Amicus Curiae Brief — Williamson v. Mazda Motor of America, Inc. (No. 08-1314)

Suprane Coun ts

PIlLeéy

SEP &8 2010 SEP 2 & 2010

William K. Suter, OFFICE OF THE Chik |

Clerk No. 0& 1314 Cra

IN ‘THE

Supreme Court of the Cnited States

DELBERT WILLIAMSON, ET AL.,

Petitioners,

Vv

MAZDA MOTOR OF AMERICA, INC. ET AL..,

Respondents.

Qn Writ of Cortiorart

to the Court of Appeal of California,

hourth Appellate District, Division Three

BKK FOR AMICUS CURIAE JUVENILE

PRODUCTS MANUFACTURERS ASSOCIATION

IN SUPPORT OF RESPONDENTS

H. CHRISTOPHER BARTOLOMUCCI

Counsel of Record

JOSHUA DD. HAWLEY

HOGAN Lovetsts US LLP

555 Thirteenth Street, NW

Washington, DC 20004

christopher. bartolomuccs

mhopantlovells com

(202) 637-5810

Counsel for Amicus Curtae

Vivi SOn bet beer, Go tea (702) (69 O09 - Wasiicion DC 70002

1

TABLE OF CONTENTS

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STATEMENT ()}° INTEREST (}°

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INTRODUCTION AND SUMMARY OF

PORTE a ai cig Soca coeds ncercnccac cesauceoeens: 2

SUNT isos saber cing cneaxtdoac naceisyaenecssecieisianes irieuricene

NHVSAS 1969 RULE AUTHORIZING

LAP ONLY BELTS IN REAR CENTER

SEATS WAS PART OF A COMPRE-

HENSIVE CHILD-SAFETY POLICY

AIMED A'T PROMOTING ‘Titk USk OF

CHILD RESTRAINTS IN THE SAFEST

SSR Re PMO N OG oe ke cvocccsescvicocncssanaticecevavscceoeccs 5

A. Backpround on FMVSS) 215, the

(thoald Restraint Standard” Ee ee eR ee

odin the 19805, NHTSA Adopted the

Pohey That All Child Restraints Must

be Capable of Beany Installed Solely

With oa Type l Seathelt and

IKneouraged the Installation of Child

Kestramis im Rear Inboard Seats 0000. ra!

(oo NITPSA’s 1OxY Amendment ta

MMVSS 4O% Was Consistent With the

Agency's Child-Safety Polhers Under

FI CES Bok onde vvesscerccaies Bre eae ee

CONCLUSION. : Feds ckvea yews eecieaein case ee

TABLE OF AUTHORITIES

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Statutes:

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64 Fed. Reg. 10786 (1999).................. icegesenaaweenee 14

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TABLE OF AUTHORITIES—- Continued

ee: Piet Be Cn avohesceccicivnsedsnncinani

G7 Fed. Reg. 68295 (2002)... 00.000...

a eS me Ce: Ears nen

Fe Re, ee Be CI eho cton es cricvvaiveacecvecicss

Hertz, Reosed Estimates of Child Restraint

Keffecttveness, NUVSA Kescarch Note

(Dee. 199G)

Kahane, An Evaluation of Child Passenper

Safety: The Iffectiveness and Benefits

of Safety Seats, NHTSA — Report

No. DOT HS 806 890 (Feb. PY8G6). 0.0.00...

NHTSA Safety Tips for Using Child

Restramt Systems, printed uv National

Transportation Safety Board, Safety

Study: The Performance and Use of

Child Restraint Systems, Seatbelts, and

Air Bags for Children an Passenger

Vehacles, Vol. 1, Appendix A

(Sept. 1996)

NHPSA, Child Passenger Satety Resource

2

SNM ON * IN oe ico csc/ ceca cescevy sscewedndancdenes

NHPSA, Kesearch Note, ‘Traffic Satety

acts: Lives Saved Calculations for

Infants and Toddlers, DOT HS 809 778

(March 2005) ...... oer

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STATEMENT OF INTEREST OF

AMICUS CURITAE'

The Juvenile Products Manufacturers Association

(APMA") is a national, not-for-profit’ organization

that represents 95% of the prenatal to preschool

midustry. Formed in 1962, JPMA’s members include

more than 250 compames in the United States and

North America. dPMA’s member companies manu

facture, import and/or distmbute «a wide range of

infant products, including child) restraint systems.

