ID: 09-004697 213

ID: nht93-3.22

DATE: April 26, 1993

FROM: Shintaro Nakatsuka -- Vice President, Environment & Safety, Mazda (North America), Inc.

TO: John Womack -- Acting Chief Counsel, NHTSA

COPYEE: Barry Felrice -- Associate Administrator for Rulemaking

TITLE: None

ATTACHMT: Attached to letter dated 7/29/93 from John Womack to Shintaro Nakatsuka (A41; Std. 102; Std. 114)

TEXT:

Mazda, like many other manufacturers, is relying more and more upon the use of electronics in the development of future vehicles. In the course of examining some applications of these technologies, we discovered some ambiguity between the requirements of FMVSS 102 and FMVSS 114. There appears to be an unintended inconsistency between the two regulations.

We believe that it is possible to interpret the provisions of FMVSS 102 along with the provisions of FMVSS 114 so as to eliminate this ambiguity. We are requesting that you consider the possible interpretations discussed herein and advise us whether we are correct.

In 1989, NHTSA amended FMVSS 102 in order to permit the use of electronic gear shift sequence displays. The agency replaced the requirement that the gear shift sequence be PERMANENTLY displayed with a requirement that it be displayed only when the ignition is in a position where the transmission can be shifted or when the transmission is not in park (49CFR102 S3.1.4.1).

In 1991, NHTSA amended FMVSS 114 to accommodate electrical transmission shift lock systems. Here the standard was amended to allow override systems to be incorporated in vehicles that permitted the transmission to be shifted out of park in the case of a power failure. The amendment that was added permits the transmission to be shifted out of park in the case of a power failure provided that the key is removed and the vehicle cannot be steered (49CFR114 S4.2.2(b)(1)). This permits towing when the vehicle is otherwise disabled.

In the course of examining electrical systems for future vehicle programs, we encountered some ambiguity between the two provisions discussed above. There appears to be what can best be described as unintended inconsistency between the two provisions. The agency clearly contemplated power failures and the need to deal with them when it added the override provisions to FMVSS 114. This standard permits the incorporation of features in a vehicle that allows the transmission to be moved out of park, provided first, that the key is not in the ignition so as to prevent vehicle operation, and second, that the vehicle cannot be steered.

These safeguards assure that moving the transmission out of park does not inadvertently present an unsafe situation.

However, when we turn to the requirements of FMVSS 102, that standard does not explicitly address the situation where the transmission has been moved out of park in the case of a power failure (as contemplated under the provisions of FMVSS 114). It is the safeguards that are incorporated in FMVSS 114 that allow a manufacturer to design and sell a vehicle with an electrical shift lock system.

We presume that reading FMVSS 102 alongside FMVSS 114 allows a similar situation with respect to electronic shift sequence displays. We believe that the provisions of S3.1.4.1(b) of FMVSS 102 would not have to be satisfied in a vehicle equipped with an electronic gear shift sequence display were that vehicle to suffer the same power failure that necessitated the application of the shift lock override provision of FMVSS 114, provided that the same safeguards pertained, minimizing any possible safety risk.

An alternative interpretation of this issue may be equally valid. Under this interpretation, we advance the position that the agency never intended that the provisions of FMVSS 102 would apply in situations where a manufacturer elected to use an electronic transmission shift sequence display and there was a power failure.

It is clear that the 1989 amendments were promulgated only to permit manufacturers to offer electronic displays. In amending the regulation to allow those types of displays, the agency clearly recognized that its requirements could not be satisfied under conditions where there was a power failure. Thus, compliance testing was never intended to be conducted in such a situation.

In fact, only where the agency has a particular safety concern in cases where there is a power failure, such as those conditions addressed by FMVSS 114, does NHTSA explicitly establish requirements that apply in such a situation. The absence of any such requirements in FMVSS 102 is a further indication that the standard is not meant to apply when there is no power.

We would appreciate an early response to this request for interpretation. If NHTSA does not believe that there is a suitable interpretation that permits FMVSS 102 to be read consistently with FMVSS 114, we respectfully request that this letter be treated as a petition for rulemaking and that it receive expedited treatment.

Please feel free to contact me or Mr. M. Ishibashi of this office should you have any questions.

ID: 22915.rbm

Mr. Jurgen Babirad
Rehabilitation Technology Associates, Inc
P.O. Box 540
Kinderhook, NY 12106





Dear Mr. Babirad:

This responds to your correspondence regarding the National Highway Traffic Safety Administration's (NHTSA) final rule on vehicle modifications for individuals with disabilities. You ask about the applicability of that rule to a conversion that requires a lowered floor and the installation of a power transfer seat, mechanical hand controls, a steering spinner, an automatic wheelchair lift, and a power door opener. You are concerned that such a conversion may affect the vehicle's compliance with FMVSS No. 105, Hydraulic and electric brake systems, FMVSS No. 206, Door locks and door retention components, FMVSS No. 208, Occupant crash protection, and FMVSS No. 301, Fuel system integrity.

By way of background, 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. That statute is the National Traffic and Motor Vehicle Safety Act of 1966 ("Vehicle Safety Act") (49 U.S.C. '' 30101, et seq.).

One of the agency's most important functions under that Act is to issue and enforce the 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.

The Vehicle Safety Act also 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 FMVSS (49 U.S.C. 30122). If NHTSA determines that a business has violated the make inoperative provision, it may assess a civil penalty in the amount of $5,000 per violation (not to exceed $15,000,000 in the aggregate). NHTSA may, 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). The exception, codified at 49 CFR Part 595, was limited to modifications made after the first retail sale of the vehicle. Accordingly, it does not apply to vehicle manufacturers or alterers. Vehicle modifiers, i.e., businesses that modify a vehicle after first retail sale, may not modify a vehicle in such a way as to negate the vehicle's compliance with any applicable FMVSSs for which there is no exemption, although the modifier is not required to certify compliance with all applicable standards.

While portions of several FMVSSs, including FMVSS No. 208, are included in the Part 595 exemption, FMVSS No. 105, FMVSS No. 206, and FMVSS No. 301 are not. I note however that, by its terms, FMVSS No. 206 does not apply to vehicle doors that are equipped with a wheelchair lift as long as the lift system has either an audible alarm or a visual alarm that can be seen by the driver of the vehicle.

Because there is no exemption related to fuel systems, or to hydraulic or electric brake systems, ⁽¹⁾ vehicle modifiers must take care to ensure that they do not modify the fuel and brake systems in a manner that takes the vehicle out of compliance with FMVSS No. 301 or FMVSS No. 105. The surest way to do so would be to purchase vehicles in which any needed changes were already made by the vehicle manufacturer or alterer, who has certified compliance with FMVSS No. 105 and FMVSS No. 301. Another way would be to modify the vehicle pursuant to a specific protocol based on analysis of compliance testing in accordance with those two standards. For example, we believe that the National Mobility Equipment Dealers Association (NMEDA) has successfully crash-tested a vehicle with a lowered floor and that it provides an explanation of how to make such a modification without compromising compliance with the FMVSS to its Quality Assurance Program (QAP) members. Although it might be possible for a modifier to use engineering analysis alone to determine whether a modification would take a vehicle out of compliance with the standards, this option is risky since there would be no compliance test data to verify the soundness of the modifier's judgment.

