Petitioners Brief — Motor Vehicle Mfrs. Assn. of United States, Inc. v. State Farm Mut. Automobile Ins. Co.

Supreme Court brief1983

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Text

In the Supreme Court of the

OCTOBER TERM, 1982

MOTOR VEHICLE MANUFACTURERS ASSOCIATION OF THE

UNITED STATES, INC., ET AL., PETITIONERS

STATE FARM MUTUAL AUTOMOBILE INSURANCE Co., ET AL.

CONSUMER ALERT AND PACIFIC LEGAL FOUNDATION,

PETITIONERS

STATE FARM MUTUAL AUTOMOBILE INSURANCE Co., ET AL.

UNITED STATES DEPARTMENT OF TRANSPORTATION,

ET AL., PETITIONERS

UV.

STATE FARM MUTUAL AUTOMOBILE INSURANCE Co., ET AL.

ON WRITS OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF FOR THE FEDERAL PARTIES

i»

‘i a¥ A

y, —*

Rex E. LEE

Solicitor General

J. Paul. MCGRATH

Assistant Attorney General

KENNETH S. GELLER

Deputy Solicitor General

EDWIN S. KNEEDLER

Assistant to the Solicitor

General

Rosert E. Kopp

MICHAEL F. HERTZ

Attorneys ©

Department of Justice

Washington, D.C. 20530

(202) 633-2217

QUESTIONS PRESENTED

1. Whether an agency acts arbitrarily and capri-

ciously in rescinding a rule that has not yet taken effect,

when changed circumstances leave substantial uncertainty

that the rule will produce the benefits on which its initial

promuigation was premised, and such uncertainty would

have permitted the agency to decline to issue the rule in

the first instance.

2. Whether the National Highway Traffic Safety Ad-

ministration (NHTSA) acted arbitrarily and capri-

ciously in rescinding the particular requirement in Motor

Vehicle Safety Standard 208 that new vehicies produced

after September 182 be equipped with passive restraints

for occupants, based on NHTSA’s inability te find that

the requirement would satisfy the statutory criteria for

a motor vehicle safety standard, without first considering

whether other versions of a passive restraint standard

would be appropriate.

3. Whether, even if the passive restraint requirement

of Standerd 208 was not validly rescinded, the court of

appeals exceeded the proper limits on judicial review by

ordering that requirement into effect on September 1,

1983, without first affording NHTSA an opportunity to

conduct further proceedings on remand or to exercise the

authority conferred on the Secretary by 15 U.S.C.

1392(c) and (e) to establish a new effective date for the

Standard.

(1)

LIST OF PARTIES BELOW

State Farm Mutual Automobile Insurance Co., Kent

Mason, Patricia Warren, Leorlin Boyd, National Associa-

tion of Independent Insurers, Automobile Owners Action

Council, and Eugene J. Meyung were petitioners in the

proceedings below. The Department of Transportation,

Secretary of Transportation Drew Lewis, the National

Highway Traffic Safety Administration, and NHTSA Ad-

ministrator Raymond A. Peck, Jr. were respondents be-

low. Motor Vehicle Manufacturers Association of the

United States, Inc., American Motors Corporation, Checker

Motors Corporation, Chrysler Motors Corporation, Ford

Motor Company, Genera! Motors Corporation, Volks-

wagen of America, Inc., Automobile Importers of Amer-

ica, Inc., Consumer Alert, Pacific Legal Foundation, and

Albert B. Lewis, Superintendent of Insurance for the

State of New York, were intervenors below.

TABLE OF CONTENTS

— —G—V—V —R—ãũã— PP ——7œ6ũẽũVæ᷑I᷑ 43 ãßnã3ͤðV

Introduction and summary of argument

Argument:

I. The rescission of the passive restraint require-

ment of Modified Standard 208 was not arbi-

trary and CAPTICIOUS ...................--cccceeeeceeeseeeseees

The arbitrary and capricious standard of

judicial review reflects the deference Con-

gress intended to be accorded agency policy

choices within a statutorily prescribed range

and is consistent with the legislative nature

of agency rulemaking ......................................

The court of appeals erred in concluding that

it was arbitrary and capricious for NHTSA

to rescind the passive restraint requirement

on the basis of substantial uncertainty that

it would produce significant safety benefits

C. The decision to rescind the passive restraint

requirement in Modified Standard 208 was

not rendered arbitrary and capricious simply

because the agency did not first consider

whether some other version of a passive re-

straint requirement would satisfy the statu-

——— 3 Sc

The court of appeals erred in coneluding that

“legislative reaction” to the passive restraint

issue, short of the enactment of positive law,

narrowed the scope of NHTSA’s discretion

to rescind the passive restraint requirement

(

„

Argument—Continued : Page

II. Even if NHTSA’s rescission of the passive re-

straint requirement were invalid, the court of

appeals exceeded its authority by setting an

effective date for that requirement pending fur-

e 47

ZE 50

— la

TABLE OF AUTHORITIES

Cases:

American Telephone & Telegraph Co. v. United

F .. 26

American Trucking Associations, Inc. v. Atchison,

FTA & BSS eee 33

Associated Industries of New York State, Ine. v.

United States Department of Labor, 487 F. 2d

JJ ² ˙·wÄA A Oe 17-18

Atchison, T. & S. F. Ry. v. Wichita Board of Trade,

. q eee 34

Automotive Parts & Accessories Association v.

r .... .... 17

B. F. Goodrich Co. v. Department of Transporta-

I i te 17

Baltimore & Ohio R. R. v. Pitcairn Coal Co., 215

r 26

Batterton v. Francis, 482 U.S. 410 26

„ Industry Association v. Boyd, 409 F. 2d

:.. — 88 17

* Transportation, Inc. v. Arkansas-Best

Freight System, Inc., 419 U.S. 21 salah 18, 19, 27

Burlington Northern, Inc. v. United States, No. 81-

1008 (Dec. 18, 1982) . . . 49

Burlington Truck Lines, Inc. v. United States, 371

Z 19

Camp v. Pitts, 411 U.S. 1 17

CBS, Inc. v. FCC, 468 U.S. 37 22

Chrysler Corp. v. Brown, 441 U.S. 2 24, 26

Chrysler Corp. v. Department of Transportation,

- 4. 18. 33. 42

Cases—Continued : Page

Citizens to Preserve Overton Park v. Volpe, 401

. 18, 32, 38-39, 40

Crawford v. Board of Education of Los Angeles,

No. 81-38 (June 30, 198 28, 29, 34

Dayton Board of Education v. Brinkman, 433 US.

406 ....... C 28

Dayton Board of Education v. — 443 US.

Eli Lilly Co. v. Cootle, 444 US. 1096 — 37

FCC v. National Citizens Committee for Broad-

e 17, 18, 27, 33

FCC v. Pottsville Broadcasting Co., 309 U.S. 134. 38

FCC v. Schreiber, 381 U.S. 27ũ 992 38

FCC v. WNCN Listeners Guild, 450 U.S. 582 33

FCC v. WOKO, Inc., 329 U.S. 223 22

Ford Motor Co. v. National Highway Traffic Safety

Administration, 473 F.2d 1211mi111!1 4, 42

FPC v. Transcontinental Gas Pipe Line Corp.,

r 33

FPC v. Transcontinental Gas Pipe Line Corp., 423

ccc 32, 49

H & H Tire Co. v. United States Department of

Transportation, 471 F.2d 350 3 19

Hodel v. Indiana, 452 U.S. 111141 27

Hodel v. Virginia Surface Mining & Reclamation

Association, 452 U.S. 26 ~ 27

Hunter v. Erickson, 393 U.S. 36 28

ICC v. Illinois Central R.R., 215 U.S. 452 ............. 25, 26

ICC v. Union Pacific R.R., 222 U.S. 51 25-26

Industrial Union Department v. American Petro-

leum Institute, 448 U.S. 67 26

Kansas City Southern Ry. v. United ‘States, 231

eee 26

Kollett v. Harris, 619 F. ad 134 n 37

NAACP v. FCC, 682 F.2d 9933 33

National Association of Demolition Contractors v.

r 32

National Broadcasting Co. v. United States, 319

rn nae nee Ae 33

National Tire Dealers and Retreaders Association,

Inc. v. Brinegar, 491 F.2d 11111 17

Cases—Continued : Page

Natural Resources Defense Council, Inc. v. SEC,

] .. 31

New York and Queens Gas Co. v. McCall, 245 U.S

EI A ˙ ] 00 26

PACCAR, Inc. v. National Highway Traffic Safety

Administration, 573 F.2d 632, cert. denied, 439

r 17. 33-34

Pacific Legal Foundation v. Department of Trans-

portation, 593 F.2d 1338, cert. denied, 444 U.S.

P es A Ae. Pe em. 7,17

Pacific States Box & Basket Co. v. White, 296 U.S.

111 ˙ A ˙ 1 SnD 26

Palmer v. Thompson, 408 U.S. 217 29

Permian Basin Area Rate Cases, 390 U.S. 747 33

Pillai v. CAB, 485 F.2d 1s 39, 40

Reitman v. Mulkey, 387 U.S. 369 1 28

Rodway v. United States Department of Agricul-

r ..

Scenic Hudson Preservation Conference v. F PC.

354 F. 2d 608, cert. denied, 384 U.S. 9114 39, 40

Schweiker v. Wilson, 450 U.S. 212 27

Udall v. Tallman, 880 U.S. 46

United States v. Allegheny-Ludlum Steel Corp.,

406 U.S. 742 17

Vermont Yankee ‘Nuclear Power Corp. v. NRDC,

485 U.S. 51 1 21, 24, 38, 39, 40, 49

Wagner Electric Corp. v. Volpe, 466 F.2d 1013 37

WWHT, Inc. v. FCC, 656 F.2d 870 13, 31

Constitution, statutes and regulations:

United States Constitution:

ESTER en re 46

Article I, Section 7 ......... eb eRe OR eae 46

444 0 46

Fifth Amendment (Due Process Clause) 23, 26

Fourteenth Amendment 3 Process

vil

Constitution, statutes and regulations—Continued : Page

Administrative Procedure Act, 5 U.S.C. (& Supp.

V) 551, et seq.:

r 17

D 17, 39

D 38

5 U.S.C. (& Supp. V) 556 n 17

r 17

(CG — 39

4 2, 22, 23, 26, 2a

5 U.S.C. 706 (2)

5 U.S.C. 706 (2) (A) .

17. 20, 28, 25, 27, 2a

5 U.S.C. 706(2)(B)-(D) ......... — N 18

BD TR, FR GID ccccccccceccceccceccecsecsccsccess 25

. Ra 25

National Traffic and Motor Vehicle Safety Act of

1966, 15 U.S.C. (& Supp. V) 1381 et % 2, 16

I 2, 16

J r 2, la

r . 3, 10, 16, 1a

D 17, la

15 U.S.C. 1892 % 3 48

15 U.S.C. 1892 (e) 3, 16, 27, 28, 48, la

15 U.S.C. 1892(f) .. * 16, 1a

15 U.S.C. 1392(f) (1) . 6 32

15 U.S.C. 1392 (f) () —— 3, 16

16 U.S.C. 1892 (f) (4) 3

15 U.S.C. 1892 (i) 3 1 46

D , .... 3

15 U.S.C. 1410b .. 1 42

15 U.S.C. 1410b (b) (i 5, 6, 11

15 U.S.C. 1410b(b)- (dd)) 5

Pub. L. No. 95-335, Section 317, 92 Stat. 450 44

Pub. L. No. 96-131, Section 317, 93 Stat. 1039 44

e ...... 5 34

15 U.S.C. (Supp. V) 119306 34

15 U.S.C. (Supp. V) 2056 (a) 34

.... 39

21 U.S.C. 360d (a) (2) (a 34

———

Vill

Constitution, statutes and regulations—Continued : Page

30 U.S.C. (Supp. V) 81108) ....cccccccccccccccccceccneeens 34

RR .. 39

IIe . 3

49 C. F. R. 571.208 / 84. 1.2.1. . 35

Miscellaneous:

Administrative Procedure in Government Agen-

cies, Report of the Committee on Administrative

Procedure Appointed by the Attorney General,

S. Doc. No. 8, 77th Cong., Ist Sess. (1941) 24, 27

Attorney General's Manual on the Administrative

Procedure Act (19477) 24

Commerce Business Daily (Oct. 25, 1982) ............ 12

112 Cong. Rec. (1966) :

. cc 19

1 —=, . 19

99. ——ꝗ½ é 17

120 Cong. Rec. (1974)

K W AA 42

. . 42

8 42

9% —— 42

5. 42

J TKP 42

Jͤ§ — 5

r...... ole 43

.. 42

XK ccc 42

PP. 80836-308860e ccccccceceeereeereees 42

K- a ů·ů ů 43

1J...— 5

99 KK — ˖—— 42-43

123 Cong. Rec. (1977)

r ene 43

SS Fe me 43

124 Cong. Rec. (1978)

X xe — ——— —ůnͤuA 43, 44

K . 44

p. 17199 D

p. HSOo66 * ———————————— 2 —

125 Cong. Rec. 12285-12287 (1979) 1

126 Cong. Rec. (daily ed. Dec. 5, 1980) 112120

126 Cong. Rec. (daily ed. Oct. 1, 1980) H10194-

126 Cong. Rec. (daily ed. Dec. 4, 1980) H11912-

EE /

126 Cong. Rec. 813506 (daily ed. Sept. 25, 1980)

Exec. Order 12991, 46 Fed. Reg. 13193 (1981)

32 Fed. Reg. (1967):

Reg. 11148 (1969) Lee —

Reg. (1970) :

4 *

—

— —

3 ——

(1973) :

2 8

zee Tk

(1974) : e

——— : Re „öh „ „7

* * a 2 4 > & — — 8 2 0 8 a 88 82 22122 1

Miscellaneous—Continued : Page

OG i —— ͤ 5

42 Fed. Reg. (1977):

p. 5071 6

. — 6

43 Fed. Reg. 52493 (197) 7

46 Fed. Reg. (1981):

11— 7

— 7

H.R. Conf, Rep. No. 1871, 96th Cong. 2d Sess.

