The Federal Motor Carrier Safety Administration may be headed back to the drawing board once again in its effort to adopt hours-of-service regulations that will survive judicial scrutiny. Citing mostly procedural shortcomings, the U.S. Court of Appeals for the District of Columbia Circuit on July 24 invalidated two significant pieces of the agency’s rules – the increase of the daily driving limit to 11 hours, and the 34-hour restart option for drivers’ weekly on-duty limits.

A three-judge panel also rejected the lawsuit filed by the Owner-Operator Independent Drivers Association. With the support of several trucking organizations, OOIDA had objected to FMCSA’s changes in how drivers could use sleeper berths for satisfying mandatory rest requirements. On its own, OOIDA also contended that FMCSA failed to deal with loading and unloading issues as required by Congress in 1995, and it challenged the 14-hour window for driving.

Not showing its work
In the court’s eyes, FMCSA’s failings, at least at this stage, are mainly in how the agency put the rules together, not in what the rules require. FMCSA “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,” said Judge Merrick Garland, who wrote the opinion for the three-judge panel.

By failing to disclose changes in its statistical model for analyzing risk until the final rule – too late for public comment – FMCSA committed a grave error in the court’s view. If that wasn’t damning enough, the agency failed to explain critical elements of the methodology, the court said.

“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,” Garland wrote.

The court’s decision tracks closely with the focus and tone of the Dec. 4 oral argument in which Garland grilled the government’s attorney on methodology (See “Journal,” January 2007). Finding the lawyer’s answers unsatisfactory, Garland declared, “You are not a statistician. This is a debate among statisticians.” Chief Judge Douglas Ginsburg stressed the need for FMCSA to disclose its methodology. “Any number of times we have said ‘show your work’,” Ginsburg told the government’s attorney.

The details of the statistical debate are complex, but Public Citizen and its allies essentially argued that FMCSA’s regulatory impact analysis for the final rule – without an opportunity for comment – presented data on the crash risk involved in driving beyond 10 hours in such a way as to mask a jump in that risk during the 11th hour of driving. Public Citizen’s argument on the 34-hour restart is simpler: FMCSA just didn’t explain its failure to account for cumulative fatigue due to increased driving. The appeals court agreed on both counts.

A sleeper issue
As for OOIDA’s complaints, the court effectively tackled two at once by declaring that the 14-hour limit was how FMCSA reasonably chose to deal with the fatigue-related issues involved in loading and unloading. “Although 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,” Garland wrote.

The court also rejected OOIDA’s challenge to FMCSA’s changes in the use of sleeper berths to split rest. Under FMCSA’s 2005 rule change, rest taken in the sleeper could be counted only if it lasted at least eight consecutive hours. In addition, drivers would have to take a two-hour break during the following workday.

Among other things, OOIDA argued that the agency did not provide adequate notice of its intent to make such a significant change, but the court pointed to language in the notice of proposed rulemaking declaring that FMCSA was considering something very close to what it finally adopted.

The California Trucking Association, one of several groups that intervened in the case on the sleeper berth issue, challenged the eight-hour requirement on the ground that the record does not support FMCSA’s finding that drivers need seven to eight consecutive hours of sleep each day. For example, CTA contended 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,” the court said.

Deja vu all over again
This is the second time the appeals court has thrown out some or all of FMCSA’s hours-of-service regulations that kicked in on Jan. 4, 2004 – the first major rewrite of the rules since they were adopted in the late 1930s. In the first attempt – referred by the court as the 2003 rule since that was when it was published – FMCSA adopted a 14-hour window for driving to replace the previous “on the clock, off the clock” structure that it believed promoted fatigue. And the agency added two more hours to the minimum rest period.