As noted above, portions of FMVSS No. 208 are included in the Part 595 exemption from the make inoperative provision. Specifically, those portions of FMVSS No. 208 that require an air bag (S4.1.5(a)(1), S4.1.5.1(a)(3), S4.2.6.2, and S5) or address seat belt adjustment (S7.1), seat belt latch assembly (S7.2), or seat belt comfort and convenience (S7.4) are included in the exemption as long as the affected seating position has a Type 2 or Type 2A seat belt that meets the requirements of 49 CFR 571.209 and 49 CFR 571.210.

NHTSA cannot provide information as to whether the types of potential modifications you have discussed would have the effect of taking the vehicle out of compliance with any of the safety standards addressed in this letter or whether they would fall within the exemption in 49 CFR Part 595. That responsibility lies with the modifier. Accordingly, we urge vehicle modifiers to work closely with the vehicle manufacturers to determine whether a potential modification would take a vehicle out of compliance and to ensure that a modification that is subject to the Part 595 exemption is done consistent with the exemption.

I hope the addresses your concerns. Please contact Rebecca MacPherson of my staff at this address or at (202) 366-2992 should you have any additional questions about this matter.

Sincerely,

John Womack
Acting Chief Counsel

ref:595
d.12/14/01





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¹ Part 595 does include an exemption from the requirement in FMVSS No. 135 that the brake be pedal-operated.

ID: 06-007782jeg

ID: nht92-8.29

DATE: March 9, 1992

FROM: Robert S. McLean, Esq. -- King & Spalding

TO: Paul Jackson Rice -- Chief Counsel, NHTSA

TITLE: None

ATTACHMT: Attached to letter dated 3/30/92 from Paul J. Rice to Robert S. McLean (A39; Std. 208; Std. 209

TEXT:

I am writing to request a NHTSA interpretation of two basic sections of Federal Motor Vehicle Safety Standards ("FMVSS") No. 208, Occupant Crash Protection and No. 209, Seatbelt Assemblies (49 C.F.R. S 571.208 and S 571.209, respectively). My request for interpretation specifically deals with the application of FMVSS 208 and 209 to an occupant restraint system which has a seat belt portion consisting of a two-point automatic motorized shoulder belt and a manual lap belt. This system is of the type used in the 1980-81 Toyota Cressida and also is used on several Nissan and Ford vehicles. Please assume the system is used only on automobiles manufactured before September 1, 1989. For the purposes of this letter, please also assume that this occupant restraint system is certified as complying with the frontal crash Protection requirements of FMVSS 208, S5.1 using only the two- point automatic motorized shoulder belt (without the use of the manual lap belt).

First, we understand that the two-point automatic shoulder belt used in the above-mentioned system is not a "Type 2a shoulder belt" as defined in FMVSS 209, S3. This understanding is based first on the definition of "Type 2a shoulder belt" in FMVSS 209, S3, which states that a "Type 2a shoulder belt" is "an upper torso restraint for use ONLY in conjunction with a lap belt as a Type 2 seat belt assembly." (emphasis added). Pursuant to the definition of "Type 2a shoulder belt", the two-point automatic motorized shoulder belt cannot be a "Type 2a shoulder belt" because (i) the definition of "Type 2a shoulder belt" states that the Type 2a shoulder belt is for use "only in conjunction" with the lap belt, while (ii) FMVSS 208, S.4.1.2.1 requires that the two-point automatic motorized shoulder belt must be used without the manual lap belt in order to comply with that option. Our understanding is based, second, on the fact that FMVSS intended that the Type 2a shoulder belt be used in conjunction with a Type 1 seat belt assembly to meet the requirements of a Type 2 seat belt assembly. 32 Fed. Reg. 3390 (1967). See also 49 C.F.R S 571.209, S3. NHTSA has consistently recognized the distinction between a Type 2 seat belt assembly (and therefore the Type 2a shoulder belt and Type 1 seat belt assembly combination which can make up that system) and automatic belts, holding that an automatic belt is not a Type 2 seat belt assembly. See NHTSA interpretation letter to David E. Martin from Erika Z. Jones, NHTSA Chief Counsel, dated April 14, 1986 (attached as Exhibit "A" for your convenience). Therefore the two-point automatic motorized shoulder belt mentioned above cannot be a Type 2a

shoulder belt because a Type 2a shoulder belt is a component part of a Type 2 seat belt assembly, and an automatic belt is not a Type 2 seat belt assembly. In fact, an automatic belt is not a term defined under FMVSS 209. Third, FMVSS 209, including the definition of "Type 2a shoulder belt," generally does not apply to automatic belts that are certified as complying with the occupant crash testing requirement of FMVSS 208, such as the two-point automatic motorized shoulder belt mentioned above. See NHTSA interpretation letter to Frank Pepe from Frank Berndt, NHTSA Chief Counsel, dated September 12, 1979 (attached as Exhibit "B" for your convenience). In general, a Type 2a shoulder belt is a shoulder belt that is detachable from a lap belt and when detached cannot function as a shoulder restraint, as does the two-point automatic motorized shoulder belt. Therefore, please confirm that the two-point automatic motorized shoulder belt is not a "Type 2a shoulder belt."

Second, we understand that the two-point automatic motorized shoulder-belt is not required to be accompanied by the warning which FMVSS 209, S4.1(1) requires accompany a Type 2a shoulder belt. Our understanding is based upon three basis. First, the warning is not required to accompany the two-point automatic motorized shoulder belt because the two-point automatic motorized shoulder belt is not a "Type 2a shoulder belt" for the reasons discussed above. Second, the rational behind the FMVSS 209, S4.1(1) warning requirement does not apply to the two-point automatic motorized seat belt. A Type 2a shoulder belt unattached to a lap belt is dysfunctional, so FMVSS 209 required that the user be instructed to hook the shoulder belt to the lap belt. This rationale does not apply to the two-point automatic motorized shoulder belt, as it is never hooked up to the lap belt, and does not need to be in order to function. Third, the language of FMVSS 208, S4.5.3.4, as interpreted by the NHTSA interpretation letter to Frank Pepe from Frank Berndt, NHTSA Chief Counsel, dated September 12, 1979 (Exhibit "B"), states that an automatic belt, such as the two-point automatic motorized shoulder belt, which is certified as complying with the crash testing requirements of S5.1 (which, as we have stated, the two-point automatic motorized shoulder belt does) is not required to conform to the requirements of Standard No. 209. In fact, FMVSS 208, S4.5.3.4 as interpreted by the Pepe letter states that the two-point automatic motorized shoulder belt is not required to comply with any of the requirements of FMVSS 209, S4.1. Therefore, please confirm that (i) the two point automatic motorized shoulder belt is not required to be accompanied by the warning which FMVSS 209, S4.1(1) requires accompany a Type 2a shoulder belt, and (ii) that the two- point automatic motorized shoulder belt is not required to meet any of the requirements of FMVSS 209, S4.1.

In summary, we ask that you please confirm that: (i) the two- point automatic motorized shoulder belt is not a "Type 2a shoulder belt;" (ii) the two-point automatic motorized shoulder belt is not required to be accompanied by the warning which FMVSS 209, S4.1(1) requires accompany a "Type 2a shoulder belt;" and (iii) the two-

point automatic motorized shoulder belt is not required to meet any of the requirements of FMVSS 209, S4.1.

