ID: nht95-7.51

TYPE: INTERPRETATION-NHTSA

DATE: December 8, 1995

FROM: Samuel J. Dubbin -- Chief Counsel, NHTSA

TO: Mr.Peter F. Marthy -- New York State Automobile Dealers

TITLE: NONE

ATTACHMT: 9/19/95 letter from John Womack to David Seagren

TEXT: This is in response to your letter requesting the Chief Counsel of the National Highway Traffic Safety Administration (NHTSA) to explain the proper procedure to be followed in completing an odometer disclosure for a vehicle whose odometer had been previously been replaced and which has a sticker affixed to the inside left door jamb stating the actual mileage at the time the odometer was replaced. Specifically, you ask whether the transferee may enter on the disclosure statement a figure that is the total of the mileage on the new odometer and the mileage shown on the door sticker, and, if so whether the transferor can then certify that figure is the actual mileage the vehicle has traveled.

The reason that it is permissible to certify on the odometer disclosure that the total of the figure on the door sticker and the figure on the current odometer reading represents the actual mileage is that the combination of the sticker and the second odometer contains sufficient information from which the transferor can calculate with precision the total actual mileage on the vehicle. Under 49 U.S.C. @ 32704(a)(2), the door sticker must show the mileage at the time the odometer was replaced; and the transferor can ascertain the reading on the current odometer by visual examination. Of course, if the transferor has knowledge that either figure does not represent actual mileage, he or she may not certify that a total of the two figures is the actual mileage.

We consider this situation to be comparable to that in which a transferor converts an odometer registering kilometers to an odometer that registers miles, because in both situations, the transferor is able to arrive at the correct number of miles the vehicle has actually traveled simply by applying a mathematical formula to the numbers showing on the odometer. In a recent interpretation letter, the agency stated that a dealer which had converted a vehicle's odometer from kilometers to miles, and knew the kilometer reading before the conversion, could certify that the odometer reading in miles represented "actual mileage" because the dealer knew the number of kilometers before the change and could be accurately calculate the number of miles by multiplying that figure by 0.62. I have enclosed a copy of that letter for your information.

In answer to the question of whether or not the transferor should have the odometer replaced before the transfer with an odometer set to reflect the total number of miles on the vehicle, NHTSA believes that in the circumstances you describe, the transferor should replace the odometer with one that reflects the total miles the vehicle has travelled. Replacing the odometer with one that shows all the miles the vehicle has traveled on both odometers has the advantage of reducing the possibility that the transferee in this or subsequent transactions would be misled by the number of miles showing on the odometer, or confused by the difference between that figure and the total shown on the title. This approach does require removal of the door sticker to avoid further confusing a subsequent purchaser. However, it is not illegal to remove such a sticker when there is no intent to defraud. 49 U.S.C. @ 32704(b).

The alternative, which the agency believes is not desirable, would be to leave the present odometer in the car set at its present reding, and leave the sticker on the door jamb. The problem with this option is that the sticker does not provide as durable a record of mileage as the odometer. A sticker can fall off, fade or be removed, creating the potential for confusion when the odometer reading is compared with the information on the title. The same confusion is possible even if the sticker is present, because it might easily be overlooked.

I hope the information in this letter is helpful. If you have further questions concerning interpretation of the Federal odometer law and regulations, you may contact Eileen Leahy, an attorney on my staff, either at the above address or by telephone at (202) 366-5263. Other questions concerning the odometer fraud or the Federal odometer disclosure program may be directed to Mr. Richard Morse, Chief of NHTSA's Odometer Fraud Staff, at (202) 366-4761.

(Letter from Peter Marthy to NHTSA is not available.)

ID: nht95-7.52

TYPE: INTERPRETATION-NHTSA

DATE: December 8, 1995

FROM: Samuel J. Dubbin -- Chief Counsel, NHTSA

TO: Edward J. Googins -- Chief of Police, City of South Portland (Maine)

TITLE: NONE

ATTACHMT: 9/29/95 letter from Edward J. Googins to John Womack (occ 11258)

TEXT: This responds to your question whether passenger seat belts must be installed on a 1982 school bus with a gross vehicle weight rating (GVWR) of 20,200 pounds. The answer is no, NHTSA's regulations do not call for the belt systems.

In a telephone conversation with Dorothy Nakama of my staff, you stated that the subject of your letter, a 1982 International - Model # S1700 bus with a GVWR of 20,200 pounds, was manufactured as a school bus.

