Mr. Paul Fiore

Director of Government and Business Relations

Tire Industry Association

1532 Pointer Ridge Place, Suite G

Bowie, MD  20716

Dear Mr. Fiore:

This letter responds to your letter to the Administrator on behalf of the Tire Industry Association (TIA) raising concerns that the tire industry has with the agencys tire pressure monitoring systems (TPMS) regulations.  Because your letter raises legal questions, I have been asked to respond.

Your letter states that the TIA represents all segments of the tire industry, including manufacturers, repair businesses, dealers, recyclers, retreaders, and suppliers.  You state that your members have encountered concerns with TPMS malfunction indicator lamps illuminating after the performance of certain services and repairs on vehicles. You raise issues confronted by your members when encountering TPMS systems and ask whether actions by service providers violate the make inoperative provision of the Motor Vehicle Safety Act.  The make inoperative provision (49 USC 30122(b)) prohibits manufacturers, distributors, dealers, or motor vehicle repair businesses from knowingly making inoperative, in whole or in part, 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. 

You put forth four scenarios faced by your membership.  You request clarification from NHTSA on the applicability of the make inoperative provision.  We address each scenario in turn below.  For each scenario, we address only the applicability of the make inoperative provision in the context of Federal Motor Vehicle Safety Standard (FMVSS) No. 138, Tire Pressure Monitoring Systems.  We have stated in the past that TPMS requires special consideration because TPMS itself is analogous to a malfunction indicator.[1]  Thus, our response to all of the scenarios you raise regarding the make inoperative provision may not be applicable to all FMVSSs.

Please note that in those circumstances in which Federal law does not require dealers or owners to repair a malfunctioning TPMS system, NHTSA nevertheless strongly encourages such repair so that the vehicle continues to provide maximum safety protection.  We note that State tort, contract, or other laws governing motor vehicle repair businesses may impose additional requirements upon your members. 

Scenario #1:  If a motorist is made aware of an inoperative TPMS sensor and declines to purchase a new one, does the service provider knowingly make the system inoperative and violate 49 USC 30122(b) by removing the dead or damaged sensor and replacing it with a standard snap-in rubber valve stem?

Our response:  For the purpose of this response, we assume that you are referring solely to TPMS sensors that are integrated with the valve stem.  Moreover, we assume that the sensor was inoperative before a customer brought the vehicle to the repair business.  An illuminated malfunction indicator lamp could be an indication of an inoperative sensor.  We also assume that you are describing a part within the TPMS system that cannot be repaired.  In that event, a motor vehicle repair business would not be violating 49 USC 30122(b) by removing an inoperative or damaged TPMS sensor and replacing it with a standard snap-in rubber valve stem.  The removal of a malfunctioning TPMS sensor that is integrated with a valve stem would not violate the make inoperative provision because the element of the system was already inoperative.  However, a motor vehicle repair business that goes on to make any other element of the TPMS system inoperative, for example, by disabling the malfunction indicator lamp, would violate the make inoperative provision.

Scenario #2:  If a motorist purchases a set of aftermarket winter tires and wheels and declines to purchase new TPMS sensors, does the service provider violate 49 USC 30122(b) because they would be installing assemblies that knowingly make the system inoperative?

Our response:  In this scenario, we assume that the vehicle has a functioning TPMS system at the time he or she purchases aftermarket tires and wheels.  In that case, a service provider would violate the make inoperative prohibition of 49 USC 30122(b) by installing new tires and wheels that do not have a functioning TPMS system.  To avoid a make inoperative violation, the service provider would need to decline to install the new tires and rims, use the TPMS sensors from the original wheels (if they are compatible), or convince the motorist to purchase new TPMS sensors and ensure that the sensors are properly integrated with the vehicles TPMS system.

You suggest that, if the installer does not disable the malfunction indicator lamp, the driver would still be warned that the TPMS system is inoperative and there would be no violation of 49 USC 30122(b).  However, the illumination of the malfunction indicator lamp is inapposite to this scenario.  By removing tires and wheels with functioning TPMS sensors and replacing them with tires and wheels without TPMS sensors, the repair business has knowingly removed an essential part of the TPMS system.  This is precisely the type of action that the make inoperative provision of 49 USC 30122(b) is intended to prohibit.

