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(Continued from page 4)
turn, was responding to pressure from the auto manufacturers. The four-tire, 25 percent option requires a direct TPMS. The single-tire, 30 percent option only requires an indirect TPMS. Direct TPMSs are more effective but cost more.
Direct TPMSs use tire pressure sensor in each tire to transmit pressure information to a receiver. Current indirect TPMSs rely on the wheel speed sensors in an anti-lock braking system (ABS) to detect and compare differences in the rotational speed of a vehicle's wheels. Those differences correlate to differences in tire pressure because decreases in tire pressure cause decreases in tire diameter that, in turn, cause increases in wheel speed.
Public Citizen, New York Public Interest Research Group and the Center for Auto Safety have asked the U.S.Court of Appeals for the Second Circuit to review the final rule, claiming that: (1) the indirect system does not detect underinflation of two or four tires simultaneously underinflated, does not work on bumpy roads, and does not work until the vehicle has been driven for at least 10 minutes; (2) that the cost differential between direct systems and indirect systems is marginal; and (3) that, therefore, the final rule is arbitrary and capricious.
The final rule applies to passenger cars, trucks, multipurpose passenger vehicles, and buses with a gross vehicle weight rating of 10,000 pounds or less, except those vehicles with dual wheels on an axle. 49 C.F.R. § 571.138.
The two options apply from November 1, 2003, to October 31, 2006. A final rule for November 1, 2006, and beyond will be established and announced by March 1, 2005. In the meantime, the agency will leave the rulemaking docket open for the submission of new data and analyses concerning the performance of TPMSs, including both the systems in the field as well as systems under development and conduct a study comparing the tire pressures of vehicles with no TPMS to the pressures of vehicles with the different systems.
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(Immunity from page 1)
Services). Maritime Services filed a complaint with the Federal Maritime Commission (FMC) contending that the SCSPA's refusal to provide berthing space to the M/V Tropic Sea violated the anti-discrimination provisions of the Shipping Act of 1984, 46 U.S.C. App. § 1701 et seq. (1994 ed. and Supp V). The relief sought included reparations to Maritime Services. SCSPA filed a motion to dismiss on the ground that as an arm of the State of South Carolina it was entitled to immunity.
The FMC administrative law judge (ALJ) hearing the complaint held that recent Supreme Court decisions interpreting the 11th Amendment and State sovereign immunity from private suits under Article III of the Constitution required dismissal of Maritime Services' administrative complaint under Article I. Acting on its own motion, the FMC reversed the ALJ's ruling, holding that the doctrine of state sovereign immunity is meant to cover proceedings before judicial tribunals, not executive branch administrative agencies. The Fourth Circuit reversed the FMC, reasoning that a private complaint proceeding before the FMC so resembles a lawsuit that its status as an executive branch proceeding is beside the point. The Court of Appeals concluded that in any proceeding where a federal officer adjudicates disputes between private parties and unconsenting states, what is important is not the nature of forum but, rather, whether the proceeding would have passed muster at the time of the Constitution's passage and after ratification of the 11th Amendment.
The Supreme Court framed the issue as one of respect for States as individual sovereigns immune from private suit, who in ratifying the Constitution had only consented to suits brought by other States and suits brought by the federal government. The Court did not view the 11th Amendment as defining the full contours of State immunity but merely undoing the Court's error in Chisholm v. Georgia, 2 Dall. 419 (1793), in which it held that Article III authorized citizens of one State to sue another State in federal court. Accord
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ingly, the Court saw its task as determining "whether the sovereign immunity embedded in our constitutional structure and retained by the States when they joined the Union extends to FMC adjudicative proceedings."
Because the relevant history did not provide direct guidance for the Court's inquiry, it turned to a presumption announced in Hans v. Louisiana, 134 U.S. 1 (1890), that the Constitution was not intended to "raise up" any proceedings against the States that were "anomalous and unheard of when the Constitution was adopted." The Court then examined FMC adjudications to determine whether they are the type of proceedings to which the Hans presumption applies.
The Court first noted the general similarities between ALJs and trial judges in terms of function, powers, and independence, and the common features shared by administrative adjudications and judicial proceedings (adversarial hearings with rules of procedure and evidence, transcripts, and written findings and conclusions). The Court then reviewed the FMC's Rules of Practice and Procedure and the role of FMC ALJs in conducting trial-type proceedings, and found the similarities between FMC proceedings and civil litigation "overwhelming." Given these "strong similarities" and the "preeminent purpose of state sovereign immunity . . . to accord States the dignity that is consistent with their status as sovereign entities," the Court held that "state sovereign immunity bars the FMC from adjudicating complaints filed by a private party against a nonconsenting State."
The implications for federal transportation law should not be all that dire. The decision does not disturb the ability of the FMC and other federal transportation agencies to conduct investigations of State violations of federal transportation law and enforce those laws against the States in federal court. To the extent enforcement does depend on the efforts of private attorneys general, many State agency statutes expressly waive sovereign immunity, and municipal agencies generally have no sovereign immunity to assert.
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