ID: 22042.drn

The Honorable Jerry Moran
United States House of Representatives
1200 Main St. Suite 402
P.O. Box 249
Hays, KS 67801-0249






Dear Congressman Moran:

Thank you for your letter to the Department of Transportation's Office of Congressional Affairs, on behalf of Mr. Richard Cain, Assistant Superintendent for Finance of Unified School District 489 in Hays, Kansas. Mr. Cain seeks assistance in purchasing an "over-the-road activity bus" (motorcoach) that apparently does not meet Federal school bus standards. The manufacturer of the bus has apparently stated that based on the requirements of the National Highway Traffic Safety Administration (NHTSA), the bus cannot be sold to your constituent's school district. Insofar as another school district, USD 457 apparently purchased an identical bus in 1998, Mr. Cain wants to know "whether NHTSA's standards have changed" since that time.

Because NHTSA administers Federal regulations for school buses, your letter has been referred to my office for reply. 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(a) 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 "school bus" 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. ⁽¹⁾ 49 U.S.C. 30125. This definition was enacted in 1974, as part of a comprehensive effort by Congress to increase school bus safety. By regulation, the capacity threshold for school buses corresponds to that of buses -- vehicles designed for carrying more than ten (10) persons.

The great majority of vehicles used to transport students fall within the definition of "school bus." More specifically, any new "bus" (including a motorcoach) sold to a school district, or to a school bus contractor, is considered to be a "school bus" when sold for pupil transportation, and as such must comply with the school bus safety standards. A dealer or distributor who sells a new bus to a school district or school bus contractor that does not meet school bus standards is subject to penalties under the statute. There has been no change in NHTSA's laws on dealers' sales of new buses to school districts in the past two years. We plan to look into whether the sale of a similar bus to USD 457 in 1998 violated our laws.

Because our laws generally apply only to manufacturers and dealers of new motor vehicles, we do not regulate a school district's use of a bus to transport school children, even when the bus does 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.

As Mr. Cain has pointed out in his letter, a school district can be sold a used motorcoach, even when the bus could not be sold when new. This is because our requirement to sell vehicles that meet applicable safety standards does not apply to the sale of a motor vehicle "after the first purchase of the vehicle ... in good faith other than for resale," i.e., to sales of used vehicles. (See 49 U.S.C. 30112(b)(1).) Nonetheless, because school buses are one of the safest forms of transportation in this country, we 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 buses 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 non-school buses.

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 enclosed 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.

I hope this information is helpful. If you have any further questions, please contact John Womack, Esq., NHTSA's Senior Assistant Chief Counsel, at (202) 366-9511.

Sincerely,

Frank Seales, Jr.
Chief Counsel

Enclosures

ref:VSA#571.3
d.9/27/00


---

1. NHTSA has consistently interpreted "related events" to include school-sponsored field trips and athletic events.

ID: 22044

Mr. Matthias Friedrich
Managing Director
Van Riesen GmbH+CoKG
IndustriestraBe 10
D-32130 Enger
Denmark





Dear Mr. Friedrich:

This is in response to your letter asking whether the buckle release on your child restraint system meets the area requirements of Federal Motor Vehicle Safety Standard (FMVSS) No. 213, "Child Restraint Systems." The answer is no.

S5.4.3.5(c) of Standard No. 213 requires any buckle in a child restraint system to "[m]eet the requirements of S4.3(d)(2) of FMVSS No. 209 ( 571.209), except that the minimum surface area for child restraint buckles designed for push button application shall be 0.6 square inch." You state that your buckle release design would meet this requirement if we add the "press" area (0.39 square inch) of the release button to the bottom area (0.23 square inch) of the release button.

We do not consider your buckle release to be designed for push button application because a sliding action activates the buckle release. In fact, it is apparent from your letter that you concur that the buckle release is not of a push button type. You state in your letter: "The button is not a push-button as described in the FMVSS-standard, [sic] it is as [sic] slide action release button . . . ." Since your buckle release is not designed for push button application, the 0.6 square inch minimum surface area requirement in S5.4.3.5(c) does not apply.

S4.3(d)(2) of Standard No. 209 reads:

A buckle designed for pushbutton application of buckle release force shall have a minimum of 452 mm with a minimum linear dimension of 10 mm for applying the release force, or a buckle designed for lever application of buckle release force shall permit the insertion of a cylinder 10 mm in diameter and 38 mm in length to at least the midpoint of the cylinder along the cylinder's entire length in the actuation portion of the buckle release. A buckle having other design for release shall have adequate access for two or more fingers to actuate release.

(Emphasis added.)

Because your buckle release is designed for slide application rather than push button or lever application, your buckle release falls under the "other design for release" category. Under the last sentence of S4.3(d)(2), it must have adequate access for two or more fingers to actuate release. None of our staff working on this response was able to place two fingers into your slide action release button to actuate release, and you do not claim otherwise. Thus, we do not agree that your buckle release meets the requirement of S4.3(d)(2).

If you have any further questions, please feel free to contact Mr. Dion Casey of this office at (202) 366-2992.

Sincerely,

John Womack
Acting Chief Counsel

ref:213#209
d.2/6/01

ID: 22052

Mr. Wade Vandiver
Hays, McConn, Rice & Pickering
400 Two Allen Center
1200 Smith Street
Houston, TX 77002





Dear Mr. Vandiver:

This responds to your letter in which you request information on Federal seat belt regulations. I apologize for the delay in our response. Your letter raises the issue of whether Federal law requires a person who is not a manufacturer, distributor, dealer or repair business and who installs temporary benches in the bed of a used pickup truck to equip each seating position with a seat belt. As discussed below, the answer is no.