Thank you for your help in construing these regulations as they apply to the two-point automatic motorized shoulder belt and manual lap belt restraint system.

If you need any additional information or clarification, please call at (404) 572-3599.

ID: 003059 bts

Mr. Joe Masci
Pollak Switch Products Division
300 Dan Road
Canton, MA 02021

Dear Mr. Masci:

This responds to your May 2, 2003, faxed letter and your telephone conversations with Mr. Otto Matheke of my staff concerning the application of Federal Motor Vehicle Safety Standard (FMVSS) No. 209, Seat belt assemblies, to a seat belt tension sensor (BTS). You stated that the BTS is used in conjunction with a passenger weight classification system to prevent misclassification of children seated in child safety seats. Your letter asked several questions as to how a seat belt assembly using a seat belt tension sensor would be tested for compliance with Federal standards. Each of your questions is addressed below.

1. General Applicability of FMVSS No. 209.

You asked if the BTS would be considered part of the seat belt assembly under FMVSS No. 209, or if it would be considered an anchorage under FMVSS No. 210, Seat belt assembly anchorages, which is a vehicle standard. S3 of FMVSS No. 210 defines a seat belt anchorage as:

[A]ny component, other than the webbing or straps, involved in transferring seat belt loads to the vehicle structure, including, but not limited to, the attachment hardware, seat frames, seat pedestals, the vehicle structure itself, and any part of the vehicle whose failure causes separation of the belt from the vehicle structure.

Accordingly, FMVSS No. 210 applies to fixed attachment points on the vehicle structure and the associated hardware. FMVSS No. 209 applies to seat belt assemblies, defined as:

[A]ny strap, webbing, or similar device designed to secure a person in a motor vehicle in order to mitigate the results of any accident, including all necessary buckles and other fasteners, and all hardware designed for installing such seat belt assembly in a motor vehicle. (S3 of FMVSS No. 209)

In your phone conversation, you stated that the BTS is sold to manufacturers of seat belt assemblies and may be placed in a variety of positions on the assembly. As a component of the seat belt assembly, the BTS would be subject to the requirements of FMVSS No. 209. However, because the BTS may be incorporated into a seat belt system in a variety of ways, we are unable to determine whether the BTS could ever be considered a seat belt anchorage under FMVSS No. 210.

2. FMVSS No. 209 Strength requirements

In your letter you included a diagram properly identifying the components of a Type 2 seat belt assembly and asked for verification of the strength requirements for each labeled component. The strength requirements for FMVSS No. 209 are contained in: S4.2, webbing; S4.3, hardware; and S4.4, assembly performance.

Under S4.2(b), webbing in the pelvic restraint portion of a Type 2 seat belt assembly must have a breaking strength of not less than 22,241 N (5,000 pounds). The upper torso portion of a Type 2 seat belt assembly must have a minimum breaking strength of 17,793 N (4,000 pounds). The testing procedure for both portions of webbing is contained in S5.1(b).

S4.3(c) requires that attachment hardware bolts used to secure the pelvic restraint of a seat belt assembly must be able to withstand a force of at least 40,034 N (9,000 pounds) when testing in accordance with S5.2(c)(1). Other attachment hardware designed to receive the ends of two seat belt assemblies shall withstand a tensile force of at least 26,689 N (6,000 pounds) when tested under S5.2(c)(2).

S4.4 sets forth the strength requirements of a Type 2 seat belt assembly in subsection (b). Under S4.4(b)(1), each structural component in the pelvic restraint must withstand a force of not less than 11,120 N (2,500 pounds). This includes the BTS, if it is located along the pelvic portion of the pelvic restraint. S4.4(b)(2) requires that each structural component in the upper torso restraint portion of the seat belt assembly be able to withstand a force of not less than 6,672 N (1,500 pounds). This includes a torso guide loop and retractor if the design permits only upper torso restraint forces on the restraint. Under S4.4(b)(3), any structural component that is common to both the pelvic and upper torso restraints must withstand a force of not less than 13,345 N (3,000 pounds). This would include any buckle or portion of the BTS that would be subject to forces from both the pelvic and upper torso restraints. The seat belt assembly performance for a Type 2 seat belt assembly is tested by the procedure specified in S5.3(b).

3. Procedure for Testing Assembly Performance

In your letter you asked what would be the proper method of attaching and orienting an assembly with a BTS under the test procedures in S5.3. Under S5.3, each end of the pelvic or torso portion of the belt assembly is attached to an anchorage bar to form a loop over rollers on a testing machine. (See FMVSS No. 209 Figure 5, enclosed.) The anchor points are such that the webbing is parallel in two sides of the loop. The attaching bolts are either aligned with or at an angle of 45 or 90 degrees to the webbing, whichever results in an angle nearest to 90 degrees between webbing and attachment hardware.

You stated that you believe the appropriate testing method for an assembly with the "BTS installed between the fixed anchor on the pelvic-only side of the belt and the belt webbing" would be to utilize the procedure in S5.3(a)(2) for a "nonthreaded anchorage." Such a determination would be governed by the specific application of the belt assembly and not by the presence of a BTS. S5.3(a)(2) declares that testing will be performed in accordance with the installation instructions provided with belts designated for use in specific models of vehicles. In such an instance, the anchorages of the vehicle-specific assembly would be installed for testing so as to produce the maximum angle in use indicated by the installation instructions. From your letter and phone conversations, the BTS is sold to seat belt assembly manufacturers for eventual use in a variety of vehicle models. As such, the "nonthreaded anchorage" procedure would only be appropriate in those instances where the BTS is incorporated into a seat belt assembly that is designed for a specific vehicle and is accompanied by instructions for installation specific to that vehicle.

For the assembly you specified, compliance testing would require the attaching bolts to be set according to the general set-up procedure. The attaching bolts would be positioned under S5.3(a)(2) such that the angle between the webbing and the attachment hardware is as close to 90 degrees as possible.

4. Minimum Force Requirements for Assembly Performance

In your letter you asked if the force minimums listed for the Type 2 belt component strength requirements apply to each component individually or to the test loop as a whole. The answer is that these force requirements apply to the components and not to the test loop. Under S4.4(b) of FMVSS No. 209, for a Type 2 belt, the structural components in the pelvic restraint must withstand a force of not less than 11,120 N (2,500 pounds), the structural components in the upper torso restraint must withstand a force of not less than 6,672 N (1,500 pounds), and structural components that are common to the pelvic and upper torso restraints must withstand a force of not less than 13,345 N (3,000 pounds). The test procedure for Type 2 belt assembly components requires a tensile force equal to that of the appropriate minimum be applied to the components (S5.3(b)). Therefore, in compliance testing of the pelvic restraint portion of a Type 2 seat belt assembly, a force of 22,240 N (5,000 pounds) would be applied to the test loop. The application of the 22,240 N (5,000 pounds) would be required so that the components would experience a tensile force of 11,120 N (2,500 pounds); the minimum required.

