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No. 98-1811: Geier v. American Honda Motor Co., Inc.

No. 98-1811

In the Supreme Court of the United States


ALEXIS GEIER, ET AL., PETITIONERS

v.

AMERICAN HONDA MOTOR COMPANY, INC., ET AL.



ON WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT



BRIEF FOR THE UNITED STATES
AS AMICUS CURIAE SUPPORTING AFFIRMANCE






SETH P. WAXMAN
Solicitor General
Counsel of Record
DAVID W. OGDEN
Acting Assistant Attorney
General
LAWRENCE G. WALLACE
Deputy Solicitor General
MATTHEW D. ROBERTS
Assistant to the Solicitor
General
DOUGLAS N. LETTER
KATHLEEN MORIARTY MUELLER
Attorneys
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217
NANCY E. MCFADDEN
General Counsel
PAUL M. GEIER
Assistant General Counsel
for Litigation
FRANK SEALES, JR.
Chief Counsel
National Highway Traffic
Safety Administration
Department of
Transportation
Washington, D.C. 20590




QUESTION PRESENTED

Whether the National Traffic and Motor Vehicle Safety Act of 1966, 15 U.S.C.1381 et seq. (1988), or Federal Motor Vehicle Safety Standard 208, 49 C.F.R.571.208 (1987), preempts a state common law tort claim that an automobilemanufactured in 1987 was defectively designed because it lacked an airbag.




In the Supreme Court of the United States


No. 98-1811

ALEXIS GEIER, ET AL., PETITIONERS

v.

AMERICAN HONDA MOTOR COMPANY, INC., ET AL.



ON WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT



BRIEF FOR THE UNITED STATES
AS AMICUS CURIAE SUPPORTING AFFIRMANCE



INTEREST OF THE UNITED STATES

The National Traffic and Motor Vehicle Safety Act of 1966, 15 U.S.C. 1381et seq. (1988), requires the Secretary of Transportation to promulgate motorvehicle safety standards. 15 U.S.C. 1392(a).1 This case concerns the preemptiveeffect of the Act and one of those standards, Federal Motor Vehicle SafetyStandard 208, 49 C.F.R. 571.208 (1987), which governs occupant crash protection.The Court's decision may affect the manner in which the Secretary exerciseshis regulatory authority under the Act.





STATEMENT

1. Congress enacted the National Traffic and Motor Safety Vehicle Act of1966 (Safety Act or Act) to "reduce traffic accidents and deaths andinjuries to persons resulting from traffic accidents." 15 U.S.C. 1381.The Act directs the Secretary of Transportation to "establish by ordermotor vehicle safety standards," 15 U.S.C. 1392(a), which are definedas "minimum standard[s] for motor vehicle performance or motor vehicleequipment performance," 15 U.S.C. 1391(2). Each standard "shallbe practicable, shall meet the need for motor vehicle safety, and shallbe stated in objective terms." 15 U.S.C. 1392(a).
The Safety Act contains a preemption provision, which provides in relevantpart:
Whenever a Federal motor vehicle safety standard established under thissubchapter is in effect, no State or political subdivision of a State shallhave any authority either to establish, or to continue in effect, with respectto any motor vehicle or item of motor vehicle equipment[,] any safety standardapplicable to the same aspect of performance of such vehicle or item ofequipment which is not identical to the Federal standard.
15 U.S.C. 1392(d).2 The Act also contains a provision, which petitionersrefer to as a savings clause, that describes the effect of compliance withfederal standards on common law liability. That clause provides that "[c]ompliancewith any Federal motor vehicle safety standard issued under this subchapterdoes not exempt any person from any liability under common law." 15U.S.C. 1397(k).3

2. Federal Motor Vehicle Safety Standard 208 regulates occupant crash protection.49 C.F.R. 571.208. The Secretary promulgated the version of Standard 208at issue in this case in 1984, after nearly 15 years of analysis, rulemaking,and litigation. See Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins.Co., 463 U.S. 29, 34-38 (1983); State Farm Mut. Auto. Ins. Co. v. Dole,802 F.2d 474, 477-478 (D.C. Cir. 1986), cert. denied, 480 U.S. 951 (1987).
Beginning with the 1987 model year (in which petitioners' car was manufactured),Standard 208 phased in a requirement that all new passenger cars have sometype of passive restraint system, i.e., a device that works automatically,without any action by the occupants, to help protect occupants from injuryduring a collision. Standard 208 required manufacturers to install sometype of passive restraint in at least 10% of their 1987 model year cars.49 C.F.R. 571.208.S4.1.3.1.4 The rule did not, however, require installationof any particular type of passive restraint. Instead, it gave manufacturersthe option to install automatic seatbelts, airbags, or any other suitabletechnology that they might develop, provided they met the performance requirementsspecified in the rule.
In adopting that standard, the Secretary expressly considered, and rejected,a proposal to require airbags in all cars. See 49 Fed. Reg. 29,000-29,002(1984). The Secretary reasoned that some people had serious concerns aboutairbags, and, if airbags were required in all cars, there could be a publicbacklash in which some people disabled the airbags, thus eliminating theirsafety benefit. Id. at 29,001. The Secretary also concluded that, althoughairbags and seatbelts together may provide greater safety benefits thanautomatic seatbelts alone, the effectiveness of an airbag system is "substantiallydiminished" if, as then often occurred, the occupant does not wearthe seatbelt. Id. at 28,996. Further, airbags were found "unlikelyto be as cost effective" as automatic seatbelts, and, because of thehigh replacement cost of airbags, some people might not replace them afterdeployment, leaving no automatic protection for front seat occupants. Id.at 29,001. Finally, little developmental work had been done to install airbagsin smaller cars, and the Secretary found that unrestrained occupants, particularlychildren, could be injured by the deployment of airbags in those cars. Ibid.
In light of those concerns, the Secretary determined that manufacturersshould have a choice of ways to comply with the passive restraint requirement.49 Fed. Reg. at 28,997. The Secretary anticipated that manufacturers wouldrespond to that choice by using a variety of passive restraints, includingairbags and automatic seatbelts. Although airbags were more expensive thanautomatic seatbelts, the Secretary expected manufacturers to install airbagsin some cars because one manufacturer had already begun to offer airbags,others had indicated plans to do so, and the rule provided an incentiveto use airbags and other non-belt technologies. Ibid.5
The Secretary concluded that installation of a variety of passive restraintsystems would have several safety advantages. The latitude provided theindustry would enable manufacturers to "develop the most effectivesystems" and would "not discourag[e] the development of othertechnologies." 49 Fed. Reg. at 28,997. In addition, the availabilityof alternative devices would enable the industry to "overcome any concernsabout public acceptability by permitting some public choice." Ibid.Customers who did not like airbags could buy a car with automatic seatbelts,and those who did not want the automatic belts could select a car with airbags.Ibid. Finally, widespread use of both airbags and automatic seatbelts was"the only way to develop definitive data" about which alternativeis more effective. Ibid.6

