Ford Motor Company, Petitioner, v. National Highway Traffic Safety Administration Anddepartment of Transportation, United States Ofamerica, Respondents, 473 F.2d 1241 (6th Cir. 1973)

This case is here on petition of the Ford Motor Company for a review of an order of the National Highway Traffic Safety Administration of the Department of Transportation, adopted pursuant to the National Traffic and Motor Vehicle Safety Act of 1966, 15 U.S.C. §§ 1381-1431, and published as "Notice 16," 37 F.Reg. 3911 (Feb. 24, 1972). At issue is the effect of this Court's decision in Chrysler Corporation, et al. v. Department of Transportation, et al., 472 F.2d 659 (6th Cir., 1972) (hereinafter Chrysler) upon subsequently adopted amendments to Automobile Safety Standard 208. In that case, this Court held that the anthropomorphic test device specified in Standard 208, as defined in SAE Recommended Practice J963, was not objective as required by the Act; accordingly, paragraph S8.1.8 was declared invalid, and the proceeding was remanded to the Agency with instructions that any further specifications for test devices be made in objective terms. The effect of that decision was an indefinite postponement of all options open to a manufacturer after August 15, 1973, except for the "third option," here under review. In footnote 5 of that opinion, we noted that several petitions for review of Notice 16 had been filed, but that those cases had not yet been argued to the Court. This is the first of those petitions to be considered, and both parties to this proceeding have conceded that the disposition of Chrysler is determinative of the principal contentions advanced in the present case.

The history of the rulemaking proceeding which produced Standard 208 in its present form is recounted in detail in Chrysler, and need not be repeated here. For the purposes of this case, it is sufficient to note that Standard 208 now requires, for the period between August 15, 1973 and August 14, 1975, that a manufacturer provide seat belts with ignition interlocks¹  for all front seat passengers, plus non-interlocked belts at other seating positions. Two different methods are provided for testing the belts for compliance. Belts for the rear seat passengers and the front seat center passenger, when such seating positions are provided, must meet the requirements of Standard 209.²  Belts for the driver and the right front seat passenger are required to meet the injury criteria of Standard 208.³ 

No objection is made by the petitioner to the requirements of the interlock system as such. To the contrary, Notice 16 was adopted in response to the requests of this petitioner and other foreign and domestic manufacturers as an alternative to the premature adoption of passive restraints and as a means to accomplish a greater rate of seat belt usage.⁴  The only objection raised to the requirements of Notice 16 is the requirement that the front outboard seat belt systems meet the injury criteria of Standard 208 rather than the traditional seat belt requirements of Standard 209. Since the challenged amendment requires the same test procedure for the front outboard positions which was found lacking in objectivity in Chrysler, the parties recognize that Chrysler is dispositive of this case. There is a disagreement, however, as to the proper disposition of this case in light of the conclusions reached in the passive restraint litigation.

Ford contends that the standard, in the absence of the injury criteria, provides no method of testing the belts at the front outboard positions, and that therefore the entirety of Notice 16 must be remanded to the Agency for the promulgation of objective testing procedures. The Agency's position is that the standard provides that belts which are not required to meet the injury criteria must meet the requirements of Standard 209, and that this applies to the front outboard positions in the situation of invalidated injury criteria.

The genesis of the contested requirement is helpful to a resolution of the disagreement. Notice 13, 36 F.Reg. 19266, in which the interlock option was first proposed, provided that belts at the front outboard positions were to meet both the requirements of Standard 209 and the injury criteria of Standard 208. In Notice 16, the Agency amended the proposal in response to comments received from manufacturers to provide that the belts which are required to meet the injury criteria need not meet the requirements of Standard 209. In the comments accompanying the issuance of Notice 16, the Agency noted:

". . . it has been decided to accept the suggestion made in a number of comments that conformity to Standard No. 209 should not be required of belt systems that meet the injury criteria. Accordingly, those options that require a seat belt to meet the injury criteria (S4.1.1.2, S4.1.2.2, and S4.1.2.3) are amended by limiting the application of Standard No. 209 to belts other than those meeting the injury criteria." 37 F.Reg. 3911.

Although the specified test device was declared invalid in the passive restraint litigation, all other portions of Standard 208 were found valid and remain in effect, providing, of course, that they do not depend for their effectiveness upon the use of the anthropomorphic test device. Similarly, the only requirement of Notice 16 that is invalid is the requirement that the front outboard seat belts be tested with the injury criteria. All other portions of Notice 16 are valid and remain in effect; this includes that part of the amendment that requires that seat belts with ignition interlocks be provided for all front seat occupants. This Court is reticent to remand a part of the standard which has not heretofore been challenged, either during the course of the Agency's rule-making process or in the petition for review herein considered.

In light of the material contained in the record concerning the projected effectiveness of ignition interlocks as a means of increasing seat belt usage, and in light of the comments of this petitioner and others to the Agency urging the adoption of such a requirement, and in light of the fact that no objection has been or is now made to the requirement of the ignition interlock system itself, this Court will not remand this part of the Standard to the Agency for further consideration. Such an order would serve only to delay the effective date of the ignition interlock system, the validity of which is not in issue, and would effectively invalidate the present requirement that the system be installed as of August 15, 1973. Mr. Justice Cardozo once observed: "Expediency may tip the scales when arguments are nicely balanced," Woolford Realty Co. v. Rose, 286 U.S. 319, 330, 52 S. Ct. 568, 570, 76 L. Ed. 1128 (1932), and pragmatism in the present situation, which concededly approaches equipoise, may well be warranted.

Even in the wake of Chrysler, the remainder of Standard 208 must be presumed valid insofar as is reasonable. Accordingly, we conclude that in the absence of valid injury criteria, all seat belt systems installed in accordance with the requirements of Standard 208, including the front outboard systems, must meet the requirements of Standard 209, and so hold. Accordingly, no remand is necessary, and the petition for review is denied.

Since the disposition of this case is governed by the conclusions reached in Chrysler, we do not reach a consideration of and we reserve decision on the remaining contentions of the petitioner, including the contentions that injury criteria are inappropriate for the testing of seat belts and that the Agency's decision is in excess of its statutory authorization to act only to meet the need for motor vehicle safety, as defined in terms of unreasonable risks.

The petition for review is denied.