Federal Motor Vehicle Safety Standard No. 222, School bus passenger seating and crash protection, establishes occupant protection requirements for school bus passenger seating and restraining barriers. Standard No. 222 did not in 1982, and does not now, specify that newly manufactured school buses with a GVWR of 20,200 pounds have passenger seat belt assemblies. Thus, under Standard No. 222, your 1982 school bus need not have seat belt assemblies for passengers.

However, please note that the States are free to require seat belts in large school buses used to transport students. Enclosed is a February 14, 1992 letter to Mr. Michael A. Martin of the Maine Bureau of Highway Safety, addressing the relationship between Federal school bus safety standards and state law. Note that on page two, NHTSA explains that a State may require seat belt installation for school buses procured by the State, as long as Federal compartmentalization requirements are not compromised.

I hope this information is helpful. If you need any further information, please contact Dorothy Nakama of my staff at (202) 366-2992.

ID: nht95-7.53

TYPE: INTERPRETATION-NHTSA

DATE: December 8, 1995

FROM: Samuel J. Dubbin -- Chief Counsel, NHTSA

TO: Alison Vredenburgh -- Vice President Research and Development, Error Analysis, Inc.

TITLE: NONE

ATTACHMT: 9/18/95 letter from Alison Vredenburgh to Kenneth Hardie

TEXT: This is in reply to your letter of September 18, 1995, to Kenneth Hardie of this agency, with respect to the Motorcycle Conspicuity Enhancement System (the "System") described in your letter. You understand "that this system may only be used during daylight hours and may not affect the headlight", and you ask if there are any other regulations of which you should be aware.

We understand that the System is still under development, and that the intent is to offer it both as original and aftermarket equipment. Two Systems will be tested, at a flash rate of 60 to 80 per minute, one at an intensity of 35,000 candlepower, and the other at 50,000 candlepower. One System will have three bulbs, and another, four. Each System will be activated when the headlamp is on. We note that motorcycle headlamps are wired to be activated when the ignition is on because many States require that headlamps be operating at all times.

As you know, each motorcycle must be manufactured and certified to conform to all applicable Federal motor vehicle safety standards, including Standard No. 108 Lamps, Reflective Devices, and Associated Equipment. Standard No. 108 prescribes no requirements for supplemental equipment such as the System. However, additional lighting equipment may not be installed by the manufacturer or dealer before sale if the supplemental equipment impairs the effectiveness of lighting equipment required by Standard No. 108 (paragraph S5.1.3).

You are therefore correct when you say that the System "may not affect the headlamp." One way in which the System could impair the effectiveness of the headlamp is if it continued to operate at a time when the headlamp is required to provide sufficient illumination of the roadway (as you recognize in your comment that "the system may only be used during daylight hours"). You have not described the method by which the System will be deactivated. We believe that this should not be a manual operation, left to the discretion of the motorcycle operator. In establishing the specifications that allow optional installation of modulating headlamp systems for improving the conspicuity of motorcycles, this agency requires that they be equipped with a sensor that will deactivate the modulation when a certain low ambient light level is reached. Also, the modulation rate is regulated to prevent seizures in susceptible individuals. I enclose a copy of paragraph S5.6 of Standard No. 108 which discusses these light levels.

The System must also not impair the effectiveness of the motorcycle's front turn signals. That is to say, it must not mask the signal or detract from its detectability by oncoming drivers. Whether this might occur will depend upon the color and brightness of the System and its proximity to the turn signal lamp.

If a motorcycle manufacturer is satisfied that the installation of the System on its product would be permissible under S5.1.3, then it may certify that the motorcycle conforms to all applicable Federal motor vehicle safety standards. NHTSA will not question a determination of non-impairment unless it appears to be clearly erroneous.

Satisfaction of Federal new vehicle requirements means that the System is acceptable for sale in the aftermarket under Federal regulations. However, supplementary lighting equipment, whether original or aftermarket, that is not specifically covered by Standard No. 108 remains subject to regulation by the States. We note that many States have vehicle equipment and use regulations regarding auxiliary amber flashing lamps, Many States also prohibit blue as a color for lamps, reserving it for police, fire, and emergency vehicles. We are unable to advise you on the specifics of State laws, and urge you to consult the American Association of Motor Vehicle Administrators, 4600 Wilson Boulevard, Arlington, Va. 22203.

