# Appendix — Motor Vehicle Mfrs. Assn. of United States, Inc. v. State Farm Mut. Automobile Ins. Co. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385009_0696%3A02 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1983 - **Citation:** 463 U.S. 29 ## Text 82-354 Office - Supreme Court, U 7 US. No. 82- IN THE Supreme Court of the United Sk LED AUG 80 9982 ALEXANOr CLP. — — OCTOBER TERM, 1982 MOTOR VEHICLE MANUFACTUREKS ASSOCIATION OF THE UNITED STATES, INC., et al., Petitioners, STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, et al., Respondents. On Petition for Writ of Certiorari to the United States Court of Appeals for the District of Columbia Circuit APPENDICES TO PETITION FOR WRIT OF CERTIORARI Of Counsel: WILLIAM H. CRABTREE Vice President and General Counsel EDWARD P. Goop Senior Attorney Motor Vehicle Manufacturers Association of the United States, Inc. Forrest A. HAINLINE, JR. Vice President and General Counsel DANIEL P. Gu Senior Attorney American Motors Corporation August 30, 1982 LLOYD N. CUTLER JOHN H. PICKERING WILLIAM R. PERLIK * ANDREW B. WEISSMAN WILLiaM R. RICHARDSON, JR. JONATHAN I. Fei. WILMER, CUTLER & PICKERING 1666 K Street, NW. Washington, D.C. 20006 (202) 872-6000 Counsel for Petitioners Motor Vehicle Manufacturers Association of the United States, Inc, American Motors Corporation, Checker Motors Corporation, Chrysler Motors Corporation, Ford Motor Company, General Motors Corporation, and Volkswagen of America, Inc. * Counsel of Record [Additional Counsel Listed on Inside Cover] a a a a IES RICHARD GOODYEAR Vice President, General Counsel and Secretary MICHAEL W. Grice Attorney Chrysler Corporation Henry R. Noute, JR. Vice President—General Counsel JAMES M. MAcNEE, III Associate General Counsel Ford Motor Company Oris M. Suren Vice President and General Counsel CHARLES R. SHARP Assistant General Counsel Wulle L. Weser, JR. J. DouGLAs HAND General Motors Corporation N. RICHARD SKIPPER, JR. General Counsel GERHARD P. RIECHEL Associate Counsel Volkswagen of America, Inc. MILTON D. ANDREWS RICHARD A. PENNA * DONALD M. SCHWENTKER RIVKIN SHERMAN AND LEVY 900 Seventeenth Street, N.W. Washington, D.C. 20006 (202) 347-6007 Counsel for Petitioner Automobile Importers of America, Inc. * Counsel of Record INDEX OF APPENDICES Appendix A—Opinion and Order of the Court of Ap- peals (June 1, 198257 8 Appendix B—Order and Memorandum of the Court of Appeals (August 4, 1982) Appendix C—Order and Memorandum of the Court of Appeals Denying Motions for Extension of Time in Which to File Petitions for Rehearing and/or Rehearing En Banc ES eae Appendix D—Order of the Court of Appeals Denying Motions for Stay and Ordering Expe- dited Briefing Schedule (December 7, 8 Appendix E— Decision of National Highway Traffic Safety Administration (October 23, —̃˙ . Appendix F—Notice by National Highway Traffic Safety Administration of Intent to Pub- lish Attached Notice of Proposed Sup- plemental Rulemaking (July 1, 1982) Appendix G—Notice of Proposed Rulemaking by Na- tional Highway Traffic Safety Adminis- tration (April 6, 19817774 Appendix H—Judgment of the Court of Appeals (June gE ee Appendix I—Statutory Provisions Involved Appendix J—Listing of Petitioners and Their Parent Companies, Subsidiaries, and Affiliates Page la 79a 130a 147a 160a 162a 172a la APPENDIX A UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT No. 81-2220 STATE FARM MUTUAL AUTOMOBILE INSURANCE Co., KENT MASON, PATRICIA WARREN and LEORLIN Boyp, . Petitioners DEPARTMENT OF TRANSPORTATION, DREW LEWIS, AS SECRETARY, NATIONAL HIGHWAY TRAFFIC SAFETY ADMINISTRATION, and RAYMOND A. PECK, JR., AS ADMINISTRATOR, Respondents SUPERINTENDENT OF INSURANCE OF THE STATE OF NEw YORK, AUTOMOBILE IMPORTERS OF AMERICA, INC., MOTOR VEHICLE MANUFACTURERS ASSOCIATION, ET AL., CONSUMER ALERT AND PACIFIC LEGAL FOUNDATION, Intervenors No. 81-2221 NATIONAL ASSOCIATION OF INDEPENDENT INSURERS, AUTOMOBILE OWNERS ACTION COUNCIL, and EUGENE J. MEYUNG, * Petitioners NATIONAL HIGHWAY TRAFFIC SAFETY ADMINISTRATION, Respondent AUTOMOBILE IMPORTERS OF AMERICA, INC., CONSUMER ALERT AND PACIFIC LEGAL FOUNDATION, MOTOR VEHICLE MANUFACTURERS ASSOCIATION, ET AL., SUPERINTENDENT OF INSURANCE OF THE STATE OF NRW YORK, Intervenors 2a Petitions for Review of an Order of the National Highway Traffic Safety Administration Argued March 1, 1982 Decided June 1, 1982 James F. Fitzpatrick, with whom Michael N. Sohn, Merrick B. Garland, John M. Quinn and Robert E. Litan were on the brief, for petitioners in No. 81-2220. Raymond J. Rasenberger, with whom Lawrence C. Merthan, Frank J. Costello and Richard M. Hall were on the brief, for petitioners in No. 81-2221. David W. Allen, Assistant Chief Counsel, National Highway Traffic Safety Administration, with whom Frank Berndt, Chief Counsel, Enid Rubenstein, Allan J. Kam and Eileen T. Leahy, Attorneys, National High- way Traffic Safety Administration, were on the brief, for respondents in Nos. 81-2220 and 81-2221. Lloyd N. Cutler, with whom John H. Pickering, Wi- liam R. Perlik, William H. Crabtree, Michael W. Grice and William L. Weber, Jr. were on the brief, for inter- venors Motor Vehicle Manufacturers Association, et al., in Nos. 81-2220 and 81-2221. Ronald A. Zumbrun, Raymond M. Momboisse and Sam Kazman were on the brief for intervenors Consumer Alert and Pacific Legal Foundation, in Nos. 81-2220 and 81- 2221. Robert Abrams and Stanley A. Camhi were on the brief for intervenor Superintendent of Insurance of the State of New York, in Nos. 81-2220 and 81-2221. Katherine I. Hall was on the brief for amicus curiae, Center for Auto Safety, Public Citizen, Physicians for Automotive Safety, and the American Academy of Pedi- atrics, urging reversal of the rescission of Standard 208. 3a Philip R. Collins was on the brief for amicus curiae, Automotive Occupant Protection Association, urging re- versal of the rescission of Standard 208. Dennis J. Barbour was on the brief for amici curiae, American College of Preventive Medicine and American Public Health Association, urging reversal of the rescis- sion of Standard 208. A. L. Zwerdling and Stephen I. Schlossberg were on the brief for amicus curiae, International Union, United Automobile, Aerospace & Agricultural Implement Workers of America (AFL-CIO), urging reversal of the rescission of Standard 208. Debbie M. Zuckerman was on the brief for amicus curiae, Epilepsy Foundation of America, urging reversal. Milton D. Andrews and Lance E. Tunick entered ap- pearances for intervenor Automobile Importers of Amer- ica, Inc. Before: BAZELON, Senior Circuit Judge, MIKVA and EDWARDS, Circuit Judges. Opinion for the court filed by Circuit Judge MIKVA. Opinion concurring in part filed by Circuit Judge EDWARDS. MIKVA, Circuit Judge: Petitioners in this action seek review of a final order by the National Highway Traffic Safety Administration (NHTSA) rescinding the auto- matic crash protection requirements of Federal Motor Vehicle Safety Standard 208 ten months before the standard’s effective date. 46 Fed. Reg. 53,419 (Oct. 29, 1981) (Notice 25). The standard would have required that large and mid-size automobiles manufactured after September 1, 1982, and all automobiles manufactured after September 1, 1983, carry passive restraints such as airbags or “passive” seatbelts. Airbags are cushions stored under the dashboard that, when triggered by a 4a frontal collision, fill with stored or rapidly generated gas to protect the rider from collision with the car’s interior. Passive seatbelts, also called “automatic” seatbelts, move into place automatically when a passenger enters a vehi- cle and closes the door. Petitioners State Farm Mutual Automobile Insurance Company (State Farm) and the National Association of Independent Insurers (NAII) challenge NHTSA’s rescission of the standard as arbi- trary, capricious, an abuse of discretion, and a violation of law as defined by section 10 of the Administrative Procedure Act, 5 U.S.C. § 706 (1976). We agree. This case is complicated because it has far-reaching implications and involves a politically con- troversial safety standard, but the determining principle is simple. An administrative agency, possessing power delegated by the legislative branch of government, must comply with the legislative requirement that its decisions be reasoned and in accordance with the purposes for which power has been delegated. NHTSA’s rescission of the safety standard presents a paradigm of arbitrary and capricious agency action because NHTSA drew con- clusions that are unsupported by evidence in the record and then artificially narrowed the range of alternatives available to it under its legislative mandate. NHTSA thus failed to demonstrate the reasoned decisionmaking that is the essence of lawful administrative action. I. BACKGROUND The procedural history of the case before us is ex- tremely complex. The standard that has now been re- scinded was the subject of approximately 60 notices of proposed rulemaking, hearings, amendments, and the like between 1969 and 1981. There were separate adjudica- tions before this court and in the Sixth Circuit, and suc- cessful as well as unsuccessful attempts in Congress to control the evolution of the regulation. A number of these events must be described in some detail before we 5a turn to the issues in this case, because they help to put into perspective the course of the agency’s action. A. The Story of Standard 208 and Notice 25 Congress enacted the National Traffic and Motor Ve- hicle Safety Act of 1966 (the Safety Act), 15 U.S.C. §§ 1381 et seg. (1976 & Supp. IV 1980), in response to the alarming number of deaths and personal injuries on the nation’s highways. The stated purpose of the Safety Act was “to reduce traffic accidents and injuries to persons resulting from traffic accidents.” 15 U.S.C. § 1381. The Safety Act directs the Secretary of Trans- portation or his delegate’ to issue motor vehicle safety standards that “shall be practicable, shall meet the need for motor vehicle safety, and shall be stated in objective terms.” 15 U.S.C. § 1392 (a). In issuing these standards, the Secretary is also directed to consider “relevant avail- able motor vehicle safety data,” whether the proposed standard “is reasonable, practicable and appropriate for the particular type of motor vehicle or items of motor vehicle equipment for which it is prescribed,” and “the extent to which such standards will contribute to carry- ing out the purposes” of the Safety Act. 15 U.S.C. § 1392(f) (1), (3), (4). 1 These goals may be met by very different courses of action. NHTSA can act to prevent accidents, or to prevent injuries in the event of accidents—the so-called “second collision.” The Senate Commerce Committee expressed concern that [for too many years, the public’s proper concern over the safe driving habits and capacity of the driver . . was permitted to overshadow the role of the car itself. The second collision the impact of the individual within the vehicle against the steering wheel, dashboard, windshield, etc.— has been largely neglected.” S. Rep. No. 1301, 89th Cong., 2d Sess. 2-3 (1966), reprinted in [1966] U.S. Cope, Conc. & Ap. News 2709, 2710-11. 2 The Secretary’s general authority under the Safety Act has been delegated to NHTSA. 49 C.F.R. § 1.51(a) (1979). 8 Although Congress intended that safety shall be the overriding consideration in the issuance of standards,” S. Rep. No. 1301, 89th |, 6a Under these guidelines, the Department of Transporta- tion (DOT) issued the original Standard 208 in 1967, requiring seatbelts in all cars. 32 Fed. Reg. 2408, 2415 (Feb. 3, 1967). By July 1969, however, DOT had con- cluded that the level of seatbelt use was too low to reduce traffic injuries to an acceptable level. It issued a notice of proposed rulemaking to consider “the prompt develop- ment and installation of passive restraint systems,” 34 Fed. Reg. 11,148 (July 2, 1969), defined as protective systems that require “no action by vehicle occupants.” 36 Fed. Reg. 8296 (May 4, 1971). The agency conducted a lengthy rulemaking proceeding on passive restraint systems. It revised Standard 208 in 1970 to include pas- sive protection requirements, 35 Fed. Reg. 16,927 (Nov. 3, 1970), and after a series of modifications and petitions for reconsideration published a final amendment to Stand- ard 208 in 1972. 37 Fed. Reg. 3911 (Feb. 24, 1972). The Federal Register during this period provides a strong reminder of how frequently an agency sometimes acts to focus or clarify a regulation before the regula- tion is promulgated. Not all of the twenty-four notices Cong., 2d Sess. 6 (1966), reprinted in [1966] U.S. Cope, Conc. & Ab. NEWS 2709, 2714, it recognized that “the Secretary will neces- sarily consider reasonableness of cost, feasibility and adequate lead time.” Jd. The Senate committee also stated that standards “are expected to be performance standards, specifying the required safe performance of vehicles but not the manner in which the manu- facturer is to achieve the specified performance.” /d. at 6, [1966] U.S. Cope, Conc. & AD. News at 2714. At the same time, the Safety Act is “technology forcing” in the sense that developed technology need not be in use prior to its incorporation into a federal motor vehicle safety standard. Pacific Legal Foundation v. Dep't of Trans- portation, 593 F.2d 1338, 1344 (D.C. Cir.), cert. denied, 444 U.S. 830 (1979); Chrysler Corp. v. Dep't of Transportation, 472 F.2d 659, 671-72 (6th Cir. 1972). “The promotion of motor vehicle safety through voluntary standards has largely failed. The unconditional imposition of mandatory standards at the earliest practicable date is the only course commensurate with the highway death and injury toll.“ 8. Rep. No. 1301, supra, at 4, [1966] U.S. Cope, Conc. & Ap. NEWS at 2712. 7a and amendments to the standard issued between 1970 and 1972 are important to the case presented to us here, but two of these modifications are significant. When the first notice, entitled “Inflatable Occupant Restraint Sys- tems,” was published in 1969, the agency’s emphasis was clearly on airbags. 34 Fed. Reg. at 11,148. In 1971, how- ever, the agency observed that “some belt-based concepts have been advanced that appear to be capable of meeting the complete passive protection options,” leading it to add a new section to the standard “to deal expressly with passive belts.” 