ID: 21124.drn

John A. Green, Supervisor
California Department of Education
Office of School Transportation
721 Capitol Mall
P. O. Box 944272
Sacramento, CA 94244-2720






Dear Mr. Green:

This responds to your letter asking about an Oceanside (California) Unified School District school bus modified with a product manufactured by Majestic Transportation Products, Ltd. , (Majestic) called the Safe-T-Bar passenger restraint system.

You explain that the Safe-T-Bar is a "heavily padded U-shaped bar similar to the type of restraint systems most commonly found on amusement park rides." Majestic asserts that "during a sudden stop, collision, or bus rollover - etc., a small weighted pendulum swings and engages a latch, locking the 'Safe-T-Bar' in the down position, thereby controlling and restraining the passenger within the padded seating area." You further inform us that Majestic and the Oceanside Unified School District are "cooperating" in testing the system on an Oceanside school bus. You do not describe how or what type of testing is being conducted, or whether school children are involved in the testing.

You asked that we respond to six questions. The questions address the safety of the Safe-T-Bar system and whether a school bus that has its passenger seats retrofitted with Safe-T-Bars would continue to meet Federal motor vehicle safety standards (FMVSS), including Standard No. 222, School Bus Passenger Seating and Crash Protection. Our answers are provided below. In addressing your questions, it might be helpful to have some background information on school bus crash protection.

In response to the Motor Vehicle and Schoolbus Safety Amendments of 1974, we issued a number of safety standards under the National Traffic and Motor Vehicle Safety Act (now codified at 49 U.S.C. 30101 et seq.) to improve protection of school bus passengers during crashes. One of these standards was Standard No. 222, which provides for passenger crash protection through a concept called "compartmentalization." Prior to issuance of Standard No. 222, we found that the school bus seat was a significant factor contributing to injury. We found that seats failed the passengers in three principal respects: by being too weak; too low; and too hostile. In response, we developed requirements to improve the performance of school bus seats and the overall crash protection of school buses. Those requirements comprise the "compartmentalization" approach we adopted for providing high levels of crash protection to school bus passengers.

Compartmentalization is directed toward ensuring that passengers are surrounded by high-backed, well-padded seats that both cushion and contain the children in a crash. If a seat is not compartmentalized by a seat back in front of it, compartmentalization must be provided by a restraining barrier. The seats and restraining barriers must be strong enough to maintain their integrity in a crash yet flexible enough to be capable of deflecting in a manner which absorbs the energy of the occupant.They must meet specified height requirements and be constructed, by use of substantial padding or other means, so that they provide protection when they are impacted by the head and legs of a passenger.

It is helpful to bear in mind the following highlights about compartmentalization:

(1)	Compartmentalization provides effective occupant crash protection, minimizes the hostility of the crash environment, and limits the range of movement of an occupant, without using seat belts;
(2)	Compartmentalization ensures that high levels of crash protection are provided to each passenger independent of any action on the part of the occupant; and
(3)	Seat belts are needed on passenger cars and other family vehicles and on small school buses (school buses with a GVWR of 10,000 pounds or less) because the crash pulse, or deceleration, experienced by the lighter vehicles is more severe than that of larger vehicles in similar collisions. Large school buses are inherently safer vehicles because they are larger and heavier than the vast majority of the other vehicles on the road. In addition, occupants in large school buses sit above the forces that are typically imparted to the bus by smaller impacting vehicles during a crash. The training and qualification requirements for school bus drivers and the extra care taken by other road users in their vicinity add to the safety of school buses.

With this background in mind, we now turn to your questions.

1.    Does testing of any product in an independent testing facility (other than [by] a manufacturer) certify that the product meets applicable FMVSS?

The answer is no. The manufacturer of a motor vehicle must certify that the vehicle meets applicable FMVSSs. Under 49 CFR Part 567, Certification, the motor vehicle manufacturer must "affix to each vehicle a label" that among other information, states: "This vehicle conforms to all applicable Federal motor vehicle safety standards in effect on the date of manufacture shown above." This statement is the certification.

Most items of the motor vehicle equipment that have applicable FMVSS are marked "DOT" to indicate that they meet the standards' requirements. Regarding certification to FMVSS requirements, independent testing laboratories sometimes provide services to vehicle and equipment manufacturers, including information and test data that support the manufacturers' certifications. However, testing by itself is neither a certification nor a substitute for certification.

2.    Does NHTSA certify independent testing facilities?

The answer is no. Any representation that NHTSA "certifies" or "approves" test laboratories or facilities to conduct compliance testing, or for any other purpose, would be misleading. I note that in its information to you, Majestic describes a testing facility that produced a "comprehensive seventy two page report" as a "federally approved collision testing facility." NHTSA has not approved the facility, or any other facility, to conduct compliance testing or for any other purpose.

3.    Does the Safe-T-Bar system conform to the Federal Motor Vehicle Safety Standards?

Because the Safe-T-Bar system is an item of equipment that is sold separately from a school bus, there are no safety standards that directly apply to it. Our safety standards for school buses apply to new, completed vehicles, not to separate components or systems. As such, Standard No. 222 does not apply to the Safe-T-Bar system, assuming the system is sold in the aftermarket and is not sold as part of a new school bus. A representation that a product meets crash protection standards that do not apply is misleading. ⁽¹⁾

If the Safe-T-Bar system were installed on new school buses, the vehicle would have to meet Standard No. 222 and the other school bus standards with the product installed. Without testing a vehicle, we cannot make a positive determination of whether the standard could be met with the product installed. However, as explained below, we believe that a new school bus may not be able to meet the standard with the Safe-T-Bar system. We have other safety concerns as well, apart from whether the requirements of Standard No. 222 could be met.

4.    Does the Safe-T-Bar system make inoperative the school bus's compliance with Standard No. 222?

Section 30122 of our statute prohibits a motor vehicle manufacturer, dealer, distributor, or repair business from installing any modification that "make[s] inoperative any part of a device or element of design installed on or in a motor vehicle in compliance with an applicable motor vehicle safety standard . . . ." Any person in the aforementioned categories that makes inoperative the compliance of a device or element of design on the vehicle would be subject to fines of up to $1,100 per violation and to injunctive relief.

The compartmentalization requirements of Standard No. 222 include requirements that a protective seat back must be provided to protect an unrestrained passenger. We are concerned about the continued compliance of a bus with a Safe-T-Bar installed with Standard No. 222's seat deflection and head and leg protection requirements.

5.    Does the Safe-T-Bar attachment to a school bus passenger seat back reduce or compromise the effectiveness of compartmentalization?

