Advocates for Highway & Auto Safety v. Federal Motor Carrier Safety AdministrationAdvocates for Highway & Auto Safety v. Federal Motor Carrier Safety Administration
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. Inter-modal Surface Transportation Efficiency Act, Pub.L. No. 102-240, 105 Stat.1914, 2151 (1991) (“ISTEA” or the “Act”). In July 1995, after extensive study, the Federal Highway Administration (“FHWA”) published a three-volume study entitled, “Assessing the Adequacy of Commercial Motor Vehicle Driver Training: Final Report” (“Adequacy Report”). The Report concluded, inter alia, that in order for any training program to be “adequate,” it must include “on-street hours” of training. The findings of the Adequacy Report were distilled into a Final Regulatory Evaluation, which the agency transmitted to Congress in February 1996. In April 1996, the agency published a notice in which it solicited comments on the
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,
Petitioners, who represent private citizens concerned with highway safety and the industries affected by training requirements, seek review of FMCSA’s final rule. The striking incongruity between the methods of training previously shown to be effective and the regimen adopted in the final rule, petitioners argue, shows the agency’s action to be arbitrary and capricious, in violation of the Administrative Procedure Act (the “APA”). See 5 U.S.C. § 706(2)(A). We agree. Initial phases of the regulatory process — which involved extensive study and voluminous reports— identified deficiencies in training, and then prescribed standards for judging training
i. Background
A. Licensing and Training Drivers of Commercial Motor Vehicles
This case concerns Congress’s ongoing efforts to ensure that CMVs operate safely on the nation’s roads. For almost two decades, the federal government has regulated the licensing of CMV drivers. However, prior to the instant rulemaking, which was instituted under ISTEA, the Government never purported to impose any standards of driver training. Private parties had developed training for neophyte drivers, but these efforts were found to be insufficient to secure CMV safety.
In 1986, Congress passed the Commercial Motor Vehicle Safety Act (“CMVSA”), 49 U.S.C. § 31301 et seq. (2000). Under the CMVSA, the Secretary of Transportation was required to promulgate regulations, to be administered by individual states, setting minimum uniform standards governing commercial drivers’ licenses (“CDLs”) for CMVs. Id. § 31308. CMVs include cargo-carrying trucks within a specified weight range, vehicles designed to transport at least 16 passengers, and vehicles carrying certain hazardous materials. Id. § 31301(4). Among other things, the statute mandates that CDL tests include written and driving components. Id. § 31308(1).
The federal standards governing CDLs do not establish a training regimen. In other words, “there are no prerequisite Federal training requirements to obtain a CDL.” Minimum Training Requirements for Entry-Level Commercial Motor Vehicle Operators, 68 Fed.Reg. 48,863, 48,864 (proposed Aug. 15, 2003) (codified as amended at 49 C.F.R. pt. 380). “Generally, drivers individually prepare for the CDL tests by studying such areas as vehicle inspection procedures, off-road vehicle maneuvers and operating a CMV in traffic.” Id.
While the CDL program does not mandate any CMV training, some segments of the private sector, with guidance from the federal government, have attempted to promote effective training practices. In 1985, FHWA published a Model Curriculum for Training Tractor-Trailer Drivers (“Model Curriculum”). See Joint Appendix (“JA.”) 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 “[graduates of this Curriculum cannot be considered fully trained, .‘ready to solo’ type drivers” unless “the Curriculum is considerably expanded and enriched to
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 Institute develops standards for training truck drivers, and it certifies private training organizations that meet or exceed its recommendations. PTDIA acknowledges that the Model Curriculum “has been the ‘bible’ around which the PTDIA has built its standards.” Professional Truck Driver Institute of America, Comments to 49 C.F.R. pt. 383, at 3, reprinted in J.A. 68. To qualify as adequate under PTDIA standards, a track driver training program must provide 147.5 hours of instruction including 44 hours of combined street and range time. Id. at 10, J.A. 75.
Congress revisited the issue of CMV safety in 1991 when it passed ISTEA. The rulemaking at issue here was commenced pursuant to § 4007(a) of the Act, which provides:
(a) ENTRY LEVEL.-
(1) STUDY OF PRIVATE SECTOR. — Not later than 12 months after the date of the enactment of this Act, the Secretary shall report to Congress on the effectiveness of the efforts of the private sector to ensure adequate training of entry level drivers of commercial motor vehicles. In preparing the report, the Secretary shall solicit the views of interested persons.
