Paul Jackson Rice, Esq.
Arent Fox Kintner Plotkin & Kahn, PLLC
1050 Connecticut Avenue, NW
Washington, DC 20036-5339

Re: Request for Interpretation

Dear Mr. Rice:

This is in reply to your letter of May 2, 2001, requesting an interpretation on behalf of your client, Feel Good Cars Inc. (FGC) of Ontario. Specifically, you would like to know whether "under Federal law and applicable NHTSA regulations the FGC Renault Dauphine would be considered a restored antique vehicle excepted under 49 U.S.C. Sec. 30112(b)(9) or a newly manufactured vehicle subject to current applicable motor vehicle safety standards."

To assist us in our reply, you enclosed a copy of a "Recommendation Report" prepared for FGC and titled "Restoration and Conversion of Renault Dauphines to the Optional 1959-1961 'Henney' Electric Propulsion Package" (the Report) dated December 4, 2000, and a copy of a letter from Transport Canada dated March 20, 2001, advising that the FGC vehicle would be an "antique vehicle" under Canadian law, and therefore outside the Motor Vehicle Safety Act (Canada).

We have no definition of "restored antique vehicle." Section 30112(b)(9), which you cite, allows importation of "a motor vehicle that is at least 25 years old" without the need to conform the vehicle to the Federal motor vehicle safety standards that may have applied to it as of the date of its manufacture. Thus, the issue is whether we can regard the FGC Renault Dauphine as a motor vehicle that is more than 25 years old.

I am enclosing a copy of our letter of September 29, 1999, to John Harland of HarLand Rover Restorations. Mr. Harland described the modifications he made to Land Rovers as "restorations." We defined a restored vehicle as one that has been returned to its "former, original, normal, or unimpaired condition." We concluded that Mr. Harland's operations were sufficiently extensive that he was not a restorer but a "manufacturer" of motor vehicles, and that "the extent of disassembly of the original vehicle, the substitution of equipment not used in the original vehicle such as the engine and frame, and reassembly with certain items of new equipment" resulted in a new vehicle, one that could not be regarded as 25 years or older.

Similarly, given the overall operations being conducted by Feel Good Cars, including but not limited to the extent of disassembly of the original vehicle, the substitution of a new and different type of power plant, and reassembly with certain items of new equipment, we do not regard these cars as 25 years or older.

You may also wish to call your client's attention to the possibility of obtaining a temporary exemption for its low-emission motor vehicle (49 CFR 555.6(b)).

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

Sincerely,

John Womack
Acting Chief Counsel

ref:571
d.8/23/01

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

Dear Mr. Conaway:

This responds to your request for a definition of the terms "load carrying capacity" and "available load capacity" as used in 49 CFR 595.7(e)(5). This section sets forth certain disclosure requirements related to vehicle modifications made for a person with a disability. Among the requirements set forth in this section is a statement of the load carrying capacity of the vehicle if it has been reduced by more than 100 kilograms (220 pounds). I regret the delay in responding.

By way of background, the National Highway Traffic Safety Administration (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. We refer to that statute as the Vehicle Safety Act. It is codified at 49 U.S.C. 30101, et seq.

One of the agency's functions under the Vehicle Safety Act is to issue and enforce 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 and providing the vehicle gross vehicle weight rating (GVWR).

NHTSA's regulations impose certain requirements on those who alter in certain ways a vehicle that has been previously certified by a manufacturer but not yet sold in good faith for purposes other than resale. Alterers are considered to be manufacturers and are responsible for ensuring that the vehicle meets all applicable federal safety standards when delivered to the first retail customer. Alterers must determine whether those modifications could affect the vehicle manufacturer's certification of compliance and, if so, must apply a label adjacent to the original manufacturer's certification label stating that the vehicle, as altered, conforms with all applicable standards.

Those who modify a completed vehicle after the first retail sale are considered to be "modifiers." The Vehicle Safety Act 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 federal motor vehicle safety standard. NHTSA may assess a civil penalty to enforce this provision. NHTSA may also, 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, subpart C. Only portions of some Federal motor vehicle safety standards are covered by the exemption.

An underlying premise of Part 595 is that the individual for whom the modifications were made is unlikely to realize that the vehicle, as modified, may no longer meet all applicable FMVSS and may have a different load carrying capacity than listed in the owner's manual or on a tire placard. These vehicle changes could have an effect on the overall performance of the vehicle. Accordingly, we determined that vehicle modifiers who decide to take advantage of the exemption set forth in 49 CFR Part 595 should provide the customer with certain safety information and place a permanent label on the vehicle. The language for the label is set out in 49 CFR 595.7(d), and a detailed breakdown of the required information is contained in 49 CFR 595.7(e). One of the required pieces of information is the vehicle's load carrying capacity when it has been reduced by 100 kilograms (220 pounds) or more.

