United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued December 9, 2005 Decided June 23, 2006

No. 04-5402

CENTER FOR AUTO SAFETY AND

PUBLIC CITIZEN, INC.,

APPELLANTS

v.

NATIONAL HIGHWAY TRAFFIC SAFETY ADMINISTRATION,

APPELLEE

Appeal from the United States District Court

for the District of Columbia

(No. 04cv00392)

Bonnie I. Robin-Vergeer argued the cause for appellants.

With her on the briefs was Allison M. Zieve.

Jane M. Lyons, Assistant U.S. Attorney, argued the cause

for appellee. With her on the brief were Kenneth L. Wainstein,

U.S. Attorney, Michael J. Ryan, Assistant U.S. Attorney, and

Lloyd S. Guerci, Assistant Chief Counsel, National Highway

Traffic Safety Administration. R. Craig Lawrence, Assistant

U.S. Attorney, entered an appearance.

Before: RANDOLPH and GRIFFITH, Circuit Judges, and

EDWARDS, Senior Circuit Judge.
2

Opinion for the Court filed by Senior Circuit Judge

EDWARDS.

Concurring opinion filed by Circuit Judge RANDOLPH.

EDWARDS, Senior Circuit Judge: The National Highway

Traffic Safety Administration Authorization Act of 1991

(“Safety Act” or “Act”), 49 U.S.C. §§ 30,101 et seq. (2000),

allows automakers to initiate voluntary “recalls” when a motor

vehicle or its equipment contains a safety-related defect or does

not comply with applicable safety standards. 49 U.S.C.

§ 30,118(c). Generally, vehicle owners who are afforded recall

notification of a safety-related defect or noncompliance are

entitled to a free remedy from the manufacturer. The National

Highway Traffic Safety Administration (“NHTSA”) administers

the Safety Act and monitors manufacturer-initiated recalls. 

Beginning sometime in the mid-1980s, automakers adopted

a practice of initiating “regional recalls.” Under this practice,

when a safety-related defect was caused by exposure to atypical

climatic conditions, automakers gave notification and free

remedies only in regions experiencing the climatic conditions

that caused the identified safety-related defect. For example, if

vehicle components corroded when exposed to salt,

manufacturers limited their recalls to owners in states that used

the most salt on their roads. In 1997, Kenneth N. Weinstein,

NHTSA’s Associate Administrator for Safety Assurance, sent

letters to some major automakers and a trade association,

acknowledging that regional recalls had been authorized in the

past, but stating that the agency now had “concerns” about the

practice. See 1997 Letters from NHTSA to Manufacturers and

Trade Associations, reprinted in Joint Appendix (“J.A.”) 136-

38. In 1998, Kenneth N. Weinstein and other NHTSA officials

sent letters to various motor vehicle manufacturers outlining

NHTSA’s “policy guidelines” for “regional recalls.” See, e.g.,

Generic Version of 1998 Letter from NHTSA to Manufacturers
3

at 1, reprinted in J.A. 80 (hereafter “1998 policy guidelines” or

“guidelines”).

On March 10, 2004, Center for Auto Safety (“CAS”) and

Public Citizen, Inc. (“Public Citizen”) filed a lawsuit in District

Court challenging the “regulatory regime governing regional

recalls established in NHTSA’s 1998 letter to automakers.” Br.

for Appellants at 16. Appellants claimed that the 1998 policy

guidelines constitute a “de facto legislative rule” that violates

the Safety Act, and that, even if regional recalls are permissible

in some circumstances, the policy statement violates the

Administrative Procedure Act (“APA”), 5 U.S.C. §§ 551 et seq.

(2000), “because it is arbitrary and capricious and was

promulgated without public notice and comment.” Br. for

Appellants at 16. The District Court dismissed the complaint for

failure to state a claim. We affirm.

Appellants’ claims are not reviewable. See 5 U.S.C. § 704

(judicial review under APA is limited to final agency action).

For agency action to be “final” and reviewable under the APA,

it must generally “mark the consummation of the agency’s

decisionmaking process” and either determine “rights or

obligations” or result in “legal consequences.” Bennett v. Spear,

520 U.S. 154, 178 (1997) (citations and internal quotation marks

omitted). The disputed 1998 policy guidelines do not establish

any binding rules, and they are not finally determinative of the

issues to which they are addressed. Therefore, the guidelines are

not subject to review. Accordingly, we affirm the judgment of

the District Court.

I. BACKGROUND

A. The Statutory Framework

The statutory provisions at issue in this case were first

enacted by Congress with the passage of the National Traffic

and Motor Vehicle Safety Act of 1966, which sought “to reduce

traffic accidents” by regulating the safety of motor vehicles.
4

Pub. L. No. 89-563, 80 Stat. 718, 718 (originally codified at 15

U.S.C. §§ 1381 et seq. (1970)). In 1994, that statute was

repealed, reenacted, and recodified without material change as

part of the National Highway Traffic Safety Administration

Authorization Act of 1991. See Pub. L. No. 103-272, 108 Stat.

745, 1379, 1385 (1994) (repealing); id. at 745, 941-73 (1994)

(reenacting and recodifing without substantive changes).

Administration of the Safety Act has been delegated to the

Secretary of Transportation, who, in turn, has re-delegated his

duties under the Act to NHTSA. See 49 C.F.R. §§ 1.50(a),

501.2(a)(1) (2005). 

The Safety Act includes provisions governing situations

when a motor vehicle or its equipment contains a safety-related

defect or does not comply with an applicable safety standard.

See 49 U.S.C. §§ 30,118-30,121. In these situations, the Act

requires manufacturers to issue a “recall,” providing both notice

of the safety-related defect or noncompliance and a free remedy

to owners, purchasers, and dealers of the vehicle. 49 U.S.C.

§§ 30,118-30,120. The Act allows two exceptions to the recall

requirements. First, “[t]he requirement that a remedy be

provided without charge does not apply if the motor vehicle or

replacement equipment was bought by the first purchaser more

than 10 calendar years . . . before notice is given.” 49 U.S.C.

