Appendix — New York v. Dole
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DEC 17 1008
IN THE ; {
Supreme Court of the wining STIRS sR.
Ocroser 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.
APPENDIX TO 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)
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
la
STATE FARM MUTUAL AUTOMOBILE INSURANCE
COMPANY, et al.,
Petitioners,
= V -_~
Elizabeth DOLE, Secretary of the Department of
Transportation, et al.,
Respondents.
AMERICAN INSURANCE ASSOCIATION,
Petitioner,
—V.—
Elizabeth DOLE, Secretary of the Department of
Transportation; the Department of Transportation;
Diane Steed, Administrator of the National Highway Traffic
Safety Administration; and the National Highway
Traffic Safety Administration,
Respondents.
NATIONWIDE MUTUAL INSURANCE COMPANY,
Petitioner,
—Y,—
Elizabeth DOLE, Secretary of the Department of
Transportation; the Department of Transportation; Diane
Steed, Administrator of the National Highway Traffic Safety
Administration; and the National Highway Traffic
Safety Administration,
Respondents.
2a
NATIONAL ASSOCIATION OF INSURANCE
COMMISSIONERS,
Petitioner,
— Vv. —
Elizabeth DOLE, Secretary of the Department of
Transportation; the Department of Transportation;
Diane Steed, Administrator of the National Highway
Traffic Safety Administration; and the National Highway
Traffic Safety Administration,
Respondents.
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 and
the New York State Department of Insurance,
Petitioners,
—-vVv.—
Elizabeth DOLE, Secretary of the Department of
Transportation, et al.,
Respondents.
Nos. 84-1301, 84-1459 to 84-1462.
United States Court of Appeals, District of Columbia Circuit.
Argued March 11, 1986.
Decided September 18, 1986.
3a
Petitioners brought action challenging Department of
Transportation’s regulations with respect to passive restraints in
automobiles. The Court of Appeals, Starr, Ciré@hit Judge, held
that: (1) attack on provision by which Secretary of Transporta-
tion may rescind requirement for phased-in installation of
automatic protection devices in new cars should states covering
two-thirds of nation’s population enact mandatory safety belt
laws was not ripe for judicial review, and (2) New York’s
challenge to rescission rule, although ripe, failed on the merits.
Petition of New York denied, all other petitions dismissed.
Mikva, Circuit Judge, concurred in part and dissented in part
and filed opinion.
1. Federal Courts 12
The ripeness doctrine limits the power of federal courts in ad-
judicating disputes.
2. Administrative Law and Procedure 704
Even when agency action is final and issues presented are pure-
ly legal, court may nonetheless properly deem the matter unfit
for resolution if postponing review would provide for more ef-
ficient examination and disposition of the issues.
3. Administrative Law and Procedure 701
For institutional interest in deferral to be outweighed, postpon-
ing review must impose hardship on complaining party that is im-
mediate, direct, and significant.
4. Administrative Law and Procedure 701
Agency enforcement policy may impose requisite hardship on
complaining party to outweigh postponing of review of issue even
before policy is implemented if it would unreasonably prompt
regulated industry, unwilling to risk penalties by defying the
policy, to undertake costly compliance measures, but party’s
4a
allegation of hardship will be found wanting if there are too many
“ifs” in the asserted causal chain linking agency’s action to alleged
hardship, or if asserted hardship is not sufficiently concrete.
5. Administrative Law and Procedure 701
If interests of court and agency in postponing review outweigh
interests of those seeking relief, settled principles of ripeness
squarely call for adjudication to be postponed.
6. Administrative Law and Procedure 704
Automobiles 10
Although Secretary of Transportation’s rule, which would
rescind requirement of phased-in installation of automatic pro-
tection devices in new cars if states covering two-thirds of the na-
tion’s population enact mandatory safety belt usage laws, con-
stituted final agency action, issue of whether rescission provision
was arbitrary and capricious was not ripe for review in view of
fact that institutional interest in avoiding speculative controver-
sies was powerfully present because evidence indicated that possi-
ble rescission would likely never occur and such institutional in-
terests was not counterbalanced by requisite showing of hardship
to challengers of rule. National Traffic and Motor Vehicle Safety
Act of 1966, §§ 1 et seq., 103(a), 15 U.S.C.A. §§ 1381 et seq.,
1392(a).
7. Administrative Law and Procedure 704
Automobiles 5(2)
Issue raised by petitioners as to whether Secretary of Trans-
portation’s automatic rescission of requirements of phased-in in-
stallation of automatic protection devices in new cars was con-
trary to Safety Act was not ripe for adjudication in view of the
fact that rescission was unlikely to occur and petitioner’s harm
would occur only if uniform standard was rescinded. National
Traffic and Motor Vehicle Safety Act of 1966, § 1 et seq., 15
U.S.C.A. § 1381 et seq.
5a
8. Administrative Law and Procedure 704
Automobiles 10
New York’s claim that Secretary of Transportation was at-
tempting, through regulation providing for automatic rescission
of rule requiring phased-in installation of automatic protection
devices in new cars if states covering two-thirds of nation’s
population enact mandatory safety belt usage laws, to exert in-
fluence on state legislation, was not ripe for review in view of fact
that alleged hardship created by postponing review of issue was
insufficient to outweigh institutional interest in postponement.
9. Administrative Law and Procedure 704
Automobiles 10
New York’s challenge to Secretary of Transportation’s decision
not to require either air bags or nondetachable automatic belts
as sole mechanisms for satisfying passive restraint requirement,
as being arbitrary and capricious, was ripe for review in view of
fact that New York alleged sufficient hardship which was not
counterbalanced by institutional interests in postponing review.
10. Automobiles 10
Secretary of Transportation’s conclusion that nondetachable
seat belt was the most coercive type of automatic restraint and
that imposing that particular requirement would create a serious
adverse public reaction so that detachable seat belts as well as
nondetachable seat belts would meet statutory standard for
automatic restraints was not arbitrary and capricious.
11. Autome*iles 10
Secretary of Transportation’s failure to mandate air bags in all
cars under rule requiring phased-in installation of automatic pro-
tection devices in new cars was not arbitrary and capricious in
light of cost factors and contrary public opinion surveys.
LEE
6a
Petitions for Review of the Orders of the National Highway
Traffic Safety Administration.
James F. Fitzpatrick, with whom Michael N. Sohn, John M.
Quinn, Merrick B. Garland and Charles A. Taylor, III,
Washington, D.C., were on the brief, for petitioners, State Farm
Mut. Auto. Ins. Co., et al. in Nos. 84-1301, 84-1459 and 84-1460.
Melvin Goldberg, with whom Robert Abrams, Peter
Bienstock, Paul M. Glickman and Daniel D. Kaplan, New York
City, were on the brief, for petitioners, The State of N.Y., et al.
in No. 84-1462.
Robert H. Myers, Jr., Washington, D.C., was on the brief, for
petitioner, Nat. Ass’n of Ins. Com’rs in No. 84-1461.
Douglas Letter, Atty., Dept. of Justice, with whom Richard
K. Willard, Acting Asst. Atty. Gen., Dept. of Justice, Kenneth
N. Weinstein, Deputy Asst. Gen. Counsel, Dept. of Transp.,
Frank Berndt, Chief Counsel, Nat. Highway Traffic Safety Ad-
min., Paul Blankenstein, Atty., Dept. of Justice and Stephen P.
Wood, Atty., Nat. Highway Traffic Safety Admin., Washington,
D.C., were on the brief, for respondents in Nos. 84-1301,
84-1459, 84-1460, 84-1461 and 84-1462.
Christopher D. Coppin, Asst. Atty. Gen., State of N.M., Albu-
querque, N.M., was on the brief, for amicus curiae, The State
of N.M. urging reversal in Nos. 84-1301, 84-1459, 84-1460 and
84-1461.
Philip R. Collins, Washington, D.C., was on the brief, for
amicus curiae, Automotive Occupant Protection Ass’n urging
reversal in Nos. 84-1301, 84-1459, 84-1460 and 84-1461.
Debbie M. Zuckerman was on the brief, for amicus curiae.
Epilepsy Foundation of America, urging reversal in Nos. 84-1301,
84-1459, 84-1460 and 84-1461.
Dennis J. Barbour, Roanoke, Va., was on the brief, for amicus
curiae, American Academy of Pediatrics, et al. urging reversal
in Nos. 84-1301, 84-1459, 84-1460 and 84-1461.
——— a |
7a
Jerris Leonard, Washington, D.C., was on the brief, for
amicus curiae, Conference of Ins. Legislators urging reversal in
Nos. 84-1301, 84-1459, 84-1460 and 84-1461.
Before MIKVA, SCALIA and STARR, Circuit Judges.
Opinion for the Court filed by Circuit Judge STARR.
Opinion concurring in part and dissenting in part filed by Cir-
cuit Judge MIKVA.
STARR, Circuit Judge:
These consolidated cases bring us once more into the long-
standing controversy over the Department of Transportation's
regulations with respect to “passive restraints” in automobiles.
Unlike its most recent predecessor, the rule at issue requires the
phased-in installation of automatic (i.e., passive) protection
devices in new cars manufactured for sale in the United States
beginning September 1986.' The rule, however, contains a pro-
vision under which the Secretary of Transportation will rescind
the requirement if, by April 1, 1989, States covering two-thirds
of the Nation’s population enact mandatory safety belt usage
laws. This provision is challenged by all petitioners’ as both
' “Passive protection” refers to technologies that require no affirmative con-
duct by the automobile occupant. Examples are: airbags, which are deflated
bags stored under the dashboard or in the steering wheel of a car that inflate
in front of the occupant very rapidly when a car suddenly decelerates; passive
interiors, additional padding and changes to such items as the steering column
designated to make a car’s interior sufficiently safe even without safety belts or
airbags; and automatic safety belts, which move into place automatically when
the passenger sits in a seat and closes the door. Automatic belts can be
detachable, meaning that they have an easily reachable release mechanism that
can be used to disconnect the belt and leave it that way permanently, or
nondetachable, meaning that they can only be disconnected by disabling them
completely such as by cutting the belt iself.
? Petitioners in this case are State Farm Mutual Automobile Insurance Co. ;
the National Association of Independent Insurers; Nationwide Mutual In-
surance Co.; the American Insurance Association; the National Association of
Insurance Commissioners; the State of New York, its Department of Insurance,
its Attorney General, and its Superintendent of Insurance; and two individuals,
Kent Mason and Patricia Warren.
8a
contrary to the applicable statute and as arbitrary and capricious.
While joining in this common attack, the State of New York
mounts a separate challenge to the Secretary's decision not to
adopt certain alternative standards in the fina! regulation.
We hold that the attack upon the rescission feature of the
regulation is not ripe for judicial review. We aiso hold that New
York’s separate challenge, while ripe, fails on the merits.
I
In response to high death tolls on our Nation’s highways, Con-
gress enacted the National Traffic and Motor Vehicle Safety Act
of 1966 (the Safety Act), 15 U.S.C. §§ 1381 et seq. (1982). The
Safety Act was intended “to reduce traffic accidents and deaths
and injuries to persons resulting from tral.ic accidents.” Id. §
1381. To that end, the statute directed the Secretary to “establish
by order appropriate Federal motor vehicle safety standards” that
are “practicable, [and] meet the need for motor vehicle safe-
ty... . "Id. § 1392(a).
Under this broad mandate, the Department in 1967 pro-
mulgated Federal Motor Vehicle Safety Standard 208, which re-
quired installation of manual safety belts in all cars. 32 Fed. Reg.
2408, 2415 (1967) (Standard 208). Two years later, however, the
Department initiated consideration of automatic or passive oc-
cupant protection technology since the level of safety belt usage
was quite low. As a result of this inquiry, the Department in 1972
adopted an amendment to Standard 208 requiring “complete
passive protection” on automobiles manufactured after August
15, 1975. 37 Fed. Reg. 3911 (1972). Standard 208 was subsequent-
ly reconsidered and modified a number of times.’ Ultimately, it
was amended to require the phasing-in of passive restaints
* This history is detailed in State Farm Mut. Auto. Ins. Co. v. Department
of Transp., 680 F.2d 206, 210-12 (D.C.Cir. 1982), vacated sub nom. Motor
Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 103 S.Ct.
2856, 77 L.Ed.2d 443 (1983).
9a
beginning with the 1982 automobile model year. 42 Fed. Reg.
34,-289 (1977). This Modified Standard 208 was upheld on
review by this Court. See Pacific Legal Foundation v. Depart-
ment of Transportation, 593 F.2d 1338 (D.C. Cir.), cert. denied,
444 U.S. 830, 100 S.Ct. 57, 62 L.Ed.2d 38 (1979).
In February 1981, the Department reopened the rulemaking
that had produced Modified Standard 208, 46 Fed. Reg. 12,033
(1981). Two months later, it postponed the date on which phase-
in of passive restraints was to begin, 46 Fed. Reg. 21,172 (1981),
and proposed the possible rescission of the entire standard, id. at
21,205. Following a comment period and public hearings, the
Department concluded that a reliable basis no longer existed on
which to conclude that the passive restraint requirements would
have significant safety benefits. In view of the substantial costs
of implementing the requirement and the lack of a viable alter-
native, the agency simply rescinded the standard. 46 Fed. Reg.
53,419 (1981). This action was overturned by this court in State
Farm Mutual Automobile Insurnace Co. v. Department of
Transportation, 680 F.2d 206 (D.C.Cir. 1982). The Supreme
Court vacated our judgment, but agreed that the agency’s action
was arbitrary and capricious. The matter was remanded to the
Secretary for further consideration. See Motor Vehicle Manufac-
turers Association v. State Farm Mutual Automobile Insurance
Co., 463 U.S. 29, 57, 103 S.Ct. 2856, 2873, 77 L.Ed.2d 443
(1983) (State Farm).
It is the Secretary's determination upon reconsideration that
is now before us. After suspending the effective date of Modified
Standard 208 for one year, 28 Fed. Reg. 39,908 (1983), the
Department issued a notice of proposed rulemaking and re-
quested comments regarding what action it should take with
respect to passive restraints, 48 Fed.Reg. 48,622 (1983).*
* The notice of proposed rulemak ng suggested several possible courses of ac-
tion, including retaining Modified Standard 208 but setting a new compliance
schedule; amending Modified Standard 208 to require airbags only, or airbags
or non-detachable belts only; rescinding Modified Standard 208; conducting
a voluntary demonstration program by automobile manufacturers to gather
more data; and seeking mandatory state safety belt usage laws. 48 Fed. Reg.
48,622.
10a
Following the close of the comment period, the Department
issued a supplemental notice of proposed rulemaking to gather
additional comments. 49 Fed. Reg. 20,460 (1984). On July 17,
1984, the Department published its final rule amending Modified
Standard 208 to require passive restraints. 49 Fed. Reg. 28,962
(1984) (codified at 49 C.F.R. § 571.208 (1984)) (Final Rule). The
Final Rule can be satisfied in several ways, including airbags,
enhanced padding of the automobile interior, and [ ] either
detachable or non-detachable automatic belts. During the first
few years after the standard takes effect, the Final Rule creates
special incentives for installation of passive protection systems
other than automatic belts. Specifically, for each car in which
an airbag or passive interior system is installed, the manufacturer
will be given credit for an extra one-half automobile toward its
percentage requirement. Id. at 29,000.
The Final Rule requires the phasing-in of passive occupant pro-
tection in all passenger cars beginning September 1, 1986. Id. at
28,963. But there is another feature of the Final Rule which has
drawn the petitioners’ attack. The passive restraint requirements
embodied in the new standard will be rescinded if by April 1,
1989, two-thirds of the population of the United States is covered
by mandatory usage laws (MULs) which meet certain specified
conditions. Id.* It is this “trap door” provision, as petitioners
* This notice sought comments regarding public acceptance of automatic
restraints, usage rates and effectiveness of the various restraint systems, and the
benefits to be derived from the various alternatives. The Department also sought
comments on the following automobile occupant protection alternatives: re-
quiring automatic restraints with a waiver for States with mandatory safety belt
usage laws (MULs); requiring automatic restraints except if three-fourths of the
States enact MULs; requiring a demonstration p: gram by automobile
manufacturers; and requiring airbags for the driver's side of small cars only.
49 Fed. Reg. 20,460 (1984). This comment period closed on June 13, 1984.
* These conditions are: (1) that the MUL require each out-board (non-center
front seat) occupant of a passenger car that that was required by federal regula-
tion, when manufactured, to be equipped with front seat occupant restraints
to have those restraints properly fastened about their bodies at all times while
(Footnote Continued)
lla
colorfully put it, that provides the focal point of the various
challenges before us. 'To exacerbate matters, as petitioners see it,
the Final Rule further provides that the Secretary will consider
waiving the minimum requirements for States that had “substan-
tially complying” MULs in place prior to August 1, 1984. Id. at
28,999. The automatic occupant protection requirement will be
rescinded immediately upon the Secretary’s determination that
the requisite two-thirds population level is reached.’
