FMCSA proposes amendments to its hours-of-service (HOS) requirements to provide greater flexibility for drivers subject to the HOS rules without adversely affecting safety. This would be accomplished by altering the short-haul exception to the record of duty status (RODS) requirement available to certain commercial motor vehicle (CMV) drivers, modifying the adverse driving conditions exception, 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 as qualifying breaks from driving, 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 (rather than the current 8/2 split), and allowing one off-duty break that would pause a truck driver's 14-hour driving window.
Comments on this notice must be received on or before October 7, 2019.
You may submit comments identified by Docket Number FMCSA-2018-0248 using any of the following methods:
To avoid duplication, please use only one of these four methods. See the “Public Participation and Request for Comments” portion of the SUPPLEMENTARY INFORMATION section for instructions on submitting comments.
Mr. Richard Clemente, Federal Motor Carrier Safety Administration, 1200 New Jersey Avenue SE, Washington, DC 20590-0001, by telephone at (202) 366-4325, or email at MCPSD@dot.gov. If you have questions on viewing or submitting material to the docket, contact Docket Services, telephone (202) 366-9826.
This NPRM is organized as follows:
A. Purpose and Summary of the Regulatory Action
VI. Overview of Comments to the ANPRM
A. Section 395.1 Scope of Rules in This Part
A. Executive Order (E.O.) 12866 (Regulatory Planning and Review), E.O. 13563 (Improving Regulation and Regulatory Review), and DOT Regulatory Policies and Procedures
If you submit a comment, please include the docket number for this NPRM (Docket No. FMCSA-2018-0248), indicate the specific section of this document to which each comment applies, and provide a reason for each suggestion or recommendation. You may submit your comments and material online or by fax, mail, or hand delivery, but please use only one of these means. FMCSA recommends that you include your name and a mailing address, an email address, or a telephone number in the body of your document so that FMCSA can contact you if there are questions regarding your submission.
To submit your comment online, go to http://www.regulations.gov, put the docket number, FMCSA-2018-0248, in the keyword box, and click “Search.” When the new screen appears, click on the “Comment Now!” button and type your comment into the text box on the following screen. Choose whether you are submitting your comment as an individual or on behalf of a third party and then submit.
If you submit your comments by mail or hand delivery, submit them in an unbound format, no larger than 81/2 by 11 inches, suitable for copying and electronic filing. If you submit comments by mail and would like to know that they reached the facility, please enclose a stamped, self-addressed postcard or envelope.
FMCSA will consider all comments and material received during the comment period and may change this proposed rule based on your comments. FMCSA may issue a final rule at any time after the close of the comment period.
Confidential Business Information (CBI) is commercial or financial information that is customarily not made available to the general public by the submitter. Under the Freedom of Information Act (5 U.S.C. 552), CBI is eligible for protection from public disclosure. If you have CBI that is relevant or responsive to this NPRM, it is important that you clearly designate the submitted comments as CBI. Accordingly, please mark each page of your submission as “confidential” or “CBI.” Submissions designated as CBI and meeting the definition noted above will not be placed in the public docket of this NPRM. Submissions containing CBI should be sent to Brian Dahlin, Chief, Regulatory Evaluation Division, Start Printed Page 44191Federal Motor Carrier Safety Administration, 1200 New Jersey Avenue SE, Washington, DC 20590-0001. Any commentary that FMCSA receives that is not specifically designated as CBI will be placed in the public docket for this rulemaking.
To view comments, as well as any documents mentioned in this preamble as being available in the docket, go to http://www.regulations.gov. Insert the docket number, FMCSA-2018-0248, in the keyword box, and click “Search.” Next, click the “Open Docket Folder” button and choose the document to review. If you do not have access to the internet, you may view the docket online by visiting the Docket Management Facility in Room W12-140 on the ground floor of the DOT West Building, 1200 New Jersey Avenue SE, Washington, DC 20590-0001, between 9 a.m. and 5 p.m. ET, Monday through Friday, except Federal holidays.
In accordance with 5 U.S.C. 553(c), DOT solicits comments from the public to better inform its rulemaking process. DOT posts these comments, without edit, including any personal information the commenter provides, to www.regulations.gov, as described in the system of records notice (DOT/ALL-14 FDMS), which can be reviewed at www.transportation.gov/privacy.
Under section 5202 of the Fixing America's Surface Transportation Act (FAST Act), Public Law 114-94, 129 Stat. 1312, 1534-1535 (Dec. 4, 2015), if a regulatory proposal is likely to lead to the promulgation of a major rule, FMCSA is required to engage in negotiated rulemaking or publish an advance notice of proposed rulemaking (ANPRM), unless the Agency finds good cause that an ANPRM is impracticable, unnecessary, or contrary to the public interest (49 U.S.C. 31136(g)). FMCSA published an ANPRM on August 23, 2018 (83 FR 42631).
The implementation of the Electronic Logging Device (ELD) rule (80 FR 78292, Dec. 16, 2015) and the ELD's ability to increase compliance with HOS regulations for drivers of CMVs prompted numerous requests from Congress and from CMV operators for FMCSA to consider revising certain HOS provisions. FMCSA has received petitions from multiple stakeholders requesting relief from the HOS rules, including the Owner-Operator Independent Drivers Association (OOIDA) and TruckerNation.org (TruckerNation). In response, FMCSA published the August 23, 2018 ANPRM, and held five public listening sessions. Today's NPRM addresses the areas of concern discussed in the petitions, listening sessions, and in the ANPRM.
