FMCSA issues final driver HOS rule

HOS rules change

Truck drivers gained several new benefits from changes to hours-of-service (HOS) regulations. One significant change is the split-sleeper berth exception. Previously, drivers could utilize a split-sleeper berth exception in an 8/2 split. The new option adds a 7/3 split.

It’s unclear how many drivers utilized the provision before, and it’s even more uncertain how many will use the new option. Here are the exact rules and conditions as published from the Federal Motor Carrier Safety Administration.

AGENCY:

Federal Motor Carrier Safety Administration (FMCSA), DOT.

ACTION:

Final rule.

SUMMARY:

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

DATES:

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

FOR FURTHER INFORMATION CONTACT:

Mr. Richard Clemente, Federal Motor Carrier Safety Administration, 1200 New Jersey Avenue SE, Washington, DC 20590-0001, (202) 366-4325, [email protected]. If you have questions about viewing material in the docket, contact Docket Operations, (202) 366-9826.

SUPPLEMENTARY INFORMATION:

This final rule is organized as follows:

I. Availability of Rulemaking Documents

II. Executive Summary

A. Purpose and Summary of the Regulatory Action

B. Summary of Major Provisions of the Final Rule

C. Costs and Benefits

III. Abbreviations and Acronyms

IV. Legal Basis for the Rulemaking

V. Background

A. OOIDA Petition for Rulemaking

B. TruckerNation Petition for Rulemaking

C. Additional Petitions for Rulemaking

D. 2018 ANPRM

E. ANPRM Public Listening Sessions

F. 2019 NPRM

VI. Stakeholder Engagement Following Publication of the NPRM

A. Summary of the Motor Carrier Safety Advisory Committee Meeting

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

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

VII. Discussion of the Rule

A. Short-Haul Operations

B. Adverse Driving Conditions

C. 30-Minute Break

D. Sleeper Berth

E. Split-Duty Provision

F. TruckerNation Petition

G. Petitions for Rulemaking Submitted After the NPRM

H. Compliance Date for the Rulemaking

VIII. International Impacts

IX. Section-by-Section Analysis

A. Section 395.1 Scope of Rules in This Part

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

X. Regulatory Analyses

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

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

C. Congressional Review Act

D. Regulatory Flexibility Act

E. Assistance for Small Entities

F. Unfunded Mandates Reform Act of 1995

G. Paperwork Reduction Act

H. E.O. 13132 (Federalism)

I. Privacy

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

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

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

N. Environment (Clean Air Act, NEPA)

I. Availability of Rulemaking Documents

For access to docket FMCSA-2018-0248 to read background documents and comments received, go to http://www.regulations.gov at any time, or to Docket Operations at U.S. Department of Transportation, Room W12-140, 1200 New Jersey Avenue SE, Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. To be sure someone is there to help you, please call (202) 366-9317 or (202) 366-9826 before visiting the Docket Operations

II. Executive Summary

A. Purpose and Summary of the Regulatory Action

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

B. Summary of Major Provisions of the Final Rule

This final rule will improve efficiency without compromising safety by providing flexibility for drivers in four areas without changing the maximum allowable driving time. The rule extends the maximum duty period allowed under the short-haul exception in 49 CFR 395.1(e)(1) from 12 hours to 14 hours. It also extends the maximum radius in which the short-haul exception applies from 100 to 150 air-miles. FMCSA modifies the definition of adverse driving conditions so that the adverse driving conditions exception may be applied based on the driver’s (in addition to the dispatcher’s) knowledge of the conditions after being dispatched, and extends the driving window during which the current exception for extended driving time may be used by up to 2 hours for truck and bus operations under §§ 395.3(a)(2) and 395.5(a)(2), respectively. The Agency makes the 30-minute break requirement for drivers of property-carrying CMVs in § 395.3(a)(3)(ii) applicable only when a driver has driven (instead of having been on-duty) for a period of 8 hours without at least a 30-minute non-driving interruption. The break may be satisfied by any non-driving period of 30 minutes, i.e., on-duty, off-duty, or sleeper berth time. FMCSA also modifies the sleeper berth requirements to (1) allow drivers to take their required 10 hours off-duty in two periods, provided one off-duty period (whether in or out of the sleeper berth) is at least 2 hours long and the other involves at least 7 consecutive hours spent in the sleeper berth, and (2) add that neither period counts against the maximum 14-hour driving window in § 395.3(a)(2).

