ID: 2402y

Mr. Mehdi Rowghani
Dallas European Parts Distributors
1505 Wallace Drive
Carrollton, TX 75006

Dear Mr. Rowghani:

This is in reply to your letter of January 9, 1990, to Taylor Vinson of this Office. You have asked whether "importation and sale of European doors (without reinforcement bars) is in accordance with the rules and regulations of the Department of Transportation."

Your question appears premised upon the fact that many European passenger cars achieve compliance with Federal Motor Vehicle Safety Standard No. 214 Side Door Strength by being equipped with doors incorporating reinforcement bars. However, this standard applies only to new vehicles, and does not extend to replacement parts for such vehicles. Thus, if damage to a vehicle is such that its original door must be replaced, and that door incorporated a reinforcing bar, there is no requirement that the replacement door restore the vehicle to a condition in which it continues to meet Standard No. 214. In short, the importation and sale of a replacement door that does not incorporate a reinforcing bar does not violate any of the statutes, standards, or other regulations administered by this agency.

If the replacement door is intended for use on a passenger car line that is subject to the Federal Motor Vehicle Theft Prevention Standard that this agency administers, however, you should be aware that it must nevertheless be marked with the registered trademark of the manufacturer of the door, or unique identifier if there is no registered trademark, and the letter "R". I enclose a copy of the standard for your information, as this requirement is a relatively new one, and may not be clearly understood. This marking must be on the door before the door is imported into the United States.

Sincerely,

Stephen P. Wood Acting Chief Counsel

Enclosure (Part 541) ref:2l4#54l d:4/9/90

ID: 2403y

Mr. Patrick S. Baran
I.D.E.A.
2340 W. Belmont
Chicago, IL 60618

Dear Mr. Baran:

This is in reply to your letter to Taylor Vinson of this Office, with respect to "D.O.T. guidelines for tail light brightness" with respect to a "brake light for the back of a motor cycle helmet." I regret the delay in responding.

The Department has no authority to "approve" or "disapprove" items of equipment, but we can provide guidance on the relationship of equipment to the Federal motor vehicle safety standards. I enclose a copy of a l982 interpretation with respect to a similar device, a headlamp intended for installation on a motorcycle helmet. It also represents our views with respect to your device. I enclose also a copy of SAE Standard J586c Stop Lamps, which our Rulemaking office promised you.

We note that you use the term "tail light" and "brake light" interchangeably. In seeking State guidance you should be clear as to whether your device indicates the presence of the cyclist (taillamp), or the application of the brakes of the motorcycle (stop lamp), or both.

Sincerely,

Stephen P. Wood Acting Chief Counsel

Enclosure ref:VSA#l08#2l8 d:4/9/90

ID: 2404y

Lewis H. Goldfarb, Esq.
Assistant General Counsel
Chrysler Motors Corporation
l2000 Chrysler Drive
Highland Park, MI 48288-l9l9

Dear Mr. Goldfarb:

This responds to your letter concerning the fuel economy implications of Chrysler's acquisition of American Motors Corporation (AMC). You stated that you were writing to obtain confirmation of Chrysler's "understanding" that fuel economy credits earned by AMC, for exceeding light truck standards in model years l984-86, are now available to Chrysler. You enclosed a memorandum of law explaining your position.

As discussed below, it is our opinion that even if Chrysler is considered the "successor" to AMC under the Motor Vehicle Information and Cost Savings Act, that fact would not result in the conclusion that credits earned, prior to the acquisition, by AMC for exceeding a fuel economy standard could be applied to shortfalls incurred by Chrysler's pre-acquisition fleet, under the three-year carryforward and carryback provisions of the Act and regulations. However, credits earned by AMC could be applied to the pre-acquisition AMC fleet and to the post-acquisition Chrysler/AMC fleet. Also, credits earned by post-acquisition Chrysler/AMC could be applied to the pre-acquisition Chrysler fleet and/or AMC fleet, provided that double counting does not take place. Other issues raised by your letter and legal memorandum are also addressed below.

Section 50l(8) of the Cost Savings Act defines "manufacturer" as follows:

The term "manufacturer" means any person engaged in the business of manufacturing automobiles. The Secretary shall prescribe rules for determining, in cases where more than one person is the manufacturer of an automobile, which person is to be treated as the manufacturer of such automobile for purposes of this part. Such term also includes any predecessor or successor of such a manufacturer to the extent provided under rules which the Secretary shall prescribe.

One issue raised by Chrysler's memorandum is whether Chrysler is the successor of AMC. The term "successor," as used in the definition of "manufacturer" quoted above, is not defined in the statute or in agency regulations. Under general principles of corporate law, the term "successor" ordinarily refers to a corporation which, through amalgamation, consolidation, or other legal succession, becomes invested with the rights and assumes the burdens of another corporation.

Based on our general understanding of Chrysler's acquisition of AMC, we have no reason to doubt your conclusion that Chrysler is the successor of AMC. However, your letter does not provide specific facts concerning the structure of Chrysler's acquisition of AMC or whether Chrysler is invested with the rights and has assumed the burdens of AMC. In the absence of such facts, we are unable to provide an opinion that Chrysler is the successor of AMC. However, for purposes of this letter, it will be assumed that a factual showing can be made that Chrysler is the successor to AMC.

It should be noted that the mere fact that one corporation acquires another corporation does not necessarily mean that the acquiring corporation is a "successor." In the context of the Cost Savings Act, manufacturer A may be wholly owned by manufacturer B, yet still be a manufacturer itself. Under sections 503(a) and (c), however, the automobiles of such related manufacturers would be combined for purposes of calculating average fuel economy.

