ID: 22944.rbm

Mr. Jurgen Babirad
FSSA Consultant
Rehabilitation Technology Associates, Inc
P.O. Box 540
Kinderhook, NY 12106





Dear Mr. Babirad:

This responds to your correspondence regarding the National Highway Traffic Safety Administration's (NHTSA) recent final rule on vehicle modifications for individuals with disabilities. You ask about the applicability of that rule to a conversion that requires a lowered floor.

By way of background, NHTSA administers a statute requiring that motor vehicles manufactured for sale in the United States or imported into the United States, i.e., vehicles that are driven on the public roads and highways of the United States, be manufactured so as to reduce the likelihood of motor vehicle crashes and of deaths and injuries when crashes do occur. That statute is the National Traffic and Motor Vehicle Safety Act of 1966 ("Vehicle Safety Act") (49 U.S.C. 30101, et seq.).

One of the agency's most important functions under that Act is to issue and enforce the Federal Motor Vehicle Safety Standards (FMVSSs). Many of these standards specify safety performance requirements for motor vehicles, while others do so for items of motor vehicle equipment. Manufacturers of motor vehicles must certify compliance with all applicable safety standards and permanently apply a label to each vehicle stating that the vehicle complies with all applicable FMVSSs.

The Vehicle Safety Act also prohibits manufacturers, distributors, dealers, or motor vehicle repair businesses from knowingly making inoperative any part of a device or element of design installed on or in a motor vehicle or motor vehicle equipment that is in compliance with any applicable FMVSS (49 U.S.C. 30122). If NHTSA determines that a business has violated the make inoperative provision, it may assess a civil penalty in the amount of $5,000 per violation (not to exceed $15,000,000 in the aggregate). NHTSA may, through regulation, exempt a person or business from the prohibition if it decides that an exemption is consistent with motor vehicle safety and the Vehicle Safety Act.

On February 27, 2001, NHTSA published a final rule setting forth a limited exemption from the make inoperative prohibition for businesses or individuals who modify vehicles for persons with disabilities (66 Federal Register 12638; Docket No. NHTSA-01-8667). While portions of several FMVSSs were subject to the exemption, FMVSS No. 301, Fuel System Integrity, and FMVSS No. 105, Hydraulic and Electric Brake Systems, were not. Additionally, the exception was limited to modifications made after the first retail sale of the vehicle.

In your letter, you raised several questions related to the February 27 final rule that are detailed below.

1) Is there a "grace period" in which vendors can still modify vans without regard to this new ruling?

NHTSA has never provided a "grace period" during which businesses could modify vehicles in a manner that would negate compliance with applicable FMVSSs. Rather, the Part 595 exemption allows businesses to make such modifications subject to the terms of the exemption. The exemption took effect April 30, 2001. Prior to that time, NHTSA considered requests from businesses or individual vehicle owners on a case-by-case basis. NHTSA issued letters stating that it would not take enforcement action against the business if it made the modifications detailed in its correspondence to the agency.

The final rule also imposed certain reporting requirements for businesses that avail themselves of the Part 595 exemption. Those requirements did not take effect until August 27, 2001. The separate effective date for the reporting requirements did not create a "grace period" from the prohibition against making required safety equipment inoperative.

2) Can the air bag exemption (FMVSS No. 208, Occupant Crash Protection) be granted if another type vehicle could be done without interfering with the air bag system or its components?

The Part 595 exemption does not require a different vehicle to be used in situations where modification could be done on that vehicle in a manner that does not negate compliance with a portion of a FMVSS that is included in the Part 595 exemption. However, if a vehicle has not yet been purchased, the purchaser should consider whether another vehicle may be more appropriate for the types of contemplated modifications.

3) Is it reasonable to believe that moving the under-the-seat air bag module would affect the operation of the OEM system? Would moving the module (such as between the two front seating locations) require new crash testing to provide needed documentation that the system has been recertified in this configuration?

It is certainly possible that moving an air bag module or sensor could affect the operation of the original system. While a modifier would need to assure itself that such a modification does not undermine compliance with a standard that is not subject to a Part 595 exemption, NHTSA has included certain relevant portions of FMVSS No. 208 in the Part 595 exemption.

4) To our knowledge there is not a crash tested lowered floor Chevy G-1500 conversion type. Lowering the floor 4" would either require relocating the OEM tank, rerouting the fuel filler neck and hoses and or replacing the tank with an aftermarket model. General Motors does not offer a factory approved replacement fuel tank and fuel delivery system. Would any of these modification methods be compliant with FMVSS 301?

As noted above, FMVSS No. 301 is not included in the Part 595 exemption. Accordingly, a modifier must assure that vehicle modifications do not negate compliance with the standard. However, it is not possible for NHTSA to answer your question "Would any of these modification methods be compliant with FMVSS No. 301?" NHTSA does not approve motor vehicles or motor vehicle equipment items, nor does the agency endorse any commercial products or vendors. Furthermore, we cannot provide specific information as to whether the types of potential modifications you have discussed would have the effect of taking the vehicle out of compliance with FMVSS No. 301. This responsibility lies with the modifier. If a lowered floor is desired, one way to provide assurance that modifications do not undermine compliance is to purchase a vehicle with a lowered floor that has been certified as complying with FMVSS No. 301. Another way is by modifying the vehicle pursuant to a specific protocol based on analysis of crash-testing in accordance with FMVSS No. 301. For example, we believe that the National Mobility Equipment Dealers Association (NMEDA) has successfully crash-tested a vehicle with a lowered floor and that it provides an explanation of how to make such a modification to its Quality Assurance Program (QAP) members. Finally, a modifier may be able to use engineering analysis alone to determine whether the vehicle modification would take a vehicle out of compliance with the standard. This last option is the most risky since there is no crash-test data to verify the soundness of the modifier's judgment.