3. In January 1992, while driving a 1987 Honda Accord, petitioner AlexisGeier collided with a tree in the District of Columbia. Although she waswearing her seatbelt, she sustained "serious and grievous injuries."J.A. 2-5. Ms. Geier and her parents (also petitioners) sued respondent AmericanHonda Motor Company, Inc., in the United States District Court for the Districtof Columbia. Pet. App. 2 n.1. Alleging that their car was negligently anddefectively designed because it lacked a driver's-side airbag in additionto a manual seatbelt, they sought damages under the common law of the Districtof Columbia. Pet. Br. 12.
The district court granted respondent's motion for summary judgment. Pet.App. 17-20. The court held that petitioners' tort claims were expresslypreempted by the Safety Act because recovery on the claims would be "equivalentto a safety standard promulgated by the state legislature or a state regulatorybody." Id. at 19.

4. The court of appeals affirmed, but it employed a different preemptionanalysis. Pet. App. 1-16. The court acknowledged that the term "standard"in the Safety Act's preemption provision could be read in isolation to encompassrequirements imposed by common law tort verdicts, but the court recognizedthat the preemption clause must be interpreted in light of the entire SafetyAct, including the savings clause. Id. at 9-11. The court ultimately foundit unnecessary to resolve the express preemption question, because it concludedthat a verdict in petitioners' favor "would stand as an obstacle tothe federal government's chosen method of achieving the Act's safety objectives,and consequently, the Act impliedly pre-empts [the] lawsuit." Id. at12.
The court of appeals rejected petitioners' claim that this Court's decisionin Cipollone v. Liggett Group, 505 U.S. 504 (1992), prevents courts fromconducting implied preemption analysis when a statute has an express preemptionprovision and a savings clause. Pet. App. 12-13. The court of appeals notedthat this Court rejected a similar argument in Freightliner Corp. v. Myrick,514 U.S. 280 (1995), in which the Court engaged in implied preemption analysisafter concluding that the Safety Act did not expressly preempt the statetort claim at issue.
Applying implied preemption analysis, the court of appeals determined that"allowing liability for the absence of airbags would 'interfer[e] withthe method by which Congress intended to meet its goal of increasing automobilesafety.'" Pet. App. 14 (citation omitted). The court explained:
A successful no-airbag claim would mean that an automobile without an airbagwas defectively designed. Congress, however, delegated authority to prescribespecific motor vehicle safety standards to the Secretary of Transportation,who in turn explicitly rejected requiring airbags in all cars on the groundthat a more flexible approach would better serve public safety.
Ibid. (citation omitted). The Secretary had decided that a choice amongpassive restraint systems would advance public safety by "allowingconsumers to adjust to the new technology and by permitting experimentationwith designs for even safer systems." Id. at 15. The court thereforeconcluded that "allowing design defect claims based on the absenceof an airbag for the model-year car at issue would frustrate the Department'spolicy of encouraging both public acceptance of the airbag technology andexperimentation with better passive restraint systems." Ibid.




SUMMARY OF ARGUMENT

Petitioners' tort claims are not expressly preempted by the Safety Act,but they are impliedly preempted because they conflict with Standard 208.The Safety Act's preemption clause, 15 U.S.C. 1392(d), does not bar theclaims, because, particularly when read in conjunction with the Act's savingsclause, 15 U.S.C. 1397(k), it expressly preempts only prescriptive rulesaffirmatively promulgated by a state legislature or administrative agency.Although the reference in the preemption provision to a state "standard"could, in isolation, be understood to encompass common law tort rules, thatreading is not consistent with the remainder of the Act, including the expressreference to "common law" in Section 1397(k). Moreover, if Section1392(d) preempted all common law actions involving the same aspect of performanceas a federal safety standard, there would be no meaningful role for Section1397(k), which provides that compliance with a federal safety standard doesnot "exempt" a person from common law liability.
The Secretary of Transportation has therefore long taken the view that,although state legislatures and administrative agencies may not adopt asafety standard that differs from a federal standard governing the sameaspect of performance, state courts are not necessarily precluded from enteringtort judgments that a vehicle was defectively designed with respect to thataspect of performance. That interpretation could create some tension withinthe Safety Act, but any tension reflects a congressional compromise betweenthe interests in uniformity and in permitting States to compensate accidentvictims.
There is no danger that tort liability will undermine the Act, because commonlaw claims still must yield if they conflict with federal safety standards.Section 1397(k) does not preserve those claims because it neither refersto preemption nor states that common law liability is preserved even ifit conflicts with a federal standard. Congress legislates against the backgroundof the Supremacy Clause, which provides that state law yields if it conflictswith federal law. Thus, absent a solid basis to believe that Congress intendedto alter traditional preemption analysis, a statute should not be interpretedto permit state laws to operate in a manner that conflicts with federallaw.
Petitioners' claims conflict with Federal Motor Vehicle Safety Standard208, because a judgment for petitioners would stand as an obstacle to theaccomplishment of the full purposes and objectives of the Standard. In promulgatingthe version of Standard 208 that was in effect when petitioners' car wasmanufactured, the Secretary rejected a proposal to require airbags in allcars, because she determined that safety would best be served if manufacturerswere permitted at that time to install a variety of passive restraints.Petitioners' attempt to hold a manufacturer liable for failing to installa particular type of passive restraint- an airbag-would conflict with thatpolicy of encouraging a diversity of passive restraints. Petitioners' claimsare therefore preempted.




