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January 31, 1974

The National Association Of Motor Bus Owners, Plaintiff
The United States of America, Defendant, Interstate Commerce Commission, Intervenor Defendant, and Ralph Nader and Action on Smoking and Health, Intervenor Defendants

Parker, District Judge.

The opinion of the court was delivered by: PARKER

Plaintiff, a national trade association for the intercity motor bus industry, *fn1" brought this action against the United States *fn2" to enjoin the enforcement of orders of the Interstate Commerce Commission ("Commission") promulgating a regulation which restricts smoking on buses traveling in interstate commerce. *fn3" The Commission, Ralph Nader, and Action on Smoking and Health were granted leave to intervene as defendants. *fn4" This Three-Judge Court was convened *fn5" and considered argument on the jurisdictional, procedural and substantive challenges to the regulation. Plaintiff contends that the regulation effects a change of existing certificates of public convenience and necessity in violation of § 212 of the Interstate Commerce Act, 49 U.S.C. § 312, that the Commission had no jurisdiction to promulgate the regulation, and that the regulation is arbitrary and based on findings which are inadequate and unsupported by the administrative record. For the reasons which follow, we find these challenges to be without merit and, accordingly, we deny plaintiff's application.

I. Proceedings Before the Interstate Commerce Commission

 On January 8, 1970, Ralph Nader filed a petition with the Commission requesting a rulemaking proceeding to establish a regulation prohibiting the smoking of cigars, cigarettes, and pipes on passenger motor carriers in interstate commerce. A rulemaking proceeding was instituted and an evidentiary hearing was held before an examiner at which Ralph Nader and plaintiff were the only participants.

 The hearing examiner issued a report in which he found that petitioner Nader did not satisfy the burden of proving that exposure to second-hand smoke represents a hazard to the health of passengers, that it prevents carriers from providing safe, continuous, or adequate service, or that it improperly impinges on the requirements of the public convenience or necessity. *fn6" However, the examiner did conclude that second-hand smoke had the capability of disturbing many passengers to some degree, especially persons with respiratory ailments, and recommended that affected riders be afforded reasonable protection from excessive exposure to tobacco fumes. *fn7" He proposed that a regulation be prescribed requiring carriers to post signs on all buses which read: "Please do not smoke in buses. Some people cannot tolerate tobacco smoke." *fn8"

 The Commission then issued its own report in which it discussed, inter alia, whether the facts developed on the record warranted regulatory action such as the imposition of a ban or limitation on smoking in interstate passenger-carrying motor vehicles. *fn9" The Commission agreed with the examiner's conclusion that petitioner Nader failed to adequately demonstrate the deleterious effects of second-hand smoke on the health of bus passengers. *fn10" But the report went on to state:

"We do believe, however, that the evidence presented by petitioner, as well as the voluminous material present in this record in support of petitioner's position, overtly demonstrates that second-hand smoke is an extreme irritant to humans (particularly with respect to its effect upon eyes and breathing) within its range and that, therefore, smoking on passenger-carrying motor vehicles must be found to be a serious nuisance, capable of disrupting the orderly enjoyment of public transportation, and adversely affecting the adequacy and availability of the service provided by passenger carriers operating in interstate commerce. Furthermore, it can be logically concluded from this fact, as well as from the many representations submitted in this proceeding, that this nuisance has a substantial impact upon the riding habits of the general public. Many persons submitting representations in this proceeding stated that because of smoking they either (1) are unable to utilize interstate buses; (2) limit their use of such buses; or (3) utilize such buses where no other adequate choice is available despite their desire to avoid tobacco smoke." (citations omitted). *fn11"

 Finding that the evidence showed that only about 20 per cent of the passengers on interstate buses smoke, and that separate seating sections, in combination with existing air circulating systems, would eliminate most of the discomfort due to second-hand smoke, *fn12" the Commission promulgated the regulation which is here at issue. That regulation provides:

"Provision for separate seating for smokers and nonsmokers on interstate passenger carriers by motor vehicle.
(a) All motor common carriers of passengers subject to part II of the Interstate Commerce Act, which desire to permit smoking of cigars, cigarettes, or pipes, shall, where smoking on passenger-carrying motor vehicles is otherwise permitted by law, provide a smoking section, consisting of a number of seats in the rear of the passenger-carrying motor vehicle, not to exceed 20 percent of the capacity of the said vehicle. Except as otherwise permitted under paragraph (b) of these rules, smoking of cigars, cigarettes, or pipes shall not be permitted in any portion of the motor vehicle other than the smoking section required by (1) above.
(b) The provisions of paragraph (a) shall not be construed to apply to charter operations performed by motor common carriers of passengers subject to part II of the Interstate Commerce Act.
(c) In the event of any unusual circumstances arising under paragraph (a), the operator (driver) of the motor vehicle involved (or other carrier employee) may exercise reasonable discretion to the extent permitted by the carrier, by making minor modifications in the special seating sections established by paragraph (a) in order to assure the comfort of all passengers and the provision of safe, adequate, and expeditious transportation service. " *fn13"

 II. Applicability of § 212(a) of the Interstate Commerce Act

 The principal issue which emerges from this litigation is whether the regulation in question imposes a change in outstanding certificates of public convenience and necessity in violation of § 212(a) of the Interstate Commerce Act. This section reads in pertinent part:

"212. Suspension, change, revocation, and transfer of certificates, permits and licenses. (a) Certificates, permits, and licenses shall be effective from the date specified therein, and shall remain in effect until suspended or terminated as herein provided. Any such certificate, permit, or license may, upon application of the holder thereof, in the discretion of the Commission, be amended or revoked, in whole or in part, or may upon complaint, or on the Commission's own initiative, after notice and hearing be suspended, changed or revoked, in whole or in part, for willful failure to comply with any provision of this part or with any lawful order, rule, or regulation of the Commission promulgated thereunder, or with any term, condition, or limitation of such certificate, permit or license." *fn14"

 Plaintiff argues that the smoking regulation, requiring segregation of smokers and nonsmokers and the confinement of smokers to designated seats in the rear of the bus, where no such condition had been attached to previously issued certificates, effects a change in presently held certificates which can be accomplished only by the procedures and for the reasons set forth in § 212(a); that is, that the certificates can be changed only after notice and hearing and only for a willful violation by a carrier of a lawful restriction on its operation. Since the Commission makes no claim that the smoking regulation was issued in accordance with § 212(a), or that it is even applicable, plaintiff concludes that the regulation violates the requirements of § 212(a) and should be enjoined. The Commission urges that the regulation was a proper exercise of rulemaking authority and should be ...

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