Petition for Writ of Certiorari — New York v. Dole

86-999.

Supreme Court, U.S.

No. 86- FiLED

»*

OctToBerR TERM, 1986

IN THE DEC 17 1986

Supreme Court of the United Sater sooo. m

t

THE STATE OF NEW YORK; ROBERT ABRAMS, AT-

TORNEY GENERAL OF THE STATE OF NEW YORK;

JAMES P. CORCORAN, SUPERINTENDENT OF IN-

SURANCE OF THE STATE OF NEW YORK; and the

NEW YORK STATE DEPARTMENT OF INSURANCE,

Petitioners,

VS.

ELIZABETH DOLE, SECRETARY OF THE DEPART-

MENT OF TRANSPORTATION; THE DEPARTMENT

OF TRANSPORTATION; DIANE STEED, AD-

MINISTRATOR OF THE NATIONAL HIGHWAY

TRAFFIC SAFETY ADMINISTRATION; and the

NATIONAL HIGHWAY TRAFFIC SAFETY

ADMINISTRATION,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

ROBERT ABRAMS

Attorney General of the

State of New York

Attorney for Petitioners

120 Broadway

New York, New York 10271

(212) 341-2300

December 17, 1986

(See Reverse Side for Further Appearances)

OQ. PereR SHERWOOD

Solicitor General

PeTER BIENSTOCK™

Mary HILGEMAN

MELVIN GOLDBERG

Assistant Attorneys General

Of Counsel

*Counsel of Record

MarRTIN MINKOWITZ

General Counsel]

New York State Department

Of Insurance

QUESTIONS PRESENTED

Did the Department of Transportation heed this

Court’s direction that it keep safety concerns pre-

eminent, overriding and paramount when it recon-

siders its passive restraint motor vehicle safety

standard?

Did the Department of Transportation act arbitrarily,

capriciously, or illegally by allowing automobile

manufacturers the choice of installing airbags or

detachable or nondetachable automatic seat belts to

comply with the re-promulgated passive restraint

motor vehicle safety standard?

ii

LIST OF PARTIES BELOW

The State of New York, Robert Abrams, Attorney General

of the State of New York, James P. Corcoran, Superintendent

of Insurance of the State of New York, the New York State

Department of Insurance, State Farm Mutual Automobile In-

surance Company, The National Association of Independent

Insurers, Kent Mason, Patricia Warren, The American In-

surance Association, Nationwide Mutual Insuramce Company

and the National Association of Insurance Commiissioners were

petitioners in the proceedings below. Elizabeth Dole, Secretary

of the Department of Transportation, the Department of

Transportation, Diane Steed, Administrator of the National

Highway Traffic Safety Administration, and tthe National

Highway Traffic Safety Administration were respomdents below.

TABLE OF CONTENTS

QUESTIONS PRESENTED ......

eG 2 50):

TABLE OF CONTENTS..........

TABLE OF AUTHORITIES.......

6 8 6) ae

a

STATUTES INVOLVED..........

STATEMENT OF THE CASE ............

rs ae nh a6 ka 6 a3 x's

EE S\ SSE ee

REASONS FOR GRANTING THE WRIT.......

I. THOUSANDS OF ADDITIONAL DEATHS

AND TENS OF THOUSANDS OF

ADDITIONAL INJURIES ARE AT STAKE .

II. THE MAJORITY COMPLETELY FAILED

EVEN TO CONSIDER WHETHER DOT

HAD PROPERLY KEPT SAFETY

CONCERNS PRE-EMINENT,

OVERRIDING AND PARAMOUNT WHEN

IT ADOPTED ITS 1984 STANDARD 208...

The Majority Failed to Determine Whether

DOT Had Kept Safety Paramount In

Refusing To Require Airbags ..............

The Majority Also Ignored The Safety-First

Mandate In Reviewing DOT’s Decision Not

To Prohibit Detachable Automatic Belts ....

13

III.

IV.

iv

The Majority Failed To Determine Whether

DOT's Failure To Require Airbags In

Tandem With Nondetachable Belts Was

Consonant With The Overriding Weight To

Be Accorded Safety.................. ya

THE MAJORITY ERRED IN FINDING

DOT’S CONCLUSIONS, WHICH WERE

CLEARLY CONTRARY TO THE WEIGHT

OF EVIDENCE IN THE RECORD, TO BE

REASONABLE AND RATIONAL..........

The Majority Mischaracterized DOT's Cost-

Effectiveness Rationale As A Simple Finding

That Airbags’ Costs Were Too High........

The Majority Affirmed DOT’s One-Sided

Reliance On Unfounded Public Acceptability

Concerns Regarding Airbags...............

The Majority Failed To Do A Searching

Review Of DOT’s Reasons For Continuing

To Permit Detachable Automatic Belts......

THE MAJORITY FOUND THAT DOT

HAD CONSIDERED THE ALTERNATIVE

OF REQUIRING BOTH AIRBAGS AND

NONDETACHABLE AUTOMATIC

SEATBELTS, AND HAD GIVEN

RATIONAL REASONS FOR «EJECTING

THAT ALTERNATIVE, WHEN IN FACT

DOT DID NOT CONSIDER THIS

ALTERNATIVE AT ALL...... tee on

PEE aoa s ve acw ened cae Ree eke nem wp

Page

16

17

TABLE OF AUTHORITIES

Cases: Page

Bureau of Alcohol, Tobacco and Firearms v.

Pade, Gee Oi OO CR 6b odo be shaewkesuns 8

Center for Auto Safety v. Peck, 751 F.2d 1336

Cais Ss NE «kano a ons ca eee eas 13

Motor Vehicle Manufacturers Association v. State

Farm Mutual Automobile Insurance Co., 463

Dp eee ws ohne Cia ea eee eeeee ea Passim

Pacific Legal Foundation v. DOT, 593 F.2d 1338

(D.C. Cir.), cert. denied, 444 U.S. 830 (1979) . 4

SEC v. Chenery Corp., 332 U.S. 194 (1947) ..... 17

U.S. v. General Motors, 518 F.2d 420 (D.C. Cir.

RPE is-Sds sv anecheceselnea tse 13

U.S. v. General Motors, 561 F.2d 923 (D.C. Cir.

BOE ED i vvcdeecd ceatdntoute ee 13

Statutes:

Administrative Procedure Act, ch. 324, 60 Stat.

