ID: 1985-03.14

TYPE: INTERPRETATION-NHTSA

DATE: 07/10/85

FROM: AUTHOR UNAVAILABLE; Jeffrey R. Miller; NHTSA

TO: Mr. Lee Comeau, Associate

TITLE: FMVSS INTERPRETATION

TEXT:

Mr. Lee Comeau, Associate Bureau of Educational Management Services New York State Education Department Cultural Education Center Room 3059 Albany, New York 12230

Dear Mr. Comeau:

This responds to your April 12, 1985 letter concerning the January 1985 school bus safety study prepared for the Canadian government (Transport Canada). You were particularly interested in the results of the study relating to safety belts in school buses.

The Transport Canada study found that "The use of a type I seat belt system in any current design of school bus may result in more severe head and neck injuries for a belted occupant than an unbelted one, in a severe frontal collision." You asked for our opinion as to the reliability of the findings, and whether they would be admissible in a court of law. You also asked whether a school district or bus manufacturer can be liable for negligence if a seat belt causes injury to a belted occupant.

I must explain that we are unable to issue an opinion regarding either the admissibility or effect of the Canadian study's findings in a court of law. This agency is responsible for establishing Federal motor vehicle safety standards and investigating alleged safety-related defects. We are not authorized to participate in or render advisory opinions on private litigation. The issues you raised would depend on the type of legal proceeding and the evidentiary rules of the particular court system, as well as other evidence that might be introduced in a lawsuit. questions concerning negligence and private liability would also have to be answered according to the law of the particular jurisdiction. Since these matters are usually governed by state law, I suggest that you consult with your attorney to discuss how New York law would apply.

As to whether the Canadian study is reliable, this agency is in the process of reviewing the study's findings. Thus far, we have no reason to dispute its conclusions, given the nature of the test conducted. The results of the study appear to be in agreement with some laboratory tests conducted within the United States, including sled tests conducted by the agency in 1978. Although the Canadian test results appear to be accurate, we would like to emphasize that the study involved only a severe (48 km/h) frontal barrier crash test. Questions concerning how safety belts would provide benefits in other types of crashes, such as side impacts or rollovers, were not addressed. In addition, it must be noted that the study was based on a test, not on real-world statistics. We believe that these factors should be taken into consideration when evaluating the results of the Canadian study and its implications for safety belts on school buses.

As you may know, our Federal motor vehicle safety standards (FMVSS's) do not require the installation of safety belts on new large school buses, but any school district that wishes to have such belts installed is free to do so. We do require safety belts on smaller school buses, because we believe belts are particularly effective in protecting occupants in such vehicles. For larger school buses (those with gross vehicle weight ratings over 10,000 pounds), we require "compartmentalization" -- i.e., high seat backs with extra padding -- to provide occupant protection, and we believe the concept works well.

In that regard, I note the Canadian study found that the requirements for compartmentalization required by Canadian safety standard 222 (CMVSS No. 222) "functions as intended during frontal impacts and provides excellent protection for occupants." FMVSS No. 222, our safety standard mandating compartmentalization in school buses, has requirements similar to CMVSS 222. We believe that the Canadian study further supports the effectiveness of the compartmentalization concept required by FMVSS No. 222.

I hope this information is helpful.

Sincerely,

Jeffrey R. Miller Chief Counsel

April 12, 1985

Mr. Jeffrey Miller, Chief Counsel National Highway Traffic Safety Administration 400 7th Street S.W. Room 5219 Washington, DC 20590

Dear Mr. Miller:

The Canadian government has recently released findings from crash tests that were conducted to test, among other things, the worthiness of seat belts on school buses. The results have been published and are enclosed for your review.

My purpose for writing is twofold:

1. Will you review the Canadian test crash data and determine if the findings are reliable and admissible in a court of law?

2. If the findings are reliable, can a school district, bus manufacturer or seat belt company be held liable for negligence in the event a belted occupant suffers injuries in a school bus accident which are directly related to the wearing of the seat belt?

Since New York has some districts who currently use seat belts and others who are considering the possibility, your timely reply to the inquiry will be greatly appreciated.

Sincerely,

Lee Comeau, Associate Bureau of Educational Management Services Room 3059 Cultural Education Center Albany, Hew York 12230 (518) 474-4738

ss

ID: 1985-03.15

TYPE: INTERPRETATION-NHTSA

DATE: 07/10/85

FROM: AUTHOR UNAVAILABLE; Jeffrey R. Miller; NHTSA

TO: Mr. Bernard Cantleberry

TITLE: FMVSS INTERPRETATION

TEXT:

Mr. Bernard Cantleberry 5958 Maplewood Road Mayfield Heights, Ohio 44124

Dear Mr. Cantleberry:

This responds to your letter to this office, in which you sought approval from the Department of Transportation and this agency for your hydraulic brake lock. Neither the Department nor this agency have the authority to approve any motor vehicles or motor vehicle equipment. Instead, the manufacturer of the vehicles or equipment is required to certify that it complies with all applicable standards.

