ID: 1984-3.8

TYPE: INTERPRETATION-NHTSA

DATE: 08/17/84

FROM: AUTHOR UNAVAILABLE; Frank Berndt; NHTSA

TO: Burt McMillian

TITLE: FMVSS INTERPRETATION

TEXT: This responds to your recent letter to Mr. Steve Kratzke of my staff, asking for information about rebuilt steel wheels for use on motor vehicles other than passenger cars. For the purposes of this response, I will respond only for the rim portion of the wheel, since both the regulations you inquired about apply only to rims, and not the entire wheel assembly. Specifically, you asked about the applicability of a regulation issued by the Occupational Safety and Health Administration (OSHA) and this agency's Standard No. 120, Tire selection and rims for motor vehicles other than passenger cars (49 CFR @ 571.120). This agency does not offer opinions on the applicability of other Federal agency regulations, and Standard No. 120 does not apply to rebuilt rims.

You stated in your letter that one of OSHA's regulations states that "no cracked, broken, bent or otherwise damaged rim components shall be reworked, welded, brazed, or otherwise heated", and that OSHA interprets the center disc as a rim component subject to the requirements of that regulation. You further stated that a staff member in our Office of Defect Investigations offered his opinion that the OSHA regulation did not apply to the center disc. This agency does not interpret the regulations administered by other Federal agencies, unless and until such time as that regulation appears inconsistent with our statutory authority. There is no apparent conflict between the OSHA regulation and our authority, so we defer to their interpretation of that regulation.

You further stated in your letter that "the only other regulation concerning rebuilding wheels is NHTSA Standard No. 120 concerning identification of rebuilt wheels." We have stated in several past interpretations that Standard No. 120 does not apply to remanufactured or rebuilt rims. Section S5.2 of Standard No. 120 does set forth rim marking requirements, but these apply only to new rims. Section 108(b)(1) of the National Traffic and Motor Vehicle Safety Act (hereafter referred to as "the Safety Act") (15 U.S.C. 1397(b)(1)) specifies that the requirements of our safety standards shall not apply after the first purchase of a rim in good faith for purposes other than resale. Since the components of rebuilt rims have already been used on the public roads, the requirements of Standard No. 120 do not apply to the rebuilding of those rims.

You concluded your letter with the observation that these rims are subject to significantly more stress today than they were ten years ago, and that repaired or rebuilt rims should be "looked at". There is a course of action you might wish to pursue if you believe this perceived problem presents a serious threat. You may file a petition for rulemaking with this agency, asking us to establish some strength requirements for new rims. Section 108(a)(2)(A) of the Safety Act specifies that no manufacturer, distributor, dealer, or motor vehicle repair business shall "knowingly render inoperative any . . . element of design installed on or in . . . an item of motor vehicle equipment in compliance with an applicable Federal motor vehicle safety standard, . . . " If Standard No.

120 were amended to include some strength requirements for new rims, those persons could violate section 108(a)(2)(A) of the Safety Act if they knowingly weaken the rims. For your information I have enclosed a copy of our regulation which sets forth the requirements for petitions for rulemaking (49 CFR Part 552). Should you choose to file such a petition, please pay particular attention to the requirements of @ 552.4, which explains the information which must be included in the petition.

I thank you for bringing this matter to our attention, and believe that the safety concerns of people like yourself who are daily involved with tires and rims are an invaluable help to this agency. Please do not hesitate to contact me if you have any further questions or concerns.

ENCLS.

LES SCHWAB WAREHOUSE CENTER INC.

June 26, 1984

Steve Kratzke Chief Consul National Highway Traffic Safety Administration

Dear Mr. Kratzke:

During a recent telephone conversation with Gary Woodford of NHTSA, he suggested I write to you and get your opinion on rebuilding truck wheels.

There seems to be a great deal of confusion over several regulations regarding rebuilding of steel truck wheels. OSHA regulation 1910.77 (F) 9. states "no cracked, broken, bent or otherwise damaged rim components shall be reworked, welded, brazed or otherwise heated". It is OSHA's opinion that the center disc is a rim component, therefore, cannot be welded. Mr. Woodford's opinion was that OSHA's jurisdiction only concerns lock rings or parts involved in mounting safety.

The only other regulation concerning rebuilding wheels is NHTSA standard120 concerning identification of rebuilt wheels. As I understand this regulation all that is required is some sort of stamp such as date, initials or trademark that is not registered or otherwise traceable.

My concern is that there are people welding and/or rebuilding wheels that have no concept of the engineering or design of steel wheels. As an example; recently I ran across a rebuilder who was cutting out the mounting surface of the disc and welding in a new one. When he bored the stud holes he was putting a chamfered or beveled seat instead of a ball seat. It is highly probable that unless excess amount of torque were applied to the cap nuts this wheel would come loose. The problem is that any tire service store that changes that wheel in the future then becomes liable if the wheel comes loose. The difference between a chamfered or beveled seat and a ball seat is so minute that most service people would never notice the difference.

With the advent of the radial tire, greater allowable weight limits and deregulation, wheels are subjected to a lot more stress than they were ten years ago. Therefore, wheels today must be of much better quality and it would seem that repairing of wheels or rebuilding them should be looked at.

I would appreciate you sending me any information or opinions on this subject that would help clear up this muddy situation.

Thank you.

Burt McMillan

ID: nht88-4.34

TYPE: INTERPRETATION-NHTSA

DATE: 12/09/88

FROM: ERIKA Z. JONES -- NHTSA CHIEF COUNSEL

TO: DONALD N. STAHL -- DISTRICT ATTORNEY OFFICE OF DISTRICT ATTORNEY BUREAU OF INVESTIGATION

TITLE: MCCOY TIRE SERVICE CENTER D.A. NO. CF696

ATTACHMT: UNDATED LETTER FROM JOHN T FORTH AND DONALD N STAHL TO ERIKA Z JONES; RE MCCOY TIRE SERVICE CENTER D.A. NO. CF696; OCC 1749; LETTER DATED 03/01/88 FROM DAVE TAYLOR TO JOHN FORTH; LETTER DATED 07/13/87 FROM ERIKA Z JONES TO JACK DENIJS; LETTER D ATED 05/19/87 FROM JACK DENIJS TO CHIEF COUNSEL NHTSA; OCC-500; RE COVERED DOT NUMBERS ON REMANUFACTURED TRUCK CASINGS

TEXT: Dear Mr. Stahl:

This responds to your letter asking about requirements concerning the importation of tire casings. According to your letter, a routine inspection by the California Highway Patrol (CHP) of a local school district's buses disclosed recapped tires on a bus which did not have DOT markings on the tires. The CHP learned that the tire casings were originally designed for use by a rubber tire train in Japan and were new tires that had been imported for recapping purposes. The tire casings were imported as sli cks (no tread design), and the slick was removed. The tires were then recapped using the "bondag" process and sold to the school district. You asked whether it is permissible to import this type of tire casing and, if so, whether the particular type of tire casing meets Department of Transportation standards. Your questions are responded to below. Our opinions are based on the facts provided in your letter.

