Petition — Pacific Legal Foundation v. Department of Transportation

Supreme Court brief1979

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7 Supreme Court, U.

FILED

— MAY 4 1979

ss Court of the x , es ites: JR., CLERK

OcTOBER TERM, 1978

ae W816 77

PaciFic LEGAL FOUNDATION, et al.,

Petitioners,

Vv.

DEPARTMENT OF TRANSPORTATION,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

to the United States Court of Appeals

for the District of Columbia Circuit

RONALD A. “UMBRUN

ROBERT K. BEST

JOHN H. FINDLEY

Pacific Legal Foundation

455 Capitol Mall, Suite 465

Sacramento, California 95814

Telephone: (916) 444-0154

RAYMOND M. MOMBOISSE

Pacific Legal Foundation

1990 M Street, N.W., Suite 550

Washington, D.C. 20036

Telephone: (202) 466-2686

Attorneys for Petitioners

SAM KAZMAN

Pacific Legal Foundation

1990 M Street, N.W., Suite 550

Washington, D.C. 20036

Telephone: (202) 466-2686

Of Counsel

TABLE OF CONTENTS

TABLE OF AUTHORITIES CITED .......................

Nee cided kasccapscsbencdeccssensenssonsescnes

ial iadtianinapnnnincavasasiavacasenssnccescone

QUESTIONS PRESENTED FOR REVIEW ..........

STATUTORY AND REGULATORY PROVI-

TT cc ccccossesescescusscsese:

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

A. History Of the Proceedings.............................

B. The Nature of Passive Restraints ..................

td Jurisdiction and Decision of the Court of

es cad ckdsssndastnedscnstecnessesescece

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

A. The Agency’s Concealment of Data, Ig-

nored by the Court of Appeals, Materially

Tainted the Issuance of an Order Which

Will Affect the Lives of Virtually All Ameri-

aah dencsceneceursacancecevsessacees

B. In Finding that the Secretary Considered

Public Reaction Despite His Own State-

ments to the Contrary, the Court of Appeals

Went Beyond the Limits of Judicial Review .

risa ct cdcsnasncsssbcesecccossceceseseseneses

APPENDICES

A. Opinion of the Court of Appeals....................

B. Judgment of the Court of Appeals.................

Mm WwW Ww Ww

ae Administrative Procedure Act, 5 U.S.C.

§§ 553, 706

PERRET HEHEHE HEHEHE HEHEHE E EE

D. National Traffic and Motor Vehicle Safety

Act of 1966, as amended, 15 U.S.C.

§§ 1381, et seq

49 C.F.R. § 571.208 (1977)

tems (June 30, 1977)

TABLE OF AUTHORITIES CITED

Cases

Association of National Advertisers, Inc. v. Fed-

eral Trade Commission, 460 F. Supp. 966

TRE | NaN CeRE ORE AE A Wa Ar OO Ry SU Aee eR

Automotive Parts & Accessories Association v.

Boyd, 407 F.2d 330 (D.C. Cir. 1968) ....0.....00..

Braniff Away Inc. v. Civil Aeronautics Board,

379 F.2d 453 (D.C. Cir. 1967)

Burlington Truck Lines, Inc. vy. United States,

pi Rie ee Pa ey eae ees

Camp Vv. Pitts, 411 U.S. 138 (1973) vooccccccccccecceees

Chrysler Corp. v. Department of Transportation,

472 F.2d 659 (6th Cir. 1972) oooccccccccccccccceeees

Citizens to Preserve Overton Park, Inc. v. Volpe,

SOE TD, GE ETOP hala vari ciisilecd eocerteibarbedesnncs

Ethyl Corp. v. Environmental Protection Agency,

541 F.2d 1 (D.C. Cir. 1976), cert. denied, 426

RAs POR ENO MOR Mclesics lana aGnaitse tinted ininiants

Goland v. CIA, No. 76-0166 (D.C. Cir.

March 28, 1979)

SHH HOHE HEHEHE HEHEHE EEE EH EEE E EEE EEE EE EEE EEE EES

OPP eee eee eee eee eee eee ee ee eee eee eee eee eee

E. __ Federal Motor Vehicle Safety Standard 208,

PPP eee eee eee eee eee eee)

F. DOT, Final Rule, Occupant Restraint Sys-

POPP eee eee eee ee eee eee ee eee ee eee eee

Page

ill

National Courier Association v. Board of Gov-

ernors of the Federal Reserve System, 516 F.2d

1229 (D.C. Cir. 1975) ....ccescceessesseseteseseenenenennens

Paccar, Inc. v. National Highway Traffic Safety

Administration, 573 F.2d 632 (9th Cir. 1978),

cert. denied, _—. U.S. —~—, 99 S. Ct. 184

(1978) ..cccccscccsssssscceseersesseseenenessenserenenenenenneaceess

Securities and Exchange Commission v. Chenery

Corp., 318 U.S. 80 (1943) ....ccesceessessseeeteeseseees

Vermont Yankee Nuclear Power Corp. v. Natural

Resources Defense Council, Inc., 435 U.S. 519

(1978) c.ecccccccscssescssscesesseneeseenesessenstesnesensenenensasees

Weyerhaeuser Co. v. Costle, 590 F.2d 1011 (D.C.

Cir. 1978) ....cc.ccccsccccccssssccssccscercesecssscssessenssescennes

Statutes

Administrative Procedure Act., 5 U.S.C. § 551, et

SOQ. cessscsssessessscccsccsesssscccersesensccescssnnsceseneensaesesenenens

Freedom of Information Act, 5 U.S.C. § 552........

§ 552(D) (5) .cccsccssssccscssssecsersenserseenssesensenseenennenss

15 U.S.C. § 706(2) (A))..ccccccsscsesccessecesscecesereseeenees

National Traffic and Motor Vehicle Safety Act of

1966, as amended, 15 U.S.C. §§ 1381, et seq. ...

B13OT cc ccccscsccssensessseseeesesseecescssceenesnesseseeeees

BS 13992 w.ccccccccccsccercsssssccssescnnssccersscsseccenecserancesenseess

§ 1392( a) ...cscsccecccssssssrcereeeneerereceessasensenneenensensenes

§ 1392 f) ..ncccccccccsecerssccecnsscsnescencssssssscesseesersencenees

§ 1394(a)( 1) ncecccccccccssscsccressessereeeseesseseeenenenees

§ 1394( a) (4) .ccccccccssssesscsseeseereenenenneneseeseesesneenens

15 ULS.C. § L41LOD(b)-(d) ...ceccecceceeeceeeeeneeeeeeeeeeees

QB UKS.C. § 1254( 1) ..ccccccscccccrsccecsccsercsensecceesensenees

Page

10, 13

14,17

12,

3-4,

Ww oo OO WwW

nA nN WW WwW WwW WwW O

DOT and Related Agencies Appropriation Act

of 1979, Pub. L. No. 95-335, § 317, 92 Stat.

9D CEST) accceiicsanesntinegsicea dei ee ee

Federal Regulations

Federal Motor Vehicle Safety Standard 208, 49

CFR. § 373.206 (0008) a ae

§ 371.208 $4.1. 3€a) cnceanc ncaa eo

Miscellaneous

C. Cooke, NHTSA, Usage of Occupant Restraint

Systems ( July, 1976) ccsiiguer oe

Department of Transportation, Final Rule, Occu-

pant Restraint Systems (June 30, 1977)............

Department of Transportation, Proposed Rule,

Occupant Crash Protection (March 24, 1977)...

Department of Transportation, The Secretary’s

Decision Concerning Motor Vehicle Occupant

Crash Protection (December 6, d. ) aetRetie

National Highway Traffic Safety Administration,

An Analysis of Fatalities in Cars Equipped with

Air Bags (undated) .cusintéiale eae

National Highway Traffic Safety Administration,

Explanation of Rule Making Activity (July 26,

1977) .......<essoseaceeneesnsnesneinaien niin ann

Office of Statistics and Analysis, NHTSA,

Statistical Analysis of Air Bag Deaths (April 9,

1 , ) Ee Le ge

Nn nN

IN THE

Supreme Court of the United States

OcTOBER TERM, 1978

No.

—_————

Paciric LEGAL FOUNDATION, el al..

Petitioners,

¥.

DEPARTMENT OF TRANSPORTATION.

Respondent.

PETITION FOR A WRIT OF CERTIORARI

to the United States Court of Appeals

for the District of Columbia Circuit

The petitioners, Pacific Legal Foundation, a niger

public interest organization, William R. ee Fe

Albert Ferri, Jr., Thomas L. Fitzpatrick, Vick A. om ws

Anna Marie MacArthur, Debra A. Martin, oe y A

Olley, W. Hugh O’Riordan, and Donan * ee

respectfully pray that a writ of certiorar ee re ‘yh

the opinion and judgment of the United States ou

Appeals for the District of Columbia Circuit.

OPINION BELOW

) The opinion of the court of

Is set forth in Appendix A.

JURISDICTION

The judgment of the court of appe.

was entered on February 1, 1979. The court of

denied a timely petition for rehearing en banc on

1979. The jurisdiction of this Court is invoked

U.S.C. § 1394( a)(4) and 28 U.S.C. § 1254( | oe S

QUESTIONS PRESENTED FOR REVIEW

by Whether, in ignoring the Departme

* Ng Ss concealment of data regarding

number a a

appeals begin Pade. equipped cars, the court of

Poe RY Bi in its responsibility to insure procedural

€ promulgation of ; Nel :

Americans. an order affecting all

nt of Trans-

the xcessive

2. W — ;

Secretary etic pe = appeals, in finding that the

despite his own pra aes considered public reaction

the limits of j ih ements to the contrary, so exceeded

¢ limits of judicial review as to warrant the exere; cf

this Court’s supervisory power. e exercise of

appeals, not yet reported,

als (Appendix B)

appeals

March 5,

STATUTORY AND REGULATORY PROVISIONS

INVOLVED

The relevant portions of the Administrative Proce-

dure Act. 5 U.S.C. §§ 551, ef seq., the National Traffic and

Motor Vehicle Safety Act of 1966, as amended, 15 U.S.C.

§§ 1381, et seg., and Federal Motor Vehicle Safety Stan-

dard 208. 49 C.F.R. § 571.208 (1977), are set forth in

Appendices C, D, and FE respectively.

STATEMENT OF THE CASE

A. History of the Proceedings

The National Traffic and Motor Vehicle Safety Act

authorizes the Department of Transportation (hereinafter

DOT) to establish motor vehicle safety standards to

reduce the toll of deaths and injuries resulting from traffic

accidents. 15 U.S.C. §§ 1381, 1392. Such standards must

be practicable, must meet the need for safety and be set

forth objectively, and must be based upon a consideration

of relevant available data. 15 U.S.C. §§ 1391(2),

1392(a) and (f). Judicial review of such standards takes

place under the “arbitrary and capricious” standard for

informal rulemaking, 5 U.S.C. § 706(2)(A), and under

the substantive criteria set forth in the Safety Act. Opinion

of the court of appeals (hereinafter Opinion ), Appendix A

at 9.

In 1970, out of concern for the low usage of automo-

tive seat belts, DOT issued its first rule requiring the

installation of passive restraints in cars. Unlike con-

ventional seat belts, which must be fastened before they,

are effective, passive restraints offer protection without the

need of action by car occupants. DOT’s passive restraint

requirement, subsequently modified, was remanded be-

fore taking effect by the Court of Appeals for the Sixth

Circuit on the ground that the standard did not meet the

Safety Act’s requirement of objectivity. Chrysler Corp. v.

Department of Transportation, 472 F.2d 659 (6th Cir.

1972. )1

The remanded rule remained suspended until

December, 1976, when then-Secretary of Transportation

William T. Coleman, Jr., proposed a massive demonstra-

tion program of passive restraints rather than mandate the

installation of devices with which the rublic was unfamil-

iar and which it might ultimately reject. DOT, The

Secretary’s Decision Concerning Motor Vehicle Occupant

Crash Protection (December 6, 1976) (hereinafter Cole-

man Decision), Joint Appendix below at 65-66, 111-19

(hereinafter JA). Under the program which he nego-

tiated, four automobile manufacturers would produce

one-half million 1980-81 model cars equipped with pas-

Sive restraints. Opinion at 7.

Four months after Coleman’s decision the new Secre-

tary of Transportation, Brock Adams, reopened the

rulemaking proceeding because, among other reasons,

“public acceptance or rejection of passive restraints is not

one of the statutory criteria which the Department is

charged by law to apply in establishing standards.” DOT,

Final Rule, Occupant Restraint Systems (June 30, 1977)

(hereinafter Adams Decision), Appendix F hereto at 51.

' The decision left standing another portion of the rule requiring

ignition interlocks in new cars. These devices prevented operation of

a car’s starting system unless all front seat occupants had buckled their

seat belts. Public opposition to interlocks was so strong that Congress

prohibited their requirement by DOT. Opinion at 6.

On June 30, 1977, Secretary Adams announced the

final rule here at issue. Adams Decision, Appendix F.

The new rule amends Federal Motor Vehicle Standard

208, 49 C.F.R. § 571.208, to require the provision of front

seat passive restraints in all automobiles, beginning with

larger size cars manufactured after August 31, 1981, and

extending, in two phases, to vehicles of all sizes produced

after August 31, 1983. The Secretary’s decision also

resulted in the termination of the Coleman demonstration

program. Letter from Ford Motor Company to Brock

Adams (July 13, 1977), and letter from General Motors

Corporation to Brock Adams (August 24, 1977), JA at

984-85, 1098-99.

Because the new safety standard involves a nonbelt

restraint system, it was subject to congressional review

pursuant to 15 U.S.C. §§ 1410b(b)-(d). Neither house

disapproved the standard. In 1978, however, Congress

specifically prohibited the use of appropriated 1979 DOT

funds to implement or enforce the air bag requirement.

DOT and Related Agencies Appropriation Act of 1979,

Pub. L. No. 95-335, § 317, 92 Stat. 450 (1978).

B. The Nature of Passive Restraints

Amended Standard 208 requires that front seat posi-

tions in new cars be provided with specified levels of

frontal crash protection “by means that require no action

by vehicle occupants.” 49 C.F.R. § 571.208 S4.1.3(a).

There are only two existing restraint systems capable of

providing such passive protection—air bags and Passive

belts. Air bags are inflatable cushions stored in the

steering column and dashboard of a car; they are designed

to inflate when the car is involved in a frontal collision of

moderate or greater severity and thus cushion the occu-

pant’s impact with the interior of the car.

Unlike the lap-shoulder belts now found in cars, air bags

are effective only in frontal collisions and provide no

protection in rollovers or side impacts. Cars equipped

with air bags are thus still required to contain front seat

lap belts as well, though they need no longer have

shoulder belts. 49 C.F.R. § 571.208 $4.1.3(c)(2); see,

e.g, National Highway Traffic Safety Administration (a

unit of “YOT, hereinafter NHTSA), Explanation of Rule

Making Activity (July 26, 1977), JA at 212. Because

occupants of air bag equipped cars must actively fasten

their lap belts for full protection, the air bag “is not a

“iyi, Passive system.” Coleman Decision, JA at

n.35.

, Passive belts automatically enclose car occupants, by

either mechanical or electronic means, when they enter or

start a car. Passive belts are currently feasible only in cars

which have front bucket seats. For this and other reasons,

DOT estimates that 75% of the cars manufactured under

Pye o rule will be equipped with air bags. Opinion at

n.6.

Secretary Adams projected that if all cars on the road

were equipped with air bags, the devices would annually

prevent 9,000 deaths beyond those currently prevented by

lap-shoulder belts, due to the low usage of conventional

belts. Opinion at 8. On an individual basis, however

conventional lap-shoulder belts are “virtually identical” in

effectiveness to the air bag/lap belt system, according to

DOT. Coleman Decision, JA at 130. Air bags do present

several new hazards, however, the major one being inad-

vertent deployment and possible loss of control as a result.

Opinion at 18. They must also be replaced after each

deployment at a cost of several hundred dollars. Adams

Decision, Appendix F at 62.

Secretary Adams’ projection of the air bag’s safety

benefits was based on effectiveness estimates derived from

laboratory testing of the device. Opinion at 12-13. There

was, however, a limited amount of real-world experience

with air bags; 12,000 air bag cars have been manufac-

tured, of which approximately 10,000 were sold to the

public between 1973 and 1976. The Secretary found that

the field experience of these cars was “encouraging.”

Adams Decision, Appendix F at 59. The court of appeals

stated, however:

“(flive deaths have occurred in airbag cars in

frontal crashes. By the agency’s estimates of

airbag effectiveness, no more than one fatality

would have been expected.” Opinion at 14 n.47.

Secretary Adens claimed that the number of deaths

was “much too small to be statistically significant.” Adams

Decision, Appendix F at 59. At the time the Secretary

made his decision, DOT possessed only one document

dealing with statistical significance. That document

stated:

“The discrepancy between the actual and ex-

pected numbers of deaths is statistically signifi-

cant at the 99% confidence level ....” Office of

Statistics and Analysis, NHTSA, Statistical

Analysis of Air Bag Deaths \ (April 9, 1976),

added to the record by order of the court of

appeals (October 31, 1978).

