Advoc Hwy Auto Sfty v. FMCSA

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 12, 2005 Decided December 2, 2005

No. 04-1233

ADVOCATES FOR HIGHWAY AND AUTO SAFETY,

PETITIONER

v.

FEDERAL MOTOR CARRIER SAFETY ADMINISTRATION,

RESPONDENT

Consolidated with

04-1236, 04-1418

On Petitions for Review of a Final Rule of the

United States Department of Transportation

Adina H. Rosenbaum and Robert A. Hirsch argued the cause

for petitioners. With them on the briefs were Brian Wolfman,

Paul D. Cullen, Sr., and Henry M. Jasny.

Edward Himmelfarb, Attorney, U.S. Department of Justice,

argued the cause for respondent. With him on the brief were

Peter D. Keisler, Assistant Attorney General, U.S. Department

of Justice, Robert S. Greenspan, Attorney, Jeffrey A. Rosen,

General Counsel, U.S. Department of Transportation, Brigham

A. McCown, Chief Counsel, and Cheryl J. Walker, Attorney.

2

Matthew M. Collette, Attorney, U.S. Department of Justice,

entered an appearance.

Before: TATEL and GARLAND, Circuit Judges, and

EDWARDS, Senior Circuit Judge.*

Opinion for the Court filed by Senior Circuit Judge

EDWARDS.

EDWARDS, Senior Circuit Judge: In 1991, Congress

instructed the Department of Transportation (“DOT”) to

determine whether drivers of commercial motor vehicles

(“CMVs”) – large trucks, passenger coaches, and school buses

– were receiving adequate training. Intermodal Surface

Transportation Efficiency Act, Pub. L. No. 102-240, 105 Stat.

1914, 2151 (1991) (“ISTEA” or the “Act”). In July 1995, after

extensive study, the Federal Highway Administration

(“FHWA”) published a three-volume study entitled, “Assessing

the Adequacy of Commercial Motor Vehicle Driver Training:

Final Report” (“Adequacy Report”). The Report concluded,

inter alia, that in order for any training program to be

“adequate,” it must include “on-street hours” of training. The

findings of the Adequacy Report were distilled into a Final

Regulatory Evaluation, which the agency transmitted to

Congress in February 1996. In April 1996, the agency published

a notice in which it solicited comments on the Adequacy Report

and the Final Regulatory Evaluation. And then nothing much

happened until November 2002, when parties petitioned this

court for a writ of mandamus ordering the Secretary of

Transportation to fulfill his ISTEA duties. In re Citizens for

Reliable & Safe Highways, No. 02-1363 (D.C. Cir. filed Nov.

26, 2002). Pursuant to a settlement agreement, the agency

*

Senior Circuit Judge Edwards was in regular active service

at the time of oral argument.

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agreed to publish a final rule implementing entry-level training

requirements no later than May 31, 2004.

On August 15, 2003, the Federal Motor Carrier Safety

Administration (“FMCSA”) published a notice of proposed

rulemaking to address the findings of the Adequacy Report.

After eliciting comments, FMCSA issued a final rule in May

2004. In the rule’s summary, FMCSA stated: “This action

responds to a study mandated by the Intermodal Surface

Transportation Efficiency Act of 1991 that found the private

sector training of entry-level drivers in the heavy truck,

motorcoach, and school bus industries was inadequate.”

Minimum Training Requirements for Entry-Level Commercial

Motor Vehicle Operators, 69 Fed. Reg. 29,384, 29,384 (May 21,

2004) (codified at 49 C.F.R. pt. 380). However, the rule

departed sharply from earlier agency recommendations. The

Adequacy Report determined that effective training for CMV

drivers required practical, on-the-road instruction on how to

operate a heavy vehicle. But FMCSA ignored this evidence and

opted for a program that focuses on areas unrelated to the

practical demands of operating a commercial motor vehicle.

Petitioners, who represent private citizens concerned with

highway safety and the industries affected by training

requirements, seek review of FMCSA’s final rule. The striking

incongruity between the methods of training previously shown

to be effective and the regimen adopted in the final rule,

petitioners argue, shows the agency’s action to be arbitrary and

capricious, in violation of the Administrative Procedure Act (the

“APA”). See 5 U.S.C. § 706(2)(A). We agree. Initial phases of

the regulatory process – which involved extensive study and

voluminous reports – identified deficiencies in training, and then

prescribed standards for judging training adequacy and

guidelines for inculcating the requisite operational skills.

FMCSA proclaims that its final rule “responds” to those earlier

findings. In truth, however, the final rule inexplicably ignores

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the Adequacy Report and the regulatory prescriptions contained

in that Report. The agency, without coherent explanation, has

promulgated a rule that is so at odds with the record assembled

by DOT that the action cannot stand. Accordingly, we grant the

petitions for review and remand the final rule to the agency for

further rulemaking consistent with this opinion.

I. BACKGROUND

A. Licensing and Training Drivers of Commercial Motor

Vehicles

This case concerns Congress’s ongoing efforts to ensure

that CMVs operate safely on the nation’s roads. For almost two

decades, the federal government has regulated the licensing of

CMV drivers. However, prior to the instant rulemaking, which

was instituted under ISTEA, the Government never purported to

impose any standards of driver training. Private parties had

developed training for neophyte drivers, but these efforts were

found to be insufficient to secure CMV safety.

In 1986, Congress passed the Commercial Motor Vehicle

Safety Act (“CMVSA”), 49 U.S.C. § 31301 et seq. (2000).

