In a stinging rebuke, an appeals court rejected a change to regulations limiting the daily and weekly number of hours that truckers can work without rest breaks. Although the court based its decision on the agency's failure to consider a statutorily mandated factor, it also identified weaknesses in several arguments commonly raised to block regulation, repeatedly calling the arguments "troubling." The suit was brought by Public Citizen, which calls truck driving "one of America's most hazardous occupations." Public Citizen notes that almost 700 truckers die in crashes every year, and those crashes put all other drivers at risk. About the Rule The rejected rule, which was issued in April 2003 by the Federal Motor Carrier Safety Administration, differed significantly from the version in the agency's Notice of Proposed Rulemaking (NPR) three years earlier:

• The final rule increased the maximum total daily driving from ten to eleven hours and dropped the NPR's requirement of a mandatory two-hour break during the day.
• The NPR, citing research about circadian rhythm cycles, would have required a 24-hour daily cycle. The explanation in the final rule admitted the 24-hour cycle would be "ideal from a scientific viewpoint" but stressed that an "inflexible" across-the-board requirement would unduly disrupt the trucking industry. The final rule mandated a 24-hour cycle only for drivers who took the maximum off-duty time (ten hours) and worked the maximum number of driving hours (fourteen). Those who maximized driving hours and minimized off-duty hours (ten hours), by contrast, were allowed to work on a 21-hour cycle.
• The NPR would have mandated a "weekend" of 32 to 56 hours, including two night-time periods, in order to prevent drivers from working five consecutive night shifts and to allow drivers to compensate for sleep deficits during "circadian-optimal times." The final rule mandated only a 34-hour "restart" phase, that would allow drivers to drive another seven- or eight-day work week after one 34-hour off-duty block. The restart provision would have actually increased the number of hours truckers could drive each week above the cap from the old existing rules. As the court noted, the old rules had set absolute caps of 60 hours for a seven-day week, or 70 hours for eight, whereas trucking companies could game the new rules and force truckers to work 77 hours in a seven-day period.
• The NPR would have reduced the "sleeper-berth exception" of the old rules. Under existing rules, drivers could break their required eight hours of consecutive rest into two separate periods totaling eight hours if they spent the rest period in the trucks' sleeper berths. The NPR would have closed this loop-hole for solo drivers but retained it, in modified form, for team drivers. The final rule rejected the NPR's closure of the sleeper-berth exception, calling the NPR's approach "inflexible" because the use of sleeper berths is "firmly entrenched in the practice, culture, and equipment of the trucking industry." FMCSA also argued that there was no evidence that the sleeper-berth exception posed a "safety hazard" and rejected existing studies as "inconclusive."
• The NPR would have required electronic on-board recorders to monitor compliance with the rule. The agency rejected EOBRs in the final rule, citing insufficient evidence of the costs and benefits of EOBRs.