The public did not know of this study when it

participated in the DOT rulemaking, and Congress was

unaware of it while reviewing the Secretary’s action. This

is because DOT concealed this document for two and one-

half years, until forced to disclose it by petitioners’

vale under the Freedom of Information Act, 5 U.S.C.

52.2

C. Jurisdiction and Decision of the Court of Appeals

In September, 1977, petitioners requested the court of

appeals to review the Secretary’s order pursuant to 15

U.S.C. § 1394(a)(1).3 Petitioners contended that the

Secretary had acted arbitrarily and capriciously in

mandating a device associated with an excessive number

of traffic fatalities and that the Secretary had illegally

refused to consider public reaction.

' On February 1, 1979, the court of appeals entered its

judgment affirming the Secretary’s order. The court held

that Secretary Adams did not abuse his discretion in

2 Petitioners learned of the existence of the document as a result

of a request to NHTSA in July, 1978, for all documents relating to the

Statistical significance of the air bag fatalities. In response, NHTSA

stated that only one such document existed and that NHTSA was

withholding that study on the ground that it was a deliberative

memorandum exempt from disclosure under 5 U.S.C. § 552( b)(5).

These facts are set forth in Petitioners’ Motion for Supplementation of

the Record (September 15, 1978), and the memorandum and

correspondence attached thereto.

NHTSA finally released the document in September, 1978, after

counsel for DOT was informed that failure to do so would result in

petitioners moving the court of appeals for an order compelling

production to complete the record on review. Petitioners’ Reply to

Respondent's Response at 2-3 n.1 (October 12, 1978). Five days after

petitioners filed the document with the court, and fourteen months

after the Secretary issued his order, NHTSA released a new report

challenging the conclusions of the prior study. NHTSA, An Analysis

oy Fatalities in Cars Equipped with Air Bags (undated). Both

ao ope to the record on review by court order on

3 The action was later consolidated with a petition f

filed by Ralph Nader and Public Citizen which seca to ies aie

eaiaaal ie eprenger for passive restraints. Ford Motor Company

ened solely for the purpose of ati

schedule. Brief of instead Radoar — pitas

mandating passive restraints. The court made no mention

of the agency’s concealment of its air bag fatality study.

On the question of public reaction, the court agreed with

petitioners that the Safety Act requires the Secretary to

consider public reaction. It nonetheless held that

“despite the Secretary’s claim that he need not consider

the [public] response to the new standard,” he never-

theless did take the issue into account. Opinion at 16.

REASONS FOR GRANTING THE WRIT

The order of the Secretary of Transportation will

affect every person who sets foot inside a car. In each of

the tens of thousands of automobile collisions which occur

yearly, the Secretary’s order will become, without exagger-

ation, a matter of potential life or death. Yet on an issue

of this magnitude, the agency entrusted with the public

safety dismissed as statistically insignificant the most

crucial real-world trial of air bags, the test of whether or

not they actually save lives. And in a rulemaking required

by law to proceed on the basis of an open record, the

agency concealed the one document which dealt with the

true significance of the disproportionately high number of

fatalities experienced in air bag cars.

A. The Agency’s Concealment of Data, Ignored by the

Court of Appeals, Materially Tainted the Issuance of

an Order Which Will Affect the Lives of Virtually All

Americans

DOT stated that its estimates of air bag effectiveness

were based on “engineering judgment and laboratory

simulations.” Coleman Decision, JA at 98. Field ex-

peric~ce with the device played no part in DOT’s calcu-

lation of the effectiveness of the air bag in various collision

modes. The agency recognized that “[s Jimulations can ...

never duplicate the full spectrum of real-world

collisions ....” Jd. Jn light of the uncertainty of this basis

for predictions, the court of appeals stated that “DOT

must monitor closely the road experience with any stan-

dard based on experimental data ....” Opinion at 13.

DOT, however, has displayed a pattern of concealing

or ignoring such road experience. Only last year, the

Ninth Circuit Court of Appeals set aside a truck brake

standard because the agency failed to respond to the

adverse real-world behavior of a device it had mandated.

Paccar, Inc. v. National Highway Traffic Safety Adminis-

tration, 573 F.2d 632 (9th Cir. 1978), cert. denied, —_

U.S. __, 99 S. Ct. 184 (1978). Scores of accidents

implicating the device, involving over eighteen fatalities,

occurred before the standard was set aside. American

Public Transit Association, Fetition for Exemption from

Standard 121 (September 16, 1977), attached to Petition-

ers’ Principal Brief below at A-24.

In the instant rulemaking the Secretary dismissed the

disproportionate number of air bag fatalities as ‘“*much too

small to be statistically significant.”4 Adams Decision,

* The court of appeals found that several of the excessive air bag

fatalities could not have been prevented by any restraint system, citing

as support the new fatality study which DOT issued after releasing the

previously withheld report. Opinion at 14 n.49. To the extent that the

court relied on this document, its action is inconsistent with the rule

that a court review the record which was before the decision maker,

and not a post hoc record manufactured after a decision has been

made—in this case, a document issued fourteen months after the

(fvotnote continued)

Appendix F at 59. The Secretary cited no document and

gave no analysis to support this claim; it was simply his

bare assertion. As subsequent events showed, DOT in fact

had no support for this contention. What the agency did

have was a study by one of it own statisticians that directly

refuted the Secretary’s statement:

“{T]he actual number of deaths is at least four

times as high as the expected number. The

discrepancy between the actual and expected

numbers of deaths is statistically significant at

the 99% confidence level ( Using the Poisson test,

as shown ....

“The field data, although limited in quantity

and scope, thus raise a striking contrast between

actual and predicted experience. The statistical

evidence is sufficient to reject the hypothesis that

air bags are 55% effective in reducing fatalities in

all frontal impacts. 6]

(footnote continued) :

Secretary’s order for the sole purpose of refuting the previously

concealed NHTSA report.

“{T]he focal point for judicial review should be the

administrative record already in existence, not some new

record made initially in the reviewing court.” Camp v.

Pitts, 411 U.S. 138, 142 (1973). See also Burlington Truck

Lines, Inc. v. United States, 371 U.S. 156, 168-69 (1962);

Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S.

402, 420 (1971).

The on-site investigation reports prepared by DOT on the

accidents, moreover, contain no support for the agency’s claim of

unpreventability.

5 The agency subsequently raised its effectiveness esumate for the

device to 65%. NHTSA, Explanation of Rule Making Action, JA at

259.

“The high incidence of fatalities may be sugges-

tive that the air bag is totally ineffective in

fatality reduction.” Office of Statistics and Anal-

ysis, NHTSA, Statistical Analysis of Air Bag

Deaths \-2, 3 (April 9, 1976).

Despite the statutory requirement that the rulemaking

record contain all the evidence before the agency, DOT

concealed this document for two and one-half years.§

In affirming the Secretary’s order, the court of appeals

made no mention whatsoever of DOT’s concealment of

the fatality study. Yet the court has elsewhere noted its

duty, “as the exponent of procedural fairness,” to examine

whether an agency “has infused the administrative process

with the degree of openness, explanation, and participa-

tory democracy required by the APA.” Weyerhaeuser Co.

v. Costle, 590 F.2d 1011, 1027 (D.C. Cir. 1978) ( footnote

omitted ). And in a recent opinion, the court characterized

another agency’s failure to disclose documents as “‘natu-

rally cast{ing] a cloud over the entire proceeding.” Go-

land v. CIA, No. 76-0166, slip op. at 2 (D.C. Cir.

March 28, 1979).

The court went on to accept without reservation

DOT’s “expressed ... intention to conduct an ‘intensive

monitoring program to oversee the implementation’ ” of

the Secretary’s order, despite the agency’s behavior in this

6 Under 15 U.S.C. § 1394(a)(1), the rulemaking record is to be

filed with the reviewing court pursuant to 28 U.S.C. § 2112, which

defines the record to include, among other things, the “evidence ...

before the agency.” 28 U.S.C. § 2112(b). The District of Columbia

Circuit has construed this to encompass “any document that might

have influenced the agency’s decision,” including both “the evidence

relied upon and the evidence discarded.” National Courier Ass’n v.

Board of Governors of the Fed. Reserve Sys., 516 F.2d 1229, 1241

(D.C. Cir. 1975); Ethyl Corp. v. Environmental Protection Agency, 541

F.2d 1, 36 (D.C. Cir. 1976), cert. denied, 426 U.S. 941 (1976).

rulemaking?’ and despite its failure to respond to adverse

road experience in Paccar. Opinion at 13 n.45. The

court’s failure to even consider DOT’s concealment of

data in affirming an order of this magnitude warrants this

Court’s exercise of its supervisory power.

B. In Finding that the Secretary Considered Public Re-

action Despite His Own Statements to the Contrary,

the Court of Appeals Went Beyond the Limits of

Judicial Review ss

Former Secretary Coleman’s decision not to require

passive restraints was based essentially on the issue of

public reaction. He would not mandate a device with

which the public was unfamiliar and which it might

ultimately reject. Coleman Decision, JA at 65-66, 111-19.

When he reopened the rulemaking, Secretary Adams

stated that he was:

“concerned that this recent decision by the

Department may not be entirely consistent with

the statutory mandate of the National Traffic

and Motor Vehicle Safety Act ....” DOT, Pro-

posed Rule, Occupant Crash Protection

(March 24, 1977), JA at 145.

The indication that public reaction was an extrastatutory

consideration was repeated when Secretary Adams issued

his order, explaining that he had reconsidered his pre-

decessor’s decision because:

“public acceptance or rejection of passive re-

straints is not one of the statutory criteria which

7 DOT also issued a number of public service brochures which

suggested that lap belts need not be used in air bag cars. The court

found such statements to be potentially “misleading.” Opinion at

18 n.63.

the Department is charged by law to apply in

establishing standards.” Adams _ Decision,

Appendix F at 51.

The Secretary’s treatment of public reaction was a

major issue in the action below. Agreeing with petitioners,

the court of appeals held that:

“the agency cannot fulfill its statutory responsi-

bility unless it considers popular reaction.”’ Opin-

ion at 15-16.

Yet the court went on to hold that the Secretary did

adequately consider this factor:

“Despite the Secretary’s claim that he need not

consider. the response to the new standard, he

adequately justified his aciion in terms of the

anticipated public reaction.” Opinion at 16.

These holdings are irreconcilable. Once the Secretary

determined that public reaction was an extrastatutory

factor, he could not possibly have given it adequate

consideration, for to do so would have been to act beyond

his statutory duties as he understood them.

This Court has pointed out the function in judicial

review of an administrator’s explanation of his decision:

“We have made it abundantly clear before that

when there is a conten:poraneous explanation of

the agency decision, the validity of that action

must ‘stand or fall on the propriety of that

finding .....”" Vermont Yankee Nuclear Power

Corp. v. Natural Resources Defense Council,

Inc., 435 U.S. 519, 549 (1978), quoting Camp v.

Pitts, 411 U.S. 138, 143 (1973), and citing

Securities and Exchange Commission v. Chenery

Corp., 318 U.S. 80 (1943).

The court of appeals ignored the Secretary’s explanation

of what he considered, substituting instead its own version

of the decision making process.

The only consideration which the Secretary gave to

public reaction was to prejudge the issue at the outset of

the rulemaking. When he first reopened the proceeding,

Secretary Adams stated:

“TI cannot agree that consumers would respond to

Passive restraints in the same fashion as the

ignition-interlock.” DOT, Proposed Rule, Occu-

pant Crash Protection (March 24, 1977), JA at

146.

In the Secretary’s order itself, public reaction is mentioned

in neither the “Discussion of Issues” nor in the section on

“Other Considerations.”® Adams Decision, Appendix F at

52-75, 75-78. It appears only in the Secretary’s discussion

of the “History of Standard No. 208.” Appendix F at

8 The court stated that, on the issues of air bag cost and

maintenance, the Secretary “explicitly discussed the relationship

between the revised Standard and public attitudes.” Opinion at 16.

This is erroneous. The cited discussions of cost and maintenance do

not contain a single reference to public attitudes, let alone any explicit

discussion of the relationship between those attitudes and the stan-

dard. See Adams Decision, Appendix F at 60-63, 67.

The court also stated that the Secretary considered public

reaction by allowing for some willful deactivation of air bags when he

projected a 98% “usage” rate for the device. Opinion at 17 n.61 and

accompanying text. The record makes clear that the 98% figure is not

a “usage” rate at all; it is an allowance for air bags which are either

unreliable or which have not been replaced after previously

deploying. C. Cooke, NHTSA, Usage of Occupant Restraint Systems

(July, 1976), JA at 447. In projecting air bag benefits, DOT made no

allowance whatsoever for willful deactivation of the devices, despite

the widespread fear of inadvertent deployment expressed in the

thousands of letters received by DOT opposing the rule. Over one

hundred letters contained explicit statements of intent to deactivate air

bags if they were mandated. JA at 1294, 1298-1419A, 1422-41.

48-52. Public reaction was thus not even an issue during

the rulemaking; it was a closed matter predetermined by

Secretary Adams at the outset of the proceeding.

Given Secretary Adams’ claim that public reaction

could not legally be considered, together with his pre-

judgment of what that reaction would be in any case,

there was no reason during the ensuing comment period

for anyone to seriously treat any aspect of public reaction

to passive restraints—whether, for example, widespread

deactivation of air bags would occur due to fear of

inadvertent deployment, or whether the public would hoid

on to their used cars rather than purchase cars manufac-

tured under the mandate. The court’s affirmance of the

Secretary’s order in spite of this requires it to speculate as

to what the record would have contained had the proceed-

ing not been so tainted and as to what decision the

Secretary would have made on the basis of such a record.

Yet in a similar instance the court of appeals has stated

that it “cannot be sure that further and ultimately con-

vincing public criticism ... would not have been forthcom-

ing had it been invited by the Agency.” Weyerhaeuser Co.

v. Costle, 590 F.2d at 1031 (footnote omitted ).

By engaging in such speculation, the court violates the

basic limitation on judicial review of agency action which

it itself once set forth:

{T]he limited ability of a court to assume, as a

judicial function, even for the purpose of affirma-

tion, the distinctive discretion assigned to the

9 The Secretary’s prejudgment thus raises a serious due process

question as to the fairness of the decision making process itself. See

Association of Nat’l Advertisers, Inc. v. Federal Trade Commission,

460 F. Supp. 966 (D.D.C. 1978), disqualifying an agency commis-

sioner on the ground that he prejudged issues of fact.

agency.” Braniff Airways, Inc. v. Civil Aeronau-

tics Board, 379 F.2d 453 (D.C. Cir. 1967)

(emphasis added).

As this Court has stated:

“For purposes of affirming no less than reversing

its orders, an appellate court cannot intrude upon

the domain which Congress has exclusively en-

trusted to an administrative agency.” Securities

and Exchange Commission v. Chenery Corp., 318

US. at 88.

CONCLUSION

The court of appeals stated that in reviewing the

Secretary’s order:

“‘{t]he paramount objective is to see whether the

agency, given an essentially legislative task to

perform, has carried it out in a manner calcu-

lated to negate the dangers of arbitrariness and

irrationality in the formulation of rules for gener-

al application in the future.” Opinion at 11,

quoting Automotive Parts & Accessories Associ-

ation v. Boyd, 407 F.2d 330, 338 (D.C. Cir.

1968).

On an issue of life and death proportions, an agency

entrusted with the public safety concealed the one study

which indicated how badly its predictions were faring in

the real world. Few actions could have been more

calculated to insure arbitrariness and irrationality in this

rulemaking.

For this reason and for the other reasons set forth

above, a writ of certiorari should issue to review the

judgment and opinion of the Court of Appeals for the

District of Columbia Circuit.

Respectfully submitted,

RONALD A. ZUMBRUN

ROBERT K. Best

JOHN H. FINDLEY

Pacific Legal Foundation

455 Capitol Mall, Suite 465

Sacramento, California 95814

Telephone: (916) 444-0154

RAYMOND M. MOMBOISSE

Pacific Legal Foundation

1990 M Street, N.W., Suite 550

Washington, D.C. 20036

Telephone: (202) 466-2686

Attorneys for Petitioners

SAM KAZMAN

Pacific Legal Foundation

1990 M Street, N.W., Suite 550

Washington, D.C. 20036

Telephone: (202) 466-2686

Of Counsel

May, 1979

(Appendices Follow )

Appendices

APPENDIX A

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 77-1797

PACIFIC LEGAL FOUNDATION et al., PETITIONERS

Vv.

DEPARTMENT OF TRANSPORTATION, RESPONDENT

No. 78-1034

RALPH NADER AND PUBLIC CITIZEN, PETITIONERS

BrRocK ADAMS, Secretary of Transportation,

RESPONDENT

FORD MOTOR COMPANY, INTERVENOR

Petitions for Review of an Order

of the Department of Transportation

Argued November 21, 1978

Decided February 1, 1979

Sam Kazman, with whom Ronald A. Zumbrun, Robert K.

Best, Raymond M. Momboisse, John H. Findley, Albert Ferri, Jr.,

and Donald C. Simpson were on the brief, for petitioners Pacific

Legal Foundation ef al.

Alan B. Morrison, with whom Thomas K. Wilka was on the

brief, for petitioners Ralph Nader ef al.