This requirement was intended to address circumstances in which the cargo carrying capacity has been reduced as a result of the modification. The term GVWR is defined in 49 CFR 571.3 as "the value specified by the manufacturer as the loaded weight of a single vehicle." The GVWR informs vehicle owners how heavily the vehicle may be safely loaded. It also affects the vehicle's loading and other test conditions for the performance tests to ascertain whether the vehicle complies with applicable safety standards.

The only express regulatory limitation on the GVWR that manufacturers may assign to their vehicles is set forth in 49 CFR 567.4(g)(3), which provides that the assigned GVWR "shall not be less than the sum of the unloaded vehicle weight, rated cargo load, and 150 pounds times the vehicle's designated seating capacity." "Unloaded vehicle weight" is defined in 49 CFR 571.3 as "the weight of a vehicle with maximum capacity of all fluids necessary for operation of the vehicle, but without cargo, occupants, or accessories that are ordinarily removed from the vehicle when they are not in use." Although the term "rated cargo load" is not defined by regulation, generally it is the GVWR of the vehicle minus the combined weight of the occupied designated seating positions (150 pounds times the total number of designated seating positions) and the unloaded vehicle weight.

Alterers must also determine whether their modifications affect the manufacturer's stated GVWR, gross axle weight rating (GAWR), and vehicle type. If such a change has been made, the alterer must specify the new GVWR, GAWR, or vehicle type in a manner consistent with the capability of the vehicle to comply with applicable standards and operate at higher weight rating and/or as a different type of vehicle. NHTSA expects both manufacturers and alterers to assign GVWR and GAWRs that reflect the manufacturer's or alterer's good-faith evaluation of how the vehicle's braking, load bearing items (including tires), suspension, steering, and drive train components will react to the vehicle's weight, size, cargo-carrying capacity and intended use.

Although the term "load carrying capacity" was not specifically defined in the February 2001 final rule, the term was intended to convey the same meaning as vehicle capacity weight, as defined in FMVSS No. 110, Tire selection and rims. "Vehicle capacity weight" is defined in that standard as the rated cargo and luggage load plus 68 kilograms (150 pounds) times the vehicle's designated seating capacity. Simply stated, a vehicle's load carrying capacity is its GVWR minus its unloaded weight. Likewise, the term "available load capacity" means that load carrying capacity that remains after the modifications are completed.

The number of designated seating positions used to determine the load carrying capacity may not be the same as the number of designated seating positions that were in the vehicle when the vehicle manufacturer or alterer assigned the GVWR. In many instances, one or more seating positions may be removed in order to make the modifications needed to accommodate a particular disability. When calculating the load carrying capacity under 49 CFR 595, if an original designated seating position is replaced by a wheelchair retention device that will be used to secure an occupied wheelchair, that position replaces the original designated seating position, i.e., 150 pounds must be allocated for that seating position but the weight of the removed seat may be deducted. If the original designated seating position is not replaced by another seat or a wheelchair retention device, it need not be considered as a designated seating position when calculating the load carrying capacity, and the weight of the removed seats, or other equipment, need not be considered.

The installation of a wheelchair retention device to restrain an unoccupied wheelchair as cargo does not qualify as a designated seating position, and a modifier would not be required to allocate a 150 pound capacity for that position. The vehicle modifier may include the weight of the wheelchair as part of the load carrying capacity. However, the modifier is required to tell the owner of the vehicle whether the weight of the wheelchair has been included when determining the reduced load carrying capacity and when specifying what available load capacity remains. Moreover, since wheelchair weights can vary by hundreds of pounds between manually operated and self-propelled models, a modifier must state the weight it used for any wheelchair included in its calculation of available load capacity. As discussed in the February 2001 final rule, the vehicle modifications contemplated by 49 CFR 595, subpart C are limited to modifications made for a specific customer. Accordingly, the customer should be able to provide the modifier with the weight of any wheelchairs that they expect the vehicle to transport.

Should you require any additional information or assistance, please contact Rebecca MacPherson, of my staff, (202) 366-2992 or at the address given above.

