mixer driver. FMCSA found FMCSA does not anticipate that the driving time without worrying about the that the percentage of concrete mixers in changes in this final rule would lower closing driving window. While the crashes at later hours of the day (5:00 costs or prices to such an extent that it Agency is not aware of any research that p.m. to 11:59 p.m.—when drivers are would stimulate demand in the freight is specific to the impact of adverse more likely to be close to their market, but acknowledges that freight driving conditions on crash risk, the maximum hours for the day) has been loads may shift from one carrier or flexibility provided in the final rule will declining in recent years, falling from driver to another. Because total VMT is allow drivers to make decisions based

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on current conditions without the reinstated original 34-hour restart haul carriers the same driving limit and penalizing them by ‘‘shortening’’ their provision, and thus the health benefits driving window that other carriers have driving window. Further, the Agency estimated in the 2011 RIA will not be utilized for many years (without a stresses that this change will not affected by this final rule. distance limit). The 11- and 14-hour increase maximum available driving As concerns this final rule, FMCSA HOS limits now applicable to both time beyond that allowed by the current anticipates that some drivers will short- and long-haul carriers are rule, but may increase driving hours by experience a decrease in stress, which consistent with the statutory obligation allowing some drivers to use more of could lead to increases in health to protect driver safety and health (49 their available driving time. benefits. As discussed in the RIA, U.S.C. 31136(a)(2), (4)), as shown by the The NPRM asked whether drivers drivers have repeatedly provided extensive discussion in the 2005 final would use the longer driving window to comments relating to stress resulting rule (70 FR 49978, 49982 et seq.). increase their VMT. Several commenters from the 14-hour limit. The sleeper Section 12.f of DOT Order 2100.6 provided responses depicting the range berth proposal could alter drivers’ dated December 27, 2019 provides of potential outcomes, but clear data schedules relative to the current additional requirements for detailing the impact those outcomes requirements, by allowing drivers the retrospective reviews, specifically each might have on VMT was not provided. flexibility to rest, without penalty, when economically significant rule or high- Ultimately, each adverse condition they are tired or in times of heavy impact rule, the responsible Office of presents a unique set of circumstances traffic. However, this final rule the Administrator or Office of the that drivers and motor carriers will react continues to allow for an adequate rest Secretary of Transportation component to—not plan for. By their very nature, period. This final rule retains the shall publish a regulatory impact report adverse driving conditions are current driving time and work time, but in the Federal Register every 5 years unpredictable, and thus motor carriers could allow for changes in the number after the effective date of the rule while would not be able to plan in advance for of hours driven or worked on any given the rule remains in effect. additional deliveries, trips, or VMT. day. The flexibilities in this final rule In accordance with the DOT order, FMCSA did not estimate an increase in are intended to allow drivers to shift FMCSA will assess the impact of these VMT resulting from the changes to this their drive and work time under the changes to the HOS requirements within provision. The Agency is unable to HOS rules to mitigate the impacts of 5 years of the effective date of the final quantitatively assess the impacts on uncertain factors (e.g., traffic, weather, rule. safety from this final rule due to a lack and detention times). Total hours driven B. E.O. 13771 (Reducing Regulation and of data regarding the use of the adverse or worked could increase or decrease on Controlling Regulatory Costs) driving provision. The Agency also a given day, but FMCSA does not lacks data on the relationship between anticipate that these time shifts will E.O. 13771, Reducing Regulation and crash risk and