Center for Auto Safety v. Federal Highway Admin., 90-5310
| Decision Date | 19 February 1992 |
| Docket Number | No. 90-5310,90-5310 |
| Citation | 956 F.2d 309 |
| Parties | CENTER FOR AUTO SAFETY, et al., Appellants, v. The FEDERAL HIGHWAY ADMINISTRATION, Appellee. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Appeal from the United States District Court for the District of Columbia.
Henry M. Jasny, Washington, D.C., for appellants.
D. Bruce La Pierre, Atty., Dept. of Justice, with whom Stuart M. Gerson, Asst. Atty. Gen., Jay B. Stephens, U.S. Atty., and Barbara C. Biddle, Atty., Dept. of Justice, Washington, D.C., were on the brief, for appellee.
Before EDWARDS and RUTH BADER GINSBURG, Circuit Judges, and THOMAS, Circuit Justice. *
Opinion for the Court filed by Circuit Justice THOMAS.
Before 1988, regulations provided without exception that the states must inspect their respective highway bridges at least every two years. The Federal Highway Administration then amended the regulations (1) to authorize less frequent inspections in certain limited circumstances and (2) to require the inspection of bridges' underwater supports at least every five years. The appellants here, two individuals and an organization devoted to the cause of highway safety, challenged both provisions. The questions presented are whether the FHWA has violated its statutory obligation to "establish" by regulation a "maximum time period between inspections," 23 U.S.C. § 151(b)(2) (1988), and whether the agency acted arbitrarily and capriciously in promulgating either amendment.
Title 23 U.S.C. § 151(a) requires the Secretary of Transportation to establish "national bridge inspection standards" to provide for "the proper safety inspection and evaluation of all highway bridges." Section 151(b) imposes various minimum requirements that the inspection standards must satisfy. Section 151(b)(2), the focus of much of this controversy, provides that the standards must "establish the maximum time period between inspections." The Secretary has delegated his section 151 responsibilities, among others, to the Federal Highway Administration. See 23 C.F.R. § 1.37 (1991).
In 1971, the FHWA promulgated the bridge inspection standards required under section 151. See 36 Fed.Reg. 7851. As codified, section 650.305(a) of the standards declares categorically that "[e]ach bridge is to be inspected at regular intervals not to exceed 2 years." 23 C.F.R. § 650.305(a). Between 1971 and 1988, all bridges subject to the program 1 were inspected at least every two years, but few states inspected their bridges' underwater supports. 2
In 1988, the FHWA amended the bridge inspection standards in two respects relevant here. First, it promulgated a new section 650.305(c), which permits the states to apply for, and the agency to approve, bridge-specific exemptions from the two-year inspection rule. Section 650.305(c) provides:
The maximum inspection interval may be increased for certain types or groups of bridges where past inspection reports and favorable experience and analysis justifies [sic] the increased interval of inspection. If a State proposes to inspect some bridges at greater than the specified 2-year interval, the State shall submit a detailed proposal and supporting data to the Federal Highway Administrator for approval.
In its notice of proposed rulemaking, the FHWA justified section 650.305(c) as a means of providing the states "greater flexibility with which to utilize available inspection resources in a cost-effective manner." National Bridge Inspection Standards, 52 Fed.Reg. 11,092, 11,094 (proposed Apr. 7, 1987). Savings in bridge inspection costs, the agency reasoned, could be redirected into equally important bridge replacement programs. The FHWA acknowledged no safety tradeoff between less frequent inspections and more frequent replacements; instead, it asserted that the two-year inspection interval "can be increased for some categories of bridges with only a minimal or negligible increase in risk to the public." Id. This reasoning reflected a change in policy since 1984, when the FHWA had concluded that the safety benefits of a strict two-year rule "far outweigh" the potential economic benefits of less frequent inspections. 49 Fed.Reg. 17,039, 17,040. In justifying the change, the FHWA cited with scant elaboration its "further review and analysis since April of 1984." 52 Fed.Reg. at 11,093; see also National Bridge Inspection Standards, 53 Fed.Reg. 32,611, 32,611 (1988) (). 3
The 1988 amendments also added to section 650.303 a new subsection (e), which now provides special inspection procedures for certain categories of bridges. In particular, for bridges with "underwater members," it requires that "[t]hese members" be inspected at least every five years. See 23 C.F.R. § 650.303(e)(2). 4 This five-year rule for underwater inspections codifies the interval suggested by the American Association of State Highway and Transportation Officials (AASHTO), an organization that has developed a wide range of suggested highway safety standards. See AASHTO, Manual for Maintenance Inspection of Bridges § 2.4.2 (1983). The FHWA explained:
[T]he collective best judgment of professional bridge, hydraulic and geotechnical engineers as expressed by the current AASHTO Guide for Bridge Maintenance Inspection and comments received regarding this rulemaking procedure is that strong underwater inspection programs which encompass all bridges over waterways are currently needed. The 5 year maximum between underwater inspections is appropriate until a sufficient national data base to alter the period is established and evaluated.
