ID: nht93-9.2

DATE: December 2, 1993

FROM: James E. Shlesinger -- Shlesinger, Arkwright & Garvey

TO: Walter K. Myers -- Office of the General Counsel, NHTSA

TITLE: None $125(Y) OCC-9388

ATTACHMT: Attached to letter dated 3/21/94 from John Womack to James E. Schlesinger (A42; Redbook; Part 575.104), letter dated 12/23/92 from James E. Shlesinger to Walter Myers, and letter dated 2/23/93 from John Womack to James E. Schlesinger

TEXT:

This is to follow-up on prior correspondence and discussions pertaining to regulatory standards for tires and manufacturer and tire brand name owner requirements in the areas of treadwear, traction and temperature resistance. Previously, we requested an opinion concerning the Uniform Tire Quality Grading Standards (UTQGS) as it applied to a certain fact situation. Copies of our letter dated December 23, 1992, and Chief Counsel's letter of February 23, 1993 in response are enclosed for your reference.

Our present request is directed to an interpretation of the language of 49 C.F.R. S575.104(c)(2) and the qualifications as a limited production tire exception to the requirement that the UTQGS information be molded onto or into the tire sidewall and be provided by means of a paper label affixed to the tread surface of the tire. We also seek confirmation of violations of 49 C.F.R. S575.6(b) and 575.6(d)(2) in the case below wherein a brand name owner of tires both fails to provide the consumer and the Administrator consumer information applicable to tires offered for sale. Finally, we request a brief comment concerning the penalties for violation of the UTQGS as set forth in the National Traffic and Motor Vehicle Safety Act of 1966 (15 U.S.C. S1381 et seq., as amended (hereinafter "Act").

For the purpose of convenience and clarification, we present the following background information which we believe forms the basis for a violation of the Act subjecting the violator to civil penalties for each violation.

Companies A and B are wholly owned Canadian subsidiaries of U.S. companies. A and B manufacture tires for Company C for sale and distribution in Canada. The tires produced by A and B for C carry C's brand name on both the tire sidewall and the paper tread label affixed to the tread surface of the tire. C retails and sells tires through stores which C own and operate throughout Canada. All of the tires in question carry the "DOT" certification and the Canadian National Tire Safety mark which is evidenced by a maple leaf. However, the tires manufactured by A and B for C do not contain UTQGS information on either the tire sidewall or the paper tread label affixed to the tires. We believe the reason for this is because Canada does not require UTQGS information be molded into the sidewall of the tire or be placed on the paper tread label for the tire, and that the tires manufactured by A and B were produced for C for sale within its stores in Canada.

For various reasons, C rejected a large number of tires manufactured for it by A and B during the period 1990-1991 and these tires ultimately found their way into the U.S. market. Specifically, C rejected tires manufactured

for it by A or B in three instances. In the case of an overrun of tires to the extent that C was unable to absorb the volume, C permitted A or B to market and sell the tires in the United States or countries other than Canada. Second, C did not accept blem tires for sale through its stores in Canada. Blem tires would initially be offered for sale to an associate of C in Canada, but if the associate rejected the offer, then A and B were free to dispose of the blem tires provided said tires were not disposed of in Canada. Third, in the case of an end of the line run of a certain brand of tires, when C decided to discontinue the line, A and B were allowed to sell the excess of the discontinued line to countries other than Canada.

All of the tires shipped to the U.S. by A or B which carried C's brand name on them during this period were passenger car tires. None of the tires were deep tread, winter type snow, space-saver, or temporary use spare tires. Also, none of the tires were with nominal rim diameters of 10-12 inches. (See 49 C.F.R. S575.104(c)).

As noted previously, none of the tires in question contained information pertaining to treadwear, traction and temperature resistance, either by means of a label affixed to the tread surface of the tire or molded onto or into the tire sidewall as set forth in the requirements governing UTQGS at 49 C.F.R. S575.104. Further, C, the brand name owner of the tires did not file any documents or any submissions to the Administrator at any time prior to or concurrent with the shipment of tires into the U.S. as noted in the requirements set forth at 49 C.F.R. S575.6(d)(2) which specify that a brand name owner of tires must submit to the Administrator ten (10) copies of information specified in subpart B that is applicable to tires offered for sale at least thirty (30) days before it is first provided for examination by prospective purchasers. Nor was any of this information provided to purchasers.