5) Moving the anti-lock brake sensor may affect the braking system. FMVSS No. 105 was not granted permission to be made inoperative. Would moving the module from the OEM location require testing and recertification? What method of testing would satisfy the recertification requirement?

As discussed in response to the previous question, any modification that may take a vehicle out of compliance with a particular safety standard must be done in a manner that does not take the vehicle out of compliance unless the affected portion of the standard is covered be the Part 595 exemption. If the exemption is not applicable, the modifier must assure itself that the vehicle has not been taken out of compliance. Since FMVSS No. 105 does not require destructive crash-testing, the modifier may choose to run the test protocol set forth in FMVSS No. 105. Alternatively, the modifier may be able to rely on the other alternatives provided in the response to the previous question.

NHTSA cannot provide information as to whether the types of potential modifications you have discussed would have the effect of taking the vehicle out of compliance with FMVSS No. 301 or FMVSS No. 105. Such responsibility lies with the modifier. As noted above, the critical factor is whether the vehicle, as modified, would pass NHTSA's compliance tests for those standards. Absent such vehicle specific test data, we urge vehicle modifiers to work closely with vehicle manufacturers to determine whether a potential modification would take a vehicle out of compliance.

I hope the addresses your concerns. Please contact Rebecca MacPherson of my staff at this address or at (202)366-2992, should you have any additional questions about this matter.

Sincerely,

Jacqueline Glassman
Chief Counsel

ref:595
d.4/4/02

ID: 22946.rbm

Mr. Jurgen Babirad
Rehabilitation Technology Associates, Inc
P.O. Box 540
Kinderhook, NY 12106





Dear Mr. Babirad:

This responds to your correspondence regarding the National Highway Traffic Safety Administration's (NHTSA) recent final rule on vehicle modifications for individuals with disabilities. You ask about the applicability of that rule to a conversion that requires a lowered floor.

By way of background, NHTSA administers a statute requiring that motor vehicles manufactured for sale in the United States or imported into the United States, i.e., vehicles that are driven on the public roads and highways of the United States, be manufactured so as to reduce the likelihood of motor vehicle crashes and of deaths and injuries when crashes do occur. That statute is the National Traffic and Motor Vehicle Safety Act of 1966 ("Vehicle Safety Act") (49 U.S.C. '' 30101, et seq.).

One of the agency's most important functions under that Act is to issue and enforce the Federal Motor Vehicle Safety Standards (FMVSSs). Many of these standards specify safety performance requirements for motor vehicles, while others do so for items of motor vehicle equipment. Manufacturers of motor vehicles must self-certify compliance with all applicable safety standards and permanently apply a label to each vehicle stating that the vehicle complies with all applicable FMVSSs.

The Vehicle Safety Act also prohibits manufacturers, distributors, dealers, or motor vehicle repair businesses from knowingly making inoperative any part of a device or element of design installed on or in a motor vehicle or motor vehicle equipment that is in compliance with any applicable FMVSS (49 U.S.C. 30122). If NHTSA determines that a business has violated the make inoperative provision, it may assess a civil penalty in the amount of $5,000 per violation (not to exceed $15,000,000 in the aggregate). NHTSA may, through regulation, exempt a person or business from the prohibition if it decides that an exemption is consistent with motor vehicle safety and the Vehicle Safety Act.

On February 27, 2001, NHTSA published a final rule setting forth a limited exemption from the make inoperative prohibition for businesses or individuals who modify vehicles for persons with disabilities (66 Federal Register 12638; Docket No. NHTSA-01-8667). While portions of several FMVSSs were subject to the exemption, FMVSS No. 301, Fuel System Integrity, was not. Additionally, the exception was limited to modifications made after the first retail sale of the vehicle. Accordingly, it does not apply to vehicle alterers.

In your letter, you raised several questions related to the February 27 final rule and FMVSS No. 301, which are detailed below.

1) The Ahnafield Corporation has stated to Mr. Bruce McKay, Program Consultant for Indiana Vocational Rehabilitation Services, that this standard (FMVSS No. 301) does not apply to his products, that it only applies to manufacturers. Please clarify this issue.

FMVSS No. 301 is a vehicle standard that addresses a vehicle's fuel system integrity. How and if the standard applies to the Ahnafield Corporation is dependent upon the product or services that Ahnafield provides. Producers of equipment that is used in a system designed to comply with a particular FMVSS are component suppliers and would not be directly subject to the requirements of the standard, ⁽¹⁾

although any manufacturer or alterer using the product would be. Final stage manufacturers or alterers of vehicles that modify a vehicle system that the previous-stage manufacturer had certified as compliant must certify that the vehicle, as finally manufactured or altered, complies with all applicable FMVSS, including FMVSS No. 301. Vehicle modifiers, i.e., businesses that modify a vehicle after first retail sale, may not modify a vehicle in such a way as to negate the vehicle's compliance with any applicable FMVSSs for which there is no exemption, although the modifier is not required to certify compliance with all applicable standards.

Since NHTSA has not included FMVSS No. 301 as part of the exemption from the make inoperative provision, Ahnafield cannot modify a vehicle in a manner that negates compliance with that standard, even if it is a modifier rather than a manufacturer or alterer. Any modifier using an Anhnafield product that would negate compliance would likewise be acting in violation of Federal law.

2) Some vendors are requesting verification as to whether different configurations will meet the FMVSS standard, namely,
Does the Transfer Flo aft of axle fuel tank meet compliance for the 2000 Ford E150?
For a 4" lowered floor, does the OEM fuel system lowered with a skid plate, requiring minor notching of the frame rail with reinforcement, meet compliance?
For a 4" lowered floor, does the OEM fuel tank remaining intact with a 2" body raise meet compliance?
For a 6" lowered floor conversion, does the OEM fuel system lowered, with a skid plate for protection, requiring minor notching of the frame rail meet compliance?

