ID: 2868o

Mr. James P. Nolan, Jr.
President
Nolan and Taylor-Howe Funeral Home, Inc.
5 Laurel Avenue
Northport, NY 11768

Dear Mr. Nolan:

This is in reply to your letter of March 24, 1988, enclosing a letter you have received from the Department of Motor Vehicles, New York State, advising you that your l987 Cadillac hearse requires a center high-mounted stop lamp. You have asked for the specifications of such a lamp.

The center high-mounted stop lamp is required only on passenger cars. A passenger car is defined as a motor vehicle "designed for carrying l0 persons or less." A "multipurpose passenger vehicle" is one "designed for carrying l0 persons or less which is constructed either on a truck chassis or with special features for occasional off road operation." A "truck" is defined as a motor vehicle "designed primarily for the transportation of property or special purpose equipment." The agency recognizes chassis constructed for commercial use, such as a hearse, as the equivalent of a truck chassis. The determination of vehicle category is initially that of the manufacturer or final stage assembler who certifies compliance with all Federal motor vehicle safety standards applicable to the category of vehicle selected. In our opinion, a hearse could be properly certified as a either a "multipurpose passenger vehicle," or a "truck."

In a conversation with Taylor Vinson of this Office on April 29, you informed us that the first six characters of the VIN of your hearse are "lGED09", and that its final stage assembler, Superior, had certified it as an "MPV" (multipurpose passenger vehicle). The "G" in the VIN identifies it, according to internal documents of the initial stage manufacturer, General Motors, as "Cadillac Incomplete Coaches" (meaning, it would appear, funeral coaches), and the "9" as "Cadillac Commercial Body/Chassis." This chassis does not form the basis of any passenger car completed by Cadillac. The letter from New York State states "The manufacturer claims that funeral cars are classified as multipurpose vehicles and do not require the lights." This is correct, as you have told us that Superior has classified it as an MPV, and certified its compliance to all standards applicable to that vehicle category. As the center high-mounted stop lamp standard is not one of those applicable to multipurpose passenger vehicles, there is no Federal requirement that your hearse be equipped with such a lamp.

We appreciate your interest in safety, and trust that this answers your question.

Sincerely,

Erika Z. Jones Chief Counsel ref:l08#571 d:5/4/88

ID: 2869o

Mrs. Patricia Bicking
1132 Chestnut Avenue
Woodbury Heights, NJ 08097

Dear Mrs. Bicking:

This is a response to your letter of last fall in which you asked a number of questions concerning seat-belts and large school buses. I apologize for the delay in responding. In your correspondence, you enclosed a letter of January 19, 1984, from this Office to Thomas Built Buses, Inc., (Thomas), and the incoming letter from Thomas that was the basis of our interpretation.

Your first question references the January 1984 letter, and asks why the National Highway Traffic Safety Administration (NHTSA) decided that when school bus manufacturers install seat-belts or seat-belt anchorages on large school buses (over 10,000 lbs. gross vehicle weight rating [GVWR]), the manufacturers do not have to certify that the belts or anchorages meet Federal motor vehicle safety standards 208, 209, and 210.

The answer to this question is that NHTSA does not require a school bus manufacturer to install seat-belts on large school buses. Our regulations require a motor vehicle manufacturer to certify compliance to all applicable standards. You ask whether this decision still stands. The answer to that question is "yes" for the reason just stated. The agency does not require large buses to have seat-belts because the "compartmentalization" concept (to which you allude in your letter) supplies adequate protection for passengers in large school buses.

Let me give you some background information on our school bus regulations that I think will help address your questions. The National Highway Traffic Safety Administration (NHTSA) is responsible for developing safety standards applicable to all new motor vehicles, including school buses. In 1977, we issued a set of motor vehicle safety standards regulating various aspects of school bus performance. Among those standards is Standard 222, School Bus Passenger Seating and Crash Protection. Standard 222 requires large school buses to have passenger crash protection through "compartmentalization."

Compartmentalization requires large school buses to incorporate certain protective elements into the vehicles' interior construction, thereby reducing the risk of injury to school bus passengers without the need for safety belts. These elements include high seats with heavily padded backs and improved seat spacing and performance. (Our regulations require a safety belt for the school bus driver because the driver's position is not compartmentalized. Further, because small school buses experience greater force levels in a crash, passengers on these vehicles need the added safety benefits of the belts.)

You also asked whether there have been any improvements in school bus seating compartments since 1977, and whether the improvements are mandatory. The answer to your question is that there have been no major changes in the school bus safety standards since they became effective in April, 1977. However, the agency continuously reviews school bus safety standards to assess whether it is appropriate to add or amend a requirement.

You may be interested to know that school buses continue to have one of the lowest fatality rates for any class of motor vehicle. Large school buses are among the safest motor vehicles because of their size and weight (which generally reduce an occupant's exposure to injury-threatening crash forces); the drivers' training and experience; and the extra care other motorists take when they are near a school bus. For these reasons, NHTSA has not required safety belts in large school buses.

I hope you find this information helpful. If you have further questions, please contace Joan Tilghman, of my staff, at (202) 366-2992.

Sincerely,

Erika Z. Jones Chief Counsel

ref:222 d:5/4/88

ID: 2870o

Ms. Deborah M. Bakker
Assistant Manager, Regulatory Affairs
MMC Services, Inc.
3000 Town Center
Suite 1960
Southfield, MI 48075

Dear Ms. Bakker:

This letter is in response to your request for an interpretation of 49 CFR Part 541, Federal Motor Vehicle Theft Prevention Standard. Specifically, you asked about a situation in which a car line (the Mitsubishi Galant) was designated as a high theft line beginning in the 1987 model year, pursuant to the procedures set forth in Part 542. Mitsubishi applied for and received an exemption from the marking requirements of the theft prevention standard because of a standard equipment antitheft device to be installed in the Galant. This exemption, issued pursuant to Part 543, applied beginning in the 1987 model year.

For the 1988 model year, the body style of the Galant was redesigned and a new nameplate was assigned to the line. It is now called the Galant Sigma. Additionally, Mitsubishi plans to introduce a new car line in the 1989 model year called the Galant. This line is, according to your letter, completely redesigned from the 1987 line that was called the Galant, bears no resemblance to the Galant Sigma, and will cost less than either the Galant Sigma or the 1987 line called Galant.

