ID: 001307.Bruno.cmc

Mr. Dick Keller
Bruno Independent Living Aids
1780 Executive Drive
PO Box 84
Oconomowoc, WI 53066

Dear Mr. Keller:

This responds to your letter in which you ask about the application of the "make inoperative" provision to the removal of advanced air bag sensors during the installation of driver seats that accommodate individuals with disabilities. As explained below, the National Highway Traffic Safety Administration (NHTSA) will exercise its enforcement discretion and refrain from taking action under the circumstances described in your letter.

In your letter you discussed the installation of a product your company calls the Turning Automotive Seat (TAS) to facilitate vehicle access by individuals with disabilities. You described the TAS as being offered in two models, but you explained that both models are essentially "a swivel seat base mechanism rotating approximately 90 degrees with articulation to clear the B-pillar during entry and egress."You stated that the TAS system is used with the originally equipped (OEM) seat belts and bolts into the OEM seat mounting points. Your letter explained that with the newer air bag systems relying on seat sensors to modulate air bag deployment, replacing the OEM seat with the TAS requires removal of these sensors. You asked if such modifications were covered by the make inoperative exemption in 49 CFR 595.7(c)(14).

By way of background, NHTSA has authority to issue Federal motor vehicle safety standards (FMVSSs) applicable to new motor vehicles and items of motor vehicle equipment. Manufacturers are required to certify that their products conform to all applicable FMVSSs before the products can be offered for sale. 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. However, NHTSA has recognized that it is appropriate to permit some modifications that could cause a vehicle to no longer comply in order to accommodate people with disabilities. 49 CFR Part 595 Subpart C, Vehicle Modifications to Accommodate People with Disabilities, lists modifications of certain portions of specific FMVSSs that are exempt from the "make inoperative" provision in order to accommodate people with disabilities.

On May 12, 2000, the agency published a final rule amending FMVSS No. 208 by establishing requirements to reduce the risk of serious air bag-induced injuries, especially to small women and young children, and to improve safety for all occupants by means that include advanced air bag technology. (65 FR 30680; Advanced Air Bag Rule.) Motor vehicles certified as complying with the provisions of the Advanced Air Bag Rule will be required to minimize air bag risks by automatically turning off the air bag in the presence of an occupant who is a young child or deploy the air bag in a manner less likely to cause serious or fatal injury to an "out of position occupant."Among the technologies used to comply with these requirements are a variety of seat position, occupant weight, and pattern sensors incorporated into the seat structure. The advanced air bag technology requirements are being phased in beginning September 1, 2003, with full compliance required starting September 1, 2006. ^[1]

While 49 CFR 595.7 includes some specific requirements of FMVSS No. 208 among the requirements subject to the "make inoperative" exemption, the provisions established under the Advanced Air Bag Rule are not included. As you are aware, the agency has granted a petition for rulemaking to include the provisions of the Advanced Air Bag Rule in the exemption list under Part 595. If the agency issues a final rule incorporating the advanced air bag requirements into Part 595, Subpart C, then a vehicle modifier that meets the conditions set forth in that subpart would be permitted to make such modifications as you described.

Until this rulemaking is completed, the agency will use its enforcement discretion and refrain from taking action in the limited instance of a vehicle not complying with the advanced air bag requirements because of the installation of a replacement seat to accommodate persons with disabilities. This is conditioned on the vehicle modifier complying with the modifier and modification requirements of Part 595, including the label and documentation requirements of 595.7(b). If you have any additional questions, please contact Mr. Chris Calamita of my staff at (202) 366-2992.

Sincerely,

Jacqueline Glassman
Chief Counsel

ref:208#595
d.4/8/04





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^[1] A majority of vehicle manufacturers are required to certify that a percentage of their fleet complies with these requirements according to the following phase-in schedule, with credits for early compliance: September 1, 2003 to August 31, 2004--20 percent; September 1, 2004 to August 31, 2005--65 percent; September 1, 2005 to August 31, 2006--100 percent.

ID: 006814drn

Jim Soucie, Director of National Sales
I.M.S., The Kiosk Company
1538 So. 139^th St.
Omaha, NE 68144

Dear Mr. Soucie:

This responds to your September 16, 2003, FAX inquiry asking if NHTSAs laws apply to companies that place commercial advertisements on school bus exteriors.

In your FAX, you write that your company "would like to place ads on the exterior sides of the bus, away from anything that moves; doors, mirrors or windows." In a telephone conversation with Dorothy Nakama of my staff, you stated that you want to place advertisements on only the exterior right and left sides of a school bus, and not on the vehicles front or rear. No advertisements will be placed in the school bus interior. The advertisements are to be made of vinyl, will be of as-yet unspecified dimensions, but will not completely wrap around the school bus. No school district or other school bus owner will place the advertisements themselves; instead, your company will arrange for a local contractor to apply the advertisements directly onto the school bus exterior, with no need for metal frames or brackets. The contractor will also remove the advertisements.

