[Federal Register Volume 83, Number 164 (Thursday, August 23, 2018)]
[Proposed Rules]
[Pages 42631-42635]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-18379]


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DEPARTMENT OF TRANSPORTATION

Federal Motor Carrier Safety Administration

49 CFR Part 395

[Docket No. FMCSA-2018-0248]
RIN 2126-AC19


Hours of Service of Drivers

AGENCY: Federal Motor Carrier Safety Administration (FMCSA), DOT.

ACTION: Advance notice of proposed rulemaking (ANPRM).

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SUMMARY: The introduction of electronic logging devices and their 
ability to accurately record compliance with hours-of-service (HOS) 
regulations for drivers of commercial motor vehicles (CMVs) have 
prompted numerous requests from Congress and the public for FMCSA to 
consider revising certain

[[Page 42632]]

HOS provisions. To address these requests, FMCSA seeks public input in 
four specific areas in which the Agency is considering changes: The 
short-haul HOS limit; the HOS exception for adverse driving conditions; 
the 30-minute rest break provision; and the sleeper berth rule to allow 
drivers to split their required time in the sleeper berth. In addition, 
the Agency seeks public comment on petitions for rulemaking from the 
Owner-Operator Independent Drivers Association (OOIDA) and 
TruckerNation.org (TruckerNation). OOIDA petitioned the Agency to amend 
the HOS rules to allow drivers to take a rest break once per 14-hour 
duty period for up to three consecutive hours if the driver is off-
duty. OOIDA's petition also requests that the Agency eliminate the 30-
minute rest break requirement which the Agency had identified as an 
area of consideration for rulemaking. TruckerNation petitioned the 
Agency to revise the prohibition against driving after the 14th hour of 
the beginning of the work shift, allow drivers to use multiple off-duty 
periods of three hours or longer in lieu of having 10 consecutive hours 
off-duty, and eliminate the 30-minute rest break requirement.

DATES: Comments on this ANPRM must be received on or before September 
24, 2018.

ADDRESSES: You may submit comments identified by Docket Number FMCSA-
2018-0248 using any of the following methods:
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the online instructions for submitting comments.
     Mail: Docket Management Facility, U.S. Department of 
Transportation, 1200 New Jersey Avenue SE, West Building, Ground Floor, 
Room W12-140, Washington, DC 20590-0001.
     Hand Delivery or Courier: West Building, Ground Floor, 
Room W12-140, 1200 New Jersey Avenue SE, Washington, DC, between 9 a.m. 
and 5 p.m., Monday through Friday, except Federal holidays.
     Fax: 202-493-2251.
     Submissions Containing Confidential Business Information 
(CBI): Mr. Brian Dahlin, Chief, Regulatory Evaluation Division, 1200 
New Jersey Avenue SE, Washington, DC 20590.
    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, including collection of information comments for the Office 
of Information and Regulatory Affairs, OMB.

FOR FURTHER INFORMATION CONTACT: Mr. Thomas Yager, Chief, Driver and 
Carrier Operations Division, Federal Motor Carrier Safety 
Administration, U.S. Department of Transportation, 1200 New Jersey 
Avenue SE, Washington, DC 20590, (202) 366-4325.
    If you have questions on viewing or submitting material to the 
docket, contact Docket Services, telephone (202) 366-9826.

SUPPLEMENTARY INFORMATION: This ANPRM is organized as follows:

I. Public Participation and Request for Comments
    A. Submitting Comments
    B. Viewing Comments and Documents
    C. Privacy Act
    D. Public Meeting
II. Abbreviations and Acronyms
III. Legal Basis for the Rulemaking
IV. Background
    A. Short-Haul Operations
    B. Adverse Driving Conditions
    C. 30-Minute Break
    D. Split-Sleeper Berth
V. Comments Sought

I. Public Participation and Request for Comments

A. Submitting Comments

    If you submit a comment, please include the docket number for this 
ANPRM (Docket No. FMCSA-2018-0248), indicate the specific section of 
this document to which each section 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 phone 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 8\1/2\ 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. Late comments will be considered to the extent practicable. 
FMCSA may issue a proposed rule at any time after the close of the 
comment period.
Confidential Business Information
    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, CBI is 
eligible for protection from public disclosure. If you have CBI that is 
relevant or responsive to this ANPRM, 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 ANPRM. Submissions containing CBI 
should be sent to Brian Dahlin, Chief, Regulatory Evaluation Division, 
1200 New Jersey Avenue SE, Washington, DC 20590. Any commentary that 
FMCSA receives which is not specifically designated as CBI will be 
placed in the public docket for this rulemaking.
    FMCSA will consider all comments and material received during the 
comment period.

