Interpretation ID: nht88-2.15

TYPE: INTERPRETATION-NHTSA

DATE: 05/04/88

FROM: AUTHOR UNAVAILABLE; Erika Z. Jones; NHTSA

TO: Alberto Negro -- Director, Fiat Research & Development -- U.S.A. Branch

TITLE: FMVSS INTERPRETATION

TEXT:

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

This responds both to your revised report, dated January 20, 1988, pursuant to 49 C.F.R. Part 585, on behalf of Alfa Lancia Industriale S.p.A. (Alfa Romeo), covering compliance with the automatic restraint "phase-in" requirements during the 1987 producti on year, and to your February 4, 1988, letter to Stephen Wood, our Assistant Chief Counsel for Rulemaking, seeking an interpretation of Standard No. 208, Occupant Crash Protection (49 CFR S571. 208). Specifically, your question concerns whether Fiat may exclude automatic restraint-equipped convertibles from its determinations of annual production for the purpose of calculating the number of passenger cars that must comply with the automatic restraints requirements during the phase-in period.

Alfa Romeo, a subsidiary of Fiat, equipped some of its convertibles with automatic restraints during the 1987 model year, and Fiat counted those convertibles toward satisfying the requirement that 10 percent of 1987 production year cars be equipped with automatic restraints. You stated in your February 4 letter that you need clarification of whether Standard No. 208 permits you to exclude from your annual production calculations those convertibles that were equipped with automatic restraints and that we re counted in determining whether the requisite percentage of production complied with the automatic restraint requirements. In other words, you wish to know whether Fiat may "count" Alfa Romeo convertibles equipped with automatic seat belts for the purp ose of satisfying the 108 "phase-in" requirement for production year 1987, found at @4.1.3.1.2 of Standard No. 208, while excluding those same convertibles from the annual vehicle production calculations covering the 1987 production year.

The answer to your question is that Standard No. 208 does not allow Fiat to exclude from its annual production calculations any convertibles that comply with the automatic restraint requirements set forth in @4.1.2. 1 of the standard. Section @4.1.3.1.2 of Standard No. 208 specifies that the amount of passenger cars that comply with the automatic restraint production. Under these provisions, Fiat elected to use the average annual production from September 1, 1983, through August 31, 1986, for its 1987 m odel year report.

For the period of September 1, 1986, to August 31, 1987 section @4.1.3.3.3 of Standard No. 208 provides a single exception from the requirement to include all of a manufacturer's cars in determining annual production. Under that exception, a manufacturer has the following option in calculating annual production:

A manufacturer may exclude convertibles which do not comply with the requirements of @4.1.2.1, when it is calculating its average annual production under @4.1.3.1.2(a) or its annual production under @4.1.3.1.2(b). (Emphasis added.)

The same single exception is set forth in section @4.1.3.2.3 for the September 1, 1987, to August 31, 1988 reporting period, and in section @4.1.3.3.3 for the September 1, 1988, to August 31, 1989 reporting period. This exception expressly permits manufa cturers to exclude convertibles that do not comply with @4.1.2.1 from such calculations . However, this language does not permit manufacturers to exclude convertibles that are certified as complying with @4.1.2.1 from such calculations.

An old principle of legal interpretation is expressed in the maxim "expressio unius est exclusio alterius": literally, the expression of one thing is the exclusion of another. Applying this principle to Standard No. 208, one would conclude that since the standard was drafted to provide one means of excluding convertibles from calculations of annual production, the standard does not allow any other means of excluding convertibles from those calculations. In other words, since the standard allows you to e xclude convertibles that do not comply with @4.1.2.1 when calculating annual production, the absence of a similar provision for convertibles that comply with @4.1.2.1 means that convertibles that are certified as complying cannot be excluded.

This interpretation does not raise any questions about the January 20 report's exclusion of all convertibles produced between September 1, 1983, and August 31, 1986, since your letter states that none of those convertibles complied with @4.1.2.1. However , this interpretation does mean that Fiat cannot exclude the 803 convertibles you reported as complying with @4.1.2.1 when making your 1988 model year calculations, as required by @4.1.3.2, if Fiat again elects to base its calculations on the average ann ual production of passenger cars during the preceding three years, as permitted by @4.1.3.2.2(a). Similarly, if Fiat elects to base its calculations on the actual production between September 1, 1987, and August 31, 1988, as permitted by @4.1.3.2.2(b), F iat cannot exclude convertibles that comply with the requirements of @4.1.2.1. September 1, 1987, and August 31, 1988, as permitted by @4.1.3.2.2(b) , Fiat cannot exclude convertibles that comply with the requirements of @4.1.2.1.

In this letter, we have assumed that the Alfa Romeo convertibles that are equipped with automatic seat belts are certified as complying with the automatic restraint provisions of @4.1.2.1 of Standard No. 208. If this is not the case, then fiat may not "c ount" those vehicles as complying with the automatic restraint phase-in requirements of @4.1.3.1.2 of Standard No. 208. See attached letter dated April 18, 1988 to Mr. Robert Munson of Ford Motor Company. Please notify Mr. George L. Parker, NHTSA's Assoc iate Administrator for Enforcement, within 10 business days of your receipt of this letter, whether the Alfa Romeo automatic seat belts are certified as complying with the automatic restraint requirements of @4.1.2.1 of Standard No. 208.

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

Sincerely,

Erika Z. Jones Chief Counsel

Mr. Stephen P. Wood Assistant Chief Counsel of Rulemaking National Highway Traffic Safety Administration NCC-20, Room 5219 4007th St., S.W. Washington, D.C. 20590

Dear Mr. Wood:

We require clarification of the NHTSA regulation which allows certain vehicle types to be excluded from the set of vehicles which is used to determine passive restraint quotas.

In 49 CFR, Sections @4.l.3.l.3, @4.l.3.2.3, and @4.l.3.3.3 say that "convertibles which do not comply" with passive restraint requirements may be excluded from the set of vehicles which is used to determine the quota. We need to know whether convertibles which do comply with passive restraint requirements may also be excluded from the quota set.

On January 19, 1988 we presented this question by telephone to NHTSA and were told that convertibles which do comply could be excluded. Furthermore, we have reviewed the applicable Federal Register and found nothing within them that prohibited the exclus ion of convertibles which do comply.

Nevertheless, upon reviewing our passive restraint report (dated January 20, 1988) NHTSA expressed some doubt about whether convertibles which comply could be excluded. The doubt arose not because the report calculations were suspect, as all of the exclu ded convertibles in that report were without passive systems but rather because it was not clear whether we would be including complying convertibles in subsequent quota calculations.

We urgently need an official decision from NHTSA on this matter so that we may accurately forecast our future passive restraint liabilities. Hence, a prompt response will be most appropriate.

If you have any questions, please contact my office. Sincerely yours,

Alberto Negro Director