United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 12, 2005 Decided December 2, 2005
No. 04-1233
ADVOCATES FOR HIGHWAY AND AUTO SAFETY,
PETITIONER
v.
FEDERAL MOTOR CARRIER SAFETY ADMINISTRATION,
RESPONDENT
Consolidated with
04-1236, 04-1418
On Petitions for Review of a Final Rule of the
United States Department of Transportation
Adina H. Rosenbaum and Robert A. Hirsch argued the cause
for petitioners. With them on the briefs were Brian Wolfman,
Paul D. Cullen, Sr., and Henry M. Jasny.
Edward Himmelfarb, Attorney, U.S. Department of Justice,
argued the cause for respondent. With him on the brief were
Peter D. Keisler, Assistant Attorney General, U.S. Department
of Justice, Robert S. Greenspan, Attorney, Jeffrey A. Rosen,
General Counsel, U.S. Department of Transportation, Brigham
A. McCown, Chief Counsel, and Cheryl J. Walker, Attorney.
2
Matthew M. Collette, Attorney, U.S. Department of Justice,
entered an appearance.
Before: TATEL and GARLAND, Circuit Judges, and
EDWARDS, Senior Circuit Judge.*
Opinion for the Court filed by Senior Circuit Judge
EDWARDS.
EDWARDS, Senior Circuit Judge: In 1991, Congress
instructed the Department of Transportation (“DOT”) to
determine whether drivers of commercial motor vehicles
(“CMVs”) – large trucks, passenger coaches, and school buses
– were receiving adequate training. Intermodal Surface
Transportation Efficiency Act, Pub. L. No. 102-240, 105 Stat.
1914, 2151 (1991) (“ISTEA” or the “Act”). In July 1995, after
extensive study, the Federal Highway Administration
(“FHWA”) published a three-volume study entitled, “Assessing
the Adequacy of Commercial Motor Vehicle Driver Training:
Final Report” (“Adequacy Report”). The Report concluded,
inter alia, that in order for any training program to be
“adequate,” it must include “on-street hours” of training. The
findings of the Adequacy Report were distilled into a Final
Regulatory Evaluation, which the agency transmitted to
Congress in February 1996. In April 1996, the agency published
a notice in which it solicited comments on the Adequacy Report
and the Final Regulatory Evaluation. And then nothing much
happened until November 2002, when parties petitioned this
court for a writ of mandamus ordering the Secretary of
Transportation to fulfill his ISTEA duties. In re Citizens for
Reliable & Safe Highways, No. 02-1363 (D.C. Cir. filed Nov.
26, 2002). Pursuant to a settlement agreement, the agency
*
Senior Circuit Judge Edwards was in regular active service
at the time of oral argument.
3
agreed to publish a final rule implementing entry-level training
requirements no later than May 31, 2004.
On August 15, 2003, the Federal Motor Carrier Safety
Administration (“FMCSA”) published a notice of proposed
rulemaking to address the findings of the Adequacy Report.
After eliciting comments, FMCSA issued a final rule in May
2004. In the rule’s summary, FMCSA stated: “This action
responds to a study mandated by the Intermodal Surface
Transportation Efficiency Act of 1991 that found the private
sector training of entry-level drivers in the heavy truck,
motorcoach, and school bus industries was inadequate.”
Minimum Training Requirements for Entry-Level Commercial
Motor Vehicle Operators, 69 Fed. Reg. 29,384, 29,384 (May 21,
2004) (codified at 49 C.F.R. pt. 380). However, the rule
departed sharply from earlier agency recommendations. The
Adequacy Report determined that effective training for CMV
drivers required practical, on-the-road instruction on how to
operate a heavy vehicle. But FMCSA ignored this evidence and
opted for a program that focuses on areas unrelated to the
practical demands of operating a commercial motor vehicle.
Petitioners, who represent private citizens concerned with
highway safety and the industries affected by training
requirements, seek review of FMCSA’s final rule. The striking
incongruity between the methods of training previously shown
to be effective and the regimen adopted in the final rule,
petitioners argue, shows the agency’s action to be arbitrary and
capricious, in violation of the Administrative Procedure Act (the
“APA”). See 5 U.S.C. § 706(2)(A). We agree. Initial phases of
the regulatory process – which involved extensive study and
voluminous reports – identified deficiencies in training, and then
prescribed standards for judging training adequacy and
guidelines for inculcating the requisite operational skills.
FMCSA proclaims that its final rule “responds” to those earlier
findings. In truth, however, the final rule inexplicably ignores
4
the Adequacy Report and the regulatory prescriptions contained
in that Report. The agency, without coherent explanation, has
promulgated a rule that is so at odds with the record assembled
by DOT that the action cannot stand. Accordingly, we grant the
petitions for review and remand the final rule to the agency for
further rulemaking consistent with this opinion.
I. BACKGROUND
A. Licensing and Training Drivers of Commercial Motor
Vehicles
This case concerns Congress’s ongoing efforts to ensure
that CMVs operate safely on the nation’s roads. For almost two
decades, the federal government has regulated the licensing of
CMV drivers. However, prior to the instant rulemaking, which
was instituted under ISTEA, the Government never purported to
impose any standards of driver training. Private parties had
developed training for neophyte drivers, but these efforts were
found to be insufficient to secure CMV safety.
In 1986, Congress passed the Commercial Motor Vehicle
Safety Act (“CMVSA”), 49 U.S.C. § 31301 et seq. (2000).
Under the CMVSA, the Secretary of Transportation was
required to promulgate regulations, to be administered by
individual states, setting minimum uniform standards governing
commercial drivers’ licenses (“CDLs”) for CMVs. Id. § 31308.