Before addressing your specific questions, I will provide background information about requirements for tires. All tires which are subject to a Federal motor vehicle safety standard must have the symbol "DOT" molded into the sidewall by the manufacturer or retreader, if those tires are to be imported into the United States. This symbol represents a certification by the manufacturer or retreader that the tire complies with all requirements of the applicable safety standards.

New tires for use on school buses are subject to Federal Motor Vehicle Safety Standard No. 119 (49 CFR 571.119). Section S6.5(a) of the standard requires that all new tires for use on motor vehicles other than passenger cars have the DOT symbol molded i nto the sidewall by the manufacturer. Tires without this symbol may not be legally imported. This is also true for used tires manufactured on or after the effective date of Standard No. 119, March 1, 1975, with one narrow exception.

Used tires for use on motor vehicles other than passenger car which have less than 2/32 inch of tread remaining and which are imported solely for the purpose of being retreaded in this country prior to resale may be imported without a DOT symbol on the s idewall. I have enclosed a copy of a June 18, 1981 letter to Mr. Roy Littlefield, which explains in detail the requirements of this narrow exception to the requirements that used tires have a DOT symbol on the sidewall to be legally imported.

No Federal safety standard is applicable to retreaded tires for use on motor vehicles other than passenger cars. They may be imported without certification of compliance by the retreader. However, these tires must have a tire identification number mark ed on the sidewall, per the requirements of 49 CFR Part 574.

Your first question is whether it is permissible to import the type of tire casing at issue. As indicated above, new tires for use on school buses may not be imported without the DOT symbol. However, it is our opinion that the casings at issue are mate rials needing further manufacturing operations to become completed items of motor vehicle equipment, rather than finished items of motor vehicle equipment (tires which could lawfully be used or sold as they are). This opinion is based on the fact that th e casings are being imported as slicks, which generally cannot be used on the public highways under state laws since they have no tread, and since the casings are being imported for purposes of recapping.

Your second question is whether the casings at issue meet Department of Transportation standards. A key issue in answering this question is whether the tires are considered to be retreaded tires or new tires subject to Standard No. 119. It is our opini on that any tires manufactured by applying new tread to new casings are considered new tires rather than retreaded tires, and are subject to the same requirements as any other new tires.

The National Highway Traffic Safety Administration defines "retreated" as "manufactured by a process in which a tread is attached to a casing." The term "casing" is defined as "a used tire to which additional tread may be attached for the purpose of retr eading." See 49 CFR Part 571.117 and 49 CFR Part 574.3(b).

In the situation you described in your letter, the casings were not used tires at the time the "recapping" took place. Instead, they were simply new tires (originally designed for use on a rubber tire train) which were imported for recapping purposes. These casings would not be considered used tires until they have actually been used (presumably on a train prior to importation, or on the highway, with the new tread attached, in the United States.)

Since the tires at issue were not used tires at the time they were recapped, they are not retreaded tires but are instead new tires, subject to Standard No. 119. The tires would appear not to comply with Standard No. 119, given the absence of the DOT sy mbol.

Your letter states that the original manufacturer of the tire has stated that the tires are not suitable by any means for highway use. If the tires are not suitable for highway use after they have been recapped, they may contain a safety-related defect. See 15 U.S.C. 1411 et seq. We note that the defect provisions of the National Traffic and Motor Vehicle Safety Act apply to items of motor vehicle equipment regardless of whether there is an applicable safety standard.

We hope this information is helpful, and we are referring your letter to our Office of Enforcement.

ENCLOSURE

ID: nht76-2.31

DATE: 03/05/76

FROM: AUTHOR UNAVAILABLE; S. P. Wood; NHTSA

TO: Department of California Highway Patrol

TITLE: FMVSS INTERPRETATION

TEXT: This is in reply to your letter of March 10, 1976, asking whether S4.6(b) of Motor Vehicle Safety Standard No. 108 allows a flashing side marker lamp "in any location on the side of a motor vehicle without having to comply with State law pertaining to side-mounted turn signals."

S4.6(b) allows side marker lamps to flash for signalling purposes. Since a flashing side marker lamp is in essence a side turn signal lamp, any State regulation specifically addressed to location and flash rate of side turn signals would appear to be preempted by Standard No. 108, if the side marker lamp is combined with a side turn signal lamp. If the side turn signal lamp is a separate lamp, then it would be subject to State regulation.

Your inquirer wishes to install "a side marker lamp on each side near the middle of the trailer to flash with the turn signal lamps." If the lamp to be added is not the intermediate side marker lamp required by Standard No. 108 for trailers whose length is 30 feet or more, it would be governed by the California Vehicle Code and not preempted.

We intend to address the issues of side mounted turn signal lamps, flashing side marker lamps, and flashing headlamps in a rulemaking proposal whose publication is imminent, and I will include your letter in the Docket as a comment to be considered.

YOURS TRULY,

DEPARTMENT OF CALIFORNIA HIGHWAY PATROL

March 10, 1976

File No.: 61.A218.A4343

James C. Schultz Chief Counsel National Highway Traffic Safety Administration

We have a question concerning an interpretation of Section S4.6(b) of FMVSS No. 108. This paragraph states that "means may be provided to flash headlamps and sidemarker lamps for signaling purposes".

We have had an inquiry from a supplier to a major trailer manufacturer as to whether or not he can install a sidemarker lamp on each side near the middle of the trailer to flash with the turn signal lamps. The California Vehicle Code provides that "side-mounted turn signal lamps of an approved type projecting a flashing amber light to either side may be used to supplement the front and rear turn signals. Side-mounted turn signal lamps mounted to the rear of the center of the vehicle may project a flashing red light no part of which shall be visible from the front." The Administrative Regulations require the approved side turn signal lamps to meet the same requirements as SAE Standard J914a.

These standards were adopted to assure that lamps installed on a vehicle as a side turn signal lamp had sufficient performance to be of value to other motorists both day and night, whether mounted on a passenger car, a truck or a trailer. A range of mounting heights was established in our regulations so that the side turn signal lamp would be near the eye height of drivers alongside the vehicle.

In the past, the only vehicles flashing the sidemarker lights as allowed by your standard were passenger cars. In these cases, we had read your standard as permitting the minimum number of sidemarker lamps required by your standard to flash but not giving authority for the indiscriminate addition of numerous other sidemarker lamps in other locations on the side of the vehicle.

We do not see any particular problem with allowing a required sidemarker lamp to flash simultaneously with a required turn signal lamp on the same side and on the same end of the vehicle. Unfortunately, one major passenger car manufacturer selected a system that caused the sidemarker lamps to flash alternately with the turn signals which, in our opinion, detracts from the signal value of the required turn signal instead of adding to it, particularily when both signals are seen to flash alternately at certain angles from the front or rear of the vehicle.