237, Section 10(e), 5 U.S.C. § 706 ........... 2

National Traffic and Motor Vehicle Safety Act

of 1966, Pub. L. No. 93-492, 88 Stat. 1470.... Passim

Section 102, 15 U.S.C. § 1901 ............. 13

Section 103, 15 U.S.C. § 1902 ............ 13

bo

Section IGG, 15 U.S.C. § 1506. «occ ccae:

bo

HUSL (M....2....2 So

vi

Administrative Regulations:

49 C.F.R. § 571.208 ..

Administrative Orders and Decisions:

42 Fed. Reg. 34,298 (1977) ..

46 Fed. Reg. 53,419 (1981)

48 Fed. Reg. 39,908 (1983)

49 Fed. Reg. 20,460 (1984)

49 Fed. Reg. 28,962 (1984)

51 Fed. Reg. 37,028 (1986)

Miscellaneous:

Final Regulatory Impact Analysis, Amendment

to Federal Motor Vehicle Safety Standard 208

Passenger Car Front Seat ee Protection

(July 11, 1984).... en es

Page

10

Passim

IN THE

Supreme Court of the United States

Octroser Term, 1986

THE STATE OF NEW YORK; ROBERT ABRAMS, AT-

TORNEY GENERAL OF THE STATE OF NEW YORK;

JAMES P. CORCORAN, SUPERINTENDENT OF IN-

SURANCE OF THE STATE OF NEW YORK; and the

NEW YORK STATE DEPARTMENT OF INSURANCE,

Petitioners.

vs.

ELIZABETH DOLE, SECRETARY OF THE DEPART-

MENT OF TRANSPORTATION; THE DEPARTMENT

OF TRANSPORTATION; DIANE STEED, AD-

MINISTRATOR OF THE NATIONAL HIGHWAY

TRAFFIC SAFETY ADMINISTRATION; and the

NATIONAL HIGHWAY TRAFFIC SAFETY

ADMINISTRATION,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

The petitioners, the State of New York, Robert Abrams, At-

torney General of the State of New York, James P. Corcoran,

Superintendent of Insurance of the State of New York, and the

New York State Department of Insurance (referred to collec-

tively as “New York”) request that a writ of certiorari issue to

review the judgment and opinion of the United States Court

of Appeals for the District of Columbia Circuit, entered in this

proceeding on September 18, 1986.

Se

OPINION BELOW

The majority opinion of the Court of Appeals for the District

of Columbia Circuit is reported at 802 F.2d 474 and is reprinted

in the appendix hereto, App. la, infra. The opinion of Circuit

Judge Mikva, concurring in part and dissenting in part, is

reported at 802 F.2d 489 and is reprinted in the appendix, App.

32a.

JURISDICTION

Invoking jurisdiction under 15 U.S.C § 1394(a)(1), the peti-

tioners brought suit directly in the Circuit Court of Appeals for

the District of Columbia. On September 18, 1986, the Court

of Appeals entered a judgment and an opinion denying peti-

tioners’ challenge to the Department of Transportation's

(“DOT”) automatic restraint regulations. See App. la. No peti-

tion for rehearing was sought.

The jurisdiction of this Court to review the judgment of the

Court of Appeals is invoked under 28 U.S.C. § 1254(1), as fur-

ther provided in 15 U.S.C. § 1394(a)(4).

STATUTES INVOLVED

The pertinent provisions of the Administrative Procedure Act.

5 U.S.C. § 706 and the National Traffic and Motor Vehicle Safe-

ty Act of 1966, 15 U.S.C. §§ 1381 et seq. (“Safety Act”), are

set forth at App. 237a.

STATEMENT OF THE CASE

Petitioners urge this Court to remedy once again the United

States Department of Transportation's (“DOT”) unlawful ex-

ercise of its regulatory authority over motor vehicle safety. As

it did in Motor Vehicle Manufacturers Association v. State Farm

Mutual Automobile Insurance Co., 463 U.S. 29 (1983) (“State

Farm”), this Court should redirect DOT's attention to its pre-

eminent regulatory function — protection of life and limb on

the roads — and away from its excessive reliance on what the

automobile industry finds expedient.

Without review by this Court, DOT will implement its len-

ient 1984 passive restraint standard. Despite its mandate to save

lives, DOT adopted, and the Court below affirmed, this lax

standard in the face of DOT’s own findings that other reasonable

and practical alternatives would result in thousands of fewer

highway deaths each year.

This Court in State Farm emphatically advised DOT that

it should reconsider its arbitrary 1981 rescission of its passive

restraint standard. DOT, the Court found, had failed adequate-

ly to explain why, if one passive restraint technology was found

to be far less effective than had been thought earlier, that other

more effective passive restraint technologies should not be re-

quired. DOT was specifically directed by this Court to keep

safety concerns paramount when performing this reconsi-

deration.

DOT has now ignored or rejected this Court's clear admoni-

tion. Finding detachable automatic seatbelts to be the least ef-

fective passive restraint technology, it nevertheless refused to

require technologies, such as airbags, it found to be superior.

In fact, it failed altogether to consider requiring what it found

to be the safest alternative — airbags in tandem with seatbelts.

Background

This case presents another chapter in, and must be considered

in the context of, what this Court called in State Farm, the

“complex and convoluted history” of the passive restraint re-

quirement in Motor Vehicle Safety Standard 208, 49 C.F.R.

§ 571.208.

In State Farm, this Court remanded to DOT a previous in-

carnation of that safety standard because of DOT’s inadequate

consideration of, inter alia, the safest passive restraint mech-

anism, i.e., airbags. As this Court explained, Congress enacted

the Safety Act in response to the consensus that the loss of life

on our highways was unacceptably high, and that part of the

solution to this problem could be found in improving the design

and safety features of motor vehicles. The Safety Act directs

the Secretary of Transportation or her delegate to issue motor

vehicle safety standards that shall meet the need for motor vehi-

cle safety. State Farm at 33. This Court observed that, in its

original 1967 form, Motor Vehicle Safety Standard 208 merely

required the installation of seatbelts on all new automobiles.

However,

[i]t soon became apparent that the level of seatbelt

use was too low to reduce traffic injuries to an ac-

ceptable level. The Department [of Transportation]

therefore began consideration of “passive occupant

restraint systems” — devices that do not depend for

their effectiveness upon any action taken by the oc-

cupant except that necessary to operate the vehicle.

Two types of automatic crash protection emerged:

automatic seatbelts and airbags.

State Farm at 34-35.