II
We first address the ripeness issues raised by the Secretary.
After setting forth some general principles to guide our analysis,
we then examine each issue raised by petitioners to determine
whether it is ripe for review.
A
[1] The ripeness doctrine limits the power of federal courts in
adjudicating disputes. Its roots are found in both the Article III
requirement of “case or controversy” and prudential considera-
tions favoring the orderly conduct of the administrative and
judicial processes. See Regional Rail Reorganization Act Cases,
419 U.S. 102, 138, 95 S.Ct. 335, 356, 42 L.Ed.2d 320 (1974);
Eagle-Picher
the vehicle is in forward motion; (2) a prohibition of waivers from the MUL ex-
cept for medical reasons; (3) an effective date of not later than September 1,
1989; and (4) an enforcement program that includes (a) a minimum penalty
of $25, with a separate penalty imposed for each person violating the law, (b)
a civil litigation penalty providing that the violation of a MUL may be used in
mitigating any damages sought by a person injured in an accident, (c) the
establishment of a program to encourage compliance with the MUL, and (d)
the establishment of a MUL evaluation program by the State to provide in-
formation to the Department regarding its MUL. 49 C.F.R. § 571.208.S4.1.5.2
(1984).
’ The compliance schedule in the absence of rescission is as follows: ten per-
cent of all automobiles manufactured after September 1, 1986; twenty-five per-
cent after September 1, 1987; forty percent after September 1, 1988; and one
hundred percent after September 1, 1989. 49 Fed. Reg. at 28,963.
12a
Industries v. EPA, 759 F.2d 905, 912 (D.C.Cir.1985).* According
to the leading Supreme Court case on the subject, Abbott
Laboratories v. Gardner, 387 U.S. 136, 87 S.Ct. 1507, 18
L.Ed.2d 681 (1967), the ripeness doctrine is designed to protect
both Article II and Article III interests. First, it is intended “to
prevent the courts, through avoidance of premature adjudica-
tion, from entangling themselves in abstract disagreements over
administrative policies.” 387 U.S. at 148, 87 S.Ct. at 1515.
Second, the doctrine is intended “to protect the agencies from
judicial interference until an administrative decision has been for-
malized and its effects felt in a concrete way by the challenging
parties.” Id.
Abbott Laboratories set forth a now familiar two-part test for
deciding whether an agency action is ripe for review, focusing
on both (1) “the fitness of the issues for judicial decision,” and (2)
“the hardship to the parties of withholding court consideration.”
Id. at 149, 87 S.Ct. at 1515. Like other legal inquiries, applica-
tion of this test is by no means an exact science; nor is it to be a
matter of weaving “complicated legal distinctions” divorced from
reality. See Midwestern Gas Transmission Co. v. FERC, 589
F.2d 603, 618 (D.C.Cir.1978); Continental Air Lines, Inc. v.
CAB, 522 F.2d 107, 128 (D.C.Cir.1974). It requires, rather, the
exercise of “practical common sense,” faithful to the considerable
body of law which guides us. Id. at 124.
[2] Under the first prong of the Abbott Labs test, the court con-
siders any institutional interests that either the court or the agency
may have for postponing review. See Eagle-Picher, 759 F.2d at
915. Under this branch of our analysis, we consider such matters
as whether the agency’s action is final and whether the issue is a
purely legal one. See, e.g., Abbott Laboratories, 387 U.S. at 149,
87 S.Ct. at 1515; Continental Air Lines, 522 F.2d at 126.
* This court has recently stated that “[t]he point at which constitutional con-
straint fades into persuasive practicalities is difficult to discern and unnecessary
to identify.” Action Alliance of Senior Citizens v. Heckler, 789 F.2d 931, 940
(D.C.Cir. 1986). The same result obtains whether the court bases its finding of
unripeness on constitutional or prudential considerations.
a i ala
l3a
But even when agency action is final and the issues presented are
purely legal, a court may nonetheless properly deem a matter un-
fit for resolution if postponing review would provide for a more
efficient examination and disposition of the issues. See Toilet
Goods Association v. Gardner, 387 U.S. 158, 163-64, 87 S.Ct.
1520, 1524-25, 18 L.Ed.2d 697 (1967); Alascom, Inc. v. FCC,
727 F.2d 1212, 1217 (D.C.Cir.1984); Midwestern Gas, 589 F.2d
at 620. The court, for example, might determine that “further
administrative action is needed to clarify the agency’s position,”
Action Alliance of Senior Citizens v. Heckler, 789 F.2d 931, 940
(D.C.Cir.1986), or that the court’s deliberations might benefit
from letting the question arise “in some more concrete and final
form,” Eagle-Picher, 759 F.2d at 915 (quoting Continental Air
Lines, 522 F.2d at 125); or that resolution of the dispute is like-
ly to prove unnecessary, see id. For all these reasons, courts and
agencies have a legitimate interest in avoiding adjudication of
speculative controversies.
[3, 4] The second prong of the Abbott Labs test requires con-
sideration of the countervailing interests of the challenging parties
in obtaining a prompt resolution of their dispute. See id. at 915.
It is well settled that for an institutional interest in deferral to be
outweighed, postponing review must impose a hardship on the
complaining party that is immediate, direct, and significant. See
Abbott Laboratories, 387 U.S. at 152-53, 87 S.Ct. at 1517-18; Ac-
tion Alliance, at 940. Thus, as in Abbott Labs itself, an agency
enforcement policy may impose the requisite hardship even
before the policy is implemented if, for example, it would
reasonably prompt a regulated industry, unwilling to risk
substantial penalties by defying the policy, to undertake costly
compliance measures. See, e.g., Abbott Laboratories, 387 U.S.
at 152-53, 87 S.Ct. at 1517-18. On the other hand, a party’s
allegation of hardship will be found wanting if there are too many .
“ifs” in the asserted causal chain linking the agency’s action to the
alleged hardship, see, e.g., Tennessee Gas Pipeline Co. v. FERC,
736 F.2d 747, 750 (D.C.Cir.1984), or if the asserted hardship is
not sufficiently concrete, see, e.g., Abbott Laboratories, 387 U.S. at
148, 87 S.Ct. at 1515. “The mere potential for future injury,” moreover,
is not enough. Alascom, 727 F.2d at 1217 (emphasis in original).
l4a
[5] We recognize that even though “the courts might prefer to
resolve a particular question at another time and place, they
should have a very good reason for indulging that preference, if
in doing so they are refusing a petitioner’s request to be relieved
of an onerous legal uncertainty.” Continental Air Lines, 522 F.2d
at 128. But, if the interests of the court and agency in postpon-
ing review outweigh the interests of those seeking relief, settled
principles of ripeness squarely call for adjudication to be
postponed.
B
With one exception, we conclude that in the case before us the
uncertainties occasioned by postponing review are not sufficiently
onerous — if indeed they are onerous at all — to overcome the in-
stitutional interests in postponement. The exception, as we will
explain later, is New York’s challenge to the Secretary’s decision
rejecting certain alternatives in her formulation of the passive
restraint standard.
[6] All of the petitioners contend that, for various reasons, the
automatic rescission feature of the Secretary’s rule is arbitrary and
capricious.* This issue, we are persuaded, is not ripe for review
under the Abbott Labs analysis.
To be sure, the Secretary’s Final Rule constitutes final agen-
cy action. And, the question whether the rescission provision is
arbitrary and capricious requires no further factual development
* Petitioners advance three grounds for this assertion: (1) the Secretary failed
adequately to consider the alternative of permitting both MULs and a federal
passive restraint standard, see State Farm Brief at 33-36; NAIC Brief at 11; New
York Brief at 25-27; (2) the Secretary has provided insufficient justification for
her view that MUL in States covering two-thirds of the U.S. population would
provide safety benefits equal to or greater than a passive restraint standard, see
State Farm Brief at 36-45; NAIC Brief at 11; New York Brief at 24-25; and (3)
that the provision’s waiver rule lacks a rational basis, see New York Brief
at 27-29.
l5a
inasmuch as this question must be resolved on the basis of the ad-
ministrative record before the Secretary at the time of her
decision. '°
Nonetheless, the institutional interest in avoiding speculative
controversies is powerfully present here because the evidence
before us indicates that the possible rescission about which peti-
tioners are vexed will likely never occur. According to data sup-
plied by one petitioner, State Farm Insurance Co., twenty States,
covering sixty percent of the U.S. population, have now passed
mandatory usage laws. None of these laws, however, apparently
complies with the Secretary’s specific requirements. See State
Farm Supplemental Brief at 7-10, la." Even if all remaining
States were to pass complying MULs (and assuming that New
York’s pre-Final Rule MUL is counted under the Secretary’s
waiver provision), some States with MULs now on the books
would have to amend their statutes to comply with the Final Rule
in order for the two-thirds population requirements to be met.”
‘© One of the petitioners also contends that this case is fit for review because
“Congress has explicitly indicated that final automotive safety standards . . . be
reviewed within 60 days of their promulgation. 15 U.S.C. § 1394(a)(1).” NAIC
Brief at 3. The petitioner, however, has misconstrued the statute. That measure
does not speak to courts at all; instead it requires anyone who seeks to challenge
the Secretary’s standard to file a petition for review within 60 days of
promulgation.
'' Indeed, petitioners assert that since the Secretary promulgated the Final
Rule, the trend in state legislatures is to pass MULs that deliberately fall short
of the Secretary’s requirements so that the population of those States will not
be counted toward the Secretary's numerical requirement. See State Farm Sup-
plemental Brief at 9.
2 Aside from New York, States covering approximately 52 percent of the U.S.
population have passed apparently noncomplying MULs since the Final Rule
was promulgated. New York, which accounts for approximately 8 percent of
the population, passed a MUL prior to August 1, 1984. New York’s MUL ap-
pears to “substantially comply” with the Secretary’s requirements, thus it is quite
possible that New York’s population will be counted towards the two-thirds
population requirement under the waiver provision in the Final Rule. Assum-
ing New York’s MUL is counted, States covering at least an additional 59 per-
cent of the U.S. population will still have to pass complying MULs between now
and 1989.
16a
On the record before us, it appears singularly unlikely that the
passive restraint standard will be rescinded by 1989."* Failure to
rescind the standard at that time would, of course, render the
assault on the provision moot. Since it appears unlikely that the
“trap door” will ever be onened, a decision on this issue may very
well prove unnecessary.
The institutional interest in postponing review has not been
counterbalanced by the requisite showing of hardship. Petitioners
allege hardship resulting from (1) deaths that will likely occur if
the Secretary’s rule is rescinded; (2) the effects of the rescission
provision on the technological development of passive restraint
systems; and (3) the effect of the provision on the States and, in
turn, on the insurance companies’ and insurance commissioners’
lobbying efforts. We examine each of these in turn.
The first concern is clearly misplaced and need not detain us.
The evil feared by petitioners will never eventuate if rescission
is never effected. If, on the other hand, the “trap door” appeared
imminently ready to open, then petitioners could avail themselves
of further judicial proceedings — including seeking a stay — to pre-
vent that event from taking place. See Tennessee Gas, 736 F.2d
at 751; Air New Zealand v. CAB, 726 F.2d 832, 837 (D.C.
Cir. 1984). There will be ample opportunity to challenge rescis-
sion if it appears imminent at any time during the Secretary’s
three-year window of opportunity (or, as petitioners see it, a win-
dow of vulnerability).
Petitioners’ second concern is that the rescission provision may
be having an immediate, adverse effect on automakers’ incentives
to develop passive restraint systems. They fear that automakers
' Petitioners also seem concerned that the Secretary might bend the re-
quirements of the Final Rule and count noncomplying MULs, passed after pro-
mulgation of the rule and therefore not subject to the waiver provision, toward
the two-thirds population requirement as long as they are in substantial com -
pliance with the Secretary’s MUL standards. Should the Secretary take such ac-
tion, she would, of course, be changing the rules in the middle of the game. She
has not yet indicated any intention of doing so. If she were to alter the rules in
the manner feared by petitioners, however, review on that ground as well
would, of course, be available at that time.
17a
will delay development of such systems, with the result that the
passive restraints which are eventually installed will be inferior
and undertested. This, presumably, would affect the insurance
companies’ ultimate liabilities and, hence, their rates.
But this argument does not withstand analysis. First, it fails
to take adequately into account the practical reality that the
automobile industry must begin manufacturing cars with passive
restraints in September of this year.'* See supra note 7. Second,
and more fundamentally, the challenge is rife with speculation
about what may occur in the automobile industry. Lacking any
evidence to support their view, petitioners would have us gaze
into a crystal ball to determine what Detroit may or may not
do. On such musings judicial review cannot properly be
grounded.'*
'* Moreover, it is questionable whether the short-run incentives for develop-
ment of non-belt passive restraints created by the Secretary’s rule (giving ex-
tra credit for non-belt restraint systems installed during the phase-in period),
see 49 Fed. Reg. at 29,000, will be seriously diluted by the risk that the stan-
dard will be rescinded sometime before the end of the phase-in period. As
already noted, it now seems most unlikely that the Secretary will have occa-
sion to invoke the rescission provision at all; in addition, the federal require-
ment of passive restraints goes into effect for ten percent of the fleet coming
off the assembly line in the next few months. Rescission is plainly not immi-
nent; what is imminent is the installation, pursuant to federal mandate, of
passive restraints.
's Petitioners’ position seems in this respect similar to the alleged hardship
which we rejected as a basis for ripeness in Midwestern Gas. There, importers
of Canadian natural gas challenged an agency’s conditional authorization
allowing other importers to import Canadian gas through part of the Alaska
pipeline. The importers alleged that, if Canadian reserves dwindled, Canada
might perceive the U.S. agency’s action as a signal that this Nation “favored”
the Alaska pipeline; in consequence, the theory went, the Canadian energy
authorities might choose to grant import authorizations to “favored” importers
whose purchases came through that pipeline. This claim was deemed insuf-
ficient to merit adjudication at that time largely because the asserted injury
was grounded on speculation about future events and future behavior of third
parties. See 589 F.2d at 622-23. So too here.
18a
The third, and, according to petitioners, most serious hard-
ship spawned by postponing review is to “weaken state efforts
to enact tough MULs.” State Farm Reply Brief at 9; NAIC Reply
Brief at 5-6. Petitioners reason that state legislatures are forced
by the Final Rule to choose between a federal passive restraint
standard and strong MULs.
The threshold and, in our view, fatal difficulty with this argu-
ment is that the petitioners seek to assert the hardships of States
that are not before the court. Abbott Laboratories requires that
we look at the “hardship to the parties.” 387 U.S. at 149, 87
S.Ct. at 1515. New York is the only State to have petitioned
for review of the Secretary’s Final Rule, and New York had
already passed an MUL before the Final Rule was promulgated.
By virtue of its pre-MUL being firmly in place, New York is
left to contend only that “if New York soon determines that its
MUL needs to be strengthened, the State will face a serious
dilemma.” New York Reply Brief at 6 (emphasis added).'* This
is, again, a speculative scenario, not an indication of immediate
or concrete hardship of the kind demanded under the cases.’
'* Petitioners allege that, in formulating its mandatory seatbelt legislation,
the State of New Jersey consciously decided to employ a $20 fine for non-
compliance, rather than a higier fine, in order to avoid having its law count
toward the Secretary’s requirement. New Jersey, however, is not a party to
this litigation.
‘7 But even were we to overlook this threshold hurdle and allow the insurance
companies and commissioners to assert the interests of the States, we would
still discern no hardship of sufficient concreteness. The dilemma of the non-
present States as perceived by petitioners seems to us illusory. States can seem-
ingly avoid having their MULs “count” toward rescission of the federal stan-
dard by the expedient of including in their MULs a provision that automatical-
ly nullifies the measure as soon as it is counted toward the Secretary’s two-
thirds requirement. Indeed, a number of States have incorporated precisely
such provisions in their MULs. See State Farm Reply Brief at 7-10 app. We
of course assume the obvious, namely that States would prefer not to insert
a provision that poses a risk, however remote, that a much desired state law
might be rescinded. But the perceived necessity of including such a provision
does not seem to us a sufficiently immediate or onerous hardship, especially
(footnote continued)
smi
19a
Petitioners also assert that the rescission provision produces
hardship for States not contemplating MULs. According to peti-
tioners, such States — already in want of a MUL —could suffer
the further deprivation of a protective federal passive restraint
standard if as few as sixteen other States pass qualifying MULs.
(footnote continued)
when it now appears that a rescission is unlikely. And, if rescission does ap-
pear imminent, the courthouse doors are open for a renewed challenge to
the “trap door” provision.