Sincerely,

Jacqueline Glassman
Chief Counsel

ref:595
d.4/25/02

Mr. Bing Kam
6902 Midhurst
Memphis, TN 38119

Dear Mr. Kam:

This is in reply to your letter of May 7, 2001, "seeking approval of pending patent title 'Automatic Warning Signal System for Vehicles,'" as supplemented by your letter of June 28, 2001. We have no authority to approve or disapprove items of motor vehicle equipment such as your invention. We can, however, advise you as to the legality of your patented system under the laws that we administer.

Your automatic warning signal system (the System) is intended to reduce rear end collisions by providing an early warning signal to following drivers. According to the Abstract of your patent (US 6,225,918 BI, May 1, 2001), the System produces "a warning signal which includes activating the brake light or lights of the leading vehicle without the actual application of the brakes to caution the driver of the following vehicle."

Federal Motor Vehicle Safety Standard No. 108, Lamps, Reflective Devices, and Associated Equipment, and 49 U.S.C. 30122 are the Federal laws and regulations that are determinative of the legality of the System. A motor vehicle must be manufactured to comply with Standard No. 108. Paragraph S5.5.4 of Standard No. 108 requires the stop lamps to be activated upon application of the service brakes. We view this requirement as meaning that stop lamps can only be activated in this manner. Because the System activates the stop lamps without the brakes being applied, or downshifting, or retarders, it would not be legal for the System to be used as original equipment on motor vehicles. The System is also subject to the restrictions of S5.1.3 of Standard No. 108. This paragraph prohibits the installation of accessory equipment that impairs the effectiveness of lighting equipment required by Standard No. 108. We regard activation of the stop lamps without commensurate braking as impairing the effectiveness of the stop lamps because this activations does not indicates an intent to slow or stop the vehicle which is the purpose of the stop lamps.

Because the System is not legal as original equipment, there are Federal restrictions on it in the aftermarket as well. Installation of the System on a vehicle would create a noncompliance with Standard No. 108, specifically S5.1.3 and S5.5.4. Section 30122 prohibits manufacturers, dealers, distributors, and motor vehicle repair businesses from "making inoperative" equipment such as stop lamps that are installed on a vehicle pursuant to a Federal motor vehicle safety standard. However, this prohibition does not extend to acts by the vehicle owner. Nevertheless, after reviewing your patent, we believe that a purchaser of the System would require the technical services of a manufacturer, distributor, dealer, or motor vehicle repair business to install the System. Even if a vehicle owner installs the System, the legality of its use must be determined under the laws of each state in which the vehicle is registered and used. We are unable to provide you with advice on state laws.

We receive numerous letters from inventors such as yourself who seek to improve traffic safety, and we appreciate your concern. Most of these ideas have an appealing intuitive basis but are not supported with data demonstrating their efficacy. I am enclosing copies of a statement we published on November 4, 1998 (63 FR 59482), discussing the agency's policy regarding evaluation of new signal lighting ideas with the thought that it may be of interest to you.

Sincerely,

John Womack
Acting Chief Counsel

Enclosure
ref:108
d.7/6/01

Mr. William E. Lawler
Manager, Specifications
Indiana Mills & Manufacturing, Inc., (IMMI)
18881 U.S. 31 North
P.O. Box 408
Westfield, IN 46074-0408

Dear Mr. Lawler:

This responds to your request that the National Highway Traffic Safety Administration interpret the metric conversion of one inch in Standard No. 209 Seat Belt Assemblies, at S4.3(j)(1), as 25.4 millimeters (mm), not the specified 25 mm. You do not explain why you prefer 25.4 mm.

The 25 mm measurement was adopted as part of an initiative to convert English measurements in the Federal motor vehicle safety standards to metric measurements. We proposed to convert one inch in S4.3(j)(1) of Standard No. 209 to 25 mm, in accordance with the principle that we generally favor equivalent, not exact conversions. We adopted the 25 mm measurement after publishing notice of the proposed conversion in the Federal Register (April 21, 1997; 62 FR 19253), and receiving comment on the proposal. The 25 mm measurement is clearly specified in Standard No. 209. We cannot interpret the provision as 25.4 mm.

We note, however, that we are considering rulemaking to amend S4.3(j)(1). We will consider including a proposal to change the 25 mm value to 25.4 mm.

Please contact us if you have further questions. For information about metric conversion principles, please feel free to contact Ms. Dorothy Nakama of my staff at (202) 366-2992. If you have questions about Standard No. 209, you may contact Mr. Otto Matheke at the same telephone number.