JPMA’s membership ancludes more than a dozen

child restraint manufacturers,

JPMA has been recognized for its dedication to

enhancing the safety of children’s products. JPMA's

leadership an juvenile product safety meludes the

development oof a comprehensive Certification

Propyram to help guide parents and other caregivers

toward purchasing juvenile products that are built

with safety in mind.

JPMA works with povernment agencies, consumer

yroups, and industry leaders on programs designed

to educate consumers on the safe selection and use of

juvenile products See, eg., Consumer Product

Safety Commission, 66° Fed. Reg. $9692, 39602

(2001) (noting that the Commussion asked JPMA “to

disseminate the message that careyivers should

never leave a baby unattended ina tub of water’).

' Pursuant to this Court's Rale $7.6. counsel for amicus

come certily that no part of this brief was authored by eounse|

for any party, and no person or entity other than aatieus or its

members made a monetary contribution to the preparation or

sulunission of the bref ‘The bref as filed with the consent of

the parcies, whose consent letters have bec filed with the

Clerk

JPMA has sponsored programs such as Sale & Sound

hor Baby and Baby Safety Month to keep safety-

conscious parents informed.

JPMA has regularly provided comments to the

National Thighway ‘Praffie Safety Administration

CNEVPSA’) in connection with rulemaking regarding

child restraints. See, eg., 67 Ped. Reg. 63295, 63295

(L002) (noting that JPMA’s comments “represented

the views of child restraint system manufacturers’).

As JPMA has made clear to NIHTSA, “the number

one priority of [child restraint) manufacturers is to

inercase the usage and more importantly the proper

use of child restraint systems.” 62 Fed. Reg. 7858,

T8OS (1997)

INTRODUCTION AND

SUMMARY OF ARGUMENT

This case concerns the preemptive effect of the

Pederal Motor Vehicle Safety Standards (FMVSS’).

Prior to the amendments enacted in Loso, NHTSA’s

seatbelt rule, FMVSS YO8, see 49 CORR. § 571.208,

pave Velocle manuhacturers the option to install lap-

only seatbelts (Py pe 1 belts) or lap/shoulder seatbelts

(Pype 2 belts) in rear seating positions. Under the

1989 amendments, NEVPSA required ‘Type 2 belts in

rear Outboard seating positions but preserved the

option of rnstalling either Type lor Type 2 belts in

rear inboard seats”

This case arises from an aceident involving a Loos

Mazda MPV Minivan which was equipped with a

Phe 19SO version of FMVSS 208 ais no longer om effect

Since September | 2007, F/MVSS 208 has required new cars to

be equipped wath Pype 2 seatbelts in almost all rear seating

positions

3

lap-only belt in its middle row, rear aisle seating

position. When the accident occurred, that scat was

occupied by Thanh Wilhamson, the decedent. Plam-

tiffs’ state-law tort suit sceks to hold Mazda lable for

failing to anstall a lap/shoulder belt in the middle row

inboard seat,’ even though FMVSS 208 gave Mazda

the option to install a lap-only belt am that seating

postion.

The meanmng—and preemptive effect of the Losg

revisions to PMVSS 2O8 cannot be determined by

stmply consuderimg the amendment itself The Los”

changes represent but one in a series of adjustments

to the 208 standard, and that standard itself is but

one ma series of regulations designed to ensure the

safety oof vehicle occupants, imeluding children

Viewed in context, the 1989 amendments permitting

automobile manufacturers to mstall eather Pype Lor

Type 2 belts in the rear inboard seats are entirely

consistent with ao broader child-safety pohey the

agency adopted years carher. Beginning om LOS,

NHPSA required all child restraint devices to be

capable of being secured solely by means of Type 1

belts, and further determined that the safest location

for a child restrammt as a rear center seat

S NHTSA distinguishes between “outboard” seating posi

tions, or seats located “less than 12 inches from the mumermcost

pontoon the mside surface of the vehicle.” 49 CPR § 57148

and “inboard: seating postlrans, seats located more than 12

inches away. bor purposes of FMVSS 208, NASA defines a

“rear outboard desapmatiog seating position” to mebude any

** * that is rearward of

“outhoourd desipmated seating position

the front seat(s), except any desipmated seating position adja

cont toa walkway that is located between the seat cnd the near

side of the vehicle and as designed to allow access to more

rearward seating positions — 49C PR § o7 1208 S41 4 oye)