The requirement for manufacturer certification is contained in section 114 of the National Traffic and Motor Vehicle Safety Act, (hereinafter "the Safety Act; 15 U.S.C. 1403) which reads as follows:

Every manufacturer or distributor of a motor vehicle or motor vehicle equipment shall furnish to the distributor or dealer at the time of delivery of such vehicle or equipment by such manufacturer or distributor the certification that each such vehicle or item of motor vehicle equipment conforms to all applicable Federal Motor Vehicle Safety Standards. In the case of an item of motor vehicle equipment such certification may be in the form of a label or tag on such item or on the outside of a container in which such item is delivered.

Under Section 114, motor vehicle and equipment manufacturers must them- selves certify that their products comply with all applicable standards. The safety certification procedure thus differs from the government type approval procedure used in Europe. Under the European procedure, a manufacturer delivers its product to a governmental entity which tests the product and then determines whether it should be approved. If the product is approved, it may then be sold.

In the case of your hydraulic brake lock, there is no applicable standard for it as a separate item of motor vehicle equipment. However, if you want to have the hydraulic brake lock installed as original equipment on new vehicles, the vehicle manufacturer would have to certify that the entire brake system with the hydraulic brake lock installed satisfied the requirements of Standard No. 105, Hydraulic Brake Systems (49 CFR S571.105; copy enclosed).

Generally speaking, the requirements of Standard No. 105 apply to motor vehicles prior to their first purchase in good faith, and not to aftermarket accessories for use with or in the vehicle. The general rule is that your hydraulic brake lock may be added to the vehicle after its first purchase, even if the addition of your brake lock causes the vehicle to no longer comply with the requirements of Standard No. 105, without violating any legal requirements.

This general rule is, however, limited by the application of the provisions of section 108(a)(2)(A) of the Safety Act (15 U.S.C. 1397(a)(2)(A)). 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...". The performance capabilities of the hydraulic brake system on the vehicle are considered an element of design installed in a motor vehicle in compliance with Standard No. 105. Thus, if any manufacturer, distributor, dealer, or motor vehicle repair business adds your hydraulic brake lock to a vehicle and knowingly causes the vehicle to no longer comply with Standard No. 105, that person or entity has violated the section 108(a)(2)(A) prohibition. Section 109 of the Safety Act (15 U.S.C. 1398) specifies a civil penalty of up to $1000 for each violation of section 108, and each installation which rendered inoperative compliance with Standard No. 105 would be considered a separate violation.

You should note that the prohibitions of section 108(a)(2)(A) do not apply to the vehicle owner rendering inoperative some element of design on his or her vehicle, and therefore hydraulic brake locks which are sold to and installed by vehicle owners need not be checked to see if they cause the vehicle to no longer comply with the requirements of Standard No. 105. Of course, state product liability law would also affect the installation of your device. I suggest that you discuss this matter with a local attorney.

I would also recommend that you per form some testing or analysis to learn what effect the addition of your hydraulic brake lock has on the braking performance of vehicles on which it is installed. If its addition does not affect the vehicle's compliance with Standard No. 105, the brake lock could be installed by manufacturers, distributors, dealers, and motor vehicle repair businesses without violating any legal requirements. If the addition of the hydraulic brake lock causes the vehicle to no longer comply with Standard No. 105, it may be sold as an aftermarket accessory, but may not legally be installed on a vehicle by any manufacturer, distributor, dealer, or motor vehicle repair business.

Sincerely,

Jeffrey R. Miller Chief Counsel Enclosures

May 6, 1985.

Office of the Chief Counsel: To Whom It May Concern;

Dr. Carl Clark of your dept. recommended that I write to you and put forth what I have and what I want in relation to an innovative Anti Theft device.

I realize that what I have designed is not completely new to the field , but the inner workings, construction , design of operation, safety factors and Anti Theft capabilities are phenomenal, along with other uses.

I am describing a dual hydraulic brake lock that is operated by dual vacuum actuators that work in direct opposite of the way that vacuum actuators operate.

The system is designed in such a way that even while driving down the road and you lose engine power the system does not shut down causing brake failure. The system is also designed that in case of an electrical failure in the vehicle while the brakes are locked you always have full control to open the system to allow towing which is controlled by the only nonpickable lock on the market, and I am not referring to the key system that is designed for the Mercedes with the dimples. The system is designed in such a way that prevents anyone from overcoming it to allow removal of the vehicle, short of cutting the brake lines and driving the vehicle away with the use of the emergency brake, but that all takes time and that generally is what the thieves don't have.

When the hydraulic lock is set it is the absence of vacuum that operates the device, overcoming the device due to my design is impossible.

I keep referring to design , in actuality the partially finished product has been installed on in automobile and has been in test for about two months. By partially finished , I mean that only a single system has been prototyped and was installed on a front wheel drive vehicle. The dual system has been designed and is entering its completed stages. The system works exactly the way it was designed and is operating with no problems.

The device is installed downstream of the differential valve on some models and installed in the brake lines of others that have no differential valve, such as on the one that I am testing it on. The device does not upset the original brake system in any way or does it cause a difference in brake pressure or operation of the original system.

The reason that I am writing to you dept. is that I am looking for sanction from the dept. is that I am Dept. Of Natural Highway Traffic Safety, unless they are one in the same, for my device.

The beauty part of my device is that In testing on and off the vehicle the device held the brakes in a locked up position for a period of approximately two weeks with no pressure loss, unlike two of the other devices that have been produced and that I hive tested and that bears D. O. I. approval.

