ID: nht95-5.14

TYPE: INTERPRETATION-NHTSA

DATE: December 29, 1995 EST

FROM: Samuel J. Dubbin -- Chief Counsel, NHTSA

TO: Mark Heminway -- Director of Fleet Operations, The Hertz Corporation

TITLE: NONE

ATTACHMT: 8/24/95 letter from Mark Heminway to John Womack (OCC 11167)

TEXT: This is in response to your letter in which you requested from the Chief Counsel of the National Highway Traffic Safety Administration (NHTSA) an opinion as to whether a process Hertz has developed for digitally scanning original written and hand-printed signatures and applying the scanned signatures to odometer disclosure statements using a laser printer meets the requirements of 49 CFR Section 580.

The process you describe raises the issue of whether use of digitally-scanned and laser-printed reproductions of the signature and hand-printed name on odometer disclosures complies with the requirement of 49 CFR @ 580.5(c) and (f) for the signature and printed name of the transferor and transferee. After careful review of the sample Hertz submitted of a title completed using its process and the description of the process in your letter in light of the Federal odometer disclosure statute and regulation s, the agency concludes that the process of digital scanning and laser printing of the signatures on vehicle titles as described in your letter and exemplified by the accompanying sample you submitted fulfills the requirements of the Federal odometer dis closure law. It would be advisable, however, for Hertz to ascertain whether its process also meets applicable requirements of state laws governing motor vehicle titles. States may have different or additional requirements which would affect their willing ness to accept titles printed using the Hertz system.

Section 580.5(c) of NHTSA's odometer disclosure regulation requires that the "written disclosure must be signed by the transferor, including the printed name." 49 CFR @ 580.5(c). Section 580.5(f) specifies the same requirement for the transferee signing the odometer disclosure. In the preamble to the final rule adopting these provisions, and in many interpretations of those requirements, the agency has stated that the signature and printed name requirement means that both the signatures and printed na mes of the transferor and transferee must be handwritten by the respective parties to the transaction. It has made it clear that entry of these items in typewriting, either manually or by means of a computer, does not satisfy the regulation.

Handwriting or handprinting, unlike typewriting, can be subjected to handwriting analysis which is an indispensable tool in identifying the actual individuals who complete fraudulent odometer disclosures. Thus, the agency views the handwriting and hand- printing requirements as essential to the successful identification and prosecution of perpetrators of odometer fraud.

It is our view that the Hertz system as described in your letter and evidenced by the sample you enclosed satisfies the need for an adequate handwriting sample, as well as protection against unauthorized use, and therefore NHTSA's regulations, permit its use. The digital scanning and laser printing of the signature and printed name provided by Hertz' system (as shown on the sample you provided to this office) produce a handwriting exemplar that is sufficiently clear for handwriting analysis. In additi on, the system you describe whereby access to use of the digitally-scanned signature is password-protected appears to provide adequate security against use of the signature and hand-printed name by anyone other than the person who wrote it.

We wish to caution that this opinion should not be construed as a blanket approval of the use of signature and hand-printed names that have been digitally scanned. It is based to a large extent on the quality of the example that you provided with your l etter. Both scanners and computerized printers vary considerably in the degree of resolution and clarity of the image, and scanners also vary in the accuracy with which they reproduce the image from the original.

Accordingly, we cannot assume that all combinations of scanners and printers would be capable of producing an image that will provide a handwriting and hand printing exemplar that is adequate for handwriting analysis. Therefore, if any changes are made in the process or the equipment used that make the signature and/or hand printed name less clear than they appear on its sample, Hertz should submit an example of the product of that change for review by NHTSA before using it on actual odometer disclosur es.

I hope this information is responsive to your request. If you have any further questions regarding this interpretation, or any other legal questions concerning the Federal odometer disclosure statute and regulations, please write to this office at the a bove address, or call Eileen Leahy, an attorney on my staff, at (202) 366-5263.

ID: nht95-5.15

TYPE: INTERPRETATION-NHTSA

DATE: July 1, 1995 EST

FROM: Michael A. Nappo

TO: Chief counsel -- NHTSA

TITLE: NONE

ATTACHMT: ATTACHED TO: 9/11/95 LETTER FROM JOHN WOMACK TO MICHAEL A. NAPPO (A43; STD. 108); 6/8/93 LETTER FROM JOHN WOMACK TO SHAWN SHIEH; 5/10/91 AND 3/21/91 LETTERS FROM PAUL JACKSON RICE TO CHRIS LAWRENCE; 8/17/89 LETTER FROM STEPHEN P. WOOD (VSA 108 (A)(2)(A) TO ALAN S. ELDAHR; 7/8/85 LETTER FROM JEFFREY R. MILLER TO DON BENFIELD

TEXT: Dear Sirs:

Enclosed is some information on a new product that our company will be trying to market in the near future. Could you please send us any information on how this product might effect local and national laws?

