Center for Auto Safety v. National Highway Traffic Safety Administration

Dеpository under the ceilings interest rate SAFETY, Monetary Deregulation

Institutions FOR AUTO CENTER Petitioner, (1980 Act)2 was limited Act of 1980 Control (1975 102 of Pub.L. No. 94r-200 by section v. togeth- the two statutes Act).3 Construing TRAFFIC HIGHWAY NATIONAL er, court held that both interest the district ADMINISTRATION, SAFETY protected on ceilings rate and differentials Respondent. through maintained accounts must be No. 81-2245. 31, March 1986.4 court’s deci- Subsequent to the district Appeals, Court of United States sion, however, the Garn- Congress enacted Circuit. District Columbia Act of Depository Institutions St. Germain 18, 1982. Nov. Argued 1982, 326(a) section Pub.L. No. 21, 1983. Decided June that “section 102 specifically provides Thus, apply- repealed.” [the Act] exists,5 validity it now ing the law as a determination depends upon

Rule 115 are barred

of whether the DIDC’s actions upon whether

by the 1975 Act but rather protected accounts ceilings

interest rate on statutory be eliminated under the new

may Accordingly, this case is remand-

scheme.6 make court to enable it to

ed to the district a determination.

such

So ordered. See, e.g., seq. v. Mobil Oil 5. Gulf Offshore Co. 3501 et The Act established 2. 16, 2870, charged responsibility Corp., with the 101 S.Ct. the DIDC and it 453 U.S. 486 n. eliminating soon as interest rate controls “as 69 L.Ed.2d 784 n. feasible,” economically 3501(a), 12 U.S.C. § March 1986. but not later than particular, will need to be a determination 6. 326(d) re- section made on the issue whether 102(a) Under seсtion of the 1975 ceilings quires maintained on rate to be interest regulatory agencies pro- financial were several protected to a resolution of accounts. Relevant eliminating reducing from interest hibited official be inter alia the DIDC’s that issue any category of account rate differentials existing statute, interpretation and whether of the Congress on December 1975 unless proposes category of accounts Rule some prior ap- given written notification and ceilings which differ interest rate to establish proval was obtained from the House and the immediately pri- existing highest rate acting by concurrent resolution. Such Senate approval differ- interest rate elimination of the when or to the was not obtained the DIDC adopted Rule 115. ential. 207(b)(1) provides of the 1980 Act 4. Section repealed Act was that section 102 March as of Bezdek, D.C., Washington,

Barbara L. Dittow, with whom Clarence M. Wash- D.C., brief, ington, petition- was on the er. Rubenstein, Atty. Highway

Enid Nat. Admin., D.C., Safety Washington, Traffic Bemdt, (NHTSA), with whom Frank Gen. Counsel, Allen, and David W. Asst. Chief Counsel, Safety Nat. Traffic Ad- min., D.C., Washington, (NHTSA), were on brief, respondent. MIKVA, Judge, Before: MacK Circuit INNON, Judge, Senior Circuit and SWYG ERT,* Judge, Circuit United States Senior Appeals Court of Seventh Circuit. PER Opinion CURIAM.

Separate opinion filed Senior Circuit MacKINNON, concurring in the Judge judgment.

PER CURIAM: program the federal This case involves requirements, imposes efficiency average miles-per-gal- measured in terms lon on automobiles and trucks (mpg), in 1978. The years beginning for model (CAS) petitions for Safety Center for Auto the National review of action Safety Administration Transportation (NHTSA) an advance notice that withdrew notice, first rulemaking. That three 1981but withdrawn issued in * 294(d). Sitting by designation pursuant § to 28 U.S.C. later, requested public

months comment affected vehicles. 15 U.S.C. time, fuel effi- sub- possible improvements 2002(a)(1) (1976). in these At the same Although ject congressional approval, we conclude ciency standards. jurisdic- rule, average matter “may, by this court has amend issue, action at tion standard ... model year, we conclude that the is not a level controversy any subsequent also ripe for yet We therefore which determines is the maximum feasi- [it] petition. average dismiss the fuel level such ble Thus, year,” 2002(a)(4). begin- id. § 1985, ning required with model Background I. average efficiency mpg fuel will be 27.5 energy shortage As a reaction to the and modify unless NHTSA decides to that stan- resulting economic downturn that followed dard. 1973-1974, embargo Congress the oil en- To of its Energy Policy acted the and facilitate exercise discretion Conservation ‍‌‌​​‌​​‌‌​​‌​​​‌​‌‌​​‌​​​​​​​​​‌​‌‌‌‌‌‌‌‌‌​‌‌‌‌‌‍94^163, beyond, for model 1985 and (1975). years Pub.L. No. NHTSA Stat. terms, notice of general designed promulgated proposed the statute was advance on 1981. See 46 energy supplies “to increase domestic and demand; 8,056 (hereinafter Fed.Reg. (1981) availability; energy to restrain Notice). sought public That notice com- prepare energy emergencies.” [and] parties ment from interested on the im- S.Rep. Cong., No. 94th 1st Sess. Cong. reprintеd provements might be made in future 1975 U.S.Code & Ad. 1762, 1956, fuel standards. The notice care- 1956. Title III of that News statute, separately fully known as Title V of the stated that its issuance was not in- tended to indicate that stricter standards Motor Vehicle Information and Cost Sav- established, ings (MVICSA), necessarily Act would be but rather Pub.L. No. (codified purpose gather pertinent was to 89 Stat. 901-16 at 15 § (1976 information. Supp. Specifically, & V solic- §§ 1981)), ited mandatory relating established fuel stan- comments to available technol- economics, ogies, passenger safety dards for new automobiles and emission and re- considerations, quirements, energy beginning trucks with model specific agency, legislative 1978. The statute set numerical choices for the and ini- Congress. standards for affected manufac- tiatives for the These comments vehicles tured in model were due years by April 1978-1980 and re- quired Secretary Transportation 6, 1981, however, April On the White designee his to set such NHTSA standards presidential House issued a directive that years through for the model from 1981 announced the administration’s intention to 2002(a)(1) (1976). 1984. 15 U.S.C. Pursu- withdraw this advance notice of directive, statutory average ant to this rulemaking. Office of the Press See Secre- standard was set legislatively tary, Help the, Actions to Auto Indus- U.S. years through for the 1980 at 18.0 A-35, (JA) try reprinted Appendix in Joint mpg, mpg, mpg, respectively, 19.0 and 20.0 (“Because strong market demand id., see administratively and set for the expected fuel-efficient vehicles is to contin- years through mpg, 1984 at 22.0 24.0 ue, believes the of rule- NHTSA initiation mpg, mpg, mpg, 26.0 and 27.0 respectively, making post-1985 Fed.Reg. see 42 All of these unnecessary.”). dards to be thereaft- Soon prop- recent administrative standards were er, officially announced withdraw- NHTSA erly being set and are not Notice, Fed.Reg. al of the see challenged in this case. 22,243 (1981), essentially on three relying (1)