Under the CMVSA, the Secretary of Transportation was

required to promulgate regulations, to be administered by

individual states, setting minimum uniform standards governing

commercial drivers’ licenses (“CDLs”) for CMVs. Id. § 31308.

CMVs include cargo-carrying trucks within a specified weight

range, vehicles designed to transport at least 16 passengers, and

vehicles carrying certain hazardous materials. Id. § 31301(4).

Among other things, the statute mandates that CDL tests include

written and driving components. Id. § 31308(1).

The federal standards governing CDLs do not establish a

training regimen. In other words, “there are no prerequisite

Federal training requirements to obtain a CDL.” Minimum

Training Requirements for Entry-Level Commercial Motor

Vehicle Operators, 68 Fed. Reg. 48,863, 48,864 (proposed Aug.

5

15, 2003) (codified as amended at 49 C.F.R. pt. 380).

“Generally, drivers individually prepare for the CDL tests by

studying such areas as vehicle inspection procedures, off-road

vehicle maneuvers and operating a CMV in traffic.” Id.

While the CDL program does not mandate any CMV

training, some segments of the private sector, with guidance

from the federal government, have attempted to promote

effective training practices. In 1985, FHWA published a Model

Curriculum for Training Tractor-Trailer Drivers (“Model

Curriculum”). See Joint Appendix (“J.A.”) 37. The Model

Curriculum sets out a primer for instructing drivers of heavy

trucks. It focuses on five subject areas: basic operation, safe

operating practices, advanced operating practices, vehicle

maintenance, and nonvehicle activity. The Model Curriculum

prescribes a total of 320 hours of training, including 116 hours

of on-street training and 92.25 additional hours of driving-range

time. Id. at 44. The curriculum is primarily focused on

inculcating the skills and knowledge needed to enhance CMV

safety. For example, it prescribes 4.25 hours of training on the

techniques needed to avoid accidents while driving a truck in

reverse, and 22 hours on “advanced operating practices,” like

emergency maneuvers and skid control. Id. Still, the Model

Curriculum’s introduction emphasizes that its program sets out

only “minimum standards,” and that “[g]raduates of this

Curriculum cannot be considered fully trained, ‘ready to solo’

type drivers” unless “the Curriculum is considerably expanded

and enriched to provide both additional driving time and

material pertinent to the particular driving job that the student is

being trained for.” Id. at 42 (emphases in original). In 1995,

FHWA devised a similar curriculum for motor coach drivers.

Shortly after the Model Curriculum was published, groups

representing the motor carrier, truck-driver training, and

insurance industries formed the Professional Truck-Driver

Training Institute of America (“PTDIA” or the “Institute”). The

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Institute develops standards for training truck drivers, and it

certifies private training organizations that meet or exceed its

recommendations. PTDIA acknowledges that the Model

Curriculum “has been the ‘bible’ around which the PTDIA has

built its standards.” Professional Truck Driver Institute of

America, Comments to 49 C.F.R. pt. 383, at 3, reprinted in J.A.

68. To qualify as adequate under PTDIA standards, a truck

driver training program must provide 147.5 hours of instruction

including 44 hours of combined street and range time. Id. at 10,

J.A. 75.

Congress revisited the issue of CMV safety in 1991 when

it passed ISTEA. The rulemaking at issue here was commenced

pursuant to § 4007(a) of the Act, which provides:

(a) ENTRY LEVEL.–

(1) STUDY OF PRIVATE SECTOR. – Not later than

12 months after the date of the enactment of this Act,

the Secretary shall report to Congress on the

effectiveness of the efforts of the private sector to

ensure adequate training of entry level drivers of

commercial motor vehicles. In preparing the report,

the Secretary shall solicit the views of interested

persons.

(2) RULEMAKING PROCEEDING. – Not later than

12 months after the date of the enactment of this Act,

the Secretary shall commence a rulemaking proceeding

on the need to require training of all entry level drivers

of commercial motor vehicles. Such rulemaking

proceeding shall be completed not later than 24 months

after the date of such enactment.

(3) FOLLOWUP STUDY. – If the Secretary

determines under the proceeding conducted under

paragraph (2) that it is not in the public interest to issue

a rule that requires training for all entry level drivers,

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the Secretary shall submit to the Committee on

Commerce, Science, and Transportation of the Senate

and the Committee on Public Works and

Transportation of the House of Representatives not

later than 25 months after the date of the enactment of

this Act a report on the reasons for such decision,

together with the results of a cost benefit analysis

which the Secretary shall conduct with respect to such

proceeding.

105 Stat. at 2151-52.

B. Implementing ISTEA’s Dictates

1. Studying the Adequacy of Entry-Level Driver

Training

As a first step toward implementing § 4007(a) of ISTEA,

FMCSA’s predecessor, FHWA, issued an advanced notice of

proposed rulemaking. Training for All Entry Level Drivers of

Commercial Motor Vehicles (CMVs), 58 Fed. Reg. 33,874

(announced June 21, 1993) (to be codified at 49 C.F.R. pt. 383).

Noting the requirements of § 4007(a), FHWA solicited

comments on “the need to require training of all entry level

drivers of commercial motor vehicles (CMVs).” Id. The agency

further explained that it had contracted with an outside company

to produce a study examining the effectiveness of private sector

efforts to ensure adequate training of entry-level CMV drivers.

Id. at 33,875. Information gleaned from this study would form

the basis of the report to Congress mandated by ISTEA. To help

assemble the necessary material, the agency invited interested

parties to submit comments in response to a list of 13 questions

addressing the state of entry-level driver training. Id. at 33,875-

76.