Product Name: AUTO AD

Concept: To offer the consumer a better way to advertise with great exposure and less cost.

Operation: The AUTO AD is a portable advertising unit that is designed with a flexable screen that can be secured to a window with suction cups. This screen has LED's (lights) which will be controlled by a processing unit that will be attached to the screen with a cable. The processing unit will then be controlled by a key pad that will be mounted close to the automobile driver. The whole unit will run off the power from the car battery through the cigaret lighter or hardwired in.

NOTE: An adaptor will be made so the AUTO AD can also be used in the home or business using a 120v outlet.

Uses: * selling the auto * advertising the business * as a safety device when the auto breaks down one can signal for help * general advertising

Need: With the high cost of advertising through radio, tv, signs, papers, etc., the consumer is looking for a cheaper way to advertise more effectively.

THANK YOU. (Diagrams omitted.)

ID: nht95-5.16

TYPE: INTERPRETATION-NHTSA

DATE: July 2, 1995

FROM: John Womack -- Acting Chief Counsel, NHTSA

TO: Vladimir Salita

TITLE: NONE

ATTACHMT: ATTACHED TO 5/11/95 LETTER FROM JOHN WOMACK TO TERESA THOMPSON; ALSO ATTACHED TO 7/30/93 LETTER FROM JOHN WOMACK TO WAYNE FERGUSON (STD. 108); ALSO ATTACHED TO 5/10/95 LETTER FROM VLADIMIR SALITA TO CHIEF COUNCIL, NHTSA (OCC 10907)

TEXT: Dear Mr. Salita:

This responds to your letter asking about the applicability of Federal requirements to three inventions you are developing a warning and teaching device for improving driving habits and fuel economy, a deceleration warning light, and a self-adjustable windshield wiper. The first item would "warn drivers by indicating the excessive deceleration, acceleration and dangerous speed at turns by emitting sound signals," and would be mounted on the dashboard. The second item would measure "actual vehicle deceleration" and control "the frequency of light flashing (preferable high-mounted brake light)," to alert the drivers of following vehicles. The third item would control "the rate of windshield wiper sweeps according to the intensity of rain." I am pleased to provide the information you requested.

By way of background information, the National Highway Traffic Safety Administration (NHTSA) is authorized to issue Federal Motor Vehicle Safety Standards for new motor vehicles and new items of motor vehicle equipment. This agency does not provide approvals of motor vehicles or motor vehicle equipment. Instead, manufacturers are required to certify that their vehicles and equipment meet applicable standards. Also, it is unlawful for dealers to sell motor vehicles or motor vehicle equipment that do not meet applicable standards.

Vehicle manufacturers wishing to install your devices would be required to certify that their vehicles meet all applicable safety standards with the devices installed. While we do not have sufficient information to identify all the standards that might be relevant to your devices, I would like to bring three standards to your attention.

Standard No. 201, Occupant Protection in Interior Impact, would be relevant to your dashboard-mounted warning and teaching device. That standard specifies requirements to protect occupants from impact with interior components and could affect where or how the device could be installed in a vehicle.

Standard No. 108, Lamps, Reflective Devices, and Associated Equipment, would be relevant to the deceleration warning light. That standard requires, among other things, that all original motor vehicle lighting equipment be steady burning in use, unless the standard provides otherwise. Since the standard does not specify deceleration warning lights as an exception to this requirement, they must be steady burning. Therefore, your added flashing deceleration light could not be installed on new vehicles. Because center high mounted stop lamps (CHMSLs) are not permitted to flash and must be activated only by the service brake, your use of the CHMSL as a deceleration light also is not allowed on new vehicles.

I am enclosing copies of two recent letters (addressed to Mr. Wayne Ferguson, July 30, 1993, and Ms. Teresa Thompson, May 11, 1995), which provide a more detailed discussion of requirements relevant to deceleration lights.

Standard No. 104, Windshield Wiping and Washing Systems, would be relevant to your self-adjustable windshield wiper. That standard specifies a number of requirements for windshield wiping systems. The standard would not preclude the inclusion of a self-adjustable windshield wiping feature. However, a vehicle manufacturer would need to ensure that the windshield wiping system with such a device met all of the requirements of that standard.