We now come to the question. Does Section S4.6(b) permit a manufacturer to install and flash with the turn signal any sidemarker lamp in any location on the side of a motor vehicle or trailer without having to comply with State law pertaining to side-mounted turn signals?

If the answer is "yes", we ask that you consider an appropriate revision to FMVSS No. 108 within the near future. We suggest that an amendment be proposed to require the side turn signals to flash simultaneously and in unison with the appropriate turn signal rather than alternately with the signal. In addition, we request that:

1. Only the minimum required sidemarker lamps on the each end of the vehicle be allowed to flash with the turn signal lamps.

2. Only sidemarker lamps near the eye height of passenger car drivers alongside the vehicle be allowed to flash. Sidemarker lamps at the extreme tops of trucks and trailer lamps are so far removed from the turn signal that another driver seeing them blink would likely be distracted by them instead of relating them to a turn being signaled.

3. New provisions be worded so attempts of various state laws to require higher-performing side mounted turn signals that are effective in the daytime are not placed in limbo because the Federal Standard allows a far less effective lamp of only 0.25 to 0.62 candlepower to flash in its place.

4. High mounted sidemarker lamps on buses not be allowed to flash as part of the turn signal system, because transit buses are permitted in this State to simultaneously flash all clearance and sidemarker lamps as a crime warning signal when driver or passengers are accosted. These signals are visible both from police patrol cars and police helicopters. Before-and-after surveys have shown that they are quite effective in making substantial increases in the rate of apprehension of suspects.

5. Headlamps not be allowed to flash with the turn signal lamps as now permitted. It is more important that a driver of a vehicle be able to see a lighted roadway in the direction in which he is going rather than using the headlamps to supplement an already effective front turn signal.

We would appreciate receiving your interpretation of the flashing headlamp and sidemarker lamp provisions. If you wish, we will be pleased to send you copies of our regulations on side turn signal lamps, alternately flashing headlamps for emergency vehicles, and data on the reduction in crime on buses following the installation of flashing crime warning lamps.

WARREN M. HEATH Commander Engineering Section

ID: nht88-3.87

TYPE: INTERPRETATION-NHTSA

DATE: 11/01/88

FROM: ERIKA Z. JONES -- NHTSA CHIEF COUNSEL

TO: BEVERLY B. BYRON -- CONGRESS U.S. HOUSE OF REPRESENTATIVES

TITLE: NONE

ATTACHMT: 8/24/88 letter from Joseph L. Ciampa, Jr. to Beverly B. Byron; 8/14/85 memo from C. Richard Fravel to Whom it May Concern; 8/4/88 memo from Arthur J. Lomart to Whom it May Concern; 8/1/88 letter from C.E. Shue to Joseph Ciampa, Jr.; 9/12/88 letter from Nancy F. Miller to Beverly B. Byron; 8/25/88 letter from Bevery B. Byron to Nancy Miller; 11/29/89 (est) letter from Jeffrey R. Miller to John D. Dingell (A34; Std. 205); 9/22/89 letter from John D. Dingell to Jeffrey R. Miller; 8/25/89 letter from Constance A. Morella to Norman Y. Mineta; 7/31/89 letter from W. Marshall Rickert to Constance A. Morella; 7/8/88 letter from Erika Z. Jones to Norman D. Shunway (Std. 205)

TEXT: Dear Ms. Byron:

Thank you for your recent letter on behalf of your constituent, Mr. Joseph L. Ciampa, Jr., who received a citation from the Maryland State Police, Automotive Safety Enforcement Division, for noncomplying window tinting. You asked us to review Mr. Ciampa 's letter and provide you with our comments and appropriate information. I am pleased to have the opportunity to do so.

Mr. Ciampa suffers from diabetes, which makes his eyes extremely sensitive to sunlight. Because of this, the side windows on his passenger automobile apparently were tinted such that the tinted glazing no longer complied with State of Maryland requireme nts. There is no indication whether Mr. Ciampa did the tinting on his own or had an aftermarket business do it. According to Mr. Ciampa's letter, he was previously given a medical exemption by the State of Maryland that permitted him to drive with wind ows tinted differently than Maryland law permits. However, Mr. Ciampa stated that Maryland officials have now told him that the Federal government will not allow Maryland to grant any more medical exemptions. This information is inaccurate.

Some background information on the Federal requirements in this area may be helpful. Our agency, the National Highway Traffic Safety Administration (NHTSA) is authorized, under the National Traffic and Motor Vehicle Safety Act, to issue safety standards applicable to new motor vehicles and certain items of motor vehicle equipment. The safety standard that specifies performance and location requirements for glazing used in vehicles is Standard No. 205, Glazing Materials (49 CFR 571.205). These require ments include specifications for minimum levels of light transmittance (70 percent in areas requisite for driving visibility, which includes all windows in passenger cars). Under Standard 205 no manufacturer or dealer is permitted to install solar films and other sun screen devices in a new vehicle, without certifying that the vehicle continues to be in compliance with the light transmittance and other requirements of the standard.

2

Federal law does not permit States to grant any exemptions, including medical exemptions, from the safety standards. Thus, we assume that Mr. Ciampa's car as delivered to him complied with Standard No. 205's requirement for at least 70 percent light tra nsmittance in all of its windows, including the side windows that are now the subject of dispute.

The requirement that a car comply with all applicable safety standards applies only until the car is first sold to a consumer. After a vehicle is first sold to a consumer, any modifications to the vehicle's windows, including the tinting performed on th e side windows of Mr. Ciampa's car, are affected by section 108(a)(2)(A) of the Safety Act. That section prohibits any manufacturer, dealer, distributor, or repair business from "rendering inoperative" any device or element of design installed in a vehi cle in compliance with any safety standard. In the case of windows in a passenger car, this means that no manufacturer, dealer, distributor, or repair business could install a sun screen device or window tinting that would result in a light transmittanc e of less than 70 percent for any window of the car, or otherwise cause the car to no longer comply with the other requirements of Standard No. 205. Violations of this "render inoperative" prohibition can result in Federal civil penalties to the manufac turer, dealer, distributor, or repair business of up to $ 1000 for each noncomplying installation.

Again, Federal law does not permit States to grant any exemptions, including medical exemptions, from the "render inoperative" prohibition in Federal law. Thus, the State of Maryland does not have any authority to permit manufacturers, distributors, deal ers, or repair businesses to install tinting on the side windows of passenger cars if such tinting causes those windows to have less than 70 percent light transmittance. Instead, the manufacturer, distributor, dealer, or repair business that installed s uch tinting on Mr. Ciampa's side windows would be liable for the civil penalty discussed above.

