Judges probe FMCSA’s numbers in hours rule

An attorney representing the Federal Motor Carrier Safety on Dec. 4, found himself defending the statistical models the agency relied on for guidance in its redrafting of the hours-of-service regulations. Matthew Colette, a Justice Department lawyer, also faced questions from a three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit regarding its analysis of the impact of the rules on the industry and public.

FMCSA is fighting separate lawsuits filed by the Owner-Operator Independent Drivers Association and safety advocacy group Public Citizen over the August 2005 revisions to the rules that took effect in January 2004. The D.C. circuit appeals court in July 2004 had invalidated those rules. Today, a three-judge panel – different from the one that ruled in 2004 – heard arguments from OOIDA, Public Citizen and FMCSA.

Paul Cullen Jr., an attorney representing OOIDA, urged the court to send FMCSA “back to the drawing board” to reconsider the rule in three areas:

  • The decision not to allow breaks during the work day to stop the 14-hour clock. OOIDA has found that delivery schedules force many drivers to complete their work days without taking a break, Cullen told the judges. That’s the type of impact on driver health the court expressed worries about in 2004, Cullen said. In a member survey, OOIDA found that 60 percent said they avoid taking breaks during the 14-hour window.
  • The increased minimum consecutive hours in sleepers to satisfy mandatory rest. “The sleeper berth issue has caused the most concern,” especially for team drivers, Cullen told the court. He also faulted FMCSA’s procedural conduct in adopting the change even though the notice of proposed rulemaking didn’t specifically propose it. “We do not believe FMCSA gave proper notice,” Cullen said. “Either they would have had to do a two-step rulemaking – and they had plenty of time to do that – or they would have had to better define the problem they were seeking to address.”
  • The effect of loading and unloading on driver fatigue, particularly extensive waiting times that force drivers to push harder once they can get on the road.
  • Public Citizen argued that FMCSA’s statistical models in the “virtually identical” new rule gave short shrift to the effects of “time on task” – in other words, time spent working and driving – even though the court in 2004 criticized the agency for precisely this approach. “The model only cares about sleep,” said Bonnie Robin-Vergeer, an attorney for Public Citizen. “It’s irrelevant how much work you are doing.”

    But time on task matters, Robin-Vergeer said. “We have extensive evidence about the sharp increase in crash risk after eight hours of driving.”

    “The 34-hour restart is the most pernicious provision in the new rule,” Robin-Vergeer told the appeals court. The rule allows substantially more hours driving in a week, contributing to higher cumulative fatigue and less off-duty time, Public Citizen charges. Various surveys have shown that a significant number of drivers are pushing the limits by taking only the 34-hour minimum, she said.

    Public Citizen also faults FMCSA for simultaneously downplaying in the preamble to the rule the likelihood that drivers would use the 34-hour restart to maximize driving hours and playing up in the regulatory impact analysis (RIA) accompanying the rule the productivity gains due to the restart.

    FMCSA responds

    Colette defended FMCSA’s position that the science shows that “length of wakefulness is a bigger factor in fatigue than time on task” and disagreed with Public Citizen that there is an inconsistency between the preamble and the RIA. FMCSA used the same estimates and assumptions in analyzing both crash risk and productivity, he said.

    The government attorney also stood by FMCSA’s analysis of the 34-hour restart and how drivers are using it in practice. “They are not necessarily using it to drive a massive number of hours,” Colette told the three-judge panel. “Rather, we believe they are using it to spend more time at home.” In any case, the number of hours driving per week is not as significant as reducing fatigue on a daily basis, he said.

    Judges on the panel seemed less interested in how the rule has worked in practice than in how FMCSA justified the rule from the standpoint of safety and economic impact.

    Judge Merrick Garland, for example, questioned Colette on the methodology of FMCSA’s analysis of how increased consecutive hours of driving affected crash risk. Unsatisfied with Colette’s responses, Garland chided the government attorney. “You’re not a statistician. This is a debate among statisticians.”

    Colette stood by FMCSA. “Where we are statistically is within the realm of reasonableness.” Garland responded, however, that the analysis must not only be reasonable but also fairly transparent, noting that the appeals court has declared numerous times that the court can’t evaluate a model if the agency doesn’t expose it in the notice of proposed rulemaking.

    Chief Judge Douglas Ginsburg raised similar concerns, noting that the RIA doesn’t break down the components of the regulatory impact it projects. He asked, “How do the petitioners know it’s a sound number?” It’s difficult for parties to respond to FMCSA’s projections if the agency doesn’t disclose how the agency arrived at them. “Any number of times we have said ‘show your work.'”

    The appeals court panel is expected to issue its ruling within the next two or three months.