[00:00:05] Speaker 04:
Center for Auto Safety Petitioners.

[00:00:08] Speaker 04:
Ms.

[00:00:08] Speaker 04:
Meyer for the petitioners, Mrs. Breckie for the respondent.

[00:00:21] Speaker 04:
Good morning, Your Honors.

[00:00:26] Speaker 04:
In this case, petitioners seek a writ of mandamus to compel the Department of Transportation

[00:00:33] Speaker 04:
to initiate and complete the rulemaking for a rear seatbelt warning system as required by Congress in June of 2012.

[00:00:41] Speaker 04:
The statute that was enacted by Congress in 2012 states that the agency shall initiate this rulemaking proceeding no later than two years after the effective date of the statute, which was October 1st, 2012.

[00:01:00] Speaker 04:
And therefore, the agency was required by Congress to publish a proposed rule.

[00:01:06] Speaker 04:
by October 1st, 2014.

[00:01:09] Speaker 01:
Can I ask you a question over that?

[00:01:12] Speaker 01:
As I know you're familiar, I'm having difficulty figuring out what initiate rulemaking means as compared to publish a notice of proposed rulemaking as compared to what the government thinks do a study.

[00:01:28] Speaker 01:
And it seems to me that in the same act,

[00:01:33] Speaker 01:
Sort of on the next page, at least on my printout, is the child restraint safety ratings program, which both orders the Secretary of Transportation to issue a notice of proposed rulemaking as compared to what was done in this section, which was to initiate rulemaking, and also tells the Secretary of Transportation to initiate and complete a study, which it didn't say in this case.

[00:02:01] Speaker 01:
On the one hand, I have the government saying initiating a study is enough, and yet we have a statute where Congress said what it meant when it meant to initiate a study.

[00:02:09] Speaker 01:
On the other hand, we have you saying it means issue a notice of proposed rulemaking, when on the next page Congress said that.

[00:02:15] Speaker 01:
Is there something between these two?

[00:02:18] Speaker 01:
I mean, if initiating a proposed rulemaking is not the same as publishing an NPRM, what else could it be?

[00:02:32] Speaker 04:
Initiating rulemaking is, under the Administrative Procedure Act, defined as the rulemaking process which begins with the notice of a proposed rule.

[00:02:43] Speaker 01:
So why didn't they just say that then?

[00:02:46] Speaker 04:
They chose to use the term initiate rulemaking.

[00:02:50] Speaker 04:
Again, those are terms of art.

[00:02:53] Speaker 04:
In the Perez case, the Supreme Court explained

[00:02:56] Speaker 01:
that you think they just got tired of using those words.

[00:03:01] Speaker 01:
I don't have an answer to that.

[00:03:04] Speaker 01:
I was hoping you might have some answer.

[00:03:05] Speaker 01:
On the very next page they use the words you would want.

[00:03:11] Speaker 04:
And I guess in terms of was there a middle ground, of course, an advanced notice of proposed rulemaking would be a middle ground to answer your question.

[00:03:20] Speaker 04:
And that sometimes does initiate rulemaking.

[00:03:23] Speaker 04:
But certainly what's being proposed.

[00:03:25] Speaker 01:
Well, that's a good answer.

[00:03:26] Speaker 04:
Maybe that is the answer.

[00:03:28] Speaker 04:
I will tell you this.

[00:03:30] Speaker 04:
The proposal for a study, which is what the government is relying on, certainly is not

[00:03:35] Speaker 04:
the initiation of rulemaking, and that Federal Register notice that they rely on for the proposed study doesn't comport with any of the requirements of initiating rulemaking as defined by the Administrative Procedure Act.

[00:03:53] Speaker 04:
And in fact, we don't even know if that study was ever initiated or even approved by OMB or what the status of it is, but in any event,

[00:04:00] Speaker 04:
proposing a study certainly falls out of the category of what constitutes initiating rulemaking.

[00:04:08] Speaker 02:
Do you really mean that?

[00:04:09] Speaker 02:
I would have thought, had they done a study and then an NPRM or an advance notice of proposed rulemaking, one or the other, and actually sort of move the ball forward in steps, as long as they eventually got to a final rule

[00:04:23] Speaker 02:
were in a position to have a final rule by 2015, you wouldn't have complaints about them having done a study to inform the notice of proposed rulemaking as part of initiating rulemaking, would you?

[00:04:35] Speaker 04:
We would have a problem if they had not actually issued a proposed rule.

[00:04:39] Speaker 02:
No, no, no.

[00:04:39] Speaker 02:
That's not my question, though.

[00:04:40] Speaker 02:
You just said a study can't be part of initiating a rulemaking, and that doesn't seem right.

[00:04:45] Speaker 02:
I don't believe.

[00:04:46] Speaker 02:
It seems to me what's driven here is there's a deadline for a final rule.

[00:04:49] Speaker 02:
And so whatever they did, whatever they were doing to initiate rulemaking had to be steps that would lead to a final rule by 2015.

[00:04:58] Speaker 04:
I suppose there might be a circumstance where the notice of proposed rulemaking could say,

[00:05:03] Speaker 04:
Here's the proposed rule as part of the rulemaking record.

[00:05:08] Speaker 04:
We're going to do a study.

[00:05:10] Speaker 04:
In that situation, that might satisfy the requirement.

[00:05:15] Speaker 04:
But our position is that Congress demanded that they initiate rulemaking to promulgate a standard for the rear seatbelt reminder with no later than two years after enactment of the statute.

[00:05:30] Speaker 04:
which they haven't done.

[00:05:31] Speaker 04:
Those two years are long gone.

[00:05:32] Speaker 04:
And to complete the rulemaking within three years, no later than three years after the statute was enacted, unless they gave certain reports to Congress, which didn't happen.

[00:05:43] Speaker 04:
So that hasn't been done.

[00:05:44] Speaker 02:
Did you file the petition for rulemaking with the agency or initiated any proceeding before the agency?

[00:05:50] Speaker 04:
My clients didn't, Your Honor, but several other organizations did file a petition.

[00:05:55] Speaker 02:
Who and when?

[00:05:57] Speaker 04:
Public Citizen and Advocates for Highway Safety.

[00:06:04] Speaker 04:
When?

[00:06:06] Speaker 02:
Is that before or after the Moving Forward Act?

[00:06:08] Speaker 02:
I think Public Citizen did one in 2007.

[00:06:10] Speaker 04:
I think it was before the statute was passed, yes.

[00:06:13] Speaker 02:
Okay, so none of the petitioners here has done anything to initiate it, and there's no pending proceeding in any way, shape, or form.

[00:06:22] Speaker 02:
That's correct.

[00:06:23] Speaker 04:
That's correct.

[00:06:24] Speaker 02:
So how do we have

[00:06:26] Speaker 02:
What jurisdiction are we protecting?

[00:06:28] Speaker 02:
There's no case that exists yet for us to protect.

[00:06:34] Speaker 02:
There's no agency proceeding.

[00:06:35] Speaker 02:
There's nothing going on.

[00:06:36] Speaker 04:
No, exactly.

[00:06:38] Speaker 04:
And that's why we seek a writ of mandamus for the court to require the agency to get on with the rulemaking that Congress mandated

[00:06:47] Speaker 04:
in 2012.

[00:06:49] Speaker 04:
Congress said in 2012, we want the standard.

[00:06:52] Speaker 02:
No, I get that.

[00:06:52] Speaker 02:
And so that's the case.

[00:06:54] Speaker 02:
We said, even in an FCC case where somebody was alleging delay in rulemaking, that there has to be something pending before the agency or district court for us to have jurisdiction to issue a writ of mandamus.

[00:07:09] Speaker 02:
In retenant, we said that.

[00:07:12] Speaker 04:
Well, what's before the court is the congressional mandate here that we're asking the court to enforce.

[00:07:18] Speaker 04:
And that mandate, again, required the agency to initiate rulemaking no later than two years after enactment of the statute and to complete that rulemaking no later than three years after enactment of the statute.

[00:07:31] Speaker 04:
And neither one has occurred.

[00:07:33] Speaker 04:
And therefore, particularly because all of the track factors, which

[00:07:39] Speaker 04:
are used to decide whether or not the agency has committed unreasonable delay within the meaning of the Administrative Procedure Act apply here.

[00:07:48] Speaker 02:
If they were to decide, I know they didn't hear, if they were to decide that we can't do this, you know, the language from Congress is not consistent with the standards of the Motor Vehicle Safety Act, and they were to send the letter

[00:08:01] Speaker 02:
to Congress saying that.

[00:08:03] Speaker 02:
Would that be a reviewable final agency action, the determination that they can't do it and they would send the letters to Congress?

[00:08:09] Speaker 04:
I think it would be, Your Honor, because they'd have to, the statute requires them to initiate a proposed rule.

[00:08:17] Speaker 04:
The escape valve for not actually issuing a standard because it doesn't take into account the factors that apply to all motor vehicle safety standards applies to

[00:08:29] Speaker 04:
a final rule, and therefore we will have a proposed rule, we will have some kind of a record.

[00:08:35] Speaker 04:
The agency will then make that decision, and I think if the agency decides that it can't, as a final matter, that it cannot issue the standard that

[00:08:43] Speaker 04:
that is required here because it doesn't meet certain requirements of the motor vehicle safety act.

[00:08:48] Speaker 04:
That would certainly be a review.

[00:08:49] Speaker 02:
Where would that final agency action be reviewed?