You posed the following questions:

1. Should a new theft determination be made for both the Galant Sigma and the redesigned Galant?

ANSWER: No. Based on the information enclosed with your letter, we conclude that the redesigned Galant is a continuation of the 1987 Galant line and the Galant Sigma is a new model within the Galant line.

As a general matter, section 601(2) of the Motor Vehicle Information and Cost Savings Act (15 U.S.C. 2021(2)) defines the term "line" as "a name which a manufacturer applies to a group of motor vehicle models of the same make which have the same body or chassis, or otherwise are similar in construction or design." As noted in your letter, the agency uses the same language to define the term "line" in 541.4. This language treats groups of motor vehicles as a continuation of an existing line if the groups have the same name and are similar in construction or design. We have applied this language in the following manner.

With respect to the redesigned Galant, I addressed such a question in my March 6, 1987 letter to Mr. Jeffrey Link (copy enclosed) as follows:

The agency has in several instances determined that groups of vehicles using the same name as previous groups of vehicles were continuations of the previous line, even though the new vehicles used all new sheet metal and drivetrains as compared with the previous group of vehicles. This determination was based on the fact that the vehicles were still similar in construction or design to the older vehicles they replaced. On the other hand, NHTSA has also determined that groups of vehicles using the same name as previous groups of vehicles were nevertheless new lines, because of significant changes in the construction or design of the vehicle. For instance, when a vehicle is redesigned to be front wheel drive, it is not treated as the same line as the predecessor rear wheel drive line, even if the newly designed vehicle has the same name as the older vehicles.

The redesigned Galant obviously has the same name as the 1987 model year Galant. Additionally, the redesigned Galant is similar in construction and design to the 1987 Galant, notwithstanding the new sheet metal and different drivetrains. Accordingly, we believe that the redesigned Galant is a continuation of the 1987 Galant line. This means that the redesigned Galant is subject to the previous high theft determination for the Galant line.

With respect to the Galant Sigma, we conclude that this is a new model within the Galant line, not a new line. In our preamble to the insurer reporting requirements in 49 CFR Part 544, we discussed the application of the terms "model, make, and line" as follows:

"Make" refers to the general name used by the vehicle manufacturer. For example, Dodge, Ford, and Pontiac are makes of vehicles. "Line" refers to the nameplate assigned by the manufacturer to a group of vehicle models of the same make. For example, Dodge Charger, Ford Thunderbird, and Pontiac 6000 are lines of vehicles. "Model" refers to a specific grouping of similar vehicles within a line. For example, the Dodge Charger 2.2 2-door, Ford Thunderbird Turbo Coupe, and Pontiac 6000 LE 4-door are models. 52 FR 59, at 65; January 2, 1987.

In general, if a manufacturer calls a group of vehicles by the same general name as it applies to another group, but adds a further description to that name (e.g., Honda Civic CRX, Volkswagen Golf GTI, and Porsche 911 Carrera), we presume that the further description indicates a unique model within that line. This presumption can be overcome only if the vehicle with the further description in its name is not "similar in construction or design." Thus, we have determined, for example, that the Honda Civic CRX is simply a model within the Civic line, notwithstanding the fact that its driveline and body styling are different from all other Honda Civic models. It is similar in construction or design (all are front-wheel drive passenger cars) and bears the same name as other Civics.

On the other hand, the Colt/Mirage Station Wagon is not considered a model within your Colt/Mirage line. The Station Wagon bears the same name as other Colt/Mirage models. However, the Colt/Mirage Station Wagon is classified as a multipurpose passenger vehicle, while the other Colt/Mirage models are passenger cars. This difference is substantial enough that the vehicles are not "similar" in construction or design.

In the case of the Galant Sigma, we agree that it is not identical in construction or design to the other redesigned Galant models. However, it is similar in construction and design to the other Galant models, since all are front-wheel drive passenger cars. Hence, the Galant Sigma is simply a model within the Galant line.

2. If a new high theft determination should not be made for the redesigned Galant and the Galant Sigma, which of the vehicles is designated as high theft and for which car line could the exemption granted for the old Galant be used?

ANSWER: As explained above, the Galant Sigma is not a separate car line, but is simply a model within the Galant line. The redesigned Galant line is a continuation of the older Galant line. Thus, the previous high theft determination applies to all models in the redesigned Galant line, including the Galant Sigma.

The exemption that was granted to the older Galant line can be used for the redesigned Galant line if the antitheft device that was the subject of the previous petition is installed as standard equipment in all cars in the redesigned Galant line, including the Galant Sigma. If the antitheft device that was the subject of the previous petition is not installed as standard equipment in all cars in the redesigned Galant line, you would be required to mark all cars in the redesigned Galant line to conform to Part 541.

3. If one or both the redesigned Galant and the Galant Sigma are newly designated as high theft lines, can the exemption granted for the Galant in the 1987 model year be used for either or both car lines, or would the exemption be invalidated because of the change in body style?

ANSWER: Because the redesigned Galant is a continuation of the 1987 Galant line and the Galant Sigma is just a model within the redesigned Galant line, as explained above, the exemption granted under Part 543 to the 1987 Galant line continues in full effect for the redesigned Galant line. Your company has the option of installing anti-theft devices as standard equipment in all vehicles in the redesigned Galant line, including the Galant Sigma, in accordance with the 1987 exemption, or marking all major parts in all vehicles in the redesigned Galant line, in accordance with Part 541. 4. If an exemption is granted but a manufacturer continues to mark parts in accordance with Part 541, can installation of the anti-theft device be discontinued at any time?

ANSWER: Yes. Exemptions are granted only, among other things, after a determination has been made that the line in question is a high theft line that should be listed in Appendix A of Part 541. Section 541.3 states that the parts marking requirements of Part 541 apply to all lines listed in Appendix A. Section 541.5 requires each major part that is original equipment on a line designated as high theft to be marked with certain information. Section 541.6 requires each replacement major part for high theft lines to be marked with certain information. Thus, each line listed in Appendix A must comply with the requirements of sections 541.5 and 541.6.

