ID: nht93-7.24

DATE: October 14, 1993

FROM: Amantha L. Barbee -- Sales Coordinator, Thomas Built Buses, Inc.

TO: John Womack -- Acting Chief Counsel, NHTSA

TITLE: None

ATTACHMT: Attached to letter dated 11/23/93 from John Womack to Amantha L. Barbee (A41; Std. 102; Part 571), letter dated 1/26/93 from John Womack to Paul David Wellstone, letter dated 8/21/92 from Paul Jackson Rice to Chuck Anderson, and letter dated 9/27/85 from Jeffrey R. Miller to Charles Pekow

TEXT:

I am writing you in search of information pertaining to the van versus school bus issue. I am the Head Start Sales Coordinator for Thomas Built Buses, Inc. I have found many Head Start Agencies to be using vans to transport students to and from the program. When I have asked the directors of the agencies why they are not using FMVSS as a guide for transportation. The answer across the board is, "because we have not been told otherwise."

If I understand the ruling correctly, this practice should be illegal. I am asking your help in clarifying this issue for me. If indeed this is unlawful, what can be done within the organization to rectify the situation?

I would appreciate any assistance you could offer. I can be reached at the above address or at (919) 841-5794.

ID: nht93-7.25

DATE: October 15, 1993

FROM: John Womack -- Acting Chief Counsel, NHTSA

TO: Michael F. Hecker -- Micho Industries

TITLE: None

ATTACHMT: Attached to letter dated 7/8/93 from Michael F. Hecker to John Womack (OCC-8882)

TEXT:

This responds to your letter concerning our June 29, 1993, letter to your associate, Mr. Michael Dunn, about the R-Bar Passenger Restraint System (R-Bar). The R-Bar, an item of motor vehicle equipment, is a padded restraining device designed to be mounted on the seat backs of school buses to fold down to restrain the passengers in the next rearward seats. You have further questions about the Federal Motor Vehicle Safety Standards (FMVSS) and NHTSA regulations, as applied to R-Bars.

In our letter to Mr. Dunn, we addressed several statements that we believed were potentially misleading that Micho made to school officials. These statements include, among other things, that NHTSA has "approved" R-Bars and that R-Bars are certified as complying with Federal safety standards. We noted that, while Micho indicated that it would refrain from suggesting that NHTSA has approved the R-Bars, we sought assurances that Micho would not continue to represent that it can "certify" the compliance of R-Bars.

You ask for clarification of that letter. You state that there "appears to be some confusion" resulting from past correspondence with this agency regarding certification of compliance with applicable FMVSSs. You believe, based on previous correspondence, that the R-Bar must comply with FMVSSs that apply to the school bus seat and "the general safety of school buses," such as school bus exits and flammability resistance. Accordingly, you believe that Micho can properly "certify" the R-Bar to these school bus FMVSSs.

I appreciate this opportunity to clarify our requirements. By way of background, the National Traffic and Motor Vehicle Safety Act of 1966, 15 U.S.C. S1381 et seq. (Safety Act), authorizes this agency to issue FMVSSs for new motor vehicles and new items of motor vehicle equipment. The Safety Act establishes a self-certification system whereby the manufacturer of the vehicle or item of equipment is responsible for exercising due care in certifying that the product will, if tested as specified in the applicable FMVSSs, meet the safety requirements in the standards applicable to the product. What constitutes "due care" in a particular case depends on all relevant facts, including such things as the limitations of current technology, the availability of test equipment, the size of the manufacturer, and above all, the diligence of the manufacturer.

Because of the self-certification system established by law, NHTSA can neither approve, disapprove, endorse, nor offer assurances of compliance for any product in advance of the manufacturer's certification of the product. Rather, this agency enforces the standards after the fact by purchasing a vehicle or item of equipment in the retail market and conducting the compliance tests specified in the pertinent standards. The

agency also investigates safety-related defects. If a manufacturer or NHTSA determines that a noncompliance or safety-related defect exists, the manufacturer is responsible for notifying purchasers of its product and remedying the problem free of charge. The recall responsibility for noncomplying or defective vehicles is borne by the vehicle manufacturer in cases in which a product is installed on a new vehicle by that vehicle manufacturer.

