ID: 16-2706 (GM load limiters on buses Aug 8)_v2 incorporating circulation comments

ID: 16008-1.pja

Mr. Jay Reese
Engineering Manager
Fontaine Specialized
P.O. Box 289
5398 U. S. Highway 11
Springville, AL 35146

Dear Mr. Reese:

This responds to your letter requesting an interpretation of whether four different trailers your company manufactures would be excluded from the National Highway Traffic Safety Administration's (NHTSA) recent rear impact protection (underride guard) regulations. In some cases they are excluded, and in others they are not and a guard would be required. Each trailer design is addressed separately below, with reference to the drawings you enclosed.

Federal Motor Vehicle Safety Standard No. 224, Rear impact protection, requires most trailers and semitrailers weighing over 10,000 pounds to be fitted at the rear with a rear impact (underride) guard meeting the requirements of Standard No. 223, Rear impact guards (49 CFR 571.223 and 571.224, published on January 24, 1996, at 61 FR 2004). However, certain kinds of vehicles are excluded. The only excluded categories that are relevant for the purposes of this letter are wheels back vehicles, low chassis vehicles and special purpose vehicles.

Design 1: Drawing #BTS-5104 Flatbed

You believe that this vehicle meets the description of an excluded wheels-back vehicle. Wheels-back vehicles are excluded by S3 of Standard No. 224, Rear impact protection. The term is defined in S4 as a "trailer or semitrailer whose rearmost axle is permanently fixed and is located such that the rearmost surface of [the tire] on that axle is not more than 305 mm forward of the transverse vertical plane tangent to the rear extremity of the vehicle."

The drawing you enclosed of the trailer your company manufactures shows that the rear surface of the tires on that axle is within 305 mm of the rear extremity. Assuming the axle is "permanently fixed," this is a wheels back vehicle, and no guard is required.

Design 2: Drawing BTS-4748 Hydraulically operated dovetail with flipunder approach plate

You believe this flatbed trailer meets the definition of a special purpose vehicle. The vehicle has an 8 foot long tail section that tilts down at a 15 degree angle to permit loading of wheeled vehicles. At the rear of the section is depicted a triangular full width approach plate that, during loading, extends farther rearward and downward, bridging the gap between the tail section and the ground. Its purpose is to allow construction equipment to transition from the ground up onto the bed without encountering the "bump" of the edge of the tailpiece. During transit, this approach plate folds under the tail section and fits into an indentation in the bottom of the chassis. The forwardmost edge of the plate locks into position on the bottom of the chassis. In this position, the lower surface of the approach plate is 22 inches above the ground, and the rear face of the vehicle presents a vertical surface from 22 to 37 inches above the ground.

A special purpose vehicle is defined in S4 of FMVSS No. 224 as "a trailer or semitrailer having work-performing equipment that, while the vehicle is in transit, resides in or moves through the area that could be occupied by the horizontal member of the rear underride guard, as defined by S5.1.1 through S5.1.3."⁽¹⁾ Again, the approach plate is the only part of your trailer that, while the vehicle is in transit, resides in the area that could be occupied be the rear underride guard. Therefore, the approach plate would have to be considered work-performing equipment for the trailer to be excluded.

There is no definition in the standard for "work-performing equipment." In determining the meaning of regulatory language, the first place the agency looks is the plain meaning of the words. In the context which is relevant to this safety standard, "work" is defined as "the transfer of energy from one physical system to another; especially, the transfer of energy to a body by the application of force . . ." "Perform" is defined as "to begin and carry through to completion; do." American Heritage Dictionary of the English Language, 1971. Taken together, NHTSA interprets the words "work-performing" to mean that the equipment must actively perform its function, and that the function must involve exerting force or moving something else. Approach plates do not perform work in this sense because they merely form a ramp between the ground and the vehicle driving onto the tilt bed.⁽²⁾ Therefore, the approach plate is not work-performing equipment and the vehicle does not meet the definition of a special purpose vehicle.

We now turn to the question of whether your trailer is excluded as a low chassis vehicle. Low chassis vehicles are defined in S4 of Standard No. 224 as "a trailer or semitrailer having a chassis that extends behind the rearmost point of the rearmost tires and a lower rear surface that meets the configuration requirements of S5.1.1 through 5.1.3 of this section." In other words, the chassis itself must satisfy the configuration requirements applicable to a guard when the vehicle is outfitted for transit. The only part of your vehicle that may meet these configuration requirements is the rear edge of the folded approach plate itself, so the question becomes whether the approach plate is considered to be part of the "chassis" of the vehicle. Chassis is defined in S4 as "the load supporting frame structure of a motor vehicle." There are two elements to this definition that must be satisfied: "load supporting" and "frame structure."

