Mr. Kevin Manke

Dakota Manufacturing

Trail-Eze Trailers

P.O. Box 1188
Mitchell, SD 57301

Dear Mr. Manke:

This responds to your letter asking about the force application test procedures of Federal Motor Vehicle Safety Standard (FMVSS) No. 223, Rear Impact Protection. You ask whether the energy absorption test referenced in S6.6(c) of the standard requires that a manufacturer apply a load until the achieved deflection is 125 millimeters (mm). As explained below, the answer is no.

By way of background, the National Highway Traffic Safety Administration (NHTSA) is authorized to issue FMVSSs that set performance requirements for new motor vehicles and items of motor vehicle equipment (see 49 U.S.C. Chapter 301). NHTSA does not provide approvals of motor vehicles or motor vehicle equipment. Instead, manufacturers are required to self-certify that their products conform to all applicable safety standards that are in effect on the date of manufacture. NHTSA selects a sampling of new vehicles and equipment each year to determine their compliance with applicable FMVSSs.  If our testing or examination reveals an apparent noncompliance, we may require the manufacturer to remedy the noncompliance, and may initiate an enforcement proceeding if necessary to ensure that the manufacturer takes appropriate action.

Paragraph S5.2 of FMVSS No. 223 states, in pertinent part: When tested under the procedures of S6 of this section, each guard shall comply with the strength requirements of S5.2.1 of this section at each test location and the energy absorption requirements of S5.2.2 of this section at test location P3. S5.2.2 states that a guard shall absorb by plastic deformation within the first 125 mm of deflection at least 5,650 J of energy at each test location P3. S6.6(c) states that if conducting a test to be used for the calculation of energy absorption levels to satisfy the requirement of S5.2.2 of this section, apply the force to the guard until displacement of the force application device has reached 125 mm.

You state in your letter that your guard meets the load and energy absorption requirements of the standard at a deflection of less than 125 mm. You ask whether in the course of performing the test described in S6.6(c), you need to continue applying force beyond the required values until the displacement of the force application device has reached 125 mm.

You state that due to the increasing rigidity of the guard, a force application device capable of providing a force large enough to produce the full 125 mm of deflection may not be readily available.

Under S5.2.2 of FMVSS No. 223, your guard must absorb at least 5,650 J of energy by plastic deformation within the first 125 mm of deflection. You do not need to continue applying force beyond the required levels in order to certify your product to FMVSS No. 223. It is not necessary for you to continue applying load until 125 mm of deflection is achieved if you are reasonable in your conclusion that the guard meets the standards requirement with less than 125 mm of displacement.

Keep in mind that the test procedures in FMVSS No. 223 describe how NHTSA will test guards for compliance with the standards requirements, and are not binding upon guard manufacturers. A manufacturer is not required to use the standards procedures when certifying compliance with the standard.

Based on the language of the standard, even if the guard appears to have absorbed the required amount of energy before the displacement has reached 125 mm, NHTSA will continue the test because S6.6(c) states "[i]f conducting a test to be used for the calculation of energy absorption levels to satisfy the requirement of S5.2.2 of this section, apply the force to the guard until displacement of the force application device has reached 125 mm. NHTSA follows this procedure because it needs to know how much elastic rebound the guard will exhibit once the load is removed, and the energy returned during the rebound will have to be subtracted when calculating the total energy absorbed. Again, however, a manufacturer is not required to test in the manner specified in the standard; instead it must ensure that the guard will meet the requirements when tested by NHTSA as set forth in the standard.

For your information, NHTSA answered a similar question in a 1997 letter to Mr. Frank Smidler.[1] A copy of that letter has been enclosed for your convenience.

If you have any further questions, please contact Ari Scott of my staff at (202) 366-2992.

Sincerely yours,

Anthony M. Cooke

Chief Counsel

Enclosure

ref:223

d.4/15/08

Dave Templeton, Designer/Drafter

Floe International, Inc.

