ID: nht93-8.23

DATE: November 19, 1993

FROM: John Womack -- Acting Chief Counsel, NHTSA

TO: Ronald L. Signorino -- Director, Health, Safety & Regulatory Affairs, Universal Maritime Service Corp.

COPYEE: James Z. Peepas

TITLE: None

ATTACHMT: Attached to letter dated 11/3/93 from Ronald L. Signorino to John Womack

TEXT:

We have received your FAX of November 3, 1993, with respect to the trailer conspicuity specifications of Federal Motor Vehicle Safety Standard No. 108.

First, we regret the confusion that has been caused by our letter of October 20, 1993, to James Peepas of Selecto-Flash, Inc., which modified our earlier interpretation dated July 26, 1993. Mr. Peepas has made a number of calls to this Office seeking an understanding of the conspicuity requirements on Maersk's behalf, and, in our view, has pursued the matter with diligence.

You have presented three "Facts" and ask whether each is right or wrong.

"Fact: With particular reference to Maersk Line's prospective order for forty-foot gooseneck chassis (drawing accompanies this fax) your October 20 letter makes clear that calculable conspicuity treatments must not be obscured by trailer cargo."

If calculable means "required", this is a correct statement. Our letter of October 20 refers to the requirement of paragraph S5.7.1.4.2(a) that "at the location chosen, the strip (of sheeting) shall not be obscured in whole or in part by other motor vehicle equipment or trailer cargo."

"Fact: In calculating the area of conspicuity treatment for such chassis, the gooseneck section, as it is often hidden from view by mounted intermodal containers (trailer cargo), cannot properly be considered an appropriate site; and"

The length of the gooseneck is included in determining the overall length of the trailer for purposes of calculating the half length that must be covered by the conspicuity treatment (which, of course, would be greater than half the length behind the gooseneck). There is nothing in Standard No. 108 that precludes the application of auxiliary retroreflective sheeting to the gooseneck. Indeed, some manufacturers may wish to do so to provide conspicuity of the trailer side when the trailer is traveling without its cargo. However, any conspicuity treatment on a gooseneck is not counted in determining whether at least half the trailer side is covered.

"Fact: In determining the fifty percent of side surface area to receive conspicuity treatment on such chassis, the length of the chassis, from its rear bolster to its point immediately behind the gooseneck's terminus, is solely relevant."

This assertion is wrong, and the correct requirement is most clearly illustrated by the following example. Let us say that the overall length of the trailer is 40 feet, including an 8-foot gooseneck. The amount of the side to be covered is not less than 20 feet. The area to be covered is the 32 feet between the rear bolster to the point immediately behind the gooseneck's terminus. Thus, at least 20 feet of this 32-foot length must be covered in order to comply with Standard No. 108.

I hope that this clarifies the matter for you.

ID: nht93-8.24

DATE: November 22, 1993

FROM: John Womack -- Acting Chief Counsel, NHTSA

TO: Herman Myburgh -- Executive Vice-President, Allvan Corporation

TITLE: None

ATTACHMT: Attached to letter dated 11/8/93 from Herman Myburgh to John Womack (OCC-9292)

TEXT:

This responds to your FAX of November 8, 1993, asking for an interpretation of the conspicuity mounting height requirement of Standard No. 108 as it applies to your curtainsided trailer.

You state that there are no retroreflective tapes that can be affixed to the curtain material itself and ask whether the conspicuity material may be placed on the frame rail. The answer is yes. As you note, in that location the material will be located within the range of mounting heights specified in recent amendments to Standard No. 108.

For your information, submissions to the docket during the course of this rulemaking indicate that there are conspicuity materials that can be affixed to curtain materials. Some trailer manufacturers may prefer this avenue to compliance.

