ID: nht74-5.39

DATE: 02/01/74

FROM: AUTHOR UNAVAILABLE; Lawrence R. Schneider; NHTSA

TO: Mrs. L. M. Thompson

TITLE: FMVSS INTERPRETATION

TEXT: I would like to thank you for your interest in the safety benefits of the interlock system and for forwarding the Seattle newspaper advertisement which offers a method to bypass the seat belt interlock.

The interlock standard only requires that new vehicles be equipped with required safety equipment. Therefore a purchaser may have the system modified to accommodate circumstances, such as physical incapacity, which makes use of the belts unwise or inconvenient.

The advertisement of a system to circumvent the standard, however, is a different matter, and whether it is legally permitted is a conclusion which the courts will have to determine. This agency is reviewing the legal remedies available which might permit removal of such a product from the market. Having promulgated the interlock option as part of the occupant crash protection standard, whose validity was sustained in court, we are committed to taking all possible actions to insure its effectiveness.

January 8, 1974

Dept. of Transportations U.S. Government Washington, D.C.

Gentlemen:

I noticed this ad in a newspaper and(Illegible Word) if such an operation is legal.

If my memory is accurate I believe the car manufacturer were ordered by the Federal Govt. to install interlock(Illegible Word). If this is true, then wouldn't it be an illegal act for anyone to tamper or modify it?

Is there anything you can do to prevent this?

Sincerely,

Mrs. L. M. Thompson 9624 - 4th St N.E. Everett,(Illegible Word) 98205

TO ALL 1974 AUTO OWNERS or PROSPECTIVE OWNERS

Are you aggravated by this safety belt ignition interlock system that forces you to perform a certain sequence before the car will start?

You, the owner of a 1974 auto may modify the interlock system so that you can be sure, in an emergency, or any other time, that your car will start even if some part of the interlock system malfunctions. This modification also allows you to buckle your seat belt, or not, as it pleases you.

There is a simple way that any one can easily make the modification to his own 74 auto and bypass the interlock.

This information is available (with complete simple instructions) in a report that may be purchased for the low sum of $ 4.00 with satisfaction guaranteed. Enclose cash, check or m.o. and specity make, model, and engine.

ORDER YOUR REPORT CASCADE HOUSE Box 2170-A Renton, Washington 98055

Seattle Post(Illegible Word)

12-30-73

ID: 2515y

Mr. William D. Falcon
Commission on Accreditation
for Law Enforcement Agencies, Inc.
4242B Chain Bridge Rd.
Fairfax, VA 22030

Dear Mr. Falcon:

This responds to your letter to our agency concerning your law enforcement standard (71.4.1) for an interior partition you call a "safety barrier." I regret the delay in responding.

The copy of 71.4.1 you provided states: "Vehicles used primarily for transporting prisoners (80 percent of their use) should have the driver separated from the prisoner by a safety barrier." The "commentary" to 71.4.1 states that, "The safety barrier may be of wire mesh or heavy gauge plastic to prevent the prisoner from having access to the driver's compartment ..." Mr. Steven Crowell wrote you last year suggesting that this commentary should be revised to state: "The safety barrier must be one which has had a label or tag affixed to it which certifies compliance with all applicable" Federal motor vehicle safety standards (FMVSS's). Mr. Crowell believes such certification is required by Federal law, and apparently bases this on our September 13, 1985 letter to him. You ask whether his understanding is correct.

Mr. Crowell is not entirely correct in his understanding of our certification requirements. Our regulations do not generally require materials in safety barriers to be certified, except for glazing materials in barriers. Standard No. 205, Glazing Materials, applies to all glazing installed in a motor vehicle, including the glazing used for an interior partition. The standard does not require labels or tags to certify the compliance of the glazing material with it. However, the standard does require that glazing material in a barrier must bear a mark to certify compliance with the standard. Standard No. 205 is the only FMVSS that applies directly to interior partitions (and only if the partition contains glazing material). There is no other FMVSS to which the partition itself would be certified.

Since glazing material in safety barriers need not be certified by labels or tags, and because safety barriers made from materials other than glazing materials are not certified under Federal law, we believe 71.4.1's seeking to require affixing a certification label or tag on the barriers may engender confusion about NHTSA's requirements. We note also that there is no Federal requirement for persons to certify modifications made to used vehicles. Therefore, we recommend against 71.4.1's seeking to require certifications in the form of labels or tags affixed to safety barriers installed in new or used vehicles.

