Am. Trucking Associations, Inc. v. Fed. Motor Carrier Safety Admin.

• Decision Date: 02 August 2013
• Docket Number: Nos. 12–1092,12–1113.,s. 12–1092
• Parties: AMERICAN TRUCKING ASSOCIATIONS, INC., Petitioner v. FEDERAL MOTOR CARRIER SAFETY ADMINISTRATION and United States of America, Respondents. Owner–Operator Independent Drivers Association, Inc., et al., Intervenors.
• Court: U.S. Court of Appeals — District of Columbia Circuit

724 F.3d 243

AMERICAN TRUCKING ASSOCIATIONS, INC., Petitioner

v.FEDERAL MOTOR CARRIER SAFETY ADMINISTRATION and United States of America, Respondents.

Owner–Operator Independent Drivers Association, Inc., et al., Intervenors.

Nos. 12–1092, 12–1113.

United States Court of Appeals,District of Columbia Circuit.

Argued March 15, 2013.

Decided Aug. 2, 2013.

On Petitions for Review of a Final Rule Issued by the Federal Motor Carrier Safety Administration.

Erika Z. Jones argued the cause for petitioner American Trucking Associations, Inc. and intervenors in support of petitioner. With her on the briefs were Adam C. Sloane, Richard P. Caldarone, Prasad Sharma, Richard S. Pianka, Paul D. Cullen, Sr., Paul Damien Cullen, Jr., Joyce E. Mayers, Karyn A. Booth, John M. Cutler, Jr., and R. Eddie Wayland.

Richard P. Schweitzer and Craig M. Cibak were on the brief for amici curiae American Bakers Association, et al. in support of petitioner.

Scott L. Nelson argued the cause for petitioners Public Citizen, et al. With him on the briefs were Allison M. Zieve, Henry M. Jasny, and Gregory A. Beck.

William B. Trescott, pro se, was on the briefs for intervenor in support of Public Citizen, et al.

Jonathan H. Levy, Attorney, U.S. Department of Justice, argued the cause for respondents. With him on the brief were Stuart F. Delery, Acting Assistant Attorney General, Matthew M. Collette, Attorney, Paul M. Geier, Assistant General Counsel for Litigation, U.S. Department of Transportation, and Peter J. Plocki, Deputy Assistant General Counsel for Litigation.

Erika Z. Jones, Adam C. Sloane, Richard P. Caldarone, Prasad Sharma, Richard S. Pianka, Paul D. Cullen, Sr., Paul Damien Cullen, Jr., Joyce E. Mayers, Karyn A. Booth, John M. Cutler, Jr., and R. Eddie Wayland were on the brief for intervenors American Trucking Associations, Inc. et al., in support of respondents.

Before: BROWN and GRIFFITH, Circuit Judges, and RANDOLPH, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge BROWN.

BROWN, Circuit Judge.

In this case we consider two challenges to the 2011 Hours of Service (HOS) rule issued by the Federal Motor Carrier Safety Administration (FMCSA). American Trucking Associations, Inc. (ATA), petitioner in Case No. 12–1092, asserts that the new safety-oriented provisions in the final HOS rule are overly restrictive and costly. By contrast, various public interest organizations and individual truck drivers (collectively “Public Citizen”), petitioners in Case No. 12–1113, claim the rule is insufficiently protective of public safety. The agency comes down squarely in the middle, believing it got everything “just right.”

Recognizing that the arbitrary and capricious standard is “highly deferential” and “presumes agency action to be valid,” Am. Wildlands v. Kempthorne, 530 F.3d 991, 997 (D.C.Cir.2008), we conclude that what remains of the 2003 Final Rule after two remands and three rulemakings are highly technical points best left to the agency. We therefore generally affirm the rule and vacate only the agency's application of the 30–minute break to short-haul drivers.

I. Background

This protracted rulemaking traces its beginnings to 1999, the year Congress passed the Motor Carrier Safety Improvement Act, Pub.L. 106–159, 113 Stat. 1748, and created the FMCSA. Tasked with making the nation's roads safer, the new agency's first rulemaking proposed significant revisions to the regulations that had governed trucking operations since 1962. See Hours of Service of Drivers; Driver Rest and Sleep for Safe Operations, 65 Fed.Reg. 25,540 (May 2, 2000) (2000 NPRM). That effort concluded three years later in 2003 with the promulgation of a final rule that increased the daily driving limit from 10 to 11 hours; reduced the daily on-duty limit from 15 to 14 hours; increased the daily off-duty requirement from 8 to 10 hours; and created a new exception to the weekly on-duty limit known as the 34–hour restart. See Hours of Service of Drivers; Driver Rest and Sleep for Safe Operations, 68 Fed.Reg. 22,456, 22,457 (April 28, 2003) (2003 Final Rule).

