Automotive Parts & Accessories Association v. Boyd, 21820

• Decision Date: 27 December 1968
• Docket Number: No. 21820,22015.,21820
• Citation: 407 F.2d 330
• Parties: AUTOMOTIVE PARTS & ACCESSORIES ASSOCIATION, Inc., Petitioner, v. Alan S. BOYD, Secretary of the Department of Transportation, et al., Respondents, Automotive Service Industry Association, Intervenor. STERLING PRODUCTS COMPANY, Inc., Petitioner, v. Alan S. BOYD, Secretary of the Department of Transportation, et al., Respondents.
• Court: U.S. Court of Appeals — District of Columbia Circuit

407 F.2d 330 (1968)

AUTOMOTIVE PARTS & ACCESSORIES ASSOCIATION, Inc., Petitioner, v. Alan S. BOYD, Secretary of the Department of Transportation, et al., Respondents, Automotive Service Industry Association, Intervenor.

STERLING PRODUCTS COMPANY, Inc., Petitioner, v. Alan S. BOYD, Secretary of the Department of Transportation, et al., Respondents.

Nos. 21820, 22015.

United States Court of Appeals District of Columbia Circuit.

Argued September 24, 1968.

Decided December 27, 1968.

COPYRIGHT MATERIAL OMITTED

Mr. Milton Eisenberg, Washington, D. C., with whom Mr. James B. Blinkoff, Washington, D. C., was on the brief, for petitioners. Mr. Richard H. Murray also entered an appearance for petitioner in No. 22,015.

Asst. Atty. Gen. Edwin L. Weisl, Jr., with whom Messrs. Morton Hollander and Norman Knopf, Attys., Department of Justice, were on the brief, for respondents. Mr. Robert V. Zener, Atty., Department of Justice, also entered an appearance for respondents in No. 22,015.

Mr. J. Austin Latimer was on the brief for intervenor in No. 21,820.

Before BAZELON, Chief Judge, and McGOWAN and ROBINSON, Circuit Judges.

McGOWAN, Circuit Judge:

These consolidated review proceedings are among the first to be initiated under the National Traffic and Motor Vehicle Safety Act of 1966 (Safety Act), 15 U.S.C. §§ 1381-1409 (Supp. III, 1968). The object of this challenge is Motor Vehicle Safety Standard No. 202, 33 Fed. Reg. 2945 (1968), which requires that, effective January 1, 1969, all new passenger cars manufactured for sale in this country must be factory-equipped with front seat head restraints which meet specific federal standards. Petitioners are not motor car manufacturers but, rather, a manufacturer of auto accessories, including head restraints (Sterling Products Co., Inc), and two trade associations representing persons engaged in the auto accessory business (Automotive Parts & Accessories Association, Inc. (APAA), and Automotive Service Industry Association (ASIA)). Their common grievance appears to flow not from the recognition and establishment of the head restraint as an essential safety device but from the adverse impact upon their business inherent in a vehicle standard which necessarily requires that the head restraints be factory installed.¹ Their attack upon the Standard takes two major forms. One is procedural in nature, raising a number of issues as to the manner in which the legislative grant of authority was exercised. The other goes to the merits of the Standard, including, interestingly enough, contentions — made here for the first time — that head restraints endanger, rather than promote, passenger safety. We deal with them separately hereinafter, although the conclusion we reach in each instance is the same, namely, that the Standard is to be left undisturbed.

I

In the procedural area, petitioners claim that respondents² misconceived their authority under the Act with respect to the kind of rule making proceeding they could hold. This issue can be posed simply as whether the rule making procedures provided by Section 4(b) (informal rule making) of the Administrative Procedure Act (APA)³ were appropriate for the promulgation of this safety standard, or whether the Safety Act requires the more stringent procedures of Sections 7 and 8 of the APA (formal rule making).⁴ Which of these two sets of APA provisions applies is governed by whether the underlying agency statute, here the Safety Act, requires the rule "to be made on the record after opportunity for agency hearing." APA § 4(b).

There is no issue between the parties as to which procedure was employed in the promulgation of the Standard, since respondents do not purport to have engaged in anything other than informal rule making. Neither do we understand petitioners to be asserting inadequacies in the procedure if measured by Section 4 of the APA alone. At any rate, the evolution of the Standard has, in our view, been wholly in conformity with the contours of that section of the statute, for there was the required notice, "an opportunity to participate * * * through submission of written data, views, or argument," and "a concise general statement of the rule's basis and purpose" when it was issued.