for years, NEEPSA used FMVSS 208, 210, and 213

to nnplement this child-safety pohey. The regula.

(ions worked in tandem. BFMVSS 213 established

design and performance requirements for child

restraint systems, along wath @ rigorous testing

revime to evaluate those systems. Following exten-

sive review over nearly a decade, NHTSA decided in

1980 to require that all child) restraant devices be

capable of installation with only a Type 1 seatbelt.

NHTSA’s regulation reflected its considered judg-

ment that standardizing and sunplifving the means

of installation of child restramt devices would pro-

mote their use, reduce them misuse, and help keep

small children sate

By the time the FMVSS 2175 revision became tinal

in T98O, NHTSA had further coneluded that the

safest location for a child restraint device Was in the

rear center or inboard seat of the velnele. As part of

a final rule amending FMVSS 2138, NHTSA required

all instructions accompanying child satety seats to

state clearly that the rear center scating position

was the safest place to put a child seat

liaplementing this pohey, NHPSA tn Lds5 revised

YIS's companion regulation, FMVSS 210, to require

that the owners manual of every vehicle melade a

statement explaumimg that ehild) restraint devices

were designed to be capable of being secured using

Type d lap belts and ideally should be placed in the

rear center seating position

PMVSS 20S reflected this same child-saftety policy

Pror to Tso, FMVSS 2OS permitted Pype 1 seat-

belts an all rear seating positions bn lasso, NEPPSA

changed the standard to require ‘Type 2 belts in rear

outboard seats, but pointedly refused to require ‘Pype

2 belts in rear center seats. Instead, and in keeping

with ats poliey of promoting child-satety seat use in

the rear center seats, the ageney preserved the

manufacturer's option to use either ‘Type lor Type 2

belts there even as NHTSA continued to tell par

ents that those seats were the safest place for child

safety devices. Indeed, as late as 1997, NHTSA

observed that child safety seats were desigued to be

secured with a Type bo belt, and affirmatively urged

parents to place those safety seats m the rear center

seating position

ARGUMENT

NHTSA’S 1989 RULE AUTHORIZING LAP-

ONLY BELTS IN REAR CENTER SEATS WAS

PART OF A’ COMPREHENSIVE CHILD-

SAFETY POLICY AIMED AT PROMOTING

THE USk OF CHILD RESTRAINTS 'N THE

SAFEST SEATING POSITION.

PMVSS 208 is part of a cluster of safety regulations

that include the critical objective of protecting smal!

children riding im automobiles. Under FMVSS 2b:

NEPPSA adopted a comprehensive poliey to promote

child safety by promoting the use of child restraint

devices. As part of this pohey, the agency required a

standardized means of installing child satetw seats

with Type bo belts and alse advised parents and

other caregivers that the placement of child) re

traints mi rear inboard positions was safest. The

bOSo revisions to FMVSS YOS did not alter, but were

m fact fully compatible wath thas pores

A. Background on FMVSS 218. the Child Re

straint Standard

PMNSS 295 as NEPPSA’S child restraint standard

t

See 49 CLELR. § 571.218.) The express purpose of

PMVSS 213 as “to reduce the number of children

killed or injured in motor vehicle crashes.” fad

§ 571.213, S2.

