ID: nht71-4.44

DATE: 11/10/71

FROM: AUTHOR UNAVAILABLE; Lawrence R. Schneider; NHTSA

TO: Toyota Motor Company, Ltd.

TITLE: FMVSS INTERPRETATION

TEXT: As indicated to you in the November 1 meeting in Mr. Laskin's office, the seat belt retractor demonstrated by Toyota and shown on page 9 of the attachment to your letter is considered by the National Highway Traffic Safety Administration to be an automatic locking retractor. The classification of a retractor is determined by its operation, not by its design, and the Toyota retractor, however unconventional in design, operates in the manner prescribed for automatic locking retractors.

With respect to the test procedure of S5.3(a)(6), it is the intent of the test to load the seat belt assembly in a manner that represents the type of tension encountered in use. It is our opinion that the test set up shown on page 9 of the attachment to your letter is a correct application of the procedure to the Toyota retractor.

Please advise us if we can be of further assistance.

ID: nht93-7.22

DATE: October 12, 1993

FROM: Saburo Inui -- Vice President, Toyota Motor Corporate Services of North America, Inc.

TO: Robert F. Hellmuth -- Director Office of Vehicle Safety Compliance, NHTSA

TITLE: Test Procedure for FMVSS 214

ATTACHMT: Attached to letter dated 6/28/94 from John G. Womack to Saburo Inui (A42; STD 214)

TEXT: We request confirmation of our interpretation of the means to establish vehicle attitude during the testing for compliance with FMVSS 214, Side Impact Protection, as well as clarification of certain ambiguities in the test procedure.

S6.1, Test Weight, provides that "[e]ach passenger car is loaded to its unloaded vehicle weight, plus its rated cargo and luggage capacity . . . plus the weight of the necessary anthropomorphic test dummies. Any added test equipment is located away from impact areas in secure places in the vehicle."

S6.2, Vehicle test attitude, defines "fully loaded condition" as the "test vehicle loaded in accordance with S6.1."

The term, "fully loaded attitude," used in S6.2, is not defined.

Toyota assumes that the "test weight" described in S6.1 includes the weight of one front seat and one rear seat dummy, but it is not clear whether the "added test equipment" is added to the "test weight" or whether parts of the vehicle (weighing the same as the "added test equipment") are to be removed to keep the vehicle weight at the "test weight." It is also unclear whether the "as delivered" left-to-right attitude must be maintained when adding test equipment.

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We also assume that the term, "fully loaded attitude," describes the attitude of the vehicle in the "fully loaded condition" defined in S6.1 (subject to the requested clarifications). Toyota requests confirmation of that interpretation.

Since these issues can affect compliance with the Standard, we request that NHTSA amend the Test Procedure to ensure that all manufacturers and laboratories employ exactly the procedures in conducting compliance testing.

If you have any questions about this matter, please contact Mr. Soichiro "Chuck" Okudaira of my staff at (202) 775-1707 or our counsel, Donald M. Schwentker, at (703) 799-7447.

