NATIONAL TIRE DEALERS & RETREAD. ASS'N, INC. v. Brinegar

• Decision Date: 08 January 1974
• Docket Number: No. 72-1753.,72-1753.
• Citation: 491 F.2d 31
• Parties: NATIONAL TIRE DEALERS AND RETREADERS ASSOCIATION, INC., Petitioner, v. Claude S. BRINEGAR, Secretary of Department of Transportation, Respondent.
• Court: U.S. Court of Appeals — District of Columbia Circuit

491 F.2d 31 (1974)

NATIONAL TIRE DEALERS AND RETREADERS ASSOCIATION, INC., Petitioner, v. Claude S. BRINEGAR, Secretary of Department of Transportation, Respondent.

No. 72-1753.

United States Court of Appeals, District of Columbia Circuit.

Argued November 6, 1973.

Decided January 8, 1974.

Robert L. Ackerly, Washington, D. C., for petitioner.

Michael Kimmel, Atty., Dept. of Justice, with whom Walter H. Fleischer, Atty., Dept. of Justice, was on the brief, for respondent.

Before TAMM, ROBINSON and WILKEY, Circuit Judges.

WILKEY, Circuit Judge:

Petitioner National Tire Dealers and Retreaders Association, Inc. (NTDRA) seeks review of Federal Motor Vehicle Safety Standard No. 117,¹ issued on 23 March 1972 by the National Highway Traffic Safety Administration, a division of the Department of Transportation. Standard No. 117 was promulgated under the authority granted to respondent, the Secretary of Transportation, by section 103 of the National Traffic and Motor Vehicle Safety Act of 1966 (the Act).² Section 103 empowers the Secretary to "establish by order appropriate Federal motor vehicle safety standards."

Petitioner focuses its challenge on paragraph S6.3.2 of Standard No. 117, which requires that all pneumatic passenger tires retreaded on or after 1 February 1974 have the following information permanently molded into or on one sidewall of the tire: size; maximum inflation pressure and load; actual number of plies or ply rating; the words "tubeless" or "tube-type," as applicable; and the words "bias/belted" or "radial," as applicable.³ The administrative record does not adequately demonstrate that these requirements are practicable, nor does it establish any more than a remote relation between the requirements and motor vehicle safety. The Act mandates that motor vehicle safety standards promulgated thereunder be "practicable" and "meet the need for motor vehicle safety."⁴ Therefore, we vacate that portion of the Order establishing Motor Vehicle Safety Standard No. 117 which relates to permanent labeling of tire size, maximum inflation pressure, ply rating, tubeless or tube-type, and bias/belted or radial construction. However, since section 201 of the Act commands that the Secretary promulgate permanent labeling standards with respect to actual number of plies and maximum permissible load,⁵ the portion of Standard No. 117 relating to those characteristics must remain in effect.⁶

I. STANDARD OF JUDICIAL REVIEW

Section 103(b) of the Act provides that "the Administrative Procedure Act shall apply to all orders establishing, amending, or revoking a Federal motor vehicle safety standard . . . ."⁷ In Automotive Parts & Accessories Association, Inc. v. Boyd⁸ we held that this provision sanctions employment by the Secretary of the informal rule-making procedures set out in section 4 of the APA.⁹ Standard No. 117 was the product of such informal rule-making¹⁰ rather than formal adjudicatory procedures under sections 7 and 8 of the APA.¹¹ Petitioner has not challenged the procedures employed by respondent Secretary.

Judicial review of orders establishing motor vehicle safety standards is authorized by section 105 of the Act.¹² In Boyd we defined the scope of review of standards promulgated through informal rule-making procedures, such as those employed in the instant case:

When the issue on appeal is whether a rule made in informal proceedings meets the criteria of Section 10, the court must necessarily go about the application of that standard in a manner unlike its review of findings of fact and conclusions of law compiled in a formal proceeding.

This exercise need be no less searching and strict in its weighing of whether the agency has performed in accordance with the Congressional purposes, but, because it is addressed to different materials, it inevitably varies from the adjudicatory model. The paramount objective is to see whether the agency, given an essentially legislative task to perform, has carried it out in a manner calculated to negate the dangers of arbitrariness and irrationality in the formulation of rules for general application in the future.¹³

This is the standard of review which we apply in scrutinizing Motor Vehicle Safety Standard No. 117.

