978-1285770178 Case Problem Case CPC-23-08 Part 3

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70 Fed.Reg. at 50,030. It also acknowledged driver comments that “the

suggest that drivers represented in the survey have time available within the

from driving past 14 hours after the start of their shift, the rule keeps the most

fatigued drivers off the road. Id. at 50,014. In light of these explanations, we

cannot say either that the agency failed to consider this aspect of the problem, or

that its weighing of the relevant considerations was arbitrary and capricious.

OOIDA also specifically objects to FMCSA’s decision that the 2-hour break used

to qualify (in part) for the sleeper-berth exception to the daily off-duty requirement

may not be used to extend the 14-hour daily on-duty limit. See OOIDA Br. 45-46.

OOIDA contends that this aspect of the rule discourages drivers from taking

breaks during their remaining 12 hours of driving–eligible time, and also “violates

alternates between 8-hour sleeper-berth shifts and 14-hour on-duty periods will

In responding to this point during the rulemaking, FMCSA explained that the

mandatory 2-hour break itself “provide[s] the driver with the opportunity to nap, if

driver maximizing working time under the sleeper-berth exception could

theoretically end up on a backward-rotating, 22-hour schedule, FMCSA never

sought to impose a rigid 24-hour clock. Instead, the agency simply concluded

We therefore conclude that FMCSA neither ignored the health and safety effects

of making the 14-hour daily on-duty limit nonextendable, nor otherwise acted

arbitrarily in making that determination.

Finally, OOIDA challenges the 2005 Rule’s modification of the sleeper-berth

exception. Under the rule, a driver using a sleeper berth may divide the daily off–

periods. One of the periods must consist of at least 8 continuous hours in a

had allowed drivers to divide the required 10 hours into two sleeper-berth periods

of any length as long as each of them was at least 2 hours long. OOIDA

challenges this modification on two grounds. A group of intervenors led by the

California Trucking Association adds a third.

1. OOIDA’s first contention is that FMCSA violated the APA because the 2005

‘should have anticipated’ the agency’s final course in light of the initial notice.” Id.

(quoting Small Refiner Lead Phase-Down Task Force, 705 F.2d at 548-49); see

Crawford v. FCC, 417 F.3d 1289, 1295-96 (D.C.Cir.2005). As the Supreme Court

recently explained, the object of the logical outgrowth test “is one of fair notice.”

Long Island Care at Home, Ltd. v. Coke, — U.S. —-, 127 S.Ct. 2339, 2351, 168

reasonable specificity[;][o]therwise, interested parties will not know what to

comment on.” Id. The 2005 NPRM, however, was sufficiently specific to satisfy

this requirement.FN6

FN6. Simultaneously taking a somewhat opposite tack, OOIDA also argues that

the NPRM was too specific because it listed “virtually every option for changing

[were] necessary to respond to the concerns raised by the court” in Public

Citizen. Id. With respect to the sleeper-berth exception, the notice outlined

specific options as follows:

FMCSA will consider a variety of possible changes to the sleeper-berth

provisions, including but not limited to: (1) Not permitting any split sleeper-berth

restricting variations on permissible sleeper–berth use to team drivers only.

Id. at 3349-50 (emphasis added).

The third option, italicized above, forecast the terms that would ultimately appear

in the 2005 Rule-or very nearly so. Indeed, the prospect that a new sleeper-berth

exception would contain a minimum requirement of 8 hours for one of the two

OOIDA acknowledges that the NPRM’s option (3) was close to the 8-hour

minimum of the final rule. See OOIDA Br. 32. Nonetheless, the petitioner objects

that even that option did not indicate that the second sleeper-berth period would

have to be at least 2 hours long. But FMCSA actually directed the attention of

interested parties to this issue as well. See 2005 NPRM, 70 Fed.Reg. at 3350 (“If

comments criticizing the sleeper-berth exception after it issued the final rule, and

contends that this proves that interested parties did not anticipate the provision.

In fact, the post-promulgation outpouring may merely indicate that the

commenters strenuously opposed the final rule. In any event, it tells us little

about what was “ reasonably foreseeable,” which is the crux of the logical

of the problem.” State Farm, 463 U.S. at 43, 103 S.Ct. 2856. OOIDA claims that

FMCSA failed to consider two issues relating to the impact of the modification on

team drivers.

First, OOIDA contends that FMCSA failed to consider the adverse economic

impact that the 8-hour requirement will have on team drivers. OOIDA explains

consider” this aspect of the problem. In fact, FMCSA acknowledged comments

from trucking companies and others contending that the burden of changes to

the sleeper-berth exception would fall primarily on team drivers. See 2005 Rule,

70 Fed.Reg. at 50,028-29. But the agency concluded that this marginal loss of

productivity and flexibility was justified by gains in other areas, and particularly by

FMCSA during the comment period. See OOIDA Br. 40; Oral Arg. Recording at

11:15.FN8 We therefore reject this argument without addressing its merits. See

Nat’l Wildlife Fed’n v. EPA, 286 F.3d 554, 562 (D.C.Cir.2002) (“It is well

established that issues not raised in comments before the agency are waived

and this Court will not consider them.”); accord National Ass’n of Clean Air

(CTA) challenges the 8-hour requirement on an additional ground not raised by

OOIDA: that the record does not support FMCSA’s finding that drivers need 7 to

8 consecutive hours of sleep each day. See CTA Br. 18-40. We reject this

challenge as well.

First, CTA contends that there is no evidence that drivers who split their sleep

Truck Accidents (1995), Docket No. FMCSA-2004-19608-2013 (J.A. 1517);

Robin P. Hertz, Tractor Trailer Driver Fatality: The Role of Nonconsecutive Rest

in a Sleeper Berth (1987), Docket No. FMCSA-2004-19608-2011 (J.A. 1493);

see also 2005 Rule, 70 Fed.Reg. at 49,994.

Second, CTA argues that FMCSA misinterpreted the only study it cited in stating

makes clear that it did not affect the agency’s conclusion. Cf. National Ass’n of

Home Builders v. Defenders of Wildlife, —– U.S. —-, 127 S.Ct. 2518, 2530, 168

L.Ed.2d 467 (2007) (“[W]e do not believe that this stray statement, which could

have had no effect on the underlying agency action being challenged, requires

that we … remand[ ] to the agency for clarification.”). We therefore reject the last

So ordered.