B. Viewing Comments and Documents

    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, 
between 9 a.m. and 5 p.m., e.t., Monday through Friday, except Federal 
holidays.

C. Privacy Act

    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-

[[Page 42633]]

14 FDMS), which can be reviewed at www.dot.gov/privacy.

II. Abbreviations and Acronyms

CMV Commercial motor vehicle
DOT Department of Transportation
ELD Electronic logging device
FR Federal Register
HOS Hours of service
U.S.C. United States Code

III. Legal Basis for the Rulemaking

    This ANPRM is based on the authority of the Motor Carrier Act of 
1935 and the Motor Carrier Safety Act of 1984 (1984 Act). The Motor 
Carrier Act of 1935 provides that ``The Secretary of Transportation may 
prescribe requirements for (1) qualifications and maximum hours of 
service of employees of, and safety of operation and equipment of, a 
motor carrier; and, (2) qualifications and maximum hours of service of 
employees of, and standards of equipment of, a motor private carrier, 
when needed to promote safety of operation.'' (49 U.S.C. 31502(b)).
    The HOS regulations discussed below concern the ``maximum hours of 
service of employees of . . . a motor carrier'' (49 U.S.C. 31502(b)(1)) 
and the ``maximum hours of service of employees of . . . a motor 
private carrier[.]'' (49 U.S.C. 31502(b)(2)). The adoption and 
enforcement of such rules were specifically authorized by the Motor 
Carrier Act of 1935. This ANPRM rests in part on that authority.
    The 1984 Act provides concurrent authority to regulate drivers, 
motor carriers, and vehicle equipment. It requires the Secretary of 
Transportation to ``prescribe regulations on commercial motor vehicle 
safety. The regulations shall prescribe minimum safety standards for 
commercial motor vehicles.'' Although this authority is very broad, the 
1984 Act also includes specific requirements: ``At a minimum, the 
regulations shall ensure that (1) commercial motor vehicles are 
maintained, equipped, loaded, and operated safely; (2) the 
responsibilities imposed on operators of commercial motor vehicles do 
not impair their ability to operate the vehicles safely; (3) the 
physical condition of operators of commercial motor vehicles is 
adequate to enable them to operate the vehicles safely . . .; and (4) 
the operation of commercial motor vehicles does not have a deleterious 
effect on the physical condition of the operators[.]'' (49 U.S.C. 
31136(a)).
    This ANPRM is also based on the authority of the 1984 Act, 
specifically 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) also addresses safe driving practices, this proposed rule also 
addresses that mandate.
    Before prescribing any regulations, FMCSA must also consider their 
``costs and benefits'' (49 U.S.C. 31136(c)(2)(A) and 31502(d)). The 
Agency seeks information on those factors in this ANPRM.

IV. Background

    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). 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]. In 
accordance with those Presidential directives and based upon its 
experience and expertise, FMCSA reviewed the driver HOS regulations 
and, as explained below, seeks information in the following four areas 
to determine if revisions may alleviate unnecessary regulatory burdens 
while maintaining CMV driver and motor carrier safety, as well as the 
safety of the public. On May 17, 2018 Administrator Martinez received a 
letter signed by 30 Senators expressing support for greater flexibility 
within hours of service regulations. In addition, numerous pieces of 
legislation were proposed or introduced in both chambers of Congress to 
address reforming current regulations.
    Briefly, the HOS rules limit CMV drivers to 11 hours of driving 
time within a 14-hour window after coming on duty following 10 
consecutive hours off duty (except that drivers who use sleeper berths 
may combine 2 hours of off-duty time with 8 consecutive hours in the 
sleeper berth). Drivers 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 must record their on- and off-duty time in 
records of duty status (RODS)--previously captured in paper ``logs'' 
but today (with some exceptions) through electronic logging devices 
(ELDs). Drivers may not drive after having accumulated 60 hours of on-
duty time in 7 consecutive days, or 70 hours in 8 days, but they may 
restart the 60/70-hour ``clock'' by taking 34 consecutive hours off 
duty.