Today's proposal would improve efficiency by providing flexibility in five areas, allowing operators to shift their work and drive time to mitigate the effect of certain variables (e.g., weather, traffic, detention times). Today's proposal would extend the maximum duty period allowed under the short-haul exception available to certain CMV drivers under 49 CFR 395.1(e)(1) from 12 hours to 14 hours. It would also extend, from a 100 to a 150 air-mile radius, the maximum distance from the work-reporting location in which drivers qualifying for the short-haul exception may operate. FMCSA also proposes to modify the exception for adverse driving conditions in § 395.1(b)(1) by allowing such conditions to extend the maximum driving windows under §§ 395.3(a)(2) and 395.5(a)(2) by up to 2 hours. The Agency proposes to make the 30-minute break requirement for property-carrying CMV drivers in § 395.3(a)(3)(ii) applicable only in situations where a driver has driven for a period of 8 hours without at least a 30-minute non-driving interruption. If required, a 30-minute break could be satisfied with a period, either off duty, in the sleeper berth, or on-duty not-driving. FMCSA also proposes to modify 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 time period would count against the maximum 14-hour driving window in § 395.3(a)(2). Finally, FMCSA proposes to add a new option under § 395.3(a)(3)(iii) that would allow one off-duty break of at least 30 minutes, but not more than 3 hours, during the course of a driver's 14-hour driving window to extend that period for the length of the break, provided drivers take at least 10 consecutive hours off duty at the end of the work shift.
The proposed rule would not result in any new costs for regulated entities. Instead, the proposed rule would result in increased flexibility for drivers and a quantified reduction in costs for motor carriers. The Federal Government would incur a one-time electronic Record of Duty Status (eRODS) software update cost of approximately $20,000. The proposed change to the 30-minute break requirement would result in a reduction in opportunity cost, or a cost savings, for motor carriers. FMCSA estimates that the 10-year motor carrier cost savings attributable to the proposed changes to the 30-minute break provision, net of the Federal Government costs, would total $2,348.9 million discounted at 3 percent, and $1,931 million discounted at 7 percent. These cost savings are $275.4 million annualized at a 3 percent discount rate and $274.9 million annualized at a 7 percent discount rate. All values are in 2017 dollars. There are a number of other potential cost savings of this proposed 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; reducing the need to apply for exemptions from the 30-minute break requirement; 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, the sleeper-berth provisions, and the new split duty period provision.
None of the proposals in today's NPRM would increase the maximum allowable driving time, but may change the number of hours driven, or hours worked during a given work shift. The flexibilities in this proposal 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) and to take breaks without penalty when they need rest; FMCSA does not anticipate that any of these time shifts would negatively impact drivers' health. As discussed later in this document, Start Printed Page 44192FMCSA anticipates that individual drivers may see a change in their work hours (both driving and non-driving) or vehicle miles traveled (VMT), but that the proposed changes would not result in an increase in freight movement or aggregate VMT. Aggregate VMT is determined by many factors, including market demand for transportation. FMCSA does not anticipate that the changes proposed in this rule would stimulate demand in the freight market, but acknowledges that freight loads may shift from one carrier or driver to another. However, FMCSA also acknowledges that if drivers and motor carriers cannot meet the current freight demands, the proposed rule may enable them to rearrange their daily schedules such that additional loads could be moved, resulting in an increase in aggregate VMT. FMCSA considers this an unlikely outcome of the proposed rule, and after consideration of the potential impacts, has determined that this proposal would not adversely affect driver fatigue levels or safety.
This NPRM 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 proposed below concern the “maximum hours of service of employees” of both motor carriers and motor private carriers, as authorized by the 1935 Act.
This NPRM 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 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 NPRM 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 proposed rule also addresses that mandate. To the extent section 31136(a)(4) focuses on the health of the driver, the Agency addresses that issue under the section Driver Health Comments, below. As for section 31136(a)(5), FMCSA anticipates the added flexibility of the NPRM would not increase the risk of coercion related to HOS rules.
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.
The HOS regulations in effect until 2003 were promulgated pursuant to the Motor Carrier Act of 1935 and then reissued under the Motor Carrier Safety Act of 1984, along with the rest of the Federal Motor Carrier Safety Regulations (53 FR 18042, May 19, 1988). The HOS rules are codified at Part 395 of Title 49 CFR. These regulations were originally promulgated in 1937, revised several times before 1940, and then left largely unchanged until 1962. They required 8 hours off between tours of duty work shifts that could be of indeterminate length, lasting until the driver accumulated a total of 15 hours on duty. Concerns that these regulations were outdated and contributed to driver fatigue led to an effort to incorporate new knowledge about fatigue and rest, and their effects on safety.
Revisions to the HOS regulations were proposed in an NPRM published in the May 2, 2000, Federal Register (65 FR 25540). Following reviews of the comments to the docket and additional study, FMCSA developed a revised set of HOS regulations. The final rule (the Start Printed Page 44194“2003 HOS rule”) was promulgated on April 28, 2003 (68 FR 22456), and took effect on January 4, 2004. A regulatory impact analysis (RIA) comparing the costs, benefits, and impacts of this rule relative to the previous rule and several alternatives was prepared in accordance with the requirements of Executive Order 12866. That RIA, which is available in the HOS rule docket, showed that full compliance with the 2003 HOS rule could both save lives and increase productivity compared to full compliance with the rule then in existence. Much of the safety advantage of the 2003 HOS rule was shown to come from the mandate for at least 10 hours off after each tour of duty, and from helping to keep drivers on a regular 24-hour cycle.
After the 2003 HOS rule had been in effect for several months, it was vacated by a Federal appellate court. On July 16, 2004, the United States Court of Appeals for the D.C. Circuit held that FMCSA had not considered effects of the changes in the HOS rule on drivers' health, as required by 49 U.S.C. 31136(a)(4). Public Citizen et al. v. FMCSA, 374 F.3d 1209 (D.C. Cir. 2004). Additionally, the court expressed concerns about several areas of the rule, including:
Permission to drive 11 hours in a tour of duty, rather than 10;
Allowing more hours on duty in a given week, as a result of the restart provisions;
Allowing drivers to split their off-duty periods into two parts through the use of sleeper berths; and
Lack of consideration of the use of electronic on-board recorders.
In response to the court's action, Congress reinstated the 2003 HOS rule for a year, to give FMCSA a chance to revisit the issues cited by the court. A new HOS rule was published on August 25, 2005, retaining most of the provisions of the 2003 rule but requiring drivers using sleeper berths to spend 8 consecutive hours in the berth and take an additional 2 hours either off duty or in the sleeper berth; this 2 hour period must be counted against the 14 hour driving window (70 FR 49978). This established one “core” 8-hour period of sleep, as called for by various scientific research studies, yet provided the driver flexibility in use of the shorter off-duty period. Drivers, however, objected to 8 hours in the sleeper berth, and, in general, to the lack of flexibility provided by the sleeper-berth provisions and 14-hour rule. The 2005 HOS rule also provided relief to some short-haul operations using lighter trucks.
