ID: 2502y

Mr. Karl-Heinz Faber
Senior Vice President
Mercedes-Benz of North America, Inc.
One Mercedes Drive
P.O. Box 350
Montvale, NJ 07645-0350

Dear Mr. Faber:

This is in response to your letter of April 19, 1990 to Barry Felrice, our Associate Administrator for Rulemaking, in which you sought an interpretation of Standard No. 201, Occupant Protection in Interior Impact (49 CFR 571.201). More specifically, you stated in your letter that future Mercedes-Benz vehicles will come equipped with new armrests between the two front and, where applicable, two rear seating position. The new design will have a built-in compartment that can accommodate car phone storage. It will be covered by a lift-up lid that will afford easy access to the phone.

Your letter indicated that your company believes the lift-up lid on this armrest would not be subject to the provisions of S3.3 and S3.3.1 of Standard No. 201 for "interior compartment doors," since those provisions do not apply to doors incorporated in center armrests. However, your letter indicated your company's belief that the new armrests would be subject to the requirements of S3.5.2 of Standard No. 201, which applies to folding armrests. As explained more fully below, these beliefs appear to be correct applications of the standard.

At the outset, I would like to note that section 114 of the National Traffic and Motor Vehicle Safety Act of 1966 (15 U.S.C. 1403) makes a vehicle's manufacturer responsible for certifying that the vehicle complies with all applicable provisions of the Federal motor vehicle safety standards. For this reason, NHTSA has no authority to approve, endorse, or offer assurances of compliance for any vehicle designs or features. NHTSA will, however, tentatively state our opinion of how the safety standards would apply to a vehicle design or feature. It is important that the manufacturer be aware that these tentative statements of agency opinion are based entirely on the information presented to the agency by the manufacturer, and that the agency opinions may change after NHTSA has had an opportunity to examine the vehicle itself or otherwise acquire additional information. With those caveats, I agree with you that sections S3.3 and S3.3.1 of Standard No. 201 do not appear to apply to the lift-up lid on your armrest design. Section S3.3 of Standard No. 201 requires that interior compartment doors "located in an instrument panel, console assembly, seat back, or side panel adjacent to a designated seating position" remain closed when tested in accordance with the demonstration procedures in section S3.3.1 of the Standard. It is not clear if the lift-up lid on your armrest design would qualify as an "interior compartment door" within the meaning of the definition of that term in 49 CFR 571.3 ("any door in the interior of the vehicle installed by the manufacturer as a cover for storage space normally used for personal effects"). If the armrest is designed for storage of personal effects, the lift-up lid on the armrest would be considered an "interior compartment door." If the armrest is not designed for storage of personal effects, the lift-up lid would not be an "interior compartment door" and S3.3 and S3.3.1 would not apply to it. Even if the lift-up lid were considered an interior compartment door, it would not appear to be subject to sections S3.3 and S3.3.1 of the Standard. This is because those sections apply only to interior compartment doors "located in an instrument panel, console assembly, seat back, or side panel adjacent to a designated seating position . . . ." Only interior compartment doors located in the listed components must comply with S3.3 and S3.3.1. Since an armrest is not among the listed components, interior compartment doors located in an armrest are not subject to S3.3 and S3.3.1.

You also discussed the applicability of section S3.5.2 of Standard No. 201 to your armrest design. Section S3.5.2 applies to armrests that folds into the seat back or between two seat backs. Based on the information supplied in your letter, we agree that your armrest design would be subject to section S3.5.2 of Standard No. 201, because it is a folding armrest between two seat backs. We also agree with your suggestion that Mercedes-Benz may comply with section S3.5.2 by ensuring that this armrest design is "constructed of or covered with energy-absorbing material."

I hope this information is helpful. Please feel free to contact me if you have any additional questions or need some additional information on this subject.

Sincerely,

Paul Jackson Rice Chief Counsel

/ref:201 d:6/l4/90

ID: 2503y

Mr. Theo Bose
Webasto Heater, Inc.
1458 E. Lincoln
Madison Hts., MI 48071

Dear Mr. Bose:

You wrote to the Federal Highway Administration (FHWA) asking about requirements for "diesel fuel burning coolant heaters and air heaters" that you import for installation in trucks, buses and school buses. According to the installation instructions for the heaters, they are connected either to the fuel tank of the vehicle or to a separate fuel tank. The FHWA forwarded us your letter with regard to Federal Motor Vehicle Safety Standard (FMVSS) No. 301, Fuel System Integrity, since the National Highway Traffic Safety Administration (NHTSA) is responsible for this standard. I regret the delay in responding.

