PACCAR, Inc. v. National Highway Traffic Safety Administration, s. 75-1017

• Decision Date: 17 April 1978
• Docket Number: 75-2831 and 75-3182,Nos. 75-1017,s. 75-1017
• Citation: 573 F.2d 632
• Parties: PACCAR, INC., Petitioner, v. NATIONAL HIGHWAY TRAFFIC SAFETY ADMINISTRATION and Department of Transportation, Respondents. TRUCK EQUIPMENT & BODY DISTRIBUTORS ASSOCIATION, Petitioner, v. NATIONAL HIGHWAY TRAFFIC SAFETY ADMINISTRATION and Department of Transportation, Respondents. AMERICAN TRUCKING ASSOCIATIONS, INC., Petitioner, v. NATIONAL HIGHWAY TRAFFIC SAFETY ADMINISTRATION and Department of Transportation, Respondents.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 632

573 F.2d 632

PACCAR, INC., Petitioner, v. NATIONAL HIGHWAY TRAFFIC SAFETY ADMINISTRATION and Department of Transportation, Respondents.

TRUCK EQUIPMENT & BODY DISTRIBUTORS ASSOCIATION, Petitioner, v. NATIONAL HIGHWAY TRAFFIC SAFETY ADMINISTRATION and Department of Transportation, Respondents.

AMERICAN TRUCKING ASSOCIATIONS, INC., Petitioner, v. NATIONAL HIGHWAY TRAFFIC SAFETY ADMINISTRATION and Department of Transportation, Respondents.

Nos. 75-1017, 75-2831 and 75-3182.

United States Court of Appeals, Ninth Circuit.

April 17, 1978.

Thomas W. Huber (argued), Seattle Wash., Geoffrey R. Myers (argued), Potomac, Md., Nelson J. Cooney (argued), Washington, D. C., for petitioners.

Michael Kimmel (argued), Neil H. Koslowe (argued), Washington, D. C., for respondents.

On Petition for Review of an Order of the National Highway Traffic Safety Administration.

Before BROWNING, ELY and TRASK, Circuit Judges.

ELY, Circuit Judge:

Paccar, Inc., the builder of Kenworth and Peterbilt trucks, the American Trucking Associations, Inc. (ATA) and the Truck Equipment and Body Distributors Association (TEBDA) challenge Motor Vehicle Safety Standard No. 121 (the Standard) regulating air-braked trucks and tractor-trailers. ¹ The Standard was issued by the National Highway Traffic Safety Administration (NHTSA) pursuant to the National Traffic and Motor Vehicle Safety Act of Congressional concern over the rising highway accident rate, the loss of lives and property incidental thereto, and the tendency of automobile manufacturers to concentrate on cosmetic design to the detriment of safety design, prompted passage of the Act. Congress voiced its belief that "the restrained and responsible exercise of Federal authority can channel the creative energies and vast technology of the automobile industry into a vigorous and competitive effort to improve the safety of vehicles." S.Rep.No. 1301, 89th Cong., 2d Sess. 1, reprinted in (1966) U.S.Code Cong. & Admin.News pp. 2709, 2709.

1966 (the Act), ² and is challenged here for the first time.

To this end the Secretary of the Department of Transportation (Secretary) was given authority to regulate motor vehicle safety by the promulgation of appropriate minimum performance standards. 15 U.S.C. § 1392. The purpose of the Act is to "reduce traffic accidents and deaths and injuries to persons resulting from traffic accidents." 15 U.S.C. § 1381. "(S)afety shall be the overriding consideration in the issuance of standards . . . ." ³ Each standard must meet the need for motor vehicle safety ⁴ and must be stated in objective terms. 15 U.S.C. § 1392(a). The Secretary is instructed to consider "available motor vehicle safety data, including the results of research, development, testing and evaluation activities conducted pursuant to this chapter." 15 U.S.C. § 1392(f)(1). A separate section requires the Secretary to carry out research and development, which can be done by grants to "States, interstate agencies, and nonprofit institutions." 15 U.S.C. § 1395(a), (b). The Secretary is required to consider whether a standard is "reasonable, practicable ⁵ and appropriate for the particular type of motor vehicle" and "will contribute to carrying out the purposes of this chapter." 15 U.S.C. § 1392(f). He has authority to amend standards and to delay their effective date when the need arises. ⁶ The rulemaking power of the Secretary may be delegated to NHTSA. 49 C.F.R. § 501.2.

Each manufacturer ⁷ of affected vehicles must certify that vehicles produced after the effective date of a standard conform to that standard. An exception is made for "incomplete vehicle manufacturers," who may refuse to certify or provide a qualified certification. ⁸ With that qualification, failure to certify, or false certification, is punishable by civil fines in amounts up to $800,000.

⁹ Moreover, any vehicle which is sold to a distributor or dealer, and thereafter found to be nonconforming, must be recalled by the manufacturer, at his expense, or brought into conformity where located. The manufacturer must pay the distributor or dealer "a reasonable reimbursement" at a rate that is fixed by the statute. 15 U.S.C. § 1400(a).

