ID: 2353y

Mr. Patrick J. Higgins
Andreini & Company
770 The City Drive South, Suite 1300
Orange, CA 92668

Dear Mr. Higgins:

This responds to your letter on behalf of Skill-Craft Enterprises, which is designing and manufacturing a fiberglass seat to be installed in the bed of a pickup truck. You were interested in learning which of the Federal motor vehicle safety standards would apply to this product. You indicated that you believed Standards No. 207, 209, 210, and "possibly 302" would apply to this seat.

I am enclosing a December 1, 1986 interpretation letter from this office to Mr. Scott Muirhead, which explains the application of NHTSA's safety standards and regulations to seats in the cargo bed of a pickup. You will see that this letter specifically addresses the applicability of Standards No. 207, 208, 209, and 210 to such seats. I am also enclosing an information sheet for new manufacturers that briefly describes our laws and regulations, and explains how to get copies of those laws and regulations.

You also asked whether Standard No. 302, Flammability of Interior Materials, would apply to your client's product. That standard applies only to new vehicles in areas located in the "occupant compartment air space," which the standard defines as "the space within the occupant compartment that normally contains refreshable air." I am enclosing a copy of a February 15, 1983 interpretation to Mr. H. Nakaya in which the agency explained that the determination of whether any particular area is within the "occupant compartment air space" turns on whether people can and do ride in the area in question. Given that your client's product is a seat, it is designed and intended so that people will ride in it. Hence, the area around the seat would be an area where people could and would ride, and would be considered within the "occupant compartment air space." Section S4.1 of Standard No. 302 expressly lists seat cushions, seat backs, and seat belts as items of equipment that must meet the flammability resistance requirements of section S4.3. Based on the above, we conclude that a seat installed as original equipment in the bed of a pickup would be required to comply with Standard No. 302.

If the seat will be sold exclusively as an item of aftermarket equipment, Standard No. 302 would not directly apply to it. Nevertheless, other Federal laws indirectly affect your client's manufacture and sale of such a seat in the aftermarket. Section 108(a)(2)(A) of the Act states: "No manufacturer, distributor, dealer, or motor vehicle repair business shall knowingly render inoperative ... any device or element of design installed on or in a motor vehicle or item of motor vehicle equipment in compliance with an applicable Federal motor vehicle safety standard ..." This section requires manufacturers, distributors, dealers or motor vehicle repair businesses (i.e., any person holding him or herself out to the public as being in the business of repairing motor vehicles or motor vehicle equipment for compensation) to ensure that any aftermarket installations of additional equipment or vehicle modifications its addition would not negatively affect the compliance of any component or design on a vehicle with applicable Federal safety standards. Section 109 of the Act specifies a civil penalty of up to $1,000 for each violation of this "render inoperative" provision.

Your client should also be aware of an additional aspect of the Safety Act. As a manufacturer of motor vehicle equipment, your client is also subject to the requirements in sections 151-159 of the Safety Act concerning the recall and remedy of products with defects relating to motor vehicle safety. I have enclosed an information sheet that briefly describes those responsibilities. In the event that your client or NHTSA determines that the seats contain a safety related defect, it would be responsible for notifying purchasers of the defective equipment and remedying the problem free of charge.

If you have any further questions or need additional information on this subject, please feel free to contact Marvin Shaw of my staff at this address or by telephone at (202) 366-2992.

Sincerely,

Stephen P. Wood Acting Chief Counsel

Enclosures

/ref:302 d:2/l4/90

ID: 23544rack

Mr. Christopher P. Reilly
8657 Langholm Rd.
El Cajon, CA 92021





Dear Mr. Reilly:

This responds to your letter seeking information on regulations that govern the design, manufacture, installation and use of a cargo rack for SUVs. I regret the delay in responding.

You state that the cargo rack contains a 2 ft x 4 ft area elevated by posts at about the same height as the back of the rear seat. The cargo rack will attach to existing cargo tie downs located on the floor behind the rear seat. Items may be stored on the rack's main storage area or on shelves attached to the posts. Further, you indicate that storage of items in the rack's main area may block the view through the rear window and that you are concerned that items tied down in the rack may become loose in an accident and strike a passenger in the back of the head. Because you do not mention whether the cargo rack will be made available for installation as original equipment and/or marketed as an aftermarket product for installation on used vehicles, we will address both types of installations.

By way of background information, the National Highway Traffic Safety Administration (NHTSA) has the statutory authority to issue Federal motor vehicle safety standards (FMVSSs) applicable to new motor vehicles and new items of motor vehicle equipment. NHTSA, however, does not approve motor vehicles or motor vehicle equipment or pass on the compliance of a vehicle or item of equipment outside the context of an actual enforcement proceeding. Instead, Federal law establishes a self-certification system under which motor vehicle and equipment manufacturers themselves certify that their products comply with all applicable standards. The following represents our opinion regarding the applicability of our laws and standards to your product based on the facts set forth in your letter.

Installation in New Vehicles

A manufacturer of a new vehicle must certify that its vehicle meets all applicable Federal motor vehicle safety standards. Any person who manufactures or sells a new vehicle which does not conform to any safety standard is subject to civil penalties and recall action under our statute.

NHTSA has issued Standard No. 111, Rearview Mirrors, to establish performance and location requirements for rearview mirrors in each new motor vehicle. Under this standard, your cargo rack may or may not be permitted, depending on the particular vehicle in which the cargo rack would be installed. "Inside" rearview mirrors are required for "multipurpose passenger vehicles, trucks, and buses, other than school buses, with a GVWR [gross vehicle weight rating] of 4,536 kg or less," under one alternative of the standard (paragraph (a) of S6.1). If a vehicle manufacturer met Standard No. 111's requirements by way of an inside rearview mirror, a rack could not obstruct the view of the inside rearview mirror (i.e., the mirror must continue to provide the scope of view required by the standard). Inside rearview mirrors are not required for multipurpose passenger vehicles, trucks, and buses with a GVWR greater than 4,536 kg. The installation of your rack in those vehicles would not interfere with the operation of a required "inside" rearview mirror and thus would not create a noncompliance with Standard No. 111. However, the vehicles will continue to be subject to the other rearview mirror requirements of sections S6, S7 and S8 of Standard No. 111 and all other relevant requirements.

