Walter J. Lewis, Senior Compliance Engineer
Porsche Cars North America, Inc.
980 Hammond Drive
Atlanta, GA 30328

Dear Mr. Lewis:

This responds to your request for an interpretation of the requirements for heating/air conditioning controls specified in Federal Motor Vehicle Safety Standard No. 101, Controls and Displays. In particular, you asked whether, for a proposed system you are considering, the design concept for identifying the temperature control, fan speed control, windshield defroster, rear window defroster, and the air conditioning/heating system would meet Standard No. 101's requirement that identification of controls be "on or adjacent" to the control. Our response is provided below.

Because your system is still undergoing development, certain specifics about how some controls are to be actuated or adjusted and identified are apparently not available. However, we believe we have sufficient information about your system, including its basic concept, to respond to your question. The following represents our understanding of how your proposed system would function, based in part on a June 18, 2001, meeting between National Highway Traffic Safety Administration officials, and Mr. Stephan Schlaefli, Porsche's General Manager for Compliance, and Mr. Dale Kardos, a Porsche consultant.

Porsche's Proposed Design for Its Control and Display System

With your letter, we were provided three additional pages: a computer-generated depiction of a passenger car interior with the proposed system, and two other pages that depict images of identification of controls as they would appear on a video display screen. ⁽¹⁾ The computer-generated image shows on the front dash a small video display screen. On a center console between the driver's seat and the front passenger seat are several buttons and a "combination multi-function switch/rotary dial." This latter device includes a dial which can be rotated and what might be called four toggle switches around the dial (or a joystick that can be moved to four positions). The buttons and combination multi-function switch/rotary dial are the controls for temperature, fan speed, the windshield defroster, the rear window defroster, heating and air conditioning, and other functions such as the radio and navigational guide.

A. Buttons Used with Video Display Screen

The buttons consist of the following, from left to right:

• A single button labeled "C," which stands for "cancel."
• A temperature control button, below which is a fan control button
• A windshield defroster control button, below which is a rear window defroster control button

Apparently, by pressing "C," one can cancel the most recently actuated function. Except for "C," each button is labeled with the ISO symbol for the respective function. Pressing the respective button turns on each function. To adjust the respective function, (i.e., increase or decrease fan speed, or raise or lower the temperature), one uses the dial that is part of the combination multi-function switch/rotary dial (located under the various buttons). This dial must be used in conjunction with the video display screen.

For example, to actuate the fan speed control, one presses the fan speed button (on the console between the driver and front passenger seats). On the video display (on the front dash) appears a circle that depicts the dial, with the fan symbol in the middle. Curved arrows within the circle point to the right and left. On another part of the video display appears the fan symbol next to six vertical bars that increase in height from short to long. Turning the dial makes the fan speed faster or slower. The fan speed is indicated by the number of illuminated bars. The faster the fan spins, the more bars are illuminated. By turning the dial to the right or left, one sees the number of bars either illuminating or darkening, until all bars are either illuminated or dark.

B. Primary Functions for the Combination Multi-Function Switch/Rotary Dial

If the dial were compared to the face of a clock, at the 12, 3, 6 and 9 o'clock positions of the dial are what appear to be toggle switches (or a joystick) that can be adjusted at each position. Only one position at a time can be selected.

• The 12 o'clock position is labeled "A/C," for air conditioning,
• The 3 o'clock position is labeled "SET," which stands for an unspecified function or functions (which apparently do not include controls specified in Table One of Standard No. 101),
• The 6 o'clock position is labeled "Radio" and
• The 9 o'clock position is labeled "BC" which is an abbreviation for the on-board computer that provides information such as fuel consumption, and oil temperature.

We assume the dial can be rotated indefinitely.

C. Multiple Uses for the Combination Multi-Function Switch/Rotary Dial

Although the four dial positions are labeled as described above, they in fact can be used for multiple functions that must be actuated in conjunction with the video display screen on the front dash. Not all of the functions that are available by use of the toggle switches and dials were described.

To give an example, to actuate the air conditioning system, one pushes the toggle switch at the 12 o'clock position (labeled "A/C") of the dial. One knows the air conditioning function is actuated because a new screen appears (on the video display screen), in the corner of which the term "AC" is highlighted. On the new screen appears a circle in the middle of which is the ISO symbol for temperature (a depiction of a thermometer) with the term " C." The circle represents the dial. We assume that the air conditioning can be turned up or down by turning the dial.

