ID: 1865y

The Honorable Henry J. Nowak
House of Representatives
Washington, DC 205l5

Dear Mr. Nowak:

Thank you for your letter on behalf of your constituents, Ms. Eugenia M. Pierakos and Mr. James L. Pierakos. Ms. Pierakos and Mr. Pierakos are president and sales manager, respectively, of a firm which is the western New York state dealer for Jaeger Industries, Inc., a Canadian manufacturer of curbside recycling equipment. They stated that Jaeger has had difficulty obtaining data/regulations that apply to a type of vehicle manufactured by Jaeger, and specifically asked about regulations related to the use of chain steering for dual steering applications, brakes, and throttle. According to the Pierakos' letter, Jaeger has spoken with two officials of the National Highway Traffic Safety Administration, and no one has provided that company with any definitive answers. Ms. Pierakos and Mr. Pierakos requested assistance in obtaining the necessary information.

I note that we do recall speaking with a representative of Jaeger by telephone. We were not able to provide definitive answers to that company by telephone, since it is our policy not to provide oral interpretations of our safety standards. This policy is for the benefit of the person requesting the interpretation and the agency. It ensures that there are no misunderstandings as to the question or response, and that there is an opportunity for appropriate review of the interpretation within the agency. The policy also enables us to place all interpretations in the docket, so that the public has access to each interpretation. While we advised Jaeger that they could submit their questions in writing, our records do not show any written request from that company.

I will now provide what information I can in response to the Pierakos' request. By way of background information, the National Highway Traffic Safety Administration (NHTSA) is authorized by the National Traffic and Motor Vehicle Safety Act to issue safety standards for new motor vehicles and new motor vehicle equipment. All motor vehicles and items of motor vehicle equipment manufactured or imported for sale in the United States must comply with all applicable safety standards. NHTSA does not provide approvals of motor vehicles or motor vehicle equipment. Under the Vehicle Safety Act, it is the responsibility of the manufacturer to ensure that its vehicles or equipment comply with applicable standards.

Enclosed is a pamphlet which provides information for new manufacturers of motor vehicles and motor vehicle equipment. Among other things, the pamphlet explains where to obtain motor vehicle safety standards and regulations.

As indicated above, Ms. Pierakos and Mr. Pierakos specifically asked about regulations concerning chain steering for dual steering applications, brakes, and throttle, that would apply to the vehicle manufactured by Jaeger. Information included with the letter indicates that the vehicle in question is an air-braked truck with a gross vehicle weight rating over 30,000 pounds.

NHTSA has not issued any standards for "chain steering." Moreover, no standard prohibits a manufacturer from providing dual steering. With respect to brakes, Standard No. l2l, Air Brake Systems, establishes performance and equipment requirements for braking systems on vehicles equipped with air brake systems, and Standard No. l06, Brake Hoses, specifies labeling and performance requirements for brake hose, brake hose assemblies and brake hose end fittings. Standard No. l24, Accelerator Control Systems, sets forth requirements for a vehicle's throttle. Also, Standard No. l0l, Controls and Displays, includes requirements related to the steering wheel, brakes, and throttle. If the Pierakos, or Jaeger, have any specific requests for interpretation of these or other applicable safety standards, we would be happy to respond to such requests.

I note that one of the enclosures included with Ms. Pierakos and Mr. Pierakos' letter is a drawing from Jaeger which includes the following statement: "This document contains proprietary information and it shall not be used or reproduced or its contents disclosed in part or whole without prior written authorization." Since the drawing could become subject to a request for release under the Freedom of Information Act, I am returning to you the copy of the drawing included with your letter.

I hope this information is helpful.

Sincerely,

Stephen P. Wood Acting Chief Counsel

Enclosures ref:57l d:6/27/89

ID: 1866y

Mr. Rod Willaredt
President
Diamond Cross Lights
P.O. Box 3696
Rapid City, SD 57709

Dear Mr. Willaredt:

This is in reply to your letter to Taylor Vinson of this Office, received by FAX on May l7, l989. You have developed a "safety light" that displays right and left turn signals, "and when the caution light/emergency light appears, the formation of such lights indicate a diamond". The device appears intended for installation on large trucks or trailers. The turn signal lamps are supplementary to a vehicle's original equipment turn signal lamps. I assume that the caution/emergency lamp to which you refer is what we call a hazard warning signal, sometimes known as a 4-way flasher. You have asked for written approval of this device.

