[00:00:00] Speaker 00: Case number 20-1370, Advocates for Highway and Auto Safety et al. [00:00:05] Speaker 00: Petitioners versus Federal Motor Carrier Safety Administration et al. [00:00:10] Speaker 00: Ms. [00:00:10] Speaker 00: Rosenthal for the petitioners, Mr. Springer for the respondents, Mr. Calvin for the intervener. [00:00:18] Speaker 02: Good morning and advocates for highway and auto safety council for petitioners may proceed. [00:00:24] Speaker 04: Thank you. [00:00:27] Speaker 04: May it please the court, Adina Rosenbaum, on behalf of petitioners. [00:00:31] Speaker 04: The hours of service rules governing the amount commercial motor vehicle drivers may work affect safety on America's roads and the health of the drivers. [00:00:40] Speaker 04: In the final rule at issue in this case, the Federal Motor Carrier Safety Administration changed those rules in two important ways. [00:00:48] Speaker 04: It expanded the permissible work days and driving radius of certain short haul drivers. [00:00:54] Speaker 04: So those are drivers that are exempt from having to log their driving time because they stay within a certain circumscribed area and return to their work location and are freed from work within a certain set time. [00:01:06] Speaker 04: And it eliminated the requirement that long haul workers [00:01:10] Speaker 04: take a 30-minute off-duty break if they have not taken such a break in the previous eight hours of working and replaced it instead with a requirement that they take only a 30-minute [00:01:22] Speaker 04: from driving if they have not taken such a break from driving in the previous eight hours of driving. [00:01:27] Speaker 04: Neither of these sets of changes were the results of recent decision-making. [00:01:32] Speaker 04: The agency stated that it did not expect the final rule to have negative impacts on either safety or driver health, but did not provide recent explanations of those conclusions in light of the evidence before the agency in the administrative record. [00:01:49] Speaker 04: Starting with the short-haul exemption, a 2011 study sponsored by the FMCSA, the Blanco study, found that driving later in the workday has a negative safety effect. [00:02:01] Speaker 04: By expanding short-haul drivers' workdays from 12 to 14 hours, the final rule allows driving later in the workday and would therefore also be expected to, logically, to negatively impact safety. [00:02:14] Speaker 05: It also conforms the rule for short haul truck drivers to the rules that had always, as I understand it, had always been in place for the long haul drivers, the 11-14 limits, and also the rules that had governed short and long haul cement mixer drivers. [00:02:40] Speaker 05: So isn't that at least pretty, [00:02:45] Speaker 05: significant fact in framing whether this seems like the kind of change that's likely to be dangerous? [00:02:54] Speaker 04: Well, it does make the short-haul work days the same as the driving window for long-haul drivers. [00:03:02] Speaker 04: But absent evidence in the record that the long-haul drivers drive just as safely with a 14-hour driving window as they would with a 12-hour driving window, that doesn't [00:03:14] Speaker 04: indicate that expanding short-haul drivers' work days will not affect safety particularly, and there isn't evidence of that in the record about whether drivers, long-haul drivers, drive just as safely with 14 hours as they would with 12 hours. [00:03:29] Speaker 04: And in fact, the Blanco study indicates just the opposite. [00:03:32] Speaker 04: It found that when drivers drove further into their 14-hour work day that there was a negative safety implication from that. [00:03:41] Speaker 04: With regard to the concrete mixers, the ready mix concrete mixers, the agency did do some analyses of crashes involving those concrete mixers in the two years before and after Congress extended their work days, the work days of short haul concrete mixers. [00:04:00] Speaker 04: As commenters noted, there were many limitations with the analyses. [00:04:04] Speaker 04: One is that it didn't just look at short haul concrete mixers. [00:04:07] Speaker 04: So it wasn't just a study of the drivers whose work days were extended in 2015. [00:04:14] Speaker 05: You have Blanco and you have Teo. [00:04:19] Speaker 05: They have concrete mixer. [00:04:21] Speaker 05: None of them is perfect, but the agency is picking among different studies that are cutting in opposite directions. [00:04:33] Speaker 05: It's a pretty granular level for us to come in and second guess them. [00:04:39] Speaker 04: Well, even when there are different studies, the agency has to provide a reasoned explanation for reaching the conclusion that it does and for relying on one set of studies as opposed to the other and for why it didn't. [00:04:52] Speaker 04: why it didn't think that the study is showing a negative impact on safety or worth relying on. [00:04:59] Speaker 04: And here what the agency stated, despite the Blanco study and the TO study, was that it had no reason to think that the changes to the short haul exemption would have a negative impact on safety, which is not reasoned. [00:05:11] Speaker 04: Although there are these concrete mixer analyses, it does not justify the agency's statement that there's no reason to think that there would be a negative effect on safety given the Blanco study. [00:05:21] Speaker 04: And I would note that the concrete mixer analyses, also commenters had noted that there are reasons to think that concrete mixers would not be similar to other short haul drivers, that they may drive more slowly or spend more time on highways. [00:05:36] Speaker 04: And what the concrete mixer analyses actually showed was that crashes of ready-mixed concrete mixers increased 8.5%. [00:05:43] Speaker 04: in the two years after Congress extended short haul concrete mixers work days as opposed to the two years beforehand. [00:05:52] Speaker 04: The agency nonetheless relies on those analyses by saying that [00:05:58] Speaker 04: Concrete mixers' share of total truck crashes did not increase in a statistically significant manner during that time. [00:06:07] Speaker 04: But it doesn't provide the information that would allow anyone to know whether the share of concrete mixers, the percentage of concrete mixers themselves involved in accidents, increased in a statistically significant way over that period. [00:06:20] Speaker 04: And whether that 8.5 increase was statistically significant when considered as a share of all [00:06:27] Speaker 04: of all ready-mix concrete vehicles as opposed to as a share of all truck crashes. [00:06:34] Speaker 04: Related to safety, the agency also did not reasonably explain its conclusion that expanding the short haul drivers work days and driving radius would not affect compliance with the hours of service rules. [00:06:52] Speaker 04: The hours of service rules in addition to setting limits on work days. [00:06:55] Speaker 03: What is the radius? [00:06:57] Speaker 03: How does the radius affect compliance? [00:07:03] Speaker 04: It affects compliance by working in conjunction with the extension in the workday in that it allows drivers to