UNITED STATES COURT OF APPEALS FOR THE D.C. CIRCUIT


AMER TRK ASSN INC

v.

FHA


97-1668a

D.C. Cir. 1999


*	*	*


Williams, Circuit Judge: The petitioners in this case, the  American
Trucking Associations ("ATA") and Truckers Unit- ed for Safety
("TUFS"), challenge a rule promulgated by the  Federal Highway
Administration ("FHWA") amending the  regulations governing the
assignment of safety fitness ratings  to motor carriers. The ATA
claims that the amended regula- tions are contrary to law, are
arbitrary and capricious, and  were adopted without adequate
consideration of comments.  TUFS claims that the rule is invalid
because it fails to  discharge all the duties assigned the agency by
the governing  statute. Intervenor Petroleum Marketers Association of 
America raises still further complaints. We reject all these 
challenges. In addition, TUFS petitions us to vacate all  existing
safety fitness ratings. We find that TUFS lacks  standing to pursue


I. Background


The Motor Carrier Safety Act of 1984, as amended,  instructs the
Secretary of Transportation to prescribe regula- tions establishing a
procedure for determining the safety  fitness of owners and operators
of commercial motor vehicles.  See 49 U.S.C. s 31144(a)(1). The
Secretary has delegated  responsibility under this provision to the
FHWA, which exer- cised it in 1988 by adopting Safety Fitness
Procedures. See  53 Fed. Reg. 50,961 (1988).


In MST Express v. Department of Transportation, 108  F.3d 401 (D.C.
Cir. 1997), we held that the FHWA's 1988  action had failed to meet
the statute's requirement of estab- lishing its safety fitness rating
methodology by regulation.  Too much of its methodology was stated in
its Safety Fitness  Rating Methodology ("SFRM"), which was merely part
of its  Motor Carrier Training Manual and had not been adopted by 
notice-and-comment rulemaking. Id. at 406. The FHWA  responded by
issuing the rule challenged in this case, incorpo- rating a nearly
identical SFRM as an appendix to the Safety  Fitness Procedures. 62
Fed. Reg. 28,826, 28,826 (1997). The  alleged inadequacy of the SFRM
is the gravamen of most of  the petitioners' challenges.


The SFRM states a procedure for assigning a motor carri- er a safety
rating of "satisfactory," "conditional," or "unsatis- factory." The
rating depends on the carrier's ratings in six  specific "factors."


Five of these factor ratings are based on compliance with  safety
regulations in various areas--"general," "driver," "op- erational,"
"vehicle," and "hazardous materials." 49 CFR  App. B, 62 Fed. Reg.
60,035, 60,045 (1997). The ratings for  four of these--all but the
vehicle factor--are determined by a  "compliance review" of the
carrier's documents by FHWA  inspectors. Id. at 60,044-45. The rating
for the vehicle factor  is based at least in part on document review,
and can also be  affected by the results of roadside inspections. Id.
at 60,044.  The rating for the sixth factor, accidents, is determined
by  the carrier's accident rate. Id. Each factor is rated on the  same
scale as the overall rating (satisfactory, conditional, or 
unsatisfactory), and the six individual factor ratings are com-


bined into an overall safety rating according to the following 


MOTOR CARRIER SAFETY RATING TABLE




__________

n Factor ratings Overall safety rating 


__________

n Unsatisfactory Conditional 


__________

n 0 2 or less Satisfactory 0 more than 2 Conditional 1 2 or less
Conditional 1 more than 2 Unsatisfactory 2 or more0 or


__________

n 49 CFR 385 App. B.


We describe specific aspects of the SFRM in more detail in  the
discussion of each challenge.


II. ATA's Claims


A.Consistency with Statute


The ATA's first claim is that the rule fails to comply with  the
statute, principally for want of what ATA regards as  statutorily
mandated specificity. When the present rule was  issued, and when this
action was brought, the relevant statu- tory provision was contained
in 49 U.S.C. s 31144(a)(1), which  instructed the Secretary to
"prescribe regulations establish- ing a procedure to decide on the
safety fitness" of carriers,  including a "means of deciding whether
[carriers] meet the  safety fitness requirements under clause (A),"
which in turn  called for "specific initial and continuing" safety
require- ments. Id. Although none of the parties mentioned it in 
briefing or oral argument, 49 U.S.C. s 31144 was amended by  the
Transportation Equity Act for the 21st Century ("1998  Act"), s
4009(a), Pub. L. No. 105-178, 112 Stat. 107, 405-07.  The requirement
at stake here is reformulated as s 31144(b) 


and now demands that the Secretary "maintain by regulation  a
procedure for determining the safety fitness" of carriers,  which must
include "specific initial and continuing" safety  fitness requirements
and a "methodology the Secretary will  use to determine" whether
carriers are fit. Id. As we  develop below, the change has no effect
on the outcome.