adverse driving negatively impact drivers’ health. Controlling Regulatory Costs, was conditions, and potential reductions in Instead, this final rule will empower issued on January 30, 2017 (82 FR 9339, crash risk that result from the avoidance drivers to make informed decisions Feb. 3, 2017). E.O. 13771 requires that, of these conditions. based on the current situation, and thus for every one new regulation issued by the rule could lead to a decrease in an Agency, at least two prior regulations Health Impacts stress and subsequent health benefits. be identified for elimination, and that The RIA for the 2011 HOS final rule FMCSA also notes that the effect of the cost of planned regulations be estimated health benefits in the form of specific regulatory changes on driver prudently managed and controlled decreased mortality risk based on health is difficult to evaluate, first, through a budgeting process. Final decreases in daily driving time, and because most health effects have implementation guidance addressing possible increases in sleep. The changes multiple causes and are discernible only the requirements of E.O. 13771 was were largely based on limiting the use over extended time periods, and, issued by the OMB on April 5, 2017.67 of the 34-hour restart provision. That second, because a cause-and-effect The OMB guidance defines what provision, however, was removed by relationship between a rule and a given constitutes an E.O. 13771 regulatory operation of law when the study health outcome may be difficult to action and an E.O. 13771 deregulatory required by the 2015 DOT establish. As pointed out in the 2005 action, provides procedures for how Appropriations Act failed to find HOS final rule, attempts to create a agencies should account for the costs statistically significant benefits of the dose-response curve for the effects of and cost savings of such actions, and 2011 limitations on the 34-hour exposure to diesel exhaust have not outlines various other details regarding restart.66 This final rule does not affect produced clear-cut results (70 FR 49978, implementation of E.O. 13771. 4983, August 25, 2005). Such an attempt This final rule will have total costs 66 Sec.133 of the 2015 DOT Appropriations Act would be even more difficult for the less than zero, and therefore qualifies as (Pub. L. 113–235, Dec. 16, 2014, 128 Stat. 2130, incremental HOS changes promulgated an E.O. 13771 deregulatory action. The 2711) suspended the 2011 restart provisions, today. present value of the cost savings of this temporarily reinstated the pre-2011 restart rule, and FMCSA believes that the changes final rule, measured on an infinite time required a study of the effectiveness of the new made by this final rule are safety- and rule. Sec. 133 of the 2016 DOT Appropriations Act horizon at a 7 percent discount rate, health-neutral. For example, the (Pub. L. 114–113, Dec. 18, 2015, 129 Stat. 2242, expressed in 2016 dollars, and 2850) made it clear that the 2011 restart provisions expansion of the short-haul radius from discounted to 2020 (the year the final would have no effect unless the study required by 100 to 150 air-miles and of the workday rule will go into effect and cost savings the 2015 DOT Appropriations Act showed that from 12 to 14 hours simply gives short- those provisions had statistically significant will first be realized), is $4,105 million. benefits compared to the pre-2011 restart rule. Sec. On an annualized basis, these cost 180 of the Further Continuing and Security Appropriations Act showed that the 2011 restart Assistance Appropriations Act, 2017 (Pub. L. 114– rule had statistically significant improvements savings are $287 million. 254, Dec. 10, 2016, 130 Stat. 1005, 1016) replaced related to safety and operator fatigue compared to Sec. 133 of the 2016 DOT Appropriations Act in its the pre-2011 restart rule. DOT concluded that the 67 Executive Office of the President. Office of entirety to correct an error and ensure that the pre- study failed to find these statistically significant Management and Budget. Memorandum M–17–21. 2011 restart rule would be reinstated by operation improvements, and the Office of Inspector General Guidance Implementing Executive Order 13771. of law unless the study required by the 2015 DOT confirmed that conclusion in a report to Congress. April 5, 2017.

