ID: nht88-3.10

TYPE: INTERPRETATION-NHTSA

DATE: 08/19/88

FROM: ERIKA Z. JONES -- CHIEF COUNSEL NHTSA

TO: DOUGLAS H. BOSCO -- HOUSE OF REPRESENTATIVES

TITLE: NONE

ATTACHMT: LETTER DATED 06/16/88, TO ERIKA Z. JONES, FROM DOUGLAS H. BOSCO; LETTER DATED 08/03/87 TO DOUGLAS H. BOSCO FROM ERIKA Z. JONES; LETTER DATED 06/09/88 TO JERRY K. YOST FROM L. F ROLLIN; LETTER DATED 03/28/88 TO C-MORE-LITE JERRYS SERVICE FROM DO N O. HORNING RE TEST REPORT NO 92606; 1988 LETTER TO ERIKA Z. JONES FROM JERRY SERVICE

TEXT: Dear Mr. Bosco:

This is in reply to your letter of June 16, 1988, with reference to your constituent Jerry Yost of Occidental. Thank you for enclosing our previous correspondence on Mr. Yost's C-More Light invention. This device is a relay which would allow a headlamp 's lower beam to remain in operation when the upper beam is activated. In my reply of August 3, 1987, I advised you that the Federal motor vehicle lighting standard explicitly prohibits simultaneous activation of upper and lower beams in four-lamp headl ighting systems other than the one we call Type F (S4.5.8 of 49 CFR 571.108 Motor Vehicle Safety Standard No. 108). I explained that our historical concern has been that the maximum candlepower limitations of the Federal standard might be exceeded.

In your latest letter, you have enclosed a copy of a test report by Industrial Testing Laboratories and a letter from the California Highway Patrol. You have asked the steps, if any, that Mr. Yost should take to market legally his device. The test repor t is intended to show that maximum candela will not be exceeded when the device is used in a four-lamp headlamp system. California advised that the device appeared legal to install on vehicles equipped with Type F headlamp systems, and that "this system is also permitted by California law as long as the photometric output is within the standards established for any other type of headlight. The ITL tests appear to show compliance".

We have reviewed the ITL test report, and find it indicative of the features and limitations of Mr. Yost's system. The test report shows a failure of the dual filament 2A1 lamp (second column from the left) at test point 4D-V where 3490 candlepower is m easured. Note the maximum limitation of 2500 candlepower at that test point (third column from the right, same line). Contrasted with this is an unusually low reading of 2540 candlepower for the same test point with the single filament 1A1 lamp (third column from the left) when up to 5000 candela is allowed (fourth column from the right). The net result, however, is that the combined maximum of 6030 candlepower (fourth column from the left) is well within the allowable 7500 maximum of Standard No. 10 8 (first column from the right). In essence, the test report indicates that the light at

2 test point 4D-V produced by the system under test does not achieve the balance contemplated by the standard, although the light at other test points meets the requirements of the standard.

While the test report indicates that a system using the lamps tested might conform to Standard No. 108, this was achieved by using what appear to be two lamps of moderate performance. The agency believes it likely that replacement headlamps for such a s ystem would more likely approach the maxima prescribed for 4D-V and other test points for Type 1A1 and 2A1 headlamps with the result that simultaneous operation of upper and lower beams would exceed the established limits. In other words, although an or iginal equipment headlighting system using the relay might meet Federal photometric specifications, there is no assurance that replacement lights would. Type F systems have been designed to preclude exceeding the maxima. Thus, our concern remains for l ighting systems using lamps other than Type F. The agency's views on simultaneous operation are discussed in further detail in a Federal Register notice published in 1986, a copy of which I enclose (Docket No. 81-11; Notice 14).

As I indicated before Mr. Yost's device may be legally installed as original or aftermarket equipment on any passenger car equipped with a Type F headlamp system. Use with any other original equipment headlighting system is expressly prohibited by Stand ard No. 108. As for aftermarket applications other than Type F, he should be aware of the statutory section (15 USC 13979(a)(2)(A)) prohibiting manufacturers, distributors, dealers, and motor vehicle repair businesses from rendering inoperative, in whol e or in part, any equipment installed in accordance with a safety standard if installation of the relay would result in a noncompliance with Standard No. 108.

We are providing a copy of this letter to the California Highway Patrol so that it may be aware of our views on this subject.

Mr. Yost and the agency share a common desire to improve foreground lighting, a subject currently under study at NHTSA. We appreciate his interest in motor vehicle safety.

ENCLOSURE

Sincerely,

ID: 2816o

The Honorable Douglas H. Bosco
House of Representatives
Washington, DC 20515

Dear Mr. Bosco:

This is in reply to your letter of June l6, l988, with reference to your constituent Jerry Yost of Occidental. Thank you for enclosing our previous correspondence on Mr. Yost's C-More Light invention. This device is a relay which would allow a headlamp's lower beam to remain in operation when the upper beam is activated. In my reply of August 3, l987, I advised you that the Federal motor vehicle lighting standard explicitly prohibits simultaneous activation of upper and lower beams in four-lamp headlighting systems other than the one we call Type F (S4.5.8 of 49 CFR 57l.l08 Motor Vehicle Safety Standard No. l08). I explained that our historical concern has been that the maximum candlepower limitations of the Federal standard might be exceeded.