In its specificity claim, ATA points out that the SFRM  decrees neither
how many documents a Safety Investigator is  to examine nor how the
investigator is to select the docu- ments he or she does review. ATA
reads MST Express as  saying that the statute requires that all
procedures used in  assessing safety fitness be "completely contained"
in the  regulations, so as to enable carriers to "predict," "ascertain
in  advance," or "determine from looking at the current regula-
tions," the safety ratings they will receive if inspected.


Whether the FHWA's regulations satisfy the statutory  directive is a
question of statutory interpretation, one the  FHWA has answered by
adopting the regulations in question.  Under the familiar test of
Chevron U.S.A. Inc. v. NRDC, 467  U.S. 837 (1984), assuming Congress
has not "directly spoken  to the precise question at issue," id. at
842-43, we defer to the  agency's interpretation if it is "based on a
permissible con- struction of the statute," id. at 843. The Chevron
test applies  to issues of how specifically an agency must frame its
regula- tions. New Mexico v. EPA, 114 F.3d 290, 293 (D.C. Cir. 


Here neither the 1984 Act's term, "means of deciding," nor  that of the
1998 Act, "methodology," could possibly be said to  speak directly to
the necessary degree of specificity (at least  in any sense adequate
to condemn the present regulations).  Nor does the statutory mandate
that requirements be "specif- ic" illuminate the degree of specificity
required. Thus, we  turn to the question of whether it is reasonable
to call the  procedures a "means of deciding" whether carriers meet 
"specific" safety fitness requirements (1984 Act) or a "meth- odology
for determining the safety fitness" of carriers (1998  Act), again
with reference to "specific" requirements. In a 


series of cases we have explicitly accorded agencies very  broad
deference in selecting the level of generality at which  they will
articulate rules. See New Mexico v. EPA, 114 F.3d  at 294;
Metropolitan Washington Airports Authority Profes- sional Fire
Fighters Ass'n v. United States, 959 F.2d 297, 300  (D.C. Cir. 1992);
NRDC v. EPA, 907 F.2d 1146, 1165 n.16  (D.C. Cir. 1990).


In fact the SFRM is highly specific, as we noted in MST  Express.
There, contrasting it with the far more limited  treatment of the
method for assigning ratings in the Safety  Fitness Procedures, we
said that the SFRM "provides  FHWA inspectors with detailed guidelines
for deriving a  motor carrier's safety rating." 108 F.3d at 403. It
enumer- ates the specific safety regulations that are considered in a 
compliance review, divides them into "acute" and "critical" 
categories,1 notifies the carrier of the types of records that  are
reviewed for compliance, and explains exactly how detect- ed
violations of acute and critical regulations are combined  into an


Yet ATA is certainly correct in claiming that the SFRM  fails to
specify how many documents are examined for compli- ance or how the
documents that are reviewed are selected.  But that gap hardly compels
a finding that it fails to meet the  specificity requirement of the
statute as construed in MST  Express. Indeed, that case implied that
the SFRM did  satisfy the statutory mandate, observing that "it is not
appar- ent from the regulations--as opposed to the SFRM--under  what
circumstances a carrier should expect to receive a  conditional or an
unsatisfactory rating." 108 F.3d at 406. At  the time of this accolade
the SFRM did not contain the  prescription of sampling procedures that
ATA now claims is  indispensable. In fact, the SFRM's specificity has
not in any  way been degraded since MST Express.




__________

n 1 We discuss the grouping of the safety regulations into "acute"  and
"critical" categories in more detail at II.B., infra. The calcula-
tion of safety ratings for individual factor areas is covered at
II.C.,  infra.


