ID: TransportCanada_000262

Mr. Wayne Duff
Importation and Audit Inspection
Transport Canada
ASFABA
Place de Ville, 300 Sparks St.
Ottawa, Ontario K1A 0N5
Canada

Dear Mr. Duff:

This is in response to your e-mail inquiry, in which you ask several questions concerning the application of vehicle identification numbers (VINs) and World Manufacturer Identifiers (WMIs) to imported "scooters" and off-road vehicles. Our response to each of your questions is set forth below.

As you are aware, the National Highway Traffic Safety Administration (NHTSA) regulates "motor vehicles." That term is defined by our statute as "a vehicle driven or drawn by mechanical power and manufactured primarily for use on public streets, roads, and highways, but does not include a vehicle operated only on a rail line."49 U.S.C.

30102(a)(6). NHTSA does not regulate vehicles manufactured primarily for off-road use (e.g., ATVs, snowmobiles). Instead, the Consumer Product Safety Commission (CPSC) has jurisdiction over the safety of such vehicles.

Our regulation governing VIN requirements, 49 CFR Part 565, Vehicle Identification Number Requirements, is limited in applicability to motor vehicles. The regulation defines the term "VIN" as "a series of Arabic numbers and Roman letters that is assigned to a motor vehicle for identification purposes." 49 CFR 565.3(o) (emphasis added).

In implementing Part 565, NHTSA contracts with the Society of Automotive Engineers (SAE) to generate and assign WMIs, which are required under the VIN regulation, to motor vehicle manufacturers. The SAE is the designated U.S. organization representing the International Standards Organization (ISO) for vehicle-related identification matters.

In your e-mail you provided photos of stand-up scooters, which Transport Canada classifies as restricted use motorcycles (RUMs), representative of the small gas and electric "scooters" currently being imported into Canada. The first photo depicts a "skate-board style" scooter. The scooter is basically a platform on two wheels with a handle bar and small motor, but no seat. The second photo depicts a scooter with a step through body design. The second scooter appears to have foldable handle bars and a removable seat. Information was not provided on the dimensions, power, or speed capacities of the scooters.

Your first question asked if U.S. manufacturers are required to affix a valid, 17 digit VIN to the type of vehicles depicted in the photographs you submitted. The short answer is that all passenger cars, multipurpose passenger vehicles, trucks, buses, trailers (including trailer kits), incomplete vehicles and motorcycles are required to be assigned and equipped with a VIN. 49 CFR 565.2. Regarding the vehicles depicted in the photos, it would first have to be determined if they were "motor vehicles." If these vehicles were "motor vehicles," and were categorized as one of the above vehicle classifications, then they would be required to be affixed with a VIN.

As previously noted, "motor vehicle" is defined at 49 U.S.C. 30102(a)(6) as:

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

When determining if a vehicle is manufactured primarily for use on the public streets, roads and highways, NHTSA will first look to see if the vehicle has on-road capabilities. Historically, if a vehicle has on-road capabilities, the agency has used a maximum speed capability of 20 mph, along with other vehicle characteristics, to divide motor vehicles from non-motor vehicles. [1] While a speed capability of 20 mph or less has not by itself meant that a vehicle is not considered a motor vehicle, a speed capability greater than 20 mph makes it much likelier that a vehicle will be used on the public highways and considered a motor vehicle.

Regarding a motorized scooter without any seat, such as the one in the first photo you submitted, the agency has in the past concluded that this type of vehicle is not a "motor vehicle." [2] As to the second scooter, the agency would rely on the vehicles characteristics (e.g., dimensions, speed capabilities) along with its intended use in order to make a determination. We note that in the upcoming months, the agency intends to further address the classification of two and three wheeled vehicles as motor vehicles through a notice in the Federal Register.

Once a vehicle is determined to be a "motor vehicle" and it falls within one of the vehicle classifications listed in Part 565, then a manufacturer is required to assign and affix a VIN to that vehicle. Part 565 is limited in applicability to motor vehicles, regardless of whether they are manufactured in the U.S. or abroad. Thus the SAE should only generate and assign WMIs to motor vehicle manufacturers. [3]

Approximately six months ago, NHTSAs Office of Vehicle Safety Compliance (OVSC) discovered that the SAE had been issuing WMIs to companies that were not manufacturers of motor vehicles but instead manufacturers of off-road vehicles or motor vehicle equipment, such as motorcycle frames, etc. [4]

This has created a number of problems. Under the existing, ISO-compatible system, there is only a finite and rapidly diminishing number of WMIs available for assignment to motor vehicle manufacturers producing 500 or more vehicles per year. Our current count shows only 604 WMIs available for assignment, and these could be exhausted within the next several years, if current trends continue.

In light of the above, OVSC directed the SAE to cease issuing new WMIs to off-road vehicle manufacturers and to begin to rescind the WMIs erroneously issued to off-road vehicle manufacturers and off-road vehicle equipment manufacturers, as those errors were discovered. OVSC took this action to assure the proper functioning of the VIN system for its intended purpose.

