ID: nht88-4.30

TYPE: INTERPRETATION-NHTSA

DATE: 12/09/88 EST

FROM: ERIKA Z. JONES -- NHTSA CHIEF COUNSEL

TO: ERMAN JACKSON -- SALES MANAGER-TRAILMASTER TANKS, INC.

TITLE: NONE

ATTACHMT: APRIL 18, 1988 FROM JACKSON TO JONES

TEXT: This is in response to your letter which requested our interpretation of the applicability of certification requirements to your company. You indicate that you attached a new body to a truck chassis that has been in service for a number of years. Your customer believes that Trailmaster Tanks, Inc., (Trailmaster) should have issued a new final-stage manufacturer certificate at the time of the mounting of the new body. Trailmaster, on the other hand, is of the opinion that the final-stage manufacturer certificate is only issued when the chassis is new. You asked me whether your company was required by Federal law or regulations to certify that the new body on the used truck chassis complies with all applicable safety standards. The answer to your qu estion depends on whether the used chassis consisted of any new components and, if not, whether the used components of the chassis came from different vehicles, as explained below.

As a general matter, our safety standards and certification requirements apply to vehicles only before the first sale of the vehicle in good faith for purposes other than resale. Generally speaking, vehicles that are produced from a chassis that has alr eady been sold to the public are notconsidered new vehicles, and are not subject to our safety standards or certification requirements. However, there is a special provision in our regulations for vehicles that are produced by combining new and used comp onents. This provision is in 49 CFR @ 571.7 (e), which provides:

(e)Combining new and used components. When a new cab is used in the assembly of a truck, the truck will be considered newly manufactured for purposes of paragraph (a) of this section, the application of the requirements of this chapter, and the Act, unless the engine, transmission, and drive axle(s) (as a minimum) of the assembled vehicle are not new, and at least two of these components are from the same vehicle.

This regulation means that a party attaching a new body to an old chassis is not required to attach a new certification label or make any certification under Federal law if that party simply uses the engine, transmission, and drive axle that are installe d on the old chassis at the time the party receives the old chassis. Based on your statement that the truck "was not modified in any way" at the time the new body was installed on the old chassis, this would appear to be the case in your situation. If this is true, you were not required to make any certification in connection with this vehicle.

On the other hand, if you substituted a new engine, transmission, or drive axle in the old chassis when you attached the new body, the vehicle was considered newly manufactured under @571.7(e) and your company was required to certify the vehicle in accor dance with Part 567. Similarly, if you substituted used components on the old chassis at the time you attached the new body, the vehicle was considered newly manufactured unless at least two of the three specified components (engine, transmission, and d rive axle) were from the same vehicle.

It should be noted that, even if the vehicle created when you attached a new body to a used truck chassis did not result in a newly manufactured vehicle pursuant to 49 CFR @ 571.7(e), your company was still subject to the provisions of section 108(a)(2)( A) of the Safety Act. This section prohibits any manufacturer, distributor, dealer or motor vehicle repair business from "knowingly rendering inoperative" any equipment or element of design installed on a vehicle in compliance with safety standards. In other words, no manufacturer, dealer, distributor, or repair business can modify used vehicles by removing or defeating any of the systems or devices that were installed on the vehicle to comply with an applicable safety standard. The modifier in the f irst instance must determine if the modifications constitute a prohibited "rendering inoperative" violation. However, the agency can reexamine the modifier's determination in the context of an enforcement proceeding.

I believe you can use the information presented in this letter to determine whether or not the vehicle your company made was considered a newly manufactured vehicle, subject to our safety standards and certification regulations. If you have any further questions or need additional information, please feel free to contact us.

ID: nht88-4.31

TYPE: INTERPRETATION-NHTSA

DATE: 12/09/88 EST

FROM: ERIKA Z. JONES -- NHTSA CHIEF COUNSEL

TO: WILLIAM SHAPIRO -- VOLVO CARS OF NORTH AMERICA

TITLE: NONE

ATTACHMT: FEDERAL MOTOR VEHICLE SAFETY STANDARD NUMBER 106, BRAKE HOSES-REQUEST FOR INTERPRETATION; DATED 6-7-88, OCC-2154, FROM WILLIAM SHAPIRO

TEXT: This responds to your letter concerning the testing of hydraulic brake hose assemblies to the whip resistance requirement (S5.3.3) of Standard No. 106, Brake Hoses. I regret the delay in responding.

Your question relates to Table II of Standard No. 106, which specifies the amount of slack that should be introduced when mounting brake hose assemblies on the whip test apparatus. (The amount of the hose indicated as "slack" in Table II is the differen ce between the projected length of the hose assembly (when mounted in the whip test machine) and the free length of the hose while maintained in a straight position.) Slack must be present in the hose when mounted on the whip test machine to enable the p roper "whipping" movement of a brake hose assembly. Without slack, an assembly would probably be incapable of withstanding any rotation of the movable header of the whip test apparatus described in Standard No. 106 without rupturing.