ID: nht93-8.25

DATE: November 22, 1993

FROM: John Womack -- Acting Chief Counsel, NHTSA

TO: Bob Carver -- Wayne Wheeled Vehicles

TITLE: None

ATTACHMT: Attached to letter dated 10/01/93 Est. from Bob Carver (OCC-9218)

TEXT:

This responds to your letter in which you referred to this agency's final rule amending Federal Motor Vehicle Safety Standard (FMVSS) No. 217, Bus Emergency Exits and Window Retention and Release, dated November 2, 1992 (57 FR 49413). Specifically, you referred to S5.5.3(c) of FMVSS 217, as amended, and asked whether it was necessary to outline an emergency roof exit with retroreflective tape even though the tape would not be visible unless the bus is tilted on its side. You also asked whether the tape width requirement will be changed to 1 inch.

As you correctly quoted in your letter, S5.5.3(c) of FMVSS 217, as amended by our final rule of November 2, 1992, provides:

Each opening for a required emergency exit shall be outlined around its outside perimeter with a minimum 3 centimeters wide retroreflective tape, either red, white, or yellow in color, that when tested under the conditions specified in S6.1 of 571.131, meets the criteria specified in Table 1.

The plain language of this provision requires every school bus emergency exit required by the standard to be outlined by the retroreflective tape, including required roof exits. No exceptions are provided in the standard.

I note that the November 1992 final rule required additional emergency exits for school buses, but provided manufacturers various options from which to choose. Roof exits were specified as one option because of their potential safety benefits in rollover situations where the bus comes to rest on its side. Further, roof exits could also serve as potential exit routes where other exit routes were either unavailable or inoperative. The retroreflective tape requirement was intended to increase the conspicuity of emergency exits in low-light situations. In a situation where a bus is resting on its side, the increased conspicuity of a roof exit could be critical for safety.

With regard to the width of the tape, we proposed a 1-inch retroreflective tape in the NPRM. However, in the final rule that 1 inch measurement was inadvertently converted to 3 cm rather than the correct 2.5 cm. We are in the process of issuing a technical amendment to the final rule which will specify that the tape must be not less than 2.5 cm (1 inch) in width rather than 3 cm.

I hope this information will be of assistance to you. Should you have any further questions or need any additional information, please feel free to contact Walter Myers of my staff at this address or at (202) 366-2992.

ID: nht93-8.26

DATE: November 22, 1993

FROM: John Womack -- Acting Chief Counsel, NHTSA

TO: Donald W. Vierimaa -- Vice President-Engineering, Truck Trailer Manufacturers Association

TITLE: None

ATTACHMT: Attached to letter dated 10/19/93 from Donald W. Vierimaa to John Womack (OCC-9229)

TEXT:

This responds to your letter of October 19, 1993, with respect to the trailer conspicuity requirements of Standard No. 108.

You report that "(o)ften a new tank trailer will be sold to a customer who will contract with another party to have a lining installed in the tank." Because of the high heat used in the installation of the lining, retroreflective sheeting cannot be applied before the lining is installed.

We believe that the trailer manufacturer is a more appropriate person for ensuring that its product meets the conspicuity requirements of Standard No. 108 than the installer of the lining, or the owner of the trailer. We would like to suggest alternative methods of compliance, other than a direct application of retroreflective tape to the trailer sides, as a resolution of this problem. Standard 108 permits the use of reflex reflectors as an alternative to retroreflective sheeting. If the trailer manufacturer prefers retroreflective sheeting, the sheeting may be applied at a lower level if deemed "practicable", or it may be applied to horizontal strips of aluminum that can be fastened to the sides of tank trailers and removed during the installation of the lining.

You also state that "non-tank trailers may be sold without conspicuity treatment when the owner wishes to contract the application of special paint and logo schemes." Sale of a trailer under these circumstances, without its compliance with the conspicuity requirements of Standard No. 108, would be an apparent violation of the National Traffic and Motor Vehicle Safety Act.

ID: nht93-8.27

DATE: November 22, 1993

FROM: Jane L. Dawson -- Specifications Engineer, Thomas Build Buses, Inc.