Despite passive restraints’ extraordinary potential to save lives

and prevent serious injuries, the regulatory history of the require-

ment was anything but smooth. This Court recounted the on-

again/off-again history of the requirement during the 1970’s in

great detail in State Farm at pages 34-37. Finally, as the Court

noted, in 1977 DOT Secretary Adams issued a néw passive

restraint regulation, known as Modified Standard 208, which re-

quired the phasing in of passive restraints in all cars, starting with

large cars in model year 1982 and extending to all other cars by

model year 1984. Finding that both airbags and automatic

seatbelts would provide approximately the same protection, the

1977 Modified Standard 208 allowed automobile manufacturers

to choose either. The Modified Standard was upheld by the Court

of Appeals in Pacific Legal Foundation v. DOT, 593 F.2d 1338

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

In 1981, however, DOT rescinded the Modified Standard 208

passive restraint requirement. Notice 25, 46 Fed. Reg. 53,419

(October 29, 1981). DOT determined that manufacturers had

decided to install detachable automatic seatbelts in the over-

whelming majority of all new cars in order to comply with the

passive restraint requirement. State Farm at 38-39. Whereas

in 1977 DOT had found that the particular technology chosen

by the manufacturers to comply with the standard would not

significantly affect the number of deaths and serious injuries

that would be prevented, by 1981 DOT found that it could not

predict that detachable automatic seatbelts would prevent even

a few more deaths or serious injuries than would be prevented

merely by continuing to equip all cars with manual seatbelts.

Yet the cost of requiring passive restraints, DOT then estimated,

would be about $1 billion annually. However, instead of pro-

hibiting the use of detachable automatic belts altogether, DOT

simply rescinded the entire passive restraint rule.

Ruling on challenges to this rescission, the D.C. Circuit Court

of Appeals found that DOT had inadequatedly considered the

possibility of requiring manufacturers to install nondetachable,

rather than detachable, automatic seatbelts. It also found that

DOT had failed to give any consideration at all to requiring

manufacturers to install airbags to comply with the standard.

Finally, it found that DOT had insufficient evidence to con-

clude that installation of detachable automatic seatbelts would

not yield significant increases in the prevention of deaths and

serious injuries.

This Court reviewed that decision in 1983, and found that

DOT had failed to supply the requisite reasoned analysis to

justify its rescission. In particular, it unanimously held that DOT

had failed entirely to consider requiring airbags, and had in-

adequately considered requiring nondetachable automatic

seatbelts. A 5-4 majority also found that DOT had failed to con-

sider adequately the “inertia factor” of detachable automatic

belts — once attached, such automatic belts remain attached un-

til an affirmative action is taken —in finding no likely increase

in usage of these belts. The Court directed that the case be

remanded back to DOT for it to “consider the matter further

or adhere to or amend Standard 208 along lines which its

analysis supports.” State Farm at 34.

The present case

DOT did consider the matter further. It issued a notice of

proposed rulemaking in 1983, received substantial comments

from numerous affected parties, and held a number of public

hearings. 48 Fed. Reg. 39,908 (1983). It then issued a sup-

plemental notice of proposed rulemaking to gather additional

comments. 49 Fed. Reg. 20,460 (1984). Using the extensive

evidence it had gathered in the rulemaking process, it prepared

a Final Regulatory Impact Analysis (“FRIA”) and issued its final

rule, 1984 Standard 208. 49 Fed. Reg. 28,962 (1984), App. 49 a.

The 1984 Standard 208 essentially reinstates the substantive

requirements of the 1977 Modified Standard 208 which DOT

had rescinded in 1981. Like the 1977 Modified Standard, the

1984 Standard 208 requires the phasing in of passive restraints

in new automobiles, over a period of several years, starting with

10% of model year 1987 cars and gradually increasing to 100%

of model year 1990 cars. Further, like the 1977 Standard, the

1984 Standard 208 permits manufacturers to choose which

passive restraint technology—airbags, detachable or

nondetachable automatic seatbelts or other, as yet unperfected,

technologies — to install to meet the requirement.

The 1984 Standard 208 contained one salient feature not

found in the 1977 Modified Standard 208 — the so-called “trap

door”. If states with combined populations representing 2/3 of

the total United States population adopt mandatory seatbelt use

laws (“MULs”) meeting DOT-established minimum criteria by

April 1989, then the requirements for passive restraints in the

1984 Standard 208 would be automatically rescinded.

DOT in 1984 provided manufacturers the same freedom to

choose which passive restraint technology to install as it had

in 1977. In 1977, that choice seemed of little relevance, because,

as this Court noted in State Farm at 34 and 47, at that time

each passive restraint technology was viewed as essentially

equivalent in saving lives and preventing serious injuries. Yet,

in 1984, DOT found, based on an extensive record, that air-

bags were a far superior means of preventing deaths and serious

injuries than automatic seatbelts, of either the detachable or

nondetachable variety. DOT also found in 1984, unlike in earlier

proceedings, that between automatic belt designs, the non-

detachable variety were likely to prevent more deaths and

serious injuries.

In the face of these revised findings, DOT advanced a varie-

ty of reasons why it would nevertheless retain the manufacturers’

perogatives. Further, DOT totally failed to consider requiring

what it found to be the safest reasonable alternative — airbags

together with nondetachable lap and shoulder seatbelts. By fail-

ing to consider requiring this reasonable alternative, DOT ob-

viously also failed to explain why it did not adopt it.

New York challenged DOT’s failure: 1) to require airbags;

2) to prohibit the use of detachable automatic seatbelts; and

3) to require the acknowledged safest reasonable alternative —

airbags plus nondetachable automatic seatbelts. New York also

joined in a challenge of the trap door provision brought by

numerous other parties.!

In reviewing these challenges to DOT’s 1984 Standard 208,

the Court of Appeals held that the trap door issue was not yet

ripe because it appeared singularly unlikely that the trap door

would ever open (i.e., rescission would likely never occur). State

Farm Mutual Automobile Insurance Company v. Dole, 802

F.2d at 481, App. 16a. (D.C. Cir. 1986) (“State Farm v. Dole”).

New York does not seek review of this part of the Court of Ap-

peals decision.

New York’s challenge to the substantive content of the 1984

Standard 208 was held ripe because the phasing in of passive

restraints was to begin in September, 1986, and, the Court of

Appeals reasoned

[I]f New York is correct in asserting that the Final

Rule [1984 Standard 208] is more lenient (and

therefore less promotive of automobile safety) than

These parties included State Farm Mutual Automobile Insurance Com-

pany, The National Association of Independent Insurers, The American In-

surance Association, Nationwide Mutual Insurance Company, and the Na-

tional Association of Insurance Commissioners.

is justified by the record, then many people, including

New York citizens, may be adversely affected in the

most direct way [i.e. they will die or suffer serious

injury] by the Secretary’s failure to require greater

protection.

