Truckers United for Safety v. Federal Highway Administration

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued March 9, 1998 Decided April 3, 1998

No. 97-1382

Truckers United for Safety,

Petitioner

v.

Federal Highway Administration,

Respondent

On Petition for Review of an Order of the

Federal Highway Administration

Anthony J. McMahon argued the cause and filed the briefs
for petitioner.

Sandra Wien Simon, Attorney, U.S. Department of Jus-
tice, argued the cause for respondent, with whom Frank W.
Hunger, Assistant Attorney General, and Robert S. Green-
span, Attorney, were on the brief.

Before: Randolph, Rogers and Tatel, Circuit Judges.

Opinion for the Court filed by Circuit Judge Rogers.

Rogers, Circuit Judge: Truckers United for Safety
("TUFS"), a nonprofit trade association of motor carriers,
petitions for review of a portion of the regulatory guidance
issued by the Federal Highway Administration (the "Admin-
istration") for private parties seeking to comply with motor
carrier safety regulations. In a set of three questions and
answers published in this guidance, TUFS contends, the
Administration imposed strict liability on trucking companies
for certain regulatory violations committed by their employ-
ees and, in doing so, exceeded its statutory authority and
violated the companies' due process rights. Because these
substantive challenges are not ripe for review, we dismiss the
petition as to these challenges. TUFS also contends that the
Administration should have afforded interested parties notice
and an opportunity to comment under the Administrative
Procedure Act ("APA"). Because the questions and answers
were interpretative rules not subject to notice-and-comment
requirements, we deny the petition for review as to this
challenge.

I.

Under the Motor Carrier Act of 1935 and the Motor
Carrier Safety Act of 1984, the Federal Highway Administra-
tion has the authority to issue regulations pertaining to
commercial motor vehicle safety and to enforce those regula-
tions. See 49 U.S.C. ss 521(b), 31133(a) (1994). Pursuant to
that authority, the Administration promulgated the Federal
Motor Carrier Safety Regulations, including the following
regulations:

s 390.11 Motor carrier to require observance of driver
regulations.

Whenever ... a duty is prescribed for a driver or a
prohibition is imposed upon the driver, it shall be the
duty of the motor carrier to require observance of such

duty or prohibition. If the motor carrier is a driver, the
driver shall likewise be bound.

s 395.3 Maximum driving time.

(a) Except as provided [elsewhere] ... no motor carrier
shall permit or require any driver used by it to drive nor
shall any such driver drive:

(1) More than 10 hours following 8 consecutive hours
off duty; or

(2) For any period after having been on duty 15 hours
following 8 consecutive hours off duty.

(b) No motor carrier shall permit or require a driver of a
commercial motor vehicle to drive, nor shall any driver
drive, regardless of the number of motor carriers using
the driver's services, for any period after--

(1) Having been on duty 60 hours in any 7 consecutive
days if the employing motor carrier does not operate
commercial motor vehicles every day of the week; or

(2) Having been on duty 70 hours in any period of 8
consecutive days if the employing motor carrier oper-
ates commercial motor vehicles every day of the week.

s 395.8 Driver's record of duty status.

(a) Except for a private motor carrier of passengers
(nonbusiness), every motor carrier shall require every
driver used by the motor carrier to record his/her duty
status for each 24 hour period using the methods pre-
scribed [herein]....

...

(e) Failure to complete the record of duty activities of
this section or s 395.15, failure to preserve a record of
such duty activities, or making of false reports in connec-
tion with such duty activities shall make the driver
and/or the carrier liable to prosecution.

...

