ID: nht91-7.18

DATE: November 25, 1991

FROM: Don Weidman -- Manager, Special Projects, The Grote Manufacturing Company

TO: Paul Jackson Rice -- Chief Council, NHTSA

TITLE: None

ATTACHMT: Attached to letter dated 12-10-91 from Paul Jackson Rice to Don Weidman (A38; Std. 108)

TEXT:

On May 15, 1990 in the Federal Register Docket 88-17 Notice 2 a final rule was issued to become effective on December 1, 1990 requiring vehicles 80 inches or more in width to have stop and turn lamps with 75cm(2) of "effective projected luminous lens area" (EPLLA).

This occurred when NHTSA adopted SAE J-1395 April 85 for turn lamps and J-1398 May 85 for stop lamps.

Question is how will these new larger requirements affect the agriculture vehicles and implements when they are traveling on the highways?

Presently SAE J-137 June 89 covers lighting and marking of agriculture equipment on highways.

It requires a single tail light which meets J-585 and has no area requirements.

It requires at least two amber flashing warning lamps conforming to J-974. J-974 requires the lamp to have an effective projected illuminated area of 12 in(2).

Paragraph 3.14 of SAE J-137 states "when turn indicators are provided the amber flashing warning lamps shall be used as turn indicators".

What lighting and safety equipment standards must the agriculture equipment comply with to be legal when operating on the highways FMVSS-108 or SAE J-137?

If the warning lamp also serves as a turn signal lamp and the 12 in(2) effective projected illuminated lens area required in J-974 is measured by including all illuminated areas such as lens legs, and screw bosses will this be considered legal when operating on the highways?

We would appreciate knowing NHTSA's position on this issue.

We have one of our customers in the process of making a decision on their future purchases of lighting devices, therefore we would appreciate receiving your reply as soon as possible.

ID: nht91-7.19

DATE: November 26, 1991

FROM: H. Ino -- Manager, Quality Assurance, Diamond Star Motors

TO: Paul Jackson Rice -- Office of Chief Counsel

TITLE: NHTSA'S VIN Requirements (FMVSS 115)

ATTACHMT: Attached to letter dated 2/11/92 from Paul Jackson Rice to H. Ino (A39; VSA 108(b)(3); Std. 115)

TEXT:

In a telephone conversation on Friday, Nov. 22nd, Ms. Dorothy Nakama informed Diamond-Star Motors that FMVSS 115 is only applicable to vehicles manufactured for sale in the United States. She also recommended that in order to receive this in writing I must send a written request for an interpretation of FMVSS 115.

Please send an interpretation of FMVSS 115 which addresses to whom this standard is applicable and any exceptions that are applicable. Thank you very much.

ID: nht91-7.2

DATE: November 7, 1991

FROM: Paul Jackson Rice -- Chief Counsel, NHTSA

TO: Marc M. Baldwin -- Parker, McCay & Criscuolo

TITLE: None

ATTACHMT: Attached to letter dated 9-25-91 from Marc M. Baldwin to NHTSA

TEXT:

This responds to your September 25, 1991, letter in which you asked "the specific date when 2-point seatbelts were outlawed." Lap, or 2-point, belts have never been outlawed by this agency. Rather, 3-point, or lap/shoulder belts have been required at certain seating positions in certain vehicles. Lap belts are still permitted as the only occupant restraint at a seating position in all vehicles at some seating positions. Such seating positions include all seating positions that are not outboard seating positions and all seating positions that are not forward-facing. Your letter mentioned that you are specifically interested in this information for pending litigation regarding a 1984 passenger car convertible. Passenger car convertibles manufactured in 1984 were permitted to have lap belts installed at all seating positions. The following discussion should clarify NHTSA regulations regarding safety belts.

S4.1.2 of Standard No. 208 gives vehicle manufacturers a choice of three options for providing occupant crash protection in passenger cars. Option 1, set forth in S4.1.2.1, requires vehicle manufacturers to provide automatic protection at the front outboard seating positions, lap or lap/shoulder safety belts at all other seating positions, and either meet the lateral crash protection and rollover requirements by means of automatic protection systems or have manual safety belts at the front outboard seating positions such that those positions comply with the occupant protection requirements when occupants are protected by both the safety belts and the automatic protection. Option 2, set forth in S4.1.2.2, requires vehicle manufacturers to provide a lap or lap/shoulder safety belt at every seating position, have automatic protection for the front outboard seats, and have a warning system for the safety belts provided. Option 3, set forth in S4.1.2.3, requires the manufacturer to install lap or lap/shoulder safety belts at every seating position and to have a warning system for those belts.