For model factors to beyond, justify change policy: 1985 and how- ever, specifically designates creating strong that market forces were MVICSA cars; mpg average 27.5 as the consumer demand fuel efficient (2) that manufacturers were responding meeting consumer demands and fulfilling those demands and planning were products the Nation’s energy conservation goals in needs; that would meet efficiency this sector” and that long as the de- “[a]s (3) that any gathered information during mands of the marketplace being are met April 1981 prove would useless because it and these demands fulfill the Nation’s ener- would not be current when eventually need- gy goals, conservation the public interest is ed. Finally, that, concluded “given being served.” Letter from Michael M. present situation, it is unlikely that the Finkelstein at 3-4. agency will need to commence rulemaking CAS then filed its timely petition for in the foreseeable future.” Id. review with this court. A preliminary mo- promptly petitioned CAS for reconsidera- tion to dismiss was filed the agency, decision, tion of asserting NHTSA’s premised alternatively on this court’s lack withdrawal of the January Notice wаs “not jurisdiction matter and on a cited, supported by the reasons ... unrea- claim that the petition for review was not sonable in of the expressed purposes yet ripe. By court, order of this that mo- [statute], and commands of the and ... not tion was referred panel to this for full public interest.” Letter Bar- briefing argument and together with the Bezdek, bara L. Attorney, Staff CAS merits of petition. CAS’ Peck, Raymond Administrator, NHTSA (May 16,1981), reprinted in 3A 56-58. The petition argued relying CAS that purely on Subject II. Matter Jurisdiction market forces contrary congres- was to the court, This like all appeals, courts of sional determination that mandatory stan- general not a court of jurisdiction and that, dards were needed and even if market jurisdiction has, itas to review di “[s]uch pressures are area, effective in this rectly the action of administrative agencies, requires statute the agency consider is specially by legislation conferred relating four technological feasibility, eco- fаctors — specifically to the determinations of such nomic the effect practicability, of other mo- ” agencies subject made to review .... tor vehicle and the need of the American NLRB, Federation of Labor v. nation to energy conserve determin- —when 401, 404, 300, 302, 308 U.S. 60 S.Ct. 84 L.Ed. ing the maximum feasible average fuel (1940); Sanders, cf. Califano v. 430 U.S. established, to be see 15 U.S.C. 99, 105, 980, 984, S.Ct. L.Ed.2d 192 2002(e) (1976). § (1977) (the Administrative Procedure Act petition This for reconsideration was de- does provide independent an basis for nied, CAS, both in a lengthy letter to Letter jurisdiction appeals). CAS, in the courts of Finkelstein,

from Michael M. Associate Ad- therefore, necessarily the judicial relies on ministrator for Rulemaking, NHTSA to provision review of the Motor Vehicle In Bezdek, Barbara L. Attorney, Staff CAS Savings formation and Cost Act to support (Sept. 1981), reprinted in JA and jurisdiction claim that this court has shorter, in yet a formal announcement in review NHTSA’s decision to withdraw the Register, the Federal see 46 Fed.Reg. advance notice of proposed rulemaking. documents, In these reiter- NHTSA That provides section of the statute in rele ated that market forces were stimulating part: vant manufacturers develop fuel efficient ve- Any person who may adversely af- hicles; indeed, suggested evidence rule by any prescribed fected under sec- plans announced manufacturers 2001, 2002, 2003, tion or 2006 of this title would far already exceed the standards may, prior days time to 60 after existence. also contested prescribed such rule is file claim that it ... acting contrary to the interest, asserting Appeals statute or the United Court of States summarily industry’s ongoing pro- that “the District of Columbia ...

gram of new . .. will result in investment review of such rule.... 2004(a) added). Notice, (1976) (emphasis withdrawing U.S.C. § argues issuing

