Hours of Service Update
- Newsletter Article
- Public Citizen v Federal Motor Carrier Safety Administration
- Owner-Operator Independent Drivers, Inc. v Federal Motor Carrier Safety Administration
Newsletter Article
In 2003 the FMCSA promulgated new rules for hours of service. These hours of service we struck down by a unanimous court in, Public Citizen v. Federal Motor Carrier Safety Administration, 374 F.3d 1209 (D.C.Cir. 2004). Then, in 2005, the FMCSA re-promulgated the exact same 2003 rules that were struck down, save one exception. The one exception was that in 2003 the daily off-duty requirement could be split into two periods in the sleeper birth as long as one period was at least 2 hours. Under the 2005 rule the shortest period had to be at least 8 hours.
In 2007 the court struck down these 2005 rules for three reasons which can be paraphrased as follows: lack of notice and opportunity to comment, prejudice to the public by lack of ability to comment on methodology, and perhaps most importantly in the long term analysis - failing to provide reasoned explanation for critical elements of methodology. See Owner-Operator Independent Drivers, Inc. v. Federal Motor Carrier Safety Administration, 494 F.3d188 (D.C.Cir. 2007).
This brief article will not analyze all aspects of the opinion, but rather, concentrate on those most important to public safety. Of particular significance is that the 2005 rule, as with the 2003 rule, increased the daily driving limit from 10 hours to 11 hours. To begin with the FMCSA did not have any evidence to suggest or support that increasing the daily limit was safer. Nor did it provide evidence that there was no net change in safety. In fact, it was quite the opposite. “The agency freely concedes that ‘studies show’ that performance begins to degrade after the 8th hour on duty and [the degradation] increases geometrically during the 10th and 11th hour.” The agency put forth a proposition that the extra hour driving is no more fatiguing than an hour spent resting. However, as the court noted, this suggestion “disregarded the effects of ‘time on task’ and thus underestimated the risks of driving 11 hours.
Additionally the 2005 rule, as with the 2003 rule, had a 34 hour restart provision. This permitted drivers to restart their 60-hour limit anytime they took 34 hours off duty. This change allowed drivers to work substantially longer hours per week - as many as 17 more hours over 7 days. Drivers “pushing” to get the maximum number of hours would suffer more fatigue and disrupt their 24-hour circadian rhythms. Such drivers would be set on at twenty-one-hour daily cycle.
Although unanimously struck down on two separate occasions for public safety reasons, on December 11, 2007, the FMCSA made public an Interim Final Rule allowing drivers 11-hours driving per day, and a 34 hour restart provision.
Public Citizen v Federal Motor Carrier Safety Administration
Public Citizen v. Federal Motor Carrier Safety Admin.
C.A.D.C.,2004.
United States Court of Appeals,District of Columbia Circuit.
PUBLIC CITIZEN, et al., Petitioners,
v.
FEDERAL MOTOR CARRIER SAFETY ADMINISTRATION, Respondent.
Distribution LTL Carriers Association, Inc., et al., Intervenors.
No. 03-1165.
Argued April 13, 2004.
Decided July 16, 2004.
Background: Public interest groups petitioned for review of final rule of Federal Motor Carrier Safety Administration (FMCSA) revising hours of service (HOS) regulations limiting hours of driving and work of commercial motor vehicle drivers.
Holding: The Court of Appeals, Sentelle, Circuit Judge, held that final rule was arbitrary and capricious in that FMCSA neglected to consider statutorily mandated factor of rule's impact on driver health.
Petition granted.
West Headnotes
[1] Automobiles 48A 127
48A Automobiles
48AIIIPublic Service Vehicles
48AIII(C) Regulation of Operation and Management
48Ak127 k. Proceedings to Enforce or to Prevent Enforcement of Regulations. Most Cited Cases
In reviewing order of Federal Motor Carrier Safety Administration (FMCSA) revising regulations limiting hours of driving and work of commercial motor vehicle drivers, Court of Appeals was required to ensure that agency made rational connection between facts found and choice made. 49 C.F.R. § § 395.1-395.15.
48A Automobiles
48AIIIPublic Service Vehicles
48AIII(C) Regulation of Operation and Management
48Ak116 k. Employees. Most Cited Cases
Final rule of Federal Motor Carrier Safety Administration (FMCSA), revising hours of service (HOS) regulations limiting hours of driving and work of commercial motor vehicle drivers, was arbitrary and capricious in that FMCSA neglected to consider statutorily mandated factor of rule's impact on driver health; although FMCSA considered rule's effect of driver health on vehicle safety, such effect was not equal to rule's effect on physical condition of operators. 49 U.S.C.A. § 31136(a)(2, 3, 4); 49 C.F.R. § § 395.1-395.15.
[3] Administrative Law and Procedure 15A 390.1
15AAdministrative Law and Procedure
15AIV Powers and Proceedings of Administrative Agencies, Officers and Agents
15AIV(C) Rules and Regulations
15Ak390 Validity
15Ak390.1 k. In General. Most Cited Cases
An agency's rule normally is arbitrary and capricious if it entirely failed to consider an important aspect of the problem before it, and a statutorily mandated factor is an important aspect of any issue before an agency.
48A Automobiles
48AIIIPublic Service Vehicles
48AIII(C) Regulation of Operation and Management
48Ak116 k. Employees. Most Cited Cases
Interstate Commerce Commission Termination Act provision, directing Federal Motor Carrier Safety Administration (FMCSA) to issue notice of proposed rulemaking dealing with issues related to truck driver fatigue, including automated and tamper-proof recording devices, required FMCSA, at minimum, to collect and analyze data on costs and benefits of requiring electronic onboard recorders (EOBRs). 49 U.S.C.A. § § 31136(a)(1), 31506(d); Interstate Commerce Act, 49 U.S.C.A. § 31136 note.
48A Automobiles
48AIIIPublic Service Vehicles
48AIII(C) Regulation of Operation and Management
48Ak116 k. Employees. Most Cited Cases
“Deal with,” as used in Interstate Commerce Commission Termination Act provision directing Federal Motor Carrier Safety Administration (FMCSA) to issue notice of proposed rulemaking dealing with issues related to truck driver fatigue, meant “to take action with regard to someone or something.” Interstate Commerce Act, 49 U.S.C.A. § 31136 note.
West Codenotes
Held Invalid49 C.F.R. § § 395.1, 395.3, 395.5, 395.13, 395.15
*1210 **385 On Petition for Review of an Order of the United States Department of Transportation.
Bonnie I. Robin-Vergeer argued the cause for petitioners. With her on the briefs were Brian Wolfman, Scott L. Nelson, and Allison M. Zieve. Alan B. Morrison entered an appearance.
Henry M. Jasny was on the brief for amicus curiae Advocates for Highway and Auto Safety in support of petitioners.
Stephen L. Oesch, Shari T. Kendall, and Michele McDowell Fields were on the brief *1211 **386 for amicus curiae Insurance Institute for Highway Safety in support of petitioners.
Matthew M. Collette, Attorney, U.S. Department of Justice, argued the cause for respondent. With him on the brief were Peter D. Keisler, Assistant Attorney General, Robert S. Greenspan and Tara Leigh Grove, Attorneys, Jeffrey A. Rosen, General Counsel, U.S. Department of Transportation, Paul M. Geier, Assistant General Counsel, Peter J. Plocki, Senior Trial Attorney, and Brigham A. McCown, Chief Counsel, Federal Motor Carrier Safety Administration.
Robert Digges, Jr. argued the cause for intervenors American Trucking Associations, Inc., et al. With him on the brief were Erika Z. Jones, Adam C. Sloane, and David M. Gossett. Robert A. Hirsch and Kevin M. Williams entered appearances.
Before: EDWARDS, SENTELLE and TATEL, Circuit Judges.
Opinion for the Court filed by Circuit Judge SENTELLE.
SENTELLE, Circuit Judge:
Public Citizen and other “public interest” groups (collectively “Public Citizen” or “petitioners”) seek review of a final rule of the Federal Motor Carrier Safety Administration (“FMCSA” or “the agency”) revising existing hours of service (“HOS”) regulations limiting the hours of driving and work of commercial motor vehicle operators. For the reasons more fully set out below, we agree with petitioners that the rulemaking was arbitrary and capricious, because the FMCSA failed to take account of a statutory limit on its authority. We therefore grant the petition for review and vacate the rule.
I.
A. Regulatory Background
For years, federal regulators have limited the hours of service that truckers, as well as other operators of various vehicles in the transportation industry, can work and operate their motorized conveyances. The FMCSA, created by statute in 1999, is the agency charged with promulgating HOS rules regulating drivers of commercial motor vehicles. When Congress created the FMCSA, it provided as follows:
In carrying out its duties, the [FMCSA] shall consider the assignment and maintenance of safety as its highest priority, recognizing the clear intent, encouragement, and dedication of Congress to the furtherance of the highest degree of safety in motor carrier transportation.
42 U.S.C. § 113. Before Congress created the FMCSA, the Federal Highway Administration (“FHA”) was responsible for such rules.
In 1995, Congress ordered the FHA to revise the existing commercial motor vehicle HOS rules. Specifically, it provided that the FHA
shall issue an advance notice of proposed rulemaking dealing with a variety of fatigue-related issues pertaining to commercial motor vehicle safety (including 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 other appropriate regulatory and enforcement countermeasures for reducing fatigue-related incidents and increasing driver alertness).
49 U.S.C. § 31136 note. The FHA never issued the required notice of rulemaking, and so it fell to the FMCSA to do the job.
In May 2000, the FMCSA, in a formal notice published in the Federal Register, proposed a new set of commercial motor *1212 **387 vehicle HOS rules.65 Fed.Reg. 25,540 (2000) (“NPR”). Though the rules regulate all cargo-carrying commercial motor vehicles, the petition before us addresses the impact of the rule on long-haul truck drivers. The FMCSA promulgated those rules pursuant to, among other statutes, 49 U.S.C. § 31136 and § 31506, which are part of the Motor Carrier Act of 1935 and the Motor Carrier Safety Act of 1984. Section 31136 provides, in relevant part:
(a) Minimum safety standards ... At a minimum, the [HOS] 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.
Section 31506(d) provides:Before prescribing or revising any [HOS] requirement, [the FMCSA] shall consider the costs and benefits of the requirement.
The NPR proposed to revise the existing HOS commercial motor vehicle regulations, which had been in place (with some revisions) since 1962. The old rules had placed limits on the number of hours truckers could drive daily without off-duty time, and the number of hours truckers could work weekly during seven or eight consecutive days and still drive, with some exceptions not relevant here. See49 C.F.R. § 395.3 (2002) (superseded). These were limits on the time drivers could work and still drive; so far as the rules went, drivers who worked more than the daily or weekly limits could still work as long as they did not drive. The daily limits prohibited truckers from driving more than ten hours without taking eight hours of off-duty time or from driving after fifteen hours “on duty” without taking eight hours of off-duty time. Id. § 395.3(a)(1), (2). Drivers, however, could take periodic “off-duty” breaks during the day, thus extending the fifteen-hour driving-eligible “on duty” period beyond fifteen hours. The rules also permitted drivers to obtain the necessary eight nominally “consecutive” hours' sleep by resting in a “sleeper berth,” an enclosed compartment in the cargo space of a truck with space for drivers to sleep. Drivers could obtain their rest in sleeper berths in two separate periods totaling eight hours, each of which was at least two hours long. Id. § 395.1(g). That meant that a long-haul truck driver could satisfy regulatory requirements, for example, by driving six hours, resting for five in his attached sleeper-berth, driving another four, and resting another three hours. (The parties refer to this feature of the old rules as the “sleeper-berth exception.”) The weekly driving limits prohibited driving after having been on duty for sixty hours in seven consecutive days, or seventy hours in eight consecutive days. Id. § 395.3(b). To enforce these requirements, the old rules required drivers to maintain log books recording their hours and duty status, and subjected drivers to roadside inspections of the books. Id. § 395.8.
B. The Proposed Rule
The FMCSA proposed a significant revision to these rules in the 2000 NPR. It based these revisions on some general scientific conclusions regarding the consequences of sleep deprivation among commercial*1213 **388 motor vehicle operators. It noted that research showed that people are much more alert and have better reaction times when they are on regular, twenty-four-hour circadian schedules, as humans are “programmed” to function best when they go to sleep and wake up around the same time every day. 65 Fed.Reg. at 25,553-54. These effects place nighttime drivers in a physiologically vulnerable position, the agency concluded, because they must sleep during the day, when their bodies are least receptive to sleep, and work during the night, when they are physiologically and cognitively least able. That vulnerability of drivers, in turn, creates a substantial risk of substandard and potentially unsafe driving performance on the part of drivers unless they obtain regular and sufficient restorative sleep. Id. at 25,554. To avoid these problems, the agency concluded that drivers should get, at a minimum, “eight consecutive hours of uninterrupted sleep every day.” Id.