We note that in a letter to Mr. Douglas Kubehl, dated March 16, 1992, we took the position that under S4.4(b) and the corresponding procedure in S5.3(b), the minimum force requirement would be applied to the test loop. However, we have reconsidered that interpretation and conclude that it was incorrect. The previous interpretation would result in Type 2 seat belt assembly components being tested to much lower force requirements than components in a Type 1 seat belt assembly. However, it is our understanding that all manufacturers of Type 2 seat belt assemblies have built and tested their products in a manner consistent with this revised interpretation, so this revision will not cause any seat belt assemblies (or the vehicles in which they are installed) to become noncompliant. To the extent a manufacturer has relied upon our previous interpretation, we will only pursue an enforcement action for noncompliance with the standard prospectively.

5. Manual Belts Subject to the Requirements of FMVSS No. 208

In your letter, you ask if you are correct in understanding that the strength requirements of S4.4 do not apply if the requirements of S5.1 of FMVSS No. 208 are met instead. Your understanding is correct. Under S4.6 of FMVSS No. 209, manual seat belt assemblies subject to the requirements of S5.1 of FMVSS No. 208, Occupant crash protection, would not be required to meet the requirements of S4.2(a)-(f) and S4.4 of FMVSS No. 209. [1] This includes the FMVSS No. 209 strength requirements for seat belt assembly components.

You further ask, "how frequently do vehicle manufacturers opt for the 208 test option over the static component strength tests in 209?" A seat belt assembly subject to FMVSS No. 209 must comply with that standard, and be certified by its manufacturer as conforming to that standard. We do not collect or maintain data on how vehicle manufacturers certify with respect to their seat belt assemblies, although NHTSA may examine a manufacturer's certification in connection with any prospective or pending enforcement action. As such, we do not know with what frequency manufacturers opt for the FMVSS No. 208 compliance option.

I hope you find this information helpful. If you have any further questions, please contact Mr. Chris Calamita of my staff at (202) 366-2992.

Sincerely,

Jacqueline Glassman
Chief Counsel

Enclosure
ref:209
d.7/16/03





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[1] Excepted from this provision are seat belts that are subject to S4.1.2.1(c)(2) of FMVSS No. 208, which cross references FMVSS No. 209. S4.1.2.1(c)(2) does not apply to vehicles manufactured on or after September 1, 1986.

ID: nht87-1.51

TYPE: INTERPRETATION-NHTSA

DATE: 03/20/87

FROM: AUTHOR UNAVAILABLE; Erika Z. Jones; NHTSA

TO: M.B. Mathieson -- Direcdtor of Engineering, Thomas Built Buses, L.P.

TITLE: FMVSS INTERPRETATION

TEXT:

Mr. M.B. Mathieson Director of Engineering Thomas Built Buses, L.P. P.O. Box 2450 High Point, NC 27261

This is in reply to your letters to Francis Armstrong, Robert Williams, and Taylor Vinson, all of this agency. I regret the delay in this reply.

In summary, Thomas wishes to mount a body of its construction to a "General Motors chassis model #G31303, certified by G.M. to have a 10,000 lbs. maximum GVWR." Two prototypes have been operating. In testing for compliance with the frontal impact require ments of Standard No. 301, the rate of fuel leakage from a pinched or broken fuel line greatly exceeded the amount permitted by the standard. The test conducted by Thomas used sandbags to simulate occupant loading, and the impact velocity was reported to be 30.4 m.p.h. You have asked the following four questions:

"1. Does the result of the frontal barrier crash test with the discovered fuel leak constitute a safety defect?"

"2. Does the result of the frontal barrier crash test with the discovered fuel leak constitute an apparent or alleged noncompliance with FMVSS 301 requirement?"

The results of the frontal barrier crash test do not constitute an alleged or apparent noncompliance with Standard No. 301 as the impact velocity exceeded the 30 m.p.h. maximum test requirement. In addition, the vehicle's test weight in your test exceede d the test weight specified in S7.1.6(b) of the standard. Further, those results do not constitute a safety related defect regardless of the use of the vehicle. For NHTSA to find a safety related defect at 30.4 m.p.h. would be the equivalent of imposing a new standard without following Administrative Procedure Act requirements for rulemaking.

However, in our view, Thomas could not in good faith certify compliance of the completed bus with the 30 m.p.h. requirements if there was a failure when a correctly loaded bus was tested at 30.4 m.p.h and no counterbalancing data showing passes in other tests. Had NHTSA conducted a test at 30.4 m.p.h. and found a failure, it would have proceeded to conduct another test in accordance with the specifications of Standard No. 301 and test at a speed slightly less than 30 m.p.h. and with a Part 572 dummy in the driver's seat.

3. "What is NHTSA's interpretation of the correct vehicle test weight for FMVSS 301 certification testing of school buses and non school buses for vehicles in the under and up to 10,000 lbs.' class and equipped with seat belts required to comply with FMV SS 208?"

The test weight is set forth in paragraph S7.1.6(b) of Standard No. 301. That section provides that a "bus with a GVWR of 10,000 pounds or less is loaded to its unloaded vehicle weight, plus the necessary test dummies as specified in S6., plus 300 pounds or its rated cargo load and luggage capacity weight, whichever is less,...."

4. "If Thomas Built Buses performs a certification test to the requirements of FMVSS 301 with a similar vehicle (equipped with required seat belts which are required to comply with FMVSS 208) at a test weight as noted by GM (approximately 7,500 pounds) a nd the results show full compliance, what is the legal status or implication of completing and offering for sale this type of vehicle at a GVWR of up to 10,000 lbs. and indicating that it complies with FMVSS 301 on the basis of a successful test at the l ower GVWR."

This question cannot be answered because the facts stated in your question appear to be incorrect. Our review of the documentation you enclosed shows that GM has rated the incomplete vehicle at 10,000 pounds GVWR, rather than at approximately 7,500 pound s GVWR, as stated in your letter. GM has, however, specified the maximum unloaded vehicle weight as 6866 pounds, and stated that the completed vehicle will comply if its unloaded vehicle weight does not exceed this amount. It has also stated that the max imum unloaded vehicle weight plus 634 pounds (which, when added to 6866 pounds equals 7500 pounds) cannot exceed the vehicle's GVWR, which is 10,000 pounds in this case. GM therefore has made no representation that its incomplete vehicle will meet Standa rd No. 301 at weights outside those values, and the burden of certification falls upon the final stage manufacturer who completes the vehicle in a manner outside the limits cited by GM.

I hope that this answers your questions.

Sincerely,

Erika Z. Jones Chief Counsel

June 11, 1986

NATIONAL HIGHWAY TRAFFIC SAFETY ADMINISTRATION 400 7th Street, S.W. Washington,D.C. 20590

Attn: Mr. Francis Armstrong, Director Office of Vehicle Safety Compliance

Attn: Mr. Taylor Vinson, Office of Chief Counsel

Attn: Mr. Robert Williams, Office of Vehicle Safety Standards

RE: FMVSS 301 Fuel System Integrity

Gentlemen,

This letter is in reference to telephone conversations of June 9, 1986, with Mr. Martin Paliokas, Mr. Bob Krause, and Mr. Robert Williams regarding a possible safety defect, and/or a possible non-compliance with FMVSS 301. This instance involves a Thomas Minotour Model school bus, in the "10,000 lbs. or under" class GVWR.

Thomas Built Buses, L.P. proposes to mount the body of this model school bus on a General Motors chassis model #G31303, certified by G.M. to have a 10,000 lbs. maximum GVWR, and has, in fact, had two prototype vehicles operating in public service for som e time.

