ID: nht76-4.15

DATE: 09/30/76

FROM: AUTHOR UNAVAILABLE; R. L. Carter; NHTSA

TO: Rockwell International

TITLE: FMVSS INTERPRETATION

TEXT: This responds to Rockwell International's February 23, 1976, request for confirmation that the deactivation of automatic adjusters is acceptable during burnish procedures of Standard No. 121, Air Brake Systems, at the option of the manufacturer.

The procedure that you recommend is not permitted by any provision of Standard No. 121. The NHTSA would consider some provision to deal with the overadjustment of automatic adjusters upon receipt of technical data showing justification for such action. Based on consideration of the data received and a petition for amendment, the agency could commence a rulemaking proceeding in accordance with established procedures.

It should be noted that the option in FMVSS 105-75 that you describe requires that the automatic adjusters be deactivated for the entire test sequence, not just the burnish procedure.

Sincerely,

ATTACH.

February 23, 1976

National Highway Traffic Safety Administration Office of Crash Avoidance

Gentlemen:

Subject: Air Brakes - Automatic Adjusters

Rockwell International requests an interpretation of FMVSS #121 testing procedures as it relates to Rockwell cam and wedge brakes with automatic adjustment features.

Automatic adjusting air brakes are premium brakes having significant safety advantages in day to day operation. The automatic adjustment feature is offered on Rockwell cam and wedge brakes, single and dual actuated air and single and dual air/hydraulic units. The automatic adjusting feature enables vehicles to maintain their stopping capability when an otherwise manually adjusting brake would exceed available adjustment or "stroke." At the same time the automatic adjustment feature keeps brakes within a favorable operating range of the air chamber. This becomes more important with the improved brake performance required by FMVSS #121. It is noted that NHTSA has made proper allowance for automatic adjusting hydraulic brakes in the test procedures of FMVSS #105-75.

The accelerated brake burnishing required by FMVSS #121 results in rapid expansion of the brake drum and to a lesser extent brake lining, thereby preventing proper operation of the adjusters. It is, therefore, necessary to manually adjust the brakes for the test procedure.

Enclosed are copies of our recommended procedure for Rockwell International brakes with automatic adjusters when tested for FMVSS #121. It is requested that NHTSA review this procedure and advise that it is acceptable for testing under FMVSS #121. Secondly, it is requested that NHTSA allow for deactivation of automatic adjusters in the FMVSS #121 similar to the provisions of FMVSS #105-75 at the next opportunity.

Very truly yours,

ROCKWELL INTERNATIONAL, CORPORATION AUTOMOTIVE OPERATIONS;

William R. Rodger -- Vice President - Advanced Programs

Encls.

ID: 1982-1.9

TYPE: INTERPRETATION-NHTSA

DATE: 02/03/82

FROM: AUTHOR UNAVAILABLE; F. Berndt; NHTSA

TO: Rolls-Royce Motors Ltd.

TITLE: FMVSS INTERPRETATION

TEXT:

NOA-30 February 3, 1982

Mr. B. G. Ridgway Chief Car Safety and Regulations Engineer Rolls-Royce Motors Ltd. Car Division Crew, Cheshire CW1 3PL England

Dear Mr. Ridgway:

This responds to your letter concerning the labeling requirements of Standard No. 105 applicable to a separate indicator lamp concerning reservoir level. Your letter asked whether it is permissible to use words other than "Brake Fluid" for vehicles which use hydraulic system mineral oil rather than conventional brake fluid. As explained below, the answer is yes.

Section S5.3.5 of Standard No. 105 states in relevant part:

...If separate indicator lamps are used for one or more of the various functions described in S5.3.1(a) to SS.3.1(d), the lens shall include the word "Brake" and appropriate additional labeling (use "Brake Pressure," "Brake Fluid" for S5.3.1(a) and S5.3.1(b)) except that if a separate parking indicator lamp is provided, the single word "Park" may be used....

As your letter pointed out, conventional brake fluid and hydraulic system mineral oil are not compatible. Safety Standard No. 116, Motor Vehicle Brake Fluids, differentiates between "brake fluid" and "hydraulic system mineral oil."

We interpret section S5.3.5 to require the use of the words "Brake Fluid" only for vehicles which use conventional brake fluid. The section's use of the word "appropriate," prior to its statement that "Brake Fluid" be used for S5.3.1(b), indicates that the labeling set forth in the parentheses need only be used where it adequately describes the fluid being used. For vehicles which use hydraulic system mineral oil, or other types of non-conventional brake fluid which might be developed in the future, the general requirement for the word "Brake" and appropriate additional labeling is applicable.

We are concerned, however, about your proposed use of the words BRAKE HSMO/LHM, since we doubt that many persons would understand that HSMO/LHM is an abbreviation for hydraulic system mineral oil/liquide hydraulique minerale. We suggest that you consider using the words "BRAKE MINERAL OIL" or similar language that more persons would understand.

Sincerely,

Frank Berndt Chief Counsel

cc: Mr. Kenneth W. Preece Regulations and Special Projects Manager Rolls-Royce Motors, Inc.

Box 476 Lyndhurst, NJ 07071

The Administrator BGR DT National Highway Traffic Safety Administration 400, Seventh Street S.W. WASHINGTON D.C. U.S.A. 7th April, 1981

Possible PART 552 PETITION FOR RULEMAKING FEDERAL MOTOR VEHICLE SAFETY STANDARDS FMVSS 707-80 - CONTROLS AND DISPLAYS FMVSS 705-75 -HYDRAULIC BRAKE SYSTEMS

Dear Administrator,

Rolls-Royce Motors Limited believes that the requirements of these two standards, if strictly applied to the letter of the rules, force us into providing cars which have safety systems less safe than they would be with a less strict interpretation of the rules.

Rolls-Royce Motors Limited no longer uses BRAKE FLUID, as defined in FMVSS 776 in cars supplied to the USA market. HYDRAULIC SYSTEM MINERAL OIL (HSMO), again as defined and controlled by FMVSS 116, is used instead.

The braking systems provided in the cars have a comprehensive system of warning displays, separate displays being provided for the two pressure systems and a further display to warn if the level of the HYDRAULIC SYSTEM MINERAL OIL in either of the two separate reservoirs is too low.

FMVSS 101-80 controls the wording for this reservoir level warning display by its reference to FMVSS 105-75 in Table 2.

The specified wording in FMVSS 105-75 paragraph 5.3.5, for reservoir level, 5.3.7(b) is "Brake Fluid". We note that this wording is within parentheses and believe that it is intended to be advisory and we hope that you will accept our use of a different, safer, wording.

We are most concerned that the appearance of the words BRAKE FLUID would immediately bring to the minds of the driver and service personnel the thought of adding conventional brake fluid to the reservoir. This must not happen. As you know, and FMVSS 116 recognises, Brake Fluid and Hydraulic System Mineral Oil are NOT COMPATIBLE.

We have taken every care to label the reservoirs and the car, we have provided full customer and service information to avoid any risk of Brake Fluid being wrongly put into the reservoirs. If we can use different wording on the reservoir level warning display we can complete our safety information system without any ambiguity.

