WHILE Air Brake Systems Inc president William Washington did not win his case against NHTSA, he was encouraged by the US Court of Appeals for the Sixth Circuit's statement that NHTSA Chief Counsel John Womack does not have the authority to “make final fact-bound determinations of compliance with NHTSA's safety standards.”

The court in Cincinnati, Ohio, on Feb. 11 affirmed the lower court decision of lack of jurisdiction while also citing the authority of government agencies to interpret their own regulations.

The case dates back to 2001, when Womack issued two opinion letters stating that Air Brake System's MSQR-5000 antilock brake system — the only non-electronic system on the market — would not comply with Federal Motor Vehicle Safety Standard 121. NHTSA then posted the letters on its Web site.

In Washington's subsequent effort to restore his company's reputation, he says he “ended up in this war with them” that cost him $300,000 in legal fees and forced him to eliminate 20 jobs.

Although the US Court of Appeals for the Sixth Circuit did not rule in favor of his company or return his legal fees — which he says was “essentially government protecting government” — he took solace in its statement: “While NHTSA's Chief Counsel has considerable authority over purely legal interpretations of pertinent statutes and regulations, the Secretary has not delegated authority to the Chief Counsel to make final fact-bound determinations of compliance with NHTSA's safety standards.”

“Congress has allowed any agency to interpret their own regulations, but they have rules they have to function under,” Washington said. “The opinion letter is not supposed to be binding on anybody in the industry. It's just that — their opinion. We know it all scares people off from doing any kind of business.”

Washington said that as a result of this case, NHTSA “backpedaled” by changing the wording on its Web site. According to the Appeals Court, the site now says, “A Word of Caution” and “(P)lease be aware that (these interpretations) represent the views of the Chief Counsel based on the facts of individual cases at the time the letter was written.”

Washington said NHTSA asked him to do additional testing that no one else was required to do. He said he did the testing, reported the data to NHTSA, and is still waiting for NHTSA to publish it.

“They just sat on that information that shows that our product does comply,” he said.

Washington said he will meet with his investors to decide whether to appeal to the Supreme Court — a move he says would cost at least an additional $50,000.

He said he has learned just how strong government organizations can be.

“They are actually more powerful than Congress,” he said. “Congress set them up because they can destroy anyone just by issuing an opinion letter. For example, they can say, ‘Kellogg’s Corn Flakes causes cancer,' without doing any evaluations or testing, just on their opinion. That spreads through the whole industry, and people quit buying it. Their sales go down the tubes. Because (these organizations) work for the government, they don't have to prove anything at all.

“One of (NHTSA's) attorneys, in my first meeting with them, told me he was going to put me out of business. They did not want me competing with any of the electrical ABS systems that are on the market today. They want everybody to have electrical ABS systems, and that's it.”