ID: Hopkins.1

Mr. Bruce A. Hopkins
Vice President, Standards and Education
Recreation Vehicle Industry Association (RVIA)
1896 Preston White Drive
P.O. Box 2999
Reston, VA 20195-0999

Dear Mr. Hopkins:

This is in response to your letter of October 21, 2003, in which you requested clarification of several issues under Federal Motor Vehicle Safety Standard (FMVSS) No. 110, Tire Selection and Rims, as amended by a final rule published on November 18, 2002, (67 FR 69600). Your questions involved actions that your final stage manufacturer members must take to meet the requirements of the regulation, once the revisions become effective on September 1, 2004. [1] Specifically, you asked about the content and placement of vehicle placards, listing of information related to spare tires, and reporting of seating capacity.

As you are aware, the National Highway Traffic Safety Administration (NHTSA) is in the process of responding to petitions for reconsideration of the November 18, 2002, final rule, and we expect to issue our response shortly. We note that RVIA itself submitted a petition to the agency on this rulemaking. Our review suggests that the issues raised in your most recent letter are already before the agency in the context of the petitions for reconsideration, and we believe that the response will clarify these matters and will allow manufacturers sufficient time to assure compliance with applicable requirements.

Should you have any remaining or additional questions once the response to the petitions for reconsideration is published, please feel free to submit them to the agency. If you have further questions in the interim, you may contact Mr. George Feygin of my staff at (202) 366-2992.

Sincerely,

Jacqueline Glassman
Chief Counsel

ref:110
d.1/21/04





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[1] 68 FR 33655 (June 5, 2003,) (final rule; response in part to petitions for reconsideration; delay of effective date).

ID: Huser.1

Mr. Ken Huser
Eldorado National, Kansas
1655 Wall Street
Salina, KS 67401

Dear Mr. Huser:

This responds to your recent e-mail to the National Highway Traffic Safety Administration (NHTSA), in which you ask whether our regulations include requirements for the activation (illumination) of clearance, identification, and side marker lamps on vehicles of 80 inches or more in overall width. Your correspondence stated that you are seeking confirmation of this point because a customer is requesting that you modify a vehicle equipped with front clearance lamps to provide a switch that would allow the operator to turn off those lamps. The answer to your questions is no, although other Federal or State laws may apply in this situation.

By way of background, NHTSA is authorized to issue Federal motor vehicle safety standards (FMVSSs) that set performance requirements for new motor vehicles and items of motor vehicle equipment. It is the responsibility of manufacturers to certify that their products conform to all applicable safety standards before they can be offered for sale (see 49 CFR Part 571). After the first sale of the vehicle, manufacturers, distributors, dealers, and repair businesses are prohibited from "knowingly making inoperative" any device or element of design installed on or in a motor vehicle in compliance with an applicable standard. 49 U.S.C. 30122.

The requirements for lighting equipment are contained in FMVSS No. 108, Lamps, Reflective Devices, and Associated Equipment. As you point out in your e-mail, paragraph S5.5.7 of the standard sets forth activation (illumination) requirements for certain lamps on passenger cars, motorcycles, and on multipurpose passenger vehicles, trucks, and buses less than 80 inches in overall width (e.g., when the parking lamps are activated, the taillamps, license plate lamps, and side marker lamps shall also be activated). It is also correct that, in certain cases, the standard specifies activation requirements for certain lamps on all vehicles, such as paragraph S5.5.3, which provides that the taillamps on each vehicle shall be activated when the headlamps are activated in a steady-burning state. However, the standard contains no similar requirements for any electrical wiring or switching relationship between the clearance, identification, and side marker lamps on vehicles of 80 inches or more in overall width, and any other required lamps.

However, I would note that other authorities with jurisdiction over vehicles operational safety may have addressed this issue, so you may wish to make further inquiries before undertaking modifications to the vehicle in question. Specifically, the Departments Federal Motor Carrier Safety Administration (FMCSA) has jurisdiction over interstate motor carriers operating in the United States. You may wish to contact FMCSA at (202) 366-4009 to obtain further information regarding any FMCSA regulations dealing with vehicle operating requirements related to lighting.