Contrary to what is actually labeled on the center console dial, the video display screen shows four entirely different functions for the air conditioning control. On the video display screen, the 12 o'clock position is labeled with the ISO symbol for air conditioning (a snowflake), the 3 o'clock position is labeled with the ISO symbol for air vent direction (three arrows pointing towards a passenger seat), the 6 o'clock position is labeled "Auto" (which apparently stands for a default position that one can set) and the 9 o'clock position is depicted with a symbol which we assume stands for air circulation (three curved arrows forming a circle).

If one wants to adjust the air vent direction, one pushes the toggle switch (located on the center console) at the 3 o'clock position. One knows when the correct function is selected because in the corner of the display screen, the ISO symbol for air vent direction is highlighted. Selection of the air vent direction function results in the display of other images on the display screen, this time the circle with four alternative air vent directions at each clock position. The desired air vent direction is selected by pushing the toggle switch at the depicted position.

Would a Vehicle With the Proposed Design Meet Standard No. 101's Requirement that Identification of Controls be "on or adjacent" to the Control?

With this background information, I will now address how Standard No. 101 affects your proposed design. S5.2.1(a) states in relevant part:

[a]ny hand-operated control listed in column 1 of Table 1 that has a symbol designated for it in column 3 of that table shall be identified by either the symbol designated in column 3 ... or the word or abbreviation shown in column 2 of that table. ... Any such control for which column 2 of Table 1 and/or column 3 of Table 1 specifies "Mfr. Option" shall be identified by the manufacturer's choice of a symbol, word or abbreviation, as indicated by that specification in column 2 and/or column 3. The identification shall be placed on or adjacent to the control. (Emphasis added.)

Controls listed in column 1 of Table 1 include the "heating or air conditioning fan," the "windshield defrosting and defogging system," the "rear window defrosting and defogging system," and the "heating and air conditioning system."

Further, S5.2.2 states in relevant part:

Identification shall be provided for each function of any automatic vehicle speed system control and any heating and air conditioning system control, and for the extreme positions of any such control that regulates a function over a quantitative range. If this identification is not specified in Table 1 or Table 2, it shall be in word or symbol form unless color coding is used. If color coding is used to identify the extreme positions of a temperature control, the hot extreme shall be identified by the color red and the cold extreme by the color blue.

The primary issue raised by your proposed design is whether, given the substantial distance between the combination multi-function switch/rotary dial and the related video display, the identification provided by means of the video display can be said to meet the standard's requirement that identification for specified controls be provided "on or adjacent to" the control.

I note that, in both the case of the fan control and the heating and air conditioning system controls, one must rely on the video display screen for identification of all of the functions. As previously noted, one turns the fan on or off by pressing on one of the buttons above the dial on the center console, and one turns on the heating and air conditioning system by pressing the toggle switch at the 12 o'clock position on the combination multi-function switch/rotary. In both cases, pressing the button or switch turns the function on, but to adjust the system, the dial must be turned to the right or left. The identification of the function engaged in twisting the dial is shown on the video display screen only, not on the center console.

The Random House Compact Unabridged Dictionary, Special Second Edition, defines "adjacent" as follows:

1. lying near, close, or contiguous; adjoining; neighboring: a motel adjacent to the highway. 2. just before, after, or facing: a map on the adjacent page.

In a June 8, 2000, letter to an unnamed company, we addressed a proposed design where several multi-function push button switches were accompanied by a video screen which depicted the switches and the functions of the switches, which varied depending upon the system selected by the driver. In addressing whether the identification for the push button considered "on or adjacent" to the controls, we stated:

The answer is yes. The video screen that shows the images corresponding to the switches, and identification for the switches, is directly above the switches. Although there is a small unavoidable break between the video screen and the switches, no control, display or other potential source of distraction appears between the video screen and switches. For these reasons, we conclude that the proximity between the switches and the images/identification is so close that they are "adjacent" to each other.

By contrast, for your proposed design, there is no such close proximity between the combination multi-function switch/rotary dial and the related video display. Therefore, they cannot be considered to be "adjacent" to each other.

We note that by implication in our June 8, 2000, letter and as explained further in a February 28, 2001, letter to Mazda, we adopted an especially broad interpretation with respect to the identification of the "extreme positions" of controls that regulate a function over a quantitative range, as applied to controls which rotate indefinitely. We explained our position as follows:

Standard No. 101 does generally require that identification of controls be on or adjacent to the controls. Otherwise, there would be no logical connection between the identification and the control. This is why we made it clear, for the push button switches we addressed in our June 8, 2000, letter, that there needed to be close proximity between the switches and the images/identification.

For traditional controls that regulate a function over a quantitative range, e.g., dials, levers or buttons that move only within a limited range, it makes obvious sense to require identification of the extreme positions to be located on or adjacent to the controls. This is the logical way for a driver to be able to identify the extreme positions.

