Interpretation ID: nht87-1.42

TYPE: INTERPRETATION-NHTSA

DATE: 03/02/87

FROM: AUTHOR UNAVAILABLE; Erika Z. Jones; NHTSA

TO: Douglas C. Fairhurst -- Townley and Update

TITLE: FMVSS INTERPRETATION

TEXT:

Douglas C. Fairhurst, Esq. Townley & Update 405 Lexington Avenue New York, NY 10174

Thank you for your letter concerning how the requirements of Standard 208, Occupant Crash Protection, would apply to an arrangement Jaguar has made for having its XJS hard-top model imported into the United States altered to become a convertible. You hav e raised a number of issues in your letter, which are addressed below.

You explained that "Jaguar has entered into a contractual arrangement with a company that specializes in converting hard-top vehicles into convertible models, the essential provisions of which obligate Jaguar to cooperate with and assist the converter in the latter's effort to secure orders from Jaguar's retail dealers for converting Jaguar XJS models imported into the United States into convertibles." You further explained that "The retail dealers to whom Jaguar sells the XJS will be encouraged to have any conversion work they desire to have done on the vehicles performed by this particular converter, although of course, they remain free to have conversion work done by anyone else if they so wish. Essentially Jaguar will facilitate the arrangement wit h its converter by making shipments of vehicles designated for conversion work by dealers directly to the converter's facilities. Under the contract, the converter has the responsibility of certifying that the vehicles on which it performs this work rema in in compliance with all applicable motor vehicle safety and emissions standards . . . ."

The first issue you raised is the application of S4.1.3.1.1 of the standard to this arrangement. That section requires each vehicle manufacturer to install automatic restraints in at least 10 percent of the passenger cars it produces during the time peri od, September 1, 1986 to August 31, 1987. You stated that Jaguar intends to meet the 10 percent requirement by installing automatic safety belts in its XJS models. You asked whether, assuming all the XJS models imported into the United States have automa tic safety belts and the total number of XJS models far exceeds the number of vehicles jaguar must equip with automatic restraints to meet the 10 percent requirement, it would be a violation of section 108(a)(2)(A) of the National Traffic and Motor Vehic le Safety Act for Jaguar's dealers and Jaguar's authorized converter to remove the automatic safety belt in the "excess" vehicles and install manual Safety belts that comply with the requirements of Standard No. 208 and 209 in those vehicles.

It would not be a violation of section 108(a)(2)(n) for Jaguar's dealers and the converter to alter the "excess" XJS hard-top models into convertibles and reinstall manual rather than automatic safety belts into the altered vehicle. Under our certificati on regulation, a person that alters a certified vehicle must certify that the vehicle, as altered, conforms with all applicable safety standards. The agency has previously said, such as in a January 11, 1979 letter to James Brown, that when a vehicle is altered from one vehicle type to another, the alterer must certify that the vehicle conforms to the safety standards that apply to the new vehicle type, in this case a convertible. Convertibles are temporarily exempt from the automatic restraint requirem ents of Standard No. 208 during the phase-in period, and may instead have either a manual lap or lap/shoulder belt.

Please note that the agency's final decision in the ongoing rulemaking on applying the automatic restraint requirement to convertibles may affect the conversion of hard-top cars into convertibles. If the agency does not exempt convertibles permanently fr om the automatic restraint requirement, then a vehicle alterer would have to ensure that the altered cars still complied with the automatic restraint requirement. Likewise, if the agency applied a dynamic test requirement to the manual safety belts used in convertibles, a vehicle alterer would have to equip an altered vehicle with either manual safety belts meeting the dynamic test requirements or with an automatic restraint system.

Having addressed the issue of the alterer's responsibility, I would like to explain how these conversions affect Jaguar. It is Jaguar's responsibility under section 4.1.3.1.1 to produce 10 percent of its passenger cars equipped with automatic restraints during the first stage of the phase-in period. In the factual situation you have described, jaguar has entered into a contract to facilitate the conversion of some of its automatic restraint-equipped hard-top models into manual belt-equipped convertibles before the cars are first sold to a consumer. Since Jaguar has consented to the conversion, and in fact will be encouraging its dealers to use a particular "authorized" converter, jaguar cannot count a vehicle that has undergone an authorized conversion in determining whether it has produced sufficient vehicles equipped with automatic restraints. These conversions would reduce both the number of cars that would have to be equipped with automatic restraints, and the number that are equipped with such re straints. Thus, Jaguar should carefully monitor the number of conversions to ensure that there will still be a sufficient number of automatic restraint-equipped vehicles to still be a sufficient number of automatic restraint-equipped vehicles to meet S4. 1.3.1.1.