36 Fed. Reg. 12,858, 12,859 (July 8, 1971). The second modification relevant here was the sub- ject of a separate notice issued on the same day. For the first time, perhaps because passive seatbelts had ex- pressly been added to the propored standard, the agency suggested that passive restraint systems contain an “emergency release” mechanism to facilitate extrication of passengers following a crash. The agency cautioned, however, that the emergency release capability could not be allowed to nullify the advantages of the passive re- straint system: In the case of passive belts, it would be required that the release not cause belt separation, and that the system be self-restoring after operation of the re- lease. An example of such a system would be a lever on the belt retractor that releases the locking mecha- nism, allowing the belt to pay out freely. The self- restoration requirement could be fulfilled, for exam- ple, by a lever that frees the belt only while con- tinuous pressure is exerted, or by a _ time-delay mechanism. In the case of an air bag system, defla- tion could constitute the “automatic” release. 36 Fed. Reg. 12,866 (July 8, 1971). In its final form, the 1972 version of Standard 208 called for “complete passive protection” on vehicles man- ufactured after August 15, 1975. In the interim, vehi- cles built between August 1973 and August 1975 were to carry either passive restraints, or lap and shoulder belts coupled with an “ignition interlock” that would pre- vent starting the vehicle if the belts were not connected. Most car makers chose the second option, and the ignition interlock was one of the factors that caused the 1972 rule to founder in both the courts and in Congress. In Chrysler Corp. v. Dep’t of Transportation, 472 F.2d 659 (6th Cir. 1972), the Sixth Circuit held that “the Agency’s decision to require passive restraints is supported by sub- stantial evidence,” but that the testing procedures re- quired of passive belts did not satisfy the Safety Act’s requirement that standards be “objective.” Jd. at 675. The Sixth Circuit’s decision did not affect ignition in- terlocks, but by late 1974 the public’s irritation at being unable to start a car without fastening seatbelts led Congress to reject the entire standard. The Motor Ve- hicle and Schoolbus Safety Amendments of 1974, Pub. L. No. 93-492, § 109, 88 Stat. 1482 (codified at 15 U.S.C. §1410b) (hereinafter cited as the 1974 Amendments), effected two main changes. First, Congress banned any federal motor vehicle safety standard requiring ignition interlocks or continuous buzzers to warn that seatbelts were not in use. Id. § 1410b(b)(1).* Second, the 1974 Amendments sharply reduced DOT’s discretion to modify Standard 208 in the future. If a modified standard could be satisfied by any system other than seatbelts only, the amended safety standard would have to be submitted to #15 U.S.C. § 1410b(b)(1) states: No Federal motor vehicle safety standard may— (A) have the effect of requiring, or (B) provide that a manufacturer is permitted to comply with such standard by means of, any continuous buzzer designed te indicate that safety belts are not in use, or any safety belt interlock system. 9a Congress where it might be vetoed by concurrent resolu- tion of both houses. Jd. § 1410b (b) (2).° Predictably, the actions of the Sixth Circuit and Con- gress precipitated a new flurry of notices in the Federal Register. NHTSA proposed new warning systems to re- place the prohibited continuous buzzers. See, e.g., 39 Fed. Reg. 42,692 (Dec. 6, 1974). It postponed the effective date for passive restraint systems so as to comply with the mandate of Congress and the testing procedures re- quired by the Chrysler decision. See, e. g., 40 Fed. Reg. 16,217 (April 10, 1576). But most important, the agency had to comply with the congressional ban on ignition interlocks, and this had profound consequences for the case before us now. The 1974 Amendments were enacted on October 27, 1974. Nine months earlier, however, an Reg. 3834 (Jan. 30, 1974), leading NHTSA to change its position of 1971 that these belts should not be detach- able. In April 1974, NHTSA had adopted the suggestion of one automobile manufacturer that emergency release of passive belts be accomplished by a conventional latch— permitting belt separation—provided the restraint system was guarded by an ignition interlock and warning buzzer to encourage reattachment of the passive belt. 39 Fed. 515 U.S.C. § 1410b(b)(2) states Except as otherwise provided in paragraph (3), no Federal motor vehicle safety standard respecting occupant restraint systems may— (A) have the effect of requiring, or (B) provide that a manufacturer is permitted to comply with such standard by means of, an occupant restraint system other than a belt system. Section 1410b(b)(3) exempts standards otherwise prohibited by this section if the standards are promulgated in accordance with the legislative veto provisions of 15 U.S.C. §§1410b(c) and (d). See pp. 34-36 infra. 10a Reg. 14,593 (April 25, 1974). The newly enacted amend- ments to the Safety Act obviously made this provision untenable. Rather than return to the regulation as it was proposed in 1971, however, the agency simply elimi- nated the ignition interlock and buzzer requirements. 39 Fed. Reg. 38,380 (Oct. 31, 1974). Passive belts still were required to have an emergency release mechanism in the form of a latch mechanism that caused release at a single point by pushbutton action. Despite these modifications, NHTSA retained its in- terest in a standard calling for mandatory passive re- straints. It postponed the effective date of the require- ment to August 31, 1976, but emphasized that this post- ponement was only for a single year. “The NHTSA in- tends to propose the long-term requirements for occupant crash protection . . as soon as possible.” 40 Fed. Reg. 33,977 (Aug. 13, 1975). Shortly before that date, how- ever, Secretary of Transportation William Coleman initi- ated a new rulemaking on the issue. 41 Fed. Reg. 24,070 (June 14, 1976). After hearing testimony and reviewing written comments, Coleman suspended the passive re- straint requirement altogether. Although he found such restraints technologically and economically feasible, the Secretary based his decision on the expectation that there would be widespread public resistance to the new sys- tems. Instead of a mandatory passive restraint stand- ard, Coleman proposed a demonstration project involving up to 500,000 cars with passive restraints in order to smooth the way for such a standard at some later date. Department of Transportation, The Secretary’s Decision Concerning Motor Vehicle Occupant Crash Protection (December 6, 1976) (Coleman Decision), Joint Appendix (J.A.) 2065. Coleman’s successor as Secretary of Transportation, Brock Adams, reopened the passive restraint rulemaking only four months later. 42 Fed. Reg. 15,935 (March 24, 1977). Following another round of written comments lla and a public hearing, Adams decided that the demonstra- tion program was unnecessary. He issued a new manda- tory passive restraint regulation, known here as Modi- fied Standard 208. See 42 Fed. Reg. 34,289 (July 5, 1977). This regulation, covering eleven pages of the Code of Federal Regulations, 42 C.F.R. § 571.208 (1977), ordered a “phasing-in” of passive restraints based on vehicle size, beginning with large cars manufactured for the 1982 model year and extending to all cars manufac- tured for the 1984 model year and beyond. Like its predecessor, the 1977 rule had to withstand testing in Congress and the courts. In Pacific Legal Foundation v. Dep’t of Transportation, 593 F.2d 1338 (D.C. Cir.), cert. denied, 444 U.S. 830 (1979), this court upheld Modified Standard 208 as a rational, non-arbitrary regulation consistent with the agency’s mandate under the Safety Act. Modified Standard 208 also fared well in Congress, which did not exercise its authority under the legislative veto provision of the 1974 Amendments. No action was taken by the full House of Representatives. The Senate committee with jurisdiction over NHTSA af- firmatively endorsed the standard, S. Rep. No. 481, 95th Cong., Ist Sess. (1977), and a resolution of disapproval was tabled by the Senate. 123 Conc. Rec. 33,332 (1977). Congress has plainly considered Modified Standard 208 politically controversial, however. Riders were attached to appropriation bills for 1979 and 1980 that prohibited DOT from implementing the passive restraint standard in those years. Pub. L. No. 95-335, § 317, 92 Stat. 435, 450 (1978); Pub. L. No. 96-131, § 317, 93 Stat. 1023, 1039 (1979). The passive restraint standard was not scheduled to be implemented until 1981, however, and these measures emphasized the need for experimentation and research. See, e.g., H.R. ConF. REP. No. 1329, 95th Cong., 2d Sess. 14 (1978) (“The conferees intend that the language of this provision permits broad research and development activities related to the provisions of occu- 12a pant restraint standard No. 208”). Of far greater im- portance were congressional efforts in 1980 to modify rather than nullify the standard. See, e.g., H.R. Rep. No. 1371, 96th Cong., 2d Sess. (1980). These efforts, discussed in detail at pp. 39-47 infra, narrowly failed to become law, and Modified Standard 208 remained in effect. Automobile manufacturers also reacted to Modified Standard 208. On May 22, 1978, NHTSA issued yet another notice of proposed rulemaking in response to a petition from General Motors (GM) concerning emer- gency release mechanisms on passive belts. GM sought reconsideration of the agency’s 1974 decision to require latch mechanisms on passive belts. [Very little was known at the time of that decision regarding designs of passive belt systems. Further, automatic belt “defeat” rates were not a significant issue at that time since no mandate existed which would have required the use of passive restraints on all vehicles. While this conclusion was fully justified at that time we do not believe it has the same degree of validity when applied to the manda- tory incorporation of automatic restraint systems. As we noted previously maximum usage will be a major concern beginning with the effective dates of the mandate established in June 1977; thus necessi- tating additional consideration for designs which show promise in helping to ensure that vehicle oc- cupants avail themselves of the inherent safety bene- fits of automatic belt restraints. 43 Fed. Reg. 21,912, 21,914 (May 22, 1978) (quoting GM proposal). Specifically, GM sought authority to use a “spool release” mechanism that would allow emergency exit from vehicles without requiring separation of the belt. NHTSA noted its “interest” in “the anticipated rate of installation of passive belts and in any passive belt designs that would seek to minimize the rate of dis- 13a connection.” Id. at 21,913. It granted GM's proposal six months later, although in a broader form so as ta permit even greater experimentation with emergency re- lease designs. 43 Fed. Reg. 52,493 (Nov. 13, 1978). Automobile makers began gearing up to comply with the safety vegulation; by October 1981, they had expended a substantial portion of $550 million capital investment necessary to produce the required equipment.“ In February 1981, approximately one month after tak- ing office, Secretary of Transportation Andrew Lewis re- opened the rulemaking yet again. 46 Fed. Reg. 12,033 (Feb. 12, 1981). He based his decision at least in part on “the fact that economic circumstances have changed since the standard was adopted in 1977” and the “diffi- culties of the automobile industry,” citing high unem- ployment, sales “at a very depressed level,” and losses “by even the largest of the domestic manufacturers.” Id. Two months later, the agency ordered a one-year delay in the application of the standard to large cars, extending the deadline to September 1982. 46 Fed. Reg. 21, 172 (April 9, 1981). This notice also observed that the “economic situation of the industry and consumers and the economy as a whole have drastically changed since the standard was adopted in 1977.” Id. at 21,174. On the same day, NHTSA proposed the possible rescis- sion of the entire standard. 46 Fed. Reg. 21,205 (April 9, 1981). Both decisions were announced by the White House Press Office on April 6, 1981, as a part of a larger package of economic recovery measures. See Actions to Help the U.S. Auto Industry at A-34 (April 6, 1981), J.A. 1281, 1321. After receiving written comments and holding public hearings, NHTSA issued a final rule (Notice 25) that rescinded the passive restraint require- „ NHTSA Final Regulatory Impact Analysis, Rescission of Auto- matic Occupant Protection Requirements (October 1981) (herein- after cited as RIA), at VI-41, J. A. 203 (35% of manufacturers’ budgeted capital for automatic restraints has already been spent). 14a ment, and amended Standard 208 to eliminate this re- quirement. 46 Fed. Reg. 53,419 (Oct. 29, 1981) (Notice 25). This court denied motions to stay the rescission in December 1981, and these petitions for review followed. B. NHTSA’s Analysis in Notice 25 The issues raised by Notice 25 are best introduced by a general discussion of the safety problem and the regu- latory task faced by the agency. The starting point for both NHTSA and the petitioners in this action is the fact, based on survey data and accident reports, that American motorists overwhelmingly fail to use their seat- belts. The usage rate of seatbelts is not only low, but falling. In 1977, DOT estimated that usage of manual seatbelts was around 20%. 42 Fed. Reg. at 34,290. To- day, NHTSA estimates that nationwide usage has fallen to 11%. 46 Fed. Reg. at 53,422. Although individuals must decide whether to wear a seatbelt, NHTSA and Congress have recognized that seat- belt usage has serious social consequences. It has been estimated that one American dies in a traffic accident every 11 minutes. S. Rep. No. 481, 95th Cong., Ist Sess. 2-3 (1977). NHTSA predicts that there will be 61,710 motor vehicle fatalities in 1984, and that “because of the growing number of small cars, passenger car occupant deaths could increase by as much as 7,000 by 1990.” NHTSA Final Regulatory Impact Analysis, Rescission of Automatic Occupant Protection Requirements (October 1981) (hereinafter cited as RIA), at V-12 n.4, XI-3, J.A. 160 n.4, 263. A significant number of these deaths —and an even larger number of serious injuries—could be prevented if motorists wore seatbelts. The resulting 7 The usage figures vary by car size, RIA at IV-20, J. A. 76 (17% subcompact, 10% compact, 8.5% intermediate, 7.9% full-size), and apparently by region of the country, id. at IV-31, J.A. 87 (survey showing difference of 25 percentage points between usage in Mary- land and North Carolina). 15a benefits to society include reduced insurance premiums, lower medical and rehabilitative costs, and incalculable savings in terms of human tragedy. Estimating the value of these benefits is necessarily inexact, but estimates can be made. In 1977, for example, DOT predicted that pas- sive restraints could prevent approximately 12,000 deaths and over 100,000 serious injuries annually. 42 Fed. Reg. at 34,298. In Notice 25, NHTSA estimated that if the usage rate of seatbelts rose from 11% to 60%, Modified Standard 208 would save 8,750 lives and 176,900 serious injuries each year. RIA at IV-71, J.A. 127. The agency estimates the long-term savings in various kinds of in- surance premiums alone at $4.3 billion annually, if these fatalities and deaths could be avoided. Id. at V-14, J. A. 162.