ID: 12669.ztv

The Honorable Bill Baker
U.S. House of Representatives
1801 N. California Boulevard
Suite 103
Walnut Creek, CA 94956

Dear Mr. Baker:

I am replying to your letter of October 22, 1996, addressed to Marilynne Jacobs, Director, Office of Vehicle Safety Compliance, on behalf of your constituent, Duane Doyle of San Leandro. You have asked for our views on his letter to you of October 17, 1996, a copy of which you enclosed.

Mr. Doyle bought a 1996 Rover Mini Cooper in Switzerland, and when he attempted to import it, he was informed by the U.S. Customs Service at the Port of Oakland that the vehicle would have to be brought into compliance with the Federal Motor Vehicle Safety Standards which this agency (NHTSA) administers, as well as Federal emissions requirements that are administered by the Environmental Protection Agency. Mr. Doyle offered to retrofit the car with a roll bar and racing safety harness and was told by this agency that this was insufficient to fulfil the requirements of this agency. He then offered to store the car on his property and not drive it on the public roads, and was informed that this, also, was not acceptable. He now seeks to import it under 49 U.S.C. 30112(b), which he interprets as follows: "the prohibitions on importing noncomplying motor vehicles and equipment do not apply to a person that had no reason to know, despite exercising reasonable care that a motor vehicle did not comply with applicable motor vehicle safety standards." The tone of his letter indicates that he feels he is being singled out unfairly by NHTSA.

Although the legal background may have been discussed in other correspondence between Mr. Doyle and this agency, this is the first time that the Office of Chief Counsel has been afforded an opportunity to discuss this matter. There are several provisions of law applicable to Mr. Doyle's situation. First, there has been a prohibition in effect for almost 29 years, since January 1, 1968 (15 U.S.C. 1397(a)(1)(A), recodified as 49 U.S.C. 30112(a)), against importing motor vehicles into the United States unless they conform, or are brought into conformance, with all applicable Federal motor vehicle safety standards. Furthermore, under the Imported Vehicle Safety Compliance Act of 1988 (codified as 49 U.S.C. 30141 et seq.), since January 31, 1990, for almost 7 years it has not been possible to import a noncomplying motor vehicle unless this agency has determined that the vehicle is capable of being converted to comply with all applicable Federal motor vehicle safety standards. The agency has not made such a determination with respect to the 1996 Rover Mini Cooper.

Under 49 U.S.C. 30142, Mr. Doyle may import the Mini Cooper after demonstrating that he has a contract with a "registered importer" to bring the Mini Cooper into full compliance with the Federal safety standards, and that the agency has made a determination under section 30141(a)(1) (B) that "the safety features of the vehicle comply with or are capable of being altered to comply with those standards based on destructive test information or other evidence [NHTSA] decides is adequate." NHTSA makes the determination after the public has commented upon an application filed by the "registered importer", which is an entity that NHTSA has recognized as capable of performing standards compliance work. If Mr. Doyle is interested in pursuing this avenue of approach, the Office of Vehicle Safety Compliance will provide him, upon his request, with a list of "registered importers" in his area. This is the procedure that must be followed by persons seeking permanent importation of vehicles for their own use. The fact that the Mini meets the safety standards of other countries is an argument that may be made in the application.

The modifications which Mr. Doyle offered to make, while addressing some aspects of occupant protection, were insufficient to demonstrate that the Mini would comply afterwards with all the safety standards that apply to it. We note also Mr. Doyle's offer to restrict the Mini's use to private property. The problem with this offer is that it is not binding on a subsequent purchaser of the car, and we have no authority to require a person other than the importer to bring a car into compliance. Thus, an importer must bring into compliance a motor vehicle that was originally manufactured for on-road use even if (s)he intends to use it on private property.

As noted above, Mr. Doyle seeks an exemption based upon his interpretation of Section. 30112(b). Section 30112(a) contains the basic prohibition against, among other things, importing a motor vehicle unless it complies with the Federal motor vehicle safety standards and bears the manufacturer's certification of compliance. Section 30112(b) sets forth nine circumstances in which section 30112(a) does not apply, that is to say, under which a violation will be considered not to have occurred (and for which a civil penalty may not be imposed). One of these exceptions is if a person can establish "that the person had no reason to know, despite exercising reasonable care, that a motor vehicle . . . does not comply with applicable [U.S. Federal] motor vehicle safety standards. . . ."

