Federal Appellate Court Upholds DOT's
Motor Carrier Safety Fitness Rating Rules


The United States Court of Appeals for the District of Columbia Circuit has denied various challenges made by industry association groups to rules promulgated by the Federal Highway Administration ("FHWA") governing the assignment of safety fitness ratings to motor carriers.

In American Trucking Associations v. Department of Transportation,(1) a trucking association group and a trucker's group challenged various aspects of rules that were established to determine the safety fitness of owners and operators of commercial motor vehicles.(2) In dispute in the case were certain aspects of the FHWA's Safety Fitness Rating Methodology ("SFRM") regulations which are used by the agency to assign motor carriers safety ratings.(3) Such ratings are determined by an inspector after conducting a review of a carrier's safety documents.

In the case, petitioner American Trucking Associations ("ATA") contended that certain aspects of the FHWA's SFRM failed to comply with the statutory requirements, the sampling technique used by the FHWA to review carriers' safety was flawed, and its treatment of violations of its "hours-of-service" regulations were unduly harsh.(4) The court rejected ATA's contention that the underlying statute governing safety fitness requires the FHWA's to specify in its regulations the precise number of documents that inspectors are to review and how the sampling of documents to be reviewed are to be selected. Citing applicable precedent, the court found that the SFRM provides inspectors with detailed guidelines for determining a particular motor carrier's safety rating, notwithstanding ATA's arguments to the contrary.

The court also rejected ATA's assertion that the sampling technique employed by FHWA in reviewing a carrier's safety record "skewed" the results, or otherwise produces a unfitness rating that does not accurately depict the true safety fitness of carriers.(5) FHWA's avowed rational for focusing its limited resources on drivers and vehicles most likely to be in violation of the regulations, said the court, does not produce an unfitness rating that is "arbitrary" as contended by ATA.(6) As for ATA's contention that there should be a constraint on the number of documents that an inspector can review in determining the safety fitness of an individual carrier, the court held that it was "reasonable" for FHWA to conclude that such a restriction would produce a less accurate rating system.(7) The court also held that ATA had provided no basis for its contention that the discretion enjoyed by inspectors in reviewing carriers' safety records may lead to abuse.

Finally, the court rejected ATA's challenge to FHWA's policy of assigning heightened importance to hours-of-service violations when making safety determinations. The court agreed with ATA that controlling hours-of-service violations is not the only factor that can be assessed in controlling driver fatigue related accidents (apparently an area of particular concern to the agency). However, it found "no irrationality" in the FHWA's decision to use its hours-of-service regulations as the only method of addressing driver fatigue.(8)

The other petitioner in the case, Truckers United for Safety ("TUFS"), argued that the FHWA's motor carrier safety rules do not go far enough in certain areas to ensure motor carrier safety, and that more stringent safety requirements are necessary. The court rejected TUFS's petition. Specifically, it rejected TUFS's argument that the FHWA regulations are deficient to the extent that they fail to provide for any safety-related requirements in determining whether a carrier's application for new carrier authority should be approved. The court held that the regulations do provide for new carriers to meet certain proof of financial responsibility requirements,(9) which it deemed relevant to safety. It also found that new carriers, by definition, lack a record on which to base a safety determination, and also that TUFS had failed to propose any revised safety rating system for new carriers for the court to consider.(10)

The court also rejected TUFS's challenge to the FHWA regulations on the basis of their failure to provide the agency with a means of shutting down dangerous operations. The court held that the agency had no statutory authority to engage in such activities.(11) The court likewise rejected TUFS's challenge to all of the FHWA's existing safety ratings, finding the association had no standing to make such a challenge as it had suffered no actual "injury" that needed to be addressed by the court.(12)

Finally, the court in American Trucking Associations addressed certain claims of an intervener, the Petroleum Marketers Association of America, including its claim that the needs of certain "small haulers" were not adequately addressed by FHWA's motor carrier safety regulations. The court found that the agency had, in fact, taken into consideration the needs of such carriers in establishing its rules. This was accomplished in the rules by providing that a safety rating will not be reduced as the result of a single accident occurring over a one-year period.(13)


DOT Decision Preempting a New York Hazardous
Waste Regulation Upheld in Federal District Court

A decision by DOT that a State of New York environmental regulation prohibiting the consolidation and transfer of hazardous wastes is preempted by federal law has been upheld by the United States District Court for the Northern District of New York.

The case, New York v. Department of Transportation,(14) involved a New York Department of Environmental Conservation regulation 6 N.Y.C.R.R. § 372.3(a)(7)(i), which prohibited the exchange of hazardous waste materials between vehicles or containers.(15) The decision concerned a DOT determination that the New York regulation was preempted by the federal Hazardous Materials Transportation Act ("HMTA"), which does not prohibit the transfer of hazardous waste as addressed by the New York regulation. HMTA establishes uniform standards for the transportation of hazardous materials in interstate commerce, and also contains a provision preempting any conflicting state requirements, unless otherwise "authorized by another law of the United States."(16)

The court's decision in the case was made in response to summary judgement motions filed by New York and DOT. In the case, the court initially decided the standard of review to be applied in its review of the DOT's preemption decision. Rather than engaging in a de novo review of DOT's determination, as urged by New York, the court instead determined that its review of the agency's decision should be conducted under the guidelines as set forth in the familiar Supreme Court Chevron decision.(17) Under Chevron, a court first determines if Congress has spoken directly to the precise matter at issue, and if so, the court must give effect to that pronouncement. If ambiguous or silent, it will uphold an agency determination if it is based on a permissible construction of the statute and is sufficiently reasonable.