ID: aiam4451

"Dear Ms. Boniske: This responds to your letter asking for a interpretation of the requirements of Standard No. 302, Flammability of Interior Materials, as they apply to 'materials used in the manufacture of an aftermarket product which will be utilized in the occupant compartment of a vehicle.' In an October 27, 1987 telephone conversation with Ms. Hom of my staff, you mentioned in particular an item of equipment consisting of a pad for cushioning safety belts. Generally speaking, items of motor vehicle equipment are not covered by Standard No. 302. Standard No. 302 is a vehicle standard and as such applies to completed vehicles. No vehicle can be manufactured unless the materials used in it comply with the requirements of the standard. The general rule is that aftermarket products may be added to vehicles, even if the addition of those products causes the vehicle to no longer comply with the requirements of Standard No. 302, without violating the requirements of Federal law. This general rule is, however, limited by the application of the provisions of Section 108(a)(2)(A) of the National Traffic and Motor Vehicle Safety Act (copy enclosed). That section specifies: 'No manufacturer, distributor, dealer, or motor vehicle repair business shall knowingly render inoperative . . . any device or element of design installed on or in a motor vehicle or item of motor vehicle equipment in compliance with an applicable Federal motor vehicle safety standard . . .' NHTSA would consider the installation of safety belt pads that do not meet the requirements of Standard No. 302 as 'rendering inoperative' an element of design (flammability resistance) installed in accordance with an applicable Federal safety standard. Thus, a manufacturer, distributor, dealer, or motor vehicle repair business that installed a safety belt pad which did not comply with the flammability resistance requirements of Standard No. 302 would be rendering inoperative that element of design, and thereby violating section 108(a)(2)(A) of the Safety Act. We note also that, since safety belts are safety devices installed in accordance with Safety Standards No. 208, Occupant Crash Protection, and No. 209, Seat Belt Assemblies, those commercial businesses would be prohibited from installing the safety belt pad if its installation would impair the effective operation of the belts. Section 109 of the Act specifies a civil penalty of up to $1,000 for each violation of /108. The prohibitions of /108(a)(2)(A) do not apply to the vehicle owner rendering inoperative some element of design in his or her vehicle. Therefore, aftermarket safety belt pads may be sold to a vehicle owner for installation in his or her vehicle regardless of whether the pad complies with the flammability resistance requirements of Standard No. 302. There are two factors which ought to be considered by the manufacturers of safety belt pads which do not satisfy the flammability resistance requirements of Standard No. 302. First is the possibility of liability under State and common law if those pads were to catch fire in a situation where a pad complying with Standard No. 302 would not have caught fire, or if those pads burn much more rapidly than pads that comply with Standard No. 302. Second is the possibility of a finding of a safety-related defect in your products. Sections 151-154 of the Safety Act require that, when an item or motor vehicle equipment contains a safety-related defect, the manufacturer of the item must recall and repair or replace the defective equipment without charge to the purchaser. In any event, we urge you to ensure that your products would not negatively affect the safety provided by the underlying belt assembly. I hope this information is helpful. Please contact us if you have further questions. Sincerely, Erika Z. Jones Chief Counsel Enclosure";

ID: 11240-2PJA

Mr. Thomas D. Turner
Manager, Engineering Services
Blue Bird Body Company
P.O. Box 937
Fort Valley, Georgia 31030

Dear Mr. Turner:

This responds to your September 20, 1995, letter asking three questions about school bus requirements in Federal Motor Vehicle Safety Standard (FMVSS) No. 217, Bus emergency exits and window retention and release.

Your first question is whether, under NHTSA's May 9, 1995, final rule amending FMVSS No. 217, a left side exit door would have to meet the emergency exit location requirements if there were also two exit windows that by themselves satisfy the additional exit requirement of Table 1. The answer is no. Table 1 requires buses with a seating capacity of 46 or larger to have as additional emergency exits "1 left side exit door or two exit windows" (emphasis added). The word "or" indicates that either is sufficient. Therefore, if both a door and two exit windows are provided, the manufacturer could designate either as satisfying the requirements, and the other would not be required to meet the location requirement. Section S5.2.3.2(a)(2)'s location requirement is explicitly limited in scope to only "the first side emergency exit door installed pursuant to Table 1." (emphasis added). Additional exit doors beyond those required would not be considered to be installed pursuant to Table 1.

Standard No. 217 formerly contained a provision requiring that emergency exits installed in addition to what is required for school buses have to meet the requirements for emergency exits from non-school buses. This requirement was dropped from the standard on January 27, 1976 (41 FR 3871). We note, however, that in an emergency, the extra emergency exit could be the exit

of choice by some occupants. To avoid confusion, the force and motion needed to open the exit should be consistent with the other emergency exits.

Further, the voluntarily installed side exit doors would still be subject to prohibitions and requirements that apply to side exit doors generally. For example, S5.2.3.2(a)(4) prohibits installing two side exit doors "in whole or in part, within the same post and roof bow panel space." In addition, section S5.2.3.2(a)(1) requires "each" side exit door to be hinged on its forward side (not merely those doors installed pursuant to Table 1).

If windows are used to comply with the additional emergency exit requirements of Table 1, they should be located in the same place as the emergency exit door would have been, "as near as practical to the mid-point of the passenger compartment." See the attached August 4, 1995, interpretation letter that NHTSA sent to Thomas Built Buses on this subject.

Your second question concerns the language in S5.2.3.2(c) of the same final rule stating that "[s]chool buses shall not be equipped with horizontally-sliding emergency exit windows." Blue Bird sells some buses with windows that have sections that slide horizontally to provide ventilation, but also push out to create an emergency exit opening. You were concerned that the literal language of the final rule would prohibit these windows because they are emergency exit windows and they slide horizontally. Instead, your understanding is that the language "horizontally-sliding emergency exit windows" was intended to mean "windows that create the exit opening by sliding horizontally."