By way of background, the National Highway Traffic Safety Administration (NHTSA) is authorized to issue and enforce Federal motor vehicle safety standards (FMVSSs) that set performance requirements for new motor vehicles and new items of motor vehicle equipment. (49 U.S.C. 30101 et seq.) Manufacturers are required to certify that their products conform to our safety standards before they can be offered for sale. After the first sale of the vehicle, manufacturers, distributors, dealers, and repair businesses are prohibited from "knowingly making inoperative" any device or element of design installed on or in a motor vehicle in compliance with an applicable FMVSS. In general, the "make inoperative" prohibition (49 U.S.C. Section 30122) requires businesses that modify motor vehicles to ensure that they do not remove, disconnect, or degrade the performance of safety equipment installed in compliance with applicable standards. Violations of this prohibition are punishable by civil penalties up to $5,000 for each violation. The maximum penalty for a related series of violations is $15,000,000.

The issue arising from your situation is whether placement of the advertisements on a school bus would "make inoperative" the compliance of the school bus with labeling requirements for the bus exterior. [1] FMVSS No. 217, Bus emergency exits and window retention and release, specifies labeling requirements for school bus emergency exits, which may be doors, windows, or roof exits. Among other things, the standard requires that:

• school bus emergency exits have the designation "Emergency Door" or "Emergency Exit" as appropriate, in letters at least 5 centimeters high, on both the inside and outside surfaces of the bus (S5.5.3(a)); and that
• required school bus emergency exits "shall be outlined around its outside perimeter with a retroreflective tape with a minimum width of 2.5 centimeters and either red, white or yellow in color " (S5.5.3(c)).

A person placing the advertisements on the bus may be subject to the make inoperative provision. Since the identification of the exits and doors of the school bus and the retroreflective tape are specified for safety reasons (i.e., to facilitate identification of the emergency exits and doors, especially in the dark), the advertisements must not obscure or cover the identifications of the exits and doors or the retroreflective tape.

Other identification requirements for school buses, including color, are established by each State or local jurisdiction. In NHTSAs Highway Safety Program Guideline No. 17, "Pupil Transportation Safety," it is recommended that the word "school bus" be placed on the front and rear of the school bus between the 4-way/8-way flashing lights in letters as high as possible, and that no other lettering be on the front or rear of the vehicle. If any safety problems associated with schoolbus identification were to develop, NHTSA would consider regulatory requirements in the future.

If you have any further questions about NHTSAs laws or programs, please feel free to contact Dorothy Nakama at this address or at (202) 366-2992.

Sincerely,
Jacqueline Glassman

Chief Counsel
ref:571.3#217





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[1] Our statute at 49 U.S.C. 30122 states: "A manufacturer, distributor, dealer, or motor vehicle repair business may not knowingly make inoperative any part of a device or element of design installed on or in a motor vehicle or motor vehicle equipment in compliance with an applicable motor vehicle safety standard prescribed under this chapter [49 USCS 30101 et seq.] unless the manufacturer, distributor, dealer, or 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."

ID: 04-004579drn

Stephen E. Selander, Esq.
Senior Counsel
Warner Norcross & Judd LLP
2000 Town Center, Suite 2700
Southfield, MI 48075-1318

Dear Mr. Selander:

This responds to your request for an interpretation whether your clients (Morbarks) products, portable brush chippers, are "motor vehicles" for purposes of the National Traffic and Motor Vehicle Safety Act, including the TREAD Act. We will identify the relevant factors that should be considered in making such determinations.

Title 49 U.S.C. Chapter 301 authorizes the National Highway Traffic Safety Administration (NHTSA) to prescribe Federal motor vehicle safety standards (FMVSSs) applicable to new motor vehicles and new items of motor vehicle equipment. Section 30102(a)(6) defines "motor vehicle" as:

"[A] vehicle driven or drawn by mechanical power and manufactured primarily for use on the public streets, roads, and highways, but does not include a vehicle operated only on a rail line."

We have issued a number of interpretations of this language. We have stated that vehicles equipped with tracks, agricultural equipment, and other vehicles incapable of highway travel are not motor vehicles. We have also determined that certain vehicles designed and sold solely for off-road use (e.g., airport runway vehicles and underground mining vehicles) are not motor vehicles, even if they may be operationally capable of highway travel. Finally, we have concluded that items of mobile construction equipment that use the highways only to move between job sites and that typically spend extended periods of time at a single site are not motor vehicles. However, we do consider vehicles that use the public roads on a necessary and recurring basis to be motor vehicles.

You provided information about several models of brush chippers. You write that:"Eight of the models have axles, tires and wheels, and can be easily moved around a site or from site-to-site by towing."

You stated that Morbark believes that its portable brush chippers are not covered by the Vehicle Safety Act or the TREAD Act. You stated that Morbark brush chippers are designed primarily for use off-highway in helping to clear sites of trees and brush by chipping the brush, tree limbs, and small tree trunks.

