Interpretation ID: nht80-3.4

DATE: 06/16/80

FROM: AUTHOR UNAVAILABLE; Frank Berndt; NHTSA

TO: Motor Vehicle Manufacturers Association

TITLE: FMVSR INTERPRETATION

TEXT: This responds to the Motor Vehicle Manufacturers Association's May 27, 1980, "petition for extension of time in which to file a petition for reconsideration" and its petition for a stay of the effective date of this agency's rule on Information Gathering Powers, 49 CFR Part 510 (45 FR 29032; May 1, 1980). Both of the petitions are denied. If MVMA proceeds with its plans to file a petition requesting changes in Part 510, the petition will be treated as a petition for rulemaking and be given serious consideration.

Requirements regarding the timing of the submission of petitions for reconsideration and regarding the treatment of untimely reconsideration petitions are set forth in 49 CFR Part 553. Section 553.35(a) provides, in pertinent part:

The petition must be received not later than 30 days after publication of the rule in the FEDERAL REGISTER. Petitions filed after that time will be considered as petitions filed under Part 552 of this chapter.

Under this section, interested persons could have submitted a petition for reconsideration of Part 510 at any time between May 1, 1980, the date of publication, and June 2, 1980 (30 days plus an allowance for the weekend). The section does not provide for any extension of that period. Instead, it establishes the blanket rule that late petitions are to be treated as petitions for rulemaking.

The MVMA has not filed a timely petition for reconsideration. Your association had 32 days in which to file such a petition. It might have followed the almost unvarying practice of petitioners in this agency's rulemaking proceedings and submitted a petition setting forth its specific objections and arguments in full detail within the allotted time. Alternatively, it might have outlined each of its objections and the underlying arguments within the same period, leaving the details to be submitted subsequently in a supplementary submission. This alternative would have minimized MVMA's reported time difficulties. MVMA took neither course of action. Instead, it took the simple and unusual step of submitting a "petition" for the agency to set aside its regulations and accept a late petition for reconsideration. This approach is inconsistent with the purpose of Part 553 which is to ensure the administrative process moves forward in an orderly and timely fashion.

Although agencies can modify their procedural regulations in certain limited circumstances, the MVMA has not made an adequate showing to justify modification in this instance. In exceptional cases where the ends of justice are shown to so require, this agency can modify its procedural requirements. MVMA has not attempted to make any such showing. Your association has not adequately explained why it was unable to submit a petition within the available time. Similarly, it has not provided any basis for determining the likelihood of MVMA's success in having its petition granted.

With respect to your request for a stay of the effective date of Part 510, section 553.35(d) of 49 CFR provides that the filing of a petition for reconsideration does not stay the effective date of the final rule in question unless the agency provides otherwise. When a petitioner is able to make a clear and convincing showing under section 553.35(a) that compliance with the rule is not practicable, is unreasonable, or is not in the public interest, the agency could exercise its discretion to stay the effective date of the rule. Your petition for a stay of the effective date did not make any showing regarding any of these matters. Therefore, the agency will not take the unusual step of staying the effective date.

Again, as noted above, the denial of your petitions leaves open the opportunity to submit a petition for rulemaking detailing the desired changes in Part 510 and the arguments supporting those changes. NHTSA would fully consider such a petition under the procedures set forth in Part 552.

SINCERELY,

MOTOR VEHICLE MANUFACTURERS ASSOCIATION of the United States, Inc.

May 27, 1980

The Honorable Joan Claybrook Administrator National Highway Traffic Safety Administration

Re: Information Gathering Powers; 40 CFR Part 510, 45 Fed. Reg. 29032; Petition for Extension of Time in Which to File Petition for Reconsideration; Petition for Stay of Effective Date

Dear Ms. Claybrook:

By this letter the Motor Vehicle Manufacturers Association of the United States, Inc. (MVMA) * petitions for an extension of 60 days -- to August 1, 1980 -- in which to petition for reconsideration of the above referenced rule and for a stay of its effective date from June 16, 1980 until 30 days following NHTSA's response to a petition for reconsideration.

* MVMA members are: American Motors Corporation, Checker Motors Corporation, Chrysler Corporation, Ford Motor Company, Freightliner Corporation, General Motors Corporation, International Harvester Company, PACCAR Inc, The Nolan Company, Volkswagen of America, Inc., Walter Motor Truck Company, and White Motor Corporation.

On May 1, 1980, the National Highway Traffic Safety Administration (NHTSA) published a final rule governing the issuance and use of compulsory process, 49 CFR Part 510 (Docket No. 78-01; Notice 3; 45 Fed. Reg. 29032) ("Rule"). The Rule is quite extensive, covering the rights and duties of persons and entities from whom NHTSA seeks information by subpoena, general or special order, or written request in public or private hearings.

This rulemaking was initiated by a notice published December 27, 1977 (Notice 1, 42 Fed. Reg. 64628) which announced Part 510 and designated it to be an interim rule purportedly effective on that date. The same notice invited comments and indicated NHTSA's intention to promulgate a final rule in due course. MVMA and others filed extensive comments in response to NHTSA's invitation.

Notice 3, setting forth the final rule, would impose new and burdensome obligations on recipients of process from NHTSA. In MVMA's view, those obligations are not in each instance supported by statutory authority in the Safety Act, the Cost Savings Act or the Administrative Procedures Act.

MVMA and its member companies are studying Notice 3 with great care. The Association intends to address several aspects of the Rule by Petition for Reconsideration. In this particular instance, the 30 day period provided by 49 CFR Section 553.35(a) is not adequate for careful preparation of a petition.

NHTSA expended more than two years in preparation of a final rule. An extension of only 60 days in which to allow careful and deliberate preparation of comment on the final rule by MVMA is therefore entirely reasonable.

To MVMA's knowledge there is nothing in the experience of government or industry personnel since the enactment in 1966 of the National Traffic and Motor Vehicle Safety Act to suggest that a delay of a few weeks of the effective date of Part 510 will disrupt or impair any function of NHTSA.

For the foregoing reasons, we therefore petition that the effective date of final rule, Part 510, be postponed until 30 days following NHTSA's response to a petition for reconsideration filed by MVMA, and that time for filing a petition for reconsideration be extended to August 1, 1980.

Finally, we respectfully request that NHTSA inform MVMA promptly of the disposition of this petition.

William H. Crabtree Vice President and General Counsel