EMVSS 213 establishes both design and perform,

ance requirements for child restraint systems. It

requires dynamic testing in which the child restraint

and a test dummy are crashed into a frontal barrier

and subjected to a rapid change in velocity. “The

child restraint must manage the force from the

simulated crash so that the forces imparted to the

dummy are within tolerable limits” NHTSA, G7

Fed. Reg. 21806, 21812 (2002). The FMVSS 213

crash testing “myolvjes}| a 80 mph velocity change,

Which is representative of a severe crash” dd. at

VISOO. Indeed, the “SO mph change in velocity is

wore severe than approximately 9S percent of the

frontal mpact crashes nationwide” NHTSA, 68 Fed

Reg. 87620, 37640 (2008).

Because FMVSS 213 and the Cesting it requires are

nygorous, FMVSS 213-comphant child restraints “are

the most effective vehicle safety measure avathible

for children” NHTSA, 72 Ped) Reg. to804) 65805

(2007). As NITPSA has recognized

When used, child restraints are highly effective in

redaamge the likelihood of death andor serous

myury aa motor vehicle crashes NHESA estt

** * that tor children less than one-year

hates

old, a child restramt can reduce the risk of tatal

tv by 71 percent when used im a passenger car

and by 58 pereent when used ma pickup track,

van, or sport utthty velnele (ight truck). Child

restramt effectiveness tor children between the

el —_—

7

ages L to 4 years old is 54 percent im passonger

cars and 59 percent in lyght trucks

NHTSA, 68 Fed. Reg. at 87622 (citing Hertz, Reorsed

Estimates of Child Restraint Effectiveness, NHTSA

Research Note (Dec. 1996)

“The rate of effectiveness for infants in child safety

seats IM passenger cars means that 71 percent of

Infants mm passenger cars Who would die without a

child satety seat would survive the crash if they were

restramed ina child safety seat.” NEPTSA, Research

Note, Traffic Safetv Facts: Lives Saved Calculations

ie Infants and Toddlers, DOT HS S09 778 (March

2005). See also Kahane, An Evaluation of Child

Passenger Safety: The Effectiveness and Benefits of

Safety Seats, NHPSA Report No DOT HS 806 S890

(Feb. 1986) (| Py}he preliminary conclusion is that all

tvpes of correctly used seats reduce fitabties bw close

to 71 pereent and hospitalizations by close to 7

percent”)

FMVSS 215 as by no means a merely “minimal

staumdard. As noted, PMVSS 213 testing simulates a

severe crash, and FMVSS 213-compliant child re-

straamte are highly effective mo preventing death or

seruous injgury. ‘To be sure, the Sateoy Act states that

each FMVSS is “a moenemum stamdord for motor

Vefnele or motor velucle equepment perlormance | 49

USC § S0LG20¢0 But they are momimum stan

dards om the sense that they are mandufors stan

dards that manufacturers must mect er sumposs As

NELTSA has explained

Mingmum perioermamee standards do mot equiute

with “nenmemat performance standards * * *

The word “mowimum im the statetory definrtion

S

of motor vehicle safety standards * * * does not

refer to the substantive content of the standards

but rather to their legal status—that the products

covered must pot tall short of them.

Al Fed Reg. 2391, 2392 (1976) Indeed, under the

Safety Act, every FMVSS must achieve a standard of

performance for motor vehicles and moter vehicle

equipment sufficient to protect “against unreason

able risk of death or injury in an aceident’® 9 4%

LSC. § BU102Z U0 8)

B. In the 1980s, NHTSA Adopted the Policy

That All Child Restraints Must Be Capable

of Being Installed Solely With a Type 1

Seatbelt and Encouraged the Installation

of Child Restraints in Rear Inboard Seats.

NHTSA’s predecessor, the National Highway

Safety Bureau, issued the first version of FMVss

Y13an Mareh 1970, with an effective date of danuary

11971. See Motor Vehiele Safety Standard No. 2138,

Child Seating Systems, 35 Fed. Reg. S120 (1970)

From the outset, the agency recognized that “|[t}he

muite performance of a child Seating svstem depends

in large measure, on ats proper instablation cmd use

hoo at HWO] le also recogmized that “[t]he methed

used to attach a restramt device to the moter vehicle

is obviously crmtical to ats saute performances hd

oe)