You also stated that Morbark believes that its portable brush chippers are not trailers as defined in 49 CFR 571.3. That regulation defines trailer as "a motor vehicle with or without motive power, designed for carrying persons or property and for being drawn by another motor vehicle."

We have reviewed the videotape you enclosed with your letter. We note that in some instances, the Morbark brush chipper and vehicle towing the chipper were depicted as parked on the side of the road in what appears to be a residential area. We also understand from the information you provided that some of these products are used by tree service and landscape companies. We have also reviewed information provided at Morbarks web site: www.morbark.com.

Whether Morbarks portable brush chippers are considered motor vehicles under the National Traffic and Motor Vehicle Safety Act depends on their use, i.e., whether they typically spend extended periods of time at a single site or, by contrast, use the public roads on a necessary and recurring basis. By way of example, in a letter to DuraTech dated June 4, 1997, we took the position that mobile tub grinders are not motor vehicles because they stay on job sites for extended periods of time (usually for months and very rarely for less than a week). Similarly, we have concluded that mobile waterjet cutting and cleaning equipment was not a motor vehicle, based on the fact that it appeared to stay on job sites for extended periods of time ranging from a week to over a year.

We do not have information concerning the specific usage patterns of each of Morbarks brush chippers to determine whether they are motor vehicles. Moreover, while we seek to be helpful in providing opinions about our statutes, we do not have the resources to provide a detailed review of the products of each company. However, if the brush chippers use the public roads on a necessary and recurring basis, they would be motor vehicles. We would think that would likely be the case for at least some of Morbarks portable brush chippers, since tree service and landscape companies would tow the portable brush chippers by trucks to jobs, park them along the curb during work, and then tow them to the next job or, at the end of the day, return them to the companys facilities. Tree service company crews commonly complete one to two jobs per day. We also note that, in a letter to Lindig Manufacturing Corporation dated January 5, 1984, we took the position that brush chipper trailers are motor vehicles.

As to your question concerning the definition of trailer, we would consider the brush chipper itself to be the property being transported.

I have enclosed a fact sheet entitled "Information for New Manufacturers of Motor Vehicles and Motor Vehicle Equipment."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,

Jacqueline Glassman
Chief Counsel

Enclosure
ref:VSA102(4)
d.8/27/04

ID: 06-007052rls

ID: 0697

Mr. Brad Rourke
Director, Government and Community Affairs
The Electric Bicycle Company
27426 Pacific Coast Highway
Malibu, CA 90265

Dear Mr. Rourke:

Thank you for your letter of February 4, 1995. I am pleased to answer your questions about the applicability of the regulations of the National Highway Traffic Safety Administration (NHTSA) to your electric-assisted bicycle.

We have reviewed Adam Englund's memorandum of January 26, 1995, which you enclosed. In general, it is a complete and accurate statement of the applicability of our regulations to motor driven cycles. We have the following comments which I hope you will find helpful.

Certification label. The appropriate regulation is 49 CFR Part 567. The statutory authority that it implements, 15 U.S.C. 1403, was recodified last summer as 49 U.S.C. 30115 without any substantive change.

Vehicle Identification Number. "15 USC 565" should be 49 CFR Part 565.

Lighting. While the analysis is correct, we note that Tables III (required equipment) and IV (location of required equipment) give a reader an immediate ready reference to motorcycle lighting equipment.

Horn. This section can be included in the one following, on controls and displays. The reference to 49 CFR "571.125 Warning Devices" is incorrect. The warning device covered by that standard is a retroreflective triangle, not a horn.

We note also that if a motorcycle is equipped with a windshield, it must comply with Standard No. 205 Glazing Materials, and that motorcycles with hydraulic brake systems are required to be furnished with brake fluid meeting Standard No 116 Brake Fluids.

You also have asked three specific questions. The first relates to the requirement of Standard No. 123 Motorcycle Controls and Displays that the rear brake be operable by the left hand (or right foot) control and the front brake operable by the right hand control. This is the opposite of bicycle brake systems. You believe that most riders will expect the electric bicycle to brake like a conventional one and that accidents may occur as a result of confusion. For this reason, you would like to place the rear brake control on the right handlebar, and the front brake control on the left.

The purpose of Standard No. 123 is "to minimize accidents caused by operator error . . . by standardizing certain motorcycle controls and displays" so that a motorcycle operator can instinctively respond to threatening situations no matter what the machine. Your question raises the possibility that the purpose of the standard might be defeated with respect to the electric bicycle by strict application of Standard No. 123 when it is operated by those who are familiar with bicycle braking systems (though this would not be the case if the operator is switching from a motorcycle to an electric bicycle). We do have authority to exempt manufacturers for up to two years from a requirement if it would promote the development or field evaluation of a low-emission vehicle, or if compliance would prevent the manufacturer from selling a vehicle whose overall level of safety equals or exceeds that of a complying vehicle. The exemption procedures are contained in 49 CFR Part 555. Taylor Vinson of this Office will be glad to answer any questions you have (202-366-5263). You also may petition for rulemaking, as provided in 49 CFR Part 552, for an appropriate amendment to Standard No. 123. However, in the absence of an exemption or a change in Standard No. 123, the braking system of the electric bicycle must operate as provided in this standard.