No standards would apply to your devices to the extent that they were sold as aftermarket equipment. However, Federal law prohibits a manufacturer, distributor, dealer, or motor vehicle repair business from "making inoperative" a vehicle's compliance with any safety standard. Therefore, your flashing deceleration light could not be installed by such businesses on used vehicles. If your device affects a CHMSL installed in compliance with Standard No. 108, it could not be installed by the above named businesses. Similarly, your other devices could not be installed by such businesses if the installation adversely affected a vehicle's compliance with any safety standard.

The "make inoperative" provision does not apply to modifications made by owners to their own vehicles. However, NHTSA encourages vehicle owners not to degrade the safety of their vehicles. Also, individual States have authority to regulate modifications that a vehicle owner may make to his or her vehicle. We are not able to provide you with information on State laws. You may wish to seek an opinion from the American Association of Motor Vehicle Administrators, 4600 Wilson Boulevard, Arlington, VA 22303.

Finally, all three of your devices are considered to be "motor vehicle equipment" under Federal law. This means that the manufacturer would be subject to Title 49 of the U.S. Code, sections 30118-30122, concerning the recall and remedy of products with defects related to motor vehicle safety. If the manufacturer or NHTSA determined that the product contains a safety related defect, the manufacturer would be responsible for notifying purchasers of the defective equipment and remedying the problem free of charge.

You have obviously spent a great of time and effort thinking about how to improve driving safety. We appreciate your efforts in this area and the contributions that inventors such as you make to motor vehicle safety.

I hope this information is helpful. I am enclosing a general information sheet for new manufacturers which summarizes NHTSA's regulations and explains where to obtain copies of Federal motor vehicle safety standards and other regulations. If you have any further questions about lighting requirements, please contact Mr. Taylor Vinson at (202) 366-2992. For further information about other safety standards, please contact Ms. Dorothy Nakama at the same telephone number.

Enclosures

NHTSA INFORMATION SHEET ENTITLED "INFORMATION FOR NEW MANUFACTURERS OF MOTOR VEHICLES AND MOTOR VEHICLE EQUIPMENT" (TEXT OMITTED)

ID: nht95-5.17

TYPE: INTERPRETATION-NHTSA

DATE: July 5, 1995

FROM: John Womack -- Acting Chief Counsel, NHTSA

TO: Milford R. Bennett -- Director, North American Operations Safety, Affairs and Regulations, GM

TITLE: NONE

TEXT: Dear Mr. Bennett:

This responds to General Motors' (GM's) inquiry, raised in a June 16, 1995 meeting with the agency, regarding the test procedures in Federal Motor Vehicle Safety Standard No. 114 for determining whether a vehicle is in the "park" position. Under those procedures, a vehicle is deemed to be in park if it ceases rolling within 150 mm. You were concerned that different methods of measuring this distance could result in some vehicles not complying with the requirement that the vehicle roll less than 150 mm.

The short answer to your question is that the test procedure is a "static" measurement procedure. In other words, the agency will not measure the distance that a vehicle has rolled until after the vehicle has completely ceased moving.

This agency recently amended Standard No. 114, adding test procedures to determine whether the key can be removed when the transmission is in positions other than the "park" position and that the transmission remains locked in "park" after key removal. (60 FR 30006; June 7, 1995) NHTSA initiated that action in response to a petition from the automotive industry alleging that such a procedure was needed to make the standard objective.

Section S4.2.1(a)(3) of the amended standard specifies that "[each] vehicle shall not move more than 150 mm on a 10 percent grade when the transmission or transmission shift lever is locked in "park." To demonstrate that the vehicle is in "park" prior to attempting to remove the key, the test procedures in S5.2(e) and S5.3(b) both state:

Drive the vehicle forward up a 10 percent grade and stop it with the service brakes. Apply the parking brake (if present). n1 Move the shift mechanism to the "park" position. Apply the service brakes. Release the parking brake. Release the service brakes . . . Verify that vehicle movement was less than or equal to 150 mm after release of the service brakes.

n1 The parenthetical reference occurs only in S5.3(b).

In the June 16 meeting with the agency, GM stated that vehicle movement could be measured in two different ways: dynamic or static. GM inquired as to which method NHTSA interpreted the standard as specifying, because the results using these two methods would be different. The "dynamic" method of measuring vehicle movement was described by GM as measuring the maximum play-out of a spool of wire attached to the front bumper after release of the service brakes. The "static" method would measure vehicle movement from a reference point on the wheels after the vehicle has come to a complete stop.