° Investment in safety also has its costs, of course. In 1977, for example, Secretary Adams estimated that pas- sive seatbelts would exceed the cost of manual seatbelts by $25 per car, and that installation of airbags would cost $112 per vehicle. 42 Fed. Reg. at 34,293. These »The RIA discussed automobile, health, and life insurance plans. It predicted automobile insurance reductions of $960 million to $2.9 billion annually, from the low to the high ends of the range. RIA at V-7, J.A. 155. The range of reductions in health insurance, government payments, and workers’ compensation was $451 million to $1.4 billion annually. RIA at V-11, J.A. 159. Similarly, the an- nual reductions in automobile fatalities would save $6 to $26 million in life insurance annually. RIA at V-12, J.A. 160. These savings can alsc oe expressed on a per-car basis, suggesting a present dis- counted value of $79 to $240 per car (using a 10% discount rate). RIA at V-14, J.A. 162. Such analysis is extremely sensitive to assumptions about the appropriate discount rate, of course. See RIA at A-5, J.A. 279 (change from 10% discount rate to 7% dis- count rate increases social benefits by 46%). The analysis also understates the expected savings because it deals only with reduc- tions in insurance premiums, and makes no attempt to calculate the full social cost of traffic fatalities and injuries in such terms as lost earnings and reduced productivity. See RIA at A-4, J.A. 278 (esti- mating social cost of serious injuries at $15,140 and of fatalities at $314,100, assuming 10% discount rate). 16a costs have risen with inflation. In 1981, NHTSA esti- mated that the marginal cost of passive restraints would vary between $50 and $150 per vehicle. The average figure was $89, which includes $15 for added fuel costs over the life of the car. 46 Fed. Reg. at 53,423; RIA at VI-40, J.A. 202.° The cost of airbags has also risen sharply and depends to a great extent on the volume of production. If all vehicles manufactured annually were equipped with airbags, the resulting economies of scale would hold airbag costs to between $200 and $330 per ear. At lower volumes, however, such as only 10,000 units a year, the cost of airbags could climb as high as $1,200 per vehicle. RIA at VI-10, J.A. 172. NHTSA *See generally RIA at VI-40 to VI-48, J.A. 202-210. Costs of equipment in the early years of the regulation’s implementation would be higher, but would decline in the long run as restraint systems were incorporated in new vehicle designs as opposed to retrofitting existing vehicle designs. RIA at VI-42, J.A. 204. NHTSA responded in several ways to criticism that it “has not adequately explained how the costs of automatic belts have more than doubled in constant dollars since 1977,“ when Secretary Adams estimated the marginal cost of passive belts to be $25. It stated that the earlier figure was based on the Volkswagen (VW) Rabbit system, which is not representative of larger cars. RIA at B-3, J.A. 287; see id. at VI-6, J.A. 168 (1981 retail price of VW Rabbit belts was $50, and 1981 retail price of GM Chevette belts was $65). Moreover, NHTSA's overall estimate of belt prices includes the cost of features that would not be required by the standard but that might increase comsumer acceptance of passive belts. See, e.g., id. at VI-5, VI go, J. A. 167, 198 (estimate includes cost of “luxurious” Toyota system, in which electric motor moves belt out of the way when door opens, at cost in excess of $300). The cost estimate even includes equipment that NHTSA is prohibited from requiring. See id. at VI-37, J.A. 199 (although VW Rabbit’s inter- lock “adds an estimated $12 to the retail cost, we believe that this feature increases use and that its cost is properly attributable to the standard”). As NHTSA observed, [it can be argued that fancy consoles, easy stowage, and retractor/reel features are not required for compliance, and therefore, should not be included as ‘legitimate’ standard-costs. Since usage is a function of consumer acceptance, it is difficult to draw a line.” RIA at VI-40, J.A. 202. 17a estimated the cost of Modified Standard 208 to be ap- proximately $1 billion per year. 46 Fed. Reg. at 53,423; RIA at VI-49, J.A. 211. The regulatory problem facing NHTSA was therefore simple in theory, although extremely difficult in applica- tion. It had to predict the savings that would result from Modified Standard 208, and compare that savings with the cost of the standard, so as to conduct “a ‘com- monsense’ balancing of safety benefits and economic costs.” United States v. General Motors Corp., 518 F.2d 420, 435 (D.C. Cir. 1975); see H & H Tire Co. v. Dep’t of Transportation, 471 F.2d 350, 353-54 (7th Cir. 1972)."° NHTSA found that the costs of the passive restraints required by Modified Standard 208 could be justified only if nationwide seatbelt usage rose by 13 percentage points, from 11% to 24%. RIA at A-10, J.A. 284. NHTSA concluded that no such increase would oc- cur, and therefore rescinded the standard. 1. Modified Standard 208 as written As discussed above, Modified Standard 208 as it stood in 1981 could have been satisfied by airbags or by either of two kinds of passive seatbelts. Both the “continuous” and the “detachable” passive seatbelts provide the emer- gency release mechanism required by the standard. On continuous belts, this mechanism may consist of a “spooi- out” device that expands the belt but does not detach 10 See note 3 supra. NHTSA cautioned, however, that the conversion of safety benefits (i.e., lives saved and injuries avoided) into dollar figures is an improper and inappropriate method of reaching decisions on safety issues. [NHTSA should not be] charged with placing a dollar value on human life. Such a concept is offensive and the Agency has not been performing such calculations. . [W]hile costs and benefits must both be considered, safety is of overriding concern. Thus, regardless of the outcome of a dollar-based benefit-cost analysis, it cannot be used as the sole criterion for decisionmaking. RIA at A1. A-2, J. A. 275, 276. 18a it. On detachable belts, the mechanism allows separation of the belt in the same way that manual seatbelts are buckled and unbuckled. In Notice 25, NHTSA first found it “reasonably cer- tain” that if Modified Standard 208 were implemented, “the overwhelming majority of new cars would be equipped with automatic belts that are detachable.” 46 Fed. Reg. at 53,421. Sixteen automobile manufacturers had participated in the rulemaking. Two stated that they planned to use the detachable belts; three said they ex- pected to do so, although they did not make a definite commitment; five predicted that the automotive industry as a whole would rely on detachable belts, without dis- cussing their own design plans at all; and the remaining six were silent on the question." NHTSA then analyzed the efficacy of the detachable passive seatbelt. Passive seatbelts—both detachable and continuous—have been in use for some years, and the record shows that these devices increase seatbelt use on every model. NHTSA observed, however, that the data 11GM and Chrysler were the only two car makers that explicitly stated an intention to use detachable passive belts. See J.A. 1220, 2549 (rulemaking comments). NAII challenges the interpretation given by NHTSA to the comments of other manufacturers on this point, NAII Brief at 23-24 (12 of the 16 manufacturers “gave no indication one way or another as to their plans for detachability features”), and State Farm suggests that “the record is not a model of clarity on this point.” State Farm Brief at 40 n.51. Petitioners also contend that NHTSA committed procedural error in holding “secret meetings” with several manufacturers to obtain “a detailed breakdown of their planned automatic belt designs” after the public comment period closed. NAII Brief at 24 n.14; State Farm Brief at 40 n.51. 12 Between 1975 and 1980, Volkswagen (VW) sold approximately 350,000 Rabbits equipped with detachable passive seatbelts that were guarded by an ignition interlock. General Motors (GM) sold 8,000 1978 and 1979 Chevettes with a similar system, but eliminated the ignition interlock on the 13,000 Chevettes sold in 1980. The 1980 Chevettes offered a lap/shoulder belt whose lap portion could 19a could be interpreted in greatly different ways.“ It also questioned, for a number of reasons, whether the data could be used to predict overall usage rates under Modi- be detached from the socket on the car door. Finally, Toyota has offered a “spool release” continuous belt on some 1980 Coronas and on all 1981 Cressidas. Although design features can increase the use of passenger re- straints, no system yet conceived appears capable of bringing the usage rate anywhere near 100%. Even the ignition interlock re- quired on cars between 1973 and 1975—arguably the most coercive belt system imaginable—succeeded in increasing belt usage only to roughly 60% in 1974. Consumers deactivated many of these devices and seatbelt use in those cars quickly fell to around 40%. See Pacific Legal Foundation v. Dep't of Transportation, 593 F.2d at 1341 n.14. Nevertheless, the passive belts thus far in use have shown striking results. Based on a variety of sources, NHTSA found that belt usage in the VW Rabbits averaged 34% for manual belts and 84% for passive belts. RIA at IV-52, J.A. 108. For the 1978-1979 Chevettes, NHTSA used figures of 34% for manual belts and 71% for passive belts. On 1980 Chevettes, the agency found these figures to be 31% for manual belts and 70% for passive belts. Id., J. A. 108. No statistically valid data for the Toyota models appears on the record, although there is no suggestion that it would vary greatly from the other models. See id. at IV-29, J.A. 85 (based on 8 observations, 17% use of manual belts and 88% use of automatic belts). 1346 Fed. Reg. at 53,422. The problem is predicting the effect of the automatic belts on the general population, where the average use is 11%, from data concerning vehicles on which even manual usage is at a much higher rate. One set of VW data, for example, suggested usage rates of 36% for manual belts and 81% for auto- matic belts. The difference made by passive belts could be inter- preted either as showing an arithmetic increase of 45 percentage points, or as showing a multiplier effect of 2.3 times. Depending on whether the “additive” or the “multiplier” technique is used, nationwide rates could be predicted to increase to 56% or 25% respectively. NHTSA “used the results of these two techniques in an attempt to construct a range of possible increases in belt usage,” and concluded that extrapolation from the raw data suggested “a range of 15 to 60 percent” could result. 46 Fed. Reg. at 53,422. But see RIA at IV-29, J.A. 85 (Opinion Research Corporation sample 20a fied Standard 208.“ Finally, NHTSA analyzed the oper- ation of the detachable belts, and found them function- ally equivalent to manual seatbelts already in use. Most planned automatic belts would be like today’s manual lap and shoulder belts in that they can be easily detached and left that way permanently... . Some belt designs may be detached and permanently stowed as readily as the current manual lap and shoulder belts. Once a detachable automatic belt is detached, it becomes identical to a manual belt. Con- trary to assertions of some supporters of the stand- ard, its use thereafter requires the same type of found 89.8% use of VW automatic belts, more than 63 percentage points higher than use of VW manual belts, in early 1981). Al- though NHTSA next argued that the lower end of this range was too high, it could therefore be suggested that the upper end of this range was too low. The agency noted four factors that it said made it impossible to generalize from the data on VW Rabbits and GM Chevettes to the general vehicle fleet. (1) Car size. Both the Rabbit and Chevette are subcompacts, and belt usage rates are typically higher in small cars than in large ones. See note 7 supra. (2) Owner demographics. Belt usage increases with educational level and income, RIA at IV- 27, J.A. 83, and “Rabbit owners typically have higher education levels and earn more money” than the average car owner. Id. at 1V-33, J. A. 89. (3) Voluntarism. “Having voluntarily invested in automatic restraints, [these users] are more likely to use those restraints than someone who is compelled to buy them.” 46 Fed. Reg. at 53,421. (4) Coercive use features. The Rabbits and the 1978 and 1979 Chevettes were equipped with interlocks. NHTSA also described the belt system on 1980 Chevettes as “coercive,” even though that model did not have an interlock, because the shoulder portion of the lap/shoulder belt was continuows. Id., see note 12 supra. The last factor was considered the most important one. NHTSA concluded that the Rabbit interlock “would account for four-fifths of the [usage] increase observed in the automatic belt vehicles,” and attributed a “significant portion of the remaining increase” to the fact that Rabbit and Chevette owners “knowingly and voluntarily bought the automatic belts. ... This factor would not, of course, be present in the fleet subject to the standard.” 46 Fed. Reg. at 53,422. But see note 30 infra. 2la affirmative action that is the stumbling block to ob- taining high usage levels of manual belts. 46 Fed. Reg. at 53,421. NHTSA’s final step was to predict the usage rate of detachable passive belts that could be expected under the standard. Although Notice 25 is somewhat unclear as to the precise finding, NHTSA clearly believed that any increase in usage would be minimal. The agency cannot reliably predict even a 5 percentage point increase as the minimum level of expected usage increase. The adoption of a few percentage points increase as the minimum would, in the agency’s judgment, be more consistent with the substantial uncertainty about the usage rate of detachable auto- matic belts. Based on the data available to it, NHTSA is unable to assess the probability that the actual incremental usage would fall nearer a 0 per- centage point increase or nearer some higher value like a 5 or 10 percentage point increase. 46 Fed. Reg. at 53,423. NHTSA cautioned that “the agency is not able to agree with the assertions that there will be absolutely no increase in belt use as a result of automatic belts,” id. at 53,425, but it repeatedly em- phasized that any increase would be “extremely small due to the substantial similarity of the design and methods of using detachable automatic belts and manual belts” and that “detachable automatic belts may con- tribute little to achieving higher belt usage rates.” Id. at 53,423. Based on these three steps, NHTSA concluded that the savings from increased seatbelt usage under Modified Standard 208, if any, would not exceed the costs of the regulation: In view of the possibly minimal safety benefits and substantial costs of implementing the automatic re- straint requirements, the agency is unable to con- clude that the incremental costs of the requirements are reasonable. The requirements are, in that re- spect, impracticable. 