United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued March 8, 2002 Decided July 26, 2002
No. 01-1118
Darrell Andrews Trucking, Inc.,
Petitioner
v.
Federal Motor Carrier Safety Administration,
Respondent
On Petition for Review of an Order of the
Federal Motor Carrier Safety Administration
Henry E. Seaton, III argued the cause for petitioner.
With him on the briefs were James E. Scapellato and John T.
Husk.
Robert Digges, Jr. and Erika Z. Jones were on the brief for
amicus curiae American Trucking Associations, Inc. in sup-
port of petitioner.
H. Thomas Byron, III, Attorney, U.S. Department of
Justice, argued the cause for respondent. On the brief were
Robert S. Greenspan and August E. Flentje, Attorneys. Ed-
ward R. Cohen, Attorney, entered an appearance.
Before: Ginsburg, Chief Judge, Rogers and Garland,
Circuit Judges.
Opinion for the Court filed by Circuit Judge Garland.
Garland, Circuit Judge: Darrell Andrews Trucking, Inc., a
commercial motor carrier, petitions for review of an order of
the Federal Motor Carrier Safety Administration (FMCSA)
assigning Andrews a "conditional" safety rating. The agency
gave Andrews that rating because it violated a regulation
requiring carriers to maintain all documents that support its
drivers' records of duty status. The FMCSA found that
Andrews removed its drivers' toll receipts from driver-specific
files, where they could be used to verify the number of hours
a driver was on the road, and commingled them with the
receipts of all other drivers so that the tolls could not be used
for verification. Andrews challenges the FMCSA's decision
on a number of grounds, including a claim that the agency
improperly changed its original interpretation of the record-
keeping regulation. We reject that challenge and all of the
others but one. We remand the case to the agency for
consideration of the sole issue that it failed to address below.
I
Congress has directed the Secretary of Transportation to
prescribe regulations establishing a procedure for determin-
ing the safety fitness of the owners and operators of commer-
cial motor vehicles. 49 U.S.C. s 31144(b); see MST Express
v. Department of Transp., 108 F.3d 401, 402 (D.C. Cir. 1997).
The Secretary has delegated that responsibility to the
FMCSA. 49 C.F.R. s 1.73.1 Pursuant to Part 385 of its
__________
1 Motor carriers were initially regulated by the Interstate Com-
merce Commission. Motor Carrier Act, Pub. L. No. 74-255, 49
Stat. 543 (1935). In 1966, Congress transferred regulatory authori-
ty to the Department of Transportation, which delegated it to the
regulations, the FMCSA assigns motor carriers one of three
possible safety ratings: "satisfactory," "conditional," or "un-
satisfactory." 49 C.F.R. s 385.3; see id. s 385.7 (listing
factors considered in determining safety ratings, including the
frequency of accidents and the frequency and severity of
regulatory violations); see generally MST Express, 108 F.3d
at 402-03.2 The agency conducts compliance reviews, "on-site
examination[s] of motor carrier operations," in order "to
determine whether a motor carrier meets the safety fitness
standard" and which rating it should be assigned. 49 C.F.R.
s 385.3; see id. s 385.9.
To ensure that truck drivers are awake and alert on the
road, Congress has also directed the Secretary of Transporta-
tion to prescribe the maximum number of hours they may
operate their vehicles in a given time period. See 49 U.S.C.
s 31502(b). To implement that directive, the FMCSA has
promulgated regulations that fix maximum driving times, 49
C.F.R. s 395.3, and require each driver to keep a record of
duty status (RODS)3 that records his or her driving times for
each 24-hour period, id. s 395.8. In order to permit the
FMCSA to ensure compliance with the maximum-hours limi-
tations, the regulations further require each motor carrier to
"maintain records of duty status and all supporting docu-
__________
Federal Highway Administration (FHWA), which, in turn, promul-
gated the regulations discussed below. The FMCSA, which has
now taken over those responsibilities, was created by the Motor
Carrier Safety Improvement Act of 1999, Pub. L. No. 106-159, 113
Stat. 1748. See 49 C.F.R. s 1.73. For the sake of convenience, we
will refer to both the FMCSA and its predecessor agencies as the
FMCSA.
2 Although "a carrier that receives a conditional rating is permit-
ted to continue its normal operations," insurance companies use the
ratings and shippers consult them when selecting carriers. MST
Express, 108 F.3d at 403. A carrier that receives an unsatisfactory
rating may not transport certain hazardous materials or more than
15 passengers. Id. at 403-04 (citing 49 C.F.R. s 385.13).
3 For convenience, we will use the abbreviation RODS to refer to
both "record of duty status" and "records of duty status."
ments for each driver it employs for a period of six months
from the date of receipt." 49 C.F.R. s 395.8(k)(1).
On November 9, 2000, during an on-site compliance review,
FMCSA investigators determined that Andrews had violated
agency regulations. The investigators found maximum-hours
violations as well as false RODS. Compliance Review, J.A. at
48-49, 55, 57-58. In addition, they cited Andrews for failing
to properly maintain supporting documents for the RODS.
Specifically, the investigators noted that, although Andrews
"receives [an] envelope containing each driver's expenses (toll
receipts, fuel receipts, CAT scale receipts, ...)," it separates
out the toll receipts and files them "all together" with those of
the other drivers. J.A. at 51. The result, the investigators
said, is that the "carrier is not able to cross reference toll
receipts back to the driver's RODS." Id. Moreover, if the
toll receipts had been maintained as received, the investiga-
tors believed that "more falsification would have been discov-
ered." J.A. at 55. Based on Andrews' treatment of the toll
receipts, the investigators cited the carrier for violating
s 395.8(k)(1), the recordkeeping regulation. As a conse-
quence of that violation, together with an unrelated citation
for an excessively high accident rate, the compliance review
assigned Andrews the lowest of the three possible safety
ratings: "unsatisfactory." J.A. at 49.