State Farm v. Dole, 802 F.2d at 485, App. 24a. On the merits

of New York’s challenge to 1984 Standard 208, however, a 2-1

majority of the Court of Appeals rejected each of New York’s

challenges.

New York submits that the majority of the Court of Appeals

failed to review properly DOT’s reasoning, and in so doing

became a “rubber stamp” for the agency and let deference for

the agency’s judgments slip into “judicial inertia”. See Bureau

of Alcohol, Tobacco and Firearms v. FLRA, 469 U.S.89, 97

(1983). Had the Court of Appeals properly reviewed DOT’s deci-

sion, the record DOT had amassed in its proceeding after State

Farm would have led the court to require that DOT adopt a

more stringent Standard 208. In that event, thousands of deaths

and injuries would be prevented.

In essence, the Court of Appeals majority held that there are

rational connections between facts found by the DOT and the

choice it made in its decision, when, in fact, no such rational

connections exist. It also found that DOT had conducted a

reasoned analysis of an alternative which in fact DOT had not

addressed at all. Further, the majority failed entirely to review

DOT’s decision in light of the finding by this Court in State

Farm (at 55) that the Safety Act mandates that safety is to be

the pre-eminent, overriding and paramount factor in adopting

motor vehicle safety standards. In the face of a record that clear-

ly demonstrates that DOT placed cost and public acceptabili-

ty considerations above that of safety, this failure by the court

below is a most glaring error. Finally, the majority misinter-

preted the mandate which the Safety Act imposes on DOT,

namely, to adopt standards that meet the need for motor vehi-

cle safety, and thereby erroneously concluded that DOT had

fulfilled that mandate.

REASONS FOR GRANTING THE WRIT

I. THOUSANDS OF ADDITIONAL DEATHS AND

TENS OF THOUSANDS OF ADDITIONAL

SERIOUS INJURIES ARE AT STAKE.

The sheer magnitude of the lives lost as a result of the leniency

of the 1984 Standard 208 makes it of critical importance that

this Court grant certiorari.

DOT estimated in 1984 that requiring airbags to be install-

ed in new automobiles instead of requiring no passive restraints

would result in between 3,780 and 9,110 fewer highway deaths

each year.” If, instead of airbags, all cars were equipped with

automatic seatbelts, DOT estimated between 520 and 7,510

fewer deaths each year depending on the usage rate of the

automatic belts (estimated by DOT at anywhere from 20 to

70%) and their effectiveness.* Thus, DOT found that airbags

would likely save substantially more lives, perhaps 2,500 or more

per year, or over 50% more than automatic seatbelts.

DOT’s 1984 findings regarding serious injuries prevented —

those injuries with debilitating, disabling, painful and expen-

sive consequences — are just as compelling in favor of airbags.

Airbags, according to DOT, would prevent from 73,660 to

155,030 such injuries each year.* Automatic seatbelts, on the

other hand, were estimated to prevent somewhere between

? The actual number of deaths prevented will depend on how effective air-

bags turn out to be and whether people continue to use manual belts at all

with airbag equipped cars or at the same rate (12.5%) as they were using

manual belts in 1984. The mid-point estimate for lives saved by airbags, assum-

ing that the current level of manual seat belt use (12.5%) continued, was 6,670

per year. See Table 5 at, 49 Fed. Reg. 28,986, App. 146a. and Table VI-6

of the FRIA.

> The mid-point estimate for automatic seat belts was 4,060 fewer deaths

each year, assuming 50% usage of the automatic belts. See Table 5, 49 Fed.

Reg. 28,986, App. 146a. and Tabie VI-6 of the FRIA.

4

The mid-point estimate, assuming then current levels of seatbelt use

(12.5%) and mid-range effectiveness for airbags, was 117,780 serious injuries

prevented each year.

10

8,740 to 124,570 serious injuries each year, depending on the

usage rate for automatic belts (estimated at anywhere from 20

to 70%) and their effectiveness .°

These findings sharply contrast with DOT’s 1970’s findings,

as noted by this Court in State Farm at 35 and 47, that both

technologies appeared essentially equivalient in saving lives and

preventing injuries. In 1977, for example, then DOT Secretary

Adams found that automatic belts would have a usage rate of

at least 60%, and would provide protection essentially

equivalent to that of airbags. See 42 Fed. Reg. 34,298. In con-

trast, DOT Secretary Dole found in 1984 that the usage rate

for automatic belts would be in the range of 20-70%. In sum,

installation of automatic belts would be unlikely to save as many

lives or prevent as many injuries as woulld an airbags require-

meut. Despite this finding, Secretary Dole refused to require

manufacturers to install airbags.

Moreover, in addition to not requiring airbags, Secretary Dole

also continued the use of detachable automatic belts as an op-

tion for meeting the passive restraint requirement. While she

explicitly rejected setting different usage rate ranges for the two

types of automatic seatbelts, she did fimd that

The agency believes that some increment of usage

should be imputed to nondetachable belts, since some

effort would be required to deactivate the system.

However, because the information available does not

permit such precision, separate usage bounds for

detachable and nondetachable belts are not estimated.

Usage rates for future nondetachable automatic belt

systems would probably be above usage rates for

future detachable systems, with both rates falling

within the estimated 20-70% usage range.

* The mid-point estimate was 68,230 serious injuries prevented, assuming

mid-range effectiveness and 50% usage rate of the automatic belts. See Table

5, 49 Fed. Reg. 28,986, App. 146a. and VI-6 of the FRIA.

11

FRIA at V-44. See also 49 Fed. Reg. 28,984 and 28,996, App.

138a, 182a.

Thus, while DOT did not quantify the differences between

detachable and nondetachable automatic seatbelts in terms of

the lives saved and serious injuries prevented, it clearly found

that usage would be higher for nondetachables, thereby preven-

ting significantly more deaths and serious injuries.

Finally, Secretary Dole failed to require what DOT found

to be the most effective system—an airbag plus a lap and

shoulder belt. 49 Fed. Reg. 28,986, App. 145a. This, of course,

is equivalent to the alternative of requiring an airbag and a

nondetachable automatic belt in all new cars. The Secretary

failed to even consider adopting this option, let alone give ra-

tional reasons to reject it. Obviously, then, she did not make

findings to show quantitatively how many lives would be sav-

ed by this option. Nevertheless, close examination of the record

reveals what is intuitively obvious: requiring airbags plus

nondetachable belts is a much safer alternative than the one

DOT adopted.°

In summary, DOT’s decisions, affirmed by the majority of

the court below, will result in thousands of additional highway

deaths, and tens of thousands of serious injuries each year com-

pared to the number of lives that could have been saved and

injuries prevented had the Secretary selected any one of a

number of reasonable alternatives.

