ID: 86-2.14

TYPE: INTERPRETATION-NHTSA

DATE: 04/08/86

FROM: AUTHOR UNAVAILABLE; Erika Z. Jones; NHTSA

TO: Geral L. Cox

TITLE: FMVSS INTERPRETATION

TEXT:

Mr. Geral L. Cox FLIRRZ 8931 Upper DeArmoun Road Anchorage, Alaska 9951

Dear Mr. Cox:

This responds to your letter seeking this agency's opinion of a reflective device you plan to sell to be installed on semitrailers and other motor vehicles. As explained in your letter, these reflective devices would be installed on the center plug hub of wheels on semitrailers and trailers. You asked me to send you a letter stating either that your devices comply with applicable Federal standards or that you don't need DOT approval to sell these devices. You are correct that you do not need approval from this agency to market your product. I am pleased to have this opportunity to explain our statute and regulations.

The National Traffic and Motor Vehicle Safety Act (15 U.S.C. 1391 et seq., hereinafter "the Act") does not permit this agency to assure a manufacturer that its products comply with all applicable requirements or to "approve" a manufacturer's products. Instead, section 114 of the Act (copy enclosed) requires the manufacturer itself to certify that each of its products complies with all applicable safety standards. Because of this statutory requirement, the National highway Traffic Safety Administration (NHTSA) cannot "approve" products or offer assurances of compliance by the product.

With respect to your reflective devices, there is no provision in our standards expressly prohibiting such reflectors. The installation of those reflectors would be subject only to the requirement set forth in section S4.1.3 of Standard No. 108, Lamps Reflective Devices, and Associated Equipment (49 CFR 2571.108). That section provides that no additional reflectors that impair the effectiveness of lighting equipment required by Standard No. 108 shall be installed on motor vehicles. This prohibition applies to parties installing your product on vehicles, and not to you as the manufacturer of the product. This is because the installer is the only party that can ensure that the reflectors are installed so that they do not impair the effectiveness of required lighting equipment. Generally speaking, this requirement of Standard No. 108 applies only to motor vehicles prior to their first purchase in good faith for purposes other than resale, and not to aftermarket accessories added to a vehicle after that purchase. The general rule is that aftermarket accessories may be added to vehicles.

This general rule is, however, limited by the application of the provisions of section 108(a)(2)(A) of the Act. That section specifies: "No manufacturer, distributor, dealer, or motor vehicle repair business shall knowingly render inoperative...any device or element of design installed on or in a motor vehicle or item of motor vehicle equipment in compliance with an applicable Federal motor vehicle safety standard..." NHTSA considers it an element of design on vehicles that they have lighting and other equipment that are required by Standard No. 108 and whose effectiveness is not impaired by additional lights or reflectors. If the installation of your reflectors would impair that effectiveness, a manufacturer, distributor, dealer, or motor vehicle repair business installing such reflectors would be rendering inoperative that design element of the vehicle, and thereby violating section 108(a)(2)(A) of the Act. Section 109 of the Act (15 U.S.C. 1398) specifies a civil penalty of up to $1,000 for each violation of section 108, and each vehicle on which this element of design was rendered inoperative would be considered a separate violation. You should note that the prohibitions of section 108(a)(2)(A) do not apply to a vehicle owner rendering inoperative some element of design on his or her vehicle. Hence, if your aftermarket reflectors are sold to and installed by vehicle owners, those persons would not be subject to the prohibition of section 108 referenced above.

It appears from the materials enclosed with your letter that these reflectors would be installed so that they project outwards several inches beyond the wheel of the vehicles on which they are installed. have enclosed a copy of standard No. 211, Wheel Nuts, Wheel Discs, and Hub Caps, for your information. This standard does not apply to trucks, trailers, or large buses, which are the vehicle types on which you indicated your reflectors would be installed. However, Standard No. 211 prohibits passenger cars and multipurpose passenger vehicles from incorporating winged projections on their wheel nuts, wheel discs, and hub caps. This prohibition is intended to prevent the potential hazard to pedestrians and cyclists from projections extending beyond the wheel of these vehicles. I hope that this potential hazard will not be present on vehicles on which your reflectors are installed.

You should also be aware of the responsibilities imposed by the Act on manufacturers of motor vehicle equipment, such as your reflectors. If either you, as a manufacturer, or this agency determines that your product does not comply with an applicable safety standard or that the products contain a defect related to motor vehicle safety, you as the manufacturer would be required to remedy that noncompliance or defect. Section 154(a)(2)(B) of the Act (15 U.S.C. 1414(a)(2)(B)) specifies that, if an item of motor vehicle equipment fails to comply with an applicable standard or contains a safety-related defect, the manufacturer must notify purchasers of the noncompliance or defect and must either:

1. repair the product so that the noncompliance or defect is removed: or

2. replace the product with an identical or reasonably equivalent product that does not have the noncompliance or defect.

Whichever of these options is chosen, you as the manufacturer must bear the full expense of the remedy and cannot charge the product owner for the remedy if the product was first purchased less than 8 years before the notification campaign.

Sincerely,

Original Signed By

Erika Z. Jones Chief Counsel

Enclosures

Jan. 30, 1986

To the Chief Counsel

Mr. Kennerly Digges National Highway Traffic Safety Administration Washington,D.C.

Mr. Diggs,

Back in December we had a phone conversation about D.O.T. approval on new safety devices to be introduced to the trucking industry. It is my understanding that I don't need to have any D.O.T. approval as long as I fall within all of the guidelines listed in the Federal Motor Carriers Safety Regulations handbook.

I have enclosed a few sketches and a brief explanation as to what my invention and safety device are designed to do. According to my understanding of the rule book, I feel that I fall well within the Federal guidelines. I have read section #393.26(e) lines 1-5 concerning non-required reflectors, which is the only section I could find that would relate to my device, I feel that I fall well within these guidelines.

What I would like to have from the NHTSA is a documented letter stating that they feel that I fall well within the Federal guidelines and/or that I don't need any D.O.T. approval to go ahead on manufacturing and sales of my device. We hope to hear from you soon as we hope to start manufacturing these devices as soon as the first week of March, our future is riding on a letter from you and the Federal Motor Carriers Safety Division, we hope to get a letter from them in the very near future.

I want to thank you for your co-operation and any and all that you could do to help us on to what we hope to be a very prosperous future.

Again thank you,

Sincerely

Geral L. Cox

"FLIKRZ"

A TRUCK/TRAILER WHEEL MOVEMENT INDICATOR

"FLIKRZ" are a safety device for all Semi-Trucks that operate this nations highways. "FLIKRZ" are the idea, design and invention of Gerry Cox, a long time professional Truck-driver in Alaska.

After many years of hands-on operation and observation of heavy-duty Semi-Trucks in Alaska's harsh environment, Gerry noticed a very hazardous, expensive and to common occurrence, locking, skidding trailer tires.

The most common cause of unnoticed wheel skids occurs during the winter months when a trailer is parked after normal, trouble free operation and ice forms between the brake shoe and brake drum setting the brakes in the lock position. A driver will release his brake switch and drive away with what he believes to be free wheeling trailer, when in reality he may be skidding one or more of the trailer wheels behind him without realizing he is in the process of destroying hundreds of dollars worth of tires.

Another common cause of unnoticed tire skidding occurs with over application of the trailer brakes on slippery downhill grades. During slippery conditions, one or more wheels can lock-up without indication causing unnecessary tire wear or even throw the trailer dangerously out of control.

"FLIKRZ" are a simple, install in seconds wheel reflector that allows a driver at all times, at any speed, day or night to know exactly if and when his trailer wheels are moving or not.

"FLIKRZ" are made to fit most 15-24 inch trailer wheel assemblies equipped with the common 1-1/8 inch removable center plug hub. They install in seconds and come in a variety of colors (RED, WHITE, BLUE, ORANGE, YELLOW AND GREEN) FOR EASY IDENTIFICATION OF EACH AXLE ASSEMBLY.

"FLIKRZ" are not only an effective, maintenance reducing device, they are also a public safety aid. If and when a Truck loses all tail and marker lights to the trailer, traffic approaching from the front, rear or sides will see the "FLIKRZ" in motion and be aware of a moving Semi-Truck or one that may be parked on the side of the road for that matter. During the winter months, snow blowing up and covering the tail-lights is a far to common and dangerous problem. If by chance a Semi-Truck and trailer are parked on the edge of the road with no lights and safety flares or safety markers aren't available for the moment, then "FLIKRZ" will allow a driver the time he needs to place the necessary safety devices for warning on coming traffic.

In addition to being a wheel movement indicator, public safety aid or skid detector, "FLIKRZ" also aid a driver in backing his trailer into dark places during night time operations. With the aid of back-up light, the reflector will let him know exactly where his trailer tires are at all time.

I feel so strongly about the safety, maintenance reduction and striking appearance that this simple, inexpensive device has to offer to any independent trucker or an entire fleet for that matter, that I forsee the day that near all Semi-Trailers on this nation's highway will be willingly and satisfactorily equipped with FLIKRZ"....

NOTE

DRIVE WHEEL ADAPTERS AVAILABLE FOR SEMI-TRACTORS, DELIVERY TRUCKS, SCHOOL, MUNICIPAL AND PUBLIC BUS LINES, ETC....

ID: sponorship_rbm

Erika Z. Jones, Esq.
Mayer, Brown, Rowe & Maw
1909 K Street, N.W.
Washington, DC 20006-1101

Dear Ms. Jones:

This letter responds to a recent request you made regarding the National Highway Traffic Safety Administration's (NHTSA) interpretation of the term "motor vehicle manufacturer" as it relates to compliance with the phase-in requirements of various Federal motor vehicle safety standards (FMVSS). Your immediate concern is whether a vehicle may be deemed to be manufactured by more than one manufacturer if there is an agreement between two separate companies under which both companies provide financial and engineering resources for the development of a vehicle model that will be assembled by one company for the exclusive marketing by the other. If the answer to that question is yes, you ask whether either company could take credit for those vehicles for the purpose of complying with the phase-in requirements of a safety standard, as long as they filed a contract with NHTSA specifying who was taking such credit. I am pleased to provide an explanation of NHTSA's position on these issues, which we refer to as "sponsorship."

NHTSA first articulated its position on sponsorship in 1985 when it proposed to phase-in the new passive restraint requirements of FMVSS No. 208, Occupant crash protection. See 50 Fed. Reg. 14589, 14596 (April 12, 1985). In that rulemaking, NHTSA allowed consensual attribution of a vehicle when there was more than one manufacturer of the vehicle. Specifically, NHTSA developed a regimen under which a passenger car produced by more than one manufacturer would be attributed for phase-in purposes to a single manufacturer, as specified by an express written contract provided to NHTSA. In the absence of a written contract, the attribution would go to the importer, in the case of an imported vehicle, or to the manufacturer that marketed the vehicle, in the case of a vehicle manufactured in the United States. See 49 CFR 571.208, S4.1.3.5. The same regimen has been adopted for subsequent phase-ins of other requirements of FMVSS No. 208 (S4.1.5.2, S4.2.5.6, S4.2.6.1.2, S14.3.1, and S14.3.3.1), as well as those of other safety standards (FMVSS No. 201, Occupant protection in interior impact, at S6.1.6; FMVSS No. 214, Side impact protection, at S8.4; and FMVSS No. 225, Child restraint anchorage systems, at S14.2).

The term "manufacturer" is defined by statute as "a person manufacturing or assembling motor vehicles or motor vehicle equipment; or importing motor vehicles or motor vehicle equipment for resale." 49 U.S.C. 30102. The NHTSA regulations governing vehicle certification of a completed vehicle require the assembler of the vehicle to certify the vehicle as the manufacturer. Three exceptions apply to the general requirement: first, a non-assembling manufacturer may certify compliance when it controls the corporation assembling the vehicle and agrees to assume all legal responsibilities associated with certification; second, a manufacturer that fabricates and sends a vehicle in an unassembled form such that it can be assembled without any special machinery or tools may name itself as the vehicle manufacturer; and third, a trailer manufacturer may certify compliance for a trailer that it did not manufacture, but for which it accepts legal responsibility associated with certification. See 49 CFR 567.4(g). The manufacturer identified on the certification label generally bears full legal responsibility for any notifications and remedies resulting from a determination of a noncompliance with a FMVSS or a safety-related defect. See 49 CFR 573.3.

In the 1985 FMVSS No. 208 NPRM, the agency acknowledged that there were instances in which a vehicle could arguably have more than one manufacturer. One example of this situation could be when there was an existing parent/subsidiary relationship. However, there could also be instances where the relationship between the two possible manufacturers was not based on control of the company, but rather on control of the production of a specific vehicle model. We determined that, under certain circumstances, the definition of manufacturer in 49 U.S.C. 30102 was sufficiently broad to include this scenario. The example we gave in explaining our position was a company, which we refer to as a "sponsor," that contracts with another manufacturer to produce a design exclusively for the sponsor. However, the agency went on to state, "the mere purchase of vehicles for resale by a company which is also a manufacturer of motor vehicles does not make the purchaser the manufacturer of those vehicles." See 50 Fed. Reg. 14589, 14596.

To date, NHTSA has examined the sponsorship question, based on particular sets of circumstances, only four times. In the first instance, the agency evaluated the relationship between General Motors and Lotus Cars Ltd. See August 15, 1987, letter from NHTSA to General Motors. We determined that since GM sponsored the importation, distribution, and marketing of the Lotus vehicles in the United States, it could be considered the manufacturer of the vehicles for the FMVSS No. 208 phase-in requirements. In making its decision, NHTSA noted that Lotus was a wholly-owned subsidiary of GM and the vehicles were marketed in the United States by another wholly-owned subsidiary of GM, providing sufficient indicia of GM's active role in bringing the vehicles to market.

Two years later, NHTSA concluded that a contractual relationship whereby one manufacturer contracts with another to assemble vehicles, without more, was insufficient to establish a sponsorship relationship. The agency noted that a contract to assemble may be nothing more than the purchase of vehicles for resale. Without more information as to the details of the contract, NHTSA was unable to determine whether the non-assembly manufacturer exercised sufficient control over the production of the vehicle to be considered a sponsor for phase-in purposes. See September 7, 1989, letter from NHTSA to LAFORZA Automobiles, Inc.

In 1991, NHTSA determined that a joint venture agreement, under which one party provides design and development support, as well as major components, and the other party assembles the vehicle, was sufficient to allow the non-assembler to be considered as the manufacturer of the vehicle and to attribute the vehicle to its fleet for phase-in purposes. See October 28, 1991, letter from NHTSA to Nissan Research & Development, Inc.