Please note that Federal law does not affect vehicle owners. Vehicle owners may alter their own vehicles and operate them on the highways as they please, even if the vehicle's windows no longer comply with the requirements of Standard No. 205. Hence, n o provision of Federal law or this agency's regulations prevents Mr. Ciampa himself from tinting his side windows.

However, each of the individual States has the authority to regulate the modifications that may be made to vehicles by their owners and to establish requirements for vehicles to be registered or operated in that State. It would seem that the State of Ma ryland has exercised its authority to prohibit windows being tinted in the way that Mr. Ciampa's are. The wisdom and fairness of applying that prohibition to individuals with Mr. Ciampa's condition is something to be decided by the State of Maryland, no t the Federal government. Contrary to the statement in Mr. Ciampa's letter, we have never told Maryland or any other State how to administer their laws and regulations with respect to the operational use of vehicles in the State.

3

I hope this information is helpful. If you have any further questions or need some more information on this subject, please do not hesitate to contact Ms. Susan Schruth of my staff at this address, or by telephone at (202) 366-2992.

Sincerely,

ref:VSA#205

SECTION 1. Section 25251.5 of the Vehicle Code is amended to read:

25251.5 (a) Any motor vehicle may also be equipped with a system in which an amber light is center mounted on the rear of a vehicle to communicate a component of deceleration of the vehicle, and which light pulses in a controlled fashion at a rate whi ch varies exponentially with a component of deceleration

(b) Any motor vehicle may be equipped with two amber lamps on the rear of the vehicle which operate simultaneously with not more than four flashes within four seconds after the accelerator pedal is in the deceleration position and which are not lighte d at any

ID: 20696.ogm

Mr. Tom Brunson
Trailer Component Innovations
111 Park Drive
Forsyth, GA 31029

Dear Mr. Brunson:

This is in response to your letter requesting information regarding the regulations applicable to the use of hydraulic brakes on trailers with axle capacities of 3500 to 8000 pounds per axle. I apologize for the delay in our response. Specifically, you wish to know if trailers of this type would be required to be equipped with an antilock braking system (ABS).

Your letter states that the trailers would be equipped with hydraulic axle brakes controlled by an electric brake controller. This electric brake controller, similar in design to the type usually used for electric trailer brakes, would draw electric power from the tow vehicle. In addition, electric power from the tow vehicle would be used to power an air compressor mounted on the trailer. You then ask if ABS would be required for a non-commercial trailer with a gross vehicle weight rating of less than 26,000 pounds under the following two scenarios:

1. An electric brake controller is mounted on the tow vehicle with the force used to apply the trailer brakes being supplied by compressed air from an air tank and air compressor mounted on the trailer. Application of the hydraulic trailer brakes would be controlled by the electric brake controller. The controller would, when it sensed the tow vehicle decelerating or accelerating or when activated by an electric control available to the driver, electrically activate valves modulating the air pressure supplied to the mechanism used to apply or release the hydraulic trailer brakes.
2. An electric brake controller is mounted on the tow vehicle. A spring mechanism would be used to supply the force used to apply the trailer brakes. The amount of force applied to actuate the hydraulic brakes by the spring mechanism would be controlled by air pressure supplied by an air tank and air compressor mounted on the trailer. Application of the hydraulic trailer brakes would be controlled by the electric brake controller when it sensed deceleration or acceleration of the tow vehicle or when activated by an electric control available to the driver. The controller would, as required, electrically activate valves modulating the air pressure supplied to counteract the force applied to the hydraulic brakes by the spring mechanism.

I am pleased to have this opportunity to explain our regulations to you. The National Highway Traffic Safety Administration (NHTSA) does not provide approvals of motor vehicles or motor vehicle equipment. Under the National Traffic and Motor Vehicle Safety Act ("Safety Act"), it is the responsibility of the manufacturer to ensure that its vehicles or equipment comply with applicable standards issued by this agency. A manufacturer then certifies that its vehicles or equipment comply with applicable standards.

NHTSA has issued several standards applicable to brake systems: Standard No. 105, Hydraulic Brake Systems; Standard No. 121, Air Brake Systems; and Standard No. 135, Passenger Car Brake Systems. Standard No. 105 specifies requirements for hydraulic service brake and associated parking brake systems, and applies to new passenger cars, multipurpose passenger vehicles, trucks, and buses equipped with hydraulic brake systems. Standard No. 121 establishes performance and equipment requirements for braking systems on vehicles equipped with air brake systems, and applies to almost all new trucks, buses, and trailers equipped with air brake systems. Standard No. 135 specifies requirements for hydraulic service brake and associated parking brake systems for new passenger cars built after September 1, 2000 and for new multipurpose passenger vehicles, trucks and buses with a gross vehicle weight rating of 3,500 kilograms (7,716 pounds) or less built after September 1, 2002. Of these three standards, Standard No. 121 is the only standard which applies to trailers.

Standard No. 121 (49 CFR 571.121) specifies performance requirements for trucks, buses and trailers equipped with air brake systems. The purpose of the standard is to insure safe braking performance of vehicles under normal and emergency conditions. S5.1.6 of Standard No. 121 requires that truck tractors equipped with air brake systems manufactured on and after March 1, 1997 and single-unit trucks, buses, trailers, and trailer converter dollies equipped with air brake systems manufactured on and after March 1, 1998 must be equipped with antilock brake systems (ABS) in order to operate in the United States (U.S.).

We note, however, that Standard No. 121 only applies to vehicles with air brake systems. An air brake system is defined in S4 of the Standard as follows:

Air brake system means a system that uses air as a medium for transmitting pressure or force from the driver control to the service brake, including an air-over-hydraulic brake subsystem, but does not include a system that uses compressed air or vacuum only to assist the driver in applying muscular force to hydraulic or mechanical components.

The devices described in your letter appear to use compressed air as a means to actuate or control the hydraulic service brakes of a trailer. The application of this compressed air is controlled not by the driver, but by the electric brake controller. While the driver may, in some applications, have the ability to activate the electric brake controller through a dash mounted switch, air is not used as a medium for transmitting pressure or force from the driver control to the service brake on the trailer. Accordingly, the system you describe is not, under Standard No. 121, an air brake system and is not subject to the ABS requirements of that Standard.

You should, however, also be aware of the requirements of Standard No. 106, Brake Hoses, which specifies requirements for motor vehicle brake hose, brake hose assemblies, and brake hose end fittings. That standard applies to new motor vehicle equipment as well as to new motor vehicles. You should check to see if any parts of your devices are subject to the requirements of Standard No. 106. In addition, Standard No. 116, Motor Vehicle Brake Fluids, sets forth the requirements for all fluid for use in motor vehicle hydraulic brake systems. Any fluid used in a hydraulic brake system must meet the requirements of Standard No. 116.

I hope this information is helpful. If you have any further questions about NHTSA's safety standards, please feel free to contact Otto Matheke of my staff at this address or by telephone at (202) 366-2992.