Accordingly, the agency proposed several revisions to the existing HOS commercial motor vehicle driver regulations. For long-haul truckers, the agency proposed to limit daily on-duty and driving time to twelve hours, with two additional hours off sometime during the workday, providing for a maximum workday of fourteen hours. Id. at 25,581. (Separate rules applied to other categories of commercial motor vehicle drivers.) The NPR proposed requiring drivers to get ten consecutive hours of off-duty time after a fourteen-hour workday, putting drivers on a twenty-four-hour cycle, assuming they maximized work time and minimized off-duty time. Id.
There were at least three justifications for the increase in mandatory off-duty time and the decrease in permissible on-duty time. The first was the need to increase the old rules' eighteen-hour on-duty/off-duty work cycle to a twenty-four hour cycle; the old rules had permitted an eighteen-hour cycle by requiring only eight hours of off-duty time after ten hours of driving. The change to a twenty-four hour maximum cycle, the agency reasoned, better approximated circadian rhythms. The second was the need to allow enough time for drivers to get sufficient continuous sleep. The old rules, by requiring only eight hours of off-duty time, concluded the agency, had not allowed drivers to obtain seven or eight hours' sleep, because drivers had to spend much of this off-duty time on daily personal tasks, such as commuting, eating meals, running personal errands, and having a family and social life. Id. at 25,554. The last justification was the agency's conclusion that the risk of a driver crashing “increases markedly after the 12th hour of any duty time during the work shift,” which justified limiting daily on-duty and driving time to twelve hours. Id. at 25,556.
The agency also proposed to modify the old rules' sleeper-berth exception. Citing research showing that split-sleep was less restorative than continuous sleep, the agency proposed to eliminate the exception for solo drivers. Id. at 25,586. That would mean that solo drivers could no longer accumulate the required amount of off-duty time by splitting their time in a sleeper berth. The agency proposed to retain the exception for team drivers, but increased the minimum sleeper-berth period from two to five hours. Id. at 25,587. The proposal, in addition, no longer allowed drivers to extend their “on-duty” period by taking periodic breaks during the day and instead provided for a mandatory off-duty period of two hours. It counted any additional break time against drivers' total on-duty driving-eligible time.
The rule proffered in the NPR also would have required drivers to take a mandatory “weekend” of thirty-two to fifty-six-six*1214 **389 hours off-duty each week, covering two consecutive periods from 12 a.m. to 6 a.m. Id. at 25,581, 25,568 tbl. 5, 25,587-88. This additional recovery period was necessary, according to the agency, to compensate for sleep debts drivers accrue during each weeks' work. Id. at 25,555-56. In addition, the weekend would ensure that drivers have an opportunity to sleep during two nighttime periods each week - “circadianoptimal times” - and prevent drivers from having to work five consecutive night shifts. Id. at 25,557-58.
Finally, the proposed rule would have required truckers to use electronic onboard recorders (“EOBRs”) instead of logbooks to monitor their adherence to the new regulatory requirements. Id. at 25,598. Those recorders would automatically monitor the date, driving distance per day, on- and off-duty time, start time, and would have a continuous time scale. See id. at 25,606. Drivers would not be permitted to edit the recorded figures. The agency proposed requiring such recorders because it determined that falsification of logbooks, the only form of compliance monitoring mandated by the old rules, was widespread. Id. at 25,558.
C. The Final Rule
The eventual rule, promulgated in April 2003, was still a significant revision to the old rules, but differed markedly from the NPR. See 68 Fed.Reg. 22,456 (2003). The new rule prohibited truckers from driving without ten hours of off-duty time after fourteen hours of starting work and limited daily driving time during that work period to eleven hours. Id. at 22,457. As compared to the old rules, those limits increased the required off-duty time from eight to ten hours, decreased the total permissible driving-eligible workday from fifteen to fourteen hours, but increased the total maximum daily possible driving from ten to eleven hours. The new rules also eliminated a loophole in the old rules. As discussed, the old rules had allowed drivers to extend the fifteen-hour duty period by taking breaks throughout the day, allowing them to drive after having been at work much more than fifteen hours. By prohibiting driving fourteen hours after starting work, rather than after fourteen hours “on duty,” the new rules eliminated this loophole and prohibited driving after fourteen hours of work, including on-duty breaks. Unlike the rule proposed in the NPR, however, the final rule did not require a mandatory two-hour break during the day.
This regulatory framework set drivers' schedules at a twenty-one-hour daily cycle for those who drove the maximum number of hours (eleven) and then took the minimum possible number of off-duty hours (ten). Drivers who worked - both by driving and other tasks - the maximum possible on-duty driving-eligible time (fourteen hours), however, had a twenty-four-hour daily cycle if they maximized working hours and minimized off-duty time (ten hours). Following the research cited in the NPR, the agency recognized a “general agreement on the concept of a 24-hour work/rest cycle,” i.e., the body's natural circadian rhythms. Id. at 22,469. The agency, however, justified not requiring all drivers to operate on a twenty-four-hour cycle by saying that such a rule would unduly disrupt the trucking industry, though it conceded that such a rule would be “ideal from a scientific viewpoint.” Id. Still, the agency noted that its framework “move[d] toward a 24-hour work/rest cycle” while minimizing the costs of making the rule “inflexible.” Id.
The agency also considered, and rejected, the NPR's proposed mandatory “weekend” at the end of each work week, although it retained the old rules' prohibition*1215 **390 of driving after more than sixty hours of on-duty time during a seven-day period, and after more than seventy hours of on-duty time during an eight-day period. Id. at 22,502. The mandatory weekend requirement, the agency implied, “would create havoc on the already overcrowded highways in the daylight hours,” by restricting nighttime driving. Id. at 22,477. Instead of a mandatory weekend, the agency allowed a thirty-four-hour “restart” provision. Id. at 22,502. This provision permitted drivers to “restart” their work week after taking thirty-four consecutive hours off-duty, meaning that they could work a new seven- or eight-day consecutive driving period that comported with the weekly maximum hour limits. The agency justified the restart provision by arguing that thirty-four hours was enough to allow drivers to obtain seven or eight hours of uninterrupted sleep on each of two consecutive days, thereby allowing them to obtain adequate restorative sleep and freeing them to start driving anew as part of a sixty- or seventy-hour work week. Id. at 22,479.
As compared to the old rules, the restart provision increased the number of hours truckers could work per week. The old rules had capped the number of hours a trucker could drive after working each week at sixty (or seventy for eight days) regardless of whether a trucker got thirty-four hours' consecutive rest during the week. The new rules, by contrast, allowed drivers to work more hours if they took thirty-four hours off before the close of the weekly limits. A driver could work seventy-seven hours over seven days, for example, by working twenty-one hour-driving/rest rotations seven days a week, assuming the driver took thirty-four consecutive hours off after driving the maximum fifty-five hours and took the minimum forty hours off over the first four calendar days.
The final rule also revised the NPR's proposed restructuring of the sleeper-berth exception. The NPR had proposed eliminating that exception for solo drivers but retaining it, in modified form, for team drivers. The agency ultimately decided that this was unwise. It decided to allow drivers to obtain the required ten hours' rest in exactly two chunks, one of which was at least two hours long (in contrast to the five-hour minimum the NPR's recommendation would have required for team drivers). 49 C.F.R. § 395.1(g) (2003). The NPR's rule would have instead required that solo drivers take ten continuous hours off duty, whether spent in a sleeper berth or not.
In retaining the sleeper-berth exception for solo drivers, the agency reasoned that the “proximity and convenience” of the berths for truckers reduced the importance of having a longer rest period for drivers who sleep in berths. 68 Fed.Reg. at 22,466. A longer period, the agency worried, would be unduly inflexible, as it would require a driver who sleeps for seven hours in a berth to refrain from working another three hours. Id. The final rule noted, too, that ninety percent of truckers currently use sleeper berths, and that their use “is firmly entrenched in the practice, culture, and equipment of the trucking industry.” Id. The agency also cited a lack of evidence that retaining the sleeper-berth exception was a safety hazard, and concluded that the existing studies that purported to show that dividing sleep in berths was dangerous were actually inconclusive. Id. at 22,465-66.
The agency altered the proposed rule on yet another point. The NPR had proposed requiring truckers to install EOBRs to monitor compliance with the rules; in the final rule the FMCSA decided not to do so “at this time,” but instead to continue*1216 **391 relying on logbooks. Id. at 22,488. The agency reasoned that there was insufficient evidence regarding the costs and benefits of requiring EOBRs. Id. The agency also was concerned that it would be difficult to standardize EOBRs and that they would be expensive. Id. Finally, the agency cited concerns that the recorders would be unduly intrusive. Id.
This petition for review followed.
II.
[1] Petitioners claim that the final rule is arbitrary and capricious in several respects. We review the adequacy of the agency's reasoning under the familiar standard of Motor Vehicle Manufacturers Association v. State Farm Mutual Automobile Insurance Co., 463 U.S. 29, 41-44, 103 S.Ct. 2856, 2865-67, 77 L.Ed.2d 443 (1983). That requires us to ensure that the agency made a “rational connection between the facts found and the choice made.” Id. at 43, 103 S.Ct. at 2866 (internal quotation marks and citation omitted). We agree with petitioners that the rule is arbitrary and capricious because the agency failed to consider the impact of the rules on the health of drivers, a factor the agency must consider under its organic statute. Because the agency has wholly failed to comply with this specific statutory requirement, this single objection from petitioners is sufficient to establish an arbitrary-and-capricious decision requiring vacatur of the rule.
Several of petitioners' other objections also raise troubling concerns about the decisionmaking process. We do not, however, enter final judgment on those, as we are vacating and remanding the matter in any case and the agency will be free in its further proceedings to consider the other objections anew in light of this opinion and its own responses to the driver health requirement.
A. Driver Health
[2][3] We hold that the final rule is arbitrary and capricious because the agency neglected to consider a statutorily mandated factor - the impact of the rule on the health of drivers. In promulgating “regulations on commercial motor vehicle safety,” and HOS regulations are undoubtedly on that exact subject, the FMCSA is required “[a]t a minimum [to] ensure that ... 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)(4). As the Supreme Court stated in State Farm, an agency's rule normally is arbitrary and capricious if it “entirely failed to consider an important aspect of the problem” before it. 436 U.S. at 43, 98 S.Ct. at 1666. A statutorily mandated factor, by definition, is an important aspect of any issue before an administrative agency, as it is for Congress in the first instance to define the appropriate scope of an agency's mission. When Congress says a factor is mandatory, that expresses its judgment that such a factor is important. In accordance with this principle, we have held that “the complete absen[c]e of any discussion” of a statutorily mandated factor “leaves us with no alternative but to conclude that [the agency] failed to take account of this statutory limit on [its] authority,” making the agency's reasoning arbitrary and capricious. United Mine Workers v. Dole, 870 F.2d 662, 673 (D.C.Cir.1989).
The FMCSA points to nothing in the agency's extensive deliberations establishing that it considered the statutorily mandated factor of drivers' health in the slightest. Instead, the agency states that “[t]he statute does not require the agency to protect driver health to the exclusion of other considerations such as the costs and benefits of the proposed regulation.” *1217 **392 FMCSA Br. at 54-55. But neither petitioners nor the court suggests that the statute requires the agency to protect driver health to the exclusion of those factors, only that the agency must consider it. So far as the record reveals, it did not.
The FMCSA's only effort to show that it did consider driver health is to point out that it considered the effect of driver health on vehicle safety and to argue that consideration of the health of drivers therefore “permeated the entire rulemaking process.” FMCSA Br. at 55. But the statute requires the agency to consider the impact of the rule on “the physical condition of the operators,” not simply the impact of driver health on commercial motor vehicle safety. 49 U.S.C. § 31136(a)(4). Under the statute, vehicle safety is a distinct factor the agency must consider, so considering the effect of driver health on safety cannot be equal to considering the impact on the physical condition of the operators. Id. § 31136(a)(2), (3). It is one thing to consider whether an overworked driver is likely to drive less safely and therefore cause accidents. Whether overwork and sleep deprivation have deleterious effects on the physical health of the driver is quite another. This is not to suggest that the two factors are unrelated: healthy drivers presumably cause fewer accidents and conversely drivers who have fewer accidents suffer fewer injuries. However, the relatedness of the concept discussed to the statutorily mandated factor that the agency does not discuss does not relieve the agency of the duty of compliance with the congressional instruction.