CMVs include cargo-carrying trucks within a specified weight
range, vehicles designed to transport at least 16 passengers, and
vehicles carrying certain hazardous materials. Id. § 31301(4).
Among other things, the statute mandates that CDL tests include
written and driving components. Id. § 31308(1).
The federal standards governing CDLs do not establish a
training regimen. In other words, “there are no prerequisite
Federal training requirements to obtain a CDL.” Minimum
Training Requirements for Entry-Level Commercial Motor
Vehicle Operators, 68 Fed. Reg. 48,863, 48,864 (proposed Aug.
5
15, 2003) (codified as amended at 49 C.F.R. pt. 380).
“Generally, drivers individually prepare for the CDL tests by
studying such areas as vehicle inspection procedures, off-road
vehicle maneuvers and operating a CMV in traffic.” Id.
While the CDL program does not mandate any CMV
training, some segments of the private sector, with guidance
from the federal government, have attempted to promote
effective training practices. In 1985, FHWA published a Model
Curriculum for Training Tractor-Trailer Drivers (“Model
Curriculum”). See Joint Appendix (“J.A.”) 37. The Model
Curriculum sets out a primer for instructing drivers of heavy
trucks. It focuses on five subject areas: basic operation, safe
operating practices, advanced operating practices, vehicle
maintenance, and nonvehicle activity. The Model Curriculum
prescribes a total of 320 hours of training, including 116 hours
of on-street training and 92.25 additional hours of driving-range
time. Id. at 44. The curriculum is primarily focused on
inculcating the skills and knowledge needed to enhance CMV
safety. For example, it prescribes 4.25 hours of training on the
techniques needed to avoid accidents while driving a truck in
reverse, and 22 hours on “advanced operating practices,” like
emergency maneuvers and skid control. Id. Still, the Model
Curriculum’s introduction emphasizes that its program sets out
only “minimum standards,” and that “[g]raduates of this
Curriculum cannot be considered fully trained, ‘ready to solo’
type drivers” unless “the Curriculum is considerably expanded
and enriched to provide both additional driving time and
material pertinent to the particular driving job that the student is
being trained for.” Id. at 42 (emphases in original). In 1995,
FHWA devised a similar curriculum for motor coach drivers.
Shortly after the Model Curriculum was published, groups
representing the motor carrier, truck-driver training, and
insurance industries formed the Professional Truck-Driver
Training Institute of America (“PTDIA” or the “Institute”). The
6
Institute develops standards for training truck drivers, and it
certifies private training organizations that meet or exceed its
recommendations. PTDIA acknowledges that the Model
Curriculum “has been the ‘bible’ around which the PTDIA has
built its standards.” Professional Truck Driver Institute of
America, Comments to 49 C.F.R. pt. 383, at 3, reprinted in J.A.
68. To qualify as adequate under PTDIA standards, a truck
driver training program must provide 147.5 hours of instruction
including 44 hours of combined street and range time. Id. at 10,
J.A. 75.
Congress revisited the issue of CMV safety in 1991 when
it passed ISTEA. The rulemaking at issue here was commenced
pursuant to § 4007(a) of the Act, which provides:
(a) ENTRY LEVEL.–
(1) STUDY OF PRIVATE SECTOR. – Not later than
12 months after the date of the enactment of this Act,
the Secretary shall report to Congress on the
effectiveness of the efforts of the private sector to
ensure adequate training of entry level drivers of
commercial motor vehicles. In preparing the report,
the Secretary shall solicit the views of interested
persons.
(2) RULEMAKING PROCEEDING. – Not later than
12 months after the date of the enactment of this Act,
the Secretary shall commence a rulemaking proceeding
on the need to require training of all entry level drivers
of commercial motor vehicles. Such rulemaking
proceeding shall be completed not later than 24 months
after the date of such enactment.
(3) FOLLOWUP STUDY. – If the Secretary
determines under the proceeding conducted under
paragraph (2) that it is not in the public interest to issue
a rule that requires training for all entry level drivers,
7
the Secretary shall submit to the Committee on
Commerce, Science, and Transportation of the Senate
and the Committee on Public Works and
Transportation of the House of Representatives not
later than 25 months after the date of the enactment of
this Act a report on the reasons for such decision,
together with the results of a cost benefit analysis
which the Secretary shall conduct with respect to such
proceeding.
105 Stat. at 2151-52.
B. Implementing ISTEA’s Dictates
1. Studying the Adequacy of Entry-Level Driver
Training
As a first step toward implementing § 4007(a) of ISTEA,
FMCSA’s predecessor, FHWA, issued an advanced notice of
proposed rulemaking. Training for All Entry Level Drivers of
Commercial Motor Vehicles (CMVs), 58 Fed. Reg. 33,874
(announced June 21, 1993) (to be codified at 49 C.F.R. pt. 383).
Noting the requirements of § 4007(a), FHWA solicited
comments on “the need to require training of all entry level
drivers of commercial motor vehicles (CMVs).” Id. The agency
further explained that it had contracted with an outside company
to produce a study examining the effectiveness of private sector
efforts to ensure adequate training of entry-level CMV drivers.
Id. at 33,875. Information gleaned from this study would form
the basis of the report to Congress mandated by ISTEA. To help
assemble the necessary material, the agency invited interested
parties to submit comments in response to a list of 13 questions
addressing the state of entry-level driver training. Id. at 33,875-
76.