In July 1995, after receiving over 100 responses to its

request for comments, FHWA published its three-volume

Adequacy Report, reprinted in J.A. 164. The Adequacy Report

8

began by surveying the training levels among drivers of heavy

trucks, motor coaches, and school buses. What it found was not

encouraging: “The conclusion of this study is that none of the

three private sectors are effectively providing adequate

training.” 1 Adequacy Report at 2, J.A. 173. Specifically, the

Adequacy Report found that “the heavy truck sector has the

smallest percentage of carriers offering adequate training (about

9 percent),” while only 18.5 percent of motor coach carriers

offered adequate training. Id. at 3-4, J.A. 174-75. The Report

concluded that “the present level of training adequacy is not

likely to improve due to the actions of the private sectors

themselves.” Id. at 7, J.A. 178. Given widespread training

failures across the industries it examined, the Report

recommended that “[i]f it is desirable to target fewer than all

three domains, the heavy truck domain should be considered

first priority, followed by motorcoaches.” Id. at 12, J.A. 183.

The Adequacy Report also made extensive findings on the

form that “adequate” entry-level training would take. “With

regard to heavy trucks,” the Report stated, “there is general

agreement in the industry that the model tractor-trailer driver

curriculum developed by the FHWA in the mid-1980s represents

an adequate content and approach for training truck drivers.” 3

Adequacy Report at 1-6, J.A. 209. “Therefore, the model

curriculum was the starting point in defining ‘adequate training’

for heavy truck drivers.” Id. Using the Model Curriculum as a

baseline for analysis, the Report noted that “[f]or a program to

be considered ‘adequate’ it must have on-street hours.” Id. at B-

5, J.A. 216.

The findings of the Adequacy Report were distilled into a

Final Regulatory Evaluation, which FHWA transmitted to

Congress in February 1996. The evaluation presented a cost-

benefit analysis of mandating entry-level driver training in

conformity with the Model Curriculum. On balance, the report

found, mandatory training would be beneficial. In its analysis,

9

the agency discounted the anomalous results produced by some

earlier studies of driver training, which had suggested that

training might increase accident rates. Such “counterintuitive”

findings, the agency determined, likely reflected the

pervasiveness of training programs that were “not adequate.”

Final Regulatory Evaluation: Entry-Level Driver Training at

15-17 (May 1995), reprinted in J.A. 241-43. Adjusting for

shoddy training programs made the benefits of good training

clear. “Based on the information presented from case studies,

a reduction in accidents is possible when training is well

designed. Accident reductions in the 10 to 15 percent range are

not unrealistic.” Id. at 20, J.A. 246. Economically, mandating

training along the lines described in the Model Curriculum

would yield substantial projected benefits. Against a cost of

between $4.19 billion and $4.51 billion over 10 years,

mandatory training was expected to generate a benefit in the

range of $5.4 billion to $15.27 billion during the same period.

Id. at 32-36, J.A. 258-62.

In April 1996, FHWA published a notice in which it

solicited comments on the Adequacy Report and the Final

Regulatory Evaluation. Training of Entry-Level Drivers of

Commercial Motor Vehicles, 61 Fed. Reg. 18,355 (Apr. 25,

1996) (notice of availability and request for comments). In

response, the agency received 48 additional comments. On

November 13, 1996, the agency held a public meeting on the

issue, which 26 individuals attended. After the meeting,

however, the agency’s activities pursuant to § 4007(a) came to

a halt. Nothing in the record explains this hiatus, but for six

years the agency initiated no further action. Indeed, it took

litigation by concerned private parties to nudge the agency out

of its slumber. In November 2002, those parties petitioned this

court for a writ of mandamus ordering the Secretary of

Transportation to fulfill his ISTEA duties. In re Citizens for

Reliable & Safe Highways, No. 02-1363 (D.C. Cir. filed Nov.

26, 2002). The matter was settled, and DOT agreed to publish

10

a final rule implementing entry-level training requirements no

later than May 31, 2004. Id.

2. FMCSA’s Final Rule

On August 15, 2003, FMCSA published a notice of

proposed rulemaking. After recounting the findings of the

Adequacy Report, FMCSA proposed a novel approach to the

problem of CMV training:

The agency is not requiring entry-level drivers to receive

training in areas that are covered in the CDL test. Such

training would be redundant. Instead, the required training

would address: (1) driver qualifications – medical, and

drug and alcohol testing, (2) driver hours of service

limitations, (3) driver wellness, and (4) whistle blower

protection.

Minimum Training Requirements, 68 Fed. Reg. at 48,868.

FMCSA estimated that training in this course of study would

entail about 10.5 hours for heavy truck and motor coach drivers.

Id. The proposed rule defined “entry-level” driver as one with

less than two years experience. Id. at 48,869. Licensed drivers

with one year of experience and a good driving record, however,

would be “grandfathered” past the new standard. Id. Finally,

the agency asserted that the proposed rule would be cost-

justified, but it offered no studies directly demonstrating the

rule’s economic benefit. Instead, FMCSA relied on inferences

from data related to more extensive training regimens.

Estimating a 10-year cost of $173.3 million, the agency claimed

that the proposed rule would have to prevent 315 truck-related

accidents in the first year and 285 crashes in subsequent years to

be cost-beneficial. Id. Since those numbers represented less

than one percent of truck-related accidents, and the training

program contemplated in the Adequacy Report was projected to

cut accident rates by up to 15 percent, the agency concluded that

11

the scaled-down reduction in accidents required to justify the

rule’s cost was attainable. Id.