Because there is no exemption related to fuel systems, vehicle modifiers must take care to ensure that they do not modify the vehicle fuel system in a manner that takes it out of compliance with FMVSS No. 301. The surest way to provide such assurances would be to purchase vehicles where the floor has already been lowered by the vehicle manufacturer or alterer, who has certified compliance with FMVSS No. 301. Another way to provide assurance that compliance has not been compromised is by modifying the vehicle pursuant to a specific protocol based on analysis of crash-testing in accordance with FMVSS No. 301. For example, we believe that the National Mobility Equipment Dealers Association (NMEDA) has successfully crash-tested a vehicle with a lowered floor and that it provides an explanation of how to make such a modification to its Quality Assurance Program (QAP) members. Finally, a modifier may use engineering analysis alone to determine whether the vehicle modification would take a vehicle out of compliance with the standard. This last option is the most risky since there is no crash-test data to verify the soundness of the modifier's judgment.

NHTSA cannot provide information as to whether the types of potential modifications you have discussed would have the effect of taking the vehicle out of compliance with FMVSS No. 301. As noted above, the critical factor is whether the vehicle, as modified, would pass a FMVSS No. 301 crash test. Absent such vehicle specific test data, we urge vehicle modifiers to work closely with the vehicle manufacturers to determine whether a potential modification would take a vehicle out of compliance.

I hope the addresses your concerns. Please contact Rebecca MacPherson of my staff at this address or at (202)366-2992 should you have any additional questions about this matter.

Sincerely,

John Womack
Acting Chief Counsel

ref:595
d.12/10/01

¹ As a practical matter, component suppliers often assume some responsibility for the compliance of their products to applicable FMVSSs. This is done through a contractual relationship between the supplier and the vehicle manufacturer that certifies compliance.

ID: 22968.ztv

Mr. Gene Whitaker
President
Whit-Log, Inc.
P.O. Box 668
Wilbur, OR 97494





Dear Mr. Whitaker:

This is in reply to your letter of February 7, 2001, asking whether a "pole-hauling" trailer that you manufacture is exempt from "the Federal regulation that requires . . . reflective tape." You furnished pictures of the trailer with your letter.

The regulation to which you refer is Federal Motor Vehicle Safety Standard No. 108. This standard does not apply to "pole trailers" (S3(a) of 49 CFR 571.108). A pole trailer is a trailer "attached to the towing vehicle by means of a reach or pole, or by being boomed or otherwise secured to the towing vehicle, for transporting long or irregularly shaped loads such as poles, pipes, or structural members capable generally of sustaining themselves as beams between the supporting connections" (49 CFR 571.3(b)).

Your trailers appear designed to haul trees or logs, which would be long loads within the meaning of the definition of "pole trailer." We have therefore concluded that this trailer is a "pole trailer" and not required to comply with the requirements of Standard No. 108, including the requirements for conspicuity marking.

Sincerely,

John Womack
Acting Chief Counsel

ref:108
d.3/13/01

ID: 22968.ztv.wpd

Mr. Hugo De Roo
Area Export Manager
Van Hool N.V.
Bernard Van Hoolstraat 58
B-2500 Lier Koningshoolkt
Belgium

Dear Mr. De Roo:

This is in reply to the letter that you and Mr. Van Hool wrote on March 20, 2003, asking for an interpretation with respect to required markings on lenses of certain rear lamp clusters on Van Hool buses. You asked that we address both original and replacement lenses. You believed that Van Hool may have failed to comply with our regulations.

Federal Motor Vehicle Safety Standard (FMVSS) No. 108 (49 CFR 571.108), Lamps, Reflective Devices and Associated Equipment, does not require lenses of any rear lamp, whether original or replacement, to be marked with the SAE identification code or any other markings (although the standard permits replacement equipment to be marked with the DOT symbol as a certification of compliance). Therefore, the fact that Van Hool lenses may not be marked is not a failure to comply with a FMVSS that would require the company to notify owners and to remedy a noncompliance.

We understand that owners and users of Van Hool buses may also be subject to the lighting equipment regulations of the Federal Motor Carrier Safety Administration (FMCSA) of the Department of Transportation, 49 CFR Part 393 (2002). These regulations state that any required reflector on a motor vehicle subject to FMCSA regulations must comply with FMVSS No. 108, and be marked with the manufacturers name or trade name and the letters "SAE-A." See Sections 393.26(b) and (c). As for the marking of lamps, under Section 393.25(d), all lamps "required to conform to the requirements of the SAE standards" are to be marked with SAE designations and other information. However, since March 7, 1990, lamps are no longer required to conform to SAE requirements but must meet FMVSS No. 108 instead. See footnote (b)(2) to Section 393.24(c) (which also specifies that in a conflict between an SAE standard and a FMVSS, the latter shall prevail). Accordingly, with the exception of reflectors as noted, Section 393 has not required lighting equipment to be marked on any vehicles manufactured since March 7, 1990.

If you have any questions, you may call Taylor Vinson of this Office (202-366-5263).

Sincerely,

Jacqueline Glassman
Chief Counsel

ref:108
d.5/29/03

ID: 23010.ztv

Mr. Tomas P. Quintanilla
Customs & Quarantine Officer III
1501 Central Avenue
Tiyan, GU 96913





Dear Mr. Quintanilla:

This is in reply to your fax of April 18, 2001 asking several questions about a 1954 BMW motorcycle recently imported into Guam. You report that "the motorcycle has all the original parts affixed when it was manufactured excluding the tires." We understand this to mean that the tires on the vehicle are not the original ones.

You asked "If the tires on the motorcycle are specifically made for that type and year of motorcycle/vehicle and manufactured after 1966, should it or does it have to comply with the FMVSS?"

