735 F.2d 1525 (D.C. Cir. 1984), 83-1228, International Broth. of Teamsters, Chauffeurs, Warehousemen and Helpers of America v. United States

Docket Nº:83-1228.
Citation:735 F.2d 1525
Party Name:INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, Petitioner, v. UNITED STATES of America, Respondent, American Trucking Association, Inc., Intervenor.
Case Date:June 12, 1984
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit

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735 F.2d 1525 (D.C. Cir. 1984)




UNITED STATES of America, Respondent,

American Trucking Association, Inc., Intervenor.

No. 83-1228.

United States Court of Appeals, District of Columbia Circuit

June 12, 1984

Argued Feb. 13, 1984.

As Amended .

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Petition for Review of a Rulemaking Order of the Federal Highway Administration.

Joseph E. Santucci, Jr., Washington, D.C., with whom Robert M. Baptiste and Roland P. Wilder, Jr., Washington, D.C., were on the brief, for petitioner.

Kathleen S. Markman, Atty., Dept. of Transportation, Washington, D.C., for respondent.

Nelson J. Cooney and Robert A. Hirsch, Washington, D.C., entered appearances for intervenor.

Before WRIGHT and SCALIA, Circuit Judges, and MacKINNON, Senior Circuit Judge.

Opinion for the court filed by Circuit Judge J. SKELLY WRIGHT.

J. SKELLY WRIGHT, Circuit Judge:

The International Brotherhood of Teamsters, petitioner in this case, seeks to have this court overturn new regulations issued after notice and comment rulemaking by the Bureau of Motor Carrier Safety of the Federal Highway Administration (the agency). In order to promote highway safety, the agency or its predecessors have for 40 years regulated the number of consecutive hours that a truck driver is allowed to drive. See 49 C.F.R. Sec. 395 (1982) (codification of current regulations). To enforce these regulations, the agency has traditionally required that drivers keep a log detailing the amount of time they spend on duty. The log had to be kept on a particular form of the kind specified by the agency.

In the rulemaking at issue here, see 47 Fed.Reg. 53383 (Nov. 26, 1982), the agency revamped the logkeeping requirements. The changes were essentially threefold: (1) The new rules permit drivers to use recordkeeping forms of their own design, rather than the standardized forms specified by the prior regulations. (2) The new rules permit drivers to omit from their recordkeeping forms seven items of information included on the old mandatory forms. (3) The new rules substantially broaden the exemption from the recordkeeping requirement for certain local drivers. After briefly recounting some background information concerning the recordkeeping requirements, we discuss each of these three specific changes in turn.


Since 1938 the agency or its predecessors have required drivers to keep logs, which are of crucial importance in the enforcement

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of the regulations governing maximum driving and on-duty time. Enforcement agents refer to the logs in roadside inspections; if an examination of the log indicates that the driver is not in compliance with the maximum hours regulations, he may be placed off duty. 47 Fed.Reg. at 53384. In addition, the agency conducts management audits at terminals to determine a carrier's overall compliance with the maximum hours regulations. Id. The agency has noted that the log is "the principal document that is accepted by the court system as evidence to support enforcement actions for excess hours of service violations." Id. In the agency's words, "Currently, [the driver's log] is the only single universally recognized instrument available to both Government and industry to insure compliance with the hours of service rules." Id. The agency has underlined its belief in the importance of the recordkeeping requirement by stating that "[t]ermination of [the] recordkeeping requirement * * * would be contrary to the very essence of the safety regulatory philosophy of the [agency] and in contradiction to the Act under which it was promulgated." Id. The importance of a recordkeeping requirement is not at issue in this case.

The form of the log changed only rarely over the years, most notably in 1952 and 1965. See id. Before 1977 drivers had to fill out a separate form for each 24-hour period on duty. However, on November 4, 1977 the agency promulgated regulations permitting drivers to combine the single-day form, MCS-139, with copies of a supplementary form, MCS-139A, to enable them to keep track of periods as long as seven days without filling out a separate form for each day. See 42 Fed.Reg. 58525 (Nov. 10, 1977). Until the current regulations, however, drivers have had a choice between at most two kinds of forms (single-day or multi-day) on which they could record the required information.

The log forms in use before the current rulemaking contained two important types of information. Most important was a "grid" on which a driver would indicate for each hour of the day his duty status: "off duty," "sleeper berth," "driving," "on duty (not driving)." See, e.g., 49 C.F.R. Sec. 395.8 at 489 (1982) (example of completed log under old rules). In addition, the rules required the driver to fill in much other information, such as the date, total mileage, vehicle identification, name of co-driver, home terminal, etc. Under the old rules the driver had to keep a copy of the log in his possession while on duty for 30 days and the driver's employer had to keep the logs on file for 12 months. 49 C.F.R. Secs. 395.8(s), 395.9(u) (1982).


The agency's new rules retain the grid used on its earlier forms, as well as much (but not all, see Part III infra ) of the information that was formerly required. The agency continues to require that drivers and carriers retain the logs for the same time periods as under the old rules. The major difference is that the drivers need no longer use the standardized forms prescribed by the agency (although those forms continue to be perfectly acceptable). Instead, the driver may use forms of different designs as long as those forms contain at a minimum the grid plus certain other prescribed information.

The point of the change is to reduce the paperwork burden. The logkeeping forms under the old rules had to contain precisely the information specified under those rules, no more and no less. Therefore, many carriers were forced to insist that their drivers fill out one form for internal company purposes (for example, keeping track of drivers' time for payroll records) and another form to meet the agency's logkeeping requirements. Because the agency's logs in form or content were unsuitable for internal company use, the carriers and drivers in effect had to keep two sets of books. This burden has been eliminated under the new rules, which approve the use of company-designed forms in place of the formerly-required logs, as long as the company's forms contain the grid plus other specified information.

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Incredibly, the union in this case addresses its major challenge to this innocuous-seeming change in rules. The union argues that the change was arbitrary and capricious under Section 10 of the Administrative Procedure Act, 5 U.S.C. Sec. 706(2)(A) (1982), because the agency illicitly traded safety concerns for the economic benefits of the reduction in paperwork.

The agency's authority to issue safety regulations derived from 49 U.S.C. Sec. 304(a)(1) (1976), which stated:

It shall be the duty of the [agency]--

(1) To regulate common carriers by motor vehicle * * *, and to that end the [agency] may establish reasonable requirements with respect to * * * uniform systems of accounts, records, and reports, preservation of records, qualifications and maximum hours of service of employees, and safety of operation and equipment. 1

The union's primary argument is that this provision prohibits the agency from taking any action that advances any other goal at the expense of a decrease--however slight--in highway safety. In addition, the union argues that the former logkeeping requirement should be accorded a particularly strong presumption of validity because it had been a (moderately) consistent and (very) longstanding agency interpretation of its...

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