We believe it is possible that the incorporation of the Safe-T-Bar system into existing school bus seats would reduce the benefits of compartmentalization, and otherwise adversely affect safety. NHTSA has previously discussed compliance and other safety concerns applicable to similar devices, including the R-Bar, a padded restraining device designed to be mounted on the seat backs of school buses that folds down to restrain the passengers in the next rearward seat. In a letter of October 15, 1993 (copy enclosed), NHTSA summarized how it has addressed various compliance and safety issues applicable to devices similar to R-Bars and the Safe-T-Bar:

As we stated in a letter to Mr. Kenneth A. Gallo dated February 19, 1993, (copy enclosed) the agency believes that the concept of using "safety bars" as occupant retraining devices in school buses raises significant safety concerns, including whether the bar could result in excessive loads (e.g., abdominal, leg or chest) on occupants during a crash, as a result of contact between the bar and the occupants. We explained in a July 14, 1992, letter to you (copy enclosed) that the vehicle in which R-Bars are installed must meet the requirements of Standard No. 222 with the device in any position in which it may be placed. We have said that if a padded restraining device similar to the R-Bar is attached to the seat back, it becomes part of the seat and the device, as folded into its position, must not intrude into the leg protection zone described in S5.3.2 of Standard No. 222 (NHTSA letter of January 31, 1991, to Mr. Scott Hiler, enclosed). Also enclosed are NHTSA letters of March 10, 1989, and November 3, 1988, to Mr. Joseph Nikoll, which discuss issues concerning installation of "safety bars" in small school buses in addition to or in lieu of the seat belts required by Standard No. 208.

Standard No. 222 specifies a forward and a rearward push test on the seat back of a school bus seat. These tests are designed to require seat backs to deform in a controlled manner. For example, in a frontal crash, occupants will impact the seat back in front of their seating position. That seat back must deflect forward to absorb energy from the occupants, but not collapse so far as to cause injuries to passengers seated in front of it. Our crash statistics show that the compartmentalization concept supported by Standard No. 222 has been successful in protecting the students who ride on the nation's school buses.

The agency is concerned that the introduction of Safe-T-Bar type devices will adversely affect the protection provided by Standard No. 222. Using the same frontal crash example, these devices will likely place loads on the student's abdomen and force the upper torso to rotate around the bar, place strains on the student's spine, and allow the heads of larger students to strike the top of the seat back in front of them. In contrast, unrestrained passengers will translate forward into the seat back in front of them and distribute the load across their entire upper torso. Standard No. 222 requirements for head and leg protection, where compliance is demonstrated by impacting the seat back, result in seat designs that accommodate this type of loading.

In addition, Safe-T-Bar type devices can reduce and otherwise limit the living space between seats. In the event a seat back is loaded and deformed by the students in the rear seat, the students in the forward seat may be sandwiched between their seat back and the restraining device attached to the seat in front of them. Similar arguments may be made for rear end impacts.

6.    If a school bus were retrofitted with the Safe-T-Bar system, will the school bus continue to meet all applicable Federal motor vehicle safety standards?

Compartmentalization is intended to restrain passengers in a crash without seat belt assemblies or devices such as the Safe-T-Bar. As previously explained, we have concerns about a product that might interfere with the capability of a school bus to protect occupants.

For the above reasons, we believe that a school bus seating system with a bar system might reduce the crash protection provided in vehicles which meet the requirements of the Federal motor vehicle safety standards. There is limited information on how bar systems would perform in a crash or affect the current safety of school buses. We are undertaking a comprehensive school bus safety research program to evaluate better ways of retaining occupants in the seating compartment. As part of that program, we will be looking into possible ways of redesigning the school bus seat, as well as integrating a lap and shoulder belt into the seat that is compatible with compartmentalization. Also, we plan to conduct research on extra padding, not only for the seat itself but also for the bus side wall.

On a final note, we would like to point out that many of Oceanside's newer school buses may still be under the school bus manufacturer's warranty. Before Oceanside decides to retrofit any school bus with the Safe-T-Bar or a similar system, it may be prudent for the school district to share Majestic's information with the school bus manufacturer, and request a determination whether the school bus manufacturer will continue to honor applicable warranties if the Safe-T-Bar system were placed on school buses.

I hope this information is helpful. 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:222
d.9/25/00

---

1. Regardless of whether a safety standard applies to the product, our statute at 49 U.S.C. 30120 requires manufacturers of motor vehicles and motor vehicle replacement equipment to notify owners and to provide remedies if it is determined their products have safety-related defects. If it were determined that the Safe-T-Bar systems had a safety-related defect, the manufacturer would have to notify all purchasers and repair or replace the defective item without charge.

ID: 2112y

Mr. Wolfred Freeman
Freeman & Company
P.O. Box 5062
San Marcos, CA 92069

Dear Mr. Freeman:

This is in reply to your letter to June 22, l989, to the Administrator-Designate, General Curry, in which you "petition...for permission to produce a color coded (Green-Amber-Red) rear light device for all types of motor vehicles." You have designed "a workable auxiliary system that can be adopted to cars and trucks on the road."

We are treating your letter as a request for an interpretation of whether your device would be permissible for sale and use as an item of aftermarket equipment under the regulations and statutes administered by this agency. By aftermarket, we mean sale of the device for installation on cars and trucks in use, as contrasted with sales by dealers for installation on new cars. The principal regulation of this agency pertaining to motor vehicle lighting equipment is Federal Motor Vehicle Safety Standard No. l08. The only requirements it establishes for the aftermarket is for equipment that is intended to replace the original lighting equipment specified by the standard (for example, headlamps and stop lamps). As your device is not a required item of motor vehicle lighting equipment, there is no Federal standard that applies to it.

However, the National Traffic and Motor Vehicle Safety Act has a direct relationship to the acceptability of aftermarket equipment. The Act prohibits modifications by persons other than the owner of the vehicle if they render inoperative, in whole or in part, equipment that is installed pursuant to a safety standard. Under Standard No. l08, this equipment includes stop lamps, turn signal lamps, hazard warning signals, turn signals, backup lamps, taillamps, and the license plate lamp. On large trucks, it also includes identification lamps and clearance lamps. If the potential effect of an auxiliary lighting device is to create confusion as to the intended message of any lighting device required by Standard No. l08, we regard the auxiliary light as having rendered the required lamp partially inoperative within the prohibition of the Act.