By way of background, NHTSA is authorized to issue FMVSS's applying to the manufacture of new motor vehicles and items of motor vehicle equipment. NHTSA is not authorized to certify or approve motor vehicles or motor vehicle equipment for compliance with our FMVSS's. Instead, under the National Traffic and Motor Vehicle Safety Act (copy enclosed), each manufacturer of a motor vehicle or item of motor vehicle equipment is responsible for certifying that its products meet all applicable safety standards. This process requires each manufacturer to determine in the exercise of due care that its products meet all applicable requirements. (A general information sheet describing manufacturers' responsibilities under the Safety Act is enclosed.)

The Safety Act defines the term "manufacturer" as "any person engaged in the manufacturing or assembling of motor vehicles or motor vehicle equipment, including any person importing motor vehicles or motor vehicle equipment for resale." (102(5); emphasis added.) As a manufacturer of motor vehicle equipment, you are responsible for compliance with the Safety Act and applicable regulations.

There is currently no FMVSS that directly applies to the heating unit you describe. Standard No. 301 (copy enclosed) applies only to completed new motor vehicles, and not to components of fuel systems. (The standard applies to trucks and buses with a gross vehicle weight rating of 10,000 pounds or less, and to school buses.) However, Federal law may affect the installation of your product, depending on who installs the heating unit and when the work is performed.

If the heating unit were installed as original equipment on a new vehicle, the vehicle manufacturer is required by our certification regulations to certify that the entire vehicle (with your product installed) satisfies the requirements of all applicable FMVSS's. If the heater were added to a new, previously-certified vehicle (e.g., a new completed school bus), the person who adds the system would be required to certify that, as altered, the vehicle continues to comply with all of the safety standards affected by the alteration. These certification requirements apply to the vehicle manufacturer and alterer regardless of whether the heater is connected to the vehicle's fuel system. Of course, if the heater is connected to the vehicle's fuel system, the vehicle's compliance with Standard No. 301 should be carefully scrutinized. (I have enclosed a copy of our certification regulation (49 CFR Part 567) for your information.)

If the heater were installed on a used vehicle by a vehicle manufacturer, distributor, dealer or repair business, the installer would not be subject to the certification requirements outlined above. Instead, the installer would have to ensure that it did not knowingly render inoperative the compliance of the vehicle with any applicable safety standard, including Standard No. 301. This is required by 108(a)(2)(A) of the Safety Act. If the modification of the vehicle entailed connecting the heater to the vehicle's fuel system, compliance with Standard No. 301 would of course be especially germane to whether the modification had rendered inoperative the vehicle's compliance.

The prohibition of 108(a)(2)(A) does not apply to individual vehicle owners who alter their own vehicles. Thus, under our requirements, individual owners may install any item of motor vehicle equipment regardless of its effect on compliance with Federal motor vehicle safety standards. However, NHTSA encourages vehicle owners not to tamper with vehicle safety equipment if the modification would degrade the safety of the vehicle.

In addition to the foregoing, you should be aware that manufacturers of motor vehicle equipment are subject to the requirements in sections 151-159 of the Safety Act concerning the recall and remedy of products with defects relating to motor vehicle safety. If you or NHTSA determines that a safety-related defect exists, you must notify purchasers of your product and remedy the problem free of charge. (Note that this responsibility is borne by the vehicle manufacturer in cases in which the heater is installed on a new vehicle by or with the express authorization of that vehicle manufacturer.) Any manufacturer which fails to provide notification of or remedy for a defect may be subject to a civil penalty of up to $1,000 per violation.

I hope this information is helpful. Please contact my office if you have further questions.

Sincerely,

Stephen P. Wood Acting Chief Counsel

Enclosures /ref:301 d:5/3l/90

ID: 2504y

Virve Airola
Oy Toppi Ab
Toppi Plast.
PL 25 P.O. Box
SF-02321 ESPOO
Finland

Dear Mr. Airola:

This responds to your letter concerning Federal Motor Vehicle Safety Standard (FMVSS) No. 106, Brake Hoses. We understand that you are interested in supplying your products to a vehicle manufacturer (Saab-Scania), who specifies that you must "register" with this agency as a brake hose manufacturer. You request information that would enable you to meet this product specification. I regret the delay in responding.