Sincerely,

John Womack
Acting Chief Counsel

Enclosure
ref:209
d.11/16/01

The Honorable Todd R. Platts
Member, U.S. House of Representatives
2209 East Market Street
York, PA 17402

Dear Congressman Platts:

Thank you for your letter of April 25, 2001, to the U.S. Department of Transportation's (DOT) Office of Congressional Affairs on behalf of your constituent,

Mr. Dean Thoman, of Glen Rock, PA. Mr. Thoman's church operates a small private school that recently purchased a used 15-passenger van to transport school children for school-related activities. After the purchase, Mr. Thomas found information leading him to believe "it was against federal and State law to use this van to transport school age children for any school activity. " Mr. Thoman then attempted to return the van to the dealer but was refused. Mr. Thoman sought your office's assistance in returning the van and getting a refund. You have asked DOT to review Mr. Thoman's situation. Because you seek information about laws administered by the National Highway Traffic Safety Administration (NHTSA), I have been asked to respond to you.

Some background information may be helpful. NHTSA is authorized to issue and enforce Federal motor vehicle safety standards (FMVSS) applicable to new motor vehicles. Our statute at 49 U.S.C. '30112(a) requires any person selling or leasing a new vehicle to sell or lease a vehicle that meets all applicable standards. Accordingly, persons selling or leasing a new "school bus" must sell or lease a vehicle that meets the safety standards applicable to school buses. Our statute at 49 U.S.C. '30125 defines a "school bus" as any vehicle that is designed for carrying a driver and more than 10 passengers and which, NHTSA decides, is likely to be "used significantly" to transport "preprimary, primary, and secondary" students to or from school or related events. ⁽¹⁾ This definition was enacted in 1974, as part of a comprehensive effort by Congress to increase school bus safety. By regulation, the capacity threshold for school buses corresponds to that of buses -- vehicles designed for carrying more than ten (10) persons.

The great majority of vehicles used to transport students fall within the definition of "school bus." More specifically, any new "bus" sold to a school district, or to a private school, is considered to be a "school bus" when sold for pupil transportation, and as such must comply with the school bus safety standards. A dealer or distributor who sells a new bus to a school district or private school that does not meet school bus standards is subject to penalties under the statute.

Under Federal law, a school district or private school can be sold a used bus (i.e., a 15-passenger van), even though the vehicle could not be sold as a bus when new. This is because NHTSA's requirement to sell vehicles that meet applicable safety standards does not apply to the sale of a motor vehicle "after the first purchase of the vehicle ... in good faith other than for resale," i.e., to sales of used vehicles. Nonetheless, because school buses are one of the safest forms of transportation in this country, we strongly recommend that all buses that are used to transport school children be certified as meeting NHTSA's school bus safety standards.

Although we cannot assist Mr. Thoman in his efforts to return the 15-passenger van to the dealer for a refund, Mr. Thoman may wish to show this letter and enclosures to the dealer. This will put the dealer on notice that a dealer selling a 15-passenger van for school transportation could be subject to liability in the event of a crash.

Our belief that vehicles providing the safety of school buses should be used whenever transporting children in buses is shared by the National Transportation Safety Board (NTSB). At a June 8, 1999, public meeting, the NTSB issued the enclosed abstract of a special investigative report on nonconforming buses. The NTSB issued the report after investigating four crashes in 1998 and 1999 in which 9 people were killed and 36 injured when riding in "nonconforming buses." NTSB defines "nonconforming bus" as a "bus that does not meet the FMVSSs specific to school buses." Most of the victims, including eight of the fatalities, were children.

I hope this information is helpful. If you have any further questions, please contact me at (202) 366-9511.

Sincerely,

John Womack
Acting Chief Counsel

Enclosures
ref:VSA#571.3
d.6/6/01

1. ¹ NHTSA has consistently interpreted "related events" to include school-sponsored field trips and athletic events.

Mr. Edward M. Kronk
Butzel Long, PC
Suite 500
150 West Jefferson
Detroit, MI 48226-4430

Dear Mr. Kronk:

This is in reply to your letter of April 26, 2001, asking three questions about the relationship of Federal Motor Vehicle Safety Standard (FMVSS) No. 108 to lighting equipment that may be marketed as being for off-road use but that is capable of being installed on-road vehicles and used on the public highways. You remarked that "there is interest in the automotive enthusiast community in using so-called 'European-styled' or 'E-Code' Headlamps as replacement headlamps," and that they are not certified as complying with Standard No. 108. Your questions, and our responses, are set forth below.

"1. May automotive headlamps that do not comply with FMVSS 108 be imported and sold in the US for "off-road" use on "off-road" vehicles?

