978-1285770178 Case Problem Case CPC-23-08 Part 1

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Owner-Operator Independent Drivers Ass’n, Inc. v. Federal Motor Owner-

494 F.3d 188

C.A.D.C.,2007

Wage & Hour Cas.2d (BNA) 1284

United States Court of Appeals,

District of Columbia Circuit.

FEDERAL MOTOR CARRIER SAFETY ADMINISTRATION, Respondent

International Brotherhood of Teamsters, AFL-CIO, et al., Intervenors.

long-haul truck drivers.

We reject the challenges raised by the Owner-Operators, but grant the petition

regulations. Much of the relevant background is set forth in our opinion in Public

Jurisdiction over HOS regulations passed from the ICC to the Federal Highway

one led by Public Citizen and the other by the Owner-Operator Independent

This is the second time this court has considered a challenge to the Federal

the Motor Carrier Act of 1935. See 49 U.S.C. § 31502(b)(1) (authorizing the

Operator Independent Drivers Ass’n, Inc. v. Federal Motor Carrier Safety Admin.

Carrier Safety Administration (FMCSA) in 2000. Along the way, Congress added

to the statutory basis for the HOS regulations. The current rule was promulgated

under the authority of both the Motor Carrier Act of 1935 and the Motor Carrier

condition of operators … 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.

Id. In addition, FMCSA is required to “consider the assignment and maintenance

of safety as the highest priority,” id. § 113(b), and to consider the “costs and

“within a 150 air–mile radius from their terminals.” Hours of Service of Drivers, 70

Fed.Reg. 49,978, 50,031 (Aug. 25, 2005).

• The daily driving limit. Drivers were not allowed to drive for more than a total of

10 hours without taking a required off-duty period. 49 C.F.R. § 395.3(a)(1) (2002)

(superseded).

the 15-hour on-duty limit, drivers were required to take at least 8 consecutive

hours off duty. 49 C.F.R. § 395.3(a) (2002) (superseded).

• The sleeper-berth exception. The regulations contained an exception to the 8–

hour off-duty requirement for drivers who took their off–duty time in a “sleeper

berth,” a compartment in the cabin of a truck with space for a driver to rest.

subject to a slightly different limit, which barred them from driving after having

been on duty for 70 hours in the past 8 days. See 49 C.F.R. § 395.3(b) (2002)

(superseded). All of the rules and proposed rules discussed in this Opinion

contain(ed) the same set of 7- and 8-day limits. For simplicity, we hereinafter

refer only to the 7-day limit.

issues pertaining to commercial motor vehicle … safety.” 49 U.S.C. § 31136 note.

Congress specifically instructed the agency to address the following issues:

8 hours of continuous sleep after 10 hours of driving, loading and unloading

operations, automated and tamper-proof recording devices, rest and recovery

cycles, fatigue and stress in longer combination vehicles, fitness for duty, and

NPRM explained that “[t]here is general consensus that modifications to current

HOS regulations would substantially improve [commercial motor vehicle (CMV) ]

safety by reducing the fatigue factor in CMV-involved crashes.” Id. at 25,540.

In the 2000 NPRM, the agency made a number of specific findings that identified

shortcomings in the pre-2003 HOS regulations. First, FMCSA found that “people

driver should have an opportunity for eight consecutive hours of uninterrupted

sleep every day.” 2000 NPRM, 65 Fed.Reg. at 25,554. In the agency’s view, the

old regulations’ 8-hour off-duty period was too short to allow drivers to eat,

commute, and conduct other personal activities while still getting enough sleep.

See id. Third, FMCSA concluded that drivers need weekly recovery periods “to

extend the 15-hour window by taking off-duty breaks.

Based on these findings, the 2000 NPRM proposed significant changes to the

existing HOS regulations. Instead of a 10-hour daily driving limit and a 15-hour

daily on-duty limit, the 2000 NPRM proposed allowing up to 12 hours of working

or driving time, and requiring an additional 2 hours of off-duty time at some point

drivers-who work in two-person teams and often use the sleeper berth to allow

one driver to obtain the required off-duty time while the other continues to drive-

could still use the sleeper-berth exception, but each period of time in the sleeper

berth would have to be at least 5 hours (up from 2 hours under the old

regulations). See id. at 25,586-87.

• The daily driving limit. The 2003 Rule increased (over the pre-2003 regulations)

the daily driving limit from 10 hours to 11 hours. See 2003 Rule, 68 Fed.Reg. at

22,457.

• The daily on-duty limit. The 2003 Rule reduced the daily on-duty limit from 15 to

14 hours and prohibited drivers from extending that limit by taking off-duty breaks

sleeper berth could satisfy the off-duty requirement in two separate periods as

long as each of them was at least 2 hours long. See id. at 22,501.

