[          ]

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

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

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

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

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

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.

Mr. Lance Tunick
Vehicle Services Consulting, Inc.
P.O. Box 23078
Santa Fe, NM 87502-3078

Dear Mr. Tunick:

This responds to your letter asking three questions about the pitch, roll, and yaw requirements of Federal Motor Vehicle Safety Standard (FMVSS) No. 225, "Child Restraint Anchorage Systems" (49 CFR 571.225). I apologize for the delay in responding. We have restated your questions below, followed by our answers. As discussed, we do not agree with your suggestion that the seat cushion can be removed to meet the standard's requirements.

BACKGROUND

Standard No. 225 requires each vehicle manufactured on or after September 1, 2002, to have a child restraint anchorage system at each of two forward-facing rear designated seating positions (see S4.4(a) and (b)). The anchorage system must meet certain configuration, strength and location requirements. S15.1.2.2 of Standard No. 225 specifies use of a "child restraint fixture (CRF)" to locate the lower bars of an anchorage system. That paragraph specifies that, with the CRF attached to the anchorages and resting on the seat cushion, the bottom surface of the CRF must have attitude angles within certain limits (with angles measured relative to the vehicle horizontal, longitudinal and transverse reference planes). (Pitch must be 15 10, roll 0 5, and yaw 0 10.) Vehicles manufactured before September 1, 2004, are permitted to meet the requirements of S15 of Standard No. 225 instead of the requirements of S9. We stated in a final rule responding to petitions for reconsideration that these pitch, roll and yaw requirements will be incorporated into the requirements of S9. 65 FR 46628.

S9.3 of Standard No. 225 requires that each vehicle and each child restraint anchorage system in that vehicle shall be designed such that the CRF can be placed inside the vehicle and attached to the lower anchorages of each child restraint anchorage system, with adjustable seats adjusted in a specified manner.

You state that it is difficult to fit the CRF and/or actual child restraints in the rear seats of some sports cars. You ask about the permissibility of installing a lower anchorage beneath each rear seat cushion. You state:

The child restraint anchorage system would be used by the vehicle owner by first removing the seat bottom cushion and storing it in the vehicle's luggage compartment. The CRF, during testing, and the child seat, during real-world operation, would then be installed so as to rest stably on the metal tub (floor) of the vehicle. The location of each anchorage would be labeled as required by FMVSS 225 and the method and need of removing the seat bottom would also be labeled (the seat bottom would most probably be attached by Velcro). * * *

DISCUSSION

Question 1: Is the Proposed System permissible if removal of the seat bottom cushion is necessary in order for the CRF to fit in the vehicle and/or to meet pitch, roll and yaw criteria?

We do not interpret Standard No. 225 in a manner that would permit removal of the seat cushion. S15.1.2.2(a) of Standard No. 225 specifies that the bottom surface of the CRF shall have specified attitude angles "[w]ith the CRF attached to the anchorages and resting on the seat cushion." (Emphasis added.) Under this provision, the seat cushion is not removed when measuring attitude angles.

In addition, S9.3 of Standard No. 225 specifies that each vehicle and each child restraint anchorage system in that vehicle shall be designed such that the CRF can be placed inside the vehicle and attached to the lower anchorages of each child restraint anchorage system, with adjustable seats adjusted as described in S9.3(a) and (b). S9.3(a) and (b) state:

(a) Place adjustable seat backs in the manufacturer's nominal design riding position in the manner specified by the manufacturer; and

(b) Place adjustable seats in the full rearward and full downward position.

Neither of these provisions contemplate removing the seat cushion. Accordingly, we conclude that the seat cushion is not removed when measuring pitch, roll and yaw of the CRF. If your vehicle cannot meet the requirements with the seat cushion in place, the vehicle cannot be certified as meeting Standard No. 225.

Question 2: Is the Proposed System permissible if the CRF fits in the vehicle and meets the pitch, roll and yaw requirements with the seat bottom in place (i.e., not removed), but--

• The child seat itself, when installed, is unacceptably unstable (e.g., as regards pitch, roll, and yaw), and
• The lower anchorages must be located behind the middle of the seat back and thus potentially dangerous?