With these considerations me mind, the agenes dh

cided that child restraints must be anchored with

Vehicle seatbelts Sec id { Because seat belts are

engineered, manufactured, and anstalled) for the

specific purpose of restramung velucle occupants, and

ther value for that purpose has been established

)

** * cach chold seating system must be designed and

constructed so that at will bo restramed by aseat belt

assembly when the system is properly imstalled )

The first version of PMVSS 215 provided that child

restramt systems must be capable of berg secured

“by a ‘Type 1 or ‘Type 2 seat belt assembly as defined

in Federal Motor Vetucle Safety Standard Noo vou

fd. at 5122 (quoting FMVSS 213, S4.4¢b))

In 1974, NEIPSA proposed to revise PMVSS 213

See oo Ped. Reg. Tdo9 C97. One of the proposed

revisions Would have allowed child restramnts to be

capable of being secured by Type Door Type 2 seat

belts or by “belts or belt extensions provided by the

restraint manufacturer. at spocitied belt performance

requirements are met. fo at 7so0

NIIPTSA did not, however, adopt this contemplated

revision Which would have expanded the list. ot

permuissthle amstallation methods After turther

study, the agency moved in the opposite direction: at

decided ino the date 1970s that all child restraint

systems must be capable of beam amchored solely

with Pvpe TP seatbelt:

Ina IST netiwe of proposed rulemaking, NHTSA

proposed a new version of FMVSS 21S that would

require all child restraint systems toe be capable of

mstallition solely with Type LT seatbelts See 48 Fed

Reg. 21400, 21475 (L978) CA child restraints, * * *

must be capable of boing sceured to a vehicle with a

Type | (lap) seat belt as specitied in Standard No

LON) The proposed new version FMVSS 213

stated

When installed on a vehicle seat. each child re-

stramt system. other han child marnesses. shall

10

be capable of boung restramed agamst forward

movement solely by means of a Type ft seat belt

, A

assembly

fd at 21AS6 (Quoting proposed FMVSS 213, 85.3.2)

NEPEPSA’s proposed requirement that all child re-

Stramis must be capable of installation solely wath

hype ol seatbelts reflected NIPPSA’s considered

judgment that samplitcation of installation would

reduce the misuse of child restraints and promote

child satety NEEPESA noted that “a concerted eftort

needs to be made to reduce the problem of DLids thse a

child restraints. Misuse substantially reduces the

afetv value of these restramts”” fd. at 21471. And

NEEPSA reasoned that “pit either the attaching of

restraints to vehicles or securing of children in the

restramts bhecome,: overly complex, the already

ubstantial problem oof mususe could be greatly

oxncerbated”” Td

NUPSA concluded that) requiring all) child) re

stramtis to be capable of instalhation through a

uniform, standardized method of installation was:

critical to avend misuse

Standardization of the means ot anchorimy a child

restraint to oa velco as vital to prevent misuse

By requiring all restraints to be attachable to ve-

hicle seats hy the vehicle seat belt, consumers wall

be assured of a uniform method of attaching the

restramnt and there will be less contusion regard

vagy that aspect of use

ldo at 21472

NEPPSA adopted the new version of FMVSS 2135 in

December 1979) with an effective date of dune 1,

11

L980 See 44 Ped. Reg. 72131 (1979). This) 1980

version of FMVSS 2158 included the new requirement

that “all child restraints be capable of being secured

to the vehicle seat by adap belt.” /d. at 721386. See

also td. at 72149 (publishing FMVSS 213, S5.3.2).

NEPSA reiterated that standardizing the means of

Installation of child) restramt systems by requiring

all child restramts to be capable of being installed

solely by Type T belts—was important to achieve

proper use of child restraints. See td. at 72136

(Standardizing all restraints by requiring them to

be capable of being attached by a lap belt is an

important way to prevent muisuse.”) During this

time pemod, as NHTSA noted in 1984, “most child

restramts are designed to be used only with lap

belts.” 49 Fed. Reg. 15241, 15241 (1984).

By the time of the 1980 revision to FMVSS 213.