NHTSA and subse- 2002(a)(4) as interpreted section quently withdrawing the advance notice of giving it broad discretion to determine proposed rulemaking, it neither modify whether to the fuel juris- nor established a rule at issue in this case. It also estab- dards diction of court this We under statute. not to exercise that discre- policy lished a agree cannot with that construction. causing tion if market forces were automo- Although 2004(a) section does not itself voluntarily improve bile manufacturers “rule,” define it does that review of indicate products. the fuel of their Fur- decisions the various courts of thermore, denying for re- CAS’ appeals is proceed in accordance with the consideration, informally con- provisions of the Adminis- cluded that the automobile manufacturers’ (APA). trative Procedure Act See fuel econo- plans voluntarily improving 2004(a) (1976) (“the court shall were sufficient to meet the nation’s my jurisdiction have to review the rule in ac- goals. conservation These state- energy cordance with chapter [i.e., 7 of Title 5 accompanying ments withdrawal grant appropriate relief as APA] clearly interpret the rele- provided APA, in such chapter”). The policy vant statute аnd indicate NHTSA’s turn, 701(b)(2) (1976), in provides U.S.C. § regarding granted the exercise of discretion that “rule” is to have the meaning given in legislative to it enactment. Given 551(4) (1976): 5 U.S.C. § prior construing our decisions the Adminis- “rule” means the or a part whole trative Procedure Act’s broad definition of agency general particular statement of or “rule,” we to conclude that compelled are applicability designed and future effect prescribed has a rule sufficient to NHTSA implement, interpret, law prescribe or grant jurisdiction this court under 15 U.S.C. or policy.... 2004(a) (1976). We previously have observed that definition is enough broad “to include near Ripeness ly every statement an agency may make III. ” Marshall, .... Batterton v. 648 F.2d Having determined that NHTSA’s (D.C.Cir.1980) (selection 700 Depart withdrawal of the Notice and its ment of Labor of a statistical methodology accompanying justifications constitute a analyzing unemployment data is a rule court, “rule” to review in this we definition); within APA see also Guardian turn to the whether question agency Savings Federal Loan & Association v. is ripe Although action FSLIC, 658, 662, 589 (D.C.Cir. F.2d 666 proposed the issuance of a notice of rule- 1978); Hardin, Corp. P.A.M. News v. 440 making, preliminary proceedings or other (D.C.Cir.1971). F.2d 258 n. 4 The mere rule, a of promote undertaken to fact that NHTSA did not denominate its ripe ten will not for review because the be withdrawal of the Notice a “rule” en may adopted rule not be or did, is not determinative of whether it forced, agency decision to terminate its fact, meaning issue a rule within the is rulemaking proceedings usually ripe statute. is the substance of what the “[I]t See, e.g., agency review as final action. [agency] purported has to do and has done v. Bureau Professional Drivers Council Broadcasting which is decisive.” Columbia (D.C. Safety, Motor Carrier 706 F.2d 1216 States, System, Inc. v. United 316 U.S. WWHT, FCC, Cir.1983); Inc. v. 656 F.2d 1194, 1200, 62 86 1563 S.Ct. L.Ed. ‍‌‌​​‌​​‌‌​​‌​​​‌​‌‌​​‌​​​​​​​​​‌​‌‌‌‌‌‌‌‌‌​‌‌‌‌‌‍(D.C.Cir.1981); Resources De 807 Natural (1942); accord Chamber of Commerce of SEC, Council, fense Inc. v. 606 F.2d 1031 OSHA,

United F.2d 467- States v. (D.C.Cir.1979). especially This is true 68 n. 4 Air (D.C.Cir.1980); Continental when, case, Lines, agency CAB, (D.C. present as in the 522 F.2d Cir.1975) (en that its decision to ter- banc). explicitly indicates rulemaking promulgated eighteen prior mínate is intended as a means at least months choosing the status over other rea- quo beginning, year. of the affected 22,- Fed.Reg. sonable alternatives. See Thus, 2002(f)(2)(1976). amend- 15 U.S.C. § (1981) (“it agency that unlikely ments to standards for the 1985 model will need to commence in the presume contrary we absent year —which Thus, future”). foreseeable to the extent to begin during evidence the autumn of withdraw- NHTSA’s statements 1983; promulgated early be 1984—must ing binding a represent amendments to standards for the 1986 mod- adopt improved decision not to or enforce 1984; early el must promulgated by efficiency standards for particular Second, 2002(h) requires and so on. section future, years represent in the but rather a pursuant amendments be issued these mpg decision to maintain the 27.5 standard rulemaking procedures to the informal con- provided Congress, for by they logically (1976), process tained in 5 a U.S.C. § ripe should be for review. will take a few months likely at least finality purposes But Thus, complete. the statute has built review of action is to be construed its structure a minimum lead time of at into “pragmatic way.” in a FTC v. Oil Standard itself, months. that would twenty By least Co., 232, 239, 101 488, 493, 66 449 U.S. S.Ct. mpg make a decision not to amend the 27.5 (1980) Laborar (quoting L.Ed.2d 416 Abbott for 1985 model standard vehicles Gardner, 136, 149, 87 tories v. 387 U.S. S.Ct. currently ripe final action for re- 1507, 1516, 18 (1967)). L.Ed.2d 681 NHTSA p. But see infra view. that, argues therefore because it left years, As for later model the record is open possibility will very Although much inconclusive. ar- CAS rulemaking proceedings initiate new gues that several of lead time are some, future, see, point e.g., 46 Fed. required before automobile manufacturers Reg. (“[t]he agency will continue stringent efficiency could meet more to monitor the effects of the market and 2002(a)(3) (1976) cf. U.S.C. § improve the efforts of manufacturers to (requiring to issue standards for 48,383, efficiency”); automobile fuel id. at 1,1977), the years by July model its the January decision withdraw Nоtice requires eighteen-month statute the only years by is nonfinal as to the covered the 2002(f)(2) plus time for period set in section would, indeed, rulemaking. terminated We 2002(h). section rulemaking informal under hard-pressed agen to conclude that the Moreover, far from conceded has NHTSA cy’s rulemaking decision to terminate for requirements; lead time in- year by January any lengthy the last covered the Notice, judicial deed, re ripe is for immediate to the extent that manufacturers are Thus, necessary view. it is to determine for to exceed standards cur- already planning Notice, years by January covered the existence, technology and have the rently in if decision to terminate its any, NHTSA’s so, appreciable available to do no lead time final, rulemaking binding is a decision— the statute beyond that established is, a final decision to leave untouched Thus, given the limit- necessary. would be statutorily established alternative fuel the by the timing requirements imposed ed mpg, of 27.5 see 15 standard evidence that statute and no conclusive 2002(a)(1) (1976). necessary, times will be longer lead its decision to withdraw NHTSA’s begin by noting Congress We rulemaking for model and terminate imposed timing require itself has several action nor agency is neither final year 1986 efficiency any change ments on in fuel early until ripe First, 2002(f)(2) of the standards. section year. necessarily It follows 1984 calendar requires that amendment MVICSA yet ripe is not as it that NHTSA’s decision mandatory that makes fuel standards years. model CAS’ subsequent must be relates to stringent those standards more review, therefore, But the notice did not petition for must be dis- Court: advance contemplate doing anything for ’85. years beyond. missed for model 1986 and Yes, your honor. Counsel: above, As noted decision to thereby withdraw the Notice and (emphasis Nov. Argument, Oral mpg maintain 27.5 as the fuel standard in the rec- added). uncertainty Given the ripe 1985 would be for review if year model court, this presented ord and briefs challenged. But being such а decision was that standards concession it is that situation far from certain whether being challenged proves tell- 1985 are not present exists in the case. Each of Indeed, challenge by “post- ing. CAS documents crucial to the NHTSA action not to standards for 1985” but being description reviewed vacillate in their perfect makes sense. year, the 1985 model years of the exact model affected for model mpg The 27.5 standard now set example, the ad- agency’s decision. For already an increase over the year 1985 is vance notice of uses standard in effect for model mpg 27.0 period” “post- the terms “1985-1995 sought a consistently 1984. And CAS period” interchangeably. Compare level of fuel effi- continuously increasing 8,056 8,057, 8,061. Fed.Reg. at with id. at motor vehicles —a ciency for the affected is inconsistent between similarly NHTSA position entirely is consistent with withdrawing its'Statement No- Thus, argument. at oral concession tice, Fed.Reg. (“1985-1995 see 46 being challenged, though action аd- period”), denying and its statement CAS’ unclear, years focused on model mittedly petition reconsideration, Fed.Reg. see 46 i.e., exactly years after those about 1985— 48,383 (“post-1985”). itself Finally, CAS yet for review is not which this inconsistency demonstrates this in its letter conclusion, ripe. Given petitioning for reconsideration. judi- properly dismissed until such time as (“after Compare “post- JA 56 1985” and cial review of decision is more NHTSA’s 1985”) (“in with JA 58 1985 and later model appropriate. years”). rationale” behind the The “basic uncertainty, Confronted with this if not courts, prevent is “to ripeness doctrine confusion, outright the model about premature adjudica through avoidance actions, affected NHTSA court tion, entangling from themselves ab specific inquiries addressed some to counsel disagreements stract over administrative argument: CAS at oral agencies policies, protect and also to Counsel: itself initiated a pro- interference until an adminis ceeding by issuing an advance notice of trative decision has been formalized and its proposed rulemaking and invited way by effects felt in a concrete the chal input on what would be feasible lenging parties.” Abbott v. Laboratories economy levels to peri- be achieved the 136, 148-49, 1507, Gardner, 87 387 S.Ct. U.S. od after 1985. 1515, (1967). In the present 18 L.Ed.2d 681 Court: After when? case, only preliminary has made a Counsel: 1985-1995. efficiency decision not to amend the fuel Court: ... you say Did after 1985? existence for vehicles be standard now in Yes, your Counsel: honor. the ginning with model Until Court: Because the records and the calendar beginning year, of the 1984 when briefs wander around on whether if was effectively the decision will be agency’s for 1985 or after 1985. vehicles, the come final for model 1986 chance, either its agency has a' on own statutory delegation