Finally, we recently clarified our position that vehicles of related manufacturers may be grouped together for the purposes of meeting safety standard phase-in requirements, and expanded it beyond the findings of control described in the GM/Lotus letter. In a letter to the Alliance of Automobile Manufacturers, we noted that the manufacturer attribution provisions needed to be clear and easily applied. We stated that we believed there was sufficient interaction among related manufacturers, and direct involvement by parent corporations in the actions of their subsidiaries, that their fleets could be grouped together or treated as the vehicles of separate manufacturers, at the manufacturers' option. We also stated that if the fleets of motor vehicle manufacturers are considered to be within the same "control" relationship for the purposes of the Corporate Average Fuel Economy (CAFE) statute, 49 U.S.C. Chapter 329, their vehicles could be grouped together or treated as the vehicles of separate manufacturers for phase-in purposes, again at the manufacturers' option. See October 24, 2002, letter from NHTSA to the Alliance of Automobile Manufacturers.

Thus, under existing interpretations, sponsorship could be found with respect to a vehicle model in three instances: first, if the vehicle were designed from the beginning exclusively for another manufacturer; second, if the fleets of the two companies are combined under the CAFE statute during the model year at issue; and third, if the vehicle were designed and produced pursuant to a joint venture agreement that reflected joint participation. Sponsorship would not be found, however, if a contract merely directed one company to assemble an existing model for another manufacturer without other evidence of the non-assembling company's control over the design and production process.

I now turn to the fact scenario presently before the agency. In your letter, you state that Company A has agreed to supply Company B with a vehicle model developed, in part, pursuant to an engineering agreement between the two companies. The new model is based in large part on an existing model that was designed and engineered by Company A. Company A has also marketed the existing model in the United States. However, a subsidiary or affiliate of Company B will have sole distribution and marketing rights for the new model.

Under the engineering agreement, Company B has provided exterior and interior specifications and requirements, prepared and provided detailed designs of modified interior and exterior parts, and assigned employees to participate actively in the design and development process. Additionally, Company B has committed to pay Company A a net total of $30 million to cover engineering and tooling costs for the vehicle.

I have determined that this arrangement is sufficient to establish a sponsorship relationship between Company A and Company B with respect to the vehicle, regardless of whether such a relationship could be found generally, as was the case with GM and Lotus or with fleets of vehicles that are grouped together under the CAFE statute. I have also determined that it is not necessary for Company B to have been actively involved in the initial development of the vehicle, as was the case in the Nissan joint venture. Rather, my decision is based on the presence of three separate factors: the would-be sponsor's commitment of substantial design and engineering resources, the significant financial contribution by Company B to the development of the vehicle, and Company B's exclusive marketing rights to the vehicle. I note that the absence of any one of these factors, particularly the commitment of design and engineering resources, could create a situation more akin to the situation with LAFORZA, where NHTSA expressed concern that the contractual relationship may not have amounted to more than a mere purchase for resale.

Please note that in order for Company B to take credit for the vehicles in question during the phase-in, the companies must submit a written contract to that effect with NHTSA. Moreover, we note that the entire production for a given production year (i.e., from September 1 of one year through August 31 of the next year) must be attributed to one manufacturer. We would not allow a company to "sponsor" only a portion of a given year's production.

This approach to sponsorship for phase-in purposes is somewhat different from NHTSA's recently articulated position on the respective responsibilities of manufacturers under the early warning reporting rule. 67 Fed. Reg. 45833 (July 10, 2002). In that rule, we specifically addressed the obligations placed on manufacturers involved in joint ventures and production agreements. We noted that all manufacturers that are party to such ventures or agreements could assume responsibility for reporting consumer complaint and other relevant information to NHTSA. Under the early warning reporting rule, we described a production agreement as one in which one manufacturer agrees to produce vehicles for another under the second manufacturer's brand name. We did not premise our statement about the assumption of responsibility on whether the owner of the vehicle brand name had any control over the design or production of the vehicle, or whether the vehicle was designed exclusively for marketing by the brand name owner. We took this approach in the early warning reporting context because we believe the critical element is which company a consumer is more likely to notify in the event of a complaint or problem. We believe consumers would be most likely to notify the manufacturer whose name appears on the vehicle rather than the manufacturer whose name appears on the certification label. To that end, we also added a definition of "brand name owner" to mean "a person that markets a motor vehicle or motor vehicle equipment under its own trade name whether or not it is the fabricator or importer of the vehicle." This definition alone would be insufficient to establish sponsorship under the phase-in requirements of the various safety standards, because the mere branding of a vehicle does not demonstrate sufficient control or investment in the design and production of the vehicle.

I hope that this information is helpful. Should you have any further questions on this matter, please feel free to contact me or Rebecca MacPherson of my staff at the address given above or at (202) 366-2992.

Sincerely,

Jacqueline Glassman
Chief Counsel

ref:VSA
d.12/10/02

ID: 12548a.mls

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

Dear Mr. Shapiro:

This responds to your letter asking whether "belt positioning seats" as defined in Standard No. 213, Child Restraint Systems may be either the booster seat cushion (base) by itself or the base with a fixed or removable back. After asking a number of questions about belt positioning seats, you ask what requirements would be applicable to a removable slip cover for a belt positioning seat. The responses set forth below are based on our understanding of the facts set forth in your letter and related attachments.

You state that Volvo currently markets a two piece, cushion (base) and backrest belt positioning booster seat for children over 50 pounds. You further state that this restraint positions a child on a vehicle seat to improve the fit of the vehicle's Type 2 belt system. The restraint lacks any component, such as a belt system or a structural element, to restrain the forward movement of the child's torso in a forward impact. According to your letter, Volvo is contemplating marketing this device in the United States as a belt positioning booster for children 33 pounds and higher. You further state that Volvo markets a backrest which, without tools, may be easily attached and removed from the booster cushion. You state that as a child grows, first the backrest and then the base will no longer be needed.

You ask nine questions about Standard No. 213. You also request that we confirm what you refer to as three "interpretations" of the Standard. Your questions and "interpretations" are restated below, followed by our answers.

QUESTIONS RELATED TO BELT POSITIONING SEATS

You initially ask whether your device meets the definition of a belt positioning booster seat, if it is sold for use by children 33 pounds and higher.

Yes. "Belt positioning seat" is defined in a July 21, 1994 final rule as

A child restraint system that positions a child on a vehicle seat to improve the fit of a vehicle Type II belt system on the child and that lacks any component, such as a belt system or a structural element, designed to restrain forward movement of the child's torso in a forward impact. (59 FR 37167)

The system you describe is consistent with the definition of "belt positioning seat." Moreover, the agency adopted labeling requirements that state that "booster seats shall not be recommended for children of masses of less than 13.6 kg" (30 pounds). Accordingly, it would be permissible for you to market your belt positioning booster seat for use by children weighing 33 pounds or more.

Question 1. Must a belt positioning booster seat that lacks any component to restrain forward movement have a backrest?

No. A belt positioning seat may be either the base by itself or the base with a backrest. In either case, the belt positioning seat must comply with all the performance requirements when tested.

Question 2. If a belt positioning booster must have a backrest may the back be detachable from the base cushion?

As stated in our answer to question 1, a belt positioning booster seat is not required to have a backrest.

Question 3. If the belt positioning booster has a detachable backrest, can it be sold separately from the base cushion?

Nothing in NHTSA's regulations would prohibit a manufacturer from selling a detachable backrest separately from the base cushion.

Question 4. If the belt positioning booster has a fixed or detachable backrest, does it need to meet any requirements such as surface area or side support?

Yes. A belt positioning booster seat with a fixed or detachable backrest is required to meet all requirements that would be applicable to a belt positioning seat with a back, including the surface area and side support requirements set forth in S5.2.2.

Question 5. Is the backrest considered a child restraint under the definition in this regulation?

A detachable backrest, by itself, would not be considered a child restraint under the definitions in Standard No. 213. Nevertheless, a detachable backrest used in combination with a base cushion would be a child restraint system. A "child restraint system" is defined as "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 50 pounds or less." As stated above, a "belt-positioning seat" is defined as "a child restraint system that positions a child on a vehicle seat..."

Question 6: Must the detachable backrest be labeled in the same way as the cushion base?

No. A detachable backrest would not be required to be labeled in the same way as the cushion base, provided that the cushion base is labeled with all the information required by Standard No. 213.

Question 7: If a belt positioning booster seat with a detachable backrest is tested by NHTSA for compliance to FMVSS 213, will NHTSA test with or without the backrest attached?

If the seat is recommended for use both with and without the backrest, then NHTSA would test the belt positioning seat in both use modes: as a cushion alone and with the backrest attached. The agency believes that it is necessary to test the seat both ways in order to replicate fully the actual anticipated use of the child restraint system.

You conclude this section by stating that:

It is our interpretation that the booster seat cushion (base), by itself, constitutes a belt positioning booster seat that may be labeled as being suitable for children weighing not less than 30 pounds. Further, we believe that a belt positioning booster seat that lacks any component, such as a belt or a structural element like a shield, may have a back that is either fixed or removable.

We agree with both of your statements: A seat cushion (base) by itself may be a belt positioning booster seat, and a belt positioning booster seat may have a back that is either fixed or removable.

QUESTIONS RELATED TO SLIP COVERS

You state that Volvo is considering marketing a removable slip cover for the belt positioning booster seat that would either be one piece that covers both the base and the attached back or two pieces that would separately cover each piece. You anticipate selling the slip cover either with the booster seat or as an accessory separately. You state that the slip cover may cover labels on the booster seat required by Standard No. 213.

8. Volvo would like to know if a slip cover as described above would be permitted to be sold with the booster or separately as an accessory?

A slip cover would be permitted to be sold either with the booster or separately as an accessory.

The applicable requirements differ depending on whether a slip cover is sold with the booster seat or as an accessory. A slip cover sold with the booster seat would be considered part of the child restraint system, and therefore would be subject to all applicable requirements in FMVSS No. 213, including the labeling requirements in S5.5 and the flammability resistance requirements in S5.7. A slip cover sold separately as an accessory would not be subject to these requirements. While it is unlikely that the slip cover 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. No commercial business listed in 30122 can install a slip cover if the product undermines the vehicle's compliance with a safety standard, including FMVSS 213's labeling requirements.

The prohibition of 30122 does not apply to individual owners who install equipment on their own child restraint systems. 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 owners not to degrade the safety of their child restraint systems.

In addition, as a manufacturer of motor vehicle equipment, you are subject to the requirements of 49 United States Code 30118-30121 concerning the recall and remedy of products with safety related defects. In the event that 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.

9. Must the required warning labels or other information, such as the date and location of manufacture on the booster seat, be visible with the slip cover installed?

Under S5.5.3, information specified in S5.5.2(g) through (k) must be visible with the slip cover installed. The agency notes that it is important for this information to remain visible, given that child restraint systems may be used by people other than the initial purchaser such as grandparents and child care providers who would not know about a warning label that was covered by a slip cover. Nevertheless, information specified in S5.5.2(a) through (f) (such as the date and location of manufacture) need not be visible when a system is installed, and thus may be obscured by a slip cover.

With respect to a slip cover sold as an accessory, the agency cannot require labeling information to be visible when the slip cover is installed. Nevertheless, NHTSA strongly urges you to either label the slip cover with this important safety information or not obstruct this information already labeled on the child restraint system.

You conclude your letter by asking us to confirm the following statement:

It is our interpretation that FMVSS 213 does not apply to either the backrest or the slip cover. As we understand, the standard applies to new child restraint systems that are designed to restrain, seat or position children. Both the backrest and the slip cover, by themselves, were not designed to restrain, seat, or position the child and thus would not be subject to the standard. Since the backrest would not be considered a child restraint system, it would not have to be labeled nor would it have to meet the surface area or side support requirements of the standard. Also, since the slip cover is installed over the child restraint by the consumer after the initial sale we believe that labeling the child restraint appropriately is sufficient to meet the requirements of the standard and that it is not required to label the slip cover in any way.

As explained above, we cannot fully agree with your interpretation. If it is sold with a child restraint system, a slip cover would have to comply with the flammability resistance requirements. In addition, the slip cover must either be labeled or not obstruct the safety information on the child restraint system.

While a backrest sold alone would not be a child restraint system, a backrest in connection with a bottom cushion would be a child restraint system and therefore would be subject to all applicable requirements in Standard No. 213.

If you have any further questions, please do not hesitate to contact Mr. Marvin Shaw at (202) 366-2992.