By way of background information, the National Highway Traffic Safety Administration (NHTSA) is authorized to issue Federal motor vehicle safety standards applicable to the manufacture and sale of new motor vehicles and items of motor vehicle equipment. NHTSA has exercised this authority to establish Federal Motor Vehicle Safety Standard No. 208, Occupant Crash Protection (49 CFR 571.208), which specifies performance requirements for the protection of vehicle occupants in crashes. Standard No. 208 required model year 1988 pickup trucks to have a Type 2 (lap/shoulder) seat belt assembly at each forward-facing front outboard designated seating position, and either a Type 1 (lap) or Type 2 seat belt assembly at all other designated seating positions.

NHTSA's safety standards apply only to new motor vehicles and new motor vehicle equipment. Since the benches were installed in the pickup bed after the first purchase of the vehicle, Standard No. 208 does not apply directly to those benches. However, 49 U.S.C. 30122(b) applies in the case of used as well as new vehicles. That section reads as follows:

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 safety standard prescribed under this chapter 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 affect modifications made by vehicle owners to their own vehicles. Accordingly, looking at the specific factual situation identified by your letter, modifications made by a contractor who has been provided a vehicle for the contractor's sole use and operation are not subject to the provisions of this section .

As I am sure you are aware, however, individual States have the authority to regulate modifications that vehicle owners may make to their own vehicles and the operation of these vehicles. We offer no view on the impact of such State laws or whether they would apply to the operation of vehicles off of public roadways. Therefore, you should determine if any state laws govern this particular modification. In addition, while Federal law does not apply to a modification an individual makes to his or her own vehicle, NHTSA urges vehicle owners to exercise care when installing new seats, and to install seat belts for each seating position.

I hope you find this information useful. If you have any further questions, please feel free to contact Otto Matheke in NHTSA's Office of Chief Counsel at (202) 366-2992.

Sincerely,

John Womack
Acting Chief Counsel

ref:208
d.4/26/01

ID: 22054.drn

Vincent P. Schulze, Chief
Commercial Bus Inspection and Investigation
State of New Jersey Department of Transportation
Division of Motor Vehicles
P.O. Box 160
Trenton, NJ 08666-0160






Dear Mr. Schulze:

This responds to your letter of May 18, 2000, to Mr. Chris Rotondo, of the Federal Motor Carrier Safety Administration (FMCSA) concerning test procedures for bus windows. Because you had questions about Federal Motor Vehicle Safety Standard No. 217, Bus emergency exits and window retention and release, which is administered by the National Highway Traffic Safety Administration (NHTSA), I have been asked to respond.

In your letter, you state that New Jersey State bus investigators are issuing summonses for safety violations during roadside bus safety inspections. The summonses are issued under the guidelines of a New Jersey statute, the "Bus Safety Compliance Act." One serious violation for which bus operators may be cited is "inoperable emergency exit windows." In your letter, you write:

However, it appears that the lawyers may have found a loophole to have most of these summonses thrown out of court (not guilty) due to a technicality in the Federal regulations that govern the operation of emergency exits. The Federal Motor Vehicle Safety Standard (FMVSS) 217, under Test Conditions, part S6.2 states: "The inside of the vehicle and the outside environment are kept at any temperature from 70 degrees to 85 degrees immediately preceding the tests, and during the tests."

Apparently, a bus company attorney has successfully argued in a New Jersey state court that the New Jersey Department of Transportation did not meet the test conditions specified in Standard No. 217 because it inspected the bus when the outside temperature was below 70 degrees. You are writing for clarification of S6 "Test conditions" in Standard No. 217.

Some background information about NHTSA's statutory authority may be helpful. NHTSA is authorized to issue and enforce FMVSSs applicable to new motor vehicles. Our statute at 49 U.S.C. 30112(a) requires any person selling a new motor vehicle to sell a vehicle that meets all applicable standards. Each manufacturer of a new bus must assure that the bus meets all applicable FMVSSs, including Standard No. 217. Section 30112 does not apply to the sale, offer for sale, or introduction or delivery for introduction in interstate commerce of a motor vehicle "after the first purchase of the vehicle ... in good faith other than for resale." 49 U.S.C. 30112(b). Nor does it govern operational requirements for vehicles, which are generally established by the States and, for certain trucks, buses, and commercial vehicles, by the FMCSA.

Pursuant to 49 U.S.C. 30111(a), all FMVSSs must "be stated in objective terms." For this reason, NHTSA includes test procedures in each of its FMVSSs so that manufacturers will be aware of the manner in which NHTSA will conduct its compliance tests. The provision of S6.2 quoted in your letter simply specifies the range of temperatures at which our compliance tests will be conducted, to ensure that the tests are conducted as uniformly and objectively as possible. The specification of test temperatures does not mean that emergency exits are only required to open when the ambient temperature is between 70 and 85 degrees.

We agree with you that the emergency exits should be operable under all the driving conditions to which a bus could be subjected. However, as stated above, this is a matter governed by State law, not by the NHTSA standard. Unless New Jersey has specifically incorporated Standard No. 217 in its entirety, including its test procedures, into its operational requirements, we see no reason why law enforcement officials in New Jersey would only be able to issue citations for inoperable emergency exit windows if they showed that the windows did not function properly within the temperature range specified in the NHTSA standard.