About the Decision The court found that one reason was sufficient to vacate the rule: "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." The court nonetheless took the unusual step of outlining, "for a sense of completeness," a number of other problems in the rulemaking that it repeatedly called "troubling." Failing to Consider Drivers' Health Testing the hours of service rule for a rational connection between the rule and the factual basis for it, the court rejected the rule as 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 statutory mandate. Although 49 U.S.C. § 31506(d) requires FMCSA to "consider the costs and benefits" of rule changes, the law demands more of FMCSA for health and safety issues: (a) Minimum safety standards.... At a minimum, the [hours of service] regulations shall ensure that -- (1) commercial [trucks] are maintained, equipped, loaded, and operated safely; (2) the responsibilities imposed on [truckers] do not impair their ability to operate the vehicles safely; (3) the physical condition of [truckers] is adequate to enable them to operate the vehicles safely; and (4) the operation of commercial [trucks] does not have a deleterious effect on the physical condition of the [drivers]. Id. § 31136 (emphasis added). The court rebuked the agency for failing to demonstrate any point in the rulemaking record in which "it considered the statutorily mandated factor of drivers' health in the slightest." Rejecting the agency's sole evidence of considering drivers' health -- a point at which it had considered the effect of driver health on vehicle safety -- the court admonished the agency that driver health and vehicle safety may occasionally overlap but are nonetheless separate considerations. "It is one thing to consider whether an overworked driver is likely to drive less safely and therefore cause accidents," explained the court. "Whether overwork and sleep deprivation have deleterious effects on the physical health of the driver is quite another." Other 'Troubling' Factors The court also identified four specific parts of the rulemaking that it found particularly "troubling": (1) the decision to increase driving time from ten to eleven hours, (2) the maintenance of the sleeper-berth exception, (3) the rejection of EOBRs, and (4) the replacement of the NPR's "weekend" period with a 34-hour "restart." Several of these decisions simply defied the factual basis of the evidence in the record. Some of them embodied larger problems that have recurred throughout recent anti-regulatory rhetoric beyond the hours-of-service case itself.   Cost-Benefit Analysis and Economics The agency's economistic rationales repeatedly come under attack in the court's opinion. FMCSA cited its cost-benefit analysis as a justification for the decision to increase driving time from ten to eleven hours, arguing that the simultaneous increase in mandatory daily off-duty time (from eight to ten hours) worked with the increase in maximum daily driving time (from ten to eleven hours) to result in net benefits. The economics, however, failed to consider the very human limitations on the practical value of those calculations: [T]his 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.... 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. By assuming away the fatiguing effects of time on the job, despite its own admission that the risk of crashing increases "geometrically" after the eighth hour on duty, the agency rigged its economics to justify an industry-favored alternative. When it zeroed out the effects of driving time because of insufficient data, FMCSA replicated a favorite habit of leading proponents of cost-benefit analysis in regulatory decisions: treating unquantified effects as though they had zero value. These zeroed effects tend, incidentally, to be effects that could result in conclusions other than those in industry interests. Another prominent example of such zeroing is an oft-cited study by Robert Hahn, co-director of the AEI-Brookings Joint Center for Regulatory Studies, that zeroed out all unquantified benefits of regulations in order to argue that half of all major rules passed in a 15-year period failed net benefits testing. Hahn's practice of zeroing out these benefits (even some quantified, monetized benefits, for which Hahn decided simply to substitute a zero) was recently revealed by a law professor who discovered other unsupported assumptions in major anti-regulatory economics studies. FMCSA also attempted to evade entirely its obligation to consider the use of EOBRs. The court noted that the agency had failed even to test the use of the on-board recorders, despite the agency's acknowledgment that noncompliance with the current system of paper logs is "widespread," because the costs and benefits of EOBRs are unknown. The rigging here is even more obvious, because FMCSA could have tested EOBR use and based its estimates on that study. Further, common sense demands the conclusion that EOBR use could have significant benefits: as the court reasoned, EOBR use will induce compliance with the hours of service regulations, and compliance will have substantial health and safety benefits.   Uncertainty "Uncertainty" is an important term in anti-regulatory thought. In scientific terms, it can refer to the probability of an event (statistical uncertainty) or to an event with an unknown probability (true uncertainty). In either sense, uncertainty is a technical aspect of any scientific information. In everyday discourse, uncertainty is the opposite of certainty; we use the term to refer to lingering questions about which we lack sufficient facts to state an answer with firm conviction. In anti-regulatory rhetoric, the single word is often used to toggle back and forth between both the scientific and the quotidian meanings, the effect being to make even overwhelming scientific consensus appear unresolved. The court in this case rejected FMCSA's attempt to use uncertainty as a reason for failing to regulate. FMCSA assumed away the fatiguing effects of "time on task" in its cost-benefit model in order to justify increasing the maximum daily driving time, arguing that the studies showing incredible increases in crash risk after the eighth hour of driving do not provide sufficient evidence for attributing fatigue to the time spent driving. The court argued that this use of uncertainty was problematic: 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" ... 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. ... In light of this dubious assumption, the agency's cost-benefit analysis is questionable .... (Emphasis added.) In its rejection of the agency's claim that uncertainty prevented it from even roughly estimating the benefits that would accrue from increased compliance with hours-of-service regulation because of EOBRs, the court added, "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 ...." The effect of the court's decision is to erase the rule and send the agency back to the drawing board. For Further Reading:

• Notice of Proposed Rulemaking: 65 Fed. Reg. 25,540 (2000)
• Final Rule: 68 Fed. Reg. 22,456 (2003)
• Decision in Public Citizen v. Federal Motor Carrier Safety Administration, No. 03-1165 (D.C. Cir. July 16, 2004) (also on Westlaw at 2004 WL 1585847)