Radio Ass'n on Defending Airwave Rights, Inc. v. U.S. Dept. of Transp, Federal Highway Admin.

• Decision Date: 17 February 1995
• Docket Number: No. 94-3140,94-3140
• Citation: 47 F.3d 794
• Parties: RADIO ASSOCIATION ON DEFENDING AIRWAVE RIGHTS, INC.; Frank Figuero, Petitioners, v. UNITED STATES DEPARTMENT OF TRANSPORTATION, FEDERAL HIGHWAY ADMINISTRATION, Respondent.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 794

47 F.3d 794

RADIO ASSOCIATION ON DEFENDING AIRWAVE RIGHTS, INC.; Frank Figuero, Petitioners, v. UNITED STATES DEPARTMENT OF TRANSPORTATION, FEDERAL HIGHWAY ADMINISTRATION, Respondent.

No. 94-3140.

United States Court of Appeals Sixth Circuit.

Argued Jan. 27, 1995.

Decided Feb. 17, 1995.

Steven P. Resnick (argued and briefed), Annapolis, MD, and David B. Sloan, O'Hara, Ruberg & Taylor, Covington, KY, for petitioners.

Katherine S. Gruenheck (argued and briefed), and Robert V. Zener, U.S. Dept. of Justice, Appellate Staff, Civ. Div., Washington, DC, for respondent.

K. Michael O'Connell (briefed), Collier, Shannon, Rill & Scott, Washington, DC, W. Gary Blackburn (briefed), Blackburn & Slobey, Nashville, TN, Kenneth E. Siegel (briefed), Alexandria, VA, Michele M. Fields (briefed), Ins. Institute for Highway Safety, Arlington, VA, and Henry M. Jasny (briefed), Washington, DC, for amici curiae.

Before: JONES and MILBURN, Circuit Judges; and COHN, ^* District Judge.

MILBURN, Circuit Judge.

Petitioners Radio Association on Defending Airwave Rights, Inc. (RADAR) and Frank Figuero, a commercial motor vehicle operator, petition this Court to review, enjoin, and set aside a regulation of the Federal Highway Administration prohibiting the use of radar detectors in commercial motor vehicles. On petition for review, the issues are: (1) whether the agency arbitrarily and capriciously promulgated the rulemaking, based on evidence in the administrative record, (2) whether the agency failed to adequately conduct a cost assessment of the rulemaking, (3) whether the agency was improperly influenced by Congressional pressure in rendering its decision to promulgate the rulemaking, and (4) whether the rulemaking violates equal protection guarantees of the Fifth Amendment to the Constitution of the United States by prohibiting only the use of radar detectors in commercial motor vehicles while leaving other vehicles unregulated. For the reasons that follow, the petition for review is denied.

I.

A. Regulatory Authority of the Federal Highway Administration

Congress first authorized federal regulation of motor carrier vehicles in the Motor Carrier Act of 1935, ch. 498, Part II, Sec. 204(a), 49 Stat. 543, 546-47 ("the 1935 Act"). Subsequently, Congress enacted the Motor Carrier Safety Act of 1984, which ratified the regulations adopted under the authority of the 1935 Act and required the Secretary of Transportation ("the Secretary") to issue updated or more stringent rules. Motor Carrier Safety Act of 1984, Pub.L. 98-544, 98 Stat. 2832 (1984) ("1984 Safety Act"). ¹ The express purpose of the 1984 Safety Act was "to promote the safe operation of commercial motor vehicles ... and to assure increased compliance with traffic laws and with the commercial motor vehicle safety and health rules, regulations, standards, and orders issued pursuant to this Act." 49 U.S.C. App. Sec. 2501.

In the 1984 Safety Act, Congress made the following findings:

(1) it is in the public interest to enhance commercial motor vehicle safety and thereby to reduce highway fatalities, injuries, and property damage;

(2) improved, more uniform commercial motor vehicle safety measures and strengthened enforcement would reduce the number of fatalities and injuries and the level of property damage related to commercial motor vehicle operations;

(3) enhanced protection of the health of commercial motor vehicle operators is in the public interest; and

(4) interested State governments can provide valuable assistance to the Federal Government in assuring that commercial motor vehicle operations are conducted safely and healthfully.

49 U.S.C. App. Sec. 2502. ² Based on these findings, Congress authorized the Secretary to issue or reissue regulations pertaining to the safe operation of trucks including minimum standards to "ensure that ... commercial motor vehicles are safely ... operated." 49 U.S.C. App. Sec. 2505(a)(1). The Secretary also has the authority to "prescribe requirements for ... safety of operation ... of motor carrier[s]" under the Motor Carrier Act of 1935, as amended, 49 U.S.C. Sec. 3102(b). Regulatory authority under both statutes has been delegated to respondent, the Federal Highway Administration ("FHWA" or "the agency"). 49 U.S.C. Sec. 104(c)(2); 49 C.F.R. 1.48(f), (aa).

