Appendix — Motor Vehicle Mfrs. Assn. of United States, Inc. v. State Farm Mut. Automobile Ins. Co.

Supreme Court brief1983

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Nos. 82-354, 82-355, 82-398 | aS

IN THE *

Supreme Court of the United States

OcTOBER TERM, 1982

Motor VEHICLE MANUFACTURERS ASSOCIATION OF

THe Unrrep Srares, Inc., et al., Petitioners,

Strate Farm Murua Auro nos Insurance Company, ef al.,

Respondents.

ConsuMER ALERT AND Pacific Leal Founpation, Petitioners,

Strate Farm Mutua Auro nos Insurance Company, et al.,

Respondents.

Unrrep States DEPARTMENT OF TRANSPORTATION, et al.,

Petitioners,

Strate Farm Mutua. Avtomosi_e Insurance Company, et al.,

Respondents.

: On Writs of Certiorari to the United States

Court of Appeals for the District of Columbia Circuit

APPENDIX TO BRIEF OF PETITIONERS MOTOR

VEHICLE MANUFACTURERS ASSOCIATION OF

THE UNITED STATES, INC., AMERICAN

MOTORS CORPORATION, CHECKER MOTORS

CORPORATION, CHRYSLER CORPORATION,

FORD MOTOR COMPANY, GENERAL MOTORS

CORPORATION, VOLKSWAGEN OF AMERICA,

]

i i

dee at

nt Fae

1 N

Volkswagen of America, Inc.

Lioyp N. Curt

Joux H. PickeRInc

Wut R. Praun“

Anprew B. Weissman

Wiiiiam R. Ricwarpson, Jr.

Terrence J. Leany

Wu, Cutter & Pickerinc

1666 K Street, N.W.

Counsel for Petitioners

TABLE OF CONTENTS

Brief for Intervenors Motor Vehicle Manufacturers Asso-

ciation of the United States, Inc., et al., State Farm

Mutual Automobile Insurance Co v. DOT, Nos. 81-

2220, 81-2221 (D.C. Cir., filed February 12, 1982)

Affidavit of J.D. Withrow pw.

Affidavit of Erie E. Childs.

Affidavit of William J. Wittenberg ..............

NHTSA’s Memorandum in Response to the Court’s Au-

gust 4, 1982 Order (October 1, 1982) ............

State Farm’s yo : 1 NHTSA's

Comments on the September ective Date

(October 8, 1982) CF

State Farm’s ——— —— in to

NHTSA's Gelaber 1 Submission 1882

NHTSA's — — . — and —— Sup-

plemental (November 2, 1982) .......

Page

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 81-2220

Srark FakM MUTUAL AUTOMOBILE

INSURANCE Co., et. al.,

Petitioners,

DEPARTMENT OF TRANSPORTATION, et al.,

Respondents.

No. 81-2221

NATIONAL ASSOCIATION OF INDEPENDENT INSURERS, et al.,

Petitioners,

NATIONAL HIGHWAY TRAFFIC SAFETY ADMINISTRATION,

Respondent.

BRIEF FOR INTERVENORS MOTOR VEHICLE

MANUFACTURERS ASSOCIATION OF THE UNITED

STATES, INC., AMERICAN MOTORS CORPORATION,

CHECKER MOTORS CORPORATION, FORD MOTOR

COMPANY, GENERAL MOTORS CORPORATION,

VOLKSWAGEN OF AMERICA, INC., AND AUTOMOBILE

IMPORTERS OF AMERICA, INC.

* * * *

AFFIDAVIT OF J. D. WITHROW

VICE PRESIDENT—ENGINEERING

CHRYSLER CORPORATION

J.D. Withrow, being duly sworn, states:

1. I am Vice President—Engineering for Chrysler

Corporation. In that capacity I am in charge of all engineering

design and development work for Chrysler. I have 25 years

experience in the engineering and product planning activities

of Chrysler. From that experience and from the requirements

of my present position, I am thoroughly familiar with the lead

time requirements for the design, development and manufac-

ture of automobile components and automobiles.

2. Ihave been informed by Chrysler’s General Attorney's

Office that State Farm Mutual Automobile Insurance Co., the

National Association of Independent Insurers and certain

other parties are challenging the October 23, 1981 order of the

National Highway Traffic Safety Administration rescinding

the passive restraint requirements of FMVSS 208 and seeking

to have those requirements reinstated. At issue are require-

ments that automatic seat belts or other passive restraints be

installed on large and medium sized vehicles for the 1983 model

year and on all other vehicles for the 1984 model year. I am

further informed nat this court has requested that we advise

them of the time that would be required by vehicle manufactur-

ers to take appropriate action if the court were to invalidate

NHTSA’s rescission order.

3. While Chrysler was energetically pursuing the develop-

ment of automatic seat belt systems prior to NHTSA’s rescis-

sion of the passive restraint requirements of FMVSS 208, its

program for 1983 model requirements was only about half

completed and its program for 1984 model requirements had

just begun. Completing development of automatic seat belt

systems meeting the requirements rescinded by NHTSA

would be a complex, time-consuming process involving major

tear up and redesign of several major vehicle assemblies in-

cluding both front doors, roof structure, instrument panel,

interior trim, front seats and the seat belt assembly itself for all

passenger cars built by Chrysler Corporation. For example,

doors must be redesigned to permit the mounting of the seat

belt retractor assemblies with sufficient reinforcing structure

to withstand the high loads imposed on the system in vehicle

crashes. In addition, a mechanism must be provided in the door

to deactivate the inertial locking mechanism of the retractor

when the door is opened so that the door will function properly

and a mechanism must be developed to provide a shoulder

harness turning loop to facilitate occupant entry or exit. In the

system Chrysler had under development, the door arm rest or

trim panel must be redesigned to house the retractor and

related components. Indeed, as a practical matter, the internal

structure and interior surface of all front doors must be sub-

stantially modified and essentially retooled. In essence, exist-

ing components must be thrown away and new ones developed

and tooled. When these tasks are completed a multitude of trim

and other parts must be designed and developed before a

commercially acceptable door assembly is ready for produc-

tion. The same type of situation exists for most other compo-

nents affected by the passive belt system. Exhibit A is

attached illustrating the types of parts that must be developed

or redesigned for passive belts.

4. Installation of passive belts is further complicated by

the fact that Chrysler has never built vehicles equipped with

passive belt systems. Some of Chrysler’s competitors have

offered automatic seat belt systems on a very limited number

of vehicles; those systems, however, are of a totally different

design than that contemplated for Chrysler vehicles. This

means that there is no automatic seat belt hardware presently

designed or in production which can be incorporated into

Chrysler vehicles. Even if such hardware were available, ex-

isting Chrysler vehicles have no provision for passive belts and

major component assemblies such as doors, seats and instru-

ment panels will have to be modified to accommodate passive

belt hardware. It is much simpler from a lead time standpoint

to adapt existing hardware to vehicles which already contain

provision for incorporating such hardware. Since neither the

hardware nor the provision for incorporating the hardware

exists in Chrysler vehicles, there is no means of significantly

compressing necessary lead time requirements. I would also

point out that the existence of manual seat belt hardware and a

provision for installation of that hardware enabled some manu-

facturers to continue to use manual belts on some vehicles after

NHTSA’s April order delaying passive belt installation for

certain vehicles until the 1983 model year.

5. Once automatic seat belt systems complying with the

requirements of FMVSS 208 are designed, additional time is

required to obtain tooling necessary to produce the required

hardware and vehicle components, and to develop the neces-

sary production processes for use in manufacturing automatic

belt components and incorporating them into vehicles at our

assembly plants. When the system is designed and production

capability established the production methods to be used must

be tested to assure that the systems can be efficiently pro-

duced. Finally, the completed production prototypes must be

tested to establish compliance.

6. Over two years lead time is required to design, develop

and incorporate into existing vehicles automatic seat belt sys-

tems of the type we were working on prior to October 29, 1981.

Attached as Exhibit B are a series of charts demonstrating the

lead time requirements for passive belt hardware originally

developed several months ago for a 1984 model passive belt

program.

7. I conelude that we cannot offer any 1983 model vehicles

and cannot offer most 1984 model vehicles equipped with auto-

matic seat belt systems. Applying the information set forth in

Exhibit B to the current situation, our lead time requirements

may be summarized as follows:

(a) Vehicles with over a 100 inch wheel base. Develop-

ment of an automatic belt system for our so-called E Body

vehicles had progressed the farthest when NHTSA issued its

October 23, 1981 order because FMVSS 208 originally re-

quired that these vehicles comply by September 1, 1982 (1983

model year). If the passive belt requirements of FMVSS 208

were reinstated by June 6, 1982, we would be able to in-

corporate such a system to 1984 model E Body vehicles.

(b) All other existing vehicles. When NHTSA issued its

October 23, 1981 order rescinding the passive restraint re-

quirements, work on automatic belt systems for all other vehi-

cles was at an early stage since compliance for these vehicles

was not required until September 1, 1983 (1984 model year).

As of October 23, 1981 this program was 7 weeks behind

schedule. If the requirement for automatic seat belts was

reinstated after a delay of several months it would now take at

least 12 weeks to acquire and where possible reassemble the

people necessary to design and develop automatic seat belts

and reinstitute our program. As a result, over two years lead

time (112 weeks) would be required to incorporate such sys-

tems on these vehicles. This means that if the passive restraint

requirements were to be reinstated it would have to be done no

later than June 6, 1982 in order for us to meet a September 1,

1984 effective date for existing vehicles other than E Body

vehicles.

(e) New vehicles. Chrysler is developing a new model

vehicle for model year 1985 called the H Body. Incorporating

automatic belts into a new vehicle would pose further difficul-

ties since it would disrupt the highly interrelated design proc-

ess of a vehicle presently being designed for future production.

In the case of a new vehicle configuration, such as the H Body,

an additional 13 weeks of lead time would be required to install

automatic belts on H body vehicles over that required to install

such belts on existing vehicles. As to this new vehicle line the

passive belt requirements would have to be reinstated no later

than March 7, 1982 to permit Chrysler to incorporate such

belts on 1985 model H Body vehicles.

8. It is not practicable to shorten the lead time set forth

above. Since 1978 Chrysler has reported almost $3.5 billion in

losses and is currently operating under $1.2 billion in federally

guaranteed loans. As a result we have been forced to cut back

severely in all areas of the Corporation including Engineering.

We simply do not have the manpower or monetary resources to

devote to a crash development program attempting to com-

press lead time. Even if we had unlimited resources, the fore-

going lead times could not be significantly compressed without

substantially increasing the risks of inadequate system design,

production error and customer dissatisfaction.

9. In my judgment, a mid-model year introduction of pas-

sive restraint systems would not be practicable. Such a mid-

year introduction of a major new subsystem involving changes

to a number of vehicle components including right and left

front doors, roof structure, instrument panels, seats, belt

assemblies and numerous pieces of color coordinated interior

trim on virtually all vehicle configurations built by Chrysler

would require us to have a complex second launch in the middle

of a model run. Such a second launch undoubtedly will require

plant shut-down for a substantial period of time to remove

obsolete components from the plant, to modify tooling, to fill

the assembly line with new unique components, to incorporate

new manufacturing processes and to instruct assembly line

workers in performing new operations. This process would be

difficult and time-consuming for any change in vehicle hard-

ware. The task involved here, where substantial change and

coordination would be required in the middle of a model run to

assure proper vehicle assembly and color coordination of

numerous modified interior trim parts, would be nearly unpre-

cedented. Frankly, we do not have the manpower or other

resources to conduct such a second launch of this magnitude.

Temporary plant shutdown required by a econd launch would

have a severe adverse impact on Chrysler, resulting in the loss

of sales and substantial other economic losses. Such a tempo-

rary shutdown could threaten the continued viability of

Chrysler.

10. The lead time requirements discussed above are based

on the assumption that the passive restraint requirement

would be reinstated without change except for the effective

dates and that we would use the type of system we were

developing prior to NHTSA’s rescission of the passive re-

straint requirements. I understand the Petitioners to be argu-

ing that any reinstatement should include a prohibition of

detachable automatic belts. This would represent a major

change for Chrysler since we had planned to use detachable

automatic belts in all of our vehicles as permitted in the stand-

ard. Such a change would force us to start over on all passive

belt systems. In my judgment, a requirement of non-

detachable passive belts would add over one model year and

possibly several model years to each of the lead time schedules

discussed above since we would have to develop and design an

entirely new system with which we have no experience even in

Engineering. Such a program would require us to investigate,

address and attempt to resoive a number of additional unre-

solved problems like the problem of emergency release. Some

form of emergency release is necessary in the event of acci-

dent. Yet the type of non-detachable belt advocated by Peti-

tioners likely would of necessity require an emergency release

mechanism designed into the seat belt retractor. The location

of such a mechanism in the door where it could be jammed in a

side impact is not in the interest of vehicle safety. At the same

time location of the mechanism on the inboard side of the seat

would make it very difficult to rescue an injured driver or

occupant from a vehicle following an accident. This again would

not be in the interest of vehicle safety.

11. In my judgment, reinstatement of the passive belt

requirements of FMVSS 208 without the lead time discussed

above could result in Chrysler being forced to discontinue

vehicle production for a significant period of time. Chrysler

would not be able to survive a severe production disruption of

this type.

/s/ J. D. Withrow

J.D. WITHROW

Subscribed and Sworn Before me

this 22nd day of January, 1982.

/s/ Lena Zolin

LENA ZOLIN

Notary Public Wayne County, Mich.

My Commission Expires Feb. 1, 1982

EXHIBIT A

Listed below are the major systems which must be either

developed or redesigned to incorporate a detachable belt

system:

I DOOR SYSTEMS: For Each Front Door—

1) Door inside panel—large formation to mount two

retractors

2) New inside door panel reinforcement

3) Upper door frame bracket with weld nut to mount

upper torso belt turning loop

4) Upper door opening anchor plate with guide pin to

transfer upper torso belt loads to the body

5) Attaching hardware: Five (5) bolts, three (3) nuts

6) Lower door bracket with weld nut to attach the lap

belt turning loop

Two (2) door cars with frameless glass must have the

following additional changes for each door:

1) Rework the door daylight opening to accept a

structural door post for the turning loop

2) New upper turning loop carrier (post)

3) New post/body interlock system consisting of two (2)

brackets, — and attaching bolts

Reinforcement bracket welded to the door inside

panel and door shut face to accept the door post

Attaching bolts—post to reinforcement

II DOOR AND BODY TRIM SYSTEMS

Door trim panel cut-out

New arm rest to accept large spool retractors

Additional attachments (screws)

Additional sound and vibration protection

Additional sealing modifications

Changes on the ‘B’ pillar trim

Changes on the quarter panel trim (2 doors)

Changes on the headliner panel

New body upper ‘B’ pillar cover to reinforcement

New anchor guide receptacle cover at the door frame

corner

III SEATING SYSTEM

Relocate power seat control center from side of the

seat to front

Modification to the control center mounting bracket

— to the seat side shields (with power

seat

Change seat contour by changing the seat cushion

and cover

Bench seat model cars—fixed arm rest

IV INSTRUMENT PANEL SYSTEM

All vehicles will require substantial change. The following list

based on the 1983 model ET-41 is given as an example:

), Lexan base panel instead of A. B. S. tool revisions

needed

2) VA type point mounting screws

11)

Insulation, paint, or material changes for all —

with plastisizers that contact lexan- column t,

crash pad, wires and control cables

Revise lower reinforcement with four (4) added

— two (2) end braces and two (2) column area

races

Side cow! nut and screw changes (all K and G bodies)

New steering column cover. Two (2) approaches, a

two piece lexan cover with a ramp shape to detlect

knees outward during impact and 2 inch sheet metal

and foam bolster that crushes under impact

Relocation of rear lamp switch and fog lamp switch

Revise silencer pad

Fuse block serviceability will be affected

Two (2) extra lower left trim bezels must be relased

with attaching screws

Added panel part numbers—vendor and assembly

plant complexity

V FRONT SEAT BELT SYSTEM (TWO PER VEHICLE)

New upper torso retractor with mechanical pawl

blocker assembly; consists of the following sub-

assemblies:

¢ Retractor shaft

Large arbor and ratchet assembly

Lock pawl, pin and bushings

Pendulum and pendulum support assei..bly

Mechanical blocker lever assembly

Lever return spring

¢ Webbing return spring

¢ Tension reliever assembly

New lap belt retractor with mechanical pawl bracket

assembly consists of the following sub-assemblies:

¢ Retractor shaft

Arbor and ratchet assembly

¢ Lock pawl, pin and bushings

Pendulum and pendulum support assembly

Mechanical pendulum blocker lever assembly

Mechanical lever return spring

¢ Webbing return spring

Upper turning (to attach to either door frame

—— post on 2 door with frameless

ner of the door

Seat belt latch a

Seat belt buckle assembly

Retractors carrier bracket

* * _* *

ACTIVITY NO.

TOTAL 1984 MODEL YEAR L-24 AUTOMATIC SEAT BELT PROGRAM

IN CHRONOLOGICAL ORDER EXTRACTED FROM THE NETWORK

SCHEDULED DATE

COMMITMENTS

6 sl

6/16/81

7/15/81

T/29/81

7/381

77 1¹

8 3/81

811081

8/18/81

9/15/81

9/24/81

1 81

10/13/81

10/29/81

> Pr „ „

ACTIVITY TITLE

BEGIN IMPACT DEVELOPMENT

START PRELIM LO SWITCH

PRELIM L/O-ANCHOR & T’LOOP LOC

PRELIM SYSTEM DEFINED

COMP PRELIM SWITCH L/O

DR UPR + INR PNLS CONFIRM L/O

ANCHOR PROVE OUT

HDWR COMPONENTS LAYOUTS N/R

ENVIRONMENTAL LAYOUTS

ENGRG MOCK-UP VEH

COMP FINAL SWITCH Lo

START I'PNL DO THEMES

START ryNL FEAS STUDIES

PRELIM INI. IMPACT REQRMTS

STRG COLUMN CONCEPTS

FEASIBILITY-INTERLCK CONCEPTS

2 DIMENSIONAL TRIM CONCEPTS

REL PROG CAR SWITCH DESIGN

DESIGN OFFICE CONCEPTS COMP

S’BERGER

DUPREE

SHEA

S’BERGER

DUPREE

DYNES

S'BERGER

SHEA

DUPREE

GALE

HOLTSLAG

S’BERGER

KIRBY

ACTIVITY

TIME

0.0

0.2

0.0

6.2

6.0

2.4

0.0

0.2

3.8

2.8

0.0

14.8

0.0

6.2

1.0

7.6

4.0

ACTIVITY TITLE

P.D.M. CONCEPT APPRV CORP.