Our answer to the first part of your question is that we will evaluate the vehicle's compliance with the pitch, roll and yaw requirements using the CRF with the seat bottom in place. If all child restraints are "unacceptably unstable" despite the CRF fitting the seat, then that would suggest a design problem with the rear seat, and/or a problem with the CRF, since the device is intended to be representative of a child restraint. We would appreciate learning about any situation where the standard might permit vehicle seats and anchorage systems to be designed such that child restraints can be attached in an unacceptably unstable manner. Detailed sketches would be helpful, with vehicle dimensions included.

Our answer to the second part of this question is that an anchorage system would not be found to non-comply with the standard notwithstanding the location of the lower anchorages relative to an adult passenger's back. It should be noted, however, that you provided little information about any scenario under which the anchorages would be located "behind the middle of the seat back." With regard to passenger discomfort and safety in rear impacts, the vehicle manufacturer might want to consider using foldable or stowable anchorages, which are now permitted under Standard No. 225.

Question 3a: If the answer to either question 1 or question 2 is "no," could the vehicle manufacturer receive an exemption under S5(e)? If an exemption is available and is obtained, could the vehicle manufacturer still install the Proposed System on a voluntary basis?

S5(e) excludes certain rear designated seating positions from the requirement to provide a child restraint anchorage system at the position. To qualify for the exclusion, interference with transmission and/or suspension components must prevent the location of the lower bars of a child restraint changes system anywhere within the zone described by the standard such that the attitude angles could be met. Unless the situations described in your letter met those criteria, the exception would not be available. In response to the second part of your question, if the vehicle were excluded from the requirement to provide the lower anchorage bars because of impracticability, then by definition the bars would not be able to be installed, either voluntarily or to meet the provisions of the standard. Moreover, under S4.1 of Standard No. 225, each tether anchorage and child restraint anchorage system installed voluntarily or pursuant to the standard after September 1, 1999, must meet the configuration, location, marking and strength requirements of the standard.

Before closing, we would like to address a further issue you raised. In your letter and in other correspondence with the agency, you have expressed a belief that S9.3 is invalid because, by requiring the back seat of vehicles to fit the CRF, S9.3 allegedly violates a "no design standard prohibition." Your belief is mistaken. We seek to issue Federal motor vehicle safety standards that are performance-oriented as possible, but if need be they may have the effect of imposing certain design requirements or limitations. The CRF is representative of a child restraint system. Just as we require lap and lap and shoulder seat belt assemblies to be capable of adjustment to fit occupants whose dimensions and weight range from those of a 5^th-percentile adult female to those of a 95^th-percentile adult male (S4.1(g) of Standard No. 209, 49 CFR 571.209), we require vehicle seats to fit the CRF to ensure better compatibility and fit between vehicle seats and child restraint systems to improve the performance of child restraints in protecting children. Further, S9.3 is performance-oriented, in that manufacturers retain flexibility in designing their vehicle seats as long as they allow placement of the CRF, and the standard does not specify dimensions or other features of the vehicle seat. Accordingly, it does not create a "design standard" that would be prohibited by statute.

If you have further questions, please contact Deirdre Fujita of my staff at (202) 366-2992.

Sincerely,

Jacqueline Glassman
Chief Counsel

ref:225
d.4/25/02

Mr. Mike J. Gower
Trico Products (Europe) Ltd.
High Street North
Dunstable
Beds. LU6 1UZ
United Kingdom

Dear Mr. Gower:

This responds to your request for an interpretation of the correct "seating reference point" to use for a designated seating position when applying Standard No. 104, Windshield wiping and washing systems, to passenger cars. You ask whether the seating reference point is "that point which is in the rearmost position of the total seat travel and if the total seat movement envelope is trapezoidal in side view . . ., that this required point would also be the lowest?"

Until April 8, 1993, the rearmost position of the driver's seat was required to be used for the determination of wiped areas A, B, and C in Standard No. 104. However, as explained below, this was changed by a 1993 final rule (44 FR 13021).

