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 llth-hour risk.” Public Citizen Br. 50. We express no view on the validity of FMCSA’s statistical method, but we agree with Public Citizen that — once again — the agency offered no explanation for its decision during the rulemaking and failed even to respond to the petitioner’s argument in its brief. Although we apply a deferential standard of review to an agency’s use of a statistical model, we cannot uphold a rule based on such a model when an important aspect of its methodology was wholly unexplained. See U.S. Air Tour Ass’n, 298 F.3d at 1008 (<HOLDING>). 2. Public Citizen further contends that the
recognizing probable cause as complete defense to a claim of malicious prosecution in new york internal quotation marks and brackets omitted holding that when a models methodology is challenged the agency must provide a complete analytic defense quoting small refiner lead phasedown task force 705 f2d at 535 internal quotation mark omitted holding that an employer violates the nlra when it fails to provide information that is needed by the bargaining representative for the proper performance of its duties internal quotation marks omitted holding that the challenged conduct or statement must be directed at the familial relationship with knowledge that the statements or conduct will adversely affect that relationship internal quotation marks omitted holding that the ultimate focus of the inquiry into whether this court has jurisdiction under rcra is whether the agency action partakes of the fundamental characteristic of a regulation ie that it has the force of law quoting molycorp 197 f3d at 545 internal quotation mark omitted