The opinion of the court was delivered by: WADDY
This matter is before the Court on plaintiff's motion for a preliminary injunction to require the defendants to immediately cause to be placed in the Department of Transportation's public Rules Docket 69-7 "all currently existing memoranda, slips of transmittal, notes, and any other documents, prepared from March 3, 1971, through September 29, 1971, of phone conversations, personal meetings, and any other contacts between officials of the Department of Transportation and officials in the Office of the President where such contacts related in whole or in part to automobile occupant restraint systems"; and, in any case where no such memoranda exists, to cause the appropriate officials of the Department of Transportation to prepare such memoranda describing the participants in and substance of all such contacts and place such prepared memoranda in the aforementioned Public Docket. The Court having considered the complaint; the affidavits, memoranda and exhibits in support of the motion and in opposition thereto; having heard the arguments of counsel and having examined, in camera, what defendants represent to be all the communications, memoranda and documents in their possession emanating from the Office of the President of the United States between March 3, 1971 and September 29, 1971 which relate to passive restraint systems for automobiles, makes the following findings of fact and conclusions of law.
1. Plaintiff, Ralph Nader, is a resident of the District of Columbia. Plaintiff, Center for Auto Safety, is a non-profit corporation chartered under the laws of the District of Columbia. Both plaintiffs desire to submit comments to the Department of Transportation, to be included in public Rules Docket 69-7, concerning the proposed amendment to Motor Vehicle Safety Standard No. 208, 49 C.F.R. 571.21, which amendment would have the effect of postponing the deadline by which automobile manufacturers would be required to install passive restraint systems in automobiles from the 1974 model year to the 1976 model year.
2. Defendant John Volpe is Secretary of the Department of Transportation and is the official to whom Congress has delegated responsibility for the administration of the National Traffic and Motor Vehicle Safety Act of 1966, 15 U.S.C. §§ 1381-1431, (hereinafter Motor Vehicle Safety Act) and for the promulgation of Federal Motor Vehicle Safety Standards. Defendant Douglas Toms is Director of the National Highway Traffic Safety Administration (NHTSA) and is the official to whom authority to administer portions of the Motor Vehicle Safety Act has been redelegated by defendant Volpe.
3. As an element of its injury prevention program, the NHTSA had adopted, as one of its first standards, a standard making seat belts mandatory in passenger cars manufactured after January 1, 1968. By mid-1969 there were strong indications that the use of seat belts by the motoring public was very low. Concurrently, the development of new types of restraints offered hope that vehicles could be equipped with restraints that did not depend on the active cooperation of occupants for their effectiveness. Accordingly, on June 26, 1969, the National Highway Safety Bureau (predecessor to the NHTSA) issued an advance notice of proposed rulemaking entitled "Inflatable Occupant Restraint Systems", in which the agency first announced that it was considering a motor vehicle safety standard that would require motor vehicle manufacturers to install some form of passive occupant restraint system in their vehicles by January 1, 1972 (34 Fed. Reg. 11148; July 2, 1969). This announcement invited interested persons to submit written data, views or arguments pertaining to the notice and stated that all comments would be available in the public Rules Docket for examination.
4. On March 3, 1971, a passive restraint amendment was annexed to Motor Vehicle Safety Standard No. 208 by the National Highway Traffic Safety Administration. (36 Fed. Reg. 4600; March 10, 1971).
Among other things the March 3, 1971, amendment provided that effective August 15, 1973, passenger car manufacturers will be required to provide one of two options for passive occupant protection which may be summarized as follows:
(1) A complete passive protection system that would protect occupants from serious injury in the crash at speeds up to 30 mph. Protection is required for occupant in all seating positions in frontal, angular, lateral and rollover crashes.
The March 3 rule also provided that beginning August 15, 1975, no manufacturer will be allowed to produce any passenger car that does not provide complete passive protection in all these modes at all seating positions.
5. On April 30, 1971, Chrysler Corporation filed a petition for review of the March 3, 1971, rule in the United States Court of Appeals for the Sixth Circuit. On May 3, 1971, similar petitions for review were filed in that Court by Jeep Corporation, American Motors Corporation, and Ford Motor Company. On May 7, 1971, the Automobile Importers of America (AIA), representing most of the foreign automobile manufacturers in the world, filed a similar petition for review of the March 3, 1971, rule in the United States Court of Appeals for the District of Columbia Circuit. On June 15, 1971, respondents filed a motion in the United States Court of Appeals for the District of Columbia Circuit requesting that the AIA petition for review be transferred to the United States Court of Appeals for the Sixth Circuit pursuant to the mandatory transfer provisions of 28 U.S.C. § 2112(a). The motion was granted and the case was transferred and filed in the Sixth Circuit on July 12, 1971. Subsequently, the Sixth Circuit consolidated all of these cases. On June 15, 1971, NHTSA filed a certified list of all the material constituting the administrative record on which the March 3, 1971, order was based, in the Sixth Circuit.
6. After issuance of the March 3, 1971 order a number of manufacturers, including each of the individual manufacturers before the Sixth Circuit and several member companies of the Automobile Importers of America filed administrative petitions for reconsideration. The issues on which reconsideration was requested included most prominently the sufficiency of the lead time necessary to implement a passive restraint system for the front seating positions. The petitions for reconsideration were placed in the public Rules Docket 69-7.
7. On September 29, 1971, in response to the manufacturers' petitions for reconsideration the National Highway Traffic Safety Administration issued two notices identified as Docket No. 69-7, Notice 12 and Docket No. 69-7, Notice 13 (36 Fed. Reg. 19254 and 36 Fed. Reg. 19266, October 1, 1971).
In Notice 12, the agency stated its disposition of the issues raised by the petitions for reconsideration of the March 3 rule and adopted minor amendments to the readiness indicator requirements, the frontal barrier crash requirement, the loading conditions for certain vehicles, and the positioning of the test dummy. Notice 12 does not adopt any amendments with respect to a postponement of the deadline for installation of passive restraint systems set forth in defendants' order of March 3, 1971. It does, however, clearly state the agency's intention to postpone the deadline and then refers to a simultaneously published notice of proposed rulemaking (Notice 13) which, if finally adopted, would permit a third restraint option between August 15, 1973, and August 15, 1975 thus effecting the agency's announced intention.
8. The option proposed in Notice 13 would consist of a seatbelt system with an ignition interlock feature that would prevent starting the vehicle's engine unless front seat occupants have operated their belts after being seated. The system would retain the belt warning system, and, in addition, would require the belt systems to meet the standard's injury criteria in a 30 mph head-on barrier crash. Notice 13 established November 2, 1971, as the date by which comments had to be received.
9. On October 8, 1971 plaintiffs requested by letter that: (1) defendants cause to be placed in the public Rules Docket 69-7 all currently existing memoranda or other documents reflecting the substance of contacts between officials of the Department of Transportation and any other person, including officials in the Office of the President, where such contacts related to the safety standard pertaining to passive occupant restraint systems published on March 3, 1971; and (2) in any case where there were contacts of the type described in paragraph (1) but no memoranda or other documents had been prepared and placed in the public Rules Docket 69-7, defendants cause to be prepared and placed in the public Rules Docket memoranda describing the substance of all such contacts.
10. By letters dated October 14, 1971 and October 15, 1971, defendants refused plaintiffs' formal request to complete the public Rules Docket as requested by plaintiffs, insisting that to accede to that request would require the recording of "intragovernmental communications" ...