By way of background, the National Highway Traffic Safety Administration (NHTSA) administers Federal regulations for the manufacture and sale of new motor vehicles and certain items of motor vehicle equipment (including brake hoses) sold in or imported into this country. The National Traffic and 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. This process requires each manufacturer to determine in the exercise of due care that its products meet all applicable requirements. NHTSA tests vehicles and equipment sold to consumers for compliance with the FMVSS's and investigates defects relating to motor vehicle safety. If a manufacturer or NHTSA determines that a noncompliance or safety-related defect exists, the manufacturer must notify purchasers of its product and remedy the problem free of charge. (Note that this responsibility is borne by the vehicle manufacturer in cases in which your hoses are installed on a new vehicle by or with the express authorization of that vehicle manufacturer.) Any manufacturer which fails to provide notification of or remedy for a noncompliance or defect may be subject to a civil penalty of up to $1,000 per violation.

Saab-Scania's product specification appears to relate to the labeling requirements of Standard No. 106. Under S7.2.1(b) of Standard No. 106, air brake hose manufacturers must label their hose with a designation (consisting of block capital letters, numerals or a symbol) that identifies the manufacturer of the hose. The designation assists NHTSA in identifying the manufacturers of noncomplying or defective brake hoses. There is no NHTSA application form for the designation; instead, the manufacturer simply files the designation in writing with NHTSA's Crash Avoidance Division, at the address provided in S7.2.1(b) of the standard.

From your letter, it appears that Saab-Scania also specifies that your brake hoses must meet all applicable FMVSS's. Standard No. 106 applies to new motor vehicles and to "brake hoses" (which include plastic tubing), brake hose end fittings, and brake hose assemblies. The standard specifies labeling and performance requirements for these products to reduce the likelihood of brake system failure from ruptures in the brake hose or brake hose assembly. New brake hoses, end fittings and assemblies must meet these requirements to be sold in or imported into this country. If they don't comply, the manufacturers are subject to civil penalties of $1000 per violation, and the notification and remedy provisions of the Safety Act. I have enclosed a copy of the standard for your information, photocopied from the October 1, 1989 edition of Title 49 of the Code of Federal Regulations (49 CFR 571.106).

In addition to the requirements described above, please note that your manufacture of brake hoses may also be affected by NHTSA's longstanding interpretation of our regulation on manufacturer identification (49 CFR Part 566; copy enclosed), if Saab-Scania sells vehicles equipped with your brake hoses in this country. This rule requires a manufacturer of equipment to which an FMVSS applies ("covered equipment"--e.g., brake hoses) to submit its name, address, and a brief description of the items of equipment it manufactures to NHTSA separately from the vehicle manufacturer to which the equipment manufacturer supplies its products. NHTSA has interpreted this regulation to require the information from foreign manufacturers of covered equipment supplying their products to a foreign vehicle manufacturer selling its vehicles in the United States. (Enclosed is a copy of the agency's January 26, 1972 letter to Mr. Nakajima of Toyota Motor Company on this issue.)

Please note that Oy Toppi is not required to designate an agent for service of process under 49 CFR Part 551 (Subpart D), if Oy Toppi supplies its products only to a foreign vehicle manufacturer. This is the case even if the foreign vehicle manufacturer installs Oy Toppi's products on vehicles that will be sold in the United States. However, please keep in mind that Oy Toppi must designate an agent under Part 551 if Oy Toppi decides to offer its equipment for importation into the United States. I have enclosed a copy of this regulation for your information.

I hope this information is helpful. Please contact us if you have further questions.

Sincerely,

Stephen P. Wood Acting Chief Counsel

Enclosures /ref:106#VSA#566#551 d:5/3l/90

ID: 2505y

Mr. Suichi Watanabe
General Manager
Automotive Lighting
Engineering Control Department
Stanley Electric Co., Ltd.
2-9-13, Nakameguro, Meguro-ku
Tokyo 153, Japan

Dear Mr. Watanabe:

This is in reply to your letter of March 19, 1990, asking whether a new combination rear lamp is permitted under Motor Vehicle Safety Standard No. l08.

