Public Citizen Inc. v. Mineta
| Decision Date | 15 September 2003 |
| Docket Number | No. 02-70303.,02-70303. |
| Parties | PUBLIC CITIZEN INC.; Center for Auto Safety; The Trauma Foundation; Andrew McGuire; Jane Kelly; Ralf Hotchkiss, Petitioners, Automotive Occupant Restraints Council, Intervenors, v. Norman Y. MINETA, Respondent, Alliance of Automobile Manufacturers, Inc., Intervenors. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Michael Tankersley, Washington, D.C., argued the case for the petitioners.
H. Thomas Byron III, DOJ, Washington, D.C., argued the case for the respondent.
Erika Z. Jones, Washington, D.C., argued the case for the respondent-intervenors.
On Petition for Review of an Order of the Department of Transportation, NHTSA. TRAN No. 49 CFR.
Before: Thomas M. REAVLEY,* A. Wallace Tashima, and PAEZ Richard A. Paez, Circuit Judges.
This case presents the novel question of when an order promulgating a regulation of the National Highway Traffic Safety Administration ("NHTSA") has been "issued" for the purposes of calculating the 59-day period in which a petition for review must be filed. We hold that an order has not been "issued" until it has been filed with the Office of the Federal Register and thus made available for public inspection. Although we conclude that the Petition for Review in this case was timely under the 59-day rule, for the reasons recounted below, we lack jurisdiction and thus transfer the Petition to the United States Court of Appeals for the District of Columbia Circuit (the "D.C. Circuit") under 28 U.S.C. § 1631.
Public Citizen, the Center for Auto Safety, the Trauma Foundation, Andrew McGuire, Jane Kelly, and Ralf Hotchkiss (collectively "Petitioners") seek review of NHTSA's December 2001 order ("December 2001 Final Rule" or "Final Rule")1 adopting amendments to Federal Motor Vehicle Safety Standard No. 208, 49 C.F.R. § 571.208 (2002) ("Standard No. 208"). In order to provide some context for the issues presented by Petitioners, we briefly explain the history and purpose of Standard No. 208. See Federal Motor Vehicle Safety Standards; Occupant Crash Protection; Appendix B-Evolution of the Air Bag Provisions in Standard No. 208, 65 Fed.Reg. 30,680, 30,740-41 (May 12, 2000) ("May 2000 Interim Rule" or "Interim Rule").
In 1966, Congress enacted the National Traffic and Motor Vehicle Safety Act of 1966 (the "Act"), Pub.L. No. 89-563, 80 Stat. 718, in order to "reduce traffic accidents and deaths and injuries resulting from traffic accidents." 49 U.S.C. § 30101. The Act directed the Secretary of Transportation (the "Secretary") or his delegate to issue appropriate Federal Motor Vehicle Safety Standards, Pub.L. No. 89-563, § 103, 80 Stat. 719, and the Secretary has delegated this authority to the Administrator of NHTSA, see 49 C.F.R. § 1.50(a) (1997); see also Freightliner Corp. v. Myrick, 514 U.S. 280, 284, 115 S.Ct. 1483, 131 L.Ed.2d 385 (1995).
Standard No. 208 was initially promulgated in 1967 and required manufacturers to install manual lap belts in all new motor vehicles. See Initial Federal Motor Vehicle Safety Standards, 49 C.F.R. § 371.21 (1970). In 1991, Congress included a provision in the Intermodal Surface Transportation Efficiency Act (the "ISTEA") that directed NHTSA to amend Standard No. 208 to require that all passenger cars and light trucks provide automatic occupant protection by means of air bags. 49 U.S.C. § 30127(b). However, the ISTEA did not specify an air bag system design that manufacturers were required to use, and left the design and testing procedures to NHTSA's discretion. NHTSA developed detailed testing criteria, including specific testing procedures, particular test dummies to be used in testing, injury criteria, and performance limits. Until March 1997, manufacturers had to meet the injury criteria limits in Standard No. 208 for air-bag equipped vehicles in barrier crashes at speeds of up to 30 miles per hour ("mph"), using both a belted 50th percentile adult male dummy2 and an unbelted one. 65 Fed.Reg. at 30,741.