S4.1.2 of Standard No. 104 specifies the area of the windshield that must be wiped by the vehicle's windshield wiping system. Paragraph S4.1.2.1 of the standard refers to SAE Recommended Practice J903a, May 1966, Passenger Car Windshield Wiper Systems. SAE J903a, paragraph 2.4(a), states that the wiped area on the windshield glazing surface is "defined and qualified" by the driver's seat in the rearmost position. It also states, "see Figure 1," which identifies "manikin H point with seat in rearmost position." Nonetheless, a March 9, 1993 final rule (copy enclosed), amended S3 of Standard No. 104 to substitute the term "seating reference point" for the term "manikin H point with seat in rearmost position." Specifically, S3 was amended to state: "The term seating reference point is substituted for the terms manikin H point with seat in the rearmost position and H point wherever any of these terms appear in any SAE Standard or SAE Recommended Practice referred to in this standard." Therefore, the term "seating reference point" replaces "manikin H point with seat in rearmost position" in Figure 1 of SAE J903a.

Definitions for terms used in the Federal motor vehicle safety standards (one of which is Standard No. 104) are at 49 CFR 571.3, Definitions. "Seating reference point" (SgRP) is defined as:

the unique design H-point, as defined in SAE J1100 (June 1984), which

(a) Establishes the rearmost normal design driving or riding position of each designated seating position, which includes consideration of all modes of adjustment, horizontal, vertical, and tilt, in a vehicle;

(b) Has X, Y and Z coordinates, as defined in SAE J1100 (June 1984), established relative to the designed vehicle structure;

(c) Simulates the position of the pivot center of the human torso and thigh; and

(d) Is the reference point employed to position the two-dimensional drafting template with the 95^th percentile leg described in SAE J826 (May 1987), or, if the drafting template with the 95^th percentile leg cannot be positioned in the seating position, is located with the seat in its most rearward adjustment position.

The "Seating reference point" is not necessarily determined with the driver seat in its rearmost adjustment position. Instead, the SgRP may be located where the SAE J826 two-dimensional drafting template using a leg segment representative of a 95^th percentile adult male is positioned. If a seat is provided with adjustment positions to accommodate persons larger than the 95^th percentile adult male, any such adjustment positions would not affect the location of the SgRP. On the other hand, if the drafting template with the 95^th percentile leg could not be positioned in the seat because its rearmost adjustment is too far forward, the SgRP must be located with the seat in its most rearward adjustment position.

You could continue to use the rearmost position of the driver's seat in determining the wiped areas in Standard No. 104, although those areas may be slightly greater than if you used the seating reference point as interpreted above. This conservative approach could provide a margin of compliance to ensure that all vehicles produced will meet the Standard's requirements.

You also asked whether the seating reference point was determined with the seat in its lowest adjustment point. SAE Jll00, June 1984, Motor Vehicle Dimensions (referenced above), paragraph 2.1, explains adjustments of the front seat position other than its rearmost normal driving position. It states that all other adjustable features, such as an adjustable steering wheel, and adjustable seat height, etc., shall be positioned in their normal driving position as specified by the manufacturer. Although a motor vehicle manufacturer may specify any seat height that would also be consistent with the fore-aft procedure for the seating reference point described above, you could use a variety of positions (full up, mid, full down, etc.) to determine the worst case (largest areas) for an additional margin of compliance.

I hope this information is helpful. If you have any further questions, please contact Ms. Dorothy Nakama this address or at (202) 366-2992.

Sincerely,

John Womack
Acting Chief Counsel

Enclosure
ref:104#571
d.1/9/02

Mark S. Lore, President
Ride-Away Handicap Equipment Corporation
51 Wentworth Avenue
Londonderry, NH 03053

Dear Mr. Lore:

In a letter dated October 9, 2001, you asked three questions regarding compliance with 49 CFR 595.7(e)(5). This section sets forth certain disclosure requirements related to vehicle modifications made for a person with a disability. Among the requirements set forth in this section is a statement of the load carrying capacity of the vehicle if it has been reduced by more than 100 kilograms (220 pounds). I regret the delay in responding.

By way of background, the National Highway Traffic Safety Administration (NHTSA) administers a statute requiring that motor vehicles manufactured for sale in the United States or imported into the United States be manufactured so as to reduce the likelihood of motor vehicle crashes and of deaths and injuries when crashes do occur. We refer to that statute as the Vehicle Safety Act. It is codified at 49 U.S.C. 30101, et seq.