I also want to address one further issue concerning the altered vehicles. S4.1.3.1 of the standard provides a carryforward credit to manufacturers for the automatic restraint equipped vehicles they produce in excess of the required phase-in percentages. Since, as explained above, Jaguar cannot count vehicles that have undergone an authorized conversion in determining whether Jaguar has met the phase-in requirements, Jaguar also cannot use those vehicles for the purpose of the carryforward credit.

If you have any further questions, please let me know.

Sincerely,

Erika Z. Jones Chief Counsel

July 2, 1986

Erika Jones, Chief Counsel National Highway Traffic Safety Administration 400 Seventh Street, S.W. Washington, D.C. 20590

Dear Ms. Jones:

This follows up our discussion last Thursday regarding the post-September 1, 1986 passive restraint requirements of FMVSS 208 as they would apply to the arrangement jaguar has made in the United States for having XJS hard-top models made into convertible s. At the conclusion of our meeting, I said I would frame the specific question on which Jaguar sought an advisory opinion from NHTSA and relate to you the material facts.

The salient facts are these. Jaguar has entered into a contractual arrangement with a company that specializes in converting hard-top vehicles into convertible models, the essential provisions of which obligate Jaguar to cooperate with and assist the con verter in the latter's efforts to secure orders from Jaguar's retail dealers for converting Jaguar XJS models imported into the United States into convertibles. The XJS, as I explained, is the 12 cylinder, two-door sports model which Jaguar offers to its dealers in two versions, the XJS-HE, which is the, hard-top coupe and the XJ-SC Cabriolet, the latter having the open-top feature of a convertible, but with the "B post" intact and a removable top consisting of interlocking targa panels. The retail deal ers to whom Jaguar sells the XJS will be encouraged to have any conversion work they desire to have done on the vehicles performed by this particular converter, although, of course, they remain free to have conversion work done by anyone else if they so wish. Essentially Jaguar will facilitate the arrangement with this converter by making shipments of vehicles designated for conversion work by dealers directly to the converter's facilities. Under the contract, the converter has the responsibility of cer tifying that the vehicles on which it performs this work remain in compliance with all applicable motor vehicle safety and emissions standards, and, as I explained, there are provisions under which Jaguar will be providing the converter with financial as sistance.

The issue I raised respecting the applicability or Regulation S4.1.3.1.1 (49 C.F.R. 571.208, S4.1.1.3.2) to this project arises by virtue of the intention of Jaguar to meet its obligation to fit passive restraint systems in no less than 108 of the vehicl es Imported into the country between September 1, 1986 and September 1, 1987 by installing automatic seat belts in the XJS models I have just described. The specific question Jaguar poses to NHTSA is whether, if all of the aforementioned XJS models impor ted into the United States were equipped with automatic seat belts (this being a number far exceeding the actual number of vehicles that need be fitted with such belts in order for Jaguar to meet the 108 requirement), it would be lawful under the Safety Act for Jaguar's dealers and the converter with which Jaguar has made this contract to remove the automatic belts in the "excess" vehicles and refit these vehicles with manual seat belts that comply with the requirements of FMVSS 208 and 209 as these app ly to convertibles? This removal and refitment operation is necessary because the process of converting the vehicle entails removal of the "B post" to which part of the assembly mechanism used in the automatic seat belt is affixed. As I say, the converte r will be recertifying that each converted vehicle conforms to all applicable federal motor vehicle safety standards and Jaguar will be selling to its dealers sufficient numbers of XJS models equipped with automatic seat belts to meet its 108 obligation.

Since the converted vehicles would continue to meet the requirements of FMVSS 208 and 209, it was and remains my view that under these circumstances the removal of automatic belts installed by the factory on an "optional" basis would not "impair" or rend er inoperative any device installed to meet a safety standard and hence would not constitute a violation of 15 U.S.C. S1397(a)(2)(a).

We would appreciate confirmation of this view and any other comments you feel are appropriate.

Very truly yours,

DOUGLAS C. FAIRHURST