[00:08:51] Speaker 02:
District court or here?

[00:08:53] Speaker 04:
I think here.

[00:08:53] Speaker 02:
How do you reconcile that with public citizen which said a decision to decline a petition for rulemaking would be reviewable in district court?

[00:09:02] Speaker 04:
I think it's because final standards that are safety standards.

[00:09:07] Speaker 02:
That's what was going on in public citizen.

[00:09:09] Speaker 02:
They declined to do a rulemaking

[00:09:12] Speaker 02:
on a public safety standard of transportation, obviously public citizen case.

[00:09:18] Speaker 02:
And we said as to that decision that we can't, they would not engage in rulemaking.

[00:09:23] Speaker 02:
That got reviewed at district court.

[00:09:25] Speaker 02:
All this court reviews is the safety standard once it issues.

[00:09:31] Speaker 04:
I don't know, Your Honor.

[00:09:31] Speaker 04:
Perhaps it would be reviewed in the district court.

[00:09:34] Speaker 02:
It certainly would be reviewable.

[00:09:35] Speaker 02:
How would we have mandamus jurisdiction if one of the options

[00:09:39] Speaker 02:
for the secretary here were to take a measure that would only be reviewable in district court, not here.

[00:09:46] Speaker 02:
How would we then be aiding our jurisdiction?

[00:09:48] Speaker 02:
Because there's just as much chance that there's nothing that would ever come here.

[00:09:52] Speaker 04:
Well, you certainly have jurisdiction to order the agency to commence the rulemaking.

[00:10:00] Speaker 04:
There are two separate sections.

[00:10:02] Speaker 02:
I think that's what I'm asking is, in the FCC cases, whether the agency makes a rule or decides not to make a rule, it's coming here.

[00:10:10] Speaker 02:
And so we have mandamus jurisdiction in track.

[00:10:15] Speaker 02:
But this is different.

[00:10:16] Speaker 02:
This is an odd statute where, if they do one thing, issue a safety standard, that comes up to us.

[00:10:22] Speaker 02:
Anything else they do seems to go to district court first.

[00:10:28] Speaker 02:
And so I haven't seen a case that has a sort of split jurisdiction where we've concluded that we have authority to issue a writ of mandamus in aid of our potentially partial jurisdiction.

[00:10:43] Speaker 04:
Well, I haven't either, Your Honor, but it seems to me there should be no question that you have jurisdiction at an absolute minimum to compel the agency to initiate the rulemaking.

[00:10:55] Speaker 04:
Because the second step that you're talking about, which is what if the rulemaking record then doesn't support a final rule that comes after the command that they have to initiate the rulemaking?

[00:11:11] Speaker 04:
Again, because all final standards are reviewed by this court, this court is the proper quarter.

[00:11:17] Speaker 00:
I think our jurisdiction to review, our jurisdiction to take up a matter of whether we can compel the agency to initiate the process in the way that you want.

[00:11:27] Speaker 00:
Depends on that being an aid of our jurisdiction ultimately to review the final rule, right?

[00:11:33] Speaker 00:
Right.

[00:11:33] Speaker 00:
Yes So it necessarily at the end of the day we have to address whether what we're doing is an aid of that ultimate jurisdiction And I guess it is a little bit.

[00:11:43] Speaker 00:
It's interesting that It's an aid of jurisdiction that we might have it's also

[00:11:49] Speaker 00:
It's also a jurisdiction that we might not have, depending on which route the agency ultimately takes.

[00:11:54] Speaker 00:
Right.

[00:11:54] Speaker 04:
Well, of course, our position is there has to be a rule, and there will be a rule, and the rulemaking record that will be developed after the agency issues the proposed rule that is required by the statute

[00:12:07] Speaker 00:
will well support... Right, so your position is that we definitely have jurisdiction if a final rule was issued.

[00:12:14] Speaker 00:
Yes.

[00:12:15] Speaker 00:
As long as there's that possibility, that's enough to track back and get us to... Correct.

[00:12:20] Speaker 00:
...authority on the initiation.

[00:12:21] Speaker 00:
Can I ask something about this?

[00:12:22] Speaker 00:
So, the dynamic between the final rule and the initiation of rulemaking.

[00:12:27] Speaker 00:
So, the statute definitely says that there are circumstances in which the agency doesn't have to issue a final rule.

[00:12:33] Speaker 00:
does not have to issue a final rule.

[00:12:36] Speaker 00:
And there's certain things that have to happen for that to come about, but that at least exists, that possibility that no final rule will be issued, even though the statute contemplates a timeline by which a final rule would be issued.

[00:12:49] Speaker 00:
If there are circumstances in which the statute of its own force says a final rule need not be issued, why doesn't that track back to the initiation of rulemaking also?

[00:13:01] Speaker 00:
Because it seems a little bit odd to say,

[00:13:04] Speaker 00:
you have to initiate rulemaking even if you're never going to issue a final rule?

[00:13:11] Speaker 04:
Well, the circumstances under which they don't have to ever issue a final rule is only if it doesn't meet the requirements that apply to all motor vehicle safety standards under the Motor Vehicle Safety Act.

[00:13:25] Speaker 04:
And those standards are whether or not it's reasonable, practicable, things like that.

[00:13:31] Speaker 04:
Our position is we're going to have no trouble demonstrating those in the rulemaking record.

[00:13:37] Speaker 04:
The rulemaking record will show once we get on with the rulemaking that's been required, and it's way overdue, that this rule is practical.

[00:13:47] Speaker 04:
It's reasonable.

[00:13:47] Speaker 04:
It's already in place in European cars and Australian cars.

[00:13:51] Speaker 04:
We're not going to have trouble, we don't believe, showing that a final rule is consistent with these considerations that have to be taken into account.

[00:14:01] Speaker 04:
And therefore, there's not going to be any problem with this court having jurisdiction to review if someone wants to challenge that final standard.

[00:14:12] Speaker 00:
But there wouldn't be a final standard to be challenged if the agency concludes that those considerations mean that they're not going to adopt a final rule.

[00:14:22] Speaker 04:
Right, and then we would be suing the agency for failing to issue the final rule based on the rulemaking record that we believe we'll be able to develop once we get on with the rulemaking that was required by the statute.

[00:14:38] Speaker 00:
Okay, so your position is that at least that, the statute requires that that process begin even if the agency, I'm just hypothesizing, even if the agency

[00:14:50] Speaker 00:
by hypothesis thinks it's very, very likely that no final rule is going to issue because it concludes that these considerations are not going to be met.

[00:14:58] Speaker 04:
Right.

[00:14:58] Speaker 04:
I mean, it's always going to be true in a situation where an agency is required to conduct a rulemaking proceeding that at the end of the process, they may decide there shouldn't be a rule.

[00:15:11] Speaker 04:
And I don't think that necessarily dictates whether or not this court has jurisdiction over a petition for mandamus when it's clear and track makes clear that if a final rule issued by that agency would be reviewed by this court, then this court is the proper court to decide a petition for mandamus.

[00:15:31] Speaker 04:
And that's where we are.

[00:15:33] Speaker 04:
That's exactly where we are now.

[00:15:36] Speaker 04:
In fact, we actually originally filed this case in district court

[00:15:39] Speaker 04:
Justice Department called us up and said, you're in the wrong court.

[00:15:42] Speaker 04:
So we looked at it and we agreed with them and we came to this court.

[00:15:46] Speaker 02:
But in any event, your theory is you essentially get mandamus to make them either a fish or cut bait.

[00:15:53] Speaker 02:
Is that right?

[00:15:54] Speaker 02:
Either do the rule or say you can't with the processes that the statute prescribes.

[00:15:59] Speaker 02:
But you're supposed to have done something in these intervening years.

[00:16:03] Speaker 04:
Our position, Your Honor, is we're certainly entitled to, at an absolute minimum, mandamus to get a proposed rule.

[00:16:10] Speaker 04:
And that's going to start the process.

[00:16:13] Speaker 04:
And once we've got the process started,

[00:16:16] Speaker 04:
we believe everything's going to fall into place and there will be a final rule because these considerations.

[00:16:22] Speaker 02:
What in the statute requires them to do a proposed rule as opposed to study this matter and either do a proposed rule or send the letters off to Congress saying we can't?

[00:16:33] Speaker 04:
That's not how the statute's written.

[00:16:35] Speaker 04:
The statute says that the agency shall, not later than two years after the date of the enactment of the act, shall initiate a rulemaking proceeding to amend the standard.

[00:16:47] Speaker 04:
You don't amend the standard with a study.

[00:16:48] Speaker 04:
You amend the standard with a proposed rule.

[00:16:51] Speaker 02:
I'm talking about a study.

[00:16:52] Speaker 02:
I'm saying they start in this process, start trying to draft up an NPRM and say, we can't do it.

[00:16:56] Speaker 02:
It's not consistent with the Vehicle Safety Act.

[00:16:59] Speaker 02:
Sorry, Congress.

[00:17:00] Speaker 02:
You're going to have to amend the law for this to happen.

[00:17:02] Speaker 04:
Well, I'll have to go to Congress then and get an amendment to the statute.

[00:17:05] Speaker 04:
But right now, the statute requires them to initiate the rulemaking.

[00:17:09] Speaker 04:
And it required them to do that many years ago.

[00:17:12] Speaker 04:
And they haven't done it.