(2) RULEMAKING PROCEEDING. — Not later than 12 months after the date of the enactment of this Act, the Secretary shall commence a rule-making 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.
B. Implementing ISTEA’s Dictates
1. Studying the Adequacy of Entry-Level Driver Training
As a first step toward implementing § 4007(a) of ISTEA, FMCSA’s predecessor, FHWA, issued an advanced notice of proposed rulemaking. Training for All Entry Level Drivers of Commercial Motor Vehicles (CMVs), 58 Fed.Reg. 33,874 (announced June 21, 1993) (to be codified at 49 C.F.R. pt. 383). Noting the requirements of § 4007(a), FHWA solicited comments on “the need to require training of all entry level drivers of commercial motor vehicles (CMVs).” Id. The agency further explained that it had contracted with an outside company to produce a study examining the effectiveness of private sector efforts to ensure adequate training of entry-level CMV drivers. Id. at 33,875. Information gleaned from this study would form the basis of the report to Congress
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 began by surveying the training levels among drivers of heavy trucks, motor coaches, and school buses. What it found was not encouraging: “The conclusion of this study is that none of the three private sectors are effectively providing adequate training.” 1 Adequacy Report at 2, J.A. 173. Specifically, the Adequacy Report found that “the heavy truck sector has the smallest percentage of carriers offering adequate training (about 9 percent),” while only 18.5 percent of motor coach carriers offered adequate training. Id. at 3-4, J.A. 174-75. The Report concluded that “the present level of training adequacy is not likely to improve due to the actions of the private sectors themselves.” Id. at 7, J.A. 178. Given widespread training failures across the industries it examined, the Report recommended that “[i]f it is desirable to target fewer than all three domains, the heavy truck domain should be considered first priority, followed by motorcoaehes.” Id. at 12, J.A. 183.
The Adequacy Report also made extensive findings on the form that “adequate” entry-level training would take. “With regard to heavy trucks,” the Report stated, “there is general agreement in the industry that the model tractor-trailer driver curriculum developed by the FHWA in the mid-1980s represents an adequate content and approach for training truck drivers.” 3 Adequacy Report at 1-6, J.A. 209. “Therefore, the model curriculum was the starting point in defining ‘adequate training’ for heavy truck drivers.” Id. Using the Model Curriculum as a baseline for analysis, the Report noted that “[f]or a program to be considered ‘adequate’-, it must have on-street hours.” Id. at B-5, J.A. 216.
The findings of the Adequacy Report were distilled into a Final Regulatory Evaluation, which FHWA transmitted to Congress in February 1996. The evaluation presented a cost-benefit analysis of mandating entry-level dxiver training in conformity with the Model Curriculum. On balance, the x'eport found, mandatory training would be beneficial. In its analysis, the agency discounted the anomalous results produced by some earlier studies of driver training, which had suggested that training might increase accident rates. Such “counterintuitive” findings, the ageixcy determined, likely reflected the pervasiveness of training programs that were “not adequate.” Final Regulatory Evaluation: Entry-Level Driver Training at 15-17 (May 1995), reprinted in J.A. 241-43. Adjusting for shoddy training programs made the benefits of good training clear. “Based on the information presented from case studies, a reduction in accidents is possible when training is well designed. Accident reductions in the 10 to 15 percent range are not unrealistic.” Id. at 20, J.A. 246. Economically, mandating training along the lines described in the Model Cuiriculum would yield substantial projected benefits. Against a cost of between $4.19 billion and $4.51 billion over 10 years, mandatox-y training was expected to generate a benefit in the range of $5.4 billion to $15.27 billion during the same period. Id. at 32-36, J.A. 258-62.