Paul Blankenstein, Attorney, Department of Justice, with

whom Barbara Allen Babcock, Assistant Attorney General,

Joseph J. Levin, Jr., Chief Counsel, and David W. Allen,

Assistant Chief Counsel, National Highway Traffic Safety Ad-

ministration, and Leonard Schaitman, Attorney, Department of

Justice, were on the brief, for respondents Brock Adams and

Department of Transportation.

John H. Pickering, with whom William R. Perlik, William J.

Perlstein, and Donald C. Langevoort were on the brief, for

intervenor Ford Motor Company.

Before WRIGHT, Chief Judge, WiLKEY, Circuit Judge and

FLANNERY,* District Judge.

Opinion for the court filed by Chief Judge WRIGHT.

WRIGHT, Chief Judge: Like Scylla and Charybdis, the

petitioners in these two cases challenge from opposite

sides Motor Vehicle Safety Standard 208, which requires

“passive restraints,” such as automatic seatbelts or air-

bags, in all passenger cars sold in this country after

September 1, 1983.1 In No. 77-1797 petitioners argue that

there is insufficient empirical support for Standard 208,

and that the Secretary of Transportation (Secretary)

violated the Motor Vehicle Safety Act of 1966 (Safety

*Of the United States District Court for the District of

a? sitting by designation pursuant to 28 U.S.C. § 292(a)

1976).

' For a description of passive seatbelts and airbags, see text at

notes 6-8 infra.

—w— rr -

Act)* by failing to consider public reaction to passive

restraints and by ignoring potential hazards posed by

them. Petitioners in No. 78-1034, in contrast, insist that

the Secretary improperly delayed implementation of the

Standard and lacked good cause for permitting car manu-

facturers to introduce passive restraints gradually, rather

than requiring full compliance by the effective date. We

find that the Secretary acted within his statutory auth-

ority and validly issued the passive restraint order under

his rulemaking powers.

After the “first collision” between un automobile and

an external object, passenger restraint systems protect

against the “second collision’ between vehicle occupants

and the interior of the car.“ In 1967 the Secretary of

Transportation issued the original Standard 208, requir-

ing seatbelts in all passenger cars to reduce damages from

the second collision." By July 1969, however, the Depart-

* National Traffic & Motor Vehicle Safety Act of 1966, Pub.

L. No. 89-563, 80 STAT. 718.

* The Senate Report on the Safety Act emphasized the im-

portance of the second collision:

The “second collision” —the impact of the individual with-

in the vehicle against the steering wheel, dashboard,

windshield, etc.—has been largely neglected. The com-

mittee was greatly impressed by the critical distinction

between the causes of the accident itself and causes of the

resulting death or injury. * * *

S. Rep. No. 13801, 89th Cong., 2d Sess. 3 (1966). To reduce

injuries from the second collision, dashboards have been

padded and collapsible steering columns have been introduced,

*32 FED. REG. 2408, 2415 (Feb. 3, 1967). The standard

was issued under 15 U.S.C. § 1892(a) (1976):

The Secretary shall establish by order appropriate led-

eral Motor vehicle safety standards. Each such Federal

motor vehicle safety standard shall be practicable, shall

meet the need for motor vehicle safety, and shall be stated

in objective terms.

ment of Transportation (DOT) concluded that the level

of seatbelt use was far too low to reduce traffic injuries

to an acceptable level.’ Consequently, DOT sought to

develop “passive restraints” that would protect car occu-

pants automatically. Two currently available systems pro-

tect against injuries from the second collision without re-

quiring independent action by motorists. “Passive seat-

belts,” which function like shoulder beits when in posi-

tion, deploy around front seat occupants as they enter the

car and close the doors, but are largely restricted to use

in cars with bucket seats.’ Airbags are cushions stored

°34 FED. REG. 11148 (July 1, 1969) (notice of proposed

rulemaking) :

The principal disadvantage of safety belts is that only a

very low percentage of the motoring population * * *

presently takes advantage of the life-saving restraint

protection they afford.

Current use of so-called “active” belts, which require action

by the occupant to fasten them, is estimated at about 20‘.

DOT, Final Rule (Occupant Restraint Systems) (July 5,

1977) at 4, 42 Feb. ReG. 34289, 34290, Joint Appendix (JA)

156, 159 (Decision by Secretary Adams Revising Standard

208) (hereinafter cited as Adams Decision). See note 53

infra. The American public’s unwillingness to wear seatbelts

persists despite more than two million traflic deaths in this

country since the automobile was introduced. S. Rep. No. 481,

95th Cong., Ist Sess. 2-3 (1977) (quoting Senator Bentsen).

It is estimated that one American dies in a tratlic accident

every eleven minutes. /d.

* Passive belts are attached to the upper rear corner of the

door and the center of the floor of the car. When the door is

opened the belt swings toward the dashboard to permit entry

and returns to position when the door is closed. Because of

the connection to the door, passive belts are largely limited

to cars with bucket seats, and DOT estimates that passive

belts can be installed in only 259% of American cars, DOT,

Environmental Impact Statement: Occupant Crash Protec-

tion, 37, 52 (June 30, 1977), JA 980-981.

under the dashboard that, when triggered by a frontal

collision, fill with stored or rapidly generated gas to pro-

tect the rider from collision with the car’s interior.". Both

are designed to protect occupants in frontal crashes, so

riders must wear lap belts to guard against injury from

lateral-impact crashes and roll-overs.*

Beginning in May 1970 the agency conducted a lengthy

rulemaking proceeding on passenger restraint systems,

and in 1972 adopted a rule that established a three-step

approach.” Between January 1972 and August 1973 new

cars would have to be equipped with lap and shoulder

belts for front seats, with a warning to go off when the

belts were not fastened, and lap belts at other seating

positions. From August 1973 to August 1975 new cars

would have to provide at least lap and shoulder belts for

front seat occupants with an “ignition interlock” system

that would prevent the car from starting while those belts

were not connected. Finally, after August 1975 new cars

would have passive protection for all passengers. The

1972 passive restraint standard, like the rule before us

now, was a performance standard. Rather than dictate

any particular form of passive protection, the rule estab-

lished minimum criteria that cars would have to meet.

The 1972 rule foundered both in the courts and in

Congress. In December of that year the United States

Court of Appeals for the Sixth Circuit ruled that, al-

though “the Agency’s decision to require passive restraints

is supported by substantial evidence,” '’ its testing pro-

7 Adams Decision, supra note 5, at 4, JA 159.

*Td. at 48, JA 203. Secretary of Transportation, Decision

Concerning Motor Vehicle Occupant Crash Protection (Dee. 6,

1976), at 61, JA 60, 120 (hereinafter cited as Coleman De-

cision).

*37 FED. REG. 3911 (Feb. 24, 1972).

675 (6th Cir. 1972).

cedures did not satisfy the Safety Act’s requirement that

standards be “objective.” '' The court found that the

anthropomorphic dummies used in crash tests had been

insufficiently uniform and had not replicated several

characteristics of the human body.” The ignition inter-

lock system mandated by the second step of the 1972 rule

was unaffected by the Sixth Circuit’s finding,’ and

briefly increased seatbelt use."* By late 1974, however,

the nation’s irritation at being unable to start a car with-

out fastening the seatbelts drove,Congress to ban ignition

interlocks and continuous buzgérs.'® That legislation also

limited DOT’s discretion to“amend Standard 208 in the

future. If any modification®could not be satisfied by a

seatbelt system, it would have to be submitted to Con-

gress, which could veto it by concurrent resolution of both

houses. '€

11 See note 4 supra (text of 15 U.S.C. § 1392(a) (1976)).

12 472 F.2d at 676-678. The particular problems were that the necks

of the dummies could be either stiff or very flexible, and the “force

deflection characteristics of the dummy’s chest” also varied widely.

13 Ford Motor Co. v. Nat'l Highway Traffic Safety Admin., 473 F.2d

1241, 1244 (6th Cir. 1973). |

14 The highest level of seatbelt use in interlock-equipped cars was

over 60% in 1974, but consumers deactivated many of the interlocks

and seatbelt use in those cars quickly fell to 40%. C. Cookt, USAGE OF

OCCUPANT CRASH PROTECTION SysTEMs 5 ( National Highway Traffic

Safety Administration (NHTSA) July 1976), JA 441.

15 Motor Vehicle and Schoolbus Safety Amendments of 1974, Pub.

L. No. 93-492, § 109, 88 Stat. 1482 (codified at 15 U.S.C. § 1410b

(1976)). The agency dropped the interlock requirement from Stan-

dard 208. 39 Fep. ReG. 38380 (Oct. 31, 1974): id. at 42692 (Dec. 6,

1974).

1615 U.S.C. § 1410b (1976).

Despite the demise of the 1972 rule, DOT continued to

study passive restraints,’ and in 1976 then Secretary

William Coleman initiated a new rulemaking proceeding

on the issue." After hearing public testimony and re-

viewing written comments, Coleman concluded that pas-

sive restraints were technologically and economically feasi-

ble and would “provide substantially increased protection

to the public ir traffic accidents * * *.” Nevertheless,

heeause he anticipated public resistance to passive re-

straints, Coleman did not order their introduction. In-

stead, he proposed to contract with four automobile manu-

‘az‘arers for production of up to 500,000 cars with pas-

sive restraints as a demonstration program to smooth

public reception of the new safety systems.*°

The current Secretary of Transportation, Brock Adams,

reopened the passive restraint rulemaking only four

mons after Coleman’s decision.*! Following another

rourc. vi written comments and a public hearing, Adams

issved the mandatory passive restraint rule now before

use. Adams squarely rejected Coleman’s view of the

“The agency revised the test dummies in response to the

Sixth Cireuit’s Chrysler ruling, see note 12 supra. 38 FED.

REG. 8455 (April 2, 1973); id. at 20449 (Aug. 1, 1973). A

passive restraint proposal was announced in March 1974, 39

FED. REG. 10271, and extended in August 1975, 40 Feb. RE«.

33977.

'*41 FED. Ric. 24070 (June 14, 1976).

" Coleman Decision, supra note 8, at 6, JA 65.

*° Id. at 11-13, JA 70-72.

*' 42 Feb. REG. 15935 (March 24, 1977).

* Both Adams and Coleman considered the feasibility of

mandatory seatbelt laws, which are in eifect in 20 other na

tions, but concluded that such statutes could not be enacted

in this country. Coleman Decision, supra note 8, at 58-59,

JA 117-118; Adams Decision, supra note 5, at 18-15, JA

168-170.

likely public reaction to passive restraints, which had

been based largely on the ignition interlock episode.*

Adams insisted that the interlock system met with pub-

lie obloquy because it required affirmative action by the

occupant, while passive restraints, by definition, make

no such demand.** Because passive restraints would not

force changes in the publie’s behavior, Adams concluded,

there was no need to wait for a demonstration program

to convert public attitudes.

On related issues Adams agreed with Coleman that

(1) according to available experimental data and limited

field experience, passive restraints could prevent approxi-

mately 9,000 deaths and over 100,000 injuries;** (2)

with these expected benefits reflected in lower insurance

premiums, passive restraint systems would not present an

unreasonable economic burden for motorists;*° and (3)

possible negative effects, such as accidental deployment

of airbags, lower use of lap belts, and possible danger

from the gases used in airbags, would be offset by the

advantages of passive restraints.*’ The Secretary ordered

a “phasing-in” of passive restraint systems. For model

year 1982 all new cars with wheelbases above 114 inches

** Coleman Decision, supra note 8, at 11, 56, JA 70, 115.

** Adams Decision, supra note 5, at 8, JA 163.

* Id. at 53, JA 208. These estimates were derived from

experimental data. For serious injuries from frontal crashes,

for example, airbags with lap belts were considered .66 effec-

tive, meaning such injuries would decline by two thirds, while

lap belts alone had a rating of .40. NHTSA, “Explanation of

Rulemaking Action (Effectiveness) ,” 7-10 (July 26, 1977), JA

258-261 (hereinafter cited as Explanation). The effectiveness

estimates then were multiplied by the expected utilization

level of the safety device and by the injuries and fatalities

that would otherwise be anticipated.

*° Adams Decision, supra note 5, at 21-26, JA 176-181.

*? Id. at 26-34, JA 181-189.

would have to be equipped with full passive restraint

systems for front seat occupants. In the following year

cars with wheelbases between 100 and 114 inches would

have to comply, and all 1984 models would be held to the

Standard.28

Revised Standard 208 was then submitted to the Con-

gress, where no action was taken to veto it.29 The Secre-

tary rejected petitions for reconsideration from both

groups participating in these cases,3° and these appeals

followed.

Our review proceeds under both the informal rule-

making provision of the Administrative Procedure Act

(APA)31 and the substantive sections of the Motor Vehicle

Safety Act. The latter statute requires that Motor Vehicle

Safety Standards “shall be practicable, shall meet the

need for motor vehicle safety, and shall be stated in

objective terms.”22 In addition, the Secretary must “con-

28 Jd. at 41-42, JA 196-197.

29 No action was taken by the full House of Representatives.

The Consumer Subcommittee of the Senate Committee on Com-

merce, Science and Transportation held four days of hearings on

the Adams ruling, and the full committee issued a report

endorsing the new Standard 208. S. Rep. No. 481, supra note 5.

That report was adopted by the Senate. 123 Cong. Rec. 517016

(daily ed. Oct. 12, 1977).

30 42 FED. REG. 61466 (Dec. 5, 1977).

315 U.S.C. §553 (1976). Section 103(b) of the Safety Act, 15

U.S.C. § 1392(b) (1976), states that the APA “shall apply to all

orders establishing, amending, or revoking a Federal motor

vehicle safety standard * * *.” With respect to occupant crash

protection standards promulgated under the congressional re-

view procedures the Act specifically provides that “Section 553

of {the APA] shall apply to such standard|.|” 15 U.S.C.

§ 1410b(c)(2) (1976).

3215 U.S.C. § 1892(a)- (1976).

sider relevant available motor vehicle safety data” * and

determine the appropriateness of the standard for the

type of vehicle covered by it.** As applied, these stand-

ards can be tested as part of our “thorough, probing,

in-depth review” of the record on appeals of informal

rulemaking under the APA.* Of course, we may not

$815 U.S.C. § 1892(f) (1) (1976).

815 U.S.C. § 1892 (f) (3) (1976).

8° Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S.

402, 425 (1971). All parties agree that judicial review in this

case is limited to determining whether the promulgation of

the safety standards in suit is arbitrary and capricious under

5 U.S.C. §706(2) (A) (1976). It might be argued, as the

Sixth Circuit apparently did in Chrysler Corp. v. Dep’t of

Transportation, supra note 10, 472 F.2d at 668, that since

the Safety Act requires that “all of the evidence before the

agency * * * shall be included in the record” submitted to

the reviewing court, 28 U.S.C. §2112(b) (1976) (referred

to by 15 U.S.C. § 1894(a) (1) (1976)), we must apply the

“substantial evidence” standard for review of the record

underlying agency action. This position is strengthened by

the provision in the 1974 Amendments to the Safety Act that

the Secretary must hold a public hearing on any proposed

passive restraint standard, 15 U.S.C. § 1410b(c) (2) (1976).

Thus the action in this case might be seen to trigger the sub-

stantial evidence test for cases “reviewed on the record of an

agency hearing provided by statute.’”’ 5 U.S.C. § 706(2) (E)

(1976).

We do not follow this reasoning because we agree with the

emerging consensus of the Courts of Appeals that the dis-

tinction between the arbitrary and capricious standard and

substantial evidence review is largely semantic, and that “in

the review of rules of general applicability made after notice

and comment rulemaking, the two criteria do tend to con-

verge.” Associated Industries of New York State, Inc. v. Dep't

of Labor, 487 F.2d 342, 349-350 (2d Cir. 1973). See Paccar,

Inc. v. Nat’l Highway Traffic Admin., 573 F.2d 682, 636 (9th

Cir. 1978) ; American Public Gas Ass’n v. FPC, 567 F.2d 1016,

1029 (D.C. Cir. 1977). Since our review in this case, under

Overton Park, involves a complete examination of the record,

we agree with Judge Lumbard that “when an agency engages

substitute our judgment for the agency’s. Still, we must

determine that the agency action was consistent with its

statutory mandate, rational, and not arbitrary. As this

court noted in an earlier Safety Act case, a court must

decide “whether the agency has performed in accordance

with the Congressional purposes.” In that effort

[t]he paramount objective is to see whether the

agency, given an essentially legislative task to per-

form, has carried it out in a manner calculated to

negate the dangers of arbitrariness and irrationality

in the formulation of rules for general application in

the future. * * * [*)

In addition, because the order under review here reversed

a prior policy, the agency must provide “an opinion or

analysis indicating that the standard is being changed

and not ignored, and assuring that it is faithful and not

indifferent to the rule of law.” *”

Ill

Petitioners Pacific Legal Foundation et al. offer three

major reasons for overturning revised Standard 208:

(A) that experimental and real-world data do not support

the Secretary’s findings on the effectiveness of airbags;

(B) that the Secretary violated the Safety Act by failing

to consider public reaction to the revised Standard; and

in substantive rulemaking, it abuses its discretion (or acts

arbitrarily and capriciously) if its actions are not supported

by substantial evidence.” Nat’l Nutritional Foods Ass'n v.

Weinberger, 512 F.2d 688, 705 (2d Cir. 1975) (Lumbard, J.,

concurring in the result).