To be considered "load supporting," the frame structure has to support load when the trailer is performing its function. Generally, this means that the structure would have to contribute to supporting the cargo load when the trailer is in transit.

To be considered part of the frame structure, a structural member must be either an integral part of the overall frame structure, or be connected with other frame structural members in a way that is necessary to the structural integrity of the trailer. One factor the agency considers in deciding whether a structural member is part of the frame is its size and strength. Frame structural components often are the major structures defining the shape of the trailer. Although frame structure is not limited to the largest frame components (i.e., the frame rails for most trailers), generally frame components are substantial and have strength similar to other frame components. Moveable components may "lock" into the frame structure sufficiently that they are integral with other frame members-in this situation NHTSA may consider the combined components to be one frame unit. However, the agency also looks at the purpose and function of the structural member in supporting the trailer and its load.

Applying these principles to your approach plate, we conclude that it is part of the chassis. The folded approach plate conforms with the outline of the underside of the trailer bed, maintaining a constant bed thickness and helping to define the outline of the bed. Your approach plate is hinged along the entire rear of the trailer and, when folded, locks at its forward edge into a place fitted for it on the underside of the chassis. NHTSA considers the approach plate on your trailer to be "locked" into the frame of the vehicle sufficiently that it is considered integral with it, as one unit, and therefore a part of the frame structure. By contributing to the structural integrity of these frame members, NHTSA considers the approach plate to be supporting load. Therefore, the approach plate is part of the chassis, and the trailer is a low chassis vehicle, excluded from the underride guard requirements.

Design 3: Drawing #BTS 5110 Fixed dovetail with flipover approach plate

This trailer is similar to design 2, except that the downward-tilted dovetail section is not hydraulically operated, but attaches rigidly to the flatbed. The approach plates on this design are not full-width, and they swing up instead of down and lie on top of the dovetail when the vehicle is in motion. The rear face of the dovetail itself appears to meet the configuration requirements of S5.1.1 through 5.1.3.

NHTSA considers the dovetail section to be an integral extension of the main chassis frame members, and therefore the vehicle is excluded as a low chassis vehicle, according to the analysis in Design 2.

Design 4: Drawing BTS-2844 Pusher bumper

This vehicle, which you state is for off-road use, is a flatbed trailer with a lower chassis surface that is 31 inches above the ground. There is a "pusher bumper" cantilevered rearward from the rear underside of the trailer. It extends slightly behind the rear of the chassis and its lower surface is 17 inches from the ground. The pusher bumper is used to push the vehicle out of the soft ground in the oilfields. Your drawing notes that "pusher bumper guard assy supplied by customer." You stated that this trailer falls under the special purpose vehicle exclusion, meaning that you regard the pusher bumper as work-performing equipment.

Your questions raises two main issues: (1) whether the bumper is "work-performing" equipment, and (2) whether the "off-road" nature of your trailer excludes it from our definition of a "motor vehicle." Both of these issues are addressed below.

The pusher bumper is not work-performing equipment. As explained in the above discussion of Design 2, "work-performing"equipment must actively perform its function, and that the function must involve exerting force or moving something else. Pusher bumpers do not themselves actively exert force, but are instead passively pushed against by other equipment. Therefore, the pusher bumper is not work-performing equipment and the vehicle does not meet the definition of a special purpose vehicle. In fact, it appears that you currently consider the pusher bumper to be an underride guard. Your diagram refers to it as a "guard assy" and it appears to meet the configuration requirements for an underride guard.

Many underride guards may perform passive pushing or holding functions on occasion. For example, many trailers use their guards to secure the trailer at a loading dock using a dock locking device that holds the underride guard. When performing this function, these guards are subjected to forces in the forward-aft direction, although the forces may be less than a pusher bumper experiences. To say that all these guards are work-performing equipment would mean that many, if not most, standard van-type trailers would be excluded; clearly not what the agency intended by its special purpose vehicle exclusion.

Your diagram stated that the pusher bumper is "supplied by" the customer. Regardless of who supplies it, you, as the manufacturer of the vehicle, are responsible for installing a device that will enable you to certify that your trailer complies with Standards No. 223 and 224.⁽³⁾

You state that "the trailer is for off-road use in the oil field business." This raises the possibility that it is not a motor vehicle subject to our laws. NHTSA's statute defines the term "motor vehicle" as:

[A] vehicle driven or drawn by mechanical power manufactured primarily for use on the public streets, roads, and highways, but does not include a vehicle operated only on a rail line. 49 USC  30102(a)(6).