Public Citizen and others challenged the August 2005 rule on several grounds. On July 24, 2007, the D.C. Circuit ruled in favor of Public Citizen and vacated the 11-hour driving time and 34-hour restart provisions (Owner-Operator Independent Drivers Association. Inc. v. FMCSA, 494 F.3d 188 (D.C. Cir. 2007)). The court concluded that FMCSA had violated the Administrative Procedure Act's requirements by failing to provide an opportunity for public comment on the methodology of the Agency's operator-fatigue model, which FMCSA had used to assess the costs and benefits of alternative changes to the 2005 HOS rule. In particular, the court found that the Agency had not adequately disclosed and made available for review the modifications it had made to the 2003 operator-fatigue model to account for time-on-task (TOT) effects in the 2005 analysis. The court concluded that FMCSA's methodology had not remained constant from 2003 to 2005 because the TOT element in the model was new and constituted the Agency's response to a defect in its previous methodology. The court concluded that the Agency violated the Administrative Procedure Act because it failed to give interested parties an opportunity to comment on the methodology of the crash risk model that the Agency used to justify an increase in the maximum number of daily and weekly hours that CMV drivers may drive and work. The court listed several elements of the way FMCSA calculated the impact of TOT that it held could not have been anticipated and that were not disclosed in time for public comment upon them. Turning to Public Citizen's second argument, the court also found that FMCSA had failed to provide an adequate explanation for certain critical elements in the model's methodology. In vacating the increase in the daily driving limit from 10 to 11 hours, the court found arbitrary and capricious what it described as FMCSA's “complete lack of explanation for an important step in the Agency's analysis,” the manner in which it had plotted crash risk as a function of TOT per hours of driving. The court also found that FMCSA had failed to provide an explanation for its method for calculating risk relative to average driving hours in determining its estimate of the increased risk of driving in the 11th hour. In vacating the 34-hour restart provision, the court found that FMCSA also had provided no explanation for the failure of its operator-fatigue model to account for cumulative fatigue due to the increased weekly driving and working hours permitted by the 34-hour restart provision.
In an order filed on September 28, 2007, the court granted in part FMCSA's motion for a stay of the mandate. The court directed that issuance of the mandate be withheld until December 27, 2007.
On December 17, 2007, FMCSA published an Interim Final Rule (IFR) amending the Federal Motor Carrier Safety Regulations, effective December 27, 2007, to allow CMV drivers up to 11 hours of driving time within a 14-hour, non-extendable window from the start of the workday, following 10 consecutive hours off duty (72 FR 71247). The IFR also allowed motor carriers and drivers to restart calculations of the weekly on-duty time limits after the driver has at least 34 consecutive hours off duty. FMCSA explained that the IFR reinstating the 11-hour limit and the 34-hour restart was necessary to prevent disruption to enforcement and compliance with the HOS rule when the court's stay expired, and would ensure that a familiar and uniform set of national rules governed motor carrier transportation. Public Citizen immediately requested the D.C. Circuit to invalidate the IFR. However, on January 23, 2008, the court issued a per curiam order denying Public Citizen's request. On November 19, 2008, FMCSA adopted the provisions of the IFR as a final rule (73 FR 69567).
On December 18, 2008, Advocates for Highway and Automotive Safety, Public Citizen, the International Brotherhood of Teamsters, and the Truck Safety Coalition (hereafter referred to as “HOS petitioners”) petitioned FMCSA to reconsider the research and crash data justifying the 11-hour driving rule and the 34-hour restart provision. FMCSA denied the petition on January 16, 2009. On March 9, 2009, the HOS petitioners filed a petition for judicial review of the 2008 rule in the D.C. Circuit and, on August 27, 2009, filed their opening brief. However, in October 2009, DOT, FMCSA, and the HOS petitioners reached a settlement agreement. DOT and FMCSA agreed to submit a new HOS NPRM to the Office of Management and Budget (OMB) by July 26, 2010, and to publish a final rule by July 26, 2011. Subsequently, FMCSA, DOT and the HOS petitioners agreed to publish the final rule on October 28, 2011. The parties filed a joint motion to hold the 2009 lawsuit in abeyance pending publication of the NPRM; the court later accepted that motion.
In 2011, after presenting various alternatives, FMCSA revised some aspects of the HOS regulations and maintained other provisions. The 2011 Start Printed Page 44195Final Rule could be divided into “daily” and “multi-day” provisions, which can be expressed as follows:
Drivers of property-carrying CMVs must take at least 30 minutes off-duty no later than 8 hours after coming on duty if they wish to continue driving after the 8th hour.
Drivers of property-carrying CMVs may drive up to 11 hours following an off-duty period of at least 10 consecutive hours.
Drivers of property-carrying CMVs may not drive after the end of the 14th hour after coming on duty following an off-duty period of at least 10 consecutive hours.
Drivers of property-carrying CMVs may obtain the equivalent of 10 consecutive hours off duty if they have a period of at least 8 hours in the sleeper berth and a second period of at least 2 hours either off duty or in the sleeper berth. Compliance is calculated from the end of the first two periods.
For Drivers of property-carrying CMVs, any period of 7 or 8 consecutive days can begin following a period of at least 34 consecutive hours off duty provided it included 2 periods between 1:00 a.m. and 5:00 a.m.
Several categories of motor carriers and drivers are exempt from parts of the HOS regulations or from the entire HOS regulation under the National Highway System (NHS) Designation Act of 1995 (referred to as the NHS Act) and other statutes.
Public Citizen, the American Trucking Associations, and others challenged the 2011 final rule on several grounds. On August 2, 2013, the D.C. Circuit vacated the requirement for short-haul drivers to take a 30-minute break, but upheld the 2011 rule in all other respects. American Trucking Associations, Inc., v. Federal Motor Carrier Safety Administration, 724 F.3d 243 (2013).