But as is often the case, the interested public did not go quietly. Trucking industry associations and safety-oriented public interest groups long at odds with each other—and the agency—pushed back against the rule. Public Citizen challenged the 2003 Final Rule as arbitrary and capricious. We agreed. See Public Citizen v. FMCSA, 374 F.3d 1209, 1216 (D.C.Cir.2004). Because FMCSA had “failed to comply with [the] specific statutory requirement” to “ensure that ... the operation of commercial motor vehicles does not have a deleterious effect on the physical condition of the operators,” 374 F.3d at 1216 (internal quotation marks omitted), we vacated the rule in its entirety, id. at 1223.¹ In response, Congress enshrined the 2003 Final Rule as law until FMCSA could promulgate a new rule, seePub.L. No. 108–310, 118 Stat. 1144 (2004), which the agency did in 2005, see Hours of Service of Drivers, 70 Fed.Reg. 49,978 (Aug. 25, 2005) (2005 Final Rule).

Nearly identical to its 2003 predecessor, the 2005 Final Rule failed to win over agency critics. Interested groups again challenged the rulemaking as arbitrary and capricious, and this Court once more agreed. See Owner–Operator Indep. Drivers Ass'n, Inc. v. FMCSA, 494 F.3d 188, 206 (D.C.Cir.2007) (OOIDA). But rather than vacate the contested provisions on broad grounds, we rested our holding on two technical shortcomings: the agency's failure to (1) timely disclose its methodology for determining its time-on-task multipliers, see id. at 201, and (2) “provide a reasoned explanation for a number of the methodology's critical elements,” id. at 203.

FMCSA responded in 2008 by reissuing the 2005 Final Rule with supplemental explanations and analysis. See Hours of Service of Drivers, 73 Fed.Reg. 69,567 (Nov. 19, 2008) (2008 Final Rule). Only after dissatisfied parties sought judicial review of the 2008 Final Rule did the agency agree to undertake a more responsive rulemaking. This most recent effort began with the 2010 notice of proposed rulemaking, Hours of Service of Drivers, 75 Fed.Reg. 82,170 (Dec. 29, 2010) (2010 NPRM), and ended in 2011 when FMCSA promulgated the final rule now before the Court. See Hours of Service of Drivers, 76 Fed.Reg. 81,134 (Dec. 27, 2011) (2011 Final Rule). For our purposes, the 2011 Final Rule resembles the earlier rules in all essential respects save for the addition of several new, safety-enhancing provisions:

• 30–Minute Off–Duty Break. The 2011 Final Rule bars truckers from driving past 8 hours unless they have had an off-duty break of at least 30 minutes.

• Once–Per–Week Restriction. To prevent drivers from abusing the 34–hour restart, the 2011 Final Rule allows truckers to invoke the provision only once every 168 hours (or 7 days).

• Two–Night Requirement. To ensure that drivers using the 34–hour restart have an opportunity to get two nights of rest, the 2011 Final Rule also mandates that the restart include two blocks of time from 1:00 a.m. to 5:00 a.m.

See 2011 Final Rule at 81,135–36.

Unsatisfied, industry associations and public interest groups promptly petitioned for review.

II. Jurisdiction & Standing

Because FMCSA is part of the Department of Transportation, the Hobbs Act circumscribes our jurisdiction to hear only those challenges brought by petitioners “aggrieved” by the agency's final order. 28 U.S.C. § 2344. “Proof of such aggrievement requires a showing of both Constitutional and prudential standing,” Burlington N. & Santa Fe Ry. Co. v. Surface Transp. Bd., 403 F.3d 771, 775 (D.C.Cir.2005), the burden of which falls squarely on petitioners, see Grocery Mfrs. Ass'n v. EPA, 693 F.3d 169, 174 (D.C.Cir.2012), as does the obligation to supplement the record to the extent necessary, see Sierra Club v. EPA, 292 F.3d 895, 900 (D.C.Cir.2002).

Prudential standing can be resolved without much fuss. As interested participants in the notice and comment process below, both sets of petitioners have more than adequately established their party status. It is equally clear that all fall within the zone of interest protected by the statute. See, e.g., Reytblatt v. NRC, 105 F.3d 715, 721–22 (D.C.Cir.1997). Tougher is the question whether all the parties have satisfied the Article III requirements—a concrete and particularized injury shown to be caused by the defendant and capable of judicial redress. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). FMCSA says both sets of petitioners have failed to provide the Court with sufficient evidence to support a claim of constitutional standing, but we think the agency only partially correct.

An association “has standing to sue under Article III of the Constitution of the United States only if (1) at least one of its members would have standing to sue in his own right; (2) the interest it seeks to protect is germane to its purpose; and (3) neither the claim asserted nor the relief requested requires the member to participate in the lawsuit.” Rainbow/PUSH Coal. v. FCC, 330 F.3d 539, 542 (D.C.Cir.2003); see also Hunt v. Wash. State Apple Adver. Comm'n, 432 U.S. 333, 343, 97 S.Ct. 2434, 53 L.Ed.2d 383 (1977). We believe ATA, the lone petitioner in Case No. 12–1092, has made such a showing. “[C]reated to promote and protect the interests of the trucking industry,” the national association has an obvious interest in challenging FMCSA rulemaking that directly—and negatively—impacts its motor carrier members. ATA Br. i.

The three public interest group petitioners in Case No. 12–1113, however, have abandoned any claim to associational standing. They have chosen instead to ride the jurisdictional coattails of individual co-petitioner Dana E. Logan, a truck driver “directly regulated by the challenged rule.” Public Citizen Br. 25.² As a consequence of this litigation strategy, standing for all petitioners in Case No. 12–1113 rises and falls with Logan's...