Darrell Andrews Trucking v. F.M.C.S.A., 01-1118.

Decision Date26 July 2002
Docket NumberNo. 01-1118.,01-1118.
Citation296 F.3d 1120
CourtU.S. Court of Appeals — District of Columbia Circuit

Henry E. Seaton, III argued the cause for petitioner. With him on the briefs were James E. Scapellato and John T. Husk.

Robert Digges, Jr. and Erika Z. Jones were on the brief for amicus curiae American Trucking Associations, Inc. in support of petitioner.

H. Thomas Byron, III, Attorney, U.S. Department of Justice, argued the cause for respondent. On the brief were Robert S. Greenspan and August E. Flentje, Attorneys. Edward R. Cohen, Attorney, entered an appearance.

Before: GINSBURG, Chief Judge, ROGERS and GARLAND, Circuit Judges.

Opinion for the Court filed by Circuit Judge GARLAND.

GARLAND, Circuit Judge:

Darrell Andrews Trucking, Inc., a commercial motor carrier, petitions for review of an order of the Federal Motor Carrier Safety Administration (FMCSA) assigning Andrews a "conditional" safety rating. The agency gave Andrews that rating because it violated a regulation requiring carriers to maintain all documents that support its drivers' records of duty status. The FMCSA found that Andrews removed its drivers' toll receipts from driver-specific files, where they could be used to verify the number of hours a driver was on the road, and commingled them with the receipts of all other drivers so that the tolls could not be used for verification. Andrews challenges the FMCSA's decision on a number of grounds, including a claim that the agency improperly changed its original interpretation of the recordkeeping regulation. We reject that challenge and all of the others but one. We remand the case to the agency for consideration of the sole issue that it failed to address below.


Congress has directed the Secretary of Transportation to prescribe regulations establishing a procedure for determining the safety fitness of the owners and operators of commercial motor vehicles. 49 U.S.C. § 31144(b); see MST Express v. Department of Transp., 108 F.3d 401, 402 (D.C.Cir.1997). The Secretary has delegated that responsibility to the FMCSA. 49 C.F.R. § 1.73.1 Pursuant to Part 385 of its regulations, the FMCSA assigns motor carriers one of three possible safety ratings: "satisfactory," "conditional," or "unsatisfactory." 49 C.F.R. § 385.3; see id. § 385.7 (listing factors considered in determining safety ratings, including the frequency of accidents and the frequency and severity of regulatory violations); see generally MST Express, 108 F.3d at 402-03.2 The agency conducts compliance reviews, "on-site examination[s] of motor carrier operations," in order "to determine whether a motor carrier meets the safety fitness standard" and which rating it should be assigned. 49 C.F.R. § 385.3; see id. § 385.9.

To ensure that truck drivers are awake and alert on the road, Congress has also directed the Secretary of Transportation to prescribe the maximum number of hours they may operate their vehicles in a given time period. See 49 U.S.C. § 31502(b). To implement that directive, the FMCSA has promulgated regulations that fix maximum driving times, 49 C.F.R. § 395.3, and require each driver to keep a record of duty status (RODS)3 that records his or her driving times for each 24-hour period, id. § 395.8. In order to permit the FMCSA to ensure compliance with the maximum-hours limitations, the regulations further require each motor carrier to "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)(1).

On November 9, 2000, during an on-site compliance review, FMCSA investigators determined that Andrews had violated agency regulations. The investigators found maximum-hours violations as well as false RODS. Compliance Review, J.A. at 48-49, 55, 57-58. In addition, they cited Andrews for failing to properly maintain supporting documents for the RODS. Specifically, the investigators noted that, although Andrews "receives [an] envelope containing each driver's expenses (toll receipts, fuel receipts, CAT scale receipts,...)," it separates out the toll receipts and files them "all together" with those of the other drivers. J.A. at 51. The result, the investigators said, is that the "carrier is not able to cross reference toll receipts back to the driver's RODS." Id. Moreover, if the toll receipts had been maintained as received, the investigators believed that "more falsification would have been discovered." J.A. at 55. Based on Andrews' treatment of the toll receipts, the investigators cited the carrier for violating § 395.8(k)(1), the recordkeeping regulation. As a consequence of that violation, together with an unrelated citation for an excessively high accident rate, the compliance review assigned Andrews the lowest of the three possible safety ratings: "unsatisfactory." J.A. at 49.