Andrews sought administrative review before the FMCSA.
The carrier conceded that it maintained the toll receipts in
the ordinary course of its business. In re Darrell Andrews
Trucking, Inc., No. 2001-8686, slip op. at 8 (FMCSA Jan. 19,
2001). Andrews argued, however, that the receipts were not
"supporting documents" within the meaning of s 395.8(k)(1),
because it did not use them to verify the information in its
drivers' RODS. It further contended that, even if the toll
receipts were supporting documents, the regulation did not
require that such documents be kept in a manner that
permitted their correlation with the driver to whom they
corresponded.
The FMCSA disagreed. First, it concluded that, under
s 395.8(k)(1), "supporting documents" include documents that
"can be used to verify information on the driver's records of
duty status"--not only those that the carrier actually does
use. Andrews Trucking, FMCSA slip op. at 9-10 (emphasis
added) (citing Regulatory Guidance for the Federal Motor
Carrier Safety Regulations, 62 Fed. Reg. 16,370, 16,425 (Apr.
4, 1997)). Second, the FMCSA thought it reasonable to
construe the maintenance requirement as requiring carriers
to maintain the documents in a usable condition. Id. at 10.
As did the investigators, the agency noted that although each
Andrews driver turns in a "trip envelope" that contains his or
her toll and other receipts, thereafter "the toll receipts are
removed and all filed together in one central location." Id. at
8. This " 'salad shooter' approach," the FMCSA held, "does
not comply with the spirit of the law and frustrates proper
enforcement." Id. at 11 (quoting In re A.D. Transport
Express, Inc., No. 00-05-296052, slip op. at 5 (FMCSA May
22, 2000), aff'd, A.D. Transport Express, Inc. v. United
States, 290 F.3d 761 (6th Cir. 2002)). In particular, it "frus-
trates an investigator[']s ability to connect the supporting
document (toll receipt) and the RODS," and leaves the inves-
tigator "unable to use the toll receipt to check for hours-of-
service or falsification violations of the driver." Id. at 8.
Finally, the agency concluded that prior compliance reviews
had put Andrews "on notice that [its] method of retention of
supporting documents (including toll receipts) does not con-
form to the regulatory requirements." Id. at 9.
Although the FMCSA upheld Andrews' s 395.8(k)(1) viola-
tion, it raised the carrier's overall safety rating to "condition-
al" because it found that one of the accidents on its record
had been non-preventable. Id. at 11-13. Andrews now
petitions for review of the determination that it violated
s 395.8(k)(1). See 28 U.S.C. s 2344.
II
This court must uphold a decision of the FMCSA unless it
is "arbitrary, capricious, an abuse of discretion, or otherwise
not in accordance with law." 5 U.S.C. s 706(2)(A); El Conejo
Americano of Texas, Inc. v. Department of Transp., 278 F.3d
17, 19-20 (D.C. Cir. 2002). We accord "substantial deference
to [an] agency's interpretation of its own regulations," Thom-
as Jefferson Univ. v. Shalala, 512 U.S. 504, 512 (1994), and
will affirm the FMCSA's interpretation of one of its regula-
tions unless "it is plainly erroneous or inconsistent with the
regulation itself." Corridor H Alternatives, Inc. v. Slater,
166 F.3d 368, 372 (D.C. Cir. 1999) (internal quotation marks
omitted); see Auer v. Robbins, 519 U.S. 452, 461 (1997).
Andrews raises five main challenges to the FMCSA's deci-
sion. According to Andrews, the requirement that it main-
tain each driver's toll receipts, and that it refrain from
combining them with the receipts of all other drivers: (i)
constitutes a change in the original regulation, promulgated
without the required notice and opportunity for comment; (ii)
even if not a change, was applied to Andrews without fair
notice; (iii) imposes increased and unapproved recordkeeping
burdens, in violation of the Paperwork Reduction Act, 44
U.S.C. ss 3501-3520; (iv) was applied to Andrews without
adherence to proper adjudicatory procedures; and (v) was
imposed without consideration of a substantial countervailing
consideration. We consider Andrews' five challenges below.4
III
Andrews' first argument is that the interpretation of
s 395.8(k)(1) upon which the FMCSA based its decision con-
stitutes a substantial change in the agency's construction of
that regulation, and that it was unlawful for the agency to
make such a change without promulgating a new regulation
pursuant to the notice and comment provisions of the Admin-
istrative Procedure Act (APA), 5 U.S.C. s 553(c). See Appa-
lachian Power Co. v. EPA, 208 F.3d 1015, 1024 (D.C. Cir.
2000) ("It is well-established that an agency may not escape
the notice and comment requirements ... by labeling a major
substantive legal addition to a rule a mere interpretation.");
Paralyzed Veterans of Am. v. D.C. Arena L.P., 117 F.3d 579,
__________
4 Andrews raises a number of additional arguments, or variants
on the above arguments, which we have considered and rejected but
which are too insubstantial for extended discussion.