Another issue raised by Chrysler's memorandum is whether Chrysler and AMC became the same manufacturer for fuel economy purposes for model year l987. According to the memorandum, Chrysler agreed to acquire AMC in the spring of l987, and the transaction closed on August 6, l987. The memorandum concludes that Chrysler and AMC became the same manufacturer for fuel economy purposes in model year l987.

Based on the above facts, it is our opinion that all of Chrysler's and AMC's vehicles should be treated as manufactured by the same manufacturer for model year l987. Fuel economy standards apply to passenger automobiles manufactured by a manufacturer, for a particular model year. See section 502(a)(l). Moreover, average fuel economy is calculated based on the total number of passenger automobiles manufactured in a given model year by a manufacturer. See section 503(a)(l). Under section 503(c), the term "passenger automobiles manufactured by a manufacturer" includes all automobiles manufactured by persons who control, are controlled by, or are under common control with, such manufacturer." Since Chrysler controlled AMC prior to the end of the l987 model year, and since fuel economy standards apply to particular model years as a whole and not to separate parts of a model year, it is our opinion that all of the vehicles produced by both Chrysler and AMC for model year l987 shall be treated as if manufactured by the same manufacturer, i.e., placed into one fleet. Otherwise, one or both of the manufacturers would have two separate CAFE values, pre-acquisition (or pre-control) and post-acquisition (or post-control), for the same model year.

We will now address generally the issue of how credits may be used where one manufacturer is the successor of another. In discussing the issue, we will refer to the following hypothetical example: A and B are both car manufacturers. After consolidation, A is the only surviving corporation and is invested with the rights and assumes the burdens of B. Thus, A is the "successor" of B.

While this example and subsequent discussion is for passenger automobiles, the relevant requirements concerning the earning and availability of credits are essentially identical for passenger automobile standards and light truck standards. Compare section 502(l)(1)(B) and 49 CFR Part 535, and see 45 FR 83233-36, December l8, l980. Thus, our analysis for passenger automobile standards is also relevant to light truck standards.

Section 502(l)(1)(B) states:

Whenever the average fuel economy of the passenger automobiles manufactured by a manufacturer in a particular model year exceeds an applicable average fuel economy standard . . ., such manufacturer shall be entitled to a credit calculated under subparagraph (C), which--

(i) shall be available to be taken into account with respect to the average fuel economy of that manufacturer for any of the three consecutive model years immediately prior to the model year in which such manufacturer exceeds such applicable average fuel economy standard, and

(ii) to the extent that such credit is not so taken into account pursuant to clause (i), shall be available to be taken into account with respect to the average fuel economy of that manufacturer for any of the three consecutive model years immediately following the model year in which such manufacturer exceeds such applicable average fuel economy standard.

We note first that credits earned by a particular manufacturer are only "available to be taken into account with respect to the average fuel economy of that manufacturer," for any of the three model years before, or after, the model year in which the credits are earned. (Emphasis added.) In the example set forth above, B is no longer a manufacturer under the Cost Savings Act. (Indeed, it is no longer a "person" under section 50l(8).) Thus, in the absence of some provision concerning "successors," any unused credits that B had earned prior to the consolidation would expire unused, since the only manufacturer to which they are available no longer exists. However, for some purposes B continues to exist as part of A, its "successor."

Section 50l(8)'s definition of "manufacturer" does not provide that the term "manufacturer" necessarily includes any precedessor or successor but instead provides that the term does so "to the extent provided under rules which the Secretary shall prescribe." This provision was added by the Automobile Fuel Efficiency Act of l980 as a conforming amendment to the section concerning modification of local content requirements to encourage domestic production of fuel efficient automobiles and not to the section concerning credits. The legislative history does not provide any indication as to why the provision was added, and, to date, NHTSA's administration of the statutory provisions concerning modification of the local content requirements has not turned up a situation for which such rules would be relevant. Should rules be issued under section 50l(8), NHTSA would do so by notice-and-comment rulemaking, taking account of the purposes of that section and the statutory scheme as a whole.

Notwithstanding the absence of rules, we do not believe that Congress intended to require the forfeit of a manufacturer's unused credits in a situation where that manufacturer's substance continues to exist as part of a "successor." Thus, taking account of section 50l(8) and the statutory scheme as a whole, we conclude that, in the example set forth above, B can be deemed as continuing to exist as part of A, from the time of succession.

This conclusion does not, however, permit the general integration of A's and B's credits and shortfalls. Under section 502(l)(1)(B), credits earned by a particular manufacturer are only "available to be taken into account with respect to the average fuel economy of that manufacturer." Since B's existence as part of A only dates from the time of succession, B is not the same manufacturer as A prior to the time of succession. Thus, any credits earned by B would only be available to offset A's shortfalls for the model years during which B exists as part of A, since it is only at that time that the credits earned by B and applied to A can be considered to be taken into account with respect to the average fuel economy of "that manufacturer." Similarly, the only credits earned by A which would be available to B would be those credits earned during the time when B exists as part of A.

The general integration of A's and B's credits would be inconsistent with the basic structure of section 502(l)(l). Assume, for example, that A and B are separate manufacturers for model years 1 through 6, and A is the successor of B for model year 7. If general integration of credits were permitted, credits earned by B in model year 4 could be applied to A's CAFE for model years l-6, as well as model year 7. However, the structure of section 502(l)(l) does not permit this result. Under paragraph (B)(i), any credits earned by B in model year 4 are available to be carried back with respect to B's CAFE for any of model years l, 2 and 3. To the extent that such credits are not so used, paragraph (B)(ii) makes those credits available to be carried forward with respect to B's CAFE for any of model years 5, 6 and 7. In order for credits earned by B in model year 4 to be applied to A's CAFE for model years l-6, B's credits would first have to be carried forward to model year 7 (the model year where A is B's successor) and then be carried back to model years l-6 (for application to A's CAFE), a process which has no statutory basis.

