Simms v. National Highway Traffic Safety Admin.
| Decision Date | 19 January 1995 |
| Docket Number | 93-4087,Nos. 93-3239,s. 93-3239 |
| Citation | 45 F.3d 999 |
| Parties | , 6 NDLR P 182 Debra SIMMS and Lyle Stephens, Petitioners, v. NATIONAL HIGHWAY TRAFFIC SAFETY ADMINISTRATION; United States Department of Transportation; and Federico Pena, Secretary, Respondents. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Lynwood E. Beekman (briefed), Sharon L. LaPointe (argued), White, Beekman, Przybylowicz, Schneider & Baird, Okemos, MI, for petitioners.
Irene M. Solet (argued and briefed), U.S. Dept. of Justice, Appellate Staff, Civ. Div., Washington, DC (on brief: John C. Womack, Acting Chief Counsel, Kenneth N. Weinstein, Asst. Chief Counsel, Allan J. Kam, Senior Trial Atty., National Highway Traffic Safety Admin., Dept. of Transp.), for respondents in No. 93-3239.
Irene M. Solet (argued and briefed), Douglas N. Letter, U.S. Dept. of Justice, Appellate Staff, Civ. Div., Washington, DC (on brief: John C. Womack, Acting Chief Counsel, Kenneth N. Weinstein, Asst. Chief Counsel, Allan J. Kam, Senior Trial Atty., National Highway Traffic Safety Admin., Dept. of Transp.), for respondents in No. 93-4087.
Before: LIVELY and SUHRHEINRICH, Circuit Judges; and DUGGAN, District Judge. *
This petition for review of final action by the National Highway Traffic Safety Administration (NHTSA) of the Department of Transportation arises under the National Traffic and Motor Vehicle Safety Act of 1966, as amended (the Safety Act), 15 U.S.C. Secs. 1381-1431 (1988). The case concerns standards for the safe transportation on school buses of students in wheelchairs. The petitioners contend that the final rule relating to wheelchairs on school buses violates the Safety Act in two respects and, thus, constitutes arbitrary and capricious agency action.
First, the petitioners maintain that NHTSA acted unlawfully in promulgating standards for the securement of wheelchairs on school buses based only on "static" rather than "dynamic" testing. Static testing tests the strength of the individual components of a securement device. Dynamic testing tests the entire securement and restraint system using a test dummy under conditions emulating an actual crash. Second, they argue that the agency should have prescribed "crashworthiness" standards for wheelchairs carried on school buses.
NHTSA announced the final rule on September 3, 1993, 58 Fed.Reg. 46873, after engaging in informal rulemaking procedures pursuant to section 553 of the Administrative Procedure Act (APA), 5 U.S.C. Sec. 553 (1988).
The Safety Act authorizes judicial review under section 706 of the APA. See 15 U.S.C. Sec. 1392(b); 1394(a)(1). The issues were well briefed and the court heard oral arguments before taking the matter under submission.
The purpose of the Safety Act is to "reduce traffic accidents and deaths and injuries to persons resulting from traffic accidents." 15 U.S.C. Sec. 1381. To achieve this goal Congress required the Secretary of Transportation to establish appropriate safety standards for motor vehicles, which "shall be practicable, shall meet the need for motor vehicle safety, and shall be stated in objective terms." 15 U.S.C. Sec. 1392(a). The Safety Act, as originally adopted, did not refer specifically to school buses.
In 1974 Congress amended the Safety Act to require the promulgation of safety standards for school buses. Following this directive, NHTSA in 1976 promulgated Federal Motor Vehicle Safety Standard No. 222 (Standard 222)-- School Bus Passenger Seating and Crash Protection, 49 C.F.R. Sec. 571.222. Standard 222, however, established no safety standards for special seating used by handicapped passengers on school buses.
On July 7, 1989, the petitioners filed a complaint against the Department of Transportation in the form of a letter, alleging that the Department's exclusion of provisions for handicapped students from Standard 222 violated section 504 of the Rehabilitation Act of 1973, 29 U.S.C. Sec. 794 (1988). Section 504 prohibits discrimination against handicapped individuals under any program receiving federal financial assistance or any program or activity conducted by an Executive agency. At the time of this complaint, the Department of Transportation did not have a section 504 complaint procedure, so the Department referred the complaint to NHTSA. On February 14, 1990, NHTSA advised the petitioners that their complaint would be treated as a petition for rulemaking to amend Standard 222, and it published a notice of the granting of the petition on March 1, 1990. 55 Fed.Reg. 7346. The notice established rulemaking docket No. 90-05.