Pursuant to FMVSS 222, para. S5(b), Requirements, each of these vehicles is equipped with seat belts at each designated seating position, that meet the applicable requirements of 571.208 and 571.209, etc., as specified in para. S5(b).

Due to some proposed body structural changes, Thomas Buses elected to perform durability testing and barrier crash tests on the final configuration of the proposed vehicle. After completion of the durability testing, which comprises 4,000 miles of operat ion over a prescribed test track program at Transportation Research Center in East Liberty,Ohio, the vehicle was completely inspected, including the chassis. No deterioration or distress of any nature was found. The vehicle was then transferred to the fa cilities of Arvin/Calspan Advanced Technology Center in Buffalo, N.Y. for barrier crash testing.

For purposes of continuity and repeatability Thomas elected to use the barrier crash requirements as specified in FMVSS 301 for this portion of our test program. To determine the vehicle loaded condition to be used for the lateral moving barrier crash an d the frontal barrier crash, we noted the following requirement of FMVSS 301.

Para.S6.1 Frontal Barrier Crash:

When the vehicle, traveling longitudinally forward at any speed up to and including 30 mph impacts......with 50th percentile test dummies as specified in Part 572 of this chapter at each front outboard designated seating position and at any other positio n whose protection system is required to be tested by a dummy under the provisions of Standard 208 .... ..fuel spillage shall not exceed the limits of S5.5.

Para. -S6.3 Lateral Moving Barrier Crash:

When the vehicle is impacted on either side....with 50th percentile test dummies as specified in Part 572 of this chapter at positions required for testing to standard No. 208...... fuel spillage shall not exceed the limits of S5.5.

Thomas Built Buses interpreted the above requirements of FMVSS 301 as intending to require that testing of school buses "at or under" 10,000 lbs. GVWR be performed at a GVWR approximating the loaded passenger weight, as is required for school buses with GVWR in excess of 10,000 lbs. (Specified in FMVSS 301, para. S7.1.6(c).) Accordingly, since our design passenger weight for this vehicle would bring the GVWR very close to 10,000 lbs. maximum GVWR, Thomas elected to test the vehicle loaded with sand bags to simulate the final vehicle configuration with a full passenger load.

On May 28, 1986, Arvin/Calspan performed the lateral moving barrier crash per the requirements of FMVSS 301 with the vehicle at approximately 10,000 lbs. GVWR. The vehicle was again completely inspected. Other than minor sheet metal deformation in the ar ea of the fuel tank filler neck no damage was noted to body or chassis. The test successfully demonstrated compliance with FMVSS 301 to this point. (Static rollover testing was not done.)

On May 29, 1986, Arvin/Calspan performed the frontal barrier crash per the requirements of FMVSS 301. Impact velocity was reported to be 30.4 miles per hour. A significant amount of crushing was experienced at the front of the vehicle in the cab/engine a rea. Inspection revealed that just beside and behind the right front wheel the chassis frame rail had distorted severely, pinching or breaking one or more fuel lines that are tied to the frame rail in the G.M. "as delivered" configuration. Rate of leakag e from this fuel line significantly exceeded the limits of FMVSS 301, para. S5.5 and appeared to be siphoning fuel from the main tank which was positioned higher than the fuel line break. The leak was stopped by pinching the line between the tank and the leak area.

Upon contacting G.M. personnel regarding the results of our testing, we were directed by them to the Incomplete vehicle document statements regarding their certification limitations. As we understand this document, even though the chassis is certified as being able to be completed as a school bus with a 10,000 lbs. GVWR, the G.M. certification testing to FMVSS 301 requirements was limited to a GVWR of approximately 7,500 lbs., which is apparently G.M.'s understanding of the FMVSS 301 requirements.

The following items are enclosed for your assistance in under standing our questions in this matter:

a) The G.M. document for Incomplete Vehicle.

b) Pictures of the vehicle before and after frontal barrier crash testing to show the area of concern.

Thomas Built Buses, L.P. respectfully submits the following questions:

1. Does the result of the frontal barrier crash test with the discovered fuel leak constitute a safety defect?

2. Does the result of the frontal barrier crash test with the discovered fuel leak constitute an apparent or alleged non-compliance with FMVSS 301 requirement?

3. What is NHTSA's interpretation of the correct vehicle GVWR for FMVSS 301 certification testing of school buses and non-school buses for vehicles in the "under and up to 10,000 lbs." class and equipped with seat belts required to comply with FMVSS 208?

4. If Thomas Built Buses performs a certification test to the requirements of FMVSS 301 with a similar vehicle (equipped with required seat belts which are required to comply with FMVSS 208) at a GVWR as noted by G.M. (approximately 7,500 lbs.) and the r esults show full compliance, what is the legal status or implication of completing and offering for sale this type of vehicle at a GVWR of up to 10,000 lbs. and indicating that it complies with FMVSS 301 on the basis of a successful test at the lower GVW R?

Thomas Built Buses has presently stopped all further work on the development of this model. In expectation of a successful test program, considerable amount of money has been spent on tooling, prototype parts, etc. Anything that could be done to expedite answers to the above questions would be most helpful in our determination of further action. Thank you.

Sincerely yours,

THOMAS BUILT BUSES, L.P. M. B. MATHIESON, Director of Engineering

ID: 000374cmc

Mr. James W. Freiburger
Thomas Built Buses
PO Box 2450 (27261)
1408 Courtesy Road
High Point, NC 27260

Dear Mr. Freiburger:

This responds to your letter and phone conversation with Rebecca MacPherson of my staff, in which you asked if a multipurpose passenger vehicle (MPV) designed to meet Federal school bus standards would be exempted from the requirements of Federal Motor Vehicle Safety Standard (FMVSS) No. 206, Door locks and retention components. As explained below, an MPV is subject to all the relevant standards for an MPV, including FMVSS No. 206. However, in the limited circumstance where an MPV meets all of the Federal crashworthiness requirements for a school bus, we have decided we will not enforce the back door requirements of FMVSS No. 206.

In your letter you stated that some of your customers have requested "nine-passenger school bus[es] without traffic control devices." You further stated that these vehicles:

would meet all federal requirements for school buses with the exception of the requirements for flashing lights and stop arms and would also meet FMVSS [No.] 208[, Occupant crash protection,] requirements for MPV. The MPV would be equipped with a rear emergency door that meets the school bus requirements of FMVSS No. 217 [, Bus emergency exits and window retention and release].

You expressed concern that the lock and latch position standards required under FMVSS No. 206, but not under FMVSS No. 217 could decrease the safe operation of the back emergency door in emergency situations.

The application of a specific FMVSS is based, in part, on how a vehicle is classified for the purpose of the safety standards. Under 49 CFR 571.3, Definitions, an "MPV" is a motor vehicle with motive power designed to carry 10 persons or less which is constructed either on a truck chassis or with special features for occasional off-road operation. Conversely, a "bus" is any vehicle that has a capacity of 11 persons or more. A "school bus" is a "bus" that is sold to transport children to or from school or school-related events. Because the vehicle you described would be designed to carry 10 persons (9 passengers plus the driver) it would be an MPV for purposes of the FMVSSs and not a school bus, even though it would be designed to meet the Federal school bus safety standards (with the exception of the flashing lights and stop arm requirements). As such, the vehicle would be required to meet the back door lock and latch requirements of FMVSS No. 206.