With this information, our specific inquiry is directed to the "limited production tires" exception to the requirement to meet UTQGS set forth at 49 C.F.R. S575.104(c)(2)./1 The specific language is as follows:

(2) "Limited production tire" means a tire meeting all the following criteria, as applicable:

(iii) the tire's size was not listed as a vehicle manufacturer's recommended tire size designation for a new motor vehicle produced in or imported into the U.S. in quantities greater than 10,000 during the calendar year preceding the year of the tire's manufacture;...

COMPANY A

Approximately 6,975 tires were shipped to the U.S. in April 1990 and 2,947 tires were shipped to the U.S. in November 1991, all with the tire size P225/75R15. This size refers to a tire size listed as a vehicle manufacturer's recommended tire size designation for the calendar year preceding the year of the tire's manufacture. For example, P225/75R15 is a

1/ For the purpose of this inquiry, it can be assumed that the criteria set forth at S575.104(c)(2)(i), (ii) and (iv) are met by Companies A and B.

vehicle manufacturer's recommended tire Size for the 1988 Buick LeSabre, Buick Electra Estate Wagon, Cadillac Brougham (4-door) Sedan, and Oldsmobile Custom Cruiser Wagon; the 1989 Buick Electra Estate Wagon, LeSabre Estate Wagon, Cadillac Brougham (4-door), Chevrolet Caprice Wagon, and Oldsmobile Custom Cruiser Wagon; and the 1990 Chevrolet Caprice, Cadillac Brougham and Buick Estate Wagon. These motor vehicles were produced in or imported into the U.S. in quantities greater than 10,000 during the respective years. We therefore believe that the limited production tire exception of 575.104(c)(2) does not apply because criteria (iii) of the exception was not met.

COMPANY B

Approximately 6,164 tires were shipped to the U.S. in June 1990 with various tire sizes. The tire sizes for these tires were acceptable substitute sizes for a given tire size listed as a vehicle manufacturer's recommended tire size designation for new motor vehicles produced in or imported into the U.S. in quantities greater than 10,000 during the calendar year preceding the year of the tire's manufacture. For example, some of the tires shipped to the U.S. in June 1990 were of the tire size P255/6OR15. P255/6OR15 is an acceptable substitute tire size for the P225/75R15 referred to above.

Assuming that all of the tires aforementioned shipped to the United States by Companies A and B were sold in the United States, please advise on the following:

1. Is Company A in violation of the UTQGS set forth at 49 C.F.R. S575.104?

2. Is Company B in violation of the UTQGS set forth at 49 C.F.R. S575.104?

3. Is Company C in violation of 49 C.F.R. S575.6(b) and 575.6(d)(2) for the failure to provide consumer information and the failure to submit to the Administrator 10 copies of the information specified in Subpart B of the regulations applicable to the tires offered for sale?

4. In addition to the penalties for the violation of the UTQGS set forth in the Act under Section 109 (15 U.S.C. S1398(a)), are there additional sanctions (i.e., requiring the manufacturer or brand name owner to recall unlawful product or notification procedures intended to identify unlawful product in the marketplace?

Thank you for your consideration of this matter and we appreciate your kind assistance.

ID: nht93-9.20

DATE: December 21, 1993

FROM: Carl Haywood -- Operations Manager, Emergency Response Specialists

TO: John Womack -- Acting Chief Council of NHTSA

TITLE: None

ATTACHMT: Attached to letter dated 3/17/94 from John Womack to Carl Haywood (A42; Std. 207; Std. 208; Std. 209; Std. 210; VSA 102(3))

TEXT:

Emergency Response Specialists (ERS) would like to request an interpretation of the statutes regulating a piece of equipment that we are designing. ERS's primary business is emergency response to chemical spills. We are implementing a nationwide service that will provide quality response, in 7 hours or less, for the contiguous United States (lower 48). Our plan is to provide the logistics of this service using a C-130 Hercules aircraft to transport our response units and a crew of 6 response team members. The Hercules' ramp type loading system will allow us to drive our response unit, a tractor trailer combination, in and out of the cargo bay eliminating the need for ground handling equipment at the airport (a logistics nightmare).

Our response units are designed to transport all six (6) of our response team members, for over the highway transportation three (3) of our team members will ride in the tractor and the remaining three (3) will ride in the trailer. During air transportation all six (6) team members will ride in the trailer. By providing seating with lap and shoulder restraints in the response unit for both ground and air transportation we eliminate the need for special crew cabins for air transportation, and extra vehicles for ground transportation. This conserves the limited space available on the C-130 allowing us to carry all the equipment needed to respond effectively to large scale chemical releases.