In July 1995, after receiving over 100 responses to its
request for comments, FHWA published its three-volume
Adequacy Report, reprinted in J.A. 164. The Adequacy Report
8
began by surveying the training levels among drivers of heavy
trucks, motor coaches, and school buses. What it found was not
encouraging: “The conclusion of this study is that none of the
three private sectors are effectively providing adequate
training.” 1 Adequacy Report at 2, J.A. 173. Specifically, the
Adequacy Report found that “the heavy truck sector has the
smallest percentage of carriers offering adequate training (about
9 percent),” while only 18.5 percent of motor coach carriers
offered adequate training. Id. at 3-4, J.A. 174-75. The Report
concluded that “the present level of training adequacy is not
likely to improve due to the actions of the private sectors
themselves.” Id. at 7, J.A. 178. Given widespread training
failures across the industries it examined, the Report
recommended that “[i]f it is desirable to target fewer than all
three domains, the heavy truck domain should be considered
first priority, followed by motorcoaches.” Id. at 12, J.A. 183.
The Adequacy Report also made extensive findings on the
form that “adequate” entry-level training would take. “With
regard to heavy trucks,” the Report stated, “there is general
agreement in the industry that the model tractor-trailer driver
curriculum developed by the FHWA in the mid-1980s represents
an adequate content and approach for training truck drivers.” 3
Adequacy Report at 1-6, J.A. 209. “Therefore, the model
curriculum was the starting point in defining ‘adequate training’
for heavy truck drivers.” Id. Using the Model Curriculum as a
baseline for analysis, the Report noted that “[f]or a program to
be considered ‘adequate’ it must have on-street hours.” Id. at B-
5, J.A. 216.
The findings of the Adequacy Report were distilled into a
Final Regulatory Evaluation, which FHWA transmitted to
Congress in February 1996. The evaluation presented a cost-
benefit analysis of mandating entry-level driver training in
conformity with the Model Curriculum. On balance, the report
found, mandatory training would be beneficial. In its analysis,
9
the agency discounted the anomalous results produced by some
earlier studies of driver training, which had suggested that
training might increase accident rates. Such “counterintuitive”
findings, the agency determined, likely reflected the
pervasiveness of training programs that were “not adequate.”
Final Regulatory Evaluation: Entry-Level Driver Training at
15-17 (May 1995), reprinted in J.A. 241-43. Adjusting for
shoddy training programs made the benefits of good training
clear. “Based on the information presented from case studies,
a reduction in accidents is possible when training is well
designed. Accident reductions in the 10 to 15 percent range are
not unrealistic.” Id. at 20, J.A. 246. Economically, mandating
training along the lines described in the Model Curriculum
would yield substantial projected benefits. Against a cost of
between $4.19 billion and $4.51 billion over 10 years,
mandatory training was expected to generate a benefit in the
range of $5.4 billion to $15.27 billion during the same period.
Id. at 32-36, J.A. 258-62.
In April 1996, FHWA published a notice in which it
solicited comments on the Adequacy Report and the Final
Regulatory Evaluation. Training of Entry-Level Drivers of
Commercial Motor Vehicles, 61 Fed. Reg. 18,355 (Apr. 25,
1996) (notice of availability and request for comments). In
response, the agency received 48 additional comments. On
November 13, 1996, the agency held a public meeting on the
issue, which 26 individuals attended. After the meeting,
however, the agency’s activities pursuant to § 4007(a) came to
a halt. Nothing in the record explains this hiatus, but for six
years the agency initiated no further action. Indeed, it took
litigation by concerned private parties to nudge the agency out
of its slumber. In November 2002, those parties petitioned this
court for a writ of mandamus ordering the Secretary of
Transportation to fulfill his ISTEA duties. In re Citizens for
Reliable & Safe Highways, No. 02-1363 (D.C. Cir. filed Nov.
26, 2002). The matter was settled, and DOT agreed to publish
10
a final rule implementing entry-level training requirements no
later than May 31, 2004. Id.
2. FMCSA’s Final Rule
On August 15, 2003, FMCSA published a notice of
proposed rulemaking. After recounting the findings of the
Adequacy Report, FMCSA proposed a novel approach to the
problem of CMV training:
The agency is not requiring entry-level drivers to receive
training in areas that are covered in the CDL test. Such
training would be redundant. Instead, the required training
would address: (1) driver qualifications – medical, and
drug and alcohol testing, (2) driver hours of service
limitations, (3) driver wellness, and (4) whistle blower
protection.
Minimum Training Requirements, 68 Fed. Reg. at 48,868.
FMCSA estimated that training in this course of study would
entail about 10.5 hours for heavy truck and motor coach drivers.
Id. The proposed rule defined “entry-level” driver as one with
less than two years experience. Id. at 48,869. Licensed drivers
with one year of experience and a good driving record, however,
would be “grandfathered” past the new standard. Id. Finally,
the agency asserted that the proposed rule would be cost-
justified, but it offered no studies directly demonstrating the
rule’s economic benefit. Instead, FMCSA relied on inferences
from data related to more extensive training regimens.
Estimating a 10-year cost of $173.3 million, the agency claimed
that the proposed rule would have to prevent 315 truck-related
accidents in the first year and 285 crashes in subsequent years to
be cost-beneficial. Id. Since those numbers represented less
than one percent of truck-related accidents, and the training
program contemplated in the Adequacy Report was projected to
cut accident rates by up to 15 percent, the agency concluded that
11
the scaled-down reduction in accidents required to justify the
rule’s cost was attainable. Id.