(1980) . 45

H.R. Rep. No. 1776, 89th Cong. 2d Sess. (1966) 17, 19

Senate Judiciary Committee Print (June 1945), as

reproduced in Legislative History, Admini. tra-

tive Procedure Act, S. Doc. No. 248, 79th Cong.,

1 ——K . 24

S. Rep. No. 752, 79th Cong., Ist Sess. (1945) 24. 27, 31

S. Rep. No. 1301, 89th Cong., 2d Sess. (1966) 17, 19

Wall Street Journal (Dec. 15, 1982) — 12

Webeter's Third International Dictionary (1976) 23

In the Supreme Court of the United States

OCTOBER TERM, 1982

No. 82-354

MoTor VEHICLE MANUFACTURERS ASSOCIATION OF THE

UNITED STATES, INC., ET AL., PETITIONERS

STATE FARM MUTUAL AUTOMOBILE INSURANCE Co., ET AL.

No. 82-355

CONSUMER ALERT AND PACIFIC LEGAL FOUNDATION,

PETITIONERS

STATE FARM MUTUAL AUTOMOBILE INSURANCE Co., ET AL.

No. 82-398

UNITED STATES DEPARTMENT OF TRANSPORTATION,

ET AL., PETITIONERS

STATE FARM MUTUAL AUTOMOBILE INSURANCE Co., ET AL.

ON WRITS OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF FOR THE FEDERAL PARTIES

(1)

OPINIONS BELOW

The June 1, 1982 opinion of the court of appeals ( Pet.

App. la-76a)' is reported at 680 F.2d 206. The August

4, 1982 supplemental order and memorandum of the

court of appeals (Pet. App. 79a-82a) are not reported.

JURISDICTION

The jurisdiction of the court of appeals rested on 15

U.S.C. 1394(a) (1). The judgment of the court of appeals

(Pet. App. 160a-16la) was entered on June 1, 1982, and

the supplemental order of the court of appeals (Pet.

App. 79a-80a) was entered on August 4, 1982. The peti-

tions for a writ of certiorari in Nos. 82-354 and 82-355

were filed on August 30, 1982. On August 24, 1982, the

Chief Justice extended the time for filing a petition for a

writ of certiorari in No. 82-398 to and including Septem-

ber 8, 1982, and the petition was filed on that date. The

petitions for a writ of certiorari were granted on Novem-

ber 8, 1982. The jurisdiction of this Court is invoked

under 28 U.S.C. 1254(1) and 15 U.S.C. 1394 (a) (4).

STATUTORY PROVISIONS INVOLVED

Section 103 of the National Traffic and Motor Vehicle

Safety Act of 1966, 15 U.S.C. 1392, and Section 10(e) of

the Administrative Procedure Act, 5 U.S.C. 706, are set

forth in pertinent part in the Appendix, infra, la-2a.

STATEMENT

1. In 1966 Congress enacted the National Traffic and

Motor Vehicle Safety Act, 15 U.S.C. (& Supp. V) 1381

et seq. (hereinafter Safety Act”), for the purpose of

“reduc([ing] traffic accidents and deaths and injuries to

persons resulting from traffic accidents.” 15 U.S.C. 1381.

To accomplish this goal, the Act directs the Secretary of

1 “Pet. App.” refers to the appendix to the petition for a writ of

certiorari filed in No. 82-354.

Transportation? to issue appropriate federal motor vehi-

cie safety standards (15 U.S.C. 1392(a)) and prohibits

the manufacture, sale, or delivery into commerce of any

motor vehicle that is not in conformity with such

standards. 15 U.S.C. 1397.

The Act provides that each motor vehicle safety stan-

dard “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 addition, the Secretary must consider

whether any proposed standard “is reasonable, practicable

and appropriate” for the particular type of motor vehicle

and “the extent to which such standards will contribute

to carrying out the purposes of [the Act].” 15 U.S.C.

1392(f) (3) and (4). The Act also grants the Secretary

authority to “amend or revoke any Federal motor vehicle

safety standard” (15 U.S.C. 1392 (e); see also 15 U.S.C.

1407).

2. a. In 1967, the Secretary promulgated Federal

Motor Vehicle Safety Standard 208, which required the

installation of seat belts in all cars. 32 Fed. Reg. 2408,

2415. In 1969, the Department of Transportation an-

nounced that it was considering the initiation of rulemak-

ing proceedings to require installation of inflatable airbags

or other “passive occupant restraint systems“ devices

that do not depend for their effectiveness upon any action

taken by the occupant except that necessary to operate

the vehicle. 34 Fed. Reg. 11148. The Department form-

ally proposed such a standard in 1970. 35 Fed. Reg. 7187.

Between 1970 and 1972, after lengthy administrative

proceedings, the Secretary issued a series of orders cul-

minating in an amendment to Standard 208 requiring full

passive protection for all front seat occupants of vehicles

manufactured after August 15, 1975. The Standard per-

mitted optional means of compliance for vehicles built be-

tween August 1973 and August 15, 1975. Such vehicles

2 The Secretary’s general authority under the Safety Act has

been delegated to the Administrator of the National Highway Traf-

fic Safety Administration (hereinafter “NHTSA”). 49 C. F. R.

1.50(a).

could have (i) full passive protection; (ii) partial passive

protection, with lap belts for front seat occupants; or

(iii) manual lap and shoulder belts coupled with an igni-

tion interlock to prevent the car from starting unless the

occupants’ belts were fastened. See 35 Fed. Reg. 16927

(1970) ; 36 Fed. Reg. 4600 (1971); id. at 19254; id. at

19266; 37 Fed. Reg. 3911 (1972); Pet. App. Ga-Sa.“

On petitions for review, the United States Court of

Appeals for the Sixth Circuit upheld the agency’s decision

to require passive restraints as a “proper exercise of its

administrative discretion.” Chrysler Corp. v. Department

of Transportation, 472 F.2d 659, 674 (6th Cir. 1972).*

The court concluded, however, that the testing procedures

required for passive restraints did not satisfy the Act’s

requirement that a standard be “objective.”

The Sixth Circuit’s decision did not invalidate the man-

ual belt and interlock option.“ However, public irritation

* Full passive protection required the meeting of performance

criteria for frontal, side, and rollover crashes without instrument-

measured injury to a test dummy, while partial passive protection

required the meeting of the same performance criteria for frontal

crashes only. 37 Fed. Reg. 3911 (1972).

*The Sixth Circuit stressed that if it appeared as the time for

implementation approached that further testing or development was

necessary, the agency was free to consider “whether to extend the

time for implementation or to alter, or even to abandon, the project.”

472 F.2d at 673.

5 The interlock option was added after adoption of the version of

the Standard that was under review in Chrysler. However, in a

subsequent decision, the Sixth Circuit held the crash test and in-

jury criteria invalid for the manual belt and interlock option as

well. Ford Motor Co. v. National Highway Traffic Safety Adminis-

tration, 473 F.2d 1241 (1973). As contemplated by the Ford Motor

decision (473 F.2d at 1244), NHTSA then deleted the crash test

and injury criteria from the manual belt and interlock option,

thereby effectively requiring installation of manual belts and igni-

tion interlocks beginning on August 15, 1975. 38 Fed. Reg. 16072

(1973).

In August 1973, the agency corrected the test dummy specifica-

tions “for the limited purpose of evaluating vehicles with passive

restraint systems manufactured under the first and second re-

with interlock systems led Congress in 1974 tu amend the

Safety Act to prohibit any motor vehicle safety standard

from requiring or permitting compliance by means of an

ignition interlock or a continuous buzzer designed to indi-

cate that safety belts are not in use. 15 U.S.C. 1410b(b)

(1); see Pet. App. 8a; 120 Cong. Rec. 27815-27823, 35036

(1974). The 1974 statutory amendment also provided

that any safety standard requiring compliance by means

of an occupant restraint system other than a belt system,

such as inflatable airbags, would be subject to a two

House legislative veto. 15 U.S.C. 1410b(b)-(d).

NHTSA had concluded the previous April that to per-

mit emergency egress after an accident, passive belts—

belts that move into place automatically when the occu-

pant closes the door—should have a release mechanism

in the form of a conventional latch, accompanied by an

ignition interlock and warning buzzer to encourage re-

attachment. 39 Fed. Reg. 14593 (1974). In view of the

1974 statutory amendment, however, NHTSA eliminated

the ignition interlock and buzzer aspect of the emergency

detachment requirement. Pet. App. 9a-10a; 39 Fed. Reg.

38380 (1974). In addition, in response to the Chrysler

decision and the 1974 legislation, NHTSA extended the

optional alternatives for compliance with Standard 208

until August 31, 1976. 40 Fed. Reg. 16217, 33977

(1975).

b. On June 9, 1976, Secretary Coleman initiated a new

rulemaking proceeding on the passive restraint issue. 41

Fed. Reg. 24070 (1976). After hearing testimony and

reviewing written comments, Secretary Coleman extended

the optional alternatives indefinitely, because of his ex-

pectation that there would be widespread public resist-

straint options between August 15, 1973 and August 15, 1975.”

38 Fed. Reg. 20449. The notice stated that the question of restraint

requirements after August 15, 1975 was still open and would be

addressed in future rulemaking (ibid.). Only a very limited number

of vehicles were expected to be fitted with full or partial passive

protection during this interim period (ibid.).

ance to mandatory passive restraints. 42 Fed. Reg. 5071

(1977) ; C. A. App. 2002.“ He instead proposed a demon-

stration project involving up to 500,000 cars installed

with passive restraints, in order to smooth the way for

public acceptance of any mandatory passive restraint

standard at a later date. Pet. App. 10a; C.A. App. 2061,

2073-2074.

e. In July 1977, Secretary Adams decided to dispense

with the demonstration project developed by Secretary

Coleman and instead adopted Modified Standard 208, at

issue here. The Modified Standard mandated the phasing

in of passive restraints beginning with large cars in

model year 1982 and extending to all cars by model year

1984. The two principal systems that would satisfy the

Standard were airbags and passive belts,’ leaving to the

manufacturers the choice of which system to install. 42

Fed. Reg. 34296 (1977).“ On petitions for review, the

C. A. App.” refers to the Joint Appendix in the court of ap-

peals, which contains the periinent materials from the voluminous

administrative record, as designated by the parties. The parties

have lodged with the Clerk of this Court 15 copies of the Joint

Appendix in the court of appeals.

7 Two manufacturers have offered automatic belt systems as

options on their vehicles for some time. In model years 1975-1981,

Volkswagen sold more than 300,000 Rabbits equipped with detach-

able automatic belts having an ignition interlock and a continuous

buzzer to discourage detachment. Pet. App. 18a n.12. (Installation

of these use-compelling features was permissible under 15 U.S.C.

1410b(b)(1) because the devices were not installed as a means of

compliance with Standard 208). Between 1978 and 1980, General

Motors sold approximately 20,000 Chevettes with automatic belts.

For the 1978 and 1979 model years, the belts were coupled with in-

terlock devices similar to those in the Volkswagen Rabbits; for the

1980 model year, the vehicles had a nondetachable continuous belt

system, which permitted the belt to “play out” from a spool to permit

emergency egress. Only 13,000 of 415,000 Chevettes purchased in

model year 1980 were equipped with these belts, even though the

option was made available at no charge to purchasers and dealers

received bonuses for selling them (C.A. App. 403).

8 At the time of Secretary Adams’ decision, the passive seat belt

option continued to include the requirement that the belt be detach-

able to permit emergency release. In November 1978, however,

United States Court of Appeals for the District of Co-

lumbia Circuit sustained the validity of Modified Stan-

dard 208. The court of appeals found Secretary Adams’

decision that airbags would be effective “rational,” recog-

nized that public resistance to passive restraints was a

factor that had to be considered and presented a “matter

of judgment” for the Secretary, and held that the Secre-

tary had not “abused his discretion” in assessing the

tradeoffs between the expected benefits and potential dan-

gers of airbags. Pacific Legal Foundation v. Department

of Transportation, 593 F.2d 1338, 1344, 1346-1347 (D.C.

Cir.) , cert. denied, 444 U.S. 830 (1979).

d. In February 1981, Secretary Lewis proposed a one-

year postponement of the effective date of Modified

Standard 208 to permit further study in light of changed

circumstances since it was promulgated in 1977. 46 Fed.

Reg. 12033; C.A. App. 1622. Two months later, NHTSA

issued a final rule ordering a one-year delay, until Sep-

tember 1982, in the application of the Modified Standard

to large cars. 46 Fed. Reg. 21172; C.A. App. 1272. In

a notice published the same day, the Secretary proposed

and requested comment on four possible revisions of the

Standard: (1) reversal of the phase-in sequence to re-

quire compliance by small cars first; (2) simultaneous

compliance by all cars; (3) rescission of the passive re-

straint requirement; and (4) deletion of a requirement

for passive restraints in the front center seating posi-

tion. 46 Fed. Reg. 21205; Pet. App. 147a-159a; C.A.

App. 12-15.