The Agency excludes from the final rule its proposal to allow a single off-duty period of up to 3 hours to be Start Printed Page 33397excluded from the 14-hour driving window, for reasons explained later in the document.

C. Costs and Benefits

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

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

None of the provisions in this final rule will increase the maximum allowable driving time, but may result in changes to the number of hours driven, or hours worked during a given work shift.[1The flexibilities in this final rule are intended to allow drivers to shift their drive and work time to mitigate the impacts of certain variables (e.g., weather, traffic, detention times, etc.) and to take breaks without penalty when they need rest. FMCSA does not anticipate that any of these time shifts will negatively impact drivers’ health.

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

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

YearFederal and state government costCost due to changes in 30-min break provisionTotal costs—undiscountedTotal costs— (7 percent discount rate)Total costs— (3 percent discount rate)
ABC = A + B
2020$8.6($98.3)($89.7)($83.8)($87.1)
20210.0(296.1)(296.1)(258.6)(279.1)
20220.0(297.5)(297.5)(242.9)(272.3)
20230.0(298.9)(298.9)(228.0)(265.6)
20240.0(300.3)(300.3)(214.1)(259.1)
20250.0(301.8)(301.8)(201.1)(252.7)
20260.0(303.2)(303.2)(188.8)(246.5)
20270.0(304.6)(304.6)(177.3)(240.5)
20280.0(306.1)(306.1)(166.5)(234.6)
20290.0(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.

Start Printed Page 33398 Expand Table

HOS provisionExisting requirementRevised requirementImpacts
Short-HaulDrivers using the short-haul (100 air-mile radius) exception may not be on-duty more than 12 hoursExtends the maximum duty period allowed under the short-haul exception from 12 hours to 14 hoursIncreases the number of drivers able to take advantage of the short-haul (150 air-mile) exception.
Drivers using the short-haul (150 air-mile radius) exception applicable to drivers not requiring a CDL may not drive beyond the 14th or 16th hour on-duty, depending upon the number of days on dutyExtends the maximum radius of the short-haul exception from 100 to 150 air-milesPotentially shifts work and drive time from long-haul to short-haul exception, or from driver to driver. Minimum or no change to hours driven or aggregate VMT.
Adverse Driving ConditionsA driver may drive and be permitted or required to drive a CMV for not more than 2 additional hours beyond the maximum time allowed. However, this does not currently extend the maximum “driving windows.”Allows a driver to extend the maximum “driving window” by up to 2 hours during adverse driving conditions. This change applies both to drivers of property-carrying CMVs (14-hour “driving window”) and passenger-carrying CMVs (15-hour “driving window”)Increases the use of the adverse driving condition provision. Allows driving later in the workday, potentially shifting forward the hours driven and VMT travelled. Allows drivers time to park and wait out the adverse driving condition or to drive slowly through it. This has the potential to decrease crash risk relative to current requirements, assuming drivers now drive through adverse driving conditions. No increase in freight volume or aggregate VMT.
30-minute breakIf more than 8 consecutive hours have passed since the last off-duty (or sleeper berth) period of at least half an hour, a driver must take an off-duty break of at least 30 minutes before drivingRequires a 30-minute break only when a driver has driven for a period of 8 hours without at least a 30-minute interruption. If required, the break may be satisfied by any non-driving period of 30 minutes, i.e. on-duty, off-duty, or sleeper berth timeIncreases the on-duty/non-driving time by up-to 30 minutes, or allow drivers to reach their destination earlier. No anticipated fatigue effect because drivers continue to be constrained by the 11-hour driving limit and would continue to receive on-duty/non-driving breaks from the driving task. Minimal or no change to hours driven or VMT, as the current off-duty break only impacts these factors if the schedule required driving late within the 14-hour driving window.
Split-Sleeper berthA driver can use the sleeper berth to get the “equivalent of at least 10 consecutive hours off-duty.” To do this, the driver must spend at least 8 consecutive hours (but less than 10 consecutive hours) in the sleeper berth. This rest period does not count as part of the 14-hour limit. A second, separate rest period must be at least 2 (but less than 10) consecutive hours long. This period may be spent in the sleeper berth, off-duty, or sleeper berth and off-duty combined. It does count as part of the maximum 14-hour driving windowModifies the sleeper berth requirements to allow drivers to take their required 10 hours off-duty in two periods, provided one off-duty period (whether in or out of the sleeper berth) is at least 2 hours long and the other involves at least 7 consecutive hours spent in the sleeper berth. Neither period counts against the maximum 14-hour driving windowAllow one hour to be shifted from the longer rest period to the shorter rest period. Potentially increase the use of sleeper berths because drivers using a berth have additional hours to complete 11 hours of driving (by virtue of excluding the shorter rest period from the calculation of the 14-hour driving window). No anticipated negative effect on fatigue because aggregate drive limits and off-duty time remains unchanged. Hours driven or VMT may change for an individual driver on a given work shift (by increased use of the sleeper berth). Total hours driven or aggregate VMT would remain the same.

