Washington v. DOTP

UNITED STATES COURT OF APPEALS
Tenth Circuit
Byron White United States Courthouse
1823 Stout Street
Denver, Colorado 80294
(303) 844-3157

Patrick Fisher Elisabeth A. Shumaker
Clerk Chief Deputy Clerk

May 24, 1996

TO: ALL RECIPIENTS OF THE CAPTIONED OPINION

RE: 95-9513, Washington v. DOT
April 23, 1996 by Judge Barrett

The Court has granted the motion to publish its decision filed April 23, 1996.
Attached is the published version.

Very truly yours,

Patrick Fisher,
Clerk

By:

Theresa Smith
Deputy Clerk

Attachments
 PUBLISH
__________________

FILED 4/23/96
UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

__________________

WILLIAM E. WASHINGTON, )
)
Petitioner, )
)
v. ) No. 95-9513
)
DEPARTMENT OF TRANSPORTATION, NATIONAL )
HIGHWAY TRANSPORTATION SAFETY )
ADMINISTRATION, )
)
Respondents. )

___________________________________

PETITION FOR REVIEW FROM
UNITED STATES DEPARTMENT OF TRANSPORTATION,
NATIONAL HIGHWAY TRANSPORTATION SAFETY ADMINISTRATION
(No. 0090-0)
___________________________________

On the Briefs:
John Womack, Acting Chief Counsel, Kenneth N. Weinstein,
Assistant Chief Counsel, Enid Rubenstein and Coleman R.
Sachs, National Highway Traffic Safety Administration;
Barbara C. Biddle and Robert M. Loeb, Department of Justice,
Washington, D.C., for respondents.
William E. Washington, Pro Se.
____________________________________
Before KELLY and BARRETT, Circuit Judges, and BROWN,** Senior
District Judge.
___________________________________
BARRETT, Senior Circuit Judge.
____________________________________
**Honorable Wesley E. Brown, Senior District Judge, United
States District Court for the District of Kansas, sitting by
designation.
___________________________________

After examining the briefs and appellate record, this

panel has determined unanimously that oral argument would not
materially assist the determination of this petition for
review. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9.

Accordingly, petitioner's motion for oral argument is denied
and the case is ordered submitted on the briefs.

Petitioner seeks review of a rule recently promulgated by

respondent National Highway Traffic Safety Administration
(NHTSA), see 49 C.F.R. § 571.121, which mandates and
prescribes safety standards for antilock brake systems (ABS)

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manufactured for air-braked vehicles.1 We reject petitioner's
various challenges to the rule for the reasons stated below.

Petitioner contends (1) the rule reflects NHTSA's
deliberate attempt to exclude all but electronic ABS designs;
(2) the rule impermissibly conflicts with operational

standards established in 49 C.F.R. § 393.52 for commercial
motor carriers; (3) the rule exceeds NHTSA's delegated
authority by imposing design specifications rather than

performance criteria; (4) NHTSA failed to evaluate and

disclose information regarding petitioner's mechanical
alternative to electronic ABS; and (5)NHTSA published false

statistical data in connection with its denial of petitioner's
request for evaluation of his technology. All of these

contentions lack even rudimentary substantiation in factual

argument and legal authority. See generally United States v.
Edwards, 69 F.3d 419, 430 (10th Cir. 1995), petition for cert.

filed, 64 U.S.L.W. 3593 (U.S Feb. 23, 1996)(No. 95-1355),
(Feb. 29, 1996)(No. 95-8147), (Mar. 4, 1996)(No. 95-8134); SEC

1
To the extent petitioner objects to the denial of his
request for rulemaking in 1992, we agree with respondents that
the petition is untimely. See 15 U.S.C. § 1§ 1394(a)(1) (estab-
lishing fifty-nine day period for seeking judicial review of
motor vehicle safety standards, now codified at 49 U.S.C.
§ 30161(a)); see also General Motors Corp. v. NHTSA , 898 F.2d
165, 169 (D.C. Cir. 1990)(refusal to institute requested
rulemaking constitutes final agency action for purposes of judi-
cial review).

