ID: aiam1735

Dear Mr. Danis: This is in response to your letter of October 23, 1974, requesting ou comments on your West Coast type mirror (which includes a ground-in convex spot mirror) and information on Federal regulations for spot mirrors in general.; Standard No. 111, *Rearview Mirrors*, provides minimum performanc requirements for rearview mirrors on passenger cars and multipurpose passenger vehicles. According to the standard, the outside rearview mirror required to be placed on the driver's side of the vehicle must be furnish the driver with a specified field of view to the rear of substantially unit magnification. As long as the mirror is capable of satisfying these field view requirements, the inclusion of a convex spot mirror no the plane mirror (as with the West Coast mirror) is not prohibited by the standard. If your West Coast type mirror is capable of providing the required view of substantially unit magnification independent of its convex spot mirror, it will comply with the standard.; The recent notice proposing to amend the rearview mirror standard (Ma 1, 1974, 39 FR 15143), does not alter the above described permissible use of West Coast type mirrors. No requirements for spot mirrors are contained in the Federal motor vehicle safety standards.; We appreciate your interest. Yours truly, Richard B. Dyson, Acting Chief Counsel

ID: aiam0318

Dear Mr. Schwentker: This is in response to your letter of April 20, 1971, in which yo enclosed a request for clarification, on behalf of Rolls-Royce, Ltd., of the requirements of Standard No. 208, Occupant Crash Protection. Essentially, the question was whether a 'European type combined lap and diagonal strap seat belt assembly with retractor' could be furnished instead of the 'Type 1 seatbelt assembly' specified in the second protection option on passenger cars manufactured from August 15, 1973, to August 14, 1975.; Standard No. 208 does not permit this substitution. The key feature o the second option in the August 1973-August 1975 period is that the manufacturer must design his vehicles so that the front seat occupants are protected from injury when restrained with lap belts only, and provide lap belts for all occupants that may, at least, be separately usable as such. A detachable upper torso belt may be provided at the manufacturer's option. The basis for this requirement is the well-documented finding that a much larger percentage of the American public will fasten lap belts than will use upper torso belts, whether the latter are of the detachable or the combination type.; We are pleased to be of assistance. Sincerely, Lawrence R. Schneider, Acting Chief Counsel

ID: nht87-1.85

TYPE: INTERPRETATION-NHTSA

DATE: 06/03/87

FROM: AUTHOR UNAVAILABLE; Erika Z. Jones; NHTSA

TO: Gabriel J. Ferber -- Nesper, McElvein, Ferber and Digiacomo

TITLE: FMVSS INTERPRETATION

TEXT:

This responds to your letter to Mr. George Shifflett of our Office of Vehicle Safety Compliance, in which you sought an interpretation of 49 CFT Part 541, Federal Motor Vehicle Theft Prevention Standard. You asked whether Part 541 markings must be inscri bed on certain Canadian vehicles not originally manufactured for sale in this country. More specifically, you referred to @541.5(a), which provides, "In the case of passenger cars not originally manufactured to comply with U.S. vehicle safety and number standards, each such car subject to this standard must have an identifying number inscribed in a manner which ..." (Emphases added). You stated that your client is a direct importer of Canadian vehicles subject to the theft prevention standard. You state d that these vehicles have identification numbers affixed to the required major parts by their original manufacturer. While these Canadian vehicles are not certified as complying with the U.S. vehicle and bumper standards, you asserted that they are orig inally manufactured to comply with U.S. vehicle safety and bumper standards. Accordingly, you believe that Part 544 does not require these vehicles to have the identification number inscribed on the parts, but instead requires the identification number t o be inscribed or affixed. Since the original manufacturer has already affixed identification numbers on these vehicles, you believe your client is not required to add any identification number markings to these vehicles before certifying that they compl y with Part 541.

The crux of your argument is that those vehicles can be shown to be originally manufactured to comply with U.S. vehicle safety and bumper standards, even though they are not certified as being so. We agree that this is possible, but it would take some ve ry convincing proof to establish this point. The Canadian safety standards are very similar to, but not identical with, the U.S. safety standards. Hence, the fact that a vehicle is certified as complying with Canadian safety standards does not establish that the vehicle was originally manufactured to comply with U.S. vehicle safety standards.

Your letter stated that "compliance with U.S. safety and bumper standards is shown by reliance on the 'V73' designation or some other method." The V73 designation to which you refer is an internal billing code used by General Motors on the sales receipts for some vehicles. While you assert that this billing code designation means that the vehicle complies with U.S. vehicle standards, we have no confirmation from General Motors of this point. Further, vehicle manufacturers assign whatever meanings they c hoose to their billing code designations, and are free to change the assigned meanings whenever they wish. Because of this, we conclude that you have not established that these vehicles were originally manufactured to comply with U.S. vehicle safety and bumper standards simply because they show a V73 designation in their billing code. Absent a more convincing showing that these vehicles were originally manufactured to comply with U.S. vehicle safety and bumper standards, S541.5(a) requires your client t o inscribe the identifying number on the various covered major parts.

I would also like to point out that your client could not certify compliance with the theft prevention standard by relying on the presence of the GM labels, even if your client were allowed to affix identifying markings. Please note that @541.5(d)(l)(vii i) requires, "The logo or some other unique identifier of the vehicle manufacturer must be placed in the material of the label in a manner such that alteration or removal of the logo visibly alters the appearance of the label." In this case, your client is considered the manufacturer, since it seeks to directly import these Canadian vehicles. The affixed GM labels presumably do not show the logo or some other unique identifier of your client, the direct importer. Accordingly, the GM labels would not sat isfy the requirements of @541.5(d)(1) for those vehicles for which your client is a direct importer.