48473 State Highway 65

McGregor, MN 55760

Dear Mr. McGregor:

This responds to your letter requesting a clarification of lighting standards for trailers. Specifically, you asked whether a specific trailer design is compliant with Federal Motor Vehicle Safety Standard (FMVSS) No. 108, Lamps, Reflective Devices, and Associated Equipment, with regard to the front and rear side marker lamps and side reflex reflectors. We cannot answer all of your questions, because this office does not give advance approvals of designs for motor vehicles or motor vehicle equipment. However, your submission showed that you have placed the front side marker lamps on the trailer tongue of the vehicle. With regard to this specification, we believe that this is a permissible location for those lamps.

By way of background, the National Highway Traffic Safety Administration (NHTSA) is authorized to issue FMVSSs that set performance requirements for new motor vehicles and items of motor vehicle equipment (see 49 U.S.C. Chapter 301). NHTSA does not provide approvals of motor vehicles or motor vehicle equipment.  Instead, manufacturers are required to self-certify that their products conform to all applicable safety standards that are in effect on the date of manufacture. NHTSA selects a sampling of new vehicles and equipment each year to determine their compliance with applicable FMVSSs.  If our testing or examination reveals an apparent noncompliance, we may require the manufacturer to remedy the noncompliance, and may initiate an enforcement proceeding if necessary to ensure that the manufacturer takes appropriate action.

For reference, side marker lamps are required by S5.1 of Standard No. 108. The requirements for side marker lamps are specified in Table IV of the standard, which states that side marker lamps are required [o]n each side 1 red as far to the rear as practicable, and 1 amber as far to the front as practicable. The lamps are also required to be located not less than 15 inches above the surface of the road.

Whether or not the trailer you pictured complies with Standard No. 108s requirement for side marker lamps depends on several factors. As you did not provide any dimensions of the trailer or specify the exact placement of the lamps, we will not comment on whether

or not they appear to be compliant. As it appears your trailer may be quite small, we will note that S5.1.1.15 states that A trailer that is less than 6 feet in overall length, including the trailer tongue, need not be equipped with front side marker lamps and front side reflex reflectors. Therefore, front side marker lamps and reflex reflectors may not be required on your trailer, depending on its length.

The other salient characteristic of your trailer shown in the picture is that the front side marker lamps are located on the trailer tongue (or tow bar). The requirement for the location of the amber front side reflex reflector for your vehicle is given in Table IV-Location of Required Equipment, and states that they should be located as far forward as practicable. Paragraph S5.3.1.3 of Standard No. 108 further modifies this requirement, stating that [o]n a trailer, the amber front side reflex reflectors and amber front side marker lamps may be located as far forward as practicable exclusive of a trailer tongue [emphasis added]. We interpret this paragraph to mean that it is permissible to locate the front side marker lamps on the body of a trailer, even if it is practicable to locate them on the trailer tongue. It does not, however, preclude a manufacturer from locating the amber reflex reflectors on the trailer tongue, as long as they meet all other relevant requirements from that position. We note that lamps on the trailer tongue may potentially be obscured by the trailer and/or tractor, depending on the viewing angle.

If you have any further questions, please contact Ari Scott of my staff at (202) 366-2992.

Sincerely yours,

Anthony M. Cooke

Chief Counsel

ref:108

d.4/17/08

Ms. Joan Ward

P.O. Box 5812

Knoxville, TN 37928

Dear Ms. Ward:

This responds to your letter asking whether S5.5.1 of Federal Motor Vehicle Safety Standard (FMVSS) No. 201, Occupant Protection in Interior Impact, only appl[ies] to the armrest on the door panel or does it apply to any armrest in the pelvic area, such as the armrest in the center of the vehicle between the front seats? Our answer is that each armrest, including an armrest located in the center of the vehicle between the front seats, must meet the requirements of S5.5.1.

