ID: 24229mass

John K. Stipancich
Vice President
Evenflo Company, Inc.
707 Crossroads Court
Vandalia, OH 45377

Dear Mr. Stipancich:

This responds to your letter to the National Highway Traffic Safety Administration (NHTSA) asking about S5.4.3.2 of Federal Motor Vehicle Safety Standard No. 213, "Child Restraint Systems" (49 CFR 571.213). I regret the delay in responding.

You ask whether S5.4.3.2 of Standard No. 213 applies to belt-positioning seats. You believe it does, but have observed that some of your competitors have produced belt-positioning seats that do not appear to comply with that section.

Section S5.4.3.2 states, in pertinent part:

S5.4.3.2 Direct restraint. Except for a child restraint system whose mass is less than 4.4 kg, . . . each Type I and lap portion of a Type II vehicle belt that is used to attach the system to the vehicle shall, when [dynamically] tested in accordance with S6.1, impose no loads on the child that result from the mass of the system . . .

The agency has decided that it will not enforce the requirements of S5.4.3.2 against belt-positioning seats that have a mass greater than 4.4 kg until further notice. While the agency believes that the mass of the seats should be limited so as not to subject the child occupant to excessive loading in a crash, the agency has concerns about the enforceability of the provision against manufacturers of belt-positioning seats that have a mass greater than 4.4 kg. Accordingly, the agency will not apply the provision to belt-positioning seats until further notice.

Sincerely,

Jacqueline Glassman
Chief Counsel

ref:213
d.4/11/03

ID: 24237.rbm

Robert Brown, President
Sensible Solutions, LLC
7301 Brookside Drive
Frederick, MD 21702

Dear Mr. Brown:

This responds to your letter asking about the National Highway Traffic Safety Administration's (NHTSAs) limited exemption concerning vehicles modified for persons with disabilities (49 CFR Part 595, subpart C) and its policy regarding the installation of air bag on-off switches (49 CFR Part 595, subpart B).

By way of background, NHTSA administers a statute requiring that motor vehicles manufactured for sale in the United States or imported into the United States be manufactured so as to reduce the likelihood of motor vehicle crashes and of deaths and injuries when crashes do occur. We refer to that statute as the Vehicle Safety Act. It is codified at 49 U.S.C. 30101, et seq.

One of the agencys functions under the Vehicle Safety Act is to issue and enforce Federal motor vehicle safety standards (FMVSSs). These standards specify safety performance requirements for motor vehicles and/or items of motor vehicle equipment. Manufacturers of motor vehicles must certify compliance with all applicable safety standards and permanently apply a label to each vehicle stating that the vehicle complies with all applicable FMVSSs.

The Vehicle Safety Act prohibits manufacturers, distributors, dealers, or motor vehicle repair businesses from knowingly making inoperative any part of a device or element of design installed on or in a motor vehicle or motor vehicle equipment that is in compliance with any applicable FMVSS. NHTSA may assess a civil penalty to enforce this provision. NHTSA may also, through regulation, exempt a person or business from the prohibition if it decides that an exemption is consistent with motor vehicle safety and the Vehicle Safety Act.

The agency has issued two regulations exempting persons or businesses from the make inoperative prohibition. First, on November 21, 1997, NHTSA published a final rule allowing motor vehicle repair businesses to install retrofit air bag on-off switches in the vehicles of individuals who had written authorization from NHTSA to have such a switch installed. The authorization process requires individuals to submit an authorization request in which they have certified that they fall within one of the prescribed risk categories. Based upon a review of the authorization request, NHTSA can send a letter authorizing the installation of an air bag on-off switch. Based on that NHTSA letter, a motor vehicle repair business can install an air bag on-off switch as long as the switch meets the conditions specified in 49 CFR 595, subpart B.

Second, on February 27, 2001, NHTSA published a final rule setting forth a limited exemption from the make inoperative prohibition for businesses or individuals who modify vehicles for persons with disabilities (66 Federal Register 12638; Docket No. NHTSA-01-8667). This exemption is codified in 49 CFR Part 595, subpart C. Only portions of some Federal motor vehicle safety standards are covered by the exemption. Specifically, the exemption only applies to modifications that have the effect of rendering mandatory safety equipment or features inoperative and that cannot otherwise be done in a manner that would not render the mandatory equipment or features inoperative. Additionally, the exemption does not apply to those modifications where the risk to safety is so great that an exemption is not justified. Further, the exemption does not apply to any modification that does not have the effect of making safety equipment or an element of vehicle design inoperative. In such instances no exemption is needed. An example of such a modification would be the installation of a mechanical hand control with little or no cutting of the knee bolster and no modification of the steering wheel other than the attachment of a rim-mounted steering control device. Likewise, the attachment of a pedal extender or seat belt extender should not have the effect of making any required safety equipment or vehicle design element inoperative.

One of the Federal safety standards to which the subpart C exemption applies is FMVSS No. 208, Occupant crash protection. Briefly stated, an air bag can be disconnected or removed if 1) a retrofit air bag on-off switch, alone, cannot accommodate the individual's disability and 2) the modified seating position is provided with Type 2 or Type 2A safety belts that meet the requirements of FMVSS No. 209, Seat belt assemblies, and FMVSS No. 210, Seat belt assembly anchorages.