MANAGEMENT

3 DIM INT CONCEPT STUDIO REL

PRELIM LO DOOR STRUCTURE

H’'WARE SAMPLES AVAIL-PROTOTYPE

SURFACE DRWG POST FRT DR

ANCHOR

SURFACE

DRWGS-COVERS-BRKT-T/LOOP

SURFACE DRWGS-DR TRM PNL AREST

COMPLETE PROTOTYPE SAMPLE

TESTS

I'PNL D.O. THEMES HAND-OFF

D.O. PROVE-OUT COMPLETE

SURFACE DRAWING RELEASE

NL FEAS STUDIES HAND-OFF

IMPACT TEST & PROVE-OUT

COMP PROG CAR H’WARE DESIGN L/O

START I'PNL PROD DESIGN

COMP .O. PROVE OUT STUDIES

NI. DESIGN AID REL

'PNL P’'TYPE IMPACT INFO REQ’D

L/O REL-PROG CAR DOOR STRUCT

SURFACE DRWG RELEASES

GALE

WRIGHT

J. LOVE

HOLTSLAG

S'BERGER

SHEA

KINCAID

WRIGHT

HOLTSLAG

S’BERGER

DYNES

J.LOVE

14.2

4.0

2.0

0.4

6.0

4.4

4.8

6.0

2.0

NETWORK

ACTIVITY NO.

601

SCHEDULED DATE

COMMITMENTS

2/17/82

3 3

331

1 5/82

4/12/82

ACTIVITY TITLE

FINAL ENVIRONMENTAL LAYOUT

PROGRAM H'WARE SMPLS AVAIL

COMP HARDWARE SAMPLE TESTS

SOUND & ELECTRONIC

COMP I'PNL P’TYPE IMPACT DEV

BEGIN PARTS TESTS

COMP I'PNL DESIGN AID

IMPACT PROVEOUT-PROD DESIGN

I'PNL A. D. MR. FOR DIE MODEL

I'PNL VALID'N CAR RELEASE

QTR TRM PNL L/O COMP

FRT DOOR ARM REST L/O COMP

COMP PARTS TESTS

TRIM PROVISIONS

BIW L/O-RF RAIL FORM,8 POST,ETC

VALID'N CAR DESIGN RELEASE

FRT DR WIRING PROVISION L/O

COMP PROG I/P WRG DEV

COMP PROD PART DETAILS

COMP FINAL HARDWARE LAYOUT

EMD RELEASE - DOOR STRUCTURE

REL PROG I WRG

RELEASE SWITCH DESIGN

RESPONSIBILITY

SHEA

ERNSTER

SHEA

JENKINS

S'BERGER

DUPREE

KOZICKI

S'BERGER

KINCAID

C.LOVE

DUPREE

C.LOVE

DOERR

C.LOVE

CUNNINGHAM

DUPREE

SHEA

DYNES

CUNNINGHAM

DUPREE

12.4

15.0

16.6

14.2

ACTIVITY

NETWORK SCHEDULED DATE TIME

ACTIVITY NO. COMMITMENTS ACTIVITY TITLE RESPONSIBILITY IN WEEKS

561 729 BIW REL-RF RAIL FORM,8 POST. ETC DOERR 6.0

720 8/ 9/82 FRT DR ARM REST DETAIL CHK C.LOVE 9.0

730 8/ 9/82 TOOL AID-DOOR TRIM PANEL DUBAY 9.0

955 8 9/82 SOUND & ELECTRONIC INFO JENKINS 0.0

975 8/ 9/82 FAB/INSTALL PROG CAR HARNESS CUNNINGHAM 2.0

680 8/10/82 RELEASE PRODUCTION DETAILS SHEA 4.0

113A 8/16/82 I'PNL PRODUCTION DETAIL COMP KINCAID 11.0

212 8/16/82 COMPLETE DR. MOCK-UP BELT MTGS KOZICKI 6.0

841 8/16/82 PROG DR WRG DEV COMP CUNNINGHAM 4.0

992 8/16/82 MANAGEMENT REV OF DESIGN AIDS KOZICKI 0.0

760 8/23/82 QTR TRM PNL DETAIL CHK C.LOVE 5.0

71¹ 8/30/82 INITIAL PURCHASING REQSTN IMRICK 3.0

842 8/30/82 PROG REL DOOR WRG CUNNINGHAM 2.0

IP9 9/10/82 COMP I’PNL DIE MODEL DUBAY 14.6

910 9/14/82 FAB/INSTALL PROG CAR HARNESS CUNNINGHAM 2.0

340 9/16/82 SPECIFY VEHICLES TO ORDER S’BERGER 0.0

230 9/17/82 PURCHASING RELEASE IMRICK 8.0

240 9/17/82 T/A - DR VS PANEL DUBAY 8.0

562 9/24/82 TOOL AIDS - BIW DUBAY 8.0

761 9/28/82 INITIAL PURCHASING REQSTN IMRICK 5.0

77⁰ 9/28/82 TOOL AID-QTR TRM PNL DUBAY 10.0

970 10/19/82 COMP DEVELOPMENT Y HARNESS CUNNINGHAM 10.0

320 10/28/82 PROCURE/FAB COMPNS: ERNST & THIB 17.6

ACTIVITY NO.

3883533838888

> *

3 8

8832882

SCHEDULED DATE

COMMITMENTS

10/28/82

117 2/82

117 9/82

11/18/82

11/22/82

11/23/82

11/29/82

12/ 2/82

12/ 6/82

12/13/82

12/22/82

1/20/83

2 4/83

3/ 4/83

ACTIVITY TITLE

ORDER VALID'N CARS

COMP I/PNL HARNESS DESIGN

COMP DEV FRT DR WIRE HARNESS

REL PROD I/PNL HARNESS

INSTALL PARTS AT BUILD-UP

I'PNL PROGRAM PARTS AVAILABLE

COMP DES FRT DR WIRE HARNESS

START VALIDN CAR BUILD

REL FRT DR WIRING HARNESS

VALID'N CAR I’PNL COMPLETE

COMP VALIDN CAR BUILD

BEGIN VEH VALIDATION TESTS

COMP VEH VALIDATION TESTS

VALIDATION REPORT

PROD PARTS AVAILABLE

C’PTE PARTS AVAIL I’PANEL

C’PTE PARTS AVAIL DOOR HWARE

C’PTE PARTS AVAIL S'BELT H’'WARE

C’PTE PARTS AVAIL FRT DR A’REST

C’PTE PARTS AVAIL QTR TRM PNL

C’PTE PARTS AVAIL SWITCH

C’PTE PARTS AVAIL FRT DR WIRING

C’PTE PARTS AVAIL I'PNL HARNESS

RESPONSIBILITY

THIBODEAU

CUNNINGHAM

THIBODEAU

KINCAID

CUNNINGHAM

THIBODEAU

CUNNINGHAM

KINCAID

THIBODEAU

S’BERGER

ACTIVITY

TIME

IN WEEKS

6.0

2.0

8.0

1.0

3.0

24.8

2.0

4.0

1.0

1.6

1.0

1.4

3.0

0.8

30.0

26.4

25.4

30.8

28.0

24.0

3.0

15.0

18.0

NETWORK

ACTIVITY NO.

SCHEDULED DATE

COMMITMENTS

4/ 8/83

ACTIVITY TITLE

BIW PARTS FOR C’PTE START

BEGIN VEH COMPLIANCE TESTS

COMP VEH COMPLIANCE TEST

COMPLIANCE REPORT

VOL PROD FRAMING START

RESPONSIBILITY

MTS

S’BERGER

S'BERGER

MTS

ACTIVITY

TIME

IN WEEKS

26.2

11.8

8.6

0.2

17.6

* * * *

APPENDIX TO AFFIDAVIT

OF ERIC E. CHILDS

LEAD TIME IN THE DEVELOPMENT OF VEHICLES AND

THEIR COMPONENTS FROM CONCEPT TO PRODUCTION

A. LEAD TIME

1. “Lead time” is the span of time needed to carry out the

steps required to place into production a vehicle, or a

component or subassembly of components of the vehi-

cle, which meets all of the vehicle manufacturer's

acceptance standards. That span varies with the task

being considered; under the current Ford

Timing Standard, * discussed in greater detail below

in section B of this Appendix, an all-new vehicle

generally requires a lead time of 5% years, but minor

components may require considerably less time. The

lead time needed for a given component varies with its

design complexity the way it interrelates with

other vehicle components. Most components must be

especially os for the Ford vehicle or family of

vehicles in which they are to be used; very few “off the

shelf” items fit into every Ford vehicle.

2. The lead time for “| must be adequate to allow

performance of the following steps. These —— are

generally sequential, but may overlap somewhat:

a. Concept The selection of a series of de-

sign alternatives, an optimizing

approach which typically con-

siders factors such as function,

reliability, investment and vari-

able (unit) cost, and the rapidity

with which the concept can be

brought to production.

*Vehicles intended for introduction after the 1985 model year

(which are already under development) are being developed under

this Standard. Vehicles intended for introduction up to the 1985

model year employ a prior standard requiring five years for the

development of an all-new vehicle.

e. Development

d. Tooling

e. Functioning

Specific rendition of an agreed

upon concept as it applies to the

vehicle in question, resulting in

information (e.g., — 2

drawings or die models) suffi-

cient to fabricate that part, or

assembly, or vehicle.

Test or prototype program us-

ing parts from temporary tool-

ing to ascertain whether the

part. assembly or vehicle assem-

led from such parts meets the

performance requirements

upon it, , if not, to

identify and resolve any prob-

lems in the design, such as func-

tion, durability, fit and finish.

This phase answers the ques-

tion, “Does the design work as

— nel AM does not, 1

i ign step must

— and new parts must be

procured for development

verification. If it does, the veri-

fied design is released for

— of production tool-

ae « the released desi

provides the means to make

part or assembly in quantities

sufficient to support mass

of the vehicle.

Parts produced from production

tools must be trial assembled to

verify their acceptablility for

ion with respect to func-

ion, fit and appearance, and to

ascertain that the process and

tooling for assembling the vehi-

cle an vehi-

cle with those parts. Failures at

this level may require ign,

redevelopment (in the case of

jor failures, which are rare),

or revisions in tooling, in the

parts fabrication process or in

the vehicie assembly process,

f. Production/ Parts that function properly are

Assembly authorized for — ay Time

then is required for the

suppliers, whether within or

outside Ford, to obtain raw

materials and manufacture the

— at rates — AE

uction capacity of t 5

Assembly of complete vehicles

can begin only when all parts are

avai in adequate quantities

and continuing supplies are

assured.

A typical new car may have 1,400-1,500 new assemb-

lies made up of some 30,000 or more parts. Obviously.

eo the foregoing sequence of steps that must

ollowed to develop a vehicle and parts which, when

7 — will perform reliably in accordance

with Ford’s specifications, a complex assembly such

as an instrument cluster (which may be made up of as

many as 300 — — eae Gene te ign,

develop and i would a single part such as

an arm rest or door handle. However, the progress of

each part from concept to production follows the se-

quence of steps described above.

When a part or assembly in an already-design vehicle

is e , not only that change, but also the cumula-

tive effect of the r changes which the first

necessitates affect lead time schedules. Not pri y

11 12

frqm the complex interrelationships among all steps

that must be coordinated if the development and

production process is not to stop. Vehicle lead time

— 4 compenses lead Hines as

well as the time required to conceptualize and coordin-

ate development and production of the whole vehicle.

B. PROGRAM TIMING AT FORD FOR A NEW-VEHICLE

PROGRAM.

A great number and variety of Ford parts are in-

volved in vehicle — — and manufacture, and

the work of a great number of specialized Ford activi-

the point of production in the shortest. practienble

point o ion in rtest practi

time a new vehicle which meets Ford specifications

for quality and reliability. (Please see attached Ex-

hibit I.) Genericall , these activities are Planning,

neg een Design, Manufacturing/Procurement

Assembly. The product development proc::ss is

sequential in nature; the timing performance of one

Ford organization depends upon the performances of

preceding organizations. The coordination of these

activities is accomplished through the use of the so-

called “Program Timing Standard” (Standard).

The Standard specifies a sequence of key steps, the

activity or activities — for performing each

step, point in time prior to Job #1 (the date on

which mass- produetion begins) when that step is to be

performed, and the span of time alloted for its comple-

tion. Each time span is the minimum deemed neces-

sary to quality at acceptable cost

levels. A failure to com a step on time creates a

risk that cost, fit, finish, or performance objectives for

the part or vehicle may not be met, therefore

draws the particular attention of management.

Very few cars are all new in a given year. Exhibit II

— 4 —— 44 — sty Ene

which is currently produced by Ford. From this it can

be seen that there are rarely more than three or four

really new vehicles introduced in a given year. The

development period for Ford vehicles now being de-

for introduction after the 1985 model year

——— —1— —

exterior styling changes are being made, to 66 mon

for an all-new vehicle. Vehicle development programs

are staggered to distribute the workload more evenly.

Each activity involved in the development process is

w in any given calendar year on a succession of

developmental vehicles intended for introduction

over a period of three or more model years.

4. The Planning Sequence

ing sequence at Ford consists of three major

The

phases, the Conce

tion . As

, the Advance, and the Produc-

y mentioned, for an all-new

vehicle their performance is scheduled to require 5-1/2

years for an all-new vehicle:

a. Concept

66 months before

Job #1 (i.e., the

date on which

mass

of vehicles

begins)

b. Advance

54 months before

Job #1

In this span of 12-15 months

which is scheduled to start 66

months before Job #1, (the date

on which mass-production of

vehicles begins) alternative

vehicle concepts for a given

model are explored. New

powertrains start this phase

some nine months earlier (i. e.,

75 months prior to Job #1). By

“concepts” is meant the possible

combinations of vehicle ele-

ments such as size, package (us-

able room for people, luggage,

components), construc-

tion, bumpers, oo By suspen-

sion and engine and drive line

placement for meeting the

requirements of the market-

place and the law in the context

of available resources. Among

the procedures used to gather

information for generating con-

cepts are market surveys,

competitive model tear downs

and drive evaluations, and other

er studies.” The activities

his phase typically produce a

series of alternative concepts

and a generalized notion of a

vehicle size that is practicable.

The concept alternatives are

further developed in the Ad-

vance phase, which is scheduled

to begin 54 months before Job

#1 and to last 16 months. The

objective of this phase is to

e. Production

38 months before

Job #1

select a single program concept.

That concept will include a set of

vehicle assumptions that de-

scribes critical dimensions

(called “Hardpoints”) and com-

plete specifications for vehicle

aspects such as weight, fuel

economy, repairability, invest-

ment and cost, and “image” —

how the intended vehicle will re-

late to the market. These

assumptions are developed b

means of the first detailed wo

in +o clay —

verify the acceptability of vehi-

poe Bed — and appearance.

These assumptions are de-

veloped by cost studies, and by

construction and test of proto-

t vehicles called Advanced

echanical Prototypes; the test

results verify chassis, structure,

and suspension concepts.

(1) Management acceptance

(which is scheduled to occur

38 months before Job #1) of

assumptions deve in

the Concept and Advance

starts the last

Production). Initially,

le 11 a sin-

v conce

and ves critical —

ele dimensions called

“Structure Hardpoints.”

* I — f r in thie —

* for in

occurs the detailed design,

engineering, testing and

expenditures, the tool

tryouts, assembly and

production. Approval of

the two major appearance

aspects of the vehicle, the

exterior (“sheet metal”)

and instrument panel is

scheduled to occur con-

currently at 36 months; all

other details follow. The

first set of prototype vehi-

cles, which embody initial

designs and are con-

structed with D

tools, are scheduled to

completed at 20-1/2 months

before Job #1, for initial

crash and durability test-

ing. Information resulting

from this testing will be

used to refine the design of

the vehicle. The set

of prototype vehicles also

constructed with refined

ype tools, and sched-

uled to be completed six

months later, will in-

corporate the design

e made in view of the

results of this testing. Test-

ing of this second set of

ype vehicles will be

used to validate the first

tests and also to test addi-

tional performance as

of the vehicles. A third set

of prototype vehicles,

— 1 y structure

produced by production

tools but otherwise

employing parts made by

re prototype tools, is

completed at about 8-3/4

months before Job #1. This

set is tested to ascertain

whether design modifica-

tions made in view of pre-

vious test results have

brought the vehicle per-

(3)

formance up to specifica-

tion. In this way the vehicle

design is gradually refined

to achieve all objectives.

All component parts must

be trial assembled into

vehicles (“functioned”), af-

ter being produced from

production tools, to ascer-

tain whether the designs

were properly executed

and whether all parts fit.

Because the translation

from engineering instruc-

tions te tooled parts may be

imperfect, some parts may

not fit and function proper-

ly the first time. Those

parts must be made to fit

and work cooperatively

with other vehicle parts by

revising design, tools,

parts fabrication processes

and/or vehicle assembly

processes. To provide ade-

uate time for this cut-and-

dry procedure, production

sample parts are scheduled

to become available seven

months prior to Job #1.