The vehicle manufacturer also needs to certify that the vehicle, with the installed cargo rack, conforms to other applicable FMVSSs, including FMVSS No. 201, Occupant Protection in Interior Impact, and No. 202, Head Restraints. I have enclosed an information sheet that describes how you can obtain copies of these and other FMVSSs. You should review the standards to see how they would affect the installation of the cargo rack in a new vehicle.

As an Aftermarket Item of Equipment

We would classify the cargo rack as an item of motor vehicle equipment regulated by NHTSA. Our statute defines "motor vehicle equipment" in 49 U.S. Code (U.S.C.) 30102(a)(7)(B) in relevant part as any system, part, or component "soldas an accessory or addition to a motor vehicle." An item of equipment is an accessory if it meets the following criteria:

a. A substantial portion of its expected uses are related to the operation or maintenance of motor vehicles; and

b. It is purchased or otherwise acquired, and principally used by ordinary users of motor vehicles

After reviewing your letter, we conclude that the cargo rack is an accessory. It was designed with the expectation that a substantial portion of its use will be with motor vehicles. Further, your description of the cargo rack makes it clear that the cargo rack is intended to be purchased and principally used by ordinary users of motor vehicles to store cargo inside the rear cargo area of the vehicle.

While a cargo rack is an item of motor vehicle equipment, NHTSA has not issued any FMVSSs establishing performance standards directly applicable to this product if it were sold directly to consumers for installation on used vehicles. However, the manufacturer is subject to the requirements of 49 U.S.C.30118-30120, which set forth the notification and remedy procedures for products with defects related to motor vehicle safety. Thus, if NHTSA or the manufacturer determines that the product contains a safety-related defect, the manufacturer is responsible for notifying purchasers of the defective equipment and for remedying the problem free of charge. (Note that this responsibility is borne by the vehicle manufacturer in cases in which the product is installed on a new vehicle by or with the express authorization of that vehicle manufacturer.)

The installation of a cargo rack by a commercial entity is also subject to other restrictions. Our statute at 49 U.S.C.30122 provides that a manufacturer, distributor, dealer, or vehicle repair business may not knowingly "make inoperative" any device or element of design installed on or in a motor vehicle in accordance with any FMVSS. Therefore, the cargo rack could not be installed by any of those entities if such use would adversely affect the capability of a vehicle to comply with the performance requirements of FMVSS No. 111, as well as the compliance of a vehicle with any other FMVSS. You should carefully review the FMVSSs to determine whether installation of your cargo rack would affect a vehicle's compliance with the standards. ⁽¹⁾

Finally, we agree with your concern that items tied down in the rack may become loose in a crash and strike vehicle occupants. It might be advisable to include in your design means to prevent occupants from being struck by flying cargo in crash situations.

States have the authority to regulate the use and licensing of vehicles operating within their jurisdictions and may have restrictions on cargo racks. Therefore, you should check with the Department of Motor Vehicles in any state in which the equipment will be sold or used.

I hope this information is helpful. For your further information, I am enclosing a fact sheet we prepared entitled Information for New Manufacturers of Motor Vehicles and Motor Vehicle Equipment. If you have any questions or need additional information, feel free to contact Nancy Bell of my staff at (202) 366-2992.

Sincerely,

John Womack
Acting Chief Counsel

Enclosure
ref:111
d.2/26/02






---




¹ The "make inoperative" provision does not apply to equipment attached to or installed on or in a vehicle by the vehicle owner. However, NHTSA urges vehicle owners not to degrade the safety of any system or device on their vehicles.

ID: 2354y

Richard A. Kulics, Esq.
401 S. Woodward - Suite 370
Birmingham, MI 48009

Re: Request for Ruling Imported Vehicles - FTZ

Dear Mr. Kulics:

This is in reply to your letter of December 5, l989, to the attention of Taylor Vinson of this Office, on behalf of your clients Liphardt Associates and Pierre Enterprises, Inc.

You have informed us that Liphardt is an Independent Commercial Importer (ICI) under EPA regulations. The vehicles it imports are modified by Pierre. Both entities have the identical mailing address. This location is within a Foreign Trade Zone. You have also informed us that Liphardt/Pierre (L/Pe) will apply for status as a Registered Importer under 49 CFR Part 592. It is the practice of L/PE to transport its nonconforming vehicles directly from the vessel into the Zone, to perform conformance modifications in the Zone, and then file a consumption entry, post bond, and submit conformance documentation to DOT. After DOT and EPA have released the vehicle, it is delivered to its owner.

You have requested that L/Pe "be allowed to submit conformity packets to your agency prior to the submission of the consumption entry package, i.e., upon submission of the FTZ entry [transportation of the vehicle into the Zone], so that it may enter the vehicle as 'conforming.'" Under this plan, the current method of operation would remain much the same, except that L/Pe would prepare an HS-7 Declaration Form at the time the vehicle is transported into the Zone. This Form would be submitted to DOT along with a conformity package, for review and release, if appropriate. Then, when the actual consumption entry is filed, the vehicle would be entered as "conforming" merchandise. The purpose of this request "is to eliminate the costs associated with posting a special bond purely for DOT purposes", and to speed "up the process of importation, thus reducing the costs associated with storage." As you state, "What L/Pe proposes is that it be allowed to close out the obligation while the vehicle is still in the custody of the Customs Service."

In substantiation of your request, you have called our attention to certain provisions of l9 CFR Part l46 Foreign Trade Zones, specifically section 146.2 outlining the obligations of Customs' supervision, section 146.10 providing for examination of merchandise necessary to facilitate the proper administration of any law that Customs is authorized to enforce, and section 146.31 stating that admission of merchandise into a Zone is subject to the regulations of the Federal agency concerned.

Under the facts as stated in your letter, we have concluded that your clients must provide a DOT bond under the National Traffic and Motor Vehicle Safety Act of l966 (l5 U.S.C. 1381 et seq.), as amended by the Imported Vehicle Safety Compliance Act of l988 (P. L. 100-562), but that there is no legal reason why its obligations to DOT may not be satisfied before the conformed vehicle enters the customs territory of the United States.