You have asked whether individuals whose disabilities can be accommodated through the installation of retrofit air bag on-off switches in conjunction with pedal extenders, seatbelt extenders or hand controls are released from the requirement that they first receive NHTSA authorization to have an air bag on-off switch installed. The make inoperative exemption for FMVSS No. 208 can only be used to install an air bag on-off switch or disconnect an air bag if the switch installation or air bag deactivation is not the end goal of the modification affecting the air bag.

For example, when an individual's disability requires the use of a reduced diameter steering wheel, the original wheel must be removed. While the driver-side air bag is removed as part of the modification, its removal is not the intended goal of the modification. Another example is the installation of a six-way power seat base in a vehicle that has an air bag deployment sensor located under the seat. In the course of this modification, the sensor must be moved. If the modifier believes the sensor cannot be moved without making the air bag system inoperative, the portion of the Part 595, subpart C exemption addressing FMVSS No. 208 is available to the modifier, and the air bag can be disconnected.

An example of when the exemption could not be used would be the installation of a left-foot accelerator in which no other vehicle modifications were required. This installation would not, in and of itself, require the removal of the air bag or the installation of an air bag on-off switch. Accordingly, no exemption related to FMVSS No. 208 would be provided under Part 595, subpart C.

We stated in the preamble to the February 2001 final rule that if an air bag on-off switch will partially address an individual's disability but more extensive modifications are also required to accommodate the disability, there is no additional requirement for prior authorization for an on-off switch. This is because the modifier is already relying on the exemption in 49 CFR Part 595, subpart C to make the needed modifications. However, the additional modifications must be those affecting the vehicles compliance with the safety standards specified in Part 595, subpart C.^[1]

Modifications not covered by the limited exemption of 49 CFR Part 595, subpart C, continue to require prior agency authorization for the installation of an air bag on-off switch. Accordingly, with the exception of work performed for an individual with achondroplasia or atlantoaxial instability, if a vehicle modifier limits the modification on a particular vehicle to the installation of pedal extenders, seat belt extenders, or other minor modifications, with no other changes to the vehicle, it cannot rely on the exemption given in Part 595, subpart C to install an air bag on-off switch.

I hope this information is helpful. Should you require any additional information or assistance, please contact Rebecca MacPherson of my staff at (202) 366-2992 or at the address given above.

Sincerely,
Jacqueline Glassman
Chief Counsel
ref:595
d.7/2/02

^[1] Exceptions are for when the individual disability was achondroplasia (drivers only) or atlantoaxial instability (passengers only). No prior authorization was required even when the only modification needed to address the disability was the installation of an air bag on-off switch. The reason these two conditions were exempted from the normal process is because these are the only two conditions that have been identified as always necessitating deactivation of the air bag. This determination was made by a panel of physicians at a national medical conference on evaluating the air bag risk. The report from this conference may be viewed at the NHTSA web site at http://www.nhtsa.dot.gov.

ID: 24256ogm

Doris Schaller-Schnedl, Homologation Engineer
Magna Steyr Engineering
Steyr Daimler Puch Fahrzeugtechnik AG & Co KG
Liebenauer Hauptstrasse 317
A-8041
Graz, Austria




Dear Ms. Schaller-Schnedl:

This responds to your electronic mail message in which you indicate that your company would like to install Type 2 seat belts equipped with load limiters for use in the rear outboard seating positions of a passenger vehicle. Your message notes that you would like to employ load limiters as you believe that the devices would help reduce the possibility of injury in a crash. You indicate, however, that if you equip the seat belts in question with load limiters, the belts will not comply with the minimum performance requirements for belt elongation found in Federal Motor Vehicle Safety Standard No. 209, Seat Belt Assemblies. Your message also indicates your belief that S4.5(b) of Standard No. 209 provides that belts equipped with load limiters need not meet the elongation requirements if these belts are installed in any designated seating position that is subject to the requirements of S5.1 of Federal Motor Vehicle Safety Standard No. 208, Occupant Crash Protection. As your message observes that S5.1 applies only to front outboard designated seating positions, you ask if load limiters that do not meet the elongation requirements of Standard No. 209 may only be installed in front outboard designated seating positions. Finally, if it is the agency's position that load limiter equipped belts may only be installed in the front outboard seating positions, you ask if belts equipped with these devices may be installed in rear outboard seating positions if the belts meet the performance requirements of S5.1 of Standard No. 208 when tested with a dummy placed in the rear outboard seating position.

For the reasons explained below, load limiters that cause a seat belt to not meet the elongation requirements of Standard No. 209 may not be installed in seating positions other than the front outboard seating positions.

Standard No. 209 establishes minimum performance requirements for seat belts and contains a number of provisions relating to elongation in seat belts and seat belt assemblies. The elongation of belt webbing is governed by S4.2(c), while the elongation performance of Type 1 and Type 2 belt assemblies is controlled by S4.4(a)(2), S4.4(b)(4) and S4.4(b)(5).

Load limiters are intended to manage the forces imposed on an occupant when the occupant moves forward against the belt during a crash. To achieve this purpose, load limiters allow the belt to yield, in a controlled fashion, to the forces generated by restraining an occupant. In order to allow the use of load limiters while ensuring that belts equipped with the devices continue to provide a minimum level of safety, S4.5 of Standard No. 209 provides as follows:

S4.5 Load-limiter.