If you have any further questions, you may refer them to Taylor Vinson of this Office (202-366-5263).

ID: nht95-7.54

TYPE: INTERPRETATION-NHTSA

DATE: December 8, 1995

FROM: Samuel J. Dubbin -- Chief Counsel, NHTSA

TO: Ken Van Sciver -- Sciver Corporation

TITLE: NONE

ATTACHMT: 10/3/95 letter from Ken Van Sciver to NHTSA Chief Counsel (OCC 11293)

TEXT: This responds to your letter of October 3, 1995 to this office requesting information on any safety standards applicable to the Auto Bib, a new product you are developing and marketing. From the promotional material you furnished with your letter, your Auto Bib can be described as a portable cover, of Naugahyde fabric, that clips between the window and door molding of a vehicle's door. The Auto Bib unrolls downward to cover the door, and is intended to protect the door's upholstery from damage caused by children, pets, and the sun.

By way of background information, the National Highway Traffic Safety Administration (NHTSA) has the statutory authority to issue Federal motor vehicle safety standards (FMVSS) applicable to new motor vehicles and new items of motor vehicle. Federal law establishes a self-certification system under which motor vehicle and equipment manufacturers themselves certify that their products comply with all applicable FMVSSs. NHTSA enforces compliance with the standards by randomly purchasing and testing motor vehicles and equipment. NHTSA also investigates safety-related defects. If a vehicle or item of equipment is found not to comply with applicable standards or is found to have a safety defect, the manufacturer is responsible for remedying the noncompliance or defect at no charge to the customer. NHTSA neither tests, approves, disapproves, endorses, or grants clearances for products prior to their introduction into the retail market.

Turning now to the Auto Bib, NHTSA would classify it as an item of motor vehicle equipment, defined in 49 U.S. Code (U.S.C.), @ 30102(7)(B) as any "part or component manufactured or sold for replacement or improvement of a system, part, or component, or as an accessory or addition to a motor vehicle." Specifically, the Auto Bib is an accessory if it meets two tests:

a. A substantial portion of its expected uses are related to the operation or maintenance of motor vehicles; and

b. It is purchased or otherwise acquired, and principally used, by ordinary users of motor vehicles.

After reviewing the product literature you enclosed with your letter, we conclude that the Auto Bib is an accessory. The Auto Bib was designed and is being marketed with the expectation that a substantial portion of its expected use will be in motor vehicles. Even its name indicates its intended purpose. Secondly, the promotional literature makes it clear that the Auto Bib is intended to be purchased and principally used by ordinary users of motor vehicles, as distinguished from professional vehicle repair businesses, since its stated purpose is to preserve motor vehicle upholstery from damage by children, pets, and the sun.

While the Auto Bib is a motor vehicle accessory, NHTSA has not issued any FMVSSs establishing performance standards applicable to this product. However, you as the manufacturer are subject to the requirements of 49 U.S.C. @@ 30116 - 30121 which set forth the recall and remedy procedures for products with defects related to motor vehicle safety. As noted earlier, in the event that you or NHTSA determines that the product contains a safety-related defect, you would be responsible for notifying purchasers of the defective equipment and for remedying the problem free of charge.

You asked about state or local requirements that may apply to your product. NHTSA has no information on such requirements. You may, however, be able to obtain some relevant information in that regard from:

Automotive Manufacturers Equipment Compliance Agency, Inc. 1090 Vermont Avenue, N.W., Suite 1200 Washington, DC 20005 (202) 898-0145; Fax (202) 898-0148

I hope this information is helpful to you. Should you have any further questions or need any additional information, please feel free to contact Mr. Myers of my staff at this address or at (202) 366-2992.

ID: nht95-7.55

TYPE: INTERPRETATION-NHTSA

DATE: December 8, 1995

FROM: Samuel J. Dubbin -- Chief Counsel, NHTSA

TO: Patrick Holmes

TITLE: NONE

ATTACHMT: 10/01/95 letter (est) from Patrick Holmes to whom it may concern (occ 11357)

TEXT: This responds to your request for an interpretation whether, if you manufacture a motorcycle helmet for personal use, and ensure that your helmet meets Federal Motor Vehicle Safety Standard (FMVSS) No. 218 Motorcycle helmets, you may certify the helmet. Subject to qualifications explained below, the answer is yes.