B. Regulation of Radar Detectors

Radar detectors have been the subject of a great amount of controversy and proposed legislation. ³ In May 1988, a group of safety organizations, police agencies, and representatives of the insurance industry jointly filed a petition for rulemaking to ban the use of radar detectors in CMVs with the FHWA. The agency denied the petition on November 8, 1988, stating:

It is our view that the enforcement of speed limit laws on the highways is a problem which is common to the States and not truly national in scope. As a common state problem, we believe that the States, acting either individually or together, can effectively deal with this matter.

November 8, 1988 letter from FHWA to group petitioning for rulemaking (quoted in Petitioners' Brief at 5). Thus, the agency concluded that a federal ban on radar detectors would violate principles of federalism. Id.

On July 18, 1990, a second petition was filed with the FHWA seeking a rulemaking to prohibit radar detectors in CMVs. The petition was filed jointly by Advocates for Highway and Auto Safety, the American Automobile Association, the American Trucking Association, the Insurance Institute for Highway Safety, the International Association of Chiefs of Police, the National Association of Governors' Highway Safety Representatives, the National Safety Council, and Public Citizen. The petition cited studies that showed: (1) drivers of tractor-trailers were the most likely to use radar detectors, (2) drivers of tractor/semitrailers with radar detectors were two to three times more likely to speed than those without radar detectors, and (3) technology is now available to law enforcement authorities to detect the use of radar detectors.

Respondent FHWA had taken no action on the petition for rulemaking when Congress enacted the DOT Appropriations Act of 1992. This Act directed the Secretary to publish

a notice of proposed rulemaking with regard to amending the Federal Motor Carrier Safety regulations to prohibit the use of radar detectors in operating commercial motor vehicles. Such notice shall solicit testimony regarding the safety, economic, and operational aspects of prohibiting radar detectors in commercial operations.

DOT Appropriations Act of 1992, Pub.L. No. 102-143, Sec. 342 (1991). Accordingly, on January 24, 1992, FHWA published a notice of proposed rulemaking ("NPRM") to comply with the Congressional mandate to conduct a rulemaking proceeding and to respond to the 1990 petition for a rulemaking. 57 Fed.Reg. 2885 (1992). In the NPRM, the agency acknowledged that the public held "widely divergent views on the rationale for, and efficacy of, banning radar detectors from CMVs," and that "scientific proof establishing a direct causative linkage between radar detector use and CMV accidents may not exist." Id. Furthermore, the agency stated in the NPRM that although it denied a similar petition in 1988 on grounds of federalism, the agency has the statutory authority to promulgate such a regulation. Specifically, the agency stated that while it continued to believe that enforcement of speed limit laws was better left to the states, the

authority for the proposed ban on radar detector use and possession under 49 CFR part 392 is inherent in the broad, long-standing powers conferred on the Secretary to regulate the safety on [sic] interstate motor carriers of passengers and property under Title 49 of the United States Code. In particular, the Motor Carrier Safety Act of 1984 (1984 Act) (Pub.L. 98-554, 98 Stat. 2832) provides ample authority for this proposed rulemaking. In addition, Public Law 102-143 specifically directs the Department of Transportation to issue this proposal. The Senate Committee report on Public Law 102- 143 stated that, "while the general prohibition of radar detectors is properly left to the States, the use of radar detectors in vehicles in interstate commerce is an appropriate arena for the Federal Government to regulate." ⁴

Id. at 2887 (Emphasis added). However, the agency requested comments on whether a decision to ban radar detectors is more appropriately left to the states. Id.

In addition, FHWA prepared a Preliminary Regulatory Evaluation of the proposed ban which summarized data relating to the correlation between radar detector use and speeding, and between speeding and accidents. The preliminary evaluation concluded that no direct link between radar detectors and CMV accidents had been proven at that time nor had a clear relationship between radar detector bans and enhanced CMV safety been established. Thus, the agency determined that a chain of inference was required to assess the effects of radar detector use on highway safety. The agency described the chain as follows:

(a) Radar detectors lead to an increased incidence of speeding;

(b) More speeding results in more accidents, and in accidents of greater severity.

Id. The agency also noted that evidence exists to show that radar detector users have a higher propensity to speed than nonusers. Finally, the agency stated that traffic engineering literature was not clear as to whether speeding causes accidents. While some studies suggest that increased speed alone leads to more accidents, other studies indicate that variance in speed relates more directly to accident incidence than does speeding per se. However, the agency also noted that the literature indicates that once a crash occurs, injury severity increases as speed increases. Id.

FHWA received 26,454 comments in response to the NPRM. ⁵ These comments reflected widely divergent views on the desirability of the proposed ban. Comments in support of the...