The lamp consists of three compartments. In its normal operating mode, when the taillamp and/or stop lamp are activated, all three compartments show a red light. Your question arises with respect to three different operating modes. The first occurs when the turn signal is activated; the red light in one of the compartments is replaced by an amber flashing one. The second occurs when the backup lamp is activated; the red light in another of the compartments is replaced by a white steady-burning one. The third occurs when both the backup lamp and turn signal are activated; in this event, the combination lamp would present an amber flashing light, a red steady-burning one, and a white steady-burning one. You have informed us that "the requirement of photometric and lighted area for each lamp function comply to FMVSS No. l08 and related SAE Standards." Further, as for the stop and taillamp functions, they comply with requirements for one and three compartment lamps when operating with one or three compartments (we assume that they would also meet the requirements for two compartment lamps).

The lamp appears to be intended to fulfill the requirements of Standard No. l08 for turn signal, stop, tail, and backup lamps. Thus, your question appears to be whether Standard No. l08 requires separate lamps or compartments dedicated to a specific purpose, or whether your multiple purpose lamp is acceptable.

Standard No. l08 does not prohibit a combination of the functions that any chamber of your lamp provides. When a specific function is activated, the lamp will perform that particular function in a manner that appears to meet the minimum standard established by Standard No. l08. Assuming that the CIE color definitions for white, amber, and red are met by the backup, turn, and stop/tail functions, the lamp appears to be permissible under Standard No. l08.

Sincerely,

Stephen P. Wood Acting Chief Counsel

ref:l08 d: 5/3l/90

ID: 2506y

Mr. Suichi Watanabe
General Manager
Automotive Lighting
Engineering Control Department
Stanley Electric Co., Ltd.
2-9-13, Nakameguro, Meguro-ku
Tokyo 153, Japan

Dear Mr. Watanabe:

This is in reply to your letter of March 19, 1990, asking whether a new combination rear lamp is permitted under Motor Vehicle Safety Standard No. l08.

The lamp consists of three compartments. In its normal operating mode, when the taillamp and/or stop lamp are activated, all three compartments show a red light. Your question arises with respect to three different operating modes. The first occurs when the turn signal is activated; the red light in one of the compartments is replaced by an amber flashing one. The second occurs when the backup lamp is activated; the red light in another of the compartments is replaced by a white steady-burning one. The third occurs when both the backup lamp and turn signal are activated; in this event, the combination lamp would present an amber flashing light, a red steady-burning one, and a white steady-burning one. You have informed us that "the requirement of photometric and lighted area for each lamp function comply to FMVSS No. l08 and related SAE Standards." Further, as for the stop and taillamp functions, they comply with requirements for one and three compartment lamps when operating with one or three compartments (we assume that they would also meet the requirements for two compartment lamps).

The lamp appears to be intended to fulfill the requirements of Standard No. l08 for turn signal, stop, tail, and backup lamps. Thus, your question appears to be whether Standard No. l08 requires separate lamps or compartments dedicated to a specific purpose, or whether your multiple purpose lamp is acceptable.

Standard No. l08 does not prohibit a combination of the functions that any chamber of your lamp provides. When a specific function is activated, the lamp will perform that particular function in a manner that appears to meet the minimum standard established by Standard No. l08. Assuming that the CIE color definitions for white, amber, and red are met by the backup, turn, and stop/tail functions, the lamp appears to be permissible under Standard No. l08.

Sincerely,

Stephen P. Wood Acting Chief Counsel

ref:l08 d: 5/3l/90

ID: 2507y

Mr. Mike Love
Manager, Safety Compliance
Porsche Cars North America, Inc.
100 West Liberty Street
P. O. Box 30911
Reno, Nevada 89520-3911

Dear Mr. Love:

This responds to your request that this agency determine that the new feature added to the antitheft device proposed to be installed on the MY 1991 911 and 928 Porsche car lines, represents a de minimis change in the system that was the basis for the agency's previous granting of a theft exemption for those car lines beginning in MY 1990, and that therefore Porsche 911's and 928's containing the new device would be fully covered by that exemption.

