Amer Trk Assn Inc v. FHA

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 3, 1998 Decided February 12, 1999

No. 97-1668

American Trucking Associations, Inc., et al.,

Petitioners

v.

United States Department of Transportation,

Federal Highway Administration, and

United States of America,

Respondents

Petroleum Marketers Association of America,

Intervenor

Consolidated with

No. 97-1680

On Petitions for Review of an Order of the

United States Department of Transportation

Erika Z. Jones argued the cause for petitioners American
Trucking Associations, et al. With her on the briefs were
Daniel R. Barney, Lynda S. Mounts and Harold S. Reeves.

Anthony J. McMahon argued the cause and filed the briefs
for petitioner Truckers United for Safety. Mary Beth L.
Jackson entered an appearance.

Edward R. Cohen, Attorney, U.S. Department of Justice,
argued the cause for respondents. With him on the brief
were Frank W. Hunger, Assistant Attorney General, and
Robert S. Greenspan, Attorney. E. Roy Hawkens, Attorney,
entered an appearance.

Robert S. Bassman and Alphonse M. Alfano were on the
brief for intervenor Petroleum Marketers Association of
America.

Before: Wald, Williams and Tatel, Circuit Judges.

Opinion for the Court filed by Circuit Judge Williams.

Williams, Circuit Judge: The petitioners in this case, the
American Trucking Associations ("ATA") and Truckers Unit-
ed for Safety ("TUFS"), challenge a rule promulgated by the
Federal Highway Administration ("FHWA") amending the
regulations governing the assignment of safety fitness ratings
to motor carriers. The ATA claims that the amended regula-
tions are contrary to law, are arbitrary and capricious, and
were adopted without adequate consideration of comments.
TUFS claims that the rule is invalid because it fails to
discharge all the duties assigned the agency by the governing
statute. Intervenor Petroleum Marketers Association of
America raises still further complaints. We reject all these
challenges. In addition, TUFS petitions us to vacate all
existing safety fitness ratings. We find that TUFS lacks
standing to pursue this claim. We thus deny the petitions on
all counts.

I. Background

The Motor Carrier Safety Act of 1984, as amended,
instructs the Secretary of Transportation to prescribe regula-
tions establishing a procedure for determining the safety
fitness of owners and operators of commercial motor vehicles.
See 49 U.S.C. s 31144(a)(1). The Secretary has delegated
responsibility under this provision to the FHWA, which exer-
cised it in 1988 by adopting Safety Fitness Procedures. See
53 Fed. Reg. 50,961 (1988).

In MST Express v. Department of Transportation, 108
F.3d 401 (D.C. Cir. 1997), we held that the FHWA's 1988
action had failed to meet the statute's requirement of estab-
lishing its safety fitness rating methodology by regulation.
Too much of its methodology was stated in its Safety Fitness
Rating Methodology ("SFRM"), which was merely part of its
Motor Carrier Training Manual and had not been adopted by
notice-and-comment rulemaking. Id. at 406. The FHWA
responded by issuing the rule challenged in this case, incorpo-
rating a nearly identical SFRM as an appendix to the Safety
Fitness Procedures. 62 Fed. Reg. 28,826, 28,826 (1997). The
alleged inadequacy of the SFRM is the gravamen of most of
the petitioners' challenges.

The SFRM states a procedure for assigning a motor carri-
er a safety rating of "satisfactory," "conditional," or "unsatis-
factory." The rating depends on the carrier's ratings in six
specific "factors."

Five of these factor ratings are based on compliance with
safety regulations in various areas--"general," "driver," "op-
erational," "vehicle," and "hazardous materials." 49 CFR
App. B, 62 Fed. Reg. 60,035, 60,045 (1997). The ratings for
four of these--all but the vehicle factor--are determined by a
"compliance review" of the carrier's documents by FHWA
inspectors. Id. at 60,044-45. The rating for the vehicle factor
is based at least in part on document review, and can also be
affected by the results of roadside inspections. Id. at 60,044.
The rating for the sixth factor, accidents, is determined by
the carrier's accident rate. Id. Each factor is rated on the
same scale as the overall rating (satisfactory, conditional, or
unsatisfactory), and the six individual factor ratings are com-

bined into an overall safety rating according to the following
table:

MOTOR CARRIER SAFETY RATING TABLE

______________________________________________________________________________
Factor ratings Overall safety
rating
________________________________________________
Unsatisfactory Conditional
______________________________________________________________________________
0 2 or less Satisfactory
0 more than 2 Conditional
1 2 or less Conditional
1 more than 2 Unsatisfactory
2 or more0 or moreUnsatisfactory
______________________________________________________________________________
49 CFR 385 App. B.

