ID: 18561graco.a

Steve Gerhart, Product Compliance Engineer
Graco Children's Products Inc.
51 S. Pine St.
P.O. Box 100
Elverson, PA 19520

Dear Mr. Gerhart:

This responds to your letter to the National Highway Traffic Safety Administration (NHTSA) asking several questions about S5.4.3.2 of Federal Motor Vehicle Safety Standard No. 213, "Child Restraint Systems." I apologize for the delay in our reply.

Section S5.4.3.2 states, in pertinent part:

S5.4.3.2 Direct restraint. Except for a child restraint system whose mass is less than 4.4 kg, . . . each Type I and lap portion of a Type II vehicle belt that is used to attach the system to the vehicle shall, when [dynamically] tested in accordance with S6.1, impose no loads on the child that result from the mass of the system . . .

You ask about several final rules that amended S5.4.3.2, resulting in the text quoted above. Your questions relate to whether the agency has data showing a safety problem with child restraints having masses greater than 4.4 kg, and how NHTSA would test such a restraint to the requirement of S5.4.3.2.

The following background would be helpful in answering your questions.

Background

Prior to the amendment of S5.4.3.2, that section only applied to belts that were (a) part of a child restraint system; (b) designed to restrain a child using the system; and (c) designed to attach the system to the vehicle. These belts were prohibited from imposing any load on the child, resulting from the mass of the system, during the standard's dynamic test.

In a March 16, 1994 notice of proposed rulemaking (NPRM), NHTSA proposed to expand S5.4.3.2 to apply it also to each Type I (lap) and the lap portion of a Type II (lap/shoulder) vehicle belt that is used to attach the child restraint to the vehicle. These belts, which anchor the child restraint to the vehicle, function to absorb the forces of the crash into the frame of the vehicle. In the proposal, NHTSA tentatively concluded that, to protect the restrained child from the crash forces absorbed by these belts, the belts should be prohibited from transferring those crash forces to the child.

Several persons commenting on the proposal stated that the proposal would eliminate high-back belt-positioning booster seats from the marketplace. These boosters, which have backs supporting the head, neck and back of a child, are designed to restrain the child using a vehicle's Type II (lap/shoulder) belt. Some commenters stated that all belt-positioning boosters with seat backs will impose a load on the child through the lap belt portion (as well as the shoulder belt portion) of a Type II vehicle belt. The commenters were concerned that eliminating belt-positioning boosters was undesirable because there were no data showing a safety problem, and because the boosters were believed to perform well with Type II belts. Commenters also expressed concern that it was not practical to measure the load imposed on the test dummy. Some commenters suggested retaining the proposal but excluding any booster with a mass of less than 4 kilograms (kg) from the requirement. Four (4) kg was believed to be the maximum mass of belt-positioning boosters then on the market.

In a July 6, 1995 final rule, NHTSA responded to these commenters by stating that it did not intend to prohibit belt-positioning boosters with backs, nor did the agency believe there was a sufficient safety problem to warrant prohibiting current designs of such seats. Nonetheless, NHTSA further stated that it believed that limits on belt loading should be established to keep in check the potential for injury due to overloading a child occupant, such as from a "massive seat back" on a child restraint.

The agency adopted the approach suggested by some commenters of retaining the requirement, but excluding from it any restraint with a mass of less than 4 kg. The approach was consistent with requirements in Europe and with what the agency had believed to be the U.S. market at the time. NHTSA believed there was no data showing that a child restraint with a mass less than 4 kg imposes harmful loads on a child.

Gerry Baby Products petitioned for reconsideration of the amendment. Gerry said that NHTSA's belief that all the belt-positioning seats in the U.S. have a mass less than 4 kg was incorrect. Gerry stated that it sold seats with a mass of up to 4.4 kg, and had received no report of any problems or injuries associated with loads imposed on children by the booster seats.

In a June 18, 1996 response to the petition, NHTSA increased the 4 kg limit to 4.4 kg. NHTSA had been unaware that there were boosters with a mass greater than 4 kg (no commenter to the NPRM had indicated otherwise). The agency increased the limit based on Gerry's experience which had indicated that boosters with a mass up to 4.4 kg had not imposed unsafe loads on children.

The 1995 decision to limit the potential for overloading a child from elements such as a massive seat back on a belt-positioning seat departed from a July 21, 1994 rule that first established requirements for belt-positioning seats. In the 1994 rulemaking, the agency decided not to specify limits on seat back loading. The agency believed there was a lack of data indicating a safety problem and there was no procedure for measuring loads or for determining a threshold value for the loads imposed. In the 1995 rule, the agency explained that in 1994 it had not considered that a lap belt portion of a Type II belt system could transfer crash forces to a child from the back of a belt-positioning booster seat. The agency stated that after further consideration, in the context of S5.4.3.2, it had determined that a limit on the mass of the booster seat back was warranted to avoid potential injury to the child occupant.

With this background in mind, we turn to your questions, which we have restated below. Our answers follow each question.

Discussion

You first ask about NHTSA's 1995 decision to limit the mass of the seat back of belt-positioning seats after it had initially decided against doing so in 1994. You ask:

1. Was there any testing done after this [1994] rule was issued to confirm or deny [some commenters' beliefs that NHTSA ought to limit the weight of booster seats]? What was the outcome, or where could I find this information? Does NHTSA feel that higher booster seat weight would result in higher HIC's, G forces and excursions? Would this data be available also?