586 (D.C. Cir. 1997) ("Once an agency gives its regulation an
interpretation, it can only change that interpretation as it
would formally modify the regulation itself: through the
process of notice and comment rulemaking."). To succeed
with this argument, Andrews must show that the "agency has
given its regulation a definitive interpretation, and later sig-
nificantly revise[d] that interpretation." Alaska Prof'l Hunt-
ers Ass'n v. FAA, 177 F.3d 1030, 1034 (D.C. Cir. 1999).
Andrews contends that two elements of the FMCSA's
decision represent significant changes from the agency's pri-
or, definitive position. Those are the agency's determinations
that: (a) toll receipts that the carrier does not itself use for
verification of RODS are "supporting documents" that the
carrier must maintain; and (b) the carrier must not only
preserve the toll receipts but also must refrain from removing
them from individually identifiable files and combining them
in a fashion that makes correlation with individual drivers
impossible. We consider each of these determinations below.
A
The FMCSA concluded that Andrews' toll receipts are
"supporting documents" because they could be used by the
carrier and the agency to check the accuracy of the drivers'
RODS. Andrews contends that the term applies only to
documents that a carrier actually uses to verify the RODS.
Because Andrews does not use toll receipts in its verification
process, the carrier contends that it is not required to main-
tain them.
Section 395.8(k) states:
Retention of driver's record of duty status. (1) Each
motor carrier shall maintain records of duty status and
all supporting documents for each driver it employs for a
period of six months from the date of receipt.
49 C.F.R. s 395.8(k). The regulation does not define "sup-
porting documents" and, as a consequence, we are bound to
defer to a reasonable agency interpretation. The agency
interprets the term as encompassing any document that could
be used to support the RODS, and notes that a toll receipt
(because it is normally date- and time-stamped) is such a
document. Although this may not be the only plausible
interpretation of "supporting document," it is hardly unrea-
sonable. The agency further contends that to adopt An-
drews' interpretation--which would permit each carrier to
exclude from the coverage of s 395.8(k)(1) any document it
chose simply by not using it for verification--would eviscerate
enforcement of the maximum-hours regulations. While that
may be an overstatement of the consequence of adopting
Andrews' view, the agency is nonetheless correct in arguing
that its own view is consistent with the regulatory purpose
and facilitates the agency's ability to ensure the veracity of
the RODS and the enforcement of the limits on driving time.
We thus conclude that the FMCSA's current interpretation
of s 395.8(k)(1) is a reasonable construction of its regulation.
Nonetheless, that interpretation might still trigger the re-
quirements of notice and comment if it represents a signifi-
cant change from a previous, definitive interpretation. We
are unable, however, to discern such a change.
In support of its contention that the FMCSA previously
interpreted "supporting documents" as limited to those actu-
ally "used by" a carrier, Andrews points to a passage from a
regulatory guidance that the agency issued in 1993 and
repeated verbatim in 1997:
Supporting documents are the records of the motor
carrier which are maintained in the ordinary course of
business and used by the motor carrier to verify the
information recorded on the driver's record of duty sta-
tus. Examples are: Bills of lading ..., weight/scale
tickets, fuel receipts, fuel billing statements, [and] toll
receipts....
Regulatory Guidance for the Federal Motor Carrier Safety
Regulations, 58 Fed. Reg. 60,734, 60,761 (Nov. 17, 1993),
repeated in 62 Fed. Reg. 16,370, 16,425 (Apr. 4, 1997) (empha-
sis added). In focusing on this passage, however, Andrews
neglects the two sentences that immediately follow, and that
appear to adopt a "can be used" (or "could be used") interpre-
tation:
Supporting documents may include other documents
which the motor carrier maintains and can be used to
verify information on the driver's records of duty status.
Id. (emphasis added). The regulatory guidance thus offers
some support for the positions of both Andrews and the
FMCSA, and can only be described as--at best--ambiguous.
It cannot be said to mark a definitive interpretation from
which the agency's current construction is a substantial de-
parture.
In further support of its argument, Andrews points to a
Notice of Proposed Rulemaking (NPRM) that the FMCSA
issued in 1998 but never finalized in a promulgated rule. The
NPRM was issued in response to Congress' directive, in the
Hazardous Materials Transportation Authorization Act of
1994, Pub. L. No. 103-311, s 113, 108 Stat. 1673, that the
FMCSA clarify the meaning of "supporting document" and
list those supporting documents that a carrier is required to
maintain. The statute directed the FMCSA to "prescribe
regulations amending part 395 of [C.F.R.] title 49," and to
include "[a] provision specifying the number, type, and fre-
quency of supporting documents that must be retained by a
motor carrier." Id. s 113(a)(1), (b)(2). For purposes of those
new regulations, the legislation defined a supporting docu-
ment as "any document that is generated or received by a
motor carrier or commercial motor vehicle driver in the
normal course of business that could be used, as produced or
with additional identifying information, to verify the accuracy
of a driver's record of duty status." Id. s 113(c) (emphasis
added). The congressional directive was not self-executing
(and did not indicate whether it was restating or changing the
agency's existing interpretation). Hence, because the
FMCSA never promulgated the contemplated regulation, the
statutory definition does not govern this case. It does,
however, provide support for the proposition that the agen-
cy's interpretation of "supporting document," as a document
that "could be used" to verify the accuracy of a RODS, is
reasonable.
Needless to say, this is not the aspect of the NPRM to
which Andrews draws our attention. Instead, it contends
that statements in the notice show that the FMCSA under-
stood its original 1982 interpretation of supporting documents
as limited to documents actually used by the carrier. But the
1998 NPRM is no less ambiguous (or, perhaps better put, no
less self-contradictory) than the guidances that preceded it.
