## United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 05-3908

___________ New Prime, Inc., doing business as * Prime, Inc., * * Petitioner, * * Petition for Review of an Order v. * of the Federal Motor Carrier Safety * Administration. Federal Motor Carrier Safety * Administration; United States * [UNPUBLISHED] Department of Transportation; United * States of America, * * Respondents. *

___________ Submitted: November 3, 2006 Filed: December 1, 2006

___________ Before MURPHY, BYE, and MELLOY, Circuit Judges.

___________ PER CURIAM. New Prime, Inc., d/b/a Prime, Inc. (Prime) petitions for review following a decision by a Federal Motor Carrier Safe ty Administration (FMCSA) Assistant Administrator refusing to vacate a final ag ency order (FAO) imposing civil penalties. We dismiss the petition as untimely.1 Prime argues that its August 10, 2004 motion to vacate was not a motion to reconsider, but it offers no authority for that position and at the time, only a motion for reconsideration--not a motion to vacate--was provided for in the applicable regulations. See 49 C.F.R. § 368.64 (2004). Further, the Assistant Administrator clearly stated in denying Prime’s motion to vacate that it had been construed as a motion for reconsideration.
-2- Prime’s October 2005 petition for review is untimely because it was required to be filed, at the latest, within thirty days of the issuance of the July 26, 2004, FAO on August 3, 2004. See49 U.S.C. § 521(b)(9). Becausethe statute and regulations are silent on the issue, the applicable Administrative Procedures Act provision applies, and the FAO at issue here b ecame final for purposes of judicial review when the FAO was issued, despite Prime’s fili ng of a motion to vacate. See5 U.S.C. § 704 (except as otherwise expressly require d by statute, agency action otherwise final is final for purposes of judicial review whether or not there has been presente d or determined any form of reconsideration); Darby v. Cisneros , 509 U.S. 137, 145-47 (1993) (§ 704 has long been construed not to prevent petitions for reconsideration from rendering orders under reconsideration nonfinal).

Even if a motion for reconsideration c ould toll the time for filing a petition for review, we agree with FMCSA that Prim e’s August 10, 2004 motion to vacate the FAO was a motion to reconsider, and thus Pri me would have had th irty days from the July 5, 2005, order denying that motion to file the instant petition for review, which it failed to do. 1 Prime’s subsequent July 16, 2005, motion to reconsider, which FMCSA viewed as an unauthorized successivemotion to reconsider, was ineffective to further toll the time to file a petition for judicial review. Cf. Midland Coal Co. v. Dir., Office of Workers’ Comp. Programs , 149 F.3d 558, 560, 564 (7th Cir. 1998) (in case involving Black Lung Benefits Act, fi nding no jurisdiction to entertain petition for review, whether second re quest to reconsider was un timely request to reconsider Benefits Review Board’s original decision or unreviewable request to reconsider denial of first motion to reconsider); Nat’ l Bank of Davis v. O ffice of Comptroller of-3- Currency , 725 F. 2d 1390, 1391-92 (D.C. Cir. 1984) (per curiam) (motion for administrative reconsideration which Congre ss did not direct agency to consider, which was dismissed in part on procedur al grounds, and which petitioner filed over 60 days after agency acted, cannot retr oactively extend 30-day period Congress specified for judicial review).
Accordingly, we dismiss as untimely Prime’s petition for judicial review.

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