As stated in our previous letters to your company, there are no FMVSSs specifically applicable to R-Bars. Our school bus FMVSSs apply to whole vehicles, rather than to individual items of school bus equipment. If R- Bars are installed as original equipment on a new school bus, the vehicle manufacturer is required by the Safety Act to certify that, with the devices installed, the vehicle complies with all applicable safety standards, including Standard 222, School Bus Passenger Seating and Crash Protection (49 CFR S571.222); Standard 217, Bus Window retention and Release (S571.217); Standard 302, Flammability of Interior Materials (S571.302); and, with regard to small school buses, the pertinent provisions of Standard 208, occupant Crash Protection (S571.208). 15 U.S.C. S1397(a)(1), 15 U.S.C. S1403, and 49 CFR Part 567. Because these FMVSSs apply to the vehicle there are no standards to which Micho can, or must, certify compliance.

If the R-Bars are added to a previously-certified new school bus prior to its first sale to a customer, the person who so modifies the vehicle would be an "alterer" of a previously certified new vehicle. As an alterer, the person would be required to certify that, as altered, the vehicle continued to comply with all applicable Federal motor vehicle safety standards. 49 CFR S567.7.

The vehicle manufacturer or alterer that installs an R-Bar may, in order to meet its duty to exercise due care, in part rely on information from you concerning the R-Bar's performance characteristics, to the extent such reliance is reasonable. Since compliance with Standard 222 appears to be a significant concern with respect to the installation of R-Bars, you might wish to test a bus or buses equipped with an R-Bar, using the test procedures set out in Standard 222. The results of such tests might be useful to a school bus manufacturer in determining whether it could certify a school bus equipped with R-Bars as complying with standard 222.

If R-Bars were installed on a used school bus, the installer would not be required to attach a certification label. However, a manufacturer, dealer, distributor, or motor vehicle repair business would be required to ensure that by installing the R-Bars, the installer did not knowingly render inoperative, in whole or in part, any device or element of design installed on or in the vehicle in compliance with an applicable Federal motor vehicle safety standard. See 15 U.S.C. S1397(a)(2)(A). In this case, the installer would be responsible for ensuring that the R-Bars did not cause the school bus to fail to comply with any safety standards, including but not limited to the standards enumerated above.

This agency has addressed various compliance issues and other safety concerns applicable to R-Bars and similar devices on a number of occasions in the past. As we stated in a letter to Mr. Kenneth A. Gallo dated

February 19, 1993, (copy enclosed) the agency believes that the concept of using "safety bars" as occupant restraining devices in school buses raises significant safety concerns, including whether the bar could result in excessive loads (e.g., abdominal, leg, or chest) on occupants during a crash, as a result of contact between the bar and the occupants. We explained in a July 14, 1992, letter to you (copy enclosed) that the vehicle in which R-Bars are installed must meet the requirements of Standard 222 with the device in any position in which it may be placed. We have said that if a padded restraining device similar to the R-Bar is attached to the seat back, it becomes part of the seat and the device, as folded into its position, must not intrude into the leg protection zone described in S5.3.2 of Standard 222 (NHTSA letter of January 31, 1991, to Mr. Scott Hiler, enclosed). Also enclosed are NHTSA letters of March 10, 1989, and November 3, 1988, to Mr. Joseph Nikoll, which discuss issues concerning installation of "safety bars" in small school buses in addition to or in lieu of the seat belts required by Standard 208.

You asked for our comments on two statements you intend to make to your customers. The first statement is that there are no FMVSSs directly applicable to R-Bars. As discussed above, that statement is correct. The second statement is that, when properly installed, R-Bars will not violate any standard or regulation or render inoperative any safety feature on a school bus. NHTSA lacks information on which to assess the accuracy of that statement. However, it appears unlikely that you could provide such assurances for school buses in general, since the question of whether adding R-Bars would result in a school bus no longer complying with safety standards is likely to depend, at least in part, on factors specific to a particular school bus, such as the seats, floor, etc. Accordingly, absent data to substantiate this statement for all bus configurations and potential installation procedures, we believe that it would not be proper for you to make such a statement.