Mr. Doyle has not violated Section 30112(a). He has not completed importation of the Mini into the United States; indeed, he was prevented from doing so by the U.S. Customs Service because it did not comply with the standards. Since he has not imported a noncomplying vehicle, he has not violated Section 30112(a) and therefore Section 30112(b)(2) does not apply. He cannot now import the Mini using Section 30112(b)(2) as a defense because he now knows that the Mini fails to comply. The exception that applies to Mr. Doyle is that set out by Section 30112(b)(5) -- "a motor vehicle imported for personal use by an individual who receives an exemption under section 30142 of this title", that is, importation of the Mini through the auspices of a "registered importer" who will conform the vehicle.

Taylor Vinson of this Office will be pleased to answer such further questions as may occur (202-366-5263).

Sincerely,

John Womack

Acting Chief Counsel

ref:591

d:11/15/96

ID: 12730a.jeg

Mr. Chet K. Wilson
Executive Consultant
AEI Consulting
38345 Ten Mile Road
Suite 230
Farmington Hills, MI 48335

Dear Mr. Wilson:

This responds to your letter concerning regulations issued under the American Automobile Labeling Act. I apologize for the delay in our response. You ask about the following factual situation:

An outside supplier, in preparing a response to a request from an unrelated motor vehicle manufacturer, pursuant to 49 CFR 583.10, determined the following percentages of foreign and domestic content contained in the equipment (which is not an engine or transmission) supplied directly to the manufacturer:

You ask three questions under these facts, which are addressed below.

Question 1. Because the combined U.S./Canadian content is less than 70% in the equipment, the supplier must determine and report the country of origin. In determining the country of origin, are the Canadian and U.S. content percentages to be combined or treated separately?

The Canadian and U.S. content percentages are combined. Section 583.10(a)(5) specifies that, for equipment which has less than 70 percent of its value added in the United States and Canada, an outside supplier is to provide "the country of origin of the equipment, determined under 583.7(c)." Section 583.7(c) specifies that the U.S. and Canada are treated together in making this determination.

Question 2. If Canadian and U.S. are to be combined, how is the supplier to report the country of origin?

The supplier should specify the country of origin as U.S./Canada, but must do so in a manner that makes it clear this determination is being made pursuant to 583.10(a)(5), and not 583.10(a)(4). The country of origin would not be "U.S./Canada" under the latter section because 70 percent of more of its value was not added in the U.S. and/or Canada.

Question 3. Does the supplier have to report the percentage of content or just the name of the country of origin?

Section 583.10(a)(5) only requires the supplier to report the name of the country of origin.

I hope this information is helpful. If you have further questions, please feel free to call Edward Glancy of my staff at (202) 366-2992.

Sincerely,
John Womack
Acting Chief Counsel
ref:583
d.7/25/97

ID: 003090Evenflo_SpanII_labels

Mr. Randy Kiser
Director of Product Safety, Research & Development
Evenflo Company, Inc.
707 Crossroads Court
Vandalia, OH 45377

Dear Mr. Kiser:

This responds to your letter concerning questions you had about the possibility of Evenflo voluntarily providing child restraint labels in Spanish. You explain that Evenflo currently provides printed instructions in Spanish free of charge upon request, but has not provided bi-lingual labels for the child restraint itself. You are considering changing the latter situation by placing a label in Spanish on your child restraints informing consumers that, upon request, Evenflo will send them Spanish labels for them to adhere to their restraints. The "duplicate set of labels" would fully and accurately translate the information required of the English labels.

You ask whether three "options" related to this initiative comport with Federal Motor Vehicle Safety Standard (FMVSS) No. 213, Child restraint systems. The first option involves telling consumers to affix the labels next to the English labels. The second option involves instructing consumers to affix the Spanish labels in places where they might not be visible when the child restraint is installed. The third option involves instructing consumers to adhere the Spanish language labels over the English labels.

The requirement under Federal law to manufacture and sell products that meet all applicable FMVSSs does not apply to the sale of a vehicle or item of equipment after the first purchase of the item in good faith other than for resale ("first retail sale"). Your options relate to the modification of child restraints by owners after the first retail sale. Because used child restraints are involved, FMVSS No. 213 generally does not limit where aftermarket labels are affixed.