As you are aware, the Porsche 911 and 928 car lines were granted an exemption, pursuant to 49 CFR Part 543, from antitheft marking because Porsche showed that the antitheft device to be used in lieu of marking on these car lines was likely to be as effective as parts marking. This exemption was issued on May 25, 1989, and appeared in the Federal Register on June 2, 1989 (54 FR 23727).

The agency granted the exemption from theft marking because the agency found that based on substantial evidence, the agency believed that the antitheft device is "likely to be as effective in reducing and deterring motor vehicle theft as compliance with the parts-marking requirements of the theft prevention standard (49 CFR Part 541)." In the granting of the exemption from theft marking, the agency stated that it believed that the device will provide the types of performance listed in 49 CFR Part 543.6(a)(3): Promoting activation; attracting attention to unauthorized entries; preventing defeat or circumventing of the device by unauthorized persons; preventing operation of the vehicle by unauthorized entrants; and ensuring the reliability and durability of the device.

In your letter, it was stated that beginning from MY 1991, Porsche plans to modify the antitheft device that is standard equipment on the Porsche 911 and 928, as follows: integrate the alarm control unit with the central locking and interior light control units; incorporate a feature that will also monitor the glove box for unauthorized opening; improve diagnostic capability in order to enhance serviceability; and install a capability to accept other features (such as motion sensors) if they are desired in the future.

In addition, it was stated that the changes in the system will be virtually unnoticeable to the operator, and that the system will still be armed passively by locking either door with the key. Further, with the addition of the glovebox, all the same points of entry, such as the doors, hood, and hatch, will be monitored by the system and the engine disabling and alarm features will be the same. Porsche further stated that the system "will be as protected and tamper resistant as the current system."

After reviewing the proposed changes to the componentry and performance of the antitheft device on which the exemption was based, the agency concludes that the changes are de minimis. While the new device has enhanced componentry and provides some aspects of performance not provided by the original device, it also continues to provide the same aspects of performance provided by the original device and relies on essentially the same componentry to provide that performance. Therefore, it is not necessary for Porsche to submit a petition to modify the exemption pursuant to 49 CFR Part 543.9(c)(2).

If Porsche does not implement the new antitheft device as described in your letter, or delays implementation until after MY 1991, we request that Porsche notify the agency of such decisions.

It is my understanding that, in an April 13, 1990, telephone conversation with Dorothy Nakama of NHTSA's Office of Chief Counsel, you stated that Porsche was not requesting confidential treatment of any information provided in your letter. Therefore, a copy of your letter, and this response, will be placed together in NHTSA's public docket.

Sincerely,

Barry Felrice Associate Administrator for Rulemaking

ref:Part 543 d:5/3l/90

ID: 2508y

Mr. Michael S. Kmiecik
5601 Western Avenue
Omaha, Nebraska 68132

Dear Mr. Kmiecik:

This responds to your letter with respect to vehicle modification kits you wish to purchase and use in the conversion of used Datsun cars. You asked about the Part 58l Bumper Standard and Safety Standard No. 2l5 with respect to using Datsuns produced before September l, l978. You asked whether the kit would meet the requirements of Safety Standard No. 2l5. I regret the delay in responding. (I note that you sent a separate letter asking about the safety standards that apply to l974-78 convertibles, and whether the conversion kit meets those standards. I am responding to that letter separately).

We appreciate your efforts to meet the requirements of the National Traffic and Motor Vehicle Safety Act. A provision of the Act requires, in essence, that vehicle alterations by a motor vehicle manufacturer, distributor, dealer or repair business must not render wholly or partially inoperative any device or element of design installed on that vehicle in accordance with a Federal motor vehicle safety standard. This means that a vehicle at the end of its conversion process must continue to meet the standards that applied at the time that it was first manufactured.

As you may know, the Part 58l Bumper Standard became applicable to passenger cars manufactured on or after September l, l978. It replaced Safety Standard No. 2l5, Exterior Protection, which applied to passenger cars manufactured from September l, l972 to August 30, l978.

In converting a car to which Standard No. 2l5 originally applied, care must be taken to ensure that the changes do not affect the ability to conform to the applicable performance requirements of that standard (copy enclosed). We regret that we are unable to advise you of the effect that any specific modifications would have on the performance of the vehicle as converted. The manufacturer of the kit may be able to provide information on this subject. You also requested a copy of Safety Standard No. l08, Lamps, Reflective Devices, and Associated Equipment. I have enclosed a copy of that standard revised as of October l, l989. I have also enclosed an information sheet which provides information for new manufacturers, and includes information concerning how to obtain copies of safety standards.