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

Sincerely,

Frank Seales, Jr.
Chief Counsel

cc:	Peter Chandler, Transportation Specialist FMCSA Office of Bus and Truck Standards and Operations 400 Seventh Street, SW Room 3419 Washington, DC 20590

ref:217
d.9/29/00

ID: 22058

Mr. Bob Snyder
Vice President
Longacre and Associates, Inc.
424 Fourth Street, Suite C
Annapolis, MD 21403





Dear Mr. Snyder:

This responds to your letter asking about the audible seat belt warning requirements of Standard No. 208, Occupant Crash Protection. I regret the delay in our response. Specifically, you ask the following questions:

1. Are vehicles allowed to have an intermittent audible warning longer than 8 seconds if a front seat occupant (driver or passenger) does not buckle his or her seat belt?
2. If so, when did the requirement change to allow an intermittent audible warning longer than 8 seconds?
3. Can the intermittent audible warning remain on indefinitely if the seat belt is not buckled?
4. Are continuous audible warnings allowed indefinitely?
5. What were the differences in the audible requirements for automatic and manual seat belt systems?

You asked your questions in the context of an article you read about Ford's "Belt-Minder" device. The issues raised by your letter are discussed below.

Paragraph S7.3 has long required that the driver's seating position be equipped with a seat belt warning system that activates, under specified circumstances, a continuous or intermittent audible signal for a period of "not less than 4 seconds and not more than 8 seconds."

To meet this requirement, a manufacturer must provide a continuous or intermittent audible signal that lasts for a period no shorter than 4 seconds and no longer than 8 seconds. The issue raised by your letter is whether a manufacturer that meets this requirement may also voluntarily provide a continuous or intermittent audible signal that sounds outside the required 4-8 second period.

As discussed below, it is our opinion that a manufacturer may voluntarily provide a continuous or intermittent audible signal that sounds outside the required period. However, as we discuss below, some means must be provided for differentiating the voluntarily provided signal from the required signal.

We note that the 8-second limitation on the audible signal required by paragraph S7.3 reflects a statutory requirement. 49 U.S.C. 30124 provides, in relevant part, that a motor vehicle safety standard "may not require or allow a manufacturer to comply with the standard by . . . using . . . a buzzer designed to indicate a safety belt is not in use, except a buzzer that operates only during the 8-second period after the ignition is turned to the 'start' or 'on' position." Congress enacted the predecessor to this provision in 1974 as part of legislation responding to public resistance to seat belt interlock systems, which prevented a vehicle from starting unless its seat belts were fastened. The Conference Report noted that the legislation prohibited the establishment of a continuous buzzer (one longer than 8 seconds) "as a mandatory or optional motor vehicle safety standard." See House Report 93-14521, pp. 44-45.

Given this statutory provision, the National Highway Traffic Safety Administration does not have the authority to require, or specify as a compliance option, an audible seatbelt warning that sounds outside the specified 8 second period. However, the statute does not prohibit vehicle manufacturers from voluntarily providing audible signals that sound outside that period. Nor do we believe it appropriate to interpret Standard No. 208 to prohibit manufacturers from voluntarily providing audible signals outside that period. We note that the Federal motor vehicle safety standards are "minimum standards," and manufacturers are permitted to go beyond the requirements of a standard. Moreover, we believe that Congress, in prohibiting this agency from specifying an audible seat belt warning longer than 8 seconds as a requirement or as an option, wanted to ensure that the Federal government would not be in the position of requiring or inducing vehicle manufacturers to provide a device that was unduly annoying or irritating to vehicle occupants, even though such a device might provide safety benefits. This does not, however, mean that vehicle manufacturers should be precluded from providing audible seat belt warning devices that sound outside the 8 second period that provide safety benefits without being unduly annoying or irritating.

Given Standard No. 208's requirement that the required seat belt warning be no longer than 8 seconds, a vehicle manufacturer wishing to provide a voluntary audible signal must provide some means for differentiating the voluntarily provided signal from the required signal. Such differentiation could be provided in various ways, e.g., by time (the voluntarily provided signal begins well after the required signal ends) or sound (the voluntarily provided signal has a different sound than the required signal).

I believe the above discussion is responsive to your first four questions. You also asked about the differences in the audible signal requirements for automatic and manual seat belt systems. However, you did not explain what sort of differences you are interested in. I note that the warning requirements for automatic seat belts may be found in paragraph S4.5.3.3 of Standard No. 208. While there are a variety of differences between S7.3 and S4.5.3.3, both paragraphs require activation, under specified circumstances, of a continuous or intermittent audible signal for a period of "not less than 4 seconds and not more than 8 seconds."

Finally, I note that in a letter to Joseph W. Phebus, Esq., dated August 7, 1996, we took the position, in the context of S4.5.3.3, that a chime that sounded at intervals of one minute if the belt is not buckled would not be permitted, given the requirement that the required audible signal may not be activated for a period of more than 8 seconds. For the reasons discussed above, we have reconsidered that interpretation and conclude that it was incorrect.

I hope this information answers your questions. If you have any further questions, please feel free to contact Edward Glancy of my staff at (202) 366-2992.

Sincerely,

John Womack
Acting Chief Counsel

ref:208
d.5/25/01

ID: 22060.ztv

Mr. Joel Martin
Malaguti USA
7368 NW 12^th St.
Miami, FL 33126





Dear Mr. Martin:

This is in reply to your undated fax to George Entwistle of this agency, received in August 2000, asking three questions about motorcycle importers.

