ID: nht95-3.24

TYPE: INTERPRETATION-NHTSA

DATE: June 23, 1995

FROM: John Womack -- Acting Chief Counsel, NHTSA

TO: Richard Mark Gergel, Esq. -- Gergel, Burnette, Nickles, Grant & Leclair, P. A.

TITLE: NONE

ATTACHMT: ATTACHED TO 6/5/95 LETTER FROM RICHARD MARK GERGEL TO STEPHEN P. WOOD

TEXT: Dear Mr. Gergel:

We have received your letter of June 5, 1995, concerning "the applicability of the Motor Vehicle Safety Act to transactions between a local car dealer and purchasers within the same state." The litigation in which you are involved concerns the sale of a motor vehicle to a school to transport students. This vehicle, which had the capacity to carry more than 10 persons, "did not meet the safety standards for a 'school bus' under the Act." The defendant dealer asserts that a transaction between a dealer a nd purchaser within the same state is beyond the scope of the Act "since such a transaction allegedly is not within interstate commerce."

Taylor Vinson of this office talked with you on June 14 for a clarification of the facts. We understand that the vehicle in this case was a cargo van originally manufactured by Ford Motor Company and which, before its first purchase in good faith other than for resale, by a private school, was altered by persons not yet known to carry more than 10 persons. The vehicle does not appear to carry the certification of its alterer. The plaintiff in your case is the estate of a child killed while being tran sported in the vehicle. Under South Carolina law, failure to comply with a Federal safety statute is negligence per se. As noted above, the defendant dealer asserts that there is no violation of the Act because the sale of the vehicle did not occur in interstate commerce, and, hence, that it was not negligent per se.

This is our interpretation of the relevant portions of 49 U.S.C. Chapter 301 - Motor Vehicle Safety (formerly known as the National Traffic and Motor Vehicle Safety Act). Section 30112(a) provides as follows:

Except as provided in this section, sections 30113 and 30114 of this title, and subchapter III of this chapter, . . . a person may not manufacture for sale, sell, offer for sale, introduce or deliver for introduction in interstate commerce, or import int o the United States, any motor vehicle or item of motor vehicle equipment manufactured on or after the date an applicable motor vehicle safety standard prescribed under this chapter takes effect unless the vehicle or equipment complies with the standard and is covered by a certification issued under section 30115 of this title.

The sale or offer for sale of a nonconforming motor vehicle which is not certified as conforming to all applicable Federal motor vehicle safety standards is a violation of 49 U.S.C. 30112(a), regardless of whether the purchaser and seller reside in the s ame state. The phrase "introduce or deliver for introduction in interstate commerce" is self-contained and separated by commas from the rest of the prohibited acts. It in no way modifies the words "sell" and "offer for sale," which are violations separ ate and distinct from those of introducing or delivering for introduction in interstate commerce a noncomplying or uncertified motor vehicle. Thus, the case that you refer to, National Association of Motor Bus Owners v. Brinegar, 483 F.2d 1294 (D.C. Cir . 1973), is irrelevant to the issue of whether the dealer violated section 30112(a) by selling the vehicle in question.

As noted above, the statute provides certain exemptions and defenses that may be applicable to the question of whether there has been a violation of section 30112(a). The general and special exemptions of sections 30113 and 30114, and the import exempti ons of subchapter III are not relevant here. However, if the dealer can establish that any of the following defenses set out in section 30112(b) apply, there would be no violation.

* If the vehicle had previously been in use before it was sold to the school (section 30112(b)(1))

* If the dealer had no reason to know at the time it offered for sale and sold the vehicle to the private school, despite exercising reasonable care, that the van did not comply with Federal school bus safety standards. (section 30112(b)(2)(A))

* If the dealer held a certificate by the manufacturer stating that the vehicle complied with applicable Federal school bus safety standards, and did not know about the noncompliance before sale to the school. (section 30112(b)(2)(B))

Further, it appears that the alterer of this vehicle may have violated 49 CFR 568.8, a regulation issued under the authority of 49 U.S.C. 30115. Under this regulation, one who alters a certified vehicle before its first purchase in good faith for other than resale must affix its certification that the vehicle as altered complies with all applicable Federal motor vehicle safety standards.

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

ID: 0976

Richard Mark Gergel, Esq.
Gergel, Burnette, Nickles,
Grant & Leclair, P.A.
P.O. Box 1866
Columbia, SC 29202-1866

Dear Mr. Gergel:

We have received your letter of June 5, 1995, concerning "the applicability of the Motor Vehicle Safety Act to transactions between a local car dealer and purchasers within the same state." The litigation in which you are involved concerns the sale of a motor vehicle to a school to transport students. This vehicle, which had the capacity to carry more than 10 persons, "did not meet the safety standards for a `school bus' under the Act." The defendant dealer asserts that a transaction between a dealer and purchaser within the same state is beyond the scope of the Act "since such a transaction allegedly is not within interstate commerce."

