ID: 1924y

The Honorable Butler Derrick
United States House of Representatives
Washington, D.C. 20515

Dear Mr. Derrick:

Thank you for your July 11, l989 letter on behalf of one of your constituents in South Carolina, asking whether mandatory safety belt use laws are constitutional. I am pleased to have this chance to provide you with the following information.

Before addressing your specific question, I would like to emphasize that effectively enforced State laws requiring the proper use of safety belts offer our best opportunity to save lives today at virtually no cost to the consumer. We recognize that a safety belt use law requires an action that many people do not take voluntarily. However, all traffic laws involve some restraint on individual behavior. Most are accepted without a second thought: we drive on the right side of the road, instead of the left, we stop for red lights, and we obey speed limits. In many cases, the failure of motorists to obey these traffic laws will have an impact on motorists besides the violator.

The same is true when motorists fail to wear safety belts. Automobile accidents have many victims -- family, friends, employers, and taxpayers -- all of whom bear some measure of the human and economic cost. During the past decade, 470,000 persons have died on American highways. Each year, an estimated 300,000 are injured seriously enough to require hospital treatment. These traffic injuries and deaths have resulted in an annual cost to society of $57 billion, including such costs as workman's compensation, welfare payments and lost tax revenues. Because of the substantial societal burden imposed by vehicle-related deaths and injuries, we believe that State legislatures have more than adequate justification to impose the relatively small intrusion on individual liberties that results from mandatory safety belt use laws.

The constitutionality of State mandatory use laws has been upheld by the courts of three different States, Illinois, Nebraska, and New York. I have enclosed a copy of the Illinois Supreme Court's opinion on this issue (Illinois v. Kohrig, decided October 1, 1986). The Supreme Court of the United States dismissed an appeal from the Illinois Supreme Court's decision in Kohrig, on the grounds that it did not present a substantial Federal question. This dismissal suggests that the United States Supreme Court also believes that State mandatory safety belt use laws are constitutional.

You also stated that your constituent believes that the Supreme Court has declared laws requiring the use of motorcycle helmets to be unconstitutional. This belief is inaccurate. Page 7 of the enclosed Kohrig decision lists 35 different State and Federal cases that have held that State laws requiring the use of motorcycle helmets are a valid exercise of a State's powers and not unconstitutional. That list shows that the Supreme Court has affirmed a lower court decision that the Massachusetts motorcycle helmet use law was a constitutional exercise of a State's power (Simon v. Sargent, 346 F. Supp. 277, aff'd, 409 U.S. 1020 (1972)). Additionally, the Supreme Court has refused to review decisions by State Courts in Lousiana, Massachusetts, Washington, and Wisconsin upholding the constitutionality of State motorcycle helmet use laws. There are no Supreme Court decisions suggesting that State motorcycle helmet use laws are unconstitutional exercises of the State's power.

I hope this information is helpful. Please do not hesitate to contact me if you have any further questions or need some additional information on this subject.

Sincerely,

Stephen P. Wood Acting Chief Counsel

Enclosure /ref:208 d:7/31/89

ID: 19257.drn

Mr. Robert L. Douglas
Director of Product Integrity
AmTran Corporation
P. O. Box 6000
Conway, AR 72033

Dear Mr. Douglas:

This responds to your request for interpretation of how to test a floor panel complex joint in a school bus, as AmTran is considering a new floor design. As explained below, the National Highway Traffic Safety Administration (NHTSA) will address this issue in a final rule amending Standard No. 221, School bus body joint strength.

As you are aware, in the FEDERAL REGISTER of November 5, 1998 (63 FR 59732), NHTSA published a final rule amending Standard No. 221. The final rule's effective date is May 5, 2001. The final rule addressed testing of curved or complex joints, such as that found in a school bus floor panel. NHTSA has received several petitions for reconsideration of the final rule to clarify test procedures for small, curved, and complex joints.

NHTSA is presently reviewing the petitions, and expects to issue another final rule on Standard No. 221 that will address the issues raised. Because the issue you raised in your letter was raised by the petitioners, we will address your question in our response to petitions for reconsideration that will be published some time in the future.

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 at (202) 366-2992.