49 C.F.R. ss 390.11, 395.3, .8 (1997).

The Administration has developed and periodically updated
regulatory guidance in question-and-answer format to assist

parties bound by these regulations. See Regulatory Guidance
for the Federal Motor Carrier Safety Regulations, 62 Fed.
Reg. 16370 (1997) [hereinafter Regulatory Guidance]. In the
most recent edition of this regulatory guidance, published in
the Federal Register on April 4, 1997, the Administration
"consolidated previously issued interpretations and regulatory
guidance materials and developed concise interpretive guid-
ance in question and answer form." Id. at 16370. Three
particular questions and answers within the guidance are of
concern here. First and second, in interpretation of 49
C.F.R. s 395.3:

Question 7: What is the liability of a motor carrier for
hours of service violations?

Guidance: The carrier is liable for violations of the hours
of service regulations if it had or should have had the
means by which to detect the violations. Liability under
the [Federal Motor Carrier Safety Regulations] does not
depend upon actual knowledge of the violations.

Question 8: Are carriers liable for the actions of their
employees even though the carrier contends that it did
not require or permit the violations to occur?

Guidance: Yes. Carriers are liable for the actions of
their employees. Neither intent to commit, nor actual
knowledge of, a violation is a necessary element of that
liability. Carriers "permit" violations of the hours of
service regulations by their employees if they fail to have
in place management systems that effectively prevent
such violations.

Id. at 16424. Third, in interpretation of 49 C.F.R. s 395.8:

Question 21: What is the carrier's liability when its
drivers falsify records of duty status?

Guidance: A carrier is liable both for the actions of its
drivers in submitting false documents and for its own
actions in accepting false documents. Motor carriers
have a duty to require drivers to observe the [Federal
Motor Carrier Safety Regulations].

Id. at 16426. TUFS petitions for review of these three
questions and answers.

II.

TUFS contends that, by enacting a strict liability standard
for motor carriers, the agency exceeded its statutory authori-
ty and violated due process and thus that the offending
questions and answers should be vacated. The Administra-
tion denies that the questions and answers changed the
standards for motor carriers' liability and insists that, until it
has had a chance to apply the regulatory guidance in a
concrete factual setting, this petition is not ripe for review.
The agency is correct: under the test for ripeness announced
in Abbott Laboratories v. Gardner, 387 U.S. 136 (1967), the
issues are not yet fit for judicial decision and TUFS will not
suffer any great hardship from waiting for judicial review in a
more appropriate action. See id. at 149.

Our determination of the fitness prong of the Abbott Labo-
ratories test is guided by Aulenback, Inc. v. Federal High-
way Administration, 103 F.3d 156 (D.C. Cir. 1997). In
Aulenback, a group of petitioners (including TUFS) chal-
lenged the Administration's reliance upon an internal guid-
ance manual for determining whether certain motor carrier
practices posed an "imminent hazard" justifying orders to put
motor carriers out of service under 49 U.S.C. s 521(b)(5)(A).
See Aulenback, 103 F.3d at 159-61. The court held that this
challenge was not ripe for review because the agency had not
had a chance to clarify its position:

the agency has not had an opportunity to explain, in an
authoritative way, the purpose of the Manual and how it
is used. The court thus lacks an authoritative interpre-
tation of the relevant provisions of that text, and petition-
ers fail to demonstrate that the court should consider
their challenge in a factual vacuum.

Id. at 167. Indeed, the court continued, even though the
challenged agency guidance appeared on its face to allow out-
of-service orders when the statute in question would not so
allow, "the [agency] might decline to follow the language of its

Manual or might sufficiently narrow it that under a deferen-
tial standard of review ... , the court might be able to uphold
it." Id. Thus, the court concluded, the challenge was unfit
for judicial review. See id.

The substantive challenges in the instant petition are even
less fit for judicial review than the challenge in Aulenback.
TUFS claims that the three questions and answers clearly
demonstrate the imposition of strict liability on motor carriers
for their drivers' violations of maximum hours and record
keeping regulations. The Administration, on the other hand,
denies that the questions do any such thing; instead, the
agency insists, the regulatory guidance only represents an
attempt to codify already existing law, which, all agree, did
not impose such strict liability on motor carriers for their
drivers' actions. Indeed, the questions and answers do not
seem to impose strict liability on motor carriers; 1 certainly,
they do not do so with the clarity necessary for the court to
intercede without first giving the agency a chance to apply its
regulations in a concrete factual situation. See id. at 167. At
this point, TUFS can only speculate that the regulatory
guidance will be applied in the way they fear.