Sincerely,
Frank Seales, Jr.
Chief Counsel
ref:121
d.5/4/00

ID: 2779y

Satoshi Nishibori, Vice President
Industry-Government Affairs
Nissan Research and Development
Suite 902
750 17th St., N.W.
Washington, D.C. 20006

Dear Mr. Nishibori:

This responds to your letter seeking to confirm your understanding of the scope and application of the "captive import" definition set forth at 49 CFR 533.4(b)(2), and used in specifying light truck CAFE standards.

NHTSA's regulations define a "captive import" as a light truck which is "not domestically manufactured but which is imported in the 1980 model year or thereafter by a manufacturer whose principal place of business is in the United States." The agency adopted this definition beginning with the 1980 model year in order to prevent the standards from encouraging the increased importation of these vehicles and exportation of domestic jobs. See 43 FR ll996, March 23, l978.

Your letter explains that you do not believe that the light trucks manufactured in the U.S. by Nissan's U.S. manufacturing subsidiary (NMM, which is jointly-owned by the parent Nissan Motor Co. Ltd. (NML) in Japan and its wholly-owned U.S. importation and distribution subsidiary (NMC)), should be classified as captive imports. Your letter also states that light trucks imported by NMC should not be classified as captive imports. As explained below, I have concluded that neither the light trucks imported by your U.S. subsidiary, nor trucks manufactured by your U.S. manufacturing operation should be considered "captive imports."

Section 501(8) of the Motor Vehicle Information and Cost Savings Act (the Act) defines the term "manufacturer" as meaning "any person engaged in the business of manufacturing automobiles. . . ." The term "manufacture" is then defined in section 50l(9) as meaning to "produce or assemble in the customs territory of the United States, or to import."

Under these definitions, which are also used in Part 533, NMC is a manufacturer of light trucks imported for the parent company. Since NMC's principal place of business is in the U.S., one might initially conclude that all of Nissan's imported light trucks should be classified as captive imports. However, that is not a necessary conclusion since there may be more than one manufacturer of these vehicles.

NHTSA has concluded in the past that a second person may be regarded as a manufacturer of a vehicle manufactured by another person if that second person has a sufficient role in the manufacturing process that it can be deemed the "sponsor" of the vehicle. See, for example, the enclosed February 19, 1987 interpretation to a confidential addressee.

For Nissan's imported light trucks, the act of importation is the key manufacturing activity under the statute. While NMC does the actual importing, NML is responsible for the creation and production of the vehicles imported to the U.S. It designs models specifically for the U.S. market, and created NMC for the purpose of importing and marketing these vehicles. NML can be seen as "sponsoring" the importation of Nissan light trucks. Moreover, applying basic principles of the law of agency, NML, as sponsor, may be considered the principal. It is therefore our opinion that NML and NMC are both importers of the Nissan vehicles being brought into the U.S., and hence both are manufacturers under the statute. This situation is obviously distinguished from circumstances where the importer is not connected with the foreign manufacturer, e.g., so called grey market importers.

NHTSA believes it is appropriate, in determining whether the vehicles are "captive imports," to look at the totality of the circumstances surrounding the production, importation and marketing of the vehicles. In this case, NML controls all aspects of the Nissan light trucks imported into the U.S. Further, NML exercises complete control over NMC, and created NMC for the purpose of importing and marketing NML's products in the U.S. Indeed, NMC exists primarily to serve NML as a conduit into the U.S. market.

I note that this relationship is clearly distinguished from the circumstances of the typical captive import. In lieu of producing certain vehicles in this country, a domestic manufacturer imports and markets in this country vehicles (captive imports) supplied by a foreign manufacturer with which it has a special relationship. In such a case, the domestic manufacturer is not under control of the foreign company. Moreover, the domestic manufacturer does not serve primarily as a conduit to the U.S. market for the imported vehicles.

Since NML has its principal place of business in Japan, and exercises complete control over NMC, I conclude that vehicles manufactured by NML and imported into the U.S. by NMC are not captive imports. Moreover, since almost all foreign manufacturers utilize U.S. subsidiaries to import vehicles into the U.S., any other conclusion would have the effect of making virtually all imports "captive imports," a result which would clearly be inconsistent with the agency's intent in establishing the captive import category.

I also agree with the statement in your letter that light trucks manufactured in the U.S. by NMM are not captive imports. While we understand that these vehicles are not "domestically manufactured" as that term is defined in the statute, neither are they imported. The term "import" is defined in section 502(l0) of the Act as meaning "to import into the customs territory of the United States." Since these vehicles are not imported, it is impossible for them to be considered captive imports.

Your letter also enclosed a copy of a letter you sent to EPA, requesting that agency's interpretation of portions of EPA's fuel economy calculation regulations at 40 CFR Part 600. You sought clarification from EPA on the apparent inconsistency between EPA's regulations, which provide separate treatment for "domestically produced" and "not domestically produced" light trucks, and NHTSA's classification regulations, which distinguish only between "captive imports" and "others." You requested this agency's comments on the issues raised in the letter to EPA.

I am not in a position to comment on EPA's regulations, or on that agency's interpretation of its regulations. I will confirm, however, that NHTSA intended for different procedures to be applied to the determination of CAFE for light trucks than those for passenger cars. The primary distinction is that under the statute, passenger cars are divided into "domestically manufactured" and "not domestically manufactured" fleets. The statute contains no comparable distinction for light trucks. However, under NHTSA's regulations, light trucks are divided into captive imports and "others," which encompasses all light trucks which are not captive imports. This issue is discussed in some detail in the final rule establishing the captive import definition. See, 43 FR 11995, 11998-9, March 23, 1978.

I hope you have found this information helpful. Please do not hesitate to contact this office if you have any further questions.

Sincerely,

Paul Jackson Rice Chief Counsel

Enclosure ref:CSA#533 d:12/21/90

ID: 77-2.5

TYPE: INTERPRETATION-NHTSA

DATE: 03/29/77

FROM: AUTHOR UNAVAILABLE; F. Berndt; NHTSA

TO: Marchal America - Western Region

TITLE: FMVSS INTERPRETATION

TEXT: This is in reply to your letter of February 9, 1977, to Mr. Vinson of this office asking for clarification of the effect of the preemption section of the National Traffic and Motor Vehicle Safety Act upon the use of quartz iodine headlamps by State fire and police organizations. Your letter was prompted by mine of January 18, 1977, to Jack D. Gross, Jr., National Sales Manager of Marchal America, in which I concluded that the preemption section was inapplicable to the conversion of vehicles by owners after initial manufacture.

Title 15 U.S.C. @ 1392(d) reads in pertinent part:

"Nothing in the section shall be construed to prevent . . . the government of any State or political subdivision thereof from establishing a safety requirement applicable to . . . motor vehicle equipment procured for its own use if such requirement establishes a higher standard of performance than that required to comply with the otherwise applicable federal standard."