Table II specifies the amount of slack for some sizes of assemblies, and not for others. You ask whether a hydraulic brake hose assembly of a size falling in the latter category -- viz., an assembly comprised of a brake hose that is 19 to 24 inches in f ree length, and which is more than one-eighth inch or three millimeters (mm.) in diameter -- "need not be tested to meet or exceed the whip resistance requirement" of the standard.

With regard to NHTSA's Standard No. 106 compliance testing, your understanding is correct that Table II does not specify the amount of slack for testing assemblies of the size you describe. Due to the absence of the slack specification, NHTSA does not r equire testing of such assemblies to the whip resistance requirements of the standard.

With regard to your certification that the brake hose assemblies you manufacture comply with all applicable requirements of Standard No. 106, you are correct that hydraulic brake hose assemblies of the size you describe are not subject to the whip resist ance requirements. However,

the agency urges manufacturers to ensure that these assemblies perform in a safe manner while subject to environmental conditions of vehicle operations which may result in flexing of the brake hose or brake hose assembly.

Please contact my office if you have further questions.

ID: nht88-4.32

TYPE: INTERPRETATION-NHTSA

DATE: 12/09/88 EST

FROM: ERIKA Z. JONES -- NHTSA CHIEF COUNSEL

TO: VICKY JOHNSON -- OFFICE OF THE CHIEF COUNSEL, KANSAS DEPARTMENT OF TRANSPORTATION

TITLE: NONE

ATTACHMT: ATTACHED TO LETTER DATED 5-11-88 TO: ERIKA Z. JONES, NHTSA, FROM VICKY S. JOHNSON, KANSAS DEPT. OF TRANSPORTATION

TEXT: This is a response to your letter asking for my comments on a school transportation issue that has arisen in Kansas. I apologize for the delay in this response. You explained that, in the past, many school districts in your State used vans with more th an ten seating positions to transport school children, even though these vehicles were not certified as meeting Federal school bus standards. According to your letter, you informed those school districts that there are "civil liability risks" associated with transporting students in vehicles that do not meet Federal school bus standards. Further, you said you informed those districts that a manufacturer or dealer who sells a school district a bus that is not a certified school bus may be in violation of Federal law. According to your letter, most of those school districts now recognize the "considerable risks" associated with this practice.

You are concerned that some of these districts are now purchasing the same vehicles that were previously certified as buses, but the vehicles now have only ten seating positions. Accordingly, the vehicles are now certified by the manufacturer as multipu rpose passenger vehicles (MPVs). You believe that this situation is not a violation of Federal law because dealers are no longer selling school districts "buses" that are not certified as school buses. However, you believe there is still a considerable risk of civil liability for the school districts in the event of a crash. You asked for our comments on this practice.

Generally speaking, there is no violation of Federal law when a dealer sells a properly certified MPV to a school district. On the other hand, NHTSA has maintained a long-standing position that if a dealer sells an MPV or bus capable of being converted and used as a school bus to a school or a school bus contract operator, that dealer is responsible for ensuring that the vehicle complies with all applicable school bus standards. (40 FR 60033, 60034, December 31, 1975.) For example, let us assume that a dealer sells a school district a vehicle that is certified as an MPV by its manufacturer. The vehicle has ten designated seating

positions when it is delivered to the dealer, but is large enough to accomodate an additional bench seat, which would result in the vehicle having at least 13 designated seating positions. In this instance, a dealer who sells such a vehicle to a school district would have violated the prohibition in section 108(a)(1)(A) of the National Traffic and Motor Vehicle Safety Act (15 U.S.C.

1397(a)(1)(A) against selling vehicles that do not comply with all applicable safety standards.

In essence, NHTSA has concluded that a dealer may not legally sell a school district a vehicle that is capable of being converted into a school bus, unless:

1. that vehicle is certified as complying with applicable school bus standards; or

2. the dealer has reason to believe that the buyer has no intent of converting and using the vehicle as a school bus.

If the dealer is uncertain of the buyer's intent, the agency has suggested that the dealer request a written statement of purpose from the buyer. (Id.) The agency has taken this position because the dealer frequently is the person in the distribution ch ain with the best knowledge of how a buyer intends to use a vehicle.

Applying this reasoning to the situations described in your letter, the dealers selling MPVs to school districts might have done so in violation of Federal law. If the MPVs in question were capable of being converted into school buses, and the dealer had reason to believe that the purchasing school district intended to convert the vehicles to school buses, the dealer could only sell the MPV to the school district if the vehicles were certified as conforming to all applicable school bus standards. Your letter did not provide enough information for us to offer an opinion on any such potential liability. If you know of instances where a dealer may have sold vehicles to a school district under circumstances such as I describe here, please report this inf ormation to the Office of Enforcement, NHTSA, Room 6113, NEF-30 at the address on this letterhead.