The NPRM does state, as Andrews notes, that:
The FMCSA intended that the term "supporting docu-
ment" refer to those specific documents, and only those
specific documents, that a motor carrier used in its
internally-developed system or program to verify the
accuracy of the driver's duty activities. It was not meant
to encompass all records, but only those that were,
indeed, used by the motor carrier, to verify the dates,
times, and locations the driver recorded.
Hours of Service of Drivers; Supporting Documents, 63 Fed.
Reg. 19,457, 19,459 (Apr. 20, 1998) (emphasis added). But
two sentences later, the NPRM destroys this clarity by
stating:
The regulatory guidance stated that supporting docu-
ments are the records of the motor carrier maintained in
the ordinary course of business that are used, or could be
used, by the motor carrier to verify the information
recorded on a driver's record of duty status.
Id. (emphasis added). Moreover, the NPRM then goes on to
state that it is "proposing to use the statutory definition of
supporting documents as provided by Congress in the Act,"
id.--i.e., the "could be used" definition--and declares that,
because "since 1982, [the FMCSA] has required that all
supporting documents must be collected and kept for six
months[,] [t]his collection of documents ... is not a new
paperwork burden." Id. at 19,464. In short, although "am-
biguous" may be too charitable a word to describe these
conflicting passages in the NPRM, the one thing that is clear
is that the document cannot be regarded as a definitive
acknowledgment that the agency had previously regarded
"used by" rather than "could be used" as the appropriate
interpretation of "supporting documents."
Finally, we note that, while its Federal Register notices are
less than clear, the agency's prior informal adjudication on
this issue is quite clear and completely in accord with the
view of "supporting documents" relied upon by the FMCSA
below. In In re National Retail Transportation, Inc., No.
R1-92-03 (FMCSA Sept. 12, 1996), the FMCSA rejected a
carrier's claim, identical to that of Andrews, that the term
"supporting documents" should be limited to "those that the
motor carrier uses--instead of could have been used--for log
verification." Id., FMCSA slip op. at 6. If supporting docu-
ments were defined as the carrier urged, the FMCSA contin-
ued, "motor carriers could always escape responsibility for
retaining them merely by saying that they do not use them."
Id. Instead, the agency said, s 395.8(k)(1) "provided [the
carrier] with reasonable notice of a duty to keep ordinary
business documents so that the record of duty status of its
drivers could be verified"--specifically including documents
containing "information such as mileage, origin, destination,
stops, expenses, [and] tolls." Id. at 5 (emphasis added).5
In sum, in the midst of the period in which the FMCSA
issued the ambiguous guidances relied upon by Andrews, it
issued a clear decision that confirms the interpretation ap-
plied by the agency in this case. Andrews is therefore unable
__________
5 Another FMCSA decision cited by Andrews, In re Ace Doran
Hauling & Rigging Co. (FMCSA Feb. 24, 2000), is inapposite.
That case involved the question of whether a motor carrier was
required to obtain and retain the toll receipts of drivers who, unlike
Andrews' drivers, were owner-operators rather than employees.
The agency concluded that "the supporting documents rule is not
applicable to toll receipts received by [Ace Doran's] owner operator
drivers since [Doran] does not reimburse them for highway tolls ...
and therefore does not, in the normal course of business, require
these drivers to submit toll receipts." Id., FMCSA slip op. at 2.
Here, by contrast, there is no dispute that Andrews does reimburse
its drivers, and does require them to submit toll receipts in the
ordinary course of its business.
to show that the decision below represents a substantial
change in the agency's construction of s 395.8(k)(1).
B
Andrews further contends that, even if toll receipts are
supporting documents and therefore must be maintained,
s 395.8(k)(1) does not require motor carriers to maintain
them in a way that permits the FMCSA to match them with
their corresponding drivers. Andrews argues that the
phrase, "shall maintain ... all supporting documents for each
driver," requires maintenance only and does not specify the
manner in which the documents must be maintained. The
agency, by contrast, argues that "maintain" is reasonably
construed to mean maintain in a usable condition: here, that
the carrier may not take documents that it receives in a
format that permits identification of individual drivers, and
then merge them so that the individual identifications are
lost. Once again, we find the agency's interpretation reason-
able.
Although s 395.8(k)(1) does not define "maintain," it is
hardly arbitrary to construe the regulation in light of its
purpose--which is to ensure "the enforceability of the hours
of service regulations and ... the protection to the public
which these regulations provide." Driver's Logs, 47 Fed.
Reg. 7702, 7702 (Feb. 22, 1982). If the carrier maintains the
toll receipts (which usually do not have the individual driver's
name on them) in the manner in which they arrive at its
office--i.e., in the individual driver's trip envelope--it is possi-
ble for both the carrier and the FMCSA to enforce those
regulations. If, instead, Andrews removes the receipts and,
without copying or otherwise marking them, combines them
with the receipts of all other drivers, correlation with individ-
ual drivers becomes impossible and the purpose of the regula-
tion is frustrated. It is thus not unreasonable for the agency
to read "maintain" in a way that bars the latter practice.
Andrews seeks support for its position in the following
passage from the 1993 and 1997 guidances cited above:
Supporting documents may include other documents
which the motor carrier maintains and can be used to
verify information on the driver's records of duty status.
If these records are maintained at locations other than
the principal place of business but are not used by the
motor carrier for verification purposes, they must be
forwarded to the principal place of business upon a
request by an authorized representative of [the FMCSA]
or State official within 2 business days.
