ID: 12582.mls

Mr. Michael C. Horan
833 Hawks Hollow
Delafield, WI 53018

Dear Mr. Horan:

This responds to your inquiry asking whether there were Federal safety laws in 1968 or 1969 pertinent to side-mounted exhaust systems known as "heat shields" on passenger cars. You state that a Wisconsin State trooper ticketed you for not having the original-equipment heat shield.

Although the National Highway Traffic Safety Administration (NHTSA) is authorized to regulate the safety of newly manufactured motor vehicles and motor vehicle equipment by issuing Federal motor vehicle safety standards, it has never issued any Federal motor vehicle safety standard or other regulation applicable to heat shields. Thus, Federal regulations neither require nor prohibit them.

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

Sincerely,

John Womack

Acting Chief Counsel

ref:mis

d.11/21/96

ID: 12583-2.pja

Allen F. Brauninger, Esq.
Regulatory Affairs Division
Office of the General Counsel
Consumer Product Safety Commission
Washington, D.C. 20207

Dear Mr. Brauninger:

This letter responds to your inquiry of whether PepperGas brand Defensive Pepper Spray (a defensive chemical spray used for protection from attackers) is an item of motor vehicle equipment. You forwarded a letter and some advertising literature from Mr. Dennis English, who after purchasing the "specially formulated automotive model" spray in a market, attached it to his sun visor, as illustrated in the advertising. While he was driving, the canister of spray leaked on him and on his child safety seat. The answer to your question is that this model of PepperGas defensive spray is an item of motor vehicle equipment.

As you are aware, the National Highway Traffic Safety Administration (NHTSA) is authorized to issue Federal motor vehicle safety standards for new motor vehicles and new items of motor vehicle equipment. 49 USC 30102(a)(7) defines the term "motor vehicle equipment" as:

(A) any system, part, or component of a motor vehicle as originally manufactured;

(B) any similar part or component manufactured or sold for replacement or improvement of a system, part, or component, or as any accessory or addition to a motor vehicle; or

(C) any device or an article or apparel ... that is not a system, part, or component of a motor vehicle and is manufactured, sold, delivered, offered, or intended to be used only to safeguard motor vehicles and highway users against risk of accident, injury, or death. (Emphasis added.)

The agency uses two criteria in determining whether a device is an "accessory." The first criterion is whether a substantial portion of the expected use of the item is related to the operation or maintenance of motor vehicles. We determine a product's expected use by considering product advertising, product labeling, and the type of store that

retails the product, as well as available information about the actual use of the product. The second criterion is whether the product is purchased or otherwise acquired, and principally used, by ordinary users of motor vehicles. If a product satisfies both criteria, then the product would be an "accessory."

Applying these criteria to the "specially formulated automotive model" PepperGas spray, we conclude that it is an accessory. The advertising and product labeling state that "PepperGas brand for automobiles" is "designed for personal protection and safe storage in vehicles." It says it is needed "while driving your own automobile." It is allegedly "especially formulated" to withstand the extreme temperatures in parked vehicles, up to 200 degrees F. It is advertised and pictured as attached to the sun visor, map pouch, center console and other vehicle locations with the built-in clip or enclosed Velcro backing. Due to the advertising, special design, and labeling, we conclude that its expected use is related to the operation of the motor vehicle. Since Mr. English purchased it at a market, we conclude that the product is purchased and principally used by ordinary users of motor vehicles. We note that only this particular model which is marked to be used especially in motor vehicles is a motor vehicle accessory.

Mr. English may call NHTSA's Auto Safety Hotline at (800) 424-9393 to report the incident. If you have any further questions, please feel free to contact Paul Atelsek of my staff at (202) 366-2992.

Sincerely,

John Womack
Acting Chief Counsel

cc: Mr. Dennis English
ref:VSA
d:1/30/97

ID: 12600.drn

Mr. Vladimir Rabkin
Express Marketing Systems
1414 30th Avenue #5
San Francisco, CA 94122

Dear Mr. Rabkin:

This responds to your request for an interpretation whether your product, a warning device without a self-contained energy source, may be sold for use with motor vehicles that have a GVWR under 10,000 pounds. As explained below, although the National Highway Traffic Safety Administration (NHTSA) cannot "approve" your product, the answer is yes.