With respect to your question about the risk of civil liability in the event one of these vehicles is in a crash, that is a question of State, not Federal law. I am not qualified to offer an opinion on how the matter would be resolved under Kansas law. I suggest that you contact the Attorney General for the State of Kansas to get an opinion about how the laws of Kansas would apply in such a situation.

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

ID: nht88-4.33

TYPE: INTERPRETATION-NHTSA

DATE: 12/09/88

FROM: ERIKA Z. JONES -- CHIEF COUNSEL NHTSA

TO: JACK MCCROSKEY; GLENDA SWANSON LYLE -- REGIONAL TRANSPORTATION DISTRICT DENVER COLORADO

TITLE: NONE

ATTACHMT: LETTER DATED 09/13/88 TO LARRY COOK FROM JACK MCCROSKEY AND GLENDA SWANSON LYLE, OCC - 2539; LETTER DATED 08/26/88 TO MARVIN ORNES FROM RE MORGAN; LETTER DATED 09/09/87 TO R. ROGERS FROM RE MORGAN, RE GOODYEAR MILEAGE TIRES

TEXT: Dear Mr. McCroskey and Ms. Lyle:

This responds to your letter of September 13, 1988, asking for our advice on potential safety hazards and legal liabilities that might result from ignoring the speed restrictions on the tires used on your transit buses. You stated that your entity opera tes three types of bus service in the State of Colorado. The first type is a local bus, operated primarily in areas where the speed limit is 35 miles per hour (mph); the second type is an express bus, operated primarily in areas where the speed limit is 55 mph; and the third type is a regional bus, operated primarily on freeways with speed limits of 55 to 65 mph. You were interested primarily in the tires used on your express buses.

You stated that you use two types of speed-restricted tires "almost interchangeably" on the express buses. One of your speed-restricted tire types is the XT, which is speed-restricted to a maximum speed of 55 mph. The other is the DXT, which is speed-r estricted to a maximum speed of 35 mph. Since the express buses are operated primarily at speeds of 55 mph, you contacted the tire manufacturer to get its advice on the acceptability of using tires that are speed-restricted to 35 mph on these buses. Yo u enclosed copies of correspondence you received from the manufacturer, stating that its DXT and XT tires are identical, except that the DXT tire has 7/32 of an inch more undertread. The manufacturer's advice was that the tire that is speed-restricted t o a maximum of 35 mph "may be used at higher speeds; but not for sustained operation." You asked whether it is advisable for your entity to continue using the tires that are speed-restricted to 35 mph on your express buses, which operate primarily at 55 mph. We strongly recommend that you not do so.

There are some notable advantages associated with speed-restricted tires, including enhanced load-carrying capabilities and greater resistance to tire damage from hitting objects in the road or curbs. However, the greater undertread on speed-restricted tires also means that the tires will generate higher temperatures at high speed than a comparable non-restricted tire. Higher temperatures inside the tire increase the chances of a tire failure at high speeds.

2

NHTSA carefully considered both the advantages of speed-restricted tires and the need to ensure that such tires are properly used when it was developing Standard No. 119, New Pneumatic Tires for Motor Vehicles Other Than Passenger Cars (49 CFR @571.119; copy enclosed). Every new bus tire must be certified by its manufacturer as complying with this standard. This agency decided that Standard No. 119 should permit the continued production of speed-restricted tires, but with appropriate safeguards to ens ure that these tires would not be used at higher speeds. Accordingly, Standard No. 119 specifies less stringent high speed and endurance test requirements for speed-restricted tires. Speed-restricted tires for use on vehicles other than motorcycles are exempted from the high speed performance requirements of S6.3 of Standard No. 119. This exemption reflects the fact that the tires are not designed for high speed use. For the same reason, the endurance test schedule for speed-restricted tires consists of a lower test speed and fewer total revolutions of the test wheel, as shown in Table III of Standard No. 119. Hence, the manufacturer of these speed-restricted tires has not certified that these tires comply with the performance requirements of Standa rd No. 119 under conditions exceeding the speed-restriction marked on the tires.

To ensure that the user of speed-restricted tires would not operate the tires at higher speeds than those at which the tires are designed to operate safely, section S6.5(e) of Standard No. 119 requires every speed-restricted tire to have the marking "Max speed mph" on the sidewall. This marking is intended to alert the tire user of the limitations of this tire, so that it will not be repeatedly used at higher speeds. Since your express buses operate primarily at speeds of 55 mph, we urge you not t o equip those buses with tires labeled "Max speed 35 mph." Similarly, since your express and regional buses typically operate at speeds exceeding 55 mph on their routes, we recommend only tires without speed restrictions for these buses.

With respect to your question about potential legal liabilities in the event one of these speed-restricted tires fails while in service on one of your express buses, that is a question of State law. Since I am not familiar with the Colorado law on this subject, I must decline to offer an opinion. However, the Attorney General for the State of Colorado or other local counsel would be able to accurately advise you on Colorado's law in this area.