This “Functional Program”

is conducted at a pilot

plant. Production parts are

scheduled to be trial assem-

bled into vehicles two

months rr ob #1, *

program at the assembly

plants intended to familia-

rize plant personnel with

the assembly processes and

to test the feasibility of

those processes for mass

production. The actual Job

#1 date is established upon

satisfactory completion of

the sampling programs.

These principal steps of the current Ford Timing Standard

and the corresponding times for their initiation or completion,

as the case may be, are summarized in Exhibit III of this

Appendix.

EXHIBIT I

KEY ACTIVITY GROUPS AT FORD

and their principal activities

Activity

Planning

Advanced Engineering

There are a number of groups con-

cerned with predicting the kinds of

vehicles which will be attractive to

purchasers, preparing for M

ment consideration (with the aid of

numerous other Company activi-

ties — e. g., in market.

ing, finance, engineering and

procurement) a proposal

encompassing all aspects of each

such vehicle, e.g., its appearance,

features, dimensions, passenger

and luggage capacity, mileage

range, performance characteris-

ties, cost and potential market,

and, upon approval by Manage-

ment of each vehicle proposal,

guiding the development of the

vehicle to production.

This activity devises engineering

concepts to meet the vehicle para-

meters determined by a

activities, for example, front whee

drive or rear wheel drive, the type

of body construction, suspension

configurations, and power-train

configurations.

Component Engineering

Development

Engineering

Procurement

Basic Manufacturing

Divisions

Assemb'y Division

This activity is concerned with de-

veloping the appearance of vehi-

cles, and of most of their visible

components, which embody con-

cepts provided by the various

engineering activities and by plan-

ning. In the course of such develop-

ment, this activity sculpts full size

clay models of such cars and of

many of their components.

These activities are charged with

translating design and engineering

concepts into engineering informa-

tion required to manufacture com-

ponents and vehicles.

This engineering activity is con-

cerned with achieving over-all

vehicle and component perform-

ance to objectives of function, qual-

ity, and reliability—the “test

track” people.

These activities deal with the many

outside suppliers of component

parts, to translate component

engineering information (blueprint

drawings, die models, etc.) into

production parts.

These divisions of Ford —

some production parts; the nee

of these parts are made by outside

suppliers.

This activity initially trial-

assembles (“functions”) production

parts into pilot-production vehi-

cles, and after “prove-out” in pilot

production, assembles these parts

into mass production vehicles.

EXHIBIT II

FORD’S MAJOR CAR PROGRAMS

BY MODEL YEAR OF VEHICLE INTRODUCTION

1978 1978 1979 198 1981 1981% 1982

Fairmont/

Zephyr

Futura/Z7

Ford/Merc.

Mustang

Capri f

Lincoln

Mark

T- Bird XR

Pinto Escort

Bobcat Lynx

Granada

Cougar

EXP LN 7

Continental

EXHIBIT III

CURRENT SUMMARY OF FORD NORTH AMERICAN

AUTOMOTIVE OPERATIONS (dated 3/31/81)

Months Before

Step Job #1

Start Vehicle Concepts — vehicle size, 66

concepts in components explored e.g.

suspension, bumpers, brakes, weight

parameters

Start Advance Development — Start 54

clay development to prove out concepts

Complete Advanced Mechanical Pro- 43

totype — an operable vehicle to prove

out and develop suspension, structure,

and package (vehicle size)

Approve Structure Hardpoints/Select 38

Prime Program (Start of Production

Phase)

Approve Theme Clay Appearance — 36

Sheetmetal and Instrument Panel

Complete Production Mechanical Pro- 31

totype

Approve Program/Final Hardpoints 30

Complete First Prototype Level 20%

Complete Second Prototype Level 14%

Complete Third Prototype Level 8%

Complete Engineering 10

Provide Production Samples/Start 7

Functioning

* * * *

IN THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 81-2220

STATE FARM MUTUAL AUTOMOBILE

INSURANCE Co., et al.,

Petitioners,

DEPARTMENT OF TRANSPORTATION, et al.,

Respondents

No. 81-2221

NATIONAL ASSOCIATION OF INDEPENDENT

INSURERS, et al.,

Petitioners,

NATIONAL HIGHWAY TRAFFIC SAFETY

ADMINISTRATION, et al.,

Respondents

AFFIDAVIT

WILLIAM J. WITTENBERG, being duly sworn, deposes and

says:

1. I am Assistant Chief Engineer, Fisher Body Division,

General Motors Corporation (GM). I have been employed in

this capacity since May 1, 1979, and have been employed by GM

since June 1953. From February 1, 1978, to November 19,

1981, I was Project Manager of GM’s Automatic Belt Project

Center. The duties of this position included overall responsibil-

ity for design, development, and product release of automatic

belt restraint systems for GM passenger cars. As part of these

duties I was regularly called upon to establish and project lead

time requirements, and program content for the automatic

seat belt programs.

2. Iam familiar with the Court’s request for information on

the amount of time that would be required by automobile

manufacturers to redevelop automatic seat belt programs in

the event that the Court invalidates in whole or in part the

NHTSA’s rescission order issued on October 23, 1981.

3. In reaching the judgments expressed below I have made

three very important assumptions:

(a) Ifthe Court were to invalidate the rescission order,

the — py requirements of FMVSS 208 would

be identical to those in the standard prior to rescis-

sion. For example, i have not considered in this affi-

davit the substantial additional time that would be

required if FMVSS 208 were to be amended so as to

prohibit detachable automatic seat belts.

(b) The order of implementation of the automatic re-

straint requirements of FMVSS 208 would be the

same as existed at the time of rescission. Specifically,

I have assumed that FMVSS 208 would be effective

at the 2 ing of the same model year for all pas-

senger cars with a wheel base of more than 100 in.

ches, and at the beginning of the following model

year for all passenger cars with a wheel base of 100

inches or less.

(e) Outside engineering and tooling companies would be

available in the same proportion as before the rescis-

sion, and no significant work delays or stoppages

beyond our control would occur during the relevant

time periods.

4. I am aware that the petitioners have contended that some-

thing on the order of a 4-6 month lead time is sufficient to put

automatic seat belt programs into production. This contention

appears to be based on the presumption that the replacement

of current manual belts by automatic belts would simply be an

exchange of similar components, much as manufacturers were

able to “convert” to exclusive production of manual belts for

their large cars after the granting of the one-year delay in the

effective date of the passive restraint requirements for those

cars. This contention is not valid. Manual seat belts were

incorporated in all vehicle lines at the time the one year delay

was announced, so no “conversion” to manual seat belts was

necessary. Thus, the delay did not require GM to remove or

change any parts or components in its supply system or to

change or remove any tools or other equipment in its produc-

tion system.

Also, an automatic seat belt system that will meet the require-

ments of FMVSS 208 is more complex and much more difficult

to develop and manufacture than the current manual belt sys-

tem. For example, a typical vehicle restraint system utilizing

automatic seat belts contains approximately twice as many

component parts as one utilizing manual seat belts. This in-

creased complexity is apparent from a comparison of the re-

tractor hardware requirements for an automatic seat belt sys-

tem (See Attachment 1) and a manual seat belt system (See

Attachment 2). Moreover, manual belts represent existing

technology and have been in production in various forms for

many years. In contrast, automatic belt technology is still in a

development stage, and none of the automatic belt systems

that GM would use has ever been produced in quantity, or

installed on a mass production basis.

Finally, manual belt programs would be required even if auto-

matic restraint requirements were to be instituted. These

programs would be necessary to provide for foreign markets

where automatic seat belts are not required and in some cases,

such as Canada, restricted by applicable standard. The imposi-

tion of automatic belt requirements would necessitate the addi-

tion of 36 different seat belt system configurations for the nine

GM vehicle lines which would have required automatic belts in

the 1983 model year, resulting in the proliferation of approxi-

mately 2250 new parts. In addition, vehicle modifications

would be required to accommodate automatic belt attachment

and to facilitate automatic belt system operation. For example,

modifications would be necessary in the following vehicle

areas”

Front Door Assembly

Vehicle Interior Trim

Underbody Assembly

Front Seat Frames

th Carpe

Rall Absembly

obey Console

Center Pillar Assembly

Wiring Harnesses

Instrument Panels

Based on the above, it is apparent that a manufacturer’s ability

to “convert” to exclusive production of manual seat belts in six

months does not demonstrate the ability to develop, manufac-

ture, and incorporate automatic seat belt systems in the same

time frame.

5. The lead time required for GM to redevelop automatic seat

belt programs for its existing vehicle lines having wheel bases

greater than 100 inches would be 21 months. This projection

does not reflect the time required to complete any single auto-

matic seat belt program. Rather, it is based on the effort

required to complete design and development efforts on nine

vehicle lines, e.g., X cars, J cars. These vehicle lines encom-

pass 29 different models, e.g. Chevrolet Impala, Buick

LeSabre, Oldsmobile 88, utilizing 64 different body shells (2

door, 4 door, station wagons, where applicable). These efforts

would utilize reasonable business and resource allocation prac-

tices, and make maximum possible use of concurrent schedul-

ing.

Further, the projection reflects the fact that the redevelop-

ment of automatic restraint technology is not simply a con-

tinuation of previous efforts. Since the termination of our

automatic seat belt programs on October 23, 1981, technical

resources previously allocated to those programs, have been

allocated to other areas. Additionally, much of the hardware

used in that program has been diverted to other use or other-

wise disposed of. Finally, vendor contracts to engineer and

fabricate automatic seat belt tooling have been cancelled. Sig-

nificant efforts would be required to reinstate these activities

due to the magnitude of our overall program.

The above lead time projection for existing vehicle lines would

not be sufficient for future vehicle lines, i.e. those vehicles

scheduled to begin production in model years after 1983. Auto-

matic seat belt programs for future vehicles would not signifi-

cantly benefit from development programs in place prior to the

NHTSA rescission. At that time automatic seat belts for those

vehicles were in a preliminary stage of development. Thus, the

lead time would necessarily be longer.

Attachment 3 sets forth the necessary program elements upon

which this lead time projection is based. It should be noted that

many of these elements, which are described in the following

paragraphs, take place concurrently. Thus, they must be con-

sidered collectively in terms of overall program lead time.

Reassemble Engineering Technology (3 mo.) refers to the

effort necessary to reassemble both internal and external tech-

nical resources, including personnel, previously allocated to

the automatic belt programs. This category also includes time

to reestablish design, testing, hardware fabricating and tool-

ing facilities of outside suppliers. Before the rescission over

200 GM engineering personnel and a substantial number of

outside personnel were assigned to this project. This work

force must be reassembled in an orderly fashion so as to pre-

clude extensive disruption of other essential functions.

Evaluate Design Status (4 mo.) reflects the time that would be

necessary to review the design status of each particular body

style as it existed when the automatic seat belt project was

terminated. Engineering data would have to be retrieved from

storage areas, or data banks, and evaluated for design content

and completeness. This would necessitate the review of

thousands of design and test documents. Further, an evalua-

tion would be required of revisions made to any of the 29

vehicle models since the rescission which could affect the auto-

matic belt design.

Finalize System Design (4 mo.) is the effort required to update

and complete the design. This would include any necessary belt

system and vehicle modifications due to product revisions, and

analysis of test data. It also includes finalizing and releasing

Obtain Verification Cars (2 mo.) refers to the time necessary

to obtain approximately 145 production or prototype vehicles

for verification and certification barrier tests. The vehicles

originally obtained for this purpose have been sold or reallo-

cated for other test purposes. Each of the vehicles obtained

would have to be modified to incorporate automatic belts.

Pre-Prototype Retractor and Hardware Fabrication (3 mo.)

— These items are early versions that are hand made and may

not be fully functional, but are used for testing purposes.

Build Sled Test Body Fixtures (4 mo.) — Sled test body

fixtures are basically the passenger compartments of produc-

tion or prototype vehicles modified so they can be mounted ona

pneumatic sled that simulates a crash impact. These tests are

then analyzed and are an important tool in the development of

proper restraint performance and component design.

Retractor and Hardware Prototype (3.5 mo.) are necessary for

the fabrication of limited quantities of retractor and other

hardware items to production type configurations for test and

evaluation purposes. Sources for many of these tools would

have to be ebtained outside of GM.

Prototype Retractor and Hardware Build (9 mo.) is the effort

necessary to produce limited quantities of hand built seat belt

hardware for component impact sled and barrier testing.

These first production type items are also used to make prelim-

inary vehicle installations of automatic seat belt systems for

evaluation purposes. Information from these evaluations is

used to finalize system designs, as described above.

Release all Components (5 mo.) reflects the documentation

effort to identify individual parts and authorize them for use on

a particular design. This process also authorizes plants and

vendors to take necessary action for planning floor space, and

taking related actions.

Production Tools—Retractor and Hardware (9 mo.) and

Production Tools—Vehicle Interior Trim, Seats, Console (12

mo.) are the activities required to build the tools, dies, and

fixtures necessary for the manufacture of mass production

parts at 11 metal fabricating plants, 11 trim and hardware

fabricating plants, and 7 outside facilities designated to manu-

facture retractor assemblies. This also includes the process of

assuring that the tools, as fabricated, will perform their neces-

sary functions.

Development Sled Tests (3 mo.) are performed to finalize and

optimize individual components so that they will meet all appli-

cable performance and hardware requirements. These tests,

utilizing components fabricated from prototype tooling, are

perfo ned on the sled test body fixtures described above.

Verification Sled Tests (6 mo.) are automatic seat belt system

tests using components made to production configurations.

These tests are utilized to assure that the performance of the

system conforms to design intent.

Verification Barrier Tests (9 mo.) consist of crash tests utiliz-

ing the verification cars described above. The tests are con-

ducted to supplement verification sled tests and to assure that

the performance of the automatic seat belt system and its

influence on other vehicle components are compatible with and

conform to design intent.

Certification Barrier Tests (2 mo.) are barrier tests run to

demonstrate compliance of production vehicles with the re-

quirements of all applicable Federai motor vehicle safety

standards.

Body Pilot Build (3 mo.) — The start of body pilot is a most

important landmark in the manufacturing of our automotive

body. The body pilot is the first assemby of bodies using all

production type components in very limited quantities by

specially qualified personne! at facilities maintained for this

purpose prior to the start of mass production. The main pur-

pose is to uncover any tooling or assembly methods that do not

function properly or produce quality parts or assemblies

effectively. We would require approximately 3 months be-

tween the start of body pilot and the start of production to

correct any discrepancies found during the pilot program and

to stock 23 assembly plants with component parts.

6. The changes required to incorporate 36 automatic belt

systems in the nine vehicle lines discussed in paragraph 5

above are so substantial that they could not be reasonably

accomplished during production. These nine vehicle lines con-

stitute GM’s entire passenger car production, with the excep-

tion of three sub-compact models. As described in paragraph 3

above, the imposition of an automatic seat belt requirement

would result in greatly increased complexity in the manufac-

turing process, and in a massive proliferation of parts. Thus,

the changeover would require a complete shutdown of our 23

assembly plants for those vehicles for a minimum of three

weeks, and could only be accomplished during a scheduled

“shutdown period” for a regular model year changeover pro-

gram without extensive disruption of production.

/s/ WILLIAM J. WITTENBERG

William J. Wittenberg

STATE OF MICHIGAN

COUNTY OF MACOMB

Before me this 28 day of January, 1982, appeared William J.

Wittenberg, known to me to be the person whose signature

appears above, and subscribed and sworn to the above affida-

vit, consisting of eight pages.

% DONALD J. CASTLE

Donald J. Castle

Notary Public

Macomb County, Michigan

My Commission expires 3-25-84.

* * * *

IN THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 81-2220

STaTE FARM MUTUAL AUTOMOBILE

INSURANCE Co., et. al.,

Petitioners,

DEPARTMENT OF TRANSPORTATION, ef al.,

Respondents.

No. 81-2221

NATIONAL ASSOCIATION OF INDEPENDENT INSURERS, et al.,

Petitioners,

NATIONAL HIGHWAY TRAFFIC SAFETY ADMINISTRATION,

Respondent.

NHTSA’S MEMORANDUM IN RESPONSE

TO THE COURT'S AUGUST 4, 1982 ORDER

By order of August 4, 1982, this Court directed NHTSA to

advise the Court by October 1, 1982, whether a September 1,

1983 “compliance date,” for the passive restraint requirements

of Federal Motor Vehicle Safety Standard 208, “is achievable,

or whether a longer period is required, setting forth adequate

reasons therefor.” This memorandum constitutes NHTSA’s

response to the Court’s inquiry. It is filed solely in response to

the Court’s directive, and without prejudice to the Agency’s

right to seek review of the Court’s June 1, 1982 opinion and

August 4, 1982 order, or to proceed administratively to modify

either the substantive requirements or compliance dates of

Standard 208, if such modifications are determined to be neces-

sary. For the reasons stated herein, and the attachments here-

to, NHTSA advises the Court that should its opinion and

supplemental order withstand Supreme Court review, a

September 1, 1983 compliance date is not achievable, and that

a significantly longer period than the thirteen months provided

by this Court would be required for practicable compliance.

NHTSA has not yet conducted the necessary rulemaking to

amend the effective date of Modified Standard 208. Should the

Supreme Court of the United States deny respondents’ Peti-

tion for a Writ of Certiorari already filed in this case, it would

be necessary for NHTSA to conduct a rulemaking proceeding

to consider technical amendments to the Standard before it

could take effect, and to provide a practicable compliance date.

I. ASEPTEMBER 1, 1983 COMPLIANCE DATE FOR THE

PASSIVE RESTRAINT REQUIREMENTS OF MOD.-

IFIED STANDARD 208 IS NOT ACHIEVABLE—A SUB-

STANTIALLY LONGER PERIOD IS REQUIRED

Promptly after this Court’s August 4th order, NHTSA, on

August 9, 1982, requested current information concerning the

ability of manufacturers to comply with the September 1, 1983

effective date, and the consequences to them if this compliance

date remains in effect. Attached to this memorandum are

affidavits and letters, furnished NHTSA in response to its

request, from 19 automobile manufacturers accounting for ap-

proximately 98 percent of all vehicles sold in this country.

