Interpretation ID: GRACIA.2
Wayne F. Plaza, Esq.
Rooks, Pitts and Poust
10 South Wacker Drive
Suite 2300
Chicago, IL 60606
Re: Gracia v. Volvo Europa Truck, N.V.,
N.D. Ill., Civ. No. 87-C-10005
Dear Mr. Plaza:
This is in response to your letter dated September 6, 1996, which objected to my letter of August 27, 1996 to Arthur Bryant of Trial Lawyers for Public Justice. My letter included my interpretation, as Acting Chief Counsel of the National Highway Traffic Safety Administration (NHTSA), of certain provisions of 49 U.S.C. Chapter 301 as they relate to the above-referenced litigation.
One of my functions as Acting Chief Counsel is to issue interpretations of the statutes administered by NHTSA and the regulations adopted by the agency pursuant to those statutes. See 49 CFR 501.8(d); 61 Fed. Reg. 26468 (May 28, 1996). Thus, your assertion that my response to Mr. Bryant's request for an interpretation of the preemptive effect of Federal Motor Vehicle Safety Standard No. 212 under a particular set of facts was "beyond the scope of [my] office" is incorrect. Similarly, while the adoption of Federal motor vehicle safety standards pursuant to 49 U.S.C. 30111 can be analogized to a "legislative" process accompanied by public participation (as required by the Administrative Procedure Act (APA), 5 U.S.C. Part 553), the issuance of interpretations by an agency is not governed by the APA. Rarely if ever does NHTSA or another Federal agency seek public comment on a request for an interpretation like the one that led to my August 27 letter to Mr. Bryant.
The fact that Mr. Bryant's request was related to pending litigation does not affect NHTSA's handling of the request, and certainly imposes no duty upon the agency to seek the views of all parties in that litigation. Many interpretation requests seek the views of the agency on matters being litigated. While it is the policy of the agency not to express any view on the ultimate questions raised in such litigation, we do not refrain from interpreting our statutes and regulations merely because the interpretation could affect a pending lawsuit.
In this case, we promptly sent you, as well as counsel for the plaintiff, a copy of the interpretation, even though that is not required. (I am puzzled by your statement that your copy of the letter was postmarked August 30, 1996; to the best of my knowledge, it was placed in the outgoing mail tray in this office on August 27, the day it was signed.)
Consistent with the policy described above, my letter explicitly declined to take a position on the ultimate questions at issue in this litigation, and noted that the interpretation was necessarily based on the facts presented by Mr. Bryant. Please note, however, that Mr. Bryant enclosed with his request copies of the Motion for Summary Judgment filed by your client, Volvo Europa Truck, N.V.; the plaintiff's memorandum in response to your motion; the Report and Recommendation issued by Magistrate Judge Pallmeyer; Volvo's objections to Magistrate Pallmeyer's Report; and the Memorandum Opinion and Order issued by Judge Plunkett of the Northern District of Illinois. Thus, I believed at the time, and still believe, that I had sufficient awareness of the relevant facts to issue the interpretation.
Of course, to the extent that the interpretation is based upon an incorrect understanding of the relevant facts, such a misunderstanding would decrease the relevance of the interpretation to the pending litigation. However, it would not undermine the validity of the interpretation under the facts as I understood them. If you believe the relevant facts are not accurately or completely set forth in the documents provided by Mr. Bryant, I will be happy to consider whether any such new facts would change my interpretation.
In conclusion, while it is perfectly legitimate for you to disagree with the interpretation set forth in my August 27 letter, that letter was an appropriate exercise of my authority as Acting Chief Counsel. I therefore decline to adopt your request that I "formally withdraw" that letter.
Sincerely,
John Womack
Acting Chief Counsel
cc: Arthur H. Bryant, Esq.
Bruce R. Pfaff, Esq.
ref:VSA
d:10/10/96