Sincerely,
Frank Seales, Jr.
Chief Counsel
ref:221
d.7/10/00

ID: 1925y

Mr. L.T. Mitchell, Specification Engineer
Thomas Built Buses, Inc.
P.O. Box 2450
1408 Courtesy Road
High Point, N.C. 27261

Dear Mr. Mitchell:

This responds to your letter asking us to reassess our previous interpretations of Standard No. 217, Bus Window Retention and Release (49 CFR /571.217). Before turning to the substance of your letter, I would like to apologize for the regrettable delay in this response.

You asked us to reassess a December 20, 1984 letter to Mr. Melvin Smith regarding school buses. Mr. Smith had, among other things, asked for an interpretation of the concluding sentence of S5.4.2.1(b) of Standard No. 217. Section S5.4.2.1(b) requires side emergency doors installed in a school bus with a gross vehicle weight rating of more than 10,000 pounds to have an opening that is at least 45 inches high and 24 inches wide when the side door is extended. The final sentence of S5.4.2.1(b) reads: "A vertical transverse plane tangent to the rear-most point of a seat back shall pass through the forward edge of a side emergency door." Mr. Smith had asked how much, if any, forward and/or rearward variation from perfect coincidence of the plane and door edge were permissible. We responded that no variation from the explicit requirements of the standard is permissible.

Your letter stated that a requirement for an exact coincidence of the plane and door edge "opens the door to impossible manufacturing requirements," and is "an extremely difficult goal to meet." You stated that requiring an exact relationship between a part of the seat and the door will require multiple seat installation adjustments, bending the seat, or deforming the seat padding. To avoid such burdens, you asked if the agency would consider setting tolerances for the coincidence of the points expressed in this provision. You proposed the following interpretation of the requirement for coincidence of the plane and door edge:

1. A seat back may not intrude backward into the door opening through the transverse plane coincident with the leading edge of the door opening.

2. A seat back may be located ahead of this transverse plane by no more than three-quarters of an inch, plus or minus three-quarters of an inch, or within but no more than, one and one-half inches ahead of the transverse plane coincident with the leading edge of the door opening.

It would be helpful to set forth some background information to fully explain why NHTSA cannot issue an intepretation along the lines you have suggested. Section 103 of the National Traffic and Motor Vehicle Safety Act (15 U.S.C. 1392; the Safety Act) specifies that NHTSA shall establish by order appropriate safety standards and that the Administrative Procedure Act shall apply to all orders establishing, amending, or revoking a safety standard. The Administrative Procedure Act generally requires agencies to publish a notice setting forth the proposed change to a safety standard, and allow the public to comment thereon, before the agency can adopt any change to the established safety standard.

Please note that the Safety Act requires public notice and comment only when adopting orders that establish, amend, or revoke a safety standard. Interpretations are not subject to the requirements for public notice and comment, because interpretations do not add, delete, or change any requirements established in a safety standard. Instead, intepretations explain how the requirements established in safety standards or the Safety Act apply to particular vehicles or equipment, or otherwise clarify the meaning of the established requirements.

In this case, the meaning of the requirement in Standard No. 217 that "a vertical transverse plane tangent to the rear-most point of a seat back shall pass through the forward edge of a side emergency door" is clear. This language clearly and unequivocally requires an exact coincidence of the location of the seat back and the forward edge of a side emergency door. There is no way that we can interpret this language in accordance with your suggestion; i.e., that the seat back shall be located no more than 1 and 1/2 inches forward of the forward edge of the emergency door.

Your letter suggested a change to the requirements of Standard No. 217, not a clarification of those requirements. As explained above, the only way by which we can change those requirements is to initiate rulemaking and give the public notice of and the opportunity to comment on the proposed change. Hence, your letter asking for an interpretation would have been more properly filed as a petition for rulemaking, pursuant to the provisions of 49 CFR Part 552.

Ordinarily, we would simply notify you of your right to file such a petition and take no further action unless and until you decided to file such a petition. In this case, however, the delay in this response may have conveyed the erroneous impression that NHTSA would provide a substantive response to your request in this interpretation. To ensure that your request receives a response addressing its merits, we will treat your letter as a petition for rulemaking filed under Part 552. We will notify you of our response to the petition as soon as we have completed our review of it.

Sincerely,

Stephen P. Wood Acting Chief Counsel

ref:217 d:8/3/89

ID: 1926y

Mr. Frank Miller
Gerry Baby Products
12520 Grant Drive
Box 33755
Denver, CO 80233

Dear Mr. Miller:

This responds to your letter to me asking whether the "binding" you use of the edges of a seat cushion should be tested under Standard No. 302, Flammability of Interior Materials, separately from the cushion assembly or as a composite with the other materials. I regret the delay in responding. You said that you currently test the binding separately, but would find it easier to test the binding "as a portion of a cushion assembly."