Even putting to one side the availability of an automatic “sunset” provi-
sion, the States’ asserted dilemma would still be quite unlike that faced by
the pharmaceutical companies in Abbott Laboratories. There, as we previously
alluded to, the pharmaceutical companies were, for all practical purposes,
coerced into a particular course of conduct—changing their labels and
advertisements — by the prospect of civil and criminal penalties that might
be visited upon them. See 387 U.S. at 152-53, 87 S.Ct. at 1517-18. Primary
conduct was clearly being affected. Here, by contrast, the States fear that
unless they take a particular course of action — passing MULs that are less
stringent than they would otherwise prefer — the agency will withdraw federal
regulation which the States believe to be of benefit. That is not the concrete
effect on primary conduct that ripeness doctrine demands. The remote
possibility that such a benefit will be withdrawn is, in our view, a considerably
less substantial sort of “hardship” than the possibility that civil and criminal
penalties will be imposed.
The hardship to the States asserted by petitioners also seems much less
onerous than that asserted in Pacific Gas and Elec. Co. v. State Energy
Resources Conservation and Dev. Comm'n, 461 U.S. 190, 103 S.Ct. 1713,
75 L.Ed.2d 752 (1983), relied upon by NAIC. There, electric utilities con-
templating construction of nuclear plants challenged as preempted by federal
law a California statute imposing a moratcrium on nuclear plant construc-
tion until the State determined that adequate facilities had been developed
nationally for the permanent disposal of nuclear wastes. The utilities asserted
that, in light of the long lead time required before constructing a nuclear facili-
ty, they needed a judicial decision immediately; otherwise, they would be
forced either to abandon all nuclear energy development or run the risk that
planning and development expenses would be incurred for naught. See id.
at 201-02, 103 S.Ct. at 1720-21. In either case, the utilities would suffer serious
losses. In view of those circumstances, the Court concluded, “[t]o require the
industry to proceed without knowing whether the moratorium is valid would
impose a palpable and considerable hardship on the utilities, and may
ultimately work harm on the citizens of California.” Jd. Here, by contrast,
none of the petitioners alleges that the rescission provision of the Final Rule
has any immediate financial effects on them.
20a
See NAIC Reply Brief at 5-6. The State of New Mexico, one
of the amici here, also raises this argument. See Amicus Curiae
Brief of New Mexico at 3. As we have already established,
however, this asserted hardship is not cognizable because it is
not being asserted by any of the parties before the court. Assum-
ing arguendo that this argument could properly be advanced
by petitioners (or an amicus), this alleged hardship is still il-
lusory. The state of affairs petitioners fear will come about,
again, only if the Secretary in fact rescinds the passive restraint
standard. As we have by now recounted a bit tediously, judicial
review will be available should that time in fact appear to be
at hand. It is not at hand, and perhaps will never arrive.
Postponing review until that contingency materializes will im-
pose no hardship on those States.
The direct hardship asserted by the insurance companies and
commissioners is likewise inadequate. The principal effect of
the rescission provision on them, as they see it, is to hamper
them in their lobbying efforts to secure enactment of stringent
MULs in the several States by virtue of the risk that success on
that front would insidiously undermine the federal passive
restraint standard. See, e.g., NAIC Reply Brief at 6. These peti-
tioners, in a word, want both federal passive restraint re-
quirements and tough MULs. They emphatically do not want
to trade off one for the other. But uncertainty in lobbying
strategy scarcely rises to the level of concrete hardship. It seems
similar, upon analysis, to the “planning uncertainty” which our
prior cases have rejected as insufficient. See, e.g., Tennessee
Gas, 736 F.2d at 749-50 (rejecting as insufficient the assertion
that the agency’s interpretation affected current business plan-
ning); Diamond Shamrock Corp. v. Costle, 580 F.2d 670, 673
(D.C.Cir.1978)(rejecting as insufficient the contention by
dischargers that EPA’s new effluent permit regulations placed
them in “acute dilemma” that affected their business planning,
even before seeking permits under the new regulations). And,
in view of the unlikelihood that rescission will ever occur,
petitioners’ uncertainty seems minimal at best."
“In addition, the availability of an alternative state statute that would be _
rescinded if “counted” for federal recission purposes detracts significantly from
(footnote continued)
2la
[7] The second broad issue raised by petitioners is whether
the Secretary's automatic rescission is contrary to the Safety Act.
Specifically, petitioners contend that (1) by abandoning the
passive restraint standard in favor of MULs passed by some —
but not all — of the States, the Secretary violates her statutory
_ duty to ensure that safety standards be uniform; (2) by aban-
doning the standard in favor of State MULs, the Secretary
violates her statutory duty to put in place federal standards;
and (3) the automatic rescission provision is unlawful because
the statute does not confer upon the Secretary authority to seek
to influence safety legislation in the States. We find these con-
tentions, upon analysis, similarly unripe.
The first two contentions depend, of course, upon rescission
of the Final Rule; unless rescission comes, the evils identified
by petitioners in these two respects will never come to pass. The
harm allegedly flowing from the replacement of a uniform
federal standard by a patchwork of state legislation will occur
only when (if ever) the uniform federal standard is rescinded.
No one contends, nor could they reasonably, that the substan-
tive (i.e., nonrescission) provisions of the Final Rule are in any
wise non-uniform. Since the Secretary’s substantive standards
are at present national in scope and uniform in nature (and
since, as already discussed, the rescission provision will likely
never take effect), a substantial likelihood exists that resolution
of these two issues will prove unnecessary. For the same reasons
that petitioners’ “arbitrary and capricious” attack on the rescis-
sion provision is unripe, these two arguments must likewise be
deemed ripe.
[8] The third statutory challenge, advanced only by New
York, is also unripe, but requires a somewhat different analysis.
New York claims, in essence, that the Secretary is attempting
through the rescission provision to exert a here-and-now in-
fluence on state legislation. This, New York contends, the
Secretary has no statutory power to do. New York further main-
tains that the court has no interest in waiting to see whether
the force of any effects on the insurance industry's (and insurance regulators’)
lobbying activities in the various state capitals.
22a
the Secretary’s contemplated action ever takes place, for the rele-
vant action has already occurred and indeed continues to oc-
cur. This issue is therefore, New York argues, more “fit” for
resolution than the issues which we have already discussed.
We are unpersuaded that this issue is ripe. Although we agree
that the Secretary’s alleged violation (as New York sees it) of
the Safety Act has already occurred, this issue is still unfit for
review because it has not yet arisen in a sufficiently concrete
setting. As we have seen, New York, the only party raising this
issue, has not alleged the existence of any proposed or pending
legislation in that State on which the Secretary’s asserted viola-
tion is having any purported effect. As to New York itself, then,
the Secretary's alleged “coercion” of the States is obviously
speculation upon speculation. Moreover, neither New Mexico
(which, as we noted before, filed an amicus brief) nor any other
State is before us contending that its legislative process is present-
ly being affected by the Secretary’s alleged coercion. Although
the issue New York raises appears to be a legal one, it would
be helpful to the court to see how this alleged coercion actually
operates in practice. See, e.g., Toilet Goods Association, 387
U.S. at 164, 87 S.Ct. at 1524 (although issues raised are legal,
judicial appraisal of FDA regulations would “stand on a much
surer footing in the context of a specific application”). In addi-
tion, postponing review until such a situation allegedly arises
would help “assure that concrete adverseness which sharpens
the presentation of issues.” Baker v. Carr, 369 U.S. 186, 204,
82 S.Ct. 691, 703, 7 L.Ed.2d 663 (1962)(discussing rationale
for standing requirement in setting of constitutional adjudica-
tion)."* Turning to the second prong of the Abbott Labs test,
neither New York nor any other State alleges, as we have seen,
any direct, present hardship arising from the Secretary’s alleged
violation of the Safety Act in this respect. Under these
‘* In so holding, we do not pass upon the underlying question whether an
alleged effect upon an ongoing legislative process is sufficiently concrete in
nature to satisfy the considerations that ripeness doctrine sets before us. The
judicial manageability of such an inquiry is not immediately evident to us,
but we need not and do not opine one way or the other on the subject.
23a
circumstances, the alleged hardship created by postponing
review of this issue is insufficient to outweigh the institutional
interest in postponement.
In sum, we find that all the issues raised by petitioners’ at-
tacks on the Secretary’s rescission provision are not yet ripe for
review. That provision has not been implemented. It may well
never be implemented. The hardships alleged by petitioners are
either not their own or rest upon multiple layers of speculation.
Were we to entertain these contentions, “we would venture
away from the domain of judicial review into a realm more ac-
curately described as judicial preview.” Tennessee Gas, 736 F.2d
at 751. We have not been commissioned with a “roving preview
function,” see id., and we decline the invitation to assume that
role ourselves.”
3
[9] Of the parties before us, only the State of New York
challenges the Secretary’s decision not to require either airbags
or non-detachable automatic belts as the sole mechanisms for
satisfying the passive restraint requirement. New York contends
that this decision is “arbitrary and capricious” under the Ad-
ministrative Procedure Act, 5 U.S.C. § 706(2)(A)(1982). The
issue is ripe for review, for reasons we shall now describe.
First, the issue fully satisfies the fitness prong of the Abbott
Labs inquiry since neither the court nor the agency has anything
to gain by postponing review. The agency’s decision is final.
Resolution of the issue requires no more factual development
than that already contained in the administrative record. No
further administrative action is needed to clarify the agency’s
* Our decision does not create a “catch 22” for litigants seeking review of
agency action under a statutory provision that requires them to petition the
court within a short period after the agency's action becomes final. As we
have previously stated, “it is the duty of the court to make the prudential
judgment whether a challenge to agency action is ripe; it is the responsibility
of petitioners to file for review within the period set by Congress.” Eagle-
Picher, 759 F.2d at 912.
24a
position. Indeed, it appears that the Department intends to take
no further action on this issue; in consequence, no future agen-
cy action or proceeding looms on the horizon that would per-
mit us to test the effect of the agency’s decision in a more con-
crete setting.
Moving to Abbott Labs’ second prong, New York has alleg-
ed substantial hardships resulting from postponing review. The
phasing in of passive occupant protection mandated by the
Secretary’s rule is to begin straight away, effective September
1, 1986. If New York is correct in asserting that the Fina! Rule
is more lenient (and therefore less promotive of automobile safe-
ty) than is justified by the record, then many people, including
New York citizens, may be adversely affected in the most direct
way by the Secretary’s failure to require greater protection. In
the absence of countervailing institutional interests, we are
satisifed that New York has alleged in this respect a sufficient
hardship so as to make its contention ripe for review.”'
III
We turn then to the merits of the one ripe issue — New York’s
challenge to the Secretary’s failure to implement certain
* The dissent argues that a portion of the New York challenge found unripe
by the court is in fact ripe, namely that “the Secretary arbitrarily failed to
consider the alternative of permitting both mandatory usage laws (MULs)
and a federal passive restraint standard.” Dissent at 490. But this contention
is, upon analysis, simply one part of the broader attack on the “trapdoor”
provision itself as being arbitrary and capricious. The Secretary's “permit-
ting” state-adopted MULs (plus requiring passive restraints) is just another
way of describing the elimination of the Secretary's “trapdoor.” A careful
scrutiny of the various petitioners’ claims in this respect confirms our reading.
See, e.g., State Farm Brief at 29-36. This should come as no surprise, since
the situation of the Secretary's “permitting” both mandatory usage laws and
imposing a federal passive restraint standard is in fact the situation that now
obtains. State MULs (and the passive restraint requirement) will be “permit-
ted” until such time, if ever, that the requisite population coverage is met,
a condition which we have already determined to be unlikely to occur. It
is the contingent (and indeed remote) nature of this desired state of affairs
coming to an end that renders this contention unripe for review.
25a
alternatives suggested during the courts of the rulemaking. In
order to prevail, New York bears the burden of establishing that
the agency’s action was “arbitrary or capricious.” See, e.g., Na-
tional Association of Regulatory Utility Commissioners v. FCC,
746 F.2d 1492, 1502 (D.C.Cir.1984).” It hardly bears repeating
that this is a narrow standard of review, one which forbids us
from substituting our judgment for that of the agency. Citizens
to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416,
91 S.Ct. 814, 823, 28 L.Ed.2d 136 (1971). We must, of course,
engage in a “searching and careful” review of the agency’s
reasoning, see id., and avoid becoming a “rubberstamp” for the
agency, see Bureau of Alcohol, Tobacco and Firearms v. FLRA,
464 U.S. 89, 97, 104 S.Ct. 439, 444, 78 L.Ed.2d 195 (1983)
(quoting NLRB v. Brown, 380 U.S. 278, 291-92, 85 S.Ct. 980,
988-89, 13 L.Ed.2d 839 (1965)), or letting deference to the agen-
cy’s judgments slip into “judicial inertia,” see id. (quoting
American Shipbuilding Co. v. NLRB, 380 U.S. 300, 318, 85
S.Ct. 955, 967, 13 L.Ed.2d 855 (1965)). But we may nonetheless
overturn agency action only where a “clear error of judgment”
has occurred. Bowman Transportation, Inc. v. Arkansas-Best
Freight System, Inc., 419 U.S. 281, 285, 95 S.Ct. 438, 441, 42
L.Ed.2d 447 (1974); Overton Park, 401 U.S. at 416, 91 S.Ct.
at 823. The agency must be upheld as long as it has articulated
a satisfactory explanation for its action, including a “ ‘rational
connection between the facts found and the choice made.’ ” State
Farm, 463 U.S. at 43, 103 S.Ct. at 2866 (1983) (quoting Burl-
ington Truck Lines, Inc. v. United States, 371 U.S. 156, 168,
83 S.Ct. 239, 246, 9 L.Ed.2d 207 (1962)).
* The standard of review in this case is determined by the Safety Act. Section
103(b) of the Act, 15 U.S.C. § 1392(b) (1982), provides that “all orders
establishing, amending, or revoking a Federal motor vehicle safety standard”
shall be promulgated under the informal rulemaking procedures of the Ad-
ministrative Procedure Act, 5 U.S.C. § 1392(b) (1982). The APA, in turn,
provides that, insofar as the present bases of attack are concerned, the agen-
cy’s action may be set aside by a reviewing court only if found to be “arbitrary,
capricious, an abuse of discretion, or otherwise not in accordance with law.”
Id. § 706(2)(A).
26a
As is by now common ground in such cases, the agency may
be overturned if, for example, it “has relied on factors which
Congress has not intended it to consider, entirely failed to con-
sider an important aspect of the problem, offered an explana-
tion for its decision that runs counter to the evidence before the
agency, or is so implausible that it could not be ascribed to a
difference in view or the product of agency expertise.” Id.
Although we may not make up for deficiencies in the agency’s
anaylsis, see SEC v. Chenery Corp., 332 U.S. 194 , 196, 67 S.Ct.
1575, 1577, 91 L.Ed. 1995 (1947), we will “uphold a decision
of less than ideal clarity if the agency’s path may reasonably
be discerned[ ,]” Bowman Transportation, 419 U.S. at 286, 95
S.Ct. at 442.
New York contends that the passive restraint standard con-
tained in the Final Rule fails the “arbitrary and capricious” test
in three respects. First, New York asserts that the Department
should have excluded the option of meeting the passive restraint
requirement with detachable automatic belts, see New York
Brief at 29-32;* second, it maintains that the Secretary should
have required airbags in all cars, see id. at 33-36; and finally,
* New York also contends that the Secretary’s failure to eliminate detachable
seatbelts as an acceptable automatic restraint violates the Safety Act. The argu-
ment appears to be as follows: The Act directs the Secretary to establish motor
vehicle standards that “shall meet the need for motor vehicle safety.” 15 U.S.C.
§§ 1391(2), 1392(a). “Motor vehicle safety,” moreover, is defined as protec-
tion against “unreasonable risk.” Jd. § 1391(1). Because the usage rate with
non-detachable belts is higher than that for detachable automatic belts, DOT
is required to eliminate the detachable belt option; to do otherwise would
permit “unreasonable” risk. See New York Brief at 22-23. Even assuming the
accuracy of New York’ assertion about the effectiveness of non-detachable
belts, we cannot agree with the argument. The Safety Act does not require
the Secretary to adopt the technological alternative providing the greatest
degree of safety. The Act expressly permits the Secretary to consider such fac-
tors as reasonableness and practicality in addition to safety features. See 15
U.S.C. § 1392(f)(3). Both the Supreme Court and this court, moreover, have
recognised the Secretary's authority to consider such factors as cost and public
acceptance. See State Farm, 463 U.S. at 54, 103 S.Ct. at 2872; Pacific Legal
Foundation, 593 F.2d at 1345.
27a
it contends that the Secretary failed altogether to consider the
option of requiring both airbags and non-detachable belts, see
id. at 32.
1
[10] The Secretary fully considered the suggestion that, as
among automatic belts, only non-detachable rather than
detachable belts be deemed to meet the federal standard. Her
refusal to embrace the idea was based primarily upon two fac-
tors. First, since a non-detachable belt is, according to the
Secretary, “the most coercive type of automatic restraint,” 49
Fed.Reg. at 28,-993, imposing that particular requirement
would create a “serious adverse public reaction,” id. at 29,002.