I am that Service Manager of the largest selling Ford agency in the country and the level of integrity that flows from xxxxxx Mr. Sam Marshall down thru all of his personal is something that would institute a desire for safety in something as in this hydraulic brake lock,I would greatly appreciate your response and requirements pertaining to this device, and what steps I have to take to obtain your approval and sanction.

Thank you for your time and hopefully your assistance;

Bernard Cantleberry 5958 Maplewood Rd. Mayfield Hgts, Ohio 44124

ID: 2074y

Mr. Sadato Kadoya
Mazda Research & Development of North America, Inc.
1203 Woodbridge Avenue
Ann Arbor, MI 48105

Dear Mr. Kadoya:

This is in reply to your letter of August 24, l989, with respect to an interpretation of paragraph S5.3.1.8 of Standard No. l08, as it applies to the location of center highmounted stop lamps.

The paragraph requires that no portion of the lens shall be lower than 3 inches below the rear window, if the lamp is mounted below the rear window. Your letter depicts two areas in which a lamp lens may be mounted, denoted "(A)" and "(B)". In both, the lower edge of the rear window is curved. In "(A)", the boundary of the allowable area is curved, and follows the curve of the lower edge of the rear window at a parallel distance of 3 inches. In "(B)", the boundary of the allowable area is a straight line which measures 3 inches from the end of the lower edge of the rear window, but which is greater than 3 inches at all other points because of the curve of the window.

The initial requirement of paragraph S5.3.1.8 is that the highmounted lamp be "mounted with its center on the vertical centerline of the passenger car as the car is viewed from the rear." This means that the 3-inch distance is measured from the lower edge of the rear window that is at the vertical centerline. Thus, your "(A)" is the correct location because the boundary line is 3 inches directly below the center point of the vertical centerline, and your "(B)" is not acceptable because its boundary line is more than 3 inches below that point.

I hope that this answers your question.

Sincerely,

Stephen P. Wood Acting Chief Counsel

ref:l08 d:l0/6/89

ID: 20754ogm

Patrick M. Raher, Esq.
Hogan and Hartson, L.L.P.
Columbia Square
555 Thirteenth Street, NW
Washington, DC 20004

Dear Mr. Raher:

This is in response to your inquiry regarding the visual and audible seat belt warning requirements incorporated into Federal Motor Vehicle Safety Standard No. 208, Occupant Crash Protection. Your letter describes the operation of the visual and audible warning systems in the 2000 model year Mercedes-Benz M-Class vehicle. In this vehicle, the visual and audible warning system may operate in one of two modes depending on whether the driver fastens his or her seat belt before or after turning the ignition key to the "on" or "start" position. You indicate that if the driver enters the vehicle and turns the key to the "on" or "start" position prior to fastening his or her seat belt, a visual warning will flash and an audible warning will sound for eight seconds or until the driver fastens his or her seat belt. If the driver enters the vehicle, fastens his or her seat belt and then turns the key to the "on" or "start" position, the visual warning will flash for 4 to 8 seconds and the audible warning will sound for approximately two seconds. You ask if the latter mode of operation, which you describe as "a vehicle start up systems check" complies with the requirements of Standard No. 208, particularly the provisions of S7.3 of that standard.

While acknowledging that S7.3 of Standard No. 208 indicates that an audible warning may only sound when the key is turned to the "on" or "start" position and the driver's belt is not fastened, you submit that the two second audible signal present in the Mercedes-Benz vehicle when a belted driver turns the key to the "on" or "start" position is not an audible warning as that term used in Standard No. 208. Instead, you indicate that the two second audible warning is a limited duration signal that provides the driver with notification that the audible belt warning system is functioning properly. In your view, the two second duration of this "check" signal is sufficiently shorter than the 4 to 8 second warning established by S7.3 so that drivers will neither be confused or annoyed by a signal that sounds when the belt is fastened, even though this is the same signal that is activated when the belt is not fastened. In addition, as S7.3 specifies that the audible warning shall be 4 to 8 seconds in length, you submit that a shorter or longer signal is permissible.

The agency does not agree with your suggested interpretation. Paragraph S7.3 of Standard No. 208 requires a seat belt warning system that activates a 4 to 8-second warning light when the vehicle's ignition switch is moved to the "on" or "start" position (condition "a"), and a 4 to 8-second audible signal when condition "a" exists and the driver's lap belt is not fastened (condition "b"). Under the mode of operation you describe as occurring when the seat belt is fastened prior to the key being turned to the "on" or "start" position, the audible signal would be activated when ignition switch is moved to the "on" or "start" position and when the driver's lap belt is fastened - when both conditions "a" and "b" exist. However, it would also be activated when a driver's belt is fastened - when condition "a" alone exists.

The functioning of the audible signal when the driver's belt is fastened is not permissible under the standard. The rulemaking notices which led to adoption of the current requirement stated that the agency's intent was that the audible signal operate only if the driver's lap belt is not in use. The agency expressed that same intent in the standard by specifying the light was to function when ignition switch is moved to the "on" or "start" position and the audible signal was only to sound when the ignition switch is moved to the "on" or "start" position and the driver's belt remains unfastened. To interpret the standard to permit the audible signal to operate when the ignition switch is moved to the "on" or "start" position condition regardless of whether the belt is fastened would be to make purposeless the specification that the audible signal sound only when a belt is not fastened.