We therefore intend to use the following wording on the reservoir level warning display:-

BRAKE

HSMO/LHM

Where HSMO and LhM are abbreviations for Hydraulic system mineral oil and Liquide Hydraulique Minerale respectively. LHM will suit our Cars sent to Canada and it is a well known trade mark for HSMO.

In the interests of enhancing the safety of our products we intend to implement this change of wording at the earliest time.

We would appreciate your confirmation that our action will not be taken as non-compliance with either FMVSS 101-80 or FMVSS 105-75. Should you be unable to give this confirmation we hereby PETITION you to change FMVSS 105-75 paragraph S.5.3.5 so that it permits us to label our products in a manner which we feel is more safe.

Yours faithfully,

B. G. Ridgway Chief Car Safety and Regulations Engineer

ID: Maxon9759

S.Lafferty, Manager, Engineering
Maxon
16205 Distribution Way
Cerritos, CA 90703

Dear Mr.Lafferty:

This responds to your letter in which you raised several questions regarding Federal motor vehicle safety standard (FMVSS) No.403, Platform lift systems for motor vehicles.Your letter raised issues with the control illumination, attachment hardware, and interlock requirements of the standard.I have addressed each issue below.

By way of background, the agency established FMVSS Nos.403 in order to protect individuals that are aided by canes, walkers, wheelchairs, scooters, and other mobility devices and rely on platform lifts to enter/exit a motor vehicle.FMVSS No.403 is an equipment standard that specifies minimum performance requirements for platform lifts designed for installation on motor vehicles.The agency also established the companion standard FMVSS No.404, Platform lift installations in motor vehicles, which specifies requirements for vehicles equipped with platform lifts.

Illumination of Lift Controls

S6.7.6.2 of FMVSS No.403 requires that platform lift controls on a public use lift must be illuminated according S5.3 of FMVSS No.101, Controls and displays.In part FMVSS No.101 requires that the illumination of controls must be adjustable to provide at least two levels of brightness, one of which is barely discernible to a driver who has adapted to dark ambient roadway conditions.The low level of illumination is to minimize the impact of the illumination on a drivers night vision.

In your letter, you stated that the controls on the lifts manufactured by your company, Maxon, are not located in the driver compartment.As such, you stated that there is no need for a dual level of illumination as specified in FMVSS No.101.

The illumination requirement in FMVSS No.403 is applicable to all controls, regardless of location.An amendment to this requirement would have to be accomplished through the agencys rulemaking procedure.

Attachment Hardware

S6.3.1 of FMVSS No.403 requires that a lift manufacturer provide all of the attachment hardware necessary to install a lift on a vehicle.In your letter you stated that some installations may require longer bolts than that provided or that bolts may be lost during installation.You asked if Maxon would be permitted to specify attachment hardware by "grade, size, plating etc and allow substitute hardware" in those instances.

S6.13.1 requires a lift manufacturer to specify, either by make and model or by design elements, the vehicles on which the lift is designed to be installed.The attachment hardware provided must permit the installation of a lift on these vehicles.If a vehicle is listed under S6.13.1 that requires a longer bolt, then a longer bolt must be provided.

With regard to hardware lost during the installation process, we recognize that lift installers may need to obtain replacement hardware.Nothing in the standard prohibits a lift manufacturer from providing the hardware specifications in conjunction with the actual hardware.

Interlock requirements

Your letter correctly states that under S6.10.2.2 of FMVSS No.403, an interlock must prevent operation of a platform lift from a stowed position until forward and rearward motion of a vehicle is inhibited.You then asked what is required if during lift operation there is a failure of the interlock: should lift operation cease or continue in the event of such a failure?

FMVSS No.403 does not specify how a lift must operate in the event of an interlock failure.Therefore, it is up to the individual manufacturer to determine an appropriate default status.

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

Sincerely,

Jacqueline Glassman
Chief Counsel

ref:403#404
d.2/2/05

ID: 77-2.10

TYPE: INTERPRETATION-NHTSA

DATE: 04/15/77

FROM: AUTHOR UNAVAILABLE; R. L. Carter; NHTSA

TO: Wayne Corporation

TITLE: FMVSS INTERPRETATION

TEXT: This responds to your December 10, 1976, petition to amend Standard No. 222, School Bus Passenger Seating and Crash Protection. In your petition you request that the NHTSA withdraw the requirements for seat belts in buses with gross vehicle weight ratings (GVWR) of 10,000 pounds or less. Secondly, you suggest that the NHTSA reconsider the validity of establishing 10,000 pounds GVWR as the dividing line between buses that must be equipped with seat belts and those which need not be so equipped. The NHTSA denies your requested rulemaking.

The NHTSA mandated the installation of seat belts in school buses with GVWR's of 10,000 pounds or less, because these vehicles are subject to different crash pulses than larger school buses under the same accident circumstances. To ensure adequate protection for children transported in these vehicles, the NHTSA applied to small school buses some of the seating requirements mandated for larger buses plus the installation of seat belts. Since we are aware of no data indicating that small buses do not need the additional protection provided by seat belts, the NHTSA considers the necessary safety requirement.

The second recommendation in your petition suggests that the NHTSA classification of vehicles into two groups, one with GVWR's of 10,000 pounds or less and another with GVWR's greater than 10,000 pounds, is arbitrary. You indicate that a vehicle weighing slightly more than 10,000 pounds will not react in a crash situation significantly different than a vehicle slightly under 10,000 pounds. Accordingly, you suggest that there is no valid reason to have different requirements for buses within a relatively narrow weight range.

The NHTSA has historically classified vehicles into the two weight groupings you mention. This has been done in part because there are significant differences between large and small vehicles with respect to their reactions in crashes. The agency realizes that any line differentiating the two classes may seem arbitrary to manufacturers of vehicles that fall barely on either side of the line. Arguably, these vehicles, similar in many respects, would exhibit only minor differences in crash pulse in any given accident situation. Nonetheless, the classification is valid for the majority of vehicles in each class. Since we are aware of no data that would indicate that a line could better be drawn elsewhere, the NHTSA has decided to retain the present classification.

SINCERELY,

Wayne Corporation

December 10, 1976

Administrator National Highway Traffic Safety Administration

Subject: FMVSS 222, School Bus Seating and Crash Protection

The Wayne Corporation petitions NHTSA to either: Delete from FMVSS 222, Section S5(b), the requirements for and reference to 571.208, 571.209, and 571.210; or delete from FMVSS 222, all of Section S5(b) and revise Section S5(a) to include school buses with gross vehicle weight ratings of 10,000 pounds or less.

The reason for this petition is based on Wayne's contention that FMVSS 222 unfairly discriminates against a particular class of school bus vehicles and that it is unreasonable as it applies to school bus vehicles with GVWR's of 10,000 pounds or less; and if allowed to stand, will force the manufacturers to cease production and withdraw this class of vehicle from the market.

This petition requests that the requirement that seat belts be installed and the requirement for seat belts and seat belt anchorages as applied to school bus vehicles with GVWR's of 10,000 pounds or less be eliminated from FMVSS 222.