Scenario #3:  If a service provider inadvertently breaks a non-defective sensor and is unable to locate a replacement part immediately, is it a violation of 49 USC 30122(b) to allow the vehicle to return to service if the service provider makes arrangements to obtain a replacement part and install it at a future date?  And does the answer change if the service provider damages a sensor and then does nothing to replace it or if the customer specifically directs the service provider to finish service without replacing the damaged part (i.e., the customer is in a hurry or wants to have the work done somewhere else)?

Our response:  In this scenario, we again presume that you are referring solely to TPMS systems that are integrated with a valve stem.

Your question raises two issues.  First, to fully analyze how the make inoperative prohibition relates to inadvertent damage would depend on the specific factual circumstances.  We note that the make inoperative provision prohibits a motor vehicle repair business from knowingly mak[ing] inoperative any part of a device or element of design installed on or in a motor vehicle or motor vehicle equipment in compliance with the applicable motor vehicle safety standard.  Generally, we would not consider inadvertent actions to violate the make inoperative prohibition.  However, without more specific facts concerning whether the TPMS was knowingly made inoperative, we cannot provide a more complete response to your question.

To address the second issue raised by your question, the applicability of the make inoperative prohibition to the arrangement of repairs at a future date, we note that the make inoperative prohibition contains an exception for when the repair business reasonably believes the vehicle or equipment will not be used (except for testing or a similar purpose during maintenance or repair) when the device or element is inoperative.  Therefore, as a general matter, a violation of the make inoperative prohibition does not occur until a repair business allows or intends a vehicle to be returned to use.  A motor vehicle repair business would violate 49 USC 30122(b) if it has knowingly made inoperative any part of a device and allowed the vehicle to be used (other than for testing or a similar purpose).  This would be true regardless of whether arrangements have been made for future repair, as there are no other exceptions to the make inoperative prohibition in the statute.

Of course, if the repair business has not knowingly made a device or element inoperative, there would be no need to use this exception, and the motor vehicle repair business would be able to release the vehicle to the customer, with or without making arrangements to complete a repair, without violating 49 USC 30122(b).

We stress that our response relates solely to the applicability of the make inoperative prohibition in 49 USC 30122(b), and does not address whether state or local laws or regulations would impose obligations upon a service provider.

Scenario #4:  If the service provider releases the vehicle to the driver without an illuminated malfunction indicator lamp and then it illuminates after the vehicle has been driven, does that become a violation of 49 USC 30122(b)?  TIA believes that in this situation, the service provider did not knowingly make the system inoperative so there would be no violation.

Our response:  We discussed this scenario in the April 2005 final rule.[2]  The mere illumination of the malfunction indicator lamp after the vehicle has been released by a motor vehicle repair business to the driver would not itself be a violation of the make inoperative provision.  FMVSS No. 138 requires that the malfunction telltale illuminate not more than 20 minutes after the occurrence of a malfunction, meaning that the system may not detect a malfunction that occurred while the car was at the motor vehicle repair business until the car has been released to the owner and driven for some time.  Whether or not a make inoperative violation has occurred would depend only upon whether the motor vehicle repair business knowingly made inoperative an element of the TPMS system that caused the malfunction indicator lamp to illuminate.

I hope this information is helpful.  If you have any further questions, please feel free to contact David Jasinski of my office at (202) 366-2992.

                                                                                    Sincerely yours,

                                                                                    O. Kevin Vincent

                                                                                    Chief Counsel

11/22/2011

Ms. Katherine Hubanks

Director of Sales

Kiddy USA

2420 Wild Iris Lane

Dacula, GA  30019

Dear Ms. Hubanks:

            This responds to your May 31, 2011 letter asking about Federal Motor Vehicle Safety Standard (FMVSS) No. 213, Child Restraint Systems.  You explain that Kiddy USA (Kiddy) is a new manufacturer from Germany of childrens car seats setting up distribution in the United States.  We understand from your letter that the manufacturer has had one or more of its child restraint systems (CRSs) tested at a U.S. test laboratory according to the test procedures of FMVSS No. 213.  You enclose correspondence from an associate who asks whether eight test outcomes conform to FMVSS No. 213. 