After receiving written comments and holding public

hearings, NHTSA issued a final rule on October 23, 1981

amending Modified Standard 208 to delete the require-

ment that passive restraints be installed, while permitting

their installation as an optional means of compliance (see

NHTSA amended the Standard to afford manufacturers for the

first time the option of making automatic belts either detachable or

nondetachable. 43 Fed. Reg. 52493; C.A. App. 1705. As explained

in footnote 7, supra, General Motors made the nondetachable, or

“continuous,” belt option available in the 1980 model year Chevettes,

with only limited success.

note 29, infra). NHTSA explained that it had a duty

under the Act “to review the automatic restraint require-

ments in light of changing events and to ensure that the

requirements continue to meet the criteria which each

Federal Motor Vehicle Safety Standard must satisfy”

(Pet. App. 93a).° On the basis of its thorough review,

NHTSA determined that it was “incapable of finding

now, as it was able to do in 1977, that the automatic

restraint requirements would meet all of the applicable

criteria in the Vehicle Safety Act” ( ibid.) :

i. NHTSA noted that its determination in 1977 that

the Standard would produce significant safety benefits

depended on several “critical assumptions” (Pet. App.

94a-95a), the validity of which had been “substantially if

not wholly undermined by drastic changes in the types

of automatic restraints that would have been installed

under the automatic restraint requirements” (id. at 96a).

First, although the agency had assumed in 1977 that air-

bags would be installed in 60% of all new cars and auto-

matic seat belts in 40%, it concluded that because of the

change to small cars, manufacturers planned to install

automatic seat belts in approximately 99% of the new

cars. “Thus, the assumed life-saving potential of air bags

would not have been realized” (ibid.).

Second, the agency determined that the automatic belts

installed in the “overwhelming majority of new cars”

would have been detachable. This design choice stemmed

in part from the manufacturers’ desire not to impede

emergency exit and in part from their concern that a

significant number of people would resist belts not hav-

ing this feature because of a fear of being trapped ( Pet.

App. 97a, 99a, lla; see C.A. App. 305, 363, 431, 435,

595, 653, 1220, 2549). NHTSA concluded that detachable

belts “would be like today’s manual lap and shoulder belts

in that they can be easily detached and left that way

permanently” and that their use “thereafter requires the

o NHTSA also stated that the review was undertaken to ensure

that the Standard met the requirements of cost-effectiveness pro-

vided by Exec. Order No. 12991, 46 Fed. Reg. 13193 (1981).

same type of affirmative action that is the stumbling

block to obtaining high usage levels of manual belts”

(Pet. App. 97a-98a; see C.A. App. 406, 431, 806, 1253).

Third, NHTSA found that although surveys of the use

of automatic belts in Volkswagen Rabbits and Chevrolet

Chevettes (see note 7, supra), conducted since Modified

Standard 208 was promulgated in 1977, indicated usage

rates as high as 70% or 80%, these studies suffered

from a number of limitations that rendered them unreli-

able as bases for predicting the usage of the detachable

belts that would be installed to comply with Modified

Standard 208 if it went into effect: (1) the belts sur-

veyed either had an ignition interlock or were continuous

nondetachable belts and thus were dissimilar to detach-

able belts; (2) the cars that were the subjects of the

studies were not typical of the Nation’s automobile fleet

generally, because a combination of owner demographics

and driver risk perception ordinarily results in higher

usage rates in smaller cars; (3) most purchasers of the

cars surveyed voluntarily invested in the passive re-

straints; and (4) crash data for Rabbits revealed a sig-

nificantly lower actual usage rate than that indicated by

the surveys (Pet. App. 97a-104a; see C.A. App. 405-406,

555, 1220).

Recognizing that extrapolation from these “extremely

sparse factual data * necessarily involve[s] exer-

cises of discretion and informed judgment” (Pet. App.

103a), the agency concluded that the manufacturers’

plans to satisfy Modified Standard 208 by installing de-

tachable belts that so closely resembled the manual belts

then in use had left it without a basis for reliably pre-

dicting the likelihood that the Standard would lead to any

significant increased usage of restraints at all (id. at

99a, 104a). NHTSA observed in this regard that none of

the participants in the rulemaking proceedings had pre-

sented any new factual data to reduce the “substantial

uncertainty” confronting the agency (id. at 10la). In

view of this uncertainty regarding the incremental safety

benefits of detachable automatic belts, NHTSA could not

find that the automatic restraint requirement of Modified

Standard 208 would meet the need for safety (id. at

104a), one of the criteria a safety standard must satisfy.

See 15 U.S.C. 1392(a).

ii. NHTSA also concluded that in view of the possibly

minimal safety benefits and the substantial cost of im-

plementation, the automatic restraint requirement did

not satisfy the statutory mandates that a standard be

“reasonable” and “practicable” (Pet. App. 88a, 105a).

The agency found that imposition of the passive restraint

requirement would produce an annual nationwide price

effect of approximately $1 billion, without any assurance

that consumers would receive offsetting discounts on in-

surance premiums in the foreseeable future (id. at 105a,

106a, 117a; see C.A. App. 190, 1241-1242, 1349, 2550-

2552).

The agency [did] not believe that it would be reason-

able to require car manufacturers or consumers to bear

such substantial costs without more adequate assurance

that they will produce benefits” (Pet. App. 106a). Those

costs were “particularly unreasonable,’ NHTSA ex-

plained, given the likelihood that other alternatives, such

as its planned educational campaign to increase usage of

manual belts, could accomplish the goal of increased

usage at “greatly reduced costs” (id. at 107a; see id. at

111a-112a). An educational effort, NHTSA reasoned,

has the advantage of reaching not only those purchasers

of new cars who are likely to utilize passive restraints,

but also persons driving in cars already on the road (id.

at 111a-112a).“

% In addition, NHTSA estimated that Modified Standard 208

would entail additional fuel costs of up to $150 million annually

(Pet. App. 106a, 117a; C.A. App. 208).

11 A related factor was equity in the distribution of costs: “The

automatic restraint requirements of the standard would have re-

quired the current regular user of manual belts not only to pay

himself for a system that affords him no additional safety protec-

tion, bu. in part to subsidize the current nonuser of belts who may

iii. In addition, NHTSA concluded that the automatic

restraint requirement might have an adverse effect on

the public’s attitude toward safety—an element of the

statutory mandates that a standard be “practicable”

(Pet. App. 93a) and “meet the need for motor vehicle

safety” (id. at 1l4a). Given the obtrusiveness, relative

expense, and potentially limited benefits of detachable

belts, NHTSA feared that many consumers would regard

the automatic restraint requirement as an expensive

example of ineffective regulation (id. at 108a). These

factors, NHTSA reasoned, could lead to a “poisoning of

popular sentiment toward efforts to improve occupant

restraint systems in the future” (ibid., quoting Secretary

Coleman’s 1976 Decision, C.A. App. 2073) and adversely

affect public attitudes toward safety measures in general

(ibid.). Moreover, NHTSA observed that some dissatis-

fied consumers might even “cut the automatic belts out

of their cars, thus depriving subsequent owners of the

cars of the protection of any occupant restraint system.”

In NHTSA’s view, these were “serious concerns for an

agency charged by statute with taking steps appropriate

for addressing safety problems that arise not only in

the short term but also the long term” (id. at 108a-

109a). See also id. at 114a-115a.

iv. The agency also rejected the option of requiring

that all automatic belts have some use-compelling fea-

ture—e.g., an ignition interlock to compel refastening of

a detachable belt or installation of nondetachable passive

belts. NHTSA noted that it lacked statutory authority to

require ignition interlocks (see 15 U.S.C. 1410b(b) (1))

and that the history of congressional reaction to inter-

locks suggested “that Congress would look with some dis-

favor upon any similar attempt to impose a use-

compelling feature on a belt system” (Pet. App. 109a-

110a). NHTSA further explained that a use-compelling

feature could actually be counterproductive because of a

“widespread, latent and irrational fear in many members

or may not be induced by the automatic restraints to commence

regular restraint usage” (Pet. App. 109a).

of the public that they could be trapped by the seat belt

after a crash” (id. at 110a), a fear that might con-

tribute to the decision of many persons not to wear a

seat belt at all (ibid.). In the agency’s view, it would be

“highly inappropriste” to impose a technology that might

aggravate that fear without first attempting a thorough

education of the public (ibid.). In addition, NHTSA

was “unable to find the cause of safety served by impos-

ing any requirement which would further complicate the

extrication of any occupant from his or her car, as some

use-compelling features would” (ibid.).

v. NHTSA stressed that its rescission of the passive

restraint requirement at this time did not foreclose the

option of reopening rulemaking in the future, depending

upon further experience in the usage of manual and auto-

matic belts and the degree of increased public under-

standing and acceptance of the neea for use-inducing or

automatic protection alternatives (Pet. App. 115a-116a).

NHTSA also noted its regret that Secretary Coleman’s

proposed demonstration project and accompanying edu-

cational campaign had never been placed into effect, so

that the experience of those efforts would now be avail-

able (id. at 110a-llla). Accordingly, the agency ex-

pressed its intention to undertake an educational cam-

paign in cooperation with the States and private sector

and to initiate efforts with automobile manufacturers to

ensure that potential developments in automatic crash

protection technology would not be lost (id. at 107a,

111a-112a, 115a-116a, 117a-118a)."

3. On petitions for review, e United States Court of

Appeals for the District of Columbia Circuit held that

NHTSA’s rescission of the automatic restraint require-

120n October 25, 1982, NHTSA published a request for pro-

posals for an airbag demonstration project to design, fabricate, and

evaluate a kit for retrofitting the automobiles of one or more state

police fleets with airbags. Commerce Business Daily, Oct. 25, 1982,

at 1, col. 2. In addition, NHTSA has entered into an agreement

with the General Services Administration for the purchase by the

federal government of 5,000 1985 model year vehicles equipped with

airbags. Wall Street Journal, Dec. 15, 1982, at 17.

ment was arbitrary and capricious. The court of appeals

remarked that “rescission more resembles agency refusal

to act than an agency decision to act” and that 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’” (Pet. App. 25a, quoting WWHT, Inc. v. FCC,

656 F.2d 807, 818-819 (D.C. Cir. 1981)). In this case,

however, the court concluded that NHTSA’s discretion

to rescind the passive restraint requirement had been

restricted by congressional “reaction” to the passive re-

straint issue, even though the court acknowledged that

in none of the instances upon which it relied did that

reaction take the form of “positive law” (Pet. App. 46a).

The court found that NHTSA’s action within this nar-

rowed ambit of discretion was arbitrary and capricious

for two general reasons:

a. The court found insufficient as a basis for rescission

NHTSA’s conclusion that it could not reliably predict an

increase in usage under the Standard as written (Pet.

App. 50a-54a). The Court expressly accepted as reason-

able the first two of the three findings upon which

NHTSA relied in reaching this conclusion: that most

manufacturers planned to install detachable belts and

that a detachable belt, once detached, is “functionally

equivalent” to a manual belt (id. at 50a-5la). With

respect to the third of NHTSA’s findings, the court simi-

larly conceded that there may well be “substantial un-

certainty” about the increase in seatbelt usage rates that

can be predicted if detachable belts are widely used

(id. at 51a). But the court did not find this uncertainty

to be a sufficient basis for NHTSA’s action. The appro-

priate question in the court’s view was not whether there

was evidence showing that usage rates actually would

increase by an amount necessary to justify the Standard,

but rather whether NHTSA could point to evidence

affirmatively showing that usage rates would not increase

by such an amount (ibid.).

The court found that the evidence in the record did

not sustain what it held to be NHTSA’s burden on this

issue. Moreover, the court reasoned that if experience

with passive belts now in use could not be the basis for

predicting usage rates under the Standard, “then only

a well justified refusal to seek more evidence could render

rescission non-arbitrary” (Pet. App. 52a-53a).

b. A majority of the panel also concluded that the

rescission of the passive restraint requirement was arbi-

trary and capricious because NHTSA did not sufficiently

consider certain alternatives to rescission (Pet. 54a-

68a). The court stressed that NHTSA was “impres-

sively thorough and careful” in reviewing the three al-

ternatives to rescission that it had set forth in its April

1981 Notice of Proposed Rulemaking: reversing the

sequence of compliance, ordering simultaneous compli-

ance, and exempting the front center seating position

(Pet. App. 55a). But the court believed that other alter-

natives should have been considered as well.

The court first faulted NHTSA’s consideration of the

possibility of requiring manufacturers to instal] non-

detachable rather than detachable, automatic belts. The

court questioned whether detachable belts are “passive”

restraints if, upon detachment, they resemble manual

belts (Pet. App. 57a). In addition, the court found in-

sufficient the reasons given by the agency for declining

to permit only nondetachable continuous belts—the con-

gressional reaction in 1974 to ignition interlocks, another

use-compelling feature; the fear of many members of the

public of being trapped; and NHTSA’s determination

that the cause of safety would not be advanced by a de-

vice that might make it more difficult to extricate the

occupant after an accident (id. at 60a-62a).

The court also held that NHTSA should have con-

sidered whether to require the installation of airbags

(Pet. App. 62a-65a). The court acknowledged, however,

18 Judge Edwards did not accept the majority’s discussion of

possible alternative courses of action as a basis for decision in this

case (Pet. App. 75a).

that the cost of airbags ranged from $200 to $1000 per

unit, depending upon economies of scale, and that

NHTSA had considered these costs in its regulatory im-

pact analysis (id. at 65a-66a).

e. Although the court of appeals invalidated NHTSA’s

rescission of the automatic restraint provisions of Modi-

fied Standard 208, the court expressly declined the sug-

gestion of respondents State Farm and NAll that the

standard take effect by September 1982 or September

1983 (Pet. App. 72a). The court noted that manufac-

turers needed sufficient lead time to implement the pas-

sive restraint requirement and that its decision did not

foreclose NHTSA from rescinding, suspending, or delay-

ing the requirement in the future (id. at 53a-54a, 72a-

74a). The court allowed NHTSA 30 days “in which to

submit a schedule for resolving the questions raised in

[the] opinion, leading either to the rescission or suspen-

sion of the standard or to a judicially approved schedule

for the effective implementation of * * * [Modified

Standard 208] or an amended standard” (id. at 74a; see

also id. at 72a).