NHTSA did not conduct testing to confirm or deny the views that booster seats should be restricted in weight to limit overloading the child occupant. At the time of the rulemaking, and continuing to today, there are no test dummies that can reliably measure abdominal loading, nor is there an established injury criterion that correlates abdominal loads to the likelihood of injury. Also, there was, and is, no established test procedure in Standard 213 that measures seat back loads on the child dummy and that correlates those to injury. Yet, it was believed that seat back loads could, at some level, injure a child in a crash, when loads were excessive. In view of the confines at the time of the rulemaking on developing a test that would distinguish between excessive and acceptable loads on the child occupant, NHTSA adopted an alternative approach that limits loading by way of limiting the mass of the booster seat. The agency had insufficient data on which to determine whether we agreed or disagreed with the belief expressed by a commenter that increasing booster seat weights results in higher HIC's, G forces or excursions.

Your second question asks about the agency's 1995 decision to limit the potential for injury due to overloading the child from "a massive child seat back." You ask:

2. What does the agency see as massive? Is there any data or history on seats viewed as massive that injured a child due to back loading? If so, how much did the seat weigh? If there are no data, would there be an acceptable method to test the loads imposed on the back of the child, and how would threshold values be determined?

NHTSA has not identified a value above which injury could result from loading a child occupant and below which injury is not likely to occur. Yet, child restraints with a mass of less than 4.4 kg are viewed as not likely to injure, based on the field experience of Gerry Baby Products with its 4.4 kg booster seat.

We do not know of actual injuries caused by seat back loading. However, in 1996, the Federal Aviation Administration (FAA) and NHTSA conducted a rulemaking relating to excessive seat back loads in the aircraft environment (61 FR 28423, June 4, 1996)(copy enclosed). FAA sought to prohibit the use of backless boosters seats on aircraft because it believed the seats were incompatible with aircraft seats that have a "breakover" seat back. (A breakover feature allows the seat back to rotate forward easily when impacted by an occupant from behind.) FAA determined that a child dummy restrained in a backless booster seat experienced an increase in abdominal loading when an adult dummy in the seat rearward of the child impacted the seat back. The increase in loading was unacceptable to FAA, although it was recognized that there are no accepted criteria to assess the relationship between differences in measured levels of abdominal loadings and any resulting risk of abdominal injury, and the type and severity of such injury. FAA's methodology for the research program is discussed in NHTSA's 1996 final rule, a copy of which is enclosed for your information.

3. How is a restraint tested if it is over 4.4 kg? How are loads measured in S6.1 if the restraint is over 4.4 kg?

A restraint that is over 4.4 kg is evaluated to ascertain compliance with the requirements of S5.4.3.2 in accordance with NHTSA's laboratory test procedure for that section, which you ask about in your fourth question. The evaluation is based on a visual inspection. NHTSA believes that all belt-positioning booster seats with a back will load the child through the lap belt portion of a Type II belt. Thus, a belt-positioning seat, unless excepted because it is less than 4.4 kg, generally will not meet S5.4.3.2. In essence, that section functions to limit the mass of belt-positioning boosters with backs.

4. In the Laboratory Test Procedure for FMVSS 213, the section 5.4.3.2 for Direct Restraint Belts (page 104) lists 3 yes/no questions as pass/fail criteria, with 3 yes answers failing the restraint. The questions are: (1) Belt/dummy contact for restraint; (2) Rigid structure behind dummy; and (3) Belt/child restraint slip possible. What does the third criterion mean? How does the 4.4 kg requirement within FMVSS 213 relate to this testing procedure?

The three criteria indicate the factors which NHTSA evaluates to determine whether a child restraint meets S5.4.3.2. A restraint fails if all three criteria are answered "yes." If only two of the questions result in a "yes," then we determine there is no loading of the child dummy. Under (1), to determine whether S5.4.3.2 applies, the agency checks to see if the belt in question contacts the dummy. Under (2), the agency checks to see if there is rigid structure between the dummy and the back of the standard seat assembly because that structure could impose excessive loads on the child. Under (3), NHTSA checks to see if the child restraint can move ("slip") relative to the belt system. A child restraint that moves forward against a relatively stationary belt can load the child occupant.

I hope this information is helpful. Again, my apologies for the delay in responding. If you have further questions, please contact Deirdre Fujita of my staff at (202) 366-2992.

Sincerely,
Frank Seales, Jr.
Chief Counsel
Enclosure
ref:213
d.2/22/99

ID: 18569.ztv

M. J. Shaw
379 E. Main St.
Peru, IN 46970-2522

Dear Mr. or Ms. Shaw:

This is in reply to your postcard of August 4, 1998, to Philip Recht, the Deputy Administrator of this agency, about the recent final rule on low-speed vehicles.

Your first question is whether "the Canadian Bombardier neighborhood vehicle (electric mini-car) [is] now street legal in the USA." Your second question is whether "all states, including [Indiana, are] registering the NV for legal operation."

The Federal government has the authority to issue Federal motor vehicle safety standards such as it did recently with Standard No. 500 Low-Speed Vehicles. Thus, if a motor vehicle that meets the definition of "low-speed vehicle" is manufactured and certified by its manufacturer as complying with Standard No. 500, it is legal to import and sell that vehicle in the United States. Thus, Bombardier may import its Neighborhood Vehicle (NV) from Canada by certifying compliance with Standard No. 500. We do not know, however, whether Bombardier has begun to do so. Although the sale of a certified low-speed vehicle would not violate Federal law, the requirements for registration of vehicles and conditions of their use on the public roads are matters under the authority of the states. This means that a vehicle could be "street legal," to use your term, for Federal purposes but not under state law.