drive. [00:07:09] Speaker 04: So you don't have any independent? [00:07:12] Speaker 03: You're joining it up with the hours extension. [00:07:15] Speaker 03: I'm asking if you have any independent [00:07:18] Speaker 03: basis for thinking that just as the radius, I'm trying to divide these two things up, that itself has an impact on compliance. [00:07:27] Speaker 04: Well, the way that it would have an impact on compliance is that it allows drivers to drive longer distances without stopping. [00:07:38] Speaker 03: How do we know it's without stopping? [00:07:40] Speaker 03: How do we know that they're not stopping just as they do in shorter distances because they're short haul and maybe they're just able to reach a few more customers? [00:07:48] Speaker 03: We don't know that they're only going to one more customer in that additional radial area, radius area, whatever it's called. [00:07:56] Speaker 04: Well, when the Federal Highway Administration adopted [00:08:00] Speaker 04: In 1980, the Federal Highway Administration extended the driving radius from 50 to 100 hours. [00:08:09] Speaker 04: And when it did that, it adopted the 12-hour limitation, saying that in light of the larger area, it thought that the limitation on hours was necessary to ensure that the hours of service are not violated. [00:08:23] Speaker 03: We're talking about a limitation on hours there, and I'm still trying to talk. [00:08:27] Speaker 03: I don't understand how the radius, because I don't understand your concerns about the increase in radius. [00:08:34] Speaker 03: It just may deal with placements and routes that allow companies to reorganize or, in their view, I assume, more efficiently organize routes to meet a greater area. [00:08:45] Speaker 03: But I just don't see compliance or honestly even safety concerns about the radius itself. [00:08:51] Speaker 04: Sure, with the radius allowing them to go further, it does allow them to go more without stops. [00:08:56] Speaker 04: And it may be that some of them still do. [00:08:58] Speaker 03: That's what I'm listening to. [00:08:59] Speaker 03: How do you know they're going more without stops as opposed to they've got, you know, wow, great, I can meet this other circle of customers and I'm going to stop every 10 miles or 15 miles. [00:09:12] Speaker 03: There's two more customers, I'll stop every 15 miles. [00:09:15] Speaker 04: So they may do that or they may decide that they're going to go further, you know, have the same number of stops. [00:09:20] Speaker 04: That's the point, we don't know. [00:09:22] Speaker 03: And the agency at one point says that... They could do that within the shorter radius as well, just depends on how companies organize their routes, doesn't it? [00:09:29] Speaker 04: But they can now organize their routes so that they go farther out and have less distance between stops, which would then allow the second part. [00:09:37] Speaker 03: I'm sorry. [00:09:37] Speaker 03: I'm repeating myself. [00:09:39] Speaker 03: I get that they can go further out. [00:09:40] Speaker 03: I just don't know what evidence in the record is there that when you go further out, there will necessarily be less distance between stops as opposed to maybe it'll be roughly the same because they've got more customers out there. [00:09:53] Speaker 04: Right, so it's not necessarily, we're not saying then every instance they will have fewer... Most instances, do you have evidence of most instances? [00:10:01] Speaker 04: It does allow them to go further. [00:10:02] Speaker 04: Well, you could have said the same thing from 50 to 100, but... The agency did recognize with the change from 50 to 100 that because it did allow them to go further, that there then needed to be other limitations to keep them, you know, that affected compliance with the hours. [00:10:20] Speaker 04: That's why we're back to the hours issue, but... [00:10:22] Speaker 04: Well, they do work hand in hand, so it realized that without limiting hours that the extension in the air mile radius would allow more violations. [00:10:33] Speaker 03: Would your challenge to the hours change be any different if they had left the travel radius the same? [00:10:45] Speaker 04: We would still have a challenge to the hours if they had left [00:10:49] Speaker 04: I do think that the change in the air mile radius exacerbates the change in the hours because it does allow them to go a greater distance. [00:11:06] Speaker 04: without stopping if they want to, although they won't do it in every time. [00:11:10] Speaker 04: And the final rule at one point does acknowledge that they could potentially go further with making fewer stops or that the error, the change in the hours could also allow them to make more stops within a smaller radius. [00:11:24] Speaker 04: But in 1980, the Federal Highway Administration did acknowledge when it expanded the air mile radius from 50 to 100 miles that a limitation on the hours was necessary in order to help ensure that the hours of service were not violated. [00:11:39] Speaker 04: And then again, in 1987, it reiterated that it thought that 12-hour limitation was necessary to ensure that drivers were not violating the [00:11:52] Speaker 04: the hours of service without detection. [00:11:56] Speaker 04: The agency has not explained why if the 12-hour limitation was necessary with a 100-air mile radius, why it would not be necessary with 150-air mile radius, or in any other way explained what has changed since 1980 and 1987 that makes the rationale that underlay the prior rule no longer still apply today. [00:12:23] Speaker 03: Deep prevailance is just a if question. [00:12:26] Speaker 03: On your hours challenge, and they were to be vacated, would the radius requirement have to be vacated or could that stand? [00:12:38] Speaker 04: I do think that these were changes that were enacted together and go together and the agency did not really separate out. [00:12:46] Speaker 03: Lots of things are enacted together, but we don't think they have to get vacated. [00:12:50] Speaker 03: I'm not sure that's our test. [00:12:51] Speaker 03: It would be simpler if it were. [00:12:54] Speaker 04: I do think that they were sort of part and parcel of the same change. [00:12:58] Speaker 03: I don't know if you mean by part and parcel. [00:13:00] Speaker 03: That's another way of saying they did them at the same time. [00:13:04] Speaker 03: The agency can tell us their views on this as well. [00:13:10] Speaker 03: Given that the arguments seem to keep coming back to the hours limitations, and that's what's needed to ensure your compliance argument, then if they had kept the same hours requirement but just increased driving radius, I don't know what your objection would be because you would still have the 12 hour. [00:13:31] Speaker 03: which you say is the backstop needed for compliance. [00:13:33] Speaker 04: Right. [00:13:33] Speaker 04: I do think that that would still have the possibility to affect compliance the same way that a change from 50 to 100 air miles, the agency recognized that that could. [00:13:42] Speaker 03: Yes. [00:13:42] Speaker 03: And it said the backstop for that was 12 miles. [00:13:44] Speaker 03: And if you had, you know, your druthers, then there was the 12 miles, 12 hours, sorry, 12 hour requirement. [00:13:52] Speaker 03: If that were to stay in place, [00:13:55] Speaker 03: Do you say that protection wouldn't work if the radius were increased? [00:13:59] Speaker 03: What evidence in the record shows did the agency not grapple with or what rationale is given that if there were a 12, if the 12-hour limitation were maintained, it wouldn't work once you go from 100 to 150 on the travel radius? [00:14:12] Speaker 04: I mean, we do think that the same way that switching from 50 to 100 has a possibility to affect compliance. [00:14:17] Speaker 03: So you're just saying any change can increase, creates enough of a compliance problem. [00:14:23] Speaker 04: I do think that it does present a compliance problem, but the extension of the 12 hours to 14 hours certainly gives many more opportunities not to comply for drivers to be able to violate the hours of service limits or to be pressured by employers to violate the hours of service limits without detection. [00:14:45] Speaker 04: And the agency hasn't explained why the rationale underlying that 12-hour limitation is no longer [00:14:52] Speaker 04: I do want to briefly touch on the 30-minute break requirement. [00:14:56] Speaker 04: And in particular, the agency is required to consider health when it's making changes to the hours of service rules. [00:15:05] Speaker 04: And here there is no indication or analysis of the effects of the 30-minute break requirement on driver health. [00:15:13] Speaker 04: Agency only broadly talks about how it does not expect the final rules changes overall. [00:15:19] Speaker 04: negatively impact health with no analysis specifically of the 30-minute break requirement. [00:15:25] Speaker 04: And this is particularly problematic given that the rule that adopted the 30-minute break requirement in 2011 did find that there would be health benefits of $94 million to the 30-minute break requirement that were based on a connection between reduced duty hours and morbidity. [00:15:40] Speaker 04: So words seem to be affected by these changes in the final rule. [00:15:45] Speaker 05: So what's the health concern other than [00:15:49] Speaker 05: impact on crash likelihood. [00:15:52] Speaker 04: So the health concern would be a health concern about working. [00:15:56] Speaker 05: Just working 14 hour days is stressful. [00:16:02] Speaker 03: I assume it would be the particular health risk associated with sitting and driving for 14 hours. [00:16:13] Speaker 03: Health risk. [00:16:14] Speaker 03: I mean, the drivers have distinct or not distinct health risks, but higher percentages of certain diseases. [00:16:22] Speaker 03: At least this is what the record said. [00:16:25] Speaker 03: And if they already have that without the 30 minute break, would it not be worse? [00:16:32] Speaker 04: So I think it would be the health risk of both working, of sitting for so long and having these long days combined with not having the right to an off-duty. [00:16:42] Speaker 03: Down time. [00:16:43] Speaker 04: Down time. [00:16:44] Speaker 04: But the agency did not analyze the break at all. [00:16:49] Speaker 04: There's no indication that it analyzed the effect of the break on health impacts. [00:16:54] Speaker 05: The break or breaks, the concern is you're sitting [00:17:02] Speaker 05: could be sitting for eight hours in row and that has cardiovascular effects or whatever, the break, that's a concern from sitting too long and not from working too long, right? [00:17:18] Speaker 05: And the amended rule addresses that because it's key to hours of driving. [00:17:25] Speaker 04: So the amended rule does address sort of sitting continuously. [00:17:29] Speaker 04: But the health benefits in the 2011 regulatory impact analysis were actually based on increases in duty hours overall and connections between increased working time and morbidity. [00:17:45] Speaker 05: Increase. [00:17:46] Speaker 05: I'm just trying to separate out the idea that I had in my mind was long work day. [00:17:54] Speaker 05: And the different idea that Judge Mallette pointed out was the concern from sitting too long. [00:18:00] Speaker 05: Those seem to me different. [00:18:03] Speaker 04: So I think those are slightly different. [00:18:05] Speaker 04: The new rule may somewhat deal with the sitting too long. [00:18:08] Speaker 05: The new rule does deal with the sitting too long, I think. [00:18:11] Speaker 04: In some ways, although it also does only require the break to be taken after eight hours of driving as opposed to eight hours of working. [00:18:19] Speaker 04: So if someone has done work earlier on in their duty period, that would still allow them to be sitting longer before they take the break. [00:18:28] Speaker 05: What's the typical non-driving work? [00:18:31] Speaker 05: Is it likely to be sedentary sitting at a desk filling out forms or is it likely to be active [00:18:39] Speaker 05: loading the truck or whatever? [00:18:40] Speaker 04: I think both can be done. [00:18:41] Speaker 04: There can be loading time. [00:18:42] Speaker 04: There can be time just sort of sitting around waiting. [00:18:45] Speaker 04: There could be time doing paperwork. [00:18:48] Speaker 04: So I think both are possibilities. [00:18:53] Speaker 04: I see that my time is up. [00:18:54] Speaker 04: So thank you. [00:19:15] Speaker 01: Good morning, your honors, and may it please the court. [00:19:17] Speaker 01: Brian Springer on behalf of the federal government. [00:19:20] Speaker 01: I'd like to start by focusing on the specific changes that FMCSA made to the hours of service rules. [00:19:28] Speaker 01: The short haul exception is not extend driving time, but instead changes the reporting status of drivers who travel between 100 and 150 miles of their reporting location [00:19:41] Speaker 01: who return to that location between 12 hours and 14 hours from the start of their shift. [00:19:47] Speaker 01: The 30-minute break requirement also does not change the driving limit, but instead requires that long-haul drivers take a 30-minute driving break after eight hours of driving. [00:20:00] Speaker 01: These changes are reasonably explained and supported. [00:20:03] Speaker 01: Nothing more is required to uphold the agency's considered judgment. [00:20:09] Speaker 01: Yes, I'd just like to. [00:20:10] Speaker 03: At least on the, I don't mean to go backwards, but on the 30 minute break issue, if someone's day is sort of front loaded with non-driving activities, and then for six hours, and then they drive eight hours, and that's the end of the 14 hour day, there will be zero break within 14 hours. [00:20:35] Speaker 03: Is that right? [00:20:37] Speaker 01: That's right, right? [00:20:39] Speaker 03: There'll be zero break. [00:20:41] Speaker 03: Zero rest break. [00:20:43] Speaker 03: I guess you would call the first six hours of non-driving work a break. [00:20:48] Speaker 01: Your Honor, the rule wouldn't require a break in that circumstance, but the agency found that drivers are likely to take breaks when they need rest anyway. [00:20:56] Speaker 01: Drivers are often stopping