III. Abbreviations and Acronyms

1935 Act The Motor Carrier Act of 1935

1984 Act The Motor Carrier Safety Act of 1984

AASM The American Academy of Sleep Medicine

ABA American Bus Association

ACPA American Concrete Pumping Association

Advocates Advocates for Highway and Auto Safety

ANPRM Advance notice of proposed rulemaking

ATA American Trucking Associations, Inc.

BLS Bureau of Labor Statistics

CAA Clean Air Act

CFR Code of Federal Regulations

CMV Commercial motor vehicle

CRA Congressional Review Act

CVSA Commercial Vehicle Safety Alliance

DOT Department of Transportation

ELD Electronic logging device

E.O. Executive Order

eRODS Electronic record of duty status

FAA Federal Aviation Administration

FMCSA Federal Motor Carrier Safety Administration

FMCSRs Federal Motor Carrier Safety Regulations

FR Federal Register

FRA Federal Railroad Administration

HOS Hours of service

IIHS Insurance Institute for Highway Safety

IBT International Brotherhood of Teamsters

IRFA Initial Regulatory Flexibility Analysis

LTL less-than-truckload

MCSAC Motor Carrier Safety Advisory Committee

MCMIS Motor Carrier Management Information SystemStart Printed Page 33399

NAPA The National Asphalt Pavement Association

National Academies National Academies of Sciences, Engineering, and Medicine

ND Naturalistic Driving

NEPA National Environmental Policy Act

NPPC National Pork Producers Council

NPRM Notice of proposed rulemaking

NSC The National Safety Council

NTSB National Transportation Safety Board

OMB Office of Management and Budget

OOIDA Owner-Operator Independent Drivers Association

RODS Record of duty status

RFA Regulatory Flexibility Act

SBA The Small Business Administration

SCE Safety critical event

§ Section

Secretary Secretary of Transportation

SBREFA Small Business Regulatory Enforcement Fairness Act of 1996

TIA Transportation Intermediaries Association

The Coalition National Coalition on Truck Parking

TL truckload

TRB Transportation Research Board

TruckerNation TruckerNation.org

TSC Truck Safety Coalition

UDA United Drivers Association

USDOT The U.S. Department of Transportation

U.S.C. United States Code

USTA United States Transportation Alliance

VMT vehicle miles traveled

VTTI Virginia Tech Transportation Institute

IV. Legal Basis for the Rulemaking

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

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

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

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

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

V. Background

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

A. OOIDA Petition for Rulemaking

On February 13, 2018, the Owner-Operator Independent Drivers Association (OOIDA) petitioned FMCSA to amend the HOS rules to allow drivers to take an off-duty rest break for up to 3 consecutive hours once per 14-hour driving window. OOIDA requested that the rest break stop the 14-hour clock and extend the latest time a driver could drive after coming on-duty.[2However, drivers would still be limited to 11 hours of driving time and required to have at least 10 consecutive hours off-duty before the start of the next work shift.