In your latest letter, you have enclosed a copy of a test report by Industrial Testing Laboratories and a letter from the California Highway Patrol. You have asked the steps, if any, that Mr. Yost should take to market legally his device. The test report is intended to show that maximum candela will not be exceeded when the device is used in a four-lamp headlamp system. California advised that the device appeared legal to install on vehicles equipped with Type F headlamp systems, and that "this system is also permitted by California law as long as the photometric output is within the standards established for any other type of headlight. The ITL tests appear to show compliance".

We have reviewed the ITL test report, and find it indicative of the features and limitations of Mr. Yost's system. The test report shows a failure of the dual filament 2A1 lamp (second column from the left) at test point 4D-V where 3490 candlepower is measured. Note the maximum limitation of 2500 candlepower at that test point (third column from the right, same line). Contrasted with this is an unusually low reading of 2540 candlepower for the same test point with the single filament 1A1 lamp (third column from the left) when up to 5000 candela is allowed (fourth column from the right). The net result, however, is that the combined maximum of 6030 candlepower (fourth column from the left) is well within the allowable 7500 maximum of Standard No. l08 (first column from the right). In essence, the test report indicates that the light at test point 4D-V produced by the system under test does not achieve the balance contemplated by the standard, although the light at other test points meets the requirements of the standard.

While the test report indicates that a system using the lamps tested might conform to Standard No. l08, this was achieved by using what appear to be two lamps of moderate performance. The agency believes it likely that replacement headlamps for such a system would more likely approach the maxima prescribed for 4D-V and other test points for Type 1A1 and 2A1 headlamps with the result that simultaneous operation of upper and lower beams would exceed the established limits. In other words, although an original equipment headlighting system using the relay might meet Federal photometric specifications, there is no assurance that replacement lights would. Type F systems have been designed to preclude exceeding the maxima. Thus, our concern remains for lighting systems using lamps other than Type F. The agency's views on simultaneous operation are discussed in further detail in a Federal Register notice published in l986, a copy of which I enclose (Docket No. 81-11; Notice l4).

As I indicated before Mr. Yost's device may be legally installed as original or aftermarket equipment on any passenger car equipped with a Type F headlamp system. Use with any other original equipment headlighting system is expressly prohibited by Standard No. l08. As for aftermarket applications other than Type F, he should be aware of the statutory section (15 USC 1397(a)(2)(A)) prohibiting manufacturers, distributors, dealers, and motor vehicle repair businesses from rendering inoperative, in whole or in part, any equipment installed in accordance with a safety standard if installation of the relay would result in a noncompliance with Standard No. l08.

We are providing a copy of this letter to the California Highway Patrol so that it may be aware of our views on this subject.

Mr. Yost and the agency share a common desire to improve foreground lighting, a subject currently under study at NHTSA. We appreciate his interest in motor vehicle safety.

Sincerely,

Erika Z. Jones Chief Counsel

Enclosure

cc: Department of California Highway Patrol P.O. Box 942898 Sacramento, CA 94298-0001

ref:108 d:8/l9/88

ID: 2851o

The Honorable Don Montgomery
Senator, Twenty-First District
1218 Main
Sabetha, Kansas 66534-1835

Dear Mr. Montgomery:

Senator Kassebaum has asked me to respond to your February 12, 1988 letter to her. In your letter, you expressed concerns about a problem that has arisen in connection with using "van type buses designed to carry 10 or less passengers, without meeting all the requirements of a school bus." You state that there is a problem with using these vehicles to transport students because "federal law classifies the vans by weight and calls them twelve passenger vehicles, which calls for the van to meet all school bus regulations." As a solution, you suggest a change in Federal law might be appropriate to exempt the vehicles you describe "from the weight classification in determining how many passengers they would be capable of carrying."

As I understand your letter, there appears to be a misunderstanding about how Federal law operates with respect to school buses. There may also be a misunderstanding about whether it is a Federal or state definition that determines which vehicles may be used to transport school children in Kansas.

Under Federal regulations, there is no vehicle classification called "van." Instead, a passenger van is classified as either a "multipurpose passenger vehicle" (MPV) or a "bus," depending primarily upon its seating capacity. An MPV is a motor vehicle designed to carry a driver and 9 or fewer passengers, and either constructed on a truck chassis or equipped with features for off-road operation. A bus is a motor vehicle designed to carry a driver and 10 or more passengers.

Given these definitions, a van with 9 or fewer designated seating positions for passengers cannot, regardless of its weight or gross vehicle weight rating (GVWR), be a bus within the meaning of Federal law and regulation. (GVWR is the manufacturer's determination of a vehicle's loaded weight, i.e., the weight of the vehicle plus its designed capacity to carry people and cargo.) On the other hand, if a van is manufactured with 12 or 15 designated seating positions as you stated, then the vehicle is a bus. The number of passengers that such a van may actually carry on any given trip does not affect its classification as a bus.