In your FAX transmission, you asked for NHTSA's "review and approval" to market your product the "EMERSIGN" to the public and to car manufacturers. You stated, the "EMERSIGN is designed for vehicles that have GVWR under 10,000 pounds." A drawing enclosed with your transmission depicts a triangular object placed on one triangular point on a car roof. The words "Call 911" with a cross underneath the words are depicted on the triangle. Your product is described as having five basic signals for requesting "ambulance, police, fire engine, tow truck, and 'STOP'."

In a telephone conversation with Dorothy Nakama of my staff, you explained that the triangles are flat and made of reflective material. A magnet is placed at one triangular point to facilitate placing the triangle on the vehicle. You stated that telescoping posts (which you described as "antennae") are also provided so that the triangle may be placed on the vehicle side, roof, trunk top or other places.

By way of background information, our agency NHTSA, is authorized to issue Federal Motor Vehicle Safety Standards (FMVSSs) for new motor vehicles and new items of motor vehicle equipment. Unlike the practice in many countries, NHTSA does not provide approvals of motor vehicles or motor vehicle equipment. Instead, manufacturers are required to certify that their vehicles and equipment meet applicable standards.

As you know, NHTSA has issued Standard No. 125 Warning devices. The application section (S3.) of Standard No. 125 states that: "the standard applies to devices, without self-contained energy sources, that are designed to be carried in buses and trucks that have a gross vehicle weight rating (GVWR) greater than 10,000 pounds."

Your FAX stated that the EMERSIGN is designed for vehicles that have a GVWR under 10,000 pounds. Thus, if the EMERSIGN is sold for use with vehicles with a GVWR under 10,000 pounds, Standard No. 125 would not apply, the EMERSIGN would not have to meet Standard No. 125's specifications, and you, the manufacturer, would not certify that the EMERSIGN meets Standard No. 125.

Even when sold for use with vehicles with a GVWR under 10,000 pounds and no safety standard applies, other NHTSA laws may apply to the EMERSIGN. As an accessory to a motor vehicle, the EMERSIGN is an item of motor vehicle equipment. If either you or this agency should determine that a defect related to motor vehicle safety exists in the EMERSIGN, you, the manufacturer, will be required to notify consumers and dealers, and remedy the safety related defect at no cost to the consumers and dealers.

The EMERSIGN may also be subject to the laws of the individual States. We are unable to advise you on State laws, but you can get information by contacting the Department of Motor Vehicles of each State in which you wish to market your product.

I hope this information is helpful. I am also enclosing a copy of a NHTSA publication that provides information for new manufacturers of motor vehicles and motor vehicle equipment. If you need any further information, please contact Dorothy Nakama of my staff at (202) 366-2992.

Sincerely,

John Womack
Acting Chief Counsel
ref:125
d:10/30/96

ID: 12607.ztv

Larry Keith Evans, Esq.
Evans & Evans
113 West Taylor Street
Griffin, GA 30223

Re: Ox Bodies, Inc.; Fayette, Alabama

Dear Mr. Evans:

This is in reply to your letter of October 9, 1996, with reference to the lighting design on the rear of a dump truck manufactured by Ox Bodies, Inc. Although you did not ask for a reply, I assume that you are interested in our comments regarding several observations you have made.

Your understanding of the pertinent requirements of 49 CFR 571.108 Federal Motor Vehicle Safety Standard No. 108 Lamps, Reflective Devices and Associated Equipment is essentially correct. A truck whose overall width is 80 inches or more must have two red clearance lamps mounted on the rear. Rear side marker lamps and rear clearance lamps may be combined providing that the minimum photometric candela requirements for each are met. Compliance of rear clearance lamps, combination or otherwise, with the photometric minimum candela requirements of SAE Standard J592e, Clearance, Side Marker and Identification Lamps, July 1972 (incorporated by reference into Standard No. 108) is determined with the H-V axis of the lamp taken as parallel with the longitudinal axis of the vehicle. Ox Bodies is correct insofar as it states that the lamp must meet the minimum requirements when tested in the laboratory, but incorrect when it states that "there is no requirement that the light meet any requirements as installed on the vehicle." While Section S5.3 Location of required equipment does not specifically state that photometric requirements must be met when the clearance lamp is installed on a vehicle, compliance upon installation is implicit in paragraph S5.3.1.1. This paragraph specifies that "no part of the vehicle shall prevent . . . any other lamp [e.g. a clearance lamp] from meeting the photometric output at any test point specified in any applicable SAE

Standard. . . ." However, the issue in this case is whether a clearance lamp has been supplied in the first instance.