I hope this information is helpful.

Sincerely,

Stephen P. Wood Acting Chief Counsel

Enclosures

ref:58l:VSA

ID: 2509y

Timothy A. Kelly, President
Salem Vent International, Inc.
P.O. Box 885
Salem, VA 24153

Dear Mr. Kelly:

This responds to your request for an interpretation of Federal Motor Vehicle Safety Standard (FMVSS) No. 217; Bus Window Retention and Release as it applies to roof exits. You asked four specific questions which I have addressed below.

First, you asked for confirmation that the only specification in Standard No. 217 concerning the size of roof exits is the requirement that the exit be able to accommodate an ellipsoid with a major axis of 20 inches and a minor axis of 13 inches pushed horizontally through the exit opening. Your understanding is not entirely correct. The ellipsoid requirement to which you refer, set forth in S5.4.1 of Standard No. 217, is the only provision in the standard that specifies a minimum size requirement for roof exit openings. Although there is no maximum size limit, you should be aware that S5.2 of Standard No. 217 provides that, in determining the total unobstructed openings for emergency exit provided by a bus, no emergency exit, regardless of its area shall be credited with more than 536 square inches of the total area requirement. Thus, if a roof exit is larger than 536 square inches, only 536 square inches will be counted for the exit in determining whether the bus complies with the unobstructed openings requirement of S5.2 of Standard No. 217.

Second, you asked for confirmation that Standard No. 217 does not permit the use of escape hatches or ventilators in the roof of school buses as a substitute for any of the emergency exits required on school buses by S5.2.3 of Standard No. 217. This understanding is correct. Additionally, you should be aware that the agency has a longstanding position that any emergency exits, including any roof exits, installed on a school bus in addition to the emergency exits required by S5.2.3 must conform to the requirements of Standard No. 217 for emergency exits installed on buses other than school buses. See the enclosed July 6, 1979 interpretation to Robert Kurre on this issue. Third, you asked for confirmation that Standard No. 217 permits the use of roof exits as a substitute for the rear exit door on buses other than school buses. This statement is not entirely correct. S5.2.1 of Standard No. 217 requires the use of a rear exit door on all non-school buses with a GVWR of more than 10,000 lbs., except where the configuration of the bus precludes the installation of an accessible rear exit. In that case, S5.2.1 requires the installation of a roof exit in the rear half of the bus in lieu of the rear exit. This substitution of a roof exit for a rear exit door is allowed only where the bus design precludes the use of a rear exit (such as on rear-engine buses). It is not an option allowing the substitution of a roof exit for the rear door in any design.

Fourth, you asked whether the addition of more than one roof exit on a non-school bus would allow a manufacturer to delete any other required exits in addition to the rear door. It is possible that increasing the total exit space on the bus by adding roof exits could enable a manufacturer to reduce the number or size of other emergency exits on the bus and still comply with the unobstructed openings requirement of S5.2. You should be aware that exit space provided by roof exits is not counted in determining compliance with the requirement in S5.2 that 40 percent of the total unobstructed openings be located on each side of the bus. Whether this substitution of additional roof exits could be made on any particular non-school bus would depend upon whether the bus complied with the exit space and location requirements of S5.2.1 (if the bus has a GVWR of more than 10,000 pounds) and the applicable requirements of S5.2.2 (if the bus has a GVWR of 10,000 pounds or less).

I hope you have found this information helpful. Please do not hesitate to contact David Greenburg of my staff at (202) 366-2992 if you have any further questions or need additional information.

Sincerely,

Stephen P. Wood Acting Chief Counsel

Enclosure

/ref:217 d:5/30/90

ID: 2510y

Mr. Raymond D. Strakosch
President
Safety Premiums
87 Broadway
P. O. Box 1031
Newburgh, NY 12550

Dear Mr. Strakosch:

Thank you for your letter to John Messera, of our Office of Vehicle Safety Compliance, seeking an interpretation of Standard No. 125, Warning Devices (49 CFR 571.125). You indicated that you have for many years produced and sold a "Signal Glo Car Door Mirror Clip On," which you described as a "dangling safety tag which attaches to the car mirror to alert passersby of emergency needs." These warning devices are made of a reflective plastic material designed with a clip attachment, and come in eight different shapes, including a triangular configuration. These products are slightly more than four inches high.