I hope this resolves the issues raised in your letter.

ID: nht93-7.26

DATE: October 18, 1993

FROM: J. C. DeLaney -- Manager, Technical Programs, Motorcycle Industry Council, Inc.

TO: John Womack -- Acting Chief Council, NHTSA

TITLE: Re: Request for FMVSS 123 Interpretation

ATTACHMT: Attached to letter dated 11/23/93 from John Womack to J. C. DeLaney (A41; Std. 123)

TEXT:

The Motorcycle Industry Council (MIC) is a nonprofit national trade association representing manufacturers and distributors of motorcycles, motorcycle parts and accessories, and members of allied trades.

On behalf of its membership, MIC requests an interpretation of FMVSS 123 as it relates to motorcycle side stand retraction.

FMVSS 123, S5.2.4, states that "a stand shall fold rearward and upward if it contacts the ground when the motorcycle is moving forward.", but makes no reference to any compliance test criteria or procedure.

The Society of Automotive Engineers (SAE) has published two recommended procedures related to side stand retraction testing - SAE J1578 "Motorcycle Side Stand Retraction Test Procedure"; and SAE J1579 "Motorcycle Side Stand Retraction Performance Requirements." A third SAE Recommended Practice, J1846, establishes characteristics for the test surface used for testing in accordance with J1578 and J1579. Copies of these SAE documents are enclosed.

MIC's question is: Does a motorcycle side stand comply with FMVSS 123 if it passes the SAE J1578 test procedure?

MIC would appreciate your earliest possible response to the above request. Please contact me if there are any questions or if additional information is required.

ID: nht93-7.27

DATE: October 19, 1993

FROM: Jason Backs -- Engineering Department, Travis Body and Trailer, Inc.

TO: Taylor Vinson

TITLE: None

ATTACHMT: Attached to letter dated 11/18/93 from John Womack to Jason Backs (A41; Std. 108)

TEXT: Recently, I spoke with Patrick Boyd (Room 5307) concerning the conspicuity law and how it will affect the business at which I work. Mr. Boyd suggested that I direct my question to you. Allow me to fill you in on the details. I am an engineer at Travis Body & Trailer in Houston, TX. We manufacture aluminum and steel end dump trailers. We will be required to meet the trailer conspicuity law which becomes effective December 1. The law is very detailed about most aspects of its implementation. However, I would like to be sure that my suggested installation is indeed conforming to the law. The rubrail is the obvious placement for the reflective tape on a dump trailer. However, since our present extrusions have raised ridges on the outer surface, it is not convenient to apply the reflective tape to the rubrail. As the final alternative, we could order three new extrusion dies. This would be quite expensive. Presently, I propose that we apply fifteen separate 18" lengths of the tape (11" red, 7" white, made by 3M) to the side sheet directly above the rubrail and in between each side stake. Using these lengths yields 58% coverage of a 39' trailer. This installation places the tape in full view from a point normal to the side of the trailer. At approximately 30 degrees from normal to the side of the trailer, the edge of the tape begins to be obstructed by the side stake. At 45 degrees from normal to the side of the trailer, 1 1/2" (8.33%) of each 18" section of tape is obstructed by the side stake. At 60 degrees from normal to the side of the trailer, 4" (22.22%) of each 18" section of tape is obstructed by the side stake. At 60 degrees from the normal to the side of the trailer, the tailgate reflective tape is in view. This placement of the tape in a slightly recessed position on the trailer which causes obstruction at large angles from normal to the trailer side is why I question that it conforms to the law. We can comply to the application of the reflective tape on the full width of the tailgate (rear of the tailer) with no question. I would like from you in writing that this specific installation of the reflective tape is in fact in compliance to the law in every respect. This would be helpful to have on file in the future should any of our trailer's conformity to the conspicuity law ever arise. Should any of the drawings depicting the placement of the stickers be unclear, feel free to call me. If you deem that this installation is not in compliance to the full extent of the conspicuity law, please contact me to further discuss our options.

