194 F.3d 767 (6th Cir. 1999)
Arctic Express, Inc., Petitioner,v.United States Department of Transportation, Federal Highway Administration, Respondent.
No. 98-3182
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
Argued: June 18, 1999Decided and Filed: October 19, 1999

On Appeal from the United States Department of Transportation, Federal Highway Administration; No. FHWA-97-2519
David A. Ferris,  FERRIS & FERRIS, Columbus, Ohio, Anthony J. McMahon, Bethesda, Maryland, for Petitioner.
Michael Jay Singer, Constance A. Wynn, U.S. DEPARTMENT OF  JUSTICE, CIVIL DIVISION, APPELLATE STAFF, Washington, D.C., for Respondent.
Before: KRUPANSKY, RYAN, and SUHRHEINRICH, Circuit Judges.
OPINION
RYAN, Circuit Judge.


1
This is an appeal from an order of the Federal Highway Administration requiring the petitioner,  Arctic Express, Inc., to pay a $20,000 civil penalty for regulatory violations involving (1) use of drivers who had falsified  their duty status logs and (2) failure to examine each driver's daily duty status logs for completeness, truthfulness, and  accuracy in accordance with a 1993 consent order. Arctic claims that its liability was determined according to regulatory standards that were not promulgated in compliance with the Administrative Procedure Act, see 5 U.S.C. § 553, and which  imposed an unlawful and unconstitutional standard of strict liability. Arctic also claims that the Federal Highway  Administration's decision is not in accordance with the law or supported by substantial evidence.


2
We do not decide Arctic's statutory and constitutional challenges that improper standards were used to test the  lawfulness of its conduct because Arctic did not present these challenges to the administrative tribunal, and now offers no  satisfactory reasons for not having done so. Likewise, we do not decide Arctic's challenge to the so-called "notice and  comment" issue because Arctic's challenge is untimely under the Hobbs Act, 28 U.S.C. § 2344. However, we conclude that  the decision of the Associate Administrator is not supported by substantial evidence because it was not rendered in  accordance with the administrative regulations governing the admissibility of evidence in such proceedings. Thus, for the  reasons that follow, we vacate the Associate Administrator's decision.

I.

3
The regulatory violations charged against Arctic arose out of a Notice of Claim and Notice of Investigation filed by the  Federal Highway Administrator on February 11, 1994, listing 33 counts and assessing penalties against Arctic in the  amount of $23,500. In its reply Arctic admitted certain counts and denied others, contested the civil penalty, and requested  an oral hearing. The Regional Director opposed the request for hearing on the ground that no issues of material fact were  presented, and sought a final order in its favor. The Associate Administrator denied the request for entry of a final order  and granted the request for an oral hearing in an Order Appointing Administrative Law Judge. The Regional Director, by  motion dated November 25, 1997, sought clarification and reconsideration of the Associate Administrator's order. In response, and without an oral hearing, the Associate Administrator issued a final opinion and order on January 21, 1998.  Consequently, no hearing was ever held before an administrative law judge.


4
In his January 21 opinion and order, the Associate Administrator assessed a $20,000 civil penalty against Arctic for 20  violations of 49 C.F.R. § 395.8(e), and 10 violations of 49 C.F.R. § 386.22. Section 395.8(e) provides for "prosecution" of  drivers or motor carriers who fail to comply with the drivers' duty status log requirements or who falsify the logs. Section  386.22 and section 386.82 address consent orders and civil penalties for violations of notices and orders. The penalties  associated with § 395.8 were assessed because Arctic used drivers who had falsified records of duty status. The penalties  associated with § 386.22 and § 386.82 were assessed because Arctic failed to comply with section 3B of the 1993 consent  order, requiring that Arctic examine each driver's daily record of duty status for completeness, accuracy, truthfulness, and  compliance with 49 C.F.R. § 395.3 (Maximum driving time). The three remaining counts were, in due course, voluntarily  dismissed by the Highway Administration.


5
The arguments submitted to the Associate Administrator focused on whether the evidence was sufficient to prove that  Arctic engaged in unreasonable or negligent conduct when it used drivers who had falsified their logs, or when it failed to  properly examine the logs as required by the consent order. Here, in addition to its challenge to the sufficiency of the  evidence, Arctic maintains that the Highway Administration has subjected Arctic to a standard of strict liability pursuant to  certain Questions and Answers, specifically nos. 7, 8, and 21 of the agency's "Regulatory Guidance."