to eat food and use the bathroom. [00:21:00] Speaker 01: and that when they need time to rest and to take a break, that they will do so in any event. [00:21:06] Speaker 01: So the rule just doesn't apply. [00:21:08] Speaker 03: Self-regulation is what the agency is now relying on. [00:21:11] Speaker 01: Your Honor, the agency also considered... Did the agency find that they don't eat while driving? [00:21:15] Speaker 03: Maybe they grabbed their food, but I mean, it just... It seems odd to me to say they can work an 18-hour day straight through and have... I'm sorry, not 18, 14-hour day straight through with no... [00:21:31] Speaker 03: downtime break, solid work for 14 hours. [00:21:37] Speaker 03: And maybe they run in and out of that restroom. [00:21:41] Speaker 03: And that's it. [00:21:44] Speaker 03: And that is what seemed to be consistent with making safety a highest priority. [00:21:51] Speaker 01: So the agency considered the Blanco study here and found that what the Blanco study explained is that any break from the driving task is what creates a benefit to the driver. [00:22:02] Speaker 01: So the agency explained that, you know, looking at specifically the fact that drivers might stop for fuel or stand around while their truck is being loaded or unloaded, and that those breaks from the driving task are exactly what provides the safety benefit. [00:22:18] Speaker 03: But none of those are required. [00:22:20] Speaker 03: You're just hoping that they happen. [00:22:21] Speaker 03: You're expecting that they'll happen. [00:22:23] Speaker 01: It's more than hoping, to be fair. [00:22:25] Speaker 03: They're not required. [00:22:26] Speaker 01: They do have to happen if the driver has driven for eight hours or more. [00:22:32] Speaker 03: No, but in my theory, where the six hours is work, the on-duty work six hours is upfront, and then there's eight hours of driving at the end of the day, which is the worst time studies have revealed for driving. [00:22:46] Speaker 03: concerns and risks later in the shift, later in the day, the higher the risk goes. [00:22:52] Speaker 03: But that eight hours would be without anything unless probably they have to stop for gas. [00:22:59] Speaker 03: Maybe they grab some food to eat while driving. [00:23:01] Speaker 03: And that was found to be consistent with making safety a highest priority. [00:23:10] Speaker 01: Governor, I think that what the agency said here was that based on the comments it received, that sort of situation wouldn't happen often. [00:23:17] Speaker 01: It wasn't realistic. [00:23:18] Speaker 01: Because drivers will take breaks regardless of whether they're mandated to take an off break. [00:23:22] Speaker 03: How long are those breaks? [00:23:23] Speaker 03: What did the agency find? [00:23:24] Speaker 03: How long does the gas break? [00:23:28] Speaker 03: And the gassing up, presumably, maybe the bathroom, that one happens at the same time. [00:23:31] Speaker 03: Maybe food, maybe they do it all at once. [00:23:33] Speaker 03: How long a break are those things? [00:23:35] Speaker 03: Put aside the on-duty, non-driving. [00:23:39] Speaker 03: breaking driving by on-duty work. [00:23:41] Speaker 03: Did the agency find how long those are? [00:23:43] Speaker 01: I don't know. [00:23:45] Speaker 01: The agency couldn't make that finding because it varies from circumstance to circumstance and depends on exactly. [00:23:50] Speaker 01: Doesn't that matter a lot, though? [00:23:51] Speaker 03: It doesn't have to find precisely. [00:23:53] Speaker 03: Everybody does exactly 10.3 minutes. [00:23:58] Speaker 03: But isn't there some need for some substantiation that this is actually a meaningful period? [00:24:03] Speaker 03: Because just saying they're not driving [00:24:07] Speaker 03: without knowing for how long they're not driving, and particularly if you're talking about late in the shift, why doesn't the agency need to have something under a statute that says make safety your highest priority, need something more than anecdotally how people take time to get gas, go to the bathroom and grab some food? [00:24:27] Speaker 01: I don't think it's just those anecdotal pieces of evidence. [00:24:30] Speaker 01: It's also the Blanco study, as I mentioned, the agency considered and explained that what the Blanco study says is as well as multiple other studies describing the Blanco study and its findings. [00:24:42] Speaker 01: But what those say is that what provides the benefit and combats the effects of fatigue at the end of the day, which is what we're really concerned about here, [00:24:52] Speaker 01: is the break from the driving task, which under this rule, drivers are required to... But didn't the studies also say that as they get later into the shift, risks increase? [00:25:04] Speaker 03: Your Honor, it does say that, but... And if you had eight hours straight of driving? [00:25:08] Speaker 01: Again, Your Honor, the agency explained that that just was not likely to happen. [00:25:15] Speaker 03: No, but it didn't define how much, how can we know that I'm running to the bathroom and grabbing a sandwich while my truck is gassing up? [00:25:25] Speaker 03: And then I'm right back in there because deadlines are deadlines. [00:25:30] Speaker 03: That doesn't the agency need to focus on? [00:25:32] Speaker 03: You can say they're going to do that. [00:25:35] Speaker 03: But whether that is physically and mentally a meaningful break, [00:25:42] Speaker 01: Your honor, I think that the agency has that support from the studies that it cited, including the Blanco study and the, I believe it's called the Sokolish study, among others, that this is the way, and when you combine that with this anecdotal evidence. [00:25:56] Speaker 03: But they had done that, those studies I assume were done at a time when they were also getting a 30 minute break after eight hours of work. [00:26:05] Speaker 03: whether it's driving or non-driving. [00:26:07] Speaker 03: Were all those studies and experiences occurring at a time when they were already under the prior rule getting the 30 minute break from work? [00:26:17] Speaker 01: Your honor, the Blanco study was done before the 2011 rule. [00:26:21] Speaker 01: And the Blanco study specifically talks about non-driving versus driving breaks and says that a non-driving break can provide, at least the agency explained that its analysis of Blanco [00:26:32] Speaker 01: Is that that study said I'm going to say that. [00:26:36] Speaker 01: Yes, your honor, it did. [00:26:37] Speaker 03: Okay, because you quickly corrected to the agency says that's what Blanco said. [00:26:40] Speaker 03: Well, your uncle said that. [00:26:41] Speaker 01: Well, your honor, obviously, we should be focusing on the agency's analysis of Blanco, but that's also explicit in itself. [00:26:49] Speaker 01: For example, at JA-25, it says that non-driving brakes are just as beneficial or can be just as beneficial as these off-duty brakes. [00:26:59] Speaker 03: Well, but in 2011, the agency found that off-duty brakes provide the greatest benefit. [00:27:06] Speaker 03: You don't disagree with that. [00:27:08] Speaker 03: Your Honor, it... Which is very