None of the manufacturers has stated that it would be able to

comply with the reinstated automatic restraint requirement on

September 1, 1983. Only Volkswagen of America and Toyota

have represented that they might partially comply, but this

compliance would be possible only with respect to vehicles

which are already in car lines equipped with automatic belts, or

where automatic belts are presently offered as an option. (See

VW Haenchen Statement at 2; Toyota letter at 4.) Some major

manufacturers estimate that a lead time of 21 to 24 months

would be required for those models which could be converted

to automatic restraints most easily. (See, e.g., General Motors

Horvath Affidavit at 2; Ford Ross Affidavit at 2; Chrysler

letter at 1; Nissan letter at 1; Toyota letter at 4; American

Motors Jones Supplemental Affidavit at 1; Mitsubishi letter at

2.) Almost all manufacturers also state, however, that for

many of their models compliance will not be possible until

September 1985, and, in a few instances, even later. (See, e. g.,

Subaru letter at 1; Toyota letter at 4; Isuzu letter at 1; Mazda

letter at 1; Mitsubishi letter at 2; Rolls-Royce letter at 2;

American Motors Jones Supplemental Affidavit at 1; Chrysler

letter at 1.) Only the largest domestic and Japanese manufac-

turers, General Motors and Nissan, and two European manu-

facturers, Volvo and BMW, have said that a compliance date of

September 1984 could enable them to continue marketing

many of their models. (See BMW letter at 2; General Motors

letter at 1; Volvo letter at 1; Nissan letter at 1.) Virtually all of

these estimates are specifically premised on the assumption

that Modified Standard 208 will not be amended (see, e.g.,

General Motors letter at 1; Ford Ross Affidavit at 2; Chrysler

Withrow Affidavit at 15; Toyota letter at 1; Mitsubishi letter at

2; Subaru letter at 1), and many on other assumptions dis-

cussed below.

As a group, the manufacturers cited numerous credible

reasons why a September 1, 1983 compliance date is not

achievable, and why the longer lead times specified are re-

quired.

First, a September 1, 1983 compliance date is particularly

inappropriate for cars with a wheel base of less than 100 inches,

sales of which constitute approximately 41 percent of current

production. Under Modified Standard 208 as originally

adopted in 1977, passive restraints were sot required in small

cars until September 1, 1983. However, Modified Standard 208

stood rescinded for almost i year, and, at least as of December

7, 1981, when this Court denied a stay of NHTSA’s rescission

of the passive restraint requirements of Modified Standard

208, manufacturers were fully justified in abandoning their

passive restraint programs. Yet, notwithstanding that justifi-

able reliance by manufacturers, this Court’s Augus* 4th order

would nonetheless require passive restraints in small c by

the same date as originally proposed.

Second, for both small and large cars, the passive restraint

programs are not at the same point of development as they

were when the manufacturers justifiably halted their pro-

grams. Because of the rescission, and this Court’s denial of a

stay, resources committed to automatic restraint compliance

were properly diverted to other projects. (See, e.g., Saab

letter at 1; Jaguar letter at 2; Chrysler Withrow Affidavit at 3;

Ford letter at 2.) Most significant in this process was the

reassignment or release of skilled employees assigned to de-

sign teams—the reassembly of which is time-consuming, and

made difficult by the present non-availability of some of those

employees. (See, e.g., General Motors letter at 2; Ford letter at

1-2; Chrysler Withrow Affidavit at 3-4; Saab letter at 1; Subaru

letter at 1; Volvo letter at 2.) In any event, while changes in the

design of various model lines went forward, the corresponding

development of passive restraint systems to fit those rede-

signed models remained halted. (See, e.g., Chrysler Withrow

Affidavit at 5; Toyota letter at 3; Mazda letter at 1; VW Haen-

chen Statement at 3; Honda letter at 1; Jaguar letter at 2.)

Third, even after reassembly of the design team, the design

problems for automatic restraint systems remain substantial.

Separate and distinct automatic restraint system designs are

required for different models within car lines. General Motors,

for example, expected to design 36 different automatic seat

belt configurations for its nine different car lines. (See Exhibit

E to Brief of AVMA and AIA filed in this Court on February 1,

1982.) (See also Chrysler Withrow Affidavit at 5-8; Toyota

letter at 3; Miisubishi letter at 1.) Moreover, the redesign

problems are not limited to a narrow portion of the vehicle

interior. Vehicle parts and systems which might undergo rede-

sign include the following: front door assembly, vehicle interior

trim, underbody assembly, front seat frames, vehicle carpert-

ing, roof rail assembly, wiring harness, instrument panels and

others. (See, e.g., Chrysler Withrow Affidavit at 7-8; Toyota

letter at 2.)

Fourth, all phases of the design, development, testing and

production of automatic restraint systems cannot occur

simultaneously—necessarily a sequence of time consuming

steps must be completed by the manufacturers. Even after

reassembly of the design team and the updating of design work

to fit current models, numerous steps remain to be followed—

none of which may be safely eliminated or advanced in the

schedule. These steps include designing prototypes, obtaining

prototypes, testing prototypes, designing final systems,

obtaining finally designed parts, testing finally designed parts,

obtaining certification, ordering parts, and retooling and con-

verting production lines. (See, e.g., General Motors Horvath

Affidavit at 2-5; Ford letter at 1; Exhibit B to Chrysler With-

row Affidavit.)

Fifth, an early simultaneous compliance date for all models

could exacerbate the renegotiation of contracts between the

manufacturers and the limited number of passive restraint

parts suppliers, as well as adversely affect those suppliers’

delivery schedules. (See, e.g., General Motors letter at 2; Vol-

vo letter at 2; Jaguar letter at 2.) This problem may be aggra-

vated for small manufacturers who are not equipped to

simultaneously design, test, and produce different systems for

different models (See, e.g., Isuzu letter at 1; Saab letter at 1.)

Further, an organization of active and passive belt manufac-

turers has informed NHTSA that its members need approxi-

mately nine months from the submission of final designs by the

manufacturers in order to begin supplying restraint systems,

and that as of September 3, 1982 they had not received those

designs. (See Am. Seat Belt Council letter.)

Sixth, compliance with the passive restraint standard,

especially early complaince, extracts a high cost from the man-

ufacturers. General Motors has, in its most recent submission,

estimated its costs at $375 million (General Motors letter at 2);

Ford has estimated costs of as much as $280 million (Ford letter

at 2); and Chrysler’s estimate is $100 million (Chrysler Steffen

Affidavit at 3). Early compliance will require the diversion of

resources and personnel from other programs, such as those

for increased fuel efficiency and safety, at a cost to the manu-

facturer and the consumer. (See, e.g., Chrysler letter at 1;

Chrysler Withrow Affidavit at 14-15; Ford letter at 2.) More-

over, since the conversion of production lines in order to begin

compliance can only be accomplished when tie assembly plants

are entirely shut down, the conversion shouid be scheduled to

coincide with the start of a model year. A mid-model year

shutdown would cause substantial loss of production and em-

ployment and therefore would be extremely costly to manufac-

turers and their employees. (See, e.g., General Motors letter at

1; Mazda letter at 2; Chrysler Withrow Affidavit at 11-12.)

Finally, if the September 1, 1983 compliance date remains in

effect, manufacturers unable to comply would be required to

cease production until compliance could be attained. (15

U.S.C. §§ 1397, 1387.) To virtually all manufacturers the re-

sults of such disruption would be catastrophic. (See, e.g.,

General Motors letter at 2; Ford Ross Affidavit at 4; Toyota

letter at 4; Rolls-Royce letter at 1; Subaru letter at 3.) Chrysler

has said that it could not survive as a corporation in such event.

(Chrysler letter at 1; Chrysler Steffen Affidavit at 2.)

The submissions of the manufacturers have been reviewed

by the expert technical staff of the National Highway Traffic

Safety Administration. Based upon these submissions, and the

record before the agency, NHTSA is of the opinion that the

manufacturers have demonstrated convincingly that a

September 1983 compliance date is inipossi ie, and that the

lead time estimates of the manufacturers ar2 generally valid,

accurate, and consistent with the engineering and economic

circumstances which the agency finds to prevail in the industry

at the present time. See Affidavit of Courtney M. Price,

Associate Administrator for Rulemaking of NHTSA.

Il. NHTSA, AND NOT THIS COURT, IS STATUTORILY

EMPOWERED TO ESTABLISH A NEW EFFECTIVE

DATE FOR MODIFIED STANDARD 208.

As Part I demonstrates, compliance by September 1, 1983 is

not achievable. Although NHTSA received substantial com-

ments from the manufacturers on the achievability of a

September 1, 1983 compliance date, it cannot, of course,

formally establish a new compliance date for Modified Stand-

ard 208 without conducting a rulemaking proceeding pursuant

to the APA. Based on the manufacturers’ submissions and the

record to date, however, NHTSA hereby advises the Court

that practicable compliance with Modified Standard 208 could

not be achieved before September 1, 195 at the earliest.

This Court should not attempt to prescribe a new effective

date for implementation of Modified Standard 208. As the

Solicitor General has argued to the Supreme Court, “[iJt is for

the Secretary, not the court, to determine in the first instance

whether and when Modified Standard 208 should go into effect

in light of existing circumstances. This determination then

would be subject to judicial review only under the arbitrary

*There remains considerable doubt that uniform compliance could

easily be achieved even in September of 1985. While some manufac-

turers assert that, under ideal conditions, compliance could begin for

some car lines from 21 to 24 months after a final order, or theoretical-

ly as early as September of 1984 if the standard remains unchanged

from its present form (see, e.g., General Motors letter at 1), others

have found that more than 36 months would be required in any event

for some or all models. For such manufacturers (see Saab letter at 1;

VW Haenchen Statement at 3), sale of such cars would be impossible

even in September 1985. The basis for NHTSA’s opinion that practic-

able compliance could not occur before September 1985 is that a

model year start date (i.e., September of any given year) is necessary

and that any such date earlier than 1985 would preclude most if not all

manufacturers from producing major car lines. Such a result would

jeopardize the existence or economic integrity of several manufactur-

ers, (see, e.g., Chrysler letter at 1; Ford Ross Affidavit at 4).

and capricious standard. Once the court of appeals identified

errors in the agency’s decision, the court was barred from

further ‘dictating to the agency the methods, procedures, and

time dimensions of the needed inquiry and ordering the results

to be reported to the court without opportunity for further

consideration on the basis of the new evidence by the agency.’

Vermont Yankee Nuclear Power Corp. v. NRDC, supra, 435

U.S. at 544-545, quoting FPC v. Transcontinental Gas Pipe

Line Corp., 423 U.S. 326, 333 (1976).” See Petition for a Writ of

Certiorari, U.S. Department of Transportation, et al. v. State

Farm Mutual Automobile Ins. Co., et al., No. 82-398 at 27-28

(filed September 8, 1982).

If the Supreme Court denies the Petition for a Writ of

Certiorari filed by the Secretary, it will be time enough then

for NHTSA to promptly conduct a rulemaking to consider new

evidence from the manufacturers and other interested parties,

and to provide a new effective date for Modified Standard 208.

In any event, before the Standard could take effect, further

rulemaking would be necessary to address various technical

amendments to the Standard, such as the requirement for

passive protection for the front center seating position, (see 46

Fed. Reg. 21,205 (April 9, 1981) and 46 Fed. Reg. 53,419 (Oct.

29, 1981) —a proposed amendment to the Standard which was

pending before the Agency, but mooted by its decision to

rescind. Any amendrients to the Standard will change the

obligations imposed on the manufacturers by this Court’s Au-

gust 4, 1982 order reinstating Modified Standard 208, and

might require readjustment of the necessary lead time for

compliance.

If the Petition for a Writ of Certiorari is granted there would

be at that time compelling grounds for a stay of this Court’s

June Ist and August 4th orders. It would not be “practicable”

or “reasonable” under the Safety Act (15 U.S.C. § 1392), to

require manufacturers to begin compliance with a standard—

that might yet be amended—which NHTSA believes it had

lawfully rescinded, and the judicial reinstatement of which the

Supreme Court had just agreed to review.

CONCLUSION

For the foregoing reason NHTSA concludes that a Septem-

ber 1, 1983 compliance date is not achievable, and that a sub-

stantially longer lead time is required.

Respectfully submitted,

OF COUNSEL: J. PauL McGRaTH

FRANK BERNDT Assistant Attorney General

Chief Counsel /s/ Robert E. Kopp

STEPHEN P. Woop Rospert E. Kopp (202) 633-3311

Assistant Chief Counsel Director, Appellate Staff

Davip W. ALLEN /s/ Michael F. Hertz

Assistant Chief Counsel MicHaEL F. HERTZ (202) 633-3180

Hucu F. Oates Appellate Litigation Counsel

EILEEN T. LEAHY /s/ Frederick Geilfuss

SHIRLEY RANSOM FREDERICK GUILFUSS (202) 633-5684

Attorneys Attorney

National Highway Traffic Civil Division

Safety Administration Appellate Staff, Rm. 3617

Department of Transportation Department of Justice

Washington, D.C. 20590 Washington, D.C. 20530

IN THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 81-2220

StaTe Farm MuTuAL AUTOMOBILE

INSURANCE Co., et. al.,

Petitioners,

DEPARTMENT OF TRANSPORTATION, ef al.,

Respondents.

No. 81-222,

NATIONAL ASSOCIATION OF INDEPENDENT INSURERS, et ul.,

Petitioners,

NATIONAL HIGHWAY TRAFFIC SAFETY ADMINISTRATION,

Respondent.

AFFIDAVIT OF COURTNEY M. PRICE

Courtney M. Price, being first duly sworn, deposes and says:

1. I am Associate Administrator for Rulemaking of the

National Highway Traffic Safety Administration (NHTSA).

2. As Associate Administrator for Rulemaking, I am re-

sponsible for administering the NHTSA programs for setting

standards under the various statutes administered by

NHTSA, including Federal motor vehicle safety standards

established under the National Traffic and Motor Vehicle Safe-

ty Act of 1966 as amended (the Safety Act). Federal Motor

Vehicle Safety Standard 208, Occupant Crash Protection, is

such a standard. The Rulemaking component of NHTSA re-

views and evaluates submissions of manufacturers concerning

lead times for compliance with standards, and provides techni-

cal, expert support for lead time decisions pursuant to Section

10g(e) of the Safety Act. :

3. I am familiar with the history and record of FMVSS 208

and with these proceedings for judicial review of the October

23, 1981 order of the Administrator rescinding the automatic

restraint requirements thereof. I have reviewed the sub-

missions of motor vehicle manufacturers to this Court and to

NHTSA concerning the lead time questions which have been

raised herein.

4. The subject of lead time was addressed by participants

in the original rulemaking proceeding, because of the phase-in

nature of such requirements as originally adopted (compliance

requirement by size and type of vehicles for model years 1982

to 1984). This issue was also addressed in affidavits and a letter

submitted on behalf of manufacturers with the joint brief of

Intervenors Motor Vehicle Manufacturers Association and

Automobile Importers Association, filed in this judicial review

action, in February 1982.

5. After this Court entered its order of August 4, 1982,

effecting reinstatement of such requirements with an effective

date of compliance for all cars of September 1, 1983, the

NHTSA Chief Counsel, Mr. Frank Berndt, sent letters to

counsel for such intervenors requesting current information on

the manufacturers’ ability to comply with the reinstated

requirement on or before September 1, 1983. Mr. Berndt’s

letter also requested manufacturers to describe the con-

sequences to them if the September 1, 1983 compliance date

were retained. NHTSA received written responses from nine-

teen manufacturers whose production accounts for approxi-

mately 98 percent of all new cars sold in the United States.

6. I and members of my staff have reviewed and analyzed

these responses. All manufacturers have stated that they are

unable to comply with the automatic restraint requirement on

or before September 1, 1983. In fact, only Volkswagen and

Toyota have said that they could partially comply on this date,

and their partial compliance would involve only those car lines

in which automatic restraints were already available as stand-

ard equipment or as an option. Some manufacturers have said

that, if all contingencies were favorable, compliance would be

theoretically possible for those car lines as to which prior

design and engineering of automatic restraints had been

underway, approximately two years after a final decision

establishing the requirement. Most have also said that, for

other more recently developed or planned car lines, compliance

would not be possible until at least one year later. Because the

compliance date for vehicles having less than 100-inch wheel

bases was September 1, 1983 prior to rescission in October

1981, the reinstatement of the same simultaneous compliance

date after almost one year of discontinued compliance efforts

has the effect of significantly reducing the time for compliance

in these smaller car lines. Cars under 100 inches in wheel base

constitute approximately 41% of all cars sold in the United

States.

7. The passive restraint programs are not at the same

point of development as they were when the maufacturers

halted their programs. After recission of the passive restraint

requirements of Modified Standard 208, resources committed

to automatic restraint compliance were diverted to other proj-

ects. Skilled employees assigned to design teams have been

reassigned or released and may not be readily available.

8. After reorganization of the design teams, a time con-

suming effort must be completed by these teams before other

automatic restraint system designs are required for different

models within car lines. General Motors, for example, ex-

pected to design 36 different automatic seat belt configurations

for its nine different car lines. Vehicle parts and systems which

might undergo redesign include the following: front door as-

sembly, vehicle interior trim, underbody assembly, front seat

frames, vehicle carpeting, roof rail assembly, wiring harness,

instrument panels and others.

