[Federal Register Volume 60, Number 238 (Tuesday, December 12, 1995)]
[Rules and Regulations]
[Pages 63648-63651]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-30034]
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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.
[[Page 63649]]
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]
BILLING CODE 4910-59-P