As we understand it, the Foreign Trade Zone Act of l934 (l9 U.S.C. 81a et seq.) is intended to establish areas into which merchandise may be imported temporarily, "without being subject to the customs laws of the United States", before being sent "into customs territory of the United States" (section 81c(a)). A Zone therefore is a legal fiction established solely for the administration of customs laws. Section 2(a) of the l988 Act repealed the authority of the Customs Service over the importation of vehicles subject to the l966 Act. Accordingly, the new regulation governing the importation of nonconforming motor vehicles on and after January 31, l990, 49 CFR Part 591, is not a "customs law" (unlike the existing regulation which is a joint regulation with DOT that specifically applies to importation into the customs territory of the United States (19 CFR 12.80(b)).

In pertinent part, section 108(a)(1)(A) of the l966 Act (l5 U.S.C. 1397(a)(10(A)) prohibits the importation "into the United States" of nonconforming vehicles. Although a Zone is not generally considered customs territory, in this instance they are both within the United States, and an arrangement which defines the "United States" as comprising both customs territory and foreign trade zones has been upheld as valid (Klockner, Inc., v. United States (1984) 8 CIT 3, 590 F. Supp. 1266). Under section 108(c)(1) of the l966 Act, as amended (l5 U.S.C. 1397(c)(1)), a nonconforming vehicle "shall be refused entry into the United States" unless "an appropriate bond" has been furnished to ensure that the vehicle will be brought into conformity within a reasonable time after such importation."

Therefore, because 49 CFR Part 591 is not a "customs law", any distinction between a Zone and customs territory is legally irrelevant for purposes of the l966 Act. Further, because both a Zone and the customs territory are physically within the boundaries of the United States, an importation of a nonconforming vehicle into either a Zone or the customs territory requires an accompanying DOT conformance bond.

Nevertheless, the l988 Act does not impose any restrictions upon either DOT or your clients that prohibits them from entering conformed vehicles into customs territory. However, we see the procedure a bit differently than the one you discussed. The HS-7 Form and its accompanying bond must be completed not later than the admission of the vehicle into the Zone. Customs retains its role of sending these documents to DOT. When conformance work is completed, L/Pe provides certification to DOT. Because of the current low volume of nonconforming imports, we anticipate that our review will be completed within two weeks of receipt of the certification. If the certification is acceptable, the bond is released, and L/Pe may then enter the vehicle as no longer subject to DOT conformance regulations (or, as you express it, "conforming merchandise"). Thus, L/Pe will be able to close out its obligation while the vehicle remains in the custody of Customs, even though it is not freed from the bond requirement.

As a final comment on the time factor, we intend to require complete documentation only for the initial make, model, and model year (assuming that the initial submission is acceptable). Although L/Pe must keep verification records on each vehicle it conforms, certifications subsequent to an initial submission need not be accompanied by documents, and could be transmitted by FAX. As we see it, these simple certifications would not require extensive review, improving our ability to respond in a more timely manner.

Sincerely,

Stephen P. Wood Acting Chief Counsel

/ ref:59l d:2/22/90

ID: 2355y

George F. Ball, Esq.
Legal Staff
General Motors Corporation
New Center One Building
3031 West Grand Boulevard
P.O. Box 33122
Detroit, MI 48232

Dear Mr. Ball:

This is in response to your letter of January 23, 1990 asking for an interpretation of Standard No. 201, Occupant Protection in Interior Impact (49 CFR 571.201). Specifically, you asked whether the requirements of S3.3 of Standard No. 201, which apply only to "interior compartment doors," are applicable to a portion of a new cupholder design now being developed by GM.

At the outset, I would like to note that section 114 of the National Traffic and Motor Vehicle Safety Act of 1966 (15 U.S.C. 1403) makes a vehicle's manufacturer responsible for certifying that the vehicle complies with all applicable provisions of the Federal motor vehicle safety standards. For this reason, NHTSA has no authority to approve, endorse, or offer assurances of compliance for any vehicle designs or features. NHTSA will, however, tentatively state our opinion of how the safety standards would apply to a vehicle design or feature. It is important that the manufacturer be aware that these tentative statements of agency opinion are based entirely on the information presented to the agency by the manufacturer, and that the agency opinions may change after NHTSA has had an opportunity to examine the vehicle itself or otherwise acquire additional information.

With those caveats, I believe that S3.3 of Standard No. 201 would not apply to your cupholder design, as explained more fully below. In your letter, you stated that General Motors plans to offer a vehicle with a cupholder permanently installed in the console assembly between the driver and right front passenger positions. The cupholder assembly would include a pivot, which would allow the cupholder to recess into the console when it is not needed. When the cupholder is recessed, the bottom face of the cupholder assembly would be flush with the console assembly. I concur with your opinion that the bottom face of the cupholder would not appear to be covered by section 3.3 of Standard No. 201, because that bottom face does not appear to be an "interior compartment door" as that term is defined at 49 CFR 571.3.

The term "interior compartment door" is defined at 49 CFR 571.3 as "any door in the interior of the vehicle installed by the manufacturer as a cover for storage space normally used for personal effects." According to your letter, when the bottom of the cupholder is facing the driver and passenger (which you state is the only configuration in which it could be considered a cover), there is no storage space for personal effects.

The agency has made clear that the term "interior compartment door" does not refer to every door that covers a compartment that could potentially be used as a storage space for personal effects. For example, ash trays and spare tire compartment doors in station wagons are capable of being used as a storage space for some personal effects. However, the preamble to the final rule that added S3.3 to Standard No. 201 expressly stated that S3.3 did not apply to the covers for ash trays and spare tire compartment doors in the Standard. 33 FR 15794 (October 25, 1968). Additionally, the agency has stated in previous interpretations that S3.3 of Standard No. 201 does not apply to doors in the interior of a vehicle that do not cover a storage space for personal effects. Hence, the door to a fuse box in the interior of a vehicle was said not to be subject to S3.3 in a July 3, 1984 letter to Mr. Bruce Henderson, and the outside surface of a fold-down table was said to be not subject to S3.3 in a January 31, 1986 letter to Mr. Russ Bomhoff.

Applying this reasoning to your new cupholder design, we would tentatively conclude that, when the cupholder is retracted, the bottom face of the cupholder is not an interior compartment door subject to S3.3 of Standard No. 201. I do not believe that the compartment that would be covered by the bottom face of the cupholder when it is retracted would be a storage space for personal effects. Even if the compartment were capable of being used as a storage space for personal effects, it would not have been installed by the manufacturer for that purpose. Therefore, the bottom face of the cupholder would not be considered an "interior compartment door" within the meaning of the definition of that term in 49 CFR 571.3, and would not be subject to the requirements of S3.3 of Standard No. 201.