However, such a requirement does not necessarily make sense for new kinds of controls that regulate a function over a quantitative range, but do not have extreme positions in the traditional sense. For example, dials that can be rotated indefinitely are sometimes associated with a visual display. In a sense, the control consists of both the dial and the display. While it is obviously important that identification of the dial itself be located on or adjacent to the dial, there is no extreme position (in the traditional sense) to identify. And, whether for the system we addressed in our June 8, 2000, letter or for your system, we see no reason to interpret the standard to require the "means by which the driver can know when the extreme positions have been reached" (i.e., the relevant displays) to be on or adjacent to such dials.

We note, however, that if the relevant displays are separated from the dials, there must be sufficient independent identification for both the dial and the separate display that the driver can understand both items. Our review of your proposed design does not indicate any problem in this area. For example, the dial for the fan control is marked with the fan symbol to indicate function and (+) (-) signs to indicate how fan speed is increased and decreased, and the display for fan speed shows the fan symbol to identify function and a triangle to indicate relative speed.

Your system, however, is not covered by this interpretation. It involves controls other than ones which regulate a function over a quantitative range, e.g., the selection of AC subsystem functions. These controls are akin to the switches and the images/identification we discussed in our June 8, 2000, letter and which we concluded were subject to the requirement that identification be provided on or adjacent to the control. Also, in using the multi-function switch/rotary dial for controlling the fan over a quantitative range, there isn't sufficient independent identification for both the dial and the separate display. I also note that the permanent labeling of the combination multi-function switch/rotary dial with the terms "A/C, SET, Radio and BC," is inaccurate, in the sense that that labeling does not apply in situations where the driver has already selected a particular function by means of one of the four toggle switches. While correct identification is provided by means of the non-adjacent display, the actual control is mislabeled at that time.

As is apparent from reading a number of our prior interpretations of Standard No. 101, we have sought to interpret it in a broad manner in light of new technology. There is a limit, however, to how much we can do by interpretation as opposed to conducting rulemaking to facilitate the use of new technology. We recognize that the use of your system may be intuitive to persons who are familiar with computers and/or video games, since use of the multi-function switch/rotary dial is analogous to the use of a computer mouse or video game controller. However, given the current language of Standard No. 101, if a system such as your proposed design is to be permitted, where identification of controls is separated from the controls themselves, it must be done through rulemaking.

We understand that the Alliance of Automobile Manufacturers (which includes Porsche) has recently submitted a petition for rulemaking on this subject and we plan to address this issue further in that context.

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

Sincerely,

John Womack
Acting Chief Counsel

ref:101
d.1/10/02

¹ Mr. Kardos orally asked for confidential treatment of the three pages. Mr. Kardos agreed that Porsche would not consider a written description of the computer image or the other two pages as confidential.

James D. Sillery, Esq.
Mollica, Gall, Sloan and Sillery Co., L.P.A.
35 North College St.
Post Office Drawer 958
Athens, OH 45701

Dear Mr. Sillery:

This responds to your April 25, 2001, letter in which you relate an incident in which the seats of a 1999 Toyota Camry automobile collapsed in a rearward direction after the vehicle was struck from behind. You further indicate that the manufacturer of the vehicle has indicated to you that the seats in question were designed to "yield" in the event of a rear impact in order to absorb the energy that would otherwise be transmitted to the seat occupant in a rear end collision. You are concerned about the potential safety consequences of such a seat collapse for both the occupant of the seat and other occupants sitting to the rear of an occupied seat. Due to your concern, you ask if the issue of seat back strength has been "dealt with" by this agency and what the agency's position is in regard to these seats.

We would like to begin by explaining that the National Highway Traffic Safety Administration (NHTSA) is authorized to issue Federal motor vehicle safety standards that set performance requirements for new motor vehicles and items of motor vehicle equipment. Manufacturers are required to certify that their products conform to our safety standards before they can be offered for sale.

NHTSA is very concerned about seat back strength and performance. The agency's present performance standard for seats, Standard No. 207 (49 CFR 571.207) went into effect for passenger cars in 1968 and was extended to multipurpose vehicles, trucks and buses in 1972. Since that time NHTSA has embarked on a number of actions intended to study the feasibility of upgrading the standard's requirements. In 1989, the agency granted five petitions for rulemaking. Each requested that NHTSA consider certain changes to Standard No. 207. Pursuant to the granting of these petitions, NHTSA published a Request for Comments in the Federal Register (57 FR 54958) in November 1992 asking for input on agency research findings and a proposed research plan. (Responses to the request for comments, which you may find illuminating, can be accessed through the Department of Transportation's electronic docket system at http://dms.dot.gov/ under docket number 4064.) Since the publication of the Request for Comments, NHTSA has performed a study of the relationship between seat performance and injuries and conducted research aimed at gaining a greater understanding of seat performance and the means for improving seat performance ⁽¹⁾.