We describe specific aspects of the SFRM in more detail in
the discussion of each challenge.

II. ATA's Claims

A.Consistency with Statute

The ATA's first claim is that the rule fails to comply with
the statute, principally for want of what ATA regards as
statutorily mandated specificity. When the present rule was
issued, and when this action was brought, the relevant statu-
tory provision was contained in 49 U.S.C. s 31144(a)(1), which
instructed the Secretary to "prescribe regulations establish-
ing a procedure to decide on the safety fitness" of carriers,
including a "means of deciding whether [carriers] meet the
safety fitness requirements under clause (A)," which in turn
called for "specific initial and continuing" safety require-
ments. Id. Although none of the parties mentioned it in
briefing or oral argument, 49 U.S.C. s 31144 was amended by
the Transportation Equity Act for the 21st Century ("1998
Act"), s 4009(a), Pub. L. No. 105-178, 112 Stat. 107, 405-07.
The requirement at stake here is reformulated as s 31144(b)

and now demands that the Secretary "maintain by regulation
a procedure for determining the safety fitness" of carriers,
which must include "specific initial and continuing" safety
fitness requirements and a "methodology the Secretary will
use to determine" whether carriers are fit. Id. As we
develop below, the change has no effect on the outcome.

In its specificity claim, ATA points out that the SFRM
decrees neither how many documents a Safety Investigator is
to examine nor how the investigator is to select the docu-
ments he or she does review. ATA reads MST Express as
saying that the statute requires that all procedures used in
assessing safety fitness be "completely contained" in the
regulations, so as to enable carriers to "predict," "ascertain in
advance," or "determine from looking at the current regula-
tions," the safety ratings they will receive if inspected.

Whether the FHWA's regulations satisfy the statutory
directive is a question of statutory interpretation, one the
FHWA has answered by adopting the regulations in question.
Under the familiar test of Chevron U.S.A. Inc. v. NRDC, 467
U.S. 837 (1984), assuming Congress has not "directly spoken
to the precise question at issue," id. at 842-43, we defer to the
agency's interpretation if it is "based on a permissible con-
struction of the statute," id. at 843. The Chevron test applies
to issues of how specifically an agency must frame its regula-
tions. New Mexico v. EPA, 114 F.3d 290, 293 (D.C. Cir.
1997).

Here neither the 1984 Act's term, "means of deciding," nor
that of the 1998 Act, "methodology," could possibly be said to
speak directly to the necessary degree of specificity (at least
in any sense adequate to condemn the present regulations).
Nor does the statutory mandate that requirements be "specif-
ic" illuminate the degree of specificity required. Thus, we
turn to the question of whether it is reasonable to call the
procedures a "means of deciding" whether carriers meet
"specific" safety fitness requirements (1984 Act) or a "meth-
odology for determining the safety fitness" of carriers (1998
Act), again with reference to "specific" requirements. In a

series of cases we have explicitly accorded agencies very
broad deference in selecting the level of generality at which
they will articulate rules. See New Mexico v. EPA, 114 F.3d
at 294; Metropolitan Washington Airports Authority Profes-
sional Fire Fighters Ass'n v. United States, 959 F.2d 297, 300
(D.C. Cir. 1992); NRDC v. EPA, 907 F.2d 1146, 1165 n.16
(D.C. Cir. 1990).

In fact the SFRM is highly specific, as we noted in MST
Express. There, contrasting it with the far more limited
treatment of the method for assigning ratings in the Safety
Fitness Procedures, we said that the SFRM "provides
FHWA inspectors with detailed guidelines for deriving a
motor carrier's safety rating." 108 F.3d at 403. It enumer-
ates the specific safety regulations that are considered in a
compliance review, divides them into "acute" and "critical"
categories,1 notifies the carrier of the types of records that
are reviewed for compliance, and explains exactly how detect-
ed violations of acute and critical regulations are combined
into an overall safety rating.

