ID: nht80-2.6

DATE: 04/17/80

FROM: AUTHOR UNAVAILABLE; F. Berndt; NHTSA

TO: State of Florida, Earl H. Wright

TITLE: FMVSS INTERPRETATION

ATTACHMT: 8/17/79 letter from Frank Berndt to Mike Champagne

TEXT:

Mr. Earl H. Wright Administrator Department of Education State of Florida Tallahassee, Florida 32304

Dear Mr. Wright:

This responds to your recent letter requesting information concerning the legal ramifications of converting school buses with gasoline fuel systems to liquefied fuel systems.

I am enclosing a copy of a letter that we issued last year which discusses the Federal requirements and implications of making such conversions of vehicle fuel systems. That letter should answer all of your questions. Please note that an individual or an entity such as a State agency or school board can make modifications to his or its own vehicles with impunity as far as Federal requirements are concerned, if that individual or entity performs the work. For example, district school board employees could make the conversion you desire without regard to Federal requirements, whereas a motor vehicle repair business or the L.P. gas dealer would be responsible for complying with all Federal requirements.

I hope this has been responsive to your inquiry. If you have any further questions, please contact Hugh Oates of my office at 202-426-2992.

Sincerely,

Frank Berndt Chief Counsel

Enclosure

[letter dated 8/17/79 from Frank Berndt to Mike Champagne omitted here.]

March 21, 1980

Mr. Frank Berndt Chief Counsel U.S. Department of Transportation National Highway Traffic Safety Administration Washington, D.C. 20590

Dear Mr. Berndt:

At least two county district school boards in Florida have converted school buses from a gasoline fuel system to a liquefied petroleum (L.P.) gas fuel system. Other district school boards are considering making such conversions to school buses.

The conversions include removing, from the school bus chassis, a fuel system certified to the National Highway Traffic Safety Administration by the chassis manufacturer as meeting Federal Motor Vehicle Safety Standard 301, Fuel System Integrity, and installing in its place an L.P. gas system that has not met certification requirements for F.M.V.S.S. 301. In some cases the conversions were done to new buses immediately after they were delivered to the school district by the manufacturer. In other cases the conversions were done to one- or two-year old used school buses. Some conversions were made by L.P. gas dealers and some were made by district school board employees.

In that some school buses have been converted to L.P. gas and there is an indicating that such a conversion program involving hundreds of school buses in Florida may be begun soon, I am requesting answers as follows:

(1) If a state agency, or person, knowingly renders inoperative a fuel system installed on a school bus in compliance with F.M.V.S.S. 301 by removing the fuel system from the bus and replacing it with a fuel system that does not meet the requirements of F.M.V.S.S. 301, has the state agency, or person, committed a violation of a federal law or of a rule or safety standard authorized by law?

(2) If a state agency, or person, is found to be responsible for noncompliance with a Federal Motor Vehicle Safety Standard because of actions described in item (1) above, is there a penalty for being responsible for such noncompliance?

Your consideration and response to the above request will be appreciated.

Sincerely,

Earl H. Wright Administrator School Transportation

ID: nht93-4.5

DATE: May 20, 1993

FROM: Karl-Heinz Ziwica -- General Manager, Environmental Engineering, BMW of North America, Inc.

TO: Stephen P. Wood -- Assistant Chief Counsel, Rulemaking, NHTSA

COPYEE: David Elias; William Fan

TITLE: Re: 49 CFR 571.206, FMVSS No. 206; Door Locks and Door Retention Components; Request for Interpretation

ATTACHMT: Attached to letter dated 10/7/93 from John Womack to Karl-Heinz Ziwica (A41; Std. 206)

TEXT:

Recently, William Scully of my staff and our counsel, Donald M. Schwentker, met with David Elias of your staff and William Fan of Rulemaking to discuss our interpretation of 49 CFR 571.206, Federal Motor Vehicle Safety Standard ("FMVSS") No. 206, Door locks and door retention components, with respect to a new design door latch and lock system that BMW is planning to introduce on a new car line in the United States in the near future. At that time, Mr. Scully also demonstrated the new system on a modified production BMW passenger car.

We hereby request the agency's confirmation of our interpretation that the operation of BMW's new system conforms to the applicable provisions of FMVSS 206.

FMVSS 206 REQUIREMENTS

S4.1.3 DOOR LOCKS. Each door shall be equipped with a locking mechanism with an operating means inside the vehicle.