Under the dynamic method, a portion of the measured play-out would be due to the "rocking" motion of the vehicle's chassis on its suspension when the transmission engaged. The driveline components would also contribute some movement by temporarily storing some of the kinetic energy of the moving vehicle by flexing and twisting. However, both of these contributions to total rearward movement are temporary, disappearing after the vehicle comes to rest, as in the static measuring method. GM presented test data for certain vehicles and theoretical worst-case calculations of static roll distance on non-production hypothetical vehicles and one test vehicle. The test data showed that dynamic measuring produces larger measurements of roll than does static measuring.

NHTSA interprets the limitation on vehicle movement specified in S4.2.1(a)(3) as referring to static movement. The agency did not contemplate using the dynamic method. The agency intends to measure only permanent components of total vehicle movement, using the "static" method. When conducting compliance testing, NHTSA will measure vehicle movement from a reference point such as the wheel centerline position. The starting time for the measurement will be at the moment before the service brakes are released. The ending time of the measurement will be when the vehicle has completely ceased moving, bouncing, and rocking (i.e., until the vehicle is again "static").

This agency believes that its confirmation that the static test method is the proper method should relieve any realistic concerns regarding compliance of the 1996 model year vehicles GM tested, and probably of any future vehicles as well. The actual tests GM conducted in preparation for the meeting with NHTSA all showed static roll distances well within the requirements of Standard No. 114.

I hope this information is helpful. If you have any further questions about NHTSA's safety standards, please feel free to contact Paul Atelsek of my staff at this address or by telephone at (202) 366-2992.

ID: nht95-5.18

TYPE: INTERPRETATION-NHTSA

DATE: July 10, 1995

FROM: John Womack -- Acting Chief Counsel, NHTSA

TO: Winston Sharples -- President, Cantab Motors, Ltd.

TITLE: NONE

TEXT: Dear Mr. Sharples

We have received the application of Cantab Motors for temporary exemption from Motor Vehicle Safety Standards Nos. 208 and 214. The application meets our procedural requirements, and a Federal Register notice requesting comment is being prepared for publication.

We shall inform you when the Administrator has reached a decision on this matter, which we estimate will be between the middle of September and the middle of October.

Cantab's previous exemption from Standard No. 208 expired on May 1, 1993. Accordingly, Cantab may be in violation of 49 U.S.C. 30112(a) if it has manufactured for sale and sold vehicles manufactured after that date. Its application states that "[in] the preceding twelve months, Cantab has manufactured nine Morgans for sale in the United States." Within 30 days of your receipt of this letter, please furnish the total number of Morgans that Cantab has manufactured for sale after May 1, 1993, and sold in the United States, between May 1, 1993, and the date of your response. Cantab should be aware that any sales of nonconforming vehicles before a grant of its application may be in violation of 49 U.S.C. 30112(a). If Cantab determines that it has manufactured and sold noncomplying vehicles, then it is required to notify and remedy the noncompliance according to statute. Alternatively, it may file an application for a determination pursuant to 49 CFR Part 556 that its noncompliance is inconsequential to safety. If this application is granted, Cantab would be excused from the statutory requirement to notify and remedy.

As a final matter, the application indicates Cantab's belief that it would be exempt from the phase-in requirements of Standard No. 214 for 1995 since only .75 car would be subject to the requirement. Although .75 car is less than one vehicle, the agency rounds up from .50 vehicle in its calculations of compliance. For the same reason, the 1.87 vehicle estimated for 1996 compliance would be two vehicles, not one. The application is sufficient to cover both years.

If you have any questions on this matter, you may discuss them with Taylor Vinson of this Office (202-366-5263).

ID: nht95-5.19

TYPE: INTERPRETATION-NHTSA

DATE: July 10, 1995

FROM: Ricardo Martinez -- M.D., NHTSA

TO: Shih-Chiang Chen -- President, Top World Traffic Equipments Co., Ltd.

TITLE: NONE

ATTACHMT: ATTACHED TO 6/15/95 LETTER FROM SHIN-CHIANG CHEN TO DOT MINISTER

TEXT: Dear Sir:

This is in reply to your letter of June 15, 1995, to the Department of Transportation regarding your invention, the "brake condition warning sensor." You ask whether such an invention is permissible in this country.

The sensor causes flashing in "the third brake light" keyed to the rate of deceleration.