Paragraph S4.2.1 of Standard No. 302 provides that "any material that does not adhere to other material(s) at every point of contact" must meet the standard's flammability resistance requirements when tested separately. Thus, if the binding is joined to the cushion assembly so that it does not adhere to the cushion at every point of contact, the agency would test it separately. If, on the other hand, the binding adheres to the cushion at every point of contact, paragraph S4.2.2 requires it to meet the performance requirements of the standard when tested as a composite with the other materials.

In your letter, you did not directly state whether the binding adheres to the cushion at every point of contact. However, we presume that you currently think it does not, since you said you test the binding separately from the cushion. I am enclosing copies of two previous interpretations of Standard No. 302 that might be helpful in determining whether there is the requisite adherence. In a March 10, 1978 letter to Mr. Edmund Burnett, the agency discussed the application of S4.2.1 to a seat cushion consisting of vinyl stitched at varying internals to padding. In that letter, the agency stated that the vinyl, which did not adhere to the material at every point of contact, must be tested separately. On the other hand, a July 17, 1972 letter to Mr. Satoshi Nishibori concerned materials glued together, which NHTSA said would be tested by us as a composite.

Your inquiry follows our December 3, 1987 letter to you in which we said that thread that is used in the manufacture of a seat cushion may be tested as part of the component. We explained in our letter that although the agency recognizes that stitching that does not adhere at every point of contact should be tested separately under S4.2.1 of Standard No. 302, NHTSA has determined that it is more practical to test stitching as part of the material since the test apparatus cannot readily accommodate stitching alone. I note that the issue you now appear to raise is whether your binding, which presumably does not adhere at every point of contact, may be tested as part of the cushion material (i.e., as a composite) in the same manner thread is tested. The answer to this question is that the agency would probably separately test such binding under S4.2.1.

We have no reason to believe that it is not practicable to separately test binding that does not adhere at every point of contact, as specified in Standard No. 302. In fact, your present procedure which tests binding separately indicates that S4.2.1 is practicable. Since the practicability problems arising when separately testing thread are not encountered when the binding is tested, the agency will test binding that does not adhere at every point of contact in the manner specified in Standard No. 302.

This does not mean to say, however, that you are prohibited from testing the binding as a composite. Standard No. 302 does not require you to test your products using the test procedure set forth in the standard. The standard only specifies how the agency will conduct its compliance test for the flammability resistance requirements of Standard No. 302. A manufacturer may choose any means of evaluating its products to determine whether the vehicle or item of equipment complies with the requirements of Standard No. 302, provided, however, that the manufacturer exercises due care in ensuring that its products will comply with the standard when tested by the agency according to the procedures specified therein.

I hope this information is helpful.

Sincerely,

Stephen P. Wood Acting Chief Counsel

Enclosures

/ref:302 d:8/2/89

ID: 19278.DRN

Richard Nelson, Director
Nebraska Department of Health and Human Services
Regulation and Licensure
P. O. Box 95007
Lincoln, NE 68509-5007

Dear Mr. Nelson:

This responds to a letter from your predecessor, Ms. Gina Dunning, regarding a "new regulation" that Ms. Dunning believed the National Highway Traffic Safety Administration (NHTSA) has issued which "prohibits the sale of commercial vans with a capacity of eleven or more to child care centers that transport children to or from school and school-related activities and Head Start programs." As the head of the Nebraska regulatory agency for child care programs, Ms. Dunning expressed concern about its effect on transportation for children in your state.

Let me begin by explaining that NHTSA's school bus regulations have not changed. We have, however, clarified our interpretation of the regulations. Our statute, at 49 U.S.C. 30112, requires any person selling or leasing a new vehicle, including a new school bus, to sell or lease a vehicle that meets all applicable safety standards. Our statute defines a "schoolbus" as any vehicle that is designed for carrying 11 or more persons and which is likely to be "used significantly" to transport preprimary, primary, and secondary students "to or from school or an event related to school" (emphasis added). 49 U.S.C. 30125. Any person selling a new "school bus" must sell a vehicle that meets our school bus safety standards, or risk civil penalties under Federal law.