With such extreme consequences flowing from DOT’s deci-

sion, it is critical that this Court fully review whether the court

below properly found that DOT’s lenient 1984 standard 208 was

* DOT found that as seatbelt usage increased with airbag-equipped cars,

the number of lives saved rapidly increased. Airbags alone would save 3,780

to 8,630 lives per year. Airbags with 12.5% lap and shoulder belt usage would

save 4,570 to 9,110 lives each year. See Table 5, 49 Fed. Reg. 28,986, App.

146a. DOT estimated that if belt usage with airbag-equipped cars increased

as the result of MULs, 20,000 additional lives would be saved in the first 10

years. See FRIA at VI-28.

12

lawful and in accord with the record made by DOT subsequent

to the State Farm decision.

Il. THE MAJORITY COMPLETELY FAILED

EVEN TO CONSIDER WHETHER DOT HAD

PROPERLY KEPT SAFET¥ CONCERNS PRE-

EMINENT, OVERRIDING AND PARAMOUNT

WHEN IT ADOPTED ITS 1984 STANDARD

208.

This Court found in State Farm at 55,

. . . Congress intended safety to be the pre-eminent

factor under the Motor Vehicle Safety Act:

The Committee intends that safety shall be the over-

riding consideration in the issuance of standards under

this bill . . . S. Rep. No. 1301, at 6, U.S. Code Cong.

and Admin. News 1966, p. 2715 . . . Motor vehicle

safety is the paramount purpose of this bill and each

standard must be related thereto .. . H. Rep. No.

1776 at 16. (Emphasis supplied.)

Although this Court had clearly directed DOT to give safety

an overriding weight in adopting a standard, DOT again fail-

ed to do so. Naturally, safety is not the only factor that DOT

should consider. Feasibility, cost, adequate leadtime, and public

acceptability must all be considered, but must be subordinate

to safety. DOT explicitly found other safer alternatives were

practical, feasible, reasonable in cost and generally acceptable

to the public. See 49 Fed. Reg. 28,996, 28,988, 29,003, App.

182a, 152a, 208a. But, because DOT did not see those alter-

natives as the most cost-effective or because those alternatives

might have engendered greater public acceptability problems

than other, less effective alternatives, DOT adopted a weakened

standard.

Despite New York’s emphasis on the safety-first requirement,

and the dissent’s specific reference to this Court’s admonition

in the State Farm decision, the majority of the Court of Ap-

peals found, without even a mention of the requirement, that

13

there was nothing arbitrary, capricious or unlawful about

DOT’s adoption of its lenient passive restraint standard.

Moreover, the Safety Act requires that the DOT or its delegate

adopt motor vehicle safety standards that “meet the need for

motor vehicle safety”. 15 U.S.C. §§ 1391(2) and 1392(a). “Motor

vehicle safety” is defined by the Safety Act to mean

. . . the performance of motor vehicles or motor vehi-

cle equipment in such a manner that the public is pro-

tected against. . . . unreasonable risk of death or in-

jury to persons in the event accidents do occur.

§ 1391(1) (Emphasis supplied.)

The Court of Appeals has on several occasions explained what

constitutes unreasonable risk under the Safety Act. See U.S. v.

General Motors, 518 F.2d 420 (D.C. Cir. 1975), U.S. v. General

Motors 561 F.2d 923 (D.C. Cir. 1977) and Center for Auto Safe-

ty v. Peck, 751 F.2d 1336 (D.C. Cir. 1985).

In those cases, the Court of Appeals essentially found that

risk is unreasonable if it can be eliminated by effective means

that are feasible and the costs are reasonable. In other words,

safety, while not the only consideration, is paramount and

overriding.

The Majority Failed To Determine Whether

DOT Had Kept Safety Paramount In Refusing

To Require Airbags.

The overly lenient 1984 Standard 208 grants automobile

manufacturers carte blanche to choose between installing air-

bags, or detachable or nondetachable automatic seatbelts to

comply with the standard.

However, the safety equivalency between airbags and

automatic seatbelts that DOT nad found to exist and which had

formed the basis for offering manufacturers the choice of

technology in the 1977 Standard 208, was found in 1984, after

14

thorough study, not to exist. Therefore, a change in circum-

stance — the newly found ineffectiveness of automatic belts com-

pared to airbags— required DOT to fully explain why it chose

again to allow the manufacturers to choose between air bags

and automatic belts, as it had in 1977. State Farm at 57.

The Court of Appeals held that DOT had properly looked

at the high cost and alleged public acceptability problems of

airbags in deciding not to require them. 802 F.2d 487-489, App.

28a-30a. But no one ever asserted in this case that DOT should

not consider cost and public acceptability in making its deter-

mir tion. Rather, the central issue was the weight to be afforded

to those considerations.

DOT, as the dissent below noted, had explicitly found the

cost of airbags to be reasonable, and the technology to be cost-

effective. 49 Fed. Reg. 28,996, 28,963, 28,991, App. 182a, 56a,

164a. Similarly, DOT had found that airbags did not suffer un-

manageable public acceptability problems. 49 Fed. Reg. 28,988,

29,001 App. 152a, 202a. Once such threshold findings had been

made, the superiority of airbags should have dictated, conso-

nant with the safety-first standard, that they be required.

By affirming DOT's decision, the majority of the court below

determined that a safety device which is practical, the most ef-

fective in saving lives, cost- effective, reasonable in cost, and

which enjoys considerable public acceptance need not be re-

quired if it is not the cheapest safety technology or if there are

some unfounded public acceptability concerns. Thus watered

down, safety becomes but one of many factors to be considered,

with no special weight.

In insisting that DOT did consider safety when it refused to

require airbags, 802 F.2d 488, App. 29a, the majority missed

the point. See dissent at 802 F.2d 496, App. 43-45a. Obviously

DOT had considered safety and. indeed, had specifically found

that airbags were superior to automatic seatbelts, a finding on

which New York relied throughout. 49 Fed. Reg. 28,963 and

29,000, App. 56a, 197a-198a. The issue which the majority of

15

the court below refused to address, even though petitioners rais-

ed it repeatedly, was DOT's failure to give overriding, pre-

eminent and paramount weight to the safety advantages of

airbags.

The Majority Also Ignored The Safety-First Mandate

In Reviewing DOT's Decision Not To Prohibit

Detachable Automatic Belts.

The majority also affirmed DOT's failure to prohibit the use

of detachable auton atic seatbelts.

