Opinion for the Court filed by Circuit Judge MacKINNON.
MacKINNON, Circuit Judge.
After six years of study, investigation, and hearings which the Secretary of Transportation initiated, in part, in response to a petition by the Professional Drivers Council, the Secretary decided not to amend the regulations governing the hours-of-service for over-the-road truck drivers. The Drivers petition for review of this refusal. We affirm the decision of the Secretary.
On September 3, 1981, the Bureau of Motor Carrier Safety (Bureau) terminated rulemaking proceedings designed to amend the regulations which govern the hours-of-service for drivers of commercial motor vehicles. The agency decided not to amend the existing regulations. On October 1, 1981, the Professional Drivers Council (Drivers) petitioned the Secretary of Transportation (Secretary)
The first hours-of-service regulations, enacted by the Interstate Commerce Commission
From the beginning, regulating a driver's hours-of-service has not been an exact science and the agency has relied heavily upon its expertise in developing a regulatory scheme. As the Commission acknowledged in 1938:
6 M.C.C. at 561. When reconsidering the applicability of the new rules to common and contract property carriers, the Commission stated:
11 M.C.C. at 210. Notwithstanding this lack of factual foundation, the Commission, relying upon public comment and its own expertise, promulgated hours-of-service rules.
In 1959, the Commission initiated rulemaking proceedings which were intended to amend Part 195 of the Motor Carrier Safety Regulations which governs the hours-of-service for drivers.
Seeking to insure the continuing vitality of the regulations, the Bureau of Motor Carrier Safety initiated research into the area of driver fatigue in the early 1970s. In 1972, the Bureau published the results of a year-long study of driver fatigue, A Study of the Relationships Among Fatigue, Hours of Service, and Safety of Operations of Truck and Bus Drivers ("Phase I Fatigue Study"). In response to this study the Drivers filed a rulemaking petition requesting that the agency commence proceedings to amend the existing hours-of-service rules. The agency declined to commence rulemaking, choosing to await the results of additional studies. In November, 1973, the Drivers again petitioned the agency to initiate rulemaking. The agency again responded that more information was needed and refused to commence rulemaking. The Drivers filed suit based upon the agency's denial. This action was dismissed without prejudice to the filing of a subsequent action if, within eighteen months the agency did not publish a Notice of Proposed Rulemaking. PROD, Inc. v. Brinegar, Civ. No. 2098-73 (D.D.C. Sept. 12, 1974). An Advance Notice of Proposed Rulemaking was published in February, 1976.
Based upon the response to the 1976 Advance Notice, the agency concluded that the hours-of-service regulations needed "extensive revision" and the agency drafted "a preliminary set of proposals" for amendment of the existing rules. [Plans I, II, and III]. The agency revealed these proposals in an Advance Notice of Proposed Rulemaking, and announced that public hearings on
In compliance with Executive Orders,
On September 3, 1981, the agency terminated the rulemaking without amending the existing rules. The notice terminating the proceedings stated:
46 Fed.Reg. 44198 (1981). Following this announcement, the Drivers petitioned the Secretary to reconsider the decision and to reinstitute rulemaking specifically designed to remedy three deficiencies which the Drivers identified in the existing rules. On November 20, 1981, the Drivers' petition was denied. This petition for review followed.
A. Standard of Review
As this case involves informal rulemaking, the proper standard for judicial review is contained in 5 U.S.C. § 706(2)(A)(D) (1976). This standard of review requires a court to set aside agency action which is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law." Id. § 706(2)(A). Camp v. Pitts, 411 U.S. 138, 140-42, 93 S.Ct. 1241, 1243-44, 36 L.Ed.2d 106 (1973); Action for Children's Television v. FCC, 564 F.2d 458, 478-79 (D.C.Cir.1977). Descriptions of the "arbitrary and capricious" standard emphasize that while such review is "searching and careful," it must also be circumspect. The reviewing court must be cautious not to substitute its judgment for that of the agency. The court's task is to discern whether the relevant factors were considered and whether the ultimate decision reflects reasoned decision-making.
We have previously reviewed an agency decision not to amend existing regulations. Natural Resources Defense Council v. SEC, 606 F.2d 1031 (1979); Action for Children's Television v. FCC, supra. The threshold consideration in exercising judicial review under these circumstances is to determine whether the action is in fact amenable to review. Cognizant of the factors considered in prior opinions which counsel against review of these discretionary agency decisions, we determine that the decisions challenged herein are reviewable.
Our review is, however, limited. The circumscribed scope of this review is dictated by both the nature of the administrative proceeding (informal rulemaking) and by the nature of the ultimate decision (not to promulgate rules). The record in an informal rulemaking proceeding is "a less
Natural Resources Defense Council, supra, 606 F.2d at 1053 (citations and footnotes omitted).