9. In addition, all phases of the design, development, test-

ing and production of automatic restraint systems cannot occur

simultaneously. A sequence of time consuming steps must be

completed by the manufacturer, and none of these steps can be

eliminated or advanced in the schedule. These steps include

designing prototypes, obtaining prototypes, testing pro-

totypes, designing final systems, obtaining finally designed

parts, testing finally designed parts, obtaining certification,

ordering parts, and retooling and converting production lines.

10. An early simultaneous compliance date for all models

could exacerbate the renegotiation of contracts between the

manufacturers and the limited number of passive restraint

parts suppliers, as well as adversely affect those suppliers’

delivery schedules. This problem may be aggravated for small

manufacturers who are not equipped to design, test, and pro-

duce different systems for different models simultaneously.

Indeed, an organization of active and passive belt manufactur-

ers has informed NHTSA that its members need approximate-

ly nine months from the submission of final designs by the

manufacturers in order to begin supplying systems, and that as

of September 3, 1982 they had not received any such designs.

(See Am. Seat Belt Council letter.)

11. Early compliance will require the diversion of re-

sources and personnel from other programs, such as those for

increased fuel efficiency and safety, at a cost to the manufac-

turer and the consumer. Moreover, since the conversion of

production lines in order to begin compliance can only be

accomplished when the assembly plants are entirely shut

down, the conversion should be scheduled to coincide with the

start of a model year. A mid-model year shut-down would

cause substantial loss of production and employment and

therefore be extremely costly to manufacturers and their em-

ployees.

12. Compliance with the passive restraint standard,

especially early compliance, extracts a high cost from the man-

ufacturers. General Motors has, in its most recent submission,

estimated its costs at $375 million; Ford has estimated costs of

as much as $280 million; and Chrysler’s estimate is $100 mil-

lion.

13. Finally, if the September 1, 1983 compliance date re-

mains in effect, manufacturers unable to comply would be

required to cease production until compliance could be

attained, in order to avoid production and sale of nonconform-

ing vehicles in violation of the Safety Act. To virtually all

manufacturers the results of such disruption would have great

adverse consequences. General Motors has predicte d that such

consequences would be catastrophic, and we believe that this

would be true of nearly all manufacturers. Chrysler has said

that it could not survive as a corporation if the losses caused by

such disruption were to occur.

14. The submissions of the manufacturers have been re-

viewed by the expert technical staff under my supervision.

Based upon these submissions, and the record before the agen-

cy, it is my conclusion and that of our technical staff that the

manufacturers have demonstrated convincingly that a

September 1983 compliance date is impossible, and that the

lead time estimates of the manufacturers are generally valid,

accurate and consistent with the engineering practices and

economic circumstances which prevail in the industry at the

present time.

I have read the foregoing 14 paragraphs. The statements

contained therein are true and correct to the best of my knowl-

edge.

/s/ Courtney M. Price

CourTNEY M. PRICE

Associate Administrator

for Rulemaking

Subscribed and sworn before me

this 30th day of September 1982

/s/ Stanley C. Feldman

STANLEY C. FELDMAN

Notary Public

My commission Expires on

December 14, 1982

IN THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 81-2220

STATE FARM MUTUAL AUTOMOBILE

INSURANCE Co., et. al.,

Petitioners,

DEPARTMENT OF TRANSPORTATION, et ul.,

Respondents.

No. 81-2221

NATIONAL ASSOCIATION OF INDEPENDENT INSURERS, et al.,

Petitioners,

NATIONAL HIGHWAY TRAFFIC SAFETY ADMINISTRATION,

Respondent.

STATE FARM’S MEMORANDUM IN RESPONSE TO

NHTSA’S COMMENTS ON THE SEPTEMBER 1983

EFFECTIVE DATE

Petitioners State Farm Mutual Automobile Insurance Com-

pany et al. (“State Farm”) respectfully submit this memoran-

dum in response to the National Highway Traffic Safety

Administration's (“NHTSA”) Octcber 1, 1982 memorandum to

this Court. In that submission, NHTSA contends that com-

pliance with the passive restraint requirement as of Septem-

ber 1983 is not feasible and that the agency, not this Court,

should determine when the reinstated standard will take ef-

fect.

State Farm suggests that the Court withhold ruling on

NHTSA’s request for delay, pending the Supreme Court's

disposition of the petitions for writs of certiorari in this case.

When this Court does address NHTSA's request, State Farm

submits that, based upon the present record, it should decline

to postpone reinstatement of the rule beyond September 1983.

I. THE COURT SHOULD NOT MODIFY ITS ORDER UN-

TIL THE SUPREME COURT DISPOSES OF THE PETI-

TIONS FOR WRITS OF CERTIORARI

The respondents and several intervenors in this case have

petitioned the Supreme Court for writs of certiorari. State

Farm is filing its brief in opposition today, and the Court can be

expected to rule within a month. NHTSA requests that, after

the Supreme Court has ruled on those petitions, the agency

should be allowed to set a new effective date for implementa-

tion of the passive restraint rule. Like NHTSA, State Farm

believes that the present effective date of the passive restraint

rule should not be reevaiuated until the Supreme Court has

disposed of the certiorari petitions. A denial of certiorari will

assuage the automakers’ concern that their efforts will be

wasted if the agency’s rescission is upheld. If, on the other

hand, the petitions are granted, then NHTSA has indicated

that it will seek to stay this Court’s rulings in their entirety. A

decision now as to the standard’s effective date would

effectively be nullified if a stay were granted. In either case,

therefore, the more efficient course is for this Court to with-

hold its decision on NHTSA’s requests for delay until the

Supreme Court has disposed of the certiorari petitions.

State Farm submits that the effective date of the reinstated

rule should be determined by this Court, not by NHTSA.

NHTSA’s insistence that it should set a new effective date for

the passive restraint rule rests upon a fundamental usunder-

standing of the Court’s August 4 order. That order did not

direct NHTSA to adopt a passive restraint requirement with a

September 1983 effective date. Rather, once NHTSA’s rescis-

sion of the rule was reversed, the rule was automatically rein-

stated as it had stood prior to the unlawful rescission. In

recognition of the fact that immediate compliance was impossi-

ble, the Court stayed enforcement of the rule until September

1983.

NHTSA’s argument would make sense if the decision re-

viewed by this Court had been one postponing the effective

date of the passive restraint rule; the appropriate remedy in

that situation, following reversal, would have been a remand to

NHTSA for redetermination of the effective Cate. Here, by

contrast, the issue is equitable effectuation of the Court’s

decree restoring the status quo ante litem; the arbiter of that

decision should be the Court itself, not the losing party.

II. THE COURT SHOULD REJECT ANY ADDITIONAL

DELAY BEYOND SEPTEMBER 1983

A person unfamiliar with the twelve-year history of Motor

Vehicle Safety Standard 208 would surmise from NHTSA’s

memorandum that on August 4, 1983, the passive restraint

requirement sprang, like Athena, fullblown from the head of

Zeus. That is not the case. The motor vehicle manufacturers

have been preparing to install automatic seat belts since 1977.

When NHTSA postponed the rule in April 1981, the manufac-

turers were preparing to comply by September 1981—a dead-

line less than five months away. Yet NHTSA would now have

this Court believe that it would take automakers three years,

or even longer, to comply with the reinstated standard.

Based upon the present record, the Court should decline to

postpone the effective date of the passive restraint rule beyond

September 1983. the delay in implementation has already been

excessive, and the manufacturers’ prophecies of doom are not

credible.

A. Implementation Has Already Been Delayed Excessive-

This Court is familiar with the delays that have plagued the

passive restraint rule since the start of rulemaking proceed-

ings in 1969. Despite those delays, compliance with the rule

was at last at hand when NHTSA suddenly postponed the

standard on the eve of Model Year 1982 production. NHTSA’s

April 1981 order pushed back the commencement of implemen-

tation from September 1981 to September 1982. And

NHTSA’s subsequent unlawful rescission of the rule has

already resulted in an additional one-year delay in compliance

with respect to large- and intermediate-sized cars. In response

to this Court’s finding that NHTSA acted unlawfully in

rescinding the passive restraint rule entirely, NHTSA now

seeks to achieve virtually the same result by postponing the

effectiveness of the rule from Model Year 1983 to Model Year

1986 or beyond.

Such a delay would be tragically costly in terms of lives lost

and injuries suffered. In seeking additional years before it

enforces the passive restraint rule, NHTSA has ignored

completely the human and economic consequences of further

delay. As Professor William D. Nordhaus explained in an

affidavit already filed in this case, each year of delay in imple-

mentation will result in 6,400 deaths and 120,000 moderate-to-

critical injuries that would have been avoided had passive

restraints been in place. Each year of delay will result in net

economic injury to the nation (beyond the countervailing costs

to the automakers) of $2.4 billion. Nordhaus Affidavit, 73

{attached to State Farm’s Memorandum in Support of Motion

for a Stay as App. B]. For the convenience of the Court, a copy

of the Nordhaus Affidavit is attached hereto.

These are factors that NHTSA, despite its safety mandate,

has ignored, but that this Court should weigh against the

asserted burdens of complying with the passive restraint rule

by September 1983. Implementation of the passive restraint

rule is not simply a question of flow charts and sled tests: it is

also a question of death, injury, and massive economic loss.

This Court should not tolerate additional delay beyond that

already caused by NHTSA’s unlawful rescission of the stand-

ard.

B. The Court Should Reject The Manufacturers’ Lead-

Time Estimates

The motor vehicle manufacturers’ prophecies of doom should

not be surprising. At every turn in the history of the passive

restraint rule, the automakers have warned of their absolute

inability to comply with whichever deadline approached. But

as NHTSA itself recognized a decade ago, the manufacturers’

lead-time estimates are based upon “some funding level which

they do not plan to exceed”: “[wJhen a company says they

cannot meet [a target date]... they are really saying they

cannot meet this date within the funds they have chosen to

allocate to thle] program.” C.D. Ferguson, Director of DOT

Office of Crashworthiness, NHTSA, Memorandum to the

Docket (June 24, 1971). That observation is wholly applicable

here: the automakers have established not that installation of

passive restraints is impossible by September 1983, but only

that it would cost more than they care to expend.

In assessing the automakers’ lead-time estimates, the Court

should bear in mind the Justice Department’s previous

observation in defending the passive restraint rule that this

case involves “something as simple as seat belts.” Brief for the

Department of Justice, at 64, Chrysler Corp. v. DOT, 472 F. 2d

659 (6th Cir. 1972). NHTSA’s assertion that implementation

could not occur for three or more years is simply incredible.

Ford and General Motors have stated, for example, that the

normal lead time for completely new vehicles is only three to

three and one-half years. See Geschelin, Lead Time Practices,

Automotive Industries (July 15, 1967), at 60-62. Cf. Childs

Affidavit (Ford), App. at 5 [attached to MVMA Brief as Ex. C]

(development period for new exterior body is 38 months; devel-

opment period for entirely new vehicle is 5% years). The auto-

makers’ details as to the number of individual parts involved or

the number of tests that occur should not be allowed to make

the process appear more complicated than it actually is.

This is not a case of technology-forcing. The automakers may

comply with the rule by installing detachable seat belts—the

very devices that they claim to prefer. The manufacturers

have been preparing to install automatic seat belts since 1977.

When NHTSA postponed the rule in April 1981, the automak-

ers were only five months away from actual compliance. Yet

they now propose elaborate research, development, and test-

ing programs as if these years of preparation had never oc-

curred and as if the installation of automatic seat belts were

comparable to the design and building of an entire automobile.

To the extent that the manufacturers cannot simply restart

the programs as they stood at the time of rescission, that

inability is largely self-inflicted. The automakers began to

dismantle their passive restraint programs within hours of the

announcement of rescission—many weeks before the rescis-

sion order was scheduled to take effect.* See State Farm

Mutual Automobile Insurance Co. v. DOT, 680 F. 2d 206, 241

& n.45 (D.C. Cir. 1982) (hereinafter cited as “State Farm”). It

now appears that some automakers did not merely scatter the

expert employees involved: they “scrapped” or “dispersed” the

prototypes, molds, and tools used in the programs. See e.g.,

Whittenberg Affidavit (General Motors), {5 [attached to

MVMA Stay Opposition as Ex. CI (termination of automatic

seat belt program included “the diversion or disposal of

engineering test materials and vehicles”); DeCaluwe Affidavit

(Chrysler), J 5 [attached to MVMA Stay Oppositions as Ex. E]

(delay in reinstating passive belt programs caused in part “by

the dispersal of drawings, hardware, data, development cars,

equipment”); Whittenberg Affidavit (General Motors), {5

{attached to MVMA Brief as Ex. E] (one cause of delay is that

“much of the hardware . . . has been diverted to other use or

*Although the rescission order was announced on October 23,

1981, its effective date was December 8, 1981.

otherwise disposed of“); Kawano Letter (Toyota) at 3

{attached to NHTSA Oct. 1 Memorandum] (“We have already

scrapped the molds, attachments and tools necessary to pro-

duce the prototypes, as well as the prototypes themselves. So,

in order to restart our automatic belt program, we have to

reproduce the molds, attachments and tools necessary to re-

produce the prototype itself.”); Haenchen Statement (Volk-

swagen), at 3 [attached to NHTSA Oct. 1 Memorandum]

(“finished tools unique to the automatic restraints were dis-

posed of and are no longer available”). The manufacturers

should not now be allowed to bootstrap their own pell-mell

destruction of the passive restraint programs into a justifica-

tion for several more years delay.

At every stage in this litigation, the manufacturers’ lead-

time estimates have grown. In opposing State Farm’s motion

for a stay in December 1981, several automakers suggested

relatively moderate lead-time estimates. For example, Ford

indicated in December 1981 that it could install detachable

belts by November 1982 and nondetachable belts by Septem-

ber 1983. Childs Affidavit, J 5, 7 [attached to MVMA Stay

Opposition as Ex. Dl. Chrysler, too, indicated that it could

begin installing automatic seat belts in November 1982. De-

Caluwe Affidavit, 4 [attached to MVMA Stay Opposition as

Ex. El. In responding to the Court’s question on lead time in

their brief on the merits, the automakers began to increase the

complexity of, and time required for, installation of automatic

belts. Chrysler now claimed that it would need over two years

lead time. Withrow Affidavit, J 6 [attached to MVMA Brief as

Ex. Bl. American Motors claimed to need three years. Jones

Affidavit, J 4 [attached to MVMA Brief as Ex. Al. The foreign

manufacturers claimed to need anywhere from one to four

years. Nield Letter, at 2 [attached to MVMA Brief as Ex. F).

Yet, as the Court noted in its June 1 opinion, some of the

manufacturers acknowledged that they could install passive

restraints after a full model year’s lead-time. State Farm at

240-41. See, e.g., Childs Affidavit (Ford), {8 [attached to

MVMA Brief as Ex. C] (replacing active belts with passive

belts would take 60 to 67 weeks); Edwards Affidavit (Ford), 7 6

{attached to MVMA Brief as Ex. D] (same).

Now, NHTSA claims that “practicable compliance. . . could

not be achieved before September 1, 1985 at the earliest” and

that t here remains considerable doubt that uniform com-

pliance could easily be achieved” even then. NHTSA Memor-

andum at 8 (emphasis added). Several of the automakers,

however, concede that they could install passive belts in less

than two years. See, e.g., Horvath Affidavit (General Motors),

"5 [attached to NHTSA Oct. 1 Memorandum] (21 months);

Mori Letter (Honda), at 1-2 [attached to NHTSA Oct. 1

Memorandum] (substantial compliance within 24 months);

Shapiro Letter (Volvo), at 2 [attached to NHTSA Oct. 1

Memorandum] (24 months). Others represent that they would

like up to three to four additional years to comply. See, e.g.,

Jones Affidavit (American Motors), JA [attached to NHTSA

Oct. 1 Memorandum] (24 to 36 months); Withrow Affidavit

(Chrysler), J 6 (three years after reassembly of staff); Gus-

tavsson Letter (SAAB), at 1 [attached to NHTSA Oct. 1

Memorandum] (four years for passive belts, six years for air-

bags).

Underlying the manufacturers’ estimates is their desire to

avoid disruption of their other production goals. See, e.g.,

Price Affidavit (NHTSA), { 11 [attached to NHTSA Oct. 1

Memorandum); Ross Affidavit (Ford), 47 [attached to

NHTSA Oct. 1 Memorandum]; Withrow Affidavit (Chrysler),

{ 7 [attached to NHTSA Oct. 1 Memorandum]. The lead-time

issue is, therefore, a question of priorities. Should the auto-

makers devote their resources to installation of lifesaving re-

straints, or to other vehicular changes, many of which are

purely aesthetic? In passing the 1966 Safety Act, Congress

directed NHTSA to make safety “the overriding consideration

in the issuance of standards,” State Farm at 209 n.3; and, until

now, NHTSA has not allowed the automakers to relegate

occupant crash safety to a subordinate position.

NHTSA’s submission is not entitled to deference. At every

stage in these proceedings, NHTSA has pressed for further

delay. Moreover, NHTSA appears not to have exercised any

judgment (or to have solicited other parties’ views) in evaluat-

ing the automakers’ estimates. It simply accepted those state-

ments without ascertaining the priorities and assumptions that

underlie the manufacturers’ projections.

Given NHTSA’s earlier abdication to the industry's prefer-

ence for detachable belts, and its postponement of the rule

because of the “difficulties of the automobile industry,” 46 Fed.

Reg. 12,033 (Feb. 12, 1981), this Court may infer that

NHTSA’s judgment has again “been distorted by solicitude for

the economically depressed automobile industry—which is not

the agency’s mandate—at the expense of consideration of traf-

fic safety, which is.” State Farm at 240 (footnote omitted).

Indeed, nowhere in NHTSA's submission in there a single

mention of the thousands of lives that will be lost if the Court

accepts the agency’s lead-time recommendation. As before,

NHTSA has simply abdicated its statutory responsibilities in

favor of the desires of the regulated industry.