It may be the case, for example, that driving for extended periods of time and sleep deprivation cause drivers long-term back problems, or harm drivers' immune systems. The agency may of course think that these and other effects on drivers are not problematic (or are outweighed by other considerations, like cost), but if so it was incumbent on it to say so in the rule and to explain why. Its failure to do so, standing alone, requires us to vacate the entire rule as arbitrary and capricious, as the agency's failure to consider this factor, to borrow a phrase from the agency's brief, “permeated the entire rulemaking process.”
B. Other Concerns with the Rule
As we said above, we will not render final decision on petitioners' other objections to the rule, as the failure of the agency to consider the statutorily mandated factor is dispositive and especially because the agency's handling of the other factors may be different after reconsideration in light of whatever decisions it may reach with respect to the effect of the rule on driver health on remand. We nonetheless note, for a sense of completeness, the troubling nature of these other facets of the rulemaking.
1. Increase in Maximum Driving Time from Ten to Eleven Hours
Petitioners challenge the rationality of the agency's decision to increase the maximum permissible daily driving time from ten to eleven hours. This challenge illustrates the relatedness of the entire rulemaking to the statutorily mandated driver-health factor upon which we are turning our decision. While the challenge to the increase in driving time is distinct, and theoretically could be the basis of the granting of a petition for review by itself, it is also a factor that the agency may wish to consider anew in weighing the effects of the rulemaking on the physical condition of drivers.
In any event, petitioners' challenge raises very real concerns. The old HOS regulations, as we have discussed, had prohibited truckers from driving more than ten hours without taking eight hours off during*1218 **393 the day and had limited truckers' driving-eligible time to fifteen hours “on duty” without taking eight hours of off-duty time. While the final rule increased the minimum amount of off-duty time from eight to ten hours, and decreased permissible driving-eligible on-duty time from fifteen to fourteen hours, it increased the maximum permissible daily driving time from ten to eleven hours.
The agency had essentially two justifications for increasing maximum daily driving time. It said that the increase was justified by the decrease in overall daily driving-eligible “tour of duty” from fifteen to fourteen hours. 68 Fed.Reg. at 22,473. It also said that the increase in mandatory off-duty time from eight to ten hours justified the increase in daily driving time in light of the cost-benefit analysis it had conducted. Id. at 22,471.
We have our doubts about whether these two justifications are legally sufficient. The agency freely concedes that “studies show[ ] that performance begins to degrade after the 8th hour on duty and increases geometrically during the 10th and 11th hours” on duty. Id. Despite this finding, the agency cited absolutely no studies in support of its notion that the decrease in daily driving-eligible tour of duty from fifteen to fourteen hours will compensate for these conceded and documented ill effects from the increase.
The agency did refer generally to studies, but that generalized reference is of doubtful legal sufficiency. The agency in particular stated that it “relie [d] upon 12 studies to select a 10 consecutive houroff-duty [sic] period, a 14-hour tour of duty, and a maximum of 11 hours of driving” and noted that an annotated literature review of those studies is in the rulemaking docket. Id. at 22,473. But the agency never stated which particular studies in fact justify the increase, much less how they do so. Unlike the discussion in the rule, the agency's brief before this court does cite several studies with particularity; but those citations cannot save the rule. The expertise of the agency, not its lawyers, must be brought to bear on this issue in the first instance. See SEC v. Chenery, 318 U.S. 80, 87-88, 63 S.Ct. 454, 458, 87 L.Ed. 626 (1943).
Moreover, although the agency is correct that it decreased the maximum daily driving-eligible on-duty time, the agency also, as discussed above, increased the maximum weekly on-duty time for those drivers maximizing weekly driving time and who take advantage of the thirty-four-hour restart provision. Even assuming that the agency had adequately documented the beneficial effects from the decreased daily driving-eligible “tour of duty,” the effects from the increased weekly driving hours may offset any decrease in fatigue flowing from the fact that drivers have shorter over-all tours of duty. For these two reasons, it is unlikely that we would find the agency's first explanation legally sufficient.
The agency's second justification is also dubious. That explanation relies on the cost-benefit analysis it conducted. The analysis purports to show that the benefits from the rule outweigh its costs, given that the agency increased (as compared to the old HOS regulations) mandatory daily off-duty time from eight to ten hours. But this analysis assumes, dubiously, that time spent driving is equally fatiguing as time spent resting - that is, that a driver who drives for ten hours has the same risk of crashing as a driver who has been resting for ten hours, then begins to drive. 68 Fed.Reg. at 22,497. In other words, the model disregarded the effects of “time on task” because, the agency said, it did not have sufficient data on the magnitude of such effects. Id.
*1219 **394 This assumption makes the cost-benefit analysis of questionable value in justifying the increase in daily driving time. The exponential increase in crash risk that comes with driving greater numbers of hours, presumably caused by time-on-task effects, raises eyebrows about the agency's increase of daily driving time. Yet the agency excluded time-on-task effects from the cost-benefit analysis. That analysis, then, assumes away the exact effect that the agency attempted to use it to justify. The agency's reliance on the cost-benefit analysis to justify this increase is therefore circular, and the rationality of that explanation is correspondingly doubtful.
Quite apart from the circularity of the agency's explanation, moreover, the model's assumption that time-on-task effects are nil is implausible. Again, the agency admits that studies show that crash risk increases, in the agency's words, “geometrically,” id. at 22,471, after the eighth hour on duty, and the agency does not deny that this geometric risk increase results at least in substantial part from time-on-task effects. The mere fact that the magnitude of time-on-task effects is uncertain is no justification for disregarding the effect entirely. The agency, for example, could have extrapolated the time-on-task effects of driving longer hours using crash-risk data derived from drivers who drove for shorter periods of time. In light of this dubious assumption, the agency's cost-benefit analysis is questionable, and, as a consequence, so is its justification for increasing maximum driving time from ten to eleven hours.
2. Sleeper-Berth Exception
Our doubts extend as well to the agency's justification for retaining the sleeper-berth exception. The final rule, again, permits solo and team drivers to obtain the necessary ten hours of off-duty time by splitting their rest in two periods of time spent in sleeper berths, at least one of which is two hours long. 49 C.F.R. § 395.1(g) (2003). Petitioners argue persuasively that the agency's justification for retaining this exception was not rational in view of the conceded central premise of the HOS regulations, shared by the NPR and the final rule, that “[e]ach driver should have an opportunity for eight consecutive hours of uninterrupted sleep every day.” 68 Fed.Reg. at 22,469.
Despite that premise, the agency offered several justifications for nevertheless permitting drivers to obtain the required continuous period of rest in two chunks, all of which are quite weak. First, the agency cited two studies, Dingus et al., Impact of Sleeper Berth Usage on Driver Fatigue (2002); and Wylie et al., Commercial Motor Vehicle Driver Fatigue and Alertness Study (1996). 68 Fed.Reg. at 22,465. The agency cited the first study for the proposition that “[s]tudies on the sleeper berth issue have generally found that, for a number of reasons, sleeping in a berth, particularly when the vehicle is moving, is less restorative than sleeping in a bed.” Id. at 22,464. The agency also noted that team drivers used sleeper berths more effectively than solo drivers did. Id. at 22,465.
It is not clear how the Dingus study could rationally justify retaining the sleeper-berth exception. The conclusions that the agency draws from the study either do not support retaining the exception or have nothing to do with the problem of sleeper-berth rest. For one, the agency's citation to the study for the idea that sleeping in a berth is less restorative than sleeping in a bed supports eliminating, not retaining, the exception. Similarly, the agency's observation that solo drivers less effectively use sleeper berths than do team drivers also supports eliminating the exception for solo drivers, as the rule proposed*1220 **395 in the NPR would have. For another, a study comparing the effects of sleeper berth usage on team drivers and solo drivers says little about whether, as an absolute matter, retaining the exception is safe. Congress directed the FMCSA to ensure that “commercial motor vehicles are ... operated safely,”49 U.S.C. § 31136(a)(1), not to ensure that commercial motor vehicles driven by team drivers are safe relative to those driven by solo drivers. The Dingus study, in short, is weak justification for retaining the exception.
The agency's use of the Wiley study is also difficult to understand. The Wiley study did not even evaluate the problem of sleeper-berth sleep, much less split sleeper-berth sleep; the drivers in that study slept in hospitals and motels, not sleeper berths. The Wiley study thus is also weak evidence that retaining the sleeper-berth exception is appropriate.
The other justifications the agency used to justify the sleeper-berth exception are also unimpressive. The agency noted that “the proximity and convenience of the sleeper-berth reduces the importance of the length of the uninterrupted period.” Id. at 22,466. That says nothing about whether drivers should be able to split their rest in a sleeper berth; at most, it would justify reducing the required length of continuous rest if a driver spends the time in a berth, which the rule does not do. The agency also said that “[u]se of sleeper berths in long-haul operations is firmly entrenched in the practice, culture, and equipment of the trucking industry,” and that therefore to eliminate the sleeper-berth exception “would require more documented evidence of a safety problem than the agency now has.” Id. This is another nonsequitur. Eliminating the sleeper-berth exception would not prevent drivers from using sleeper berths. It would only prevent them from splitting their rest in them.
In sum, we have grave doubts about whether the agency's explanation for retaining the sleeper-berth exception would survive arbitrary-and-capricious review.
3. EOBRs
The agency's justification for not requiring EOBRs to monitor driver compliance is another aspect of the final HOS rule of questionable rationality. Recall that the agency had, in the NPR, proposed to require commercial motor vehicle companies to use EOBRs to monitor driver compliance. The final rule decided not to require EOBRs “at this time.” Id. at 22,488.
The agency gave three primary reasons for not doing so. First, the agency said that “neither the costs nor the benefits of EOBR systems are adequately known,” because there is no “significant market” for the devices, and because the amount of HOS-noncompliance that EOBRs would detect is unknown, as the agency “did not test the (very few) EOBRs currently available.” Id. Second, the agency said that because the NPR's proposed EOBR requirement was drafted as a performance, not a design, standard, enforcement officials “would have to waste time and effort mastering incompatible readout procedures created by different EOBR vendors,” and that the solution to this problem “at least for now, is to adopt a rule that does not require EOBRs.” Id. Finally, the agency stated that drivers see EOBRs as a “direct assault on their dignity and privacy,” and that the information recorded in EOBRs could be used in lawsuits against trucking companies. Id. at 22,489.
[4][5] This explanation is probably flawed. In section 408 of the Interstate Commerce Commission Termination Act of *1221 **396 1995, 49 U.S.C. § 31136 note, Congress directed the FMCSA to issue
an advance notice of proposed rulemaking dealing with a variety of fatigue-related issues pertaining to commercial motor vehicle safety (including 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 other appropriate regulatory and enforcement countermeasures for reducing fatigue-related incidents and increasing driver alertness).
(emphasis added). This directive, in our view, required the agency, at a minimum, to collect and analyze data on the costs and benefits of requiring EOBRs. “Deal[ ] with,” in the sense meant here, means “to take action with regard to someone or something.” Merriam Webster's Collegiate Dictionary 296 (10th ed.1995). Because the agency is required to ensure that “commercial motor vehicles are maintained, equipped, loaded, and operated safely,”49 U.S.C. § 31136(a)(1), and because the agency is also required to “consider the costs and benefits” of HOS regulations, id. § 31506(d), the “action” undoubtedly meant here means, at a minimum, fulfilling the agency's statutory duty to weigh the costs and safety benefits of requiring EOBRs. (Although the statutory requirement applies by its terms to “an advance notice of proposed rulemaking,” we think the implication plain that the final rule, necessarily derived from the NPR, is subject to the same requirement.) True, as the agency points out, this statutory provision does not require the agency to promulgate a rule that requires the use of EOBRs; but it does require the agency to evaluate seriously whether EOBRs should be required.
The agency's explanation in all likelihood does not conform to this statutory requirement. The agency said that the costs and benefits of EOBRs are unknown, because cost estimates “vary enormously.” But nothing prevented the agency from itself estimating the costs. The agency's job is to exercise its expertise to make tough choices about which of the competing estimates is most plausible, and to hazard a guess as to which is correct, even if the lack of a “significant market for such devices” means that the estimate will be imprecise. Regulators by nature work under conditions of serious uncertainty, and regulation would be at an end if uncertainty alone were an excuse to ignore a congressional command to “deal[ ] with” a particular regulatory issue.