On July 1, 1982, NHTSA filed with the court of appeals

a suggested Notice of Proposed Supplemental Rulemak-

ing setting forth a schedule for seeking comments from

interested parties on questions raised by the court’s opin-

ion and for issuing a supplemental decision on those ques-

tions (Pet. App. 132a-146a). In a memorandum issued

on August 4, 1982, the court stated that NHTSA’s pro-

posal was “not inconsistent with the Court’s order” (id.

at 82a). Nonetheless, the court, sua sponte, issued an

order on August 4, 1982, staying the compliance date for

the passive restraint requirement only until September 1,

1983. The order permitted NHTSA until October 1, 1982

to advise the court whether that compliance date was

achievable or whether a longer period was required, “set-

ting forth adequate reasons therefor” (id. at 79a-80a).

NHTSA informed the court on October 1, 1982 that,

based on representations by manufacturers, it did not ap-

pear that practicable compliance could be achieved before

September 1985 (82-354 Pet. Br. App. 44). The court of

appeals has not acted in response to NHTSA’s filing.

However, on November 18, 1982, after this Court granted

the petitions for a writ of certiorari, the court of appeals

entered an order recalling its mandate (J.A. 16-17).

INTRODUCTION AND SUMMARY OF ARGUMENT

The National Traffic and Motor Vehicle Safety Act of

1966, 15 U.S.C. (& Supp. V) 1381 et seg., empowers the

Secretary of Transportation to establish motor vehicle

safety standards to accomplish the Act’s purposes of

reducing traffic accidents and deaths and injuries result-

ing from such accidents. 15 U.S.C. 1381 and 1392(a).

Congress provided, however, that any such standard must

satisfy certain criteria: it must be “appropriate,” “prac-

ticable,” and “stated in objective terms” and “meet the

need for motor vehicle safety,” 15 U.S.C. 1392(a), and it

must be “reasonable, practicable and appropriate” for

each type of vehicle to which it applies. 15 U.S.C.

1392(f) (3).

The Act does not contemplate that a standard once

found to satisfy the statutory criteria must remain in

effect permanently. To the contrary, 15 U.S.C. 1392(e)

expressly provides that the Secretary “may by order

amend or revoke any Federal motor vehicle safety stan-

dard established under this section.” It is evident from

the structure and purposes of the Act as a whole that the

same statutory criteria that govern the promulgation of a

standard in the first instance must inform the Secretary’s

determination whether the standard should remain in

effect or should instead be amended or revoked. 15 U.S.C.

1392(a) and (f). Neither the court of appeals nor re-

spondents have suggested otherwise. NHTSA adhered to

these principles in rescinding the passive restraint re-

quirement of Modified Standard 208, concluding that it

could no longer find that the Standard would satisfy the

requirements that a standard “meet the need for motor

vehicle safety” and be “reasonable” and “practicable.”

Under 15 U.S.C. 1392 (b), the provisions of the Admin-

istrative Procedure Act apply to judicial review of all

orders issued by the Secretary establishing, amending, or

revoking a safety standard. Because the Safety Act does

not require that motor vehicle safety standards or rules

amending or revoking such standards “be made on the

record after opportunity for an agency hearing” (5

U.S.C. 553(c)), NHTSA is free to follow the notice ard

comment procedures for informal rulemaking under the

APA, 5 U.S.C. 553, as it did in this case, rather than the

formal rulemaking procedures prescribed by 5 U.S.C. (&

Supp. V) 556 and 5 U.S.C. 557.“ Accordingly, as the

court of appeals held (Pet. App. 25a-26a), and as

respondents concede (State Farm Br. in Opp. 9-10; NAII

Br. in Opp. 5-6), an order establishing, amending, or

revoking a motor vehicle safety standard is subject to

judicial review under the APA only to the extent of

ensuring that NHTSA’s action was not “arbitrary, capri-

cious, an abuse of discretion, or otherwise not in accord-

ance with law.” 5 U.S.C. 706(2)(A). See FCC v.

National Citizens Committee for Broadcasting, 436 U.S.

775, 802-803 (1978); Camp v. Pitts, 411 U.S. 138, 140-

141 (1973).

H.R. Rep. No. 1776, 89th Cong., 2d Sess. 16 (1966); S. Rep.

No. 1301, 89th Cong., 2d Sess. 7 (1966): 112 Cong. Rec. 21487

(1966) (remarks of Sen. Magnuson); Automotive Parts & Acces-

sories Association v. Boyd, 407 F.2d 330, 332-337 (D.C. Cir. 1968).

Compare United States v. Allegheny-Ludlum Steel Corp., 406 U.S.

742, 757 (1972).

13 See Pacific Legal Foundation v. Department of Transportation,

supra, 593 F.2d at 1342; National Tire Dealers & Retreaders Asso-

ciation, Inc. v. Brinegar, 491 F.2d 31, 35 (D.C. Cir. 1974); Auto-

motive Parts & Accessories Association v. Boyd, 407 F.2d 330, 337

(D.C. Cir. 1968) ; B. F. Goodrich Co. v. Department of Transporta-

tion, 541 F.2d 1178, 1181-1182 (6th Cir. 1976); Boating Industry

Association v. Boyd, 409 F.2d 408, 411 (7th Cir. 1969) ; cf. PACCAR,

Inc. v. National Highway Traffic Safety Administration, 573 F.2d

632, 636 (9th Cir.), cert. denied, 439 U.S. 862 (1978); Associated

This Court has stressed that the arbitrary and capri-

cious standard of judicial review is “a narrow one” and

that t Ihe court is not empowered to substitute its judg-

ment for that of the agency.” Citizens to Preserve Over-

ton Park v. Volpe, 401 U.S. 402, 416 (1971). Agency

rules subject to review under this standard may be set

aside only “if they are not rational and based on con-

sideration of the relevant factors.” FCC v. National Citi-

zens Committee for Broadcasting, supra, 436 U.S. at 803;

see also id. at 805, 814; Citizens to Preserve Overton

Park v. Volpe, supra, 401 U.S. at 413-416; Bowman

Transportation, Inc. v. Arkansas-Best Freight System,

Inc., 419 U.S. 281, 285 (1974). NHTSA’s rescission of

the passive restraint requirement plainly was not arbi-

trary or capricious under these principles.

The agency’s explanation of its reasons for rescission

contained an extensive “consideration of the relevant fac-

tors” Congress specified in the Act itself as prerequisites

for the imposition of a motor vehicle safety standard.

f . —

The ageney's consideration of these factors also plainly

was rational.“ The court of appeals itself sustained as

reasonable the first two of the three factual determina-

tions that led NHTSA to conclude that it could no longer

find that the passive restraint requirement would meet

the need for motor vehicle safety: (i) that most automo-

bile manufacturers intended to comply with the Standard

by installing detachable passive belts, and (ii) that such

a belt, once detached, becomes identical to a manual belt

(Pet. App. 50a, 96a, 98a). With respect to NHTSA’s

third finding, the court of appeals similarly conceded that

“(t]here may well be substantial uncertainty’ about the

Industries of New York State, Inc. v. Uniied States Department of

Labor, 487 F.2d 342, 348 (2d Cir. 1973); but see Chrysler Corp. v.

Department of Transportation, supra, 472 F.2d at 667-670. Under 5

U.S.C, 706(2)(B)-(D), rules promulgated following informal rule-

making procedures also may be set aside if they are contrary to the

Constitution, in excess of statutory authority or short of statutory

right, or without observance of procedure required by law. These

bases of judicial review under the APA are not at issue here.

seatbelt usage rates that can be predicted if detachable

belts are widely used” (id. at 51a). The court of appeals

also did not question NHTSA’s estimate that the costs of

implementing Modified Standard 208 would exceed $1 bil-

lion annually (id. at 16a-17a, 105a) or NHTSA’s inter-

pretation of the Act as requiring that any potential safety

benefit be weighed against these costs in determining

whether the Standard satisfies the statutory requirements

that a safety standard be “reasonable” and “practicable”

(id. at 16a-17a, 88a, 93, 105a)."*

Given the acknowledged uncertainty regarding whether

any significant increase in usage rates of seatbelts could

be expected under Modified Standard 208, it manifestly

was reasonable for NHTSA to withdraw the passive

restraint requirement before it took effect, rather than to

impose its substantial costs and burdens on the motoring

public and automobile manufacturers. There was thus a

rational connection between the facts found and the

choice made’” (Bowman Transportation, Inc. v. Ar-

kansas-Best Freight System, Inc., supra, 419 U.S. at 285,

quoting Burlington Truck Lines, Inc. v. United States,

371 U.S. 156, 168 (1962)). Because the court of appeals

sustained NHTSA’s findings in the relevant respects, it

should have sustained NHTSA’s rescission of Modified

Standard 208 as well.“

16 See also S. Rep. No. 1301, 89th Cong., 2d Sess. 6 (1966); H.R.

Rep. No. 1776, 89th Cong., 2d Sess. 16 (1966); 112 Cong. Rec.

14245 (1966) (remarks of Sen. Lausche) ; id. at 19648 (remarks of

Reps. Dingell & Staggers); H & H Tire Co. v. United States De-

partment of Transportation, 471 F.2d 350, 353-354 (7th Cir. 1972);

id. at 356-357 (Stevens, J., concurring).

17 Because the court of appeals sustained NHTSA's findings in

the relevant respects and because its holding rested on other

grounds, we will not set forth here an extensive discussion of

NHTSA's consideration of the statutory criteria and the rationality

of its actions in light of those criteria. For present purposes, the

validity of NHTSA’s action has been sufficiently summarized here

and in the Statement. See pages 7-12, supra.

The court of appeals nevertheless held that NHTSA’s

rescission of the passive restraint requirement was arbi-

trary and capricious. In doing so, it not only misappre-

hended the role of a reviewing court under the arbitrary

and capricious standard; it fashioned in the process no

less than three unprecedented and erroneous principles of

administrative law.

A. As an initial matter, the court of appeals miscon-

ceived the nature of the arbitrary and capricious standard

of judicial review. That standard was intended to permit

a reviewing court to set aside administrative action only

where the agency has acted irrationally or exercised its

power in such an unreasonable manner that it must be

deemed to be unauthorized and therefore “not in accord-

ance with law.” 5 U.S.C. 706(2) (A).

B. Ignoring these limitations, the court of appeals held

that in order for an agency to rescind a rule—even one

that has yet to take effect—it is not sufficient that the

agency has developed substantial uncertainty that the

rule will in fact produce the benefits on which its initial

promulgation was premised. The agency instead must af-

firmatively establish to the satisfaction of the reviewing

court that the rule in fact will not produce such benefits

before it may be revoked. In other words, evidentiary

doubts that would have allowed, indeed perhaps required,

an agency not to issue a regulation in the first instance

are insufficient to permit that agency, on further reflec-

tion, te withdraw the regulation.

This unprecedented result disregards the explicit statu-

tory limitations on judicial review contained in the Ad-

ministrative Procedure Act. It cannot be arbitrary or

capricious for an agency to conclude that there should be

some firm indication that a regulation will serve a useful

purpose before imposing its costs and burdens, especially

those of the magnitude involved here, upon the public.

The court of appeals’ ruling also is inconsistent with the

decisions of this Court recognizing that administrative

agencies must retain maximum flexibility to adapt their

regulatory policies to changing circumstances.

C. It was equally erroneous for the court of appeals to

hold NHTSA’s action arbitrary and capricious because

the agency did not, in the court’s view, sufficiently con-

sider certain alternative courses of action. NHTSA of

course did thoroughly consider the alternatives set forth

in the Notice of Proposed Rulemaking, as well as the pos-

sibility of requiring that all passive belts be nondetach-

able. But in addition, nothing in the Safety Act or the

APA prohibited NHTSA from rescinding the particular

passive restraint standard that previously had been pro-

mulgated before considering whether some other passive

restraint requirement would satisfy the statutory criteria.

Rescission was especially prudent in view of the acknowl-

edged defects of Modified Standard 208 as it then read

and its imminent effective date of September 1982, which

would have required expensive compliance efforts by

automobile manufacturers. The court of appeals’ insist-

ence that the alternatives it cited be considered in the

rescission proceedings themselves, rather than at a later

date, is inconsistent with the teaching of Vermont Yankee

Nuclear Power Corp. v. NRDC, 435 U.S. 519 (1978), that

courts may not impose additional procedural requirements

on administrative agencies.

D. The court of appeals also erred in its reliance upon

what it termed the “legislative reaction” to the passive

restraint issue. The court acknowledged that in none of

the instances upon which it relied had Congress enacted

positive law requiring NHTSA to promulgate a passive

restraint standard, and that Congress had merely failed

to prohibit NHTSA from doing so and had failed to exer-

cise a legislative veto of Modified Standard 208 when it

was promulgated in 1977. Such congressional inaction,

and the debates surrounding it, did not abrogate

NHTSA’s preexisting statutory authority and responsibil-

ity to determine whether Modified Standard 208 satisfied

the statutory requirements. In any event, the legislative

activities relating to NHTSA’s consideration of passive

restraints, far from indicating a firm endorsement,

demonstrate an abiding congressional concern and indeed

ambivalence regarding mandatory passive restraints.

II.