CONCLUSION

State Farm urges the Court to withhold ruling on NHTSA's

request until after the Supreme Court disposes of the cer-

tiorari petitions, and then to reject any additional delay. State

Farm recognizes the automakers’ assertion that installation of

passive restraints by September 1983 might require them to

divert resources from endeavors that they prefer to vehicular

safety. Those burdens are heavily outweighed, however, by

the human and economic loss that would result from further

delay.

Respectfully submitted,

James F. Fitzpatrick

JAMES F. FITZPATRICK

Michael N. Sohn

John M. Quinn

Merrick B. Garland

Boris Feldman

ARNOLD & PoRTER

1200 New Hampshire Avenue, N.W.

Washington, D.C. 20036

(202) 872-6700

Counsel for Petitioners

in No. 81-2220

Of Counsel:

Dona_p P. McHucu, Esq.

Vice President and General Counsel

State Farm Mutual Automobile

Insurance Company

DATED: October 8, 1982

IN THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 81-2220

State Farm Mutua AUTOMOBILE INSURANCE Co.

KENT Mason, Patricia WARREN and LEORLIN Foo,

Petitioners,

DEPARTMENT OF TRANSPORTATION, Drew LEWIS,

as Secretary, NATIONAL HIGHWAY

TRAFFIC SAFETY ADMINISTRATION,

and Raymonp A. Peck, IR., as Administrator,

Respondents.

CITY OF NEW HAVEN

)

° ) ss.

STATE OF CONNECTICUT )

AFFIDAVIT OF WILLIAM D. NORDHAUS

WILLIAM D. NORDHAUS, being duly sworn, deposes

and says:

1. My professional background is the following. I am

currently the John Musser Professor of Economics at Yale

University, whose faculty I joined in 1967. I received my B.A.

in Economics from Yale University in 1963, and my Ph.D. in

Economics from M. I. T. in 1967. From 1977 to 1979, I served as

a Member of the President’s Council of Economic Advisors

with responsibilities for regulatory and microeconomic poli-

cies. As part of those duties, I organized and served as the first

chairman of the Executive Branch Regulatory Analysis Re-

view Group until February 1979. Throughout my professional

career, I have conducted a broad range of economic research,

including the analysis of costs and benefits of numerous gov-

ernmental policies and regulations. My curriculum vitae is

attached to this affidavit.

2. Iam completely familiar with the recent Order of the

Department of Transportation rescinding requirements for

installation of automatic restraints in passenger automobiles.

In March and May of this year, I submitted Comments in the

rulemaking proceedings which preceded issuance of the auto-

matic restraints order. Those Comments were sponsored by

Allstate, Kemper, Nationwide, State Farm, and Travelers

Insurance Companies. The views expressed—both in those

Comments and in this 2ffidavit—are my personal views and do

not necessarily represent the views of any of the aforemention-

ed institutions.

3. The Comment which I filed with the Department of

Transportation on May 26, 1981, described in detail the results

of an economic cost/benefit analysis which I performed on the

scheduled requirements for installation of automatic restraints

in large and mid-size cars in Model Year 1983 and small cars in

Model Year 1984. A summary of my conclusions is the follow-

b. Put another way, rescission of the entire automatic

restraint schedule would cost the nation $2.4 billion

for every year of delay. The costs of rescission are 3%

times the benefits.

e. In terms of injuries and fatalities, the effect of rescis-

1— pee et —

to increase fatalities by approximate

Year and increase moderateto-critcal injures bya

120,000 per year

d. The estimated impact of the rescission on the auto-

mobile industry is miniscule.

4. The Department of Transportation has now issued an

order rescinding the automatic restraint standard, effective

December 8, 1981. Given the lead time necessary for

implementing so complex a standard, it is clear that if rescis-

sion remains effective for even a brief period, the most optimis-

tic result would be that the introduction of automatic crash

protection would be delayed for one year for large and in-

termediate vehicles—even if the Court were later to reverse

5. The effect of this kind of delay will be grave and irre-

parable in terms of life and limb. In my May Comment, I

concluded that the consequences of a one year delay of the

completely phased in automatic restraint schedule would be an

increase in traffic fatalities of 6,400 and an increase in

moderate-to-critical injuries of approximately 120,000. When

these figures are adjusted to predict the effect of a one year

delay for large and intermediate cars alone, the results are

3,000 additional fatalities and 60,000 moderate-to-critical in-

6. A delay in implementation would also yield substantial

economic costs. One such cost, of course, is the monetary losses

the nation would suffer as a consequence of the deaths and

injuries discussed in Paragraph 8 below. Another such cost is

automobile insurance. In my May Comment, I estimated the

additional insurance costs of rescission would be approximate-

ly $150 per vehicle over its lifetime. On the basis of this metho-

dology, the cost of a one year delay for both large and in-

termediate cars would be approximately $750 million. Impacts

on insurance costs of this magnitude will have a significant

effect on the profits of the automobile insurance industry.

7. By contrast, the benefits to the auto industry of either

delay or rescission are miniscule. As I indicated in my May

comment, and as NHTSA's own figures reveal, the automak-

ers are likely to raise prices by more than enough to offset the

effect of sales on their revenues. Taking intermediate cars as

an example, the Agency estimates that in the long-run the

consumer price increase f » automatic restraints would be $75

per vehicle. The Agency takes 63% of this to be normal variable

cost—indicating a variable cost of around $50 per vehicle.

According to the Agency’s methodology, the price increases

resulting from the standard would more than offset the cost

increase, and automakers’ profits will rise slightly. While the

quantitative effects on automakers’ profits cannot be precisely

determined, it is my judgment that the effect of the rescission

on the health of the auto industry will be negligible. These

estimates of long-range impacts on revenues and profits are

also reasonable approximations of the effect of a one year

delay.

8. In my May Comment, I analyzed the total economic

costs and benefits of a one year delay of the entire automatic

restraint schedule, and concluded that the net economic dam-

age to the nation was approximately $2.4 billion. Adjusting

that analysis for a one year delay of large and intermediate

cars, the methodology used in my Comment yields a net societ-

al cost of over $1 billion.

9. The methods and conclusions in my Comments were in

general accepted by the Agency in its Final Regulatory Impact

Analysis (October 1981). Although the Agency’s conclusions

were marred by numerous inconsistencies and errors, the ma-

jor divergence between the Agency and my Comment lies in

“Seir analysis of usage of automatic restraint systems. The

Agency’s discussion does not disagree with the estimate of

usage of current designs of automatic belts given in my Com-

ment; indeed their review of studies of incremental usage

shown on page IV- 52 shows an increase exactly equal to that in

my Comment. Instead, the Agency’s case rests on the asser-

tion that automatic belts in the future will be detachable and

further that these designs will be completely ineffective. It is

my professional judgment that the Agency’s argument on the

ineffectiveness of detachable automatic belts is completely

without empirical foundation.

10. I am not familiar with any instance, prior to the present

phase of this rulemaking, where as here, a regulatory agency

has rescinded a safety standard whose objectives can be

achieved by existing designs, solely because portions of the

industry have stated that they intend to choose an inferior

design that does not achieve the acknowledged regulatory

objective. This is particularly disturbing where, as in the pre-

sent case, the agency is authorized to issue standards which

require the industry to develop new technology in furtherance

of the safety objectives of its statutory mandate. Rescission of

an important health and safety standard on this basis makes a

mockery of the process of setting performance standards.

11. Finally, the enormity of the impact of rescission on the

nation simply cannot be stressed enough. As I stated in my

May Comment,

“{T Jhe passive restraint rule is, from an economic point of

view, as important as any environmental, health, or safet

rule on the If the estimates of the im on fatal.

ties and injuries are accurate, a rescission would be

equivalent to repealing a law that cuts in half the homicide

rate. It is equivalent to foregoing the medical advances

that allowed the virtual elimination of death from tubercu-

losis over the last quarter century. According to some

estimates, it is equivalent to repealing the Clean Air Act.”

/s/ William D. Nordhaus

WILLIAM D. NorpHaus

Subscibed and sworn to before

me this 23rd day of November, 1981

/s/ Paula M. Sadille

PAULA M. SADILLE

Notary Publie

My Commission Expires: March 31. 1983.

IN THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 81-2220

STATE FARM MUTUAL AUTOMOBILE

INSURANCE Co., et. al.,

Petitioners,

DEPARTMENT OF TRANSPORTATION, et al.,

Respondents.

No. 81-2221

NATIONAL ASSOCIATION OF INDEPENDENT INSURERS, et al.,

Petitioners,

NaTIONAL HIGHWAY TRAFFIC SAFETY ADMINISTRATION,

Respondent.

STATE FARM’S SUPPLEMENTAL MEMORANDUM IN

RESPONSE TO NHTSA’'S OCTOBER 1 SUBMISSION

Petitioners State Farm Mutual Automobile Insurance Com-

pany et al. (“State Farm”) submit this supplemental memoran-

dum to bring to the Court’s attention a recent report by lead-

time analysts of the National Highway Traffic Safety Adminis-

tration (“NHTSA”) that states that about 85% of the auto-

mobiles sold in this country could be equipped with passive

restraints by September i, 1984. That information has not

previously been brought to the Court’s attention, and it bears

directly on NHTSA’s recent request that implementation of

the passive restraint standard be delayed until September 1,

1985 or even later.

* * *

On October 1, 1982, NHTSA submitted a memorandum to

the Court urging that the compliance date of the passive re-

straint standard be postponed from September 1983 to

September 1985. Specifically, NHTSA advised this Court that

“practicable compliance with Modified Standard 208 could not

be achieved before September 1, 1985 at the earliest” and that

At here remains considerable doubt that uniform compliance

could easily be achieved even in September of 1985. NHTSA's

Memorandum in Response to the Court’s August 4, 1982 Order

at 8 (hereinafter cited as “NHTSA Memorandum”).

On October 19, Petitioners received a copy of a report by

NHTSA’s Senior Cost anc Lead Time Specialist that sheds

important new light on the lead-time issue.' The House Sub-

committee Chairman who circulated that Report to his Sub-

committee described its significance as follows:

On October 1, 1982, NHTSA asserted to the Court that

there is “considerable doubt” that automakers could in-

stall automatic crash protection even by model year 1986.

NHTSA’s assertion contradicts an analysis prepared by

The Lead Time Report was made available to Petitioners on

October 19, 1982, by the office of Congressman Edward J. Markey, a

member of the Subcommittee on Telecommunications, Consumer

Protection, and Finance of the House Committee on Energy and

Commerce. (A copy of the Report is attached hereto as Appendix A.)

Congressman Markey received the Report from Chairman Wirth,

who distributed it to the Subcommittee, along with a covering

memorandum and a copy of correspondence between himself and

NHTSA Administrator Raymond Peck. (Copies of that memoran-

dum and exchange of correspondence are attached as Appendices B,

C, and D, respectively.)

the agency’s foremost experts in cost and lead time esti-

mates, which concludes that 81% compliance with the

standard could be achieved by model year 1985, with full

compliance in model year 1986.

Memorandum from The Honorable Timothy E. Wirth to the

Subcommittee on Telecommunications, Consumer Protection,

and Finance, October 19, 1982 (see Appendix B).“

Specifically, the NHTSA analysis state that “By September

1, 1984, 6,649,214 fears] or 85.3 percent of total production

could comply [with the passive restraint standard].” Final

Report: Analysis of Manufacturers Comments on the Lead

Time Required to Install Automatic Restraints in Cars

[FMVSS 208), at 1 (hereinafter cited as “Lead Time Report”).

The Report goes on to explain:

This date [September 1, 1984] would be feasible for most

cars that would be sold in the U.S. at that time, but would

still require significant compression of leadtime schedules

for some car . Nevertheless, if this were established

as the effective date, only a few 2 car lines would

cease being sold in the U.S. for lack of an automatic

restraint.

Id. at 24.

In his October 12 letter to Administrator Peck, Congressman

Wirth stated that he had received “several extremely disturbing

reports” that agency staff had prepared an analysis of the auto-

makers’ lead-time estimates, but that copies of that analysis had been

removed from circulation and perhaps destroyed.

On October 15, 1982, Administrator Peck responded to Con-

gressman Wirth’s letter, enclosing a copy of the Report. Although

Administrator Peck claimed that his staff felt that the report “was

aot in any way inconsistent with the agency’s submission,” he never-

theless challenged the accuracy of the Report and sent Congressman

Wirth a memorandum that criticized the staff analysis for “bias” and

for being “insensitive to the economic consequences of firms’ in-

abilities to comply by a specified date.” See App. D, Felrice Memor-

andum.

A fair reading of the NHTSA staff Report leads one to

conclude that the agency’s proposal for postponement of the

effective date of the standard until 1985 is unwarranted. More

important, the fact that NHTSA failed to bring to the attention

of the Court the technical analysis prepared by its own expert

staff dictates that the agency not be afforded judicial deference

on the lead-time issue. State Farm continues to believe, for the

reasons set forth in its earlier memorandum, that the Court

should not resolve that issue until the Supreme Court has

disposed of the petitions for writs of certiorari.

The Report’s Findings

The Lead Time Report was prepared under the supervision

of Dr. Carl E. Nash, Director of the Engineering Systems

Staff, by members of NHTSA’s Engineering Systems Staff

and Cost and Lead Time Staff. The authors of the Report were

Charles Westphal, Jr., NHTSA’s Senior Cost and Lead Time

Specialist, and Richard C. Carter, a Program Analyst. The

analysis, which is dated September 1982, is labelled “Final

Report” and appears to be in final form (although the word

“Draft” has been stamped over the words “Final Draft” on the

cover page and on each subseque:it page).

In its October 1 submission to this Court, NHTSA asserted

that “practicable compliance with Modified Standard 208 could

not be achieved before September 1, 1985 at the earliest.”

NHTSA Memorandum at 1. Yet the accompanying affidavit of

NHTSA Associate Administrator Courtney M. Price carefully

avoided saying that compliance could not be achieved before

1985; that affidavit merely stated that compliance by Septem-

ber 1983 was “impossible.” See Price Aff. J 14.

The reason for Associate Administrator Price’s refusal to

endorse under oath the 1985 deadline is now apparent:

NHTSA’s own lead-time experts had recognized that, even

accepting the automakers’ own estimates, substantial com-

pliance was achievable well before that date. Their Lead Time

Report summarized the lead-time estimates submitted by

manufacturers who account for 97% of the nation’s car sales. It

stated that, based upon the automakers’ own estimates, 85.3%

of their cars could comply with the passive restraint rule by

September 1, 1984. Lead Time Report at 1. It is difficult, if not

impossible, to square that statement with NHTSA’s assertion

to this Court that “any such [compliance] date earlier than 1985

would preclude most if not all manufacturers from producing

major car lines.” NHTSA Memorandum at 9 n.*.

Nowhere in its October 1 submission did NHTSA apprise

the Court of these critical statements from the Lead Time

Report. The Price Affidavit makes no reference to when after

1983 compliance would be possible. NHTSA’s memorandum

skips from 1983 to 1985 as if 1984 were not an option — even

though the agency’s own experts concluded that 85% com-

pliance was possible by that date.

Moreover, the Lead Time Report casts further doubt upon

NHTSA’s claim that meaningful compliance by 1983 is impossi-

ble, as well as upon NHTSA’s preferred date of 1985. The

Report recognizes that compliance by 1983 “is completely

realistic” for cars that already offer automatic seatbelts as

standard or optional equipment. Lead Time Report at 21. In

addition, the staff stated that the 1983 deadline could be met

for cars “that had completed designs for automatic belts that

have been tested and determined to be satisfactory.” Jd. Al-

though the staff felt that this category “would probably include

only a minority of car lines,” they stated that the automakers

“did not provide sufficiently detailed information to allow us to

estimate the percentage of production for which these condi-

tions hold.” Id. (emphasis added). Given that the automakers

were only five months away from compliance when the stand-

ard was postponed in April 1981, and that orders allegedly

need to be placed with seatbelt mamufacturers nine months in

advance of installation, see Price Aff. J 10, it is likely that

design and testing were completed for many models in 1981.

Indeed, the NHTSA Report acknowledges that, Iflor many

cars, particularly those with wheelbases over 100 inches, de-

signs were completed and at least partially tested. In some

cases, some tooling had been ordered.” Lead Time Report at

20. Thus, absent the missing information from the automakers,

NHTSA cannot reliably state that significant compliance by

September 1, 1983 is impossible. And, even as to those cars

that do not fall into the foregoing categories, the Report in-

dicated that compliance by September 1, 1984 is possible. Lead

Time Report at 21.

NHTSA’s own lead-time experts thus stated that a Septem-

ber 1984 compliance date “would be feasible for most cars that

would be sold in the U.S. at that time,” and that “only a few

special car lines would cease beg sold in the U.S. for lack of an

automatic restraint.” Lead Time Report at 24. Even that

analysis accepted the automakers’ projections, without

addressing whether a reordering of priorities could result in

more prompt compliance.

The authors of the Lead Time Report are expert engineering

analysts. It was not their responsibility to weigh the con-

sequences of further delay in the standard against the lives

that will be lost and serious injuries that will be suffered. The

agency, however, has a statutory obligation to accord those

consequences great weight. Nevertheless, NHTSA takes the

position before this Court that the standard should be delayed

for an additional year beyond the date on which its own experts

believe substantial compliance is feasible, merely to benefit the

tardiest or most recalcitrant members of the industry. This

solicitude would require the nation to tolerate 6,400 de: ths and

120,000 injuries that might otherwise be avoided. NHTSA’s

studied avoidance of its primary statutory obligation—to meet

the need for motor vehicle safety—and its failure to bring to

the attention of this Court its own lead-time experts’ analysis

more than justifies this Court in refusing to defer to the agency

on the lead-time issue.