Your understanding is correct, because NHTSA does not prohibit horizontally-sliding windows generally. There are no safety concerns about horizontally-sliding emergency exit windows that do not apply to other windows in the school bus, unless the window is opened horizontally to its wider, emergency exit-size opening.

Your third question concerns the requirement in the May 9, 1995, final rule that "[i]n the case of windows with one release mechanism, the mechanism shall require two force applications to release the exit." This language first appeared in a November 2, 1992, final rule. NHTSA acknowledged in a June 13, 1994, interpretation letter that the language was incorrect and should have read "[i]n the case of windows with one release mechanism, the exit shall require two force applications to open." (emphasis added). The June 13 interpretation stated NHTSA's intention not to enforce the rule so long as the exit requires two force applications to open, and to issue a correction notice in the future. The language was unfortunately repeated in the May 9, 1995, final rule, but the June 13 interpretation still reflects the agency's position.

I hope this information is helpful. If you have any further questions, feel free to contact Paul Atelsek of my staff at 202-366-5260.

Sincerely,

Samuel J. Dubbin Chief Counsel ref:217 d:3/20/96

ID: nht94-3.77

TYPE: INTERPRETATION-NHTSA

DATE: July 20, 1994

FROM: John Womack -- Acting Chief Counsel, NHTSA

TO: Scott R. Dennison -- Consultant, Excalibur Automobile Corporation

TITLE: None

ATTACHMT: Attached to letter dated 5/31/94 from Scott R. Dennison to Administrator

TEXT: We have received your letter of May 31, 1994, petitioning for a temporary exemption from paragraph S4.1.4 of Standard No. 208 on behalf of Excalibur Automobile Corporation (the Federal Express Airbill indicates that it was mailed July 9, 1994).

The petition does not, as required by 49 CFR @ 555.5(b)(7), set forth the reasons why an exemption would be in the public interest and consistent with the objectives of traffic safety.

You make the statement that "the door hinge system incorporated in the Excalibur Cobra has been tested to exceed the FMVSS by over four times the required strength." Please provide a copy of the test report that demonstrates this performance. Under @ 55 5.6(d)(1)(iv), a petitioner is required to provide "the results of any tests conducted on the vehicle demonstrating that its overall level of safety exceeds that which is achieved by conformity to the standards."

The second page of the petition references a "Plymouth Sunbird" vehicle for model year 1994. We assume you mean Pontiac, as we are unaware of any Plymouth with this model name.

The timing of your letter raises the inference that Excalibur may presently be manufacturing convertibles equipped with manual Type 2 seat belt assemblies. Please inform us as to the number of Cobras that the company may have produced on or after Septemb er 1, 1989, that were equipped with driver and passenger manual Type 2 seat belt assemblies.

Finally, it has been customary for petitions to be signed by an officer of the manufacturer. We have accepted petitions signed by foreign manufacturers but submitted by a person resident in the United States, on the manufacturer's behalf. Your use of E xcalibur's letterhead leads to an assumption that you have the authority to make the representations of the

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petition, but your title of "Consultant" does not identify you as a corporate officer. We would appreciate an explanation of your relationship to Excalibur, or, alternatively, the signature of a corporate officer on the petition.

We shall hold the petition in abeyance until we have heard further from you.

ID: 6406

Mr. Scott R. Dennison
Consultant
Excalibur Automobile Corporation
1735 S. 106th Street
Milwaukee, WI 53214

Dear Mr. Dennison:

We have received your letter of May 31, 1994, petitioning for a temporary exemption from paragraph S4.1.4 of Standard No. 208 on behalf of Excalibur Automobile Corporation (the Federal Express Airbill indicates that it was mailed July 9, 1994).

The petition does not, as required by 49 CFR '555.5(b)(7), set forth the reasons why an exemption would be in the public interest and consistent with the objectives of traffic safety.

You make the statement that "the door hinge system incorporated in the Excalibur Cobra has been tested to exceed the FMVSS by over four times the required strength." Please provide a copy of the test report that demonstrates this performance. Under '555.6(d)(1)(iv), a petitioner is required to provide "the results of any tests conducted on the vehicle demonstrating that its overall level of safety exceeds that which is achieved by conformity to the standards."

