United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued February 2, 1999 Decided March 26, 1999
No. 98-1248
National Tank Truck Carriers, Inc.,
Petitioner
v.
Federal Highway Administration of the
United States Department of Transportation,
Respondent
On Petition for Review of an Order of the
United States Department of Transportation
Lawrence W. Bierlein argued the cause for the petitioner.
Andrew P. Goldstein and Kathleen L. Mazure were on brief.
Bruce G. Forrest, Attorney, United States Department of
Justice, argued the cause for the respondent. Frank W.
Hunger, Assistant Attorney General, and Michael Jay Sing-
er, Attorney, United States Department of Justice, were on
brief.
Before: Ginsburg, Henderson and Tatel, Circuit Judges.
Opinion for the court filed by Circuit Judge Henderson.
Karen LeCraft Henderson, Circuit Judge: Petitioner Na-
tional Tank Truck Carriers, Inc. (NTTC), a trade association
of companies engaged in commercial trucking, seeks review of
the changes to the North American Uniform Vehicle Out-of-
Service Criteria (OOSC) issued by the Commercial Vehicle
Safety Alliance (CVSA), a private, non-governmental organi-
zation consisting largely of state, local, federal and foreign
government officials. See Advance Notice of Proposed Rule-
making, Out-of-Service Criteria, 63 Fed. Reg. 38,791, 38,793
(1998) [hereinafter ANPRM], Joint Appendix (JA) 143.1 Be-
cause the OOSC are referenced in the regulations of respon-
dent Federal Highway Administration (FHWA), which is the
entity within the United States Department of Transportation
(DOT) responsible for regulating the commercial trucking
industry as to safety matters, see 49 C.F.R. s 390.5, NTTC
contends that the OOSC constitute substantive rules of the
FHWA. Moreover, NTTC asserts that the CVSA's April 1,
1998 amendments to the OOSC effected a change to federal
regulations without the requisite notice and comment proce-
dures of the Administrative Procedure Act (APA), 5 U.S.C.
ss 551 et seq. NTTC also contends that the FHWA violated
the Due Process Clause and the incorporation by reference
regulations, 1 C.F.R. Part 51, implementing the APA and
Federal Register Act, 44 U.S.C. ss 1501 et seq., and improp-
erly delegated its authority to the CVSA. For the reasons
set forth below, we dismiss NTTC's petition for lack of
jurisdiction.
__________
1 The CVSA began in the early 1980s when several western states
and Canadian provinces sought to provide trucking operations in
their region with greater uniformity on safety defect enforcement
tolerances. The FHWA encouraged the cooperative effort through
the Motor Carrier Safety Assistance Program (MCSAP) and all of
the states soon joined. Both the FHWA and NTTC are non-voting
members of the CVSA. See id. at 38,792-93, JA 142-43.
I.
In order to ensure public safety on the nation's highways,
the Congress enacted the Motor Carrier Safety Act of 1984,
Pub. L. No. 98-554, 98 Stat. 2829 (codified as amended at 49
U.S.C. ss 31501 et seq.) (Act), which inter alia requires the
Secretary of Transportation to "prescribe requirements for
... safety ... and standards of equipment of, a motor private
carrier, when needed to promote safety of operation." 49
U.S.C. s 31502(b); see also 49 U.S.C. s 31136(a)(1) (directing
DOT to promulgate regulations to "ensure that ... commer-
cial motor vehicles are maintained, equipped, loaded, and
operated safely"). In particular, the Act directs the Secre-
tary to "prescribe regulations on Government standards for
inspection of commercial motor vehicles" on an "annual or
more frequent" basis. 49 U.S.C. s 31142(b).
The FHWA has carried out this mandate by implementing
a bifurcated vehicle inspection system based on annual "ga-
rage style" inspections and random roadside inspections.
The FHWA promulgated the standards for the garage inspec-
tions in 1988 pursuant to the APA. They are codified under
Appendix G to Subchapter B of the Federal Motor Carrier
Safety Regulations (FMCSR). See 49 C.F.R. s 396.17; 49
C.F.R. Ch. III, Subch. B, App. G. The FMCSR also require
agents to order vehicles "out of service" if, as a result of a
roadside inspection, it is determined that their condition
"would likely cause an accident or a breakdown." 49 C.F.R.
s 396.9(c).
Nevertheless, the individual states are the primary enforc-
ers of the highway safety regulations at roadside inspections.