In an effort to address the growing incidence of air-bag induced injuries,3 NHTSA adopted, at the prompting of Congress, a series of rules governing occupant safety, including the Transportation Equity Act for the 21st Century ("TEA-21"),4 which prompted the December 2001 Final Rule at issue here. Congress enacted TEA-21 after several congressional hearings5 during which many witnesses and members of Congress expressed concern that, under the then-existing Standard No. 208, manufacturers were required to design air bags to protect adult passengers who chose not to wear seat belts, which necessarily, albeit unintentionally, increased the risk of air bag injuries to infants and children. H.R.Rep. No. 105-477, at 7. TEA 21 directed the Secretary to "issue a notice of proposed rulemaking to improve occupant protection for occupants of different sizes, belted and unbelted, under Standard No. 208, while minimizing the risk to infants, children, and other occupants from injuries and deaths caused by air bags, by means that include advanced air bags." § 7103(a)(1). TEA-21 thus gave the Secretary broad discretion to accomplish the distinct goals of "improv[ing] occupant protection for occupants of different sizes, belted and unbelted" while "minimizing the risk to infants, children, and other occupants from injuries and deaths caused by air bags." Id.6
Pursuant to TEA-21, NHTSA issued a Notice of Proposed Rulemaking to modify Standard No. 208 on September 18, 1998, which proposed a broad range of possible changes, including a 30 mph barrier crash test and a 25 mph "offset deformable barrier crash" test for 5th percentile adult females. Federal Motor Vehicle Safety Standards; Occupant Crash Protection, 63 Fed.Reg. 49,958, 49,968 (Sept. 18, 1998). After receiving comments from interested parties, see Department of Transportation Docket No. 1998-4405-158, NHTSA issued a supplemental Notice of Proposed Rulemaking in November 1999, proposing two alternative unbelted test procedures and contemplating a 25 mph speed for the unbelted barrier crash test for the initial phase-in period, and increasing the test speed to 30 mph at a later date. Federal Motor Vehicle Safety Standards; Occupant Crash Protection, 64 Fed.Reg. 60,556, 60,556-59, 60,569-83 (Nov. 5, 1999).
On May 12, 2000, NHTSA published its May 2000 Interim Rule, adding a "wide variety of new requirements, test procedures, and injury criteria, using an assortment of new dummies." 65 Fed.Reg. at 30,680. Ultimately deciding to resolve the "uncertainty associated with the challenge of simultaneously achieving the twin goals of TEA-21 ... in favor of minimizing risk," NHTSA decided to reduce the maximum speed in the rigid barrier crash test for unbelted 50th percentile adult males and 5th percentile female dummies to 25 mph for the first and second phase-in periods,7 issuing that part of the rule "as an interim final rule" and planning a "multi-year effort to obtain additional data." 65 Fed.Reg. at 30,680, 30,719. It promised to "issue a final decision regarding the maximum test speed after giving notice and seeking public comment" and kept the docket for this rule change open for that purpose. 65 Fed.Reg. at 30,680.
Petitioners Public Citizen and the Center for Auto Safety filed a joint petition for reconsideration in June 2000,8 asserting that the May 2000 Interim Rule "not only does not improve occupant protection for all occupants but even decreases protection for some occupants." June 26, 2000 Petition for Reconsideration, available at http://dms.dot.gov/ search/searchFormSimple.cfm ("Docket Number" 7013). Among other requests, Public Citizen and the Center for Auto Safety suggested that NHTSA impose the 30 mph requirement on passenger cars and reserve the 25 mph test for light trucks, vans, and SUVs. Id.; 66 Fed.Reg. at 65,379-81.9
On December 18, 2001, NHTSA published the December 2001 Final Rule, 49 C.F.R. § 571.208 (2002), granting portions of the petitions for reconsideration and revising the regulations in certain respects, but denying those portions of the petitions that urged NHTSA to change the maximum unbelted barrier crash test speed back to 30 mph. 66 Fed.Reg. at 65,376. Thus, the 25 mph maximum speed requirement for unbelted dummies in barrier crash tests remained unchanged in the first and second phase-in periods. It is this December 2001 Final Rule that Petitioners challenge in their petition for review.10
As a preliminary matter, we must determine whether the petition was timely filed in this circuit within the 59-day period for seeking judicial review.
Under 49 U.S.C. § 30161:
A person adversely affected by an order prescribing a motor vehicle safety standard under this chapter may apply for review of the order by filing a petition for review in the court of appeals of the United States for the circuit in which the person resides or has its principal place of business. The petition must be filed not later than 59 days after the order is issued."
Because the 59-day period for seeking judicial review does not commence until an order is issued, the heart of our inquiry centers on what is meant by "issued."
The Federal Register indicates that the December 2001 Final Rule was "issued" on December 6, 2001, but was "filed" on December 17, 2001, 66 Fed.Reg. at 65,421, and published in the Federal Register on December 18, 2001, id. at 65,376. The petition was filed February 12, 2002. Therefore, the petition was timely filed if the date the Final Order was "issued" is the date of publication in the Federal Register or the date the Final Order was filed but not if it is the date on which the Federal Register indicates the Final Rule was "issued."
Petitioners contend that the 59-day deadline began to run on December 18, 2001, the date that the Final Rule was published in the Federal...
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