We note that your letter asks for the agency's position on "these kinds of seats." We assume that in referring to "these kinds of seats" that you are asking for NHTSA's view on seats that deform or "collapse" in a rearward direction in a serious rear impact and whether seats that deform or "yield" in a rear impact are desirable.

For many years, there has been considerable debate among automotive safety experts regarding the level of seat back stiffness. The issues surrounding this debate are quite complex and the agency is assessing the merits of several options related to the modification of the seat standard. We anticipate issuing a Notice of Proposed Rulemaking to upgrade this standard next spring. However, as the agency's proposal has not yet been released, we cannot provide you with more specific information at this time.

I hope this information is helpful to you. If you have any questions or need further information, please feel free to contact Otto Matheke of this office at

(202) 366-3820.

Sincerely,

John Womack
Acting Chief Counsel

ref:207
d.10/25/01

1. ¹( http://www.nhtsa.dot.gov/cars/rules/crashworthy/Seats/index.html)
( http://www-nrd.nhtsa.dot.gov/departments/nrd-01/summaries/B0119.html)

Mr. Kenneth Conaway
Adaptive Mobility Inc.
7050 Guion Road
Indianapolis, IN 46268

Dear Mr. Conaway:

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 for clarification of the statutory prohibition against making required safety equipment inoperative. You are particularly interested in whether a modifier may alter a vehicle that has already been purchased by the individual seeking to have the vehicle modified.

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") (recodified at 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. Alterers of motor vehicles are companies that modify a completed vehicle prior to first retail sale. Alterers must determine whether those modifications could negate the vehicle manufacturer's certification of compliance and, if so, must certify the vehicle as to those safety standards that were affected by the modification.

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). This exemption is codified in 49 CFR Part 595. Only portions of some FMVSSs are covered by the exemption. Additionally, the exception only applies to modifications made after the first retail sale of the vehicle.

How and if an FMVSS applies to a particular business is dependent upon the product or services that the business provides. Producers of equipment that is used in a system designed to comply with a particular FMVSS are component suppliers and would not be directly subject to the requirements of the standard, ⁽¹⁾ although any manufacturer or alterer using the product would be. Final stage manufacturers or alterers of vehicles that modify a vehicle system that the previous-stage manufacturer had certified as compliant must certify that the vehicle, as finally manufactured or altered, complies with all applicable FMVSS. Thus, each vehicle must remain in compliance with all applicable safety standards until the time of its first retail sale. Additionally, 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.

As noted above, the prohibition against making required safety equipment inoperative applies to "manufacturers, distributors, dealers, and motor vehicle repair businesses." A motor vehicle repair business is defined in 49 U.S.C. 30122(a) as "a person holding itself out to the public to repair for compensation a motor vehicle or motor vehicle equipment." This term includes businesses that receive compensation for servicing vehicles without malfunctioning or broken parts or systems by adding or removing features or components to or from those vehicles or otherwise customizing those vehicles. (49 CFR 595.4) Thus, unless a modification is covered by the Part 595 exemption, any type of modification to a vehicle that has been sold to a retail customer that negates compliance with a FMVSS is prohibited, even if the modifications are made pursuant to the vehicle owner's instructions.

We note that an individual who modifies his or her own personal vehicle is not subject to the Federal prohibition against making required safety equipment inoperative. However, we recommend that owners not take actions that adversely affect their safety. Moreover, any individual who wishes to modify his or her vehicle should first verify that there is no prohibition against such modifications under the laws of the individual's state.

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.3/1/02

Granta Y. Nakayama, Esq.
Kirkland & Ellis
655 Fifteenth Street, NW
Washington, DC 20005

Dear Mr. Nakayama:

This responds to your letter of July 23, 2001, concerning whether Ferrari S.p.A. and Maserati S.p.A. qualify for the small volume manufacturer (SVM) implementation schedule in the final rule for advanced air bags. You provided information with that letter, and in a previous meeting, to supplement information provided in a letter sent by Mr. Mark A. Recchia of Fiat Auto R&D, U.S.A. You asked about this matter in light of the ownership relationships between these companies and with Fiat Auto S.p.A. and General Motors. As discussed below, it is our opinion that Ferrari S.p.A. and Maserati S.p.A. would be considered separately, both with respect to each other and with respect to Fiat Auto S.p.A. and General Motors, for purposes of qualification for the SVM implementation schedule.