Respectfully submitted,

/s/ James F. Fitzpatrick

JAMES F. FITZPATRICK

MICHAEL N. SOHN

JOHN M. QUINN

MERRICK B. GARLAND

Boris FELDMAN

ARNOLD & PoRTER

1200 New Hampshire Avenue, N.W.

Washington, D.C. 20036

(202) 872-6700

Counsel for Petitioners

in No. 81-2220

Of Counsel:

DonaLp P. McHucu, Esa.

Vice President and General Counsel

State Farm Mutual Automobile

Insurance Company

DATED: October 20, 1982

APPENDICES TO STATE FARM SUPPLEMENTAL

MEMORANDUM

Appendix A: Final Report: Analysis of Manufacturers Com-

ments on the Lead Time Required to Install

Automatic Restraints in Cars (FMVSS208)

Appendix B: Memorandum from Chairman Wirth to Sub-

committee on Telecommunications, Consumer

Protection, and Finance

Appendix C: Letter from Chairman Wirth to Administrator

Peck

Appendix D: Letter from Administrator Peck to Chairman

Wirth (with attachment)

DRAFT

Final Report

ANALYSIS OF MANUFACTURERS COMMENTS ON THE

LEAD TIME REQUIRED TO INSTALL AUTOMATIC

RESTRAINTS IN CARS

(FMVSS 208)

Charles Westphal, Jr.—Sr. Cost & Lead Time Specialist

Richard C. Carter—Program Analyst

Prepared By

National Highway Traffic Safety Administration

Rulemaking

Engineering Systems Staff

Cost and Lead Time Staff

Dr. Carl E. Nash

Director, Engineering Systems Staff

September 1982

TABLE OF CONTENTS

SumMaryY FINDINGS

SUMMARY OF COMMENTS From INDIVIDUAL AUTOMOBILE

,, a

DISCUSSION OF PARTICULAR IMPLEMENTATION SCHEDULES

LEAD TIME FOR IMPLEMENTATION

OF THE AUTOMATIC RESTRAINT REQUIREMENTS

OF FMVSSS 208

The following report is a summary and analysis of comments on

the lead time required to install automatic restraints in new

passenger cars. These comments were received from seven-

teen motor vehicle manufacturers and the American Seat Belt

Council in response to letters from the Chief Counsel of the

National Highway Traffic Safety Administration (Attachment

1).

The Engineering Systems Staff (ESS) has reviewed and an-

alyzed the comments of the American Seat Belt Council and

the seventeen automobile manufacturers that have submitted

responses. Assuming a total annual sales volume of 8,046,000

units, these seventeen manufacturers produce approximately

7,799,510 cars annually or 96.9 percent of total sales. To date,

nine manufacturers have not submitted comments. These

manufacturers produce 246,490 cars annually or 3.1 percent of

total annual sales.

We have reviewed the seventeen automobile manufacturers

for installing automatic restraint systems on their cars. Table I

is a summary of the leadtime requirements estimated by the

manufacturers that submitted responses. For the 7,799,510

cars that these manufacturers produce annually they stated

that:

1. By September 1, 1983, only 148,851 or 1.9 percent of

II- These are all Volks-

wagens and Toyotas that presently have automatic

belts as an option.

2. 1 September 1, 1984, 6,649,214 or 85.3 percent of

total production could comply.

3. 4 — 3, Ieee 1985, 7,639,677 or 98.0 percent of

total production could comply.

4. By 1, 1986, 7,799,510 or virtually 100 per-

cent of total production could comply

Only two manufacturers (Saab and Isuzu) would need

an effective date beyond September 1, 1986, Saab for

cars it would equi eT nano

onda said

need 3½ years.

in within their

own model lines is permitted, (24) months lead

time is . Therefore, we have recorded Honda

as being to comply by September 1, 1984.

TABLE I

SUMMARY OF LEAD TIME

EFFECTIVE DATE REQUIREMENTS

(17 MANUFACTURERS)

9/1983 9/1984 ~=9/1985 ~— 9/1986

Percent of Respondents

Sales in Compliance 1.9 84 12.7 2.0

Cumulative Percent 1.9 85.3 98.0 100

Memo:

Percent of sales with no 3.1 3.1 3.1 3.1

Response from Manufacturer :

9/1983 9/1984 9/1985 9/1986

Total Sales ot

Respondents

in Compliance 148,851 6,500,368 990,463 160,115

Cumulative Total 148,851 6,649,214 7,639,677 7,799,510

Memo:

Did not Respond 246,490 246,490 246,490 246,490

TABLE II

DETAIL SCHEDULE OF LEAD TIME EFFECTIVE DATE REQUIREMENTS’

Estimated

Auto Company 1982 Sales % of Total 1983 1981˙ 1985 1986 1987

General Motors 3.508.521 43.61 43.61

Ford Motor 1,379,460 17.14 17.14" 17.14

Company

Chrysler 685,742 8.52 1.70 6.86

Corporation

American Motors 134,201 1.67

VW of America 92,631 1.15 1.15

Toyota 544,586 6.77 45 6.32

Nissan/Datsun 471,392 5.86 4.69 1.17

Honda 375,609 4.67 4.67

Mazda 160,872 1.99 1.9

Subaru 147,099 1.83 1.83

Chrysler 107,895 1.34 1.07 27

(Mitsubishi Imports)

Volvo 82,892 1.08 1.03

Volkswagen 66,446 83 25 47 11

Mercedes-Benz 59,843 74

Auto Company 1982 Sales % of Total 1983 198) 1985 1986 1987

Audi 45,341 56 25 31

Renault 39,461 49 49

Saab 18,206 .23 23

Fiat 17,876 22

Peugeot 14,315 18

Isuzu 13,763 17 17

Porsche 13,433 17

IRT, Ine. 9,125 11 11

Delorean 2,909 04

Alfa Romeo 2,015 .03

Rolls-Royce 2,000 03

Others 50,394 61

1.85 63.65 12.31 1.99

80.79' 29.

8,046,000

(1) With no changes in standard.

(2) If standard is changed to require non-detachable belts.

(3) Assuming no unforeseeable problems, and no change in standaru.

* Not additive to protect CONFIDENTIAL SUBMISSIONS.

Summaries Of Comments From Individual Automobile

Manufacturers

The following are summaries of the comments of the indi-

vidual manutacturers along with analyses of these comments

by the Engineering Systems Staff.

American Seat Belt

Council

Chrysler Corporation

(August 27, 1982)

From the time automobile manu-

facturers give suppliers a firm de-

sign for automatic seat belt sys-

tems, it takes approximately nine

(9) months to begin supplying belt

systems.

In order to meet the September 1,

1983 effective date for all cars to

be equipped with automatic belt

systems, suppliers need the final

designs from the automobile man-

ufacturers by October 1, 1982.

To date (September 3, 1982), belt

suppliers have not been given any

designs, and believe it would

be difficult to meet the Septem-

ber 1, 1983 deadline.

Chrysler cannot meet a Sey em-

ber 1, 1983, effective date. If that

effective date is retained, it will

be forced to discontinue passen-

ger car production up to two

years.

The earliest Chrysler will be able

to provide — detachable auto-

matie seat belts is September 1.

1984, and then only on its E- body

vehicles that have a wheelbase

over 100 inches, and possibly a

portion of one other car line. The

earliest C r will be able to

incorporate detachable automatic

seat belts on its remaining lines of

vehicles is September 1, 1985.

Chrysler would be unabie to sur-

vive the production disruption

caused by retention of the

September 1, 1983, effective

date. It also would be unable to

survive the production disruption

caused by a September 1, 1984,

effective date.

R — compliance on vehicles

with a wheelbase over 100 inches

by September 1, 1983, would

force Chrysler to delay the sched-

uled introduction of a new line of

vehicles for one model year.

The lead times discussed above

are ater than Chrysler de-

tailed in its January 22, 1982, affi-

davit filed with the United States

Circuit of Appeals for the District

knowledge gained since that aff:

wledge gained since that affi-

davit was prepared, as well as

other developments since then,

the company to conclude that

those lead time projections are no

longer valid.

Examples of items of additional knowledge gained and de-

vel nts since the affidavit was pre that require lon-

ger lead time are:

— Chrysler now recognizes that

it will take considerably lon-

ger to procure protot in-

strument panels —

with representative materials

for testing purposes.

— When FMVSS 208 was res-

cinded Chrysler could use ear-

Ford Motor Com

(September 16, 1

5820

ly production tooling for E-

body development work. Now

that the E-body is in produc-

tion, additional tooling will be

required to provide new

prototype parts for testing.

Chrysler now recognizes that

separate manual belt production

tooling will be required for export

and Canadian markets.

Chrysler now believes that sub-

stantially more developmental

testing is required to give ade-

quate assurance of system com-

liance. The earlier estimate was

on the results of successful

frontal impacts. More recent test-

ing of imported cars indicates that

itional work will be required

for compliance in angular impact

situations.

Product improvement programs

instituted since January, such as

the redesign of 1 —

on passenger cars for 1986 model

year to reduce vehiele weight,

and the fact Chrysler is introdue-

„ new car lines (one in

model year and two in 1986

model year) will * — a signifi-

cant increase in development

testing.

Ford cannot meet the Court

ordered effective date of Septem-

ber 1, 1983. If the September 1,

rt ble that Feed might

is i 0 ight be re-

quired to suspend passenger car

production or to give up critically

General Motors

Corporation

important new passenger car

product programs.

If Ford were free of all other con-

straints and the standard were

not e , Such as to provide

detachability of automatic belt

systems or to provide air

with an accelerated effort, Ford

could comply by Se tember 1,

1984. However, an effective date

of September 1, 1985 compliance

would allow more orderly and

efficient implementation.

Ford views the September 1,

1984, effective date as not practic-

able because of the severe cost

penalties caused by an acceler-

ated program and the manpower

resources that would have to be

reassigned from other priorit

product programs, some of whic

— have to be dropped or de-

Ford believes that a reasonably

orderly and relatively efficient

poy to introduce passive

Its on substantially all of —

North American passenger

lines could be completed in —

for a Job No. 1 date four to six

weeks before September 1, 1985.

General Motors is unable to meet

the passive restraint rule by

September 1, 1983. The effects of

the disru in production on

General Motors, its suppliers,

and eee will be catas-

tro

Assuming the performance

requirements of SS 208 are

identical to those in the Standard

rior to rescission, General

otors requires a minimum lead

time period of twenty-one (21)

months. To avoid a complete,

second shut down (in addition to

the normal model or ye to

launch the automatic belts prior

to the normal schedule model

change over down time, a

September 1, 1984 effective date

is desired.

General Motors emphasizes that

the changes required to in-

corporate automatic belt systems

are substantial and could not be

reasonably — ery during

production. Therefore to avoid a

complete, second shut down for

two to three weeks at a time other

than the normal model e

over, a September 1, effective

date, is necessary, whatever the

year of implementation.

=o One such as air bags

and/or non detachable automatic

seat belts, were to be required, a

complete redesign of General

Motors’ restraint systems would

be required. Such a redesi

could invalidate the projected 21

months leadtime, and would re-

sult in the loss of any portion of

our investment of which General

Motors would be unable to apply

to any redesigned passive re-

straint system. They —

estimate that this investment wi

be 8375 million. For example. the

adoption of an air bag’s only

requirement could result in the

— Motors

orporation

(September 3, 1982)

Renault, U.S.A.

(August 24, 1982)

Mitsubishi needs a 24-month lead-

time in order to equip the kinds of

vehicles that it is now producin

and it will be producing throug

the 1983 model year, with auto-

matic seatbelt systems that

would meet the requirements

specified in FMVSS 208.

Mitsubishi believes that a 36-

month leadtime is necessary for

them to — vehicles that it will

produce after September 1983.

The above 12-month difference in

lead times arises from the fact

that, in December 1981, Mitsu-

bishi had undertaken only prelim-

inary development work on an

automatic seatbelt system for its

post-September 1983 production

vehicles.

Renault needs thirty (30) months

of lead time for automatic re-

straints from the time when this

— —— has been clearly and

definitively resolved by the

Courts.

Any automatic restraint in-

troduction should coincide with

the start of a September Ist, new

model year.

According to Renault, when the

requirement was rescinded on

October 23, 1981, a two-year lead

time remained before passive re-

straints would have had to be in-

stalled in its vehicles. To revive

and complete the development of

these systems and to tool up for

production, it would be necessary

Isuzu Motors, Limited

(August 31, 1982)

to give them two years’ lead time,

in addition to a six-month start up

period.

Isuzu needs 3% years after the

requirement has been re-es-

tablished.

Unlike active belts, ive belts

uire substantial changes to the

vehicle interior layout including

modification to the vehicle body

structure.

A great number of crash tests are

necessary to make sure that the

vehicle meets all performance

requirements.

Isuzu, relatively small as an auto-

mobile manufacturer, does not

have sufficient manpower, test

facilities, and other resources to

develop more quickly the passive

restraint system as an in

part of the vehicle.

Isuzu needs a minimum of 3-year

lead time to develop such a sys-

tem for one model having only one

body style. However, more than

one el is involved in its pro-

gram and its ability to proceed

with development and production

preparation simultaneously for

two or more vehicle models is

very limited. Therefore, 3% year

lead time is needed.

THIS PAGE EXCLUDES INFORMATION SUBMITTED AS

a 24, 1982)

—. 17. 1982)

CONFIDENTIAL

BMW of North America

(Data submitted with claim that it

is entitled to CONFIDENTIAL

TREATMENT).

THIS PAGE EXCLUDES INFORMATION SUBMITTED AS

CONFIDENTIAL

Nissan Motor Co., LTD. Nissan cannot meet the Septem-

Rolls-Royce Motors

— 8. 1982)

ber 1, 1983, effective date.

For current models where —

sive restraint systems develop-

ment — prior to the

rescission, Nissan projects that

twenty-three (23) — of lead

time is required.

For the neu models that have

been developed since the rescis-

sion, where no provision was

made for automatic restraints,

Nissan projects that a 30-month

lead time would be required. For

these new models, it will be nec-

IS: the inter or de-

the — con-

Nissan did not indicate the num-

ber of current and new models in-

volved in their total produetion.

Rolls-Royce Motors estimates it

would require an effective date 31

— after the final rule is

Leadtimes have been extended

from previous estimates because

Jaguar Cars, LTD.

(September 6, 1982)

Saab-Scandia

(September 10, 1982)

Mazda (North

America) Inc.

resources have been engaged on

other work.

Jaguar requests that NHTSA

persuade the U.S. Court of

A that the effective date be

deferred until January 1984.

According to Jaguar, if the effec-

tive date remains at mber 1,

1983, then either sales to the

United States market will have to

be discontinued, or the company

will be required to introduce into

the market systems that have not

been tested sufficiently.

Saab proposes that passive belts

not be required before September

1, 1986 and that air bags not be

ae before September 1,

Minimum lead time needed is

thirty-one (31) months. To reduce

cost burdens, introduction of

automatic belt systems must coin-

cide with new model introduction.

Mazda suspended development

— 1 quienes when

the mandatory requirement of

the system was rescinded.

The long lead time required is

attributed to the following:

1. Designs intended for imple-

mentation before the rescis-

sion of the standard must be

reviewed.

2. Modifications must be in-

corporated to reflect new

3. Engi ing drawings must

again be released.

4. Arrangements and contracts

a must be negoti-

_ Automatic belt systems are cur-

rently offered as opti 2

ment on the Rabbit and Jetta

models; therefore, those models

N comply by September 1,

belt system deve t after

the rescission. For Volkswagen's

ining models the following

effective dates could be met:

July 1, 1985: VW Quantum,

Quattro, and VW Scirocco.

January 1986: Audi 5000, VW

Rabbit Convertible. Note

that the situation regarding

Volvo of America

Volvo requests a lead time of at

least twenty four (24) months

= 1. oot order for

company to to comply

with passive restraints require-

ments for all its vehicles. Also,

they would prefer an additional 12

2 — 1

0 in to

have a margin for unforeseeable

events.

Volvo cited several reasons why

it cannot comply with the passive

restraint requirements by

1, 1983. The primary

reasons are:

1. Prior to FMVSS being res-

cinded the Volvo automatic

. — — . — for an

alr top-of-

— and eutomtente

belt systems for other models.

2. If passive restraint systems

are again required, Volvo

would to its ori-

release system instead of the

previous buckle-type

quires additional component

testing and crash testing to

Toyota Motor Corpora

(September 15, 1982)

verify the occupant protection

properties of the new sys-

tems.

3. When FMVSS 208 was res-

cinded on October 29, 1981,

Volvo immediately stopped

all work on the development

of passive restraint systems.

4. Since the FMVSS was res-

cinded Volvo has deve

some new models for ——

automatic

restraints were de-

vel . For those models,

deve t must start from

tion Except for the Cressida model

which is already equipped with

matic * by 1. —

ficulties.

they have many car lines with

wheelbase ranges of 100 inches or

less, it is virtually impossible to

ay ep —

for various car lines withi

the same time frame. Thus, none

of these vehicles with wheelbases

of 100 inches or less could be

equipped with automatic belts

earlier than 1985 models, and not

even then for some car lines. Ap-

roximately 90 percent of

oyota’s vehicles are in the 100

i or less wheelbase class.

For the current production mod-

els with wheelbases of more than

100 inches, it would be possi-

ble to adopt the au ic belts

starting with 1985 models,

though it would entail serious dif-

ficulties, except for the Cressida

which is already so equipped. At

the ~y | of N A —

order, development tooling

processes for models to be in-

troduced to the United States or

completely redesigned after

3 hyo than

at a more pre stage

the current production models.

After the rescission order, the

to modify the

already completed development

and tooling program for the

manual belt system, for whic

there is now insufficient time.

Honda Motor

Company, LTD.

(Septem

r 15, 1982)

As explained above, none of

Toyota’s 1984 models can be

equip with automatic belts,

th the exception of the Cressida

which is already being offered

with automatic belts.