Beginning on September 1, 1986, manufacturers were required to begin phasing-in the installation of automatic restraint systems, such as automatic belts and airbag systems, in their passenger cars. For example, S4.1.3.1 of Standard No. 208 required manufacturers to certify that at Bleast ten percent of their passenger cars manufactured on or after September 1, 1986, and before September 1, 1987, complied with S4.1.2.1. S4.1.3.2 required 25 percent of passenger cars manufactured on or after September 1, 1987, and before September 1, 1988, to comply with S4.1.2.1, and S4.1.3.3 required 40 percent of passenger cars manufactured on or after September 1, 1988, and before September 1, 1989, to comply with S4.1.2.1.

However, the agency temporarily excluded convertibles from the automatic restraint requirement during the phase-in period. This exclusion meant that convertibles did not have to be counted in the total passenger car production to determine the percentage of total passenger car production equipped with automatic restraints. Instead of automatic restraints, convertibles manufactured prior to September 1, 1989, were allowed to have either a manual lap or lap/shoulder belt at each seating position. All passenger cars, including convertibles, manufactured on or after September 1, 1989, must be certified as complying with S4.1.2.1.

There are also currently requirements for lap/shoulder belts in some rear seating positions in convertibles. Again, however, these requirements would not have applied to the 1984 convertible involved in your litigation. For your information, S4.1.4 of Standard No. 208 includes additional requirements for forward-facing rear outboard seating positions in passenger cars. All passenger cars, except convertibles, manufactured on or after December 11, 1989, were required to have lap/shoulder belts at these seating positions. All convertibles manufactured on or after September 1, 1991, are required to have lap/shoulder belts at these positions.

I hope this information is helpful. If you have any more questions about this issue, feel free to contact Mary Versailles of my office at this address or by telephone at (202) 366-2999.

ID: nht91-7.20

DATE: 11/26/91

FROM: KATHLEEN DEMETER -- ASSISTANT CHIEF COUNSEL FOR GENERAL LAW, NHTSA

TO: RICHARD LANGLAIS -- ENGINEER, PRELCO INC.

TITLE: NONE

ATTACHMT: ATTACHED TO LETTER DATED 12-7-92 FROM RICHARD LANGLAIS TO MARVIN SHAW (OCC 8067); ALSO ATTACHED TO LETTER DATED 2-23-93 FROM JOHN WOMACK TO RICHARD LANGLAIS (A40; STD. 205; PART S51)

TEXT: This is in response to your recent letter which requested information on obtaining a DOT number.

Before your company can begin importing automotive products into this country and prior to the assignment of a DOT identification number, you must provide an original letter of designation and acceptance by the designated party that complies with the provisions of 49 CFR @ 551.45. The required designation should be mailed to the Office of Chief Counsel, National Highway Traffic Safety Administration, Room 5219, 400 Seventh Street, SW, Washington, DC 20590, and must include the following information:

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 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 must be a permanent resident of the United States and may be an individual, a firm, or a U.S. corporation;

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

7. The signature of one with authority to appoint the agent. The signer's name and title should be clearly indicated beneath the signature.

I have enclosed a copy of 49 CFR @ 551.45, and a sample of a properly executed designation of agent. If you have any questions about the requirements for the appointment of an agent, please do not hesitate to contact me.

For you information, I have also enclosed a handout which provides additional information for new manufacturers of motor vehicles and motor vehicle equipment and a copy of federal regulations relevant to automotive glazing. If you have any questions concerning this information, please contact Mr. Clarke Harper, National Highway Traffic Safety Administration, Office of Vehicle Safety Standards, Room 5320, 400 Seventh Street, S.W., Washington, D.C. 20590.

ID: nht91-7.21

DATE: November 27, 1991

FROM: Paul Jackson Rice -- Chief Counsel, NHTSA

TO: None (Confidential)

TITLE: None

ATTACHMT: Attached to letter dated 9-9-91 to Paul Jackson Rice

TEXT:

This responds to your September 9, 1991 letter requesting an interpretation of Standards No. 101, Controls and Displays (49 CFR S571.101) and No. 208, Occupant Crash Protection (49 CFR S571.208). More specifically, you stated that your company is planning to incorporate seat belt pretensioners for the manual safety belts installed at front outboard seating positions in some future models. Your company intends to provide an onboard diagnostic system, including a malfunction display, to inform the driver about the functional status of the pretensioner system. You asked how Standards No. 101 and 208 would affect three alternative visual displays your company is contemplating. I am pleased to have this opportunity to explain our standards for you.

Before discussing the substantive issues raised in your letter, I would like to indicate how this letter is responding to your request that NHTSA not publicly release the identity of your company. NHTSA granted your request in a 1991 letter signed by Kathleen DeMeter, our Assistant Chief Counsel for General Law. To reflect this agency determination, we will make available to the public only the version of your letter to me that your company purged of all references to your company's identity and a version of this letter that is purged of all references to your identity.

Your letter set forth three alternative means of providing information about the functional status of the pretensioner system to the driver. Under Alternative #1, your company would use the existing seat belt telltale display field to provide information in the event of a pretensioner malfunction. The seat belt telltale light currently illuminates for a six second period following the ignition being switched on, regardless of whether the seat belt is fastened. In the event of a pretensioner malfunction, you propose to have the seat belt telltale light go off for a five second period, and then begin blinking a "pretensioner malfunction" message.

