Professional Drivers Council v. Bureau of Motor Carrier Safety

• Decision Date: 27 April 1983
• Docket Number: No. 81-2283,81-2283
• Citation: 706 F.2d 1216
• Parties: 26 Wage & Hour Cas. (BN 97, 227 U.S.App.D.C. 312, 97 Lab.Cas. P 34,365 PROFESSIONAL DRIVERS COUNCIL, John Torbet, and David Gaibis, Petitioners, v. BUREAU OF MOTOR CARRIER SAFETY, and United States of America, Respondents.
• Court: U.S. Court of Appeals — District of Columbia Circuit

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706 F.2d 1216 26 Wage & Hour Cas. (BN 97, 227 U.S.App.D.C. 312,
97 Lab.Cas. P 34,365 PROFESSIONAL DRIVERS COUNCIL, John Torbet, and David Gaibis,
Petitioners,
v.
BUREAU OF MOTOR CARRIER SAFETY, and United States of
America, Respondents. No. 81-2283. United States Court of Appeals,
District of Columbia Circuit. Argued Sept. 28, 1982.
Decided April 26, 1983.
As Amended April 27, 1983.

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Petition for Review of an Order of the Bureau of Motor Carrier safety.

Arthur L. Fox, II, Washington, D.C., with whom Alan B. Morrison, Washington, D.C., was on the brief, for petitioners.

Robert C. Seldon, Asst. U.S. Atty., Washington, D.C., with whom Stanley S. Harris, U.S. Atty., Royce C. Lamberth and R. Craig Lawrence, Asst. U.S. Attys., and Kenneth N. Weinstein, Atty., Dept. of Transp., Washington, D.C., were on the brief, for respondents. Kenneth M. Raisler, Asst. U.S. Atty., Washington, D.C., also entered an appearance for respondents.

Before MacKINNON and GINSBURG, Circuit Judges, and McGOWAN, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge MacKINNON.

MacKINNON, Circuit Judge.

After six years of study, investigation, and hearings which the Secretary of Transportation initiated, in part, in response to a petition by the Professional Drivers Council, the Secretary decided not to amend the regulations governing the hours-of-service for over-the-road truck drivers. The Drivers petition for review of this refusal. We affirm the decision of the Secretary.

I. BACKGROUND

On September 3, 1981, the Bureau of Motor Carrier Safety (Bureau) terminated rulemaking proceedings designed to amend the regulations which govern the hours-of-service for drivers of commercial motor vehicles. The agency decided not to amend the existing regulations. On October 1, 1981, the Professional Drivers Council (Drivers) petitioned the Secretary of Transportation (Secretary) ¹ to reconsider the decision to terminate rulemaking and requested that rulemaking, addressing three specific "loopholes" in the existing scheme, be reinitiated. On November 20, 1981, the Secretary denied the Drivers' petition. The Drivers petitioned for review in this court seeking to have the Secretary's actions reversed as being "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law." The Drivers assert that the existing hours-of-service regulations are inadequate and that the agency has steadfastly refused to close "loopholes" in the regulations. ²

The first hours-of-service regulations, enacted by the Interstate Commerce Commission ³

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pursuant to the Motor Carrier Act of 1935, 49 Stat. 543, ⁴ became effective on October 1, 1938 and governed only common and contract passenger carriers. 6 M.C.C. 557 (1938). On March 1, 1939, following extensive hearings, the Commission extended its hours-of-service regulations, with some modifications, to all common and contract property carriers. 11 M.C.C. 203 (1939). With certain modifications, these rules were eventually extended to cover private carriers as well. 23 M.C.C. 1 (1940).

From the beginning, regulating a driver's hours-of-service has not been an exact science and the agency has relied heavily upon its expertise in developing a regulatory scheme. As the Commission acknowledged in 1938:

In reaching these determinations [establishing hours-of-service] the division recognized, as did all parties to the proceeding, that there was no statistical or other information which would enable it to say definitely how long a driver can safely work.

6 M.C.C. at 561. When reconsidering the applicability of the new rules to common and contract property carriers, the Commission stated:

We are again confronted with the same lack of definite factual evidence that confronted us when we rendered our prior decision. No evidence has been submitted

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at any hearing, and it is believed that none exists, which establishes that it is unsafe per se to permit a driver to drive or operate a vehicle for as long as 12 hours, unless such driver be off duty for 8 consecutive hours before he has driven 12 hours in the aggregate.

11 M.C.C. at 210. Notwithstanding this lack of factual foundation, the Commission, relying upon public comment and its own expertise, promulgated hours-of-service rules.

In 1959, the Commission initiated rulemaking proceedings which were intended to amend Part 195 of the Motor Carrier Safety Regulations which governs the hours-of-service for drivers. ⁵ Because of the substantial nature of the revisions proposed, extensive public hearings were held in three cities and, based upon this record, a hearing examiner submitted his recommendations for amending the regulations to the Commission. ⁶ After reviewing the examiner's recommendations, the Commission adopted the regulations as revised. The new regulations became effective July 16, 1962. ⁷ These regulations have remained essentially unchanged and are the regulations at issue in this case.

Seeking to insure the continuing vitality of the regulations, the Bureau of Motor Carrier Safety initiated research into the area of driver fatigue in the early 1970s. In 1972, the Bureau published the results of a year-long study of driver fatigue, A Study of the Relationships Among Fatigue, Hours of Service, and Safety of Operations of Truck and Bus Drivers ("Phase I Fatigue Study"). In response to this study the Drivers filed a rulemaking petition requesting that the agency commence proceedings to amend the existing hours-of-service rules. The agency declined to commence rulemaking, choosing to await the results of additional studies. In November, 1973, the Drivers again petitioned the agency to initiate rulemaking. The agency again responded that more information was needed and refused to commence rulemaking. The Drivers filed suit based upon the agency's denial. This action was dismissed without prejudice to the filing of a subsequent action if, within eighteen months the agency did not publish a Notice of Proposed Rulemaking. PROD, Inc. v. Brinegar, Civ. No. 2098-73 (D.D.C. Sept. 12, 1974). An Advance Notice of Proposed Rulemaking was published in February, 1976. ⁸ The stated purpose of the notice was to solicit views regarding revision of the hours-of-service rules. The Advance Notice stated that although the Agency did "not have conclusive information ... to support rule changes, [it was] in the process of conducting the final stages of ... research efforts to scientifically quantify the relationships between hours of service of interstate truck and bus drivers and driver fatigue." ⁹

Based upon the response to the 1976 Advance Notice, the agency concluded that the...