In my opinion, the preemption language is irrelevant to your primary concern of assuring local agencies that the Federal government has no objection to their use of headlamps that do not comply with Motor Vehicle Safety Standard No. 108.

As I explained to Mr. Gross, the purpose of the preemption doctrine is to ensure uniform national manufacturing standards reserving to States and political subdivisions thereof the right to establish standards setting a higher level of performance on vehicles procured for their own use.

We have always construed this language narrowly. You have not informed us of the existence of any State law, municipal ordinance, or any other legislative act by a State or political subdivision establishing a level of performance for headlamps on publicly owned vehicles, that a manufacturer must meet, and thus the preemption question, in a legal sense, does not arise.

Instead, you have presented the situation of a few State and local agencies (city police, highway patrol, fire department, sheriff) who wish to substitute quartz iodine headlamps on publicly owned vehicles. Although 15 U.S.C. 1397(a)(2)(A) prohibits the removal of vehicle equipment installed in accordance with a safety standard, that prohibition does not extend to the vehicle owner. Thus, there is no Federal legal objection to any interested State or local agency replacing its conventional headlamps with quartz iodine ones. Indeed, we would be interested in knowing the views of these agencies after a period of use.

We understand from your letter that the headlamps in question are imported as conforming to the motorcycle headlamp requirements of SAE J584, incorporated by reference in Standard No. 108. As long as the headlamps do not exceed the candlepower maxima established by J584, and are not advertised or sold to the general public as suitable for use on passenger cars Marchal America would not appear to be violating the National Traffic and Motor Vehicle Safety Act.

SINCERELY,

MARCHAL AMERICA WESTERN REGION

February 9, 1977

U.S. Department of Transportation National Highway Traffic Safety Administration

ATTN: Taylor Vinson

Re: Your File No. N40-30

This is in reply to your correspondence dated January 18, 1977 and our phone conversation on February 7, 1977 regarding headlamp replacements.

Semi-sealed H-4 Iodine headlamp replacements are currently being used by the Highway Patrol, Sheriff, City Police, Fire and Highway Departments in ten of the eleven states in my region. The primary usage of these lamps is in critical need rural areas. General usage is prohibitive because these units cost four to five times more than standard units. Each department that has installed these units conducted cost vs. benefits testing. In each case the results were consistent. Benefits are:

Low Beam: 1. Less glare to opposing drivers;

2. More uniform light pattern on road and shoulder;

3. Light color makes it easier on eyes;

4. Dramatic reduction of whiteout caused by stray vertical light in fog and snow.

High Beam: 1. Besides the obvious increase in distance, peripheral vision is greatly increased allowing the operators to see pedestrians, side traffic and livestock at a great enough distance to allow them to react safely. High beam is primarily used in Code 2 or Code 3 operation where standard headlamps don't give adequate illumination for safe operation of high speed emergency vehicles.

Additional

Benefits: 1. If a rock or debris cracks the lens, you don't lose your headlight in a critical emergency situation;

2. Bulb life span is comparable to standard units and the intensity doesn't deteriorate with age.

We are not talking about an experimental unit that has never been tested. These headlamps are manufactured under the extremely tough international lighting standards known as the "E" or European Code. Every other country in the world has now adopted this standard including our neighbors in Canada. These headlamps are in daily use by some of the most respected state and local safety organizations in the country.

The reason I asked for the clarification on 15 U.S.C. 1392(d) was because the California Highway Patrol has an extremely hazardous fog condition in their central valley. They were interested in testing these units because of their low beam qualities in fog and snow, but they wanted 1392(d) interpreted in writing to make sure it was o.k.

The pertinent part of Section 1392(d) reads:

"Nothing in the section shall be construed to prevent . . . the government of any state or political subdivision thereof from establishing a safety requirement applicable to motor vehicle or motor vehicle equipment procured for its own use if such requirement establishes a higher standard of performance than that required to comply with the otherwise applicable federal standard."

My interpretation of this section prior to your letter was our headlamp came under the classification of motor vehicle equipment and in each case of its use a higher standard of performance was established in both public and operator safety with the use of this unit.

These units are being imported under federal standard 108 J584 for motorcycle use. The spread from motorcycle to vehicle usage starts when a police department discovers that the headlamps that work so well in their motorcycles plug right into their patrol cars.

The international lighting standard mandates that the bulbs be interchangable regardless of the manufacturer, reflector size or shape of the lamp. This was done so that no matter where you travelled, replacement bulbs would be readily available regardless of the type of vehicle.

I respectfully submit these comments for you to consider.

CHAD DORNSIFE

ID: nht81-2.47

DATE: 07/14/81

FROM: AUTHOR UNAVAILABLE; F. Berndt; NHTSA

TO: Firestone Tire Company

TITLE: FMVSS INTERPRETATION

TEXT: This responds to your recent letter to Mr. Kratzke of my staff, describing a situation in which a railroad car full of new tires caught on fire. As a result of the damage caused to the tires by the fire, Firestone's quality control staff determined that the tires could no longer be certified as safe for highway use. The railroad company has refused to pay your claim for damage to the tires unless Firestone releases the damaged tires to the railroad company. You stated that the railroad company will either sell the tires through its salvage outlets or use the tires on company vehicles. You ask whether you can rightfully withhold these tires from the railroad company.

If Firestone releases the tires and the railroad company sells the tires or uses them on the public roads, both Firestone and the railroad company would violate an express provision of the National Traffic and Motor Vehicle Safety Act of 1966, as amended (15 U.S.C. 1381 et seq.) ("the Safety Act"). Therefore, you can rightfully withhold the tires from the railroad company.

Your letter did not indicate whether the damaged tires were tires for passenger cars or tires for motor vehicles other than passenger cars. In either case, the tire manufacturer is required to certify that each tire fully complies with certain marking requirements and with specified performance requirements (resistance to bead unseating, strength, endurance, and high speed performance) of Safety Standard No. 109 in the case of passenger car tires (49 CFR @ 571.109) or of Safety Standard No. 119 for tires other than passenger car tires (49 CFR @ 571.119). This certification is made by the manufacturer by molding the letters "DOT" into the sidewall of the tire.

As a result of the damage to this particular shipment of tires, your company has determined that this certification is no longer valid. This determination obligates Firestone to remove the "DOT" symbol from the sidewall of the tires.

Without the "DOT" symbol, these tires would clearly not comply with the requirements of either Standard No. 109 or Standard No. 119. Section 108(a)(1)(A) of the Safety Act (15 U.S.C. 1397(a)(1)(A)). provides:

No person shall manufacture for sale, sell, or offer for sale, or introduce or deliver for introduction in interstate commerce, or import into the United States, any . . . item of motor vehicle equipment manufactured on or after the date any applicable Federal motor vehicle safety standard takes effect under this title unless it is in conformity with such standard . . . .

