ID: nht95-7.1

TYPE: INTERPRETATION-NHTSA

DATE: September 25, 1995

FROM: John Womack -- Acting Chief Counsel, NHTSA

TO: Charles Holmes

TITLE: NONE

ATTACHMT: ATTACHED TO 7/15/95 LETTER FROM CHARLES HOLMES TO NHTSA OFFICE OF CHIEF COUNCIL (OCC 11084)

TEXT: Dear Mr. Holmes:

This responds to your letter asking about Federal requirements for door locks and handles on a 1989 truck with a gross vehicle weight rating (GVWR) of 33,000 pounds. You state that you rented the truck from a rental company.

In your letter, you described an accident you had with the rented truck. You stated that your son fell out of the vehicle when one of its doors opened as you rounded a curve. You are sure that you had locked the door. (You also said you buckled your son in a seat belt, but believe that he had unbuckled the belt.) After the accident, your son told you he had his hand "over the door handle . . . [and] was tring [sic] to hold on and the door came open."

You ask several questions relating to requirements for "a safety lock" for the door of the truck. As explained below, our safety standards do not require trucks to have "safety locks."

Let me begin with some background information about our safety requirements. Federal law authorizes the National Highway Traffic Safety Administration (NHTSA) to issue Federal motor vehicle safety standards (FMVSS) applicable to new motor vehicles and new items of motor vehicle equipment. One such standard is Safety Standard No. 206, Door Locks and Door Retention Components (copy attached). Standard No. 206 established certain requirements for door latches, hinges, and locks for new passenger cars and multipurpose passenger vehicles, and new trucks of all weight ratings. Each new truck must meet Standard No. 206 when the vehicle is first sold at retail. With regard to the truck in question, this means that the truck had to meet the applicable door lock requirements of Standard No. 206 when it was sold "new" to the rental company.

Your first question asks whether we required the truck to have a "safety lock." Standard No. 206 requires each door on a new truck to be equipped with a lock, but without the features we believe you have in mind. When engaged, the lock has to disable the outside door handle, but not the inside handle. Some manufacturers of passenger vehicles voluntarily install "child safety locks" on some doors, which when engaged, makes the inside door handle inoperative even when the lock is in the "unlocked" position. Child safety locks are not required by NHTSA.

Your next question asked whether the truck in question would be considered a passenger vehicle, since it is a "rental vehicle." The answer is no. A vehicle that is designed primarily for transporting property is a "truck" under our regulations, regardless of whether it is a rental vehicle.

Your third question asked what Federal case laws reverse or overrule our regulations. Although some of our regulations have been overruled or modified pursuant to court order, FMVSS No. 206 has not been affected by court action.

Your final question asked for the names and addresses of people injured in accidents similar to yours. We are unable to provide that information. Our data do not include instances in which occupants fall out of moving vehicles where there was no accident and where there were no fatalities or injuries.

I hope the above information is helpful to you. Should you have any further questions of need additional information, please feel free to contact Walter Myers of my staff at this address or at (202) 366-2992, or FAX (202) 366-3820.

Enclosure (COPY OF REGULATION IS OMITTED.)

ID: aiam4940

"Dear Mr. Klisz: This responds to your letter regarding foreign-mad tires that the Army procured in Southwest Asia. You indicated that your office is trying to ascertain the suitability of these tires, not all of which are marked with a 'DOT' certification, for Army use. You enclosed a list of the tires and, for those marked with 'DOT', requested this office to 'determine if the DOT codes are accurate according to our records.' You also requested that we verify your understanding of the general requirements applicable to foreign tire manufacturers, and the process by which such manufacturers certify their tires as complying with our standards. I am pleased to have this opportunity to answer your questions. For your information, I have enclosed a copy of the National Traffic and Motor Vehicle Safety Act (the Safety Act). Section 103 of the Safety Act authorizes the National Highway Traffic Safety Administration (NHTSA) to issue Federal motor vehicle safety standards for new motor vehicles and new motor vehicle equipment. The Safety Act defines a motor vehicle safety standard as, 'a minimum standard for motor vehicle performance, or motor vehicle equipment performance, which is practicable, which meets the need for motor vehicle safety and which provides objective criteria.' See 102(2) . The Safety Act then requires that all motor vehicles and motor vehicle equipment sold or imported into the United States, regardless of whether the product is manufactured in the U.S. or abroad, must comply with the safety standards adopted by NHTSA. Specifically, 108(a)(1)(A) of the Safety Act provides: no person shall manufacture for sale, sell, offer for sale, or introduce or deliver into introduction in interstate commerce, or import into the United States, any motor vehicle or item of motor vehicle equipment manufactured on or after the date any applicable Federal motor vehicle safety standard takes effect under this title unless it is in conformity with such standard and is covered by a certification issued under 114... In the case of tires, this provision of the Safety Act means that a foreign tire manufacturer would be prohibited from exporting its new tires to the United States unless the manufacturer certified that the tire complies with the applicable U.S. safety standards. All new tires for use on passenger cars must be certified as complying with Federal Motor Vehicle Safety Standard No. 109 (49 CFR 571.109), and all new tires for use on other motor vehicles must be certified as complying with Federal Motor Vehicle Safety Standard No. 119 (49 CFR 571.119). These standards specify performance requirements (strength, endurance, high speed performance, and, for passenger car tires only, resistance to bead unseating), marking requirements (treadwear indicators and labeling information), and tire and rim matching information requirements that must be met by all tires to be sold in the United States. The process of certifying compliance with the applicable safety standards under the Safety Act is substantially different than that used in many other countries. For instance, the European nations require manufacturers to deliver tires to a governmental entity for testing. After the governmental entity itself tests the tires, the government approves those tires for use and assigns an approval code to the tires. In place of this sort of process, the Safety Act establishes a 'self-certification' process for tires sold in the United States. Under this self-certification process, the tire manufacturer, not any governmental entity, certifies that its tires comply with the applicable safety standards. Further, the Safety Act does not require that a manufacturer base this certification on a specified number of tests or any tests at all, a manufacturer is only required to exercise due care in certifying its tires. It is up to the individual tire manufacturer to determine in the first instance what test results, computer simulations, engineering analyses, or other information it needs to enable it to certify that its tires comply with the applicable Federal motor vehicle safety standards. Once a manufacturer has determined that its tires meet the requirements of the applicable standard, it certifies that compliance by molding the letters 'DOT' on one sidewall of each certified tire. As stated above, NHTSA does not do any pre-sale approval or testing of tires. Instead, the agency routinely tests certified tires that have been sold to determine whether the tires do in fact comply with applicable standards. For these enforcement checks, the agency purchases new tires and tests them according to the procedures specified in the standard. If the tires pass the tests, no further steps are taken. If the tires fail the tests and are determined not to comply with the standard, the tire manufacturer is required to recall the tires and remedy the noncompliance. Turning now to your particular situation, it is not clear how helpful these requirements will be in assessing the current safety performance of the tires procured during Operation Desert Storm/Desert Shield. In the case of such tires that are marked with 'DOT', that mark means the tire manufacturer certified that, when new, the tires complied with all applicable safety standards. However, the presence of a 'DOT' symbol on a used tire does not mean that the tire in its current condition would still comply with the new tire standards. There are many instances in which used tires would be unlikely to comply with the new tire standards, simply because of normal environmental factors and without any fault in the construction of the tire. Such environmental factors include, but are not limited to, a hole larger than a nail suffered by the tire while in service, damage to the inner liner of the tire from being run flat, damage to the bead area of the tire during mounting, damage to the sidewall from running against rocks, curbs, and so forth. In each of these instances, the vehicles on which the tires have been used and the conditions in which those vehicles have been operated would be at least as important in determining the tire's current performance capabilities as would the tire's capabilities when it was new. Further, the absence of a 'DOT' symbol on a tire purchased outside of the United States does not necessarily mean that the tire, when new, would not have complied with the applicable tire safety standard. On the contrary, it is possible that the new tire would have, if tested, actually been found to comply with those safety standards. The only definitive conclusion you may draw about a tire without a 'DOT' symbol that is purchased outside the United States is that the tire's manufacturer, for whatever reason, did not certify that tire's compliance. It could be that the tire did not comply when new, or it could be that the manufacturer did not produce the tire for importation and eventual sale in the U.S., and therfore felt no need to certify the tire. You noted in your letter that this agency has established a requirement in 49 CFR Part 574 that all tire manufacturers, both foreign and domestic, must obtain an identification mark from NHTSA and label each of their tires with that mark. Before NHTSA will assign an identification mark to a tire manufacturer headquartered outside the United States, the manufacturer must designate a permanent resident of the United States as the manufacturer's agent for service of process in this country. However, the designated agent of the manufacturer only acts as the agent for service of process, the manufacturer's designated agent is not responsible for the certification of the tires. Only the manufacturer certifies that the tires comply with all applicable standards and, as explained above, that certification must be made (and indicated with a DOT symbol) before the tire would be allowed to enter the United States. Finally, you requested in your letter that we review the list of tires you submitted and verify the accuracy of the 'DOT' marks shown. I believe this request was based upon a misunderstanding of NHTSA's role in the certification process. Since manufacturers are not required to deliver their tires to NHTSA for testing, or register their products with the agency, the agency has no way to 'verify the accuracy' of the DOT codes you submitted. To repeat, the DOT code molded into the sidewall of a tire represents the manufacturer's self-certification that the tire complies with applicable standards, the DOT code is not a statement or certification by NHTSA that the tire complies with our standards. NHTSA would only have information about the 'accuracy' of the DOT codes (i.e., whether the tires so marked actually meet the standards), in the event that the agency had conducted one of its random enforcement checks on a new tire like the one in question. Accordingly, we reviewed our enforcement records to determine whether NHTSA performed compliance tests on new versions of any of those tires. Having searched the agency's data base for the brands, types, and years of the listed tires, we found that the agency did not conduct compliance tests on any of these tires. I hope this information is helpful. Please contact Stephen Kratzke of my staff at this address or by telephone at (202) 366-2992 if you have further questions. Sincerely, Paul Jackson Rice Chief Counsel Enclosure";