S4.1.3.1 SIDE FRONT DOOR LOCKS. When the locking mechanism is engaged, the outside door handle or other outside latch release control shall be inoperative. S4-1.3.2 SIDE REAR DOOR LOCKS. In passenger cars and multipurpose passenger vehicles, when the locking mechanism is engaged, both the outside and inside door handles or other latch releases controls shall be inoperative.

DESCRIPTION OF THE OPERATION OF THE BMW SYSTEM

The inside door handle operates as a door lock release AND SUBSEQUENTLY as a door latch release. The first complete activation of the recessed handle (a pulling motion) releases the door locking mechanism. The second activation (another pulling motion) operates the door latch release control.

WHY THE BMW DOOR LOCK SYSTEM COMPLIES WITH FMVSS 206

-- When the rear door locking mechanism is engaged, the door handles ARE INOPERATIVE.

-- After the door locking mechanism is disengaged (by activating the common door lock/door latch release handle), the door handle BECOMES OPERATIVE.

OCCUPANT PROTECTION INTENDED BY FMVSS 206, AND HOW BMW'S DOOR LOCK SYSTEM PROVIDES SUCH PROTECTION

-- Ejection

* BMW's system affords even more protection against inadvertent opening of doors than that required by FMVSS 206 for front doors.

-- Inadvertent Opening by Children

* All BMW products are fitted with rear door child locks (which deactivate operation of the inside door handles) as standard equipment, and when such child locks are engaged, the rear doors CANNOT BE OPENED FROM THE INSIDE.

* Restrained children cannot reach the rear door handle.

* Two separate actions are required to open the rear doors (when the child locks are not engaged), just as in a conventional door lock and door latch release system.

* The door lock release of most current conventional systems is placed immediately adjacent to the door latch release.

OTHER ADVANTAGES OF BMW'S DOOR LOCK SYSTEM

In addition to the convenience provided to the vehicle occupants, BMW's door lock system affords easier exit after a crash, and is less vulnerable to damage during side impact.

For these reasons, BMW believes its new system fully complies with the applicable provisions of FMVSS 206, while providing distinct advantages to its customers.

If you have any questions about this request or the operation of the new BMW door locking system, please contact Mr. William Scully at (201) 573-2069.

ID: 1984-1.46

TYPE: INTERPRETATION-NHTSA

DATE: 05/03/84

FROM: AUTHOR UNAVAILABLE; Frank Berndt; NHTSA

TO: U.S. Postal Service

TITLE: FMVSS INTERPRETATION

TEXT:

May 3, 1984

Mr. Joel S. Premack Research and Development Laboratories U.S. Postal Service Rockville, MD 20852-8101

Dear Mr. Premack:

This responds to your March 7, 1984 letter to Roger Fairchild of this office regarding Federal Motor Vehicle Safety Standard (FMVSS) 111, Rearview Mirrors. In particular, you asked whether the covering of the rear and rear-side windows on Postal Service Vehicles would be consistent with the requirements of FMVSS 111.

FMVSS 111 (copy enclosed) establishes requirements regarding rearview mirror systems on new motor vehicles. New Postal Service vehicles would be required to employ one of three optional mirror systems. The first system is a system permitted for use on passenger cars, and includes an inside review mirror with a specified field of view and a plane, driver's side exterior mirror also having a specified field of view. The second permissible system is also a passenger car system and is identical to the first system, except that the inside mirror need not provide the specified field of view and an additional passenger side plane or convex rearview mirror must be provided to compensate for the more restricted field of view of the inside mirror. The third system has two plane mirrors of 19.5 square inches reflective surface area each, one mounted on each side of the vehicle.

Based on the materials you provided with your letter, it appears that Postal Service DJ-5G Models employ the second system described above. In that case, further reduction of the field of view of the inside rearview mirror would not affect compliance with our standard, since an additional passenger side mirror is provided.

If the proposed covering of the rear windows is to be accomplished as a modification to vehicles already delivered to the Postal Service, these modifications may not be subject to FMVSS 111 at all. Modifications to vehicles must be consistent with safety standards only to the extent those modifications are performed by a vehicle manufacturer, distributor, dealer, or private motor vehicle repair business which knowingly renders inoperative safety equipment installed on the vehicle. See 15 U.S.C. 1397(a)(2)(A). Thus, if the window covering is done by the Postal Service itself, FMVSS requirements are not applicable.

If you have any further questions on this matter, please feel free to contact us.