Taylor Vinson of this office talked with you on June 14 for a clarification of the facts. We understand that the vehicle in this case was a cargo van originally manufactured by Ford Motor Company and which, before its first purchase in good faith other than for resale, by a private school, was altered by persons not yet known to carry more than 10 persons. The vehicle does not appear to carry the certification of its alterer. The plaintiff in your case is the estate of a child killed while being transported in the vehicle. Under South Carolina law, failure to comply with a Federal safety statute is negligence per se. As noted above, the defendant dealer asserts that there is no violation of the Act because the sale of the vehicle did not occur in interstate commerce, and, hence, that it was not negligent per se.

This is our interpretation of the relevant portions of 49 U.S.C. Chapter 301 - Motor Vehicle Safety (formerly known as the National Traffic and Motor Vehicle Safety Act). Section 30112(a) provides as follows:

Except as provided in this section, sections 30113 and 30114 of this title, and subchapter III of this chapter, . . . a person may not manufacture for sale, sell, offer for sale, introduce or deliver for introduction in interstate commerce, or import into the United States, any motor vehicle or item of motor vehicle equipment manufactured on or after the date an applicable motor vehicle safety standard prescribed under this chapter takes effect unless the vehicle or equipment complies with the standard and is covered by a certification issued under section 30115 of this title.

The sale or offer for sale of a nonconforming motor vehicle which is not certified as conforming to all applicable Federal motor vehicle safety standards is a violation of 49 U.S.C. 30112(a), regardless of whether the purchaser and seller reside in the same state. The phrase "introduce or deliver for introduction in interstate commerce" is self-contained and separated by commas from the rest of the prohibited acts. It in no way modifies the words "sell" and "offer for sale," which are violations separate and distinct from those of introducing or delivering for introduction in interstate commerce a noncomplying or uncertified motor vehicle. Thus, the case that you refer to, National Association of Motor Bus Owners v. Brinegar, 483 F.2d 1294 (D.C. Cir. 1973), is irrelevant to the issue of whether the dealer violated section 30112(a) by selling the vehicle in question.

As noted above, the statute provides certain exemptions and defenses that may be applicable to the question of whether there has been a violation of section 30112(a). The general and special exemptions of sections 30113 and 30114, and the import exemptions of subchapter III are not relevant here. However, if the dealer can establish that any of the following defenses set out in section 30112(b) apply, there would be no violation.

C If the vehicle had previously been in use before it was sold to the school (section 30112(b)(1))

C If the dealer had no reason to know at the time it offered for sale and sold the vehicle to the private school, despite exercising reasonable care, that the van did not comply with Federal school bus safety standards. (section 30112(b)(2)(A))

C If the dealer held a certificate by the manufacturer stating that the vehicle complied with applicable Federal school bus safety standards, and did not know about the noncompliance before sale to the school. (section 30112(b)(2)(B))

Further, it appears that the alterer of this vehicle may have violated 49 CFR 568.8, a regulation issued under the authority of 49 U.S.C. 30115. Under this regulation, one who alters a

certified vehicle before its first purchase in good faith for other than resale must affix its certification that the vehicle as altered complies with all applicable Federal motor vehicle safety standards.

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

Sincerely,

John Womack Acting Chief Counsel ref:VSA d:6/23/95

ID: 00473.ztv

Mr. Charles I. Sassoon
President
Panor Corp.
125 Cabot Ct.
Hauppauge, NY 11788

Re: Maxxima Lamp M40130R

Dear Mr. Sassoon:

This is in reply to your letter to Taylor Vinson of this Office. You asked for our opinion whether Federal Motor Vehicle Safety Standard No. 108 permits the "Maxxima LED Sequential Stop/Tail/Turn Signal Lamp M40130R" that your company seeks to manufacture. You did not state whether the Maxxima lamp is intended as original equipment or as replacement equipment.

According to your letter, "when turn signaling is activated, separate sections of light are illuminated sequentially." The stop and tail functions "operate as normal steady burn and intermittent braking respectively." You have enclosed a test report by an independent laboratory indicating that a sample Maxxima lamp met all photometric requirements for the three functions of the lamp. You have also provided a sample of the Maxxima lamp. The Maxxima lamp is circular in shape, and when we activated it, we found that "sequentially" meant that the turn signal function illuminated from the center outwards to the perimeter. However, we found that the stop function also activated identically; the lamp became illuminated in two distinct phases.

Paragraph S5.1.4, Equipment combinations, of Standard No. 108 states that "two or more lamps . . . may be combined if the requirements for each lamp . . . are met," with exceptions not relevant here. Therefore, Standard No. 108 does not prohibit a single lamp that combines complying stop, tail, and turn signal functions. Essential to compliance is conformance to the specifications of SAE standards incorporated by reference in Standard No. 108 as well as specific requirements of Standard No. 108 itself. Because the Maxxima lamp may be used on any four-wheeled motor vehicle regardless of width, its stop lamp function must comply with both SAE J1398 MAY85 and SAE J586 MAY84. The Maxxima turn signal lamp function must comply with both SAE J1395 APR85 and SAE J588 NOV84. The taillamp function must comply with SAE J585e, September 1977, which applies to all vehicles regardless of width.