After eliciting comments and holding a public meeting,

FMCSA announced its final rule in May 2004. In the rule’s

summary, the agency stated: “This action responds to a study

mandated by the Intermodal Surface Transportation Efficiency

Act of 1991 that found the private sector training of entry-level

drivers in the heavy truck, motorcoach, and school bus

industries was inadequate.” Minimum Training Requirements,

69 Fed. Reg. at 29,384. The final rule mandates action in the

four areas sketched in the notice of proposed rulemaking. 49

C.F.R. § 380.503. FMCSA did not set a minimum number of

hours, but suggested that 10 hours of training would be

appropriate for heavy truck drivers. 69 Fed. Reg. at 29,398.

The new rule defined “entry-level” to cover all drivers with less

than one year of experience driving with a CDL. 49 C.F.R. §

380.502(b).

In July 2004, petitioners, Advocates for Highway and Auto

Safety (“Advocates”) and the Owner-Operated Independent

Drivers Association, filed separate petitions for review of

FMCSA’s final rule. Petitioner United Motorcoach Association

(“UMA”) initially filed a petition for reconsideration with

FMCSA. It then filed a petition for review with this court,

which was dismissed as incurably premature since UMA had a

petition for reconsideration pending before the agency. After

notifying the agency that it was withdrawing its petition for

reconsideration, UMA filed a new petition for review with this

court in December 2004. All three petitions were consolidated

for review.

__________

In 1996, Congress passed an Act to “codify without

substantive change laws related to transportation and to improve

the United States Code.” Pub. L. No. 104-287, 110 Stat. 3388

12

(1996). Oddly, the Act seems to repeal § 4007(a). Id. § 7(8),

110 Stat. at 3400. Neither party mentions this Act, and it is hard

to know what to make of it. The Act was passed in October

1996, approximately eight months after the FHWA fulfilled its

mandate under § 4007(a)(1) by transmitting the Adequacy

Report to Congress. Congress appears to have believed it was

repealing only obsolete statutory language relating to the §

4007(a)(1) mandate. See H.R. REP. 104-573, 23, 1996

U.S.C.C.A.N. 3831, 3853 (“Section 7(8) repeals section 4007(a),

(c), (d), and (e) of the Intermodal Surface Transportation

Efficiency Act of 1991 . . . to eliminate obsolete provisions.”).

However, beyond the obsolete requirements of § 4007(a)(1), the

remainder of § 4007(a) unequivocally required the agency to

take further action, either by issuing a rule on driver training or,

if doing so would contravene the public interest, by submitting

a further report to Congress. Id. § 4007(a)(2)-(3). Neither party

suggests that Pub. L. No. 104-287 repealed the agency’s

obligations beyond those set forth in § 4007(a)(1). Indeed, both

sides argued the case as if the disputed statutory provisions

remain in full force and effect.

Whatever the status of § 4007(a) – and for purposes of this

opinion, we share the parties’ evident assumption that it remains

operative – it seems clear that this court has authority to

determine whether FMCSA’s final rule is arbitrary and

capricious under the APA, 5 U.S.C. §706(2)(A). FMCSA,

whose chief mission is to ensure highway safety, see 49 U.S.C.

§ 113(b) (2000), has the undisputed authority to promulgate

regulations responding to the findings of the Adequacy Report,

see id. § 113(f) (authorizing the Secretary of Transportation to

delegate authority to FMCSA). That is precisely what the

agency set out to do when it issued its Notice of Proposed

Rulemaking. See 68 Fed. Reg. at 48,863. And the parties do not

doubt that the agency’s final regulations are subject to judicial

review under the APA. In other words, for purposes of judicial

review, it does not matter whether FMCSA’s final rule is viewed

13

as an act taken pursuant to a specific duty under ISTEA or an act

taken pursuant to the authority granted under the agency’s

organic statute to address matters relating to highway safety. In

either case, FMCSA lawfully set out to promulgate regulations

that “respond” to the Adequacy Report. That is the basis upon

which we review the final rule to determine whether it survives

judicial scrutiny under the APA’s arbitrary-and-capricious

standard of review.

II. DISCUSSION

A. Standard of Review

A party challenging an agency’s rulemaking has the burden

of showing that the agency action was “arbitrary, capricious, an

abuse of discretion, or otherwise not in accordance with law.”

5 U.S.C. § 706(2)(A); see also City of Olmsted Falls v. FAA,

292 F.3d 261, 271 (D.C. Cir. 2002). An agency’s rule will be

found arbitrary and capricious “if the agency has relied on

factors which Congress has not intended it to consider, entirely

failed to consider an important aspect of the problem, offered an

explanation for its decision that runs counter to the evidence

before the agency, or is so implausible that it could not be

ascribed to difference in view or the product of agency

expertise.” Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto.

Ins. Co., 463 U.S. 29, 43 (1983).

B. FMCSA’s Entry-Level Driver Training Rule

The contested final rule begins with the assurance that it

“responds” to the Adequacy Report. See Minimum Training

Requirements, 69 Fed. Reg. at 29,384. Rather than “respond”

to the imperatives laid out in the Adequacy Report, however, the

final rule completely ignores the study’s emphasis on practical,

on-the-road training. The agency has adopted a rule with little

apparent connection to the inadequacies it purports to address.

For this reason, it fails review under § 706(2)(A).

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The record reveals numerous disjunctions between the final

rule and the findings of the Adequacy Report. Most glaringly,

the final rule inexplicably abandons the recommendations of the

Model Curriculum, despite the Adequacy Report’s heavy

reliance on those recommendations. The Report, in its

definition of adequate training, says that “the model curriculum

was the starting point in defining ‘adequate training’ for heavy

truck drivers,” and that it is largely applicable to the motor

coach industry. 3 Adequacy Report at 1-6, J.A. 209 (emphasis

added). FMCSA accepted this premise when it announced the

rule at issue here. Minimum Training Requirements, 68 Fed.