This agency has no authority to "approve" or "disapprove" any motor vehicle or item of equipment. We can, however, advise as to the relationship of equipment to applicable Federal motor vehicle safety standards. I enclose copies of representative letters covering other auxiliary rear lighting for large trucks, such as wide-turn and U-turn indicators, and their relationship to Motor Vehicle Safety Standard No. l08, the National Traffic and Motor Vehicle Safety Act, and State law. These principles are applicable to your safety light as well.

If you have any further questions, we shall be happy to answer them.

Sincerely,

Stephen P. Wood Acting Chief Counsel

Enclosures /ref:l08 d:6/l9/89

ID: 1867y

Mr. Garry O. McCabe
37 E. Cotton Hill Rd.
New Hartford, CT 06057

Dear Mr. McCabe:

Earlier this year you wrote to the Federal Highway Administration (FHWA) asking for information concerning your plans to field test a "rapid fueling system" on an existing truck fleet. The FHWA has asked us to review your letter with regard to the regulations we administer. I expect that the FHWA will contact you directly with information concerning their regulations.

By way of background, the National Highway Traffic Safety Administration (NHTSA) is authorized to issue Federal motor vehicle safety standards (FMVSS's) applying to the manufacture of new motor vehicles and items of motor vehicle equipment. NHTSA is not authorized to certify or approve motor vehicles or motor vehicle equipment for compliance with our FMVSS's. Instead, under the National Traffic and Motor Vehicle Safety Act (copy enclosed), each manufacturer of a motor vehicle or item of motor vehicle equipment is responsible for certifying that its products meet all applicable safety standards. (A general information sheet describing manufacturer's responsibilities under the Vehicle Safety Act is enclosed.)

There is currently no FMVSS that is directly applicable to parts of the fuel system retrofitted to a used motor vehicle. FMVSS No. 301, Fuel System Integrity (copy enclosed), applies only to completed new motor vehicles. (The standard applies to trucks with a gross vehicle weight rating of 10,000 pounds or less.) If the rapid fueling system were installed as original equipment on new vehicles, the vehicle manufacturer would have to certify that the entire fuel system, with your product installed, satisfies the requirements of FMVSS No. 301. Also, if the item is added to a new motor vehicle prior to its first sale, the person who adds the system would be an alterer of a previously certified motor vehicle and would be required to certify that, as altered, the vehicle continues to comply with all of the safety standards affected by the alteration.

If the rapid fueling system is installed on a used vehicle by a business such as a garage or repair shop, the installer would not be required to attach a certification label. However, the installer would have to make sure that he or she did not knowingly render inoperative the compliance of the vehicle with any safety standard, including Standard No. 301. This is required by /108(a)(2)(A) of the Vehicle Safety Act.

The prohibition of /108(a)(2)(A) does not apply to individual vehicle owners who alter their own vehicles. Thus, under Federal law, they may install or remove any items of motor vehicle equipment regardless of its effect on compliance with Federal motor vehicle safety standards. However, the agency encourages vehicle owners not to remove or otherwise tamper with vehicle safety equipment if the modification would degrade the safety of the vehicle.

Although Standard No. 301 would not directly apply to rapid fueling systems installed on used vehicles, you should be aware that manufacturers of motor vehicle equipment, which would include your product, are subject to the requirements in sections 151-159 of the Vehicle Safety Act concerning the recall and remedy of products with defects relating to motor vehicle safety. If you or NHTSA determines that a safety-related defect exists, you must notify purchasers of your product and remedy the problem free of charge. (Note that this responsibility is borne by the vehicle manufacturer in cases in which the system is installed on a new vehicle by or with the express authorization of that vehicle manufacturer.) Any manufacturer which fails to provide notification of or remedy for a defect may be subject to a civil penalty of up to $1,000 per violation.