Whether NHTSA considers a piece of oilfield equipment to be a motor vehicle depends on its use. In the past, we have concluded that this statutory definition does not encompass mobile construction equipment, such as cranes and scrapers, which use the highway only to move between job sites and which typically spend extended periods of time at a single job site. In such cases, the on-road use of the equipment is merely incidental and is not the primary purpose for which they were manufactured. Other construction vehicles, such as dump trucks, frequently use the highway going to and from job sites, and stay at a job site for only a limited time. Such vehicles are considered motor vehicles, since the on-highway use is more than "incidental."

If the trailers are specially designed for use in the oilfields and their use of the roads is infrequent and incidental to their primary mission in the oilfield, then they are not "motor vehicles" within the meaning of the statutory definition and our regulations would not apply to them. However, we are unable to make that determination based on the very few statements in your letter.

If your Design 4 trailer is not excluded, the agency would consider a petition for temporary exemption from Standard No. 224. Under one of our regulations (49 CFR Part 555), vehicle manufacturers may apply for a temporary exemption from the Federal motor vehicle safety standards. Under Sec. 555.6(a), a manufacturer whose yearly production is not more than 10,000 units may ask for an exemption of up to three years on the basis that compliance would cause it substantial economic hardship and that it has attempted in good faith to comply with the standard from which it has asked to be excused. We have enclosed a copy of Part 555 for your information. We have also enclosed a copy of our regulations relating to the protection of confidential business information. Most of the trailer manufacturers submitting petitions for temporary exemption have requested that their financial information remain confidential.

Please note Part 555 requires the agency to publish a notice in the Federal Register seeking public comment on each exemption petition before a decision can be made on such a request, and then publish a second notice either granting or denying the petition. This process normally takes three to four months from the date of submittal.

If you have any further questions, please feel free to contact Paul Atelsek of my staff at this address or by telephone at (202) 366-2992.

Sincerely,
John Womack
Acting Chief Counsel
Enclosures: Parts 555, 512
ref:224
d.5/22/98

1. Note that this definition, as quoted, reflects an amendment made in response to petitions for reconsideration of the final rule. An unnecessary reference to pipe equipment containing hazardous materials was eliminated. See 63 F.R. 3654 (January 26, 1998).

2. To the extent that this interpretation is inconsistent with interpretation letters to Mr. Thomas M. Joyce and Mr. R. H. Anderson of Landoll Corporation, interpreting the frame rails of tilt bed trailers as work-performing equipment, those prior interpretations are superceded. The basic answer in those letters did not depend on this point, and the analysis in this letter is more thorough.

3. NHTSA's regulations do not control modifications that vehicle owners make to their own vehicles. However, the Federal Highway Administration's regulations may require compliant guards to be maintained after the vehicle is sold.

ID: 16035.jeg

Mr. Toshiyuki Aoki
Engineering Department
Sensor Technology Co., Ltd.
FAX: +81-299-59-6121

Dear Mr. Aoki:

This responds to your fax asking about the neck injury criteria specified in the alternative unbelted sled test requirements of Safety Standard No. 208, Occupant Crash Protection. I apologize for the delay in this response.

You note that S13.2 of the standard specifies that the neck injury criteria are "measured with the six axis load cell (ref: Denton drawing C-1709) that is mounted between the bottom of the skull and the top of the neck as shown in drawing 78051-218." You state that you do not understand the neck transducer position for the Hybrid III dummy from this quoted language and ask whether it means "upper neck transducer," not "lower neck transducer."

The language quoted above does mean "upper neck transducer." The terms load cell and transducer are synonymous. The upper neck transducer is located, as specified in S13.2, between the bottom of the skull and the top of the neck, and is shown in that position on drawing 78051-218. By contrast, the lower neck transducer for the Hybrid III dummy is located between the top of the thorax and the bottom of the neck. (Our regulations do not specify use of the lower neck transducer for testing under Standard No. 208.)

I hope this information is helpful. If you have any further legal questions, you may refer them to Edward Glancy of this office at (202) 366-2992. If you have any technical questions about how we use the Hybrid III dummy in our tests, you may contact Stan Backaitis of our Office of Safety Performance Standards at (202) 366-4912.

Sincerely,
John Womack
Acting Chief Counsel
ref:208#572
d.4/1/98

ID: 16037.ogm

Norman Jolly, Esq.
1018 Preston
Suite 450

Houston, TX 77002

Dear Mr. Jolly:

This is in response to your "petition" of September 17, 1997, requesting that the National Highway Traffic Safety Administration (NHTSA) award money damages to Texans owning a Toyota, Nissan, or Honda passenger car or light truck equipped with a passive seat belt system and a separate lap belt. You believe that the manufacturers failed to properly warn motorists to use the manual lap belt with the shoulder belt.

