United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 10, 2013 Decided June 17, 2014

No. 12-1305

ALLIANCE FOR SAFE, EFFICIENT AND COMPETITIVE TRUCK

TRANSPORTATION, ET AL.,

PETITIONERS

v.

FEDERAL MOTOR CARRIER SAFETY ADMINISTRATION AND

ANTHONY FOXX, IN HIS OFFICIAL CAPACITY AS SECRETARY OF

TRANSPORTATION,

RESPONDENTS

On Petition for Review of an Action of the 

Federal Motor Carrier Safety Administration

David E. Frulla argued the cause for petitioners. With him

on the briefs were Shaun M. Gehan, Henry E. Seaton, and Mark

J. Andrews.

Gerald K. Gimmel was on the brief for amicus curiae

National Confectioners’ Logistics Council, Inc. in support of

petitioners. 

Edward J. Kiley was on the brief for amicus curiae

Airforwarders Association in support of petitioners.

Jeffrey A. Clair, Attorney, U.S. Department of Justice,
2

argued the cause for respondents. With him on the brief were

Stuart F. Delery, Principal Deputy Assistant Attorney General,

and Matthew M. Collette, Attorney. Paul M. Geier, Assistant

General Counsel, U.S. Department of Transportation, Peter J.

Plocki, Deputy Assistant General Counsel, and Joy Park, Trial

Attorney, entered appearances.

Before: GARLAND, Chief Judge, ROGERS, Circuit Judge,

and WILLIAMS, Senior Circuit Judge.

Opinion for the Court filed by Chief Judge GARLAND.

GARLAND, Chief Judge: The petitioners in this case are

trucking companies, transportation intermediaries, and trade

associations composed of such firms. They seek review of

PowerPoint presentations that the Federal Motor Carrier Safety

Administration posted on its website on May 16, 2012. The

petitioners maintain that the PowerPoint presentations represent

an “astonishing” change in agency policy, which the agency

failed to subject to notice-and-comment rulemaking as required

by the Administrative Procedure Act. 

We are not astonished. In our view -- and the agency’s --

the PowerPoint presentations do nothing more than explain the

agency’s Safety Measurement System. Because that System

was announced and implemented in 2010, the petitioners’

present effort to challenge it comes too late. Under the Hobbs

Act, upon which this court’s jurisdiction depends, challenges to

agency rules, regulations, or final orders must be brought within

60 days of their issuance. See 28 U.S.C. § 2344. Because that

deadline had passed long before the petitioners filed their

petition for review, we dismiss the petition as untimely.
3

I

Federal law instructs the Secretary of Transportation to

make “safety fitness determinations” for commercial motor

carriers and to make those determinations “readily available to

the public.” 49 U.S.C. § 31144(a). In response, the Secretary

has promulgated regulations establishing procedures and

standards for evaluating the “safety fitness” of commercial

motor vehicle operators and owners. See 49 C.F.R. Part 385. 

After an on-site inspection, a motor carrier receives a safety

fitness rating based on such factors as the adequacy of safety

management controls, the frequency and severity of regulatory

violations, and other considerations. See 49 C.F.R. §§ 385.7,

385.9.

In 2000, the Secretary delegated responsibility for

administering the safety fitness rating system to the Federal

Motor Carrier Safety Administration (FMCSA), an agency

within the Department of Transportation. See 49 U.S.C. § 322;

49 C.F.R. § 1.86. FMCSA also became responsible for

administering a database that contains in-depth information

about driver conduct and qualifications, vehicle maintenance

and inspection, crashes, and safety management systems and

procedures. That database, which the agency developed in the

mid-1990s to help it select motor carriers for on-site inspections,

became available to the public on the agency’s website in 1999,

under the name SafeStat. See Withdrawal of Proposed

Improvements to SafeStat and Implementation of CSMS, 75

Fed. Reg. 18,256, 18,257-58 (Apr. 9, 2010). It is one of three

relevant databases operated by FMCSA. The other two are the

Safety and Fitness Electronic Records database (SAFER), which

contains carriers’ safety fitness ratings, and the Licensing and

Insurance database (L&I), which provides information about the

insurance and operating-authority status of carriers.
4

On April 9, 2010, FMCSA announced that it would replace

SafeStat with a more comprehensive Safety Measurement

System (SMS) and solicited comments. The announcement of

the change was made in a Federal Register notice, which stated:

FMCSA announces that it will replace its Motor

Carrier Safety Status Measurement System (SafeStat)

with an improved Carrier Safety Measurement System

([]SMS) on November 30, 2010. . . . SafeStat is an

automated algorithm currently used by FMCSA to

identify high-risk and other motor carriers for on-site

compliance reviews. By implementing the new []SMS

algorithm, FMCSA will be able to better identify

high-risk motor carriers, make more efficient and

effective the Agency’s and its State partners’ allocation

of compliance and enforcement resources[,] and

provide the motor carrier industry and other safety

stakeholders with more comprehensive, informative,

and regularly updated safety performance data.