NHTSA is authorized under 49 U.S.C. Chapter 301 Motor Vehicle Safety to issue FMVSSs for new motor vehicles and new items of motor vehicle equipment. Among the FMVSSs is Standard No. 218. In 49 U.S.C. section 30115, a self-certification system is established whereby the vehicle or equipment manufacturer is responsible for exercising "reasonable care" in certifying the product will, if tested as specified in the applicable FMVSSs, meet the safety requirements in the standards applicable to the product. Section 30115 states: "A person may not issue the certificate if, in exercising reasonable care, the person has reason to know the certificate is false or misleading in a material respect."

I have enclosed an information sheet that briefly describes the responsibilities for manufacturers of new vehicles and new items of motor vehicle equipment. Please note the discussion on page two concerning manufacturers' responsibilities to ensure that their products are free of safety-related defects. In addition, as noted on page two, Part 566 of our regulations requires each manufacturer of motor vehicle equipment to which an FMVSS applies (e.g., motorcycle helmets) to submit identifying information to NHTSA, with a description of the items they produce. I have enclosed a copy of Part 566 and of Standard No. 218 for your information.

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

Enclosures omitted.

ID: nht95-7.56

TYPE: INTERPRETATION-NHTSA

DATE: December 11, 1995

FROM: Samuel J. Dubbin -- Chief Counsel, NHTSA

TO: Dorothy Jean Arnold, -- M.D.

TITLE: NONE

ATTACHMT: 9/01/95 (est.) letter from Dorothy Jean Arnold, M.D., to Safety Administration

TEXT: This responds to your letter asking whether the air bags in your car can be disconnected. You explained that you are physically impaired by the effects of osteomyelitis, a disease of the bones; cannot use a seatbelt with comfort; and were "granted dispensation from such usage several years ago." In a telephone conversation with Richard Reed of this agency, you indicated that you are 74 years old 45 feets three inches tall, and must sit close to the steering wheel because of your medical condition.

As explained below, our answer is that NHTSA will not institute enforcement proceedings against a repair business that disconnects an air bag on your vehicle to accommodate your condition.

Standard No. 208, Occupant Crash Protect [Illegible Word] requires that cars be equipped with automatic crash protection at the front outboard seating positions. The air bags in your car were installed as one means of complying with that requirement. The removal or deactivaxion of one of those air bags by a vehicle dealer is governed by a provision of Federal law, 49 U.S.C. @ 30122. The section provides that provi

A manufacturer, distributor, dealer, or motor vehicle repair business may not knowingly make inoperative any part of a device or element of design installed on or in a motor vehicle or motor vehicle equipment in compliance with an applicable motor vehicle safety standard.

However, in limited situations in which a vehicle must be modified to accommodate the needs of a person with a particular disability or a person's special medical needs, NHTSA has in the past stated that it would consider violations of the "make inoperative" prohibition as purely technical ones justified by public need, and that it would not institute enforcement proceedings.

I would like to caution you that both safety belts and air bags are very important items of safety equipment. Safety belts are the primary means of occupants restraint, and work in all types of crashes. NHTSA estimates that in 1994, safety belts saved almost 9,200 lives and prevented more than 211,000 moderate to critical injuries. The combination of wearing safety belts and having an air bag installed at a seating position provides vehicle occupants with maximum safety protection in all types of crashes. Also, air bags are designed to offer some protection even when safety belts are not used. Since 1987, air bags are estimated to have saved 911 lives.

NHTSA strongly encourages vehicle occupants to wear their safety belts, since we are concerned about the much higher safety risk faced by unbelted occupants. We understand, however, that you cannot wear your safety belt for medical reasons, and that you are concerned about a possible safety risk from the air bag in such a situation.

While air bags have an impressive overall performance record and are designed to provide some protection even for unbelted occupants, NHTSA has become aware of situations in which current air bags have undesired side effects. These include situations in which an air bag appears to have contributed to serious injuries and even death to vehicle occupants, in minor-to-moderate severity crashes. Information indicates that an air bag might pose a risk of serious injury to unrestrained small statured and/or older people, in particular. I note that NHTSA has recently issued a request for comments (copy enclosed) concerning the agency's actions to minimize the adverse side effects of air bags and to invite the public to share information and views with the agency.