Counsel: The indi- response petition initiative or in to another agency authority cates that the to reconsideration, mpg to amend the 27.5 amend the standards for 1985 or the for its give thereafter. or to better reasons for standard

849 Thus, unrea- supported by given, the the reasons agency not to do so.* decision requirements of the yet review the sonable ripe decision is not for and in view Act, Pub.L. Energy for review must be dismissed. and Conservation Policy 94H63, was not (1975), No. 89 871 and Stat. is so ordered. It I the public the conclude that interest. to advance agency’s decision withdraw the MacKINNON, Judge, Senior Circuit con- “agency com- notice constituted action ... curring judgment: in the law,” except- agency by mitted to discretion Safety (Center) peti- The Center Auto by review the Administra- ed by the the Na- tions to review withdrawal Act, 701(a)(2) 5 tive Procedure U.S.C. § Safety Administra- tional Traffic (1976). agree the I therefore Administration) of ad- (Highway tion must be dismissed. rulemaking proposed vance notice of which sought public possible improve- comment on I. of ments in the automobiles response to dislocations in the nation’s light period. and trucks in the embargo the by caused OPEC oil noticе that its The advance stated issuance 1973-1974, Energy Congress enacted the necessarily econo- did indicate Policy and Conservation Pub.L. No. standards would be established and that my 94-163, (1975) (Conservation 89 871 Stat. pertinent was to infor- purpose gather its Act), increasing “of domes- purposes mation to determine whether standards energy tic and supply, conserving managing and, so, set if at what level. should be demand, establishing programs standby issuance, three months of Within minimizing vulnerability this nation’s Highway Administration withdrew the ad- major interruptions supply petro- notice believed that mar- vance because it 94-340, 94th H.R.Rep. leum No. imports.” unnecessary ket forces made it initiate Cong., (1975), Cong. 1 & 1st Sess. U.S.Code rulemaking post-1984 1975,1762,1763. Recognizing Admin.News and, therefore, com- dards represented largest that the automobile ments which would received could not be single petroleum user of in the United put significant peti- use. Center States,1 pro- Act created a to re- the Conservation tioned Administration gram mandatory standards of the advance no- consider its withdrawal Energy tice, contending was not for automobiles and trucks.2 that withdrawal * issue, deciding type conclusively by we is the most basic Without considered concerning analy- register See our of administrative action. must doubts court review Park, concurring opinion, sis Preserve Overton contained Citizens 823-24, Volpe, withdrawal its ad- 91 concludes NHTSA’s U.S. S.Ct. 401 Note, (1971). generally vance notice of is “com- See L.Ed.2d Inaction, law.” Such a mitted discretion Judicial Review of Administrative that, agen- (1983). fails to when conclusion realize Colum.L.Rev. ripe cy in this re- decision case becomes view, S.Rep. Cong., it is because the refusal to act 94th 1st Sess. No. effectively mpg applica- as the Congress maintains 27.5 found that in 1972 year. particular Cf. 5 ble fuel standard for per- accounted for almost motor vehicles 551(13) (1976) (defining “agency ac- energy cent in the United of all consumed part tion” to include “the whole or a of an States, percent petroleum of all and about thereof, agency rule ... or the denial or failure products United States. consumed act”). statutory Under the scheme estab- supra, H.R.Rep. U.S.Code No. 94 - Congress, final lished such a decision Cong. 1848. & Admin.News must “maximum feasi- determine the mandatory economy Legislation providing average fuel fuel level for such model ble (1976), 2002(a)(4) economy first year,” was 15 U.S.C. after con- standards automobiles § by Hollings in sidering specific in the Senate Senator also listed the stat- introduced factors Sess., Thus, 1903, Cong., Cong. ute, 119 2002(e)(l)-(4). 93d 1st see id NHTSA’s S. § 17,230-33 (1973). An of by factors amended version is limited relevant authori- Rec. discretion Congress. incorporated tatively om- S. 1903 into the Senate’s established Judicial was bill, properly energy Fu- factors nibus conservation the National review to ensure these are