We will now apply the general analysis discussed above to the particular facts cited in Chrysler's letter. Prior to MY l987, Chrysler and AMC were two separate manufacturers. Chrysler acquired AMC during MY l987, and became the "successor" to AMC at that time. Under section 502(l)(1)(B), credits earned by a particular manufacturer are only "available to be taken into account with respect to the average fuel economy of that manufacturer." Since AMC's existence as part of Chrysler only dates from MY l987, AMC was not the same manufacturer as Chrysler prior to MY l987. Thus, any credits earned by AMC would only be available to Chrysler to offset CAFE shortfalls incurred in the model years during which AMC exists as part of Chrysler, i.e., MY l987 and thereafter, since it is only at that time that the credits earned by AMC and applied to Chrysler can be considered to be taken into account with respect to the average fuel economy of "that manufacturer." Similarly, the only credits earned by Chrysler which would be available to AMC would be those credits earned during the time when AMC exists as part of Chrysler, i.e., credits earned in MY l987 and thereafter.

Chrysler's memorandum argues that section 502(l) must mean more than that the predecessor's credits can be carried forward and used for the successor firm for l987 and subsequent years. The memorandum states:

"Manufacturer" is a defined term, and it must be read in light of its definition. The only satisfactory reading of this provision is that the reference to "that manufacturer" includes its predecessors and successors--that is, the successor firm may use the credits available to it for calculating its own fuel economy for l987 and subsequent model years or that of its predecessors, including pre-acquisition Chrysler, for the years before l987. On any other reading, the definition of "manufacturer" would be meaningless, and the term would mean different things in different places in the Act.

Chrysler also asserts that its approach would represent a "literal" reading of the Act, and that the agency should not seek to import into the carryover scheme a qualification on the use of credits that Congress did not impose.

We believe that Chrysler's analysis is incorrect since it does not take into account fundamental differences in the timing of the earning of the credits and of Chrysler's becoming a successor. Chrysler was not the successor to AMC during the model years prior to Chrysler's acquisition of AMC in which AMC earned credits. In MY l984, for example, Chrysler and AMC were two separate manufacturers.

In particular, Chrysler is incorrect in concluding that AMC's l984-l986 credits can be applied to Chrysler for model years before l987. Chrysler cannot succeed to rights greater than AMC possessed at the time of the acquisition. As of its acquisition in MY l987, AMC's "rights" as to its MY 1984 credits were to apply them to its own fleet in MY l981-l983 and l985-l986 (since it had no successor in that time period) and to apply them to itself/successor in MY l987.

In construing the Act, we believe that it is appropriate and necessary to read its provisions in the correct temporal context. Thus, we do not believe that the term "manufacturer" means different things in different places in the Act, but instead recognize that corporate relationships, and thus manufacturer identities, may differ for different model years.

Moreover, we believe that Chrysler's memorandum itself construes the term "manufacturer" differently in different parts of the Act. As indicated above, section 502(l)(l)(B) states that "whenever the average fuel economy of the passenger automobiles manufactured by a manufacturer in a particular model year exceeds an applicable average fuel economy standard . . ., such manufacturer shall be entitled to a credit . . . ." Emphasis added. In concluding that Chrysler is entitled to AMC's l984 credits, Chrysler's memorandum apparently reads "manufacturer" to mean "AMC only" the first time it is used in this section, and "AMC and its future successors" the second time it is used.

We also note that Chrysler's current position would lead to absurd results. For example, if the term "manufacturer" were consistently read to include future successors, Chrysler's acquisition of AMC would presumably require calculation of new CAFE values, for the combined Chrysler/AMC fleet, for each model year all the way back to the beginning of the CAFE program. See section 503(a)(l). Moreover, if a company which paid penalties in a particular model year were later acquired by another company which had earned credits in that same model year, but never used the credits, under Chrysler's retroactive successorship interpretation NHTSA could be required to refund those penalties, even if the acquisition took place ten or twenty years later. The Cost Savings Act was designed to encourage manufacturers to improve their CAFE performance; not to allow them to avoid penalties for non-compliance by acquiring companies that had, independently, earned credits in prior years.

Finally, we reject the argument that we are importing into the carryover scheme a qualification on the use of credits that Congress did not impose. Congress expressly chose to limit the ability to use credits to the manufacturer that exceeded an applicable average fuel economy standard and thereby earned the credits. Credits earned by AMC are only available to Chrysler for the model years during which AMC exists as part of Chrysler, since it is only at that time that the credits earned by AMC can be considered as being "taken into account with respect to the average fuel economy" of the manufacturer that earned them.

Sincerely,

Stephen P. Wood Acting Chief Counsel ref:CSA d:4/4/90

ID: 2405y

His Excellency
D. H. Burney
Ambassador of Canada
501 Pennsylvania Ave., N.W.
Washington, D.C. 20001

Dear Mr. Ambassador:

Thank you for your letter of March 16, 1990, expressing the concern of your country about this agency's new regulations on importation of motor vehicles and equipment.