These questions are:

"1.   Does NHTSA prefer one importer per brand or does it allow several importers to bring in the brand from the same foreign manufacturer."

The foreign manufacturer determines the number of importers of its product. The manufacturer does not consult with NHTSA on this matter, and NHTSA has no preference.

"2.   Second if testing for the importation of a motorcycle was paid for and done by one importer would another importer be allowed to use the same test results in order to verify compliance? In the case of the second importer would they have to provide their own test results if the first set of tests was privately owned and commissioned by the first importer?"

We are unsure of the basis for your question. A motorcycle, like other motor vehicles, must be manufactured to comply and be certified by its manufacturer, through a plate affixed to the vehicle, as complying with all applicable Federal motor vehicle safety standards (FMVSS) in order to be imported into the United States. If the motorcycle is certified by its manufacturer, no further testing by any importer is required. If the motorcycle is not certified, it can only be imported for resale by a registered importer pursuant to 49 CFR Parts 591-594, after we have determined that the motorcycle is capable of being modified to comply with the applicable FMVSS.

We can interpret your question two ways. If the first importer conducts tests on behalf of the foreign manufacturer who then certifies its product on the basis of these tests before the vehicle is imported into the United States, a second importer does not have to test the product.

Our alternative response to your question assumes that the foreign manufacturer of the motorcycle has not certified it as meeting the FMVSS, that both importers have registered as importers under 49 CFR Part 592, and that we have decided, on the basis of a petition submitted by the first importer, as provided in 49 CFR Part 593, that the motorcycle is capable of being modified to meet all applicable FMVSS. As importers of motor vehicles for resale, each registered importer of the motorcycles becomes a "manufacturer" under our laws, responsible for compliance, certification, and notification and remedy when safety recalls are required. In filing its capability petition, a registered importer must establish the technical feasibility of modifying a vehicle to conform, but need not disclose the exact methods it will use to conform the vehicle. The information accompanying the petition is available in a public docket, and only rarely does a petitioner ask that portions of it be withheld from disclosure as confidential business information. To the extent that the first importer has disclosed conformance methods in the publicly available materials, a second importer may use this information in its own conformance operations without further testing.

In addition to affixing its certification label to a vehicle, a registered importer must also "certify" compliance to NHTSA, submitting information which may disclose the tests it conducted in conforming the vehicle. These submittals are not in a public docket and may be treated as confidential business information which is not available to other registered importers of the same vehicle. If the first importer chooses not to share test data and compliance methods with the second importer on a contractual or other basis, the second importer must independently develop its own conformance methods to assure the validity of its certification of the vehicle and to NHTSA.

"3.   I have noticed that there are three importers for the scooter brand Derbi in the United States, but that all three carry different lines of product from the same manufacturer. * * * Is this because of an NHTSA guideline for multiple importers for the same product?"

No. NHTSA has no "guidelines for multiple importers for the same product." In this instance, the manufacturer appears to have different agreements with each of the three importers of its products.

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





Sincerely,

Frank Seales, Jr.
Chief Counsel

ref:592
d.11/9/00

ID: 22118evisor1

Mr. David H. Coburn
Steptoe & Johnson LLP
1330 Connecticut Avenue, NW
Washington, DC 20036-1795





Dear Mr. Coburn:

This responds to your letter requesting an interpretation of Federal Motor Vehicle Safety Standard (FMVSS) No. 205, Glazing materials, with respect to a product that would "automatically, and virtually immediately upon activation, create a shade band on top of the front windshield of a vehicle."

You state in your letter that your client, Al-Coat, Ltd., a corporation based in Israel, has developed an electro-optical sun visor known commercially as e-Visor. The e-Visor is composed of a thin plastic band attached to the top part of the windshield. The e-Visor is approximately 5 inches wide and is made out of an electronically controlled light modulating (ECLM) film generally constructed with Polymer Dispersed Liquid Crystal technology. The ECLM film lightens with the application of voltage and returns to a darkened state when no voltage is applied. An electronic unit mounted under the dashboard controls the voltage applied to the band. A control unit mounted on the dashboard allows the driver to turn the band on or off, or place it in an automatic mode.

In the automatic mode, the voltage applied to the band is controlled by a sunlight sensor mounted on the front windshield of the vehicle. The sensor responds to sunlight, causing the ECLM film to "instantaneously" assume a darkened state in "blinding or bright sunlight." In a darkened state, the e-Visor reduces the light transmittance of the windshield to approximately 1 percent, while the light transmittance in its lightened state is "approximately 50 percent." You state that the e-Visor "would have no effect on any part of the front windshield other than the area traditionally reserved for a shade band located near the top of the front windshield." You also state that Al-Coat seeks to import this product into the United States. The e-Visor would be made available to original equipment manufacturers and/or marketed as an aftermarket product for installation on used vehicles.

By way of background information, the National Highway Traffic Safety Administration (NHTSA) has the statutory authority to issue FMVSSs applicable to new motor vehicles and new items of motor vehicle equipment. NHTSA, however, does not approve motor vehicles or motor vehicle equipment or pass on the compliance of a vehicle or item of equipment outside the context of an actual enforcement proceeding. Instead, Federal law establishes a self-certification system under which motor vehicle and equipment manufacturers themselves certify that their products comply with all applicable standards. The following represents our opinion based on the facts set forth in your letter.