Sincerely,

John Womack

Acting Chief Counsel

ref:213

d.12/5/96

ID: aiam0003

"Dear Mr. Selander: This responds to your February 17, 1992 request fo interpretations of Federal Motor Vehicle Safety Standards No. 101, Controls and Displays and No. 105, Hydraulic Brake Systems, as those standards would apply to an electric vehicle (GMEV) that General Motors (GM) is preparing to sell in the future. You requested the agency's concurrence with, or guidance regarding, nine proposed interpretations. Your questions are addressed below. Before discussing the substantive issues that you raised, I note that you requested confidential treatment for portions of certain materials that you provided relating to the brake system planned for the electric vehicle. These materials were previously submitted to NHTSA, and the agency granted confidentiality for portions of the materials in letters dated July 18, 1991 and August 12, 1991. In a letter accompanying your request for interpretation, GM released from its request for confidential treatment portions of the materials for which confidentiality had previously been granted. NHTSA's earlier grants of confidentiality remain in effect for the remaining portions for which GM continues to seek confidential treatment. Accordingly, this letter does not cite any of the confidential information. I also note that, in one of the attachments to your letter, you suggested several amendments to Standard No. 105 that you believe would facilitate the introduction of electric vehicles. As you know, NHTSA recently issued an advance notice of proposed rulemaking (ANPRM) to solicit comments to help the agency determine what existing standards may need modification to meet the needs associated with the introduction of electric vehicles and what new standards may have to be written specifically for electric vehicles. See 56 FR 67038, December 27, 1991. We will consider your recommendations concerning Standard No. 105 as we evaluate the comments on the ANPRM. The scope of this letter is limited to addressing how the current requirements of Standards No. 101 and No. 105 would apply to your planned vehicle. By way of background information, NHTSA does not provide approvals of motor vehicles or motor vehicle equipment. Under the National Traffic and Motor Vehicle Safety Act, it is the responsibility of the manufacturer to ensure that its vehicles and equipment comply with applicable requirements. The following represents our opinion based on the facts provided in your letter. Standard No. 101, Controls and Displays GM Proposed Interpretation 1: Permit electrically powered vehicles to use symbols that are appropriate for indicating electric power reserve. You asked two questions regarding how Standard No. 101 would apply to the GM electric vehicle. The first question concerned the identification for a gauge that would monitor battery charge as a percent of full charge. This gauge would serve as the functional equivalent of a fuel gauge in traditional internal combustion engine (ICE) vehicles. You stated, however that it would be inappropriate and potentially misleading to use Standard No. 101's fuel symbol (a picture of a gasoline pump) for a gauge indicating electric power reserve. You stated that you planned to identify the gauge with the ISO battery symbol (a picture of a battery), which you indicated is substantially similar to that found in Standard No. 101 for electrical charge. You requested NHTSA's concurrence that electric vehicles are permitted to use symbols that are appropriate for identifying electric power reserve and not the Standard No. 101 fuel symbol. Standard No. 101 requires that new vehicles with any display listed in the standard must meet specified requirements for the location, identification and illumination of such display. See S5(a). Thus, the primary issue raised by your question is whether a gauge indicating electric power reserve is among the displays listed in the standard, and if so, what identification requirements apply. As you noted in your letter, one of the displays listed in Standard No. 101 is a fuel gauge. See S5.1 and Table 2. The dictionary defines 'fuel' as combustible matter used to maintain fire, as coal, wood, oil, etc. See Random House Dictionary of the English Language (unabridged edition). Electrical power provided by a battery does not come within the meaning of 'fuel.' Therefore, a gauge indicating electric power reserve for an electric vehicle is not a fuel gauge. Another display listed in Standard No. 101 is an electrical charge gauge. This term refers to gauges that indicate whether, and the extent to which, a vehicle's battery is charging. Therefore, a gauge indicating electric power reserve for an electric vehicle is not an electric charge gauge within the meaning of Standard No. 101. Since a gauge indicating electric power reserve is not otherwise covered by Standard No. 101 or any other standard, its identification is at the option of the manufacturer. GM Proposed Interpretation 2: Allow the 'Service Soon' telltale to indicate loss of powertrain oil pressure for the GMEV. Your second question concerned whether low oil pressure may be indicated by activation of a 'Service Soon' telltale instead of one identified by Standard No. 101's oil pressure symbol (a picture of an oil can) or the word 'oil.' You stated that a 'Service Soon' telltale would be more appropriate for an electric vehicle, since it (unlike ICE vehicles) can continue to be driven without oil pressure. One of the displays listed in Standard No. 101 is an oil pressure telltale. While the seriousness of low oil pressure may be different for electric vehicles than ICE vehicles, the condition for activation of an oil pressure telltale (low oil pressure) would be the same. It is our opinion that Standard No. 101's identification requirements would apply to an oil pressure telltale for an electric vehicle. If a manufacturer is concerned that the oil pressure symbol or the word 'oil' might be misleading to drivers familiar with ICE vehicles, the manufacturer is free to provide additional words or symbols for the purpose of clarity. See S5.2.3. It is not clear, however, that the telltale you plan would be considered a low oil pressure telltale within the meaning of Standard No. 101. You state that, as currently planned, the electric vehicle will be equipped with a 'Service Soon' telltale which will light in the event of a malfunction that could eventually cause damage to the vehicle powertrain, but does not require immediate attention. It thus appears that the telltale might monitor several possible vehicle conditions, one of which is low oil pressure. Standard No. 101 does not require that any of the displays listed in the standard be provided or that two or more displays, if provided, be provided separately. NHTSA has previously concluded that a multipurpose telltale which monitors two functions, oil pressure and coolant temperature, may be identified by the word 'Engine.' See December 29, 1978 letter to Ford Motor Company. The basis for this interpretation was that while Standard No. 101 specifies requirements for oil pressure and coolant temperature telltales, it does not specify any requirements for a single telltale which covers both conditions. For the same reason, if GM provided a single telltale monitoring several vehicle conditions, one of which was low oil pressure, the standard's requirements for an oil pressure telltale would not apply and the identification for that telltale would be at the discretion of the manufacturer. Standard No. 105, Hydraulic Brake Systems You asked seven questions regarding how Standard No. 105 would apply to the GM electric vehicle. You provided the following general description of the brake system planned for the vehicle: The brake system consists of front hydraulic disc (service) brakes, rear electric drum (service and parking) brakes, four-wheel ABS, and regenerative braking. Brake pedal forces and travel are comparable to conventional power assisted hydraulic brake systems, and are independent of the state-of-charge of the vehicle's battery pack. The design features a manual hydraulic 'push through' to apply the front brakes in the event of any electrical failure. Standard No. 105 applies to passenger cars and various other vehicle types with 'hydraulic service brake systems.' See S3. Since the service brakes of the GM electric vehicle would be partly hydraulic brakes and partly electric brakes, a preliminary issue is whether the standard would apply to the vehicle. As discussed below, it is our opinion that the standard would apply to the vehicle. The term 'hydraulic brake system' is defined in S4 as 'a system that uses hydraulic fluid as a medium for transmitting force from a service brake control to the service brake, and that may incorporate a brake power assist unit, or a brake power unit.' The term 'service brake' is defined at Part 571.3 as 'the primary mechanism designed to stop a motor vehicle.' The planned braking system would use hydraulic fluid as a medium for transmitting force from the service brake control to the front brake portion of the service brake. It is our interpretation that this is sufficient, under the definition of 'hydraulic brake system,' for the braking system to be considered a 'hydraulic brake system,' even though hydraulic fluid is not used for the rear brake portion of the service brake. Therefore, Standard No. 105 would apply to the vehicle. GM Proposed Interpretation 3: The GMEV parking brake is mechanically retained in accordance with the requirements of S5.2. Your first question on Standard No. 105 concerned S5.2's requirement that vehicles be manufactured 'with a parking brake system of a friction type with a solely mechanical means to retain engagement.' You stated that the parking brake on the GMEV would be applied and released by electrical means, but would be retained by a mechanical latching device. You requested NHTSA's concurrence that the planned parking brake would satisfy the requirement for mechanically retained engagement. We agree that S5.2 permits the parking brake to be applied and released by electrical or other non-mechanical means, so long as engagement is held by solely mechanical means. Your next several questions concern Standard No. 105's brake failure requirements. As noted by your letter, these requirements are set forth in S5.1.2 (partial failure), S5.1.3 (inoperative brake power assist unit or brake power unit), and S5.5 (failure in antilock or variable proportioning brake system), and the test procedures for these requirements are set forth in S7.9 and S7.10. GM Proposed Interpretation 4: The subject brake system is a 'split service brake system' consisting of four subsystems--one at each wheel. Standard No. 105 specifies different partial failure requirements depending on whether a vehicle is manufactured with a split service brake system. The term 'split service brake system' is defined in S4 as 'a brake system consisting of two or more subsystems actuated by a single control designed so that a leakage- type failure of a pressure component in a single subsystem (except structural failure of a housing that is common to two or more subsystems) shall not impair the operation of any other subsystem.' We agree that your planned vehicle can be viewed as having four subsystems, one at each wheel. In only two of the subsystems, however, can leakage-type failures occur (the two hydraulic subsystems). Thus, in determining whether the vehicle has a split service brake system within the meaning of Standard No. 105, the key is whether a leakage-type failure of a pressure component in either of those two subsystems (except structural failure of a housing that is common to two or more subsystems) impairs the operation of any other subsystem (i.e., the other hydraulic subsystem or either of the two other subsystems). After reviewing the information provided with your letter, we have no reason to doubt that your planned system qualifies as a split service brake system. GM Proposed Interpretation 5: The four service brake subsystems may be certified to the requirements of S5.1.2 in accordance with the test procedure of S7.9.1 through S7.9.3 by disabling each subsystem in a way that does not affect the other three subsystems. Standard No. 105's requirements for partial failure are set forth in S5.1.2. For vehicles with a split service brake system, 5.1.2.1 provides that, in the event of a rupture or leakage type of failure in a single subsystem, other than a structural failure of a housing that is common to two or more subsystems, the remaining portion(s) of the service brake system shall continue to operate and shall be capable of stopping a vehicle from 60 mph within specified stopping distances. You suggested that certification of the requirements of S5.1.2.1, consistent with the procedure of S7.9.1 through S7.9.3, should be established by disabling each of the four subsystems in turn. You also stated that, for purposes of compliance testing, the subsystems would be disabled in such a way that the functioning of only one subsystem would be affected. It is our opinion that, in testing under S5.1.2.1, only the two hydraulic subsystems of your planned brake system would be disabled, as S5.1.2.1 only addresses rupture/leakage types of failures. It does not address any type of failure of a subsystem for which a rupture or leakage type failure cannot occur. We would not consider a break in an electrical system to be a 'rupture' within the meaning of Standard No. 105. We are uncertain as to the meaning of your statement that, for purposes of compliance testing, the subsystems would be disabled in such a way that the functioning of only one subsystem would be affected. This could be read as meaning that the agency must induce a rupture or leakage type failure in a place that doesn't affect other subsystems. However, under S7.9.1, any one rupture or leakage type of failure is introduced, other than a structural failure of a housing that is common to two or more subsystems. If any such leakage type failure impaired another subsystem, the brake system would not, of course, be considered a split service brake system within the meaning of Standard No. 105. GM Proposed Interpretation 6: The GMEV brake system may be certified to the requirements of S5.1.3 in accordance with the test procedure of S7.10 by functionally disabling the BCU. Such a procedure will completely disable the brake power assist, and since the electric motors within the hydraulic unit and the rear brake drums are separately disabled during S5.1.2 testing, there is no need to separately consider these electric motors when certifying to the requirements of S5.1.3. Standard No. 105's requirements for inoperative brake power assist unit or brake power unit are set forth in S5.1.3. You stated that your planned brake system would not utilize conventional power assist, but brake power assist would be provided by the combination of the BCU and four electric motors. You stated that this design does not lend itself to an obvious way of distinguishing brake power assist from other service brake subsystem components, and suggested that the brake system be certified to the requirements of S5.1.3 by disabling the BCU (which would disable all four electric motors and completely eliminate functional brake power assist) and then satisfying the provisions of either S5.1.3.1, S5.1.3.2, or S5.1.3.4. You also sought the agency's concurrence that there is no need to otherwise take the four electric motors into account when certifying to the requirements of S5.1.3. S4 of Standard No. 105 defines the term 'brake power assist unit' as a device installed in a hydraulic brake system that reduces the operator effort to actuate the system, and that if inoperative does not prevent the operator from braking the vehicle by a continued application of muscular force on the service brake control. Under the options of S5.1.3.1, S5.1.3.2, and S5.1.3.4, stopping distance requirements must be met with one brake power assist unit inoperative. We believe that each electric motor comes within the definition of 'brake power assist unit.' In addition, given the integrated nature of the BCU and the four electric motors, we believe that the combination of the BCU/four electric motors also comes within the definition of 'brake power assist unit.' It is therefore our opinion that the requirements of S5.1.3 must be met both when the BCU is disabled (which would disable all four electric motors and completely eliminate functional brake power assist) and also when each of the four electric motors is disabled individually. We note that, under our interpretation of S5.1.2 discussed above, not all of the four electric motors are separately disabled during S5.1.2 testing. GM Proposed Interpretation 7: The GMEV brake system may be certified to the requirements of S5.5 in accordance with the test procedure of S7.9.4 by functionally disabling the BCU. Since such a procedure will completely disable ABS and the variable proportioning function, no other testing is required in connection with S5.5. Standard No.105's requirements for failed antilock and variable proportioning brake systems are set forth in S5.5. You stated that the BCU is the functional power source for the GMEV's ABS, and that the BCU also regulates the proportion of front to rear braking. You sought the agency's concurrence that disabling the BCU is the appropriate means of complying with S5.5, and is consistent with the procedure of S7.9.4. S5.5 provides that a vehicle shall meet certain stopping distance requirements in the event of failure (structural or functional) in an antilock or variable proportioning brake system. S7.9.4 provides the following test procedure: With vehicle at GVWR, disconnect functional power source, or otherwise render antilock system inoperative. Disconnect variable proportioning brake system. Make four stops, each from 60 mph. If more than one antilock or variable proportioning brake subsystem is provided, disconnect or render one subsystem inoperative and run as above. Restore system to normal at completion of this test. Repeat for each subsystem provided. We concur that your planned brake system should be tested to the requirements of S5.5 in accordance with the test procedure of S7.9.4 by functionally disabling the BCU, and that no other testing is required. Under S7.9.4, the antilock system is to be rendered inoperative and the variable proportioning system is to be disconnected. Both of these procedures are accomplished by functionally disabling the BCU. Further, it is our opinion that the planned brake system would not have antilock or variable proportioning subsystems, since antilock at all four wheels and variable proportioning are all controlled by the BCU. GM Proposed Interpretation 8: Assuming the conditions established in proposed S6.2, regenerative braking is permitted to function normally when conducting the test procedures of S7. In particular, the phrase 'service brakes shall be capable of stopping' (found in S5.1.4 and S5.1.5, for example) is not to be construed as prohibiting the normal operation for regenerative braking. In addressing how the current requirements of Standard No. 105 would apply to your vehicle, we cannot assume the conditions you recommend establishing in a new S6.2. The agency would need to add those conditions to the standard in rulemaking. I will therefore address how regenerative braking would be treated under the current requirements. As discussed in your letter, regenerative braking assists in decelerating the vehicle by converting the kinetic energy of the moving vehicle into stored electrical energy within the vehicle's battery pack. Regenerative braking on the planned GM electric vehicle will supplement, under certain conditions, the friction braking provided by the service brakes. You stated that regenerative braking will only be available when the vehicle is 'in gear.' Since the large majority of Standard No. 105 tests are conducted with the vehicle in 'neutral,' regenerative braking will have no influence on the outcome of those tests. You indicated that since some Standard No. 105 tests, notably fade and recovery and the water test, are conducted with the the vehicle 'in gear,' regenerative braking could occur during these tests. You stated that you believe that regenerative braking should generally be allowed to function normally during Standard No. 105 testing. You argued that the regenerative braking which may occur during 'in gear' Standard No. 105 tests is little different from the engine braking which occurs in conventional ICE vehicles. We agree that regenerative braking should function normally during Standard No. 105 testing, just as engine braking occurs normally during Standard No. 105's 'in gear' tests. Another issue that you raised in connection with regenerative braking is the state of battery charge during testing, which can affect the amount of regenerative braking. You proposed (for your recommended new S6.2) that tests be initiated with a full charge of the vehicle's battery pack, so that the amount of regenerative braking that would occur during the tests would be minimized to the least amount that could occur in real world driving, i.e., the tests would be conducted under 'worst case' conditions. While Standard No. 105 specifies many test conditions, it does not specify state-of-battery charge. In an interpretation letter to Mazda dated October 2, 1990, we provided general guidance concerning how NHTSA interprets a standard where it does not specify a particular test condition. First, we stated that, in the absence of a particular test condition, we believe there is a presumption that the requirements need to be met regardless of such test condition, since the standard does not include any language which specifically limits applicability of its requirements to such test condition. We also indicated, however, that before reaching such a conclusion, we also consider the language of the standard as a whole and its purposes. It is our opinion that the braking requirements of Standard No. 105 must be met regardless of the state of battery charge. The purpose of Standard No. 105 is to ensure safe braking performance under normal and emergency conditions. Since an electric vehicle will be driven with the battery at various states of charge, safe braking performance can only be ensured if the standard's requirements can be met in all such conditions. This would generally be consistent with GM's suggestion that compliance testing be conducted under 'worst case' conditions. GM Proposed Interpretation 9: In addition to the explicit conditions for activation of the brake telltale set forth in S5.3 of the standard, permit illumination of the service brake telltale when an impending or latent brake system malfunction is detected during electrical diagnosis. As noted by your letter, S5.3.1 of Standard No. 105 requires a brake telltale to illuminate when there is a gross loss of hydraulic pressure (or, alternatively, a drop in fluid level), a total functional electrical failure in the antilock or variable proportioning brake system, and when the parking brake is applied. You stated that a brake telltale on the planned GMEV would illuminate under these prescribed conditions. You indicated, however, that a diagnostic capability will also exist to detect other faults in the brake system, and requested the agency's concurrence that S5.3.1 permits illumination of the brake telltale when other faults are detected which increase the likelihood of a substantial degradation in brake system performance. While Standard No. 105 requires that a brake telltale be provided which activates under certain specified conditions, it does not expressly state whether the required telltale may also be activated under other conditions. It is our opinion that the telltale may also activate under other conditions so long as such activation does not obscure or confuse the meaning of the required telltale or otherwise defeat its purpose. I note that this test is similar to one the agency has long used in addressing the issue of whether additional information may be provided along with information that is required to be labeled on certain products in the context of our safety standards. See, for example, NHTSA's December 20, 1991 interpretation letter to GM concerning Standard No. 209. The purpose of the brake telltale is to warn the driver of one of two conditions: (1) the parking brake is applied (and hence should be released before driving), or (2) the brake system has a significant fault which should be corrected. Since the additional conditions for activation which GM contemplates would represent significant brake system faults which should be corrected, it is our opinion that activation of the brake telltale under such conditions would not in any way defeat the purpose of the brake telltale. I hope you find this information helpful. If you have further questions, please contact Edward Glancy of my staff at this address or by telephone at (202) 366-2992. Sincerely, Paul Jackson Rice Chief Counsel";