Sincerely,

Stephen P. Wood Acting Chief Counsel

/ref:201#571 d:2/27/90

ID: 23564-3.drn

[          ]

Dear [          ]:




This responds to your request for an interpretation of Standard No. 114, Theft Protection. You asked about the standard in connection with your companys keyless entry system ("Smart-Key"). I apologize for the delay in our response. Your "Smart-Key" system, and the system you describe as the "similar system," will be discussed in light of Standard No. 114s requirements.

Before I address your questions, I note that in e-mail messages and a telephone conversation, you requested confidential treatment for the identity of your company and for yourself. I agree to keep your name and the name of your company confidential. All information in bold brackets [      ] will be kept confidential from the public. You have provided a two page e-mail attachment (without any information identifying you or your company), in which you described your keyless entry system and posed questions regarding the system and Standard No. 114. This two page attachment will be made publicly available.

Please note that the National Highway Traffic Safety Administrations (NHTSAs) procedure for submitting requests to treat business information as confidential is set forth at 49 CFR Part 512 Confidential Business Information. I request that, in the future, when you submit information that you consider to be confidential, you follow Part 512s procedures.

By way of background, the National Highway Traffic Safety Administration (NHTSA) does not provide approvals of motor vehicles or motor vehicle equipment. Under 49 U.S.C. Chapter 301, manufacturers are required to certify that their vehicles and equipment meet applicable requirements.I note that since Standard No. 114 applies to motor vehicles, it is the motor vehicle manufacturer, rather than the supplier of particular equipment, that must certify compliance with the standard. The following represents our opinion based on the facts you provided in your letter and in a March 13, 2002 telephone conversation with Edward Glancy and Dorothy Nakama of my staff. Our letter addresses some or all of the specific issues you raised as necessary to provide this interpretation. If we have not addressed an issue, you should not assume that we have concurred with a position you have expressed on that issue.

YOUR SYSTEM

Your companys "Smart Key" system

The following describes how your "Smart Key" system functions. It is based on the description you provided, and also reflects our telephone conversation. If any part of our understanding is incorrect, please let us know, because our letter is based on these facts.

The "Smart Key" is a small device, normally carried in the driver's pocket, which could be provided in credit-card format or some other specific shape. It is encoded with more than 1000 codes.

Access to the car

The vehicle electronics automatically unlock the doors when the key holder utilizes a handle-trigger on the door handle, if the key is located in an external detection area (1 to 2 meters around the car) on the same side as the triggered door, and if the key code is correctly identified. The car establishes with the "Smart Key" device a communication outside the car to identify the key code.

To start the engine

If the "Smart Key" is inside the car, and recognized after a successful identification, the engine can be started by turning an ignition switch knob. At the same time, the locking device is unlocked (steering column and engine immobilizer are unlocked).

(In a similar system, if the "Smart Key" is inside the car, and recognized after a successful identification by the car, the engine can be started by pressing a push button with a pedal condition (i.e., clutch pedal or brake pedal pushed), or gear lever in park position.)

To stop the engine

The driver can switch off the engine without conditions, even if the gear lever is not in the park position. However, if the gear lever is not in the park position, the locking device (the steering column lock and the immobilizer system) remains unlocked.

(In a similar system, the engine can be stopped by pushing a push button if the gear lever is in the park position and with a car speed of zero.)

Locking of the locking device

The locking device locks (steering column lock and electronic immobilizer are locked and presumably the transmission is locked in the park position) after the engine is switched off when the driver turns the ignition switch to the stop position and if the gear lever is in the park position. The driver cannot turn to the stop position of the ignition switch knob if the gear lever is not in park. Removal of the electronic code is accomplished automatically by locking of the locking device.

(In a similar system, the locking device is locked after the engine is switched off.)

During driving

The removal of the "Smart Key" from the running vehicle would have no effect on the vehicle's operation until the engine is stopped. After the engine was stopped, it would be impossible to start up the engine without a key: either the "Smart Key" or "Traditional Key."

Buzzer

If the door is opened with the engine running, a warning buzzer does not sound. If the door is opened after stopping the engine and without locking of the locking device (without locking of the steering wheel) the buzzer warns the driver. If the door is opened after stopping the engine and locking of the locking device (locking of the steering wheel and presumably locking the transmission in park), the buzzer does not sound.

Traditional key

A traditional key (mechanical code plus transponder electronic code) can be used to unlock/lock the doors and to start up the engine instead of the "Smart Key" device.

DISCUSSION

In an interpretation letter of January 30, 1997, to an unnamed company, we stated that Standard No. 114 would permit a keyless entry system activated by an electronically coded card (similar to your companys system). We have followed that interpretation letter in addressing your keyless entry system, but have modified it with respect to the discussion of S4.5 of the standard.

Effect of Key Removal. At S4.2, Standard No. 114 states in part that each vehicle shall have a key-locking system which, whenever the key is removed, prevents (a) the normal activation of the vehicles engine or motor; and (b) either steering or forward self-mobility of the vehicle or both. A vehicle with your companys system would be permitted by S4.2 because the absence of the "key" (the code) prevents normal activation of the engine and steering of the vehicle. This would also appear to be the case for the similar system you mention.

Locked in Park. S4.2.1(a) of Standard No. 114 states that (with certain exceptions not relevant here) the key-locking system required by S4.2 in each vehicle which has an automatic transmission with a "park" position shall, when tested under the procedures in S5.2, prevent removal of the key unless the transmission or transmission shift lever is locked in "park" or becomes locked in "park" as the direct result of removing the key. Your company's "Smart Key" system would be permitted by S4.2.1(a) because removal of the "key" (identification code in the system) is accomplished only when the locking device locks (steering column lock and immobilizer are locked), which happens only when the gear lever is in park, and presumably locks the transmission in park. This would also appear to be the case for the similar system you mention, assuming that removal of the "key" (identification code in the system) is accomplished only when the locking device locks. This is because the locking device only locks when the engine is switched off, and the engine can only be switched off if the gear lever is in park.