However, manufacturers are limited in the statements they may make on the labeling of a new child restraint or in the child restraint owners manual. S5.5 of the standard states: "Any labels or written instructions provided in addition to those required by [FMVSS No. 213] shall not obscure or confuse the meaning of the required

information or be otherwise misleading to the consumer. "Affixing Spanish labels over the required English labels obscures the English labeling. We interpret the term "shall not obscure or confuse" in S5.5 as including labels or instructions that result in the obscuring of the required information by the consumer. Accordingly, Evenflo cannot include an instruction in the labeling or instructions to paste the Spanish labels over the English labeling. Obscuring the information could pose problems for second-hand owners who do not understand Spanish.

If you have further questions, please contact Deirdre Fujita of my staff at (202) 366-2992.

Sincerely,

Jacqueline Glassman
Chief Counsel

ref:213
d.8/20/04

ID: 0031

Mr. R. H. Goble
President, Goble Enterprises
P.O. Box 423
Lake Mary, FL 32795

Dear Mr. Goble:

This is in reply to your letter of May 16, 1994, with respect to two motor vehicle lighting systems that you have developed, and your question about the regulations that may apply to each.

As we understand the first system, when the brake pedal is applied, the front turn signal lamps and front side marker lamps are simultaneously activated to indicate to observers from the front and side that the vehicle is braking. It appears that this activation is in a steady burning state which continues unless and until the turn signal lamps are activated in either the flashing turn signal or hazard warning signal more. You have also developed a "Wheel Well lighting system", which "will provide light indicators all around (brake, clearance, turn signal, emergency flashers)" through amber lamps mounted in the well at the top of each front and rear wheel opening. As we understand this system, these supplementary lamps will be activated simultaneously when the four named lamp systems are activated.

The regulation governing the lighting on new motor vehicles (i.e., requirements that must be met when a new vehicle is delivered to its first purchaser) is Federal Motor Vehicle Safety Standard No. 108. With respect to optional equipment such as your systems, Standard No. 108 allows each, provided that each does not impair the effectiveness of the lighting equipment required by the standard. The law governing the lighting on motor vehicles after their first sale is the National Traffic and Motor Vehicle Safety Act. In essence, it allows installation of each of your systems by a manufacturer, dealer, distributor, or motor vehicle repair business as long as the system does not "knowingly render inoperative, in whole or part, any device or element of design installed in accordance with" Standard No. 108.

We regard any supplemental lighting system with the potential of creating confusion in the eye of the beholder as one that impairs the effectiveness of other lamps on the vehicle, and

one that renders inoperative, in part at least, other lamps by compromising their effectiveness. This is especially true when existing vehicle lamps are used to convey messages that are different from the purpose of those lamps. We believe it especially important to motor vehicle safety that signal lamps convey their message unmistakably and without ambiguity. We see no real problem that might be occasioned by the activation of the front turn signal lamps in a steady burning mode, although this might cause initial puzzlement in the eye of an oncoming driver unfamiliar with the system. While confusion is more likely when the turn signal is operating on one side while the other side remains steady burning, we believe that the flashing of the turn signal will continue to be interpreted as an intention to turn. Of course, when the hazard warning system is activated and completely overrides the steady burning front stop lamp, there would be no confusion as to signal message. Therefore, in our opinion, Federal law permits use of your front stop lamp system.

Your second system does not operate through existing vehicle lamps but consists of additional lamps mounted in the wheel wells. These lamps would appear not to have the potential of confusion since they supplement existing lamps and operate in conjunction with them to convey the same message. Thus, Federal law, in our view, does not preclude use of your second system either.

However, even if a supplementary lighting system is permissible under Federal law, it is subject to regulation by any State in which it is operated. We are not able to advise you with respect to State law, and suggest that you write for an opinion to the American Association of Motor Vehicle Administrators, 4600 Wilson Boulevard, Arlington, Va. 22203.

Sincerely,

John Womack Acting Chief Counsel ref:108#VSA d:6/29/94

ID: 003258drn

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

Dear Mr. Turner:

This responds to your letter concerning Federal Motor Vehicle Safety Standard (FMVSS) No. 221, School Bus Body Joint Strength. You wish to confirm that portions of joints outside of the passenger compartment or that otherwise do not "enclose bus occupant space" are excluded from FMVSS No. 221. In particular, you ask about joints that are below the level of the floor line.