In recent interpretation letters to NHTSA, the agency was asked to address situations where non-educational institutions are procuring buses to transport children to or from school. In answering these, we had to determine whether the bus was to be "used significantly" to transport the students to or from school. >If a new bus is sold for such purpose, the dealer selling such a vehicle for that purpose must sell a bus that has been certified as meeting our school bus safety standards. There are van-based vehicles, completed by school bus manufacturers, that are certified to those standards.

One of those letters involved a dealer selling a new 15-passenger van to a child care facility which planned to significantly use the van for school transportation. The letter is dated July 23,

1998, to Mr. Don Cote of Northside Ford in San Antonio, Texas (copy enclosed). In that letter, we explained that the large passenger van is a "school bus" under our regulations. Thus, when a dealer sells or leases a new van for such use, the dealer must sell or lease only buses that meet Federal motor vehicle safety standards for school buses, even when the purchaser is a child care facility.⁽¹⁾

The Cote letter discusses NHTSA's reexamination of two previous letters addressed to Ms. Vel McCaslin of Grace After School. In arriving at the conclusions set forth in the Cote letter, NHTSA decided that the letters to Ms. McCaslin did not focus on the fact that the buses were being used to transport school children "from school" as specified in 49 U.S.C. 30125. To the extent that the McCaslin letters are inconsistent with it, the Northside Ford letter superceded the letters to Ms. McCaslin.

This change in interpretation applies only to persons that sell new buses, not to school bus purchasers or users. NHTSA cannot require Nebraska's institutions, including schools or child care centers, to buy only school buses for use in transporting students. How children are to be transported to or from school is determined by Nebraska state law.

Ms. Dunning expressed concern whether "children are indeed safer being transported by school buses than commercial vans," and indicated that while that might have been true in 1974, her belief is that vans are safer today than they were in 1974. All motor vehicles, including passenger vans and other buses, must meet higher safety standards today than they did in 1974. Nevertheless, children are still much safer when transported by school bus, than by passenger van or passenger car. This point is illustrated in the enclosed NHTSA publication "School Bus Safety: Safe Passage for America's Children."

Page 12 of the publication shows how safety is enhanced for school buses, with a table summarizing the Federal motor vehicle safety standards applicable to school buses. Passenger vans are not required to meet the described safety enhancements.

Ms. Dunning expressed concern about the fact that the large school buses are not required to provide seat belts. I am enclosing NHTSA's position on this issue, titled "Seatbelts on School Buses." This information is from NHTSA's web site at www.nhtsa.dot.gov. In brief, our position has been that school bus crash data show that Federal requirement for belts on school buses would provide little, if any, added protection in a crash.

Ms. Dunning also believed that child care centers that purchase school buses "will incur significantly higher vehicle costs and higher insurance, maintenance and fuel costs." We have examined the issues of costs and availability. Our inquiries to the vehicle manufacturers indicate that while school buses are somewhat more expensive than large vans, the difference is not so large that it would prevent child care centers from acquiring school buses. The cost range for 15-passenger school buses is approximately $30-32,000, compared to $25-28,000 for 15-passenger vans. The longer service life for school buses will offset a part of this difference.

Ms. Dunning's final point was that child care centers have expressed concern about the length of time it takes between ordering a school bus and its delivery. Ms. Dunning said that the delay hampers the child care centers' operations and "will seriously impact centers' ability to meet parent needs and remain in business." NHTSA has a very strong focus on child safety in transportation, and is doing its best to facilitate school bus purchases for child care centers that seek to purchase school buses for their school-aged children. The leadtime required for delivery of a school bus may be two or three months longer than for a large van, but this should not present a problem for organizations that follow a systematic plan for vehicle replacement. We are currently working with our partners in state and local communities, and in the school bus industry, to see what can be done to reduce the time between a school bus order and its delivery.

For your information, because of the increasing number of pre-school aged children being transported by school buses and the pupil transportation community's request for guidance on how to safely transport these children, NHTSA released a February1999 Guideline for Transporting Pre-school Aged Children in School Buses. A copy of this document is enclosed for your information.

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
Enclosures (4 items)
ref:VSA#Part 571.3

1. Please note that NHTSA has never stated that day care facilities that provide only custodial care are "schools." NHTSA's laws do not affect new bus sales to child care facilities that are not significantly involved in transporting school aged children "to or from" school. The Cote letter could affect the facility if it is involved in transporting children to or from school.