The subject of seat belts in school buses has been and continues to be a controversial one. Seat belt proponents, who are safety advocates, promise a reduction in injury severity and reduced fatalities in school bus accidents if seat belts are used. Seat belt opponents, who are primarily school bus operators, predict dire consequences if seat belts are mandated for school buses. Wayne believes that NHTSA has been exposed to the pros and cons of this discussion, therefore, it is unnecessary for purposes of this petition to delineate in detail the positions of both points of view. To say that school bus operators object to seat belts in school buses is a gross understatement of their position in the matter. As discussed in the preamble of Docket No. 73-3, Notice 05, the school bus operators even objected to the proposal that seat belt anchorages be installed in school buses for fear that this would encourage the installation of seat belts. Wayne maintains that all other things being equal, the school bus operator, given the choice between the bus equipped with seat belts and a bus without seat belts, will always purchase the bus that does not have seat belts.

Currently school buses in the 16 to 24 passenger capacity range with gross vehicle weight ratings under 10,000 pounds and just over 10,000 pounds (10,500 to 11,000 pounds) are being marketed. Typical of this situation is the Wayne Busette and the Carpenter Cadet. The Wayne Busette is manufactured by the Wayne Division of Richmond, Indiana, has a GVWR of less than 10,000 pounds, and will accommodate up to 20 seated passengers (see the enclosed Busette specification sheet). The Carpenter Cadet CV is manufactured by the Carpenter Body Works, Inc. of Mitchell, Indiana, has a GVWR of 10,500 pounds, and will accommodate up to 23 seated passengers (see enclosed copy of Cadet literature).

Both of these buses currently list for approximately $ 9,500. FMVSS 222, when it becomes effective, will require that both buses have seats which meet the same performance requirements, however, in addition, the Busette must have seat belts which comply with FMVSS 208, 209, and 210, installed at each passenger seating position. Wayne estimates that the increase in cost due to the seat belts alone will be in the $ 200 to $ 500 range.

FMVSS 222 discriminates against the small school bus with a GVWR of less than 10,000 pounds because seat belts are unacceptable to bus operators and alternate types of buses having the same functional characteristics are available without seat belts and the accompanying increased cost.

Wayne considers FMVSS 222 as it applies to school buses with GVWR's of 10,000 pounds or less to be unreasonable because the increase in weight attributable to the standard's requirement for seat belts will result in a total vehicle weight in excess of the GVWR of chassis available to body manufacturers and, therefore, will necessitate the removal of this type of vehicle from the market. The excess weight is attributable to the standard's requirement for seat belts in the Busette class of school bus as is shown in the following. Chassis Manufacturer's GVWR for Busette chassis 8,900 lbs. Total Busette weight including passengers pre-FMVSS 222 8,728 lbs. Increased weight due to the FMVSS 222 seat performance requirements without seat belts 104 lbs.

8,832 lbs. Increased weight due to FMVSS 222 require- ments for seat belts and their supporting systems 256 lbs. Total Busette Weight Post-FMVSS 222 9,088 lbs. Chassis GVWR 8,900 lbs. Vehicle Gross Weight Excess 188 lbs.

Since the Busette's introduction in 1974, the Wayne Division has produced and sold approximately 2,500 Busette vehicles, 2,400 of which have been school buses. Wayne has every reason to believe that the Busette school bus is a viable product in the market place as each year since its introduction, unit sales have increased at the rate of 10% to 15%. With the installation of seat belts as mandated by FMVSS 222, the gross vehicle weight will exceed the available chassis manufacturer's GVWR, therefore, Wayne will be forced to withdrawn the Busette school bus from the market. By taking the Busette off the market, the bus operator's choice of vehicles will be reduced forcing him to purchase vehicles which are more costly to operate. In addition, such action will reduce employment opportunities in Richmond, Indiana, and result in a financial hardship to the Wayne Division.

NHTSA's reason for requiring seat belts for small school buses is based on their contention that a more severe crash pulse is experienced by the smaller vehicles as compared with the larger vehicles under similar accident conditions. This may be a reasonable position for vehicles with a difference in GVWR of the magnitude of 10,000 to 15,000 pounds, however, as pointed out above, school buses just over the standard's 10,000 pound classification demarcation are available and this position cannot be justified for buses with a difference of 1,000 to 2,000 pounds GVWR.

In addition, NHTSA's position on seat belts seems to be inconsistent as illustrated in their reply to the Physicians for Automotive Safety request for seat belts in school buses. In Docket 73-3, Notice 05, NHTSA reiterates their position on seat belts, namely, "that a requirement for seat belts without the assurance of proper supervision of their use would not be an effective means of providing occupant protection." If seat belts will not provide an effective means of occupant protection in the big buses because of the absence of proper supervision, it logically follows that seat belts will also not provide an effective means of occupant protection in the small bus for the same reasons. Therefore, the requirement for seat belts should be altogether eliminated from the standard.

Robert B. Kurre Director of Engineering

CARPENTER Cadet "CV" '76

(Enclosure Omitted)

ID: 9759

Spectrum Engineering Group
1111 South Main Street
Cheshire, CT 06410

Dear Sir/Madam:

This responds to your letter to this office regarding your reconstruction of an accident involving a 16- passenger school bus. I apologize for the delay in responding.

You stated in your letter that the original latch/hinge mechanism of the right front entrance door of the bus in question was disabled by removal of the striker plate and equipped instead with a remote door opening/closing apparatus and latching mechanism. The bus was involved in an accident in which the driver was ejected through that door. You then asked a series of questions concerning the classification of the vehicle and the Federal safety standards pertaining to the door in question.

By way of background, the National Traffic and Motor Vehicle Safety Act, 15 U.S.C. 1381, et seq. (Safety Act), authorizes the National Highway Traffic Safety Administration (NHTSA) to issue Federal motor vehicle safety standards (FMVSS) applicable to new motor vehicles and new items of motor vehicle equipment. The Safety Act establishes a self-certification system in which manufacturers are responsible for certifying that the vehicle or equipment complies with all applicable FMVSSs in effect on the date of manufacture. Once the vehicle or equipment has been sold to the first customer for purposes other than resale, Federal jurisdiction over the manufacture and sale of the vehicle or equipment generally terminates and use of the vehicle or equipment becomes a matter of state jurisdiction.

You first asked, "Would this vehicle be classified as a multi-purpose passenger vehicle, a bus, or a school bus?"

The answer to your question is that each manufacturer classifies its vehicles in accordance with the definitions set

forth in the Safety Act and in NHTSA's regulations. The Safety Act defines a "school bus" as [A] passenger motor vehicle which is designed to carry more than 10 passengers in addition to the driver, and which the Secretary determines is likely to be significantly used for the purpose of transporting primary, preprimary, or secondary school students to or from such schools or events related to such schools. 15 U.S.C. 1391(14).

Our regulations define a "bus" as a motor vehicle designed to carry more than 10 persons, and further define a "school bus" as a bus that is sold for purposes that include carrying students to and from school and related activities, but does not include a bus sold for operation as a common carrier in urban transportation. 49 CFR '571.3.