NHTSA explained at length in the final rule establishing the theft prevention standard why it was necessary to have all required markings inscribed on directly imported vehicles subject to the theft prevention standard. See 50 FR 43166, at 43184-85: Octo ber 24, 1985. The agency also explained why it was necessary that affixed labels have the logo or some other unique identifier of the manufacturer in the labels. Ibid., at 43174-75. I have enclosed a copy of this rule for your information.

Sincerely,

Erika Z. Jones Chief Counsel

Enclosure

Mr. George Shifflett Department of Transportation NHTSA Director, Office of Vehicle Safety Compliance NEF 32 400 - 7th Street, S.W. Washington, D.C. 20590

Dear Mr. Shifflett:

I would like to offer the following for your consideration in determining whether the VID numbers must be inscribed on GM vehicles which already bear labels with such numbers affixed by the manufacturer.

Section 541.5 requires inscription in the case of passenger cars not originally manufactured to comply with U. S. vehicle safety and bumper standards. Our client only brings in vehicles which do comply with such standards. This is true notwithstanding th e fact that the manufacturers certifying label may have been modified to state that the vehicle complies with Canadian safety, bumper and anti-theft standards. In such case, compliance with U. S. safety and bumper standards is shown by reliance on the 'V 73' designation or some other method. In such case, we then comply with the certification requirements under Section 567.4.

The certification requirement under Section 567.4 is, of course, separate from the inscription requirement under Section 541.5. The inscription requirement is not triggered by a manufacturer's failure to certify compliance, it is triggered by the failure of the vehicle to be manufacturered to comply with U. S. vehicle safety and bumper standards. Since the vehicles in question are, in fact, manufactured to comply with U. S. vehicle safety and bumper standards, albeit not certified as such, it is submitt ed that there is no requirement that such vehicles be inscribed and the manufacturer's label should suffice.

Thank you for your consideration of this submission. Please let me know whether you agree.

Yours truly,

NESPER, McELVEIN, FERBER & DiGIACOMO

By Gabriel J. Ferber

GJF/gw

cc: Steven Kratzke, Esq. Superior Auto Sales, Inc.

ID: nht76-2.14

DATE: 02/13/76

FROM: AUTHOR UNAVAILABLE; James B. Gregory; NHTSA

TO: Hon. J. E. Moss - H.O.R.

TITLE: FMVSS INTERPRETATION

TEXT: Thank you for your January 19, 1976, letter asking for further explanation of the National Highway Traffic Safety Administration's (NHTSA) position on a school bus seating standard that specifies both passive compartmentalization and the installation of seat belt anchorages.

The NHTSA has issued its school bus seating standard (Standard No. 222, School Bus Seating and Crash Protection) in a form that requires compartmentalization of vehicle occupants but does not require installation of seat belt anchorages. There is not sufficient information in the record on which to determine what percentage of school districts would utilize seat belts. The limited evidence available to the NHTSA indicates that only a small fraction of school buses would have belts installed and properly used, and that the decision to mandate seat belt anchorage installation should await further information as to the extent to which belts would be installed and properly used.

The issue of whether the NHTSA is on "safe legal ground in mandating a requirement that in itself does not contribute to motor vehicle safety but requires further action on the part of local officials" has become less urgent in view of the standard's promulgation without anchorage requirements. I would like to respond generally that the NHTSA has always held the opinion in construing the National Traffic and Motor Vehicle Safety Act (the Act) that safety performance requirements that require further action by vehicle users are entirely appropriate. While some safety devices (such as bumpers) are in place and operate passively, most devices, (such as lights and seat belts) require occupant action to gain protection. Seat belt anchorages require more action than simple use to gain their benefits, but this does not appear to be a logally significant distinction. In this case, I decided that substantial controversy over the appropriateness and legality of this protection should not continue to create uncertainty over the ultimate form of the standard, endangering the ability of manufacturers to comply with Congress' maximum 9-month leadtime for upgrading school bus seating systems. We have, of course, left the issue of restraints in school buses.

While the decision on passive restraints could negate the value of seat belt training during the adult years, it should be noted the NHTSA is not proposing passive protection for the rear seats of passenger cars where children are encouraged to ride. They would need to use the seat belts provided to increase their protection in a crash.

SINCERELY,

CONGRESS OF THE UNITED STATES

HOUSE OF REPRESENTATIVES January 19, 1976

Dr. James B. Gregory Administrator National Highway Traffic Safety Administration

Thank you for your letter of January 13, 1976, explaining your position on mandatory seat belt anchorages for school bus seats.

Protecting children who ride school buses from the risk of injury is a critical need, well established by the passage of the Motor Vehicle and Schoolbus Safety Amendments of 1974. I would agree that a zero fatalities/zero injuries record is a reasonable goal for school bus safety. Moreover, a properly conceived seat belt system for school bus seats could potentially offer a high level of protection to the young occupants using them. At the same time, I am compelled to address further questions to you regarding the proposal to require seat belt anchorages alone.

I understand clearly that the idea of requiring seat belt anchorages is to facilitate efforts on the part of local school districts deciding to install belt restraints in new school buses they buy. Moreover, it is clear that if a seat belt system ever becomes mandatory in new buses, the existence of anchorages in older buses will aid school districts deciding to bring buses they already own up to the standard by retrofitting belts into their existing fleet. Finally, I can see the wisdom of seat belts in school buses for training purposes, if we continue to mandate active restraint systems in passenger vehicles generally. Nonetheless, several questions concern me.

(1) Do you believe NHTSA to be on safe legal ground in mandating a requirement that in itself does not contribute to motor vehicle safety but requires further action on the part of local officials -- namely, having belts installed before the added safety feature becomes available for children to use?

(2) Is there evidence in the record of the rulemaking that school districts intend to exercise their option to have belt systems installed once the anchorages become available? If not, how is it possible to justify even the minor cost of this requirement given the absence of any projected benefits?

