Owner-Operator Independent Drivers v. Fmcsa

• Decision Date: 24 July 2007
• Docket Number: No. 06-1035.,No. 06-1078.,06-1035.,06-1078.
• Citation: 494 F.3d 188
• Parties: OWNER-OPERATOR INDEPENDENT DRIVERS ASSOCIATION, INC., Petitioner v. FEDERAL MOTOR CARRIER SAFETY ADMINISTRATION, Respondent International Brotherhood of Teamsters, AFL-CIO, et al., Intervenors.
• Court: U.S. Court of Appeals — District of Columbia Circuit

494 F.3d 188

OWNER-OPERATOR INDEPENDENT DRIVERS ASSOCIATION, INC., Petitioner v. FEDERAL MOTOR CARRIER SAFETY ADMINISTRATION, Respondent

International Brotherhood of Teamsters, AFL-CIO, et al., Intervenors.

No. 06-1035.

No. 06-1078.

United States Court of Appeals, District of Columbia Circuit.

Argued December 4, 2006.

Decided July 24, 2007.

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 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. See 49 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 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 drivers¹ remained largely unchanged. Five aspects of the pre-2003 regulations are relevant to the petitions before us:

• 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).²

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 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. See 61 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...