This agency cannot provide the relief sought by your petition. NHTSA's authority to entertain petitions and provide specified forms of relief when such petitions are granted is found in section 30162 of Title 49 of the United States Code (49 U.S.C. 30162). This section provides, in pertinent part, the authority granted by Congress in these matters:

(a) Filing. Any interested person may file a petition with the Secretary of Transportation requesting the Secretary to begin a proceeding--

(1) to prescribe a motor vehicle safety standard under this chapter; or

(2) to decide whether to issue an order under section 30118(b) of this title.

Section 30118(b)(1) authorizes NHTSA to make a final decision that a vehicle contains a safety related defect or fails to comply with an applicable Federal motor vehicle safety standard. If such a final decision is made and it has been determined that a vehicle does not comply with a standard or contains a safety related defect, section 30118(b)(2) requires NHTSA to order the manufacturer of the vehicle to notify owners, purchaser, and dealers of the defect or noncompliance and to provide a remedy under section 30120. Section 30120(a) prescribes the forms that such a remedy may take:

(a) Ways to remedy.

(1) Subject to subsections (f) and (g) of this section, when notification of a defect or noncompliance is required under section 30118(b) or (c) of this title, the manufacturer of the defective or noncomplying motor vehicle or replacement equipment shall remedy the defect or noncompliance without charge when the vehicle or equipment is presented for remedy. Subject to subsections (b) and (c) of this section, the manufacturer shall remedy the defect or noncompliance in any of the following ways the manufacturer chooses:

(A) if a vehicle--

(i) by repairing the vehicle;

(ii) by replacing the vehicle with an identical or reasonably equivalent vehicle; or

(iii) by refunding the purchase price, less a reasonable allowance for depreciation.

(Emphasis added.)

NHTSA may require a manufacturer to provide notification and a remedy in the event that a vehicle contains a defect or does not comply with applicable standards. However, even if NHTSA were to determine that a defect existed, the manufacturer would still be able to select the remedy and cannot be ordered to provide a cash payment to an owner. If a manufacturer attempts to repair the vehicle and does not do so within a reasonable time, section 30120(c) requires that the manufacturer replace the vehicle or refund the purchase price, less an allowance for depreciation. Even in this circumstance, where the manufacturer has elected to repair the vehicle and has not done so, the manufacturer can still replace the vehicle rather than providing a cash payment to the owner.

As noted above, your petition seeks relief that the agency does not have the authority to grant. NHTSA is therefore rejecting your petition.

Sincerely,
John Womack
Acting Chief Counsel
ref:VSA
d.12/11/97

ID: 16039.nhf

Mr. Roger Gangitano
Nationwide Wheelchair Lift
1536 Cypress Avenue
Melbourne, FL 32935

Dear Mr. Gangitano:

This responds to your letter requesting "blanket approval" to remove the air bag sensor and disable the air bag system in all vehicles modified to be driven by a person with a disability in which the location of the vehicle's air bag sensor interferes with the installation of a power seat base. I regret the delay in responding. As explained below, our answer is we will not grant "blanket approval" to remove the sensor and disable the air bag system each time the installation of a power seat base requires removing the air bag sensor.

You explained that modifying a van to accommodate a person with a disability often necessitates the installation of a six or eight way power driver seat base. You stated that most vehicles could be fitted with a power seat base that did not interfere with the air bag sensor located beneath the driver's seat. However, you stated that the installation of a power seat base in certain vehicles, in particular the 1997 Chevy Astro or 1997 GMC Safari, required removal of the air bag sensor. Consequently, you explained that you would require the agency's authorization to remove the air bag sensor and disable the air bag system each time you needed to install a power seat base. You requested "blanket approval" for such situations so that you would not have to request authorization each time you must remove the air bag sensor to install a power seat base for a customer with a disability.

We would like to begin by explaining that the National Highway Traffic Safety Administration (NHTSA) is authorized to issue Federal motor vehicle safety standards that set performance requirements for new motor vehicles and items of motor vehicle equipment. Manufacturers are required to certify that their products conform to our safety standards before they can be offered for sale. Manufacturers, distributors, dealers, and repair businesses are prohibited from "knowingly making inoperative" any device or element of design installed on or in a motor vehicle in compliance with an applicable standard. In general, the "make inoperative" prohibition (49 U.S.C. 30122) would require businesses which modify motor vehicles to ensure that they do not remove, disconnect, or degrade the performance of safety equipment installed in compliance with an applicable standard. Violations of this prohibition are punishable by civil fines up to $1,100 per violation.

There is no procedure by which modifiers or repair businesses petition for and are granted permission from NHTSA to modify a motor vehicle. Modifiers are permitted to modify vehicles without obtaining permission from NHTSA to do so, but are subject to the make inoperative provision of 49 U.S.C. 30122. In certain limited situations, we have exercised our discretion in enforcing our requirements to provide some allowances to a repair business which cannot conform to our requirements when making modifications to accommodate the special needs of persons with disabilities. We have always done this on an individual, case by case basis.