Further, as NHTSA has emphasized in past interpretations and rulemaking notices, the audible warning signal is most effective when employed judiciously. In establishing the warning signal requirements, restrictions were placed on the operation of the audible warning signal in consideration of the irritation factor associated with the signal but not with the light. To provide a reminder and incentive for safety belt use and to avoid subjecting the conscientious belt user to having to hear an audible reminder to do something that he or she has already done, the agency specified that the signal would not function if the driver's safety belt was fastened.

Your letter indicates that Mercedes-Benz believes that the operation of the audible warning when the driver's belt is fastened serves a valuable purpose, i.e. it purportedly serves as a "vehicle start-up systems check" that alerts the driver that all warning systems are operational. The sounding of the audible warning is, you contend, no different from that illumination of various warning light telltales that are activated when the ignition key is first switched to the on position. Mercedes-Benz believes, therefore, that the sounding of the audible warning for a 2 to 4 second period at this time will neither confuse or annoy drivers any more than the flashing of a telltale at the same time. You further submit that the agency has never indicated, either by regulation or interpretation, that an audible warning that sounds for less than the regulatory time frame of 4 to 8 seconds is prohibited. Last, you indicate that most drivers fasten their belts after turning the ignition switch to the "on" position. In such a case, these drivers would never be subjected to the audible warning that would occur in the Mercedes-Benz vehicle when the belt is already fastened.

NHTSA disagrees with your view of the utility of the audible warning sounding when a belt is already fastened. An examination of the owner's manual for the 2000 model year M-Class vehicle does not reveal any mention of an audible warning "check" function. Without denying the importance of a functioning belt warning system, NHTSA believes that operation of the audible belt warning when the belt is fastened could both confuse and aggravate drivers. This phenomenon becomes particularly acute where, as here, vehicle users are not informed as to the nature and purpose of the "check" signal. The agency also disagrees with your view that our regulations and past interpretations indicate that any such audible warning that is shorter or longer in duration than 4 to 8 seconds when a belt is already fastened is permissible. Both the regulations and our past interpretations make it clear that the audible warning may only sound for 4 to 8 seconds when the ignition switch is moved to the "on" or "start" position and the driver's belt remains unfastened. In regards to your contention that most drivers will never be subjected to the superfluous audible warning, we note that the requirements for belt warnings are intended to establish performance that will adequately protect all drivers.

I hope that this is responsive to your request. If you have any further questions or would like to discuss this matter further, please contact Otto Matheke of my staff at (202) 366-5253.

Sincerely,
Frank Seales, Jr.
Chief Counsel
ref:208
d.7/12/00

ID: 20759.drn

Mr. Matthew Dombrowski
St. Anne's Infant and Maternity Home
4901 Eastern Avenue
Hyattsville, MD 20782

Dear Mr. Dombrowski:

This responds to your letter asking for a copy of "the recently approved rule or law regarding the use of 15 passenger vans for the transportation of children to or from preschool through grade 12." At the outset, let me state that there is no new Federal law that regulates how children must be transported. Instead, as explained below, we have recently reexamined how our requirements apply to certain buses used to transport school children.

The National Highway Traffic Safety Administration (NHTSA) is authorized to issue and enforce Federal motor vehicle safety standards (FMVSS) applicable to new motor vehicles. Our statute at 49 U.S.C. 30112 requires any person selling or leasing a new vehicle to sell or lease a vehicle that meets all applicable standards. Accordingly, persons selling or leasing a new "school bus" must sell or lease a vehicle that meets the safety standards applicable to school buses. Our statute defines a "schoolbus" as any vehicle that is designed for carrying a driver and more than 10 passengers and which, NHTSA decides, is likely to be "used significantly" to transport "preprimary, primary, and secondary" students to or from school or related events. 49 U.S.C. 30125. By regulation, the capacity threshold for school buses corresponds to that of buses -- vehicles designed for carrying more than ten (10) persons. For example, a 15-person van that is likely to be used significantly to transport students is a "school bus." Persons selling or leasing new 15-person vans for such use must sell or lease a van that meets our school bus standards.

In determining whether a dealer must sell a school bus to a facility, we distinguish between facilities that provide educational programs and those that are strictly custodial. We do not consider facilities that provide custodial programs to be "schools." However, in recent interpretations (see the attached July 23, 1998 letter to Mr. Don Cote) we have stressed that, even if a bus were sold to a facility that provides custodial care, if that facility were purchasing the new bus to use significantly to transport students to or from a school or events related to a school, a dealer knowing of this purpose would be required to sell a school bus.

Because our laws apply only to the manufacture and sale of new motor vehicles, we do not prohibit schools or other facilities from using large vans to transport school children, even when the vehicles do not meet Federal school bus safety standards. However, each State has the authority to set its own standards regarding the use of motor vehicles, including school buses. For this reason, Maryland law should be consulted to see if there are regulations about how children must be transported.

In conclusion, we wish to emphasize that school buses are one of the safest forms of transportation in this country, and that we therefore strongly recommend that all buses that are used to transport school children be certified as meeting NHTSA's school bus safety standards. In addition, using 15-person vans that do not meet NHTSA's school bus standards to transport students could result in liability in the event of a crash.