If that vehicle is manufactured and sold to carry school children, then the vehicle is not just a bus, but a school bus. The National Traffic and Motor Vehicle Safety Act and regulations issued thereunder define a school bus in terms of (1) the vehicle's designed capacity for carrying people, and (2) the vehicle's intended use. More specifically, a school bus is a motor vehicle designed for carrying a driver and 10 or more passengers, and sold for transporting students to and from school or school-related events.

Gross vehicle weight rating (GVWR) is used in some safety standards to differentiate between smaller and larger school buses in the application of those standards. For example, Safety Standard No. 222, School bus passenger seating and crash protection, specifies one set of requirements for school buses with a GVWR of 10,000 pounds or less and another for those with a GVWR of greater than 10,000 pounds.

NHTSA's definition of school bus is used by the agency in regulating the manufacture and sale of new vehicles. New vehicles which are classified as school buses must meet the FMVSSs for school buses. A school bus manufacturer must certify that its vehicles meet all applicable Federal safety standards, and a commercial seller must sell only a complying vehicle as a school bus. Thus, a dealer who has a 12 or 15 passenger van that has not been certified as complying with the Federal school bus safety standards and sells that vehicle to a school district has, in all likelihood, violated the statutory prohibition against the sale of a noncomplying vehicle. (Title 49 of the Code of Federal Regulations (CFR) Part 571 contains the Federal safety standards applicable to school buses and other vehicles.)

However, this agency can not regulate the purchase or use of a vehicle, and consequently can not require a school district to purchase or use only those vehicles that comply with the Federal school bus safety standards. A State may do so by adopting appropriate vehicle definitions and requirements. To determine whether a local Kansas school district may purchase or use a noncomplying vehicle as a school bus, you must look to the laws of the State of Kansas, not the Federal laws and regulations.

On the other hand, I must emphasize NHTSA's position that a vehicle meeting Federal school bus regulations is the safest way to transport students, and encourage you to give this your most careful consideration.

I hope you find this information helpful. If you have further questions, please contact Joan Tilghman of my staff at this address or by telephone at (202) 366-2992.

Sincerely,

Erika Z. Jones Chief Counsel

cc: The Honorable Nancy Landon Kassebaum United States Senator Washington, DC 20515

ref:VSA#102#571 d:4/15/88

ID: GRACIA.LTR

Arthur H. Bryant, Esq.
Executive Director
Trial Lawyers for Public Justice
Suite 800
1717 Massachusetts Avenue, NW
Washington, D.C. 20036

Re: Gracia v. Volvo Europa Truck, N.V.,

N.D. Ill., Civ. No. 87-C-10005

Dear Mr. Bryant:

This is in response to your letter requesting that the United States file an amicus curiae brief with the Seventh Circuit in the above-referenced case, in which the District Court ruled that the plaintiff's claims are preempted by Federal law.

Although the National Highway Traffic Safety Administration (NHTSA) disagrees with both the result and the rationale adopted by the District Court, we have decided not to request the Department of Justice to file an amicus brief. A brief discussion of our views on this legal issue and the basis for our decision not to participate is set forth below.

As you are aware, NHTSA has consistently taken the view that, as a general matter, Federal motor vehicle safety standards (FMVSS) issued under 49 U.S.C. Chapter 301 preempt state common law actions only in very limited situations, which do not appear to apply here. Our views on this issue were most recently stated in the amicus curiae brief filed by the United States in Freightliner Corp. v. Myrick, 115 S. Ct. 1483 (1995).

To summarize, judgments under the common law can effectively create "standards" that would be expressly preempted by the "preemption clause" of Chapter 301, 49 U.S.C. 30103(b)(1),⁽¹⁾ if that clause stood alone. However, the "savings clause," 49 U.S.C. 30103(e),⁽²⁾ precludes a finding that suits seeking to recover damages on the basis of a manufacturer's failure to go beyond the requirements of a standard are expressly preempted. Moreover, such suits are impliedly preempted only in those relatively rare cases where the common law duty sought to be imposed on an auto manufacturer would create an actual conflict with a NHTSA safety standard, either because it would be impossible to comply with both state and Federal requirements or because the judgment would "stand as an obstacle to" or "frustrate the purpose of" federal law.

As we understand the facts in the Gracia case, the plaintiff was injured when she was "thrown through the windshield" of a model year 1986 Volvo truck that had a gross vehicle weight rating (GVWR) of more than 10,000 pounds and which was a "forward control vehicle." One of NHTSA's safety standards, FMVSS No. 212, "Windshield mounting," 49 CFR 571.212, imposes performance requirements for windshields of certain vehicles. The standard applies to passenger cars and to trucks with a GVWR of 10,000 pounds or less. It does not apply to certain types of trucks, including "forward control vehicles," even if they have a GVWR of less than 10,000 pounds.

The District Court concluded that NHTSA's decision to exclude forward control vehicles from the reach of the standard preempted plaintiff's product liability action. In our view, this conclusion is both factually and legally incorrect.