A similar problem infects the agency's discussion of the benefits of EOBRs. The agency concedes that it “did not test the (very few) EOBRs currently available.” The agency offers no excuse for not doing so, and we can think of none that would suffice to fulfill the agency's duty to “deal[ ] with” the issue of EOBRs. Given the large incentives truckers have to falsify their logbooks, incentives confirmed by the agency's recognition in the NPR that noncompliance with HOS regulations is “widespread,”FN165 Fed.Reg. at 25,567, noncompliance with HOS regulations is no *1222 **397 doubt a serious regulatory problem, as the agency and its lawyers do not deny. It stands to reason that requiring EOBRs will have substantial benefits by inducing compliance with HOS regulations, and the agency concedes that compliance with HOS regulations has benefits. It is therefore facially plausible that EOBRs will have substantial safety benefits, and it was incumbent on the agency at least to attempt to analyze those benefits.
FN1. Driver noncompliance with federal regulation in this and related areas might be described as the stuff of legend. See, e.g., E. Green and C. Montgomery, “Six Days on the Road”:
The I.C.C. is a-checkin on down the line.Well, I'm a little overweight and my log books are way behind.But nothing bothers me tonight, I can dodge all the scales all right,Six days on the road, I'm gonna make it home tonight.
We cannot fathom, therefore, why the agency has not even taken the seemingly obvious step of testing existing EOBRs on the road, or why the agency has not attempted to estimate their benefits on imperfect empirical assumptions. (The agency, as we have discussed, apparently had no problem making estimates based on imperfect empirical assumptions when it estimated the costs of increasing driving time from ten to eleven hours.) The agency is no doubt correct that the “amount of cheating that could be deterred by EOBRs is unknown,”id. at 22,488, but this lack of knowledge is willful, given that the agency has not even attempted testing of the existing units. As petitioners stress, the agency has provided for voluntary use of EOBRs among truckers for over fifteen years, see49 C.F.R. § 395.15, so such testing is in all probability eminently possible. The agency has offered no good reason for treating this problem with such passivity.
Without such a cost-benefit analysis, accounting for benefits as well as costs, we do not understand how the remainder of the agency's explanation, all of which focuses solely on the costs of the rule, could pass muster in this court on petition for review. The second and third primary justifications for not requiring EOBRs - that implementing a performance, rather than a design, standard might be difficult, and that EOBRs might be unduly intrusive - might well be outweighed by the benefits of requiring EOBRs in the first place. We and the agency, however, have no idea whether they would, because the agency has not bothered to study what benefits EOBRs might have. This one-sided and passive regulatory approach in all likelihood does not comport with Congress's direction for the agency to “deal[ ] with” this issue in light of the statutorily mandated factors for which it has provided.
4. Thirty-Four-Hour Restart
One further problematic aspect of the agency's explanation for the rule concerns the thirty-four-hour restart provision. As discussed, this provision has the effect of increasing the maximum number of hours drivers can work each week. The agency justified the restart on the ground that after having thirty-four hours of rest, drivers have the opportunity to get seven-to-eight hours of continuous rest, and because the restart will help drivers keep a regular schedule. 68 Fed.Reg. at 22,479. For example, if a driver gets off work at 8 p.m. Saturday after starting work that day at 6 a.m. (a fourteen-hour day), the thirty-four-hour restart would allow him to restart work at 6 a.m. Monday, thus allowing him to start work at the same time of day he started on Saturday. Moreover, continued the agency, the restart provision will enable drivers the flexibility to take their sleep during the day, and enable them to drive at night, when the number of cars on the road is fewest. Id.
While the agency's explanation seems sound enough as far as it goes, it does not even acknowledge, much less justify, that the rule, as petitioners point out and as explained above, dramatically increases the maximum permissible hours drivers may work each week. That increase is likely an “important aspect of the problem.” *1223**398State Farm, 463 U.S. at 43, 103 S.Ct. at 2866. And the agency's failure to address it, accordingly, makes this aspect of the rule's rationality questionable.
III. Conclusion
For the reasons given above, we vacate the rule in its entirety and remand to the agency for proceedings consistent with this opinion.
C.A.D.C.,2004.
Public Citizen v. Federal Motor Carrier Safety Admin.
374 F.3d 1209, Fed. Carr. Cas. P 84,348, 362 U.S.App.D.C. 384, 150 Lab.Cas. P 34,866
END OF DOCUMENT
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Owner-Operator Independent Drivers Association, Inc. v Federal Motor Carrier Safety Administration
Owner-Operator Independent Drivers Ass'n, Inc. v. Federal Motor Carrier Safety Admin.
C.A.D.C.,2007.
United States Court of Appeals,District of Columbia Circuit.
OWNER-OPERATOR INDEPENDENT DRIVERS ASSOCIATION, INC., Petitioner
v.
FEDERAL MOTOR CARRIER SAFETY ADMINISTRATION, Respondent
International Brotherhood of Teamsters, AFL-CIO, et al., Intervenors.
Nos. 06-1035, 06-1078.
Argued Dec. 4, 2006.
Decided July 24, 2007.
Rehearing En Banc Denied Sept. 28, 2007.
Background: Public interest group and commercial motor vehicle operators association petitioned for review of final rule of Federal Motor Carrier Safety Administration (FMCSA), promulgated under Motor Carrier Act and Motor Carrier Safety Act, challenging hours of service (HOS) for long-haul truck drivers.
Holdings: The Court of Appeals, Garland, Circuit Judge, held that:
(1) FMCSA violated notice-and-comment requirements for methodology of operator-fatigue model;
(2) public interest group was prejudiced by lack of opportunity to comment on methodology;
(3) FMCSA failed to provide reasoned explanation for critical elements of methodology; but
(4) FMCSA satisfied congressional mandate to conduct rulemaking on loading and unloading operations;
(5) FMCSA did not ignore adverse health and safety effects of nonextendable 14-hour daily on-duty limit;
(6) notice of sleeper-berth requirements was sufficiently specific; and
(7) modification of sleeper-berth exception was supported by substantial evidence.
Petitions granted in part and denied in part.
West Headnotes
[1] Administrative Law and Procedure 15A 797
15A Administrative Law and Procedure
15AV Judicial Review of Administrative Decisions
15AV(E) Particular Questions, Review of
15Ak797 k. Legislative Questions; Rule-Making. Most Cited Cases
Under the Administrative Procedure Act (APA), a reviewing court must set aside an agency rule if it is arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law, or if it was promulgated without observance of procedure required by law. 5 U.S.C.A. § 706(2)(A, D).
[2] Administrative Law and Procedure 15A 394
15A Administrative Law and Procedure
15AIV Powers and Proceedings of Administrative Agencies, Officers and Agents
15AIV(C) Rules and Regulations
15Ak392 Proceedings for Adoption
15Ak394 k. Notice and Comment, Necessity. Most Cited Cases
Integral to requirements that an agency publish notice of proposed rulemaking and give interested persons an opportunity to participate by submitting comments is the agency's duty to identify and make available technical studies and data that it has employed in reaching the decisions to propose particular rules, as an agency commits serious procedural error when it fails to reveal portions of the technical basis for a proposed rule in time to allow for meaningful commentary. 5 U.S.C.A. § 553(b)(3), (c).
48A Automobiles
48AIII Public Service Vehicles
48AIII(C) Regulation of Operation and Management
48Ak116 k. Employees. Most Cited Cases
Federal Motor Carrier Safety Administration (FMCSA) failed to provide opportunity for comment on methodology of operator-fatigue model for calculating crash risks, used to determine benefits and costs of options considered for final rule revising hours of service (HOS) of long-haul truck drivers, in violation of notice-and-comment requirements for rulemaking under Administrative Procedure Act (APA), since methodology of deriving time-on-task multipliers in model did not remain constant from prior rulemaking but rather was entirely new, was formulated in response to important prior defect, and was integral part of model central to FMCSA's decision to adopt 11-hour, rather than 10-hour, daily driving limit and 34-hour restart provision. 5 U.S.C.A. § 553(b)(3), (c); 49 U.S.C.A. § 31136.
[4] Administrative Law and Procedure 15A 394
15A Administrative Law and Procedure
15AIV Powers and Proceedings of Administrative Agencies, Officers and Agents
15AIV(C) Rules and Regulations
15Ak392 Proceedings for Adoption
15Ak394 k. Notice and Comment, Necessity. Most Cited Cases
An agency's lack of notice and comment on methodology for rulemaking does not violate requirements of the Administrative Procedure Act (APA), if its methodology remains constant with that used in prior assessments and new data is merely used to check or confirm prior assessments. 5 U.S.C.A. § 553(b)(3), (c).
[5] Administrative Law and Procedure 15A 764.1
15A Administrative Law and Procedure
15AV Judicial Review of Administrative Decisions
15AV(D) Scope of Review in General
15Ak764 Harmless or Prejudicial Error
15Ak764.1 k. In General. Most Cited Cases
To show that an agency's error in failing to provide opportunity for comment on proposed rulemaking was prejudicial, a petitioner must indicate with reasonable specificity what portions of the documents it objects to and how it might have responded if given the opportunity, and must show that on remand it can mount a credible challenge and was thus prejudiced by the absence of an opportunity to do so before the agency. 5 U.S.C.A. § § 553(b)(3), (c), 706.
48A Automobiles
48AIII Public Service Vehicles
48AIII(C) Regulation of Operation and Management
48Ak116 k. Employees. Most Cited Cases
Public interest group petitioning for review of final rule of Federal Motor Carrier Safety Administration (FMCSA), revising hours of service (HOS) of long-haul truck drivers, was prejudiced by FMCSA's failure to provide opportunity for comment on methodology of operator-fatigue model for calculating crash risks, used to determine benefits and costs of 11-hour daily driving limit and 34-hour restart provision, in violation of notice-and-comment requirements for rulemaking under Administrative Procedure Act (APA), since petitioners would have mounted credible challenge to methodology had they been afforded opportunity. 5 U.S.C.A. § § 553(b)(3), (c), 706; 49 U.S.C.A. § 31136.
[7] Administrative Law and Procedure 15A 763
15A Administrative Law and Procedure
15AV Judicial Review of Administrative Decisions
15AV(D) Scope of Review in General
15Ak763 k. Arbitrary, Unreasonable or Capricious Action; Illegality. Most Cited Cases
To satisfy the arbitrary and capricious standard, under the Administrative Procedure Act (APA), an agency must articulate a satisfactory explanation for its action including a rational connection between the facts found and the choice made. 5 U.S.C.A. § 706(2)(A, D).
[8] Administrative Law and Procedure 15A 507
15A Administrative Law and Procedure
15AIV Powers and Proceedings of Administrative Agencies, Officers and Agents
15AIV(D) Hearings and Adjudications
15Ak507 k. Report or Opinion; Reasons for Decision. Most Cited Cases
An agency must cogently explain why it has exercised its discretion in a given manner, and that explanation must be sufficient to enable a reviewing court to conclude that the agency's action was the product of reasoned decisionmaking. 5 U.S.C.A. § 706(2)(A, D).
48A Automobiles
48AIII Public Service Vehicles
48AIII(C) Regulation of Operation and Management
48Ak116 k. Employees. Most Cited Cases
Federal Motor Carrier Safety Administration (FMCSA) failed to provide reasoned explanation for critical elements of methodology of operator-fatigue model for calculating crash risks, used to determine benefits and costs of 11-hour daily driving limit and 34-hour restart provision in final rule revising hours of service (HOS) of long-haul truck drivers, since model improperly minimized crash risk associated with 11th hour of driving, inconsistent with study of actual crash data underlying model, and model ignored cumulative fatigue from increased weekly driving and working hours allowed by 34-hour restart, independent of fatigue caused by insufficient sleep. 5 U.S.C.A. § 706(2)(A, D); 49 U.S.C.A. § 31136.
[10] Administrative Law and Procedure 15A 392.1
15A Administrative Law and Procedure
15AIV Powers and Proceedings of Administrative Agencies, Officers and Agents
15AIV(C) Rules and Regulations
15Ak392 Proceedings for Adoption
15Ak392.1 k. In General. Most Cited Cases
When an agency uses a computer model in rulemaking, it must explain the assumptions and methodology used in preparing the model. 5 U.S.C.A. § 553(b)(3), (c).
48A Automobiles
48AIII Public Service Vehicles
48AIII(C) Regulation of Operation and Management
48Ak127 k. Proceedings to Enforce or to Prevent Enforcement of Regulations. Most Cited Cases
Court of Appeals could not affirm merits of post-hoc explanation by agency counsel regarding averaging methodology used by Federal Motor Carrier Safety Administration (FMCSA), underlying operator-fatigue model used as basis for final rule revising hours of service (HOS) of long-haul truck drivers, since explanation was presented only at oral argument and in post-argument letter to court. 5 U.S.C.A. § 706(2)(A, D); 49 U.S.C.A. § 31136.