Sincerely,

Frank Berndt Chief Counsel

Enclosure

March 7, 1984

Mr. Roger Fairchild National Highway Traffic Safety Administration U.S. Department of Transportation 400 Seventh Street, S.W. Washington, DC 20590

Dear Mr. Fairchild:

The Engineering Support Center of the U.S. Postal Service has been requested to consider covering over windows identified as items 1, 2, and 3 in the enclosed figure. A set of mirrors would be installed to minimize the impact on rear and side viewing. He are interested in knowing whether such a retrofit is consistent with the existing vehicle certification.

We would appreciate your review of the proposed change in window area as it pertains to Federal Motor Vehicle Safety Standard 111 and related effectiveness of the rear viewing mirrors. Please contact Mr. Joel Premack on 443-3257 with your assessment of this issue.

Joel S. Premack Mechanical Engineer, Program Engineer Mechanical Design/Development Branch Engineering Support Center 11711 Parklawn Drive Rockville, MD 20852-8101

Enclosure

********INSERT GRAPHIC********

AM General Corporation MODEL KJ-5G

ID: 6329

Mr. Allan E. McIntyre
Engineering and Product Development
Sprague Devices, Inc.
P. O. Box 389
Michigan City, IN 46360

Dear Mr. McIntyre:

This responds to your letter to the Federal Highway Administration asking for an interpretation of Federal Motor Vehicle Safety Standard No. 104, Windshield washing and wiping systems. Since the National Highway Traffic Safety Administration (NHTSA) is responsible for administering the Federal motor vehicle safety standards (FMVSS) , including Standard No. 104, your letter was referred to my office for reply. I regret the delay in this response.

Your letter concerns a standard issued by the Society of Automotive Engineers (SAE) and referenced in S4.2.2 of Standard No. 104. S4.2.2 specifies that each multipurpose passenger vehicle, truck and bus shall have a windshield washing system that meets the requirements of SAE Recommended Practice J942, November 1965 (as modified). You explain that you chair an SAE subcommittee that developed a new Recommended Practice J1944, "Truck & Bus Multipurpose Vehicle Windshield Washer System," that you believe is more suitable for testing "commercial vehicles." You ask whether NHTSA would "allow for documentation of compliance to FMVSS 104 through use of the new J1944 recommended practice or is it necessary to evaluate per J942 as specifically written."

Your question raises two issues, both of which concern how a test procedure specified in the Federal motor vehicle safety standards may vary in practice from that described in the standard. The first issue is whether a vehicle manufacturer is obligated to test its vehicle only in the manner specified in Standard No. 104, i.e., only by using J942 and not the newly developed J1944. The answer is no. Each of NHTSA's safety standards specifies the test conditions and procedures that this agency will use to evaluate the performance of the vehicle or equipment being tested for compliance with the particular safety standard. However, NHTSA does not require a manufacturer to test its products only in the manner specified in the safety standards. A manufacturer may choose any means of evaluating its products to determine whether the vehicle or item of equipment complies with the requirements of Standard No. 104, provided, however, that the manufacturer assures that the vehicle will comply with the standard when tested by NHTSA.

If NHTSA's compliance test of Standard No. 104 were to show an apparent noncompliance of a vehicle with the standard, the vehicle manufacturer would be asked to show the basis for its certification that its vehicle complies with the standard. If in fact there is a noncompliance, the manufacturer would be subject to civil penalties unless it can establish that it exercised "reasonable care" in the manufacture of the product and in the checks (through actual testing, computer simulation, engineering analyses, or other means) to ensure compliance.

We cannot tell you at this time whether a manufacturer's use of J1944 to certify a vehicle's compliance with Standard No. 104 would constitute "reasonable care." NHTSA is unable to judge what efforts constitute "reasonable care" outside of the course of a specific enforcement proceeding. What constitutes "reasonable care" in a particular case depends on many factors, including such things as the limitations of current technology, the availability of test equipment, the size of the manufacturer, and above all, the diligence exercised by the manufacturer.

The second issue raised by your question is whether NHTSA is required to use J942 in the agency's compliance tests. The answer is yes, as long as J942 is incorporated into the test procedure of Standard No. 104. When conducting its compliance testing, NHTSA must precisely follow each of the specified test procedures and conditions set forth in the safety standard. If a different procedure or condition is desirable, the agency must undertake rulemaking to amend the standard to incorporate the desired change.