(a) A Type 1 or Type 2 seat belt assembly that includes a load-limiter is not required to comply with the elongation requirements of S4.2(c), S4.4(a)(2), S4.4(b)(4) or S4.4(b)(5).

(b) A seat belt assembly that includes a load limiter and that does not comply with the elongation requirements of this standard may be installed in motor vehicles at any designated seating position that is subject to the requirements of S5.1 of Standard No. 208 ( 571.208).

As you observe in your message, S4.5 provides that a seat belt equipped with a load limiter is not subject to the elongation requirements of Standard No. 209 if that belt is installed at a designated seating position that is subject to the requirements of S5.1 of Standard No. 208. S5.1 establishes the minimum performance standards for occupant protection in a frontal crash and includes, in S5.1.1, the requirements for performance in a 48 km/h (30 mph) frontal crash test employing a 50th percentile male dummy secured by a Type 2 belt in a front outboard seating position. Because the requirements of S5.1.1 provide assurance that seat belts will provide a minimum level of safety in a frontal crash, S4.5 of Standard No. 209 excludes belts with load limiters from meeting the elongation requirements of Standard No. 209 for any seating position that is tested under S5.1. As S5.1 applies only to front outboard seating positions, belts with load limiters installed at rear outboard seating positions must meet the elongation requirements of Standard No. 209.

Your message also asks if a manufacturer wishing to install belts with load limiters in a rear outboard seating position may comply with S4.5 of Standard No. 209 by verifying the performance of the belts through testing the belts by performing testing as set forth in S5.1 on the rear outboard seats. The answer is that belts installed at rear seating positions are subject to the elongation requirements and must meet them.

If you have any questions, please contact Otto Matheke of my staff at (202) 366-5263.

Sincerely,

Jacqueline Glassman
Chief Counsel


ref:209
d.9/19/01

ID: 24257ownermodifying

Paul Wagner, President
Bornemann Products Incorporated
402 Industrial Drive
P.O. Box 427
Bremen, IN 46506

Dear Mr. Wagner:

This responds to your March 27, 2002, and April 29, 2002, letters to the National Highway Traffic Safety Administration (NHTSA) asking about Federal Motor Vehicle Safety Standard No. 225, Child Restraint Anchorage Systems (49 CFR 571.225). I regret the delay in responding. Before addressing your specific questions, we would like to note that several of your questions have been raised in petitions for reconsideration of the final rule establishing Standard No. 225 (March 5, 1999) (see Docket No. 98-3390, Notice 2). We indicate where the answers to those questions will be addressed by NHTSA in responding to the petitions for reconsideration. We anticipate that the response will be issued shortly.

Question 1.

Standard No. 225 requires vehicles to be equipped with a certain number of child restraint anchorage systems and tether anchorages, depending on the number of designated seating positions in the vehicle (S4.4 of the standard). The standard also specifies the location of the anchorage systems. ^[1]

You ask about a vehicle owner modifying his or her own vehicle (specifically, a vehicle that has three rows of seating), after the vehicles purchase, to suit his or her needs or preferences. You ask:

[I]f a vehicle purchased by a consumer complies with the Standard at the time of purchase (as in Diagram A) [two child restraint anchorage systems in the second row, and a tether anchorage in the third row], and the consumer later makes revisions as illustrated in Diagrams 1, 2, 3 and 4 of Attachment A, would the vehicle be deemed as non-compliant due to these modifications? Please consider that any revisions indicated as made by the consumer did not create any other non-compliant issue with any other FMVSS codes.

Diagrams 1, 2 and 4 show the second and/or the third rows removed. Diagram 3 shows the second row removed from the vehicle and the third row moved to where the second row was.

There are two parts to our answer. Normally, consumer modifications do not affect the compliance of a vehicle. The FMVSSs apply to new motor vehicles, i.e., until the vehicles first purchase in good faith other than for resale (see 30112(b)(1) of 49 U.S.C. Chapter 301, the Vehicle Safety Act). The Vehicle Safety Act prohibits persons from manufacturing or selling any new motor vehicle that does not comply with all applicable FMVSSs until the first purchase of the vehicle by a consumer. After the vehicle is purchased, the vehicle manufacturer is not responsible for modifications that vehicle owners may make to the vehicle.^[2]

However, an issue raised by your letter concerns whether the vehicle is designed so consumers can easily change seating arrangements by simple operations such as releasing a latch or removing easily accessible mounting hardware. Where a manufacturer designs a vehicle in this manner and alerts consumers of the flexibility of the seating arrangements, e.g., through advertising or an entry in the owners manual, should the manufacturer be responsible for designing the vehicle so that these simple operations cannot be used to create configurations that do not comply with S4.4 of Standard No. 225? This issue was raised in petitions for reconsideration of the final rule. We will respond to it in the context of the rulemaking proceeding.^[3]

Question 2.