This is an interesting question, and the answer is no. The motorcycle itself, of course, is not required to meet the Federal motor vehicle safety standards since it is a motor vehicle that is "at least 25 years old" (49 U.S.C. 30112(b)(9)). On the other hand, Federal Motor Vehicle Safety Standard No. 119, "New Pneumatic Tires for Vehicles Other Than Passenger Cars," is an equipment standard. It does not apply to motorcycles but to "new pneumatic tires designed for highway use on . . . motorcycles manufactured after 1948" (S3, 49 CFR 571.119). There is no question that new replacement tires for a 1954 BMW motorcycle would have to meet Standard No. 119. Nor is there any question, under our interpretations, that, if the BMW's tires were shipped separately, they would have to comply with Standard No. 119 if they were manufactured on or after September 1, 1974, the effective date of Standard No. 119 (Unlike its treatment of motor vehicles, Section 30112(b)(9) does not exclude motor vehicle equipment from applicability of the Federal motor vehicle safety standards on the basis of age).

However, when a single motor vehicle that is no longer required to comply with our regulations because of its age is imported into the United States, we would not require any individual replacement equipment item installed on the vehicle at the time of entry to meet a Federal requirement that might be appropriate were the equipment item detached and shipped separately. This means that the tires of the BMW motorcycle do not have to comply with Standard No. 119 if the motorcycle is imported with them installed (or if they are detached and were manufactured before September 1, 1974).

You have also asked: "If an individual imports a . . . 1950/1960 model vehicle and needs to replace any glass item with an original replacement (windshield, window lights . . . .) do these items need to comply with FMVSS?"

The answer is yes. Any glazing that is manufactured to replace any glazing in any motor vehicle, no matter what its age, must be manufactured and marked in accordance with Federal Motor Vehicle Safety Standard No. 205, Glazing Materials, Glazing installed in a motor vehicle at the time of its importation need not comply with Standard No. 205 when the vehicle itself is excused from compliance because it is 25 years or older in age.

Sincerely,

John Womack
Acting Chief Counsel

ref:591
d.5/15/01

ID: 23014.ztv

Mr. Benjamin J. Freeman
1715 Aberdeen Avenue
Aberdeen, WA 98520





Dear Mr. Freeman:

This is in reply to your letter of March 30, 2001, with further questions following my letter to you of February 26, 2001.

Your first question is which of the current Federal motor vehicle safety standards (FMVSS) apply to "light duty trucks" and "MPVs." You state that you have "the full FMVSS text." You will find your answer in the text. Each FMVSS has an applicability paragraph, either S2 or S3. This paragraph identifies the types of vehicles to which that particular FMVSS applies. We have no definition or category of "light duty truck," therefore we have no list that could help you. The category "truck" includes both light and heavy duty vehicles. However, some FMVSS that apply to "trucks" may only apply to trucks at and below a specified Gross Vehicle Weight Rating (GVWR) (for example, S2 of FMVSS No. 225, "Child Restraint Anchorage Systems," applies the standard to trucks and multipurpose passenger vehicles with a GVWR of 3,855 kg (8,500 lbs.) or less).

Your next question is whether a noncomplying vehicle, manufactured in 1989 before the effective date of the registered importer requirements, January 31, 1990, may be imported without using a registered importer. The answer is no; the importation regulations (49 CFR Part 591), effective that date, require all motor vehicles less than 25 years old that are not certified by their manufacturer as complying with all applicable FMVSS and that are imported for personal use to be imported pursuant to a contract with a registered importer to bring the vehicle into conformance and to certify that conformance to NHTSA. We regret that you have been unable to come to an agreement with any of the registered importers that you have contacted.

Sincerely,

John Womack
Acting Chief Counsel

ref:591
d.5/10/01

ID: 23055-2.drn

Walter J. Lewis, Senior Compliance Engineer
Porsche Cars North America, Inc.
980 Hammond Drive
Atlanta, GA 30328

Dear Mr. Lewis:

This responds to your request for an interpretation of the requirements for heating/air conditioning controls specified in Federal Motor Vehicle Safety Standard No. 101, Controls and Displays. In particular, you asked whether, for a proposed system you are considering, the design concept for identifying the temperature control, fan speed control, windshield defroster, rear window defroster, and the air conditioning/heating system would meet Standard No. 101's requirement that identification of controls be "on or adjacent" to the control. Our response is provided below.

Because your system is still undergoing development, certain specifics about how some controls are to be actuated or adjusted and identified are apparently not available. However, we believe we have sufficient information about your system, including its basic concept, to respond to your question. The following represents our understanding of how your proposed system would function, based in part on a June 18, 2001, meeting between National Highway Traffic Safety Administration officials, and Mr. Stephan Schlaefli, Porsche's General Manager for Compliance, and Mr. Dale Kardos, a Porsche consultant.

Porsche's Proposed Design for Its Control and Display System

With your letter, we were provided three additional pages: a computer-generated depiction of a passenger car interior with the proposed system, and two other pages that depict images of identification of controls as they would appear on a video display screen. ⁽¹⁾ The computer-generated image shows on the front dash a small video display screen. On a center console between the driver's seat and the front passenger seat are several buttons and a "combination multi-function switch/rotary dial." This latter device includes a dial which can be rotated and what might be called four toggle switches around the dial (or a joystick that can be moved to four positions). The buttons and combination multi-function switch/rotary dial are the controls for temperature, fan speed, the windshield defroster, the rear window defroster, heating and air conditioning, and other functions such as the radio and navigational guide.