However, we agree with Mr. Crowell that safety barriers should be installed in a safe manner, and believe that our regulations promote this to the extent possible under the Vehicle Safety Act. If a new vehicle is altered by the installation of a partition as original equipment (prior to the vehicle's first sale to a consumer), the person making the installation would be required by 49 CFR Part 567, Certification, to certify (by attaching a label to the vehicle) that the vehicle complies with all applicable FMVSS's. These FMVSS's include the standards for head restraints (Standard 202), interior impact protection (201), rearview mirrors (111), and crash protection (208).

We know of no reason why a suitable partition can't be developed which could be placed in a vehicle equipped with head restraints and shoulder belts. Further, it does not seem to be a difficult matter for the barrier to be installed so that the vehicle would meet Standard 111's requirements for rearview mirrors.

On the other hand, installation of the barrier could interfere with the compliance of the back of the front seat with Standard 201 (copy enclosed). Paragraph S3.2 of that standard sets energy-absorption requirements for the back of the front seat to protect the heads of rear seat occupants thrown forward in a crash. The partition design should be capable of meeting Standard 201's requirements for energy absorption and should not be hazardous to head impact.

If the safety barrier were installed on a used vehicle by a vehicle manufacturer, distributor, dealer or repair business, the installer would be subject to a civil penalty of $1,000 per violation if he knowingly rendered inoperative the compliance of the vehicle with any safety standard. This prohibition is contained in 108(a)(2)(A) of the Vehicle Safety Act.

The prohibition of 108(a)(2)(A) does not apply to individual vehicle owners who alter their own vehicles. Thus, under Federal law, they may install or remove any items of motor vehicle equipment regardless of its effect on compliance with Federal motor vehicle safety standards.

Manufacturers of motor vehicle equipment, such as the safety barrier you described, also have responsibilities under the Vehicle Safety Act regarding safety defects and noncompliances in their products. Under 151 et seq., they must notify purchasers about safety-related defects and noncompliances and remedy the product free of charge. The Safety Act imposes a civil penalty of $1,000 per violation upon any manufacturer who fails to provide notification of or remedy for a defect or noncompliance in its motor vehicles or motor vehicle equipment. In view of the fact that a police department may alter its own vehicles without regard to 108(a)(2)(A), we believe Mr. Crowell might be suggesting that 71.4.1 recommend that the safety barrier should be installed in a manner that does not negatively affect the compliance of the vehicle with applicable FMVSS's. NHTSA generally encourages vehicle owners not to remove safety equipment or otherwise alter their vehicles if the modification would degrade the safety of the vehicle. Therefore, while we do not agree with Mr. Crowell that you should seek to require affixed certification labels or tags for barriers, we agree that installation of the barrier should be done in a manner that avoids degrading the overall safety of the vehicle.

I hope this information is helpful. Please let me know if you have any further questions.