The ATA cites MST Express's statement that "[a] motor  carrier or
operator looking at the current regulations cannot  determine ... what
safety fitness rating it will receive." Id.  But the regulations
condemned in MST Express gave no  guidance at all as to when
inspectors would give a poor safety  rating, providing only that a
satisfactory rating would be  awarded if a carrier had "adequate"
safety management  controls. Id. at 403. "Adequate" was defined in
turn as  "appropriate for the size and type of operation of the
particu- lar motor carrier." Id. Thus the case can hardly be read to 
support the ATA's theory that it required specificity to the  point of
laying out a totally deterministic process. A better  reading is that
it merely reflects a rule, suggested in New  Mexico v. EPA, that when
a regulation intended to apply a  standard "contribute[s] no extra
specificity or clarity" to the  standard it implements, the agency has
failed "[to do] the  intended job." 114 F.3d at 293.


As a practical matter, ATA points to no way in which the  overall
purpose of the Act--promoting motor carrier safety,  subject of course
to protecting carriers' rights--calls for a  promulgation of every
detail of the sampling process by  regulation. It is easy to imagine
an affirmative reason for  the agency's decision not to subject the
sampling procedure to  notice and comment rulemaking--the desire to be
able to  vary these technical elements of the process without
excessive  delay as experience accrues.


Although the FHWA did not defend the decision not to  incorporate
sampling procedures into the regulations on those  grounds in the
rulemaking proceedings, neither the ATA nor  TUFS argued that it must
place the sampling procedures  there. The ATA did "urge FHWA to
include random record  sampling as a component of the final rule
establishing a new  safety rating methodology." But ATA was arguing
that  FHWA should use random sampling instead of the "focused 
sampling" technique the agency ultimately adopted, not that  the
statute required the selected technique to be described in  a
regulation rather than in the Field Operations Training  Manual, where
it in fact appeared. Since the petitioners did  not say why the agency


method into the regulation, we cannot fault the agency for  failing to
explain its decision. "[A] zero argument deserves a  zero response."
ParkView Medical Assocs. v. Shalala, 158  F.3d 146, 149 (D.C. Cir.
1998).


In New Mexico v. EPA, in rejecting a demand for greater  detail, we
said that "[e]verything else being equal, the better  a petitioner can
demonstrate the feasibility of greater speci- ficity the more
convincing its attack on agency vagueness,"  and that "where the
agency itself has adopted highly specific  internal guidelines
governing the same subject, it cannot very  plausibly deny
feasibility." 114 F.3d at 294 (emphasis omit- ted). There we cited MST
Express, where, of course, the  detail in the SFRM showed that the
agency could handily  achieve far greater specificity than the Safety
Fitness Proce- dures contained. Here, as the FHWA's manual does
contain  procedures almost as detailed as those the ATA would re-
quire, see Federal Highway Administration, Field Operations  Training
Manual, ch. 3 (1997), naturally the FHWA's exclu- sion of the sampling
procedures from the notice-and-comment  regulations cannot be grounded
in infeasibility. But it need  not be. The agency's broad discretion
and the reasonable- ness of its choice are enough.


B.Failure to Require a Statistically Significant Sample


The ATA's second claim is that the FHWA arbitrarily  failed to require
random selection of a statistically significant  sample of records for
review. Instead, the FHWA chose to  use a "focused sampling"
technique, set forth in its publicly  available Field Operations
Training Manual. The Manual  instructs investigators to "[i]dentify
and list drivers and vehi- cles that have been involved in accidents
and drivers and  vehicles found in violation during roadside
inspections. These  drivers and vehicles will be used to focus the
review...."  Federal Highway Administration, Field Operations Training
 Manual, ch. 3, at 4. Investigators are also to focus on  drivers
cited for hours-of-service violations when determining  the level of
compliance with those regulations. Id. at 10. It  is undisputed that
the records and vehicles examined first  under the agency's "focused


suspect--that is, more likely to exhibit violations than ran- domly
selected records and vehicles. It follows that the  agency will find a
higher violation rate using focused sam- pling than it would if it
used the random method petitioners  favor.


According to the ATA, compliance reviews under the rule  do not produce
a "representative picture of a carrier's safety  fitness." Because
random sampling is not required, the ATA  argues, a "skewed sample"
may produce a "skewed under- standing of a carrier's safety management
controls." In the  ATA view the FHWA therefore fails to achieve its
avowed  purpose, the creation of "a reasonable approach for assigning 
a safety rating which best describes the current safety fitness 
posture of a motor carrier as required by the safety fitness 
regulations." 62 Fed. Reg. 60,035, 60,045 (1997).