Since your disability prevents you from wearing your safety belt, and given your age and size, the disability places you in a situation where there may be a risk of serious injury from the air bag. While this particular risk can be addressed by disconnecting the air bag, there are trade-offs: Disconnecting the air bag subjects you to a higher risk in crashes, especially higher-speed crashes, where the air bag would provide protection. We urge you to carefully weigh the trade-offs in making your decision.

If you decide that the risk to you from the air bag offsets the potentially life-saving benefits of the air bag, and you wish to have your air bag deactivated, we would regard the deactivation a purely technical violation of the "make inoperative" prohibition justified by public need. Accordingly, we would not institute enforcement proceedings against any person listed in section 30122 who deactivated the air bag. I would recommend that the manufacturer of the vehicle and/or air bag be consulted on the safest way to disconnect the air bag. I also note that the air bag should only be disconnected from a position where you would be seated. In addition, I strongly encourage you to ensure that every person in your vehicle who can use his or her safety belt does so.

I want to add a caution. The purpose of the "make inoperative" prohibition is to ensure, to the greatest degree possible, current and subsequent owners and users of your vehicle are not deprived of the maximum protection afforded by the vehicle as newly manufactured. Accordingly, if you were to sell your vehicle later, we urge that the air bag be reactivated for the subsequent driver.

I hope that this letter resolves your problem. If you have any other questions, please contact Edward Glancy of my staff at this address or by phone at (202) 366-2992.

ID: nht95-7.57

TYPE: INTERPRETATION-NHTSA

DATE: December 11, 1995

FROM: Samuel J. Dubbin -- Chief Counsel, NHTSA

TO: Mr. William Shapiro -- Manager, Regulatory Compliance and Consumer Affairs, Volvo Cars of North America, Inc.

TITLE: NONE

ATTACHMT: 10/16/95 letter from William Shapiro to John Womack (occ 11298)

TEXT: This is in response to your letter of October 16, 1995, to John Womack, requesting that we confirm your interpretation of certain provisions in the Bumper Standard, 49 CFR Part 581. As described in your letter, Volvo is contemplating attaching a device to the bumper face bar of its vehicles that will be used for purposes other than mitigating the effects of a low speed collision. In a telephone conversation on November 22, 1995, Steven Kraitz of your Office informed Coleman Sachs of my staff that the device will be some form of radar equipment, and that Volvo has yet to decide whether it will be offered as optional or as standard equipment on its vehicles.

You are of the opinion that even though this device could be damaged or destroyed in a low speed collision, the vehicles on which it is installed will still be in compliance with the Bumper Standard because it is not one of the components or systems that are specified in 49 CFR 581.5(c)(1) through (6) as having to remain operational after Bumper Standard compliance testing is performed. You further characterize this device as being "part of the bumper face bar" for the purposes of 49 CFR 581.5(c)(8). That section provides:

The exterior surfaces shall have no separations of surface materials, paint, polymeric coatings, or other covering materials from the surface to which they are bonded, and no permanent deviations from their original contours . . . except where such damage occurs to the bumper face bar and the components and associated fasteners that directly attach the bumper face bar to the chassis frame.

We disagree with your opinion that the radar device that Volvo is considering for its vehicles is either an integral part of the bumper face bar, or a component that is needed to attach the bumper face bar to the chassis frame. Consequently, the device would not fall within the exception in 49 CFR 581.5(c)(8) quoted above.

Conditions for Bumper Standard compliance tests are specified at 49 CFR 581.6. Paragraph (a)(5) of that section states that "[running] lights, fog lamps, and equipment mounted on the bumper face bar are removed from the vehicle if they are optional equipment." Therefore, if the radar device is to be offered as optional equipment, it must be removed from the test vehicle before Bumper Standard compliance testing is performed. In this circumstance, the vehicle's compliance with the Bumper Standard would not be affected if the device were unable to withstand low speed collisions. If the device is to be offered as standard equipment, however, it must remain on the vehicle while Bumper Standard compliance tests are performed, and must withstand those tests free of damage to meet the protective criteria specified in 49 CFR 581.5(c)(8).

If you have any further questions regarding this issue, feel free to contact Mr. Sachs at the above address, or by telephone at (202) 366-5238.

ID: nht95-7.58

TYPE: INTERPRETATION-NHTSA

DATE: December 11, 1995

FROM: Samuel J. Dubbin -- Chief Counsel, NHTSA

TO: Carrie Stabile

TITLE: NONE

ATTACHMT: 8/29/95 letter from Carrie Stabile and James V. Stabile III to NHTSA Office of Chief Council

TEXT: This responds to the letter from you and your brother James Stabile regarding a "Vehicle Illuminated Warning System" that you wish to market for school buses. You have asked for its "review with regards to Vehicle Safety Standards."