New York contends that this conclusion “is admitted to be pure
speculation and belied by surveys of consumer attitudes in the
record.” New York Brief at 30. New York fails, however, to sup-
port this contention with any citations to the record or to other-
wise buttress its position. See id. The Secretary, by contrast,
cites surveys finding that 10 to 20 percent of the public would
be likely to cut non-detachable belts, thereby defeating the
system. See 49 Fed.Reg. at 28,993. This sort of consideration
is entirely appropriate to weigh in the balance; as we have
previously held in the very context of passive restraint standards,
the Department “cannot fulfill its statutory responsibility unless
it considers popular reaction.” Pacific Legal Foundation, 593
F.2d at 1345.
The second basis of the Secretary’s refusal to eliminate
detachable automatic belts from the passive restraint require-
ment was her judgment that non-detachable belts would effec-
tively force manufacturers to eliminate the center front seat.
See 49 Fed.Reg. at 28,993. According to the Secretary, even
if the center seat were exempt from the automatic belt require-
ment, occupants of that seat would have difficulty getting past
non-detachable belts to situate themselves at their front seat
destination. See id. Although New York argues that this con-
clusion is not necessarily correct (since the Secretary could either
require motorized automatic belts which come into place only
when the doors are closed, or, alternatively, could make an
28a
exception for cars with center seats), we cannot say that the
Secretary’s conclusion in this respect constitutes a “clear error
of judgment,” see Bowman Transportation, 419 U.S. at 285,
95 §.Ct. at 442, or is otherwise arbitrary and capricious.”
2
[11] New York next attacks the Secretary’s failure to man-
date airbags in all cars. Consistent with the Supreme Court’s
admonition that she is obliged to consider this option, see State
Farm, 463 U.S. at 46, 103 S.Ct. at 2868, the Secretary ana-
lyzed this possibility in considerable detail. See 49 Fed.Reg. at
28,990-92, 29,000-02.
Her ultimate decision not to require airbags, but to provide
incentives for their employment, was based on two factors.*
First, despite their admitted safety benefits, airbags are costly:
According to Department estimates, they would cost $320 more
per car than manual belts; in addition, their replacement cost
is an estimated $800, making it likely that many airbags would
not be replaced once used. See 49 Fed. Reg. at 29,001. These
* We also note that an earlier passive restraint standard permitting compliance
by means of a detachable belt was upheld by this court in Pacific Legal
Foundation.
** The dissent suggests that the States do not need to be encouraged to pass
MULs. Dissent at 495. That view, however, is not buttressed by any facts.
Indeed, it would appear that the passage of MULs has in fact come about
in response to the Secretary’s rule. Supp. Brief for Respondent at 5.
* The dissent argues that since airbags are rarely “inadvertently deployed,”
consumers will gladly pay to “replace the devices that saved the car’s occupants
from death or serious injury.” Dissent at 496. The dissent’s analysis leaves
no room for the category of airbags that are deployed by virtue of sudden
deceleration, without a crash, or those deployed in a minor accident for which
seat belts would have sufficed. While those saved from serious injury by vir-
tue of deployed bags may be willing to incur the replacement cost, drivers
not fitting into that category may resist paying $800 to replace inadvertently
deployed bags.
More broadly, it should not go unnoticed that the dissent goes farther in
its attack on the Secretary’s rule than the insurance industry itself. Unlike
the dissent, State Farm does not contend that the Secretary’s substantive rule
on passive restraints is unduly lenient.
29a
cost factors were appropriately taken into account. The Supreme
Court observed in State Farm that “[t]he agency is correct to
look at the costs as well as the benefits of Standard 208.” 463
U.S. at 54, 103 S.Ct. at 2872. Cf., e.g., American Textile
Manufacturers Institute, Inc. v. Donovan, 452 U.S. 490, 509,
101 S.Ct. 2478, 2490, 69 L.Ed.2d 185 (1981) (overturning
OSHA’s cotton dust regulations, in part because OSHA had
employed cost-benefit analysis in the face of statutory language
mandating feasibility analysis). In light of these cost estimates,
the Secretary concluded that the safety benefits of airbags would
not be worth their high cost.”’
New York vehemently challenges the agency’s cost-benefit
analysis in this arena of human safety. Specifically, New York
complains that the standard takes into account neither the fac-
tor of pain and suffering nor the value of human life itself. See
New York Brief at 33. Not so. The Final Rule devoted several
pages to a discussion of the relative effectiveness of airbags,
seatbelts, and passive restraints in reducing fatalities and serious
injuries. See 49 Fed.Reg. at 28,984-87; 29,001.
In a related vein, New York takes the Secretary to task for
relying upon the Department’s own cost estimates rather than
lower estimates found in the record. Again, we cannot say that
the Secretary’s cost estimates are arbitrary, particularly in light
of other cost estimates submitted by the automobile manufac-
turers that run much higher than the Secretary’s. In our view,
such details of cost-benefit analysis are “most appropriately en-
trusted to the expertise of an agency,” especially where, as here,
the evidence runs in contrary directions. See Office of Com-
munication of United Church of Christ v. FCC, 707 F.2d 1413,
1440 (D.C. Cir.1983).
*” The dissent argues that the Secretary improperly focused on costs, not safe-
ty. Dissent at 496. However, as the dissent concedes, the Secretary conclud-
ed that the replacement cost of airbags would likely deter consumers from
replacing them. If the airbags are not replaced, the Secretary feared, then
the occupants of those cars would be left unprotected. Dissent at 495. In our
view, the crux of the Secretary’s concern in this respect was safety, not cost
per se.
30a
The second basis for the Secretary’s decision was public ac-
ceptability. As a threshold matter, the Secretary recognized that
public acceptability would depend to a great extent on the cost
of airbags to consumers, concluding that “only a small percen-
tage appears willing to pay more than $400” for the devices.
49 Fed. Reg. at 28, 988. She also took cognizance of public fears
about chemicals used to deploy airbags, the possibility of in-
advertent deployment of the devices, and the sense of insecuri-
ty harbored by some people at not having a belt wrapped around
them. The Secretary reasoned that even though these fears are
largely unfounded they must nonetheless be taken seriously. She
opined that “[i]t may be easier to overcome these concerns if
airbags are not the only way of complying with an automatic
occupant protection requirement.” 49 Fed.Reg. at 29,001. In
short, the Secretary determined that these concerns could best
be addressed through real-world experience in the marketplace
rather than by regulatory fiat. New York’s only response to this
point is a single survey indicating that airbags enjoy a higher
level of public acceptability than either automatic or manual
belts. Particularly in light of a contrary public opinion survey
and numerous public comments going in a contrary direction,
see 49 Fed. Reg. at 28,988, we cannot say that the Secretary’s
refusal to give determinative weight to the survey championed
by New York descended to the depths of arbitrary and capricious
action. .
3
New York’s final attack on the Final Rule is that the Secretary
failed to consider the alternative of requiring both airbags and
non-detachabie automatic belts. An agency, of course, is obliged
to consider all practical, technologically feasible options. See
State Farm, 463 U.S. at 48, 103 S.Ct. at 2869. The Govern-
ment contends, however, that the Secretary did in fact consider
this alternative and advanced adequate reasons for rejecting it.
We agree. Although the Final Rule is scarcely a model of clari-
ty on this specific point, the Secretary’s path may nonetheless
reasonably be discerned. See Bowman Transporictisn, 419 U.S.
3la
at 286, 95S.Ct. at 442. One of the subsections in the Secretary’s
discussion of her reasons for not adopting other alternatives was
entitled “Airbags and/or Non-Detachable Seatbeits.” That sec-
tion discussed the weaknesses of non-detachable belts. See 49
Fed. Reg. at 29,002. It seems clear to us that this discussion 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 non-detachable belts
should be required in tandem with airbags. First, the perceived
individual weaknesses of airbags and non-detachable belts are,
standing alone, obviously germane to the desirability of requir-
ing the combination of the two. Second, the Secretary expressly
invoked her earlier discussion of various alternatives, including
an outright requirement of airbags. There was obviously no need
to repeat all the points on which she had already elaborated at
considerable length.” Third, had the Secretary intended in this
section to address only the option of requiring airbags or non-
detachable seat belts, one would think she would have chosen to
entitle this subsection differently than she did.
As to the substance of the decision not to require both devices,
we cannot discern any significant defects in the Secretary’s
reasoning. Having concluded that non-detachable automatic
belts posed public-acceptability concerns sufficient to preclude
requiring manufacturers to install them (rather than detachable
belts), the Secretary could reasonably decide not to require that
non-detachable belts be used in tandem with airbags. While not
articulated with crystalline clarity, the Secretary’s discussion of
this issue passes muster under the “arbitrary and capricious”
standard. |
** The dissent contends that the individual weaknesses of airbags and non-
detachable belts might be alleviated by requiring both. Dissent at 497. While
a dual requirement might maximize protection, it would obviously do nothing
to relieve the Secretary’s concerns about the primary drawbacks of the devices,
namely cost and public acceptability.
32a
IV
For the foregoing reasons, the petition of the State of New York
is denied insofar as it challenges the Secretary’s decision not to re-
quire airbags or non-detachable seat belts. All of the other peti-
tions, together with the remainder of New York’s petition, are
dismissed as unripe.
So Ordered.
MIKVA, Circuit Judge, concurring in part and dissenting in
part:
I agree with my colleagues that most of the challenges to the
Secretary’s authority are not ripe for the review being sought.
While I am troubled by the seeming absence of any statutory
authority for the Secretary’s stick and carrot dealings with the
states, the time to confront that question frontally is not now and
may never be, as far as most of the petitioners are concerned. I
am not as sanguine about the New York challenges to the
Secretary’s actions. My colleagues agree that most of the New
York complaints are timely and properly before this court. In my
view, however, they have erroneously declared one claim un-
timely. Moreover, I believe that all the complaints are
meritorious as well.
New York attacks the Secretary’s Final Rule on four grounds.
The majority addresses the merits of only three, upholding the
agency’s action as to each. Based on a misperception of the thrust
of the fourth claim, the majority rules it not ripe for review. I find
the agency’s action in each of the four instances is ripe and fails
to withstand judicial scrutiny under the arbitrary and capricious
standard of review. Unlike the majority, I believe that the agency
has failed to make the requisite rational connection between the
facts in evidence and its judgment relating to New York’s claims
sufficient to pass muster under the arbitrary-and-capricious stan-
dard. Therefore, I respectfully dissent.
There is no disagreement about the standard or the evidentiary
dimensions of our review. The Secretary’s modification of the
safety standards may be set aside if “found to be ‘arbitrary,
33a
capricious, an abuse of discretion, or otherwise not in accordance
with law.” ” See Motor Vehicle Manufacturers Association of the
United States, Inc. v. State Farm Mutual Automobile Insurance
Co., 463 U.S. 29, 41, 103 S.Ct. 2856, 2865, 77 L.Ed.2d 443
(1983) (citing 5 U.S.C. § 706(2)(A)). An agency rule will be deem-
ed arbitrary and capricious if “the agency has relied on factors
which Congress has not intended it to consider, entirely failed to
consider an important aspect of the problem, or offered an ex-
planation for its decision that runs counter to the evidence before
the agency.” Id. at 43, 103 S.Ct. at 2867. It is well settled that
in examining the agency’s actions under the arbitrary-and-
capricious standard, we must confine our “searching and careful”
review, see Citizens to Preserve Overton Park, Inc. v. Volpe, 401
U.S. 402, 416, 91 S.Ct. 814, 824, 28 L.Ed.2d 136 (1971), to the
evidence in the record. The agency record must reflect an ade-
quate and reasonable basis for the decision, including considera-
tion of all relevant factors. State Farm, 463 U.S. at 43, 103 S.Ct.
at 2866; ILGWU v. Donovan, 722 F.2d 795, 822 (D.C. Cir.
1983), cert. denied sub nom. Breen v. ILGWU, 469 U.S. 820, 105
S.Ct. 93, 83 L.Ed.2d 39 (1984). The reviewing court must judge
the reasons and justifications the agency presents for its action and
not supply a reasoned basis where the agency itself has provided
none. SEC v. Chenery Corp., 332 U.S. 194, 196, 67 S.Ct. 1575,
1577, 91 L.Ed. 1995 (1947). “[I]t is the agency’s responsibility,
not this [c]lourt’s, to explain its decision.” State Farm, 463 U.S.
at 57, 103 S.Ct. at 2874.
A
New York contends that the Secretary arbitrarily failed to ade-
quately consider.the alternative of permitting both mandatory
usage laws (MULs) and a federal passive restraint standard. Maj.
Op. at 480 n. 9 (citing New York Brief at 25-27). The majority
incorrectly subsumes this claim into petitioners’ challenge to the
automatic rescission feature of the Secretary’s Rule. Maj. Op. at
480 & n. 9. Inso doing, the majority concludes that the claim is
“not ripe for review.” Maj. Op. at 480. Were I to agree that New
34a
York's claim is nothing more than an attack on the reasonableness
of the “trapdoor” provision, I would concur in my colleagues’
determination that the court must decline review of this issue, just
as they have done when the other petitioners made this assertion.
However, I believe the challenge is part of New York’s conten-
tion that “the Final Rule is more lenient (and therefore less pro-
motive of automobile safety) than is justified by the record.” See
Maj. Op. at 485.
New York is not questioning the safety effectiveness of MULs
per se — an issue which need not be reached unless and until the
trapdoor opens. Rather, it is challenging the Secretary's design
of a passive restraint requriement upon consideration of only an
either/or alternative, without also examining a combination ap-
proach. New York argues that the evidence in the record suggests
that the combination of MULs plus passive restraints would pro-
vide greater safety benefits than the MUL-or-passive restraint op-
tion. That the Secretary effectuated her design through the
automatic rescission provision does not change the import of the
claim. Nor, in my estimation, does it affect the claim’s timeliness.
If the argument proves true, “then many people, including New
York citizens, may be adversely affected in the most direct way
by the Secretary’s failure to require greater protection.” See Maj.
Op. at 485. Thus, even under the majority’s reasoning, this issue
is ripe for review. See id. Furthermore, upon examination of the
record, I conclude that the agency’s decision to reject this alter-
native is devoid of any meaningful support.
B
During the most recent round of rulemaking, numerous com-
mentators argued that passive restraints should be viewed in con-
junction with and not as an alternative to state laws requring
seatbelt use. See 49 Fed.Reg. 28,999 (1984). These comments
were given passing address. In the fifty-page record, the Secretary
responded with a one sentence indirect retort:
This argument ignores both the public acceptability
concerns set forth above and the incentive for passage
35a
of such laws—to the extent there is significant con-
sumer resistance to automatic protection devices —
created by the department’s approach.
Id. Examination of this option is nil. Instead, the Secretary stead-
fastly maintained that either automatic occupant protection or
MULs covering two-thirds of the population would meet the
“standards of the Act” and “carry out the objective and purpose
of the statute,” so long as the MULs met the Department’s
criteria. Id. Playing these alternatives against one another rather
than in tandem led the Secretary to adopt the MUL rescission pro-
vision. She based her action on the Department’s conclusion that
“coverage of a large percentage of the American people by
seatbelt laws that are enforced would largely negate the in-
cremental increase in safety to be expected from an automatic
protection requirement.” Jd. at 28,997. There are two problems
with this conclusion.
First, it is completely unsupported, if not contradicted, by the
relevant data. Nowhere in the record does the Department ex-
plain how it concluded that the incremental safety benefits of
passive restraints, as compared to MULs alone, would not be
worth the cost. To the contrary, the Department's regulatory im-
pact analysis strongly suggests that passive restraints could well
be cost-beneficial even if states passed MULs; it concedes that the
combination could maximize both short-term and long-term safe-
ty benefits. See 19.4 Final Regulatory Impast Analysis at VI-29
to -30 (J.A. 250-52); see also 49 Fed. Reg. at 28,991 (noting the
advantages of passive restraints combined with seatbelt use). It
stands to reason that only a combination of the two methods
would ensure that the safety benefits are afforded the citizens and
travellers in those states that did not enact MULs. Thus, contrary
to the Department’s conclusion, the evidence indicates that safety
would be enhanced by permitting the two regulatory schemes to
coexist.
Second, the Department’s finding does not support the
automatic rescission of the passive restraint requirement upon
passage of MULs covering two-thirds of the states. Indeed, it can-
not be supported in advance of any opportunity to assess the
36a
actual effect of state MULs in operation. The Department noted,
“in order for it to accept MULs as an alternative to requiring
automatic crash protection, MULs must provide a level of safe-
ty equivalent to that which would be expected to be pro-
vided . . . by the automatic system.” 49 Fed. Reg. at 28,999 (em-
phasis added). The Department’s conclusion that MULs can be
as effective as passive restraints standing alone, although sup-
ported by an extraordinarily thin record, must be respected. But
this again formulates the inquiry only in terms of an either/or ap-
proach. Particularly given the fact that at the time of reporting
only one American state had ever required seatbelt usage, it seems
surpassingly capricious for the Department to decide that MULs
covering only two-thirds of the population would render passive
restraints superfluous. If MULs actually prove to be workable and
so safety-effective that passive restraints are unnecessary, the
Department can always rescind the passive restraint requirement
at some later date — when there is hard evidence to prove what
is now a most doubtful prediction. .