[12] Administrative Law and Procedure 15A 753
15A Administrative Law and Procedure
15AV Judicial Review of Administrative Decisions
15AV(D) Scope of Review in General
15Ak753 k. Theory and Grounds of Administrative Decision. Most Cited Cases
Court of Appeals may not supply a reasoned basis for an agency's action that the agency itself has not given. 5 U.S.C.A. § 706(2)(A, D).
[13] Administrative Law and Procedure 15A 763
15A Administrative Law and Procedure
15AV Judicial Review of Administrative Decisions
15AV(D) Scope of Review in General
15Ak763 k. Arbitrary, Unreasonable or Capricious Action; Illegality. Most Cited Cases
An agency acts arbitrarily if it ignores an issue that Congress directs it to address. 5 U.S.C.A. § 706(2)(A, D).
48A Automobiles
48AIIIPublic Service Vehicles
48AIII(C) Regulation of Operation and Management
48Ak116 k. Employees. Most Cited Cases
Federal Motor Carrier Safety Administration (FMCSA) satisfied congressional mandate to conduct rulemaking dealing with variety of fatigue-related issues related to commercial motor vehicle safety, including loading and unloading operations, since FMCSA's final rule expressly considered such issues, reasonably identified nonextendable 14-hour on-duty limit in response, explained that rule prevented abuse of forcing drivers to use off-duty hours as unpaid time while waiting to load or unload, and reviewed comments from drivers and industry associations. 5 U.S.C.A. § 706(2)(A, D); 49 U.S.C.A. § 31136.
48A Automobiles
48AIII Public Service Vehicles
48AIII(C) Regulation of Operation and Management
48Ak116 k. Employees. Most Cited Cases
Federal Motor Carrier Safety Administration (FMCSA) did not ignore adverse health and safety effects of making 14-hour daily on-duty limit nonextendable by use of breaks, including 2-hour break used to qualify for sleeper-berth exception to off-duty requirement, in final rule revising hours of service (HOS) of long-haul truck drivers, since FMCSA indicated that short naps and breaks were important for combating fatigue, acknowledged driver comments that nonextendable limit caused them to skip meals or naps, but concluded that such disadvantages were outweighed by survey data indicating that drivers had available time to take breaks during 14-hour tour, rationale indicating that limiting drivers to 14 hours kept most fatigued drivers off road, and rule promoting movement toward 24-hour clock, rather than putting driver on backward rotating schedule working 22-hour days. 49 U.S.C.A. § 31136; 5 U.S.C.A. § 706(2)(A, D).
[16] Administrative Law and Procedure 15A 395
15A Administrative Law and Procedure
15AIV Powers and Proceedings of Administrative Agencies, Officers and Agents
15AIV(C) Rules and Regulations
15Ak392 Proceedings for Adoption
15Ak395 k. Notice and Comment, Sufficiency. Most Cited Cases
In order to comply with the notice requirement of the Administrative Procedure Act (APA), an agency's final rule need only be a logical outgrowth of its notice.
[17] Administrative Law and Procedure 15A 395
15A Administrative Law and Procedure
15AIV Powers and Proceedings of Administrative Agencies, Officers and Agents
15AIV(C) Rules and Regulations
15Ak392 Proceedings for Adoption
15Ak395 k. Notice and Comment, Sufficiency. Most Cited Cases
The logical outgrowth test, for determining whether an agency's final rule was a logical outgrowth of its notice, satisfies notice requirement under Administrative Procedure Act (APA) if interested parties should have anticipated the agency's final course in light of the initial notice. 49 U.S.C.A. § 31136; 5 U.S.C.A. § 553(b)(3).
[18] Administrative Law and Procedure 15A 395
15A Administrative Law and Procedure
15AIV Powers and Proceedings of Administrative Agencies, Officers and Agents
15AIV(C) Rules and Regulations
15Ak392 Proceedings for Adoption
15Ak395 k. Notice and Comment, Sufficiency. Most Cited Cases
Agency notice of rulemaking must describe the range of alternatives being considered with reasonable specificity; otherwise, interested parties will not know what to comment on. 5 U.S.C.A. § 553(b)(3), (c).
48A Automobiles
48AIII Public Service Vehicles
48AIII(C) Regulation of Operation and Management
48Ak116 k. Employees. Most Cited Cases
Notice by Federal Motor Carrier Safety Administration (FMCSA), concerning modification of sleeper-berth requirements for hours of service (HOS) of long-haul truck drivers, was sufficiently specific, since sleeper-berth minimum hours in final rule were reasonably foreseeable due to notice outlining specific options for sleeper-berth exception, one of which forecast terms that ultimately appeared in final rule. 5 U.S.C.A. § 553(b)(3), (c); 49 U.S.C.A. § 31136.
[20] Administrative Law and Procedure 15A 763
15A Administrative Law and Procedure
15AV Judicial Review of Administrative Decisions
15AV(D) Scope of Review in General
15Ak763 k. Arbitrary, Unreasonable or Capricious Action; Illegality. Most Cited Cases
An agency's action is arbitrary and capricious if the agency has entirely failed to consider an important aspect of the problem. 5 U.S.C.A. § 706(2)(A, D).
48A Automobiles
48AIII Public Service Vehicles
48AIII(C) Regulation of Operation and Management
48Ak116 k. Employees. Most Cited Cases
Federal Motor Carrier Safety Administration (FMCSA) did not fail to consider important aspect of modifying sleeper-berth hour limitations, in final rule revising hours of service (HOS) for long-haul truck drivers, since FMCSA acknowledged comments that burden of modified hours would fall primarily on team drivers, but concluded this marginal loss of productivity and flexibility was justified by reduction in fatigue and fatigue-related accidents. 5 U.S.C.A. § 706(2)(A, D); 49 U.S.C.A. § 31136.
48A Automobiles
48AIIIPublic Service Vehicles
48AIII(C) Regulation of Operation and Management
48Ak127 k. Proceedings to Enforce or to Prevent Enforcement of Regulations. Most Cited Cases
Court of Appeals would not consider claim by commercial motor vehicle operators association that final rule of Federal Motor Carrier Safety Administration (FMCSA), modifying sleeper-berth hour limitations for long-haul truck drivers, caused particular problems for team drivers carrying hazardous materials, since association failed to raise issue during rulemaking comment period.
48A Automobiles
48AIIIPublic Service Vehicles
48AIII(C) Regulation of Operation and Management
48Ak116 k. Employees. Most Cited Cases
Finding by Federal Motor Carrier Safety Administration (FMCSA) that long-haul truck drivers needed 7 to 8 consecutive hours of sleep each day, as basis for revising sleeper-berth hour limitations in final rule, was supported by substantial evidence that drivers who split sleep into two shorter periods were more likely to be involved in fatigue-related accidents, that FMCSA did not conflate split sleep obtained in two or more periods with fragmented sleep interrupted every few minutes, and that FMCSA based sleeper-berth hours on reduction of accidents, not on drivers' health. 49 U.S.C.A. § 31136.
*192 On Petitions for Review of a Final Rule of the Federal Motor Carrier Safety Administration.
Paul D. Cullen, Jr. argued the cause for petitioner Owner-Operator Independent Drivers Association, Inc. With him on the briefs was Paul D. Cullen, Sr. Daniel E. Cohen entered an appearance.
Bonnie I. Robin-Vergeer argued the cause for petitioners Public Citizen, Inc., et al. With her on the briefs were Brian Wolfman and Scott L. Nelson. James A. McCall entered an appearance.
Kenneth E. Siegel was on the briefs for intervenors California Trucking Association, et al.
Michele M. Fields was on the brief for amicus curiae Insurance Institute for Highway Safety in support of petitioners.
Matthew M. Collette, Attorney, U.S. Department of Justice, argued the cause for respondents. With him on the brief were Peter D. Keisler, Assistant Attorney General, Robert S. Greenspan, Attorney, and *193 Paul M. Geier, Assistant General Counsel, Federal Motor Carrier Safety Administration.
Robert Digges, Jr., Erika Z. Jones, Adam C. Sloane, David M. Gossett, John M. Cutler, Jr., Nicholas J. DiMichael, and C. Fairley Spillman were on the brief of intervenors American Trucking Associations, Inc., et al. in support of respondent. Karyn A. Booth entered an appearance.
Before: GINSBURG, Chief Judge, and HENDERSON and GARLAND, Circuit Judges.
Opinion for the Court filed by Circuit Judge GARLAND.
GARLAND, Circuit Judge:
In order to ensure highway safety and protect driver health, Congress has charged the Federal Motor Carrier Safety Administration with regulating the hours of commercial motor vehicle operators. In 2005, the agency promulgated a final rule revising its existing regulations in a number of respects. Two groups-one led by Public Citizen and the other by the Owner-Operator Independent Drivers Association-now seek review of the portion of the rule that applies to long-haul truck drivers.
We reject the challenges raised by the Owner-Operators, but grant the petition filed by Public Citizen. We conclude 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 truck drivers may drive and work. We also find that the agency failed to provide an explanation for critical elements of that methodology.
I
This is the second time this court has considered a challenge to the Federal Motor Carrier Safety Administration's attempt to modify its hours-of-service regulations. Much of the relevant background is set forth in our opinion in Public Citizen v. FMCSA, 374 F.3d 1209 (D.C.Cir.2004), which vacated a prior iteration of the rule now before us. We first review that background and then describe the development of the current rule.
A
The federal government has regulated the hours of service (HOS) of commercial motor vehicle operators since the late 1930s, when the Interstate Commerce Commission (ICC) promulgated the first HOS regulations under the authority of the Motor Carrier Act of 1935. See49 U.S.C. § 31502(b)(1) (authorizing the prescription of “maximum hours of service” for motor carrier employees). Jurisdiction over HOS regulations passed from the ICC to the Federal Highway Administration (FHWA) in 1995, and then to the newly created Federal Motor 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 Safety Act of 1984, which, as amended, directs the Secretary of Transportation to “prescribe regulations on commercial motor vehicle safety,”49 U.S.C. § 31136(a), and provides that “[a]t 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 *194 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 benefits” of its safety regulations, id.§ 31502(d); see id. § 31136(c)(2)(A).
Between 1940 and 2003, the HOS regulations applicable to long-haul truck drivers FN1 remained largely unchanged. Five aspects of the pre-2003 regulations are relevant to the petitions before us:
FN1. FMCSA distinguishes long-haul truck drivers from short-haul drivers. The latter generally “return to their work-reporting location every night” and operate “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 daily on-duty limit. Even if they had not reached the 10-hour driving limit, drivers could not drive after they had been on duty for 15 hours. Id. § 395.3(a)(2). Drivers could, however, “take periodic 'off-duty' breaks during the day, thus extending the fifteen-hour driving-eligible 'on duty' period beyond fifteen hours.” Public Citizen, 374 F.3d at 1212.
* The daily off-duty requirement. In order to restart the 10-hour driving limit and 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. Drivers could accumulate their required 8 hours of off-duty time in two separate periods in a sleeper berth as long as each was at least 2 hours long. Id. § 395.1(g).
* The weekly on-duty limit. Drivers were not allowed to drive after having been on duty for 60 hours in the past 7 days. Id. § 395.3(b).FN2
FN2. Drivers employed by carriers that operated every day of the week were subject to a slightly different limit, which barred them from driving after having been on duty for 70 hours in the past 8 days. See49 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.
All of these requirements were “limits on the time drivers could work and still drive; so far as the rules went, drivers who worked more than the daily or weekly limits could still work as long as they did not drive.” Public Citizen, 374 F.3d at 1212.
In the ICC Termination Act of 1995, Congress directed the FHWA to revise these regulations by conducting a rulemaking “dealing with a variety of fatigue-related 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*195 vehicles, fitness for duty, and other appropriate regulatory and enforcement countermeasures for reducing fatigue-related incidents and increasing driver alertness.