By way of background, the National Highway Traffic Safety Administration (NHTSA) is authorized to issue FMVSSs that set performance requirements for new motor vehicles and items of motor vehicle equipment (see 49 U.S.C. Chapter 301). NHTSA does not provide approvals of motor vehicles or motor vehicle equipment.  Instead, manufacturers are required to self-certify that their products conform to all applicable safety standards that are in effect on the date of manufacture. NHTSA selects a sampling of new vehicles and equipment each year to determine their compliance with applicable FMVSSs.  If our testing or examination reveals an apparent noncompliance, we may require the manufacturer to remedy the noncompliance, and may initiate an enforcement proceeding if necessary to ensure that the manufacturer takes appropriate action.

S5.5 of FMVSS No. 201 specifies requirements for armrests that are provided in a vehicle. The requirements in paragraph S5.5.1 apply to armrests generally, and the standard does not differentiate between an armrest in the center of a vehicle and an armrest on a side door panel. Accordingly, it is our opinion that an armrest located between the front seats of a vehicle is subject to the requirements of FMVSS No. 201.

If you have any further questions, please contact Ari Scott of my staff at (202) 366-2992.

Sincerely yours,

Anthony M. Cooke

Chief Counsel

ref:201

d.11/20/08

Ms. Amy Schonberger

3833 Princeton Oaks

Kennesaw, GA 30144

Dear Ms. Schonberger:

This responds to your letter asking how Federal Motor Vehicle Safety Standard (FMVSS) No. 213, Child restraint systems, and FMVSS No. 302, Flammability of interior materials, apply to your aftermarket product. You have invented a type of strap holder for use with child restraint systems.

By way of background, the National Highway Traffic Safety Administration (NHTSA) is authorized to issue Federal Motor Vehicle Safety Standards (FMVSSs) that set performance requirements for new motor vehicles and items of motor vehicle equipment (see 49 U.S.C. Chapter 301, National Traffic and Motor Vehicle Safety Act, (Vehicle Safety Act)). NHTSA does not provide approvals of motor vehicles or motor vehicle equipment. Instead, manufacturers are required to self-certify that their products conform to all applicable safety standards that are in effect on the date of manufacture. NHTSA selects a sampling of new vehicles and equipment each year to determine their compliance with applicable FMVSSs. If our testing or examination reveals an apparent noncompliance, we may require the manufacturer to remedy the noncompliance, and may initiate an enforcement proceeding, if necessary, to ensure that the manufacturer takes appropriate action. NHTSA also investigates safety-related defects.

In your letter, you described your product with a detailed narrative that focused on specific aspects of design, such as where magnetized strap pads and stand-alone magnets are placed, but which provided a narrow overall description of the product. This letter is based on our understanding of the information you presented.

Your product is intended to keep the shoulder and buckle harness straps of a 5-point child restraint system clear of the seating area of the child restraint so that when the child is placed in the child restraint, he or she will not sit on the harness and crotch straps.

You state that your product moves and temporarily fastens the shoulder harness straps and buckle harness strap to the shell of the car seat, away from where the child sits. It appears that your invention consists of three main components: a strap holder for the left shoulder harness strap, a strap holder for the right harness strap, and a holder for the crotch strap. Each strap holder is attached to the respective strap, and each contains a magnet that is designed to connect to magnets that are attached to the left, right and lower sides of the shell of the child restraint. When the child is removed from the child restraint, it is intended that the harness and crotch straps will attach to the respective magnets and thus be kept clear of the seating surface area.

Discussion

There currently are no Federal motor vehicle safety standards (FMVSSs) that directly apply to your product. Our standard for "child restraint systems," FMVSS No. 213, applies to "any device except Type I or Type II seat belts, designed for use in a motor vehicle or aircraft to restrain, seat, or position children who weigh 65 pounds or less." (We currently are considering a proposal to increase this weight limit to 80 pounds.) The standard does not apply to aftermarket accessory items, such as a strap holder device that is used with a child restraint system.