I enclose a copy of our response to W.E. Baldwin, PhD., who wrote us on September 1, 1988, concerning a sequentially-activated center high-mounted stop lamp. We informed Dr. Baldwin that Standard No. 108 requires stop lamps to be activated upon application of the service brakes, and that this meant that all bulbs providing the center stop signal must be simultaneously activated, not sequentially. Similarly, all light sources providing a turn signal must be illuminated simultaneously when the turn signal operating control is activated. Failure of all light sources to illuminate simultaneously means that the stop and turn signal functions of the Maxxima lamp would not comply with the minimum luminous lens area requirement of applicable SAE standards at all times after the brake pedal is applied or the turn signal operating control is activated. Thus, the stop and turn signal function of the Maxxima lamp would not comply with Standard No. 108.

Standard No. 108 also requires a minimal size for the functional lighted lens area of a turn signal lamp. The Maxxima turn signal lamp function must comply with SAE J1395 APR85, paragraph 5.3.2 of which specifies that the area be at least 75 square centimeters for turn signal lamps on vehicles whose overall width is 80 inches or more. Paragraph S5.1.1.26(a) of Standard No. 108 specifies that this area be at least 50 square centimeters for narrower vehicles.When the turn signal function is activated on the Maxxima lamp, the minimum area requirement is not met at the time the first cycle begins because of the sequential nature of the lamps operation, a further noncompliance with Standard No. 108.

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

Sincerely,

Jacqueline Glassman
Chief Counsel

Enclosure
ref:108
d.5/22/03

ID: 22132oneW--BusinessModelOneOnly

Mark A. Rosenbaum, Esq.
Stroock & Stroock & Lavan
180 Maiden Lane
New York, NY 10038-4982





Dear Mr. Rosenbaum:

This responds to your August 17, 2000, letter about Safety Standard No. 213, "Child Restraint Systems" (49 CFR 571.213), as it relates to the services that your client, OneWarranty.com, Inc., would like to offer concerning owner registration of child restraint systems and other products. I apologize for the delay in responding. You ask three questions, which are addressed below.

Background

Standard No. 213

Federal Motor Vehicle Safety Standard No. 213, "Child Restraint Systems," establishes an owner registration program for child restraint systems. The National Highway Traffic Safety Administration (NHTSA) implemented the program to improve the effectiveness of manufacturer campaigns to recall child restraints that contain a safety-related defect or that fail to conform to Standard No. 213. By increasing the number of identified child restraint purchasers, the program increases the manufacturers' ability to inform owners of restraints about defects or noncompliances in those restraints.

Under the program, child restraint manufacturers are required to provide a registration form attached to each child restraint (S5.8). The registration form must conform in size, content and format to forms depicted in the standard (figures 9a and 9b). Each form must include a detachable postage-paid postcard which provides a space for the consumer to record his or her name and address, and must be preprinted with the restraint's model name or number and its date of manufacture. Except for information that distinguishes a particular restraint from other systems, no other information is permitted to appear on the postcard. (S5.8(c)). Child restraints are also required to be labeled with a statement urging the owner to register with the manufacturer (S5.5.2(m)). The statement also must be in the printed instructions for each child restraint (S5.6.1.7).

OneWarranty.com

On September 13, 2000, you and your client, Douglas Suliman, Jr. of OneWarranty.com, met with several representatives of the National Highway Traffic Safety Administration (NHTSA), including Jon White, Zack Fraser, Michael Huntley, and Deirdre Fujita of my staff. You explained that your client is an internet company that provides product registration services to consumers and manufacturers for a multitude of manufacturers and products. The company's services would be free to consumers.

Your client is considering entering into an arrangement with child restraint manufacturers to register owners of child restraint systems. Under the arrangement, the manufacturer's owner registration cards would be printed with information notifying purchasers that they may register the child restraint "through a mail-in card or via the internet" through OneWarranty.com's web-site. (Your first two questions relate to the permissibility of including this information on the card.) OneWarranty.com would be informed of a safety recall by the child restraint manufacturer. The owner's identity would be held by OneWarranty.com and withheld from the child restraint manufacturer, so that, as you state on page two of your letter, "the consumer can maintain its privacy from the manufacturer and from intrusive questionnaires traditionally associated with product registration...." The company would maintain the registration information for a minimum of six years. Under the model, OneWarranty.com contemplates notifying child restraint owners electronically of a recall, by e-mail. (Your third question relates to the permissibility of e-mail notifications of a recall.)

Your Questions

ID: 1985-04.12

TYPE: INTERPRETATION-NHTSA

DATE: October 30, 1985

FROM: NHTSA

TO: K. Douglas Scribner -- Mini City, Ltd.

TITLE: FMVSS INTERPRETATION

TEXT: This responds to your recent letter seeking an interpretation of Standard No. 109, New Pneumatic Tires -- Passenger Cars (49 CFR @ 571.109). Specifically, you were interested in learning whether that standard applies to tires for use on "antique and classic automobiles." You stated that your firm deals in tires which are authentic replacement tires for antique and classic cars, and that none of those tires has ever been marked with a DOT number. Standard No. 109 requires that all new pneumatic tires for use on passenger cars manufactured after 1948 be marked with DOT numbers, among other things, and there is no exception to this requirement for tires designed for "classic" cars.