A. Short-Haul Operations

    Under 49 CFR 395.1(e)(1)(ii)(A), drivers do not have to prepare 
RODS or use an ELD if they meet certain conditions, including a return 
to their work reporting location and release from work within 12 
consecutive hours. Drivers operating under this provision therefore 
have a 12-hour window in which to drive up to 11 total hours. Other 
truck (though not bus) drivers have a 14-hour window in which to drive 
up to 11 total hours. [49 CFR 395.3(a)(2)-(3)].

B. Adverse Driving Conditions

    The current rule in Sec.  395.1(b)(1) allows 2 additional hours of 
driving time under adverse conditions, which are defined in Sec.  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 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 to 16 hours.

C. 30-Minute Break

    Under 49 CFR 395.3(a)(3)(ii), except for drivers who qualify for 
either of the short-haul exceptions in Sec.  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. (The 30-minute break rule does not apply to drivers who 
operate CMVs within a 100 air-mile radius of their normal work-
reporting location and return to that location within 12 hours, as 
authorized by Sec.  395.1(e)(1), or to drivers who do not need a 
Commercial Driver's License (CDL), operate within a 150 air-mile radius 
of their work reporting location, and meet certain other requirements, 
as authorized by Sec.  395.1(e)(2)).

D. Split Sleeper Berth Time

    There are special HOS rules for CMV drivers who operate vehicles 
equipped with a sleeper-berth. In essence, these rules allow a sleeper-
berth user to divide the minimum 10 hours off-duty into an equivalent 
two separate periods. Drivers who use sleeper berths, as defined in 
Sec.  393.76, must take at least 8 consecutive hours of the 10-hour 
off-duty period in the sleeper berth as required by Sec.  
395.1(g)(1)(ii)(A)(1). In

[[Page 42634]]

addition to the 8- through 10-hour sleeper-berth period, in order to 
acquire additional driving time the driver using the sleeper berth 
exception must, either earlier or later in the duty period, have a 
separate period of at least 2 hours off-duty, which may be in the 
sleeper berth if desired. It does not matter which rest period is taken 
first. After the second required rest period is completed, the driver 
will have a new point on the clock from which to calculate hours 
available.
    The Agency also announced a proposal on ``Pilot Program To Allow 
Commercial Drivers To Split Sleeper Berth Time'' on June 6, 2017 (82 FR 
26232). This program, planned for Fall 2018, would monitor a limited 
number of commercial drivers with CDLs and who regularly use a sleeper 
berth to accumulate their required 10 hours of non-duty work status. 
During the pilot program, participating drivers would have the option 
to split their sleeper berth time into two periods, each of which must 
be at least 2 hours long. Driver metrics would be collected for the 
duration of the study, and participants' safety performance and fatigue 
levels will be analyzed. Additional information on the pilot program, 
including the timeline, can be found at: https://www.fmcsa.dot.gov/research-and-analysis/research/flexible-sleeper-berth-pilot-program.

E. OOIDA Petition for Rulemaking

    On February 13, 2018, OOIDA petitioned FMCSA to amend the HOS rules 
to allow drivers to take a rest break once per 14-hour duty period for 
up to 3 consecutive hours if the driver is off-duty. OOIDA explained 
that the rest break would effectively stop the 14-hour clock. It would 
also extend to the 17th hour after coming on duty (instead of the 
current 14th hour) 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 rest break requirement. The organization explained that 
there are many operational situations where the 30-minute rest break 
requires drivers to stop when they do not feel tired.
    A copy of OOIDA's petition is included in the docket referenced at 
the beginning of this ANPRM.

F. TruckerNation.org (TruckerNation) Petition for Rulemaking

    On May 10, 2018, TruckerNation petitioned the Agency to revise the 
prohibition against driving after the 14th hour after 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 three hours or longer in lieu of 
having 10 consecutive hours off-duty, and eliminate the 30-minute rest 
break requirement.
    TruckerNation believes the requested changes to the HOS 
requirements would achieve a level of safety that is equivalent to, or 
greater than, the level of safety that is provided by the current 
regulations.
    A copy of TruckerNation's petition is included in the docket 
referenced at the beginning of this ANPRM.