In reviewing the DOT determination, the court first proceeded to determine whether Congress had directly spoken as to whether the provisions of HMTA, covering the "packing, repacking, handling, labeling, marking, and placarding of hazardous material"(18) directly addressed the activities of the New York regulation at issue. Finding that Congress had not directly addressed the issue one way or the other, the court then proceeded to review the DOT's determination that the New York regulation was preempted by HMTA.(19)

The court held that DOT's determination, that the New York regulation was "covered" under the HMTA's preemption provision, was reasonable. The court specifically found that, either by examining specific words contained in the two statutes, or by reading the New York statute as a whole, without taking into consideration the meanings of individual words, the regulation "fall[s] into the 'covered subject' of 'repacking'," as specifically covered by HMTA.

Since the court found DOT's determination that New York's regulation is a subject "covered" by HMTA, was not arbitrary and capricious, it upheld DOT's decision, granted its motion for summary judgment, and dismissed the case.

Hot DOT Spots

  • DOT has adopted new rules revising its disadvantaged business enterprise ("DBE") program. The DBE program is designed to ensure that firms that compete for DOT-assisted contracts are not discriminated against. The revised rules, located at 49 C.F.R. § 23, are designed to address recent judicial precedent requiring "narrow tailoring" of affirmative action programs and recent legislative debate over the DBE program. After reviewing almost 900 comments on its draft rules, the final rules were adopted and are effective as of March 4, 1999. Brief highlights of the final rules are as follows:

-- Quota's and Set-Asides: The rules explicitly affirm that the national goal of having 10 percent of agency authorized funds go to DBEs is aspirational only, and that the DBE program prohibits the use of quotas or set-asides.

-- Economic Disadvantage: A personal net worth cap of $750,000 is imposed. Individuals with net worth above that level are ineligible for the DBE program.

-- Social Disadvantage: There is a presumption of social and economic disadvantage for certain minority groups. For other groups, social disadvantage will be determined on an individual basis; any individual owning a business may demonstrate that he/she is socially and economically disadvantaged.

-- Administration of Programs: The rule seeks to establish "one-stop shopping" certification programs within each state, with highway, transit, and airport agencies coordinating efforts to allow small businesses seeking DBE eligibility to be able to go through only one application process to become a certified DBE.

The new DBE program rules can be found on the DOT's worldwide web site at www.dot.gov.

  • In early March, DOT sponsored the first National Transportation Safety Conference designed to address the issue of transportation-related accidents. Participating in the conference were government and law enforcement officials, and industry, labor, and community leaders. Attendees included DOT Secretary Slater, U.S. Surgeon General Dr. David Satcher, some major city Mayors, and company CEOs. During the conference, attendees signed a memorandum of understanding promising to work as partners to provide safe work environments, to advocate for safety, to provide safety education, and to make safety a priority. For its part, DOT has agreed to assist participants in developing educational programs and materials on transportation safety. DOT also has announced that it is developing a Transportation Safety Action Plan for the nation that identifies specific strategies to reduce fatalities and injuries attributed to the national transportation system.
  • Albert C. Eisenberg has been appointed Deputy Assistant Secretary for Transportation Policy at DOT. Mr. Eisenberg previously served as the chairman of a local county board, and served on several Washington D.C. area planning commissions; worked at the American Institute of Architects and the National Parks and Conservation Association; and held several different staff positions on Capitol Hill.

1. Nos. 97-1668, 97-1680, 1999 U.S. WL 63852 (D.C. Cir. Feb. 12, 1999).

2. Under former 49 U.S.C. § 31144(a)(1), DOT is required to establish commercial motor vehicle safety fitness rules and procedures. The provision was reformulated as § 31144(b) by Public Law No. 105-78, § 4009(a), without substantive change.

3. The Specific Rules challenged are published at 62 Fed. Reg. 28,826 (1997).

4. American Trucking Assoc's, at *2-*10.

5. FHWA employs a "focused sampling" technique, which essentially results in inspectors reviewing the records and vehicles that are more likely to exhibit violations of safety rules, first, prior to examining other carrier records. Id. at *4-*5.

6. Id. at *6-*7.

7. Id. at *7.

8. Id. at *9-*10.

9. These financial responsibility requirements are set forth at 49 C.F.R. §365.109(a)(5).

10. American Trucking Assoc's, at *10.

11. Id. at *11.

12. Id.

13. Id.

14. No. 97-CV0784, 1999 WL 68598 (N.D.N.Y. Feb. 9, 1999).

15. Specifically, the regulation prohibited the "repackaging, mixing, or pumping [of hazardous waste] from one container or transport vehicle into another," unless a special permit was obtained by the transporter to operate as a treatment, storage, and disposal facility. Id. at 2.

16. The HMTA's preemption clause is found at 49 U.S.C. § 5125(a).

17. Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984).

18. See 49 U.S.C. § 5125(b)(1)(B).

19. New York v. DOT, at *6.

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