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Interpretation ID: 23132spwAug21



    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 Your letter also notes that Section 568.6(a) further states that the foregoing requirements shall be superseded by any conflicting provisions of a standard that applies by its terms to vehicles manufactured in two or more stages.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