ID: 21124.drn

John A. Green, Supervisor
California Department of Education
Office of School Transportation
721 Capitol Mall
P. O. Box 944272
Sacramento, CA 94244-2720






Dear Mr. Green:

This responds to your letter asking about an Oceanside (California) Unified School District school bus modified with a product manufactured by Majestic Transportation Products, Ltd. , (Majestic) called the Safe-T-Bar passenger restraint system.

You explain that the Safe-T-Bar is a "heavily padded U-shaped bar similar to the type of restraint systems most commonly found on amusement park rides." Majestic asserts that "during a sudden stop, collision, or bus rollover - etc., a small weighted pendulum swings and engages a latch, locking the 'Safe-T-Bar' in the down position, thereby controlling and restraining the passenger within the padded seating area." You further inform us that Majestic and the Oceanside Unified School District are "cooperating" in testing the system on an Oceanside school bus. You do not describe how or what type of testing is being conducted, or whether school children are involved in the testing.

You asked that we respond to six questions. The questions address the safety of the Safe-T-Bar system and whether a school bus that has its passenger seats retrofitted with Safe-T-Bars would continue to meet Federal motor vehicle safety standards (FMVSS), including Standard No. 222, School Bus Passenger Seating and Crash Protection. Our answers are provided below. In addressing your questions, it might be helpful to have some background information on school bus crash protection.

In response to the Motor Vehicle and Schoolbus Safety Amendments of 1974, we issued a number of safety standards under the National Traffic and Motor Vehicle Safety Act (now codified at 49 U.S.C. 30101 et seq.) to improve protection of school bus passengers during crashes. One of these standards was Standard No. 222, which provides for passenger crash protection through a concept called "compartmentalization." Prior to issuance of Standard No. 222, we found that the school bus seat was a significant factor contributing to injury. We found that seats failed the passengers in three principal respects: by being too weak; too low; and too hostile. In response, we developed requirements to improve the performance of school bus seats and the overall crash protection of school buses. Those requirements comprise the "compartmentalization" approach we adopted for providing high levels of crash protection to school bus passengers.

Compartmentalization is directed toward ensuring that passengers are surrounded by high-backed, well-padded seats that both cushion and contain the children in a crash. If a seat is not compartmentalized by a seat back in front of it, compartmentalization must be provided by a restraining barrier. The seats and restraining barriers must be strong enough to maintain their integrity in a crash yet flexible enough to be capable of deflecting in a manner which absorbs the energy of the occupant.They must meet specified height requirements and be constructed, by use of substantial padding or other means, so that they provide protection when they are impacted by the head and legs of a passenger.

It is helpful to bear in mind the following highlights about compartmentalization:

(1)	Compartmentalization provides effective occupant crash protection, minimizes the hostility of the crash environment, and limits the range of movement of an occupant, without using seat belts;
(2)	Compartmentalization ensures that high levels of crash protection are provided to each passenger independent of any action on the part of the occupant; and
(3)	Seat belts are needed on passenger cars and other family vehicles and on small school buses (school buses with a GVWR of 10,000 pounds or less) because the crash pulse, or deceleration, experienced by the lighter vehicles is more severe than that of larger vehicles in similar collisions. Large school buses are inherently safer vehicles because they are larger and heavier than the vast majority of the other vehicles on the road. In addition, occupants in large school buses sit above the forces that are typically imparted to the bus by smaller impacting vehicles during a crash. The training and qualification requirements for school bus drivers and the extra care taken by other road users in their vicinity add to the safety of school buses.

With this background in mind, we now turn to your questions.

1.    Does testing of any product in an independent testing facility (other than [by] a manufacturer) certify that the product meets applicable FMVSS?

The answer is no. The manufacturer of a motor vehicle must certify that the vehicle meets applicable FMVSSs. Under 49 CFR Part 567, Certification, the motor vehicle manufacturer must "affix to each vehicle a label" that among other information, states: "This vehicle conforms to all applicable Federal motor vehicle safety standards in effect on the date of manufacture shown above." This statement is the certification.

Most items of the motor vehicle equipment that have applicable FMVSS are marked "DOT" to indicate that they meet the standards' requirements. Regarding certification to FMVSS requirements, independent testing laboratories sometimes provide services to vehicle and equipment manufacturers, including information and test data that support the manufacturers' certifications. However, testing by itself is neither a certification nor a substitute for certification.

2.    Does NHTSA certify independent testing facilities?

The answer is no. Any representation that NHTSA "certifies" or "approves" test laboratories or facilities to conduct compliance testing, or for any other purpose, would be misleading. I note that in its information to you, Majestic describes a testing facility that produced a "comprehensive seventy two page report" as a "federally approved collision testing facility." NHTSA has not approved the facility, or any other facility, to conduct compliance testing or for any other purpose.

3.    Does the Safe-T-Bar system conform to the Federal Motor Vehicle Safety Standards?

Because the Safe-T-Bar system is an item of equipment that is sold separately from a school bus, there are no safety standards that directly apply to it. Our safety standards for school buses apply to new, completed vehicles, not to separate components or systems. As such, Standard No. 222 does not apply to the Safe-T-Bar system, assuming the system is sold in the aftermarket and is not sold as part of a new school bus. A representation that a product meets crash protection standards that do not apply is misleading. ⁽¹⁾

If the Safe-T-Bar system were installed on new school buses, the vehicle would have to meet Standard No. 222 and the other school bus standards with the product installed. Without testing a vehicle, we cannot make a positive determination of whether the standard could be met with the product installed. However, as explained below, we believe that a new school bus may not be able to meet the standard with the Safe-T-Bar system. We have other safety concerns as well, apart from whether the requirements of Standard No. 222 could be met.

4.    Does the Safe-T-Bar system make inoperative the school bus's compliance with Standard No. 222?

Section 30122 of our statute prohibits a motor vehicle manufacturer, dealer, distributor, or repair business from installing any modification that "make[s] inoperative any part of a device or element of design installed on or in a motor vehicle in compliance with an applicable motor vehicle safety standard . . . ." Any person in the aforementioned categories that makes inoperative the compliance of a device or element of design on the vehicle would be subject to fines of up to $1,100 per violation and to injunctive relief.

The compartmentalization requirements of Standard No. 222 include requirements that a protective seat back must be provided to protect an unrestrained passenger. We are concerned about the continued compliance of a bus with a Safe-T-Bar installed with Standard No. 222's seat deflection and head and leg protection requirements.

5.    Does the Safe-T-Bar attachment to a school bus passenger seat back reduce or compromise the effectiveness of compartmentalization?

We believe it is possible that the incorporation of the Safe-T-Bar system into existing school bus seats would reduce the benefits of compartmentalization, and otherwise adversely affect safety. NHTSA has previously discussed compliance and other safety concerns applicable to similar devices, including the R-Bar, a padded restraining device designed to be mounted on the seat backs of school buses that folds down to restrain the passengers in the next rearward seat. In a letter of October 15, 1993 (copy enclosed), NHTSA summarized how it has addressed various compliance and safety issues applicable to devices similar to R-Bars and the Safe-T-Bar:

As we stated in a letter to Mr. Kenneth A. Gallo dated February 19, 1993, (copy enclosed) the agency believes that the concept of using "safety bars" as occupant retraining devices in school buses raises significant safety concerns, including whether the bar could result in excessive loads (e.g., abdominal, leg or chest) on occupants during a crash, as a result of contact between the bar and the occupants. We explained in a July 14, 1992, letter to you (copy enclosed) that the vehicle in which R-Bars are installed must meet the requirements of Standard No. 222 with the device in any position in which it may be placed. We have said that if a padded restraining device similar to the R-Bar is attached to the seat back, it becomes part of the seat and the device, as folded into its position, must not intrude into the leg protection zone described in S5.3.2 of Standard No. 222 (NHTSA letter of January 31, 1991, to Mr. Scott Hiler, enclosed). Also enclosed are NHTSA letters of March 10, 1989, and November 3, 1988, to Mr. Joseph Nikoll, which discuss issues concerning installation of "safety bars" in small school buses in addition to or in lieu of the seat belts required by Standard No. 208.

Standard No. 222 specifies a forward and a rearward push test on the seat back of a school bus seat. These tests are designed to require seat backs to deform in a controlled manner. For example, in a frontal crash, occupants will impact the seat back in front of their seating position. That seat back must deflect forward to absorb energy from the occupants, but not collapse so far as to cause injuries to passengers seated in front of it. Our crash statistics show that the compartmentalization concept supported by Standard No. 222 has been successful in protecting the students who ride on the nation's school buses.

The agency is concerned that the introduction of Safe-T-Bar type devices will adversely affect the protection provided by Standard No. 222. Using the same frontal crash example, these devices will likely place loads on the student's abdomen and force the upper torso to rotate around the bar, place strains on the student's spine, and allow the heads of larger students to strike the top of the seat back in front of them. In contrast, unrestrained passengers will translate forward into the seat back in front of them and distribute the load across their entire upper torso. Standard No. 222 requirements for head and leg protection, where compliance is demonstrated by impacting the seat back, result in seat designs that accommodate this type of loading.

In addition, Safe-T-Bar type devices can reduce and otherwise limit the living space between seats. In the event a seat back is loaded and deformed by the students in the rear seat, the students in the forward seat may be sandwiched between their seat back and the restraining device attached to the seat in front of them. Similar arguments may be made for rear end impacts.

6.    If a school bus were retrofitted with the Safe-T-Bar system, will the school bus continue to meet all applicable Federal motor vehicle safety standards?

Compartmentalization is intended to restrain passengers in a crash without seat belt assemblies or devices such as the Safe-T-Bar. As previously explained, we have concerns about a product that might interfere with the capability of a school bus to protect occupants.

For the above reasons, we believe that a school bus seating system with a bar system might reduce the crash protection provided in vehicles which meet the requirements of the Federal motor vehicle safety standards. There is limited information on how bar systems would perform in a crash or affect the current safety of school buses. We are undertaking a comprehensive school bus safety research program to evaluate better ways of retaining occupants in the seating compartment. As part of that program, we will be looking into possible ways of redesigning the school bus seat, as well as integrating a lap and shoulder belt into the seat that is compatible with compartmentalization. Also, we plan to conduct research on extra padding, not only for the seat itself but also for the bus side wall.

On a final note, we would like to point out that many of Oceanside's newer school buses may still be under the school bus manufacturer's warranty. Before Oceanside decides to retrofit any school bus with the Safe-T-Bar or a similar system, it may be prudent for the school district to share Majestic's information with the school bus manufacturer, and request a determination whether the school bus manufacturer will continue to honor applicable warranties if the Safe-T-Bar system were placed on school buses.

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

Sincerely,

Frank Seales, Jr.
Chief Counsel

Enclosures

ref:222
d.9/25/00

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1. Regardless of whether a safety standard applies to the product, our statute at 49 U.S.C. 30120 requires manufacturers of motor vehicles and motor vehicle replacement equipment to notify owners and to provide remedies if it is determined their products have safety-related defects. If it were determined that the Safe-T-Bar systems had a safety-related defect, the manufacturer would have to notify all purchasers and repair or replace the defective item without charge.