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For the purpose of E.O. 13771 for drivers needing additional flexibility Industry groups within these sectors accounting, the April 5, 2017, OMB in their schedule due to unforeseeable have size standards for qualifying as guidance requires that agencies also driving conditions or for other reasons. small based on the number of calculate the costs and cost savings The regulatory relief for small entities employees (e.g., 500 employees), or on discounted to year 2016. In accordance afforded by this final rule was also the amount of annual revenue (e.g., with this requirement, the present value noted in a comment received on the $27.5 million in revenue). To determine of the cost savings of this rule, measured NPRM from the Petroleum Marketers the NAICS industries potentially on an infinite time horizon at a 7 Association of America. However, one affected by this rule, FMCSA cross- percent discount rate, expressed in 2016 commenter to the NPRM noted that the referenced occupational employment dollars, and discounted to 2016, is IRFA narrowly focused on the certain statistics from the BLS with NAICS $3,132 million. On an annualized basis, industry segments, and did not consider industry codes. these cost savings are $219 million. other industries besides Truck FMCSA examined data from the U.S. Transportation (NAICS Subsector 484) Census Bureau to determine the number C. Congressional Review Act that would be affected by the proposed of small entities within the identified Pursuant to the Congressional Review changes to the HOS provisions. In NAICS industry groups. The Census Act (5 U.S.C. 801, et seq.), the Office of response to this comment, FMCSA Bureau collects and publishes data on Information and Regulatory Affairs evaluated small entities potentially the number of firms, establishments, designated this rule as a ‘‘major rule,’’ impacted by the rule in an expanded set employment, annual payroll, and as defined by 5 U.S.C. 804(2).68 of industries conducted at the level of estimated receipts by enterprise 71 D. Regulatory Flexibility Act two-digit NAICS sectors. employment size. The most recent data This rule affects drivers, motor available are from the 2012 County The Regulatory Flexibility Act of 1980 carriers, and Federal and State Business Patterns and the 2012 (RFA) (5 U.S.C. 601, et seq.), as governments. Drivers are not considered Economic Census.72 The firms and amended by the Small Business small entities because they do not meet establishments are grouped by the Regulatory Enforcement Fairness Act of the definition of a small entity in employment size of the enterprise, all 1996 (SBREFA) (Pub. L. 104–121, 110 Section 601 of the RFA. Specifically, within 4-digit NAICS industry groups. Stat. 857), requires Federal agencies to drivers are considered neither a small The largest employment size group is consider the impact of their regulatory business under Section 601(3) of the 500+ employees per enterprise. The actions on small entities, analyze RFA, nor are they considered a small table also provides the employment and effective alternatives that minimize organization under Section 601(4) of the receipts at establishments within each small entity impacts, and make their RFA. Federal and State governments do enterprise employment size category. analyses available for public comment. not meet the definition of a small entity Because there are no data available on The term ‘‘small entities’’ means small because they are governmental the revenue per enterprise or the businesses and not-for-profit jurisdictions with populations greater number of employees per enterprise organizations that are independently than 50,000. (although these data are available at the owned and operated and are not The SBA defines the size standards establishment level), FMCSA identifies dominant in their fields, and used to classify entities as small. SBA the number of establishments that governmental jurisdictions with establishes separate standards for each would be considered small based on populations under 50,000.69 industry, as defined by the North Accordingly, DOT policy requires an SBA size standards. American Industry Classification For industries with an employee- analysis of the impact of all regulations System (NAICS). In the NPRM, FMCSA based size standard, the number of on small entities, and mandates that estimated that the motor carriers that small establishments was identified agencies strive to lessen any adverse would experience regulatory relief based on the employment groupings of effects on these entities. Section 605 of under the proposed rule would be in the enterprise. The enterprises the RFA allows an Agency to certify a industries within Subsector 484 (Truck employment size groups are as follows: rule, in lieu of preparing an analysis, if Transportation). These industries 0–4, 5–9, 10–19, 20–99, 100–499, and the rulemaking is not expected to have include General Freight Trucking (4841) 500+. When a size standard fell within a significant economic impact on a and Specialized Freight Trucking substantial number of small entities. a defined enterprise employment size (4842). Subsector 484 has an SBA size group, the entire group was considered FMCSA developed an Initial standard based on annual revenue of Regulatory Flexibility Analysis (IRFA) small. For example, if the size standard $27.5 million. was 250 employees, all establishments for the NPRM, and reviewed comments The SBA defines the size standards within the 100–499 employment size in response to the IRFA. A comment used to classify entities as small. SBA received on the NPRM by the SBA’s establishes separate standards for each 71 An enterprise (or ‘‘company’’) is a business Office of Advocacy noted the regulatory 70 industry, as defined by the NAICS. organization consisting of one or more domestic relief that this final rule would provide This rule could affect many different establishments that were specified under common industry sectors in addition to the ownership or control. The enterprise and the 68 A ‘‘major rule’’ means any rule that the Transportation and Warehousing sector establishment are the same for single-establishment Administrator of the Office of Information and firms. Each multi-establishment company forms one Regulatory Affairs at OMB finds has resulted in or (NAICS sectors 48 and 49); for example, enterprise—the enterprise employment and annual is likely to result in (a) an annual effect on the the Construction sector (NAICS sector payroll are summed from the associated economy of $100 million or more; (b) a major 23), the Manufacturing sector (NAICS establishments. An establishment is a single increase in costs or prices for consumers, individual sectors 31, 32, and 33), and the Retail physical location where business is conducted or industries, Federal agencies, State agencies, local where services or industrial operations are government agencies, or geographic regions; or (c) Trade sector (NAICS sectors 44 and 45). performed. significant adverse effects on competition, 72 U.S. Department of Commerce, U.S. Census employment, investment, productivity, innovation, 70 Executive Office of the President, Office of Bureau. Enterprise Statistics. Table 2: Selected or on the ability of United States-based enterprises Management and Budget (OMB). ‘‘North American Enterprise Statistics by Employment Size by Sector to compete with foreign-based enterprises in Industry Classification System.’’ 2017. Available at: in the U.S.: 2012. Release date June 15, 2016. domestic and export markets (5 U.S.C. 804(2)). https://www.census.gov/eos/www/naics/ Available at: http://www2.census.gov/econ/esp/ 69 Regulatory Flexibility Act, Public Law 96–354, 2017NAICS/2017_NAICS_Manual.pdf, last accessed 2012/esp2012_table2.xlsx last accessed January 17, 94 Stat. 1164 (codified at 5 U.S.C. 601, et seq.). January 15, 2020. 2020.