Thus, the question is whether your device has the potential to create confusion so that its installation by a manufacturer, distributor, dealer, or motor vehicle repair business would be a violation of the Act. We do not conclude that the device has this potential. In your device, a steady-burning amber light would signal that the accelerator had been released (and that neither the accelerator nor brake pedal were being applied). Amber is the recognized signal for caution. This signal will extinguish when either the accelerator (green signal) or brake pedal (red signal) is applied. Furthermore, it is steady burning whereas other rear lamps where amber is an optional color (turn signals and hazard warning signals) flash in operation. Therefore, it does not appear that your device would create confusion with required items of lighting equipment.

You must also consider whether the device would be acceptable under the laws of any State where it is sold and used. We are unable to advise you on State laws, and recommend that you contact the American Association of Motor Vehicle Administrators, 4600 Wilson Boulevard, Arlington, Va. 22203. However, we believe that in several Western States, there has been specific legislation that would permit your device.

We appreciate your interest in enhancing vehicle safety through improvement in rear lighting systems. We believe that improvements, such as the center highmounted stop lamp, should be introduced as standardized, mandatory lighting equipment on vehicles, rather than as optional aftermarket devices. Contrary to your understanding, our studies of a system similar to yours showed no discernible improvement in reaction time or accident avoidance over current systems.

Sincerely,

Stephen P. Wood Acting Chief Counsel

ref:VSA#l08 d:ll/6/89

ID: 21171.ztv

Mr. Mark Steele
Steele Enterprises
225 Merrill Place
Goshen, IN 46528

Dear Mr. Steele:

This replies to your letter to me dated January 3, 2000, as well as to your January 3, 2000, letter to Secretary of Transportation Rodney E. Slater. I understand that you also talked with Taylor Vinson of this office on January 24, 2000, and Rich Van Iderstine of the Office of Safety Performance Standards on August 4, 1999. My previous letters to you of October 21, 1999, and December 6, 1999, advised you that we do not regard your invention as permitted under Federal lighting laws.

Your latest letter asks 11 additional questions. My answering these questions is not going to change the fact that we view your invention as not allowed by Federal Motor Vehicle Safety Standard No. 108. Instead, I will proceed to address the one concern that underlines your questions: the steps required in petitioning for rulemaking to amend Standard No. 108 to allow your invention, and the support that we look for.

The requirements for petitioning are set forth in 49 CFR 552.4, and are very simple. The petition must be in the English language, the word "Petition" must be in the heading preceding the text, set forth facts which it is claimed establish that an amendment is necessary, set forth a brief description of the substance of the amendment which it is claimed should be issued, and contain the name and address of the petitioner.

The support for a petition for rulemaking to amend Standard No. 108 with respect to signal lamps is more complex. We believe that motor vehicle safety is best promoted by standardization of lighting signals. As you might imagine, the agency is frequently presented with new lighting ideas intended to enhance safety. Many of these are not allowable under Standard No. 108 because of deviations from the performance of the lighting equipment mandated by the standard. Virtually all these ideas are submitted without proof of their effectiveness. On December 13, 1996, we published a Federal Register notice that articulated the agency's general policy regarding new signal lighting ideas and how that policy would apply in the case of four specific brake signaling ideas (61 FR 65510). In a subsequent notice, published on November 4, 1998 (63 FR 59482), we expressed our intent to participate in efforts to develop an international consensus on how to handle new signaling ideas. We went on to say that, until a new international consensus emerges, we will follow the policy described in the December 1996 notice. I enclose a copy of both the 1996 and 1998 notices.

Of particular interest to you will be the discussion on p. 65517 of the December 1996 notice in which we advised inventors to provide our Office of Research and Development with candidates for future agency research. We summarized our policy thusly:

In summary, a petitioner seeking to persuade the agency to mandate a lighting invention for new vehicles bears the initial burden of establishing its safety value and cost effectiveness. The burden for those inventors seeking to make an invention optional is to convince the agency that the invention will not impair the effectiveness of required lighting equipment through creating ambiguity or negatively affecting standardization of signals.

You mentioned to Mr. Vinson on January 24 that the BMW website indicates that the hazard warning signals on the company's 8 Series model activate automatically in the event of a crash. The 8 Series is no longer sold here and any such feature is unknown to us. SAE Standard J910 "Vehicular Hazard Warning Signal Operating Switch" January 1966, incorporated by reference in Standard No. 108, defines hazard signals as "driver actuated." However, we would not view automatic activation of the hazard signals in the event of a crash as a noncompliance with Standard No. 108 since there can be no ambiguity about the signal's meaning at that point.

Sincerely,
Frank Seales, Jr.
Chief Counsel
Enclosures
ref:108
d.2/25/2000

ID: 21202.drn

James Hill, Esq.
General Counsel
South Carolina Department of
Disabilities and Special Needs
P. O. Box 4706
Columbia, SC 29240

Dear Mr. Hill:

This responds to your January 27, 2000, request for an interpretation regarding our school bus regulations as they apply to the transportation of mentally disabled individuals, most of whom are beyond school age, "to different locations on or about a mental retardation facility." The facility provides training, which you say approximates that of a school, although the method of instruction is typically by way of rote repetition. You write that South Carolina is considering using "a converted 12/15 passenger van" to transport the students.

By way of background, the National Highway Traffic Safety Administration (NHTSA) is authorized to issue and enforce Federal motor vehicle safety standards applicable to new motor vehicles. Our statute at 49 U.S.C. 30112 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 defines a "school bus" as any vehicle that is designed for carrying a driver and more than 10 persons and which NHTSA decides is likely to be "used significantly" to transport "preprimary, primary, and secondary" students to or from school or related events. 49 U.S.C. 30125. By regulation, the capacity threshold for school buses corresponds to that of buses -- vehicles designed for carrying more than ten (10) persons. For example, a 15-person van that is likely to be used significantly to transport school students is a "school bus." Persons selling or leasing a new 15-person van for such use must sell or lease a van that meets our school bus standards.

We believe that our school bus standards would not apply to a new bus sold to the facility because most of the participants in the program are adults. Our school bus standards do not apply to buses used for adults who are older than the ages of secondary school students. (The legislative history of our statute does not indicate an intent to apply the school bus standards to buses sold to transport adults. Accordingly, we have always interpreted our school bus definition to exclude buses sold for adult transportation, e.g., buses sold to transport college students.) New buses sold for transporting the adults in your program therefore need not comply with Federal school bus standards. If a dealer were to sell or lease a new bus (e.g., a 15-passenger van) to transport the adults, the dealer need not sell or lease a school bus.

Please note, however, that our school bus regulations might apply if a significant number of persons of secondary school age were regularly being transported by bus. You indicate that some of the students may be under 18 years of age. We would consider persons under 18 years of age receiving instruction by your Department to be students. Therefore, if a dealer were to sell or lease a new bus or new 15-passenger van that would be "likely to be used significantly" by students instructed by your Department for transportation "to or from school or an event related to school," the dealer must sell your Department a bus that meets NHTSA's school bus standards.

