ID: nht93-2.2

DATE: March 1, 1993

FROM: Peter Drymalski -- Investigator, Montgomery County Government, Office of Consumer Affairs

TO: John Womack -- Acting Chief Counsel, NHTSA

TITLE: Application of 15 U.S.C. Section 1403 to the "Cannibalization" of Unsold New Cars for Repair Parts

ATTACHMT: Attached to letter dated 5/3/94 from John Womack to Peter Drymalski (A42; Part 567; VSA S108(a)(2)(A))

TEXT:

I am writing to request your office's assistance on an issue that has been brought to our office and which may involve Federal laws enforced by your agency.

A local new car dealer recently sold two 1993-model year vehicles. Shortly after the sale, both vehicles were returned for power steering pump failures. The dealer and the distributor had no power steering pumps in stock and had to order them from Japan. This resulted in a lengthy delay in completing the repairs, so much so, in fact, that the 30- day out-of-service deadline of the Maryland Lemon Law (Commercial Law Article, Section 14-1502(d)(2) was about to come into play.

According to the dealer, the distributor advised the dealer to remove two power steering pumps from other, unsold, 1993 models and install them on the two vehicles awaiting parts. The dealer refused, believing that this was illegal. Fortunately for the distributor, the parts then arrived and the repairs could be completed within the 30-day deadline. Nonetheless, the distributor has apparently insisted that the dealer prove its claim that the cannibalization of unsold vehicles is illegal.

I do not know of any Maryland law that prohibits this, although our laws would probably require the dealer to disclose the repairs when it sells the cannibalized cars as "new" after they're repaired.

However, such cannibalization may affect the cannibalized cars' certifications under 15 U.S.C. 1403 and 49 C.F.R. Part 567, or under other laws. Is such cannibalization allowed and, if so, on what conditions?

I will appreciate your office's review of and assistance on this matter.

Thank you very much.

ID: nht93-2.20

DATE: March 18, 1993

FROM: Jeffery A. Kester -- Product Development, Green Wheels Electric Car Company

TO: John Womack -- Acting Chief Consul, NHTSA

TITLE: Re: Electric Vehicle Conversions and the FMVSS

ATTACHMT: Attached to letter dated 4-21-93 from John Womack to Jeffery A. Kester (A41; 108(a)(2)(A))

TEXT: I have recently spent a few enjoyable afternoons on the phone with various members of the DOT, and now I find my path leads to you. The recommendation to write to you comes from Z. Taylor Vinson and he believes you may be the one to clarify my current dilemma.

I am a principal partner in a company that intends to produce electric vehicles (EVs) for retail sale. We are not building our EVs from scratch. Instead, we intend to perform conversions on existing (used) internal combustion engine vehicles (ICEVs). We are currently converting a 1981 Volkswagen Rabbit and intend to convert VWs of similar (1975-1984) vintage. We plan to expand our vehicle conversion operations to include 1985 and newer VW models, but we have no intention of converting new vehicles. Therefore, according to section 108, (b)(1) of the National Traffic and Motor Vehicle Safety Act (2/92 rev.), I am not bound to comply with the FMVSS and have no reason to petition for exemption from any standards in the FMVSS.

That's the rub. NTMVSA section 108(a)(2)(A) says in simple terms that I cannot "render inoperative ... any device or element of design ..." unless I believe it will not be used during the time it is rendered inoperative. I understand the purpose of this subsection, (I was in auto repair/restoration for over 12 years) but I believe it takes on new aspects when applied to rendering inoperative "devices or elements of design" on a permanent basis. The vehicle will obviously be used during the time such devices or elements of design no longer exist.

Have I found the fabled Catch 22?--I cannot receive exemptions from the FMVSS because I intend to convert cars subsequent to their first purchase (section 108 (b)(1)) so those standards do not apply, yet it appears that I will be in gross violation of section 108(a)(2)(A). I may have found a way to satisfy the needs of both sections, but it entails some creative interpretation of section 108(a)(2)(A).

The interpretation is as follows: I should be able to render inoperative devices or elements of design without violating the FMVSS, because I believe that said inoperative devices or elements of design will not compromise vehicle compliance to applicable Federal motor vehicle safety standards during the time said motor vehicle is in operation. The paramount wording of section 108(a)(2)(A) is "... applicable Federal motor vehicle safety standards ..." I submit the example of the ICEV fuel system to which many FMVSS apply. Since that fuel system will mo longer exist on an EV conversion, there will be no applicable Federal motor vehicle safety standards in regard to the EV fuel system, and I will not have rendered inoperative a device or element of design of an applicable FMVSS.