Consequences of Deactivating Engine or Motor.S4.3 states that, except when an automatic transmission vehicle is in "park," the means for deactivating the vehicles engine or motor shall not activate any device installed pursuant to S4.2(b) to prevent the vehicles steering or forward self-mobility or both. Your company's "Smart Key" system would be permitted by S4.3 because when the engine is switched off in situations where the gear lever is not in park, the locking device (the steering column lock and the immobilizer system) remains unlocked. The similar system you mention would also be permitted by S4.3, since the engine can only be switched off if the gear lever is in park. Thus, the similar system has no means for deactivating the vehicle's engine or motor except when the automatic transmission is in park.

Combinations. S4.4 of Standard No. 114 states that for each vehicle type manufactured by a manufacturer, the number of different combinations of the key-locking systems required by S4.2 shall be at least 1,000, or a number equal to the number of vehicles of that type manufactured by the manufacturer, whichever is less.Your letter indicates that your company's "Smart Key" device is encoded with more than 1000 codes.As such, a vehicle with your system would appear to satisfy S4.4.

Driver Warning. S4.5 of Standard No. 114 states that a warning to the driver shall be activated whenever the "key" required by S4.2 has been left in the locking system and the drivers door is opened, except: (a) after the key has been manually withdrawn to a position from which it may not be turned; (b) when the key-locking system is in the "on" or "start" position; or (c) after the key has been inserted in the locking system and before it has been turned.

You state that if the engine is stopped by switching to a position that does not engage the locking devices, a warning buzzer sounds if the drivers door is opened. This is analogous to the situation in which a conventional key is left in the "off" position of the ignition switch, and S4.5 requires activation of the warning if the drivers door is opened.

You further state that, for a vehicle equipped with your system, if the door is opened after stopping the engine and locking of the locking device (locking of the steering wheel) the key code is removed automatically, and the buzzer does not sound. This is analogous to the removal of the conventional key from the "lock" position and the buzzer need not sound. To the extent this interpretation is inconsistent with the January 30, 1997 interpretation letter, the earlier letter is superseded.

We observe that if the "Smart Key" device remained in the car, e.g., in the pocket of a jacket laying on the seat, a person would need only turn the ignition switch knob to start the engine. It appears to us that, with systems of this kind, there would be, in the absence of some kind of a warning, a greater likelihood of drivers inadvertently leaving a "Smart Key" device in the car than with a traditional key. This is because the driver must physically touch a traditional key, unlike the "Smart Key" device, as part of turning off the engine. You and/or the vehicle manufacturer may wish to consider whether there are any practicable means of reducing the possibility of drivers inadvertently leaving their "Smart Key" devices in the car.

I hope this information is helpful. If you have any further questions, please feel free to contact Dorothy Nakama of my staff at (202) 366-2992.

Sincerely,

Jacqueline Glassman
Chief Counsel

ref:114
d.8/15/02

ID: 23604

Dietmar K. Haenchen, Process Leader
Safety Affairs and Vehicle Testing
Volkswagen of America
3800 Hamlin Road
Auburn Hills, MI 48326





Dear Mr. Haenchen:

This responds to your letter asking whether a voluntarily-provided interior trunk release on the rear door of a hatchback triggers a requirement in our door lock standard for a locking mechanism. The answer is yes.

The rear door of a hatchback is excluded from the requirements of Federal Motor Vehicle Safety Standard No. 401, "Interior Trunk Release." Standard No. 401 requires passenger cars with a trunk compartment to have an interior trunk release. In response to petitions for reconsideration of the final rule establishing the standard, we amended the standard to specifically exclude passenger cars with a back door (66 FR 43113,

August 17, 2001). We defined the term "back door" as: "a door or door system on the back end of a passenger car through which cargo can be loaded or unloaded. The term includes the hinged back door on a hatchback or a station wagon." (Emphasis added.) Thus, the hinged back door on a hatchback is not required to have an interior "trunk release" mechanism.

You wish to voluntarily provide an interior release mechanism, but ask whether the mechanism would be required to have a locking mechanism under our door lock standard, Standard No. 206. S4.4.2 of Standard No. 206 states:

Each back door system equipped with interior door handles or that leads directly into a compartment that contains one or more seating accommodations shall be equipped with a locking mechanism with operating means in both the interior and exterior of the vehicle. When the locking mechanism is engaged, both the inside and outside door handles or other latch release controls shall be inoperative.

The question you present is whether the interior release is an "interior door handle" under Standard No. 206. The standard does not define the term "interior door handle." However, the phrase "door handles or other latch release controls" in the last sentence of the passage quoted above from S4.4.2 shows that "door handles" includes "door latch release controls" generally. See also the preamble of the final rule extending the requirements of Standard No. 206 to back doors (60 FR 50124, 50130, September 28, 1995):

NHTSA acknowledges that the back doors of some vehicles so equipped [with an interior door handle] are designed for loading and unloading cargo rather than passengers. Nevertheless, sometimes those doors are also used for ingress and egress of back seat occupants. Therefore, if doors designed primarily for loading and unloading cargo lack an interior door handle, no door lock is required. If an interior door handle is present, this rule requires a means for making the door handle (a door release mechanism) inoperative when the locking mechanism is engaged. (Emphasis added.)

We recognize the opposing purposes of Standard No. 206 and No. 401 regarding containment of vehicle occupants. Standard No. 206's intent is to retain occupants. It requires a door lock on the back door of hatchbacks with interior door handles or that leads directly into a passenger compartment to reduce the likelihood of occupants being ejected through the door in a crash. The agency estimated in the September 1995 final rule that the back door of hatchbacks is about three times as likely to open as one of the front side doors and seven to eight times as likely to open as one of the rear side doors in a crash, resulting in 147 fatalities and 189 serious injuries annually from ejections through the back door of hatchbacks, tailgates, and other back doors. Conversely, Standard No. 401's intent is to facilitate occupant release. Yet, the Expert Panel on Trunk Entrapment, which was formed to study the problem of trunk entrapment, did not address hatchbacks, nor were there any data presented to the panel indicating that persons had died as a result of their being inadvertently or intentionally locked in the rear of hatchbacks. Based on this, we conclude that Standard No. 206's interest in occupant containment should prevail.

In sum, we appreciate that you want to voluntarily provide a safety device on your hatchbacks. Since, on hatchbacks, the interior release is not required by Standard No. 401, the hatchback does not have to meet that standard's requirements. However, back doors are regulated, and Standard No. 206 requires a back door with an interior door handle (or door release mechanism or latch release control) to have a locking mechanism.