S9.1.1(c) of Standard No. 225 specifies that the lower anchorages must be not less than 25 mm, but not more than 40 mm in length. You ask whether the not less than 25 mm but not more than 40 mm language refers to the inside opening of the anchorages (bars), or to the overall length of the bar including the 6 mm steel material. The answer is the inside opening of the bar, and not the overall length of it. We plan to amend S9.1.1(c) to clarify the meaning of the text, in accordance with this interpretation.

Question 3.

S9.1.1(f) of Standard No. 225 requires that the lower bars must be an integral and permanent part of the vehicle or vehicle seat. You ask whether the bars can be bolted or otherwise attached without the use of a tool. This issue has been raised in petitions for reconsideration and will be answered by us in the upcoming response.

I hope that this information is helpful. If you have any other questions, please contact Deirdre Fujita of my staff at (202) 366-2992.

Sincerely,
Jacqueline Glassman
Chief Counsel
ref:225
d.6/28/02

^[1] Among other issues, petitions for reconsideration have asked that the number of tether anchorages required for certain vehicles (multipurpose passenger vehicles with seating capacity of 5) be reduced from three to two. Petitions have also asked that NHTSA reconsider the requirement that a tether anchorage must be placed in a center rear seating position, if such a position exists. See Docket No. 98-3390, Notice 2.

^[2] If a motor vehicle were modified by a manufacturer, distributor, dealer, or motor vehicle repair business, 30122 of the Vehicle Safety Act limits the modifications that may be made. That section prohibits those entities from knowingly making inoperative any part of a device or element of design installed on in a motor vehicle or motor vehicle equipment in compliance with an applicable motor vehicle safety standard. Section 30122 does not apply to individual owners modifying their own vehicle.

^[3] The Alliance of Automobile Manufacturers asked for clarification that providing a user-ready tether anchorage at a seat that can be used at either an outboard or a non-outboard (center) seating position meets the subject requirement. Petitioner stated that some vehicles are now equipped with vehicle seats that can be moved from an outboard position to a non-outboard position. Petitioner wanted to know how the agency would position such a movable seat in determining compliance with the requirement that a tether anchorage must be provided in a center seating position.

ID: 24258.drn

Mr. Mark Perez
UniServ Director/Education Support Personnel Specialist
Georgia Association of Educators
100 Crescent Centre Parkway, Suite 500
Tucker, GA 30084-7049

Dear Mr. Perez:

This responds to your question about how Federal law would affect legislation being considered in Georgia that would require upgrades of older public school buses to meet current Federal school bus standards. Our answer is provided below.

In your letter, you state that proposed legislation in Georgia:

would call for all current buses to be modified to include such items as: cross-over mirrors on each bus which shall be adjusted such that the driver may view the front and both sides of the bus from the drivers seat; functioning parking brakes on each bus; and an extension arm or gate on the front of each bus which may be activated by the driver to prevent passengers from crossing immediately in front of the bus.

In a telephone conversation with Dorothy Nakama of my staff, you stated that the proposed legislation would apply only to public school buses that are already owned by the schools or school districts (i.e., used school buses). You further stated that the legislation would apply only to vehicles that, when first sold, were certified by the manufacturer as meeting Federal school bus safety standards. You also asked that we discuss only the proposed legislations requirements for convex-cross view mirrors, parking brakes and crossing control arms.

Mirrors and Parking Brakes

The Federal motor vehicle safety standards (FMVSSs) require that all presently manufactured school buses have convex-cross view mirrors (Standard No. 111, Rearview mirrors) and parking brakes (Standards No. 105, Hydraulic and electric brake systems and No. 121, Air brake systems). Since the school buses that are the subject of the legislation were manufactured before the effective dates of the school bus mirror and parking brake requirements, the proposed legislation would require retrofitting of older buses to meet current requirements.

One issue raised by your inquiry is whether the State legislation would be preempted by Federal law. Our answer is no. The National Highway Traffic Safety Administration (NHTSAs) preemption authority, specified at 49 U.S.C. 30103(b), states in part:

(1) When a motor vehicle safety standard is in effect under this chapter [49 U.S.C. Sections 30101 et seq.], a State or a political subdivision of a State may prescribe or continue in effect a standard applicable to the same aspect of performance of a motor vehicle or motor vehicle equipment only if the standard is identical to the standard prescribed under this chapter. However, the United States Government, a State, or a political subdivision of a State may prescribe a standard for a motor vehicle or motor vehicle equipment obtained for its own use that imposes a higher performance requirement than that required by the otherwise applicable standard under this chapter.

We assume that you are asking about a State provision that would require that only school buses that have the specified school bus mirrors and parking brakes can be operated in the state. Generally, a State is not required to impose operational requirements that are "identical" to the FMVSSs. Nonetheless, there are limits on State operational requirements, in that general principles of preemption law apply. These principles generally preclude States from adopting operational requirements that are more stringent than the requirements applicable to the vehicles under the FMVSSs, because more stringent State requirements would have the effect of precluding the use of a Federally compliant vehicle in that State. However, these preemption principles do not apply to vehicles, such as school buses, procured by a State or local governmental jurisdiction for its own use. Since the legislation you describe would apply only to public school buses, 30103(b) would not preempt the legislation you describe.