In situations such as the one you describe where a vehicle must be modified to accommodate the needs of a particular disability, we have been willing to consider any violation of the "make inoperative" provision a purely technical one justified by public need. The agency has issued letters stating that it would not institute enforcement proceedings against a repair business that modified a vehicle to accommodate a particular person's disability. Although we understand your desire to avoid writing to the agency each time you need to install a power seat base in a vehicle where the location of the air bag sensor is incompatible with the power seat base, we will not grant blanket approval at this time for such a modification.

We do note, however, that the agency is working on a proposal to regulate the aftermarket modification of vehicles for persons with disabilities by setting out exemptions from the make inoperative prohibition only for certain standards, including Standard 208, and under certain conditions. In place of the agency's current approach where each request for exemption from the make inoperative prohibition is reviewed case-by-case, this proposal would give clear guidance to modifiers about principles to follow when considering vehicle modifications to accommodate someone's disabilities. We intend to publish a notice of proposed rulemaking shortly.

I hope this information has been helpful. If you have any other questions or need some additional information in this area, please contact Nicole Fradette of my staff at this address or by phone at (202) 366-2992.

Sincerely,
John Womack
Acting Chief Counsel
ref:VSA#208
d.2/18/98

ID: 16054.ztv

Mr. Bill Cox
Monte Carlo Minis
Box 369
Earl, NC 28038

Dear Mr. Cox:

This is in reply to your faxes of September 22, 1997, and October 1, 1997, to Taylor Vinson of this Office.

With your fax of September 22, you attached an article distributed by the Knight-Ridder newspapers on the arrival of the first Chinese truck or sport utility vehicle at a Michigan dealership. This article contains the statement that "since it's considered a low-volume vehicle, it needn't comply with U.S. safety standards. It doesn't have air bags and it doesn't meet U.S. crash standards." You have asked how they are allowed to do this.

The article is incorrect. All low-volume motor vehicles must comply with all applicable Federal motor vehicle safety standards in order to be imported and sold in the United States, unless it has filed for and received an exemption from the standards. As Mr. Vinson informed you in his call to you on October 1, no exemption has been granted this Chinese vehicle.

In your fax of October 1, you state that new Volkswagen Beetles are being imported under an exemption from NHTSA "allowing small volume importers to import 10 cars or less not to comply." You ask why you weren't told about this exemption. As with the Chinese Jeep, the Volkswagen Beetle does not have a small volume importer exemption. However, this vehicle could be imported as one that has been refurbished from an original vehicle that is more than 25 years old. If this is the case, then the vehicle is not required to comply upon admission to the United States.

We are providing copies of your correspondence to our compliance office. Thank you for informing us of these matters.

Sincerely,
John Womack
Acting Chief Counsel
ref:591
d.10/9/97

ID: 16055.ogm

Mr. Freeman Chen
Associate Counsel
US JVC Corp.
41 Slater Drive
Elmwood Park, NJ 07407

Dear Mr. Chen:

This responds to your letter regarding your company's intention to produce a small flat screen LCD television receiver which would be suitable for use in passenger cars. Specifically, you ask if there are any guidelines or regulations regarding the size of the television, special feature requirements, or any restrictions on where these televisions may be installed in a vehicle.

The National Highway Traffic Safety Administration (NHTSA) does not have any safety standards specifically covering television receivers. However, it is possible that the installation of a television receiver could affect the compliance of a vehicle with some safety standards.

All new vehicles manufactured for sale in the United States must be certified by their manufacturer as complying with the Federal motor vehicle safety standards. If your television receivers are installed in a new vehicle prior to its first sale to a consumer, the manufacturer or dealer would be required to certify that the vehicle as altered continues to comply with all applicable Federal motor vehicle safety standards.

After a vehicle is sold at retail, Federal law limits the modifications made to it by manufacturers, distributors, dealers, and repair businesses. These entities are prohibited under 49 U.S.C. section 30122 from "knowingly making inoperative" any device or element of design installed on or in a motor vehicle in compliance with an applicable safety standard. In general, the "make inoperative" prohibition would require a business which modifies motor vehicles to ensure that they do not remove, disconnect, or degrade the performance of safety equipment installed in compliance with an applicable safety standard. Violations of this prohibition are punishable by civil fines up to $1,100 per violation.

Depending on where and how the device is mounted, the installation of a television receiver could affect the compliance of a vehicle with some safety standards. For example, standard No. 201, Occupant protection in interior impact, establishes requirements for the performance of certain interior areas of a vehicle in protecting occupants from injury if they contact these areas in a crash. The requirements of standard 201 apply to dashboards, seat backs, visors, and other interior sections where a flat panel TV screen might be mounted. Beginning September 1, 1998, new head impact protection requirements will apply to pillars, side rails, roof headers and the roof itself.

