Mr. Harley Holt
Harley Holt & Associates, Inc.
1704 Random Stone Court
Reston, VA 20190-3251
Dear Mr. Holt:
This responds to your request for an interpretation of Federal Motor Vehicle Safety Standard No. 126, Electronic Stability Control Systems. You asked when a manufacturer is required to certify compliance with this standard if it passes the small volume manufacturer threshold of 5,000 vehicles in the middle of one of the September 1 to August 31 phase-in years. As discussed below, a manufacturer is subject to the regular phase-in requirements for the entire phase-in year if it manufactures more than 5,000 vehicles in that period.
By way of background information, the National Highway Traffic Safety Administration (NHTSA) is authorized to issue Federal motor vehicle safety standards (FMVSS) that set performance requirements for new motor vehicles and items of motor vehicle equipment. NHTSA does not, however, approve or certify any vehicles or items of equipment. Instead, the Safety Act establishes a self-certification process under which each manufacturer is responsible for certifying that its products meet all applicable safety standards. This letter interprets FMVSS No. 126 based on our understanding of the information you have provided.
You stated that you represent an importer of all-electric vehicles, and explained that the manufacturer of the vehicles has not yet begun to produce vehicles for the U.S., but will begin production sometime during 2009. You stated that the manufacturer did not anticipate producing more than 5,000 units during the first production year, i.e., September 1, 2008 through August 31, 2009. However, you stated further that production is expected to exceed 5,000 units sometime during the period from September 1, 2009 and August 31, 2011. You asked, therefore, on what date a manufacturer is required to certify compliance with FMVSS No. 126 if it exceeds the small volume limit of 5,000 units produced sometime during a production year from September 1 through August 31 of any of the three years of the phase-in period for that standard.
Paragraph S8.7 of FMVSS No. 126, Small volume manufacturers, states that
Vehicles manufactured during any of the three years of the September 1, 2008 through August 31, 2011 phase-in by a manufacturer that produces fewer than 5,000 vehicles for sale in the United States during that year are not subject to the requirements of S8.1, S8.2, S8.3, and S8.5.
49 CFR 571.126, S8.7. Thus, small volume manufacturers producing less than 5,000 vehicles for sale in the United States in a given phase-in year are not subject to the S8 phase-in requirements. However, if a manufacturer exceeds the 5,000 unit threshold for a phase-in year, it does not qualify as a small volume manufacturer for purposes of S8.7, and it is subject to the regular phase-in requirement for the entire phase-in year. The 5,000-unit threshold was chosen to ensure that only manufacturers that are truly small volume are excluded from the phase-in requirements for ESC.
If you have any further questions, please feel free to contact Rebecca Yoon of my staff at (202) 366-2992.
Anthony M. Cooke
 We note that all vehicles manufactured on or after September 1, 2011 must comply with FMVSS No. 126, unless they are manufactured in two or more stages or are altered after having previously been certified, per S8.4 and S8.8. All vehicles, regardless of whether they are manufactured in two or more stages or are altered, must comply with FMVSS No. 126 by September 1, 2012, per S8.8.