The National Highway Traffic Safety Administration's new requirements for advanced air bags are included as part of Standard No. 208, Occupant Crash Protection. Paragraph S14.1(d) of that standard, as amended by the final rule we published in the Federal Register (65 FR 30680) on May 12, 2000, provides that "(v)ehicles that are manufactured by a manufacturer that produces fewer than 5,000 vehicles worldwide annually" are subject to a special implementation schedule. (Emphasis added.)

I note that the Coalition of Small Volume Automobile Manufacturers (COSVAM) submitted a petition for reconsideration asking us to expand that definition to manufacturers of no more than 10,000 vehicles per year. Alternatively, it petitioned that the 5,000 vehicle cap be limited to vehicles sold in the United States per year or that the 5,000 vehicle cap be averaged over the phase-in period. Under the averaged proposal, if a manufacturer produced more than 5,000 vehicles in a single year, it could still take advantage of the exclusion as long as the average of production during the phase-in was not more than 5,000 vehicles per year.

We will respond to the COSVAM petition as part of our general response to petitions for reconsideration of the May 2000 final rule for advanced air bags. We expect to issue a response in the near future. I observe that, however we respond to the requests of COSVAM, it will not affect the primary issue raised by your letter: whether Ferrari S.p.A. and Maserati S.p.A. would be considered separately, with respect to each other and with respect to Fiat Auto S.p.A. and General Motors, for purposes of qualification for the SVM implementation schedule

According to the information provided by Mr. Recchia, the annual worldwide production of Ferrari cars themselves is and will remain well within 5,000 units. However, the annual worldwide production of Maserati S.p.A., which is wholly owned by Ferrari S.p.A., may exceed 5,000 units in the next few years. Mr. Recchia also indicated that Ferrari S.p.A. is 87 percent owned by Fiat S.p.A., which owns 80 percent of Fiat Auto S.p.A. and 5.1 percent of General Motors. Both Fiat Auto S.p.A. and General Motors are very large auto manufacturers. Mr. Recchia also noted in a telephone conversation with Edward Glancy of this office that it is possible that Ferrari cars and Maserati cars could be imported into the United States by the same importer during the time period in question.

You provided information showing that, notwithstanding the fact that Maserati S.p.A. is wholly owned by Ferrari S.p.A., they are two operationally independent companies with different products. In an Annex to your letter, you indicated that the separate nature of the two companies is exhibited by the different and dedicated products, development location and resources, production location and resources, and headquarter location and resources.

After considering the materials provided by Mr. Recchia and by you, it is our opinion, for purposes of considering whether a company qualifies for the SVM implementation schedule under paragraph S14.1(d) of Standard No. 208, that Ferrari S.p.A. and Maserati S.p.A. are separate manufacturers, both with respect to each other and with respect to Fiat Auto S.p.A. and General Motors. This opinion reflects several considerations.

First, Ferrari S.p.A. and Maserati S.p.A. are separate corporations, are operationally independent and are separate manufacturers for most purposes.

Second, the vehicles of related manufacturers are not ordinarily grouped together for purposes of determining compliance with phase-ins of new safety standards. We note that this is in contrast to determinations of compliance with fuel economy standards, where vehicles of related manufacturers are grouped together. However, the grouping of vehicles of related manufacturers for purposes of fuel economy standards is done pursuant to an explicit statutory provision.

Third, while it is possible that Ferrari cars and Maserati cars could be imported into the United States by the same importer, we established the special provision in paragraph S14.1(d) for SVMs in light of the technical challenges faced by these manufacturers given the complexity of the new advanced air bag requirements. Ferrari S.p.A. and Maserati S.p.A. are separate European manufacturers, and the use of a common importer would not affect the challenges these companies face in meeting the requirements for advanced air bags.

Finally, the ownership relationships between these companies and with Fiat Auto S.p.A. and General Motors are longstanding and do not represent any "gamesmanship" to avoid the phase-in requirements.

We would caution that this interpretation reflects specific consideration of the factors underlying paragraph S14.1(d) of Standard No. 208 and should not be viewed as providing guidance for interpreting any other regulatory provisions.

If you have any further questions, please feel free to call Edward Glancy of my staff at (202) 366-2992.

Sincerely,

John Womack
Acting Chief Counsel

ref:208
d.8/22/01

Paul Jackson Rice, Esq.
Arent Fox Kintner Plotkin & Kahn, PLLC
1050 Connecticut Avenue, NW
Washington, DC 20036-5339

Re: Request for Interpretation

Dear Mr. Rice:

This is in reply to your letter of May 2, 2001, requesting an interpretation on behalf of your client, Feel Good Cars Inc. (FGC) of Ontario. Specifically, you would like to know whether "under Federal law and applicable NHTSA regulations the FGC Renault Dauphine would be considered a restored antique vehicle excepted under 49 U.S.C. Sec. 30112(b)(9) or a newly manufactured vehicle subject to current applicable motor vehicle safety standards."