You ask in your letter about the procedure for amending Standard No. 104. NHTSA has a process whereby you can petition for a change to the FMVSS, including Standard No. 104. The petitioning procedure is outlined at 49 CFR part 552 Petitions for rulemaking, defect, and noncompliance orders (copy enclosed). Very briefly, section 552.4 states that a petition should be addressed and submitted to: Administrator, NHTSA, 400 Seventh Street, SW, Washington, DC 20590. Each petition must be written in English, have a heading that includes the word "Petition," set forth facts which it is claimed establish that a change to the regulation is necessary, set forth a brief description of the substance of the revised regulation which it is claimed should be issued, and contain the name and address of the petitioner. After receiving the petition, NHTSA conducts a technical review to determine whether there is a reasonable possibility that the requested regulatory change will be issued at the end of the appropriate rulemaking proceeding.

You state that J1944, the newer SAE standard, is overall a "tougher" document than J942. You should be aware that NHTSA cannot automatically incorporate a "tougher" version of an incorporated document into the FMVSS. Before NHTSA incorporates an upgraded standard, NHTSA examines whether there is a safety need for the newer requirements. In its examination, NHTSA considers data from all sources, including the petitioner. If you decide to submit a petition, you ought to explain the safety need for the new requirements and provide an analysis of the increased costs likely to be associated with the new requirements.

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

Sincerely,

Philip R. Recht Chief Counsel

Enclosure ref:104 d:2/3/95 While the exercise of "reasonable care" may relieve a manufacturer of liability for civil penalties for the manufacture and sale of noncomplying vehicles or equipment, it does not relieve a manufacturer of the responsibility to notify purchasers of the noncompliance and remedy the noncompliance free of charge.

ID: nht89-3.6

TYPE: INTERPRETATION-NHTSA

DATE: SEPTEMBER 29, 1989

FROM: STEPHEN P. WOOD -- ACTING CHIEF COUNSEL, NHTSA

TO: DAVID G. GOULD -- LEGISLATION DEPT., LOTUS ENGINEERING, NORFOLK, ENGLAND

TITLE: N

ATTACHMT: LETTER DATED JULY 5, 1989 TO STEVE WOOD, NHTSA, FROM DAVID G. GOULD, LOTUS ENGINEERING

TEXT: Thank you for your letter asking whether a world manufacturer identifier (WMI) assigned ny the Society of Automotive Engineers (SAE) pursuant to a contract with this agency may be deleted from SAE's register of assigned WMIs upon request of a foreign nat ional governmental agency, but without the consent of the holder of the WMI. Absent some extraordinary circumstances, the answer to your question is no.

49 CFR Part 565, Vehicle Identification Number - Content Requirements, sets forth format and content requirements for vehicle identification numbers (VINs). Section 565.4(a) specifies that the first three characters of the VIN shall be the manufacturer' s WMI, which is "assigned in accordance with Section 565.5(c) of this part." Section 565.5(c) specifies that the SAE assigns WMIs to vehicle manufacturers under contract with the National Highway Traffic Safety Administration (NHTSA).

No provision in NHTSA's regulations sets forth any procedures for deleting assigned WMIs from the SAE register upon the request of any party, even the manufacturer assigned the WMI. Similarly, no provision in the contract specifically addresses the issu e of deleting assigned WMIs for any reason. In its contract with NHTSA, SAE has agreed to "furnish the facilities, materials, personnel and services necessary to accomplish the work..."

We contacted the SAE's WMI Coordinator to learn how they have handled this situation in the past. We were informed that the WMIs are assigned by the SAE for an indefinite period with no express provision for revo- cation of the assignment. There have b een a few isolated instances in which the party to whom a WMI was assigned has contacted SAE and asked that the WMI assignment be revoked. In those instances, the SAE has granted the manufacturer's request but the revoked WMI is never reassigned to anot her manufacturer. To date, SAE has never been asked to delete an assigned WMI by any party other than the manufacturer to whom the WMI was assigned. If a situation arose in which the SAE was asked to delete an assigned WMI without the knowledge and con sent of the manufacturer to whom the WMI was assigned; the SAE assures us that they would not act on the request without consulting this agency.

If and when we are ever consulted by ShE for our opinion on how to handle such a request, we would carefully consider the circumstances of the particular case before advising SAE on how to respond to the request. As a general matter, however, NHTSA does not favor the deletion of assigned "WMIs for any reason.

Sincerely,

ID: 2070y

Mr. David G. Gould
Legislation Department
Lotus Engineering
Hethel, Norwich,
Norfolk NR14 8EZ
ENGLAND

Your ref: DGG/JCG

Dear Mr. Gould:

Thank you for your letter asking whether a world manufacturer identifier (WMI) assigned by the Society of Automotive Engineers (SAE) pursuant to a contract with this agency may be deleted from SAE's register of assigned WMIs upon request of a foreign national governmental agency, but without the consent of the holder of the WMI. Absent some extraordinary circumstances, the answer to your question is no.