It is unclear when you refer to a "DOT number" whether you are referring to just the tire identification number, which is required to appear on all new tires for use on passenger cars manufactured after 1948 by 49 CFR Part 574, Tire Identification and Recordkeeping, or that identification number together with the symbol "DOT." The DOT symbol is a certification by the tire manufacturer that the tire complies with all the requirements of Standard No. 109. I have enclosed copies of both Standard No. 109 and Part 574 for your information.

In any event, Standard No. 109 applies to all new pneumatic tires for use on passenger cars manufactured after 1948. Section S4.3.1 of the standard requires the DOT symbol to be permanently marked on the tire, while section S4.3.2 requires the tire identification number assigned to a manufacturer in accordance with Part 574 to be permanently marked on the tire. Standard No. 109 contains no provisions making an exception to these requirements.

Accordingly, if the antique and classic cars to which you refer were manufactured in or before 1948, the tires are not subject to Standard No. 109 or Part 574. Sales of such tires would not violate any of this agency's requirements.

If, however, the tires are designed for use on cars manufactured after 1948, the tires must comply with all requirements of Standard No. 109, including the requirements to have a DOT symbol and a tire identification number marked permanently on the sidewall. If you sell tires which are subject to, but do not comply with, the requirements of Standard No. 109, you would violate section 108(a)(1)(A) of the National Traffic and Motor Vehicle Safety Act (15 U.S.C. 1397(a)(1)(A)). Section 109 of that Act (15 U.S.C. 1398) specifies a maximum civil penalty of $ 1,000 for each violation of section 108, and this agency would consider each sale of a noncomplying tire to be a separate violation.

If you need any further information on this subject, please contact Steve Kratzke of my staff at this address or by telephone at (202) 426-2992.

Sincerely,

Enclosures

ATTACH.

Mini City Ltd.

SEPTEMBER 16, 1985

JEFFREY R. MILLER -- Office of Chief Council, National Highway Traffic Safety Administration

Further to conversations with your office today, regarding DOT Standard 109 and its application to our marketing of tires for antique and classic automobiles, I am writing to request a copy of the "interpretation book" which will explain qualifying exceptions or exemptions.

Basicall, we have dealt, and wish to continue dealing, in tires which are obsolete in nature (non-radial, odd sizes, etc.) but which are necessary for authentic replacement tires on antique and classic cars.

Some of these are still supplied by their original manufacturers (Firestone, Goodyear, Dunlop, etc.) and some are reproductions made from original molds (Denman, Lucas, etc.). None of these have ever carried DOT numbers.

I look forward to your reply at your early convenience.

Sincerely,

K. Douglas Scribner -- President

ID: 1985-04.16

TYPE: INTERPRETATION-NHTSA

DATE: 11/07/85

FROM: AUTHOR UNAVAILABLE; Erika Z. Jones; NHTSA

TO: Mr. K. Douglas Scribner

TITLE: FMVSS INTERPRETATION

TEXT:

Mr. K. Douglas Scribner President Mini City Ltd. 876 Turk Hill Road Fairport, NY 14450 Dear Mr. Scribner:

This responds to your recent letter seeking an interpretation of Standard No. 109, New Pneumatic Tires--Passenger Cars (49 CFR S571.109). Specifically, you were interested in learning whether that standard applies to tires for use on "antique and classic automobiles." You stated that your firm deals in tires which are authentic replacement tires for antique and classic cars, and that none of those tires has ever been marked with a DOT number. Standard No. 109 requires that all new pneumatic tires for use on passenger cars manufactured after 1948 be marked with DOT numbers, among other things, and there is no exception to this requirement for tires designed for "classic" cars.

It is unclear when you refer to a "DOT number" whether you are referring to just the tire identification number, which is required to appear on all new tires for use on passenger cars manufactured after 1948 by 49 CFR Part 574, Tire Identification and Recordkeeping, or that identification number together with the symbol "DOT." The DOT symbol is a certification by the tire manufacturer that the tire complies with all the requirements of Standard No. 109. I have enclosed copies of both Standard No. 109 and Part 574 for your information.

In any event, Standard No. 109 applies to all new pneumatic tires for use on passenger cars manufactured after 1948. Section S4.3.1 of the standard requires the DOT symbol to be permanently marked on the tire, while section S4.3.2 requires the tire identification number assigned to a manufacturer in accordance with Part 574 to be permanently marked on the tire. Standard No. 109 contains no provisions making an exception to these requirements.

Accordingly, if the antique and classic cars to which you refer were manufactured in or before 1948, the tires are not subject to Standard No. 109 or Part 574. Sales of such tires would not violate any of this agency's requirements.