We suggest that you contact the Environmental Protection Agency to see whether the EPA has any type of emissions requirements that might affect the manufacture and installation of the rapid fueling system. The general telephone number for the EPA is (202) 382-2090.

I hope this information is helpful. Please contact my office if you have further questions.

Sincerely,

Stephen P. Wood Acting Chief Counsel

Enclosures

/ref:301 d:6/l9/89

ID: 1868y

BY FAX

Mr. H. Hasegawa Automotive Lighting Engineering Control Section Stanley Electric Co. Ltd.

FAX 03-792-0007 (Japan)

Dear Mr. Hasegawa:

This is in reply to your FAX letter of May 22, l989, to Richard Van Iderstine of this agency.

You have two questions with respect to the amendment to Standard No. l08 published on May 9, l989 (Docket No. 85-15; Notice 8).

Your first question is the effective date of paragraph S7.7.5.1.(a), which you point out was not previously a requirement of Standard No. l08. You suggest the need for a delayed effective date (but give no reason why one may be needed).

Paragraph S7.7.5.1(a) will be effective June 8, l989. Although the requirement is a new one (the restriction on motion of a headlamp when an external aiming device is applied to it), it was proposed as part of the December 29, l987 NPRM, and no comments received indicated a need for a delayed effective date. Your supposition is correct; S7.5.5.1 will apply to all headlamps with an external aiming system, including those incorporating replaceable bulbs.

Your second question relates to paragraph S7.7.5.l(b), and you ask "whether the requirement of '0.1 in. max.' will be determined, either during the test or after the test". In pertinent part, subsection (b) states "nor shall the lamp recede more than 0.1 in. (2.5 mm) after being subjected to an inward force...." This means that the measurement is determined after the test.

Sincerely,

Stephen P. Wood Acting Chief Counsel / ref:l08 d:6/l9/89

ID: 18698.nhf

Mr. Frank Enten
5305 Wilson Lane
Bethesda, MD 20814-1321

Dear Mr. Enten:

This responds to your September 2, 1998, letter to Nicole Fradette of my staff, requesting that the agency permit a repair business to modify your motor vehicle. You explain that your wife is disabled and has difficulty moving her legs in and out of the vehicle due to her limited range of mobility. You explain that you need to move the passenger seat back a few inches so that your wife has more room in which to maneuver in and out of the vehicle. Specifically, you request permission to have the rails that the seat sits on adjusted so that the seat can slide back further.

This letter provides the relief you seek. The National Highway Traffic Safety Administration (NHTSA) will not institute enforcement proceedings against a commercial entity that modifies the seat and seat rails to accommodate the condition you described.

We would like to begin by explaining that 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. After the first sale of a vehicle, manufacturers, distributors, dealers, and repair businesses are prohibited from "knowingly making inoperative" any device or element of design installed on or in a motor vehicle in compliance with an applicable standard. In general, the "make inoperative" prohibition (49 U.S.C. 30122) requires businesses which modify motor vehicles to ensure that they do not remove, disconnect, or degrade the performance of safety equipment installed in compliance with an applicable standard. Violations of this prohibition are punishable by civil penalties of up to $1,100 per violation.

There is no procedure by which businesses petition for and are granted permission from NHTSA to modify a motor vehicle. Businesses are permitted to modify vehicles without obtaining permission from NHTSA to do so, but are subject to the make inoperative provision of 49 U.S.C. 30122. In certain limited situations, we have exercised our discretion in enforcing our requirements to provide some allowances to a business which cannot conform to our requirements when making modifications to accommodate the special needs of persons with disabilities.

In situations such as yours where a vehicle must be modified to accommodate the needs of a particular disability, we have been willing to consider violations of the "make inoperative" prohibition to be justified by public need. As I have already noted above, NHTSA will not institute enforcement proceedings against a business that modifies the seat and chair rails to accommodate the condition you describe.

We caution, however, that only necessary modifications should be made. In addition, you should consult with the manufacturer to determine how to adjust the seat rails. The manufacturer should be able to provide information on how the modification can be safely performed. In addition, if the vehicle is sold, we urge you to advise the purchaser that the vehicle has been modified and consider reinstalling the removed safety equipment if appropriate.

