290 F.3d 761 (6th Cir. 2002), 00-3891, A.D. Transport Express Inc. v. U.S.

Docket Nº:00-3891
Citation:290 F.3d 761
Party Name:A.D. Transport Express Inc. v. U.S.
Case Date:January 24, 2002
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit

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290 F.3d 761 (6th Cir. 2002)



UNITED STATES of America; Federal Motor Carrier Safety Administration, Respondents.

No. 00-3891.

United States Court of Appeals, Sixth Circuit

January 24, 2002 [*]

Submitted Nov. 27, 2001

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David E. Jerome (briefed), Jerome & Austin, Northville, MI, for Petitioner.

Edward R. Cohen (briefed), Robert S. Greenspan (briefed), U.S. Dept. of Justice, Civ. Div., App. Sec., Washington, DC, Joseph Solomey (briefed), Federal Highway Administration Office of the Chief Counsel, Washington, DC, for Respondents.

Before GUY and BOGGS, Circuit Judges; CARR, District Judge[**]


CARR, District Judge.

A.D. Transport Express, Inc. petitions for review of a Final Order of the Federal Motor Carrier Safety Administration (FMCSA) denying A.D. Transport's motion for a change of its "conditional" safety rating. The agency issued that rating after it found that A.D. Transport was in violation of 395.8(k)(1) of the Federal Motor Carrier Safety Regulations. 49 C.F.R. 395.8(k)(1).

A.D. Transport argues that the FMCSA's interpretation of 395.8(k)(1) is inconsistent with the clear and unambiguous language of the regulation. A.D. Transport also argues that the FMCSA's ruling was not merely an interpretation of the regulation, but involved rule making that required notice and a comment period.

We find the FMCSA's interpretation is consistent with the language of the regulations. Furthermore, the FMCSA's interpretation does not impermissibly expand the regulations, so that no notice or comment period is necessary. Accordingly, we affirm the FMCSA's Order in all respects.


In late 1999, Congress enacted the Motor Carrier Safety Improvement Act of 1999, Pub.L. No. 106-159, 113 Stat. 1748 (1999). The purposes of the Act are:

(1) to improve the administration of the Federal motor carrier safety program and to establish a Federal Motor Carrier Safety Administration in the Department of Transportation; and

(2) to reduce the number and severity of large-truck involved crashes through

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more commercial motor vehicle and operator inspections and motor carrier compliance reviews, stronger enforcement measures against violators, expedited completion of rulemaking proceedings, scientifically sound research, and effective commercial driver's license testing, recordkeeping and sanctions.

Id. at 4.

On establishing the FMCSA as an administration of the Department of Transportation, Congress identified:

SAFETY AS HIGHEST PRIORITY.— In carrying out its duties, the [FMCSA] shall consider the assignment and maintenance of safety as the highest priority, recognizing the clear intent, encouragement, and dedication of Congress to the furtherance of the highest degree of safety in motor carrier transportation.

Id. at 101 (codified at 49 U.S.C. 113).

Among its responsibilities, the FMCSA must maintain, by regulation, a procedure for determining the safety fitness of commercial motor carriers. See 49 C.F.R. 1.73 (delegating to the Administrator of the FMCSA the function and authority vested in the Secretary of the Department of Transportation by 49 U.S.C, Subtitle IV, part B). Accordingly, the FMCSA has established procedures to determine the safety fitness of motor carriers in 49 C.F.R. Part 385.

Pursuant to Part 385, motor carriers are assigned either a "satisfactory," "conditional," or "unsatisfactory" safety rating. 49 C.F.R. 385.3.1 The safety rating is based on the degree of compliance with the safety fitness standard for motor carriers. 49 C.F.R. 385.5. To meet the safety fitness standard, a motor carrier must demonstrate that it has "adequate safety management controls in place" that ensure compliance with "applicable safety requirements."2 Id.

The factors considered in determining safety fitness and assigning a safety rating include information from safety reviews,

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compliance reviews, and any other data. 49 C.F.R. 385.7. A compliance review is "an on-site examination of motor carrier operations . . . to determine whether a motor carrier meets the safety fitness standard." 49 C.F.R. 385.3.

Following a compliance review, a safety rating is assigned "using the factors prescribed in 385.7 as computed under the Safety Fitness Rating Methodology set forth in appendix B" of Part 385.3 49 C.F.R. 385.9. Once a "conditional" or "unsatisfactory" safety rating is assigned, a motor carrier may correct its deficiencies and request a rating change at any time. 49 C.F.R 385.17. Additionally, if the motor carrier believes there has been an error, the carrier may request that the FMCSA conduct an administrative review. 49 C.F.R. 385.15.

A March, 1999, compliance review at A.D. Transport resulted in a "conditional" safety rating. The investigator's report cited shortcomings with regard to A.D. Transport's method for keeping driver-related records. Section 395.8(k) states, "Retention of driver's record of duty status. (1) Each motor carrier shall maintain records of duty status and all supporting documents for each driver it employs for a period of six months from the date of receipt." 49 C.F.R. 395.8(k).4 The report following the March, 1999, review noted:

Motor Carrier sanitizes toll receipts for company drivers by maintaining them in large boxes. Additionally, company has no means to produce toll receipts for owner operators.

(App. at 18).5

The report required that A.D. Transport:

Require all drivers to submit toll receipts so that records of duty status can be verified for accuracy. The motor carrier must establish a system to produce toll receipts for all owner operators within a reasonable amount of time (2 days). Do not sanitize toll receipts by maintaining them in a manner which would preclude log verification.

(App. at 19).

In response to the report and "conditional" rating, A.D. Transport certified to the FMCSA that it would comply with the Federal Motor Safety Regulations and follow a newly devised Safety Management Plan.

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In January, 2000, The FMCSA conducted a second compliance review at A.D. Transport. At the time of the second review, A.D. Transport had 183 drivers. (App. at 53). The investigator reported that, after completing a tour of the facility:

a list of 25 drivers was provided to Acting Safety Director . . . . This was a request that the motor carrier produce driver's record of duty status for a specific month . . . along with the corresponding fuel Tax Trip Reports...

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