After eliciting comments and holding a public meeting,
FMCSA announced its final rule in May 2004. In the rule’s
summary, the agency stated: “This action responds to a study
mandated by the Intermodal Surface Transportation Efficiency
Act of 1991 that found the private sector training of entry-level
drivers in the heavy truck, motorcoach, and school bus
industries was inadequate.” Minimum Training Requirements,
69 Fed. Reg. at 29,384. The final rule mandates action in the
four areas sketched in the notice of proposed rulemaking. 49
C.F.R. § 380.503. FMCSA did not set a minimum number of
hours, but suggested that 10 hours of training would be
appropriate for heavy truck drivers. 69 Fed. Reg. at 29,398.
The new rule defined “entry-level” to cover all drivers with less
than one year of experience driving with a CDL. 49 C.F.R. §
380.502(b).
In July 2004, petitioners, Advocates for Highway and Auto
Safety (“Advocates”) and the Owner-Operated Independent
Drivers Association, filed separate petitions for review of
FMCSA’s final rule. Petitioner United Motorcoach Association
(“UMA”) initially filed a petition for reconsideration with
FMCSA. It then filed a petition for review with this court,
which was dismissed as incurably premature since UMA had a
petition for reconsideration pending before the agency. After
notifying the agency that it was withdrawing its petition for
reconsideration, UMA filed a new petition for review with this
court in December 2004. All three petitions were consolidated
for review.
__________
In 1996, Congress passed an Act to “codify without
substantive change laws related to transportation and to improve
the United States Code.” Pub. L. No. 104-287, 110 Stat. 3388
12
(1996). Oddly, the Act seems to repeal § 4007(a). Id. § 7(8),
110 Stat. at 3400. Neither party mentions this Act, and it is hard
to know what to make of it. The Act was passed in October
1996, approximately eight months after the FHWA fulfilled its
mandate under § 4007(a)(1) by transmitting the Adequacy
Report to Congress. Congress appears to have believed it was
repealing only obsolete statutory language relating to the §
4007(a)(1) mandate. See H.R. REP. 104-573, 23, 1996
U.S.C.C.A.N. 3831, 3853 (“Section 7(8) repeals section 4007(a),
(c), (d), and (e) of the Intermodal Surface Transportation
Efficiency Act of 1991 . . . to eliminate obsolete provisions.”).
However, beyond the obsolete requirements of § 4007(a)(1), the
remainder of § 4007(a) unequivocally required the agency to
take further action, either by issuing a rule on driver training or,
if doing so would contravene the public interest, by submitting
a further report to Congress. Id. § 4007(a)(2)-(3). Neither party
suggests that Pub. L. No. 104-287 repealed the agency’s
obligations beyond those set forth in § 4007(a)(1). Indeed, both
sides argued the case as if the disputed statutory provisions
remain in full force and effect.
Whatever the status of § 4007(a) – and for purposes of this
opinion, we share the parties’ evident assumption that it remains
operative – it seems clear that this court has authority to
determine whether FMCSA’s final rule is arbitrary and
capricious under the APA, 5 U.S.C. §706(2)(A). FMCSA,
whose chief mission is to ensure highway safety, see 49 U.S.C.
§ 113(b) (2000), has the undisputed authority to promulgate
regulations responding to the findings of the Adequacy Report,
see id. § 113(f) (authorizing the Secretary of Transportation to
delegate authority to FMCSA). That is precisely what the
agency set out to do when it issued its Notice of Proposed
Rulemaking. See 68 Fed. Reg. at 48,863. And the parties do not
doubt that the agency’s final regulations are subject to judicial
review under the APA. In other words, for purposes of judicial
review, it does not matter whether FMCSA’s final rule is viewed
13
as an act taken pursuant to a specific duty under ISTEA or an act
taken pursuant to the authority granted under the agency’s
organic statute to address matters relating to highway safety. In
either case, FMCSA lawfully set out to promulgate regulations
that “respond” to the Adequacy Report. That is the basis upon
which we review the final rule to determine whether it survives
judicial scrutiny under the APA’s arbitrary-and-capricious
standard of review.
II. DISCUSSION
A. Standard of Review
A party challenging an agency’s rulemaking has the burden
of showing that the agency action was “arbitrary, capricious, an
abuse of discretion, or otherwise not in accordance with law.”
5 U.S.C. § 706(2)(A); see also City of Olmsted Falls v. FAA,
292 F.3d 261, 271 (D.C. Cir. 2002). An agency’s rule will be
found arbitrary and capricious “if the agency has relied on
factors which Congress has not intended it to consider, entirely
failed to consider an important aspect of the problem, offered an
explanation for its decision that runs counter to the evidence
before the agency, or is so implausible that it could not be
ascribed to difference in view or the product of agency
expertise.” Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto.
Ins. Co., 463 U.S. 29, 43 (1983).
B. FMCSA’s Entry-Level Driver Training Rule
The contested final rule begins with the assurance that it
“responds” to the Adequacy Report. See Minimum Training
Requirements, 69 Fed. Reg. at 29,384. Rather than “respond”
to the imperatives laid out in the Adequacy Report, however, the
final rule completely ignores the study’s emphasis on practical,
on-the-road training. The agency has adopted a rule with little
apparent connection to the inadequacies it purports to address.
For this reason, it fails review under § 706(2)(A).
14
The record reveals numerous disjunctions between the final
rule and the findings of the Adequacy Report. Most glaringly,
the final rule inexplicably abandons the recommendations of the
Model Curriculum, despite the Adequacy Report’s heavy
reliance on those recommendations. The Report, in its
definition of adequate training, says that “the model curriculum
was the starting point in defining ‘adequate training’ for heavy
truck drivers,” and that it is largely applicable to the motor
coach industry. 3 Adequacy Report at 1-6, J.A. 209 (emphasis
added). FMCSA accepted this premise when it announced the
rule at issue here. Minimum Training Requirements, 68 Fed.