Since they cannot comply with

the automatic restraint require-

ments, except with the Cressida

their total sales would be limited

significantly. w ve a

devastating effect on their United

States market, which would

cause extreme financial

sions not only for Toyota, but also

for our United States dealers and

for their employees.

It would be impossible for Honda

to have 1984 year models comply

with the previous ro ts

by September 1, 1983. That is

the period required

for developments and retooling.

They would be able to

certain models that 1

the requirements, 7

starting with the 1985 mode

year.

Honda anticipates their lead time

requirements are:

(1) 36 months, or starting with

1986 model year, if one effec-

tive date is set for all passen-

ger cars.

(2) 24 months, or with

1985 model year, if

allows manufacturers to

Subaru of America, Inc.

(September 21, 1982)

phase-in automatic restraints

within their model line-up.

Note: One effective date for all pas-

senger cars would not pro-

hibit Honda from phasing-in

automatic restraints within

their own models. Therefore,

(24) months, or a September

1, 1984, effective date appears

adequate for Honda.

Subaru cannot meet the Septem-

ber 1, 1983, effective date. The

effects of the disruption in

production on SOA and FHI,

their suppliers, distributors,

dealers and employees would be

catastrophic.

As an absolute minimum, Subaru

requires 36 months lead time for

current and planned models. That

is, assuming the performance

requirements are identical to

those in the standard prior to res-

cission.

Lead time explanation:

(1) Current models

At the time of the October 23,

1981 rescission, 22 months

lead time remained for

implementing the detachable

automatic seat belts, i.e.,

September 1, 1983. At that

time they stopped all passive

restraint development. In

order to regenerate these

activities, reassembling of

engineering technology and

reorganization of develop-

ment teams are necessary,

requiring six (6) months for a

total lead time for current

models of 28 months.

(2) For new models

(36) months lead time is

needed. Explanation of why

were provided in the Septem-

ber 21, 1982 letter on a CON-

FIDENTIAL basis.

Even with the curtailing and

cancellation of other important

engineering projects, they can

not resume developmental activi-

ties for detachable automatic seat

belts until January 1983. During

this period all of their available

engineering manpower is occu-

pied with projects which are

essential to their very survival in

the marketplace. Therefore, it is

impossible for them to comply

with the re-established standard

for 36 months.

GENERAL DISCUSSION

Before the automatic restraint requirements of FMVSS 208

were rescinded, the implementation schedule for the standard

was as follows:

For cars with wheelbases over 100 inches, September

1, 1982, and

° 7 oy with wheelbases under 100 inches, September

For many cars, particularly those with wheelbases over 100

inches, designs were completed and at least partially tested. In

some cases, some tooling had been ordered. However, for the

year preceeding the rescission, many manufacturers slowed

their programs in anticipation that the government would

rescind or modify the automatic restraint requirements.

Despite the fact that there had been considerable develop-

ment work on automatic belts for new cars, many companies

commented that they would like to redesign their automatic

belt systems if they were required to install them in new cars in

the future.

The leadtime required by seat belt manufacturers, from the

time they receive final designs from the automobile companies

until they begin production is normally six to nine months. An

additional two months is required before these systems can be

installed on automobile production lines. However, if new belt

systems must be produced for all cars being sold in the U. S., in

the same model year, manpower and other scheduling prob-

lems will make additional leadtime necessary, or will force

costs up substantially.

Compressing leadtime also affects the design and production

quality of the belts that will be produced. An example of this

effect was the the implementation of the present safety belt

requirements plus the interlock requirement in the 1974 model

year. Less than two years leadtime was allowed to incorporate

automatic locking retractors in lap belts and either webbing

sensitive to inertial locking retractors in shoulder belts, and to

include starter interlock devices to ensure usage of belts. As a

consequence, there were many design deficiencies in these

new belts, as well as quality problems in their production that

affected their performance and consumer acceptability. These

problems exacerbated the negative reaction of some parts of

the public to the starter interlock system.

The Engineering Systems Staff makes the following esti-

mates of the overall leadtime required for individual car lines

to meet an automatic restraint requirement.

For cars that now have automatic belts as standard or

— equipment, such as the VW Rabbit and the

oyota Cressida, the effective date of the standard set

by the Court, September 1, 1983, is completely

realistic.

* Forcars that had completed designs for automatic belts

that have been tested and determined to be satisfacto-

ry by the manufacturers for those cars, the present

effective date could also be met. This would probably

include only a minority of car lines being sold in the

U.S. at present. However, the automobile manufactur-

ers did not provide sufficiently detailed information to

allow us to estimate the percentage of production for

which these conditions hold.

For cars where preliminary design work for automatic

restraints has been completed, and where some

cosideration had been given to the need for installing

automatic belts in the — — vehicle design, two years

of leadtime should be sufficient in most cases. For these

we effective date of September 1, 1984, should be

easible.

For cars on which there has been no design work, and

for which no provision has been made for automatic

restraints, a minimum of two years leadtime is neces-

sary, and three years would be highly desirable. Thus,

for these cars, an effective date of September 1, 1985,

would be desirable. If a substantial number of car lines

fall into this category (and the comments of the auto

makers indicates that they do), scheduling and man-

power constraints would make a two year leadtime

very difficult and expensive, and would probably result

— — and produetion quality problems with the new

ts.

Two additional technical factors should be considered:

For systems that use a knee bolster, such as the VW

and Toyota systems, the redesign of the instrument

panel would require additional leadtime. Typically,

new instrument panels have a leadtime of two to three

years, and such modifications would take about two

years of lead time depending on the extent of the

changes required.

For companies that choose to use air bags to comply

with the standard, a minimum of three years of |

time would be very desirable, if not necessary. There

are no suppliers presently able to produce large quanti-

ties of inflators and other sophisticated components for

air bag systems. Furthermore, these systems require

substantial developmental testing which is very time

consuming. At present, it appears that Ford, Mercedes

Benz, B have developed air bag systems for at

least some of their car lines that could be put into

production in less than three years, but none of these

companies commented on this possibility.

The NHTSA believes that the availability of a substantial

number of new cars with reasonably priced air bags would

enhance public acceptance of the automatic restraint

standard. A leadtime of significantly more than three

years, as well as a major industry commitment to produc-

ing cars with air bags would be necessary for this to occur.

DISCUSSION OF PARTICULAR IMPLEMENTATION

SCHEDULES

A number of automobile manufacturers stated that regardless

of the implementation date, an effective date of September 1 of

the year in which the standard takes effect is highly desirable.

Such an effective date would allow the change to automatic

restraints to be made during the normal model changeover

period.

The automatic restraint standard promulgated in 1977 had a

phased introduction with four to six years of leadtime. The

basis for determining the effective date of the standard was the

size of the passenger car as measured by its wheelbase. Large

cars were given four years of leadtime. Mid-size cars were

provided five years, and small cars had six years.

At present, unfortunately, there is no simple scheme by which

cars could be classified by type (as is permitted in the National

Traffic and Motor Vehicle Safety Act) that would accomodate

the manufacturers’ lead time needs. Thus, for leadtimes of less

than two years, the Engineering Systems Staff does not be-

lieve that a phased introduction schedule is feasible.

The following is a discussion of effective dates for all cars soldin

the U.S.

100

September 1, 1983

This date is highly unrealistic for all cars to be sold in the U.S.

as was recognized as a possibility by the Court. While it would

be possible for many auto companies to meet this effective date

for some of their car lines under emergency conditions, it

would be very expensive and would result in poor quality belt

systems that would be likely to be rejected by the public.

Because of the substantially depressed new car market, and

the poor financial condition of many auto makers, it is possible

that at least some companies could not survive the impact of

substantial extraordinary costs for belt development and tool-

ing, and of consumer rejection of the belts so produced.

There is also no single type of passenger car that could be

defined for which this effective date is feasible for all cars of

that type.

September 1, 1984

This date would be feasible for most cars that would be sold in

the U.S. at that time, but would still require significant com-

pression of leadtime schedules for some car lines. Neverthe-

less, if this were established as the effective date, only a few

special car lines would cease being sold in the U.S. for lack of an

automatic restraint. On the other hand, the compression of

schedules would result in significant cost increases for the belt

systems in some car lines. It would also mean that for some car

lines, the belts would not be those considered optimal by the

manufacturers for both safety performance and consumer ac-

ceptance.

September 1, 1985

The advantages of setting the effective date with nearly three

years of leadtime are basically three: 1) it would eliminate

virtually all compression of schedules for the development and

tooling for automatic restraint production, 2) it would result in

higher quality restraint systems (including the distinct possi-

bility that some manufacturers would use air bags to comply

with the standard), and 3) it would save some costs for install-

101

ing automatic restraints in car lines that will be phased out over

the next three years.

By eliminating the compression of lead times, the cost of

implementing the standard would be minimized. Manufactur-

ers would also not be forced the divert scarce skilled manpower

from other projects to accelerated restraint development pro-

grams. This schedule would also reduce the scheduling prob-

lems with sled and crash test facilities needed for developmen-

tal and compliance certification testing.

Many manufacturers stated that they would change their auto-

matic belt designs from those they had intended to use to meet

the original deadlines set in 1977, to improve their safety,

comfort, convenience, and public acceptability. However, with

less than three years of lead time, many would be forced to use

existing designs rather than newer designs that would be

superior.

Finally, there are several car lines that are likely to be phased

out of production over the next three years, such as the full

sized rear-wheel drive cars of the major manufacturers. If the

effective date of the standard is set less than three years in the

future, the manufacturers would either have to end production

prematurely, or would have to equip these cars with automatic

restraints for a very small production run, making them very

costly.

U.S. House of Representatives

SUBCOMMITTEE ON TELECOMMUNICATIONS,

CONSUMER PROTECTION, AND FINANCE

OF THE

COMMITTEE ON ENERGY AND COMMERCE

Washington, D.C. 20515

October 19, 1982

TO: Members, Subcommittee on Telecommunications, Con-

sumer Protection and Finance

102

FR: Timothy E. Wirth, Chairman

RE: Recent developments concerning Federal Motor Vehi-

cle Safety Standard 208, the automatic crash protection

standard.

As you recall, NHTSA rescinded standard 208 in October,

1981 which would have required automakers to equip cars with

automatic crash protection (air bags, or automatic seat belts).

Soon afterward, several insurance companies joined by the

United Auto Workers and public health and consumer groups

filed a lawsuit against the agency in the U.S. Court of Appeals

for the D.C. Circuit. In June 1982, this court remanded the

case to the agency, stating that the rescission of the automatic

crash protection standard was “arbitrary and capricious” and

“unlawful.” Subsequently, the court reinstated the standard to

be effective on September 1, 1983 (the beginning of the 1984

model year). The court also asked NHTSA to submit additional

comments concerning the feasibility of automakers complying

with the standard by that date.

On October 1, 1982, NHTSA asserted to the Court that

there is “considerable doubt” that automakers could install

automatic crash protection even by model year 1986. NHTSA’s

assertion contradicts an analysis prepared by the agency’s

foremost experts in cost and lead time estimates, which con-

cludes that 81% compliance with the standard could be

achieved by model year 1985, with full compliance in model

year 1986.

For your interest and information, I am including my corres-

pondence with NHTSA Administrator Peck on the lead-time

question, his responses, and a copy of the memo done by the

cost and lead-time experts. I believe these documents warrant

your attention as they will undoubtedly be part of the Sub-

committee’s future oversight efforts.

103

U.S. House of Representatives

SUBCOMMITTEE ON TELECOMMUNICATIONS,

CONSUMER PROTECTION, AND FINANCE

OF THE

COMMITTEE ON ENERGY AND COMMERCE

Washington, D.C. 20515

October 12, 1982

I have had several extremely disturbing reports in recent

days concerning NHTSA’s handling of its review of the esti-

mates given by various automobile manufacturers of the lead-

time necessary before they can install automatic crash protec-

tion in compliance with FMVSS 208. I am aware that the

agency, in response to an order of the United States Court of

Appeals on August 4, 1982, sought information concerning the

lead-time requirements from the manufacturers and that the

agency later set forth its own views on the subject in a sub-

mission to the Court on October 1, 1982.

I have recently been told that employees of the Office of

Rulemaking (or other personnel of the agency) prepared a

summary and an analysis of the comments submitted to the

agency by the automakers on the lead-time question. I am also

informed that one (or more) such document (s) was removed

from circulation within the agency, retrieved from employees

who had received it by employees of the Office of General

Counsel or of your office and, perhaps, destroyed.

I am sure you can understand my dismay at these reports. I

will very much appreciate hearing from you as to the circum-

stances surrounding the preparation, collection or destruction

104

of any NHTSA document prepared in connection with the

manufacturers’ submissions on the lead-time question. If any

such document is in existence at this time, I will appreciate

receiving a copy.

Inasmuch as this matter is presently in litigation and in view

of the serious nature of the reports I have had, I would like to

hear from you no later than close of business on Thursday,

October 14, 1982.

Many thanks for your cooperation.

With best wishes,

Sincerely yours,

/s/ Timothy E. Wirth

Trmotuy E. WIRTH

Chairman

U.S. Department

of T :

National Highway

Traffic Safety

October 15, 1982

The Honorable Timothy E. Wirth

Chairman, Subcommittee on Telecommunications,

Consumer Protection, and Finance of the

Committee on Energy and Commerce

Washington, D.C. 20515

Dear Mr. Chairman:

I share fully your concern over the false reports you have

apparently received over the handling by the National High-

way Traffic Safety Administration (NHTSA) of its response to

the question addressed to us by the U.S. Court of Appeals for

the District of Columbia Circuit as to whether the compliance

date of September 1, 1983, set by the Court is “achievable” or

“whether a longer period is necessary.”

105

Based on my personal knowledge of the events surrounding

NHTSA’s court submission, there is no substance to the allega-

tion you have apparently received that material prepared by

NHTSA in connection with this litigation was improperly “re-

moved from circulation” within the agency, destroyed or

otherwise not taken into account in the preparation of our

submission to the Court.

Ail data prepared or collected by the agency was given to and

used by our Counsel in preparing our response. The Rulemak-

ing Office prepared and assisted in the preparation of the

affidavit of Mrs. Courtney Price, the Associate Administrator

for Rulemaking dated September 30 and submitted to the

Court on October 1, 1982. This affidavit summarizes and sets

forth the agency’s conclusions derived both from agency

knowledge and industry submissions, indicates the basis for

such conclusions, and submits to the Court copies of all indus-

try submissions in response to our request for further informa-

tion. I enclose a copy of this submission for your information.

Internally, the agency and the various offices involved pre-

pared successive drafts of a number of documents which, in

your words, summarized and analyzed manufacturers’ lead-

time submissions. As more data was received, each such draft

was updated and revised, but Counsel’s office was kept in-

formed on a current basis of all such revisions.

I believe I know the origin of the report you received, and am

sure you will share our concern and endorse our action. Briefly,

sometime after 5:00 p.m. on October 1, and after our response

to the Court had been delivered, a document was hand carried

to the Office of Chief Counsel from the Rulemaking Office. As

delivered, it did not resemble in format anything previously

submitted by that Office to Counsel. Staff having left for the

day, the Chief Counsel was unable to confirm what the status of

the document was and, more importantly, whether it repre-

sented new or additional material that should be taken into

account in our response to the Court. Although the internal

agency deadline for analytic data of this nature had long since

106

passed, it was clear that if, in fact, this represented new

information a supplementary or revised filing with the Court

could have been necessary.

To determine whether this was the case, Chief Counsel Frank

Berndt called Dr. Carl Nash, Deputy Associate Administrator

for Rulemaking and Director of the Engineering Systenis

Staff. Mr. Berndt asked for the background of the paper and

the information or analysis upon which it was based. Dr. Nash

responded by bringing Mr. Berndt his file on the subject,

including earlier drafts. In my view this was fully appropriate

and indeed necessary, for the document in no way resembled

any customary format of NHTSA analysis. We do not

customarily prepare any such type of document. It bore no

indication of source of origin within the relevant NHTSA

staffs. It was “delivered” or rather appeared without any

letter or memorandum of transmittal, no review or clearance

sheets, no dates or routes of transmission, and no indication

that it had been seen, reviewed or even given to any of the

offices involved in our response effort.

Most disconcerting of all was the fact that the cover sheet bore

the phrase “September 1982,” an indication on its face that the

paper might u fact, have been in existence before the date of

delivery but never brought to the attention of the draftsmen of

our response.

Mr. Berndt brought the paper to me, and I discussed it at

length with Mr. Berndt, Dr. Nash and the Deputy Administra-

tor. On examination of the document, Dr. Nash was able to

assure us that it was not, in fact, new, was not in any way

inconsistent with the agency’s submission, and had been ap-

propriately considered throughout the preparation of our re-

sponse. He reminded us that he had participated in drafting

and had personally reviewed in detail Mrs. Price’s affidavit,

and had fully concurred in all but one minor point, on which he

readily agreed anyone could differ. (Specifically, he had sug-

gested that it might literally be inaccurate to describe com-

pliance by September 1, 1983, as “impossible,” since on a war

107

time, crash basis, with substantial assistance from the Govern-

ment or otherwise outside the industry and by eliminating

many future lines of cars, some form of partial compliance

could possibly be achieved.)

Dr. Nash noted that no consultation with other offices had

occurred in drafting, and that no supplementary data had been

sought or obtained by his staff from the industry or any other

sources. He was unable to explain why the document had come

to be prepared in that precise format, and had not known of or

concurred in its transmittal to Counsel.

My initial reaction had been to ask Dr. Nash and his staff for an

affidavit suitable for submission to the Court and setting forth

how, on an issue of this importance, a “Report” of his office

could be tendered so late as not to be able to be taken into

account in preparing our submission. In light of his assurance

that that document was not new or inconsistent in any way

with our submission, and had previously been considered by

Counsel, I withdrew that request.

Since, however, the document had, in fact, been transmitted

by an

This text is long and has been trimmed here. Open the source document for the complete record.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.