            By way of background, the National Highway Traffic Safety Administration (NHTSA) does not approve motor vehicles or motor vehicle equipment, including child restraints, and does not make determination as to whether a product conforms to the FMVSSs outside of an agency compliance test.   Instead, the National Traffic and Motor Vehicle Safety Act (49 U.S.C. 30101 et seq.) sets forth a self-certification process, in which each manufacturer is responsible for certifying the compliance of its products.  Manufacturers are also responsible for ensuring that their products are free of safety-related defects. 

            The following interpretation of FMVSS No. 213 is based on the information provided in your letter, and could change if information becomes available that indicates that the information upon which this letter is based is not as we had understood.  Also, we do not affirm that the test you conducted conforms to FMVSS No. 213s procedures.  Please note that, if we do not comment on an aspect of performance of your CRS shown in your letter, this does not mean we believe a requirement does not apply or that your product would meet the requirement.  Further, we note also that our answers to your questions are somewhat limited by the fact that your questions consisted mainly of photographs and almost no discussion.   

            1.  Kiddys first question asks:  Cracks on screw anchorage of torso shield belt guide --is this conform [sic]?  One of the photographs appears to show a 3-year-old child test dummy in a CRS with a torso shield.  A Type 1 belt is routed over the shield.  Another photograph shows a close-up of the cracks, which are on the underside of the shield, the side not facing the test dummy. 

            Answer:  S5.1.1 and S5.1.1(a) of FMVSS No. 213 apply to this situation.  S5.1.1 and S5.1.1(a) state:

S5.1.1   Child restraint system integrity. When tested in accordance with S6.1, each child restraint system shall meet the requirements of paragraphs (a) through (c) of this section. 

(a) Exhibit no complete separation of any load bearing structural element and no partial separation exposing either surfaces with a radius of less than inch or surfaces with protrusions greater than 3/8 inch above the immediate adjacent surrounding contactable surface of any structural element of the system.

*  *  *  *  *

            S5.1.1(a) prohibits any complete separation of any load bearing structural element, which would include the torso shield.  In the photographs you provided, it is difficult to see the cracks, but it does not appear that the cracks constitute a complete separation.  Also, the cracks do not appear to be on a contactable surface,[1] so the prohibitions of S5.1.1(a) against sharp edges or protrusions does not appear to apply.  Accordingly, it appears that the cracks do not violate S5.1.1(a).

            2.  Kiddy asks:  Lifting of headrest during crash test by top tether because of cracking of head rest adjust area--is this conform [sic]?  A 12-month-old child test dummy was used in the test.  A Type 1 belt and top tether were used with the CRS. 

            Answer:  S5.1.1(b)(1) of FMVSS No. 213 states:

S5.1.1(b)(1)  If adjustable to different positions, remain in the same adjustment position during the testing that it was in immediately before the testing, except as otherwise specified in paragraph (b)(2).

            This requirement is intended to prevent a childs fingers or limbs from being caught between shifting parts of the CRS, and to prevent a childs sliding too far forward and downward (submarining) during a crash.  In a September 4, 1996 letter to Mr. C. Scott Talbot, NHTSA interpreted the requirement as intending to prevent injuries caused by the

repositioning of the seating surface of the restraint (i.e., the reclining feature).  In view of these considerations, we conclude that S5.1.1(b)(1) does not prohibit the head restraint from moving up. 

            However, on a different matter, it is not clear from your letter where the cracking of the head rest adjust area occurred, i.e., whether the cracking was to a load bearing structural element or to a contactable surface.  Under S5.1.1(a), if the cracking was to a load bearing structural element--and we believe this area could qualify as such--there must not be any complete separation of the load bearing structural element.  It was difficult to see the cracks in the photograph so we were unable to tell from the photograph if there was a complete separation.

            If the cracking was to a contactable surface, there must not be any cracks exposing sharp edges or surfaces with protrusions greater than 3/8 inch above the immediate adjacent surrounding contactable surface.  It appears from the photograph that a screw may have been protruding above the surrounding area.  We cannot determine from the photograph whether this area was a contactable surface, or the height of the protrusion.

            3.  Kiddy asks:  [R]etainment of 12 month Crabby [sic] (Dummy stood up slightly)--is this conform [sic]?  The dummy was in a forward-facing child seat. 

