Rulemaking Procedures

DEPARTMENT OF TRANSPORTATION

National Highway Traffic Safety Administration

49 CFR Part 553

[Docket No. 90-25; Notice 2]

RIN 2127-AD78

Rulemaking Procedures

AGENCY: National Highway Traffic Safety Administration (NHTSA), DOT.

ACTION: Final rule.

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SUMMARY: NHTSA is amending its procedural regulations that apply to

judicial review of regulations issued under Chapters 301, 325, 329, and

331 of Title 49 of the United States Code. The provisions at issue

address the time within which affected persons may seek judicial review

of a final rule issued by NHTSA under those statutes if a petition for

agency reconsideration of that rule has been filed. The amendment will

make the regulation consistent with the judicial review provisions of

the statutes and with recent judicial decisions.

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EFFECTIVE DATE: The amendments made in this rule are effective January

11, 1996.

Any petitions for reconsideration must be received by NHTSA no

later than January 26, 1996.

ADDRESSES: Any petitions for reconsideration should refer to the docket

and notice number of this notice and be submitted to: Docket Section,

Room 5109, National Highway Traffic Safety Administration, 400 Seventh

Street, S.W., Washington, DC 20590. (Docket Room hours are 9:30 a.m.-

4:00 p.m., Monday through Friday.)

FOR FURTHER INFORMATION CONTACT: Kenneth N. Weinstein, Assistant Chief

Counsel for Litigation, Office of Chief Counsel, National Highway

Traffic Safety Administration, 400 Seventh Street, S.W., Washington, DC

20590. Telephone: (202) 366-5263.

SUPPLEMENTARY INFORMATION: Certain provisions of the former Motor

Vehicle Information and Cost Savings Act (``Cost Savings Act'') and the

former National Traffic and Motor Vehicle Safety Act (``Safety Act'')

provide for judicial review of rules and standards issued thereunder.

These statutes were recently recodified, ``without substantive

change,'' as various chapters of Title 49 of the U.S. Code. Section 6

of Pub. L. 103-272.

With respect to Chapter 301, ``Motor Vehicle safety,'' 49 U.S.C.

30161(a) (formerly section 105(a) of the Safety Act) provides that any

person adversely affected by an order prescribing a motor vehicle

safety standard under chapter 301 may file a petition for judicial

review of the order in an appropriate United States Court of Appeals

``not later than 59 days after the order is issued.''

With respect to Chapter 325, ``Bumper Standards,'' 49 U.S.C.

32503(a) (formerly section 103(a) of the Cost Savings Act) provides

that any person who may be adversely affected by a standard issued

under section 32502 may file a petition for judicial review of the

standard in an appropriate United States Court of Appeals ``not later

than 59 days after the standard is prescribed.''

With respect to Chapter 329, ``Automobile Fuel Economy,'' 49 U.S.C.

32909 (formerly section 504(a) of the Cost Savings Act) provides that

any person who may be adversely affected by a regulation prescribed

under sections 30901-30904, 32908, or 32912(c)(1) may file a petition

for judicial review of the regulation in an appropriate United States

Court of Appeals ``not later than 59 days after the regulation is

prescribed.''

With respect to Chapter 331, ``Theft Prevention,'' 49 U.S.C. 33117

(formerly section 610 of the Cost Savings Act) provides that a person

who may be adversely affected by any regulation prescribed under that

chapter may obtain judicial review of that regulation in accordance

with 49 U.S.C. 32909, as described in the previous paragraph.

None of these statutory provisions require parties to seek

administrative reconsideration before filing a petition for judicial

review. However, NHTSA has authorized the filing of petitions for

reconsideration of standards and regulations issued under the Chapters

301, 325, 329, and 331. 49 CFR 553.35. Time limits and other procedures

applicable to such petitions are set forth in 49 CFR 553.35-553.39.

Section 553.39 currently provides as follows:

The filing of a timely petition for reconsideration of any rule

issued under this part postpones the expiration of the 60-day period

in which to seek judicial review of that rule, as to every person

adversely affected by the rule. Such person may file a petition for

judicial review at any time from the issuance of the rule in

question until 60 days after publication in the Federal Register of

the Administrator's disposition of any timely petitions for

reconsideration.