"Off-road" and "off-road vehicles" are not terms defined in Standard No 108 or in any other regulation or law that we administer, and have no legal meaning. You identify the headlamps as "replacement headlamps." In our view, S5.8, Replacement equipment, of Standard No. 108 requires that any motor vehicle replacement headlamp that is offered for sale in the United States must comply with the same requirements as are applicable to the original equipment that it replaces. I enclose letters on related subjects that we sent to Mitch L. Williams of Hella on July 17, 1998, and to Tobin Tracy of Clr Alt Accessories on April 17, 2001. We informed Mr. Tracy that "any item of motor vehicle lighting equipment manufactured to replace lighting equipment that is required on a new vehicle by Standard No. 108 must itself comply with Standard No. 108," and that such a term as "off-road" has no exclusionary meaning under Federal law.

"2. Does the answer to question 1 change if, despite the express intent of the manufacturer and seller of the headlamps that they be used only "off-road," they are capable of being installed and used "on-road" in conventional "on-road" vehicles?

As noted above, if the headlamps are capable of being installed and used in motor vehicles subject to the Federal motor vehicle safety standards (i.e., "conventional 'on-road' vehicles"), they are motor vehicle headlamps that must comply with Standard No. 108 in order to be imported or sold regardless of the "intent" of the importer or seller. Even if we assume the best of intentions, we recognize that a seller has no control over the use of a product after it is sold.

"3. If the importation and sale of such noncompliant headlamps intended for off-road use only is permitted, what packaging and labeling requirements, if any, apply to their importation and sale?

As we have indicated in response to question 2, such lamps may not be imported or sold regardless of their packaging or labeling.

I hope that this answers your questions.

Sincerely,

John Womack
Acting Chief Counsel

Enclosures
ref:108
d.6/28/01

Dietmar K. Haenchen, Process Leader
Safety Affairs and Vehicle Testing
Volkswagen of America, Inc.
Mail Code 2A02
3800 Hamlin Road
Auburn Hills, MI 48326

Dear Mr. Haenchen:

This responds to your letter to the National Highway Traffic Safety Administration (NHTSA), concerning Standard No. 201, Head Impact Protection. You are particularly concerned about the applicability of the upper interior head impact requirements of Standard No. 201 as they apply to vehicles built in two or more stages.

You explain that Volkswagen plans to produce incomplete vehicles and supply them to final stage manufacturers. According to your letter, Volkswagen believes that these vehicles would be governed by the certification requirements of 49 CFR Part 568 - Vehicles manufactured in two or more stages. In particular, your company observes that Section 568.6(a) of Part 568 permits a final stage manufacturer to complete a vehicle such that it conforms to the Federal motor vehicle safety standards (FMVSS) in effect on the date of manufacture of the incomplete vehicle, or the date of final completion, or a date in between those dates. Your letter also notes that Section 568.6(a) further states that the foregoing requirements shall be superseded by any conflicting provisions of a standard that applies by its terms to vehicles manufactured in two or more stages.

Volkswagen believes that S6.14 of Standard No. 201, Occupant protection in interior impact, which sets out a separate "phase-in" compliance date for final stage manufacturers and alterers, does not "conflict" with the requirements of Section 568.6(a). Therefore, Volkswagen argues that final stage manufacturers who complete vehicles after the September 1, 2002 compliance date contained in S6.14 of Standard No. 201, may, if they choose to, comply with the standards in effect on the manufacturing date of the incomplete vehicle, the date it is finally completed or a date between these two dates. Your letter notes that Standard No. 201 contains a separate phase-in schedule establishing a distinct compliance date that applies directly to multi-stage vehicles. However, your company contends that nothing in Standard No. 201 indicates that NHTSA intended for this phase-in schedule to supersede the provisions of Section 568.6(a) of Part 568. Your letter points out that when the agency created a separate phase-in for multi-stage manufacturers in recent amendments to Standard No. 208, it clearly indicated in the preamble to the interim final rule that this phase-in did not permit the selection of alternate certification dates under Section 568.6(a). Volkswagen argues that the lack of similar language in the preamble to Standard No. 201 establishes that NHTSA intended that Standard No. 201 allow multi-stage manufacturers to choose a compliance date under paragraph 568.6(a).

The agency does not agree with your interpretation.

It is our view that the phase-in provisions of Standard No. 201, which explicitly provide that vehicles manufactured in two or more stages must meet the head protection requirements on September 1, 2002, control the applicable compliance requirements. Section 586.6(a) states:

(a) Each final-stage manufacturer shall complete the vehicle in such a manner that it conforms to the standards in effect on the date of manufacture of the incomplete vehicle, the date of final completion, or a date between those two dates. This requirement shall, however, be superseded by any conflicting provisions of a standard that applies by its terms to vehicles manufactured in two or more stages.