First, the focus by the parties and the court on the agency's rationale for excluding "forward control" trucks with a GVWR of less than 10,000 pounds from the reach of FMVSS No. 212 is misguided, since the GVWR of the vehicle involved in this crash was greater than 10,000 pounds. As with almost all of its safety standards, NHTSA did not explicitly consider applying FMVSS No. 212 to heavy trucks, regardless of whether they were forward control vehicles.

More generally, although we agree that a NHTSA decision not to regulate can preempt state common law actions, see Arkansas Elec. Co-op Corp. v. Arkansas Public Serv. Comm'n, 461 U.S. 375, 384 (1983), it will do so only where the intent to preempt is "clear and manifest." See Toy Mfrs. Of America, Inc. v. Blumenthal, 986 F.2d 615, 622-623 (2d Cir. 1992), citing Hillsborough County v. Automated Medical Lab., Inc.,

471 U.S. 707, 718 (1985). Here, there was no such intent, and none was indicated in any of the documents issued by the agency during its consideration of this standard.⁽³⁾

The regulatory materials quoted in the District Court's opinion indicate that the primary basis for NHTSA's exclusion of forward control vehicles (with a GVWR of less than 10,000 pounds) was a concern that it would not be "practicable" for such vehicles to comply with the existing standard.⁽⁴⁾ In no way did this reflect a NHTSA conclusion that efforts by maufacturers of forward control vehicles to reduce the possibility of ejections through the windshield (either by satisfying the performance requirements of the standard or through other means) would have an adverse impact on safety. Rather, it reflected a NHTSA determination that applying FMVSS No. 212 to such vehicles would not be appropriate in light of the statutory criteria for FMVSSs set out in Chapter 301.

A decision not to regulate on this basis does not in itself "preempt the field." In other words, while the exclusion of certain vehicles from the reach of FMVSS No. 212 relieves the manufacturers of those vehicles from any duties with respect to windshield retention under Chapter 301, it does not immunize those manufacturers from a duty of care that might be imposed under state law.⁽⁵⁾

Thus, as noted above, we believe that the District Court's opinion is incorrect. However, to our knowledge, this is the first case in which a court has improperly concluded that a NHTSA decision not to regulate an aspect of performance of certain vehicles preempts a state common law action seeking damages based on an alleged failure with respect to that aspect of performance. Therefore, in keeping with NHTSA's long-standing policy of minimizing its involvement in private tort litigation, we believe that it would not be appropriate to participate formally in this case. In the unlikely event that this erroneous view of the scope of "negative" Federal preemption proliferates in the future, the agency may decide to participate in a subsequent case.

Thank you for bringing this matter to our attention.

Sincerely,

John Womack

Acting Chief Counsel

cc: Wayne F. Plaza, Esq.

Bruce R. Pfaff, Esq.

ref: 103(d)#108(k)

NCC-10:KWeinstein:August 9, 1996; revised:August 16, 1996

Printed: August 26, 1996 (cyb)

1. "When a motor vehicle safety standard is in effect under this chapter, a State . . . may prescribe or continue in effect a standard applicable to the same aspect of performance of a motor vehicle . . . only if the standard is identical to the standard prescribed under this chapter. . . ."

2. "Compliance with a motor vehicle safety standard prescribed under this chapter does not exempt a person from liability at common law."

3. Although we cannot anticipate all possibilities, it is likely that NHTSA would "negatively" preempt state law only if it concluded that a specific item or design feature would have an adverse effect on motor vehicle safety. For example, if NHTSA had decided that headrests above a certain size should not be required because they would interfere with driver visibility, a claim by a plaintiff that a manufacurer's failure to equip a vehicle with a larger headrest led to neck injuries would be preempted, even in the absence of an explicit ban on such headrests.

4. Pursuant to 49 U.S.C. 30111(a), each FMVSS "shall be practicable, meet the need for motor vehicle safety, and be stated in objective terms."

5. NHTSA takes no position on whether the windshield retention system in this particular vehicle was "unreasonably dangerous" or what duty of care a state might reasonably impose through its common law. (Presumably, NHTSA's views on the technological options avilable to manufacturers of forward control vehicles would be considered by courts and juries considering those issues.) Similarly, NHTSA takes no position on whether this crash led to a "foreseeable impact," as alleged by plaintiff, or on the relevance, if any, of the facts that the plaintiff apparently was not seated in a designated seating position and apparently was not wearing a safety belt.

ID: nht67-1.30

DATE: 02/27/67

FROM: AUTHOR UNAVAILABLE; William Haddon, Jr., M.D.; NHTSA

TO: North America Seat Belt Council, Inc.

TITLE: FMVSS INTERPRETATION

TEXT: This is in reply to your letter of February 16, 1967.

Motor Vehicle Safety Standard No. 209 applies to seat belt assemblies manufactured after February 28, 1967, for use in passenger cars, multipurpose passenger vehicles, trucks, and buses. Since Motor Vehicle Safety Standard No. 208, which provides that a Type 1 or Type 2 seat belt assembly that conforms to Motor Vehicle Safety Standard No. 209 shall be installed in each passenger car seat position, has an effective date of January 1, 1968, until that date seat belt assemblies installed in passenger cars need not conform to Standard No. 209 unless the seat belt assemblies have been manufactured after February 28, 1967.