Id. at 18,256. Compared to its predecessor SafeStat, the Safety

Measurement System draws on a wider range of safety data,

including expanded law-enforcement data regarding citations,

warnings, and roadside inspections. Id. at 18,258. The data is

used to assign safety scores to individual carriers. See id. at

18,256-58. Safety Measurement System data does not, however,

affect carriers’ safety fitness ratings under 49 U.S.C. § 31144. 

See 75 Fed. Reg. at 18,257 (noting that FMCSA would

“continue to issue safety ratings in accordance with 49 CFR part

385-Safety Fitness Procedures”).

In December 2010, FMCSA proceeded with

implementation of the system. Shortly before that, three of the

petitioners in this case -- the National Association of Small

Trucking Companies, the Expedite Association of North
5

America, and the Air & Expedited Motor Carriers Association --

filed a petition in this court, seeking review of the Safety

Measurement System and an emergency stay of its

implementation. The petitioners alleged that the system should

be set aside because it amounted to “a new model for

compelling compliance and determining the safety fitness of

motor carriers,” and because “FMCSA ha[d] not provided

adequate notice and opportunity for comment,” as required by

the Administrative Procedure Act, 5 U.S.C. § 553. Motion for

Emergency Stay at 11, 13, Nat’l Ass’n of Small Trucking Cos. v.

FMCSA, No. 10-1402 (D.C. Cir. Nov. 29, 2010). After the court

denied the petitioners’ motion for a stay, the parties reached a

settlement, and the court granted the petitioners’ motion to

dismiss the petition. See Order, Nat’l Ass’n of Small Trucking

Cos. v. FMCSA, No. 10-1402 (D.C. Cir. Mar. 10, 2011).

Under the settlement agreement, FMCSA agreed to add the

following disclaimer to its website:

USE OF SMS DATA/INFORMATION

The data in the Safety Measurement System (SMS) is

performance data used by the Agency and Enforcement

Community. A Î symbol, based on that data, indicates that

FMCSA may prioritize a motor carrier for further monitoring.

The Î symbol is not intended to imply any federal safety rating of

the carrier pursuant to 49 USC 31144. Readers should not draw

conclusions about a carrier’s overall safety condition simply

based on the data displayed in this system. Unless a motor

carrier in the SMS has received an UNSATISFACTORY safety

rating pursuant to 49 CFR Part 385, or has otherwise been

ordered to discontinue operations by the FMCSA, it is authorized

to operate on the nation’s roadways. 

Motor carrier safety ratings are available at

http://safer.fmcsa.dot.gov and motor carrier licensing and

insurance status are available at http://li-public.fmscsa.dot.gov/
6

Pet’rs’ Addendum 3, at 6.

On May 16, 2012, FMCSA posted to its website PDFs of

the PowerPoint presentations and related documents (hereinafter

PowerPoint presentations) that petitioners seek to challenge in

this case. See J.A. 70-155. The presentations describe the types

of information the agency makes available to the public and

explain how to use the agency’s three online databases. Id. 

They also include the disclaimer that we have set out above. See

J.A. 150.

On July 16, 2012, the petitioners filed this action,

contending that the PowerPoint presentations constitute a new

legislative rule that the agency failed to subject to notice and

comment as required by the Administrative Procedure Act, 5

U.S.C. § 553, and to a regulatory flexibility analysis as required

by the Regulatory Flexibility Act, id. § 604. They also contend

that the presentations are arbitrary and capricious, inconsistent

with the Secretary of Transportation’s statutory obligations, and

unconstitutional. The petitioners maintain that this court has

jurisdiction over their challenges pursuant to the Hobbs Act, 28

U.S.C. § 2342(3)(A).