V. Comments Sought

    The Agency specifically seeks comments and data from the public in 
response to this ANPRM. We request that commenters address their 
comments specifically to the enumerated list of issues below, and 
number their comments to correspond to each issue. FMCSA anticipates 
that some of the information and data sought may include confidential 
business information. These comments should be filed in accordance with 
the requirements of 49 CFR 389.9 Treatment of confidential business 
information and the instructions under the subheading Confidential 
Business Information, under the headings ADDRESSES and Public 
Participation and Request for Comments.
    1. Short-haul operations.
    a. Do you have any data to show that extending the 12-hour period 
for the short-haul exception to the RODS/ELD requirements to 14 hours 
would change the safety performance of carriers using the short-haul 
provision?
    b. How specifically would a 14-hour period change your driver or 
carrier operations as compared to 12 hours?
    c. What would the incremental change be for your operations/
business if the exemption was changed to 14 hours? For example, would 
your operations expand or would your drivers/carriers move from non-
exempt status to exempt status. What would be the economic impacts of 
that incremental change?
    2. Adverse driving conditions.
    a. Is there adequate flexibility in the existing adverse driving 
conditions exception?
    b. How often do you currently utilize the adverse driving 
conditions exception?
    c. What are the economic impact of the current exception on your 
driver or carrier operation?
    d. Should the definition of adverse driving conditions be changed?
    e. Should the adverse driving exception apply to the 14-hour work 
day window, not just the 11-hour driving limit?
    f. How would the above changes affect the economic costs and 
benefits, and the impacts on safety and fatigue of the adverse driving 
conditions exception?
    3. 30-minute break.
    a. If the 30-minute rest break rule did not exist, would drivers 
obtain adequate rest breaks throughout a daily driving period to 
relieve fatigue?
    b. Are there alternatives to the 30-minute rest break that would 
provide additional flexibility to drivers while achieving the safety 
benefits goal of the current 30-minute break?
    c. If a rest break is retained, should it be taken off-duty or on-
duty while the driver is not driving?
    d. How does the 30-minute rest break impact the efficiency of 
operations from a driver's or a carrier's perspective?
    e. How would your suggestions impact the costs and benefits of the 
30-minute break?
    4. Split-sleeper berth.
    a. FMCSA has announced a proposed flexible sleeper berth pilot 
program. Beyond the information that will be collected in the pilot 
program, do you have any information that would support changing the 
current requirements?
    b. Are there alternatives that would make the sleeper berth options 
more effective or less costly?
    c. How often do you use the sleeper berth option currently; how 
would this change with your suggested regulatory alternatives?
    d. What cost impacts and safety benefits would result from 
different split sleeper berth options?
    5. OOIDA Petition.
    a. What specifically would change about your driver/carrier 
operations by extending the 14-hour driving window?
    b. Is there a likely increase in safety risk from extending the 14-
hour driving window? For example, would altering the current rule 
allowing 14 hours on duty and 10 hours off duty interfere with drivers' 
circadian rhythm? Could driver health be affected?
    c. Would a potential increase in safety risk be lessened by the 
requirement that all the additional time beyond 14 hours must be off-
duty time?
    d. Would allowing OOIDA's request for an extended break during the 
work day improve safety by allowing drivers to increase the total 
amount of off-duty

[[Page 42635]]

time during and immediately following the work from 10 hours and 30 
minutes to 13 hours, without reducing the maximum driving time 
available within 14-hour window?
    e. Are there other flexibilities or other non-safety benefits that 
could be realized if the 14-hour window is extended?
    6. TruckerNation Petition.
    a. Is there a likely increase in safety risk from eliminating the 
consecutive 14-hour driving window? For example, would the absence of a 
limit on the length of the work shift--the time between the driver 
coming on duty after accumulating the minimum of 10 hours off-duty and 
the driver being prohibited from driving--combined with splitting the 
required 10 consecutive hours off-duty into a number of segments, 
interfere with drivers' circadian rhythm? Could driver health be 
affected? Please provide data on the costs and benefits of this 
approach.
    b. Are there other flexibilities or other non-safety benefits that 
could be realized if the 14-hour window is eliminated?

    Issued under authority delegated in 49 CFR 1.87 on: August 21, 
2018.
Raymond P. Martinez,
Administrator.
[FR Doc. 2018-18379 Filed 8-21-18; 4:15 pm]
BILLING CODE 4910-EX-P