Please do not hesitate to call upon us if we can be of further service to you.

ID: nht80-3.5

DATE: 06/17/80

FROM: AUTHOR UNAVAILABLE; F. Berndt; NHTSA

TO: Cosco

TITLE: FMVSS INTERPRETATION

TEXT: This responds to your letter of April 17, 1980, to Mr. Vladislav Radoich concerning Standard No. 213, Child Restraint Systems. Your letter was referred to my office for reply.

You asked if a child restraint has "shoulder straps that attach to a shield or barrier, and these straps in turn are connected to a crotch strap in continuous loop by way of going behind and then coming up from below the shell, would these belts then be considered an integral part of the shield and would attaching the crotch strap to the shield by means of a buckle be allowed?"

Standard No. 213, Child Restraint Systems, is intended to address, among other things, the problem of misuse of child restraints. The principal misuse involves the failure to attach buckles and latches. To ensure that children using child restraints are afforded protection notwithstanding such misuse, the standard specifies that the belts are to be attached to restraining shield during testing only if they are an integral part of the shield. Webster's New Collegiate Dictionary (1977) defines "integral" as meaning "formed as a unit with another part." Attachment of belts that are integral parts is permitted since they are intended to remain attached whether or not the restraint is in use and thus are not subject to the type of misuse described above. The crotch strap you describe is not an integral part of the movable shield. The movable shield is a complete unit by itself. The crotch strap is a separate device that must be manually connected to the shield every time the unit is used.

You also asked if belts that must be adjusted to fit a child are prohibited by the standard. The standard does not prohibit adjustable belts. Section 5.4.2 of the standard does, however, establish requirements for any belt adjustment hardware used in the restraint.

Finally, you asked whether a surface, which is contactable by the test dummy head, that "is not a rigid surface but instead is a soft flexible part or sling type of surface" would have to be covered with energy absorbing foam. Section 5.2.3.1 provides that each child restraint system, other than a harness, which is recommended for use by children weighing less than 20 pounds must comply with the performance requirments of section 5.2.3.2. Section 5.2.3.2 provides that "Each surface, except for protusions that comply with S5.2.4, which is contactable by the dummy head when the system is tested in accordance with S6.1 shall be covered with slow-recovery, energy-absorbing material" of specified characteristics. The requirement for padding applies to any surface contactable by the test dummy's head, regardless of whether the surface is rigid or flexible. If the contactable surface is made of a flexible material that would meet the thickness and performance requirements for energy-absorbing padding set in section 5.2.3.2(a) and (b), the surface would not have to have a separate layer of energy-absorbing padding placed on top of it.

If you have any additional questions, please let me know.

SINCERELY,

COSCO

Vladislav. Radovich Vehicle Safety Standards National Highway Traffic Safety Administration

April 17, 1980

Dear Mr. Radovich:

We are in the process of evaluating various new concepts for future car seats we may produce. In this evaluation, we find that we are uncertain what will or will not be allowed when attaching fixed or movable surfaces directly forward of the child.

In the 213-80 Juvenile Car Seat Standard, under Section S6.1.2.3.1(c), it says "For a child restraint system with a fixed or movable surface described in S5.2.2.2 which is being tested under the conditions of test configuration II, do not attach any of the child restraint belt unless they are an integral part of the fixed or movable surface." Would you more clearly define what would be considered as "belts . . . (that) are an integral part of the fixed or movable surface."

If there are shoulder straps that attach to a shield or barrier, and these straps in turn are connected to a crotch strap in a continuous loop by way of going behind and then coming up from below the shell, would these belts then be considered an integral part of the shield and would attaching the crotch strap to the shield by means of a buckle be allowed? Further, would it be considered within the Standard if these belts required adjusting to fit the child? I am attaching a sketch of the type of car seat I am describing.

Another clarification is needed concerning areas that are contactable by the head requiring energy absorbing foam. Under Section S5.2.3.2, it says, "Each system surface which is contactable by the dummy's head when the system is tested in accordance with S6.1 shall be covered with slow recovery, energy absorbing material . . ." if the area that is contactable is not a rigid surface but instead is a soft flexible part or even a sling type of surface, would such surfaces also require being covered with energy absorbing foam?

Now that we have a Standard that gives us a starting point, we are eager to develop a new generation of car seats that will be even safer and easier to use. To do such innovative development takes considerable time. The earlier we can get your official answers to our questions to unclear parts of the Standard, the earlier we can get better car seats on the market. We hope you will be able to give these questions and those we have submitted to you earlier your immediate attention.

Roy Knoedler Senior Industrial Designer

ENC.

Crotch strap is a continuous loop attached to the shoulder straps. The crotch strap detaches by means of a buckle.

(Graphics omitted)

ID: 10931

Mr. Jim Burgess
Engineering Manager
Independent Mobility Systems, Inc.
4100 West Piedras St.
Farmington, NM 87401

Dear Mr. Burgess:

This responds to your letter of May 18, 1995 to this office and your telephone conversations with Walter Myers of my staff on June 14 and 27, 1995, concerning an exclusion in Federal Motor Vehicle Safety Standard (FMVSS) No. 206, Door locks and door retention components. The standard excludes from its requirements doors equipped with wheelchair lifts and either a visual or audible alarm system.