ID: nht74-5.47

DATE: 04/22/74

FROM: AUTHOR UNAVAILABLE; James B. Gregory; NHTSA

TO: American Safety Equipment Corporation

TITLE: FMVSS INTERPRETATION

TEXT: This is in reply to your letter of August 3, 1973, petitioning for amendments to paragraphs S4.9 and S5.3.1 of Motor Vehicle Safety Standard No. 213 which would allow the use of a buckle release mechanism design that requires, before release, some foreshortening of the belt system to reduce the load on the release mechanism. This design cannot meet the existing requirements of S4.9 of Standard No. 213 with the device under load. We wrote to you on August 20, 1973, and on December 17, 1973, requesting additional data. We have not received a response from you to either letter.

We have decided that your petition should be denied. Our objection to the design you wish to employ is that it cannot be released when the belt restraint system is under load. The NHTSA believes, and has adopted its position in Standard No. 213, that a fundamental safety requirement for any occupant restraint release mechanism is the ability to release when it is under a load imposed by the weight of the occupant. In many vehicle crashes restraint systems may be loaded in this fashion when occupants must be removed.

We do not disagree with your argument that mechanisms which release under load may more readily be released by children when release is undesirable. We believe the greater safety problem, however, is presented by designs which are difficult to operate because they require a prior unloading of the release mechanism. These systems may not be able to be released, even by adults, in crash situations. Data we have received indicates substantial difficulty in the ability of adults to release a child from a child seat in situations (total darkness) simulating emergencies. The study in question has been conducted by the National Swedish Road and Traffic Research Institute and is on file in Docket No. 2-15.

Moreover, we believe buckle release mechanisms should be operable by older child occupants, particularly in situations such as in upside-down configurations where a load is imposed on the mechanism. This purpose is met by the existing requirements of the standard but would not be met were we to grant your petition.

In your petition you argue that even a lower release force does not necessarily mean that the occupant will be able to escape easily from the restraint system. While this may be true, as no requirements are specified in Standard No. 213 regarding ease of belt removal, it is not a justification for increasing the difficulty of operating the buckle release mechanism.

SINCERELY

August 3, 1973

Administrator National Highway Traffic Safety Administration Subject: Petition for Rule Making

Reference: MVSS213, S4.9 and S5.3.1

American Safety Equipment Corporation is a major developer and manufacturer of safety belt restraint systems for automobile manufacturers. American Safety personnel have a great deal of experience designing aircraft and automotive restraint systems, particularly hardware such as buckles, retractors and associated items. The Company has been active since 1966 in the business of designing and producing restraint harnesses and complete seating systems for children in the 20 to 40 pound size range. The Company has been working on development of a new child safety seat since 1970 basing the basic design criteria on dynamic performance under simulated crash testing, while also observing the current static testing regulation. Final testing of prototype models has been completed on the design considered optimum for performance, economy and simplicity of use.

This petition is submitted in accordance with the procedure described in Subpart B Section 553.31. This proposal is to add a performance requirement and test procedure for an occupant harness release mechanism not currently considered by the Child Seating Systems regulation. The mechanism is not of a nature normally classified or described as a "buckle", but for purposes of MVSS213, is being considered a release mechanism.

The proposed additions and revisions to MVSS213 are shown underlined:

S4.9 (b) Release when a force of not more than 20 pounds is applied when tested in accordance with S5.3 expect for systems described by S4.9 (c).

2 (c) Release when a force of not more than 10 pounds is applied when the release mechanism requires foreshortening of the webbing restraint components to activate and is tested in accordance with S5.3.1 (d).

S5.3.1 For forward-facing child seating systems where foreshortening of the webbing restraint components is not required by the release mechanism -

(a) -- unchanged --

(b) -- unchanged --

(c) -- unchanged --

When foreshortening of the webbing restraint components is required to actuate the release mechanism -

(d) Test the system with a 1,000-pound force as specified in S5.1, remove the force completely and then release the mechanism in a manner typical of that employed in actual use.

Photographs are enclosed showing the release mechanism actuation under normal and simulated emergency conditions and a typical testing set-up to determine release force. The application of force to release the occupant harness must simultaneously pull down on the abdominal pad and the shoulder straps thereto attached and upwards under the metal latch. This is very simply described as a "pinching" action of the thumb and first and/or second finger. The shoulder straps are thereby foreshortened and the occupant will be forced rearward (unless lifted or pushed) toward the back surface of the child seat. The hand not activating the release mechanism can be used to move the child's torso away from contact with the restraint straps. The actuation of the release mechanism with the belts in a slackened condition is an easy one-hand operation with a low force requirement.