A. Buttons Used with Video Display Screen

The buttons consist of the following, from left to right:

• A single button labeled "C," which stands for "cancel."
• A temperature control button, below which is a fan control button
• A windshield defroster control button, below which is a rear window defroster control button

Apparently, by pressing "C," one can cancel the most recently actuated function. Except for "C," each button is labeled with the ISO symbol for the respective function. Pressing the respective button turns on each function. To adjust the respective function, (i.e., increase or decrease fan speed, or raise or lower the temperature), one uses the dial that is part of the combination multi-function switch/rotary dial (located under the various buttons). This dial must be used in conjunction with the video display screen.

For example, to actuate the fan speed control, one presses the fan speed button (on the console between the driver and front passenger seats). On the video display (on the front dash) appears a circle that depicts the dial, with the fan symbol in the middle. Curved arrows within the circle point to the right and left. On another part of the video display appears the fan symbol next to six vertical bars that increase in height from short to long. Turning the dial makes the fan speed faster or slower. The fan speed is indicated by the number of illuminated bars. The faster the fan spins, the more bars are illuminated. By turning the dial to the right or left, one sees the number of bars either illuminating or darkening, until all bars are either illuminated or dark.

B. Primary Functions for the Combination Multi-Function Switch/Rotary Dial

If the dial were compared to the face of a clock, at the 12, 3, 6 and 9 o'clock positions of the dial are what appear to be toggle switches (or a joystick) that can be adjusted at each position. Only one position at a time can be selected.

• The 12 o'clock position is labeled "A/C," for air conditioning,
• The 3 o'clock position is labeled "SET," which stands for an unspecified function or functions (which apparently do not include controls specified in Table One of Standard No. 101),
• The 6 o'clock position is labeled "Radio" and
• The 9 o'clock position is labeled "BC" which is an abbreviation for the on-board computer that provides information such as fuel consumption, and oil temperature.

We assume the dial can be rotated indefinitely.

C. Multiple Uses for the Combination Multi-Function Switch/Rotary Dial

Although the four dial positions are labeled as described above, they in fact can be used for multiple functions that must be actuated in conjunction with the video display screen on the front dash. Not all of the functions that are available by use of the toggle switches and dials were described.

To give an example, to actuate the air conditioning system, one pushes the toggle switch at the 12 o'clock position (labeled "A/C") of the dial. One knows the air conditioning function is actuated because a new screen appears (on the video display screen), in the corner of which the term "AC" is highlighted. On the new screen appears a circle in the middle of which is the ISO symbol for temperature (a depiction of a thermometer) with the term " C." The circle represents the dial. We assume that the air conditioning can be turned up or down by turning the dial.

Contrary to what is actually labeled on the center console dial, the video display screen shows four entirely different functions for the air conditioning control. On the video display screen, the 12 o'clock position is labeled with the ISO symbol for air conditioning (a snowflake), the 3 o'clock position is labeled with the ISO symbol for air vent direction (three arrows pointing towards a passenger seat), the 6 o'clock position is labeled "Auto" (which apparently stands for a default position that one can set) and the 9 o'clock position is depicted with a symbol which we assume stands for air circulation (three curved arrows forming a circle).

If one wants to adjust the air vent direction, one pushes the toggle switch (located on the center console) at the 3 o'clock position. One knows when the correct function is selected because in the corner of the display screen, the ISO symbol for air vent direction is highlighted. Selection of the air vent direction function results in the display of other images on the display screen, this time the circle with four alternative air vent directions at each clock position. The desired air vent direction is selected by pushing the toggle switch at the depicted position.

Would a Vehicle With the Proposed Design Meet Standard No. 101's Requirement that Identification of Controls be "on or adjacent" to the Control?

With this background information, I will now address how Standard No. 101 affects your proposed design. S5.2.1(a) states in relevant part:

[a]ny hand-operated control listed in column 1 of Table 1 that has a symbol designated for it in column 3 of that table shall be identified by either the symbol designated in column 3 ... or the word or abbreviation shown in column 2 of that table. ... Any such control for which column 2 of Table 1 and/or column 3 of Table 1 specifies "Mfr. Option" shall be identified by the manufacturer's choice of a symbol, word or abbreviation, as indicated by that specification in column 2 and/or column 3. The identification shall be placed on or adjacent to the control. (Emphasis added.)

Controls listed in column 1 of Table 1 include the "heating or air conditioning fan," the "windshield defrosting and defogging system," the "rear window defrosting and defogging system," and the "heating and air conditioning system."

Further, S5.2.2 states in relevant part:

Identification shall be provided for each function of any automatic vehicle speed system control and any heating and air conditioning system control, and for the extreme positions of any such control that regulates a function over a quantitative range. If this identification is not specified in Table 1 or Table 2, it shall be in word or symbol form unless color coding is used. If color coding is used to identify the extreme positions of a temperature control, the hot extreme shall be identified by the color red and the cold extreme by the color blue.

The primary issue raised by your proposed design is whether, given the substantial distance between the combination multi-function switch/rotary dial and the related video display, the identification provided by means of the video display can be said to meet the standard's requirement that identification for specified controls be provided "on or adjacent to" the control.

I note that, in both the case of the fan control and the heating and air conditioning system controls, one must rely on the video display screen for identification of all of the functions. As previously noted, one turns the fan on or off by pressing on one of the buttons above the dial on the center console, and one turns on the heating and air conditioning system by pressing the toggle switch at the 12 o'clock position on the combination multi-function switch/rotary. In both cases, pressing the button or switch turns the function on, but to adjust the system, the dial must be turned to the right or left. The identification of the function engaged in twisting the dial is shown on the video display screen only, not on the center console.

The Random House Compact Unabridged Dictionary, Special Second Edition, defines "adjacent" as follows:

1. lying near, close, or contiguous; adjoining; neighboring: a motel adjacent to the highway. 2. just before, after, or facing: a map on the adjacent page.