ARGUMENT

THE SAFETY ACT DOES NOT EXPRESSLY PREEMPT PETITIONERS' TORT CLAIMS, BUTTHE CLAIMS ARE IMPLIEDLY PREEMPTED BECAUSE A JUDGMENT FOR PETITIONERS WOULDFRUSTRATE THE PURPOSES OF STANDARD 208

In cases addressing whether the Safety Act or Standard 208 preempts tortclaims that an automobile is defectively or negligently designed becauseit does not contain an airbag, the parties, and some courts, have tendedto take an all-or-nothing view of preemption. Manufacturers have argued,and some courts have held, that Section 1392(d) preempts any common lawruling imposing a standard of care greater than the standard set by federallaw. See, e.g., Harris v. Ford Motor Co., 110 F.3d 1410, 1413-1415 (9thCir. 1997); Wood v. General Motors Corp., 865 F.2d 395, 412-413 (1st Cir.1988), cert. denied, 494 U.S. 1065 (1990). In contrast, plaintiffs haveargued (as do petitioners in this case) that a federal safety standard cannever preempt a tort claim because Section 1397(k) preserves all commonlaw actions.
We agree with neither approach. As this Court has explained, when a federalregulatory scheme preserves a role for state law, "conflict-pre-emptionanalysis must be applied sensitively * * * to prevent the diminution ofthe role Congress reserved to the States while at the same time preservingthe federal role." Northwest Cent. Pipeline Corp. v. State Corp. Comm'n,489 U.S. 493, 515 (1989).
The Secretary's longstanding view is that, read in the full statutory context,Section 1392(d) prohibits state legislative or administrative bodies fromprescribing safety standards different from those prescribed by the Secretarybut does not expressly preempt state tort claims. At the same time, theSecretary's view has been that Section 1397(k) does not preserve tort claimsthat actually conflict with a federal standard but rather provides thatcompliance with federal standards does not, in itself, immunize manufacturersfrom liability. See U.S. Amicus Br. at 16 & n.10, 28-29, FreightlinerCorp. v. Myrick, 514 U.S. 280 (1995); U.S. Amicus Br. at 7-16, Wood v. GeneralMotors Corp., 494 U.S 1065 (1990) (No. 89-46). That view is entitled to"substantial weight." Medtronic, Inc., v. Lohr, 518 U.S. 470,496 (1996); id. at 505-506 (Breyer, J., concurring).
Petitioners' tort claims that their vehicle was defectively and negligentlydesigned because it lacked an airbag are thus not expressly preempted bythe Safety Act. Their claims are, however, preempted by implication, becausea judgment for petitioners would frustrate Standard 208's policy of encouraginga variety of passive restraints.

A. The Safety Act Does Not Expressly Preempt Petitioners' Tort Claims.

In 1987, when petitioners' automobile was manufactured, the Safety Act'spreemption clause stated:
Whenever a Federal motor vehicle safety standard established under thissubchapter is in effect, no State or political subdivision of a State shallhave any authority either to establish, or to continue in effect, with respectto any motor vehicle or item of motor vehicle equipment[,] any safety standardapplicable to the same aspect of performance of such vehicle or item ofequipment which is not identical to the Federal standard.
15 U.S.C. 1392(d).7 It is our view that, read in its statutory context,this provision expressly preempts only prescriptive rules affirmativelypromulgated by a state legislature or administrative agency.
The term "standard," construed in isolation, could be read toencompass duties imposed by tort law. The common law of torts is sometimesdescribed in general terms as articulating "standards of care"to be applied on a case-by-case basis to assess a defendant's conduct andfault. See S. Rep. No. 1301, 89th Cong., 2d Sess. 12 (1966); cf. CSX Transp.,Inc. v. Easterwood, 507 U.S. 658, 664 (1993) (legal duties imposed by commonlaw fall within scope of "law, rule, regulation, order, or standardrelating to railroad safety"); San Diego Bldg. Trades Council v. Garmon,359 U.S. 236, 246-247 (1959). However, "standard" may also connotea prescriptive criterion, adopted in advance by responsible authorities,such as legislative or administrative bodies.8 Consideration of the SafetyAct as a whole confirms that this is the meaning of "standard"as used in the express preemption provision of Section 1392(d).
Unlike the statute in CSX, which preempted any relevant "law, rule,regulation, order or standard" (507 U.S. at 664), and thus reachedevery method by which a State can impose legal obligations, or the statutesin Cipollone v. Liggett Group, 505 U.S. 504 (1992), and Medtronic, Inc.v. Lohr, 518 U.S. 470 (1996), Section 1392(d) preempts only "safetystandard[s]," which is also the term used to describe the administrativerequirements promulgated by the Secretary. See 15 U.S.C. 1392(a). Moreover,Section 1392(d) uses the verb "establish" to describe the enactmentof the state standards it preempts, just as the Safety Act uses that verbto describe the promulgation of standards by the Secretary. See 15 U.S.C.1392.9 It is a "normal rule of statutory construction that identicalwords used in different parts of the same act are intended to have the samemeaning." Gustafson v. Alloyd Co., 513 U.S. 561, 570 (1995) (internalquotation marks omitted). Further, Section 1392(d) preempts standards establishedby a "State or political subdivision of a State," a phrase notnormally used to describe a court in a common law damages action. Finally,the Act defines standards as providing "objective criteria," 15U.S.C. 1391(2); see also 15 U.S.C. 1392(a) ("objective terms"),a description that would appear to exclude tort judgments, which are case-specificdeterminations of liability and damages.
Our interpretation of Section 1392(d) is further buttressed by the specificreference to common law in Section 1397(k), which states that "[c]ompliancewith any Federal motor vehicle safety standard issued under this subchapterdoes not exempt any person from any liability under common law."10The reference to common law liability in that Section suggests that Congresswould have referred to common law expressly in Section 1392(d) if it hadwanted to preempt all common law actions involving the same aspect of performanceas a federal safety standard. See, e.g., City of Chicago v. EnvironmentalDefense Fund, 511 U.S. 328, 338 (1994).
Finally, if Section 1392(d) preempted all common law tort actions involvingthe same aspect of performance as a federal safety standard, there wouldbe no meaningful role for Section 1397(k). That Section provides that compliancewith a federal safety standard does not "exempt" a person from,i.e., provide a defense to, common law liability. See 15 U.S.C. 1397(k);H.R. Rep. No. 1776, 89th Cong., 2d Sess. 24 (1966) ("compliance withsafety standards is not to be a defense or otherwise to affect the rightsof parties under common law"). There is, however, no need to negatea defense to claims that have already been preempted. And the only claimsthat would not be preempted under the broad reading of Section 1392(d) arethose that involve an aspect of performance not addressed by any federalstandard. Yet no court would otherwise have held that compliance with afederal standard provided a defense to such a suit. Congress could not haveintended the preemption provision to sweep so broadly that it renders superfluousanother provision in the Act. See, e.g., Gustafson, 513 U.S. at 574.11
For those reasons, the Safety Act prohibits state legislatures and administrativeagencies from adopting prescriptive safety standards that differ from afederal standard governing the same aspect of performance. It does not,however, necessarily preclude state courts from entering tort judgmentsthat a vehicle was defectively designed with respect to that aspect of performance.
That interpretation could create some tension within the Safety Act, becauseallowing manufacturers to be held liable for design defects in vehiclesthat comply with federal standards could run counter to Congress's interestin uniform performance standards. But any tension reflects a congressionalcompromise between the interests in uniformity and in permitting Statesto compensate accident victims, embodied both in the savings clause (15U.S.C. 1397(k)) and in the definition of a federal standard as a "minimumstandard" (15 U.S.C. 1391(2)). See Silkwood v. Kerr-McGee Corp., 464U.S. 238, 256 (1984). Moreover, tort suits can sometimes complement federalregulations and the Act's safety purpose by supplying manufacturers withan additional incentive to design a safe product. See Medtronic, 518 U.S.at 495. Finally, there is no danger that tort liability will impair thepurpose of the Act, because, as we explain below, common law claims stillmust yield if they conflict with federal standards. Cf. Silkwood, 464 U.S.at 256 (conflict preemption analysis still applies despite congressionalintent generally to preserve state tort actions).