Under the Federal regulations in the United States, motor vehicles must be manufactured so that the third brake light (or "center highmounted stop lamp" as we call it) and all other stop lamps are steady-burning when they are in use.

After the vehicle is sold, Federal law prohibits any manufacturer, dealer, distributor, or motor vehicle repair business from installing the sensor to modify the performance of the third brake light and cause it to flash.

However, Federal law does not prohibit the owner of the car from installing the sensor. In this circumstance, the law of the State in which the vehicle is operated must be consulted to determine whether a flashing third brake light is permissible. We are not able to answer questions about State laws. If you wish an opinion on State laws governing flashing third brake lights, you should write the American Association of Motor Vehicle Administrators, 4600 Wilson Boulevard, Arlington, Va. 22203.

If I can be of further assistance, please contact me or Mr. John Womack Acting Chief Counsel (202) 366-9511.

ID: nht95-5.2

TYPE: INTERPRETATION-NHTSA

DATE: December 12, 1995

FROM: Lewis H. Goldfarb -- Assistant General Counsel, Chrysler Corp.

TO: Kenneth Weinstein -- Office of the Chief Counsel, NHTSA

TITLE: FMVSS 210 Compliance - 1995 Cirrus

ATTACHMT: 12/21/95 letter from Kenneth N. Weinstein to Lewis H. Goldfarb

TEXT: As we discussed last week, I am attaching a memorandum setting forth Chrysler's legal position regarding the above compliance review. I am also submitting a summary report of a compliance test performed on December 8, 1995 in accordance with the procedu res specified in FMVSS 210 and the published test protocol.

The test data confirm that the Cirrus satisfied the 3000 load requirement with a 20% margin at NHTSA's slower onset speed of 25 seconds. We believe this demonstrates full compliance with FMVSS 210.

As you know, the non-compliance found by OVSC staff in July was the result of a laboratory test that placed the pelvic body block 4 inches forward from the seat back. Our tests are conducted with the block positioned against the seat back. We advised OV SC staff in September that this alteration in the pelvic body block location significantly altered the stresses imposed on the rear seat anchorages as compared with the stresses imposed when the body block is positioned against the seat back. Since neit her the procedures specified in the standard nor the published laboratory test protocol specify the location of the body block, our compliance test represents a valid demonstration of compliance with the standard and should be accepted by OVSC.

The attached memorandum provides a legal analysis in support of our position. In essence, it shows that NHTSA's interpretation of the standard as requiring that compliance be achieved regardless of the placement of the body block is contrary to the Safet y Act mandate that standards "be stated in objective terms."

I would appreciate an opportunity to discuss this further after your review.

Attachments (2)

Enclosures

SEAT BELT ANCHORAGE (Summary Report)

Test Information

Test Number: 21095137 Test Type: FMVSS 210 Dev Date: 12/8/95 Time: 13:40:50 Technician/Engineer G. D. Redd/H. Farrah Model Year & Body: 1995 JA Body Component Description: 3-Passenger Rear Bench Seat; VIN # 1B3EJ56C1TN100005 Comments: Weldnuts For O/B Anchors, Anchor Brkts Str. Rrwd., Trailing Arm Brkts. Installed, Lap Belt Body Block Against Seatbacks, Lab Seat Belts Were Used. Units: English Sample Rate (Hz): 50 Sampling Duration (sec): 70

Required 10 sec. Actual Max. 10 sec. Peak Load Channel Name Load (lbs.) Load (lbs.) and % Achieved Lt. Shoulder, S/N-68869 3000.0 3626.2 + 20.9% 3632.1 Rt. Shoulder, S/N-68864 3000.0 3624.6 + 20.8% 3633.3 Lt. Lap. S/N-68860 3000.0 3624.4 + 20.8% 3632.4 Ct. Lap. S/N-68830 5000.0 6044.5 + 20.9% 6054.6 Rt. Lap. S/N-68820 3000.0 3626.6 + 20.9% 3632.5

(Charts omitted.)

MEMORANDUM

December 13, 1995

TO: Kenneth Weinstein, Esq.

FROM: Lewis Goldfarb, Esq.

RE: FMVSS 210 Compliance

This memorandum summarizes Chrysler's legal analysis in support of its position that the 1995 Cirrus LX vehicles comply with FMVSS 210.