While no FMVSS applies to the invention, as a manufacturer of motor vehicle equipment, you would be subject to the requirements of the Vehicle Safety Act concerning the recall and remedy of products with safety-related defects (49 U.S.C. 30118-30121). I have enclosed an information sheet that briefly describes those and other manufacturer responsibilities. In the event you or NHTSA determines that your product contains a safety-related defect, you would be responsible for notifying purchasers of the defective equipment and remedying the problem free of charge.

In addition, while it is unlikely that your product would be installed by a motor vehicle manufacturer, distributor, dealer or repair business, 49 U.S.C. 30122 prohibits those businesses from installing the device if the installation "makes inoperative" compliance with any safety standard.

There are some aspects of performance required by FMVSS No. 213 that could be affected by your product. The standard requires specific levels of performance for child restraints seats as a system and also for seat webbing and buckles as components of the child restraint system, whose performance could be affected by an aftermarket strap holders that attaches to each strap. An aftermarket strap holder attached to the webbing could affect the performance of the webbing in a crash. In addition, FMVSS No. 213 specifies flammability resistance requirements for child restraints. Any person listed in 30122 who installs your product must not make inoperative the flammability resistance of the child restraint system.

The prohibition of 30122 does not apply to individual owners who install equipment in their own vehicles. Thus, individual owners may install any item of motor vehicle equipment regardless of its effect on compliance with Federal motor vehicle safety standards. However, NHTSA encourages vehicle owners not to degrade the safety of their vehicles or motor vehicle equipment.

State or local jurisdictions might have their own requirements for products such as yours. For information about those requirements, you should contact the State Departments of Motor Vehicles.

I hope this information is helpful. If you have any other questions, please contact Deirdre Fujita of my staff at this address or by phone at (202) 366-2992.

Sincerely yours,

Anthony M. Cooke

Chief Counsel

Enclosure

ref:213

d.11/20/08

Hugo De Roo, Area Export Manager

B & C Export USA

Van Hool NV

Bernard Van Hoolstraat 58

B-2500 Lier Koningshooikt

BELGIUM

Dear Mr. De Roo:

This responds to your letter asking about Federal Motor Vehicle Safety Standard (FMVSS) No. 217, Bus emergency exits and window retention and release, in connection with a double decker bus, the TD925 Series, that Van Hool intends to sell in the United States. From the information you provided, we understand that the upper deck of the TD925 bus is fully enclosed. You provided blueprints and photographs of the bus, and a technical note discussing how you plan to meet the emergency exit requirements in FMVSS 217 and the counterpart European regulations.

You did not ask any particular question about those plans. Accordingly, as your bus exceeds 10,000 lb., gross vehicle weight rating (GVWR), we focused on paragraph S5.2.2 of the standard, which sets for the requirements for the amount of unobstructed emergency opening in those buses. As explained below, the standard does not contemplate your particular kind of bus and, therefore, does not presently specify any requirements concerning a means by which lower deck occupants can gain access to a roof exit in the upper deck of such a bus. 

I wish to emphasize that under the National Traffic and Motor Vehicle Safety Act, it is your responsibility as a manufacturer of motor vehicles to ensure compliance with the Federal motor vehicle safety standards. The National Highway Traffic Safety Administration (NHTSA) provides interpretations of the Safety Act and the requirements of the safety standards issued under the Safety Act, but our interpretations are based on the information provided in interpretation requests.

The standard at S5.2.1 provides manufacturers with some options as to how they provide emergency exits. It appears that you intend to provide the exits by way of meeting S5.2.2.