If, however, the tires are designed for use on cars manufactured after 1948, the tires must comply with all requirements of Standard No. 109, including the requirements to have a DOT symbol and a tire identification number marked permanently on the sidewall. If you sell tires which are subject to, but do not comply with, the requirements of Standard No. 109,you would violate section 108(a)(1)(A) of the National Traffic and Motor Vehicle Safety Act (15 U.S.C. 1397(a)(1)(A)). Section 109 of that Act (15 U.S.C. 1398) specifies a maximum civil penalty of $1,000 for each violation of section 108, and this agency would consider each sale of a noncomplying tire to be a separate violation.

If you need any further information on this subject, please contact Steve Kratzke of my staff at this address or by telephone at (202) 426-2992. Sincerely, Erika Z. Jones Chief Counsel Enclosures

National Highway Traffic Safety Administration Room 5219 400 Seventh Street S.W. Washington DC 20590 Attn: Jeffrey R. Miller

Further to conversations with your office today, regarding DOT Standard 109 and its application to our marketing of tires for antique and classic automobiles, I am writing to request a copy of the "interpretation book" which will explain qualifying exceptions or exemptions.

Basically, we have dealt, and wish to continue dealing, in tires which are obsolete in nature (non-radial, odd sizes, etc.) but which are necessary for authentic replacement tires on antique and classic cars.

Some of these are still supplied by their original manufacturers (Firestone. Goodyear, Dunlop, etc.) and some are reproductions made from original molds (Denman, Lucas, etc.). None of these have ever carried DOT numbers.

I look forward to your reply at your early convenience. Sincerely, K. Douglas Scribner President KDS:se

ID: nht73-1.33

DATE: 04/12/73

FROM: AUTHOR UNAVAILABLE; L. R. Schneider; NHTSA

TO: Trailmobile

TITLE: FMVSS INTERPRETATION

TEXT: We have received copies of your letter of March 28, 1973, to the ten Regional Administrators of this agency, concerning the compliance of your vehicles with Standard No. 108. You state that law enforcement officials in certain jurisdictions are citing your semitrailers for lack of clearance lamps when, as a matter of fact, the vehicles are equipped with combination turn signal and clearance lamps located near the lower rear corners of the vehicle. You ask the Regional Administrators to advise the local authorities that this lamp configuration conforms to Standard No. 108 and "that any conflicting state regulation is unenforceable under the provisions of Section 103(d) of the Traffic Safety Act."

Paragraph S4.3.1.4 of Standard No. 108 states, "Where the rear identification lamps are mounted at the extreme height of a vehicle, rear clearance lamps need not meet the requirement of Table II that they be located as close as practicable to the top of the vehicle." Since the identification lamps depicted in your drawing are at the extreme height of the vehicle, the location you have chosen for the clearance lamps in allowed by Standard No. 108. Section 103(d) of the National Traffic and Motor Vehicle Safety Act, 15 U.S.C. 1392(d), renders void any State law with differing requirements for this equipment.

I am sending a copy of this letter to the Regional Administrators.

Sincerely,

March 28, 1973

This letter was sent to Regional Administrator, Dept. of Transportation, National Highway Traffic Safety Administration, at each of the 10 Regional Offices on attached page.

Dear Sir:

In the past few months we have (upon customer specification) been building highway semi-trailers with only the three identification lamps on the top-rear of the vehicle. The two rear clearance lamps have been combined with the turn-signal lamps and are not at the customary top corner locations (SEE ATTACHED SKETCH).

In our opinion this is a perfectly legal situation under sections S4.3.1.5 and S4.4.1 of Federal Motor Vehicle Safety Standard #108, established pursuant to Public Law 89-563.

In some states, these vehicles are being cited for "not having rear clearance lamps", due in part I feel to a lack of knowledge or understanding on the part of the state enforcement people that these trailers in fact do have the legally required lamps.

Would you please inform the proper enforcement people in the states within your region of the legality of this particular lamp configuration under Federal law and that any conflicting state regulation is unenforceable under the provisions of Section 103(d) of the National Traffic and Motor Vehicle Safety Act of 1966 (Public Law 89-563).

Please advise the undersigned of the situation with respect to this matter in your particular region so that we may in turn inform our customers accordingly.

Sincerely,

R. J. Deller -- Vice President of Engineering, TRAILMOBILE

c: J. E. Cook; E. Hammond; R. P. McArdla - Chicago; E. E. Lungren - Chicago; R. Dyson-D.O.T., Wash. D.C. w/sketch

