NATIONAL ASSOCIATION OF MOTOR BUS OWNERS v. Brinegar

• Decision Date: 26 July 1973
• Docket Number: No. 71-1268.,71-1268.
• Citation: 483 F.2d 1294
• Parties: NATIONAL ASSOCIATION OF MOTOR BUS OWNERS et al., Appellants, v. Claude S. BRINEGAR, Secretary of the Department of Transportation.
• Court: U.S. Court of Appeals — District of Columbia Circuit

483 F.2d 1294 (1973)

NATIONAL ASSOCIATION OF MOTOR BUS OWNERS et al., Appellants, v. Claude S. BRINEGAR, Secretary of the Department of Transportation.

No. 71-1268.

United States Court of Appeals, District of Columbia Circuit.

Argued September 22, 1972.

Decided July 26, 1973.

Rehearing Denied August 22, 1973.

Robert J. Corber, Arlington, Va., for appellant National Association of Motor Bus Owners, et al.

Francis A. Silver, Arlington, Va., for appellant American Transit Ass'n, Milwaukee & Suburban Transport Corp., and the City Transit Co.

Peter T. Beardsley and Richard A. Mehley were on the brief for appellant American Trucking Associations, Inc.

Joseph B. Scott, Atty., Dept. of Justice, for appellee. L. Patrick Gray, III, Asst. Atty. Gen. at the time the brief was filed, Thomas A. Flannery, U. S. Atty. at the time the brief was filed, Alan S. Rosenthal and Judith S. Ziss, Attys., Dept. of Justice, were on the brief for appellee.

Before WADE H. McCREE, Jr.,^* Circuit Judge for the Sixth Circuit, and ROBINSON and ROBB, Circuit Judges.

ROBB, Circuit Judge:

In this action for declaratory judgment and injunctive relief the appellants challenge regulations promulgated by the Secretary of Transportation and the Acting Administrator of the Federal Highway Administration. The regulations, issued under section 204 of the Traffic and Motor Vehicle Safety Act of 1966¹ (80 Stat. 729, 15 U.S.C. § 1424 (1970)) govern the sale and use of regrooved tires.² The complaint alleges that the regulations are (a) beyond the authority of the Administrator, (b) vague, uncertain and ambiguous, and (c) arbitrary, unreasonable and an abuse of discretion. On cross motions for summary judgment the District Court rejected these contentions and entered a judgment for the defendants.

Appellant National Association of Motor Bus Owners (NAMBO) is the national trade organization for the intercity bus industry. Its members engage in the transportation of persons and property in interstate commerce by motor vehicles pursuant to authority issued by the Interstate Commerce Commission under the Interstate Commerce Act.

Appellant American Trucking Associations, Inc. (ATA), an intervenor in the District Court, is the national organization of the trucking industry. It is an affiliation of fifty-one state trucking associations whose members consist of for-hire and private motor carriers. Most of the for-hire carriers operate pursuant to authority issued by the Interstate Commerce Commission.

The appellants American Transit Association (Transit), Milwaukee & Suburban Transport Corp. (Suburban), and City Transit Company (City Transit), also intervened in the District Court. Transit is a national voluntary trade association for the local transit industry.

City Transit operates motor buses exclusively in the intrastate transportation of passengers within and around the city of Dayton, Ohio, and in charter operations wholly within the state of Ohio and by local authorities in Ohio. City Transit purchases tire mileage from the B. F. Goodrich Company pursuant to a contract under which an employee of Goodrich, working in City Transit's garages, regrooves tires used by City Transit.

Suburban operates motor buses exclusively in the intrastate transportation of passengers for compensation in Milwaukee, Wisconsin, and adjacent areas. It conducts its business under a Common Motor Carrier Certificate issued by the Public Service Commission of Wisconsin. The company regrooves its own bus tires for use on its own buses operating wholly in intrastate commerce within the state of Wisconsin.

I.

In order that the challenged regulations and the contentions of the parties may be viewed in focus a summary of the relevant parts of the statute and their legislative history is necessary.

On October 19, 1965, a tire safety bill was introduced in the Senate (S. 2669, 89th Cong., 2d Sess.). When reported out of committee as the "Tire Safety Act of 1966" this bill provided, with respect to regrooved tires:

No person, firm, or corporation shall sell, offer for sale, or introduce for sale or deliver for introduction in interstate commerce any tire or motor vehicle equipped with any tire which has been regrooved, except that the Secretary may by order permit the sale of regrooved tires or motor vehicles equipped with such tires which he finds are designed and constructed in a manner consistent with the purposes of this Act. S.Rep. No. 1089, 89th Cong., 2d Sess. 45 (1966).