In return for their acceptance of MCSAP grants, the states
"assume responsibility for enforcing the ... (FMCSR) ...
including highway related portions of the Federal Hazardous
Materials Regulations (FHMR) ... or compatible State
rules." 49 C.F.R. s 350.9(a). To be compatible, a state rule
must be "identical" to the FMCSR and FHMR or fall within
applicable tolerance guidances. 49 C.F.R. s 350.3. Thus,
"compatible" rules are rules that "hav[e] the same effect as
the [FMCSR and FHMR]." Id.
The OOSC currently serve as a standard for roadside
inspections by state inspectors. See ANPRM, 63 Fed. Reg.
at 38,792, JA 142 ("All States participating in the Motor
Carrier Safety Assistance Program (MCSAP) have agreed
that their inspectors will use the [OOSC]...."). Specifically,
state law enforcement agents use the OOSC to carry out their
responsibilities under the FMCSR and to determine when a
commercial vehicle should be placed out-of-service. When
placed out-of-service, the vehicle must be removed immediate-
ly from the road and may not return until the condition is
corrected. See id. at 38,791, JA 141 (noting that OOSC are "a
list of those violations which are so unsafe that they must be
corrected before operations can resume"). Consequently,
application of the OOSC may result in significant financial
consequences to owners and operators of vehicles, including
delayed deliveries, loss of revenue and potential harm to
customer relations. The OOSC, however, were developed
privately and without public comment by the CVSA in 1985.
See id. at 38,792-93, JA 142-43. Each year, the OOSC are
amended without publication in the Federal Register or pub-
lic hearing or comment. See id. at 38,792, JA 142. The
OOSC are not part of the FMCSR, have not been promulgat-
ed pursuant to the APA and are available only through the
CVSA's offices in Maryland. [See Pet'r Br. at 7.]
In the Motor Carrier Act of 1991, Pub. L. No. 102-240, 105
Stat. 1914 (codified as amended at 49 U.S.C. ss 31301 et seq.)
(1991 Act), the Congress required the FHWA to adopt regu-
lations that prescribe penalties for driver violations of out-of-
service orders and linked the states' adoption of penalties
to their continued MCSAP funding. See 49 U.S.C.
ss 31310(g)(2), 31311(a)(17) (codifying these requirements).
As part of a rulemaking proceeding to implement the 1991
Act, the FHWA promulgated 49 C.F.R. s 390.5, which de-
fines an "[o]ut-of-service order" as
a declaration by an authorized enforcement officer of a
Federal, State, Canadian, Mexican, or local jurisdiction
that a driver, a commercial motor vehicle, or a motor
carrier operation, is out-of-service pursuant to ss 386.72,
392.5, 395.13, 396.9, or compatible laws, or the North
American Uniform Out-of-Service Criteria.
49 C.F.R. s 390.5; see Final Rule, Violations of Out-of-
Service Orders by Commercial Motor Vehicle Operators;
Disqualifications and Penalties, FHWA Docket No. MC-92-
13, 59 Fed. Reg. 26,022-29 (1994), JA 46-54.
In response to the agency's notice of proposed rulemaking,
see 58 Fed. Reg. 4640 (1993), the FHWA received 47 written
comments, including those submitted by 26 states and a
number of trade associations. See 59 Fed Reg. at 26,023, JA
47-48. As part of their comment, the Owner-Operator Inde-
pendent Drivers Association (OOIDA) raised the same legal
argument now raised by NTTC:
The out-of-service criteria are themselves fluid. The
[OOIDA] is aware of no rulemaking proceeding or legis-
lation that ever established out-of-service criteria, nor
can the Federal Highway Administration delegate that
authority to any other body without observing proper
administrative procedures.
Comments of the OOIDA in Response to Notice of Proposed
Rulemaking, FHWA Docket No. MC-92-13, at 4 (Mar. 16,
1993), JA 334.
In adopting section 390.5 of the FMCSR, the FHWA
rejected OOIDA's assertion that the OOSC were substantive
rules. Instead, the FHWA expressly viewed the OOSC as
enforcement guidelines. As the agency explained:
[T]he rule does not require any changes or additions to
substantive, underlying safety regulations or the manner
in which they are enforced.... The rule also does not
require changes in the manner in which States detect
out-of-service violations.