Your second question relates to headlighting requirements for motor driven cycles. You believe that the headlamp specified by Standard No. 108 will reduce the ability of the electric bicycle to perform at night, and, for this reason, would like to use "a high- power bicycle-type headlamp." SAE J584, incorporated by reference in Standard No. 108, permits a motor driven cycle to be equipped with a single beam headlamp. If you wish to use a headlamp that does not comply with Standard No. 108's requirements for motor driven cycle headlamps, you must petition for an exemption, and/or for rulemaking, as discussed in the prior paragraph. In addition to allowance of a single beam headlamp, paragraphs S5.1.1.21 and S5.1.1.22 of Standard No. 108 recognize the limitations of low- powered motorcycles and permit motor driven cycles whose top speed is 30 mph or less to omit turn signal lamps, and to be equipped with a smaller less powerful stop lamp.

Your final question relates to Standard No. 123 and your wish to use a spring-loaded thumb-lever throttle. This is permissible, and no requirements are prescribed for it by Standard No. 123. Your interpretation of Standard No. 123 is correct; a twist- grip throttle is not required, but if it is provided, it must operate in the manner set forth in the standard.

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

Sincerely,

Philip R. Recht Chief Counsel ref:108#123 d:3/30/95

ID: 10419

Mr. Roger W. Cole
Vice President, Sales
Twin Tire U.S.A., Inc.
335 Phoenixville Pike
Malvern, PA 19355

Dear Mr. Cole:

This responds to your letter of October 18, 1994, received by facsimile transmission, addressed to Walter Myers of my staff. You asked whether passenger car tires that have the DOT symbol and the Uniform Tire Quality Grading Standards (UTQGS) ratings molded on the sidewalls may legally be sold in the United States. The short answer is yes, provided that the tires in fact comply with all applicable Federal motor vehicle safety standards (FMVSS).

By way of background information, 49 U.S.C. '30101, et seq. (hereinafter referred to as Safety Act), directs the National Highway Traffic Safety Administration (NHTSA) to issue FMVSSs applicable to new motor vehicles and new items of motor vehicle equipment prior to the first retail sale of such vehicles or equipment. Tires are considered motor vehicle equipment. The Safety Act provides at 49 U.S.C. '30112(a) that no person may manufacture, sell, offer for sale, or import into the United States any new motor vehicle or item of motor vehicle equipment unless that vehicle or equipment complies with applicable FMVSSs and is covered by a certification to that effect issued in accordance with 49 U.S.C. '30115. The latter section provides in pertinent part that "Certification of equipment may be shown by a label or tag on the equipment . . . ." Thus, any new tire sold by Twin Tire must comply with all applicable FMVSS's, and be certified as doing so.

FMVSS No. 109, New pneumatic tires, a copy of which is enclosed for your information, specifies the minimum standards applicable to new passenger car tires. This standard specifies labeling and performance requirements applicable to passenger car tires, which include tubeless tire resistance to bead unseating, tire strength, tire endurance, and high speed performance. If the tires in question fail to comply with

Standard No. 109, the manufacturer (or importer of noncomplying tires) must notify the purchasers of the product and remedy the noncompliance without charge to the purchaser(s). Failure to comply with any FMVSS can also result in civil penalties of up to $1,000 per violation, up to a maximum of $800,000 for a series of related violations.

With regard to the situation you present, 49 U.S.C. 30112(b) provides two exceptions to the prohibition of 30112(a) against selling noncomplying equipment, such as tires. The first exception is that the prohibition does not apply to a person who had no reason to know, despite exercising reasonable care, that an item of equipment does not comply with applicable FMVSS's. The second exception is for a person who holds a certificate issued by the equipment manufacturer stating that the equipment complies with applicable FMVSS's, provided that the person does not know about the noncompliance. However, if Twin Tire were to sell the tires in question and those tires failed to comply with applicable FMVSS's, it is unlikely that Twin Tire could successfully argue that it qualifies for these exceptions, as a defense to an enforcement action for selling the noncomplying equipment.

You state in your letter that the tire manufacturer "breached their contract to manufacture these tires under the premise of US regulations." If the breach concerned the ability of the tires to conform to the requirements of the applicable FMVSS's, Twin Tire would be on notice that there is a reasonable possibility that the tires in question, while labeled with a DOT mark certifying compliance, do not in fact comply. In a situation where a seller has reason to believe the equipment it is selling might not comply with applicable FMVSS's, the seller must ascertain if the certification is bona fide before selling the item.