If you have other questions or require additional information, please contact Nicole Fradette of my staff at this address or by phone at (202) 366-2992.

Sincerely,
Frank Seales, Jr.
Chief Counsel
ref:VSA
d.10/13/98

ID: 1869y

Mr. Jack Satkoski
Spectra Enterprises
East 832 11th Avenue
Spokane, WA 99202-2502

Dear Mr. Satkoski:

This responds to your letter asking for information about the application of Federal safety standards to a "sun visor extender" which "attaches by means of velcro straps to the existing auto, truck, or RV's sun visor." I regret the delay in responding.

By way of background information, the National Highway Traffic Safety Administration (NHTSA) is authorized by the National Traffic and Motor Vehicle Safety Act to issue Federal motor vehicle safety standards that set performance requirements for new motor vehicles and items of motor vehicle equipment. NHTSA is not authorized to certify or approve motor vehicles or motor vehicle equipment for compliance with our Federal motor vehicle safety standards. Instead, under the National Traffic and Motor Vehicle Safety Act (copy enclosed), each manufacturer of a motor vehicle or item of motor vehicle equipment is responsible for certifying that its products meet all applicable safety standards. The following represents our opinion based on the information provided in your letter.

There is currently no Federal motor vehicle safety standard that is directly applicable to a sun visor extender sold directly to a consumer. The Federal safety standard that regulates sun visors (Standard No. 201, Occupant Protection in Interior Impact) applies only to new motor vehicles (i.e., vehicles that have not yet been sold for purposes other than resale) and not to items of aftermarket equipment such as a sun visor extender.

However, there are other Federal requirements that indirectly affect the manufacture and sale of your device. Under the Safety Act, your device is considered to be an item of motor vehicle equipment. As a manufacturer of motor vehicle equipment, you are subject to the requirements in sections 151-159 of the Safety Act concerning the recall and remedy of products with defects relating to motor vehicle safety. I have enclosed an information sheet that briefly describes those responsibilities. In the event that you or NHTSA determines that your sun visors contain a safety-related defect, you would be responsible for notifying purchasers of the defective equipment and remedying the problem free of charge.

As stated above, the sun visor in a new vehicle is regulated by Safety Standard No. 201, which requires that the visor be "constructed of or covered with energy-absorbing material" and that the visor's mounting must "present no material edge radius of less than 0.125 inch that is statically contactable by a spherical 6.5-inch diameter head form." The purpose of the standard is to reduce the injuries that occur when unrestrained occupants strike the visor or its mounting with their heads. If your sun visor extender were installed by the manufacturer of a new motor vehicle, the visor, as modified by that installation, would have to comply with the visor requirements of the standard. I am enclosing a copy of Standard No. 201 for your review.

Another Federal standard to which the vehicle manufacturer must certify its vehicle as conforming is Standard No. 302, Flammability of Interior Materials (copy enclosed). This standard establishes flammability resistance requirements for certain vehicle components, including sun visors, on new vehicles. If a new vehicle manufacturer installs your product on the new vehicle, that manufacturer would have to certify the vehicle's compliance with Standard No. 302, and thus would be required to ensure that the sun visor conforms to the flammability resistance requirements of the standard and that the extender does not interfere with or prevent that ability to comply.

A commercial business that installs the sun visor on new or used vehicles would be subject to provisions of the Safety Act that affect whether the business may install your product on a vehicle. Section 108(a)(2)(A) of the Act states: "No manufacturer, distributor, dealer, or motor vehicle repair business shall knowingly render inoperative ... any device or element of design installed on or in a motor vehicle or item of motor vehicle equipment in compliance with an applicable Federal motor vehicle safety standard ..." This section requires manufacturers, distributors, dealers or motor vehicle repair businesses (i.e., any person holding him or herself out to the public as in the business of repairing motor vehicles or motor vehicle equipment for compensation) installing your sun visor extender on new or used vehicles to ensure that the addition of the device would not negatively affect the compliance of any component or design on a vehicle with applicable Federal safety standards. For example, the commercial entity must ensure that the addition of the device does not reduce the effectiveness of those features and aspects of performance of the sun visor that enabled the visor to comply with Standard No. 201 or Standard No. 302. Installation of rapidly burning materials could vitiate the compliance of the materials which were present in the vehicle at the time of its sale to the first consumer and were certified as meeting FMVSS No. 302. Section 109 of the Act specifies a civil penalty of up to $1,000 for each violation of /108.