Standard No. l0l, Controls and Displays, contains requirements relating to the location, illumination, and labeling of controls and displays. One section of this standard, section S5.3.5, imposes certain requirements on illuminated devices in the vicinity of the driver. This section provides:

Any source of illumination within the passenger compartment which is forward of a transverse vertical plane 4.35 inch (ll0.6 mm) rearward of the manikin 'H' point with the driver's seat in its rearmost driving position, which is not used for the controls and displays regulated by this standard, which is not a telltale, and which is capable of being illuminated while the vehicle is in motion, shall have either (l) light intensity which is manually or automatically adjustable to provide at least two levels of brightness, (2) a single intensity that is barely discernible to a driver who has adapted to dark ambient roadway conditions, or (3) a means of being turned off.

The purpose of this requirement is to prevent glare visible to the driver. If a television receiver installed in view of the driver is capable of operation while the vehicle is in motion, it would be subject to this requirement.

While NHTSA does not have any safety standards specifically covering television receivers, the installation of a television receiver in view of the driver which is capable of operation while the vehicle is in motion would raise obvious safety concerns related to possible driver distraction.

Finally, I note that state laws may cover the installation of television receivers in motor vehicles. You should contact the Department of Motor Vehicles in any state in which the equipment will be sold or used for information on state laws.

I hope that this is information is helpful. If you have any questions, please contact Otto Matheke of my staff at (202) 366-5253.

Sincerely,
John Womack
Acting Chief Counsel
d.1/8/98
ref:201

ID: 16073.drn

Mr. Jerry McNeil
Vice President of Engineering
Pines Trailer Limited Partnership
2555 South Blue Island Avenue
Chicago, IL 60608

Dear Mr. McNeil:

This responds to your request for an interpretation whether Great Dane Limited Partnership ("G.D. Ltd.") and its two divisions, Pines Trailer Limited Partnership ("Pines Trailer") and Great Dane Trailers, Inc. ("Great Dane Trailers") must be assigned a new WMI (world manufacturer identifier) number. Under the new facts you have provided, the two separate divisions may keep their WMIs.

In your letter, you referred to a National Highway Traffic Safety Administration (NHTSA) letter of June 4, 1997, to your attorney, Norman Shubert, Esq. that addressed your company's situation at that time. The facts behind the June 4 letter are G.D. Ltd., a holding company (with no WMI), purchased two existing vehicle manufacturers with WMIs, Pines Trailers and Great Dane Trailers, and became their parent. The issue was whether G.D. Ltd. could use the WMIs of its two subsidiaries. In the June 4 letter, NHTSA stated that because the parent itself is not assigned a WMI, but its two divisions have separate WMIs, and will have distinct product lines, G.D. Ltd. may continue to use the WMIs assigned to the subsidiaries. Under the facts described, there would be no confusion as to which corporate entity manufactured a particular motor vehicle.

Your September 18, 1997, letter to us states that business plans have changed. Although Great Dane and Pines Trailers will continue to manufacture different types of trailers, the two divisions may now manufacture some trailers that are the same. The letter states that "these common trailers will have the same product markings regardless if they are built by Great Dane Trailers or Pines Trailers." In a telephone conversation with Dorothy Nakama of my staff, you stated that G.D. Ltd. no longer intends to keep the Great Dane and Pines Trailers names separate, distinctive trade names, and that the Pines Trailers name will eventually be phased out. However, Great Dane and Pines Trailers will be maintained as separate corporate entities, and each entity will be responsible for certifying the vehicles (pursuant to 49 CFR Part 567 Certification) it manufactures. For example, the certification label will identify the manufacturer as "Great Dane Trailer, a division of G.D. Ltd." or "Pines Trailer, a division of G.D. Ltd.," as appropriate. G.D. Ltd. will not manufacture any vehicles.

To answer your question, we must apply the regulatory provision of 49 CFR 565.4(a). That section provides that the WMI "shall uniquely identify the manufacturer, make and type of the motor vehicle if the manufacturer produces 500 or more motor vehicles of its type annually." NHTSA has previously interpreted "uniquely identify the manufacturer" to preclude the use of a WMI assigned to one manufacturer by any other manufacturer.

The primary difference between your new business plans and the plan described in our letter of June 4 is that Great Dane and Pines Trailers will no longer be advertised as separate trade names. The other facts remain the same; there are no plans for the parent company, G.D. Ltd., to manufacture motor vehicles (which would require obtaining a WMI), and within G.D. Ltd., Great Dane and Pines Trailers will remain separate entities, with each entity responsible for certifying the vehicles it manufactures. Although common vehicles built by either Great Dane or Pines will be identified with the same brand name, the certification label on each vehicle will indicate whether the vehicle was built by Great Dane or Pines.