B. Standard 208 Impliedly Preempts Petitioners' Tort Claims.

State law is impliedly preempted if it is "impossible for a privateparty to comply with both state and federal requirements * * * or wherestate law 'stands as an obstacle to the accomplishment and execution ofthe full purposes and objectives of [federal law].'" English v. GeneralElec. Co., 496 U.S. 72, 79 (1990) (citations omitted). Petitioners' tortclaims are preempted under that analysis. Holding respondent liable fornot installing airbags in petitioners' car would frustrate Standard 208'spolicy of encouraging a variety of passive restraints.
1. Contrary to petitioners' contention (Br. 25-41), the Safety Act's savingsclause, 15 U.S.C. 1397(k), does not foreclose implied preemption analysis.
a. As an initial matter, any suggestion (see Pet. Br. 37-38) that the presenceof a savings clause automatically precludes implied preemption analysisis incorrect. Savings clauses vary significantly in both phraseology andcontext, and, as with any other statutory provision, a court must ascertainthe meaning of the specific clause. Cf. Freightliner, 514 U.S. at 289.12Thus, this Court frequently conducts implied preemption analysis even thougha statute contains a savings clause. Indeed, the Court hesitates to reada savings clause to authorize claims that conflict with federal law. See,e.g., American Telephone & Telegraph Co. (AT&T) v. Central OfficeTelephone, 524 U.S. 214, 227-228 (1998); International Paper Co. v. Ouellette,479 U.S. 481, 494 (1987); Chicago & N.W. Trans. Co. v. Kalo Brick &Tile Co., 450 U.S. 311, 328 (1981); Texas & Pac. Ry. v. Abilene CottonOil Co., 204 U.S. 426, 446 (1907).
There is good reason for that approach. Conflict preemption arises directlyfrom the operation of the Supremacy Clause (U.S. Const. Art. VI, Cl. 2),rather than from a specific intent to displace state law. Thus, "[a]holding of federal exclusion of state law is inescapable and requires noinquiry into congressional design where compliance with both federal andstate regulations is a physical impossibility." Florida Lime &Avocado Growers, Inc. v. Paul, 373 U.S. 132, 142-143 (1963). Similarly,a state law that "stands as an obstacle to the accomplishment and executionof the full purposes and objectives of Congress" may be impliedly preemptedby a federal statute, even in the absence of any expression of intent tosupersede state law-making authority. See Jones v. Rath Packing Co., 430U.S. 519, 540-543 (1977). Those implied preemption principles are equallyapplicable to conflicts between state laws and federal regulations. Whetheror not Congress has addressed preemption, "[t]he statutorily authorizedregulations of an agency will pre-empt any state or local law that conflictswith such regulations or frustrates the purposes thereof." City ofNew York v. FCC, 486 U.S. 57, 64 (1988).
Because Congress enacts laws against the background of the Supremacy Clause,a court should assume that Congress believes that federal law (whether enacteddirectly by Congress or promulgated by a federal agency pursuant to statutoryauthorization) will prevail in any collision with state law. Of course,Congress is free to change the general rule and to allow state laws to operatein the place of conflicting federal law. But absent a "solid basis"for believing that Congress "intended fundamentally to alter traditionalpreemption analysis," John Hancock Mut. Life Ins. Co. v. Harris Trust& Sav. Bank, 510 U.S. 86, 99 (1993), a statute should not be interpretedto permit state laws to operate in conflict with federal law.13
The presumption that Congress does not intend to alter traditional principlesof conflict preemption is particularly appropriate when Congress enactsa statute such as the Safety Act that takes effect through administrativeaction. Congress did not itself prescribe motor vehicle safety standardsin the Safety Act. Instead, it delegated their promulgation (and revisionin light of experience) to the Secretary of Transportation. Thus, Congresscould not know what federal standards would be promulgated, and it couldnot predict whether or how States might adopt conflicting measures.
b. The Act's savings clause, Section 1397(k), provides no sound basis toconclude that Congress intended to alter the general rule that federal lawpreempts conflicting state law. Nothing in the text of the clause suggeststhat common law liability is saved from preemption even if it conflictswith a federal safety standard. Indeed, the language of the clause doesnot directly address preemption at all. It states that "[c]ompliancewith any Federal motor vehicle safety standard issued under [the SafetyAct] does not exempt any person from any liability under common law."15 U.S.C. 1397(k).14 As we have explained, the clause thus preserves commonlaw liability in the sense that a manufacturer cannot invoke its compliancewith federal law as an automatic defense against a claim that a car wasdefectively designed. See p. 14, supra. The clause does not, however, preservecommon law liability that conflicts with federal law.
The legislative history supports that interpretation. The provision originatedin the House of Representatives, and the House Report expressly states thatthe clause "establishes[] that compliance with safety standards isnot to be a defense or otherwise to affect the rights of parties under commonlaw." See H.R. Rep. No. 1776, supra, at 24 (emphasis added). Otherreferences in the legislative history are consistent with the understandingthat Section 1397(k) negates a substantive defense to liability and doesnot directly address preemption.15 Petitioners have not identified, andwe have not found, any statement in the legislative history that describesSection 1397(k) as preserving from preemption common law claims that conflictwith federal law.16
That interpretation of Section 1397(k) is reinforced by the fact that Congressdid not include the savings clause in the Section of the Safety Act thataddresses preemption (Section 103(d) (codified at 15 U.S.C. 1392(d))) butinserted it five sections later (Section 108(c) (codified at 15 U.S.C. 1397(k))).Thus, the structure of the Act confirms that the savings clause was notintended directly to address preemption.17
Our interpretation does not render the savings clause meaningless, as petitionerscontend (Br. 26-27). Petitioners' argument would have force only if thepreemption clause applied to common law claims, a reading that we reject.See ibid.; pp. 11-15, supra. Instead, our interpretation preserves an importantrole for Section 1397(k): In cases in which tort liability does not conflictwith a federal standard, Section 1397(k) makes clear that compliance withthe standard does not immunize a manufacturer from liability. Those casescan arise frequently, since state tort law does not conflict with a federal"minimum standard" (15 U.S.C. 1391(2)) merely because state lawimposes a more stringent requirement.18 For example, Federal Motor VehicleSafety Standard 105, 49 C.F.R. 571.105, which establishes requirements forbrake performance, does not require anti-lock brakes in addition to airbrakesin all vehicles, but the Secretary has not determined that requiring anti-lockbrakes would disserve safety. Section 1397(k) makes clear that compliancewith Standard 105 is not a defense to a common law tort claim that a vehicleis defectively designed because it lacks anti-lock brakes. Federal MotorVehicle Safety Standard 125, 49 C.F.R. 571.125, provides multiple optionsfor the design of reflective devices to warn approaching traffic of thepresence of a stopped vehicle, but the Secretary did not determine thatthe availability of options was necessary to promote safety. Section 1397(k)makes clear that compliance with Standard 125 is not a defense to a commonlaw tort claim that the reflective device is defectively designed unlessit uses one rather than another of those options. Thus, under our reading,Section 1397(k) has a sensible and important role.19
c. It is petitioners' reading of the clause as preserving tort claims evenif they conflict with federal safety standards that would have anomalousresults. The Safety Act's purpose "is to reduce traffic accidents anddeaths and injuries to persons resulting from traffic accidents," 15U.S.C. 1381, and Congress chose to carry out that purpose by empoweringthe Secretary to issue safety standards, 15 U.S.C. 1392, 1397. In some instances,such as the present case, holding a manufacturer liable for what a jurymight find to be a design defect would significantly impair the Secretary'sefforts to promote safety. Reading the savings clause to preserve that liabilityfrom preemption would impermissibly allow courts to second-guess the Secretary'sjudgment on matters "entrusted to [his] informed discretion" (KaloBrick & Tile Co., 450 U.S. at 330) and lead the Act "to destroyitself" (AT&T, 524 U.S. at 228).
For example, the Secretary has established windshield retention requirementsin Federal Motor Vehicle Safety Standard 212, 49 C.F.R. 571.212, in orderto prevent occupants from being thrown from their cars in crashes. If manufacturerscould be held liable under state tort law on a theory that it is a designdefect for windshields in those vehicles to be retained in a crash becausepassengers could be injured if they struck the windshields, it would beimpossible for manufacturers to comply with both the federal standard andthe duties imposed by state tort law. Thus, if the tort claims were notpreempted, the Secretary would have to rescind the federal standard, ormanufacturers would have to continue to produce windshields that do noteject in order to comply with Standard 212, while paying tort judgmentsbased on the theory that the federally mandated failure of the windshieldsto release in a crash rendered their cars defectively designed. There isno indication that Congress intended that startling result.