There is a single exception to this requirement. Part 543 sets forth procedures by which a line that has been determined to be a high theft line can be exempted from the marking requirements of Part 541. To be eligible for an exemption under Part 543, an antitheft device must be installed as standard equipment in all cars in the line. The lines that have been granted exemptions under Part 543 are listed in a special subset of Appendix A, Appendix A-I. When a manufacturer gets an exemption for a line under Part 543, it is given two options to comply with the requirements of Part 541. First, the manufacturer can install the antitheft device that was the subject of the exemption proceeding under Part 543 as standard equipment on all cars in that line, in accordance with the terms of the exemption. However, the manufacturer is not required by Part 543 or any other provision to install standard equipment antitheft devices in that line. If the manufacturer chooses not to use the antitheft device exemption for that line, the manufacturer must choose the second option -- that is, marking the major parts of every car in the line, in accordance with 541.5, and marking the replacement major parts for that line, in accordance with 541.6. If a manufacturer has complied with both of these options in a particular model year, by marking every vehicle and every covered major replacement part for a line and by installing an antitheft device that was the subject of a Part 543 exemption proceeding in every marked vehicle, as posited in your example, the manufacturer is free to discontinue either, but not both, of the courses of action at any point during the model year. When the manufacturer chooses to discontinue either course of action for even a single vehicle in the high theft line, it is then required to follow the other course of action until the end of the model year in question.

Please note that this choice exists only if the manufacturer has complied fully with the requirements of Part 541.5 and Part 541.6 and with the terms of the exemption granted under Part 543. If some vehicles in a line or some of the replacement major parts were not marked in accordance with Part 541, the manufacturer must install the antitheft device that was the subject of the Part 543 proceeding in all vehicles in that line for the rest of the model year. When the next model year for the subject line begins, the manufacturer is permitted to discontinue the installation of the antitheft device and to comply with the requirements of Part 541 for that line in the new model year. However, for any particular model year, each of a manufacturer's lines must fully comply with either the requirements of Part 541 or the exemption granted under Part 543.

Please feel free to contact Steve Kratzke of my staff if you have any further questions or need more information on this subject.

Sincerely,

Erika Z. Jones Chief Counsel

Enclosure

ref:54l#542#543 d:5/4/88

ID: 2871o

CERTIFIED MAIL -- RETURN RECEIPT REQUESTED

Mr. Alberto Negro Director Fiat Research & Development -- U.S.A. Branch Parklane Towers West Suite 1210 Dearborn, MI 48126

Dear Mr. Negro:

This responds both to your revised report, dated January 20, 1988, pursuant to 49 C.F.R. Part 585, on behalf of Alfa Lancia Industriale S.p.A. (Alfa Romeo), covering compliance with the automatic restraint "phase-in" requirements during the 1987 production year, and to your February 4, 1988, letter to Stephen Wood, our Assistant Chief Counsel for Rulemaking, seeking an interpretation of Standard No. 208, Occupant Crash Protection (49 CFR 571.208). Specifically, your question concerns whether Fiat may exclude automatic restraint-equipped convertibles from its determinations of annual production for the purpose of calculating the number of passenger cars that must comply with the automatic restraints requirements during the phase-in period.

Alfa Romeo, a subsidiary of Fiat, equipped some of its convertibles with automatic restraints during the 1987 model year, and Fiat counted those convertibles toward satisfying the requirement that 10 percent of 1987 production year cars be equipped with automatic restraints. You stated in your February 4 letter that you need clarification of whether Standard No. 208 permits you to exclude from your annual production calculations those convertibles that were equipped with automatic restraints and that were counted in determining whether the requisite percentage of production complied with the automatic restraint requirements. In other words, you wish to know whether Fiat may "count" Alfa Romeo convertibles equipped with automatic seat belts for the purpose of satisfying the 10% "phase-in" requirement for production year 1987, found at S4.1.3.1.2 of Standard No. 208, while excluding those same convertibles from the annual vehicle production calculations covering the 1987 production year.

The answer to your question is that Standard No. 208 does not allow Fiat to exclude from its annual production calculations any convertibles that comply with the automatic restraint requirements set forth in S4.1.2.1 of the standard. Section S4.1.3.1.2 of Standard No. 208 specifies the amount of passenger cars that must comply with the automatic restraint requirements of S4.1.2.1 shall be not less than 10 percent of either the manufacturer's average annual production between September 1, 1983, and August 31, 1986, or the manufacturer's annual production between September 1, 1985, and August 31, 1986. Under these provisions, Fiat elected to use the average annual production from September 1, 1983, through August 31, 1986, for its 1987 production year report. The reference to production encompasses all passenger cars produced by the manufacturer during the relevant time period. Thus, absent an exception to S4.1.3.1.2, a manufacturer may not exclude any of its cars in determining either average annual production or annual production.

For the period of September 1, 1986, to August 31, 1987, section S4.1.3.1.3 of Standard No. 208 provides a single exception from the requirement to include all of a manufacturer's cars in determining annual production. Under that exception, a manufacturer has the following option in calculating annual production:

A manufacturer may exclude convertibles which do not comply with the requirements of S4.1.2.1, when it is calculating its average annual production under S4.1.3.1.2(a) or its annual production under S4.1.3.1.2(b). (Emphasis added.)

The same single exception is set forth in section S4.1.3.2.3 for the September 1, 1987, to August 31, 1988 production year, and in section S4.1.3.3.3 for the September 1, 1988, to August 31, 1989 production year. This exception expressly permits manufacturers to exclude convertibles that do not comply with S4.1.2.1 from such calculations. However, this language does not permit manufacturers to exclude convertibles that comply with S4.1.2.1 from such calculations.

An old principle of legal interpretation is expressed in the maxim "expressio unius est exclusio alterius"; literally, the expression of one thing is the exclusion of another. Applying this principle to Standard No. 208, one would conclude that since the standard was drafted to provide one means of excluding convertibles from calculations of annual production, the standard does not allow any other means of excluding convertibles from those calculations. In other words, since the standard allows you to exclude convertibles that do not comply with S4.1.2.1 when calculating annual production, the absence of a similar provision for convertibles that comply with S4.1.2.1 means that complying convertibles cannot be excluded.

This interpretation does not raise any questions about the January 20 report's exclusion of all convertibles produced between September 1, 1983, and August 31, 1986, since your letter states that none of those convertibles complied with S4.1.2.1. However, this interpretation does mean that Fiat cannot exclude the 803 Alfa Romeo convertibles it reported as complying with S4.1.2.1 when making its 1988 production year calculations, as required by S4.1.3.2, if Fiat again elects to base its calculations on the average annual production of passenger cars during the preceding three years, as permitted by S4.1.3.2.2(a). Similarly, if Fiat elects to base its calculations on the actual production between September 1, 1987, and August 31, 1988, as permitted by S4.1.3.2.2(b), Fiat cannot exclude convertibles that comply with the requirements of S4.1.2.1.