46 Fed. Reg. at 53,423. It therefore concluced that the standard should either be revised or rescinded. 2. Modified Standard 208 as NHTSA considered revis- ing it NHTSA recognized that its analysis of detachable pas- sive belts did not apply to other kinds of passive re- straints. “[{T]he question then arises whether the agency should amend the standard to require that automatic belts have a use-inducing feature”—i.e., be continuous rather than detachable—that “would increase belt usage.” 46 Fed. Reg. at 53,423. The agency rejected a refinement of the standard as “impracticable,” however, for reasons of cost, equity, public reception, and safety. Of these factors, only the last two received emphasis in Notice. 25."° NHTSA’s first reason for not amending Modified Standard 208 to require “use-compelling fea- 1 The portion of NHTSA’s decision explaining why it had de- cided against amending the standard takes up only a third of one page in its nine-page opinion. 46 Fed. Reg. at 53,424. Earlier in the decision, NHTSA foreshadowed the issue in recognizing that “the question then arises whether the agency should amend the stand- ard... Id. at 53,423. The next three columns of the Federal Register appear to discuss only detachable belts, however. FE. g., id. (standard would cost too much because of uncertainty that “owners of cars with detachable automatic belts would receive offsetting discounts in insurance costs”); id. at 53,424 (negative effect on public attitude toward safety regulation because “detachable auto- matic belts may not be any more acceptable to the public than manual belts”); id. (standard would be inequitable because “the current regular user of manual belts” would be required “not only to pay himself for a system that affords him no additional safety protection, but in part to subsidize the current nonuser of belts who may or may not be induced by the automatic restraints”). But see notes 33, 43 infra. 23a tures” on passive belts drew on the negative earlier reaction to ignition interlocks. “The history of the Con- gressional action which removed this authority from NHTSA suggests that Congress would look with some disfavor upon any similar attempt to impose a use- compelling feature on a belt system.” Id. at 53,424. See- ond, NHTSA concluded that revising the standard to require only continuous belts would be “counterproduc- tive” because of “irrational” reactions by users: Recent attitudinal research conducted by NHTSA confirms a widespread, latent and irrational fear in many members of the public that they could be trapped by the seat belt after a crash. Such appre- hensions may well be contributing factors in decisions by many people not to wear a seat belt at all [I]t would be highly inappropriate to impose a technology which by its very nature could heighten or trigger that concern. Id. Finally, NHTSA suggested that this concern might not be so “irrational” after all. It suggested that “there are compelling safety reasons” why continuous belts— even those with emergency release features—should not be mandated. In the event of accident, occupants wearing belts suffer significantly reduced risk of loss of conscious- ness, and are commonly able to extricate themselves with relative ease. However, the agency would be unable to find the cause of safety served by imposing any requirement which would further complicate the extrication of any occupant from his or her car, as some use-compelling features would. Id. Although these three reasons exhaust NHTSA’s ex- plicit discussion of its refusal to modify the passive re- rene relied on a fourth concern, albeit one stated only in the 24a context of detachable belts. Much of Notice 25 focuses on concern about public attitudes toward government safety regulations, suggesting that a backlash against a passive restraint standard “might cause significant long run harm to the safety program.” Id. at 53,424. Be- cause detachable passive belts and manual belts may be perceived as functionally identical, “it is not unreason- able to conclude that the public may regard the auto- matic restraint requirements as an expensive example of ineffective regulation.” Id. Adverse public reaction might lead some car owners to “cut the automatic belts out of their cars, thus depriving subsequent owners of the cars of the protection of any occupant restraint sys- tem,” and could bring “a poisoning of popular sentiment toward efforts to improve occupant restraint systems in the future.” Id. “A public that believes it is the victim of too much government regulation by virtue of the standard migut well resist such parallel efforts advertis- ing campaigrs and educational programs] to enhance voluntary belt usage.” Id. at 53,425-26."* II. THE Scope or REVIEW Our review in this case proceeds under both the sub- stantive sections of the Safety Act and the provision for judicial review of informal rulemaking in the Adminis- trative Procedure Act (APA), 5 U.S.C. § 553 (1976). Section 103(b) of the Safety Act, 15 U.S.C. § 1392(b), states that tne APA “shall apply to all orders establish- ing, amending, or revoking a Federal motor vehicle 16 NHTSA’s final point in Notice 25 was that it planned to “undertake a major educational effort to enhance voluntary belt usage,” and that such an educational effort would be “at least as effective but much less costly than the installation of millions of detachable belts.” 46 Fed. Reg. at 53,424-25. The agency promised to undertake this effort “entirely apart from the pending proceed- ing,” but noted that “this effort will predominantly affect the same population that the automatic belts would be aimed at.” Id. at 53,425. 25a safety standard.” The 1974 Amendments further specify that [Is leetion 553 of title 5 [the APA] shall apply” to occupant crash protection standards promulgated under the congressional review procedures. 15 U.S.C. 1410bic) (2). As a result, the standard of review ap- pears easily formulated. It is well established that the familiar “arbitrary and capricious” test applies to in- formal rulemaking conducted pursuant to section 553 of the APA. See, ¢.g., Camp v. Pitts, 411 U.S. 138 (1973); Pacific Legal Foundation v. Dep’t of Trans- portation, 593 F.2d at 1343. The appropriate scope of judicial review remains the most troublesome question in this case, however, because we are called upon to review the rescission rather than the promulgation of an agency rule. The scope of review in such a situation appears to be a matter of first im- pression, even though judicial review of orders revoking a standard is specifically authorized by the Safety Act and the APA. The appropriate scope of our review is also a question of some complexity. At first view, re- scission more resembles agency refusal to act than an agency decision to act, and the distinction has signifi- cance for the degree of judicial deference paid to the agency. As we receatly noted in WWHT, Inc. v. FCC, 656 F.2d 807, 818-19 (D.C. Cir. 1981), it is only in the rarest and most compelling circumstances that courts overturn an agency’s “ ‘expert’ determination not to pursue a particular program or policy at a given time.” Although the WWHT court held that an agency’s denial of a petition for rulemaking was subject to judicial re- view, the opinion emphasized that “the scope of review of such a determination must, of necessity, be very nar- row.” Id. at 809. In Natural Resources Defense Council v. SEC, 606 F.2d 1031 (D.C. Cir. 1979), the court reached a similar conclusion in reviewing a situation in which the agency terminated a rulemaking proceeding without issuing a rule: As is typical in informal rulemaking cases under section 4 of the APA, 5 U.S.C. § 553, many of the issues raised here are within the province of agency expertise and do not readily lend themselves to judi- cial oversight. ... [O]ur review of the Commission’s factual, and particularly its policy, determinations will perforce be a narrow one.... Id. at 1052-53. These cases may be distinguished, of course, from the one before us. NHTSA has not denied a petition for rulemaking, or failed to issue a rule after a proceeding, but has rescinded a rule that has already been promulgated. Even so, the parallels are obvious, and dictate caution in formulating the appropriate scope of review here. In recent years, however, courts have increasingly em- phasized that the “arbitrary and capricious” standard zncompasses intensive as well as deferential judicial scrutiny, depending in part on the nature of the particu- lar problem faced by the agency.” Natural Resources Defense Council, 606 F.2d at 1050. In Citizens to Pre- serve Overton Park, Inc. v. Volpe, 401 U.S. 402, 415 (1972), the Supreme Court interpreted the arbitrary and capricious test to require a “substantial inquiry” sub- jecting the agency’s action to “a thorough, probing, in- depth review.“ The prior adjudications under the * In City of Chicago v. FPC, 458 F.2d 731, 742-45 (D.C. Cir. 1971), cert. denied, 405 U.S. 1074 (1972), this court followed Over- ton Park in explaining why judicial review of informal rulemaking must be “searching and careful,” notwithstanding the “quasi- legislative” nature of such rulemaking. See generally Verkuil, Judicial Review of Informal Rulemaking, 60 Va. L. Rev. 185 (1974); Note, Judicial Review of the Facts in Informal Rulemaking, 84 YALe L.J. 1750 (1975). For possible explanations of the increasingly careful judicial review of informal rulemaking, see DeLong, /n- formal Rulemaking and the Integration of Law and Policy, 65 Va. L. Rev. 257, 278-84 (1979) (suggesting that “presumption of rea- soned neutrality” once given to agency action has been eroded by “the capture of regulatory agencies by special interests” and by 27a Safety Act concerning Standard 208 also illustrate that this review may be searching as well as deferential. Each decision reviewed NHTSA’s issuance of the passive restraint standard for whether it was supported by “sub- stantial evidence“ within the meaning of 5 U.S.C. 8706 (2) (E), even though in each instance the agency had promulgated the standard after informal rulemak- ing. In Chrysler Corp. v. Dep't of Transportation, the Sixth Circuit concluded that the substantial evidence test was required by the Safety Act, which mandates that “all of the evidence before the agency . . shall be included in the record” submitted to the reviewing court. 15 U.S.C. § 1894(a)‘') (referring to 28 U.S.C. § 2112(b)). 472 F.2d at 668. In Pacific Legal Founda- tion v. Dep’t of Transportation, the court conducted a “thorough, probing, in-depth review” of the record, but declined to follow the Sixth Circuit’s invocation of the substantial evidence test because any difference was “largely semantic“: congressional creation of “the single-value agency”); Gellhorn & Robinson, Rulemaking “Due Process,” 48 U. Cui. L. Rev, 201. 202 (1981) (agency power to employ informal rulemaking procedures was not confirmes until 1956, and format was still relatively little used for the next fifteen years). is In Pacific Legal Foundation v. Dep't of Transportation, 593 F.2d at 1343 n.35, this court noted that the case for this approach was strengthened by the 1974 Amendments, which required that a public hearing be held on any proposed passive restraint standard. 15 U.S.C. 8 1410b(c)(2). But see 120 Conc. Rec. 35,636 (1974) (Representative Staggers) (under 1974 Amendments, DOT “would not be required to provide an adjudicatory hearing under sections 556 and 557 of title 5, United States Code; and judicial review of a standard promulgated under the section 125(c) procedure would not be under the ‘substantial evidence’ rule—since the agency hearing is not required to be ‘on the record); Automotive Parts & Acces- sories Ass’n v. Boyd, 407 F.2d 330, 336-37 (D.C. Cir. 1968) ( reject- ing argument that “record” meant “evidentiary record,” and refus- ing to infer that Congress “in this unnecessarily oblique way” in- tended to subject agency’s informal rulemaking to substantial evi- dence test). 28a We do not follow this reasoning because we agree with the emerging consensus of the Courts of Ap- peals that the distinction between the arbitrary and capricious standard and substantial evidence review is largely semantic, and that “in the review of rules of general applicability made after notice and com- ment rulemaking, the two criteria do tend to con- verge.” Associated Industries of New York State, Inc. v. Dep’t of Labor, 487 F.2d 342, 349-50 (2d Cir. 1973) .... [Wle agree with Judge Lumbard that “when an agency engages in substantive rule- making, it abuses its discretion (or acts arbitrarily and capriciously) if its actions are not supported by substantial evidence.” Nat’l Nutritional Foods Ass’n v. Weinberger, 512 F.2d 688, 705 (2d Cir. 1975) (Lumbard, J., concurring in the result). 