3% Automotive Parts & Accessories Ass'n v. Boud, 407 F.2d

330, 338 (D.C. Cir. 1968). See Weyerhauser Co. v. Costle, ——-

F.2d ——, —— (D.C. Cir. No. 76-1674, decided Sept. 5, 1978)

(slip op. at 23).

37 Columbia Broadcasting System, Inc. v. FCC, 454 F.2d

1018, 1026 (D.C. Cir. 1971) (footnote omitted).

safety posed by airbags.’

A. Effectiveness of Passive Restraints

Petitioners concede that seatbelts, including passive

belts, are an effective passenger restraint system. They

challenge, however, DOT’s conclusion that laboratory tests

and limited field experience establish the reliability of air-

bags which, given current technology and the rule before

us, would probably have to be installed in 75 percent of

American cars.** After reviewing the record in this case,

we find that the Secretary’s decision was rational.

Since this rulemaking began in 1969 DOT has con-

ducted over 2,000 crash tests of airbags, including 188

with human volunteers in the vehicles, 274 with dum-

mies,’ and a handful with cadavers and baboons.*' Fol-

lowing these experimenis, involving collisions at speeds

of up to 50 miles per hour, the agency concluded that if

airbags were installed in all cars over 9,000 fatalities and

over 100,000 injuries would be averted.** When these

figures were first released the Secretary conceded that

“[sJimulations can, of course, never duplicate * * * real-

In reviewing these claims we refer to both the ruling

issued directly by Secretary Adams and the Explanation,

supra note 25, issued by NHTSA three weeks later.

% See text and note at note 6 supra.

* About three fifths of the tests with dummies (156) took

place after the Sixth Circuit’s Chrysler ruling, see text and

notes at notes 12 & 17 supra, with dummies modified to mect

that court’s objcctions. Structures Research Division, “Re-

traint System Testing” (Sept. 23, 1977), JA 1185-1152.

ek.

“ See Coleman Decision, supra note 8, at 40, JA 99; Adums

Decision, supra note 5, at 53, JA 208.

Bor.

world collisions and thus there is greater uncertainty in

the accuracy of the estimates * * *.”’“ Nevertheless,

carefully conducted tests can provide the basis for a

standard under the Safety Act. As the Sixth Circuit

acknowledged in Chrysler, the statute authorizes safety

standards that push the automobile industry beyond pres-

ent engineering capabilities,“ and such standards could

not be developed without heavy reliance on experimental

simulations, A necessary corollary to this position is that

DOT must monitor closely the road experience with any

standard based on experimental data and make needed

modifications. *°

Petitioners also insist that the Secretary’s conclusion on

airbag effectiveness is contradicted by experience with the

12,000 airbag cars currently in operation in this coun-

try.“ Indeed, there have been more fatalities in frontal

*3 Coleman Decision, supra note 8, at 39, JA 98.

** Chrysler Corp. v. Dep’t of Transportation, supra note 10,

472 F.2d at 672-673.

In summary, the Agency is empowered to issue safety

standards which require improvements in existing tech-

nology or which require the development of new tech-

nology, and it is not limited to issuing standards based

solely on devices already fully developed. * * *

Id. at 673.

** DOT has expressed it intention to conduct an “intensive

monitoring program to oversee the implementation plans

* * *” Adams Decision, supra note 5, at 41, JA 196. The

agency’s failure to respond to negative field results was part

of the basis for the Ninth Circuit’s recent finding that a truck

brake standard was not “practicable.” Paccar, Inc. v. NHTSA,

supra note 35.

“The American airbag “fleet”? consists of 10,281 cars pro-

duced on assembly lines, primarily large General Motors cars.

The others are “special manufacturers’ test vehicles” used

only in government and business fleets. DOT, “An Analysis of

Fatalities in Cars Equipped with Air Bags” (Oct. 3, 1978) at

1 (hereinafter cited as Fatalities).

accidents involving airbag cars than the statistical pro-

jections from experimental data would have indicated.”

Nevertheless, in view of the relatively small sample in-

volved,** and the extraordinary nature of several of the

accidents,** this variation does not undermine the agency’s

conclusion that airbags are effective. Moreover, airbags

have been very effective in reducing or preventing major

injuries.”

‘’ Five deaths have occurred in airbag cars in frontal

crashes. By the agency’s estimates of airbag effectiveness, no

more than one fatality would have been expected. DOT Of-

fice of Statistics and Analysis, “Statistical Analysis of Air

Bag Deaths” at 5-6 (April 9, 1976). These figures may not

undermine the agency’s estimates of airbag effectiveness, how-

ever. See note 49 infra.

**The data are drawn from over 200 crashes. Fatalities,

supra note 46, at 1. A leading study of seatbelt effectiveness,

in contrast, analyzed over 15,000 towaways. NHTSA, “A

Statistical Analysis of Seat Belt Effectiveness in 1973-1975

Model Cars Involved in Towaway Crashes’ 63 (Sept. 1976),

JA 477. With a small sample, statistical projections of prob-

abilities are less reliable. See R. BEALS, STATISTICS FOR ECON-

OMISTS 161, 187 (1972).

**In one an infant lying unrestrained on the front seat of

the car was killed; another involved a head-on crash between

two cars with a combined speed exceeding 100 miles per hour;

the driver’s side of the car was crushed by a tractor-trailer in

a third fatal crash. Fatalities, supra note 46, at 1. It is doubt-

ful that any passenger restraint system could have prevented

those deaths.

“°° The Secretary estimated that for the airbug fleet between

1973 and 1975, 60 injuries would have been expected in frontal

crashes if the airbags did not deploy. Only 29 injuries were

reported, “indicating an effectiveness factor of 0.52.” Adams

Decision, supra note 5, at 19, JA 174. The study attempted to

account for possible bias resulting from the makeup of the

airbag fleet (large, new cars) and from incomplete reporting

of accidents. Jd. at 18-19, JA 173-174.

The Secretary also reviewed several submissions by com-

menters to the rulemaking proceedings that presented con-

B. Public Reaction

Petitioners assert that the Secretary violated his statu-

tory mandate by refusing to consider public reaction to

his decision. The importance of popular response, they

contend, can be seen in the Safety Act’s requirements that

a safety standard be “practicable.” *' The Secretary

stated in his order, however, that “public acceptance or

rejection of passive restraints is not one of the statutory

criteria which the Department is charged by law to ap-

ply in establishing standards.” * Although we agree with

petitioners’ view of the requirements of the Safety Act,

we believe that the Secretary did take public reaction into

account and satisfactorily explained his conclusion that

widespread public resistance to passive restraints is un-

likely.

Much as economic analysis must evaluate both supply

and demand conditions, motor vehicle safety standards

cannot be considered practicable unless we know both that

the needed production capability is within reach and that

motorists will avail themselves of the safety system. In-

deed, the protracted effort to install passive restraints has

been dictated by the public’s steadfast refusal to use seat-

beits voluntarily.** We believe that the agency cannot

flicting estimates of airbag effectiveness based on both empiri-

cal and field data. Jd. at 16-18, JA 171-173. After criticizing

the methodologies used in the submissions, he reasonably con-

cluded that the variance of predictions reflected the inherent

uncertainty of such projections, but that, since some estimates

were higher than the agency’s and some were lower, there was

no cause for rejecting DOT’s projections.

°° 15 U.S.C. § 1892(a) (1976).

‘2 Adams Decision, supra note 5, at 8, JA 163.

‘8 Although combined lap and shoulder belts offer protection

roughly equivalent to passive restraints, see Ewplanation,

supra note 25, at 11, JA 262, voluntary usage is currently es-

timated at 16% for combined lap/shoulder belts, with an ad-

fulfill its statutory responsibility unless it considers popu-

lar reaction. Without public cooperation there can be no

assurance that a safety system can “meet the need for

motor vehicle safety.” ** And it would be difficult to term

“practicable” a system, like the ignition interlock, that

so annoyed motorists that they deactivated it.

Despite the Secretary’s claim that he need not consider

the response to the new standard, he adequately justified

his action in terms of the anticipated public reaction. As

noted earlier, Adams distinguished the ignition interlock

affair from passive restraints on the basis of the nature

of the intrusion on the individual. Passive restraints do

not require independent action by passengers to activate

them. In the 1976 decision Secretary Coleman char-

acterized his estimate of public resistance as “a matter

of judgment.” ** In our view Secretary Adams provided

a sufficient explanation why his judgment differed from

his predecessor’s.*’ And on several other issues, including

airbag cost ** and maintenance,’ Adams explicitly dis-

cussed the relationship between the revised Standard and

public attitudes.

Petitioners raise two related points. First, they argue

that the Secretary’s calculations of expected benefits from

ditional 4% wearing only lap belts. C. CooKE, supra note 14,

at 4,11, JA 440, 447. See Chrysler Corp. v. Dep’t of Trans-

portation, supra note 10, 472 F.2d at 674.

*15 U.S.C. § 13892(a) (1976).

ts Passive belts, of course, do involve somewhat more of an

intrusion than do airbags, which are tucked away in the dash-

board. Still, the observed use rate for passive belts is quite

high. See text and note at note 60 infra.

°° Coleman Decision, supra note 8, at 6, JA 65.

*? See text at notes 23-24 supra.

** Adams Decision, supra note 5, at 21-26, JA 176-181.

** Id. at 31-32, JA 186-187.

passive restraints fail to take into account the possible

deactivation of systems by individual motorists, as was

common with the ignition interlock. If Secretary Adams

correctly anticipates minimal popular resistance to pas-

sive restraints, petitioners’ argument has no force. In

addition, experience with approximately 65,000 cars

equipped with passive seatbelts, which are admittedly

more intrusive than airbags, indicates a low deactivation

rate.” We see no basis here for disturbing the DOT rule,

especially since the agency’s injury-reduction estimates

were revised downward by projecting less-than-total com-

pliance with Standard 208."

Second, petitioners contend that installation of passive

restraints may deter use of lap belts, noting that even if

passive restraints are in place lap belts are needed to

protect motorists in nonfrontal collisions. A drop in lap

belt use would result in higher fatalities and injuries.

DOT defends its estimate that lap belt use will continue

at the 20 percent level, citing an agency study concluding

that with no further need for more intrusive shoulder

belts, lap belt use would actually increase to 26 percent.”

6° Approximately 80% of the passive belts were in use. E.r-

planation, supra note 25, at 15, JA 266.

*' The agency projected passive belt usage of 60% and air-

bag usage of 98%. Coleman Decision, supra note 8, at A-7,

JA 132.

62 ©, COOKE, supra note 14, at 11, JA 447. In addition, the

agency argues in its brief that if lap belt use droped to zero

there would still be a net reduction in deaths and injuries from

accidents. This claim derives from calculating the expected

injury level with airbags but not lap belts, and adding those

injuries that are currently prevented by use of iap belts alone.

The total, the agency contends, is less than the present injury

level.

Petitioners point to nothing in the record to refute the

agency’s estimates.™

C. Collateral Dangers

Airbags may also present collateral dangers to the pub-

lic, petitioners argue, which are not justified by the ex-

pected benefits from Standard 208. We note at the outset

that the Safety Act charges the Secretary with authority

to balance present injuries against possible risks posed by

safety equipment. As this court has observed:

The [agency] must of necessity consider many vari-

ables, and make “trade-offs” between various de-

siderata in deciding upon a particular standard for

auto safety. * * * (*1

The major danger associated with airbags is inadvert-

ent deployment that might cause the driver to lose control

of the car. There is evidence, however, that such de-

ployments do not present a substantial hazard. In road

experience three such incidents have occurred, and none

os Petitioners have submitted to this court several DOT pub-

lications on airbags that suggest that occupants will no longer

need to wear lap belts. See DOT, “Passive Vehicle Occupant

Restraints” at 1 (1977), JA 1128 (passive restraints “are

systems that protect automobile occupants from collision in-

juries automatically, without the need to fasten belts or to

take any other action”). Such statements may be misleading

and official statements on passive restraints must emphasize

the continuing need to use lap belts.

* Automotive Parts & Accessories Ass’

note 36, 407 F.2d at 342. ee

* Several anticipated hazards, such as possible hearing loss

from the noise of the bags inflating or damage resulting from

the impact with eyeglasses or smoking materials, have proved

re in testing. Adams Decision, supra note 5, at 31,

caused a collision or injury," while tests with human

volunteers have shown little loss of control by drivers.”

Moreover, the agency is optimistic that the causes of the

three inadvertent deployments are understood and can be

remedied,” so there is some prospect of reducing their

likelihood in the future. Even without such improvements,

DOT gauges at one in 200 the chance that in a life-

time an individual would experience an inadvertent de-

ployment as an occupant of a car.”

Rapidly inflating airbags also may injure out-of-posi-

tion passengers in the front seat, especially children. New

methods of gas generation, however, permit an initially

slower inflation, with the aim of more gently moving the

occupant back from the dashboard and out of harm’s

way.”

Finally, the chemical used to generate the gas, usually

sodium azide, may present a danger in its own right,

either during the car’s lifetime or upon its demolition for

scrap. But placement of the carefully sealed chemical

cannister behind the dashboard should be sufficiently re-

mote to prevent most accidents with it, and the cannister

% Explanation (Inadvertent Activation), supra note 25, at

2, JA 269.

st Id. The test used male and female drivers between the

ages of 18 and 72. The major flaw of the test is that the

drivers were told something unexpected would happen while

they were in the car, so their alertness was probably higher

than normal. Nevertheless, the tests demonstrate that the

force of airbag inflation can be weathered by many drivers.

6s Adams Decision, supra ncte 5, at 29-30, JA 184-185.

69 Td.

7™ One out-of-position passenger—an infant—died in an air-

bag car in a frontal crash, but that death probably could not

have been prevented by any passenger restraint system. Sce

note 49 supra.

could be removed prior to shredding of the car, as is

currently done with batteries and gas tanks.”

In view of these circumstances, we cannot conclude that

the Secretary abused his discretion in assessing the trade-

offs between the expected benefits and the potential

dangers of airbags.” ;

Petitioners Nader et al. present two major challenges

to the delayed implementation of Standard 208: (A) the

Safety Act does not authorize either the delay until the

1982 imodel year or the ensuing phase-in program on the

basis of wheelbase size; and (B) the delay and phase-in

were improperly adopted to avoid congressional rejection

of the standard under the arguably unconstitutional one-

house veto provision of the 1974 Amendments to the

Safety Act.

A. Delay and Phase-In

Petitioners argue first that the Secretary did not satis-

fy the Safety Act’s requirement that he demonstrate

" Adams Decision, supra note 5, at 46, JA 201.

” Petitioners also assert that the passive restraint rule vio-

lates the individual’s right to privacy. We find no basis for

this contention. Passive restraints protect not only the owner

or driver of the car, but also any passengers, and thus involve

more than a purely individual concern. Also, by their very na-

ture passive restraints involve no intrusion on an intimate

area of activity, as in cases concerning the family or pro-

creation decisions where courts have defended privacy in-

terests. See, e.g., Roe v. Wade, 410 U.S. 118 (1978). Revised

Standard 208 is a reasonable exercise of the Government’s

authority to guard our citizen’s health and safety. See Simon

v. Sargent, 346 F.Supp. 277 (D. Mass.) (three-judge court),

aff'd, 409 U.S. 1020 (1972) (upholding state mandatory helmet

law for motorcyclists); Love v. Bell, 465 P.2d 118 (Colo.

1970) (same); Bisenius v. Karns, 42 Wis.2d 42, 165 N.W.2d

377, appeal dismissed for lack of substantial federal question

395 U.S. 709 (1969) (same).

“good cause” for not implementing the new safety stand-

ard within one year of issuance. They contend that

“mere” economic hardship cannot constitute such cause

when the statute’s central goal—greater vehicle safety—

is at stake. In his decision the Secretary explained the

delay until model year 1982 as an attempt to assure “or-

derly implementation” of the new standard.‘ The four-

year lead-in period, according to the Secretary, grants

car and airbag manufacturers breathing room to gear up

production.” Moreover, by encouraging voluntary pro-

duction of cars with passive restraints before the 1982

models the Secretary hopes to increase the public’s famil-

iarity with the systems and facilitate their eventual

acceptance.”°

We cannot agree with petitioners on this point. Al-

though the time limit placed on implementation of new

safety standards reflects Congress’ conviction that safety

must be a high national priority, Congress also provided

the ‘‘good cause” exception along with the general require-

ment of practicability. When dealing with a “technology-

forcing” rule like Standard 208, the agency must con-

79 15 U.S.C. § 1892(c) (1976). The law provides that safety

standards shall take effect

not * * * sooner than one hundred and eighty days or later

than one year from the date such order is issued, unless

the Secretary finds, for good cause shown, that an earlier

or later effective date is in the public interest, and pub-

‘lishes his reasons for such finding.

Id. (emphasis added).

7 Adams Decision, supra note 5, at 40, JA 195.

™ Current production of sodium azide, the primary gas for

inflating airbags, will have to be increased approximately

tenfold to equip the annual output of cars in this country. /d.

at 88, JA 193. Significant engineering and design problems

arise with airbags as well, especially in small cars. See text at

note 78 infra.