Reg. at 48,865 (“The agency believes that the Model Curriculum
represents the basis for training adequacy.”). Methodologically,
the Adequacy Report is entirely structured around the notion
that “adequate training” is defined in reference to the Model
Curriculum. But the final rule eschews the Model Curriculum
altogether. While the curriculum devotes some attention to the
topics covered by the final rule – for example, it prescribes five
hours of instruction on personal health and safety, and 5.75
hours of training on hours of service requirements – those
subjects are clearly secondary. Model Curriculum at 3,
reprinted in J.A. 44. Overwhelmingly, the curriculum addresses
topics directly related to driving skills, with a heavy emphasis
on skills and techniques necessary to safely operate a heavy
truck. None of the four areas covered by the final rule – driver
qualification, hours of service, driver wellness, and
whistleblower protection – have anything to do with operational
skills. Thus, they fly in the face of the Adequacy Report’s
recommendations.
A critical facet of the training program developed in the
Model Curriculum is on-street training. Indeed, the Adequacy
Report’s conclusions evince a presumption that any rule
instituting mandatory training would contain a substantial on-
street training component. Early on, the report says that “[f]or
a program to be considered ‘adequate’ it must have on-street
15
training.” 3 Adequacy Report at B-5, J.A. 216. The
unsurprising assumption underlying this statement is that the
best way to enhance safety among truck drivers is to ensure
practical but supervised experience handling heavy vehicles.
FMCSA’s final rule flouts this premise. Quite clearly, the four
topics it embraces do not touch on the operational skills of
driving a heavy truck. Nothing in the final rule, the
administrative record, or even the arguments presented in
litigation, suggests any reason to believe that the agency
changed course on the basis of evidence that the Adequacy
Report’s conclusions were faulty. The final rule’s purported
responsiveness to the Adequacy Report is therefore flatly
contradicted.
From a purely economic perspective, the agency’s disregard
of the Adequacy Report is baffling in light of the evidence in the
record. Instituting a training regimen along the lines sketched
in the Model Curriculum would, according to the agency’s own
calculations, produce benefits far in excess of costs. As noted
earlier, the program’s estimated 10-year cost of between $4.19
billion to $4.51 billion would yield a benefit ranging from $5.4
billion to $15.27 billion, depending on analytic assumptions.
See J.A. 258-62. The cost-benefit analysis in favor of the final
rule, however, lends no support to FMCSA’s position. In the
final rule, FMCSA says practically nothing about the projected
benefits. After running through the costs of mandating its
program, the agency suggests that, to be cost-beneficial, the rule
would need to prevent 201 crashes by the 32,400 entry-level
drivers affected by its provisions each year, representing
approximately a five percent reduction in crash rates. 69 Fed.
Reg. at 29,400. But the discussion cites no evidence that the
final rule would achieve that goal.
FMCSA’s Final Regulatory Evaluation, which was issued
to explain the new rule, underscores the frailty of FMCSA’s
analysis. In asserting that the new rule will generate a sufficient
16
benefit, FMCSA says: “A 4.7 percent reduction in crashes for
this group would appear plausible when measured against the
estimates of potential crash reduction measured in studies cited
in the [Notice of Proposed Rulemaking], the [Advanced Notice
of Proposed Rulemaking], and its accompanying regulatory
evaluation.” Regulatory Evaluation, Final Rule, Minimum
Training Requirements for Entry-Level Commercial Motor
Vehicle Operators at 21, reprinted in J.A. 444. This makes no
sense, because the studies to which this statement alludes are
those that measured the effect of more substantial training.
Thus, from the premise that a particular method of driver
training reduces crashes, the agency infers that anything it calls
“driver training” will reduce crashes. This is patently illogical.
It is also in direct tension with a specific finding of the
Adequacy Report. To explain the correlation found in some
studies between training and increased accident rates, the
Adequacy Report noted that “researchers have attributed this
tendency to the high variability in training quality, indicating
that poor training may give the new driver a false sense of
confidence in his/her abilities.” 1 Adequacy Report at 10, J.A.
181. The agency is wrong to assume that its unstudied training
program can piggyback on the demonstrated effectiveness of
practical, on-the-road training, and its blithe assurance that any
training is beneficial ignores the documented risks flowing from
subpar training programs.
FMCSA’s efforts to portray the final rule as consistent with
the Adequacy Report are fruitless. For example, at oral
argument, agency counsel suggested that the CDL program,
when coupled with the training requirements of the final rule,
will assure adequate driver training. Transcript of Proceedings
(“Tr.”) at 20, Advocates for Highway & Auto Safety v. Fed.
Motor Carrier Safety Admin., No. 04-1233 (D.C. Cir. argued
Sept. 12, 2005). In particular, counsel pointed to a section of the
Adequacy Report that states: “One possible outcome . . . could
17
be a hybrid program, i.e., a combination of the Training- and
Performance-based approaches that embodies the advantages of
each.” See 1 Adequacy Report at 13, J.A. 184. But FMCSA’s
invocation of that language misrepresents the discussion of
“hybrid programs” presented in the record. First, as already
noted, the term “training” in the Adequacy Report did not refer
to instruction in any set of subject areas imaginable. It had
specific content – namely, the kind of training outlined in the
Model Curriculum. And “performance-based approach”
certainly did not mean the existing CDL program. Rather, under
a performance-based approach, “drivers would be required to
pass more comprehensive knowledge and skill tests than are
presently required to obtain a Commercial Drivers License
(CDL).” Id. at 12, J.A. 183. The deficiencies of counsel’s
attempt to characterize the agency rule as a “hybrid program”
are readily apparent. Whatever role the CDL plays, it is
irrelevant to fulfilling the agency’s mandate under ISTEA. The
CDL requirements were well established by the time the
Adequacy Report concluded, unequivocally, that the private
sector was not effectively ensuring adequate training. The
notion that the final rule “responds” to the Adequacy Report
because it works in tandem with existing CDL standards is
unpersuasive.