What the rule does require is that whenever any out-
of-service order is violated, sanctions must be placed on
the offending party. The final rule is being changed to
clarify that the underlying out-of-service order includes
those issued by Federal, State, Canadian, Mexican, and
local officials under Federal, State, Canadian, Mexican,
and local law. The proposed rule referred only to out-of-
service orders issued under Federal law. The statute,
however, includes no such limitation. In practice, under
the Federal/State partnership, States apply State law
which should be compatible with the FMCSRs. Federal,
State, Canadian, Mexican, and local jurisdictions that
enforce the FMCSRs through out-of-service conditions,
such as those contained in the current [OOSC], should
consider violation of these criteria to be the same as
violating the FMCSRs. If a driver is convicted of a
violation of any out-of-service order under such compati-
ble State law, the sanctions in this rule must be imposed.
59 Fed. Reg. at 26024-25, JA 49-50.
After the FHWA's rulemaking decision was published,
OOIDA moved for a stay of the new rules in which it
reiterated its view that the FHWA unlawfully delegated
authority to the states "without observing proper administra-
tive procedures." Motion to Stay of the OOIDA in Response
to Final Rule, FHWA Docket No. MC-92-13, at 3 (June 13,
1994), JA 346. The FHWA did not grant a stay, however,
and neither OOIDA, nor anyone else, sought judicial review
of the new rules.
On April 20, 1995 NTTC petitioned the FHWA to initiate
formal rulemaking and open a docket for public comment
regarding the validity and effectiveness of the OOSC. See
Decision, Pet. for Rulemaking, No. 96-08, at 1 (FHWA June
10, 1997) [hereinafter Pet.], JA 56. After the FHWA failed
for several months to act on NTTC's request to initiate a
rulemaking, NTTC petitioned this Court on September 6,
1996 for a writ of mandamus requiring the FHWA to rule on
NTTC's petition or, alternatively, for certain other relief.
The Court denied NTTC's petition in NTTC v. FHWA, No.
96-1339 (D.C. Cir. Feb. 27, 1997) (per curiam), JA 55, noting
that "[a]lthough the 20-month delay [by FHWA] in acting on
the petition for rulemaking is disturbing, petitioner has not
yet shown 'unreasonable agency delay' warranting issuance of
a writ of mandamus." Id. The denial was "without prejudice
to refiling in the event of significant additional delay." Id.
On June 10, 1997 a decision and order responding to
NTTC's petition was issued in FHWA Docket No. 96-08. See
Pet. at 1-3, JA 56-58. The decision stated that the FHWA
"will grant NTTC's petition and publish a rulemaking to
discuss the entire issue and to propose a resolution." Id. at
2-3, JA 57-58. On July 20, 1998 the FHWA issued an
ANPRM. Although the FHWA asserts that the issuance of
the ANPRM initiates the rulemaking requested by NTTC in
1995, the ANPRM addresses only the future scope and effect
of the OOSC and states that "[t]he FHWA is not ... seeking
comment on the substance of the [OOSC] at this time."
ANPRM, 63 Fed. Reg. at 38,794, JA 144.
The most recent revisions to the OOSC became effective
April 1, 1998. See Commercial Vehicle Safety Alliance, North
American Uniform Out-of-Service Criteria (Apr. 1, 1998)
[hereinafter OOSC], JA 1. On that day, NTTC petitioned the
FHWA for stay of application of the revised criteria. See
Pet. for Stay of Application of Revised Out-of-Service Criteria
and Request for Issuance of a Notice of Proposed Rulemak-
ing of National Tank Truck Carriers, Inc. (Apr. 1, 1998), JA
60-75. Because the FHWA did not rule on its request,
NTTC petitioned this Court for review of the April 1, 1998
revision to the OOSC.
II.
NTTC relies on the Hobbs Act, 28 U.S.C. s 2341 et seq., to
establish this Court's jurisdiction over its petition for review.
Under the Hobbs Act,
the courts of appeals have "exclusive jurisdiction to en-
join, set aside, suspend (in whole or in part), or to
determine the validity of ... all rules, regulations, or
final orders of the Surface Transportation Board made
reviewable by [28 U.S.C. s 2321]." Section 2321 makes
any "proceeding to enjoin or suspend, in whole or in part,
a rule, regulation, or order of the Surface Transportation
Board" reviewable under s 2342(5), except as otherwise
provided by an Act of Congress.