The photographs you enclosed clearly show that the side marker lamps on the truck in question are recessed in a side panel and cannot be seen from the rear. In our opinion, the truck has not been equipped with clearance lamps as required by Standard No. 108.

I note that you have furnished a copy of this letter to one of our standards enforcement engineers. The agency's Office of Vehicle Safety Compliance will give this matter the consideration it deserves, and we thank you for calling it to our attention.

Sincerely,

John Womack

Acting Chief Counsel

ref:108

d:11/18/96

ID: 12625.wkm

Mr. Pedro Matos
Quality Manager
CNB/CAMAC
Portugal

Dear Mr. Matos:

This responds to your telefax of October 23, 1996, to this office in which you asked two questions about Federal motor vehicle safety standard (FMVSS) No. 109, New Pneumatic Tires. You first asked why, in Table II of Appendix A, tires with a specified maximum load of 300 kiloPascals (kPa) are tested at a lower inflation pressure than tires for which the specified maximum load is 36 pounds per square inch (psi). You then asked why, in the kPa section of Table II, the test inflation pressures increase then decrease as the maximum kPa inflation pressures increase.

I have enclosed several notices that explain the reasons for these differing test inflation pressures. In 1977 Goodyear Tire & Rubber Company (Goodyear) and the Rubber Manufacturers Association (RMA) petitioned this agency to amend FMVSS No. 109 to permit production of a new P-type tire that was designed to use a higher maximum inflation pressure than the standard 240 kPa then permitted by the standard, but with no increase in load levels. In response to those petitions, this agency amended the standard to include a maximum permissible inflation pressure of 300 kPa because tires with higher inflation pressures have less rolling resistance which may result in increased fuel economy. However, since there would be no increase in load levels, the agency specified that the inflation pressures at which those tires would be tested would remain the same, that is, 180 and 220 kPa respectively (Enclosures 1 and 2).

Then in 1988, the European Tyre and Rim Technical Organisation (ETRTO) petitioned this agency to further increase the maximum inflation pressure, citing requests from member manufacturers. ETRTO petitioned this agency to amend FMVSS No. 109 to permit an inflation pressure of 340 kPa so that the standard maximum inflation pressure then in effect for reinforced tires, 280 kPa, could be increased for special performance requirements, but again, with no increase in tire load capacity. The agency granted the ETRTO petition citing the Goodyear/RMA petition as precedent. Again, because the requested higher inflation pressure carried no increase in load levels, the agency specified that the test pressures for the 340 kPa tires would remain at 220 and 260 respectively (Enclosures 3 and 4).

The latest maximum inflation pressure, 350 kPa, was added to the standard effective August 31, 1994. The test inflation pressures remain the same as the 240 and 300 kPa maximum pressures, namely 180 and 220 kPa respectively, for the same reasons as explained above (Enclosure 5).

I hope this explanation is helpful to you. For your information, I am also enclosing a copy of the latest version of FMVSS No. 109 (as of October 1, 1995) (Enclosure 6). If you have any further questions or need additional information with respect to our tire standards, please feel free to contact Walter Myers of my staff at this address or at (202) 366-2992.

Sincerely,

John Womack

Acting Chief Counsel

Enclosures

ref:109

d:12/5/96

ID: 12626.MLS

Mr. Eric M. Zimelman
6920 S.W. 44th Street, Suite 210
Miami, FL 33155

Dear Mr. Zimelman:

This responds to your letter asking whether your invention would "pose a problem" with Federal Motor Vehicle Safety Standard (FMVSS) No. 213, Child Restraint Systems. You met with our technical staff, including Mr. Jerome Kossar, Mr. George Mouchahoir, and Ms. Lori Summers, to discuss your invention, which is a retractable shield placed over safety seats for children up to 20 pounds. You state that the retractable shield "would be far enough away from the child's head that the child would not pitch forward enough to come in contact with it." You further state that the shield's material is a tough, flexible plastic that is transparent and has holes for breathing.