Even if the court of appeals were correct that

NHTSA’s rescission of the passive restraint requirement

was arbitrary and capricious, the court should have re-

manded to the agency to afford it the opportunity to

remedy the defects identified by the court and to permit

the agency to consider an appropriate effective date.

ARGUMENT

I. THE RESCISSION OF THE PASSIVE RESTRAINT

REQUIREMENT OF MODIFIED STANDARD 208

WAS NOT ARBITRARY AND CAPRICIOUS

A. The Arbitrary And Capricious Standard Of Judi-

cial Review Reflects The Deference Congress In-

tended To Be Accorded Agency Policy Choices

Within A Statutorily Prescribed Range And Is

Consistent With The Legislative Nature Of Agency

Rulemaking

1. The text and origins of Section 10e) of the Admin-

istrative Procedure Act, 5 U.S.C. 706, make clear that the

arbitrary and capricious standard of judicial review was

not intended to permit a court to interfere with an

agency’s expert judgment as to how statutory policy

should be implemented within the limits established by

Congress. [TIhe fact that [a court] might not have

made the same determination on the same facts does not

warrant a substitution of judicial for administrative dis-

cretion since Congress has confided the problem to the

latter.“ CBS, Inc. v. FCC, 453 U.S. 367, 394 (1981), quot-

ing FCC v. WOKO, Inc., 329 U.S. 223, 229 (1946). The

arbitrary and capricious standard of review represents,

rather, an outer limit on the exercise of administrative

discretion. It was intended for those rare situations in

which the action in question may literally fall within the

scope of the agency’s power, but in which the power was

exercised in a manner that so far departs from what

must reasonably have been in the contemplation of Con-

gress (or from the restraints on arbitrary governmental

action imposed by the Due Process Clause of the Fifth

Amendment) as to be, in substance if not in form, beyond

the agency’s authority.

This understanding of the applicable scope of judicial

review is reflected in the language of 5 U.S.C. 706(2)

(A), which provides that a reviewing court may set

aside agency action found to be “arbitrary, capricious, an

abuse of discretion, or otherwise not in accordance with

law.” The words “arbitrary,” “capricious” and “abuse of

discretion” are recited with such regularity in the domain

of administrative law that their very familiarity may

have come to mask their intended meaning. Given their

ordinary meaning, however, these terms in fact connote a

willful irrationality, randomness, whim, or impropriety

in the exercise of congressionally delegated power.!“ Simi-

larly, the use of the word “otherwise” in introducing the

concluding phrase in 5 U.S.C. 706(2)(A) underscores

that a court is authorized by that provision to set aside

agency action challenged as arbi‘®ary, capricious, or an

abuse of discretion only in those situations in which it is

of a type that must be deemed “not in accordance with

law” and therefore not authorized by Congress. The re-

viewing court’s own view that the agency action was

unwise or erroneous is insufficient.

The legislative history of the APA confirms this inter-

pretation of 5 U.S.C. 706 (2) (A). Section 10(e) of the

APA, 5 U.S.C. 706, was not intended to establish broad

new standards for judicial review of administrative

is See Webster’s Third International Dictionary (1976), at 8

(“abuse”), 110 (“arbitrary”), and 333 (“capricious”).

action. Rather, the APA largely restated prevailing prin-

ciples of judicial review.“ As the Senate Judiciary Com-

mittee explained:

It is not possible to specify all instances in which

judicial review may operate. Subsection (e), there-

fore, seeks merely to restate the several categories of

questions of law subject to judicial review. Each

category has been recognized (see Final Report, At-

torney General’s Committee, pp. 87 et seg. I). The

several categories, constantly repeated by courts in

the course of judicial decisions or opinions, were first

established by the Supreme Court as the minimum

requisite under the Constitution (Interstate Com-

merce Commission v. Illinois Cent. R. Co., 215 U.S.

452, 470 (1910); Interstate Commerce Commission

v. Union Pac. R. Co., 222 U.S. 541, 547 (1912 and

have also been carried into State practice, in part at

least, as the result of the identical due process

clauses of the Fourteenth Amendment, applicable to

the States, and the Fifth Amendment, applicable to

the Federal Government (New York & Queens Gas

Co. v. McCall, 245 U.S. 345, 348 (1917)). The fifth

category necessarily limits the substantial evidence

rule to cases in which Congress has required an ad-

ministrative hearing in which the administratve rec-

ord may be made.

Senate Judiciary Committee Print (June 1945), as repro-

duced in Legislative History, Adminstratve Procedure

Act, S. Doc. No. 248, 79th Cong., 2d Sess. 39 (1946).

19 See S. Rep. No. 752, 79th Cong., Ist Sess. 38, 43-44 (1945);

Attorney General’s Manual on the Administrative Procedure Act

93, 108 (1947). This Court has given weight to the Attorney Gen-

eral’s contemporaneous interpretation of the APA, since the Justice

Department was heavily involved in the legislative process that

resulted in its enactment. See, e.g., Chrysler Corp. v. Brown, 441

U.S. 281, 302 n.31 (1979); Vermont Yankee Nuclear Power Corp.

v. NRDC, supra, 435 U.S. at 546.

20 Administrative Procedure in Government Agencies, Report of

the Committee on Administrative Procedure Appointed by the At-

torney General, S. Doc. No. 8, 77th Cong., Ist Sess. (1941) (here-

inafter “Final Report’).

This description of the judicial review provisions of the

APA is especially instructive here for several reasons.

First, in JCC v. Illinois Central R.R., 215 U.S. 452, 470

(1910), cited by the Committee, the Court stated:

Beyond controversy, in determining whether an

order of the commission shall be suspended or set

aside, we must consider, a, all relevant questions of

constitutional power or right; b, all pertinent ques-

tions as to whether the administrative order is

within the scope of the delegated authority under

which it purports to have been made; and, c, a prop-

osition which we state independently, although in its

essence it may be contained in the previous one, viz.,

whether, even although the order be in form within

the delegated power, nevertheless it must be treated

as not embraced therein, because the exertion of au-

thority which is questioned has been manifested in

such an unreasonable manner as to cause it, in truth,

to be within the elementary rule that the substance,

and not the shadow, determines the validity of the

exercise of the power.

These three bases of judicial review find direct analogs in

the first three subsections of 5 U.S.C. 706(2).

The first and second factors described by the Court in

Illinois Central R.R. are reflected in 5 U.S.C. 706(2) (B)

and (C), which authorize a reviewing court to set aside

agency action found to be “contrary to constitutional

right, power, privilege, or immunity” or “in excess of

statutory jurisdiction, authority, or limitations, or short

of statutory right.” The third basis for setting aside

agency action identified by the Court is, in turn, reflected

in the arbitrary and capricious standard of review in 5

U.S.C. 706(2)(A). This direct parallel thus confirms

that the arbitrary and capricious standard was intended

to permit a reviewing court to set aside agency action

only where power is exercised in such an unreasonable

manner as to be, in effect, the equivalent of action that is

outside of the scope of the authority delegated to the

agency. The formulations employed by the Court in JCC

v. Union Pacific R.R., 222 U.S. 541, 547 (1912), and New

York & Queens Gas Co. v. McCall, 245 U.S. 345, 348

(1917), also cited by the Senate Committee, are similar.“

It also is instructive that in its explanation of Section

10(e) of the APA, the Senate Judiciary Committee com-

pared the standards of review under the APA to the

minimum standards thought to be necessary to satisfy

the requirements of the Due Process Clauses of the Fifth

and Fourteenth Amendments to the Constitution. This

suggests that where the validity of an agency rule is con-

cerned, a reviewing court charged with the task of deter-

mining whether the rule is authorized by the governing

statute performs a function akin to determining whether

a statute is authorized by the Constitution. This analogy

is, of course, reinforced by decisions of this Court rec-

ognizing that agency regulations of general applicability

that have the force and effect of law are much like leg-

islation and, indeed, are characterized as “legislative”

rules. See, e.g., Chrysler Corp. v. Brown, 441 U.S. 281,

302-303 (1979); Batterton v. Francis, 432 U.S. 416, 425

n.9 (1977); see also Industrial Union Department v.

American Petroleum Institute, 448 U.S. 607, 663 (1980)

21 In language presaging its later decisions under the APA, the

Court stressed in Illinois Central R. R. that it could not, “under the

guise of exerting judicial power, usurp merely administrative func-

tion by setting aside a lawful administrative order upon [the

Court's] conception as to whether the administrative power has been

wisely exercised.” 215 U.S. at 470. Under the pre-APA cases, then, it

was not sufficient for a court to set aside administrative action that

it “shall appear to be unwise or burdensome or inferior to another,”

since [error or unwisdom is not equivalent to abuse.” American

Telephone & Telegraph Co. v. United States, 299 U.S. 232, 236

(1936) ; see also id. at 237 (regulations could be invalidated if they

were “the expression of a whim rather than an exercise of judg-

ment“); Pacific States Bor & Basket Co. v. White, 296 U.S. 176, 186

(1935); and Baltimore & Ohio R.R. v. Pitcairn Coal Co., 215 U.S.

481, 494 (1910), and Kansas City Southern Ry. v. United States,

231 U.S. 423, 443-444 (1913), cited in New York & Queens Gas Co.

v. McCall, supra, 245 U.S. at 348.

(Burger, C.J., concurring) .” In much the same way as a

legislature, albeit within the narrower limits defined by

Congress itself, administrative agencies are charged with

the duty to assess relevant factual and policy considera-

tions and to “weigh the competing interests and arrive at

a balance that is deemed ‘the public convenience and

necessity.T Bowman Transportation, Inc. v. Arkansas-

Best Freight System, Inc., supra, 419 U.S. at 293.

Except where an Act of Congress contravenes a specific

constitutional limitation, a court may strike down the

statute only if it is not rationally related to a legitimate

governmental purpose. See, e. g., Hodel v. Virginia Sur-

face Mining & Reclamation Association, 452 U.S. 264,

276 (1981); Hodel v. Indiana, 452 U.S. 314, 323-324

(1981) ; Schweiker v. Wilson, 450 U.S. 221, 230 (1981).

This Court’s formulation of the test for assessing the

validity of agency regulations under the arbitrary and

capricious test is quite similar: such rules may be set

aside only “if they are not rational and based on a con-

sideration of the relevant factors.” FCC v. National Citi-

zens Committee for Broadcasting, supra, 436 U.S. at 803.

2. The foregoing discussion of the text and background

of 5 U.S.C. 706(2)(A) demonstrates that NHTSA’s ac-

tion in this case was not arbitrary or capricious. Rescis-

sion of the passive restraint requirement plainly was

within the limits prescribed by Congress, for the Safety

Act expressly authorizes the Secretary to “amend or

revoke any Federal motor vehicle safety standard” (15

U.S.C. 1892(e)). Nor is there anything to suggest that

2 The Final Report of the Attorney General's Committee on

Administrative Procedure states (at 27), for example, that “sub-

stantive regulations have many of the attributes of statutes them-

selves and are well described as subordinate legislation.” See also

S. Rep. No. 752, 79th Cong., Ist Sess. 39 (1945).

The Final Report of the Attorney General’s Committee on

Administrative Procedure proposed a similar standard (at 117):

whether there is “a rational relationship between a regulation and

the governing statute.”

NHTSA exercised its conceded power in such an unrea-

sonable manner that it must be deemed “not in accordance

with law” and hence, in substance, outside of the limits of

authority conferred by Congress. To the contrary, the

agency’s exercise of its power under 15 U.S.C. 1392(e)

was strictly “in accordance with law”: the decision to

rescind was based on the agency’s conclusion that it could

not affirmatively find that the criteria set forth in the law

itself were satisfied, in view of the substantial uncer-

tainty, acknowledged by the court below, that any signifi-

cant safety benefits would accrue. A decision so directly

related to the statutory criteria, taken pursuant to an ex-

press grant of authority to amend or revoke a safety

standard, cannot be thought to have so far departed from

what may reasonably have been within the contemplation

of Congress as to be deemed unauthorized.

The parallel between the statutory arbitrary and capri-

cious standard and constitutional restraints further rein-

forces this conclusion. Applying the usual constitutional

test, NHTSA’s order rescinding the passive restraint

requirement plainly is rationally related to the purposes

and limitations of the Safety Act. But in addition, it is

significant that absent invidious purpose or classification,

the Constitution imposes no restrictions on the authority

of a legislature to repeal a statute—even though a

rational basis would have been necessary to support en-

actment of the statute. Crawford v. Board of Education

of Los Angeles, No. 81-38 (June 30, 1982), slip op. 7,

10-11; Hunter v. Erickson, 393 U.S. 385, 390 n.5 (1969) ;

Reitman v. Mulkey, 387 U.S. 369, 375 (1967). This

suggests that a court must be extremely reluctant under

the APA to set aside an agency’s decision to rescind a

regulation that was not required by its authorizing

statute, irrespective of whatever standard of reasonable-

24 The Constitution likewise affords an administrative body broad

latitude to rescind prior action. Dayton Board of Education v.

Brinkman, 443 U.S. 526, 531 n.5 (1979) ; Dayton Board of Education

v. Brinkman, 433 U.S. 406, 414 (1977).

ness is applicable to the promulgation of the regulation.

A rule of administrative law that tends to “lock in” an

agency so that action taken cannot be undone, like a con-

stitutional rule to the same effect, would in the long run

deter valuable experimentation. Crawford v. Board of

Education of Los Angeles, supra, slip op. 7, 10-11 & n.22;

Palmer v. Thompson, 403 U.S. 217, 228 (1971) (Burger,

C.J., concurring) .