§ 30,120(g)(1). Second, a manufacturer may obtain an

exemption from the remedy requirements if, after providing

notice and opportunity for public comment, NHTSA determines

that “a defect or noncompliance is inconsequential to motor

vehicle safety.” 49 U.S.C. § 30,120(h); see also Exemption for

Inconsequential Defect or Noncompliance, 49 C.F.R. pt. 556

(2005). 

A recall is triggered in one of two ways. First, NHTSA may

initiate administrative enforcement proceedings under the Act.

The Act provides as follows:
5

(a) NOTIFICATION BY SECRETARY.–The Secretary of

Transportation shall notify the manufacturer of a motor

vehicle or replacement equipment immediately after

making an initial decision (through testing, inspection,

investigation, or research carried out under this

chapter, examining communications under section

30166(f) of this title, or otherwise) that the vehicle or

equipment contains a defect related to motor vehicle

safety or does not comply with an applicable motor

vehicle safety standard prescribed under this chapter.

The notification shall include the information on which

the decision is based. The Secretary shall publish a

notice of each decision under this subsection in the

Federal Register. Subject to section 30167(a) of this

title, the notification and information are available to

any interested person.

(b) DEFECT AND NONCOMPLIANCE PROCEEDINGS AND

ORDERS.– 

(1) The Secretary may make a final decision that a

motor vehicle or replacement equipment contains

a defect related to motor vehicle safety or does not

comply with an applicable motor vehicle safety

standard prescribed under this chapter only after

giving the manufacturer an opportunity to present

information, views, and arguments showing that

there is no defect or noncompliance or that the

defect does not affect motor vehicle safety. Any

interested person also shall be given an

opportunity to present information, views, and

arguments.

(2) If the Secretary decides under paragraph (1) of this

subsection that the vehicle or equipment contains

the defect or does not comply, the Secretary shall

order the manufacturer to–
6

(A) give notification under section 30119 of this

title to the owners, purchasers, and dealers of

the vehicle or equipment of the defect or

noncompliance; and

(B) remedy the defect or noncompliance under

section 30120 of this title.

49 U.S.C. § 30,118(a)-(b).

Second, a vehicle manufacturer may voluntarily initiate a

recall. For this alternative, the Act provides as follows:

(c) NOTIFICATION BY MANUFACTURER.–A manufacturer of

a motor vehicle or replacement equipment shall notify

the Secretary by certified mail, and the owners,

purchasers, and dealers of the vehicle or equipment as

provided in section 30119(d) of this section, if the

manufacturer–

(1) learns the vehicle or equipment contains a defect

and decides in good faith that the defect is related

to motor vehicle safety; or

(2) decides in good faith that the vehicle or equipment

does not comply with an applicable motor vehicle

safety standard prescribed under this chapter.

49 U.S.C. § 30,118(c). A manufacturer typically begins a

voluntary recall by filing a “Part 573 Report,” notifying the

agency of its concerns and proposing a remedial program. See

49 C.F.R. § 573.6 (2005); see also 49 C.F.R. § 573.5 (1998)

(reporting requirements for defects and noncompliance between

1996 and 2002). The manufacturer is then required to notify

“each person registered under State law as the owner [of an

affected vehicle] and whose name and address are reasonably

ascertainable by the manufacturer through State records or other

available sources,” 49 U.S.C. § 30,119(d)(1)(A), or, failing that,

“the most recent purchaser known to the manufacturer,” 49
7

U.S.C. § 30,119(d)(1)(B). When a manufacturer undertakes a

voluntary recall, this also entails an obligation to “remedy the

defect or noncompliance.” 49 U.S.C. § 30,120(a)(1). 

Even though voluntary recalls are initiated by a

manufacturer, NHTSA retains full authority under the Act to

oversee and regulate any recall. On this score, the statute

provides:

On the motion of the Secretary or on petition of any

interested person, the Secretary may conduct a hearing to

decide whether the manufacturer has reasonably met the

notification requirements under this section. . . . If the

Secretary decides that the manufacturer has not reasonably

met the notification requirements, the Secretary shall order

the manufacturer to take specified action to meet those

requirements and may take any other action authorized

under this chapter.

49 U.S.C. § 30,118(e); accord 49 U.S.C. § 30,120(e) (providing

same procedure for remedy requirements); see Petitions for

Hearings on Notification and Remedy of Defects, 49 C.F.R. pt.

557 (2005). 

During any recall, the notification given by a manufacturer

must provide vehicle owners with, inter alia, detailed

information about the defect or noncompliance, the risk to motor

vehicle safety, and the measures to be taken to remedy the

problem. 49 U.S.C. § 30,119(a); see 49 C.F.R. § 577.5(e)-(g)

(2005). NHTSA has made it clear that recall notifications

should “adequately inform and effectively motivate owners of

potentially defective or noncomplying motor vehicles or items

of replacement equipment to have such vehicles or equipment

inspected and, where necessary, remedied as quickly as

possible.” 49 C.F.R. § 577.2 (2005).

The Safety Act allows “[a]ny interested person” to “file a

petition with [NHTSA] requesting the [agency] to begin a
8

proceeding . . . to decide whether to issue an order under section

30118(b)” of the statute. 49 U.S.C. § 30,162(a)(2); see Petitions

for Rule-Making, Defect, and Noncompliance Orders, 49 C.F.R.

pt. 552 (2005). Members of the public are also permitted to

petition for a hearing to determine whether a manufacturer’s

recall has reasonably met the notification or remedy

requirements of the Act. See 49 U.S.C. §§ 30,118(e), 30,120(e).

At such hearings, “[a]ny interested person may make written and

oral presentations of information, views, and arguments on

whether the manufacturer has reasonably met” its statutory

obligations. Id.

B. Regional Recalls

Beginning in the mid-1980s, automakers began initiating

voluntary recalls on a geographically limited basis when a defect

or noncompliance was caused by atypical climatic conditions.