Sincerely,

Stephen P. Wood Acting Chief Counsel

Enclosure

/ref:201#202#205#VSA d:5/3l/90

ID: aiam5008

"Dear Mr. Guertin: Your letter of March 30, 1992 to former Secretar Skinner was referred to this agency for reply. You expressed concern that you had not received a response to an earlier letter, addressed to the National Highway Traffic Safety Administration (NHTSA), concerning the use of vans to transport school children. I regret that you did not receive a response to your previous letter. You indicated that you are a school teacher in Florida and asked us to verify your understanding of why you cannot use nine- to 15-passenger vans to transport school children. You stated that, at the present time, seven-person rifle teams, eight-person cheerleader squads, 11-person science clubs, and the like are prohibited from being transported in vans and must instead use 'gas- guzzling, 37-passenger school buses.' Since these clubs must raise their own gas money, you stated that they could get 'more trips for the buck' if they could use vans. You indicated that you were permitted to use vans prior to a crash about seven years ago in which a cheerleader was killed. You understand that van roof standards were apparently not what they should be and that NHTSA then 'came forward with the need for `acceptability of crash-worthy tests' for vans,' placing the cost of developing and performing such tests on manufacturers. You suggested that van manufacturers opted out of the school van business because they were reluctant to fund the new tests. Your understanding is not quite correct, and I am pleased to have this opportunity to clarify Federal law as it relates to school buses. By way of background information, NHTSA has the authority under the National Traffic and Motor Vehicle Safety Act to issue motor vehicle safety standards that apply to the manufacture and sale of new motor vehicles, in order to reduce the number of fatalities and injuries that result from motor vehicle crashes. Under NHTSA's regulations, vans are generally classified as either multipurpose passenger vehicles (MPV's) or buses. The MPV category includes vans which carry 10 persons or less, vans which carry more than 10 persons are buses. Under the agency's definitions, a 'school bus' is a type of bus sold for transporting students to and from school or school-related events. All MPV's and buses are required to meet Federal motor vehicle safety standards. However, in the legislative history of the School Bus Safety Amendments of 1974, Congress stated that school transportation should be held to the highest level of safety. Accordingly, NHTSA has issued special Federal motor vehicle safety standards applicable to all new school buses. Like all safety standards, NHTSA's school bus standards impose obligations on the manufacturers and sellers of new motor vehicles, not upon the subsequent users of these vehicles. It is a violation of Federal law for any person to sell any new vehicle that does not comply with all school bus safety standards if the vehicle capacity is more than 10 persons, and if the seller is aware that the purchaser intends to use the vehicle as a school bus. On the other hand, without violating any provision of Federal law, a school may use a vehicle which does not comply with Federal school bus regulations to transport school children. This is so because the individual States, not the Federal government, have authority over the use of vehicles. However, I would like to call your attention to a guideline that NHTSA has issued under the authority of the Highway Safety Act of 1966. That Act authorizes the agency to issue guidelines for states to use in developing their highway safety programs. NHTSA issued Highway Safety Program Guideline 17, Pupil Transportation Safety, to provide recommendations to the states on various operational aspects of their school bus and pupil transportation safety programs. Guideline 17 recommends that any vehicle designed for carrying more than 10 persons which is used as a school bus comply with all safety standards applicable to school buses at the time the vehicle was manufactured. In conclusion, it is not a violation of Federal law for your school to use vans for transportation of school children, however, use of these vehicles may be restricted by Florida law. I must emphasize NHTSA's position that a vehicle meeting Federal school bus regulations is the safest way to transport students. I strongly recommend that you give your most careful consideration to the possible consequences of transporting school children in vehicles that do not comply with those standards. I hope this information will be helpful to you. If you have any further questions regarding this matter, please feel free to contact Walter Myers of this office at this address or by telephone at (202) 366-2992. Sincerely, Paul Jackson Rice Chief Counsel Enclosure";