Aulenback, Inc. v. FHWA, 103 F.3d 156, 164 (D.C. Cir. 1997)
(quoting 28 U.S.C. ss 2321, 2342(5)) (emphasis added).2
From this language, it is apparent that only challenges to the
"rules, regulations, or final orders" of a governmental agency
are reviewable pursuant to the Hobbs Act. Therefore, the
Court's jurisdiction turns on the validity of NTTC's claim that
the 1998 OOSC revisions are in effect rules of the FHWA
promulgated without notice and comment rulemaking in viola-
tion of the APA.3
The CVSA's OOSC are not themselves federal rules subject
to our review under the Hobbs Act. Rather, the OOSC
merely interpret the standards set forth in existing federal
and state laws and regulations, such as 49 C.F.R. s 396.9,4
__________
2 Aulenback construed this provision to encompass requests for
review of rules, regulations or orders issued by the FHWA pursu-
ant to authority transferred to the DOT under the Department of
Transportation Act, Pub. L. 89-670, s 6, 80 Stat. 937 (1966). See
Aulenback, 103 F.3d at 164.
3 The APA defines a "rule," in relevant part, as "the whole or a
part of an agency statement of general or particular applicability
and future effect designed to implement, interpret, or prescribe law
or policy or describing the organization, procedure, or practice
requirements of an agency." 5 U.S.C. s 551(4). Although the APA
generally prohibits an agency from issuing a rule without public
notice and comment, it does not subject every rule to its require-
ments. Instead, an agency may develop "interpretive rules, general
statements of policy, or rules of agency organization, procedure, or
practice" without providing public notice and comment. Id.
s 553(b)(3)(A); see also Aulenback, 103 F.3d at 168-69 ("The
primary purpose of the procedural rules exemption in s 553 is to
ensure that agencies retain latitude in organizing their internal
operations.") (quotations omitted); Stuart-James Co. v. SEC, 857
F.2d 796, 801 (D.C. Cir. 1988) (holding that "a clarification or
explanation of existing laws or regulations" is exempt from APA
notice and comment), cert. denied, 490 U.S. 1098 (1989).
4 In relevant part, 49 C.F.R. s 396.9(c)(1) states, "Authorized
personnel shall declare and mark 'out of service' any motor vehicle
which was promulgated under the FHWA's general power to
set vehicle safety standards as provided in 49 U.S.C. s 31502.
As an example, we compare the FHWA regulations govern-
ing brakes on commercial vehicles with the relevant OOSC.
The FHWA regulations require commercial trucks to have
brakes "adequate to control the movement of, and to stop and
hold, the vehicle." 49 C.F.R. s 393.40(a). In addition, the
regulations spell out the "[s]pecific systems required" for
regular service and emergency brakes. See id. s 393.40(b).
These regulations also cross-reference other requirements in
Subpart C ("Brakes") of Part 393 ("Parts and Accessories
Necessary for Safe Operation") of C.F.R. Title 49 which inter
alia provide the technical specifics on brake tubing, see id.
s 393.46, lining, see id. s 393.47, valves, see id. s 393.49,
reservoirs, see id. s 393.50, and performance requirements,
see id. s 393.52. Moreover, "all brakes ... must at all times
be capable of operating." Id. s 393.48.
Although a commercial motor carrier may have additional,
consistent "equipment and accessories [that] do not decrease
the safety of operation," id. s 393.3, the federal regulations
are the binding legal norms and the operation of a commer-
cial vehicle that falls below the regulatory criteria is unlawful.
See id. s 393.1 ("No employer shall operate a commercial
motor vehicle, or cause or permit it to be operated, unless it is
equipped in accordance with the requirements and specifica-
tions of this part.") Thus, any commercial vehicle found to be
in violation of these regulations may be taken out of service
pending repairs or services needed to bring the vehicle into
conformity with the regulatory requirements. See id.
s 396.9(c)(2) ("No motor carrier shall require or permit any
person to operate nor shall any person operate any motor
vehicle declared and marked 'out of service' until all repairs
required by the 'out of service notice' have been satisfactorily
completed.").
The fact that the OOSC can be used to enforce these
regulations is irrelevant. See Aulenback, 103 F.3d at 168
__________
which by reason of its mechanical condition or loading would likely
cause an accident or breakdown."
("That [publication] gives [staff] crisper and more detailed
guidance ... than that provided by [statute] does not render
[publication's] provisions subject to notice and comment re-
quirements.") (quotation omitted). "The Court has recog-
nized that agencies do not 'develop written guidelines to aid
their exercise of discretion only at the peril of having a court
transmogrify those guidelines into binding norms' subject to
notice and comment strictures." Id. at 169 (quoting Commu-
nity Nutrition Inst. v. Young, 818 F.2d 943, 949 (D.C. Cir.