49 CFR Part 565, Vehicle Identification Number - Content Requirements, sets forth format and content requirements for vehicle identification numbers (VINs). Section 565.4(a) specifies that the first three characters of the VIN shall be the manufacturer's WMI, which is "assigned in accordance with /565.5(c) of this part." Section 565.5(c) specifies that the SAE assigns WMIs to vehicle manufacturers under contract with the National Highway Traffic Safety Administration (NHTSA).

No provision in NHTSA's regulations sets forth any procedures for deleting assigned WMIs from the SAE register upon the request of any party, even the manufacturer assigned the WMI. Similarly, no provision in the contract specifically addresses the issue of deleting assigned WMIs for any reason. In its contract with NHTSA, SAE has agreed to "furnish the facilities, materials, personnel and services necessary to accomplish the work..."

We contacted the SAE's WMI Coordinator to learn how they have handled this situation in the past. We were informed that the WMIs are assigned by the SAE for an indefinite period with no express provision for revocation of the assignment. There have been a few isolated instances in which the party to whom a WMI was assigned has contacted SAE and asked that the WMI assignment be revoked. In those instances, the SAE has granted the manufacturer's request but the revoked WMI is never reassigned to another manufacturer. To date, SAE has never been asked to delete an assigned WMI by any party other than the manufacturer to whom the WMI was assigned. If a situation arose in which the SAE was asked to delete an assigned WMI without the knowledge and consent of the manufacturer to whom the WMI was assigned, the SAE assures us that they would not act on the request without consulting this agency.

If and when we are ever consulted by SAE for our opinion on how to handle such a request, we would carefully consider the circumstances of the particular case before advising SAE on how to respond to the request. As a general matter, however, NHTSA does not favor the deletion of assigned WMIs for any reason.

Sincerely,

Stephen P. Wood Acting Chief Counsel

ref:565 d:9/29/89

ID: nht93-7.44

DATE: October 29, 1993

FROM: John B. Walsh -- Legal Affairs Manager, Corporate Attorney, American Suzuki Motor Corporation

TO: John Womack -- Acting Chief Counsel, NHTSA

TITLE: Request for Interpretation - FMVSS 208 - Sun Visor Label

ATTACHMT: Attached to letter dated 11/4/93 from John Womack to John B. Walsh (A41; Std. 208)

TEXT:

American Suzuki Motor Corporation ("ASMC") requests an interpretation of FMVSS 208 regarding the sun visor label requirements issued by NHTSA on September 2, 1993 (Docket No. 74-14; Notice 82). I understand that the agency discussed this final rule at the most recent NHTSA/Industry public meeting and announced that the agency plans to respond to several pending requests for interpretation of the new rule at the same time that the agency responds to the pending petitions for reconsideration of the rule. ASMC respectfully suggests that its interpretation request contained in this letter could appropriately be handled in the same fashion. Although ASMC has framed this request as seeking an interpretation of the rule, ASMC would not object if NHTSA were to conclude that this request should be handled instead by means of an amendment to the final rule issued in the course of responding to the petitions for reconsideration.

1. Specifically, ASMC requests an very limited interpretation that use of the signal word Warning, but no other word, complies with the requirement to use the signal word Caution for the sun visor label specified in S4.5.1(b)(1).

Discussion

a. The interpretation requested by ASMC conforms with the agency's concern that consistent information and instructions on sun visor labels be presented in a consistent format. All vehicles will bear uniform labels, with the only potential difference being the signal word used. Every signal word will be either Warning or Caution, consistent with the manufacturer's use of those signal words on other vehicle labels and in the vehicle owner's manual. Vehicle occupants will be constantly exposed to the same list of do's and don't's regardless of vehicle manufacturer, and will not be confused by the manufacturer's use of the appropriate signal word.

b. The American National Standards Institute (ANSI) Standard Z535.4-1991, Product Safety Signs and Labels, specifies that Warning or Caution (or Danger) be used as a signal word to indicate risk of personal injury. The ANSI Standard specifies that Warning be used to alert product users to non-imminent risks of serious injury or death. The language from the Standard is:

4.15 Signal Word. The word or words that designate a degree or level of hazard seriousness. The signal words for product safety signs are DANGER, WARNING, and CAUTION.