This brings us to your second question. We have no information whether states are or are not registering NVs or other types of low-speed vehicles. Some states, at this point, may be reviewing Standard No. 500 to determine how it affects the laws currently existing in that state. We do not know the views of Indiana on this issue. However, if you wish to ask the Indiana Department of Motor Vehicles for its opinion, you should identify the vehicle as a 4-wheeled motor vehicle, other than a truck, whose maximum speed is more than 20 miles per hour but not more than 25 miles per hour.

If you have any further questions, you may phone Taylor Vinson of this office (202-366-5263).

Sincerely,
Frank Seales, Jr.
Chief Counsel
ref:500
d.9/29/98

ID: 18571-a.wkm

Geffrey W. Anderson, Esq.
Howell, Dorman, Anderson, Berg & Smyer, L.L.P.
Attorneys at Law
University Center 1, Suite 110
1300 South University Drive
Fort Worth, TX 76107

Dear Mr. Anderson:

Your letter and its enclosed product addressed to Mr. James Jones of this agency was forwarded to this office for response.

Your letter enclosed a product called the Air Blow Gun (ABG), manufactured by Barjan Products of East Moline, IL. The ABG is described as a length of 11.5-foot coiled 1/4 inch vinyl tubing with brass fittings on either end and a lever-type blow gun. The ABG attaches to the vehicle's compressed air system which supplies compressed air for its air brake system. When attached to the air system, it can be used to clean various surfaces with air pressure. The ABG's container carries the notation "D.O.T. approved." You stated that your client is concerned about this product's claim that it is "D.O.T. approved," and asked whether it is in fact approved by the US Department of Transportation and whether or not such representation constitutes false advertisement.

By way of background information, the National Highway Traffic Safety Administration (NHTSA), by delegation from the Secretary of Transportation, has the statutory authority to issue Federal motor vehicle safety standards (FMVSS) applicable to new motor vehicles and new items of motor vehicle equipment (49 U.S.C. Chapter 301). That statutory scheme establishes a self-certification system under which motor vehicle and equipment manufacturers themselves certify that their products comply with all applicable FMVSSs. Most of the FMVSSs that apply to motor vehicle equipment require such equipment to be certified by the manufacturer. That certification is often shown by marking the product itself with the letters "DOT." NHTSA enforces compliance with the standards by purchasing and testing motor vehicles and equipment. The agency also investigates safety-related defects. If NHTSA or the manufacturer finds that a vehicle or item of equipment does not comply with applicable standards or is found to have a safety-related defect, the manufacturer is responsible for remedying the defect or noncompliance at no charge to the customer. Thus, NHTSA neither approves, disapproves, endorses, tests, nor grants clearances for products prior to their introduction into the retail market.

Turning now to the ABG, we would classify it as an item of motor vehicle equipment, which is defined in 49 U.S.C. 30102(a)(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." The ABG would be classified as an accessory if it meets the following two tests:

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

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

After reviewing the product and the information on its container, we conclude that the ABG is an accessory. While the ABG is a motor vehicle accessory, NHTSA has not issued any FMVSSs establishing performance standards applicable to this particular product. Thus, it is not required to be certified or marked with the "DOT" symbol.

The notation "D.O.T. approved" appears in four places on the ABG's container. As pointed out above, NHTSA does not approve motor vehicle equipment or accessories, nor can the phrase "D.O.T. approved" be interpreted as the manufacturer's certification of compliance with applicable FMVSSs.

We appreciate your advising us of this matter. We will contact Barjan Products, the manufacturer of the ABG, with a view to resolving the situation.

I hope this information is helpful to you. Should you have any further questions or need additional information, feel free to contact Walter Myers of my staff at this address or at (202) 366-2992, or by fax at (202) 366-3820.

Sincerely,
Frank Seales, Jr.
Chief Counsel
ref: #121#VSA
d.3/23/99

ID: 18571-b.wkm

Barjan Products
2751 Morton Drive
East Moline, IL 61244

Dear Sir/Madam:

It has come to our attention that your company manufactures a product called the Air Blow Gun (ABG), which is described as a length of 11.5-foot coiled 1/4 inch tubing with brass fittings on either end and a lever-type blow gun. The ABG attaches to the vehicle's compressed air system which supplies compressed air for its braking system. When attached to the air system, it can be used to clean various surfaces with air pressure. The ABG's container carries the notation "D.O.T. approved" in four places.

By way of background information, the National Highway Traffic Safety Administration (NHTSA), by delegation from the Secretary of Transportation, has the statutory authority to issue Federal motor vehicle safety standards (FMVSSs) applicable to new motor vehicles and new items of motor vehicle equipment (49 U.S.C. Chapter 301). That statutory scheme establishes a self-certification system under which motor vehicle and equipment manufacturers themselves certify that their products comply with all applicable FMVSSs. Most of the FMVSSs that apply to motor vehicle equipment require such equipment to be certified by the manufacturer. Where required, that certification is often shown by marking the product itself with the symbol "DOT." NHTSA enforces compliance with the standards by purchasing and testing motor vehicles and equipment. The agency also investigates safety-related defects. If NHTSA or the manufacturer finds that a vehicle or item of equipment does not comply with applicable standards or is found to have a safety-related defect, the manufacturer is responsible for remedying the defect or noncompliance at no charge to the customer. In carrying out its functions, consistent with the self-certification aspects of the program, NHTSA does not approve, disapprove, endorse, test, or grant clearances for products prior to their introduction into the retail market.