Sincerely

ENCLOSURE

ID: nht88-4.34

TYPE: INTERPRETATION-NHTSA

DATE: 12/09/88

FROM: ERIKA Z. JONES -- NHTSA CHIEF COUNSEL

TO: DONALD N. STAHL -- DISTRICT ATTORNEY OFFICE OF DISTRICT ATTORNEY BUREAU OF INVESTIGATION

TITLE: MCCOY TIRE SERVICE CENTER D.A. NO. CF696

ATTACHMT: UNDATED LETTER FROM JOHN T FORTH AND DONALD N STAHL TO ERIKA Z JONES; RE MCCOY TIRE SERVICE CENTER D.A. NO. CF696; OCC 1749; LETTER DATED 03/01/88 FROM DAVE TAYLOR TO JOHN FORTH; LETTER DATED 07/13/87 FROM ERIKA Z JONES TO JACK DENIJS; LETTER D ATED 05/19/87 FROM JACK DENIJS TO CHIEF COUNSEL NHTSA; OCC-500; RE COVERED DOT NUMBERS ON REMANUFACTURED TRUCK CASINGS

TEXT: Dear Mr. Stahl:

This responds to your letter asking about requirements concerning the importation of tire casings. According to your letter, a routine inspection by the California Highway Patrol (CHP) of a local school district's buses disclosed recapped tires on a bus which did not have DOT markings on the tires. The CHP learned that the tire casings were originally designed for use by a rubber tire train in Japan and were new tires that had been imported for recapping purposes. The tire casings were imported as sli cks (no tread design), and the slick was removed. The tires were then recapped using the "bondag" process and sold to the school district. You asked whether it is permissible to import this type of tire casing and, if so, whether the particular type of tire casing meets Department of Transportation standards. Your questions are responded to below. Our opinions are based on the facts provided in your letter.

Before addressing your specific questions, I will provide background information about requirements for tires. All tires which are subject to a Federal motor vehicle safety standard must have the symbol "DOT" molded into the sidewall by the manufacturer or retreader, if those tires are to be imported into the United States. This symbol represents a certification by the manufacturer or retreader that the tire complies with all requirements of the applicable safety standards.

New tires for use on school buses are subject to Federal Motor Vehicle Safety Standard No. 119 (49 CFR 571.119). Section S6.5(a) of the standard requires that all new tires for use on motor vehicles other than passenger cars have the DOT symbol molded i nto the sidewall by the manufacturer. Tires without this symbol may not be legally imported. This is also true for used tires manufactured on or after the effective date of Standard No. 119, March 1, 1975, with one narrow exception.

Used tires for use on motor vehicles other than passenger car which have less than 2/32 inch of tread remaining and which are imported solely for the purpose of being retreaded in this country prior to resale may be imported without a DOT symbol on the s idewall. I have enclosed a copy of a June 18, 1981 letter to Mr. Roy Littlefield, which explains in detail the requirements of this narrow exception to the requirements that used tires have a DOT symbol on the sidewall to be legally imported.

No Federal safety standard is applicable to retreaded tires for use on motor vehicles other than passenger cars. They may be imported without certification of compliance by the retreader. However, these tires must have a tire identification number mark ed on the sidewall, per the requirements of 49 CFR Part 574.

Your first question is whether it is permissible to import the type of tire casing at issue. As indicated above, new tires for use on school buses may not be imported without the DOT symbol. However, it is our opinion that the casings at issue are mate rials needing further manufacturing operations to become completed items of motor vehicle equipment, rather than finished items of motor vehicle equipment (tires which could lawfully be used or sold as they are). This opinion is based on the fact that th e casings are being imported as slicks, which generally cannot be used on the public highways under state laws since they have no tread, and since the casings are being imported for purposes of recapping.

Your second question is whether the casings at issue meet Department of Transportation standards. A key issue in answering this question is whether the tires are considered to be retreaded tires or new tires subject to Standard No. 119. It is our opini on that any tires manufactured by applying new tread to new casings are considered new tires rather than retreaded tires, and are subject to the same requirements as any other new tires.

The National Highway Traffic Safety Administration defines "retreated" as "manufactured by a process in which a tread is attached to a casing." The term "casing" is defined as "a used tire to which additional tread may be attached for the purpose of retr eading." See 49 CFR Part 571.117 and 49 CFR Part 574.3(b).

In the situation you described in your letter, the casings were not used tires at the time the "recapping" took place. Instead, they were simply new tires (originally designed for use on a rubber tire train) which were imported for recapping purposes. These casings would not be considered used tires until they have actually been used (presumably on a train prior to importation, or on the highway, with the new tread attached, in the United States.)

Since the tires at issue were not used tires at the time they were recapped, they are not retreaded tires but are instead new tires, subject to Standard No. 119. The tires would appear not to comply with Standard No. 119, given the absence of the DOT sy mbol.

