Federal court throws out 11 hour driving rule for truckers

Thanks to alert reader David Warren for calling this to my attention.

A federal appeals court in Washington, DC, on Tuesday threw out a the 2005 rule allow long-haul truckers to drive for up to 11 hours straight. For 60 years, truckers could drive for 10 hours at a time. Since the 2000 election, the Federal Motor Carrier Safety Administration has been trying to change the rule to allow trucking companies to require truckers to put in another hour of driving time each day and dramatically increase total weekly work time.  However, once again demonstrating the importance of an independent judiciary, the U.S. Court of Appeals for the District of Columbia Circuit has now agreed that the FMCSA did not adequately explain its reasoning for adding the extra hour.

Here are some excerpts from the court’s order which frequently refers back to its earlier ruling against an earlier iteration of the same rule:

First, we expressed “very real concerns” about the increase in the daily driving limit from 10 to 11 hours. . . .  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.’” . . . . 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.

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.”  . . . 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.

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.” . . . . 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.’”

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.” . . .  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.”

. . .
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.” . . . FMCSA issued a new NPRM in January 2005. . . .  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.

In August 2005, FMCSA promulgated the rule now under review. . . . . 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 onduty limit, the 10-hour daily off-duty requirement, the 60-hour weekly on-duty limit, and the 34-hour restart provision. . . . . The only difference between the two rules is the sleeper-berth exception.

Although the 2005 Rule was largely unchanged from the 2003 Rule, FMCSA said 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. . . .

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.. . .

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 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 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. . . .

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. . . .

. . .

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.”

In its 2005 analysis, FMCSA modified its 2003 operatorfatigue 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).  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.” . . .

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. 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] crash risk multipliers” were then used in the operator-fatigue model to determine the safety impact of different HOS rules.

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.” . . .

[detailed discussion of methodology and what was disclosed when by FMCSA]

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 it would have mounted a “credible challenge” had it been afforded an opportunity to do so.

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.

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.” . . . . 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.” . . .  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. . . .

Moreover, as Public Citizen pointsout, 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. . . .  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.’”

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.” . . . . 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 further contends that the RIA’s operatorfatigue model “also ignored cumulative fatigue from increased weekly driving and working hours allowed by the 34-hour restart.”  . . . 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.” . . .

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.” . . . . 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.

. . . .

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.

The court goes on to find that other rules regarding loading and unloading time and sleeper berth time were not made in a manner that was "arbitrary and capricious" and therefore were not invalidated under the Administrative Procedure Act.

In reading the court’s criticism of the FMCSA’s use of formulas and graphs to disguise the increased safety hazard between the 10th and 11th hour of driving, I am reminded of the old adage that "figures don’t lie but liars figure."

The Shigley Law Firm  represents plaintiffs in wrongful death and catastrophic injury cases statewide in Georgia, and in other states subject to the multijurisdictional practice and pro hac vice rules in each state. Ken Shigley was designated as a "SuperLawyer" in Atlanta Magazine and one of the "Legal Elite" in Georgia Trend Magazine. He is a Certified Civil Trial Advocate of the National Board of Trial Advocacy, Chair of the Southeastern Motor Carrier Liability Institute and former chair of the Georgia Insurance Law Institute. He particularly focuses on cases arising from truck wrecks and accidents (tractor trailers truck wrecks, semi truck wrecks,18 wheeler truck wrecks, big rig truck wrecks, log truck wrecks, dump truck wrecks.