To assist us in our reply, you enclosed a copy of a "Recommendation Report" prepared for FGC and titled "Restoration and Conversion of Renault Dauphines to the Optional 1959-1961 'Henney' Electric Propulsion Package" (the Report) dated December 4, 2000, and a copy of a letter from Transport Canada dated March 20, 2001, advising that the FGC vehicle would be an "antique vehicle" under Canadian law, and therefore outside the Motor Vehicle Safety Act (Canada).

We have no definition of "restored antique vehicle." Section 30112(b)(9), which you cite, allows importation of "a motor vehicle that is at least 25 years old" without the need to conform the vehicle to the Federal motor vehicle safety standards that may have applied to it as of the date of its manufacture. Thus, the issue is whether we can regard the FGC Renault Dauphine as a motor vehicle that is more than 25 years old.

I am enclosing a copy of our letter of September 29, 1999, to John Harland of HarLand Rover Restorations. Mr. Harland described the modifications he made to Land Rovers as "restorations." We defined a restored vehicle as one that has been returned to its "former, original, normal, or unimpaired condition." We concluded that Mr. Harland's operations were sufficiently extensive that he was not a restorer but a "manufacturer" of motor vehicles, and that "the extent of disassembly of the original vehicle, the substitution of equipment not used in the original vehicle such as the engine and frame, and reassembly with certain items of new equipment" resulted in a new vehicle, one that could not be regarded as 25 years or older.

Similarly, given the overall operations being conducted by Feel Good Cars, including but not limited to the extent of disassembly of the original vehicle, the substitution of a new and different type of power plant, and reassembly with certain items of new equipment, we do not regard these cars as 25 years or older.

You may also wish to call your client's attention to the possibility of obtaining a temporary exemption for its low-emission motor vehicle (49 CFR 555.6(b)).

If you have any questions, you may call Taylor Vinson (202-366-5263).

Sincerely,

John Womack
Acting Chief Counsel

ref:571
d.8/23/01

Kenneth Conaway
Adaptive Mobility , Inc.
7050 Guion Road
Indianapolis, IN 46268

Dear Mr. Conaway:

This responds to your request for a definition of the terms "load carrying capacity" and "available load capacity" as used in 49 CFR 595.7(e)(5). This section sets forth certain disclosure requirements related to vehicle modifications made for a person with a disability. Among the requirements set forth in this section is a statement of the load carrying capacity of the vehicle if it has been reduced by more than 100 kilograms (220 pounds). I regret the delay in responding.

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

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

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

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

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

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

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

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

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

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

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

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

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

Sincerely,

Jacqueline Glassman
Chief Counsel

ref:595
d.4/25/02

Mr. Bing Kam
6902 Midhurst
Memphis, TN 38119

Dear Mr. Kam:

This is in reply to your letter of May 7, 2001, "seeking approval of pending patent title 'Automatic Warning Signal System for Vehicles,'" as supplemented by your letter of June 28, 2001. We have no authority to approve or disapprove items of motor vehicle equipment such as your invention. We can, however, advise you as to the legality of your patented system under the laws that we administer.

Your automatic warning signal system (the System) is intended to reduce rear end collisions by providing an early warning signal to following drivers. According to the Abstract of your patent (US 6,225,918 BI, May 1, 2001), the System produces "a warning signal which includes activating the brake light or lights of the leading vehicle without the actual application of the brakes to caution the driver of the following vehicle."

Federal Motor Vehicle Safety Standard No. 108, Lamps, Reflective Devices, and Associated Equipment, and 49 U.S.C. 30122 are the Federal laws and regulations that are determinative of the legality of the System. A motor vehicle must be manufactured to comply with Standard No. 108. Paragraph S5.5.4 of Standard No. 108 requires the stop lamps to be activated upon application of the service brakes. We view this requirement as meaning that stop lamps can only be activated in this manner. Because the System activates the stop lamps without the brakes being applied, or downshifting, or retarders, it would not be legal for the System to be used as original equipment on motor vehicles. The System is also subject to the restrictions of S5.1.3 of Standard No. 108. This paragraph prohibits the installation of accessory equipment that impairs the effectiveness of lighting equipment required by Standard No. 108. We regard activation of the stop lamps without commensurate braking as impairing the effectiveness of the stop lamps because this activations does not indicates an intent to slow or stop the vehicle which is the purpose of the stop lamps.