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v. Thomas, 965 F.2d 825, 827 (10th Cir. 1992). Nevertheless,
we shall address the discernible questions regarding NHTSA's

regulatory authority implicated in the second and third points
listed above. In this regard, we must determine whether the
challenged action is "'arbitrary, capricious, an abuse of

discretion, or otherwise not in accordance with law.'" Motor
Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463
U.S. 29, 41 (1983)(quoting 5 U.S.C. § 706(2)(A)); Simms v.

NHTSA, 45 F.3d 999, 1003 (6th Cir. 1995).

Section 393.52 specifies braking performance criteria for
vehicles operated by commercial carriers on public highways.

Petitioner objects that "[t]he rule change made by the
Respondents [in § 571.121] cannot meet these requirements,"
Petitioner's Opening Br. at 4, though he does not detail how

or why this is so. We note that the various stopping

distances set out in the two regulations, though very similar,
are not in every case identical. Compare, e.g.,

§ 393.52(d)(B)(3)(40-foot stopping distance at 20 mph) with
§ 571.121 S5.3.1.1 (eff. March 1, 1997)(same) with
§ 571.121 S3.1.1 (eff. until March 1, 1997)(35-foot stopping

distance). However, given evident (and reasonable)
differences in the general orientation and specific focus of
the two regulations, such divergence does not indicate true

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conflict, much less arbitrary, capricious, or unlawful action.

With respect to orientation, the motor carrier regulation
concerns operational standards for vehicles in broadly defined
real-world conditions, see § 393.52(a), (c)(1)(vehicle "must
under any condition of loading in which it is found on a

public highway, be capable of" stopping in specified distance
on "a hard surface that is substantially level, dry, smooth,

and free of loose material"), while the NHTSA regulation

involves standards for manufacture expressed in a manner more
appropriate to the quality control lab, see

§ 571.121 S5.3.1, S5.3.1.1 (eff. until March 1, 1997)(vehicle
"shall stop at least once [in six tries] in . . . the distance
specified" when tested "on a surface with a skid number of 81

. . . [while] loaded to its gross vehicle weight rating");

§ 571.121 S5.3.1, S5.3.1.1 (eff. March 1, 1997)(same, but on

surface characterized by "a peak friction coefficient of
0.9"). As for focus, the motor carrier regulation, which
covers braking performance per se, sets out a standard
concerned primarily with stopping distance, with only a broad

requirement that the vehicle remain within a twelve-foot wide
lane, see § 393.52(a), (c), while the NHTSA regulation, which
targets the ABS portion of the brake system, employs stopping

distance tests as the context for detailing standards

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regarding wheel lockup, see § 571.121 S5.3.1. Given the
related but distinct test parameters and divergent performance

variables involved in these regulations, the minor differences
apparent in their stopping-distance standards are neither
surprising nor suspect.

NHTSA is generally charged with developing performance
standards, not design specifications. Wood v. General Motors

Corp., 865 F.2d 395, 416-17 (1st Cir. 1988), cert. denied, 494

U.S. 1065 (1990); Chrysler Corp. v. Department of Transp., 515
F.2d 1053, 1057-58 (6th Cir. 1975). Petitioner contends
NHTSA's mandate of ABS and associated malfunction indicators

transgresses this boundary on its regulatory authority.
Although we do not take issue with petitioner's premise, we
reject his conclusion for several reasons.