I note that you marked "confidential" on your letter. In a November 4, 1996, telephone conversation with Mr. Marvin Shaw of my staff, you stated that as long as the diagrams remain confidential, you had no objection to our placing your letter in the public docket.

By way of background information, this agency, the National Highway Traffic Safety Administration (NHTSA), has the authority to issue Federal motor vehicle safety standards for new motor vehicles and new items of motor vehicle equipment. NHTSA does not, however, approve or certify any vehicles or items of equipment. The following represents our opinion based on the information in your letter.

There is currently no FMVSS that directly applies to your product. Our standard for "child restraint systems," FMVSS No. 213, applies to "any device except Type I or Type II seat belts, designed for use in a motor vehicle or aircraft to restrain, seat, or position children who weigh 50 pounds or less." (S4 of FMVSS No. 213) The standard does not apply to child seat accessories that are sold separately from the child seats, such as an aftermarket retractable shield.

While no Federal safety standard applies to the retractable shield, your product is considered to be an item of motor vehicle equipment. As a manufacturer of motor vehicle equipment, you are subject to the requirements of 49 United States Code 30118-30121 concerning the recall and remedy of products with safety related defects. I have enclosed an information sheet that briefly describes those and other manufacturer responsibilities. In the event that you or NHTSA determines that your product contains a safety-related defect, you would be responsible for notifying purchasers of the defective equipment and remedying the problem free of charge.

In addition, a motor vehicle manufacturer, distributor, dealer or repair business is prohibited by our statute from installing the retractable shield if the installation "makes inoperative" compliance with any safety standard, such as FMVSS No. 213.

You should be aware that some elements of design incorporated in child restraint systems in compliance with FMVSS No. 213 might be affected by adding your retractable shield. In particular, under section S5.7, all child restraint systems are required to incorporate the flammability resistance requirements of S4 of FMVSS No. 302. Also, child restraint systems recommended for use by children weighing less than 20 pounds must comply with paragraph S5.2.3.2 of FMVSS No. 213. That paragraph requires that each child restraint surface contactable by the child dummy's head during the crash test shall be covered with slow recovery energy absorbing materials with specified characteristics. This requirement ensures that children riding in these child restraints will not suffer unnecessary head injuries during crashes. If the installation of your retractable shield by a manufacturer, distributor, dealer, or repair business would impair features provided in compliance with these or other provisions of the standard, then the entities would make inoperative a Federally required element of design in violation of the statute.

The "make inoperative" prohibition does not apply to individual owners who install equipment on their own child restraints systems. Thus, 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 owners not to degrade the safety of their child restraints.

I hope this information is helpful. If you have any other questions, please feel free to contact Marvin Shaw of my staff at this address or by phone at (202) 366-2992.

Sincerely,

John Womack

Acting Chief Counsel

Enclosure

ref:213

d:12/2/96

ID: 12632.wkm

Mr. Tom Burkhardt
Dynastar International
25133 Anza Drive, Suite A
Santa Clarita, CA 91355

Dear Mr. Burkhardt:

This responds to your telefax dated October 21, 1996, addressed to Walter Myers of my staff and your telephone conversations with Mr. Myers on October 18 and 23, 1996. You stated that your company received a shipment of passenger car tires that were not marked with the Uniform Tire Quality Grading Standards (UTQGS) ratings and asked that this agency waive "the stamping of UTGQ (sic)." Please be advised that this agency, the National Highway Traffic Safety Administration, has no authority to waive the UTQGS requirements.

You stated that on October 2, 1996 your company received about 5,000 Michelin MXF tires of two different sizes that you think were produced in Thailand, and that "this is the first time that this tire has been imported." In response to your October 18 telephone conversation, Mr. Myers telefaxed to you copies of four previous interpretation letters issued by this office explaining the various UTQGS labeling requirements and their exceptions. In your October 23 conversation, you told Mr. Myers that you had read the letters and asked if we had any advice for you.