The bill also, among other things, required the Secretary³ to promulgate minimum safety performance standards, maximum permissible load standards, and labeling requirements for tires, and to investigate the feasibility of grading requirements. (S.Rep. No. 1089, 89th Cong., 2d Sess. 33-36, 40 (1966)). In the bill, "motor vehicle" was defined to mean "passenger cars and station wagons" other than certain special purpose vehicles such as racing cars. (Id. at 33). According to the Senate Commerce Committee, the regrooved tire provision was inserted into the bill because:

The committee concluded that the practice of regrooving passenger car tires, in which an iron or tread design device is used to cut into the undertread of a smooth tire carcass to produce a new tread design—a universally condemned practice—should be prohibited by this bill. However, the Secretary would be given the authority to permit the regrooving of any tires which he finds are designed and constructed so as to permit safe regrooving. S.Rep. No. 1089, 89th Cong., 2d Sess. 5 (1966).

The tire safety bill was enacted by the Senate with the regrooved tire provision unchanged (112 Cong.Rec. 6925 (1966)). But neither this bill nor a tire safety bill introduced in the House of Representatives which contained a similar prohibition (H.R. 1366, 89th Cong., 2d Sess. (1966)) ever reached the House floor.

During the same session a traffic safety bill, a more comprehensive measure than the tire safety bills, was also before each House. The Senate version (S. 3005) authorized the promulgation of "motor vehicle safety standards" for "motor vehicles and motor vehicle equipment". (S.Rep. No. 1301, 89th Cong., 2d Sess. 25 (1966). The bill, which made no separate provision for tires, defined "motor vehicle" to mean:

Any vehicle driven or drawn by mechanical power primarily for use on the public roads, streets, and highways, other than (1) a vehicle subject to safety regulations under part II of the Interstate Commerce Act, as amended (49 U.S.C. 301 et seq.), or under the Transportation of Explosives Act as amended (18 U.S.C. 831-835), and (2) a vehicle or car operated exclusively on a rail or rails. S. Rep. No. 1301, 89th Cong., 2d Sess. 24 (1966).

The bill was passed by the Senate without substantial change. (112 Cong.Rec. 14256 (1966)).

The traffic safety bill on the House side (H.R. 13228) differed in certain respects from the Senate provision. First, it contained a separate title on tire safety, designated as Title II. This title provided that standards promulgated in Title I (which, as in the Senate bill, dealt generally with vehicle and equipment safety standards) require that tires be properly labeled and, further, that all new cars be equipped with tires which are adequate when the vehicle is fully loaded. The Secretary was also directed to establish a tire grading system (H.Rep. No. 1776, 89th Cong., 2d Sess. 9 (1966)). The tire safety title did not deal specifically with regrooved tires.

The House Committee on Interstate and Foreign Commerce explained the need for a separate title pertaining to tires:

In a number of bills which have been introduced in both Houses as well as in a bill which has passed the Senate (S. 2669) the necessity for standards for tires was considered as an independent problem and without reference to its relationship to the total traffic safety problem. S. 2669 is confined only to the improvement of tires for passenger cars and station wagons. The committee decided that although tires are a highly important part of the total traffic safety problem they are, nevertheless, an integral part of it and should be dealt with in the context of the total problem and not in a piecemeal fashion. Therefore it is neither necessary nor desirable to grant separate authority for the establishment of standards for this one item of motor vehicle equipment when the Secretary has full authority to issue standards as to tires (as well as any other item of motor vehicle equipment) under title I of the reported bill. However, the committee did feel that it was necessary to emphasize this aspect of the safety problem and to establish certain specific requirements which should be contained in the Secretary\'s standards on tires. These requirements are set forth in section 201, and deal only with information to be given to consumers. The Secretary\'s authority to establish standards as to tire performance is contained in title I, and in establishing these standards he will have to consider distinctions between new tires and retreads. H.Rep. No. 1776, 89th Cong., 2d Sess. 32 (1966).

The house bill also contained a broader definition of "motor vehicle" than the Senate bill. Specifically, section 102(3) defined "motor vehicle" as:

. . . any vehicle driven or drawn by mechanical power manufactured primarily for use on the public streets, roads, and highways, except any vehicle operated exclusively on a rail or rails. H.Rep. No. 1776, 89th Cong., 2d Sess. 2 (1966).

According to the Committee, the exemption was removed for vehicles subject to part II of the Interstate Commerce Act or the Transportation of Explosives Act because "there appeared to be no way to determine with any certainty which vehicles would be subject to the standards and which would be exempt". (H. Rep. No. 1776, 89th Cong., 2d Sess. 15 (1966)). However, to avoid conflicting regulations the Committee inserted as section 103(g) of Title I:

. . . a requirement that in

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