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group, as well as smaller employment employment size group was divided by groups, were considered to be small for size groups, were counted as small. This the estimated receipts for those purposes of the analysis. results in an overestimation in the establishments. This provided the Table 7 presents the NAICS sectors number of establishments that are estimated average revenue per determined by FMCSA to be affected by considered small, as some establishment within each enterprise this final rule along with information on establishments within the employment employment size group. If this value the number of firms in the industry, the size group would not be small. was below the revenue size standard, percent of firms determined to be small For industries with a revenue-based then all establishments within that entities based on the industry-specific size standard, the number of enterprise employment size group, and size standards, and the estimated establishments within each enterprise all smaller enterprise employment size number of small entities.

TABLE 7—PERCENT AND NUMBER OF SMALL FIRMS IN AFFECTED NAICS SECTORS

Number of Percent of Number of NAICS sector Meaning of NAICS sector firms small entities small entities

11 ...... Agriculture, Forestry, Fishing and Hunting ...... 12,486 100 12,454 21 ...... Mining, Quarrying, and Oil and Gas Extraction ...... 22,306 97 21,627 23 ...... Construction ...... 641,808 100 641,808 31 ...... Manufacturing ...... 33,952 97 32,999 32 ...... Manufacturing ...... 54,120 93 50,121 33 ...... Manufacturing ...... 87,153 98 85,300 42 ...... Wholesale Trade ...... 145,904 79 114,828 44 ...... Retail Trade ...... 333,358 98 327,856 45 ...... Retail Trade ...... 131,034 99 130,091 48 ...... Transportation and Warehousing ...... 53,098 99 52,697 49 ...... Transportation and Warehousing ...... 15,720 92 14,458 51 ...... Information ...... 39,642 96 38,229 53 ...... Real Estate and Rental and Leasing ...... 4,197 100 4,197 54 ...... Professional, Scientific, and Technical Services ...... 583,762 100 583,762 55 ...... Management of Companies and Enterprises ...... 26,819 100 26,819 56 ...... Administrative and Support and Waste Management and Remediation 326,379 100 326,379 Services. 61 ...... Educational Services ...... 34,654 100 34,654 62 ...... Health Care and Social Assistance ...... 402,594 100 402,576 71 ...... Arts, Entertainment, and Related Industries ...... 92,857 100 92,857 72 ...... Arts, Entertainment, and Related Industries ...... 446,097 100 446,097 81 ...... Public Administration ...... 366,008 100 366,008 1 Values in the table are rounded to the nearest whole percent for display purposes. The ‘‘Number of Small Entities’’ in Column (C) is the product of unrounded values.

FMCSA does not have exact estimates the proposed changes to the 30-minute shown below, a firm with one driver on the per-motor carrier impact of this break requirement. For illustrative could expect a cost savings of proposal. The RIA for this final rule purposes, FMCSA developed a per- approximately $127 in 2021, the first estimates cost savings associated with driver annual cost savings estimate. As full year of the analysis.

TABLE 8—WEIGHTED ANNUAL PER-DRIVER COST SAVINGS OF THE PROPOSED CHANGES TO THE 30-MINUTE BREAK REQUIREMENT

Annual hours Annual per Percent of Driver group Hours saved Shifts per saved per driver cost per shift (a) year (b) total hours (e) driver (c) savings (d)

Group 1 ...... 0.25 120 30 $99.98 19 Group 2 ...... 0.50 80 40 $133.30 81 Group 3 ...... 0.00 60 0 0 0

Weighted Annual Per-Driver Cost Savings ...... $127.04 (a) See Table 4 in the RIA (b) See Table 5 in the RIA (c) Hours Saved per Shift × Annual Hours Saved per Driver (d) Annual Hours Saved per Driver × $3.33 Motor Carrier Profit Margin (e) See Table 6 in the RIA, Total Hours Saved per Year, by Group ÷ Total Hours Saved per Year for All Groups

The RFA does not define a threshold the agencies can consider using.73 One measure that could be used to illustrate for determining whether a specific a significant impact is labor costs, regulation results in a significant 73 U.S. Small Business Administration, Office of specifically, if the cost of the regulation impact. However, the SBA, in guidance Advocacy. ‘‘A Guide for Government Agencies. exceeds 1 percent of the average annual How to Comply with the Regulatory Flexibility to government agencies, provides some Act.’’ 2017. Available at: https://www.sba.gov/sites/ revenues of small entities in the sector. objective measures of significance that default/files/advocacy/How-to-Comply-with-the- Given the average annual per-entity RFA-WEB.pdf, last accessed on January 16, 2020. impact of $127.04, a small entity would