ID: aiam2630

Dear Governor Straub: The purpose of this letter is to express this agency's views o legislation recently enacted by the State of Oregon which appears to be preempted by Federal legislation of the same subject matter.; Specifically, we understand that ORS 483.404 was amended in June 197 to require that headlamps on motor vehicles registered in Oregon meet the standards established for such under the National Traffic and Motor Vehicle Safety Act of 1966 or; >>>'... the United Nations Agreement concerning the Adoption o Approval and Reciprocal Recognition of Approval for Motor Vehicle Equipment and Parts, done at Geneva on 20 March 1958, as amended and adopted by the Canadian Standards Association (CSA Standard 106.2) or both.'<<<; Under 15 U.S.C. 1392(d): >>>'Whenever a Federal motor vehicle safety standard established unde this title is in effect, *no State* or political subdivision of a State *shall have any authority* either *to establish*, or to continue in effect with respect to any motor vehicle or item of motor vehicle equipment *any safety standard applicable to the same aspect of performance of such vehicle or item of equipment which is not identical to the Federal standard.' [Emphasis added.]<<<; Pursuant to 15 U.S.C. 1392(a) [Section 103(a) of the National Traffi and Motor Vehicle Safety Act of 1966] Federal Motor Vehicle Safety Standard No. 108, *Lamps, Reflective Devices, and Associated Equipment* (49 CFR 571.108), has been established, effective January 1, 1972, as the Federal standard for lighting devices both as original and replacement equipment on motor vehicles.; The United Nations Agreement, and this agreement as amended by th Canadian Standards Association, permits the use of motor vehicle headlamps that are not of sealed beam construction and whose candlepower output may exceed 75,000. Further, it does not require that the headlamps be mechanically aimable. Standard No. 108, on the other hand, requires that headlamps on passenger vehicles be of sealed beam construction, imposes a limit of 75,000 candlepower on all but one type of headlamp, and specifies that all headlamps be mechanically aimable. Thus, the United Nations Agreement, as amended by the Canadian Standards Association, does not specify requirements for headlamps that are identical to those of Standard No. 108. This means that this part of the amendment to ORS 483.404 is, in our opinion, preempted by 15 U.S.C. 1392(d), and of no legal effect.; As a consequence, it is our conclusion that any person in Orego manufacturing for sale, selling, offering for sale, introducing or delivering for introduction in interstate commerce, or importing in the United States through the State of Oregon any lighting equipment that does not conform to Standard No. 108, in reliance upon ORS 483.404, could be subject to civil penalties for apparent violations of 15 U.S.C. 1397(a) (1) (A) in an amount up to $800,000 (15 1398(a)), and to a restraining order (15 U.S.C. 1399(a)). There is no preemption, however, of your State's right to specify requirements for lighting equipment not currently included in Standard No. 108 (*e.g.* foglamps).; Section 1392(d) and the Act's preemptive effect have been invariabl upheld. (See *e.g. Chrysler Corp. v. Malloy,* 294 F. Supp. 524 (U.S.D>C. Vt. 1968), *Chrysler Corp. v. Tofany*, 419 F.2d 499 (C.C.A. 2 1969)). We would also observe that the interpretation by an administering agency of its own statutes and regulations, has been viewed by courts as 'of controlling weight.' (*Thorpe v. Housing Authority of Durham* 393 U.S. 268 (1969) quoted with approval in *Chrysler Corp. v. Tofany, supra*, at 512.); We would appreciate the view of the State of Oregon on this subject Questions on it may be referred to the Chief Counsel of this agency, Joseph J. Levin, Jr. The Agency's position on this matter was presented previously in a letter dated May 27, 1977, From Mr. Levin to the Administrator of the Oregon Senate Transportation Committee. The Committee, however, chose to disregard our opinion, when it considered Oregon House Bill 2998 and recommended its passage.; Sincerely, Joan Claybrook

ID: aiam4444

"Dear Mr. Perkin: This responds to your letter expressing concern abou a statement in one of our interpretation letters, which you believe could be read as condoning the practice of rebuilding wheels by processes which include heating and welding. As discussed below, our letter's reference to remanufacturing wheels was made only to serve as an illustrative example and was not intended to address either the safety of such processes or the relevant regulations of other Federal agencies. The interpretation letter in question is one that we sent on September 22, l986, to Steven R. Taylor, responding to a request concerning regulations that apply to manufacturers of reconditioned brake drums. The letter included the following paragraph: NHTSA has in the past considered the issue of what types of operations make a person a manufacturer with respect to retreaded tires and remanufactured wheels. A person who retreads tires is considered to be a manufacturer under the Vehicle Safety Act. The retreading process involves significant manufacturing operations, which do not differ substantially from those of manufacturing new tires. By contrast, a person who remanufactures wheels is not considered to be a manufacturer under the Vehicle Safety Act. The process of remanufacturing wheels consists of such things as straightening, re-welding parts, and repairing cracks by welding. These types of actions are not significant manufacturing operations, but instead are the type of operations commonly performed in repair shops. You stated that all of the things mentioned in our letter, i.e., straightening, re-welding parts and repairing cracks by welding, are specifically prohibited by the OSHA standard applicable to truck wheels, both multi and single piece. You also stated that the 'out of service' criteria adopted by the Bureau of Motor Carrier Safety mandate that a vehicle be placed out of service if welded repairs are found on certain disc wheels. According to your letter, any significant changes made after the manufacture of a steel truck wheel, especially involving bending, heating or welding, carry a significant risk of rendering the wheel unsafe. As is indicated from the context of our September 22, l986 interpretation letter, the reference to remanufacturing wheels was made solely for the purpose of providing an illustrative example and was not intended to address either the safety of such processes or their permissibility or impermissibility under the relevant regulations of other Federal agencies. I would note that NHTSA has long taken the position that remanufactured wheels are considered to be used wheels instead of new wheels for purposes of Federal motor vehicle safety standards. See, for example, our November 28, l973 letter addressed to Mr. L. Clinton Rich and February 7, l983 letter to Mr. H. J. Lindekugel (copies enclosed). Again, however, these letters do not purport to address the safety of remanufacturing wheels or the relevant regulations of other Federal agencies. We appreciate your bringing to our attention your concern about the safety of remanufactured wheels. Copies of this correspondence are being placed in the public docket. Sincerely, Erika Z. Jones Chief Counsel Enclosures";