FMCSA’s main strategy in defending the final rule is to
suggest that it is the first installment of an incremental program
that will fulfill its statutory obligations. This is entirely
unconvincing. Agencies surely may, in appropriate
circumstances, address problems incrementally. See Mobil Oil
Exploration & Producing Se., Inc. v. United Distribution Cos.,
498 U.S. 211, 230-31 (1991). However, in this case, FMCSA
has not shown that its action inaugurates a program designed to
tackle the concerns of the Adequacy Report. Rather, the final
rule points to some irrelevant initiatives which FMCSA self-
servingly characterizes as part of the agency’s “overall . . . effort
to improve its driver safety programs.” See Minimum Training
18
Requirements, 69 Fed. Reg. at 29,385. None of these programs
involves CMV training. The cited initiatives include: (1)
considering whether to modify the CDL test and whether the test
can be administered more cost-effectively; (2) identifying the
costs and benefits of a graduated license system, an inquiry
mandated by another section of ISTEA; (3) publishing an
interim final rule intended to heighten awareness of safety
regulations among motor carriers; and (4) administering a grant
program, in place since 1984, that provides financial assistance
to states in aid of “roadside inspections and other enforcement
activities designed to improve CMV safety.” Id. at 29,385-86.
These so-called “initiatives” do not reflect concrete regulatory
proposals to address the training problems identified in the
Adequacy Report. Indeed, the grant program predates ISTEA
and the Adequacy Report. Even on their own terms, two of the
initiatives are so speculative that they may come to nothing.
The agency has thus presented no reason to believe that these
initiatives, in concert with the new rule at issue here, will
address the deficiencies identified by the Adequacy Report.
In short, the record in this case shows that the agency
entirely failed to consider important aspects of the CMV training
problems before it; it largely ignored the evidence in the
Adequacy Report and abandoned the recommendations of the
Model Curriculum without reasonable explanation; and it
adopted a final rule whose terms have almost nothing to do with
an “adequate” CMV training program. FMCSA simply
disregarded the volumes of evidence that extensive, on-street
training enhances CMV safety. FMCSA’s action was thus
arbitrary and capricious under § 706(2)(A).
C. UMA’s Arguments
Petitioner UMA, in addition to endorsing the broad
criticisms of the final rule, argues that the agency acted
arbitrarily and capriciously in issuing a rule that applied
uniformly to the trucking and motor coach industries.
19
According to UMA, evidence that the motor coach industry has
a superior safety record, coupled with the motor coach
industry’s economic vulnerability, makes uniform treatment
unfair and irrational.
1. Waiver
FMCSA maintains that three of UMA's arguments – (1) that
the industry should be given an opportunity to work with the
agency to develop a better training program, (2) that insurance
carriers might require training of all drivers rather than just
entry-level drivers, and (3) that motor coach operators will be
exposed to liability – are waived because they were not raised
before the agency prior to the promulgation of the final rule.
UMA responds that, in light of Sims v. Apfel, 530 U.S. 103
(2000), there can be no “waiver.”
The agency correctly asserts that, as a general proposition,
the applicable case law emphasizes the need for parties seeking
judicial review of agency action to raise their issues before the
agency during the administrative process in order to preserve
those issues for judicial review. See, e.g., United States v. L.A.
Tucker Truck Lines, Inc., 344 U.S. 33, 37 (1952) (“Simple
fairness to those who are engaged in the tasks of administration,
and to litigants, requires as a general rule that courts should not
topple over administrative decisions unless the administrative
body not only has erred but has erred against objection made at
the time appropriate under its practice.”). However, Sims
indicates that this administrative-waiver doctrine does not
represent an ironclad rule. And, as a general matter, a party’s
presentation of issues during a rulemaking proceeding is not a
jurisdictional prerequisite to judicial review. See Avocados Plus
Inc. v. Veneman, 370 F.3d 1243, 1248 (D.C. Cir. 2004) (Courts
“presume exhaustion is non-jurisdictional unless ‘Congress
states in clear, unequivocal terms that the judiciary is barred
from hearing an action until the administrative agency has come
to a decision.’”) (quoting I.A.M. Nat’l Pension Fund Benefit
20
Plan C v. Stockton Tri Indus., 727 F.2d 1204, 1208 (D.C. Cir.
1984)) (emphasis added).
UMA relies on Sims to argue that it is inappropriate to apply
the general principles of issue waiver to administrative
rulemaking. Sims involved a Social Security claimant who was
denied disability benefits and then requested that the Social
Security Appeals Council (“Council”) review her claims. Sims,
530 U.S. at 105. After the Council denied review, Sims filed
suit in federal district court. She lost and, on appeal, the Fifth
Circuit held that two of the three arguments she pressed were
not reviewable on the merits, because she had not raised them
before the Council. Id. at 106. The Supreme Court reversed.