ID: nht87-2.78

TYPE: INTERPRETATION-NHTSA

DATE: 08/26/87

FROM: ERIKA Z. JONES -- NHTSA CHIEF COUNSEL

TO: TAK FUJITANI -- PROGRAM MANAGER, INSPECTION SERVICES OFFICE OF FLEET ADMINISTRATION CALIFORNIA

TITLE: NONE

ATTACHMT: ATTACHED TO LETTER DATED 08/24/89 EST; FROM JEFFREY R. MILLER -- NHTSA TO MICHAEL E. KASTNER -- NATIONAL TRUCK EQUIPMENT ASSOCIATION; REDBOOK A34; STANDARD 204; LETTER DATED 08/01/89 FROM MICHAEL E. KASTNER -- NATIONAL TRUCK EQUIPMENT ASSOCIATI ON; TO SAMUEL K. SKINNER -- DOT; OCC 3809; LETTER DATED 06/29/89 FROM SAMUEL K. SKINNER -- DOT TO ERNEST F. HOLLINGS -- SENATE

TEXT: Dear Mr. Fujitani:

This letter responds to your inquiries addressed to Joan Tilghman of my staff. Your letters concern buses purchased by the State of California, and manufactured by Champion Home Builders, Commercial Vehicle Division (Champion). You inform us that Champio n is a final stage manufacturer of vehicles built on a Ford chassis. You have rejected delivery of these vehicles because you assert that they do not comply with either California or Federal motor Vehicle regulations. This response addresses only those issues arising from Federal requirements.

As I understand your letters, you pose two principle questions. First, you ask whether classifying an incomplete vehicles as a "chassis" rather than as a "chassis cab" means that a final stage manufacturer can not alter the original chassis manufacturer 's gross vehicle weight rating (GVWR). You assert that Champion's altering of the GVWR on a vehicle classified as a "chassis" is a noncompliance under 49 CFR sections 567.5 and 568.4 which you may use as grounds for rejecting delivery of Champion's vehi cles.

Your second question involves data set out in your letter of April 14, suggesting that Champion's certified GVWR for these vehicles is less than the sum of the unloaded vehicle weight, the rated cargo load, and 150 lbs. times the vehicles' designated sea ting capacity. You state that this circumstance is a second noncompliance with Federal regulations upon which you have rejected delivery of Champion's buses.

The Cutaway Chassis/Chassis Cab Question.

In both your letters, you refer to provisions of 49 CFR 567.5 and 568.4, and to a 1977 Federal Register document (42 FR 37814, 37816, July 25, 1977). You state your interpretation of these 49 CFR provisions as "mean(ing) that final stage manufacturers ( who build on RV cutaways) are not authorized to alter the (GVWR) imposed by incomplete vehicle manufacturers since final stage manufacturers do not have any basis for

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certifying a greater load carrying capaci(ty) without altering axle components to handle the extra load." As I understand it, when you speak of an RV cutaway you mean a vehicle chassis with an incomplete occupant compartment, intended for completion as a recreational vehicle. For any incomplete vehicle (including a cutaway or chassis cab), Part 568 requires the incomplete vehicle manufacturer to provide a document that describes how to complete the vehicle without impairing the vehicle's compliance sta tus. This document is not a certification.

If the incomplete vehicle is other than a chassis cab, the final stage manufacturer who builds on the incomplete vehicle must certify its compliance with all applicable Federal motor vehicle safety standards (FMVSS). On the other hand, the certification process is different if an incomplete vehicle meets the agency's definition of "chassis cab." The Federal Register document to which you refer amended 49 CFR Parts 567 and 568 to conform with a court decision holding that NHTSA could not require a final stage manufacturer to make the "sole certification" of compliance for a vehicle built on a chassis cab. As a consequence of this decision, NHTSA established a dual certification scheme for such vehicles in which the chassis cab manufacturer makes one c ertification statement in each of three categories, and the final stage manufacturer makes corresponding statements depending on how the final stage manufacturer affects any applicable Federal motor vehicle safety standard (FMVSS).

Under this dual certification scheme, the original chassis cab manufacturer may provide instructions telling a final stage manufacturer how to complete a vehicle so that it conforms with applicable FMVSS. The final stage manufacturer has the choice of e ither conforming his work to the chassis cab manufacturer's instructions and shifting the burden under Part 567 of certifying compliance to the chassis can manufacturer; or deviating from those instructions, and assuming the certification burden for hims elf. Further, the final stage manufacturer must certify compliance respecting any FMVSS for which the chassis cab manufacturer makes no representation.

While you are correct that in the 1977 Federal Register document the agency decided to exclude RV cutaways from the definition of "chassis cab," the only effect of this exclusion is that dual certification requirements do not apply to vehicles completed on an RV cutaway.

Therefore, the answer to your first question is that a final stage manufacturer may change the GVWR for any incomplete vehicle, irrespective of whether he builds the completed vehicle on an RV cutaway or a chassis cab. However, if the final stage manufa cturer changes the GVWR for the vehicles, it must certify that the vehicle complies with all applicable FMVSS at this new GVWR. Compliance with Standards No. 105, Hydraulic Brake Systems, and No. 120, Tire Selection and Rims for Vehicles Other Than Pass enger Cars might well be affected by an increase in the GVWR. The final stage manufacturer is required to exercise "due care" when certifying that its vehicle complies with all safety standards at this increased GVWR. Our Office of Vehicle Safety Compl iance has asked the

3

[Illegible Word] stage manufacturer of these vehicles to provide the data and other evidence that were the basis for Champion's certification of compliance at this higher GVWR.

Champion's Certified GVWR Calculation.

Part 567 of NHTSA regulations sets out requirements for affixing a certification label or tag to a motor vehicles. Section 567.4(g)(3) of that Part states that the certified GVWR:

". . . shall not be less than the sum of the unloaded vehicle weight, rated cargo load, and 150 pounds times the vehicle's designated seating capacity. However, for school buses the minimum occupant weight allowance shall be 120."

In your April letter, you supply weightmaster readings for the two Champion motor vehicles that are the subject of your inquiry. While Champion certifies the GVWR for both these vehicles at 12,000 pounds, you indicated that according to your $ 567.4(g)( 3) calculation, the same are 12,147 pounds and 12,580 pounds. This agency considers vehicle overloading a serious safety problem for the affected vehicle and for the motoring public, and NHTSA may take appropriate remedial action against any manufacturer whose vehicle, laden with its intended cargo load, exceeds the manufacturer's GVWR. NHTSA's Office of Vehicles Safety Compliance is investigating this matter further.

Sincerely,

Erika Z. Jones Chief Counsel

February 17, 1987

Dear Ms. Tilghman:

This letter is in reference to our telephone conversation on February 6, 1981, concerning the interpretation of the National Highway Traffic Safety Administration (NHTSA) statutes, regulations and standards. Particularly in 49 CFR 567.5, paragraph (c), ( iii), labeling and certification requirements for final stage manufacturers who complete certain incomplete vehicles. and 49 CFR 568.4 which requires the incomplete vehicle manufacturer to furnish with the incomplete vehicle a document that contains:

(1) Name and mailing address of the incomplete vehicle manufacturer,

(2) Month and year during which the incomplete vehicle manufacturer performed his last manufacturing operation on the incomplete vehicle.

(3) Identification of the incomplete vehicle to which the document applies.

(4) Gross vehicle weight rating of the completed vehicle for which the incomplete vehicle is intended.

(5) Gross axle weight rating for each axle of the completed vehicle.

(6) Listing of the vehicle types as defined in 49 CFR 571.3 of this chapter (e.g., truck, MPV, bus, trailer) into which the incomplete vehicle may appropriately be manufactured.

(7) Listing by number of each standard, in effect at the time of manufacture of the incomplete vehicle, that applies to any of the vehicle types listed in this paragraph (a)(6) of this section, followed in eaxch case by one of the following three types o f statement, as applicable:

(i) A statement that the vehicle when completed will conform to the standard if no alterations are made in identified components of the incomplete vehicle.

(ii) A statement of specific conditions of final manufacture under which the manufacturer specifies that the completed vehcile will conform to the standard.

(iii) A statement that conformity with the standard is not substantially affected by the design of the incomplete vehicle, and that the incomplete vehicle manufacturer makes no representation as to conformity with the standard.

In referencing 49 CFR 567.5, paragraph (c)(iii), we interpret the regulation to mean that the RV Cutaway chassis rated at 11,000 lbs. GVWR by the incomplete vehicle, manufacturer, is not classfied as a chassis-cab, therefore, no allowance is made to perm it alterations as they do for chassis-cabs.

In the Federal Register, 42 FR 47816. July 25, 1977, NHTSA denied the Recreation Vehicle Industry Association's (RVIA) request to change the definition of chassis-cab to include certain incomplete vehicles that are completed as motor homes and cutaway ch assis, etc. RVIA requested this rule change possibly because chassis-cabs may be altered and new GAWR and GVWR ratings may be certified by the final stage manufacturer.

The provisions in part 56B - vehicles manufactured in two or more stages - prescribes methods by which manufacturers of vehicles manufactured in two or more stages ensure conformity of those vehicles with the Federal Motor Vehicle Safety Standards and ot her regulations issued under the National Traffic and Motor Vehicle Safety Act.

We interpret the regulations, 567.5(c)(iii). and 568.4(4) (5). to mean that final stage manufacturers are not authorized to alter the gross vehicle weight ratings imposed by incomplete vehicle manufacturers since final stage manufacturers do not have any basis for certifying a greater load carrying capacities without altering axle components to handle the extra load.

The types of vehicles in question are;

Incomplete vehicle, Ford RV Cutaway chassis, 176" wheel base, rated at 11,000 lbs. GVWR.

The completed vehicles may be:

- 16 passenger bus with two (2) wheelchair stations and chair lift. - 22 passenger bus with a drive line Telma electric retarder. - 24 passenger bus.

The new gross vehicle weight ratings may be:

- 11,550 lbs. GVWR

- 11,900 lbs. GVWR

The buses being questioned are manufactured by Champion Home Builders, Commercial Vehicle Division; however, there are other manufacturers following similar guidelines.

We are holding up three purchases which we feel may be overloaded when maximum passengers are being carried.

Please advise us of you legal opinion on this matter at your earliest convenience. This issue is safety related and I believe that manufacturers are not in compliance with the aforementioned regulations and instructions provided by the incomplete vehicle manufacturer.

Sincerely,

Tak Fujitani Program Manager Inspection Services

cc: George Williams

California Highway patrol Motor Carrier Section Sacramento, California 95814 (916) 445-1526

April 14, 1987

Dear Ms. Tilgman:

This is supplemental letter following my letter of request for interpretation of 49 CFR 567.5(c)(iii) and 49 CFR 568.4 dated February 17, 1987, and telephone discussions held during the past week.

As I have mentioned in my letter of February 17, 1987, be interpret the regulations 567.5(c)(iii), and 568.4(4)(5), to mean that final stage manufacturers are not authorized to alter gross axle weight ratings and gross vehicle height ratings imposed by i ncomplete vehicle manufacturers, particularly, on GVWR cutaway chassis which are rated at 11,000 lbs. GVWR

The factor affecting the 11,000 lbs. limitation is based on the least rated component, which is the rating of 7,400 lbs. imposed on the rear axle, Adding additional springs on the rear axle will not increase the load carrying ability of the completed veh icle. We have confirmed this through Ford Light Truck Applications and Dana Axle Applications Engineers; both have stated that the application of the completed vehicle remain; at 11,000 lbs. GVWR in RV cutaway chassis.

Champion Home Builders Company rates the completed vehicle at 12,000 lbs. GM, which is not consistent with the incomplete vehicle manufacturers instructions, and it is misleading to owner/operators to have two load ratings.

Three buses manufactured or Champion Home Builders Company and ordered for the State of California, Department of Parks and Recreation at Angle Island State Park were inspected on April 1 and again on April 7 for compliance with the State specifications at TW Bus Sales in West Sacramento.

Two of these buses are 25 passenger perimeter seating tour buses, and the other is a 21 passenger forward seating bus with rear storage compartment 33 inches deep. All three buses are equipped with a Telma electric brake retarder system, CD 30, or equal. One 25 passenger bus and one 21 passenger bus were weighed to calculate the loaded weight of the buses. Following are the weighmaster readings with load calculations: 21 passenger bus 25 passenger bus forward facing seats perimeter seating rear luggage compartment seats front axle, unladen weight 3,520 lbs. 3,660 lbs. rear axle, unladen weight 5,180 lbs. 4,920 lbs. total 8,700 lbs, 8,580 lbs. 21 passengers and 25 pass engers and driver at 150 lbs. 3,300 lbs. driver at 150 lbs. 3,900 lbs. luggage-day packs or small picnic baskets 7 lbs. atx 21 people 147 lbs. 4 bicycles & rack 100 lbs total 12,147 lbs 12,500 lbs.

Certification labels on the buses are:

* Ford Incomplete Vehicle label * Champion Home Builders Co. label 11,000 lbs. GVWR Date of Mfg 11-86 type bus 12,000 lbs. GVWR WB Type Body Trans Axle Sp Inc Veh Mftg by Ford 176" E303 AK G 52 OL Dste of Mfg 9-85

* Incomplete Vehicle Manual

GVWR 11,000 lbs. F GAWR R GAWR F GAWR R GAWR 4,200 lbs 7,400 lbs. 4,200 lbs. 8,200 lbs. LT215/85R16D LT215/85R16D LT215/85R16D LT215/75R16D 16X6K 16K6K 16X6K 16X6K dual 58p Champion Ser No. 5573241F1984

May be completed as: Multi Pur Pass Veh Truck

The Office of Fleet Administration has rejected the three buses delivered to the State by Champion Home Builders Company on grounds of noncompliance with State and Federal Regulations. * California Vehicle code, Division 12, Equipment of Vehicles Section 24002: Vehicle not Equipped or Unsafe

Section 24011: Federal Safety Standards

* Code of Federal Regulation, Title 69, Transportation 49 CFR 567.5(c) (s)(iii), Certification Label

49 CFR 578.4(4) 95). Requirements for Incomplete Vehicle Manufactur4r's

* Gross Vehicle Weight Rate in. Final stage manufacturers of vehicles manufactured in two or more stages are required to affix a label to each vehicle which contains, among other statements, Gross Vehicle height Rating or GVWR" followed by the appropriat e value in pounds, which shall not be less than the sum of the unloaded vehicle weight, rated cargo load, and 150 pounds time the vehicle's designated seating capacity.