58 Fed. Reg. at 60,761, repeated in 62 Fed. Reg. at 16,425
(emphasis added). Andrews contends that the italicized
clause recognizes that a carrier may keep records that it does
not use for verification, like the toll receipts in this case, at a
location remote from the place at which it keeps the driver's
RODS. But while Andrews is correct in concluding that
supporting documents may be removed from their original
location, the passage also makes clear that the documents
must quickly be returned upon the request of an FMCSA
investigator. And since the investigator's purpose in request-
ing return is to permit verification of the information in the
driver's RODS, it is not unreasonable for the agency to insist
that, if the documents are removed, they must be handled in
a fashion that permits them to be matched with their original
driver.
Andrews also contends that the FMCSA's decision in this
case amounts to the de facto adoption of a recordkeeping
requirement considered but rejected in the 1998 NPRM.
Like that requirement, Andrews asserts, the FMCSA deci-
sion requires the carrier to "toe tag" (label by driver) every
supporting document, create a system of cross-indexing, and
then file each document accordingly. But that is not an
accurate description of the decision below. This case involves
a document (a toll receipt) that Andrews concedes it receives
in the ordinary course of business, and that it receives in a
manner (inside the driver's trip envelope) that permits identi-
fication of the driver who submitted it. All the FMCSA's
decision requires is that Andrews retain such documents (for
six months) and refrain from destroying the agency's ability
to match them with their associated drivers by taking them
out of their original envelopes and tossing them into a com-
mon pile. In short, the FMCSA's decision does not require
Andrews to index these documents; it merely bars the carrier
from de-indexing them (at least without copying or labeling
them first).6
Our conclusion, that the FMCSA has reasonably interpret-
ed s 395.8(k)(1) as barring Andrews from irretrievably com-
mingling its drivers' toll receipts, is in accord with the views
of the only other circuit to have considered the question. In
A.D. Transport Express, Inc. v. United States, the Sixth
Circuit considered the FMCSA's conditional rating of a motor
carrier that, like Andrews, treated its drivers' toll receipts in
a fashion that prevented their comparison with the associated
driver's RODS. 290 F.3d 761 (6th Cir. 2002), aff'g In re A.D.
Transport Express, Inc., No. 00-05-296052 (FMCSA May 22,
2000). A.D. Transport received a driver's packet from each
driver, containing (inter alia) the driver's toll receipts, bills of
lading, fuel receipts, and logs. When the payroll department
finished with the toll receipts, it "lumped" the receipts for all
its drivers "into one large envelope" for each month of the
year--making correlation of receipts and drivers impossible.
The FMCSA found A.D. Transport to have violated
s 395.8(k)(1), holding that "supporting documents must be
maintained by the carrier in a manner that will allow an
agency investigator to compare those documents to the
RODS." In re A.D. Transport, FMCSA slip op. at 5, quoted
in A.D. Transport, 290 F.3d at 766.
The Sixth Circuit affirmed, concluding that "the FMCSA's
interpretation of 49 C.F.R. s 395.8(k) is reasonable and con-
sistent with the language of the regulations." A.D. Trans-
port, 290 F.3d at 766. It found that A.D. Transport's practice
"rendered the toll receipts nearly useless in verifying a
driver's RODS," and that while it was semantically possible to
__________
6 Similarly, in A.D. Transport, discussed below, the FMCSA
emphasized that the toll receipts at issue there were "already
grouped nicely together by driver" when the carrier received them.
In re A.D. Transport, FMCSA slip op. at 6. It was only the
"carrier[']s own overt action that resulted in the separation of the
supporting documents from the RODS without first taking proper
steps to cross reference the documents back to the driver's RODS."
Id.
construe "maintain" as requiring nothing more than what
A.D. Transport did, the FMCSA's interpretation better
served the statutory purpose of promoting the safe operation
of commercial motor vehicles. Id. at 767. Finally, the court
also held that, because the FMCSA's decision "did nothing
more than interpret an existing regulation" and "did not
change any existing law or policy," it "was an interpretative
rule exempt from the notice and comment requirements of
the Administrative Procedure Act." Id. at 768. We are in
accord with the views of the Sixth Circuit, and therefore
reject the claim of the petitioner here.7
IV
Andrews' next argument is that, even if the FMCSA's
interpretation of s 395.8(k)(1) is reasonable and unchanged,
"Andrews had no fair notice that its satisfactory safety rating
was in jeopardy" for failing to maintain its drivers' toll
receipts in an identifiable fashion. Andrews Br. at 18. In
General Electric Co. v. EPA, we held that "[i]n the absence of
notice--for example, when the regulation is not sufficiently
clear to warn a party about what is expected of it--an agency
may not deprive a party of property by imposing civil or
criminal liability." 53 F.3d 1324, 1328-29 (D.C. Cir. 1995).8
As the discussion in Part III.A suggests, there is something
to Andrews' argument that the agency has been less than
clear as to whether the term "supporting documents" extends
__________
7 Andrews correctly notes that, although the Sixth Circuit opinion
does not mention it, the carrier in A.D. Transport, unlike Andrews,
used the toll receipts to verify the accuracy of its drivers' RODS.
See In re A.D. Transport, FMCSA slip op. at 2, 3. That fact,
however, goes only to the question of whether the toll receipts
should be characterized as "supporting documents," not to the
manner of their retention. As we have concluded that Andrews' toll
receipts are supporting documents regardless of whether they are
actually used for RODS verification, the Sixth Circuit's decision is
directly on point regarding how such documents must be main-
tained.