NIVPSA had also concluded that the safest location

for a child restraint was a rear center seat. In its

1978 notice of proposed rulemaking, NHTSA) pro-

posed that the instructions accompanying child

restraints should “be required to state that the

center rear seating position in passenger cars is the

safest seating position and that child) restraints

should therefore be installed in that position.” 43

hed. Reg. at 21476. Adopting the proposal in De-

cember 1979, NHTSA explained that “Jajecident data

have consistently shown that the occupants in the

rear seat are safer than occupants in the front seat.

The same data show that the center rear seating

position as the safest seating position in the rear

seat.” 44 Fed. Reg. at 72137. ‘Thus, as of 1980,

NIVESA required the manufacturer's instructions for

installing a child restraint to state that “the rear

12

center scating position is the safest seating position

i most vehicles for installing a child restraint sys-

tem.” fd at 72150 (quoting FMVSS 2138, 55.6.1).

The twin NETSA policies expressed in the L980

version of EMVSS 213—that all child) restraints

should be capable of bein: installed solely with a lap

belt and that the rear center seating position is the

safest place for a child) restraint—were also ex-

pressed during the mid-1980s in NUH'PSA rulemaking

under FMVSS a Which governs seatbelt assembly

anchorages. See 49 CPR. §& 571.210.) In October

LOS, NHTSA potior ts d FMVSS 210 to require the

owners manual in every vehicle to melude a section

“exphaning that all child) restraint systems are

designed to be secured in vehicle seats by lap belts or

the lap belt portion of a lap-sheulder belt.” 50 Fed

Reg. 41356, 41359 (1985) (quoting FMVSS: 210,

S6(a)). NHTSA also required a statement alerting

vehicle owners “that, according to accident statustics

children are safer when properly restrained in the

rear seating postions than in the front seating

postions. In oa vehicle with a center rear seating

position, the owner's manual shall state that the

center rear position is the safest.” Id. (quoting

MhMVSS 210, SG(b) (emphasis added)). NHTSA based

this requirement on “crash tests and accident data

which show that the center rear scat is safer, par-

ticularly in side impacts, than other seats.” 51 Fed.

Reg. 29552, 29554 (1986).4

* Without retreating from its position that a rear center

seating position is the safest location for a child restraint,

NHTSA subsequently agreed with a petitioner that “depending

on how a child is restrained and the severity of the crash, it is

possible for a restrained child in the center rear scat of a bucket

seat vehicle to strike a portion of the vehicle's interior in front

13

C. NHTSA’s 1989 Amendment to FMVSS 208

Was Consistent With the Agency’s Child-

Safety Policies Under FMVSS 213.

In the 1980s, NHTSA determined that requiring a

simplified and standardized means of installing child

restramts—with lap-only Type Ll belts—promoted

child seat use, reduced misuse, and was important to

child safety. It also determined that parents and

caregivers should be informed that the rear center

seat is the safest place for a child restraint system.

NHTSA implemented these polos through FMVSS

218

NHTSA’s 1989 revisions to FMVSS 208 were en-

tirely consistent with these policies. The LOS89 revi-

sions permitted manufacturers to mstall Type 1 belts

in rear center seating positions, thus ensuring the

avalability of that option for parents and caregivers

who wished to install child restraints with such belts

in those seats.

In this respect, the FMVSS 208 revisions marked

no sea change. Even after the 1989 amendments,

NHTSA continued to mandate, per FMVSS 213, that

child restraint systems “shall be capable of being

restrained against forward movement solely by

of the child.” 51 Fed. Reg. at 29554. For that reason, NHTSA

“deleted the requirement an S6(b) fof FMVSS 210) that manu

facturers state that the center rear seat is the safest seating

position Jd Yet FMVSS 2138, S4.6.1 continued to require

child restraint system instructions to state that the rear center

postion is safest for child restraints. See 51 Fed. Reg. 5335,

6339 (1986) (amending FMVSS 213, 55.6.1 to provide: “The

instructions shall state that, for inaximum safety protection,

child restraimt systems should be installed * * * in the center

rear seating position in vehicles with such a seating position ")

14

means of a Type | seat belt assembly * * * "49

CPLR. § 571.2138, S5.3.2 (1993) (emphasis added).