In this letter, we have assumed that the Alfa Romeo convertibles that are equipped with automatic seat belts are certified as complying with the automatic restraint provisions of S4.1.2.1 of Standard No. 208. If this is not the case, then Fiat may not "count" those vehicles as complying with the automatic restraint phase-in requirements of S4.1.3.1.2 of Standard No. 208. See attached letter dated April 18, 1988 to Mr. Robert Munson of Ford Motor Company. Please notify Mr. George L. Parker, NHTSA's Associate Administrator for Enforcement, within 10 business days of your receipt of this letter, whether the Alfa Romeo automatic seat belts are certified as complying with the automatic restraint requirements of S4.1.2.1 of Standard No. 208.

If you have any further questions or need more information on this subject, please feel free to contact Steve Kratzke of my staff at this address or by telephone at (202) 366-2992.

Sincerely,

Erika Z. Jones Chief Counsel

ref:208#585 d:5/9/88

ID: 2872o

Mr. Dan Moore
Engineer - Car Design
Busch Transportation Services
5901 State Route 15
Belleville, IL 62223

Dear Mr. Moore:

This responds to your letter requesting information concerning a step-van design. You indicated that you propose to attach a step-van to a truck chassis with a Gross Vehicle Weight Rating of 10,000 pounds, and sought information about applicable Federal requirements. Specifically, you asked which of the Federal motor vehicle safety standards would apply to the finished step-van, what other National Highway Traffic Safety Administration regulations would apply, and which of the safety standards require actual testing of a prototype. While I apologize for the delay in responding to your requests, I hope that the following information is useful to you.

First, by way of background, the National Traffic and Motor Vehicle Safety Act (15 U.S.C. 1381 et seq.) requires every new motor vehicle sold in the United States to be certified as complying with all applicable Federal motor vehicle safety standards. The Safety Act specifies that it is the manufacturer itself that must certify that each of its vehicles complies with all applicable safety standards in effect on the date of manufacturer. Because of this statutory requirement, this agency does not "approve" any manufacturer's vehicles or offer assurances that the vehicles comply with the safety standards.

In certifying compliance with the safety standards, the manufacturer must do so consistent with the agency's definitions of motor vehicle types, found in 571.3 of Title 49 of the Code of Federal Regulations. From the information in your letter, it appears that your vehicle would be classified as a truck. (Our regulations define "truck" as a "motor vehicle, with motive power, except a trailer, designed primarily for the transportation of property or special purpose equipment.") I am enclosing with this letter a table which lists each standard that applies to each basic vehicle type. From this list you should be able to determine which safety standards apply to your vehicle. In addition, I am enclosing a fact sheet for new manufacturers, which describes all pertinent areas of regulation of motor vehicles, as well as a booklet for complying with regulations on importing motor vehicles. While you are not importing vehicles, the booklet does contain summary statements for each of the standards, which may be helpful to you.

You indicate that you will be attaching a step-van to a truck chassis, and thus request information concerning your responsibilities as a final stage manufacturer. The agency's requirements for final stage manufacturers are set forth in Parts 567 and 568 of the agency's regulations. I have enclosed copies of both of these regulations. Briefly, these requirements can be explained as follows.

Under 568.6, a final stage manufacturer must complete the vehicle in such a manner that it conforms to all safety standards for the applicable vehicle type (in this case we presume a truck) in effect on a date no earlier than the manufacturing date of the incomplete vehicle (in this case, the chassis), and no later than the date of completion of the final-stage manufacture (in this case, the attachment of the body to the chassis). In addition, you must affix a label to the completed vehicle in accordance with the certification requirements set forth in 567.5, Requirements For Manufacturers of Vehicles Manufactured in Two or More Stages.

To reduce the certification burdens on final stage manufacturers, NHTSA has imposed some regulatory requirements on incomplete vehicle manufacturers. Under 568.4, an incomplete vehicle manufacturer must list by number each standard that applies to its vehicle at the time of manufacture, and make one of the following three statements for each standard:

1. That the vehicle when completed will conform to the standard if no alterations are made in identified components; 2. That if the vehicle is completed under specific conditions of final manufacture set out in the compliance document, it will conform to the standard; or 3. That conformity with the standards is not substantially affected by the incomplete vehicle design, and the incomplete vehicle manufacturer makes no representation as to conformity with the standard. (49 CFR 568.4(a)(7))

I would like to point out one circumstance that may affect your certification as final stage manufacturer and reliance on representations made by the incomplete manufacturer. It is possible that, in the course of your attaching the step-van to the truck chassis, you will change the Gross Vehicle Weight Rating (GVWR) of the vehicle. If this occurs, you much certify that the vehicle complies with all applicable Federal motor vehicle safety standards at this new GVWR. Some of the standards which are likely to be affected by an increase in the GVWR are Standard No. 105, Hydraulic Brake Systems, and Standard No. 120, Tire Selection and Rims for Vehicles Other than Passenger Cars.

With regard to your question about actual field testing, the agency does not require that a manufacturer's certification be based on a specified number of tests, or any tests at all. Instead, we only require that the manufacturer's certification be made with the exercise of due care, as specified in the Safety Act. It is up to the individual manufacturer in the first instance to determine what data, test results, or other information it needs to enable it to certify that its vehicles comply with the safety standards.

I hope the information in this letter is useful. If you have any further questions, please feel free to contact us.

Sincerely,

Erika Z. Jones Chief Counsel

Enclosures ref:567#568 d:5/l3/88

ID: 2874o

Mr. Donald Friedman
President
Liability Research, Inc.
4448 Via Esperanza
Santa Barbara, CA 93110

Dear Mr. Friedman:

This is a response to your letter dated November 17, 1987, asking whether two child restraint systems you have designed comply with certain requirements of Federal motor vehicle safety standard 213, Child Restraint Systems. You call one system "Cradle Safe," and describe it as an inclined, rear-facing, deformable, vinyl-covered woodfiber board carrier designed to restrain new-born infants from 4.5 to 14 lbs. The second system you call "Premie Cradle," and describe it as a recumbent, rear-facing, deformable, vinyl-covered woodfiber board carrier designed for premature infants from 4 to 6 lbs.