A. The Chrysler Cirrus LX Complies with FMVSS 210.

In July 1995, Chrysler was notified by NHTSA's Office of Vehicle Safety Compliance that a 1995 Chrysler Cirrus LX apparently failed a compliance test measuring conformity with FMVSS 210 S4.2.2. The OVSC staff informed Chrysler personnel that the rear outboard driver-side anchorage bolt weld-nut did not sustain the 3,000 lb. load required by the referenced subsection of FMVSS 210.

After careful analysis by Chrysler, the company has confirmed its position that the 1995 Cirrus LX complies with FMVSS 210 when tested in accordance with the procedures specified in the standard and the published laboratory test protocol. Chrysler ha s also concluded that the NHTSA test result appearing to show noncompliance was attributable to the location of the pelvic body block during the NHTSA test. NHTSA's laboratory acknowledged that it placed the pelvic body block in the Cirrus test approxim ately 4 inches forward from the seat back. As the OVSC staff was advised by letter dated September 28, 1995, Chrysler has determined that this alteration in the pelvic body block location significantly altered the stresses imposed on the rear seat ancho rages, as compared with the stresses imposed when the body block is positioned against the seat back.

Although Chrysler initially believed that the apparent noncompliance was attributable to differences between NHTSA's comparatively slow load application rate (approximately 25 seconds) and Chrysler's faster load application rate (approximately 10 seco nds), Chrysler has now confirmed that the Cirrus meets the requirements of FMVSS 210 S4.2.2, even at the slower NHTSA load application rate, with the pelvic body block positioned against the seat back.

Chrysler has therefore determined that the only remaining issue is whether NHTSA's test can form the basis of a finding of noncompliance. In light of the obvious influence of the location of the pelvic body block -- a variable that is not specified i n the Standard or in the accompanying test procedures -- Chrysler respectfully submits that NHTSA's test does not demonstrate a noncompliance with FMVSS 210, and that NHTSA cannot sustain a finding of noncompliance on the basis of an unspecified test pro cedure.

B. NHTSA Cannot Lawfully Base a Noncompliance Determination on an Unspecified Test Procedure.

NHTSA's statutory authority to promulgate standards is governed by the provisions of Title 49 of the United States Code, Chapter 301 (Motor Vehicle Safety) (formerly the National Traffic and Motor Vehicle Safety Act). Chapter 301 provides that a moto r vehicle safety standard "shall be practicable, meet the need for motor vehicle safety, and be stated in objective terms." 49 U.S.C. @ 30111(a).

These statutory criteria for motor vehicle safety standards have been construed by the Federal courts to require NHTSA to specify objective criteria and test procedures for measuring compliance with each safety standard. In one of the first cases con struing NHTSA's safety standard-setting authority, the Court found as follows:

"The importance of objectivity in safety standards cannot be overemphasized. The Act puts the burden upon the manufacturer to assure that his vehicles comply under pain of substantial penalties. In the absence of objectively defined performance requirem ents and test procedures, a manufacturer has no assurance that his own test results will be duplicated in tests conducted by the Agency. Accordingly, such objective criteria are absolutely necessary so that 'the question of whether there is compliance wi th the standard can be answered by objective measurement and without recourse to any subjective determination.'

Objective, in the context of this case, means that tests to determine compliance must be capable of producing identical results when test conditions are exactly duplicated, that they be decisively demonstrable by performing a rational test procedure, and that compliance is based upon the readings obtained from measuring instruments as opposed to the subjective opinions of human beings."

Chrysler Corporation v. Department of Transportation, 472 F.2d 659, 675-676 (6th Cir. 1972) (two footnotes omitted) (quotation in first paragraph is from the House Report accompanying enactment of the National Traffic and Motor Vehicle Safety Act, H.R. 1 776, 89th Cong. 2d Sess. 1966 at p. 16).

The court went on to conclude that the provisions of FMVSS 208 under review at that time were not objective, because they permitted too much variability in the results of compliance tests conducted in literal compliance with the specified procedures.

Here, NHTSA has specified extensive test procedures for demonstrating compliance with FMVSS 210 within the text of the standard itself (S5. Test Procedures), and has supplemented those regulatory test procedures with a published laboratory test protoc ol, the latest version of which is TP-210-09. Neither the test procedures within the standard nor the accompanying test protocol makes any provision for locating the pelvic body block in the test vehicle for the anchorage loading compliance test. In the absence of a specification, Chrysler has consistently placed the body block against the seat back, which is the most natural and representative location for the body block. As far as Chrysler could ascertain from a review of prior NHTSA compliance tests , the agency has also customarily located the pelvic body block against the seat back during FMVSS 210 compliance tests.