ATA appears to assume that any rational system must  estimate the
proportion of violations to be found in the total  population of a
carrier's documents. We agree, of course,  that if everything else
were equal, information about this  proportion would be useful. But
other measures are also  useful, and the agency may--if it has some
reason--rationally  prefer them.


The data yielded by the FHWA method have value, certain- ly for ranking
carriers. It is true that a 15% violation rate in  a sample composed
partly or wholly of suspect documents  does not support the inference
that the violation rate for the  entire document population is 15%.
But the fact that the  suspect-document population rate is not equal
to the overall  violation rate and does not mean the two rates are not
 correlated. GDP and personal consumption are correlated,  though
hardly equal. It seems reasonable to believe that  carriers with
higher observed violation rates under FHWA's  system--drawing a sample
of suspect documents first, with  (for many factors) minimum sample
numbers based on size of  carrier--will generally have higher overall
violation rates.


It is true that some carriers will have a higher proportion  of suspect
documents than others. But this does not destroy  the value of FHWA's
method. Consider two carriers of equal 


size, X and Y, where the sample from X has the higher  observed
violation rate. It is reasonable to infer that X's  overall violation
rate is higher regardless of which carrier has  more suspect
documents. To illustrate, we present two limit- ing cases: In Case 1,
X has so many suspect documents that  the X sample is entirely made up
such records, while Y has  no suspect documents. In this case, the
carrier with more  suspect documents (i.e., more roadside violations,
accidents,  etc.) unsurprisingly has a higher violation rate. In Case
2 we  assume the reverse--that X's sampled documents are all non-
suspect and Y's are all suspect. X's non-suspect documents  show a
higher violation rate than Y's suspect documents.  The result is a
little surprising, but all it means is that is that  in this
particular instance "suspectness" turned out not to  have been a good
proxy for violation rate for those two  carriers. The inference that X
was the worse violator is not  impaired.


Part of ATA's problem arises from a misreading of the  rules. The SFRM
says that "[w]hen a number of documents  are reviewed, the number of
violations required to meet a  pattern must be equal to 10 percent of
those examined." 62  Fed. Reg. 60,035, 60,044 (1997). ATA acts as if
this meant  that an overall 10 percent rate of noncompliance with a 
critical regulation is satisfactory. If that were true, it would 
follow that only a sampling procedure aimed at estimating the  total
rate of noncompliance would be rational. But the total  rate is not
the standard. Rather than setting the acceptable  noncompliance rate
at 10 percent of what all documents would  show, the SFRM sets it at
10 percent among examined  documents.


As we said, the agency must of course have some reason  for preferring
focused over random sampling. It did. In the  statement accompanying
promulgation of the final rule, the  FHWA defended its decision on the
grounds that "it is in the  best interest of public safety to continue
to focus its limited  resources on drivers and vehicles most likely to
be in violation  of the regulations." 62 Fed. Reg. 60,035, 60,039
(1997).


To understand the FHWA's rationale, it is helpful to under- stand the
distinction that the agency draws between "acute"  and "critical"
regulatory violations, a distinction unchallenged  here. The FHWA
defines acute regulations as those with  respect to which
"noncompliance is so severe as to require  immediate corrective
actions by a motor carrier regardless of  the overall safety posture
of the motor carrier." 49 CFR 385  App. B, II(b), 62 Fed. Reg. at
60,044. An example is 49 CFR  s 382.201, which (motorists may be
cheered to read) prohibits  knowing use of a driver with a blood
alcohol concentration of  0.04% or greater. 49 CFR 385 App. B, VII, 62
Fed. Reg. at  60,045. Each instance of an acute violation affects the
rele- vant factor rating. 49 CFR 385 App. B, II(g), 62 Fed. Reg. at 
60,044. Critical regulations are defined as those with respect  to
which "noncompliance relates to management and/or oper- ational
controls. These are indicative of breakdowns in a  carrier's
management controls." 49 CFR 385 App. B, II, 62  Fed. Reg. at 60,044.
An example is 49 CFR s 391.45(b),  which prohibits carriers from using
a driver who has not been  medically examined and certified during the
past 24 months.  49 CFR 385 App. B, VII, 62 Fed. Reg. at 60,046.
Violations  of critical regulations do not affect the safety rating in
the  relevant factor unless a "pattern of noncompliance" is ob-
served. There is no "pattern of noncompliance" unless 10%  of reviewed
documents, and at least two documents, show  violations. 49 CFR 385
App. B., II(g), 62 Fed. Reg. at 60,044  (1997). For acute violations
the reasonableness of choosing  focused over random sampling is clear.
Even a single acute  violation is serious enough to require "immediate
corrective  actions" and to affect the carrier's safety rating for the
 relevant factor.2 Thus it is eminently reasonable for the  FHWA to
adopt a method designed to miss as few such  violations as possible.
Examining the documents and vehicles  most likely to exhibit


The FHWA's rationale is less obvious for critical violations,  because
the agency has decided that a violation rate below 




__________

n 2 The procedure for calculating the safety ratings in each factor 
area is described in II.C., infra.