Reg. at 48,865 (“The agency believes that the Model Curriculum

represents the basis for training adequacy.”). Methodologically,

the Adequacy Report is entirely structured around the notion

that “adequate training” is defined in reference to the Model

Curriculum. But the final rule eschews the Model Curriculum

altogether. While the curriculum devotes some attention to the

topics covered by the final rule – for example, it prescribes five

hours of instruction on personal health and safety, and 5.75

hours of training on hours of service requirements – those

subjects are clearly secondary. Model Curriculum at 3,

reprinted in J.A. 44. Overwhelmingly, the curriculum addresses

topics directly related to driving skills, with a heavy emphasis

on skills and techniques necessary to safely operate a heavy

truck. None of the four areas covered by the final rule – driver

qualification, hours of service, driver wellness, and

whistleblower protection – have anything to do with operational

skills. Thus, they fly in the face of the Adequacy Report’s

recommendations.

A critical facet of the training program developed in the

Model Curriculum is on-street training. Indeed, the Adequacy

Report’s conclusions evince a presumption that any rule

instituting mandatory training would contain a substantial on-

street training component. Early on, the report says that “[f]or

a program to be considered ‘adequate’ it must have on-street

15

training.” 3 Adequacy Report at B-5, J.A. 216. The

unsurprising assumption underlying this statement is that the

best way to enhance safety among truck drivers is to ensure

practical but supervised experience handling heavy vehicles.

FMCSA’s final rule flouts this premise. Quite clearly, the four

topics it embraces do not touch on the operational skills of

driving a heavy truck. Nothing in the final rule, the

administrative record, or even the arguments presented in

litigation, suggests any reason to believe that the agency

changed course on the basis of evidence that the Adequacy

Report’s conclusions were faulty. The final rule’s purported

responsiveness to the Adequacy Report is therefore flatly

contradicted.

From a purely economic perspective, the agency’s disregard

of the Adequacy Report is baffling in light of the evidence in the

record. Instituting a training regimen along the lines sketched

in the Model Curriculum would, according to the agency’s own

calculations, produce benefits far in excess of costs. As noted

earlier, the program’s estimated 10-year cost of between $4.19

billion to $4.51 billion would yield a benefit ranging from $5.4

billion to $15.27 billion, depending on analytic assumptions.

See J.A. 258-62. The cost-benefit analysis in favor of the final

rule, however, lends no support to FMCSA’s position. In the

final rule, FMCSA says practically nothing about the projected

benefits. After running through the costs of mandating its

program, the agency suggests that, to be cost-beneficial, the rule

would need to prevent 201 crashes by the 32,400 entry-level

drivers affected by its provisions each year, representing

approximately a five percent reduction in crash rates. 69 Fed.

Reg. at 29,400. But the discussion cites no evidence that the

final rule would achieve that goal.

FMCSA’s Final Regulatory Evaluation, which was issued

to explain the new rule, underscores the frailty of FMCSA’s

analysis. In asserting that the new rule will generate a sufficient

16

benefit, FMCSA says: “A 4.7 percent reduction in crashes for

this group would appear plausible when measured against the

estimates of potential crash reduction measured in studies cited

in the [Notice of Proposed Rulemaking], the [Advanced Notice

of Proposed Rulemaking], and its accompanying regulatory

evaluation.” Regulatory Evaluation, Final Rule, Minimum

Training Requirements for Entry-Level Commercial Motor

Vehicle Operators at 21, reprinted in J.A. 444. This makes no

sense, because the studies to which this statement alludes are

those that measured the effect of more substantial training.

Thus, from the premise that a particular method of driver

training reduces crashes, the agency infers that anything it calls

“driver training” will reduce crashes. This is patently illogical.

It is also in direct tension with a specific finding of the

Adequacy Report. To explain the correlation found in some

studies between training and increased accident rates, the

Adequacy Report noted that “researchers have attributed this

tendency to the high variability in training quality, indicating

that poor training may give the new driver a false sense of

confidence in his/her abilities.” 1 Adequacy Report at 10, J.A.

181. The agency is wrong to assume that its unstudied training

program can piggyback on the demonstrated effectiveness of

practical, on-the-road training, and its blithe assurance that any

training is beneficial ignores the documented risks flowing from

subpar training programs.

FMCSA’s efforts to portray the final rule as consistent with

the Adequacy Report are fruitless. For example, at oral

argument, agency counsel suggested that the CDL program,

when coupled with the training requirements of the final rule,

will assure adequate driver training. Transcript of Proceedings

(“Tr.”) at 20, Advocates for Highway & Auto Safety v. Fed.

Motor Carrier Safety Admin., No. 04-1233 (D.C. Cir. argued

Sept. 12, 2005). In particular, counsel pointed to a section of the

Adequacy Report that states: “One possible outcome . . . could

17

be a hybrid program, i.e., a combination of the Training- and

Performance-based approaches that embodies the advantages of

each.” See 1 Adequacy Report at 13, J.A. 184. But FMCSA’s

invocation of that language misrepresents the discussion of

“hybrid programs” presented in the record. First, as already

noted, the term “training” in the Adequacy Report did not refer

to instruction in any set of subject areas imaginable. It had

specific content – namely, the kind of training outlined in the

Model Curriculum. And “performance-based approach”

certainly did not mean the existing CDL program. Rather, under

a performance-based approach, “drivers would be required to

pass more comprehensive knowledge and skill tests than are

presently required to obtain a Commercial Drivers License

(CDL).” Id. at 12, J.A. 183. The deficiencies of counsel’s

attempt to characterize the agency rule as a “hybrid program”

are readily apparent. Whatever role the CDL plays, it is

irrelevant to fulfilling the agency’s mandate under ISTEA. The

CDL requirements were well established by the time the

Adequacy Report concluded, unequivocally, that the private

sector was not effectively ensuring adequate training. The

notion that the final rule “responds” to the Adequacy Report

because it works in tandem with existing CDL standards is

unpersuasive.