In addition, States have the authority to regulate the use and licensing of vehicles operating within their jurisdictions. Therefore, you may wish to check with the Department of Motor Vehicles in any State where the vehicle will be used regarding any such requirements.

I hope you find this information useful. If you have further questions, please feel free to contact Eric Stas of my staff at this address or by telephone at (202) 366-2992.

Sincerely,

Jacqueline Glassman
Chief Counsel

ref:108
d.10/6/04

ID: Hyodo.B-3

Mr. Kiminori Hyodo
Deputy General Manager, Regulations & Certification
Koito Manufacturing Co., Ltd.
4-8-3, Takanawa
Minato-ku Tokyo
Japan




Dear Mr. Hyodo:

This responds to your letter, in which you sought clarification under Federal Motor Vehicle Safety Standard (FMVSS) No. 108, Lamps, Reflective Devices, and Associated Equipment, as to the location of the axis of reference for a headlamp that incorporates a bending light function. Specifically, you asked about the location of the axis of reference for a bending light mechanism where a portion of the nominal beam pattern is actively redirected to provide illumination in a turn. The issues raised by your letter are addressed below.

By way of background, the National Highway Traffic Safety Administration (NHTSA) is authorized to issue FMVSSs that set performance requirements for new motor vehicles and items of motor vehicle equipment. FMVSS No. 108 sets forth the requirements for both original equipment and aftermarket lamps, reflective devices, and associated equipment for use on motor vehicles covered under the standard. NHTSA does not provide approval of motor vehicles or motor vehicle equipment. Instead, it is the responsibility of manufacturers to self-certify that their products conform to all applicable safety standards that are in effect on the date of manufacture (see 49 U.S.C. 30115 and 49 CFR Part 567, Certification).

Regarding the requirements for a headlamp with a bending light function, this topic was addressed in a Request for Comments published in the Federal Register on February 12, 200. (see 68 FR 7101). In that document, we explained that under FMVSS No. 108, "the bending light performance (by automatically reaiming the lamp) is not prohibited because the Standard does not specifically address the initial or subsequent aim of a headlamp in a headlighting system.. 68 FR at 7102. We noted that in a July 21, 1999 interpretation letter to Mr. Mark Cronmiller, VDO North America, we stated that if a "smart" headlamp system meets the static aiming hardware requirements of FMVSS No. 108, a dynamic aiming feature is permissible.

After discussing our July 1999 interpretation, we included the following paragraph in our document in the Federal Register:

We note that S5.3.1.1 of Standard No. 108 also requires that lamps and reflective devices must be installed such that their photometric requirements are met on motor vehicles and that no other part of the vehicle shall prevent that. As such, the additional hardware added to achieve AFS must not prevent headlamps, or any other required lamps, from meeting the required performance in any manner whether AFS is operating or not. Additionally, for the bending light mechanization where some of the light in the nominal beam pattern is actively redirected, the photometric requirements of the headlamp must be met regardless of active changes in the light distribution within the beam. 68 FR at 7102.

In your letter, you asked about the last sentence of the foregoing paragraph. You stated that for bending light mechanization where some of the light in the nominal beam pattern is actively redirected, "NHTSA clarified its legality that the photometric requirements must be met regardless of the active changes in the light distribution within the beam pattern . . . but did not address the location of the axis of reference for the determination of photometric compliance.. You stated that for this type of system, when the optical axis (kink) of the lower beam headlamp moves due to the swivel of an adaptive beam contributor that is utilized with a non-swiveling base beam, you must compensate the goniometer to locate the axis of reference to H = 0 degree / V = 0 degree for that determination.

Your letter stated further:

We construe that the goniometer must be compensated because the docket explicitly allows the swiveling of the beam pattern and further requires compliance to the FMVSS 108 lower beam photometric requirement in all the situations throughout the activation of the bending light function. In light of these requirements, in a system where some of the light in the nominal beam pattern is actively redirected and the optical axis (kink) moves due to the changes in the vehicles steering angles, photometry should be done in the direction where the optical axis (kink) of the headlamp is actually directed. This results in exactly the same situation as required for the category 1 bending light mechanization (i.e. swiveling of the whole beam pattern) where a lower beam headlamp meeting the photometric requirements of FMVSS 108 is allowed to be directed toward the direction of the vehicles steering. Also, the direction coincides with the drivers gaze direction when negotiating curves, which is consecutive to the original purpose of the bending light function and significant for the improvement of safety.