The UTQGS, found at 49 Code of Federal Regulations, 575.104 (copy enclosed), require that all new tires sold in the United States be graded for treadwear, traction, and temperature resistance, and that those grades or ratings be marked on the sidewall of each tire (575.104(d)(1)(i)(A)).

In addition, the ratings for each individual tire must be shown and explained on labels attached to the tread of each tire so as not to be easily removable ((d)(1)(i)(B)(2)). There are, however, two exceptions to the above requirements:

1. Tires of a new tire line need not have the UTQGS ratings marked on the sidewalls if the tires were manufactured within the first six months of production of the tire line ((d)(1)(i)(A)). The tread label required by (d)(1)(i)(B)(2) is still required, however.
2. Limited production tires are excluded from all UTQGS requirements. In order to qualify as limited production tires, a tire must meet all the following criteria (575.104(c)(2)):
   1. Total annual domestic production or importation into the United States of tires of the same design and size by either the manufacturer or brand name owner may not exceed 15,000 tires;
   2. The tire's size must not have been listed as a vehicle manufacturer's recommended tire size designation for new motor vehicles domestically produced or imported in quantities greater than 10,000 during the year prior to the tire's manufacture; and
   3. The total annual domestic production or importation by the tire's manufacturer or brand name owner may not exceed 35,000 tires.

Since Michelin is a major domestic producer and importer of tires, it is unlikely that the tires in question could qualify as limited production tires (exception b). If they qualify as tires of a new tire line, however, you are free to prepare and attach tread labels to the tires in accordance with (d)(1)(i)(B)(2) and market them as described in exception a. If they do not meet either exception a or b, you may not market the tires in the United States until they comply with the UTQGS. Finally, if you are unable to bring these tires into compliance with the UTQGS, you are free to export them if the tires and the outside of their container are labeled for export (49 U.S. Code 30112(b)(3)) (copy enclosed).

One further matter. The tires must meet the strength, performance, and labeling requirements of Federal motor vehicle safety standard No. 109, New pneumatic tires (copy enclosed), and the letters "DOT" must be marked on the tire sidewalls to indicate such compliance. Like the UTQGS, those requirements are also prerequisite to the sale of any passenger car tires in the United States.

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

Sincerely,

John Womack
Acting Chief Counsel
Enclosures
ref:575
d:11/6/96

ID: 12633.WKM

Mr. D. F. Paine
Quality Assurance Coordinator
Dunlop International Technology Ltd.
Post Office Box 504
Erdington, Birmingham B24 9QH, England

Dear Mr. Paine:

Your letter telefaxed on October 2, 1996 to Ms. Jeanette Greenfield of this agency has been referred to this office for reply.

You stated that one of Dunlop's overseas divisions, Dunlop Zambia Ltd., although not intending to export tires to the United States, wishes to "DOT mark its Light and Heavy Truck tire ranges to satisfy a local commercial requirement." You asked whether a manufacturer's identification mark can be assigned to Dunlop Zambia without a resident agent being appointed in the United States or prior to a resident agent being appointed. The answer is no.

Title 49, Code of Federal Regulations (CFR), Part 574, Tire Identification and Recordkeeping (copy enclosed), requires at section 574.5 that a tire manaufacturer place a tire identification number on the sidewall of each tire it manufactures. The purpose of this requirement is to facilitate the recall of tires that are found to be in noncompliance with applicable Federal motor vehicle safety standards or that are found to contain a safety defect. The first group of digits in the tire identification number is the manufacturer's identification mark or code, issued in accordance with section 574.6. That code is intended to provide both the National Highway Traffic Safety Administration (NHTSA) and the manufacturer the ability to identify the plant in which the defective tires were produced. Thus, issuance of a manufacturer's identification code to one that does not intend to market tires in the United States would not serve the purpose of the tire identification number.

You mentioned in your letter that you have a copy of 49 CFR Part 551, which in pertinent part requires each foreign producer of motor vehicles and motor vehicle equipment to appoint a resident agent in the United States for the service of legal process. To enforce that provision, it has long been NHTSA policy not to assign a manufacturer's identification mark unless the manufacturer has appointed a resident agent in the United States.