7° Adams Decision, supra note 5, at 40-41, JA 195-196.

sider the abilities of producers to comply with the new

requirement and of the public to grasp the need for the

change. On this record, these concerns were good cause

for the delay in implementation. |

Petitioners also insist that the Secretary lacked statu-

tory authority to schedule introduction of airbags accord-

ing to the size of a car’s wheelbase. We find no basis for

this protest in the statute. Section 103(f)(3) of the

Safety Act provides that the Secretary shall

consider whether any such proposed standard is rea-

sonable, practicable and appropriate for the par-

ticular type of motor vehicle or item of motor

vehicle equipment for which it is prescribed[.] (7!

Petitioners, relying on “common sense,” interpret “type”

as referring to distinctions between vehicle functions,

such as passenger cars and trucks, not vehicle size. We

view the term as including both distinctions, in the effort

to provide the Secretary with sufficient flexibility to tailor

safety standards to engineering realities. In this instance

it will be far easier to install airbags in larger cars than

smaller, simply because there is more room for the sys-

tem in the larger cars." The Secretary reasonably de-

cided on a phase-in because of the difficulty of providing

airbags in smaller cars and the likely usefulness to that

endeavor of experience with larger cars.”

715 U.S.C. § 1392(f) (3) (1976) (emphasis added).

** The introduction of airbags in small cars will require re-

designing of the instrument panel, glove compartment, and air

conditioning system, and possibly even of the wheelbase and

engine compartment. Adams Decision, supra note 5, at 36,

JA 191.

** Petitioners emphasize that small cars provide the least

crash protection to occupants and, accordingly, present the

yvreatest need for passive restraints. Thus they argue that

the implementation timetable is unfair because it leaves small

car riders without passive restraints longer. Although we

share petitioners’ concern for small car riders, there is a

rational basis for the Secretary’s schedule, so we have no

basis for upsetting his decision on this point.

B. Legislative Veto

Petitioners allege that Standard 208 should not stand

because the prospect of the one-house veto established by

the 1974 amendments distorted the Secretary’s decision

on the implementation schedule. As we have disc:issed,

substantial basis exists in the record for the Secretary’s

timetable for passive restraints. Petitioners’ assertion is

supported only by an arguable inference from one event

in the record.” In the absence of concrete evidence, we

must accept the substantial reasons offered by tne Secre-

tary for his decision."

Petitioners also claim that revised Standard 208 was

not covered by the legislative veto provision because a

“belt system” can satisfy its requirements.** Thus they

argue that Standard 208 should not have been submitted

to Congress at all. We decline to reach this statutory

interpretation question. Even if we assume that the

Secretary was not compelled to send the standard to

Congress, we can discern no consequences of his action

that would constitute cause to vacate the standard.

Finally, petitioners challenge the constitutionality of

the legislative veto provision. Following this covrt’s de-

cision in Clark v. Valeo,“ we will not review this con-

Petitioners cite only the Secretary’s failure to follow the

recommendation of NHTSA for full implementation by Sep-

tember 1, 1980. That the Secretary did not adopt that sug-

gestion is scarcely ground for inferring that “‘pol‘tical reali-

ties,” rather than technological concerns, dictate] ):is action.

*1 See Camp v. Pitts, 411 U.S. 138, 143 (1973); Nat’l

Courier Ass’n v. Board of Governors of FRS, 516 F.2d 1229,

1242 (D.C. Cir. 1975) (“Unless he has left no other record

of the reasons for his decision, the mental processes of an

administrator may not be probed.”).

@ See 15 U.S.C. § 1410b(3) (A) (1976).

*8 559 F.2d 642, 649 (D.C. Cir.) (en bane) (per curiam),

aff'd, 431 U.S. 950 (1977).

tention in a case where Congress has not exercised the

veto and where there has been no showing of direct con-

gressional influence over the rulemaking process. In such

circumstances there is serious question whether a “case

or controversy,” as required by Article III of the Con-

stitution, is presented.

Accordingly, the Secretary’s order is

Affirmed.

APPENDIX B

AMnited States Cowt of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 77-1797

September Term, 1978

PACIFIC LEGAL FOUNDATION et al.,

Petitioners

DEPARTMENT OF TRANSPORTATION,

Respondent

78-1034

RALPH NADER AND PUBLIC CITIZEN,

Petitioners

Brock ADAMS, SECRETARY OF TRANSPORTATION,

Respondent

FORD MOTOR COMPANY,

Intervenor

PETITIONS FOR REVIEW OF AN ORDER OF THE

DEPARTMENT OF TRANSPORTATION

BEFORE: WRIGHT, Chief Judge, WILKEY, Circuit

Judge and FLANNERY*, United States

District Court Judge for the District of

Columbia

JUDGMENT

These causes came on to be heard on petitions for

review of an order of the Department of Transportation

and were argued by counsel. On consideration of the

foregoing, it is

ORDERED AND ADJUDGED by this Court, that the

order of the Department of Transportation under review

herein is hereby affirmed, in accordance with the opinion

of this Court filed herein this date.

Per Curiam

For the Court:

GEORGE A. FISHER

Clerk

Date: February 1, 1979

Opinion for the Court filed by Chief Judge Wright.

* Sitting by designation pursuant to 28 ULS.C. § 292(a).

APPENDIX C

Relevant Provisions of the Administrative Procedure Act

5 U.S.C. § 553

§ 553. Rule making

(a) This section applies, according to the provisions °

thereof, except to the extent that there is involved—

(1) a military or foreign affairs function of the

United States; or

(2) a matter relating to agency management or

personnel or to public property, loans, grants, bene-

fits, or contracts.

(b) General notice of proposed rule making shall be

published in the Federal Register, unless persons subject

thereto are named and either personally served or other-

wise have .actual notice thereof in accordance with law.

The notice shall include—

(1) a statement of the time, place, and nature of

public rule making proceedings;

(2) reference to the legal authority under which

the rule is proposed; and

(3) either the terms or substance of the proposed

rule or a description of the subjects and issues in-

volved.

Except when notice or hearing is required by statute, this

subsection does not apply—

(A) to interpretative rules, general statements of

policy, or rules of agency organization, procedure, or

practice; or

(B) when the agency for good cause finds (and

incorporates the finding and a brief statement of

reasons therefor in the rules issued) that notice and

public procedure thereon are impracticable, unneces-.

sary, or contrary to the public interest.

shall give interested persons an opportunity to participate

in the rule making through submission of written data,

views, or arguments with or without opportunity for oral

presentation. After consideration of the relevant matter

presented, the age» shall incorporate in the rules

adopted a concise «ral statement of their basis and

purpose. Whenrw «fe required by statute to be made on

the record after oppe* unity for an agency hearing, sec-

tions 556 and 557 of this title apply instead of this

subsection.

(d) The required publication or service of a substan-

tive rule shall be made not less than 30 days before its

effective date, except—

(1) a substantive rule which grants or recognizes

an exemption or relieves a restriction;

(2) interpretative rules and statements of policy;

(3) as otherwise provided by the agency for good

cause found and published with the rule.

(e) Each agency shall give an interested person the

right to petition for the issuance, amendment, or repeal of

a rule. Pub.L. 89-554, Sept. 6, 1966, 80 Stat. 383.

5 U.S.C. § 706

§ 706. Scope of review

To the extent necessary to decision and wher

presented, the reviewing court shall decide all relevant

questions of law, interpret constitutional and statutory

provisions, and determine the meaning or applicability of

the terms of an agency action. The reviewing court

shall—

(1) compel agency action unlawfully withheld or

unreasonably delayed; and

(2) hold unlawful and set aside agency action,

findings, and conclusions found to be—

(A) arbitrary, capricious, an abuse of dis-

cretion, or otherwise not in accordance with law;

(B) contrary to constitutional right, power,

privilege, or immunity;

thority, or limitations, or short of statutory right;

(D) without observance of procedure re-

quired by law;

(E) unsupported by substantial evidence in a

case subject to sections 556 and 557 of this title or

otherwise reviewed on the record of an agency

hearing provided by statute; or

(F) unwarranted by the facts to the extent

that the facts are subject to trial de novo by the

reviewing court.

In making the foregoing determinations, the court shall

review the whole record or those parts of it cited by a

party, and due account shall be taken of the rule of

prejudicial error. Pub.L. 89-554, Sept. 6, 1966, 80 Stat. 393.

APPENDIX D

Relevant Provisions of the National Traffic

and Moter Vehicle Safety Act of 1966, as Amended

15 U.S.C. §§ 1381, et seq.

§ 1381. Congressional declaration of purpose

Congress hereby declares that the purpose of this

chapter is to reduce traffic accidents and deaths and

injuries to persons resulting from traffic accidents. There-

fore, Congress determines that it is necessary to establish

. motor vehicle safety standards for motor vehicles and

equipment in interstate commerce; to undertake and

support necessary safety research and development; and

to expand the national driver register.

§ 1391. Definitions

As used in this subchapter—

(1) “Motor vehicle safety” means the performance of

motor vehicles or motor vehicle equipment in such a

manner that the public is protected against unreasonable

risk of accidents occurring as a result of the design,

construction or performance of motor vehicles and is also

protected against unreasonable risk of death or injury to

persons in the event accidents do occur, and includes

nonoperational safety of such vehicles.

(2) “Motor vehicle safety standards” means a mini-

mum standard for motor vehicle performance, or motor

vehicle equipment performance, which is practicable,

which meets the need for motor vehicle safety and which

provides objective criteria.

(8) “Motor vehicle’ means any vehicle driven or

drawn by mechanical power manufactured primarily for

use on the public streets, roads, and highways, except any

vehicle operated exclusively on a rail or rails.

* * * +”

§ 1392. Motor vehicle safety standards—Establishment

(a) The Secretary shall establish by order appropriate

Federal motor vehicle safety standards. Each such Feder-

al motor vehicle safety standard shall be practicable, shall

meet the need for motor vehicle safety, and shall be stated

in objective terms.

Applicability of Administrative Procedure Act

(b) The Administrative Procedure Act shall apply to

all orders establishing, amending, or revoking a Federal

motor vehicle safety standard under this subchapter.

Effective date of orders

safety standard shall specify the date such standard is to

take effect which shall not be sooner than one hundred and

eighty days or later than one year from the date such

order is issued, unless the Secretary finds, for good cause

shown, that an earlier or later effective date is in the

public interest, and publishes his reasons for such finding.

* * * *

Amendment and revocation of standards

(e) The Secretary may by order amend or revoke any

Federai motor vehicle safety standard established under

this section. Such order shall specify the date on which

such amendment or revocation is to take effect which shall

not be sooner than one hundred and eighty days or later

than one year from the date the order is issued, unless the

Secretary finds, for good cause shown, than an earlier or

later effective date is in the public interest, and publishes

his reasons for such finding.

Factors to be considered in prescribing standards

(f) In prescribing standards under this section, the

Secretary shall—

(1) eonsider relevant available motor vehicle

safety data, including the results of research, devel-

opment, testing and evaluation activities conducted

pursuant to this chapter;

(2) consult with the Vehicle Equipment Safety

Commission, and such other State or interstate

agencies (including legislative committees) as he

deems appropriate;

(3) consider whether any such proposed standard

is reasonable, practicable and appropriate for the

particular type of motor vehicle or item of motor

vehicle equipment for which it is prescribed; and

(4) consider the extent to which such standards

will contribute to carrying out the purposes of this

chapter.

* * * *

§ 1394. Judicial review of orders establishing standards;

additional evidence before Secretary; certified copy

of transcript

(a)(1) In a ease of actual controversy as to the

validity of any order under section 1392 of this title, any

person who will be adversely affected by such order when

it is effective may at any time prior to the sixtieth day

after such order is issued file a petition with the United

States court of appeals for the circuit wherein such person

resides or has his principal place of business, for a judicial

review of such order. A copy of the petition shall be

forthwith transmitted by the clerk of the court to the

Secretary or other officer designated by him for that

purpose. The Secretary thereupon shall file in the court

the record of the proceedings on which the Secretary

based his order, as provided in section 2112 of Title 28.

(2) If the petitioner applies to the court for leave to

adduce additional evidence, and shows to the satisfaction

of the court that such additional evidence is material and

that there were reasonable grounds for the failure to

adduce such evidence in the proceeding before the Secre-

tary, the court may order such additional evidence (and

evidence in rebuttal thereof) to be taken before the

Secretary, and to be adduced upon the hearing, in such

manner and upon such terms and conditions as to the

court may seem proper. The Secretary may modify his

findings as to the facts, or make new findings, by reason of

the additional evidence so taken, and he shall file such

modified or new findings, and his recommendation, if any,

for the modification or setting aside of his original order

with the return of such additional evidence.

(3) Upon the filing of the petition referred to in

paragraph (1) of this subsection, the court shall have

jurisdiction to review the order in accordance with section

1009 of Title 5 and to grant appropriate relief as provided

in such section.

(4) The judgment of the court affirming or setting

aside, in whole or in part, any such order of the Secretary

shall be final, subject to review by the Supreme Court of

the United States upon certiorari or certification as pro-

vided in section 1254 of Title 28.

(5) Any action instituted under this subsection shall

survive, notwithstanding any change in the person

occupying the office of Secretary of! any vacancy in such

office.

(6) The remedies provided for in this subsection shall

_ be in addition to and not in substitution for any other

remedies provided by law.

(b) A certified copy of the transcript of the record

and proceedings under this section shall be furnished by

1 So in original.

the Secretary to any interested party at his request, and

payment of the costs thereof, and shall be admissible in

any criminal, exclusion of imports, or other proceeding

arising under or in respect of this subchapter, irrespective

of whether proceedings with respect to the order have

previously been initiated or become final under subsection

(a) of this section.

* * * *

§1410b. Occupant restraint systems—Amendment of

Federal motor vehicle safety standard numbered 208;

effective date

(a) Not later than 60 days after October 27, 1974, the

Secretary shall amend the Federal motor vehicle safety

standard numbered 208 (49 CFR 571.208), so as to bring

such standard into conformity with the requirements of

paragraphs (1), (2), and (3) of subsection (b) of this

section. Such amendment shall take effect not later than

120 days after October 27, 1974.

Federal motor vehicle safety standard requirements

(b) After the effective date of the amendment pre-

scribed under subsection (a) of this section:

(1) No Federal motor vehicle safety standard

may—

(A) have the effect of requiring, or

(B) provide that a manufacturer is per-

mitted to comply with such standard by means of,

any continuous buzzer designed to indicate that

safety belts are not in use, or any safety belt interlock

system.

(2) Except as otherwise provided in paragraph

(3), no Federal motor vehicle safety standard re-

specting occupant restraint systems may—

(A) have the effect of requiring, or

(B) provide that a manufacturer is per-

mitted to comply with such standard by means of,

an occupant restraint system other than a belt sys-

tem.

(3)(A) Paragraph (2) shall not apply to a Feder-

al motor vehicle safety standard which provides that a

manufacturer is permitted to comply with such stan-

dard by equipping motor vehicles manufactured by

him with either—

(i) a belt system, or

(ii) any other occupant restraint system

specified in such standard.

(B) Paragraph (2) shall not apply to any Federal

motor vehicle safety standard which the Secretary

elects to promulgate in accordance with the procedure

specified in subsection (c) of this section, unless it is

disapproved by both Houses of Congress by con-

current resolution in accordance with subsection (d)

of this section.

motor vehicle safety standard if at the time of

promulgation of such standard (i) the 60-day period

determined under subsection (d) of this section has

expired with respect to any previously promulgated

standard which the Secretary has elected to promul-

gate in accordance with subsection (c) of this section,

and (ii) both Houses of Congress have not by con-

current resolution within such period disapproved

such previously promulgated standard.

Federal motor vehicle safety standard promulgation proce -

dure; rule making requirement; data, views or argu-

ments: presentation opportunity; transcript; notifica-

tion of Congressional Committees; data, views, or

arguments of Members of Congress; transmittal of

standard to Congress and Congressional Committees

and (C) of this section in accordance with which the

Secretary may elect to promulgate a standard is as fol-

lows:

(1) The standard shall be promulgated in accord-

ance with section 1392 of this title, subject to the

other provisions of this subsection.

(2) Section 553 of Title 5 shall apply to such

standard; except that the Secretary shall afford inter-

ested persons an opportunity for oral as well as

written presentation of data, views, or arguments. A

transcript shall be kept of any oral presentation.

(3) The chairmen and ranking minority members

of the House Interstate and Foreign Commerce Com-

mittee and the Senate Commerce Committee shall be

notified in writing of any proposed standard to which

this section applies. Any Member of Congress may

make an oral presentation of data, views, or argu-

ments under paragraph (2).

(4) Any standard promulgated pursuant to this

subsection shall be transmitted to both Houses of

Congress, on the same day and to each House while it

is in session. In addition, such standard shall be

transmitted to the chairmen and ranking minority

members of the committees referred to in paragraph

(3).

Concurrent resolution of disapproval during prescribed

period; Federal motor vehicle safety standard

effective upon expiration of such period

(d)(1) A standard which the Secretary has elected to

promulgate in accordance with subsection (c) of this

section shall not be effective if, during the first period of

60 calendar days of continuous session of Congress after

the date of transmittal to Congress, both Houses of

Congress pass a concurrent resolution the matter after the

resolving clause of which reads as follows: “The Congress

disapproves the Federal motor vehicle safety standard

transmitted to Congress on ss Ce

blank space being filled with date of transmittal of the

standard to Congress). If botn Houses do not pass such a

resolution during such period, such standard shall not be

effective until the expiration of such period (unless the

standard specifies a later date).