Installation in New Vehicles

A manufacturer of a new vehicle must certify that its vehicle meets all applicable Federal motor vehicle safety standards. Any person who manufactures or sells a new vehicle which does not conform to any safety standard is subject to civil penalties and recall action under our statute.

NHTSA has issued FMVSS No. 205, Glazing materials, to establish performance and location requirements for glazing in each new motor vehicle. FMVSS No. 205 incorporates an industry standard, the American National Standard "Safety Code for Safety Glazing Materials for Glazing Motor Vehicles Operating on Land Highways (ANSI Z26.1)." Under FMVSS No. 205 and the ANSI standard, glazing for use at levels intended for driving visibility must meet all of the requirements of the standard, including those on light transmittance. FMVSS No. 205 and ANSI Z26.1 apply a 70 percent light transmittance requirement to areas of glazing that are requisite for driving visibility.

In all vehicles, the windshield is considered requisite for driving visibility. However, ANSI Z26.1 provides that a manufacturer may provide an area on the glazing that has a light transmittance of less than 70 percent as long as the areas requisite for driving visibility have a light transmittance of 70 percent. Our longstanding position has been that the area of the windshield traditionally comprising a shade band is not considered requisite for driving visibility, so that area may have a light transmittance of less than 70 percent.

After reviewing the information you have submitted, we have concluded that the e-Visor operates and is intended to operate as a shade band. We have reached this conclusion based on the specific facts and purposes of your client's particular design and on your representations that the product would not affect any part of the windshield other than within the area traditionally reserved for a shade band; i.e., an approximate 5-inch band located near the top of the windshield. As a shade band in that location, the e-Visor would not be subject to FMVSS No. 205's light transmittance requirement.

Although the agency has concluded that your shade band is not in an area considered requisite for driving visibility, it is important to note that we are in the midst of rulemaking on limiting the width of shade bands. We have published an August 4, 1999, notice of proposed rulemaking (64 FR 42330) on this subject. It may be appropriate for you to examine whether the e-Visor would be affected by a possible new shade band requirement.

Of course, a new vehicle with the e-Visor must be certified, for its location and installation (e.g., windshield), as meeting all other requirements in FMVSS No. 205, including all applicable performance requirements of the standard (haze resistance, scratch resistance, and etc.). In addition, there are a number of other standards that might be affected by installation of the component. In particular, I would like to draw your attention to FMVSS No. 103, Windshield defrosting and defogging systems, FMVSS No. 212, Windshield mounting, FMVSS No. 219, Windshield zone intrusion, and FMVSS No. 201, Occupant protection in interior impact. You should carefully review these and all other FMVSSs to determine how the product would affect a vehicle's conformance with these standards.

In addition, S5.3.5 of FMVSS No. 101, Controls and displays, reads as follows:

Any source of illumination within the passenger compartment which is forward of a transverse vertical plane 110 mm rearward of the manikin "H" point with the driver's seat in its rearmost driving position, which is not used for the controls and displays regulated by this standard, which is not a telltale, and which is capable of being illuminated while the vehicle is in motion, shall have either (1) light intensity which is manually or automatically adjustable to provide at least two levels of brightness, (2) a single intensity that is barely discernible to a driver who has adapted to dark ambient roadway conditions, or (3) a means of being turned off. This requirement does not apply to buses that are normally operated with the passenger compartment illuminated.

The purpose of this requirement is to prevent glare visible to the driver. If the e-Visor control unit installed in view of the driver were capable of operation while the vehicle is in motion, it would be subject to this requirement.

As an Aftermarket Item of Equipment

The e-Visor is an item of motor vehicle equipment since it would be sold as part of a motor vehicle or as an addition to a vehicle. (See 49 U.S. Code (U.S.C.) 30102(a)(7)). While the e-Visor is an item of motor vehicle equipment, NHTSA has not issued any FMVSSs establishing performance standards directly applicable to this product if it were sold directly to consumers for installation on used vehicles. However, the manufacturer, whether your client or a licensee, is subject to the requirements of 49 U.S.C. 30118-30120 which set forth the recall and remedy procedures for products with defects related to motor vehicle safety. Thus, if NHTSA or the manufacturer determines that the product contains a safety-related defect, the manufacturer is responsible for notifying purchasers of the defective equipment and for remedying the problem free of charge. (Note that this responsibility is borne by the vehicle manufacturer in cases in which the product is installed on a new vehicle by or with the express authorization of that vehicle manufacturer.)

The installation of the e-Visor by a commercial entity is also subject to other restrictions. Our statute at 49 U.S.C. 30122 provides that a manufacturer, distributor, dealer, or vehicle repair business may not knowingly "make inoperative" any device or element of design installed on or in a motor vehicle in accordance with any FMVSS. Therefore, the e-Visor could not be installed by any of those entities if such use would adversely affect the ability of a vehicle's glazing to comply with the performance requirements of FMVSS No. 205, as well as the compliance of a vehicle with any other FMVSS. You should carefully review the FMVSSs to determine whether installation of the e-Visor would affect a vehicle's compliance with the standards. ⁽¹⁾

I note that the Federal Motor Carrier Safety Administration has jurisdiction over interstate motor carriers operating in the United States. You should contact that Administration at (202) 366-2519 for information about any requirements that may apply to your product. In addition, states have the authority to regulate the use and licensing of vehicles operating within their jurisdictions and may have restrictions on shade bands. Therefore, you should check with the Department of Motor Vehicles in any state in which the equipment will be sold or used.