Section 568.6(a) provides final stage manufacturers with the choice of three dates for complying with applicable Federal motor vehicle safety standards unless a particular standard provides otherwise. Under your interpretation of Standard No. 201 and Section 568.6(a), a final stage manufacturer could complete a vehicle on September 2, 2002 and avoid meeting the upper interior head protection requirements of Standard No. 201 by complying with the less stringent provisions of the Standard that were in effect when the incomplete vehicle was built or a date between the manufacture date of the incomplete vehicle and before September 1, 2002.

Standard No. 201 directly addresses the responsibilities of manufacturers of multi-stage vehicles in regard to compliance with the upper interior head protection requirements. S6.1.4 of Standard No. 201 states as follows:

S6.1.4 Phase-in Schedule #4 A final stage manufacturer or alterer may, at its option, comply with the requirements set forth in S6.1.4.1 and S6.1.4.2.

S6.1.4.1 Vehicles manufactured on or after September 1, 1998 and before September 1, 2002 are not required to comply with the requirements specified in S7.

S6.1.4.2 Vehicles manufactured on or after September 1, 2002 shall comply with the requirements specified in S7.

This language indicates that S6.1.4 of Standard 201, by its terms, establishes a single compliance date for multi-stage vehicles. The existence of this single date directly conflicts with the options found in Section 568.6(a).

Your letter also contrasts the language contained in the preamble to the May 2000 interim final rule amending Standard No. 208 with the notices establishing the upper interior head protection requirements of Standard No. 201. Volkswagen notes that the preamble to the amendments to Standard No. 208 explains that Section 568.6(a) does not apply to those amendments while the preamble to the upper interior head protection final rule does not. This, in Volkswagen's view, indicates that Section 568.6(a) does not conflict with Standard No. 201.

The upper interior head protection requirements of Standard No. 201 were established by a final rule published in the Federal Register on August 18, 1995 (60 FR 43031). The preamble to this final rule addressed the issue of compliance by final stage manufacturers on page 43049:

NHTSA also has decided to allow manufacturers of vehicles manufactured in two or more stages to delay compliance until the final year of the phase-in. Since final stage manufacturers and alterers have no control over the year of the phase-in in which a particular vehicle will be certified as complying with the new requirements, NHTSA is allowing these manufacturers until the final year of the phase-in to certify that their vehicles meet the new requirement. NHTSA has taken this approach previously with the phase-ins for Standards Nos. 208. However, NHTSA is not allowing additional leadtime beyond the end of the phase-in, because individual components can be tested outside the vehicle. This will enable a final stage manufacturer or an alterer to verify that the changes it intends to make to a vehicle's compliant interior will not affect the vehicle's compliance.

This language indicates that the agency gave special consideration to the needs of multi-stage vehicle manufacturers, extended the phase-in to accommodate their needs, and established a single date by which these manufacturers must meet the new requirements. Although the preamble did not explicitly state that the agency's choice of single compliance date was intended to forestall application of Section 568.6(a), the decision to do so is implicit in the selection of a single compliance date - particularly when this date is at the conclusion of an extended phase-in.

In sum, the agency believes that Standard No. 201's provisions regarding multi-stage manufacturers establish a single compliance date that directly conflicts with Section 568.6(a). To the extent that such an examination is warranted, NHTSA also believes that the preamble to the final rule establishing the upper interior head protection requirements supports the agency's position.

I hope this information is helpful. If you have any further questions, please feel free to call Otto Matheke of my staff at (202) 366-2992.

Sincerely,

John Womack
Acting Chief Counsel

ref:201
d.10/11/01

Ms. Wendy Cohen
Assistive Technology Specialist
The State Education Department
VESID, 109 S. Union St.
Rochester, NY 14607

Dear Ms. Cohen:

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 whether the results of front, side and rear crash tests conducted on modified Grand Caravan vehicles with a 119 inch wheelbase are valid for a similarly modified Dodge Caravan with a 113 inch wheelbase. Your question is in connection with a vehicle modified to accommodate a person with a disability, and appears to raise issues regarding continued compliance with Federal Motor Vehicle Safety Standard No. 301, Fuel system integrity (FMVSS No. 301).