(2) For purposes of this section—

(A) continuity of session of Congress is broken

only by an adjournment sine die; and

(B) the days on which either House is not in

session because of an adjournment of more than 3

days to a day certain are excluded in the computation

of the 60-day period.

- Judicial review of Federal motor vehicle safety standard

(e) This section shall not impair any right which any

person may have to obtain judicial review of a Federal

motor vehicle safety standard.

Definitions

(f) For purposes of this section:

(1) The term “safety belt interlock’’ means any

system designed to prevent starting or operation of a

motor vehicle if one or more occupants of such vehicle

are not using safety belts.

(2) The term “belt system” means an occupant

restraint system consisting of integrated lap and

shoulder belts for front outboard occupants and lap

belts for other occupants. With respect to (A) motor

vehicles other than passenger vehicles, (B) convert-

ibles, and (C) open-body type vehicles, such term also

includes an occupant restraint system consisting of

lap belts or lap belts combined with detachable shoul-

der belts.

(3) The term “occupant restraint system” means

a system the principal purpose of which is to assure

that occupants of a motor vehicle remain in their seats

in the event of a collision or rollover. Such term does

not include a warning device designed to indicate

that seat belts are not in use.

(4) The term “continuous buzzer” means a buzzer

other than a buzzer which operates only during the 8

second period after the ignition is turned to the

“start” or “on” position.

* x x x

APPENDIX E

49 C.F.R. § 571.208 (1977)

§ 571.208 Standard No. 208; Occupant crash protection.

Sl. Scope. This standard specifies performance

requirements for the protection of vehicle occupants in

crashes.

S2. Purpose. The purpose of this standard is to reduce

the number of deaths of vehicle occupants, and the sev-

erity of injuries, by specifying vehicle crashworthiness

requirements in terms of forces and accelerations mea-

sured on anthropomorphic dummies in test crashes, and by

specifying equipment requirements for active and passive

restraint systems.

S3. Application. This standard applies to passenger

cars, multipurpose passenger vehicles, trucks, and buses.

In addition, S9, Pressure vessels and explosive devices,

applies to vessels designed to contain a pressurized fluid or

gas, and to explosive devices, for use in the above types of

motor vehicles as part of a system designed to provide

protection to occupants in the event of a crash.

S4. General requirements.

$4.1 Passenger cars.

* * * *

$4.1.2 Passenger cars manufactured from September 1,

1973, to August 31, 1983. Each passenger car manufactured

from September 1, 1973 to August 31, 1981, inclusive, shall

meet the requirements of S4.1.2.1, $4.1.2.2, or 54.1.2.3.

Each passenger car manufactured from September 1,

1981, to August 31, 1982, inclusive, shall meet the require-

ments of $4.1.2.1, $4.1.2.2, or $4.1.2.3, except that a pas-

senger car with a wheelbase of more than 114 inches shall

meet the requirements specified in $4.1.3. Each passenger

car manufactured from September 1, 1982, to August 31,

1983, inclusive, shall meet the requirements of S4.1.2.1,

54.1.2.2, or $4.1.2.3, except that a passenger car with a

wheelbase of more than 100 inches shall meet the require-

ments specified in $4.1.3. A protection system that meets

the requirements of S84.1.2.1 or S4.1.2.2 may be installed at

one or more designated seating positions of a vehicle that

otherwise meets the requirements of $4.1.2.3.

$4.1.2.1 First option—Complete passive protection sys-

tem. The vehicle shall:

(a) At each front designated seating position meet

the frontal crash protection requirements of S5.1 by

means that require no action by vehicle occupants;

(b) At each rear designated seating position have a

Type 1 or Type 2 seat belt assembly that conforms to

Standard No. 209 and to S7.1 and S7.2; and

requirements of S5.2 and the rollover crash protection

requirements of S5.3 by means that require no action by

vehicle occupants; or

(2) At each front designated seating position have a

Type 1 or Type 2 seat belt assembly that conforms to

Standard No. 209 and to $7.1 through S7.3, and that meets

the requirements of S5.1 with front test dummies as

required by S5.1, restrained by the Type 1 or Type 2 seat

belt assembly (or the pelvic portion of any Type 2 seat belt

assembly which has a detachable upper torso belt) in

addition to the means that require no action by the vehicle

occupant.

54.1.2.2 Second option—head-on passive protection sys-

tem. The vehicle shall—

(a) At each designated seating position have a Type 1

seat belt assembly or a Type 2 seat belt assembly with a

detachable upper torso portion that conforms to S7.1 and

$7.2 of this standard.

(b) At each front designated seating position, meet

the frontal crash protection requirements of $5.1, in a

perpendicular impact, by means that require no action by

vehicle occupants;

the frontal crash protection requirements of S5.1, in a

perpendicular impact, with a test device restrained by a

Type 1 seatbelt assembly; and

(d) At each front outboard designated seating posi-

tion, have a seatbelt warning system that conforms to

$7.3.

$4.1.2.3 Third option—lap and shoulder belt protection

system with belt warning.

$4.1.2.3.1 Except for convertibles and open-body ve-

hicles, the vehicle shall—

(a) At each front outboard designated seating posi-

tion have a seat belt assembly that conforms to S7.1 and

$7.2 of this standard, and a seat belt warning system that

conforms to S7.3. The belt assembly shall be either a Type

2 seat belt assembly with a nondetachable shoulder belt

that conforms to Standard No. 209 (§ 571.209), or a Type 1

seat belt assembly such that with a test device restrained

by the assembly the vehicle meets the frontal crash

protection requirements of $5.1 in a perpendicular impact.

(b) At any center front designated seating position,

have a Type 1 or Type 2 seat belt assembly that conforms

to Standard No. 209 (§ 571.209) and to S7.1 and 87.2 of

this standard, and a seat belt warning system that con-

forms to 87.3; and

Type 1 or Type 2 seat belt assembly that conforms to

Standard No. 209 (§ 571.209) and S7.1 and 87.2 of this

standard.

$4.1.2.3.2 Convertibles and open-body type vehicles

shall at each designated seating position have a Type 1 or

Type 2 seat belt assembly that conforms to Standard No.

209 (§ 571.209) and to S7.1 and 87.2 of this standard, and

at each front designated seating position have a seat belt

warning system that conforms to $7.3.

$4.13 Passenger cars manufactured on or after

September 1, 1983. Each passenger car manufactured on or

after September 1, 1983, shall—

(a) At each front designated seating position meet

the frontal crash protection requirements of S5.1 by

means that require no action by vehicle occupants;

(b) At each rear designated seating position have a

Type 1 or Type 2 seat belt assembly that conforms to

Standard No. 209 and S7.1 and 87.2; and

(1) Meet the lateral crash protection requirements of

S5.2 and the roll-over crash protection requirements of

S5.3 by means that require no action by vehicle occupants;

(2) At each front designated seating position have a

Type 1 or Type 2 seat belt assembly that conforms to

Standard No. 209 and S.7 through S7.3, and meet the

requirements of S5.1 with front test dummies as required

by $5.1, restrained by the Type 1 and Type 2 seat belt

assembly (or the pelvic portion of any Type 2 seat belt

assembly which has a. detachable upper torso belt) in

addition to the means that require no action by the vehicle

occupant.

* * * *

S55. Occupant crash protection requirements.

55.1 Frontal barrier crash. When the vehicle tra-

veling longitudinally forward at any speed up to and

including 30 mph, impacts a fixed collision barrier that is

perpendicular to the line of travel of the vehicle, or at any

angle up to 30° in either direction from the perpendicular

to the line of travel of the vehicle, under the applicable

conditions of S8, with anthropomorphic test devices at

each designated seating position described in (a) or (b)

for which a barrier crash test is required under S4., it shall

meet the injury criteria of S6. An anthropomorphic test

device shall be placed—

(a) In the case of a vehicle equipped with front bucket

seats, at each front designated seating position; and

(b) In the case of a vehicle equipped with a front

bench seat, at the driver’s designated seating position and

at any other one front designated seating position.

$5.2 Lateral moving barrier crash. When the vehicle is

impacted laterally on either side by a barrier moving at 20

mph, with a test device at the front outboard designated

seating position adjacent to the impacted side, under the

applicable conditions of S8., it shall meet the injury

criteria of S6.2 and S6.3.

S5.3 Rollover. When the vehicle is subjected to a

rollover test in either lateral direction at 30 mph with a

test device in the front outboard designated seating

position on its lower side as mounted on the test platform,

under the applicable conditions of S8, it shall meet the

injury criteria of S6.1.

S6. Injury criteria.

$6.1 All portions of the test device shall be contained

within the outer surfaces of the vehicle passenger com-

partment throughout the test.

$6.2 The resultant acceleration at the center of grav-

ity of the head shall be such that the expression:

[(1/t, — t,) \ adt] (t, — t,)

shall not exceed 1,000, where a is the resultant acceleration

expressed as a multiple of g (the acceleration of gravity),

and t, and t, are any two points in time during the crash.

However, in the case of a passenger car manufactured

before August 31, 1976, or a truck or multipurpose passen-

ger vehicle with a GVWR of 10,000 pounds or less manu-

factured before August 15, 1977, when the dummy is

restrained by a seatbelt system, t, and t, are any two

points in time during any interval in which the head is in

continuous contact with a part of the vehicle other than

the belt system.

S6.3 The resultant acceleration at the center of grav-

ity of the upper thorax shall not exceed 60g’s, except for

intervals whose cumulative duration is not more than 3

milliseconds. However, in the case of a passenger car

manufactured before August 31, 1976, or a truck or

multipurpose passenger vehicle with a GVWR of 10,000

pounds or less manufactured before August 15, 1977, the

resultant acceleration at the center of gravity of the

upper thorax shall be such that the severity index calcu-

lated by the method described in SAE Information Report

J885a, October 1966, shall not exceed 1,000.

56.4 The comprehensive force transmitted axially

through each upper leg shall not exceed 2,250 pounds.

* * * *

APPENDIX F

Title 49—Transportation

CHAPTER V—NATIONAL HIGHWAY TRAFFIC

SAFETY ADMINISTRATION

[Docket No. 74-14; Notice 10]

PART 571—FEDERAL MOTOR VEHICLE SAFETY

STANDARDS

Occupant Restraint Systems

AGENCY: Department of Transportation (DOT)

ACTION: Final Rule.

SUMMARY: The existing motor vehicle safety standard

for occupant crash protection in new passenger cars is

amended to require the provision of “passive” restraint

protection in passenger cars with wheelbases greater than

114 inches manufactured on and after September 1, 1981,

in passenger cars with wheelbases greater than 100 inches

on and after September 1, 1982, and in all passenger cars

manufactured on or after September 1, 1983. The low

usage rate of active seat belt systems negates much of

their potential safety benefit. However, lap belts will

continue to be required at most front and all rear seating

positions in new cars, and the Department will continue to

recommend their use to motorists. It is found that

upgraded occupant crash protection is a reasonable and

necessary exercise of the mandate of the National Traffic

and Motor Vehicle Safety Act to provide protection

through improved automotive design, construction, and

performance.

DATES: Effective date SEP 1 1981.

ADDRESSES: Petitions for reconsideration should refer

to the docket number and be submitted to: Docket Section,

Room 5108—Nassif Building, 400 Seventh Street, S.W.,

Washington, D.C. 20590.

FOR FURTHER INFORMATION CONTACT:

Tad Herlihy, Office of Chief Counsel, National

Highway Traffic Safety Administration, Washington,

D.C. 20590 (202 426-9511)

SUPPLEMENTARY INFORMATION:

CONSIDERATIONS UNDERLYING THE STANDARD

Under the National Traffic and Motor Vehicle Safety

Act, as amended, (the Act) (15 U.S.C. 1381 et seq.) the

Department of Transportation is responsible for issuing

motor vehicle safety standards that, among other things,

protect the public against unreasonable risk of death or

injury to persons in the event accidents occur. The Act

directs the Department to consider whether a standard

would contribute to carrying out the purposes of the Act

and would be reasonable, practicable, and appropriate for

a particular type of motor vehicle (15 U.S.C. 1392(f)(3)).

The standard must, as formulated, be practicable, meet

the need for motor vehicle safety, and be stated in

objective terms (15 U.S.C. 1392(a)). The Senate Com-

mittee drafting the statute stated that safety would be

the overriding consideration in the issuance of standards.

S. Rep. No. 1301, 89th Cong., 2d Sess. (1966) at 6.

The total number of fatalities annually in motor

vehicle accidents is approximately 46,000 (estimate for

1976), of which approximately 25,000 are estimated to be

automobile front seat occupants. Two major hazards to

which front seat occupants are exposed are ejection from

the vehicle, which increases the probability of fatality

greatly, and impact with the vehicle interior during the

crash. Restraint of occupants to protect against these

hazards has long been recognized as a means to substan-

tially reduce the fatalities and serious injuries experienced

at the front seating positions.

One of the Department’s first actions in implement-

ing the Act was promulgation in 1967 of Standard No. 208,

Occupant Crash Protection (49 CFR 571.208), to make it

possible for vehicle occupants to help protect themselves

against the hazards of a crash by engaging seat belts. The

standard requires the installation of lap and shoulder seat

belt assemblies (Type 2) at front outboard designated

seating positions (except in convertibles) and lap belt

assemblies (Type 1) at all other designated seating posi-

tions. The standard became effective January 1, 1968.

While it is generally agreed that when they are worn,

seat belt assemblies are highly effective in preventing

occupant impact with the vehicle interior or ejection from

the vehicle, only a minority of motorists in the United

States use seat belts. For all types of belt systems,

National Highway Traffic Safety Administration

(NHTSA) studies show that about 20 percent of belt

systems are used (DOT HS 6 01340 (in process)). The

agency’s calculations show that only about 2,600 deaths

(and corresponding numbers of injuries) of front seat

occupants were averted during 1976 by the restraints

required by Standard No. 208 as it is presently written.

Two basic approaches have been developed to increase

the savings of life and mitigation of injury afforded by

occupant restraint systems. More than 20 nations and two

provinces of Canada have enacted mandatory seat belt use

laws to increase usage and thereby the effective lifesaving

potential of existing seat belt systems. The other

approach is to install automatic passive restraints in

passenger cars in place of, or in conjunction with, active

belt systems. These systems are passive in the sense that

no action by the occupant is required to benefit from the

restraint. Passive restraint systems automatically provide

a high level of occupant crash protection to virtually 100

percent of front seat occupants.

The two forms of passive restraint that have been

commercially produced are inflatable occupant restraints

(commonly known as air bags) and passive belts. Air bags

are fabric cushions that are rapidly filled with gas to

cushion the occupant against colliding with the vehicle

interior when a crash occurs that is strong enough to

is accomplished by the rapid generation or release of a gas

to inflate the bag. Passive belt systems are comparable to

active belt systems in many respects, but are dis-

tinguished by automatic deployment around the occupant

as the occupant enters the vehicle and closes the door.

HISTORY OF STANDARD NO. 208

Because of the low usage rates of active belt systems

and because alternative technologies were becoming

available, the initial seat belt requirements of Standard

No. 208 were upgraded in 1970 to require passive re-

straints by 1974 (35 FR 16927; November 3, 1970). Most

passenger car manufacturers petitioned for judicial re- .

view of this amendment (Chrysler v. DOT, 472 F.2d 659

(6th Cir. 1972)). The Sixth Circuit’s review upheld the

mandate in most respects but remanded the standard to

the agency for further specification of a test dummy that

was held to be insufficiently objective for use as a measur-

ing device in compliance tests. The court stated with

regard to two of the statutory criteria for issuance of

motor vehicle safety standards:

We conclude that the issue of the relative

effectiveness of active as opposed to passive re-

straints is one which has been duly delegated. to

the Agency, with its expertise, to make; we find

that the Agency’s decision to require passive

restraints is supported by substantial evidence,

and we cannot say on the basis of the record

before us that this decision does not meet the

need for motor vehicle safety. 472 F.2d at 675.

. we conclude that Standard 208 is prac-

ticable as that term is used in this legislation.

472 F.2d at 674.

As for objective specification of the test dummy de-

vice, a detailed set of specifications (49 CFR Part 572) was

issued in August 1973 (38 FR 20449; August 1, 1973) and

updated with minor changes in February 1977 (42 FR

7148; February 7, 1977). A full discussion of the test

dummy specifications is set forth in a rulemaking issued

today by the NHTSA concerning technical aspects of

Standard No. 208 (42 FR : ).

In March 1974, the Department made the finding that

the test dummy is sufficiently objective to satisfy the

Chrysier court remand (39 FR 10271; March 19, 1974). In

the same notice, mandatory passive restraints were again

proposed. Based on the comments received in response to

that notice, the passive restraint mandate was once again

proposed in a modified form in June 1976 (41 FR 24070;

June 14), 1976). In the interim, General Motors Corpo-

ration manufactured, certified, and sold approximately

10,000 air-bag-equipped full-size Buicks, Oldsmobiles, and

Cadillacs. Volkswagen has manufactured and sold ap-

proximately 65,000 passive-belt-equ’pped Rabbit model

passenger cars. Volvo Corporation has also introduced a

relatively small number of air-bag-equipped vehicles into

service. Ford Motor Company had earlier manufactured

831 air-bag-equipped Mercurys. These vehicles were

manufactured under one of two options placed in the

standard in 1971 to permit optional production of vehicles

with passive restraint systems in place of seat belt assem-

blies otherwise required. In 1972, the standard was also

amended to require an “ignition interlock” system on

front seat belts to force their use before the vehicle could

be started. This requirement, effective in September 1973,

was revoked in October 1974 in response to a Congression-

al prohibition on its specification (Pub. L. 93- betes § 109

(October 27, 1974) ).