The rear door on the vehicle you described would not meet the requirements of FMVSS No. 206. The requirements of FMVSS No. 206 are designed to reduce the possibility of occupant ejection from a vehicle resulting from a door opening while the vehicle is in motion or involved in a collision. (50 Federal Register 12029; March 27, 1985.) To this end, S4.4.1 of FMVSS No. 206 requires hinged back doors on vehicles covered by the standard to be equipped with a primary latch and striker assembly, and S4.4.2 requires each back door to have a locking mechanism. The back door on the vehicle you described, meeting FMVSS No. 217, would not comply with FMVSS No. 206 because it would lack a striker. However, because it meets the FMVSS No. 217 requirements, we find that it would provide equivalent protection for occupant protection.

Your letter compared a rear emergency door that meets the requirements of FMVSS No. 217 to a door with a wheel chair lift, which is excluded from FMVSS No. 206. [1] A door equipped with a wheelchair lift that is linked to an alarm system to notify the driver if the door is open, is excluded from FMVSS No. 206 because, when closed, the lift acts as a barrier to the door opening in the event of a collision. An emergency door of the type you described offers no such protection.

In your phone conversation with Ms. MacPherson, you stated that your customers requested removal of the 10^th passenger seat so that drivers of these vehicles would not be required to obtain a commercial drivers license (CDL) as required under certain State laws. While we encourage your clients to use drivers who have a CDL, we realize that your customers may not always be able to employ such drivers to transport the children in their care. However, these drivers must be properly trained to drive these vehicles. [2]

The lack of employees with a CDL, and the resultant limitation on the facility's ability to use a school bus, may result in children being transported in MPVs that, while appropriately certified, do not meet the more stringent Federal school bus requirements. We wish to emphasize that school buses are one of the safest forms of transportation in this country, and that we strongly recommend facilities that care for children use vehicles that are certified as meeting all of the Federal crashworthiness standards for school buses when transporting the children in their care. Therefore, in the specific instance where an MPV meets all of the Federal crashworthiness requirements for school buses, we will not enforce the back door requirements of FMVSS No. 206.

I hope you find this information of use. If you have any additional questions, please contact Chris Calamita of my staff at (202) 366-2992.

Sincerely,

Jacqueline Glassman
Chief Counsel

ref:206
d.5/22/03





---

[1] We have determined that a bus door that has two separate leaves that operate together (through a linkage) by means of the same hand-operated control, and with each leaf pivoting outward towards a boarding passenger to form an opening, comes within the meaning of "folding door" for purposes of Standard No. 206, and is therefore excluded from that standard.See, letter to Mr. Bryce Pfister; November 1, 2002.

[2] Training material is available through the School Bus Driver In-Service Safety Series, located at the NHTSA Internet site ( http://www.nhtsa.dot.gov/people/injury/buses/).

ID: nht95-1.77

TYPE: INTERPRETATION-NHTSA

DATE: February 27, 1995

FROM: Philip R. Recht -- Chief Counsel, NHTSA

TO: Donald T. Hoy -- Senior Marketing Manager, Clean Air Partners

TITLE: None

ATTACHMT: ATTACHED TO 10/28/94 LETTER FROM DONALD T. HOY TO PHILIP R. RECHT (OCC 10469)

TEXT: This responds to your letter addressing this agency's regulations about converting school buses to run on a blended fuel combining diesel and compressed natural gas (CNG) or liquefied natural gas (LNG). You stated that your company manufactures a conver sion system that bolts on the original equipment manufacturer's diesel engine. While the diesel engine system remains intact and operates as designed during the dual fuel cycle, your conversion system serves to reduce the flow of diesel fuel to the engi ne and substitutes natural gas in its place. You further state that the system automatically reverts back to 100% diesel with no interruption in driveability if the supply of CNG is depleted.

You asked two questions about converting diesel powered school buses to dual fuel school buses that run on both conventional diesel fuel and alternative fuels such as CNG or LNG. You first ask whether there are any Federal regulations preventing the con version of a school bus from diesel to a dual fuel school bus. You then ask if there is any significance as to when the conversion system is installed on a school bus with regard to vehicle certification.

Before answering your specific questions, let me provide you with background information about the National Highway Traffic Safety Administration (NHTSA) and our regulations. NHTSA is authorized by Congress to issue Federal motor vehicle safety standard s (FMVSSs) that set performance requirements for new motor vehicles and items of equipment. NHTSA has used this authority to issue FMVSSs to ensure the fuel system integrity of vehicles powered by diesel fuels and those powered by CNG. Specifically, FM VSS No. 301 regulates the fuel system integrity of gasoline and diesel powered light vehicles with a gross vehicle weight rating (GVWR) under 10,000 pounds and all gasoline and diesel powered school buses regardless of GVWR. In addition, FMVSS No. 303 r egulates the fuel system integrity of CNG light vehicles and all school buses. Finally, FMVSS No. 304 regulates the integrity of CNG fuel containers. While FMVSS No. 301 has been in effect since the 1970s, the final rule establishing FMVSS No. 304 beco mes effective on September 1, 1995 and the final rule establishing FMVSS No. 303 becomes effective on March 27, 1995. The agency has not issued any FMVSS applicable to vehicles powered by LNG.

In response to your first question, no FMVSS or other NHTSA regulation prohibits the conversion of a diesel school bus to a dual fuel school bus. Nevertheless, FMVSS No. 301 requires each vehicle subject to the FMVSS, including each school bus, to have a limited amount of fuel leakage from the fuel system after being subjected to crash testing. Similarly, FMVSS No. 303 requires each vehicle subject to the FMVSS, including each school bus, to have a limited amount of pressure drop in the fuel system af ter being subjected to crash testing. Each school bus with a GVWR under 10,000 pounds is subjected to frontal, rear, and lateral barrier crash tests and each school bus with a GVWR of 10,000 pounds or more is subjected to a moving contoured barrier cras h test. With respect to a dual fuel vehicle, NHTSA explained in the final rule that "NHTSA has decided to require only one test on dual-fuel and bi-fuel vehicles that permits the amount of gaseous leakage specified in the CNG standard plus the amount of liquid leakage specified in Standard No. 301." (59 FR 19648, April 25, 1994.) In other words, after being subjected to the specified test crash or crashes, a dual fuel school bus may not leak more than the amount of fuel leakage permitted in FMVSS No. 3 01 plus the amount permitted in FMVSS No. 303.

In response to your second question, vehicle fuel system conversions are addressed in certain NHTSA provisions, whose application depends on when the work is done and who does the conversion. Under the statute and NHTSA's regulations, the first consumer purchase is the critical event by which certain responsibilities are specified. If your conversion system were installed as original equipment on a new vehicle, the vehicle manufacturer would be required by our certification regulations to certify that the entire vehicle (with your product installed) satisfies the requirements of all applicable FMVSS's, including the CNG fuel system standard once that FMVSS takes effect. If your conversion system were added to a new, previously-certified vehicle (e.g ., a new completed school bus), the person who adds the system would be required to certify that, as altered, the vehicle continues to comply with all of the safety standards affected by the alteration. This means that if you convert a school bus prior to the first consumer purchase, then you would be responsible for certifying that the school bus as manufactured conforms to all applicable FMVSS, including FMVSS No. 301 and, once FMVSS No. 303 and 304 take effect, those standards as well.