NATIONAL HIGHWAY TRAFFIC SAFETY ADMINISTRATION

REGIONAL ADMINISTRATORS Region I * Transportation Systems Center Connecticut, Maine, Massachusetts, 55 Broadway New Hampshire, Rhode Island, Vermont Cambridge, Massachusetts 02142 Region II 4 Normanskill Boulevard New York, New Jersey, Puerto Rico Delmar, New York 12050 518 472-4095 Region III Room 1633, Federal Building Delaware, District of Columbia, Maryland, 31 Hopkins Place Pennsylvania, Virginia, West Virginia Baltimore, Maryland 21201 301-962-3878 Region IV Suite 200, 1720 Peachtree Road, NW Alabama, Florida, Georgia, Kentucky, Atlanta, Georgia 30309 Mississippi, North Carolina, South 404-526-5537 Carolina, Tennessee Region V 18209 Dixie Highway Illinois, Indiana, Minnesota, Michigan, Homewood, Illinois 60430 Ohio, Wisconsin 312-799-6300 X-21 Region VI 819 Taylor Street Arkansas, Louisiana, New Mexico, Oklahoma, Fort Worth, Texas 76102 Texas 817-334-2021 Region VII P.O. Box 7186, Country Club Station Iowa, Kansas, Missouri, Nebraska Kansas City, Missouri 64113 816-361-0860 X-7887 Region VIII Room 242, Building 40 Colorado, Montana, North Dakota, Denver Federal Center South Dakota, Utah, Wyoming Denver, Colorado 80225 303-233-3611 X-6429 Region IX 450 Golden Gate Avenue Arizona, California, Hawaii, Nevada P.O. Box 36096 San Francisco, California 94102 415-556-5450 Region X Room 412, Mohawk Building Alaska, Idaho, Oregon, Washington 222 S.W. Morrison Street Portland, Oregon 97204 503-226-3361 X-1754

* Handled out of Delmar office until further notice.

Truck Body & Equipment Association, Inc.,

DOT CHART-5

Supplement 3/31/71

TRAILER REAR LAMP LOCATIONS FOR COMPLIANCE WITH FMVSS #108

(Graphics omitted)

ID: nht89-1.89

TYPE: INTERPRETATION-NHTSA

DATE: 05/16/89

FROM: STEPHEN P. WOOD -- NHTSA ASSISTANT CHIEF COUNSEL FOR RULEMAKING

TO: THOMAS C. GRAVENGOOD -- AGAP'E PLASTICS INC.

TITLE: NONE

ATTACHMT: ATTACHED TO LETTER DATED 08/11/89 FROM STEPHEN P. WOOD -- NHTSA TO GEORGE A. VANSTRATEN; REDBOOK A34; STANDARD 108 LETTER DATED 07/12/89 FROM GEORGE A. VANSTRATEN -- VAN STRATEN HEATED TAIL LIGHT; OCC 3732; ALSO ATTACHED TO 04/03/89 LETTER FROM THOMAS GRAVENGOOD TO NHTSA (OCC 3348)

TEXT: Dear Mr. Gravengood:

This is in reply to your letter of April 3, 1989, to this Office enclosing samples of plastic lenses. Your company manufacturers "heated lights" which appear beneficial in melting snow that accumulates on them in the winter months. In your letter, you s tated:

"All lights, lenses, and materials to assemble the heated safety lights have already been certified and passed the Motor Vehicle Safety Standard No. 108. We have been advised by the National Highway Traffic Safety Administration that there is no moto r vehicle safety standard no. for heated lights. In order for us to do business at the O.E.M. level we require a letter of approval from you to us that we may pass on to our customers so they may start ordering and we may start producing."

We have no authority to "approve" or "disapprove" items of motor vehicle equipment. Under the National Traffic and Motor Vehicle Safety Act, an equipment manufacturer "approves" each of its own products that are subject to a Federal motor vehicle safety standard by certifying that it meets all applicable Federal motor vehicle safety standards, or (if it is a vehicle manufacturer), that the vehicle on which the lamp is installed, complies with the standards. However, we can advise you of the relationshi p of your product to Standard No. 108. This should prove helpful in dealings at the O.E.M. level.

There are two types of O.E.M. lighting equipment: lamps that are required by Standard No. 108, and supplementary lamps that do not come under its coverage. Although your product literature indicates that the highmounted heated taillamp supplements the or iginal equipment lamp, it is not clear whether the heated signal lamp serves as the required signal lamp or is a supplement to the original equipment. Accordingly, this letter discusses how Standard No. 108 treats both original required and original sup plemental lighting equipment.

If you are the manufacturer of original lighting equipment required by Standard No. 108, but not the manufacturer of the vehicle on which it is installed, the vehicle manufacturer, and not you, has the legal

2

responsibility under the Act and Standard No. 108 of ensuring that the equipment complies with the standard, and of certifying that the vehicle meets all applicable Federal motor vehicle safety standards. As a practical matter, however, vehicle manufact urers generally insist that equipment manufacturers provide assurance that their products meet Federal standards, but the "certification" they may insist upon is not required by the Act. You are correct that there is no standard that applies to heated l amps as such. The Federal standard that applies is the one imposed by Standard No. 108 for the particular equipment item (taillamps or signal lamps in this instance).

If you are manufacturing a lamp as an original equipment supplement to required original lighting equipment, the burden remains on the vehicle manufacturer who installs it. The only restriction on a supplementary lamp that Standard No. 108 imposes is th at it not impair the effectiveness of the required lighting equipment (paragraph S4.1.3). Your lamps "splice into" the wiring for the taillamps and "marker lamps", according to your product literature. Therefore, it is incumbent upon the vehicle manufa cturer to ensure that this installation does not negatively affect the performance of the required taillamps and signal lamps, or otherwise impair its effectiveness. If the vehicle manufacturer determines that no impairment exists, then it may certify t hat its vehicles comply with all applicable Federal motor vehicle safety standards.