If you have any further questions, please contact Mr. Dion Casey in my office at (202) 366-2992.

Sincerely,

John Womack
Acting Chief Counsel

ref:401
d.3/4/02

ID: 23606

Roger C. Fairchild, Esq.
Vehicle Regulatory Consulting
330 West Main St.
Purcellville, VA 30132





Dear Mr. Fairchild:

This is in response to your letter of September 7, 2001, in which you sought an interpretation of Standard No. 201, Occupant Protection in Interior Impact (49 CFR 571.201). Specifically, you ask a number of questions regarding the applicability of S5.3 of Standard No. 201 to the covers of certain compartments and storage areas within the interior of a prototype vehicle. Your letter notes your belief that the determination of whether an interior compartment door is subject to the requirements of S5.3 requires a two-step inquiry. The first step is the determination of whether the particular door falls within the definition of an "interior compartment door" as set forth in 49 CFR 571.3(b). The second step involves an inquiry as to the location of the cover and whether it is located in a console, instrument panel, seat back or side panel. Based on your understanding of this two-step process, you ask a number of questions about the definition of "interior compartment door" and which areas of the vehicle interior are encompassed by the terms "console" and "instrument panel" for the purpose of S5.3.

At the outset, I would like to note Part 576 of volume 49 of the Code of Federal Regulations (49 CFR 567) makes a vehicle's manufacturer responsible for certifying that the vehicle complies with all applicable provisions of the Federal motor vehicle safety standards. For this reason, the National Highway Traffic Safety Administration (NHTSA) has no authority to approve, endorse, or offer assurances of compliance for any vehicle designs or features. NHTSA will, however, tentatively state our opinion of how the safety standards would apply to a vehicle design or feature. It is important that the manufacturer be aware that these tentative statements of agency opinion are based on the information presented to the agency by the manufacturer.

You ask several questions regarding the definition of "interior compartment door." Your first question asks if covers for compartments that are intended to hold vehicle equipment or disposable non-personal items such as ashes are not considered to be "interior compartment doors" and therefore not subject to S5.3, even if they are located on the instrument panel, console, seatback or side panel. You also ask if the question of whether a door is "installed by the manufacturer as storage space normally used for personal effects" is determined by the manufacturer's intent or some other indicia of use.

Standard No. 201 establishes performance requirements to reduce the risk of injury when occupants strike the interior of a vehicle during a crash. One of these requirements, found in S5.3 of Standard No. 201, specifies that doors to certain interior compartments must remain latched when subjected to certain forces that might be experienced in a crash. As S5.3 of Standard No. 201 applies only to "interior compartment doors" located in the instrument panel, console, seat back or side panels, the determination of whether a compartment cover is subject to the requirements of S5.3 of Standard 201 is determined by both the location of the cover and whether the cover fits within the definition of "interior compartment door."

NHTSA has repeatedly indicated that the term "interior compartment door" does not refer to every door that covers a compartment that could potentially be used as a storage space for personal effects. Section 571.3(b) defines "interior compartment door" as "any door in the interior of the vehicle installed by the manufacturer as a cover for storage space normally used for personal effects" (emphasis added). Therefore, ash trays and spare tire compartment doors, which are not normally used for storing personal effects, are not considered to be "interior compartment doors." 33 FR 15794 (October 25, 1968). Similarly, the agency has also indicated that a fuse box door (July 3, 1984 letter to Mr. Bruce Henderson), the outside surface of a fold-down table (January 31, 1986 letter to Mr. Russ Bomhoff), and a cupholder (February 27, 1990 letter to Mr. George F. Ball), are not "interior compartment doors."

A cover that is fitted over a compartment that would not normally be used to store personal effects is not an "interior compartment door." However, regardless of the manufacturer's intent in designing the compartment, the determination of whether a cover is an "interior compartment door" is controlled by whether the compartment would "normally" be used to store personal effects. If such an inquiry leads to the conclusion that the compartment would not normally be used for storage of such personal items, any cover would not be an "interior compartment door" for the purposes of Standard No. 201 regardless of its location.

Your letter also asks several questions regarding the meaning of the term "instrument panel." You ask what area of the dashboard structure is considered to be the "instrument panel" for the purposes of S5.3, and whether an "instrument panel" includes the upward facing top section, downward facing lower section and lateral portions of the dashboard.

As you correctly point out in your letter, the term "instrument panel" is not expressly defined in Standard No. 201. Your letter further indicates that NHTSA has, in an interpretation letter to the Blue Bird Company (January 31, 1982 letter to Thomas Turner), indicated that the instrument panel is the "panel below the windshield which is used to mount the speedometer, other gauges, etc." In that interpretation, NHTSA indicated that, for the purposes of S5.3 of Standard No. 201, the term "instrument panel" encompasses a greater area than that used to mount the speedometer and other gauges. For example, S5.1 of Standard No. 201 sets the head impact protection requirements for instrument panels. With the exception of certain zones set forth in S5.1.1, these performance requirements are applicable to the entire instrument panel. S5.1.1 sets out five exceptions to the instrument panel performance requirements because these areas are not likely to be struck by an occupant's head in a crash. For example, S5.1.1(c) provides that "areas closer to the windshield juncture than those statically contactable by the head form with the windshield in place" need not meet the impact requirements. Similarly, S5.1.1(e) provides that "areas below any point at which a vertical line is tangent to the rearmost surface of the panel" are also excluded.

As the agency indicated in the January 31, 1982 letter to the Blue Bird Company, it is important to note that when NHTSA first promulgated the interior door requirements of S5.3, a number of commenters suggested that S5.3 apply only to those interior compartment doors that were within the areas of the instrument panel subject to impact testing under S5.1. (30 FR 15794). NHTSA declined to incorporate this limitation into S5.3 on the basis that open interior compartment doors outside this area could still cause injury. This supports the agency's conclusion that any door located within the instrument panel is subject to S5.3, including those on the top surface of the panel immediately below the windshield and those on the lower portion of the instrument panel as well.

Your letter also contains a number of questions regarding "consoles." You ask how NHTSA defines what a "console" is, if a console includes any structure below the dashboard and between the seats and whether the padded cover on a center armrest is subject to S5.3. You also ask for guidance on how the agency differentiates between consoles and armrests for the purposes of S5.3.