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need to have average annual revenues of G. Paperwork Reduction Act substantially changed technology that less than $12,704 to experience an This rule will not call for a new collects, maintains, or disseminates impact greater than 1 percent of average collection of information under the information in an identifiable form. No annual revenue, which is an average Paperwork Reduction Act of 1995 (44 new or substantially changed annual revenue that is smaller than U.S.C. 3501–3520). This rule will not technology would collect, maintain, or would be required for a firm to support modify the existing approved collection disseminate information because of this one employee. Therefore, this rule does of information (OMB Control Number rule. not have a significant impact on the 2126–0001, HOS of Drivers Regulations, J. E.O. 13783 (Promoting Energy entities affected. approved July 29, 2019/, through July Independence and Economic Growth) Accordingly, I hereby certify that the 31, 2022). action does not have a significant E.O. 13783 directs executive economic impact on a substantial H. E.O. 13132 (Federalism) departments and agencies to review number of small entities. A rule has implications for federalism existing regulations that potentially burden the development or use of E. Assistance for Small Entities under section 1(a) of E.O. 13132 if it has ‘‘substantial direct effects on the States, domestically produced energy In accordance with section 213(a) of on the relationship between the national resources, and to appropriately suspend, the SBREFA, FMCSA wants to assist government and the States, or on the revise, or rescind those that unduly small entities in understanding this rule distribution of power and burden the development of domestic so that they can better evaluate its responsibilities among the various energy resources. In accordance with effects on themselves and participate in levels of government.’’ FMCSA E.O. 13783, DOT prepared and the rulemaking initiative. If the rule will determined that this proposal will not submitted a report to the Director of affect your small business, organization, have substantial direct costs on or for OMB that provides specific or governmental jurisdiction and you States, nor will it limit the policymaking recommendations that, to the extent have questions concerning its discretion of States. Nothing in this permitted by law, could alleviate or provisions or options for compliance, document preempts any State law or eliminate aspects of agency action that please consult the FMCSA point of regulation. Therefore, this rule does not burden domestic energy production. contact, Mr. Richard Clemente, listed in have sufficient federalism implications This rule has not been identified by the FOR FURTHER INFORMATION CONTACT to warrant the preparation of a DOT under E.O. 13783 as potentially section of this proposed rule. Federalism Impact Statement. alleviating unnecessary burdens on Small businesses may send comments domestic energy production. I. Privacy on the actions of Federal employees K. E.O. 13175 (Indian Tribal who enforce or otherwise determine Section 522 of title I of division H of Governments) compliance with Federal regulations to the Consolidated Appropriations Act, the Small Business Administration’s 2005, enacted December 8, 2004 (Pub. L. This rule does not have tribal Small Business and Agriculture 108–447, 118 Stat. 2809, 3268, note implications under E.O. 13175, Regulatory Enforcement Ombudsman following 5 U.S.C. 552a), requires the Consultation and Coordination with and the Regional Small Business Agency to conduct a Privacy Impact Indian Tribal Governments, because it Regulatory Fairness Boards. The Assessment of a regulation that will does not have a substantial direct effect Ombudsman evaluates these actions affect the privacy of individuals. The on one or more Indian Tribes, on the annually and rates each agency’s assessment considers impacts of the rule relationship between the Federal responsiveness to small business. If you on the privacy of information in an Government and Indian Tribes, or on wish to comment on actions by identifiable form and related matters. the distribution of power and employees of FMCSA, call 1–888–REG– The FMCSA Privacy Officer has responsibilities between the Federal FAIR (1–888–734–3247). DOT has a evaluated the risks and effects the Government and Indian Tribes. policy regarding the rights of small rulemaking might have on collecting, L. National Technology Transfer and entities to regulatory enforcement storing, and sharing personally Advancement Act (Technical fairness and an explicit policy against identifiable information and has Standards) retaliation for exercising these rights. evaluated protections and alternative information handling processes in The National Technology Transfer F. Unfunded Mandates Reform Act of developing the rule to mitigate potential and Advancement Act (note following 1995 privacy risks. FMCSA determined that 15 U.S.C. 272) directs agencies to use The Unfunded Mandates Reform Act this rule does not require the collection voluntary consensus standards in their of 1995 (2 U.S.C. 1531–1538) requires of individual personally identifiable regulatory activities unless the agency Federal agencies to assess the effects of information. provides Congress, through OMB, with their discretionary regulatory actions. In Additionally, the Agency submitted a an explanation of why using these particular, the Act addresses actions Privacy Threshold Assessment standards would be inconsistent with that may result in the expenditure by a analyzing the rulemaking and the applicable law or otherwise impractical. State, local, or tribal government, in the specific process for collection of Voluntary consensus standards (e.g., aggregate, or by the private sector, of personal information to the DOT, Office specifications of materials, performance, $165 million (which is the value of the Secretary’s Privacy Office. The design, or operation; test methods; equivalent of $100,000,000 in 1995, DOT Privacy Office has determined that sampling procedures; and related adjusted for inflation to 2018 levels) or this rulemaking does not create privacy management systems practices) are more in any 1 year. Because this rule risk. standards that are developed or adopted will not result in such an expenditure, The E-Government Act of 2002, by voluntary consensus standards a written statement is not required. Public Law 107–347, sec. 208, 116 Stat. bodies. This rule does not use technical However, the Agency does discuss the 2899, 2921 (Dec. 17, 2002), requires standards. Therefore, FMCSA did not costs and benefits of this rule elsewhere Federal agencies to conduct a Privacy consider the use of voluntary consensus in this preamble. Impact Assessment for new or standards.