To clarify a point you made referring to requirements for the "proper use" of the converted van, NHTSA's safety standards directly regulate only the manufacture and sale of new motor vehicles, not their use. Federal law does not address the issue of whether you may use a vehicle which does not comply with Federal safety standards to transport school students. Each State is free to impose its own standards regarding use of motor vehicles, including school buses. South Carolina's laws determine whether you may use the bus for the purposes you have in mind. Please ensure that use of the 15-passenger van meets applicable Federal and State requirements for transporting persons with special needs.

If your Department is training or rehabilitating school-age children, we would strongly urge that you provide buses certified as meeting NHTSA's school bus standards to transport them. School buses are one of the safest forms of transportation in this country. Using 12- to 15-person vans that do not meet NHTSA's school bus standards to transport school age students could result in increased 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 attached 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.

In the abstract of its report, the NTSB issued several Safety Recommendations, including the following that was directed to child care providers such as the National Association of Child Care Professionals, the National Child Care Association, and Young Mens' and Young Women's Christian Associations:

Inform your members about the circumstances of the accidents discussed in this special investigation report and urge that they use school buses or buses having equivalent occupant protection to school buses to transport children.

I hope this information is helpful. If you need further information please feel free to contact Dorothy Nakama at this address or at (202) 366-2992.

Sincerely,
Frank Seales, Jr.
Chief Counsel
ref:VSA#571.3
d.3/30/2000

ID: nht95-7.7

TYPE: INTERPRETATION-NHTSA

DATE: September 29, 1995

FROM: Edward J. Googins -- Chief of Police, City of South Portland (Maine)

TO: John Womack -- Acting Chief Council, NHTSA

TITLE: NONE

ATTACHMT: 12/8/95 letter from Samuel J. Dubbin to Edward J. Googins (A43; Std. 222)

TEXT: The question has been raised as to whether our DARE bus needs to have seat belts installed. This bus was given to us by the school department for use by the DARE officer to transport DARE students to activities. These activities occur for the most part outside of the regular school day.

The bus is a 1982, International - Model #S1700 with a GVWR of 20,200. It has stated seated capacity of 35 but due to the size of the students involved, it is difficult to get that many seated. The bus, in accordance to state law, had the flashing red and yellow lights removed.

I would appreciate a response from you as to whether this bus in its present use requires the installation of seat belts.

Thank you for your time.

Abuse Resistance Education Drug = DARE

5th & 6th grades

Bus was manufactured as a school bus.

ID: nht95-7.8

TYPE: INTERPRETATION-NHTSA

DATE: October 1, 1995

FROM: Patrick Holmes

TO: To Whom it May Concern

TITLE: NONE

ATTACHMT: 12/8/95 letter from Samuel J. Dubbin to Patrick Holmes (Std. 218; A43)

TEXT: To whom it may concern.

Due to the high cost of buying a helmet from any shops. I have decided to manufacture a helmet for my own use. What I would like to know is if I follow all specifications that the Dept. of Transportation says I must in order to certify the helmet as D.O.T. approved may I than certify my homemade helmet?

I would appreciate an answer to this question at your earliest convenience. Thank you.

ID: nht95-7.9

TYPE: INTERPRETATION-NHTSA

DATE: October 1, 1995 EST

FROM: Adam Englund -- Electric Bicycle Company, LLC

TO: John Womack -- Acting Chief Counsel, NHTSA

TITLE: Request for Interpretation

ATTACHMT: 1/19/96 letter from Samuel J. Dubbin to Adam Englund (A44; Std. 108; Std. 116; Std. 119; Std. 120; Std. 122)

TEXT: The Electric Bicycle Company, LLC, 3601 Empire Avenue, Burbank CA, 91505 (hereinafter, "EBC") is a limited liability company organized under the laws of the State of Nevada. EBC hereby requests an interpretation with respect to certain Federal Motor Vehicle Safety Standards for the EV Warrior, an electric/human-powered bicycle to be manufactured by EBC.

Confidentiality

Certain portions of this document contain confidential information and trade secrets related to our product and marketing strategy. We have carefully calculated our market position. Based on that market analysis, we spent a great deal of time, money and effort to develop the EV Warrior. As we are about to launch our initial production run, we are aware that other electric bicycles are also entering the market. Our insistence on compliance with FMVSS sets us apart from our competitors. As such, the very existence, and certainly the content of this Request for Interpretation is confidential and constitutes trade secrets.

We seek an interpretation of certain Federal Motor Vehicle Safety Standards with respect to the electric bicycle that we are about to manufacture.

CONFIDENTIAL

[The EV Warrior is essentially a multi-speed bicycle with attached electric motors that drive the rear wheel through a friction drive wheel against the rear tire. The transmissions of each power source - human and electric - are entirely separate. Whereas the bicycle employs six speed derailleur shifting, the electric motor powers the rear wheel through a single drive wheel on a roller clutch against the tire. The EV Warrior employs many standard bicycle components, including wheels, tires, cantilever or optional hydraulic disc bicycle brakes, "Grip Shift" gear shifters, cranks and pedals

The power pack is integrated into the chassis of the cycle and is not intended to be removed, especially by the consumer. However, were the electric assist motor to be removed, the device would still function fully as a bicycle. (Without the assist motor, the EV Warrior's equipment would be regulated under 16 CFR 512 by the Consumer Products Safety Commission - as a bicycle.)

Using the electric motor alone, the EV Warrior is capable of traveling approximately 15 miles at 12 m.p.h. Its maximum speed is under 25 m.p.h. Even with pedaling, it is difficult to push the bike beyond 25 m.p.h. Its total weight is approximately 85 lbs. Separate service brake systems operate the front and rear brakes, respectively.]

A. License Plate Attachment

CONFIDENTIAL

[We would like you to confirm our understanding that marine grade hook-and-loop material is an acceptable method of attaching the license plates. In my conversation with Luke Loy, NHTSA Safety Compliance Engineer, he advised me that since the FMVSS are silent on this issue, such attachment is acceptable.]

B. Adjustability of Headlight Beam, Standard No. 108 Table III, "Headlamps"

This Standard specifies the applicable SAE Recommended Practice for "Headlamp Mountings", SAE J566, Jan. 60. It recommends that:

"Headlamps and headlamp mountings shall be so designed and constructed that:

1. The axis of the light beams may be adjusted to the left, right, up, or down from the designed setting, the amount of adjustability to be determined by practical operating conditions and the type of equipment."