The Court began its analysis by noting “that requirements of
administrative issue exhaustion are largely creatures of statute,”
and that most of the Court’s cases refusing to consider
arguments initiated in litigation involved specific statutory
directives. Id. at 107-08. The Court noted that when neither
statute nor regulation required issue exhaustion, the Court has
occasionally imposed its own exhaustion hurdle. But in those
cases, the administrative context was critical: “The basis for a
judicially imposed issue-exhaustion requirement is an analogy
to the rule that appellate courts will not consider arguments not
raised before trial courts.” Id. at 108-09. The application of
issue exhaustion “depends on the degree to which the analogy
to normal adversarial litigation applies in a particular
administrative proceeding.” Id. at 109. Where the parties must
present and develop issues, the adjudicative model is apt and
issue exhaustion is appropriate. “Where, by contrast, an
administrative proceeding is not adversarial, . . . the reasons for
a court to require exhaustion are much weaker.” Id. at 110. A
four-justice plurality in Sims pointed out that “Social Security
proceedings are inquisitorial rather than adversarial,” that they
are highly informal, and that many claimants are not represented
by attorneys, thus making issue exhaustion inapposite. Id. at
110-12.
21
UMA contends that, in light of the Court’s holding in Sims,
FMCSA’s waiver argument is misplaced. Pet’r Reply Br. at 21
(“Rulemakings are classic examples of non-adversarial
administrative proceedings.”). This argument is not
unreasonable, because there appears to be no statute or
regulation compelling exhaustion in advance of judicial review,
and no argument has been made analogizing the agency’s
rulemaking to adjudication.
The difficulty that UMA faces, however, is that the case law
post-dating Sims gives little support to its position. For
example, in Appalachian Power Co. v. EPA, 251 F.3d 1026
(D.C. Cir. 2001), the court considered a host of challenges to an
Environmental Protection Agency (“EPA”) emissions
regulation. The court noted: “It is black-letter administrative
law that ‘[a]bsent special circumstances, a party must initially
present its comments to the agency during the rulemaking in
order for the court to consider the issue.’” Id. at 1036 (quoting
Tex. Tin Corp. v. EPA, 935 F.2d 1321, 1323 (D.C. Cir.1991))
(alterations in Appalachian Power). Similarly, in National
Wildlife Federation v. EPA, 286 F.3d 554 (D.C. Cir. 2002) (per
curiam), the court upheld a final rule regulating the bleaching
process used by paper mills. Among the many challenges
brought by the petitioner and rejected by the court was one that
“neither [petitioner] nor any other party before the agency raised
. . . during the administrative phase of the rulemaking process.”
Id. at 562. Citing the “well established” principle that “issues
not raised before the agency are waived and this Court will not
consider them,” the court refused to transgress the “near
absolute bar against raising new issues – factual or legal – on
appeal in the administrative context.” Id.
Neither Appalachian Power nor National Wildlife
Federation mentions Sims or seeks to determine whether the
rulemaking proceedings in those cases were analogous to
adversarial litigation. Sims was addressed, however, in National
22
Mining Ass’n v. Department of Labor, 292 F.3d 849 (D.C. Cir.
2002). There the court declined to consider a challenge to the
Department of Labor’s regulations under the Black Lung Benefit
Act, because the petitioner “failed to raise it during the notice-
and-comment period.” Id. at 874 (citing Nat’l Wildlife Fed’n,
286 F.3d at 562). The court found Sims “inapplicable, for it
addresses issue exhaustion, not issue waiver.” Id.
The distinction between “issue exhaustion” and “issue
waiver” is illusive, to say the least. Indeed, both terms appear
in the case law without apparent distinction, and they are
sometimes treated as if synonymous. Compare Nuclear Energy
Inst., Inc. v. EPA, 373 F.3d 1251, 1297 (D.C. Cir. 2004) (per
curiam) (“It is a hard and fast rule of administrative law, rooted
in simple fairness, that issues not raised before an agency are
waived and will not be considered by a court on review.”)
(citing L.A. Tucker Truck Lines, 344 U.S. at 37), with Petroleum
Commc’ns, Inc. v. FCC, 22 F.3d 1164, 1169 (D.C. Cir. 1994)
(discussing “the judicially-created requirement of exhaustion,
which holds that ‘courts should not topple over administrative
decisions unless the administrative body not only has erred but
has erred against objection made at the time appropriate under
its practice.’”) (quoting L.A. Tucker Truck Lines, 344 U.S. at
37). At least one of our sister circuits has explicitly recognized
the interchangeability of the two terms. See Coal. for Gov’t
Procurement v. Fed. Prison Indus., Inc., 365 F.3d 435, 461-62
(6th Cir. 2004) (“The administrative waiver doctrine, commonly
referred to as issue exhaustion, provides that it is inappropriate
for courts reviewing agency decisions to consider arguments not
raised before the administrative agency involved.”). Indeed, in
Sims itself, the Court stated the question presented in terms of
waiver. Sims, 530 U.S. at 105 (“The question is whether a
claimant pursuing judicial review has waived any issues that he
did not include in that request.”) (emphasis added); see also id.
at 115 (“No one claims that any established exception to this
23
ordinary ‘exhaustion’ or ‘waiver’ rule applies.”) (Breyer, J.,
dissenting).
The obvious point of the court’s judgment in National
Mining Ass’n is that a party will normally forfeit an opportunity
to challenge an agency rulemaking on a ground that was not first
presented to the agency for its initial consideration. There are
two reasons for this. First, the courts are not authorized to
second-guess agency rulemaking decisions; rather, the role of
the court is to determine whether the agency’s decision is
arbitrary and capricious for want of reasoned decisionmaking.