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M. Environment (Clean Air Act, NEPA) VII. List of Acute and Critical Regulations consecutive hours off-duty separating FMCSA completed an environmental * * * * * each 14 hours on-duty; and assessment (EA) pursuant to the § 395.3(a)(3)(ii) Requiring or permitting a (iv) The motor carrier that employs property-carrying commercial motor vehicle the driver maintains and retains for a National Environmental Policy Act of driver to drive if more than 8 hours of driving 1969 (NEPA) (42 U.S.C. 4321 et seq.), 40 period of 6 months accurate and true time have passed without a consecutive time records showing: CFR parts 1500–1508, Council on interruption in driving status of at least 30 Environmental Quality Regulations for minutes, either off-duty, sleeper berth or on- (A) The time the driver reports for Implementing NEPA, as amended, duty not driving (critical). duty each day; FMCSA Order 5610.1, National (B) The total number of hours the Environmental Policy Act Implementing PART 395—HOURS OF SERVICE OF driver is on-duty each day; Procedures and Policy for Considering DRIVERS (C) The time the driver is released Environmental Impacts, March 1, 2004, from duty each day; and ■ 3. The authority citation for part 395 and DOT Order 5610.1C, Procedures for (D) The total time for the preceding 7 continues to read as follows: Considering Environmental Impacts, as days in accordance with § 395.8(j)(2) for amended on July 13, 1982 and July 30, Authority: 49 U.S.C. 504, 31133, 31136, drivers used for the first time or 1985. The EA is in the docket for this 31137, 31502; sec. 113, Public Law 103–311, intermittently. rulemaking. As discussed in the EA, 108 Stat. 1673, 1676; sec. 229, Pub. L. 106– * * * * * 159 (as added and transferred by sec. 4115 FMCSA also analyzed this rule under and amended by secs. 4130–4132, Pub. L. (g) * * * the Clean Air Act, as amended, section 109–59, 119 Stat. 1144, 1726, 1743, 1744); (1) Property-carrying commercial 176(c), (42 U.S.C. 7401 et seq.) and sec. 4133, Public Law 109–59, 119 Stat. 1144, motor vehicle—(i) General. A driver implementing regulations promulgated 1744; sec. 108, Public Law 110–432, 122 Stat. who operates a property-carrying by the Environmental Protection 4860–4866; sec. 32934, Public Law 112–141, commercial motor vehicle equipped Agency. FMCSA concludes that the 126 Stat. 405, 830; sec. 5206(b), Public Law with a sleeper berth, as defined in issuance of the rule would not 114–94, 129 Stat. 1312, 1537; and 49 CFR § 395.2, and uses the sleeper berth to 1.87. significantly affect the quality of the obtain the off-duty time required by human environment. Therefore, an ■ 4. Amend § 395.1 by revising § 395.3(a)(1) must accumulate: environmental impact statement process paragraphs (b)(1), (e)(1), (g)(1), and (h) to (A) At least 10 consecutive hours off- is unnecessary. read as follows: duty; List of Subjects § 395.1 Scope of rules in this part. (B) At least 10 consecutive hours of sleeper berth time; * * * * * 49 CFR Part 385 (C) A combination of consecutive (b) * * * Administrative practice and (1) Adverse driving conditions. Except sleeper berth and off-duty time procedures, Highway safety, as provided in paragraph (h)(3) of this amounting to at least 10 hours; Incorporation by reference, Mexico, section, a