TO: Walter Myers -- Chief Counsel's Office, NHTSA

TITLE: None

ATTACHMT: Attached to letter dated 4/1/94 from John Womack to Jane L. Dawson (A42; Std. 217)

TEXT:

Last week I requested some clarification from you concerning the final rule to FMVSS 217, and you suggested that I fax you my questions. Please address the following:

1. The definition of "daylight opening" refers to the maximum unobstructed opening. What constitutes an obstruction and how close to the door does an object have to be in order to be considered an obstruction?

2. In the current rule, each school bus must be equipped with either a rear emergency door OR a LS emergency door in the rear half of the bus passenger compartment and a pushout rear window. Has the location of the INITIAL LS emergency door been changed so that it is now required to be as near as practicable to the midpoint of the passenger compartment or is the INITIAL LS emergency door still required to be in the rear half of the bus passenger compartment, and only a LS door that is used as an additional emergency exit required to be located as near as practicable to the midpoint of the passenger compartment?

Walter, I know that this will require a WRITTEN response from you, but I'd appreciate it if you would call me at (910) 841-5798 and go over it verbally before you write a response to save some time.

ID: nht93-8.28

DATE: November 23, 1993

FROM: John Womack -- Acting Chief Counsel, NHTSA

TO: J. C. DeLaney -- Manager, Technical Programs, Motorcycle Industry Council, Inc.

TITLE: None

ATTACHMT: Attached to letter dated 10/18/93 from J. C. DeLaney to John Womack (OCC-9226)

TEXT:

This responds to your request for an interpretation of Federal Motor Vehicle Safety Standard No. 123; Motorcycle controls and displays. You asked whether a motorcycle side stand complies with Standard No. 123 if the stand passes SAE J1587 Motorcycle Side Stand Retraction Test Procedure.

Standard No. 123 specifies at S5.2.4 Stands that: "A stand shall fold rearward and upward if it contacts the ground when the motorcycle is moving forward." Neither S5.2.4 nor any other provision of Standard No. 123 incorporates by reference, SAE J1587. Thus, if a motorcycle side stand passes the SAE J1587 test procedure, it does not automatically follow that the side stand complies with Standard No. 123.

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

ID: nht93-8.29

DATE: November 23, 1993

FROM: John Womack -- Acting Chief Counsel, NHTSA

TO: Joe Takacs -- Director of Engineering, Kinedyne Corporation

TITLE: None

ATTACHMT: Attached to letter dated 9/21/93 from Joe Takacs to Office of Chief Counsel, NHTSA (OCC-9173)

TEXT:

This responds to your letter of September 21, 1993 in which you referred to this agency's final rule amending Federal Motor Vehicle Safety Standard (FMVSS) No. 222, School Bus Passenger Seating and Crash Protection, dated September 3, 1993 (58 FR 46873). You requested our interpretation of that notice as to whether the following is acceptable:

1. The webbing Kinedyne uses in its wheelchair strap assemblies is industrial-type 1 or 2-inch polyester webbing that meets the strength and other requirements of S4.2 of FMVSS 209.

2. The hardware Kinedyne uses on its wheelchair strap assemblies are industrial-type 1 or 2-inch overcenter, ratchet or cam buckles; wire hooks; snap hooks and track fittings, all of which meet the strength and other requirements of S4.3 of FMVSS 209.

With regard to the webbing used in your strap assemblies, paragraph S4.2(a), FMVSS 209, provides that seat belt webbing cannot be less than 1.8 inches in width "except for portions that do not touch a 95th percentile adult male with the seat in any adjustment position and the seat back in the manufacturer's nominal design riding position ...." That means that seat belt webbing must be 1.8 inches in width only where it touches the person of the occupant. The width of webbed belts or straps which secure a wheel chair to the bus floor and do not touch the person of the occupant is not specified in any standard. Accordingly, Kinedyne is free to use belts of 1 inch or some other width, so long as such belts do not touch the person of the occupant and meet the other requirements of S4.2, FMVSS 209.

S4.3 of FMVSS 209 addresses a number of requirements for seat belt hardware, including corrosion and temperature resistance, attachment hardware, buckle release, adjustment force, retractor requirements (if applicable), etc. If the hardware Kinedyne uses in fact meet all those requirements, then it would be acceptable.

