Advocates for Hwy. and Auto Safety v. Fed. Motor

• Decision Date: 02 December 2005
• Docket Number: No. 04-1236.,No. 04-1233.,No. 04-1418.,04-1233.,04-1236.,04-1418.
• Citation: 429 F.3d 1136
• Parties: ADVOCATES FOR HIGHWAY AND AUTO SAFETY, Petitioner v. FEDERAL MOTOR CARRIER SAFETY ADMINISTRATION, Respondent.
• Court: U.S. Court of Appeals — District of Columbia Circuit

429 F.3d 1136

ADVOCATES FOR HIGHWAY AND AUTO SAFETY, Petitioner v. FEDERAL MOTOR CARRIER SAFETY ADMINISTRATION, Respondent.

No. 04-1233.

No. 04-1236.

No. 04-1418.

United States Court of Appeals, District of Columbia Circuit.

Argued September 12, 2005.

Decided December 2, 2005.

COPYRIGHT MATERIAL OMITTED

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.

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 HARRY T. EDWARDS.

HARRY T. 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.Nov. 26, 2002). Pursuant to a settlement agreement, the agency 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 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. 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 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...