One of the agency's functions under the Vehicle Safety Act is to issue and enforce Federal motor vehicle safety standards (FMVSSs). These standards specify safety performance requirements for motor vehicles and/or items of motor vehicle equipment. Manufacturers of motor vehicles must certify compliance with all applicable safety standards and permanently apply a label to each vehicle stating that the vehicle complies with all applicable FMVSSs and providing the vehicle gross vehicle weight rating (GVWR).

NHTSA's regulations impose certain requirements on those who alter in certain ways a vehicle that has been previously certified by a manufacturer but not yet sold in good faith for purposes other than resale. Alterers are considered to be manufacturers and are responsible for ensuring that the vehicle meets all applicable federal safety standards when delivered to the first retail customer. Alterers must determine whether those modifications could affect the vehicle manufacturer's certification of compliance and, if so, must apply a label adjacent to the original manufacturer's certification label stating that the vehicle, as altered, conforms with all applicable standards.

Those who modify a completed vehicle after the first retail sale are considered to be "modifiers." The Vehicle Safety Act prohibits manufacturers, distributors, dealers, or motor vehicle repair businesses from knowingly making inoperative any part of a device or element of design installed on or in a motor vehicle or motor vehicle equipment that is in compliance with any applicable federal motor vehicle safety standard. NHTSA may assess a civil penalty to enforce this provision. NHTSA may also, through regulation, exempt a person or business from the prohibition if it decides that an exemption is consistent with motor vehicle safety and the Vehicle Safety Act.

On February 27, 2001, NHTSA published a final rule setting forth a limited exemption from the make inoperative prohibition for businesses or individuals who modify vehicles for persons with disabilities (66 Federal Register 12638; Docket No. NHTSA-01-8667). This exemption is codified in 49 CFR Part 595, subpart C. Only portions of some Federal motor vehicle safety standards are covered by the exemption.

An underlying premise of Part 595 is that the individual for whom the modifications were made is unlikely to realize that the vehicle, as modified, may no longer meet all applicable FMVSS and may have a different load carrying capacity than listed in the owner's manual or on a tire placard. These vehicle changes could have an effect on the overall performance of the vehicle. Accordingly, we determined that vehicle modifiers who decide to take advantage of the exemption set forth in 49 CFR Part 595 should provide the customer with certain safety information and place a permanent label on the vehicle. The language for the label is set out in 49 CFR 595.7(d), and a detailed breakdown of the required information is contained in 49 CFR 595.7(e). One of the required pieces of information is the vehicle's load carrying capacity when it has been reduced by 100 kilograms (220 pounds) or more.

This requirement was intended to address circumstances in which the cargo carrying capacity has been reduced as a result of the modification. The term GVWR is defined in 49 CFR 571.3 as "the value specified by the manufacturer as the loaded weight of a single vehicle." The GVWR informs vehicle owners how heavily the vehicle may be safely loaded. It also affects the vehicle's loading and other test conditions for the performance tests to ascertain whether the vehicle complies with applicable safety standards.

The only express regulatory limitation on the GVWR that manufacturers may assign to their vehicles is set forth in 49 CFR 567.4(g)(3), which provides that the assigned GVWR "shall not be less than the sum of the unloaded vehicle weight, rated cargo load, and 150 pounds times the vehicle's designated seating capacity." "Unloaded vehicle weight" is defined in 49 CFR 571.3 as "the weight of a vehicle with maximum capacity of all fluids necessary for operation of the vehicle, but without cargo, occupants, or accessories that are ordinarily removed from the vehicle when they are not in use." Although the term "rated cargo load" is not defined by regulation, generally it is the GVWR of the vehicle minus the combined weight of the occupied designated seating positions (150 pounds times the total number of designated seating positions) and the unloaded vehicle weight.

Alterers must also determine whether their modifications affect the manufacturer's stated GVWR, gross axle weight rating (GAWR), and vehicle type. If such a change has been made, the alterer must specify the new GVWR, GAWR, or vehicle type in a manner consistent with the capability of the vehicle to comply with applicable standards and operate at higher weight rating and/or as a different type of vehicle. NHTSA expects both manufacturers and alterers to assign GVWR and GAWRs that reflect the manufacturer's or alterer's good-faith evaluation of how the vehicle's braking, load bearing items (including tires), suspension, steering, and drive train components will react to the vehicle's weight, size, cargo-carrying capacity and intended use.