While your cover letter did not describe your Warning System in detail, it appears from your enclosed sketches that the system consists of panels centered in the front and rear headers through which the bus operator may provide certain illuminated messages to other drivers. These are "School Bus" (in green), "Slow Down" (yellow), and "Do Not Pass" (red).

You indicated to Dee Fujita of my staff that you might design the system such that the messages are automatically activated in certain circumstances. You are considering designing the system such that the "School Bus" message would be illuminated while the vehicle is moving, "Slow Down" would show when the school bus driver brakes, and "Do Not Pass" when the vehicle's red lamps are activated. The message board is rimmed by small yellow and red lamps. The small yellow lamps would flash with the Slow Down message and the small red lamps would flash with "Do Not Pass."

The short answer is there is no Federal motor vehicle safety standard (FMVSS) that specifies requirements for your Warning System. However, as explained below, your system is regarded as supplementary lighting equipment, which subjects it to certain requirements. Further, the States have the authority to regulate the use of school buses, including how the vehicles are identified. Thus, States might have requirements affecting whether your message board is permitted on school buses operating in each jurisdiction.

By way of background, the National Highway Traffic Safety Administration (NHTSA) is authorized by Congress (49 U.S.C. Chapter 301) to issue FMVSSs that set performance requirements for new motor vehicles and new items of equipment. n1 NHTSA has used this authority to issue Standard No. 108, Lamps, Reflective Devices and Associated Equipment. NHTSA does not approve motor vehicles or motor vehicle equipment, nor do we endorse any commercial products. Instead, our statute establishes a "self-certification" process under which each manufacturer is responsible for certifying that its products meet all applicable safety standards. The following represents our opinion based on our understanding of the information you provided.

n1 NHTSA also has the authority to investigate safety-related defects. Manufacturers of motor vehicles and items of motor vehicle equipment (such as your Warning System) must ensure that their products are free of safety-related defects.

To answer your letter, we will first discuss the Federal lighting requirements that apply to your system generally. Following that, we will discuss specific issues about your system.

General lighting requirements

In addition to the lighting equipment required for ordinary buses, paragraph S4.1.4 of Standard No. 108 requires school buses to be equipped with a system of four red signal lamps, or four red and four amber signal lamps, designed to conform to SAE Standard J887 School Bus Red Signal Lamps, July 1964, and installed at the top and evenly spaced from the vertical centerline of the bus. These lamps must flash alternately at a rate of 60-120 cycles per minute. All other required lighting equipment, except for turn signals and hazard warning signals, must be steady-burning.

Supplementary lighting equipment is permissible under the following conditions. If your Warning System is to be installed by a manufacturer or dealer before the first sale and delivery of the school bus, the Warning System must not impair the effectiveness of the lighting equipment required by Standard No. 108 including the signal system mentioned above, that is to say, it cannot replace required equipment, or modify its performance or detract from the "message" that the required lamp is intended to impart. Manufacturers of motor vehicles are required to affix a certification to the vehicle that it complies with all applicable Federal motor vehicle safety standards, and the determination of impairment is to be made by the manufacturer at that time. A dealer installing the Warning System is regarded as an alterer, and required to affix its own certification that the vehicle as altered continues to conform; at that point, the dealer installing the system would make its determination that impairment did not exist. NHTSA will not contest a determination unless it is clearly erroneous.

If the Warning System is to be installed on school buses already delivered and in use, there is no Federal requirement that the person adding the equipment certify the vehicle. However, there is a similar obligation to ensure continuing compliance. If the person is a manufacturer, dealer, distributor, or motor vehicle repair business, under a statute that we administer, that person must ensure that installation and use of the Warning System will not "make inoperative" any of the required lighting equipment including the school bus signal lamp system. We regard "making inoperative" in this context the equivalent of "impairment" discussed in the previous paragraph.

The statute permits an exception to the above: modifications of any nature made by the school bus owner itself in its own repair facilities are not prohibited by our statute.

