ADVOCATES FOR HIGHWAY AND AUTO SAFETY, PETITIONER v. FEDERAL MOTOR CARRIER SAFETY ADMINISTRATION, RESPONDENT
No. 04-1233
United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 12, 2005 Decided December 2, 2005
Consolidated with 04-1236, 04-1418
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.
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,
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
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
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),
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.
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
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,
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
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
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,
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
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
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.
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.
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,
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.
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
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
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
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
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
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
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.
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 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.
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
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
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. Def. 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
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
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.