10% will not affect the safety rating. Why not require  random
sampling but impose a lower tolerance threshold?  The agency's answer
is that by using a technique likely to  detect as many violations as
possible, it can most effectively  discover areas requiring carriers'
attention so that carriers  can improve compliance and thus,
presumably, safety. Ran- dom sampling is less effective in
accomplishing this goal.  Although this reasoning does not emerge with
limpid clarity  from the relevant pages of the Federal Register, the
agency's  concern with husbanding resources for maximum safety effect 
and fostering full compliance is evident. See 62 Fed. Reg. at  60,039.
The ATA says that trying to locate problems is  justifiable only for
enforcement activities, not for assigning  safety ratings. But even in
choosing among safety rating  methods it makes sense for the agency to
look to the overall  goal of the statute, namely safety.


ATA can make no claim that the agency's methodology  makes the
resulting ratings unsuitable for their ultimate use.  They are made
"available to other federal agencies and to the  public," MST Express,
108 F.3d at 403, and, as we have said,  there is no showing that the
system produces skewed rank- ings. The direct legal effects have been
limited. In the past,  the only apparent legal consequence has been
that the recipi- ent of an "unsatisfactory" rating has been prohibited
from  "operating a commercial motor vehicle to transport ... [h]az-
ardous materials ... or [m]ore than 15 passengers." 49 CFR  s
385.13(a). The 1998 Act expands the effect, prohibiting any  unfit
owner or operator from operating motor vehicles in  interstate
commerce starting 60 days after the determination.  See Pub. L. No.
105-478, s 4009(a), 112 Stat. 107, 405-06  (1998) (to be codified at
49 U.S.C. s 31144(c)(1)). ATA has  not shown that the system will
produce an unfitness rating  that is arbitrary.


Part of ATA's objection on the sampling issue is that the  SFRM fails
to specify how far inspectors are to go in plowing  through a
carrier's documents. This flexibility produces the  possibility that
an inspector could manipulate the process.  Consider two carriers,
each with 1000 documents, which the  inspector attacks worst first,
with violations (in each case) 


showing in the first ten but not beyond. If the inspector  looks at 100
for carrier A and 106 for carrier B, that choice  alone (assuming
ordinary rounding practices) puts A but not  B on the wrong side of
the 10 percent divide.


To some extent the Manual addresses this problem by  setting minimum
levels of document review for specific types  of rules. See Federal
Highway Administration, Field Opera- tions Training Manual, ch. 3
(1997), at 5-6 (driver factor  regulations), 7-9 (operational factor
regulations), 9-10 (opera- tional factor regulations). For these
categories of records,  the minimum levels get at the most troubling
aspect of the  problem--the chance that an inspector who had it in for
a  particular carrier might condemn it to an unsatisfactory  rating by
stopping at a very low number of documents.


The Manual does not prescribe an upper limit on the  number of
documents to be reviewed. But it does guide the  inspector's decision
to expand the review, stating that addi- tional driver files are to be
reviewed "if the focused review  indicates substantial noncompliance,"
id. at 6, and that "in- creased attention may be required in certain
areas of a  carrier's operation that have revealed noncompliance." Id.
at  10. Since inspections that include extra documents focus on 
problem areas, they are unlikely to yield systematically better 
ratings for more extensively scrutinized operators. In the  terms of
the Carrier A/Carrier B hypothetical, the six addi- tional Carrier B
documents reviewed will be in problem areas,  so there is little
reason to believe they are less likely to show  violations than the
first 100. It was reasonable for FHWA to  suppose that a system that
imposes a rigid constraint on the  extent of the review would yield
less accurate ratings than  one that allows inspectors to probe areas
that they judge  suspicious.