Another issue raised by your inquiry is whether NHTSA has any restrictions on the type of modifications that can be made to used vehicles. Nothing in NHTSAs laws would prohibit an owner (i.e., public or private school) from upgrading its used school buses to meet the most current Federal motor vehicle safety standards. The provision in NHTSAs statute addressing modifications of new and used vehicles is at 49 U.S.C. Section 30122(b), which states:

a manufacturer, distributor, dealer, or motor vehicle repair business may not knowingly make inoperative any part of a device or element of design installed on or in a motor vehicle or motor vehicle equipment in compliance with an applicable motor vehicle safety standard prescribed under this chapter [49 U.S.C. Section 30101 et seq.] unless the manufacturer, distributor, dealer, or repair business reasonably believes the vehicle or equipment will not be used (except for testing or a similar purpose during maintenance or repair) when the device or element is inoperative.

Section 30122(b) does not apply to an owner modifying its own vehicles. It does not apply to private schools, public schools or public school districts that make changes to their own used school buses in their own bus garages or repair and maintenance facilities. It does apply to other entities, e.g., motor vehicle repair businesses that, in making modifications for a school district, may do so in a way that takes a school bus out of compliance with a FMVSS requirement. For example, FMVSS No. 121 specifies requirements for the time to apply and release the service brakes via the drivers treadle control. If the modifications to achieve functioning parking brakes resulted in a longer time to apply or release the service brakes that exceeded the FMVSS No. 121 requirement, the motor vehicle repair business would be in violation of the aforementioned section.

Crossing Control Arms

No FMVSS specifies crossing control arms on a school bus. NHTSA had considered requiring crossing control arms on school buses to reduce the risk of school buses striking student pedestrians, but decided against doing so:

After reviewing these comments [public comments on an advance rulemaking notice], the agency has determined not to propose requiring these devices on school buses. The agency notes that a crossing control arm does not provide school bus drivers with a positive means for detecting the presence of a pedestrian. Instead, a crossing control arm merely offers a backup device to help keep children in areas more easily observable by the driver. The agency believes that improving mirror systems offers a larger potential benefit to improving school bus pedestrian safety. Nevertheless, States which favor this device should continue to install them on school buses.

See 56 FR 20171, at 20178; May 2, 1991, copy enclosed. Thus, a State requirement for crossing control arms on public school buses would not be preempted.

State Liability Issues

Further, you expressed concern about "potential liability" that could be associated with this proposed legislation. Since the proposed legislation would amend Georgia law, any liability issues would be determined by Georgia law. I would suggest that your organization consult with an attorney knowledgeable about this aspect of Georgia law for advice on potential liability issues.

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

Sincerely,
Jacqueline Glassman
Chief Counsel
Enclosure

ref:VSA#571.3

d.8/2/02

ID: 24259.rbm

Mr. Ron Thompson
Fedex Express
2007 Corporate Avenue, 4th Floor
Memphis, TN 38132-5612

Dear Mr. Thompson:

This responds to your recent correspondence asking if your company, Fedex, may have the door locks on its airport vehicles disabled. In a subsequent conversation with Rebecca MacPherson, a Senior Counsel on my staff, you indicated that the vehicles are originally ordered as an incomplete chassis cab and are subject to final manufacturing customized to Fedex specifications. It would be part of this final manufacturing process to disable the existing door locks. You also reiterated that the vehicles, as manufactured, will not be operated anywhere other than airport property, and will not be licensed for street or highway use.

By way of background, the National Highway Traffic Safety Administration (NHTSA) administers a statute requiring that motor vehicles manufactured for sale in the United States or imported into the United States be manufactured so as to reduce the likelihood of motor vehicle crashes and of deaths and injuries when crashes do occur. We refer to that statute as the Vehicle Safety Act. It is codified at 49 U.S.C. 30101, et seq.

The Vehicle Safety Act defines the term "motor vehicle" as "any vehicle driven or drawn by mechanical power manufactured primarily for use on the public streets, roads, and highways, except any vehicle operated exclusively on a rail or rails." If a vehicle is a motor vehicle under the definition, it must comply with all applicable Federal motor vehicle safety standards (FMVSSs). These standards specify safety performance requirements for motor vehicles and/or items of motor vehicle equipment. Manufacturers of motor vehicles must certify compliance with all applicable safety standards and permanently apply a label to each vehicle stating that the vehicle complies with all applicable FMVSSs and providing the GVWR.

FMVSS No. 206, Door locks and door retention components, is one of these standards. S4.1.3 of the standard specifies that "[e]ach door shall be equipped with a locking mechanism with an operating means in the interior of the vehicle." However, if the vehicles for which Fedex wishes to have the door locks disabled are not motor vehicles, there is no requirement that they meet the requirements of FMVSS No. 206, or any other Federal motor vehicle safety standard.

Whether we consider those vehicles to be motor vehicles depends on their use. We have long stated that vehicles such as airport runway vehicles, that are designed and sold solely for off-road use, are not considered motor vehicles under the Vehicle Safety Act, even if they are operationally capable of highway travel.

As noted in your letter and in the subsequent conversation with Ms. MacPherson, the Fedex vehicles in question will be customized by the final stage manufacturer for airport use, will remain on airport property, and will be used solely for transporting cargo to and from airplanes. Accordingly, we have determined that these vehicles would not be motor vehicles as defined in the Vehicle Safety Act, and you are not prohibited from having the final stage manufacturer disable the door locks on those vehicles.