You described the portions of joints at issue as follows:

the top edge of the outside side panels on Blue Bird school buses start at the bottom of the side window openings and [the panels] continue down the side of the bus body, terminating with a bottom edge approximately 18 inches below the floor line. There are vertical joints between these panels and between these panels and other body components such as roof bows. The upper portions of these vertical joints are above the floor line while the lower portion of the same joint is below the floor line. [I]t is our understanding that the vertical joints between these side panels that lie above the floor line are subject to the joint strength requirements of FMVSS 221 (because the portions of the joined panels above the floor line serve to "enclose bus occupant space") while the portions of those joints below the floor line are excluded from the requirements (because the portions of the joined panels below the floor line do not "enclose bus occupant space").

You cite our April 26, 1976, and August 20, 1981, letters to Blue Bird and conclude from these letters that all joints below the "floor level" are exempt from FMVSS No. 221.

Generally speaking, joints below the floor line are excluded from FMVSS No. 221. However, in a letter of January 14, 1991, to Blue Bird, the agency clarified that the April 26, 1976, letter excluding joints below the floor line was predicated on the assumption that there is a body panel (i.e., a floor panel) at floor level that encloses the occupant space, and that is located between the occupant space and that portion of the bus excluded from the standard.Thus, the agency did not agree with Blue Birds view that stepwell-to-floor panel joints were below the floor level and excluded from FMVSS No. 221s joint strength requirements.

Accordingly, while we concur generally that joints below the floor line are excluded from FMVSS No. 221, we believe that there could be misinterpretation by a manufacturer as to whether a particular joint is considered such a joint. For example, we have enclosed two photographs on which we have superimposed the floor line on the bus exterior. The section of the circled joint above the line is subject to FMVSS No. 221; the section of the joint below the line is not. While we cannot provide you with a general response to your question, we will review more detailed information about a specific joint that might fall below the floor line of the bus to determine the applicability of FMVSS No. 221.

If you have any further questions, please feel free to contact Dorothy Nakama of my staff at this address or at (202) 366-2992. Should you choose to submit more detailed information for review, please submit it to Ms. Nakama.

Sincerely,

Jacqueline Glassman
Chief Counsel

Enclosures
ref:221
d.8/13/03

ID: 003418drn

Mr. Matthew Sausaman
Director of Engineering
Turtle Top
67819 State Road 15
New Paris, IN 46553

Dear Mr. Sausaman:

This responds to your letter asking about the applicability of Federal Motor Vehicle Safety Standard (FMVSS) No. 221, School Bus Body Joint Strength (49 CFR 571.221), to "multifunction school activity buses" (MFSAB) that your company plans to manufacture. You currently manufacture buses for commercial and transit applications. You state that "the construction of our vehicle includes no seams in the passenger area; hence we are having trouble determining test applicability."

By way of background, the National Highway Traffic Safety Administration (NHTSA) does not approve new motor vehicles or motor vehicle equipment. Each manufacturer is responsible for determining its vehicles compliance with all applicable FMVSSs and to certify that the vehicles meet all applicable FMVSSs.

On July 31, 2003, NHTSA published its final rule creating the MFSAB as a school bus category (68 FEDREG 44892, copy enclosed). The final rule takes effect on September 2, 2003, but manufacturers have the option of complying with the new rule as of July 31, 2003. MFSABs are school buses. Since FMVSS No. 221 applies to school buses, the standard applies to MFSABs.

In past interpretation letters, NHTSA has stated that the terms that establish the applicability of the requirements of FMVSS No. 221 to a particular section of a school bus body are defined in S5, Requirements (March 17, 1977, letter to Mr. Edmund C. Burnett). That section states:

S5.1 Except as provided in S5.2, each body panel joint, including small, curved, and complex joints, when tested in accordance with the procedure of S6, shall hold the body panel to the member to which it is joined when subjected to a force of 60 percent of the tensile strength of the weakest joined body panel determined pursuant to S6.2.

The terms "body panel" and "body panel joint" are defined at S4 of FMVSS No. 221. "Body panel" means a body component used on the exterior or interior surface to enclose the bus occupant space. "Body panel joint" means the area of contact or close proximity between the edges of a body panel and another body component, including but not limited to floor panels, and body panels made of composite materials such as plastic or plywood.

S4 and S5.1 together specify that if the edge of a surface body component (body panel) that encloses occupant space comes into contact with or is in close proximity to any other body panel or body component, the requirements of S5.1 apply, unless the body panel joint is excluded in S5.2.