FMCSA’s main strategy in defending the final rule is to

suggest that it is the first installment of an incremental program

that will fulfill its statutory obligations. This is entirely

unconvincing. Agencies surely may, in appropriate

circumstances, address problems incrementally. See Mobil Oil

Exploration & Producing Se., Inc. v. United Distribution Cos.,

498 U.S. 211, 230-31 (1991). However, in this case, FMCSA

has not shown that its action inaugurates a program designed to

tackle the concerns of the Adequacy Report. Rather, the final

rule points to some irrelevant initiatives which FMCSA self-

servingly characterizes as part of the agency’s “overall . . . effort

to improve its driver safety programs.” See Minimum Training

18

Requirements, 69 Fed. Reg. at 29,385. None of these programs

involves CMV training. The cited initiatives include: (1)

considering whether to modify the CDL test and whether the test

can be administered more cost-effectively; (2) identifying the

costs and benefits of a graduated license system, an inquiry

mandated by another section of ISTEA; (3) publishing an

interim final rule intended to heighten awareness of safety

regulations among motor carriers; and (4) administering a grant

program, in place since 1984, that provides financial assistance

to states in aid of “roadside inspections and other enforcement

activities designed to improve CMV safety.” Id. at 29,385-86.

These so-called “initiatives” do not reflect concrete regulatory

proposals to address the training problems identified in the

Adequacy Report. Indeed, the grant program predates ISTEA

and the Adequacy Report. Even on their own terms, two of the

initiatives are so speculative that they may come to nothing.

The agency has thus presented no reason to believe that these

initiatives, in concert with the new rule at issue here, will

address the deficiencies identified by the Adequacy Report.

In short, the record in this case shows that the agency

entirely failed to consider important aspects of the CMV training

problems before it; it largely ignored the evidence in the

Adequacy Report and abandoned the recommendations of the

Model Curriculum without reasonable explanation; and it

adopted a final rule whose terms have almost nothing to do with

an “adequate” CMV training program. FMCSA simply

disregarded the volumes of evidence that extensive, on-street

training enhances CMV safety. FMCSA’s action was thus

arbitrary and capricious under § 706(2)(A).

C. UMA’s Arguments

Petitioner UMA, in addition to endorsing the broad

criticisms of the final rule, argues that the agency acted

arbitrarily and capriciously in issuing a rule that applied

uniformly to the trucking and motor coach industries.

19

According to UMA, evidence that the motor coach industry has

a superior safety record, coupled with the motor coach

industry’s economic vulnerability, makes uniform treatment

unfair and irrational.

1. Waiver

FMCSA maintains that three of UMA's arguments – (1) that

the industry should be given an opportunity to work with the

agency to develop a better training program, (2) that insurance

carriers might require training of all drivers rather than just

entry-level drivers, and (3) that motor coach operators will be

exposed to liability – are waived because they were not raised

before the agency prior to the promulgation of the final rule.

UMA responds that, in light of Sims v. Apfel, 530 U.S. 103

(2000), there can be no “waiver.”

The agency correctly asserts that, as a general proposition,

the applicable case law emphasizes the need for parties seeking

judicial review of agency action to raise their issues before the

agency during the administrative process in order to preserve

those issues for judicial review. See, e.g., United States v. L.A.

Tucker Truck Lines, Inc., 344 U.S. 33, 37 (1952) (“Simple

fairness to those who are engaged in the tasks of administration,

and to litigants, requires as a general rule that courts should not

topple over administrative decisions unless the administrative

body not only has erred but has erred against objection made at

the time appropriate under its practice.”). However, Sims

indicates that this administrative-waiver doctrine does not

represent an ironclad rule. And, as a general matter, a party’s

presentation of issues during a rulemaking proceeding is not a

jurisdictional prerequisite to judicial review. See Avocados Plus

Inc. v. Veneman, 370 F.3d 1243, 1248 (D.C. Cir. 2004) (Courts

“presume exhaustion is non-jurisdictional unless ‘Congress

states in clear, unequivocal terms that the judiciary is barred

from hearing an action until the administrative agency has come

to a decision.’”) (quoting I.A.M. Nat’l Pension Fund Benefit

20

Plan C v. Stockton Tri Indus., 727 F.2d 1204, 1208 (D.C. Cir.

1984)) (emphasis added).

UMA relies on Sims to argue that it is inappropriate to apply

the general principles of issue waiver to administrative

rulemaking. Sims involved a Social Security claimant who was

denied disability benefits and then requested that the Social

Security Appeals Council (“Council”) review her claims. Sims,

530 U.S. at 105. After the Council denied review, Sims filed

suit in federal district court. She lost and, on appeal, the Fifth

Circuit held that two of the three arguments she pressed were

not reviewable on the merits, because she had not raised them

before the Council. Id. at 106. The Supreme Court reversed.