Our intent is to abide by all pertinent federal and state regulations. The problem we are having is finding out who regulates crew member seating. This seating is approved according to the FAA under the restricted FAR 91 permit that we will be operating under. DOT stated that they have no regulations regarding this matter, (their regulations only addressed "Transportation for air") and suggested that I contact National Highway Traffic Safety Administration (NHTSA) and Federal Motor Carrier Safety Board (FMCSB). FMCSB had no jurisdiction over this matter and also suggested that I contact NHTSA. According to NHTSA Vehicle Safety Compliance (Mr. Levine) they have no guidelines for crew seating and suggested that I write you requesting written confirmation of this.

We are trying to get the system operational by August 1994 and appreciate any help you could lend in this matter. Due to the long lead times in construction we would appreciate a response as soon as possible. If you have any questions or know of any other agencies we need to contact please call or write at the number listed at the bottom of the preceding page.

Thank you for your assistance.

ID: nht93-9.21

DATE: December 22, 1993

FROM: Wm. J. (Bill) Lee -- House of Representatives, State of Georgia

TO: Honorable Sam Nunn -- U. S. Senate

TITLE: None

ATTACHMT: Attached to letter dated 2/8/94 from John Womack to Sam Nunn (A42; Part 571.7), letter dated 1/11/94 from Sam Nunn to Jackie Lowey, and letter dated 12/17/93 from Tim Adamson to Bill Lee

TEXT:

Reproductions attached come to me from your constituent and mine, Tim Adamson, a highly respected businessman in Clayton County.

Tim and his family are very knowledgeable about surplus vehicles and equipment and in my judgement make some valid points about the Hum V series military trucks and the need to review current policy as to disposition.

It would certainly be appreciated if you would get into this with the military and D.O.T. to insure our government gets the best deal out of the surplus vehicles. Thank you.

ID: nht93-9.22

DATE: December 22, 1993

FROM: Derrick Barker -- John Martin Designs

TO: Mary Versilles (Versailles) -- NHTSA

TITLE: None

ATTACHMT: Attached to letter dated 4/8/94 from John Womack to Derrick Barker (A42; Std. 213)

TEXT:

Please could you advise me of the following.

Regarding Child Car Seat Buckles.

1) Tensile load requirements for the buckle and tongue.

2) Send relevant data regarding temperature resistance on plastic parts. Believed to be Procedure D of American Society for Testing and Materials D756- 78.

3) Advise of appropriate test house for child safety seats and buckles.

ID: nht93-9.23

DATE: December 23, 1993

FROM: Howard M. Smolkin -- Acting Administrator, NHTSA

TO: David L. Boren -- United States Senator (Oklahoma)

COPYEE: Washington Office

TITLE: None

ATTACHMT: Attached to letter dated 11/3/93 from Thomas D. Price to Senator David Boren (OCC 9395); Also attached to letter dated 11/15/93 from David L. Boren to Howard Smolkin; Also attached to letter dated 4/15/93 from Howard M. Smolkin to David Boren

TEXT:

Thank you for your letter on behalf of your constituent, Mr. Thomas Price, concerning this agency's notice of proposed rulemaking (NPRM) to require medium and heavy vehicles to be equipped with an antilock braking system (58 FR 50739, September 28, 1993). Mr. Price states that the agency's proposal is discriminatory and would exclude his braking system from being considered for future use.

By way of background information, the National Highway Traffic Safety Administration (NHTSA) issued the NPRM in response to a requirement of the Intermodal Surface Transportation Efficiency Act of 1991. As discussed in the NPRM, a copy of which is enclosed for your information, the proposed requirements are intended to increase heavy vehicle stability and control during braking, and thus significantly reduce the deaths and injuries caused when these vehicles jackknife or otherwise lose control during braking.

The purpose of publishing an NPRM is to provide all interested persons an opportunity to comment on regulations being considered by the agency. NHTSA then considers all of the comments before reaching a decision concerning whether to adopt the proposed requirements as a final rule.

Thus, if an interested person, such as Mr. Price, believes that a proposed requirement is unnecessarily design restrictive or otherwise objectionable, the appropriate place to make that argument is in a comment on the NPRM. Mr. Price has in fact submitted extensive comments to NHTSA concerning this proposal. Please be assured that this agency will carefully consider Mr. Price's comments, as well as all other comments, before it reaches a decision concerning a possible final rule.

Since NHTSA will reach a decision on whether to issue a final rule and the content of such a final rule only after considering all the comments to the docket, we cannot provide a specific response at this time to the comments raised by Mr. Price. Instead, after carefully considering all comments, NHTSA will provide its responses in the next relevant rulemaking notice, e.g., a final rule or a notice terminating the rulemaking.

I hope this information is helpful.