ID: 19283.ogm

E. Pluribus Law Firm, P.C.
P.O. Box 326
Leland, MI 49654

Re: FMVSS 209

Dear Sir or Madam:

This responds to your letter concerning the test requirements of Standard No. 209, Seat Belt Assemblies. Your questions relate to provisions addressing the performance of seat belt buckles under this safety standard. Specifically, you ask several questions about what you describe as the "partial engagement" provisions of Standard No. 209. Your seven questions, and our response to each question are provided below.

l. How does NHTSA define "partial engagement" under FMVSS 209 3.21 & 5.27?

ANSWER: We note that Standard No. 209 does not contain either section you refer to in your question. However, S4.3(g) and S5.2(g) of Standard No. 209, respectively, each use the phrase "partial engagement" in describing the minimum performance criteria and the test procedures for assessing buckle performance. Under S4.3, a seat belt buckle with a metal-to-metal buckle must separate when subjected to a force of not more than 22 newtons 95 pounds) or less when in any position of "partial engagement." The meaning of the phrase "partial engagement" is not defined in Standard No. 209 and has not been previously interpreted by NHTSA insofar as it applies to this particular standard. We believe that "partial engagement" is that position where the male end and the female receptacle of a seat belt assembly is neither fully engaged and latched nor fully disengaged. Therefore, the two components are partially engaged when the male end is inserted into the receptacle but has not been inserted to the point where the latching mechanism has closed.

2. Is "partial engagement" one of the phenomena which NHTSA is concerned about in the language of FMVSS 209 3.5 - "Buckle release mechanism shall be designed to minimize the possibility of accidental release"?

ANSWER: No. As used in this Standard, "partial engagement" is not a phenomenon but is a state in which the buckle assembly is placed to test the resistance of the assembly to separation or disengagement when it is not in the fully latched position. The requirement in S4.1(e) that buckle release mechanisms be designed to minimize the possibility of accidental release is intended to provide some assurance that buckles will not be inadvertently released once in the latched position.

3. Is it correct that FMVSS 209 3.21 preclude [sic] certification of any buckle which requires more that 5 lbs. to release from any position of partial engagement? Specific reference should be made to the language "a metal buckle shall separate when in any position of partial engagement by a force of not more than 5 pounds (2.3 Kg)" in interpreting this provision.

ANSWER: Again, we note that Standard No. 209 does not contain the section cited in your question. However, the language cited in your question is found in S4.3(g) of the Standard. If this is, in fact, that section that your question refers to, the answer is yes.

4. Assuming no testing of maximum engagement is required under FMVSS 209 5.27 if it is determined that partial engagement is not possible "by means of a technique representative of actual use", how important is it to conduct a fair and adequate test of "representative use?"

ANSWER: In answering this question, we assume that you are referring to S5.2(g) of Standard No. 209. In certifying compliance with a standard, manufacturers must make efforts to ensure that they have exercised due care. If the agency testing shows that an apparent noncompliance exists with a vehicle or item of equipment, the manufacturer is asked to show the basis for its certification that the vehicle or equipment complies with the relevant safety standard or standards. If there is a noncompliance, the manufacturer must conduct a recall campaign to remedy the problem. In addition, the manufacturer is subject to civil penalties unless it can establish that it exercised "due care" in the design and manufacture of the product and in the checks (through actual testing, computer simulation, engineering analyses, or other means) to ensure compliance, but nevertheless did not have reason to know that the vehicle or item of equipment did not comply with the safety standards.

5. What is a fair and adequate test to determine "whether partial engagement is possible by means of a technique representative of actual use" under FMVSS 209 5.27?

ANSWER: This agency has long stated that it is unable to judge what efforts would constitute "due care" in advance of the actual circumstances in which a noncompliance occurs. What constitutes "due care" in a particular case depends on all relevant facts, including such things as the limitations of current technology, the availability of test equipment, the size of the manufacturer, and, above all, the diligence exercised by the manufacturer.

6. Would the NHTSA interpretations provided above be the same in 1988-91 as they have been provided in response to the request for interpretation herein.

ANSWER: Yes.

7. If the response to request No. 6 is negative, please identify all interpretations which would have been different and the underlying basis for the change in interpretation between 1988-91 and present.

ANSWER: See the answer to item 6 above.

I hope you find this information helpful. If you have any other questions, please contact Otto Matheke of my staff at this address or by phone at (202) 366-2992.