Unfortunately, this regulatory provision contains several erroneous

statements. First, the applicable time period for filing petitions for

judicial review under these chapters is actually 59 days rather than 60

days. Prior to the recent recodification, the statutory language

provided that petitions for review had to be filed ``prior to the

sixtieth day'' after the order in question was issued. Each of the

courts that considered the issue had ruled that this language required

petitions to be filed not later than 59 days after the issuance of the

order. The recodified language in each of the four chapters explicitly

states that the applicable review period is 59 days.

Second, recent judicial decisions construing the judicial review

provisions of the Administrative Procedure Act and similar statutory

review provisions have made it clear that a person who files a petition

for agency reconsideration of a regulation may not simultaneously seek

judicial review of that regulation, since the original decision is

rendered ``nonfinal'' as to that person. See, e.g., Wade v. F.C.C., 986

F.2d 1433 (D.C. Cir. 1993); United Transp. Union v. I.C.C., 871 F.2d

1114 (D.C. Cir. 1989); West Penn Power Co. v. U.S. EPA, 860 F.2d 581

(3rd Cir. 1988). See generally I.C.C. v. Brotherhood of Locomotive

Engineers, 482 U.S. 270 (1987); Bellsouth Corp. v. F.C.C., 17 F.3d 1487

(D.C. Cir. 1994).

Third, these decisions also demonstrate that the filing of a

petition for agency reconsideration by one person does not affect the

judicial review rights of other persons affected by the rule. See ICG

Concerned Workers Ass'n v. United States, 888 F.2d 1455 (D.C. Cir.

1989); West Penn, supra; Winter v. I.C.C., 851 F.2d 1056 (8th Cir.),

cert. denied, 109 S. Ct. 308 (1988) [GET U.S. CITATION]; Petroleum

Communications, Inc. v. F.C.C., 22 F.3d 1164, 1171 n.6 (D.C. Cir.

1994).

Finally, contrary to NHTSA's current regulation, a person who files

a petition for reconsideration may not file a petition for judicial

review ``at any time'' prior to the expiration of the statute of

limitations. Rather, a petition for review that is filed by a party

prior to the agency's action on his or her petition for reconsideration

is ``incurably premature'' and does not ``ripen'' when the ruling on

reconsideration is issued. TeleSTAR, Inc. v. F.C.C., 888 F.2d 132 (D.C.

Cir. 1989).

On the basis of its review of the case law, NHTSA issued a Notice

of Proposed Rulemaking (``NPRM'') to correct the erroneous portions of

section 553.39. 55 FR 45825 (October 31, 1990). First, the agency

proposed to eliminate the inaccurate reference to a 60-day limitations

period for judicial review. The proposal did not refer to a 59-day

period, however, since Part 553 applies to regulations issued under

statutes other than the four chapters identified above that have

statutory 59-day limitations periods. See, e.g., 49 U.S.C. Chapters 323

and 327.

In addition, the agency proposed language to clarify that the

filing of a petition for reconsideration tolls the limitations period

for judicial review only as to the petitioner, and not as to other

interested persons, and that such a petitioner may not seek judicial

review until the agency acts on the petition for reconsideration.

Discussion of Comments

Three commenters responded to the NPRM: Chrysler Corporation

(Chrysler), the Association of International Automobile Manufacturers

(AIAM), and the Motor Vehicle Manufacturers Association (MVMA). (MVMA

has subsequently changed its name to the American Automobile

Manufacturers Association.)

None of the commenters objected to the elimination of the erroneous

reference to 60 days as the time period within which a petition for

judicial review may be filed. However, Chrysler

[[Page 63650]]

and MVMA sought clarification as to what constituted final agency

action upon a petition for reconsideration and asked when ``a

petitioner [is] presumed to have notice of that action.''

In the absence of a petition for reconsideration, regulations and

standards promulgated under Chapters 301, 325, 329, and 331 are deemed

final for purposes of judicial review when they are ``issued'' (49

U.S.C. Sec. 30161(a)) or ``prescribed'' (49 U.S.C. Secs. 32503(a) and

32909(b)). (In this context, NHTSA interprets the word ``prescribed''

to be synonymous with the word ``issued.'') The agency deems a decision

in response to a petition for reconsideration, which usually will be

either a denial of the petition or a revision to the regulation or

standard that generated the petition, to be final for judicial review

purposes on the date that it is issued or prescribed.