Alternative #2 would also combine the "fasten seat belt" and "pretensioner malfunction" messages in the same display. For this alternative, if belts are fastened prior to ignition, the seat belt telltale light would illuminate for a seven second period following the ignition being switched on. In the event of a pretensioner malfunction, a pretensioner malfunction message would begin flashing on and off. If the seat belts are not fastened prior to ignition, the seat belt telltale light would remain illuminated until the seat belts are fastened. In the event of a pretensioner system malfunction, a fasten seat belt/pretensioner malfunction message would begin flashing on and off. If the belts were later fastened, this would be replaced by a pretensioner malfunction message.

Alternative #3 would combine the pretensioner malfunction message with the readiness indicator for the air bag system, which is required by S4.5.2 of Standard No. 208. Under this alternative, the readiness indicator would flash steadily in the event of a malfunction in either the air bag system or the pretensioner. Only trained service technicians would be able to determine which of those two systems was experiencing the malfunction.

You then posed several questions about these alternatives. Underlying all of these questions is the issue of whether your company is required to provide an indication of a malfunction in the pretensioner system for manual belts. The only source for such a requirement would be S4.5.2 of Standard No. 208, which reads as follows:

An occupant protection system that deploys in the event of a crash shall have a monitoring system with a readiness indicator. The indicator shall monitor its own readiness and shall be clearly visible from the driver's designated seating position.

It is plain that pretensioners for manual belts are designed to activate in the event of a crash. However, the basic occupant protection system, the manual belts, are already deployed at that time, assuming they have been manually fastened. Further, if the belts have not been manually fastened, the pretensioners will not deploy the belts in the event of a crash. Thus, we do not view the pretensioners as "deploying" the belts but instead providing a final, albeit important, adjustment to belts which have already been deployed. Therefore, a manual belt system is not required to include a readiness indicator by S4.5.2, even if it includes pretensioners that activate in the event of a crash.

Further support for this position comes from reviewing the preambles for both the proposal and the final rule (35 FR 7187, May 7, 1970, and 35 FR 16927, November 3, 1970, respectively) adding the readiness indicator requirement to Standard No. 208. Those preambles make clear that NHTSA was focusing on newly developed occupant protection systems, some of which deployed in the event of a crash (e.g., air bags), and not on improvements and modifications of existing manual seat belt systems.

Since neither S4.5.2 of Standard No. 208 nor any other provision of the safety standards requires your company to provide a readiness indicator for the pretensioner in the manual belt systems, the decision to provide a readiness indicator for those pretensioners is voluntary. The issue then arises of whether and how the safety standards would affect the voluntarily provided readiness indicator for the pretensioners.

NHTSA has long said that systems or components installed IN ADDITION TO required safety systems are not required to comply with the provisions of the safety standards, provided that the additional systems or components do not destroy the ability of the required safety systems to comply with the safety standards. See, e.g., this office's December 1, 1986 letter to Mr. Francois Louis and this office's October 13, 1988 letter to Mr. Paul Utans. The question for each of your three alternatives, then, is whether the combination of the voluntarily provided pretensioner telltale with the

required seat belt telltale or air bag readiness indicator would result in the required equipment failing to comply with Standards No. 101 and/or 208.

Under Alternatives #1 and 2, your company would display the pretensioner telltale on common space with the seat belt telltale required by Standard No. 208. Alternative #1 would provide a seat belt telltale that appears to comply with S7.3(a)(2) of Standard No. 208, and Alternative #2 would provide a seat belt telltale that appears to comply with S7.3(a)(1) of Standard No. 208. Thus, your company's use of a common space to display a voluntary pretensioner malfunction message and the required seat belt telltale does not result in the seat belt telltales failing to comply with Standard No. 208.

The other safety standard that might affect your company's ability to use common space for the pretensioner malfunction message and the seat belt telltale is Standard No. 101. S5(a) of Standard No. 101 provides that "each passenger car, multipurpose passenger vehicle and truck or bus less than 10,000 pounds GVWR with any display listed in S5.1 or in column 1 of Table 2, shall meet the requirements of this standard for the location, identification and illumination of such ... display." Column 1 of Table 2 includes, among other things, the seat belt telltale. This means that your company's voluntary addition of a pretensioner readiness indicator cannot be done in a way that would make the seat belt telltale fail to comply with the requirements of Standard No. 101.

Since Alternatives #1 and 2 would combine the seat belt telltale with the pretensioner malfunction indicator, the most relevant provisions in Standard No. 101 are those in S5.4. S5.4 reads, in part, as follows: S5.4 A common space may be used to display messages from any sources, subject to the following requirements: (a) The telltales for the brake, high beam, and turn signal, and the safety belt telltale required by S4.5.3.3 of Standard No. 208 may not be shown on the common space.