8 General Electric applies where the a party is deprived of
"property," or where "sanctions are drastic." Id. at 1328-29.
to records, like Andrews' toll receipts, that could be but are
not actually used by a carrier to verify its drivers' RODS.
Although the regulatory language may not itself be so unclear
as to implicate the General Electric rule, the self-
contradictory "clarifying" utterances of the agency could have
left a carrier confused about what was required of it. For
that, the agency has no one but itself to blame. Despite
Congress' 1994 direction that the FMCSA issue a regulation
elucidating the term's coverage, the agency has still inexplica-
bly failed to act.
Notwithstanding the ambiguity of the regulatory guidances,
however, the FMCSA's 1996 opinion in National Retail
Transportation was crystal clear on this point. It expressly
rejected the claim that supporting documents are only those a
motor carrier actually uses, and specifically listed tolls as the
kind of information included within the realm of "supporting
documents."9 Moreover, Andrews' early reaction to its 2000
citation strongly suggests that the employer was not in doubt
that s 395.8(k)(1) requires it to maintain toll receipts. The
carrier's petition for administrative review did not dispute
that toll receipts are supporting documents, but claimed only
that the regulation did not require that "all supporting docu-
ments [be] filed by each driver." J.A. at 7 (emphasis omit-
ted). Similarly, the affidavit of Andrews' safety director
acknowledged that "I retain toll receipts for at least six
months to comply with 49 C.F.R. 395.8(k)." Jones Aff. at 2
(J.A. at 14).10 Indeed, despite the legal arguments Andrews
__________
Because we conclude that Andrews received fair notice, we need not
decide whether the issuance of a "conditional" rating meets those
prerequisites.
9 Although Andrews contends that the FMCSA's decisions are not
widely available, it concedes that they are available on the FMCSA
website. Andrews Br. at 17 n.7. That is sufficient notice for a well-
represented regulated entity as intensely interested in the issue as
is Andrews.
10 Andrews did dispute that toll receipts are supporting docu-
ments in the brief it filed in support of its administrative appeal.
J.A. at 38.
raises here, the fact is that Andrews does retain its toll
receipts: the carrier was not downgraded for not having toll
receipts, but for refiling them in a manner that left them
useless.
The only remaining question, therefore, is whether An-
drews had sufficient notice that the FMCSA regarded An-
drews' practice of combining drivers' toll receipts as a viola-
tion of s 395.8(k)(1). On that point, this court has no doubt.
Under General Electric, an "agency's pre-enforcement efforts
to bring about compliance will provide adequate notice." 53
F.3d at 1329. And as the agency points out, Andrews was the
subject of many such efforts.
In response to the fair notice argument below, the FMCSA
held that Andrews "has previously been put on notice that
[its] method of retention of supporting documents (including
toll receipts) does not conform to the regulatory require-
ments," specifically citing Andrews' March 1997 compliance
review. Andrews Trucking, FMCSA slip op. at 9. In that
review, Andrews was cited for violating s 395.8(k)(1), because
its drivers had submitted "[f]alse reports of record of duty
status" and because "supporting documents are not identifi-
able to the driver[']s corresponding record of duty status."
J.A. at 62. The review went on to advise Andrews to "ensure
all documents supporting records of duty status (such as toll,
fuel[,] repair and other on-the-road expense receipts ...) ...
are identified to the corresponding drivers' record of duty
status." J.A. at 63 (emphasis added).11
Nor was March 1997 the first or last time Andrews was
warned prior to the instant citation. In Andrews' July 1991
compliance review, the FMCSA discovered ten instances in
__________
11 Andrews contends that it was entitled to regard this advice as
optional because it was listed in a part of the compliance review
sheet labeled "Recommendations." In light of the other instruc-
tions listed under the same heading, that was not a reasonable
reading. See J.A. at 63 (requiring Andrews, inter alia, to "ensure
all drivers are fully and properly qualified," "maintain all required
controlled substance testing records," and "ensure all drivers' rec-
ords of duty status are accurate").
which drivers had falsified their RODS. Administrative Rec-
ord (A.R.) doc. 12, at 2. Andrews was cited for not having "a
system to effectively control the drivers' hours of service."
Id. at 6. The investigators specifically noted: "Carrier has
change[d] his method of filing documents since the last prose-
cution. Toll records are thrown in a box." Id. at 7. There-
after, in a September 1993 compliance review, Andrews was
again cited for allowing drivers to submit "[f]alse reports of
records of duty status," and for allowing drivers to drive in
excess of the maximum-hour limitations. A.R. doc. 14, at 2.
The FMCSA specifically noted that Andrews had "reduce[d]
the probability of identifying a false record of duty status by
mainta[in]ing toll receipts by payroll period, not by driver."
Id. at 5. Finally, in a December 1997 compliance review, the
investigators once again noted that Andrews had "taken the
toll tickets from the driver's expense envelope and placed
these documents in a box with other driver[s'] toll tickets."
A.R. doc. 18, at 6. This meant, the investigators said, that
the toll receipts could not "be used to check the driver's logs
for accuracy." It "appear[ed]," they continued, that "the
carrier has taken steps to make it difficult to determine if the
drivers are in a specific location at a certain time." Id.12
Nor were these citations Andrews' only notice of the
FMCSA's interpretation of the recordkeeping requirements.