CONFIDENTIAL

One primary rationale for beam adjustability is to compensate for changes in a vehicles suspension system. However, the EV Warrior has no springs or shocks. Rather, it uses a fixed frame and fork. In our experience, bicycle headlamps are continually knocked out of alignment. So, we have designed the headlamp to be secured such that the aim will not be disturbed under ordinary conditions of service [per SAE J566, Jan. 60, par.]

We request an interpretation that the practical operating conditions for a motor driven cycle, whose top speed is under 25 mph and whose operation will correlate to a normal bicycle, dictate that its headlamp (which meets all other headlamp requirements) need not be adjustable.

C. Hydraulic system biodegradable synthetic oil. Standard No. 116, "Motor vehicle brake fluids".

CONFIDENTIAL

[Our basic model EV Warrior employs mechanically activated wire cable "cantilever" brakes, front and rear. However, we currently offer a "standard option" hydraulic front disc brake. This brake, made by Sachs of Germany, is far superior to virtually any cantilever brake. It offers excellent braking power; simplicity in set-up, maintenance and operation; reliability; and fine modulation.

The Sachs hydraulic brake uses a green colored biodegradable synthetic oil, Shell Naturelle HF-E 15, that is not in contact with any elastomeric components made of styrene and butadiene rubber (SBR), ethylene and propylene rubber (EPR), polychloroprene (CR) brake hose inner tube stock or natural rubber (NR)."] Standard No. 116, S4. states that:

"Brake fluid means a liquid designed for use in a motor vehicle hydraulic brake system in which it will contact elastomeric components made of styrene and butadiene rubber (SBR), ethylene and propylene rubber (EPR), polychloroprene (CR) brake hose inner tube stock or natural rubber (NR).",

and,

"Hydraulic system mineral oil means a mineral-oil-based fluid designed for use in motor vehicle hydraulic brake systems in which the fluid is not in contact with components made of SBR, EPR or NR."

The synthetic oil employed by the Sachs system is neither a "Brake fluid" because it is not in contact with any components made of SBR, EPR, CR or NR, nor is it an "Hydraulic system mineral oil" as it is not petroleum based.

"S5. Requirements This section specifies performance requirements for DOT 3, DOT 4 and DOT 5 brake fluids; requirements for brake fluid certification; and requirements for container sealing, labeling and color coding for brake fluids and hydraulic system mineral oils . . ."

CONFIDENTIAL

[The standard sets out the requirements for "brake fluid" and other requirements for "hydraulic system mineral oil. However, there are no requirements under S5. for fluids that do not fall within either of these definitions. EBC seeks an interpretation that, by omission, there are no requirements under FMVSS 116 for the hydraulic system biodegradable synthetic oil as used in the Sachs hydraulic brake system.]

D. Hydraulic Service Brake System Standard No. 122, "Motorcycle brake systems", S5.1.2

CONFIDENTIAL

[The Sachs brake differs from traditional hydraulic systems in that it is a closed system that employs a simple actuator instead of a master cylinder with a reservoir. In open systems, to compensate for brake pad wear, the master cylinder system requires a reservoir. However, the Sachs brake compensates for brake pad wear through a simple screw adjustment in the brake lever. This is an excellent system that is commensurate with the weight and simplicity of our electric bicycle. It is, in fact, much easier to adjust than any cable type bicycle brake.]

Standard No. 122, S5.1.2 Hydraulic service brake systems, requires that:

"Each motorcycle equipped with a hydraulic brake system shall have the equipment specified in S5.1.2.1 and S5.1.2.2."

S5.1.2.1 States that:

"Each master cylinder shall have a separate reservoir for each brake circuit, with each reservoir filler opening having its own cover, seal and cover retention device . . ." (emphasis added) CONFIDENTIAL

[Since the Sachs hydraulic system employs no master cylinders, a simple calculation bears out the premise that when there is no master cylinder, the number of master cylinder reservoirs required is zero.

Alternatively, this standard seems to assume that an hydraulic brake system requires a master cylinder reservoir for its proper operation and does not contemplate an actuator system. We request an alternate interpretation that this standard applies to an open system that requires a reservoir, but not to a closed, actuator system as employed by the EV Warrior. The reservoir serves no purpose in a closed system.

If your interpretation agrees with ours, that a reservoir is not required, then we hope you will also agree that, a fortiori, labeling requirements of S5.1.2.2, for a non-existent reservoir would also not be required.]

E. Tire requirements, Standard No. 119, "Pneumatic tires for vehicles other than passenger cars", S6. Requirements.

CONFIDENTIAL

[The EV Warrior's electric motor will propel the vehicle at no more than 25 m.p.h. (40 k.p.h.). Consequently, the maximum speed of the EV Warrior is about the same as a regular bicycle - and considerably slower than racing cyclists. Even when the motor is operating at near peak efficiency (and hence reduced speed), the batteries will last no more than 15 miles (24 kilometers) or 1.5 hours. Unlike an internal combustion engine whose fuel tank can be filled in seconds, the EV Warrior generally takes over-night, or at best, a couple of hours to re-charge. Thus there is necessarily a period between each 1-1/2 hour trip when the tires will cool down. It is literally impossible for the EV Warrior to obtain the speeds, or travel anywhere near the non-stop distances contemplated by Standard No. 119]

Standard No. 119, S7.2 Endurance test procedures, require the test for motorcycle tires to be performed at a speed of 55 m.p.h. (90 k.p.h.) for 47 hours.

Standard No. 119, S7.4 High speed performance test procedures, requires testing at speeds of 50 m.p.h. (80 k.p.h.) for two hours, 75 m.p.h. (121 k.p.h.) for 30 minutes, 80 m.p.h. (129 k.p.h.) for 30 minutes and 85 m.p.h. (137 k.p.h.) for 30 minutes.

CONFIDENTIAL

Clearly, these standards are inappropriate for a low-speed, short range electric bicycle such as the EV Warrior. It is not germane whether the EV Warrior's tire/rim combination remains undamaged at 55 mph, because the vehicle can never attain that speed. Similarly, the performance characteristics of the tires and rims after 47 hours is not apropos because the, vehicle cannot be operated continuously for that duration. Because it must be recharged after 1.5 hours for 30 minutes to 8 hours (thereby allowing the tires to cool), such a continuous-use endurance test is meaningless. As such, we request an interpretation that, Standard No. 119 cannot reasonably be applied to such a low speed, short range vehicle as the EV Warrior.

We at EBC have joined together to produce an entirely new form of transportation. Children are first introduced to transportation with bicycles. Electric bicycles will allow the smoothest and most natural transition from bikes to electric vehicles. As the first mass marketed electric vehicle, the EV Warrior vehicle will introduce an entire generation to electric vehicles and hasten the electric transportation revolution.