However, the prohibitions of /108(a)(2)(A) do not apply to the actions of a vehicle owner in adding to or otherwise modifying his or her vehicle. Thus, a vehicle owner would not violate the Safety Act by installing the sun visor extender, even if doing so would negatively affect the safety performance of the sun visor.

In addition to the materials described above, we are also returning herewith the photograph and sketches you enclosed with your letter, as you requested in a telephone conversation with Ms. Fujita of my staff. We have issued this interpretation based on information which you confirmed you have no objection to publicly disclosing, and not on information whose confidentiality you have asked us to maintain.

Please feel free to contact us if you have further questions.

Sincerely,

Stephen P. Wood Acting Chief Counsel

Enclosures

ref:VSA#201#302 d:6/l9/89

ID: 1870y

AIR MAIL

M. Iwase, General Manager Technical Information Dept. Koito Mfg. Co., Ltd. Shizuoka Works 500, Kitawaki Shimizu-shi, Shizuoka-ken Japan

Dear Mr. Iwase:

This is in reply to your letter of March 20, l989, asking for an interpretation of Motor Vehicle Safety Standard No. l08 as it applies to the location of the license plate lamp on motor vehicles.

You noted the language in Tables II and IV of Standard No. l08 specifying that the lamp is to be located "at rear license plate, to illuminate the plate from the top or sides," for vehicles other than motorcycles. The requirement for motorcycles (Table IV) is simply that it be located "at rear license plate." You have asked for confirmation that, except on motorcycles, the license plate lamp shall not illuminate the plate from the bottom.

Your interpretation is correct. The rationale for the requirement is that in a location other than at the bottom, the license plate lamp is less likely to be obstructed by snow or mud.

I hope that this answers your question.

Sincerely,

Stephen P. Wood Acting Chief Counsel

/ Ref:l08 d:6/l9/89

ID: 18715.drn

Ms. Jean Little
Creative Child Care, Inc.
313 Harwood Road, Suite 100
Bedford, TX 76021

Dear Ms. Little:

This responds to your letter regarding the application of a law commonly known as the National Traffic and Motor Vehicle Safety Act (Safety Act) to the sale of new, large vehicles to child care centers that transport school children to and from school. As indicated by your letter, you are aware that in our view the sale of the vehicles is subject to the Safety Act. However, you disagree with our views.

At the outset, you state that you do not believe that the Safety Act (specifically, sections 30112 and 30125 of Title 49, United States Code) was intended to apply to vehicles other than those used in transportation by educational institutions. We do not agree with your position. The National Highway Traffic Safety Administration (NHTSA) is authorized to regulate the manufacture and sale of new vehicles. One class of vehicles specifically addressed by the Act is school buses. Persons selling new "school buses" must sell vehicles that are certified as meeting Federal motor vehicle safety standards applicable to school buses. Whether a vehicle is a "school bus" depends on the nature of the vehicle and the use -- whether the vehicle is likely to be used significantly to carry students to or from school or related events. Of particular significance in the context of your letter, the statute is not limited in its application to transportation used by educational systems. If a significant use of a bus is for transporting children to or from school, the vehicle is a school bus, regardless of whether the purchaser is a child care facility.

You also propose a delineation between a "student" and a "child" based on when the person leaves the building, grounds, activity or transportation of the educational system. That distinction is not supported by the statute. As stated above, the Safety Act defines a "school bus" as any vehicle that is designed for carrying a specified number of persons or more which is likely to be "used significantly" to transport preprimary, primary, and secondary students "to or from school or an event related to school" (emphasis added). 49 U.S.C. 30125. Therefore, the relevant inquiry focuses on the use of the vehicle to transport such persons to or from school or an event related to school, not on the status of being within or having departed from the educational system.