You state that your company converts minivans into wheelchair accessible vehicles by lowering the floor and adding a wheelchair ramp to the right rear side sliding door area, with an audible and/or visual alarm. The issue you raise is whether FMVSS No. 206's exclusion of wheelchair-equipped doors also excludes a ramp-equipped door. The answer is no.

FMVSS No. 206 requires that side doors leading directly into a compartment containing one or more seating positions must conform to the standard. However, paragraph S4 of the standard states:

[S]ide doors equipped with wheelchair lifts and which are linked to an alarm system consisting of either a flashing visual signal located in the driver's compartment or an alarm audible to the driver which is activated when the door is open, need not conform to this standard.

FMVSS No. 206 was amended to add the wheelchair lift exception by final rule dated March 27, 1985 (50 FR 12029, copy enclosed). The agency's rationale was that when not in use, wheelchair lifts are stowed in a vertical position parallel to and in close proximity to the interior surface of the vehicle door, thus providing a barrier to occupant ejection if the door opened while the vehicle was in motion or in the event of a crash. The alarm requirement was intended to alert the driver to a door that was open on a vehicle that was in motion.

While the information you provided us showed that your wheelchair ramp is also stowed in a vertical position parallel to and in close proximity to the door and that you install audible and/or visual alarms for the driver, wheelchair lifts and wheelchair ramps are distinctly different components. Although they serve the same purpose and are similarly configured when in the stowed position, this agency cannot by interpretation say that "lift" includes "ramp." In order to amend the standard to exclude wheelchair ramps as well as lifts, rulemaking action would be required. You may petition this agency to do rulemaking, under 49 CFR Part 552 (copy enclosed). This agency will entertain your petition and decide whether a rulemaking proceeding is appropriate.

I hope this information is helpful to you. Should you have any further questions or need any additional information, please feel free to contact Mr. Myers at this address or at (202) 366-2992.

Sincerely,

John Womack Acting Chief Counsel

Enclosures (2) 1985 final rule Part 552

ref:206 d:8/4/95

ID: Campbell_petition

Mr. David E. Campbell
David Campbell & Associates, Inc.
PO Box 402
Westfield Center, OH 44251-0402

Dear Mr. Campbell:

This letter responds to your phone conversation with Mr. Chris Calamita of my staff concerning a child restraint system (CRS) labeling issue you raised in a petition for reconsideration. You noted a potential conflict between the language required generally for CRS labels and the language required specifically for booster seats.

On October 1, 2002, the agency amended Federal Motor Vehicle Safety Standard (FMVSS) No. 213, Child restraint systems, changing some of the format, location, and content requirements for labels. (67 FR 61523, effective October 1, 2003.) Under S5.5.2(g)(1)(ii) of FMVSS No. 213, labels will have to state, "Secure this child restraint with the vehicles child restraint anchorage system if available or with a vehicle belt." You note, however, that the reference to the vehicles child restraint anchorage system is not appropriate for belt-positioning booster seats because these seats are not designed to attach to a child restraint anchorage system. You further note that this statement may cause confusion with the labeling statement required specifically for booster seats under S5.5.2(i). [1]

The agency agrees that there was an error in requiring both the S5.5.2(g)(1)(ii) and S5.5.2(i) statements on belt-positioning booster seat labels. Booster seats should have been excluded from the required language in S5.5.2(g)(1)(ii). We intend to publish a correction prior to the October 1, 2003 effective date of the requirement.At that time, will also address the other issues raised in your petition for reconsideration.

If you have any questions please contact Mr. Chris Calamita of my staff at (202) 366-2992.

Sincerely,

Jacqueline Glassman
Chief Counsel

ref:213
d.9/5/03





---

[1] The language in S5.5.2(i) states that only the vehicles lap and shoulder belt, or lap belt part only, is used to secure the booster seat, as appropriate.

ID: 1984-1.44

TYPE: INTERPRETATION-NHTSA

DATE: 05/02/84

FROM: AUTHOR UNAVAILABLE; Frank Berndt; NHTSA

TO: Arent; Fox; Kinter; Plotkin & Kahn -- Lawrence F. Henneberger

TITLE: FMVSS INTERPRETATION

ATTACHMT: 6/7/74 letter from R.B. Dyson to Engineer/Transit Technology; 7/10/74 letter from R.B. Dyson to Flyer Industries Limited; 11/12/74 letter from R.B. Dyson to The Flxible Company; 4/1/88 (est) letter to Carl Kalpan from Michael M. Finkelstein (A33; Std. 108); 3/7/88 memo to Associate Administrator for Research and Development, NHTSA from Erika Z. Jones; 11/30/81 letter to Kenneth G. Moyer from Frank Berndt

TEXT:

Lawrence F. Henneberger, Esq. Arent, Fox, Kintner, Plotkin & Kahn 1050 Connecticut Avenue N.W. Washington, D.C 20036-5339

This is in reply to your letter of September 26, 1983 asking for an interpretation on behalf of your client, Jacobs Manufacturing Company.

