Fred H. Pritzker, Esq.
Pritzker & Meyer, P.A.
Suite 1275 Peavey Building
730 Second Avenue South
Minneapolis, Minnesota 55402

Dear Mr. Pritzker:

This concerns your August 29, 1995 letter about the replacement of a rear seat in a 1993 GEO Tracker with a speaker box. In response to your request that we speak with you about the issues raised in that letter, Mr. Edward Glancy of my staff spoke with you by telephone. In that conversation, you requested a written opinion. Our opinion is set forth below.

According to your letter, the son of the Tracker owner took the vehicle to the local outlet of a national electronics "super store" to upgrade the vehicle's automobile stereo equipment. An employee of that store removed the rear seat and replaced it with a speaker box. As part of this process, the female portion of the seat belt buckle was removed. You stated that the speaker box has a ledge not unlike a bench-type seat, the speaker box was strong enough for a person to sit on, and was carpeted.

You represent a person who was sitting on this speaker box when the vehicle was involved in a serious collision, and believe that the electronics company violated the "make inoperative" provision of Federal law, 49 U.S.C. 30122(b).

As Mr. Glancy explained to you by telephone, NHTSA cannot make a determination as to whether a company violated the "make inoperative" provision outside a compliance proceeding. I can, however, provide general information on how this provision applies in such a situation.

By way of background information, the National Highway Traffic Safety Administration (NHTSA) is authorized to issue Federal motor vehicle safety standards applicable to the manufacture and sale of new motor vehicles and items of motor vehicle equipment. NHTSA has exercised this authority to establish Federal Motor Vehicle Safety Standard No. 208, Occupant Crash Protection (49 CFR 571.208), which specifies performance requirements for the protection of vehicle occupants in crashes. Standard No. 208 required model year 1993 passenger cars and other light vehicles to have a Type 2 (lap/shoulder) seat belt assembly at each forward- facing rear outboard designated seating position, and either a Type 1 (lap) or Type 2 seat belt assembly at all other rear designated seating positions.

NHTSA's safety standards apply only to new motor vehicles and new motor vehicle equipment. However, section 30122(b) applies in the case of used as well as new vehicles. That section reads as follows:

A manufacturer, distributor, dealer, or motor vehicle repair business may not knowingly make inoperative any part of a device or element of design installed on or in a motor vehicle or motor vehicle equipment in compliance with an applicable safety standard prescribed under this chapter unless the manufacturer, distributor, dealer, or repair business reasonably believes the vehicle or equipment will not be used (except for testing or a similar purpose during maintenance or repair) when the device or element is inoperative.

I can offer the following thoughts concerning how section 30122(b) would apply in the context of a manufacturer, distributor, dealer or motor vehicle repair business removing rear seat belts. First, electronics companies which install stereo equipment in motor vehicles are subject to section 30122(b), given the broad language "manufacturer, distributor, dealer or motor vehicle repair business."

Second, some specific examples will illustrate how answering the question of whether a particular action Amakes inoperative@ a device installed in compliance with a Federal safety standard depends on the underlying factual circumstances. As noted above, under Standard No. 208, seat belts were required to be installed at the rear designated seating positions in the Tracker. The definition of "designated seating position," set forth in 49 CFR 571.3, reads as follows:

Designated seating position means any plan view location capable of accommodating a person at least as large as a 5th percentile female, if the overall seat configuration and design and vehicle design is such that the position is likely to be used as a seating position while the vehicle is in motion, except for auxiliary seating accommodations such as temporary or folding jump seats. . . .

The simple removal of rear seat belts from designated seating positions, without other modifications to a vehicle, would obviously make inoperative a device, i.e., seat belts, installed in compliance with Standard No. 208. Similarly, the removal of rear seat belts, coupled with replacing the rear seat with another rear seat, would make the seat belts inoperative (assuming the rear seat belts were not replaced). However, if rear seat belts were removed as part of permanently converting a passenger van to a cargo van by removing the rear seat, the removal of the seat belts would not make inoperative a device installed in compliance with a safety standard. This is because Standard No. 208 would not have required rear seat belts in the absence of rear designated seating positions.

Your letter raises the question of whether a speaker box of the type installed by the electronics company would be considered to provide designated seating positions. I have enclosed a copy of the final rule establishing the designated seating position definition (44 FR 23229, April 19, 1979). As discussed in that notice, any position likely to be used while the vehicle is in motion will be considered a designated seating position. The notice includes several discussions which are relevant to the issue of whether a position is likely to be used while the vehicle is in motion. Included is a discussion that a manufacturer would not be responsible for abusive or unorthodox use of a particular position.

If you have further questions, please feel free to call Mr. Glancy at (202) 366-2992.

Sincerely,

Samuel J. Dubbin Chief Counsel

Enclosure

ref:208#VSA d:12/22/95