(3) Regarding the educational value of belt use in school buses, won't the need for this training decline over the next few years if passive restraints are mandatory for new passenger vehicles and gradually introduced into the vehicle population as new cars replace old ones?

I support entirely the "passive protection" approach reflected in the balance of the proposed standard as far as it goes and believe it will offer substantial additional protection to children riding buses. This approach makes particular sense if NHTSA decides to mandate passive restraints in all new passenger vehicles.

On the other hand, if active restraints -- in particular seat belt systems -- continue to be required for the general vehicle population, then it makes sense in school buses to mandate not just anchorages but appropriate and usable belt systems. An appropriate system is one that uses retractors so that belts are self-adjusting in use and stay clean when not in use; that has buckles located in or near the seat fold so that the heavy part of the buckle cannot be wielded in horseplay; and one that will target the child's head against a safe surface if the bus abruptly comes to a halt or crashes.

In short, if we are to protect the integrity of the NHTSA regulatory program, then we should be hesitant to introduce requirements such as this, which offer extremely marginal benefits at best, even by the most favorable analysis.

I have further questions relating to this rulemaking -- particularly whether it adequately meets the mandate established by the Congress in the 1974 Amendments. These questions are perhaps more substantial than the anchorage issue; however, the sufficiency of the balance of the standard is a question I will reserve for the Subcommittee's oversight hearing on NHTSA tentatively scheduled for February 6, 1976.

Thank you for your attention to the questions this letter raises.

JOHN E. MOSS Chairman Oversight and Investigations Subcommittee

ID: nht90-4.49

TYPE: Interpretation-NHTSA

DATE: October 22, 1990

FROM: Paul Jackson Rice -- Chief Counsel, NHTSA

TO: William F. Canever -- Staff Attorney, Office of General Counsel, Ford Motor Company

TITLE: None

ATTACHMT: Attached to letter dated 6-1-90 from W.F. Canever to S.P. Wood; Also attached to letter dated 8-1-90 from K. DeMeter to W.F. Canever

TEXT:

This responds to your letter concerning the implications under the Corporate Average Fuel Economy ("CAFE") program of the acquisition by Ford Motor Company ("Ford") of Jaguar plc ("Jaguar"). You stated that you believe all Ford and Jaguar vehicles produ ced and imported for model year ("MY") 1989 should be placed in Ford's fleet.

As discussed below, we have concluded that Ford's acquisition of Jaguar did not take place until MY 1990. Thus, Ford and Jaguar vehicles constituted separate fleets for MY 1989. As a consequence, while the fuel economy credits earned by the combined Fo rd/Jaguar fleet in MY 1990 may be applied to reduce (or eliminate) Jaguar's CAFE shortfall in MY 1987 and later years, the credits earned by Ford in MY 1989 may not be applied to offset any Jaguar shortfall.

According to your letter, Ford publicly announced its tender offer for Jaguar shares on November 2, 1989. This occurred after Ford had obtained the agreement of the Board of Directors of Jaguar to recommend the offer. The offer document, which constitu ted the formal legal offer, was mailed on November 8. After over 50 percent of Jaguar stock had been tendered, Ford declared the tender offer "unconditional" on December 10, 1989.

You stated that during the period of negotiation, tender offer, and acceptance, and continuing through the end of calender year 1989, Ford was "manufacturing" MY 1989 vehicles. Apparently, that statement is based on your statement that a small number of MY 1989 Jaguar and Aston Martin vehicles were imported into United States "through calendar year end 1989." You argued that because Ford controlled Jaguar and the importer of Jaguar vehicles prior to the time that the last of these MY 1989 vehicles wer e imported, and because fuel economy standards apply to particular model years as a whole and not to separate parts of a model year, all Ford and Jaguar vehicles produced and imported for MY 1989 should be placed in Ford's fleet. You contended that this treatment would be consistent with that accorded Chrysler Corporation ("Chrysler") and American Motors Corporation ("AMC") for model year 1987.

We disagree with your analysis comparing your situation to that of Chrysler/AMC, given significant differences in the timing of the respective acquisitions. In a letter to Chrysler dated April 4, 1990, NHTSA stated the following:

Another issue raised by Chrysler's memorandum is whether Chrysler and AMC became the same manufacturer for fuel economy purposes for model year

1987. According to the memorandum, Chrysler agreed to acquire AMC in the spring of 1987, and the transaction closed on August 6, 1987. . . . Since Chrysler controlled AMC prior to the end of the 1987 model year, and since fuel economy standards apply t o particular model years as a whole and not to separate parts of a model year, it is our opinion that all of the vehicles produced by both Chrysler and AMC for model year 1987 shall be treated as if manufactured by the same manufacturer, i.e., placed int o one fleet. Otherwise, one or both of the manufacturers would have two separate CAFE values, pre-acquisition (or pre-control) and post-acquisition (or post-control), for the same model year.

We continue to adhere to our view that where one manufacturer acquires another during a model year, they should be deemed as the same manufacturer, with a single CAFE value, for that model year. However, in the Chrysler/AMC acquisition, all relevant asp ects of the transaction took place during the 1987 model year.

As you know, the Motor Vehicle Information and Cost Savings Act ("Act") establishes time limits within which NHTSA must establish and/or amend fuel economy standards for a given model year that are based upon the beginning of the model year. See section s 502(b) and 502(f)(2) of the Act. In interpreting those provisions, both NHTSA and the courts have concluded that the model year is traditionally thought to start approximately October 1. See In re Center for Auto Safety, 793 F.2d 1346, 1349 (D.C. Cir . 1986); 49 Fed. Reg. 22516 (May 30, 1984); 49 Fed. Reg. 41250 (October 22, 1984). See also General Motors Corporation v. NHTSA, 898 F.2d 165, 176 (D.C. Cir. 1990); Center for Auto Safety v. NHTSA, 710 F.2d 842, 847 (D.C. Cir. 1983).