Turning now to the ABG, we would classify it as an item of motor vehicle equipment, which is defined in 49 U.S.C. 30102(a)(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." The ABG would be classified as an accessory if it meets the following two tests:

a. A substantial portion of its expected uses are related to the operation and/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 and the information on its container, we conclude that the ABG is an accessory. It was obviously designed and is being marketed with the expectation that a substantial portion of its expected use will be in or on motor vehicles. Further, it would appear that the ABG is intended to be purchased and principally used by ordinary users of motor vehicles, specifically vehicles equipped with air brake systems, as opposed to professional vehicle repair personnel, since its stated purpose is "for fast and easy cleaning," using the vehicle's own compressed air supply. Motor vehicle repair businesses can be expected to have their own air supply.

While the ABG is a motor vehicle accessory, NHTSA has not issued any FMVSSs establishing performance standards applicable to this particular product.⁽¹⁾ Thus, under the certification provisions, certifying or marking the ABG with the "DOT" symbol is not warranted. Nevertheless, you, as the manufacturer, are subject to the requirements of 49 U.S.C. 30118 - 30120, which set forth the notification and remedy procedures for products with defects related to motor vehicle safety.

As stated above, NHTSA does not approve motor vehicle equipment or accessories. The phrase "D.O.T. approved," where there are no applicable FMVSSs, is a false certification in violation of 49 U.S.C. 30115 and could be misleading to the public. Accordingly, the notation "DOT approved" must be removed from the product's container and any other promotional literature or information pertaining to this product.

I hope this information is helpful to you. Should you have any questions or need additional information, feel free to contact Walter Myers of my staff at this address or at (202) 366-2992, or by fax at (202) 366-3820.

Sincerely,
Frank Seales, Jr.
Chief Counsel
ref:121#VSA
d.3/23/99

1. FMVSS No. 121. Air brake systems, specifies performance and equipment requirements for braking systems on motor vehicles that are equipped with air brake systems. The standard does not address the use of air pressure from the brake air supply for other purposes, such as use of the ABG for cleaning, but doing so could affect the vehicle's compliance with the air brake standard. Further, if the ABG is permanently integrated into the vehicle's compressed air supply system, as opposed to being attached and detached as needed, the ABG could be subject to FMVSS No. 106, Brake hoses. It could be subject to the brake hose standard if it transmits or contains the brake air pressure used to supply force to a vehicle's brakes, or stated another way, if a failure of the hose would result in a loss of air pressure in the brake system. In such a case, the ABG would be a brake hose and must comply with FMVSS No. 106. If a check valve or other device is used to prevent loss of pressure, however, then the ABG would not contain or transmit the vehicle's brake air pressure and would not be required to comply with the brake hose standard.

ID: 18574caps.etc

Ms. Annemarie Shelness
Shelness Productions
P.O. Box 30456
Winston-Salem, NC 27130-045

Dear Ms. Shelness:

This responds to your letter and telephone call asking about the labeling requirements in Federal Motor Vehicle Safety Standard No. 213, "Child Restraint Systems" (49 CFR 571.213) for add-on child restraints. I apologize for the delay in responding.

You ask whether the warnings and other information required by S5.5.1 and S5.5.2 of Standard 213 may be changed by: (1) rewording some of the required text; (2) adding text and WARNING headings; and (3) using upper and lower case letters for text printed in the standard in all capital letters. We will address those questions below, and have enclosed copies of the letters we reference in our answers.

Rewording Required Text

You have proposed to reword the text in two ways. First, S5.5.2(e) of the standard requires manufacturers to include the statement: "This child restraint system conforms to all applicable Federal motor vehicle safety standards." You would like to reword this statement, and combine it with another required statement, to read: "This product fulfils the requirements of the U.S. Federal Motor Vehicle Safety Standard 213 and is certified for use in motor vehicles and for use in aircraft." Second, S5.5.2(g) requires the statement: ". . . Secure this child restraint with a vehicle belt as specified in the manufacturer's instructions located __________." You have reworded this by, among other things, not specifying the location of the printed instructions here, but have moved that information elsewhere.

We have carefully considered your suggestion and regret to inform you that we cannot, by interpretation, permit your proposed rewording of the required statements.

Paragraph S5.5 of Standard 213 requires child restraints to be permanently labeled with certain information, including specific statements provided in quotations in the standard. The agency's longstanding position is that the wording on child restraint labels must be as specified in S5.5, with very limited exceptions. We have permitted certain minor variations that clarified text and did not make any substantive change in the meaning of the warning specified for the label. (See, e.g., copy of December 18, 1980, letter to Ford Motor Company, changing the word form from the plural "instructions" to the singular "instruction." This change allowed the specified language to be clarified by making it more appropriate for child restraints that had a single instruction pertaining to a particular feature.) All in all, we have taken a strict view that the wording required by Standard 213 may not be altered.

The rewording you have done to the specified text is not minor. Our position is that changes of this nature to the specified text cannot be permitted.