As part of reviewing your letter, we analyzed the paragraph in our February 2003 notice that you asked about. We note that the paragraph construed the language of S5.3.1.1 of FMVSS No. 108 as it existed at that time. Subsequently, we amended that portion of the standar. (see 69 FR 48805, 48813 (August 11, 2004)). The standard no longer includes the former language of S5.3.1.1 that "no part of the vehicle" shall prevent lamps from meeting photometric requirements. Instead, the standard now states at S5.3.2(a) that lamps and reflective devices must be installed in a location where they comply with all applicable photometric requirements and visibility requirements with all "obstructions" on the vehicle.

We note that in making this change, the agency explained that it was clarifying the sentence and moving it, without making any substantive changes. Thus, in the August 2004 notice, the agency viewed the superseded S5.3.1.1 requirement that no part of the vehicle prevent lamps from meeting photometric requirements as referring to obstructions, a more narrow view than it took in the February 2003 notice. In retrospect, and after reviewing the relevant language and comparing how the agency viewed it in the February 2003 and August 2004 notices, we believe the more narrow reading was correct.

In any event, the language of S5.3.1.1 construed in the paragraph you asked about is no longer in FMVSS No. 108. That paragraph is not a correct explanation of the standards requirements today and should be disregarded.

As to what is required for the design you asked about, and similar to the situation where the entire headlamp is reaimed, the standards photometry requirements must be met in the nominal position of the lower beam headlamp (i.e., considering the location of the axis of reference to coincide with the longitudinal axis of the vehicle).

As defined under S4 of FMVSS No. 108, "axis of reference" means "the characteristic axis of the lamp for use as the direction of reference (H=0, V=0) for angles of field for photometric measurements and for installing the lamp on the vehicle.. In the case of a visually/optically aimable headlamp, for example, the agency would orient the axis of reference through the headlamp optical axis marks. These marks are required by S7.8.5.3(f)(1) to establish the horizontal and vertical alignment of the headlamp, aiming screen, and goniometer, relative to the longitudinal axis of the vehicle. Furthermore, SAE J575 DEC88, as incorporated by reference into FMVSS No. 108, specifies that the vertical axis of the test sample be vertical and perpendicular to the longitudinal axis of the vehicle when mounted on the goniometer, and that the intersection of the H and V planes (a.k.a. axis of reference) be parallel to the longitudinal axis of the vehicle. Once the nominal aim was established, photometry testing would be conducted. FMVSS No. 108 does not require that photometric requirements be met for other axes of reference.

We note that the photometry requirements of FMVSS No. 108 are intended both to ensure adequate illumination of the roadway and overhead signs and to avoid unnecessary glare to other drivers. While, as discussed above, the standard does not include photometric test requirements for a headlamp with a bending light function other than for the nominal position of the lower beam headlamp, we encourage manufacturers to carefully consider accommodating both of these goals as they design headlamp systems incorporating this new technology.

I hope this information is helpful. If you have further questions, please feel free to contact Eric Stas of my staff at this address or by telephone at (202) 366-2992.

Sincerely,

Stephen P. Wood
Acting Chief Counsel

ref:108
d.2/10/06

ID: HYUNDAI.CRS

Mr. Robert Babcock
Manager, Government Affairs
Hyundai America Technical Center, Inc.
5075 Venture Drive
Ann Arbor, MI 48108

Dear Mr. Babcock:

This is in response to your letter of September 9, 1996, to Coleman Sachs of my staff, concerning an error in the certification labels placed on certain 1997 Hyundai Tiburons. As described in your letter, these labels contain a misspelling of the word "passenger," which appears as "passbnger" in the vehicle type classification that was inserted on the label under the vehicle certification regulations at 49 CFR 567.4(g)(7). You state that Hyundai implemented a running change to current production after it discovered this error, but that the company has no plans to institute a recall or other campaign to correct the error on vehicles already produced. The company has requested our comments if we do not agree with its decision in this matter.

