Interpretation ID: nht87-3.15

TYPE: INTERPRETATION-NHTSA

DATE: 10/15/87

FROM: ERIKA Z. JONES -- NHTSA

TO: G.T. DOE -- LOTUS ENGINEERING, LTD.

TITLE: NONE

ATTACHMT: LETTER DATED 02/05/87 FROM G.T. DOE TO ERIKA Z JONES; OCC 176; LETTER DATED 09/18/87 FROM ERIKA Z JONES TO J. DOUGLAS HAND

TEXT: Dear Mr. Doe:

This responds to your letter in which you asked how the conversion of a convertible to a hardtop would affect the applicability of two of our safety standards. I regret the delay in this response. You explained that Lotus proposes to introduce a new tw o seat convertible into the United States. These cars will be imported into the United States and delivered to dealers and distributors as convertibles. However, you stated that Lotus intends to offer a "factory manufactured and approved" hardtop conve rsion for these convertibles. Dealers would remove the convertible canopy and support frame and permanently attach a hard roof to the vehicle. The converted cars would be sold to the public as hardtops. You then asked whether the convertible cars would be treated as hardtops or convertibles for the purposes of Standards No. 208 and No. 216.

I would like to set the foundation for answering your specific questions by first addressing a few basic points. The agency has defined a convertible as "a vehicle whose A-pillar (or windshield peripheral support) is not joined at the top with the B-pil lar or other rear roof support rearward of the B-pillar by a fixed rigid structural member." In this case, your kit will join the A-pillar and B-pillar of the convertible by a fixed rigid structural member. After this conversion, the car would no longer be a convertible, as that term is used by NHTSA.

Section 108(a)(1)(A) of the National Traffic and Motor Vehicle Safety Act of 1966, as amended (15 U.S.C. 1397(a)(1)(A)) provides that, "No person shall manufacture for sale, sell, offer for sale, or introduce or deliver for introduction in interstate com merce, or import into the United States, any motor vehicle ... manufactured on or after the date any Federal motor vehicle safety standard takes effect under this title unless it is in conformity with such standard except as provided in subsection (b) of this section." This provision makes clear that a dealer would be prohibited from selling a hardtop passenger car that did

not comply with all safety standards applicable to hardtops, even though the passenger car conformed to all standards applicable to convertibles when it was imported and delivered to the dealer.

The exceptions set forth in section 108(b) of the Safety Act would not permit a dealer to sell a car that had been converted from a complying convertible into a hardtop without being modified to comply with all safety standard requirements applicable to hardtops. Section 108(b)(1) specifies that the prohibition on selling or offering to sell passenger cars that do not conform with all safety standards does not apply after the first purchase of the car in good faith for purposes other than resale. Howe ver, a dealer that converts a car into a different type before the first purchase could not rely on this exception.

Section 108(b)(2) specifies that the prohibition on selling nonconforming cars shall not apply to any person who establishes that he or she did not have reason to know in the exercise of due care that the car did not conform to the safety standards, or t o a person who holds a certification of conformity from the manufacturer or importer of the car, unless that person knows that the car does not conform. In the case of this proposed conversion, the dealers would hold a certificate of conformity from Lot us of the importer for the convertible version of this car. However, the dealers would also know that they had converted the car into a hardtop, and that they had no certificate of conformity for the car as a hardtop. Further, such dealers would have r eason to know that the requirements in the safety standards for hardtops are different from those for convertibles. Finally, the dealers would know that the hardtop version of the car had not been certified as conforming to all applicable standard requi rements. Indeed, as alterers of completed vehicles, the dealers would be required to recertify the cars under 49 CFR @ 567.7.

The exceptions to section 108(a)(1)(A)'s prohibition set forth in sections 108(b)(3)-(5) are not applicable in this situation. Hence, dealers could not legally sell these converted cars to the public for the first time, unless the cars conform with all safety standards applicable to hardtop passenger cars. With this background, I will now address your specific questions. They were:

1. Convertibles are not required to conform to the roof crush requirements of Standard No. 216, Roof Crush Resistance - Passenger Cars (49 CFR @571.216). Would the designation of the vehicle as a convertible remain unaffected by the hardtop conversio n?

ANSWER: As explained above, the answer to this question is no. Any car that is converted to a hardtop before its first sale for purposes other than resale must comply with all standards applicable to hardtops. Assuming such cars do not conform to the r ollover test requirements in section S5.3 of Standard No. 208 by means that require no action by vehicle occupants, these cars would be subject to the requirements of Standard No. 216.

2. Would the requirement for seating and restraint system provision remain unaffected by the hardtop conversion?

ANSWER: No. It is not clear to which seating requirements you are referring. However, you stated in your letter, "It is conceivable that, although the shelf would not be recognised as a seating area, small occupants could travel in this area." The requi rements for seating systems are dependent upon the existence of a "designated seating position." This term is defined in 49 CFR @571.3 as follows:

"Designated seating position" means any plan view location capable of accommodating a person at least as large as a 5th percentile adult female, if the overall seat configuration and design and vehicle design is such that the position is likely to be used as a seating position while the vehicle is in motion, except for auxiliary seating accommodations such as temporary or folding jump seats.

We cannot determine from your letter if the shelf area is capable of accommodating a 5th percentile adult female, nor can we determine whether the area's configuration and design is such that the position is likely to be used as a seating position while the vehicle is in motion. It appears from the enclosed drawings that any person riding in the shelf area would have to sit on the floor or prop themselves on the wheel wells. If this is true, the shelf area would not be considered to have any designate d seating positions.

The required occupant restraint system would also be affected by converting the convertibles into hardtops. As explained above, cars that are converted to hardtops by dealers before sale to the public would not be treated as convertibles for the purpose s of Standard No. 208, Occupant Crash Protection (49 CFR @ 571.208). Since the cars would no longer be considered convertibles, they would have to be equipped with lap/shoulder belts at both designated seating positions, pursuant to section S4.1.2.3.1 o f Standard No. 208. Additionally, these cars would not be eligible for the exemption for convertibles during the phase-in of the automatic restraint requirements in Standard No. 208. I sent a letter to General Motors (GM) on September 18, 1987, stating that GM may be considered the manufacturer of Lotus cars that are imported into the United States (copy enclosed). Therefore, any Lotus cars that are converted into hardtops would have to be included in GM's annual production to determine compliance wi th the phase-in requirement, pursuant to sections S4.1.3.1.2, S4.1.3.2.2, and S4.1.3.3.2 of Standard No. 208. I have also sent a copy of this letter to General Motors.

ENCLOSURE