The performance criteria on which our restraint release mechanism design is based are as follows:

1. The mechanism must be capable of restraining the occupant when the system undergoes dynamic forces of an auto crash without distortion of any kind which could result in a jammed or difficult-to-release condition.

2. Child must not be able to easily release himself.

3. The mechanism must be extremely easy to understand from the standpoint of an adult learning how to actuate. Similarity to current production adult safety belt hardware assures the shortest possible learning time by an adult.

3 These criteria were formulated after studying field experience of consumers and consulting with experienced people in various phases of the child and adult restraint business. This experience indicated to us that -

1. A common possible problem with many child seat harness buckle release mechanisms is that the release mechanisms could be easily actuated by the child occupant. The child is protected only while sitting in the seat with the harness secured.

2. Emergency removal of a child occupant from a wrecked automobile should be accomplished within a minimum time. Emergency removal always involves supporting at least a portion of the child's weight while releasing the harness mechanism. After an accident the child's weight is forced against the restraining straps if the car has overturned or if the car seat back is exerting pressure on the child and/or child's seating system.

3. Restraint harness buckles which have a low release force (even under occupant's weight load) may not completely detach all components of the harness system from the occupant. Such components as shoulder and/or lap belts may remain wholly or partially attached to the buckle and could interfere with the removal of the occupant from the seating system.

Much subjective information from consumers was also evaluated by us to finalize the release mechanism design since it is considered one of the key components of the overall child seating system. Real-world data is scarce on crash performance of child restraint systems, but accident experience is reasonably hypothesized from experience with children and emergency post-crash situations. It is considered reasonable by us that release mechanisms which actuate under the test procedures now in effect are likely to be released wholly or partially be a child prior to a crash. Protection in low speed, as well as high speed crashes, is important and a securely fastened harness is mandatory for protection. Driver distraction by unrestrained children can also cause accidents which is minimized by a release mechanism not easily operable by the child. Supporting the child's weight or otherwise relieving pressure of the child's body from the harness webbing during emergency removal is consistent with a majority of conceivable accident conditions and always would be a requirement with the impact-shield type restraints (no harness) where the occupant would be expected to be wrapped around the impact shield after a crash. Self-removal from a harness restraint under emergency conditions by a child in the 20 to 40 pound age group

4 is not reasonable unless the child is taught expressly for this purpose. In such a case, training in body articulation and hardware manipulation is probably difficult for the proposed release mechanism.

American Safety is planning procurement of the necessary tooling for manufacturing the child seat design incorporating the proposed release mechanism. The proposed child restraint release mechanism and release procedure is nearly identical to the release of the detachable shoulder harness pin-connector in production for adult restraints in certain cars for three years. The pin and plastic grommet used on the child restraint mechanism proposed are parts produced for several different 1973 model cars. The Company requests the addition of the proposed requirements to MVSS213 to permit it to manufacture and sell the child restraint product.

Gordon M. Bradford Vice President, Corporate Development

enclosures

(Graphics omitted)

PHOTOGRAPH NO. 1

Restraint release mechanism -- This general view shows the similarity to the established pin and connector design now in production for shoulder belts on adult restraints. The two straps above the release mechanism are adjustable upper torso restraints. The release mechanism is affixed to the abdominal pad and the adjustable crotch strap is sewn permanently to the release mechanism connector.

PHOTOGRAPH NO. 2

Release mechanism activation -- The initial step in activating the release is as shown. The thumb depresses the abdominal pad and foreshortens the upper torso restraints. The index finger or middle finger holds up the connector while the pin is forced downward.

PHOTOGRAPH NO. 3

Release mechanism activation -- The completion of the releasing operation shows the pin and grommet now moved downward into the enlarged opening of the connector where it is completely separated from the crotch strap and connector. A slight forward pull with the finger finishes the release. The connector is then dropped and the abdominal pad with upper torso straps attached is swung upward over the occupant's head for removal when the seat is situated in a normal horizontal attitude.

PHOTOGRAPH NO. 4

Release force requirements -- A possible form of measurement device which operates the release mechanism in a manner typical of that employed in actual use is shown. This test would be performed after the child seating system had been subjected to a static load of 1,000 lbs in accordance with MVSS213, S5.1. Following this the release force test would be done in accordance with the proposed procedure S5.3.1(d).

PHOTOGRAPH NO. 5

The position illustrated simulates a nose-down car attitude. The child's full weight is resting on the harness. The adult is about to release the harness.

PHOTOGRAPH NO. 6

The adult has pushed upward with her left hand on the abdominal pad. This slackens the crotch strap allowing normal operation of the buckle with her right hand. The load required to release the buckle in this way is no greater than normal.

PHOTOGRAPH NO. 7

The buckle has opened and the adult has begun to lower the child. The abdominal pad has slid naturally from her left to her right hand. Her left hand continues to support the abdomen.

PHOTOGRAPH NO. 8

The adult's right hand continues to guide the abdominal pad while the left hand continues to support the abdomen. The crotch strap is completely clear of the child.

PHOTOGRAPH NO. 9

The child is out of the harness and is now on what would be either the car's dash or front seat back, depending on where the child seat was installed in the vehicle. The harness is clear of the child. No force greater than the child's weight was exerted. There were no "practice" runs after instructions on how to correctly release the child were given to the Mother.

ID: nht92-5.26

DATE: July 8, 1992

FROM: Andrew H. Card, Jr. -- NHTSA Secretary of Transportation

TO: Matthew G. Martinez -- U.S. House of Representatives

TITLE: None

ATTACHMT: Attached to letter dated 6/11/92 from Matthew G. Martinez to Andrew Card (OCC 7386)

TEXT:

Thank you for your letter regarding Philatron International.

The National Highway Traffic Safety Administration (NHTSA) closely examined Philatron's request and determined that the requested relief cannot be provided. The reasons underlying this conclusion are fully explained in a May 26, 1992, letter from NHTSA Chief Counsel Paul Jackson Rice to Anthony D. Padgett, counsel for Philatron.

In his letter, the Chief Counsel explained that Philatron, as a manufacturer of motor vehicle equipment, is not eligible to be considered for an exemption from compliance with the motor vehicle safety standards under the National Traffic and Motor Vehicle Safety Act. The Chief Counsel also concluded that a proceeding resulting from Philatron's rulemaking petition must include a full notice and comment procedure. A copy of the letter is enclosed.

Let me assure you that the Department of Transportation supports and implements President Bush's deregulatory policies and initiatives. However, the President has emphasized that deregulation should not compromise safety. With respect to the issue at hand, interested parties have raised serious questions as to whether the oil resistance requirement of the standard should be eliminated and, if so, whether other requirements should be substituted. It is this concern for safety that compels NHTSA not to eliminate summarily the regulatory requirement in question.

Attachment

Letter dated 5/26/92 from Paul Jackson Rice to Anthony D. Padgett, Esq., Thelen, Marrin, Johnson & Bridges, regarding Philatron. Text of letter follows.