Sec. 133 of the Consolidated and Further Continuing Appropriations Act, 2015, Public Law 113-235, Div. K, Title I, sec. 133, 128 Stat. 2130, 2711-2713 (Dec. 16, 2014) suspended the 2011 restart provisions, which required 2 consecutive off-duty periods between 1:00 and 5:00 a.m. and allowed only one restart per week; temporarily reinstated the pre-2011 restart rule; and required a study of the effectiveness of the new rule. Sec. 133 of the Consolidated Appropriations Act, 2016, Public Law 114-113, Div. L., Title I, sec. 133, 129 Stat. 2242, 2850 (Dec. 18, 2015) made it clear that the 2011 restart provisions would have no effect unless the study required by the 2015 DOT Appropriations Act showed that those provisions had statistically significant benefits compared to the pre-2011 restart rule; this Act also expanded the factors that the Agency was required to evaluate by including driver health and longevity. The Further Continuing and Security Assistance Appropriations Act, 2017, Public Law 114-254, Div. A, sec. 180, 130 Stat. 1005, 1016 (Dec. 10, 2016), replaced Sec. 133 of the 2016 DOT Appropriations Act in its entirety to correct an error and ensure that the pre-2011 restart rule would be reinstated by operation of law unless the study required by the 2015 DOT Appropriations Act showed that the 2011 restart rule had statistically significant benefits compared to the pre-2011 restart rule. DOT concluded that the study failed to find statistically significant benefits, and the Office of Inspector General confirmed that conclusion in a report to Congress. The pre-2011 restart rule was therefore reinstated by operation of law.
Executive Order (E.O.) 13771, Reducing Regulation and Controlling Regulatory Costs, issued on January 30, 2017, directs executive agencies of the Federal government to “manage the costs associated with the governmental imposition of private expenditures required to comply with Federal regulations” (82 FR 9339, Feb. 3, 2017). The E.O. 13777, Enforcing the Regulatory Reform Agenda, issued on February 24, 2017, sets forth regulatory reform initiatives and policies to “alleviate unnecessary regulatory burdens placed on the American people” (82 FR 12285, Mar. 1, 2017). In accordance with those Presidential directives and based upon its experience and expertise, FMCSA reviewed the driver HOS regulations to determine if revisions might alleviate unnecessary regulatory burdens while maintaining CMV driver safety and health and motor carrier safety, as well as the safety of the public. On May 17, 2018, 5 months after the implementation of the ELD mandate mentioned above, Administrator Martinez received a letter signed by 30 Senators (available in the docket for this rulemaking) expressing support for greater flexibility in the HOS regulations.
The DOT has longstanding processes to periodically review regulations and other agency actions. If appropriate, FMCSA will revise regulations to ensure that they continue to meet the needs for which they were originally designed and that they remain justified, in accordance with applicable executive orders. On October 2, 2017, DOT published a Notification of Regulatory Review, stating that it was reviewing its “existing regulations and other agency actions to evaluate their continued necessity, determine whether they are crafted effectively to solve current problems, and evaluate whether they potentially burden the development or use of domestically produced energy resources” (82 FR 45750). As part of these reviews, DOT sought public comment on existing rules that are good candidates for repeal, replacement, suspension, or modification. The HOS regulations and ELDs were the most common substantive topics discussed in response to the DOT Notification of Regulatory Review. The HOS regulations were identified as an area for potential modifications both as a result of the public comments received and due to changes in tracking HOS compliance through implementation of the ELD rulemaking. The accuracy of the electronic data provided to enforcement is much higher than the information that was previously provided on paper. While the ELD rule did not change the HOS rules, the accurate recording of driving time by ELDs highlighted the rigidity of HOS provisions and the practical ramifications drivers faced.
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.
On February 13, 2018, 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. However, drivers would still be limited to 11 hours of driving time and required to have at least 10 consecutive hours off duty before the start of the next work shift.
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.
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. As 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.
Two additional petitions for rulemaking were received; one from the United States Transportation Alliance (USTA) and one from the United Drivers Association (UDA). The petitions were not discussed in the ANPRM due to the timing of receipt; however, they were reviewed and considered in the development of this NPRM.
The USTA petition proposed an HOS rule that would prohibit driving after 80 hours on duty in a 7-day period (instead of the 60-hour limit in §§ 395.3(b)(1) and 395.1(b)(1), and allow a 14-hour day for driving or other work duties. The drivers' remaining 10 hours would include 2 hours of off-duty time, and 8 hours of sleeper-berth time could be split into two segments, with a minimum of 2 hours per segment. The 80-hour clock would be reset by 24 hours off duty. The petition is included in the docket referenced at the beginning of this notice.
The UDA proposal maintained the 14/10 HOS rule; however, the 10 hours off duty could be split into two 5-hour sleeper-berth periods. The weekly on-duty time, after which driving would be prohibited, would be 80 hours in an 8-day period, with a 24-hour restart, similar to that proposed by USTA. The petition is included in the docket referenced at the beginning of this notice.
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. Transcripts of those listening sessions are available in the public docket for the rulemaking, and the sessions are available to stream at https://www.fmcsa.dot.gov/mission/policy/public-listening-sessions-hours-service.
The ANPRM asked a series of questions about the four topics and the two petitions for rulemaking mentioned above, but did not propose any regulatory changes. FMCSA appreciates the comments submitted. The Agency requests that individuals responding to the ANPRM comment again in the context of today's NPRM.
As noted above, FMCSA held a series of listening sessions. Comments provided at those sessions have been considered in the development of section VII of this preamble, “Discussion of the Proposed Rulemaking.”
In addition, the Agency received more than 5,200 comments on the ANPRM, including over 1,000 from CMV drivers. Commenters also included trade associations and industry groups, law enforcement agencies, safety advocacy groups, motor carriers, and governmental entities. The majority of ANPRM commenters supported changes to the HOS rules. Of the issues addressed in the ANPRM, most comments were addressed to the 30-minute break and the sleeper-berth issues. Drivers and individuals supported other issues raised in the ANPRM or petitions, especially extending the short-haul duty period from 12 hours to 14 hours. Many drivers and individual commenters were in favor of extending the maximum driving window by 2 hours in the event of adverse driving conditions. A few driver and individual commenters requested that the definition of “adverse driving conditions” be changed or clarified, to make understanding and compliance easier for users and enforcement personnel. A large number of CMV drivers, trade associations, and industry groups supported the elimination of the 30-minute break rule. However, safety advocacy groups opposed changes to the rule due to the lack of research on its safety impacts.