different from it's just the same to have an on-duty brake. [00:27:13] Speaker 03: It's more inconsistent. [00:27:14] Speaker 01: Your Honor, the agency found, made that finding based on the Blanco study, which had reanalyzed and issuing this rule and determined that it had placed too great a weight on the benefits of off-duty breaks and looking at Blanco again and particularly analyzing it in the context of the particular- It was wrong when it said in 2011 that off-duty breaks provide the greatest benefit. [00:27:37] Speaker 01: That was wrong. [00:27:39] Speaker 01: Your honor, the agency has decided that it reads the Blanco study differently now that it. [00:27:44] Speaker 01: So it was wrong. [00:27:45] Speaker 03: It read it wrong in 2011. [00:27:47] Speaker 01: Your honor, based on the experience that it's had in between, it has changed its analysis of what. [00:27:52] Speaker 03: Of the study? [00:27:55] Speaker 03: The study. [00:27:58] Speaker 03: You can say you're relying on experience, but they read the study one way in 2011. [00:28:04] Speaker 03: And now they're reading it a different way. [00:28:06] Speaker 03: So one of the two has to be wrong. [00:28:11] Speaker 03: Or else the study isn't worth much if you can't really tell that much from it. [00:28:16] Speaker 01: Your Honor, the agency's reading it differently in part because of the way that Blanco characterized what counts as an off-duty versus on-duty break. [00:28:26] Speaker 01: So the agency was actually looking at in the real world how these things work and which classification those things would fall under based on the real hours of service rules. [00:28:35] Speaker 01: And based on those classifications, it determined that it had placed too great a weight on the benefits of an off-duty break when a driving break is really what provides the benefit. [00:28:47] Speaker 03: And there's a driving break of any length of time. [00:28:50] Speaker 03: Be clear, right? [00:28:52] Speaker 01: Well, it's required to be a 30 minute break if the driver has been driving for eight hours. [00:28:57] Speaker 03: Right. [00:28:57] Speaker 03: I've got my six hour and eight hour hypothetical. [00:29:02] Speaker 03: A break of any time is equivalent to a 30 minute off duty break. [00:29:09] Speaker 03: That's the agency's conclusion here. [00:29:11] Speaker 01: Your honor, again, in that circumstance, the agency said that drivers would likely take breaks. [00:29:15] Speaker 03: A break of any time. [00:29:16] Speaker 03: Those breaks that are not quantified on time. [00:29:19] Speaker 03: a break of any time. [00:29:20] Speaker 03: That's the agency's reading of the Blanco study performed by its experience. [00:29:25] Speaker 03: But after working six hours in the office or loading or whatever they're doing, and then driving, they've got an eight solid hours of driving ahead of them, a break of any time. [00:29:38] Speaker 01: Yes. [00:29:38] Speaker 03: I mean, I think that's, yes, that's gotta be your answer. [00:29:40] Speaker 03: That's what the rule says. [00:29:41] Speaker 01: What the agency says is that Blanco shows that there's not that this distinction that the agency itself had drawn between on duty and off duty breaks was not supported by Blanco and instead that the on duty break is really what provides the benefit. [00:29:57] Speaker 01: to the drivers in terms of combatting fatigue. [00:30:00] Speaker 01: And obviously, the agency didn't have perfect evidence, but it looked at what it had. [00:30:05] Speaker 01: It made judgment calls about the dueling studies and about the information that it received from commenters and reached a reasonable conclusion based on, you know, within the limits of the data that it had. [00:30:18] Speaker 05: There's something a little bit odd about the agency's justification [00:30:26] Speaker 05: following sense. [00:30:28] Speaker 05: It seems very obvious that at some point, um, drivers will need breaks, right? [00:30:37] Speaker 05: They drive for too long. [00:30:39] Speaker 05: There starts to be a safety risk and seems pretty plausible to me anyway that you drive for eight hours in a row. [00:30:50] Speaker 05: You're getting past that point. [00:30:54] Speaker 05: And the agency doesn't really dispute that as a proposition of how human beings fatigue after driving for eight hours. [00:31:07] Speaker 05: They say, don't worry about that because no one's gonna be driving for eight hours, right? [00:31:14] Speaker 05: That's the basic rationale, which is to say that the standard the agency has set [00:31:23] Speaker 05: has no meaningful impact. [00:31:26] Speaker 05: Because nobody drives for eight hours without a break of some kind. [00:31:32] Speaker 01: I don't think that's exactly right in the sense that what this rule requires is that if somebody drives for eight hours without taking a 30 minutes continuous break, that in that circumstance, they are required to. [00:31:45] Speaker 01: The agency obviously was allowed to consider and did consider here how this is likely to play out in the real world. [00:31:52] Speaker 01: And based on what the agency was seeing, it saw that in general, drivers are going to take breaks when they need to take breaks and get rest. [00:32:03] Speaker 01: But once they reach an eight hours of driving time, they should be taking a break from the driving task because that's what provides the actual benefit of combating fatigue in these drivers as they continue to sit and drive for a long time. [00:32:20] Speaker 01: you know, breaking up that time on task. [00:32:22] Speaker 05: But they don't they don't say as a general matter, perfectly safe, safe enough to drive for eight hours in a row with no break. [00:32:32] Speaker 05: And then that's the point of which safety kicks in. [00:32:35] Speaker 05: They say most people won't drive for eight hours. [00:32:42] Speaker 01: I think they say that and they also say that, you know, that that's also the time within which they expect drivers to take a break in order to combat this fatigue. [00:32:52] Speaker 01: I mean, the rule before was just about eight was also an eight hour period. [00:32:57] Speaker 01: It was just an eight hour on duty period instead of an eight hour driving. [00:33:00] Speaker 05: No, I know I'm focused on driving. [00:33:02] Speaker 05: I mean, you'd be making exactly the same argument if it were a 16 hour driving, right? [00:33:10] Speaker 05: You'd say, well, that's crazy. [00:33:12] Speaker 05: Don't worry about that because no one is going to be driving 16 hours. [00:33:16] Speaker 01: I'm not sure if that's true, because potentially in that circumstance, drivers wouldn't have supported the rule here. [00:33:24] Speaker 01: Multiple drivers came forward and supported the rule. [00:33:26] Speaker 01: This provides them greater flexibility and makes it easier for them to get home earlier and has multiple benefits for them. [00:33:34] Speaker 01: Suppose if it were a different calibration of the rule, it's possible drivers or employers would have come in and suggested that they were going to force their drivers to drive that many hours without a break. [00:33:45] Speaker 01: Here we don't have that