Canada is concerned that, under P.L. l00-562, the Imported Vehicle Safety Compliance Act of l988, Canadian vehicle brokers, dealers, and private citizens will not, for all practical purposes, be able to export new or used Canadian market vehicles to the United States. It is concerned further that Canadian individuals and firms will be precluded from providing conformance goods and services for vehicles exported to the United States. Canada therefore requests that this agency modify its regulations with respect to Canadian market vehicles, recognizing their near-compliance with the Federal Motor Vehicle Safety Standards, and accommodating their entry in the least costly and burdensome manner. You have five specific requests, and I shall address each.

Preliminarily, I want to note several things. First, my assurance that this agency gave very careful consideration to the concerns of Transport Canada in adopting final regulations under the 1988 Act, as well as those expressed by Canadian companies that commented on the proposed regulations. As we noted in the notices proposing and adopting those regulations, our discretion to make changes in the regulations was narrowly circumscribed in many instances by the detailed language of that Act. On a more technical level, I want to note that your understanding of our new regulations expressed in paragraphs (a) through (g) on page 2 of your letter is essentially correct. However, with respect to your paragraph (d), please note that determinations of vehicle eligibility for importation may also be made by me as Administrator on my own initiative, and need not be pursuant to a petition. Also, as to paragraph (e), I would like to point out that the bond processing fee, proposed to be $125, is only $4.35 (however, under paragraph (f) the bond is not less than l50% of the dutiable value of the vehicle).

Your first request is that the agency "recognize Canadian market vehicles as a special class of non-complying vehicles requiring only minor changes to meet the FMVSS." The l988 Act was enacted on October 31, l988, and became effective January 31, l990. I regret to say that none of its provisions authorize the agency to directly distinguish between non-complying vehicles of Canadian manufacture and those originating in other countries.

However, the eligibility provisions that you reference in paragraph (d) do permit a basis for minimizing some of the burden that the l988 Act imposes. We begin with the premise that if a Canadian vehicle has not been certified by its manufacturer as in conformance with U.S. standards, then it cannot be presumed to conform in all respects to the U.S. standards. Canadian and U.S. safety standards do differ in some ways (e.g., mandatory automatic crash protection for U.S. market passenger cars manufactured on and after September 1, l989). Nevertheless, we believe that enough similarity may exist to support a finding that a Canadian passenger car is "substantially similar" to a U.S. passenger car, justifying a determination that it is eligible for importation into the United States, and capable of conversion to meet U.S. safety standards. Further, such a finding may be made on our own initiative. I am pleased to inform you that NHTSA is publishing a notice of tentative determination that would cover all passenger cars certified as meeting the Canadian Motor Vehicle Safety Standards, and that were manufactured up to September 1, l989. A copy of the notice is enclosed for your reference. After receiving and considering public comment, we will make a final decision on this matter. If we decide to adopt our tentative determination as a final determination, your first request would, in effect, be granted.

Your second request is that we "exempt such vehicles from the fees." These fees are the ones mentioned in paragraphs (c), (d), and (e) of your letter, the registered importer annual registration fee, the vehicle eligibility petition fee, and the bond processing fee. Each fee is specifically required by the l988 Act, and must be established in advance of the fiscal year in which it is effective. The registered importer fee is required to cover agency costs for administration of the registration program. The vehicle eligibility fee is required to cover the agency's costs in making and publishing eligibility determinations. The bond processing fee is required to reimburse the U.S. Customs Service for its costs in processing the agency's conformance bond that accompanies each nonconforming vehicle. Congress provided no authority to waive these fees, or to modify them during the fiscal year that they are in effect. Thus, the fees that have been established must remain in effect until October 1, l990. When we begin the review that will lead to next year's fees, we shall be happy to consider whether some provision may be made for Canadian market vehicles. In the meantime, I would like to point out that under our notice of tentative determination on eligibility of Canadian vehicles, the fee of $l,560 would cover the blanket determination of all passenger cars, and would not be applied to each individual model and model year of passenger car. This action would effectively moot Canada's second request that Canadian market passenger cars be exempted from the determination fee.

Canada's third request is to "exempt them from the bonding requirement." The l988 Act requires the importer of a non-conforming vehicle to furnish an appropriate bond to ensure that the vehicle will be brought into compliance, or will be exported or abandoned to the United States. This is not a new requirement; ever since January 1, l968, each nonconforming vehicle, Canadian or otherwise, has been required to be accompanied by a conformance bond upon its entry into the United States. The l988 Act provides us with no authority to exempt Canadian vehicles, and does not distinguish degrees of nonconformity. Therefore, we believe that we are unable to grant Canada's request, absent specific authorization by the U.S. Congress.

The fourth request is to "exempt them from the requirement that they be imported by registered importers, who must be U.S. citizens." This request raises two issues: whether Canadian market cars may be imported by persons other than registered importers, and whether registered importers must be U.S. citizens. As to the first issue, the l988 Act does allow one alternative to direct importation by a registered importer. That is, a person other than a registered importer may import a nonconforming vehicle if he has a contract with a registered importer to perform conformance work. This would allow a Canadian citizen to import a Canadian market car, without himself becoming a registered importer.

The second issue is whether a Canadian company is permitted to be a registered importer. We believe that a registered importer is a person who is physically present in the territory in which importation occurs, as opposed to an exporter, who is outside that territory. While we are not conversant with the laws of the individual States, we believe that a Canadian company could qualify to do business within an individual State, and become a registered importer. Thus, it is not necessary to be a U.S. "citizen", but it is necessary to be subject to U.S. jurisdiction. The l988 Act requires the registered importer regulation to contain requirements for recordkeeping, and inspection of records and facilities. Since the jurisdiction of the National Traffic and Motor Vehicle Safety Act does not extend beyond the boundaries of the United States, we believe that it would be difficult to enforce our provisions on inspection of premises, documents, etc. in the territory of another country.