In a June 8, 2000, letter to an unnamed company, we addressed a proposed design where several multi-function push button switches were accompanied by a video screen which depicted the switches and the functions of the switches, which varied depending upon the system selected by the driver. In addressing whether the identification for the push button considered "on or adjacent" to the controls, we stated:

The answer is yes. The video screen that shows the images corresponding to the switches, and identification for the switches, is directly above the switches. Although there is a small unavoidable break between the video screen and the switches, no control, display or other potential source of distraction appears between the video screen and switches. For these reasons, we conclude that the proximity between the switches and the images/identification is so close that they are "adjacent" to each other.

By contrast, for your proposed design, there is no such close proximity between the combination multi-function switch/rotary dial and the related video display. Therefore, they cannot be considered to be "adjacent" to each other.

We note that by implication in our June 8, 2000, letter and as explained further in a February 28, 2001, letter to Mazda, we adopted an especially broad interpretation with respect to the identification of the "extreme positions" of controls that regulate a function over a quantitative range, as applied to controls which rotate indefinitely. We explained our position as follows:

Standard No. 101 does generally require that identification of controls be on or adjacent to the controls. Otherwise, there would be no logical connection between the identification and the control. This is why we made it clear, for the push button switches we addressed in our June 8, 2000, letter, that there needed to be close proximity between the switches and the images/identification.

For traditional controls that regulate a function over a quantitative range, e.g., dials, levers or buttons that move only within a limited range, it makes obvious sense to require identification of the extreme positions to be located on or adjacent to the controls. This is the logical way for a driver to be able to identify the extreme positions.

However, such a requirement does not necessarily make sense for new kinds of controls that regulate a function over a quantitative range, but do not have extreme positions in the traditional sense. For example, dials that can be rotated indefinitely are sometimes associated with a visual display. In a sense, the control consists of both the dial and the display. While it is obviously important that identification of the dial itself be located on or adjacent to the dial, there is no extreme position (in the traditional sense) to identify. And, whether for the system we addressed in our June 8, 2000, letter or for your system, we see no reason to interpret the standard to require the "means by which the driver can know when the extreme positions have been reached" (i.e., the relevant displays) to be on or adjacent to such dials.

We note, however, that if the relevant displays are separated from the dials, there must be sufficient independent identification for both the dial and the separate display that the driver can understand both items. Our review of your proposed design does not indicate any problem in this area. For example, the dial for the fan control is marked with the fan symbol to indicate function and (+) (-) signs to indicate how fan speed is increased and decreased, and the display for fan speed shows the fan symbol to identify function and a triangle to indicate relative speed.

Your system, however, is not covered by this interpretation. It involves controls other than ones which regulate a function over a quantitative range, e.g., the selection of AC subsystem functions. These controls are akin to the switches and the images/identification we discussed in our June 8, 2000, letter and which we concluded were subject to the requirement that identification be provided on or adjacent to the control. Also, in using the multi-function switch/rotary dial for controlling the fan over a quantitative range, there isn't sufficient independent identification for both the dial and the separate display. I also note that the permanent labeling of the combination multi-function switch/rotary dial with the terms "A/C, SET, Radio and BC," is inaccurate, in the sense that that labeling does not apply in situations where the driver has already selected a particular function by means of one of the four toggle switches. While correct identification is provided by means of the non-adjacent display, the actual control is mislabeled at that time.

As is apparent from reading a number of our prior interpretations of Standard No. 101, we have sought to interpret it in a broad manner in light of new technology. There is a limit, however, to how much we can do by interpretation as opposed to conducting rulemaking to facilitate the use of new technology. We recognize that the use of your system may be intuitive to persons who are familiar with computers and/or video games, since use of the multi-function switch/rotary dial is analogous to the use of a computer mouse or video game controller. However, given the current language of Standard No. 101, if a system such as your proposed design is to be permitted, where identification of controls is separated from the controls themselves, it must be done through rulemaking.

We understand that the Alliance of Automobile Manufacturers (which includes Porsche) has recently submitted a petition for rulemaking on this subject and we plan to address this issue further in that context.

If you have any further questions, please feel free to contact Dorothy Nakama of my staff at (202) 366-2992.

Sincerely,

John Womack
Acting Chief Counsel

ref:101
d.1/10/02





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¹ Mr. Kardos orally asked for confidential treatment of the three pages. Mr. Kardos agreed that Porsche would not consider a written description of the computer image or the other two pages as confidential.

ID: 23060ogm

James D. Sillery, Esq.
Mollica, Gall, Sloan and Sillery Co., L.P.A.
35 North College St.
Post Office Drawer 958
Athens, OH 45701





Dear Mr. Sillery:

This responds to your April 25, 2001, letter in which you relate an incident in which the seats of a 1999 Toyota Camry automobile collapsed in a rearward direction after the vehicle was struck from behind. You further indicate that the manufacturer of the vehicle has indicated to you that the seats in question were designed to "yield" in the event of a rear impact in order to absorb the energy that would otherwise be transmitted to the seat occupant in a rear end collision. You are concerned about the potential safety consequences of such a seat collapse for both the occupant of the seat and other occupants sitting to the rear of an occupied seat. Due to your concern, you ask if the issue of seat back strength has been "dealt with" by this agency and what the agency's position is in regard to these seats.

We would like to begin by explaining that the National Highway Traffic Safety Administration (NHTSA) is authorized to issue Federal motor vehicle safety standards that set performance requirements for new motor vehicles and items of motor vehicle equipment. Manufacturers are required to certify that their products conform to our safety standards before they can be offered for sale.