B. Termination of Rulemaking Proceedings
The agency declined to adopt any of the proposals contained in the 1978 Advance Notice and closed its rulemaking proceedings. In support of this decision, the agency cited the "absence of evidence of a direct relationship between hours of service and a significant reduction in accidents" and "the economic impact of the proposed options on motor carrier operations and the Nation's distribution system."
Action for Children's Television, supra, 564 F.2d at 479 (footnotes omitted).
Reviewing the studies that it had commissioned, the agency concluded that no consistent relationship between driver fatigue, hours of driving, and motor vehicle accidents could be discerned which would require changing the existing regulations. The agency was unable to conclude that safety would be enhanced by adopting any of the three proposals.
Petitioners also allege that the agency impermissibly allowed economic considerations to "dictate" its decision. Initially it should be noted that petitioners overstate their case. In reaching its decision the agency relied upon factors in addition to the economic ramifications of amending the regulations. Furthermore, the Drivers fail to reveal why the agency's consideration of economic impact was impermissible.
The Bureau's decision to terminate rulemaking proceedings without amending its existing rules, after ten years of study and consideration of the issues, was a rational decision. The agency relied upon relevant, permissible factors, including its expertise, and its conclusions are supported by facts in the record. Therefore, the agency's decision to terminate rulemaking without
C. Denial of Petition to Institute New Rulemaking Proceedings
Petitioners also challenge the Secretary's denial of their petition to recommence rulemaking proceedings confined to the three "loopholes" in the regulations.
In this instance the Secretary clearly stated his reasons for denying the petition. After fully reviewing the reasons for terminating the hours-of-service proceeding, the Secretary stated:
Jt. App. at 51.
The Secretary's refusal to recommence rulemaking proceedings came only approximately two and one-half months after the termination of six years of rulemaking proceedings addressing this very topic. The information acquired by the agency during these proceedings supports its decision not to initiate new rulemaking proceedings. The agency's assertion that it was unlikely that new information would be revealed in rulemaking proceedings is a reasonable conclusion.
The essence of petitioners' challenge is that the agency did not fairly assess the particular concerns cited by the Drivers, but rather denied the petition based on the conclusions reached vis-à-vis other proposed rules. It is well established that "[a]dministrative rulemaking does not ordinarily comprehend any rights in private parties to compel an agency to institute such proceedings or promulgate rules." Rhode Island Television Corp. v. FCC, 320 F.2d 762, 766 (D.C.Cir.1963).
This review focuses upon only two actions by the agency: (1) the termination of rulemaking proceedings without amending the rules; and (2) the denial of the Drivers' petition for recommencing rulemaking. In both instances, we find that the agency adequately considered the relevant factors and reached a reasoned decision. These agency actions are not "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law." The judgment of the Secretary is entitled to considerable deference and for the reasons set forth above we affirm his decision in both instances.
For clarity, all relevant agency actions will be attributed to the "Secretary," the statutorily designated authority.
This court has "scrutinized regulations immune from direct review by reviewing the denial of a subsequent rulemaking petition which challenged the regulation on demonstrable grounds of substantive invalidity." Natural Resources Defense Council v. Nuclear Reg. Comm'n, 666 F.2d 595, 602 (D.C.Cir.1981) (emphasis in original). Accord Gage v. United States Atomic Energy Comm'n, 479 F.2d 1214, 1222 & n. 27 (D.C.Cir.1973) (dicta). However, such "scrutiny" is limited to that permissible under the traditional "arbitrary and capricious" standard, and focuses not upon the regulatory scheme as a whole, but upon the more narrow issues as defined by the denial of the petition for rulemaking.
We review the Secretary's decisions at issue herein under this standard to determine whether, in light of all the information available, these decisions evidence reasoned decision-making within the Secretary's broad discretion. This review is not intended to examine these so-called "loopholes" in the regulatory scheme, except to the extent that we are satisfied that if in fact they do exist, they are not contrary to the statutory mandate. We will not venture into the realm of policy-making in the area of hours-of-service regulations as that is clearly beyond our expertise. Rather, this review focuses solely upon the propriety of the Secretary's decisions as tested by the traditional standard for review of agency decision-making.
This section of the original Motor Carriers Act was partially repealed. 92 Stat. 1466 (1978). Those portions authorizing hours-of-service regulations were not repealed. 49 U.S.C. § 304 (Supp. IV 1980). The Secretary of Transportation now exercises the regulatory authority in this area. See note 1 supra.
564 F.2d at 479 (footnotes omitted).
Application of this standard would also compel us to uphold the agency's decision in this case.
Id. (citations omitted) (emphasis added).
Although the Natural Resources court cited these circumstances as counseling against review altogether, in reviewing the agency actions herein we find that these same circumstances operate to narrow the scope of our review and reinforce our inclination to respect agency expertise in this area.