Firestone would violate this prohibition if it were to deliver tires to the railroad company which were not certified as complying with the appropriate safety standard. The railroad company would violate this prohibition if it sold or offered to sell uncertified tires, or if uncertified tires were used by the company on the public roads (introduction in interstate commerce). Section 109 of the Safety Act (15 U.S.C. 1398) specifies penalties of up to $ 1000 for each violation of section 108, and each tire delivered by Firestone or sold or used by the railroad company would constitute a separate violation of section 108. Section 109 specifies that the maximum civil penalty which can be imposed for a series of related violations, which this would be, is $ 800,000 for each violator.

You indicated that Firestone would not release the damaged tires for use in any case, because of the potential safety hazard. I hope that this response reinforces that position. Should you need any further information on this matter, please do not hesitate to contact me. Please show this letter to the interested railroad company so that it will realize the serious nature of its contemplated actions.

SINCERELY,

Firestone TIRE COMPANY

June 24, 1981

The National Highway Safety Administration Office of Chief Counsel

Attention: Steven Kratzke

Dear Mr. Kratzke:

Pursuant to our phone conversation this morning, we would appreciate hearing from you and the National Highway Safety Administration as to the disposition to be made on tires which have been exposed to fire while in transit. We experience approximately five of these situations per year and recently we've experienced an incident where the carrier is demanding that we release to them the salvage.

In this particular incident, the carload of 1,596 tires was shipped from our Decatur, Illinois Plant back in June of 1979. Enroute the carrier noticed a missing hasp and ordered the car confined to its repair track until a new hasp could be affixed to the car. In the process of welding the hasp on to the car a small fire started which the carrier's employees quickly extinguished. After a break for lunch and the subsequent return from lunch the car was again found ablaze. The car was again extinguished by both the railroad's employees and the local fire department.

Our Quality Control people inspected the tires and found them to be in a condition not suitable for highway use. The railroad retained outside experts in this area and our company likewise retained experts to evaluate the condition of these tires to confirm basically what our Quality Control people originally decided. Both these outside firms cannot guarantee the safety of these tires. The railroad has refused to pay our claim unless we release these tires to them to be salvaged through their salvage outlets to the public or for use on their own company vehicles. We find this railroad's request in total disregard of public safety.

We would appreciate your confirming in writing basically how the National Highway Safety Administration feels about this and whether or not a manufacturer of tires, such as Firestone is correct in wanting to scrap these tires in such a manner that they are never used on the highway. We are confirming at this time that we have no intentions of releasing these tires to this particular railroad but would appreciate your decision as to whether or not we can rightfully withhold these tires from the railroad for their salvaging, which in the end will hopefully produce a settlement from the railroad for the value of these tires which they destroyed.

Thank you.

C. L. BIDDLE SUPERVISOR OF CLAIMS GENERAL TRANSPORTATION DEPARTMENT

ID: nht72-1.44

DATE: 10/16/72

FROM: AUTHOR UNAVAILABLE; Douglas W. Toms; NHTSA

TO: Mr. Heinrich von Wimmersperg, Development Engineer

TITLE: FMVSS INTERPRETATION

TEXT: Thank you for your letter of October 2, 1972, concerning the Ford "Tot-Guard" and your child restraint patents.

The consumer complaints that we have received on the Ford Tot-Guard have been complaints focussing on the fit of the device for minimum recommended size children. The comments relate both to the case with which small children may climb out of the device and slide under it, as well as to the vision restriction problem for the small child.

The Tot-Guard has proven to perform well in 30 mph frontal impacts with the three-year-old child dummy in our research programs, but can be improved in lateral protection capability and in performance with the 50-pound child dummy.

We have just completed a research program to develop new concepts in child restraints and will very shortly be making these designs available for any manufacturer who chooses to produce one of these advanced design restraints.

A copy of your letter will be placed in the public docket along with plans for the restraints developed on our child restraint development contract.

We are interested in reviewing and placing in the public docket copies of your designs for the infant car bed, which you mention, in hopes of stimulating the production of a crashworthy design for such a device.

We appreciate your letter and are looking forward to hearing from you in the near future.

SINCERELY,

HEINRICH VON WIMMERSPERG DEVELOPMENT ENGINEER

OCTOBER 2, 1972

Douglas W. Toms Director National Highway Traffic Safety Administration

An article by John Thorner in the WASHINGTON POST on 20 July 1972, relative to the Consumers Union's report on children's car safety restraint systems, quoted you as stating that your agency, the National Highway Traffic Safety Administration, had found that children did not like the FORD "TOT-GUARD" and that therefore it would be difficult to get parents to use this restraint system.

As the owner of the basic patent used in the "TOT-GUARD", (Patent #3,232,665), I am naturally interested in your comments.

It is my impression that you are referring to the fact that the "TOT-GUARD" does have an extended front piece, covered by FORD's patent #3,424,497, which does interfere somewhat with the child's ability to see forward and may thus cause some children to object to being placed in the seat.

However from all dynamic tests about which I have heard, the FORD "TOT-GUARD" does provide maximum safety for children weighing up to 50 pounds in simulated crash conditions.

An editorial in the WASHINGTON POST of 6 July 1972, copy of which I am enclosing, did pose the question: "If some manufacturers can meet safety testing, why can't all of them?"

It is with this thought in mind that I would like to call your attention to the fact that FORD has a NON-EXCLUSIVE license on my patent and that I would be willing to license other manufacturers to avail themselves of its features on terms generally equivalent to the FORD agreement, involving a very nominal royalty.

I do feel that the small royalty should not deter them from using my patent to make their devices safer.

I have already noted that some attempts have been made to copy my system, but the endeavor to avoid infringement of my patent has not resulted in making their devices as safe as they would be if they had used my patent.

I realize that the NHTSA is not in a position to act as a "sales agent" for my patent but, in the mutual interest of promoting safety for children riding in cars, I do think it would be perfectly proper for you to at least call attention of manufacturers of child car restraint systems to the fact that my basic patent is available on a non-exclusive basis to any manufacturer for a very nominal royalty.

For your ready reference, I am enclosing a copy of U.S. Patent #3,232,665 issued on 1 February 1966.

I am presently in the process of developing a new version of a children's seat based on my Patent #3,232,665, for children up to 50 pounds weight, having no restricted frontal vision, conveniently adaptable to different sizes of children and collapsible for easy storage and transportation.

Recently a patent was allowed to me which probably will be issued in January 1973. This is for a Safety Seat for Infants (old enough to be seated).

Further, I have just filed a Patent Application for a CAR BED for infants too young to be seated. It is based on a completely new principle, which provides maximum possible protection, equally safe for short trips or for longer traveling.

These three developments thus cover the complete range from the newborn baby to the 50 pound child.