Many commenters favored expanding the sleeper-berth options to 5/5, 6/4, or 7/3. In addition, they would like to see both qualifying sleeper-berth periods stop the 14-hour driving window. Most of the trade associations that commented on short-haul operations approved of an expansion of the 12-hour driving window to 14 hours. Trade associations, and other commenters were also in favor of expanding the adverse driving condition provision to extend the duty period during which driving is allowed.
Generally, law enforcement and safety advocacy organizations opposed changes to the current HOS rules. These comments often referenced safety research identified in prior HOS rulemakings. The relevant studies are discussed in the sections below.
Most motor carriers that responded were in favor of all the suggested changes in the ANPRM. Most of the elected officials supported flexibility for drivers.
In addition to the four central topics covered by the ANPRM and the two petitions, FMCSA received comments and suggestions related to other aspects of the HOS rules.
Driver Health Comments. A number of commenters critiqued the current HOS rules, stating that the rules negatively impact their health. However, safety advocacy groups stated that changes to existing HOS would negatively impact health. The driver Start Printed Page 44197sleep apnea group, Truckers for a Cause provided research by Dr. Mona Shattell (3 studies cited in comments) on CMV driver mental health issues that showed stress caused by the “14-hour clock” to be a large cause and potential health issues. HOS changes which reduce this documented stress inducer would reduce driver stress and resulting health issues. They go on to add that fatigue research (Williamson 2001) has clearly shown that there is a fatigue impairment which greatly increases with being awake more than 14 hours. This impairment is equivalent to blood alcohol content (BAC) of .02% at 15 hours and .04% at 16 hours. With .04% being legally intoxicated for a CMV driver it is reasonable that HOS regulations should restrict driving beyond a 14 hour work day limit unless there has been reasonable restorative rest. The American Academy of Sleep Medicine focuses almost exclusively on the issue of fatigue—as it relates to driver health and some of the proposed changes. According to AASM, “these proposed changes would occur in the setting of other common sleep disorders, such as sleep apnea, shift work sleep disorder, or insufficient sleep, which increase the risk of drowsy driving . . . . Given the large body of evidence that sleepiness plays a significant role in crashes, we recommend against the proposed relaxation of the present rules, in the best interest of not only commercial drivers' health and safety, but also public safety as a whole.” The International Brotherhood of Teamsters commented on the 12-hour short haul provision, stating that several studies show that the majority of work-related injuries occurring among truck drivers result from non-driving work activities. When researchers further investigated these findings, they found that the types of injuries experienced by truck drivers varied by industry sector but were generally associated with falling from heights, trips, slips, falls, and overexertion due to manual materials handling. Drivers who are involved in short haul operations experienced occupational injuries primarily while performing three activities: (1) Operating the truck; (2) lifting/cranking; and (3) maneuvering into/out of truck cab . . . . Short-haul drivers will experience increased fatigue as a result of having to work an expanded number of hours and concurrently experience more fatigue-related occupational injuries and crashes . . . .” In addition, researcher collected data on the driver's heart rates to estimate metabolic output and determined that such drivers worked in a job that required a high level of energy.” FMCSA has considered these comments, and, as discussed in the Health Impacts section later in this document, proposes to find that the provisions of this NPRM would not adversely affect driver health.
Economic and Research Data, Surveys, and Studies Submitted to the Docket. A number of research papers, surveys, and studies, along with related data, were submitted to the docket. The relevant submissions, including those made by OOIDA, the American Transportation Research Institute (ATRI), and the Insurance Institute for Highway Safety (IIHS), have been considered and are discussed in the draft RIA for this NPRM, available in the docket. Other studies had been considered in previous rulemakings, were out of scope for this rule, or had data limitations.
Scope of Rulemaking. A number of the commenters raised HOS issues beyond the topics identified in the ANPRM. Many commenters believe driver pay is too low for the responsibilities they hold and stated that if drivers were paid more or compensated by the hour, there would be less of a need for HOS regulations. Other commenters stated that third parties such as shippers and receivers, who are not generally subject to FMCSA regulations, pressure drivers to violate HOS rules or create an environment where drivers are unable to take advantage of the work time allowed.
A number of commenters requested that FMCSA consider adopting the Canadian HOS standards. These comments were either general or focused on specific limits, rest breaks, and sleeper-berth provisions.
Currently, under 49 CFR 395.1(e)(1), certain CMV drivers do not have to prepare RODS, use an ELD, maintain supporting documents, or take a 30-minute break after 8 hours of duty if they meet certain conditions, including a return to their normal work reporting location and release from work within 12 consecutive hours after their starting time. Truck drivers operating under this provision are permitted a 12-hour work day in which to drive up to 11 total hours. Passenger-carrier drivers are allowed 10 hours of driving in a 12-hour workday. Under this short-haul exception, drivers also must operate within a 100 air-mile radius of their work reporting location. The motor carrier must maintain time records reflecting certain information. Specifically, the motor carrier that employs the driver and utilizes this exception must maintain and retain for a period of 6 months accurate and true time records showing: The time the driver reports for duty each day; the total number of hours the driver is on duty each day; the time the driver is released from duty each day; and the total time for the preceding 7 days in accordance with 49 CFR 395.8(j)(2) for drivers used for the first time or intermittently.
Under 49 CFR 395.3(a)(2)-(3), other property-carrying CMV drivers not utilizing the short-haul exception have a 14-hour window in which to drive up to 11 hours. Unless otherwise excepted, however, these drivers must maintain RODS, generally using an ELD. Drivers qualifying for the 49 CFR 395.1(e)(1) exception have the option to use the 14- or 15-hour driving window applicable to property and passenger carriers, respectively, under §§ 395.3 or 395.5, to fulfill the needs of the employer on a given day. However, drivers doing so would lose the benefits of the short-haul exception and be required to prepare RODS for those days.