The other operative phrase of section 108(a)(2)(A) is "... unless such ... business reasonably believes ..." I submit that I must have some basis for my belief in regard to the safety of the vehicle with devices or elements of design that I have rendered inoperative, and that basis must come from the FMVSS.

That brings me to you. I require something more than the right to tell the local Registry of Motor Vehicles (RMV), and any prospective customers, that my vehicles comply to the FMVSS simply because I believe they do and that the FMVSS does not really apply anyway because I sell used vehicles. I hereby request your action on the following matters:

1) That you submit to me in writing your recommendation of the viability of my interpretation of section 108(a)(2)(A) and (b)(1) of the NTMVSA.

2) That, if you believe my interpretation to be viable, you submit a letter stating such that I may distribute to prospective clients and/or the RMV to aid me in convincing them of the safety of converted EVs.

3) That you submit to me in writing, your recommendations for any further action in regard to compliance with section 108(a)(2)(A).

4) That you submit to me in writing, any information or source for information concerning petition for exemption from section 108(a)(2)(A) under section 108 (a)(2)(B) if applicable.

5) That you submit to me in writing, any information or source for information concerning the status of any report, study or investigation resulting from section 108(b)(1) concerning the establishment of uniform Federal motor vehicle safety standards applicable to all used motor vehicles.

The reason for all of this is very simple. I want to do the right thing in regard to motor vehicle safety. The fact that used cars that I convert are not required to be in compliance with the FMVSS, will not make those vehicles safe. I am attempting to design safe, reliable vehicles that I can produce on a small-scale production basis. As one of the few professional mechanics involved in the EV industry (a somewhat un-nerving fact that I have discovered over thelast year), I am very concerned that other companies may not be aware of what they are doing to the structural integrity of an ICEV when they convert it to an EV. Many of these small companies have had no contact whatsoever with DOT, or they simply opt to offer "conversion kits" which release them from any safety liability. There is currently an explosion in the small-scale EV industry, with many companies claiming to convert any ICEV to an EV. This is definitely good but it is happening faster than safety regulations are being made. Public acceptance of these vehicles is promising but so far, has been full of skepticism about safety and reliability. I believe that without some kind of Federal regulatory intervention, the poor performance and possibly disastrous outcome in the event of an EV crash, will lead to the abandonment of the modicum of public interest now being express in the EV industry.

The general opinion of the public and press is that EVs are interesting, but will not represent a viable transportation alternative until better batteries

are in production and available at a reasonable price. I am confident that better batteries will be available in the next few years. I am concerned that, their will be no standards in place to regulate how those batteries are integrated into the automobile industry. We are faced with the problem of EV safety right now, and I believe that some action must be taken now to remedy the situation.

Thank you very much for taking the time to read this, if you have any, questions or comments about this letter or anything to do with EVs, please do not hesitate to write or call. I hope I hear from you soon.

ID: nht93-2.21

DATE: March 19, 1993

FROM: Connie Hafenstine -- Chief, Bureau of Personnel Services, Kansas Department of Transportation; Larry Bluthardt -- Director of Pupil Transportation, Kansas Department of Transportation

TO: Patricia Breslin -- Director, Office of Vehicle Safety Standards

TITLE: None

ATTACHMT: Attached to letter dated 4/22/93 from John Womack to Larry Bluthardt (A41; Std. 124)

TEXT: I'm in receipt of a letter from one our Contract Managers concerning the use of built-up foot operated throttle controls. The following questions were asked:

1. Is there any violation of the FMCSR'S in conjunction with the FMVSS concerning the modification of a school bus foot operated throttle control or other equipment modifications that may relate to the physical accommodation of a commercially licensed driver to perform his or her duties behind the wheel?

2. If we can modify the foot operated throttle control to the vehicle (school bus), does the modification require specific registration, certification or inspection prior to the installation?

FOR EXAMPLE: Can the modification be made and installed locally, or should the modification be purchased and installed by a certified commercial vendor i.e., manufacturer.

Thank you for your assistance. We await your reply.