Once NHTSA has indicated that a standard is final, any person "adversely affected" may petition the United States Court of Appeals for review. 15 U.S.C. § 1394. The House Report ¹⁰ states that judicial review under the Act is based on the compliance provisions of the Food and Drug Act, 21 U.S.C. § 371(f)(3), which contains a substantial evidence requirement. ¹¹ The Act itself provides that the Administrative Procedure Act "shall apply to all orders establishing . . . a Federal motor vehicle safety standard," 15 U.S.C. § 1392(b), and the Administrative Procedure Act allows agency action to be held unlawful if "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A).

Whether there is a distinction between the tests of "substantial evidence" and "arbitrary and capricious" is the subject of vigorous debate, ¹² but we see no pressing need to resolve that question here. The Secretary is required to file with the Court the evidence on which the standard was based. 15 U.S.C. § 1394(a)(1). The factual basis of the Standard is subject to a "thorough, probing, in-depth review" and we are "required to decide whether the Secretary acted within the scope of his authority." Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 415, 91 S.Ct. 814, 823, 28 L.Ed.2d 136 (1971). "Although this inquiry into the facts is to be searching and careful, the ultimate standard of review is a narrow one. The court is not empowered to substitute its judgment for that of the agency." Id. at 416, 91 S.Ct. at 824.

HISTORY OF THE STANDARD

In October, 1967, the predecessor of NHTSA announced its intention to promulgate a standard for air-braked trucks, tractor-trailers, and buses. 32 Fed.Reg. 14,278 (1967). A notice of proposed rulemaking was published in January, 1969, 34 Fed.Reg. 1055 (1969), and the proposed standard for trucks and buses was released on June 25, 1970, with a proposed effective date of January 1, 1972, 35 Fed.Reg. 10,368 (1970). ¹³ The proposed standard required vehicles to stop within certain distances, from certain speeds, without leaving a 12-foot wide lane, and without lockup of any wheel "more than momentarily." It set forth brake actuation and release times, specified a relationship between brake chamber air pressure and brake retardation force (to be determined by placing each brake on an inertia dynamometer), provided for repetitious testing to assure brake recovery, and required a number of back-up systems for both system brakes and parking brakes. The initial stopping distance requirement from 60 mph was 217 feet on a dry (skid number 75) ¹⁴ surface.

The Standard was amended on numerous occasions, first, by increasing from 217 feet to 245 feet the distance in which a vehicle travelling at 60 mph was required to stop. This first increase was allowed "to more In February, 1972, in response to petitions from manufacturers requesting reconsideration, the effective date was advanced to September 1, 1974, to "permit a longer period of fleet testing to evaluate the durability of the new systems . . ." 37 Fed.Reg. 3907 (1972). NHTSA noted that "a number of petitions requested increases in the stopping distance required by S5.3.1. The distances specified are considered reasonable and well within the state of the art. Greater distances would increase the disparity between trucks and cars and be contrary to the interests of safety." Id. These petitions were denied, without recitation as to the process by which the agency reached its determination.

accurately reflect the friction characteristics of a surface with a skid number of 75 . . . ." ¹⁵ The effective date of the Standard was extended until January 1, 1973.

The stopping distances prescribed by NHTSA were far shorter than the former stopping distances achieved by large trucks. Therefore, a completely new braking system was necessary ¹⁶ and, since the Standard also demanded that stops be made without lock-up of wheels (more than "momentarily"), most manufacturers notified NHTSA that an "antilock" device was required. ¹⁷ This device consists of a mini-computer attached to each axle of the truck or tractor-trailer which "senses" when a wheel begins to lock and momentarily releases the brake to regain traction. The agency indicated that the Standard did not "require" such a device but set forth criteria for it if used, 36 Fed.Reg. 3817 (1971), and noted its faith in the device's reliability. ¹⁸

In May, 1974, NHTSA again extended the stopping distance, this time allowing 258 feet for a stop from 60 mph. The reason given was the necessity to account for "production variations." ¹⁹ In addition, the effective date of the Standard was delayed until March 1, 1975, for trucks and buses, and until September, 1975, for trailers. 39 Fed.Reg. 20,350 (1974).

In early 1974, the agency began to receive continual complaints to the effect that antilock devices were unreliable, and rendered vehicles dangerously unsafe when combined with new, more effective brakes. ²⁰ In 1974, NHTSA replied that the But "finality" did not mean an end to amendments, nor to industry protestations. ²¹ NHTSA acknowledged that production variables were affecting performance, ²² and moved to amend the Standard to increase the stopping distance to 277 feet at 60 mph. 40 Fed.Reg. 38,160 (1975). This amendment was calculated to allow manufacturers to "depower" the front axles, relieving the danger of lockup in the event of antilock failure. The agency conceded that the requirements of the original Standard were difficult to achieve in a mass production situation. ²³ In a continuing attempt to find a reasonable stopping distance within the technological reach of a mass production industry, the agency announced that a public...