even after the 1989 amendments to FMVSS 208,

NHESA continued to adhere to its policy that child

restraints should be capable of being installed solely

with Type Lb belts and that the rear center seat was

safest.” In January 1991, NHTSA stated: “Standard

No. 214 requires that child restraint systems meet

specific performance requirements when only a lap

beltis used. Accident data show that child restraints

meeting current requirements already provide a high

level of child protection without the use of shoulder

restraints.” 56 Fed. Reg. 38064, 8064 (1991) (empha

sis added). NHTSA explamed that, “even as more

rear outboard seating positions of vehicles on the

road have shoulder restraimts, the safest position for

the child restraint (the center rear position) will not

be equipped with shoulder restraints.” ld. (emphasis

added). See also NHTSA, Child Passenger Safety

Resource Manual 8&8 (Mar. 1992) ([Blased on statis-

tical evidence, the rear seat as generally the safer

place for a child to be. * * * The center rear seat is

farthest from possible mtrusion in side impacts.”).

The next year, in May 1992, NHTSA reaffirmed its

policy requiring standardization of the means of

®* In 1999, NHPSA adopted a rule requiring motor vehicles

to be equipped with a new standardized method of installing

child restraints wath an anchorage system independent of the

vehicle seatbelts. See 64 Fed. Reg. 10786 (1999). At the same

tame, NHTSA mandated that “lelach child restraint will also

have to continue to be capable of being attached to a vehicle by

way of the vehicle's belt system. This way, child restraints that

have the new components can still be used on older model

vehicles that do not have a child restraint anchorage system.”

ld at 10788

installing child restraints with Type | belts. See 57

Fed. Reg. 22682, 22685 (199%) (Standard 215 stan

dardizes the means for attaching child restraints by

requiring all of them to be capable of being attached

to the vehicle seat and providing the required protec

tion using only the vehicle lap belt.’).

In the 1990s, NHTSA continued to advise parents

and caregivers that the rear center seating posi-

tion—the place where a lap-only belt would be > was

the safest spot for a child restraint) In a publication

entitled “NEPSA Safety Thps for Using Child Re

straint Systems,” NIPSA included an image of a

Child restramt an the rear center seating position

secured by a lap-only belt and advised that “[t}he

center belt works best for a safety seat.”

The back sea! ts safer than the frant The center bel! works bes! for a safety

sea! Ofder ofmitren staal use lap/shoutder bells fur bes! profecton

16

See NHTSA Safety Tips for Using Child Restraime

Systems, printed in National ‘Transportation Safety

Board, Safety Study: The Performance and Use of

Child Restraint Systems, Seatbelts, and Aur Bags for

Children in Passenger Vehicles, Vol. 1, Appendix A

(Sept. 1996) (available at

http://www.entsb.gov/publetn/1996/ss960 1 pdf).

As late as 1997, NIPPSA observed that “[e]hild

seats are generally designed to attach to a vehicle by

means of the vehicle's lap belt system” and confirmed

that “child seats provide high levels of safety when

correctly attached to a standard vehicle seat assem-

bly with only a lap belt.” 62 Ped. Reg. at 7859.

NHTSA’s emphasis during the 1990s on the use of

Type 1 lap-only belts to secure child restraints in

rear center seats repudiates the Government's

suggestion that NHTSA would have been perfectly

happy if manufacturers had unmmediately switched to

Type 2 belts in 1989. Instead, the regulatory history

underscores that NHTSA intended to give manufac-

turers the genuine option of installing either a Type

bor Type 2 belt for the rear imboard seats in view of

the unique safety concerns presented by small chil-

dren and child restraints.

17

CONCLUSION

lor the foreyoiny reasons, the judgment of the Cals-

forma Court of Appeal should be affirmed.

Respectfully submitted,

H. CHRISTOPHER BARTOLOMUCC!

Counsel of Record

JOSHUA D. HAWLEY

HOGAN LovELLS US LLP

555 Thirteenth Street, NW

Washington, DC 20004

christopher. bartolomuce!

@Mhoganlovells.com

(202) 637-5810

Counsel for Amicus Curiae

SEPTEMBER 28, 2010