Should you require any additional information or assistance, please contact Rebecca MacPherson, of my staff, (202) 366-2992 or at the address given above.

Sincerely,
Jacqueline Glassman
Chief Counsel
ref:595
d.7/16/02

ID: 24322.ztv

Mr. Jesus Cid
3139 Minonee Lane
Carson, NV 89701

Dear Mr. Cid:

Senator Reid has asked us to reply to your e-mail to him requesting information on the legality of neon lights "on the outside or inside" of your car.

I am enclosing copies of representative letters we have sent some other persons who asked this question. These are our letters of April 21, 1992, to Allan Schwartz of Tron Industries, and of July 29, 1993, to Charles D. Shipley, Director, Ohio Department of Public Safety. The views expressed in these letters remain unchanged today, in 2002 (however, the American Association of Motor Vehicle Administrators (AAMVA) no longer provides interpretations of State laws).

You did not specify the location on the outside of the car where you would like to install neon lights. The most frequent location appears to be under the car, and the letters we are sending you address underbody neon lighting. However, these letters do not cover neon lighting in the interior (see discussion below).

Federal law permits you as a vehicle owner to modify your vehicle personally in any way you wish. However, these modifications are subject to State law. We are not conversant with State laws, and, specifically, we do not know whether neon lighting on or in a motor vehicle is permitted by Nevada. We suggest that you call your local office of the Department of Motor Vehicles.

If the neon lighting is to be installed by a person other than yourself (specifically, a manufacturer, distributor, dealer, or motor vehicle repair business), there is an applicable provision of Federal law. This law is intended to ensure that the performance of original equipment installed as required by a Federal motor vehicle safety standard is not diminished by modifications after the vehicle is first sold. To avoid violating this law, the installer of the neon lighting should determine that its use would not have a negative effect upon the performance of the vehicle's original lighting equipment which has been installed, as required, by a Federal motor vehicle safety standard (or any other equipment installed in accordance with such a standard). For example (see our letter to Mr. Schwartz), the intensity of neon lights on the exterior should not mask the intensity of turn signal and stop lamps. A neon light in the interior should not be placed in the rear parcel shelf to avoid confusion and diminishing the effect of the center highmounted stop lamp. Even if you and the installer decide that the neon lighting you desire would not have a negative effect upon the performance of other lamps, the legality of neon lighting remains subject to the laws of Nevada, or any other State where the car is driven.

Sincerely,
Jacqueline Glassman
Chief Counsel
Enclosures
ref:108
d.5/17/02

ID: 24333

Mr. Wayne Millson
Collins & Aikman
500 Laird Road
Guelph, Ontario N1G 3X7
Canada

Dear Mr. Millson:

This responds to your e-mail of March 22, 2002, in which you ask several questions about Federal Motor Vehicle Safety Standard (FMVSS) No. 302, "Flammability of Interior Materials." Each of your questions is addressed below.

Frequency of Testing

First, you ask whether the National Traffic and Motor Vehicle Safety Act ("the Safety Act," Title 49, United States Code, Chapter 301), specifies how frequently an item of motor vehicle equipment must be tested for the purpose of compliance with the FMVSSs. Specifically, you ask: "If a part is tested once, is there any requirement to re-test the part at a model year change if there has been no change to the part itself?"

The answer is the Safety Act does not specify how frequently an item of motor vehicle equipment must be tested. However, the Safety Act does require that manufacturers exercise "reasonable care" to ensure that their products conform to each applicable standard (49 U.S.C. 30115(a)). A manufacturer must take whatever steps are necessary to ensure that each part covered by FMVSS No. 302, if tested according to the requirements of the standard, would meet those requirements.

Surrogate Testing Requirement

Second, you ask about a provision in S5.2.1 for surrogate testing. You ask: "The end of paragraph S5.2.1 refers to a surrogate testing requirement under S4.1.1. S4.1.1 only says [Reserved]. What does this mean? How do I find out when it is acceptable to use surrogate data?"

The answer is there is no surrogate testing provision in FMVSS No. 302. As explained below, the reference in S5.2.1 to surrogate testing is an obsolete provision from a 1975 rulemaking, and should be disregarded.

S5.2.1 contains specifications for the preparation of test specimens. The last sentence of S5.2.1 reads: "The maximum available length or width of a specimen is used where either dimension is less than 356 mm or 102 mm, respectively, unless surrogate testing is required under S4.1.1." As you note, S4.1.1 is reserved.

The National Highway Traffic Safety Administration had added the surrogate testing option in a March 31, 1975 final rule (40 FR 14318) in response to comments suggesting that small components be exempted from the testing requirements of FMVSS No. 302. The agency denied the request to exempt small components, but added S4.1.1 to the standard to provide for surrogate testing of small components, e.g., switches, knobs, gaskets, and grommets, because they were too small to be effectively tested under the procedures in place at the time.⁽¹⁾ In a September 16, 1975 final rule (40 FR 42746), NHTSA deleted S4.1.1 (and "reserved" the paragraph for codification purposes) because several vehicle manufacturers wanted an opportunity to comment on the surrogate testing provision. NHTSA reissued the provision in the form of a notice of proposed rulemaking that same day (40 FR 42756). However, the agency did not later adopt the surrogate testing proposal. NHTSA also did not remove S4.1.1 or the reference to it in S5.2.1. Thus, the reference to a surrogate testing requirement in S5.2.1 remained even though the surrogate testing requirement was deleted.