For many years, these regional recalls raised no objections from

NHTSA. In June 1997, however, NHTSA’s Associate

Administrator for Safety Assurance, Kenneth N. Weinstein, sent

a letter to Ford Motor Company (“Ford”), explaining that the

agency “ha[d] concerns over several recent safety recalls

conducted by Ford Motor Company (Ford) which were limited

in terms of their geographic scope.” Letter from Kenneth N.

Weinstein, Associate Administrator for Safety Assurance,

NHTSA, to L.W. Camp, Director of Automobile Safety and

Engineering Standards, Ford (June 9, 1997), reprinted in J.A.

137. A month later the agency sent a letter to Chrysler

Corporation (“Chrysler”). See Letter from Kenneth N.

Weinstein, Associate Administrator for Safety Assurance,

NHTSA, to Susan M. Cischke, Executive Director for Vehicle

Compliance and Safety Affairs, Chrysler (July 9, 1997),

reprinted in J.A. 136 (advising the company of NHTSA’s

“concerns over recent safety recalls conducted by certain

manufacturers”). A similar letter was sent to the Association of

International Automobile Manufacturers on July 10, 1997. See
9

Letter from Kenneth N. Weinstein, Associate Administrator for

Safety Assurance, NHTSA, to Philip A. Hutchinson, President

and CEO, Association of International Automobile

Manufacturers, Inc. (July 10, 1997), reprinted in J.A. 138. 

A year later, in 1998, NHTSA sent letters to Ford and

Chrysler outlining a regional recall policy. See Letter from

Kenneth N. Weinstein, Associate Administrator for Safety

Assurance, NHTSA, to L.W. Camp, Director of Automotive

Safety and Engineering Standards, Ford (Aug. 12, 1998),

reprinted in J.A. 142; Letter from Kenneth N. Weinstein,

Associate Administrator for Safety Assurance, NHTSA, to

Susan M. Cischke, Executive Director for Vehicle Compliance

and Safety Affairs, Chrysler (Sept. 4, 1998), reprinted in J.A.

149. These two letters, and one sent to Volkswagen in June of

1999, Letter from Jonathan D. White, Chief of Recall Analysis

Division, Office of Defects Investigation, NHTSA, to Andreas

H. Steglich, Product Compliance Team Leader, Volkswagen of

America, Inc. (June 18, 1999), reprinted in J.A. 256,

incorporated the text of the “generic version” of the 1998 letter

to automakers. See Generic Version of 1998 Letter from

NHTSA to Manufacturers at 1, reprinted in J.A. 80 (setting forth

“policy guidelines” with respect to regional recalls).

The 1998 policy guidelines distinguish between

“circumstances: (1) when the consequences of the defect occur

as the result of a short-term or single exposure to a particular

meteorological condition; and (2) when the consequences of the

defect generally occur only after long-term or recurring

exposure to environmental conditions.” Id. The guidelines

indicate that, as to the former, a regional recall generally is “not

appropriate.” Id. However, they also indicate that NHTSA

may, “in some cases,” be willing to modify the manufacturer’s

notification duties. Id. at 2, reprinted in J.A. 81. Thus, the

guidelines state that “the agency may act favorably on requests

by manufacturers to include language in the letters to owners of
10

vehicles in ‘low-risk’ states . . . that indicates that the defect is

unlikely to cause a safety problem if the vehicle is not exposed

to the meteorological condition at issue.” Id. As to defects that

arise from long-term exposure, the guidelines say that “if the

manufacturer is able to demonstrate that the relevant

environmental factor (or factors) is significantly more likely to

exist in the area proposed for inclusion than in the rest of the

United States, NHTSA will approve a regional recall.” Id.

There is a caveat that “[t]he manufacturer’s justification for such

a proposal should be based on objective factors, and not merely

on differences in complaint rates among the states.” Id. 

The guidelines also indicate that, in pursuing a regional

recall, “manufacturers must assure that vehicles from outside the

designated area that experience a problem due to the defect are

taken care of appropriately.” Id. Finally, the guidelines state

that the agency “[has] determined that, at a minimum, vehicles

originally sold in or currently registered in [20 designated] states

[and the District of Columbia] must be included in any regional

recall related to corrosion caused by road salt.” Id. at 2-3,

reprinted in J.A. 81-82. The guidelines conclude with the

following words of caution: “[M]anufacturers must discuss all

proposals to limit the geographic scope of any recall with

[Office of Defects Investigation] prior to making any public

statements regarding that scope.” Id. at 3, reprinted in J.A. 82.

C. The Legal Challenge in this Case

On May 15, 2002, CAS wrote to NHTSA’s new

Administrator, taking the agency to task for its policy of

“approving” regional recalls. Letter from Clarence M. Ditlow,

Executive Director, CAS, to Jeffrey Runge, Administrator,

NHTSA (May 15, 2002), reprinted in J.A. 216. The agency

responded on November 1, 2002, defending the 1998 policy

guidelines and attaching the generic version of the letters it sent

to automakers. Letter from Kenneth N. Weinstein, Associate

Administrator for Enforcement, NHTSA, to Clarence M. Ditlow,
11

Executive Director, CAS (Nov. 1, 2002), reprinted in J.A. 221.

CAS followed up with a second letter on September 10, 2003.

Letter from Clarence M. Ditlow, Executive Director, CAS, to

Jeffrey Runge, Administrator, NHTSA (Sept. 10, 2003),

reprinted in J.A. 226. The agency did not respond to CAS’

second letter.

Subsequently, on March 10, 2004, CAS and Public Citizen

filed suit in District Court challenging the 1998 policy

guidelines and the regulatory regime governing regional recalls.

They maintained that the agency’s policy is contrary to law,

because it violates the mandates of the Safety Act, constitutes a

de facto legislative rule issued without the opportunity for public

notice and comment, and is arbitrary and capricious. Ctr. for

Auto Safety, Inc. v. Nat’l Highway Traffic Safety Admin., 342 F.