__________
1 The answer for question 7 states that a carrier is liable only
for violations "if it had or should have had the means by which to
detect the violations"--this implies not strict liability, but negli-
gence. Regulatory Guidance, 62 Fed. Reg. at 16424 (emphasis
added). The answer for question 8 does state that "[c]arriers are
liable for the actions of their employees," but continues: "Carriers
'permit' violations of the hours of service regulations by their
employees if they fail to have in place management systems that
effectively prevent such violations." Id. Again, this seems to
envision imposing liability only upon motor carriers that are at fault
in at least some way. Finally, although the answer for question 21
states that "[a] carrier is liable ... for the actions of its drivers in
submitting false documents," it does not state that carriers will be
strictly liable therefor. Id. at 16426. Rather, it suggests that
carriers will face liability only if they fail to fulfill their "duty to
require drivers to observe the [regulations]." Id. The standard of
liability thus seems to be one for negligence in allowing or failing to
detect drivers' submissions of false documents.

Furthermore, TUFS does not contend that it will suffer
any great hardship from waiting for judicial review in a more
appropriate action, nor does it introduce any evidence to that
effect.2 Although "[a] hardship may be shown when a litigant
is forced to choose between risking serious sanctions and
incurring substantial costs of complying with an allegedly
unlawful agency directive," id. at 168, TUFS is not faced with
that choice. TUFS maintains that the regulatory guidance
replaces negligence with strict liability (that is, liability with-
out fault). Even if this is true, TUFS makes no claim that
motor carriers will change their behavior in any significant
way in order to account for the employee violations for which
they would be liable under strict liability but not negligence.3
To the extent that the motor carriers' liability is expanded
under the questions and answers, they will be able to address
any resulting harm in any adjudication in which the agency
relies upon the regulatory guidance to impose strict liability.4

__________
2 TUFS instead relies on its contention that the petition raises
purely legal issues fit for judicial resolution. It observes that if the
court determined that the issues presented by the case were fit for
review, "there is no need to consider 'the hardship to the parties of
withholding court consideration.' " Action for Children's Television
v. FCC, 59 F.3d 1249, 1258 (D.C. Cir. 1995) (quoting Abbott Labora-
tories, 387 U.S. at 149). However, because the fitness for review of
TUFS petition is suspect, we must also consider the hardship issue.

3 Counsel for TUFS recognized as much at oral argument:

The Court: [The Court is] asking a practical question whether
the members of your association have in fact felt required to
change their practices because of these three answers to these
three questions.

Counsel: They can't change, your honor. You cannot create
perfection, and I suggest that the rule requires perfection.

4 In the addendum to its reply brief, TUFS includes documents
from a recent prosecution of a motor carrier by the Administration
in which, TUFS claims, the Administration has been applying a
strict liability-based enforcement policy. Even assuming these
documents are properly before the court, TUFS' remedy lies in a
challenge in that proceeding or another of its kind, not in the kind
of facial challenge presented in the instant case.

Thus, neither prong of the ripeness inquiry supports
TUFS' petition for review. To the extent that TUFS wishes
to challenge the substance of the regulatory guidance, it must
wait until the Administration actually applies it in a concrete
factual situation; indeed, when and if the Administration does
so, TUFS may find such application unobjectionable. Accord-
ingly, we dismiss the petition for review as to TUFS' argu-
ments that, in promulgating the regulatory guidance, the
Administration has exceeded its statutory authority and vio-
lated the Fifth Amendment.

III.