Furthermore, forcing the agency to specify an upper limit  on the
extent of each review runs counter to the general  principle that
courts are ill-positioned to scrutinize an agen- cy's allocation of
its scarce resources. See, e.g., Heckler v.  Chaney, 470 U.S. 821, 827


The discretion that FHWA's scheme confers on inspectors  can be
abused, of course; intentionally and arbitrarily dis- criminatory
enforcement of a statute can be unconstitutional.  See Brandon v.
District of Columbia Board of Parole, 823  F.2d 644, 650 (D.C. Cir.
1987). But we can see no basis for  restricting agents' discretion on
the mere assumption--com- pletely unsupported by factual
allegations--that otherwise  inspectors will act in bad faith.


The ATA also makes a procedural claim here--that the 
notice-and-comment rule is defective because it specifies no  sampling
procedure at all; only the Manual does so. Insofar  as this is just a
repeat of its early claim, our prior discussion  is the answer. Beyond
that claim, ATA offers no supporting  reason. Here we review whether
the current system for  assigning ratings is arbitrary. If the FHWA
changes its  policy, actions under the new policy will be subject to
the  same standard of review.


C.Treatment of Hours-of-Service Violations


In its final challenge ATA claims that the FHWA's treat- ment of
violations of its "hours-of-service" regulations is  unduly harsh.


Outside the hours-of-service area, a carrier is assessed one  "point"
for each violation of an acute regulation and one for  each pattern of
violations of a critical regulation.3 49 CFR  385 App. B, II(g), 62
Fed. Reg. 60,035, 60,044 (1997). But for  the regulations governing
drivers' hours of service, 49 CFR  395, a pattern of noncompliance
(located within the "opera- tional" safety factor) costs the carrier
two points. Id. Each  "point" received with respect to a given factor
reduces the  rating in that factor by one level--from satisfactory to
condi- tional or from conditional to unsatisfactory. 49 CFR 385  App.
B, II.C(b), 62 Fed. Reg. at 60,045.


The ATA argues that this double assessment is irrational  because it
amounts to disparate treatment of "functionally  indistinguishable"
violations. Its best claim on this point is 




__________

n 3 The difference between "acute" and "critical" violations is 
explained at II.B., supra.


that the FHWA's explanation of the rule merely defends  enforcement of
the hours-of-service regulation--without ex- plaining why patterns of
violation of that rule deserve to be  treated more harshly than
violations of other critical regula- tions.


What the agency did say, however, was enough. We look  at the decision
to assign two points to patterns of violation of  the hours-of-service
regulations in the context of the agency's  overall process for
turning observed violations into a rating.  First, the types of
regulatory default that an inspection turns  up are of widely varying
seriousness. This variation is cap- tured to some extent by the
critical-acute distinction, but  there is also a good deal of
variation among the regulations  designated critical. For instance,
failing to maintain a medi- cal examiner's certificate in a driver's
qualification file is a  critical violation. 49 CFR 385 App. B, VII,
62 Fed. Reg. at  60,046 (1997). ATA's theory that all the critical
violations are  "functionally indistinguishable" would require us to
say that  failing to maintain a medical examiner's certificate is no 
different from exceeding the maximum allowable daily driving  time;
this is transparently not the case.


Even after rejecting the ATA's argument that all critical  violations
are functionally indistinguishable and must be  treated identically,
we must consider whether the decision to  assign two points for
hours-of-service violations is rational in  the context of the rating
system as a whole. The core aspects  of the context are the division
of regulations as between acute  and merely critical, the number of
regulations governing any  subject matter (such as hours of service),
and the distribution  of subject-matter regulations among the six
safety factors.


To illustrate the effect of context, we compare the regula- tions
governing fatigue with the regulations governing drug  and alcohol use
and testing. There are three substantive and  four recordkeeping
hours-of-service regulations that affect  each carrier. The
substantive ones are the daily driving rule,  49 CFR s 395.3(a)(1),
the daily on-duty rule, id. s 395.3(a)(2),  and the weekly on-duty
rule, id. s 395.3(b). The recordkeep- ing rules require that records
of duty status be created, id. 