* * * * *

(e) The safety belt telltale must be displayed and visible during the time specified in S7.3 of Standard No. 208

These provisions expressly permit the use of a common space to display messages, except that four telltales cannot be displayed on common space. The relevant one of the four telltales that cannot be displayed on common space is the safety belt telltale REQUIRED BY S4.5.3.3 OF STANDARD NO. 208. S4.5.3.3 sets forth special telltale requirements that must be met by automatic belts. The safety belt telltale for the manual belts in Alternative #1 is required by S7.3(a)(2) and the safety belt telltale for the manual belts in Alternative #2 is required by S7.3(a)(1) of Standard No. 208. Since neither telltale is required by S4.5.3.3 of Standard No. 208, S5.4(a) of Standard No. 101 expressly permits the use of common space to show a pretensioner malfunction message and the seat belt telltales under Alternatives #1 and 2 in your letter.

Further, Alternatives #1 and 2 appear to comply with S5.4(e) of Standard No. 101. That subparagraph requires that the seat belt telltale must be displayed and visible during the time specified in S7.3 of Standard No.

208. For Alternative #1, S7.3(a)(2) requires the seat belt telltale to be visible for four to eight seconds after the ignition is turned "on". The information in your letter indicates that under Alternative #1, even in the event of a pretensioner malfunction, the only information that would be displayed in the common space during the four to eight second period would be the seat belt telltale. For Alternative #2, S7.3(a)(1) of Standard No. 208 requires that the seat belt telltale be visible for not less than 60 seconds after the ignition is turned "on," if the driver's lap belt is not in use. The information in your letter indicates that under Alternative #2, even in the event of a pretensioner malfunction, the seat belt telltale would continue to be displayed alternately with the pretensioner malfunction message until such time as the belt was fastened.

Based on this review, it appears that using common space to display a voluntary pretensioner malfunction message and the required seat belt telltale, in the manner set forth in Alternatives #1 and 2 in your letter, would not violate any provisions of the safety standards.

This leaves Alternative #3, in which the voluntary pretensioner telltale would share common space with the air bag readiness indicator. S4.5.2 of Standard No. 208 requires that the air bag have a readiness indicator, which monitors its readiness, and which is clearly visible from the driver's seating position. The requirements in S5(a) of Standard No. 101 do not include air bag readiness indicators. Therefore, the provisions of Standard No. 101 would not apply to Alternative #3. The only question under Alternative #3, then, is whether the combination of the voluntarily provided pretensioner telltale with the required air bag readiness indicator would result in the air bag readiness indicator failing to comply with Standard No. 208.

Based on the description in your letter, we believe that your proposed Alternative #3 would effectively prevent the air bag readiness indicator from complying with Standard No. 208. Therefore, vehicles equipped with the warning system described in Alternative #3 would not comply with Standard No. 208. This conclusion is based on the following.

It would be permissible under Standard No. 208 to use a common space to display messages for both air bag readiness and a pretensioner malfunction. Nothing in the Standard No. 208 requirement for an air bag readiness indicator either expressly or impliedly precludes the use of common space for displaying the air bag readiness indicator and some other message. However, the messages on the common space would have to be distinguishable from each other. If the messages were not distinguishable, the driver of the vehicle would not know if the illuminated telltale showed a problem with the air bag system or a problem with the other system being monitored. NHTSA concludes that the requirement in S4.5.2 of Standard No. 208 that an air bag system be equipped with a readiness indicator necessarily requires that the air bag readiness indicator be clearly and readily distinguishable by the driver from any other information. Your Alternative #3 would not provide a readily distinguishable air bag readiness indicator, and so would not appear to comply with Standard No. 208.

I hope this information is helpful. If you have any further questions or need some additional information on this subject, please feel free to contact Steve Kratzke of my staff at this address or by telephone at (202) 366-2992.

ID: nht91-7.22

DATE: November 27, 1991

FROM: Masashi Maekawa -- Director, Technical Division, Ichikoh Industries, Ltd.

TO: Paul Jackson Rice -- Chief Counsel, NHTSA

TITLE: Re L03/04

ATTACHMT: Attached to letter dated 12-18-91 from Paul Jackson Rice to Masashi Maekawa (A38; Std. 108)

TEXT:

Enclosed please find our written inquiring concerning the interpretation of photometric output requirements for Tail/stop lamps on passenger cars.

ATTACHMENT

Dear Mr. P.J. Rice,

This letter is a question for the interpretation of photometer output requirements for tail/stop lamps on passenger cars.

We would like to know your opinion toward regarding photometer requirements.

We know the lamp like the following drawing is treated as two separate lamps: one lamp is mounted on the fixed quarter panel and duplicate lamp is mounted on the trunk lid.

Each lamp complies with the effective projected luminous areas requirements, but doesn't comply with the photometric requirement as shown below:

Effective projected Photometric requirement luminous requirement

Lamp A Comply does not comply Lamp B Comply does not comply

In this case, is it possible to apply the combination of lamps (Lamps A & B), as prescribed in S 5.1.1.6 of FMVSS No.108 to the photometric requirement of the stop lamp?