Adding Text and Headings

You also wish to add text and headings to the labeling specified by Standard 213. For example, you wish to add the statements: "Please read and understand the information in this booklet before using your infant restraint. Store the booklet in the plastic pocket located in the back of the restraint, just above the rocker base. Consult it often to make sure you are using the restraint correctly. . . . In a severe crash your child could . . . be ejected from the vehicle into the roadway." You also propose to add headings in the label, such as one stating "WARNING" with an alert symbol (a triangle with an exclamation point inside), highlighted on a bright yellow background, and others (in bold and not on a yellow background) stating "For Your Information" and "Your Child's Protection is in Your Hands."

Your added text would be permitted. NHTSA has permitted manufacturers to provide information in addition to the required information, provided that the additional information is presented in a manner that is not likely to obscure or confuse the meaning of the required information or otherwise defeat its purpose. (See copy of April 17, 1989 letter to Cosco, Inc., permitting manufacturers to express required information in equivalent English and metric units.) Your added text does not appear likely to have those negative impacts on the required information, and thus would be permitted.

We generally note, however, that the yellow highlighted WARNING heading should be used judiciously so as not to dilute its eye-catching impact. A yellow highlighted WARNING heading with the alert symbol you use is required for the air bag warning label that must be placed on rear-facing child restraint systems. The yellow highlighted WARNING heading and alert symbol are required for that label to attract the reader's attention and prevent rear-facing restraints from being used in seating positions with air bags. If the heading were overly used, the impact of the air bag warning label could be diluted and its effectiveness reduced. Manufacturers are advised to refrain from overusing the yellow highlighted WARNING heading and alert symbol.

Using Upper and Lower Case Letters

You wish to use upper and lower case letters in labeling that is set forth in Standard 213 in all capital letters. We conclude capitalization is not generally required if not expressly required, and that upper and lower case letters are permitted. A 1978 rulemaking notice had proposed to require the lettering to be in "block letters" and had set forth the required text in all capital letters. The agency stated in the preamble to the December 13, 1979, final rule following the proposal that it was not requiring the block letters and was permitting the labeling to be in upper and lower case lettering (44 FR 72134).⁽¹⁾ Thus, while the wording is shown in capital letters in the standard, we conclude that Standard 213 does not require that the messages be capitalized.

We note that there have been interpretations since the 1979 rule that have interpreted Standard 213 as requiring warnings to be capitalized because they are set forth in Standard 213 in capitalized letters (e.g., preamble to a February 16, 1994, final rule concerning labeling add-on restraints). The agency has also stated its belief that safety messages in capitalized letters were more likely to be noticed and read. However, in concluding that the warnings had to be capitalized, the agency did not account for the statements in the preamble to the 1979 rule that indicated that upper and lower case lettering could be provided as an option to capitalized letters. To the extent the previous interpretations requiring capitalization are inconsistent with today's letter, those interpretations are superceded. Note, however, that where Standard 213 expressly requires capitalized letters, using lower case letters is not an option (e.g., manufacturer's restrictions on adjustment positions for built-in restraints must be capitalized under S5.5.5(g)(2) of the standard).

I hope this information is helpful. If you have other questions, please contact Deirdre Fujita of my staff at (202) 366-2992.

Sincerely,
Frank Seales, Jr.
Chief Counsel
Enclosure
ref:213
d.5/4/99

1. That notice pertained to labeling for add-on restraints, required by what is now S5.5.2(a) through (k), but did not include S5.5.2(i) or the air bag warning labels required by S5.5.2(k). Those requirements were adopted at a later date.

ID: 18577.drn

Lawrence A. Beyer, Esq.
674 Lake Road
Webster, NY 14580

Dear Mr. Beyer:

This responds to your request for an interpretation whether Standard No. 122, Motorcycle Brake Systems permits a motorcycle to meet the stopping distance requirements of S5.3 and S7.8.1 through means other than hydraulic or air service braking systems. The answer to your question is yes, the motorcycle must meet the stopping distance requirements, but Standard No. 122 does not specify the particular braking system that must be used.

In your letter, you explained that your client, S-Lemma Inc. is in the process of certifying an electric motorcycle, the S-LEM Active. You state that the S-LEM Active meets the braking requirements by means of a hydraulic system and an electro-magnetic based regenerative braking system. You note that since electro-magnetic braking systems are not mentioned in Standard No. 122, your client is concerned that even if the S-LEM meets the stopping distance requirements of S5.3 and S7.8.1, the National Highway Traffic Safety Administration (NHTSA) will not recognize the compliance of a motorcycle with Standard No. 122 through means other than hydraulic or air service braking systems.

In Standard No. 122, S1. Scope, states: "This standard specifies performance requirements for motorcycle brake systems." Required equipment is specified at S5.1 which states: "Each motorcycle shall have either a split service brake system or two independently actuated service brake systems."

NHTSA interprets these provisions to require at least two independently actuated service brake systems that will independently meet the stopping distance requirements of S5.3 and S7.8.1. Since nothing in the standard specifies that each service brake system is limited to hydraulic or air service braking systems, the regenerative braking system is permitted, as long as it can, independently of the hydraulic system, meet the stopping distance requirements.

