ID: 22302.drn

Monsieur Jean-Yves Le Bouthillier
Standards Manager
Les Entreprises Michel Corbeil Inc.
304 12^th Avenue
Laurentides, Quebec JOR 1C0
CANADA





Dear Monsieur Le Bouthillier:

This responds to your request for an interpretation addressed to Mr. Charles Hott, of the National Highway Traffic Safety Administration (NHTSA), regarding S5.3.1, Head protection zone, of Standard No. 222, School bus passenger seating and crash protection. Our answer is provided below.

You provided three photographs of a school bus interior showing views between the driver's seat and the first row of passenger seats behind the driver's seat. One photograph shows the view from behind the first row of passenger seats toward the front of the bus. In this photograph is depicted a small partition that is attached to the left side of the school bus between the driver's seat and the first row of passenger seats. The partition appears to extend only partially over the driver's seat. No measurements are provided for this partition. Two photographs show a side view of the driver's seat, to the school bus interior roof. There appears to be a storage area covered by a door on the left wall of the bus above the driver's seat.

On one photograph are placed two white squares (obscuring the driver's storage area) that apparently show where in the bus it is 58 1/4 inches (1479.5 mm) to the floor and 40 inches (1016 mm) "over the seating reference point" and where it is 30 inches (762 mm) "in front of the seating reference point." We will assume that these measurements are in relation to the seating reference point of the first row of passenger seats. The other photograph shows what the interior actually looks like (i.e., does not include the obscuring white squares). You wish to know whether the closed driver's storage area and the side partition must meet S5.3.1 of Standard

No. 222. Based on the available information, the answer is yes.

S5.3.1 of Standard No. 222 states, in relevant part: "Any contactable surface of the vehicle within any zone specified in S5.3.1.1 shall meet the requirements of S5.3.1.3. . . ." ⁽¹⁾

S5.3.1.1 states that the head protection zones in each vehicle are "the spaces in front of each school bus passenger seat which are not occupied by bus sidewall, window, or door structure and which, in relation to that seat and its seating reference point, are enclosed by the following planes;"

(a) Horizontal planes 305 mm and 1016 mm above the seating reference point:

(b) A vertical longitudinal plane tangent to the inboard (aisle side) edge of the seat;

(c) A vertical longitudinal plane 83 mm inboard of the outboard edge of the seat;

(d) Vertical transverse planes through and 762 mm forward of the reference point.

The issue you raise is whether the storage area and side partition are considered "bus sidewall" and thus excluded under S5.3.1.1. The storage area does not qualify for the exclusion. The closed storage area over the driver's seat is an overhead projection from the bus interior. NHTSA's longstanding position has been that "[t]he roof structure and overhead projections from the interior are included in [the head protection] area of the zone." (Final rule; response to petitions for reconsideration; 41 FR 28506, 28507; July 12, 1976; emphasis added.) Accordingly, we consider the storage area as not per se excluded. If the driver's storage area is located within horizontal planes 305 mm and 1016 mm above the seating reference point of the first row of passenger seats, the storage door must meet S5.3.1.2 and S5.3.1.3 of Standard No. 222.

In addition, we do not consider the partition between the driver's seat and first row of passenger seats to be "bus sidewall." In a letter of April 28, 1978 to Wayne Corporation (copy enclosed), NHTSA interpreted "sidewall" to include "those surfaces that run parallel to the outboard edge of the forward facing seat." Based on your photographs, the partition appears to be perpendicular to the outboard edge of the forward facing seat. The partition also appears to be completely in the head protection zone, in which case, all surface areas of the partition (including the side of the partition facing the driver's seat) must meet S5.3.1.2 and S5.3.1.3.

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 at (202) 366-2992.

Sincerely,

John Womack
Acting Chief Counsel

ref:222
d.8/2/01






---

1. ¹ "Contactable surface" is defined in S4 of Standard No. 222 as "any surface within the zone specified in S5.3.1.1 that is contactable from any direction by the test device described in S6.6, except any surface on the front of a seat back or restraining barrier 76 mm or more below the top of the seat back or restraining barrier."