II. RELATION OF THE CHALLENGED STANDARD TO SAFETY

The stated purpose of the National Traffic and Motor Vehicle Safety Act of 1966 is "to reduce traffic accidents and deaths and injuries to persons resulting from traffic accidents."¹⁴ Thus, "each . . . Federal motor vehicle safety standard . . . shall meet the need for motor vehicle safety."¹⁵ The Act defines "motor vehicle safety" as "the performance of motor vehicles or motor vehicle equipment in such a manner that the public is protected against unreasonable risk of accidents occurring as a result of the design, construction or performance of motor vehicles and is also protected against unreasonable risk of death or injury to persons in the event accidents do occur . . . ."¹⁶

The general requirement that retreaded tires be labeled with the items of information specified in paragraph S6.3.2 of Standard No. 117 clearly bears a substantial relation to the Act's purpose of achieving motor vehicle safety. As the preamble to the publication of Standard No. 117 states:

Size, maximum load, and maximum permissible inflation pressure are required because each is necessary for proper selection and use of passenger car tires.

* * * * * *

The words "bias/belted" and "radial" are required, where appropriate, in order to identify tires of different types of construction. There is presently a large body of opinion . . . that mixing tires of differing construction types on the same vehicle or same axle of a vehicle is not in the best interests of safety.

* * * * * *

The words "tubeless" or "tube type" are also required to be labeled onto completed retreaded tires. Almost all of the comments considered this information to be safety related.¹⁷

It is indisputable that labeling of tires is necessary to prevent mismatching, overloading, or overinflation, all significant safety hazards.

But the issue here is what relation permanent labeling has to avoidance of those hazards. Petitioner recognizes the importance of labeling retreaded tires with the information required by Standard No. 117, and states:

The retreading industry can and will record such information as is available on a label affixed to the retreaded tire so that the information will be known to the consumer at the time of purchase.¹⁸

However, petitioner asserts that the Secretary "has not found that the information required by S6.3.2 can meet the need for motor vehicle safety only if it is permanently labeled into the retreaded tire."¹⁹

A permanent labeling requirement is clearly unnecessary to protect original purchasers of retreaded tires. A non-permanent, affixed label can supply such purchasers with all the information specified in Standard No. 117 and thus permit them to select tires of proper size and construction. Therefore, lack of permanent labeling could become a factor affecting safety only in the event that a retreaded tire is resold or put to some different use after the affixed label has worn off. The Secretary raised this possibility in the preamble to Standard No. 117:

Tires . . . may be subject to many applications during their useful life. They are transferred from wheel to wheel and from vehicle to vehicle, and each time this takes place the information on the tire sidewall becomes important. Permanent labeling is therefore required if the information is to perform its function, as it can be readily assumed that affixed labels will last little longer than the first time the tire is mounted.²⁰

The Secretary has supplied no illustrations or references to the record to amplify these observations. We can hypothesize two situations in which lack of permanent labeling could conceivably affect safety:

1. An original purchaser of retreaded tires wishes to replace one or more of those tires, and he needs to match up his new tire or tires with the remaining retreads.

2. Someone wishes to purchase retreaded tires from the original purchaser or from some other second-hand source.

There is no suggestion in the record or briefs of how frequently these hypothetical situations arise. They might occur so rarely that a costly and burdensome permanent labeling requirement geared to ensure safety in such situations is unreasonable. Furthermore, it is not clear that a second-hand purchaser of retreads or an original owner who seeks replacements is dependent on the tires' labeling for information necessary to proper match-ups, inflation, and loading. The Secretary's brief observes that an expert can determine many of the critical characteristics of a tire by mere inspection.²¹ Therefore, even in the hypothetical situations posed above, a permanent labeling requirement may not make a significant contribution to the Act's goal of enhancing the safety of motor vehicles. If there is a significant nexus between the permanent labeling requirement of Standard No. 117 and the goal of safety, it does not appear in the briefs or in the record of the rulemaking proceedings.

As noted above, however, section 201 of the Act²² mandates that new and retreaded pneumatic tires be "permanently and conspicuously labeled" with safety information which the Secretary "determines to be necessary to carry out the purposes" of the Act. The section further provides, "Such labeling shall include . . . (3) the actual number of plies in the tire. (4) the maximum permissible load for the tire. . . ."²³ Thus, Congress has determined that permanent labeling of ply and load information on retreaded tires bears a significant relation to safety. Although our discussion of the relation of Standard No. 117 to safety applies with equal logic to permanent labeling of ply and load information, we must faithfully carry out the express mandate of Congress. No administrative procedure...