ID: NMEDA_questions

Mr. Jacques Bolduc
SRD Bolduc, Inc.
20, 34^th Ave O.
Blainville, QC
J7C 2X9
Canada




Dear Mr. Bolduc:

This responds to your letter regarding Federal Motor Vehicle Safety Standard (FMVSS) Nos. 403, Platform lift systems for motor vehicles, and 404, Platform lift installations in motor vehicles. Your letter contained a series of questions compiled by you and the National Mobility Equipment Dealers Association regarding the applicability of FMVSS Nos. 403 and 404. I have addressed each of your questions below.

1. Is there a specific manufacturing date for the vehicle?

49 CFR Part 567 requires vehicle manufacturers to affix a certification label to a motor vehicle. Section 567(g)(2) requires the certification label to include the month and year of manufacturer. As originally established, vehicle and lift manufacturers were required to comply with FMVSS Nos. 403 and 404 beginning December 27, 2004. We understand that your question reflects concern with the potential difficulty in determining whether a vehicle manufactured in December 2004 would be required to comply with FMVSS No. 404 given that the manufacture date does not provide the day of manufacture.

On December 23, 2004, the agency published a final rule that extended the compliance date of FMVSS No. 403 until April 1, 2005, and compliance date of FMVSS No. 404 until July 1, 2005 (69 FR 76865). The new compliance dates are at the beginning of the months. Therefore, the manufacture date provided on the certification label provides sufficient information to determine whether a vehicle was manufactured on or after the FMVSS No. 404 compliance date.

2. If a modifier has a client that refuses to use anything but a rotary lift what options are available?

FMVSS No. 403 applies to all platform lifts designed to carry passengers into and out of motor vehicles. In instances in which different requirements and / or variations in test procedures are necessary for rotary lifts, the regulation provide the appropriate specifications; e.g. , S7.7.3. We are unaware of any technical impediments that would prevent the manufacture of rotary platform lifts, which comply with FMVSS No. 403.

3. Follow-up to question 2. It is very unlikely that the rotary type lift can be made compliant, at least in the short term. If the lift user cannot use a more traditional type lift that is compliant to FMVSS 403, is there any way for him to legally have this type of non-compliant lift installed in his vehicle?

As stated in our response to Question 2, we are not aware of any reason that would prevent the manufacture of compliant rotary platform lifts. Nevertheless, a vehicle owner may have a non-complaint lift (i.e. , a lift manufactured before the compliance date of FMVSS No. 403) installed on a vehicle so long as the installation is performed after the first retail sale of the vehicle and the vehicle was not originally certified as complying with FMVSS No. 404.

See Letter to Deny Betrand, January 1, 2005 (copy enclosed); and Letter to Michelle Filippi, February 11, 2005 (copy enclosed).

4. What about existing bids that are with government agencies that rely on the pre-FMVSS Nos. 403 and 404 prices.

We cannot comment on the practices of other government agencies. FMVSS Nos. 403 and 404 were established on December 27, 2002 (67 FR 79416). This provided industry with a two-year lead time to make the necessary preparations for compliance. As stated above, NHTSA recently extended the compliance dates for these standards providing additional time for these preparations.

5. Follow-up to question 4. Since the increase in cost for the compliant lift is still unknown, how could we have provided a quote to our customers last year?

As stated above, industry was originally provided a two-year lead time prior to the effective dates of the standards.

6. Manufacturers are sending out notices to buy up lifts that were manufactured prior to the compliance date so that they have an inventory of pre-FMVSS No. 403 lifts. Lift manufacturers have stated these lifts may be installed on vehicles without FMVSS Nos. 403 and 404 compliance concerns. Is this correct?

As established in the December 2004 final rule, lifts manufactured prior to April 1, 2005 are not required to comply with FMVSS No. 403. Lifts manufactured prior to the compliance date may be held in inventory and sold without having to comply with FMVSS No. 403. Under FMVSS No. 404 however, all vehicles with a manufacture date of July 1, 2005 and later that are manufactured with a platform lift must comply with the vehicle standard. Vehicles subject to FMVSS No. 404 must be equipped with an FMVSS No. 403-compliant lift.

Generally, FMVSSs apply to motor vehicles and motor vehicle equipment up to their first retail sale. See 49 CFR 30112. After the first retail sale of a vehicle, manufacturers, distributors, dealers, and repair businesses are prohibited from "making inoperative" any device or element of design installed on or in a motor vehicle in compliance with an applicable standard. 49 U.S.C. 30122.

If after first retail sale, a platform lift is added to a vehicle that was not originally required to comply with FMVSS No. 404, regardless of the vehicle manufacture date, a modifier is not required to bring that vehicle into compliance with FMVSS No. 404; i.e. , there is no requirement to equip the modified vehicle with an FMVSS No. 403-compliant lift.

See Letter to Deny Betrand and Letter to Michelle Filippi, referenced above.

7. S6.13.1 of FMVSS No. 403 requires platform lift manufacturers to specify the vehicles on which the lift is designed to be installed. Vehicles may be identified by listing the make, model, and year of the vehicles for which the lift is suitable, or by specifying the design elements that would make a vehicle an appropriate host for the particular lift, and for which the platform lift manufacturer has certified compliance. How are design elements to be determined?

It is the responsibility of the lift manufacturer to determine the design elements that make a vehicle an appropriate host for a lift. If a lift manufacturer chooses to provide design elements as opposed to specifying a specific host vehicle, it must ensure that the design elements are sufficient to maintain a lifts compliance with all of the applicable requirements of FMVSS No. 403 when installed and provide the design element information in the installation instructions.

8. Follow-up to question 7. In the event that the design elements specified by the lift manufacturer are too complex or specialized for an average installer to understand, how does the installer determine it has complied with FMVSS No. 404?

In instances in which a vehicle must comply with FMVSS No. 404, it is the responsibility of the party installing the lift to ensure that the vehicle complies with the standard; the lift is FMVSS No. 403 compliant; and the lift is installed in accordance with the lift manufacturers instructions. If an installer has questions regarding the vehicle design requirements specified by the platform lift manufacturer, we suggest that the installer contact the lift manufacturer.

9. Follow-up to question 7. If the installation of a platform lift on a vehicle specified by the platform lift manufacturer takes the vehicle out of compliance or makes inoperative a regulated safety feature (for example, the lift manufacturer may require that the vehicle structure be such that it must be altered in a manner that could affect crashworthiness), can we assume that the lift manufacturer is assuming compliance responsibility because it is instructing the installer to alter the vehicle?