ID: aiam4624

"Dear Mr. Ginsburg: This responds to your letters asking whethe Federal Motor Vehicle Safety Standard (FMVSS) No. 302, Flammability of Interior Materials (49 CFR /571.302), applies to the 'interior window coverings' that you manufacture for 'pick up truck shells.' In your letters, you briefly explain that the 'shell,' which is sold as an aftermarket product, 'is placed directly over the bed of a truck.' The answer to your question is no, Standard No. 302 does not apply to your product. I regret the delay in responding to your letter. By way of background information, the National Highway Traffic Safety Administration (NHTSA) does not grant approval 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 or equipment comply with applicable requirements. The following represents our opinion based on our understanding of the facts provided in your letter. There are two factors which lead us to conclude that Standard No. 302 does not apply to your window coverings. First, you manufacture an aftermarket item of equipment--i.e., an accessory or addition to a motor vehicle sold to owners of used vehicles. Standard No. 302 regulates the flammability resistance of curtains and shades in new completed vehicles only. Second, even if the shell and its window coverings were installed on a new vehicle prior to the vehicle's first sale to a consumer, Standard No. 302 applies only to components in the 'occupant compartment air space' (S4), which the agency has indicated is the area in which persons are likely to use to ride. Assuming that we are correct in believing that people do not typically ride in the enclosed bed of the truck, we conclude that the area enclosed by the shell would not be an occupant compartment. This accords with the agency's February 15, 1983 letter to Mr. Nakaya in which NHTSA stated that, with regard to vans, the space to the rear of the rearmost seat was not part of the occupant compartment. Accordingly, since the window coverings in question are not located in the occupant compartment, we conclude that they are not subject to Standard No. 302. Nevertheless, there are two matters that you ought to consider when manufacturing your window coverings. First is the possibility of liability under State and common law if the coverings were to catch fire in a situation where a window covering meeting Standard No. 302's flammability resistance requirements would not have caught fire, or if the coverings burn much more rapidly than coverings meeting those requirements. Second is the possibility of a finding of a safety-related defect in your products. While Standard No. 302 does not directly apply to your product, you should be aware that the window coverings you manufacture are considered to be items of motor vehicle equipment. As the manufacturer of motor vehicle equipment, you are thereby subject to the provisions set forth in sections 151-159 of the Vehicle Safety Act concerning the recall and remedy of equipment with defects relating to motor vehicle safety. If you or this agency determined that your product had a defect relating to motor vehicle safety, you would have to notify all known purchasers of the defect and either repair your product so that the defect is removed, or replace the window coverings with an identical or reasonably equivalent product that does not contain a defect. Your letter did not indicate whether you also manufacture the truck shell to which you refer. If you are the shell manufacturer, and if your product contains glazing material, Standard No. 205 (49 CFR /571.205, Glazing Materials) directly applies to your product. Standard No. 205 is an equipment standard which sets performance requirements for glazing materials used in new and used motor vehicles and glazing materials sold as items of motor vehicle equipment, including glazing used in truck shells. The standard establishes both performance requirements, including those regulating the light transmittance and abrasion resistance of glazing, and labeling requirements applicable to the glazing used in your product. We note also that, since your description of the 'shell' was very brief, we were not certain whether the term 'shell' as you use it includes what our regulations refer to as a 'slide-in camper.' Under Standard No. 126, Truck-Camper Loading (49 CFR /571.126), a 'slide-in camper' is a structure having a roof, floor, and sides, designed for the purpose of providing shelter for persons and to be mounted on and removed from the cargo area of a truck by the user. (See, also, 49 CFR /575.103 for NHTSA's consumer information requirements for trucks that are capable of accommodating slide-in campers.) In light of the possibility that the structures to which you refer are slide-in campers, and that you might be the manufacturer of the campers, we would like to mention our regulations that apply to slide-in campers. Briefly, each slide-in camper must meet Standard No. 205 for any glazing materials used in the camper. In addition, Standard No. 126 requires each slide-in camper to be permanently labeled with information including its maximum loaded weight. This standard also requires each camper to be furnished with an owner's manual that includes information on total camper weight, proper matching of a truck and slide-in camper, appropriate methods of camper loading, and how to determine the camper's center of gravity (cg) and where the cg should be placed in the truck cargo area. All campers must also be certified in accordance with section 114 of the Vehicle Safety Act as conforming to all applicable Federal motor vehicle safety standards. Each camper manufacturer must submit certain information concerning its company pursuant to Part 566 of our regulations, Manufacturer Identification. However, Standard No. 302 does not apply to slide-in campers, even if the slide-in camper is installed on a new pickup truck. Finally, we must decline your request that we review 'California Health and Safety Code Standard No. 19' to inform you whether window coverings that meet the California standard can meet Standard No. 302. NHTSA determines whether a vehicle or item of motor vehicle equipment complies with an applicable safety standard by purchasing vehicles and equipment and testing them under strict conditions according to the procedures specified in the standards. Thus, we determine whether a product subject to our standards complies with those standards by assessing the actual performance of the product in our tests. Since your window coverings are not subject to Standard No. 302, they will not be part of our compliance testing. Further, even if the coverings were subject to Standard No. 302, we have already noted that it is the responsibility of the manufacturer of the motor vehicle or motor vehicle equipment--and not NHTSA--to ensure that its vehicles or equipment comply with applicable FMVSS's. I have enclosed copies of all of the safety standards and regulations mentioned above, and an information sheet explaining how you can obtain copies of NHTSA regulations for your future reference. I hope this information is helpful. Sincerely, Stephen P. Wood Acting Chief Counsel Enclosures";

ID: nht91-6.51

DATE: November 1, 1991

FROM: William E. Kenyon -- Mr. K's Original Headsaver, Patented Restraint Systems

TO: Chief Counsel, NHTSA

TITLE: Mr. K Headsaver (A Head Restraint System for Pickup Trucks)

ATTACHMT: Attached to letter dated 1/15/92 from Paul Jackson Rice to William E. Kenyon (A39; Std. 202)

TEXT:

Pursuant to a phone discussion with Dr. Carl C. Clark, NRD-12, I was advised to send this letter and Affidavit to your attention. We are the manufacturers of a universal, retrofit head restraint system for pickup trucks with bench seats.

Our head restraint has been on the market for four years and meets or exceeds the federal Standard 202 as shown in the enclosed Affidavit of Testing. We would like our product to be federally approved as an after-market safety product.

Please advise us at your earliest convenience if we have not met all requirements.

Attachment

AFFIDAVIT Confirmation of Test Results of Mr. K HeadSaver (A head restraint system for pickup trucks)

COUNTY OF MARICOPA) ) STATE OF ARIZONA )

I, William E. Kenyon, the undersigned, being first duly sworn, under oath, depose and say:

1. That I am the inventor and patent holder of US Patent #4,869,448, a Head Restraint for Vehicles.

2. That on the 29th day of October, 1991, a test was conducted of the Mr. K HeadSaver in the presence of your affiant and two witnesses.

3. That the head restraint used in the test is, in fact, the head restraint known as the Mr. K HeadSaver; that the manufacturer has warranted to your affiant that the head restraint does comply with Standard 202.

4. That this test is being conducted to show that the product known as the Mr. K Headsaver is in compliance with the 202 Standard and that said headrest meets the qualifications to be a federally approved aftermarket safety product.