Your letter assesses the performance attributes of these systems as follows:

"In an accident the baby is oriented and cushioned to avoid injury and ejection by a deformable, energy absorbing 'bed' and 'shell' without harnessing the infant.

The bed and its crushable extensions (wings) cause the infant to rotate and take acceleration forces through its back and limit those applied to the head. After rotation, the infant is cushioned by the collapsing bed."

You state your belief that both systems comply with applicable provisions of Standard 213, but ask for our comment because "the designs are innovative and make the applicability and interpretation of certain paragraphs of the standard not entirely obvious." To help the agency better understand your products and the methods you used to test performance, you requested that agency staff meet with you, and your colleague, Mr. David Shinn.

On April 12, 1988, a meeting was held with you, Mr. Shinn, and agency staff from the following offices: Chief Counsel, Enforcement, Plans and Policy, Research and Development, Rulemaking, and Traffic Safety Programs. At that meeting, you and Mr. Shinn presented a video-film showing two sled-tests of your cradle-safe restraint system, one with a NHTSA-specified, 17 pound dummy, and one with an EEC eight pound dummy. In the video film, your child restraint system broke apart in the 30 mph test with the 17 pound dummy, but appeared to maintain its structural integrity when tested with the eight pound dummy. You did not show a sled-test with your "Premie Cradle" product.

By a letter dated June 8, 1988, you informed this agency that you had performed tests of a "modified" Cradle-Safe restraint system, and that this system will contain the NHTSA-specified 17 pound dummy in simulated barrier-impact testing under Standard 213. You state further that a restraint system you call "One-ride" also will contain a 17 pound dummy in Standard 213 testing. (You did not address the "One-ride" restraint in your November 17, 1987, correspondence, nor did you present it during the April 12, 1988 meeting.) Your June 8 letter also references a letter of July 22, 1987, addressed to Mr. Val Radovich of this agency; a June 3, 1988 video tape showing a simulated barrier impact test of your Cradle-Safe seat with a 17 pound dummy; and submissions of patent documents in support of a patent application for your products.

As NHTSA staff understood from your November 17, 1987 letter, and the April 12, 1988 meeting, your principal question was whether you could test a Standard 213 child restraint system with an eight or 14 pound dummy (rather than the specified 17 pound dummy), if you intended to label the restraint as appropriate for children from 4.5 to 10 pounds. You briefly addressed the other matters raised in your November 17, letter, clarifying a reference to an "unspecified belt provided for use outside the vehicle and not required in (Standard 213) testing." You explained that the "belt" to which you refer is a two-piece, cloth wrap that anchors at either side of the restraint, and fastens over the child with a velcro attachment.

I shall respond to your comments in the order that you present them in your letter, also discussing new matters raised in the meeting, in the June 8, 1988 letter, and in your other submissions where appropriate. I will not discuss the patent materials because they are not relevant to a determination of whether your restraint systems comply with Standard 213. In responding to your comments, I assume that we are discussing only those child restraint systems designed for children weighing less than 20 pounds (infant restraints).

Your First Comment. Paragraph 5.1.1.a dealing with Child Restraint System Integrity specifies "no complete...and no partial separation" of surfaces. Our design is deformable and involves materials of 1/4" thickness which in deforming, tear slightly. However when torn these materials are not lacerating and not likely to come into contact with the infant.

Response. Paragraph S5.1.1(a) states that when a child restraint is tested as specified in the Standard, the system shall:

Exhibit no complete separation of any load bearing structural element and no partial separation exposing either surfaces with a radius of less than 1/4 inch or surfaces with protrusions greater than 3/8 inch above the immediate adjacent surrounding contactable surface of any structural element of the system.

If the system failure you describe as tearing of materials at the system surface does not result in a failure of the load-bearing structure of the system, then paragraph S5.1.1(a) is inapplicable. In 1978, NHTSA proposed adding this language to 213 as one of a number of amendments to the Standard that would upgrade performance requirements, improve performance criteria, and require dynamic testing of child restraint systems using anthropomorphic test dummies. (43 FR 21470, 21473, May 18, 1978.) In the preamble of that document, we stated that our objectives in promulgating the system integrity requirements were to prevent a child's excessive excursion or ejection from the system, and to ensure that the system does not fracture or separate in such a way as to harm the child. (43 FR 21470, 21473.)

To accomplish this objective, Standard 213 requires that in dynamic testing, any load-bearing, structural element of a child restraint system must not separate completely; and that any partial separation must not expose surfaces with sharp edges that may contact the child. Id. Your letter states that some materials at the surface of your system may tear during an impact. In promulgating S5.1.1(a), the agency intended to minimize dangers resulting from failures in the structural integrity of the system, rather than failures in the materials. The agency did not intend to preclude a manufacturer from designing some deformation into a child restraint system to improve the system's energy absorption performance.

Your Second Comment. Paragraph 5.2.3.2.b The system surface in contact with the infant's head shall be covered with slow recovery, energy absorbing material. Although our system surfaces are not covered, they are fabricated out of such material. The system surface in contact with the infants head (the bed) is 3/16" woodfiber separated by air from a similar material in the shell. The system complies with the requirement and when dynamically tested exhibits deformation much better than a 25% compression-deflection, but there is no appropriate ASTM Test Standard such as for open or closed cell foam.

Response. As I read your comment, you raise three issues which I shall address separately. The first is whether the material from which you fabricate your system can meet the S5.2.3.2(b) requirement that a child restraint system must be "covered" with slow recovery, energy absorbing material. The agency's long-standing position is that a given type of surface material is an acceptable "covering" if it is a flexible material that would meet the thickness and performance requirements for energy-absorbing padding set out in paragraphs (a) and (b) of S5.2.3.2. The surface needn't have a separate layer of energy-absorbing padding.

The second issue is whether 3/16 inch woodfiber is a sufficient thickness for a system surface. This thickness would not comply with S5.2.3.2(b) of Standard 213. That subparagraph requires thicknesses of at least 1/2 or 3/4 inch, depending on the material's compression-deflection performance as measured in the static testing specified in S6.3 of Standard 213.