You ask how NHTSA's requirements would apply to private citizens driving "a vehicle designed to carry 10+ passengers to pick up and deliver [their] children to school every day." Our regulations would not apply in this situation. As explained as long ago as April 25, 1986, in our letter to Mr. Arnold Spencer (copy enclosed), the statutory requirement on sellers to sell school buses does not apply to privately-owned family vehicles.

We need not resolve whether child care facilities simply providing custodial care are schools under laws other than the Safety Act. The critical issue, that of regulation under the Safety Act, has little to do with the nature of the institution. The resolution of NHTSA's jurisdiction turns on the use of the vehicle. We do not see how the resolution of NHTSA's jurisdiction has any bearing on whether a child care facility is a school under State or other law.

I should add that NHTSA's safety standards directly regulate the manufacture and sale of new motor vehicles, not their use. Each State is free to impose its own standards regarding use of motor vehicles, including school buses. For information on Texas' requirements on transportation of school children, you can contact Texas's State Director of Pupil Transportation:

Sam Dixon, Director
School Transportation
Texas Education Agency
1701 N. Congress Avenue
Austin, TX 78701
Telephone: (512) 463-9233

You also asked about safety differences between 10+ passenger vans and school buses. Both 10+ passenger vans and school buses must meet all Federal motor vehicle safety standards applicable to buses. School buses must meet additional safety standards.

In closing, we wish to emphasize that school buses are one of the safest forms of transportation in this country, and that we therefore strongly recommend that all buses that are used to "significantly" transport school children be certified as meeting NHTSA's school bus safety standards. Further, using 10+ passenger vans that do not meet the school bus standards to transport students could result in increased liability in the event of a crash. Since such liability would be determined by State law, you may wish to consult with your attorney and insurance carrier for advice on this issue.

I hope this information is helpful. I apologize for the delay in responding. I am also enclosing our publication, "School Bus Safety: Safe Passage for America's Children." If you have any further questions, please feel free to contact Dorothy Nakama of my staff at this address or by telephone at (202) 366-2992.

Sincerely,
Frank Seales, Jr.
Chief Counsel
Enclosures
ref:VSA#571.3
d.4/2/99

ID: 1871y

Mr. Bob Sandblom
President
Bookland
8980 E. Indian Bend Road, Suite Dl
Scottsdale, AZ 85256

Dear Mr. Sandblom:

Thank you for your letter of May l8, l989, addressed to the Department, calling our attention to a dealer practice of placing overlays on the center of highmounted stop lamps.

We have received a number of inquiries about this subject, and I enclose a representative response. You are correct that it is not legal for a dealer to create a noncompliance, but you will see from the letter enclosed that the practice is not in and of itself illegal provided that the lamp continues to meet the rather technical requirements of the standard after the overlay is required.

We appreciate your interest in motor vehicle safety, and for taking the time to write us.

Sincerely,

Stephen P. Wood Acting Chief Counsel

Enclosure ref:l08 d:6/l9/89

ID: 1872y

AIR MAIL

Mr. R. Yamauchi Seat Belt Engineering Department Nippon Seiko K.K. 12, Kirihara-cho Fujisawa, JAPAN

Dear Mr. Yamauchi:

This responds to your letter asking for an interpretation of Standard No. 209, Seat Belt Assemblies (49 CFR /571.209). I regret the delay in responding. Your questions concerned a seat belt assembly that is designed with a dual mode retractor. The retractor for this system generally functions as an emergency locking retractor (ELR). However, the retractor can be converted to an automatic locking retractor (ALR) to facilitate securing a child restraint at that seating position. The retractor converts from an ELR to an ALR when the webbing is completely extended. The retractor converts back to an ELR when most of the webbing has been retracted. You posed the following questions.

1. Is this retractor considered an ELR? If so, is it required to comply with the performance requirements for ELR's, or is it required to comply with the performance requirements for both ELR's and ALR's?