The second page of the petition references a "Plymouth Sunbird" vehicle for model year 1994. We assume you mean Pontiac, as we are unaware of any Plymouth with this model name.

The timing of your letter raises the inference that Excalibur may presently be manufacturing convertibles equipped with manual Type 2 seat belt assemblies. Please inform us as to the number of Cobras that the company may have produced on or after September 1, 1989, that were equipped with driver and passenger manual Type 2 seat belt assemblies.

Finally, it has been customary for petitions to be signed by an officer of the manufacturer. We have accepted petitions signed by foreign manufacturers but submitted by a person resident in the United States, on the manufacturer's behalf. Your use of Excalibur's letterhead leads to an assumption that you have the authority to make the representations of the

petition, but your title of "Consultant" does not identify you as a corporate officer. We would appreciate an explanation of your relationship to Excalibur, or, alternatively, the signature of a corporate officer on the petition.

We shall hold the petition in abeyance until we have heard further from you.

Sincerely,

John Womack Acting Chief Counsel ref:555 d:7/20/94

ID: nht68-3.27

DATE: 04/24/68

FROM: AUTHOR UNAVAILABLE; R. M. O'Mahoney; NHTSA

TO: Fiat Motor Company, Inc.

TITLE: FMVSS INTERPRETATION

TEXT: This is in reference to your letter of March 21, 1968, concerning Federal Motor Vehicle Safety Standard No. 202.

The standard does not preclude the use of a head restraint which, when not in use, can be fully retracted into the seat back.

MOTOR COMPANY, INC.

March 21, 1968

March 21, 1968

Robert O'Mahoney Federal Highway Administration

With reference to Federal Safety standard 202 issued on Federal Register Vol.33 of February 14, 1968, we would appreciate your confirming to us whether a head restraint which, when not in use, can be fully retracted into the seat back is acceptable.

Would you please clarify this to us.

Thanking you for your cooperation in this matter, we remain,

G. Gabrielli Technical Manager

ID: nht74-3.35

DATE: 05/03/74

FROM: AUTHOR UNAVAILABLE; Lawrence R. Schneider; NHTSA

TO: Hawk Motor Homes, Inc.

TITLE: FMVSS INTERPRETATION

TEXT: This is in reply to your letter of March 27, 1974, enclosing a sample certification label and requesting that we approve as an alternate location the inside wall left of the driver's seat beneath the driver's side window, to the left of the dash.

The labels you supply state in day, month, and year the dates of complete and incomplete vehicle manufacture, and the date by which applicable standards are determined. The Certification regulations (49 CFR Parts 567, 568) call for these dates to be stated only by month and year. While we prefer that the regulation be followed specifically, and thus that month and year only be specified, we will accept the format you have submitted which includes the day. The other information on the labels conforms to the Certification requirement.

With respect to your request for an alternate location, we approve the alternate location you request.

SINCERELY,

Hawk Motor Homes, Inc.

March 27, 1974

U.S. Department of Transportation National Highway Traffic Safety Admin.

Attention: Frank Berndt

Re: N40-30 (JB)

CIR-954

In accordance with our telephone conversation on March 25th, we are enclosing herewith two sample labels for approval. Would you kindly affix your approval to one of the labels and return to us in the self-addressed stamped envelope also enclosed herewith.

It is our intention to have these labels attached to the wall immediately left of the driver's seat and directly underneath the window to the rear of the dash board. Kindly indicate whether or not this location is acceptable. Also note the diagram enclosed.

Very truly yours,

by Fred H. Hogan -- President

ID: nht92-5.26

DATE: July 8, 1992

FROM: Andrew H. Card, Jr. -- NHTSA Secretary of Transportation

TO: Matthew G. Martinez -- U.S. House of Representatives

TITLE: None

ATTACHMT: Attached to letter dated 6/11/92 from Matthew G. Martinez to Andrew Card (OCC 7386)

TEXT:

Thank you for your letter regarding Philatron International.

The National Highway Traffic Safety Administration (NHTSA) closely examined Philatron's request and determined that the requested relief cannot be provided. The reasons underlying this conclusion are fully explained in a May 26, 1992, letter from NHTSA Chief Counsel Paul Jackson Rice to Anthony D. Padgett, counsel for Philatron.