Yet ATA is certainly correct in claiming that the SFRM
fails to specify how many documents are examined for compli-
ance or how the documents that are reviewed are selected.
But that gap hardly compels a finding that it fails to meet the
specificity requirement of the statute as construed in MST
Express. Indeed, that case implied that the SFRM did
satisfy the statutory mandate, observing that "it is not appar-
ent from the regulations--as opposed to the SFRM--under
what circumstances a carrier should expect to receive a
conditional or an unsatisfactory rating." 108 F.3d at 406. At
the time of this accolade the SFRM did not contain the
prescription of sampling procedures that ATA now claims is
indispensable. In fact, the SFRM's specificity has not in any
way been degraded since MST Express.

__________
1 We discuss the grouping of the safety regulations into "acute"
and "critical" categories in more detail at II.B., infra. The calcula-
tion of safety ratings for individual factor areas is covered at II.C.,
infra.

The ATA cites MST Express's statement that "[a] motor
carrier or operator looking at the current regulations cannot
determine ... what safety fitness rating it will receive." Id.
But the regulations condemned in MST Express gave no
guidance at all as to when inspectors would give a poor safety
rating, providing only that a satisfactory rating would be
awarded if a carrier had "adequate" safety management
controls. Id. at 403. "Adequate" was defined in turn as
"appropriate for the size and type of operation of the particu-
lar motor carrier." Id. Thus the case can hardly be read to
support the ATA's theory that it required specificity to the
point of laying out a totally deterministic process. A better
reading is that it merely reflects a rule, suggested in New
Mexico v. EPA, that when a regulation intended to apply a
standard "contribute[s] no extra specificity or clarity" to the
standard it implements, the agency has failed "[to do] the
intended job." 114 F.3d at 293.

As a practical matter, ATA points to no way in which the
overall purpose of the Act--promoting motor carrier safety,
subject of course to protecting carriers' rights--calls for a
promulgation of every detail of the sampling process by
regulation. It is easy to imagine an affirmative reason for
the agency's decision not to subject the sampling procedure to
notice and comment rulemaking--the desire to be able to
vary these technical elements of the process without excessive
delay as experience accrues.

Although the FHWA did not defend the decision not to
incorporate sampling procedures into the regulations on those
grounds in the rulemaking proceedings, neither the ATA nor
TUFS argued that it must place the sampling procedures
there. The ATA did "urge FHWA to include random record
sampling as a component of the final rule establishing a new
safety rating methodology." But ATA was arguing that
FHWA should use random sampling instead of the "focused
sampling" technique the agency ultimately adopted, not that
the statute required the selected technique to be described in
a regulation rather than in the Field Operations Training
Manual, where it in fact appeared. Since the petitioners did
not say why the agency was required to put its sampling

method into the regulation, we cannot fault the agency for
failing to explain its decision. "[A] zero argument deserves a
zero response." ParkView Medical Assocs. v. Shalala, 158
F.3d 146, 149 (D.C. Cir. 1998).

In New Mexico v. EPA, in rejecting a demand for greater
detail, we said that "[e]verything else being equal, the better
a petitioner can demonstrate the feasibility of greater speci-
ficity the more convincing its attack on agency vagueness,"
and that "where the agency itself has adopted highly specific
internal guidelines governing the same subject, it cannot very
plausibly deny feasibility." 114 F.3d at 294 (emphasis omit-
ted). There we cited MST Express, where, of course, the
detail in the SFRM showed that the agency could handily
achieve far greater specificity than the Safety Fitness Proce-
dures contained. Here, as the FHWA's manual does contain
procedures almost as detailed as those the ATA would re-
quire, see Federal Highway Administration, Field Operations
Training Manual, ch. 3 (1997), naturally the FHWA's exclu-
sion of the sampling procedures from the notice-and-comment
regulations cannot be grounded in infeasibility. But it need
not be. The agency's broad discretion and the reasonable-
ness of its choice are enough.

B.Failure to Require a Statistically Significant Sample

The ATA's second claim is that the FHWA arbitrarily
failed to require random selection of a statistically significant
sample of records for review. Instead, the FHWA chose to
use a "focused sampling" technique, set forth in its publicly
available Field Operations Training Manual. The Manual
instructs investigators to "[i]dentify and list drivers and vehi-
cles that have been involved in accidents and drivers and
vehicles found in violation during roadside inspections. These
drivers and vehicles will be used to focus the review...."
Federal Highway Administration, Field Operations Training
Manual, ch. 3, at 4. Investigators are also to focus on
drivers cited for hours-of-service violations when determining
the level of compliance with those regulations. Id. at 10. It
is undisputed that the records and vehicles examined first
under the agency's "focused sampling" procedure are more

suspect--that is, more likely to exhibit violations than ran-
domly selected records and vehicles. It follows that the
agency will find a higher violation rate using focused sam-
pling than it would if it used the random method petitioners
favor.