ID: nht93-7.28

DATE: October 19, 1993

FROM: Donald W. Vierimaa -- Vice President-Engineering, Truck Trailer Manufacturers Association

TO: John Womack -- Acting Chief Counsel, NHTSA

COPYEE: Tank Conference Engineering Committee; TTMA Engineering Committee; Retroreflective and Reflector Devices Associates

TITLE: Conspicuity

ATTACHMT: Attached to letter dated 11/22/93 from John Womack to Donald W. Vierimaa (A41; Std. 108)

TEXT:

Often a new tank trailer will be sold to a customer who will contract with another party to have a lining installed in the tank. High heat is used to apply this lining. After the lining is installed, the tank trailer is painted. After the tank is painted, conspicuity treatment is applied. The high heat used in the installation of the lining precludes the application of paint and retroreflective sheeting to the tank before the lining is installed.

In addition, non-tank trailers may be sold without conspicuity treatment when the owner wishes to contract the application of special paint and logo schemes.

49 CFR 568.3 defines an incomplete vehicle as one "that requires further manufacturing operations, other than the addition of readily attachable components, such as mirrors or tire and rim assemblies, or minor finishing operations such as painting, to become a completed vehicle."

Is a trailer manufactured after December 1, 1993 and sold without the conspicuity treatment required in FMVSS 108 an incomplete vehicle? If you consider such a trailer to be a completed vehicle, does NHTSA require that the manufacturer furnish the owner with (1) retroreflective sheeting or reflex reflectors complying with FMVSS 108, (2) instructions as to where on the trailer the conspicuity treatment should be installed, and/or (3) instructions on preparing the surface for the application of the conspicuity treatment? Should conspicuity treatment installed by the owner be deemed to be not in compliance with S5.7 of FMVSS 108, is the owner solely responsible for the violation and for bringing the trailer into compliance?

If NHTSA determines that the installation of conspicuity treatment is a readily attachable component and therefore a complete vehicle, can the manufacturer certify that "This vehicle conforms to all applicable Federal motor vehicle safety standards in effect on the date of manufacture shown above" if the trailer is not furnished with the conspicuity treatment required by FMVSS 108?

ID: nht93-7.29

DATE: October 20, 1993

FROM: John Womack -- Acting Chief Counsel, NHTSA

TO: Richard Glover -- Evenflo Juvenile Furniture Co.

TITLE: None

ATTACHMT: Attached to letter dated 6/3/93 from Richard Glover to Deirdre Fujita (OCC-8744)

TEXT:

This responds to your letter and telephone calls about the child seat registration form you are considering. The form is required by S5.8 of Standard 213, "Child Restraint Systems," and is depicted in figures 9a and 9b of the standard.

You ask whether S5.8(c) permits you to place certain additional information in the shaded area on the form. The information is a bar code that you said on the telephone contains information on "date of manufacture, shift, location and serial number for the product that the card represents." You explain that the bar code is desired because it can be automatically scanned, which would avoid possible "mis-keying" of the information into the data record. Further, you state that the bar code has to be surrounded by a slightly larger unshaded "quiet zone" to enable the scanner to record the bar code information. You, are concerned whether NHTSA would conclude that the quiet zone renders a part of the shaded area unshaded.

It is our opinion that a bar code that contains the information you described is permitted in the shaded area (the area outside of the space, for the consumer to fill in). S5.8(c) of Standard 213 specifies the information that must be provided on the form and states the following:

No other information shall appear on the postcard, except identifying information that distinguishes a particular child restraint system from other systems of that model name or number may be preprinted in the shaded area of the postcard, as shown in figure 9a.

The bar code, printed in the shaded area, is permitted by S5.8(c). The information provided by the bar code distinguishes a particular child seat from another of the same model name or number. We consider the quiet zone as part of the bar code since it is needed for the bar code to be reliably read. The quiet zone therefore need not be shaded, since the printed bar code (or any other identifying information permitted by S5.8(c)) itself is not.

Please note that, while the bar code is permitted, the information on the model name or number and date of manufacture must still be in English under S5.8(c). This information must be in English so that a consumer can see that this information has been provided and that only minimal effort is needed to fill out the registration form.