I am enclosing NHTSA's publication: "School Bus Safety: Safe Passage for America's Children." This brochure explains the safety enhancements of a school bus that makes school buses safer than "conventional vans." There are small school buses available that seat 15 children. While school buses are more expensive than large vans, we believe that the cost difference is not so large that it should prevent facilities from acquiring school buses. The cost range for 15-passenger school buses is approximately $30-32,000, compared to $25-28,000 for 15-passenger vans. The longer service life for school buses will offset a part of this difference.

Our belief that vehicles providing the safety of school buses should be used whenever transporting children in buses is shared by the National Transportation Safety Board (NTSB). At a June 8, 1999, public meeting, the NTSB issued the attached abstract of a special investigative report on nonconforming buses. The NTSB issued the report after investigating four crashes in 1998 and 1999 in which 9 people were killed and 36 injured when riding in "nonconforming buses." NTSB defines "nonconforming bus" as a "bus that does not meet the FMVSSs specific to school buses." Most of the victims, including eight of the fatalities, were children.

In the abstract of its report, the NTSB issued several Safety Recommendations, including the following that was directed to child care providers such as the National Association of Child Care Professionals, the National Child Care Association, and Young Mens' and Young Women's Christian Associations:

Inform your members about the circumstances of the accidents discussed in this special investigation report and urge that they use school buses or buses having equivalent occupant protection to school buses to transport children.

I am also enclosing NHTSA's February 1999 "Guideline for the Safe Transportation of Pre-school Age Children in School Buses." This guideline establishes NHTSA's recommendations for how pre-school age children should be transported in school buses.

I hope this information is helpful. If you have any further questions about NHTSA's programs, please feel free to contact Dorothy Nakama of my staff at this address or at (202) 366-2992.

Sincerely,
Frank Seales, Jr.
Chief Counsel
Enclosures
ref:VSA#571.3
d.10/22/99

ID: 2075y

Mr. David W. Raney
Environmental Activities Manager
Saab-Scania of America, Inc.
Saab Drive
P. O. Box 697
Orange, CT 06477

Dear Mr. Raney:

Thank you for your letter requesting our interpretation of 49 CFR Parts 541, Federal Motor Vehicle Theft Prevention Standard, and 543, Exemption from Theft Prevention Standard. I apologize for the delay in this response.

You asked two questions. Your first question concerned the scope of the exemptions granted under Part 543. You noted that the Saab 9000 car line has been determined to be a high theft car line. Accordingly, Part 541 requires that both the original equipment and the replacement major parts for the Saab 9000 be marked with certain information. Your letter states that your company marked both the original equipment and replacement major parts for the Saab 9000 in the 1987 and 1988 model years.

For the 1989 model year, the Saab 9000 was granted an exemption from the parts marking requirements of Part 541, pursuant to the provisions of Part 543. Your company understands that this exemption means that the original equipment parts on the Saab 9000 are no longer required to be marked. However, the replacement parts for the Saab 9000 that are produced in 1989 and thereafter pose a more difficult problem. On the one hand, Saab could consider these parts as replacement parts for the 1989 models, which would mean these parts are exempted from the parts marking requirement. On the other hand, these parts could also be considered as replacement parts for the 1987 and 1988 Saab 9000 line, which would mean the parts have to be marked because no exemption applies for such parts.

The answer to your question is that once a high theft line is granted a Part 543 exemption in whole from the parts marking requirements of Part 541, as the Saab 9000 was, the replacement parts for that line are also exempted from the parts marking requirements even if those parts can be used as replacement parts for the high theft line during model years for which no exemption applies. NHTSA addressed this issue in the preamble to the September 8, 1987 final rule establishing Part 543 (52 FR 33821), as follows:

Section 602(d)(2)(A) of Title VI (of the Motor Vehicle Information and Cost Savings Act) states that the vehicle theft prevention standard can not require 'identification of any part which is not designed as a replacement for a major part required to be identified under such standard.' (Emphasis added.) As long as a manufacturer is producing a car line under an exemption granted in whole, there is no requirement to identify major parts otherwise subject to the theft standard; therefore, NHTSA can not require marking replacement parts. 52 FR 33828.

Applying this reasoning to your company's situation, Saab was free to discontinue marking both the original equipment and replacement major parts for the Saab 9000 as soon as the Part 543 exemption took effect, provided that Saab actually installed the antitheft device described in its petition as original equipment on 1989 Saab 9000 vehicles.

Your second question asked whether the manufacturer of a high theft car lines that has been granted an exemption from the parts marking requirements, pursuant to Part 543, may discontinue the installation of the antitheft device and resume parts marking in some future model year. We addressed this issue in detail in a May 4, 1988 letter to Ms. Deborah Bakker, a copy of which is enclosed for your information. A manufacturer of a high theft line that has received an exemption under Part 543 is required to either install the antitheft device as standard equipment on every vehicle in that line produced during a model year or to mark all original equipment and replacement major parts for that line produced during the model year. As long as Saab marked all of the original equipment and replacement parts produced in a model year for the Saab 9000, your company is free to stop installing the antitheft device on those cars.