s 395.8(a), forwarded to the carrier's home office, id.  s 395.8(i),
maintained there for six months along with sup- porting documents, id.
s 395.8(k)(1), and not falsified, id.  s 395.8(e). Even an
unsatisfactory rating for the "operation- al" factor (where all these
violations are located) would not in  itself lower a carrier's rating
below "conditional"; a carrier  can earn a conditional overall rating
even with an unsatisfac- tory rating on a single factor. See Motor
Carrier Safety  Rating Table, supra, at I.B. By contrast, drug and
alcohol  matters are the subject of no fewer than eight acute (and two
 critical) regulations in the "driver" factor, and three more  acute
regulations in the operational factor. Because two  separate factors
include drug-and-alcohol limits, failure to  comply with them can in
itself cause a carrier to receive an  unsatisfactory rating, while
failure to comply with hours-of- service regulations cannot.
Furthermore, there are more  than twice as many ways for failure to
comply with drug rules  to cause points to be assessed. Finally,
because most of  these drug and alcohol rules are designated acute,


Indeed, it would be plausible to argue that the SFRM  treats fatigue
too leniently. One study in the record indicates  that fatigue was the
"probable primary cause" of 41% of  studied accidents, while alcohol
impairment was involved in  only 4% of studied accidents; drug use was
apparently not a  factor in any of the studied accidents. See
Transportation  Research and Marketing, A Report on the Determination 
and Evaluation of the Role of Fatigue in Heavy Truck  Accidents 14


The FHWA's decision, then, was not just to assess two  points for
patterns of violation of the hours-of-service regula- tions, but also
to label none of those regulations acute and to  confine all of them
to the operational factor. In light of the  conditions the FHWA faced
in crafting this element of the  SFRM--the importance of controlling
fatigue, the fact that  the hours-of-service regulations are the only
ones dealing  with fatigue--we find no irrationality. And the agency
point- ed to each of these factors in justifying its decision. See 62 
Fed. Reg. 28,826, 28,829 (1997), 62 Fed. Reg. 60,035, 60,040 


(1997). Although the agency's defense may be of "less than  ideal
clarity," its "path may be reasonably discerned." Bow- man
Transportation, Inc. v. Arkansas-Best Freight System,  Inc., 419 U.S.
281, 286 (1974). Further, the agency's treat- ment of the issue
constituted an adequate response to critical  comments.


The ATA also argues that the FHWA should have consid- ered the weakness
of the relationship between hours-of- service violations and fatigue
in determining how much  weight to assign fatigue-related violations.
The record indi- cates that the FHWA did consider this factor and
recognized  that the present rules may not target hours of service
opti- mally. 62 Fed. Reg. 60,035, 60,040 (1997) ("[U]ntil the ongo-
ing rulemaking efforts to better regulate fatigue are conclud- ed, the
FHWA believes it is important to continue to assign  two points for a
pattern of violations of a Part 395 'critical'  regulation.") That
there are flaws in the current substantive  regulations does not,
given the evidence indicating that long  periods of driving cause
accidents, render the agency's treat- ment of the rules arbitrary and
capricious. See Patrick  Hamelin, Surveys about Professional Truck
Drivers: Profes- sional Characteristics of Truck Drivers: Situations,
Condi- tions and Duration of Work: Road Safety Effects 4 (1990) 
("over-risk of involvement in accidents beyond ten and more  hours of
work span"); NTSB, Safety Study: Fatigue, Alco- hol, Other Drugs, and
Medical Factors in Fatal-to-the-Driver  Heavy Truck Crashes 78 (1990)
("Research evidence indicates  that accident rates for trucks tend to
increase dramatically  the longer the driver continues beyond 8 hours


III. TUFS' Claims


A.Failure to Establish Safety Fitness Procedures for  New Carriers


TUFS argues that the FHWA has failed to promulgate  "specific initial
and continuing requirements" for motor carri- ers to prove safety
fitness as required by s 31144. Its focus,  in fact, is on the word
"initial"; no one could seriously argue 


that the FHWA has failed to promulgate "continuing" re- quirements for
carriers already in operation.


Although the Secretary does not raise the issue of standing  it is our
duty to do so where it is questionable. See, e.g.,  Catholic Social
Service v. Shalala, 12 F.3d 1123, 1125 n.2  (D.C. Cir. 1994). Here,
though it is surely questionable,  TUFS passes--if barely. TUFS
describes its members as  "various business entities whose operations
subject them to  federal regulation of interstate trucking," and
complains that  the FHWA's regulations "cannot be used to keep
dangerous  trucking companies out of interstate operation." We infer a
 claim that TUFS' members are particularly exposed to injury  from
unsafe truckers, although TUFS does not itself make  the connection.
Such a claim satisfies both the Constitutional  and prudential
standing requirements to bring a suit under a  highway safety statute,
as we held in International Brother- hood of Teamsters v. Pea, 17 F.3d
1478, 1482-83 (D.C. Cir.  1994).