According to the ATA, compliance reviews under the rule
do not produce a "representative picture of a carrier's safety
fitness." Because random sampling is not required, the ATA
argues, a "skewed sample" may produce a "skewed under-
standing of a carrier's safety management controls." In the
ATA view the FHWA therefore fails to achieve its avowed
purpose, the creation of "a reasonable approach for assigning
a safety rating which best describes the current safety fitness
posture of a motor carrier as required by the safety fitness
regulations." 62 Fed. Reg. 60,035, 60,045 (1997).

ATA appears to assume that any rational system must
estimate the proportion of violations to be found in the total
population of a carrier's documents. We agree, of course,
that if everything else were equal, information about this
proportion would be useful. But other measures are also
useful, and the agency may--if it has some reason--rationally
prefer them.

The data yielded by the FHWA method have value, certain-
ly for ranking carriers. It is true that a 15% violation rate in
a sample composed partly or wholly of suspect documents
does not support the inference that the violation rate for the
entire document population is 15%. But the fact that the
suspect-document population rate is not equal to the overall
violation rate and does not mean the two rates are not
correlated. GDP and personal consumption are correlated,
though hardly equal. It seems reasonable to believe that
carriers with higher observed violation rates under FHWA's
system--drawing a sample of suspect documents first, with
(for many factors) minimum sample numbers based on size of
carrier--will generally have higher overall violation rates.

It is true that some carriers will have a higher proportion
of suspect documents than others. But this does not destroy
the value of FHWA's method. Consider two carriers of equal

size, X and Y, where the sample from X has the higher
observed violation rate. It is reasonable to infer that X's
overall violation rate is higher regardless of which carrier has
more suspect documents. To illustrate, we present two limit-
ing cases: In Case 1, X has so many suspect documents that
the X sample is entirely made up such records, while Y has
no suspect documents. In this case, the carrier with more
suspect documents (i.e., more roadside violations, accidents,
etc.) unsurprisingly has a higher violation rate. In Case 2 we
assume the reverse--that X's sampled documents are all non-
suspect and Y's are all suspect. X's non-suspect documents
show a higher violation rate than Y's suspect documents.
The result is a little surprising, but all it means is that is that
in this particular instance "suspectness" turned out not to
have been a good proxy for violation rate for those two
carriers. The inference that X was the worse violator is not
impaired.

Part of ATA's problem arises from a misreading of the
rules. The SFRM says that "[w]hen a number of documents
are reviewed, the number of violations required to meet a
pattern must be equal to 10 percent of those examined." 62
Fed. Reg. 60,035, 60,044 (1997). ATA acts as if this meant
that an overall 10 percent rate of noncompliance with a
critical regulation is satisfactory. If that were true, it would
follow that only a sampling procedure aimed at estimating the
total rate of noncompliance would be rational. But the total
rate is not the standard. Rather than setting the acceptable
noncompliance rate at 10 percent of what all documents would
show, the SFRM sets it at 10 percent among examined
documents.

As we said, the agency must of course have some reason
for preferring focused over random sampling. It did. In the
statement accompanying promulgation of the final rule, the
FHWA defended its decision on the grounds that "it is in the
best interest of public safety to continue to focus its limited
resources on drivers and vehicles most likely to be in violation
of the regulations." 62 Fed. Reg. 60,035, 60,039 (1997).

To understand the FHWA's rationale, it is helpful to under-
stand the distinction that the agency draws between "acute"
and "critical" regulatory violations, a distinction unchallenged
here. The FHWA defines acute regulations as those with
respect to which "noncompliance is so severe as to require
immediate corrective actions by a motor carrier regardless of
the overall safety posture of the motor carrier." 49 CFR 385
App. B, II(b), 62 Fed. Reg. at 60,044. An example is 49 CFR
s 382.201, which (motorists may be cheered to read) prohibits
knowing use of a driver with a blood alcohol concentration of
0.04% or greater. 49 CFR 385 App. B, VII, 62 Fed. Reg. at
60,045. Each instance of an acute violation affects the rele-
vant factor rating. 49 CFR 385 App. B, II(g), 62 Fed. Reg. at
60,044. Critical regulations are defined as those with respect
to which "noncompliance relates to management and/or oper-
ational controls. These are indicative of breakdowns in a
carrier's management controls." 49 CFR 385 App. B, II, 62
Fed. Reg. at 60,044. An example is 49 CFR s 391.45(b),
which prohibits carriers from using a driver who has not been
medically examined and certified during the past 24 months.
49 CFR 385 App. B, VII, 62 Fed. Reg. at 60,046. Violations
of critical regulations do not affect the safety rating in the
relevant factor unless a "pattern of noncompliance" is ob-
served. There is no "pattern of noncompliance" unless 10%
of reviewed documents, and at least two documents, show
violations. 49 CFR 385 App. B., II(g), 62 Fed. Reg. at 60,044
(1997). For acute violations the reasonableness of choosing
focused over random sampling is clear. Even a single acute
violation is serious enough to require "immediate corrective
actions" and to affect the carrier's safety rating for the
relevant factor.2 Thus it is eminently reasonable for the
FHWA to adopt a method designed to miss as few such
violations as possible. Examining the documents and vehicles
most likely to exhibit violations does so.