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

Sincerely,

Stephen P. Wood Acting Chief Counsel

Enclosure /ref: Parts 541, 543 d:l0/l2/89

ID: 20778.drn

Jacqueline Glassman, Esq.
Senior Staff Counsel
DaimlerChrysler Corporation
1000 Chrysler Drive   CIMS 485-14-18
Auburn Hills, MI 48326-2766






Dear Ms. Glassman:

This responds to your request for an interpretation of S4.5 of Federal Motor Vehicle Safety Standard No. 114, Theft Protection. I apologize for the delay in responding. You ask whether a warning referenced in S4.5 is required when the driver's door is opened and the metal key is in the "accessory" position of a vehicle's ignition switch when that position is not between the "on" and "lock" positions. Our answer is yes.

The purpose of Standard No. 114 is to reduce the incidence of crashes resulting from unauthorized operation of a motor vehicle, and from the rollaway of parked vehicles with automatic transmissions as a result of children moving the shift mechanism out of the "park" position. To further these purposes, S4.5 of the standard provides that: "A warning to the driver shall be activated whenever the key required by S4.2 has been left in the locking system and the driver's door is opened." ⁽¹⁾ The purpose of the provision is to prevent, as far as possible, drivers from inadvertently leaving the key in the ignition lock when the car is unoccupied. See, e.g., 34 FR 9342 (June 13, 1969).

There are three exceptions to the general requirement of S4.5 that a warning must be activated whenever the key has been left in the locking system and the driver's door is opened. The exceptions set forth in S4.5(a) through (c), which were promulgated after the general requirement was adopted, provide that the warning to the driver need not operate:

(a) After the key has been manually withdrawn to a position from which it may not be turned;

(b) When the key-locking system is in the "on" or "start" position; or

(c) After the key has been inserted in the locking system and before it has been turned.

Your letter refers to vehicles manufactured by DaimlerChrysler in which the warning referenced in S4.5 does not operate when the key is in the "accessory" position. A drawing you provided of the ignition switch system in these vehicles shows the ignition switch aperture in the center, surrounded by the positions, in clockwise order from the left, "accessory" (at approximately the 7:00 position, if you imagine the round aperture as the face of a clock), "lock" (at 9:00), "off" (at 11:00), "on" (at 1:00), and "start" (at 2:00).

Your letter asserts that "the key is removed from the key locking system when it is turned to the 'accessory' position of the ignition switch." You suggest that this is because the key, in the "accessory" position, "does not permit normal activation of the vehicle's engine or motor, nor does it permit steering or forward self-mobility of the vehicle" (you refer to the words of S4.2 of the standard, which states that removal of the key must have such an effect on the vehicle). Yet you acknowledge that the key remains in the ignition switch.

We do not agree that the key has been withdrawn from the key-locking system when it is in the "accessory" position. The fact that the key would have to be turned to activate the engine or to allow steering or forward self-mobility does not mean that the key is not in the key-locking system. The key would also have to be turned from the "lock" position, which you acknowledge is part of the key-locking system. Similarly, the fact that the "accessory" position is beyond the "lock" position is irrelevant, since the standard does not refer to the relative locations of the various positions in a key-locking system. The risks that Standard No. 114 is designed to protect against (theft and rollaway) are no less real when the key is in the "accessory" position than when it is left in other positions in the vehicle's ignition switch.

In asserting that the key-locking system includes only positions between "on" and "lock," you quote the following sentences from the preamble to the amendment to Standard No. 114 that added the exceptions to S4.5 (34 FR 9342, 9343 (June 13, 1969)):

It was the purpose of this provision to require activation of the warning device whenever the key is left in the lock in a position from which the lock can be turned. Once the driver has withdrawn the key beyond the position, he is presumably aware of the location of the key, and no warning need be given to him. (Your emphasis.)

However, contrary to your assertion, this language demonstrates that the standard applies when a key is left in the "accessory" position, since it is not disputed that "the lock can be turned" from that position. Indeed, the Federal Register notice from which you quote specifically refers to a situation when ". . . the key is so far removed as to be dangling from the locking mechanism" (34 FR at 9343), a position from which it could not be turned at all. Further, to the extent that your letter could be construed as suggesting that the exemption in S4.5(a) applies to this situation, we interpret the phrase "has been manually withdrawn" in S4.5(a) as referring to the action of removing, or attempting to remove, a key from the switch (resulting in, for example, a dangling key), not the turning of the key to a position that is within the switch, such as the "accessory" position. Interpreting the wording this way is consistent with the purposes of the amendment and with the standard itself.

NHTSA's denial of a 1969 petition for rulemaking from General Motors (GM) to amend the S4.5(a) exemption is illustrative. GM wanted us to allow the warning to be inoperative "after the key has been manually withdrawn from the normal operating position." It sought the amendment because on some then-manufactured GM vehicles, a driver could manipulate the ignition key into a position at which the warning buzzer would be deactivated, but the key would be able to turn the lock.

In denying GM's petition, NHTSA stated that the suggested amendment was contrary to the purpose of the requirement, which was:

. . . to make it virtually impossible for a driver inadvertently to leave his key in the ignition lock when he exits and thereby to reduce car thefts along with the high potential for accidental injury and death that stolen cars have. If it were possible for a driver to manipulate the key so as to render the warning inoperative while, at the same time, to continue to operate the vehicle with the key in the lock, the salutary purpose of the warning requirement would be defeated.