5. That when installed, the headrest is 27.5 inches in height; the two end pads are 11" x 8-1/2"; pads are filled with extra- firm, high-density impact foam and covered with fabric.

6. That the following test was conducted:

US49, S571.101 Standard No. 202; Head restraints, S4.3(b):

(1) The top of the head restraint is 27.5 inches above the seating reference point.

(2) When measured either 2.5 inches below the top of the head restraint or 25 inches above the seating reference point, the lateral width of the head restraint is not less than 10 inches for use with bench seats.

(3) There was no displacement of the rearmost portion of the head form.

S5.2 Compliance with S4.3(b):

a. A test device was placed in accordance with (a).

b. A reference line was established.

C. A 9 inch diameter, 16 lb. spherical head form was used in producing a moment greater than 3,300 in.

lbs.

d. A Load was gradually increased to exceed 200 pounds.

The Mr. K HeadSaver was installed in a 1985 S10 Chevrolet pickup cut-a-way, with bench seats, for testing purposes.

Inspection of the headrest after testing found it to be in the same condition as before testing.

DATED this 29 day of October, 1991.

William E. Kenyon (Notary information is omitted)

ID: 10-001800drn_risner

ID: nht68-3.2

DATE: 02/20/68

FROM: AUTHOR UNAVAILABLE; H.M. Jacklin, Jr; NHTSA

TO: Toyo Kogyo Company, Limited

TITLE: FMVSS INTERPRETATION

TEXT: Thank you for your letter of November 30, 1968 (your reference No. CSAI-25) requesting information to a number of questions related to the Federal Motor Vehicle Safety Standard. I(Illegible Word) that we did not receive your October 5, 1968 letter and that the(Illegible Word) of work has delayed my answer to your most recent letter.

I am glad to send you the following information:

a.(Illegible Word) No. 112 - Headlight Concealment Devices.

1. It is stipulated in 3.4.5 that "each headlamp concealment device shall, within an ambient temperature range of -70 to +120 degrees F., be capable of being fully opened in not(Illegible Line) described in S.4.3." With regard to the temperature condition at the time of a test, if only the(Illegible Word) temperature satisfied the cold temperature conditions, is it all right to try no regard to other conditions, such as the sticking of frost, ice, etc.?

ANSWER: It is only necessary that the ambient temperature conditions (-20 to +120 degrees F.) be(Illegible Word) at the time of the test.

b.(Illegible Word) No. 114 - Thoft Protection.

1. With regard to the regulation in s.4.2 that "The prime cause for deactivating the csr's engine or other main source of motive power shall not activate the(Illegible Word) required by S4.11(b)," we have provided the ignition switch with four stages as shown in the batch below; our key-locking system is of the(Illegible Word) that the system does not activate(Illegible Line)(Illegible Line)

ANSWER: The system as you describe it appears to conform to(Illegible Line)(Illegible Line) with this requirement to the responsibility of the individual manufacturer.

2. With reference to the stipulation in S.4.1. "Each passenger car shall have a key-locking system that, whenever the key is removed, will prevent ----.", we would like to know whether or not we must provide such a mechanism as the key can be removed only at the stage "Lock" and cannot at the stage "Off".

ANSWER: A locking system having such a position that the key may be removed without activating either the cars' steering lock or its self-mobility lock would not conform to the standard in its present form, since paragraph S4.1 of the standard requires each car to have a key locking system that, whenever the key is removed, will prevent either steering or self-mobility of the car, or both.

c. MVSS No. 201 - Occupant Protection in Interior Impact 1. With regard to the interpretation of the stipulation in S.3.1 " , the deceleration of the head form shall not exceed 80 g for more than 3 milliseconds," when the deceleration wave -- shown in the chart below -- is obtained.

in case DELTA t[1] < 3 milliseconds, we interpret that the standard is satisfied even when delta t[1] +="Sigma" t[2] t[3] t[i] milliseconds.

Is our interpretation correct? (Illustration omitted)

ANSWER: Your interpretation is correct. The standard permits more than one peak that exceed 80g which, cumulatively, may add to more than 3 milliseconds. No single peak may continuously exceed 80g for more than a 3 millisecond duration.

2. When the areas stipulated in S.3.1.1.(d) -- "Areas outboard of any point of tangency on the instrument panel of a 6.5 inch diameter head form tangent to an inboard of vertical longitudinal plane tangent to the inboard edge of the steering wheel," -- are illustrated, which of the following hatched portions in the figures below is in conformity to the stipulation? (Illustration omitted)

ANSWER: Figure (a) is correct for the inboard side. Present requirements do not apply to the area outboard of the steering wheel on the instrument panel.

d. MVSS No. 207 - Anchorage of Seats.

S.3.3 Folding and hinged seats. Except for folding auxiliary seats and seats with backs which are adjustable for occupant confort only.

1. Is it correct to interpret that the underlined part is referring to seats with backs reclining mechanism enabling to adjust the angle of the back?

ANSWER: Yes.

2. Or, should we interpret that the seats with reclinable backs come under the hinged seats?

ANSWER: No.

3. a. In the case of car with four doors, if the front seats are those with reclinable backs, these are presumed to be the ones corresponding to (1). Is this interpretation correct?

ANSWER: Yes.

b. In the case of a car with two doors, we would like to interpret that only the reclinable seat backs with folding mechanism enabling the passenger on the rear seat to get in and out are in conformity to (2). Is our interpretation correct?

ANSWER: Yes.

S.3.3.1 The release control shall be readily accessible to the occupant of that seat and to the occupant of any seat immediately behind that seat.

1. The above stipulation is presumed to be laid down for the egress of the passengers on the rear seat. Therefore, when the reclining seats are installed in a four-door car, we would like to consider it unncessary to pay regard to the underlined part. Is this interpretation correct?