You write that your vehicle "includes no seams in the passenger area." Very little information about the construction of the bus was provided. If your bus consisted of a single, seamless, body component and had no body panel joint whatsoever, there would be no body panel joint subject to FMVSS No. 221. However, this appears unlikely, since the specifications you enclosed of your component body construction refers to the welding of the roof to the sidewall frames, the rear body panel to the sidewall and floor frame, and the bonding of the exterior rear panel to the rear frame. That is to say, it appears that your vehicle could have an area of contact or close proximity between the edges of a body panel and another body component. If you identify a particular joint to us, we might be able to interpret whether the standard applies.

Please contact Dorothy Nakama of my staff at this address or at (202) 366-2992 if you have any questions.

Sincerely,

Jacqueline Glassman
Chief Counsel

ref:221
d:8/12/03

ID: 003453rbm--June 6

Stephan J. Speth, Director
Vehicle Compliance & Safety Affairs
DaimlerChrysler Corporation
800 Chrysler Drive CIMS 482-00-91
Auburn Hills, MI 48326-2757

Dear Mr. Speth:

This responds to your recent correspondence regarding the use of the Cosco Dream Ride car bed in conducting tests for the advanced air bag requirements of Federal Motor Vehicle Safety Standard No. 208, Occupant crash protection (FMVSS No. 208). S19 of FMVSS No. 208 requires that a manufacturer certifying compliance with the advanced air bag requirements for infants through automatic suppression certify that the passenger air bag will suppress when tested with any child restraint listed in Subparts A, B and C of Appendix A to the standard. The Cosco car bed is currently the only restraint listed in Subpart A of the appendix. You state in your letter that the car bed does not fit in the front passenger seat of one of your vehicles. You also state that this problem is likely to be encountered with other models of vehicles. Accordingly, you have requested an interpretation stating that compliance with S19 is not required for a child seat that cannot reasonably be installed at any seat track position without contacting the interior of the vehicle. We have determined that manufacturer certification is not required with respect to any child restraint that cannot be placed in the vehicle at any seating position without significant contact with the vehicle interior as described below.

On May 12, 2000, the National Highway Traffic Safety Administration (NHTSA) published a final rule requiring advanced air bags in all passenger cars, multi-purpose passenger vehicles, buses and light trucks with a gross vehicle weight rating (GVWR) of 8,500 lb or less starting September 1, 2003 (65 FR 30680). Several of the issues raised in your letter were discussed, either directly, or by analogy, in the preamble of that final rule.

In your letter, you explain that the Cosco car bed cannot be installed in a manner that allows for the proper placement of the car bed. In the full forward and full rearward seat track positions, the door of the vehicle cannot be closed. In the mid-track position, the door can be closed, but only by pushing the interior edge of the car bed against the

gear shift, such that you believe a driver would be unable to operate the vehicle. Even at this position, you note that the car bed must be placed at an angle that is inconsistent with the restraint manufacturer's installation instructions. Additionally, because of the placement of the car bed against the gear shift, the occupant classification system detects an empty seat and the telltale indicator does not illuminate. Because the occupant classification system defaults to air bag suppression if the system reads the seat as empty, the air bag would suppress if the car bed were placed in the seat. You go on to state that the Cosco car bed is no longer in production and that no other car beds are currently distributed for sale in the U.S. market. [1]

The test procedures for S19 are contained in S20 of the standard. Under that provision, if a child restraint contacts the vehicle interior, the vehicle seat is moved rearward until there is no contact. At that point, the vehicle manufacturer must certify compliance with the standard. There is no corollary language in S22 or S24, which provide the test procedures for the three-year-old and six-year-old compliance options.

The discussion in the preamble related to the "no contact" language of S20.1.2 is limited to contact with a rear facing child restraint and the vehicle dashboard. (See discussion at 65 FR 30711, 30724.) The language was included because we had found in our testing that when some convertible child restraints were tested in their rear facing position with the vehicle seat in a full forward position, the child restraint was either severely tilted or entirely lifted off the seat of some vehicles. We stated that we did not believe parents or caregivers were likely to transport an infant in such a position. Rather, it was our opinion that the vehicle seat would be moved back to accommodate the child restraint. The agency did not anticipate a situation where the width of the child restraint would prevent placement of the restraint without contacting the vehicle interior. Likewise, we did not contemplate a situation where no seat track position could be found that would allow the restraint to be placed in the vehicle without contacting the vehicle interior.