• The weekly on-duty limit. The 2003 Rule preserved the 60-hour weekly on-duty

limit, but created a new exception to this requirement, the “34-hour restart

provision.” See id. at 22,457.

substantially longer hours per week-as many as 17 more hours over 7 days. See

Public Citizen, 374 F.3d at 1215.

A group of petitioners led by Public Citizen challenged the 2003 Rule on a variety

of grounds. We agreed with them that “the rule [was] arbitrary and capricious

because the agency failed to consider the impact of the rule[ ] on the health of

Citizen’s other objections to the 2003 Rule. Id. We noted, however, that several

of those objections “also raise[d] troubling concerns about [FMCSA’s]

decisionmaking process,” and that the agency could consider the objections on

remand. Id. First, we expressed “very real concerns” about the increase in the

daily driving limit from 10 to 11 hours. Id. at 1217. We noted that the “agency

from the increase” in driving time. Id.

Second, we also found suspect the agency’s claim that the increase in the daily

driving limit to 11 hours could be justified by “the cost-benefit analysis it

conducted.” Id. The model employed in that analysis, we noted, “assume[d],

dubiously, that time spent driving is equally fatiguing as time spent resting-that is,

necessary ten hours of off-duty time by splitting their rest in two periods of time

spent in sleeper berths.” Id. at 1219. Public Citizen “argue[d] persuasively,” we

said, “that the agency’s justification for retaining this exception was not rational in

view of the conceded central premise of the HOS regulations … that ‘[e]ach driver

should have an opportunity for eight consecutive hours of uninterrupted sleep

[2003] rule’s rationality questionable.” Id. at 1222-23 (citation and internal

quotation marks omitted).

After our July 16, 2004 decision in Public Citizen vacated the 2003 Rule, FMCSA

sought and received temporary relief from the vacatur in Congress. The Surface

2005) (“2005 NPRM”). The 2005 NPRM used the 2003 Rule as its proposal and

sought “comment on what changes to that rule, if any, [were] necessary to

respond to the concerns raised by the court” in Public Citizen. Id. at 3339.

In August 2005, FMCSA promulgated the rule now under review. See Hours of

Service of Drivers, 70 Fed.Reg. 49,978 (Aug. 25, 2005) (“2005 Rule”). With a

two periods as long as each period was at least 2 hours long. The 2005 Rule, by

contrast, requires that one period consist of at least 8 hours in the sleeper berth.

The other period can be spent either in the sleeper berth or elsewhere and must

be at least two hours long. See id. at 50,030.

FMCSA also determined that the 2005 Rule would improve highway safety by

reducing fatigue-related accidents. First, it explained that the 2005 Rule’s change

to the sleeper-berth exception would reduce driver fatigue. It cited evidence that

“sleep accumulated in short time blocks is less refreshing than sleep

accumulated in one long time period,” and studies indicating that drivers using

Finally, FMCSA relied on a new cost-benefit analysis that it described in a

Regulatory Impact Analysis (RIA) released along with the 2005 Rule. See

FMCSA, Regulatory Impact Analysis and Small Business Impact Analysis for

Hours of Service Options (2005) (J.A. 1627) (“2005 RIA”). Based on this

analysis, FMCSA concluded that the economic costs to industry of rescinding the

regimes.

Public Citizen petitioned for review of the 2005 Rule, challenging the 11-hour

daily driving limit and the 34-hour restart provision. The Owner-Operator

Independent Drivers Association (OOIDA) also petitioned for review, challenging

the provision that renders the 14-hour daily on-duty limit nonextendable and the

Administrative Procedure Act (APA), 5 U.S.C. § 706. See Advocates for Highway

& Auto Safety v. FMCSA, 429 F.3d 1136, 1144-45 (D.C.Cir.2005); Public Citizen,

374 F.3d at 1216. Under the APA, we must set the rule aside if it is “arbitrary,

capricious, an abuse of discretion, or otherwise not in accordance with law,” 5

U.S.C. § 706(2)(A), or if it was promulgated “without observance of procedure

was disclosed, FMCSA failed to provide a reasoned explanation for some of its

critical elements, thus rendering it (and the rule) arbitrary and capricious; (3)

FMCSA’s treatment of a number of other safety considerations was also arbitrary

and capricious; and (4) the rule is contrary to law and arbitrary and capricious

because it fails to protect driver health. As explained below, we reach only the

[2] Link to KeyCite Notes 1. The APA requires that an agency publish notice of

proposed rulemaking, including “either the terms or substance of the proposed

rule or a description of the subjects and issues involved,” 5 U.S.C. § 553(b)(3),

and that it “give interested persons an opportunity to participate in the rule

making through submission of written data, views, or arguments,” id. § 553(c). As