2. a. This case does not pose that type of conflict, but it poses a closelyrelated one. In issuing the version of Standard 208 in effect when petitioners'car was manufactured, the Secretary rejected a rule requiring airbags inall cars in favor of a rule encouraging manufacturers to offer a varietyof passive restraints. The Secretary determined-based on the history ofconsumer (and congressional) responses to passive restraint requirements-thatdiversity would best promote safety by helping to ensure public acceptanceof passive protection systems,20 encouraging the development of new andimproved technologies,21 and enabling the agency to acquire more data tomake regulatory decisions. See 49 Fed. Reg. at 28,987-28,997, 29,000-29,001.The Secretary also determined that the high replacement costs of airbagscould cause some consumers to decline to replace them after they were deployed,which would leave occupants without passive protection. Id. at 29,000-29,001.At the same time, the Secretary took steps that she reasonably determinedwould prompt manufacturers to install airbags in some of their cars. Seep. 5 & n. 5, supra. Standard 208 thus embodies the Secretary's policyjudgment that safety would best be promoted if manufacturers installed alternativeprotection systems in their fleets rather than one particular system inevery car.
That policy of affirmatively encouraging diversity would be frustrated ifmanufacturers could be held liable for not installing airbags. If, whenthe Secretary promulgated the rule in 1984, respondent and other manufacturershad known that they could later be held liable for failure to install airbags,the prospect of sizable compensatory and punitive damage awards, combinedwith the "centralized, mass production, high volume character of themotor vehicle manufacturing industry in the United States," S. Rep.No. 1301, supra, at 12, would likely have led them to install airbags inall cars. That outcome would have eliminated the diversity that the Secretaryfound necessary at that time to promote motor vehicle safety. At the veryleast, holding manufacturers liable for not installing airbags would have"interfere[d] with the methods by which [Standard 208] was designedto reach [its] goal." Ouellette, 479 U.S. at 494.22 Therefore, tortclaims like petitioners', which are based on the theory that a car (subjectto the version of Standard 208 in effect in 1987) was defectively designedbecause it lacked an airbag, "stand[] as an obstacle to the accomplishmentand execution of the full purposes and objectives of [Standard 208]."Hines v. Davidowitz, 312 U.S. 52, 67 (1941).
For those reasons, the Secretary has long taken the view that Standard 208preempts such claims.23 See U.S. Amicus Br. at 28-29, Freightliner Corp.v. Myrick, supra; U.S. Amicus Br. at 11-15, Wood v. General Motors Corp.,supra. That view is consistent with this Court's decisions holding thatwhen Congress or an agency determines that certain activity must be permittedin order to further the purposes of federal law, state law that would forbidthat behavior is preempted. See, e.g., Barnett Bank v. Nelson, 517 U.S.25, 31 (1996); Fidelity Fed. Sav. & Loan Ass'n v. De la Cuesta, 458U.S. 141, 154-155 (1982); Kalo Brick & Tile Co., 450 U.S. at 326.
The Secretary's view is entitled to substantial weight. "Because the[Department of Transportation] is the federal agency to which Congress hasdelegated its authority to implement the [Safety] Act, the [Secretary] isuniquely qualified to determine whether a particular form of state law 'standsas an obstacle to the accomplishment and execution of the full purposesand objectives of Congress.'" Medtronic, 518 U.S. at 496; id. at 506(Breyer, J., concurring) (administering agency has "special understandingof the likely impact of both state and federal requirements, as well asan understanding of whether (or the extent to which) state requirementsmay interfere with federal objectives").24
b. Petitioners mistakenly contend (Br. 16, 47-48) that their claims do notconflict with the Secretary's goal of allowing consumers to adjust to newairbag technology because tort liability would not lead manufacturers tochange their conduct. To the contrary, "[t]he obligation to pay compensationcan be, indeed is designed to be, a potent method of governing conduct."Garmon, 359 U.S. at 247. Indeed, petitioners' amici acknowledge that tortlaw "has a deterrence function." Nat'l Conf. of State Leg. Br.14; see Ass'n of Trial Lawyers Br. 10-12; Leflar Br. 12-13, 17; MissouriBr. 6, 13.25
Petitioners also argue (Br. 16, 47-48) that, if manufacturers had changedtheir conduct and installed airbags, they would have promoted public acceptanceof those devices. That may be true, but the Secretary reasonably determinedat that time that experience with a variety of passive restraints wouldbest promote public acceptance. In any event, speculation of the sort advancedby petitioners cannot displace the Secretary's reasonable conclusion thatclaims such as petitioners' would thwart the purposes behind Standard 208.26
Petitioners further err in contending (Br. 48-49) that their claims do notconflict with the goal of encouraging innovation and development of moreeffective restraint systems. Contrary to petitioners' suggestion, the questionis not whether tort liability in general stifles innovation but whetherliability for failure to install airbags would have done so. The Secretarydetermined that it would, because of the potential for large damage awardsand the "centralized, mass production, high volume character of themotor vehicle manufacturing industry in the United States," S. Rep.No. 1301, supra, at 12. This Court should decline petitioners' invitationto second-guess that reasonable determination.
Finally, petitioners argue (Br. 44-45) that their claims do not conflictwith Standard 208 because their car was manufactured during the phase-inperiod (when Standard 208 required the installation of some type of passiverestraint system in some, but not all, cars) and their car did not haveany passive restraint. Those facts do not, however, alter the preemptionanalysis, because petitioners do not claim that their car was defectivelydesigned because it lacked any type of passive restraint. Rather, they claimthat the car was defectively designed because it lacked one particular typeof passive restraint-an airbag. See Pet. i; Pet. Br. i. Thus, petitionerscannot prevail without a ruling that a car manufactured in 1987 was defectivelydesigned unless it had an airbag. For the reasons we have described, thatruling would conflict with the Secretary's determination that no particulartype of passive restraint should be required in any car because the useof a variety of passive restraints would best promote safety.27