evidence. [00:33:47] Speaker 03: And they're relying on the gas, food, and bathroom breaks. [00:33:55] Speaker 03: Was the agency assuming those were three separate breaks or done simultaneously? [00:33:59] Speaker 03: What was the evidence? [00:34:02] Speaker 03: I thought the ones that were referenced in the rule were restroom, gassing up, and grabbing food. [00:34:10] Speaker 01: There's multiple other breaks that the agency noted in addition to those. [00:34:13] Speaker 01: So there's using the restroom, eating something to eat. [00:34:18] Speaker 01: Yeah, the three you said, in addition to those, there's also waiting for the truck to be loaded or unloaded. [00:34:24] Speaker 03: No, that goes to the driving, on duty time. [00:34:28] Speaker 03: I'm talking about my solid eight hours of driving. [00:34:32] Speaker 03: What is there other than the three I've mentioned? [00:34:34] Speaker 01: Your Honor, I suppose those are [00:34:39] Speaker 01: Right now, I can't think of another thing that they're likely to. [00:34:42] Speaker 03: I'm not a driver, but I don't know either. [00:34:44] Speaker 03: Right. [00:34:44] Speaker 03: And is the agency, when it says it'll be taking breaks, plural, it's assuming that drivers aren't efficient enough to do those three things at the same time? [00:34:58] Speaker 03: Is it assuming that those things are done simultaneously? [00:35:01] Speaker 03: So they're really in eight hours is probably just one. [00:35:05] Speaker 01: Governor, I don't think the agency is assuming anything one way or another. [00:35:08] Speaker 03: Did it find anything about frequency? [00:35:11] Speaker 03: I was talking to you before about the time, how long this is, but did it find any finding at all about how frequent these, oh, they're not going to do it, breaks, they're not going to drive eight solid hours, breaks are going to happen? [00:35:23] Speaker 03: Any evidence on frequency? [00:35:25] Speaker 01: The agency didn't have specific evidence about that. [00:35:28] Speaker 01: It doesn't necessarily have the ability to get that kind of granular information. [00:35:33] Speaker 03: It's got truckers telling them what you just told us. [00:35:37] Speaker 03: It had truckers telling them how they work. [00:35:40] Speaker 03: I'm still struggling with understanding how the agency knew this was going to be enough of a break if it didn't know how long or even how often. [00:35:55] Speaker 03: But it concluded that this was consistent with highest safety. [00:36:01] Speaker 03: Just laying out for you sort of the mental gap, I'm having trouble bridging here, but you may be able to explain it to me better. [00:36:08] Speaker 01: Your Honor, I think the important thing is that the agency made a judgment that after eight hours of driving, drivers need to take a 30-minute break from the driving task. [00:36:20] Speaker 01: The agency recognized that in addition [00:36:22] Speaker 01: drivers would likely be taking these short breaks to go to the bathroom and to eat and to do these other things that, you know. [00:36:30] Speaker 03: So the agency agrees that eight solid hours, if they didn't do that, would not be safe. [00:36:38] Speaker 03: Your Honor, its rule assumes that there's some break within that eight hours. [00:36:43] Speaker 01: Now, I'm not sure that the rule assumes that. [00:36:45] Speaker 01: Again, it specifically said that this isn't likely to happen because drivers are taking a break [00:36:52] Speaker 01: or often taking a break from the driving task as a matter of practicality. [00:36:58] Speaker 01: I'm also happy to address the short haul. [00:37:01] Speaker 03: I'm sorry. [00:37:01] Speaker 03: I did. [00:37:01] Speaker 03: Yeah. [00:37:02] Speaker 03: You should. [00:37:03] Speaker 03: My colleagues want to talk about that. [00:37:05] Speaker 03: I'm sorry I took up too much time. [00:37:06] Speaker 05: That's fine. [00:37:07] Speaker 05: Are we done on the break time? [00:37:11] Speaker 05: So on short haul. [00:37:15] Speaker 05: Seems like the best, to me, the most plausible explanation for the expansion of the exemption would be to simply say you're conforming the basic rules. [00:37:33] Speaker 05: Basic rule is you can drive 11 hours within a 14-hour shift. [00:37:38] Speaker 05: You're just conforming the rule for drivers subject to the short haul. [00:37:43] Speaker 05: to drivers subject to the long haul and the cement mixers. [00:37:48] Speaker 05: And if that's the baseline, no reason to think it isn't working. [00:37:53] Speaker 05: So you're harmonizing this group to that rule. [00:37:56] Speaker 05: But you didn't quite say that. [00:37:59] Speaker 05: You said that the changes were safety neutral. [00:38:04] Speaker 05: Seems to make an assertion about ex post versus ex ante. [00:38:12] Speaker 05: not about safety relative to other groups, but that the changes would make things no less safe for the short haul drivers. [00:38:24] Speaker 05: And that's a tougher position for you to establish factually. [00:38:30] Speaker 05: So am I misreading the agency's rationale? [00:38:38] Speaker 01: No, Your Honor, so the agency did note that it was conforming the short-haul exception to a short-haul exception that existed for drivers who don't have to have commercial drivers licenses, was also making some of these changes, made it more consistent with the driving window for long-haul drivers. [00:38:57] Speaker 01: But the agency, and again, of course, the agency didn't have perfect information here, and it used the available data that it had. [00:39:04] Speaker 01: I think one important piece of information [00:39:07] Speaker 01: that the agency had was this data about concrete mixers. [00:39:11] Speaker 01: In particular, Congress extended their workday, at least those concrete mixers who use the short haul exception, extended their workday from 12 to 14 hours. [00:39:22] Speaker 01: So the agency looked at the changes in crashes across [00:39:27] Speaker 01: the time that Congress made that change. [00:39:30] Speaker 05: What the agency saw is that particularly at the end of the day, when we would expect these drivers to be reaching the end of their shifts and most likely to have accumulated large levels of... I understand you have both strands of reasoning, but in order to uphold this rule, would we have to conclude that there is substantial evidence for the proposition that [00:39:57] Speaker 05: the amended rule is no less safe for the short-haul drivers than the pre-amendment rule? [00:40:06] Speaker 01: Your Honor, the agency's final conclusion was that this change to the short-haul exception was not likely to have an adverse effect. [00:40:15] Speaker 05: Is that an essential element for us to uphold? [00:40:18] Speaker 01: General, I think that was the agency's rationale, but it had multiple pieces of evidence here to support. [00:40:27] Speaker 01: But its conclusion was that these changes were not likely to have an adverse safety impact. [00:40:34] Speaker 05: If you're resting on that theory, you didn't talk about Blanco. [00:40:46] Speaker 05: on this point seems like a pretty glaring omission. [00:40:52] Speaker 05: If your theory is this makes things no