Supp. 2d 1, 8 (D.D.C. 2004). On June 24, 2004, appellants

moved for summary judgment. On July 7, 2004, NHTSA

responded with a motion to dismiss, on the ground that, inter

alia, the complaint failed to state a claim upon which relief can

be granted.

On September 30, 2004, the District Court granted the

agency’s motion to dismiss, and denied appellants’ motion for

summary judgment. Id. at 3. The District Court concluded that

the Safety Act does not prohibit regional recalls. Id. at 16. It

also found that NHTSA’s 1998 guidelines set out the agency’s

policy, not a binding rule, and thus compliance with the APA’s

notice-and-comment procedures was not required. Id. at 22; see

5 U.S.C. § 553(b)(A) (providing that notice-and-comment

rulemaking procedures “[do] not apply . . . to . . . general

statements of policy”). Finally, the District Court held that

plaintiffs’ arbitrary and capricious claim failed, because the

1998 policy guidelines did not constitute final agency action.

Ctr. for Auto Safety, 342 F. Supp. 2d at 24.

On October 29, 2004, CAS and Public Citizen filed a timely

notice of appeal. Their challenge here, as below, is not about
12

NHTSA’s threatening enforcement actions against Ford,

Chrysler, Volkswagen, or any other automaker. Rather, the

entire case is focused on the agency’s 1998 policy guidelines.

The parties agree that the generic version of the letters that were

sent to motor vehicle manufacturers (i.e., “the 1998 policy

guidelines”) forms the basis of NHTSA’s policy with respect to

regional recalls.

Oral argument was held on December 9, 2005. Thereafter,

we ordered the parties to submit supplemental briefing to

address the nature and extent of the authority of Kenneth N.

Weinstein, the Associate Administrator for Safety Assurance

and apparent author of the 1998 policy guidelines. The parties

were asked to address whether Weinstein “had authority to issue

policy guidance for the Administration.” Ctr. for Auto Safety v.

Nat’l Highway Traffic Safety Admin., No. 04-5402, Order (D.C.

Cir. Dec. 13, 2005).

II. ANALYSIS

A. Standard of Review

If we were to assume that the matter under review is the

District Court’s grant of appellee’s motion to dismiss under Rule

12(b)(6) of the Federal Rules of Civil Procedure, then the

standard of review would be de novo. See Reliable Automatic

Sprinkler Co. v. Consumer Prod. Safety Comm’n, 324 F.3d 726,

731 (D.C. Cir. 2003). However, Rule 12(b) states that, if, on a

motion to dismiss for failure to state a claim upon which relief

can be granted, “matters outside the pleading are presented to

and not excluded by the court, the motion shall be treated as one

for summary judgment and disposed of as provided in Rule 56,

and all parties shall be given reasonable opportunity to present

all material made pertinent to such a motion by Rule 56.” FED.

R. CIV. P. 12(b). In this case, the District Court considered

“matters outside the pleading” in granting the agency’s motion

to dismiss. In so doing, it effectively treated the motion as one
13

for summary judgment. Both parties had a “reasonable

opportunity to present all material made pertinent to such a

motion by Rule 56.” See FED. R. CIV. P. 56. Indeed, the

external materials relied upon by the District Court were

submitted by appellants as declarations and exhibits in support

of their motion for summary judgment. And none of these

materials raise any genuine issue of material fact. See FED. R.

CIV. P. 56(c). Therefore, “[w]e may . . . ‘characterize[ ]’ the

district court’s dismissal as a grant of summary judgment under

Rule 56(c) and affirm.” Fraternal Order of Police v. Williams,

375 F.3d 1141, 1144 (D.C. Cir. 2004) (quoting Mazaleski v.

Treusdell, 562 F.2d 701, 708 (D.C. Cir. 1977)) (second

alteration in original); see also Yates v. District of Columbia,

324 F.3d 724, 725 (D.C. Cir. 2003) (per curiam) (“resulting

order” from motion to dismiss “must be treated [on appeal] as a

grant of summary judgment under Rule 56” because “parties

submitted, and [court] considered, matters outside the

pleadings”).

“We review de novo a district court’s decision to grant

summary judgment, viewing the evidence in the light most

favorable to the non-moving party. A party is entitled to

summary judgment only if there is no genuine issue of material

fact and judgment in the movant’s favor is proper as a matter of

law.” U.S. ex rel. Bettis v. Odebrecht Contractors, 393 F.3d

1321, 1325 (D.C. Cir. 2005) (citing Kaempe v. Myers, 367 F.3d

958, 965-66 (D.C. Cir. 2004)).

B. Decisional Parameters for Determining When Agency

Action Is “Final” and Whether Policy Guidelines

Constitute Binding Rules

The District Court had jurisdiction over appellants’ claims

pursuant to 28 U.S.C. § 1331 (2000). Appellants’ cause of

action rests solely on the APA. Under the APA, “[a]gency

action made reviewable by statute and final agency action for

which there is no other adequate remedy in a court are subject
14

to judicial review.” 5 U.S.C. § 704 (emphasis added). As we

noted in Reliable Automatic Sprinkler, “in cases such as this

one, in which judicial review is sought under the APA rather

than a particular statute prescribing judicial review, the

requirement of final agency action is not jurisdictional.” 324

F.3d at 731 (relying on Califano v. Sanders, 430 U.S. 99, 107

(1977) (holding “that the APA does not afford an implied grant

of subject-matter jurisdiction permitting federal judicial review

of agency action”)); see also Md. Dep’t of Human Res. v. Dep’t

of Health & Human Servs., 763 F.2d 1441, 1445 n.1 (D.C. Cir.

1985) (“The Supreme Court has clearly indicated that the

Administrative Procedure Act itself, although it does not create

subject-matter jurisdiction, Califano v. Sanders, 430 U.S. 99

(1977), does supply a generic cause of action in favor of persons

aggrieved by agency action.”); R.I. Dep’t of Envtl. Mgmt. v.