850

Policy and Conservation Pub.L. No. tion,4 subject to congressional approval, 94-163, amend such 301, 871, (1975). standards to 89 901 Al- reflect Stat. “maxi- § mum feasible average fuel economy level” established, though the Act alia, man- inter Id. those model years. 2002(a)(4).5 § datory economy passen- fuel standards ger year automobiles for model 1985 and 19, 1981, On January the Highway Ad- (1976),3 it

beyond, 2002(a)(1) 15 U.S.C. § ministration issued an Administra- advance notice of also authorized Energy 1973, Transportation required els and Conservation Act of S. to establish fuel 2176, Cong., (1973). S.Rep. 1981-1984, economy years 93d 1st Sess. No. for model standards 93-526, (1973). Cong., 93d 1st Sess. 5-6 The and was to amend the 1985 stan- authorized legislation goal “improving established a of dard, subject congressional disapproval. Id. industrywide economy fuel for new automo- passed 7014 in the form of an 88-89. H.R. comparison biles at least in 1984 in 622, Cong., 50% year.” amendment to S. 94th 1st Sess. the 1974 model Id. at 51. The Secre- Senate, (1975), passed by Cong. a bill 121 tary Transportation of was directed to establish (1975), granting standby rationing Rec. 9868 single economy “a minimum fuel standard for authority and other to the President year” permitted the 1978 model and was embargo event of an or other curtailment of establish such additional minimum fuel econo- 29,852-53 supplies. Cong.Rec. petroleum my necessary standards as to achieve the con- (1975). gressionally goal. Although mandated Id. S. subsequently The Senate amended the House Senate, passed Cong.Rec. alia, include, amendment to S. 622 to inter (1973), S.Rep. it died in the House. No. 94- economy provisions automobile fuel of S. 1883. 179, Cong., (1975). 94th 1st Sess. 18 30,594, 30,617 Cong.Rec. (1975). The con- Congress, In the 94th a number of bills deal- ference substitute for S. 622 included a com- ing economy with automobile fuel were intro- promise economy legislation version of the fuel hearings, duced in ‍‌‌​​‌​​‌‌​​‌​​​‌​‌‌​​‌​​​​​​​​​‌​‌‌‌‌‌‌‌‌‌​‌‌‌‌‌‍the Senate. After the sub- closely adopted by resembled that stance of these bills was consolidated into a 94-516, S.Rep. House in H.R. 7014. See No. single bill entitled the Automobile Fuel Econo- Cong., (1975) (compari- 1st 94th Sess. my Development and Research and Act of 7014, economy provisions son of fuel of H.R. S. Cong., (1975). S. 94th 1st Sess. substitute). and conference The confer- S.Rep. Cong., No. 94th 1st Sess. 18 substitute, however, ence extended the 1985 (1975). legislation required Secretary This year economy model quent fuel standard to subse- Transportation to “establish standards for years. model Id. at 154. The conference average economy minimum fuel for new auto- adopted Energy Policy substitute was as the light duty mobiles and trucks manufactured in 40,739, Cong.Rec. and Conservation Act. 121 through model 1985.” Id. at 20. 41,196 (1975). economy The fuel standards were to be set at provides that the aver- Act 3. The Conservation “maximum feasible levels” and were economy passenger age automobiles fuel industrywide average to result in an fuel year 1984 shall not after model manufactured economy percent level increase of 50 [to per gallon. 15 U.S.C. miles be less than 27.5 per gallon] by year miles model 1980 over 2002(a)(1) § year model 1974 models ... in an in- [and] dustrywide average economy Secretary 4. The Act fuel level which Conservation vests the represents 100-percent improve- Transportation authority at least a with the to enforce (to per gallon) by year mandatory ment 28 miles model fuel standards for au- See, average. e.g., (1976 1985 over the 1974 tomobiles. 15 U.S.C. 2008 & § passed Cong.Rec. Supp. 1981). Secretary delegated Id. S. 1883 the Senate. 121 V The 22,879 (1975). responsibilities these Adminis- Similarly, economy legisla- 501.2(f) (1982). automobile fuel tration. 49 C.F.R. § tion was considered the House in the 94th 5. 15 2002(a)(4) (1976) provides: Congress, first as a floor amendment H.R. Secretary may, by rule, amend the aver- Cong., (1975) 94th 1st Sess. —which age specified para- standard sought encourage energy conservation graph (1) year 1985, for model any or for through tax incentives and disincentives —of- subsequent year, to a level which he by Representative Sharp, Cong.Rec. fered determines is the average maximum feasible 18,695 (1975), part compre- and later as of a level for year, such model ex- bill, energy Energy hensive conservation cept amendment which has the ef- Policy Conservation and Oil Act of H.R. increasing fect of average Cong., (1975). H.R.Rep. 94th 1st Sess. standard to a level in excess per of 27.5 miles 94-340, supra, legislation No. at 87-88. This gallon, decreasing such standard to average established standards for a level per below gallon, 26.0 miles shall be years, including automobiles several model Congress submitted to the ... and shall not per gallon standard of 20.5 miles for model Congress take effect if either House of the per 1980 and a standard of 28.0 miles disapproves such amendment.... gallon Secretary for model 1985. The