Thus, whether a vehicle is a school bus under our regulations depends on the purpose for which it was originally sold. Although you did not indicate who purchased the bus originally and for what purpose, you referred to the vehicle in your letter as a "mini school bus," you stated that the body was manufactured by Mid Bus, a school bus manufacturer, and the descriptive literature you enclosed with your letter depicts different models of small school buses manufactured by Mid Bus. Accordingly, it appears the vehicle in question would have been classified as a school bus under 49 CFR '571.3. Our regulations require the vehicle manufacturer to state the vehicle type classification on the vehicle's certification label. The certification label of the vehicle in question should have that information.

Your second question asks, "Does FMVSS 206 and/or FMVSS 217 apply to the right front entrance door of this vehicle?"

With respect to FMVSS 206, Door locks and door retention components, the answer is no. Standard 206 applies only to passenger cars, multipurpose passenger vehicles, and trucks. The standard does not apply to buses.

With respect to FMVSS 217, Bus emergency exits and window retention and release, the standard specifies requirements for window retention other than windshields in buses, except buses designed to transport persons under restraint, and establishes operating forces, opening dimensions, and markings for emergency exits. The glazing requirements of S5.1 of FMVSS 217 would apply to the right front entrance door, and if the door was also used as an emergency exit, it must also have complied when new with the emergency exit requirements of S5.2.3, S5.3, S5.4.2, and S5.5.3 of the standard.

Your third question asked, "Which FMVSS would apply to the right front entrance door (particularly its loading requirements)?"

The answer is that apart from the provisions of FMVSS 217 discussed in our answer to your second question, there was no FMVSS in 1988 that specified performance standards for the right front entrance doors of buses. Effective September 1, 1993, however, the side door strength requirements of FMVSS 214, Side Impact Protection, will apply to 90 percent of the buses with a gross vehicle weight rating (GVWR) of 10,000 pounds or less produced after that date, and all buses with a GVWR of 10,000 pounds or less produced on and after September 1, 1994, must comply with those requirements.

I would like to make the following observation about the modification of the door in question. Modifications of new and used vehicles by commercial parties are subject to '108(a)(2)(A) of the Safety Act (15 U.S.C. 1397(a)(2)(A)). That section prohibits any manufacturer, distributor, dealer, or vehicle repair business from knowingly rendering inoperative any device or element of design installed on or in a vehicle in compliance with a Federal motor vehicle safety standard. In this case, your letter did not indicate who disabled the original latch mechanism on the vehicle or who installed the remote door latch mechanism. If the work was done by a party listed in '108(a)(2)(A), the person modifying the vehicle was responsible for not degrading the performance of the door with regard to FMVSS 217.

Section 108(a)(2)(A) does not apply to individual vehicle owners. Thus, vehicle owners can modify the vehicle in any manner he/she chooses without violating any Federal requirements.

I hope this information answers your questions. We have enclosed copies of FMVSS 206 and 217 that were effective in 1988, photocopied from the October 1, 1987 edition of the Code of Federal Regulations, as you requested. Should you have other questions, please feel free to contact Walter Myers of my staff at this address or at (202) 366-2992.

Sincerely,

John Womack Acting Chief Counsel

Enclosures ref:206#217 d:6/28/94

ID: nht94-3.46

TYPE: INTERPRETATION-NHTSA

DATE: June 28, 1994

FROM: John Womack -- Acting Chief Counsel, NHTSA

TO: Spectrum Engineering Group

TITLE: NONE

ATTACHMT: Attached to letter dated 2/22/94 from Robin L. Fennimore to NHTSA Office of Chief Council (OCC-9759)

TEXT: This responds to your letter to this office regarding your reconstruction of an accident involving a 16-passenger school bus. I apologize for the delay in responding.

You stated in your letter that the original latch/hinge mechanism of the right front entrance door of the bus in question was disabled by removal of the striker plate and equipped instead with a remote door opening/closing appartus and latching mechanism . The bus was involved in an accident in which the driver was ejected through that door. You then asked a series of questions concerning the classification of the vehicle and the Federal safety standards pertaining to the door in question.

By way of background, the National Traffic and Motor Vehicle Safety Act, 15 U.S.C. 1381, et seq. (Safety Act), authorizes the National Highway Traffic Safety Administration (NHTSA) to issue Federal motor vehicle safety standards (FMVSS) applicable to ne w motor vehicles and new items of motor vehicle equipment. The Safety Act establishes a self-certification system in which manufacturers are responsible for certifying that the vehicle or equipment complies with all applicable FMVSSs in effect on the da te of manufacture. Once the vehicle or equipment has been sold to the first customer for purposes other than resale, Federal jurisdiction over the manufacture and sale of the vehicle or equipment generally terminates and use of the vehicle or equipment becomes a matter of state jurisdiction.

You first asked, "Would this vehicle be classified as a multipurpose passenger vehicle, a bus, or a school bus?"

The answer to your question is that each manufacturer classifies its vehicles in accordance with the definitions set

2

forth in the Safety Act and in NHTSA's regulations. The Safety Act defines a "school bus" as

[A] passenger motor vehicle which is designed to carry more than 10 passengers in addition to the driver, and which the Secretary determines is likely to be significantly used for the purpose of transporting primary, preprimary, or secondary school stude nts to or from such schools or events related to such schools. 15 U.S.C. 1391(14).

Our regulations define a "bus" as a motor vehicle designed to carry more than 10 persons, and further define a "school bus" as a bus that is sold for purposes that include carrying students to and from school and related activities, but does not include a bus sold for operation as a common carrier in urban transportation. 49 CFR @ 571.3.

Thus, whether a vehicle is a school bus under our regulations depends on the purpose for which it was originally sold. Although you did not indicate who purchased the bus originally and for what purpose, you referred to the vehicle in your letter as a " mini school bus," you stated that the body was manufactured by Mid Bus, a school bus manufacturer, and the descriptive literature you enclosed with your letter depicts different models of small school buses manufactured by Mid Bus. Accordingly, it appea rs the vehicle in question would have been classified as a school bus under 49 CFR @ 571.3. Our regulations require the vehicle manufacturer to state the vehicle type classification on the vehicle's certification label. The certification label of the v ehicle in question should have that information.

Your second question asks, "Does FMVSS 206 and/or FMVSS 217 apply to the right front entrance door of this vehicle?"

With respect to FMVSS 206, Door locks and door retention components, the answer is no. Standard 206 applies only to passenger cars, multipurpose passenger vehicles, and trucks. The standard does not apply to buses.

With respect to FMVSS 217, Bus emergency exits and window retention and release, the standard specifies requirements for window retention other than windshields in buses, except buses designed to transport persons under restraint, and establishes operati ng forces, opening dimensions, and markings for emergency exits. The glazing requirements of S5.1 of FMVSS 217 would apply to the right front entrance door, and if the door was also used as an emergency exit, it must also have complied when new with the emergency exit requirements of S5.2.3, S5.3, S5.4.2, and S5.5.3 of the standard.