As noted above, S5.2.2 specifies requirements for the amount of unobstructed opening for buses with a GVWR of more than 10,000 pounds. Since the materials you provided state that the GVWR of the TD925 is 56,500 lbs, S5.2.2.2 would apply. S5.2.2.2 states:

S5.2.2.2 Buses with GVWR of more than 10,000 pounds. Buses with a GVWR of more than 10,000 pounds shall meet the unobstructed openings requirements in S5.2.2.1 by providing side exits and at least one rear exit that conforms to S5.3 through S5.5. The rear exit shall meet the requirements of S5.3 through S5.5 when the bus is upright and when the bus is overturned on either side, with the occupant standing facing the exit. When the bus configuration precludes installation of an accessible rear exit, a roof exit that meets the requirements of S5.3 through S5.5 when the bus is overturned on either side, with the occupant standing facing the exit, shall be provided in the rear half of the bus.

You state that the lower deck has two emergency exit windows on the left side, two emergency exits on the right side, and two emergency doors on the right side. On the upper deck, there are four emergency exit windows on the left side, four emergency exit windows on the right side, and two roof emergency exits.

Judging from photographs of the rear of the TD925 and the schematic, there is no rear exit (door or window) on the bus. Accordingly, a roof exit must be provided. The question is whether two exits in the roof satisfy that requirement, given that access to the upper deck is provided by two stairways on the right side of the bus. We note that these staircases might be difficult for lower deck occupants to use in order to reach the roof exits if the bus overturned on its left side.

After careful consideration of the standard and its history, our conclusion is that S5.2.2.2 does not contemplate this particular kind of bus (a double decker bus whose upper deck is enclosed) and, therefore, does not presently specify any requirements concerning a means by which lower deck occupants can gain access to the roof exit of such a bus if it falls on either side.  However, we note that the overall purpose of FMVSS 217 is to provide a means of readily accessible emergency egress. To the extent that manufacturers design their buses to ensure that lower deck occupants have adequate access in all situations, there is no need for changed regulatory language to implement the expressed purpose of the standard.

I hope this information is helpful. If you have any further questions, please contact Dorothy Nakama of my staff at (202) 366-2992.

Sincerely yours,

Anthony M. Cooke

Chief Counsel

ref:217

d.9/18/08

Mr. Darby Crow

CEO

Crow Cycle Co.

863 Opal Street

San Diego, CA 92109

Dear Mr. Crow:

This responds to your letter concerning whether the Crow Cycle Companys motorized bicycle design (the Crow beach cruiser) is considered a motorcycle, subject to the jurisdiction of the National Highway Traffic Safety Administration (NHTSA). As discussed below, it is our opinion that the Crow beach cruiser is a motor vehicle. Moreover, based on the specifications of the vehicle that you provided, it is our opinion that the Crow beach cruiser should be considered a motorcycle, or more specifically a motor-driven cycle, and therefore is subject to Federal laws governing those vehicles.

By way of background, NHTSA regulates the manufacture, importation, and sale of motor vehicles and motor vehicle equipment. The definition of motor vehicle is given is 49 USC 30102, and reads:

[M]otor vehicle means a vehicle driven or drawn by mechanical power and manufactured primarily for use on public streets, roads, and highways, but does not include a vehicle operated only on a rail line.

Furthermore, the NHTSA has included definitions of various vehicle types in its regulations. In 49 CFR 571.3, we defined a motorcycle as a motor vehicle with motive power having a seat or saddle for the use of the rider and designed to travel on not more than three wheels in contact with the ground. A motor-driven cycle is defined as a motorcycle with a motor that produces 5-brake horsepower or less.

You have provided detailed specifications regarding the Crow beach cruiser. Most relevantly, you stated that it comes equipped with a 36cc, 1.6 HP engine. The Crow beach cruiser has a bicycle frame, seat, transmission, and mountain bike wheels. The speed control is a twist throttle, similar to motorcycle designs, and most other components are standard bicycle components.