You assert that the 3/16 inch thickness material used in your systems exceeds a 25% compression-deflection measurement in dynamic testing. In the preamble to the final rule amending Standard 213, NHTSA responded to commenters who suggested that specifying a minimum thickness for the infant restraint surface was design-restrictive. (44 FR 72131, 72135, December 13, 1979.) We explained in that document that we set these minimum thickness requirements because there was no available test device to measure the energy absorption properties of either the surface or underlying structure of an infant restraint in dynamic testing. Consequently, the agency specified "long-established static tests" of the surface material, and established minimum thickness requirements based on the results of those static tests. Therefore, a compression-deflection measurement derived from dynamic testing is not an acceptable test of compliance with paragraph S5.2.3.2.

The third issue is whether the compression-deflection measurement for this system must be derived from tests under one of the ASTM standards in S6.3, even though none of the ASTM titles expressly states that the test is for woodfiber, and all three procedures are for static tests. Paragraph S5.2.3.2(b) requires that when one tests the energy absorption properties of child restraint materials, those tests must be conducted under one of three ASTM static test procedures set out in paragraph S6.3 of Standard 213.

Your restraint systems are made of woodfiber. Woodfiber - or any material that meets the Standard's requirements - can be an acceptable substance out of which to fabricate a child restraint. As NHTSA stated in the final rule preamble cited earlier, the agency wishes to allow restraint manufacturers to use a wide range of materials, provided that the material exhibits acceptable energy absorption properties. You may use any ASTM title specified in paragraph S6.3 to test your surface material, and the material is acceptable if it displays the required energy absorption properties when tested under one of those titles.

Your Third Comment. Paragraph 5.4.3.1 "Each belt that is part of a child restraint system and that is designed to restrain a child using the system..." is interpreted to mean that a soft unspecified belt provided for use outside the vehicle and not required in testing, need not conform to this paragraph.

Response. As you explained in the April 12, meeting, the "belt" to which you refer is the cloth device described in the beginning of this letter. By its express terms, paragraph S5.4.3.1 is inapplicable to belts that are (1) not part of the child restraint system and (2) not designed to restrain a child using the system. On the other hand, I note that in the June 8, video tape, the narrative refers to a belt within the Cradle-Safe system as a belt for restraining the child. If you do intend any belt in the system to be used for restraining the child, then various provisions of paragraph S5.4.3, Belt Restraint, will apply, depending on the design configuration of the belt assembly.

In the preamble to the May 1978 proposal cited earlier in this letter, the agency expressed its continuing concern that child restraint system designs minimize the prospect of system misuse. (43 FR 21470, 21471.) If there are belts in any of your child restraint systems that you do not intend as restraints for the child, then I hope you will consider whether these additional belts unreasonably increase the risk that some users will mistake the additional belt assembly as a Standard 213 belt intended for use in restraining a child.

Your Fourth Comment. Paragraph 6. This paragraph requires the CRADLE SAFE to be tested with a paragraph 7 dummy (17 lb.) for which it was not designed and which cannot be physically accommodated. We would prefer to use available 7.8 lb. and/or 14 lb. non-specified dummies. The PREMIE CRADLE falls in the car bed "travel crib" category and does not require dynamic testing.

Response. Paragraph S7.1 of Standard 213 requires testing an infant restraint system with the 6-month-old dummy specified in 49 CFR 572.25. (An infant restraint system is one that is recommended "for use by children in a weight range that includes children weighing not more than 20 pounds.") That test device is 17.4 pounds. Because your child safety system meets the definition of infant restraint, it must be capable of meeting Standard 213 performance requirements when tested with the specified 17.4 pound dummy. If an infant restraint can not accommodate this test device, then it can not be certified as complying with Standard 213. I understand from your June 8, 1988, letter that the Cradle-Safe and One-Ride systems will accommodate the specified 17.4 pound dummy in Standard 213 testing. Further, your restraint systems must meet head excursions limits with the 17.4 pound dummy under paragraph S5.1.3.2, Rear-facing Child Restraint Systems.

The dummy specified in Part 572 is based on a simple design that represents a 6-month-old infant in dimensional, mass distribution, and dynamic response characteristics. NHTSA chose to use this test dummy after conducting extensive testing and evaluation of the dummy's responses. The testing, conducted by NHTSA and the Federal Aviation Administration (FAA), showed that the specified dummy provided a consistent and repeatable measure of the structural integrity and confinement properties of a child restraint system, and was superior to a previous test version. (43 FR 21490, May 18, 1978; 44 FR 76527, December 27, 1979.) Before we can sanction use of another device to test an infant restraint system, the agency would have to determine that the dummy is a reliable surrogate for measuring a system's performance in an actual crash. NHTSA can not now make that statement with respect to any unspecified dummy, instrumented or non-instrumented. The agency can make this kind of finding only through a rulemaking process.

Further, contrary to what you believe, infant car beds are subject to dynamic testing to ensure that the test dummy stays within the confines of the restraint system during impact. (Standard 213, S6.1.2.3.3.)

While you believe you have identified some potential problems with Standard 213, I am sure that you can appreciate the need to follow established procedures when considering any change to a safety standard. Following established practices helps ensure that child restraint systems which comply with Federal standards continue to offer satisfactory crash protection for children. The agency has scheduled two public meetings this summer in order to explore the need for changes to Standard 213. I enclose a copy of the notice announcing these meetings, and invite you to participate in the forum.

Based on the information you provided, it appears that you would have to modify your systems, or the agency would have to amend Standard 213 in order for you to be able to certify your child restraint system as satisfying all the applicable requirements of that Standard. Title 49 CFR Part 552, Petitions for Rulemaking, Defect, and Noncompliance Orders (copy enclosed) sets out a procedure for petitioning the agency to amend a safety standard, and you have a right to file such a petition. If NHTSA grants your petition, the agency would follow its normal rulemaking procedures to amend Standard 213.

If you have some further questions or need further information on this subject, please contact Joan Tilghman of my staff at our address, or telephone (202) 366-2992.

Sincerely,

Erika Z. Jones Chief Counsel

Enclosures ref:213 d:7/8/88

ID: 2874yy

William F. Canever, Esq.
Staff Attorney
Office of General Counsel
Ford Motor Company
The American Road
Dearborn, MI 48l2l

Dear Mr. Canever:

This responds to your letter concerning Ford's plan to allocate MY l986 light truck credits to cover MY l985 and MY l989 shortfalls. For each of those model years, manufacturers have the option of complying with separate 4x4 and 4x2 standards or a combined standard. Ford elected to comply with the separate standards for MY l985 and the combined standard for MY l986 and MY l989. The MY l986 credits are applied in the plan on a prorated basis to MY l985.