In the Chrysler/AMC case, all relevant aspects of the transaction were completed well before the completion of MY 1987, i.e., September 30, 1987. Conversely, in the Ford/Jaguar transaction, Ford made its tender offer in early November 1989 and declared t he tender offer "unconditional" on December 10, 1989. These dates and any other possible date for the acquisition are clearly within the 1990 model year, which began on approximately October 1. 1989.

We recognize that manufacturers may produce or import vehicles that are designated as belonging to a particular model year after October 1 of that year. However, for purposes of deciding the model year in which one manufacturer acquires another, we have concluded that the traditional model year is the appropriate frame of reference.

This conclusion is supported by the fact that by early November 1989, the earliest date referred to in your letter, when Ford made its tender offer, it had been selling its MY 1990 models for over a month. The fact that Ford or Jaguar may have produced or imported a small number of MY 1989 cars after the date of the acquisition is not determinative, since it has always been the case that model years can overlap for a given manufacturer, and some prior model year cars may be produced after the commencem ent of a given model year. Thus, any MY 1989 Jaguar vehicles that were imported during the last three months of 1989 should be included in Jaguar's MY 1989 fleet, as they would have been had the acquisition not occurred.

I note that your letter indicated that Ford intended to file its Final 1989 Model Year Report under the CAFE program with all MY 1989 Jaguar vehicles included in Ford's fleet. You stated, however, that you would not file that Report until you received t his agency's views on the propriety of that action. For the reasons set out above, we believe that Ford and Jaguar had separate, distinct fleets in MY 1989, and that therefore separate information should be filed for that model year.

I hope that this letter adequately explains our position on these issues. If you have any questions, please do not hesitate to contact me.

ID: 86-3.3

TYPE: INTERPRETATION-NHTSA

DATE: 05/01/86

FROM: AUTHOR UNAVAILABLE; Elizabeth Hanford Dole; NHTSA

TO: William von Raab -- Commissioner of Customs, U.S. Customs Service

TITLE: FMVSS INTERPRETATION

TEXT:

Mr. William von Raab The Commissioner of Customs United States Customs Service 1301 Constitution Avenue, N.W. Washington, D,C. 20229

This responds to your letter suggesting a potential enforcement problem with the new Federal motor vehicle theft prevention standard promulgated by the National Highway Traffic Safety Administration (NHTSA). As you noted, the Customs Service will be the agency responsible for enforcing the provisions in the theft prevention standard requiring subject vehicles and parts to be properly marked and certified before they are imported into the United States. You stated that it was essential that the Customs Service be provided a list of "authorized individuals or companies which have been found by (the Department of Transportation) to possess the capability and integrity to properly certify imported vehicles and parts." Accordingly, you requested that we provide you with such a list. The Department of Transportation does not authorize individuals or companies to engage in the business of importing and modifying vehicles. Therefore, we cannot provide you with a list such as you requested.

This issue arises primarily with respect to "direct importers". These direct importers are individuals and commercial enterprises that obtain foreign cars not originally manufactured for sale in the United States, bring them into this country under bond, and modify the cars so that they can be certified as being in compliance with the U.S. vehicle safety, emissions, and bumper standards. This is commonly referred to as the automotive "gray market". The statutes mandating the Federal safety, emissions, and bumper standards (15 U.S.C. 1397(b)(3), 42 U.S.C. 7522(b)(2), and 15 U.S.C. 1916(b)(3)) explicitly authorize vehicles not in compliance to be brought into this country under bond. However, the Theft Act (15 U.S.C. 2021 et seq.) contains no such provision. Therefore, direct importers must modify all their subject vehicles to comply with the theft prevention standard before the vehicles are imported, and must certify that the vehicles are in compliance at the time of entry.

You stated in your letter that the theft prevention standard could be read to allow any person to certify compliance of an imported vehicle with the standard and that the Customs Service would have no way to judge the authenticity of the certification or the "ability of the party to certify to compliance at the time of importation." You suggested that vehicles and parts could be imported without being properly marked, if Customs had to accept the certification of any person importing such vehicles or parts.

We do not believe that reliance on the importers' certifications will cause the enforcement problems you fear. If subject vehicles or parts bear a certification that complies with the requirements of the theft prevention standard, the Customs Service should allow those vehicles or parts to be imported. NHTSA enforcement personnel will conduct spot checks of the direct importers' vehicles and parts. If we discover that some direct importers are certifying compliance with the theft prevention standard without actually marking in accordance with that standard, we will take appropriate enforcement actions. We expect these actions will help deter any direct importers or other manufacturers who are tempted to falsely certify compliance with the theft prevention standard.

Although we share your concern that all authorized manufacturers and importers of motor vehicles comply with the theft prevention standard, we have no authority to require any person or entity to register with the Department of Transportation and show a capability to comply with the standard before importing a vehicle. We do currently collect information about importers after they have imported a vehicle, as does the Customs Service. However, the fact that a potential importer has not previously imported a vehicle has no legal significance for our enforcement efforts.

I appreciate your concern for the effective enforcement of our theft prevention standard. Please feel free to contact me if you have any further suggestions or ideas in this regard.

Sincerely,

Original Signed By Elizabeth Hanford Dole

Dear Secretary Dole:

I am writing with respect to the recently issued regulations from the National Highway Traffic Safety Administration implementing the Motor Vehicle Theft Law Enforcement Act of 1984, 50 Fed. Reg. 43166 (October 24, 1985). As you may be aware, the Customs Service is developing regulations for the implementation of the export provisions of the Act as it applies to motor vehicle exports. In addition, the Service is also directed to enforce the import restriction set forth in the Act and implemented by the October 24, 1985 Federal Register notice. I want to direct your attention to a potential enforcement problem which has been brought to my attention with respect to the final regulations issued by NHTSA.