ID: nht93-2.22

DATE: March 21, 1993

FROM: Christopher Banner

TO: John Wolmack (Womack) -- NHTSA

TITLE: None

ATTACHMT: Attached to letter dated 7-9-93 from John Womack to Christopher Banner (A41; Part 568; Part 571.7(e))

TEXT:

I am looking into the possibility of producing a line of luxury cars and limousines based on an existing chassis but having a body of my own making. I am sure that the Department of Transportation has all sorts of safety and other regulations which would cover such a product. Representative Jim Slattery of Kansas recommended you as a source of information on this subject. Could you either send me relevant material, or direct me to a source? Here in Manhattan, we have a government documents section in the Kansas State University Library. Perhaps I could find the references of interest in it, if I knew what they were.

ID: nht93-2.23

DATE: March 23, 1993

FROM: John Womack -- Acting Chief Counsel, NHTSA

TO: James L. Vasko

TITLE: None

ATTACHMT: Attached to letter dated 11-1-89 from Stephen P. Wood to John K. Moody; Also attached to letter dated 2-17-93 from James L. Vasko to John Womack (OCC 8337)

TEXT: Thank your for your letter of February 17, 1993, replying to my letter of February 11 with respect to your invention, the "Front Brake Light System."

Although you did not address my assumption that your invention flashes both front signal lamps when the brake pedal is applied, it would appear from your latest letter that the system activates the front signal lamps in a steady-burning state, with a flashing turn signal overriding the steady-burning front stop signal when the turn signal is activated. We derive this from your statement that a driver pulling into traffic "would see the turn signal and the brake light showing that the vehicle was braking and turning."

This agency administers the National Traffic and Motor Vehicle Safety Act, under which we issue the Federal motor vehicle safety standards. Federal Motor Vehicle Safety Standard No. 108 LAMPS, REFLECTIVE DEVICES, AND ASSOCIATED EQUIPMENT specifies the requirements for lamps and reflectors that are used as original equipment on motor vehicles. There is no restriction under the Safety Act or Standard No. 108 as to the manufacture and sale of your invention. Equipment that is not specified in the standard, such as the "Front Brake Light System," may be installed by either the vehicle manufacturer or the dealer, provided that the equipment does not impair the effectiveness of the lighting equipment that the standard requires. Thus the question is whether a front turn signal would be impaired by the illuminated presence of its counterpart in a steady-burning mode on the other side of the vehicle. The decision is initially to be made by the installer. If the decision appears clearly erroneous, NHTSA will inform the appropriate party who made the decision. We note that the possibility of impairment exists if an observer is momentarily confused as to the message that the vehicle driver is sending, and that such momentary confusion can exist when novel lighting devices are used on motor vehicles, or when familiar lamps are used in unfamiliar ways.

The legality of the "Front Brake Light System" in the aftermarket, when a vehicle has been sold and is in use, is determinable under the Safety Act itself. The Act prohibits a manufacturer, dealer, distributor, or motor vehicle repair business from "knowingly rendering inoperative, in whole or part, any device or element of design installed on or in a motor vehicle ... in compliance with a Federal motor vehicle safety standard ...." We tend to equate impairment with partial inoperability. Thus, if your invention, as original equipment, impairs the effectiveness of the front turn signal it would also, as aftermarket equipment, render the turn signal partially inoperative within the meaning of our interpretation of the Safety Act. However, the Safety Act does not prohibit a vehicle owner from personally-modifying his or her vehicle in any manner.

Optional lighting equipment such as your invention is also subject to the laws of the States in which the equipment will be used. We are unable to advise you on State laws, and recommend that you contact, for an opinion, the American Association of Motor Vehicle Administrators, 4600 Wilson Boulevard, Arlington, Va. 22203. We have previously given an interpretation with respect to a front stop light indicator system, and I enclose for your information a copy of our letter of November 1, 1989, to John K. Moody.

ID: nht93-2.24

DATE: March 23, 1993

FROM: John Womack -- Acting Chief Counsel, NHTSA

TO: L. J. Sharman

TITLE: None

ATTACHMT: Attached to letter dated 11-18-92 from L. J. Sharman to NHTSA, Department of Transportation (OCC 8089)

TEXT: This responds to your letter of November 18, 1992, regarding the test procedure in Standard No. 302, FLAMMABILITY OF INTERIOR MATERIALS. Your questions and the answer to each follows.

Question 1.

MVSS-302, in Section S5.3(e), states that the timing for each specimen be started when the flame from the burning specimen reaches a point 1.5 inches from the open end of the specimen and, in section S5.3(f), is stopped when the flame progresses to a point 1.5 inches from the clamped end of the specimen. Further, the Standard, in Section S5.2.2, states the specimen is oriented so that the surface closest to the occupant compartment air space faces downward on the test frame. The question that has been raised is whether the timing is started and stopped when the flame reaches the designated points on the surface of the specimen closest to the occupant compartment air space (the surface facing down during the test), or when the flame reaches the designated points on the surface of the specimen facing away from the occupant compartment air space (the surface facing up during the test).