The following discussion relates to the "DOT" and other markings that you describe on the tires. Paragraph S4.3.1 of FMVSS No. 109 provides that:

Each tire shall be labeled with the symbol DOT in the manner specified in Part 574 of this chapter, which shall constitute a certification that the tire conforms to applicable Federal motor vehicle safety standards (emphasis added).

Similarly, the UTQGS, also applicable only to passenger car tires, found at 49 CFR 575.104 (copy enclosed), provides at 49 CFR 575.104(d)(1)(i)(A):

Except for a tire of a new tire line . . . , each tire shall be graded with the words, letters, symbols, and figures specified in paragraph (d)(2) of this section, permanently molded into or onto the tire sidewall . . . .

Finally, 49 CFR 574.5 requires each tire sold in the United States have a tire identification number (TIN) molded into or onto the tire sidewall by the manufacturer to facilitate recall in the event of a noncompliance or defect.

To summarize, the answer to your question is the tires in question can be sold only if they comply with all applicable FMVSSs (including Standard No. 109's labeling and performance requirements) and are so labeled in the prescribed locations with the DOT symbol, the UTQGS grades, and the TIN.

I hope this information is helpful to you. Should you have any additional questions or need further information, please feel free to contact Mr. Myers at this address or at (202) 366-2992.

Sincerely,

Philip R. Recht Chief Counsel

ref:109#575.105 d: 12/7/94

ID: 10491

Mr. Howard J. Levy
Used Tire International
837 S.E. 8th Avenue, Suite 202
Deerfield Beach, FL 33441

Dear Mr. Levy:

This responds to your letter to Dr. Ricardo Martinez, Administrator of the National Highway Traffic Safety Administration (NHTSA), referring to a bill before the Puerto Rico Senate. The bill would require all used tires imported into Puerto Rico to have a minimum of 5/32 inch tread depth and would impose a tax of $10 per tire.

You stated that the proposed requirement is 3/32 inch more than is "required by U.S. law," and that if the proposal became law it "would mean the end of the Used Tire industry on the island." You asked, "Does the NHTSA have jurisdiction over these laws in Puerto Rico or does the Puerto Rican Senate control the regulations over highway safety," and requested this agency's help in this matter.

I am pleased to have this opportunity to explain the laws and regulations that we administer. As discussed below, however, those laws and regulations will not be of help to you with respect to your concerns about the proposed Puerto Rico law.

By way of background information, NHTSA is authorized by Federal law (Chapter 301 of Title 49, U.S. Code (hereinafter referred to as the Safety Act)) to issue Federal motor vehicle safety standards for new motor vehicles and new items of motor vehicle equipment. The Safety Act prohibits any person from manufacturing, selling or importing any new motor vehicle or item of motor vehicle equipment unless the vehicle or equipment item is in conformity with all applicable safety standards. It also prohibits commercial businesses from rendering inoperative the compliance of a vehicle or item of equipment with a safety standard.

NHTSA's safety standards do not, however, apply to used vehicles or equipment. (I note that if a used tire is imported as motor vehicle equipment, the tire must have complied with the safety standards at the time of its manufacture.) Instead, the individual states have the authority to regulate used vehicles and equipment. Also, the Office of Motor Carriers within the Federal Highway Administration has the authority to regulate commercial vehicles and equipment operated in interstate commerce. (Your statement that the proposed Puerto Rico tread depth requirement is 3/32 inch more than is "required by U.S. law" appears to be referring to a requirement specified by the Office of Motor Carriers, Federal Highway Administration, for commercial vehicles. See 49 CFR '393.75(c)).

I will now turn to your question concerning whether NHTSA has jurisdiction over the laws being considered by the Puerto Rican Senate. The Safety Act includes one provision which addresses Federal preemption of state laws. That provision (49 U.S.C. '30103(b)) specifies that when a Federal motor vehicle safety standard is in effect, a state (including Puerto Rico) may maintain a standard applicable to the same aspect of performance of a motor vehicle or motor vehicle equipment only if the standard is identical to the Federal standard. (States may, however, specify higher standards for vehicles or equipment obtained for their own use.) Therefore, if a state specified a particular requirement for new tires that was different from one specified for the same aspect of performance as a Federal motor vehicle safety standard, the state law would be preempted. Moreover, a state law could be impliedly preempted if it frustrated the purposes of the Safety Act.

While we have not reviewed the specific text of the Puerto Rico bill, we do not believe the Safety Act is relevant to the particular concerns you raise in your letter. In order for a state law to be preempted under 49 U.S.C. '30103(b), it would have to apply to new vehicles or equipment. However, you are concerned about state requirements for used tires, not new tires. A state law which applied to used vehicles or equipment could be impliedly preempted if it had the same practical effect as a state law for new vehicles/equipment that would be preempted under 49 U.S.C. '30103(b), i.e., the law in question had the practical effect of requiring vehicles/equipment to be designed in a certain manner. However, neither a general tax on imported used tires nor a tread depth requirement that applied only to imported used tires would have any practical effect on the design of new tires.