The gross vehicle weight rating posted on the certification label is less than the sum of the unloaded vehicle weight, rated cargo load, and 150 pounds times the vehicle's designated seating capacity, the incomplete Vehicle Manufacturers rating of 11,000 pounds should be applied, however, it is also out of compliance with Champion's GVWR of 12,000 pounds.

We believe that the final stage manufacturer is not in compliance with the aforementioned regulations and instructions provided by the incomplete Vehicle manufacturer.

Please advise us or your legal opinion and interpretation of the regulations we have discussed

Sincerely,

Tak Fujitani Program Manager Inspection Services

Attachments

cc: George William

California Highway Patrol Motor Carrier Section

Tom McCauley Office of procurement

ID: 23055-2.drn

Walter J. Lewis, Senior Compliance Engineer
Porsche Cars North America, Inc.
980 Hammond Drive
Atlanta, GA 30328

Dear Mr. Lewis:

This responds to your request for an interpretation of the requirements for heating/air conditioning controls specified in Federal Motor Vehicle Safety Standard No. 101, Controls and Displays. In particular, you asked whether, for a proposed system you are considering, the design concept for identifying the temperature control, fan speed control, windshield defroster, rear window defroster, and the air conditioning/heating system would meet Standard No. 101's requirement that identification of controls be "on or adjacent" to the control. Our response is provided below.

Because your system is still undergoing development, certain specifics about how some controls are to be actuated or adjusted and identified are apparently not available. However, we believe we have sufficient information about your system, including its basic concept, to respond to your question. The following represents our understanding of how your proposed system would function, based in part on a June 18, 2001, meeting between National Highway Traffic Safety Administration officials, and Mr. Stephan Schlaefli, Porsche's General Manager for Compliance, and Mr. Dale Kardos, a Porsche consultant.

Porsche's Proposed Design for Its Control and Display System

With your letter, we were provided three additional pages: a computer-generated depiction of a passenger car interior with the proposed system, and two other pages that depict images of identification of controls as they would appear on a video display screen. ⁽¹⁾ The computer-generated image shows on the front dash a small video display screen. On a center console between the driver's seat and the front passenger seat are several buttons and a "combination multi-function switch/rotary dial." This latter device includes a dial which can be rotated and what might be called four toggle switches around the dial (or a joystick that can be moved to four positions). The buttons and combination multi-function switch/rotary dial are the controls for temperature, fan speed, the windshield defroster, the rear window defroster, heating and air conditioning, and other functions such as the radio and navigational guide.

A. Buttons Used with Video Display Screen

The buttons consist of the following, from left to right:

• A single button labeled "C," which stands for "cancel."
• A temperature control button, below which is a fan control button
• A windshield defroster control button, below which is a rear window defroster control button

Apparently, by pressing "C," one can cancel the most recently actuated function. Except for "C," each button is labeled with the ISO symbol for the respective function. Pressing the respective button turns on each function. To adjust the respective function, (i.e., increase or decrease fan speed, or raise or lower the temperature), one uses the dial that is part of the combination multi-function switch/rotary dial (located under the various buttons). This dial must be used in conjunction with the video display screen.

For example, to actuate the fan speed control, one presses the fan speed button (on the console between the driver and front passenger seats). On the video display (on the front dash) appears a circle that depicts the dial, with the fan symbol in the middle. Curved arrows within the circle point to the right and left. On another part of the video display appears the fan symbol next to six vertical bars that increase in height from short to long. Turning the dial makes the fan speed faster or slower. The fan speed is indicated by the number of illuminated bars. The faster the fan spins, the more bars are illuminated. By turning the dial to the right or left, one sees the number of bars either illuminating or darkening, until all bars are either illuminated or dark.

B. Primary Functions for the Combination Multi-Function Switch/Rotary Dial

If the dial were compared to the face of a clock, at the 12, 3, 6 and 9 o'clock positions of the dial are what appear to be toggle switches (or a joystick) that can be adjusted at each position. Only one position at a time can be selected.

• The 12 o'clock position is labeled "A/C," for air conditioning,
• The 3 o'clock position is labeled "SET," which stands for an unspecified function or functions (which apparently do not include controls specified in Table One of Standard No. 101),
• The 6 o'clock position is labeled "Radio" and
• The 9 o'clock position is labeled "BC" which is an abbreviation for the on-board computer that provides information such as fuel consumption, and oil temperature.

We assume the dial can be rotated indefinitely.

C. Multiple Uses for the Combination Multi-Function Switch/Rotary Dial

Although the four dial positions are labeled as described above, they in fact can be used for multiple functions that must be actuated in conjunction with the video display screen on the front dash. Not all of the functions that are available by use of the toggle switches and dials were described.

To give an example, to actuate the air conditioning system, one pushes the toggle switch at the 12 o'clock position (labeled "A/C") of the dial. One knows the air conditioning function is actuated because a new screen appears (on the video display screen), in the corner of which the term "AC" is highlighted. On the new screen appears a circle in the middle of which is the ISO symbol for temperature (a depiction of a thermometer) with the term " C." The circle represents the dial. We assume that the air conditioning can be turned up or down by turning the dial.

Contrary to what is actually labeled on the center console dial, the video display screen shows four entirely different functions for the air conditioning control. On the video display screen, the 12 o'clock position is labeled with the ISO symbol for air conditioning (a snowflake), the 3 o'clock position is labeled with the ISO symbol for air vent direction (three arrows pointing towards a passenger seat), the 6 o'clock position is labeled "Auto" (which apparently stands for a default position that one can set) and the 9 o'clock position is depicted with a symbol which we assume stands for air circulation (three curved arrows forming a circle).

If one wants to adjust the air vent direction, one pushes the toggle switch (located on the center console) at the 3 o'clock position. One knows when the correct function is selected because in the corner of the display screen, the ISO symbol for air vent direction is highlighted. Selection of the air vent direction function results in the display of other images on the display screen, this time the circle with four alternative air vent directions at each clock position. The desired air vent direction is selected by pushing the toggle switch at the depicted position.

Would a Vehicle With the Proposed Design Meet Standard No. 101's Requirement that Identification of Controls be "on or adjacent" to the Control?

With this background information, I will now address how Standard No. 101 affects your proposed design. S5.2.1(a) states in relevant part:

[a]ny hand-operated control listed in column 1 of Table 1 that has a symbol designated for it in column 3 of that table shall be identified by either the symbol designated in column 3 ... or the word or abbreviation shown in column 2 of that table. ... Any such control for which column 2 of Table 1 and/or column 3 of Table 1 specifies "Mfr. Option" shall be identified by the manufacturer's choice of a symbol, word or abbreviation, as indicated by that specification in column 2 and/or column 3. The identification shall be placed on or adjacent to the control. (Emphasis added.)

Controls listed in column 1 of Table 1 include the "heating or air conditioning fan," the "windshield defrosting and defogging system," the "rear window defrosting and defogging system," and the "heating and air conditioning system."

Further, S5.2.2 states in relevant part:

Identification shall be provided for each function of any automatic vehicle speed system control and any heating and air conditioning system control, and for the extreme positions of any such control that regulates a function over a quantitative range. If this identification is not specified in Table 1 or Table 2, it shall be in word or symbol form unless color coding is used. If color coding is used to identify the extreme positions of a temperature control, the hot extreme shall be identified by the color red and the cold extreme by the color blue.

The primary issue raised by your proposed design is whether, given the substantial distance between the combination multi-function switch/rotary dial and the related video display, the identification provided by means of the video display can be said to meet the standard's requirement that identification for specified controls be provided "on or adjacent to" the control.

I note that, in both the case of the fan control and the heating and air conditioning system controls, one must rely on the video display screen for identification of all of the functions. As previously noted, one turns the fan on or off by pressing on one of the buttons above the dial on the center console, and one turns on the heating and air conditioning system by pressing the toggle switch at the 12 o'clock position on the combination multi-function switch/rotary. In both cases, pressing the button or switch turns the function on, but to adjust the system, the dial must be turned to the right or left. The identification of the function engaged in twisting the dial is shown on the video display screen only, not on the center console.

The Random House Compact Unabridged Dictionary, Special Second Edition, defines "adjacent" as follows:

1. lying near, close, or contiguous; adjoining; neighboring: a motel adjacent to the highway. 2. just before, after, or facing: a map on the adjacent page.

In a June 8, 2000, letter to an unnamed company, we addressed a proposed design where several multi-function push button switches were accompanied by a video screen which depicted the switches and the functions of the switches, which varied depending upon the system selected by the driver. In addressing whether the identification for the push button considered "on or adjacent" to the controls, we stated:

The answer is yes. The video screen that shows the images corresponding to the switches, and identification for the switches, is directly above the switches. Although there is a small unavoidable break between the video screen and the switches, no control, display or other potential source of distraction appears between the video screen and switches. For these reasons, we conclude that the proximity between the switches and the images/identification is so close that they are "adjacent" to each other.

By contrast, for your proposed design, there is no such close proximity between the combination multi-function switch/rotary dial and the related video display. Therefore, they cannot be considered to be "adjacent" to each other.

We note that by implication in our June 8, 2000, letter and as explained further in a February 28, 2001, letter to Mazda, we adopted an especially broad interpretation with respect to the identification of the "extreme positions" of controls that regulate a function over a quantitative range, as applied to controls which rotate indefinitely. We explained our position as follows:

Standard No. 101 does generally require that identification of controls be on or adjacent to the controls. Otherwise, there would be no logical connection between the identification and the control. This is why we made it clear, for the push button switches we addressed in our June 8, 2000, letter, that there needed to be close proximity between the switches and the images/identification.

For traditional controls that regulate a function over a quantitative range, e.g., dials, levers or buttons that move only within a limited range, it makes obvious sense to require identification of the extreme positions to be located on or adjacent to the controls. This is the logical way for a driver to be able to identify the extreme positions.

However, such a requirement does not necessarily make sense for new kinds of controls that regulate a function over a quantitative range, but do not have extreme positions in the traditional sense. For example, dials that can be rotated indefinitely are sometimes associated with a visual display. In a sense, the control consists of both the dial and the display. While it is obviously important that identification of the dial itself be located on or adjacent to the dial, there is no extreme position (in the traditional sense) to identify. And, whether for the system we addressed in our June 8, 2000, letter or for your system, we see no reason to interpret the standard to require the "means by which the driver can know when the extreme positions have been reached" (i.e., the relevant displays) to be on or adjacent to such dials.

We note, however, that if the relevant displays are separated from the dials, there must be sufficient independent identification for both the dial and the separate display that the driver can understand both items. Our review of your proposed design does not indicate any problem in this area. For example, the dial for the fan control is marked with the fan symbol to indicate function and (+) (-) signs to indicate how fan speed is increased and decreased, and the display for fan speed shows the fan symbol to identify function and a triangle to indicate relative speed.

Your system, however, is not covered by this interpretation. It involves controls other than ones which regulate a function over a quantitative range, e.g., the selection of AC subsystem functions. These controls are akin to the switches and the images/identification we discussed in our June 8, 2000, letter and which we concluded were subject to the requirement that identification be provided on or adjacent to the control. Also, in using the multi-function switch/rotary dial for controlling the fan over a quantitative range, there isn't sufficient independent identification for both the dial and the separate display. I also note that the permanent labeling of the combination multi-function switch/rotary dial with the terms "A/C, SET, Radio and BC," is inaccurate, in the sense that that labeling does not apply in situations where the driver has already selected a particular function by means of one of the four toggle switches. While correct identification is provided by means of the non-adjacent display, the actual control is mislabeled at that time.

As is apparent from reading a number of our prior interpretations of Standard No. 101, we have sought to interpret it in a broad manner in light of new technology. There is a limit, however, to how much we can do by interpretation as opposed to conducting rulemaking to facilitate the use of new technology. We recognize that the use of your system may be intuitive to persons who are familiar with computers and/or video games, since use of the multi-function switch/rotary dial is analogous to the use of a computer mouse or video game controller. However, given the current language of Standard No. 101, if a system such as your proposed design is to be permitted, where identification of controls is separated from the controls themselves, it must be done through rulemaking.

We understand that the Alliance of Automobile Manufacturers (which includes Porsche) has recently submitted a petition for rulemaking on this subject and we plan to address this issue further in that context.

If you have any further questions, please feel free to contact Dorothy Nakama of my staff at (202) 366-2992.

Sincerely,

John Womack
Acting Chief Counsel

ref:101
d.1/10/02





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¹ Mr. Kardos orally asked for confidential treatment of the three pages. Mr. Kardos agreed that Porsche would not consider a written description of the computer image or the other two pages as confidential.

ID: perea

Gilbert A. Perea, State Transportation Director
New Mexico Department of Education
School Transportation Unit
Education Building
300 Don Gaspar
Santa Fe, NM 87501-2786

Dear Mr. Perea:

This responds to your letter asking about the modification of your large school buses (school buses with a gross vehicle weight rating (GVWR) of over 10,000 pounds) by the installation of a new seating system that has an integral lap and shoulder belt system. I regret the delay in responding.

You explain that an equipment manufacturer, Busbelts Development Corporation (BDC), has been promoting its seating systems for school buses in New Mexico. You enclose photographs of the BDC product and copies of material provided by BDC. The seating systems appear to be standard school bus bench seats that have been modified to incorporate an integrated lap and shoulder belt system. The shoulder belt portion of the system attaches to the top of the school bus seat back. You state that Mr. Gary H. Murphy of BDC has informed you that "all of the required tests have been completed to conform to applicable [FMVSSs] in a National Highway Traffic Safety Administration certified and approved testing Lab." ⁽¹⁾ Further, a BDC brochure states that its system "enhances and complies with compartmentalization . . . ."

In a telephone conversation with Dorothy Nakama of my staff, you asked that we respond to four questions. Each question concerns the safety of the BDC system and whether a school bus that has had its original seats replaced with the BDC seating systems would continue to meet Federal Motor Vehicle Safety Standard No. 222, School Bus Passenger Seating and Crash Protection. Our answers are provided below. In addressing those questions, it might be helpful to have some background information concerning seat belts on school buses.

In response to the Motor Vehicle and Schoolbus Safety Amendments of 1974, we issued a number of safety standards under our Vehicle Safety Act (49 U.S.C. 30101 et seq.) to improve protection to school bus passengers during crashes. One of these standards was Standard No. 222, which provides for passenger crash protection through a concept called "compartmentalization." Prior to issuance of Standard No. 222, we found that the school bus seat was a significant factor contributing to injury. We found that seats failed the passengers in three principal respects: by being too weak; too low; and too hostile. In response, we developed requirements to improve the performance of school bus seats and the overall crash protection of school buses. Those requirements comprise the "compartmentalization" approach we adopted for providing high levels of crash protection to school bus passengers.