The Department’s final action on its June 1976

proposal (“The Secretary’s Decision Concerning Motor

Vehicle Occupant Crash Protection,” hereinafter “the

December 1976 decision”) continued the existing require-

ments of the standard (42 FR 5071; January 27, 1977) and

created a demonstration program to familiarize the public

with passive restraints. The Department negotiated con-

tracts with four automobile manufacturers for the pro-

duction of up to 250,000 passive-equipped vehicles per year

for introduction into the passenger car fleet in model

years 1980-1. Mercedes-Benz agreed to manufacture

2,250 such passenger cars, and Volkswagen agreed to

manufacture 125,000 of its passive-belt-equipped Rabbit

models. Ford agreed to participate by “establishing the

capability of manufacturing” 140,000 compact model pas-

senger cars, and General Motors agreed to “establish

production capacity” to manufacture 300,000 intermediate

size passenger cars. The December 1976 decision was

based on the finding that, although passive restraints are

technologically feasible at reasonable cost and would pre-

vent 9,000 fatalities annually when fully integrated into

the fleet, possible adverse reaction by an uninformed

public after the standard took effect could inspire their

prohibition by Congress with substantial attendant eco-

nomic waste and incalculable harm to the cause of high-

way safety. This finding was based in large part on the

Department’s experience with the ignition interlock on

1974- and 1975- model passenger cars, which was prohibit-

ed by Congress in response to industry and public opposi-

tion.

Early in 1977, the Department reconsidered the

December 1976 decision because public acceptance or

rejection of passive restraints is not one of the statutory

criteria which the Department is charged by law to apply

in establishing standards. In addition, the demonstration

program introduced a minimum 3-year delay in

implementation of mandatory passive restraints. The

Department questioned the premise that passive restraint

systems would foster consumer resistance as had the

ignition interlock system. While the ignition interlock

system forced action by the motorist as a condition for

operating an automobile, passive restraints eliminate the

need for any action by the occupant to obtain their crash.

protection benefits.

A third reason for reassessment of the December 1976

decision was the certainty that an increasing proportion

of the passenger car fleet will be small cars, in response to

the energy situation and the automotive fuel economy

program established by the Energy Policy and Con-

servation Act. The introduction of these new, smaller

vehicles on the highway holds the prospect of an increase

in the fatality and injury rate unless countermeasures are

undertaken.

Based on this reconsideration, the Department pro-

posed (42 FR 15935; March 24, 1977) that the future crash

protection requirements of Standard No. 208 take one of

three forms: (1) continuation of the present require-

ments, (2) mandatory passive restraints at one or more

seating positions of passenger cars manufactured on or

after September 1, 1980, or (3) continuation of the exist-

ing requirements in conjunction with proposed legislation

to establish Federal or State mandatory seat belt use laws.

The proposal for an occupant restraint system other

than seat belts invoked a provision of the Act (15 U.S.C. §

1400(b)) that requires notification to Congress of the

action. The Act also requires that a public hearing be held

at which any Member of Congress or any other interested

person could present oral testimony. The proposal was

transmitted to the Congress on March 21, 1977, with an

invitation to appear at a public hearin i

) g chaired by the

Secretary on April 27 and 28, 1977, in Washington, D.C. A

transcript of this meeting, along with written comments

rf “se March 1977 proposal, are available in the public

DISCUSSION OF ISSUES

The March 1977 proposal of three possible courses of

action for future occupant crash protection is grounded in

a large, complex administrative record that has been

developed in the 8 years since passive restraints were first

contemplated by the Department. Interested persons are

invited to review the NHTSA public docket that has been

compiled under designations 69-7, 73-8, and 74-14. Con-

sideration of the issues and questions that have arisen

during the years of rulemaking can be found in the

preambles to the Department’s numerous rulemaking no-

tices on passive restraints. Although many of the com-

ments on the March 1977 proposal raised issues that have

been discussed in previous notices, the significant issues

will be addressed here again, in light of the most recent

information available to the Department.

The need for rulemaking action. An important reason

to consider anew the occupant crash protection issue is the

basic and positive changes that the automobile will under-

go in the years ahead. Until recently, the basic character-

istics of automobiles sold to the American public have

evulved for the most part in response to the forces of the

market place. High premium was placed ‘upon styling

roominess, and acceleration performance. In a cheap-

energy society, relatively little attention was paid to

| efficiency of operation. Nor, until relatively recently, was

serious consideration given to minimizing the eiiverse

impact of the automobile upon air quality. 5

Recent circumstances, however, have drastically al-

tered the situation, and have made it abundantly clear

that the automobile’s characteristics must reflect broadly

defined societal goals as well as those advanced by the

individual car owner. The President has announced a new

national energy policy that recognizes a compelling need

for changes in the American lifestyle. Congress has

implemented statutory programs to improve the fuel

economy of automobiles, as one result of which this

Department has just issued demanding fuel economy

standards for 1981 through 1984 passenger cars. Right

now, the Congress is deliberating over amendments to the

Clean Air Act which will impose relatively stringent

emissions requirements effective over the same time

frame.

The trend toward smaller cars to improve economy

and emissions performance contains a potential for in-

creased hazard to the vehicles’ occupants. But technology

provides the means to protect against this hazard, and

this Department’s statutory mandate provides authority

to assure its application. The Report of the Federal

Interagency Task Force on Motor Vehicle Goals for 1980

and Beyond indicated that simultaneous achievement of

ambitious societal goals for the automobile in the areas of

fuel economy, emissions, and safety is technologically

feasible. Integrated test vehicles developed by this

Department confirm that finding and, further, demon-

strate that the resulting vehicles need not unduly sacrifice

the other functional and esthetic attributes traditionally

sought by the American car buyer.

Moreover, the socially responsive automobile of the

1980’s need not bring a penalty in economy of ownership.

The just-issued passenger car fuel economy standards are

calculated to reduce the overall costs of operating an

automobile by $1,000 over the vehicle’s lifetime. In the

case of improved safety performance, the occupant re-

straint improvements specified in this notice can be ex-

pected to pay for themselves in reduced first-person

liability insurance premiums during the life of the vehicle.

The issue of occupant crash protection has been out-

standing too long, and a decision would have been further

delayed while the demonstration programs was conducted.

A rigorous review of the findings made by the Depart-

ment in December 1976 demonstrates that they are in all

substantial respects correct as to the technological

feasibility , practicability, reasonable cost, and lifesaving

potential of passive restraints. The decision set forth in

ths notice is the logical result of those findings.

In reassessing the December 1976 decision, the

Department has considered each available means to in-

crease crash protection in arriving at the most rational

approach. As proposed, the possiblity of “driver-side only”

passive protection was considered, but was rejected be-

cause of the unsatisfactory result of having one front-seat

passenger offered protection superior to that offered other

front-seat passengers in the same vehicle. On balance,

there was found to be little cost or lead-time advantage to

this approach. The possibility of reinstituting a type of

safety belt interlock was rejected because the agency’s

authority was definitively removed by the Congress !2ss

than three years ago and there is no reason to believe that

Congress has changed its position on the issue since that

time.

Mandatory belt use laws. One of the means proposed

in the March notice to achieve a large reduction in

highway deaths and injuries is Federal legislation to

induce State enactment of mandatory seat belt use laws,

either by issuance of a highway safety program standard

or by making State passage of such laws a condition for

the receipt of Federal highway construction money.

The prospects for passage of mandatory seat belt use

laws by more than a few States appear to be poor. None of

the commenters suggested that passage of such laws was

likely. A public opinion survey sponsored by the Motor

Vehicle Manufacturers Association and conducted by

Yankelovich, Skelly, and White, Inc. indicated that a —

1 majority nationwide opposes belt use laws. Many suc

bills have been presented, no State has enacted one up to

now. Also, Congress denied funding for a program to

encourage State belt use laws in 1974, suggesting that it

does not look favorably upon Federal assistance In the

enactment of these laws.

More recently, Congress removed the Department's

authority to withdraw Federal safety funding in the case

of States that do not mandate the use of motorcycle

helmets on their highways (Pub. L. 94-280, See. 208(a),

May 5, 1976). The close parallel between requiring helmet

use and requiring seat belt use argues against the likeli-

hood of enactment of belt use laws.

These strong indications that Congress would not

enact a belt use program in the foreseeable future demon-

strate, in large measure, why the success of other nations

in enacting laws is not parallel to the situation in the

United States. In the belt use jurisdictions most often

compared to the United States (Australia and the Prov-

inces of Canada), the laws were enacted at the State =

Province level in the first instance, and not at the —

level. In the Department’s judgment, the most reasona “

course of action to obtain effective belt use laws in s e

United States will be to actively encourage their sre

ment in one or more States. An attempt to impose | :

use laws on citizens by the Federal government —

create difficulties in Federal-State relations, and “on

damage rather than further the interests of highway

safety.

Effectiveness of passive restraints. The December 1976

decision concluded that the best estimates of effectiveness

in preventing deaths and injuries of the various types of

restraint systems under consideration were as set forth in

Table I. Using the effectiveness estimates from Table I,

the projection of benefits attributable to various restraint

systems is summarized in Table II. Several comments

concerning the effectiveness of passive restraint systems

were submitted in response to the March 1977 proposal.

Insurance company commenters generally supported

the Department’s estimates. General Motors, however,

disputed the validity of the estimates in the December

1976 decision, arguing that the results experienced by the

approxmately 10,000 GM vehicles sold to the public in-

dicated a much lower level of effectiveness. It made

comparisons between accidents involving those cars and

other accidents with conventional cars, selected to be as

similar as possible in type and severity. On the basis of

this study, GM stated that the data indicate that the

“current air cushion-lap belt system, if available in all cars

would save less than the nearly 3,000 lives that can be

saved by only 20 percent active lap/shoulder belt use.”

The Department finds the methods used in the Gener-

al Motors study to be of doubtful value in arriving at an

objective assessment of the experience of the air-bag-

equipped vehicles. General Motors is a vastly interested

party in these proceedings, and the positions that it

adopts are necessarily those of an advocate for a particular

result. This is in no sense a disparagement; advocacy of

desired outcomes by interested parties is an essential part

of the administrative process. But if a study advanced by

an interested advocate is to be seriously considered from a

“scientific” viewpoint, it must be carefully designed to

avoid dilution of its objectivity by the bias of the sponsor-

ing party. The GM study fails that test. Its foundation is

a long series of qualitative judgments, which are made by

employees of the party itself. An equally serious fault is

that the basic body of accident data from which the

comparison accidents are selected is not available to the

public, so that countering analyses cannot be made by

opposing parties, nor can the judgments in the original

study be checked. General Motors had previously sub-

mitted to an earlier Standard No. 208 docket a study of

restraint system effectiveness based on similarly quali-

tative judgments by its own employees (69-07-GR-256-

01). The shoulder belt effectiveness figures arrived at in

that study were about one-half of what are now generally

recognized to be the actual values. While this later study

utilizes a somewhat different methodology, it suffers from

the same flaws in its failure to preclude dilution of its

objectivity by the bias of its sponsor.

Economics and Science Planning, Inc., submitted

three studies that made estimates of air bag effectiveness.

In one, the estimate of air bag effectiveness was at least as

high as the theoretical projections made in Table II. In

another, a very low estimate of air bag effectiveness was

made—from 15 to 25 percent.

The Insurance Institute for Highway Safety sub-

mitted another estimate of air bag effectiveness based on

the experience with the GM cars in highway use. A

selection was made of accidents in which the air bag was

designed to operate, based on frontal damage, direction of

impact, and age of occupant. In these accidents, air bags

were determined to have reduced fatalities by 66 percent,

as compared to 55 percent for three-point belts. However,

the narrow selection of accidents limits the application of

the figures derived in the ITHS study.

The Department considers that the most reliable

method of evaluating the experience of the air-bag-

equipped cars at this time is to compare the number of

injuries, at various levels, sustained by their occupants

with the number that is experienced in the general

population of vehicles of this type. The vehicles in ques-

tion are not a sampling of the general vehicle population:

they are relatively new, and mostly in the largest, “luxu-

ry” size class. Some adjustment must be made for these

factors.

The adjustment for the size of the vehicles has been

made by multiplying the overall injury figures by a factor

of 0.643, which has been found in one study (Joksch,

“Analysis of Future Effects of Fuel Storage and Increased

Small Car Usage Upon Traffic Deaths and Injuries,” Gen-

eral Accounting Office, 1975) as the ratio of fatalities per

year for this size of vehicles to the figure for the general

population. The newness of the vehicles has a double-

edged aspect: newer vehicles are evidently driven more

miles per year than older ones, but they also appear to

experience fewer accidents per mile traveled (Dutt and

Reinfurt, “Accident Involvement and Crash Injury Rates

by Make, Model, and Year of Car,” Highway Safety

Research Center, 1977). These two factors can be account-

ed for if it is assumed that they cancel each other, by using

vehicle years, rather than vehicle miles, as the basis of

comparison. With these adjustments, the expected num-

ber of all injuries of AIS-2 (an index of injury severity)

and above in severity for conventional vehicles equivalent

to the air-bag-equipped fleet during the period considered

was 91. The actual number experienced was 38, indicating

an effectiveness factor for these injury classes of 0.58.

A possibility of bias in these estimates exists in that

injuries that have occurred in the air bag fleet may not

have been reported, despite the three-level reporting

system (owners, police, and dealers) that has been estab-

lished. This bias is less likely to be present in frontal

accidents, where the air bag is expected to (and generally

does) deploy. For frontal accidents only, the number of

injuries expected is 60, or 66 percent of the total

(“Statistical Analysis of Seat Belt Effectiveness in 1973-

1975 Model Cars Involved in Towaway Crashes,” Highway

Safety Research Center, 1976); only 29 have been ex-

perienced, indicating an effectiveness factor of 0.52.

These figures confirm (and in fact exceed) the

effectiveness estimates of the December 1976 decision.

For injuries of higher severity levels, the numbers ex-

perienced are much too small to be statistically signifi-

cant.

The various assumptions and adjustments that must

be made to arrive at a valid “expected” figure, and the

possibility that some injuries were unreported, leaves

substantial room for uncertainty and argument as to the

true observed effectiveness of the restraint systems. Nev-

ertheless, the results of the field experience are encour-

aging. Even if the observed-effectiveness figures arrived

at by these calculations were high by a factor of 2, they

would still substantially confirm the estimates of the

December 1976 decision. Considering all the arguments

on both sides of the issues, the Department concludes that

the observed experience of the vehicles on the road

equipped with air bags does not cast doubt on the

effectiveness estimates in the December 1976 decision.

It has been argued that the Department should not

issue a passive restraint standard in the absence of

statistically significant real world data which confirm its

estimates of effectiveness. Statistical “proof” is certainly

desirable in decisionmaking, but it is often not available to

resolve public policy decisions. It is also clear from the

legislative history of the Act that the Department was not

supposed to wait for the widespread introduction of a

technology before it could be mandated. The Senate

report for example refers to the “failure of safety to sell”

in automobiles, and describes how the Department was

intended to push the manufacturers into adopting new

safety technology that would not be introduced volun-

tarily (S. Rep. 1301, 89th Cong. 2nd. Sess. 4 (1966)). The

Chrysler case found that “The explicit purpose of the Act is

to enable the Federal Government to impel automobile

manufacturers to develop and apply new technology to the

task of improving the safety design of automobiles as

readily as possible.” (472 F.2d at 671).

Cost of passive restraints. Passive belts have been

estimated in the past by the Department to add $25 to the

price of an automobile, relative to the price of cars with

present active belt systems. The increased operating cost

over the life of a vehicle with passive belts is estimated to

be $5. These figures are assumed valid for purposes of this

review, and were not contested in the comments received.

This Department, General Motors, Ford, DeLorean,

and Minicars all have produced estimates of the passenger

car price increase due to the inclusion of air bags. These

are sufficiently detailed and current to be compared, and

are set forth in Table III. The Department estimate has

been raised somewhat above its previous ones because of

the $14 increase in the price of the components of an air

bag system quoted by a supplier.

The General Motors estimates have been revised from

previous estimates in several respects. Research and

development, engineering, and tooling expenses are no

longer amortized entirely in the first year, but are spread

over 3 years (other estimates spread these costs over 5

years). The allowance for removal of active belt hardware

has been reduced to conform more closely to the Depart-

ment’s estimates. The newer figures reflect a somewhat

more complex system, including new sensors. Of the $81

spread between the Department and the GM estimates, all

but $11 can be attributed to differences in the following

areas: GM’s estimate of dealer profit which is based on

sticker prices (rather than actual sale price), GM’s shorter

amortization period, added complexity of the 1977 system

over the 1976 system, and the cost of major modifications

of the vehicle which the agency questions. The remaining

$11 difference must be considered as disagreement con-

cerning the elements of cost shown in the table.