Based on consideration of the laws and regulations that we administer, we have therefore concluded that the proposed bill that you describe would not raise any preemption issues relevant to the importation of used tires. Since this opinion is limited to consideration of the laws and regulations that we administer, you may wish to consult a private attorney concerning whether the proposed Puerto Rico bill raises other legal issues that are relevant to your concerns.

I hope this information is helpful to you. Should you have any further questions or need additional information, please feel free to contact Walter Myers of my staff at this address or at (202) 366-2992.

Sincerely,

Philip R. Recht Chief Counsel

ref:109#119 d:1/17/95

ID: 11155b

Hugh J. Bode, Esq.
Reminger & Reminger
The 113 St. Clair Building
Cleveland, OH 44114

Dear Mr. Bode:

This responds to your letter concerning whether 49 U.S.C. ''30101 et seq. (formerly the National Traffic and Motor Vehicle Safety Act) requires a motor vehicle manufacturer to ensure that its vehicle continues to comply with applicable Federal motor vehicle safety standards (FMVSSs) after the first retail purchase of the vehicle.

You specifically ask about FMVSS No. 124, "Accelerator Control Systems," and its application to a 1988 Dodge Ram 50 pickup truck. It appears from the questions you ask that corrosion developed inside the carburetor of the pickup truck at some point during the life of the vehicle, such that the carburetor would not return to idle in accordance with the requirements of Standard No. 124.

You asked us to "confirm the accuracy" of a number of statements. Your first statement, concerning the application of the FMVSSs generally, is as follows:

As we understand it, former '108(a)(1)(A) of the National Traffic and Motor Vehicle Safety Act, 49 U.S.C. '30112(a), prohibits any person from manufacturing, selling or introducing into commerce any new motor vehicle unless the vehicle is in conformity with all applicable FMVSS. However, the Safety Act further provides that the requirement that a vehicle comply with all applicable FMVSS does not apply after the first purchase for purposes other than resale, i.e., the first retail sale of the vehicle. Safety Act former '108(b)(1), 49 U.S.C. '30112(b)(1). After the first retail sale, the only provision in the Safety Act that affects a vehicle's continuing compliance with an applicable FMVSS is set forth in former '108(a)(2)(A), 49 U.S.C. '30122(b), which prohibits certain persons from knowingly rendering inoperative a device installed in a motor vehicle in compliance with an applicable FMVSS.

Your general understanding is correct. However, a manufacturer has responsibilities in addition to those in '30112, that may bear upon on "continuing compliance" of its vehicle. Under ''30118-30122 of our statute, each motor vehicle manufacturer must ensure that its vehicles are free of safety-related defects. If NHTSA or the manufacturer of a vehicle determines that the vehicle contains a safety-related defect, the manufacturer must notify purchasers of the defective vehicle and remedy the problem free of charge.

This is not to say that the development of the corrosion in the carburetor necessarily constitutes a safety-related defect. Rather, we acknowledge the possibility of such a finding in certain circumstances, such as where the corrosion developed unreasonably quickly in the vehicle and the problem was such that it could lead to crashes involving injuries or fatalities.

State law could also be relevant to this issue. For example, as part of its vehicle inspection requirements, a State could require that the accelerator control systems on vehicles "continue to comply" with the requirements of Standard No. 124.

With the above discussion in mind, I will now address your other four questions on Standard No. 124.

Question 1. We ask that NHTSA confirm that FMVSS 124 is a standard that a given vehicle must comply with only at the time of the first retail sale of the vehicle.

As explained in our answer above, your understanding is correct with regard to our requirements (49 U.S.C. '30112). There may be State requirements that apply.

Question 2. We ask NHTSA to confirm that if a carburetor installed in a 1988 Dodge Ram 50 pickup truck met all the requirements of FMVSS 124 at the time of the truck's first retail sale, but, after the sale, due to in- service conditions, corrosion developed inside the carburetor so the carburetor would not return to idle in accordance with the requirements of S5.1, S5.2, and S5.3 of FMVSS 124, that circumstance would not render the vehicle in violation of FMVSS 124.

Your understanding is essentially correct. As permitted by Federal law, Chrysler sold the truck based upon its own certification of compliance with FMVSS No. 124. That corrosion developed in the system may or may not be relevant with respect to the existence of a safety-related defect.

Question 3. We ask NHTSA to confirm that all of the performance standards imposed by FMVSS 124 are contained in S5.1, S5.2 and S5.3 of FMVSS 124 and that S2 headed PURPOSE does not impose any separate regulatory obligation beyond those contained in S5.

While your understanding is essentially correct, note that Standard No. 124 and other motor vehicle safety standards are minimum performance standards.