You referenced an interpretation of August 31, 1978, which we gave you, also on behalf of Jacobs. Your client manufactures a diesel engine retarder system which would be provided a means to warn following drivers when the system was in use. The specific means of warning discussed in the 1978 letter was to connect the retarder activation switch to the hazard warning system, either as original or aftermarket equipment. We concluded that this installation augmented the hazard warning system, and thus did not impair the hazard warning system within the prohibition of paragraph S4.1.3 of Standard No. 108. We also concluded that it would not render inoperative the hazard warning system, and thus was not a violation of the "anti-tampering" provision of Section 108(a)(2)(A) of the Traffic Safety Act.

Apparently, a customer of Jacobs has asked it to wire its warning system through the stop lamps. A separate manually-operated switch will be provided. We understand that when the warning system is operational there is no difference of light intensities when the brakes are applied. You have asked us for a re-interpretation, on the basis of these new facts, that the changed retarcer warning will not violate either paragraph S4.1.3 or section 108(a)(2)(A). You believe that the warning system is still permissible, because the stop lamps when so used will nevertheless indicate that the vehicle is diminishing its speed by braking, and because of interpretations by this office that retarder controls can be incorporated with the foundation brake controls and activated with the foundation brakes.

We have reviewed the 1978 interpretation allowing use of the retarder system through the hazard warning system, and the two 1974 interpretations with reference to incorporation of supplementary braking devices with foundation controls. We agree with your interpretation that the latter interpretations impliedly require activation of the stop lamps when the supplementary braking devices are used. The agency is not prepared at this time to modify either interpretation, and you may inform your client that there is no Federal legal prohibition against its hiring the retarder to activate the stop lamps when it is in use.

However, we wish to point cut an area of potential risk which your client should weigh before proceeding to offer this option and which, if it occurred, could be viewed as an impairment of the stop signal within the prohibition of S4.1.3. Under the Jacobs plan, activation of the stop lamp when the retarder is engaged would indicate only a lessened rate of speed. Because there is no difference in intensity, a following driver would have no indication when the brake was applied to signal a normal or sudden stop, such as might be required when a child or animal runs into the roadway.

If you have any further questions, we shall be happy to answer them.

Sincerely,

Frank Berndt Chief Counsel

September 26, 1983

Frank Berndt, Esquire Chief Counsel National Highway Traffic Safety Administration Room 5219, 400 Seventh Street, S.W. Washington, D.C. 20590

Re: Request for Interpretation

Dear Mr. Berndt:

My client, Jacobs Manufacturing Company, manufactures and distributes a complete line of retarding devices which provide auxiliary retarding capabilities independent of a vehicle's foundation brakes and permit a heavy truck to travel at normal traffic speeds on long downgrades, under full control, as well as extending the service life of the foundation brakes.

On August 31, 1978, your office provided me with an interpretation (copy attached as Exhibit A), confirming that the connection of a retarder activation switch to the hazard warning system did not violate the requirements of Federal Motor Vehicle Safety Standard 108, nor the anti-tampering provisions set forth in Section 108(a)(2)(A) of the National Traffic and Motor Vehicle Safety Act, as amended. Because of customer reports that such a retarder activation device, both as a practical and legal matter, should be connected to the rear brake lights, Jacobs now requests a written interpretation that connection of the retarder activation switch to the brake light system when a retarder is installed, either at the original equipment or aftermarket level, will not violate laws and regulations administered by the National Highway Traffic Safety Administration. More specifically, Jacobs seeks the agency's confirmation that a hand-operated retarder activation switch, connected to the brake light system to provide the same steady-on warning when activated, is not legally precluded in the view of NHTSA.

As was pointed out in our earlier submission in support of our request for an opinion concerning use of the hazard warning activation means for retardation signalling, in recent years the retarding forces generated by electric retarders have become capable of producing significant deceleration of a large truck so equipped. For this reason, Jacobs believes that there must be an effective means of providing a warning to following vehicles when a retarder is in use. Using the brake lights in their regular mode as the retarder warning light does not appear to violate Federal Motor Vehicle Safety Standard 108 or the anti-tampering clause of the National Traffic and Motor Vehicle Safety Act, for the reasons as discussed below.

In addition to the wording in FMVSS 108, a review of the applicable SAE Standard, SAE J586c (currently referenced by FMVSS 108), does not appear to preclude the use of stop lamps as a steady-burning retarder warning signal. Indeed, S 2.1 of the standard, which provides a definition of "stop lamps," strongly suggests that the warning light would be a permissible use. The definition states that "stop lamps" are "lamps giving a steady light to the rear of a vehicle or train of vehicles to indicate the intention of the operator of a vehicle to stop or diminish speed by braking." This is precisely the intention and effect of the retarder activation signal.