If yes, 1. Is it also possible to apply this provision to Tail lamp? 2. Which photometric requirements, 1 lighted section or 2 lighted sections, will apply?

Drawing of Tail/Stop Lamps A and B in relation to the quarter panel side and trunk lid side.

(Drawing omitted)

ID: nht91-7.23

DATE: November 29, 1991

FROM: Paul Jackson Rice -- Chief Counsel, NHTSA

TO: Michael H. Dunn -- Micho Industries

TITLE: RE: R-Bar Occupant Restraint System

TEXT: This is in response to your letter dated November 3, 1991 to Mr. Charles L. Gauthier updating him on your progress with the R-Bar Occupant Restraint System. The materials that you enclosed with the letter include articles from The Scranton Times and Santa Barbara News-Press. The Scranton Times article states that the Department of Transportation has "evaluated and approved" the R-Bar Occupant Restraint System. The Santa Barbara News-Press article states that the National Highway Traffic Safety Administration (NHTSA) "has gone on record that these devices meet or exceed all applicable Federal Motor Vehicle Safety Standards." Additionally, it has been reported to us that Micho Industries is making similar oral representations to potential customers.

All of these representations are incorrect. Neither the Department of Transportation nor the NHTSA has approved the R-Bar Occupant Restraint System. The NHTSA does not provide approvals of motor vehicle equipment. Under the National Traffic and Motor Vehicle Safety Act, it is the responsibility of the manufacturer to ensure that its vehicles or equipment meet all applicable standards. Furthermore, to state that the R-Bar meets or exceeds all applicable standards is grossly misleading when there are, in fact, no standards directly applicable to this device.

Therefore, I must insist that you immediately refrain from representing that NHTSA approves the R-Bar Occupant Restraint System, that it meets applicable Federal standards, or that NHTSA has gone on record as stating that it meets any standards. Should you continue such representations NHTSA will have no other choice but to bring the appropriate legal action against you.

ID: nht91-7.24

DATE: December 2, 1991

FROM: Deborah K. Nowak-Vanderhoef -- Attorney, General Motors Legal Staff

TO: Paul Jackson Rice -- Office of the Chief Counsel, NHTSA

COPYEE: Stephen R. Kratzke; Charles W. Babcock, Jr.; Robert A. Rogers; John E. Kromrei

TITLE: General Motors Corporation; FMVSS 209, Section S4.6(b); Request for Interpretation

ATTACHMT: Also attached to letter dated 12-20-91 from Paul Jackson Rice to Deborah K. Nowak-Vanderhoef (A38; Std. 209)

TEXT:

Enclosed is a request for interpretation of FMVSS 209, Seat Belt Assemblies, S4.6(b), as amended by the Final Rule published November 4, 1991 at Docket No. 74-14, Notice 72, 56 Fed. Reg. 56323. Specifically, General Motors Corporation (GM) seeks the agency's concurrence that it is permissible for manufacturers to continue to include the term "dynamically-tested" in the label required by S4.6(b) for seat belt assemblies not subject to FMVSS 209 S4.5(c).

GM has also submitted a Petition for Reconsideration of the same Final Rule, a copy of which is attached. Should the agency concur with the analysis outlined in the enclosed request for interpretation, please disregard the petition.

I appreciate your consideration of the enclosed request, and welcome the opportunity to work with you to resolve this issue. If you require further information in that regard, please feel free to call me.

ATTACHMENT

December 2, 1991

Paul Jackson Rice, Esq. Office of the Chief Counsel National Highway Traffic & Safety Administration Nassif Building 400 Seventh Street Washington, D. C. 20590

Dear Mr. Rice:

Re: General Motors Corporation; FMVSS 209, Section S4.6(b); Request for Interpretation

The Final Rule included at Docket No. 74-14, Notice 72, 56 Fed. Reg. 56323 (November 4, 1991), deleted the phrase "dynamically-tested" from the label required by section S4.6(b) of FMVSS 209, Seat Belt Assemblies, to make that section's label identical to the label required by FMVSS 209 S4.5(c). The purpose of this letter is to seek

the agency's concurrence that it is permissible for General Motors Corporation (GM) to continue to include the phrase "dynamically-tested" on its labels for seat belt assemblies which are not subject to S4.5(c).

BACKGROUND:

The label addressed in S4.6(b) must be included on light truck and multipurpose passenger vehicle seat belt assemblies certified as complying With FMVSS 208 S4.6.1. Such seat belt assemblies are dynamically-tested manual belt assemblies. The rule currently requires subject seat belt assemblies to be marked or labeled:

This DYNAMICALLY-TESTED seat belt assembly is for use only in (insert specific seating position(s), e.g., "front right") in (insert specific vehicle make(s) and model(s)).

S4.6(b) (Emphasis added).