593 F.2d at 1343 n.35. See Recording Industry Ass’n v. Copyright Royalty Tribunal, No. 80-2545, slip op. at 15-16 (D.C. Cir. Aug. 27, 1981); Sierra Club v. Costle, 657 F.2d 298, 323 n.67 (D.C. Cir. 1981); Paccar, Inc. v. NHTSA, 573 F.2d 632, 636 (9th Cir.), cert. denied, 439 U.S. 862 (1978); American Public Gas Ass’n v. FPC, 567 F.2d 1016, 1029 (D.C. Cir. 1977), cert. denied, 435 U.S. 907 (1978); Bunny Bear, Inc. v. Peterson, 473 F.2d 1002, 1006 (1st Cir. 1973). In short, although all parties in this case agree that we should apply the arbitrary and capricious standard of review, they differ markedly about the intensity and rigor with which that standard should be applied. NAII contends that there is a “heavy burden” on NHTSA to explain that its rescission is “rational and supported by substantial evidence.” Brief for Petitioner NAII (NAII Brief) at 19. State Farm urges that our review be “in- tensive and exacting,” Brief for Petitioner State Farm (State Farm Brief) at 21. Although NHTSA “welcomes the most intense scrutiny” and contends that Notice 25 is “supported by the evidence in the record,” Brief for 29a Respondent NHTSA (NHTSA Brief) at 19, the agency also urges that we exercise “a high degree of deference to the agency’s determination.” Id. at 24 (quoting Nat- ural Resources Defense Council, 606 F.2d at 1050). Before we decide this question, it may be useful to ask why the same verbal standard of review should be given different scope in different contexts. Part of the answer was suggested in Pacific Legal Foundation v. Dep’t of Transportation, where the court explained that its “probing” review was required by the fact that Sec- retary Adams’ decision to issue the 1977 rule (Modified Standard 208) had come on the heels of Secretary Cole- man’s decision four months earlier that such a standard was not required: In addition, because the order under review here reversea a prior policy, the agency must provide “an opinion or analysis indicating that the standard is being changed and not ignored, and assuring that it is faithful and not indifferent to the rule of law.” 593 F.2d at 1343-44 (quoting Columbia Broadcasting System, Inc. v. FCC, 454 F.2d 1018, 1026 (D.C. Cir. 1971)). As Judge Leventhal observed over a decade ago, sharp changes of agency course constitute “danger sig- nals” to which a reviewing court must be alert. Joseph v. FCC, 404 F.2d 207, 212 (D.C. Cir. 1968). He elab- orated in a later case: Judicial vigilance to enforce the Rule of Law in the administrative process is particularly called upon where, as here, the area under consideration is one wherein the Commission’s policies are in flux. An agency’s view of what is in the public interest may change, either with or without a change in cir- cumstances. But an agency changing its course must supply a reasoned analysis indicating that prior policies and standards are being deliberately changed, not casually ignored 30a Greater Boston Television Corp. v. FCC, 444 F.2d 841, 852 (D.C. Cir.), cert. denied, 403 U.S. 923 (1971). See RKO General, Inc. v. FCC, 670 F.2d 215, 223-24 (D.C. Cir. 1981); Local 177, Democratic Union Organizing Comm. v. NLRB, 603 F.2d 862, 882 (D.C. Cir. 1978) (agency must announce “principled reason” for reversal of policy). The difficulty with these observations is that they blend judicial review of agency adjudications and licens- ing with review of agency rulemaking. Intuitively, at least, it seems obvious that concern for consistency in an agency’s decisionmaking should be greatest when the agency departs from an adjudicative precedent or a well established licensing rule, and less grave when the agency reconsiders the value of a “quasi-legislative” rule of gen- eral applicability. Precedents by definition must be the basis for future reliance, and a sudden agency departure suggests that parties may have been treated unfairly. See, e.g., Boston Edison Co. v. FPC, 557 F.2d 845, 849 (D.C. Cir.), cert. denied sub nom. Towns of Norwood, et al. v. Boston Edison Co., 434 U.S. 956 (1977) (should agency decide to reverse its course, it must give notice “and apply the changed standard only to those actions taken by parties after the new standard has been pro- claimed as in effect”). In contrast, even the eleventh- hour decision not to promulgate a regulation has less impact on regulated parties. This may explain why rule- making proceedings that terminate short of agency ac- tions, e.g., Natural Resources Defense Council v. SEC, 606 F.2d 1031, and agency decisions not to conduct rule- making proceedings at all, e. g., WWHT, Inc. v. FCC, 656 F.2d 807, are tested under a “very narrow” reading of the arbitrary and capricious test. The agency’s refusal to act may reflect its desire to use scarce resources on more pressing problems, or its judgment that a problem is trivial or nonexistent. See Moog Industries, Inc. v. FTC, 355 U.S. 411, 413 (1958). Agency departure from 3la precedent raises obvious problems, but why should courts have similar concerns about erratic agency policymaking or reversals in the course of rulemaking? The answer to this question lies in the fact that an agency is not a legislature.’ Congress delegates rule- making power in the anticipation that agencies will per- form particular tasks. Reviewing courts are required to strike down agency action that exceed this mandate. See, e.g., 5 U.S.C. § 706(2)(C). Even when there is no claim that the agency has exceeded its jurisdiction, as there is not in this case, sudden and profound alterations in an agency’s policy constitute “danger signals” that the will of Congress is being ignored. The few cases in which agency decisions not to institute rulemaking have been overturned, for example, primarily involve plain errors of law, suggesting that the agency has been blind to the source of its delegated power. See, e.g., NAACP v. FPC, 520 F.2d 432 (D.C. Cir. 1975), aff'd, 425 U.S. 662 (1976) (Commission erred in concluding that it lacked jurisdiction to promulgate regulations concerning racial discrimination by licensees); NORML v. Ingersoll, 497 F.2d 654 (D.C. Cir. 1974) (bureau erred in rejecting filing of petition for rulemaking for reasons going to the merits). Cf. Los Angeles Women’s Coalition v. FCC, 584 F.2d 1089 (D.C. Cir. 1978) (per curiam) (remanding Commission’s denial of hearing on petition to deny li- cense for further development of factual issues). In 19 Indeed, the evolution of “arbitrary and capricious” review, see note 17 supra, may partially be explained by increasing judicial sensitivity to this fact. See, e.g., Superior Oil Co. v. FyC. 322 F.2d 601, 619 (9th Cir. 1963), cert. denied, 377 U.S. 922 (1964); Flying Tiger Line, Inc. v. Boyd, 244 F.Supp. 889, 892 (D.D.C. 1965) (in- formal rulemaking proceedings “are analogous to hearings con- ducted by Congressional Committees”); cf. Pacific States Bor & Basket Co. v. White, 296 U.S. 176, 186 (1935) (“the presumption of the existence of facts justifying its specific exercise attaches alike to statutes, to municipal ordinances, and to orders of administrative bodies“) 32a Geller v. FCC, 610 F.2d 973, 979 (D.C. Cir. 1979) (per curiam), the court reversed the agency’s “plainly mis- guided” refusal to consider the possible effect of newly enacted copyright legislation on its earlier regulations. As we recently described the Geller rule, “an agency may be forced by a reviewing court to institute rulemaking proceedings if a significant factual predicate of a prior decision on the subject (either to promulgate or not to promulgate specific rules) has been removed.” WWHT, Inc. v. FCC, 656 F.2d at 819. This articulates in specific terms the general principle that administrative agencies derive their power from the laws of Congress and have no authority to act inconsistently with their statutory mandate. The same tenet may be identified in adjudica- tions under 5 U.S.C. § 706 (1) to “compel agency action unlawfully withheld or unreasonably delayed.” In determining the scrutiny with which the arbitrary and capricious standard should be applied to NHTSA’s rescission of Modified Standard 208, then, we must first consider the extent to which NHTSA’s action may be inconsistent with the congressional purpose behind the Safety Act. It may seem unusual to discuss this legisla- tive history before a precise standard of judicial review has been formulated, but in this case there is no better way to undertake such a task. A. Standard 208 in Congress Our review of the legislative history of the 1974 Amendments to the Safety Act and the subsequent con- gressional reaction to Modified Standard 208 suggests that e standard has come as close as an agency-made regulation can come to being affirmatively endorsed by Congress, without Congress actually having done so. Al- though Congress has always considered the standard politically controversial, the regulation has received suffi- cient congressional approval to raise doubts that NHTSA’s rescission necessarily demonstrates an effort to fulfill its 33a statutory mandate. Three separate periods of the stand- ard’s history in Congress merit close attention. The first is late 1974, when Congress banned the ignition interiock and continuous buzzer but did not foreclose NHTSA’s pur- suit of a passive restraint standard. The second period is late 1977, when NHTSA submitted Modified Standard 208 to both houses of Congress in accordance with the legislative veto provisions of 15 U.S.C. S 1410b, but con- current resolutions of disapproval were not enacted. The final period is early 1980, when Congress contemplated new amendments to the Safety Act that would have re- fined Modified Standard 208 but would not have abolished it. 1. Passive restraints in 1974 In 1974, Standard 208 had not yet been modified by Secretary Adams. It called for the mandatory installa- tion of passive restraints by August 15, 1976, and pro- vided that during the preceding two-year period auto- mobiles either should have passive restraints, or should be equipped with an ignition interlock and continuous buzzer to encourage use of manual seatbelts. As noted abov2, see p. 9 supra, the public reaction to the interlock and continuous buzzer was swift and furious, and a chief purpose of the 1974 Amendments was to ban them. Congress could not help knowing about the pending date for mandatory passive restraints, however, and the in- structive aspect of the 1974 period is that Congress en- couraged NHTSA to proceed with such a standard under carefully constructed legislative conditions. The 1973 Senate bill for NHTSA authorizations con- tained no provision dealing with the passive restraint standard. But see 119 Conc. Rec. 16,054 (1973) (Sen- ator Magnuson) (noting that airbags “have proven to be both reliable and life saving,” and proposing $3 million authorization “to equip General Services Administration vehicles with airbag systems”). In the House, however, 34a opponents of the ignition interlock broadened their criti- cism to include passive restraints as well. Representative Wyman, who later described himself as “the prime spon- sor of the interlock prohibition,” 120 Conc. Rec. 35,637 (1974), proposed a broad amendment to the Safety Act that would have made it impossible for NHTSA ever to promulgate a standard requiring mandatory passive re- straints. Id. at 27,822. Representative Moss proposed to amend this amendment so as not to affect the “pending regulation, which already has been published, on which comment has been received, for the passive restraint system to become effective” as planned. /d. But Representative Wyman insisted on his version, arguing that passive restraints should be available only as options, and the Wyman amendment passed overwhelmingly. /d. at 27,822-23. When the House and Senate bills went to conference, however, the Wyman amendment was discarded. Instead, the conference version proposed: No occupant restraint system other than a belt sys- tem could become effective until Congress was given an opportunity to consider such standard for sixty days of continuous session (except that DOT could permit a manufacturer (at his option) to comply with a standard with a nonbelt system instead of a belt system). H.R. Conr. Rep. No. 1452, 93d Cong., 2d Sess. 45 (1974). The Senate approved the report without a re- corded vote, 120 Conc. Rec. 35,037 (1974), but most relevant comments were favorable. Senator Magnuson suggested that exciting new technology on the immediate horizon will save more lives than all of the other [motor vehicle] standards heretofore promulgated put to- gether. ... Congress has vested the Department with all of the authority it needs to get the job done. The burden is now with the Department to move 35a forward with a sense of urgency. The problem is urgent. Id. at 35,036; see id. (statement of Senator Hartke) (noting high benefit-cost ratios of passive restraint sys- tems). The House also approved the conference report without a recorded vote, id. at 35,637, with Representa- tive Wyman also urging its adoption, id. As the 1974 Amendments were interpreted by mem- bers of Congress, NHTSA was required to follow four main steps before a “nonbelt” safety standard could be promulgated.“ Representative Staggers, chairman of the House Committee on Interstate and Foreign Commerce with jurisdiction over the legislation, explained that the 1974 Amendments required (1) a modification in DOT’s notice and comment requirements in order “to permit interested persons to present oral presentation”; (2) specific provision for “input” by members of Congress; (3) transmittal of any proposed standard to Congress; and (4) application of the legislative veto provisions of 15 U.S.C. § 1410b. See 120 Conc. Rec. 35,636 (1974). With these conditions, the way was clear for NHTSA to try again. Congress obviously anticipated that a test of the passive restraint standard would come when a revised standard was sent to it on a later date. NHTSA complied 20 In presenting the Conference Report to the House, Representa- tive Staggers emphasized that a “nonbelt” standard included stand- ards that could be met by seatbelts if they could also be met by nonbelts. The legislative veto provisions affect “not only a standard which by its terms requires the system but also a performance standard which as a practical matter can only be met by use of that system. Thus, if an occupant restraint standard requires passive restraints, which as a practical matter can be provided only hy an airbag or other nonbelt system, then the standard would be regarded as having the effect of requiring a nonbelt system.” 120 Conc. Rec. 35,635 (1974) (Representative Staggers). But see Pacific Legal Foundation v. Dep't of Transportation, 593 F.2d at 1349 (declining to reach contention of petitioners that Modified Standard 208 was not covered by legislative veto provision of 1974 Amendments and should not have been submitted to Congress at all). with these procedural requirements, and transmitted Modified Standard 208 to Congress on June 30, 1977. 2. Passive restraints in 1977 Concurrent resolutions to disapprove Modified Stand- ard 208 were introduced in each house almost immedi- ately upon congressional receipt of the standard. See, e.g., 123 Conc. Rec. 21,760 (1977) (resolution introduced by Senator Griffin on June 30, 1977); id. at 24,168 (seven identical resolutions introduced in the House on July 20, 1977). These resolutions were then sent to the appro- priate committees. In the House, the Subcommittee on Consumer Protection and Finance of the Committee on Interstate and Foreign Commerce concluded hearings on September 23.“ The subcommittee voted by voice vote to recommend to the full committee that the resolution of disapproval not pass. The full committee voted to table the resolution of disapproval on October 12. As a result, the standard was not considered by the House and no concurrent resolution of disapproval was passed.“ In the Senate, four days of hearings were held by the Consumer Subcommittee of the Committee on Commerce, Science, and Transportation. The subcommittee voted unanimously, 5-0, to disapprove the resolution of disap- proval. The full committee voted by voice vote to report the resolution to the Senate, again with the recommenda- tion that the resolution of disapproval not pass. S. REP. No. 481, 95th Cong., Ist Sess. (1977). On October 12, 21 Installation of Passive Restraints in Automobiles: Hearings before the Subcomm. on Consumer Protection and Finance of the House Comm. on Interstate Finance, 95th Cong., Ist Sess. (1977). 