ID: aiam1792

Dear Mr. Washington: This is in reply to your letter of January 24, 1975, to the Office o Chief Counsel asking whether your proposed 'Autocycle' is a 'motorcycle' for purposes of the Federal motor vehicle safety standards.; The Autocycle has a steerable front wheel and a rear traction whee arranged in tandem like a conventional two-wheeled motorcycle. However, it also has a pair of smaller side wheels that are lowered to the ground to assist in the stabilization of the vehicle at low speeds and while standing still. These auxiliary wheels, as we understand it, retract at moderate and high speeds.; A 'motorcycle' is a 'motor vehicle with motive power having a seat o saddle for the use of the rider and designed to travel on not more than three wheels in contact with the ground' (49 CFR 571.3(b)). Although you have not specified the low speeds at which the auxiliary wheels are deployed, we have concluded on the basis of the information you have provided that the Autocycle is essentially designed to travel on two wheels in contact with the ground, and that the auxiliary wheels serve only the limited function of providing stabilization at low speeds. Therefore, the Autocycle is a 'motorcycle' for purposes of compliance with the Federal standards.; The proposed redefinition of 'motorcycle (39 FR 15046, April 30, 1974 would exclude certain three-wheeled vehicles and thus does not affect the Autocycle.; Sincerely, James C. Schultz, Acting Chief Counsel

ID: aiam4644

"Dear Mr. Duerr: This is in response to your letter requestin Department of Transportation 'approval' of a fitting to be used in air brake systems in conjunction with your company's product, a driveline brake retarder. I apologize for the delay in this response. Your letter explained that your company's brake retarder is designed to be attached to the air brake system on trucks or buses by means of a fitting, and enclosed a sample of the fitting you plan to use. You asked for DOT approval of the fitting. As explained below, whether the fitting and associated air hoses are subject to the Federal Motor Vehicle Safety Standards (FMVSS) depends upon how the fittings are attached to the vehicle's air brake system. This agency has the authority under the National Traffic and Motor Vehicle Safety Act of 1966 to issue safety standards applicable to new motor vehicles and items of motor vehicle equipment. We have exercised this authority to establish Standard No. 106, Brake Hoses (49 CFR 571.106, copy enclosed), which applies to motor vehicle brake hoses, brake hose assemblies, and brake hose end fittings. Your letter did not provide sufficient information for us to offer an opinion as to whether or not the air lines and end fittings used with your product would be considered 'brake hoses' and 'brake hose end fittings' subject to the requirements of Standard No. 106. It has been NHTSA's long-standing position that accessory air lines and end fittings, such as those used in your product, are 'brake hoses' and 'brake hose end fittings' only if a failure of the line or fitting would result in a loss of pressure in the vehicle's brake system. (See the enclosed June 5, 1987 letter to Albert Schwarz, and the August 3, 1984 letter to Terry Teeter). Accordingly, if a failure of the accessory lines or fittings used with your product could result in a loss of pressure in the brake system, the hoses and fittings are subject to all the provisions of Standard No. 106. In this case, the Safety Act specifies that no person shall 'manufacture for sale, sell, offer for sale, or introduce or deliver for introduction in interstate commerce, or import into the United States' any of those hoses or end fittings unless those hoses and end fittings comply with all of the applicable requirements in Standard No. 106. NHTSA has no authority to certify, endorse, or approve in advance any motor vehicles or motor vehicle equipment, including the hoses and end fittings used for this product. Instead, under the Safety Act, the manufacturer is responsible for certifying that its products meet all applicable safety standards. The manufacturer's certification need not be based on actual tests, the only requirement is that the manufacturer exercise due care when making the certification. Once your company has determined that these hoses and end fittings comply with the requirements of Standard No. 106, the Standard requires you to mark these products with the symbol 'DOT' to show your company's certification of compliance. This agency enforces the requirements of Standard No. 106 by randomly purchasing brake hoses and end fittings that have been certified as complying with Standard No. 106. The certified products are then tested by the agency according to the procedures specified in the standard. If the products pass these tests, no further actions are taken. On the other hand, if the accessory air line running to your product is isolated from the air brake system by means such as a check valve, the hoses and fittings used with your product are not subject to the requirements of Standard No. 106. In this case, your company would not be required to certify that the hoses and fittings used with your product comply with the applicable requirements of Standard No. 106. You would, however, be considered a 'manufacturer' of motor vehicle equipment for the purposes of the Safety Act and our regulations. The Safety Act specifies that if either your company or this agency determines that a safety-related defect exists in your product, your company as the manufacturer must notify purchasers of the safety-related defect and must either: (1) repair the parts so that the defect is removed, or (2) replace the parts with identical or reasonably equivalent parts which do not have a defect. Whichever of these options is chosen, the manufacturer must bear the full expense and cannot charge the owner for the remedy if the equipment was purchased less than 8 years before the notification campaign. Similarly, if this product were subject to Standard No. 106, your company would be required to notify owners and remedy without charge to those owners any noncompliance of your product with the requirements of Standard No. 106, as well as remedying any safety-related defect. For your information, I have enclosed a copy of an information sheet for new manufacturers of motor vehicles and new motor vehicle equipment. This sheet gives a brief description of our regulations and explains how to obtain copies of those regulations. I hope this information is helpful. Please feel free to contact this office if you have any further questions or need additional information. Sincerely, Stephen P. Wood Acting Chief Counsel Enclosures";