1987) (per curiam)). For example, a relevant section of the
OOSC simply indicates that for "electric brakes" a truck may
temporarily continue in operation so long as the "[a]bsence of
braking action" does not exceed "20 percent or more of the
braked wheels.... (393.48(a))." OOSC Brake System Crite-
rion 1(l ), JA 18. OOSC guidelines like these do not alter the
underlying substantive legal requirements found in the regu-
lations. See Aulenback, 103 F.3d at 166.
In addition, no federal statute or regulation either requires
or authorizes federal or state agents to use the OOSC in
deciding to place a vehicle out of service.5 Although NTTC
argues that the OOSC provide an independent basis for
placing a commercial vehicle out of service, the particular
regulation cited and relied on by NTTC, 49 C.F.R. s 390.5,
simply specifies that certain federal penalties set forth in 49
__________
5 NTTC improperly relies on the OOSC's "policy statement"
dealing with drivers to suggest that state and federal agents
necessarily use the OOSC to place vehicles out of service. See Pet'r
Br. at 9 (quoting OOSC at 2 (Part I "Policy Statement") ("The
necessity for all enforcement personnel to implement and adhere to
these standards is: (1) a matter of law...."), JA 5). The "policy
statement" dealing with vehicle safety criteria, however, does not
contain similar language. See OOSC at 7 (Part II "Policy State-
ment"), JA 10. Of greater significance, the OOSC by its own
statement denies any intent to supplant or expand federal commer-
cial motor vehicle safety regulations. See id. at 2 (Part I "Policy
Statement") ("Except where state provincial, or federal laws pre-
clude enforcement of a named item, motor carrier safety enforce-
ment personnel and their jurisdictions shall comply with these
driver out-of-service violation standards.") (emphasis added), JA 5.
C.F.R. ss 383.51(d) (disqualification), 383.53(b) (civil fines)
and 391.15(d) (disqualification) will be imposed upon those
convicted of violating an out of service order only if that order
is issued pursuant to a limited set of criteria, which include 49
C.F.R. ss 386.72, 392.5, 395.13, 396.9, other "compatible laws"
and the OOSC. 49 C.F.R. s 390.5 (definition of "out-of-
service order"). Section 390.5 is not itself an authorization to
place vehicles out of service nor does any regulation contain-
ing such an authorization use the defined term "out-of-service
order."
Furthermore, the Hobbs Act gives this Court no authority
to review the guidelines of a non-governmental organization
such as the CVSA. See 28 U.S.C. ss 2321, 2342(5). NTTC,
however, tries to overcome this jurisdictional defect by argu-
ing that the FHWA adopted the April 1, 1998 revision to the
OOSC through its incorporation into the definition of "out-of-
service order" in 49 C.F.R. s 390.5. But as we have already
noted, the definition provision is neither an authorization nor
incorporated in an authorization to take vehicles out of ser-
vice; therefore, the inclusion of the OOSC in s 390.5 does not
transform the OOSC into substantive rules.
Nor can NTTC now challenge the incorporating regulation
directly. Any challenge to 49 C.F.R. s 390.5 would have long
ago fallen victim to the time limitation in the Hobbs Act, 28
U.S.C. s 2344 (emphasis added), which provides, "Any party
aggrieved by the final order may, within 60 days after its
entry, file a petition to review the order in the court of
appeals wherein venue lies." See also Stone v. INS, 514 U.S.
386, 405 (1995) (noting necessity to strictly construe Hobbs
Act language is "is all the more true of statutory provisions
specifying the timing of review"); Natural Resources Defense
Council v. Nuclear Regulatory Comm'n, 666 F.2d 595, 602
(D.C. Cir. 1981) ("The 60 day period for seeking judicial
review set forth in the Hobbs Act is jurisdictional in nature,
and may not be enlarged or altered by the courts."). Since
the reference to the OOSC at issue was added to 49 C.F.R.
s 390.5, after notice and comment procedures, over four
years ago, see 59 Fed. Reg. at 26022, 26028, JA 47, 53, any
attempt to challenge the regulation now is plainly untimely.
Because we are without jurisdiction under the Hobbs Act
to review NTTC's petition, we need not consider its remain-
ing arguments. Accordingly, the petition is
Dismissed.