This brings us to your fifth and final request, that we "allow modifications to be done in either the United States or Canada." Under current regulations, conformance work is permitted to be performed outside the United States. However, vehicles modified in this fashion must be admitted under the same procedures as if they had not been modified. This allows the agency to review the documents on pre-importation conversion work, to ensure that it has been satisfactorily accomplished, before the conformance bond is released. Accordingly, we believe that the concern underlying this request has already been accommodated.

If, after reviewing this letter, you have further suggestions for reducing the burdens that the new law may have imposed on importations of Canadian-manufactured vehicles, I would be happy to consider them.

Sincerely,

Jerry Ralph Curry

Enclosure ref:59l#592#593#594 d:4/24/90

ID: 24061version2

Mr. Jim Freibirger
Senior Staff Engineer
Thomas Built Buses
1408 Courtesy Road
High Point, NC 27260

Dear Mr. Freibirger:

This responds to your letter requesting an interpretation of Federal Motor Vehicle Safety Standard No. 221, School Bus Body Joint Strength. The joint at issue is formed in part by a steel "wire trim cover" that covers a wiring harness just above the window header. You ask whether the joint is a body panel joint under amendments to Standard No. 221 that become effective January 1, 2003. (See 66 FR 64358, December 13, 2001, copy enclosed.) As explained below, the answer is yes.

The joint at issue will be a body panel joint under the standard.^[1] "Body panel joint" will mean: "the area of contact or close proximity between the edges of a body panel and another body component, including but not limited to floor panels, and body panels made of composite materials such as plastic or plywood, excluding trim and decorative parts which do not contribute to the strength of the bus body, members such as rub rails which are entirely outside of body panels, ventilation panels, components provided for functional purposes, and engine access covers." The standard will require that (S5.1): "Except as provided in S5.2, each body panel joint, including small, curved, and complex joints, when tested in accordance with the procedure of S6, shall hold the body panel to the member to which it is joined when subjected to a force of 60 percent of the tensile strength of the weakest joined body panel determined pursuant to S6.2." The exceptions specified in S5.2 will be:

(a) Any interior maintenance access panel or joint which lies forward of the passenger compartment.

(b) Any interior maintenance access panel within the passenger compartment that does not exceed 305 mm [12 inches] when measured across any two points diametrically on opposite sides of the opening.

(c) Trim and decorative parts which do not contribute to strength of the joint, support members such as rub rails which are entirely outside of body panels, doors and windows, ventilation panels, and engine access covers.

The joint in question would not fall within any of the exceptions specified in S5.2. It is not a maintenance access panel (S5.2(a) and (b)). The amendments include a definition of "maintenance access panel" which is: "a body panel which must be moved or removed to provide access to one or more serviceable components." "Serviceable component" is defined as: "any part of the bus, of either a mechanical or electrical nature, which is explicitly identified by the bus chassis and/or body manufacturer in the owners manual or factory service manual as requiring routine maintenance actions at intervals of one year or less. Tubing, wires and harnesses are considered to be serviceable components only at their attachments." Under these definitions, your body panel joint cannot be considered a maintenance access panel because it would be covering the entire wiring harness, not just the attachment points. Further, the joint is not comprised of a trim and decorative part that does not contribute to the strength of the joint (S5.2(c)). Your joint is a structural joint because its steel part forms part of the integral inner shell. That is, your joint forms part of the steel structure that attaches to the roof bow, and contributes to the strength of the entire bus body.

We further note that in the event of a crash, shearing forces on a steel joint could result in jagged edges to the steel, which may cause serious injury to children who might contact the edges. You suggest that the joint in question should be excluded because in an August 31, 2000 letter to Blue Bird Body Company, NHTSA excluded a wire trim part. The wire trim part that we addressed in our August 2000 letter differs from the body panel joint at issue. Both your joint and Blue Birds trim are placed above the school bus window. However, with regard to Blue Birds trim, we determined that "plastic wire trim parts at issue do not contribute to the structural integrity or the joint strength of the bus." The Blue Bird trim also was not part of the integral inner shell. In contrast, Thomas Builts joint is a structural joint because it forms part of the integral inner shell. Since your joint forms part of the structure that attaches to the roof bow, and contributes to the strength of the entire bus body, it is a "body panel joint" within the meaning of Standard No. 221.

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

Sincerely,
John Womack
Acting Chief Counsel
Enclosures
ref:221
d.6/25/02

^[1] Note that we also consider the joint in question to be a body panel joint under the existing standard. See September 2, 1976 letter to the Blue Bird Body Company (copy enclosed) pertaining to "the area of contact between headlining panels and the header over the windows."

ID: 24065.ztv

D.W. Robertson, Captain
Commonwealth of Virginia
Department of State Police
491 Southlake Boulevard
Richmond, VA 23236





Dear Captain Robertson:

This is in reply to your letter of January 28, 2002, to Taylor Vinson of this Office. You reported receiving inquiries regarding the legality of brush guards. You further reported that courts in Virginia differ on whether Section 46.2-1002 of the Code of Virginia applies to brush guards, and that "the question they have is, does the brush guards diminish the light output?"

In your view, the brush guard raises three questions. We shall answer each in turn.

"1. Are brush guards on motor vehicles, both front and rear, in compliance with FMVSS 108?"