You suggest that the timing should be started and stopped when the flame reaches the designated points on the surface facing up during the test. As explained below, NHTSA disagrees.

Section S4.3(a) of Standard No. 302 states: When tested in accordance with S5, material described in S4.1 and S4.2 shall not burn, nor transmit a flame front across its surface, at a rate of more than 4 inches per minute. However, the requirement concerning transmission of a flame front shall not apply to a surface created by the cutting of a test specimen for purposes of testing pursuant to S5.

Any surface not created by the cutting of the test specimen, including the surface oriented downward pursuant to S5.2.2, is required to comply with the burn-rate requirement of S4.3(a). Surfaces created by the cutting of the test specimen were excluded from this requirement in a final rule published on March 31, 1975 (40 FR 14318). The reasons for the exclusion were stated in the notice as follows:

(C)utting certain materials to the prescribed thickness produces a tufted surface upon which a flame front may be propagated at a faster rate than it would be upon the surface of the material before cutting, thereby creating an artificial test condition.

Because of this exclusion, the surface facing upward pursuant to S5.2.2 is not required to comply with the burn-rate requirement of S4.3(a) if the surface was

created by cutting the material to be tested to the prescribed thickness.

In addition, I note that S5.3(b) requires the test specimen to be placed in the center of the cabinet. Therefore, it should not be any more difficult to observe the progress of the flame on the surface facing down than the surface facing up.

Question 2.

MVSS-302, in Section S5.3(f), states that the flame progression be measured to a point 1.5 inches from the clamped end of the specimen under test. The standard does not specify actions to be taken after timing has stopped. Some laboratories put out the flame using a small amount of water from a spray bottle. The question has been raised as to whether using a small amount of water from a spray bottle to put out the flame is an acceptable procedure.

You are correct that Standard No. 302 does not specify a procedure to extinguish the flame after the test. Therefore, spraying a specimen with a small amount of water to extinguish the flame would be acceptable.

However, please bear in mind that S5.1.2 states

Prior to testing, each specimen is conditioned for 24 hours at a temperature of 70 degrees F. and a relative humidity of 50 percent, and the test is conducted under those ambient conditions.

After spraying a specimen in the test cabinet, it would be necessary to ensure that the ambient conditions in the cabinet conform to those specified in S5.1.2 before conducting any additional tests.

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

ID: nht93-2.25

DATE: March 24, 1993

FROM: John Womack -- Acting Chief Counsel, NHTSA

TO: A. L. Bragg -- Laboratory Manager, Truck-Lite Co., Inc.

TITLE: None

ATTACHMT: Attached to letter dated 2-22-93 from A. L. Bragg to Paul Jackson Rice (OCC 8375); Also attached to letter dated 12-30-92 from Paul Jackson Rice to T. Kouchi (A40; Std. 108); Also attached to letter dated 11-23-92 from T. Kouchi to Paul Jackson Rice (OCC 8081)

TEXT: We have received your letter of February 22, 1993, to Paul Jackson Rice, the former Chief Counsel of this agency, with respect to his letter of December 30, 1992, to Stanley Electric Col. Ltd. In your opinion, the letter, which interpreted Safety Standard No. 108 as it applied to light-emitting diodes (LEDs), raises certain problems.

You are correct that NHTSA equates individual LEDs with lighted sections. Currently, this is the only way in which NHTSA can relate LEDs to Standard No. 108, a standard based upon lamps with incandescent light sources. For this reason, NHTSA has begun to consider possible amendments to Standard No. 108 that would recognize, as the SAE has done with J1889, the advent of lamps with LED light sources. Should NHTSA then publish a notice of proposed rulemaking on this subject, we would welcome your further comments.

ID: nht93-2.26

DATE: March 24, 1993

FROM: John Womack -- Acting Chief Counsel, NHTSA

TO: Dale E. Dawkins -- Director, Vehicle Compliance and Safety Affairs, Chrysler Corporation

TITLE: None

ATTACHMT: Attached to letter dated 3-9-93 from D. E. Dawkins to John Womack

TEXT: We have received your letter of March 9, 1993, responding to mine of February 18.

On December 16, 1992, you informed the agency of the intent of Chrysler Corporation to manufacture 10 Chesapeake Consortium Electric Vehicles (CCEV) under NHTSA Temporary Exemption 92-1.