B. The Court Of Appeals Erred In Concluding That It

Was Arbitrary And Capricious For NHTSA To

Rescind The Passive Pestraint Requirement On The

Basis Of Substantiai Uncertainty That It Would

Produce Significant Safety Benefits

Despite NHTSA’s thorough and reasoned assessment of

Modified Standard 208 in light of the relevant statutory

criteria, the court of appeals held that NHTSA acted

arbitrarily and capriciously in rescinding the passive

restraint requirement. In the court’s view, it was not

sufficient, in order for NHTSA to rescind the require-

ment, that there was “substantial uncertainty” whether

usage rates would increase with the installation of de-

tachable passive belts and therefore whether the require-

ment would actually produce significant safety benefits.

Rather, the court held, NHTSA must affirmatively demon-

strate to the satisfaction of the reviewing court that

Modified Standard 208 will not produce the benefits on

which its promulgation in 1977 was premised before it

may amend the Standard (Pet. App. 51a). This unprece-

dented holding is flatly inconsistent with the limited role

of a reviewing court under the arbitrary and capricious

standard.

The court pointed to nothing in the language or legis-

lative history of either the APA or the Safety Act to sup-

port its holding. Nor did it cite any judicial precedent.

The best the court could do was to state the point in

reverse: it would be unreasonable, the court explained,

for an agency to promulgate a regulation in the first

instance simply because of “substantial uncertainty” that

the status quo—i.e., the absence of a regulation—was any

better (Pet. App. 51a). Conversely, the court apparently

believed, an agency cannot alter the status quo by rescind-

ing a regulation on the basis of substantial uncertainty”

that the regulation will accomplish its intended purpose

in an efficient manner. This reasoning is both illogical

and contrary to the text and structure of the Safety Act.

The court of appeals is quite correct that the Secretary

would be justified in declining to promulgate a safety

standard in the first instance if he were uncertain that

the standard would be better than no standard at all,

because in that event the Secretary might well be unable

to make an affirmative finding that the proposal satisfied

the statutory requirements that a standard be appropri-

ate, reasonable, practicable, and meet the need for motor

vehicle safety. But the court of appeals drew the wrong

conclusion from its initial premise. It is precisely because

the Secretary reasonably may decline to isswe a safety

standard in the first instance if he has substantial doubts

about its efficacy that the Secretary also may decline to

retain such a standard if he has developed similar doubts.

For in the latter situation, no less than the former, the

Secretary may be unable to make the affirmative finding

that the standard satisfies the statutory criteria for a

safety standard to be in effect.”

* The court of appeals itself appeared to recognize this point,

conceding that “[i]mplicitly, the perpetuation of a regulation also

involves a decision that its continuation is worthwhile, and reason-

able decisionmaking requires that this too be supported by rea-

sons” (Pet. App. 54a). The court stated that if NHTSA was un-

certain that usage rates would increase under the Standard as

written, it reasonably could have suspended the Standard (ibid.).

The court failed to explain why, if the agency would be free to

suspend the Standard (presumably for as long as the uncertainty

persisted), the agency was not free to rescind it. Whether the

Standard were suspended or rescinded, the agency would be free to

reinstate the Standard at a later date if evidence indicated that it

would fulfill the statutory purposes.

Nor is the court of appeals’ holding defensible on the

theory that an agency is required to make an affirmative

showing whenever it departs from the status quo, whether

the movement is from the absence to the existence of a

regulation on a particular subject, or the reverse. The

pertinent inquiry is not whether the agency has altered

the status quo or maintained it, but rather what limits

the governing statute places on the agency action in

question. In this case, although the Safety Act requires

the Secretary to make an affirmative finding that a stand-

ard satisfies the statutory criteria before he may place

the standard into effect, the Act requires no affirmative

finding that the statutory criteria will not be satisfied for

there to be an adsence of a safety standard in a partic-

ular area. The court of appeals therefore was without

authority to insist that NHTSA affirmatively estabiish to

the court’s satisfaction that the passive restraint require-

ment would not produce the requisite safety benefits

before it could rescind that requirement.“

As the court of appeals recognized, then, “rescission

more resembles agency refusal] to act than an agency deci-

sion to act” (Pet. App. 25a), because the effect of rescis-

sion is that the agency has refused to supply a regulation

on the subject in question. And as the court of appeals

further acknowledged, “it is only in the rarest and most

compelling circumstances that courts overturn an agency’s

expert“ determination not to pursue a particular pro-

gram or policy at a given time’” (ibid., citing WWHT,

Inc. v. FCC, 656 F.2d 807, 818-819 (D.C. Cir. 1981), and

Natural Resources Defense Council, Inc. v. SEC, 606 F.2d

1031 (D.C. Cir. 1979) ) ; see also S. Rep. No. 752, supra,

at 44. No such compelling circumstances are present

here. The responsibility of the court below was limited to

26 The Safety Act essentially embodies a congressional presump-

tion against regulation, which may only be overcome in specifically

defined circumstances. The court of appeals’ opinion, in contrast,

embodies the opposite presumption in any area in which a safety

standard has been promulgated.

determining whether NHTSA rationally could have be-

lieved in the circumstances presented that sufficient un-

certainty existed to counsel rescission of the rule. FSC v.

Transcontinental Gas Pipe Line Corp., 423 U.S. 326, 331

(1976); Citizens to Preserve Overton Park v. Volpe,

supra, 401 U.S. at 416. Once the court of appeals con-

cluded that NHTSA was reasonable in its assessment of

the uncertainty regarding usage rates (Pet. App. 5la),

its role in reviewing NHTSA’s action was at an end.“

Agency action is not rendered invalid because the rec-

ord does not contain firm proof that the eventualities on

27 The court of appeals stated that if NHTSA believed that passive

belts now in use cannot be the basis for predicting usage rates under

Modified Standard 208, “then only a well justified refusal to seek

more evidence could render rescission non-arbitrary” (Pet. App.

53a). The only authority the court cited for this proposition was

its own prior decision in National Association of Demolition Con-

tractors v. Costle, 505 F.2d 748, 751-752 (1977). But the court

there sustained E.’A’s decision not to conduct the test in question.

In any event, that case involved a challenge to EPA’s failure to

conduct a test before adopting a regulation, and it therefore

presented the question whether further evidence was neccssary to

sustain an agency’s action imposing a regulatory burden. That

decision does not support the imposition of a requirement that an

agency obtain additional evidence before rescinding a regulation.

Even if the court of appeals were correct that generation of fur-

ther data on usage rates might be desirable, it clearly exceeded its

authority in requiring that Modified Standard 208 remain in effect

until those data were obtained. The question whether manufacturers

and consumers should be required to devote their scarce resources

to compliance with the Standard pending further study is a matter

uniquely within the competence and discretion of the expert agency

to which Congress has entrusted these difficult issues of statutory

policy. Cf. FPC v. Transcontinental Gas Pipe Line Corp., supra,

423 U.S. at 329-331. Moreover, 15 U.S.C. 1392(f)(1) provides that

in prescribing standards, the Secretary shall “consider relevant

available motor vehicle safety data (emphasis added). This lan-

guage suggests that a safety standard should re’ be in effect if the

data thought necessary to support it are not available. If this Court

sustains the rescission of the passive restraint requirement, NHTSA

will of course remain free to reinstate such a requirement in the

future if further experience or studies show that it would satisfy the

statutory criteria.

which the action is premised will actually occur, where

the agency’s determinations : primarily of a judg-

menial or predictive nature. “in such circumstances com-

plete factual support in the record for the [agency’s]

judgment or prediction is not possible or required; ‘a

forecast of the direction in which future public interest

lies necessarily involves deductions based on the expert

knowledge of the agency.“ FCC v. National Citizens

Committee for Broadcasting, supra, 436 U.S. at 814, quot-

ing FPC v. Transcontinental Gas Pipe Line Corp., 365

U.S. 1, 29 (1961). See also FCC v. WNCN Listeners

Guild, 450 U.S. 582, 594-595 (1981). It likewise is not

“possible or required” in this case that NHTSA point to

concrete data on the probable use of detachable passive

belts under a safety standard that has not yet gone into

effect. Especially where, as here, an agency seeks merely

to withdraw a burdensome rule that was premised on a

prior forecast of benefits that has since been found to be

of doubtful validity, rather than to impose new burdens

in the face of uncertain conditions, the agency cannot be

precluded from acting because it has been unable to go

further and develop evidence to prove that the forecast

was actually wrong. Cf. NAACP v. FCC, 682 F.2d 993,

1000-1001 (D.C. Cir. 1982).

Moreover, this Court has stressed that an administra-

tive agency must remain free to reassess its regulatory

policies and adapt them to changing circumstances. FCC

v. National Citizens Committee for Broadcasting, supra,

436 U.S. at 811; Permian Basin Area Rate Cases, 390

U.S. 747, 784 (1968); American Trucking Associations,

Inc. v. Atchison, T. & S. F. Ry., 387 U.S. 397, 416 (1967).

An agency “should be alert to the consequences of its

policies and should stand ready to alter its rule if neces-

sary to serve the public interest more fully.” FCC v.

WNCN Listeners Guild, supra, 450 U.S. at 603, citing

National Broadcasting Co. v. United States, 319 U.S. 190,

225 (1943). See Chrysler Corp. v. Department of Trans-

portation, supra, 472 F.2d at 673; PACCAR, Ine. v.

National Highway Traffic Safety Administration, 573

F.2d 632, 642 (9th Cir.), cert. denied, 439 U.S. 862

(1978). The decision of the court of appeals conflicts

with these principles of administrative discretion and

flexibility by erecting a judicial barrier to the revision of

regulatory policy, in the form of a requirement that the

agency first convince the reviewing court that any pre-

viously promulgated rule will not serve the statutory pur-

poses. The long term effect under this and like statutes **

may be not only to freeze existing regulations that have

become outmoded, but to chill experimentation in the

future for fear that what is done cannot later be readily

undone f it proves unwise or ineffective. Cf. Crawford v.

Board of Education of Los Angeles, supra, slip op. 7,

10-11 & n.22.

To be sure, where an agency changes from a “settled

course,” it may have some duty to explain that change.

Atchison, T & S. F. Ry. v. Wichita Board of Trade, 412

U.S. 800, 807-808 (1973). But this procedural require-

ment does not alter an agency’s substantive authority to

“flatly repudiate [prior] norms, deciding, for example,

that changed circumstances mean that they are no longer

required in order to effectuate congressional policy.” Jd.

at 808. Here, as explained above (see pages 7-11, supra),

NHTSA fully explained its decision to rescind the

passive restraint requirement in light of such changed

circumstances.

In any event, there hardly has been a “settled course”

by NHTSA over the years regarding the mandating of

passive restraints. Although NHTSA has considered the

issue of automatic restraints since 1969, no requirement

that such devices be installed has ever gone into effect.

With the exception of the periods from 1970 to 1972 and

from 1977 to 1981, when a mandatory passive restraint

requirement was in place for the future, the issue has at

most only been under consideration by the agency or, as

28 See, e.g., 15 U.S.C. 77sss(a) ; 15 U.S.C. (Supp. V) 1193(j); 15

U.S.C. (Supp. V) 2056(a); 21 U.S.C. 360d(a)(2)(A); 30 U.S.C.

(Supp. V) 811(a).

in the period following Secretary Coleman’s decision and

now, subject to an affirmative judgment that automatic

restraints should not be mandated under prevailing con-

ditions. See pages 3-8, supra.“ Indeed, Secretary Adams’

promulgation of Modified Standard 208 was itself a sharp

break with Secretary Coleman’s decision just four months

earlier, and that break occurred in the absence of an

intervening change of circumstances of the kind that

warranted reexamination of the rule in 1981.

C. The Decision To Rescind The Passive Restraint Re-

quirement In Modified Standard 208 Was Not Ren-

dered Arbitrary And Capricious Simply Because

The Agency Did Not First Consider Whether Some

Other Version Of A Passive Restraint Requirement

Would Satisfy The Statutory Criteria

The court of appeals also held that, even if NHTSA

had correctly concluded that Modified Standard 208 is

“unjustified as written” (Pet. App. 49a), its rescission of

the passive restraint requirement of Modified Standard

208 was arbitrary and capricious because the agency

“artificially foreclosed attempts to further the purpose of

the Safety Act” by not considering certain other alterna-

tive courses of action (ibid.; see id. at 54a-66a). This

holding is clearly wrong, because NHTSA’s rescission of

one particular version of a passive restraint requirement

in no way foreclosed the consideration of other options.

As an initial matter, the court of appeals itself

acknowledged that the agency adequately considered the

three alternatives to rescission that were set forth in the

April 9, 1981 Notice of Proposed Rulemaking: reversing

the sequence of compliance; requiring simultaneous com-

pliance; and amending the Standard to exempt the front

20 Nor has NHTSA abandoned its support of passive restraints.

Such restraints remain one means of compliance with Modified

Standard 208 (49 C. F. R. 571.208/S4.1.2.1), and NHTSA could rein-

state a mandatory passive restraint requirement at some point in

the future if further developments warrant. See also note 27, supra.

center seating position. The court found NHTSA’s anal-

ysis of these alternatives to be “impressively thorough

and careful” (Pet. App. 55a & n.32). But the court con-

cluded that NHTSA also should have considered whether

to amend the passive restraint requirement to permit

compliance by airbags or by belts only if they are

nondetachable.

Moreover, NHTSA in fact did consider whether it

should mandate some kind of use-compelling device, such

as continuous belts. NHTSA concluded that it should not,

based on past congressional reaction to use-compelling

devices, public fears about being trapped, and the possible

complications of extrication after an accident (Pet. App.

109a-112a). These reasons, tied directly to the statutory

criteria of practicability and the need for safety, fully

supported rejection of this alternative. In addition, the

court acknowledged that the cost of airbags ranged from

$200 to $1000 per unit, depending upon economies of

scale, and that NHTSA had considered those costs in its

regulatory impact analysis (id. at 65a-66a; see C.A. App.