Observing that the product literature depicts the heated taillamp installed in the upper corners of a school bus body, we must also call attention to an additional provision of Standard No. 108. The location depicted is one that is frequently used for t he clearance lamps required by Standard No. 108. Paragraph S4.4 of Standard No. 108 forbids the optical combination of clearance lamps and taillamps. Thus, your lamp cannot optically combine these two functions if it is to be used as new vehicle equipm ent.

Other enclosures to your letter indicate that at present the heated lamp is being installed on buses in use, that is to say, as non-original equipment. The requirements imposed by Standard No. 108 and the Act for aftermarket manufacturers of lighting eq uipment differ from those for original equipment. If the lamp you produce is intended to replace an original equipment certified lamp, it is considered replacement equipment. As a manufacturer of a replacement taillamp or signal lamp, the legal obligati on to produce a complying equipment item falls squarely upon you, as does the certification responsibility. If the lamp is intended only to replace a supplemental lamp, you are not required to certify. However, there may be instances in which your lamp is interchangeable with original certified equipment, and even though you may not intend it as replaceable lighting equipment, you may encounter questions from state and federal authorities if it is not manufactured and certified in accordance with Stan dard No. 108.

3

Finally, you should be aware of your responsibilities under the Act in the event that your products do not comply with Standard No. 108, or incorporate a safety related defect (an example would be the inability of the lens to withstand the heat produced during the lamp's operation without warping or cracking). If you or this agency determine that a noncompliance or safety related defect occurs in any item of replacement equipment that you manufacture, you have the obligation to notify purchasers, and t o remedy the problem through repair, repurchase, or replacement of the item. With respect to original equipment, this obligation falls upon the manufacturer of the vehicle on which it is installed.

If you have any further questions we shall be happy to answer them. We are returning your samples.

Sincerely,

ID: 15753.ogm

J.F. Brownholtz, Ph.D.
Department of Exercise and Sport Sciences
University of Miami
School of Education
P.O. Box 248065
Coral Gables, FL 33124-2040

Dear Dr. Brownholtz:

This responds to your letter to the National Highway Traffic Safety Administration (NHTSA), in which you request that NHTSA test and endorse your product. You have developed an aftermarket supplemental head restraint, the "Neck Saver," which is designed to be installed on existing head restraints in automobiles and other vehicles.

By way of background information, Chapter 301 of Title 49, U.S. Code gives this agency the authority to issue safety standards applicable to new motor vehicles and new items of motor vehicle equipment. Chapter 301 provides that no person shall "manufacture for sale, sell, offer for sale, or introduce or deliver for introduction in interstate commerce, or import into the United States" any new motor vehicle or new item of motor vehicle equipment unless the vehicles or equipment comply with the applicable standard. (See 49 U.S.C. 30112.) NHTSA has no authority under Chapter 301 to approve, certify, or otherwise endorse any commercial product. Instead, Chapter 301 establishes a self-certification process under which each manufacturer is required to certify that each of its products meets all applicable Federal Motor Vehicle Safety Standards. Moreover, NHTSA does not endorse any products.

There is currently no Federal motor vehicle safety standard that is directly applicable to the product you wish to manufacture and sell. Our standard for head restraints (Standard No. 202) applies only to new passenger cars, multipurpose passenger vehicles, trucks and buses with a gross vehicle weight rating (GVWR) of 10,000 pounds or less.

However, there are other Federal requirements that indirectly affect your manufacture and sale of the "Neck Saver." Under Chapter 301, your device is considered to be an item of motor vehicle equipment. As a manufacturer of motor vehicle equipment, you are subject to the requirements in sections 30118-30120 of Chapter 301 concerning the recall and remedy of products with defects relating to motor vehicle safety. In the event that you or NHTSA determines that the "Neck Saver" contains a safety related defect, you would be responsible for notifying purchasers of the defective equipment and remedying the problem free of charge.

It appears that the "Neck Saver" would be installed by the vehicle owner. However, if it were to be professionally installed, Section 30122 of Title 49, U.S. Code provides that a manufacturer, distributor, dealer, or motor vehicle repair business may not knowingly make inoperative any device or element of design installed on or in a vehicle or item of motor vehicle equipment in accordance with a safety standard. For example, a commercial entity must ensure that the addition of the device does not degrade from the safety provided by flammable-resistant materials in the vehicle's interior compartment which have been installed in accordance with Standard No. 302. Installation of rapidly burning materials could vitiate the compliance of the materials which were present in the vehicle at the time of its sale to the first consumer and were certified as meeting FMVSS No. 302. Similarly, a commercial entity must ensure that installation of the device does not affect compliance with Standard No. 202.

However, the prohibitions of Section 30122 do not apply to the actions of a vehicle owner in adding to or otherwise modifying his or her vehicle. Thus, a vehicle owner would not violate Chapter 301 by installing the head restraint, even if doing so would negatively affect some safety feature in his or her vehicle.