The brake light warning means has received further support in a series of formal interpretations issued by your office, to the effect that retarder controls can be incorporated with the foundation brake controls and activated with the foundation brakes. Clearly, if one can connect the retarder controls into the foundation brake controls, the application of the retarder will automatically trigger the rear stop lights. See undated letter from Mr. Lawrence Schneider, NHTSA Chief Counsel, responding to letter dated April 2, 1974, from Mr. Alden G. Olson, Municipality of Metropolitan Seattle; letter of July 10, 1974, from Mr. Richard Dyson, NHTSA Assistant Chief Counsel, to Mr. A. Deane, Flyer Industries, Ltd., Winnipeg, Canada; and letter of November 12, 1974, from Mr. Dyson, then Acting Chief Counsel of NHTSA, to Mr. Stanley Frye, The Flxible Company, Loudonville, Ohio. Copies of these letters are attached hereto as Exhibit B.

The only caveat detectable in the pertinent NHTSA interpretations appears to be that use of the retarder in conjunction with the brake system and rear brake lights should not affect the rear stop lights in such a way that they no longer comply with the requirements of FMVSS 108. Use of a hand-operated switch to activate the brake lights when the retarder is in use for purposes of signalling following drivers does not raise this difficulty under applicable law and regulations.

We appreciate your consideration of our request for interpretation, and encourage you to contact the undersigned, should questions remain.

Sincerely,

Lawrence F. Henneberger

cc: Z. Taylor Vinson, Esquire (Prior interpretation letters omitted here.)

ID: nht95-1.58

TYPE: INTERPRETATION-NHTSA

DATE: February 10, 1995

FROM: Philip R. Recht -- Chief Counsel, NHTSA

TO: Gary Shultz -- Vice President, General Counsel and General Manager -- Public Relations, Diamond Star Motors

TITLE: None

ATTACHMT: ATTACHED TO 1/20/95 LETTER FROM GARY SHULTZ TO EDWARD GLANCY

TEXT: Dear Mr. Shultz:

This responds to your letter asking about Part 583, Automobile Parts Content Labeling. You noted that section 583.6 specifies that manufacturers are to determine the percentage U.S./Canadian Parts Content for each carline on a model year basis, before t he beginning of each model year. You stated, however, that the regulation does not indicate what should be done when there is a change of plans in the source of production for a particular carline in the middle of the model year. According to your lett er, one of your carlines currently in production will now be manufactured in both the U.S. and Japan, which may significantly affect the carline's current calculation for content as well as the final assembly point.

You requested confirmation whether the label should be changed to reflect the change in domestic/foreign content in the middle of the model year or whether section 583.6 should be relied on as the authority for determining a carline's content only on a o ne-time model year basis. You also requested confirmation as to whether the label should be changed to reflect the final assembly point in accordance with section 583.5(e). Your questions are addressed below.

By way of background information, section 583.5(a) requires manufacturers to provide five basic items of information on the label: (1) U.S./Canadian parts content; (2) Major sources of foreign parts content; (3) Final assembly point; (4) Country of origi n for the engine; and (5) Country of origin for the transmission. The first two items are determined on a "carline" basis; the last three items are determined with respect to individual vehicles.

Both Part 583 and the American Automobile Labeling Act (now codified at 49 U.S.C. 32304) contemplate that U.S./Canadian parts content and Major sources of foreign parts content are determined on a once-a-model-year basis for a particular carline. In par ticular, section 32304(b)(2) reads as follows:

At the beginning of each model year, each manufacturer shall establish the percentages required for each carline to be indicated on the label . . . . Those percentages are applicable to that carline for the entire model year . . . .

We believe that Congress included this provision to reduce unnecessary manufacturer costs, and was seeking to make it clear that the manufacturers could not be required to revise their calculations during the model year. The specified percentages are es timates by nature, and the assumptions underlying them are subject to change during the model year. It would be very burdensome to manufacturers to be required to constantly recalculate the estimated percentages throughout the model year.

Your letter raises the issue, however, of whether a manufacturer is permitted to revise the carline percentages in the event of a major change in source of production during a model year. It is our opinion that a manufacturer may revise the percentages in such circumstances, at its option. Such revision would be analogous to correcting an error and would prevent the possibility of misleading consumers. If you do make such a revision, however, the revised estimates should reflect the model year as a w hole and not just the balance of the model year. In addition, the label should include a note indicating that the carline percentages have been revised during the model year. This is necessary to prevent confusion when consumers compare the labels of v ehicles within the same carline manufactured at different times.

You also asked whether the label should be changed to reflect the final assembly point in accordance with section 583.5(e). Since final assembly point is determined for individual vehicles rather than carlines, the label must be changed to indicate the actual final assembly point of the vehicle. See section 583.5(a)(3).

The section which you cited, i.e., section 583.5(e), permits manufacturers to provide additional information for carlines assembled in the U.S./Canada and in one or more other countries. Since your carline would now be assembled in the U.S./Canada and J apan, your company may avail itself of this option. I note that section 583.5(e)(3) provides that a manufacturer selecting this option for a particular carline must provide the specified additional information on the labels of all vehicles within the ca rline. In your situation, you would need to provide the additional information on the labels of all vehicles within the carline, beginning from the time the vehicles were manufactured in both places.

I hope this information is helpful.