[00:17:13] Speaker 04:
And therefore, they should be compelled to do so, particularly when

[00:17:17] Speaker 04:
the health and safety of the public and particularly children who are the ones who sit in the back seats of these cars and need to be protected, their lives are at risk.

[00:17:28] Speaker 01:
I take it that you read the report provision as only applying to a final rule.

[00:17:36] Speaker 01:
That is, first there has to be initiation of rulemaking proceeding.

[00:17:40] Speaker 01:
And then, if at the end of the rulemaking proceeding,

[00:17:44] Speaker 01:
the agency has two choices.

[00:17:46] Speaker 01:
It can either issue the final rule or do the report.

[00:17:50] Speaker 01:
But it can't do the report before it does.

[00:17:52] Speaker 04:
Correct.

[00:17:53] Speaker 04:
Yes.

[00:17:54] Speaker 04:
These are separated out in two separate sections.

[00:17:56] Speaker 04:
One is called initiation of rulemaking proceeding.

[00:17:59] Speaker 04:
And that's where the issue, initiate the rulemaking can be found.

[00:18:03] Speaker 04:
And then there's a second subpart B, which addresses the final rule.

[00:18:07] Speaker 04:
And it says, except as provided under paragraph two,

[00:18:11] Speaker 04:
The secretary shall issue a final rule no later than three years after the date of enactment of the act, which they haven't done.

[00:18:19] Speaker 04:
And then the next provision explains that they can.

[00:18:22] Speaker 04:
if they determine at that point in time that it doesn't meet the requirements of the Motor Vehicle Safety Act, they can send that report to Congress.

[00:18:29] Speaker 04:
None of which has happened, by the way, with these timeframes.

[00:18:33] Speaker 00:
I don't disagree with you that that's the way the statute reads.

[00:18:35] Speaker 00:
I mean, you're obviously quoting the statute verbatim, and you're doing it accurately.

[00:18:40] Speaker 00:
But my question is, why does it

[00:18:44] Speaker 00:
Maybe this universe of possibility just doesn't exist, and if not, you can explain to me why.

[00:18:49] Speaker 00:
But if Congress already set out that the agency could submit a report to Congress in connection with the final rule that explains the reasons that a final rule is not going to be issued because the statutory standards, the statutory predicates for regulating in this area aren't met,

[00:19:07] Speaker 00:
then why does it make sense to think that that couldn't also be the case with respect to starting the rulemaking process altogether?

[00:19:15] Speaker 00:
If the agency had concluded ex ante, we've looked forward.

[00:19:19] Speaker 00:
We're already seeing that this just can't happen because those conditions aren't going to be satisfied, and therefore it would be a waste of time to initiate the rulemaking process at all.

[00:19:27] Speaker 04:
Because, Your Honor, that's what the entire rulemaking process is for.

[00:19:30] Speaker 04:
Rulemaking process is meant to collect the data, get public comment,

[00:19:37] Speaker 04:
and inform the agency about what kind of a standard there should be and how it comports with these requirements that apply generally to all motor vehicle standards.

[00:19:51] Speaker 04:
So you can't prejudge that before you have the rulemaking record.

[00:19:55] Speaker 04:
And therefore, it makes perfect sense the way it was written that after you've completed the rulemaking, if in fact

[00:20:03] Speaker 04:
The agency does not believe that it comports with the requirements of the Motor Vehicle Safety Act.

[00:20:09] Speaker 04:
It should submit a report to Congress.

[00:20:11] Speaker 04:
And maybe the reason for that is so that Congress can take whatever further action it needs to make sure this standard goes into place, having decided that it is an important standard that is needed to save the lives of many people and, in particular, children.

[00:20:28] Speaker 04:
My time is running out.

[00:20:30] Speaker 01:
I have one more question.

[00:20:31] Speaker 01:
OK.

[00:20:32] Speaker 01:
On the provision with respect to final rules that permits the agency to send a letter to the committee and an explanation for why the final rule deadline can't be submitted, can't be met, and to establish a new deadline for that rule.

[00:20:54] Speaker 01:
I appreciate you don't think that's yet been done.

[00:20:56] Speaker 04:
You're right.

[00:20:57] Speaker 04:
I'm sorry.

[00:20:57] Speaker 04:
You're talking about Section 31505 now?

[00:21:00] Speaker 04:
Yes.

[00:21:01] Speaker 04:
Okay.

[00:21:02] Speaker 01:
the new deadline, the title being new deadline.

[00:21:05] Speaker 01:
Yes.

[00:21:06] Speaker 01:
I appreciate you don't think they've done that yet.

[00:21:09] Speaker 01:
If while we were speaking the secretary were to

[00:21:16] Speaker 01:
write a letter to the chairman of the committees saying, decided to delay the time, give some reason, and we're going to delay it for 10 years.

[00:21:28] Speaker 01:
Would that, would you still be entitled to mandamus?

[00:21:32] Speaker 04:
Yes, two reasons.

[00:21:34] Speaker 04:
Number one, because

[00:21:36] Speaker 04:
The time for doing this has already passed.

[00:21:39] Speaker 04:
They're already in violation of this provision.

[00:21:42] Speaker 04:
This provision says if the Secretary determines that a deadline cannot be met, it shall explain to Congress, et cetera.

[00:21:54] Speaker 04:
That means cannot be met.

[00:21:55] Speaker 04:
It's already passed.

[00:21:57] Speaker 01:
Well, on your unreasonable delay, now they're not delaying anymore.

[00:22:02] Speaker 01:
They've now done what's said.

[00:22:05] Speaker 01:
On your theory, we could compel them to issue a final rule today?

[00:22:08] Speaker 01:
Is that your theory?

[00:22:09] Speaker 04:
No, I don't think you could compel them to issue a final rule today.

[00:22:11] Speaker 04:
But I think you could certainly.

[00:22:13] Speaker 04:
This goes to my second answer, Your Honor.

[00:22:16] Speaker 04:
Because this provision only gives them an extra time to issue a final rule, it doesn't apply to their

[00:22:24] Speaker 04:
independent obligation under the statute to initiate rulemaking with the proposed rule.

[00:22:29] Speaker 01:
I'm not asking about that.

[00:22:32] Speaker 01:
You ask for two things.

[00:22:33] Speaker 01:
Yes.

[00:22:33] Speaker 01:
You ask for a command that they issue a notice of proposed rulemaking and a command that they issue a final rule one year later.

[00:22:41] Speaker 01:
Yes.

[00:22:42] Speaker 01:
If they, albeit belatedly,

[00:22:48] Speaker 01:
Yeah, send the necessary correspondence to Congress for delay of the final rule.

[00:22:53] Speaker 01:
Do you think we have the power to nonetheless compel them to issue that rule earlier than they say?

[00:23:01] Speaker 04:
Well, you certainly would have the power to make them

[00:23:04] Speaker 04:
initiate the rulemaking.

[00:23:06] Speaker 04:
I'm intentionally not asking that question.

[00:23:07] Speaker 04:
Okay, I just want to make sure we understand that.

[00:23:09] Speaker 04:
We understand that.

[00:23:11] Speaker 04:
Yes.

[00:23:11] Speaker 01:
If they've initiated the rulemaking and then... No, even if they haven't initiated the rulemaking.

[00:23:15] Speaker 04:
Well, then I don't think this provision applies if they haven't initiated the rulemaking.

[00:23:20] Speaker 01:
Why is that?

[00:23:20] Speaker 04:
Because it only applies to the final... It only gives them an opportunity to get a new date for the issuance of the final rule.

[00:23:27] Speaker 01:
But it doesn't say that that date has to be after

[00:23:33] Speaker 01:
the initiation of the rulemaking.

[00:23:36] Speaker 01:
So unlike your reading that you and I followed together with respect to when the report could be issued, this doesn't fit in that same timeline.

[00:23:47] Speaker 01:
It doesn't tell us what the timeline is at all.

[00:23:51] Speaker 01:
That is, there's nothing that says after

[00:23:55] Speaker 01:
rulemaking has been initiated, then they can delay the final rule.

[00:24:00] Speaker 01:
It just says, stand alone, that if the secretary determines that any deadline for issuing a final rule cannot be met, the secretary shall provide the committee with an explanation and establish a new deadline.

[00:24:14] Speaker 04:
Right.

[00:24:16] Speaker 04:
And I guess my answer to that is, one, we think because all the deadlines have already passed, they don't get to use this provision at all.

[00:24:24] Speaker 04:
But my second answer is,

[00:24:26] Speaker 04:
If they're allowed to use this provision to get an extension on the issuance of the final rule, they would still have to end up with a final rule.

[00:24:35] Speaker 04:
They just have to establish a new deadline for that rule.

[00:24:39] Speaker 04:
And could you order them to do that if enough time passed and we had more unreasonable lay?

[00:24:46] Speaker 04:
Yes, of course.

[00:24:50] Speaker 01:
Well, I guess I'm at, I mean, we have many cases where the agencies pass their deadlines.

[00:24:56] Speaker 01:
Yes.

[00:24:57] Speaker 01:
Right?

[00:24:58] Speaker 01:
And when that happens, sometimes we order them to do something, but it's later.

[00:25:01] Speaker 01:
Right.

[00:25:02] Speaker 01:
But you're telling me we actually don't even have the authority to order them to do something later because the deadline has already passed.

[00:25:09] Speaker 01:
That's the end of it.

[00:25:11] Speaker 01:
If we have the, I mean, you're telling me we have the authority to do that, why doesn't Congress have the authority to let them extend the deadline?