Sincerely,
Frank Seales, Jr.
Chief Counsel
ref:209
d.7/8/2000

ID: 1930y

Mr. Ted Aston
3218 Sheffield Place
Concord, CA 94518

Dear Mr. Aston:

This is in reply to your letter with respect to your wish to import motor vehicle parts from England, to be used in the construction of a kit car for your own use. I regret the delay in responding.

You have informed us that you are not importing parts controlled by the Federal motor vehicle safety standards, such as "lights, tires, brake hoses, glazing materials," or "the engine, transmission, wheels, instruments, and miscellaneous items that are readily available here". Instead, you will be importing "body parts, frame parts, suspension and some steering parts, some electrical parts and the gas tank."

From your description, we believe that your intention is to import motor vehicle equipment and not a motor vehicle. The only items of motor vehicle equipment which are covered by the Federal motor vehicle safety standards, and hence must comply or be brought into compliance with those standards are: brake hoses, brake fluid, lighting and reflective devices, passenger car tires, retreaded tires, tires and rims for vehicles other than passenger cars, wheel covers, warning devices, glazing, seat belt assemblies, and child seating systems. If the motor vehicle equipment you are importing includes none of these items, then the equipment may be entered without the necessity of giving a bond for the production of a statement that it has been brought into compliance.

I hope that this letter is helpful to you.

Sincerely,

Stephen P. Wood Acting Chief Counsel

ref:VSA d:8/7/89

ID: 1931y

Don A. Norton, Esq.
Levinson, Murray & Jensen, P.C.
Suite 400
312 West Randolph Street
Chicago, IL 60606

Dear Mr. Norton:

This is in reply to your letter with respect to compliance of imported motor vehicles with the Federal standard relating to vehicle identification numbers (VIN). I regret the delay in responding.

You have asked "in what manner does the importer affix the vehicle identification number to the tag that is to be located so as to be visible from the outside of the vehicle through the left portion of the windshield? Is the proper procedure to acertain the proper chassis number of the vehicle, and then to fashion, emboss, and affix a plate of any design that would comport with the visibility regulations," or is it affixed by the State authority that licenses the vehicle.

Compliance with any Federal motor vehicle safety standard is the responsibility of the importer of any vehicle not originally manufactured to comply with the standards. Compliance with Standard No. ll5 requires affixation of the VIN in the location you described (paragraph S4.6). The VIN label should be affixed by the person conforming the vehicle, as compliance with all Federal motor vehicle safety standards, including Standard No. ll5, must be demonstrated simultaneously in order to satisfy Federal requirements. A State does not affix VINs.

In response to a request you made for information, please note that we have searched our records and find no l98l or other model Mercedes-Benz with the serial number WDB10704612000486.

Sincerely,

Stephen P. Wood Acting Chief Counsel /ref:115 d:8/7/89

ID: 19323.wkm

Mr. Michael L. Mack
Bosch Automotive Proving Grounds
Bosch Braking Systems Corporation
32104 State Road 2
New Carlisle, IN 46552-9605

Dear Mr. Mack:

Please pardon the delay in responding to your letter to this office in which you referred to paragraph S5.6.2 of Federal Motor Vehicle Safety Standard (Standard) No. 121, Air brake systems, and asked whether, after activating the parking brake and releasing the service brake, the vehicle would be allowed to "roll a bit" before the parking brake takes hold. The answer is a qualified yes.

Paragraph S5.6.2 of Standard No. 121 provides:

Grade holding. With all parking brakes applied, the vehicle shall remain stationary facing uphill and facing downhill on a smooth, dry portland cement concrete roadway with a 20-percent grade, both

(a) When loaded to its GVWR, and

(b) At its unloaded vehicle weight plus 500 pounds (including driver and instrumentation).

We assume that Bosch is referring to the distance traveled during brake "wrap-up" (partial revolution of the braked wheels to enable the brake shoes to reach peak torque). Although the standard is silent on this issue, the agency discussed it in a February 8, 1990 Federal Register notice (55 FR 4447-4453, copy attached), stating that some small amount of movement, on the order of several inches, can result during the transition from the service brake application to the parking brake application. Therefore, we would not consider such small amount of movement during brake wrap-up to be in violation of the grade holding requirements of Standard No. 121.