II.
A.

6
Arctic claims that the civil penalties were imposed unlawfully and unconstitutionally,and it maintains that it preserved  this challenge below by its argument that its conduct was reasonable. The imposition of civil penalties for violations of  regulations promulgated by the Secretary of Transportation is governed by 49 U.S.C. § 521. Section 521(b)(8) governs  petitions for review of final orders of the Secretary issued under § 521 and provides that "[n]o objection that has not been  urged before the Secretary shall be considered by the court, unless reasonable grounds existed for failure or neglect to do  so." Administrative exhaustion


7
is generally required as a matter of preventing premature interference with agency processes, so that the agency may  function efficiently and so that it may have an opportunity to correct its own errors, to afford the parties and the  courts the benefit of its experience and expertise, and to compile a record which is adequate for judicial review.


8
Weinberger v. Salfi, 422 U.S. 749, 765 (1975). The administrative exhaustion doctrine exists "to permit an administrative  agency to apply its special expertise in interpreting relevant statutes and in developing a factual record without premature  judicial intervention." Southern Ohio Coal Co. v. Donovan, 774 F.2d 693, 702 (6th Cir. 1985). While we have also stated  that if "the purposes behind the exhaustion of administrative remedies doctrine are not served, exhaustion will not be  required," Central States, Southeast and Southwest Areas Pension Fund v. 888 Corporation, 813 F.2d 760, 764 (6th Cir.  1987), the Supreme Court has explained that congressional intent is of "'paramount importance' to any exhaustion inquiry"  such that "[w]here Congress specifically mandates, exhaustion is required," McCarthy v. Madigan, 503 U.S. 140, 144  (1992) (citation omitted). Where Congress has not mandated exhaustion, the exercise of jurisdiction is governed by "sound  judicial discretion." Id. The McCarthy Court went on to discuss at length the appropriate inquiries surrounding such an  exercise of discretion, and concluded that exhaustion was not required under the circumstances presented there. However,  the Court was quite clear in its explanation that it undertook that discussion only after finding "[a]s a preliminary matter . .  . that Congress ha[d] not meaningfully addressed the appropriateness of requiring exhaustion in [the relevant] context." Id. at 149. Indeed, the Tenth Circuit recently observed in Garrett v. Hawk, 127 F.3d 1263, 1264-65 (10th Cir. 1997), that  Congress overruled McCarthy when it amended the applicable statute to specifically require exhaustion of administrative  remedies by prisoners seeking "Bivens relief" in federal court.


9
Courts have waived the exhaustion requirement where constitutional issues are asserted. See, e.g., Gilbert v. National  Transp. Safety Bd., 80 F.3d 364, 367 (9th Cir. 1996). However, the Ninth Circuit explained further:


10
A petitioner . . . may not obtain judicial review simply by invoking the term "due process." . . . [D]ue process "is  not a talismanic term which guarantees review in this court of procedural errors correctable by the administrative  tribunal." If the alleged constitutional violation amounts to a mere procedural error, which the NTSB could have  remedied if properly presented to the NTSB, a petitioner may not obtain judicial review by asserting the error  amounted to a deprivation of due process.


11
Id. (citation omitted).


12
Because § 521(b)(8) specifically prohibits the court from hearing an objection to a civil penalty imposed under § 521  that was not raised below, this court does not have jurisdiction to hear new claims on appeal unless reasonable grounds  existed for the failure or neglect to do so. Arctic offers no explanation for its failure to challenge the Questions and  Answers below, instead arguing that the issue was preservedbecause Arctic argued that it took reasonable steps to ensure  compliance and that the evidence did not support a finding of negligence. However, the fact that Arctic did not prevail on  its argument below that its conduct was reasonable, i.e., not negligent, does not compel the conclusion that the penalties  were imposed according to a standard of strict liability. Arctic did not challenge the Questions and Answers below, and it  never mentioned "strict liability" or "absolute liability" in the papers it filed with the Associate Administrator. It simply  argued that its conduct was reasonable under the circumstances. Moreover, in the portion of its reply brief in which it  responds to the Highway Administrations's jurisdictional arguments, Arctic fails to identify even a single case supporting  the proposition that its references below to the reasonableness of its conduct preserve an argument on appeal that addresses  imposition of a strict liability standard. Arctic made no attempt to explain how or if its due process claim is sufficiently  colorable to defeat the exhaustion doctrine. Thus, we conclude that we lack jurisdiction to correct any alleged defect in the  alleged application of the Questions and Answers during the administrative proceedings.

B.

13
Arctic also claims that the challenged Questions and Answers violate the notice and comment rule-making  requirements of the Administrative Procedure Act. See 5 U.S.C § 553. This court has jurisdiction over the exercise of the  powers and duties of the Secretary of Transportation under 49 U.S.C. § 351. The Hobbs Act, under 28 U.S.C. §2342,  provides that the United States Courts of Appeals have exclusive jurisdiction to set aside rules, regulations, or final orders  of the Secretary of Transportation issued pursuant to part B of Subtitle IV of Title 49, which, among other things,  enumerates the powers of the Secretary over motor carriers. Section 2344 provides that "[a]ny party aggrieved by [a] final  order [reviewable under the Hobbs Act] may, within 60 days after its entry, file a petition to review the order in the court  of appeals wherein venue lies." 28 U.S.C. § 2344.