4.15.1 DANGER indicates an imminently hazardous situation which, if not avoided, will result in death or serious injury. This signal word is to be limited to the most extreme situations.

4.15.2 WARNING indicates a potentially hazardous situation which, if not avoided, could result in death or serious injury.

4.15.3 CAUTION indicates a potentially hazardous situation which, if not avoided, may result in minor or moderate injury. It may also be used to alert against unsafe practices.

Note: DANGER or WARNING should not be considered for property damage accidents unless personal injury risk appropriate to these levels is also involved. CAUTION is permitted for property-damage-only accidents.

If NHTSA permits use of the signal word "Warning" on the air bag sun visor label, this will be consistent with a national effort toward uniformity in safety labeling of products.

c. Many motor vehicle manufacturers currently use the word "Warning," rather than, or in addition to, the word "Caution", as a signal word in owner's manuals or on vehicle labels indicating risk of personal injury. A brief review of a small sample of 1991 through 1993 owner's manuals reveals that Ford, Chrysler, Honda, Nissan, Volvo, Saab, and Suzuki are in this group. Allowing manufacturers to use the signal word "Warning" on the air bag sun visor label would contribute to motor vehicle safety by assuring that occupants of vehicles already employing the word "Warning" for risks of personal injury will be provided with consistent messages about such risks.

d. In the preamble to the Final Rule, NHTSA relates that several commenters referred to various label statements as "warnings." Use of the word Warning as a signal word will not cause any confusion about the nature of the label, as Warning clearly indicates something related to a potential hazard.

2. In addition to the interpretation requested above, ASMC offers the following comment in support of the petitions for reconsideration submitted by General Motors and Ford regarding a change in the final rule to permit placement of the Part 575.105 label on the driver's sun visor.

Discussion

a. It is consistent with motor vehicle safety to permit two labels required by NHTSA to appear on the same portion of a motor vehicle. NHTSA has required both labels. The air bag label must be on the sun visor. The utility vehicle label would be permitted to be on the driver's sun visor, absent the prohibition of S4.5.1(b)(2). NHTSA can resolve the conflict by amending the FMVSS 208 final rule to permit the utility vehicle label to be placed on the driver's sun visor.

b. Having two labels on the sun visor will not cause information overload. The two labels relate to two different aspects of vehicle

use - basic do's and don't's that occupants should follow to obtain maximum protection from air bags, and an alert for drivers of utility vehicles to follow when driving utility vehicles on paved roads. Both labels will be present in air bag-equipped utility vehicles pursuant to regulation, so the utility vehicle label should not be banished from the sun visor because the manufacturer has installed an air bag. Encountering two required labels on two separate parts of the vehicle interior causes no more information overload than encountering the same two labels on the sun visor.

Thank you for considering this request for interpretation and this comment.

ID: nht92-8.38

DATE: March, 1992 EST

FROM: Paul Jackson Rice -- Chief Counsel, NHTSA

TO: S. Watanabe -- Manager, Automotive Equipment Legal & Homologation Sect., Stanley Electric Co., Ltd., Tokyo, Japan

TITLE: None

ATTACHMT: Attached to letter dated 2/6/92 from S. Watanabe to NHTSA Administrator (OCC 7008)

TEXT:

This responds to your letter of February 6, 1992, to the Administrator, requesting an interpretation of section S7.2(b) of Motor Vehicle Safety Standard No. 108.

Section S7.2(b) requires that headlamp lenses be marked "with the name and/or trademark of the manufacturer, which is registered with the U.S. Patent and Trademark Office." Stanley Electric Co., Ltd. of Japan has subsidiaries in Thailand and Taiwan. Each subsidiary uses three manufacturer identification marks, and you have asked whether each subsidiary may use one of the marks as a manufacturer identification under S7.2(b).

You also relate that application has been made to the U.S. Patent and Trademark Office with respect to one of those identification marks. Certainly, once registration has been completed, Stanley of Thailand and Stanley of Taiwan may use the registered mark and this will be in compliance with Standard No. 108. Stanley has not registered the other two identification marks (TH STANLEY or TW STANLEY, and STANLEY TH or STANLEY TW) because it has concluded that these are not trademarks but the manufacturer's name.

We agree with your suggestion that the identification marks TH STANLEY, TW STANLEY, STANLEY TH, and STANLEY TW are just the manufacturer's name, not a trademark. Section S7.2(b) of Standard No. 108 does not specify any particular form in which the manufacturer's name must appear on the lens, nor does that section require the manufacturer's name to be registered with the U.S. Patent and Trademark Office.