Id. FHWA issued an advance notice of proposed rulemaking (ANPRM) in 1996. See61 Fed.Reg. 57,252 (Nov. 5, 1996). Jurisdiction over the HOS regulations then passed to FMCSA, which issued a notice of proposed rulemaking (NPRM) in 2000. See 65 Fed.Reg. 25,540 (May 2, 2000) (“2000 NPRM”). The 2000 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 are much more alert and have better reaction times when they are on regular, twenty-four-hour circadian schedules.” Public Citizen, 374 F.3d at 1213; see also 2000 NPRM, 65 Fed.Reg. at 25,554. The pre-2003 regulations allowed drivers to alternate between 10-hour driving shifts and 8-hour off-duty periods, creating the potential for a “backward rotating” schedule in which they started each “day” six hours earlier than the one before. Second, the agency concluded that “[e]ach 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 negate the effect of accumulated week-long sleep deprivation and restore alertness.” Id. at 25,555. The old regulations contained no weekly off-duty requirement. Finally, FMCSA found that “performance degrades and crash risk increases markedly after the 12th hour of any duty time during a work shift.” Id. at 25,556. The pre-2003 regulations permitted only 10 hours of driving per shift, but allowed an operator to drive anytime up to his or her 15th hour on duty, and 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 during each shift. Id. at 25,568 tbl.5, 25,581. The 2000 NPRM also proposed increasing the 8-hour daily off-duty requirement to 10 consecutive hours and mandating a new weekly off-duty requirement of between 32 and 56 consecutive hours, with the required length depending on the amount of time needed to “include two sleep periods between midnight and 6:00 a.m.”Id.Finally, the NPRM proposed eliminating the sleeper-berth exception for solo drivers. Team 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.
FMCSA issued a final rule in April 2003. SeeHours of Service of Drivers, 68 Fed.Reg. 22,456 (Apr. 28, 2003) (“2003 Rule”). As we explained in Public Citizen, the 2003 Rule “was still a significant revision *196 to the old [pre-2003] rules, but differed markedly from the [2000 NPRM].”374 F.3d at 1214. The Rule modified three of the five aspects of the pre-2003 regulations discussed above, and added a sixth:
* 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 during their shifts. See id.
* The daily off-duty requirement. Like the 2000 NPRM, the 2003 Rule increased the daily off-duty requirement from 8 hours to 10 hours. See id.
* The sleeper-berth exception. The 2003 Rule abandoned the 2000 NPRM's proposed changes to the sleeper-berth exception. Instead, it preserved the same kind of exception that existed under the pre-2003 regulations: a driver using a 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.
* The 34-hour restart provision. The 2003 Rule allowed drivers to restart their weekly on-duty clocks whenever they took 34 consecutive hours off duty. See id. This was a significant shift from the 2000 NPRM: instead of requiring a 32- to 56-hour off-duty period each week (a change that would have decreased average hours worked), the 2003 Rule permitted drivers to restart their 60-hour limit anytime they took 34 hours off duty. This change allowed drivers to work 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 drivers, a factor the agency must consider under its organic statute.” Id. at 1216; see49 U.S.C. § 31136(a)(4). “Because the agency ha[d] wholly failed to comply with this specific statutory requirement,” we found “this single objection from petitioners ... sufficient to establish an arbitrary-and-capricious decision requiring vacatur of the rule.” Public Citizen, 374 F.3d at 1216.
This disposition made it unnecessary for us to “enter final judgment” on Public 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 freely concedes that 'studies show[ ] that performance begins to degrade after the 8th hour on duty and [the degradation] increases geometrically during the 10th and 11th hours.' ” Id. at 1218 (quoting 2003 Rule, 68 Fed.Reg. at 22,471). But “[d]espite this finding, the agency cited absolutely no studies in support of its notion that the decrease in [the] daily driving-eligible tour of duty from fifteen to fourteen hours will compensate for [the] conceded and documented ill effects from the increase” in driving time. Id.
*197 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, that a driver who drives for ten hours has the same risk of crashing as a driver who has been resting for ten hours [and] then begins to drive.” Id.“In other words, the model disregarded the effects of 'time on task,' ” and thus understated the risks of driving 11 hours. Id.
Third, “[o]ur doubts extend[ed] as well to the agency's justification for retaining the sleeper-berth exception,” which permitted “solo and team drivers to obtain the 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 every day.' ” Id. (quoting 2003 Rule, 68 Fed.Reg. at 22,469).
Finally, we regarded as “problematic” the fact that FMCSA's justification for the 34-hour restart provision “[did] not even acknowledge, much less justify, that the rule ... dramatically increases the maximum permissible hours drivers may work each week.” Id. at 1222. That increase, we said, “is likely an important aspect of the problem[,][a]nd the agency's failure to address it ... makes this aspect of the [2003] rule's rationality questionable.” Id. at 1222-23 (citation and internal quotation marks omitted).
B
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 Transportation Extension Act of 2004, signed by the President on September 30, 2004, provided that the 2003 Rule “shall be in effect until the earlier of-(1) the effective date of a new final rule addressing the issues raised by [Public Citizen]; or (2) September 30, 2005.” Pub.L. No. 108-310, § 7(f), 118 Stat. 1144, 1154 (2004).
FMCSA issued a new NPRM in January 2005. See70 Fed.Reg. 3339 (Jan. 24, 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. SeeHours of Service of Drivers, 70 Fed.Reg. 49,978 (Aug. 25, 2005) (“2005 Rule”). With a single exception, the 2005 Rule is identical to the 2003 Rule. The 2005 Rule preserves the 11-hour daily driving limit, the 14-hour daily on-duty limit, the 10-hour daily off-duty requirement, the 60-hour weekly on-duty limit, and the 34-hour restart provision. See id. at 49,980. The only difference between the two rules is the sleeper-berth exception. The 2003 Rule-like the pre-2003 regulations-permitted drivers using a sleeper berth to split their daily off-duty requirement into 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.
Although the 2005 Rule was largely unchanged from the 2003 Rule, FMCSA said *198 that it had considered and addressed the concerns identified by this court in Public Citizen. As to driver health, the agency explained that it had conducted an extensive literature review to determine the effect of the rule on a variety of health issues, and concluded that the 2005 Rule would either have no effect or yield a net improvement over the pre-2003 regulations. See id. at 49,991-92.
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 the split-sleeper-berth provision of the pre-2003 regulations were more likely to be involved in fatal accidents. Id. at 49,994 (internal quotation marks omitted). Second, FMCSA contended that the longer hours permitted by the 34-hour restart provision would not be detrimental, pointing to evidence that “a recovery period of 34 consecutive hours is sufficient for recovery from moderate cumulative fatigue” due to several days of limited sleep. Id. at 49,995.
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 two provisions of the rule that this court had criticized in Public Citizen-the increase (over the pre-2003 regulations) in the daily driving limit from 10 hours to 11 hours, and the addition of the 34-hour restart provision-outweighed the safety benefits that rescission would bring. See 2005 Rule, 70 Fed.Reg. at 49,981. As explained below, a key component of the cost-benefit analysis was an operator-fatigue model that the agency used to analyze crash risks under different HOS 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 provision that modifies the sleeper-berth exception. A group led by the California Trucking Association intervened in support of OOIDA. We consider Public Citizen's challenge in Part II and OOIDA's challenge in Part III.
II
[1] We have jurisdiction to review the 2005 Rule pursuant to 28 U.S.C. § 2342(3)(A). Our standard of review is governed by 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 required by law,”id. § 706(2)(D).
Public Citizen challenges the 2005 Rule, and specifically its 11-hour daily driving limit and 34-hour restart provision, on four grounds. The petitioner contends that: (1) FMCSA violated the APA's requirements for notice-and-comment rulemaking by failing to disclose in time for comment the methodology of a model that was central to the agency's justification for *199 the rule; (2) when the methodology finally 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 first two arguments.
A
Public Citizen's first contention is that FMCSA violated the APA's requirements for notice-and-comment rulemaking by failing to disclose the methodology of the agency's operator-fatigue model, a crash-risk analysis that was a central component of the justification for the 2005 Rule.
[2] 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 we have explained, “[i]ntegral” to these requirements “is the agency's duty 'to identify and make available technical studies and data that it has employed in reaching the decisions to propose particular rules.... An agency commits serious procedural error when it fails to reveal portions of the technical basis for a proposed rule in time to allow for meaningful commentary.' ” Solite Corp. v. EPA, 952 F.2d 473, 484 (D.C.Cir.1991) (quoting Connecticut Light & Power Co. v. 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 Serv. Orgs. v. Bd. of Governors of the Fed. Reserve Sys., 745 F.2d 677, 684 (D.C.Cir.1984))).
2. In order to assess the costs and benefits of alternative changes to the HOS rules, FMCSA created a carrier-operations model for estimating the costs to industry of each option, as well as an operator-fatigue model for calculating the crash risks under each option. (The benefits of avoiding crashes were then 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 industry into broad segments, collected information on operations within these segments, and then created a model of carrier operations....
The model was ... used to simulate carrier operations under different conditions and HOS rules.... [W]eighted changes in productivity from this procedure were then used to estimate the cost increases imposed on the industry by each option....
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*200 crashes to yield estimates of total benefits.
2005 RIA at ES-2 (J.A. 1629).
Many of the details of the models were unchanged from those used in the cost-benefit analysis of the 2003 Rule. See FMCSA, Regulatory Impact Analysis and Small Business Analysis for Hours of Service Options (2002) (J.A. 787) (“2003 RIA”). In several important respects, however, FMCSA modified the operator-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 sleep patterns, and thus assumed that time spent driving was no more fatiguing than time spent resting. Id. We found the decision to ignore time-on-task effects puzzling, because “the agency admits that studies show that crash risk increases, in [FMCSA's] words, 'geometrically,' after the eighth hour on duty, and the agency does not deny that this geometric risk increase results at least in substantial part from time-on-task effects.” Id. (quoting 2003 Rule, 68 Fed.Reg. at 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 Fatigue in Fatal Crashes Involving Medium/Heavy Trucks from the 1991-2002 TIFA Files (2005) (J.A. 1712) (“TIFA Study”). The database includes over 50,000 truck-involved accidents over the years 1991-2002. 2005 RIA at 44 (J.A. 1664). The TIFA Study generated what FMCSA referred to as the “fatigue-related crash risk” for each successive hour of driving. Id. at 59 (J.A. 1679). For each driving hour, the study calculated the percentage of all fatal truck crashes in which it was 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 FMCSA observed, the “risk of ... a fatigue-related crash in the 11th hour of driving or later is notably higher than in the 10th hour of driving.” 2005 Rule, 70 Fed.Reg. at 49,997.
But in the RIA that it released with the 2005 Rule, FMCSA did not use the crash risk figures contained in the TIFA Study. Instead, the agency plotted the aggregate figure for Hour 13 and beyond at Hour 17, and then “fit [ ] a cubic 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 particular, the percentage difference between the figures for the 10th and 11th hours was substantially smaller than in the TIFA Study. Finally, FMCSA divided each of the hourly figures from the curve by the average risk for Hours 1 through 11, creating a risk increase “relative to average driving hours.” Id. at 61 (J.A. 1681). The resulting “TOT [time-on-task] *201 crash risk multipliers” were then used in the operator-fatigue model to determine the safety impact of different HOS rules. 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 rather than 34-hour restart provision, and without a sleeper-berth exception. Finally, Option 4 was the same as Option 3, but with a 44-hour restart provision. See 2005 Rule, 70 Fed.Reg. at 50,045; 2005 RIA at ES-1 (J.A. 1628). FMCSA concluded that Option 2-the 2005 Rule-was the most cost-effective of the options. See 2005 Rule, 70 Fed.Reg. at 50,046; 2005 RIA at ES-7 (J.A. 1634).
In addition to examining these four options, FMCSA considered a variant of 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.
[3] 3. Public Citizen objects to FMCSA's reliance on the operator-fatigue model because FMCSA did not disclose (inter alia) the methodology by which it would derive time-on-task multipliers until it published the 2005 Rule-too late for interested parties to comment. Because the time-on-task multipliers were an integral part of the operator-fatigue model, and because the output of that model was central to FMCSA's decision to adopt the 2005 Rule (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 constitutes a violation of the APA's notice-and-comment requirements. See Chamber of Commerce, 443 F.3d at 902 (finding a violation where “extra-record materials suppl[ied] the basic assumptions used by the [agency] to establish the range of costs [of] complying with [a rule's] conditions”).
[4] FMCSA contends that “petitioners can hardly express surprise at the use of the ... model for assessing safety benefits, since that model 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 supplements information in the rulemaking record ... without changing methodology”). But FMCSA's methodology did not remain constant. The operator-fatigue model may have employed an “update” of the methodology disclosed in the 2003 RIA, but the nature of the update-the derivation of the time-on-task multipliers, and even the use of time-on-task multipliers-was entirely new. Moreover, the addition of the time-on-task element to the model was not a minor 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 *202 in Public Citizen. See374 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 put interested parties on notice “that the agency would have to adjust the model to account for [time-on-task] effects.” FMCSA Br. 45. This, too, misses the point. Although interested parties may have known that FMCSA would incorporate time-on-task effects into its crash-risk model, they had no way of knowing that the agency would calculate the impact of time on task in the way that it did. In particular, there was no way for Public Citizen to foresee the following elements 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 Evaluation Analytical Support 51 (2000) (“2000 TIFA Study”). The same is true of the final TIFA Study, which was not released in time for comment. See TIFA Study at 12 (J.A. 1727).