In Apx’il 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
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,
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,
In July 2004, petitioners, Advocates for Highway and Auto Safety (“Advocates”) and the Owner-Operated Independent Drivers Association, "filed separate petitions
In 1996, Congress passed an Act to “codify without substantive change laws related to transportation and to improve the United States Code.” Pub.L. No. 104-287, 110 Stat. 3388 (1996). , Oddly, the Act seems to repeal § 4007(a). Id. § 7(8),
Whatever the status of § 4007(a)— and for purposes of this opinion, we share the parties’ evident assumption that it remains operative — it seems clear that this court has authority to determine whether FMCSA’s final rule is arbitrary and capricious under the APA, 5 U.S.C. § 706(2)(A). FMCSA, whose chief mission is to ensure highway safety, see 49 U.S.C. § 113(b) (2000), has the undisputed authority to promulgate regulations responding to the findings of the Adequacy Report, see id. § 113(f) (authorizing the Secretary of Transportation to delegate authority to FMCSA). That is precisely what the agency set out to do when it issued its Notice of Proposed Rulemaking. See 68 Fed.Reg. at 48,863. And the parties do not doubt that the agency’s final regulations are subject to judicial review under the APA. In other words, for purposes of judicial review, it does not matter whether FMCSA’s final rule is viewed as an act taken pursuant to a specific duty under ISTEA or an act taken pursuant to the authority granted under the agency’s organic statute to address matters relating to highway safety. In either case, FMCSA lawfully set out to promulgate regulations that “respond” to the Adequacy Report. That is the basis upon which we review the final rule to determine whether it survives judicial scrutiny under the APA’s arbitrary-and-caprieious standard of review.
ii. Discussion
A. Standard of Review
A party challenging an agency’s rulemaking has the burden of showing that the agency action was “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A); see also City of Olmsted Falls v. FAA,
B. FMCSA’s Entry-Level Driver Training Rule
The contested final rule begins with the assurance that it “responds” to the Adequacy Report. See Minimum Training Requirements, 69 Fed.Reg. at 29,384. Rather than “respond” to the imperatives laid out in the Adequacy Report, however, the final rule completely ignores the study’s emphasis on practical, on-the-road training. The agency has adopted a rule with little apparent connection to the inadequacies it purports to address. For this reason, it fails review under § 706(2)(A).
The record reveals numerous disjunctions between the final rule and the findings of the Adequacy Report. Most glaringly, the final rule inexplicably abandons the recommendations of the Model Curriculum, despite the Adequacy Report’s heavy reliance on those recommendations. The Report, in its definition of adequate training, says that “the model curriculum was the starting point in defining ‘adequate training’ for heavy truck drivers,” and that it is largely applicable to the motor coach industry. 3 Adequacy Report at 1-6, J.A. 209 (emphasis added). FMCSA accepted this premise when it announced the rule at issue here. Minimum Training Requirements, 68 Fed.Reg. at 48,865 (“The agency believes that the Model Curriculum represents the basis for training adequacy.”). Methodologically, the Adequacy Report is entirely structured around the notion that “adequate training” is defined in reference to the Model Curriculum. But the final rule eschews the Model Curriculum altogether. While the curriculum devotes some attention to the topics covered by the final rule — for example, it prescribes five hours of instruction on personal health and safety, and 5.75 hours of training on hours of service requirements — those subjects are clearly secondary. Model Curriculum at 3, reprinted in J.A. 44. Overwhelmingly, the curriculum addresses topics directly related to driving skills, with a heavy emphasis on skills and techniques necessary to safely operate a heavy truck. None of the four areas covered by the final rule — driver qualification, hours of service, driver wellness, and whistleblower protection— have anything to do with operational skills. Thus, they fly in the face of the Adequacy Report’s recommendations.
A critical facet of the training program developed in the Model Curriculum is on-street training. Indeed, the Adequacy Report’s conclusions evince a presumption that any rule instituting mandatory training would contain a substantial on-street training component. Early on, the report says that “[f]or a program to be considered ‘adequate’ it must have on-street training.” 3 Adequacy Report at B-5, J.A. 216. The unsurprising assumption underlying this statement is that the best way to enhance safety among truck drivers is to ensure practical but supervised experience handling heavy vehicles. FMCSA’s final rule flouts this premise. Quite clearly, the four topics it embraces do not touch on the operational skills of driving a heavy truck. Nothing in the final rule, the administrative record, or even the arguments presented in litigation, suggests any reason to believe that the agency changed course on the basis of evidence that the Adequacy Report’s conclusions were faulty. The final
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.
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 benefit, FMCSA says: “A 4.7 percent reduction in crashes for this group would appear plausible when measured against the estimates of potential crash reduction measured in studies cited in the [Notice of Proposed Rulemaking], the [Advanced Notice of Proposed Rule-making], and its accompanying regulatory evaluation.” Regulatory Evaluation, Final Rule, Minimum Training Requirements for Entry-Level Commercial Motor Vehicle Operators at 21, reprinted, in J.A. 444. This makes no sense, because the studies to which this statement alludes are those that measured the effect of more substantial training.