[00:25:18] Speaker 04:
It does have that authority, Your Honor, and it gave them that option, and it laid out how it should happen, and we believe when it should happen, and it didn't happen.

[00:25:28] Speaker 04:
Now, it's possible, I understand what you're saying, that you can read this as having no temporal limitation.

[00:25:35] Speaker 04:
I get that, Your Honor, and you know, my second answer,

[00:25:40] Speaker 04:
to your question is, if that's the way the court reads the statute, as long as the agency provides the information to Congress and gives them a new date, you know, we can see what that new date is.

[00:25:56] Speaker 04:
That does not get them out of their obligation to initiate rulemaking.

[00:26:00] Speaker 04:
And if the new date is something that they, again, as they've done in the past year,

[00:26:07] Speaker 04:
failed to meet, we could come back to the court and say, unreasonable delay.

[00:26:11] Speaker 01:
If it's ambiguous as to this temporal issue, do we have authority to issue mandamus?

[00:26:18] Speaker 04:
Again, Your Honor, yes.

[00:26:19] Speaker 04:
To me, it's very clear you can issue a writ of mandamus to order the agency to initiate the rulemaking, at an absolute minimum.

[00:26:29] Speaker 01:
I'm only talking about the second half of your question, final rule.

[00:26:35] Speaker 01:
Mendemus is supposed to be for violation of a clear duty.

[00:26:38] Speaker 01:
Yes.

[00:26:39] Speaker 01:
If the statute is ambiguous about when the deadline can be extended by the Secretary, do we have authority?

[00:26:45] Speaker 04:
Of course, we're talking about a hypothetical that hasn't occurred.

[00:26:48] Speaker 01:
I understand.

[00:26:48] Speaker 01:
Because they haven't done this.

[00:26:50] Speaker 04:
If they did this process, I agree that it would be more difficult for us to

[00:26:59] Speaker 04:
ask this court to issue a writ of mandamus to require the issuance of a final rule pursuant to the new date that they've given Congress.

[00:27:07] Speaker 04:
But I don't want to belabor the point too much, but I do believe even under those circumstances, we are entitled to a writ of mandamus for the initiation of the rulemaking, which we believe will then start the process.

[00:27:22] Speaker 04:
And we will end up with a rule or a decision that can be challenged

[00:27:27] Speaker 04:
as arbitrary and capricious than abuse of discretion because no role was issued.

[00:27:31] Speaker 01:
Thank you.

[00:27:58] Speaker 03:
Good morning, Your Honors.

[00:27:59] Speaker 03:
Carlene Zubricki on behalf of the Department of Justice.

[00:28:03] Speaker 03:
At this point, we think that this case is about the Department of Transportation's compliance with a reporting requirement to Congress.

[00:28:10] Speaker 03:
This statute is essentially set up.

[00:28:12] Speaker 03:
It requires the Department of Transportation to either make a rule or let Congress know if it's not, if it doesn't think that that rule meets the requirements.

[00:28:21] Speaker 03:
And it tells the department to do it in a certain time or to let Congress know if it needs additional time.

[00:28:29] Speaker 00:
It doesn't talk about the reporting requirement vis-a-vis the initiation of rulemaking, right?

[00:28:35] Speaker 00:
The way the Statute 31-503 is structured, that provision about initiation of rulemaking proceedings doesn't say anything about a report to Congress.

[00:28:44] Speaker 00:
And then there's a separate provision that deals with the final rule that talks about that.

[00:28:47] Speaker 00:
So with respect to this first question of whether there's been a lapse of the obligation to initiate rulemaking proceedings,

[00:28:57] Speaker 00:
Are you still meaning to say that the report to Congress satisfied the staff, too?

[00:29:01] Speaker 03:
We disagree with petitioners' understanding of what the sort of general instruction to initiate a rulemaking requirement actually means.

[00:29:10] Speaker 00:
Right, so you've got the argument that that's done because of a study, and we could talk about that, but what I'm wondering is,

[00:29:16] Speaker 00:
your argument about the report to Congress.

[00:29:18] Speaker 00:
And we also have an argument about whether that report to Congress actually satisfies the report to Congress provision.

[00:29:23] Speaker 00:
But even assuming both of those things away, are you saying that the report to Congress is actually an out for the initiation of rulemaking?

[00:29:31] Speaker 03:
I think so, Your Honor.

[00:29:31] Speaker 03:
I think in context, when you sort of look at the way the statute is set up, I mean, the end result of this process, as some of the questions earlier, I think, suggests is the end result is either going to be a rule

[00:29:42] Speaker 03:
or a report to Congress explaining that they don't think that the requirements of 3111 are met here.

[00:29:48] Speaker 03:
And we think it makes perfect sense.

[00:29:50] Speaker 01:
And do you think that could be done before initiating rulemaking?

[00:29:52] Speaker 01:
Is that what you're saying?

[00:29:53] Speaker 03:
I think it could be done certainly before issuing an NPRM.

[00:29:56] Speaker 03:
And why do you think that?

[00:30:01] Speaker 03:
Well, we think that this goes to the statutory interpretation question about what it means to initiate a rulemaking.

[00:30:09] Speaker 01:
No, but assume that issuing a study doesn't.

[00:30:12] Speaker 01:
I think that was the purpose of this set up, just to tease out what each argument is.

[00:30:18] Speaker 01:
Assume that the study is not initiating rulemaking.

[00:30:22] Speaker 01:
Do you think that the agency can simply send a letter to Congress saying, we've decided this doesn't fit the statute?

[00:30:30] Speaker 01:
and therefore we're not going to issue a final rule, and therefore we're not going to initiate rulemaking at all.

[00:30:34] Speaker 03:
I'm not sure if that would meet the statutory, the text of the statute here.

[00:30:38] Speaker 03:
What I will say is that nothing about this scheme suggests that there was any intention for anybody other than Congress to be sort of exercising oversight.

[00:30:46] Speaker 03:
If Congress felt that it needed more information from the agency at any point in time, it has many tools in its arsenal where it could get that information from the agency.

[00:30:54] Speaker 00:
We don't think that there's a... Well, suppose that the statute didn't have a final rule provision at all.

[00:31:00] Speaker 00:
And the only provision in the statute is the initiation of rulemaking proceedings.

[00:31:04] Speaker 00:
Then it's always going to be the case that Congress and the agency can talk to each other and work things out.

[00:31:09] Speaker 00:
That's definitely the backdrop against which all these cases are brought up.

[00:31:13] Speaker 00:
But if all that was at issue was a provision that's the 31503 just has an initiation of rulemaking proceedings, then it would be more difficult to come up and say,

[00:31:22] Speaker 00:
The statute, the way this is supposed to get worked out is between Congress and the agency to the entire exclusion of judicial involvement, right?

[00:31:31] Speaker 03:
I think that would be more difficult, yes.

[00:31:33] Speaker 03:
And we do think that it makes sense to read that initiator rulemaking proceeding, which we take to be a general instruction in the context of the whole scheme that Congress has set up here.

[00:31:45] Speaker 00:
And what other than for the initiation of rulemaking proceeding, if I'm just looking at that provision separately, you've got your argument that the study is initiation of rulemaking.

[00:31:56] Speaker 00:
What else do you have on that provision?

[00:31:58] Speaker 03:
I don't think that the argument is that a specific study is the thing that satisfies this requirement.

[00:32:04] Speaker 03:
The argument is that what Congress was telling the agency to do was get started on looking into this.

[00:32:09] Speaker 03:
And the agency undertook sort of a number of regulatory steps to get started.

[00:32:13] Speaker 03:
I mean, I direct the court not only to the fact that in other provisions in the statute, Congress uses much clearer language when it wants the agency to do a specific thing.

[00:32:22] Speaker 00:
I'd also direct the... I'm just trying to... Okay, so all of that, it sounds like all of what you're coming forward with has to do with

[00:32:31] Speaker 00:
satisfying the requirement to initiate rulemaking proceedings.

[00:32:35] Speaker 00:
It's all an argument that the steps that the agency has taken, in fact, constitute initiation of rulemaking proceedings.

[00:32:42] Speaker 00:
I just want to make sure I'm understanding the analytical framework of your argument.

[00:32:45] Speaker 00:
So that's where your argument is.

[00:32:47] Speaker 03:
Sure, that's that argument.

[00:32:49] Speaker 03:
I mean, stepping back more broadly, we also don't think that there's any indication that Congress intended this sort of a requirement to be something that gave private citizens the ability to come into court and enforce these particular deadlines.

[00:33:02] Speaker 03:
So we don't sort of

[00:33:03] Speaker 03:
You know, even setting aside the definition of the phrase initiator rulemaking, we don't think that this statutory scheme sets out the kinds of clear and indisputable... Is that different from lots of other statutory schemes that have had deadlines for actions on which mandamus was issued?

[00:33:18] Speaker 02:
What about, where did Congress say this one is different?

[00:33:21] Speaker 03:
Well, I think it's quite different that the outcomes of the rulemaking here are to go back and give a report to Congress.

[00:33:29] Speaker 02:
Well, that's more a question of whether the mandamus standard has been met.

[00:33:32] Speaker 02:
But I'm just asking, in the nature of the mandatory directive language and deadlines, there's nothing about that that's different than any cases, a lot of cases where Congress knows mandamus has been available when its standards have been met for noncompliance.