It was on November 30, 1966, that the respondent Boyd first issued a notice of proposed rule making under the Act. 31 Fed.Reg. 15,212-13, 15,218-19 (1966). That notice related to twenty-three suggested safety standards, only one of which involved head restraints. Written comments were invited to be submitted by January 3, 1967. On the following January 31, respondent Bridwell issued rules as to twenty of the proposed subjects, 32 Fed.Reg. 2408-10 (1967); he did not act with respect to head restraints because he thought it desirable to seek further information. Accordingly, on the same day, he issued a new notice of proposed rule making with respect to head restraints, and he invited written comments to be submitted by the following May. 32 Fed. Reg. 2417-18 (1967). As a part of the consideration process, a meeting was held by respondents on November 14, 1967, with both car and accessory manufacturers, and other interested persons. On December 22, 1967, a notice was issued embodying the proposed Standard, and written comments about it were invited by January 26, 1968. 32 Fed. Reg. 20865 (1967). The Standard was promulgated on February 12 thereafter. 33 Fed.Reg. 2945 (1968).

The Standard as issued reflected certain alterations responsive to comments received, but the announcement accompanying it noted that the changes proposed by those interested in accessory equipment had been rejected for the reasons indicated. Various participants in the proceedings, including petitioners, filed petitions for reconsideration. On May 20, 1968, petitioners were sent a letter by respondents denying their request for the reasons stated therein.

Petitioners' central claim is that the Standard is invalid because this manner of proceeding was unauthorized from the beginning since it did not comport with the requirements of Sections 7 and 8 of the APA. This is not a complaint which petitioners appear to have directed to respondents during the course of the proceeding itself, nor in their request for reconsideration.⁵ There is, thus, a serious question as to whether they should now be permitted to press the matter for the first time here. Respondents have, however, chosen to deal with it on the merits, and the public interest in the effective administration of the new Safety Act argues for our doing the same.

The question, as we have said, turns upon whether Congress, under the Safety Act, required the rule "to be made on the record after opportunity for agency hearing." APA § 4(b). The Safety Act contents itself with what is, in this context, the somewhat Delphic pronouncement that "the Administrative Procedure Act shall apply to all orders establishing, amending, or revoking a Federal motor vehicle safety standard under this subchapter." Section 103(b), 15 U.S.C. 1392(b) (Supp. III, 1968). Since the APA contains both Section 4(b), on the one hand, and Sections 7 and 8, on the other, this treatment falls somewhat short of the apogee of the legislative draftsman's art. In any event, the classic conditions are present for recourse to legislative history for illumination of the Congressional purposes vis-a-vis formal and informal rule making.⁶

What emerges from this quest is reasonably explicit, and it points away from where petitioners would have us go. The Senate version of the Safety Act expressly stated that rules would be prescribed in accordance with Sections 3, 4, and 5 of the APA, and that "nothing in this title or in the Administrative Procedure Act shall be construed to make Sections 7 and 8 * * * applicable." See S.Rep. No. 1301, 89th Cong., 2nd Sess. 25-26 (1966). The House bill, on the other hand, simply stated that the APA would apply, without discriminating among its parts. In explaining this provision however, the accompanying committee report stated that "the Secretary may utilize either the informal rule making procedure of section 4 of the APA or the more formal and extensive procedures of that act * * *." H.Rep. No. 1776, 89th Cong., 2nd Sess. 16 (1966). In conference the language of the House version was adopted. In explaining the Conference Bill on the floor of the Senate, Senator Magnuson, the sponsor of the Act and a conferee, pointed out that the change in no way threatened the legitimacy of informal rule making procedures, but instead was only to allow the Secretary to adopt formal procedures should he wish to do so in a particular instance:

With respect to sections 7 and 8 of the Administrative Procedure Act, which apply to formal hearings, the Senate bill had expressly provided that these sections would not apply to standard-setting procedures under the act. It was the clear understanding of the conferees, however, that under the language of the House bill, the Secretary will utilize the informal rulemaking procedures of section 4 of the Administrative Procedure Act; and that he need hold a formal hearing under sections 7 and 8 only if he determines that such hearing is desirable. 112 Cong.Rec. 20600 (daily ed. August 31, 1966) (Emphasis added).

Quite apart from this concrete evidence of Congressional intent, an examination of other provisions of the Act, as well as the particular function which the Secretary is to perform, serves to reinforce the view that informal rule making was appropriate. First, the Act provides for the Secretary to consult informally with the National Motor Vehicle Safety Advisory Council, 15 U.S.C. § 1393(b), as well as various state, interstate and legislative committees. 15 U.S.C. §§ 1392(f) (1) (2), 1396 (Supp. III, 1968).⁷ Also, the Act contemplates that, within the Department, experimentation and research will be used to generate data useful in formulating safety standards. 15 U.S.C. §§ 1392(f) (1), 1395...