National Tank Truck Carriers, Inc. v. Federal Highway Admin. of U.S. Dept. of Transp.

Citation170 F.3d 203
Decision Date26 March 1999
Docket NumberNo. 98-1248,98-1248
CourtUnited States Courts of Appeals. United States Court of Appeals (District of Columbia)

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 Singer, Attorney, United States Department of Justice, were on brief.

Before: GINSBURG, HENDERSON and TATEL, Circuit Judges.

Opinion for the court filed by Circuit Judge KAREN LeCRAFT HENDERSON.


Petitioner National 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 organization consisting largely of state, local, federal and foreign government officials. See Advance Notice of Proposed Rulemaking, Out-of-Service Criteria, 63 Fed.Reg. 38,791, 38,793 (1998) [hereinafter ANPRM], Joint Appendix (JA) 143. 1 Because the OOSC are referenced in the regulations of respondent 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. § 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 procedures of the Administrative Procedure Act (APA), 5 U.S.C. §§ 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. §§ 1501 et seq., and improperly delegated its authority to the CVSA. For the reasons set forth below, we dismiss NTTC's petition for lack of jurisdiction.


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. §§ 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. § 31502(b); see also 49 U.S.C. § 31136(a)(1) (directing DOT to promulgate regulations to "ensure that ... commercial motor vehicles are maintained, equipped, loaded, and operated safely"). In particular, the Act directs the Secretary to "prescribe regulations on Government standards for inspection of commercial motor vehicles" on an "annual or more frequent" basis. 49 U.S.C. § 31142(b).

The FHWA has carried out this mandate by implementing a bifurcated vehicle inspection system based on annual "garage style" inspections and random roadside inspections. The FHWA promulgated the standards for the garage inspections 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. § 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. § 396.9(c).

Nevertheless, the individual states are the primary enforcers 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. § 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. § 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 immediately 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 public hearing or comment. See id. at 38,792, JA 142. The OOSC are not part of the FMCSR, have not been promulgated 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. §§ 31301 et seq.) (1991 Act), the Congress required the FHWA to adopt regulations 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. §§ 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. § 390.5, which defines 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 §§ 386.72, 392.5, 395.13, 396.9, or compatible laws, or the North American Uniform Out-of-Service Criteria.

49 C.F.R. § 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 Independent 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 legislation 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 compatible 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 administrative 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...

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