The regulations as issued can be read to allow any person to place a certification label for vehicle identification marking on an imported vehicle. If this is the Department of Transportation's interpretation, the Customs Service will have no basis for judging the authenticity of the certification or the ability of the party to certify to compliance at the time of importation. This raises a significant enforcement issue within the Service. If the Service must accept the certification of any person importing a vehicle or parts, these items may in fact be imported without being properly marked in accordance with the statute. If, however, a list of parties who have the ability to certify compliance can be established and utilized by the Customs Service to approve imported vehicles and parts, the Service could, as it does today, spot check the individuals on this list and carefully check for possible exclusion any other importers. We believe, from an enforcement standpoint, to carry out the purposes of the Motor Vehicle Theft Act that it is essential that the Service have a list of authorized individuals or companies which have been found by your Department to possess the capability and integrity to properly certify imported vehicles and parts.

In order to assure effective enforcement of the Act's regulations, I would appreciate receiving a listing identifying those parties who are authorized to certify compliance as soon as possible so we may proceed with our implementation plans and instructions to the field in a timely fashion.

Yours faithfully,

The Honorable Elizabeth Hanford Dole Secretary of Transportation 400 Seventh Street, S.W. Washington, D.C. 20590

ID: 8262

Jay Lee, President
Pacific Agritrade Inc.
2601 Elliott Ave.
Suite 5139
Seattle, WA 98121

Dear Mr. Lee:

This responds to your January 14, 1993, letter asking for information on how to have an air bag you wish to import from Korea tested by the National Highway Traffic Safety Administration (NHTSA).

I am pleased to have this opportunity to explain our laws and regulations to you. NHTSA is authorized under the National Traffic and Motor Vehicle Safety Act (15 U.S.C. 1381 et seq.; Safety Act) to issue motor vehicle safety standards that apply to the manufacture and sale of new motor vehicles and new items of motor vehicle equipment. NHTSA, however, does not approve motor vehicles or motor vehicle equipment, nor do we endorse any commercial products or conduct pre-sale testing of any commercial products. Instead, the Safety Act establishes a "self-certification" process under which each manufacturer is responsible for certifying that its products meet all applicable safety standards. I note that the term "manufacturer" is defined by section 102(5) of the Safety Act to mean "any person engaged in the manufacturing or assembling of motor vehicles or motor vehicle equipment, including any person importing motor vehicles or motor vehicle equipment for resale." (Emphasis added.)

NHTSA has exercised its authority under the Safety Act to establish Standard No. 208, Occupant Crash Protection (49 CFR 571.208). Standard No. 208 requires, among other things, that passenger cars provide automatic crash protection. Light trucks will also be required to provide automatic crash protection beginning with the 1995 model year. Vehicles equipped with automatic crash protection protect their occupants by means that require no action by vehicle occupants. Compliance with the automatic crash protection requirements of Standard No. 208 is determined in a dynamic crash test. That is, a vehicle must comply with specified injury criteria, as measured on a test dummy, when tested by this agency in a 30 mph barrier crash test.

At this time, manufacturers are not required to use a specific method of automatic crash protection to meet the requirements of Standard No. 208. Instead, each automobile manufacturer is allowed to select the particular method for the automatic crash protection installed in its vehicles. The two types of automatic crash protection currently offered on new passenger cars are automatic safety belts (which help to assure belt use) and air bags (which supplement safety belts and offer some protection even when safety belts are not used).

Please note that the automatic crash protection requirement applies to the performance of the vehicle as a whole, instead of setting requirements for the air bag as an individual item of equipment. This approach permits vehicle manufacturers to "tune" the performance of the air bag to the crash pulse and other specific attributes of each of their vehicle models. However, this approach also means that the Federal standards do not specify specific performance attributes for air bags such as inflated dimensions, actuation time, and the like.

It is unclear from your letter if the air bags you wish to import will be sold to manufacturers for installation in new vehicles or if the air bags will be sold as replacement air bags or retrofit air bags for vehicles which do not have air bags as original equipment. If the air bags are sold to manufacturers for installation in new vehicles, the vehicle manufacturer is required to certify that the vehicle complies with all applicable safety standards, including Standard No. 208. If the air bag is added to a previously certified new motor vehicle prior to its first sale, the person who modifies the vehicle would be an alterer of a previously certified motor vehicle and would be required to certify that, as altered, the vehicle continues to comply with all of the safety standards affected by the installation of the air bag. (See 49 CFR Part 567.7.)

While most of Standard No. 208's requirements are expressed in terms of the performance of the vehicle as a whole and apply only to new vehicles and not to aftermarket equipment, there is one exception to this. Pressure vessels and explosive devices for use in air bag systems must comply with section S9 of Standard No. 208 whether they are part of a new motor vehicle or are aftermarket equipment. Therefore, the manufacturer of these items must certify that they comply with the requirements of S9 of Standard No. 208.

Another Federal requirement that would affect the device if it were installed in a used vehicle, either as a replacement or retrofit air bag, is the "render inoperative" prohibition in section 108(a)(2)(A) of the Safety Act (15 U.S.C. 1397(a)(2)(A)) would apply. That section provides that:

No manufacturer, distributor, dealer, or motor vehicle repair business shall knowingly render inoperative, in whole or in part, any device or element of design installed on or in a motor vehicle ... in compliance with an applicable Federal motor vehicle safety standard.

The "render inoperative" provision would prohibit a commercial business from installing an aftermarket air bag in a manner that would negatively affect the vehicle's compliance with Standard No. 208.