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

ID: nht93-8.3

DATE: November 08, 1993

FROM: Trombi, Federico -- Chief Homologation Engineer, Bugatti

TO: Womack, John -- Acting Chief Counsel, NHTSA

TITLE: NONE

ATTACHMT: Attached To A Letter Dated 05/09/94 From John Womack To Lance Tunick (A42; PART 525)

TEXT: This letter follows the recent correspondence that you received from Ms Rachel Jelly at Lotus Cars, Ltd. ("Lotus") regarding the question of whether Lotus and Bugatti Automobili S.p.A. may file separate petitions requesting alternate CAFE standards.

As Ms Jelly noted, in August of this year, Lotus was sold to Bugatti International Holding, SA, a Luxembourg company that also controls Bugatti Automobili, S.p.A. ("Bugatti SpA"), the Italian automobile manufacturer that is planning to enter the US market in the near future. Lotus and Bugatti SpA are operated as separate companies.

Lotus intends to file a CAFE exemption petition, as does Bugatti-SpA. Both companies are small volume manufacturers, and their joint annual production is far below the 10,000 units per year eligibility threshold. There is thus no question as to eligibility of either Bugatti or Lotus. The only question is whether Bugatti SpA and Lotus can file separate CAFE exemption petitions.

To our knowledge, the Bugatti/Lotus situation (that is, two small manufacturers under common control whose joint world-wide annual production is less than 10,000) is unique and has never before been addressed by NHTSA. Bugatti SpA is of the opinion that it is appropriate for Bugatti and Lotus to file separate petitions.

THE FILING OF TWO SEPARATE PETITIONS IS WITHIN THE LETTER AND SPIRIT OF THE CAFE STATUTE AND LESS LIKELY TO CREATE ENFORCEMENT PROBLEMS

The CAFE statute states that "a manufacturer" may submit a petition for a CAFE exemption. A joint petition in this case would not fall within this provision. Bugatti International is itself not a manufacturer, and under the statute it would be improper for TWO manufacturers to apply together.

Further, the purpose of the alternate standards provisions of the CAFE law is to permit a given small manufacturer to obtain an alternate CAFE standard that reflects the best fuel economy that SUCH small manufacturer can achieve. Combining two small companies together would muddy the all important question of the best fuel economy that EACH company is capable of achieving.

Lastly, if separate petitions were not allowed and a joint petition were required and a joint alternate standard were granted, in the event of a failure to comply with such a joint alternate standard, NHTSA would be faced with a difficult situation as regards enforcement To whom would NHTSA send the bill and how would the bill be divided?

THE FERRARI/ALFA CAFE DECISION DOES NOT PRECLUDE TWO PETITIONS IN THIS CASE

It would be improper to apply NHTSA's July, 1991 Ferrari - Alfa Romeo CAFE decision to the Bugatti/Lotus situation. Under that decision, Ferrari was found ineligible for a CAFE exemption because the total world-wide production of Ferrari and its sister companies (Fiat and Alfa) were combined when considering whether the 10,000 unit per year limit was exceeded. Under this test, Ferrari was ruled ineligible.

The Ferrari decision reversed a previous decision in 1978 which held that Maserati was eligible to apply for a CAFE exemption even though its related company, Innocenti, manufactured in excess of 10,000 cars per year. The Maserati decision was based on the fact that only Innocenti's US imports were counted when considering the 10,000 unit limit. Because Innocenti did not import into the US, Maserati was eligible.

For the following reasons, it is inappropriate to apply the Ferrari decision to the Bugatti/Lotus situation:

1) The Ferrari decision was an ELIGIBILITY DECISION, and there is no question here that Bugatti and Lotus are eligible (their combined world-wide annual production is less than 10,000). It is therefore inappropriate to apply the logic of the Ferrari decision to answer the completely different question at issue here -- should Bugatti SpA and Lotus receive separate standards?