Furthermore, you stated that the Crow beach cruiser can be operated in three different modes. The first is Human Power, in which the vehicle is operated like a non-powered bicycle. The second is Human Power plus gasoline engine, in which the vehicle operates like a power-assisted bicycle. The third is Gasoline engine only, in which the engine provides the sole power for the vehicle. In this mode, the vehicle has a top speed of 28 mph when placed in the smallest gear. Additionally, we note that the beach cruiser style of bicycles, whether motorized or not, are marketed in part for and commonly used on public roads.

You provided several arguments as to why you believe NHTSA should not consider your product a motor vehicle. You state that the engine output and top speed of the vehicle, 1.6 HP and 28 mph, respectively, are similar to what a world-class cyclist can sustain through human power alone, and what an average cyclist can produce in brief bursts. Therefore, you state, the performance of the vehicle is similar to that of an ordinary bicycle powered by a cyclist. You also state that the Crow beach cruiser cannot keep up with normal road traffic, is not capable of quick acceleration, and cannot climb hills at a speed comparable to a motorized vehicle.

You made several additional arguments. First, you argued that the Crow beach cruiser is very similar to a mountain or road bicycle. You state that the controls are similar and the components are largely bicycle components. Furthermore, you presented information on various State laws regarding the classification of motorized bicycles and motorcycles. You stated that a majority of States classify a vehicle a top speed of 30 mph or less and an engine capable of producing 2 HP or less as a motorized bicycle.

Based on the description of the vehicle you provided, we believe that the Crow vehicle is a motor vehicle, subject to the Federal Motor Vehicle Safety Standards (FMVSSs). We believe that it should be classified as a motor-driven cycle. Below, we will state our rationale, as well as address the arguments you put forth in your letter.

NHTSAs position on whether motorized bicycles should be classified as motor vehicles under the definition in 49 U.S.C. 30102 has been discussed in several previous interpretations. In a 1999 interpretation, we stated that attaching a motor to a bicycle rendered the bicycle a motor vehicle, because the motor was capable of propelling the vehicle on its own.[1] Similarly, a 1997 interpretation to an electric bicycle manufacturer stated that NHTSA considered self-propelled bicycles to be motor vehicles, subject to the Federal requirements.[2] We are enclosing copies of both previous interpretations. Because the Crow beach cycle is capable of operating solely under mechanized power, we would consider it to be a motor vehicle, and thus subject to Federal requirements.

We note that we do not consider power-assisted bicycles to be motor vehicles. In a recent letter of interpretation, we stated that a bicycle with an engine that was not powerful enough to power the bicycle alone would not be considered a motor vehicle.[3] The Crow beach cruiser, on the other hand, is capable of performing purely on engine power.

You argued that the Crow beach cruiser is no more capable of keeping up with traffic than human-powered cyclists, and therefore should not be considered a motor vehicle. We disagree with this argument. The Crow beach cruiser, using only the motor, is capable of sustained speeds of up to 28 mph. We believe that vehicles with speeds of over 20 mph are capable of on-road operation. We note that one class of four-wheeled motor vehicles, low speed vehicles (LSVs), have a top speed of more than 20 mph but not more than 25 mph.

You also argued that because the Crow beach cruiser uses similar controls to a road or mountain bicycle, it should be considered a motorized bicycle, and that many States do not consider low-powered motorized bicycles to be motorcycles. While we are not familiar with the various State laws you mentioned, we note that Congress has enacted laws regarding motorized bicycles. Specifically, in the Consumer Product Safety Act, Congress distinguished certain types of motorized bicycles, namely, low-speed electric bicycles, which have a top speed of less than 20 mph. In that Act, Congress stated that because low-speed electric bicycles are designed not to exceed the maximum speed of a human-powered bicycle, and they are typically used in the same manner as human-powered bicycles, electric bicycles should be regulated in the same manner and under the same agency (the [Consumer Product Safety Commission] CPSC) as human-powered bicycles. While we note that this law applies only to electric bicycles, and not gasoline-powered bicycles like the Crow beach cruiser, we take note that Congress used a cutoff speed of 20 mph. We also note that the 20 mph cutoff point was the speed that NHTSA used to determine the minimum top speed for LSVs. Therefore, we are not persuaded by your argument that the speed and design of the Crow beach cruiser should cause NHTSA to not consider it a motor vehicle.