You should also note that a replacement or retrofit air bag would be considered "motor vehicle equipment" within the meaning of the Safety Act. Therefore, if the air bag contained a defect (either in manufacture, design, or performance) that relates to motor vehicle safety, the manufacturer would be required to conduct a recall campaign to notify owners and to remedy the defect free of charge. You should be aware that recently the manufacturer of an aftermarket air bag that did not provide crash protection benefits to vehicle occupants ceased offering its air bags following a NHTSA investigation. In addition, NHTSA provided information to the Federal Trade Commission concerning the claims made by the manufacturer in its advertising. We suggest you carefully review the manufacturer's test data on the devices you are considering importing to assure yourself that the air bag would afford adequate protection to vehicle occupants in crashes and that the claims made in the company's advertising are true.

I have enclosed an information sheet that identifies relevant Federal statutes and NHTSA standards and regulations affecting motor vehicle and motor vehicle equipment manufacturers, and explains how to obtain copies of these materials.

I hope you find this information helpful. If you have any other questions, please contact Mary Versailles of my staff at this address or by phone at (202) 366-2992.

Sincerely,

John Womack Acting Chief Counsel

Enclosure

ref:VSA#208 d:3/26/93

ID: 8263

Mr. Steven C. Friedman
Director of New Product Development
Saddleman, Inc.
P.O. Box 3656
80 West 900 South
Logan, UT 84323-3656

Dear Mr. Friedman:

This responds to your January 19, 1993, letter asking for information on any Federal motor vehicle safety standards applicable to retrofit air bags. Your letter states that these devices are intended for vehicles which do not have factory-installed air bags.

I am pleased to have this opportunity to explain our laws and regulations to you. The National Traffic and Motor Vehicle Safety Act (the Safety Act; 15 U.S.C. 1381 et seq.) authorizes this agency to issue Federal motor vehicle safety standards applicable to new motor vehicles and new items of motor vehicle equipment. NHTSA has exercised this authority to establish Standard No. 208, Occupant Crash Protection (49 CFR 571.208). Standard No. 208 requires, among other things, that passenger cars provide automatic crash protection. Light trucks will also be required to provide automatic crash protection beginning with the 1995 model year. Vehicles equipped with automatic crash protection protect their occupants by means that require no action by vehicle occupants. Compliance with the automatic crash protection requirements of Standard No. 208 is determined in a dynamic crash test. That is, a vehicle must comply with specified injury criteria, as measured on a test dummy, when tested by this agency in a 30 mph barrier crash test.

At this time, manufacturers are not required to use a specific method of automatic crash protection to meet the requirements of Standard No. 208. Instead, each automobile manufacturer is allowed to select the particular method for the automatic crash protection installed in its vehicles. The two types of automatic crash protection currently offered on new passenger cars are automatic safety belts (which help to assure belt use) and air bags (which supplement safety belts and offer some protection even when safety belts are not used).

Please note that the automatic crash protection requirement applies to the performance of the vehicle as a whole, instead of setting requirements for the air bag as an individual item of equipment. This approach permits vehicle manufacturers to "tune" the performance of the air bag to the crash pulse and other specific attributes of each of their vehicle models. However, this approach also means that the Federal standards do not specify specific performance attributes for air bags such as inflated dimensions, actuation time, and the like.

While most of Standard No. 208's requirements are expressed in terms of the performance of the vehicle as a whole and apply only to new vehicles and not to aftermarket equipment, there is one exception to this. Pressure vessels and explosive devices for use in air bag systems must comply with section S9 of Standard No. 208 whether they are part of a new motor vehicle or are aftermarket equipment. Therefore, the manufacturer of these items must certify that they comply with the requirements of S9 of Standard No. 208.

Another Federal requirement that would affect a retrofit air bag is the "render inoperative" prohibition in section 108(a)(2)(A) of the Safety Act (15 U.S.C. 1397(a)(2)(A)). That section provides that:

No manufacturer, distributor, dealer, or motor vehicle repair business shall knowingly render inoperative, in whole or in part, any device or element of design installed on or in a motor vehicle ... in compliance with an applicable Federal motor vehicle safety standard.

The "render inoperative" provision would prohibit a commercial business from installing an aftermarket air bag in a manner that would negatively affect the vehicle's compliance with Standard No. 208 or any other safety standard.

You should also note that a replacement or retrofit air bag would be considered "motor vehicle equipment" within the meaning of the Safety Act. Therefore, if the air bag contained a defect (either in manufacture, design, or performance) that relates to motor vehicle safety, the manufacturer would be required to conduct a recall campaign to notify owners and to remedy the defect free of charge. Please note that recently a manufacturer of an aftermarket air bag that did not provide any crash protection benefits to vehicle occupants recalled its air bags following a NHTSA investigation. In addition, NHTSA provided information to the Federal Trade Commission concerning the claims made by the manufacturer in its advertising. We suggest you carefully review the test data on the devices you are considering importing to assure yourself that the air bag would afford adequate protection to vehicle occupants in crashes and that the claims made in the company's advertising are true.

I also note that, based on the product information you provided with your letter, NHTSA technical staff raised possible concerns about the air bag you are considering importing. The design differs from other air bags in two significant ways. First, while the crash sensor for air bag systems is normally located in the vehicle structure, yours is not. Second, while air bags generally are released toward the driver's chest from the steering wheel, your air bag would be released from above toward the driver's face and chest.