Andrews sought administrative review before the FMCSA. The carrier conceded that it maintained the toll receipts in the ordinary course of its business. In re Darrell Andrews Trucking, Inc., No.2001-8686, slip op. at 8 (FMCSA Jan. 19, 2001). Andrews argued, however, that the receipts were not "supporting documents" within the meaning of § 395.8(k)(1), because it did not use them to verify the information in its drivers' RODS. It further contended that, even if the toll receipts were supporting documents, the regulation did not require that such documents be kept in a manner that permitted their correlation with the driver to whom they corresponded.

The FMCSA disagreed. First, it concluded that, under § 395.8(k)(1), "supporting documents" include documents that "can be used to verify information on the driver's records of duty status" — not only those that the carrier actually does use. Andrews Trucking, FMCSA slip op. at 910 (emphasis added) (citing Regulatory Guidance for the Federal Motor Carrier Safety Regulations, 62 Fed.Reg. 16,370, 16,425 (Apr. 4, 1997)). Second, the FMCSA thought it reasonable to construe the maintenance requirement as requiring carriers to maintain the documents in a usable condition. Id. at 10. As did the investigators, the agency noted that although each Andrews driver turns in a "trip envelope" that contains his or her toll and other receipts, thereafter "the toll receipts are removed and all filed together in one central location." Id. at 8. This "`salad shooter' approach," the FMCSA held, "does not comply with the spirit of the law and frustrates proper enforcement." Id. at 11 (quoting In re A.D. Transport Express, Inc., No. 00-05-296052, slip op. at 5 (FMCSA May 22, 2000), aff'd, A.D. Transport Express, Inc. v. United States, 290 F.3d 761 (6th Cir.2002)). In particular, it "frustrates an investigator[']s ability to connect the supporting document (toll receipt) and the RODS," and leaves the investigator "unable to use the toll receipt to check for hours-of service or falsification violations of the driver." Id. at 8. Finally, the agency concluded that prior compliance reviews had put Andrews "on notice that [its] method of retention of supporting documents (including toll receipts) does not conform to the regulatory requirements." Id. at 9.

Although the FMCSA upheld Andrews' § 395.8(k)(1) violation, it raised the carrier's overall safety rating to "conditional" because it found that one of the accidents on its record had been non-preventable. Id. at 11-13. Andrews now petitions for review of the determination that it violated § 395.8(k)(1). See 28 U.S.C. § 2344.


This court must uphold a decision of the FMCSA unless it is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A); El Conejo Americano of Texas, Inc. v. Department of Transp., 278 F.3d 17, 19-20 (D.C.Cir.2002). We accord "substantial deference to [an] agency's interpretation of its own regulations," Thomas Jefferson Univ. v. Shalala, 512 U.S. 504, 512, 114 S.Ct. 2381, 2386, 129 L.Ed.2d 405 (1994), and will affirm the FMCSA's interpretation of one of its regulations unless "it is plainly erroneous or inconsistent with the regulation itself." Corridor H Alternatives, Inc. v. Slater, 166 F.3d 368, 372 (D.C.Cir.1999) (internal quotation marks omitted); see Auer v. Robbins, 519 U.S. 452, 461, 117 S.Ct. 905, 911, 137 L.Ed.2d 79 (1997).

Andrews raises five main challenges to the FMCSA's decision. According to Andrews, the requirement that it maintain each driver's toll receipts, and that it refrain from combining them with the receipts of all other drivers: (i) constitutes a change in the original regulation, promulgated without the required notice and opportunity for comment; (ii) even if not a change, was applied to Andrews without fair notice; (iii) imposes increased and unapproved recordkeeping burdens, in violation of the Paperwork Reduction Act, 44 U.S.C. §§ 3501-3520; (iv) was applied to Andrews without adherence to proper adjudicatory procedures; and (v) was imposed without consideration of a substantial countervailing consideration. We consider Andrews' five challenges below.4


Andrews' first argument is that the interpretation of § 395.8(k)(1) upon which the FMCSA based its decision constitutes a substantial change in the agency's construction of that regulation, and that it was unlawful for the agency to make such a change without promulgating a new regulation pursuant to the notice and comment provisions of the Administrative Procedure Act (APA), 5 U.S.C. § 553(c). See Appalachian Power Co. v. EPA, 208 F.3d 1015, 1024 (D.C.Cir.2000) ("It is well-established that an agency may not escape the notice and comment requirements ... by labeling a major substantive legal addition to a rule a mere interpretation."); Paralyzed...

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