* The agency drew its curve by plotting all of the data regarding fatigue-related crashes at Hour 13 and beyond at Hour 17. The TIFA studies, by contrast, aggregated all such data at “13+” hours. See (Final) TIFA Study at 12 (J.A. 1727); 2000 TIFA Study at 51.
* After deriving hourly fatigue-related crash-risk estimates using its curve, FMCSA divided each of those figures by the average risk for the first 11 hours. The TIFA studies did not do so. See (Final) TIFA Study at 12 (J.A. 1727); 2000 TIFA Study at 51.
* The operator-fatigue model did not take into account cumulative fatigue caused by the increased weekly driving and working hours permitted under the 34-hour restart provision.
In light of these undisclosed elements, we cannot say that the agency's operator-fatigue model was “made public in the proceeding and exposed to refutation” as required by the APA. Air Transp. Ass'n of Am., 169 F.3d at 7 (citation, internal quotation mark, and emphasis omitted).
[5] 4. Finally, before we may vacate an agency action for failure to disclose supporting documents (like the methodology of the operator-fatigue model) during the notice-and-comment period, we must take “due account ... of the rule of prejudicial error.” 5 U.S.C. § 706. “To show that error was prejudicial, a [petitioner] must indicate with reasonable specificity what portions of the documents it objects to and how it might have responded if given the opportunity.” Gerber v. Norton, 294 F.3d 173, 182 (D.C.Cir.2002) (internal quotation marks omitted). Moreover, a petitioner must “ 'show that on remand [it] can mount a credible challenge ... and [was] thus prejudiced by the absence of an opportunity to do so before' ” the agency. Id. at 184 (quoting Utility Solid Waste Activities Group v. EPA, 236 F.3d 749, 755 (D.C.Cir.2001)).
[6] We have no difficulty in concluding that the agency's failure to disclose the methodology of the operator-fatigue model in time for comment was prejudicial. The arguments that the petitioner has raised before this court amply demonstrate that *203 it would have mounted a “credible challenge” had it been afforded an opportunity to do so. See Chamber of Commerce, 443 F.3d at 904 (finding a sufficient showing of prejudice where the petitioner's objections had “creat[ed] enough” uncertainty as to whether its “comments would have had some effect if they had been considered” (citation and internal quotation marks omitted)). We discuss those arguments in the following subpart. Indeed, as we explain below, Public Citizen's critique of the model persuades us not only that it was prejudiced by FMCSA's failure to provide an opportunity for comment, but also that FMCSA failed to provide an adequate explanation for its decision to adopt the 11-hour daily driving limit and the 34-hour restart provision.
B
[7][8] Public Citizen charges that when FMCSA finally disclosed its time-on-task methodology in the RIA that accompanied the 2005 Rule, it failed to provide a reasoned explanation for a number of the methodology's critical elements. To satisfy the APA's “arbitrary and capricious” standard, an agency must “articulate a satisfactory explanation for its action including a 'rational connection between the facts found and the choice made.' ” Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983) (quoting Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 168, 83 S.Ct. 239, 9 L.Ed.2d 207 (1962)). The “agency must cogently explain why it has exercised its discretion in a given manner,”id. at 48, 103 S.Ct. 2856, and that explanation must be “sufficient to enable us to conclude that the [agency's action] was the product of reasoned decisionmaking,”id. at 52, 103 S.Ct. 2856.
[9] 1. Public Citizen notes that the TIFA data, upon which FMCSA's time-on-task multipliers were ultimately based, indicates that “the risk of fatal-crash involvement more than doubled from the 10th hour to the 11th.” Public Citizen Br. 48-49 (citing 2005 RIA at 45 (J.A. 1665)). The actual time-on-task multiplier for the eleventh hour used in FMCSA's model, however, was “only 30% higher than the ... multiplier for the 10th hour.” Id. at 49 (citing 2005 RIA at 61 (J.A. 1681)). Public Citizen contends that the two steps FMCSA used to transform the TIFA data into the time-on-task multipliers were unexplained, and that they had the effect of improperly minimizing the crash risk associated with the 11th hour of driving.
First, as explained above, instead of using the crash risk figures for each hour of driving that the TIFA Study had calculated directly from the actual crash data, FMCSA derived a cubic curve of crash risk as a function of time on task. To derive the curve, FMCSA first plotted the TIFA figures for Hours 1 through 12, and then used an aggregate measure for Hour 13 and beyond. It did not, however, plot the 13+ figure at Hour 13, but rather at Hour 17. See 2005 RIA at 59 (J.A. 1679). As shown in the accompanying graph, the curve that fit those 13 points yielded a crash risk at Hour 11 that was substantially below the figure that the TIFA Study had calculated directly from the actual crash data:
*204
2005 RIA at 59 (J.A. 1679). Moreover, as Public Citizen points out, if the agency had plotted the figure for 13+ hours at Hour 13 rather than Hour 17, the resulting curve would have produced a significantly higher estimate of the risk of a fatigue-related crash at Hour 11-a figure close to that which the TIFA Study had calculated directly. See Public Citizen Br. 49-50, A-3 (displaying alternative curve).
[10][11] FMCSA's decision to plot the data point for Hour 13 and beyond at Hour 17-instead of at Hour 13 (or some other point)-was entirely unexplained in the RIA and final rule. This complete lack of explanation for an important step in the agency's analysis was arbitrary and capricious. “When an agency uses a computer model, it must 'explain the assumptions and methodology used in preparing the model.' ” U.S. Air Tour Ass'n v. FAA, 298 F.3d 997, 1008 (D.C.Cir.2002) (quoting Small Refiner Lead Phase-Down Task Force v. EPA, 705 F.2d 506, 535 (D.C.Cir.1983)). Although the agency's brief defends the use of a cubic curve on the ground that the margin of error in the underlying TIFA data was relatively large,FN3 this again misses the point: the issue is not whether a curve should have been used, but why the agency chose to draw the curve by plotting the Hour 13+ data at Hour 17. On that point, the brief is entirely silent.FN4
FN3. The Federal Register notice announcing the 2005 Rule stated that the “TIFA data must be treated with caution,” because the number of fatigue-related crashes in the database at the longer hours was small and because the 2003 Rule (not yet in effect when the data was collected) had changed the regulatory environment. 2005 Rule, 70 Fed.Reg. at 49,997. Nonetheless, the agency determined that the TIFA data “represent[s] the only recently-published data available for considering” time-on-task effects, and chose to rely on it as the “prudent” and conservative course. Id. at 50,052.
FN4. FMCSA's counsel did attempt to explain the derivation of the Hour 17 figure at oral argument and in a post-argument letter to the court. Counsel represented that “the agency averaged the numbers concerning fatigue-related crashes after 12 hours,” and that the average number of hours driven at the time of the crash for all crashes after 12 hours was approximately 17. FMCSA Rule 28(j) Letter, Dec. 12, 2006; see Oral Arg. Recording at 44:15. But counsel also conceded that FMCSA neither explained this calculation in the RIA nor put the data on which it was based in the record. See FMCSA Rule 28(j) Letter, Dec. 12, 2006. Whatever the merits of the agency's averaging methodology, we cannot affirm on the basis of a post-hoc explanation by agency counsel. See SEC v. Chenery Corp., 332 U.S. 194, 196, 67 S.Ct. 1575, 91 L.Ed. 1995 (1947); Public Citizen, 374 F.3d at 1218.
*205 Second, after deriving an estimate of crash risk for each hour of driving using a cubic curve, FMCSA divided those figures by the average risk for Hours 1 through 11, creating an estimate of risk “relative to average driving hours.” 2005 RIA at 61 (J.A. 1681); see id. at 46 (J.A. 1666). Public Citizen objects that FMCSA gave no explanation for its decision to divide each hourly risk figure by the average for the first 11 hours, and points out that the effect of this step was “to diminish the increase[d] [risk of driving in Hour 11] by dividing the heightened risk at the 11th hour by an average that includes that heightened 11th-hour risk.” Public Citizen Br. 50. We express no view on the validity of FMCSA's statistical method, but we agree with Public Citizen that-once again-the agency offered no explanation for its decision during the rulemaking and failed even to respond to the petitioner's argument in its brief. Although we apply a deferential standard of review to an agency's use of a statistical model, we cannot uphold a rule based on such a model when an important aspect of its methodology was wholly unexplained. See U.S. Air Tour Ass'n, 298 F.3d at 1008 (holding that, when a model's methodology is challenged, the agency must “provide a complete analytic defense” (quoting Small Refiner Lead Phase-Down Task Force, 705 F.2d at 535) (internal quotation mark omitted)).FN5
FN5. FMCSA conducted a sensitivity analysis that concluded that an 11-hour daily driving limit remained more cost-effective than a 10-hour limit, even if the agency assumed a higher risk of fatigue-related crash in the 11th hour than it employed in its operator-fatigue model. See 2005 Rule, 70 Fed.Reg. at 50,046-47; 2005 RIA at ES-7 to -8 (J.A. 1634-35). FMCSA does not argue, however, that this sensitivity assumption was high enough to offset the two errors asserted by Public Citizen.
2. Public Citizen further contends that the RIA's operator-fatigue model “also ignored cumulative fatigue from increased weekly driving and working hours allowed by the 34-hour restart.” Public Citizen Br. 51. In Public Citizen, we said-with respect to the identical restart provision of the 2003 Rule-that this increase in weekly hours was likely “ 'an important aspect of the problem,' ” and that the “agency's failure to address” it made “the rule's rationality questionable.” 374 F.3d at 1222-23 (quoting State Farm, 463 U.S. at 43, 103 S.Ct. 2856). Indeed, in the 2000 NPRM, FMCSA expressed concern about evidence that many drivers were exceeding the weekly limit of 60 hours in 7 days. See 2000 NPRM, 65 Fed.Reg. at 25,558. In particular, the agency was troubled by a study showing, inter alia, that “[t]wenty-five percent of drivers reported working at least 75 hours in the last 7 days.” Id. Yet, as FMCSA acknowledges, the 34-hour restart provision of the 2005 Rule could “allow another 17 hours of driving time ... in a 7-day work week, compared to the limit of 60 hours of driving time without the [restart] provision.” 2005 Rule, 70 Fed.Reg. at 49,984. In light of these statements by the agency, Public Citizen argues that the operator-fatigue model should have taken into account the increased crash risk caused by “cumulative fatigue” associated with the increased driving and working hours that it would permit.
FMCSA's counsel responds with a single conclusory sentence denying that the agency “ignored cumulative fatigue” and citing three pages of the RIA. See FMCSA Br. 45 (citing 2005 RIA at 41, 44, C-20 (J.A. 1661, 1664, 1709)). The cited pages, however, address a different kind of “cumulative fatigue”-the “sleep deficit[ ]” that *206 “accumulates with successive sleep-deprived days.” 2005 RIA at 41 (J.A. 1661). Public Citizen's argument, which it pressed in the rulemaking, is that longer hours spent driving over the course of a few days have a fatigue-inducing effect that is independent of that caused by insufficient sleep. There is no indication that the operator-fatigue model considered this kind of “cumulative fatigue,” and FMCSA offers no explanation for the omission.
Of course, it could be that “cumulative fatigue” due to longer weekly service hours will not constitute a significant problem because, for example, the number of such hours will be minimal. Indeed, in the final rule, FMCSA declared that it “believes the average driver is not, and cannot realistically, drive and work the longer weekly hours, on a regular basis, as described by some of the commenters.” 2005 Rule, 70 Fed.Reg. at 50,022. But whatever the “average driver” will do on a “regular basis,” it is clear that FMCSA contemplates that many drivers will work those longer hours-as those hours are the basis for the agency's conclusion that the 34-hour restart provision will have economic benefits. See id. at 50,049; 2005 RIA at ES-3 to -4, 68-69 (J.A. 1630-31, 1688-89). FMCSA concedes as much. See 2005 RIA at 18 (J.A. 1654) (“[M]any drivers work and drive longer hours than the averages.”); id. at 67 (J.A. 1687) (“[M]ore than half of for-hire operations, and somewhat less than half of private fleet operations, are intensive enough to press the HOS limits, and should therefore be affected by those limits.”).