driver who encounters (D) A combination of sleeper berth Motor carriers, Motor vehicle safety, adverse driving conditions, as defined time of at least 7 consecutive hours and Reporting and recordkeeping in § 395.2, and cannot, because of those up to 3 hours riding in the passenger requirements. conditions, safely complete the run seat of the vehicle while the vehicle is moving on the highway, either 49 CFR Part 395 within the maximum driving time or duty time during which driving is immediately before or after the sleeper Highway safety, Motor carriers, permitted under § 395.3(a) or § 395.5(a) berth time, amounting to at least 10 Reporting and recordkeeping may drive and be permitted or required consecutive hours; or requirements. to drive a commercial motor vehicle for (E) The equivalent of at least 10 Accordingly, FMCSA amends 49 CFR not more than two additional hours consecutive hours off-duty calculated parts 385 and 395. beyond the maximum allowable hours under paragraphs (g)(1)(ii) and (iii) of this section. PART 385—SAFETY FITNESS permitted under § 395.3(a) or § 395.5(a) (ii) Sleeper berth. A driver may PROCEDURES to complete that run or to reach a place offering safety for the occupants of the accumulate the equivalent of at least 10 ■ 1. The authority citation for part 385 commercial motor vehicle and security consecutive hours off-duty by taking not continues to read as follows: for the commercial motor vehicle and its more than two periods of either sleeper cargo. berth time or a combination of off-duty Authority: 49 U.S.C. 113, 504, 521(b), time and sleeper berth time if: 5105(d), 5109, 5113, 13901–13905, 13908, * * * * * 31135, 31136, 31144, 31148, 31151 and (e) * * * (A) Neither rest period is shorter than 31502; Sec. 350, Pub. L. 107–87, 115 Stat. (1) 150 air-mile radius driver. A driver 2 consecutive hours; 833, 864; and 49 CFR 1.87. is exempt from the requirements of (B) One rest period is at least 7 ■ 2. Amend appendix B to part 385, §§ 395.8 and 395.11 if: consecutive hours in the sleeper berth; section VII as follows: (i) The driver operates within a 150 (C) The total of the two periods is at ■ a. Redesignate existing references to air-mile radius (172.6 statute miles) of least 10 hours; and §§ 395.1(h)(1)(i), 395.1(h)(1)(ii), the normal work reporting location; (D) Driving time in the period 395.1(h)(1)(iii), and 395.1(h)(1)(iv) as (ii) The driver, except a driver- immediately before and after each rest §§ 395.1(h)(1)(i)(A), 395.1(h)(1)(i)(B), salesperson, returns to the work period, when added together: 395.1(h)(1)(i)(C), and 395.1(h)(1)(i)(D), reporting location and is released from (1) Does not exceed 11 hours under respectively; and work within 14 consecutive hours; § 395.3(a)(3); and ■ b. Revise the text for § 395.3(a)(3)(ii). (iii)(A) A property-carrying (2) Does not violate the 14-hour duty- The revision reads as follows: commercial motor vehicle driver has at period limit under § 395.3(a)(2). least 10 consecutive hours off-duty (iii) Calculation—(A) In general. The Appendix B to Part 385—Explanation separating each 14 hours on-duty; driving time limit and the 14-hour duty- of Safety Rating Process (B) A passenger-carrying commercial period limit must be re-calculated from * * * * * motor vehicle driver has at least 8 the end of the first of the two periods

