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