ANSWER: Yes.

2. In the case of a two-door car, if the control which can be easily operated by passengers on the rear seat is installed only on one side (the right side), the passengers on the rear seat can operate the control by moving to the right side. Consequently, we consider it sufficient to install only on the right side the control which is easily accessible to the passengers on the rear seat. Is this interpretation correct?

ANSWER: In the case of a two-door car, for a split back or bucket seat arrangement, where both seat backs fold, a release control should be provided on the outboard side of each folding seat back. If the seat back is split and only one seat back folds, only one release control is required on the outboard side.

e. MVSS No. 210 - Seat Belt Assembly Anchorages

1. We judge that the fastening strength of the seat belt anchorage will change, depending on the shape of the eye bolt attaching the seat belt to the seat belt anchorage point.

If an anchorage is tested by using our designed seat belt assembly and the strength of the anchorage can be assured, we understand that the anchorage fully conforms to the standard, and also understand that it is not necessary to guarantee the owners of Mazda vehicles if they attach a seat belt assembly other than the one designated by us. Is our interpretation correct?

We, of course, will specify in our Operation Manual that the seat belt assembly designated by our company must be used.

ANSWER: Under Paragraph S.5.1 of Federal Motor Vehicle Safety Standard No. 210, anchorages are to be tested by using a Type 1 or Type 2 seat belt assembly as defined in FMVSS No. 209. If you follow this procedure, using a belt which complies to No. 209, and your anchorages meet the requirements of Standard No. 210, then you are in compliance with this standard.

I must point out that this Bureau does not issue approvals on items of equipment or on vehicle designs. Therefore, the above comments are for your information only and in no way relieve the vehicle manufacturer from his responsibility for certifying that the assembled vehicle meets the requirements of the Standards.

ID: aiam3055

Dear Mr. Bragg: This is in reply to your letter of June 19, 1979, to Mr. W. M. Elliot of this agency requesting clarification of Paragraph S4.3.1.1.1 of Federal Motor Vehicle Safety Standard No. 108.; This Paragraph states: >>>'Clearance lamps may be mounted at a location other than on th front and rear if necessary to indicate the overall width of a vehicle, as for protection from damage during normal operation of the vehicle, and at such a location they need not be visible at 45 degrees in board.'<<<; You have asked the following questions: '1. Is the decision to use another mounting location made at th discretion of the manufacturer?'; Yes. The manufacturer determines whether placement of the lamps i accordance with Standard No. 108 will indicate overall width or whether they are susceptible to damage if so placed, and there is no requirement that it obtain the concurrence of this agency in its decision.; '2. Are there any specific conditions that are required in order t consider it 'necessary' to mount clearance lamps in another location?'; No. The agency has established no criteria of necessity and question on variations from front and rear mounting requirements are treated on an *ad hoc* basis.; '3. When the decision is made to mount the clearance lamps in anothe location, can a manufacturer use *combination* clearance/side marker lamps mounted on the *side of vehicle* to fulfill the clearance lamp requirements.'; Yes, as long as the clearance lamp function is visible from the rea and indicates the overall width of the vehicle.; '4. Section S4.1.1.1 states that in 'such a location they need not b visible at 45 degrees inboard'. Does this mean that they need not be visible from 0 to 45 degrees inboard?'; No. SAE Standard J592e, *Clearance, Side Marker, and Identificatio lamps*, July 1972, requires clearnce (sic) lamps to be visible at the H Point at 10 R and L, 20 R and L, 30 R and L, and at 45 R and L. Paragraph S4.3.1.1.1 specifies that under the alternate mounting positions the lamps need not be visible at the 45 degrees positions. They must, however, be visible at the other positions.; I hope this answers your questions, Sincerely, Frank Berndt, Chief Counsel

ID: nht69-2.51

DATE: 02/20/69

FROM: AUTHOR UNAVAILABLE; H.M. Jacklin, Jr.; NHTSA

TO: Toyo Kogyo Company, Limited

TITLE: FMVSS INTERPRETATION

TEXT: Thank you for your letter of November 30, 1968 (your reference No. GSAE-26) requesting information to a number of questions related to the Federal Motor Vehicle Safety Standards. I regret that we did not receive your October 5, 1968 letter and that the pressure of work has delayed my answer to your most recent letter.

I am glad to send you the following information:

a. MVSS No. 112 - Headlight Concealment Devices.

1. It is stipulated in S.4.6 that "each headlamp concealment device shall, within an ambient temperature range of -20 to +120 degrees F., be capable of being fully opened in not more than three seconds after actuation of the mechanism described in S.4.3." With regard to the temperature condition at the time of a test, if only the ambient temperature satisfies the cold temperature conditions, is it all right to pay no regard to other conditions, such as the sticking of frost, ice, etc.?

ANSWER: It is only necessary that the ambient temperature conditions (-20 to +120 degrees F.) be satisfied at the time of the test.

b. MVSS No. 114 - Theft Protection.

1. With regard to the stipulation in S.4.2 that "The prime means for deactivating the car's engine or other main source of motive power shall not activate the deterrent required by S.4.1.(b)," we have provided the ignition switch with four stages as shown in the sketch below: our key-locking system is of the mechanism that the system does not activate at the stage "Off", activates only at the stage, "Lock" and satisfies S.4.4. Does this mechanism conform to S.4.2.7

ANSWER: The system as you describe it appears to conform to S4.2; however, the Bureau does not issue approvals of any specific system, and the development of equipment to comply with this requirement is the responsibility of the individual manufacturer.

