580 F.2d 689 (D.C. Cir. 1978), 76-1922, Center for Auto Safety v. Cox

Docket Nº:76-1922.
Citation:580 F.2d 689
Party Name:CENTER FOR AUTO SAFETY et al. v. William M. COX, Individually, and as Federal Highway Administrator, et al., Appellants.
Case Date:June 09, 1978
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit
 
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Page 689

580 F.2d 689 (D.C. Cir. 1978)

CENTER FOR AUTO SAFETY et al.

v.

William M. COX, Individually, and as Federal Highway

Administrator, et al., Appellants.

No. 76-1922.

United States Court of Appeals, District of Columbia Circuit

June 9, 1978

Argued Oct. 19, 1977.

As Amended June 14, 1978.

Page 690

Appeal from the United States District Court for the District of Columbia. (D.C.Civil 74-1662).

Judith S. Feigin, Atty., Dept. of Justice, Washington, D. C., with whom Earl J. Silbert, U. S. Atty., Rex E. Lee, Asst. Atty. Gen., Leonard Schaitman, Atty., Dept. of Justice, Washington, D. C., was on brief, for appellants.

L. Irene Bowen, Washington, D. C., for appellee. Mark Steinbach and Clarence M. Ditlow, III, Washington, D. C., were on brief for appellees.

Charles A. Miller, Washington, D. C., filed a brief on behalf of A.A.S.H.T.O., amicus curiae urging the order of the District Court be vacated. George D. Busbee, and David R. Trippe, Atlanta, Ga., filed a brief on behalf of National Governors Conference, amicus curiae urging that the order of the District Court be set aside.

Before WRIGHT, Chief Judge, and BAZELON and ROBB, Circuit Judges.

Opinion for the Court filed by ROBB, Circuit Judge.

ROBB, Circuit Judge.

In this action, begun in the District Court by Center for Auto Safety, the court held that the American Association of State Highway and Transportation Officials (AASHTO) is an advisory committee to the Federal Highway Administration (FHWA) within the meaning of the Federal Advisory Committee Act (FACA), 5 U.S.C. App. I. Center for Auto Safety v. Tiemann, 414 F.Supp. 215 (D.D.C.1976). The Federal Highway Administrator appeals.

AASHTO is an organization of state and federal transportation officials, established in 1914, to foster the development of a nationwide integrated transportation system. The active membership consists of the heads of the various state transportation departments. Officials of the Department of Transportation, generally from the FHWA, sit on AASHTO committees in non-voting capacities. The Secretary of Transportation, or his designee, is a non-voting Ex officio member of the Executive Committee, the governing body of AASHTO. AASHTO is financed by annual dues payments of its members. Dues assessments in 1976 were $318,016.10 including $5,319.00 paid by the Federal Department of Transportation.

Page 691

Center for Auto Safety is a non-profit corporation interested in transportation issues.

The controversy arose out of the 1973 amendments to the Federal-aid Highway Act, 23 U.S.C. § 101 Et seq. The Act provides that states may receive federal financial assistance for highway construction, subject to supervision by the Secretary of Transportation to ensure that minimum safety standards are met. In 1973 Congress amended the Act to provide an alternative procedure whereby the Secretary may discharge his responsibility for the safety of highways built by the states with federal funds: instead of requiring federal inspectors to review each project, the Secretary may accept certification by the state that the projects "will be carried out in accordance with State laws . . . and standards which will accomplish the policies and objectives contained in or issued pursuant to this title." 23 U.S.C. § 117(a) (1976). This alternative procedure is known as "Certification Acceptance."

Shortly after the passage of the amendments, representatives of the FHWA circulated drafts of proposed regulations on Certification Acceptance to state and local governments, to the Advisory Commission on Intergovernmental Relations, and to AASHTO. Representatives of the FHWA met with AASHTO's Executive Director to discuss the proposed regulations and as a result of the meeting, forwarded "review packages" of materials on the proposed Certificate Acceptance regulations to the members of the FHWA-AASHTO Joint Committee on Directives Review, for comment. After comments were received a second draft of the regulations was prepared and FHWA officials discussed these with the Executive Director of AASHTO in April 1974. The regulations were promulgated, effective immediately, 1 on May 8, 1974.

In April 1974 the State of Georgia submitted to the Secretary a proposed Certification Acceptance plan for Georgia. In August Center for Auto Safety submitted comments on the Georgia plan, as well as on the Certification Acceptance regulations. In September the Secretary responded by letter to the comments on the Georgia plan, and at about the same time he approved that plan, the first such state plan approved. Thereafter, Center for Auto Safety learned that AASHTO had participated in the promulgation of the Certification Acceptance regulations and, pursuant to the FACA, requested transcripts of the...

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