Dear Mr. Padgett:

General Curry has asked me to respond to your letter of April 24, 1992, in which you requested the National Highway Traffic Safety Administration ("NHTSA") to grant an "immediate temporary exemption" from the oil resistance requirements of section S7.3.4 of Federal Motor Vehicle Safety Standard ("FMVSS") No. 106 to Philatron International, Inc. The purpose of such an exemption would be to permit Philatron to manufacture and sell its coiled brake hose products, which do not comply with S7.3.4, during the pendency of the rulemaking proceeding that NHTSA has commenced in response to Philatron's petition for rulemaking to amend that provision.

Section 123 of the National Traffic and Motor Vehicle Safety Act ("Act"), 15 U.S.C. S 1410, provides NHTSA with the authority to grant exemptions from safety standards under limited circumstances. However, we have concluded that Philatron would not be eligible to receive an exemption under that section. First, section 123 only authorizes exemptions to manufacturers of "motor vehicles," not to manufacturers of motor vehicle equipment such as Philatron. You have suggested that "it would strain logical reasoning" to allow exemptions to be granted to manufacturers of complete vehicles but not to manufacturers of individual components. However, this is a distinction that Congress may make and has made. As you are aware, section 157 of the Act, 15 U.S.C. S 1417, authorizes NHTSA to grant to all manufacturers, including manufacturers of equipment items, an exemption from the notification and remedy requirements of sections 151-154 of the Act if the agency determines that a noncompliance or defect is inconsequential as it relates to motor vehicle safety. Congress did not provide similar authority in section 123 regarding exemptions from section 108 of the Act, which precludes the manufacture and sale of motor vehicle equipment that does not comply with applicable safety standards.

Second, even if NHTSA could exempt equipment items under section 123, the number of hose assemblies manufactured by Philatron would disqualify it due to the numerical restrictions established by section 123(d). Moreover, although you have not indicated which specific subsection of section 123 you believe would be applicable to Philatron, it is questionable whether the company could satisfy any of the substantive bases for an exemption under that section.

I should also point out that, pursuant to section 123(a), NHTSA must provide notice and an opportunity for public comment before it may grant an exemption. Since Philatron's sole reason for requesting an exemption is to enable it to continue to manufacture and sell its products during the pendency of the ongoing rulemaking proceeding, commencing a separate notice and comment proceeding to consider whether to grant a temporary exemption would not provide any real benefit to the company.

It is also clear that, notwithstanding your reference to cases involving other agencies, NHTSA does not have authority to grant exemptions except as provided under section 123. In the early years of the Safety Act, the agency claimed that it had inherent authority to grant to a single manufacturer (Checker Motors Corporation) an extension of the effective date for complying with a standard. On review, the courts held that such an extension was equivalent to an exemption from a safety standard and that NHTSA did not have authority to grant any exemptions except as provided under section 123.

As the District Court stated in Nader v. Volpe, 320 F. Supp. 266, 269 (D.D.C. 1970):

The Court notes that when the Act was originally adopted, Section 1410 did not exist. At first, the Department of Transportation did not feel that it had the statutory authority to grant single manufacturer extensions, but due to the hardship felt by some small manufacturers of specialty cars, the Congress enacted Section 1410. This section, however, is specifically limited to manufacturers who annually produce five hundred cars or less.

Thus, when there was an awareness on the part of Congress that special provisions should be made for single manufacturers, such provisions were restricted. Congress did not provide extensions for single car manufacturers across the board. In fact, from the action it did take, it is logical to presume that it never intended to have a single manufacturer extension for producers who exceeded the five hundred vehicle limit, and the Court so holds.

Although Congress subsequently amended section 123 to broaden the circumstances under which exemptions could be granted, the foregoing legal principle was affirmed by the D.C. Circuit. Nader v. Volpe, 475 F.2d 916, 918 (D.C. Cir. 1973):

And we think it clear, both under the version of Section 1410 initially before us and under Section 1410 as amended by Public Law No. 91-548, that the Secretary's sole authority to exempt a manufacturer from a safety standard, even if that exemption takes the form of a postponement of the effective date of the safety standard for a single manufacturer, derives from Section 1410. THERE IS NO IMPLIED AUTHORITY TO GRANT EXEMPTIONS OR POSTPONEMENTS IN SITUATIONS NOT ENCOMPASSED BY THAT SECTION (emphasis supplied).

Although your April 24 letter focussed on Philatron's request for a temporary exemption, you have also suggested that the agency could amend FMVSS No. 106 "without resort to the full (notice and comment) rulemaking procedure," citing 49 CFR S 553.13. Contrary to the implication of your letter, the fact that NHTSA has granted Philatron's petition for a determination of inconsequentiality with respect to the hose assemblies that were manufactured and sold before the company's determination of noncompliance does not automatically mean that it is appropriate to amend the standard prospectively without prior notice and comment. Moreover, even if the agency had decided that an amendment was appropriate, it would still need to determine the precise form and content of the amendment. For example, we must ensure that the amendment goes no further than is consistent with safety. Identifying where and how to achieve that balancing is precisely the sort of decision that notice and comment was intended to help agencies analyze and resolve.

Under section 553.13 and section 553(b)(B) of the Administrative Procedure Act, 5 U.S.C. S 551(b)(B), NHTSA must provide notice of and an opportunity to comment on proposed rules unless the Administrator, "for good cause, finds that notice is impracticable, unnecessary, or contrary to the public interest ...." We are unable to make such a finding in this rulemaking proceeding. Courts have upheld agency actions bypassing the notice-and-comment requirement only under circumstances that are far more compelling than those which confront NHTSA and Philatron in this rulemaking.

The term "impracticable" is narrowly construed by the courts. The legislative history of the APA emphasizes that narrowness: "'Impracticable' means a situation in which the due and required execution of the agency functions would be unavoidably prevented by its undertaking public rulemaking procedures." S. Rep. No. 752, 79th Cong., 1st Sess. 16 (1945). The difficulty of showing impracticability is demonstrated by the fact that the existence of a near- term statutory or judicial deadline is not, by itself, sufficient to establish impracticability. U. S. Steel Corp. v. Environmental Protection Agency, 595

F.2d 207, 213 (5th Cir. 1979). An agency faced with such a deadline must go further and show that even had it acted diligently, there was insufficient time available to obtain public comment. The extent of the necessary showing is suggested in a case involving a different type of deadline. In that case, an agency was upheld after it adopted a last-minute temporary delay in the implementation of a new requirement without providing notice and comment. The agency was able to demonstrate that, despite its diligence in attempting to implement the requirement, it was forced to conclude shortly before the requirement's effective date that compliance by industry in general with the requirement was not yet feasible. Council of the Southern Mountains, Inc., v. Donovan, 653 F.2d 573 (D.C. Cir. 1981).

In the present situation, there is no showing that notice and comment would be impracticable. The oil resistance requirement has been a part of FMVSS No. 106 for many years. Pre-production testing by Philatron of its hose to determine whether there was sufficient basis to certify compliance with all applicable requirements should have revealed that there would be a compliance problem, and should have led Philatron to seek an amendment to the standard at that time.