Because the nature of the misspelling could cause no confusion with respect to the vehicle's classification, we agree that Hyundai is not obliged to correct the labels on vehicles already produced.

If you have any further questions concerning vehicle certification requirements, feel free to contact Mr. Sachs at 202-366-5238.

Sincerely,

John Womack

Acting Chief Counsel

ref:568

d:9/25/96

ID: hyundai.ztv

Mr. Roger Babcock
Manager, Corporate Affairs
Hyundai America Technical Center, Inc.
5075 Venture Drive
Ann Arbor, MI 48108

Dear Mr. Babcock:

This is in reply to your letter of March 19, 2003, asking for an interpretation as to whether Federal Motor Vehicle Safety Standard (FMVSS) No. 108 preempts a California statute relating to fog lamps.

You reported that "a California statute, Title 13, Section 691" states that "Foglamps shall be mounted so the inner edge of the lens retaining ring is no closer than 10 cm (4 in.) to the optical center of the front turn signal lamp."In your view, "FMVSS 108 allows fog lamps to be located less than 4 inches from front turn signal lamps in certain circumstances" by virtue of "SAE J588, which is incorporated into FMVSS 108."

Under 49 U.S.C. 30103(b), Preemption, a State may prescribe or continue in effect a standard "applicable to the same aspect of performance of a motor vehicle . . . only if the standard is identical to" a Federal motor vehicle safety standard that is in effect. Fog lamps are not required items of lighting equipment under FMVSS No. 108. Thus, the action by California in regulating the spacing between fog lamps and turn signal lamps is not "an aspect of performance" that is covered by FMVSS No. 108. Therefore, we do not find that FMVSS No. 108 preempts the California statute.

We do not view SAE J588 as relevant to this issue. SAE J588 NOV84, "Turn Signal Lamps For Use on Motor Vehicles Less Than 2032 MM in Overall Width," is incorporated by reference in FMVSS No. 108 as the Federal standard applicable to turn signal lamps on passenger cars and motorcycles, and on multipurpose passenger vehicles, trucks, trailers, and buses of less than 80 inches (2032 mm) in overall width (see S5.1.1 and Table III). J588 does contain references to fog lamps. Under J588, if the lighted edge of "the low beam headlamp or any additional lamp used to supplement or used in lieu of the lower beam, such as an auxiliary low beam or fog lamp" is closer than 100 mm (4 in.) to the geometric centroid of the front turn signal functional lighted area, the luminous intensity of the turn signal lamp is required to be higher than it would be if the spacing between the turn signal and other lamp were 100 mm or greater (See J588, 5.1.5.4 and 5.1.5.4.2). But the reference to fog lamps is illustrative only, and the thrust of J588 is to regulate performance of turn signal lamps.

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

Sincerely,

Jacqueline Glassman
Chief Counsel

ref:108
d.5/2/03

ID: Hyundai_flaps_and_dots

Robert Babcock, Manager
Hyundai America Technical Center, Inc.
5075 Venture Drive
Ann Arbor, MI 48108




Dear Mr. Babcock:

This responds to your letter concerning the lower anchorage marking requirements in S9.5 of Federal Motor Vehicle Safety Standard (FMVSS) No. 225, "Child Restraint Anchorage Systems" (49 CFR 571.225). As explained below, the concept you ask about would be permitted.

By way of background, FMVSS No. 225 requires vehicles to have child restraint anchorage systems consisting of two lower bars and a tether anchorage. The standard contains "marking and conspicuity" requirements for the lower bars to increase the likelihood that consumers will know that a child restraint anchorage system is present in their vehicle and that they will use it. These requirements are for manufacturers either to mark the vehicle seat back with a small circle where the bars are located (S9.5(a)), or to install a child restraint anchorage system such that the bars are visible (S9.5(b)).

You request confirmation "that the marking and conspicuity requirements of S9.5 are satisfied when child seat anchorages that are covered with a removable flap or cover are identified with words, symbols or pictograms within the spacing limitations provided by S9.5(a)(3)". Stated differently, you ask whether, having marked the seat back as specified by S9.5(a), you may cover the bars with an unmarked removable cap or cover.