The FHWA's rationale is less obvious for critical violations,
because the agency has decided that a violation rate below

__________
2 The procedure for calculating the safety ratings in each factor
area is described in II.C., infra.

10% will not affect the safety rating. Why not require
random sampling but impose a lower tolerance threshold?
The agency's answer is that by using a technique likely to
detect as many violations as possible, it can most effectively
discover areas requiring carriers' attention so that carriers
can improve compliance and thus, presumably, safety. Ran-
dom sampling is less effective in accomplishing this goal.
Although this reasoning does not emerge with limpid clarity
from the relevant pages of the Federal Register, the agency's
concern with husbanding resources for maximum safety effect
and fostering full compliance is evident. See 62 Fed. Reg. at
60,039. The ATA says that trying to locate problems is
justifiable only for enforcement activities, not for assigning
safety ratings. But even in choosing among safety rating
methods it makes sense for the agency to look to the overall
goal of the statute, namely safety.

ATA can make no claim that the agency's methodology
makes the resulting ratings unsuitable for their ultimate use.
They are made "available to other federal agencies and to the
public," MST Express, 108 F.3d at 403, and, as we have said,
there is no showing that the system produces skewed rank-
ings. The direct legal effects have been limited. In the past,
the only apparent legal consequence has been that the recipi-
ent of an "unsatisfactory" rating has been prohibited from
"operating a commercial motor vehicle to transport ... [h]az-
ardous materials ... or [m]ore than 15 passengers." 49 CFR
s 385.13(a). The 1998 Act expands the effect, prohibiting any
unfit owner or operator from operating motor vehicles in
interstate commerce starting 60 days after the determination.
See Pub. L. No. 105-478, s 4009(a), 112 Stat. 107, 405-06
(1998) (to be codified at 49 U.S.C. s 31144(c)(1)). ATA has
not shown that the system will produce an unfitness rating
that is arbitrary.

Part of ATA's objection on the sampling issue is that the
SFRM fails to specify how far inspectors are to go in plowing
through a carrier's documents. This flexibility produces the
possibility that an inspector could manipulate the process.
Consider two carriers, each with 1000 documents, which the
inspector attacks worst first, with violations (in each case)

showing in the first ten but not beyond. If the inspector
looks at 100 for carrier A and 106 for carrier B, that choice
alone (assuming ordinary rounding practices) puts A but not
B on the wrong side of the 10 percent divide.

To some extent the Manual addresses this problem by
setting minimum levels of document review for specific types
of rules. See Federal Highway Administration, Field Opera-
tions Training Manual, ch. 3 (1997), at 5-6 (driver factor
regulations), 7-9 (operational factor regulations), 9-10 (opera-
tional factor regulations). For these categories of records,
the minimum levels get at the most troubling aspect of the
problem--the chance that an inspector who had it in for a
particular carrier might condemn it to an unsatisfactory
rating by stopping at a very low number of documents.

The Manual does not prescribe an upper limit on the
number of documents to be reviewed. But it does guide the
inspector's decision to expand the review, stating that addi-
tional driver files are to be reviewed "if the focused review
indicates substantial noncompliance," id. at 6, and that "in-
creased attention may be required in certain areas of a
carrier's operation that have revealed noncompliance." Id. at
10. Since inspections that include extra documents focus on
problem areas, they are unlikely to yield systematically better
ratings for more extensively scrutinized operators. In the
terms of the Carrier A/Carrier B hypothetical, the six addi-
tional Carrier B documents reviewed will be in problem areas,
so there is little reason to believe they are less likely to show
violations than the first 100. It was reasonable for FHWA to
suppose that a system that imposes a rigid constraint on the
extent of the review would yield less accurate ratings than
one that allows inspectors to probe areas that they judge
suspicious.