The Court began its analysis by noting “that requirements of

administrative issue exhaustion are largely creatures of statute,”

and that most of the Court’s cases refusing to consider

arguments initiated in litigation involved specific statutory

directives. Id. at 107-08. The Court noted that when neither

statute nor regulation required issue exhaustion, the Court has

occasionally imposed its own exhaustion hurdle. But in those

cases, the administrative context was critical: “The basis for a

judicially imposed issue-exhaustion requirement is an analogy

to the rule that appellate courts will not consider arguments not

raised before trial courts.” Id. at 108-09. The application of

issue exhaustion “depends on the degree to which the analogy

to normal adversarial litigation applies in a particular

administrative proceeding.” Id. at 109. Where the parties must

present and develop issues, the adjudicative model is apt and

issue exhaustion is appropriate. “Where, by contrast, an

administrative proceeding is not adversarial, . . . the reasons for

a court to require exhaustion are much weaker.” Id. at 110. A

four-justice plurality in Sims pointed out that “Social Security

proceedings are inquisitorial rather than adversarial,” that they

are highly informal, and that many claimants are not represented

by attorneys, thus making issue exhaustion inapposite. Id. at

110-12.

21

UMA contends that, in light of the Court’s holding in Sims,

FMCSA’s waiver argument is misplaced. Pet’r Reply Br. at 21

(“Rulemakings are classic examples of non-adversarial

administrative proceedings.”). This argument is not

unreasonable, because there appears to be no statute or

regulation compelling exhaustion in advance of judicial review,

and no argument has been made analogizing the agency’s

rulemaking to adjudication.

The difficulty that UMA faces, however, is that the case law

post-dating Sims gives little support to its position. For

example, in Appalachian Power Co. v. EPA, 251 F.3d 1026

(D.C. Cir. 2001), the court considered a host of challenges to an

Environmental Protection Agency (“EPA”) emissions

regulation. The court noted: “It is black-letter administrative

law that ‘[a]bsent special circumstances, a party must initially

present its comments to the agency during the rulemaking in

order for the court to consider the issue.’” Id. at 1036 (quoting

Tex. Tin Corp. v. EPA, 935 F.2d 1321, 1323 (D.C. Cir.1991))

(alterations in Appalachian Power). Similarly, in National

Wildlife Federation v. EPA, 286 F.3d 554 (D.C. Cir. 2002) (per

curiam), the court upheld a final rule regulating the bleaching

process used by paper mills. Among the many challenges

brought by the petitioner and rejected by the court was one that

“neither [petitioner] nor any other party before the agency raised

. . . during the administrative phase of the rulemaking process.”

Id. at 562. Citing the “well established” principle that “issues

not raised before the agency are waived and this Court will not

consider them,” the court refused to transgress the “near

absolute bar against raising new issues – factual or legal – on

appeal in the administrative context.” Id.

Neither Appalachian Power nor National Wildlife

Federation mentions Sims or seeks to determine whether the

rulemaking proceedings in those cases were analogous to

adversarial litigation. Sims was addressed, however, in National

22

Mining Ass’n v. Department of Labor, 292 F.3d 849 (D.C. Cir.

2002). There the court declined to consider a challenge to the

Department of Labor’s regulations under the Black Lung Benefit

Act, because the petitioner “failed to raise it during the notice-

and-comment period.” Id. at 874 (citing Nat’l Wildlife Fed’n,

286 F.3d at 562). The court found Sims “inapplicable, for it

addresses issue exhaustion, not issue waiver.” Id.

The distinction between “issue exhaustion” and “issue

waiver” is illusive, to say the least. Indeed, both terms appear

in the case law without apparent distinction, and they are

sometimes treated as if synonymous. Compare Nuclear Energy

Inst., Inc. v. EPA, 373 F.3d 1251, 1297 (D.C. Cir. 2004) (per

curiam) (“It is a hard and fast rule of administrative law, rooted

in simple fairness, that issues not raised before an agency are

waived and will not be considered by a court on review.”)

(citing L.A. Tucker Truck Lines, 344 U.S. at 37), with Petroleum

Commc’ns, Inc. v. FCC, 22 F.3d 1164, 1169 (D.C. Cir. 1994)

(discussing “the judicially-created requirement of exhaustion,

which holds that ‘courts should not topple over administrative

decisions unless the administrative body not only has erred but

has erred against objection made at the time appropriate under

its practice.’”) (quoting L.A. Tucker Truck Lines, 344 U.S. at

37). At least one of our sister circuits has explicitly recognized

the interchangeability of the two terms. See Coal. for Gov’t

Procurement v. Fed. Prison Indus., Inc., 365 F.3d 435, 461-62

(6th Cir. 2004) (“The administrative waiver doctrine, commonly

referred to as issue exhaustion, provides that it is inappropriate

for courts reviewing agency decisions to consider arguments not

raised before the administrative agency involved.”). Indeed, in

Sims itself, the Court stated the question presented in terms of

waiver. Sims, 530 U.S. at 105 (“The question is whether a

claimant pursuing judicial review has waived any issues that he

did not include in that request.”) (emphasis added); see also id.

at 115 (“No one claims that any established exception to this

23

ordinary ‘exhaustion’ or ‘waiver’ rule applies.”) (Breyer, J.,

dissenting).

The obvious point of the court’s judgment in National

Mining Ass’n is that a party will normally forfeit an opportunity

to challenge an agency rulemaking on a ground that was not first

presented to the agency for its initial consideration. There are

two reasons for this. First, the courts are not authorized to

second-guess agency rulemaking decisions; rather, the role of

the court is to determine whether the agency’s decision is

arbitrary and capricious for want of reasoned decisionmaking.