Question 4. We ask you to confirm that the performance standard set forth in FMVSS 124 does not contain any requirement relating to durability or corrosion resistance.

Standard No. 124 does not specify a test for corrosion resistance. It is unclear what you mean by "durability." The requirements of the standard must be met when the engine "is running under any load condition, and at any ambient temperature between -40N F. and +125N F. ...." (S5) In addition to the performance regulated by Standard No. 124, each manufacturer must ensure that its motor vehicle does not have a safety-related defect.

If you have any questions about the information provided above, please contact Dorothy Nakama of my staff at this address or at (202) 366-2992.

Sincerely,

John Womack Acting Chief Counsel

ref:VSA#124 d:10/26/95

ID: nht94-2.57

TYPE: Interpretation-NHTSA

DATE: April 25, 1994

FROM: John Womack -- Acting Chief Counsel, NHTSA

TO: Christopher S. Spencer -- Engineering

TITLE: None

ATTACHMT: Attached to letter dated 9/8/93 from Christopher S. Spencer to R. C. Carter (OCC-9128)

TEXT:

This responds to your letter about the brake reservoir requirements of Federal Motor Vehicle Safety Standard No. 121, Air Brake Systems (49 CFR S571.121). I apologize for the delay in our response. You stated that you are developing a new reservoir des ign to improve reservoir volume without increasing the need for space. You asked how to test your reservoirs since you believe that "(t)he safety standard does not clarify the test criteria specifically how the reservoir is to be sealed."

By way of background information, the National Highway Traffic Safety Administration does not provide approvals of motor vehicles or motor vehicle equipment. Under the National Traffic and Motor Vehicle Safety Act, it is the responsibility of the manufa cturer to ensure that its vehicles and equipment meet applicable requirements. The following represents our opinion based on the facts provided in your letter.

Standard No. 121 establishes performance and equipment requirements for braking systems on vehicles equipped with air brakes. The Standard's reservoir requirements for trucks and buses are set forth in section S5.1.2. That section requires these vehicle s to be equipped with one or more service reservoir systems that meet specified performance requirements. Section S5.1.2.2 specifies the following:

Each reservoir shall be capable of withstanding an internal hydrostatic pressure of five times the compressor cutout pressure or 500 psi, whichever is greater, for 10 minutes.

The purpose of this requirement is to ensure that an air brake system reservoir has a minimum level of structural integrity. NHTSA has long interpreted the term "withstand" to require that there be no rupture or permanent circumferential deformation of the reservoir exceeding one percent. At one point, the agency issued an interpretation concluding that the term "withstand" meant that a reservoir can deform only slightly and must contain the applied pressure with only a limited pressure drop at any ti me during the test. However, NHTSA later withdrew that interpretation because it inadvertently increased the severity of the requirement. See 42 FR 64630, December 27, 1977, and 43 FR 9149, March 6, 1978.

You asked about this requirement in connection with a reservoir design that includes a bushing on the inside of an endcap. A weld is placed around the bushing.

You describe two different procedures you have used to seal the reservoir. In what you describe as "Test Criteria 1," a socket head plug is put into

the bushing with 3 full wraps of tape. With this first method, you state that as the pressure is applied to the reservoir, the endcap starts to expand out. The bushing stretches with the endcap, and as the bushing stretches the threads are pulled away from the plug. The plug must therefore be retightened several times before the required pressure is reached. In your "Test Criteria 2," you state that a rubber grommet or washer is placed on the inside of the bushing and forced to expand to seal the bu shings from the inside. You stated that this method checks the weld but removes the threads from the test. With the second method, you state that there was no failure at over five times the working pressure.

While Standard No. 121 does not specify a particular test procedure for this requirement, the language of S5.1.2.2 makes it clear that a reservoir must "withstand" for 10 minutes a condition where the reservoir is pressurized at the specified level. The refore, in conducting a compliance test, NHTSA would pressurize a reservoir to the specified level. This would necessitate sealing the reservoir.

In considering how a particular reservoir would be sealed, it is important to bear in mind that the purpose of the test is to evaluate the reservoir's structural integrity and ability to withstand pressurization. I can offer you the following comments o n the two alternative test methods you described. The first method (Test Criteria 1) would appear to evaluate a reservoir's ability to withstand pressurization. The threaded plug would appear to reasonably approximate how the reservoir would be sealed i n an actual use situation. I note that the mere fact that the plug needs to be tightened during the test to achieve the specified level of pressure would not indicate a failure but would simply reflect minor air leakage around the plug.

The second method (Test Criteria 2) would not fully evaluate a reservoir's ability to withstand pressurization, since it would, as you recognized, remove the threads from the test, thereby creating an artificial seal. It is our opinion that a reservoir would not be capable of "withstanding" the specified hydrostatic internal pressure if the threads failed under such pressurization. This would represent a structural failure equivalent to a rupture.