It is the responsibility of the business installing the lift to ensure that the installation does not take the vehicle out of compliance with any applicable FMVSS. It is the responsibility of the lift manufacturer to certify that its products comply with all applicable FMVSSs before the products can be offered for sale. If a lift is installed after the first retail sale of a vehicle, it is the responsibility of the installer, if that installer is a manufacturer, distributor, dealer, or repair business, to ensure that the installation does not take a vehicle out of compliance with any applicable FMVSS. See 49 U.S.C. 30122.

10. What if a client wants to transfer their existing lift (built before 12/27), because they cannot afford a new lift, into a new and/or used vehicle (built after 12/27)? How does the modifier stay in compliance?

Refer to the response to Question # 6.

11. Follow-up to question 10. Situation:Several customers lease vans for two or three years with lifts that are used only occasionally. As these lifts are still in good shape at the end of the lease, the normal procedure has been to transfer the current customer owned (used) lift to the replacement lease van. Lifts are usually replaced every other lease.
    Questions:
    
    • Can a customer owned (used) non FMVSS No. 403-complaint lift be transferred to a customer owned van that is manufactured after the FMVSS No. 404 compliance date?
    • Can a customer owned (used) non FMVSS No. 403-compliant lift be transferred to a new replacement van built after the FMVSS No. 404 compliant date?
    • Can a new non FMVSS No. 403 compliant lift in inventory be installed in a customer owned van built after the FMVSS No. 404 compliant date?

Again, please refer to the response to Question # 6. Also, see the response to Question #3.

12. Can a repair business (modifier) disconnect a regulated feature that is malfunctioning and is the cause of user safety concerns, for example a continuously faulty switch that makes the deploy function inoperable?

As previously explained, 49 U.S.C. 30122 prohibits vehicle manufacturers, distributors, dealers, and repair businesses from "making inoperative" any device or element of design installed on or in a motor vehicle in compliance with an applicable standard. However, removal of a malfunctioning component would not violate the "make inoperative provision" because that element or design would already be inoperative.

A modifier removing a defective component would have to ensure that the removal would not make inoperative any other aspect of the lift. Further, we would encourage the proper repair or replacement of a malfunctioning component as opposed to its removal.

13. Follow up to question 12. If it appears that the malfunction discussed in question 12 is a design defect, can a modifier make that feature inoperative, or otherwise modify the lift manufacturers design so as to ensure the safety of the lift user?

As stated in our response to Question # 12, removal of a malfunctioning component would not make inoperative an element or design installed on the lift in compliance with the standard because that element would already be inoperative. A modifier removing a defective component would have to ensure that the removal would not make inoperative any other aspect of the lift. Again, we would encourage the proper repair or replacement of a malfunctioning component as opposed to its removal.

Further, if a modifier believes that a platform lift has a design defect, he or she should contact our Office of Defects Investigation at 1-888-DASH-2-DOT (1-888-327-4236).

14. Follow up to question 12. If a customer who has an FMVSS No. 403-compliant lift has a service problem down the road and is unable or unwilling to pay for the repair of one of the interlocks and demands the modifier get the lift working without the interlock, can this be done? What is the liability from the modifier's standpoint?

There is no affirmative duty for a repair business to repair a platform lift so that it is brought into compliance with FMVSS No. 403 in instances in which the platform lift was not in compliance with FMVSS No. 403 prior to initiation of the repair work.

Potential liability questions should be addressed to a private attorney who is familiar with tort law.

15. Follow up to question 12. If a customer disconnects an interlock and later brings the lift in for service, can the modifier repair the lift without being required to bring the lift back into compliance?

Refer to the response to Question # 14 above.

16. Can a business recondition an old lift (manufactured before 12/27) that he took as a trade-in and install it in a vehicle manufactured after 12/27?

FMVSS No. 403 applies to lifts manufactured on and after April 1, 2005. A lift manufactured prior to that date would not need to comply with the standard. Regarding the installation of a reconditioned non FMVSS No. 403-compliant lift, please refer to the response to Questions # 3 and # 6.

17. Whose responsibility is it to supply the interlock and platform lighting for the lift? Currently, both are available from the lift manufacturers but only as options. Do these systems need to be supplied with the lift?

On October 1, 2004, FMVSS No. 403 was amended with respect to the interlock and lighting requirements (69 FR 58843). As originally established a platform lift was required to be equipped with all of the necessary interlocks. In the October 2004 final rule we recognized that in many cases the vehicle sensors and switches needed by an interlock system may already be part of an existing vehicle system. S6.10.2 of FMVSS No. 403 now permits a platform lift manufacturer to provide less than a full interlock system intended to work in conjunction with a vehicles existing components, as long as when the platform lift is installed according to the installation instructions, the interlock requirements of S6.10.2.1 through S6.10.2.7 are met.

The October 2004 final rule also amended the platform lift lighting requirements. The requirement to provide lighting for a public use lift is now the responsibility of the vehicle manufacturer under S4.1.5 of FMVSS No. 404.

18. If the vehicle being equipped with a lift does not have an owners manual, are we to understand that the lift manufacturers manual does not have to be given to the vehicle owner?

S6.12 of FMVSS No. 403 requires that platform lift manufacturers provide inserts for a vehicle owners manual to provide specific information about the platform lift. S4.2 of FMVSS No. 404 requires that if a vehicle is equipped with an owners manual, the owners manual must contain the inserts. The inserts provide information that is critical to the safe operation of a platform lift. If a vehicle were not accompanied by an owners manual we would still expect the final lift customer to be provided a document with the information required in S6.12.1 through S6.12.4.

19. The 403 compliant lift has several new features, some of which a customer may not want. Must a lift be installed with all of the elements provided made operational (i.e. , threshold warning device, lights, interlock, etc. )?

If a vehicle is required to comply with FMVSS No. 404, any lift installed on that vehicle must comply with FMVSS No. 403 and the platform lift as installed must continue to comply with all the applicable requirements of FMVSS No. 403. See S4.1.4 of FMVSS No. 404.

The agency recognizes that the installation of a compliant lift onto a vehicle that is not required to comply with FMVSS No. 404 may require removal or alteration of elements installed on the lift for purposes of compliance with FMVSS No. 403; e.g. , removal or alteration of the threshold warning system or interlock system. Because the vehicle is not required to be equipped with an FMVSS No. 403 compliant lift, we would not consider alterations to the lift in this situation as making the lift inoperative with FMVSS No. 403 within the meaning of 49 U.S.C. 30122.

20. Can the end user-owner disconnect the threshold warning device once the FMVSS No. 403/404 compliant lift/vehicle is home in their driveway?