2. With reference to the stipulation in S.4.1. "Each passenger car shall have a key-locking system that, whenever the key is removed, will prevent ----.", we would like to know whether or not we must provide such a mechanism as the key can be removed only at the stage "Lock" and cannot at the stage "Off".

ANSWER: A locking system having such a position that the key may be removed without activating either the cars' steering lock or its self-mobility lock would not conform to the standard in its present form, since paragraph S4.1 of the standard requires each car to have a key locking system that, whenever the key it removed, will prevent either steering or self-mobility of the car, or both.

c. MVSS No. 201 - Occupant Protection in Interior Impact

1. With regard to the interpretation of the stipulation in S.3.1 " , the deceleration of the head form shall not exceed 80 g for more than 3 milliseconds," when the deceleration wave -- shown in the chart below -- is obtained.

in case DELTA t[1] < 3 milliseconds, we interpret that the standard is satisfied even when delta t[1] +="SIGMA" t[2] t[3] t;> 3 milliseconds.

Is our interpretation correct? (Illustration omitted)

ANSWER: Your interpretation is correct. The standard permits more than one peak that exceed 80g which, cumulatively, may add to more than 3 milliseconds. No single peak may continuously exceed 80g for more than a 3 millisecond duration.

2. When the areas stipulated in S.3.1.1.(d) -- "Areas outboard of any point of tangency on the instrument panel of a 6.5 inch diameter head form tangent to an inboard of vertical longitudinal plane tangent to the inboard edge of the steering wheel," -- are illustrated, which of the following hatched portions in the figures below is in conformity to the stipulation? (Illustration omitted)

ANSWER: Figure (a) is correct for the inboard side. Present requirements do not apply to the area outboard of the steering wheel on the instrument panel.

d. MVSS No. 207 - Anchorage of Seats.

S.3.3 Folding and hinged seats. Except for folding auxiliary seats and seats with backs which are adjustable for occupant comfort only.

1. Is it correct to interpret that the underlined part is referring to seats with backs of reclining mechanism enabling to adjust the angle of the back?

ANSWER: Yes.

2. Or, should we interpret that the seats with reclinable backs come under the hinged seats?

ANSWER: No.

3. a. In the case of car with four doors, if the front seats are those with reclinable backs, these are presumed to be the ones corresponding to (1). Is this interpretation correct?

ANSWER: Yes.

b. In the case of a car with two doors, we would like to interpret that only the reclinable seat backs with folding mechanism enabling the passengers on the rear seat to get in and out are in conformity to (2). Is our interpretation correct?

ANSWER: Yes.

S.3.3.1 The release control shall be readily accessible to the occupant of that seat and to the occupant of any seat immediately behind that seat.

1. The above stipulation is presumed to be laid down for the egress of the passengers on the rear seat. Therefore, when the reclining seats are installed in a four-door car, we would like to consider it unnecessary to pay regard to the underlined part. Is this interpretation correct?

ANSWER: Yes.

2. In the case of a two-door car, if the control which can be easily operated by passengers on the rear seat is installed only on one side (the right side), the passengers on the rear seat can operate the control by moving to the right side. Consequently, we consider it sufficient to install only on the right side the control which is easily accessible to the passengers on the rear seat. Is this interpretation correct?

ANSWER: In the case of a two-door car, for a split back or bucket seat arrangement, where both seat backs fold, a release control should be provided on the outboard side of each folding seat back. If the seat back is split and only one seat back folds, only one release control is required on the outboard side.

e. MVSS No. 210 - Seat Belt Assembly Anchorages

1. We judge that the fastening strength of the seat belt anchorage will change, depending on the shape of the eye bolt attaching the seat belt to the seat belt anchorage point.

If an anchorage is tested by using our designed seat belt assembly and the strength of the anchorage can be assured, we understand that the anchorage fully conforms to the standard, and also understand that it is not necessary to guarantee the owners of Mazda vehicles if they attach a test bolt assembly other than the one designated by us. Is our interpretation correct?

We, of course, will specify in our Operation Manual that the seat belt assembly designated by our company must be used.

ANSWER: Under Paragraph S.5.1 of Federal Motor Vehicle Safety Standard No. 210, anchorages are to be tested by using a Type 1 or Type 2 seat bolt assembly as defined in FMVSS No. 209. If you follow this procedure, using a belt which complies to No. 209, and your anchorages meet the requirements of Standard No. 210, then you are in compliance with this standard.

I must point out that this Bureau does not issue approvals on items of equipment or on vehicle designs. Therefore, the above comments are for your information only and in no way relieve the vehicle manufacturer from his responsibility for certifying that the assembled vehicle meets the requirements of the Standards.

ID: nht88-2.85

TYPE: INTERPRETATION-NHTSA

DATE: 08/03/88

FROM: ERIKA Z. JONES -- CHIEF COUNSEL NHTSA

TO: BARRY NUDD -- ATWOOD MOBILE PRODUCTS

TITLE: NONE

ATTACHMT: LETTER DATED 08/28/87 TO ERIKA Z. JONES FROM BARRY NUDD; LETTER DATED 07/14?88 EST TO S. ROBSON FROM FRANK BERNDT, STANDARD 207

TEXT: Dear Mr. Nudd:

This responds to your letters concerning Federal Motor Vehicle Safety Standard No. 207, Seating Systems, as it applies to seat adjusters and an interpretation of that standard which this agency issued on July 14, 1983 to Mack Trucks, Inc. ("Mack"). The Mack letter discussed problems related to testing heavy-duty truck seat adjusters on pedestal seats (i.e., seats which include a suspension system which are mounted on a pedestal-like structure). I regret the delay in responding and hope the following d iscussion answers your questions.

