The National Traffic and Motor Vehicle Safety Act of 1966 treats all vehicles equally regardless of where they are sold or registered. There is no specific statutory provision providing for recalling vehicles in one part of the country and not another. For the first 25 years of its history enforcing the Safety Act, NHTSA required manufacturers to do national recalls. Given the mobility of society with cars traveling from one area to another, regional recalls made little sense if safety was a priority. Yet after 25 years of every state recalls, NHTSA in the mid-1980s changed course and began to allow geographic recalls.
In 1998, NHTSA issued policy guidelines in the form of letters from Kenneth N. Weinstein, NHTSA Associate Administrator for Safety Assurance, to auto companies. The 1998 policy guidelines approved the practice of regional recalls where vehicles were subject to exposure different from the rest of the United States. The Weinstein letters distinguished 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. In the case of the single event defect, the agency indicated a regional recall was not appropriate. 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.
The Center for Auto Safety and Public challenged the agency’s decision to allow regional recalls but were rebuffed.Â Center for Auto Safety v. National Highway Traffic Safety Administration, 452 F.3d 798 (D.C. Cir. 2006), upholding 342 F.Supp. 1 (2004) The courts found there was no final agency action to challenge:
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. at 810.
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, 117 S.Ct. 1154 (emphasis added) Id. at 811.
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. Id.