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

Sincerely,
Frank Seales, Jr.
Chief Counsel
ref:122
d.11/20/98

ID: 18592.wkm

Mr. G. S. Edington
General Manager
KUMHO Technical Center
3500 Embassy Parkway, Suite 150
Akron, OH 44333

Dear Mr. Edington:

This responds to your letter to this agency regarding the metrication of Federal Motor Vehicle Safety Standard (Standard) No. 119, New pneumatic tires for vehicles other than passenger cars. You referred to the final rule published in the Federal Register on May 27, 1998, (63 FR 28912) in which we changed paragraph S6.5(d) to require that the maximum load ratings and corresponding maximum inflation pressures be shown in metric numbers, followed by English numbers in parentheses, effective May 27, 2003. You asked whether you could continue to show the load ratings and inflation pressures in English units, followed by metric units in parentheses after the May 27, 2003 effective date. The answer is no.

Standard No. 119, subsection S6.5, Tire markings, specifies the labeling that is to be placed on tire sidewalls, the placement of the markings on the sidewalls, and the measurements of the required markings. Paragraph (d) requires that the maximum load rating and the corresponding tire inflation pressure of the particular tire be shown as follows:

For tires rated for single and dual load:
Max load single            kg (         lb) at            kPa (         psi) cold.
Max load dual              kg (         lb) at            kPa (         psi) cold.
For tires rated for single load only:
Max load            kg (           lb) at            kPa (           psi) cold.

ID: 18617-5

Mr. David R. Button
Wegman, Hessler, Vanderburg & O'Toole
Suite 200
6055 Rockside Woods Boulevard
Cleveland, OH 44131

Dear Mr. Button:

This responds to your request that we reevaluate a February 2, 1988, interpretation from this office that log splitters are motor vehicles subject to Federal motor vehicle safety standards. We apologize for the delay in responding. Based on the new information you have given us, we conclude that the log splitters are not motor vehicles.

Our 1988 interpretation letter had responded to an inquiry from Mr. John V. McFadden, former President of MTD Products, Inc. (MTD), which manufactures a line of log splitters. He had described the log splitter as "mounted on a frame carriage equipped with highway high speed wheels and a trailer towing hitch." We concluded from the product literature, and from the provision of highway speed tires with the product, that the log splitters were motor vehicles, in that they would likely make frequent use of the highway and would likely stay at one particular "job site" for a limited amount of time. We also concluded that the log splitters were "trailers," a type of motor vehicle defined in our regulations and subject to the Federal motor vehicle safety standards.

Your new letter gives substantially more background on the log splitters than was provided us in 1988, and asks us to reconsider. You state that the MTD's log splitters are manufactured and sold to consumers through retail establishments such as Sears and Home Depot, in their power tools departments. The log splitter is sold in a box, and the trailer hitch and wheels must be assembled by the consumer. You state that the product is unsuitable for commercial use. You also state that consumer would likely use the log splitter only incidentally, if at all, on the public roadways, and that the MTD's owner's guide indicates that the product is not designed to be used frequently on the public roads. You further state that the product would spend most of its life in storage in a barn or shed, and that the use of the product is seasonal, amounting to only a few weekends a year.

Our statute, at 49 USC 30102(a)(6), defines "motor vehicle" as "a vehicle driven or drawn by mechanical power manufactured primarily for use on the public streets, roads, and highways, but does not include a vehicle operated only on a rail line." "Trailer"is defined in 49 CFR 571.3 as "a motor vehicle with or without motive power, designed for carrying persons or property and for being drawn by another motor vehicle."

Based on the new information you provided, we have reconsidered our 1988 interpretation. We conclude that MTD's line of log splitters are normally purchased for use by an individual consumer, since the product is sold in the power tools section of department stores and other retail stores, requires final assembly by the purchasing consumer, and appears to be unsuitable for high-volume commercial use. Assuming you are correct that these log splitters, sold to individual consumers, are likely used on the public roads infrequently, if at all, we conclude that the log splitters are not manufactured primarily for use on the public roads and are thus not motor vehicles under our statute. If we discover that these vehicles are being used on the road more frequently than you have represented to us, then we might reach a different conclusion.

Since the log splitters are not motor vehicles under our statute, they do not have to meet Federal motor vehicle safety standards. This means that the Federal government in the United States does not regulate them. Our conclusion has no effect on the status of these vehicles in other countries. Moreover, we encourage you to check State regulations, because they may require MTD's product to have certain equipment (e.g., lights and tires) to maximize the safe operation of the product on the highways.

If you have further questions, please contact Paul Atelsek of my staff at this address or by telephone at (202) 366-2992.

Sincerely,
Frank Seales, Jr.
Chief Counsel
cc: Consumer Product Safety Commission
ref:VSA#571.3#591
d.6/1/99

ID: 18644kwii.ogm

William Shapiro, P.E.
Manager
Regulatory Compliance and Environmental Affairs
Volvo Cars of North America
7 Volvo Drive
Rockleigh, NJ 07647-0913

Dear Mr. Shapiro:

This is in response to your letter of August 6, 1998 regarding the impact of amendments adopted by the National Highway Traffic Safety Administration (NHTSA) pursuant to the Debt Collection Improvement Act (DCIA) on applicable penalties for violations by Volvo Cars of North America (Volvo) of the corporate average fuel economy (CAFE) standard applicable to model year (MY) 1998 passenger cars.

Pursuant to 49 U.S.C.  32912(b), a manufacturer that violates a CAFE standard (after applying any applicable carry-back or carry-forward credits) is liable for a civil penalty of $5.00 for each tenth of a mile per gallon (mpg) by which the standard exceeds its average fuel economy for that year, multiplied by the number of automobiles in its fleet. Pursuant to the DCIA, NHTSA raised that amount to $5.50 per tenth of an mpg. 49 CFR 578; 62 Fed. Reg. 5167 (January 30, 1997). The effective date of the increase was March 6, 1997.