[00:33:47] Speaker 03:
I think the other thing I would direct the Court to is the provision in 31.505 expressly authorizing the Department of Transportation to extend this deadline.

[00:33:56] Speaker 03:
You know, I'm not aware of any case issuing mandamus when the agency is actually... Well, then when you say this deadline, which deadline are you talking about?

[00:34:04] Speaker 00:
Because 31.505 speaks in terms of, quote, deadline for issuing a final rule, quote.

[00:34:10] Speaker 00:
And there is a deadline for issuing a final rule, but it doesn't appear to be the same as the deadline for initiation of rulemaking proceedings.

[00:34:17] Speaker 03:
I mean, in context, we think that it sort of encompasses this whole rulemaking proceeding.

[00:34:21] Speaker 03:
We also do think that the agency has initiated a rulemaking proceeding here, so that deadline has been, that interim deadline has been satisfied.

[00:34:29] Speaker 03:
But in context, you know, it wouldn't make that much sense to have a scheme where

[00:34:35] Speaker 03:
this sort of intermediate step of the process was enforceable when the agency actually has the express authority to establish the deadline for the ultimate action that we're talking about.

[00:34:47] Speaker 03:
And that ultimate action is very likely, or you know, it could certainly possibly be a report back to Congress and not even a rule.

[00:34:55] Speaker 02:
I mean, it seems to me that- You said in your brief, you said some deadlines that were for June to just about a month from now.

[00:35:03] Speaker 02:
reporting an NPRM to the Secretary of Transportation, OMB, the end of July.

[00:35:11] Speaker 02:
Are those two deadlines still on track?

[00:35:13] Speaker 03:
Our information is that that's still the anticipated timeline.

[00:35:18] Speaker 03:
I want to be clear that that's not an absolute guarantee, but our current information that... Because you all have done this before with

[00:35:29] Speaker 02:
thing where you said, oh, we expect to get it here by this date, and then it never happens.

[00:35:34] Speaker 02:
Does this one seem more likely to happen than the ones in the past that haven't, or are you in sort of the same boat?

[00:35:39] Speaker 03:
All I can tell the court is that the most recent public filings, as recently as last week and a month ago in April, continue to maintain the same anticipated timelines that were set out in that October report.

[00:35:53] Speaker 03:
So that's where we are right now.

[00:35:56] Speaker 03:
Again, that's not a guarantee, but that is the current sort of information that we have.

[00:36:01] Speaker 00:
So I didn't understand your brief to be making an argument other than

[00:36:05] Speaker 00:
that the rulemaking proceeding in fact has been initiated because of the study related actions.

[00:36:10] Speaker 00:
I didn't, maybe I missed it, but I didn't understand your brief to be making the argument that because the statute provides for extending the deadline for a final rule by issuance of a letter slash report to Congress, that necessarily tracks back and also informs

[00:36:28] Speaker 00:
the initiation of rulemaking, and the same reporting obligation can result in an extension of the initiation of rulemaking deadline two.

[00:36:37] Speaker 00:
Did I miss that?

[00:36:39] Speaker 03:
I'm not sure we expressly framed the argument in those terms.

[00:36:42] Speaker 03:
I do think it makes sense to sort of read what sort of a mandamusable requirement here would be in the context of the whole statute.

[00:36:49] Speaker 03:
I would also direct the court just with respect to the statutory interpretation question.

[00:36:54] Speaker 03:
There are other provisions in the statute

[00:36:56] Speaker 03:
the safety act, I would direct the court to 49, 30, 128, or 49 USC 30, 128.

[00:37:04] Speaker 03:
There the court, the Congress says both that the agency shall initiate a rulemaking proceeding and that within that proceeding, it should issue a proposed rule at a certain time.

[00:37:18] Speaker 03:
So it uses both phrases separately.

[00:37:19] Speaker 03:
These are different.

[00:37:20] Speaker 01:
There's also a section that says it should initiate a study, and we don't have that in this one.

[00:37:26] Speaker 03:
Sure, and I think that the study here was initiated certainly as part of a rulemaking proceeding.

[00:37:32] Speaker 03:
It's a general phrase.

[00:37:33] Speaker 03:
Did that study ever happen?

[00:37:37] Speaker 03:
Yes.

[00:37:38] Speaker 03:
Certainly there were steps taken on the study.

[00:37:39] Speaker 03:
I believe that the agency got some information.

[00:37:41] Speaker 03:
I'm not sure all of the details of where that is now.

[00:37:43] Speaker 02:
The brief talks about they had this proposal to do the study, but never says it was actually executed.

[00:37:48] Speaker 03:
I don't believe it's been finalized, but I don't think that there's a public report from it.

[00:37:53] Speaker 03:
But the agency has been sort of taking steps in this area.

[00:37:57] Speaker 02:
But more generally, what petitioners seem to me to be arguing at this point is that... Well, I guess I wanted to back up then even further and ask about our jurisdiction to issue a writ of mandamus.

[00:38:08] Speaker 02:
Are there petitions for rulemaking on this issue pending?

[00:38:13] Speaker 02:
before the agency that you're aware of?

[00:38:17] Speaker 03:
I know that there's something that was filed in 2007 that the court alluded to, but I have not sort of focused on that aspect of this.

[00:38:25] Speaker 03:
We don't take this mandamus petition to be same.

[00:38:27] Speaker 02:
Well, that was long before the statute.

[00:38:29] Speaker 02:
Exactly.

[00:38:29] Speaker 02:
It wouldn't have been a petition to compel the action required for willmaking under this statute.

[00:38:34] Speaker 02:
So what, do we even have original jurisdiction to issue with a mandamus when there's no pending proceeding in district court or before the agency that would lead to our jurisdiction?

[00:38:46] Speaker 03:
I think the court may not have that jurisdiction.

[00:38:49] Speaker 01:
I mean, especially when you consider- Would you advise the other side that it had to be in this court as compared to the district court?

[00:38:54] Speaker 03:
I was not sort of involved.

[00:38:56] Speaker 03:
I'm not exactly sure what happened at that stage in the process.

[00:38:58] Speaker 01:
The other lawyer for the other side represented that the government called up and said the case belongs to the Court of Appeals.

[00:39:04] Speaker 03:
I can't speak to what happened at that stage.

[00:39:07] Speaker 01:
I'd be happy to.

[00:39:08] Speaker 01:
Can you find out and let us know the answer to that?

[00:39:12] Speaker 00:
Sure, sure.

[00:39:12] Speaker 00:
Also, your position, I think, is that

[00:39:16] Speaker 00:
The study, what you've done, what the agency has done in connection with the study, is the initiation of rulemaking proceedings, right?

[00:39:29] Speaker 03:
I think we have to, yes, that is one of our positions.

[00:39:31] Speaker 00:
I would also say... Then if that's true, there is something pending before the agency.

[00:39:35] Speaker 03:
Well, there's not something over which we think that this court would necessarily have jurisdiction.

[00:39:40] Speaker 03:
For instance, if the agency declines to issue a rule here and went back to notify Congress about that, I certainly don't think there's any clear indication that there would be jurisdiction to review that notification back to Congress.

[00:39:54] Speaker 03:
I'm not aware of that.

[00:39:56] Speaker 00:
No, I guess my question is, if there's a requirement that the predicate for our jurisdiction is that there has to be something active before the agency,

[00:40:05] Speaker 00:
to sort of trigger it.

[00:40:06] Speaker 00:
And one way to do that obviously would be a petition for rulemaking that would initiate a process.

[00:40:11] Speaker 00:
But your position is that there's been initiation of rulemaking, quote, initiation of rulemaking by virtue of the actions conducted by the study in connection with, by virtue of the actions taken by the agency in connection with the study.

[00:40:23] Speaker 00:
So there is something.

[00:40:25] Speaker 00:
Already there's something to grab onto.

[00:40:27] Speaker 03:
Sure, I mean, there is a proceeding.

[00:40:31] Speaker 03:
Again, I'm not sure how exactly that would square with kind of the protective jurisdiction down the road, given that the outcome of that could very well be just a report back to Congress.

[00:40:40] Speaker 02:
That wasn't a proceeding initiated by these parties that are invoking interest.

[00:40:44] Speaker 03:
Precisely.

[00:40:44] Speaker 03:
That's a proceeding initiated pursuant to a statute and not individual parties.

[00:40:50] Speaker 03:
You know, if I may, it seems to us that what petitioners are arguing at this point is that, primarily, that if the Department of Transportation's communications with Congress were somehow deficient, then the agency can be... Well, let me ask you about that.

[00:41:06] Speaker 01:
It's not clear to me that that's an appropriate reading of the statute.

[00:41:10] Speaker 01:
If you first begin by Congress ordering you to initiate rulemaking, and for example, we thought that was a notice of proposed rulemaking and not this study,

[00:41:20] Speaker 01:
And then in the end, the agency decides not to, normally it publishes its reasons, right?

[00:41:26] Speaker 01:
And there could then be a challenge to those reasons as arbitrary and capricious.

[00:41:30] Speaker 01:
You could, I appreciate it if, that if the Congress said, and the only consequence is a report.

[00:41:37] Speaker 01:
But you could just as well read the report provision as we want to know if you've decided not to do that, so give us notice.

[00:41:44] Speaker 01:
But we don't, by saying give us notice, mean to preclude the normal APA process of reviewing a claim of a refusal to regulate as arbitrary and capricious.

