Center for Auto Safety v. Peck, s. 82-1782

Decision Date08 January 1985
Docket NumberNos. 82-1782,82-1783 and 83-1164,s. 82-1782
Citation751 F.2d 1336
PartiesCENTER FOR AUTO SAFETY, Petitioner, v. Raymond A. PECK, Jr., Administrator of the National Highway Traffic Safety Administration, Respondent, Motor Vehicle Manufacturers Association of the United States, Inc., Automobile Importers of America, Inc., Intervenors. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Petitioner, v. DEPARTMENT OF TRANSPORTATION, Elizabeth Dole, As Secretary, National Highway Traffic Safety Administration, and Raymond A. Peck, Jr., As Administrator, Respondents, Motor Vehicle Manufacturers Association of the United States, Inc., Automobile Importers of America, Inc., Intervenors. ALLSTATE INSURANCE COMPANIES, Petitioner, v. DEPARTMENT OF TRANSPORTATION, Elizabeth Dole, As Secretary, National Highway Traffic Safety Administration, and Raymond A. Peck, Jr., As Administrator, Respondents.
CourtU.S. Court of Appeals — District of Columbia Circuit

Petitions for Review of an Order of the National Highway Traffic Safety Administration.

James F. Fitzpatrick, Washington, D.C., with whom John M. Quinn, Washington, D.C., was on the brief, for State Farm Mut. Auto. Ins. Co. and Allstate Ins. Companies, petitioners in Nos. 82-1783 and 83-1164. Peter R. Maier and Donald P. McHugh, Washington, D.C., also entered appearances for petitioners in Nos. 82-1783 and 83-1164.

Katherine I. Hall, Washington, D.C., was on the brief for Center for Auto Safety, petitioner in No. 82-1782.

Michael F. Hertz, Atty., Dept. of Justice, Washington, D.C., with whom J. Paul McGrath, Asst. Atty. Gen., Dept. of Justice, Frank Berndt, Chief Counsel, Stephen P. Wood, Asst. Chief Counsel, David W Allen, Asst. Chief Counsel, Eileen T. Leahy and J. Edward Glancy, Attys., National Highway Traffic Safety Administration, Washington, D.C., were on the brief, for respondents in Nos. 82-1782, 82-1783 and 83-1164.

William H. Allen, Richard D. Copaken, Oscar M. Garibaldi, Washington, D.C., and William H. Crabtree, Detroit, Mich., were on the brief for Motor Vehicle Manufacturers Association of the United States, Inc., et al., intervenors in Nos. 82-1782 and 82-1783. Harris Weinstein, Washington, D.C., and Edward P. Good, Detroit, Mich., also entered appearances for Motor Vehicle Manufacturers Association of the United States, Inc., et al.

Milton D. Andrews and Lance E. Tunick, Washington, D.C., were on the brief for Automobile Importers of America, Inc., intervenor in Nos. 82-1782 and 82-1783.

Nathan Lewin and Anne Shere Wallwork, Washington, D.C., were on the brief for American Insurance Association, amicus curiae, urging that National Highway Traffic Safety Administration's Final Rule amending the Bumper Standard should be vacated in Nos. 82-1782 and 82-1783.

Mary Todd Foldes, Washington, D.C., was on the brief for United States Congressmen Moss and Eckhardt, amici curiae, urging reversal in Nos. 82-1782, 82-1783 and 83-1164.

Charles A. Taylor, III, Washington, D.C., was on the brief for National Association of Independent Insurers, amicus curiae, urging reversal in Nos. 82-1782 and 82-1783.

Robert E. Litan, Washington, D.C., was on the brief for National Association of Insurance Commissioners, amicus curiae, urging reversal in Nos. 82-1782, 82-1783 and 83-1164.

Before WRIGHT, TAMM and SCALIA, Circuit Judges.

Opinion for the Court filed by Circuit Judge SCALIA.

Dissenting opinion filed by Circuit Judge J. SKELLY WRIGHT.

SCALIA, Circuit Judge:

Since 1971 the National Highway Traffic Safety Administration ("NHTSA") has prescribed a minimum performance standard for automobile bumpers, originally under the National Traffic and Motor Vehicle Safety Act of 1966 ("the Safety Act"), Pub.L. No. 89-563, 80 Stat. 718 (1966) (codified as amended at 15 U.S.C. §§ 1381-1431 (1982)), and later under concurrent authority of the Safety Act and the Motor Vehicle Information and Cost Savings Act of 1972 ("the Cost Savings Act"), Pub.L. No. 92-513, 86 Stat. 947 (1972) (codified as amended at 15 U.S.C. §§ 1901-1991 (1982)). In the consolidated petitions before us we are asked to review the most recent change in that standard, which reduces the primary test impact speed from 5.0 mph to 2.5 mph, with the effect that lighter, less protective, and less costly bumpers will now satisfy the standard and presumably be made available to consumers.