The label required by S4.5(c) must be included on seat belt assemblies which include load limiters. It requires subject seat belt assemblies to be marked or labeled:

This seat belt assembly is for use only in (insert specific seating position(s), e.g., "front right") in (insert specific vehicle make(s) and model(s)).

S4.5(c). In the Preamble to the Final Rule, the agency stated:

This rule clarifies the scope of the labeling requirement for crash tested manual belts and modifies that labeling requirement to make it identical to the labeling requirement for safety belts with load limiters. These amendments will improve the clarity of the labeling requirements and AVOID NEEDLESS BURDENS ON THE MANUFACTURERS.

56 Fed. Reg. 56323. (Emphasis added.) The amendment takes effect on September 1, 1992.

GM'S ANALYSIS:

GM has released the part numbers for its 1993 model year production, and the seat belt assemblies affected by the amendment include the term "dynamically-tested" on the label. GM interprets the amendment to allow this, since the agency has, on a number of occasions, provided interpretations which indicate that manufacturers can alter label language without violating safety standards and regulations. For example, in a December 19, 1980 interpretation to Ford Motor Company, Mr. Frank Berndt concluded that Ford could alter a label required by FMVSS 213. He explained:

Your proposed revision DOES NOT MAKE ANY SUBSTANTIVE CHANGE IN THE MEANING OF THE WARNING specified for the label. Since the proposed change is A MINOR VARIATION INTENDED TO CLARIFY THE LANGUAGE ... it is permitted.

In another interpretation issued by Mr. Berndt, this one dated May 3, 1984, he explained to Nissan Research & Development, Inc., that a certification label that consists of two separate parts could be used as long as it "WILL NOT LEAD TO CONFUSION AND ... WILL SATISFY THE BASIC INTENT of Part 567." And in a series of interpretations on tire labeling requirements, the agency has consistently stated that additional information may be included, provided the additional language "DOES NOT OBSCURE OR CONFUSE THE MEANING OF THE REQUIRED INFORMATION, OR OTHERWISE DEFEAT ITS PURPOSE." See, e.g., May 31, 1988 letter from Ms. Erika Z. Jones to Metzeler Motorcycle Tire; and May 2, 1980 letter from Stephen P. Wood to the Goodyear Tire & Rubber Company.

GM's proposed inclusion of the term "dynamically-tested" in its seat belt labels falls within the agency's constraints on additional label language in each circumstance quoted above. The additional language does not substantively change the warning included in the label, and is a minor variation which clarifies that the restraint system included in the vehicle is dynamically tested. Nor will it obscure or confuse the message relayed by the label in any way.

CONCLUSION:

GM estimates that several hundred seat belt assembly part numbers (including production and service seat belt assemblies) would be affected by a requirement that GM exclude the term "dynamically-tested" from 1993 model year labels. As quoted above, the Final Rule is intended to "avoid needless burdens on manufacturers". The burden addressed there was the burden faced by manufacturers of seat belt assemblies subject to both S4.5(c) (i.e., equipped with load limiters) and S4.6(b). However, if interpreted to preclude the "dynamically-tested" language, the burden to GM to re-issue new parts for all of its affected assemblies (none of which include load limiters) would be considerable in both time and expense -- all to remove an accurately descriptive term from the label. In light of the agency's previous interpretations addressing additional language on required labels, GM seeks your concurrence on its conclusion that FMVSS 209 S4.6(b), as amended, does not preclude use of the term "dynamically-tested" in the label.

Very truly yours,

Deborah K. Nowak-Vanderhoef Attorney

DNV:cc

Attachment

c: Stephen R. Kratzke Charles W. Babcock, Jr.

John E. Kromrei Robert A. Rogers

ATTACHMENT

USG 2926 dated 12-4-91 from Robert A. Rogers (signature by F. Laux) to Jerry R. Curry regarding General Motors Corporation Docket 74-14; Notice 72 - Petition for Reconsideration of the Final Rule. (Text of USG omitted.)

ID: nht91-7.25

DATE: December 3, 1991

FROM: Paul Jackson Rice -- Chief Counsel, NHTSA

TO: John C. Buonora -- Director, The City of New York Police Department

TITLE: None

ATTACHMT: Attached to letter dated 11-1-91 from John C. Buonora to Mary Versailles (OCC 6632)

TEXT:

This responds to your letter of November 1, 1991, "regarding the removal of the operating handle for the reclining mechanism of the 1991 Chevrolet police car split bench seat." You asked for "a written determination stating whether or not the removal of the operating handle violates the seat safety standard and any possible NYPD legal liability in the event of an accident." I am pleased to have this opportunity to explain the requirements of Federal law for you.

The National Traffic and Motor Vehicle Safety Act (Safety Act) authorizes this agency to issue safety standards for new motor vehicles and new items of motor vehicle equipment. The Safety Act requires manufacturers to certify that each of their new vehicles or new items of equipment complies with all applicable safety standards at the time the product is delivered to the first purchaser in good faith for purposes other than resale.