Your letter states that the original manufacturer of the tire has stated that the tires are not suitable by any means for highway use. If the tires are not suitable for highway use after they have been recapped, they may contain a safety-related defect. See 15 U.S.C. 1411 et seq. We note that the defect provisions of the National Traffic and Motor Vehicle Safety Act apply to items of motor vehicle equipment regardless of whether there is an applicable safety standard.

We hope this information is helpful, and we are referring your letter to our Office of Enforcement.

ENCLOSURE

ID: nht88-4.35

TYPE: INTERPRETATION-NHTSA

DATE: 12/09/88

FROM: ERIKA Z. JONES -- CHIEF COUNSEL NHTSA

TO: RICHARD R. LENDER -- PRESIDENT COACHLAND, INC.

TITLE: NONE

ATTACHMT: LETTER DATED 11/10/88, FROM RICHARD R. LENDER, TO NHTSA, OCC 2790

TEXT: Dear Mr. Lender:

This responds to your November 10, 1988 letter concerning the importation of windshields for vintage buses produced from 1955 through 1962. You indicated that these windshields are not certified as complying with Standard No. 205, Glazing Materials (49 CFR @ 571.205), but asserted that the windshields "do meet all other regulations." You suggested that you ought to be permitted to import these windshields even though they are not certified as complying with Standard No. 205, because the windshields wil l only fit buses manufactured between 1955 and 1962, whereas Standard No. 205 did not become effective until January 1, 1968. This suggestion is incorrect. Your company is prohibited by Federal law from importing or selling windshields that are not cer tified as complying with Standard No. 205 if the windshields were manufactured on or after January 1, 1968.

I have recently discussed this topic at length in a September 12, 1988 letter to Mr. Steve Zlotkin (copy enclosed). To briefly repeat, Standard No. 205 requires all items of glazing material for use in motor vehicles manufactured on or after January 1, 1968 (the effective date of the standard) to comply with all applicable requirements of Standard No. 205. It is the date of manufacture of the glazing material itself, not the date of manufacture of the vehicle in which the glazing material will be inst alled, that determines whether the glazing material must comply with all requirements of Standard No. 205.

Your letter indicated that your company conferred with Mr. Francis Armstrong, formerly the director of our Office of Vehicle Safety Compliance, and that you "were given permission" to import similar windshields in 1985. I regret any misunderstanding you may have had of the long-established agency position on this question as a result of this conference. The agency's interpretation that it is the date of manufacture of the glazing that determines whether it is subject to Standard No. 205, not the date of manufacture of the vehicle in which the glazing is to be installed, was first announced in a May 8, 1967 letter to Mr. Earl Kintner (copy enclosed). Every time the agency has been

asked this question for the past 21 years, it has repeated the position originally taken in the letter to Mr. Kintner. If anyone in this agency has ever given you or your company a different response to this question, the response did not reflect the ag ency's position.

Sincerely,

ENCLOSURES

ID: nht88-4.36

TYPE: INTERPRETATION-NHTSA

DATE: 12/09/88

FROM: KEITH A. MCDOWELL -- VICE PRESIDENT -- ENGINEERING TRANSPORTATION PRODUCTS GROUP AMERICAN SEATING CO

TO: OFFICE OF THE CHIEF COUNSEL NATIONAL HIGHWAY TRAFFIC SAFETY ADMINISTRATION

TITLE: NONE

ATTACHMT: ATTACHED TO LETTER DATED 03/22/89 FROM ERIKA Z. JONES -- NHTSA TO KEITH A. MCDOWELL, REDBOOK A33, STANDARD 208, STANDARD 209, STANDARD 210; LETTER DATED 02/25/89 FROM KEITH A. MCDOWELL TO NHTSA

TEXT: Honorable Chief Counsel:

My name is Keith McDowell and I am employed by the American Seating Company as Vice President of Engineering. For your information American Seating is the leading manufacturer of large transit bus seating on the North American Continent. We have long b een an advocate of passenger safety, and our continued concern for safety is evidenced by this letter.

Recently, we have received a number of inquires from bus builders regarding the provision of seat belts on our seats. (It is our belief that this trend is the result of concern generated in the school bus market.) Upon reviewing the current Federal Moto r Vehicle Safety Standards, we find that no seat belt standards apply to passenger seating on large buses over 10,000 pounds GVW. We are currently at a loss as to how to respond in a responsible manner to our customers.

Inquiries from bus builders are generated when a Transit Authority specifies a requirement for seat belts on transit bus bid documents. These procurements are typically 80% funded by the Urban Mass Transit Administration (no doubt, a familiar agency). Unfortunately, no bid specifications outline the standards to use for design and testing of seat belt installations.

Because of the continuing demand from our customers, we are requesting you to provide us guidelines for the design and installation of seat belt assemblies on large buses (over 10,000 pounds GVW). Specifically, these guidelines must address transverse s eat installations (forwarded facing and rearward facing) and longitudinal seat installations (aisle facing).