NHTSA is unable to answer your question. 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 business that makes the modifications. As noted above, the critical factor is whether the vehicle, as modified, would pass a FMVSS No. 301 crash test. We do note that, even though no changes were made to the frame or materials of construction, differences in the location of the fuel tank and the fuel fill and supply lines can affect crash test results. Any such differences could prevent a vehicle manufacturer, alterer, or modifier from relying on existing test data, especially in the case of the side impact test, where the impact target zone is based on the driver's seating position. A vehicle with a shorter wheelbase is likely to have its fuel tank and fuel fill line closer to the side impact zone than a similar long-wheelbase vehicle. We urge vehicle modifiers to exercise reasonable care including working with the vehicle manufacturer to determine whether a potential modification would take the vehicle out of compliance.

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. The statute ("Vehicle Safety Act") is codified 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.

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 at 49 CFR Part 595, which explains the extent of the exemption and provides parameters that repair businesses must stay within when performing modifications to a vehicle after first retail sale in order to take advantage of the exemption. Part 595 lists in section 595.7(c) the FMVSSs for which modifications are permitted to enable a person with a disability to operate, or ride as a passenger in, the motor vehicle even though the modification may make inoperative a part of a device or element of design installed in or on the motor vehicle in compliance with a FMVSS.

Persons with disabilities often purchase vans or minivans to meet their particular needs. Crash testing is typically used by the original vehicle manufacturers to certify that these vehicles meet the requirements of FMVSS No. 204 (gross vehicle weight rating (GVWR) of 10,000 lb or less and unloaded vehicle weight of 4,000 lb or less), FMVSS No. 208 (GVWR of 8,500 lb or less and unloaded vehicle weight of 5,500 lb or less), FMVSS No. 212 (GVWR of 10,000 lb or less), FMVSS No. 214 (GVWR of 6,000 lb or less but does not apply to vehicles equipped with wheelchair lifts), FMVSS No. 219 (GVWR of 10,000 lb or less), and FMVSS No. 301 (GVWR of 10,000 lb or less). Part 595 provides an exemption that would allow a vehicle modifier to take a vehicle out of compliance with portions of FMVSS Nos. 204, 208, and 214 if the modifications are necessary to accommodate a person's disability. FMVSS No. 204 modifications are limited to those that affect the original steering shaft. If modifications to the steering shaft are not necessary, the vehicle must continue to meet the standard's requirements. Modifications with respect to FMVSS Nos. 208 and 214 are limited to those designated seating positions that are modified for use by a person with a disability.

The FMVSS most likely to be directly affected by a modification that lowers the vehicle's floor is FMVSS No. 301. This is because, at a minimum, the fuel lines from the engine to the fuel tank will usually need to be relocated; if large areas of the floor are lowered, the fuel tank itself may need to be relocated or replaced. FMVSS No. 301 requires that any spillage from the fuel system be within specified limits (on average, about one ounce per minute) when the vehicle is subjected to one of three test conditions: pulled forward into a fixed barrier at 30 mph, struck on the side by a 4,000 lb flat-faced, moving barrier traveling at 20 mph, or struck from the rear by the same moving barrier traveling at 30 mph. The vehicle will crush as it absorbs the crash energy in each test. The vehicle's fuel system is directly affected by the energy of the crash as that energy can cause the fuel tank to move. In addition, the fuel tank, lines, and other components may come into contact with other components in the same area of the vehicle. For example, in many cases where the agency's test vehicles have experienced spillage from the fuel tank, that spillage has been the result of the tank being pierced by another component of the vehicle.

Producers of equipment that is used in a system (e.g., fuel tank and lines) that is designed to comply with a particular FMVSS (e.g., FMVSS No. 301) are component suppliers and would not be directly subject to the requirements of the standard, ⁽¹⁾ although any manufacturer or alterer (see 49 CFR 567.7) using the product would be. A company that lowered the floor of an incomplete vehicle, or otherwise completed manufacturing operations on an incomplete vehicle, would be a final stage manufacturer. A company that lowered a vehicle floor on, or made other changes to, a completed vehicle prior to first retail sale would be an alterer. Both companies would have to certify that the vehicle, as finally manufactured or altered, complies with all applicable FMVSS, including FMVSS No. 301. A company modifying a vehicle after first retail sale, may not modify a vehicle in such a way as to take the vehicle out of compliance with any applicable FMVSSs for which there is no make inoperative exemption, although the modifier is not required to certify compliance with all applicable standards. However, any modifier that avails itself of the make inoperative exemptions provided in 49 CFR 595.7 must affix a permanent label to each affected vehicle that includes the statement "this motor vehicle has been modified in accordance with 49 CFR 595.6 and may no longer comply with all Federal Motor Vehicle Safety Standards in effect at the time of its original manufacture." Section 595.7 also requires the modifier to retain a copy of the document that must be provided to the vehicle owner. Section 595.7(e)(4) requires the document to include "a list of the FMVSS or portions thereof specified in paragraph (c) of this section with which the vehicle may no longer be in compliance."