See State Farm, 463 U.S. at 43 (“The scope of review under the
‘arbitrary and capricious’ standard is narrow and a court is not
to substitute its judgment for that of the agency.”). Therefore,
it is unsurprising that parties rarely are allowed to seek “review”
of a substantive claim that has never even been presented to the
agency for its consideration. Second, as noted above, “[s]imple
fairness . . . requires as a general rule that courts should not
topple over administrative decisions unless the administrative
body . . . has erred against objection made at the time
appropriate under its practice.” L.A. Tucker Truck Lines, 344
U.S. at 37.
The bottom line here is that, no matter how we characterize
the result, UMA forfeited the opportunity to seek judicial review
of its claims that the industry should be given an opportunity to
work with the agency to develop a better training program, that
insurance carriers might require training of all drivers rather
than just entry-level drivers, and that motor coach operators will
be exposed to liability. Because UMA did not raise these
contentions during the rulemaking, and because they are not the
kind of clear points that an agency must consider sua sponte, see
State Farm, 463 U.S. at 51 (a rulemaking cannot be found
wanting simply because an agency fails to address every
alternative “‘thought conceivable by the mind of man’”)
(quoting Vermont Yankee Nuclear Power Corp. v. Natural Res.
24
Defense Council, Inc., 435 U.S. 519, 551 (1978)), the FMCSA
did not act arbitrarily or capriciously in failing to consider these
claims.
2. UMA’s Remaining Claims
Four arguments that UMA raised during the rulemaking
process and pursued on appeal remain before this court.
However, none of these arguments have merit. First, UMA
insists that its superior safety record warranted exempting the
industry from the final rule. Second, petitioner accuses the
agency of arbitrarily ignoring UMA’s pleas to integrate the four
areas of training identified by the final rule into the CDL
curriculum. Third, UMA contends that because the industry
lacked specialized training schools, it would suffer a
disproportionate cost in complying with the final rule. Fourth,
UMA objected to the agency aggregating the estimated crash
costs derived from all of the regulated industries. Since the
motor coach industry has a superior accident record and
contributes less to overall accident-related costs, UMA posits,
it was methodologically unsound to calculate the rule’s benefits
without disaggregating the costs associated with each regulated
sector.
None of these criticisms demonstrate a failure of
decisionmaking sufficient to discard the rule as arbitrary and
capricious. Because they are so frail, we devote only brief
attention to their specific shortcomings. First, it was not
unreasonable for FMCSA to decline the UMA’s request for
exemption. Though the Adequacy Report did find that the
motor coach industry had a better safety record than the heavy
truck industry, it still found the industry’s training record to be
inadequate. See Minimum Training Requirements, 69 Fed. Reg.
at 29,389. Next, rejecting UMA’s suggestion that the training
topics be integrated into the CDL requirement was a permissible
policy choice. The agency was free to determine that
employers, rather than state administrators, should bear the cost
25
of the final rule. See id. at 29,388. Third, UMA’s argument that
it cannot afford to implement the final rule because the industry
lacks a training infrastructure makes little sense, considering that
UMA endorses the broader proposition that adherence to the
Adequacy Report will appropriately involve more extensive
training requirements than are now imposed by the final rule.
Finally, UMA’s objection to the agency’s aggregation of crash
costs seems confused. The agency used the average cost of
crashes involving large trucks to estimate the average cost of all
crashes affected by its rule. Id. at 29,397. Citing the motor
coach industry’s lower frequency of accidents, UMA seeks to
discredit the agency’s focus on the costs per accident generated
by the trucking industry. Because UMA has not shown that
motor coach accidents are less costly when they occur, the
association has not demonstrated a methodological problem with
the cost-benefit analysis beyond the ones already identified in
this opinion.
D. The Appropriate Remedy
Petitioners’ opening brief oscillates with respect to the
remedy sought. Compare Pet’r Br. at 46 (requesting vacatur)
with id. at 60 (requesting remand). We are convinced that the
final rule should be remanded, but that it should remain in effect
while the agency crafts an adequate regulation. While
unsupported agency action normally warrants vacatur, Ill. Pub.
Telecomm. Ass’n v. FCC, 123 F.3d 693, 693 (D.C. Cir. 1997),
this court is not without discretion. “The decision whether to
vacate depends on the seriousness of the order’s deficiency . . .
and the disruptive consequences of an interim change that may
itself be changed.” Allied-Signal, Inc. v. U.S. Nuclear
Regulatory Comm’n, 988 F.2d 146, 150-51 (D.C. Cir. 1993)
(internal quotations omitted).
Advocates conceded at oral argument that the agency’s rule
will do no affirmative harm, arguing only that it does not go far
enough. See Tr. at 12-13. Accordingly, they raise no objection
26
to our leaving the current rule in place, requesting only that we
require the agency to engage in further rulemaking. UMA
maintained that allowing the final rule to remain in effect would
harm the motor coach industry, but its argument is
unconvincing. Stressing the industry’s supposed economic
vulnerability, UMA claimed that it cannot afford to implement
the final rule. Id. at 14. But as noted earlier, this argument is
hard to credit when UMA has been litigating in favor of a far
more extensive – and presumably costlier – training regimen.
UMA recognizes this tension, and insists that if the industry
must bear the cost, it needs “a return on investment” that only
serious training can provide. Id. Like Advocates, UMA
advances no argument that this rule will have a detrimental
effect on safety. That leaves only its self-contradictory
argument about costs, which is not enough to convince us to
vacate a rule that, while plainly inadequate, may do some good,
if it does anything at all.
III. CONCLUSION
The petitions for review are granted as indicated above, and
the case is remanded to the agency for further consideration
consistent with this opinion.