my name is michael tankersley and i represent the petitioners in this petition for review this petition concerns for a review of amendments to federal motor vehicle standard number two zero eight which is a performance standard that has the effect of requiring automotive manufacturers to install airbags in passenger vehicles congress the record the secretary of transportation to amend this standard and i'm quoting from the statute here to improve  in the federal register yes and no court has endorsed the position which the govern our views here which is all the decisions that you look at contemplate that the time will rule which would say even before publication or any casing before any other form of notice they would have the ability to set the date and an earlier time and that is not engineers case spring court case which describes the federal common law with respect to what the consequences of filing of a motion for reconsideration is on the time for seeking review of an agency order and agency actually opens up a prior whatever takes new evidence on it and reconsider even without amending at that starts a new time for petitioning for review of that order if you look at  eligible to file their petition for review from the dane this summer order not to say of the matter where the government's principal argument is that they want to create a new limitation which is not supported by any statute which would be that only parties who were to support it in the reconsideration proceedings would be permitted to file for review that is inconsistent with the language of the statute here which provides for any party nothing in any of the organic statutes for the secretary of transportation that authorizes him to issue regulations to govern the availability if you will review from various forwarders that regulation not because the department concluded it was a better rule but because their reading of the case law was that that was the rule the courts had adopted and they didn't want a misleading regulation on their book our view is that they can misread those those cases and indeed if you read them none of them articulate the rule that they adopted the correct rule is the one that exists to free nine hundred ninety five and there is nothing in terms model the protection for other groups covered by this rule and the third is that the technology to comply with the thirty mile per hour standard as opposed to a twenty five mile per hour standard for the  percentile males army already exist today and the government's arguments in the brief that this is the rule is based on the fact that the technology does not exist are not consistent with the agency reasoning and not consistent with the record before i get to those let me just briefly underscore why it is everybody is focused on this particular test for the unbelted fiftieth percentile medal dummy speed that we are fighting over here is much bigger than it appears on its face because in terms of the protectiveness in a crash it is not just a twenty percent increase in the speed it is the forty four percent increase in energy protection or the energy of the crash that has to be dissipated by the airbag or other protective measures in the vehicle so there is a significant difference in terms of the a with that in mind the first point that i want to make is most significant which is that there is no improvement in the protection for fiftieth percentile males by virtue of th vast majority of model year ninety ninety eight and ninety nine vehicles which were tested perform at a level that lance into past had a thirty mile per hour farrier test with an unbelted fift man and the secretary's rule lowers that test twenty five miles per hour that results in less protection and it's dramatically illustrated by the chart that is placed in the ninety eight because the agency found that vehicles already could meet a thirty mile per hour test for the fiftieth percentile male they didn't attribute any increase in protection from adopting that type of test however they concluded that by adopting a twenty five mile per hour test this would permit manufacturers to degrade the existing protection to such a degree that if they took full advantage of the rule there would be and efficient all three hundred ninety four fatalities as a result of the decrease in the protection of the airbag for that population that is the reason that we say th not a rule that improves automobile safety and indeed it's his own statements about echo that the only way that they can claim that this there is any improvement here is to make two kinds the first is that the bas then a worse test that we could have opted for which is the twenty five mm our purpose like test the second thing comes through in the statements with respect to the notice is that the agency is relying on the manufacturers to voluntarily not take advantage of the rule and degrade protection but instead improve it that is contrary to the statute which says that this is a rule that is required by regulating the sector if directed by regulation to come up with a standard that relevant is that although the statute talks about two goals improving occupant protection and minimizing the breasts and we believe the fact that it does not improve protection for protective benefits from the other aspects of the rule which are directed towards smaller populations children and small adults in in in particular there's no way to rationalize this rule as a tradeoff that results in a net benefits a safety instead because of the importance of this particular test and the fact that is not and would not be supported if the rationale was that the technology does not exist and it's not feasible to understand that you need to look at the principle tradeoffs that the manufacturers tests were not borne out by the test and its analysis of the record in the final rule the agency did not repudiate those planes they put them in a footnote or buried them in more obscure parts of the record and in tests and in the end say it's clear from this that the tech not existing technology in vehicles allows ninety factures to meet these various tests one final point on nest is that multi level inflation for nets and also council for intervenors are at the jones like to reserve some of my time for ms jones to present five minutes of argument on behalf of the interveners in this case thank you obviously we want to talk think that may help answer some of those questions the date that the order says it was issued on is the date that final approval was given by the agency decision maker in this case december sixth two thousand and one date is the date that it w that is by looking at the one nine hundred ninety five rule making that address from marilee address the second question about venue but it also said that issue is the date that triggers it now didn't go into the kind of detail that we're going into today but it wasn't own regulations and that those regulations allowed to be recalled before publication that's true that doesn't affect however the finale for purposes of determining whether its review will and the cases that are rose during th seems to me that the point is that for