We will not conduct compliance testing for, and manufacturers will not be required to certify compliance with, S19 when the child restraint's width results in so significant a level of contact with the vehicle interior that one would not reasonably expect a parent or caregiver to place the restraint in the front seat. We will consider the following factors in determining whether to do so: first, whether the placement of the restraint in the seat prevents one from closing the door of the vehicle; second, whether the placement of the restraint prevents the driver from operating the vehicle in a reasonable manner, e.g., because of interference between the restraint and either the gear shift or parking brake; and third, whether the restraint is rotated so that it deviates more than 30 degrees from a longitudinal vertical plane. In deciding to drop a proposed test condition in which the restraint was placed on the seat at a 45-degree angle with that plane, we noted that it was unreasonable to assume that parents would actually place a restraint so markedly out of position. (See discussion at 65 FR 30710-11.)

Based on the information provided in your letter, it appears that at least two of these factors may be applicable. The inability to close the car door in the full forward and full rearward seat track positions would obviously preclude the use of the car bed in those positions. Likewise, depending on the amount of interference, the gear shift interference could prevent a driver from operating the vehicle with the car bed in the mid-track position. We note that if other seat positions permit reasonable placement of the child restraint, then compliance testing would be performed at these seat positions.

At this time, we are not deciding that limited contact between a child restraint in Appendix A and the vehicle interior, other than contact between a rear facing child restraint and the dashboard or console, would relieve a vehicle manufacturer from its certification responsibilities with respect to the advanced air bag requirements. Parents or caregivers may use a restraint in the front seat even though there is some contact with the vehicle interior. In those instances, it is appropriate to require manufacturers to certify compliance with the standard using that restraint, and we intend to conduct compliance testing even though there may be some degree of contact.

I hope this letter addresses your concerns. Please feel free to contact Rebecca MacPherson of my staff at (202) 366-2992 should you have any additional questions.

Sincerely,

Jacqueline Glassman
Chief Counsel

ref:208
d.6/9/03





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[1] Cosco has informed NHTSA that the Dream Ride car bed has not been discontinued. Rather, it is manufactured only when someone places an order for it.

ID: 00372Villeneuvedsp

Mr. Pierre Villeneuve
A. Girardin Inc.
Trans Canada Highway
Drummondville (Qubec) J2B 6V4

Dear Mr. Villeneuve:

This responds to your January 6, 2003, e-mail and subsequent telephone conversation with Deirdre Fujita of my staff, asking about Federal Motor Vehicle Safety Standard (FMVSS) No. 225, "Child Restraint Anchorage Systems" (49 CFR 571.225). You ask several questions about a bus that has wheelchair securement devices and only one 34-inch wide forward-facing bench seat in the passenger compartment. You stated in your February 27, 2003 telephone call that the bench seat has two designated seating positions.

Number of Anchorage Systems

Your first question asks how many child restraint anchorage systems must be installed in the vehicle. Assuming the vehicle is subject to FMVSS No. 225 [1] , the answer is two if there are two forward-facing rear designated seating positions on your vehicle. S4.4(b) of FMVSS No. 225 specifies that, in vehicles with not more than two forward-facing rear designated seating positions, a child restraint anchorage system must be installed at each position. Accordingly, an anchorage system must be installed at each of the two forward-facing rear designated seating positions on your vehicle.

Location in Vehicle

Your second question asks whether the bench seat with the anchorage system must be positioned immediately behind the driver, or whether it can be installed in the rear of the bus. FMVSS No. 225 does not specify where a seating position must be located. Instead, the standard specifies locations for child restraint anchorage systems and tether anchorages based on the seating configuration of a particular vehicle. In the case of the subject vehicle, regardless of whether the seat is located directly behind the drivers seat or located at the rear of the vehicle, the seat is the "second row of seating" and therefore two child restraint anchorage systems must be installed on this two-person seat.

If the vehicle were installed with three or more forward-facing rear designated seating positions, then the requirements of S4.4(a) would apply. The requirements for location of child restraint anchorage systems and tether anchorages are determined by considering the number of designated seating positions, the seating row number (e.g., second, third, etc.) and the outboard or non-outboard location of forward-facing designated seating positions. The proximity of seating positions to the drivers seat is not a determining factor apart from the above criteria.