In his letter, the Chief Counsel explained that Philatron, as a manufacturer of motor vehicle equipment, is not eligible to be considered for an exemption from compliance with the motor vehicle safety standards under the National Traffic and Motor Vehicle Safety Act. The Chief Counsel also concluded that a proceeding resulting from Philatron's rulemaking petition must include a full notice and comment procedure. A copy of the letter is enclosed.

Let me assure you that the Department of Transportation supports and implements President Bush's deregulatory policies and initiatives. However, the President has emphasized that deregulation should not compromise safety. With respect to the issue at hand, interested parties have raised serious questions as to whether the oil resistance requirement of the standard should be eliminated and, if so, whether other requirements should be substituted. It is this concern for safety that compels NHTSA not to eliminate summarily the regulatory requirement in question.

Attachment

Letter dated 5/26/92 from Paul Jackson Rice to Anthony D. Padgett, Esq., Thelen, Marrin, Johnson & Bridges, regarding Philatron. Text of letter follows.

Dear Mr. Padgett:

General Curry has asked me to respond to your letter of April 24, 1992, in which you requested the National Highway Traffic Safety Administration ("NHTSA") to grant an "immediate temporary exemption" from the oil resistance requirements of section S7.3.4 of Federal Motor Vehicle Safety Standard ("FMVSS") No. 106 to Philatron International, Inc. The purpose of such an exemption would be to permit Philatron to manufacture and sell its coiled brake hose products, which do not comply with S7.3.4, during the pendency of the rulemaking proceeding that NHTSA has commenced in response to Philatron's petition for rulemaking to amend that provision.

Section 123 of the National Traffic and Motor Vehicle Safety Act ("Act"), 15 U.S.C. S 1410, provides NHTSA with the authority to grant exemptions from safety standards under limited circumstances. However, we have concluded that Philatron would not be eligible to receive an exemption under that section. First, section 123 only authorizes exemptions to manufacturers of "motor vehicles," not to manufacturers of motor vehicle equipment such as Philatron. You have suggested that "it would strain logical reasoning" to allow exemptions to be granted to manufacturers of complete vehicles but not to manufacturers of individual components. However, this is a distinction that Congress may make and has made. As you are aware, section 157 of the Act, 15 U.S.C. S 1417, authorizes NHTSA to grant to all manufacturers, including manufacturers of equipment items, an exemption from the notification and remedy requirements of sections 151-154 of the Act if the agency determines that a noncompliance or defect is inconsequential as it relates to motor vehicle safety. Congress did not provide similar authority in section 123 regarding exemptions from section 108 of the Act, which precludes the manufacture and sale of motor vehicle equipment that does not comply with applicable safety standards.

Second, even if NHTSA could exempt equipment items under section 123, the number of hose assemblies manufactured by Philatron would disqualify it due to the numerical restrictions established by section 123(d). Moreover, although you have not indicated which specific subsection of section 123 you believe would be applicable to Philatron, it is questionable whether the company could satisfy any of the substantive bases for an exemption under that section.

I should also point out that, pursuant to section 123(a), NHTSA must provide notice and an opportunity for public comment before it may grant an exemption. Since Philatron's sole reason for requesting an exemption is to enable it to continue to manufacture and sell its products during the pendency of the ongoing rulemaking proceeding, commencing a separate notice and comment proceeding to consider whether to grant a temporary exemption would not provide any real benefit to the company.

It is also clear that, notwithstanding your reference to cases involving other agencies, NHTSA does not have authority to grant exemptions except as provided under section 123. In the early years of the Safety Act, the agency claimed that it had inherent authority to grant to a single manufacturer (Checker Motors Corporation) an extension of the effective date for complying with a standard. On review, the courts held that such an extension was equivalent to an exemption from a safety standard and that NHTSA did not have authority to grant any exemptions except as provided under section 123.

As the District Court stated in Nader v. Volpe, 320 F. Supp. 266, 269 (D.D.C. 1970):

The Court notes that when the Act was originally adopted, Section 1410 did not exist. At first, the Department of Transportation did not feel that it had the statutory authority to grant single manufacturer extensions, but due to the hardship felt by some small manufacturers of specialty cars, the Congress enacted Section 1410. This section, however, is specifically limited to manufacturers who annually produce five hundred cars or less.

Thus, when there was an awareness on the part of Congress that special provisions should be made for single manufacturers, such provisions were restricted. Congress did not provide extensions for single car manufacturers across the board. In fact, from the action it did take, it is logical to presume that it never intended to have a single manufacturer extension for producers who exceeded the five hundred vehicle limit, and the Court so holds.