DOT had found this type of automatic belt to be the least

effective passive restraint techrfology in saving lives and preven-

ting serious injuries. DOT had also found that the alternatives

to detachable belts— nondetachable automatic seatbelts and

airbags —- were reasonable in cost. In fact, it found that the cost

of detachable and nondetachable automatic belts was similar.

49 Fed. Reg. 28,989, App. 158a. Moreover, DOT had found

nondetachable automatic belts to be considerably safer than

detachable belts because of their greater expected usage rate.

See 49 Fed. Reg. 28,996 and 28,984, App. 182a, 138a, and FRIA

V-44.

Despite these lesser safety benefits, the majority of the Court

of Appeals nevertheless accepted DOT's reasons for not pro-

hibiting detachable belts. Pointing to DOT's arguments that

nondetachable belts were the most coercive passive restraint and

that requiring them would mean the demise of the center front

seat, the majority found that these considerations outweighed

any safety deficiencies of the detachable belts.

Once again, the majority missed a very obvious point —

eliminating the alternative of det»chable belts does not, in itself,

mean that nondetachable belts are the only alternative. This

Court made it very plain in State Farm that if detachable belts

are not adequate, then airbags or nondetachables could be us-

ed. State Farm at 47 and 55. Thus the undesirable consequences

of prohibiting detachable belts presumed by the majority of the

Court of Appeals can be obviated by giving people a choice

between nondetachable belts and airbags. Also, cars with center

seats could have airbags instead of automatic belts. Indeed, as

New York made clear, DOT could have easily eliminated the

center seat issue altogether simply by allowing detachable belts

for the minority of cars now equipped with a center seat. Cars

without such a seat would have to have airbags or nondetachable

belts. The majority of the Court of Appeals recognized this argu-

ment, but simply opined, without explanation, that rejection

of this and other solutions to the center seat problem was not

arbitrary or capricious. 802 F.2d 487, App. 27a-28a.

Similarly, the majority of the Court of Appeals found the coer-

civeness of nondetachable belts a valid reason to endorse DOT’s

acceptance of detachable belts. The court failed to consider that

a consumer choice of air bags or nondetachable belts may well

decrease public acceptability concerns with each. DOT itself

gave this rationale for offering consumers a choice of three

technologies. 49 Fed. Reg. 28,997, App. 185a. The court also

ignored, as fully explained below, DOT's characterization of

these public acceptability problems of nondetachable belts as

“primarily speculation”. 49 Fed. Reg. 29,003, App. 208a.

The Majority Failed To Determine Whether DOT's

Failure To Require Airbags In Tandem With

Nondetachable Belts Was Consonant With The Over-

riding Weight To Be Accorded Safety.

Finally, the majority of the Court of Appeals affirmed DOT's

sub silentio decision not to require what DOT itself found to

be the safest alternative — airbags with a three point seatbelt

(i.e. a nondetachable belt). After finding, on the thinnest of

evidence, that DOT did consider this alternative, the majority

then found that DOT did not act arbitrarily or capriciously in

rejecting this alternative. The majority finds that DOT's reasons

for not requiring either airbags or nondetachable belts are equal-

ly germane to not requiring both in tandem. The majority never

analyzed whether the added safety which would result if the

technologies were required in tandem, might outweigh the

negative factors DOT identified with regard to requiring either

17

one of the technologies alone. Further, the majority never con-

sidered that some presumed public acceptability problems, such

as the unfounded fears that airbags will not work when need-

ed, are reduced or eliminated if both technologies are used in

tandem.

In summary, the majority of the Court of Appeals rejected

all arguments by New York — and the dissent — that this Court

has specifically directed DOT to place safety above all other

considerations in adopting safety standards. The total failure

to apply this standard, which is firmly established by this Court

and based on the clear legislative history of the Safety Act, was

a significant error which will result in thousands of deaths and

serious injuries each year.

Ill. THE MAJORITY ERRED IN FINDING DOT'S

CONCLUSIONS, WHICH WERE CLEARLY

CONTRARY TO THE WEIGHT OF EVIDENCE

IN THE RECORD, TO BE REASONABLE AND

RATIONAL.

The Court of Appeals found DOT's conclusions to be

reasonable, rational and supported by the weight of the evidence

in the record, when in fact just the opposite was the case.

The Majority Mischaracterized DOT's Cost-

Effectiveness Rationale As A Simple Finding That Air-

bags’ Costs Were Too High.

Although acknowledging that DOT had concluded that air-

bags prevented more deaths and serious injuries than automatic

seatbelts, the majority accepted DOT's reasons for not requir-

ing them.

Significantly, the court misstates DOT's own explanations as

to why it did not require airbags. DOT's decision must stand

or fall on the reasons it used to explain its actions, not those

presented by DOT’s counsel, or created by the Court of Ap-

peuls. See State Farm at 50, citing SFC v. Chenery, 332 U.S.

194 (1947).

18

The court states that DOT found air bags to be quite

expensive — $320 initially and $800 to replace once deployed.

Noting that this Court had held in State Farm that costs are

to be considered, the majority then states

In light of these cost estimates, the Secretary conclud-

ed that the safety benefits of airbags would not be

worth their high cost. State Farm v. Dole at 488, App.

29a.

To the contrary, DOT found the cost of airbags to be reasonable,

well within the range of what people are willing to pay for them,

and cost effective. 49 Fed. Reg. 28,996, 28,988, 28,990, App.

182a, 152a, 159a. In fact, DOT inserted incentives in its new

standard 208 ‘to encourage the installation of airbags by

manufacturers. 49 Fed. Reg. 28,963, 29,000, App. 56a,

197a-198a.

DOT’s reasons for not requiring airbags are more complex

than those cited by the Court of Appeals. At 49 Fed. Reg. 29000

to 29001, App. 199a, under the heading ”Costs” DOT does recite

that airbags will cost an additional $320 above the cost of

manual belts and that replacement cost for the air bags will

be $800. But it then goes on to say

On the other hand, automatic belts would only add

$40 for the equipment, $11 in increased f:el costs and

would not adversely affect physical damage and com-

prehensive insurance premiums. Thus, although air-

bags may provide greater safety benefits, when used

with belts, and potentially larger insurance premium

reductions than automatic belts, they are unlikely to

be as cost effective. (Emphasis supplied.)

Thus, high cost, per se, was not the issue— rather it was DOT’s

finding that airbags are less cost-effective than automatic

seatbelts.

DOT’s rationale and the majority’s silent acceptance of it has

two flaws. First, nothing in the record supports DOT’s conclu-

sion that airbags are likely to be less cost-effective than automatic

eT

*Setay.