NHTSA is currently studying the possibility of proposing changes to Standard No. 202. I am enclosing a copy of a December 19, 1996 request for comments (61 FR 66992) in which the agency requested interested parties to submit their views on a NHTSA Technical Report titled, "Head Restraints-Identification of Issues Relevant to Regulation, Design, and Effectiveness." While the comment period outlined in this notice has closed, I am providing a copy of the report in light of your interest in this subject.

We are also returning herewith the samples of the "Neck Saver" you enclosed with your letter.

Please feel free to contact Otto Matheke of my staff at (202) 366-5253 if you have further questions.

Sincerely,

John Womack
Acting Chief Counsel
Enclosures
ref:202
d.12/18/97

ID: 1932y

Mr. John Schroeter
August Industries
26717 216th Av., S.E.
Maple Valley, WA 98038

Dear Mr. Schroeter:

This responds to your letter asking for information about the application of Federal safety standards to a head restraint that attaches to the rear window of pickup trucks. I regret the delay in responding. I hope the following information is helpful.

By way of background information, the National Highway Traffic Safety Administration (NHTSA) is authorized by the National Traffic and Motor Vehicle Safety Act to issue Federal motor vehicle safety standards that set performance requirements for new motor vehicles and items of motor vehicle equipment. NHTSA is not authorized to certify or approve motor vehicles or motor vehicle equipment for compliance with our Federal motor vehicle safety standards. Instead, under the National Traffic and Motor Vehicle Safety Act (copy enclosed), each manufacturer of a motor vehicle or item of motor vehicle equipment is responsible for certifying that its products meet all applicable safety standards. The following represents our opinion based on the information provided in your letter.

There is currently no Federal motor vehicle safety standard that is directly applicable to the product you wish to manufacture and sell. Our standard for head restraints (Standard No. 202) applies only to completed new passenger cars and not to a head restraint device sold as an item of "aftermarket" equipment for pickup trucks.

However, there are other Federal laws that indirectly affect your manufacture and sale of the head restraint device. Under the Safety Act, your device is considered to be an item of motor vehicle equipment. As a manufacturer of motor vehicle equipment, you are subject to the requirements in sections 151-159 of the Safety Act concerning the recall and remedy of products with defects relating to motor vehicle safety. I have enclosed an information sheet that briefly describes those responsibilities. In the event that you or NHTSA determines that your head restraints contain a safety related defect, you would be responsible for notifying purchasers of the defective equipment and remedying the problem free of charge. Safety Standard No. 302, Flammability of Interior Materials (copy enclosed), would also affect your head restraint if your product is installed by a commercial business on either new or used vehicles. A manufacturer installing your head restraint device on a new truck prior to certifying the truck as complying with all applicable Federal motor vehicle safety standards, as required by the Safety Act, has certain responsibilities relating to that obligation to certify. Standard No. 302 establishes flammability resistance requirements for trucks that must be met by certain vehicle components, including head restraints. The new vehicle manufacturer that installs your product on the new vehicle would have to certify the vehicle's compliance with Standard No. 302, and thus would be required to ensure that the head restraint device conforms to the flammability resistance requirements of the standard.

A commercial business that installs the head restraint on new or used vehicles would be subject to statutory considerations that affect whether the business may install your product on a vehicle without violating the Safety Act. Section 108(a)(2)(A) of the Act states: "No manufacturer, distributor, dealer, or motor vehicle repair business shall knowingly render inoperative ... any 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 ..." This section requires manufacturers, distributors, dealers or motor vehicle repair businesses (i.e., any person holding him or herself out to the public as in the business of repairing motor vehicles or motor vehicle equipment for compensation) installing your head restraint device on new or used vehicles to ensure that the addition of the apparatus would not negatively affect the compliance of any component or design on a vehicle with applicable Federal safety standards. For example, the commercial entity must ensure that the addition of the device does not degrade from the safety provided by flammable-resistant materials in the vehicle's interior compartment which have been installed in accordance with Standard No. 302. Installation of rapidly burning materials could vitiate the compliance of the materials which were present in the vehicle at the time of its sale to the first consumer and were certified as meeting FMVSS No. 302. Section 109 of the Act specifies a civil penalty of up to $1,000 for each violation of /108.

However, the prohibitions of /108(a)(2)(A) do not apply to the actions of a vehicle owner in adding to or otherwise modifying his or her vehicle. Thus, a vehicle owner would not violate the Safety Act by installing the head restraint, even if doing so would negatively affect some safety feature in his or her vehicle.

In addition to the materials described above, I am also enclosing a Federal Register notice (53 FR 50047) that NHTSA issued on December 13, 1988, proposing to extend the applicability of Standard No. 202 to light trucks and vans. NHTSA has proposed to make this extension effective September 1, 1991. We expect to announce the agency's next step in the rulemaking proceeding by this fall.

Please feel free to contact us if you have further questions.

Sincerely,

Stephen P. Wood Acting Chief Counsel

Enclosures

/ref:VSA#202#302 d:8/7/89