Although Congress subsequently amended section 123 to broaden the circumstances under which exemptions could be granted, the foregoing legal principle was affirmed by the D.C. Circuit. Nader v. Volpe, 475 F.2d 916, 918 (D.C. Cir. 1973):

And we think it clear, both under the version of Section 1410 initially before us and under Section 1410 as amended by Public Law No. 91-548, that the Secretary's sole authority to exempt a manufacturer from a safety standard, even if that exemption takes the form of a postponement of the effective date of the safety standard for a single manufacturer, derives from Section 1410. THERE IS NO IMPLIED AUTHORITY TO GRANT EXEMPTIONS OR POSTPONEMENTS IN SITUATIONS NOT ENCOMPASSED BY THAT SECTION (emphasis supplied).

Although your April 24 letter focussed on Philatron's request for a temporary exemption, you have also suggested that the agency could amend FMVSS No. 106 "without resort to the full (notice and comment) rulemaking procedure," citing 49 CFR S 553.13. Contrary to the implication of your letter, the fact that NHTSA has granted Philatron's petition for a determination of inconsequentiality with respect to the hose assemblies that were manufactured and sold before the company's determination of noncompliance does not automatically mean that it is appropriate to amend the standard prospectively without prior notice and comment. Moreover, even if the agency had decided that an amendment was appropriate, it would still need to determine the precise form and content of the amendment. For example, we must ensure that the amendment goes no further than is consistent with safety. Identifying where and how to achieve that balancing is precisely the sort of decision that notice and comment was intended to help agencies analyze and resolve.

Under section 553.13 and section 553(b)(B) of the Administrative Procedure Act, 5 U.S.C. S 551(b)(B), NHTSA must provide notice of and an opportunity to comment on proposed rules unless the Administrator, "for good cause, finds that notice is impracticable, unnecessary, or contrary to the public interest ...." We are unable to make such a finding in this rulemaking proceeding. Courts have upheld agency actions bypassing the notice-and-comment requirement only under circumstances that are far more compelling than those which confront NHTSA and Philatron in this rulemaking.

The term "impracticable" is narrowly construed by the courts. The legislative history of the APA emphasizes that narrowness: "'Impracticable' means a situation in which the due and required execution of the agency functions would be unavoidably prevented by its undertaking public rulemaking procedures." S. Rep. No. 752, 79th Cong., 1st Sess. 16 (1945). The difficulty of showing impracticability is demonstrated by the fact that the existence of a near- term statutory or judicial deadline is not, by itself, sufficient to establish impracticability. U. S. Steel Corp. v. Environmental Protection Agency, 595

F.2d 207, 213 (5th Cir. 1979). An agency faced with such a deadline must go further and show that even had it acted diligently, there was insufficient time available to obtain public comment. The extent of the necessary showing is suggested in a case involving a different type of deadline. In that case, an agency was upheld after it adopted a last-minute temporary delay in the implementation of a new requirement without providing notice and comment. The agency was able to demonstrate that, despite its diligence in attempting to implement the requirement, it was forced to conclude shortly before the requirement's effective date that compliance by industry in general with the requirement was not yet feasible. Council of the Southern Mountains, Inc., v. Donovan, 653 F.2d 573 (D.C. Cir. 1981).

In the present situation, there is no showing that notice and comment would be impracticable. The oil resistance requirement has been a part of FMVSS No. 106 for many years. Pre-production testing by Philatron of its hose to determine whether there was sufficient basis to certify compliance with all applicable requirements should have revealed that there would be a compliance problem, and should have led Philatron to seek an amendment to the standard at that time.

"Unnecessary," as used in section 553, is confined to those situations in which the administrative rule is "a routine determination, "insignificant in nature and impact," and inconsequential "to the industry and to the public." Texaco, Inc. v. Federal Power Commission, 412 F.2d 740 (3rd Cir. 1969). It is clear that Philatron's requested amendment to FMVSS No. 106 is a significant matter that is important to the brake hose and motor vehicle industry. As you are aware, Philatron's petition for an inconsequentiality determination elicited a large and contentious response. Further, the issues in a rulemaking to amend the oil resistance requirement would not be limited, as they were in the inconsequentiality proceeding, to the safety significance of the failure of the hoses previously manufactured by Philatron to comply with that requirement. The agency would also have to address such issues as which applications of brake hose should be excluded from the oil resistance requirement, whether hoses so excluded should be subjected to a labelling requirement, and whether other requirements should be adopted in lieu of the oil resistance test. Therefore, we cannot conclude that notice and comment is "unnecessary."