Thus, from the premise that a particular method of driver training reduces crashes, the agency infers that anything it calls “driver training” will reduce crashes. This is patently illogical. It is also in direct tension with a specific finding of the Adequacy Report. To explain the correlation found in some studies between training and increased accident rates, the Adequacy Report noted that “researchers have attributed this tendency to the high variability in training quality, indicating that poor training may give the new driver a false sense of confidence in his/her abilities.” I 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.Sept. 12, 2005). In particular, counsel pointed to a section of the Adequacy Report that states: “One possible outcome ... could be a hybrid program, i.e., a combination of the Training— and Performance-based approaches that embodies the advantages of each.” See 1 Adequacy Report at 13, J.A. 184. But FMCSA’s invocation of that language misrepresents the discussion of “hybrid programs” presented in the record. First, as already
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 S.E., Inc. v. United Distribution Cos.,
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 lai’gely ignored the evidence in the Adequacy Report and abandoned the recommendations of the Model Curriculum without reasonable explanation; and it adopted a final rule whose terms have almost nothing to do with an “adequate” CMV training program. FMCSA simply disregarded the volumes of evidence that extensive, on-street training enhances CMV safety. FMCSA’s action was thus arbitrary and capricious under § 706(2)(A).
C. UMA’s Arguments
Petitioner UMA, in addition to endorsing the broad criticisms of the final rule, argues that the agency acted arbitrarily
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 rale. UMA responds that, in light of Sims v. Apfel,
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 Track Lines, Inc.,
UMA relies on Sims to argue that it is inappropriate to apply the general principles of issue waiver to administrative rule-making. 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,
UMA contends that, in light of the Court’s holding in Sims, FMCSA’s waiver argument is misplaced. Pet’r Reply Br. at 21 (“Rulemakings are classic examples of non-adversarial administrative proceedings.”). This argument is not unreasonable, because there appears to be no statute or regulation compelling exhaustion in advance of judicial review, and no argument has been made analogizing the agency’s rulemaking to adjudication.
The difficulty that UMA faces, however, is that the case law post-dating Sims gives little support to its position. For example, in Appalachian Power Co. v. EPA,
Neither Appalachian Power nor National Wildlife Federation mentions Sims or seeks to determine whether the rule-making proceedings in those cases were analogous to adversarial litigation. Sims was addressed, however, in National Mining Ass’n v. Department of Labor,
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,
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,
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,
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
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 of the final rule. See id. at 29,388. Third, UMA’s argument that it cannot afford to implement the final rule because the industry lacks a training infrastructure makes little sense, considering that UMA endorses the broader proposition that adherence to the Adequacy Report will appropriately involve more extensive training requirements than are now imposed by the final rule. Finally, UMA’s objection to the agency’s aggregation of crash costs seems confused. The agency used the average cost of crashes involving large trucks to estimate the average cost of all crashes affected by its rule. Id. at 29,397. Citing the motor coach industry’s lower frequency of accidents, UMA seeks to discredit the agency’s focus on the costs per accident generated by the trucking industry. Because UMA has not shown that motor coach accidents are less costly when they occur, the association has not demonstrated a methodological problem with the cost-benefit analysis beyond the ones already identified in this opinion.
D. The Appropriate Remedy
Petitioners’ opening brief oscillates with respect to the remedy sought. Compare Pet’r Br. at 46 (requesting vacatur) with id. at 60 (requesting remand). We are convinced that the final rule should be remanded, but that it should remain in effect while the agency crafts an adequate regulation. While unsupported agency action normally warrants vacatur, Ill. Pub. Telecomm. Ass’n v. FCC,
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 to our leaving the current rule in place, requesting only that we require the agency to engage in further rulemaking. UMA maintained that allowing the final rule to remain in effect would harm the motor coach industry, but its argument is unconvincing. Stressing the industry’s supposed economic vulnerability, UMA claimed that it cannot afford to implement the final rule. Id. at 14. But as noted earlier, this argument is hard to credit when UMA has been litigating in favor of a far more extensive — and presumably costlier — training
m. 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.