As we have discussed above, six months before it issued the
citation to Andrews, the FMCSA held in A.D. Transport that
a carrier's practice of removing toll receipts from its individu-
al drivers' packets and combining them in large envelopes
__________
12 Andrews urges us not to consider these prior compliance
reviews, on the ground that they were not relied upon by the
FMCSA below and were outside the administrative record. An-
drews is wrong on both counts. In the FMCSA opinion, the
associate director for motor carriers stated: "I have reviewed the
prior CRs [compliance reviews] conducted on this carrier and
conclude that Darrell Andrews Trucking has previously been put on
notice...." Andrews Trucking, FMCSA slip op. at 9. Moreover,
the certified index to the administrative record makes clear that the
compliance reviews of July 1991, September 1993, March 1997, and
December 1997 were all part of that record. See J.A. at 3-4.
violated s 395.8(k)(1) and warranted a conditional safety rat-
ing. In re A.D. Transport, FMCSA slip op. at 6. Thus, even
if nothing else did, A.D. Transport put Andrews squarely on
notice that it should cease the filing practices against which it
had been repeatedly warned throughout the 1990s. This is
not a case in which a regulated entity required "extraordinary
intuition or ... the aid of a psychic" to anticipate being found
in violation of a regulation. United States v. Chrysler Corp.,
158 F.3d 1350, 1357 (D.C. Cir. 1998). Rather, it is a case in
which the carrier persisted in its ways despite clear and
repeated warnings from the relevant government agency.
Andrews, therefore, can find no refuge in the doctrine of fair
notice.
V
Andrews also argues that the requirement that toll receipts
be retained, and retained in a way that permits the FMCSA
to match them to its drivers' RODS, violates the Paperwork
Reduction Act, 44 U.S.C. ss 3501-3520. That statute bars
the enforcement of a recordkeeping requirement unless it is
first approved by the Office of Management and Budget
(OMB). Id. ss 3507, 3512. The FMCSA does not dispute
the application of the Act to the recordkeeping requirements
of s 395.8(k)(1), but argues that the statute has been satisfied
because OMB approved the regulation when it was promul-
gated in 1982. See Driver's Logs, 47 Fed. Reg. 53,383, 53,383
(Nov. 26, 1982); see also 63 Fed. Reg. at 19,464 (referring to
past OMB approvals of s 395.8(k)(1) recordkeeping require-
ments).
Andrews contends that the original approval by OMB is
insufficient because the FMCSA has materially changed the
meaning of the regulation, and that the new meaning amounts
to a new recordkeeping burden regardless of whether the
agency acknowledges the point by promulgating a new rule.
See 44 U.S.C. s 3507(h)(3) (providing that "an agency may
not make a substantive or material modification to a collection
of information after such collection has been approved by
[OMB], unless the modification has been submitted to [OMB]
for review and approval"). This argument has little traction,
however, as we have already accepted the agency's position
that its current interpretation does not depart from the
original. Andrews might nonetheless prevail if it could dem-
onstrate that, whatever the FMCSA thought in 1982, OMB
understood the regulation differently. But this Andrews
cannot do either, as the 1982 announcement of OMB approval
did not describe what documents either agency thought were
within the scope of the regulation. See 47 Fed. Reg. at
53,383.
In a related vein, Andrews argues that the FMCSA's latest
estimate of the burden posed by its current interpretation is
substantially higher than its estimate of the burden of the
original rule. If true, this could suggest that the agency is
indeed requiring more than it did when the rule was first
promulgated.13 The cited estimates, however, do not support
Andrews' argument.
Once again, the document Andrews points to is the 1998
NPRM. There, the FMCSA stated that it believed the
burden imposed by fully implementing the Hazardous Materi-
als Transportation Authorization Act of 1994 "would be more
than is currently expected" and "at least 219,095,423 hours."
63 Fed. Reg. at 19,465. Although the NPRM did not state
the "currently expected" burden, Andrews points to a roughly
contemporaneous submission by the Department of Transpor-
tation that put the figure at 14,284,339 hours.14 Andrews
contends that the difference results from the Hazardous
Materials Act's requirement that all documents that "could be
used" to verify RODS must be retained and indexed, while
__________
13 However, because the paperwork burden of a regulation is
measured by computing the total number of "burden hours" it
imposes on a nationwide basis, an increased burden may only
indicate that there are now more carriers, more drivers, and more
documents of the same kind than there were in 1982. See, e.g.,
FHWA, Paperwork Reduction Act Submission, Supporting State-
ment at 6 (July 30, 1998).
14 FHWA, Paperwork Reduction Act Submission, Supporting
Statement at 6.
the original regulation required nothing more than retention
of those documents that actually are used to verify RODS.
The 1998 NPRM, however, does not corroborate Andrews'
argument. The estimated 219,095,423-hour burden was not
for maintaining, in the manner in which they were received
by the carrier, all documents that could be used to verify a
driver's RODS. To the contrary, the agency indicated that
merely defining supporting documents as the 1994 Act de-
fined them (i.e., as those that "could be" used) "is not a new
paperwork burden." Id. at 19,464. The "collection of docu-
ments" under that definition, the FMCSA said, "has been
calculated into past paperwork burden approvals of the Office
of Management and Budget." Id. Rather, the 219-million-
hour burden was for a new rule the agency considered but did
not propose: a rule that would have required carriers to
"audit each one" of 23 supporting documents for a minimum
of five items, "compare the documents to the RODS," and
"fil[e] and stor[e] the 23 records." Id. at 19,465. That was
the task the agency said was "more than is currently expect-
ed" and that it rejected as too burdensome. Id. And as we
have explained in Part III.B above, that is not the task
required by the decision below.