On July 27, 1995, Chrysler representatives met with NHTSA compliance engineer Jeff Giuseppe and representatives of NHTSA's contractor, General Testing Laboratory. At that meeting, the Chrysler representatives were informed that NHTSA's contractor; GT L, moved the pelvic body block several inches forward of the seat back in order to prevent breaking the seat belt buckle during the load application test on the Cirrus.

This relocation of the pelvic body block away from the rear of the seat is not authorized by FMVSS 210 or its published test protocol. The rationale offered for the relocation - that the relocation was necessary to avoid breakage of the seat belt buc kle during the compliance test -- is inconsistent with the 1990 amendments to FMVSS 210 and the implementing instruction in the published test procedure.

In 1990, NHTSA addressed the very issue of the potential for breakage of the buckle or webbing during the anchorage loading test, and decided to resolve the potential breakage problem by authorizing the use of cables, chains or high strength webbing t o impose the load on anchorages during FMVSS 210 compliance testing, as long as the material used to apply the load to the anchorages duplicates the geometry of the original equipment webbing at that seating position at the initiation of the compliance t est. Final Rule amending FMVSS 210, 55 Fed. Reg. 17970 at 17980 (April 30, 1990); Final Rule responding to Petitions for Reconsideration, 56 Fed. Reg. 63676 at 63677 (December 5, 1991). In the 1990 Final Rule, NHTSA emphasized that its decision was inte nded to assure that "compliance testing should not result in unrealistic loading for the anchorages."

In the published test protocol, NHTSA implemented this amendment to FMVSS 210 by directing laboratories to address potential buckle or webbing breakage by replacing seat belt webbing and/or buckles in the area of the body blocks with wire rope. (See Sect ion 12, Compliance Test Execution.) At no time in the rulemaking or in the implementing test protocol has NHTSA ever suggested that the hardware breakage problem could or should be addressed by relocating the pelvic body block to some unspecified locatio n away from the seat back of the test vehicle.

In any event, it does not matter whether the relocation of the body block is helpful to the agency in avoiding compliance test difficulties. The important point is that the contractor's relocation of the pelvic body block has adversely affected the o utcome of the compliance test, by introducing a variable in the compliance test procedure that is not authorized by the NHTSA standard or its implementing published test protocol.

On its face, FMVSS 210 requires demonstration of anchorage strength under certain specified test conditions. Chrysler has demonstrated compliance with those requirements. It is only after NHTSA's contractor relocated the pelvic body block to a locat ion not specified in the standard and not consistent with NHTSA's own prior laboratory test reports, that the laboratory was able to show an apparent noncompliance in the case of the Cirrus.

NHTSA is required to specify objective requirements in its safety standards, and to specify repeatable test procedures by which compliance can be demonstrated. Chrysler Corp. v. Department of Transportation, 472 F.2d at 676. In the Cirrus matter, the NHTSA laboratory's relocation of the pelvic body block was not authorized by the FMVSS 210 test procedure or the published test protocol. Thus, NHTSA is attempting to demonstrate noncompliance on the basis of an unspecified test variable, which it cann ot do consistent with its obligation to specify repeatable test procedures. "Manufacturers are entitled to testing criteria that they can rely upon with certainty." Paccar, Inc. v. National Highway Traffic Safety Administration, 573 F.2d 632, 644 (9th C ir., 1978), cert. den. 439 U.S. 862 (1978).

Furthermore, NHTSA is not free to make changes in its compliance test procedures if those changes can affect the outcome of the compliance test, unless NHTSA provides adequate notice to the regulated industry. Absent such notice, NHTSA cannot retroac tively interpret FMVSS 210 to require compliance with the anchorage strength requirements with a relocated pelvic body block. General Electric Company v. U.S. EPA, 15 F.3d 1324, 1333-1334 (D.C. Cir. 1995) (even if agency interpretation of a standard is r easonable and entitled to deference on a prospective basis, it cannot be enforced retroactively if the standard does not "fairly inform" the regulated industry of the agency's perspective).

C. Conclusion.

NHTSA cannot base a determination of noncompliance with FMVSS 210 on a variable test procedure that is not specified in the Standard. To hold otherwise would sanction a wholesale departure from the fundamental requirement in Chapter 301 for "objectiv e" standards, compliance with which can be measured in accordance with repeatable, producible test procedures. Chrysler has demonstrated the Cirrus' compliance with FMVSS 210 in accordance with the regulatory test procedures and published test protocol. NHTSA's compliance investigation should be closed.