After a vehicle is delivered to the first purchaser fur purposes other than resale, modifications to the vehicle are affected by section 108(a)(2)(A) of the Safety Act (15 U.S.C. 1397(a)(2)(A)). That section prohibits any manufacturer, dealer, distributor, or repair business from "rendering inoperative" any device or element of design installed in a vehicle in compliance with a safety standard. Therefore, if a business in any of the aforementioned categories removed the reclining mechanism operating handle, it would need to ensure that the vehicle continued to comply with all applicable safety standards following the removal.

Please note that section 108(a)(2)(A) does NOT affect modifications made by vehicle owners to their own vehicles. Therefore, the City of New York Police Department may itself remove the Operating handle for the seat reclining mechanism on vehicles it owns without violating the render inoperative" provision or any other provisions of the Safety Act, even if such removal did result in the vehicle no longer complying with all applicable safety standards.

However, the individual States have the authority to regulate the modifications that owners can make to their own vehicles. You should contact the State of New York to learn if it has enacted any laws or regulations that apply to your planned modification. In addition, since legal liability is a matter of state law, you may wish to consult with an attorney familiar with the law in the State of New York regarding potential liability.

I hope you find this information helpful. If you have further questions, please contact Mary Versailles of my staff at this address or by telephone

at (202) 366-2992.

ID: nht91-7.26

DATE: December 3, 1991

FROM: Paul Jackson Rice -- Chief Counsel, NHTSA

TO: Matthew J. Plache -- Esq., Gardner, Carton & Douglas

TITLE: None

ATTACHMT: Attached to letter 10-17-91 from Matthew J. Plache to Paul Jackson Rice (OCC 6577)

TEXT:

This responds to your request for an opinion of whether Daihatsu America, Inc. would be in violation of Federal law, including section 108(a)(1)(A) of the National Traffic and Motor Vehicle Safety Act ("Safety Act," 15 U.S.C. S 1397(a)(1)(A)), if it were to sell Daihatsu HIJET vehicles in accordance with specifications contained in a recent Request for Bid issued by the City of Los Angeles. According to your letter, HIJETS are general purpose off-road utility vehicles that are not intended for use on the public roads, streets or highways and, as such, do not comply with Federal motor vehicle safety standards. The City of Los Angeles Request for Bid, among other things, specifically required vehicles that are capable of being registered for street use in California and required the contractor to apply to register the vehicles and obtain license plates for them.

As discussed below, it is our opinion that it would be a violation of section 108(a)(1)(A) for a manufacturer or dealer to knowingly sell or offer to sell a HIJET vehicle to a customer for use on the public roads, streets or highways. A Request for Bid containing provisions similar to those set forth by the City of Los Angeles would indicate that the customer intends such use of the vehicle.

By way of background information, the issue of whether vehicles such as HIJETs are considered motor vehicles under the Safety Act was addressed by NHTSA in an October 31, 1988 interpretation letter addressed to Mr. Hiroshi Kato of Mitsubishi. That letter addressed the Mitsubishi SH27 lightweight industrial truck, which we understand, and you state, is very similar to the Daihatsu HIJET. At that time, Mitsubishi was considering whether to import the SH27.

In addressing the SH27, NHTSA noted that section 102(3) of the Safety Act (15 U.S.C. 1391(3)) defines a "motor vehicle" as "any vehicle driven or drawn by mechanical power manufactured primarily for use on the public streets, roads, and highways, except any vehicle operated exclusively on a rail or rails." The agency has interpreted this language as follows. Vehicles that are equipped with tracks or are otherwise incapable of highway travel are plainly not motor vehicles. Further, vehicles designed and sold SOLELY for off-road use (e.g., airport runway vehicles and underground mining devices) are not considered motor vehicles, even though they may be operationally capable of highway travel. NHTSA has also concluded that vehicles that have an abnormal body configuration that readily distinguishes them from other highway vehicles AND a maximum speed of 20 miles per hour (mph) are not considered motor vehicles.

On the other hand, vehicles that use the public highways on a necessary

and recurring basis are motor vehicles. For instance, a utility vehicle like the Jeep is plainly a motor vehicle, even though it is equipped with special features to permit off-road operation. If a vehicle's greatest use will be off-road, but it will spend a substantial amount of time on-road, then NHTSA has interpreted the vehicle to be a "motor vehicle." Further, the agency has determined that a vehicle such as a dune buggy is a motor vehicle if it is readily usable on the public roads and is in fact used on the public roads by a substantial number of owners, regardless of the manufacturer's stated intent regarding the terrain on which the vehicle is to be operated.

In addressing the SH27, NHTSA noted that the vehicle was not easily classified under these groupings. On the one hand, it has a body configuration nearly identical to standard trucks, can obtain a maximum speed of approximately 25 mph, and could be registered for use on the highways of several foreign countries. These factors suggested that the vehicle should be classified as a motor vehicle. On the other hand, Mitsubishi stated that the vehicle was intended to be used only for off-road applications, that it would be advertised and promoted for off-road purposes only, and that it would contain four warning labels stating "Warning: Off Road Use Only." These factors suggested that the vehicle should not be classified as a motor vehicle.