The "make inoperative" provision previously discussed does not apply to modifications a vehicle owner makes to his or her own vehicle. Our standards do not prevent a vehicle owner from disconnecting the threshold warning device on their own vehicle. However, State law may prevent such a modification.

21. Do I have to buy a wheelchair lift-vehicle interlock with the 403 compliant lift?

As previously stated, S6.10.2 through S6.10.2.7 establish the interlock requirements. Lift manufacturers may either provide all the interlocks necessary to meet the requirements or provide less than a full interlock system intended to work in conjunction with a vehicles existing components, as long as when the platform lift is installed according to the installation instructions, the interlock requirements are met.

22. Does a 403 compliant lift have to include a wheelchair lift-vehicle interlock?

Refer to the response to Question # 21.

23. When wiring the lift-vehicle interlock, must I use the "lift stowed" signal from the lift as an input to verify if the lift is stowed or deployed?

S4.1.3 of FMVSS No. 404 requires that platform lifts must be installed in accordance with the installation instructions or procedures provided pursuant to S6.13 of Standard 403. Additionally, S6.13.2 of FMVSS No. 403 requires platform lift manufacturers to provide procedures for operational checks that must be performed to verify that a lift is fully operational. If the installation instructions or the operational checks specify the use of a "lift stowed" signal, then that signal must be relied upon for compliance under FMVSS No. 404.

24. What determines if I can use a Public Use or Private Use lift in my vehicle?

S4.1.1 of FMVSS No. 404 requires that lift-equipped buses, school buses, and multipurpose passenger vehicles, other than motor homes, with a gross vehicle weight rating (GVWR) greater than 4,536 kg (10,000 lb) be equipped with a public use lift certified as meeting public use lift requirements of FMVSS No. 403.

25. Can a private use lift, as defined under FMVSS No. 403, be equipped with platform lighting?

S4.1.5 of FMVSS No. 404 establishes platform lighting requirements for vehicles equipped with a public use lift. Vehicles equipped with private use lifts are not required to be equipped with platform lighting. However, nothing in FMVSS Nos. 403 and 404 prevents a private use lift from being equipped with platform lighting.

26. If the customer wants an FMVSS No. 403-compliant, public use lift installed on a vehicle not required to be equipped with a public use lift, must the platform lighting be provided?

If a public use lift, as defined in FMVSS No. 403, is installed on a vehicle that must comply with FMVSS No. 404 then platform lighting must be provided. S4.1.5 of FMVSS No. 404 requires that a public use lift, as installed, have a light or lighting system that provides the required level of illumination.

27. How does an OEM/dealer/customer determine whether a vehicle was manufactured before the FMVSS No. 404 compliance date?

49 CFR Part 567 requires vehicle manufacturers to affix a certification label to a motor vehicle. Section 567(g)(2) requires the certification label to include the month and year of manufacture.

28. On an FMVSS No. 403-compliant Private Use lift installation, do I have to use the "park brake" as an input for the lift-vehicle interlock?

S6.10.2 through S6.10.2.7 specify the interlock requirements for all FMVSS No. 403-compliant lifts. An interlock must prevent operation of a platform lift from a stowed position unless the vehicle transmission is placed in park or the transmission is placed in neutral and the parking brake is actuated or the vehicle service brakes are actuated by means other than the operator depressing the vehicles service brake pedal (see S6.10.2.2).

I hope you find this information useful. If you have any additional questions please contact Mr. Chris Calamita of my staff at (202) 366-2992.

Sincerely,

Jacqueline Glassman
Chief Counsel

Enclosures
ref:403#404
d.2/11/05

ID: nokiantyres(4-7-05)

LaDonna Bowers
Manager, Customer Service--Distribution
Nokian Tyres, Inc.
339 Mason Road
La Vergne, TN 37086




RE: Interpretation of Foreign Defect Reporting

This is in reply to your E-mail letter of March 10, 2005, to Andrew DiMarsico of my staff requesting a clarification of the reporting of tires involved in a foreign recall. You present the following hypothetical to illustrate your concerns:

A tire, of a certain production week, has been manufactured in foreign country A and sent to retailers in foreign country A and foreign country B. None of these tires have been purchased by a consumer in either foreign countries A or B. Due to subsequent quality control by the manufacturer, the manufacturer will recall these tires from both foreign countries A and B (total quantity less than 40 tires).

You ask whether there is a need to report a recall of these tires which have not been sent to, or purchased in, the USA, but will likely be sent to, and sold in, the USA in the future in limited quantities and from subsequent production weeks?

The answer is no. The National Highway Traffic Safety Administrations (NHTSA) regulations concerning foreign defect reporting are located at 49 C.F.R. Part 579, Subpart B. Section 579.11 requires manufacturers to report to NHTSA within five days of determining to conduct a safety recall or other safety campaign in a foreign country covering a motor vehicle, item of motor vehicle equipment, or tire that is identical or substantially similar to a vehicle, item of equipment, or tire sold or offered for sale in the United States. With respect to the facts presented in your hypothetical, the tires have not been shipped to or offered for sale in the United States. Therefore, the manufacturer of the tire in your hypothetical would not have to report the recall determination to NHTSA at this time.

If you have any questions, you may phone Andrew DiMarsico of my staff at (202) 366-5263.

Sincerely,

Jacqueline Glassman
Chief Counsel

ref:579
d.4/19/05

ID: noll.ztv

Mr. Frederick W. Noll
Director of Manufacturing
Orange Blossom Quick Loader
4 Anderson Drive
Albany, NY 12205

Dear Mr. Noll:

This responds to your letter of February 28, 1997, regarding the rear lamp location requirements of Motor Vehicle Safety Standard No. 108. You ask whether the location of rear taillamps and turn signal lamps shown in the photographs you enclosed comply with the requirements of Standard No. 108. You comment that "the center bar is the only practical area. . . ."

Table II of Standard No. 108 requires rear taillamps and turn signal lamps on vehicles whose overall width exceeds 2032 mm (80 inches) to be located "on the rear" and "as far apart as practicable." In certifying compliance of the vehicle with all applicable Federal motor vehicle safety standards, the manufacturer is certifying that the trailer also meets the rear lamp and reflector location requirements of Standard No. 108.

Unless the manufacturer's determination of practicability is clearly erroneous, it is the policy of this agency not to contest it. In this instance, you have located the lamps on the "center bar" because "the ramp will extend from the original frame of the trailer and we would not be in compliance with the lamps only on the outside corners." We accept, therefore, your representation that the rear taillamps and turn signal lamps shown on the photographs you enclosed are located "as far apart as practicable."

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

Sincerely,

John Womack

Acting Chief Counsel

ref:108

d:4/4/97