22 The subcommittee and committee actions were not reported. This legislative history is recounted in S. Rep. No. 481, 95th Cong. Ist Sess. 2 (1977). See 123 Conc. Rec. 33,318 (1977) (Senator Ford) (subcommittees and full committees “of both Houses of Congress . have voted with bipartisan support to uphold Secre- tary Brock Adams’ decision”). 37a the full Senate voted 65-31 to table the resolution. 123 Conc. Rec. 33,332 (1977). Modified Standard 208 could have been disapproved only by concurrent resolution of both houses; neither house voted to disapprove the stand- ard, and Modified Standard 208 thus went into effect. Throughout the Senate review, Modified Standard 208 received not grudging acceptance but positive support. The Senate report stated that the standard “would pro- vide major increased protection for front-seat automobile occupants” that could save “more than $3.5 billion an- nually.“ S. Rep. No. 481, 95th Cong., Ist Sess. 2-3 (1977). On the floor, one speaker after another affirmed the need for the standard. See, e.g., 123 Conc. Rec. 33,318 (Senator Ford) (“the hearing record contains overwhelming support for the Department of Transporta- tion’s rule”); id. at 33,319 (Senator Ribicoff) (noting “well proven” efficiency of airbags) ; id. at 33,320 Sen- ator Durkin) (“the only way to have our citizens pro- tected by passive restraints is to mandate them”) ; id. at 33,325 (Senator Bentsen) (the rule is “in the best in- terest of the public... . [P]assive restraint systems are the most effective way to improve vehicle safety“); id. at 33,329 (Senator Magnuson) (“it is time to put this mat- ter to rest“); id. at 33,330 (Senator Baker) (supporting standard because “there is ample evidence indicating that air bags are effective in preventing injuries, that they would save thousands of lives and prevent many more serious injuries annually if installed on all cars, and 23 Intervenor Motor Vehicle Manufacturers Association (MVMA) characterizes the committee’s decision as “a 9 to 7 vote.” Brief for Intervenor MVMA (MVMA Brief) at 49 n.55. This is by no means clear. As the Senate Report emphasized, “[t]he only record vote was on the motion of Senator Ford to amend the motion of Senator Griffin,” so that Concurrent Resolution 31 be reported unfavorably rather than without recommendation. S. Rep. No. 481, 95th Cong. Ist Sess. 25 (1977). The decision to report the resolution to the full Senate was made by voice vote, and only four of the sixteen mem- bers of the committee joined in the “minority views.” Jd. at 31 (Senators Cannon, Griffin, Goldwater, and Schmitt). 38a that they are not hazardous”). Even critics of the standard focused more on the desirability of further test- ing and promotion of the systems than outright opposi- tion to the standard. See, e.g., id. at 33,322 (Senator Goldwater) (“trying to argue against the idea of saving lives is a lot like arguing against free beer and mother love. It is a difficult thing to do”); id. at 33,325 (Sen- ator Cannon) (urging DOT to reinstitute Coleman dem- onstration project) ; id. at 33,327 (Senator Griffin) (seek- ing more experimentation or reinstatement of Coleman demonstration project). 3. Passive restraints in 1980 The refusal by Congress in 1977 to disapprove Modi- fied Standard 208 did not terminate debate on the ques- tion of passive restraints. Opponents of passive restraints in the House criticized not only the standard, but the fact that the 1977 resolution of disapproval had been “bottled up” in committee, thus depriving its supporters of opportunity for floor debate. See, e.g., 124 Conc. REC. H 5308 (daily ed. June 12, 1978) (Representative Shus- ter); id. at H 5313 (Representative Devine). As dis- cussed above, see p. 12 supra, riders were attached to NHTSA appropriations bills for 1979 and 1980 that pro- hibited DOT from implementing the passive restraint standard in those years. Congress recognized that the standard was not scheduled to be implemented until 1981, however, and these measures did not interfere with NHTSA research and testing of passive restraints. See id. at H 5309 (Representative Conte); id. ui H 5313 (Representative Staggers). Representative Dingell, a co-sponsor of the 1979 rider, observed that “{t]he amend- ment does not interfere with the progression toward the effective date, model year 1982, of the passive restraint standard.” 125 Conc. Rec. H 8055 (daily ed. Sept. 18, 1979) .** 24 Other congressional voices during this period were favorable, however. In reporting on the National Traffic and Motor Vehicle The passive restraint standard was again examined in great detail by the 96th Congress during deliberations on the Motor Vehicle and Cost Savings Authorization Act of 1980. The Senate bill, S. 1159, made no reference to the standard. See 125 ConG. Rec. S 9166 (daily ed. July 11, 1979). When the House bill, H.R. 2585, came to the floor, a number of speakers praised the standard. See, e.g., id. at H 12,282 (daily ed. Dec. 19, 1979) (Representative Staggers) (standard will “save not one, but many thou- sands” of lives); id. (Representative Mineta) (noting “grave concern about any amendments that would have the effect of delaying implementation of the automatic restraint program,” and that el ach time the standard has been reviewed, it has been reconfirmed”) ; id. (Rep- resentative Maguire) (“we should go forward aggres- sively with this program”). Other speakers found it “disheartening” that “the Congress again appears to be going along with [NHTSA] in its continuing tendency toward excessive reliance on the airbag.” Id. at H 12,283 (Representative Cleveland). On the floor, however, Representative Stockman pro- posed an amendment to the Safety Act that would have denied NHTSA funds to enforce or administer an occu- pant restraint system unless such standard or regulation also permits the purchaser of a passenger car to select any occupant restraint system which, if installed in the passenger Information and Cost Savings Authorizations Act, the House Com- mittee on Interstate and Foreign Commerce referred to a report two years earlier that had found a slackening in issuance of new vehicle safety standards since 1970, partly as a result of political pressure against the issu- ance of FMVSS 208, the passive occupant restraint stand- ard .... Since the time of that report, the passive restraint standard has been issued and upheld by the Congress. . The committee believes that the agency is now making satisfactory progress in carrying out its legislative mandate. H.R. Rep. No. 1162, 95th Cong., 2d Sess. 9-10 (1978). 40a car purchased by such purchaser, would comply with the requirements of Federal Motor Vehicle Safety Standard Number 208 (49 Code of Federal Regula- tions 571.208), relating to the installation of active seat belt systems, as in effect at the end of June 29, 1977. Id. at H 12,285. Representative Stockman explained that the amendment “preserves the right of the consumer to choose either an active restraint system, which is the lap- shoulder belt that we have on cars today, or a passive restraint system, which in practice means the airbag for large cars, and the automatic seatbelt for small cars.” Id. Representative Scheuer, chairman of the reporting committee, did not oppose the Stockman amendment be- cause it is only a symbolic amendment with no real or direct legal impact on the Department of Transportation’s passive restraint standard.” Id. He explained: The standard is scheduled to go into effect beginning in 1982. This amendment, however, is an amend- ment to a 1-year bill authorizing the appropriations of funds for carrying out the National Traffic and Motor Vehicle Safety Act for fiscal year 1980 only. Further, the amendment continues to allow for the installation of airbags or passive seatbelts, while providing for an additional option—active seatbelts. This is an option which would have existed regard- less of whether this l-year amendment was adopted. Id. Representative Stockman responded, however, that “this is a proposal we have not voted on previously. This is a compromise solution that is designed to mandate the introduction of these things into the market, mandate the offering of passive restraints on every car that is sold by any manufacturer in the U.S. market, but give the consumer the choice of which system he will actually choose to have on his car.” Jd. The Stockman amend- 4la ment passed overwhelmingly, 320-73. It should be noted that most of the members who had earlier praised Modi- fied Standard 208—including Representatives Mineta, Scheuer, and Staggers—were among those voting with the majority. /d. at 12,287. Like the Wyman amendment six years earlier, the Stockman amendment was also discarded when che House and Senate bills went to conference. The Conference Re- port proposed several important revisions to Modified Standard 208, however, in the form of a proposed amendment to the Safety Act. First, the amendment would have accelerated the date by which the standard applied to small cars. H.R. Conr. REP. No. 1371, 96th Cong., 2d Sess. 15 (1980). The legislative history sug- gests two reasons for this change. “With the anticipated increase in smaller, more fuel efficient [and more dan- gerous] cars on the Nation’s highways, it is in the in- terest of public safety that passive occupant restraint protection should be required in these cars as soon as pos- sible.” Id. Moreover, the standard as promulgated would not have applied to small cars until two years after the effective date for compliance on large cars, and it was felt that this “would place domestic manufacturers at a great disadvantage against foreign competition.” 126 Conc. Rec. S 13,499 (daily ed. Sept. 25, 1980) (Senator Cannon). Second, the conference substitute recognized the trend by automobile manufacturers toward phasing out various large car models in favor of smaller ones. It therefore exempted “certain smaller manufacturers from having to install automatic occupant restraint systems in mid-sized cars that will [no longer] be produced after December 31, 1982,” although these marufacturers would still be re- quired to comply with the applicable requirements for models produced the following year. H.R. CoNF. REP. No. 1371, 96th Cong., 2d Sess. 15 (1980). Third, the con- ference substitute would have required that 42a beginning with model year 1983, each seatbelt as- sembly installed in a passenger car must be detach- able by the user in a manner which doc. ot impair the subsequent reattachment and performance of the assembly. The conferees intend that the passive belt can be detached at any point, including one adjacent to the inboard anchor. Id. at 17. The final and perhaps most significant revision pro- posed by the conference report concerned airbags. The five automobile manufacturers with the largest sales— GM, Ford, Toyota, Nissan, and Volkswagen—would have been required to “tool and offer for sale” either as an option or as standard equipment airbags on at least one car line in any three of the four model years between September 1981 and September 1985. The conference re- port provided careful definitions of “tooling up” and “car line,” and added: It is clearly the expectation of the conferees that consumers have a meaningful choice in the market between vehicles equipped with automatic safety belts and with airbags. It is the hope of the con- ferees that the public will be informed of such choices and that automatic safety belts and airbags be made available at reasonable cost. Id. at 16. As Representative Maguire observed during the House consideration of the conference report, the requirement that larger car companies offer airbags “is a major 20 To “tool for production” meant that “a manufacturer must demonstrate that he has the capability for assembling cars with airbags on an assembly line in the customary fashion of the manu- facturer.“ H.R. Conr. Rep. No. 1371, 96th Cong., 2d Sess. 16 (1980) ; see id. (defining “car line”). “Further, it is the intent of the conferees that automatic safety airbags be made generally available and not limited to esoteric cars which are offered to a limited market for the purpose of frustrating the legislative intent.” Id. 43a change in policy.” 126 Conc. Rec. H 10,196 (daily ed. Oct. 1, 1980). Prior to this time, proponents of the pas- sive restraint standard had always emphasized that [t]he standard is a performance standard which does not require that any specific technology be utilized by automobile manufacturers .... Thus, the standard does not mandate that air cushion restraint systems (the air bag) be used. Passive belts may be used, or any other technology which meets the standard. S. REP. No. 481, 95th Cong., Ist Sess. 1 (1977); see id. at 17-18 (explaining reasons for not requiring airbags as a mandatory option). Now, for the first time, a com- mittee of Congress “has gone on record to assure con- sumers freedom of choice in the selection of restraint systems by requiring that some airbags be made avail- able to consumers who want to buy them.” 126 CONG. Rec. H 10,196 (daily ed. Oct. 1, 1980) (Representative Maguire) ; see id. at H 10,194 (Representative Scheuer). This “major change in policy” raised certain proce- dural problems, however, because Congress frowns on conference reports that depart significantly from the bills passed in the separate houses. The Senate adopted the conference report, without a recorded vote. 126 CONG. Rec. S 13,506 (daily ed. Sept. 25, 1980). As had been the case in 1977, most comments on the standard were favorable. See, e.g., id. at S 13,502-03 (Senator Warner) (supporting “the concept for automatic occupant protec- tion” because vehicle fatalities and injuries have reached “epidemic proportions,’ costing society billions of dol- lars annually). In the House, however, points of order were raised against the conference report because of clauses 3 and 4 of House Rule XXVII, rules of scope and g ©uaneness designed to prevent conferees from writing » ew legislation in conference. In such a situation, the conference report may still be considered in two ways. The more common is to obtain 44a a rule from the House Committee on Rules waiving the points of order. Alternatively, the conference report can be considered under a suspension of the rules, although this requires a two-thirds vote before the report is passed. The sponsors of the 1980 conference report chose the second course, a highly unusual move suggesting their confidence that the report would be accepted. See 126 Conc. Rec. H 10,194 (Representative Scheuer) (“The conferees carefully constructed a compromise which is simultaneously supported by DOT and NHTSA] and which GM and Ford have both said they can live with”). The reaction in the House was mixed, however. Compare id. at H 10,204 (Representative Mineta) (“The agree- ment reached by the conferees is a strong endorsement of the automatic crash protection standard 208”) with id. at H 10,198 (Representative Frenzel) (“this is the first time that the