II

The Hobbs Act grants the courts of appeals exclusive

jurisdiction to set aside or determine the validity of certain

“rules, regulations, or final orders” of the Secretary of

Transportation. 28 U.S.C. § 2342(3).1 The petitioners maintain

that the PowerPoint presentations are reviewable under the

1

See also 49 U.S.C. § 351(a) (providing that an action taken

by FMCSA pursuant to delegated authority “may be reviewed

judicially to the same extent and in the same way as if the action

had been an action by the department”).
7

Hobbs Act as a “final order” of the Secretary. See Reply Br. 22. 

Even if that were so, however, the petitioners would still face

another hurdle. The Hobbs Act states that “jurisdiction is

invoked by filing a petition as provided by section 2344 of this

title,” 28 U.S.C. § 2342, and the cited section provides that an

aggrieved party may file a petition for judicial review of a final

order “within 60 days after its entry,” id. § 2344. We have held

that “[t]he 60-day period of the Hobbs Act is jurisdictional in

nature, and may not be enlarged or altered by the courts.” 

United Transp. Union-Ill. Legislative Bd. v. Surface Transp. Bd.,

132 F.3d 71, 75 (D.C. Cir. 1998) (internal quotation marks

omitted).2

The petitioners filed their petition for review on July 16,

2012. That date was within 60 days of the posting of the

PowerPoint presentations, but it was more than two years after

the April 2010 Federal Register notice and more than one year

after the Safety Measurement System was implemented in

December 2010. Although the petitioners’ opening brief did not

seriously address the 60-day clock, it was plainly on their mind. 

The brief characterizes the PowerPoint presentations as “new

and far-reaching,” Pet’rs’ Br. 1; “novel,” id. at 8; “astonishing,”

id., and a “sharp reversal of Agency policy,” id. at 48. But a

comparison of the 2010 Federal Register notice and the 2012

2

See Council Tree Commc’ns, Inc. v. FCC, 324 F. App’x 3,

4 (D.C. Cir. 2009) (“Under 28 U.S.C. § 2344, ‘[a]ny party

aggrieved by [a] final order’ . . . has only ‘60 days after its

entry’ to seek judicial review of the order.”); Vernal Enters., Inc.

v. FCC, 355 F.3d 650, 655 (D.C. Cir. 2004) (noting that a

petition not filed within 60 days “must be dismissed”); see also

Henderson ex rel. Henderson v. Shinseki, 131 S. Ct. 1197, 1204

(2011) (noting that “lower court decisions have uniformly held

that the Hobbs Act’s 60-day time limit for filing a petition for

review of certain final agency decisions . . . is jurisdictional”).
8

PowerPoint presentations makes clear that the latter do not

materially alter the former. Rather, as the agency maintains,

they “merely describe[] and explain[] the data compiled in the

agency’s existing Safety Measurement System,” which was

implemented in December 2010. Resp’ts’ Br. 29; see id. at 1-2.

The PowerPoint presentations run some 80 pages. The

petitioners advised the court at oral argument, however, that one

particular page best demonstrates how different the

presentations are from the Safety Measurement System as

portrayed in the 2010 Federal Register notice. See Oral Arg.

Recording at 31:30. That page, reproduced at Joint Appendix

153, looks like this:

i Summary

Three public sources of FMCSA data to provide an informed,

current, and comprehensive safety picture

1. Safety and Fitness Electronic Records (SAFER)

http://safer.fmcsa.dot.gov

2. Licensing & Insurance (L&I)

http://li-public.fmcsa.dot.gov

3. CSA’s Safety Measurement System (SMS)

http://ai.fmcsa.dot.gov/SMS

FMCSA believes that an examination of a motor carrier’s official

safety rating in SAFER and their authority and insurance status on

L&I, combined with their intervention prioritization status in CSA’s

SMS, provide users with an informed, current, and comprehensive

picture of a motor carrier’s safety and compliance standing with

FMCSA. FMCSA encourages the public to use the FMCSA

information available to help make sound business judgments.
9

The petitioners contend that this page differs from the 2010

notice in four ways.

First, the petitioners allege that the PowerPoint page

“encourage[s] trucking customers to utilize ‘public data’ filtered

through the same . . . SMS methodology that the Agency

previously had characterized as an internal ‘prioritization’ tool.” 

Pet’rs’ Br. 15. But the Federal Register notice did not say that

the Safety Measurement System would function solely as an

internal prioritization tool. Rather, it indicated that the system

would provide information to the public as well. See 75 Fed.