United States, 304 F.3d 31, 40 (1st Cir. 2002) (same). Rather,

§ 704 limits causes of action under the APA, as does, for

example, § 706(1) (“reviewing court shall . . . compel agency

action unlawfully withheld or unreasonably delayed”), see

Telecomm. Research & Action Ctr. v. FCC, 750 F.2d 70, 76-77

(D.C. Cir. 1984). In this case, our focus is on § 704, because the

principal disagreement between the parties centers on this

provision of the APA.

In order to sustain their position, appellants must show that

the 1998 policy guidelines either (1) reflect “final agency

action,” 5 U.S.C. § 704, or (2) constitute a de facto rule or

binding norm that could not properly be promulgated absent the

notice-and-comment rulemaking required by § 553 of the APA.

These two inquiries are alternative ways of viewing the question

before the court. Although, if appellants could demonstrate the

latter proposition they would implicitly prove the former,

because the agency’s adoption of a binding norm obviously

would reflect final agency action. In either case, appellants

would have a viable cause of action.
15

Agency action is generally “final” and reviewable if two

conditions are satisfied: 

First, the action must mark the “consummation” of the

agency’s decisionmaking process – it must not be of a

merely tentative or interlocutory nature. And second, the

action must be one by which “rights or obligations have

been determined,” or from which “legal consequences will

flow.” 

Bennett, 520 U.S. at 177-78 (citations omitted). See 5 U.S.C.

§ 704; Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 882 (1990)

(“When . . . review is sought not pursuant to specific

authorization in the substantive statute, but only under the

general review provisions of the APA, the ‘agency action’ in

question must be ‘final agency action.’ See 5 U.S.C. § 704.”);

Reliable Automatic Sprinkler, 324 F.3d at 731 (“If there was no

final agency action here, there is no doubt that appellant would

lack a cause of action under the APA.”). 

“In determining whether an agency has issued a binding

norm or merely” an unreviewable “statement of policy, we are

guided by two lines of inquiry.” See Wilderness Soc’y v.

Norton, 434 F.3d 584, 595 (D.C. Cir. 2006). One line of

analysis considers the effects of an agency’s action, inquiring

whether the agency has “(1) impose[d] any rights and

obligations, or (2) genuinely [left] the agency and its

decisionmakers free to exercise discretion.” CropLife Am. v.

EPA, 329 F.3d 876, 883 (D.C. Cir. 2003) (citation and internal

quotation marks omitted). The language used by an agency is

an important consideration in such determinations. See Cmty.

Nutrition Inst. v. Young, 818 F.2d 943, 946 (D.C. Cir. 1987) (per

curiam). The second line of analysis looks to the agency’s

expressed intentions. CropLife Am., 329 F.3d at 883. This

entails a consideration of three factors: “(1) the [a]gency’s own

characterization of the action; (2) whether the action was

published in the Federal Register or the Code of Federal
16

Regulations; and (3) whether the action has binding effects on

private parties or on the agency.” Molycorp, Inc. v. EPA, 197

F.3d 543, 545 (D.C. Cir. 1999).

As the case law reveals, it is not always easy to distinguish

between those “general statements of policy” that are

unreviewable and agency “rules” that establish binding norms

or agency actions that occasion legal consequences that are

subject to review. Compare Nat’l Ass’n of Home Builders v.

Norton, 415 F.3d 8, 14, 16 (D.C. Cir. 2005) (holding that there

was no final agency action where the language of the challenged

Protocols was permissive and “the scope of a [regulated party’s]

liability under . . . [the statute] remains exactly as it was before

the Protocols’ publication”); Pac. Gas & Elec. Co. v. Fed.

Power Comm’n, 506 F.2d 33, 38, 48 (D.C. Cir. 1974) (noting

that a policy statement that “does not establish a binding norm,”

and “is not finally determinative of the issues or rights to which

it is addressed,” is not subject to review) (citation and internal

quotation marks omitted), with Barrick Goldstrike Mines, Inc.

v. Browner, 215 F.3d 45, 47-49 (D.C. Cir. 2000) (holding, inter

alia, that an EPA guidance, which created new reporting

requirements for regulated entities, as a directive with legal

consequences, amounted to final agency action). 

Nevertheless, the distinction between “general statements

of policy” and “rules” is critical. If the 1998 policy guidelines

constitute a de facto rule, as appellants claim, then they would

clearly meet Bennett’s test for final agency action and § 553 of

the APA would require the agency to afford notice of a proposed

rulemaking and an opportunity for public comment prior to

promulgating the rule. 5 U.S.C. § 553. If the guidelines are no

more than “general statements of policy,” as NHTSA would

have it, then they would neither determine rights or obligations

nor occasion legal consequences and, thus, would be exempt

from the APA’s notice-and-comment requirement. 5 U.S.C.

§ 553(b)(A).
17

There is an important caveat with respect to “general

statements of policy” that bears mention here: if NHTSA

applies the 1998 policy guidelines in a particular situation, it

must be prepared to support the policy. “An agency cannot

escape its responsibility to present evidence and reasoning

supporting its substantive rules by announcing binding

precedent in the form of a general statement of policy.” Pac.

Gas & Elec., 506 F.2d at 38-39. This principle may apply even

when an agency merely threatens enforcement of a guideline, if

the guideline is binding on its face or in practice. See, e.g.,

Barrick Goldstrike Mines, 215 F.3d at 47-50. But the instant

case does not involve a challenge to threats of enforcement by

NHTSA. Indeed, the petitioners in this case have not even

petitioned the agency pursuant to 49 U.S.C. § 30,162(a)(2) to

take enforcement action against any automaker. 

On the record here, using any of the foregoing lines of

analysis, NHTSA’s 1998 policy guidelines do not reflect final

agency action and they do not constitute binding rules.