We would rephrase the question as whether motor vehicles equipped with front and rear brush guards are in compliance with Federal Motor Vehicle Safety Standard (FMVSS) No. 108. We addressed this issue in a letter of October 27, 1994, to Thomas L. Wright of the New Jersey Division of Motor Vehicles. I enclose a copy for your reference. In brief, paragraph S7.8.5 of FMVSS No. 108 prohibits new motor vehicles from being sold with "any styling ornament or other feature" in front of a headlamp lens; we regard a brush guard as an "other feature" of the type prohibited by S7.8.5. The letter notes that there is no similar direct prohibition in FMVSS No. 108 regarding other vehicle lamps, including front lamps, but that such other lamps must comply with the photometric requirements of FMVSS No. 108 with the brush guards in place. Thus, the installation of front brush guards in front of a lamp other than a headlamp, or rear brush guards, does not per se create a noncompliance with FMVSS No. 108.

"2. Do brush guards impair the effectiveness of lighting equipment required by FMVSS 108?"

Front brush guards in front of headlamp lenses are prohibited by S7.8.5. As the 1994 letter indicates, other front lamps and rear lamps must comply with photometric requirements with the brush guards in place, and compliance with FMVSS No. 108 would depend on the design and location of the specific brush guard. Compliance also requires that rear lamps meet visibility requirements at certain angles to the right and left of the vehicle.

"3. Are brush guards allowed to be installed on new vehicles by manufacturers?" If not, why?"

A manufacturer must certify that the vehicles it manufactures comply with all applicable Federal motor vehicle safety standards. Thus, a manufacturer could not certify compliance with FMVSS No. 108 if a vehicle is equipped with brush guards in front of headlamp lenses as prohibited by S7.8.5. The manufacturer could certify compliance with FMVSS No. 108 if brush guards are in front of lamps other than headlamps and if it determines that those lamps meet all applicable photometric and visibility requirements with the brush guards installed.

FMVSS No. 108 is not the only Federal motor vehicle safety standard for which compliance may be affected by installation of front brush guards. I enclose a copy of our letter of July 3, 1997, to Steve Brookmire, discussing the relationship of brush guards to airbag deployment under FMVSS No. 208.

Sincerely,

Jacqueline Glassman
Chief Counsel

Enclosures
ref:108
d.4/5/02

ID: 2406y

Mr. J. Douglas Smith
Engineering Manager
Duralite Truck Body and Container Corp.
1300 Bush Street
Baltimore, MD 21230

Dear Mr. Smith:

This is in reply to your letter to Taylor Vinson of this Office. I regret the delay in responding.

You have asked for an interpretation of Motor Vehicle Safety Standard No. l08 as it pertains to the location of clearance lamps. You stated your understanding that "if a chassis cab is equipped with clearance and marker lamps, it is not necessary to add a second set of two lamps to act as clearance lamps to the front wall of the truck body." This is not correct. A chassis cab is an incomplete motor vehicle, and not required to comply with Standard No. l08. However, when the chassis cab is completed, the completed vehicle must comply, and be certified by its final-stage manufacturer as complying, with Standard No. l08 (and all other applicable Federal motor vehicle safety standards). Standard No. l08, in pertinent part, requires front clearance lamps to be mounted to indicate the overall width of the vehicle, and as near the top as practicable.

This means that if clearance lamps have been mounted on the chassis cab, and if in that location they do not indicate the overall width of the completed motor vehicle and are not as near the top of the completed motor vehicle as practicable, the final stage manufacturer must add a set of clearance lamps to the front of the truck body to meet that requirement. In this event, the cab-mounted clearance lamps may be disconnected or removed.

However, this is not true with respect to the mounting of identification lamps on chassis cabs. Standard No. l08 allows them to be mounted as close as practicable to the top of the cab as an alternative to the top of the vehicle. Further, on truck tractors, clearance lamps mounted on the cab may be located to indicate the width of the cab rather than the overall width of the vehicle.

I hope this has answered your question.

Sincerely,

Stephen P. Wood Acting Chief Counsel

/ ref: l08 d:4/25/90

ID: 2407y

Dipl.-Ing. H. Westermann
Hella KG Hueck & Co.
Postfach 28 40
4780 Lippstadt
West Germany

Dear Herr Westermann:

This is in reply to your letter of February 21, l990, to Taylor Vinson of this Office, requesting an interpretation of Motor Vehicle Safety Standard No. 108 with respect to whether two designs for center highmounted stop lamps (CHMSL) you enclosed are permissible. You wish to know whether the ECE definition of "lamp unity" can be applied, and whether the designs form a CHMSL unity in the sense of Standard No. 108.

The question, as we see it, is not whether the ECE definition can be applied, but whether the two designs you submitted would meet the clearly expressed requirements of Standard No. 108. The standard requires that there be a single lamp, that it have an effective projected luminous area of not less than 4 1/2 square inches, that its signal be visible through a horizontal angle from 45 degrees to the left to 45 degrees to the right of the longitudinal axis of the vehicle, and that it provide specified minimum photometric values at 13 specific test points.

The design represented in Enclosure l appears to pass through the center of the lamp, at the H-V test point, thus affecting compliance of the lamp. Measurement at test points can only be determined by photometric testing. The design represented in Enclosure 2 would not comply with the standard. It is, in effect, two lamps mounted symmetrically about the vertical centerline. Standard No. l08 requires a single lamp, to be mounted on the vertical centerline.

Sincerely,

Stephen P. Wood Acting Chief Counsel

ref:l08 d:4/25/90

ID: 2408y

Mr. Richard L. Martinez
Santa Fe Insurance Agency, Inc.
231 Washington Avenue
Santa Fe, NM 87501-1926

Re: Europa International, Inc.

Dear Mr. Martinez:

This is in reply to your letter of March 9, l990, to Taylor Vinson of this Office, with respect to "the $2,000 liability policy" that you discussed with him. You have asked four questions with respect to this subject on behalf of a client who intends to apply for recognition as a registered importer by this agency, and as an independent commercial importer (ICI) under EPA regulations.