            Answer:  S5.1.3 and S5.1.3.1 of FMVSS No. 213 state:

S5.1.3  Occupant excursion. When tested in accordance with S6.1 and the requirements specified in this section, each child restraint system shall meet the applicable excursion requirements specified in S5.1.3.1-S5.1.3.3. 

S5.1.3.1 Child restraint systems other than rear-facing ones and car beds.  Each child restraint system, other than a rear-facing child restraint system or a car bed, shall retain the test dummys torso within the system. 

*  *  *  *  *

             Torso is defined (S4) in FMVSS No. 213 as: the portion of the body of a seated anthropomorphic test dummy, excluding the thighs, that lies between the top of the child restraint system seating surface and the top of the shoulders of the test dummy.  From the photograph you provided, we cannot determine the location of the dummys shoulders relative to the child restraint when the dummy stood up slightly. 

            4.  Kiddy asks:  Cracks at torso shield belt guide--is this conform [sic]?  This test involved a CRS tested with a 3-year-old child test dummy.

            Answer:  Our answer is similar to our answer to question 1.  S5.1.1(a) prohibits any complete separation of any load bearing structural element, which would include the torso shield.  It is difficult to see the photographs you provided, and we cannot determine if the cracks constitute a complete separation.  The cracks do not appear to be on a contactable surface since they are on the underside of the shield. 

            5.  Kiddy asks:  Belt guide connection to the head rest breaks/but belt guide remains at head rest because of screw contact to metal support inside--is this conform [sic]?  This was a test of the CRS in a booster mode with a 6-year-old child test dummy in a Type II belt. 

            Answer:  Is the belt guide a load bearing structural element?  We cannot tell from the photograph you sent.  Generally, webbing guides that only position the seat belt webbing for the users comfort and that do not have structural benefit for the performance of the CRS or vehicle belt performance are not considered a structural part of the seat.  As such, the prohibition of S5.1.1(a) would not apply.  If the belt guide is a load bearing structural element, S5.1.1(a) would prohibit the breaking you describe. 

            6.  Kiddy asks:  [B]elt guide has damaged the safety belt--is this conform [sic]?  The photograph shows a substantial rip in the shoulder belt webbing.  We assume the damage occurred in the dynamic test.

            Answer:  Manufacturers must ensure that their child restraints are free of safety-related defects.  The ripping of the seat belt by the belt guide raises a concern about a possible safety-related defect of the CRS.  If data indicated that the damaged seat belt exposed occupants to an unreasonable risk of injury, NHTSA might conduct a defect investigation which could lead to a safety recall. 

            7.  Kiddy asks:  Opening and cracking on belt guide hook located on the head rest--is this conform [sic]?  The photograph shows the buckle position clip broken off. 

            Answer:  Our answer is the same as our answer to question 5.  If the belt guide is a load bearing structural element, S5.1.1(a) would prohibit the breaking you describe. 

            8.  Kiddy asks:  Belt guide connection to the head rest breaks/but belt guide remains at head rest because of screw contact to metal support inside--is this conform [sic]?  Notations indicate that this test is with the HIII 5^th Female.

            Answer:  FMVSS No. 213 does not specify testing with the Hybrid III 5^th percentile adult female, so we are not sure of the context of your question.  If you are asking whether the belt guides breaking is permitted under FMVSS No. 213 in an FMVSS No. 213 test, see our answer to question 5. 

Procedural Regulations

            I would like to draw your attention to two procedural regulations of which manufacturers should be aware to import child restraints into the United States.  The first is 49 CFR Part 566, Manufacturer Identification.  This regulation requires a manufacturer of motor vehicle equipment subject to the FMVSSs to submit its name, address, and a brief description of the equipment it manufactures to this agency within 30 days of the date the equipment is first manufactured.

            The second regulation is 49 CFR Part 551, Procedural Rules.  Section 551.45 requires the manufacturer of foreign‑manufactured child restraints to designate a permanent resident of the United States as the manufacturer's agent for service of process in this country.  The regulation specifies the items needed for a valid designation.

            I hope this information is helpful.  For your information, I have enclosed a brief information sheet for new manufacturers.  If you have any further questions, please contact Ms. Deirdre Fujita at (202) 366-2992.