ID: nht93-9.24

DATE: December 23, 1993

FROM: Howard M. Smolkin -- Acting Administrator, NHTSA

TO: J. Frank Haasbeek -- President, International Transquip Industries, Inc.

TITLE: None

ATTACHMT: Attached to letter dated 10/10/93 from J. Frank Haasbeek to Albert Gore, Jr.; Also attached to letter dated 12/14/93 from Bill Mason (Director of Correspondence, Office of the Vice President, to the Director, Office of Executive Secretariat, U.S. DOT (OCC 9450)

TEXT:

Thank you for your recent letter to Vice President Gore, concerning a rulemaking related to your product. You believe that this agency has proceeded too slowly in the rulemaking. The Vice President has forwarded your letter to me for a reply.

I understand your concern over this issue, but please be assured that this agency is working diligently to reach a final decision concerning this rulemaking. As you know, the notice of proposed rulemaking was published in March of this year, and the agency received a number of conflicting comments. We must carefully assess all of the arguments raised by the commenters before reaching a final decision. We are nearing the completion of that process and expect to announce a final decision in January 1994.

I hope this information is helpful and appreciate your patience in this matter.

ID: nht93-9.25

DATE: December 23, 1993

FROM: John Womack -- Acting Chief Counsel, NHTSA; Signature by Kenneth N. Weinstein

TO: Thomas Luckemeyer -- ITT Automotive Europe

TITLE: FAX 07142/73-2895

ATTACHMT: Attached to Fax dated 12/10/93 from Thomas Luckemeyer to Taylor Vinson (OCC-9418)

TEXT:

This responds to your FAX of December 10, 1993, to Taylor Vinson of this Office. You have asked the following questions with respect to the permissibility of rear fog lamps on U.S. cars:

"Is the rear fog lamp in a combined rear lamp unit permissible in all the states of the U.S.? There is no statement in the FMVSS 108."

Paragraph S5.1.3. of Standard No. 108 prohibits the installation as original equipment of additional lamps such as rear fog lamps if the additional lamp "impairs the effectiveness of lighting equipment required by the standard." The determination of whether a rear fog lamp in a combined rear lamp unit impairs the effectiveness of other lighting equipment is initially that of the manufacturer of the vehicle on which the lamp is installed. Unless such a determination is clearly erroneous, this agency will not question it.

We do not know whether a rear fog lamp in a combined rear lamp unit is permissible in all the States. Because a fog lamp is not required motor vehicle equipment under Federal law, each State in which it is used may regulate it according to its own laws. We are unable to advise you on the laws of the individual States, and suggest that you ask the American Association of Motor Vehicle Administrators (AAMVA) for an opinion. Its FAX number is 001 703 522 1553, and its address is 4600 Wilson Boulevard, Arlington, Virginia 22203.

"Which photometric requirements do we have to fulfill for the rear fog lamp?"

There are no Federal requirements that apply to rear fog lamps, and, as noted above, we are not conversant with state requirements. For your information, the latest specification of the Society of Automotive Engineers for this item of equipment is SAE Recommended Practice J1319 AUG87 "Fog Tail Lamp (Rear Fog Light) Systems."

"Is the certification of the combined rear lamp unit binding upon the whole states of the U.S.?"

No. The certification of the vehicle manufacturer is its representation that the vehicle complies with all applicable Federal motor vehicle safety standards, including paragraph S5.1.3 of Standard No. 108. A State has no authority to question this certification.

However, a State is permitted to have a State vehicle lighting standard

provided that the State lighting standard is identical to the Federal lighting standard in those areas covered by the Federal lighting standard. Under these circumstances, a State may enforce the State lighting standard even if the vehicle is certified as conforming to the Federal lighting standard. Furthermore, a State may have its own State lighting standard in those areas where there is no Federal lighting standard, such as fog lamps.

"Do you have a list of lighting equipment for cars and the necessary requirements in the different states of the U.S."

AAMVA may be able to provide you with this information as we are unable to. Because State requirements must be identical with respect to the lighting equipment required by Standard No. 108, State specifications and prohibitions will differ only with respect to supplementary lighting equipment not covered by Standard No. 108 such as cornering lamps and front and rear fog lamps.

ID: nht93-9.26

DATE: December 27, 1993

FROM: John Womack -- Acting Chief Counsel, NHTSA; Signature by Kenneth Weinstein

TO: Lisa A. Norris

TITLE: None

ATTACHMT: Attached to letter dated 12/1/93 from Lisa A. Norris (OCC-9427) and letter dated 8/31/90 from Paul Jackson Rice to David Holscher (Std. 108)

TEXT:

This is in reply to your letter of December 1, 1993, to Robert Hellmuth of this agency. You have written us questioning the disconnection of your original equipment center highmounted stop lamp when an aftermarket spoiler with lamp was installed on your Honda. American Honda has referred you to us, referencing an interpretation by our form Chief Counsel, Paul Jackson Rice.