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

B. TruckerNation Petition for Rulemaking

On May 10, 2018, TruckerNation petitioned the Agency to revise the prohibition against driving after the 14th hour following the beginning of the work shift.[3As an alternative, the organization requested that the Agency prohibit driving after the driver has accumulated 14-hours of on-duty time.

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

C. Additional Petitions for Rulemaking

Two additional petitions for rulemaking were received: One from the United States Transportation Alliance (USTA) and one from the United Drivers Association (UDA).[4The petitions were not discussed in the ANPRM due to the timing of receipt; however, they were reviewed and considered in the development of the NPRM.

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

The UDA proposal maintained the 14/10 HOS rule; however, the 10 hours off-duty could be split into two 5-hour sleeper berth periods. The weekly on-Start Printed Page 33400duty time, after which driving would be prohibited, would be 80 hours in an 8-day period, with a 24-hour restart, similar to that proposed by USTA. The petition is included in the docket referenced at the beginning of this notice.

D. 2018 ANPRM

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

E. ANPRM Public Listening Sessions

FMCSA held a series of public listening sessions following the release of the ANPRM. These were held in Dallas, Texas, on August 24, 2018; Reno, Nevada, on September 24, 2018; Joplin, Missouri, on September 28, 2018; Orlando, Florida, on October 2, 2018; and Washington, DC, on October 10, 2018.[5Transcripts of those listening sessions are available in the public docket for the rulemaking, and are available to stream at https://www.fmcsa.dot.gov/​mission/​policy/​public-listening-sessions-hours-service.

F. 2019 NPRM

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

The Agency held two public listening sessions with the first being conducted at the Great American Truck Show on August 23, 2019, in Dallas, Texas. The second listening session was held at the United States Department of Transportation (DOT) in Washington, DC on September 17, 2019.[6Transcripts of those listening sessions are available in the public docket for the rulemaking.

VI. Stakeholder Engagement Following Publication of the NPRM

A. Summary of the Motor Carrier Safety Advisory Committee Meeting

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

In its report issued on October 15, 2019, https://www.fmcsa.dot.gov/​advisory-committees/​mcsac/​task-19-1-hos-report, the MCSAC stated that it would need more information to understand the potential impacts of the proposed changes. Additionally, the MCSAC expressed concern that the rulemaking may not provide quantitative improvements to safety, although the NPRM’s preamble indicated the rulemaking would increase flexibility without reducing safety. The MCSAC discussed the history of certain hours-of-service (HOS) provisions to understand the Agency’s rationale for the current requirements and the reasons for proposing changes, highlighting the need to consider data and information presented by commenters to the rulemaking docket before making any final decisions about changes to the HOS rules. The MCSAC considered potential enforcement challenges associated with the proposed changes, including discussions that the use of the increased flexibility should be at the driver’s discretion. The MCSAC also stated that drivers may be pressured by shippers/receivers to use the flexibility to go into an off-duty status rather than addressing detention time issues. Finally, there was concern that the Agency should not provide additional HOS flexibility to high-risk carriers with demonstrated safety performance problems and difficulty achieving compliance with the current HOS rules.

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

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

FMCSA held two public listening sessions during the comment period for the NPRM as part of the Agency’s efforts to engage the public in a conversational setting to get a sense of their initial reactions rather than waiting until the end of the public comment period and relying solely on submissions to the rulemaking docket. During the listening sessions, a panel of Agency officials took in-person public comments and solicited online comments. The panel also answered questions and clarified parts of the NPRM when requested. Both sessions are available online, and transcripts have been placed in the docket.[7Because the same substantive comments were also submitted in writing to the docket, FMCSA responds to these comments in the responses to written comments below.