2) The relevant FACTS of the Ferrari case were different from the facts in the Bugatti/Lotus situation. With Ferrari, NHTSA was considering two related companies (Ferrari and Alfa), one of which has a small volume manufacturer (Ferrari), the other of which was a large manufacturer (Alfa), and both of which were controlled by a still larger manufacturer (Fiat). In the Bugatti/Lotus case, Bugatti SpA and Lotus are both small manufacturers and their parent, Bugatti International, does not manufacturer autos. It is significant that the facts here are vastly different: NHTSA made it clear that the Ferrari decision depended heavily on the specific facts of that case.

3) In the Ferrari decision, NHTSA stated that the LEGISLATIVE GOAL of the CAFE exemption -- helping SMALL manufacturers -- would not be served if Ferrari were granted an exemption. In the Bugatti/Lotus situation, however, that goal would be best served if two standards were granted.

It is true that in the Ferrari decision, NHTSA said that "Ferrari and Alfa Romeo are in essence the same manufacturer for purposes of CAFE standards". NHTSA also stated that "any CAFE standard which applies to Ferrari should apply to Ferrari and Alfa Romeo together". These conclusions, however, do not foreclose Bugatti SpA and Lotus from filing separate petitions and receiving separate standards, for several reasons:

1) NHTSA's RATIONALE for these conclusions allows two standards in the Bugatti/Lotus situation. NHTSA based its conclusions on two sections of the CAFE law. Section 502(c) of the CAFE law permits CAFE exemptions to be granted ONLY IF NHTSA establishes "alternative . . . standards for . . . automobiles manufactured by manufacturers which receive exemptions". Section 503(c) defines "automobiles manufactured by a manufacturer" to include autos manufactured by a related company. Thus, in the Ferrari case, NHTSA concluded that it could grant Ferrari an exemption only if Alfa's cars were also covered by an alternate standard -- something that was impossible given Alfa's size. In the Bugatti/Lotus case, however, if two separate alternate standards were granted, NHTSA would be establishing alternate standards for all automobiles manufactured by all manufacturers which were receiving exemptions. Thus, the dilemma that existed in the Ferrari case is simply not present here.

2. The conclusions reached by NHTSA -- that Ferrari and Alfa Romeo were in essence the same manufacturer for purposes of CAFE standards and that any CAFE standard which applied to Ferrari should apply to Ferrari and Alfa -- must be read literally and confined to the context in which they were issued. In other words, when NHTSA stated that Ferrari and Alfa were "in essence the same manufacturer", the agency meant just that -- that Ferrari and Alfa were the same; the agency did NOT say or mean that two other manufacturers in a different situation would be "in essence the same". When NHTSA stated that the standard that applies to Ferrari should apply to "Ferrari and Alfa Romeo together", it meant exactly what it said -- that the standard should apply to Ferrari and Alfa; it did NOT say or mean that two other manufacturers in a different situation must meet the same result.

3. Lastly, NHTSA pointed out in the Ferrari decision that considering Ferrari and Alfa as separate manufacturers would cause problems, such as in determining compliance. In the Bugatti/Lotus case the opposite is true -- considering Bugatti and Lotus separately would create fewer problems.

The Ferrari ruling therefore only means that: 1) when the precise facts of the Ferrari situation exist (one small manufacturer related to larger manufacturers, with combined production in excess of 10,000), then all the manufacturers must be considered "the same" manufacturer, and the "normal" CAFE standard must apply; and 2) when there is a "related companies situation", one of two results must obtain: Either both companies are subject to "alternate standards" or both are subject to the "normal standard" (you cannot have half of one and half of the other).

Both of these readings of the Ferrari decision permit Bugatti SpA and Lotus to receive separate standards. Moreover, so limiting the application of the Ferrari decision to the specific facts of the Ferrari case is entirely consistent with NHTSA's careful crafting of a narrow ruling.

Based upon the forgoing, Bugatti SpA respectfully requests that NHTSA permit the filing of two separate petitions requesting 2 separate alternate standards for Bugatti SpA and Lotus.