Your letter asks five questions about a seating system consisting of a bucket seat mounted on top of a pair of seat adjusters which are, in turn, attached to the top of a pedestal. Seat belt anchorages are attached to the pedestal. You characterize the main issue posed by your inquiry as "whether the weight of the pedestal should be added to the weight of the seat when calculating the force to be applied to the seat back for testing the compliance of the seat adjusters when mounted between the seat an d pedestal." You included with your letter two figures depicting a test procedure you use for Standard No. 207.

By way of background information, the National Highway Traffic Safety Administration (NHTSA) does not grant approval of motor vehicles or motor vehicle equipment. Under the National Traffic and Motor Vehicle Safety Act, it is the responsibility of the m anufacturer to ensure that its vehicles or equipment comply with applicable requirements. The following represents our opinion based on the facts provided in your letter.

The seat adjustment requirements with which you are concerned are set forth in paragraph S4.2.1 of Standard No. 207. That paragraph requires seats subject to the standard to "remain in [their] adjusted position during the application of each force speci fied in S4.2." Paragraph S4.2 provides, in pertinent part:

S4.2 General performance requirements. When tested in accordance with S5., each occupant seat, other than a

side-facing seat or a passenger seat on a bus, shall withstand the following forces.

(a) In any position to which it can be adjusted--20 times the weight on [sic] the seat applied in a forward longitudinal direction; (b) In any position to which it can be adjusted--20 times the weight of the seat applied in a rearward longitudinal direction;

(c) For a seat belt assembly attached to the seat--the force specified in paragraph (a), if it is a forward facing seat, or paragraph (b), if it is a rearward facing seat, in each case applied simultaneously with the forces imposed on the seat by the seat belt assembly when it is loaded in accordance with S4.2 of @ 571.210; * * *

* * * * *

Before I address your specific questions, I would like to begin with a discussion of two related issues raised by your letter. The first concerns the "due care" responsibilities of a manufacturer to ensure that its vehicles or equipment comply with appl icable Federal motor vehicle safety standards. This issue arises in each of your questions asking us whether the test procedures you use are permitted by Standard No. 207.

As you know, each safety standard specifies the test conditions and procedures that the agency will use to evaluate the performance of a test vehicle or item of equipment under the appropriate requirements. The agency precisely follows each of those spe cified test procedures in conducting its compliance testing. However, it is important to keep in mind that the Vehicle Safety Act does not require a manufacturer to test its products in only the manner specified in a particular motor vehicle safety stand ard or even to test the product at all. A manufacturer may choose any means of evaluating its products to determine whether the vehicle or item of equipment complies with the requirements of that standard, provided, however, that the manufacturer exerci ses due care in ensuring that the vehicle or equipment will comply with Federal requirements when tested by the agency according to the procedures specified in the standard. In other words, the manufacturer must show that his chosen means of evaluating c ompliance is a reasonable surrogate for the test procedure specified by the standard.

In the event that the agency determines an apparent noncompliance exists with a vehicle or item of equipment tested in the agency's compliance program, the manufacturer must show the basis for its certification that the vehicle or equipment complies. Th e manufacturer may be subject to civil penalties unless it can establish that it exercised due care in its designing and manufacturing of the product and in its checking (through actual testing, computer simulation or otherwise) to ensure compliance, but nevertheless did not have reason to know that the vehicle or item of equipment did not in fact comply. Of course, notwithstanding the exercise of due care, the manufacturer would still be subject to the

recall responsibilities of the Vehicle Safety Act for its noncomplying vehicles or equipment.

The second issue relates to your understanding of the agency's 1983 letter to Mack concerning the test of seat adjusters. In that letter, NHTSA addressed the issue of how a heavy-duty truck seat mounted on a pedestal-like structure can be loaded consist ent with Standard No. 207. The agency said:

a manufacturer could establish due care through a combined test procedure which would load the seat adjusters and upper seat section to only 20 times the weight of those components to determine if the seat would remain in its adjusted position, and wh ich would load the seat as anchored to the vehicle structure to 20 times the weight of the entire seat, including the pedestal.

You have concluded from the above-quoted language that:

the first portion of the procedure ... establishes that the seat adjusters meet the requirement of Standard No. 207, S4.2. The second portion of the test then establishes the compliance of the seat structure from the seat adjusters down to the pedest al mounting in the vehicle to the general requirements of S1 that seat attachment assemblies and their installation meet the standard as well as the seat itself.

I would like to clear up any misunderstanding on your part that the "combined" test procedure discussed in the Mack letter in effect revised Standard No. 207's requirements by establishing a sequential two-part test procedure which excludes the upper sea t structure, as manufactured on the vehicle, from the general performance requirements of S4.2. I note that some of your questions relate to this apparent misunderstanding of the Mack letter. The primary issue addressed in the agency's letter to Mack w as whether a manufacturer could meet the due care requirement when it tests its pedestal seats by using a procedure different from that specified in the standard. The interpretation did not exclude seat adjusters from the requirements of S4.2, as you ap pear to believe, or provide for a secondary test applying only to "the seat adjusters down to the pedestal mounting." Under Standard No. 207, the entire seat, including the upper seat structure and pedestal, is subject to the general performance requirem ents and force applications specified in S4.2. The seat adjusters must remain in their adjusted position during these force applications. (S4.2.1.)