Among other things, section 5521 of the FAST Act requires that the Agency allow drivers of ready-mixed concrete delivery trucks to return to the normal work reporting location within 14 hours of coming on duty rather than 12-hours of coming on duty. FMCSA implemented this provision on July 22, 2016 (81 FR 47714). FMCSA also has granted applications for exemptions, allowing an extension of the duty period in the short-haul provision from 12 to 14 hours, to the following entities: Waste Management Holdings, Inc., October 25, 2018 (83 FR 53940); American Concrete Pumping Association, November 1, 2018 (83 FR 54975); and National Asphalt Pavement Association, Inc., January 26, 2018 (83 FR 3864). Several additional groups have requested similar exemptions, but FMCSA has not yet published final decisions.
A majority of commenters asserted that FMCSA should extend the duty Start Printed Page 44198period for short-haul operations from 12 to 14 hours. However, other commenters, including drivers, disagreed. Some commenters suggested extending the air-mile radius of this provision to match the requirements of the 150 air-mile exceptions in §§ 395.1(e)(2) (Operators of property-carrying CMVs not requiring a CDL) and 395.1(k) (Agricultural operations).
A number of commenters said that they use the short-haul exception or would like to utilize it. They gave specific operational examples under which drivers exceeded one or both of the limits infrequently, and most described driving as a secondary job function for their drivers. These commenters stated that operational complexity increased due to drivers using different statuses. If the overall short-haul provision were modified, many commenters who supported changing the short-haul provisions believed they might not need other exemptions and exceptions.
This NPRM proposes extending the maximum allowable work day for property-and passenger-carrying CMV drivers under the § 395.1(e)(1) short-haul exception from 12 to 14 hours to correspond with the 14-hour period requirement for property drivers in § 395.3(a)(2). Today's proposal would also extend the existing distance restriction under this provision from 100 air miles to 150 air miles to be consistent with the radius requirement for the other short-haul exception under § 395.1(e)(2). Truck drivers would continue to be limited to 11 hours of driving time, and passenger carrier drivers to 10 hours of driving time. All CMV drivers using the § 395.1(e)(1) exception would need to complete their work day within 14 hours of the beginning of the work shift.
Using data from the FMCSA Motor Carrier Management Information System (MCMIS), the Agency analyzed concrete mixer crashes before and after the FAST Act allowed ready-mix concrete operators up to 14 hours to return to their work reporting location under the short-haul provision. A review of the MCMIS crash data found that extending the short-haul exemption from 12 to 14 hours did not statistically increase the share of concrete mixers involved in crashes. This evaluation is discussed further in the draft RIA. Furthermore, the Agency emphasizes that the changes to the short-haul exception proposed in today's notice would allow neither additional drive time during the work day nor driving after the 14th hour from the beginning of the work day.
The extension of the air-mile radius by 50 air miles would allow carriers to reach customers farther from the work reporting location while maintaining eligibility for the short-haul exception. FMCSA believes that extending the air-mile radius would not increase market demand for services, and thus would not result in increased vehicle miles traveled (VMT). FMCSA anticipates that if these drivers change their routes resulting in an increase in VMT (e.g., an increase in deliveries made per shift), that VMT would be shifted from other drivers or from the next day. On any given day, a driver may see an increase or decrease in VMT, but total VMT would not change. It could also be the case that on days that required driving past the 12th work hour, the driver was previously operating as a long-haul driver. Under this rule, the same driver could work the same day (i.e., no change in work hours or VMT for any driver), with the only change being eligibility for the short-haul exception. Thus, more drivers or more trips would now be eligible for the short-haul exception, and thus excluded from the requirement to take a 30-minute break or prepare daily RODS, potentially with an ELD. Carriers would have the flexibility to meet existing and future market demands within the area that could be serviced within a 14-hour duty day more efficiently (i.e., not incurring the costs of preparing RODS and retaining supporting documents for the days drivers did not satisfy the short-haul limits) while maintaining eligibility for the short-haul exception. Extending the air-mile radius and the work day would not extend the maximum allowable driving time. Therefore, the Agency does not anticipate any adverse impact on safety.
The IIHS provided data it believes indicates interstate truck drivers operating under the short-haul exception had a significantly higher crash risk than those not using the exception. FMCSA reviewed this study and found that it was based on a very small sample size, which prevented the authors from estimating a matched-pair odds ratio restricted to drivers operating under a short-haul exception, and was not nationally representative. Further, the authors noted that other related factors unobserved in the study may have led to this result. For example, it is possible that older or more poorly maintained trucks are used in local operations. The Agency relied on its own data and analysis discussed earlier in this section, which shows that increasing the duty day from 12 to 14 hours did not statistically increase the share of concrete mixers involved in crashes. The Agency's analysis is discussed in more detail in the RIA. The Agency invites comments on this determination.
In addressing today's proposed changes to the HOS rules, the agency encourages motor carriers and other stakeholders to submit driver record data supporting their comments in a manner that does not reveal the identity of an individual driver.
FMCSA seeks additional information and data on the impacts of expanding short-haul exemption provision, in part to assess its potential costs and benefits. Specifically:
Additionally, some commenters to the ANPRM requested that drivers using the short-haul exception be allowed to end the work shift at a different location than the one from which they were dispatched. FMCSA requests public comment about this request, including which segments of the motor carrier industry would be impacted by this Start Printed Page 44199potential change and whether this change would have an adverse effect on safety, or lead to operational changes such as increased driving time per trip or driving in the 12th and 13th hour after coming on-duty.
Section 395.1(b)(1) allows 2 additional hours of driving time for “adverse driving conditions,” which is defined in § 395.2 as “snow, sleet, fog, other adverse weather conditions, a highway covered with snow or ice, or unusual road and traffic conditions, none of which were apparent on the basis of information known to the person dispatching the run at the time it was begun.” Although the rule allows truck drivers up to 13 hours of driving time under adverse conditions, instead of the normal 11 hours, it does not provide a corresponding extension of the 14-hour driving window. Similarly, the current rule allows drivers of passenger-carrying CMVs up to 12 hours of driving time under adverse conditions without a corresponding extension of the applicable duty period.