In keeping with the intent of the public meetings, the Agency did not attempt to influence the participants’ beliefs or opinions. The Agency used the opportunity to hear the initial reactions of interested parties to the HOS rule in anticipation of the formal written comments that would be submitted to the rulemaking docket. Throughout the public listening session participants were encouraged to submit written comments to the rulemaking docket and to include any information (e.g., research reports or studies, etc.) and data they would like the Agency to consider.Start Printed Page 33401

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

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

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

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

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

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

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

1. AGENCY APPROACH TO REVIEWING RESEARCH CITED IN THE WRITTEN COMMENTS

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

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

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

Procedural Matters. A few commenters addressed procedural matters regarding the proposed rule. Three requests for an extension of the public comment period were received. FMCSA extended the public comment period from October 7 to October 21, 2019.[8]

2. GENERAL COMMENTS ON THE RULEMAKING

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

  • Increase flexibility;
  • Improve highway safety;
  • Provide drivers with greater control when and where to take rest breaks;
  • Increase efficiency and productivity; and,
  • Reduce driver stress and fatigue.

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

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

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

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

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

FMCSA Response: FMCSA agrees that the relief provided through this rulemaking will benefit some of the industries or distinct operations (e.g., propane delivery) currently seeking relief through exception or other means.

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

Three exemption applications concerning an extension of the short-haul duty day from 12 to 14 hours have already been granted to the following: (1) Waste Management, Inc.; (2) the American Concrete Pumping Start Printed Page 33402Association (ACPA); and (3) the National Asphalt Pavement Association (NAPA). In addition, NAPA requested and received an exception from the 30-minute rest break provision, allowing its members to use 30 minutes of “waiting time” or “attendance time” to satisfy the break requirement.

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

This final rule does not include industry-specific relief (i.e., regulatory exceptions). However, FMCSA notes certain industries may find their concerns about HOS addressed by this rule. As noted above, the requirements concerning applications for exemptions or requests for waivers are described in 49 CFR part 381, and interested parties that continue to believe that additional flexibility is needed should review part 381 to determine whether an exemption application may be warranted. The Agency notes that such requests should consider the statutory requirement that the exemption must be likely to achieve a level of safety equivalent to or greater than the level of safety provided absent the exemption.

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

  • Enables companies to abuse drivers;
  • Fails to promote safety;
  • Does not provide enough flexibility;
  • Adds confusion when looking at the provisions overall;
  • Decreases efficiency and productivity; and,
  • Does not address the lack of parking and problems associated with “pay to park” schemes.

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

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

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

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

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

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

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

Regarding the extension of the driving window to 16 hours during “adverse driving conditions,” drivers will no longer need to stay on the road during such conditions to avoid the impending closure of the previous 14-hour driving window. Therefore, the added flexibility Start Printed Page 33403will not decrease safety during adverse driving conditions.

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

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

As to driver health, the Agency acknowledges that the effect of specific regulatory changes on driver health is difficult to evaluate. First, most health conditions have multiple contributing factors and are discernible only over extended periods. Second, a cause-and-effect relationship between a rule and a given health outcome is difficult to establish. Driver health issues were addressed extensively in the 2005 final rule [70 FR 49978, 49982-49992, August 25, 2005]. The preamble noted that “FMCSA has reviewed and evaluated the available and pertinent information concerning driver health, with emphasis on chronic conditions potentially associated with changes from the pre-2003 and 2003 rules, to this final rule. The research on CMV driver health falls into several broad categories: (1) Sleep loss/restriction, (2) exposure to exhaust, (3) exposure to noise, (4) exposure to vibration, (5) cardiovascular disease, (6) long work hours, and (7) shift work and gastrointestinal disorders” (70 FR 49978, 49982).The Agency concluded that the 2005 rule would not have any effect on those potential health issues. That discussion remains applicable today with only a few changes. For example, FMCSA noted in 2005 that attempts to create a dose-response curve for the effects of exposure to diesel exhaust had not produced clear-cut results (70 FR 49983). Such an attempt would be even less useful today because exposure to diesel exhaust has declined significantly in the last 15 years as a result of the tightened EPA standards discussed in the 2005 rule. The incremental changes adopted in this final rule, though useful to motor carriers and drivers, do not change the conclusions explained in the 2005 final rule. As pointed out in the 2005 HOS final rule (70 FR 49978, 4983, August 25, 2005), attempts to create a dose-response curve for the effects of exposure to diesel exhaust, for example, have not produced clear-cut results. Such an attempt would be even more difficult for the incremental HOS changes promulgated today.