NRC, 673 F.2d 525, 530-31 (D.C.Cir.1982)); see Chamber of Commerce v. SEC,

443 F.3d 890, 899 (D.C.Cir.2006); see also Air Transp. Ass’n of Am. v. FAA, 169

F.3d 1, 7 (D.C.Cir.1999) (“ ‘[T]he most critical factual material that is used to

support the agency’s position on review must have been made public in the

proceeding and exposed to refutation.’ ” (quoting Association of Data Processing

monetized and incorporated into the cost-benefit analysis.) The agency explained

the models in the RIA that it released along with the 2005 Rule. See 2005 RIA

(J.A. 1627); see also 2005 Rule, 70 Fed.Reg. at 50,045-55. FMCSA summarized

its analysis as follows:

To produce a realistic measurement of the impacts of each option, we divided the

Safety impacts were measured by feeding the on duty and driving schedules

from the carrier simulation model into an operator fatigue model to project driver

effectiveness levels, and then using the fatigue model results to estimate the

resulting changes in crash risks under each HOS option…. Changes in fatigue–

related crash risks … were then multiplied by the value of all affected crashes to

fatigue model. In part, those modifications represented an effort to respond to

criticisms this court leveled in our opinion vacating the 2003 Rule. One of those

criticisms was that the agency had “excluded time–on-task effects from the cost-

benefit analysis.” Public Citizen, 374 F.3d at 1219. The agency’s 2003 operator–

fatigue model had estimated a driver’s crash risk solely by reference to his or her

22,471).

In its 2005 analysis, FMCSA modified its 2003 operator-fatigue model to account

for time-on-task effects. To do so, the agency commissioned a study of crash

data from a national database known as “Trucks Involved in Fatal Accidents”

(TIFA). See Kenneth L. Campbell, Estimates of the Prevalence and Risk of

determined that the driver was fatigued at the time of the crash. This calculation

yielded the risk that a crash will be fatigue-related for each of the first twelve

hours of driving time, plus an aggregated figure for all driving in Hour 13 and

beyond. The figures ranged from less than 1% for Hour 1, to 4.4% for Hour 10, to

9.6% for Hour 11, to 25% for Hour 13 and beyond. Id. at 45 (J.A. 1665). As

curve” (derived a regression equation) for that and the other hour-by-hour figures

from the TIFA Study. 2005 RIA at 58-59 (J.A. 1678-79). (The curve is reproduced

in Part II.B.1 below.) Like the TIFA Study, the curve estimated the actual

percentage of crashes related to fatigue for each hour of driving. The curve’s

figures, however, were different from those in the TIFA Study. See id. In

Id.

FMCSA used the operator-fatigue model, along with the carrier-operations

model, to determine the benefits and costs of four regulatory options. Option 1

was the 2003 Rule. Option 2 was the 2005 Rule. Option 3 was the same as

Option 2, but with a 10-hour rather than 11-hour daily driving limit, with a 58-hour

Option 2, which differed only in that it imposed a 10-hour (as in the pre-2003

regulations) rather than 11-hour daily driving limit. Applying the same models, the

agency concluded that reducing the driving limit to 10 hours was “considerably

less cost-effective than the basic version of Option 2.” 2005 RIA at ES-7 (J.A.

1634); see 2005 Rule, 70 Fed.Reg. at 50,046-47.

(and particularly the 11-hour daily driving limit and 34-hour restart provision), the

model and its methodology were unquestionably among “the most critical factual

material that [was] used to support the agency‘s position.” Air Transp. Ass’n of

Am., 169 F.3d at 7 (citation and internal quotation mark omitted). The failure to

provide an opportunity for comment on the model’s methodology therefore

is an update of the [one] used in the 2003 RIA.” FMCSA Br. 44. It is true that an

agency does not violate the APA if its “methodology remain[s] constant” and new

data is merely “used to check or confirm prior assessments.” Solite Corp., 952

F.2d at 485; see Chamber of Commerce, 443 F.3d at 900 (stating that “further

notice and comment are not required when additional fact gathering merely

modification used to check or confirm prior analyses: it constituted the agency’s

response to an important defect in its previous methodology identified by this

court in Public Citizen. See 374 F.3d at 1218–19.

Although FMCSA concedes that the time-on-task multipliers were nowhere to be

found in the 2003 RIA, it contends that our opinion in Public Citizen should have

of the agency’s methodology, the import of which we discuss in Part II.B:

• Instead of using the figures from the TIFA Study to determine crash risk as a

function of time on task (hours driving), FMCSA fit the figures to a cubic curve.

None of the studies in the rulemaking record derived such a curve. An earlier

version of the TIFA Study, which was in the record, simply presented its risk

figures for each hour-derived directly from the crash data-in bar-chart form. See

Kenneth L. Campbell & Michael H. Belzer, Hours of Service Regulatory