A petitioner is presumed to have notice of the agency's action when

it is published in the Federal Register. See 44 U.S.C. Sec. 1507;

Federal Crop Insurance Corp. v. Merrill, 332 U.S. 380 (1947). However,

the language of each of these statutes indicates that the time period

for judicial review does not begin to run on the publication date;

rather it runs from the date that the regulation, standard, or decision

on reconsideration is ``issued'' or ``prescribed'' by the agency.

MVMA and AIAM opposed the remainder of the proposed amendment,

arguing that one party's petition for reconsideration should stay the

statute of limitations for judicial review for all interested parties,

not merely for the petitioner. They asserted that the proposed

amendment was not compelled by the case law described in the NPRM. They

also suggested that the amendment would increase paperwork and reduce

efficiency and could lead to the filing of unnecessary petitions for

reconsideration and/or protective petitions for review.

None of the commenters dispute the agency's conclusion that the

filing of a petition for reconsideration stays the running of the

limitations period for the petitioner because the filing of the

petition renders the prior decision ``nonfinal'' as to that petitioner.

(In this regard, NHTSA is aware that in a recent case, the Supreme

Court ruled that a petition to reopen a decision of the Board of

Immigration Appeals does not toll the limitations period or otherwise

affect judicial review of the Board's decision. Stone v. I.N.S., 115 S.

Ct. 1537 (1995). However, the Court based its ruling on the specific

language of the judicial review provisions of the Immigration and

Nationality Act and policy considerations arising under that statute.

Indeed, the Court explicitly confirmed that, in general, the filing of

a request for agency reconsideration renders the underlying order

nonfinal for purposes of judicial review and that the petitioning party

cannot seek judicial review until the reconsideration is concluded. 115

S. Ct. at 1543.)

The commenters also agreed that persons who have not sought agency

reconsideration may seek judicial review immediately, without waiting

for the completion of the reconsideration process. However, in

suggesting that such other persons should be able, at their option, to

await the agency's decision on reconsideration before seeking judicial

review, the commenters lose sight of the fact that the reason such

persons may seek judicial review promptly is that the regulation is

final as to them. ``If a party has sought only judicial review, agency

action can be deemed final and hence reviewable as to that party,

regardless of whether other parties have moved for administrative

reconsideration.'' ICG Concerned Workers, 888 F.2d at 1457.

Given that the regulation is final as to all persons not seeking

reconsideration, there is no basis on which the agency (or the courts)

could legally extend the limitations period applicable to those parties

beyond the 59 days provided by statute. The case law clearly

demonstrates that ``finality with respect to agency action is a party-

based concept.'' IGC Concerned Workers, 888 F.2d at 1457, citing West

Penn, 860 F.2d at 586-87; Winter, 851 F.2d at 1062; and American Farm

Lines v. Black Ball Freight Serv., 397 U.S. 532, 541 (1970).

It is true that the cases on this subject have focussed primarily

on whether a nonpetitioning party may seek judicial review of an agency

action while another party's petition for reconsideration of that

action is pending, rather than on whether such a party must seek such

review within the statutory limitations period. However, in the

agency's view, the latter principle necessarily follows from the fact

that the original decision is final as to all nonpetitioning parties.

NHTSA recognizes that under this amendment, some parties may feel

compelled to file protective petitions for reconsideration or judicial

review that might ultimately be withdrawn depending on the agency's

response to another party's petition for reconsideration. However, to

the extent that this is ``wasteful,'' it is not the fault of the

amendment; it is required by the case law. As noted in the NPRM, an

agency's regulations may not expand the jurisdiction of the Federal

courts beyond that established by Congress. City of Tacoma v. Taxpayers

of Tacoma, 357 U.S. 320, 336 (1957); City of Rochester v. Bond, 603

F.2d 927 (D.C. Cir. 1979).

The agency believes the public interest would be disserved by a

regulation that erroneously purported to confer Federal court

jurisdiction that does not exist, since a person might improperly rely

on the regulation to his or her detriment. To further reduce the

possibility of confusion or misunderstanding, NHTSA is adding a phrase

at the end of the first sentence of the amended regulation that

explicitly states that the expiration of the review period is not

postponed for persons who have not sought agency reconsideration.

Chrysler requested clarification as to the amended rule's impact

upon associations composed of various member companies. Chrysler

suggested that an association's petition for reconsideration should

stay the limitations period for judicial review for the members of the

association as well as for the association itself.