34 FR 19547 (December 11, 1969).

You present an analogous situation. A key in the "accessory" position is a "key in the lock." Allowing the warning to be inoperative in such a position, from which the key may be turned, would be contrary to the purpose of the warning requirement.

We also note that the legal position that you advocate in your letter is belied by the long-standing understanding by Chrysler Corporation (a predecessor of DaimlerChrysler) of the requirements of Standard No. 114. For example, Compliance Procedure CP-383, issued on February 18, 1988, "describes the method to be used in verifying compliance of the ignition and steering column key in-lock warning with the vehicle theft protection requirements of Federal Motor Vehicle Safety Standard (MVSS) 114 . . . ." That document states, "The Warning [to the driver] must operate when the ignition key is in the accessory, lock or off positions." (boldface type and underlining in original).

Similarly, DaimlerChrysler's Manufacturing Assurance Standards Safety/Emissions (MASSE) 11-3002, entitled "Seat Belt and Key-In Lock Warning Systems - All Vehicles," specifies in Section 1.1 (which explicitly refers to Standard No. 114), "A warning to the driver will be activated whenever the ignition key has been left in the locking system, the ignition is in the "OFF", "LOCK", or "ACC" position and the driver's door is opened." This is reiterated in the "Manufacturing Assurance Requirements," of MASSE 11-3002, which state (in Section 2.2) that the applicable "Vehicle Conditions" include placing the "Ignition key in ignition and in 'OFF' or 'Accessory' position." Moreover, the "Verification Sequence" for this requirement described in Section 2.3 specifies the following procedure: "Open the driver's door. THE BUZZER OR CHIME SHOULD ACTIVATE AN AUDIBLE WARNING." (emphasis in original). Thus, Chrysler's Compliance Procedure and MASSE unequivocally demonstrate that the company has long understood that Standard No. 114 applies when the key is left in the "accessory" position.

Ultimately, even apart from DaimlerChrysler's past understanding and its internal documents, the position advocated in your letter is inconsistent with common sense and experience. One primary purpose of the "accessory" position in automobiles is to allow drivers who have reached their destination to listen to the radio or perform a task requiring use of the vehicle's electrical system without running the engine. It is certainly foreseeable that a forgetful driver in that situation might inadvertently leave the key in the vehicle upon exiting if he or she were not alerted by a warning. It was to prevent such an occurrence that Standard No. 114 was adopted.

If you need further assistance, please contact Dorothy Nakama of my staff at this address or at (202) 366-2992.





Sincerely,

Frank Seales, Jr.
Chief Counsel





ref:114
d.9/25/00

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1. S4.2 requires each vehicle to have a key-locking system that, whenever the key is removed, prevents: (a) the normal activation of the vehicle's engine or motor; and (b) either steering or forward self-mobility of the vehicle or both.

ID: 20789sittightlockingclip

Mr. Cecil Creech
P.O. Box 507
Shadyside, MD 20764

Dear Mr. Creech:

This responds to your October 13, 1999, letter concerning a product that you are seeking to develop, called "the SitTight." You ask whether the product is subject to any Federal standards.

According to your letter, the SitTight is a device designed for use with vehicle belt systems, to tighten the vehicle seat belt used to attach a child restraint to the vehicle seat. From your sketches, the SitTight appears to consist of a spooling and ratchet mechanism that takes up slack in the belt system when used on a vehicle seat alongside a child restraint. It appears to be of a size that fits in the palm of a hand. The SitTight would be positioned next to the base of the child restraint, and both straps of a lap and shoulder belt would be fed through the slots in the SitTight. The consumer would move a handle on the SitTight up and down to tighten the seat belt to the correct tension. To remove the SitTight, the seat belt would be released.

By way of background information, the National Highway Traffic Safety Administration (NHTSA) has the authority to issue Federal motor vehicle safety standards for new motor vehicles and new items of motor vehicle equipment. NHTSA does not, however, approve or certify any vehicles or items of equipment. Instead, Congress has established a "self-certification" process under which each manufacturer is responsible for certifying that its products meet all applicable safety standards. The following represents our opinion based on the information set forth in your letter.

There currently are no Federal motor vehicle safety standards that directly apply to the SitTight. Our standard for "child restraint systems," Standard No. 213, applies to "any device except Type I or Type II seat belts, designed for use in a motor vehicle or aircraft to restrain, seat, or position children who weigh 50 pounds or less." The standard does not apply to accessory items, such as a device that is used with a child restraint to remove slack in the vehicle belt system.

While no standard applies to the SitTight, your product is considered to be an item of motor vehicle equipment. As a manufacturer of motor vehicle equipment, you are subject to the requirements of 49 U.S.C. 30118-30121 concerning the recall and remedy of products with safety-related defects. I have enclosed an information sheet that briefly describes those and other manufacturer responsibilities. In the event you or NHTSA determines that your product contains a safety-related defect, you would be responsible for notifying purchasers of the defective equipment and remedying the problem free of charge.