C. The 1998 Policy Guidelines Do Not Reflect “Final

Agency Action” and They Do Not Constitute Binding

Rules

As noted above, under Bennett, the 1998 policy guidelines

cannot be viewed as “final agency action” under § 704 of the

APA unless they “mark the consummation of the agency’s

decisionmaking process” and either determine “rights or

obligations” or result in “legal consequences.” Bennett, 520

U.S. at 178 (citations and internal quotation marks omitted). It

is possible to view the guidelines as meeting the first part of the

Bennett test, but not the second. The guidelines are nothing

more than general policy statements with no legal force. They

do not determine any rights or obligations, nor do they have any

legal consequences. Therefore, the guidelines cannot be taken

as “final agency action,” nor can they otherwise be seen to

constitute a binding legal norm. 
18

There is no doubt that the guidelines reflect NHTSA’s

views on the legality of regional recalls. But this does not

change the character of the guidelines from a policy statement

to a binding rule. Indeed, the case law is clear that we lack

authority to review claims under the APA “where ‘an agency

merely expresses its view of what the law requires of a party,

even if that view is adverse to the party.’” Indep. Equip.

Dealers Ass’n v. EPA, 372 F.3d 420, 427 (D.C. Cir. 2004)

(Roberts, J.) (quoting AT&T Co. v. EEOC, 270 F.3d 973, 975

(D.C. Cir. 2001)). 

In AT&T Co., we were asked to resolve competing

interpretations of the scope of an employer’s obligation under

the Pregnancy Discrimination Act of 1979. AT&T believed that

it was not statutorily required, when calculating pension

benefits, to give former employees work credit for pregnancy

leaves taken prior to the passage of the act in 1979. AT&T Co.,

270 F.3d at 974. EEOC’s Compliance Manual took the opposite

view, and the agency had issued a Letter of Determination,

stating its view that AT&T had thereby violated the act as to two

employees. Id. The company filed suit seeking judicial

imprimatur of its legal view. Id. at 975. AT&T conceded that

the Letter of Determination was not final agency action, but

argued, inter alia, “that the Commission [took] final action

when it embrace[d] one view of the law and reject[ed] another.”

Id. We were not persuaded:

Although there are . . . particular circumstances in which an

agency’s taking a legal position itself inflicts injury or

forces a party to change its behavior, such that taking that

position may be deemed final agency action, this is not such

a case. The Commission has not inflicted any injury upon

AT&T merely by expressing its view of the law – a view

that has force only to the extent the agency can persuade a

court to the same conclusion. Unlike the EPA Guidance at

issue in Appalachian Power [Co. v. EPA, 208 F.3d 1015
19

(D.C. Cir. 2000)], the EEOC Compliance Manual does not

affect the regulated community. Whereas “EPA officials in

the field [were] bound to apply” the EPA Guidance, as

discussed below the EEOC is not bound to sue AT&T.

Id. at 975-76 (citations and accompanying parentheticals

omitted) (second alteration in original).

As in AT&T Co., this case involves competing

interpretations of the scope of regulated parties’ statutory

obligations. Auto manufacturers have in effect notified NHTSA

that they believe that geographically limited recalls satisfy their

statutory obligations under 49 U.S.C. § 30,118(c), if the safetyrelated defect or noncompliance results from exposure to

extreme weather conditions. NHTSA has given some

endorsement to regional recalls, delineating its views in the

contested 1998 policy guidelines. And appellants contend that

the Safety Act prohibits denying owners of defective motor

vehicles notice and free remedy solely on the basis of their

vehicle’s state of original sale or current registration. 

As with EEOC’s position in AT&T Co., NHTSA’s position

here is nothing more than a privileged viewpoint in the legal

debate. The guidelines do not purport to carry the force of law.

They have not been published in the Code of Federal

Regulations. They do not define “rights or obligations.” They

are labeled “policy guidelines,” not rules. See Generic Version

of 1998 Letter from NHTSA to Manufacturers at 1, reprinted in

J.A. 80 (setting forth “policy guidelines” with respect to

“regional recalls”). And they read as guidelines, not binding

regulations. 

For example, the generic letter states: “NHTSA has

concluded that, in general, it is not appropriate for a

manufacturer to limit the scope of a recall to a particular

geographical area where the consequences of the defect can

occur after a short-term exposure to a meteorological condition.”
20

Id. (emphasis added). The language relating to notification

obligations for short-term exposure defects is similarly

conditional:

NHTSA believes that in some cases it may be permissible

for a manufacturer to modify the content of the owner

notification letter that is sent to owners in those areas.

Therefore, notwithstanding 49 C.F.R. 577.8

(“Disclaimers”), the agency may act favorably on requests

by manufacturers to include language in the letters to

owners of vehicles in “low-risk” states . . . that indicates

that the defect is unlikely to cause a safety problem if the

vehicle is not exposed to the meteorological condition at

issue. However, the letter must make it clear that the owner

will be able to obtain a free remedy for the defect if he or

she wishes. 

Id. at 1-2, reprinted in J.A. 80-81 (emphasis added); see also id.

at 2, reprinted in J.A. 81 (“[Office of Defects Investigation]

would not normally request a manufacturer to conduct a followup notification campaign . . . .”) (emphasis added). Likewise,

the language describing the agency’s position on regional recalls

for safety-related defects resulting from long-term exposure to

environmental conditions is only general in its prescriptions.

See id. at 2, reprinted in J.A. 81 (“[I]f the manufacturer is able

to demonstrate that the relevant environmental factor (or factors)

is significantly more likely to exist in the area proposed for

inclusion than in the rest of the United States, NHTSA will

approve a regional recall.”). And, as indicated above, the

guidelines notably conclude in a way to emphasize that the

agency’s position on regional recalls remains flexible. Id. at 3,

reprinted in J.A. 82 (“[M]anufacturers must discuss all

proposals to limit the geographic scope of any recall with

[Office of Defects Investigation] prior to making any public

statements regarding that scope.”).
21

The 1998 policy guidelines certainly do not, as appellants

contend, “read[ ] like a ukase.” Appalachian Power Co. v. EPA,

208 F.3d 1015, 1023 (D.C. Cir. 2000). NHTSA has not

commanded, required, ordered, or dictated. Cf. id. And there is

nothing in the record to indicate that officials in NHTSA’s

Office of Defects Investigation are bound to apply the guidelines

in an enforcement action. The agency remains free to exercise

discretion in assessing proposed recalls and in enforcing the Act.