Kindly direct any questions, as well as your response, to: Lance Tunick Ital Group Llc 9114 W 6th Ave. Lakewood CO 80215 (Tel. 303 274 0203) (Fax 303 279-9339)

ID: nht93-8.30

DATE: November 23, 1993

FROM: John Womack -- Acting Chief Counsel, NHTSA

TO: Jack McIntyre -- Vice President, Tie Tech Inc.

TITLE: None

ATTACHMT: Attached to letter dated 9/15/93 from Jack McIntyre to John Womack and (OCC-9123) and letter dated 8/18/93 from Jack McIntyre to John Womack

TEXT:

This responds to your letter in which you withdrew your petition for rulemaking of August 18, 1993, and requested an agency interpretation instead.

You referred to the final rule issued by this agency on January 15, 1993 (58 FR 4585), which amended Federal Motor Vehicle Safety Standard (FMVSS) 222. Specifically, paragraph S5.4.2.(a)(1) of the amendment provides that wheelchair securement devices composed of webbing or straps must meet the requirements for Type I safety belt systems specified in S4.2, among others, of FMVSS 209. You stated that there is no need to specify a minimum width for wheelchair securement belts and that the current industry standard for securement belts is a 1-inch polyester belt. Finally, you stated that the 1-inch polyester belts have less stretch than the 1.8-inch nylon belts and that the 1-inch belts are easier and less cumbersome to connect to a wheelchair.

Paragraph S4.2(a), FMVSS 209, provides that seat belt webbing cannot be less than 1.8 inches wide, "except for portions that do not touch a 95th percentile adult male with the seat in any adjustment position and the seat back in the manufacturer's nominal design riding position...." That means that seat belt webbing must be at least 1.8 inches wide whenever it touches the person of the seat occupant. The width of webbed wheel chair securement belts that do not touch the persons of the chair occupants is not specified in any standard. Therefore, wheel chair securement belts can be 1 inch or some other width, so long as they do not touch the persons of the chair occupants and meet the other requirements of applicable standards.

I hope this clarifies this matter for you. If you have any further questions or need any further information, please feel free to contact Walter Myers of my staff at this address or at (202) 366-2992.

ID: nht93-8.31

DATE: November 23, 1993

FROM: John Womack -- Acting Chief Counsel, NHTSA

TO: Amantha L. Barbee -- Sales Coordinator, Thomas Built Buses, Inc.

TITLE: None

ATTACHMT: Attached to letter dated 10/14/93 from Amantha L. Barbee to John Womack (OCC-9220), letter dated 1/26/93 from John Womack to Paul David Wellstone, letter dated 8/21/92 from Paul Jackson Rice to Chuck Anderson, and letter dated 9/27/85 from Jeffrey R. Miller to Charles Pekow

TEXT:

This responds to your letter to me of October 14, 1993, and your telephone conversation with Walter Myers of my staff on October 22, 1993.

You stated in your letter that you are the Head Start Sales Coordinator for Thomas Built Buses, Inc., and in that capacity you have found that many Head Start agencies are using conventional vans to transport Head Start students to and from their programs. You stated that when you asked the directors of the agencies why they did not use vehicles that comply with Federal motor vehicle safety standards (FMVSS) for school buses, their usual answer was "because we have not been told otherwise." You then asked whether this practice is illegal and if so, what your organization can do to rectify the situation.

As Mr. Myers explained in your telephone conversation, this agency has repeatedly stated that Head Start facilities are preprimary schools. Therefore, new buses sold to Head Start centers for use in transporting Head Start participants to and from school must comply with all Federal motor vehicle safety standards applicable to school buses. However, Federal law does not require Head Start facilities to use complying school buses or any other particular vehicles. The individual states, not the Federal government, have authority over the use of vehicles.

As promised by Mr. Myers, please find enclosed interpretation letters previously issued by us on this issue, as follows: to Hon. Paul David Wellstone, U.S. Senate, dated Jan. 26, 1993; to Mr. Chuck Anderson, dated Aug. 21, 1992; and to Mr. Charles Pekow, dated Sept. 27, 1985.

I hope this information will be useful. If you have any further questions or desire any further information, please feel free to contact Mr. Myers at this address or at (202) 366-2992.