Compartmentalization is directed toward ensuring that passengers are surrounded by high-backed, well-padded seats that both cushion and contain the children in a crash. If a seat is not compartmentalized by a seat back in front of it, compartmentalization must be provided by a restraining barrier. The seats and restraining barriers must be strong enough to maintain their integrity in a crash yet flexible enough to be capable of deflecting in a manner which absorbs the energy of the occupant. They must meet specified height requirements and be constructed, by use of substantial padding or other means, so that they provide protection when they are impacted by the head and legs of a passenger.

It is helpful to bear in mind the following highlights about compartmentalization:

1. Compartmentalization provides effective occupant crash protection, minimizes the hostility of the crash environment and limits the range of movement of an occupant, without using seat belts;
2. Compartmentalization ensures that high levels of crash protection are provided to each passenger independent of any action on the part of the occupant; and,
3. Seat belts are needed on passenger cars and other family vehicles and on small school buses (school buses with a GVWR of 10,000 pounds or less) because the crash pulse, or deceleration, experienced by the lighter vehicles is more severe than that of larger vehicles in similar collisions. Large school buses are inherently safer vehicles because they are larger and heavier than the vast majority of the other vehicles on the road. In addition, occupants in large school buses sit above the forces that are typically imparted to the bus by smaller impacting vehicles during a crash. The training and qualification requirements for school bus drivers and the extra care taken by other road users in their vicinity add to the safety of school buses.

With this background in mind, we now turn to your questions.

1. Does the Busbelts Development Corporation's integrated shoulder belt and/or occupant restraint system meet all applicable FMVSSs?

Because the BDC system is an item of equipment that is sold separately from a school bus, there are almost no safety standards that directly apply to it. Our safety standards for school buses apply to new, completed vehicles, not to separate components systems such as the bench seat and integrated belt system. As such, Standard No. 222 does not apply to the BDC product, assuming the product is sold in the aftermarket and is not sold as part of a new school bus. Our standard for seat belt anchorage strength (Standard No. 210) also applies to new, completed vehicles. A representation that a product meets crash protection standards that do not apply is misleading.⁽²⁾

The only safety standard that applies to the aftermarket product is Safety Standard No. 209, Seat Belt Assemblies. Standard No. 209 specifies strength, ease-of-use and other requirements for seat belt webbing, buckles, and other components. Section S4.1(c) of Standard No. 209 requires that a lap-and-shoulder belt system (a "Type 2 seat belt assembly") must provide upper torso restraint without shifting the pelvic restraint into the abdominal region. Some of the photographs you provided depict children wearing the Type 2 seat belt with the lap portion in the middle of their bodies, above the pelvic region. Placement of the lap portion of the seat belt in the abdominal area of a passenger is prohibited by S4.1(c). A belt positioned over the abdominal area will load the abdomen in a crash, resulting in a greater likelihood of injury to the abdomen and surrounding organs.

It appears from some of the photographs that the lap belt is pulled on to the abdominal area of some of the children by a device that adjusts the positioning of the lap and the shoulder belts on small children. We refer to these types of devices as "belt positioning devices." Due in part to our concerns about positioning a lap belt over a child's abdominal area and about how some devices introduce excessive slack into the shoulder belt, we recently began a rulemaking action to regulate these devices. We issued a notice of proposed rulemaking (NPRM) proposing to require belt positioning devices to be labeled with a warning not to use them with children under a certain size (e.g., a child smaller than the average 6-year-old), and not to have the lap belt positioned over the child's abdomen. A copy of our NPRM is enclosed for your information.

If the BDC system were installed on new school buses, the vehicle would have to meet Standard No. 222 and the other school bus standards with the product installed. Without testing a vehicle, we cannot make a positive determination of whether the standard could be met with the product installed. However, as explained below, we believe that a new school bus may not be able to meet the standard with the seating system. We have other safety concerns as well, apart from whether the requirements of Standard No. 222 could be met.

2. Would retrofitting a school bus with the Busbelt integrated shoulder belt system make the school bus no longer meet Standard No. 222?

We believe it is possible that the incorporation of a shoulder belt into existing school bus seats would reduce the benefits of compartmentalization. As we explained in the background section, Standard No. 222's compartmentalization requirements rely on the school bus seat backs to help cushion and contain the occupants in a crash. Each seat back protects not only the occupant of that seating position, but also the occupant seated rearward of that seating position. If a shoulder belt were attached to a school bus seat back, the belt may prevent the seat back from deflecting forward in the manner required by S5.1.3 of Standard No. 222 to protect the rearward passenger. In other words, in a crash the seat back will not perform in a manner that would provide protection to an unrestrained passenger.

Even if the seat back deflects as required by Standard No. 222, it is possible that compartmentalization could be compromised by the attachment of a shoulder belt to a school bus seat back. These relate to possible problems resulting from a load application of two different forces on the school bus seat in a severe crash. In a forward collision, a passenger restrained by the shoulder belt would load the belt at an earlier point in time than the point at which the seat back is impacted by an unbelted occupant seated directly rearward of the seat. The forward force on the seat back from the shoulder belt would tilt the seat back forward prior to the impact of the rearward unbelted occupant against the seat back. The unbelted occupant would ramp up the tilted seat back in the crash, rather than be contained in what had been a compartmentalized space. That occupant not contained in the compartment would be at greater risk of injury due to possible ejection and/or impacts against hard or unforgiving surfaces.⁽³⁾ Both the head of the unrestrained passenger and the head of the restrained passenger could impact, possibly injuring both children.

The head of the unrestrained passenger could impact the head of the restrained passenger, resulting in possible injury to the two passengers.

Compartmentalization could be compromised in other ways as well. The seat backs of school buses must meet head protection requirements specified in S5.3.1. The performance requirements in S5.3.1 generally lead manufacturers to pad their seat backs with energy-absorbing foam and to ensure that there are no hard structures in the seat back that can cause head injuries to the passenger rearward of the seat back in a crash. Anchoring a shoulder belt to the seat back may require the installation of rigid components, which may cause the seat back to no longer meet S5.3.1.

The seat backs must also meet leg protection requirements specified in S5.3.2 of Standard No. 222. The requirements are generally met by padding and other measures to protect passengers' knees as they impact seat backs in a crash. Apparently BDC modifies the school bus seat by installing a cross bar and D-ring structure to mount the belts and by installing a steel lap and shoulder belt retraction system within the seat back. The knee and leg protection requirements of the standard must continue to be met with the retrofitted components in the seat back.

In addition to the issues discussed above, care should be taken to ensure that passengers will not be entangled in the shoulder belt webbing material in a crash. Shoulder belts that have a considerable amount of webbing around the head and neck area of children pose a risk of strangulation or other neck injuries.

For the above reasons, we believe that a school bus seating system with an integrated lap and shoulder belt system might reduce the crash protection provided by compartmentalization. ⁽⁴⁾ There is limited information about how an integrated lap and shoulder belt system on a school bus seat would perform in a crash or affect the current safety of school buses. We are undertaking a comprehensive school bus safety research program to evaluate better ways of retaining occupants in the seating compartment. As part of that program, we will be looking into possible ways of redesigning the school bus seat as well as integrating a lap and shoulder belt into the seat that is compatible with compartmentalization. Also, we plan on conducting some research on extra padding, not only for the seat itself but also for the bus side wall. Information from this research program will help researchers better understand and develop the next generation of occupant protection systems for school buses.

3. Would retrofitting a school bus with an integrated shoulder belt system make inoperative the bus's compliance with FMVSS 222?

Section 30122 of our statute prohibits a motor vehicle manufacturer, dealer, distributor, or repair business from installing any modification that "make[s] inoperative any part of a device or element of design installed on or in a motor vehicle in compliance with an applicable motor vehicle safety standard . . . ." Any person in the aforementioned categories that makes inoperative the compliance of a device or element of design on the vehicle would be subject to fines of up to $1,100 per violation and to injunctive relief.

The compartmentalization requirements of Standard No. 222 include requirements that a protective seat back must be provided to protect an unrestrained passenger. We believe that replacing a school bus seat with a seating system that has a torso belt is likely to make inoperative an element of design installed as part of the compartmentalization concept. We are concerned about the continued compliance of the bus with Standard No. 222's seat deflection and head and leg protection requirements. We are concerned about the ability of the bus to continue to provide required crash protection to children regardless of whether a belt is used.

4. If a school bus were retrofitted with the Busbelt integrated shoulder belt system, will the school bus continue to meet all applicable Federal motor vehicle safety standards?

Compartmentalization is intended to restrain passengers in a crash regardless of whether they buckle up. A torso belt may reduce that level of safety to an unbelted passenger. As previously stated, we have concerns about a product that might interfere with the ability of a school bus to protect unbelted occupants. We will be evaluating integrated lap and shoulder belt systems in our school bus research program. The program will provide information that will help us better assess the merits, costs and feasibility of having integrated seat belts on school buses.

Before closing, we wish to address a statement that BDC made in its marketing literature in support of seat belts on large school buses. BDC states that its "dynamic test data" shows that in a 30 mile per hour (mph) school bus crash, an unbelted occupant "suffered fatal head injuries (2000 HIC level) when his/her head came in contact with a standard school bus seat." These test data apparently result from computer simulations conducted for BDC. The data do not reflect the data we have obtained in actual crash testing of school buses. Actual crash test data from a 30 mph barrier crash conducted by NHTSA indicate that HIC measurements recorded by calibrated test dummies are all well below the 1,000 threshold level.

On a final note, we would like to point out that many of your newer school buses may still be under the school bus manufacturer's warranty. Before you decide to retrofit any school bus with any seat belt, it may be prudent for you to share BDC's information with the school bus manufacturer, and request a determination whether the school bus manufacturer will continue to honor warranties if the BDC seat belts are placed on school buses.

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

Sincerely,
Frank Seales, Jr.
Chief Counsel
Enclosure
ref:222
d.10/28/99

^1. We note that this statement is misleading. NHTSA does not "certify" or "approve" test laboratories or facilities to conduct compliance testing or for any other purpose.

^2. Regardless of whether a safety standard applies to the product, our statute at 49 U.S.C. 30120 requires manufacturers of motor vehicles and motor vehicle replacement equipment to provide remedies if it is determined their products have safety-related defects. If it were determined that the seating systems had a safety-related defect, the manufacturer would have to notify all purchasers and repair or replace the defective item without charge.

^3. Another concern associated generally to the use of lap and lap and shoulder belts on large school buses relates to the potential for seat failure resulting from combined stresses exerted simultaneously or in close succession on a school bus seat by: (1) the belted occupant of the seat, where the seat belt is attached to the seat frame; and (2) an unbelted occupant, seated directly rearward of the seat, impacting the seat back. In a severe crash, the combined force applications on a particular seat resulting from a belted occupant and an unbelted occupant in the rearward seat could increase the likelihood of seat failure or seat deformation. We do not believe that school buses are frequently involved in the type of severe frontal crashes where this phenomenon is likely to occur. However, there is a risk that compartmentalization could be compromised in this circumstance.

^4. The concerns discussed above relating to the compatibility of compartmentalization with existing designs of lap and shoulder belts also apply to the situation where a belt system is retrofitted to existing school bus seats (i.e., where the original bench seat is modified but not replaced).

ID: ntea2.ztv

Mr. Michael Kastner
Director of Government Relations
National Truck Equipment Association
1300 19^th Street, Fifth Floor
Washington, DC 20036-1609

Dear Mr. Kastner:

This is in reply to your letter of April 22, 2003, asking 20 questions relating to the early warning reporting (EWR) regulations issued by this agency (Subpart C, 49 CFR Part 579). By letter dated April 11, 2003, we previously answered several other questions you asked about these regulations. Your questions, and our responses, are as follows:

"1) For manufacturers of fewer than 500 vehicles per year, is NHTSA requiring a report for each quarter when there are no fatalities?"

No.

"A) If not, are low volume and equipment manufacturers still required to submit a request for an m [User] ID and password when they have no fatalities to report?"

No.

"B) Is it true that low volume and equipment manufacturers can submit reports for fatalities in writing to NHTSA?"

No. "Low volume" and equipment manufacturers eligible to report under Section 579.27 must submit reports of claims and notices involving deaths in one of the two ways specified under Section 579.29(a)(2), either by submitting them to the Office of Defects Investigations (ODI) early warning repository through the use of templates available through NHTSAs internet home page, or by filling out an interactive form on ODIs early warning website.

"2) Is there another method for requesting and receiving a [User] ID and password, and also the designation of manufacturer's contacts, besides writing to the Director or [sic] ODI, as required under Part 579.29?"

No.

"A) If [a request for] an ID and password is submitted in writing within the required period, and it is not received prior to the due date for the reports, what should a manufacturer do?"

ODI will attempt to provide user IDs and passwords well before the due dates for reporting. If a manufacturer does not receive that information by the due date, it should notify ODI which will take appropriate action. We would then expect reports to be submitted within 10 working days after the manufacturer receives the User ID and password.

"B) Also, if a low volume or equipment manufacturer has no fatalities to report, are they still required to submit a request for an ID and password and the designation of the manufacturer's contacts?"

No.

"3) Part 579.29 - Manner of Reporting, indicates that the required reports must be submitted to NHTSA's early warning data repository identified on NHTSA's Internet home page (www.nhtsa.dot.gov). As of April 21, 2003, there does not appear to be any reference to the repository or to early warning reporting in general, including the Excel templates on the home page. When will the repository, Excel templates and any other information be listed on the home page?"

The NHTSA home page contains a link to "Early Warning Reporting (EWR) Requirements" under the list of "Popular Information."That link will take the viewer to templates and other information which are available now for downloading. Templates may be updated, as necessary. Manufacturers are encouraged to check the website periodically for any such updates.

"A) Also, Part 579.29 indicates that manufacturers of fewer than 500 vehicles per year and equipment manufacturers can either submit reports to the data repository "or by manually filling out an interactive form on NHTSA's early warning web site." Where is this located, and are there instructions/examples for using this interactive form? (See question 1 regarding low volume/equipment mfg.)"

There will be a link from the NHTSA website. We will also provide an information manual on how manufacturers are to report to ODI.