Furthermore, forcing the agency to specify an upper limit
on the extent of each review runs counter to the general
principle that courts are ill-positioned to scrutinize an agen-
cy's allocation of its scarce resources. See, e.g., Heckler v.
Chaney, 470 U.S. 821, 827 (1985).

The discretion that FHWA's scheme confers on inspectors
can be abused, of course; intentionally and arbitrarily dis-
criminatory enforcement of a statute can be unconstitutional.
See Brandon v. District of Columbia Board of Parole, 823
F.2d 644, 650 (D.C. Cir. 1987). But we can see no basis for
restricting agents' discretion on the mere assumption--com-
pletely unsupported by factual allegations--that otherwise
inspectors will act in bad faith.

The ATA also makes a procedural claim here--that the
notice-and-comment rule is defective because it specifies no
sampling procedure at all; only the Manual does so. Insofar
as this is just a repeat of its early claim, our prior discussion
is the answer. Beyond that claim, ATA offers no supporting
reason. Here we review whether the current system for
assigning ratings is arbitrary. If the FHWA changes its
policy, actions under the new policy will be subject to the
same standard of review.

C.Treatment of Hours-of-Service Violations

In its final challenge ATA claims that the FHWA's treat-
ment of violations of its "hours-of-service" regulations is
unduly harsh.

Outside the hours-of-service area, a carrier is assessed one
"point" for each violation of an acute regulation and one for
each pattern of violations of a critical regulation.3 49 CFR
385 App. B, II(g), 62 Fed. Reg. 60,035, 60,044 (1997). But for
the regulations governing drivers' hours of service, 49 CFR
395, a pattern of noncompliance (located within the "opera-
tional" safety factor) costs the carrier two points. Id. Each
"point" received with respect to a given factor reduces the
rating in that factor by one level--from satisfactory to condi-
tional or from conditional to unsatisfactory. 49 CFR 385
App. B, II.C(b), 62 Fed. Reg. at 60,045.

The ATA argues that this double assessment is irrational
because it amounts to disparate treatment of "functionally
indistinguishable" violations. Its best claim on this point is

__________
3 The difference between "acute" and "critical" violations is
explained at II.B., supra.

that the FHWA's explanation of the rule merely defends
enforcement of the hours-of-service regulation--without ex-
plaining why patterns of violation of that rule deserve to be
treated more harshly than violations of other critical regula-
tions.

What the agency did say, however, was enough. We look
at the decision to assign two points to patterns of violation of
the hours-of-service regulations in the context of the agency's
overall process for turning observed violations into a rating.
First, the types of regulatory default that an inspection turns
up are of widely varying seriousness. This variation is cap-
tured to some extent by the critical-acute distinction, but
there is also a good deal of variation among the regulations
designated critical. For instance, failing to maintain a medi-
cal examiner's certificate in a driver's qualification file is a
critical violation. 49 CFR 385 App. B, VII, 62 Fed. Reg. at
60,046 (1997). ATA's theory that all the critical violations are
"functionally indistinguishable" would require us to say that
failing to maintain a medical examiner's certificate is no
different from exceeding the maximum allowable daily driving
time; this is transparently not the case.

Even after rejecting the ATA's argument that all critical
violations are functionally indistinguishable and must be
treated identically, we must consider whether the decision to
assign two points for hours-of-service violations is rational in
the context of the rating system as a whole. The core aspects
of the context are the division of regulations as between acute
and merely critical, the number of regulations governing any
subject matter (such as hours of service), and the distribution
of subject-matter regulations among the six safety factors.