Sincerely yours,

                                                                        O. Kevin Vincent

                                                                        Chief Counsel

Enclosure

11/28/2011

Ms. Gloria M. Buley

President

Woodstock Safety Mirror Co., Inc.

40 Industrial Drive

Saugerties, NY  12477     

Dear Ms. Buley:

This responds to your letter of August 8, 2011 to this office and subsequent telephone conversations of September 21 and 22, 2011 with my staff, concerning a stop arm/mirror unit you manufacture.  Your letter and telephone conversations follow up on your previous correspondence in 2006 and 2007 to the National Highway Traffic Safety Administration (NHTSA), and also follows on an inquiry we received earlier this year from Congressman Maurice Hinchey on your behalf. 

Background

The previous correspondence with NHTSA concerned a stop arm/mirror unit you designed to mount on the right side of a school bus.  In our interpretation letters of July 10, 2006 and March 26, 2007 from this office, we explained that your device would be considered a stop arm and mirror system subject to both Federal Motor Vehicle Safety Standard (FMVSS)

No. 131, School bus pedestrian safety devices, and FMVSS No. 111, Rearview mirrors.  Our previous correspondence with you focused on whether your stop arm/mirror unit could be installed on new school buses with only one stop arm on the left side. 

We explained in the 2007 letter that new school buses equipped with your product must be certified as meeting all applicable FMVSSs, including FMVSS No. 131.  Your product would be considered a supplemental school bus stop arm.  Under FMVSS No. 131, a supplemental stop signal arm on the right side of a school bus is permissible under Federal law provided:  (1) two compliant stop signal arms are already present on the left side of the bus; and (2) the additional, supplemental stop signal arm does not take the vehicle out of compliance with any applicable safety standards (with FMVSS No. 111 being the most relevant).

Regarding compliance of your product with FMVSS No. 111, we explained in the 2006 letter that:

Based on our analysis of the materials you submitted, we believe that your system would provide supplemental mirrors.  Supplemental mirrors are permissible, provided that they do not interfere with the performance of the mirrors required under FMVSS No. 111.  Your letter states that your companys mirror system would neither make inoperative nor diminish the performance of any other mirrors or safety devices currently required on school buses.  [A]ssuming that the statement is correct, your supplemental mirror would not be prohibited by Standard No. 111.

Question

            In your telephone call, you asked about the possibility of your device not having features of a stop arm, i.e., you would reconfigure the device to be only a supplemental mirror system, meeting FMVSS No. 111, and not as a stop arm.  You are interested in this modification because you believe some States may be unwilling to specify a second stop arm on the left side of the school bus, which they would have to do before they could specify a stop arm on the right side.  You ask:  if your device were a supplemental mirror system and not a stop arm, could your device be installed on the right side of school buses that had only one stop arm on the left side.

Response

            Based on our understanding of the information you provided, our answer is yes.  If your device were not a stop arm, it could be installed on the right side of the bus as a supplemental mirror system.  This assumes that the device met FMVSS No. 111 and did not make inoperative or diminish the performance of any other mirrors or safety devices currently required on school buses.  Requirements for your product as only a supplemental mirror system were discussed in the July 10, 2006 letter, see in particular in the quotation provided above applicable to supplemental mirrors.

            You asked whether the back of the mirror system may be hexagonal[1] and painted red.  The answer is yes.  Nothing in FMVSS No. 111 specifies color requirements or shapes for the backs of school bus mirror systems.  Therefore, FMVSS No. 111 does not prohibit the back of the mirror on your supplemental mirror system from being hexagonal or painted red.

            I hope this information is helpful.  If you have any further questions, please contact

Ms. Deirdre Fujita of my staff at (202) 366-2992.                 

                                                                                    Sincerely yours,

                                                                                    O. Kevin Vincent

                                                                                    Chief Counsel

1/18/2012

Std. 111

Mr. Kevin Ro

National Manager, Technical &

Regulatory Affairs, Safety

Toyota Motor North America, Inc.

601 13^th St. NW, Suite 910 South

Washington, DC 20005

Dear Mr. Ro:

This letter responds to your request for interpretation of Federal Motor Vehicle Safety Standard (FMVSS) No. 135, Light Vehicle Brake Systems, on behalf of Toyota Motor Corporation (Toyota). You state that Toyota is currently developing an electric vehicle (EV) that falls within the applicability of FMVSS No. 135. You would like confirmation of your interpretation that the phrase accelerate as rapidly as possible found within the test procedure of the standard takes account of a thermal protection feature in an EV battery system. The issue raised by your letter is addressed below.