Most commenters generally supported extending the adverse driving conditions provision to allow for a longer duty period. Some of these commenters noted that the additional time could be used to enable drivers to find a safe place to park. However, some commenters objected to a change to the exception. One commenter stated that due to the advancements of technology, there is no reason to replace proper trip planning with a 2-hour extension of the 14-hour driving window. Another commenter said that extending the 14-hour driving window would allow operators to be driving at a time in the drivers' work days when crash risks increase dramatically.
Frequency of Use. Some commenters said that they never used the adverse driving conditions exception, while others reported wide variances in the frequency of their use. A trade group provided survey results indicating an average use of the exception of 1.5 times a month. A commenter said drivers should not be allowed to use this exception more than twice in a 7-day period.
Clarify Definition. Many commenters were confused by the current definition and requested clarification, including how often the provision may be used. Several specifically asked about the definition's use of the word “apparent.” Some commenters asked that provisions be expanded to include “foreseen” conditions or requested that “unforeseen” be stricken from the definition. Some commenters pointed out that weather conditions would be known by the dispatcher before the start of a trip, given today's technology. However, these commenters still believed the provision should exist. Many commenters stated that detainment by a third party, such as a shipper or receiver, during loading and unloading should be considered an adverse condition.
Commenters also requested that the definition be changed to require “proof” or that the use of this status be “verifiable.” Commenters asked for a clear definition that would eliminate inconsistent enforcement practices. Commenters also stated that training drivers in the use of the regulations should be based on a clarified definition. Some commenters requested that specific weather conditions be mentioned in the definition, while others wanted it to also apply to a variety of road-work conditions.
Some commenters requested that determination of adverse driving conditions should be a decision of the driver rather than the dispatcher.
Passenger Carriers. Some commenters requested that “adverse passenger conditions” be taken into consideration in the definition, and requested that passenger carriers be allowed an extension of the 10-hour drive time due to “adverse passenger conditions.”
Today's proposal would allow a driver up to a 16-hour driving window (for property carriers) within which to complete up to 13 hours of driving, or a 17-hour duty period (for passenger carriers) within which to complete up to 12 hours of driving, if the driver encounters adverse driving conditions.
While the Agency is not aware of any research that is specific to the impact of adverse conditions on crash risk, the flexibility provided in the proposal would give drivers greater latitude to respond to adverse driving conditions by removing the existing penalty that “shortens” the driver's duty day if he or she responds cautiously to an adverse condition in a manner that takes up more duty time. FMCSA expects the proposed increase to duty time during adverse driving conditions to incentivize drivers facing these conditions to either travel at a reduced speed due to road conditions, which is likely to minimize the risk of crashes, or to suspend CMV operations in order to wait for the adverse conditions to abate. Further, the Agency stresses that this proposal would not increase available driving time beyond what is currently allowed by the exception. FMCSA does not anticipate that changes to the adverse weather condition provision would lead to increased VMT in most situations, but might shift when the miles are driven. This provision is intended to allow you to drive your anticipated trip within 1 shift (instead of extending it to 2) when adverse weather would decrease your VMT efficiency, or make road travel unsafe for a period of up to 2 hours. It is not intended to allow for additional trips or increased freight movement. FMCSA does not anticipate that motor carriers would be able to schedule additional freight movement because adverse conditions can't be planned for in advance.
FMCSA notes that the Federal Aviation Administration (FAA) and the Federal Railroad Administration (FRA) both allow duty period extensions in similar circumstances. FAA allows a 2-hour flight duty period extension for unforeseen operational circumstances (14 CFR 117.19(a)(1)) and FRA allows a 4-hour duty period extension for emergencies or work related to emergencies (49 CFR 228.405(c)). FRA's hours of service laws also do not apply to circumstances involving “Acts of God” (49 U.S.C. 21102(a)(3)).
The “adverse passenger conditions” mentioned by commenters from the bus industry do not involve driving conditions external to the vehicle, such as snow, sleet, fog, and the other conditions listed in the definition in § 395.2. Adverse passenger conditions are not within the scope of this rulemaking.
In addressing today's proposed changes to the HOS rules, the agency encourages motor carriers and other stakeholders to submit driver record data supporting their comments in a manner that does not reveal the identity of an individual driver.
FMCSA seeks additional information and data on the impacts of changing the adverse conditions provision, in part to assess its potential costs and benefits. Specifically:
Additionally, FMCSA requests public comment about potential modifications to the definition of “adverse driving conditions.” Specifically, the Agency requests input on the suggestion that knowledge of the existence of adverse conditions should rest with the driver rather than the dispatcher. Alternatively, should the requirement for lack of advance knowledge at the time of dispatch be eliminated? Should the current definition of “adverse driving conditions” be modified to address other circumstances?
Under 49 CFR 395.3(a)(3)(ii), except for drivers who qualify for either short-haul exception under § 395.1(e)(1) or (2), driving is not permitted if more than 8 hours have passed since the end of the driver's last off-duty or sleeper-berth period of at least 30 minutes.
Most commenters (including many drivers) supported removing the 30-minute break, citing a number of reasons, including stress on the driver and a perceived increase in crash risk. Many commenters stated that drivers already take sufficient breaks from driving, and that the additional break requirement is unsafe or unnecessary. Some commenters, including safety organizations, expressed support for the 30-minute break requirement, stating that rest breaks are necessary and should remain as currently required. Others stated that no other viable alternative could match the safety benefits achieved by an off-duty, 30-minute break.
Logistics/Time Taken. Some commenters recommended replacing the 30-minute provision with a rule requiring two breaks or similar expansions of break time. Drivers liked this idea if they felt it was more in-line with their existing operations, or if they thought it would be more advantageous. There was no data provided to show it increased safety. Commenters were discussing the current requirement, which mandates a 30-minute off-duty break that does not pause the duty clock. A commenter asked that the rule be revised to provide that the break may be taken any time during the duty period and that a second break would not be required if the first one is taken early in the duty period. Some commenters suggested allowing breaks to be split into smaller segments, such as 10 minutes. Others stated that the break should be tied to changes to the sleeper-berth provision.