In sum, because the FMCSA's decision in this case relies
upon a reasonable interpretation of a regulation previously
cleared by OMB under the Paperwork Reduction Act, and
does not represent the imposition of a new rule or record-
keeping burden, the Act does not bar enforcement of the
interpretation against Andrews.15
VI
Andrews further contends that, in reaching its decision to
downgrade the carrier's safety rating, the FMCSA violated
the procedural requirements of both the APA and the Consti-
tution. In particular, it contends that the FMCSA improper-
__________
15 For the same reason, we reject Andrews' assertion that the
FMCSA violated the Regulatory Flexibility Act, 5 U.S.C. ss 601-
612, by effectively issuing a new rule without undertaking a cost-
benefit analysis to determine the rule's impact on small business.
ly denied its request for an oral hearing and discovery.
These arguments require only brief mention.
Andrews argues that it was entitled to an oral hearing and
discovery by the provisions of 49 C.F.R. ss 386.35 and 386.43.
The FMCSA, however, held that those provisions do not
apply to the downgrading of a safety rating under Part 385,
but only to three specific types of proceedings under Part
386, none of which is at issue here. Andrews Trucking,
FMCSA slip op. at 3. This court has previously reached the
same conclusion. See MST Express, 108 F.3d at 405 (holding
that the procedures of Part 386 do not apply to a proceeding
to determine a carrier's safety rating, and that "a carrier that
disputes its safety rating is not entitled to an administrative
hearing"). Nor is there anything in the APA or any relevant
statute that requires these procedural incidents for informal
adjudications like this one. Accordingly, we are powerless to
order the agency to do more. See Vermont Yankee Nuclear
Power Corp. v. NRDC, 435 U.S. 519, 524 (1978); Hi-Tech
Furnace Sys., Inc. v. FCC, 224 F.3d 781, 789-90 (D.C. Cir.
2000); see also Trailways Lines, Inc. v. ICC, 766 F.2d 1537,
1546 (D.C. Cir. 1985) ("The conduct and extent of discovery in
agency proceedings is a matter ordinarily entrusted to the
expert agency in the first instance and will not, barring the
most extraordinary circumstances, warrant the Draconian
sanction of overturning a reasoned agency decision.").
Andrews' additional contention, that not providing an oral
hearing and discovery (principally regarding the unreliability
of toll records) violates the Due Process Clause of the Consti-
tution, is also groundless. Without deciding whether the
conditional safety rating at issue deprives Andrews of the
kind of protected interest that triggers application of the
clause, see Lepelletier v. FDIC, 164 F.3d 37, 45 (D.C. Cir.
1999), it is clear that Andrews did receive due process here.
The FMCSA citation put Andrews on notice of the charges,
Andrews had an opportunity to present its arguments
through written briefs, and the carrier similarly had an
opportunity to present evidence of the unreliability of toll
receipts by affidavit. Procedural due process requires no
more in this kind of administrative setting. See Lomak
Petroleum, Inc. v. FERC, 206 F.3d 1193, 1199-200 (D.C. Cir.
2000).
VII
Finally, we consider Andrews' argument that it was arbi-
trary and capricious for the FMCSA to downgrade the carri-
er's safety rating, based on its treatment of toll receipts,
when evidence shows that such receipts are unreliable. In
support, Andrews submitted an affidavit from its safety di-
rector, stating: "Toll receipts are not used to verify logs
because they have proven to be unreliable. On many occa-
sions authorities mass produce toll receipts in order to handle
peak traffic volumes. Consequently, drivers often have re-
ceipts that do not reflect the actual time the driver is at that
location." Jones Aff. at 2 (J.A. at 14). The FMCSA's
decision did not address Andrews' contention regarding the
reliability of toll receipts.
Andrews' argument is a substantial one, and requires an
answer from the agency. See Frizelle v. Slater, 111 F.3d 172,
177 (D.C. Cir. 1997) (concluding that an agency decision was
arbitrary because it did not respond to non-frivolous argu-
ments that could affect the agency's ultimate disposition). If
Andrews is correct, and toll receipts are in fact unreliable
(and misleading) records of the time drivers are actually on
the road, then it might well be arbitrary and capricious for
the agency to regard such worthless records as "supporting
documents" and to downgrade a carrier for failing to retain
them. Of course, we have no idea whether Andrews is
correct on this point. In National Retail Transportation, for
example, the agency rejected a similar argument on the
ground that there were serious flaws in the evidence of
unreliability offered by the motor carrier. National Retail
Transportation, FMCSA slip op. at 5-6. Perhaps that is the
case here as well. But without any explanation at all by the
agency, we cannot use that as a ground for affirming its
decision. See American Mun. Power--Ohio, Inc. v. FERC,
863 F.2d 70, 73 (D.C. Cir. 1988) ("[W]e cannot uphold the
agency's decision 'on the same basis articulated' where the
agency's decision articulates none." (quoting Burlington
Truck Lines, Inc. v. United States, 371 U.S. 156, 169 (1962))).
We must therefore remand the case so that the FMCSA may
answer this argument. See Iowa v. FCC, 218 F.3d 756, 759
(D.C. Cir. 2000) (remanding where agency failed to address
substantial argument).
VIII
We conclude that the FMCSA reasonably interpreted the
relevant regulation, provided Andrews with fair notice of that
interpretation, complied with the requirements of the Paper-
work Reduction Act, and afforded the carrier appropriate
process before downgrading its safety rating. However, be-
cause the agency failed to address a significant challenge to
the rationality of its decision in this case, we remand the case
to the agency for further proceedings consistent with this
opinion.
Remanded.