Also, there is a procedural regulation that you need to meet to import the e-Visor into the United States. 49 CFR Part 551, "Procedural Rules," requires the actual manufacturer of foreign-manufactured motor vehicle equipment to designate a permanent resident of the United States as the manufacturer's agent for service of process in this country. The designation of the agent for the service of process must contain the following six items in order to be valid under section 551.45:

1. A certification that the designation is valid in form and binding on the manufacturer under the laws, corporate by-laws, or other requirements governing the making of the designation at the time and place where it is made;

2. The full legal name, principal place of business, and mailing address of the manufacturer;

3. Marks, trade names, or other designations of the origin of any of the manufacturer's products which do not bear its name;

4. A statement that the designation shall remain in effect until withdrawn or replaced by the manufacturer;

5. A declaration of acceptance duly signed by the agent appointed, which may be an individual, a firm, or a U.S. corporation; and

6. The full legal name and address of the designated agent.

In addition, the designation must be signed by one with authority to appoint the agent, and the signer's name and title should be clearly indicated beneath his or her signature. This designation should be mailed to the address shown in section 551.45(b).

For your further information, I am enclosing a fact sheet we prepared entitled Information for New Manufacturers of Motor Vehicles and Motor Vehicle Equipment, and Where to Obtain NHTSA's Safety Standards and Regulations.

I hope this information is helpful. If you have any questions or need additional information, feel free to contact Nancy Bell of my staff at (202) 366-2992.

Sincerely,

John Womack
Acting Chief Counsel

Enclosure
ref:205
d.2/20/01





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1. The "make inoperative" provision does not apply to equipment attached to or installed on or in a vehicle by the vehicle owner. However, NHTSA urges vehicle owners not to degrade the safety of any system or device on their vehicles.

ID: 22131.drn

Mr. Timothy Tassick
Innovtech LLC
5 West Byler Road
Mercer, PA 16137






Dear Mr. Tassick:

This responds to your request for an interpretation whether your product, a warning device called the "Collapse-a-Cone" must meet Federal Motor Vehicle Safety Standard No. 125, Warning devices. In a telephone conversation with Dorothy Nakama of my staff, you stated that you will market the product for use with motor vehicles with less than 10,000 pounds (lb) gross vehicle weight rating (GVWR). As explained below, because your warning device is designed to be carried in motor vehicles with a GVWR of 10,000 lb or less, Standard No. 125 does not apply to this product. However, since your product is "motor vehicle equipment," your company, Innovtech, as the manufacturer, is subject to the National Highway Traffic Safety Administration's (NHTSA's) laws.

NHTSA is authorized to issue Federal motor vehicle safety standards (FMVSSs) for new motor vehicles and new items of motor vehicle equipment. Unlike the practice in many countries, NHTSA does not provide approvals of motor vehicles or motor vehicle equipment. Instead, manufacturers are required to certify that their vehicles and equipment meet applicable standards.

Effective October 31, 1994, NHTSA amended Standard No. l25 so that the standard applies only to warning devices that are designed to be carried in buses and trucks that have a GVWR greater than 10,000 lb. (See 59 FR 49586; September 29, 1994, copy enclosed.) If sold for use with buses and trucks with a GVWR greater than 10,000 lb, your company's warning devices must meet Standard No. 125's detailed specifications for a warning device. However, if the warning device is sold for use with vehicles with a GVWR of 10,000 lb or less, Standard No. 125 would not apply.

Please note, however, that even if not covered by Standard No. 125, your warning device, as an item of "motor vehicle equipment," is subject to various provisions of 49 U.S.C. Chapter 301, "Motor Vehicle Safety." Manufacturers of motor vehicles and motor vehicle equipment must ensure that their products are free of safety-related defects. If a manufacturer or NHTSA should determine that the product contains a safety-related defect, the manufacturer would be responsible for notifying purchasers of the defective vehicle or item of motor vehicle equipment and remedying the problem free of charge. (This responsibility is borne by the vehicle manufacturer in cases in which your devices are installed on a new vehicle by or with the express authorization of that vehicle manufacturer.)

Finally, some states may regulate warning devices that vehicles with a 10,000 lb GVWR or less may or must use when the vehicle is stopped. Each state in which you sell your product can provide information on whether there are any requirements in that state for warning devices to be used with vehicles with a GVWR of 10,00 lb or less.

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

Sincerely,

Frank Seales, Jr.
Chief Counsel

Enclosure
ref:125#VSA102(4)
d.10/17/00

ID: 22132oneW--BusinessModelOneOnly

Mark A. Rosenbaum, Esq.
Stroock & Stroock & Lavan
180 Maiden Lane
New York, NY 10038-4982





Dear Mr. Rosenbaum:

This responds to your August 17, 2000, letter about Safety Standard No. 213, "Child Restraint Systems" (49 CFR 571.213), as it relates to the services that your client, OneWarranty.com, Inc., would like to offer concerning owner registration of child restraint systems and other products. I apologize for the delay in responding. You ask three questions, which are addressed below.

Background

Standard No. 213

Federal Motor Vehicle Safety Standard No. 213, "Child Restraint Systems," establishes an owner registration program for child restraint systems. The National Highway Traffic Safety Administration (NHTSA) implemented the program to improve the effectiveness of manufacturer campaigns to recall child restraints that contain a safety-related defect or that fail to conform to Standard No. 213. By increasing the number of identified child restraint purchasers, the program increases the manufacturers' ability to inform owners of restraints about defects or noncompliances in those restraints.