In its second justification for dismissing a passive restraint-plus-
MUL option, the Department noted tersely that the passive
restraint-or-MUL approach both addresses the “significant con-
sumer resistance” to automatic protective devices and offers states
an “incentive” to pass MULs. The Secretary apparently believed
that promulgating a passive restraint along with promotion of
state MULs would both meet with intense public resistance to
passive restraints and prevent her from effectively encouraging
MUL enactment. Hence, neither element of the scheme would
be accomplished. The Secretary’s reasoning is far from com-
prehensible. To the extent it can be pieced together, it lacks
record support.
In defending her treatment of the two safety protection
methods as alternatives rather than as complements, the
Secretary emphasized her belief in the importance of providing
some local option in the decision-making. The “option” open to
states is to express their preference for MULs over automatic oc-
cupant protection by passing such laws. The Department
“believe[d] that offering this ‘option’ should lessen any public
a ee
37a
resistance to an automatic occupant protection requirement.
Having some ability to choose one alternative over the other
should make both alternatives more acceptable.” Jd. at 28,999.
The evidence simply can not bear this strained reasoning.
In the same rulemaking preamble, the Department conclud-
ed that there was no reason to expect the passive restraint require-
ment would create significant “public acceptability concerns” or
“consumer resistance.” Jd. at 29,002-01. Nor did it expect any
negative reaction to passive restraints to seriously impede their
efficacy. Id. at 28,989. Consequently, the Secretary had no basis
for concluding that the MUL-only alternative was necessary to
sweeten the passive restraint pill, or that state legislatures would
be encouraged to pass MULs by the prospect of avoiding passive
restraints. In fact, it is unclear why the Department thought the
states needed to be encouraged at all to pass MULs. According
to the record, the Department was impressed by evidence that
public support for highway safety laws was growing steadily and
dramatically. See id. at 28, 994.
The evidence appears to run counter to the Secretary’s in-
centive objective. New York contends that states would pass more
stringent MULs but for the Secretary’s trapdoor. Indeed, events
since the Rule’s promulgation indicate that New York is correct.
The states that have passed MULs have designed weaker, less
comprehensive statutes so as to avoid compliance with the Rule’s
criteria for consideration in the two-third’s trapdoor figure. Other
states have gone even further and provided for automatic repeal
of their MULs should the Department count their populations
toward the automatic rescission provision. New York Supp. Brief
at 6.
Regardless of the reasonableness of the incentive device, the
either/or scheme arrived at by the Secretary raises a serious
statutory problem. The Secretary’s overt intent in implementing
the provision was to affect state legislation, specifically state
legislation regulating driver behavior. That is a regulatory design
specifically withheld from the Secretary by the statute under
which she acted.
38a
It is axiomatic that in implementing legislation the Secretary
must perform in accordance with Congress’ purposes in enacting
the legislation. See Pacific Legal Foundation v. Department of
Transportation, 593 F.2d 1338, 1343 (D.C.Cir.), cert. denied,
444 U.S. 830, 100 S.Ct. 57, 62 L.Ed.2d 38 (1979); SEC v.
Chenery Corp., 332 U.S. 194, 67 S.Ct. 1575, 91 L.Ed. 1995
(1947). Accordingly, in reviewing the Department’s decision we
must ensure that the agency has “remain{ed] within the bounds
of [its] delegated authority.” See Office of Communication of
United Church of Christ v. FCC, 707 F.2d 1413, 1422-23
(D.C.Cir.1983). Neither the ingenuity nor the efficacy of a
regulatory scheme can save it from challenge as unauthorized
action.
Both the language and legislative history of the National Traf-
fic and Motor Safety Act of 1966 (the Act), 15 U.S.C. §§ 1381 et
seq. (1982), posit that Congress has authorized the Department
to adopt automobile safety standards which mandate per-
formance characteristics of equipment and vehicles — exclusively.
The Act directs the Secretary to establish “motor vehicle safety
standards,” id. § 1392(a), defined as “a minimum standard for
motor vehicle performance, or motor vehicle equipment perfor-
mance. . .,” id. § 1391(2). “ ‘Motor vehicle safety’ means the per-
formance of motor vehicles or motor vehicle equipment. . . .”
Id. § 1391(1). Behavior of drivers is not within the permitted
scope of safety standards under the Act. Nor did the statute con-
template that the Secretary would delegate any of her automotive
safety standards authority to the states. Nor did Congress intend
such results.
When Congress has sought to permit the Secretary to influence
driver behavior it has specifically authorized her to structure state
programs. For example, pursuant to the Highway Safety Act of
1982, 23 U.S.C. §§ 401 et seq. (1982), states must submit to the
Secretary for approval driver education programs designed to
reduce traffic accidents and resultant losses. Congress explicit-
ly provided that “[s]uch programs shall be in accordance with
uniform standards promulgated by the Secretary.” It then went
on to outline the performance criteria which she is to employ in
39a
designing the standards. Id. § 402(a). Similarly, Congress itself
has set up incentive schemes when it intended the Secretary to
implement federal safety standards by delegating her authority
to the states. The Surface Transportation Assistance Act of 1978,
23 U.S.C. §§ 101 et seq. (1982), offers the best example. There
Congress provided that the Secretary may not approve federal
funds for highway construction and repairs in any state which
has a maximum speed limit above fifty-five miles per hour. Jd.
§ 154(a). Congress adopted a more direct incentive in its ap-
proach to the drunk driving problem. It directed the Secretary
to make grants to “states which adopt and implement effective
programs to reduce traffic safety programs resulting from per-
sons driving while [intoxicated or under the influence of drugs].”
Id. § 408. Congress then spelled out the minimum statutory pro-
visions that the state must adopt in order to be eligible.
When Congress intends to authorize such action by the
Secretary it says so in no uncertain terms. The authority cannot
be implied. See Calvert Cliffs’ Coordinating Committee, Inc. v.
Atomic Energy Commission, 449 F.2d 1109, 1122-27 (D.C.Cir.
1971). There are no parallel provisions in the National Traffic and
Motor Vehicle Safety Act.
With the Act, Congress meant to shift the focus of federal
automobile safety regulation away from the prior concern over
the driver's actions and capacity and toward the “role of the car
itself.” S.Rep. No. 1301, 89th Cong., 2d Sess. 6 (1966), reprinted
in 1966 U.S. Code Cong. & Ad. News 2710. The Supreme Court,
in referring to the Department's power to adopt safety standards
under the Act, observed that “Congress decided that at least part
of the answer [to the problem of highway deaths and injuries] lies
in improving the design and safety features of the vehicle itself.”
State Farm, 463 U.S. at 33, 103 S.Ct. at 2861. Since safety
features would become effective automatically, regardless of
human action or inaction, it was hoped that the benefits would
be more readily felt. Regulation of driver behavior was left to the
states.
In response to New York’s challenge to her statutory authori-
ty, the Secretary contends that she is permitted to take state safety
laws into account in determining whether federal standards will
40a
be “appropriate.” This is unquestionably true, but misses the
mark. While she may consider the effect of state laws which
govern driver behavior, she may not seek to affect state laws
which govern driver behavior. Mandatory seatbelt use laws
regulate behavior, they render failure to “buckle-up” illegal and
punishable. The MUL-or-passive restraint provision not only is
intended to “encourage” states to adopt MULs, 49 Fed. Reg. at
28,998, 28,999, but it also seeks to set the terms of the regulation,
to define the scope of the illegality and severity of the punishment.
See 49 C.F.R. § 571.208-S4.1.5.2 (1984) (setting out the four con-
ditions necessary for MUL compliance with the provision). This
“incentive” is provided to fulfill the safety objectives of the Act.
49 Fed. Reg. at 28,999. Such attempts at indirect regulation of
driver (not to mention passenger) behavior traverses the bounds
of the Department’s statutory authority.
In sum, the Secretary’s disregard for the coexistence of MULs
and a passive restraint requirement is arbitrary and capricious
for two reasons. First, the Department failed to substantiate its
conclusion that MULs covering only two-thirds of the population
would be more beneficial than an automatic restraint require-
ment combined with promotion of MULs; it overlooked the
evidence that the combination might greatly increase lives saved
and injuries prevented, compared to either method alone, let
alone MULs covering only two-thirds of the population. Second,
the Secretary's “incentive” approach is outside the agency’s man-
date under the Act in that its intent, if not its effect, is to influence
driver behavior at the state level and its methodology is through
delegation of strictly federal authority to the states.
II
A
New York urges the court to hold that the evidence can only
reasonably support the requirement of a nondetachable
automatic belt. The majority disparages New York's arguments.
Based on the Secretary’s stated justifications, it upholds her deci-
sion to allow satisfaction of the passive restraint requirement
4la
through installation of detachable automatic belts. Maj. Op. at
487. I cannot understand her reasoning and agree with New York
that the evidence all points the other way.
The Secretary reasoned that non-detachable belts are the most
coercive passive restraints, and would therefore cause the
strongest negative public reaction. 49 Fed. Reg. at 28,993,
29,002. As the majority correctly states, the Secretary may ap-
propriately “weigh [this consideration] in the balance.” See Maj.
Op. at 487. But the relevant data supports neither the Secretary’s
“weighing” process nor her subsequent conclusion that detachable
belts should be permitted.
The Secretary indicated that 10 to 20 percent of the public
might cut non-detachable belts. 49 Fed. Reg. at 28,993. Never-
theless, she concluded that a large proportion of the public would
remain protected by non-detachable belts. See id. at 29,003. The
Secretary does not explain why this situation is not more pro-
tective of safety than detachable belts in all cars. Indeed, she can-
not rationally explain why without first finding what percentage
of the population would detach detachable belts. Obviously, if
more than twenty percent of the public will not use detachable
belts, the safety factor is clearly in favor of the non-detachable
option. The evidence seems to indicate that more people will
detach detachable belts than will sever non-detachable ones. See
id. at 28,984. Thus, upon a fair viewing of the record, the non-
detachable scenario appears to offer greater protection.
The Secretary offered a second rationale which the majority
also finds convincing. She judged that non-detachable belts
would require manufacturers to eliminate the center front seat,
noting that “[t]here is no commercially developed technology to
provide an automatic belt for the center seat.” Jd. at 28,993.
While the manufacturers’ contention was disputed, even if it is
fully accurate it does not provide a complete rationale for the re-
jection of a non-detachable belt mandate.
Congress charged the Secretary with the protection of safety.
See 15 U.S.C. § 1392; State Farm, 463 U.S. at 55, 103 S.Ct. at
2873. Although the Act permits the Secretary to consider whether
42a
the proposed standard is “reasonable, practicable and ap-
propriate” for the automobile for which it is prescribed, “(t]he
Act intended that safety standards not depend on current
technology and could be ‘technology-forcing’ in the sense of in-
ducing the development of superior safety design.” State Farm,
463 U.S. at 49, 103 S.Ct. at 2870 (admonishing the Department
for creating more lenient standards in response to auto manufac-
turers’ unwillingness to comply with safer devices). New York and
the record suggest that technology already exists to alleviate the
supposed problem. The Act directs the Secretary to “consider rele-
vant available motor vehicle safety data” in establishing her stan-
dard. 15 U.S.C. § 1392(f)(1). She may not sacrifice safety by fail-
ing to weigh all the relevant factors of each viable alternative.
The Secretary never balanced the “center-seat problem”
against the non-detachable belt’s advantages. She stressed only
their disadvantages. See 49 Fed. Reg. at 28,992-93, 29,002. Fur-
thermore, she overlooked evidence which mitigates the detrac-
tions of the option. For example, elsewhere in the report, the
Secretary noted that fewer than one-third of the cars sold in 1982
had center front seats and the number has been steadily declin-
ing. The center seat is rarely used and the vast majority of its oc-
cupants are small children who are covered independently by
mandatory automatic child restraint laws in all but two states.
Id. at 28,996. The relative number of cars and passengers affected
by any inconvenience would appear to be very small, when com-
pared with the increase in lives saved through increased use of
non-detachable belts. See id. at 28,984.
Having failed to fairly view the relevant data before her and
adequately balance the evidence in reaching her conclusion, the
Secretary has abdicated her statutory duty to implement laws
which enhance automobile safety. Accordingly, her decision to
not require non-detachable seatbelts is arbitrary and capricious.
B
New York also challenges the Secretary’s refusal to mandate
installation of airbags in all automobiles. The majority upholds
43a
the Secretary’s decision, simply noting that the Secretary conclud-
ed that airbags’ safety would not be worth their high cost. See
Maj. Op. at 488. I believe that the Secretary’s decision “runs
counter to the evidence before the agency” and therefore con-
stitutes arbitrary and capricious rulemaking. See State Farm, 463
U.S. at 43, 103 S.Ct. at 2866.
As the Department noted, “[a]irbags offer a distinct advantage
over other occupant restraints in that they ensure a usage rate of
nearly 100 percent for both drivers and passengers.” 49 Fed. Reg.
at 28,991. According to the Department’s research, under any
reasonable scenario airbags save more lives than any other
restraint. In addition, airbags prevent more moderate and critical
injuries than do seatbelts. See id. at 28,984-86 & Table 5 (com-
paring relative effectiveness of airbags, seatbelts and automatic
restraints). Despite this evidence of the superiority of airbags, the
Secretary ultimately declined to require them.
The Secretary proffered two rationales for her decision. First,
she cited financial cost. Id. at 28,990-01. The Department
estimated that installation of airbags in all three front seat posi-
tions of a car would cost $320 more per car than manual belts.
The majority also notes that the estimated replacement cost of
a deployed airbag is $800. Maj. Op. at 488. The majority credits
the Secretary’s conclusion that “[i]n light of these cost
estimates, . . . the safety benefits of airbags would not be worth
their high cost.” Maj. Op. at 488. The conclusion cannot be
reached from the facts that are used.
The majority reiterates the Secretary’s conclusion that the
replacement cost of airbags “mak([es] it likely that many airbags
would not be replaced once used.” Maj. Op. at 488. The pre-
sumed result is that “there would be no protection for the front
seat occupants of [that] automobile.” 49 Fed. Reg. at 29,001. I
think the argument is almost silly. As the Department itself con-
cedes, few airbags are inadvertently deployed. 49 Fed. Reg. at
28,984. The vast majority are deployed due to sudden decelera-
tion from moderate or high speeds. Often this deceleration will
be caused by or result in frontal impact. Some of these cars will
44a
be totalled and the cost of installing new airbags is moot. In the
Department’s own estimation, even when not allowing for
wrecked cars, few cars would be affected by the high cost of
replacement. See id. at 28,984 (non-replacement together with
dismantling would leave only 2 percent of all cars without bags
at any one time).
As to those cars that are worth repairing after a front-end col-
lision in which the airbags were deployed, the Department failed
to recognize that it should be considering aunique sub-group of
the population. In accepting the Secretary's reasoning, the ma-
jority relies upon the Department's finding “that ‘only a small
percentage [of the public] appears willing to pay more than
$400’ ” for airbags. Maj. Op. at 488, quoting 49 Fed.Reg. at
28,988. Surely this opinion poll might yield different results if the
“public” was comprised of those who had previously been pro-
tected in accidents by deployed bags. The record does not indicate
how resistant the consumer would be to paying $800 to replace
the devices that saved the car’s occupants from death or serious
injury. If speculation were in order, I would venture that such
a consumer would find $800 a reasonable investment.
Similarly, the Secretary mistakenly characterized the installa-
tion costs of airbags as being unacceptable to the public. The
Department's $320 estimate falls well within the range found ac-
ceptable in its public opinion survey. See 49 Fed. Reg. at 28,988
(“a range of approximately $150-350”). Admittedly, as the ma-
jority points out, automobile manufacturers’ cost estimates are
higher, but the record notes much lower estimates as well. Id. at
28,990. The Department specifically concluded that “[tjhe costs
of existing automatic restraint systems [including airbags] are
reasonable. . . . ” Jd. at 28,996. And yet the Secretary inex-
plicably finds the cost of airbags prohibitive.
In sum, the agency has misapplied the cost-benefit analysis dic-
tated by the Act, and therefore is not due the deference to its “ex-
pertise” which the majority confers. As the majority observes,
Maj. Op. at 488, the Suprer-+ Court noted in State Farm that
“[t]he agency is correct to look at the costs as well as the benefits
45a
of Standard 208.” 463 U.S. at 54, 103 S.Ct. at 2872. But the Court
also reminded the Department that when considering the
reasonableness of the costs, it “should bear in mind that Congress
intended safety to be the pre-eminent factor under the Act.” 463
U.S. at 55, 103 S.Ct. at 2873 (citing H.R. Rep. No. 1776, 89th
Cong., 2d Sess., 16 (1966)). The Court construed the Act as man-
dating an effective safety measure unless its incremental costs are
more than minimal. See id. at 54-55, 103 S.Ct. at 2872-2873. The
Secretary appears to have eschewed this advice. She focused on
costs, not safety. The $320 incremental cost for airbags in con-
text appears minimal. The agency’s fears that the public may re-
sent paying more for airbags do not reasonably override the agen-
©y’s own findings regarding the superior safety-effectiveness of
airbags. Cf. S.Pep. No. 1301, 89th Cong., 2d Sess. 6 (1966),
reprinted in 1966 U.S. Code Cong. & Ad.News 2709, 2714 (“safe-
ty shall be the overriding consideration in the issuance of
standards”).
