UNITED STATES COURT OF APPEALS FOR THE D.C. CIRCUIT


NATL TANK TRK CARR

v.

FHA


98-1248a

D.C. Cir. 1999


*	*	*


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 




__________

n 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


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


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,


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


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


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


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 




__________

n 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),


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."


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 




__________

n 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


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 




__________

n 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.