CropLife Am., 329 F.3d at 883. There is also nothing to indicate

that automakers can rely on the guidelines as “a norm or safe

harbor by which to shape their actions,” see Gen. Elec. Co. v.

EPA, 290 F.3d 377, 383 (D.C. Cir. 2002) (citation and internal

quotation marks omitted), which might suggest that the

guidelines are binding as a practical matter, see id. And it does

not matter that agency officials have encouraged automakers to

comply with the guidelines. See Reliable Automatic Sprinkler,

324 F.3d at 733 (“The agency’s letter to [company officials]

merely stated an ‘intention of the Compliance staff to make the

preliminary determination that these sprinklers present a

substantial product hazard.’ We do not know whether the

agency will bring administrative enforcement proceedings

against [the company].”) (citation omitted). 

Our conclusion that the guidelines amount to a general

statement of policy, rather than a binding rule, is further fortified

by the limited authority of the Associate Administrator for

Safety Assurance. The agency concedes that Kenneth N.

Weinstein, the apparent author of the guidelines, had authority

to issue policy guidance for “NHTSA’s enforcement program

for vehicle safety.” Initial Supplemental Br. for Appellee at 1.

The agency argues, however, that neither Weinstein, nor anyone

else in the position of Associate Administrator for Safety

Assurance, had authority to issue guidelines with binding effect.

 The record supports the agency’s arguments on this point.

See 49 C.F.R. § 501.3(a)(ii) (1998) (the Administrator
22

“[e]stablishes NHTSA program policies, objectives, and

priorities”); 49 C.F.R. § 501.3(c)(3) (1998) (The Associate

Administrator for Safety Assurance is “the principal advisor to

the Administrator on the enforcement of motor vehicle standards

and regulations, [and] directs and administers programs to

ensure compliance with Federal laws, standards, and regulations

relating to motor vehicle safety.”); 49 C.F.R. § 501.8(g)(1)

(1998) (“Except for those portions that have been reserved to the

Administrator or delegated to the Chief Counsel, the Associate

Administrator for Safety Assurance is delegated authority to

exercise the powers and perform the duties of the Administrator

with respect to . . . [a]dministering the NHTSA enforcement

program[s].”). Tellingly, NHTSA’s Chief Counsel has been

delegated authority to “[i]ssue authoritative interpretations of the

statutes administered by NHTSA.” 49 C.F.R. § 501.8(d)(5)

(1998). This authority does not reside with the Associate

Administrator for Safety Assurance. Moreover, the Associate

Administrator for Safety Assurance is specifically without

authority to issue final regulations, other than those relating to

the importation of motor vehicles, as that authority is reserved

by the Administrator. See 49 C.F.R. §§ 501.7(a)(1), 501.8(g)(2)

(1998). 

In other words, Associate Administrator Weinstein had no

authority to issue binding regulations or to make a final

determination that specified regional recalls satisfy a

manufacturer’s duties under 49 U.S.C. § 30,118(c). And his

statements regarding NHTSA’s regional recall policy could not

change an automaker’s legal obligations under the Act. See

Nat’l Ass’n of Home Builders, 415 F.3d at 16 (finding that there

was no final agency action, in part, because “the scope of a

[regulated party’s] liability under . . . [the statute] remains

exactly as it was before the [challenged] Protocols’

publication”). 
23

In sum, the 1998 policy guidelines do not, as appellants

claim, establish new rights and obligations for automakers. We

find, instead, that they set out the agency’s general policy

statement with respect to regional recalls, and nothing more.

“The effect of the [guidelines] is to inform the public of the

types of [regional recalls]” that the agency is unlikely to seek to

expand. Pac. Gas & Elec., 506 F.2d at 40. But, as the

concluding paragraph in the guidelines makes clear, “there is no

assurance that any such plan will” go unchallenged. Id. 

Appellants’ final argument is that even if the guidelines do

not determine rights and obligations, they had legal

consequences. Appellants contend that the agency has altered

the legal regime with consequence both for automakers – who

now allegedly conform their practices to the agency’s standards

– and for automobile consumers – who allegedly own

“defective” vehicles that do not qualify for recall remedies under

the Act. They say that, for seven years, the agency and

automakers have followed the standards announced in the

guidelines. Appellants thus urge that, under a flexible and

pragmatic approach to finality, as endorsed in decisions such as

Ciba-Geigy Corp. v. EPA, 801 F.2d 430 (D.C. Cir. 1986), the

agency’s 1998 policy guidelines must be seen to have legal

consequences that confirm final agency action. 

The flaw in appellants’ argument is that the “consequences”

to which they allude are practical, not legal. It may be that, to

the extent that they actually prescribe anything, the agency’s

guidelines have been voluntarily followed by automakers and

have become a de facto industry standard for how to conduct

regional recalls. But this does not demonstrate that the

guidelines have had legal consequences. The Supreme Court’s

decision in Bennett makes it quite clear that agency action is

only final if it determines “rights or obligations” or occasions

“legal consequences.” 520 U.S. at 178 (emphasis added)
24

(citation and internal quotation marks omitted). Circuit case law

cannot obviate the holding of Bennett.

 As we explained only last term, “if the practical effect of

the agency action is not a certain change in the legal obligations

of a party, the action is non-final for the purposes of judicial

review” under the APA. Nat’l Ass’n of Home Builders, 415

F.3d at 15. Here, the only consequences suggested by appellants

are the automakers’ voluntary compliance with NHTSA’s

guidelines on regional recalls, arguably in order to avoid any

risk of the agency initiating a hearing under 49 U.S.C.