Because the System is not legal as original equipment, there are Federal restrictions on it in the aftermarket as well. Installation of the System on a vehicle would create a noncompliance with Standard No. 108, specifically S5.1.3 and S5.5.4. Section 30122 prohibits manufacturers, dealers, distributors, and motor vehicle repair businesses from "making inoperative" equipment such as stop lamps that are installed on a vehicle pursuant to a Federal motor vehicle safety standard. However, this prohibition does not extend to acts by the vehicle owner. Nevertheless, after reviewing your patent, we believe that a purchaser of the System would require the technical services of a manufacturer, distributor, dealer, or motor vehicle repair business to install the System. Even if a vehicle owner installs the System, the legality of its use must be determined under the laws of each state in which the vehicle is registered and used. We are unable to provide you with advice on state laws.

We receive numerous letters from inventors such as yourself who seek to improve traffic safety, and we appreciate your concern. Most of these ideas have an appealing intuitive basis but are not supported with data demonstrating their efficacy. I am enclosing copies of a statement we published on November 4, 1998 (63 FR 59482), discussing the agency's policy regarding evaluation of new signal lighting ideas with the thought that it may be of interest to you.

Sincerely,

John Womack
Acting Chief Counsel

Enclosure
ref:108
d.7/6/01

Mr. William E. Lawler
Manager, Specifications
Indiana Mills & Manufacturing, Inc., (IMMI)
18881 U.S. 31 North
P.O. Box 408
Westfield, IN 46074-0408

Dear Mr. Lawler:

This responds to your request that the National Highway Traffic Safety Administration interpret the metric conversion of one inch in Standard No. 209 Seat Belt Assemblies, at S4.3(j)(1), as 25.4 millimeters (mm), not the specified 25 mm. You do not explain why you prefer 25.4 mm.

The 25 mm measurement was adopted as part of an initiative to convert English measurements in the Federal motor vehicle safety standards to metric measurements. We proposed to convert one inch in S4.3(j)(1) of Standard No. 209 to 25 mm, in accordance with the principle that we generally favor equivalent, not exact conversions. We adopted the 25 mm measurement after publishing notice of the proposed conversion in the Federal Register (April 21, 1997; 62 FR 19253), and receiving comment on the proposal. The 25 mm measurement is clearly specified in Standard No. 209. We cannot interpret the provision as 25.4 mm.

We note, however, that we are considering rulemaking to amend S4.3(j)(1). We will consider including a proposal to change the 25 mm value to 25.4 mm.

Please contact us if you have further questions. For information about metric conversion principles, please feel free to contact Ms. Dorothy Nakama of my staff at (202) 366-2992. If you have questions about Standard No. 209, you may contact Mr. Otto Matheke at the same telephone number.

Sincerely,

John Womack
Acting Chief Counsel

Enclosure
ref:209
d.11/16/01

The Honorable Todd R. Platts
Member, U.S. House of Representatives
2209 East Market Street
York, PA 17402

Dear Congressman Platts:

Thank you for your letter of April 25, 2001, to the U.S. Department of Transportation's (DOT) Office of Congressional Affairs on behalf of your constituent,

Mr. Dean Thoman, of Glen Rock, PA. Mr. Thoman's church operates a small private school that recently purchased a used 15-passenger van to transport school children for school-related activities. After the purchase, Mr. Thomas found information leading him to believe "it was against federal and State law to use this van to transport school age children for any school activity. " Mr. Thoman then attempted to return the van to the dealer but was refused. Mr. Thoman sought your office's assistance in returning the van and getting a refund. You have asked DOT to review Mr. Thoman's situation. Because you seek information about laws administered by the National Highway Traffic Safety Administration (NHTSA), I have been asked to respond to you.

Some background information may be helpful. NHTSA is authorized to issue and enforce Federal motor vehicle safety standards (FMVSS) applicable to new motor vehicles. Our statute at 49 U.S.C. '30112(a) requires any person selling or leasing a new vehicle to sell or lease a vehicle that meets all applicable standards. Accordingly, persons selling or leasing a new "school bus" must sell or lease a vehicle that meets the safety standards applicable to school buses. Our statute at 49 U.S.C. '30125 defines a "school bus" as any vehicle that is designed for carrying a driver and more than 10 passengers and which, NHTSA decides, is likely to be "used significantly" to transport "preprimary, primary, and secondary" students to or from school or related events. ⁽¹⁾ This definition was enacted in 1974, as part of a comprehensive effort by Congress to increase school bus safety. By regulation, the capacity threshold for school buses corresponds to that of buses -- vehicles designed for carrying more than ten (10) persons.