851 situation, Notice) given present unlikely the it is rulemaking (January that the will need to commence on the im- sought “public comment in the rulemaking foreseeable future. provements passenger that can be made in Therefore, any information submitted in in economy truck fuel light automobile and response [January would Notice] period.”6 April the 1985-1995 the rulemaking purpose serve no immediate “program President announced a to address sufficiently and would not be current the of de- directly problems immediate the longer use in the run. Withdrawal of losses, sales, severe un- pressed record and public notice save the and industry will in- employment” plaguing the automobile having pre- to make the effort to dustry in the United States. Office pare put information that cannot be to Help Press to the Secretary, Actions U.S. significant use.7 6, 1981). part Auto As Industry (Apr. promptly petitioned High- The the Center this Administration program, Highway the way Administration to reconsider its deci- Notice would be January indicated that the withdrawing January sion the The Notice. withdrawn because the believed Center asserted that withdrawal of the Jan- rulemaking on post-1985 “the initiation of “not rea- uary supported by Notice was economy unnecessary.” fuel standards to be cited, sons in unreasonable [was] Id. See Intent, 46 Fed. at A-35. expressed purposes and commands of 21,203, 21,204 Reg. (1981). The sub- not in the and [Conservation] [was] Notice, public Disputing interest.”8 each of the withdrew the sequently contentions, the Highway Center’s Adminis- finding strong consumer demand for re- tration denied the Center’s resulted in a firm fuel efficient vehicles had consideration.9 The Center then filed its part commitment on the of automobile petition for review with this Court. economy fuel improve manufacturers to moved to Administration Highway The products. Accordingly, of their it concluded review, the Center’s dismiss upon when market the 1970’s” “[r]eliance Rulemaking, Proposed Advance Notice voluntary industry pressures efforts and [were] (1981). No- The Fed.Reg. explicitly vehemently rejected by Congress and economy propose new fuel not tice did establishing economy program, the fuel be- standards: ” industry’s deplorable record..., cause of the necessar- notice does The issuance Id. at 2. established, bewill ily standards indicate The also contended that the Center gath- information as an is intended but rather that re- Administration had not demonstrated whether ering process determine fuel im- liance on market forces for and, so, lev- what if be set should dards achieving provements the con- would result el.... gressiоnal goal “that the ‘maximum feasible’ added). (emphasis Id. at post- average be attained” fuel Accordingly, period. at 3. the Center Id. withdrawing concluded that Proposed Notice of of Advance 7. Withdrawal obliga- agency had to meet its 22,243 Notice the failed 22,243, (1981). Fed.Reg. Rulemaking, 46 “securing Act of tion under the Conservation possi- greatest achievements Safety to Letter from the Center for Auto ble.” Id. Administrator, Peck, High- Raymond National Finkelstein, (May Associate way Safety Michael M. 9. Letter from Traffic Administration Rulemaking, High- inappro- 1981). argued National Administrator The that it was Center Administration, rely way Safety Cen- priate Traffic Administration to for the 25, 1981). Safety (Sept. spur voluntary ter for Automobile efforts on consumer demand Petition, Fed.Reg. improve See Denial of automobile manufacturers Highway Administration reiterat- products. The Center of their stimulating manu- were “[n]othing that market forces record of ed asserted develop fuel efficient vehicles economy program suggests that in the facturers im- to further performance need for indus- that “the prove absence of future- in the foreseeable try’s produce will be efficient vehicles efforts unlikely.” Finkel- effective, competitive appears Letter from Michael energetic, more Rulemaking, stein, they foreign Associate Administrator than were makers’ after with 852 contending that the Court did not have that discretion in this case is not subject jurisdiction review its withdrawal po of the judicial review.10 Accordingly, join I in dis- January and, Notice alternatively, the missing the petition Center’s review. matter was' not ripe judicial Part II of our Per opinion, Curiam in which II. join, I holds that this Court jurisdiction has

to review the Highway Administration’s de- A. cision to withdraw the January Notice. Nevertheless, I Review of Highway conclude Administration’s the Conserva- tion Act vests the Highway decision is governed by the Administrative Administration with broad discretion to Act,11 determine Procedure provides whether which that an to amend the post-1984 fuel еconomy stan- agency reviewable, action is judicially ex- dards, and that cept to agency’s exercise of the extent that the “agency action is Highway Safety agency challenged National Traffic Administra- The action in this case is tion, Safety “Passenger to the Center for Automobile of a withdrawal notice entitled (Sept. 1981). agency Light Average The indicated that Automobile and Truck Fuel Standards; Economy United States manufacturers had exceeded the Model Year 1985 and Be- yond” sought public fuel “on the standards for comments improvements that can be made in ... and cited evidence that the manufac- period.” planned in the 1985-1995 Advance turers to exceed the 1985 standards. Proposed Rulemaking, Fed.Reg. Notice of 8056, Id. at 2-3. (1981) added). (emphasis The Highway disputed Administration also requested Center’s for reconsideration allegation the Center’s that withdrawal of the Highway “complete Administration to contrary Notice was to the Conserva- rulemаking prior making so final a decision public agency tion Act and the interest. The whether to issue standards for 1985 and later monitoring noted that its “[c]ontinued years” model concerning and “to continue the demands of the market and the efforts of man- economy improvements in 1985 improve ufacturers to will enable years.” and later model Letter the Center timing to determine the and extent of [it] Peck, Safety Raymond for Auto tor, Administra- required further actions under the statute.” Id. Highway Safety National Traffic Adminis- Noting granted at 3. that the Conservation Act (May 1981) added). (emphasis tration post-1984 it discretion to review and amend the That these two critical documents in the record economy standards, Highway Adminis- clearly refer to the fuel standard for industry’s ongoing pro- tration stated “that the the 1985 model demonstrates gram products of new investment to make its 1985 standard is at in this issue case. There- competitive plants more and modernize its will fore, agree imposed since I that the time limits meеting result in ing consumer demands and fulfill- require Act Conservation that an place by energy goals the Nation’s conservation amendment 1985 standard be in agency this sector.” Id. The concluded that early passed, 1983 and that that time Per long marketplace as the demands of the “[a]s Op., supra, Curiam I conclude being are met and these demands fulfill the that the Administration’s decision to energy goals, Nation’s conservation ripe withdraw the is for review. being interest is served.” Id. at 4. 11. 15 U.S.C. § 2004(a) (1976) provides; 10. I find it necessary to decide whether the Any person adversely who be affected Highway Administration’s decision to with- by any prescribed rule under section judicial draw the Notice is 2002, 2003, may, or 2006 of this title because, view, my ripe review the decision is days prior pre- time to 60 after such rule is opinion for review. The Per Curiam concedes scribed ... file a in the United States Appeals Court of for the District of Columbia mpg a decision not to amend the 27.5 ... for review of such rule.... [The thereupon dard fоr 1985 model vehicles clerk of that shall cause [would be] court] currently ripe a final action for re- filed in such court the submissions written proceeding upon view. and other materials in the supra, Op., Upon filing at '847. Neverthe- Curiam which such rule was based. Per less, petition, jurisdic- it concludes that the Adminis- such the court shall have yet ripe tration’s is not tion with decision review to review the rule accordance provisions the fuel of the Admin- because standard [the being challenged not in this case. Id. at 701 ei istrative Procedure 5 U.S.C. seq. (1976) agree. ].... I do 846-849. by law.” 5 will divert scarce institutional resources committed to discretion 701(a)(2) (1976).12 expert “This section into an area that U.S.C. § strong judgment already creates a of reviewabili- has determined is not presumption ty only by already expend- that can be rebutted a clear even the effort worth showing judicial inap- very prospect litigation review would be ed.... [T]he a propriate.” agency give proposal Natural Rеsources Defense cause the to SEC, 124, than U.S.App.D.C. Inc. v. more elaborate consideration it Council, merit. might actually F.2d In deter- mining judicial agen- whether review of an added). (emphasis Id. cy appropriate, necessary action is it is recognized that the Finally, the Court consider three factors: strongest argument against reviewability judicial supervision the to safe- need for will often be posed was that the issues guard plaintiffs; the interests of the the judicial review. inappropriate impact of review on the effectiveness of An decision not to agency’s discretionary agency carrying congres- in out its regulate given activity inevitably a role; sionally assigned appropri- and the based, measure, large on factors not judicial ateness of the issues raised for inherently susceptable judicial resolu- review. internal e.g., management consider- tion — Id. at 606 F.2d at 1044. budget personnel; ations and evalu- as