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used to comply with paragraph (B) One rest period is at least 7 definition of ‘‘On-duty time’’ to read as (g)(1)(i)(E) of this section. consecutive hours in the sleeper berth; follows: (B) 14-hour period. The 14-hour (C) The total of the two periods is at driving window for purposes of least 10 hours; and § 395.2 Definitions. § 395.3(a)(2) does not include qualifying (D) Driving time in the period * * * * * rest periods under paragraph (g)(1)(ii) of immediately before and after each rest Adverse driving conditions means this section. period, when added together: snow, ice, sleet, fog, or other adverse * * * * * (1) Does not exceed 15 hours; and weather conditions or unusual road or (h) State of Alaska—(1) Property- (2) Does not violate the 20-hour duty traffic conditions that were not known, period under paragraph (h)(1)(i)(B) of carrying commercial motor vehicle—(i) or could not reasonably be known, to a this section. In general. The provisions of § 395.3(a) driver immediately prior to beginning (iv) Calculation—(A) In general. The and (b) do not apply to any driver who the duty day or immediately before driving time limit and the 20-hour duty- is driving a commercial motor vehicle in beginning driving after a qualifying rest the State of Alaska. A driver who is period limit must be re-calculated from the end of the first of the two periods break or sleeper berth period, or to a driving a property-carrying commercial motor carrier immediately prior to motor vehicle in the State of Alaska used to comply with paragraph dispatching the driver. must not drive or be required or (h)(1)(ii)(E) of this section. permitted to drive: (B) 20-hour period. The 20-hour duty * * * * * (A) More than 15 hours following 10 period under paragraph (h)(1)(i)(B) does On-duty time *** consecutive hours off-duty; not include off-duty or sleeper berth (4) * * * (B) After being on-duty for 20 hours time. or more following 10 consecutive hours (2) Passenger-carrying commercial (iii) Up to 3 hours riding in the off-duty; motor vehicle. The provisions of § 395.5 passenger seat of a property-carrying (C) After having been on-duty for 70 do not apply to any driver who is vehicle moving on the highway hours in any period of 7 consecutive driving a passenger-carrying commercial immediately before or after a period of days, if the motor carrier for which the motor vehicle in the State of Alaska. A at least 7 consecutive hours in the driver drives does not operate every day driver who is driving a passenger- sleeper berth; in the week; or carrying commercial motor vehicle in * * * * * (D) After having been on-duty for 80 the State of Alaska must not drive or be hours in any period of 8 consecutive required or permitted to drive— ■ 6. Amend § 395.3 by revising days, if the motor carrier for which the (i) More than 15 hours following 8 paragraphs (a)(2) and (3) to read as driver drives operates every day in the consecutive hours off-duty; follows: week. (ii) After being on-duty for 20 hours (ii) Off-duty periods. Before driving, a § 395.3 Maximum driving time for or more following 8 consecutive hours property-carrying vehicles. driver who operates a property-carrying off-duty; commercial motor vehicle equipped (iii) After having been on-duty for 70 (a) * * * with a sleeper berth, as defined in hours in any period of 7 consecutive (2) 14-hour period. A driver may not § 395.2, and uses the sleeper berth to days, if the motor carrier for which the drive after a period of 14 consecutive obtain the required off-duty time in the driver drives does not operate every day hours after coming on-duty following 10 State of Alaska, must accumulate: in the week; or consecutive hours off-duty. (A) At least 10 consecutive hours off- (iv) After having been on-duty for 80 duty; hours in any period of 8 consecutive (3) Driving time and interruptions of (B) At least 10 consecutive hours of days, if the motor carrier for which the driving periods—(i) Driving time. A sleeper berth time; driver drives operates every day in the driver may drive a total of 11 hours (C) A combination of consecutive week. during the period specified in paragraph sleeper berth and off-duty time (3) Adverse driving conditions. (i) A (a)(2) of this section. amounting to at least 10 hours; driver who is driving a commercial (ii) Interruption of driving time. (D) A combination of consecutive motor vehicle in the State of Alaska and Except for drivers who qualify for either sleeper berth time and up to 3 hours who encounters adverse driving of the short-haul exceptions in riding in the passenger seat of the conditions (as defined in § 395.2) may § 395.1(e)(1) or (2), driving is not vehicle while the vehicle is moving on drive and be permitted or required to permitted if more than 8 hours of a highway, either immediately before or drive a commercial motor vehicle for driving time have passed without at after a period of at least 7, but less than the period of time needed to complete least a consecutive 30-minute 10, consecutive hours in the sleeper the run. interruption in driving status. A berth; or (ii) After a property-carrying consecutive 30-minute interruption of (E) The equivalent of at least 10 commercial motor vehicle driver driving status may be satisfied either by consecutive hours off-duty calculated completes the run, that driver must be under paragraph (h)(1)(iii) of this off-duty, sleeper berth or on-duty not off-duty for at least 10 consecutive section. driving time or by a combination of off- hours before he/she drives again; and (iii) Sleeper berth. A driver who uses duty, sleeper berth and on-duty not (iii) After a passenger-carrying a sleeper berth to comply with the hours driving time. commercial motor vehicle driver of service regulations may accumulate * * * * * completes the run, that driver must be the equivalent of at least 10 consecutive off-duty for at least 8 consecutive hours Issued under authority delegated in 49 CFR hours off-duty by taking not more than before he/she drives again. 1.87. two periods of either sleeper berth time James A. Mullen, or a combination of off-duty time and * * * * * sleeper berth time if: ■ 5. Amend § 395.2 by revising the Deputy Administrator. (A) Neither rest period is shorter than definition of ‘‘Adverse driving [FR Doc. 2020–11469 Filed 5–26–20; 8:45 am] 2 consecutive hours; conditions’’ and paragraph (4)(iii) in the BILLING CODE 4910–EX–P

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