4) [Answered by the Final Rule published April 15, 2003, 68 FR 18136]

"5) For manufacturers that have production of 500 or more vehicles for the first time in the 2003 calendar year or after, but not in any prior year, what would be their reporting obligations?"

"A) If such a manufacturer reaches a production level of 500 for the very first time in the 4th quarter of a given calendar year, are they then responsible for submitting reports for the 4th quarter and each of the prior 3 quarters of that calendar year?"

In this situation, a manufacturer would submit reports under Section 579.27 for the first three calendar quarters, and, for the fourth quarter, reports under Sections 579.21-24, according to the type of vehicle manufactured.

"B) If so, would such a manufacturer also be required to submit a one-time historical report?"

The one-time historical report is due only on the date specified in Section 579.28(c), and would not be required from a manufacturer that begins to submit reports under sections 579.21-.24 at a subsequent date.

C) [Moot]

"D) How are the reporting obligations for the quarterly reporting and one-time historic report determined for manufacturers whose production fluctuates above and below 500 vehicles per year for the previous 2 or more years?"

The EWR regulations provide that if a manufacturers aggregate production of a vehicle type "during the calendar year of the reporting period or during each of the prior two calendar years is 500 or more," the manufacturer is not eligible to report under Section 579.27 for that type, and must provide quarterly reports and a one-time historical report in accordance with Section 579.28(c). See, e.g. the introductory text of Section 579.22.

"6) When acting as an intermediate stage manufacturer, how are vehicles that are modified treated? Are they counted for production?"

As we explained in our letter of April 11, 2003 to you, for vehicles manufactured in two or more stages, only the manufacturer of the completed vehicle is required to report as a vehicle manufacturer. Incomplete vehicles, including vehicles produced by intermediate manufacturers, are deemed to be equipment, and information about them need not be reported under Sections 579.21-.24. However, we recognize that some light vehicle manufacturers may choose to include information about their incomplete chassis along with their other vehicles for which they report under Section 579.21. The final rules definition of "type" includes "incomplete vehicle" as a category of "light vehicle." Therefore, such a manufacturer would report production numbers and other data for incomplete vehicles that will be light vehicles when completed.

"A) Are intermediate stage manufacturers considered to be equipment manufacturers, since they are not completing the incomplete vehicle?"

See prior answer.

"7) Production Number reporting - do manufacturers of vehicles built in 2 or more stages count both the vehicles that they complete from incomplete chassis and the number of vehicles that they alter? The OEM of the completed vehicles that are altered, such as a pickup truck with the box removed and a new body added, would already have counted the completed pickup in their production numbers, so would the alterer need to count it as well after their manufacturing operations?"

Yes. A manufacturer must include in its production numbers any vehicle to which it attaches, or should attach, a certification under Part 567, either as its original manufacturer or as its alterer.

"A) Are used vehicles that are modified counted toward production, warranty claims, etc. since the company performing this is technically not a "manufacturer" at this point, but a repair facility? Ex. a used chassis that has a new body installed on it."

As a general rule, a used chassis with a new body installed is not considered a new vehicle, and no reporting is required under the EWR regulations. In addition, modifications of used vehicles, with two exceptions, are insufficient to create a new vehicle subject to NHSTA regulations that apply to new vehicles. Those two exceptions are based upon the extent of the modifications. See Sections 571.7(e), Combining new and used components, and 571.7(f), Combining new and used components in trailer manufacture. These provisions may be relevant to the operations of some NTEA members.

"If so, what model year is used for reporting, the original model year of the vehicle or the year in which it was modified?"

If a truck or trailer is considered newly manufactured under Sections 571.7(e) or (f), the model year would be that of the year of the vehicles modification, and reporting would be required under the EWR regulations in the same manner as other new motor vehicles. If a truck or trailer is not considered newly manufactured under these sections, no reporting is required. This moots your remaining questions under "A."

"B) Along the same lines, under Part 571.7(e) and (f), since certain vehicles are excluded from Subpart B, does it make a difference whether a vehicle that is modified after the first retail sale is considered newly manufactured or not with regard to being counted toward production. For example, if it is not newly manufactured is it

accounted for, and if so how? If it is considered newly manufactured is it accounted for, and if so, how? If not, what about when a new VIN is issued? If so, for a vehicle with a new VIN, what model year would be used to designate it?"

See our answers to questions 7 and 7 A) above.

"C) Also under Part 571.7(c), since military vehicles are excluded from Subpart B, are vehicles and/or equipment produced and sold to the US Armed Forces counted toward production and included in reporting of warranty claims, consumer complaints, field reports, etc.?"

The exclusion of Section 571.7(c) is limited to compliance with the Federal motor vehicle safety standards (FMVSS) and does not extend to other NHTSA regulations applicable to motor vehicles. We would expect manufacturers of vehicles that they would otherwise be required to certify, such as staff (passenger) cars and some trucks, to submit reports under the EWR regulations in the same manner as manufacturers of non-military motor vehicles certified by their manufacturers.

"D) Vehicles modified for mobility of the disabled are allowed to use the exemption from the make inoperative prohibition under which the first purchase of a vehicle in good faith for purposes other than retail is defined as the point at which the seller and the end user enter into a sales contract that identifies a specific vehicle to be delivered in the Final Rule of February 27, 2001. Are vehicles that are modified under this provision counted for production purposes?"

Part 595 only applies to modifications made after first sale. Therefore, they will be counted for EWR purposes by their original manufacturers, and not by the modifier.

"8) What are the model years of production volumes that need to be reported for the one-time historic and on-going quarterly reports? The July 10, 2002 (sic) indicates that production volumes from 1994 to the present must be reported for each year of the one-time report and then a moving window of the current model year plus the past 9 model years for the quarterly reports (i.e. is it provided for every year starting with 1994 and carries forward so there are always 9 years plus the current year shown on the quarterly reports?)."

For the quarterly reports, the reports must cover all vehicles "manufactured during the reporting period and the nine model years prior to the earliest model year in the reporting period." See, e.g., the introductory text of Section 579.22. For the one-time historic report, each of the twelve reports must cover claims and field reports applicable to vehicles back to model year 1994.

"A) Can you please give examples of what production information should be submitted for both the one-time historical report and the quarterly reports?"

The production information that is required for quarterly reports and the one-time historical report by manufacturers is described in the introductory text of Sections 579.21- 579.24, and subsection (a) of each of these sections. See the production template at NHTSAs EWR website for an example of the information that is to be submitted.

"B) Also, are the one-time historical reports to be produced utilizing the quarterly spreadsheet templates?"

Manufacturers should use the templates for the production numbers and the number of warranty claims and field reports for their one-time historical report.

"If so, what would be the file name strategy vs. the quarterly reports?"

ODI is developing a "naming convention" which will be covered in an early warning reporting manual that will be issued in the near future.

"9) Can the one-time historical report for warranty claims, warranty adjustments and field reports be submitted electronically?"

The one-time historical report should be filed electronically in the same manner as quarterly reports under Section 579.29(a).

"10) The Final Rule published on January 28, 2003 indicates that NHTSA would allow electronic submission of foreign defect reports under Part 579.11, so that they may be transferred by email or fax. Does this apply to other documents required under Part 579.11, specifically the annual list of substantially similar vehicles?"

Yes. Moreover, NHTSA is developing a template for these submissions.

"11) Clarification - are manufacturers responsible for reporting warranty claims, consumer complaints, etc. for equipment that was installed after the first retail sale by someone or themselves?"

We assume that the last phrase of this question meant to say "by someone other than themselves." Vehicle manufacturers need not report warranty claims, etc. under those circumstances. However, they would have to report a claim or notice about a death or injury regarding their product, even if they believe the claim arose out of the performance of an aftermarket addition.

"12) Are manufacturers responsible for reporting warranty claims, consumer complaints, etc. for altered vehicles? If they don't count toward the alterer's production count, it would seem then that they should be excluded from reporting in any of the other categories not involving deaths or injuries."

Alterers are responsible for reporting on the vehicles they alter. If an alterer has certified, or was required to certify, 500 or more vehicles per year within a specific vehicle category, it is required to submit production numbers, the number of warranty claims, consumer reports, etc.

"13) What are the rules for forwarding information that is received from other manufacturers in regards to external communications? Do engineering bulletins that are produced by another manufacturer and sent to more than one other manufacturer, dealer, customer, etc. and then redistributed by one of the recipients who also happens to be a manufacturer, have to be sent to NHTSA by the manufacturer recipient who re-distributes the bulletin/communication?"

Yes, they must do so under Section 579.5, even though the information may also be submitted by the original issuer of the document.

"14) Is there a hierarchy of reporting categories for incidents that fit more than one reporting category? E.g. how would an incident that starts as a consumer complaint that turns into a warranty claim be logged? Both as a consumer complaint and warranty claim or just one of them?"

The incident would be reported both as a consumer complaint and as a warranty claim.

"15) Make - Is it acceptable to use the chassis manufacturer's designation for the make and model?"

No. Our system will not accept submissions that attempt to specify multiple, unrelated manufacturers producing the same make, model, and model year vehicle. For EWR purposes, a final stage manufacturer can create a pseudo make by combining the final stage manufacturers name with the chassis make, such as Widget Ford, Widget Dodge, Widget Volvo, etc., used in conjunction with the appropriate model application. If a single body is installed on various chassis of a single manufacturer, the model designation would be modified to reflect the chassis. From the example above, Widget Ford becomes Widget Ford 150, Widget Ford 250, etc.

Whichever way a final stage manufacturer identifies a product in its production data, that product identification must be applied throughout each quarterly report (i.e., Death, Injury, Warranty, Consumer Complaints, etc.) as well as in all future quarterly reports.

"16) What constitutes structure"?

For purposes of the EWR regulations, "Structure" is defined in Section 579.4(b).

"A) If truck bodies are considered structures, are all components of the truck body considered to be part of the structure for warranty claims, consumer complaints, etc.?"

Yes.

"B) If yes, what about latch mechanisms on the body compartments-would they be categorized under latch-17?"

Yes. "Latch," as defined in Section 579.4(b), applies to latching devices on "doors" of all exterior body compartments.

"C) Further, are there any components of truck body that would not be reportable for warranty claims, consumer complaints, etc.?"

A manufacturer that has certified a completed truck is not required to report the number of property damage claims, consumer complaints, warranty claims, and field reports, involving a body component that is not considered "structure." However, the manufacturer would be required to report incidents involving death or injury with respect to such a component, using Code 98.

"i Clarification - are paint runs or dents or scratches reportable as warranty claims, consumer complaints, etc.?"

No. These do not relate to any systems or components of a vehicle specified in the regulations.

"ii What about equipment that is attached to or stored within a body? How would they be classified? Examples: ladder racks, generators, welding equipment, cranes, tool boxes, liquid storage tanks, sprayers, etc."

Equipment attached to the exterior of a body could create a safety problem if it detaches from the body while the trailer is in motion should be classified as "structure." Please note that the definition of "structure" includes mounting elements such as brackets and fasteners. On the other hand, equipment stored within a trailer is normally related to the structure of the vehicle. However, an incident that occurs that is due in whole or in part to the equipment, such as a fire or an incident involving a death, would be reportable.

"(a) And, would it make a difference if the vehicle to which the equipment is attached was completed from an incomplete vehicle vs. an altered vehicle with the same equipment?"

No.

"17) Would the definition of latch include locking/latching mechanisms that are located internally to a vehicle, such as on the inside of a second unit body of a truck or the interior of a trailer?"

No. The definition of "latch" relates only to a vehicles exterior doors.

"18) Would power take-off (PTO) issues be classified?"

"A) If so, how?"

"B) What about transmission mounted vs. engine mounted PTO's? Would the mounting location change the classification?"

Claims and other items involving PTOs would be reportable in the context of how they affect the vehicle or roadway safety; e.g., if a PTO failure causes the engine to seize, then it would be reported in the "Engine and Engine Cooling" category; if a hydraulic line to a PTO ruptures causing a fire, it would be reported under "Fire;" if there is an electrical problem as a result of a failure or problem with a PTO, then it would be reported under "Electrical System."

"19) In regards to the one-time historical report, the Production Information of Part 579.22 indicates that "[i]f the service brake system in a vehicle is not readily characterized as either hydraulic or air, the vehicle shall be considered to have hydraulic service brakes." Brake system information is not readily accessible in the records of many final-stage manufacturers, however, GVWR information typically is available. Given this, could manufacturers base their brake system designations on GVWR for the lack of any records to indicate otherwise? Some companies manufacture vehicles that are primarily under 20,000 Lbs. GVWR while others primarily manufacture Class 8 (over 33,000 Lbs. GVWR) vehicles. The guidance provided would be proper for assuming a hydraulic brake system for vehicles that are under 20,000 Lbs. GVWR, but not for vehicles that are over 33,000 Lbs. as they are predominately equipped with air brakes."

With respect to the service brake issues in the one-time historic report, the manufacturer should provide the warranty claim counts, as they are available. If the counts are not divided by type of service brake system, the approach suggested by NTEA is acceptable except that to prevent any gaps, vehicles with a gross vehicle weight less than 30,000 lbs. GVWR should be filed in Service Brake System, Hydraulic, and all others in Service Brake System Air.

"20) Part 573.5(a) states that [e]ach manufacturer of a motor vehicle shall be responsible for any safety-related defect or any noncompliance determined to exist in the vehicle or in any item of original equipment. Does this mean that a final-stage manufacturer would be required to perform a recall on vehicles that it completes where the defect or noncompliance lies within the incomplete chassis upon which the completed vehicle is based?"

Recall responsibility rests primarily with the manufacturer that certified the completed vehicle. See Sections 568.7, 571.3, 573.5. If the final stage manufacturer certified the vehicle, then it is primarily responsible for remedying any safety-related defect or noncompliance in the vehicle, including the portion of the vehicle manufactured by the incomplete vehicle manufacturer. If an incomplete vehicle manufacturer or intermediate manufacturer certified the vehicle, then it is responsible for remedying the safety defect or noncompliance regardless of the manufacturer of the part or system that is the subject of the recall. Of course, the final stage manufacturer could seek indemnification or other redress from the incomplete vehicle manufacturer.

"A) Further, are incomplete vehicles considered to be "original equipment" for reporting purposes?"

See answer to Question 6.

If you have further questions, you may call Taylor Vinson of this Office (366-5263).

Sincerely,

Jacqueline Glassman
Chief Counsel

ref:579
d.5/14/03

ID: 15-005347 BMW Brake Transmission Shift Interlock v5