In your letter, you refer to a July 23, 1998 letter from me to you, in which I stated that the increase in the CAFE penalty amount would apply beginning with the 1998 model year. You assert, however, that the penalty increase should not apply to Volvo's MY 1998 fleet because certain MY 1998 Volvos were produced and sold prior to the effective date of the increase.

In my July 23, 1998 letter, I explained that NHTSA has long maintained that CAFE standards apply to model years as a whole, and not to separate parts of a model year. The letter also set forth the agency's rationale for concluding that the applicable CAFE penalty is the penalty in effect at the beginning of the model year in question. Since the effective date of the DCIA increase was after the beginning of the 1997 model year, we announced that the penalty increase would apply to violations of the MY 1998 CAFE standards.

You have advised us that, beginning in February 1997, Volvo began selling S/V70 model vehicles that it designated as MY 1998 models. Since this preceded the effective date of the penalty increase, you contend that applying the increased penalty to Volvo's MY 1998 fleet would be inconsistent with the agency's decision that CAFE standards apply only to model years as a whole.

The agency does not agree with your interpretation. Rather, as explained below, we have determined that all DCIA amendments to CAFE civil penalty levels that are effective prior to October 1 of a given year will apply to violations of CAFE standards applicable to the subsequent model year.

As you know, 49 U.S.C. Chapter 329, "Automobile Fuel Economy," establishes time limits within which NHTSA must prescribe and/or amend fuel economy standards for a given model year that are based upon the beginning of the model year. See 49 U.S.C.  32902(a) and (g)(2). In interpreting those provisions, both NHTSA and the courts have concluded that the model year will be deemed to begin on October l. See 49 Fed. Reg.225l6 (May 30, l984); 49 Fed. Reg. 4l250 (October 22, l984); In re Center for Auto Safety, 793 F.2d l346, l349 (D.C. Cir. l986). See also General Motors Corporation v. NHTSA, 898 F.2d l65, l76 (D.C. Cir. l990); and Center for Auto Safety v. NHTSA, 7l0 F.2d 842, 847 (D.C. Cir. l983).

The use of October 1 to mark the commencement of a model year provides NHTSA with a consistent benchmark for satisfying its statutory obligation to promulgate and amend CAFE standards on a timely basis. If, for example, the agency were to recognize model years that were selected by manufacturers for marketing or other purposes as the model year for the purposes of prescribing or amending CAFE standards, it would be difficult, if not impossible, for NHTSA to issue such standards in a timely fashion.

We recognize that a manufacturer may produce or import vehicles that it designates as belonging to a particular model year before October l of the preceding year. However, for purposes of deciding the model year to which any enhanced penalties imposed under the DCIA apply, we need to have a standardized model year that applies to the industry as a whole. We have concluded that since we have previously utilized October 1 as the relevant date for other purposes under the CAFE statute, we will use it for this purpose as well.

If, as you suggest, NHTSA did not apply the enhanced penalties to Volvo's MY 1998 fleet, Volvo would be subject to lesser CAFE penalties than other manufacturers simply by virtue of having produced a small number of vehicles prior to March 6, 1997 that it unilaterally chose to designate as MY 1998 models. We believe that it would be inequitable for the agency to apply the CAFE penalties in such a fashion.

Moreover, if NHTSA were to adopt the position urged by your company, we would encourage manufacturers to time the introduction of new model year vehicles to avoid future penalty increases adopted pursuant to the DCIA. It could also lead to claims that newly adopted or amended CAFE standards for a future model year that were issued on a timely basis should not apply to any manufacturer that sold some of that model year's vehicles prior to October 1 of the preceding year. Such a result would be contrary to the purposes of both Chapter 329 and the DCIA.

Accordingly, NHTSA has concluded that, for purposes of deciding when the enhanced CAFE penalties will apply, the 1998 model year began on October 1, 1997, which was well after the effective date of the penalty increase. Of course, as has always been the case, all of the vehicles that Volvo designated as MY 1998 vehicles will be considered to be part of Volvo's MY 1998 fleet for purposed of calculating its CAFE for that model year.

Accordingly, it is our position that any CAFE penalties applicable to Volvo for the 1998 model year must be calculated using the $5.50 per tenth of an mpg rate required by the DCIA and NHTSA's implementing regulation. However, it also my understanding that Volvo intends to submit another request for interpretation that may further impact on any penalties owed for MY 1998. Provided that this request is submitted prior to the current deadline for the company's payment of the MY 1998 penalty, NHTSA will not take further actions until your request is resolved.

I hope that this is responsive to your request. If you have any questions, please contact Otto Matheke of my staff at (202) 366-5253.

Sincerely,
Frank Seales, Jr.
Chief Counsel
ref:578
d.1/13/00

ID: 18644KWII.ogms

William Shapiro, P.E.
Manager
Regulatory Compliance and Environmental Affairs
Volvo Cars of North America
7 Volvo Drive
Rockleigh, NJ 07647-0913

Dear Mr. Shapiro:

This is in response to your letter of August 6, 1998 regarding the impact of amendments adopted by the National Highway Traffic Safety Administration (NHTSA) pursuant to the Debt Collection Improvement Act (DCIA) on applicable penalties for violations by Volvo Cars of North America (Volvo) of the corporate average fuel economy (CAFE) standard applicable to model year (MY) 1998 passenger cars.