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

Sincerely,
Frank Seales, Jr.
Chief Counsel
ref:121
d.7/2/99

ID: 1932y

Mr. John Schroeter
August Industries
26717 216th Av., S.E.
Maple Valley, WA 98038

Dear Mr. Schroeter:

This responds to your letter asking for information about the application of Federal safety standards to a head restraint that attaches to the rear window of pickup trucks. I regret the delay in responding. I hope the following information is helpful.

By way of background information, the National Highway Traffic Safety Administration (NHTSA) is authorized by the National Traffic and Motor Vehicle Safety Act to issue Federal motor vehicle safety standards that set performance requirements for new motor vehicles and items of motor vehicle equipment. NHTSA is not authorized to certify or approve motor vehicles or motor vehicle equipment for compliance with our Federal motor vehicle safety standards. Instead, under the National Traffic and Motor Vehicle Safety Act (copy enclosed), each manufacturer of a motor vehicle or item of motor vehicle equipment is responsible for certifying that its products meet all applicable safety standards. The following represents our opinion based on the information provided in your letter.

There is currently no Federal motor vehicle safety standard that is directly applicable to the product you wish to manufacture and sell. Our standard for head restraints (Standard No. 202) applies only to completed new passenger cars and not to a head restraint device sold as an item of "aftermarket" equipment for pickup trucks.

However, there are other Federal laws that indirectly affect your manufacture and sale of the head restraint device. Under the Safety Act, your device is considered to be an item of motor vehicle equipment. As a manufacturer of motor vehicle equipment, you are subject to the requirements in sections 151-159 of the Safety Act concerning the recall and remedy of products with defects relating to motor vehicle safety. I have enclosed an information sheet that briefly describes those responsibilities. In the event that you or NHTSA determines that your head restraints contain a safety related defect, you would be responsible for notifying purchasers of the defective equipment and remedying the problem free of charge. Safety Standard No. 302, Flammability of Interior Materials (copy enclosed), would also affect your head restraint if your product is installed by a commercial business on either new or used vehicles. A manufacturer installing your head restraint device on a new truck prior to certifying the truck as complying with all applicable Federal motor vehicle safety standards, as required by the Safety Act, has certain responsibilities relating to that obligation to certify. Standard No. 302 establishes flammability resistance requirements for trucks that must be met by certain vehicle components, including head restraints. The new vehicle manufacturer that installs your product on the new vehicle would have to certify the vehicle's compliance with Standard No. 302, and thus would be required to ensure that the head restraint device conforms to the flammability resistance requirements of the standard.

A commercial business that installs the head restraint on new or used vehicles would be subject to statutory considerations that affect whether the business may install your product on a vehicle without violating the Safety Act. Section 108(a)(2)(A) of the Act states: "No manufacturer, distributor, dealer, or motor vehicle repair business shall knowingly render inoperative ... any device or element of design installed on or in a motor vehicle or item of motor vehicle equipment in compliance with an applicable Federal motor vehicle safety standard ..." This section requires manufacturers, distributors, dealers or motor vehicle repair businesses (i.e., any person holding him or herself out to the public as in the business of repairing motor vehicles or motor vehicle equipment for compensation) installing your head restraint device on new or used vehicles to ensure that the addition of the apparatus would not negatively affect the compliance of any component or design on a vehicle with applicable Federal safety standards. For example, the commercial entity must ensure that the addition of the device does not degrade from the safety provided by flammable-resistant materials in the vehicle's interior compartment which have been installed in accordance with Standard No. 302. Installation of rapidly burning materials could vitiate the compliance of the materials which were present in the vehicle at the time of its sale to the first consumer and were certified as meeting FMVSS No. 302. Section 109 of the Act specifies a civil penalty of up to $1,000 for each violation of /108.

However, the prohibitions of /108(a)(2)(A) do not apply to the actions of a vehicle owner in adding to or otherwise modifying his or her vehicle. Thus, a vehicle owner would not violate the Safety Act by installing the head restraint, even if doing so would negatively affect some safety feature in his or her vehicle.

In addition to the materials described above, I am also enclosing a Federal Register notice (53 FR 50047) that NHTSA issued on December 13, 1988, proposing to extend the applicability of Standard No. 202 to light trucks and vans. NHTSA has proposed to make this extension effective September 1, 1991. We expect to announce the agency's next step in the rulemaking proceeding by this fall.

Please feel free to contact us if you have further questions.

Sincerely,

Stephen P. Wood Acting Chief Counsel

Enclosures

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