14
We have not directly addressed the issue whether, under the Hobbs Act, this court has jurisdiction over a notice and  comment challenge to an administrative rule after expiration of the 60 days. However, in JEM Broadcasting Co. v. FCC,  22 F.3d 320 (D.C. Cir. 1994), the petitioner, JEM, sought judicial review of "hard look" rules promulgated by the FCC  after the time under the Hobbs Act had expired, claiming that the rules were invalid because they violated the notice and  comment requirement. JEM argued that it could not have challenged the rules before the FCC applied them to JEM's  detriment because JEM was not then an aggrieved party. Id. at 324. The D.C. Circuit rejected this argument, characterizing  it as a "back door" attack on the "procedural genesis" of the rule in the context of an enforcement action. Id. Similarly, in Florilli Corp. v. Pena, 118 F.3d 1212 (8th Cir. 1997), the court dismissed a notice and comment challenge to the Highway  Administration's carrier rating rules, explaining that "[a]lthough a party may challenge the substantive validity of an  agency's rules outside of the sixty-day period, challenges to the procedural genesis of administrative rules must conform to  the time limitation under the Hobbs Act." Id. at 1214 (citation omitted). The court rejected the argument that the petitioner  was not sufficiently aggrieved before detrimental application of the rule because it considered a party "'aggrieved,' giving  the party standing to appeal an agency decision, where . . . the agency provided no forum for the party to participate in the  proceedings through which the agency created the contested provisions." Id.


15
The Regulatory Guidance was published in the Federal Register on April 4, 1997. The latest date for a challenge of this  type, therefore, was on or about June4, 1997. The first time Arctic asserted the challenge was August 31, 1998. Assuming,  without deciding, that the Questions and Answers are final orders, regulations, or rules that Arctic may challenge in court,  rather than interpretive rules, policy statements, or rules of practice, see 5 U.S.C. § 553, as in JEM Broadcasting and Florilli, Arctic's notice and comment challenge must fail because it was asserted long after the expiration of the 60-day  time limitation.

III.

16
Arctic argues that the decision below should be set aside because the agency did not comply with 49 C.F.R. § 386.49 by  submitting affidavits with its documentary evidence when it moved for a final order.


17
We review the findings and conclusions of the Associate Administrator to determine whether they "were supported by  substantial evidence, or were otherwise not in accordance with law." 49 U.S.C. § 521(b)(8). We defer to an administrative  agency's interpretation of its own rule or regulation unless it is plainly erroneous or inconsistent with the regulation. SeeBowles v. Seminole Rock & Sand Co., 325 U.S. 410, 414 (1945); Navistar Int'l Transp. Corp. v. United States EPA, 858  F.2d 282, 288 (6th Cir. 1988). The law governing the evidentiary issue before us today, 49 C.F.R. §386.49, provides that  affidavits are required where written evidence is submitted:


18
All written evidence shall be submitted in the following forms:


19
(a) An affidavit of a person having personal knowledge of the facts alleged, or


20
(b) Documentary evidence in the form of exhibits attached to an affidavit identifying the exhibit and giving its  source.


21
49 C.F.R. § 386.49.


22
In In re WDP Transportation, Inc., 58 Fed. Reg. 16916, 16933 (1993), the Associate Administrator found fatal defects  in a Highway Administration's case because it was not supported by affidavits or other evidence. According to the  Highway Administration, this resulted in the practice of not requiring affidavits. However, in this case, the Associate  Administrator reversed that practice prospectively, while allowing it to continue in cases already filed if the "other  evidence" was sufficient to make out a prima facie case of regulatory violations.


23
The Highway Administration's "practice" of not requiring affidavits under WDP Transportation was plainly erroneous  and wholly unsupportable under the express terms of the regulation. Thus, because evidence was submitted according to a  plainly erroneous interpretation of the regulation, and the penalties were assessed wholly on the basis of that evidence, the  penalties are not in accordance with the law. Because the evidence is inadmissable under the regulation without the  affidavits, the decision below is not supported by substantial evidence. The Associate Administrator gave no rationale for  his decision to give reversal of the old practice only prospective effect. Although the Associate Administrator recognized  the error and reversed the practice prospectively, he refused to grant Arctic the benefit of the rule. The penalties appear to  be justified; however, we will not adhere to the Highway Administration's plainly erroneous interpretation of the  regulation. Therefore, we VACATE the decision below because it is not supported by substantial evidence or in  accordance with the law where the evidence submitted did not conform to the requirements of the governing regulation.