In the notice, NHTSA stated that a recent task force had reviewed the safety of school bus passengers confined to wheelchairs and, as a result, a "state-of-the-art" study of wheelchair securement and protection systems on school buses had been initiated in 1989 to support possible future rulemaking. Id. NHTSA also indicated in the notice that it had been examining efforts by various standards organizations and international agencies regarding safety standards for the transportation of persons in wheelchairs. Several of these standards were listed in the notice and later made available for the rulemaking docket. Id.
In its second notice published May 30, 1990, NHTSA announced the completion of its state-of-the-art study and the study's final report titled "Wheelchair and Occupant Restraint on School Buses." 55 Fed.Reg. 21891. The significant conclusions of this report were that persons in wheelchairs should be transported in a forward-facing position, that the wheelchair and its occupant should be independently secured to the vehicle, that a combination torso and lap belt is one effective means of occupant restraint, and that a tiedown system attaching the frame of the wheelchair to the vehicle floor with four points is an effective securement system. The notice requested comments by July 30, 1990, on the report and other aspects of the pending rulemaking to establish requirements for school bus seating for handicapped students. Id.
On September 24, 1991, NHTSA published a Notice of Proposed Rulemaking (NPRM) proposing to amend Standard 222 to include certain requirements for wheelchair securement devices and occupant restraint systems on school buses. 56 Fed.Reg. 48140. The notice discussed several aspects of the proposal including the agency's tentative decisions: (1) to base the performance criteria for the required devices on static testing rather than on dynamic testing, and (2) not to establish crashworthiness standards for wheelchairs. Id. at 48141, 48144.
The agency acknowledged in the NPRM that dynamic testing is the "preferred" approach and that many parties active in the national and international efforts to establish standards for wheelchair securement and occupant restraint were working on standards based on dynamic tests. The agency concluded, however, that dynamic testing was not practicable because of numerous technical problems. NHTSA determined that these problems could not be resolved without unreasonable delay. Id. at 48141. In response to a comment to its May 30 notice, in which a commenter questioned the ability of some wheelchair designs to withstand crash forces, NHTSA rejected the suggestion that it establish standards for wheelchair crashworthiness, reasoning that the development of objective tests would take "an extremely long time." Id. at 48144. In the NPRM, NHTSA also requested comments on its proposed amendments to Standard 222 and comments on 17 specific questions. Id. at 48145-46. The deadline for comments was November 25, 1991. Id. at 48140.
In April 1992 the petitioners and their counsel met with a group of NHTSA officials in Washington to discuss the status of the pending rulemaking to amend Standard 222. The administrative record contains the minutes of this meeting.
NHTSA's Final Regulatory Evaluation (FRE), completed in September of 1992, also recommended that the final rule be based on static testing standards since static testing was the most "expedient" means of resolving the safety problems related to wheelchairs used on school buses. Again NHTSA took the position that it would be "inappropriate" to promulgate wheelchair crashworthiness standards due to the length of time required to resolve technical problems. NHTSA also noted that crashworthiness standards could undermine the concept of accessible transportation for the handicapped because such standards might increase the cost, weight and size of school bus-eligible wheelchairs, making them unavailable to some handicapped students. The record provided a basis for this concern.
On January 15, 1993, NHTSA published its final rule amending Standard 222. 58 Fed.Reg. 4586. In the rule, NHTSA formally rejected the position of commentators advocating dynamic testing, citing the desire to avoid extensive rulemaking delays due to technical deficiencies in dynamic testing as the reason. Id. at 4586-87. Additionally NHTSA again noted it was "inappropriate" to regulate wheelchair crashworthiness standards in light of extensive delays due to lack of existing standards on the topic. Id. at 4591. As an additional rationale, NHTSA claimed for the first time that it lacked authority to regulate the crashworthiness of wheelchairs because wheelchairs do not constitute "motor vehicle equipment" under the Safety Act. Id.
On February 1, 1993, Lyle Stephens submitted a petition for reconsideration of the final rule. Stephens argued there was sufficient information currently available to establish standards based on dynamic testing of a mobile seating device. Stephens also challenged NHTSA's claim of lack of authority, stating that, although NHTSA may not have authority to regulate wheelchairs per se, they do have authority to regulate a mobile seating device. When a wheelchair is brought on a bus, he contended it becomes a mobile seat subject to regulation...
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