This its own previously competence; weighing Court has considered ations of а reviewability agency’s competing policies of an exercise dis- within broad stat- agency’s utory cretion in the context of the refus- framework.... if an [E]ven adopt agency particular problem al a rule. In Natural considers a proposed Council, SEC, regulation, may Defense v. su- it determine worthy Resources Inc. special exper- within its pra, lying the Court considered whether an SEC for reasons has not promulgate yet decision not to a envi- tise that the time for action The circumstances in the equal employment ronmental and disclosure arrived.... rulemaking proceedings regulated industry may evolving rule after extensive in a regu- was con- that could vitiate the need for properly way reviewable. Court cluded that context of an agency’s lation. ...

decision not to a rule the interests of adopt (emphasis Id. at 606 F.2d at 1046 add- the plaintiffs ed). The concluded that when an Court

rarely present compelling unusual or cir- rule, “the record adоpt does not a calling judicial cumstances and reasons statement will be of little use case, present example, In the the SEC reviewing they court unless are nar- has not invaded substantive rowly particular [their] focused on the rule advo- rights, sin- statutory or constitutional nor (em- Id. by plaintiff petitioner.” cated gled special seemingly them out for and phasis added). treatment, even, indeed, nor taken unfair Nevertheless, the Court found the NRDC quo action to alter the status ante. adopt decision not to the rule issue SEC’s (footnote at 1045 omit- Id. at 606 F.2d reviewable under the circumstanc- properly Furthermore,

ted). the Court noted that not hold that presented. es The Court did interferes with judicial necessarily review adopt not to rules were agency decisions ” performance effective ‍‌‌​​‌​​‌‌​​‌​​​‌​‌‌​​‌​​​​​​​​​‌​‌‌‌‌‌‌‌‌‌​‌‌‌‌‌‍of its agency’s an per se because “the relevant “reviewable statutory mission: against reviewability....” incline factors Rather, to defend in court Id. at 606 F.2d