purposes of review ability and that's what those cases are about after all it doesn't matter whether the office of the federal register allows it to be recalled it matters whether a petition for review fi the concerned parties of any uncertainty about when the gates starts this is not something that we just came up with today this is something that everybody has known about for a long time and as we pointed out in our motion this is something that public citizen representing the center for honest safety knew about some twenty years ago because they filed a late petition a review that would have been timely under this under their argument today and it was dismissed by the d c circuit has no opinion on that ground we attached to our motion that this is this is frankly i think an error that they're now trying to come up with a post hoc rationalization to overcome there's no doubt that everybody knew issued means  and there's no reason to go through any great convoluted argument to try to overcome that now especially because this particular part of the citizen center for us if you knew about this on time technical things that those were granted in part but that doesn't matter they're not trying to seek review of the issues on which reconsideration was granted they don't get any benefit from that the the scheme is pretty clear and many back up for a minute and talk about the evolution of the cases cases such as i see concerned workers and transportation and those cases that harbor the party base nature of a finale and that was important in the last fifteen twenty years especially because what was happening was you get multiple parties involved before any some of them would petition for reasons aeration at the agency level others wanted to go straight to court and there was some question at the time about fifteen twenty years ago indeed as little as ten years ago whether those who decided not to go back to the agency were entitled to go straight to court the courts of unanimously held that if you don't want to go back to the agency you get to go to court your fifty nine days  context starts to run as soon as the order becomes final and reviewable even if somebody else is raising precisely the same issues before the agency in a position for reconsideration that's important because you don't get to fifty nine day windows to file a petition for review you only get one it's a jurisdictional period that limits the authority of this court without complying with it they are out of luck they didn't review during the relevance of the nine day period within that immediate period as long as some petition for reconsideration is there for the agency that would be an extraordinarily extraordinary vrai with the unanimously have the other circuits that have considered that question the alternative would be to say that the fifty nine day period because that's a new decision of course no surprise there and when i look back at the brotherhood of locomotive engineers it's particularly surprised that there's high to take advantage of that is because it actually refutes your very argument  cannot start the clock again just by asking for reconsideration especially when reconsideration is tonight as it was here in relevant part i'd like to turn briefly before i get up to much of interveners time to the merits and they take the lives of children in small regards and those are people that the public and the politicians in congress and in the administration were rightly very concerned about me wanted to address those problems so t twenty one the statute here told to do two things not one if the expense of the other but both you must improve our safety at the same time that it ensures risk minimisation for those populations that's a delicate balance and the agenc the ability to accomplish the risk minimisation requirements that's the principal concern that under vies the decision not to go to third instead of twenty five and i want to invest for a moment to the repeated invocation of this notion that there interveners time if i make just make a few comments i hope you'll grant her a little bit of leeway in this goes as well to the concerns that the agency had that they wanted the manufacturers to get it right the first time because the public acceptability concerns arose from the earlier incidents there were there was a large portion of the of this public that didn't believe these safety devices work and they believe that actually put children at risk and then agency rightly wanted to overcome that  phase this advanced airbag thing is the regulation and so in the end this comes down to the agency expert judgment about the technology involved here and it ability of manufacturers to comply with if we make you strive harder in other words we're giving you some arcane protection for everybody with the way we've developed this rule one is an injury criteria which are our arm tightened another one is in the addition of new tasks and another one is envy i'm sorry if i can pull back my list in the change from the stud test to the twenty five that's a real improvement on all three scores and we've done that so the question is do we have to do more improved and protections they said no because not produce a more dangerous highway environment and that have harbors a snitzer for nine hundred seventy eight here we are talking about a dangerous highway environment for small children and small adults that responded to nine hundred ninety seven and with a of this regulation that was not unreasonable for the agency to conclude that the industry's task in meeting this very complex rule should focus on protecting that population at risk and look in the longer term at other ways to a theoretical or a average or even a tolerance of five percent failure it is a one hundred percent compliance requirement it was not unreasonable for the agency to ask the industry and to order the just have one point to make on the merits and turning to the prestigious organs the arguments that you've heard this morning would be fine if what the agency heads on here is that we're only going to require a minimal improvement with the agency did instead of say during the period that we're implementing the risk minimisation requirements which go through two thousand sets we will allow manufacturers to degrade the performance that currently existin he knowledge is agency action can be called back once it's in sense of the federal rights or the second is the regulation here does not set the time will run from the date the commissioner we're from the date that we put on it on the notices being issued day it says it will run from the final action the final action with respect to any rule that's been published in the federal register is publication in the federal register day window there is no such case that holds that he says that it is it follows from the case to call that those who do not want to go back to the agency are entitled to go to court that you must go to reconsideration and the supreme court and other courts have gone on to say by virtue of the special language in the hobbs act and some other statutes that make clear that congress did not want her clue people from speaking