NHTSA realizes that some individual members of an association might

want to wait for the agency's response to their association's petition

for reconsideration before deciding whether to seek judicial review.

However, as MVMA emphasized in its comments, other members might want

to seek such review immediately. Consistent application of the

principle of finality requires that if individual members of an

association are permitted to seek judicial review of the original

regulatory action following disposition of the association's petition

for reconsideration, they must be precluded from seeking immediate

judicial review during the pendency of that petition.

Thus, when an association files a petition for reconsideration

solely in its own name, such a petition would only extend the right of

the association itself to seek judicial review following

reconsideration. Under those circumstances, the members would not have

any right to an extended period for seeking judicial review derived

from the association's petition. However, if the association explicitly

files its petition for reconsideration on behalf of all of its members,

or some specifically identified members, those members would each be

deemed as having filed a petition. Of course, under that scenario, none

of the identified members could individually seek judicial review while

the petition for reconsideration is pending.

The purpose of the amended rule is not to encourage pre-mature

requests for judicial review; rather, the amendment seeks to provide

notice of the applicable

[[Page 63651]]

law. Thus, each person who considers himself or herself to be aggrieved

by a NHTSA rule or standard must file a timely petition for

reconsideration or a timely petition for judicial review in order to

preserve his or her ability to challenge the underlying rule.

NHTSA wishes to emphasize two additional points. First, this

amendment does not preclude any person who is aggrieved by the agency's

action in response to a petition for reconsideration from seeking

judicial review of that response, since such a response is itself a

reviewable agency action. Second, a person who files a petition for

reconsideration may obtain judicial review of all aspects of the

original order, not merely the portion of that order on which he or she

sought reconsideration. See Bellsouth Corp., 17 F.3d at 1489-90.

However, persons who did not seek timely reconsideration or timely

judicial review of the original agency action may only challenge the

actions taken by the agency in response to the petition for

reconsideration. All other issues were final as to the nonpetitioning

parties at the time of the original action. Therefore, any court

challenge by nonpetitioning parties to agency actions not affected by

the response to the petition for reconsideration must be made within 59

days of the original agency action.

Rulemaking Analyses and Notices

Executive Order 12866 and DOT Regulatory Policies and Procedures

This rulemaking was not reviewed under E.O. 12866. NHTSA has

analyzed this rulemaking determined that it is not ``significant''

within the meaning of the Department of Transportation's regulatory

policies and procedures. Because the changes are only procedural in

nature, they will not have any cost impacts.

Regulatory Flexibility Act

NHTSA has also considered the impacts of this final rule under the

Regulatory Flexibility Act. For reasons discussed above, I hereby

certify that this rule will not have a significant economic impact on a

substantial number of small entities.

Paperwork Reduction Act

There are no requirements for information collection associated

with this final rule.

National Environmental Policy Act

NHTSA has also analyzed this final rule under the National

Environmental Policy Act and determined that it will not have a

significant impact on the human environment.

Executive Order 12612 (Federalism)

NHTSA has analyzed this rule in accordance with the principles and

criteria contained in E.O. 12612, and has determined that this rule

will not have significant federalism implications to warrant the

preparation of a Federalism Assessment. No State laws will be affected.

Civil Justice Reform

This final rule does not have any retroactive or preemptive effect.

List of Subjects in 49 CFR Part 553

Administrative practice and procedure.

PART 553--RULEMAKING PROCEDURES

In consideration of the foregoing, 49 CFR part 553 is amended as

follows:

1. The authority citation for part 553 of title 49 is revised to

read as follows:

Authority: 49 U.S.C. 322, 1657, 30103, 30122, 30124, 30125,

30127, 30146, 30162, 32303, 32502, 32504, 32505, 32705, 32901,

32902, 33102, 33103, and 33107; delegation of authority at 49 CFR

1.50.

2. Section 553.39 is revised to read as follows:

Sec. 553.39 Effect of petition for reconsideration on time for seeking

judicial review.

The filing of a timely petition for reconsideration of any rule

issued under this part postpones the expiration of the statutory period

in which to seek judicial review of that rule only as to the

petitioner, and not as to other interested persons. For the petitioner,

the period for seeking judicial review will commence at the time the

agency takes final action upon the petition for reconsideration.

Issued on: December 5, 1995.

Ricardo Martinez,

Administrator.

[FR Doc. 95-30034 Filed 12-11-95; 8:45 am]

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