As you well understand, our need is of the utmost urgency as current bids are involved. It is our opinion that federally funded bus procurements specifying seat belts must include guidelines for belt installation and testing so that all suppliers may bi d competitively, fairly, and above all else, with utmost regard for the safety of the public.

We look forward to your timely response.

Sincerely,

ID: nht88-4.37

TYPE: INTERPRETATION-NHTSA

DATE: 12/09/88

FROM: ERIKA Z. JONES -- NHTSA CHIEF COUNSEL

TO: LANCE E. TUNICK, -- VICE PRESIDENT AND GENERAL COUNSEL MASERATI AUTOMOBILES, INC.

TITLE: NONE

ATTACHMT: LETTER DATED 09/04/85 FROM JEFFREY R. MILLER TO STEPHEN T. WAIMEY AND DEAN HANSELL, STANDARD 208; LETTER DATED 11/10/75 FROM FRANK A. BERNDT TO JOHN B. WHITE, N40-30, SECTION 108(B)(5); LETTER DATED 10/20/88 FROM LANCE E. TUNICK TO ERIKA Z. JON ES, REQUEST FOR INTERPRETATION OF FMVSS 208, OCC 2696

TEXT: Dear Mr. Tunick:

This responds to your October 20, 1988 letter, in which you asked for an interpretation of Standard No. 208, Occupant Crash Protection (49 CFR @ 571.208). More specifically, you noted that section S4.1.3 requires a specified percentage of a manufacturer 's annual production to be equipped with automatic occupant protection. You stated that some vehicles imported into the United States may subsequently be exported to Canada. Since section 108(b)(5) of the National Traffic and Motor Vehicle Safety Act ( 15 U.S.C. 1397(b)(5); the Safety Act) specifies that none of the safety standards apply to vehicles intended solely for export, your company assumes that it should not include vehicles subsequently exported to Canada in its annual production totals when determining compliance with S4.1.3 of Standard No. 208. This assumption is incorrect, as explained below.

In a September 4, 1985 letter to Messrs. Stephen Waimey and Dean Hansell (copy enclosed), we answered the question of how manufacturers that produce cars outside the United States should calculate their annual production to determine compliance with the phase-in requirements of Standard No. 208. That letter explains that foreign-based manufacturers should count the number of vehicles that were produced and certified for sale in the United States, in accordance with 49 CFR Part 567, Certification, durin g the relevant time period to determine their annual production for the purposes of Standard No. 208.

Your letter referred to section 108(b)(5) of the Safety Act, and suggested that this statutory provision means that any vehicles that are imported into the United States and subsequently exported to a different country should not be counted as part of th e manufacturer's annual production. I am happy to explain our view of what is permitted under that statutory provision.

Section 108(b)(5) provides that the requirements in the safety standards "shall not apply in the case of a motor vehicle or item of motor vehicle

equipment intended solely for export, and so labeled or tagged on the vehicle or item itself and on the outside of the container, if any, which is exported." This statutory language establishes three separate conditions that would have to be satisfied to exclude a vehicle from the requirements of the safety standards, including the calculation of a manufacturer's annual production for purposes of Standard No. 208. These three conditions are:

1. The vehicle must be intended solely for export;

2. The vehicle must have a label or tag on it at the time it is imported which shows that the vehicle is intended solely for export; and

3. The vehicle must actually be exported.

We agree with your contention that a vehicle satisfying all three of these conditions would not be subject to the requirements of any of the safety standards, and could properly be excluded from the calculation of a manufacturer's annual production for t he purposes of Standard No. 208. For a similar interpretation regarding imported tires that are intended solely for export and so labeled, see the enclosed November 10, 1975 letter to Mr. John B. White. Of course, it would not be sufficient if only one of these conditions, such as the third one regarding actual exportation, were satisfied.

We are uncertain regarding the facts surrounding the vehicles that have already been imported into the United States and then exported to Canada and thus are unable to give an opinion concerning their satisfaction of the section 108(b)(5) conditions. It should be relatively simple for you to determine whether these vehicles satisfied the first two conditions. Did those vehicles truly just pass through the US on their way to Canada? To what country's standards were those vehicles certified and when? When the vehicles were imported into the United States, your company was required to complete a Form HS-7. That form allows the importer to declare that a vehicle is intended solely for export and that the vehicle bears a label or tag to that effect. W hat type of declaration was made with respect to the vehicles in question?

As to vehicles which Maserati Automobiles, Inc., wishes in the future to import into this country and pass directly through to Canada for sale there, satisfaction of each of the three section 108(b)(5) conditions will assure that the vehicles are not included in the Standard No. 208 calculations.