Requiring rules conсluded that adopt proposed its decision not to Court High- precludes prohibited the ex- Act Judicial review is also Conservation preclude way re- tent “statutes decision to withdraw Administration’s 701(a)(1) (1976). There view. ...” U.S.C. § Notice. suggestion by parties no that the has been discretionary adopt decisions not to rulemaking petition rules of a a proper sub- where, are here, reviewable as ject agency’s review because held a proceeding fact particular decision was focused on the rule and compiled narrowly a record focused suggested by petition.14 case, In this particular suggested on the rules but not however, de- Administration’s adopted. on any particular cision was focused (footnote Id. Applying prin- standard. omitted) (emphasis added). WWHT, established in NRDC I ciples Subsequently, WWHT, FCC, agency’s conclude that the decision to with- 211 U.S.App.D.C. 218, (1981), 656 F.2d 807 was draw the an exercise of Court held that an FCC order denying judicial its discretion not to review. rulemaking pеtition a properly review- able under the principles enunciated in B. NRDC. The rulemaking petition suggested proposed rule and the FCC Preliminarily, received limit- it is clear that the Conser- ed comments on that rule. Id. at 222-23, vation Act the decision whether to leaves at Conceding F.2d 811-12. that “the post-1984 economy amend the fuel stan- for reviewability case of the order . .. Highway dards to the discretion of the Ad- compelling even less than that in [was] Act provides ministration. The that the NRDC,” id. at 656 F.2d at the Highway Administration amend those Court held that the order was reviewable guidance no provides but toas strong of presumption because the in favor is to how the determine whether judicial 226-27, Id. at review. F.2d appropriate.15 such amendments are Fur- at 815-16.13 thermore, nothing legislative in history the of the Act limits the Conservation discre- Thus in the NRDC we concluded that Highway tion of the Administration in de- decision adopt SEC’s not to a rule was a ciding if and to proper subject judicial post-1984 when the amend review because the agency compiled economy High- had fuel the an extensive rec- standards.16 Thus ord on Similarly, way focused that rule. Administration broad discretion WWHT we concluded that the post-1984 FCC’s denial the economy amend fuel stan- tempered by stating My The colleagues Court its decision “fail to realize” the distinction by the between discretion afforded the Act to Highway deciding the decision to the institute is one Administration in wheth- largely that is economy committed to the discretion of er to amend the fuel standards and agency, scope the and that the imposed the constraints agency the Act on the must, necessity, such a determination amending economy the fuel very narrow. it exercises dards if its discretion to do Per so. WWHT, FCC, supra, U.S.App.D.C. Inc. v. Op. Curiam at 849 n. *. The mere fact that at 656 F.2d at 809. grant High- the Conservation Act does not way Administration unfettered discretion to 14. See WWHT, FCC, supra, 211 U.S. congressionally post- App.D.C. 222-23, amend the at established 656 F.2d at 811-12. economy limit, 1984 fuel standard doеs not as However, requires the Conservation Act my colleagues imply, the broad discretion to fuel standard be set determine amend whether that standard average “maximum feasible fuel lev- clearly granted agency by to the the Act. Highway el” if the Administration exercises its discretion to amend that standard. 15 U.S.C. 16. discussing 2002(a)(4), section Confer- 2002(a)(4) (1976). provides § The Act further Report ence on Conservation Act stated: [Highway given au- Administration] determining average maximum feasible thority adjust the “1985 and thereafter” economy, Secretary shall consider— standard ... to a level he determines (1) technological feasibility; average is the maximum feasible fuel econo- (2) practicability; economic my year. level for such model (3) the effect of other Federal motor vehi- S.Rep. Cong., No. 94th 1st Sess. 154 economy; cle standards on fuel (1975), Cong. U.S.Code & Admin.News (4) the need of Nation to conserve en- (emphasis added). ergy. 2002(e). §Id. dards, subject only congressional required regulation. dо so statute or 2002(a)(4) (1976).17 only hamper ability a result could Such agencies perform statutory their of the Highway Consideration Adminis duties. decision issue in this case tration’s three Finally, factors relevant Administration’s reviewability determination of set forth in decision to withdraw the Notice is NRDC,18 indicates its decision is not not well-suited for review. Where appropriate agency developed review. At the out as in NRDC the an exten set I simply rulemaking pro note that the Center has not sive record the basis of rule, any compelling judi ceedings particular demonstrated need for focused on a and in safeguard cial intervention to its interests. the agency WWHT decision focused on a rule, The Highway specific proposed High Administration’s decision in this case the withdrawing January Notice did not way Administration no amend congressional post-1984 alter the mandated post-1984 ments to the stan only opportu standards. The dards in its Notice. Nor did the nity arguably agency’s foreclosed Centеr propose any specific amendments to decision was an for the opportunity Center post-1984 fuel economy standards in its potential to comment on im for reconsideration of the provements period.19 in the 1985-1995 Ju result, Administration’s As a decision. necessary dicial intervention is not to vindi Highway record of the Administration’s de if, fact, cate this interest for the Center primarily conclusory cision consists state any meaningful contribution to make ments with agency explaining why subject on the economy, of automotive fuel January appropri drawal of the Notice was it submit such information to the ate, and statements of a similar nature Highway Administration in the context of a the Center withdrawal was explaining why rulemaking seeking amendment inappropriate.20 Highway Ad Since economy of the standards. post-1984 ministration’s decision did not focus on the particular merits of a amendment Furthermore, judicial High- review of the standards, . “judicial review way likely Administration’s deсision would abstract and undesirably have an impair agency. [would] the effectiveness of the Natural Resources hypothetical quality.” sought public comment SEC, Council, supra, 196 Defense Inc. v. possible improvement on in automobile and U.S.App.D.C. at 606 F.2d at 1047. This truck fuel in the 1985-1995 reviewability the case for less Court found Highway period. Since Administration than in NRDC be compelling in WWHT if has broad discretion to determine had not instituted rule- cause the post-1984 to amend the when rule, making proceedings on the necessarily it must have even WWHT, FCC, U.S.App. supra, Inc. v. greater discretion to decide if and when it find 656 F.2d at 817. I it even D.C. public input will seek to assist in its deter- record availa less so in this case where the mination whether to consider such amend- any pro focused on ble for review is not Judicial review of agency ments. decisions posed agency action. regarding whether to seek comment on their activities would the im- magnify C. portance of such decisions and would have Highway Ad- making agenсies holding the undesirable effect of The case for Jan- decision to withdraw the public participation reluctant to seek unless ministration’s supra. Brief at 17. See Notice. Petitioner’s note 5 (June 1982). Council, 18. Natural Resources Defense supra, U.S.App.D.C. at SEC, 606 F.2d provides in this case the Court 20. The record p. supra. at 1044. See discussion at brief from little more than an additional with supra. parties. See notes & each filed for review with Court, only to seeks reinstate the Center is far weaker than uary Notice reviewable finding the decision agency’s

the case for in either NBDC WWHT.

reviewable identify has failed to

While Center

significant protect- interest would ‍‌‌​​‌​​‌‌​​‌​​​‌​‌‌​​‌​​​​​​​​​‌​‌‌‌‌‌‌‌‌‌​‌‌‌‌‌‍be which decision, it agency’s

ed our review of the discourage would

is clear that such review seeking from Administration decisionmaking

public input process, into its Fur-

thereby impairing its effectiveness.

thermore, poorly the record in this case is is not judicial

suited for review because it amendment particular

focused

the fuel standards. recognize

Our that the previous decisions excepts cer-

Administrative Procedure Act

tain actions committed to discretion judicial Cognizant of the review.21

strong in favor of re- presumption

view, I hold that the nevertheless

Administration’s withdrawal

Notice, sought public comment on

possible improvements period, is such an action and

Accordingly, join dismissing I the Cen-

ter’s for review. al., NEUMANN, Appellants,

Albert et

v. VIDAL,

Henri et al.

No. 82-1685. Appeals,

United Court of States

District of Columbia Circuit.

Argued March 1983.

Decided June 1983. 701(a)(2) WWHT, FCC, U.S.App. Of supra, See Inc. v. course, 814-15; 225-26, concluded that both NRDC and WWHT Natural D.C. at 656 F.2d at fact, was, SEC, Council, supra, at issue reviewa action Resources Defense U.S.App.D.C. 606 F.2d at 1043- ble.

Case Details

Case Name: Center for Auto Safety v. National Highway Traffic Safety Administration

Court Name: Court of Appeals for the D.C. Circuit

Date Published: Jun 21, 1983

Citation: 710 F.2d 842

Docket Number: 81-2245

Court Abbreviation: D.C. Cir.