:

19

belts. It certainly does not follow that simply because airbags

cost more than automatic belts, they are therefore less cost ef-

fective, as DOT seems to imply at 49 Fed. Reg. 29001, App.

199a. A greater saving of lives and prevention of serious injuries

could more than make up for the higher cost of airbags.

The closest that DOT comes to supporting a finding that

automatic belts are more cost-effective than air bags is at 49

Fed. Reg. 28,997, App. 184a-185a, and in the FRIA at Chapter

XIII. Using insurance premium reductions alone as estimates

of benefits, DOT concludes that airbags have a net cost (i.e.

lifetime cost of airbags minus lifetime insurance premimum

reductions) of $206 to $288. Automatic belts, depending on their

usage rate, have a net cost of between $44 and minus $93 (i.e.

a net benefit of $93)’. But DOT is most careful (at 49 Fed. Reg.

28, 996, App. 184a) not to read too much into this net benefit

analysis. They state

The net result of any calculations will only provide

information on measurable benefits. They would not

represent the full benefits of reducing fatalities and

injuries because the department cannot measure the

value of human life or a reduced injury. It cannot ade-

quately measure, for example, the value of pain and

suffering or loss of consortium. (Emphasis supplied. )

Despite this caveat, DOT apparently relies heavily on its

cost/benefit analysis in refusing to require airbags.

” DOT never expressed its calculations in terms of cost/benefit ratios. These

ratios are easily calculated, however, from DOT’s cost and benefit findings.

Airbags have a cost/benefit ratio of from 4.79 to 2.30 ($364 divided by $76

to $364 divided by $158) whereas automatic belts range in cost/benefit from

7.28 to .35 ($51 divided by $7 to $51 divided by $144). See Tables 7 and 8,

49 Fed. Reg. 28,987 and 28,989, App. 150a, 156a. The range of cost/benefits

depends on the usage rate of automatic belts and the effectiveness of the two

technologies. The lower the ratio, the more cost effective the technology. Air-

bags, thus, may be more or less cost effective than automatic belts, by DOT’s

figures, depending on the usage rate of the automatic belts and the effectiveness

of the two technologies.

20

Of greater importance than its concededly flawed cost/benefit

analysis, however, is DOT’s highly questionable position that

the alternative of requiring airbags can be rejected because they

are less cost-effective than are automatic belts. DOT never ex-

plained how it determined that a safer, cost-effective (albeit

perhaps not the most cost-effective) alternative may be rejected.

Certainly the Safety Act does not require DOT to require

$30,000 safety systems on each car, no matter how much safe-

ty improvement would result. However, where the cost of a

device is found to be reasonable, where the safety impact is con-

siderable, where the device is cost-effective considering both

safety benefits and costs, the Safety Act does not allow DOT

to reject the option because its cost/benefit ratio is not as good

as a cheaper, less effective system. Such a conclusion could on-

ly result if cost was given equal weight to safety. But, as discussed

in Point II, safety is to be weighted more heavily, a point which

DOT first concedes at 49 Fed. Reg. 28,996, App. 183a. and

then ignores.

The majority also makes much of the fact that airbags cost

$800 to replace and that DOT feared that such a cost would

result in many cars going without replacement airbags. This,

the court found, was a safety concern, not one of cost. 802 F.2d

488, App. 29a. However characterized, DOT recognized that

the problem of non-replacement was not a significant one and

found that only 2% of cars would be without airbags at any

one time. 49 Fed. Reg. 28,984, App. 138a, 139a. That is

because, as DOT explicitly found, airbags do not accidentally

deploy, as the majority of the court below conjectured. Com-

pare 802 F.2d 488, App. 29a., to 49 Fed. Reg. 28,984, App.

138a. Further, the replacement cost in many cases will be pro-

vided by insurance. See 49 Fed. Reg. 28,990 — 28,991, App.

161la-162a.

The availability of airbags was hardly a safety concern for

DOT. The majority below spins this argument out of thin air.

And, in any event, DOT could not rationally have considered

a 2% nonavailability rate for airbags to be more serious than

a 20% —70% usage rate for automatic belts.

21

The majority thus mischaracterized DOT’s cost rationales for

rejecting an airbag requirement. Rather than focusing their at-

tention on DOT’s stated rationale of lower cost-effectiveness,

the majority cites its own rationale— high cost, per se—and

then states that DOT can consider cost.

The majority of the court below should not be allowed to

a) create reasons for DOT that DOT itself did not rely on in

its decision; b) ignore review of DOT’s real reason -—- presum-

ed lower cost-effectiveness of airbags; and c) accept DOT’s

misguided reading of its mandate that it can reject highly

superior technologies because they do not provide as much pro-

tection per dollar as cheaper, less effective alternatives.

The Majority Affirmed DOT’s One-Sided Reliance On

Unfounded Public Acceptability Concerns Regarding

Airbags.

The majority of the court below also pointed to DOT fin-

dings that there are unfounded public concerns about airbags

which, while they can be adequately addressed, must be

recognized as real concerns. As the dissent notes, DOT also

found that among the surveys in the record

Airbags were rated highest on comfort, convenience

and appearance and were perceived to be safer than

other restraint systems by infrequent belt users.

Primary concerns expressed about airbags relate to

reliability, whether they will work when needed or

deploy accidently, and cost. 49 Fed. Reg. 28,988,

App. 152a.

In fact, DOT found that airbags are highly reliable, do work

when needed, do not deploy accidentally, and that the costs

are within the range of what people are willing to pay. 49 Fed.

Reg. 28,984, 28,988 and 28,990, App. 138a, 152a, 159a. As the

dissent explains, the public acceptability record runs both ways

with airbags. DOT may not look only at the negatives and ig-

nore the positive public acceptability considerations of airbags.

22

With a mixed record on the public acceptability of airbags, it

is clear that, at the least, airbags are generally acceptable to

the public. The majority affirms DOT’s decision to let the

limited public acceptability concerns over airbags override their

clear safety advantage.

The Majority Failed To Do A Searching Review of

DOT's Reasons For Continuing To Permit Detachable

Automatic Belts.

The majority of the Court of Appeals also found that DOT

had not acted arbitrarily or illegally in failing to prohibit the

use of detachable automatic belts. They point to the public ac-

ceptability concerns with nondetachable belts and the fact that

requiring them would make the center seat difficult to use.

As noted above, the majority erroneously equated rejecting

detachable automatic belts with requiring nondetachable belts.

See p. 15.