See State Farm, 463 U.S. at 43 (“The scope of review under the

‘arbitrary and capricious’ standard is narrow and a court is not

to substitute its judgment for that of the agency.”). Therefore,

it is unsurprising that parties rarely are allowed to seek “review”

of a substantive claim that has never even been presented to the

agency for its consideration. Second, as noted above, “[s]imple

fairness . . . requires as a general rule that courts should not

topple over administrative decisions unless the administrative

body . . . has erred against objection made at the time

appropriate under its practice.” L.A. Tucker Truck Lines, 344

U.S. at 37.

The bottom line here is that, no matter how we characterize

the result, UMA forfeited the opportunity to seek judicial review

of its claims that the industry should be given an opportunity to

work with the agency to develop a better training program, that

insurance carriers might require training of all drivers rather

than just entry-level drivers, and that motor coach operators will

be exposed to liability. Because UMA did not raise these

contentions during the rulemaking, and because they are not the

kind of clear points that an agency must consider sua sponte, see

State Farm, 463 U.S. at 51 (a rulemaking cannot be found

wanting simply because an agency fails to address every

alternative “‘thought conceivable by the mind of man’”)

(quoting Vermont Yankee Nuclear Power Corp. v. Natural Res.

24

Defense Council, Inc., 435 U.S. 519, 551 (1978)), the FMCSA

did not act arbitrarily or capriciously in failing to consider these

claims.

2. UMA’s Remaining Claims

Four arguments that UMA raised during the rulemaking

process and pursued on appeal remain before this court.

However, none of these arguments have merit. First, UMA

insists that its superior safety record warranted exempting the

industry from the final rule. Second, petitioner accuses the

agency of arbitrarily ignoring UMA’s pleas to integrate the four

areas of training identified by the final rule into the CDL

curriculum. Third, UMA contends that because the industry

lacked specialized training schools, it would suffer a

disproportionate cost in complying with the final rule. Fourth,

UMA objected to the agency aggregating the estimated crash

costs derived from all of the regulated industries. Since the

motor coach industry has a superior accident record and

contributes less to overall accident-related costs, UMA posits,

it was methodologically unsound to calculate the rule’s benefits

without disaggregating the costs associated with each regulated

sector.

None of these criticisms demonstrate a failure of

decisionmaking sufficient to discard the rule as arbitrary and

capricious. Because they are so frail, we devote only brief

attention to their specific shortcomings. First, it was not

unreasonable for FMCSA to decline the UMA’s request for

exemption. Though the Adequacy Report did find that the

motor coach industry had a better safety record than the heavy

truck industry, it still found the industry’s training record to be

inadequate. See Minimum Training Requirements, 69 Fed. Reg.

at 29,389. Next, rejecting UMA’s suggestion that the training

topics be integrated into the CDL requirement was a permissible

policy choice. The agency was free to determine that

employers, rather than state administrators, should bear the cost

25

of the final rule. See id. at 29,388. Third, UMA’s argument that

it cannot afford to implement the final rule because the industry

lacks a training infrastructure makes little sense, considering that

UMA endorses the broader proposition that adherence to the

Adequacy Report will appropriately involve more extensive

training requirements than are now imposed by the final rule.

Finally, UMA’s objection to the agency’s aggregation of crash

costs seems confused. The agency used the average cost of

crashes involving large trucks to estimate the average cost of all

crashes affected by its rule. Id. at 29,397. Citing the motor

coach industry’s lower frequency of accidents, UMA seeks to

discredit the agency’s focus on the costs per accident generated

by the trucking industry. Because UMA has not shown that

motor coach accidents are less costly when they occur, the

association has not demonstrated a methodological problem with

the cost-benefit analysis beyond the ones already identified in

this opinion.

D. The Appropriate Remedy

Petitioners’ opening brief oscillates with respect to the

remedy sought. Compare Pet’r Br. at 46 (requesting vacatur)

with id. at 60 (requesting remand). We are convinced that the

final rule should be remanded, but that it should remain in effect

while the agency crafts an adequate regulation. While

unsupported agency action normally warrants vacatur, Ill. Pub.

Telecomm. Ass’n v. FCC, 123 F.3d 693, 693 (D.C. Cir. 1997),

this court is not without discretion. “The decision whether to

vacate depends on the seriousness of the order’s deficiency . . .

and the disruptive consequences of an interim change that may

itself be changed.” Allied-Signal, Inc. v. U.S. Nuclear

Regulatory Comm’n, 988 F.2d 146, 150-51 (D.C. Cir. 1993)

(internal quotations omitted).

Advocates conceded at oral argument that the agency’s rule

will do no affirmative harm, arguing only that it does not go far

enough. See Tr. at 12-13. Accordingly, they raise no objection

26

to our leaving the current rule in place, requesting only that we

require the agency to engage in further rulemaking. UMA

maintained that allowing the final rule to remain in effect would

harm the motor coach industry, but its argument is

unconvincing. Stressing the industry’s supposed economic

vulnerability, UMA claimed that it cannot afford to implement

the final rule. Id. at 14. But as noted earlier, this argument is

hard to credit when UMA has been litigating in favor of a far

more extensive – and presumably costlier – training regimen.

UMA recognizes this tension, and insists that if the industry

must bear the cost, it needs “a return on investment” that only

serious training can provide. Id. Like Advocates, UMA

advances no argument that this rule will have a detrimental

effect on safety. That leaves only its self-contradictory

argument about costs, which is not enough to convince us to

vacate a rule that, while plainly inadequate, may do some good,

if it does anything at all.

III. CONCLUSION

The petitions for review are granted as indicated above, and

the case is remanded to the agency for further consideration

consistent with this opinion.