"Unnecessary," as used in section 553, is confined to those situations in which the administrative rule is "a routine determination, "insignificant in nature and impact," and inconsequential "to the industry and to the public." Texaco, Inc. v. Federal Power Commission, 412 F.2d 740 (3rd Cir. 1969). It is clear that Philatron's requested amendment to FMVSS No. 106 is a significant matter that is important to the brake hose and motor vehicle industry. As you are aware, Philatron's petition for an inconsequentiality determination elicited a large and contentious response. Further, the issues in a rulemaking to amend the oil resistance requirement would not be limited, as they were in the inconsequentiality proceeding, to the safety significance of the failure of the hoses previously manufactured by Philatron to comply with that requirement. The agency would also have to address such issues as which applications of brake hose should be excluded from the oil resistance requirement, whether hoses so excluded should be subjected to a labelling requirement, and whether other requirements should be adopted in lieu of the oil resistance test. Therefore, we cannot conclude that notice and comment is "unnecessary."

Further, we cannot conclude that notice and comment would be "contrary to the public interest." According to the legislative history of the APA, "'Public interest' supplements the terms 'impracticable' or 'unnecessary;' it requires that public ride-making procedures shall not prevent an agency from operating, and that, on the other hand, lack of public interest in rule-making warrants an agency to dispense with public procedure." S. Rep. No. 752 at 16. The public interest exception only applies when the delay caused by notice and comment would cause real harm to the public, not mere inconvenience to the agency or members of the public.

NHTSA is aware of Philatron's assertion that if the standard is not amended promptly, the company will have to lay off workers. It is also aware of Philatron's claim about the performance of its hoses relative to the hoses of its competitors. However, the benefits and safety consequences of Philatron's hoses are not universally accepted. Based on the public response to the petition for an inconsequentiality determination, it is highly likely that there would be a similar outpouring of comments in response to a proposal to amend the oil resistance requirements as Philatron has suggested. Accordingly,

the agency is unable to conclude on the basis of the present record that the public interest warrants an immediate amendment of the standard.

In view of the foregoing, NHTSA will seek public comment on its impending proposal to amend FMVSS No. 106. Please be assured that the agency will take appropriate steps to complete this proceeding as quickly as possible.

Sincerely,

Paul Jackson Rice Chief Counsel, NHTSA

ID: nht92-7.31

DATE: April 23, 1992

FROM: John J. Duncan, Jr. -- Member of Congress, House of Representatives, Washington, DC

TO: Jerry R. Curry -- Administrator, NHTSA

TITLE: None

ATTACHMT: Attached to letter dated 5/29/92 from Jerry Ralph Curry to John J. Duncan, Jr. (A39; Part 571.3)

TEXT:

I am writing in regard to a problem which has been brought to my attention by Clarence Lowe of the Campbell County Comprehensive High School.

Attached is correspondence received from Mr. Lowe in which he outlines the difficulties being experienced in using vans for the Campbell County School System.

As you may know, Campbell County made the national news recently when they simply ran out of funds for bus transportation to get children to school. Campbell County is a very rural area. Furthermore, because of economic hardships, the average income per capita is very low making it even more difficult for parents to get their children to school if transportation is not provided by the school system.

Even though bus transportation was restored recently, another problem has arisen with regard to using vans to transport students for such things as off-campus curriculum experiences or extra-curricular activities. In the instance of extra-curricular activities, many times, because of this restriction, this means splitting the students up and transporting them in automobiles so they will be able to get to the event.

Although none of us want to put our children at risk, I wonder what the logic of this restriction is if, in fact, it only results in either restricting a child's education, such as off-campus curriculum, or transporting children in an even less safe manner by reverting to individual cars filled to capacity.

Unfortunately, with the financial restraints we are all witnessing at the federal, state and local government levels the added costs of trying to convert these vans to meet the standards set forth by the National Highway Traffic Safety Administration (NHTSA) appear to have put an unrealistic and unsurmountable burden on our schools.

Attached is a copy of a letter from Mr. Ernest Farmer, Director of Pupil Transportation for the State of Tennessee. Mr. Farmer appears to agree that there may be reason to investigate this matter. At present, Mr. Farmer feels that he has no alternative but to comply with these federal mandates unless directed otherwise by NHTSA. In telephone discussions with your Chief Counsel, Ken Weinstein, there was some question as to whether these restrictions were on the manufacturers of these vans or on the school systems that were using older, previously purchased vans for transportation of students.

Your response specifically outlining what federal requirements must be complied with would be sincerely appreciated. Also, it would be appreciated if you would advise me as to whether or not any changes in regard to the use of older, previously purchased vans were done through specific legislative changes or through regulations.

Your assistance in this matter would be greatly appreciated. With best wishes and personal regards, I am your truly.

Attachments

Letter dated 2/2/192

To: Congressman John J. Duncan, Jr.

House of Representatives Attention Judy Whitbred Washington, DC

Dear Congressman Duncan:

The purpose of this letter is to clarify our conversation last week concerning the problem of vans held for use in our vocational programs in the Campbell County (Tennessee) School System.

As you are aware, the Campbell County Board of Education elected to end all bus transportation for its students in late October due to severe budget deficits. This caused a great hardship for our schools, students, parents, and the county in general. Last week the County Commission approved budget transfers within the school budget to allow the restart of bus transportation on February 12, for 37 school days. We still face a possibility of no bus transportation at the end of those 37 days.

The next day after buses stopped running in our county, Tennessee State Department of Education officials within the Pupil Transportation Division informed our county education department that all school vans must be pulled off the road. They cited regulations of the U.S. Department of Transportation based on congressional legislation concerning the use of vans to transport students. I forwarded to you, after our conversation, copies that I obtained from our vocational director that related to this matter and seemed to be the basis for which the state department made its decision.

Our county vocational department had assisted our two high schools with the purchase of four vans for the purpose of transporting general building trades students from the school to the job site and back to school each day. This hands-on work experience is vital to teaching students the building trade skill. In addition, the county vocational department purchased another van for use by all vocational programs to transports students to off-campus curriculum experiences (such as clinical training for our health occupations students), meetings, conferences, conventions, and other school related functions. The building trades program has always had some types of vans for transportation purposes. Also, our athletic department has their own vans for transporting student athletes to the game sites. They too were pulled off the road. In a

time of no bus transportation and critical budget cuts, another hardship was imposed upon our educational programs.

Thus, the purpose of my contacting your office is to see if the regulations mandated concerning school van usage is still applicable and if so, might there be some relief at the federal level to allow us to use the vans or bring them into compliance without placing our school system in danger of tort liability. We would hope that the cost to comply would not prohibit our using the vans. Due to limited funds and lack of budgeted monies this may not even be an option.

The vans purchased by our vocational department are 15 passenger type. Vans are classified as either multi-purpose passenger vehicles or van conversions. Vans containing more than ten seating accommodations must meet Federal Motor Vehicle Safety Standards. All vans in questions were purchased prior to the November 14, 1990 memo from the Tennessee Department of Education addressing the use of vans. Thus, it appears that our school officials had no knowledge that such regulations applied. Further, a state inspection was held on May 3, 1988, of all buses and vans in our county. All of our vans and the athletic vans passed this inspection. The only requests made of us was to number the vans, install a fire extinguisher and a first-aid kit. Only one of the vocational vans in question was in service at that time. This van, a 1987 Dodge, is held for use by all vocational programs was inspected and passed. Following that time, four new vans were purchased to replace older vans in the general building trades program. Purchased on December 8, 1988, were two 89 Ford vans, on March 21, 1989, one 89 Ford van, and on January 12, 1991, one 90 Ford Van. I am enclosing supporting memos of this inspection and related van purchase transactions.