Reg. at 18,257-58 (“The new measurement system would be

used to identify high-risk motor carriers for on-site

investigations . . . . Furthermore, the new []SMS also would

provide motor carriers and other safety stakeholders such as

shippers with regularly updated safety performance assessments

through a public Web site . . . .” (emphasis added)).

Although the Federal Register notice did state that the

database had originally been used to prioritize agency

enforcement, the notice made clear that the new Safety

Measurement System was intended to do more. As the agency

explained: SMS’s predecessor, Safestat was

an automated algorithm currently used by FMCSA to

identify high-risk and other motor carriers for on-site

compliance reviews. By implementing the new []SMS

algorithm, FMCSA will be able to better identify

high-risk motor carriers . . . and provide the motor

carrier industry and other safety stakeholders with

more comprehensive, informative, and regularly

updated safety performance data.

Id. at 18,256 (emphasis added). Indeed, as the notice pointed

out, SafeStat itself “became available to the public” on
10

FMCSA’s website in 1999. Id. at 18,257. Thereafter “[m]otor

carriers, the insurance industry, shippers, safety advocates, and

other interested parties began routinely accessing SafeStat data

online for use in their own safety analysis and business

decisions.” Id. at 18,257-58.

Second, the petitioners contend that the PowerPoint page is

new because it advises transportation users to make their “own

‘business judgments’ about which carriers to utilize,” “instead

of” relying on FMCSA’s safety fitness determinations and

licensing. Pet’rs’ Br. 7, 16. In so doing, the petitioners assert

that the agency forfeited its statutory obligation “to credential a

carrier as safe,” instead requiring “the transportation user” to be

“[t]he new arbiter for fitness.” Id. at 7. 

This assertion does not accurately describe page 153 of the

Joint Appendix. That page does not encourage users to make

their own business judgments instead of relying on safety fitness

determinations; rather, it assumes that businesses make business

judgments, and it encourages them to use all of the available

information to do so. See J.A. 153 (stating that FMCSA

“believes that an examination of a motor carrier’s official safety

rating in SAFER and their authority and insurance status on

L&I, combined with their intervention prioritization status

in . . . SMS, provide users with an informed, current, and

comprehensive picture of a motor carrier’s safety and

compliance standing” (emphasis added)). This is nothing new. 

The 2010 notice said that the new SMS “would

provide . . . other safety stakeholders such as shippers with

regularly updated safety performance assessments through a

public Web site.” 75 Fed. Reg. at 18,257. It requires no leap of

logic to expect that such stakeholders would use that

information to make their own business judgments. Indeed, as

we have noted above, shippers and other safety stakeholders had
11

been using this data for “their own safety analysis and business

decisions” since 1999. Id. at 18,257-58 (emphasis added).

Third, the petitioners insist that this particular PowerPoint

page represents a new rule because, “[i]nstead of being able to

rely” on the motor carrier safety ratings (found in SAFER) and

the licenses granted to motor carriers (found in L&I), “the user

is now advised . . . to consider SMS scores at least co-equally

with safety ratings.” Pet’rs’ Br. 7.

Nothing on the PowerPoint page precludes users from

relying on the motor carrier safety ratings or license

determinations. To the contrary, they are the first two sources

of FMCSA data listed on the page. The page does not purport

to rank the three sources of information, although if it were read

as a ranking, it would appear to rank the SMS database last. See

J.A. 153. Nor does it advise the user to consider SMS scores

“co-equally.” It does encourage users to examine all three

sources of information, and it is a fair inference that the agency

believes that such an examination is needed to obtain “an

informed, current, and comprehensive picture of a motor

carrier’s safety and compliance standing.” Id. But there is

nothing new in that either. See 75 Fed. Reg. at 18,256 (stating

that SMS would “provide the motor carrier industry and other

safety stakeholders with more comprehensive, informative, and

regularly updated safety performance data”). 

Finally, the petitioners’ underlying complaint is that the

agency used the PowerPoint presentations to promulgate the

Safety Measurement System as a de facto “new safety fitness

determination standard[],” in derogation of the existing

standards promulgated by the agency pursuant to 49 U.S.C.

§ 31144(a). Pet’rs’ Br. 29; see id. at 36-38. But this complaint

is directly contradicted by the settlement disclaimer, which

states that the SMS “Î symbol is not intended to imply any
12

federal safety rating of the carrier pursuant to 49 USC 31144.” 