Although the term "load carrying capacity" was not specifically defined in the February 2001 final rule, the term was intended to convey the same meaning as vehicle capacity weight, as defined in FMVSS No. 110, Tire selection and rims. "Vehicle capacity weight" is defined in that standard as the rated cargo and luggage load plus 68 kilograms (150 pounds) times the vehicle's designated seating capacity. Simply stated, a vehicle's load carrying capacity is its GVWR minus its unloaded weight.

The number of designated seating positions used to determine the load carrying capacity may not be the same as the number of designated seating positions that were in the vehicle when the vehicle manufacturer or alterer assigned the GVWR. In many instances, one or more seating positions may be removed in order to make the modifications needed to accommodate a particular disability. When calculating the load carrying capacity under 49 CFR 595, if an original designated seating position is replaced by a wheelchair retention device that will be used to secure an occupied wheelchair, that position replaces the original designated seating position, i.e., 150 pounds must be allocated for that seating position but the weight of the removed seat may be deducted. If the original designated seating position is not replaced by another seat or a wheelchair retention device, it need not be considered as a designated seating position when calculating the load carrying capacity, and the weight of the removed seats, or other equipment, need not be considered.

The installation of a wheelchair retention device to restrain an unoccupied wheelchair as cargo does not qualify as a designated seating position, and a modifier would not be required to allocate a 150 pound capacity for that position. The vehicle modifier may include the weight of the wheelchair as part of the load carrying capacity. However, the modifier is required to tell the owner of the vehicle whether the weight of the wheelchair has been included when determining the reduced load carrying capacity and when specifying what available load capacity remains. Moreover, since wheelchair weights can vary by hundreds of pounds between manually operated and self-propelled models, a modifier must state the weight it used for any wheelchair included in its calculation of available load capacity. As discussed in the February 2001 final rule, the vehicle modifications contemplated by 49 CFR 595, subpart C are limited to modifications made for a specific customer. Accordingly, the customer should be able to provide the modifier with the weight of any wheelchairs that they expect the vehicle to transport.

You have asked three questions about the effect of the reduced load carrying capacity disclosure requirement of Part 595 on vehicle modifiers or alterers. Specifically, you asked:

1. If the modifier/alterer A adds 200 pounds, and modifier/alterer B adds 20 or more pounds - both doing that prior to final delivery, who, if anyone is responsible for notification to the consumer?

2. Often times conversion companies specializing in non-handicap equipment (RV's, custom vans, 4 wheel drive units, etc.) add in excess of 220 lbs. Or an amount that when added with a modifier will exceed the 200 pounds threshold. What are the requirements in the case in where there may be 3 or more modifiers each adding weight less than 220 pounds, but from aggregate level the amount exceeds 220 pounds? Who is responsible in this case for notification to the consumer?

3. Many times handicap equipment modifiers remove certain equipment and then add other equipment. The ruling in this provision would require that modifiers weigh each vehicle, and notify the consumer if the total added/deleted equipment exceeded 220 pounds. Is this the intention?

As noted above, Part 595, subpart C applies only to modifications made to accommodate a person with disabilities after the first retail sale. If the modifications were made prior to the first retail sale, the entity making the modifications would be an "alterer" and required to ensure that the vehicle complies with all applicable FMVSS. We anticipate that, since the alterer's certification will specify the GVWR and GAWR as altered and since the label will be placed next to the original certification label, any subsequent modifier will be able to assess whether the modification to accommodate a person with disabilities has resulted in a total reduction in the load carrying capacity of more than 100 kg (220 lbs). The modifier will then be responsible for providing the required information to the consumer.