Therefore, there would be no violation of S7.2(b) if your Thai and Taiwanese subsidiaries mark the lenses of their headlamps with the identification marks identified in your correspondence as manufacturer names.

ID: nht94-2.79

TYPE: Interpretation-NHTSA

DATE: May 12, 1994

FROM: John Womack -- Acting Chief Counsel, NHTSA

TO: Hamilton K. Pyles -- Cairncross & Associates, Inc.

TITLE: None

ATTACHMT: Attached to letter dated 4/5/94 from Hamilton K. Pyles to NHTSA Office of Vehicle Safety Compliance

TEXT:

This responds to your letter of April 5, 1994 to the Office of Vehicle Safety Compliance. You would like to import into the United States "a kit for a compact custom truck bed". You ask what Federal laws and regulations govern the importation, sale, an d installation of wooden pickup bed kits. You also ask what you must do, initially, to import a trial sample bed into the United States.

You have described the kit as consisting of plans and instructions in English, wooden and plywood parts of the bed, unspecified "metal parts," fastenings, wiring and "lights."

As a general rule, all motor vehicles and items of motor vehicle equipment must conform (and be certified by their manufacturer to conform) to all applicable Federal motor vehicle safety standards issued by this agency in order to be imported into the Un ited States and sold here. The only motor vehicle equipment in your kit that is covered by a Federal standard is "lights." They are subject to our Standard No. 108 LAMPS, REFLECTIVE DEVICES AND ASSOCIATED EQUIPMENT (49 CFR 571.108), and, thus, must confo rm and be certified as conforming in order to be imported into the United States. Certification is indicated either by a DOT symbol on the equipment, or by a statement of compliance attached to the equipment or on the container in which it is shipped.

If the lighting equipment does not conform, or if you are unsure whether it does, you are permitted by 49 CFR 591.5(j) to import one or more sample beds or kits for "research, investigations, studies, (or) demonstrations" for a period of up to three year s after first obtaining written approval from the Office of Vehicle Safety Compliance. If the lighting equipment does conform, there is no limitation upon the number of items you may import.

You have also written that the truck bed will be offered to the general public as a replacement for existing truck beds, and to "manufacturers who place specialized beds (campershells, utility company boxes, etc.) on pick-up frames that they buy new with out factory installed beds."

Although you have no responsibility under the National Traffic and Motor Vehicle Safety Act for compliance of a vehicle with the Federal safety standards when the conversion work is completed, we should like to apprise you of the obligations of a convert er, since the converter will look to you to provide it with complying lighting equipment. With respect to the general public, under section 108 (a) (2) (A) of the Act (15 U.S.C. 1397 (a) (2) (A)) , the removal of the old truck bed and lights and

installation of the new truck bed kit by a "manufacturer, distributor, dealer, or motor vehicle repair business" must not "knowingly render inoperative in whole or in part any device or element of design installed in accordance with" a Federal motor vehi cle safety standard. For example, one of the named parties would violate the Act if it removed the old bed with complying lamps and installed a new bed with noncompliant lamps if that person knew that the lamps did not comply. Similarly, if the bed in so me manner obscured the center highmounted lamp which is now required for pickups manufactured after September 1, 1993, that could be a violation of the Act. If a manufacturer is installing the truck bed on a new chassis, it becomes responsible for ensuring that the completed vehicle fully meets the Federal motor vehicle safety standards, and for certifying its compliance.

Finally, as the importer of the kit, you become its "manufacturer" under our laws and may have some responsibility for notification and remedy of safety related defects or noncompliances that are discovered in the kit either before or after its installat ion on motor vehicles.

I enclose an information sheet for your information, and hope that this letter has been helpful to you.

ID: nht95-1.51

TYPE: INTERPRETATION-NHTSA

DATE: February 3, 1995

FROM: Philip R. Recht -- Chief Counsel, NHTSA

TO: Allan E. McIntyre -- Engineering and Product Development, Sprague Devices, Inc.

TITLE: NONE

ATTACHMT: Attached to 6/9/94 letter from Allan E. McIntyre to Rodney Slater

TEXT: Dear Mr. McIntyre:

This responds to your letter to the Federal Highway Administration asking for an interpretation of Federal Motor Vehicle Safety Standard No. 104, Windshield washing and wiping systems. Since the National Highway Traffic Safety Administration (NHTSA) is responsible for administering the Federal motor vehicle safety standards (FMVSS), including Standard No. 104, your letter was referred to my office for reply. I regret the delay in this response.