NHTSA is very concerned about seat back strength and performance. The agency's present performance standard for seats, Standard No. 207 (49 CFR 571.207) went into effect for passenger cars in 1968 and was extended to multipurpose vehicles, trucks and buses in 1972. Since that time NHTSA has embarked on a number of actions intended to study the feasibility of upgrading the standard's requirements. In 1989, the agency granted five petitions for rulemaking. Each requested that NHTSA consider certain changes to Standard No. 207. Pursuant to the granting of these petitions, NHTSA published a Request for Comments in the Federal Register (57 FR 54958) in November 1992 asking for input on agency research findings and a proposed research plan. (Responses to the request for comments, which you may find illuminating, can be accessed through the Department of Transportation's electronic docket system at http://dms.dot.gov/ under docket number 4064.) Since the publication of the Request for Comments, NHTSA has performed a study of the relationship between seat performance and injuries and conducted research aimed at gaining a greater understanding of seat performance and the means for improving seat performance ⁽¹⁾.

We note that your letter asks for the agency's position on "these kinds of seats." We assume that in referring to "these kinds of seats" that you are asking for NHTSA's view on seats that deform or "collapse" in a rearward direction in a serious rear impact and whether seats that deform or "yield" in a rear impact are desirable.

For many years, there has been considerable debate among automotive safety experts regarding the level of seat back stiffness. The issues surrounding this debate are quite complex and the agency is assessing the merits of several options related to the modification of the seat standard. We anticipate issuing a Notice of Proposed Rulemaking to upgrade this standard next spring. However, as the agency's proposal has not yet been released, we cannot provide you with more specific information at this time.

I hope this information is helpful to you. If you have any questions or need further information, please feel free to contact Otto Matheke of this office at

(202) 366-3820.

Sincerely,

John Womack
Acting Chief Counsel

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d.10/25/01





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1. ¹( http://www.nhtsa.dot.gov/cars/rules/crashworthy/Seats/index.html)
( http://www-nrd.nhtsa.dot.gov/departments/nrd-01/summaries/B0119.html)

ID: 23064.rbm

Mr. Kenneth Conaway
Adaptive Mobility Inc.
7050 Guion Road
Indianapolis, IN 46268





Dear Mr. Conaway:

This responds to your correspondence regarding the National Highway Traffic Safety Administration's (NHTSA) final rule on vehicle modifications for individuals with disabilities. You ask for clarification of the statutory prohibition against making required safety equipment inoperative. You are particularly interested in whether a modifier may alter a vehicle that has already been purchased by the individual seeking to have the vehicle modified.

By way of background, NHTSA administers a statute requiring that motor vehicles manufactured for sale in the United States or imported into the United States be manufactured so as to reduce the likelihood of motor vehicle crashes and of deaths and injuries when crashes do occur. That statute is the National Traffic and Motor Vehicle Safety Act of 1966 ("Vehicle Safety Act") (recodified at 49 U.S.C. 30101, et seq.).

One of the agency's most important functions under that Act is to issue and enforce the Federal Motor Vehicle Safety Standards (FMVSSs). These standards specify safety performance requirements for motor vehicles and/or items of motor vehicle equipment. Manufacturers of motor vehicles must certify compliance with all applicable safety standards and permanently apply a label to each vehicle stating that the vehicle complies with all applicable FMVSSs. Alterers of motor vehicles are companies that modify a completed vehicle prior to first retail sale. Alterers must determine whether those modifications could negate the vehicle manufacturer's certification of compliance and, if so, must certify the vehicle as to those safety standards that were affected by the modification.

The Vehicle Safety Act also prohibits manufacturers, distributors, dealers, or motor vehicle repair businesses from knowingly making inoperative any part of a device or element of design installed on or in a motor vehicle or motor vehicle equipment that is in compliance with any applicable FMVSS (49 U.S.C. 30122). If NHTSA determines that a business has violated the make inoperative provision, it may assess a civil penalty in the amount of $5,000 per violation (not to exceed $15,000,000 in the aggregate). NHTSA may, through regulation, exempt a person or business from the prohibition if it decides that an exemption is consistent with motor vehicle safety and the Vehicle Safety Act.

On February 27, 2001, NHTSA published a final rule setting forth a limited exemption from the make inoperative prohibition for businesses or individuals who modify vehicles for persons with disabilities (66 Federal Register 12638; Docket No. NHTSA-01-8667). This exemption is codified in 49 CFR Part 595. Only portions of some FMVSSs are covered by the exemption. Additionally, the exception only applies to modifications made after the first retail sale of the vehicle.

How and if an FMVSS applies to a particular business is dependent upon the product or services that the business provides. Producers of equipment that is used in a system designed to comply with a particular FMVSS are component suppliers and would not be directly subject to the requirements of the standard, ⁽¹⁾ although any manufacturer or alterer using the product would be. Final stage manufacturers or alterers of vehicles that modify a vehicle system that the previous-stage manufacturer had certified as compliant must certify that the vehicle, as finally manufactured or altered, complies with all applicable FMVSS. Thus, each vehicle must remain in compliance with all applicable safety standards until the time of its first retail sale. Additionally, vehicle modifiers, i.e., businesses that modify a vehicle after first retail sale, may not modify a vehicle in such a way as to negate the vehicle's compliance with any applicable FMVSSs for which there is no exemption, although the modifier is not required to certify compliance with all applicable standards.

As noted above, the prohibition against making required safety equipment inoperative applies to "manufacturers, distributors, dealers, and motor vehicle repair businesses." A motor vehicle repair business is defined in 49 U.S.C. 30122(a) as "a person holding itself out to the public to repair for compensation a motor vehicle or motor vehicle equipment." This term includes businesses that receive compensation for servicing vehicles without malfunctioning or broken parts or systems by adding or removing features or components to or from those vehicles or otherwise customizing those vehicles. (49 CFR 595.4) Thus, unless a modification is covered by the Part 595 exemption, any type of modification to a vehicle that has been sold to a retail customer that negates compliance with a FMVSS is prohibited, even if the modifications are made pursuant to the vehicle owner's instructions.