Unhappy with both provisions, two of the current appellants () petitioned the FHWA for reconsideration. The FHWA denied the petition. 5 In explaining its decision with respect to section 650.305(c), the agency stated that its post-1984 review had included consideration of two recent draft studies on the deterioration rates of various bridges. Neither of these drafts, however, was entered into the formal record maintained by the agency during the rulemaking.
The appellants sought declaratory and injunctive relief in the district court. They raised three claims: first, that the availability of temporally unbounded exemptions from the general two-year inspection rule violates 23 U.S.C. § 151(b)(2); second and third, that both the exemption provision and the five-year rule for underwater inspections were promulgated arbitrarily and capriciously, in violation of section 10(e)(2)(A) of the Administrative Procedure Act, 5 U.S.C. § 706(2)(A).
The parties disputed the subsidiary question of what constitutes the administrative record subject to review. The FHWA filed with the district court the two drafts cited in its denial of reconsideration, together with a draft of a third bridge deterioration study. Attached to the studies was a declaration asserting that the agency had considered all of them during the rulemaking. 6 The FHWA also filed a declaration explaining how it typically maintains its rulemaking records. According to that declaration, the "formal Administrative Record" includes materials such as notices published and comments received, but it excludes less formal materials such as "draft reports." 7
The parties filed cross-motions for summary judgment. The district court denied the plaintiffs' motion and granted the agency's, rejecting each of the plaintiffs' claims and upholding both of the challenged provisions. See Center for Auto Safety v. Federal Highway Admin., Civ. No. 89-1941, 1990 WL 116853 (D.D.C. July 30, 1990). The plaintiffs renew their claims on appeal.
Summary judgment is appropriate if the district court record reveals no "genuine issue" of "material fact." See Fed.R.Civ.P. 56(c). An asserted factual dispute is "material" if its resolution could affect the outcome of the case and "genuine" if a reasonable trier of fact could resolve it in favor of the nonmoving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). We review grants of summary judgment de novo. See Nikoi v. Attorney Gen., 939 F.2d 1065, 1068 (D.C.Cir.1991).
Under well-settled administrative law principles, the district court was obliged to afford the challenged agency actions a fair degree of deference, as are we. In reviewing a regulation challenged under a statute that the promulgating agency is entrusted to administer, we must accept any reasonable interpretation of the statute, see, e.g., Chevron, U.S.A., Inc. v. Natural Resources Defense Council, 467 U.S. 837, 842-45, 104 S.Ct. 2778, 2781-83, 81 L.Ed.2d 694 (1984), or the regulation, see, e.g., Martin v. Occupational Safety & Health Review Comm'n, --- U.S. ----, 111 S.Ct. 1171, 1175-76, 113 L.Ed.2d 117 (1991), put forth by the agency in support of the regulation. In reviewing an action challenged as arbitrary and capricious, our task is to determine whether the agency has articulated a rational connection between its factual judgments and its ultimate policy choice, see, e.g., Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 2866, 77 L.Ed.2d 443 (1983), and whether the underlying factual judgments are supported by substantial evidence, see, e.g., Association of Data Processing Serv. Orgs. v. Board of Governors, 745 F.2d 677, 683-84 (D.C.Cir.1984) [hereinafter ADAPSO ].
The regulations cannot be reconciled with 23 U.S.C. § 151(b)(2). Section 650.305(c) authorizes the FHWA to grant permission for states "to inspect some bridges at greater than the [maximum] 2-year interval" established under section 650.305(a). With respect to bridges that qualify for this special treatment, however, the regulations on their face fail to "establish" any "maximum time period between inspections," as required by section...
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