The Ford estimate is the same as previously sub-

mitted. Forty-two dollars of the difference from the

Department estimate is a higher profit figure arising from

Ford’s use of sticker prices rather than actual price of sale,

which gives the dealer less mark-up. A _ substantial

amount of difference is for a complex electronic diagnostic

module, extra sensors that the Department does not view

as necessary, and the use of a knee bolster instead of a

cheaper knee air bag. Thirty-nine dollars represents

unreconciled differences.

Operating costs consist mainly of the cost of replacing

a deployed bag, fuel cost, and maintenance. Ford also

includes an amount for periodic inspection. The Depart-

ment estimate for replacement cost differs from the GM

and Ford estimates almost entirely as a result of the lower

estimate for the first cost of the system. The fuel costs

differ primarily as a result of different weight figures for

the passive systems, which may be design choices of the

manufacturers. The Department’s evaluation of manu-

facturers’ cost objections is being placed in the public

docket as required by § 113 of the Act.

If, as projected, passive restraints are effective in

saving lives and reducing injuries, as compared to existing

belt systems at present use rate, the insurance savings

that will result will offset a major portion, and possibly all,

of the cost to the consumer of the systems. There may be

some doubt on this point that arises from skepticism

concerning the behavior of insurers.

The vast majority of auto occupant injuries beyond

the minor level result in automobile, health, or life insur-

ance claims. In some States, insurers may lack a degree of

flexibility in the adjustment of premiums because of

pressures from insurance commissions. However, the

evidence indicates that premiums are fundamentally

based on claims experience.

In its comments to the docket, Nationwide Mutual

Insurance Companies estimated that savings in insurance

premiums should average $32.50 per insured car per year

if all cars were equipped with air bags. Of this amount, 75

percent is the result of an assumed savings of 24.6 percent

in the bodily injury portion of automobile insurance pre-

miums, 21 percent from a 1.5 percent reduction in health

insurance premiums (30 percent of the 5 percent of the

premiums that pay for auto-related injuries), and the

remainder from savings in life insurance premiums. The

American Mutual Insurance Alliance and Allstate re-

ferred to existing 30 percent discounts in first-party

coverage and concluded that comparable reductions would

be expected to follow a mandate of passive restraints.

It has been argued that these savings would be largely

offset by the increased cost of collision and property

damage insurance due to the increased cost of repairing a

car with a deployed air bag. This claim appears to be

largely unfounded. Using figures based on field tests, it is

estimated that each year 300,000 automobiles will be in

accidents of sufficient severity to deploy the air bag.

(Cooke, ‘Usage of Occupant Crash Protection Systems,”

NHTSA, July 1976, #74-14-GR-30, App. A.) Accepting

vehicle manufacturer estimates, it is further assumed that

the cost of replacing an air bag will be 2.5 times the

original equipment cost. If a car more than 6 years old is

involved in an air-bag-deploying accident, it is assumed

scrapped rather than being repaired. Combining these

assumptions with the estimated $112 cost of installing a

full front air cushion in a new vehicle gives a total annuai

cost of replacement of $50.4 million, or a per car cost of less

than 51 cents per year. Increases in co!'ision premiums

should, therefore, not exceed $1 per car per year. It is

noted that deployment in non-crash cases would be cov-

ered by “comprehensive” insurance policies.

The $32.50 annual insurance savings estimated by

Nationwide would be sufficient to pay for the added

operating cost (around $4 per year) of an air-bag-

equipped car with enough left over to more than pay for

the initial cost of the system. Discounting at the average

interest vate on new car loans measured in real terms (6

percent), the air bag would almost recover the initial cost

in 4 years, with a savings over operating cost of $107.

Economic and Science Planning, Inc. (ESP) has sub-

mitted a differing estimate, that insurance savings with

full implementation of passive restraints would be only

$3.60, rather than $32.50 per year. About one-half of the

difference arises from ESP’s assumption that seat belt

usage would voluntarily rise to the 44 percent level by

1984. This seems highly improbable, based on experience

to date.

Moreover, that assumption does not support the dele-

tion of projected insurance savings resulting from passive

restraints, but suggests that other courses of action (such

as whatever might be done to increase belt usage to 44

percent) might also produce savings. The remaining

differences are based on such factors as the portion of

injury costs that is paid for by insurance. If the assump-

tions of ESP are allowed to remain, the savings per year

would be about $16, and the present value of auto-lifetime

savings would be $120.

Side effects of air bag installation. Some concerns were

expressed in the comments about air bags that might be

grouped as possible undesirable side effects. One of these

was injuries that might be caused by design deployment.

There is no question that any restraint system that must

decelerate a human body from 30 mph or more to rest

within approximately 2 feet can cause injury. Belt sys-

tems often cause bruises and abrasions in protecting

occupants from more serious. injuries. The main question

is whether any injuries caused by air bags are generally

within acceptable limits, and are significantly less severe

than those that would have been suffered had the occu-

pants in question not been restrained by the air bags. The

evidence from the vehicles on the road indicates that this

is indeed the case. The injuries cited by GM as possibly

caused or aggravated by air bag deployment are in the

minor to moderate (AIS-1 and -2) category. From this it

can be concluded that injuries caused by design deploy-

ment, though worthy of careful monitoring with a view to

design improvements by manufacturers, do not provide a

serious argument against a passive restraint requirement.

A closely related question that has caused concern in

the past is whether air bags pose an unreasonable danger

to occupants who are not in a normal seating position,

such as children standing in frent of a dashboard or

persons who have been moved forward by panic braking.

Much development work has been devoted to this problem

in the past, to design systems that minimize the danger to

persons who are close to the inflation source. The most

important change in this area has probably been the

general shift away from inflation systems that depend on

stored high-pressure gas, in favor of pyrotechnic gas

generators. With these systems the flow of gas can be

adjusted to make the rate slower at the beginning of

inflation, so that an out-of-pogition occupant is pushed

more gently out of the way before the maximum inflation

rate occurs.

With one exception, there have been no cases where

out-of-position occupants have been found to be seriously

injured in crashes in which air bags have deployed. Five

of the crashes involving GM vehicles have involved chil-

dren in front seating positions (although not necessarily

out of position), and others have involved children un-

belted in the rear seat.

The only exception has been the death of an infant

that was lying laterally on the front seat unrestrained.

Apparently during panic braking that proceded the crash,

the infant was thrown from the seat. While this con-

stitutes and out-of-position situation technically, it is not .

the type of circumstance in which the air bag contributes

to injury of the out-of-position occupant.

Inadvertent actuation of an air bag may be a particu-

lar concern to the public, as noted by both General Motors

and Ford. The sudden deployment of an air bag in a non-

crash situation would generally be a disconcerting ex-

perience. The experience with vehicles on the road, and

tests that have been performed on 40 subjects who were

not aware that there were air bags in their vehicles,

indicate that loss of control in such situations should be

rare: none has occurred in the incidents up to now. There

is little question, however, that inadvertent actuation

could cause loss of control by some segments (aged, in-

experienced, distracted) of the driving population, and it

must be viewed as a small but real cost of air bag

protection.

The frequency of inadvertent actuation is therefore of

special concern. The Ford fleet of air-bag-equipped cars

(about 800 vehicles that have been on the road since late

1972, with around 500 now taken out of service) has

experienced no inadvertent actuations at all. The General

Motors fleet, about 10,060 sold mostly to private buyers

during 1974 and 1975, has experienced three inadvertent

actuations on the road. Six others have occurred in the

hands of mechanics and body shop personnel, two in

externally-caused fires or explosions, and one from

tampering in a driveway. The Volvo fleet of 75 vehicles

has experienced none. It is believed that the causes of the

GM inadvertent deployments are understood, and that the

means of eliminating or considerably reducing the likeli-

hood of all the known causes of inadvertent deployments

have been found. These include shielding of the squibs

(the device to ignite the propellant material in the bag

inflators) against electromagnetic radiation, automati-

cally disarming the system through the ignition system

when the car is not in operation, and routing wiring so

that it is less accessible to tampering or degradation.

If the figures for the combined fleets are projected

onto the U.S. vehicle population, they would amount to

around 7,000 on-the-road inadvertent actuations an-

nually, or one for every 15,000 vehicles. The chances of an

individual experiencing one as a vehicle occupant during

his or her lifetime would be on the order of 1 in 200. This

estimate probably overstates the likelihood of occurrence

since the inadvertent actuations in the GM cars to date

are believed to be due to design deficiencies that are

correctable. Thus, although it will probably continue to be

a public concern, the infrequency with which inadvertent

actuation occurs leads to the conclusion that it does not

constitute a weighty argument against a passive restraint

requirement.

Some private individuals expressed, in their com-

ments, concern over possible ear damage, or injuries that

might be caused to persons with smoking materials in

their mouths, or wearing eyeglasses. Although some early

tests with oversized cushions of prototype design produced

some temporary hearing losses, later designs have reduced

the sound pressures to the point where ear damage is no

longer a significant possibility. With respect to eyeglasses

and smoking materials, the results from the vehicles on

the road have been favorable. Of the occupants that had

been involved in air cushion deployments as of a recent

date, 71 had been smoking pipes or wearing eyeglasses or

other facial accessories. None of these received injuries

beyond the minor (AIS-1) level. From this it ean be

concluded that these circumstances do not create particu-

lar hazards to occupants of air-bag-equipped vehicles.

Toyo Kogyo and some private individuals questioned

whether air bags might experience reliability problems in

high-mileage and older vehicles. The fact that air bags

have only one moving part, and most of the critical

components rest in sealed containers during their non-

deployment life, indicates that they should perform well

in this regard. The systems in the vehicles in the field,

some of which have been in use for almost 5 years, have

demonstrated extremely good durability, with no appar-

ent flaws. Manufacturers use sophisticated techniques

such as accelerated test cycles to assure a high level of

reliability.

Reliability of restraint systems is, of course, absolute-

ly necessary. Unlike the failure of accident prevention

systems such as lights and brakes where failure does not

necessarily result in harm to occupants, the failure of a

restraint system when needed in a serious crash almost

certainly means injury will result. Vehicle and component

manufacturers are fully aware of this and take the special

precautions to ensure reliability which might not be taken

for less critical systems. The Department is equally aware

of it and has monitored manufacturer efforts to date to

ensure fail-safe performance of crash-deployed systems.

As an example, copies of reliability information request

letters from the Department to manufacturers preparing

for the demonstration program or otherwise involved in

air bag systems have been made public in the docket.

The projections of reliability to date are, of necessity,

based on pilot production volumes, and cannot demon-

strate fully that reliability problems associated with mass

production will never occur. So that manufacturers can

avoid these types of reliability problems, the Department

has settled on a phase-in of the requirements which is

described later in greater detail.

General Motors and the National Automobile Dealers

Association commented that product liability arising from

air bag performance would be a major expense. The

insurance company commenters, on the other hand, sug-

gested that the presence of air bags in vehicles could

reduce auto companies’ product liability.

The new risk of liability, attached to a requirement

for passive restraints, does not differ from the risk at-

tached to the advent of any device or product whether

mandated by the Federal government or installed by a

manufacturer by its own choice. Just as liability might

arise because of the malfunctioning of a seat belt system

or braking system, liability may also arise because of the

malfunctioning of a passive restraint system. The

mandating of a requirement by the Federal government

has, in fact, often served to limit liability, since most

jurisdictions accord great weight'to evidence showing that

a device has met Federal standards.

There is little evidence that the mandating of passive

restraints will lead to increases in product liability insur-

ance premiums. Although the advent of new technology

has often been accompanied by an increase in products

liability insurance, it is unclear how much of the increase

is attributable to increased risk and how much to in-

flation. Officials of the Department of Commerce and at

least two major insurance companies doubt that Federal

passive restraint requirements will lead to increased risk

and insurance premiums. They point out that Federal

requirements are imposed to make products safer, and

safe products are less likely to cause injury.

It is noteworthy that the Allstate Insurance Company

agreed to sell product liability insurance for the GM cars

which were to be equipped with passive restraint systems

pursuant to the demonstration program, at a rate no

greater than the product liability insurance rate for cars

not equipped with passive restraint systems.

Small cars. An important consideration in the deci-

sion concerning passive restraints is their suitability and

availability for small cars, which because of the energy

shortage will comprise an increasing segment of the

vehicle population in future years. Passive belts have been

sold as standard equipment in over 65,000 Volkswagen

cars, and must be viewed as a proven means of meeting a

passive restraint requirement. Some vehicle body designs

may require some modification for their installation, but

passive belts could be used as restraints for most bucket-

seat arrangements at moderate cost with present tech-

nology.

Some manufacturers have expressed doubt that a

large proportion of their customers would find passive

belts acceptable, because of their relatively obtrusive na-

ture and the resistance shown by the U.S. public to

wearing seat belt systems, i.e., belts that occupants must

buckle and unbuckle. These manufacturers submitted no

supporting market surveys. Further, there is reason to

believe that the experience with active belt systems is not

an accurate indicator of the experience to be expected

with passive belts. The Department anticipates that some

manufacturers will install passive belts in the front seats

of small cars having only two front seats. Passive belts

would not confront the occupants of those seats with the

current inconvenience of having to buckle a belt system to

gain its protection or of having to unbuckle that system to

get out of their cars. Unlike the interlock active belt

systems of several years ago, the passive belt systems will

have no effect on the ability of drivers to start their cars.

Nevertheless, the question of the acceptability of

passive belts may make the suitability of air bags for small

cars an important one. Although the shorter crush dis-

tance of small cars may impose more stringent limits on

air bag deployment time, the evidence from studies con-

ducted by the Department with air bags in small cars is

that there are no insuperable difficulties in meeting the

30-mph crash requirements of Standard 208 in cars as

small as 2000 pounds gross vehicle weight rating with

existing air bag designs (see, for example, “Small Car

Driver Inflatable Restraint System Evaluation Program,”

Contract DOT-HS-6-01412, Status Report April 15, 1977.)

The “packaging” problems of installing air bag sys-

tems are greater for small cars than for larger ones. They

occupy space in the instrument panel area that might

otherwise be utilized by other items such as air condi-

tioning ducts, glove compartment, or controls and dis-

plays. Toyo Kogyo (Mazda) and Honda indicated that

their instrument panels might have to be displaced 4

inches rearward, that some engine compartment and

wheelbase changes might be needed, and that some dash-

mounted accessories might have to be deleted or mounted

elsewhere. This type of problem is expected to be impor-

tant to the existing choice between air bag and passive

belt systems.

It is not the role of the government to resolve these

problems since, in the Department’s judgment, they re-

flect design choices of the manufacturers. No manufac-

turer has claimed, much less demonstrated that it would

be impracticable to install air bags in small cars without

increasing vehicle size. Occupation of instrument panel

space is certainly one of the unquantified costs of air bags,

however, and the cost is more onerous in a small car than

in a large one. At the same time, small car makers may

choose to use the less costly passive belt system. The

evidence presented to date indicates that small-car manu-

facturers would be able to meet a passive restraint

requirement by making reasonable design compromises

without increasing vehicle size.

Lead time and production readiness. There was con-

siderable discussion in the comments to the docket about

the ability of the automobile industry to develop the

production readiness to provide passive restraint systems

for all passenger cars. The installation of passive restraint

systems requires the addition of new hardware and modi-

fication of vehicle structures in such a way that the system

provides performance adequate to meet the standard and

a high level of safety and reliability on the road. A new

industrial capacity will have to be generated to supply

components for air bag systems. Major capital ex-

penditures will have to be made by the vehicle industry to

incorporate air bag systems into production models. The

Department estimates that the total capital required for

tooling and equipment for the production of passive re-

straint systems in new cars is approximately $500 million.

Establishment of an industry to produce components

for air bag systems centers on the production of the

inflator component. Five major companies have indicated

an interest in producing inflators for air bags. The

propellant presently being considered for use is sodium

azide. The primary source of sodium azide, Canadian

Industries Ltd., has a capacity of around 1 million pounds

per year, sufficient for only about 800,000 full front seat

air bag systems. Thus, additional capacity of 10 million

pounds or more of sodium azide will have to be generated,

or alternative propellants would have to be used. The

Department’s analysis of the capital requirements and

lead time to develop sufficient capacity indicates that

adequate propellant can be available for annual produc-

tion levels of several million units in less than three years.

The production of inflators (from several sources) can

reach several million units within two to three years of the

receipt of firm orders, including design specifications,

from the automobile manufacturers. A new capacity has

already been generated to supply the demonstration

program which is being pursued at this time.

The vehicle manufacturers face substantial work to

incorporate air bags in their production. In the case of

domestic manufacturers alone, the instrument panels of

approximately half of the new cars that will be manufac-

tured in the early 1980’s will have to be completely

redesigned to provide space for the passenger bag and

structure to accept the loading on the passenger bag. In

some cases, relocation of the instrument cluster is needed

to facilitate visibility over the bag module in the steering

hub.

The burden placed on the vehicle manufacturers to

redesign the instrument panel and related components to

accept air bags can be reduced considerably by phasing in

the passive restraint requirements over several years.

With phased introduction, the redesigning of instrument

panels and other components can be done at roughly the

same pace that these components would ordinarily be

redesigned, although perhaps not within the manufac-

turer’s preferred schedule.

The rulemaking docket contained a number of refer-

ences to additional reasons for phased introduction of new

systems like passive restraints: to establish quality sys

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