Your letter concerns a standard issued by the Society of Automotive Engineers (SAE) and referenced in S4.2.2 of Standard No. 104. S4.2.2 specifies that each multipurpose passenger vehicle, truck and bus shall have a windshield washing system that meets the requirements of SAE Recommended Practice J942, November 1965 (as modified). You explain that you chair an SAE subcommittee that developed a new Recommended Practice J1944, "Truck & Bus Multipurpose Vehicle Windshield Washer System," that you believe is more suitable for testing "commercial vehicles." You ask whether NHTSA would "allow for documentation of compliance to FMVSS 104 through use of the new J1944 recommended practice or is it necessary to evaluate per J942 as specifically written."

Your question raises two issues, both of which concern how a test procedure specified in the Federal motor vehicle safety standards may vary in practice from that described in the standard. The first issue is whether a vehicle manufacturer is obligated to test its vehicle only in the manner specified in Standard No. 104, i.e., only by using J942 and not the newly developed J1944. The answer is no. Each of NHTSA's safety standards specifies the test conditions and procedures that this agency will use t o evaluate the performance of the vehicle or equipment being tested for compliance with the particular safety standard. However, NHTSA does not require a manufacturer to test its products only in the manner specified in the safety standards. A manufact urer may choose any means of evaluating its products to determine whether the vehicle or item of equipment complies with the requirements of Standard No. 104, provided, however, that the manufacturer assures that the vehicle will comply with the standard when tested by NHTSA.

If NHTSA's compliance test of Standard No. 104 were to show an apparent noncompliance of a vehicle with the standard, the vehicle manufacturer would be asked to show the basis for its certification that its vehicle complies with the standard. If in fact there is a noncompliance, the manufacturer would be subject to civil penalties unless it can establish that it exercised "reasonable care" in the manufacture of the product and in the checks (through actual testing, computer simulation, engineering anal yses, or other means) to ensure compliance. n1

n1 While the exercise of "reasonable care" may relieve a manufacturer of liability for civil penalties for the manufacture and sale of noncomplying vehicles or equipment, it does not relieve a manufacturer of the responsibility to notify purchasers of the noncompliance and remedy the noncompliance free of charge.

We cannot tell you at this time whether a manufacturer's use of J1944 to certify a vehicle's compliance with Standard No. 104 would constitute "reasonable care." NHTSA is unable to judge what efforts constitute "reasonable care" outside of the course of a specific enforcement proceeding. What constitutes "reasonable care" in a particular case depends on many factors, including such things as the limitations of current technology, the availability of test equipment, the size of the manufacturer, and abo ve all, the diligence exercised by the manufacturer.

The second issue raised by your question is whether NHTSA is required to use J942 in the agency's compliance tests. The answer is yes, as long as J942 is incorporated into the test procedure of Standard No. 104. When conducting its compliance testing, NHTSA must precisely follow each of the specified test procedures and conditions set forth in the safety standard. If a different procedure or condition is desirable, the agency must undertake rulemaking to amend the standard to incorporate the desired change.

You ask in your letter about the procedure for amending Standard No. 104. NHTSA has a process whereby you can petition for a change to the FMVSS, including Standard No. 104. The petitioning procedure is outlined at 49 CFR part 552 Petitions for rulemak ing, defect, and noncompliance orders (copy enclosed). Very briefly, section 552.4 states that a petition should be addressed and submitted to: Administrator, NHTSA, 400 Seventh Street, SW, Washington, DC 20590. Each petition must be written in English, have a heading that includes the word "Petition," set forth facts which it is claimed establish that a change to the regulation is necessary, set forth a brief description of the substance of the revised regulation which it is claimed should be issued, and contain the name and address of the petitioner. After receiving the petition, NHTSA conducts a technical review to determine whether there is a reasonable possibility that the requested regulatory change will be issued at the end of the appropriate r ulemaking proceeding.

You state that J1944, the newer SAE standard, is overall a "tougher" document than J942. You should be aware that NHTSA cannot automatically incorporate a "tougher" version of an incorporated document into the FMVSS. Before NHTSA incorporates an upgrad ed standard, NHTSA examines whether there is a safety need for the newer requirements. In its examination, NHTSA considers data from all sources, including the petitioner. If you decide to submit a petition, you ought to explain the safety need for the new requirements and provide an analysis of the increased costs likely to be associated with the new requirements.

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

Sincerely,