I enclose a copy of Mr. Rice's letter of August 31, 1990, to David Holscher which sets forth the agency's views on this subject. These views remain our position.

The disconnecting of your lamp appears permitted under Federal Motor Vehicle Safety Standard No. 108 according to this interpretation. Because Federal authorities do not interpret the laws of the individual states, we are unable to comment on the Louisiana provisions that you paraphrase, except to note that "tail lights", as you refer to them, are not "stop lamps" under Standard No. 108. Taillamps are another item of lighting equipment and have no relevance to the wiring of the center highmounted stop lamp.

ID: nht93-9.27

DATE: December 28, 1993

FROM: Lloyd Boshaw -- C.E.O., Auto Trim

TO: John Womack -- Acting Chief Consul, NHTSA

TITLE: None

ATTACHMT: Attached to letter dated 1/21/94 from John Womack to Lloyd Boshaw (A42; Std. 108) and letter dated 8/31/90 from Paul Jackson Rice to David Holscher

TEXT:

We have a small business installing after market accessories for automobile dealers and customers. Among the accessories installed are the rear deck lid spoilers. We remain confused over the question should the Vehicle manufacturer's brake light in the rear window be disconnected when a spoiler is added (which has a brake light). This would mean you would be adding one additional brake light.

Our contacts with local agencies have indicated that they want and prefer the additional safety illumination from the added brake light in the spoiler.

The photographs and sketches will provide a clearer explanation.

In our effort to make sure we provide the finest service to our dealers we wanted to be sure we do not have a question concerning this matter.

The defined question is, When we add a spoiler to a vehicle (which has a brake light) must we disconnect the vehicle manufacturer's brake light in the rear window?

All logic that we can find says "no." Some concerns result from disconnecting the vehicle manufacturer's brake light in the rear window when it is not necessary. First, the additional brake light in the spoiler provides additional brake light illumination for safety. Disconnecting the vehicle manufacturer's brake light in the rear window creates a warning light in the instrument cluster to go on indicating a brake light is out. This can be overcome by relays etc. However, we believe the manufacturer's brake light and wiring should be left intact whenever possible. Only one large dealer and account has asked that we disconnect the light and we are awaiting your reply until we take on his account.

We are informed that spoilers are being installed all over the country without disconnecting the vehicle manufacturer's brake light.

As you know most small businesses are in tough times due to the current economy and in that fact we would like to ask you for an opinion or judgment as soon as possible so we may continue business with as little interruption as absolutely necessary, it will be greatly appreciated.

ID: nht93-9.28

DATE: December 30, 1993

FROM: John Womack -- Acting Chief Counsel, NHTSA; Signature by Kenneth N. Weinstein

TO: Dennis Platt -- Supervisor, Vehicle Safety & Equipment Section, State of Utah, Department of Public Safety, Utah Highway Patrol

TITLE: None

ATTACHMT: Attached to letter dated 12/7/93 from Dennis Platt to Office of the Chief Counsel (OCC-9439), NHTSA, letter dated 3/4/93 from John Womack to Robert A. Ernst, and letter dated 1/19/90 from Stephen P. Wood to Linda L. Conrad

TEXT:

This responds to your letter of December 7, 1993, requesting confirmation of a statement made by a NHTSA officer that there is no federal regulation that requires replacement of a deployed air bag.

I am enclosing two letters that explain legal obligations to replace air bags which have been deployed. The first letter, dated January, 19, 1990, is to Ms. Linda L. Conrad. The second letter, dated March 4, 1993, is to Mr. Robert A. Ernst. As explained in those letters, Federal law does not require replacement of a deployed air bag in a used vehicle. In addition, there is no Federal law that prohibits selling a used vehicle with a supplemental restraint that is inoperable because of a previous deployment. However, our agency strongly encourages dealers and repair businesses to replace deployed air bags whenever vehicles are repaired or resold, to ensure that the vehicles will continue to provide maximum crash protection for occupants. Moreover, a dealer or repair business may be required by state law to replace a deployed air bag, or be liable for failure to do so.

I am also enclosing a copy of the information sheet referred to in the two letters discussed above. I hope you find this information helpful. If you have any other questions, please contact Mary Versailles of my staff at this address or by phone at (202) 366-2992.