We note that an individual who modifies his or her own personal vehicle is not subject to the Federal prohibition against making required safety equipment inoperative. However, we recommend that owners not take actions that adversely affect their safety. Moreover, any individual who wishes to modify his or her vehicle should first verify that there is no prohibition against such modifications under the laws of the individual's state.

I hope the addresses your concerns. Please contact Rebecca MacPherson of my staff at this address or at (202)366-2992 should you have any additional questions about this matter.

Sincerely,

John Womack
Acting Chief Counsel
ref:595
d.3/1/02





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¹ As a practical matter, component suppliers often assume some responsibility to the vehicle manufacturer for the compliance of their products to applicable FMVSSs. This is done through a contractual relationship between the supplier and the vehicle manufacturer that certifies compliance.

ID: 23082.jeg

Granta Y. Nakayama, Esq.
Kirkland & Ellis
655 Fifteenth Street, NW
Washington, DC 20005





Dear Mr. Nakayama:

This responds to your letter of July 23, 2001, concerning whether Ferrari S.p.A. and Maserati S.p.A. qualify for the small volume manufacturer (SVM) implementation schedule in the final rule for advanced air bags. You provided information with that letter, and in a previous meeting, to supplement information provided in a letter sent by Mr. Mark A. Recchia of Fiat Auto R&D, U.S.A. You asked about this matter in light of the ownership relationships between these companies and with Fiat Auto S.p.A. and General Motors. As discussed below, it is our opinion that Ferrari S.p.A. and Maserati S.p.A. would be considered separately, both with respect to each other and with respect to Fiat Auto S.p.A. and General Motors, for purposes of qualification for the SVM implementation schedule.

The National Highway Traffic Safety Administration's new requirements for advanced air bags are included as part of Standard No. 208, Occupant Crash Protection. Paragraph S14.1(d) of that standard, as amended by the final rule we published in the Federal Register (65 FR 30680) on May 12, 2000, provides that "(v)ehicles that are manufactured by a manufacturer that produces fewer than 5,000 vehicles worldwide annually" are subject to a special implementation schedule. (Emphasis added.)

I note that the Coalition of Small Volume Automobile Manufacturers (COSVAM) submitted a petition for reconsideration asking us to expand that definition to manufacturers of no more than 10,000 vehicles per year. Alternatively, it petitioned that the 5,000 vehicle cap be limited to vehicles sold in the United States per year or that the 5,000 vehicle cap be averaged over the phase-in period. Under the averaged proposal, if a manufacturer produced more than 5,000 vehicles in a single year, it could still take advantage of the exclusion as long as the average of production during the phase-in was not more than 5,000 vehicles per year.

We will respond to the COSVAM petition as part of our general response to petitions for reconsideration of the May 2000 final rule for advanced air bags. We expect to issue a response in the near future. I observe that, however we respond to the requests of COSVAM, it will not affect the primary issue raised by your letter: whether Ferrari S.p.A. and Maserati S.p.A. would be considered separately, with respect to each other and with respect to Fiat Auto S.p.A. and General Motors, for purposes of qualification for the SVM implementation schedule

According to the information provided by Mr. Recchia, the annual worldwide production of Ferrari cars themselves is and will remain well within 5,000 units. However, the annual worldwide production of Maserati S.p.A., which is wholly owned by Ferrari S.p.A., may exceed 5,000 units in the next few years. Mr. Recchia also indicated that Ferrari S.p.A. is 87 percent owned by Fiat S.p.A., which owns 80 percent of Fiat Auto S.p.A. and 5.1 percent of General Motors. Both Fiat Auto S.p.A. and General Motors are very large auto manufacturers. Mr. Recchia also noted in a telephone conversation with Edward Glancy of this office that it is possible that Ferrari cars and Maserati cars could be imported into the United States by the same importer during the time period in question.

You provided information showing that, notwithstanding the fact that Maserati S.p.A. is wholly owned by Ferrari S.p.A., they are two operationally independent companies with different products. In an Annex to your letter, you indicated that the separate nature of the two companies is exhibited by the different and dedicated products, development location and resources, production location and resources, and headquarter location and resources.

After considering the materials provided by Mr. Recchia and by you, it is our opinion, for purposes of considering whether a company qualifies for the SVM implementation schedule under paragraph S14.1(d) of Standard No. 208, that Ferrari S.p.A. and Maserati S.p.A. are separate manufacturers, both with respect to each other and with respect to Fiat Auto S.p.A. and General Motors. This opinion reflects several considerations.

First, Ferrari S.p.A. and Maserati S.p.A. are separate corporations, are operationally independent and are separate manufacturers for most purposes.

Second, the vehicles of related manufacturers are not ordinarily grouped together for purposes of determining compliance with phase-ins of new safety standards. We note that this is in contrast to determinations of compliance with fuel economy standards, where vehicles of related manufacturers are grouped together. However, the grouping of vehicles of related manufacturers for purposes of fuel economy standards is done pursuant to an explicit statutory provision.

Third, while it is possible that Ferrari cars and Maserati cars could be imported into the United States by the same importer, we established the special provision in paragraph S14.1(d) for SVMs in light of the technical challenges faced by these manufacturers given the complexity of the new advanced air bag requirements. Ferrari S.p.A. and Maserati S.p.A. are separate European manufacturers, and the use of a common importer would not affect the challenges these companies face in meeting the requirements for advanced air bags.

Finally, the ownership relationships between these companies and with Fiat Auto S.p.A. and General Motors are longstanding and do not represent any "gamesmanship" to avoid the phase-in requirements.

We would caution that this interpretation reflects specific consideration of the factors underlying paragraph S14.1(d) of Standard No. 208 and should not be viewed as providing guidance for interpreting any other regulatory provisions.

If you have any further questions, please feel free to call Edward Glancy of my staff at (202) 366-2992.

Sincerely,

John Womack
Acting Chief Counsel

ref:208
d.8/22/01