The Secretary’s second rationale for rejecting an airbag re-
quirement is a forecasted lack of public enthusiasm. The
Secretary noted, and the majority recounts, public fears regard-
ing airbags — fears which the Department admits “can be ade-
quately addressed.” 49 Fed. Reg. at 29,001. In her explanation
of the Final Rule, however, the Secretary fails to note, or ap-
parent'y give any weight to, the Department's finding that “[a ]ir-
bags were rated highest [among manual belts, automatic belts
and airbags] on comfort, convenience and appearance and were
perceived to be safer than other restraint systems by infrequent
belt users.” Id. at 28,988. Thus, even on the public acceptabili-
ty factor alone, the evidence is at best mixed for and against
airbags.
The agency is entitled to consider anticipated adverse public
reaction. See Pacific Legal Foundation, 593 F.2d at 1345.
However, it may not extract only negative predictions and
posture them as explanations for rejecting highly superior safe-
ty devices. The majority would permit the Secretary to leave the
determination to the “real-world experience [of] the
marketplace.” Maj. Op. at 488. This solution seems facile.
46a
The Act charges the Secretary with meeting the needs of motor
vehicle safety. Here, the Secretary has considered only one side
of an argument that at best bears only tangentially on her deci-
sion and has given it paramount importance.
The record is overwhelming that airbags would save more lives
and prevent more injuries than automatic belts or any reasonable
scenario of seatbelt use. The Secretary has inadequately explained
her reasons for reaching a finding which is at odds with this
evidence. Neither justification she advances provides a sufficient
basis for not requiring airbags in all automobiles. There is no “ra-
tional connection between the facts found and the choice made.”
See State Farm, 463 U.S. at 42, 103S.Ct. at 2866 (quoting Bur-
lington Truck Lines, Inc. v. United States, 371 U.S. 156, 168, 83
S.Ct. 239, 246, 9 L.Ed.2d 207 (1962)). Thus, the Secretary’s deci-
sion should be vacated as arbitrary and capricious.
C
Finally, New York claims that the Secretary acted arbitrarily
and capriciously in failing altogether to consider, let alone adopt,
the alternative of requiring both airbags and non-detachable
automatic belts. The majority makes a specious argument that
the Secretary did consider this alternative and then concludes that
she acted appropriately in rejecting the option. I find that the
Secretary “entirely failed to consider [this] important aspect of
the problem.” See State Farm, 463 U.S. at 43, 103 S.Ct. at 2867.
The majority states that the Secretary’s discussion of the
weaknesses of non-detachable belts was intended to both show
that detachable belts should be a means of compliance under the
Rule and respond to the argument that non-detachable belts
should be required together with airbags. The majority then
sketches its three reasons for this conclusion. Maj. Op. at 489.
First, the majority opines that individual weaknesses of airbags
and non-detachable belts are germane to the desirability of re-
quiring both. This ignores the possibility that the individual!
weaknesses might be alleviated by requiring both, in tandem.
47a
Specifically, research noted in the record has found that airbags
function very well in non-catastrophic, frontal collisions up to
speeds of 45 miles per hour, but are less effective in side or angle
impacts, rollovers, and catastrophic frontal crashes. 49 Fed. Reg.
at 28,986. The Department thus concluded, “the most effective
system is an airbag plus a lap and shoulder belt. To obtain maxi-
mum protection in not only frontal, but also side and roll over
accidents, occupants of cars with airbags and lap belts must use
a lap belt to supplement the airbag.” Id. In these types of colli-
sions seatbelts would fill in for the low effectiveness of airbags.
Even at the 12.5 percentage usage estimated for manual belts,
the Department postulated that many more lives would be saved
by acombination of airbags and belts than by any one alternative
means used alone. See id. at 28,986, Table 5; page 13 supra. The
record, otherwise replete with estimates, data and analysis, does
not once attempt to analyze the consequences of combining air-
bags with non-detachable belts, where usage, according to the
record, is at least 80 percent.
The second reason postulated by the majority is that the
Secretary expressly invoked her earlier discussion of various alter-
natives, including requiring airbags for all cars. The majority er-
roneously believes this is responsive to the claim that both airbags
and non-detachable belts should be required. The possibility that
the relevant data would change when options are considered
together or in groups was never examined by the Secretary.
Third, the majority claims that the section’s title “Airbags
and/or Non-Detachable Seatbelt,” indicates an intent to address
the option of requiring airbags and non-detachable seatbelts. In-
ferring intent from two words in the section title not only seems
tenuous at best, but incorrectly assumes that intent is as good as
act. If the Secretary failed to address this option, even if she in-
tended to, she cannot be said to have considered the option. The
plain words within the section belie the majority’s interpretation:
“The rationals [sic] provided in the preceding sections for adopt-
ing 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 Department's decision not to amend the old rule to
48a
require either airbags or nondetachable belts or just
nondetachable belts.” 49 Fed.Reg. at 29,002 (referring to the
agency’s decision to give automobile manufacturers an option
rather than mandate any one method). The broken grammar,
spelling and syntax suggest the lack of consideration that was
given to the whole subject of airbags. There is not a word about
the option of airbags plus non-detachable automatic belts.
The Final Rule is not merely slightly unclear on the issue, as
the majority would have us believe. It is silent. Given the
Secretary’s lack of consideration, the majority’s enigmatic state-
ment as to the reasonableness of her “decision” is extravagant -
praise for non-performance.
Ill
The subject of how to enhance automobile safety remains the
controversial subject it has always been. Congress has wrestled
with it in numerous contentious and agonizing battles. No
statutory proposal has ever commanded universal enthusiasm,
and the statutes on the books have been criticized for what they
contain and for what they lack. It is not for the agency or the
courts to settle these basic policy disputes. Rather, both branches
of government have an obligation to apply and enforce the man-
dates that Congress has laid down. Because, as New York con-
tends, the agency failed to do so, and because my colleagues have
given these agency failures a pass, I dissent.
49a
Tuesday
July 17, 1984
FEDERAL REGISTER
Part Il
Department of
Transportation
National Highway Traffic Safety
Administration
49 CFR Part 571
Federal Motor Vehicle Safety Standard;
Occupant Crash Protection; Final Rule
50a
DEPARTMENT OF TRANSPORTATION
National Highway Traffic Safety
Administration
49 CFR Part 571
(Docket No. 74-14; Notice No. 36)
Federal Motor Vehicle Safety
Standard; Occupant Crash Protection
Agency: Department of Transportation
(DOT).
Action: Final rule.
Summary: This Rule requires the installation of automatic
restraints in all new cars beginning with modei year 1990
(September 1, 1989) unless, prior to that time, state mandatory
belt usage laws are enacted that cover at least two-thirds of the
U.S. population. The requirement would be phased in by an
increasing percentage of production over a three-year period
beginning with model year 1987 (September 1, 1986). To
further encourage the installation of advanced technology, the
rule would treat cars equipped with such technology other
than automatic belts as equivalent to 1.5 vehicles during the
phase-in.
Dates: The amendments made by this rule to the text of the
Code of Federal Regulations are effective August 16, 1984.
The principal compliance dates for the rule, unless two-
thirds of the population are covered by mandatory use laws,
are:
Septernber 1, 1986—for phase-in requirement.
September 1, 1989—for full implementation requirement.
In addition: February 1, 1985—for center seating position
exemption from automatic restraint provisions.
~
Dla
Address: Petitions for reconsideration should refer to the
docket and notice numbers set forth above and be submitted
not later than August 16, 1984 to: Administrator, National
Highway Traffic Safety Administration, 400 Seventh Street.
SW., Washington, D.C. 20590.
For Further Information Contact:
Neil R. Eisner, Assistant General Counsel for Regulation and
Enforcement, Department of Transportation, 400 Seventh
Street, SW., Washington, D.C. 20590 (302-426-4723).
52a
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Summary of the Final Rule.
II. Background.
A. Introduction.
1. The Supreme Court Decision.
2. The 1983 Suspension.
3. The NPRM
4. The SNPRM.
B. The Statute.
C. The Safety Problem.
D. Current Occupant Protection Technology.
1. Manual Belts.
2. Automatic Belts.
3. Airbags.
4. Other Occupant Protection Technologies.
III. Summary of the Public Comments.
A. Introduction.
B. Occupant Protection Systems.
1. Usage.
Effectiveness.
Benefits.
Public Acceptance.
Cost and Leadtime.
Insurance Premium Changes.
Other Issues.
a. Product Liability.
b. Sodium Azide.
c. Breed System.
d. Automatic Belt Detachable.
C. Alternatives.
1. Retain.
af Ae PP
53a
Amend.
a. Airbag only.
b. Airbags and Nondetachable Automatic
Seatbelts.
c. Passive Interiors.
d. Small Cars.
e. Center Seating Position.
Rescind.
Demonstration Program.
Mandatory Belt Use Laws.
a. General.
b. SNPRM Alternative: No Automatic Restraint.
c. SNPRM Alternative: Automatic Restraint.
D. Test Procedures.
8.
IOS Oh &
Repeatability.
Design to Conform.
Thirty Degree (30°) Oblique Test.
Adequacy of the Part 572 Dummy.
Adoption of NCAP Test Procedures.
Head Injury Criteria (HIC) Measurements.
Testing of Safety Belts.
Impact Test Speed.
IV. Analysis of the Data.
A. Usage of Occupant Protections System.
oD
PONE mob ope
General.
Manual Belts.
Automatic Belts.
Airbags.
Other Occupant Protection Technologies.
ffectiveness of Occupant Protection Systems.
. General.
. Manual Belts.
. Automatic Belts.
. Airbags.
54a
5. Other Occupant Protection Technologies.
6. Conclusion.
C. Benefits of Occupant Protection Systems.
1. Safety Benefits.
2. Insurance Savings.
D. Public Acceptance of Occupant Protection
Systems.
E. Cost and Leadtime for Occupant Protection
Systems.
1. Equipment.
a. General.
b. Manual Lap and Shoulder Belts.
c. Automatic Belts.
d. Airbags.
e. Other Occupant Protection Technologies.
2. Investment.
3. Insurance.
4. Economic Impact.
_._— _V. Analysis of the Alternatives.
E. General.
Introduction.
Airbags.
Nondetachable Automatic Seatbelts.
Detachable Automatic Seatbelts.
Demonstration Program.
Mandatory State Safety Belt Usage Laws.
Legislation to Require Consumer Option.
. Airbag Retrofit Capability.
Passive Interiors.
. Center Seating Position.
B. Rationale for Adoption of the Rule.
1. The Requirement for Automatic Occupant
Restraints.
2. Center Seating Position.
_
SPs eowrer pyr
50a
3. Mandatory Use Law Alternative.
4. The Phase-in.
5.
The Credit for Non-Belt Restraints.
C. Rationale for Not Adopting Other Alternatives
i
2.
ID Ol ym Oo
Retain.
Amend.
a. Airbags only.
b. Airbags and/or Nondetachable Automatic
Seatbelt.
c. Limited Seating Positions.
d. Small Cars.
Rescind.
Demonstration Program.
Other Mandatory Use Law Alternatives.
Legislation to Require Consumer Option.
Airbags Retrofit Capability.
VI. Testing Procedures.
A. Repeatability.
B. Compliance Procedure.
C. Test Dummies.
D. Injury Criteria.
E. Oblique Test Requirement.
F. Other Test Procedure Issues.
VIL. Regulatory Impacts.
VIII. The Rule.
56a
I. Summary of the Final Rule
After a thorough review of the issue of automobile occupant
protection, including the long regulatory history of the matter,
the comments on the Notice of Proposed Rulemaking (NPRM)
and the Supplemental Notice of Proposed Rulemaking
(SNPRM); and extensive studies, analyses, and data on the
subject; and the court decisions that have resulted from law
suits over the different rulemaking actions, the Department of
Transportation has reached a final decision that it believes will
offer the best method of fulfilling the objectives and purpose
of the governing statute, the National Traffic and Motor Vehi-
cle Safety Act. As part of this decision, the Department has
reached three basic conclusions:
e Effectively enforced state mandatory seatbelt use laws
(MULs) will provide the greatest safety benefits most
quickly of any of the alternatives, with almost no additional
cost.
e Automatic occupant restraints provide demonstrable
safety benefits, and, unless a sufficient number of MULs are
enacted, they must be required for the most frequently used
seats in passenger automobiles.
e Automatic occupant protection systems that do not
totally rely upon belts, such as airbags or passive interiors,
offer significant additional potential for preventing fatalities
and injuries, at least in part because the American public is
likely to find them less intrusive; their development and
availability should be encouraged through appropriate
incentives.
As a result of these conclusions, the Department has
decided to require automatic occupant protection in all
passenger automobiles based on a phased-in schedule begin-
ning on September 1, 1986, with full implementation being
required by September 1, 1989, unless, before April 1, 1989,
two-thirds of the populauon of the United States are
57a
covered by MULs meeting specified conditions. More spe-
cifically, the rule would require the following:
Passenger cars manufactured for sale in the United States
after September 1, 1986, will have to have automatic occu-
pant restraints -ased on the following phase-in schedule:
e Ten percent of all automobiles manufactured after
September 1, 1986.
e Twenty-five percent of all automobiles manufactured
after September 1, 1987.
e Forty percent of all automobiles manufactured after
September 1, 1988.
e One-hundred percent of all automobiles manufactured
after September 1, 1989.
e The requirement for automatic occupant restraints will
be rescinded if MULs meeting specified conditions are
passed by a sufficient number of states before April 1, 1989
to cover two-thirds of the population of the United States.
e During the phase-in period, each passenger automobile
that is manufactured with a system that provides automatic
protection to the driver without automatic belts will be
given an extra credit equal to one-half of an automobile
toward meeting the percentage requirement.
e The front center seat of passenger cars will be exempt
from the requirement for automatic protection.
e Rear seats are not covered by the requirements for
automatic protection.
II. BACKGROUND
Introduction
The Supreme Court Decision
On October 23, 1981, the National Highway Traffic Safety
Administration (NHTSA) issued an order pursuant to sec-
tion 103 of the National Traffic and Motor Vehicle Safety Act,
58a
15 U.S.C. 1392, amending Federal Motor Vehicle Safety Stan-
dard No. 208, Occupant Crash Protection (49 CFR 571.208;
“FMVSS 208”), by rescinding the provisions that would have
required the front seating positions in all new cars to be
equipped with automatic restraints (46 FR 53419; October 29,
1981).
On June 24, 1983, the Supreme Court held that NHTSA’s
rescission of the automatic restraint requirements was arbi-
trary and capricious. Motor Vehicle Manufacturer's Associa-
tion v. State Farm Mutual Automobile Insurance Co., 103
S.Ct. 2856. The agency had rescinded because it was unable
to find that more than minimal safety benefits would result
from the manufacturers’ plans to comply with the require-
ment through the installation of automatic belts. In particular,
the Court found the agency had failed to present an adequate
basis and explanation for rescinding the requirement. The
Court also stated that the agency must either consider the
matter further or adhere to or amend the standard along the
lines that its “reasoned analysis’ and explanation supports.
By a five to four vote, the Court held that the agency had
been too quick in dismissing the benefits of detachable auto-
matic belts. The Court stated that the agency's explanation of
its rescission was not sufficient to enable the Court to conclude
that the agency's action was the product of reasoned decision
making. The Court found that the agency had not taken
account of the critical difference between detachable auto-
matic belts and current manual belts. “A detached passive
belt does require an affirmative act to reconnect it, but—
unlike a manual seatbelt—the passive belt, once reattached,
will continue to function automatically unless again
disconnected.”
The Court unanimously found that, even if the agency was
correct that detachable automatic belts would yield few
benefits, that fact alone would not justify rescission. Instead, it
59a
would justify only a modification of the requirement to pro-
hibit compliance by means of that type of automatic restraint.
The Court also unanimously held that having concluded that
detachable automatic belts would not result in significantly
increased usage, NHTSA should have considered requiring
that automatic belts be continuous (i.e., nondetachable)
instead of detachable, or that FMVSS 208 be modified to
require the installation of airbags.
|
The 1983 Suspension
On September 1, 1983, the Department suspended the auto-
matic restraint requirement for one year to ensure that suffi-
cient time was available for considering the issues raised by
the Supreme Court's decision (48 FR 39908).