In instances where the agency is asked whether a vehicle is a motor vehicle when it has both off-road and on-road operating capabilities, and about which there is little or no evidence about the extent of the vehicle's on-road use, the agency has applied five factors in offering its advice. These factors are:

1. Whether States or foreign countries have permitted or are likely to permit the vehicle to be registered for on-road use.

2. Whether the vehicle is or will be advertised for use on-road as well as off-road, or whether it is or will be advertised exclusively for off-road use.

3. Whether the vehicle's manufacturer or dealers will assist vehicle purchasers in obtaining certificates of origin or title documents to register the vehicle for on-road use.

4. Whether the vehicle is or will be sold by dealers also selling vehicles that are classified as motor vehicles.

5. Whether the vehicle has or will have affixed to it a warning label stating that the vehicle is not intended for use on the public roads.

Based on the representations in Mitsubishi's letter, NHTSA concluded that the SH27 did not appear to be a motor vehicle under the Safety Act. In addition to the other factors noted above which suggested that the SH27 should not be considered a motor vehicle, Mitsubishi had stated that its dealers would be instructed that the vehicle was to be used solely for off-road purposes-and that no assistance should be given to obtain a title for the vehicle or to register the vehicle in this country. NHTSA stated, however, that it would reexamine its conclusion if it learned,

for example, that the vehicle was in fact used on the public roads by a substantial number of its owners.

With this background information in mind, I will now address your question whether Daihatsu America, Inc. would be in violation of Federal law, including section 108(a)(1) of the Safety Act, if it were to sell HIJET vehicles in Accordance with City of Los Angeles bid specifications that require vehicles that are capable of being registered for street use in California and require the contractor to apply to register the vehicles and obtain license plates for them. Section 108(a)(1)(A) reads as follows:

No person shall --

(A) manufacture for sale, sell, offer for sale, or introduce or deliver for introduction in interstate commerce, or import into the United States, any motor vehicle or item of motor vehicle equipment manufactured on or after the date any applicable Federal motor vehicle safety standard takes effect under this title unless it is in conformity with such standard and is covered by a certification issued under section 114 . . . .

It is our opinion that it would be a violation of this section for a manufacturer or dealer to knowingly sell or offer to sell a HIJET vehicle (which does not comply with Federal motor vehicle safety standards) to a customer for use on the public roads, streets or highways. The reason for this is that the only possible argument that a HIJET vehicle is not a motor vehicle is that it is intended solely for off-road use. The knowing sale to a customer for use on the public roads, streets or highways would nullify this possible argument. Moreover, a Request for Bid containing provisions requiring vehicles that are capable of being registered for street use in California and requiring the contractor to apply to register the vehicles and obtain license plates for them demonstrates that the customer intends such use of the vehicle.

Further, such action by Daihatsu or its dealers would demonstrate that HIJETs should be considered motor vehicles under the Safety Act and subject to Federal motor vehicle safety standards. I note that NHTSA's October 31, 1988 opinion that the similar Mitsubishi SH27 would not be considered a motor vehicle under the Safety Act was premised on certain representations by Mitsubishi. The knowing sale of such a vehicle to a customer for use on the public roads, streets or highways would be inconsistent with the representation that the vehicle was intended solely for off-road use. I also note that the provision in the City of Los Angeles Request for Bid requiring the contractor to apply to register the vehicle and obtain license plates for them is inconsistent with one of the specific understandings set forth in that opinion.

You stated that Daihatsu is concerned about this matter because it has recently received a number of similar solicitations for HIJET-like vehicles which could be interpreted as solicitations for on-road vehicles. You stated that because of its concerns about potential violations of Federal law, Daihatsu has refrained from submitting a bid in accordance with the City of Los Angeles request. You also expressed concern that

other suppliers of similar vehicles apparently do not share Daihatsu's concern and indicated that the Los Angeles contract was recently awarded to a supplier of the Mitsubishi SH27. Please be advised that we are referring your allegations to our Office of Enforcement to determine whether there has been a violation of section 108(a)(1)(A) of the Safety Act.

With respect to Daihatsu, I note that the receipt of a number of such solicitations may suggest a general perception that the HIJET is appropriate for on-road use. NHTSA has determined that a vehicle is a motor vehicle if it is readily usable on the public roads and is in fact used on the public roads by a substantial number of owners, regardless of the manufacturer's stated intent regarding appropriate use. Thus, if Daihatsu wishes to continue to classify the HIJET as a non-motor-vehicle, it should ensure that its customers do not plan to use them for on-road use.

I hope this information is helpful. If you have any further questions or need some additional information on this topic, please feel free to contact Marvin Shaw of my staff at this address or by telephone at (202) 366-2992.