Under the program, child restraint manufacturers are required to provide a registration form attached to each child restraint (S5.8). The registration form must conform in size, content and format to forms depicted in the standard (figures 9a and 9b). Each form must include a detachable postage-paid postcard which provides a space for the consumer to record his or her name and address, and must be preprinted with the restraint's model name or number and its date of manufacture. Except for information that distinguishes a particular restraint from other systems, no other information is permitted to appear on the postcard. (S5.8(c)). Child restraints are also required to be labeled with a statement urging the owner to register with the manufacturer (S5.5.2(m)). The statement also must be in the printed instructions for each child restraint (S5.6.1.7).

OneWarranty.com

On September 13, 2000, you and your client, Douglas Suliman, Jr. of OneWarranty.com, met with several representatives of the National Highway Traffic Safety Administration (NHTSA), including Jon White, Zack Fraser, Michael Huntley, and Deirdre Fujita of my staff. You explained that your client is an internet company that provides product registration services to consumers and manufacturers for a multitude of manufacturers and products. The company's services would be free to consumers.

Your client is considering entering into an arrangement with child restraint manufacturers to register owners of child restraint systems. Under the arrangement, the manufacturer's owner registration cards would be printed with information notifying purchasers that they may register the child restraint "through a mail-in card or via the internet" through OneWarranty.com's web-site. (Your first two questions relate to the permissibility of including this information on the card.) OneWarranty.com would be informed of a safety recall by the child restraint manufacturer. The owner's identity would be held by OneWarranty.com and withheld from the child restraint manufacturer, so that, as you state on page two of your letter, "the consumer can maintain its privacy from the manufacturer and from intrusive questionnaires traditionally associated with product registration...." The company would maintain the registration information for a minimum of six years. Under the model, OneWarranty.com contemplates notifying child restraint owners electronically of a recall, by e-mail. (Your third question relates to the permissibility of e-mail notifications of a recall.)

Your Questions

ID: 22133deddo

Mr. Daniel G. Deddo
Child-Seat Safety Products Co.
3600 Lime Street, Room 118
Riverside, CA 92501-2972





Dear Mr. Deddo:

This is in response to your letter asking for this agency's comments on your new product, the Car Seat Grabber and Child-Seat Safety Anchors. Specifically, you ask whether your product complies with Federal Motor Vehicle Safety Standard (FMVSS) No. 209, Seat Belt Assemblies, and Standard No. 210, Seat Belt Assembly Anchorages.

By way of background, 49 U.S.C. Chapter 301, Motor Vehicle Safety, authorizes the National Highway Traffic Safety Administration (NHTSA) to issue Federal motor vehicle safety standards (FMVSS) for new motor vehicles and new items of motor vehicle equipment. NHTSA, however, does not approve motor vehicles or motor vehicle equipment or pass on the compliance of a vehicle or item of equipment outside the context of an actual enforcement proceeding. Instead, our statute establishes 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 facts set forth in your letter.

You have developed a type of anchorage system for child restraints. The system is designed to be retrofitted to vehicles already on the road (as opposed to being installed in new vehicles by the vehicle's manufacturer or by an alterer). The anchorage system consists of three anchor points, each of which you call a "grabber." The "grabbers" consist of an O-ring type component attached to one end of a length of belt webbing. The other end of the webbing is bolted to the vehicle structure. Your sales brochure has the following description:

1. Top grabber installed at back lid of rear seat or on floor in SUV's [sport utility vehicles] or minivans, used to fasten upper child-seat tether strap.

2. Bottom grabbers ... are installed at the junction of the seat and back, to anchor child-seats and booster seats.

3. Bottom grabbers are attached to safety tested webbing and bracket, bolted to the car body pan with reinforced body washer....

In addition, you would bolt a tether strap to child restraints to attach to the "top grabber." You also provide a "nylon tether strap with hooks" that anchors to the lower "grabbers" on the vehicle seat. The nylon strap would be routed through the belt path molded into child restraints.

On March 5, 1999, NHTSA issued a safety standard for child restraint anchorage systems, Standard No. 225 (49 CFR '571.225). This standard requires all new passenger vehicles to have child restraint anchorage systems meeting specified strength, configuration, marking, and other requirements. A child restraint anchorage system consists of two lower anchorages and a tether anchorage. Passenger vehicles began phasing-in the lower anchorages in September 2000, and the tether anchorage in September 1999. Because it is a "vehicle" standard, Standard No. 225 applies to new motor vehicles and not to an "aftermarket" child restraint anchorage system, such as yours, that is sold for installation on used vehicles.

Nonetheless, we believe that the requirements of Standard No. 225 are necessary to ensure that child restraint anchorage systems provide at least a minimum level of safety. Moreover, anchorage systems with features different from those required by Standard No. 225 could lead to consumer confusion, and therefore have an adverse effect on motor vehicle safety. Therefore, although the standard does not apply to aftermarket systems, we urge you to assess whether your system is consistent with Standard No. 225's requirements, and to make appropriate changes.

While Standard No. 225 does not apply to your product, under NHTSA's enabling statute we consider your product to be an item of motor vehicle equipment. Manufacturers of motor vehicle equipment are responsible under our statute to ensure that their products are free of safety-related defects (49 U.S.C. ''30118-30221). In the event that you or we determine 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 example, if your child restraint anchorage system performs poorly in restraining a child restraint, we may determine that a safety-related defect exists, in which case we could require you to remedy the problem free of charge.