I hope this information is helpful. If you have any questions about NHTSA's safety standards, please feel free to contact Marvin Shaw at this address or by telephone at (202) 366-2992.

ID: nht94-4.98

TYPE: INTERPRETATION-NHTSA

DATE: December 7, 1994

FROM: Philip R. Recht -- Chief Counsel, NHTSA

TO: Roger W. Cole -- Vice President, Sales, Twin Tire U.S.A., Inc.

TITLE: None

ATTACHMT: ATTACHED TO LETTER DATED 10/18/94 FROM ROGER W. COLE TO WALTER MYERS (OCC 10419)

TEXT: This responds to your letter of October 18, 1994, received by facsimile transmission, addressed to Walter Myers of my staff. You asked whether passenger car tires that have the DOT symbol and the Uniform Tire Quality Grading Standards (UTQGS) ratings mo lded on the sidewalls may legally be sold in the United States. The short answer is yes, provided that the tires in fact comply with all applicable Federal motor vehicle safety standards (FMVSS).

By way of background information, 49 U.S.C. @ 30101, et seq. (hereinafter referred to as Safety Act), directs the National Highway Traffic Safety Administration (NHTSA) to issue FMVSSs applicable to new motor vehicles and new items of motor vehicle equip ment prior to the first retail sale of such vehicles or equipment. Tires are considered motor vehicle equipment. The Safety Act provides at 49 U.S.C. @ 30112(a) that no person may manufacture, sell, offer for sale, or import into the United States any new motor vehicle or item of motor vehicle equipment unless that vehicle or equipment complies with applicable FMVSSs and is covered by a certification to that effect issued in accordance with 49 U.S.C. @ 30115. The latter section provides in pertinent part that "Certification of equipment may be shown by a label or tag on the equipment . . . ." Thus, any new tire sold by Twin Tire must comply with all applicable FMVSS's, and be certified as doing so.

FMVSS No. 109, New pneumatic tires, a copy of which is enclosed for your information, specifies the minimum standards applicable to new passenger car tires. This standard specifies labeling and performance requirements applicable to passenger car tires, which include tubeless tire resistance to bead unseating, tire strength, tire endurance, and high speed performance. If the tires in question fail to comply with Standard No. 109, the manufacturer (or importer of noncomplying tires) must notify the pur chasers of the product and remedy the noncompliance without charge to the purchaser(s). Failure to comply with any FMVSS can also result in civil penalties of up to $ 1,000 per violation, up to a maximum of $ 800,000 for a series of related violations.

With regard to the situation you present, 49 U.S.C. 30112(b) provides two exceptions to the prohibition of 30112(a) against selling noncomplying equipment, such as tires. The first exception is that the prohibition does not apply to a person who had no reason to know, despite exercising reasonable care, that an item of equipment does not comply with applicable FMVSS's. The second exception is for a person who holds a certificate issued by the equipment manufacturer stating that the equipment complies with applicable FMVSS's, provided that the person does not know about the noncompliance. However, if Twin Tire were to sell the tires in question and those tires failed to comply with applicable FMVSS's, it is unlikely that Twin Tire could successfully argue that it qualifies for these exceptions, as a defense to an enforcement action for selling the noncomplying equipment.

You state in your letter that the tire manufacturer "breached their contract to manufacture these tires under the premise of US regulations." If the breach concerned the ability of the tires to conform to the requirements of the applicable FMVSS's, Twin Tire would be on notice that there is a reasonable possibility that the tires in question, while labeled with a DOT mark certifying compliance, do not in fact comply. In a situation where a seller has reason to believe the equipment it is selling might not comply with applicable FMVSS's, the seller must ascertain if the certification is bona fide before selling the item.

The following discussion relates to the "DOT" and other markings that you describe on the tires. Paragraph S4.3.1 of FMVSS No. 109 provides that:

Each tire shall be labeled with the symbol DOT in the manner specified in Part 574 of this chapter, which shall constitute a certification that the tire conforms to applicable Federal motor vehicle safety standards (emphasis added).

Similarly, the UTQGS, also applicable only to passenger car tires, found at 49 CFR 575.104 (copy enclosed), provides at 49 CFR 575.104(d)(1)(i)(A):

Except for a tire of a new tire line . . ., each tire shall be graded with the words, letters, symbols, and figures specified in paragraph (d) (2) of this section, permanently molded into or onto the tire sidewall . . . .

Finally, 49 CFR 574.5 requires each tire sold in the United States have a tire identification number (TIN) molded into or onto the tire sidewall by the manufacturer to facilitate recall in the event of a noncompliance or defect.

To summarize, the answer to your question is the tires in question can be sold only if they comply with all applicable FMVSSs (including Standard No. 109's labeling and performance requirements) and are so labeled in the prescribed locations with the DOT symbol, the UTQGS grades, and the TIN.

I hope this information is helpful to you. Should you have any additional questions or need further information, please feel free to contact Mr. Myers at this address or at (202) 366-2992.