Our answer is yes, the cover is permitted, even if the cover is unmarked. In the situation you describe, Hyundais marking the vehicle seat back with the small circles specified in S9.5(a) satisfies the marking and conspicuity requirements of FMVSS No. 225. Having met the requirements by the option of S9.5(a), you are not prohibited from placing a cover over the bars. In fact, the requirements of S9.5(a) presume that the lower bars are hidden from view. Covering them as you describe is therefore not a problem. We assume, of course, that the covers will not obscure the circles required by S9.5(a).

If you have further questions, please contact Ms. Deirdre Fujita of my staff at (202) 366-2992.

Sincerely,

Jacqueline Glassman
Chief Counsel

ref:225
d.3/22/05

ID: Hyundai_S7v2

Mr. Robert Babcock
Hyundai American Technical Center, Inc.
5075 Venture Drive
Ann Arbor, MI 48108




Dear Mr. Babcock:

This responds to your request for an interpretation regarding the seat belt warning provisions of Federal Motor Vehicle Safety Standard (FMVSS) No. 208, Occupant crash protection, that pertain to the audible warning requirement. You asked if a two-second delay is permissible before the audible signal is activated. As explained below, a system as you described would not comply with the audible warning provision of FMVSS No. 208.

S7.3 of FMVSS No. 208 establishes a warning requirement to alert vehicle drivers that their seat belt is not fastened. S7.3 provides manufacturers with several options for complying with this requirement. Under each option, a continuous or intermittent audible signal must activate when the vehicle ignition is moved to the "on" or "start" position and drivers safety belt is not in use (S7.3(a)(1) and (2)). The audible signal must sound for a period of not less than four seconds and not more than eight seconds.

In your letter, you asked if a delay was permitted between the time a vehicles ignition is moved to the "on" or "start" position and when the audible signal is activated (assuming the drivers seat belt is not fastened). You stated that self-diagnostic programs may cause a short delay (up to 2 seconds) prior to the vehicle system being capable of functioning fully, and thus may delay the activation of the audible warning for that same period. You asked if this delay, which occurs after the ignition switch is moved to the "on" or "start" position, is permitted under S7.3 of FMVSS No. 208.

As explained above, S7.3 requires the audible signal to activate when the vehicle ignition is moved to the "on" or "start" position. Therefore, the short delay you described would not be permissible.

If you have any additional questions, please contact Mr. Chris Calamita of my staff at (202) 366-2992.

Sincerely,

Stephen P. Wood
Assistant Chief Counsel
for Vehicle Safety Standards and Harmonization

ref:208
d.8/12/05

ID: Importhookup.2

Mr. Tim Lau
President
Importhookup
21 Carlyle
Irvine, CA 92620

Dear Mr. Lau:

This responds to your October 26, 2004 letter, in which you seek clarification regarding the permissibility of importing replaceable light sources for All Terrain Vehicles (ATVs). We are pleased to have the opportunity to respond to your inquiry.

The National Highway Transportation Safety Administration (NHTSA) regulates "motor vehicles" and "motor vehicle equipment". "Motor vehicle" is defined by statute as "a vehicle driven or drawn by mechanical power and manufactured primarily for use on public streets, roads, and highways, but does not include a vehicle operated only on a rail line". 49 U.S.C. 30102(a)(6). NHTSA does not regulate vehicles manufactured primarily for off-road use (e.g., ATVs, snowmobiles, dirt bikes) nor the replacement equipment that is manufactured and sold specifically for those vehicles. Instead, the Consumer Product Safety Commission (CPSC) has jurisdiction over the safety of such items.

With that said, there may also be State agencies that regulate this equipment, such as through State registration requirements for ATVs. We recommend that you consult with the relevant State authorities with responsibility for motor vehicles and motor vehicle equipment regarding any applicable requirements.

If you have further questions, please feel free to contact Eric Stas of my staff at this address or by telephone at (202) 366-2992.

Sincerely,

Jacqueline Glassman
Chief Counsel

ref:108
d.1/7/05

ID: INS_SUV

Mr. Mark D. Wallace
Department of Justice
U.S. Immigration & Naturalization Service
Room 6214
425 I Street, NW
Washington, DC 20536

Dear Mr. Wallace:

This is in response to your request for a waiver to purchase motor vehicles that, because of their design for severe off-road use, do not comply with the Federal motor vehicle safety standards (FMVSS). The National Highway Traffic Safety Administration (NHTSA) does not grant this type of waiver. However, as explained below, the vehicles you wish to purchase would not be subject to the FMVSS.