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

Sincerely,

ENCLOSURES

ID: nht88-4.38

TYPE: INTERPRETATION-NHTSA

DATE: 12/12/88

FROM: DENNIS D. FURR

TO: HOWARD WOLPE -- UNITED STATES HOUSE OF REPRESENTATIVES

TITLE: NONE

ATTACHMT: ATTACHED TO LETTER DATED 02/23/89 FROM DIANE K. STEED TO HOWARD WOLPE, REDBOOK A33, SECTION 103(D) FMVSS 222, HSPG 17; TRANSMITTAL LETTER DATED 12/21/88 FROM HOWARD WOLPE -- CONGRESS TO JAMES BURNLEY

TEXT: Dear Congressman Wolpe,

In response to a phone conversation with one of your staff I would like to ask you to forward the following questions to the Department of Transportation for their response to the individual questions.

I feel that part of Motor Vehicle Safety Program Standard 17 is in direct violation of the National Traffic and Motor Vehicle Safety Act.

I also feel that the manner in which S4.1 in Safety Standard 222 is being interpreted, influences the overloading of the passive restraint system, and nullifies the safety features of the passive restraint system.

Basically, the questions are in regards to the individual seating position for the passenger in the passive restraint system.

QUESTION #1; Is Section 103 (d) of the National Traffic and Motor Vehicle Safety Act enforceable on the States, and school districts, and if so by whom?

QUESTION #2; If it is not enforceable, what is needed to make it enforceable?

QUESTION #3; It is my understanding that Standard 222 is the only enforceable Standard that address the passive restraint system, and is the minimum specifications for the passive restraint system.

Is the specifications in Standard 222 the minimum specifications for the passive restraint system?

QUESTION #4; S4.1 in Standard 222 says the number of seating positions considered to be in a bench seat is expressed by the Symbol "W" and calculated as the bench width in inches divided by 15 and rounded to the nearest whole number.

Is the 15 mentioned in S4.1 the size of the individual seating position for a passenger?

If not, what is the width of the individual seating position?

QUESTION #5; I have been told by NHTSA that Standard 222 is for testing, and applies to the manufactures and is a condition of sale for new school buses.

As a result, NHTSA says the capacity for the standard 39 inch bench seat is 3. 39 divided by 15 is 2.6, and rounded to the next whole number is 3.

I have maintained that S4.1 says rounded to the nearest whole number, and the nearest whole number is 2, and not the next whole number of 3.

Understanding that the 6 tenths represents only 9 inches of the minimum 15 inch seating position for the passive restraint system mentioned in S4.1, and can not be used as a seating position as it is in violation of Section 103 (d) of the National Traffi c and Motor Vehicle Safety Act, understanding that the 9 inches is less than the minimum 15 inch seating position in the applicable standard 222 which is still in effect.

The NHTSA says they carry the 6 tenths to the next whole number to insure that the bench seat is tested for the maximum number of seating positions.

I have maintained that the maximum number of seating positions in the 39 inch bench seat is 2, and there is not any need to carry the 6 tenths to the next whole number, even for testing.

I have maintained that the pounds of force that the symbol "W" is multiplied by should reflect the correct formula for testing the bench seat, and by adding a additional seating position to the bench seat to insure that the bench seat is tested for the m aximum number of seating positions, casts a shadow of dought on the formulas in Standard 222.

Also understanding that some fractional parts of the bench seats when divided by 15 is dropped, and others do not have fractional parts, and reflect the number of seating positions without adding the additional seating position as in the case of the 39 i nch bench seat.

The question is, what is the correct method for determining the number of the minimum 15 inch seating positions for any of the bench seats length?

QUESTION #6; It is my understanding that Safety Program Standard 17 is an elective Standard. In Safety Program Standard 17, under Vehicle Operation, (6) d, Seating (1); Seating shall be provided that will permit each occupant to sit in a seat in a plan view lateral location, intended by the manufactures to provide seating accommodation for a

person at least as large as a 5th percentile female, as defined in 49 CFR 571.3.

It is my understanding that the manufactures have to comply to Standard 222, and by complying, Standard 222, and the 15 inch seating position mentioned in S4.1 is the intent of the manufactures, and the minimum seating position for the passive restraint system.

Regardless whether Standard 17 is, or is not adopted by a State, is Standard 222 the intent of the manufactures?

If not, what is?

QUESTION #7; It is my understanding that if Standard 222 is the minimum specification for the passive restraint system, the seating position for the 5th percentile adult female mentioned in Standard 17, would be in violation of Section 103 (d) of the Nat ional Traffic and Motor Vehicle Safety Act, understanding that the 5th percentile adult female has minimum 15 inch seating position in Standard 222 which still is in effect.

Understanding that NHTSA has in an elective Standard, given directions for the use of a seating position that is less than the seating position mentioned in the enforceable Standard.

Also understanding that because of Standard 17 being an elective Standard by the states, and not a requirement of the manufacture, the 5th percentile adult female is not the intent of the manufactures.

Is the 5th percentile adult female seating position in Standard 17 in violation of Section 103 (d) of the National Traffic and Motor Vehicle Safety Act?

QUESTION #8; The school bus manufactures are rating the capacity of the bus by a 13 inch seating position instead of the 15 inch seating position for the passive restraint system.