ID: nht89-1.9

TYPE: INTERPRETATION-NHTSA

DATE: 01/30/89

FROM: MAUREEN ANDREWS

TO: ROBERT C. SMITH -- CONGRESS

TITLE: NONE

ATTACHMT: ATTACHED TO LETTER DATED 03/24/89 FROM DIANE K. STEED -- NHTSA TO ROBERT C. SMITH, REDBOOK A33, STANDARD 222; LETTER FROM ROBERT C. SMITH TO SAMUEL K. SKINNER, DATED 02/28/89

TEXT: Dear Congressman Smith,

I am writing to you because I am concerned about the safety of children while they are on the school bus. I would like to find out if anything is being done to make it a requirement to have seat belts on the school bus.

As you may know, last week a 15 year old boy was killed on a school bus in Manchester. That is such a tragic loss of life. Maybe if there was some kind of a monitoring system that could alert the driver that someone's seat belt wasn't fastened, then perhaps we could avoid such awful tragedies in the future.

It would be hard for some children to get use to wearing the seat belts, but if it was a requirement, they would eventually get use to it. A lot of children are already use to wearing seat belts when they get in their own cars -- why not the school b us also?

Another concern I have is the number of children allowed to sit per seat. I have been told that in Derry they are allowed to sit three students per seat. Many times my son comes home and tells me how he has to sit on the edge of his seat because ther e isn't enough room (or because the girls push him off). If some of the children are not sitting correctly in their seat, then there will be more serious injuries or deaths in the future especially if the driver has to make a sudden stop or swirve out o f someone's way.

I am really worried about the safety of children on the school bus. Would you let me know if anything is being done to correct this problem?

Could you also tell me just how a parent can go about finding out what parents rights are where the school system is concerned?

Thank you for any help you can give me.

ID: 3141o

Mr. William E. Lawler
Specifications Manager
Indiana Mills & Manufacturing, Inc.
18881 U.S. 31 North
Westfield, IN 46074

Dear Mr. Lawler:

This responds to your request for an interpretation of Standard No. 208, Occupant Crash Protection (49 CFR /571.208). Specifically, you noted that a final rule published July 6, 1988 (53 FR 25337) upgrades the safety belt requirements for heavy vehicles manufactured on or after September 1, 1990. One of the new requirements for those safety belts is that, if an automatic locking retractor (ALR) is used, that retractor "shall not retract webbing to the next locking position until at least 3/4 inch of webbing has moved into the retractor." Standard No. 208 sets forth this requirement in section S4.3.2.2 for trucks and multipurpose passenger vehicles with a gross vehicle weight rating of more than 10,000 pounds, and in section S4.4.2.2 for buses. You asked whether an ALR that depended on a mechanism external to the retractor itself to prevent it from retracting webbing to the next locking position would comply with S4.3.2.2 and S4.4.2.2. The answer to your question is no.