By way of background, under 49 U.S.C. 30101(1) this agency has jurisdiction over "motor vehicles." A motor vehicle is "any vehicle driven or drawn by mechanical power manufactured primarily for use on the public streets, roads, and highways[.]" 49 U.S.C. 30102(a)(6). In limited circumstances, we have determined that vehicles designed and sold exclusively for off-road use were not "motor vehicles" and thus, not regulated under the FMVSS.[1] If the vehicles you wish to purchase were intended only for off-road use and therefore not "motor vehicles," they would not be subject to our standards. Furthermore, under 49 CFR 571.7(b), the FMVSS do not apply to vehicles "manufactured for, and sold directly to the Armed Services of the United States in conformity with contractual specification."

In your letter you state that current commercial, "off-the-shelf" sport utility vehicles are unable to meet the demands of operating in the severe terrain as required by the expanding mission of the Border Patrol. In response to this problem, you state that the Immigration and Naturalization Service (INS) developed a "Terrain-Based Off-Road Vehicle Program," through which the INS is working with different vehicle manufacturers to produce off-road vehicles that are designed to withstand the off-road driving conditions of deserts and mountain passes, based on existing commercial vehicles (e.g. the Chevrolet Silverado 2500HD). You anticipate that these vehicles would be operated by the Border Patrol on public roadways less than ten percent of their driving time.

Your request cites a previous letter from our agency in which we determined that through border enforcement, the Border Patrol functions similar to a component of the Armed Forces.[2] In that letter, the Hummer vehicles bought by the Border Patrol were used in a national security role by protecting "the countrys borders to ensure that persons and goods enter and exit only through official Customs and Immigration stations." The Hummer vehicles were capable of being equipped with military equipment and would carry firearms. As such, the Hummer vehicles were not subject to the FMVSS.

Our agency regards the border enforcement function of the Border Patrol as being akin to a component of the Armed Forces of the United States. Because of the unique mission and method of operation by the Border Control, I have determined that the vehicles in question fall with in the military vehicle exemption and need not be certified as compliant with all applicable FMVSS. In this instance, the vehicles you wish to purchase would be built according to specifications provided by the Border Patrol. The vehicles would be sold directly to the Border Patrol. The vehicles would be used in a capacity similar to that of the exempted Hummer vehicles previously purchased by the Border Patrol and in a capacity similar to that of the Armed Forces. We take no position on whether these vehicles, if purchased by someone other than INS, would be considered motor vehicles with in the context of 49 U.S.C. 30101, et seq.

I hope this addresses your concern.If you have any further questions please contact Mr. Chris Calamita of my staff at (202) 366-0536.

Sincerely,

Jacqueline Glassman
Chief Counsel

ref:571
d.3/17/03

ID: itemco.jeg

Mr. Maury Solel
Marketing Manager
Itemco Industries, Inc.
57 Cedar Court
Closter, NJ 07624





Dear Mr. Solel:

This responds to your letter asking about the implications of "supplying to the automotive aftermarket a generic air bag." I apologize for the delay in responding. You ask whether the requirements of Standard No. 208 apply to such air bags. Based on a telephone conversation between you and Edward Glancy of my staff, we understand that you contemplate supplying replacement air bag modules for vehicles whose air bags have deployed in crashes. Your question is addressed below.

By way of background information, the National Highway Traffic Safety Administration (NHTSA) is authorized under Title 49, Chapter 301 of the U.S. Code (Motor Vehicle Safety) to issue Federal motor vehicle safety standards (FMVSSs) that apply to the manufacture and sale of new motor vehicles and new items of motor vehicle equipment. The FMVSSs apply in different ways. Some apply only to new motor vehicles ("vehicle standards"), others apply to new items of motor vehicle equipment ("equipment standards"), while others apply to both new vehicles and new equipment.