CONCLUSION

The judgment of the court of appeals should be affirmed.

Respectfully submitted.


SETH P. WAXMAN
Solicitor General
DAVID W. OGDEN
Acting Assistant Attorney
General
LAWRENCE G. WALLACE
Deputy Solicitor General
MATTHEW D. ROBERTS
Assistant to the Solicitor
General
DOUGLAS N. LETTER
KATHLEEN MORIARTY MUELLER
Attorneys

NANCY E. MCFADDEN
General Counsel
PAUL M. GEIER
Assistant General Counsel
for Litigation
FRANK SEALES, JR.
Chief Counsel
National Highway Traffic
Safety Administration
Department of
Transportation




NOVEMBER 1999

1 The Act was recodified, along with other Acts governing transportation,on July 5, 1994, "without substantive change." Pub. L. No. 103-272,§ 1(a), 108 Stat. 745; see § 1(e), 108 Stat. 941-973 (codifyingnew 49 U.S.C. 30101 et seq.). Like the court of appeals and petitioners,we generally refer to the earlier version of the Act.

2 As we explain in note 1, supra, the Safety Act was amended and recodifiedin 1994 without substantive change. Section 1392(d) is now codified at 49U.S.C. 30103(b)(1) and states in relevant part:
When a motor vehicle safety standard is in effect under this chapter, aState or political subdivision of a State may prescribe or continue in effecta standard applicable to the same aspect of performance of a motor vehicleor motor vehicle equipment only if the standard is identical to the standardprescribed under this chapter.

3 Section 1397(k) is now codified at 49 U.S.C. 30103(e), which states: "Compliancewith a motor vehicle safety standard prescribed under this chapter doesnot exempt a person from liability at common law."

4 The percentages increased each year until the 1990 model year. Beginningin that model year, all new cars were required to have a passive restraintsystem. 49 C.F.R. 571.208.S4.1.3.2, 571.208.S4.1.3.3, 571.208.S4.1.4. Inresponse to the Intermodal Surface Transportation Efficiency Act of 1991,49 U.S.C. 30127, the Secretary has amended Standard 208 to require that,beginning in the 1998 model year, all new cars have an airbag at the driver'sand right front passenger's position. 49 C.F.R. 571.208.S4.1.5.3. Section30127(f)(2) provides that "[t]his section and the amendments to Standard208 made under this section may not be construed as indicating an intentionby Congress to affect any liability of a motor vehicle manufacturer underapplicable law related to vehicles with or without [airbags]."

5 In determining whether a manufacturer installed passive restraints inthe requisite percentage of its fleet during the phase-in period, Standard208 counted each car with an airbag or other non-belt passive restraintas the equivalent of 1.5 cars with automatic seatbelts. 49 C.F.R. 571.208.S4.1.3.4;49 Fed. Reg. at 29,000.

6 The Secretary also concluded that a gradual phase-in of the passive restraintrequirement would better serve the Act's safety purpose than a uniform implementationon a single future date. One purpose of the phase-in was to achieve theinstallation of passive restraints in some cars earlier than if a singleeffective date had been established, since it would have taken longer forall cars to be redesigned to include a passive restraint. The phase-in alsoincreased the likelihood that manufacturers would use airbags, which requireda longer lead time for redesign. Finally, the phase-in gave consumers andthe agency time to develop more information about the benefits of passiverestraints, thus enhancing the opportunity to overcome public resistance.49 Fed. Reg. at 28,999-29,000.