According to your December letter, these vehicles are "almost identical" to the TEVans for which the agency granted the temporary exemption, except that they will utilize an AC electrical motor, while the ones which were the subject of the exemption petition will be powered by a DC electrical motor. You seek no broader exemption as the combined volumes of CCEVs and TEVans "will not exceed the maximum units of the petition that was granted."

It appeared that you wished confirmation from NHTSA that the CCEV vehicles are covered by Temporary Exemption 92-1. As I informed you on February 18, in order for the agency to provide this confirmation, we must determine that CCEV and TEVans are essentially the same vehicle and that none of the minor differences between the vehicles affects the findings made by the agency in issuing the TEVan exemption. In granting Chrysler's exemption petition covering three standards, the Administrator first found that the exemption would facilitate the development and field evaluation of a low emission motor vehicle. We do not believe that the change in electrical propulsion from DC to AC affects this finding. The Administrator next found that an exemption from the three standards would not unduly degrade the safety of the vehicle. You stated that "(b)ased on our engineering judgement, there is no significant difference between the CCEV or TEVan in terms of overall vehicle safety." While you may have used the word "significant" in an excess of caution, it implied that there were differences between CCEV and TEVan and that there was a difference in overall vehicle safety between the CCEV and TEVan, although not an important one from Chrysler's viewpoint. Therefore, we asked you to identify the differences between the vehicles, and of the differences, if any, in the safety between the CCEVs and TEVans that may have led to Chrysler's engineering conclusion.

Your letter of March 9 informs us that there are "no discernable safety differences" between TEVans and CCEVs. It further informs us, as before, that the only difference between the two programs of electric vehicle development is the propulsion motors and transmissions. Therefore, it appears that two vehicles are essentially the same in design and in terms of the level of safety provided, and that it is appropriate to consider the CCEVs covered by the TEVan exemption.

We appreciate your calling our attention to this matter.

ID: nht93-2.27

DATE: March 25, 1993

FROM: Brett J. Higgins

TO: Paul Jackson Rice -- Chief Council's Office, NHTSA

TITLE: None

ATTACHMT: Attached to letter dated 4-26-93 from John Womack to Brett J. Higgins (Std. 208)

TEXT: I am interested in selling a special clamp that is applied to the shoulder strap of a seatbelt as an after-market item. The purpose of this clamp is to allow for slack in the shoulder harness section of a seatbelt thus allowing it to be worn more comfortably.

My first concern has been to find out if this item would be legal to sell and use in the United States. I contacted the Department of Transportation in Washington D.C. and spoke with Mr. Mark Levine in the seatbelt division. He informed me that to his knowledge there are no legal restrictions on selling such an item. He did, however, recommend that I contact you and ask for your advice in this matter.

If you have any information that might be helpful to me, I would greatly appreciate it if you would contact me by letter. If you would prefer to contact me by telephone, I can be reached at (714) 963-3721,

I thank you in advance for any assistance you may offer.

ID: nht93-2.28

DATE: March 25, 1993

FROM: Jose M. Gonzalez -- Engineering Manager, Kustom Fit

TO: Office of Chief Council -- NHTSA

COPYEE: Ed Jetner -- NHTSA 208 Engineer; Ron Belk -- KF President; Bob Barras -- KF of Ohio

TITLE: Re: Baseline Sled Testing Evaluation

ATTACHMT: Attached to letter dated 5-6-93 from John Womack to Jose M. Gonzalez (A41; Std. 208; VSA 108(b)(2)

TEXT: We are a manufacturer of seating products for the recreation industry. We have been in business since 1956. We do follow and test our products for your established standards. Since early 1991, we began testing our products dynamically using HIGE Sled Testing laboratories. We have been successfully obtaining good results that are under 20% or more than the maximum requirement criteria with one exception, the General Motors G Van. We have done 4 tests using Hybrid III dummies and we have improved the results with every test. However, we can't achieve the same levels of confidence that we have achieved with other vehicles. We would like to hear your opinion for the following approach:

We would perform two tests: The first being a baseline HIGE sled test using all OEM hardware and seats and the second one with OEM hardware and our seats. The results would then be compared as follows:

If the results of the test using our seats are equal or better than those obtained values with the OEM seats and hardware, does this test prove that our seats are safe to use instead of OEM? Can these results and procedures be acceptable as do diligent and can our seats then be certified for use in these vehicles regarding FMVSS 208?

Your response to this request will be highly appreciated.