The FHWA does have a safety-related requirement in  place to determine
whether a carrier's application for new  carrier authority should be
approved. Carriers are required  to provide proof of financial
responsibility. 49 CFR  s 365.109(a)(5) (1997). This is relevant to
safety; indeed,  operating a vehicle without "minimum levels of
financial  responsibility" is an acute violation of safety
regulations, and  failure to maintain proof of financial
responsibility is a critical  violation. See 62 Fed. Reg. 60,035,
60,045 (1997). It is a  modest safety fitness requirement, to say the
least, but of  course it is designed for new carriers, which by
definition lack  a record on which to base a safety determination. In
the  absence of any suggestion from TUFS as to what an adequate 
safety rating system for new carriers ought to entail, we are  in no
position to hold the FHWA's system insufficient.  TUFS directs none of
its fire to the issue of carriers that in  some degree represent
continuations of prior carriers, possi- bly with a bad record, so we


TUFS also claims that it is "unconscionable that the gov- ernment has
no legal means to shut down dangerous opera-


tions." While this may have been true, it was not because of  the
FHWA's regulations. The 1984 Act conferred no such  power on the
agency. The 1998 Act does confer it, see Pub.  L. No. 105-178, s
4009(a), 112 Stat. 107, 405-06, to be codi- fied at 49 U.S.C. s
31144(c)(1). As we said earlier, none of  the parties even mentioned
the 1998 Act, and in any event a  judgment aimed at pushing the FHWA
into action under the  1998 Act would be premature, as the Act is less
than eight  months old. In fact the Secretary appears to have been 
taking steps to implement his new powers. See 63 Fed. Reg.  49,630,
49,631 (1998) (request for comments on 1998 Act  implementation
encouraging "all interested parties to submit  written comments
through November 22 on any TEA-21  provision").


B.Invalidation of Existing Safety Ratings


TUFS also argues that this Court's decision in MST Ex- press requires
the invalidation of all existing safety ratings.  TUFS lacks standing
to raise the issue, however. It asserts  no basis for organizational
standing other than that its pur- poses include promotion of the "just
and efficient administra- tion of federal highway safety statutes," a
generalized interest  that is plainly inadequate. See Sierra Club v.
Morton, 405  U.S. 727, 739 (1972). And it does not claim that any of
its  members has suffered or is about to suffer injury because of  the
application of the old rating system. Since Article III  prohibits
federal courts from recognizing injuries that are  neither "actual"
nor "imminent," see Lujan v. Defenders of  Wildlife, 504 U.S. 555, 560
(1992), we have no authority to  reach the claim.


IV. Claims of Intervenor


Intervenor Petroleum Marketers Association of America  ("PMAA") argues
that the FHWA was arbitrary and capri- cious in deciding to use
"preventable or recordable" accidents.  In its view the agency can
only reasonably rely on accidents  where the driver has been found to
be at fault before a "fair  and impartial tribunal." We need not
address PMAA's argu- ments with respect to "preventable" accidents,


is no longer using that criterion to assign the initial safety 
rating. See 62 Fed. Reg. 28,826, 28,827 (1997). And we  think it
reasonable to use all accidents rather than just those  in which the
operator's driver is found at fault, in light of the  uncertainty as
to whether determinations of fault will be  made with respect to every
accident and the infirmities of the  fault-determination process.


The PMAA also describes itself as an organization of small  haulers
which are obligated to drive under adverse conditions  (e.g., to
deliver heating oil in winter), and argues that FHWA  did not take its
industry's character into account sufficiently  in formulating the
rule. But the FHWA explicitly took the  effect of the accident factor
on small carriers into account by  providing that a safety rating will
not be reduced because of a  single accident during each one-year
period. 49 CFR 385  App. B, II.B(d), 62 Fed. Reg. 60,035, 60,044
(1997). Nor do  we think the agency irrational in failing to make
special  accommodations for the oil delivery industry, in light of the
 relatively high acceptable accident rate and the existence of  an
appeals process in which carriers can make a case that  "the
recordable rate is not a fair means of evaluating its  accident
factor." 49 CFR 385, II.B(e), 62 Fed. Reg. at 60,044.


Conclusion


The petitions for review and the claims of the intervenor  are


So ordered.