The agency explained in detail the reasons why the final rule did not adopt the proposed requirement for all heavy vehicle safety belts to be equipped with emergency locking retractors only; see 53 FR 25338-25340. The proposed prohibition of ALR's in heavy vehicles was based on the tendency of current designs of ALR's to become progressively tighter around an occupant as the vehicle travels over potholes or other jarring surfaces of the road. However, NHTSA acknowledged in the final rule that some newer designs of ALR's do not exhibit this tendency. In response to these newer designs of ALR's, the agency said:

Therefore, this rule has been expanded from the proposal, in order to permit ALR's with anti-cinch capability to be installed in heavy vehicles. For the purposes of this rule, anti-cinch capability is determined by examining the working of the retractor after it has locked after the initial adjustment of the safety belt. 53 FR 25339. This language explicitly states that the "working of the retractor" is what determines whether an ALR on a heavy vehicle belt complies with the requirements of Standard No. 208. Since the focus is exclusively on the "working of the retractor," an ALR must comply with these requirements without depending upon any external mechanisms to assist it. Any ALR that cannot satisfy these requirements without the assistance of external mechanisms would not comply with Standard No. 208's requirements for ALR's on heavy vehicles.

This conclusion is reinforced by the agency's statement that:

"NHTSA believes it is appropriate to measure compliance with this new 3/4 inch minimum webbing travel requirement for ALR's in Standard No. 208 under the same conditions currently specified for determining compliance with the existing 1-inch maximum webbing travel requirement for ALR's in Standard No. 209." 53 FR 25340.

The 1-inch maximum webbing travel requirement for ALR's is set forth in section S4.3(i) of Standard No. 209. Since Standard No. 209 became effective in 1968, the agency has determined whether ALR's comply with this requirement by examining the performance of the retractor itself without any assistance from external mechanisms. As explained in the final rule, the same procedure (examining the performance of the retractor itself without any assistance from external mechanisms) will be used to measure compliance with the minimum webbing travel requirements in Standard No. 208.

In your letter, you requested that we issue an interpretation that any ALR that complies with Standard No. 209 can rely on the use of an external mechanism, such as your company's "Komfort-Lok," to comply with the minimum webbing travel requirements of Standard No. 208 for ALR's on safety belts in heavy vehicles. I cannot do so, for the reasons explained above. Any ALR used on a heavy vehicle safety belt must satisfy the minimum webbing travel requirements in Standard No. 208 by the working of the retractor itself, without the use of any external mechanisms.

Sincerely,

Erika Z. Jones Chief Counsel

ref:208#209 d:ll/l/88

ID: 2866o

CERTIFIED MAIL -- RETURN RECEIPT REQUESTED

Mr. Alberto Negro Director Fiat Research & Development -- U.S.A. Branch Parklane Towers West Suite 1210 Dearborn, MI 48126

Dear Mr. Negro:

This responds both to your revised report, dated January 20, 1988, pursuant to 49 C.F.R. Part 585, on behalf of Alfa Lancia Industriale S.p.A. (Alfa Romeo), covering compliance with the automatic restraint "phase-in" requirements during the 1987 production year, and to your February 4, 1988, letter to Stephen Wood, our Assistant Chief Counsel for Rulemaking, seeking an interpretation of Standard No. 208, Occupant Crash Protection (49 CFR 571.208). Specifically, your question concerns whether Fiat may exclude automatic restraint-equipped convertibles from its determinations of annual production for the purpose of calculating the number of passenger cars that must comply with the automatic restraints requirements during the phase-in period.

Alfa Romeo, a subsidiary of Fiat, equipped some of its convertibles with automatic restraints during the 1987 model year, and Fiat counted those convertibles toward satisfying the requirement that 10 percent of 1987 production year cars be equipped with automatic restraints. You stated in your February 4 letter that you need clarification of whether Standard No. 208 permits you to exclude from your annual production calculations those convertibles that were equipped with automatic restraints and that were counted in determining whether the requisite percentage of production complied with the automatic restraint requirements. In other words, you wish to know whether Fiat may "count" Alfa Romeo convertibles equipped with automatic seat belts for the purpose of satisfying the 10% "phase-in" requirement for production year 1987, found at S4.1.3.1.2 of Standard No. 208, while excluding those same convertibles from the annual vehicle production calculations covering the 1987 production year.

