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CENTER FOR AUTO SAFETY v. DOLE

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA


June 29, 1984

CENTER FOR AUTO SAFETY, ET AL., Plaintiffs,
v.
ELIZABETH H. DOLE, ET AL., Defendants; CONSOLIDATED FREIGHTWAYS, ET AL., Plaintiffs v. ELIZABETH H. DOLE, ET AL., Defendants

The opinion of the court was delivered by: GESELL

MEMORANDUM AND ORDER

 These consolidated cases challenge interim regulations promulgated by the Secretary of Transportation pursuant to the Surface Transportation Assistance Act of 1982 (STAA), Pub. L. No. 97-424, 96 Stat. 2097 (1983), as amended, designating certain highways on which longer and wider trucks may operate nationwide. 48 Fed. Reg. 14,844 (April 5, 1983). On March 27, 1984, this Court filed a Memorandum and Order denying motions for preliminary injunctions brought by plaintiffs in each case. *fn1" 582 F. Supp. 1444. Plaintiffs in Civil Action No. 83-3885 (collectively "Center for Auto Safety") have now moved for summary judgment. Defendants oppose and have moved to dismiss both cases, contending that all issues raised herein are now moot in view of new regulations published June 5, 1984, which establish "final" designations of highways. 49 Fed. Reg. 23,302 All parties have had opportunity to address these motions both in writing and in oral argument before the Court.

 The final regulations have completely superceded the interim regulations, which are now a "dead letter" and have no force or effect. The final regulations are based on a different administrative record which is not before the Court. The highways designated by the final regulations differ to some degree from those in the interim regulations. Moreover, in certain respects, at least, the rationale offered by the Secretary in support of the new regulations differs significantly from that put forth in the interim regulations. Finally, the legal standards which governed the interim designations may differ from those which govern the final designations. *fn2" It is clear, therefore, that the validity of the final regulations, which is not at issue in the present proceeding, presents a different case than the validity of the interim regulations.

 Plaintiffs argue that the final regulations perpetuate the same legal deficiencies they contend infected the interim regulations. A variety of new and different issues will also be presented by the final regulations, however, and the mere possibility that the interim and final regulations may share some of the same general shortcomings does not keep the controversy as to the interim regulations alive. The reasoning of the Court of Appeals in a recent case which presented somewhat similar circumstances makes this clear.

 

The Department's promulgation of No. 150, which rescinded No. 66, presents a new case. The Treasury's most recent action was the product of a third rulemaking proceeding; it was a different regulation, containing on its face reasoning not previously articulated by the agency as its policy. In addition, No. 150 contains substantive provisions different from those of its predecessors. Whether these differences give rise to a legal distinction between No. 150 and No. 94 remains to be seen. Any person complaining of the procedures of No. 150 should attack it by a separate action . . . .

 Center for Science in the Public Interest v. Regan, 234 U.S. App. D.C. 62, 727 F.2d 1161, 1166 (D.C. Cir. 1984).

 This is not a case which is "capable of repetition, yet evading review." See 727 F.2d at 1167 n.6. "Final" regulations are now in effect. Moreover, the Secretary was not only "legitimately empowered to initiate further rulemaking," 727 F.2d at 1164-65, but issued the final regulations pursuant to a statutory requirement that she do so, albeit in an untimely fashion. There are no grounds, therefore, for continuing to litigate interim regulations no longer in effect. To do so would simply result in an advisory ruling, not the resolution of a live controversy.

 The present dispute over the interim regulations is moot. If the final regulations now in effect are to be challenged, this must be done in a new, unrelated proceeding. Accordingly, plaintiffs' motion for summary judgment is denied, defendants' motion to dismiss Civil Action No. 83-3885 is granted, and the case is dismissed. *fn3"

 Plaintiffs in Civil Action No. 84-0136 do not oppose defendants' motion to dismiss their case as moot. This motion is granted and Civil Action No. 84-0136 is also dismissed.

 SO ORDERED.


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