J.A. 150. As the petitioners acknowledge, the disclaimer is part

and parcel of the challenged PDFs. See Oral Arg. Recording at

29:50-30:20. Indeed, it comes just three pages before the page

that most offends the petitioners, under a banner headline

asking: “What are the limitations of SMS?” See J.A. 150, 153.

Although they have no problem with the language of the

disclaimer, the petitioners maintain that the PowerPoint

presentations effectively overwhelm the disclaimer’s message. 

Oral Arg. Recording at 30:00. In support, they point to

Appalachian Power v. EPA, in which we held (in a different

context) that, if a disclaimer’s language is mere “boilerplate,” it

cannot deprive an agency’s actions of binding effect and thereby

insulate those actions from judicial review. 208 F.3d 1015,

1023 (D.C. Cir. 2000). But unlike the agency disclaimer at issue

in Appalachian Power, the disclaimer at issue here is one upon

which the petitioners themselves insisted and that they

acknowledge is accurate. 

Nor is there anything on page 153 of the Joint Appendix

that negates the disclaimer’s message. To the contrary, that

page identifies “[t]hree public sources of FMCSA data,”

expressly differentiating between the SMS website, which

contains the Safety Measurement System scores, and the

SAFER website, which contains the safety fitness

determinations (SFDs). J.A. 153. Moreover, on the same page

as the disclaimer is further language -- not required by the

settlement and in larger font than the disclaimer -- that makes

precisely the point upon which the petitioners insist: “The SMS

data are not a SFD, do not alter a carrier’s safety rating, and do

not impact a carrier’s operating authority.” J.A. 150. We

therefore see no basis for the petitioners’ claim that FMCSA

used the PowerPoint presentations to effectively promulgate

SMS as a new safety fitness determination standard. 
13

* * *

The petitioners acknowledge, as they must, that their

challenge to the 2012 PowerPoint presentations is time-barred

if those presentations are fully consistent with FMCSA’s 2010

Federal Register notice. Oral Arg. Recording at 33:20; see 28

U.S.C. § 2344. Because the PowerPoint presentations do no

more than describe a Safety Measurement System that was

announced in that notice and put in place in December 2010, the

petition to review those presentations is untimely under the

Hobbs Act. 

III

The petitioners argue that we have authority not only to

review the PowerPoint presentations, but also to review the

underlying methodology employed by the Safety Measurement

System -- which they regard as arbitrary and capricious. We

have such authority, they maintain, because the PowerPoint

presentations are inextricably linked to that methodology. That

argument also fails. 

The petitioners cite Public Citizen v. Nuclear Regulatory

Commission for the proposition that, to “the extent that an

agency’s action necessarily raises the question of whether an

earlier action was lawful, review of the earlier action for

lawfulness is not time-barred.” Reply Br. 27 (quoting Public

Citizen, 901 F.2d 147, 151-52 (D.C. Cir. 1990) (internal

quotation marks omitted)). Although the petitioners do not

mention it, Public Citizen relies on the reopening doctrine. See

901 F.2d at 150. That doctrine “allows an otherwise stale

challenge to proceed because ‘the agency opened the issue up

anew,’ and then ‘reexamined . . . and reaffirmed its [prior]

decision.’” P & V Enters. v. U.S. Army Corps of Eng’rs, 516

F.3d 1021, 1023 (D.C. Cir. 2008) (quoting Public Citizen, 901
14

F.2d at 150-51). “The doctrine only applies, however, where the

entire context demonstrates that the agency has undertaken a

serious, substantive reconsideration of the existing rule.” Id. at

1024 (internal quotation marks omitted); see Am. Road &

Transp. Builders Ass’n v. EPA, 588 F.3d 1109, 1114-16 (D.C.

Cir. 2009); Nat’l Mining Ass’n v. U.S. Dep’t of Interior, 70 F.3d

1345, 1352 (D.C. Cir. 1995).

FMCSA did not undertake a substantive reconsideration of

the Safety Measurement System methodology when it published

the challenged PowerPoint presentations, nor do those

presentations alter that methodology. Rather, as we have

concluded above, the PowerPoint presentations merely

summarize and explain information concerning the Safety

Measurement System, which the agency implemented in 2010. 

Accordingly, the reopening doctrine is of no assistance to the

petitioners. The petitioners’ challenge to the Safety

Measurement System, like their challenge to the 2012

PowerPoint presentations, is effectively a challenge to the policy

FMCSA announced and implemented in 2010. That challenge

is time-barred by the Hobbs Act.

IV

For the foregoing reasons, the petition for review is

Dismissed.