American Trucking Associations, Inc. v. Federal Highway Admin.

• Citation: 51 F.3d 405
• Decision Date: 05 April 1995
• Docket Number: No. 94-1209,94-1209
• Parties: Fed. Carr. Cas. P 83,969, 63 USLW 2636, 10 IER Cases 709 AMERICAN TRUCKING ASSOCIATIONS, INCORPORATED, Petitioner, v. FEDERAL HIGHWAY ADMINISTRATION; United States Department of Transportation; United States of America, Respondents.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 405

51 F.3d 405

Fed. Carr. Cas. P 83,969, 63 USLW 2636, 10

IER Cases 709

AMERICAN TRUCKING ASSOCIATIONS, INCORPORATED, Petitioner, v. FEDERAL HIGHWAY ADMINISTRATION; United States Department of

Transportation; United States of America, Respondents.

No. 94-1209.

United States Court of Appeals, Fourth Circuit.

Argued Sept. 28, 1994.

Decided April 5, 1995.

ARGUED: Erika Ziebarth Jones, Mayer, Brown & Platt, Washington, DC, for petitioner. John Crawford Hoyle, Civ. Div., U.S. Dept. of Justice, Washington, DC, for respondents. ON BRIEF: Laurie R. Rubenstein, Mayer, Brown & Platt, Washington, DC, Daniel R. Barney, Lynda S. Mounts, ATA Litigation Center, Alexandria, VA, for petitioner. Frank W. Hunger, Asst. Atty. Gen., Robert V. Zener, Appellate Litigation Counsel, Civ. Div., U.S. Dept. of Justice, Washington, DC, for respondents.

Before NIEMEYER and LUTTIG, Circuit Judges, and PHILLIPS, Senior Circuit Judge.

Vacated and remanded by published opinion. Senior Judge PHILLIPS wrote the majority opinion, in which Judge NIEMEYER joined. Judge LUTTIG wrote an opinion concurring in the judgment.

OPINION

PHILLIPS, Senior Circuit Judge:

The American Trucking Associations, Inc. ("ATA"), the national trade association of the trucking industry, petitions for review of a final rule issued by the Department of Transportation ("DOT") and the Federal Highway Administration ("FHWA") that mandates preemployment testing of commercial truck drivers for alcohol use. ATA argues that the rule is based on an erroneous interpretation of the governing statute and is therefore not a reasonable exercise of the agencies' interpretive discretion. We agree. Accordingly, we vacate the final rule and remand to the agencies for further rulemaking consistent with this opinion.

I.

The Omnibus Transportation Employee Testing Act of 1991 ("Act" or "1991 Act"), Pub.L. No. 102-143, Title V, 105 Stat. 952 (1991), directed the Secretary of Transportation to prescribe regulations for the testing of employees for drugs and alcohol in four sectors of the transportation industry. The portion of the Act here at issue directs DOT, "in the interest of commercial motor vehicle safety," to

establish a program which requires motor carriers to conduct preemployment, reasonable suspicion, random, and postaccident testing of the operators of commercial motor vehicles for use, in violation of law or Federal regulation, of alcohol or a controlled substance. The Secretary may also issue regulations, as the Secretary considers appropriate in the interest of safety, for the conduct of periodic recurring testing of such operators for such use in violation of law or Federal regulation.

Sec. 5(a)(1), 105 Stat. 959 (codified at 49 U.S.C.App. Sec. 2717(a)). Similar provisions apply to air carriers, railroads, and mass transit authorities as well. Sec. 3(a)(1), 105 Stat. 953; Sec. 4, 105 Stat. 957; Sec. 6(b)(1), 105 Stat. 962.

On December 15, 1992, FHWA and the other operating administrations within DOT ¹ issued Notices of Proposed Rulemaking ("NPRMs") to implement the Act's mandates. DOT itself issued a common preamble which it explicitly incorporated into each of its administrations' separate NPRMs. 57 Fed.Reg. 59,382 (1992). Because the administrations had previously promulgated drug testing rules, ² the NPRMs and the DOT preamble focused clearly on alcohol testing. Each NPRM proposed that employers would be required to administer pre-employment, reasonable suspicion, post-accident, and random testing for both drugs and alcohol. DOT chose not to require periodic recurring testing.

In its preamble, DOT reiterated views it had expressed three years earlier that pre-employment testing "is one of the least useful types of tests when dealing with alcohol." ³ It observed that, because off-duty alcohol use--in contrast to off-duty use of controlled substances--is generally legal, "[o]ften, a test result indicating alcohol use may only indicate bad judgment or bad timing (e.g., one notices an employment advertisement after having beer and a hamburger for lunch, immediately applies, and is tested.)" It also acknowledged that pre-employment testing is especially costly. Nonetheless, DOT tersely observed, "[t]he Act requires pre-employment testing." "To make such a test more meaningful," DOT proposed that "employer[s] would have the option of testing during the hiring process or before (preferably just before) the employee starts performing safety-sensitive functions." 57 Fed.Reg. 59,398.

