# Petition — Pacific Legal Foundation v. Department of Transportation

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1979
- **Citation:** 444 U.S. 830

## Text

7 Supreme Court, U.
FILED

— MAY 4 1979

x

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

13
17

25

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

12

10, 13

14,17

12,

3-4,

14

16

Ww oo OO WwW

nA nN WW WwW WwW WwW O

i)

lV

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.

2

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,

3

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,

4

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.

5

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.

6

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.

7

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’

8

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

9

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-

10

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)

1]

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.

12

“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).

13

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.

14

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).

15

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.

16

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.

17

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.

18

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
V.

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.
I

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.

4

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.

5

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).

© Chrysler Corp. v. Dep’t of Transportation, 472 F.2d 659,
675 (6th Cir. 1972).

6

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).

7

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.

8

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.

9

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).

10

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

11

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).

12

(C) that the rule ignores collateral dangers to public
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.

13

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).

14

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-

15

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-

16

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.

17

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.

18

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,

19

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.

20

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.” ;

ly

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).

21

“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.

22

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.

23

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).

24

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.

25

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
wi

DEPARTMENT OF TRANSPORTATION,
Respondent

78-1034

RALPH NADER AND PUBLIC CITIZEN,
Petitioners
pf

Brock ADAMS, SECRETARY OF TRANSPORTATION,
Respondent

FORD MOTOR COMPANY,
Intervenor

26

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).

27
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

28

reasons therefor in the rules issued) that notice and

public procedure thereon are impracticable, unneces-.

sary, or contrary to the public interest.

(c) After notice required by this section, the agency
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;
or

(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

29

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;

(C) in excess of statutory jurisdiction, au-
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.

30
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

31

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

(c) Each order establishing a Federal motor vehicle
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.

32

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.

33

(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.

34

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.

35

(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.

(C) Paragraph (2) shall not apply to a Federal
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.

36

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

(c) The procedure referred to in subsection (b) (3) (B)
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).

37

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.

38

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

39
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,

40

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

(c) Either: (1) Meet the lateral crash protection
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.

41

(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;

(c) At each front designated seating position, meet
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

(c) At each other designated seating position, have a
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.

42

$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

(c) Either—

(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;
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 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

43

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.

44

$6.2 The resultant acceleration at the center of grav-
ity of the head shall be such that the expression:

to
[(1/t, — t,) \ adt] (t, — t,)
ty

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.

* * * *

45
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,

46

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

47

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

48

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
register on a sensor device in the vehicle. The deployment
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

49

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-

50

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.

~

51

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

52

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

53

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 econom

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_0168%3A1. Public record. Not legal advice.