7 As explained at notes 1-2, supra, that provision has been amended andrecodified at 49 U.S.C. 30103(b)(1), but the amendments were not intendedto be substantive.

8 See Webster's Third New International Dictionary 2223 (1993) (def. 3a"something that is established by authority, custom, or general consentas a model or example to be followed: CRITERION, TEST;" def. 4 "somethingthat is set up and established by authority as a rule for the measure ofquantity, weight, extent, value, or quality").

9 The recodification uses "prescribe" to describe the enactmentof both state and federal standards. See 49 U.S.C. 30103(b)(1); note 2,supra. The use of "prescribe," which was not intended as a substantivechange from the use of "establish" in the former 15 U.S.C. 1392(d)(see note 1, supra), confirms that "standards" are limited topositive enactments.

10 As we have explained in notes 1 & 3, supra, this Section is now codifiedas amended at 49 U.S.C. 30103(e), but the changes were not intended to alterthe substance of the provision.

11 The only remaining role for Section 1397(k) would be to disavow congressionalintent to occupy the field and thereby displace all tort actions involvingmotor vehicle safety. But even that role is unnecessary because the preemptionprovision itself makes the lack of field preemption clear by permittingStates to establish standards identical to the federal standards and standardscovering aspects of performance not addressed by the federal standards.See 15 U.S.C. 1392(d).

12 Petitioners' reliance (Br. 38) on Malone v. White Motor Corp., 435 U.S.497 (1978), and California Federal Savings & Loan Ass'n v. Guerra, 479U.S. 272 (1987), is unpersuasive. In Malone, the issue was essentially fieldpreemption, and the Court held that two savings provisions (more broadlyworded than the one at issue here) indicated that the federal labor statutesdid not foreclose all state regulation of pension plans. 435 U.S. at 504-505.In Guerra, the plurality examined the savings provisions in the Civil RightsAct of 1964 and found that "Congress has indicated that state lawswill be pre-empted only if they actually conflict with federal law"(479 U.S. at 281); see also id. at 295-296 (Scalia, J., concurring).

13 Petitioners therefore err in suggesting (Br. 38-39) that the presumptionthat cautions against unduly broad construction of preemption provisionsfavors their reading of the savings clause. The presumption against preemptionof state laws that can coexist harmoniously with federal law is quite differentfrom a presumption in favor of preservation of state laws that conflictwith federal law.

14 The recodification substituted the modifier "a" for "any,"note 3, supra, without intending substantive change, note 1, supra. Thefact that Congress perceived no distinction between the use of the words"a" and "any" refutes the suggestion (see Pet. Br. 25)that the use of "any" was intended to signal a broad constructionof the clause.

15 See, e.g., S. Rep. No. 1301, supra, at 12 (explaining that federal standards"need not be interpreted as restricting State common law standardsof care" so that compliance with federal standards "would thusnot necessarily shield any person from product liability at common law")(emphasis added); 112 Cong. Rec. 14,230 (1966) (Sen. Magnuson) (also usingqualifier "not necessarily"); id. at 21,487 (Sen. Magnuson) (statingthat Senate conferees adopted the House provision, which "makes explicit,in the bill, a principle developed in the Senate report"); ibid. (explainingthat the provision does not prevent use of compliance or noncompliance as"evidence"); id. at 21,490 (Sen. Cotton) ("proof of compliance"may be offered "for such relevance and weight as courts and juriesmay give it"). Petitioners also rely (Br. 29) on the comments of awitness at House hearings who expressed the concern that manufacturers wouldrespond to lawsuits with a claim that "Our product meets Governmentstandards." Comments by members of the public reveal little about congressionalintent. In any event, the witness's concern was precisely that manufacturerswould use compliance with federal standards as a substantive defense toliability.

16 As noted in the text, the House Report states that "compliance withfederal standards is not to be a defense or otherwise to affect the rightsof parties under common law." H.R. Rep. No. 1776, supra, at 24 (emphasisadded). The context suggests that the italicized language refers to substantivechanges to common law rules rather than the possibility of preemption. Petitionersalso note (Br. 29) that Senator Magnuson stated that "[t]he commonlaw on product liability still remains as it was." That statement toois properly understood as explaining that the Act made no change to thesubstance of product liability law. Finally, petitioners rely (Br. 30-31)on a statement by Representative Dingell that "we have preserved everysingle common-law remedy that exists against a manufacturer for the benefitof a motor vehicle purchaser." 112 Cong. Rec. at 19,663. Mr. Dingellmade that statement to explain why he opposed an amendment that would havecriminalized willful violations of federal standards. Thus, the statementindicates only that common law actions based on the violation of federalstandards are preserved; it does not indicate that actions that would conflictwith federal standards are similarly preserved. See Wood, 865 F.2d at 407n.14.

17 The recodification included both provisions in 49 U.S.C. 30103 (entitled"Relationship to other laws") but in separate subsections, oneentitled "Preemption" (49 U.S.C. 30103(b)) and the other entitled"Common law liability" (49 U.S.C. 30103(e)).

18 We therefore agree with petitioners (Br. 46-47) that their claims arenot preempted merely because the Secretary made airbags one of several designoptions that manufacturers could choose. We disagree, however, with thecontention (Br. 44, 46) that the Secretary provided options because shehad no statutory authorization to do otherwise. The Secretary could haveimposed performance requirements that effectively required an airbag design.See Wood, 865 F.2d at 416-417; 112 Cong. Rec. at 21,487 (Sen. Magnuson)(performance standards expected to affect design). As we explain at pages23-26, infra, the Secretary chose not to do so in order to encourage theprovision of a variety of passive restraints, because she determined thatwould best promote safety. Petitioners' claims are preempted because theywould frustrate that policy judgment.

19 Petitioners contend (Br. 27 n.11) that there was no need for Congressto specify that compliance with federal standards is not a defense to commonlaw liability because every State already provided that compliance witha federal regulation is not a defense to a design defect claim. But evenif Congress understood that to be the common law rule, it could not be certainthat rule would not change. It therefore had ample reason to assure thatthe Safety Act would not be construed to create a new, automatic federaldefense.