For the reasons stated above, NHTSA cannot at this time assign a manufacturer's identification code to Dunlop Zambia. If in the future Dunlop Zambia desires to export tires to the United States and files a valid designation of a resident agent, NHTSA will assign a manufacturer's identification code at that time.

I hope this information is helpful to you. Should you have any further questions or require any additional information, please feel free to contact Walter Myers of my staff at this address or at (202) 366-2992, or fax (202) 366-3820.

Sincerely,

John Womack

Acting Chief Counsel

Enclosure

Ref:574

d:12/2/96

ID: 12654.ztv

Mr. Ernst Waldeck
Vice President
FER North America, Inc.
P.O. Box 2229
Birmingham, MI 48012-2229

Dear Mr. Waldeck:

This is in reply to your FAX of October 15, 1996, to Rich Van Iderstine of this agency requesting approval of a design proposal to place a combination front side marker lamp and reflector behind the front wheel house.

As you noted, Table IV of Motor Vehicle Safety Standard No. 108 requires front side marker lamps and reflectors to be located "as far to the front as practicable." The center of the combination device shown on the drawing you enclosed is 1222.6 mm from the front of the vehicle. In this location, it is behind the front wheel house. We surmise that this location is otherwise used for a turn signal repeater lamp in markets other than the United States.

As a general rule, it is initially the vehicle manufacturer that determines whether a specific location is "practicable" for its vehicle design. The agency will not contest that determination unless it is clearly erroneous. In this instance, we believe that it would be clearly erroneous to place the combination device at the location indicated. In that location, the combination device would not fulfill its intended function of indicating the forward edge of the vehicle. There appears to be ample room in front of the wheel house for location of the combination device so that it might more nearly fulfill that function. Unless the manufacturer can demonstrate convincingly that a location in front of the wheel house is not practicable, we would regard a location behind the wheel house as noncompliant with the requirements of Standard No. 108.

If you have any questions, you may refer them to Taylor Vinson of this Office (202-366-5263).

Sincerely,

John Womack

Acting Chief Counsel

ref:108

d:11/14/96

ID: 12666.ztv

Mr. Charles H. Fuller
President
Graphiclite Systems Inc.
P.O. Box 437
Tallmadge, Ohio 44278

Dear Mr. Fuller:

This is in reply to your letter of October 24, 1996, asking several questions about the relationship of your product, the Graphiclite, to Federal Motor Vehicle Safety Standard No. 108.

You have told us that the Graphiclite, a 20 watt halogen light, "is being designed to be mounted on the sides, near the bottom, of trailers and trucks to illuminate the advertising graphics which are becoming more and more popular." You also enclosed a copy of an interpretative letter of this Office, dated August 19, 1988, on an earlier version of the product.

There are no affirmative requirements of Standard No. 108 with which additional and optional motor vehicle lighting equipment must comply. This equipment, if offered as original equipment, is subject only to the prohibition of paragraph S5.1.3 that it must not impair the effectiveness of the lighting equipment that the standard requires to be installed. This means that the answer to your questions 1,2,4, and 5 is no. Your question 3 is whether a demonstration of Graphiclite will be required in accordance with S5.1.3. The answer again is no. It is the responsibility of the truck or trailer manufacturer in certifying that its vehicles comply with all applicable Federal motor vehicle safety standards to make the impairment determination. Unless that determination is clearly erroneous, the agency will not question it. In directing the light from the lamp toward the vehicle side, we would caution against placement of the lamp so that the beam falls upon any intermediate side marker lamp and reflector (required on vehicles whose overall length is 30 feet or greater).

The fact that original auxiliary lighting equipment may be acceptable under S5.1.3 does not preempt a state from prohibiting it under its own lighting regulations. We are unable to advise you on state laws, and suggest that you contact the Department of Motor Vehicles in those states where you anticipate marketing Graphiclite.

If you have any further questions, please telephone Taylor Vinson (202-366-5263).

Sincerely,

John Womack

Acting Chief Counsel

ref:108

d:12/11/96