You also stated that, pursuant to a request from a customer, your company has developed a larger size warning triangle for mounting on a car mirror. You have provided a prototype of this new larger size "Lite at Nite" Reflective Auto Triangle, that is approximately 6" at the base and 5 1/2" in height. You stated that, as your warning triangle gets larger, you "wish to make sure it is not confused with the roadside truck version described in Standard No. 125." Additionally, you stated that you wanted to be certain that the instructions for this larger size warning triangle "in no way conflict with the standard." I am pleased to have this opportunity to explain our law and regulations to you.

The National Traffic and Motor Vehicle Safety Act (15 U.S.C. 1381 et seq.; the Safety Act) gives this agency the authority to issue safety standards applicable to new motor vehicles and new items of motor vehicle equipment. This agency has exercised this authority to establish Standard No. 125. Section S3 of Standard 125 states that the standard "applies to devices, without self-contained energy sources, that are designed to be carried in motor vehicles, and used to warn approaching traffic of the presence of a stopped vehicle, except for devices designed to be permanently affixed to the vehicle." (Emphasis added.)

This language in S3 of Standard No. 125 makes clear that the standard's requirements are not limited to devices used by large trucks; that is, Standard No. 125 does not apply only to a "roadside truck version" of a warning device. Instead, the standard applies to all devices designed to be carried in any motor vehicle, from the smallest motorcycle to the largest truck, if the device satisfies the other conditions set forth in S3 of the standard.

One of the conditions set forth in S3 is that the device must be designed to be used to "warn approaching traffic of a stopped vehicle." Devices that are not intended to warn approaching traffic of a stopped vehicle, but only to alert passing traffic of the stopped vehicle's need for assistance, are not subject to Standard No. 125. Examples of such devices include a rag tied on a radio antenna and a "HELP" message printed on a folding cardboard sunshade. By the time approaching traffic sees one of these non-warning devices, the traffic would already be aware that the vehicle displaying such a device was stopped.

Your "Signal Glo Car Door Mirror Clip On" product appears to be designed and to function in the same way other non-warning devices do; i.e., it does not appear to be intended to warn approaching traffic of a stopped vehicle, but to alert passing traffic that the stopped vehicle needs assistance. If this is the case, the "Signal Glo Car Door Mirror Clip On" would not be subject to Standard No. 125.

However, the larger "Lite at Nite" Reflective Auto Triangle may be designed to be used to "warn approaching traffic of a stopped vehicle." It appears from the promotional material enclosed in your letter that this larger triangle is intended to serve the same purpose as what you call "truck warning triangles." We assume that you are describing warning devices that are certified as complying with Standard No. 125. If your larger triangle is to serve this function, it would be subject to Standard No. 125 and would have to conform to all the requirements of the standard. From the enclosed copy of Standard No. 125, you will see that some of the specific requirements with which the larger triangle must conform include minimum size, durability, material, container, labeling, configuration, color, reflectivity, luminance, and stability.

When the agency has issued an applicable safety standard, section 108(a)(1)(A) of the Safety Act (15 U.S.C. 1397(a)(1)(A)) provides that no person shall "manufacture for sale, sell, offer for sale, or introduce or deliver for introduction in interstate commerce, or import into the United States" any new motor vehicle or new item of motor vehicle equipment unless the vehicles or equipment are in conformity with the applicable standard. Further, the Safety Act provides that NHTSA has no authority to approve, certify, or otherwise endorse any commercial product. Instead, section 114 of the Safety Act (15 U.S.C 1403) establishes a self-certification process under which every manufacturer is required to certify that each of its products meet all applicable Federal safety standards. To comply with any applicable legal obligations, especially in connection with the manufacture of the larger size warning triangle, I suggest that you carefully examine the requirements of Standard 125 and consider the design, marketing, and intended use of the new larger warning triangle. You should also be aware that the Safety Act establishes a civil penalty of $1,000 for each violation of a safety standard and a maximum penalty of $800,000 for a series of violations. In addition, the Act requires manufacturers to notify purchasers and remedy any items of motor vehicle equipment, such as warning devices, that do not conform with any applicable safety standards.