[00:41:57] Speaker 03:
Respectually, I think that it's not hugely normal for Congress to give this kind of an instruction.

[00:42:02] Speaker 01:
Actually, it's quite normal for Congress to order reports on how agencies are going forward with their mandates.

[00:42:09] Speaker 01:
This is not particularly unusual.

[00:42:12] Speaker 01:
Its placement in the middle of the statute is.

[00:42:16] Speaker 01:
But it's not unusual for Congress to want to know what happened to that rulemaking.

[00:42:22] Speaker 03:
Sure.

[00:42:23] Speaker 03:
I mean, we read the statute to suggest pretty strongly that Congress intended to exercise oversight of this.

[00:42:30] Speaker 01:
And I'll note that this is something where... Yes, oversight, but that's not inconsistent with APA, which Congress also passed and provides for judicial review.

[00:42:42] Speaker 01:
We often review either a refusal to petition to institute rulemaking after there's a petition or a refusal to actually issue the rule after there's been a notice of proposed rulemaking.

[00:42:59] Speaker 01:
We do those under the APA.

[00:43:02] Speaker 01:
The fact that Congress said, we want to know what you did and why you did it doesn't necessarily mean that it cuts off the normal roots of review.

[00:43:14] Speaker 01:
Do you have a case in which that says that that's the case?

[00:43:16] Speaker 03:
I don't have a directly on point case for that.

[00:43:20] Speaker 03:
I would direct the court to the Hodel case.

[00:43:22] Speaker 01:
That was an independent study.

[00:43:24] Speaker 01:
There was no demand for rulemaking to begin or anything like that.

[00:43:28] Speaker 01:
That was a request from, I think, California and they wanted to know to the Interior Department and they wanted to know what to answer, you know, if they're going to deny the request.

[00:43:37] Speaker 01:
That wasn't a demand by Congress that there be initiation of rulemaking.

[00:43:42] Speaker 03:
But I think that the basic principle that this is a statute that sets up a sort of back and forth to Congress with respect to both the final outcome and the timing suggests that this is an area where Congress is going back and forth with the agency about both the timing and the substance.

[00:43:57] Speaker 03:
And, you know, again, Congress has exercised oversight about the many requirements throughout the MAP 21 Act and the later FAST Act.

[00:44:05] Speaker 03:
You know, it's come up at hearings, it's come up at oversight hearings.

[00:44:08] Speaker 03:
We don't think that the statute suggests an intent for sort of individual plaintiffs to be able to come in and sort of have the one of the many requirements of their priority come in front of all of the many other requirements that were imposed in this same series of acts.

[00:44:25] Speaker 00:
So you've got this argument that this isn't a deadline that ought to be subject to judicial oversight at all.

[00:44:30] Speaker 00:
And then you've also got the argument that

[00:44:32] Speaker 00:
And I'm talking about the initiation of rulemaking.

[00:44:34] Speaker 00:
You've also got the argument that that's actually been satisfied by virtue of the actions taken in connection with the study.

[00:44:41] Speaker 00:
With respect to that, you attached to your brief these submissions to OIRA.

[00:44:48] Speaker 00:
I think if I'm reading that right, then for example on addendum two, there's an entry that says legal deadline, action NPRM, store statutory description, initiate date October 1, 2014.

[00:45:06] Speaker 00:
And that was a submission made by the agency.

[00:45:09] Speaker 00:
So it seems like at least the way the agency was conceiving of it with respect to that report is that

[00:45:16] Speaker 00:
the initiation deadline of October 1, 2014 is with respect to an NPRM.

[00:45:22] Speaker 03:
I don't think the court should read too much about sort of the details of the statutory interpretation into that, the sort of listing of the deadline.

[00:45:30] Speaker 00:
So that sounds like what you're saying is that whoever filled that out was just wrong, and that may be right.

[00:45:35] Speaker 03:
They were listing the deadline, and then they specified the deadlines that initiate.

[00:45:40] Speaker 03:
That's how I read that.

[00:45:42] Speaker 00:
I don't understand that.

[00:45:44] Speaker 00:
How do you read this other than that the action that needs to be taken by October 1, 2014 is initiate and that action is an NPRM?

[00:45:55] Speaker 00:
That might be wrong.

[00:45:56] Speaker 00:
I'm not saying that anyone's bound to that.

[00:45:59] Speaker 03:
Again, I would just not read too much into sort of the statutory interpretation based on the way that the agency filled out that particular document.

[00:46:10] Speaker 01:
Well, where do we read this statutory interpretation?

[00:46:13] Speaker 01:
Where do we read your interpretation?

[00:46:16] Speaker 01:
Where does your interpretation come from that it's a study?

[00:46:19] Speaker 03:
I think it comes from just a plain meaning of initiate a rulemaking proceeding.

[00:46:24] Speaker 01:
So it's not the view of the agency.

[00:46:25] Speaker 01:
It's the view of the agency's lawyers.

[00:46:28] Speaker 03:
I mean, I think that there are actually other, if I could, I believe that there's another one of similar documents in the appendix.

[00:46:34] Speaker 03:
And I'm forgetting exactly which page it is where you'll see it says initiate.

[00:46:38] Speaker 01:
Well, there is.

[00:46:38] Speaker 01:
And it's a Debt of Four.

[00:46:39] Speaker 01:
in some ways looks like a different position from previous two.

[00:46:43] Speaker 01:
So addendum one uses the language that Judge Finnebasen just pointed out.

[00:46:49] Speaker 01:
Under legal deadline, it issues NPRM October 1st, 2014.

[00:46:55] Speaker 01:
Then there's addendum two, which is in the fall of 2015.

[00:46:57] Speaker 01:
It again says legal deadline, initiate 2014.

[00:47:02] Speaker 01:
And both of them say this rulemaking would amend federal motor vehicle

[00:47:07] Speaker 01:
manufacturer of vehicle safety standard number 208, this rulemaking would respond, et cetera, suggesting that it hasn't done so yet.

[00:47:18] Speaker 01:
That is, there hasn't been a rulemaking yet and it hasn't been initiated yet.

[00:47:22] Speaker 01:
Same thing with addendum two.

[00:47:29] Speaker 01:
The first one that is changed, which says the rulemaking project was initiated in July 2012, that's not until October 2017.

[00:47:38] Speaker 01:
So is that a change in – that's, of course, a new administration entitled to a new interpretation.

[00:47:44] Speaker 01:
Is that a new – actually, it's not.

[00:47:47] Speaker 01:
I'm wrong.

[00:47:47] Speaker 01:
It's still – have they changed their position?

[00:47:53] Speaker 03:
I don't think there's been a change in position on any of this.

[00:47:57] Speaker 03:
I think over time, the deadline to, you know, the agency's understanding of its priorities and how quickly it was likely to be able to move on, this changed.

[00:48:04] Speaker 03:
And I think, you know, in 2015, the statute, this regulation was for the first time, they recognized that it would be economically significant.

[00:48:13] Speaker 03:
That's something that would require sort of extra levels of review and make it more complicated.

[00:48:17] Speaker 03:
And so the agency has sort of periodically pushed back its anticipated timeline.

[00:48:21] Speaker 03:
I'm not sure that there's been any kind of a sort of internal interpretation that these documents are supposed to be getting to about the initiator rulemaking.

[00:48:31] Speaker 03:
But we certainly don't think that that initiator rulemaking language was intended whatsoever to create a sort of judicially enforceable deadline for this intermediate step in a process that Congress has in fact exercised close oversight of.

[00:48:47] Speaker 01:
Can I ask you about your letter to the Congress that you're running?

[00:48:50] Speaker 01:
Sure.

[00:48:50] Speaker 01:
That's addendum five?

[00:48:52] Speaker 01:
Yes.

[00:48:53] Speaker 01:
And the place where the new deadlines are is addendum four, is that right?

[00:48:58] Speaker 02:
Yes.

[00:48:58] Speaker 01:
Okay.

[00:48:59] Speaker 01:
And where in the letter do you do what Congress requires, which is

[00:49:08] Speaker 01:
with respect to the deadline, which is to give an explanation for why the deadline cannot be met and establish a new deadline for the rule.

[00:49:16] Speaker 03:
Sure.

[00:49:16] Speaker 03:
So there's a link on page six.

[00:49:19] Speaker 03:
Yes.

[00:49:19] Speaker 03:
And that link goes to the regulatory agenda, which sets forth.

[00:49:23] Speaker 03:
And I don't believe the specific regulatory agenda is included in the addendum.

[00:49:27] Speaker 03:
But if you click the link in that letter, it goes to a document that lays out all of the many regulatory rule-makings that the agency is taking, the legal deadline.

[00:49:36] Speaker 01:
I actually followed the link.

[00:49:37] Speaker 01:
And it doesn't go to this page, so for the second part of the letter you're going to send us, including the question of how you advise the other side, could you say how you get from the link, which is the agenda, which is the unified agenda?

[00:49:56] Speaker 01:
to the Addendum 4, which is the report on significant DOT rulemakings.

[00:50:03] Speaker 01:
How would Congress know that the deadline has been extended?

[00:50:08] Speaker 01:
And the reason, which I take it, is additional coordination necessary.

[00:50:11] Speaker 03:
Sure, I'm happy to provide more on that, but I would just also note that this kind of formal letter is not the only interaction that Congress has with the agency on this very issue.

[00:50:23] Speaker 01:
Have you made a representation to us?

[00:50:24] Speaker 01:
Is it some other kind of notification?