Flip Seat

Your final question asks whether FMVSS No. 225 requires the installation of a child restraint anchorage system in a "flip seat." The key to answering this question is whether the seat contains designated seating positions. "Designated seating position" is defined in the National Highway Traffic Safety Administrations regulations at 49 CFR 571.3 as:

Any plan view location capable of accommodating a person at least as large as a 5^th percentile adult female, if the overall seat configuration and design and vehicle design is such that the position is likely to be used as a seating position while the vehicle is in motion, except for auxiliary seating accommodations such as temporary or folding jump seats. (Emphasis added.)

The agency does not define auxiliary seating accommodations, but has addressed the issue in a number of interpretation letters. The agency has stated that the term "folding jump seat" applies "solely to the type of seat that is used from time to time in such vehicles as taxi cabs and limousines to accommodate, for short periods of time, an excess number of passengers. The usual form of jump seat is a seat that folds down from the rear of the front passenger seat."See April 28, 1971 letter to Mr. Keitaro Nakajima.

The fact that the seat is a flip seat is not determinative as to whether it is excluded from being a designated seating position. We understand that Girardin would installing either a Freedman Feather Weight AM or BV Foldaway. This seat is available from the manufacturer as a one- or two-passenger seat. That is, it does not appear that the seat is

just an auxiliary position. Without information indicating that the flip seats are not designated seating positions, we cannot concur that they would be excluded from having child restraint anchorage systems.

If you have further questions, please contact Dee Fujita at (202) 366-2992.

Sincerely,

Jacqueline Glassman
Chief Counsel

ref:225
d.4/29/03





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[1] Note that a vehicle is subject to the standard depending in part on its classification. In determining a vehicles classification, a wheelchair restraint position counts as either one or four designated seating positions depending on whether the vehicle is intended to be used for pupil transportation. See definition of "designated seating position" in 49 CFR 571.3.

ID: 003788_noggin_nest

Ms. Liz Franqui
The Boppy Company
560 Golden Ridge Rd., Suite 150
Golden, CO 80401

Dear Ms. Franqui:

This responds to your letter about a product you market called the Noggin Nest. According to your letter, the Noggin Nest is placed behind a babys head "to prevent Flat Head Syndrome." You currently market the product for use in a stroller, car seat [sic], bouncer or swing and would like to market the product for use in motor vehicle child restraint systems. You ask what regulations apply to the Noggin Nest and whether the product can be used in a child restraint without hindering the restraints performance in a crash.

By way of background, the National Highway Traffic Safety Administration (NHTSA) has the authority to issue Federal motor vehicle safety standards for new motor vehicles and new items of motor vehicle equipment. Section 30102(a)(7) of our statute (40 U.S.C. Chapter 301; "the Safety Act") defines the term "motor vehicle equipment," in pertinent part, as:

(A) any system, part, or component of a motor vehicle as originally manufactured; (B) [or] any similar part or component manufactured or sold for replacement or improvement of a system, part, or component, or as any accessory or addition to a motor vehicle. [Emphasis added.]

NHTSA has two criteria in determining whether a device is an "accessory." The first criterion is whether a substantial portion of the expected use of the item is related to the operation or maintenance of motor vehicles. The second is whether the product is purchased or otherwise acquired, and principally used, by ordinary users of motor vehicles. We believe that the Noggin Nest would meet both of these criteria when you start marketing it for use in child restraint systems. A substantial portion of the expected use of the product would be with respect to use with child restraints. The product would be purchased and principally used by ordinary users of motor vehicles.

NHTSA does not approve or certify any vehicles or items of equipment. Instead, Congress has established a "self-certification" process under which each manufacturer is responsible for certifying that its products meet all applicable safety standards.

There currently are no Federal motor vehicle safety standards (FMVSSs) that directly apply to the Noggin Nest. Our standard for "child restraint systems," FMVSS No. 213, applies to "any device except Type I or Type II seat belts, designed for use in a motor vehicle or aircraft to restrain, seat, or position children who weigh 65 pounds or less." The standard does not apply to accessory items, such as a pad that is used with a child restraint system.

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

In addition, while it is unlikely that the Noggin Nest would be installed by a motor vehicle manufacturer, distributor, dealer or repair business, 49 U.S.C. 30122 prohibits those businesses from installing the device if the installation "makes inoperative" compliance with any safety standard. Our FMVSSs require specific levels of performance for materials used in the occupant compartment of motor vehicles.