It is now my understanding that this is because the NHTSA has carried the fractional part of S4.1 to the next whole number instead of to the nearest whole number as S4.1 says.

I have maintained that the passive restraint system is to protect the individual, and the method used by NHTSA launders the individual minimum 15 seating position mentioned in Standard 222.

By NHTSA saying the 39 inch bench seat has 3 considered seating positions, the school districts are saying 39 divided by 3 is 13, and maintain that the 13 inch seating position is the seating position for the standard 39 inch bench seat, even though it i s the 15 inch seating position mentioned in Standard 222, and not the 13 inch seating position.

At the same time the school districts are being told the manufactures have complied to the requirements of Standard 222.

Is the method the manufactures rate the capacity of the school bus in violation of the National Traffic and Motor Vehicle Safety Act?

QUESTION #9; As a result of the manufactures rating the capacity of the bus by the 13 inch seating position, the third passenger in middle or high school is required to sit in a standard 39 inch bench seat on only 9 inches of the bench seat.

This puts the third passenger outside of the head, and leg impact zones as described in Standard 222, S5.3.1, and S5.3.2., understanding that only one leg is in the impact area, and the head would also miss the intended impact zone, and in the event of a collision that passenger would be thrown out of the bench seat and receive additional injuries that he would not normally receive if he remained inside of the passive restraint systems impact area.

Is the placing of part of the passenger outside of the passive restraint system in violation of the National Traffic and Motor Vehicle Safety Act?

QUESTION #10; According to the Blue Bird letter, the school bus manufactures follow the specifications of the State, and the recommendations of the Tenth National Conference, (1985 Revised Edition, Standards For School Buses and Operations), instead of f ollowing the specification for the seating position in Standard 222.

This is my understanding of a triple violation of Section 103 (d) of the National Traffic and Motor Vehicle Safety Act.

First, the States specifications of a 13 inch seating position is less than the 15 inch seating position in the applicable Standard for the passive restraint system, and does effect the performance of the item of equipment by placing the third person in the standard 39 inch bench seat outside of the impact zones for the head, and legs.

Second, the recommendations of the Tenth National Conference, (1985 Revised Edition, Standards For School Buses and Operations), is the same as above, and in addition is the recommendations in part of the National Association of State Directors of Pupil Transportation Services, a political Subdivision of the States they represent, and they have recommended the 13 inch seating position for the 3-3 seating plan.

And third, the Manufactures have ignored the Standards for the passive restraint system in favor of the States

specifications for a seating position that is less than the minimum 15 inch seating position mentioned in Standard 222 when rating the school buses capacity.

Also understanding that the minimum 15 inch seating position mentioned in Standard 222 is not a estimated seating position, and only a seating position above the minimum 15 inch seating position can be rated, or estimated.

Is the above three items in violation of Section 103 (d) of the National Traffic and Motor Vehicle Safety Act?

QUESTION #11; Standard 222, S4.1 makes reference to a 15 inch seating position. Standard 208, S7.1.1 makes reference to the seating position of the 95th percentile adult male, who has a sitting width of 16.5 inches. Understanding that the seat belt is t o fit a person who is as large as the 95th percentile adult male.

This is the same John Doe sitting in the same length bench seat, and the only difference is in one instance he is sitting on a bench seat in the passive restraint system, and in the other instance he is sitting on the bench seat with seat belts.

Why is there the need of a larger seating position for a person wearing seat belts, than there is for a person seating in the passive restraint system?

QUESTION #12; Because of the trend of wearing seat belts, some school districts are adding seat belts to buses already purchased.

The seat belts are being attached to the 13 inch seating position instead of the 16.5 inch seating position mentioned in Standard 7.1.1. because of the states specifications being 13 inch seating position.

This is also my understanding of a violation of the National Traffic and Motor Vehicle Safety Act.

Is the attachment of the seat belt suppose to be along side of the seating position, or behind the seating position of the 95th percentile adult male?

Respectfully,

ID: nht88-4.39

TYPE: INTERPRETATION-NHTSA

DATE: 12/16/88

FROM: MILTON GURNY -- HEIN SMITH BEREZIN MALOOF AND SPINELLA

TO: JOAN CLAYBROOK -- NATIONAL TRANSPORTATION SAFETY BOARD

TITLE: TITLE SCHWANEWEDE VS. MARBELL, INC., ET AL. OUR FILE NO. 34577

ATTACHMT: ATTACHED TO LETTER DATED 04/05/89, FROM ERIKA Z. JONES -- NHTSA TO MILTON GURNEY, REDBOOK A33(8), STANDARD 218, VSA SECTION 108(A)(1)(A), SECTION 108(A)(2)(A), VSA SECTION 108(B)(1)

TEXT: Dear Ms. Claybrook:

Could you please advise us whether a 1975 Chevrolet Impala was required by Federal Statute and Regulations to have a seat belt and a shoulder belt harnass.

Your cooperation in this regard will be appreciated.

Very truly yours,