[00:50:29] Speaker 03:
We haven't specified.

[00:50:31] Speaker 01:
The statute says, if you want to rely on this, the statute says the Secretary shall provide the Committee on Commerce, Science, and Transportation

[00:50:41] Speaker 01:
and this committee on energy and commerce with an explanation for why the deadline cannot be met and establish a new deadline.

[00:50:49] Speaker 01:
All I'm asking you is, when did you do that?

[00:50:54] Speaker 01:
You've only given us one thing, which is these letters, right?

[00:50:57] Speaker 01:
Yes.

[00:50:59] Speaker 01:
Are you telling us there's a telephone call that's not in the record, or what?

[00:51:07] Speaker 03:
My general point is that this is an issue where the timing has come up at multiple oversight hearings.

[00:51:13] Speaker 03:
Congress has asked the acting administrator of NHTSA and the Secretary of Transportation about the progress on these proceedings, including this very proceeding.

[00:51:21] Speaker 01:
OK, that may be sufficient.

[00:51:23] Speaker 01:
Can you give us a citation?

[00:51:25] Speaker 01:
or better yet, the pages of the transcript of those hearings before both the Committee on Commerce, Science, and Transportation of the Senate and the Committee on Energy and Commerce of the House of Representatives, where the new deadline has been told to the Committee

[00:51:41] Speaker 01:
and for an explanation for why.

[00:51:44] Speaker 01:
I'm not saying you didn't do that, but so far you haven't told us that you did.

[00:51:47] Speaker 03:
I'm happy to provide the crew with whatever exactly, whatever there is on this exactly.

[00:51:52] Speaker 00:
Can I just ask a technical question to follow up on Peter's problem?

[00:51:55] Speaker 00:
I thought that on addendum 6, the link, I thought that

[00:52:03] Speaker 00:
that your view was that the link does take you to what's on Addendum 4?

[00:52:06] Speaker 00:
I don't think that's exactly right.

[00:52:09] Speaker 00:
Okay.

[00:52:09] Speaker 00:
What do you mean by not exactly right?

[00:52:11] Speaker 03:
So the Addendum 4 is another public document on the website.

[00:52:15] Speaker 01:
Which you can't get to from that link.

[00:52:17] Speaker 01:
You can get to it if they told you to go to the website, but otherwise you can't get to it.

[00:52:22] Speaker 01:
At least I couldn't get to it.

[00:52:23] Speaker 01:
So if we're going to rely on it, and we're relying on it for proposition of the new deadline, you'll have to tell us how that's good enough.

[00:52:31] Speaker 01:
And if that's not good enough,

[00:52:33] Speaker 01:
how this discussion in a hearing is good enough.

[00:52:37] Speaker 03:
I'm happy to provide something further to the Court on that.

[00:52:40] Speaker 03:
I will just say more generally.

[00:52:41] Speaker 00:
I'm sorry, I just want to be precise on this.

[00:52:42] Speaker 03:
Of course.

[00:52:43] Speaker 00:
It's one thing to say that the link doesn't take you directly there, which evidently it doesn't.

[00:52:48] Speaker 00:
Right.

[00:52:48] Speaker 00:
Are you saying that you're not relying on the link ultimately getting you to addendum four at all?

[00:52:52] Speaker 03:
I don't think that the link takes you to Addendum 4.

[00:52:55] Speaker 03:
That's right.

[00:52:56] Speaker 03:
But Addendum 4 is another publicly available document.

[00:53:00] Speaker 03:
It's the regulatory, the significant rulemaking report that's issued by the agency.

[00:53:06] Speaker 03:
But again, I would just, I do want to go back to the idea that we don't think

[00:53:12] Speaker 03:
We think that if Congress is best positioned to supervise it, if Congress believes that there's a deficiency in the way that it's been.

[00:53:21] Speaker 02:
I'm sorry to interrupt with that, but if DOT were to decide that it can't do a rulemaking and were to send the statutorily required letters to Congress, so it would just make a final decision that we're not going to do a rulemaking and would send the letters to Congress,

[00:53:41] Speaker 02:
Where would that final decision, could that final decision be challenged and in which court?

[00:53:50] Speaker 03:
I'm not sure you're on.

[00:53:52] Speaker 02:
And when you say, you said a couple of times that you think the statute's meant to... I'm sorry, could you actually repeat that last question one more time?

[00:53:59] Speaker 02:
I think I may have misheard part of it.

[00:54:01] Speaker 02:
So imagine in the hypothetical world that we're at the point where the Secretary of Transportation says, looks at this, studies it and says,

[00:54:08] Speaker 02:
No can do.

[00:54:09] Speaker 02:
We can't do this type of regulation given the Motor Vehicle Safety Act requirements and standards.

[00:54:16] Speaker 02:
I'm going to comply with my obligation under the statute, send my letters to Congress explaining to them why federal law now doesn't allow us to do it, sort of put the ball back in their court.

[00:54:27] Speaker 03:
We do not think that anybody would have the ability to petition for review from that decision.

[00:54:32] Speaker 03:
We think that that would be a notification to Congress pursuant to a statute, and there's no basis for thinking that anybody intended for, you know, a private group to be able to come in and get review of that decision.

[00:54:43] Speaker 03:
It would rather be back in the hands of Congress to decide whether it thought that a further rule was necessary.

[00:54:48] Speaker 02:
Would that be a decision not to engage in rulemaking that would be reviewable under the APA?

[00:54:54] Speaker 03:
I don't believe so.

[00:54:56] Speaker 03:
I believe the way this scheme works is that ordinarily somebody who's aggrieved by a rulemaking standard can file a decision to promulgate a rulemaking standard, sorry, a safety standard can seek review.

[00:55:12] Speaker 03:
But I don't think that a letter to Congress would be final agency action in a normal sense.

[00:55:20] Speaker 02:
So even if the Secretary's explanations hypothetically were entirely fanciful,

[00:55:25] Speaker 02:
arbitrary and capricious in every word.

[00:55:30] Speaker 02:
And there would be no judicial, there'd be no ability for an aggrieved party like it's in ours to file

[00:55:38] Speaker 02:
a lawsuit challenging that final agency determination not to engage in rulemaking?

[00:55:43] Speaker 03:
We think that the agencies, or sorry, that kids in cars or private citizens recourse would be to go to Congress in that circumstance.

[00:55:50] Speaker 02:
Well, what we have here, or some other time to file a petition for... So this is a complete withdrawal from the APA, this whole process, this decisional process.

[00:55:58] Speaker 02:
We can't enforce the deadlines.

[00:56:00] Speaker 02:
No one can review your decision.

[00:56:02] Speaker 02:
Unless you actually issue a final rule,

[00:56:05] Speaker 02:
Nobody can do anything.

[00:56:07] Speaker 03:
I'm not sure it's a withdrawal from the APA.

[00:56:09] Speaker 03:
Again, an individual could file petitions, could sort of go through whatever the ordinary processes are.

[00:56:14] Speaker 02:
What on earth reason would they have to file a petition for rulemaking the day after you sent letters to Congress saying, no way, no how, notwithstanding your direction to us, Congress, that we can issue a rule?

[00:56:25] Speaker 02:
Surely.

[00:56:26] Speaker 02:
That wouldn't be required, would it?

[00:56:28] Speaker 03:
We just don't think that this statute provides a basis for private litigants to enforce anything.

[00:56:33] Speaker 03:
Instead, it suggests that this is a conversation both with respect to the timing and the substance between Congress and the agency.

[00:56:40] Speaker 03:
And we think that Congress is amply able to enforce any dissatisfaction it may have with the agency's compliance with the reporting requirements to Congress.

[00:56:50] Speaker 00:
Is that based on something particular about this statute vis-a-vis APA review?

[00:56:56] Speaker 00:
Because normally, why wouldn't the, if the agency submits a letter to Congress that says, you know what, I flipped a coin yesterday and it came up tails.

[00:57:04] Speaker 00:
If it came up heads, I would have initiated a final rule, but it came up tails and therefore I'm not.

[00:57:09] Speaker 00:
And it seems like the way you're reading the statute is to say, there's no APA review.

[00:57:14] Speaker 03:
Yes, I think that's the way we read the statute.

[00:57:17] Speaker 03:
This is something that Congress was asking the agency to get back to it on, and there's not really a role that's in the statute for private events.

[00:57:24] Speaker 00:
But it's enacted against the backdrop of the APA.

[00:57:27] Speaker 03:
I'm sorry.

[00:57:28] Speaker 00:
It's enacted against the backdrop of the APA.

[00:57:31] Speaker 03:
Sure, but I think it's committed.

[00:57:32] Speaker 03:
I'm not sure exactly what prong I would put it under, but I do think that this is something where

[00:57:37] Speaker 03:
There's just, this is not something that is anticipated to be the subject of.

[00:57:42] Speaker 01:
Do you think that's true of all directions by the Congress to initiate rulemaking?

[00:57:48] Speaker 01:
Every time Congress says, initiate a rulemaking on motor vehicle safety standards, and it doesn't say anything more, or issued by such and such data final rule,

[00:58:01] Speaker 01:
without the stuff about the reports in there.

[00:58:03] Speaker 01:
Do you think that is also just a back and forth between Congress and the agency and not reviewable?

[00:58:10] Speaker 03:
I guess I'd have to think about that a little bit more.

[00:58:12] Speaker 03:
I certainly think it's a much easier case here where the final thing that would come out of that initiation is a report to Congress or a rule.