If you convert a bus after the first consumer purchase, you would not have any certification responsibilities under NHTSA's regulations. However, an installer that is a vehicle manufacturer, distributor, dealer or repair business would have to ensure th at it did not knowingly make inoperative, in whole or in part, the compliance of the vehicle with any applicable safety standard. Since all school buses are currently required to comply with FMVSS No. 301, any aspect of the conversion to a dual fuel sch ool bus must not make the diesel school bus more vulnerable to diesel fuel leakage or otherwise impair the school bus' fuel system integrity. After the September 1, 1995 effective date for FMVSS No. 303, any aspect of your conversion to a CNG/diesel sch ool bus to a dual fuel school bus must not make the school bus more vulnerable to fuel leakage.

The "make inoperative" provision does not apply to individual vehicle owners who alter their own vehicles. Thus, under our requirements, individual owners may install any item of motor vehicle equipment regardless of its effect on compliance with the FM VSS's. However, NHTSA encourages vehicle owners not to degrade the safety of their vehicles.

In addition, manufacturers of motor vehicles and items of motor vehicle equipment are subject to the statutory requirements concerning the recall and remedy of products with defects related to motor vehicle safety. In the event that NHTSA or the manufac turer of the container or vehicle determines that the product contains a safety-related defect, the manufacturer would be responsible for notifying purchasers of the defective equipment and remedying the problem free of charge.

With regard to additional requirements for vehicle conversions, you should also note that the Federal Highway Administration (FHWA) of this Department has operational and equipment requirements for commercial vehicles used in interstate commerce. For in formation about possible FHWA requirements affecting your conversions, you can contact that agency's Chief Counsel's office at (202) 366-0650.

I hope you find this information helpful. If you have any other questions, please contact Marvin Shaw at this address or by phone at (202) 366-2992.

ID: nht95-5.2

TYPE: INTERPRETATION-NHTSA

DATE: December 12, 1995

FROM: Lewis H. Goldfarb -- Assistant General Counsel, Chrysler Corp.

TO: Kenneth Weinstein -- Office of the Chief Counsel, NHTSA

TITLE: FMVSS 210 Compliance - 1995 Cirrus

ATTACHMT: 12/21/95 letter from Kenneth N. Weinstein to Lewis H. Goldfarb

TEXT: As we discussed last week, I am attaching a memorandum setting forth Chrysler's legal position regarding the above compliance review. I am also submitting a summary report of a compliance test performed on December 8, 1995 in accordance with the procedu res specified in FMVSS 210 and the published test protocol.

The test data confirm that the Cirrus satisfied the 3000 load requirement with a 20% margin at NHTSA's slower onset speed of 25 seconds. We believe this demonstrates full compliance with FMVSS 210.

As you know, the non-compliance found by OVSC staff in July was the result of a laboratory test that placed the pelvic body block 4 inches forward from the seat back. Our tests are conducted with the block positioned against the seat back. We advised OV SC staff in September that this alteration in the pelvic body block location significantly altered the stresses imposed on the rear seat anchorages as compared with the stresses imposed when the body block is positioned against the seat back. Since neit her the procedures specified in the standard nor the published laboratory test protocol specify the location of the body block, our compliance test represents a valid demonstration of compliance with the standard and should be accepted by OVSC.

The attached memorandum provides a legal analysis in support of our position. In essence, it shows that NHTSA's interpretation of the standard as requiring that compliance be achieved regardless of the placement of the body block is contrary to the Safet y Act mandate that standards "be stated in objective terms."

I would appreciate an opportunity to discuss this further after your review.

Attachments (2)

Enclosures

SEAT BELT ANCHORAGE (Summary Report)

Test Information

Test Number: 21095137 Test Type: FMVSS 210 Dev Date: 12/8/95 Time: 13:40:50 Technician/Engineer G. D. Redd/H. Farrah Model Year & Body: 1995 JA Body Component Description: 3-Passenger Rear Bench Seat; VIN # 1B3EJ56C1TN100005 Comments: Weldnuts For O/B Anchors, Anchor Brkts Str. Rrwd., Trailing Arm Brkts. Installed, Lap Belt Body Block Against Seatbacks, Lab Seat Belts Were Used. Units: English Sample Rate (Hz): 50 Sampling Duration (sec): 70

Required 10 sec. Actual Max. 10 sec. Peak Load Channel Name Load (lbs.) Load (lbs.) and % Achieved Lt. Shoulder, S/N-68869 3000.0 3626.2 + 20.9% 3632.1 Rt. Shoulder, S/N-68864 3000.0 3624.6 + 20.8% 3633.3 Lt. Lap. S/N-68860 3000.0 3624.4 + 20.8% 3632.4 Ct. Lap. S/N-68830 5000.0 6044.5 + 20.9% 6054.6 Rt. Lap. S/N-68820 3000.0 3626.6 + 20.9% 3632.5

(Charts omitted.)

MEMORANDUM

December 13, 1995

TO: Kenneth Weinstein, Esq.

FROM: Lewis Goldfarb, Esq.

RE: FMVSS 210 Compliance

This memorandum summarizes Chrysler's legal analysis in support of its position that the 1995 Cirrus LX vehicles comply with FMVSS 210.

A. The Chrysler Cirrus LX Complies with FMVSS 210.

In July 1995, Chrysler was notified by NHTSA's Office of Vehicle Safety Compliance that a 1995 Chrysler Cirrus LX apparently failed a compliance test measuring conformity with FMVSS 210 S4.2.2. The OVSC staff informed Chrysler personnel that the rear outboard driver-side anchorage bolt weld-nut did not sustain the 3,000 lb. load required by the referenced subsection of FMVSS 210.

After careful analysis by Chrysler, the company has confirmed its position that the 1995 Cirrus LX complies with FMVSS 210 when tested in accordance with the procedures specified in the standard and the published laboratory test protocol. Chrysler ha s also concluded that the NHTSA test result appearing to show noncompliance was attributable to the location of the pelvic body block during the NHTSA test. NHTSA's laboratory acknowledged that it placed the pelvic body block in the Cirrus test approxim ately 4 inches forward from the seat back. As the OVSC staff was advised by letter dated September 28, 1995, Chrysler has determined that this alteration in the pelvic body block location significantly altered the stresses imposed on the rear seat ancho rages, as compared with the stresses imposed when the body block is positioned against the seat back.

Although Chrysler initially believed that the apparent noncompliance was attributable to differences between NHTSA's comparatively slow load application rate (approximately 25 seconds) and Chrysler's faster load application rate (approximately 10 seco nds), Chrysler has now confirmed that the Cirrus meets the requirements of FMVSS 210 S4.2.2, even at the slower NHTSA load application rate, with the pelvic body block positioned against the seat back.

Chrysler has therefore determined that the only remaining issue is whether NHTSA's test can form the basis of a finding of noncompliance. In light of the obvious influence of the location of the pelvic body block -- a variable that is not specified i n the Standard or in the accompanying test procedures -- Chrysler respectfully submits that NHTSA's test does not demonstrate a noncompliance with FMVSS 210, and that NHTSA cannot sustain a finding of noncompliance on the basis of an unspecified test pro cedure.