Because the corporate structure of G.D. Ltd., as the parent company, with two subsidiaries, will remain the same, and G.D. Ltd. itself will not be manufacturing motor vehicles, we believe there would be no confusion if the separate divisions, Pines Trailer and Great Dane Trailers, continue to retain their own WMIs. Therefore, we agree that Pines Trailer and Great Dane Trailers may continue to use the WMI assigned to each respective entity.

Please note that because each division may continue to use the WMIs assigned to it, G.D. Ltd. must report any new types of trailers that either the Pines Trailer division or the Great Dane Trailers division will manufacture. 49 CFR Part 566 Manufacturer Identification requires manufacturers that have previously submitted identification information to keep their entries current by submitting revised information not later than 30 days after the relevant changes occur. A copy of Part 566 is enclosed for your information.

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

Sincerely,

John Womack
Acting Chief Counsel

Enclosure

cc: Ms. Cathy Douds

ID: 16075.ogm

Michael D. Witten
President
RW Industries
598 Eaton Ave.
Denuba, CA 93618

Dear Mr. Witten:

This responds to your letter concerning a device you have designed which, as you described, has "the purpose of positioning the cross over section of seat belts in automobiles. Later in the letter you refer to this device as the "Seat Belt Positioner." You request that this office provide you with the legal data regarding the manufacturing and marketing of items used as automobile accessories.

By way of background information, the National Highway Traffic Safety Administration (NHTSA) has the authority to issue Federal motor vehicle safety standards for new motor vehicles and new items of motor vehicle equipment. The agency does not approve, certify or endorse any vehicles or equipment. Instead, manufacturers are required to certify that their vehicles and equipment meet all applicable standards. The following represents our opinion based on the facts provided in your letter.

There is currently no Federal motor vehicle safety standard that would apply to your product. We do have a standard (Standard 209, Seat belt assemblies) that sets forth requirements for new seat belt assemblies. However, since your product would not be installed as part of a new seat belt assembly, the standard would not apply.

While no Federal motor vehicle safety standard applies to your product, your device is considered to be an item of motor vehicle equipment. As a manufacturer of motor vehicle equipment, you are subject to the requirements of 49 U.S.C. 30118-30121 concerning the recall and remedy of products with safety related defects. I have enclosed an information sheet that briefly describes those and other manufacturer responsibilities. In the event you or NHTSA determines that your product contains a safety-related defect, you would be responsible for notifying purchasers of the defective equipment and remedying the problem free of charge.

In addition, manufacturers, distributors, dealers, and motor vehicle repair businesses are subject to 49 U.S.C. section 30122, which prohibits them from installing the device if the installation "makes inoperative" compliance with any safety standard. It appears unlikely from the nature of your product that it would be placed in vehicles by commercial businesses instead of consumers. However, if your product were to be installed by persons in those categories, they must ensure that its installation does not compromise the safety protection provided by the vehicle belt system. The prohibition of section 30122 does not apply to the actions of vehicle owners in adding to or otherwise modifying their vehicles or items of motor vehicle equipment.

Please note that the addition of any device to a vehicle's belt system raises possible safety concerns. With a device such as yours, the realigning of the shoulder belt could increase the likelihood that the wearer would twist toward the middle of the vehicle, so that the person could be partially or completely unrestrained by the shoulder belt. In addition, if the device introduced excessive slack into the belt system, the occupant's head would be more likely to contact the vehicle interior. Finally, you should be aware that originally installed safety belts must meet the requirements of Standard No. 302, Flammability of Interior Materials. We encourage you to evaluate your product against the requirements of this standard to ascertain whether it would degrade the flammability performance of safety belts.

I hope this information has been helpful. If you have any other questions, please contact Otto Matheke of my staff at this address or by phone at (202) 366-5253.

Sincerely,
John Womack
Acting Chief Counsel
d.1/8/98
ref:209

ID: 16119.wkm

Mr. Richard T. Ince
C & J Technology, Inc.
9010 Pillsbury Avenue
Bloomington, MN 55420

Dear Mr. Ince:

Please pardon the delay in responding to your letter addressed to Georgia Jupinko, now Georgia Chakiris of this agency's Region 6 office, which was forwarded to this office for reply. You asked in your letter how to go about convincing the Federal government that your product, called the "Brake Alert" system, meets or exceeds applicable Federal motor vehicle safety standards (FMVSS). Based on the information you submitted, the "Brake Alert" neither meets nor exceeds FMVSSs, but could be installed on existing vehicles as an add-on, as discussed below.