[00:58:20] Speaker 01:
That depends on the reading of the statute.

[00:58:23] Speaker 01:
That's the only thing that's required as compared to what normally happens after

[00:58:28] Speaker 01:
an agency initiates rulemaking, decides not to go forward, it says so, and that can be reviewed.

[00:58:34] Speaker 01:
It's reviewed under a very weak standard, but it's still reviewed.

[00:58:38] Speaker 01:
So does this all depend on a reading of the statute that says the only resolution is a notice to Congress?

[00:58:47] Speaker 01:
Because those words are not in the statute, a report to Congress.

[00:58:57] Speaker 03:
I don't think we're saying that it depends.

[00:58:59] Speaker 03:
I mean, I think what our argument here is that this entire statutory scheme suggests, you know, just taking a step back here, we're talking about a statute that imposed dozens of rulemaking requirements.

[00:59:11] Speaker 01:
There are lots of statutes that impose dozens, and usually we don't say this is just a matter between Congress and the agency, because, by the way,

[00:59:20] Speaker 01:
that determines that a later Congress can overturn what an earlier Congress wanted done.

[00:59:28] Speaker 01:
So if the first Congress wants this kind of regulation and the second Congress, because of changes in the majority or whatever, decides it doesn't, your reading would mean that the second Congress can vitiate the results of a first Congress, which we normally say can't be done without a new statute.

[00:59:46] Speaker 01:
But you're saying that everything is up to whatever the Congress at the time decides to do with respect to enforcement.

[01:00:00] Speaker 03:
I don't think our argument is about congressional enforcement.

[01:00:05] Speaker 03:
It is about the congressional enforcement of the timelines here and an ultimate notification to Congress.

[01:00:10] Speaker 03:
I think the statute does also, we don't dispute, of course, that the statute does tell the agency that if this does meet all of the requirements of normal safety standards, applicable to normal safety standards, then it should issue the rule on a timeline, again, that the agency itself has the authority to extend

[01:00:31] Speaker 03:
And so I don't think this runs into precisely that type of problem, because the agency, if it meets all of the requirements of a safety standard, will, at the time determined by the secretary, issue a rule.

[01:00:46] Speaker 02:
I just had one small question.

[01:00:49] Speaker 02:
On your brief where you say that the NPRM is supposed to go to the Secretary on June 21st, is that, when it goes to the Secretary, will that be a matter of public record that we would be able to know about?

[01:01:06] Speaker 03:
I know that the next step, the July deadline when it goes to OMB, will be public.

[01:01:11] Speaker 03:
I am not completely sure whether the first step will be.

[01:01:18] Speaker 01:
Thank you, Your Honor.

[01:01:28] Speaker 04:
Just a few points in response to the government's argument.

[01:01:34] Speaker 04:
It's our position that it's very clear from this statute that Congress anticipated and wanted this agency to conduct a rulemaking proceeding with a notice of proposed rule and a final rule.

[01:01:46] Speaker 04:
And the agency itself understood this, as Judge Shreen Basin pointed out, in its own regulatory agenda documents, which it attached to its brief.

[01:01:56] Speaker 04:
It talks about those obligations compelled by this statute and gives dates for when the notice of proposed rulemaking

[01:02:04] Speaker 04:
was going to be published and when the final rule was going to be published.

[01:02:08] Speaker 04:
The idea that proposing a study would somehow satisfy those requirements simply just doesn't fly.

[01:02:16] Speaker 04:
And with respect to this study that has been proposed, I've been on the link that was provided by the government.

[01:02:23] Speaker 04:
Nothing's happened at all, as far as I could tell, since 2013.

[01:02:28] Speaker 04:
They sent the study, the request over to OMB.

[01:02:31] Speaker 04:
The proposal for the study doesn't even cite the statute we're talking about.

[01:02:35] Speaker 04:
It does not cite the rule we're talking about.

[01:02:39] Speaker 04:
It talks about just doing a study.

[01:02:42] Speaker 04:
And as far as I can tell, no study was ever done.

[01:02:45] Speaker 04:
No study was approved.

[01:02:46] Speaker 04:
There were a couple of comments in response to that Federal Register notice, and that's the end of it.

[01:02:51] Speaker 04:
Number three.

[01:02:55] Speaker 04:
the letters to Congress.

[01:02:56] Speaker 04:
Those letters to Congress that the agency is relying on, like the proposed study it's relying on, they don't address the statute we're talking about at all, they were sent pursuant to a different statute, they do not discuss this standard at all, and therefore they have, they do not satisfy any of the requirements of this statute.

[01:03:16] Speaker 04:
And the last thing I want to end with is, under the track factors, what's

[01:03:22] Speaker 04:
particularly egregious in this situation.

[01:03:24] Speaker 04:
We have all of the factors in our favor.

[01:03:26] Speaker 04:
The only thing the government ever came up with in its brief was it has competing priorities.

[01:03:32] Speaker 04:
At the same time, this agency since last October has been asking the public through a formal Federal Register notice to please send in the list of safety standards you would like us to rescind.

[01:03:46] Speaker 04:
That's what they're spending their time and resources on.

[01:03:50] Speaker 04:
at 82 Federal Register 45750 the October 2nd, 2017 Federal Register.

[01:03:56] Speaker 01:
I hate to end this on a downer for you, and maybe this won't be, but this is just a fact question that has terribly confused me.

[01:04:03] Speaker 01:
Okay.

[01:04:03] Speaker 01:
So in your brief you say that the consequences will be a thousand people die per year, a thousand deaths per year of not having this rule, or put it the other way, savings would be a thousand lives per year.

[01:04:18] Speaker 01:
Obama administrations.

[01:04:22] Speaker 01:
notice, which is in agenda two, said the proposed rule would result in 43.7 to 65.4 equivalent lives saved.

[01:04:32] Speaker 01:
I don't know, I've had a difficult time figuring out what equivalent lives means in these circumstances, but where do they get this and where do you get your 1,000?

[01:04:42] Speaker 01:
I'm not saying it makes a difference in the end, but it's just a fact.

[01:04:45] Speaker 04:
We saw this.

[01:04:47] Speaker 04:
The numbers that we cite are in our brief.

[01:04:49] Speaker 01:
I don't have the citations.

[01:04:50] Speaker 01:
But there isn't a citation in your briefing.

[01:04:52] Speaker 01:
Pardon me?

[01:04:53] Speaker 01:
There isn't a citation for 1,000 lives saved.

[01:04:55] Speaker 01:
That's the part I'm looking for.

[01:04:57] Speaker 01:
And there are citations for how it will save lives.

[01:05:00] Speaker 01:
There are citations for people don't use seat belts in the back, citations for percentages.

[01:05:06] Speaker 01:
I don't see the calculation.

[01:05:08] Speaker 01:
Is there some?

[01:05:09] Speaker 04:
I don't have that calculation citation for you right here, Your Honor.

[01:05:14] Speaker 04:
I'll look and try to give it to you.

[01:05:17] Speaker 04:
With respect to what the government has said, we're still talking about hundreds of lives that would have been saved had they met the deadline that was imposed on them, hundreds.

[01:05:27] Speaker 04:
And this number, second point, doesn't even talk about injuries at all.

[01:05:32] Speaker 04:
And we're also talking about serious injuries every single year that are suffered by people who sit in the back seat and aren't wearing their seat belts.

[01:05:41] Speaker 04:
And the third thing I'll say about this provision that you're looking at is there's a note here

[01:05:47] Speaker 04:
that says these are preliminary estimates, they have not been reviewed, and they could change.

[01:05:52] Speaker 04:
So it may be, could very well be higher.

[01:05:55] Speaker 04:
Again, it doesn't talk about injuries at all.

[01:05:57] Speaker 04:
So it's pretty clear that Congress believed that there was a problem here that needed to be resolved, that people were dying in the backseat because they didn't have their seatbelts on, principally children, and that this standard would solve or substantially reduce that problem.

[01:06:17] Speaker 04:
admits it itself, admits that, you know, in the Federal Register notice about the study, if they're relying on it.

[01:06:24] Speaker 01:
I didn't mean to make you go on with this.

[01:06:25] Speaker 01:
If you look at that, they also.

[01:06:26] Speaker 01:
I'm just trying to reconcile the numbers.

[01:06:28] Speaker 01:
Okay, right.

[01:06:29] Speaker 04:
If I can find that citation, I'll send it in to you.

[01:06:33] Speaker 01:
And the government, I think, has three things to send us, or is it two?

[01:06:38] Speaker 01:
There was where you discussed this with Congress.

[01:06:42] Speaker 01:
There was how you get through the link.

[01:06:46] Speaker 01:
Some idea that there was a third.

[01:06:48] Speaker 02:
The communications with counsel.

[01:06:50] Speaker 01:
Oh, yes, the communications with counsel.

[01:06:52] Speaker 04:
And can I just add the where they discussed it with Congress was never cited in their briefs.

[01:06:56] Speaker 01:
I understand.

[01:06:56] Speaker 04:
That's why I'm asking.

[01:06:57] Speaker 04:
We'd like an opportunity to respond to those as well.

[01:07:01] Speaker 01:
File a letter.

[01:07:02] Speaker 01:
Thank you.

[01:07:02] Speaker 01:
OK.

[01:07:03] Speaker 01:
We'll take the matter under submission.

[01:07:04] Speaker 01:
Thank you.