But even assuming that prohibiting detachable belts is the

equivalent of requiring nondetachable belts, the majority er-

roneously states that DOT found the public acceptability pro-

blems with these belts to be persuasive. The majority ignores

DOT’s own conclusions regarding nondetachable belts. At 49

Fed. Reg. 29,003, App. 208a., DOT says

The Department has no new evidence that

nondetachable belts are not an acceptable means for

reducing deaths and injuries. Although there are some

comments in the current docket that some people will

dislike them and may even cut them or otherwise

destroy them, it is primarily speculation; there is no

clear data. Moreover, even if 20 or 30 or even 40 or

50 percent of the people find some method for

defeating the belt, the evidence in the record indicates

that it will still result in a significant reduction in

deaths and injuries for the remainder that do not.

(Emphasis supplied.)

23

And DOT says at 49 Fed. Reg. 29,002, App. 207a,

It could also be argued that the public will not ac-

cept automatic belts because of such problems as their

obtrusiveness and inconvenience. Although an argu-

ment about public acceptability can be made, strong

data on which to base it do not exist.

This is hardly a finding that public acceptability problems

of nondetachable automatic belts are significant enough to

forego their clear advantages. Rather, DOT speculates that

nondetachables are too coercive, and even though concededly

providing superior safety to detachables at no increase in cost,

nevertheless continues to permit detachables.

DOT?’s second rationale cited by the majority is that outlaw-

ing detachable belts would mean the end of center seats. As the

dissent points out, this is not the case. 802 F.2d 495, App. 42a.

The minority of cars with center seats could use airbags, already

perfected, motorized automatic belts which engage when

passengers enter the car, or even detachable belts.

The majority finds that DOT’s failure to set different stan-

dards for cars with center seats, was not arbitrary or capricious.

Strangely, the majority did not explain why a complicating fac-

tor for a minority of the cars sold should be allowed to

downgrade the safety requirements for the majority of cars.*°

* This contrasts with DOT’s recent decision that convertibles need not have

passive restraints at all during the phase-in period, noting that the Safety Act

provides the flexibility to tailor standards to different types of vehicles. See

51 Fed. Reg. 37,028. (October 17, 1986).

24

IV. THE MAJORITY FOUND THAT DOT HAD

CONSIDERED THE ALTERNATIVE OF RE-

QUIRING BOTH AIRBAGS AND NON.

DETACHABLE AUTOMATIC SEATBELTS,

AND HAD GIVEN RATIONAL REASONS FOR

REJECTING THAT ALTERNATIVE, WHEN

IN FACT DOT DID NOT CONSIDER THIS

ALTERNATIVE AT ALL.

Most curious of all of the majority’s conclusions was that DOT

had in fact considered and rationally rejected the alternative

of requiring airbags in tandem with nondetachable belts.

Acknowledging that DOT had an obligation to consider this

practical, technologically feasible option, the majority concedes

that DOT’s treatment on this point was “scarcely a model of

clarity”. 802 F.2d 489, App. 30a. Nevertheless, they find, ap-

parently on the basis of two words in the title to a subsection

of the decision (“Airbags and/or Nondetachable Seatbelts” at

49 Fed. Reg. 29,002, App. 203a), that DOT did consider this

option. The majority opines

had the Secretary intended in this section to address

only the option of requiring airbags or nondetachable

seatbelts, one would think she would have chosen to

entitle this subsection differently than she did.

802 F.2d 489, App. 3la, and holds that

it seems clear to us that this discussion [in this subsec-

tion] was intended to respond both to the argument

that detachable belts should be eliminated as a means

of satisfying the passive restraint requirement and to

the argument that nondetachable belts should be re-

quired in tandem with airbags.

802 F.2d 489, App. 3la.

The majority, in attempting to divine DOT’s intent twists

DOT’s own words beyond recognition. The subsection reads,

in toto,

m ee |

25

Airbags and/or Nondetachable Seatbelts:

The rationals [sic] provided in the preceding sections

for adopting the new rule and for not retaining the

old rule or amending it to require airbags in all cars

essentialy [sic] provides [sic] the basis for the Depart-

ment’s decision not to amend the old rule to require

either airbags or nondetachable belts or just

nondetachable belts; (i.e. would not permit the use

of detachable belts to comply with the automatic pro-

tection requirements). It is also concerned that

nondetachable belts may be too inconvenient and

restrictive resulting in serious adverse public reaction

if required in all cars. (See the discussion on

nondetachable belts in the first part of the “Analysis

of the Alternatives”.) (Emphasis supplied.) 49 Fed.

Reg. 29,002, App. 203a.

Thus, DOT states that this section is about not permitting

the use of detachable belts to comply with the automatic pro-

tection requirement. As DOT notes, it could have accomplish-

ed this either by allowing a choice of airbags or nondetachable

belts, or by requiring non- detachable belts. It chose, then, to

reject this option because of the cost-effectiveness and public

acceptability issues surrounding airbags and its concerns that

nondetachable belts may be too inconvenient or restrictive.

As the dissent notes, there is not a single word in this section

even suggesting the option of requiring both airbags and

nondetachable belts. The use of “and/or” in the title, particularly

when read with the text, means little more than that this sec-

tion was intended to consider an alternative which allows either

airbags or nondetachable belts (but not detachables) to be us-

ed and an alternative which requires nondetachable belts.

The majority again impermissibly creates reasons for the agen-

cy’s action that the agency itself did not provide. State Farm

at 50. Morever, even if the use of ’and/or” in the title signifies

that the agency considered this option, the subsection itself hard-

ly provides a rational basis for rejecting it. It is not at all

26

obvious that even if the safety benefits of each technology alone

do not outweigh their problems, therefore the enhanced safety

benefits of the two technologies in tandem do not outweigh their

combined cost and public acceptability problems. At the very

least, then, DOT must do such a weighing of these factors for

the in-tandem alternative. Obviously they did not, and the ma-

jority holding means that they need not.

This Court should fully review DOT’s failure to adopt or ever

consider the conceded safest alternative — airbags in tandem

with nondetachable belts.

27

CONCLUSION

For the foregoing reasons, petitioners pray that a Writ of Cer-

tiorari issue to review the judgment of the United States Court

of Appeals for the District of Columbia Circuit in this case.

Respectfully submitted,

ROBERT ABRAMS

Attorney General of the

State of New York

Attorney for Petitioners

120 Broadway

New York, New York 10271

Tel. No. (212) 341-2300

O. PETER SHERWOOD

Solicitor General

PETER BIENSTOCK*

MARY HILGEMAN

MELVIN GOLDBERG

Assistant Attorneys General

of Counsel

* Counsel of Record

MARTIN MINKOWITZ

General Counsel

New York State Department

of Insurance

December 17, 1986