Surfaces Created By Cutting a Test Specimen

Finally, you ask about the meaning of the last sentence in S4.3(a) of FMVSS No. 302. S4.3(a) reads:

When tested in accordance with S5, material described in S4.1 and S4.2 shall not burn, nor transmit a flame front across its surface, at a rate of more than 4 inches per minute. The requirement concerning transmission of a flame front shall not apply to a surface created by cutting a test specimen for purposes of testing pursuant to S5.

You ask how the last sentence would apply to:

a sectioned instrument panel where the sample consists of an outer PVC skin that is the finished surface the vehicle occupant sees and is only a couple of millimeters thick fully adhered to a polyurethane foam which comprises the remainder and bulk of the one-half inch sample being tested. In this instance, the PVC skin does not burn, but the flame is transmitted across the foam portion of the composite.

Our answer is that any surface not created by the cutting of the test specimen is required to comply with the burn-rate limit of S4.3(a). However, surfaces created by the cutting of the test specimen are excluded from this requirement because cutting certain materials to the prescribed thickness produces a tufted surface upon which a flame front may be propagated at a faster rate than it would be upon the surface of the material before cutting, thereby creating an artificial test condition.

Based on the information in your e-mail, this exclusion would not apply to the polyurethane foam portion of your test sample because that surface was not created by cutting the material to be tested to the prescribed thickness. Rather, the foam portion and the PVC outer skin should be tested as a composite material, as required by S4.2 of FMVSS No. 302. (S4.2 requires any portion of a single or composite material that is within 13 mm of the occupant compartment air space to meet the burn-rate requirements of S4.3. S4.2.2 specifies that any material that adheres to other materials at every point of contact shall meet the requirements of S4.3 when tested as a composite with the other materials.)

I hope you find this information helpful. For your convenience, I have enclosed an information sheet that briefly describes NHTSA's requirements and that tells you how you can obtain copies of our regulations. If you have any further questions, please contact Dion Casey of my staff at (202) 366-2992.

Sincerely,
Jacqueline Glassman
Chief Counsel
Enclosure
ref:302
d.5/17/02

^1. S4.1.1 had read: "If a test sample at least 6 inches long cannot be produced from a component because of its size, a test sample or samples with composition identical to that of the component material(s) shall be produced in the shape of a rectangle 4 inches wide, 14 inches long, and as thick as the component, up to inch, and shall be used for testing pursuant to S5."

ID: 24338

Mr. Dale Dierks
Engineering Manager
Dakota Manufacturing
PO Box 1188
Mitchell, SD 57301

Dear Mr. Dierks:

This responds to your letter in which you asked whether the tilt bed trailers manufactured by Dakota Manufacturing are excluded from Federal Motor Vehicle Safety Standard No. 224, "Rear Impact Protection." As explained below, the answer is no.

According to your letter, your tilt bed trailers are flatbed trailers with bed heights ranging from 35.4 to 39.1 inches off the ground. At the rear of the bed is an approach plate that extends across the entire rear of the trailer. When the trailer bed is tilted for loading purposes, the approach plate is extended outward and bridges the gap between the trailer bed and the ground. When the trailer is in transit, the approach plate is locked in a downward position. The height of the approach plate, when it is locked in a downward position, ranges from 15.6 to 19.4 inches off the ground.

Standard No. 224 requires most trailers and semitrailers with a gross vehicle weight rating (GVWR) over 10,000 pounds to be fitted at the rear with a rear impact guard meeting the requirements of Standard No. 223, "Rear Impact Guards." However, certain kinds of vehicles are excluded. The only excluded categories that are relevant for the purposes of this letter are the low chassis vehicle and special purpose vehicle categories.

Low Chassis Vehicle

A "low chassis vehicle" is defined in S4 of Standard No. 224 as "a trailer or semitrailer having a chassis that extends behind the rearmost point of the rearmost tires and a lower rear surface that meets the configuration requirements of S5.1.1 through S5.1.3 of this section." In other words, the chassis itself must satisfy the configuration requirements applicable to a rear impact guard when the vehicle is outfitted for transit. S5.1.1 through S5.1.3 require the guard to extend to within four inches of the side extremities of the vehicle, be no higher than 22 inches across the full width of the guard, and be located within 12 inches of the rear extremity of the vehicle.

The only part of your trailer that meets these configuration requirements is the approach plate. As noted above, the approach plate is located at the rear extremity of your trailer, extends the full width of your trailer, and is 15.6 to 19.4 inches above the ground. Therefore, the question becomes whether the approach plate is considered to be part of the chassis of your trailer.

"Chassis" is defined in S4 as "the load supporting frame structure of a motor vehicle." There are two elements to this definition that must be satisfied: "frame structure" and "load supporting."