172).

In any event, the court’s insistence that NHTSA con-

sider the airbag and continuous belt alternatives as a

condition precedent to rescission of the passive restraint

requirement of Modified Standard 208 represents another

wholly unwarranted judicial intrusion into the adminis-

trative process. The principal and pressing issue before

the agency was whether the particular version of a pas-

sive restraint standard that had already been promul-

gated and was scheduled to go into effect in the near

future could be found to satisfy the statutory criteria for

a motor vehicle safety standard, not whether some other

version of a passive restraint standard that had not yet

even been proposed for public comment would satisfy

those criteria. Once NHTSA determined that it was

incapable of funding that the passive restraint require-

ment as written met the statutory cirteria, it manifestly

was reasonable for the agency to move expeditiously to

withdraw that requirement. Otherwise, manufacturers

would have had to devote their scarce resources to com-

plying with a safety initiative that posed a considerable

risk of being ineffective or even counterproductive.

It is significant in this regard that ever since the

Department of Transportation issued its original Stan-

dard 208 in 1967, even minor adjustments to the Standard

have been identified in notices of proposed rulemaking

before adoption. The two alternatives the court identified

in this case, however, would have required a major revi-

sion of Modified Standard 208 and would have imposed

substantial burdens on manufacturers and the public. In

these circumstances, had NHTSA actually adopted one of

the alternatives suggested by the court, it might have

faced challenges from the manufacturers and others on

the ground that its notice of proposed rulemaking did not

give adequate warning that such a rule might be adopted.

See, e.g., Kollett v. Harris, 619 F.2d 134, 144 (Ist Cir.

1980) ; Rodway v. United States Department of Agricul-

ture, 514 F.2d 809, 814-815 (D.C. Cir. 1975); Wagner

Electric Corp. v. Volpe, 466 F.2d 1013, 1019 (3d Cir.

1972); see also Eli Lilly & Co. v. Costle, 444 U.S. 1096,

1097-1098 (1980) (Rehnquist and Powell, JJ., dissenting

from the denial of certiorari).

The prospect of procedural challenges to one side,

principles of fairness, sound administration, and feasibil-

ity almost certainly would have required NHTSA to pub-

lish yet another notice of proposed rulemaking specifically

addressing the continuous belt and airbag options, and

this step would have been taken ony after NHTSA had

first developed proposed technical performance criteria

calculated to satisfy the statutory requirement that a

safety standard be stated in objective terms. Rulemaking

proceedings of such a complex and controversial nature

might well have taken some time for the agency to com-

plete. There is no reason in law, policy, or common sense

why NHTSA was required to retain on the books the one

passive restraint requirement that it already had evalu-

ated and found wanting while it searched for some other

standard that satisfied the statutory requirements. Only

the court of appeals’ apparent presumption in favor of

a passive restraint standard in some form can explain

its insistence that some version of such a standard remain

on the books until mandatory passive restraints were

affirmatively shown to be unworkable in all respects.

Moreover, contrary to the court of appeals’ observation,

NHTSA’s rescission of a passive restraint requirement

that was expected tu be satisfied by installation of detach-

able belts did not “foreclose” NHTSA from considering in

the future other forms of a passive restraint standard or

other options for improving occupant protection (Pet.

App. 49a). The agency remains free to conduct research

and collect data about these alternatives and to consider

them more formally in a new rulemaking proceeding

initiated by NHTSA itself or requested in a rulemaking

petition filed by an interested party pursuant to 5 U.S.C.

553(e). But nothing in the APA or the Safety Act

required that other possible courses of action be con-

sidered in the rescission proceeding rather than in an

independent proceeding focusing more directly on the

alternatives. This Court has only recently reiterated the

“very basic tenet of administrative law that agencies

should be free to fashion their own rules of procedure”

(Vermont Yankee Nuclear Power Corp. v. NRDC, supra,

435 U.S. at 544), thereby leaving them free “ ‘to pursue

methods of inquiry capable of permitting them to dis-

charge their multitudinous duties’” (id. at 543, quoting

FCC v. Schreiber, 381 U.S. 279, 290 (1965), and FCC v.

Pottsville Broadcasting Co., 309 U.S. 154, 143 (1940)).

The court of appeals’ imposition of its own preferred

order of proceeding is inconsistent with this admonition.

It is instructive in this regard that when Congress

intends that an agency consider alternative csurses of

action before reaching a particular decision, it has ex-

pressly so provided. For example, the highway statutes

involved in Citizens to Preserve Overton Park v. Volpe

explicitly required the Secretary to consider whether there

was a “feasible and prudent alternative” to locating a

highway in parkland. 401 U.S. at 411. Similarly, the

National Environmental Policy Act, which was the basis

of the Court’s discussion of the consideration of alterna-

tives in Vermont Yankee (435 U.S. at 549-555), explic-

itly requires that all federal agencies include in every

report of major federal action significantly affecting the

quality of the human environment “a detailed statement

by the responsible official on * * * alternatives to the

proposed action.” 42 U.S.C. 4332 (C) (iii). In Pillai v.

CAB, 485 F.2d 1018, 1029 (D.C. Cir. 1973), cited by the

court of appeals (Pet. App. 49a), Congress had enacted

a statute for the purpose of conferring a regulatory

option on the CAB to be employed in the context of

international negotiations such as those at issue in that

case, yet the CAB had failed to address that alternative.

485 F.2d at 1027-1029. And in Scenic Hudson Preserva-

tion Conference v. FPC, 354 F.2d 608 (2d Cir. 1965),

cert. denied, 384 U.S. 941 (1966), also cited by the court

below (Pet. App. 56a), the FPC had conceded that under

the applicable statute, 16 U.S.C. 803(a), it was required

to consider alternatives to licensing that might better pro-

tect recreational values. 354 F.2d at 614, 617.

The Safety Act, on the other hand, contains no com-

parable requirement that alternatives be considered. Nor

does the APA. Indeed, in contrast to the detailed con-

sideration of environmental factors required under

NEPA, the informal rulemaking provisions of the APA

require only the publication of a notice of proposed rule-

making, an opportunity for comment, and the incorpora-

tion in the rules adopted of “a concise genera] statement

of their basis and purpose.” 5 U.S.C. 553(c). There is no

explicit requirement to discuss or consider other possible

rules that were not ultimately adopted.” Given Congress’

“findings and conclusions, and the reasons or basis therefor, on all

mandate in one statute of government-wide application—

NEPA—that alternatives be considered, courts should be

reluctant to read such a requirement into another statute

of government-wide application—the APA—that does not

expressly so provide.

It is significant, moreover, that Overton Park, Vermont

Yankee, Pillai, and Scenic Hudson all involved the con-

sideration of alternatives before the agency took action.

Even if we assume that the Safety Act and the APA

might likewise require NHTSA, before adopting a motor

vehicle safety standard, to address alternative standards

or other courses suggested by interested parties or by

NHTSA itself—in order to provide some assurance that

the standard ultimately selected is sufficiently “appropri-

ate,” “practicable” and “reasonable” and will “meet the

need for motor vehicle safety” when compared to others—

NHTSA would have no such obligation before rescinding

a safety standard. There is no requirement that the

quoted statutory criteria be satisfied for there to be an

absence of a safety standard, and there accordingly is no

basis for requiring consideration of alternative means by

which the statutory criteria might be met.“

the material issues of fact, law, or discretion presented on the

record.”

31 The court of appeals also suggested (Pet. App. 57a-58a) that

NHTSA’s doubts about the effectiveness of detachable automatic

belts in increasing belt usage over the rates experienced for manual

belts means that detachable automatic belts might not be “passive

restraints” at all. In the court’s view, it would be irrational for

NHTSA to rescind the passive restraint requirement based on indus-

try plans to install detachable belts that do not even comply with

the Standard. This reasoning is erroneous.

It always has been understood that detachable automatic belts

comply with Standard 208. Indeed, until 1978, if belts rather than

airbags were to be installed to comply with the Standard, such belts

were required to be detachable by means of a latch mechanism, in

order to permit emergency exit. See note 8, supra. When at-

tached, a detachable belt provides complete passive protection, be-

D. The Court Of Appeals Erred In Concluding That

“Legislative Reaction” To The Passive Restraint

Of The

Issue, Short Enactment Of Positive Law,

Narrowed The Scope Of NHTSA’s Discretion To

Rescind The Passive Restraint Requirement

Underlying the court of appeals’ other holdings, dis-

cussed in Parts B and C, supra, was its view that

NHTSA’s discretion under the Safety Act to amend or

revoke the mandatory passive restraint provisions of

Modified Standard 208 had been restricted by various

episodes of “legislative reaction” to the passive restraint

issue. The court’s reading of the legislative record as

reflecting a firm and consistent congressional commitment

to mandatory passive restraints is erroneous. But aside

from this misreading of the legislative materials, the

court’s unprecedented suggestion that congressional inac-

tion and the consideration of bills never enacted can some-

how narrow an agency’s discretion under previously

enacted law is inconsistent with the explicit constitutional

cause no action by the occupant is necessary for the belt to be

placed in position around him when the door is closed. That mem-

bers of the public might use the emergency latch mechanism to

detach the belt permanently, as NHTSA predicted, does not

undermine the belts’ passive nature. The court of appeals’ sugges-

tion that such belts do not satisfy Standard 208 therefore is wholly

unfounded.

In any event, the court of appeals’ speculation about the “passive”

nature of detachable belts is a bootstrap. The issue before the

court of appeals was not whether a detachable belt satisfies the

“passive restraint” requirements of the Standard, because NHTSA,

in the very action under review here, has rescinded that require-

ment. A standard expressed in “passive restraint” terms is not

compelled by the Act, and the appropriateness of NHTSA's action

therefore is not to be measured in those terms. The court instead

was required to review NHTSA’s decision under the explicit statu-

tory criteria of practicability, reasonableness, and the need for

safety, on which NHTSA had relied, irrespective of the court’s own

view of whether detachable belts are “active” or “passive” restraints

as a theoretica matter.

prerequisites for according legally binding effect to the

actions of Congress.

1. a. The first episode upon which the court of appeals

relied was Congress’ enactment in 1974 of the prohibition

against an ignition interlock standard and of the provi-

sion for a legislative veto of any standard requiring or

permitting compliance by means of airbags. Pet. App.

33a-36a; see 15 U.S.C. 1410b. As the court of appeals

acknowledged (id. at 34a), these amendments had their

origins in a floor amendment, adopted by the House by an

overwhelming vote of 339-49 (120 Cong. Rec. 27822-

27823 (1974)), that would have barred NHTSA from

requiring ignition interlocks or passive restraints (id. at

27815). The debates were replete with objections that the

interlock standard then in effect interfered with the occu-

pant’s freedom of choice and would impose excessive costs

(id. at 11789, 11969, 16326, 18221, 27815-27822) .*

The Conference Committee proposed and Congress

enacted the compromise embodied in 15 U.S.C. 1410b,

which bars ignition interlocks and provides for a legisla-

tive veto of any future imposition of a nonbelt passive

restraint standard. The Conference Committee substitute

reflected the fact that a standard mandating passive

restraints had not yet been adopted by NHTSA following

the Sixth Circuit’s decisions in Chrysler Corp. and Ford

Motor (see pages 4-5, supra) and that the Members

“(did] not know what lies ahead in the field of passive

restraints” in view of questions about the adaptability of

airbags to smaller cars, indications that the utility of air-

bags is limited primarily to head-on collisions, and

uncertainty about the cost of airbags. 120 Cong. Rec.

32 For the same reasons, the Senate also had gone on record, by

passing an amendment to a pending highway aid bill by a vote of

64-21, as opposing the ignition interlock requirement and favoring

congressional review of any mandatory passive restraint standard.

120 Cong. Rec. 30558, 30836-30850 (1974).

35637 (1974) (remarks of Rep. Wyman) ; see also id. at

27819-27820, 30849 (letters from Department of Trans-

portation stating that no final decision had yet been made

with respect to mandating passive restraints). Congress’

restricting of NHTSA’s freedom even to adopt occupant

restraint standards in these circumstances scarcely can be

viewed as an endorsement of passive restraints, much less

as an expression of intent to restrict NHTSA’s freedom

to rescind whatever passive restraint standard might be

adopted in the future because of doubts about its

effectiveness.

b. The second “legislative reaction” upon which the

court of appeals relied was Congress’ failure to exercise

a legislative veto of Modified Standard 208 when it was

promulgated in 1977. Pet. App. 36a-37a. The court of

appeals noted that the Senate voted 65-31 to table a reso-

lution of disapproval, following a debate during which a

number of Senators spoke favorably about the Standard,

and that the responsible House Committee voted to table a

resolution of disapproval. From this, the court leaves the

misleading impression of pervasive congressional ap-

proval of Secretary Adams’ decision. Ibid., 123 Cong.

Rec. 33318-33332 (1977). What the court fails to note,

however, is the substantial hostility to the Standard in

the House of Representatives. The resolution of disap-

proval had 160 sponsors in the House, and it was tabled

in committee by the narrow vote of 16-14. 124 Cong. Rec.

17186 (1978) (remarks of Rep. Shuster); id. at 17189

(remarks of Rep. Broomfield).

Indeed, because the full House was deprived of an

opportunity to vote on the passive restraint issue in 1977,

Representative Shuster offered a floor amendment in 1978

to NHTSA’s Fiscal Year 1979 appropriations bill barring

the use of funds to implement or enforce any standard

that required any motor vehicle to be equipped with an

occupant restraint system other than a belt system. Al-

though the Members recognized that the amendment to

the appropriations bill would have limited practical

importance because Modified Standard 208 was not sched-

uled to go into effect until well after the end of Fiscal

Year 1979, the rider was touted as the “only vehicle left

for Members to express themselves” on the passive

restraint issue (124 Cong. Rec. 17186 (1978) (remarks

of Rep. Shuster) ; see also id. at 17189 (remarks of Rep.