Having had over 30 years background in the development of automotic firearms, covered by over 60 patents, I have, since 1955, been interested in the difficult problem of decelerating fast moving vehicle occupants in crashes without injury, a problem very similar to the problems to be solved in the design of ornaments. This work has resulted in my obtaining patents for an Automotive Safety Belt and for a shock absorbing Sun Vison, automatically covering the impact area of the windshield.

I would be happy to give you additional information regarding any of the above-mentioned matters if you are interested.

I know that you primary interest is in promoting, SAFETY for all people riding in cars and airplanes. It is my sincere belief that I have contributed something to this cause, and I got particular satisfaction from seeing a display of photos on the fifth Floor of the NASSIF Building in Washington showing a little girl sitting in a "TOT-GUARD" and also the car in which she was riding when it was rolled over in a side-impact collision, without injuring the girl. I presume you have seen this display. If not, I am enclosing a copy of the display.

I look forward to hearing from you.

Heinrich von Wimmersperg

[Enclosures Omitted]

1) Copy of U.S. Patent #3,232,665

ID: nht90-4.90

TYPE: Interpretation-NHTSA

DATE: December 21, 1990

FROM: Paul Jackson Rice -- Chief Counsel, NHTSA

TO: Satoshi Nishibori -- Vice President, Industry-Government Affairs, Nissan Research and Development

TITLE: None

ATTACHMT: Attached to letter dated 4-24-90 from Satoshi Nishibori to Stephen P. Wood (OCC 4709)

TEXT:

This responds to your letter seeking to confirm your understanding of the scope and application of the "captive import definition set forth at 49 CFR 533.4(b)(2), and used in specifying light truck CAFE standards.

NHTSA's regulations define a "captive import" as a light truck which is "not domestically manufactured but which is imported in the 1980 model year or thereafter by a manufacturer whose principal place of business is in the United States. The agency ado pted this definition beginning with the 1980 model year in order to prevent the standards from encouraging the increased importation of these vehicles and exportation of domestic jobs. See 43 FR 11996, March 23, 1978.

Your letter explains that you do not believe that the light trucks manufactured in the U.S. by Nissan's U.S. manufacturing subsidiary (NMM, which is jointly-owned by the parent Nissan Motor Co. Ltd. (NML) in Japan and its wholly-owned U.S. importation an d distribution subsidiary (NMC)), should be classified as captive imports. Your letter also states that light trucks imported by NMC should not be classified as captive imports. As explained below, I have concluded that neither the light trucks imported by your U.S. subsidiary, nor trucks manufactured by your U.S. manufacturing operation should be considered "captive imports."

Section 501(8) of the Motor Vehicle Information and Cost Savings Act (the Act) defines the term "manufacturer" as meaning "any person engaged in the business of manufacturing automobiles. . . ." The term "manufacture" is then defined in section 501(9) a s meaning to "produce or assemble in the customs territory of the United States, or to import."

Under these definitions, which are also used in Part 533, NMC is a manufacturer of light trucks imported for the parent company. Since NMC's principal place of business is in the U.S., one might initially conclude that all of Nissan's imported light tru cks should be classified as captive imports. However, that is not a necessary conclusion since there may be more than one manufacturer of these vehicles.

NHTSA has concluded in the past that a second person may be regarded as a manufacturer of a vehicle manufactured by another person if that second person has a sufficient role in the manufacturing process that it can be deemed the "sponsor" of the vehicle . See, for example, the enclosed February 19, 1987 interpretation to a confidential addressee.

For Nissan's imported light trucks, the act of importation is the key manufacturing activity under the statute. While NMC does the actual importing, NML is responsible for the creation and production of the vehicles imported to the U.S. It designs mode ls specifically for the U.S. market, and created NMC for the purpose of importing and marketing these vehicles. NML can be seen as "sponsoring" the importation of Nissan light trucks. Moreover, applying basic principles of the law of agency, NML, as sp onsor, may be considered the principal. It is therefore our opinion that NML and NMC are both importers of the Nissan vehicles being brought into the U.S., and hence both are manufacturers under the statute. This situation is obviously distinguished fr om circumstances where the importer is not connected with the foreign manufacturer, e.g., so called grey market importers.

NHTSA believes it is appropriate, in determining whether the vehicles are "captive imports" to look at the totality of the circumstances surrounding the production, importation and marketing of the vehicles. In this case, NML controls all aspects of the Nissan light trucks imported into the U.S. Further, NML exercises complete control over NMC, and created NMC for the purpose of importing and marketing NML's products in the U.S. Indeed, NMC exists primarily to serve NML as a conduit into the U.S. mark et.

I note that this relationship is clearly distinguished from the circumstances of the typical captive import. In lieu of producing certain vehicles in this country, a domestic manufacturer imports and markets in this country vehicles (captive imports) su pplied by a foreign manufacturer with which it has a special relationship. In such a case, the domestic manufacturer is not under control of the foreign company. Moreover, the domestic manufacturer does not serve primarily as a conduit to the U.S. mark et for the imported vehicles.

Since NML has its principal place of business in Japan, and exercises complete control over NMC, I conclude that vehicles manufactured by NML and imported into the U.S. by NMC are not captive imports. Moreover, since almost all foreign manufacturers uti lize U.S. subsidiaries to import vehicles into the U.S., any other conclusion would have the effect of making virtually all imports "captive imports," a result which would clearly be inconsistent with the agency's intent in establishing the captive impor t category.

I also agree with the statement in your letter that light trucks manufactured in the U.S. by NMM are not captive imports. While we understand that these vehicles are not "domestically manufactured" as that term is defined in the statute, neither are the y imported. The term "import" is defined in section 502(10) of the Act as meaning "to import into the customs territory of the United States." Since these vehicles are not imported, it is impossible for them to be considered captive imports.

Your letter also enclosed a copy of a letter you sent to EPA, requesting that agency's interpretation of portions of EPA'S fuel economy calculation regulations at 40 CFR Part 600. You sought clarification from EPA on the apparent inconsistency between E PA's regulations, which provide separate treatment for "domestically

produced" and "not domestically produced" light trucks, and NHTSA'S classification regulations, which distinguish only between "captive imports" and "others." You requested this agency's comments on the issues raised in the letter to EPA.

I am not in a position to comment on EPA's regulations, or on that agency's interpretation of its regulations. I will confirm, however, that NHTSA intended for different procedures to be applied to the determination of CAFE for light trucks than those f or passenger cars. The primary distinction is that under the statute, passenger cars are divided into "domestically manufactured" and "not domestically manufactured" fleets. The statute contains no comparable distinction for light trucks. However, unde r NHTSA's regulations, light trucks are divided into captive imports and "others" which encompasses all light trucks which are not captive imports. This issue is discussed in some detail in the final rule establishing the captive import definition. See , 43 FR 11995, 11998-9, March 23, 1978.

I hope you have found this information helpful. Please do not hesitate to contact this office if you have any further questions.