The term "console" is not defined in Standard No. 201. In prior interpretations, the agency has described a "console" as a "low-lying structure mounted on the floor of and [lying] primarily between the vehicle seats" (October 27, 1986 letter to Mr. Tsuyoshi Shimizu). As this structure is mounted to the vehicle floor, it is both fixed and not attached to the seat or seat structure. In contrast to a "console" attached to the vehicle floor, an armrest is either attached to a seat or to a door panel. S5.5.2 of Standard No. 201 establishes performance requirements for folding armrests that either fold into a seatback or between two seatbacks. These folding armrests typically occupy space between two outboard seating positions, and any door incorporated into such an armrest is not subject to the requirements for compartment doors in S5.3 of the Standard.

A low-lying fixed structure mounted to the floor of a vehicle between two front bucket seats would be a "console" for the purposes of Standard No. 201. If a console incorporates a door with a top that closes over a storage space and this space would normally be used for the storage of personal effects, the cover would be an "interior compartment door." As such, this cover must meet the requirements of S5.3.

I hope this information is helpful. Please feel free to contact Otto Matheke of my staff at (202) 366-5253 if you have any additional questions or need some additional information on this subject.

Sincerely,

John Womack
Acing Chief Counsel

ref:201
d.10/18/01

ID: 23607.drn

Sean A. Cox, Manager
Xpress Rent-a-Car
2021 E. Platte Avenue
Colorado Springs, CO 80909





Dear Mr. Cox:

This responds to your September 6, 2001, letter requesting information about a "Federal law pertaining to the transportation of school age children." As explained below, Federal law restricts the types of new buses that you as a dealer, may lease or rent for school transportation purposes. However, it does not specify how school age children must be transported. Your state law (Colorado) regulates how school age children are to be transported.

The questions you raise have been addressed for the most part in the enclosed interpretation letter of May 9, 2001, to Collins Bus Corporation. In that letter, we explain dealers' responsibilities in selling new buses to day care centers that will be using the vehicles to transport children to or from schools.

The letter to Collins discusses prohibitions on sales of new buses that do not meet the National Highway Traffic Safety Administration's (NHTSA's) school bus standards. In addition, a dealer renting or leasing a new bus that will be "used significantly" to transport "preprimary, primary, and secondary" students to or from school or related events must be sure to rent or lease a new bus that is certified as meeting NHTSA's school bus standards. You ask whether a child care provider could lease or rent a vehicle on a short term basis to replace one of their existing vehicles that may be unavailable due to mechanical reasons. In our opinion, generally a short term lease or rental in this circumstance would be permitted, to meet this atypical situation. A lease or rental of a new nonconforming bus for regular transportation would not be permitted, however, since that bus would be used significantly to transport students.

We are not authorized to regulate the lease or rental of used buses to transport students. If the buses in your fleet were not new, Federal law does not regulate their lease or rental as vehicles used to transport school children.

Before you make decisions about leasing or renting used vehicles to day care centers, however, please consider our letter to Collins Bus. As explained in that letter, on June 8, 1999, the National Transportation Safety Board (NTSB) issued a special investigative report on nonconforming buses (copy of abstract attached). The NTSB issued the report after investigating in 1998 and 1999 four crashes in which 9 people were killed and 36 injured when riding in nonconforming buses. NTSB defined "nonconforming bus" as a "bus that does not meet the FMVSSs specific to school buses." Most of the victims, including eight of the fatalities, were children.

In the abstract of its report, the NTSB issued several Safety Recommendations, including the following that was directed to child care providers such as the National Association of Child Care Professionals, the National Child Care Association, and Young Mens' and Young Women's Christian Associations:

Inform your members about the circumstances of the accidents discussed in this special investigation report and urge that they use school buses or buses having equivalent occupant protection to school buses to transport children.

It is our opinion, and that of the NTSB, that school buses are one of the safest forms of transportation in this country. We therefore strongly recommend that all buses that are used to transport school children be certified as meeting NHTSA's school bus safety standards. In addition, NHTSA notes that using 15-person vans that do not meet NHTSA's school bus standards to transport students could result in liability in the event of a crash.

For your information, I am enclosing NHTSA's publication: "School Bus Safety: Safe Passage for America's Children." This brochure explains the safety enhancements of a school bus that makes school buses safer than 15-person vans. Please be advised that there are small school buses (under 10,000 pound gross vehicle weight rating) available that seat 15 or fewer children. Because it would not be cost effective to do so, we do not recommend retrofitting 15-person vans to meet school bus standards. I am also enclosing NHTSA's February 1999 "Guideline for the Safe Transportation of Pre-school Age Children in School Buses." This guideline establishes NHTSA's recommendations for how pre-school age children should be transported in school buses.

If you have any further questions about NHTSA's programs please feel free to contact Dorothy Nakama at this address, or at (202) 366-2992. Information about NTSB's nonconforming bus report is available from the NTSB's Public Affairs Office, at (202) 314-6100.






Sincerely,

John Womack
Acting Chief Counsel

Enclosures
ref:VSA#571.3
d.11/16/01

ID: 23642ogm

Albert G. Hayeck, Esq.
75 Bowker Street
Worcester, MA 01604





Dear Mr. Hayeck:

This responds to your letter seeking information about the labeling requirements in Federal Motor Vehicle Safety Standard No. 218, Motorcycle Helmets (49 CFR 571.218). Your letter correctly notes that section S5.6.1 of Standard No. 218 requires that motorcycle helmets be permanently labeled with a "DOT" mark as a certification that the helmet complies with Standard No. 218. Your review of Standard No. 218 indicates that the Standard does not prohibit owners of helmets from removing or obscuring the "DOT" certification mark. You ask if removing or covering the "DOT" certification mark is lawful.

By way of background information, the National Highway Traffic Safety Administration (NHTSA) has the authority under Chapter 301 of Title 49, U.S. Code, to establish Federal motor vehicle safety standards (FMVSSs) applicable to new motor vehicles and new items of motor vehicle equipment, including motorcycle helmets. This statute requires each person manufacturing, selling, or offering for sale any new vehicle, or item of equipment, covered by an FMVSS, to ensure that the new vehicle or equipment item is certified as meeting all applicable FMVSSs.