To illustrate the effect of context, we compare the regula-
tions governing fatigue with the regulations governing drug
and alcohol use and testing. There are three substantive and
four recordkeeping hours-of-service regulations that affect
each carrier. The substantive ones are the daily driving rule,
49 CFR s 395.3(a)(1), the daily on-duty rule, id. s 395.3(a)(2),
and the weekly on-duty rule, id. s 395.3(b). The recordkeep-
ing rules require that records of duty status be created, id.

s 395.8(a), forwarded to the carrier's home office, id.
s 395.8(i), maintained there for six months along with sup-
porting documents, id. s 395.8(k)(1), and not falsified, id.
s 395.8(e). Even an unsatisfactory rating for the "operation-
al" factor (where all these violations are located) would not in
itself lower a carrier's rating below "conditional"; a carrier
can earn a conditional overall rating even with an unsatisfac-
tory rating on a single factor. See Motor Carrier Safety
Rating Table, supra, at I.B. By contrast, drug and alcohol
matters are the subject of no fewer than eight acute (and two
critical) regulations in the "driver" factor, and three more
acute regulations in the operational factor. Because two
separate factors include drug-and-alcohol limits, failure to
comply with them can in itself cause a carrier to receive an
unsatisfactory rating, while failure to comply with hours-of-
service regulations cannot. Furthermore, there are more
than twice as many ways for failure to comply with drug rules
to cause points to be assessed. Finally, because most of
these drug and alcohol rules are designated acute, they have
no 10 percent safe harbor.

Indeed, it would be plausible to argue that the SFRM
treats fatigue too leniently. One study in the record indicates
that fatigue was the "probable primary cause" of 41% of
studied accidents, while alcohol impairment was involved in
only 4% of studied accidents; drug use was apparently not a
factor in any of the studied accidents. See Transportation
Research and Marketing, A Report on the Determination
and Evaluation of the Role of Fatigue in Heavy Truck
Accidents 14 (1985).

The FHWA's decision, then, was not just to assess two
points for patterns of violation of the hours-of-service regula-
tions, but also to label none of those regulations acute and to
confine all of them to the operational factor. In light of the
conditions the FHWA faced in crafting this element of the
SFRM--the importance of controlling fatigue, the fact that
the hours-of-service regulations are the only ones dealing
with fatigue--we find no irrationality. And the agency point-
ed to each of these factors in justifying its decision. See 62
Fed. Reg. 28,826, 28,829 (1997), 62 Fed. Reg. 60,035, 60,040

(1997). Although the agency's defense may be of "less than
ideal clarity," its "path may be reasonably discerned." Bow-
man Transportation, Inc. v. Arkansas-Best Freight System,
Inc., 419 U.S. 281, 286 (1974). Further, the agency's treat-
ment of the issue constituted an adequate response to critical
comments.

The ATA also argues that the FHWA should have consid-
ered the weakness of the relationship between hours-of-
service violations and fatigue in determining how much
weight to assign fatigue-related violations. The record indi-
cates that the FHWA did consider this factor and recognized
that the present rules may not target hours of service opti-
mally. 62 Fed. Reg. 60,035, 60,040 (1997) ("[U]ntil the ongo-
ing rulemaking efforts to better regulate fatigue are conclud-
ed, the FHWA believes it is important to continue to assign
two points for a pattern of violations of a Part 395 'critical'
regulation.") That there are flaws in the current substantive
regulations does not, given the evidence indicating that long
periods of driving cause accidents, render the agency's treat-
ment of the rules arbitrary and capricious. See Patrick
Hamelin, Surveys about Professional Truck Drivers: Profes-
sional Characteristics of Truck Drivers: Situations, Condi-
tions and Duration of Work: Road Safety Effects 4 (1990)
("over-risk of involvement in accidents beyond ten and more
hours of work span"); NTSB, Safety Study: Fatigue, Alco-
hol, Other Drugs, and Medical Factors in Fatal-to-the-Driver
Heavy Truck Crashes 78 (1990) ("Research evidence indicates
that accident rates for trucks tend to increase dramatically
the longer the driver continues beyond 8 hours of continuous
driving.").

III. TUFS' Claims

A.Failure to Establish Safety Fitness Procedures for
New Carriers

TUFS argues that the FHWA has failed to promulgate
"specific initial and continuing requirements" for motor carri-
ers to prove safety fitness as required by s 31144. Its focus,
in fact, is on the word "initial"; no one could seriously argue

that the FHWA has failed to promulgate "continuing" re-
quirements for carriers already in operation.

Although the Secretary does not raise the issue of standing
it is our duty to do so where it is questionable. See, e.g.,
Catholic Social Service v. Shalala, 12 F.3d 1123, 1125 n.2
(D.C. Cir. 1994). Here, though it is surely questionable,
TUFS passes--if barely. TUFS describes its members as
"various business entities whose operations subject them to
federal regulation of interstate trucking," and complains that
the FHWA's regulations "cannot be used to keep dangerous
trucking companies out of interstate operation." We infer a
claim that TUFS' members are particularly exposed to injury
from unsafe truckers, although TUFS does not itself make
the connection. Such a claim satisfies both the Constitutional
and prudential standing requirements to bring a suit under a
highway safety statute, as we held in International Brother-
hood of Teamsters v. Pea, 17 F.3d 1478, 1482-83 (D.C. Cir.
1994).