3

Your third question asked, "Which FMVSS would apply to the right front entrance door (particularly its loading requirements)?"

The answer is that apart from the provisions of FMVSS 217 discussed in our answer to your second question, there was no FMVSS in 1988 that specified performance standards for the right front entrance doors of buses. Effective September 1, 1993, however, the side door strength requirements of FMVSS 214, Side Impact Protection, will apply to 90 percent of the buses with a gross vehicle weight rating (GVWR) of 10,000 pounds or less produced after that date, and all buses with a GVWR of 10,000 pounds or le ss produced on and after September 1, 1994, must comply with those requirements.

I would like to make the following observation about the modification of the door in question. Modifications of new and used vehicles by commercial parties are subject to @ 108(a)(2)(A) of the Safety Act (15 U.S.C. 1397(a)(2)(A)). That section prohibit s any manufacturer, distributor, dealer, or vehicle repair business from knowingly rendering inoperative any device or element of design installed on or in a vehicle in compliance with a Federal motor vehicle safety standard. In this case, your letter d id not indicate who disabled the original latch mechanism on the vehicle or who installed the remote door latch mechanism. If the work was done by a party listed in @ 108(a)(2)(A), the person modifying the vehicle was responsible for not degrading the p erformance of the door with regard to FMVSS 217.

Section 108(a)(2)(A) does not apply to individual vehicle owners. Thus, vehicle owners can modify the vehicle in any manner he/she chooses without violating any Federal requirements.

I hope this information answers your questions. We have enclosed copies of FMVSS 206 and 217 that were effective in 1988, photocopied from the October 1, 1987 edition of the Code of Federal Regulations, as you requested. Should you have other questions , please feel free to contact Walter Myers of my staff at this address or at (202) 366-2992.

Enclosures

ID: FERBLTR.CRS

Gabriel J. Ferber, Esquire
Nesper, Ferber & DiGiacomo, LLP
501 James Audubon Drive, Suite 300
Amherst, NY 14228

Re: Superior Auto Sales, Inc.

NSA-32 RSH; RII-10/R93-017

Dear Mr. Ferber:

This is in response to your letter of August 27, 1996, to Marilynne E. Jacobs, Director of the National Highway Traffic Safety Administration's (NHTSA's) Office of Vehicle Safety Compliance (OVSC), regarding 117 vehicles that were imported from Canada by your client, Superior Auto Sales, Inc. (Superior). As described in your letter, and in prior correspondence with OVSC, these vehicles, which consisted of 1994 and 1995 Model Year Plymouth Acclaims, Dodge Spirits, and Mazda Protégés, were not equipped with automatic restraints in the front outboard passenger seating position, as required by Federal Motor Vehicle Safety Standard (FMVSS) No. 208, Occupant Crash Protection. You nevertheless contend that all of these vehicles should be deemed in compliance with that standard, with the exception of seven Mazda Protégés that are the subject of separate correspondence.

To support this contention you cite paragraph S4.1.4.1 of the standard, which provides, in relevant part:

A vehicle shall not be deemed to be in non-compliance with this standard if its manufacturer establishes that it did not know in the exercise of due care that such vehicle is not in conformity with this standard.

Your letter contends that Superior is a manufacturer within the meaning of this provision by virtue of the fact that it is a vehicle importer. Moreover, you claim that even though Superior exercised due care, it did not know that the vehicles in question did not comply with FMVSS No. 208. In support of this claim, you note that OVSC released the vehicles in question even though the conformity packages that Superior submitted for them included a vehicle identification number (VIN) deciphering chart that provided the means for the agency to ascertain that each of those vehicles was equipped with a driver side air bag and a passenger side manual seat belt.

To further support your claim that Superior did not have knowledge of the noncompliance in issue, you describe the standard as containing language "so obtuse (sic) as to defy understanding." You characterize "the complexity of the language" found in FMVSS No. 208 as "the very reason that NHTSA incorporated the 'due care' provisions of the Safety Act into the regulation." To support this contention, you cite language from the preamble of a notice of proposed rulemaking to amend the standard that was issued by NHTSA in 1985. That language states

The agency recognizes that because of the complexity of the requirements of Standard No. 208, manufacturers are concerned that the rule state that the due care provision of the National Traffic and Motor Vehicle Safety Act . . . applies to compliance with [this] standard.

50 FR 14589, 14592 (April 12, 1985). You interpret this statement as representing NHTSA's "recogni[tion] at the outset that the language of Standard 208 was so complex that mistakes in interpretation were likely to occur" and that "it would be unfair to penalize affected parties who made such mistakes notwithstanding due care." Accordingly, you assert that the vehicles that Superior "imported in the exercise of due care and without knowledge of their nonconformity must . . . be deemed to be in compliance with Standard 208."

Contrary to your interpretation, NHTSA did not incorporate the due care provision of the Safety Act into FMVSS No. 208 to relieve manufacturers from liability for noncompliances resulting from mistaken interpretations of the standard's language. The agency instead added the due care provision to address a concern expressed by manufacturers, grounded on the belief (disputed by NHTSA) that there was excessive variability in FMVSS No. 208 crash test results, that a noncompliance might be determined to exist on the basis of a single test failure, even though the vast majority of similar vehicles actually complied. NHTSA stated its intention to amend the standard to incorporate the due care provision in the final rule reinstituting the automatic restraint requirements published at 49 FR 28962 on July 17, 1984. As reflected in the enclosed excerpt from that document (at 49 FR 29006), NHTSA was motivated to add the due care language to assure manufacturers

that the agency would exercise appropriate discretion in compliance cases based on apparent failures to satisfy the performance requirements of the standard in OVSC crash tests.

We agree that Superior is a "manufacturer" within the meaning of 49 U.S.C. 30102(a)(5) because it imports motor vehicles for resale. However, the due care language in FMVSS No. 208 cannot be relied upon by registered importers (RIs) to insulate themselves from liability for importing vehicles from Canada that do not comply with the standard. To properly exercise its responsibilities, an RI must be aware of the standards that apply to each of the vehicles that it imports and conform the vehicle to those standards when necessary. The principal difference between vehicles manufactured for the U.S. and the Canadian markets is that Canadian vehicles are not required to comply with the automatic restraint requirements of FMVSS No. 208. For that reason, the only passenger cars manufactured for the Canadian market that NHTSA has determined to be eligible for importation into the United States are those manufactured before September 1, 1989, the date on which the automatic restraint requirements were extended to a manufacturer's entire passenger car production, or those manufactured after that date that are equipped with an automatic restraint system that complies with FMVSS No. 208. Before importing a vehicle from Canada manufactured on or after September 1, 1989, the RI must therefore ensure that it complies with the automatic restraint requirements in the same manner as FMVSS No. 208 allows for vehicles produced for the U.S. market on the vehicle's date of manufacture.