Response: Your letter did not provide sufficient information to allow us to answer this question. However, in a July 3, 1984 letter to Mr. Donald Schwentker, we explained the criteria we use to determine whether a dual mode retractor such as you described is considered an ELR or an ALR for the purposes of our safety standards. To briefly restate the criteria, section S4.1(g) of Standard No. 209 specifies adjustment requirements for all seat belt assemblies. We examine the functioning of the retractor during normal operation by occupants within the weights and dimensions set forth in S4.1(g)(3) of Standard No. 209. If 100 percent extension of the webbing is likely to occur during normal operation of the belt assembly by those occupants (thereby converting the retractor into an ALR), the retractor would be considered an ALR. If during normal operation of the belt assembly by the specified occupants the retractor would function exclusively as an ELR, the retractor would be considered an ELR.

Using these criteria, the length of the webbing used in the belt assembly will ultimately determine whether a dual mode retractor would be considered an ELR. If the webbing is long enough that a 95th percentile adult male would not extend the webbing 100 percent during normal operations (including fastening and unfastening the belt or leaning forward to adjust the radio or other controls on the instrument panel), the retractor would operate exclusively as an ELR and would be treated as such for the purposes of our safety standards. If, on the other hand, normal operations by a 95th percentile adult male would result in 100 percent extension of the webbing, the retractor would be considered an ALR for the purposes of our standards. Your letter did not provide any information about the length of the webbing to be used in the belt assembly, so we cannot offer any opinion about whether the retractor for the belt assembly would be considered an ELR or an ALR.

2. You noted that section S5.2(k) of Standard No. 209 requires that ELRs be subjected to 45,000 additional cycles of webbing withdrawal and retraction between 50 and 100 percent extension. You stated if dual mode retractors were treated as ELRs, this requirement would present serious problems, since 100 percent webbing extension would convert the retractor to an ALR and the subsequent retraction to 50 percent extension would not convert the retractor back to an ELR. Hence, when the webbing returned to 50 percent extension after 100 percent extension, the retractor would be an ALR. In this mode, the retractor would lock the webbing at 50 percent extension and no further cycles would be possible. To avoid this problem, you asked if you could test the retractor by subjecting it to 45,000 additional cycles between 0 percent extension and 100 percent extension. You asserted that this testing should be permitted, because it is a more stringent test of the retractor.

Response: This question may reflect a misunderstanding of the differing responsibilities imposed on a manufacturer that is certifying compliance with a safety standard and on the agency when it is testing for compliance with a safety standard. You, as a manufacturer, are not required to conduct testing before certifying that your belt assemblies comply with Standard No. 209. Instead, the National Traffic and Motor Vehicle Safety Act requires that you exercise "due care" in making such certifications. It is up to the manufacturer in the first instance to determine what data, test results, computer simulations, engineering analyses, or other information it needs to enable it to certify that each of its products comply with all applicable safety standards.

If a manufacturer chooses to conduct testing, the manufacturer is free to modify any or all parts of the test procedure specified in the standard, provided that the manufacturer can show that the results obtained using these modified test procedures are sufficient to satisfy the "due care" standard. You have the responsibility in the first instance to decide whether the substitution of an alternative test is sufficient to establish due care in making certifications based on this modification of the standard. This determination involves assessing whether the results of the alternative test procedure are good predictors of the results of the test procedure specified in the standard.

When the agency conducts its compliance testing, however, it is required to follow the compliance tests specified in the applicable standard. Thus, the agency would not substitute cycles between 0 and 100 percent extension for the cycles between 50 and 100 percent extension that are specified in Standard No. 209. If this retractor were treated as an ELR for purposes of Standard No. 209, applying the criteria set forth above in response to your first question, we would test the retractor solely as an ELR. To do this, we would disengage or disconnect the features that convert the retractor to an ALR at 100 percent webbing extension. The retractor would then be tested in accordance with the procedures set forth in S5.2(k) of Standard No. 209.

I hope this information is helpful. Please let me know if you have any further questions or need additional information on this subject.

Sincerely,

Stephen P. Wood Acting Chief Counsel /ref:209 d:6/l9/89