Upon order from state officials, our vocational director, Miss Sharon Mills, stopped all vocational instructors from using the vans to transport students. Since that time our building trade students have not been to a job site for training. There is no way to transport them. Using school buses is much too expensive as those buses are privately owned. An off-campus building project had to be canceled due to the transportation problem. Their vans sit parked on the campus. An option might be to sell all the vans and use the money received from the sale toward purchase of "approved" vans. That might sound good, but there is no way to replace like numbers and the cost of new vehicles would not be something affordable in our already strapped school budget.

The van which I am most familiar with is the 1987 Dodge. I have used this van to take students to leadership conferences, conventions, competitive events, and other related programs that concern the area which I teach. This van has a tag attached which classifies it as a bus and states that this vehicle conforms to all applicable Federal Motor Vehicle Safety standards on the date of manufacture.

To cite an example of our dilemma, on February 6, 1992, I had to use private automobiles to transport 12 students to a competitive event in Knoxville (some 40 miles) while the van could only be used to carry our computer equipment. No students were allowed to ride in the van. This is the same problem that our athletic teams face on a regular basis while their vans sit parked or carry their equipment. The burden of getting transportation has

placed many restrictions upon our curricula and extra-curricula activities. Our students stand again to be the losers in the whole matter. I am already faced with finding suitable transportation for my students to their state competition in Nashville on March 12-14, and the national competition in Cincinnati in late April. This is a similar problem faced by Several of my colleagues in our county and apparently across the state.

I would greatly appreciate your assistance in investigating this matter. Please let me know if I can supply additional information. You may reach me at (615) 562-9118 (school) or (615) 562-1303 (home). You can reach the vocational director Sharon Mills, at (615) 562-8377.

Sincerely yours,

Clarence Lowe, Instructor Office Education/Computer Technology

Letter dated 3/20/92

To: Congressman John Duncan House of Representatives 115 Cannon Building Washington, D.C. 20515

Attention: Ms. Judy Whitbred

Dear Congressman Duncan:

In 1975 the National Highway Traffic Safety Administration (NHTSA) amended its definition of a school bus to include vehicles that are "likely to be significantly used" for pupil transportation. The memo, in an effort to further clarify the agency's action, noted that "VAN TYPE VEHICLES, USED FOR MANY PURPOSES, WILL BE PARTICULARLY AFFECTED BY THE NEW AMENDMENT --- SINCE THEY ARE NOT DESIGNED FOR, OR INTENDED TO BE USED AS, A PRIMARY SOURCE OF TRANSPORTATION FOR SCHOOL CHILDREN. THE AMENDMENT MAKES THE VANS SUBJECT TO FEDERAL MOTOR VEHICLE SAFETY STANDARDS (FMVSS) if they are SOLD FOR USE AS A SCHOOL BUS". (The effective date of this amendment to the Motor vehicle and School Bus Safety Act, AS AMENDED IN 1974, is OCTOBER 27, 1976). (See Attachment #1)

The FORD RENT-A-CAR SYSTEM, a division of the FORD MOTOR COMPANY, issued a bulletin (FRCS Bulletin #923) to its members instructing them not to rent their CLUB WAGONS and SUPER WAGONS for the transportation of PRE PRIMARY, PRIMARY OR SECONDARY SCHOOL STUDENTS to and from school or school related events since they fall, by virtue of their seating capacity, within the definition of a bus. (Ten (10) capacity or greater) (49 Code of Federal Regulations S 571.3). (See Attachment #2)

In November 1990, we issued a follow-up memo on the subject to all Superintendents/Directors of schools with programs of pupil transportation service in an effort to bring them into total compliance with the provisions of this NHTSA Amendment. (See Attachment #3)

The memo, perhaps, understandably became one of the most, if not the most, controversial memos ever issued from this office for several reasons. In the first place, the use of van type vehicles for school transportation purposes dates from the years of World War II when it was virtually impossible to purchase newly manufactured, or even factory reconditioned, buses. In the next place, these units (VANS) are much more "economical" to purchase than the specially constructed "VAN CONVERSIONS" hence the basis of their growing popularity among school officials as "extracurricular vehicles". Finally, school officials are hard pressed to find accidental data that conclusively supports this highly questionable action on the part of the NHTSA. Few, if any, can document, from personal experience in their own school systems, multifatality accidents involving their useage. They have no problem, however, detailing accidents, though fortunately not multi-fatal at this time, involving the operation of passenger cars, station wagons and other type vehicles placed in service to compensate for their loss.

As the State Director of Pupil Transportation, I have no alternative, as I see it, but to comply with such Federal Regulations unless directed to do otherwise which is something that I do not see forthcoming. I must, therefore, continue my enforcement efforts until the amendment is withdrawn by the NHTSA, which is something else that I do forsee as happening.

Again, thank you for your interest in pupil transportation and for your efforts to assist our school officials in maintaining an "acceptable" level of service for their public school children.

Sincerely yours,

Ernest Farmer, Director of Pupil Transportation

cc: Wayne Qualls Captain Ralph Swift

NHTSA 12/30/75 press release

Concerns the definition of school bus. (Text omitted)

ID: 11647MLV

Mr. Michael Love
Manager, Compliance
Porsche Cars North America, Inc.
100 West Liberty Street
P.O. Box 30911
Reno, Nevada 89520-3911

Dear Mr. Love:

This responds to your letter of December 19, 1995, requesting information concerning the readiness indicator requirement in S4.5.2 of Standard No. 208, Occupant Crash Protection. I apologize for the delay in responding.

S4.5.2 of Standard No. 208 states:

An occupant protection system that deploys in the event of a crash shall have a monitoring system with a readiness indicator. The indicator shall monitor its own readiness and shall be clearly visible from the driver's designated seating position.

You ask whether this requirement applies (1) to a voluntarily-installed inflatable restraint (not needed to comply with Standard No. 208), or (2) to an inflatable restraint installed to meet the requirements of another standard (such as Standard No. 214, Side Impact Protection). You state that Porsche believed that in both of these situations the manufacturer could install:

- no readiness indicator, or - a separate readiness indicator from that required by Standard No. 208, or - a readiness indicator combined with that required by Standard No. 208.

As explained below, for both types of inflatable restraints, we agree with the first two of these statements, but not necessarily with the third.

Voluntarily-Installed Inflatable Restraints

A crash-deployed occupant protection system installed in addition to required safety systems would not be required to

comply with the provisions of the safety standards. Thus, a readiness indicator would not be required. However, in the interest of safety, we would urge you to consider voluntarily providing a readiness indicator for the system.

As explained below, if you voluntarily provide a readiness indicator, and decide to combine it with the required readiness indicator, the information provided by the former must not confuse or obscure the information provided by the latter about the required air bag. The indicator must distinguish between the different air bag systems, such as by having dissimilar signals for the different systems.