Because there is no Part 595 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. One 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 possible 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.

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.4/12/02

Mr. Mark Doody
Technical Manager
Timoney Group
Gibbstown
Navan, Co. Meath
Ireland

Dear Mr. Doody:

This responds to your recent electronic mail message requesting an interpretation of how Federal Motor Vehicle Safety Standard (FMVSS) No. 121, Air Brake Systems, applies to truck air brakes. Specifically, you ask whether it would be "legal" under the National Highway Traffic Safety Administration (NHTSA) standards for a 6 x 6 vehicle to have an emergency braking system using two "L-split" circuits. Your message describes the "L-split" as two circuits with each circuit braking one rear axle and one front wheel.

By way of background information, Congress has authorized NHTSA to issue Federal motor vehicle safety standards (FMVSSs) applicable to new motor vehicles and items of motor vehicle equipment. NHTSA, however, does not approve or endorse motor vehicles or motor vehicle equipment. Instead, the statute establishes a "self-certification" process under which each manufacturer is responsible for certifying that its products meet all applicable safety standards.

NHTSA has issued several standards applicable to brake systems. Standard No. 121 establishes performance and equipment requirements for braking systems on vehicles equipped with air brake systems, and applies to almost all new trucks, buses, and trailers equipped with air brake systems. I note that, under Standard No. 121, trucks equipped with air braked systems are effectively required to have a dual braking system that is commonly called a split braking system as the result of the requirements in S5.7.1 and S5.7.2. Section S5.7.1, which is referred to as "Emergency brake system performance," requires air braked trucks to comply with a performance requirement that sets forth the distances in which they must stop if there is a leakage failure in the brake system. Section S5.7.2 requires the emergency brake system to be operated by a service brake control.

Although the performance requirements of Standard No. 121 are usually met by use of a "split circuit" emergency braking system, the Standard does not explicitly require such a system or declare that any "split circuit" system have a particular configuration or design. What is required is that the emergency brake system meet all applicable performance requirements.

I hope this information is helpful. If you have any questions, please feel free to contact Otto Matheke at this address or by telephone at (202) 366-2992.

Sincerely,

John Womack
Acting Chief Counsel

ref:121

d.8/31/01

James T. Pitts, Esq.
Winston & Strawn
1400 L Street, NW
Washington, DC 20005-3502

Dear Mr. Pitts:

This letter responds to your recent correspondence where you ask the National Highway Traffic Safety Administration (NHTSA) for clarification of the provision in Federal Motor Vehicle Safety Standard No. 208 that excludes small volume manufacturers from the phase-in of the requirements for advanced air bags. ⁽¹⁾ As noted in your letter, FMVSS No. 208 currently excludes from the phase-in vehicles manufactured by a manufacturer that produces fewer than 5,000 vehicles worldwide annually. While not subject to the phase-in requirements, small volume manufacturers are required to meet the requirements for advanced air bags effective September 1, 2006.

You queried whether a wholly-owned subsidiary of a manufacturer could qualify as a small volume manufacturer under a corporate arrangement that effectively treats the subsidiary as a totally separate corporate entity. Your letter indicated that the parent company does not manufacture vehicles for the U.S. market. You particularly emphasized the arms length relationship between the parent and the subsidiary, as well as the separate manufacturing plants, separate relationships with suppliers and sub-contractors, and the fact that the parent-subsidiary relationship would be the result of the acquisition of an existing small volume manufacturer.

Based on a review of the proposed corporate structure, we believe that the subsidiary would probably qualify as a small volume manufacturer for purposes of the relevant provision of FMVSS No. 208, even though wholly owned by a much larger vehicle manufacturer. However, we believe that the determination of whether the subsidiary is a small volume manufacturer for FMVSS No. 208 is no longer pertinent.

In our response to petitions for reconsideration of the advanced air bag final rule, published December 18, 2001 (66 FR 65376), we changed the provision so that vehicles that are manufactured by an original vehicle manufacturer that produces or assembles fewer than 5,000 vehicles annually for sale in the United States are not subject to the phase-in requirements. Again, we note that small manufacturers have always been required to meet the advanced air bag requirements after the phase-in ends on September 1, 2006. A complete explanation of the change is provided in our response to the petitions.

I hope this adequately resolves your concerns. Should you have any additional questions, please contact Rebecca MacPherson of my staff at this address or by phone at (202)366-2992.

Sincerely,

John Womack
Acting Chief Counsel

ref:208
d.3/1/02