Among the performance requirements for light vehicle brake systems in FMVSS No. 135 is a hot performance test. Prior to conducting that test, there is a procedure, contained in S7.13 of FMVSS No. 135, for conducting heating snubs, which are designed to heat the brakes for the test. As set forth in the test procedure in S7.13.3, the vehicle is driven at an initial speed of 120 km/h (74.6 mph) or 80 percent of the vehicles maximum speed, whichever is slower. The brakes are then applied to slow the vehicle to one-half the initial speed at a constant deceleration rate of 3.0 m/s² (9.8 fps²). The vehicle is then accelerated back to the initial speed, and the procedure is repeated for 15 snubs. Immediately after the completion of this procedure, the hot performance test is conducted.

Your question relates to acceleration of the vehicle back to the initial speed. The pertinent provisions of S7.13.3 are set forth below:

S7.13.3 Test conditions and procedures.

(f) Time interval: Maintain an interval of 45 seconds between the start of brake applications (snubs).

(g) Accelerate as rapidly as possible to the initial test speed immediately after each snub.

(Emphasis added).

You note that, with EV battery systems, greater power discharge results in higher operating temperature. You also note that Toyotas EV battery system is thermally regulated; that is, when the internal temperature exceeds a pre-defined limit, the vehicles speed is limited to prevent thermal damage to the system.

You state that Toyotas EV is capable of achieving the initial test speed for all 15 high-speed snubs within the 45-second interval specified in S7.13.3(f). However, because of the thermal protection feature, the vehicle may not be able to attain the initial test speed for 15 consecutive snubs within 45 second intervals if the vehicle is accelerated at wide open throttle (WOT). You state that the only way to complete testing is to keep the throttle at less than WOT. You state that Toyota believes that it is within the language and intent of FMVSS No. 135 to interpret S7.13.3(g) to mean that the vehicle must be accelerated as rapidly as the motor will permit after each snub to the required test speed within the specified time interval and complete the testing.

In considering your question, we note S7.13.1 sets forth the purpose of the heating snubs, which is to heat up the brakes in preparation for the hot performance test which follows immediately. The test procedure does not specify the throttle position. However, it does specify the time interval between the start of snubs and states that the vehicle is accelerated as rapidly as possible to the initial test speed immediately after each snub.

In conducting the heating snubs, we would ordinarily accelerate a vehicle as rapidly as possible during each acceleration specified for this test. Although the manner in which the vehicle is accelerated as rapidly as possible is not specified in the regulatory text, in practice this is generally done with a full application of the accelerator pedal. For most vehicles, the rate of acceleration in the earlier of the 15 accelerations would not affect the ability of the vehicle to achieve the specified test speed in later accelerations. We understand your letter to indicate that when some electric vehicles are tested under this procedure, the rate of acceleration in the earlier accelerations may affect the ability of the vehicle to achieve the specified initial test speed in later accelerations, due to heat build-up and the thermal protection feature.

In this specific situation, we agree that the language as rapidly as possible in S7.13.3(g) should be interpreted in the context of the necessity of the vehicles being able to complete the test sequence at the specified initial speed and within the 45-second time intervals between snubs. This means that we would complete the S7.13 test sequence by accelerating the vehicle as rapidly as possible, consistent with the need to allow the test sequence to be completed, provided each acceleration could be completed within the 45-second time interval between snubs. In the case of the vehicle that you describe, the vehicle may not be accelerated at wide open throttle for each acceleration. In heating up the brakes in preparation for the hot performance test, the key factors in achieving proper heating are the test speed of the vehicle at the beginning of each snub and the time interval between snubs (along with the snubs themselves). This performance test is not intended to test a vehicles acceleration capability. If higher rates of acceleration for the earlier accelerations have the effect of preventing the vehicle from achieving the specified initial test speed in later accelerations within the 45-second time interval, the brakes would not be appropriately heated.

I hope this information is helpful. If you have any further questions, please feel free to contact David Jasinski of my office at (202) 366-2992.