We also wish to note another feature of the form you faxed. Your form has the words "please print" after the instructions to the consumer "just fill in your name and address." "Please print" is not on the form depicted in figures 9a and 9b of Standard 213. In an earlier letter, NHTSA decided

that a minor variation in the wording of a warning expressly specified by Standard 213 was permitted when the change clarified the warning and did not make any substantive change to the warning's meaning. (Letter to Mr. McGuigan, December 18, 1980.) Similarly, "please print" is a minor variation to the wording of the instructions that clarifies the instructions and does not substantively change them. Thus, it is permitted.

I hope this information is helpful. Please call Ms. Fujita at (202) 366-2992 if you have further questions.

ID: nht93-7.3

DATE: October 1, 1993

FROM: John Womack -- Acting Chief Counsel, NHTSA; Stephen P. Wood

TO: Docket Section (Redbook, Standard No. 208)

TITLE: Interpretation of Standard No. 208

TEXT:

At the request of the Office of Vehicle Safety Compliance (OVSC), this provides, for the public docket, an interpretation of the requirements of S7.1.1 and S7.1.1.1 of Standard No. 208, Occupant Crash Protection. OVSC asked us to address whether these sections require safety belts at the driver's position of vans to fit around a 95th percentile male dummy when the driver's seat is in the full forward position. As discussed below, the answer to that question is yes.

The general structure of S7.1.1 through S7.1.1.2 is that S7.1.1 sets forth requirements for seat belt assemblies that apply except as those requirements are modified in S7.1.1.1 and S7.1.1.2. S7.1.1.1 modifies S7.1.1 with respect to the range of people that must be fit, but not with respect to the range of seating positions in which that fit must be provided. S7.1.1 provides:

S7.1.1 Except as specified in S7.1.1.1 and S7.1.1.2, the lap belt of any seat belt assembly furnished in accordance with S4.1.2 shall adjust by means of any emergency-locking or automatic-locking retractor that conforms to S571.209 to fit persons whose dimensions range from those of a 50th percentile 6-year-old child to those of a 95th percentile adult male and the upper torso restraint shall adjust by means of an emergency-locking retractor or a manual adjusting device that conforms to S571.209 to fit persons whose dimensions range from those of a 5th percentile adult female to those of a 95th percentile adult male, with the seat in ANY POSITION, the seat back in the manufacturer's nominal design riding position, and any adjustable anchorages adjusted to the manufacturer's nominal design position for a 50th percentile adult male occupant. . . . (Emphasis added.)

Thus, except as modified in S7.1.1.1 and S7.1.1.2, the lap belt and upper torso restraint of any seat belt assembly must meet all the requirements of S7.1.1. More specifically, the lap belt must adjust to fit persons whose dimensions range from those of a 50th percentile 6-year old child to those of a 95th percentile adult male, and the upper torso restraint must adjust to fit persons whose dimensions range from those of a 5th percentile adult female to a 95th percentile adult male, with the seat in any position.

S7.1.1.1 makes a limited modification to S7.1.1's requirements for seat belt assemblies at the driver's seating position; S7.1.1.2 is not relevant to that seating position. Section S7.1.1.1 provides:

S7.1.1.1 A seat belt assembly installed at the driver's seating position shall adjust to fit persons whose dimensions range from those of a 5th-percentile adult female to those of a 95th-percentile adult male.

S7.1.1.1 is significant in what it addresses and what it does not address. It does address the lap belt for the driver's seating position and as to that belt, the range of occupant sizes which must be fit. For the driver's seating position, the general requirement that the lap belt of any seat belt assembly must adjust to fit persons whose dimensions range from those of a 50th percentile 6-year-old to those of a 95th percentile male is modified by S7.1.1.1 to apply to persons whose dimensions range from those of a 5th-percentile adult female to those of a 95th percentile adult male. However, S7.1.1.1 does not address the range of seating positions in which seat belt fit must be provided and thus makes no change in S7.1.1 with respect to that range.

Therefore, S7.1.1 and S7.1.1.1 together require, for seat belt assemblies at the driver seating position, that the lap belt and upper torso restraint must adjust to fit persons whose dimensions range from those of a 5th percentile adult female to a 95th percentile adult male, with the seat in any position.