For your information, passenger vehicles manufactured since September 1, 1995, are required to have a locking mechanism for the lap belt or lap belt portion of lap and shoulder belts, to enable them "to be capable of being used to tightly secure child safety seats without the necessity of the users attaching any device to the seat belt webbing, retractor, or any other part of the vehicle...." Further, we amended Standard No. 213 earlier this year to require child restraint systems manufactured on or after September 1, 2002 to be equipped with connectors that attach to an independent child restraint anchorage system in vehicles. The effect of this rule will enable child restraints to be attached to the vehicle seat without the use of seat belts. We believe that these requirements will address some of the same securement problems that you hope to address with the SitTight.

I hope this information is helpful. If you have any other questions, please do not hesitate to contact Deirdre Fujita of my staff at (202) 366-2992.

Sincerely,
Frank Seales, Jr.
Chief Counsel
Enclosure
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d.11/24/99

ID: 20811.ztv

Mr. Robert N. Clemens
President
Automobile Consumer Service Corp.
2007 Poole Drive
Huntsville, AL 35810

Dear Mr. Clemens:

This is in reply to your letter of November 2, 1999, to Taylor Vinson of this Office, enclosing copies of "RI policy and Certificate of Insurance with an endorsement [by] National Warranty Insurance Group." You have asked for our approval, so that you may proceed to order the printing of the policies.

By way of background, 49 U.S.C. 30141(c)(1)(C) and 30147(b), as implemented by 49 CFR 592.5(a)(8), (a)(9), and (e) require this agency to ensure that a registered importer (RI) provide and maintain evidence of sufficient financial responsibility to meet certain obligations, principally to notify purchasers and remedy safety-related defects or noncompliances occurring in motor vehicles for which the RI has import certification responsibility. The regulatory method we chose was to require an RI to obtain a "mandatory service insurance policy issued by an independent insurance company," in an amount up to $2,000 for each motor vehicle imported or conformed by the RI.

When the regulation went into effect early in 1990, the initial RIs were unable to find any company registered as an insurer which was willing to issue such a service insurance policy. However, Automobile Consumer Service Corporation developed a "warranty" to serve the same purposes as an insurance policy, and we acceded to this arrangement. We assisted ACSC in drafting an acceptable document, even though we had no information on its financial reserves and its financial ability to honor the "warranty." However, we are not aware of any instance in which one of these warranties was presented to ACSC, let alone presented and not honored.

Nevertheless, the question of the adequacy of reserves to honor policies has continued to concern us. Your letter of November 2 informed us of the willingness of the National Warranty Insurance Risk Retention Group ("National Warranty") to insure ACSC on its issuance of its warranties. In turn, on November 23, 1999, Signet Star Reinsurance Company ("Signet Star") agreed to reinsure National Warranty under its agreement with ACSC, a copy of which you furnished us on November 29.

After reviewing these documents, we have concluded that an RI who obtains an ACSC warranty that is covered by ACSC's agreement with National Warranty, and by National Warranty's agreement with Signet Star, provides a satisfactory assurance of financial ability to fulfill the RI's statutory obligations. You may proceed to order your policies. However, our consent to this arrangement does not preclude us from considering other ways in which the statutory objectives may be effected. Any changes, of course, would be the subject of public notices to afford interested persons an opportunity to comment.

Sincerely,
Frank Seales, Jr.
Chief Counsel
ref:592
d.2/3/2000

ID: 20822.ztv

Mr. Timothy J. Flanagan
Manager, Gas Methods & Training
PECO Energy Company
300 Front Street
West Conshohocken, PA 19428-2723

Dear Mr. Flanagan:

This is in reply to your letter of October 6, 1999, requesting permission "to install additional lighting for visibility and safety purposes" on PECO Energy Company emergency service vehicles.

You report that your vehicles currently are equipped with an "amber strobe light on the roof and the regular hazard lights." You would like to add "additional strobe lights in the rear and front" of your vehicles to be used while the vehicles are stationary, and state that this additional lighting "will not interfere with any other warning or safety devices on the vehicle such as headlights or turn signals."

Strobe lamps are not permitted as original equipment on motor vehicles. This is because all lamps with which a vehicle is supplied must be steady burning, except for turn signals and hazard warning signals, and headlamps which may be automatically flashed for signaling purposes (see S5.5.10 of Federal Motor Vehicle Safety Standard (FMVSS) No. 108, Lamps, Reflective Devices, and Associated Equipment). We regard a strobe lamp as one that flashes, and hence prohibited as original equipment.

As for vehicles in the field, such as yours, Federal law (49 U.S.C. 30122) prohibits manufacturers, dealers, distributors, and motor vehicle repair businesses from making inoperative safety equipment installed in accordance with FMVSS No. 108 (and any other applicable FMVSS as well). Installation of a strobe lamp would create a noncompliance with FMVSS No. 108 which we equate with "making inoperative" within the meaning of the statute. However, the list of persons prohibited from making safety modifications affecting compliance do not include vehicle owners. Thus, if PECO Energy has its own vehicle repair facilities, your company may install the strobe lamps without violating Federal law. Use of these lamps is subject to the laws of Pennsylvania.

If you have any questions, you may call Taylor Vinson of this Office (202-366-5263).

Sincerely,
Frank Seales, Jr.
Chief Counsel
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d:1/7/00