While systems or components installed in addition to required safety systems are not required to comply with the standards, they must not make inoperative the compliance of the required systems (49 U.S.C. '30122). We urge you to make sure that by combining a voluntarily-installed readiness indicator with the required indicator, you do not prevent the latter from complying with Standard No. 208. If the messages of the two indicators were not distinguishable, a driver would not know if the illuminated telltale showed a problem with the occupant protection system installed to comply with Standard No. 208, or a problem with another system being monitored.

NHTSA addressed a related issue in a rulemaking that allowed manufacturers to install a manual cut-off device for a passenger-side air bag in certain situations (60 FR 27233; May 23, 1995). The agency stated there that the readiness indicator must monitor only the driver's air bag when the passenger-side air bag was deactivated. In other words, the indicator must not be affected by the deactivated state of the passenger-side air bag.

Systems Installed for a Standard Other than Standard 208

The requirement for a readiness indicator (S4.5.2) applies only to systems that are installed to comply with the requirements of Standard No. 208, and not to systems installed to comply with another standard. Air bag systems installed pursuant to Standard No. 208 are generally installed to meet the frontal protection requirements of that standard. While a readiness indicator is not required for systems installed for other purposes, we would urge the manufacturer to provide a means of monitoring the readiness of the system, consistent with the cautions above.

I hope this information has been helpful. If you have other questions or need some additional information, please contact Mary Versailles of my staff at this address or by phone at (202) 366-2992.

Sincerely,

Samuel J. Dubbin Chief Counsel

ref:208#214 d:4/25/96

ID: 12186.JEG

Mr. Richard Korytowski
Advantage Autobody Parts
3317 E. Jefferson Blv.
Grand Prairie, Texas 75051

Dear Mr. Korytowski:

This responds to your letter asking about the implications of used car dealers selling vehicles which have not had their supplemental restraint systems (air bags) replaced after an accident. I apologize for the delay in our response. You asked whether "full disclosure" of the fact that the air bag is not operating or has not been replaced, and "accepting [the buyer's] signature of being aware of the vehicle's condition and faults-- it is sole responsibility of such a buyer to notify his or hers insurance company or install SRS on one's own without any further legal implications of the seller, regardless of the buyer's action."

As discussed below, Federal law does not require replacement of a deployed air bag in a used vehicle, or prevent a used car dealer from selling such a vehicle. However, this subject area could be covered by State law.

By way of background information, the National Highway Traffic Safety Administration (NHTSA) is authorized to issue Federal motor vehicle safety standards that apply to the manufacture and sale of new motor vehicles and new motor vehicle equipment. One of the standards we have issued is Standard No. 208, "Occupant Crash Protection" (49 CFR 571.208). Manufacturers install air bags in passenger cars and light trucks as one method of complying with the occupant protection requirements of Standard No. 208.

While the Federal motor vehicle safety standards apply only to new motor vehicles and new motor vehicle equipment, Federal law does limit the modifications that can be made by certain businesses to used vehicles. Manufacturers, distributors, dealers, and repair businesses are prohibited from "knowingly making inoperative" any device or element of a design installed on or in a motor vehicle in compliance with an applicable safety standard (49 U.S.C. 30122).

While the "make inoperative" provision would prohibit a dealer or repair business from knowingly disabling safety equipment, such

as an air bag, installed in compliance with an applicable safety standard, the provision does not impose an affirmative duty on dealers or other persons to repair equipment on a used vehicle that was damaged in a crash. Therefore, Federal law does not require replacement of a deployed air bag in a used vehicle.

Despite the absence of any requirement in Federal law, State law may require replacement of deployed air bags. You may wish to contact the State of Texas to learn if there are any applicable laws or regulations. Additionally, you may wish to consult a private attorney with respect to potential liability of a repair facility for failure to replace an air bag after a crash, or of a used car dealer for selling such a vehicle.

In addition to the legal considerations, I note that, for vehicles being repaired for road-use, NHTSA has long recommended the repair, restoration, or replacement of all safety systems that may have been damaged in a crash. These systems include the safety belts, air bag systems (including sensors), built-in child restraints, and other vehicle systems such as brakes, accelerator controls, transmission gear and "park" function, etc. If you would like guidance as to which vehicle systems may require inspection or repair after a crash, we suggest that you contact the selling dealer, zone representative, and/or manufacturer of the vehicle in question.

I hope this information is helpful. If you have further questions, please feel free to contact Edward Glancy of my staff at (202) 366-2992.

Sincerely,

John Womack

Acting Chief Counsel

ref:208

d:10/16/96

ID: 17170.volvo

Mr. William Shapiro
Director, Regulatory Compliance and Environmental Affairs
Volvo Cars of North America, Inc.
Volvo Drive
Rockleigh, NJ 07647-0913

Dear Mr. Shapiro:

This responds to your January 30, 1998, letter to the National Highway Traffic Safety Administration (NHTSA) following up on an earlier interpretation to you concerning Volvo's manufacture of a rear-facing toddler restraint. The restraint would be used rear-facing only, and recommended for children weighing between 20 and 40 pounds (lb.). I regret the delay in responding.

Your earlier letter asked about the labeling requirements in Federal Motor Vehicle Safety Standard No. 213, "Child Restraint Systems," for a rear-facing restraint that would be recommended only for children weighing 20 to 40 lb. You did not describe the restraint in detail. Your present letter provides the following description:

[T]he Volvo CRS [child restraint system] is secured by a Type I seat belt assembly (as defined by in FMVSS 209). Additionally, the Volvo CRS is secured by a bar which is attached to the back of the Volvo CRS, the other end of the bar resting against the vehicle (certification platform) floor. This same configuration and installation procedure would be used in a vehicle during normal, i.e., "everyday," use.

You specifically ask about the "installation" requirement in S5.3.2 of the standard, as it would apply to your restraint. S5.3.2 states, in pertinent part:

When installed on a vehicle seat, each add-on child restraint system . . .shall be capable of being restrained against forward movement solely by means of a Type I seat belt assembly (defined in 571.209) that meets Standard No. 208 (571.208), or by means of a Type I seat belt assembly plus one additional anchorage strap that is supplied with the system and conforms to S5.4. . . .

You ask for confirmation that the term "additional anchorage strap" would include the bar you would use in your system. We have carefully considered your suggested interpretation and regret that we cannot confirm it. We interpret a "strap" to consist of flexible material. S5.3.2 specifies that a strap may be provided so long as the strap conforms to S5.4. Because S5.4 sets forth requirements for belts, belt buckles and belt webbing, it is clear that any "strap" provided must be of belt webbing. Further, S5.3.2 is meant to support the standardization of the means of attaching child restraints to increase the likelihood that child seats are properly installed.  The reference to the "additional anchorage strap" made allowances for the provision of a top tether anchorage strap, which was at one time provided on most, if not all, forward-facing child restraints. The bar you ask about would be unique to your system and inconsistent with the standardized method of attaching a child restraint.