You should also be aware that our statute prohibits manufacturers, distributors, dealers, and motor vehicle repair businesses from knowingly making 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 FMVSS (49 U.S.C. '30122). If the installation of your product in a motor vehicle results in the vehicle no longer complying with any applicable FMVSS, then the manufacturer, distributor, dealer, or motor vehicle repair business that installed your product would have violated the make inoperative provision. The law permits NHTSA to impose a civil penalty of up to $5,000 for each violation of the make inoperative provision. Similarly, if the modification of child restraints (by bolting on tether straps) results in the restraints no longer meeting our safety standard for child restraints (Standard No. 213), any party listed in '30122 modifying the restraint would be subject to substantial civil penalties.

It is impossible for us to determine from the material you submitted whether your system would perform well in a crash. However, we would like to take this opportunity to raise the following issues about your design.

Strength and Durability

We do not know whether your system would be able to securely contain a child restraint system in a crash. It appears that the grabbers are simply bolted to the car body pan with washers, with little or no reinforcement of the vehicle structure. Without reinforcement, the vehicle seat and/or structure may not be able to withstand the crash forces imposed on them. Further, the webbing of the bottom grabbers are routed vertically from the vehicle floor pan through the vehicle seat "bight" (the intersection of the seat cushion and the seat back), then lie along the top of the vehicle cushion where they attach to the child restraint. In a frontal crash, the forward motion of the child restraint could cause the bottom grabbers to straighten in the forward direction, which could displace the bottom seat cushion and result in excessive forward translation of the child restraint and excessive excursion of a child occupant's head and chest. In addition, the bottom grabbers are positioned several inches forward of the seat bight. Forward-mounted anchors can allow excessive forward displacement of a child restraint in a frontal collision, especially if the child restraint is not secured at the top tether anchor, which can increase the likelihood of head impacts with structures forward of the child. We strongly urge you to fully assess whether your anchorage system will adequately retain a child restraint and child in a crash, particularly since parents and caregivers might use the Grabber system in lieu of the vehicle's belts.

You specifically asked about Standard Nos. 209 and 210. These standards do not apply to your product. Standard No. 209 applies to straps, webbing or similar devices designed to secure a person in a motor vehicle in order to mitigate the results of any accident. However, we recommend that your product meet the standard's specifications, since they increase the likelihood that straps, webbing and buckles perform satisfactorily throughout the life of a vehicle. Standard No. 210 applies to seat belt anchorages on new motor vehicles.

Drilling Holes in Child Restraints

In your letter, you ask whether you are violating any Federal motor vehicle safety standards by drilling holes in child restraints to attach the top anchors of your product. If by drilling holes a motor vehicle manufacturer, distributor, dealer, or repair business affects a child restraint system such that it can no longer meet all of the requirements of Standard No. 213, a violation of the make inoperative provision, discussed above, would result. In addition, the equipment you provide and the installation of it on the child restraint must not result in safety-related defects.

Consumer Information

I note that in your sales brochure advertising the Car Seat Grabber and Child-Seat Safety Anchors you state that your product is "in conformity with NHTSA & FMSS CR 49, 571 and 596, New Federal Motor Standards." Since no Federal motor vehicle safety standard applies to your product, you cannot claim--in fact, you are prohibited from claiming--that your product complies with Federal standards. Thus, you must remove this statement and any similar statements from any materials advertising the Car Seat Grabber and Child-Seat Safety Anchors.

The brochure also states on its front cover: "A recent new ruling by the National Highway Traffic Safety Administration requires that child-seats and booster seats in all passenger vehicles must be restrained with the [sic] new 3-point safety anchors when traveling...." This statement is not correct. NHTSA regulates the manufacture and sale of vehicles and equipment, but not the use of safety systems. Pursuant to the phase-in in Standard No. 225, we are requiring new passenger vehicles to have a specific, universal child restraint anchorage system, one different from yours. Your statement, implying that NHTSA requires the use of your system, is therefore erroneous and misleading. Furthermore, Standard No. 213 excludes belt-positioning booster seats from the requirement to have components that fasten to the child restraint anchorage system. For all these reasons, your statement need to be corrected.

Front Seat Installation

You note in your letter that you intend to install your anchorage system in the front seat of vehicles, "primarily in pickup trucks." We have strong concerns about installing child restraint anchorage systems at seating positions where an air bag is present, due to the hazards associated with deploying air bags, especially for infants in a rear-facing child restraint. The presence of a child restraint anchorage system at the front seating position could mistakenly imply to consumers that the seating position is suitable for a child restraint. For this reason, Standard No. 225 prohibits installation of a child restraint anchorage system at a seating position with an air bag in new vehicles. We urge you to recommend that parents put children in the rear seat, even in vehicles without an air bag. If a rear seat is unavailable, as in a pickup truck, the owner should consider installing an air bag on-off switch. Information about the switches can be obtained from our website at www.nhtsa.dot.gov

We believe that the message that children belong in the rear seat cannot be overemphasized, especially for infants in rear-facing child seats.

State Laws and Private Liability

Individual States are responsible for regulating the use of motor vehicles, and a State may have its own requirements with regard to the type of child restraint anchorage systems a vehicle must have to be registered or operated in that State. Moreover, compliance with our regulations and standards does not insulate you from civil liability. You might wish to consult with a private attorney about such civil liability issues.

I have enclosed an information sheet for new manufacturers for your information. If you have any further questions, please contact Deirdre Fujita in my office at (202) 366-2992.

Sincerely,

John Womack
Acting Chief Counsel

Enclosure
ref:213#225
d.8/22/01