The NPRM
On October 14, 1983, the Department issued a notice of
proposed rulemaking (NPRM) (48 FR 48622) asking for com-
ment on a range of alternatives, including the following:
Retain the automatic occupant protection requirements of
FMVSS 208. Under this alternative, the substantive auto-
matic occupant protection requirements of FMVSS 208 would
be retained, but a new compliance date would have to be
established. Compliance could be by any type of automatic
restraint including detachable belts.
Amend the automatic occupant protection requirements of
FMVSS 208. Numerous alternatives were proposed. For
example, an amendment could require compliance by airbags
only or by airbags or nondetachable automatic belts only.
Subalternatives included automatic protection for the full
front seat, the outboard seating positions, or the driver only.
An additional alternative would have required that cars be
manufactured with an airbag retrofit capability.
Rescind the automatic occupant protection requirements
of FMVSS 208. The Department could again rescind the
requirements if its analysis led it to that conclusion. The
60a
Supreme Court decision does not bar rescission after the
Department “consider{s] the matter further.”
The NPRM also proposed other actions that could be taken
in conjunction with, or as a supplement to, the above alterna-
tives. They were as follows:
Conduct a demonstration program. Such a program could
be along the voluntary lines suggested by Secretary Coleman
in 1976 and would be accompanied by a temporary suspension
of FMVSS 208’s automatic occupant protection requirements.
It would be designed to acquaint the public with the auto-
matic restraint technologies so as to reduce the possibility of
adverse public reaction and to obtain additional data to refine
effectiveness estimates.
Seek mandatory State safety belt usage laws. The Depart-
ment could seek Federal legislation that would either establish
a seatbelt use requirement or provide incentives for the States
to adopt and enforce such laws. If large numbers of persons
wore existing manual belts, there would be less need for
automatic restraints.
Seek legislation mandating consumer option. Under this
alternative, the Department would seek Federal legislation
requiring manufacturers to provide consumers the option of
purchasing any kind of restraint system: airbag, automatic
belt, or manual belt.
Following the issuance of the NPRM, the Department held
public meetings in Los Angeles, Kansas City, and Washington,
D.C. One hundred fifty-two people testified at these hearings.
The public comment period on the NPRM closed on
December 9, 1983. The Department received over 6,000
comments on that NPRM by the close of the comment period.
Since then, the Department has received an additional 1,800
comments. Some of these comments raised issues or led to the
identification of other alternatives on which the Department
wanted to receive further public comment.
6la
The SNPRM
As a result of the desire for additional public comment, the
Department issued a supplemental notice of proposed
rulemaking (SNPRM) on May 10, 1984 (49 FR 20460).
The SNPRM asked for comment on issues involving the
following areas: The public acceptance of automatic restraints,
the usage rates and the effectiveness of the various restraint
systems, the benefits that would be derived from the various
alternative means of protecting automobile front seat
occupants, including pot ntial insurance premiums savings,
and the testing procedures that would be required for auto-
matic restraints. The SNPRM also sought comment on four
additional proposed alternatives for occupant crash protection:
Automatic restraints with waiver for mandatory use law
States. Under this proposal, automatic restraints would be
required in all cars manufactured after a set date, but this
requirement would be waived for vehicles sold to residents of
a State which had passed a mandatory safety belt use law
(MUL).
Automatic restraints unless three-fourths of States pass
mandatory use laws. Under this proposal, automatic
restraints would be required in all cars manufactured after a
set date, unless three-fourths of the States had passed manda-
tory use laws before that date.
Mandatory demonstration program. This alternative
involves a mandatory demonstration program, which was sug-
gested by the Ford Motor Company. Each automobile manu-
facturer would be required to equip an average of five percent
of its cars with automatic restraints over a four-year period.
Driver's-side airbags in small cars. Under this alternative,
airbags would be required only for small cars and only for the
driver's position in those cars.
The comment period on the SNPRM closed on June 13,
1984. The Department received over 130 comments.
62a
The Statute
Pursuant to the National Traffic and Motor Vehicle Safety
Act of 1966, as amended, the Department of Transportation is
directed to “reduce traffic accidents and deaths and injuries to
persons resulting from traffic accidents.” The Act authorizes
the Secretary of Transportation to issue motor vehicle safety
standards that “shall be practicable, shall meet the need for
motor vehicle safety, and shall be stated in objective terms.”
In issuing these standards, the Secretary is directed to consider
“relevant available motor vehicle safety data,” whether the
proposed standard “is reasonable, practicable and appropriate
for the particular type of motor vehicle... for which it is
prescribed,” and the “extent to which such standards will
contribute to carrying out the purposes” of the Act.
The Safety Problem
Occupants of front seats in passenger cars account for
almost half of the deaths that occur annually in motor vehicle
accidents (including pedestrian fatalities). In recent years
(1981-1983), an average of approximately 22,000 persons have
been killed annually in the front seats of passenger cars;
another 300,000 suffered moderate to severe injuries and more
than 2 million had minor injuries. Approximately 55 percent
of these fatalities and injuries occur in frontal impacts and
another 25 percent occur in side impacts. Table 1 shows the
number of fatalities, by seating position, for 1975-1982, while
Table 2 shows data for injuries, by severity and seating posi-
tion, for 1982, the latest year for which such a breakdown is
available. Table 3 provides estimates of similar data for 1990
to illustrate the impact of any rulemaking. For the 1990 data,
it was assumed (for purposes of this rulemaking analysis only)
that manual belt usage rates would remain the same as current
rates.
63a
Table 1.—Front Seat Passenger Car Fatalities With Known
Seating Position
Front Front Other
Driver middle right fromt Total
Ferrer 16.270 644 5,601 21 4 3=22,536
i chedcnesenetes dened tak 72.2 29 2458 O11 100
Pbidédeotsshoceneussedeetn 16.375 602 5714 24 22715
Dt sonhighevtidcsusetunaus 72.1 7 3.1 ol 100
i aiesateevesadsaceveenenes 16.967 S77 5,992 14 =—- 23,550
DT ASbGndestbedeucdcsones 72.0 25 34 oO 100
Dstsivdheswstebainneshees 18,224 627 6,180 16 825,047
Dt thiedchasadadvaboeee ‘a 727 25 247 «601 100
Pchheusesatesestésaséscos 18.267 513 5,968 6 24,754
DE crivavetcccsasresacses 73.8 21 24.1 100
Dikhit s sees scavabestes 17,966 526 6,012 9 24513
SE coniestebedahesoss seks 73.3 22 245 100
DG EdGeeoksUdedéscocéicaned 17,722 460 5844 6 24,032
DE chsbUUedabaecdncesesesi 73.8 19 243 100
Distvesaenesueecessséseans 15.225 373 5,202 16 §=620,816
EE bAdesaecseNecticaseaes 73.1 18 3.0 O01 100
Table 2.—Distribution of Front Seat Passenger Car Occupant
Injuries by Severity Level (1982)
Injury Front Front Other
severity Driver middle =— right front Total
Minor ............... 1,388,519 29.914 515.786 2526 1,936,745
0 rere 187,660 6467 47417 1,604 243,148
ET cnn obacnnet 45,627 239 16,100 0 62.016
a SE eR 5,592 0 2411 0 8,005
Critical . . 3,238 0 7 0 3,961
Percent of minor
EE seca en none ne 717 L5 26.6 02 100.0
Percent of moderate to
critical injuries... . 763 21 210 06 100.0
Table 3.—Projection of Fatalities and Injuries for 1990
Front Front
iddh .
Driver right Total
Fatalities... .. ne Oe Ee net 18,050 37 6.140 24.560
REALE Reacts eee eee 735 15 25.0 100.0
Moderate to critical.
Injuries ................. 290,000 5,000 75,000 370,000
hii ts on ah ha td leo 785 15 200 100.0
Minor injuries ............... 2,110,000 40,000 800,000 2.950.000
Pats Jucwachatascaws ot TLS L5 27.0 100.0
b4a
To fully understand the benefits of various occupant
restraint systems, it is helpful to recognize the frequency with
which various front seating positions are used in cars involved
in injury-producing accidents. As Tables 1 and 2 illustrate,
three-fourths of all front seat occupant fatalities and serious
injuries are experienced by drivers and almost all of the
remainder are passengers in the right outboard seat. Thus,
automatic protection is likely to have three times the level of
benefits for drivers as for front seat passengers. Additionally,
not only are occupants of the center seat rarely involved in
fatal or injury-producing crashes, but their involvement is
declining as shown in the Tables. This decline is thought to be
occurring, at least in part, because of the decline in the
number of automobiles manufactured with bench-style front
seats.
Current Occupant Restraint Technology
Manual Belts
Manual belts are safety belts that will provide protection in
a crash if the occupant places the belt around himself or
herself and attaches it. Manual belts can come in two types:
Lap belts that fit around the pelvic region and combined lap
and shoulder belts, which are found in the great majority of all
new cars sold today. Manual shoulder belts are equipped with
inertial reels that allow the belt webbing to play out so that the
occupant can reach forward freely in the occupant compart-
ment under normal conditions, but lock the belt in place if a
crash occurs. To remind occupants to use their belts, FMVSS
208 requires the installation of a brief (4-8 seconds) audible
and visible reminder.
Automatic Belts
The automatic belt is similar in many respects to a manual
belt but differs in that it is attached at one end between the
seats in a two front seat car and at the other end to the interior
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of the door, or in the case of a belt with a motorized anchor-
age, to the door frame. The belt moves out of the way when
the door is opened and automatically moves into place around
the occupant when the door is closed. Thus, the occupant
need take no action to gain the protective benefits of the
automatic belt.
Automatic belts differ significantly in their design. Some
designs consist of a single diagonal shoulder belt (2-point belt)
with a knee bolster located under the dashboard to prevent the
occupant from sliding forward under the belt. Other designs
include both a lap and a shoulder belt (3-point belt).
The designs differ also in the features and devices included
to encourage belt use by motorists and at the same time allow
for emergency egress if the car door cannot be opened follow-
ing a crash. Several designs are described below.
One design takes advantage of the opportunity for the
manufacturer to include, on a strictly voluntary basis, an
ignition interlock. The belt in that design detaches from the
door, but must be reattached before the car can be started the
next time. This type of automatic belt (2-point belt with knee
bolster) has been installed in more than 390,000 Volkswagen
(VW) Rabbits over an eight-year period beginning in 1975. It
was also installed on a small number of 1978-79 General
Motors (GM) Chevettes. It is still available as an option on
Rabbits.
Another design is similar in that the belt detaches, but there
is no ignition interlock. The belt may be detached and left
that way without affecting the starting of the car. This was
the type of automatic belt that most manufacturers had
planned to use in complying with the automatic restraint
requirement before the agency issued its rescission order. It
was briefly offered by General Motors as a consumer option on
a Cadillac model.
A third type of automatic belt is a continuous belt that does
not detach at either end. Some continuous belts use a spool
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release, which plays out additional webbing length. Sufficient
slack is created by an emergency release lever so that the
motorist can lift the belt out of his or her way and exit in an
emergency. Another type of continuous belt with a spool
release mechanism is the motorized belt. The belt’s outer
anchorage is not fixed to the door but runs along a track in the
interior side of the door’s window frame. when the door is
opened, the anchorage moves forward along the track, pulling
the belt out of the occupant’s way. When the door is closed,
the process is reversed so that the belt is placed around the
seated occupant. This type of continuous belt, which is a two-
point system with a knee bolster and which contains a manual
lap belt, has been installed in all Toyota Cressidas for the last
several model years and enhances occupant ingress and egress.
Another type of continuous belt was installed on a small
number of 1980 Chevettes. The belt consisted of a single
length of webbing that passed through a ring near the occu-
pant’s inboard hip and served both as a Jap and a shoulder
belt. The end of the lap belt that was connected to the lower
rear corner of the door could be detached from the door.
However, the end could not be pulled through the ring. Thus,
the effect of detaching the lap belt was to create an elongated
shoulder belt. The extra slack in the belt system enabled
occupants to get out of their belt in the event of an
emergency.
Airbags
Airbags are fabric cushions that are very rapidly inflated
with gas to cushion the occupant and prevent him or her from
colliding with the vehicle interior when a crash occurs that is
strong enough to trigger a sensor in the vehicle. (Generally,
the bag will inflate at a barrier equivalent impact speed of
about 12 miles per hour.) After the crash, the bag quickly
deflates, to permit steering control or emergency egress.
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In 1973-1978, General Motors produced approximately
11,000 full-sized Chevrolets, Buicks, Oldsmobiles and Cadil-
lacs equipped with airbags. During the same period, Ford
installed airbags in 831 Mercurys. A small number were
installed in Volvos also. Today, only a single manufacturer,
Mercedes Benz, is offering airbags in the United States. That
company began offering airbag-equipped cars in this country
beginning with the 1984 model year; it has been selling airbag
cars outside the United States since late 1980. Since then, it
has sold approximately 22,000 of those cars worldwide, with
most sales occurring within the last year or so. GSA has
contracted with Ford Motor Company to build 5,000 cars
equipped with driver’s side airbags. Delivery on these cars is
expected to begin in Model Year 1985.
Other Automatic Occupant Protection Technologies
The automatic occupant protection provisions of FMVSS
208 do not specify that particular technologies, such as auto-
matic belts or airbags, be used to comply with the standard.
Rather, the standard requires a level of safety performance
that can be met by any technology chosen by the manufac-
turer. Although safety belts and airbags are the most widely
discussed technologies, the use of “passive interiors” as a
means of compliance is also generating interest.
Under this approach, improvements are made to the vehicle
structure, steering column, and interior padding so as to
minimize potential occupant injuries. Thus, a “restraint”
system, of any kind, is unnecessary for occupant protection in
frontal crashes. GM has been actively pursuing “passive
interiors.”
III. Summary of the Public Comments
Introduction
In this section of the preamble we have summarized the
public comments on the Department’s October 19, 1983,
NPRM and the May 14, 1984 SNPRM. We have presented
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the summaries under headings that generally relate to the
headings used in the subsequent portions of the preamble.
Some of the comments are very generally stated and may
relate to more than one issue. Because of the large number of
public comments, we have provided a representative sample
of the comments made and the commenters who made them.
Subsequent portions of the preamble discuss the issues and
alternatives and present the Department’s position and
response to the public comments. The comments are analyzed
and responded to in more detail in the Department's Final
Regulatory Impact Analysis (FRIA).
Occupant Protection Systems
Usage
Vehicle manufacturers generally agreed that mandating
automatic belts would increase usage initially. However,
based on their expectation of installing detachable automatic
belts if required to install some type of automatic protection,
some car manufacturers generally predicted that use would
fall close to the current levels for manual belts once the belts
were disconnected for the first time. GM believes this to be
true for detachable automatic belts, and for nondetachable
automatic belts as well. Honda also believes that, while there
would be an initial increase in restraint usage if automatic
belts were mandated, long-term usage of automatic belts
might not be higher than current usage of manual belts. The
key determinants would be the comfort and convenience of
automatic belts. The other manufacturers believed that auto-
matic belts would probably produce some small usage
increase. Chrysler stated that usage for automatic belts would
be less than 10 percentage points higher than current usage for
manual belts. Ford commented that the use of nondetachable
automatic belts would initially be higher than the usage level
for detachable automatic belts, but that over the long term it
would fall to the same level. Ford said further that occasional
belt users would use automatic belts more often than they
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currently use their manual belts, but the overall level of usage
would not significantly rise.
The car manufacturers generally believe that nondetacha-
ble automatic belts would not be practicable since consumers
would object strongly to them and, therefore, would defeat
and possibly disable them. The manufacturers concluded that
there would be little or no increase in usage over manual belt
rates.
The Pacific Legal Foundation (PLF) said that mechanically
compelled use by unwilling occupants would be no more
likely to succeed than legally compelled use by such persons.
On the other hand, the American Seat Belt Council (ASBC)
believes that usage of automatic belts would be 50 percent,
which is roughly halfway between the current driver usage of
14 percent for manual belts and 80 percent for automatic belts
with ignition interlocks. Professor William Nordhaus of Yale
University believes that use of automatic belts would increase
by 33 percentage points. John Graham of Harvard University
found that expert opinion varies on the extent to which auto-
matic belts would increase usage. His survey of seven experts
from that detachable automatic belts would increase usage by
10 percentage points with an 80 percent confidence interval of
5 to 40 percentage points.
The issue of use inducing features or reminder mechanisms
was raised by several commenters. ASBC believes that a
continuous buzzer could double usage, and that buzzers,
chimes and lights would all increase usage over levels that
could be observed in vehicles without such features. VW
stated that a continuous buzzer might be as effective as an
interlock. On the other hand, Ford stated that while a contin-
uous buzzer would induce some non-users to wear their safety
belts, driver irritation and actions to permanently defeat the
system could also be anticipated.
Effectiveness
Manual Beiis. The vehicle manufacturers generally stated
that current manual lap and shoulder belts are more effective
(when used) than either automatic belts or airbags. However,
the combination of an airbag and manual lap and shoulder
belts was acknowledged to be the most effective system of all.