It should be noted that determining conformance with S5.3.2 is made when the child restraint seat is "on a vehicle seat." Due in part to the quoted language, the agency will assess the performance of the child seat using just the vehicle seat and not the floor. Also, under S6.1.2 of Standard 213, your type of child restraint system must meet performance requirements when "secured to the standard vehicle seat using only the standard vehicle lap belt." The quoted phrase means that NHTSA will not use a means supplemental to the lap belt, such as a bar, of securing a child seat to the vehicle seat in the agency's compliance test. The lap belt alone is used because the agency found that a very high percentage of parents did not use the supplemental tether strap to secure their child seats even when they knew the strap was needed to provide their child protection. Your bar would be supplemental to the lap belt attachment, similar to a tether on a child seat. Similar to a tether, there is a strong likelihood that the bar would be misused with the seat. Accordingly, for the same reasons that a tether is not used in the compliance test, the bar could also not be used in the compliance test.

I hope this answers your questions. If we can be of further assistance, please contact Deirdre Fujita of my staff at (202) 366-2992.

Sincerely,
Frank Seales, Jr.
Chief Counsel
ref:213
d.7/6/98

ID: 12247.ztv

Mr. Shlomo Zadok
Zadok Research Laboratories
739 North Occidental Blvd., Suite #6
Los Angeles, CA 90026

Dear Mr. Zadok:

This replies to your letter of July 25, 1996, asking for an interpretation as to the applicability of Federal laws to a "third brake light" that you have designed.

Federal Motor Vehicle Safety Standard No. 108 Lamps, Reflective Devices and Associated Equipment (Title 49 Code of Federal Regulations Sec. 571.108) is the Federal regulation that prescribes lighting equipment for new motor vehicles. Standard No. 108 refers to this item of equipment as a "center highmounted stop lamp" which is frequently abbreviated to "CHMSL." As Mr. Vinson explained to you in several phone talks on the subject, Standard No. 108 has required the CHMSL on all passenger cars manufactured on and after September 1, 1986, and on light trucks and vans manufactured on and after September 1, 1993. Both original and replacement CHMSLs for these vehicles must meet the requirements specified in Standard No. 108. Further, if you sell a CHMSL in the aftermarket for replacement of an original equipment CHMSL, you are required to certify that it meets the original equipment requirements, either by a DOT symbol on the lamp, or a statement on a label or tag attached to it or its container.

The unusual feature of your CHMSL is that it will carry a message in "big block letters" that don't flash or blink. Whether a "message" of this nature is permissible on original CHMSLs and their replacements depends on whether your CHMSL conforms to paragraph S5.1.1.27 of Standard No. 108. The most important of these requirements is that a CHMSL have an effective projected luminous lens area of not less than 4 square inches, that it have a signal visible to the rear through a horizontal angle from 45 degrees to the left to 45 degrees to the right of the vehicle's longitudinal axis, and that it have the minimum photometric values in the amount and location listed in Figure 10 of Standard No. 108 (the most difficult requirement to meet with a "message" imposed on the lens).

Your CHMSL as original equipment or its replacement is also subject to the prohibition of paragraph S5.1.3 that it not "impair the effectiveness" of any lighting equipment required by

Standard No. 108. This means that the message must not distract or confuse following drivers from reacting to the CHMSL and other stop signals exactly as they would were the message not there.

You also state that the CHMSL "is not so large as to block the driver's rear view." The Federal requirement is that, with the CHMSL in place, a vehicle must continue to conform to the rear field of view requirements of Safety Standard No. 111 Rearview Mirrors.

If you sell your CHMSL in the aftermarket as a replacement only for use on older vehicles that did not carry a CHMSL as original equipment, there is no Federal requirement that it comply with Standard No. 108. The sole Federal restriction is that a manufacturer, dealer, distributor, or motor vehicle repair business may not install the CHMSL if it " makes inoperative" any equipment originally installed to meet a Federal motor vehicle safety standard. We interpret this as meaning that your CHMSL must not detract from the stop signal provided by the two original equipment stop lamps, and that it must not create a noncompliance with Standard No. 111. Nevertheless, even if it meets these tests, your aftermarket CHMSL is subject to the laws of each state in which it will be used. We regret that we are unable to advise you on state laws, and suggest that you consult state Departments of Motor Vehicles.

Taylor Vinson will be pleased to answer any further questions you may have. You may call him at 202-366-5263.

Sincerely,

John Womack
Acting Chief Counsel

ref:108

d:8/20/96

ID: 13392.ztv

Mr. Miguel Padres
441 N. Grand Avenue, Suite 350
Nogales, AZ 85621

Dear Mr. Padres:

This is in reply to your e-mail of December 30, 1996, asking for an interpretation of the regulations of this agency as they may affect a business plan you wish to implement. We regret the delay in responding to you but your letter presents novel and complex questions.

You would like to take a 1969 VW Beetle to Mexico and "restore or replace all the parts permitted by the laws, that would continue to make it a 1969 VW Beetle." You refer to 49 CFR 571.7(e) and interpret it as saying that "placing a new body on an old chassis does not produce a new vehicle so long as the engine, transmission, and drive axle (as a minimum) are not new and at least two of which were taken from the same vehicle. You intend to " place a new body on the old chassis" which, to you, would mean that it "would still be a 1969 vehicle." As part of your modifications you would either retain or replace with DOT certified items the original brake hoses, lamps and reflectors, tires, rims, glazing and seat belt assemblies. You would then bring the vehicle back to the United States.

First of all, Sec. 571.7(e) does not apply to passenger cars such as VW Beetles; it applies to trucks. However, according to long-standing agency interpretations, the addition of a new body to the chassis of a passenger car previously in use does not result in the creation of a new motor vehicle that must comply with the Federal motor vehicle safety standards. On the basis of the limited information you have provided us, we do not believe that the parts you have listed that you may replace, together with the body, would exceed this threshold. The vehicle would remain a 1969 model under our interpretations.

Further, our importation regulations do not require that a vehicle comply with the Federal motor vehicle safety standards if it is 25 years old or older (49 CFR 591.5(i)(1)). This means that the modified 1969 Beetle, when imported into the United States after the modifications are made in Mexico, need not comply with the Federal motor vehicle safety standards.

However, if the refurbishing involves sufficient manufacturing operations, the vehicle would be considered a newly manufactured one. This means that it would be required to meet all applicable safety standards in effect at the time of refurbishing (manufacture), and to be certified as conforming to those standards. Because of the variety of fact situations involved, the agency has found it difficult to establish a general requirement, and it provides opinions on a case by case basis.

We are unsure of your connection with Beetlemex, Inc., which shares your street and suite address in Nogales. Beetlemex is advertising on the internet that it is "bringing brand new Beetles into the U.S.", each of which is "officially a restored vehicle, but is actually a brand new Beetle." Beetlemex instals "brand new parts taken off from a brand new sedan" and "at the end, we have a Beetle that has most of the parts from a brand new Beetle." Statements such as these raise the possibility that the threshold has been exceeded. The ad also states that Beetlemex registers and titles the vehicles as well. In our interpretations, we consider it important that a vehicle equipped with a new body on an old chassis would continue to carry its original model year designation for state registration purposes, in this instance, 1969. If the vehicles refurbished by Beetlemex have been registered and titled as 1996 or 1997 models, that is prima facie evidence to us that the modifications have gone beyond what is permissible for the original vehicle to retain its characterization as one manufactured in 1969.

If you have any questions, you may call Taylor Vinson of this office (202-366-5263).

Sincerely,
John Womack
Acting Chief Counsel
ref:591
d.7/28/97