20 In 1972, the Secretary adopted a rule requiring an interlock mechanismpreventing engine ignition unless manual seatbelts were fastened. That ruleprovoked a strong public reaction, prompting Congress to ban the interlockrequirement and impose procedural limitations on the agency's future effortsto require restraints other than seatbelts. Motor Vehicle and School BusSafety Amendments of 1974, Pub. L. No. 93-492, § 109, 88 Stat. 1482(codified at 15 U.S.C. 1401(b) (1988)). Given the public's adverse reactionto the interlock system, one factor the Secretary properly considered wasthe public's willingness to accept various passive restraint technologies.49 Fed. Reg. at 28,987. See Pacific Legal Found. v. DOT, 593 F.2d 1338,1345-1346 (D.C. Cir.), cert. denied, 444 U.S. 830 (1979). "Airbagsengendered the largest quantity of, and most vociferously worded, comments"during the rulemaking. 49 Fed. Reg. at 29,001. Commenters expressed concernsthat the chemical used to inflate airbags would be hazardous, that airbagswould deploy inadvertently and thereby cause injury, and that airbags wouldnot deploy during an accident. Ibid. Given those widespread concerns, theSecretary concluded that "[i]f airbags were required in all cars, thesefears, albeit unfounded, could lead to a backlash affecting the acceptabilityof airbags. This could lead to their being disarmed, or, perhaps, to a repeatof the interlock reaction." Ibid.

21 The Secretary determined that experience could show that automatic seatbeltswould be used more frequently than anticipated, and that manufacturers mightdevelop better and more acceptable automatic seatbelt systems. That developmentcould result in automatic seatbelts that were as effective as airbags butcost less. The Secretary also concluded that requiring airbags in all carswould unnecessarily stifle further innovation in occupant protection systems.49 Fed. Reg. at 29,001.

22 Petitioners mistakenly argue (Br. 16, 44) that their tort claims wouldnot interfere with the Secretary's chosen methods because, they assert (Br.2, 10-11), the Secretary intended tort liability to provide an incentivefor manufacturers to install airbags. In support of that assertion, petitionerscite the Secretary's statement that "potential liability for any deficientsystems" would discourage manufacturers from "us[ing] the cheapestsystem to comply with an automatic restraint requirement." 49 Fed.Reg. at 29,000. Petitioners misunderstand the Secretary's statement, whichmeant that manufacturers could face tort liability if they installed defectivepassive restraints. The Secretary did not mean that manufacturers couldbe held liable for choosing one type of passive restraint rather than another.Petitioners' amici (Missouri Br. 6; Ass'n of Trial Lawyers Br. 29) alsomistakenly rely on a public comment that the Secretary summarized in thedescription of comments in the preamble. 49 Fed. Reg. at 28,972. An agencydoes not endorse a comment merely by describing it.

23 Not all tort claims involving airbags would be preempted. A claim thata manufacturer installed an airbag that deployed improperly would not bepreempted because it would not frustrate the purposes of Standard 208. Evena claim that a manufacturer should have chosen to install airbags ratherthan another type of passive restraint in a certain model of car becauseof other design features particular to that car (see Nat'l Conf. of StateLeg. Br. 12) would not necessarily frustrate Standard 208's purposes.

24 Petitioners and their amici contend (Pet Br. 40-41, 49-50; Nat'l Conf.of State Leg. Br. 24-25; Leflar Br. 21-22) that there can be no impliedconflict preemption here because, when the Secretary adopted Standard 208,she neither plainly stated her intent to preempt tort liability nor providednotice and comment on the question. That contention rests on a misunderstandingof the basis for conflict preemption. Unlike field preemption, which ariseswhen agencies "intend for their regulations to be exclusive,"Hillsborough County v. Automated Med. Labs., Inc., 471 U.S. 707, 718 (1985),conflict preemption arises not from a specific intent to preempt but fromthe direct operation of the Supremacy Clause, which mandates that statelaw yield to federal law when they conflict. See p. 17, supra. Here, becauseconflict preemption is at issue, neither a statement of preemptive intentnor notice and comment on preemption was required. For the same reasons,the argument that the Secretary lacks authority to give any particular federalstandard preemptive force (Nat'l Conf. of State Leg. Br. 24) is wide ofthe mark. We do not contend that petitioners' claims in this case are preemptedbecause the Secretary decided that Standard 208 should preempt common lawliability. We contend that the claims are preempted because they conflictwith, and would frustrate implementation of, the policy judgment embodiedin the Standard that a choice of passive restraints would best promote safety.

25 That tort law also has other purposes (such as compensation) does notmean tort rules cannot conflict with federal law (Nat'l Conf. of State Leg.Br. 14-15; Leflar Br. 17-19). Conflict preemption flows from the effectsof the state law, not its purposes. See Gade v. National Solid Waste Mgmt.Ass'n, 505 U.S. 88, 105-106 (1992).

26 Petitioners suggest (Br. 16, 44) that a tort rule requiring airbags isconsistent with Standard 208 because the Secretary determined that airbagswere technologically the most effective passive restraint and provided anincentive to encourage manufacturers to install them (see note 5, supra).That contention overlooks the Secretary's conclusion that airbags wouldnot be effective in practice if they were installed in all cars becauseof the likely public reaction and potential safety dangers in small cars.It also overlooks the Secretary's determination that further research anddevelopment could lead to more cost-effective restraints. And it overlooksthe Secretary's reason for providing the incentive to install airbags-toensure a variety of passive restraints, not to maximize the number of carswith airbags.

27 This Court therefore need not decide whether Standard 208 would preempta claim that a car manufactured during the phase-in is defective if it lacksany passive restraint. The Secretary believes that it would preempt sucha claim, because the claim would frustrate the safety purposes for whichthe Secretary adopted the phase-in. See note 6, supra. A tort rule thateffectively required passive restraints in all cars during the phase-inwould likely have resulted in the nearly exclusive use of automatic seatbeltsrather than airbags and impeded the development of data about the benefitsof passive restraints that could help prevent a public backlash againstthem. See 49 Fed. Reg. at 28,999-29,000. Contrary to petitioners' contention(Br. 45), the fact that the claim involved a car manufactured in 1987 ora crash that occurred after the phase-in would not save the claim from preemption.The relevant question is not what manufacturers would do after the juryverdict in question but what they would have done when the relevant versionof Standard 208 was promulgated if they had anticipated that they couldlater be held liable.