For driver crash protection, the crash sensor of an air bag system must initiate deployment of the air bag early enough in a crash to position the inflated air bag between the driver and the steering wheel in time to cushion the impact. At the same time, it must not be so sensitive that it deploys the air bag in non-crash situations. Given the ways in which the crash sensor of your system differs from other air bag systems, our technical staff questions whether it is possible for it to initiate deployment early enough in a crash to provide occupant protection yet not be so sensitive that it deploys the air bag in non-crash situations. In addition, while the inadvertent deployment of any air bag system would raise safety concerns, the location of your air bag would increase those concerns, since it would appear to interfere with the driver's forward vision even after deflation.

I have enclosed an information sheet that identifies relevant Federal statutes and NHTSA standards and regulations affecting motor vehicle and motor vehicle equipment manufacturers, and explains how to get copies of these materials.

I hope you find this information helpful. If you have any other questions, please contact Mary Versailles of my staff at this address or by phone at (202) 366-2992.

Sincerely,

John Womack Acting Chief Counsel

Enclosure ref:VSA#208 d:3/26/93

ID: nht87-1.27

TYPE: INTERPRETATION-NHTSA

DATE: 02/02/87

FROM: AUTHOR UNAVAILABLE; Erika Z. Jones; NHTSA

TO: Guy Vander Jagt

TITLE: FMVSS INTERPRETATION

TEXT:

The Honorable Guy Vander Jagt U.S. House of Representatives Washington, DC 20515-2209

Dear Mr. Vander Jagt:

Thank you for your November 3, 1986, letter on behalf of your constituent, Miss Reva Darling of Ludington, Michigan, who asked about requirements for safety belts on buses used for school transportation and other purposes. Your letter has been referred t o my office for reply, since the National Highway Traffic Safety Administration (NHTSA) is responsible for administering Federal programs relating to school bus safety.

Miss Darling is interested in extending the applicability of Michigan's safety belt use law to belts on "public" buses. She believes that safety belts should be installed on school buses and buses used by transit and charter companies, and suggests that funding be made available to encourage the installation of belts on those vehicles.

I appreciate this opportunity to respond to your inquiry. By way of background information, under the National Traffic and Motor Vehicle Safety Act, NHTSA is authorized to develop motor vehicle safety standards applicable to all new motor vehicles, inclu ding school buses and charter and transit buses. Our belt installation requirements vary according to the type of vehicle; for example, different requirements apply to passenger cars than to buses. For buses generally, our requirements only specify that a safety belt must be installed for the bus driver. They do not require safety belts for passengers on large buses used for pupil transportation and other purposes.

We have not required large buses to have safety belts for passengers because we have not found sufficient justification for such a requirement, given that buses have excellent safety records. This safety record arises in part from the fact that, in crash es with other vehicles, buses tend to be substantially heavier than the other vehicle while cars tend to weigh approximately the same as the vehicle with which they crash. As a result, the crash forces experienced by bus occupants tend to be less than th ose experienced by car occupants. Also, because of the elevated stating positions in large buses, bus occupants sit above the area typically damaged in a collision with another vehicle. Further, we require large school buses to provide passenger crash pr otection with higher and stronger seats, additional seat padding, and better seat spacing and performance. That approach, together with the other attributes of large school buses, provides adequate levels of crash protection in school buses without safet y belts. I have enclosed a copy of a NHTSA publication, "Safety Belts in School Buses," which addresses in more detail the issue of whether safety belts should be required on school buses.

NHTSA does not prevent States and local jurisdictions that wish to order safety belts on their own large buses from doing so. Although large buses are not required by Federal law to have passenger safety belts, bus owners are free to purchase their buses with safety belts installed if they believe their particular circumstances warrant such installation. However, we have no reason at this time to believe that such an installation is necessary as a Federal requirement applicable to all transit buses.

Miss Darling asks whether there have been any proposals to apply Michigan's safety belt use law to public buses. Safety belt use requirements art a matter of State rather than Federal law. Therefore, Michigan state officials would be able to answer Miss Darling's particular question concerning the state law.

On a final matter, Miss Darling suggested that funding be made available to equip buses with safety belts. For your information, while the Administration has not proposed any legislation affecting school buses, H.R. 749 (introduced in the 99th Congress) proposed incentive grants to the States encouraging the adoption and enforcement of laws requiring the use of safety belts in school buses. H.R. 749, however, was not enacted.

I hope this information is helpful. Please contact my office if we can be of further assistance.

Sincerely,

Erika Z. Jones Chief Counsel

The Honorable Guy Vander Jagt House of Representatives Washington, D.C. 20515

Dear Vander Jagt:

Thank you for your letter forwarding correspondence from your constituent, Miss Reva Darling.

I have transmitted your inquiry to the appropriate Departmental officials who are familiar with this matter and they will respond to you directly.

I appreciate your contacting me and hope you will not hesitate to call if I can be of any further assistance.

Sincerely,

Edward J. Babbitt Director, Office of Congressional Affairs

Mr. Ed Babbitt Director of Congressional Affairs Department of Transportation 400 7th Street, S.W., Room 10406 Washington, D.C. 20590

Dear Mr. Babbitt:

I have enclosed a copy of correspondence I received from a constituent, Miss Reva Darling, relative to seat belts in public buses.

As you will note, Miss Darling is interested any information on this issue. I would appreciate any information or comments you may be able to provide in response to her query.

Thank you for your time and attention to this matter. I look forward to hearing from you in the near future.

With all good wishes,

Sincerely,

Guy Vander Jagt Member of Congress

Rep. Guy Vander Jagt 2334 Rayburn Bldg. Washington, D.C. 20515

Dear Rep. Vander Jagt,

Hello, my name is Reva Darling and I am a junior in high school. I am writing in regard to the recent seatbelt law established in Michigan last year.

My question is this: Has there been any proposals in conjunction with applying this law to public buses? By buses, I am referring to both charter and/or school related buses. I believe that funding to make seatbelts possible on these vehicles is highly worthwhile considering the number of passengers and lives involved. I would appreciate any information that you could send me about hi s.