Daniel) ; id. at 17191 (remarks of Rep. Devine); id. at

17194 (remarks of Rep. Dingell) ; id. at 17197 (remarks

of Rep. Broyhill)). The amendment was adopted by a

vote of 237-143 (id. at 17199), following an extensive

debate during which the Standard was attacked on the

grounds that it would be expensive and ineffective and

would constitute an irritating and unwarranted expansion

of the regulatory role of government at the expense of

personal freedom in the same manner as the interlock

requirement overturned in 1974. Id. at 17186-17199.

Thus, the expression of sentiment by the House of

Representatives that was most contemporaneous to the

promulgation of Modified Standard 208 was strongly

against implementation of the passive restraint require-

ment. The rider was enacted into law, Pub. L. No.

95-335, Section 317, 92 Stat. 450, and it was reenacted in

the appropriations act for Fiscal Year 1980, Pub. L. No.

96-131, Section 317, 93 Stat. 1039, following similar

debate in the House of Representatives. 125 Cong. Rec.

H8055, H8066 (daily ed. Sept. 18, 1979).

e. The final episode upon which the court of appeals

relied was Congress’ consideration in 1979 and 1980 of

proposals, never enacted into law, that would have either

overturned or amended Modified Standard 208. Pet. App.

38a-46a. As before, the congressional reaction began with

an overwhelming vote of the House of Representatives

against mandatory passive restraints—this time, a vote

of 320 to 73 in favor of an amendment to a pending au-

thorization bill to bar NHTSA from spending funds to

administer an occupant restraint standard unless the

standard permitted the purchaser of the vehicle to select

manual rather than passive restraints. 125 Cong. Rec.

12285-12287 (1979).

The Conference Committee reported a substitute meas-

ure that would have required NHTSA to amend Standard

208 to postpone the initial compliance date by one year, to

reverse the compliance schedule, and to mandate that

each of the five largest manufacturers make airbags

available in one vehicle line for three years. H.R. Conf.

Rep. No. 1371, 96th Cong., 2d Sess. 15-17 (1980). If

the Conference Committee’s proposal had been enacted

into law, it presumably would have constituted a ratifica-

tion of Modified Standard 208 to the extent that Congress

did not order amendment of the Standard.“ But the pro-

posal was not enacted. It passed the Senate, 126 Cong.

Rec. 813506 (daily ed. Sept. 25, 1980), but failed in the

House because it did not garner the votes necessary to be

passed under a suspension or waiver of the House Rules

that barred House conferees from agreeing to new mat-

ter. 126 Cong. Rec. H10194-H10198 (dai ed. Oct. 1,

1980), 126 Cong. Rec. H11912-H11918 (daily ed. Dec. 4,

1980) .*

2. The court of appeals plainly erred in viewing this

history as reflecting a congressional commitment to man-

Even that ratification of the Standard as promulgated in 1977

presumably would not have barred NHTSA from amending the

Standard in light of changed circumstances, as it did here. See

126 Cong. Rec. H12120 (daily ed. Dec. 5, 1980) (remarks of Rep.

Dingell).

% It is ironic that the court of appeals should rely on the 1980

Conference Committee proposal, since that proposal undermines

the court’s conclusion that NHTSA’s action was arbitrary and

capricious because it did not first consider the alternatives of re-

quiring automatic belts to be nondetachable and mandating the

installation of airbags in all vehicles. The Conference Committee

proposal would have required that all automatic belts be detachable

and that airbags be offered as an option only by the five largest

manufacturers and only in one line, rather than mandating that

they be installed in all vehicles.

datory passive restraints. To the contrary, it reflects at

most an ambivalence and political sensitivity on the sub-

ject that underscores the impropriety of the court of

appeals’ substitution of its judgment for that of the

expert agency Congress has charged with administering

the Safety Act.

However, even assuming that the court of appeals were

correct that sentiment in Congress at one time or another

has favored passive restraints, the court’s reliance on the

episodes described above nevertheless was misplaced. Con-

gress has never enacted a Jaw mandating the promulga-

tion of a passive restraint standard, as it has, for exam-

ple, in mandating certain school bus standards. See 15

U.S.C. 1392 (i). The court’s opinion instead gives legally

binding effect to congressional debates, resolutions, and

failures to act that fall short of duly enacted law, con-

cluding that such “legislative reaction” requires a more

demanding standard of judicial review and has thereby

effectively withdrawn a large measure of the discretion

NHTSA was accorded under the Safety Act to amend or

revoke the passive restraint requirement. This result

violates the bicameralism and presentation requirements

of Article I, Sections1, 7, and 8 of the Constitution and

conflicts with the doctrine of separation of powers. See

Brief for the Immigration and Naturalization Service at

17-40, 44-56, INS v. Chadha (Nos. 80-1832, 80-2170 and

80-2171, 1981 Term).

This is not a case, like Udall v. Tallman, 380 U.S. 1,

17-18 (1965), upon which the court of appeals relied

(Pet. App. 47a), in which legislative acquiescence in an

administrative interpretation of a statute may be cited as

evidence of the correctness of that interpretation.

NHTSA has not disputed that the Safety Act may be in-

terpreted to authorize the promulgation of a passive re-

straint standard—if NHTSA determines that such a

standard satisfies the criteria set forth in the Safety

Act. Here, the court of appeals relied upon the legisla-

tive activity not as a guide to the meaning of the Safety

Act as originally enacted, but rather as effectively cir-

cumscribing the power conferred on NHTSA by that Act

to determine whether to issue a motor vehicle safety

standard and whether the proposed standard satisfies the

statutory criteria.

II. EVEN IF NHTSA’S RESCISSION OF THE PASSIVE

RESTRAINT REQUIREMENT WERE INVALID,

THE COURT OF APPEALS EXCEEDED ITS AU-

THORITY BY SETTING AN EFFECTIVE DATE

FOR THAT REQUIREMENT PENDING FURTHER

PROCEEDINGS

Although the court of appeals, in its June 1, 1982 opin-

ion, set aside NHTSA’s rescission of the passive restraint

requirement, the court expressly denied the request by

respondents State Farm and NAII that Modified Stand-

ard 208 take full effect on September 1, 1982 or 1983

(Pet. App. 72a). The court explained that its opinion did

not foreclose rescission or suspension of the Standard

after further administrative proceedings and that auto-

mobile manufacturers “would justifiably feel uncertain”

about the technology that would satisfy the Standard

because of the possibility that it would be revised after

those proceedings (ibid.). The court therefore ordered a

“remand” to NHTSA with directions to submit to the

court within 30 days a schedule for resolving the ques-

tions raised by the court’s opinion, leading either to a

rescission or suspension of the Standard or to a judicially

approved schedule for the effective implementation of that

or an amended standard (id. at 72a, 74a, 161a).

In its August 4, 1982 memorandum, the court of ap-

peals found that NHTSA’s proposal for further proceed-

ings to resolve the questions raised by the June 1 opin-

ion was consistent with the court’s directions (Pet. App.

82a). Nevertheless, in a reversal of its previous refusal

to set an effective date, the court on August 4 ordered

that Modified Standard 208 go into effect as written

on September 1, 1983 unless NHTSA demonstrated to

the court’s satisfaction by October 1, 1982 that this

effective date was not “achievable” (id. at 80a)." This

action constituted a wholly unwarranted interference

with the administrative process.

Given the acknowledged possibility that NHTSA might

validly rescind the passive restraint requirement, it was

inappropriate for this reason alone for the court of ap-

peals to order compliance with the Standard by a date

certain. Moreover, even if it is assumed that a passive

restraint requirement ultimately would be retained in

Standard 208 in some form, the cowrt itself recognized

that that requirement might be revised in a number of

significant respects—e.g., to prohibit the use of detach-

able belts, to require installation of airbags, or to delete

the requirement for automatic restraints in the front

center seating position (Pet. App. 55a & n.32, 72a). It

thus was improper for the court to order con liance

with the particular version of a passive restraint require-

ment that was embodied in Modified Standard 208. This

is especially so in view of the inability of the agency

charged with administering the Safety Act to find that

the Standard with which the manufacturers would be

forced to comply even satisfies the statutory criteria of

reasonableness and practicability or meets the need for

safety.

In addition, the court of appeals’ August 4 order im-

permissibly usurped to that court authority that Con-

gress has conferred on the Secretary. Under 15 U.S.C.

1392(c) and (e), an order establishing, amending or

revoking a safety standard shall take effect no later

The court of appeals has not taken action following NHTSA’s

filing of October 1, 1982. See pages 15-16, supra.

than one year from the date of the order “unless the

Secretary finds, for good cause shown, that [a] * * *

later effective date is in the lie interest, and publishes

his reasons for such finding” (emphasis added). It there-

fore was for the Secretary, not the court, to determine

in the first instance whether and when Modified Standard

208 should go into effect in its present form, taking into

account further proceedings on remand. Cf. Burlington

Northern, Inc. v. United States, No. 81-1008 (Dec. 13,

1982). This determination then would be subject to

judicial scrutiny under the arbitrary and capricious

standard of review in the same manner as any other

amendment to a safety standard. Thus, once the court

of appeals identified errors in NHTSA’s decision, the

court was barred from further “dictating to the agency

the methods, procedures, and time dimension of the

needed inquiry and ordering the results to be reported to

the court without opportunity for further consideration

on the basis of the new evidence by the agency.” Ver-

mont Yankee Nuclear Power Corp. v. NRDC, supra, 435

U.S. at 544-545, quoting FPC v. Transcontinental Gas

Pipe Line Corp., 423 U.S. 326, 333 (1976). The court

instead should have remanded for further proceedings

on the effective date issue.

The immediate practical significance of the August 4

order was diminished by the court of appeals’ recall

of its mandate on November 18, 1982, which had the

effect of reinstating NHTSA’s rescission of the manda-

tory passive restraint standard pending review by this

Court. However, if this Court were to affirm the court of

appeals’ holding that NHTSA had not validly rescinded

the passive restraint requirement, the eifective date issue

might be raised again in the court of appeals. For this

reason, if the Court affirms the court of appeals’ June 1,

1982 judgment and order, it should remand to the court

of appeals with instructions to remand the case to

NHTSA for further proceedings on the effective date

issue as well as on the merits.

CONCLUSION

The judgment of the court of appeals should be re-

versed.

Respectfully submitted.

REX E. LEE

Solicitor General

J. PAUL McGRATH

Assistant Attorney General

KENNETH S. GELLER

Deputy Solicitor General

EDWIN S. KNEEDLER

Assistant to the Solicitor General

ROBERT E. Kopp

MICHAEL F. HERTZ

Attorneys

FRANK BERNDT

Chief Counsel

STEPHEN P. Woop

Davm W. ALLEN

Assistant Chief Counsels

EN m RUBENSTEIN

Hud F. OATEs

EILEEN T. LEAHY

SHIRLEY RANSOM

Attorneys

National Highway Traffic

Safety Administration

Department of Transportation

JANUARY 1983

APPENDIX

STATUTORY PROVISIONS INVOLVED

1. Section 103 of the National Traffic and Motor Vehi-

cle Safety Act of 1966, 15 U.S.C. 1392, provides in

pertinent part:

(a) Establishment

The Secretary shall establish by order appropriate

Federal motor vehicle safety standards. Each such

Federal motor vehicle safety standard shall be prac-

ticable, shall meet the need for motor vehicle safety,

and shall he stated in objective terms.

(b) Applicability of administrative procedure provi-

sions

Subchapter II of chapter 5, and chapter 7, of title

5 shall apply to all orders establishing, amending, or

revoking a Federal motor vehicle safety standard

under this subchapter.

aa * * * *

(e) Amendment and revocation of standards

The Secretary may by order amend or revoke any

Federal motor vehicle safety standard established

under this section. Such order shall specify the date

on which such amendment or revocation is to take

effect which shall not be sooner than one hundred and

eighty days or later than one year from the date the

order is issued, unless the Secretary finds, for good

cause shown, that an earlier or later effective date is

in the public interest, and publishes his reasons for

such finding.

(f) Factors to be considered ‘in prescribing stand-

ards

In prescribing standards under this section, the

Secretary shall—

(1) consider relevant, available motor vehi-

cle safety data, including the results of re-

search, development, testing and evaluation ac-

tivities conducted pursuant to this chapter;

(2) consult with the Vehicle Equipment

Safety Commission, and such other State or

interstate agencies (including legislative com-

mittees) as he deems appropriate;

(3) consider whether any such proposed

standard is reasonable, practicable and appro-

priate for the particular type of motor vehicle

or item of motor vehicle equipment for which it

is prescribed ; and

(4) consider the extent to which such stand-

ards v contribute to carrying out the pur-

poses of this chapter.

2. Section 10(e) of the Administrative Procedure Act,

5 U.S.C. 706, provides in pertinent part:

To the extent necessary to decision and when

presented, the reviewing court shall decide all rele-

vant questions of law, interpret constitutional and

statutory provisions, and determine the meaning or

applicability of the terms of an agency action. The

reviewing court shall—

(1) compel agency action unlawfully with-

held or unreasonably delayed; and

(2) hold unlawful and set aside agency ac-

tion, findings, and conclusions found to be—

(A) arbitrary, capricious, an abuse of

discretion, or otherwise not in accordance

with law;

* * * * *

K ». . coveenment cle orrice; 1962 395732 1243

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.