The FHWA does have a safety-related requirement in
place to determine whether a carrier's application for new
carrier authority should be approved. Carriers are required
to provide proof of financial responsibility. 49 CFR
s 365.109(a)(5) (1997). This is relevant to safety; indeed,
operating a vehicle without "minimum levels of financial
responsibility" is an acute violation of safety regulations, and
failure to maintain proof of financial responsibility is a critical
violation. See 62 Fed. Reg. 60,035, 60,045 (1997). It is a
modest safety fitness requirement, to say the least, but of
course it is designed for new carriers, which by definition lack
a record on which to base a safety determination. In the
absence of any suggestion from TUFS as to what an adequate
safety rating system for new carriers ought to entail, we are
in no position to hold the FHWA's system insufficient.
TUFS directs none of its fire to the issue of carriers that in
some degree represent continuations of prior carriers, possi-
bly with a bad record, so we need not address it.

TUFS also claims that it is "unconscionable that the gov-
ernment has no legal means to shut down dangerous opera-

tions." While this may have been true, it was not because of
the FHWA's regulations. The 1984 Act conferred no such
power on the agency. The 1998 Act does confer it, see Pub.
L. No. 105-178, s 4009(a), 112 Stat. 107, 405-06, to be codi-
fied at 49 U.S.C. s 31144(c)(1). As we said earlier, none of
the parties even mentioned the 1998 Act, and in any event a
judgment aimed at pushing the FHWA into action under the
1998 Act would be premature, as the Act is less than eight
months old. In fact the Secretary appears to have been
taking steps to implement his new powers. See 63 Fed. Reg.
49,630, 49,631 (1998) (request for comments on 1998 Act
implementation encouraging "all interested parties to submit
written comments through November 22 on any TEA-21
provision").

B.Invalidation of Existing Safety Ratings

TUFS also argues that this Court's decision in MST Ex-
press requires the invalidation of all existing safety ratings.
TUFS lacks standing to raise the issue, however. It asserts
no basis for organizational standing other than that its pur-
poses include promotion of the "just and efficient administra-
tion of federal highway safety statutes," a generalized interest
that is plainly inadequate. See Sierra Club v. Morton, 405
U.S. 727, 739 (1972). And it does not claim that any of its
members has suffered or is about to suffer injury because of
the application of the old rating system. Since Article III
prohibits federal courts from recognizing injuries that are
neither "actual" nor "imminent," see Lujan v. Defenders of
Wildlife, 504 U.S. 555, 560 (1992), we have no authority to
reach the claim.

IV. Claims of Intervenor

Intervenor Petroleum Marketers Association of America
("PMAA") argues that the FHWA was arbitrary and capri-
cious in deciding to use "preventable or recordable" accidents.
In its view the agency can only reasonably rely on accidents
where the driver has been found to be at fault before a "fair
and impartial tribunal." We need not address PMAA's argu-
ments with respect to "preventable" accidents, since FHWA

is no longer using that criterion to assign the initial safety
rating. See 62 Fed. Reg. 28,826, 28,827 (1997). And we
think it reasonable to use all accidents rather than just those
in which the operator's driver is found at fault, in light of the
uncertainty as to whether determinations of fault will be
made with respect to every accident and the infirmities of the
fault-determination process.

The PMAA also describes itself as an organization of small
haulers which are obligated to drive under adverse conditions
(e.g., to deliver heating oil in winter), and argues that FHWA
did not take its industry's character into account sufficiently
in formulating the rule. But the FHWA explicitly took the
effect of the accident factor on small carriers into account by
providing that a safety rating will not be reduced because of a
single accident during each one-year period. 49 CFR 385
App. B, II.B(d), 62 Fed. Reg. 60,035, 60,044 (1997). Nor do
we think the agency irrational in failing to make special
accommodations for the oil delivery industry, in light of the
relatively high acceptable accident rate and the existence of
an appeals process in which carriers can make a case that
"the recordable rate is not a fair means of evaluating its
accident factor." 49 CFR 385, II.B(e), 62 Fed. Reg. at 60,044.

Conclusion

The petitions for review and the claims of the intervenor
are denied.

So ordered.