The great majority of vehicles used to transport students fall within the definition of "school bus." More specifically, any new "bus" sold to a school district, or to a private school, is considered to be a "school bus" when sold for pupil transportation, and as such must comply with the school bus safety standards. A dealer or distributor who sells a new bus to a school district or private school that does not meet school bus standards is subject to penalties under the statute.

Under Federal law, a school district or private school can be sold a used bus (i.e., a 15-passenger van), even though the vehicle could not be sold as a bus when new. This is because NHTSA's requirement to sell vehicles that meet applicable safety standards does not apply to the sale of a motor vehicle "after the first purchase of the vehicle ... in good faith other than for resale," i.e., to sales of used vehicles. Nonetheless, because school buses are one of the safest forms of transportation in this country, we strongly recommend that all buses that are used to transport school children be certified as meeting NHTSA's school bus safety standards.

Although we cannot assist Mr. Thoman in his efforts to return the 15-passenger van to the dealer for a refund, Mr. Thoman may wish to show this letter and enclosures to the dealer. This will put the dealer on notice that a dealer selling a 15-passenger van for school transportation could be subject to liability in the event of a crash.

Our belief that vehicles providing the safety of school buses should be used whenever transporting children in buses is shared by the National Transportation Safety Board (NTSB). At a June 8, 1999, public meeting, the NTSB issued the enclosed abstract of a special investigative report on nonconforming buses. The NTSB issued the report after investigating four crashes in 1998 and 1999 in which 9 people were killed and 36 injured when riding in "nonconforming buses." NTSB defines "nonconforming bus" as a "bus that does not meet the FMVSSs specific to school buses." Most of the victims, including eight of the fatalities, were children.

I hope this information is helpful. If you have any further questions, please contact me at (202) 366-9511.

Sincerely,

John Womack
Acting Chief Counsel

Enclosures
ref:VSA#571.3
d.6/6/01

1. ¹ NHTSA has consistently interpreted "related events" to include school-sponsored field trips and athletic events.

Mr. Edward M. Kronk
Butzel Long, PC
Suite 500
150 West Jefferson
Detroit, MI 48226-4430

Dear Mr. Kronk:

This is in reply to your letter of April 26, 2001, asking three questions about the relationship of Federal Motor Vehicle Safety Standard (FMVSS) No. 108 to lighting equipment that may be marketed as being for off-road use but that is capable of being installed on-road vehicles and used on the public highways. You remarked that "there is interest in the automotive enthusiast community in using so-called 'European-styled' or 'E-Code' Headlamps as replacement headlamps," and that they are not certified as complying with Standard No. 108. Your questions, and our responses, are set forth below.

"1. May automotive headlamps that do not comply with FMVSS 108 be imported and sold in the US for "off-road" use on "off-road" vehicles?

"Off-road" and "off-road vehicles" are not terms defined in Standard No 108 or in any other regulation or law that we administer, and have no legal meaning. You identify the headlamps as "replacement headlamps." In our view, S5.8, Replacement equipment, of Standard No. 108 requires that any motor vehicle replacement headlamp that is offered for sale in the United States must comply with the same requirements as are applicable to the original equipment that it replaces. I enclose letters on related subjects that we sent to Mitch L. Williams of Hella on July 17, 1998, and to Tobin Tracy of Clr Alt Accessories on April 17, 2001. We informed Mr. Tracy that "any item of motor vehicle lighting equipment manufactured to replace lighting equipment that is required on a new vehicle by Standard No. 108 must itself comply with Standard No. 108," and that such a term as "off-road" has no exclusionary meaning under Federal law.

"2. Does the answer to question 1 change if, despite the express intent of the manufacturer and seller of the headlamps that they be used only "off-road," they are capable of being installed and used "on-road" in conventional "on-road" vehicles?

As noted above, if the headlamps are capable of being installed and used in motor vehicles subject to the Federal motor vehicle safety standards (i.e., "conventional 'on-road' vehicles"), they are motor vehicle headlamps that must comply with Standard No. 108 in order to be imported or sold regardless of the "intent" of the importer or seller. Even if we assume the best of intentions, we recognize that a seller has no control over the use of a product after it is sold.

"3. If the importation and sale of such noncompliant headlamps intended for off-road use only is permitted, what packaging and labeling requirements, if any, apply to their importation and sale?

As we have indicated in response to question 2, such lamps may not be imported or sold regardless of their packaging or labeling.

I hope that this answers your questions.

Sincerely,

John Womack
Acting Chief Counsel

Enclosures
ref:108
d.6/28/01