As a factual matter, we dispute your assertion that the operative language of FMVSS No. 208 is "complex" or "obtuse." It is clear from S4.1.4.1 of FMVSS No. 208 that the authority to manufacture vehicles with a driver's side air bag and no automatic protection on the passenger side expired as of September 1, 1993 (i.e., it did not apply to model year 1994 or newer vehicles). Even if it could not discern those requirements from the language of the standard, Superior could have made appropriate inquiry with the vehicle's manufacturer or with NHTSA. Finally, if an RI is in fact confused as to the automatic restraint requirements that pertain to any given vehicle, it could not demonstrate that it exercised due care by importing the vehicle despite that confusion.

Your letter implies that Superior was misled by OVSC's "approval" of compliance packages that it submitted for vehicles that were not equipped with required passenger side automatic restraints. The conformity statements included in those packages contained Superior's certification that those vehicles were manufactured in compliance with FMVSS No. 208. OVSC's approval of the compliance packages was predicated on that certification by Superior. OVSC cannot be charged with knowledge that the vehicles it approved for release were not equipped with required automatic restraints simply because a VIN deciphering chart that would have revealed that information was included in the compliance packages. Given the thousands of compliance packages that it must process each month, OVSC cannot be expected to decipher every VIN to ensure that the RI's certification contains no inaccuracies. It is perverse to assert that merely because OVSC did not catch Superior's false statements, Superior is excused from having made them. Moreover, in each case, Superior's false certification preceded OVSC's release of the vehicle, so that release cannot have provided any basis for Superior's actions.

Your letter further cites NHTSA and Center for Auto Safety research reports for the proposition that automatic seat belts, the devices that Superior apparently would install in the vehicles in question in the event of a recall, are less safe than the manual seat belts with which those vehicles are now equipped. In light of these reports, you contend that it would be arbitrary, capricious, and an abuse of discretion for NHTSA to order a recall. On the contrary, it would be improper for the agency not to require compliance with the existing requirements of a standard in its administration of the vehicle importation program. FMVSS No. 208 requires that passenger cars manufactured on or after September 1, 1993 be equipped with passenger side automatic restraints regardless of whether they have a driver's side air bag. This requirement was adopted in a protracted rulemaking proceeding in which the agency solicited and addressed numerous comments from the public. The requirement for automatic restraints in both front outboard seating positions is buttressed by the action of Congress in enacting the Intermodal Surface Transportation Efficiency Act of 1991, section 2508(a)(1), which mandated that FMVSS No. 208 be amended to require air bags in those locations. (See 49 U.S.C. 30127.)

Your letter requests a hearing if NHTSA believes that Superior has not established that in the exercise of due care it did not have reason to know that the vehicles it imported were not in conformity with FMVSS No. 208. We have provided you with our analysis of this issue, as presented in your letter. Based on that analysis, it is unlikely that any further discussion would alter our opinion that the due care defense is unavailable to Superior and similarly situated RIs in this circumstance. Therefore, we decline to hold the hearing you have requested.

If you have any further questions regarding this matter, please contact Coleman Sachs of my staff at 202-366-5238.

Sincerely,

John Womack

Acting Chief Counsel

Enclosure

ref:208

d:10/25/96

ID: 571.226--Pre-breaking glazing--Parker--17-001042

ID: nht93-6.39

DATE: September 20, 1993

FROM: Lawrence F. Henneberger -- Arent Fox Kintner Plotkin & Kahn

TO: John G. Womack -- Acting Chief Counsel, NHTSA

TITLE: Request for Interpretation

ATTACHMT: Attached to letter dated 1/25/94 from John Womack to Lawrence Henneberger (A42; Std. 105)

TEXT:

I am submitting this request for interpretation on behalf of my client, MICO, Incorporated (MICO), located in North Mankato, Minnesota, concerning the use of a brake lock supplementing the original equipment mechanical parking brake on a motor vehicle which in our opinion, (1) is not precluded by Federal Motor Vehicle Safety Standard (FMVSS) 105, and (2) does not otherwise impair braking operations in compliance with FMVSS 105. (1)

MICO believes that its brake lock will not cause noncompliance with or impairment of compliance with FMVSS 105 since: (a) the MICO brake lock is the type of auxiliary parking brake device which has consistently been determined by NHTSA not to raise compliance problems with respect to FMVSS 105; (b) based upon test results and in-service use of over 30 years, these brake locks have not had any adverse effect upon the hydraulic service brakes of the vehicle involved; (c) there have been no confirmed accidents attributable to the use of the brake locks for the 30 year period; and (d) the brake locks are installed after the vehicle manufacturer has certified the brake system of the vehicle with the requirements of FMVSS 105.

MICO recognizes that NHTSA does not give approvals of vehicles or equipment, and emphasizes that the Company is not here seeking any such approval. Rather MICO requests from the agency an interpretation that FMVSS 105 does not preclude the installation of a MICO hydraulic brake lock as a supplement to the systems installed to comply with the FMVSS 105 requirements.

BACKGROUND

MICO manufactures a hydraulic brake lock which supplements the mechanical parking brake of a motor vehicle by providing supplemental holding capacity for the vehicle. The brake lock is installed by a body builder or owner of a vehicle after the manufacturer of the vehicle has certified its compliance with applicable safety standards. The brake lock consists of a one-way check valve which, when it is in the release position, does not in any way impede or interfere with the use and application of the hydraulic service brakes on the vehicle. The brake lock is installed in the hydraulic brake lines between the master brake cylinder and the foundation brakes.

The brake lock does not render inoperative any device or element of the hydraulic service or parking brakes as originally installed on the motor vehicle but serves only to supplement the existing parking brake in a positive manner. The brake lock is not to be applied during normal driving operations but is only activated after the vehicle has been brought to a stop, the mechanical parking brake applied, and the brake lock armed. When the operator steps on the hydraulic service brake pedal and produces pressure in the brake system, the brake lock is activated. When activated, the brake lock acts as a

one-way check valve which will allow hydraulic system fluid to pass from the master cylinder to the foundation brakes as the brake pedal is applied, but will not allow the brake fluid to travel back to the master cylinder as the operator removes his foot from the brake pedal. (2) When the brake lock is not activated, brake fluid passes freely in both directions of the braking system. The brake lock does not increase brake pressure. It merely locks in pressure generated by applying pressure to the brake pedal when the vehicle is not in motion.

REGULATORY APPLICATION

In the case of a hydraulic brake lock, there is no safety standard which applies to it as a separate item of motor vehicle equipment. Previous interpretations of NHTSA have indicated that installation of a hydraulic brake lock does not affect compliance with FMVSS 105. See July 10, 1985 Letter of Interpretation from NHTSA Chief Counsel Jeffrey R. Miller to Mr. Bernard Cantleberry.

This position "is consistent with the agency's long-standing view about the (non-preclusive) use of auxiliary parking brake systems." See, e.g., May 6, 1993 Letter of Interpretation from Acting Chief Counsel John Womack to Mr. Bob Brinton (attaching a December 9, 1976 Interpretation from then Acting Chief Counsel Frank H. Berndt to Mr. Leon W. Steenbock); August 5, 1993 Letter of Interpretation from Acting Chief Counsel John Womack to Mr. Richard Muraski.