To be considered part of the frame structure, a structural member must be either an integral part of the overall frame structure, or be connected with other frame structural members in a way that is necessary to the structural integrity of the trailer. One factor we consider in deciding whether a structural member is part of the frame is its size and strength. Frame structural components often are the major structures defining the shape of the trailer. Although frame structure is not limited to the largest frame components (i.e., the frame rails for most trailers), generally frame components are substantial and have strength similar to other frame components. We also consider the purpose and function of the structural member in supporting the trailer and its load.

To be considered load supporting, the frame structure must support a load when the trailer is performing its function. Generally, this means that the structure would have to contribute to supporting the cargo load when the trailer is in transit.

Applying these principles to your tilt bed trailer, we find that the approach plate is not part of the chassis. The approach plate does not meet the "load supporting" aspect of the chassis definition because the approach plate does not contribute to supporting cargo load. The approach plate also is not part of the frame structure of the trailer. The approach plate does not define the shape of the trailer. Instead, it hangs down from the rear end of the trailer, forming a protrusion from the outline of the trailer bed. Finally, the size and strength of the approach plate are not similar to the other frame components, and it is not considered integral with another frame member.

In consideration of these factors, we believe that the approach plate is not part of the frame structure, but an attachment. Thus, the approach plate is not part of the chassis, and your tilt bed trailers are not excluded from Standard No. 224 as low chassis vehicles.

Special Purpose Vehicle

We turn now to the question of whether your tilt bed trailers are excluded as special purpose vehicles. A "special purpose vehicle" is defined in S4 of Standard No. 224 as "a trailer or semitrailer having work-performing equipment that, while the vehicle is in transit, resides in or moves through the area that could be occupied by the horizontal member of the rear impact guard, as defined by S5.1.1 through S5.1.3." Again, the approach plate is the only part of your tilt bed trailer that, while the vehicle is in transit, resides in the area that could be occupied by the rear impact guard. Therefore, the approach plate would have to be considered work-performing equipment for your tilt bed trailer to be excluded.

There is no definition of "work-performing equipment" in Standard No. 224. The Agency has historically interpreted the words "work-performing" to mean that the equipment must actively perform its function, and that the function must involve exerting force or moving something else.

Approach plates do not perform work in this sense because they merely form a ramp between the ground and the vehicle or equipment driving onto the tilt bed. Therefore, the approach plate is not work-performing equipment, and your tilt bed trailer does not meet the definition of a special purpose vehicle.

Since your trailer does not meet the definition of an excluded category, and it has a GVWR over 10,000 pounds, it must be equipped with a rear impact guard meeting our standards. In your letter, you stated that you currently install rear impact guards on your tilt bed trailers, but that the guards have added "significant cost" to your trailers.

Another option you might consider is whether your approach plate could "be" the rear impact guard. The approach plate already appears to meet the configurational requirements for a rear impact guard. If it does not currently meet the strength and energy absorption requirements of Standard No. 223, you might be able to reinforce or otherwise modify the approach plate sufficiently so that it would pass these requirements. If you can do this, the approach plate itself could be labeled and certified as a guard under Standard No. 223.

I hope you find this information useful. If you have any further questions, please feel free to contact Dion Casey of my staff at (202) 366-2992.

ref:224

d.8/1/02

ID: 24345.ztv

Mr. Ronald E. Kish
Plastics by Design, Inc.
P.O. Box 220
Marcellus, MI 49067

Dear Mr. Kish:

This is in reply to your recent undated letters to Frank Seales, Jr., and John Womack, with reference to a license plate lamp you intend to market for use on a cargo utility trailer. You enclosed a test report and stated that the test results are "within the SAE Standard J587 and FMVS 108." You asked "may we market this model as compliant with D.O.T. ???"

Under the primary motor vehicle safety statute, 49 U.S.C. Chapter 301, a manufacturer of motor vehicle equipment must certify that its product complies with all applicable Federal motor vehicle safety standards (FMVSS) if there is a FMVSS that applies to its product (49 U.S.C. 30115). Paragraph S5.8, the replacement equipment provisions of FMVSS No. 108, applies to the license plate lamp you intend to manufacture. FMVSS No. 108 allows you, as the manufacturer, to certify compliance by labeling each lamp with a DOT symbol (S5.8.10). Use of this symbol identifies the lamp as compliant with DOT standards applicable to license plate lamps, but if you wish to use further language indicating compliance, we prefer that you say the lamp "complies with FMVSS No. 108" rather than "compliant with D.O.T."

We express no opinion as to whether your lamp design complies with FMVSS No. 108. The test report you sent us relates to the photometric performance of a center highmounted stop lamp with a clear red lens, and you cannot use this as a basis for certifying conformance of a license plate lamp.

Assuming that you have, or will have, a test report indicating that your license plate lamp meets SAE J587, the fact that a prototype lamp meets the tests specified in applicable SAE standards does not necessarily indicate that all production lamps will comply with SAE specifications incorporated by reference in FMVSS No. 108. A manufacturer must exercise "reasonable care" in ensuring that each of its products complies with all applicable FMVSS and in certifying such compliance (49 U.S.C. 30112(b)(2)(A), 30115) in order not to violate the provisions of Chapter 301. Occasional surveillance testing of production items is one means of ensuring continuing compliance of products.

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

Sincerely,
Jacqueline Glassman
Chief Counsel
ref:108
d.6/14/02