Initially, let me provide you with some background information. Under the National Traffic and Motor Vehicle Safety Act, specifically Title l5, United States Code, Section 1397(c)(3)(D)(ii), the Department of Transportation is required to prescribe by regulation "provisions for ensuring that the [registered] importer (or any successor in interest) will be able technically and financially to carry out the importer's responsibilities under part B of this title (relating to discovery, notification, and remedy of defects)." These responsibilities primarily are to notify vehicle owners in the event that either a safety related defect or a noncompliance with a Federal motor vehicle safety standard is determined to exist in the owner's vehicle, and to remedy the situation.

In developing a regulation to implement the statutory requirement, the agency examined the regulations of the EPA pertaining to ICIs. In a final rule published on September 25, l987 (52 FR 36136), EPA required ICIs to provide to vehicle or engine owners warranties, and to ensure that the warranties "are insured by a prepaid mandatory service insurance policy underwritten by an independent insurance company", and "are transferable to each successive owner . . . ." (40 CFR 85.1510(b)(2)). In commenting on EPA's proposed regulation, the State of California had noted that CARB's own new regulation addressing non-conforming vehicles required modifiers to post a prepaid surety bond in the amount of $1,000 per vehicle to cover its obligation to perform recalls, or alternatively, to purchase insurance which will cover the modifier's recall obligation. The Department of Transportation, wishing to conform as closely as possible to procedures already in practice for grey market importers who were ICIs, proposed and adopted 49 CFR 592.6(h), requiring registered importers to "maintain in effect a prepaid mandatory service insurance policy underwritten by an independent insurance complany as a guarantor of its performance under paragraph (f) of this section." (which relates to notification and remedy).

With this background in mind, I shall reply to your four questions:

"1. Is it required that the term of the policy be for eight years from the date of purchase/sale?"

In essence, yes. Under the Vehicle Safety Act, manufacturers are required to provide remedy without charge for a period of 8 years following the first purchase of a vehicle (however, there is no limit on the time for notification). The general requirement for registered importers, established by Section 592.6(f)(2)(i), is that the obligation to provide remedy without charge shall not apply if the noncompliance or safety related defect exists in a motor vehicle whose first sale after importation occurred more than 8 calendar years before notification respecting the failure to comply is furnished by the registered importer to vehicle owners.

However, during the 8-year period following sale after importation, the registered importer is not obligated to provide repair without charge if two factors are present. The first is that the condition is a safety related defect that is attributable solely to the original manufacturer of the vehicle, and not to the registered importer. The second is that the date of the original first purchase of the vehicle, if known, or, if not known, the date of manufacture, as determined by the Department of Transportation, is more than 8 years from the date on which notification is furnished by the registered importer to vehicle owners.

"2. The limit is $2,000. Would that apply annually or would it be for the entire eight-year period? The reason for this question is that the companies are wondering whether or not this is a cumulative limit, e.g., $2,000 x eight years = $16,000."

The purpose of the policy is to ensure that any noncompliance or safety related defect that is determined to exist in a vehicle may be remedied without charge to the vehicle owner. If the registered importer is financially unable to effect remedy, then the policy is intended to cover the cost of remedy. The most usual form of remedy is repair. Pursuant to comments received during the course of rulemaking that $2,000 appeared to be the uppermost sum necessary to repair a single noncompliance or safety related defect, the agency adopted section 592.5(a)(8) stating that the policy is "in an amount that equals $2,000 for each motor vehicle . . . ." The answer to your question can be expressed in the following example. If a registered importer becomes insolvent in the second year following sale of the vehicle, for the next 6 years the policy should be available to any owner of the vehicle to cover the costs of repairing any safety related defect or noncompliance determined to exist in the vehicle, with a limit of $2,000 on the cost of correcting any such defect or noncompliance covered by a single campaign. Records of past remedial campaigns are available if insurance companies wish to study the types of noncompliances and safety related defects that have occurred over the years, as well as the model and model years involved. In our judgment, the cost of each repair has been far less than $2,000. If repair is impossible, alternative forms of remedy established by statute are replacement with a vehicle of equivalent value, or repurchase of a vehicle. Obviously this form of remedy cannot occur if the registered importer has gone out of business.

"3. You mentioned that the policy was to cover non-compliance or safety defect situations. What are areas to be covered: emissions controls, latent defects, brake problems, warranty situations such as drive train, etc.?"

Each system, part, or component of a motor vehicle is covered by the remedial authority. If a component is part of a system necessary for compliance with a Federal motor vehicle safety standard, and the vehicle does not comply with that standard because of the design or manufacture of that component, replacement of the component with a satisfactory one would be the object of a remedial campaign. For example, if a vehicle could not meet the stopping distance requirement of Standard No. l05 Hydraulic Brake Systems, and that failure was due to the inadequacy of the brake lining, the object of the campaign would be to recall all affected vehicles and replace the brake lining with one by which the vehicle would comply.

The statute defines a defect as one that is inclusive of any defect in performance, construction, components, or materials in motor vehicles or motor vehicle equipment. But only defects that are determined to be safety related require correction. The question of whether a defect is safety related depends upon the facts of the individual case. Generally, defects in emission controls are not safety related, nor are "warranty situations such as drive trains". Determinations of the existence of noncompliances or safety related defects are made by the registered importer, the Department of Transportation, or the original manufacturer of the vehicle.

