Interpretation ID: KenWeinstein

Kenneth N. Weinstein, Esq.

Mayer Brown LLP

1909 K Street, NW

Washington, DC 20006-1101

Dear Mr. Weinstein:

This responds to your letter asking about the legal effect of certain language included in various versions of this agencys Laboratory Test Procedure (TP) for Federal Motor Vehicle Safety Standard (FMVSS) No. 209, Seat Belt Assemblies, prepared by our Office of Vehicle Safety Compliance (OVSC). The issues raised by your letter are addressed below.

In your letter, you noted that in a final rule published in the Federal Register (64 FR 27203) on May 19, 1999, the National Highway Traffic Safety Administration (NHTSA) deleted a provision (S4.1(b)) in FMVSS No. 209 requiring that the lap belt portion of a safety belt system be designed to remain on the pelvis under all conditions. The final rule was effective on July 29, 1999. The deleted language read, in relevant part, as follows:

A seat belt assembly shall provide pelvic restraint whether or not upper torso restraint is provided, and the pelvic restraint shall be designed to remain on the pelvis under all conditions, including collision or rollover of the motor vehicle. . . .

You stated in your letter that language derived from the deleted S4.1(b)[1] continued to appear in the TPs for FMVSS No. 209 until the issuance of TP-209-08 on December 7, 2007. This language read as follows:

The assembly shall provide pelvic restraint whether or not upper torso restraint is provided, and the pelvic restraint shall be designed to remain on the pelvis under all conditions, including collision or rollover of the motor vehicle.

You stated further that at least one plaintiffs attorney has asserted in a products liability lawsuit that, notwithstanding the amendment to the standard, the presence of the quoted language in the TP for FMVSS No. 209 acted to impose a duty on vehicle manufacturers to assure that the pelvic restraint shall be designed to remain on the pelvis under all conditions, including collision or rollover of the motor vehicle in all vehicles produced during the time that the language was present, i.e., until December 2007. You requested explicit confirmation that the inadvertent failure of OVSC to delete the language at issue from the TP did not, and does not, impose any requirements applicable to vehicles produced prior to that time. This letter provides the confirmation that you request.

By way of background, the National Highway Traffic Safety Administration (NHTSA) is authorized to issue FMVSSs that set performance requirements for new motor vehicles and items of motor vehicle equipment (see 49 U.S.C. Chapter 301). NHTSA does not provide approvals of motor vehicles or motor vehicle equipment.  Instead, manufacturers are required to self-certify that their products conform to all applicable safety standards that are in effect on the date of manufacture. NHTSA selects a sampling of new vehicles and equipment each year to determine their compliance with applicable FMVSSs.  If our testing or examination reveals an apparent noncompliance, we may require the manufacturer to remedy the noncompliance, and may initiate an enforcement proceeding if necessary to ensure that the manufacturer takes appropriate action.

As explained in a legal note set forth at the beginning of the OSVC TPs:

The OVSC Test Procedures are prepared for the limited purpose of use by independent laboratories under contract to conduct compliance tests for the OVSC. The TPs are not rules, regulations or NHTSA interpretations regarding the FMVSS. . . .

The OVSC TPs do not impose any requirements on manufacturers of motor vehicles or motor vehicle equipment. Manufacturers are required to certify compliance with applicable FMVSSs, not with TPs. The TPs do not have the effect of either adding to or limiting the requirements of the FMVSSs.

As indicated above, the provision you asked about was deleted from that standard in a final rule that was published in the Federal Register on May 19, 1999, and which became effective on July 29, 1999. Vehicles manufactured on after that effective date were not subject to that requirement.

We note that, as a practical matter, it may not be possible for the agency to revise a TP by the time a particular amendment to an FMVSS becomes effective. As to the particular language you cite, we agree that in that case the agency inadvertently left language derived from the deleted provision in subsequent versions of the TP until December 2007. However, as indicated above, language in a TP does not impose any requirements on manufacturers.

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

Sincerely yours,

Anthony M. Cooke

Chief Counsel

ref: 209

d.1/16/09