Sincerely yours,

O. Kevin Vincent

Chief Counsel

Ref: Standard No. 135

Dated: 7/5/12

Mr. Ray Kesler

Kesler Research Enterprises, LTD.

17234 Pearlblossom Hwy, Ste 303

Llano, CA 93544

Dear Mr. Kesler:

This responds to two letters the agency has received from you dated September 7, 2011 and May 10, 2012, concerning your product: the Lane Change Safe Alert Indicator. In both of your letters, you describe your product in detail and various situations where you believe the product would be helpful to a driver conducting a lane change maneuver. As you describe in those letters, your Lane Change Safe Alert Indicator product utilizes modified OEM convex mirrors that have the alert indicators permanently inscribed on the mirror for both driver and passenger sides. Further, the mirror contains the warning Vehicles Larger Than Alert Indicator Are Unsafe to Lane Change [sic]. You state that your product is able to assist drivers in determining whether or not a following vehicle in the adjacent lane is at a sufficient distance such that it is safe to make a lane change maneuver.

It is not apparent from your letters whether you seek an interpretation of a Federal motor vehicle safety standard (FMVSS) (and how these standards apply to your product) or to petition for changes to an FMVSS (and what such changes would be). While you state in your letter (September 7, 2011) that it is time to convert this concept into a Federal, OEM, Industry or Supplement standard [sic], your letters were not properly filed as a petition for rulemaking pursuant to 49 C.F.R. Part 552.4. Thus, we will respond to your two letters as a request for interpretation.

We note that you have previously requested interpretations from the agency regarding FMVSS No. 111, Rearview Mirrors, and a similar product that you designed. In those instances, the agency responded to your requests for interpretation[1] by explaining the requirements of the FMVSSs that apply to that product, whether or not it could meet those requirements, and the responsibilities of a manufacturer of motor vehicle equipment. In those letters, we explained that the previous side view mirror product that you were inquiring about could not be installed on vehicles in order to fulfill the requirements of FMVSS No. 111 before the vehicles first sale. Further, we explained that they could not be installed as a replacement for mirrors installed in compliance with FMVSS No. 111 after the vehicles first sale. However, we stated that they are not prohibited by the requirements in FMVSS No. 111 from being installed as supplements to the required mirrors. As will be discussed below, the agencys position regarding your current side view mirror product is essentially the same as our position regarding your earlier side view mirror products given the similarities between the two products.

By way of background, the National Traffic and Motor Vehicle Safety Act (Motor Vehicle Safety Act) authorizes the National Highway Traffic Safety Administration (NHTSA) to issue FMVSSs that set performance requirements for new motor vehicles and items of motor vehicle equipment.[2] NHTSA does not provide approvals or endorsements of motor vehicles or motor vehicle equipment. Instead, manufacturers of motor vehicles and motor vehicle equipment are required to self-certify that their products conform to all applicable safety standards that are in effect on the date of manufacture. NHTSA selects a sampling of new vehicles and equipment each year to determine their compliance with applicable FMVSSs. If our testing or examination reveals an apparent noncompliance, we may require the manufacturer to remedy the noncompliance, and may initiate an enforcement proceeding, if necessary, to ensure that the manufacturer takes appropriate action.

(1)   Requirements of FMVSS No. 111 and Responsibilities of a Manufacturer of Motor Vehicle Equipment

FMVSS No. 111 requires passenger cars to have a driver side mirror of unit magnification.[3] While a passenger side exterior mirror (in passenger cars) is only required under the circumstances set forth in S5.3, the standard specifies that any vehicle that uses a convex mirror on the passenger side of the vehicle to meet the requirements of S5.3 must meet various requirements regarding average radius curvature.[4] Further, these mirrors are required to be labeled with the text Objects in Mirror Are Closer Than They Appear.[5]

In our previous letters to you, we explained that your earlier products would not meet the requirements for convex mirrors in FMVSS No. 111 because they do not have the required text stating that Objects in Mirror Are Closer Than They Appear and have a radius of curvature that exceeds the allowable range in FMVSS No. 111.[6] While you have not offered additional information regarding the curvature radius of the mirrors described in your latest letters, you do specify that they are convex OEM mirrors that have been modified to include the alert indicator permanently inscribed onto the mirror. As your current product utilizes convex mirrors, it would not meet the requirements for the driver side exterior mirror in FMVSS No. 111 (because those mirrors are required to be of unit magnification). Further (if we assume the OEM mirrors that your current product uses meet curvature radius requirements), your mirrors could not be installed as a passenger side exterior mirror for the purposes of meeting the requirements in S5.3 of FMVSS No. 111 because they do not have the required text Objects in Mirror Are Closer Than They Appear.