In light of your letter, the agency has re-examined its statements in the Mack letter concerning whether a manufacturer could establish due care through the sequential two-part test procedure described therein. The procedure discussed in the letter to M ack for demonstrating compliance with Standard No. 207 subjects a seat specimen to a procedure different from that specified in the standard, with somewhat different load applications. Upon reexamination, we have determined that the real issue presented to the agency was not a question of due care (since the agency could not have made such a finding due to the fact that not every seat

passing the test described by Mack can meet the standard's requirements when tested according to the procedures in the standard). Instead, the real issue concerned the appropriateness of Standard No. 207's current requirements as applied to pedestal seats. In its letter to the agency, Mack said that its seat adjuster should not be subject to forces generated by the pedestal structure since the adjuster would experience the force of only the upper seat section in a crash. (You raised a similar iss ue in your letter.) In responding to Mack, the agency agreed that with pedestal-type seats, "the adjusters and upper seat section would never experience a loading of 20 times the weight of the entire seat in an actual crash." (Emphasis in text.) Acknowle dging an apparent discrepancy between the requirements of the standard for pedestal seat adjusters and real world crash conditions, the agency should have conducted rulemaking to determine whether Standard No. 207's requirements could be made more approp riate.

In light of the issues raised by your letter, we plan to initiate rulemaking on Standard No. 207's requirements for pedestal-type seats. Specifically, we will consider, among other issues, whether Standard No. 207 should be amended to adopt a modified test for pedestal seats similar but not necessarily identical to that described in the agency's letter to Mack. Until the issue is resolved by rulemaking, we will not take enforcement measures against a manufacturer who certifies that its seat adjusters conform to the requirements of S4.2.1 when that declaration is based on test results obtained from the test procedure described in the agency's letter to Mack.

Our statements in the preceding paragraph should not be misconstrued as implying, however, that your use of the two procedures you describe in your letter, which you said are modifications of the Mack procedure, establishes conformance to the standard. I will discuss this more fully below in answer to your five questions.

Your first question asks about the test method you use (depicted in your "figure 1") to evaluate the conformance of your seat adjusters with paragraphs S4.2(c) and S4.2.1. Your specific question is: "Does a load applied as in figure 1 satisfy the requir ements of Standard No. 207 concerning the seat adjusters remaining in their adjusted position?"

With regard to the current requirements of Standard No. 207, the answer to your question is no. Standard No. 207 requires seats to (a) withstand the specified forces of S4.2, and (b) remain in their adjusted position during application of those forces, and currently has no separate test for seat adjusters. Instead, the seat must remain in its adjusted position during the one test specified by the standard. A seat that fails to conform to Standard No. 207 when tested by the agency according to the sta ndard's test procedures is considered an apparent noncompliance. A noncompliant seat is not converted into a complaint one "satisfy[ing] the requirements of Standard No. 207" simply because it has "passed" a test conducted by the manufacturer.

However, in view of the agency's Mack letter and our plans to consider amending Standard No. 207's requirements for pedestal seat testing, we will interpret your question to ask further whether your figure 1

procedure is consistent with the test procedure described in the agency's Mack letter. With one change, the test procedure you use as shown in figure 1 is consistent with the procedure outlined in the agency's Mack letter for testing pedestal seats.

In order to be fully consistent with the Mack procedure, the lower seat structure (i.e., the pedestal) should be loaded to 20 times the weight of that component and the load should be applied at the pedestal's center of gravity simultaneously with "force D" in figure 1 (the force 20 times the weight of the seat belt anchorages, seat adjusters and upper seat frame) at the center of gravity of those components, and "force E" (the Standard No. 210 seat belt anchorage loads).

You should note also that while figure 1 appears to generally conform to the agency's statements in the Mack letter with regard to the proportionate load applied to the upper seat structure, Standard No. 207 requires the adjusters to sustain the specifie d forces in any position that is usable in actual operations. Therefore, the seat adjusters should be able to sustain the applied loads in not only the "full rearward" position depicted in figure 1, but also in all other usable positions.

Your next question referred to a test procedure depicted in your "figure 2" for testing seats to the performance requirements of S4.2. The test procedure depicted in figure 2 applies a force 20 times the weight of the upper seat structure and pedestal t hrough the center of gravity of the entire seat structure, together with the seat belt anchorage load of 5,000 pounds specified by Standard No. 210. The seat adjusters are shown in figure 2 as welded or locked together. You ask whether "the seat adjust er, having passed figure 1 loads [can be welded or] locked for the second part of the test . . ." (The agency's letter to Mack made no reference to welding or locking the seat adjusters.)

The answer to your question is that when NHTSA tests a seat such as that described in your letter, the agency will not weld or lock the seat adjusters. As discussed above, NHTSA does not prohibit a manufacturer from using any test procedure in its determ ination of compliance. However, whether a manufacturer could establish due care through the figure 2 test procedure cannot be determined prior to and apart from an actual enforcement proceeding. Among other things, the manufacturer would have to show i ts reasons for concluding that the test was a reasonable surrogate for the agency's complaince test specified in Standard No. 207. Since welding or locking seat adjusters artificially creates a condition not representative of seat adjusters in the real world, we urge that this reasoning be carefully considered and developed.

Your third question asks whether the test procedures shown in figures 1 and 2 establish due care. We have answered this question in our responses to your first two questions and will not repeat our discussion here.

In your fourth question, you asked "can the 20 times seat weight load as required in Standard No. 207 S4.2 be applied at the center of gravity of

the seat as more [sic] accurate alternative to application from a point outside the seat frame in the horizontal plane of the seat's center of gravity?

We interpret your question to ask about either: (1) a manufacturer's obligation to test its seats as specified in Standard No. 207; or (2) the adequacy of the standard's present test procedure for pedestal seats. With regard to the first issue, as expla ined above, you are permitted to apply the S4.2 loads at the seat's center of gravity if, in the event that the agency tests according to the standard and finds a noncompliance, you can demonstrate that you did not have reason to know, in the exercise of due care, that the seat was not in compliance. In other words, the decision to rely upon your test instead of the test in the standard must be shown to be an exercise of due care.