Based on the above analysis, we have concluded that the Crow beach cruiser is a motorcycle, or more specifically, a motor-driven cycle. As such, it is subject to the FMVSSs applicable to motorcycles.

If you have any further questions relating to NHTSA, please contact Ari Scott of my staff at (202) 366-2992.

Sincerely yours,

Anthony M. Cooke

Chief Counsel

Enclosures

ref:108

d.4/17/08

Dr. Klaus Bs

Lear Corporation

Technology Center Allershausen

Am Ziegelwerk 1

D-85391 Allershausen-Leonhardsbuch

Germany

Dear Dr. Bs:

This is in response to your December 12, 2007 facsimile, in which you asked about the head restraint position specification for the dynamic compliance option in Federal Motor Vehicle Safety Standard (FMVSS) No. 202a, Head Restraints. Specifically, you refer to a 2007 final rules elimination of the backset adjustment specification (while maintaining the up/down adjustment specification) in the dynamic compliance option for head restraints (72 FR 25484, May 4, 2007). You ask for clarification of how head restraints with adjustable backsets should be positioned for the dynamic compliance tests. As discussed below, the omission in the regulatory text of the language you referenced was an inadvertent error, and we plan to correct this error as a technical correction. This correction will clarify that head restraints with adjustable backsets can be tested in any position of adjustment during compliance tests for the dynamic option, i.e., the vehicle must comply in all such positions of adjustment.

FMVSS No. 202a seeks to reduce whiplash injuries in rear collisions, and in 2004 the National Highway Traffic Safety Administration (NHTSA) upgraded this standard to provide better whiplash protection for a wider range of occupants (2004 Final Rule). On May 4, 2007, NHTSA published a new final rule (2007 Final Rule) amending FMVSS No. 202a, which responded to petitions for reconsideration of the 2004 Final Rule (69 FR 74848, Dec. 14, 2004).

In your letter, you refer to the 2007 Final Rules elimination of the specification of backset adjustment in the dynamic compliance option for head restraints. Your letter asks for clarification of your assumption that the absence of specific instructions for backset adjustment must mean that head restraints with adjustable backsets should be adjusted midway between the most forward and rearward position of adjustment, analogous to the condition specified for the up/down adjustment of the head restraint (midway between the lowest and the highest position of adjustment). As explained below, your assumption is incorrect.

The 2004 Final Rule altered the head restraint position specification for the dynamic compliance option from any position of adjustment to a mid-height position and any position of backset adjustment. This was indicated in both S4.3 and S5.3:

S4.3 Dynamic performance and width. At each forward-facing outboard designated seating position equipped with a head restraint, the head restraint adjusted midway between the lowest and the highest position of adjustment, and at any position of backset adjustment, must conform to the following:

* * * * *

S5.3 Procedures for dynamic performance. Demonstrate compliance with S4.3 of this section in accordance with S5.3.1 through S5.3.9 of this section with a 50th percentile male Hybrid III test dummy specified in 49 CFR part 572 subpart E, with the head restraint midway between the lowest and the highest position of adjustment, and at any position of backset adjustment.

The 2007 Final Rule preamble did not discuss, and we did not intend to make any changes to the provisions of head restraint adjustment for this test. The omission of this test condition was an inadvertent error, and the agency plans on correcting this mistake in a forthcoming technical correction to the 2007 Final Rule. This will clarify that head restraints with adjustable backset can be tested in any position of adjustment during the dynamic compliance option.

If you have any further questions, please do not hesitate to contact Sarah Alves of my staff at (202) 366-2992.

Sincerely yours,

Anthony M. Cooke

Chief Counsel

ref:202

d.4/29/08