Congress will have ever mandated airbags by law and, because of that, in my judgment, this con- ference report ought to be rejected out of hand”). A majority of the House voted in favor of the report, 209- 192, but this was less than the two-thirds vote required under the suspension of the rules. The sponsors of the conference report then sought and obtained a rule that would waive points of order. H.R. REP. No. 1500, 96th Cong., 2d Sess. (1980) (10-4 vote of House Committee on Rules in favor of such a rule) ; see 126 Conc. Rec. H 11,912 (daily ed. Dec. 4, 1980) (Rep- resentative Bolling). This rule was strongly opposed on the floor, however, and was narrowly defeated, 165-168. Id. at H 11,918; see id. at H 11,912 (Representative Quil- len) (“If we do not draw that line now, we will be in- viting future conferees to write completely new legisla- tion in conference in total disregard of the wishes of the House”). As before, however, Congress recognized that the battle over amendments to Modified Standard 208 did not prevent the standard from taking effect. Representa- tive Dingell observed: 45a Mr. Speaker, this is not a partisan question The question is not even whether airbags or passive restraints are going in, because under existing law passive restraints, as opposed to airbags, which in- clude airbags but which also include other devices such as passive belts, are still required under regu- lation and some passive belts and others are and new ones will shortly be on the market. Id. at H 11,913. Minutes later, Representative Dingell repeated that “if we reject this proposal, Airbags and Motor Vehicle Safety Standard 208, whicu is a perform- ance standard, will still be in place and will not be af- fected by the action of the House in rejecting the action of a group of runaway conferees who have openly flaunted and disregarded the will of the House.” Id. at H 11,916. This latter effort to waive points of order against the conference report was made on December 4, 1980, the day before the end of session. On December 5, Representatives Dingell and Broyhill urged passage of “a compromise bill,” H.R. 8379, which Representative Dingell explained “is again an attempt to see to it that the consumer has an opportunity for choice in the purchase of passive restraints without mandating air bags in passenger auto- mobiles.” 126 Conc. Rec. H 12,119 (daily ed. Dec. 5, 1980). The compromise bill also proposed to reverse the effective dates of Modified Standard 208, requiring that small cars comply before large cars, but would have re- tained the requirement that all cars have passive re- straints by 1984. A large number of the representatives who had voted in favor of the Conference Report now voted against H.R. 8379, however. Representative Leland commented : To reverse decisions that have been made in behalf of the people of America and their safety, in my estimation, is a matter of madness and in the vernac- ular of the community from whence I come, this bill is jive. 46a Id. at H 12,123. See id. (Representative Eckhardt) ; id. (Representative Conyers). A majority voted in favor of the compromise bill, 205-126. But because it too had been considered under a suspension of the rules, H.R. 8379 also was rejected, and never even came up for considera- tion in the Senate. In summary, each of the three periods during which Congress closely considered the passive restraint standard represents a different type of legislative action. In 1974, Congress banned the ignition interlock but did not fore- close NHTSA’s pursuit of a passive restraint standard. In 1977, Congress allowed the standard to take effect when neither of the concurrent resolutions needed for dis- approval was passed. In 1980, a majority of each house indicated support for the concept of mandatory passive restraints, and a majority of each house supported the unprecedented attempt to require some installation of air- bags. None of these acts carries the weight of positive law, of course. The 1977 failure to disapprove the stand- ard cannot be read as a congressional enactment—even though it is easier to obtain a two-house veto than passage of a bill—and the 1980 efforts failed to become law. Reading this legislative history as a whole, however, sug- gests a congressional commitment to the concept of auto- matic crash protection devices for vehicle occupants that we may not take lightly. B. The Scope of Review in this Case Based on the legislative reaction to the passive re- straint standard discussed above, we conclude that rescis- sion of the standard must be subject to “thorough, prob- ing, in-depth review” lest the congressional will be ig- nored. On the facts of this case, our review must be as “searching and careful” as the judicial review in Pacific Legal Foundation v. Dep’t of Transportation, where the issue was the promulgation rather than the rescission of Modified Standard 208. 47a Mere legislative silence in the face of agency action is a hazardous basis from which to infer congressional ap- proval of the agency’s interpretation of the statutes in- volved. “However, a consistent administrative interpre- tation, shown clearly to have been brought to the atten- tion of Congress and not changed by it, is almost con- clusive evidence that the interpretation has congressional approval.” Kay v. FCC, 443 F.2d 638, 646-47 (D.C. Cir. 1970) ; see Udall v. Tallman, 380 U.S. 1, 17-18 (1965). The Safety Act directs that the Secretary shall“ issue appropriate motor vehicle safety standards; ordinarily this term “is the language of command.” Escoe v. Zerbst, 295 U.S. 490, 493 (1935) (Cardozo, J.). Despite the legislative battles over whether to specify an airbag re- quirement or when the standard should take effect, each time Congress reviewed the passive restraint standard it was essentially confirmed. “In the matter before us there is not merely silence, proposals languishing without any Congressional action, but positive action by Congress re- jecting the limiting amendments.” National Automatic Laundry & Cleaning Council v. Shultz, 443 F.2d 689, 706 (D.C. Cir. 1971). Although there may be situations in which an agency may repeal a regulation on no basis at all, such is not the case here. NHTSA is not writing on a clean slate; it cannot suggest that the congressiona! actions and failures to act described above have no bear- ing on the agency’s freedom to regulate on this question. It follows that NHTSA has the burden of explaining why it has changed course, and of showing that rescission of Modified Standard 208 was reasonable.“ 26 NHTSA denies that there has been any “fundamental policy change,“ NHTSA Brief at 19, and contends that placing the burden on NHTSA to sustain the validity of its action would “transgress the boundaries between judicial and legislative functions.” Id. at 24. NHTSA’s argument that there has been no policy change is somewhat disingenuous, however, because the agency immediately goes on to justify that change on the merits. See, e.g., id. at 20 (“The changed facts since the Adams decision required the Adminis- trator to make a different decision”); id. at 19 (earlier Adams de- 48a This does not mean that NHTSA may not revoke the standard. If the agency clearly articulates a reasonable basis for that action, we must defer to the policy judg- ments and expertise of the agency. By no means may we substitute the court’s judgment, or fail to “guard against the danger of sliding unconsciously from the narrow con- fines of law into the more spacious domain of policy.” Phelps Dodge Corp. v. NLRB, 313 U.S. 177, 194 (1941). The line between substitution of judgment and judging whether action has been rational or arbitrary is some- times fine, and to some critics imperceptible. We fully recognize, however, the side of ‘hat line from which the court derives its lawful authority. We also recognize that the course of administrative action is frequently and inevitably characterized by shifts and turns, as agencies continually reassess what is in the publie interest. But courts are “not obliged to stand aside and rubber-stamp their affirmance of administrative decisions that they deem inconsistent with a statutory mandate or that frus- trate the congressional policy underlying a statute.” NLRB v. Brown, 380 U.S. 278, 291 (1965. Judicial scrutiny of agency action—including the rescission of a rule—depends on the extent to which the agency has devi- ated from congressional expectations. An agency is sel- dom locked on course, but it must have increasingly clear and convincing reasons the more it departs from the path marked by Congress. We therefore review NHTSA’s rescission of Modified Standard 208 for whether the agency has engaged in reasoned decisionmaking, making actual judgments con- cerning the significance of the evidence in the record and cision “was itself a reversal” of the Coleman decision). See gener- ally 46 Fed. Reg. at 53,419 (purpose of rulemaking was to ensure that standard “reflects the changes in circumstances since the automatic restraint requirements were issued”); RIA at II-7 to II-10, J.A. 33-36 (rising gasoline prices, economic downturn, lower automobile sales and rising unemployment required changing the standard). 49a supporting its decision with ‘reasoned analysis.” City of Charlottesville v. FERC, 661 F.2d 945, 951 n.35 (D.C. Cir. 1981). We must ascertain the facts on which NHTSA relied, determine whether those facts have some basis in the record, and judge whether a reasonable de- cisionmaker could respond to those facts as the agency did. Recording Industry Ass’n v. Copyright Royalty Tribunal, slip op. at 15. The court must also assure itself that rescission is “based on consideration of the relevant factors,” FCC v. National Citizens Comm. for Broadcasting, 436 U.S. 775, 802-03 (1978); see Home Box Office, Inc. v. FCC, 567 F.2d 9, 36 (D.C. Cir.), cert. denied, 434 U.S. 829 (1977), and determine that NHTSA made “a considered evaluation of the presently available alternatives.” Pillai v. CAB, 485 F.2d 1018, 1029 (D.C. Cir. 1973). With this statement of the appropriate scope of our review, we turn to the merits of NHTSA’s action. III. THE ARBITRARINESS OF RESCISSION The rescission of Modified Standard 208 on the grounds stated by NHTSA was arbitrary and illogical for two general reasons. The agency has offered no evi- dence that seatbelt usage wil! fail to increase as was expected when the standard was first promulgated, and has therefore made no showing that the standard is unjustified as written. More important, NHTSA has failed to consider or analyze obvious alternatives to re- scission, and has thus artificially foreclosed attempts to further the purpose of the Safety Act. See Pillai v. CAB, 485 F.2d 1018, 1027 (D.C. Cir. 1973). When the agency so narrows its options that it fails to heed the goals that Congress has asked it to meet, the agency violates its basic legislative mandate. Simply put, NHTSA’s dis- cussion of ways in which Modified Standard 208 could have been amended was wholly inadequate, and rescission was therefore arbitrary and unlawful. A. Modified Standard 208 as Written NHTSA made three findings in deciding that the standard as written could not be justified, and should either be amended or rescinded. First, most automobile manufacturers planned to use detachable passive belts. Second, once detached, a detachable belt “becomes iden- tical to a manual belt.” Finally, NHTSA “cannot reli- ably predict even a 5 percentage point increase as the minimum level of expected usage increase.” See 46 Fed. Reg. 53,421-23. Although the petitioners challenge each step of this reasoning, we conclude that NHTSA’s first finding was not unreasonable. The prediction of how industries plan to comply with an agency regulation is exactly the sort of factual question on which the agency’s expert “admin- istrative feel” deserves the greatest deference. It was not unreasonable for NHTSA to conclude, from the com- ments that appear in the record, that most manufac- turers did indeed plan to install detachable passive seat- belts in order to comply with the passive restraint standard. NHTSA’s second finding is also reasonable, although it is important to note the limitations of this finding. The observation that a detachable belt, once detached, is func- tionally equivalent to a manual belt, does not dictate any conclusion about the usage rate of detachable belts. Any suggestion that this finding alone leads to a prediction that usage rates under the two systems would be iden- tical is inconsistent with NHTSA’s third finding, which * See note 11 supra; MVMA Brief at 28 n.30. We recognize, of course, that although deference must be given to this agency finding, it may nevertheless be erroneous. See NAII Brief at 25 (“logic would suggest that given a choice between two passive restraint sys- tems of equal cost and consumer acceptance, manufacturers would choose the one that is the safest”). Indeed, the primary empirical problem in this case arises precisely because automobile makers have not used detachable belts thus far in voluntarily providing passive restraints. See note 30 infra. 5la acknowledged that even detachable passive belts would make some difference in seatbelt usage.** The rationality of NHTSA’s conclusion about the standard as written depends entirely on how well its third step—predicting usage rates with detachable belts—holds up. In taking this third step, NHTSA turned the question on its head and thus totally misdirected its analysis. There may well be “substantial uncertainty” about the seatbelt usage rates that can be predicted if detachable belts are widely used. But the question is not whether evidence shows that usage rates will increase by the necessary amount, but — there is evidence showing they will not. NHTSA has some burden, in other words, to show that a regulation once considered to prevent deaths and injuries efficiently can no longer be expected to do so. This evidence may take the form of statistical data or logical argument, but it must exist in some form. To state this point in the reverse, it would be unrea- sonable for an agency to promulgate a regulation simply because of “substantial uncertainty” that the status quo was any better. There must be some reason to support any reasoned decision. There is not one iota of evidence to support NHTSA’s conclusion that Modified Standard 208 as written will fail to increase nationwide seatbelt use by 13 percentage points or more. No logical reason has been suggested why even detachable belts—except under a certain con- dition whose frequency is not known—cannot lead to safety benefits that exceed their relatively small mar- 28 46 Fed. Reg. at 53,425. This conclusion is certainly supported by logic, because whereas a detached belt may be “identical to a manual belt,” a connected belt is identical to a passive restraint. If users at some point detach these belts, they may indeed leave the belts unattached for a series of their subsequent trips. When those users remember to reattach the belts, however, inertia is again on the side of belt usage. See note 33 infra. ginal costs.