One of the standards established by NHTSA, Standard No. 208, Occupant Crash Protection (49 CFR 571.208), requires air bags to be installed in cars and light trucks. This standard sets forth a number of performance requirements related to air bags. With one exception, Standard No. 208 is a vehicle standard. Manufacturers of new vehicles are required to certify that their vehicles comply with Standard No. 208. The exception is paragraph S9, which is also an equipment standard. This paragraph specifies requirements for pressure vessels and explosive devices for use in air bag systems. Therefore, manufacturers of pressure vessels and explosive devices must certify that they comply with the requirements of S9 of Standard No. 208. You could not sell a replacement air bag module with these components unless the new components were certified as meeting the requirements of S9.

At this time, there are no other Federal motor vehicle safety standards that apply to air bags as items of motor vehicle equipment.

However, a manufacturer of a replacement air bag module would be a motor vehicle equipment manufacturer and would be subject to the notification and remedy requirements for products with defects related to motor vehicle safety (49 U.S.C. 30118-30121). A "defect" includes "any defect in performance, construction, a component, or material of a motor vehicle or motor vehicle equipment." "Motor vehicle safety" is defined as "the performance of a motor vehicle or motor vehicle equipment in a way that protects the public against unreasonable risk of accidents occurring because of the design, construction, or performance of a motor vehicle or motor vehicle equipment performance." 49 U.S.C. 30102.

If the manufacturer or NHTSA determined that the product had a defect related to motor vehicle safety, the manufacturer would have to notify all product purchasers of the defect, and either:

1. Repair the product so that the defect is removed; or

2. Replace the product with an identical or reasonably equivalent product that does not have the defect.

The manufacturer would have to bear the full expense of the recall campaign, irrespective of the option chosen, for any owner who purchased the product less than 10 years before the determination that the defect existed.

There is also a statutory provision that limits how certain entities may modify motor vehicles. Manufacturers, distributors, dealers and motor vehicle repair businesses are prohibited from knowingly making inoperative any part of a device or element of design installed on or in a motor vehicle or item of motor vehicle equipment in compliance with an applicable Federal motor vehicle safety standard (49 U.S.C. 30122). This provision would generally prohibit one of these entities from removing a functional air bag that was installed in compliance with Standard No. 208.

Your letter raises the issue of whether, when a deployed air bag is replaced, Federal law requires use of a replacement air bag that will enable the vehicle to comply with Standard No. 208. The answer to this question is no. Our statute does not require a manufacturer, distributor, dealer, or repair business to return a vehicle to compliance with a standard if a device or element of design has been "made inoperative" by another agent, such as a crash. Thus, Federal law does not require that deployed air bags be replaced or regulate the manner in which such air bags are replaced. However, as explained above, replacement bags must be free of safety-related defects. In addition, some States may have requirements applicable to such replacements.

Furthermore, we emphasize our concern that in order for a replacement air bag to provide protection to vehicle occupants, it is essential that the replacement be properly completed. The repair should be performed according to the procedures specified by the vehicle manufacturer. This may require replacement of system components in addition to the air bag inflator module such as crash sensors, wiring and other electronic components as specified by the manufacturer. Moreover, since air bags are designed for specific vehicles, taking into consideration such factors as the seats, steering column crush stroke force resistance, location of the air bag, location and nature of knee bolsters, and compartment acceleration responses in frontal crashes, we strongly believe that only air bags which are designed for the vehicle in question should be used. Finally, after the air bags are replaced, it is important that the air bag readiness indicator be in good working order to alert the occupants of any future malfunction of the air bag system.

I also note that, during the past several years, this agency and the industry have focused a great deal of attention on ensuring that air bags are designed to create less risk of serious air bag-induced injuries for persons who are close to the air bag at time of deployment. Among other things, manufacturers have reduced the power of many of their air bags and have used innovative fold patterns to reduce the aggressivity of air bags. The fold patterns may be unique to a specific vehicle model. We would suggest that you carefully consider this issue in designing your product.

Enclosed for your information is an information sheet titled "Information for New Manufacturers of Motor Vehicles and Motor Vehicle Equipment."

Finally, you may wish to consult a private attorney concerning the state law implications of supplying replacement air bag modules, including possible tort liability implications.

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

Sincerely,

John Womack
Acting Chief Counsel

Enclosure
ref:208
d.4/11/01