§§ 30,118(e) or 30,120(e), or bringing an enforcement action

pursuant to 49 U.S.C. § 30,118(a)-(b). But de facto compliance

is not enough to establish that the guidelines have had legal

consequences. See Nat’l Ass’n of Home Builders, 415 F.3d at 16

(rejecting as insufficient to establish legal consequences under

Bennett appellant’s “assert[ion] that local permitting agencies

have adopted the [challenged] Protocols to guard against their

own potential liability under [the statute]” absent a showing

“that local officials were coerced by the [agency]” to adopt the

Protocols). And there is nothing in the record here to indicate

that NHTSA has “force[d] [the industry] to change its behavior,

such that” NHTSA’s position on regional recalls “may be

deemed final agency action.” AT&T Co., 270 F.3d at 976. 

It may be that some car owners continue to be

disadvantaged by automakers’ regional recall practices. But

automobile manufacturers adhered to these practices long before

NHTSA issued the 1998 policy guidelines. The adverse effects

flowing from the regional recall practices surely are not a legal

consequence of the guidelines, not only because the effects

preceded the guidelines, but, more importantly, because the

agency has never codified the practices in binding regulations.
25

III. CONCLUSION

Appellants have no cause of action under the APA, because

the contested 1998 policy guidelines do not reflect final agency

action, and they do not otherwise constitute binding rules. We

therefore affirm the District Court’s judgment dismissing

appellants’ action.

So ordered.
RANDOLPH, Circuit Judge, concurring: In this case

concerning the National Highway Traffic Safety

Administration’s “policy guidelines” for regional recalls, my

colleagues and I reach the same destination by different paths.

In my view, the “policy guidelines” at issue here do not

constitute “final agency action,” 5 U.S.C. § 704, because they do

not impose any “legal consequences” on the regulated

automakers. Bennett v. Spear, 520 U.S. 154, 178 (1997).

Agency action is not final when it “does not itself adversely

affect complainant but only affects his rights adversely on the

contingency of future administrative action.” DRG Funding

Corp. v. Sec’y of Housing & Urban Dev., 76 F.3d 1212, 1215

(D.C. Cir. 1996) (quoting Rochester Tel. Corp. v. United States,

307 U.S. 125, 130 (1939)); see also Reliable Automatic

Sprinkler Co., Inc. v. Consumer Prod. Safety Comm’n, 324 F.3d

726, 731-33 (D.C. Cir. 2003); AT&T Co. v. EEOC, 270 F.3d

973, 975-76 (D.C. Cir. 2001). The letters of the Associate

Administrator of the National Highway Traffic Safety

Administration address the situation in which an auto

manufacturer voluntarily proposes to recall its vehicles. See 49

U.S.C. § 30118(c). In this posture, the Administration, “[o]n the

motion of the Secretary or on petition of any interested person

. . . may conduct a hearing to decide whether the manufacturer

has reasonably met the notification requirements under this

section.” Id. § 30118(e). To take an example, the Associate

Administrator’s letter to Ford, J.A. 142-46, requests voluntary

compliance with the “general policy with respect to regional

recalls,” id. at 142, and merely threatens further administrative

action. The Associate Administrator notes that if Ford chooses

not to take the suggested actions, “the agency may commence a

proceeding under 49 U.S.C. §[] 30118(e) . . ..” Id. at 146

(emphasis added). If the threat were carried out, Ford and any

interested person – including, presumably, the appellants – could

present arguments at the hearing. The Administration would

then make a final decision whether the manufacturer is in

compliance with the statute. If not, the Administration could
2

order the manufacturer to take specific action. 49 C.F.R.

§ 557.8 (1998). This order, however, would not be selfexecuting. The Attorney General would have to file a civil

action seeking enforcement. 49 U.S.C. §§ 30121, 30163. This

case is closely analogous to Reliable Automatic Sprinkler Co.,

in which we found that the Consumer Product Safety

Commission’s attempt to induce voluntary action by threatening

to initiate administrative proceedings that could possibly lead to

sanctions was not reviewable. 324 F.3d at 731-32. “To be sure,

there may be practical consequences” from Ford’s (or any other

manufacturer’s) decision not to comply with the Associate

Administrator’s letter, “[b]ut the request for voluntary

compliance clearly has no legally binding effect.” Id. at 732.

The course of action that the auto makers choose is subject to

administrative challenge both by NHTSA and by interested

persons like appellants. Neither the letters threatening action

nor the “guidelines” – merely a generic version of those letters

– dictate the outcome of such challenges.

It may be that the Associate Administrator had authority “to

issue[] policy guidance relating to NHTSA’s enforcement

program for vehicle safety,” Initial Supp. Br. for Appellee at 1.

But that authority tells us nothing about whether the guidance he

issued is sufficiently final to support judicial review. It is not.

The Associate Administrator’s role is largely prosecutorial and

the substantive policy described in the letters has not been

adopted as agency policy. Although the Associate

Administrator may initiate and conduct a hearing, 49 C.F.R.

§ 501.8(g)(1) (1998); see also Initial Supp. Br. for Appellee at

3, the Administrator has reserved the authority to “[m]ake final

decisions concerning alleged safety-related defects.” Id.

§ 501.7(a)(2) (1998). It is the Administrator, not the Associate

Administrator, who has final say over the defect policy, and his

decision is rendered only after an administrative hearing. The

guidelines do not, therefore, represent the “consummation of the
3

agency’s decisionmaking process.” Bennett, 520 U.S. at 178

(internal quotation marks omitted).

The National Traffic and Motor Vehicle Safety Act does not

contain a specific provision authorizing judicial review. We are

therefore confined to reviewing “final agency action[s].” 5

U.S.C. § 704. Because the action here is not final, it is not

reviewable. See Nat’l Ass’n of Home Builders v. Norton, 415

F.3d 8, 13 n.5 (D.C. Cir. 2005).