TUFS' further contention, that the set of three questions
and answers in the regulatory guidance is invalid because the
Administration did not provide interested parties with notice
and an opportunity to comment in accordance with the APA,
is similarly unpersuasive. See 5 U.S.C. ss 553, 706(2)(A)
(1994). Under the APA, legislative rules are subject to
notice-and-comment requirements, whereas interpretative
rules are not. See id. s 553(b); American Mining Congress
v. Mine Safety & Health Admin., 995 F.2d 1106, 1108-12
(D.C. Cir. 1993). To distinguish between the two, the court
asks

whether the purported interpretive rule has 'legal effect',
which in turn is best ascertained by asking (1) whether in
the absence of the rule there would not be an adequate
legislative basis for enforcement action or other agency
action to confer benefits or ensure the performance of
duties, (2) whether the agency has published the rule in
the Code of Federal Regulations, (3) whether the agency
has explicitly invoked its general legislative authority, or
(4) whether the rule effectively amends a prior legislative
rule.

Id. at 1112. Although this inquiry may be "fuzzy" in some
cases, see American Hosp. Ass'n v. Bowen, 834 F.2d 1037,
1046 (D.C. Cir. 1987), in the instant case, each of these
criteria points toward the same conclusion: the three ques-

tions and answers represent interpretative rules not subject
to the APA's notice and comment requirements.

First, as discussed, the three questions and answers do not
appear to impose a new strict liability standard on motor
carriers, and thus the Administration has no apparent need to
rely upon them for authority to take any enforcement action.
The regulations in force both before and after the Adminis-
tration issued the regulatory guidance provided that motor
carriers have a duty to require their drivers' compliance with
the regulations, see 49 C.F.R. s 390.11, and in particular, with
the maximum hours of duty and record keeping regulations
with which the regulatory guidance in question is concerned,
see id. ss 395.3, .8. The regulatory guidance appears only to
elaborate upon that duty, and then only in a manner consis-
tent with earlier applications of the regulations. See Used
Equip. Sales v. Department of Transp., 54 F.3d 862, 866
(D.C. Cir. 1995). Even if the regulatory guidance did not
exist, the Administration could rely upon prior authority to
apply the rules embodied in the three challenged questions
and answers.

Second, the regulatory guidance is not published in the
Code of Federal Regulations. It was published only in the
Federal Register, and the Administration gave no indication
there that it would publish the Regulatory Guidance again
elsewhere. See Regulatory Guidance, 62 Fed. Reg. at 16370.

Third, the Administration did not invoke its legislative
authority in publishing the regulatory guidance. To the
contrary, the Administration explained that this was "inter-
pretive guidance" meant to "provide the motor carrier indus-
try with a clearer understanding of the applicability of many
of the requirements contained in the [Federal Motor Carrier
Safety Regulations] in particular situations." Id. Although
the label an agency places on a rule is not dispositive, see
Action for Children's Television v. FCC, 59 F.3d 1249, 1257
(D.C. Cir. 1995), the label, as indicative of intent, does carry
some weight in our consideration whether the underlying rule
is legislative or interpretative.

Finally, the three questions and answers do not amend a
prior legislative rule. As noted, they appear consistent with
prior law. It is true that the preamble to the regulatory
guidance states that "[a]ll prior interpretations and regulato-
ry guidance ... issued previously in the Federal Register, as
well as [Administration] memoranda and letters, may no
longer be relied upon as authoritative insofar as they are
inconsistent with the guidance published today." Regulatory
Guidance, 62 Fed. Reg. at 16370. The preamble simply puts
carriers on notice that older interpretive materials may now
be outdated. This is consistent with the guidance's purpose
of "consolidat[ing] previously issued interpretations and regu-
latory guidance materials." Id. No substantive change in
prior law is apparent.

All four factors indicate that the Administration was not
required to afford interested parties notice and an opportuni-
ty to comment before promulgating the three questions and
answers (and, concomitantly, that the three questions and
answers do not have the binding effect of legislative rules).
Hence, TUFS' claim under the APA fails, and we deny the
petition for review as to that claim.