Pursuant to 49 U.S.C.  32912(b), a manufacturer that violates a CAFE standard (after applying any applicable carry-back or carry-forward credits) is liable for a civil penalty of $5.00 for each tenth of a mile per gallon (mpg) by which the standard exceeds its average fuel economy for that year, multiplied by the number of automobiles in its fleet. Pursuant to the DCIA, NHTSA raised that amount to $5.50 per tenth of an mpg. 49 CFR 578; 62 Fed. Reg. 5167 (January 30, 1997). The effective date of the increase was March 6, 1997.

In your letter, you refer to a July 23, 1998 letter from me to you, in which I stated that the increase in the CAFE penalty amount would apply beginning with the 1998 model year. You assert, however, that the penalty increase should not apply to Volvo's MY 1998 fleet because certain MY 1998 Volvos were produced and sold prior to the effective date of the increase.

In my July 23, 1998 letter, I explained that NHTSA has long maintained that CAFE standards apply to model years as a whole, and not to separate parts of a model year. The letter also set forth the agency's rationale for concluding that the applicable CAFE penalty is the penalty in effect at the beginning of the model year in question. Since the effective date of the DCIA increase was after the beginning of the 1997 model year, we announced that the penalty increase would apply to violations of the MY 1998 CAFE standards.

You have advised us that, beginning in February 1997, Volvo began selling S/V70 model vehicles that it designated as MY 1998 models. Since this preceded the effective date of the penalty increase, you contend that applying the increased penalty to Volvo's MY 1998 fleet would be inconsistent with the agency's decision that CAFE standards apply only to model years as a whole.

The agency does not agree with your interpretation. Rather, as explained below, we have determined that all DCIA amendments to CAFE civil penalty levels that are effective prior to October 1 of a given year will apply to violations of CAFE standards applicable to the subsequent model year.

As you know, 49 U.S.C. Chapter 329, "Automobile Fuel Economy," establishes time limits within which NHTSA must prescribe and/or amend fuel economy standards for a given model year that are based upon the beginning of the model year. See 49 U.S.C.  32902(a) and (g)(2). In interpreting those provisions, both NHTSA and the courts have concluded that the model year will be deemed to begin on October l. See 49 Fed. Reg.225l6 (May 30, l984); 49 Fed. Reg. 4l250 (October 22, l984); In re Center for Auto Safety, 793 F.2d l346, l349 (D.C. Cir. l986). See also General Motors Corporation v. NHTSA, 898 F.2d l65, l76 (D.C. Cir. l990); and Center for Auto Safety v. NHTSA, 7l0 F.2d 842, 847 (D.C. Cir. l983).

The use of October 1 to mark the commencement of a model year provides NHTSA with a consistent benchmark for satisfying its statutory obligation to promulgate and amend CAFE standards on a timely basis. If, for example, the agency were to recognize model years that were selected by manufacturers for marketing or other purposes as the model year for the purposes of prescribing or amending CAFE standards, it would be difficult, if not impossible, for NHTSA to issue such standards in a timely fashion.

We recognize that a manufacturer may produce or import vehicles that it designates as belonging to a particular model year before October l of the preceding year. However, for purposes of deciding the model year to which any enhanced penalties imposed under the DCIA apply, we need to have a standardized model year that applies to the industry as a whole. We have concluded that since we have previously utilized October 1 as the relevant date for other purposes under the CAFE statute, we will use it for this purpose as well.

If, as you suggest, NHTSA did not apply the enhanced penalties to Volvo's MY 1998 fleet, Volvo would be subject to lesser CAFE penalties than other manufacturers simply by virtue of having produced a small number of vehicles prior to March 6, 1997 that it unilaterally chose to designate as MY 1998 models. We believe that it would be inequitable for the agency to apply the CAFE penalties in such a fashion.

Moreover, if NHTSA were to adopt the position urged by your company, we would encourage manufacturers to time the introduction of new model year vehicles to avoid future penalty increases adopted pursuant to the DCIA. It could also lead to claims that newly adopted or amended CAFE standards for a future model year that were issued on a timely basis should not apply to any manufacturer that sold some of that model year's vehicles prior to October 1 of the preceding year. Such a result would be contrary to the purposes of both Chapter 329 and the DCIA.

Accordingly, NHTSA has concluded that, for purposes of deciding when the enhanced CAFE penalties will apply, the 1998 model year began on October 1, 1997, which was well after the effective date of the penalty increase. Of course, as has always been the case, all of the vehicles that Volvo designated as MY 1998 vehicles will be considered to be part of Volvo's MY 1998 fleet for purposed of calculating its CAFE for that model year.

Accordingly, it is our position that any CAFE penalties applicable to Volvo for the 1998 model year must be calculated using the $5.50 per tenth of an mpg rate required by the DCIA and NHTSA's implementing regulation. However, it also my understanding that Volvo intends to submit another request for interpretation that may further impact on any penalties owed for MY 1998. Provided that this request is submitted prior to the current deadline for the company's payment of the MY 1998 penalty, NHTSA will not take further actions until your request is resolved.

I hope that this is responsive to your request. If you have any questions, please contact Otto Matheke of my staff at (202) 366-5253.

Sincerely,
Frank Seales, Jr.
Chief Counsel
ref:578
d.1/13/00