MICO submits that, in view of the fact that its brake lock demonstrably does not affect the operation of a vehicle's hydraulic brake system and, as long term usage has shown, has had no adverse effect upon the vehicle's hydraulic brake system, the vehicle will not be rendered noncompliant with FMVSS 105 upon the installation of the MICO brake lock.

TEST RESULTS

MICO has performed systematic and continuous testing of its hydraulic brake lock product to determine its effect on the performance of vehicles. MICO has conducted tests on the product in its own facilities under a number of different vehicle applications since the product was introduced in approximately 1960. The results of these tests show that the MICO brake lock does not adversely affect the continued satisfactory and compliant operation of the hydraulic brake system with FMVSS 105.

In addition, MICO also commissioned Bendix Corporation to conduct repetitive cycle tests of the product on a vehicle chassis in 1976, and these test results indicated that the brake lock is not detrimental to the continued satisfactory operation of the brake system. A copy of the May 1976 Bendix test evaluation is attached hereto as Appendix 2.

Several fleets have used and monitored the operation of these brake locks over substantial periods of time. MICO brake locks have operated for these fleets on a trouble-free basis on vehicles which travel between 25,000 to 40,000 miles per year. See, Report on Use of MICO Brake Locks, supra, at 3-4 and attached surveys. The locks have not caused any brake failure of any brake system component and there have been no accidents attributable to the use of the MICO brake lock. The results of this in-service experience have confirmed that the

MICO brake locks do not adversely affect the performance of the original hydraulic service brakes and associated parking brake systems in normal operation with the MICO brake lock released.

Based upon the test and usage data, MICO believes that the addition of the brake lock to a motor vehicle will not affect the vehicle's compliance with FMVSS 105.

CONCLUSION

For the reasons set forth above, MICO, Inc. respectfully requests an interpretation confirming its view that the addition of a MICO brake lock to a motor vehicle is not precluded by FMVSS 105, and does not impair braking performance in compliance with FMVSS 105.

We appreciate your consideration of our request for interpretation and encourage you to contact the undersigned should questions remain.

1 Copies of MICO's brake lock product catalogs, including materials relating to its newest product, the MICO 690 Series, were provided to representatives of your staff and the Crash Avoidance Division on August 17, 1993.

2 For a detailed discussion of the description, application and usage of MICO brake lock products, see Report on Use of MICO Brake Locks by Messrs. Hall and Vogel (June 29, 1993), attached hereto as Appendix 1.

ID: nht90-1.17

TYPE: INTERPRETATION-NHTSA

DATE: JANUARY 16, 1990

FROM: SATOSHI NISHIBORI -- VICE PRESIDENT, INDUSTRY-GOVERNMENT AFFAIRS

TO: ROBERT F. HELLMUTH -- DIRECTOR, OFFICE OF VEHICLE SAFETY COMPLIANCE, NHTSA

TITLE: NEF-31 GEN/NCI 3092

ATTACHMT: ATTACHED TO LETTER DATED 3-15-90 TO SATOSHI NISHIBORI FROM STEPHEN P. WOOD; [A35 REDBOOK; STD. 120]

TEXT: This responds to your October 31, 1989, letter regarding the compliance of 1989 Nissan pickup trucks with FMVSS 120. In my December 19th letter to you, I confirmed an extension until January 16, 1990, to respond to your request.

Nissan's responses to your questions regarding the 1989 Nissan truck are set forth in the Attachment. We wish to emphasize, however, that, based on our reading of FMVSS 120, it is not clear that the vehicles in question fail to comply with that stand ard. Nissan has followed a procedure whereby tire inflation pressures specified on FMVSS 120 tire/rim information labels are determined based on the tire's ability to support their share of the vehicle's gross axle weight rating (GAWR). The load carryi ng capacity of the tires at various pressures is determined by reference to data in tire industry standarization manuals; such as the Tire and Rim Association (TRA) Yearbook. Once a minimum pressure that is adequate to carry the GAWR is determined, Nissa n considers other factors, such as vehicle ride characteristics, to select the recommended pressure. This process results in the selection of a recommended pressure that will permit the tires to carry safely GAWR loads and will provide good vehicle ride characteristics. Nissan believes that the procedure it followed resulted in the recommendation of a tire pressure that is consistent with safe vehicle operation and is permitted under FMVSS 120.

Based on our reading of the Agency contractor's test report on this matter, it appears that the contractor has interpreted FMVSS 120 in a manner different from Nissan. However, we believe that our own reading of FMVSS 120 is consistent with the langu age used in that standard. In particular, based on our reading, we conclude that:

1. the tire label need not show the tire's maximum inflation pressure; and

2. the 1.1 adjustment factor in section 5.1.2 of the standard applies for tire selection purposes only. Nothing in FMVSS 120 requires that the relationships between tire inflation pressure and load, as specified by tire manufacturers in standardizat ion manuals or otherwise, must be universally adjusted by use of this factor. We read FMVSS 120 to require, in practical terms, that when a passenger car tire is to be used on a truck, a slightly larger capacity tire must be selected than would be the c ase if the tire were to be used on a similar size passenger car. Based on Agency statements in Federal Register notices regarding FMVSS 120, the standard apparently requires this difference in tire selection due to the greater potential for off-road use and heavy load operation (perhaps above the vehicle's rated load capacity) for trucks than for passenger cars, and not due to any inherent difference in load-pressure relationships for the vehicles.

It is our understanding that the Agency's test report concludes that the 1989 Nissan truck that was inspected by the Agency's contractor does not conform to S.5.3.5 of FMVSS 120. Section 5.3.5 specifies that the vehicle's tire/rim selection label mus t show the "cold inflation pressure for [the] tires". This provision does not specify how the "cold inflation pressure" is to be determined, or for which driving conditions the pressure must be appropriate. FMVSS 120, as originally proposed, specified t hat the label must show the "maximum cold inflation pressures of the tires with which the vehicle is equipped, as marked on the tires. . ." See 36 Federal Register 14273-4, August 3, 1971, emphasis added. In a subsequent proposal, the requirement was re vised to specify that the label must show the "maximum tire inflation pressure", deleting the reference to the tires actually on the vehicle at the time of sale. See 39 Federal Register 19505, 19507, June 3, 1974. This revision was made to recognize and continue to permit the practice of dealers changing tire sizes prior to delivery of trucks to the purchaser. 39 Federal Register 19505. The final rule establishing FMVSS 120 adopts the current language of

section 5.3.5 (as paragraph 5.3(c)), i.e., "cold inflation pressure", but the preamble does not explain the deletion of the term "maximum" with regard to the inflation pressure. See 41 Federal Register 3480, January 23 1976. Nevertheless, the change in wording suggests that the tire label must reflect some pressure other than the maximum pressure.

We believe that the context of section 5.3.5 may provide some additional guidance as to which pressure must appear on the label. Section 5.3.1 specifies that the information required under section 5.3.3 through 5.3.5 must appear either "after each GA WR" in the case of a certification label or must be "appropriate for each GVWR-GAWR combination", if a combined certification/120 label format is used. Thus, the "cold inflation pressure" selected should be consistent with the GAWR of the vehicle. This conclusion is supported by a subsequent NHTSA preamble, which states that the section 5.3.5 pressure need not be the maximum pressure, "but, the pressure specified by the tire manufacturer as sufficient to carry the load specified by the vehicle manufac turer as the tire's share of the assigned GAWR". 42 Federal Register 7143, February 7, 1977.