"4. Europa is looking into whether or not MBNA would provide a warranty policy [for the G-wagon multipurpose passenger vehicle not sold in the United States] as they currently do for their private passenger vehicles. The present warranty covers for a 12/12 plan. If they were to extend this, is it possible that that could be acceptable as an alternative to the $2,000 limit?"

We doubt that MBNA would be willing to extend any type of warranty to a vehicle that is not originally manufactured by its parent company to comply with Federal safety standards, that it does not import, and that is not sold through its dealers. Further, such a vehicle could not be imported into the United States unless the Department of Transportation had determined that it was capable conformance to the Federal motor vehicle safety standards.

However, assuming that the G-wagon is deemed eligible for entry and that MBNA is willing to extend a warranty to it, there is no legal reason why MBNA could not assume responsibility for remedial work without charge in the event the registered importer were unable to provide it, whether in the form of an express warranty, or other document.

I hope that this answers your questions.

Sincerely,

Stephen P. Wood Acting Chief Counsel

ref:592 d:4/25/90

ID: 24095_Sobler_vests_above_50lbs

Nathan Sobler, GM
NFC Industries, Inc.
Potters Lane North
Plumsteadville, PA 18949

Dear Mr. Sobler:

This responds to your letter asking two questions about the requirements of Federal Motor Vehicle Safety Standard No. 213, "Child Restraint Systems" (49 CFR 571.213), as applied to restraint vests used on school buses. I apologize for the delay in responding.

Question 1. It is our understanding that a requirement of Standard No. 213 is that the device not be designed to have any means of being attached to the seat back or cushion. Is it true, then, that any restraint system that attaches to the seat back or cushion of a school bus seat would automatically fail to comply with Standard No. 213?

We believe you are asking about statements made in an August 31, 2001, letter to Ms. Kathy Durkin about a passenger support vest manufactured for use on school buses (copy enclosed). In that letter, the agency discussed a requirement in Standard No. 213 (S5.3.1 of the standard) that had prohibited child restraints from having any means designed for attaching the system to a vehicle seat cushion or vehicle seat back (excluding components designed to attach to a child restraint anchorage system, 49 CFR 571.225). The National Highway Traffic Safety Administration (NHTSA) had adopted the prohibition against attaching child restraints to vehicle seat backs because the agency was concerned that a vehicle seat back might not be able to withstand the additional load on it from an attached child seat in a crash.

NHTSA has recently amended S5.3.1 of Standard No. 213 on an interim basis to exclude all vests manufactured for use on school bus seats from the prohibition (see enclosed Interim Final Rule, Request For Comments; October 22, 2002, 67 FR 64818). On February 1, 2003, the exclusion becomes limited to vests that bear a specific warning label informing users that the vest must be used only on school bus seats and that the seats directly behind the child wearing the seat-mounted vest must be either unoccupied or occupied by restrained passengers.The exclusion will terminate on December 1, 2003. After reviewing the public comments on the interim final rule, NHTSA will decide whether to issue a final rule excluding these vests from the prohibition on a permanent basis.

In the meantime, if you have a question about the attachment mechanism of a specific restraint, please feel free to ask for an interpretation of the requirement as applied to that specific design.

Question 2. A large number of the restraint vests used in the school transportation industry are used for children much heavier than fifty pounds. In many cases they are used on children with mental or physical conditions which require some form of physical restraint to protect themselves and others. [T]he restraint systems we manufacture are all labeled with advisories that they are not intended to be used as, or in place of, seat belts. If the restraint is designed and used for children weighing over fifty pounds, regardless of their weight, does Standard No. 213 apply? If not, is there any standard which would govern the use of restraint systems for children exceeding a weight of fifty pounds?

Paragraph S4 of Standard No. 213 defines a child restraint system as "any device, except Type I or Type II seat belts, designed for use in a motor vehicle to restrain, seat, or position children who weigh not more than 50 pounds." If the restraint were designed solely for children weighing more than 50 pounds, the restraint would be excluded from the standard. If the restraint were designated as suitable for children weighing less than 50 pounds in addition to over 50 pounds, the restraint would not be excluded from having to comply with Standard No. 213.

The agency has issued a notice of proposed rulemaking (NPRM) (copy enclosed) proposing, among other things, to amend the definition of a child restraint system to include devices designed for children who weigh not more than 65 pounds (67 FR 21805; May 1, 2002). If the proposal were adopted, restraint vests recommended for use by children up to 65 pounds would be subject to Standard No. 213.

With regard to the second part of this question, Standard No. 209, "Seat Belt Assemblies" (49 CFR 571.209), would apply to a restraint for children weighing over 50 pounds, if the restraint were intended to secure children for crash protection. The standard defines "seat belt assembly" as "any strap, webbing, or similar device designed to secure a person in a motor vehicle in order to mitigate the results of any accident, including all necessary buckles and other fasteners, and all hardware designed for installing such seat belt assembly in a motor vehicle." (S3) This standard would apply if the restraint were intended to mitigate the results of an accident. The standard would not apply to restraints recommended for children over 50 pounds that are clearly and permanently labeled with a warning that they are not intended to protect a child from the effects of a crash. [1]

I hope that this information is helpful. If you have any other questions, please contact Deirdre Fujita of my staff at (202) 366-2992.

Sincerely,

Jacqueline Glassman
Chief Counsel

Enclosures
ref:213
d.11/15/02





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[1] Vest restraints recommended for use by children weighing 50 pounds or less are subject to Standard No. 213, regardless of whether the restraint were "designedto mitigate the results of any accident." In other words, all devices designed to restrain children weighing 50 pounds or less in a motor vehicle are subject to Standard No. 213; the standard is not limited solely to devices designed to mitigate the results of a crash.