On Petition for Review of an Order of the National Highway Traffic Safety Administration
Before: Edwards, Randolph, and Tatel, Circuit Judges.
The opinion of the court was delivered by: Tatel, Circuit Judge
Air bags have saved thousands of lives since first appearing in passenger vehicles approximately three decades ago. Their ability to save some occupants, however, has proven fatal to others, especially children and small women. Responding to this problem and to a new congressional directive, the National Highway Traffic Safety Administration revised one of its auto safety standards to improve air bags' life-saving benefits while reducing their potentially deadly risks. In this case, we consider a challenge to one aspect of that new standard: the agency's decision to set the speed for unbelted vehicle crash testing at twenty-five rather than thirty miles per hour. Because in doing so the agency acted consistently with Congress's directive and neither arbitrarily nor capriciously, we deny the petition for review.
In 1993, the National Highway Traffic Safety Administration (NHTSA) began requiring manufacturers to install air bags in new cars and light trucks. See Federal Motor Vehicle Safety Standards; Occupant Crash Protection, 58 Fed. Reg. 46,551, 46,553 (Sept. 2, 1993) (codified at 49 C.F.R. § 571.208 (2003)). Under NHTSA's Federal Motor Vehicle Safety Standard No. 208, manufacturers had to certify that their air-bag equipped vehicles would protect occupants in the event of a crash. Specifically, auto makers had to show that their vehicles satisfied certain injury criteria limits in simulated rigid barrier crashes at speeds up to and including thirty miles per hour, using both belted and unbelted fiftiethpercentile adult male dummies. See id. at 46,552; Federal Motor Vehicle Safety Standards; Occupant Crash Protection, 65 Fed. Reg. 30,680, 30,741 (May 12, 2000). In plain English, Standard No. 208 required auto makers to show that a test dummy representing an average-sized man -- both with and without a seat belt -- would avoid serious injury (as defined by the standard) when his car slams into a fixed barrier at thirty miles per hour.
Air bags installed in response to this mandate saved thousands of lives. Because air bags are designed to inflate almost instantly upon impact, however, the force of the inflation can injure, even kill, smaller occupants sitting too close to the deploying bag. See Federal Motor Vehicle Safety Standards; Occupant Crash Protection, 62 Fed. Reg. 12,960, 12,960-61 (Mar. 19, 1997). As of February 1997, NHTSA had documented thirty-eight crashes in which the force of a deploying air bag had killed a child. Id. at 12,960. Twenty-one drivers and two adult passengers had also died from airbag induced injuries. Id. at 12,960-61.
Reacting to these fatalities and to a growing public outcry, NHTSA amended Standard No. 208 in March 1997 to encourage manufacturers to redesign air bags quickly to make them inflate with less force. Id. at 12,961-62. Under the revised rule, manufacturers no longer had to test vehicles using the thirty mile per hour unbelted crash test. Instead, they could use a thirty mile per hour "sled test" -- a test roughly equivalent to a twenty-two mile per hour crash test -- to measure vehicle ability to protect fiftieth-percentile male dummies. See id. at 12,974; 65 Fed. Reg. at 30,689. In a sled test, a vehicle placed on a sled is accelerated rapidly backward, but never actually crashed into a barrier. 65 Fed. Reg. at 30,738.
As the car moves backward, the test dummies lurch forward, simulating an actual crash; the cars' air bags are manually deployed at a pre-selected time. Id. By permitting auto makers to certify their vehicles' crash-protection systems through this less stringent safety test, NHTSA made it easier for them to maintain compliance with Standard No. 208 while "depowering" -- i.e., reducing the force of -- air bag inflation.
Although recognizing that depowered air bags could reduce protection for unbelted adults and teenagers, NHTSA concluded that "the opportunity to avoid the deaths of a significant number of children who would otherwise be fatally injured by air bags" justified its depowering rule. 62 Fed. Reg. at 12,964. The agency maintained that "it is not acceptable that a safety device cause a significant number of fatalities in circumstances in which fatal or serious injuries would not otherwise occur." Id. Indeed, NHTSA found it "particularly unacceptable that the vehicle occupants being fatally injured are young children[ ] and that the number of those deaths is steadily growing." Id. Nevertheless, because of the possible safety trade-offs associated with bag depowering and because expected technological advances could reduce risks to children and small women without diminishing protection for unbelted adults and teens, NHTSA's 1997 rule provided that the sled test option would terminate in September 2001. See id. at 12,967-69. The agency explained:
[T]here is no need to permanently reduce Standard No. 208's performance requirements to enable manufacturers to fully address the adverse effects of air bags. This is because there are various alternatives, albeit with longer technological development and implementation leadtimes than depowering, that are already allowed by the standard and that appear likely to result in equal or greater benefits than depowering without creating adverse safety tradeoffs. Thus, the agency views depowering as an interim approach, while the vehicle manufacturers develop and implement better solutions.
Id. at 12,968. Responding to the increased flexibility provided by the sled test option, manufacturers began installing what are known as "redesigned air bags" -- air bags designed to pass the sled test. See 65 Fed. Reg. at 30,738. Although many redesigned air bags deployed with less force than their predecessors, they still inflated with more power than needed to comply with the sled test. Id.; id. at 30,689.
In June 1998, Congress stepped in and directed NHTSA to require manufacturers to install a new generation of air bags known as "advanced air bags." In language central to the issue before us, the Transportation Equity Act for the 21st Century (TEA 21) provides:
[T]he Secretary of Transportation shall issue a notice of proposed rulemaking to improve occupant protection for occupants of different sizes, belted and unbelted, under Federal Motor Vehicle Safety Standard No. 208, while minimizing the risk to infants, children, and other occupants from injuries and deaths caused by air bags, by means that include advanced air bags.
Pub. L. No. 105-178, § 7103(a)(1), 112 Stat. 107, 466 (1998) (codified at 49 U.S.C. § 30127 note (2000)). "Advanced air bags" incorporate new technologies or designs that either prevent air bags from deploying in inappropriate circumstances or ensure that they inflate in low-risk ways. See 65 Fed. Reg. at 30,738. For example, advanced air bags could include a device that senses the weight of the occupant and then prevents the air bag from activating if the occupant is a child. See id. (defining "occupant weight sensors").
Also significant to the challenge before us, TEA 21 superseded NHTSA's 1997 decision to sunset the sled test by September 2001, providing instead that the "requirements of S13 of Standard No. 208 [prescribing the thirty mile per hour unbelted vehicle sled test] shall remain in effect unless and ...