In response to your letter, we have reviewed Ford's credit allocation plan in light of 49 CFR 535.4(e). That section provides, among other things, that "(c)redits may not be applied between classes of light trucks, except as determined by the Administrator to account for changes made in the definitions of classes between model years." Since Ford's plan involves applying credits earned by exceeding the MY l986 combined standard to shortfalls incurred against the MY l985 separate 4x4 and 4x2 standards, we have considered whether the plan represents a cross-class application of credits that is prohibited by 535.4(e). As discussed below, we have concluded that Ford's allocation plan is not prohibited.

In your letter, you suggest that the regulatory scheme creates two methods of complying with light truck CAFE standards and not three classes of light trucks. You also state that the term "class" is nowhere applied to the combined light truck fleet. You conclude that there is no cross-class application of credits.

We do not agree with your suggested analysis. Section 535.3(a)(4) states that the term "class of light trucks" is used in accordance with the determinations in Part 533 of this chapter. Section 535.4(b) then indicates that credits are earned "whenever the average fuel economy for a class of light trucks manufactured by a manufacturer exceeds an applicable average fuel economy standard established in Part 533 of this chapter." The term "class" in Part 535 thus refers to each possible grouping of light trucks that is averaged together for determining compliance with CAFE standards. Looking at Part 533, there are, in fact, six classes of light trucks for the model years in question: (l) Combined captive import, (2) Combined other, (3) 2-wheel drive captive import, (4) 2-wheel drive other, (5) 4-wheel drive captive import, and (6) 4-wheel drive other.

While we do not agree with your suggested analysis, we believe that there is ambiguity with respect to how 535.4(e) applies to the factual sitation at issue. First, Ford's plan involves overlapping classes. Thus, while there is a degree of cross-class application of credits, it is limited. Second, NHTSA has never addressed in rulemaking the issue of whether manufacturers should, in effect, forfeit credits as a result of choosing particular compliance options for particular years. This situation is analagous in some respects to the issue of whether forfeiture of credits should occur where NHTSA changes the definitions of classes between model years. In that situation, the agency decided, based on its understanding of statutory intent, against forfeiture. Third, in a letter dated April 26, l988, NHTSA approved a Ford carryback plan for MY l985 light trucks which set forth Ford's proposed allocation methodology. While the agency did not expressly address that methodology in the letter approving the plan, Ford could have assumed that the agency considered the proposed allocation to be permissible.

Given the ambiguity surrounding this issue, NHTSA believes that it is appropriate to decide the issue, for now, in favor of the manufacturer. The agency believes that this is a type of ambiguity that should be resolved, for the future, by rulemaking. However, the issue will become moot, at least for the time being, since, beginning with the MY l992 light truck CAFE standards, NHTSA decided not to set optional separate two-wheel drive and four-wheel drive standards. Should the agency decide to issue optional CAFE standards at some future time, it will address this issue in rulemaking.

For now, NHTSA will treat situations where a manufacturer changes compliance options between model years in the same manner as situations where the agency changes the definitions of classes between model years. In both types of situations, NHTSA will follow the policy first announced in a November 8, 1979 notice of interpretation (44 FR 64943), and reaffirmed in a December 18, 1980 Federal Register notice (45 FR 83233), of attempting to assure that credits are applied to offset shortfalls on the same types of vehicles which generated the credits.

Ford's plan to apply, on a prorated basis, credits earned by exceeding the MY l986 combined standard to shortfalls incurred against the MY l985 separate 4x4 and 4x2 standards, is consistent with the examples set forth in the November l979 and December l980 notices. Ford's plan then to apply remaining MY l986 credits to its MY l989 shortfall, incurred against the MY l989 combined standard, does not involve any cross-class application of credits. I therefore conclude that Ford's allocation plan is not prohibited.

Sincerely,

Paul Jackson Rice Chief Counsel ref:535#502 d:3/l4/9l

ID: 2875yy

Loren Thomson, Esq.
Thomson & Weintraub
105 North Center Street
P.O. Box 3577
Bloomington, IL 61702-3577

Dear Mr. Thomson:

This responds to your letter to Dorothy Nakama of my staff in which you asked for an explanation of the responsibilities of installers and repairers of motor vehicle glazing. I apologize for the delay in this response. In a subsequent telephone conversation with Ms. Nakama, you asked that we provide a response to the following two questions:

1) Would it be a violation of Federal law if, after fixing a broken or cracked windshield, an aftermarket business still did not make the windshield comply with Federal Motor Vehicle Safety Standard No. 205?

2) What would be the consequences if an installer knowingly installed in a motor vehicle new glazing that did not comply with Standard No. 205?

Your questions are addressed below.

By way of background information, section 103 of the National Traffic and Motor Vehicle Safety Act of l966 (Safety Act, l5 U.S.C. l392) authorizes the National Highway Traffic Safety Administration (NHTSA) to issue safety standards for new motor vehicles and new motor vehicle equipment. One of the safety standards we have issued under this authority is Standard No. 205, Glazing Materials (49 CFR 571.205). Standard No. 205 establishes performance requirements for all windows (called "glazing" in the standard) in new motor vehicles and for all new replacement windows for motor vehicles.

Section 108(a)(1)(A) of the Safety Act (15 U.S.C. 1397(a)(1)(A)) specifies that no person may manufacture, import, sell, or introduce into interstate commerce any new vehicle or new replacement window that does not conform with the performance requirements of Standard No. 205. Pursuant to section 108(b)(1) of the Safety Act (15 U.S.C. 1397(b)(1)), this prohibition no longer applies to the motor vehicle after the vehicle is sold to a consumer. However, both before and after the first sale to a consumer, section 108(a)(2) of the Safety Act (15 U.S.C. 1397(a)(2)) provides that: "No manufacturer, distributor, dealer, or motor vehicle repair business shall knowingly render inoperative, in whole or in part, any device or element of design installed on or in a motor vehicle or item of motor vehicle equipment in compliance with an applicable Federal motor vehicle safety standard . . . ."

Your first question asked whether it would be a violation of Federal law if, after fixing a broken or cracked windshield (by repairing instead of replacing it), an aftermarket business still did not make the windshield comply with Federal Motor Vehicle Safety Standard No. 205. The answer depends upon whether or not the vehicle with the broken or cracked windshield has already been sold to a consumer.