You stated that you are marketing a brake monitoring device called "Brake Alert" that applies to all brake systems that use a push rod to activate the brakes. You stated that in your system, each brake has a sensor feeding into a black box that gives the driver a visual readout each time the brakes are applied. A dash-mounted monitor with LED lights for each wheel shows green lights if the brakes are functioning properly and a red light for each wheel on which the brakes malfunction or are not properly adjusted. If the monitoring system itself fails, all lights will turn red. The black box retains the last 64 brake applications in its memory, which can be checked by maintenance or law enforcement personnel by holding a device next to it. The memory can be removed from the black box and put into a computer for a printout showing the applications. Finally, you stated that you believe that your "Brake Alert" system meets or exceeds the requirements of "49 CFR CH.V (10-1-95) SECT.5.2.2(B)," which we assume refers to paragraph S5.2.2(b) of Federal Motor Vehicle Safety Standard No. 121, Air brake systems (49 CFR 571.121).

The National Highway Traffic Safety Administration (NHTSA) has the statutory authority to issue FMVSSs applicable to new motor vehicles and new items of motor vehicle equipment. Federal law establishes a self-certification system in which motor vehicle and equipment manufacturers themselves certify that their products comply with all applicable FMVSSs. Therefore, NHTSA neither tests, approves, disapproves, endorses, nor certifies compliance of products prior to their introduction into the retail market. NHTSA enforces compliance with the FMVSSs by purchasing motor vehicles and equipment and testing them for compliance with applicable standards. NHTSA also investigates safety-related defects. If a vehicle or item of replacement equipment is found not to comply with applicable standards or is found to have a safety-related defect, the manufacturer of that product is responsible for remedying the noncompliance or defect at no charge to the customer.

Subsection S5.1 of FMVSS No. 121 specifies brake requirements for trucks and buses, while subsection S5.2 specifies requirements for trailers. It was not clear from your letter that the "Brake Alert" system can be installed on trailers, but since you cited paragraph S5.2.2(b), which applies to trailers, we assume your "Brake Alert" is capable of being installed on trailers as well as single-unit vehicles. Thus, since brake malfunction or maladjustment anywhere in the tractor and trailer brake system is displayed in the cab, both S5.1 and S5.2 would apply. Paragraph S5.2.2(b), which reads essentially the same as paragraph S5.1.8(b), provides as follows:

(b) Brake indicator. For each brake equipped with an external automatic adjustment mechanism and having an exposed pushrod, the condition of service brake under-adjustment shall be displayed by a brake adjustment indicator in a manner that is discernible when viewed with 20/40 vision from a location adjacent to or underneath the vehicle, when inspected pursuant to S5.9.

Pertinent to this discussion, both S5.1.8(b) and S5.2.2(b) require that each service brake system with an exposed pushrod have a brake adjustment indicator viewable from outside the vehicle. Your informational material does not indicate whether the "Brake Alert" has a monitor visible from outside the vehicle. If the "Brake Alert" system displays brake malfunction or maladjustment inside the vehicle only, it does not meet, and therefore does not exceed, the requirements of either S5.1.8(b) or S5.2.2(b). Further, the "Brake Alert" system cannot substitute for the brake adjustment indicator required by S5.1.8(b) and S5.2.2(b) of Standard No. 121. However, so long as it does not interfere with the required brake adjustment indicator, it could be installed as an original equipment option or as an add-on to an existing vehicle.

The promotional literature enclosed with your letter indicates that the "Brake Alert" uses a "position sensor" to monitor the brake. It was not clear where or how the position sensor and related components are installed. The installation of these components must not interfere in any way with the operation of the pushrod or the required brake adjustment indicator, which normally consists of an indentation in the pushrod. If it does, that could constitute a violation of Title 49, U.S. Code, 30122, Making safety devices and elements inoperative (copy enclosed), which prohibits making inoperative any part of a device or element of design installed on or in a motor vehicle in compliance with any FMVSS. Violations of this provision can result in substantial civil penalties.

Finally, it is noted that the promotional brochure enclosed with your letter contains a statement that "Meets or exceeds U.S. FMVSS #121 . . . ." As discussed above, that is not a true statement if the "Brake Alert" offers in-cab only brake monitoring. It is requested, therefore, that you remove such statements from your promotional or advertising materials in order to avoid any misrepresentations to or misunderstandings by the public.

For your further information, I am enclosing fact sheets entitled Information for New Manufacturers of Motor Vehicles and Motor Vehicle Equipment, and Where to Obtain NHTSA's Safety Standards and Regulations.

I hope this information is helpful to you. Should you have additional questions or need further information, feel free to contact Walter Myers of my staff at this address or at (202) 366-2992, or by FAX at (202) 366-3820.

Sincerely,
John Womack
Acting Chief Counsel
Enclosure
Ref:121
d.5/1/98