I have also enclosed an information sheet for new manufacturers of motor vehicles and motor vehicle equipment, that briefly summarizes our laws and regulations and explains how to get copies of those laws and regulations. If you have any further questions or need additional information on this subject, please feel free to contact Dorothy Nakama of my staff at this address or by telephone at (202) 366-2992.

Sincerely,

Stephen P. Wood Acting Chief Counsel

Enclosures ref:125 d:6/5/90

ID: 2511y

Mr. C. Coleman Bird
Pepper, Hamilton & Scheetz
1300 Nineteenth St., N.W.
Washington, D.C. 20036

Dear Mr. Bird:

This responds to your request for an interpretation by this office as to whether a portable back massage device capable of being used in an automobile and powered by the vehicle's electrical system constitutes a piece of motor vehicle equipment as that term is used in the National Traffic and Motor Vehicle Safety Act of 1966 (the Act). I regret the delay in responding to your inquiry.

The product you described in your letter consists of an inflatable cushion that conforms to the user's back and contains two electric massage units capable of massaging the upper and lower portions of the user's back. The device can also provide heat. It is designed for use either indoors or in a vehicle by means of an adapter which plugs into the cigarette lighter. When the device is used in a vehicle, it is simply placed on the seat, and does not require any additional installation, other than connection to a power supply. You have asked three questions about this device, which I have discussed below.

Your first question was whether this device would be considered an item of "motor vehicle equipment" within the meaning of the National Traffic and Motor Vehicle Safety Act? Section 102(4) of the Act (15 U.S.C. 1391(4)) defines, in part, the term "motor vehicle equipment" as:

any system, part, or component of a motor vehicle as originally manufactured or any similar part or component manufactured or sold for replacement or improvement of such system, part, or component or as any accessory, or addition to the motor vehicle..... (Emphasis added.) Since the portable back massage device is not original equipment or sold for replacment or improvement of any original equipment, it would be included within this definition only if it were an "accessory." In determining whether an item of equipment is considered an "accessory," the agency considers the following two criteria:

First, when a substantial portion of the expected uses of a product are related to the operation or maintenance of motor vehicles, the product should be considered an item of motor vehicle equipment within the meaning of the Safety Act. Second, if the product is intended to be used principally by ordinary users of such motor vehicles, we would consider it to be an accessory.

Based on the limited information you have provided, I am unable to reach a conclusion as to whether the back massage device would be considered an item of motor vehicle equipment. However, I will explain the considerations the agency focuses upon when applying the above critieria to specific products.

We would determine the expected uses of a product by considering the product advertising, product labeling, and the type of store which retails the product, as well as any available information about the actual use of the product. We anticipate that products found to satisfy the first criterion will ordinarily, although not necessarily, be ones that are carried in a vehicle. For example, if the device is portrayed in advertising as being in used in motor vehicles, includes as a standard feature a 12 volt adapter enabling its use in a vehicle, and is sold through retail outlets specializing in automotive equipment and accesories, it would be more likely to be considered an item of motor vehicle equipment than a product which did not have these characteris- tics. In evaluating the second criteria, the agency looks at whether the product is intended primarily for the use of consumers, rather than by professionals such as automotive repair and service personnel.

Your second question concerned whether the back massager would be subject to the Federal Motor Vehicle Safety Standards (FMVSS). If the device is not determined to be an item of motor vehicle equipment, it is beyond the scope of the agency's authority to regulate it. Even if it is determined to be motor vehicle equipment, and therefore subject to other provisions of the Safety Act, there is no Standard applicable to this type of device.

With regard to your final question, we do not generally provide advice about the authority of other Federal agencies. However, if it is not considered motor vehicle equipment under the Safety Act, the Consumer Product Safety Commission may have requirements governing such a device. It is also possible the Food and Drug Administration might consider it to be a medical device subject to that agency's regulation. In addition, some States may choose to regulate such devices. I am enclosing an information sheet which describes the Federal Motor Vehicle Safety Standards program, and how to get copies of the standards and any other NHTSA regulation. If you have further questions, please contact this office.

Sincerely,

Stephen P. Wood Acting Chief Counsel

Enclosure

ref:VSA

d:6/5/90