less safe. [00:40:57] Speaker 05: Agencies own study. [00:40:59] Speaker 05: It's only one and they're competing studies, but it's the agency's own study. [00:41:04] Speaker 05: It's a study that you relied on very heavily on the break point and you don't even mention it on this question. [00:41:14] Speaker 05: Why isn't that? [00:41:16] Speaker 01: I think that's a good point. [00:41:20] Speaker 01: I think that's a good point. [00:41:21] Speaker 01: I think that's a good point. [00:41:22] Speaker 01: I think that's a good point. [00:41:24] Speaker 01: I think that's a good point. [00:41:27] Speaker 01: I think that's a good point. [00:41:30] Speaker 01: helpful to combat fatigue at the end of the day. [00:41:32] Speaker 01: The agency explained that short haul drivers, you know, short haul operations by their nature are limited because the short haul drivers are making frequent stops throughout the day. [00:41:42] Speaker 01: They're getting out to drop off cargo, to talk to customers. [00:41:45] Speaker 01: You know, that's sort of the nature of the business. [00:41:48] Speaker 05: I thought you relied on Blanco for the break, 30 minute break point, but not the short haul point. [00:41:55] Speaker 05: Did I miss something? [00:41:56] Speaker 01: Your Honor, the agency relied on it for both. [00:41:59] Speaker 01: The agency in particular noted that its discussion in the 30 minute break piece applied to its discussion of the short haul exception. [00:42:11] Speaker 03: Did the agency find with its concrete study that concrete drivers make the same type of frequent stops [00:42:21] Speaker 03: and have the same kind of loading and unloading responsibility, sort of the physical tasks of loading and unloading than any other short haul drivers do? [00:42:31] Speaker 01: My understanding is that the concrete mixers make multiple stops throughout the day and usually are standing around while the concrete is being unloaded. [00:42:39] Speaker 03: There's not, obviously not loading or unloading, boxes or anything to load or unload. [00:42:44] Speaker 03: So that physical exertion is not the same as many other. [00:42:47] Speaker 03: short haul drivers. [00:42:49] Speaker 03: When they say they make frequent stops, I'm asking is sort of an equivalence, are they representative of short haul drivers? [00:42:56] Speaker 03: Do they find that they're representative of short haul drivers? [00:42:58] Speaker 03: And I could be wrong, but I think of like a Amazon driver, a UPS driver, they're just stopping all the time. [00:43:05] Speaker 03: And I guess I would have thought concrete ones would go to a construction site and stay there for a while and maybe later go to another construction site. [00:43:13] Speaker 01: Your honor, the agency noted that the concrete mixer data wasn't perfectly representative of all short haul operations. [00:43:19] Speaker 03: But it found it to be representative. [00:43:21] Speaker 01: It did find it to be helpful here, and it was the best available. [00:43:24] Speaker 03: Wait, can it be helpful if it's not representative? [00:43:27] Speaker 03: Your honor, it's not perfectly representative. [00:43:29] Speaker 03: Did they find that it was representative? [00:43:32] Speaker 01: Your Honor, they found that this evidence was helpful to think about what the likely change is. [00:43:37] Speaker 03: How is it helpful if it's not representative? [00:43:40] Speaker 01: Your Honor, all they said was that it wasn't perfectly representative. [00:43:43] Speaker 01: They didn't say that it didn't have any probative value. [00:43:45] Speaker 03: They didn't say that it did, that it was representative. [00:43:47] Speaker 03: Isn't that a problem? [00:43:49] Speaker 03: Your Honor, there are lots of things that aren't perfectly representative that, in fact, are not representative at all. [00:43:56] Speaker 03: Didn't they need to find or tell me why they didn't need to find that it was representative? [00:44:03] Speaker 03: in as to these things, as to the activities the short haul drivers engage in, the physicality of their activities during stops and the number of stops per day, which seems to be sort of the critical ones for, maybe there's another one you're aware of, but those seem to be sort of the critical ones for understanding the physical impact of the day. [00:44:31] Speaker 01: Your honor, the agency was considering the concrete mixer data within thinking about what the fatigue effects would be of this rule and the agency explained that this was the best available data because it was nationwide and it showed how a before and it allowed the agency to do a before and after comparison. [00:44:48] Speaker 03: If it's not representative, how can it be? [00:44:51] Speaker 03: I mean, best available could be still entirely non-representative. [00:44:55] Speaker 03: It just could be best available, but not good enough. [00:44:59] Speaker 03: It doesn't seem to me it's enough to say this is the only study we could find, make safety conclusions without saying they're not identical, but they are representative enough. [00:45:14] Speaker 03: That it allows us for safety purposes to make this, that it involves equivalent [00:45:22] Speaker 03: closely equivalent exertion, nature of on duty, non-driving activities. [00:45:29] Speaker 03: Don't they need to do that? [00:45:31] Speaker 03: Or can they just say this is the only study we could find that's relevant at all, but it's the only one we have. [00:45:37] Speaker 03: It's not perfect, but we're gonna rely on it. [00:45:40] Speaker 01: Your Honor, the concrete mixer data was also consistent with the agency's analysis of the Blanco study, which suggested that taking these breaks throughout the day was likely to combat fatigue at the end of the day. [00:45:54] Speaker 01: And therefore, the agency considered all of these pieces of evidence together. [00:45:58] Speaker 03: Did Blanco say it doesn't matter how much exertion is involved during those days? [00:46:04] Speaker 01: Your Honor. [00:46:04] Speaker 03: For a study for a non-still-working but non-driving break, [00:46:12] Speaker 03: Does the amount of exertion, the amount of physical exertion involved matter? [00:46:19] Speaker 01: Your Honor, so the agency explained that Blanco says that taking a break from the driving task is what's producing this risk. [00:46:25] Speaker 03: But what kind of breaks was Blanco thinking about? [00:46:28] Speaker 01: Your Honor, Blanco involves a number of different types of breaks, some that include rest with work and some that just include on-duty work, some that are off-duty. [00:46:37] Speaker 01: What kinds of on-duty work? [00:46:40] Speaker 01: I don't remember the specifics, Your Honor, but it's similar to what the agency is discussing here. [00:46:46] Speaker 01: And looking at Blanco, the agency looking at Blanco in conjunction with the consistent concrete mixer data, which allowed this before and after comparison, the agency exercised its discretion in weighing the evidence here to reach its conclusion. [00:47:02] Speaker 01: Your Honors, if there are no further questions, we would ask that this court deny the position for review. [00:47:36] Speaker 06: It pleased the court. [00:47:37] Speaker 06: My name is Paul D. Cullen Jr. [00:47:40] Speaker 06: and I represent the Owner Operator Independent Drivers Association. [00:47:43] Speaker 06: This is a trade association of 150,000 small business truckers from across the country. [00:47:50] Speaker 06: In my limited time, I'd like to focus on the 30-minute rest break rule that's of particular interest to members who are mostly long-haul drivers. [00:47:59] Speaker 06: FMCS [00:48:00] Speaker 06: rule was more than rationally based to deal with two negative safety consequences of the prior rule that was described in OIT as comments and its studies and the testimony of its drivers of the listening sessions that FMCSA held during the rule make. [00:48:19] Speaker 06: Those two negative consequences are, one, drivers are being forced to stop in unsafe locations to comply with the rule, and the second was [00:48:30] Speaker 06: The rule extended the workday, causing more stress and pressure to complete their work in the resulting shorter time later in the day. [00:48:42] Speaker 06: Now, why are drivers parking in unsafe places? [00:48:46] Speaker 06: There's a major problem with truck parking across the country. [00:48:50] Speaker 06: Although it's a 30-minute rule, it can take up to an hour or more to find a place to park. [00:48:57] Speaker 06: and therefore it becomes a 60 or 90 minute break out of their day. [00:49:03] Speaker 06: But if they're unable to find truck parking, which is a frequent occurrence, then they will stop on the side of the road or on an exit ramp in order to not be moving and violate the rest break provision. [00:49:19] Speaker 06: Taking 30, 60, 90 minutes out of a driver's schedule pressures them [00:49:26] Speaker 06: and adds to their stress to work in the remaining part of the 14-hour day, pushing their work later in the day. [00:49:35] Speaker 06: And drivers have been observed speeding, driving unsafely, driving in rush hour traffic or conditions they would otherwise choose to wait out because their workday has been made shorter. [00:49:53] Speaker 06: And they have to accomplish the same amount of work [00:49:56] Speaker 06: The rule often requires, in that first eight hours, drivers to stop when they're not tired. [00:50:03] Speaker 06: And because they stop when they're not tired, and it takes that 60 or 90 minutes out of their schedule, then they have less discretion to stop later in time when they are tired. [00:50:18] Speaker 06: And this new rule [00:50:24] Speaker 06: is a little less one size fits all than the old rule, giving the driver the flexibility to make decisions to work when they can and rest when they need to. [00:50:37] Speaker 06: These were the trackers who kept the engine of our economy going for the last two years. [00:50:42] Speaker 06: And the rule recognizes the role of drivers to make decisions to operate more safely on the road. [00:50:49] Speaker 05: Is it really a question of flexibility [00:50:52] Speaker 05: as opposed to a question of what is the more important safety trigger, the time driving or the time working? [00:51:04] Speaker 05: It's an eight hour rule either way. [00:51:07] Speaker 06: The time off from driving. [00:51:14] Speaker 06: So if a driver can comply with the rule, [00:51:19] Speaker 06: As your honor described, maybe they go to the restroom or get something to eat. [00:51:26] Speaker 06: They can extend, or other activities include tying down, making sure the load is tied down properly. [00:51:35] Speaker 06: The drivers who use such equipment have to do that every two hours. [00:51:41] Speaker 06: They may be filling out paperwork. [00:51:43] Speaker 03: All right, some people have to stop every two hours to check how loads are tied down. [00:51:48] Speaker 03: Is that what you just said? [00:51:50] Speaker 03: So they have to hunt for places to pull over and do that too. [00:51:54] Speaker 03: Sounds like knowing where to pull over is part of the job, huh? [00:52:00] Speaker 06: I'm sorry? [00:52:01] Speaker 03: Sounds like knowing where to pull over in advance is probably part of the job. [00:52:05] Speaker 06: Well, it certainly is, but there are many instances where drivers are sent where they've never been before. [00:52:10] Speaker 06: And there are many places where parking is at a great shortage. [00:52:14] Speaker 06: So even if you know, okay, I know there's a truck stop down the road. [00:52:17] Speaker 06: Well, if it's full, then you're, [00:52:20] Speaker 06: you're driving on a longer period of time to find a place to park, try to find a safe place. [00:52:28] Speaker 06: The negative consequences reported into the record by the client and its members are more absolutely justified in our rational basis to support the flexibility. [00:52:48] Speaker 07: Thank you. [00:52:48] Speaker 07: Thank you, Your Honor. [00:53:03] Speaker 04: Just a few quick points. [00:53:06] Speaker 04: On the concrete mixer analysis, what the agency said about the concrete mixers is that FMCSA did not claim that the analysis is definitive or that the population of concrete mixers is representative of all short-haul operations. [00:53:22] Speaker 04: That's on Joint Appendix 268. [00:53:25] Speaker 04: And to the extent that the analysis of the changes in the short haul exemption did mention the brake aspect of the Blanco study. [00:53:35] Speaker 04: That was in discussing the 30-minute brake requirement. [00:53:38] Speaker 04: So in addition to being exempt from logging their duty status, short haul drivers do not need to take the 30-minute brake. [00:53:47] Speaker 04: And there was a discussion in the discussion of the short haul exemption about the fact that now [00:53:52] Speaker 04: drivers who drive between 12 and 14 hours or the longer radius will not need to take the 30-minute break. [00:53:59] Speaker 04: So in that context of discussing the 30-minute break and how the 30-minute break interacted with the changes to the short haul exemption, the agency did talk about the break part of the Blanco study. [00:54:11] Speaker 04: But just in justifying [00:54:14] Speaker 04: whether extending the workday of short-haul drivers would have an effect on safety due to driving later in the workday, it did not justify that extension based on breaks. [00:54:26] Speaker 04: Finally, on the point on breaks, the agency did [00:54:30] Speaker 04: Note that on the 30 minute break requirement, the agency in stating that it thought that drivers would continue to take breaks did state that those breaks may be shorter than 15 minutes or involve non-driving work. [00:54:48] Speaker 04: and it also stated that it did not think that drivers who drove less than eight hours would amass fatigue so it was not um depending on those drivers taking breaks it just did not seem to consider that there was a fatigue element to driving up to eight hours and unless there's any [00:55:12] Speaker 04: further questions, we would ask you to vacate the short haul exemption and 30 minute break requirement changes in the final rule. [00:55:20] Speaker 04: Thank you. [00:55:22] Speaker 02: So we will take that petition by petitioners under review and move on to the next case.