“ Statistics concerning usage rates of the passive seatbelts now in service suggest exactly the op- posite, and NHTSA’s conjectural efforts to distinguish these systems miss the point.“ If, as NHTSA contends, 29 See note 9 supra (marginal cost of VW passive belts is $50). As NHTSA observes, “[wJith car prices increasin, annually by more than $1,000, the added price of automatic restraints, although not insignificant, is still a small portion of total increases and may go undetected by consumers.” RIA at IX-4, J. A. 219. % See note 12 supra (passive restraints now in use increase usage rates on particular models to between 70 and 90%). Although NHTSA refused to extrapolate from these statistics for the reasons discussed in note 14 supra, this merely left the agency with no data “which can be used to predict automatic belt usage.” RIA at IV-55, J.A. 111. See NHTSA Brief at 36-37 (agency had a “total absence of empirical and attitudinal information on the readily detachable belt”). We note that NHTSA’s reasons for refusing to extrapolate from the available data are extremely weak. Three of the four factors discussed in note 14 supra were undercut by the agency's own analysis. See RIA at IV-54, J.A. 110 (“generally it is not true” that voluntarism biases existing data, because a number of current users “did not know they were getting automatic belts and others accepted the automatic belt equipped car because it was the only car available with the other options they wanted”); id. (demographic argument “is somewhat, although not totally, negated” by adjust- ing data to acount for higher usage of manual belts; moreover, although VW owners may be atypical of the fleet, GM Chevette owners are not). NHTSA’s final concern was that interlocks on some of these vehicles “would account for four-fifths of the [usage] increase observed.” There are three major difficulties with this undocumented conclusion. First, although GM eliminated the inter- lock on the 1980 Chevette, the usage rate of passive belts on those models actually increased over the interlocks-guarded belts on 1978 and 1979 Chevettes. See RIA at IV-33, B-8, J.A. 89, 292 (38% incremental use on 1979 model, 39% incremental use on 1980 model) Second, NHTSA’s surveys suggested that the high usage rates on current models should be attributed to factors other than the coercive effect of the interlock. See id. at IV-36, J.A. 92 (67% of VW owners in Opinion Research Corporation survey said they would use the passive belts even if there were no interlock); id. (same survey finding more favorable later impressions than i.rst 53a the passive belts now in use cannot be the basis for pre- dicting usage rates under Modified Standard 208, then only a well justified refusal to seek more evidence could render rescission non- arbitrary. National Ass’n of Dem- olition Contractors v. Costle, 565 F.2d 748, 751-52 (D.C. Cir. 1977). NHTSA could have conducted surveys or ex- perimented with detachable belt prototypes, or it could have explained logically why usage rates with detachable belts would increase less than 13 percentage points. The agency did not do so; it rested its decision only on “sub- impressions of passive belts); id. at IV-40, J.A. 96 (focus group studies identifying common reaction to passive belts of “relief” that automatic belts could resolve conflict between what passengers feel they should do and what they actually do). See generally note 33 infra. Finally, the record suggests that the effect of interlocks may actually be relatively insignificant in promoting seatbelt use. See RIA at IV-39, J.A. 95 (NHTSA rental car survey showing 13% use of shoulder belts without interlock and 15% use with inter- locks). See generally note 12 supra ‘(interlocks in 1975 only suc- ceeded in raising manual belt use from 20% to 40%). In their briefs, NHTSA and MVMA suggest yet another reason not to extrapolate from current data. The alleged consumer re- sistance to the 1980 Chevette, see NHTSA Brief at 13 n.7, MVMA Brief at 57 n.66, is said to show that negative consumer reaction would have “an increasingly adverse effect on overall seat belt usage rates.” NHTSA Brief at 58. Aside from the fact that post- hoc rationalizations of counsel carry no weight in our review of agency decisionmaking, Buriington Truck Lines, Inc. v. United States, 371 U.S. 156, 168-69 (1962), it is difficult to see exactly how speculation about abstract consumer preferences detracts from concrete data concerning current usage rates. As NHTSA observes, “GM’s comparison of voluntary purchase of automatic belts in Chevettes to potential consumer reaction to mandated automatic belts may be fallacious.” RIA at IX-4, J.A. 219. Consumers may voluntarily purchase passive restraints with low frequency for the same reason that vehicle occupants wear manual belts with low frequency, i.e. “people obviously have little information on either the safety risks inherent in motor vehicle travel or the relative benefit of belts, be they manual or automatic.” Id. at IX-5, JA. 220. See id. at IV-41, J.A. 97 (Americans view collision survival “in very unsophisticated terms,” with “virtually no apparent aware- ness of ‘secondary collision’”). See generally note 33 infra. 54a stantial uncertainty” about these rates. Its decision to rescind the standard thus was arbitrary because the decision was supported by no record evidence whatsoever. We do not mean this portion of our opinion to seem simplistic. Implicitly, the perpetuation of a regulation also involves a decision that its continuation is worth- while, and reasonable decisionmaking requires that this too be supported by reasons. If NHTSA was uncertain that Modified Standard 208 would lead to the required usage increase, it could reasonably have decided to sus- pend or amend the regulation rather than plunge ahead in the blind faith that the standard would succeed. In- deed, this was originally how the agency framed the questions that led to the most recent rulemaking pro- ceedings.“ But it is one thing to decide that evidence fails to show the wisdom of continuing with a regulatory program, and quite another to decide that evidence shows the regulatory program should be abandoned altogether. There is no evidence at all that detachable passive belts will fail to increase seatbelt usage by 13 or even 50 per- centage points, and NHTSA thus went one step further than reason can support. B. Other Forms of Modified Standard 208 NHTSA explicitly considered a series of alternative amendments to Modified Standard 208 before deciding to rescind the standard. Its notice of proposed rulemaking proposes a wide range of possible changes to the automatic restraint requirements. The Depart- ment desires to ensure that it is taking the most effective and reasonable approach to addressing the serious safety problem posed by the low rate of 31 See text at note 32 infra. DOT noted its concern that several automobile manufacturers “plan automatic belts [sic] designs which have a release buckle identical to the buckle on current manual belt systems,” with the result that “[u]Jsage could thus in fact turn out to be low.” 46 Fed. Reg. at 21,176 (April 9, 1981). 55a safety belt use in all cars and by the steadily de- creasing average size of new cars sold in this country. 46 Fed. Reg. at 21,205-06. The agency considered whether to reverse the sequence of compliance so that small cars would be required to comply before large cars, and whether to amend the standard so as to require simultaneous implementation on all car sizes. NHTSA also considered amending the standard in order to exempt the front center seating position, while retaining the re- quirements for the driver and front right passenger seats. In reviewing these possibilities, NHTSA’s Regula- tory Impact Analysis (RIA) was impressively thorough and careful.” In striking contrast, neither NHTSA’s decision nor its RIA devoted even a modicum of reasoned analysis to several far more obvious possible amendments to Modified Standard 208. The decision briefly discussed—and sum- marily rejected—amending the standard so as to elimi- nate compliance by detachable belts. The RIA, which was otherwise replete with economic and safety estimates and other data, did not once attempt to analyze the con- sequences of such an amendment. Even more striking is the agency’s failure to consider amending the passive 32 See, e. g., RIA at IV-63 to IV-71, J. A. 119-27. NHTSA’s discus- sion of whether to delete the requirement of passive protection for front center seating positions was a model of careful analysis. See id. at IV-73, J.A. 129 (analyzing deaths by seating position) ; id. at IV-79, J.A. 135 (adjusting fatality figures for front right position to reflect the fact that bucket seats would prevent passen- gers from sitting in center seat); id. at IV-S6, J. A. 142 (analyzing net impact on fatalities and injuries). In short, NHTSA devoted 15 pages of its RIA to a discussion that “has no relevance if the standard is rescinded,” id., but declined to analyze airbags or con- tinuous belts because this “would be engagin, in a mythical paper exercise” given the intentions of automobile manufacturers to com- ply primarily with detachable belts. Jd. at IV-56, J. A. 112. 56a restraint standard so as to allow compliance with airbags only. In both the decision and the RIA, airbags are men- tioned only in passing and only in the context of pre- dicting that automobile manufacturers would not install them on a widespread basis. Absolutely no effort was made to compare the costs of airbags against their poten- tial benefits, an omission that is particularly notable be- cause none of the problems that NHTSA identified with passive belts appears to apply to airbags. In proceeding as it did, NHTSA allowed itself to be- come captive to the ways in which it predicted automobile manufacturers would comply with Modified Standard 208. Lip service aside, there is no indication of the agency’s awareness that it could act positively to develop a passive restraint standard that would advance the pur- poses of the Safety Act. Courts frequently observe that regulatory agencies do not function “as an impire blandly calling balls and strikes for adversaries ppear- ing before” them. Scenic Hudson Preservation Confer- ence v. FPC, 354 F.2d 608, 620 (2d Cir. 1965), cert. denied, 384 U.S. 941 (1966). If NHTSA did not be- lieve the standard as written would fulfill the standard’s goals, its foremost obligation was to consider whether an amended standard could. The agency’s reasons for not prohibiting compliance with detachable belts are hollow, and its analysis of requiring exclusive compliance with airbags is nonexistent. NHTSA was not required to fol- low either avenue, of course, but it may not reject these possibilities without reasoned discussion. In stating that “the central issue in this proceeding has become whether [detachable] automatic belts would induce higher belt usage rates than are occurring with manual belts,” 46 Fed. Reg. at 53,425, NHTSA lost sight of its statutory obligation to devise the best passenger safety regulation it could. By artificially narrowing the options avail- able—or ignoring those options completely—the agency acted in a totally arbitrary fashion. 57a 1. Continuous belts As in its assessment of Modified Standard 208 as writ- ten, NHTSA’s discussion of whether to require only con- tinuous passive belts starts by asking the wrong ques- tion. The issue is not whether exclusive reliance on con- tinuous belts would be superior to detachable belts, but whether detachable belts comply with the passive re- straint standard at all. NHTSA boldly declared that Holnee a detachable automatic belt is detached, it be- comes identical to a manual belt. . [I]ts use thereafter requires the same type of affirmative action that is the stumbling block to obtaining high usage levels of manual belts.” 46 Fed. Reg. at 53,421. If so, the obvious ques- tion is whether detachable belts conform to the require- ments of the passive restraint standard, which requires compliance “by means that require no action by vehicle occupants.” 49 C. F. R. § 571.208, S4. 1. 1. 1. Whether a detachable belt is in fact a passive restraint may depend on the usage rates of these belts—a matter that NHTSA has not yet established. But if detachable belts do not comply with the passive restraint regulation, NHTSA should have concentrated its analysis on safety devices that do. Time after time, members of Congress as well as NHTSA have emphasized that a safety restraint requir- ing affirmative action is not a passive restraint. For the last decade, the agency has explained that a passive re- straint requires “no action other than would be required if the protective system were not present in the vehi- cle.” 36 Fed. Reg. at 8296 (May 4, 1971). “The essence of a passive restraint is that it provides at least the minimum level of protection without relying on occupant action to deploy the restraint.” 39 Fed. Reg. at 14,594 (April 25, 1974). “Automatic restraints are systems that require no action, such as buckling a seat belt, by vehicle occupants to be effective.” 46 Fed. Reg. at 12,033 (Feb. 12, 1981). See 123 Conc. Rec. 33,321 (1977) (Senator Griffin) (a passive restraint “is something that 58a does not require any activity on the part of the occupant of the car“); S. REP. No. 481, 95th Cong., Ist Sess. 1 (1977) (“Passive restraints are defined in the rule to mean any front seat occupant restraint which protects the occupant . . without the occupant having to activ- ate it”). It is difficult to imagine an agency decision that could be more irrational than rescinding a regulation be- cause of problems identified in industry actions that do not comply with that regulation. If detachable belts function as poorly as NHTSA says they would, then NHTSA’s discussion of these belts is worse than irrele- vant because detachable belts are not passive restraints at all. Modified Standard 208 is a performance standard, which means that compliance may be in the form of any technology “which meets the standard.” S. Rep. No. 481, supra, at 1; see 123 Conc. REC. 33,318 (1977) (Senator Ford) (“any technology which meets the standard can be utilized”). It is almost embarrassingly obvious that technology that does not meet the performance standard may not be used. NHTSA’s discussion of detachable belts versus continuous belts ignores this elementary point. Its decision not to amend the standard so as to allow only continuous passive belts is therefore fundamentally flawed by NHTSA’s failure to consider that the sta [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385009_0696%3A02. Public record. Not legal advice.