Similarly, any "conversion compan[y] specializing in non-handicap equipment" that alters a vehicle prior to its first retail sale is, again, an "alterer" responsible for placing an alterer's certification next to the original certification label. To the extent the vehicle has been modified after the first retail sale in a way that adds weight but does not affect compliance (such that no prior modification was required by Part 595), we anticipate that the owner of the vehicle or a modifier familiar with the base vehicle may be aware of the modification and that the modifier may be able to assess the amount of additional weight and gauge the extent to which the final modifications may have exceeded the original GVWR or GAWR. We expect that the modifier relying on Part 595 exemption will be able to assess whether the load carrying capacity of the vehicle, as wholly modified, has been reduced by more than 100 kg (220 lbs.) and will have sufficient experience and knowledge to determine in good faith whether the consumer must be provided with the Part 595 required information.

Part 595 was not intended to require the modifier to weigh each vehicle. It is intended, however, to ensure that if the consumer receives a vehicle that has a significantly reduced load carrying capacity, s/he will be aware of that fact so as not to overload the vehicle and experience tire, braking, suspension, stability, and/or steering problems. Any good faith method to determine the reduction in load carrying capacity may be used. Nonetheless, if the only means of determining whether the load carrying capacity has been significantly reduced (i.e., reduced by more than 220 lbs) is to weigh the vehicle, then we anticipate the modifier will do so.

Should you require any additional information or assistance, please contact Rebecca MacPherson, of my staff, (202) 366-2992 or at the address given above.

Sincerely,

Jacqueline Glassman
Chief Counsel

ref:595
d.4/25/02

J. Atary, Projects Manager
Elco Industries Ltd.
17 Haneviim Street
PO Box 1176
Ramat Hasharon 4711
Israel

Dear Dr. Atary:

This is in response to your fax dated October 14, 2001, in which you ask whether your Mobile Transformer is a motor vehicle that must comply with Federal motor vehicle safety standards. As discussed below, the answer appears to be no.

In your fax, you describe the Mobile Transformer as a large transformer and the associated equipment, such as breakers, switch gears, and control cabinets, that are permanently mounted on a semi-trailer. The semi-trailer is oversized and requires permits from State Departments of Transportation and an escort vehicle when driving on public roads. Since the equipment is permanently mounted to the semi-trailer, the semi-trailer cannot be used to transport goods.

You state that the Mobile Transformer is not intended primarily for highway use. It normally stays at work sites the majority of the time and is infrequently transported on public roads between these sites. These work sites are permanent substations where the Mobile Transformer is brought for replacing broken down transformers or to enable maintenance work to be performed on the substation's permanent transformer.

By way of background information, the National Traffic and Motor Vehicle Safety Act (Safety Act) authorizes our agency to issue safety standards applicable to new motor vehicles and new items of motor vehicle equipment. (49 U.S.C. 30101 et seq.) NHTSA has no authority to approve or certify any commercial product. Instead, manufacturers are required to certify that their vehicles or equipment meet all applicable standards. The following represents our opinion based on the facts provided in your letter.

The term "motor vehicle" is statutorily defined as "a vehicle driven or drawn by mechanical power and manufactured primarily for use on public streets, roads, and highways, but does not include a vehicle operated only on a rail line." (49 U.S.C. 30102(a)(6)).

Whether we consider the Mobile Transformer to be a motor vehicle depends on its use. For example, we interpret our statutory definition not to encompass mobile construction equipment, such as cranes and scrapers, which use the highway only to move between job sites and which typically spend extended periods of time at a single job site. In such cases, the on-highway use of the vehicle is merely incidental and is not the primary purpose for which the vehicle was manufactured. In contrast are instances where vehicles, such as dump trucks, frequently use the highway going to and from job sites, and stay at a job site for only a limited time. Such vehicles are considered motor vehicles for purposes of the statute we administer because the on-highway use is more than incidental.

Based on the available information, it appears that your Mobile Transformer is not a "motor vehicle" within the meaning of the Safety Act. This conclusion is based on the statements in your letter that the Mobile Transformer uses the highway only to move between job sites and typically spends extended periods of time at a single job site. Thus, the agency would consider the use of your device on the public roads to be incidental and not its primary purpose. Since your device is not a motor vehicle, it would not be subject to our Federal Motor Vehicle Safety Standards.

If the agency were to receive additional information indicating that your Mobile Transformer used the roads more than on an incidental basis, then the agency would reassess this interpretation.

I hope you find this information useful. 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:571
d.11/16/01