Total On-Duty Time. Many commenters requested that on-duty non-driving time, e.g., fueling or loading and unloading, be counted towards the break time. A number of commenters also requested that breaks stop the 14-hour on-duty clock. Others said that only breaks over a certain length and spent in a sleeper berth should stop the 14-hour on-duty clock.
In Combination with the Split Sleeper-Berth Provisions. Several commenters recommended that modifications to the break be tied to sleeper-berth changes. Others suggested that breaks be reviewed in conjunction with the proposed Split Sleeper-Berth Pilot Program.
Removal of the 30-Minute Break for All Drivers. Since short-haul drivers are exempt from the 30-minute break requirement, several commenters believed that it ought to be eliminated for all drivers.
Incidental Drivers. Multiple commenters represented industries or operations for which driving is incidental to the principal job of the driver. A number suggested that their operations be exempt from the 30-minute break requirement.
FMCSA proposes to modify the existing 30-minute break requirement with a prohibition on driving for more than 8 hours without at least one 30-minute change in duty status. This would allow 30 minutes of on-duty, not driving time, off-duty time, or sleeper berth time to qualify as a break. Many drivers have interruptions of their driving time during normal business operations, such as loading or unloading a truck, completing paperwork, or stopping for fuel. Under the current rules, the break is required to be off-duty time during which no work, including paperwork, may be performed and is triggered after 8 hours, regardless of driving time. The flexibility provided in this proposal would allow these normal breaks from driving (i.e., “time on task” in the research literature) to count as an interruption of the 8 hours of driving status, provided the break lasts at least 30 minutes. Additionally, these proposed changes to the 30-minute break provision proposed by today's rule would not allow an increase in maximum driving time during the work shift or driving after the 14th hour from the beginning of the work shift.
In today's NPRM, the Agency is reconsidering the value of off-duty breaks relative to on-duty breaks. Based on comments received, the Agency has taken another look at the Blanco, et al. (2011), study to determine the applicability of its findings to the 30-minute break requirement.
While Blanco found that off-duty breaks resulted in a greater decrease in subsequent safety critical events (SCE) than on-duty breaks, many of the breaks were between 30 and 59 minutes in length, casting doubt on the findings' applicability to a strict 30-minute break. Furthermore, the off-duty breaks in the Blanco study were voluntary and many were taken in the sleeper berth. Both of these elements deviate from the current environment where a rigid 30-minute rest break requirement forces drivers to go off-duty regardless of whether they feel fatigued or have space to rest. Thus, the study participants could have experienced off-duty breaks that were more beneficial in nature than the off-duty breaks taken as a result of the 2011 final rule, as the study participants likely opted to take off-duty breaks as a countermeasure to fatigue.
Lastly, Blanco categorized breaks from driving into four groups; Rest During Duty Period (Type 1), Work During Duty Period (Type 2), Rest During Duty Period/Off Duty (Type 3), and Off-Duty (Type 4). Break Type 1 and Type 4 include resting activities such as eating and sleeping, and break Type 3 is a combination of Type 1 and Type 4 breaks such that it also includes rest activities. The Blanco study collected data from November 2005 to March 2007, when the regulatory guidance required that any time spent in the vehicle cab (with the exception of the sleeper berth) was considered on-duty Start Printed Page 44201time. This would include in-cab activities that after 2011 could be considered off-duty, such as eating or taking naps. As such, while the Blanco study analyzes the reduction in SCEs for Type 1 and Type 4 breaks separately, under the present regulatory structure they would likely both be considered off-duty breaks and thus would fit into Type 4; Off-Duty Break. Using the published data in the Blanco study, FMCSA recalculated the magnitude of SCE reduction for an off-duty break using the break frequency published in the study for break Type 1, Type 3, and Type 4. This calculation resulted in a 33 percent SCE reduction, which is lower than the 51 percent for Type 4 breaks alone, and very close to the 30 percent reduction for Break Type 2. FMCSA acknowledges that this result is not precise due to the limitations of the available data. Multiple break types could make up a single break, such that the summation of the break frequency by type can be more than the total number of breaks, and the magnitude of SCE reduction would likely be slightly different than what was calculated above. What is clear is that the magnitude of SCE reduction that Blanco attributed to off-duty breaks is larger than the SCE reduction that would be attributable to the off-duty 30-minute breaks required under the 2011 HOS rule (those that would be made up of Type 1, Type 3, Type 4 breaks as defined by Blanco). In light of this recent review, it appears that FMCSA placed too great a value on off-duty breaks, compared to other types of breaks described above. What seems to be consistent in the Blanco study was that breaks of any type reduced SCEs. Therefore, the Agency proposes to change the break provision to allow the driver to take a break while on duty but not driving, rather than requiring the time to be off duty.
Further, the Agency is proposing to tie the break requirement to eight hours of driving time rather than eight consecutive hours since the driver's last off-duty or sleeper berth period of at least 30 minutes. Based on the discussion above, FMCSA believes that on-duty breaks can have essentially the same SCE reduction as off-duty breaks. Tying the break requirement to driving time is in line with this finding. Many commenters to the ANPRM stated that the current 30-minute break provision requires them to go off duty after eight hours of on-duty time, even though they may not have driven for a long period of time when the rule requires a stop. FMCSA required the 30-minute break in the 2011 HOS rule based on literature that found a break from the driving task would lead to a reduction in SCEs in the hour after a break was taken. If drivers' schedules include time periods of at least 30-minutes in an on-duty/non-driving status, they are receiving the intended benefits of the current requirement. FMCSA continues to believe that a break from driving is important for safety, but acknowledges that the changes in today's proposed rule would be less burdensome for carriers and drivers while achieving the same goal—a break from the driving task. These proposed changes may result in a decrease in off-duty breaks, but FMCSA anticipates that any potential effect on fatigue from fewer off-duty breaks will be offset or minimized by continuing to require a break from the driving task. Further, as explained below, this proposal would allow drivers to take an off-duty break when they believe it would be most helpful at preventing them from driving while fatigued, as opposed to requiring a break regardless of the warning signs of fatigue, without impacting their 14-hour driving window. As an example, consider a driver who under the current requirements spends two hours in on-duty/not driving status to start his or her duty period subsequently drives for six hours, takes the required 30-minute break, and then drives for five more hours before reaching the 11-hour limit.