Please note that these requirements apply to new, completed vehicles and do not apply to mirrors installed as aftermarket equipment. However, the Motor Vehicle Safety Act prohibits any manufacturer, distributor, dealer, or motor vehicle repair business from knowingly making 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 safety standard.[7] The rearview mirrors in a vehicle are considered a device installed in compliance with an applicable safety standard. Thus, if the installation of an aftermarket mirror system resulted in a vehicle no longer complying with FMVSS No. 111, a manufacturer, distributor, dealer, or motor vehicle repair business performing the work will have violated the make inoperative prohibition of the Motor Vehicle Safety Act by making inoperative the mirrors required by FMVSS No. 111.

For the above reasons, the agencys position continues to be that your product is unable to meet the requirements set forth in FMVSS No. 111. Your product cannot be used by new vehicle manufacturers to meet the requirements of FMVSS No. 111. Further, your product cannot be used to replace the mirrors installed by a new vehicle manufacturer to meet the requirements of FMVSS No. 111. On the other hand, your product may be installed on motor vehicles as a supplement to the required mirrors under FMVSS No. 111 by a new vehicle manufacturer or as an aftermarket device.

In addition to the foregoing, please be aware that manufacturers of motor vehicle equipment (e.g., vehicle mirrors) are also subject to the recall and remedy requirements in the Motor Vehicle Safety Act.[8] If you were to sell your product as a supplemental mirror system and you or NHTSA determines that a safety defect exists, you must notify purchasers of your product and remedy the problem free of charge. Further, any manufacturer that fails to provide notification of (or remedy for) a defect may be subject to a civil penalty.

(2)   Petitioning for Rulemaking

The public can petition to alter or change an FMVSS.  However, this petition must be filed pursuant to the requirements in 49 C.F.R. Part 552.4.  If you wish to petition for rulemaking to amend an FMVSS, you should submit a petition for rulemaking pursuant to the requirements specified in 49 C.F.R. Part 552.4.   If you choose to file a petition for rulemaking pursuant to Part 552.4, you are encouraged to provide the necessary facts for the agency to consider the possibility of amending an FMVSS.  This would include such things as estimates of the crashes avoided, potential lives saved and/or injuries prevented.  Please note, including such information does not guarantee that the agency will be able to grant your petition. 

Finally, we note that you have previously filed a petition to amend FMVSS No. 111 in 1991.[9] In that petition, you requested that agency amend FMVSS No. 111 to require various characteristics on the vehicle side view mirrors that appear to be similar to the product that you described in your two latest letters. As NHTSA considered your petition in 1991 and denied it, you should demonstrate in any subsequent petition how the new petition is different from the petition that you filed in 1991 and address the agencys reasoning for denying the 1991 petition.

(3)   You May Not State in Your Advertising Material that Your Product is Registered with the NHTSA Chief Counsel.

We note that, along with your September 7, 2011 letter, you included promotional material that appears to be used for the purpose of advertising your product. This material states that your product is Registered with the N.H.T.S.A. Chief Council [sic]. This representation is incorrect. NHTSA has not registered this or any other rearview mirror design. NHTSA does not approve any motor vehicles or items of motor vehicle equipment, nor does the agency endorse any commercial products. Instead, the Motor Vehicle Safety Act establishes a self-certification process under which each manufacturer is responsible for certifying that its products meet all applicable safety standards. Therefore, this language must be immediately removed from the advertisement and you must refrain from making such representations in any other format.

Please respond in writing describing the specific steps that you will take to discontinue these misrepresentations. I appreciate your immediate attention to this matter.

If you have any further questions, please contact Jesse Chang (202-366-2992) of this office.

Sincerely,

O. Kevin Vincent,

Chief Counsel

Ref: Standard No. 111

Dated: 9/25/12