The Automobile Importers of America (AIA) estimated
manual belt effectiveness at 50 percent. Honda expressed the
view that, based upon results of its 35 mile per hour crash
testing, manual belts may be more effective than airbags in
terms of chest acceleration and femur load injury criteria.
Most commenters on the SNPRM believed that the agency's
range of effectiveness estimates for manual belts is too low.
ASBC concluded that the estimate is too low because the
agency estimate of lives saved from manual belt usage is
approximately half the value previously cited by the agency.
Renault argued that manual belt effectiveness data should not
be adjusted to account for the presumably more cautious
driving behavior of belt users, since belt use may lead some
individuals to drive faster in the belief that they are better
protected. VW provided a procedure for calculating manual
belt effectiveness from NHTSA’s Fatal Accident Reporting
System (FARS) data, which led to a very high effectiveness
estimate. Ford concluded that the agency’s analysis would
support a higher range of manual belt effectiveness (50-60
percent). Ford also challenged agency conclusions that man-
ual belts are more effective in preventing moderate to serious
injuries than fatalities and that manual belts are not likely to
be effective in accidents involving a velocity change of over 35
miles per hour.
Automatic Belts. The manufacturers stated that automatic
belts may be less effective than manual belts. Similarly, the
National Automobile Dealers Association (NADA) argued that
automatic belts may be less effective than current manual belts
if the automatic belt is attached to the door. VW and State
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Farm disagreed, saying that automatic belts are as effective as
manual belts.
Volvo argued that nondetachable automatic belts may be
less effective than detachable automatic belts due to a “film
spool effect.” This effect may occur in 2-door models, if the
amount of webbing must be increased to allow entrance of
passengers into the rear seat area.
The Insurance Institute for Highway Safety (IIHS)
criticized the agency's effectiveness estimates for automatic
belts, saying there was no support for the agency’s conclusion
that such belts, compared with manual belts, may increase the
probability of occupant ejection. IIHS also suggested that the
agency consider data that show that automatic belts may
reduce the probability of the occurrence of head injuries. VW
also challenged the conclusion that automatic belts could per-
mit higher rates of occupant ejection. Ford argued that the
agency should use a range instead of a point estimate for the
fatality reduction of automatic belts. Ford also questioned the
agency s conclusion that 3-point automatic belts should be as
effective as manual belts, due to the lack of data supporting
such a conclusion and the fact that manual belts can be more
securely adjusted than automatic belts.
Professor William Nordhaus criticized the agency's adjust-
ment of automatic belt effectiveness data to account for the
lower accident experience of drivers who had elected to use
belts as compared to nonusers of safety belts. The agency had
concluded that as increasing numbers of current nonusers of
manual belts were brought into the population of automatic
belt wearers, the overall effectiveness of automatic belts would
be decreased. Professor Nordhaus argued that the agency
overestimated the magnitude of this effect. Professor
Nordhaus also argued that automatic belts need not be less
effective than current manual belts. In making this argument.
he relied on agency crash test data and somewhat different
data than those found by the agency to be most probative.
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Airbags. Many consumer groups and health organizations
indicated their belief that the reliability and effectiveness of
airbags has been researched and tested to a far greater extent
than any other item of vehicle safety equipment, and that the
effectiveness of these devices is “unquestionable. ”
Allstate stated that airbags are more effective than belts in
protecting against head and facial injuries. That company
stated that while some of the dummies wearing belts “survive”
35 mph crashes under the injury test criteria, they sustained
head and facial injuries far in excess of those produced with
airbags at comparable speeds. Allstate noted, also, that belts
were not dynamically tested as automatic restraints would be.
Citing its field experience, Allstate said that airbags are effec-
tive not only in reducing deaths and injuries in frontal crashes
but also in reducing injuries in side impact crashes. Allstate
challenged the accuracy of the agency's NPRM estimate of
airbag effectiveness, pointing out that that analysis was based
on the use of restraint technology that is more than 10 years
old. Allstate noted the GM itself had admitted that that
technology was “obsolete.” IIHS stated that, based on its
analysis, airbags should be at least 34 percent effective in
reducing fatalities.
Ford argued that the number of airbag cars that have been
produced to date is too small to adequately answer questions
about effectiveness.
PLF expressed the view that the agency really had no
evidence that airbags are effective. That group argued that
the agency erred in saying that the effectiveness of airbags is
probably understated in the field data. According to PLF,
DOT cannot know about all of the fatalities that have
occurred in accidents involving airbag equipped cars. The
group stated that the Department’s estimate of airbag effec-
tiveness is overstated to the extent that there are such
undetected fatalities. Further, the group believes that the
claim of the agency in the Preliminary Regulatory Impact
——EEE_
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Analysis (PRIA) that the large size of the care equipped with
airbags leads to an understating and obscuring of the potential
effectiveness of airbags in smaller size cars is no more reason-
able a conclusion than one that the large size of these cars
masks the deficiencies of airbags by offering greater protection
to out-of-position occupants and allowing longer deployment
times for airbags. This group also asked DOT to provide an
updated analysis of injury data for the fleet of airbag cars.
The National Head Injury Foundation stated that the airbag
offers unique protection against head injury which even the
automatic belt does not.
PLF and VW suggested that the presence of airbags might
induce drivers to take greater risks while driving in reliance on
the perceived increased protection. PLF argued that these
increased risks could easily offset any gains in protection
available as a result of the airbags. Professor Orr of Indiana
University raised the same point, arguing that the “risk com-
pensation’ theory is sound but that the magnitude of its effect
was unknown. IIHS submitted a study showing that the
implementation of a safety belt use law in a Canadian prov-
ince did not result in any increased risk taken by drivers. The
study looked at the frequency with which certain risky
maneuvers were made before and after the law was imple-
mented and found no significant difference. John Graham
stated that, based on several studies he has undertaken, any
risk-compensation effect is significantly lower than the magni-
tude of benefits derived from the safety improvements.
Several vehicle manufacturers expressed their view that an
airbag is relatively ineffective by itself, and should be viewed
as a supplement to a belt system. The Motor Vehicle Manu-
facturers Association (MVMA) emphasized its view that
airbags are effective in frontal crashes only.
In their SNPRM comments, several commenters addressed
the agency's estimated range of effectiveness for airbags. IIHS
concluded that the range is conservative but not unreasonable
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at the middle and high ends. They cautioned, however, that it
would be inappropriate to compare the effectiveness of airbags -
in relation to safety belts by using the low end of the airbag
effectiveness range and the middle or high end of the safety
belt range. Mercedes Benz commented that its new “supple-
mental restraint system,” which employs an airbag, has
worked according to design in all accident situations in which
vehicles equipped with the system have been involved.
PLF and VW also said that the Department's effectiveness
studies were subjective. PLF argued that DOT was using
precisely the same type of analysis that GM had offered and
NHTSA had rejected in the 1977 rulemaking on automatic
restraints. That group stated that DOT failed to explain this
change of view. The PLF also criticized the agency's studies
on airbag effectiveness for failing to take into account data for
all vehicles using airbags, i.e., the non-GM Air Cushion
Restraint System (ACRS) cars. Renault expressed the view
that airbag effectiveness could not exceed 20 percent, due to
the inability of airbags to provide protection in nonfrontal and
ejection accident situations.
Ford argued that notwithstanding the limited amount of
actual field data on airbag cars, those data cannot be totally
dismissed in arriving at an estimate of airbag eftectiveness.
Ford also suggests updating field data to include Fatal Acci-
dent Reporting System data through 1983, instead of only
through 1981 as was done in the PRIA. Ford found two of
NHTSA’s studies based on the National Crash Severity Study
(NCSS) data to provide reasone)le estimates of airbag effec-
tiveness but found the third study to be flawed. Ford argued
that the latter study was restricted to data from crashes in
which airbags would most likely be effective. Ford also
challenged a fourth agency study, on injury reducing effec-
tiveness, based on field data, since it tended to show airbags to
be most effective in accident situations in which the airbag is
unlikely to deploy. Ford also stated that there appeared to be
—e
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no basis for the agency's effectiveness range for airbags use in
conjunction with safety belts.
Benefits
Several major insurance companies commissioned Professor
William Nordhaus of Yale University to provide an updated
economic analysis of alternative approaches to automatic crash
protection. In response to the NPRM, Professor Nordhaus
concluded that automatic crash protection would have net
economic benefits to the nation of between $2.7 and $4.1
billion per year, while rescission would coat the nation $33
billion. Professor Nordhaus stated that every year of delay
increases fatalities by approximately 5,000 and increases mod-
erate to critical injuries by at least 70,000. His analysis also
concluded that the impact of retaining the rule on profits or
jobs in the automobile industry, as well as on the national
economy, would be miniscule. He stated that automatic crash
protection would be cost-beneficial even if automatic belts
increased restraint usage by only eight percentage points and
even if airbags cost $825.
Many consumer and health organizations expressed concern
that the agency had understated the benefits that would be
associated with automatic restraints through their prevention
of deaths and injuries. ITHS noted that the agency was relying
on police reports to calculate the number of injuries from
vehicle accidents. The group submitted evidence that only 70
percent of injuries resulting from vehicle accidents and treated
in hospital emergency units were reported to the police. The
evidence was taken from a study comparing car accident
treatments in northeastern Ohio emergency rooms with police
reports of accidents. To compensate for this underreporting of
vehicle accident related injuries, this group suggested that the
agency multiply its projected number of injuries by 1.4 to give
a more accurate indication of the number of vehicular non-
fatal injuries that could be expected. Such a step would, of
course, increase the benefits associated with automatic
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restraints. Another group was also concerned that the agency
had underestimated the minimum level of effectiveness of
airbags and submitted an analysis showing that airbags would
have a minimum effectiveness of 35 percent, instead of the 20
percent minimum used by the agency in the PRIA.
Several of the health organizations commenting on the
proposal emphasized that the agency ought to reconsider the
human cost of the head and spinal injuries suffered by persons
in car accidents. One group submitted data projecting 66,000
head injuries annually as a result of vehicle accidents, with
nine percent of those injured persons either dying in the
hospital or discharged to chronic institutional care. Another
eight percent would be discharged but subject to follow-up
medical attention. Many of these victims are young people
who have to readjust to life with these injuries, which prevent
them from performing even simple tasks they once did for
themselves. These impacts are not readily quantifiable in
dollars, according to these groups, but are just as significant as
economic impacts for the people with family members who
have suffered serious head and spinal injuries.
VW asked for an explanation of the methodology used in
calculating Table 3 of the SNPRM, since the baseline of
fatalities if no restraints were used seems to change with each
listed effectiveness rate. This comment also noted that if
mandatory usage laws are in effect by 1988, and 70 percent
buckle up, the airbags’ benefits would not equal the benefits of
the mandatory use laws until the 21st century.
Professor Nordhaus states that using NHTSA’s effectiveness
rates for the various types of restraint systems shows both
automatic belts and airbags to be highly cost-beneficial, and
that further delays cost the country at least $24 billion annu-
ally. He also stated that the benefits of mandatory belt use
laws are so speculative as to necessarily remove those options
from any serious consideration.
a
ia
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ITHS stated that DOT's projected airbag usage rate of 98
percent a fortiori means that airbags are the most beneficial
alternative, because DOT has consistently recognized that the
benefits of any of the restraint systems depend almost com-
pletely on the usage rates. IIHS repeated its contention that
belt nonusers constitute such a disproportionate number of
crash-involved occupants that acutal reductions in deaths and
injuries will be noticeably lower than would be projected for
that level of belt use until the usage rate approaches 100
percent.
The insurance companies stated that several companies now
have in effect 30 percen: permium reductions for first and
third party bodily injury liability for cars with automatic
restraints. They contended, however, that the benefits associ-
ated with this rulemaking are not lower insurance premiums.
In their view, the benefits are the prevention or reduction in
seriousness of thousands of fatalities and serious injuries
annually.
Public Acceptance
State Farm stated that it considered public acceptability of
restraint systems to be a very important issue. It argued that a
regulatory alternative could not be rejected on the grounds of
insufficient public acceptability if the benefits of the alterna-
tive would exceed the costs of that alternative. It argued
further that the legislative history of the Vehicle Safety Act
made it clear that safety was the overriding consideration in
implementing the Act. Thus, more weight should be given to
the safety benefits of a contemplated safety requirement than
to the public acceptability of the devices used to comply with
that requirement.
State Farm also said that public reaction has regulatory
significance as a legal and practical matter only if it is trans-
lated into behavior, that is, if people disable automatic
restraints. If not, public acceptability meets the statutory
criteria. Public opinion surveys over the last decade, including
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the 1983 GM and IIHS surveys, show public support for
mandatory automatic restraints. “All studies of usage rates of
automatic belts show levels of incremental usage far above
break-even levels.”
Contradictory evidence was provided on the attitude of the
public toward automatic restraints. Consumer Alert provided
a public opinion poll showing that fewer than 15 percent of
the respondents wanted mandatory automatic restraints. Pub-
lic Citizen submitted a public opinion poll which it viewed as
showing a clear preference for automatic restraints, especially
airbags. IIHS cited a recent public opinion poll indicating that
56 percent of the respondents favored requiring automatic
restraints on new cars as standard equipment and 37 percent
favored requiring that that type of restraint be offered as an
option. AAA stated that while consumers may not rush to
purchase automatic restraints as options if manual belts were
original equipment, they would accept automatic restraints as
original equipment. particularly if they could choose between
the various types of automatic restraints. Other groups argued
that the increased protection against facial, spinal and head
injuries afforded by airbags would result in consumers choos-
ing airbags as the preferred automatic restraint, if they are
allowed to make that choice. Most of these groups indicated
that airbags are less intrusive than automatic belts, and would
therefore be more readily accepted by the public.
The manufacturers said that nondetachable belts would
raise consumer acceptance problems since they are more
coercive than current belts. This expectation is based in part
on the interlock experience of 1974. NADA said that the
experience with VW Rabbits, Toyota Cressidas and GM
Chevettes indicates a lack of consumer acceptance of auto-
matic belt systems and that the GM experience with airbag
cars shows a simi!ar lack of consumer acceptance.
Mercedes, on the other hand, said that its system had met
with “favorable market acceptance” in Europe and projected
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79a
it would be accepted in the U.S. VW said, contrary to dealer
statements, that it did not believe its automatic belts had been
defeated in the sense of being destroyed but only that the
interlock had been defeated, perhaps by dealers themselves.
MVMA submitted a memorandum of law with which GM
and VW agreed. Ford and AMC also agreed, adding com-
ments. MVMA restated the State Farm argument saying that
State Farm believes the Act forbids NHTSA from considering
adverse public reaction to a mandatory automatic require-
ment except to the extent that the public will dissable the
equipment. MVMA believes the State Farm position is not
consistent with the legislative history of Act, judicial prece-
dent, or prior positions of DOT. MVMA says that public
acceptability is part of the “all relevant factors” consideration
under the Act. Two 1974 congressional actions shed light on
what is acceptable. The ignition interlock ban and congres-
sional review of a mandatory automatic restraint rule (MVMA
cites the Senate debate on the 1974 Federal highway aid bill
on the congressional review issue). MVMA claims Secretary
Coleman's decision was made with these factors in mind.
Matters of future probability, as raised in the Coleman deci-
sion, are relevant to an agency decision even though they
cannot be precisely measured.
GM agreed adding that public acceptability is not a narrow
issue.
VW also agreed, stating that public acceptability is a two-
faceted problem; State Farm's concern over consumers defeat-
ing or destroying the restraint systems and public popularity
are equally important. Consumer backlash could result from
an expensive or coercive system, such as an ignition interlock.
VW claims that airbags have been oversold; fatalities would
continue and DOT's credibility would be questioned.
Ford agreed, stating that public acceptance involves far
broader issues than disabling unwelcomed equipment. Ford
asks what percentage of front seat occupants would defeat
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automatic restraints and whether there would be enough
benefits to justify the systems. Ford’s best projection is that
manual and automatic usage will be equivalent over the long
run, that is, positive and negative belt use inducement factors
for automatic belts will balance out to produce usage rates
equivalent to those for active belts. Ford said also that com-
fort, entry and egress, and the defeatability of automatic belt
systems are still unknowns; therefore, a field test is needed.
Chrysler said the State Farm position is too narrow. There
must be widespread public perception that benefits are worth
the price. It predicted that the automatic restraint require-
ment would suffer the same fate as the ignition interlock.
Toyota said the State Farm position is inappropriate. The
public may press for leglislative rescission of an automatic
restraint requirement, even though the public does not or
cannot disable the system, citing the ignition interlock
experience.
BL Technology Ltd. said that public acceptability and
usage should be considered together. It said that the NHTSA
definition of public acceptance is correct, i.e., “tolerance and
use of the restraint system’, whether manual or automatic.
BL suggests that the U.S. try mandatory seat belt use laws
coupled with effective enforcement.
Renault accepts the State Farm interpretation but pointed
out that a belt is needed with an airbag. Renault said that
public acceptance and use of auto
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