The use of the term "any" merits special emphasis. With respect to the requirement that safety belts must fit the specified range of occupant sizes with the seat in "any position," the term "any," when used in connection with a set of items, is specifically defined at 49 CFR 571.4 as meaning the totality of that set of items, any one of which may be selected by the Administration for testing. Therefore, safety belts at the driver's position of vans must fit a 95th percentile male dummy with the seat in all possible positions, including the full forward position.

ID: nht93-7.30

DATE: October 20, 1993

FROM: John Womack -- Acting Chief Counsel, NHTSA

TO: James Z. Peepas -- Selecto-Flash, Inc.

TITLE: None

ATTACHMT: Attached to letter dated 7/26/93 from James Womack from James Z. Peepas (A41; Std. 108) and letter dated 7/9/93 from James Z. Peepas to Taylor Vinson (OCC-8871)

TEXT:

In a recent letter of interpretation on the trailer conspicuity requirements of Standard No. 108, which are effective December 1, 1993, we informed you that "()f you determine that this configuration meets S5.7.1.4.2(a) without the container load in place, there would be no need to increase the amount of retroreflective sheeting on the trailer behind the gooseneck." The word "without" is incorrect, and should be replaced with the word "with", in accordance with the requirement of S5.7.1.4.2(a) that conspicuity treatment not be obscured by trailer cargo. We are sorry for any inconvenience that this error may have caused you.

Our letter also informed you that we were considering a petition for reconsideration of the mounting height requirements for the conspicuity treatment. On October 6, 1993, the agency published its response to this petition, modifying the mounting height requirement to a range between 15 and 60 inches (375 to 1525 mm). I enclose a copy of the amendment for your information.

ID: nht93-7.31

DATE: October 20, 1993

FROM: Jerome Cysewski -- Ideal Mfg., Inc.

TO: Office of the Chief Counsel -- NHTSA

TITLE: None

ATTACHMT: Attached to letter dated 1/24/94 from John Womack to Jerome Cysewski (A42; VSA 102)

TEXT:

I would like to have your interpretation of the following equipment regarding NHTSA statutes, regulation and standards:

The cement silo has tandem axles, weighs 13,600 pounds, the silo is mounted on its own trailer operated by electric brakes. This piece of equipment is pulled by a one ton truck with hydraulic brakes.

The aggregate batch plant has a single axle, weighs 6400 pounds, the batch plant is mounted on its own trailer operated by electric brakes. This piece of equipment is pulled by a one ton truck with hydraulic brakes.

Both pieces of equipment are mobile but are designed to be towed with vehicles for off-the-road set and positioning, this equipment is for a one man operation.

Please return my request to the above address. Thank you for your attention in this matter.

ID: nht93-7.32

DATE: October 21, 1993

FROM: James "Bubba" Schaub -- Midas Muffler and Brake

TO: John Womack -- Acting Chief Council, NHTSA

TITLE: None

ATTACHMT: Attached to letter dated 5/8/94 from John Womack to James Schaub (A42; Std. 105; Part 570)

TEXT:

First allow me to introduce myself. My name is James "Bubba" Schaub. I manage a Midas Muffler and Brake Shop in Slidell, Louisiana, located at 180 Gause Blvd., and have for 9 years now. My concern is in the area of ethical and sound business practice. I'm taught by Midas to replace brake rotors and/or brake drums when they exceed the minimum thickness (on disc rotors) or maximum diameter (on drums), published by Original Equipment Manufacturers. My questions are as follows:

1. Please interpret F.M.V.S.S. 105 HYDRAULIC BRAKE SYSTEMS.

2. Is there any basis for fraud in following this policy? (Of disc rotor and/or drum replacement when out of manf. safety tolerances).

Please understand that my concern lies only with doing the right thing - the safe way, for our costumers. Let it be known that the local auto dealership service dept.'s are not following their own recommendations, for safety in this matter, which causes my costumers to believe that we (Midas) are fraudulently selling and installing parts on their vehicles when they're not needed. But, if I can present an established standard to our (Midas) costumers, I can prevent them from feeling they've been taken advantage of.