Interpretation ID: nht71-5.48

DATE: 07/06/71

FROM: AUTHOR UNAVAILABLE; Douglas W. Toms; NHTSA

TO: Ford Motor Company

TITLE: FMVSR INTERPRETATION

TEXT: On June 29, 1971, you submitted on behalf of Ford Motor Company an Amendment to Petition for Reconsideration of Federal Motor Vehicle Safety Standard No. 208. In this amendment of your petition you seek a stay of the effective date of the rule and the reopening of the administrative proceedings on the grounds that (1) Ford might make "specific responses, rebuttals and comments" regarding materials not placed in the docket until after issuance of the rule in question, and (2) Ford's own continuing work has resulted in material information which it could not until quite recently have made available. You request that the "amendment be decided" concurrently with Ford's petition for reconsideration.

As you know, the safety standards are promulgated under informal rulemaking procedures of Section 4(b) of the Administrative Procedure Act (5 U.S.C. @ 553(c)). Automotive Parts & Accessories Association, Inc. v. Boyd, 407 F.2d 330 (D.C. Cir. 1968). Under informal rulemaking procedures, an agency "may act not only on the basis of the comments received in response to its notice of rulemaking, but also upon the basis of information available in its own files, and upon the knowledge and expertise of the agency." California Citizens Band Association v. United States, 375 F.2d 43, 54 (9 Cir., 1967). Under section 105(a)(1) of the National Traffic and Motor Vehicle Safety Act, judicial review of our rulemaking takes place on the basis of the "record," which consists of all relevant materials available to the agency and considered by it in connection with the action in question. The certified list of the record in this matter filed in the Sixth Circuit is composed of just such a record. We emphatically deny that the assembling of the record in this manner constitutes "stacking" of

2 the record. On the contrary, we maintain that such action is entirely proper, a regular adjunct to informal rulemaking conducted in accordance with 5 U.S.C. 553 of the Administrative Procedure Act, and is consistent with action taken in previous similar judicial review proceedings involving this agency.

Under the informal rulemaking procedures utilized by the NHTSA, the "record" is never really closed. When a final rule is issued, petitions for reconsideration may be filed pursuant to 49 CFR 553.35. When a final decision is issued on petitions for reconsideration, further submissions are placed in the public docket and are treated as petitions to establish, amend, or repeal a rule pursuant to 49 CFR 553.31. Thus, Ford and any other interested person are free at all times to submit relevant information to any rulemaking docket; and these submittals are regularly brought to the attention of concerned personnel for appropriate action.

Under 49 CFR 553.35(b) of the Administration's procedural rules, a petitioner for reconsideration may submit additional facts if he states the reason why they were not presented within the prescribed period. In your request to amend your petition for reconsideration you did state two such reasons (the same reasons advanced in support of the merits of your amendment): (1) the addition of materials to the docket by NHTSA, and (2) the possession by Ford of new material information only recently made available. Although we cannot agree with your contention that the Administration acted in a manner inconsistent with informal rulemaking procedures, you are nevertheless free to submit at this time whatever information you think is relevant to the record, including information only recently made available through Ford's continuing research. Accordingly, your June 29, 1971, amendment to your petition for reconsideration will be accepted as such and considered along with the petition pursuant to your request. If you have other material you wish to submit in addition to that already submitted under date of June 29, 1971, please submit it as soon as possible. Under informal rulemaking procedures this Administration is eager to receive such additional information and strongly urges Ford to make a prompt submission of any such material. Material submitted after a decision has been made on the petitions for reconsideration will, of course, be placed in the public docket pursuant to 49 CFR 553.31 of the Administration's procedural rules.

Ford Motor Company

June 29, 1971

Douglas W. Toms Administrator National Highway Traffic Safety Administration

Dear Mr. Toms:

Amendment to Petition for Reconsideration of Federal Motor Vehicle Safety Standard No. 208 -- Occupant Crash Protection -- Passenger Cars, Multipurpose Passenger Vehicles, Trucks and Buses

We are transmitting herewith for your information a copy of an amendment to the Ford Motor Company's pending Petition for Reconsideration in the above matter. The amendment has been formally filed in NHTSA's docket. In our view, the points discussed in this document raise grave questions as to the procedure followed in promulgating the occupant crash protection standard.

As you will note from the first page of the enclosure, Ford requests, because of the urgent matters set forth therein, that the amendment be decided with utmost dispatch, concurrently with Ford's pending Petition for Reconsideration.

Respectfully submitted,

J. C. Eckhold Automotive Safety Director