B. NHTSA Cannot Lawfully Base a Noncompliance Determination on an Unspecified Test Procedure.

NHTSA's statutory authority to promulgate standards is governed by the provisions of Title 49 of the United States Code, Chapter 301 (Motor Vehicle Safety) (formerly the National Traffic and Motor Vehicle Safety Act). Chapter 301 provides that a moto r vehicle safety standard "shall be practicable, meet the need for motor vehicle safety, and be stated in objective terms." 49 U.S.C. @ 30111(a).

These statutory criteria for motor vehicle safety standards have been construed by the Federal courts to require NHTSA to specify objective criteria and test procedures for measuring compliance with each safety standard. In one of the first cases con struing NHTSA's safety standard-setting authority, the Court found as follows:

"The importance of objectivity in safety standards cannot be overemphasized. The Act puts the burden upon the manufacturer to assure that his vehicles comply under pain of substantial penalties. In the absence of objectively defined performance requirem ents and test procedures, a manufacturer has no assurance that his own test results will be duplicated in tests conducted by the Agency. Accordingly, such objective criteria are absolutely necessary so that 'the question of whether there is compliance wi th the standard can be answered by objective measurement and without recourse to any subjective determination.'

Objective, in the context of this case, means that tests to determine compliance must be capable of producing identical results when test conditions are exactly duplicated, that they be decisively demonstrable by performing a rational test procedure, and that compliance is based upon the readings obtained from measuring instruments as opposed to the subjective opinions of human beings."

Chrysler Corporation v. Department of Transportation, 472 F.2d 659, 675-676 (6th Cir. 1972) (two footnotes omitted) (quotation in first paragraph is from the House Report accompanying enactment of the National Traffic and Motor Vehicle Safety Act, H.R. 1 776, 89th Cong. 2d Sess. 1966 at p. 16).

The court went on to conclude that the provisions of FMVSS 208 under review at that time were not objective, because they permitted too much variability in the results of compliance tests conducted in literal compliance with the specified procedures.

Here, NHTSA has specified extensive test procedures for demonstrating compliance with FMVSS 210 within the text of the standard itself (S5. Test Procedures), and has supplemented those regulatory test procedures with a published laboratory test protoc ol, the latest version of which is TP-210-09. Neither the test procedures within the standard nor the accompanying test protocol makes any provision for locating the pelvic body block in the test vehicle for the anchorage loading compliance test. In the absence of a specification, Chrysler has consistently placed the body block against the seat back, which is the most natural and representative location for the body block. As far as Chrysler could ascertain from a review of prior NHTSA compliance tests , the agency has also customarily located the pelvic body block against the seat back during FMVSS 210 compliance tests.

On July 27, 1995, Chrysler representatives met with NHTSA compliance engineer Jeff Giuseppe and representatives of NHTSA's contractor, General Testing Laboratory. At that meeting, the Chrysler representatives were informed that NHTSA's contractor; GT L, moved the pelvic body block several inches forward of the seat back in order to prevent breaking the seat belt buckle during the load application test on the Cirrus.

This relocation of the pelvic body block away from the rear of the seat is not authorized by FMVSS 210 or its published test protocol. The rationale offered for the relocation - that the relocation was necessary to avoid breakage of the seat belt buc kle during the compliance test -- is inconsistent with the 1990 amendments to FMVSS 210 and the implementing instruction in the published test procedure.

In 1990, NHTSA addressed the very issue of the potential for breakage of the buckle or webbing during the anchorage loading test, and decided to resolve the potential breakage problem by authorizing the use of cables, chains or high strength webbing t o impose the load on anchorages during FMVSS 210 compliance testing, as long as the material used to apply the load to the anchorages duplicates the geometry of the original equipment webbing at that seating position at the initiation of the compliance t est. Final Rule amending FMVSS 210, 55 Fed. Reg. 17970 at 17980 (April 30, 1990); Final Rule responding to Petitions for Reconsideration, 56 Fed. Reg. 63676 at 63677 (December 5, 1991). In the 1990 Final Rule, NHTSA emphasized that its decision was inte nded to assure that "compliance testing should not result in unrealistic loading for the anchorages."

In the published test protocol, NHTSA implemented this amendment to FMVSS 210 by directing laboratories to address potential buckle or webbing breakage by replacing seat belt webbing and/or buckles in the area of the body blocks with wire rope. (See Sect ion 12, Compliance Test Execution.) At no time in the rulemaking or in the implementing test protocol has NHTSA ever suggested that the hardware breakage problem could or should be addressed by relocating the pelvic body block to some unspecified locatio n away from the seat back of the test vehicle.

In any event, it does not matter whether the relocation of the body block is helpful to the agency in avoiding compliance test difficulties. The important point is that the contractor's relocation of the pelvic body block has adversely affected the o utcome of the compliance test, by introducing a variable in the compliance test procedure that is not authorized by the NHTSA standard or its implementing published test protocol.

On its face, FMVSS 210 requires demonstration of anchorage strength under certain specified test conditions. Chrysler has demonstrated compliance with those requirements. It is only after NHTSA's contractor relocated the pelvic body block to a locat ion not specified in the standard and not consistent with NHTSA's own prior laboratory test reports, that the laboratory was able to show an apparent noncompliance in the case of the Cirrus.

NHTSA is required to specify objective requirements in its safety standards, and to specify repeatable test procedures by which compliance can be demonstrated. Chrysler Corp. v. Department of Transportation, 472 F.2d at 676. In the Cirrus matter, the NHTSA laboratory's relocation of the pelvic body block was not authorized by the FMVSS 210 test procedure or the published test protocol. Thus, NHTSA is attempting to demonstrate noncompliance on the basis of an unspecified test variable, which it cann ot do consistent with its obligation to specify repeatable test procedures. "Manufacturers are entitled to testing criteria that they can rely upon with certainty." Paccar, Inc. v. National Highway Traffic Safety Administration, 573 F.2d 632, 644 (9th C ir., 1978), cert. den. 439 U.S. 862 (1978).

Furthermore, NHTSA is not free to make changes in its compliance test procedures if those changes can affect the outcome of the compliance test, unless NHTSA provides adequate notice to the regulated industry. Absent such notice, NHTSA cannot retroac tively interpret FMVSS 210 to require compliance with the anchorage strength requirements with a relocated pelvic body block. General Electric Company v. U.S. EPA, 15 F.3d 1324, 1333-1334 (D.C. Cir. 1995) (even if agency interpretation of a standard is r easonable and entitled to deference on a prospective basis, it cannot be enforced retroactively if the standard does not "fairly inform" the regulated industry of the agency's perspective).

C. Conclusion.

NHTSA cannot base a determination of noncompliance with FMVSS 210 on a variable test procedure that is not specified in the Standard. To hold otherwise would sanction a wholesale departure from the fundamental requirement in Chapter 301 for "objectiv e" standards, compliance with which can be measured in accordance with repeatable, producible test procedures. Chrysler has demonstrated the Cirrus' compliance with FMVSS 210 in accordance with the regulatory test procedures and published test protocol. NHTSA's compliance investigation should be closed.

(Copy of page 64469 of the Federal Register (vol. 60, No. 241, 11-15-95) omitted here.)