If the vehicle has not yet been sold to a consumer, the "aftermarket business" would violate section 108(a)(1)(A) of the Safety Act if the vehicle with the repaired or replaced windshield did not comply with Standard No. 205 in all respects. As noted above, that section of the Safety Act prohibits any person from manufacturing, selling, importing, or introducing into interstate commerce any new vehicle that does not comply with Standard No. 205. Thus, even if a windshield is broken while a vehicle is being delivered from the factory to a new car dealer, the windshield that is in the new vehicle when it is delivered to the first purchaser must meet all requirements of Standard No. 205.

Once the vehicle has been sold to a first purchaser for purposes other than resale, any repairs or replacement of the windshield would not violate the "render inoperative" prohibition in the Safety Act. I have enclosed a September 3, l98l letter to the National Glass Dealers Association explaining that NHTSA does not consider repairing a damaged windshield to constitute rendering inoperative with respect to Standard No. 205, even if the repaired windshield does not meet the requirements of the standard once repaired. This is because the agency considers the object or event which damaged the windshield in the first place, not the repair shop, to have rendered the windshield inoperative with respect to Standard No. 205. Upon reconsideration, we reaffirm this interpretation.

Your second question asked about the consequences of an installer knowingly installing in a motor vehicle new glazing that did not comply with Standard No. 205. This would be a violation of section 108(a)(1)(A) of the Safety Act, because the installer would be introducing into interstate commerce an item of motor vehicle equipment (the windshield) that did not comply with the applicable safety standard. By so doing, the installer would be subject to a civil penalty of up to $1,000 for each time it installed a noncomplying windshield, per section 109 of the Safety Act (15 U.S.C. 1398).

I hope this information is helpful. If you have further questions or need additional information on this subject, please feel free to contact Dorothy Nakama of my staff at this address or by telephone at (202) 366-2992.

Sincerely,

Paul Jackson Rice Chief Counsel

Enclosure

/ref:205#VSA d:3/l4/9l

ID: 2876o

Mr. Joseph J. O'Brien
Chairman of the Board
ITD Industries, Inc.
2544 Terminal Drive South
St. Petersburg, FL 33712

Dear Mr. O'Brien:

This responds to your letters of January 29, 1988, and March 15, 1988, requesting a determination concerning the installation of one of your products in used vehicles. You enclosed a sample of a clear plastic film with a scratch-resistant coating on it and a pressure sensitive adhesive used to attach the plastic film to the glass. You asked whether it is "legal to retrofit existing cars of windshields with a 4 mil clear film with a scratch-resistant coating that meets the anti-lacerative windshield spec as far as scratch resistance.." I am pleased to have this opportunity to explain our statute and regulations to you.

The National Traffic and Motor Vehicle Safety Act of 1966 (Safety Act; 15 U.S.C. 1381 et seq.) authorizes this agency to issue safety standards for new motor vehicles and items of motor vehicle equipment. The Safety Act establishes a "self-certification" process in which each manufacturer is responsible for certifying that its products meet all applicable safety standards. Accordingly, the National Highway Traffic Safety Administration (NHTSA) does not approve motor vehicles or items of motor vehicle equipment.

We have issued Standard 205, Glazing Material (49 CFR 571.205), which establishes performance criteria for the types of glazing that may be used in various types and locations of motor vehicles. Your clear plastic film is not itself glazing material, so it does not have to comply with the requirements of Standard 205. Even though Standard 205 does not apply specifically to your product, there are several statutory provisions of which you should be aware.

Clear plastic film would be considered motor vehicle equipment, under section 102(4) of the Safety Act (15 U.S.C. 1391(4)). Thus, as a manufacturer of motor vehicle equipment, you would be subject to the requirements in sections 151-160 of the Safety Act (15 U.S.C. 1411-1420) concerning the recall and remedy of products with defects related to motor vehicle safety. You also should be aware of section 108(a)(2)(A) of the Safety Act (15 U.S.C. 1397(a)(2)(A)), which prohibits any manufacturer, dealer, distributor, or repair business from knowingly "rendering inoperative" any device or element of design installed on or in a motor vehicle or item of motor vehicle equipment in compliance with an applicable motor vehicle safety standard. Standard 205 specifies 14 performance elements with which glazing might not comply if your clear plastic film were installed. If the application of your film to windshields in used vehicles would render inoperative the glazing's compliance with these provisions of Standard 205, any manufacturer, dealer, distributor, or repair business that applied your film would be subject to a civil penalty of up to $1,000 for each application, as specified in section 109 of the Safety Act (15 U.S.C. 1398).

If the windshield continues to comply with the requirements of Standard 205 after application of this film, it may legally be installed by any business. Because of this potential liability, a repair shop or other business that installs glazing films may ask your company to provide some assurance that the motor vehicle windshield, as modified by the installation of your film, continues to meet the performance requirements set forth in Standard 205.

Please note that the "render inoperative" prohibition does not apply to individual vehicle owners. Federal law permits individual vehicle owners to install any materials on the glazing in their vehicles, regardless of the effect on compliance with Standard 205. However, the individual States govern the operational use of vehicles by their owners and it is within the authority of the States to preclude owners from installing certain films on their own vehicles.

I appreciate your interest in safety and your desire to ensure that your company complies with all Federal requirements. If you have any further questions or need additional information, please let me know.

Sincerely,

Erika Z. Jones Chief Counsel ref:205 d:7/11/88

ID: 2876yy

Mr. Delbert N. Pier
Legislation and Compliance Coordinator
Hyundai America Technical Center, Inc.
5075 Venture Drive
Ann Arbor, MI 48108

Dear Mr. Pier:

This is in reply to your letter of February 11, l99l, asking for an interpretation of Motor Vehicle Safety Standard No. l08.

With respect to a contemplated headlamp design using a standardized replaceable light source, you have asked "whether the bulb fixture can be rotated approximately 11 degrees", and have informed us that this will not change the "constants . . . or the relationship of the terminals to the constants."

Standard No. 108 does not specify the orientation of replaceable light sources in headlamps; the socket in the reflector may be in any orientation. In the configuration you present, for the bulb assembly, the terminals appear to remain perpendicular to the base and parallel within plus or minus 1.5 degrees as required in Figure 3-3. The rotation of the socket (in the reflector) of Figure 3-7, is not regulated and, therefore, is acceptable under Standard No. l08.

Sincerely,

Paul Jackson Rice Chief Counsel

ref:l08 d:3/l4/9l