The answer to your question is that Standard No. 208 does not allow Fiat to exclude from its annual production calculations any convertibles that comply with the automatic restraint requirements set forth in S4.1.2.1 of the standard. Section S4.1.3.1.2 of Standard No. 208 specifies the amount of passenger cars that must comply with the automatic restraint requirements of S4.1.2.1 shall be not less than 10 percent of either the manufacturer's average annual production between September 1, 1983, and August 31, 1986, or the manufacturer's annual production between September 1, 1985, and August 31, 1986. Under these provisions, Fiat elected to use the average annual production from September 1, 1983, through August 31, 1986, for its 1987 production year report. The reference to production encompasses all passenger cars produced by the manufacturer during the relevant time period. Thus, absent an exception to S4.1.3.1.2, a manufacturer may not exclude any of its cars in determining either average annual production or annual production.

For the period of September 1, 1986, to August 31, 1987, section S4.1.3.1.3 of Standard No. 208 provides a single exception from the requirement to include all of a manufacturer's cars in determining annual production. Under that exception, a manufacturer has the following option in calculating annual production:

A manufacturer may exclude convertibles which do not comply with the requirements of S4.1.2.1, when it is calculating its average annual production under S4.1.3.1.2(a) or its annual production under S4.1.3.1.2(b). (Emphasis added.)

The same single exception is set forth in section S4.1.3.2.3 for the September 1, 1987, to August 31, 1988 production year, and in section S4.1.3.3.3 for the September 1, 1988, to August 31, 1989 production year. This exception expressly permits manufacturers to exclude convertibles that do not comply with S4.1.2.1 from such calculations. However, this language does not permit manufacturers to exclude convertibles that comply with S4.1.2.1 from such calculations.

An old principle of legal interpretation is expressed in the maxim "expressio unius est exclusio alterius"; literally, the expression of one thing is the exclusion of another. Applying this principle to Standard No. 208, one would conclude that since the standard was drafted to provide one means of excluding convertibles from calculations of annual production, the standard does not allow any other means of excluding convertibles from those calculations. In other words, since the standard allows you to exclude convertibles that do not comply with S4.1.2.1 when calculating annual production, the absence of a similar provision for convertibles that comply with S4.1.2.1 means that complying convertibles cannot be excluded.

This interpretation does not raise any questions about the January 20 report's exclusion of all convertibles produced between September 1, 1983, and August 31, 1986, since your letter states that none of those convertibles complied with S4.1.2.1. However, this interpretation does mean that Fiat cannot exclude the 803 Alfa Romeo convertibles it reported as complying with S4.1.2.1 when making its 1988 production year calculations, as required by S4.1.3.2, if Fiat again elects to base its calculations on the average annual production of passenger cars during the preceding three years, as permitted by S4.1.3.2.2(a). Similarly, if Fiat elects to base its calculations on the actual production between September 1, 1987, and August 31, 1988, as permitted by S4.1.3.2.2(b), Fiat cannot exclude convertibles that comply with the requirements of S4.1.2.1.

In this letter, we have assumed that the Alfa Romeo convertibles that are equipped with automatic seat belts are certified as complying with the automatic restraint provisions of S4.1.2.1 of Standard No. 208. If this is not the case, then Fiat may not "count" those vehicles as complying with the automatic restraint phase-in requirements of S4.1.3.1.2 of Standard No. 208. See attached letter dated April 18, 1988 to Mr. Robert Munson of Ford Motor Company. Please notify Mr. George L. Parker, NHTSA's Associate Administrator for Enforcement, within 10 business days of your receipt of this letter, whether the Alfa Romeo automatic seat belts are certified as complying with the automatic restraint requirements of S4.1.2.1 of Standard No. 208.

If you have any further questions or need more information on this subject, please feel free to contact Steve Kratzke of my staff at this address or by telephone at (202) 366-2992.

Sincerely,

Erika Z. Jones Chief Counsel

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