Further, we cannot conclude that notice and comment would be "contrary to the public interest." According to the legislative history of the APA, "'Public interest' supplements the terms 'impracticable' or 'unnecessary;' it requires that public ride-making procedures shall not prevent an agency from operating, and that, on the other hand, lack of public interest in rule-making warrants an agency to dispense with public procedure." S. Rep. No. 752 at 16. The public interest exception only applies when the delay caused by notice and comment would cause real harm to the public, not mere inconvenience to the agency or members of the public.

NHTSA is aware of Philatron's assertion that if the standard is not amended promptly, the company will have to lay off workers. It is also aware of Philatron's claim about the performance of its hoses relative to the hoses of its competitors. However, the benefits and safety consequences of Philatron's hoses are not universally accepted. Based on the public response to the petition for an inconsequentiality determination, it is highly likely that there would be a similar outpouring of comments in response to a proposal to amend the oil resistance requirements as Philatron has suggested. Accordingly,

the agency is unable to conclude on the basis of the present record that the public interest warrants an immediate amendment of the standard.

In view of the foregoing, NHTSA will seek public comment on its impending proposal to amend FMVSS No. 106. Please be assured that the agency will take appropriate steps to complete this proceeding as quickly as possible.

Sincerely,

Paul Jackson Rice Chief Counsel, NHTSA

ID: aiam3979

Dear Ms. Samuelson: Thank you for your letter of June 4, 1985, to Mr. Gary Butler of ou Region V office, which was forwarded to my office for reply. You asked whether Federal law requires safety belts to be installed and used in several types of vehicles. I understand from conversations between my staff and Mr. Butler that your question is related to the provision of Illinois' belt use law which exempts a person operating 'a motor vehicle which is not required to be equipped with seat safety belts under federal law' from the safety belt use requirement. I hope the following discussion is of assistance to you in your effort to ensure that the City of Champaign is in compliance with Illinois' safety belt use requirement. I believe that Illinois' law and your efforts can have an immediate and beneficial safety impact on the citizens of Champaign. I would encourage you to have all occupants of municipal vehicles wear their safety belts regardless of whether they are covered by your State's belt use requirement.; The agency has issued, under the authority of the National Traffic an Motor Vehicle Safety Act (15 U.S.C. 1381 *et seq*.), Federal Motor Vehicle Safety Standard No. 208, *Occupant Crash Protection*, which requires the installation of occupant restraints, such as safety belts, in vehicles. Standard No. 208 requires only the installation of the restraints, it does not require their use. A copy of the standard is enclosed for your reference. I hope the following discussion explains how Standard No. 208 applies to each of the vehicles you mentioned.; You asked about fire trucks and public work trucks. Those vehicle would be governed by S4.2 or 4.3 of the standard, depending upon the gross vehicle weight rating of the truck. Police cars would be classified as passenger cars under our standard and currently would have to comply with the requirement of S4.1.2 of our standard.; The application of the standard to the remaining category of vehicle you asked about would depend upon their construction and use. All of our standards apply only to motor vehicles. The Vehicle Safety Act defines a motor vehicle as 'any vehicle driven or drawn by mechanical power manufactured primarily for use on the public streets, roads and highways, except any vehicle operated exclusively on a rail or rails.' (15 U.S.C. 1391(3)); In interpreting this definition, the agency has said that a vehicl which cannot exceed 20 mph and has an unusual configuration which sets it apart from the rest of the traffic is not a motor vehicle and thus does not have to comply with our standards, even if it uses the public roads. These vehicles, typically, are highway maintenance and construction equipment, lane stripers and other similar vehicles. Thus, if the snow plows, road graders and other specialized types of public work vehicles you asked about have a top speed that does not exceed 20 mph and have an unusual configuration, they would not be covered by Standard No. 208. However, if these vehicles are conventional trucks that use the public roads and have specialized work equipment mounted on them, then they would have to meet the occupant crash protection requirements set in Standard No. 208 for trucks.; If you have any further questions, please let me know. Sincerely, Jeffrey R. Miller, Chief Counsel