I. BACKGROUND

On April 9, 1971, NHTSA adopted the first federal bumper standard pursuant to its authority under the Safety Act. Federal Motor Vehicle Safety Standard No. 215, 36 Fed.Reg. 7218 (1971) (codified at 49 C.F.R. § 571.215 (1971)) ("Standard 215"), required passenger cars to withstand specified collision impacts without sustaining damage to the vehicles' safety systems, i.e., "lighting, fuel, exhaust, cooling, or latching systems." Id. For cars manufactured after September 1, 1972 (model year 1973), the rule specified a series of perpendicular barrier impacts 1 at 5.0 mph for front and 2.5 mph for rear bumper systems. Post-1973 model year cars were required to meet the same damage criteria after additional front, rear, and corner pendulum impacts. 2 After two amendments to the standard--see 36 Fed.Reg. 11,852 (1971); 36 Fed.Reg. 20,369 (1971)--the pendulum impact test speeds were set at 5.0 mph for the front and rear and 3.0 mph for corners, at a height of 16-20 inches, and the perpendicular barrier impact speed for rear bumpers was raised to 5.0 mph.

Standard 215 was predicated on two safety-related concerns. First, in higher speed collisions bumpers are prone to over- or underride and interlock with other bumpers and guardrails. Vehicles immobilized in this fashion pose a safety hazard to oncoming traffic and to vehicle occupants who leave their vehicles to remedy the condition. See Federal Motor Vehicle Safety Standard No. 215, 35 Fed.Reg. 17,999, 17,999 (1970) (proposed Nov. 13, 1970). The pendulum test, applied uniformly at a height of 16-20 inches, effectively required standardization of bumper heights, and this alone significantly reduced the likelihood of bumper interlock and subsequent damage or injury. Second, the agency assumed an indirect relationship between bumper performance in low speed accidents and motor vehicle safety. Although the low-speed test damage criteria were not expected to assure protection for the vehicle's occupants in collisions at speeds likely to result in death or injury, they were meant to prevent damage to the vehicle's safety systems in minor accidents. It was thought that such damage, if left unrepaired, might cause, contribute to, or increase the severity of a subsequent, more serious accident. As the agency concluded in its notice of proposed rulemaking:

[M]any accidents of the parking lot variety impair the safety but not the mobility of the involved vehicles. A vehicle driven without proper lights, or with leaks in its fuel, exhaust, or cooling systems is a hazard. Similarly, a hood or trunk with a damaged latch may spring up to block the driver's vision, and a defective door latch may either open unexpectedly or fail to open in an emergency.

Id. The agency did not test or otherwise provide empirical support for the proposition that safety system damage in low speed accidents was a significant factor in subsequent accidents.

Shortly after NHTSA promulgated Standard 215, Congress enacted the Cost Savings Act, the stated purpose of which was "to reduce the economic loss resulting from damage to passenger motor vehicles involved in motor vehicle accidents." 15 U.S.C. § 1911(a). The Act directs the Secretary of Transportation and, by delegation, NHTSA, see 49 C.F.R. § 1.50(f) (1983), to promulgate a bumper standard that will "seek to obtain the maximum feasible reduction of costs to the public and to the consumer...." 15 U.S.C. § 1912(b)(1). In conducting the statutorily required cost-benefit analysis, NHTSA is to take into account:

(A) the cost of implementing the standard and the benefits attainable as the result of implementation of the standard;

(B) the effect of implementation of the standard on the cost of insurance and prospective legal fees and costs;

(C) savings in terms of consumer time and inconvenience; and

(D) considerations of health and safety, including emission standards.

Id. At the same time, the Cost Savings Act prohibits NHTSA from promulgating a bumper standard under that Act which conflicts with any safety standard under the Safety Act. Id. at § 1912(b)(2). See S.REP. NO. 413, 92d Cong., 1st Sess. 20 (1971).

NHTSA issued its first post-Cost Savings Act bumper standard, referred to as the Part 581 standard, on February 27, 1976. 41 Fed.Reg. 9346 (1976) (codified at 49 C.F.R. Part 581 (1976)). Before the rule was finally promulgated, however, NHTSA had issued no fewer than three different proposals. The first proposal incorporated the test speed impacts and procedures of Standard 215 and established--beyond the Standard 215 criteria prohibiting damage to safety systems--a "no-damage" standard requiring that, after testing, the vehicle should experience no dents in or separations of exterior surface material, no breakage or release of fasteners or joints, and no separations of paint, polymeric coatings, or other bonded coverings. 38 Fed.Reg. 20,899 (1973) (proposed July 30, 1973). In December 1974, this was replaced by a proposal that would have reduced the Standard 215 test impact speeds to 1.5 mph for corner impacts and 2.5 mph for front and rear impacts until 1979, and to 2.5 mph for corner impacts and 4.0 mph for front and rear impacts thereafter; and would have reduced the severity of the damage-resistance criteria of the 1973 proposal. 40 Fed.Reg. 10 (1975) (proposed Dec. 27, 1974). In March 1975, NHTSA withdrew the second proposal and issued a notice that differed only slightly from the original Part 581 proposal. 40 Fed.Reg. 11,598 (1975) (proposed Mar. 7, 1975). Finally, in February 1976,...

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