The 1989 Nissan truck inspected by the Agency is equipped with Firestone WR-12, P 195/75R14 M+S tires. The tires have a maximum load rating of 1400 pounds. The certification label on the vehicle specifies a cold inflation pressure of 34 psi for the rear tires and a GAWR of 2544 pounds for the rear axle. The key issue raised by NHTSA is whether the 34 psi pressure on the label is a pressure "specified by the tire manufacturer as sufficient to carry" half the GAWR, or 1272 pounds.

The regulations do not specify a procedure by which the tire manufacturer must articulate whether the tire, inflated to 34 psi, will support a 1272 pound load. For example, we believe this information could be obtained from tire industry standardizat ion manuals or from direct discussions between the vehicle and tire manufacturers.

Data in the 1989 Tire and Rim Association (TRA) yearbook show that the tires in question will support a load of 1279 pounds at 29 psi, with higher loads supportable at higher pressures. Therefore, the 1989 Nissan truck would appear to comply with sec tion 5.3.5. Moreover, the manufacturer of the tires used as original equipment on the vehicle has confirmed that the tires inflated to 34 psi, will carry 1383 pounds (which is more than half the GAWR) on this vehicle (see Enclosure 1).

However, NHTSA has apparently interpreted the required calculation procedure differently. As we understand the procedure used by NHTSA's contractor in its test report, it first calculated a "tire load limit" at 34 psi by interpolating between the loa d limits at 32 psi and at 35 psi, as specified in the TRA tables. Assuming that a linear interpolation is appropriate, the 34 psi maximum load would be 1381.67 pounds. NHTSA's contractor then proceeds to divide the interpolated load by 1.1, yielding 125 6.06 pounds. Since this figure is less than the tire's share of the GAWR (1272 pounds), the contractor concludes that a violation has occurred. Assuming that linear interpolation between the table values is appropriate and the contractor's procedure is correct, a pressure of 34.956 pounds would be required to support 1272 pounds.

We believe that the procedure followed by the contractor is not specified in FMVSS 120. In particular, we object to the contractor's application of the 1.1 adjustment factor to intermediate tire loads and for purposes other than tire selection, since the standard does not specify these procedures.

The use of a 1.1 factor is specified in section 5.1.2 of the standard for tire selection purposes. That section provides that the sum of the load ratings of the tires fitted to an axle must be not less than the GAWR. Prior to calculating the sum, th e tire's load rating shall be reduced by dividing by 1.1 if the tire is listed in Appendix A of Standard 109 and is installed on a truck, bus, MPV, or trailer. However, no specific tires are listed in Appendix A of Standard 109. It is our understanding that prior to the early 1980s, that Appendix did list certain tire sizes for use on passenger cars. Therefore, section 5.1.2 may suggest that when passenger tires are used on trucks, the tire's load rating must be reduced by the 1.1 factor prior to det ermining whether the tires are adequate to support the GAWR. According to the 1977 preamble, the purpose of applying the 1.1 factor is "to account for the generally harsher treatment (impulse and surge loading in the case of MPV's off-road) to which the tires of a vehicle other than a passenger car are exposed that is not accounted for in passenger car tire rating". Supra. Thus, it appears that the purpose for the 1.1 factor is not to deal with a difference in the ability of a tire to support a given load at a particular pressure when the tire is used on a car as compared to use on a truck. Rather, the stated intent seems to be to deal with the greater off-road use (or possibly more frequent overload situations) to which vehicles other than passeng er cars are subjected. n1

n1 It is important to note that the 1989 Nissan truck meets the tire selection criteria of section 5.1.2. If the tires' maximum load rating (1400#) is divided by 1.1, and the adjusted sum (2545#) of the two tires' load ratings exceeds the GAWR (2544# ).

The use of the 1.1 factor for tire selection purposes only is also suggested by the language of section 5.3.3. That provision references section 5.1.2 (and, thereby, the 1.1 factor) in determining whether the tire size is appropriate for the GAWR. H owever, the absence of the parenthetical reference to section 5.1.2 in section 5.3.5 suggests that the application of the 1.1 factor is not required for determining whether the tire pressure on the label is appropriate for the GAWR.

To summarize, the language used in FMVSS 120 to describe the process to be used in determining the cold inflation pressure under section 5.3.5 is ambiguous at best, and contrary to the procedure used by NHTSA's contractor at worst. These deficiencies are exhibited with regard to the following determinations:

1. Whether the 1.1 adjustment factor is to be used for purposes other than tire selection;

2. Which tires are subject to the 1.1 factor (Appendix A, standard 109);

3. The source of information on the tire manufacturer's load limit for the tire, at various pressures; and

4. The procedure for interpolating information derived from the TRA tables.

Of these factors, we believe the first to be the most significant, but all contribute to the ambiguity of the standard.

It is our understanding that at least one other vehicle manufacturer has interpreted section 5.3.5 in a manner inconsistent with NHTSA's contractor. This suggests that a problem may exist with the wording of the standard and that more is involved than a single party's misreading of clear regulatory language. If the contractor's interpretation were the only acceptable interpretation, approximately 700,000 Nissan vehicles produced as far back as 1983 could be implicated (see Attachment).

Response 5 in the Attachment lists additional vehicle/tire combinations where Nissan's specified tire pressure differs from that determined under the contractor's procedure. Nissan is now conducting additional tests to verify that these tires will su pport higher test loads. We expect that the results of this testing will demonstrate that the tires used on Nissan's vehicles have

sufficient load capacity to support their share of the vehicles' GAWR at the recommended inflation pressures. The procedure being followed involves testing the tires to FMVSS 109 procedures, but increasing test loads by multiplying them by an overload f actor. The overload factor is calculated by multiplying the GAWR by 0.5 and dividing the product obtained by the tires' load rating at the pressure shown on the vehicle's tire label (calculated according to NHTSA's contractor's procedure, i.e., using th e 1.1 factor).

The results of this testing should be available by January 31st. However, one of the affected tires (7.00 x 14) is no longer in production; therefore, a special batch of those tires is being produced. The test results for this one tire size should b e available by mid-February.

Nissan wishes to work cooperatively with NHTSA to resolve this matter. However, we believe that the language of section 5.3.5 does not clearly provide a basis for finding the 1989 Nissan truck to be in noncompliance, or for conducting a notification a nd remedy campaign under the the Safety Act.

We request that NHTSA consider the issues raised above and the results of our ongoing testing, and that the Agency concur that the Nissan vehicles comply with FMVSS 120. We request the opportunity to meet with you after you have considered the matter s raised in this letter, so that we can answer any questions you may have and discuss a resolution of the matter.

If you have any questions regarding this matter, please contact Mr. Kazuo Iwasaki of my staff, at 202/466-5284.

Sincerely,

ENC.