As to the second issue, your letter did not demonstrate why the manner of applying the loads specified in Standard No. 207 should be changed. In your letter, you said the seat frame could significantly deflect as a result of forces acting on the frame t hat are higher than those required by the standard "[i]f the seat frame is excessively flexible and the braces [specified by the standard for testing seats to S4.2 were] not used." (Emphasis added.) It is unclear to us how your statement supports a chang e to the test procedures of S5 of the standard. Presumably, the cross-member placed on the seat in the horizontal plane of the seat's center of gravity ensures that the applied force remains in the horizontal plane and that the larger moment you observe d on the seat attachment would not occur. In addition, your suggestion raises practicability issues since the center of gravity of a tested seat could vary over the duration of the test.

If you believe Standard No. 207's test procedures should be amended as described in your fourth question, you may submit a petition for rulemaking to NHTSA in accordance with the procedures set forth in Title 49 of the Code of Federal Regulations, Part 5 52. I have enclosed an information sheet explaining how you can obtain copies of this and any other NHTSA regulation.

Your fifth and final question relates again to your figures 1 and 2. You ask:

Can the seat belt load in figure 1 be eliminated based on the reasoning that an identical floor mounted seat and belt anchorage are not required to sustain the seat belt load and that the second part of the test, figure 2, subjects the seat assembly t o the load to check the seat attachment assembly (pedestal) for compliance with Standard No. 207? . . . [A] pedestal mounted seat assembly should be permitted to have the tracks welded or locked together while the loads of 4.2(c) check the seat attachme nt assemblies to the general requirement of Standard No. 207.

As explained above, if you decide to eliminate the seat belt load from the forces applied to your seats, you must ensure that the seat will be able to meet the requirements of Standard No. 207 when tested in

accordance with the procedures specified in the standard. The agency is unable to make a determination outside the context of an enforcement proceeding whether your decision to eliminate the seat belt load or to weld certain components together conf orms to the due care requirement. However, we recommend that you reconsider your reasons for eliminating the seat belt load--i.e., that the load is unnecessary because "an identical floor mounted seat and belt anchorage are not required to sustain the s eat belt load."

Standard No. 207 is intended to ensure that seats and their attachments are strong enough not to fail as a result of "forces acting on them as a result of vehicle impact." (S1) A seat that has no seat belt anchorage attached to it will not see the load f rom the seat belt in a crash. Accordingly, since the seat will not be loaded in a crash by the forces generated by the safety belt, it is not imperative that the seat be capable of withstanding the load from the belt. Thus, the seat need not be subjecte d to the seat belt anchorage loads of Standard No. 210.

On the other hand, a seat with seat belt anchorages attached thereto will be subject to forces generated by the belted occupant in a crash. It is necessary, therefore, that the seat be capable of providing occupant protection by remaining in place and w ithstanding the forces imposed on it in a crash, including that from the safety belt.

I hope this information answers your questions. Please contact my office if you have further questions.

Sincerely,

ID: nht95-7.59

TYPE: INTERPRETATION-NHTSA

DATE: December 12, 1995

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

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

TITLE: FMVSS 210 Compliance - 1995 Cirrus

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

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

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

As you know, the non-compliance found by OVSC staff in July was the result of a laboratory test that placed the pelvic body block 4 inches forward from the seat back. Our tests are conducted with the block positioned against the seat back. We advised OVSC staff in September that this alteration in the pelvic body block location significantly altered the stresses imposed on the rear seat anchorages as compared with the stresses imposed when the body block is positioned against the seat back. Since neither the procedures specified in the standard nor the published laboratory test protocol specify the location of the body block, our compliance test represents a valid demonstration of compliance with the standard and should be accepted by OVSC.

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

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

Attachments (2)

Enclosures

SEAT BELT ANCHORAGE (Summary Report)

Test Information

Test Number: 21095137 Test Type: FMVSS 210 Dev Date: 12/8/95 Time: 13:40:50 Technician/Engineer G. D. Redd/H. Farrah Model Year & Body: 1995 JA Body Component Description: 3-Passenger Rear Bench Seat; VIN # 1B3EJ56C1TN100005 Comments: Weldnuts For O/B Anchors, Anchor Brkts Str. Rrwd., Trailing Arm Brkts.

Installed, Lap Belt Body Block Against Seatbacks, Lab Seat Belts Were Used. Units: English Sample Rate (Hz): 50 Sampling Duration (sec): 70

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

(Charts omitted.)

MEMORANDUM

December 13, 1995

TO: Kenneth Weinstein, Esq.

FROM: Lewis Goldfarb, Esq.

RE: FMVSS 210 Compliance

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

A. The Chrysler Cirrus LX Complies with FMVSS 210.

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

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

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

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

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

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

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

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

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

Chrysler Corporation v. Department of Transportation, 472 F.2d 659, 675-676 (6th Cir. 1972) (two footnotes omitted) (quotation in first paragraph is from the House Report accompanying enactment of the National Traffic and Motor Vehicle Safety Act, H.R. 1776, 89th Cong. 2d Sess. 1966 at p. 16).

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

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

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

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

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

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

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

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

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

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

C. Conclusion.

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

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

ID: nht95-5.2

TYPE: INTERPRETATION-NHTSA

DATE: December 12, 1995

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

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

TITLE: FMVSS 210 Compliance - 1995 Cirrus

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

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

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

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

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

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

Attachments (2)

Enclosures

SEAT BELT ANCHORAGE (Summary Report)

Test Information

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

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

(Charts omitted.)

MEMORANDUM

December 13, 1995

TO: Kenneth Weinstein, Esq.

FROM: Lewis Goldfarb, Esq.

RE: FMVSS 210 Compliance

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

A. The Chrysler Cirrus LX Complies with FMVSS 210.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

C. Conclusion.

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

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