                  United States Court of Appeals
                    FOR THE EIGHTH CIRCUIT



                         No. 96-2507


The Florilli Corporation,       *
                                *
              Petitioner;       *
                                * Petition for Review of an
Order
         v.                     * of      the      United   States
Department
                                * of Transportation, Federal
Highway
Frederico Pena, Secretary of* Administration.
Transportation; United States
                            *
Department of Transportation;
                            *
Federal Highway Administration;
                            *
                            *
         Respondent.        *


               Submitted:    February 10, 1997

                              Filed: June 26, 1997


Before MCMILLIAN, HEANEY, and FAGG, Circuit Judges.


HEANEY, Circuit Judge.

    The Florilli Corporation (“Florilli”) challenges the
validity of the “unsatisfactory” motor-carrier rating it
received from the Federal Highway Administration (“FHWA”).
Florilli asserts that its rating is invalid because the
FHWA failed to follow notice and comment requirements in
establishing the criteria by which the FHWA determines a
carrier’s rating. Because Florilli failed to bring its
challenge to the procedural genesis of the FHWA’s rules in
a timely manner, we dismiss Florilli’s request for relief.

                                           I.

    On April 22, 1994, the FHWA conducted a motor-carrier
safety audit of Florilli. Florilli is a trucking company
based in West Liberty, Iowa. In evaluating Florilli, the
FHWA used its Safety Fitness Rating Methodology (“SFRM”),
established in its present form in December 1993 pursuant
to the Safety Fitness Procedures found in 49 U.S.C. § 385.
Although Florilli had previously received "satisfactory"
ratings, the FHWA notified Florilli on August 10, 1994
that as a result of regulatory violations found during an
April 22nd audit, Florilli had been given a rating of
“unsatisfactory.”1 On September 19, 1994, Florilli filed
a Petition for Review of its safety rating pursuant to 49
C.F.R. § 385.15, which the FHWA denied. On October 13,
1995, the FHWA conducted another compliance review of
Florilli and again assigned Florilli a rating of




   1
    The FHWA cited the following violations and regulations as the reason for Florilli's
rating: (1) failure to require the drug testing of a driver-applicant whom the carrier
intended to hire or use (49 C.F.R. § 391.103(a)); (2) requiring or permitting a driver to
drive more than ten hours (id. § 395.3(a)(1)); (3) requiring or permitting a driver to
drive after having been on duty more than seventy hours in eight consecutive days (id.
§ 395.3(b)); and (4) maintaining false reports of duty status records (id. § 395.8(e)).
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unsatisfactory.2 The FHWA notified Florilli of its rating
by a letter mailed to the carrier on October 20, 1995.

    Florilli initiated this suit seeking a declaratory
judgment that the regulations and internal rules employed
by the FHWA in assigning Florilli’s “unsatisfactory”
ratings were invalid. Florilli primarily argues that the
SFRM, promulgated without the notice and comment
procedures outlined by the Administrative Procedures Act
(APA), 5 U.S.C. § 553 (1994), has the characteristics of
a “legislative” rule which requires notice and comment
safeguards rather than an “interpretive” rule, which is
exempt from those requirements. The district court held
that the Court of Appeals has exclusive jurisdiction over
Florilli’s claim and transferred the matter to our court.
Florilli again asserts that the FHWA’s rules are invalid.
The FHWA responds that the challenged rules are
interpretive and therefore not subject to the notice and
comment requirements of the APA. In any event, the FHWA
argues that Florilli’s challenge is untimely under the
Hobbs Act, 28 U.S.C. § 2344 (1994).


   2
    Following the October 1995 review, the FHWA cited the following violations and
regulations: (1) failure to maintain an accurate or proper accident register (49 C.F.R.
§ 390.15(b)); (2) making fraudulent statements or records (id. § 390.35); (3) using a
driver who tested positive for the use of controlled substances (id. § 391.11(b)(6)); (4)
requiring or permitting a driver to drive more than ten hours (id. § 395.3(a)(1)); (5)
requiring or permitting a driver to drive after having been on duty fifteen hours (id. §
395.3(b)); (6) requiring or permitting a driver to drive after having been on duty more
than seventy hours in eight consecutive days (id. § 395.3(b)); (8) maintaining false
reports of record of duty status (id. § 395.8(e)); (9) failure to require a driver to prepare
a proper record of duty status (id. § 395.8 (f)); (10) failure to forward record of duty
status within thirteen days (id. § 395.8(I)); and (11) failure to preserve driver records
of duty status supporting documents for six months (id. § 395.8(k)(1)).
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                           II.

    Before we consider the merits of Florilli’s challenge
to the validity of the SFRM, we must determine whether
Florilli presented its challenge in a timely manner. We
hold that Florilli’s request for relief is not timely and
is therefore dismissed.

    The    sixty-day   limitation   on    challenges   to
administrative   rules   under  the   Hobbs   Act   is  a
jurisdictional requirement that may not be waived or
modified by this court. United States Dep’t of Agric. v.
Kelly, 38 F.3d 999, 1003 (8th Cir. 1994).      Although a
party may challenge the substantive validity of an
agency’s rules outside of the sixty-day period, Tri-State
Motor Transit Co. v. ICC, 739 F.2d 1373, 1375 n.2 (8th
Cir. 1984), challenges to the procedural genesis of
administrative rules must conform to the time limitation
under the Hobbs Act time. JEM Broad. Co. v. FCC, 22 F.3d
320, 324 (D.C. Cir. 1994); Asphalt Roofing Mfg. Ass’n v.
ICC, 567 F.2d 994, 1005 (D.C. Cir. 1977).

    Florilli challenges the sixty-day limitation on
appeals of the procedural genesis of a rule.      Florilli
argues that the requirement is unfair because it prevents
a party not affected by the rule within the first sixty
days from challenging the rule’s validity. Florilli
asserts that such a party would not have standing to bring
a procedural challenge until the rule has applied to it.
On the contrary, this court considers a party “aggrieved,”
giving the party standing to appeal an agency decision
where, as here, the agency provided no forum for the party
to participate in the proceedings through which the agency

                            4
created the contested provisions.     North American Sav.
Ass’n v. Federal Home Loan Bank, 755 F.2d 122, 125-26 (8th
Cir. 1985) (quoting National Resources Defense Council v.
Nuclear Regulatory Comm’n, 666 F.2d 595, 601-02 n.42 (D.C.
Cir. 1981)).

    The FHWA promulgated the SFRM in its present form in
December 1993.   Florilli did not challenge the FHWA’s
methodology until January 1996, over two years




                            5
later.   In essence, Florilli does not challenge the
validity of the substance of the FHWA’s regulations.
Therefore, Florilli’s failure to meet the Hobbs Act’s
sixty-day time limitation prevents us from considering
Florilli’s   challenge    to   the   validity of   its
“unsatisfactory” safety rating by the FHWA.

                            III.

    Because Florilli failed to bring its challenge to
the validity of the procedural genesis of the rules
under which the FHWA determined Florilli’s
“unsatisfactory” safety rating within the sixty-day time
limitation under the Hobbs Act, we are without
jurisdiction to entertain the matter. Accordingly,
Florilli’s request for relief is dismissed.

    A true copy.

           Attest.

               CLERK, U.S. COURT OF APPEALS, EIGHTH
CIRCUIT.




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