Specific issues concerning "impairment"

As noted above, the Warning System may be installed on new school buses if it does not impair the effectiveness of the lighting equipment required by Standard No. 108. "Impairment" can occur in different ways. One way could be by interfering with the performance of required lamp system, including the required school bus warning lamps or the brake warning lamps. The following are examples of interference: * Your system could not replace the identification lamps required by Standard No. 108.

* It must not cause the yellow-red warning system to flash sequentially, rather than alternately as required by the standard.

* The Warning System must not cause the flashing of lights that must be steady-burning (e.g., the stop and taillamps, which, under Standard No. 108, must be steady-burning at all times). Your system appears to have a deceleration warning system operating through either original equipment lamps or supplementary ones. The lamps for the system must be steady-burning, and cannot flash. For the same reason, the little lights around the message board must not flash with the "Slow Down" and "Do Not Pass" messages.

"Impairment" can also occur when an operator is distracted from the driving task, even momentarily. For this reason, we have discouraged the concept of message boards over the years. However, this is the first time we have been asked to consider it in the context of school bus lighting. We find that there are considerations that are relevant to the operation of school buses, that do not apply to other vehicles. A driver behind a school bus, or approaching from an opposite direction, is more likely to be cautious because of the awareness of the importance of child safety and the penalties involved in infractions of traffic laws relating to school buses. There is less possibility of impairment existing with advisories relating directly to the actions other drivers are presumably anticipating when in the vicinity of a school bus. With this in mind, we believe your message board, which sends only three messages -- an identification of the vehicle as "School Bus" and advisories of "Slow Down" and "Do Not Pass" -- generally would be permitted under Standard No. 108.

There are a number of specific features about your message board, however, that could distract a driver, and thus constitute "impairment." These are as follows:

* Your sketch indicates that the lamps used for the "School Bus" message would be green. Standard No. 108 restricts the color of required exterior lights to red, amber, and white, the former two of which are associated with caution. Green is not used as an exterior lighting color because it is the recognized signal to proceed rather than to warn. We believe that use of the color green has the potential to create a measure of confusion rather than caution, thereby affecting the effectiveness of the mandatory lighting equipment.

* Another feature that could distract a driver is the message "Slow Down," which automatically illuminates anytime the school bus driver brakes. We believe this could be confusing to drivers in other lanes and oncoming vehicles, since it may lead some drivers to believe the school bus is preparing to stop, when the bus is not. A less confusing feature would be if the Slow Down message is illuminated only when the amber school bus warning lamps flash, and not each time the driver brakes.

State requirements Because your Warning System is not a Federally required item of lighting equipment, its use is also subject to regulation under the laws of the States in which it may be used. Each State regulates the use of school buses in its highway safety programs, setting requirements for pupil transportation safety, including the identification of school buses. NHTSA has issued a number of Highway Safety Program Guidelines for States to use in establishing their highway safety programs. Guideline No. 17, "Pupil Transportation Safety" (copy enclosed) has recommendation that might affect your message board, if the State has decided to adopt the recommendation as State law. The Guideline recommends that school buses should, among other things,

Be identified with the words "School Bus" printed in letters not less than eight inches high, located between the warning signal lamps as high as possible without impairing visibility of the lettering from both front and rear, and have no other lettering on the front or rear of the vehicle, except as required by Federal Motor Vehicle Safety Standards (FMVSS), 49 CFR part 571. (Section IV.B.1.a.)

Depending on the requirements a State has adopted for identifying school buses, the State might limit how your message board displays the words "School Bus," and the "Slow Down" and "Do Not Pass" messages. If you have questions about State law requirements, we suggest you consult the American Association of Motor Vehicle Administrators for an opinion. Its address is 4600 Wilson Boulevard, Arlington, Va. 22203.

We appreciate the interest that you and your brother have shown in improving the safety of school children. If you have any further questions, you may call Dee Fujita (202-366-2992) or Taylor Vinson of this office (202-366-5263).

ID: nht95-7.59

TYPE: INTERPRETATION-NHTSA

DATE: December 12, 1995

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

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

TITLE: FMVSS 210 Compliance - 1995 Cirrus

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

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

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

As you know, the non-compliance found by OVSC staff in July was the result of a laboratory test that placed the pelvic body block 4 inches forward from the seat back. Our tests are conducted with the block positioned against the seat back. We advised OVSC staff in September that this alteration in the pelvic body block location significantly altered the stresses imposed on the rear seat anchorages as compared with the stresses imposed when the body block is positioned against the seat back. Since neither the procedures specified in the standard nor the published laboratory test protocol specify the location of the body block, our compliance test represents a valid demonstration of compliance with the standard and should be accepted by OVSC.