First of all, the performance-design distinction is much

easier to state in the abstract than to apply definitively--so
as to justify judicial interference with an agency's

regulatory function--in concrete situations. This is
particularly true when, due to contingent relationships
between performance requirements and design options,
specification of the former effectively entails, or severely

constrains, the choice of the latter. See Wood, 865 F.2d at
416-17 (citing examples); see, e.g., Chrysler Corp., 515 F.2d

at 1058-59. Such a relationship has been recognized between

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braking performance criteria and ABS. See Freightliner Corp.
v. Myrick, 115 S. Ct. 1483, 1486 (1995). We would,
accordingly, be hesitant to invalidate this carefully
developed safety standard solely on the basis of its
indefinite place on the conceptual spectrum between
performance and design. Here, other considerations counsel

against such action as well.
NHTSA's regulatory authority extends beyond the
performance of motor vehicles per se, to particular items of

equipment. See 49 U.S.C. §§ 30101, 30102(a)(9) (current

versions of 15 U.S.C. §§ 1381, 1391(2), now repealed); Myrick,

115 S. Ct. at 1485. In the thirty years since passage of the
National Traffic and Motor Vehicle Safety Act of 1966, NHTSA

has frequently drawn on this authority to promulgate

standards, particularly those dealing with safety devices,
that take the bipartite form reflected in the ABS standard of

§ 571.121: "first, motor vehicles are required to have
specific items of equipment; and, second, these enumerated
items of equipment are subject to specific performance
standards." Chrysler Corp. v. Rhodes, 416 F.2d 319, 322 & n.4

(1st Cir. 1969)(discussing standards for lamps and reflective
devices, which require 29 and 22 "specific items of
equipment," respectively); see also Wood, 865 F.2d at 417

(discussing occupant protection standard which, "[b]y

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requiring seat belts or passive restraints, . . . has elements
of a design standard"); Automotive Parts & Accessories Ass'n

v. Boyd, 407 F.2d 330, 332 (D.C. Cir. 1968)(upholding
regulation requiring "factory- equipped . . . head restraints

which meet specific federal [performance] standards"). Not
only has Congress countenanced this long-standing practice,
recodifying the Act in 1994 with the pertinent provisions

essentially intact, it has specifically mandated safety
equipment standards with just such a dual
prescriptive-performative structure. See, e.g., 49 U.S.C.

§ 30127(b)(directing Secretary to amend occupant protection
standard to require both front seats to have "an inflatable
restraint (with lap and shoulder belts) complying with

[specified performance criteria]").

Moreover, the policy behind the legislative emphasis on
performance standards, which is to ensure public safety
without stifling design innovation, Wood, 865 F.2d at 416

n.22; Chrysler Corp., 515 F.2d at 1058, is not compromised
significantly by a safety-feature regulation like § 521.171.

This provision mandates only a certain type of equipment, 2

2
ABS is broadly defined--and in predominately
functional, rather than structural, terms--as "a portion of a
service brake system that automatically controls the degree of
rotational wheel slip at one or more road wheels of the vehicle
during braking." 49 C.F.R. § 571.121 S4 (eff. until March 1,
1997); see also 49 C.F.R. § 571.121 S4 (eff. March 1,
1997)(adding further functional detail to definition).

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still constraining specific design choices chiefly through the
preferred means of performance criteria. Further, any

manufacturer that has devised a new means of obtaining the
same or better safety performance afforded by mandated
equipment may (1) seek an exemption to facilitate development

or evaluation, 49 U.S.C. § 30113(b)(3)(B)(ii), and
(2) petition for a new safety standard incorporating the new
device, 49 U.S.C. § 30162(a)(1). 3

We have considered all of petitioner's contentions and,

whether explicitly addressed or implicitly rejected, each has
been found to lack merit. The petition for review, and all

pending motions associated therewith, are DENIED.

3
We note our treatment of the performance-design dis-
tinction is impliedly buttressed by this affirmative accommoda-
tion of "new motor vehicle safety feature[s] providing a safety
level at least equal to the safety level of the [existing] stan-
dard." 49 C.F.R. § 30113(b)(3)(B)(ii)(emphasis added). If, as
petitioner contends, Congress intended its emphasis on perfor-
mance criteria to preclude NHTSA's mandate of particular safety
features, no special exemption would be necessary for a new de-
vice meeting existing (purely performative) standards; such an
exemption becomes necessary when existing standards mandate a
particular type of equipment (a mandate even a performative
equivalent cannot meet).

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