You state in your letter that you want to ensure that the Noggin Nest would not affect compliance with FMVSS No. 213 or otherwise interfere with the performance of the child restraint system and ask for guidance in this area. NHTSA is unable to ascertain whether and to what degree your product would affect the performance of a child restraint. However, we make the following observations for your information. The photographs you enclosed show that the product has slots through which the child restraints belts are routed. Depending on their design, some slots could restrict the belts' ability to perform in a crash. Further, padding inserted between the child restraint and the child passenger could compress in a crash and introduce slack into the belt system. In addition, FMVSS No. 213 specifies flammability resistance requirements for child restraints. Any person listed in 30122 who installs a Noggin Nest must not make inoperative the flammability resistance of the child restraint system.

The prohibition of 30122 does not apply to individual owners who install equipment in their own vehicles. Thus, individual owners may install any item of motor vehicle equipment regardless of its effect on compliance with Federal motor vehicle safety standards. However, NHTSA encourages vehicle owners not to degrade the safety of their vehicles or motor vehicle equipment.

State or local jurisdictions might have their own requirements for products such as the Noggin Nest. For information about those requirements, you should contact the Department of Motor Vehicles in any state in which the equipment will be sold or used.

If you have any other questions, please contact Deirdre Fujita of my staff at this address or by phone at (202) 366-2992.

Sincerely,

Jacqueline Glassman
Chief Counsel

ref:213
d.7/19/04

ID: 003832rbm

Mr. William E. Lawler
IMMI
18881 U.S. 31 North
P.O. Box 408
Westfield, IN 46074-0408

Dear Mr. Lawler:

This letter responds to your request for interpretation of the labeling requirements of S4.5 of Federal Motor Vehicle Safety Standard No. 208, Occupant crash protection (FMVSS No. 208) as they relate to an inflatable tubular structure installed inside a fire truck. The fire truck would be within a range of 30,000-70,000 lb gross vehicle weight rating (GVWR). According to your letter, the inflatable device is designed and installed to prevent the occupant's head from striking the side window or door frame during a rollover. The inflatable structure you describe is not subject to the labeling requirements of FMVSS No. 208 or any other safety standards.

S4.5.1(b)(1) of FMVSS No. 208 states that "except as otherwise provided in S4.5.1(b)(2), ^[1] each vehicle shall have a label permanently affixed to either side of the sun visor, at the manufacturer's option, at each front outboard seating position that is equipped with an inflatable restraint." The subparagraph then goes on to state what the required label must look like. The label requirements of S4.5.1(b)(1) are limited to vehicles with the type of inflatable restraint system defined in S4.1.5.1(b). That paragraph defines an inflatable restraint system as an air bag that is activated in a crash.

S4.1.5 applies to all passenger cars manufactured on or after September 1, 1996. A corollary provision, S4.2.6, applies to trucks, buses, and multipurpose passenger vehicles with a GVWR of 8,500 pounds or less and an unloaded vehicle weight of 5,500 pounds or less manufactured on or after September 1, 1997. S4.1.5.3, which applies to passenger cars manufactured on or after September 1, 1997, and S4.2.6.2, which applies to those vehicles addressed by S4.2.6 manufactured on or after September 1, 1998, require that vehicles falling within their purview meet the frontal crash protection requirements of S5.1 by means of an inflatable restraint system, as defined in S4.1.5(b). These types of inflatable restraint systems are the only ones subject to the labeling requirements of S4.5.1(b)(1).

The inflatable tubular restraint described in your letter does not appear to be designed to provide protection in a frontal crash. Instead, your letter states that they are designed to provide head protection in a rollover crash. As such, they are not subject to FMVSS No. 208, including its labeling requirements. Moreover, as discussed in a March 23, 1999, interpretation to Lawrence F. Henneberger, Esq. (copy enclosed), the labeling requirements of FMVSS No. 208 apply only to passenger cars and to trucks, buses and multipurpose passenger vehicles with a GVWR of 8,500 lb or less and an unloaded vehicle weight of 5,500 lb or less. There are presently no other labeling requirements that would apply to these inflatable tubular structures.

I hope this letter addresses your concerns. Please feel free to contact Rebecca MacPherson of my staff at (202) 366-2992 should you have any additional questions.

Sincerely,

Jacqueline Glassman
Chief Counsel

Enclosure
ref:208
d.7/7/03





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[1] S4.5.1(b)(2) sets forth the sun visor labeling requirements for vehicles certified to the advanced air bag requirements adopted by NHTSA on May 12, 2000 (65 FR 30680). Those requirements are not applicable to the vehicle in question.