DOT and its operating administrations received numerous comments critical of the proposal to require pre-employment alcohol testing. As DOT later observed, "[a] substantial number of commentators were concerned about the costs of pre-employment tests and considered them silly 'intelligence' tests and a waste of time." 59 Fed.Reg. 7321 (1994). One comment, submitted jointly by Southwest Airlines and several of its employee associations, directly challenged DOT's assertion that the statute required pre-employment alcohol testing. The comment emphasized that, "under its express terms, the Testing Act requires the [DOT operating administrations] to test for alcohol consumption only when such consumption violates a law or Federal regulation." It continued:

There is no law or Federal regulation, as far as Southwest is aware, which prohibits persons under the influence of alcohol from appearing at an airline to apply for a safety-sensitive job. This being so, under the express terms of the Testing Act, the FAA would appear to be under no legal mandate to prescribe pre-employment testing rules.

J.A. 114 (Joint Comments of Southwest Airlines et al.). ATA also responded to reiterate the ineffectiveness of pre-employment alcohol testing and to contest DOT's expressed belief that all of its administrations were required to prescribe pre-employment alcohol testing. For this latter argument, ATA relied not upon language from the 1991 Act, but rather upon FHWA's pre-existing statutory discretion (unique among DOT's operating administrations) to "waive, in whole or in part, application of any provision of this chapter or any regulation issued under this chapter with respect to [any] class of persons or class of commercial motor vehicles if the Secretary determines that such waiver is not contrary to the public interest." 49 U.S.C.App. Sec. 2711. ATA urged FHWA to exercise its discretion to waive the pre-employment testing provisions of the Act as to "drivers [of commercial motor vehicles] subject to the pre-employment alcohol testing." J.A. 131 (Comments of ATA on Alcohol Use and Testing).

On February 15, 1994, the agencies published a final rule containing both substantive prohibitions on the use of alcohol and testing requirements. The substantive provisions provide, inter alia, that no driver "shall perform safety-sensitive functions [i.e., e.g., waiting to be dispatched, loading, unloading, and driving] within four hours after using alcohol," 59 Fed.Reg. 7507 (to be codified at 49 C.F.R. Sec. 382.207), and that drivers may not have "any measured alcohol concentration" while on duty. 59 Fed.Reg. 7515 (amending 49 C.F.R. Sec. 392.5(a)(2)). The testing provisions retained the requirements for pre-employment testing, in addition to post-accident, reasonable suspicion, and random testing. In its common preamble, DOT largely repeated the remarks regarding pre-employment testing from its earlier NPRM. After noting the criticisms levelled at the rule, DOT stated simply: "The Act explicitly requires pre-employment testing for covered transportation industry employees, so we do not have the discretion to eliminate it from these programs." 59 Fed.Reg. 7321. Yet, DOT continued, in order "[t]o make such a test more meaningful," the final rule would permit employers to administer the "pre-employment" test "any time prior to the first time the employee performs safety-sensitive functions." Id. ⁴

Finally, FHWA rejected ATA's request that it waive application of the Act's pre-employment testing provision to motor carriers:

Even accepting, for the sake of argument, the comment's presumption that pre-employment testing is inherently useless, the FHWA does not believe it has the authority to waive all drivers from a major provision of the legislation. Eliminating all pre-employment tests would greatly diminish the number of required tests, and would, in effect, rewrite the statute.

59 Fed.Reg. 7487.

ATA filed a timely petition for review under the Hobbs Act, 28 U.S.C. Sec. 2342(5), which provides for direct review in the courts of appeals of final rules issued by the Interstate Commerce Commission, read in conjunction with 49 U.S.C.App. Sec. 1653(c), which specifies like review of orders issued pursuant to functions transferred from the ICC to DOT. We have previously acknowledged that exclusive jurisdiction lies in the courts of appeals to review DOT regulations establishing qualifications for motor carrier employees. See Clark v. Skinner, 937 F.2d 123, 126-27 (4th Cir.1991); see also Center for Auto Safety v. Skinner, 936 F.2d 1315 (D.C.Cir.1991) (per curiam); Owner-Operators Indep. Drivers Ass'n v. Skinner, 931 F.2d 582 (9th Cir.1991).

II.

ATA advances two arguments in support of its petition. First, it argues, the agencies erred as a matter of law in construing the Act unambiguously to require them to adopt the regulation that they did. Second, ATA avers, FHWA erred in concluding that it lacked discretion under 49 U.S.C.App. Sec. 2711 to waive the Act's pre-employment testing requirements as to the motor carrier industry. We agree with ATA's first contention and therefore vacate FHWA's final rule insofar as it mandates pre-employment testing for alcohol, and remand to the agencies for further rulemaking. In order to provide greater guidance to the agencies on remand, we also reach ATA's second contention. We uphold as a reasonable construction of the waiver provision FHWA's determination that it...