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

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

Attachments (2)

Enclosures

SEAT BELT ANCHORAGE (Summary Report)

Test Information

Test Number: 21095137 Test Type: FMVSS 210 Dev Date: 12/8/95 Time: 13:40:50 Technician/Engineer G. D. Redd/H. Farrah Model Year & Body: 1995 JA Body Component Description: 3-Passenger Rear Bench Seat; VIN # 1B3EJ56C1TN100005 Comments: Weldnuts For O/B Anchors, Anchor Brkts Str. Rrwd., Trailing Arm Brkts.

Installed, Lap Belt Body Block Against Seatbacks, Lab Seat Belts Were Used. Units: English Sample Rate (Hz): 50 Sampling Duration (sec): 70

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

(Charts omitted.)

MEMORANDUM

December 13, 1995

TO: Kenneth Weinstein, Esq.

FROM: Lewis Goldfarb, Esq.

RE: FMVSS 210 Compliance

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

A. The Chrysler Cirrus LX Complies with FMVSS 210.

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

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

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

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

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

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

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

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

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

Chrysler Corporation v. Department of Transportation, 472 F.2d 659, 675-676 (6th Cir. 1972) (two footnotes omitted) (quotation in first paragraph is from the House Report accompanying enactment of the National Traffic and Motor Vehicle Safety Act, H.R. 1776, 89th Cong. 2d Sess. 1966 at p. 16).

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

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

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

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

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

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

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

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

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

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

C. Conclusion.

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

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

ID: nht95-7.6

TYPE: INTERPRETATION-NHTSA

DATE: September 29, 1995

FROM: Guy Dorleans -- International Regulatory Affairs Manager, Valeo

TO: Chief Counsel, NHTSA

TITLE: NONE

ATTACHMT: Attached to 11/09/95 letter from Samuel J. Dubbin to Guy Dorleans (Std. 108)

TEXT: Dear Sir:

The use of light-emitting diodes brings technical solutions to almost all the styling trends, and allows to obtain an even patch luminance on the whole extension of the light-emitting surfaces. The sketches hereunder examplify a new area of freedom for rear end lighting:

Functions: Tail, Stop, rear turn signal

[ILLUSTRATION OMITTED -- SEE ORIGINAL SOURCE]

All the LEDs are red in color. The internal wiring is such that failure of one LED does not switch off a complete array of diodes: if we suppose that the system incorporates a total 32 diodes. The diodes will still be in operation if a single diode fails. In cases C, C', D and D' [ILLEGIBLE WORD], Standard 108 revised as of October 1, 1994 shall consequently apply in its relevant figure 1b for one lighted section.

Case A: During daytime, when neither the service brake nor the turn signal is operated, all the LEDs are off and no lighting function is used.

Case B: At night, the tail lamp is on, but neither the service brake nor the turn signal is operated. The whole light-emitting surface is slightly glooming, enough to fulfill the optical specifications of Standard 108 for tail lamps. All the diodes are energized at low-level intensity.

Case C: When braking at night, the current in the diodes is increased, so that the sum of the photometrics of the stoplamp and the tail lamp is fulfilled. The whole light-emitting surface is glooming. All the diodes are energized at full intensity. At point HV, the light output is at least fivefold bigger than in case B.

Case C': When braking during the day, the current in the diodes is increased, so that the photometrics of the stoplamp is fulfilled. The shole light-emitting surface is glooming. All the diodes are energized at full intensity. At point HV, the light output is at lease fivefold bigger than in case B.

Case D: When changing direction at night, the whole light-emitting surface is glooming. All the diodes are energized at full intensity during the on-period of the turn signal. The sum of the photometrics of the rear turn signal lamp and the tail lamp is then fulfilled and at point HV, the light output is at least fivefold bigger than in case B. During of off-period of the turn signal, the diodes receive the same intensity as in case B, which corresponds to tail lamp only.

Case D': When changing direction during the day, the diodes are energized at full intensity during the one-period of the turn signal and then the whole light-emitting surface is glooming. The photometrics of the rear turn signal lamp is then fulfilled. During the off-period of the turn signal, the diodes are not energized.

We hereby ask confirmation that this new lighting combination is correct.

Best Regards.