The "DOT" certification mark and other required labels provide important information regarding the helmet, including the fact that the manufacturer has certified that the helmet meets Standard No. 218. Section S5.6.1 of the Standard requires that each helmet be permanently and legibly labeled with certain warnings, identifying information, size, and the DOT certification mark. Any helmet intended for highway use, must, at the time of sale, be permanently marked as directed by S5.6.1. Our agency requires permanent marking of these items because we believe this information is needed for the life of the helmet.

After the first sale of the helmet to a consumer, Federal law does not impose any obligation on users of the helmet to maintain it in its original state of compliance. Thus, a consumer may remove or obscure the "DOT" marking without violating Federal law. However, removing or obscuring the certification mark or otherwise modifying the helmet to degrade its performance may have an impact on the user under state laws requiring the use of compliant helmets.

Section 30122(b) of Title 49 of the United States Code, 49 U.S.C. 30122(b), provides that manufacturers, distributors, dealers, or repair businesses may not knowingly make inoperative any part of a device or element of design installed in a vehicle or item of equipment under applicable Federal motor vehicle safety standards. In this case, the label on motorcycle helmets is a device or element of design installed on the helmet in compliance with Standard No. 218. If a manufacturer, distributor, dealer, or repair business removed that label, then those entities would be rendering the label inoperative, in violation of Federal law. While individual owners of motorcycle helmets are not subject to the "make inoperative" requirement, we urge owners of helmets not to degrade the safety of the equipment.

The individual States are free to establish requirements for the use of motorcycle helmets, including a requirement that helmets used on state highways comply with Standard No. 218. States can prohibit an owner from removing or covering the label or impose sanctions for the use of an unlabeled helmet.

I hope this information is helpful. If you have any further questions or need some more information on this subject, please do not hesitate to contact Mr. Otto Matheke of my staff at this address, or by telephone at (202) 366-2992.

Sincerely,

John Womack
Acting Chief Counsel

ref:218
d.3/14/02

ID: 23658

Mr. Kenji Tanabe
Director & General Manager
Mitsubishi Motors R&D of America, Inc.
1560 Wilson Boulevard, Suite 1200
Arlington, VA 22209

Dear Mr. Tanabe:

This responds to your letter of October 1, 2001, in which you ask about the lower anchorage marking requirements in S9.5(a) of Federal Motor Vehicle Safety Standard (FMVSS) No. 225, "Child Restraint Anchorage Systems" (49 CFR 571.225).

By way of background, Standard No. 225 requires vehicles to have child restraint anchorage systems and specifies requirements for those systems to ensure their proper location and strength for the effective securing of child restraints. The required child restraint anchorage system consists of two lower bars and a tether anchorage (S3 of Standard No. 225). The standard contains "marking and conspicuity" requirements for the lower bars of a child restraint anchorage system to increase the likelihood that consumers will know that a child restraint anchorage system is present in their vehicle and that they will remember to use it. The standard requires manufacturers to mark the vehicle seat back with a small circle where the bars are located (S9.5(a)), or to design a child restraint anchorage system such that the bars are visible (S9.5(b)).

Your question relates to S9.5(a) of the standard, which reads:

(a) Above each bar installed pursuant to S4, the vehicle shall be permanently marked with a circle:

(1) That is not less than 13 millimeters (mm) in diameter;

(2) Whose color contrasts with its background; and

(3) That is located on each seat back such that its center is not less than 50 mm and not more than 75 mm above the bar, and in the vertical longitudinal plane that passes through the center of the bar. (Emphasis added.)

The issue you raise in your letter is where the "seat back" begins for the purpose of marking the lower anchorages pursuant to S9.5(a). The term "seat back" is not defined in Standard No. 225. You state that Mitsubishi installs a type of deeply contoured, rounded seat in some of its vehicle lines. On these seats, the bottom cushion curves toward the vertical and supports a portion of an occupant's lower back before a separate "seat back" begins. You state that if the agency considers a portion of a vehicle seat to be the seat back solely by reference to a physical separation between the bottom seat cushion and the seat back, the circle markings would be more than 75 mm above the anchorage bars, which is not permitted by S9.5(a)(3). ⁽¹⁾

You suggest that the term "seat back" could be defined by reference to the point at which the bottom seat cushion curves toward the vertical direction, where it begins to support the occupant's lumbar area and lower back. You state that this would enable Mitsubishi to locate the circle markings within 75 mm of the lower anchorage bars. You believe that defining "seat back" in this manner would be logical, since the curved portion of the bottom seat cushion forms part of the occupant back support.

We agree with your position. With most seat designs, the bottom seat cushion is essentially horizontal and is a separate piece from the essentially vertical seat back. However, with the seat design you described, the separation is at a point above where the seat cushion begins to curve upward. The point at which the separation occurs, assuming there is one, should not be determinative as to what portion of the seat is the seat back. (Some vehicle seat assemblies might not have any separation between the seating surface and the seat back.) For the purpose of the marking requirements of S9.5(a) of Standard No. 225, we interpret the term "seat back" as comprising the portion of the seat that supports the occupant's lumbar area and back, including the portion of the seat that begins to angle vertically above the horizontal seating surface.

We note that Mitsubishi had raised this issue of the meaning of "seat back" in its April 19, 1999, petition for reconsideration of the final rule establishing Standard No. 225, a response to which is pending. We may amend S9.5(a)(3) of the standard to clarify the term "seat back" as used therein in accordance with the interpretation made today.

Please contact us if you have further questions.

Sincerely,

John Womack
Acting Chief Counsel

ref:225
d.1/14/02





---

1. ¹You also state that the lower anchorages themselves would have to be located in a place that will result in the child restraint being installed at a very awkward and unstable angle. Standard No. 225 has requirements that prohibit the placement of the lower bars in locations that would result in awkward child restraint installation. S15.1.2.2 of the standard (incorporating certain requirements that manufacturers may meet until 2004, as an alternative to those set forth in S9) specifies that the bottom surface of the child restraint fixture used to locate the lower anchorage bar must have attitude angles within certain limits. The angles are measured relative to the vehicle's horizontal, longitudinal and transverse reference planes). (Pitch must be 15 10, roll 0 5, and yaw 0 10.) We will be incorporating the pitch, roll and yaw requirements into S9 of the standard.