[12] In any event, FMCSA gave 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. This court may “not attempt itself to make up for such deficiencies: We may not supply a reasoned basis for the agency's action that the agency itself has not given.” State Farm, 463 U.S. at 43, 103 S.Ct. 2856 (internal quotation marks omitted); see SEC v. Chenery Corp., 332 U.S. 194, 196, 67 S.Ct. 1575, 91 L.Ed. 1995 (1947). Accordingly, the agency's failure of explanation renders the restart provision arbitrary and capricious. Cf. U.S. Air Tour Ass'n, 298 F.3d at 1019 (“[I]n the absence of any reasonable justification for excluding non-tour aircraft from its noise model, we must conclude that this aspect of the FAA's methodology is arbitrary and capricious....”).
C
For the foregoing reasons, we conclude both that FMCSA failed to provide an opportunity for comment on the methodology of its operator-fatigue model, and that it failed to provide an explanation for the elements of that methodology that Public Citizen disputes. Because the model is the basis for the cost-benefit analysis that led FMCSA to adopt the two provisions of the 2005 Rule that Public Citizen challenges-the increase in the daily driving limit from 10 to 11 hours, and the 34-hour restart provision-we must vacate those provisions. And because those are the only provisions of the 2005 Rule that Public Citizen challenges, we have no occasion to address the balance of its arguments.
III
We turn next to OOIDA's petition, which challenges three aspects of the 2005 Rule. First, OOIDA contends that FMCSA failed to deal with loading and unloading issues, as required by Congress. Second, OOIDA asserts that the 14-hour daily on-duty limit is arbitrary and capricious, because FMCSA failed to consider its negative*207 effects on driver health and safety. Finally, the petitioner objects to the modification of the sleeper-berth exception on several grounds. The following subparts address each of these challenges.
A
OOIDA's first contention is that the 2005 Rule is arbitrary, capricious, or otherwise contrary to law because “FMCSA did not deal with the effects of loading and unloading operations on driver fatigue as required by Congress.” OOIDA Br. 23. This argument refers to Congress' 1995 instruction to the agency to conduct a rulemaking and issue a rule “dealing with a variety of fatigue-related issues pertaining to commercial motor vehicle ... safety (including ... loading and unloading operations ...).” 49 U.S.C. § 31136 note. Loading and unloading operations contribute to driver fatigue primarily by prolonging drivers' hours. Because most drivers are paid by the mile or by the load rather than by the hour, it costs a shipper or receiver nothing to keep drivers waiting to load or unload their vehicles. The resulting delays associated with loading and unloading can reduce the time available for sleep and require drivers to stay awake longer in order to finish their trips.
[13][14] An agency acts arbitrarily if it ignores an issue that Congress directs it to address. See Public Citizen, 374 F.3d at 1216. In this case, however, the record confirms that FMCSA complied with the congressional mandate by considering the implications of loading and unloading operations for the problem of driver fatigue. In fact, FMCSA adopted the 14-hour daily on-duty limit, and eliminated the provision in the pre-2003 regulations that extended the daily limit when the driver took breaks, in part because of those concerns. As the agency explained:
Under the pre-2003 rules, drivers were allowed a 15-cumulative-hour duty period but could extend their maximum duty period indefinitely by taking off-duty time during their workday. This perpetuated the problem of excessive waiting time for pick up and delivery of freight at shippers and receivers, because the drivers were expected to place themselves in off-duty status while waiting.
2005 Rule, 70 Fed.Reg. at 49,986. Under the 2005 Rule, drivers can no longer extend their driving-eligible period by taking off-duty breaks while waiting to load or unload. FMCSA concluded that, as a consequence, the 2005 Rule “prevents shippers, receivers, and companies from abusing the off-duty hours and forcing drivers to use them as unpaid time.” Id. at 50,013.
In support of this conclusion, the agency reviewed comments from drivers and industry associations regarding how the limit was working in practice. (It was instituted as part of the 2003 Rule.) FMCSA explained that “[t]he general consensus among drivers was that their workday, on average, is shorter under the new rules. They no longer work 20-hour days due to the 14-hour consecutive requirement.” Id.; see also id. (“The [National Industrial Transportation League] commented that ... operations at loading docks have been reconfigured to decrease dwell time and to expedite loading and unloading in order to minimize driver on-duty time not devoted to driving ....” (citation and internal quotation marks omitted)).
We conclude that, by expressly considering fatigue-related issues pertaining to loading and unloading operations, and by reasonably identifying the nonextendable 14-hour limit as responsive to those issues, the 2005 Rule satisfied Congress' mandate to “deal with” this problem. Although *208 OOIDA may have preferred that FMCSA deal with the problem in a different manner, the statute does not mandate that the agency reach any particular substantive result.
B
[15] OOIDA's next contention is that FMCSA acted arbitrarily and capriciously by ignoring adverse health and safety effects of its decision to make the 14-hour daily on-duty limit nonextendable through the use of breaks. Specifically, OOIDA contends that this provision “discourages drivers from taking short rest breaks and naps,” because they can no longer exclude such breaks from their daily on-duty limit. OOIDA Br. 43. In support of this argument, OOIDA cites a study of its members indicating that 60% of drivers “reported foregoing short breaks, naps, and meals under the 2003 Rule”-which was the first rule to make the daily on-duty limit nonextendable. Id. at 44-45 (citing Comments of OOIDA 6 (Mar. 10, 2005), Docket No. FMCSA-2004-19608-1790 (J.A. 1193)).
FMCSA did not, however, “fail[ ] to consider” this aspect of the problem. State Farm, 463 U.S. at 43, 103 S.Ct. 2856. To the contrary, the agency agreed that short naps and breaks “are an important tool in combating fatigue.” 2005 Rule, 70 Fed.Reg. at 50,030. It also acknowledged driver comments that “the consecutive duty time requirement caused them to skip meals or naps.” Id. at 50,013. FMCSA concluded, however, that several other considerations minimized or outweighed this disadvantage.
First, a FMCSA survey of operations under the 2003 Rule indicated that the “vast majority of drivers are not using the full 14-consecutive hour duty tour. The data suggest that drivers represented in the survey have time available within the current 14-hour duty tour to take breaks.” Id. Second, FMCSA found that the nonextendable 14-hour daily on-duty limit has significant offsetting benefits. Most important, the agency noted that there is a consensus that “longer wakeful hours result in alertness and performance degradation,” and that by barring drivers 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 one of the central tenets” of the rulemaking because it “puts the driver on a backward rotating schedule by two hours per day.” OOIDA Br. 46. (A driver who alternates between 8-hour sleeper-berth shifts and 14-hour on-duty periods will work 22-hour days.)
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 and when needed.” 2005 Rule, 70 Fed.Reg. at 50,030. And while it is true that a 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 that the 2005 Rule “promotes movement toward a 24-hour clock.” Id. at 50,014. The possibility that some *209 drivers will have 22-hour schedules does not contradict this.
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
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-duty requirement-which otherwise consists of 10 consecutive hours-into two periods. One of the periods must consist of at least 8 continuous hours in a sleeper berth; the other must be at least 2 hours long and can be spent in a sleeper berth or elsewhere. This reflects a change from the 2003 Rule, which 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 NPRM did not give interested parties adequate notice that the agency was considering such a modification of the 2003 Rule's sleeper-berth provision.
[16][17] In order to comply with the APA's notice requirement, “[a]n agency's final rule need only be a 'logical outgrowth' of its notice.”Covad Commc'ns Co. v. FCC, 450 F.3d 528, 548 (D.C.Cir.2006). The “logical outgrowth” test is satisfied if interested parties “ '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 L.Ed.2d 54 (2007).
[18] OOIDA asserts that the 2005 NPRM “was too broad and unfocused to provide adequate notice[,] thus precluding meaningful comment.” OOIDA Br. 30. It is certainly true that a notice can be “too general to be adequate.” Small Refiner Lead Phase-Down Task Force, 705 F.2d at 549. “Agency notice must describe the range of alternatives being considered with 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 the sleeper berth exception” and thus “really proposed nothing.” OOIDA Br. 32. But as explained below, there was no “needle in a haystack” quality to the NPRM.
[19] The 2005 NPRM set out the 2003 Rule “as the 'proposal' on which public comments [were] sought.” 70 Fed.Reg. at 3339. FMCSA then asked “the public to comment on what changes to that rule, if any, [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 use to count toward the minimum 10-hours off duty, (2) allowing one continuous sleeper-berth period of less than 10 *210 hours, such as 8 hours, to substitute for the otherwise minimum 10 hours, (3) eliminating split-sleeper-berth periods or establishing a minimum time for one of the two “splits,” such as 5 hours, 8 hours, or some other appropriate level, (4) revising the manner in which sleeper-berth periods affect the calculation of the 14-consecutive-hour period, and (5) 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 periods (or “splits”) could hardly have been a surprise to anyone. As noted in Part I.A above, our opinion in Public Citizen had sharply criticized the 2003 Rule for containing an exception directly at odds with “the conceded central premise of the HOS regulations, ... that '[e]ach driver should have an opportunity for eight consecutive hours of uninterrupted sleep every day.' ” 374 F.3d at 1219 (quoting 2003 Rule, 68 Fed.Reg. at 22,469).
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 one [sleeper-berth] period is [required to be] 7 or more hours in length, ... would a second sleeper-berth period still be required?”). We conclude that, in light of the options discussed in the NPRM, the modification of the sleeper-berth exception in the final rule was “reasonably foreseeable” and hence satisfied the logical outgrowth test. Long Island Care at Home, 127 S.Ct. at 2351.FN7
FN7. OOIDA further notes that FMCSA received a large volume of unsolicited 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 outgrowth test. Long Island Care at Home, 127 S.Ct. at 2351 (emphasis added); see Small Refiner Lead Phase-Down Task Force, 705 F.2d at 548-49.
[20] 2. OOIDA's second contention is that FMCSA “failed to consider important issues” related to the modification of the sleeper-berth exception. OOIDA Br. 40. As we noted above, an agency's action is “arbitrary and capricious if the agency has ... entirely failed to consider an important aspect 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 that the 8-hour requirement will make it impossible for team drivers to synchronize their on-and off-duty schedules so that when one driver reaches the end of his or her shift, that driver's partner is eligible to begin driving. The net result is “[l]ess total available driving time” and therefore “fewer miles” and “less money” for team drivers. OOIDA Br. 42.
[21] Contrary to OOIDA's claim, FMCSA did not “fail[ ] to consider” this aspect of the problem. In fact, FMCSA acknowledged comments from trucking *211 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 the reduction in fatigue and fatigue-related accidents. See id. at 50,031. OOIDA may disagree with this policy balance, but it does not reflect a failure to consider relevant factors.
[22] Second, OOIDA contends that the modified rule causes particular problems for those team drivers who carry hazardous materials. OOIDA concedes, however, that these issues were not raised with 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 Agencies v. EPA, 489 F.3d 1221, 1230-31 (D.C.Cir.2007).
FN8. While conceding that these issues were not raised, OOIDA maintains that this was because of inadequate notice that the final sleeper-berth exception might include an 8-hour break requirement. We have rejected that argument in Part III.C.1.
[23] 3. Finally, intervenor California Trucking Association (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 into two shorter periods are more likely to be involved in fatigue-related accidents. A review of the record, however, reveals ample support for FMCSA's view.FN9 The record also contradicts CTA's assertion that FMCSA conflated “split sleep”-sleep obtained in two or more periods-with “fragmented sleep”-sleep interrupted every few minutes. See 2005 Rule, 70 Fed.Reg. at 50,026.
FN9. See, e.g., National Transp. Safety Bd., Factors that Affect Fatigue in Heavy 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 that “[t]he split-sleeper berth exception is also problematic from a driver health standpoint.” Id. at 50,027. But FMCSA based the modification of the sleeper-berth exception not on concerns about driver health but rather on its well-supported finding that the 8-hour requirement would reduce fatigue-related accidents. See id. at 50,026-31. Therefore, even if the agency's passing mention of health effects were unsupported, the error was harmless because the context 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 of the challenges to the sleeper-berth exception.
*212 IV
For the foregoing reasons, we deny OOIDA's petition. At the same time, we grant Public Citizen's petition and vacate those portions of the 2005 Rule that increase the daily driving limit from 10 to 11 hours, and that permit an off-duty period of 34 hours to restart the weekly on-duty limits.
So ordered.
C.A.D.C.,2007.
Owner-Operator Independent Drivers Ass'n, Inc. v. Federal Motor Carrier Safety Admin.
494 F.3d 188, Fed. Carr. Cas. P 84,504, 154 Lab.Cas. P 35,325, 12 Wage & Hour Cas.2d (BNA) 1284
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