(Copy of page 64469 of the Federal Register (vol. 60, No. 241, 11-15-95) omitted here.)

ID: nht95-5.20

TYPE: INTERPRETATION-NHTSA

DATE: July 13, 1995

FROM: George E. Walton -- International Manufacturer's Consultants Inc.

TO: Mr. John Womack -- Acting Chief Counsel, NHTSA

TITLE: Reference: Federal Motor Vehicle Safety Standards No. 205, Glazing Materials - Passenger Cars, Multipurpose Vehicles, Motorcycles, Trucks and Buses.

ATTACHMT: ATTACHED TO 08/04/95 LETTER FROM JOHN WOMACK TO GEORGE W. WALTON (REDBOOK 2; STD. 205)

TEXT: Dear Mr. Womack:

We represent a client who wishes to obtain your written comment on the use of the following glazing material in a motor vehicle:

Our client wishes to use laminated "AS-1" Glass for motorcycle windshields.

A motorcycle is described as a "Motor Vehicle", and the FMVSS-205 standard indicates by reference in the ANSI Z26.1 standard that "AS-1" glazing for use "Anywhere in a Motor Vehicle".

Our client would like to have your written comment prior to producing several thousand motorcycle windshields from AS-1 glazing.

Would you kindly address your comment to the undersigned.

ID: nht95-5.21

TYPE: INTERPRETATION-NHTSA

DATE: July 13, 1995

FROM: D. L. O'Connor -- Manager, Government And Customer Compliance, The Goodyear Tire And Rubber Company

TO: Walter K. Myers -- Office Of The Chief Counsel, NHTSA

TITLE: NONE

ATTACHMT: ATTACHED TO 8/9/95 LETTER FROM JOHN WOMACK (STEPHEN WOOD) TO D. L. O'CONNOR (A43; PART 571)

TEXT: Dear Walt:

Goodyear is encountering difficulties in importing tires that meet all of the Federal Motor Vehicle Safety Standards (FMVSS) into Colombia, South America. It appears that Colombia is attempting to regulate the quality and safety of all products being imported into the country which is certainly a worthy goal.

Colombia recognizes and accepts the Federal Motor Vehicle Safety Standards as adequate to meet the quality and safety levels they desire. The problem Goodyear is encountering is verification that we are a company that complies with all the safety standards when we place the DOT symbol on a tire.

The Colombian Institute of Technical Standards (ICONTEC) requires a Certificate of Conformity which we provide. A copy of this Certificate is attached.

Per our conversation on July 12, 1995, reference this subject, we believe that Goodyear-U.S.A. will be permitted to continue exporting tires to Colombia if NHTSA would recognize/endorse the fact that Goodyear is a U.S. tire manufacturer in good standing and the DOT stamping on our tires is valid.

Thank you in advance for your help.

Attachment

The Goodyear Tire & Rubber Company

Akron, Ohio 44316-0001

July 13, 1995

CERTIFICATE OF CONFORMITY

We certified that all tires manufactured by Goodyear-USA which are exported into Colombia are of first quality, and in compliance to the United States Department of Transportation Federal Motor Vehicle Safety Standards, either FMVSS # 109 for new pneumatic tires for passenger cars, or FMVSS # 119 for new pneumatic tires for vehicles other than passenger cars.

J C Whiteley Vice President Government Compliance & Product Quality

D L Knight Director, Tire Technology Latin America Region

ID: nht95-5.22

TYPE: INTERPRETATION-NHTSA

DATE: July 13, 1995

FROM: Yvonne Anderson -- Todd Wans

TO: Mary Versailles, NHTSA

TITLE: NONE

ATTACHMT: ATTACHED TO 8/31/95 LETTER FROM JOHN WOMACK TO YVONNE ANDERSON (A43; VSA 108 (A) 2))

TEXT: Dear Ms Versailles:

Our company, Todd Vans in the state of Minnesota does handicap van conversions. We are currently converting a van for a school system. The van was purchased by the school system at a local car dealer and was then brought to us to raise the roof, extend the side door, install wheelchair tiedowns and a wheelchair lift. The original manufacturers rating of the vehicle is that of a "Bus". When the handicap equipment is installed and a seat removed it would change the vehicle to a MPV and thus reducing the seating in a 12 passenger van.

My question is this, "Does this vehicle have to be recertified by us or anyone else to conform with Federal guidelines?"

I would appreciate an answer as soon as possible, as they want the vehicle in use by the end of August.