Thank you for your time.

Sincerely,

Reva Darling

Reva Darling 2456 S. Meyers Rd. Ludington, MI 49431

ID: nht93-2.20

DATE: March 18, 1993

FROM: Jeffery A. Kester -- Product Development, Green Wheels Electric Car Company

TO: John Womack -- Acting Chief Consul, NHTSA

TITLE: Re: Electric Vehicle Conversions and the FMVSS

ATTACHMT: Attached to letter dated 4-21-93 from John Womack to Jeffery A. Kester (A41; 108(a)(2)(A))

TEXT: I have recently spent a few enjoyable afternoons on the phone with various members of the DOT, and now I find my path leads to you. The recommendation to write to you comes from Z. Taylor Vinson and he believes you may be the one to clarify my current dilemma.

I am a principal partner in a company that intends to produce electric vehicles (EVs) for retail sale. We are not building our EVs from scratch. Instead, we intend to perform conversions on existing (used) internal combustion engine vehicles (ICEVs). We are currently converting a 1981 Volkswagen Rabbit and intend to convert VWs of similar (1975-1984) vintage. We plan to expand our vehicle conversion operations to include 1985 and newer VW models, but we have no intention of converting new vehicles. Therefore, according to section 108, (b)(1) of the National Traffic and Motor Vehicle Safety Act (2/92 rev.), I am not bound to comply with the FMVSS and have no reason to petition for exemption from any standards in the FMVSS.

That's the rub. NTMVSA section 108(a)(2)(A) says in simple terms that I cannot "render inoperative ... any device or element of design ..." unless I believe it will not be used during the time it is rendered inoperative. I understand the purpose of this subsection, (I was in auto repair/restoration for over 12 years) but I believe it takes on new aspects when applied to rendering inoperative "devices or elements of design" on a permanent basis. The vehicle will obviously be used during the time such devices or elements of design no longer exist.

Have I found the fabled Catch 22?--I cannot receive exemptions from the FMVSS because I intend to convert cars subsequent to their first purchase (section 108 (b)(1)) so those standards do not apply, yet it appears that I will be in gross violation of section 108(a)(2)(A). I may have found a way to satisfy the needs of both sections, but it entails some creative interpretation of section 108(a)(2)(A).

The interpretation is as follows: I should be able to render inoperative devices or elements of design without violating the FMVSS, because I believe that said inoperative devices or elements of design will not compromise vehicle compliance to applicable Federal motor vehicle safety standards during the time said motor vehicle is in operation. The paramount wording of section 108(a)(2)(A) is "... applicable Federal motor vehicle safety standards ..." I submit the example of the ICEV fuel system to which many FMVSS apply. Since that fuel system will mo longer exist on an EV conversion, there will be no applicable Federal motor vehicle safety standards in regard to the EV fuel system, and I will not have rendered inoperative a device or element of design of an applicable FMVSS.

The other operative phrase of section 108(a)(2)(A) is "... unless such ... business reasonably believes ..." I submit that I must have some basis for my belief in regard to the safety of the vehicle with devices or elements of design that I have rendered inoperative, and that basis must come from the FMVSS.

That brings me to you. I require something more than the right to tell the local Registry of Motor Vehicles (RMV), and any prospective customers, that my vehicles comply to the FMVSS simply because I believe they do and that the FMVSS does not really apply anyway because I sell used vehicles. I hereby request your action on the following matters:

1) That you submit to me in writing your recommendation of the viability of my interpretation of section 108(a)(2)(A) and (b)(1) of the NTMVSA.

2) That, if you believe my interpretation to be viable, you submit a letter stating such that I may distribute to prospective clients and/or the RMV to aid me in convincing them of the safety of converted EVs.

3) That you submit to me in writing, your recommendations for any further action in regard to compliance with section 108(a)(2)(A).

4) That you submit to me in writing, any information or source for information concerning petition for exemption from section 108(a)(2)(A) under section 108 (a)(2)(B) if applicable.

5) That you submit to me in writing, any information or source for information concerning the status of any report, study or investigation resulting from section 108(b)(1) concerning the establishment of uniform Federal motor vehicle safety standards applicable to all used motor vehicles.

The reason for all of this is very simple. I want to do the right thing in regard to motor vehicle safety. The fact that used cars that I convert are not required to be in compliance with the FMVSS, will not make those vehicles safe. I am attempting to design safe, reliable vehicles that I can produce on a small-scale production basis. As one of the few professional mechanics involved in the EV industry (a somewhat un-nerving fact that I have discovered over thelast year), I am very concerned that other companies may not be aware of what they are doing to the structural integrity of an ICEV when they convert it to an EV. Many of these small companies have had no contact whatsoever with DOT, or they simply opt to offer "conversion kits" which release them from any safety liability. There is currently an explosion in the small-scale EV industry, with many companies claiming to convert any ICEV to an EV. This is definitely good but it is happening faster than safety regulations are being made. Public acceptance of these vehicles is promising but so far, has been full of skepticism about safety and reliability. I believe that without some kind of Federal regulatory intervention, the poor performance and possibly disastrous outcome in the event of an EV crash, will lead to the abandonment of the modicum of public interest now being express in the EV industry.

The general opinion of the public and press is that EVs are interesting, but will not represent a viable transportation alternative until better batteries

are in production and available at a reasonable price. I am confident that better batteries will be available in the next few years. I am concerned that, their will be no standards in place to regulate how those batteries are integrated into the automobile industry. We are faced with the problem of EV safety right now, and I believe that some action must be taken now to remedy the situation.

Thank you very much for taking the time to read this, if you have any, questions or comments about this letter or anything to do with EVs, please do not hesitate to write or call. I hope I hear from you soon.