However, manufacturers of off-road vehicles raised the issue of State law provisions that require reporting of a "vehicle identification number" for off-road vehicles. While State regulations generally do not reference Part 565, some States are insisting on VINs that comply with that regulation, and in some cases, manufacturers who do not have such VINs have been fined.

To provide time for manufacturers of off-road vehicles to resolve these issues, we instructed the SAE to stay the rescission of WMIs previously issued to off-road vehicle manufacturers until January 1, 2005. SAE is currently working with off-road vehicle manufacturers to develop a system for WMIs issued to such manufacturers. However, we also instructed the SAE not to issue any new Part 565 WMIs to off-road vehicle manufacturers, so as to not exacerbate the existing problem.

If you have any further questions concerning these matters, please contact Mr. Chris Calamita of my staff at (202) 366-2992.

Sincerely,

Jacqueline Glassman
Chief Counsel

Enclosures
ref:565#595#571.3
d.3/9/04





---

[1] See letter to Mr. Dan Strauser; September 5, 2001 (enclosed).

[2] See letter to Mr. Andrew Grubb, June 12, 1995 (enclosed). "A motorcycle is defined as a motor vehicle with motive power having a seat or saddle for the use of the rider and designed to travel on not more than three wheels in contact with the ground [49 CFR 571.3]."

[3] Importers are required to use the VIN assigned by the original manufacturer. 49 CFR 565.5.

[4] See letter to Kathy R. Van Kleeck, May 21, 2003 (enclosed).

ID: tri-mark.rbm

Mr. Larry Wright
RV Market Manager
Tri/Mark
Industrial Park
New Hampton, IA 50659





Dear Mr. Wright:





This responds to your letter asking whether your side door locking system would meet the requirements of Federal Motor Vehicle Safety Standard (FMVSS) No. 206, Door locks and door retention components (49 CFR 571.206). The answer is yes.

By way of background, the National Highway Traffic Safety Administration (NHTSA) has the authority to issue Federal motor vehicle safety standards applicable to new motor vehicles and new items of motor vehicle equipment. NHTSA, however, does not approve motor vehicles or motor vehicle equipment, nor do we endorse any commercial products. The following represents our opinion based on the facts set forth in your letter and presented in subsequent conversations with Rebecca MacPherson of my staff.

You have requested confidentiality of your incoming request, and we have granted that confidentiality. In order to adequately address your request, however, we must provide a brief, general description of your door retention system.

You stated that your side door locking system consists of two separate locks. One can be locked and unlocked from either the inside or the outside of the vehicle. This lock, which is not attached to the door handle, is the vehicle's primary locking system. The second can only be locked from the outside of the vehicle, but when so locked, will not prevent an individual inside the vehicle from opening the door. This lock serves as a security feature when the vehicle is parked. The door may be the only door on the vehicle or it may be supplemental to traditional front doors. It typically would not qualify as a front door because it would generally be located behind the driver seat. ⁽¹⁾

You asked whether your side door locking system would comply with the requirements of S4.1.3, S4.1.3.1, and S4.1.3.2 of FMVSS No. 206.

Paragraph S4.1.3, FMVSS No. 206 provides:

Door Locks. Each door shall be equipped with a locking mechanism with an operating means in the interior of the vehicle.

We have interpreted S4.1.3 to require the following features: each door must have a locking mechanism, and there must be an interior operating means for engaging the locking mechanism. In your letter you state that your system has an interior means for engaging one of the two door locks. Accordingly, the requirement of S4.1.3 would be met.

Paragraph S4.1.3.1, FMVSS No. 206 provides:

Side Front Door Locks. When the locking mechanism is engaged, the outside door handle or other outside latch release control shall be inoperative.

Based on your explanation of your design, it is unlikely that the affected door would qualify as a front door. If it does qualify as a front door, the requirements for S4.1.3.1 would also be met since both locks on your system prevent an individual from opening the door when it is locked.

Paragraph S4.1.3.2, FMVSS No. 206 provides:

Side Rear Door Locks. In passenger cars and multipurpose passenger vehicles, when the locking mechanism is engaged both the outside and inside door handles or other latch release controls shall be inoperative.

One of the locks in your system will prevent the door from being opened from either inside or outside the vehicle when the lock is engaged. This lock meets the requirements of S4.1.3.2. The security lock does not meet the requirements of S4.1.3.2. However, this lock is supplemental and is not designed to meet the primary purpose of that section, i.e., preventing individuals from inadvertently opening locked doors while the vehicle is in motion.

Thus, the primary locking mechanism would meet the requirements of either S4.1.3.1 or S4.1.3.2, depending on the placement of the door relative to the driver seat. We note that even though the locking mechanism is not directly linked to the door handle, the door's latch release control, it does render the door handle inoperative since the door remains closed when the locking mechanism is engaged.

I hope this information is helpful to you. Should you have any further questions or desire additional information, please feel free to contact Rebecca MacPherson of my staff at this address or at (202) 366-2992.

Sincerely,

Frank Seales, Jr.
Chief Counsel

ref:206
d.7/26/00

1. FMVSS No. 206 defines a side front door as a door that in a side view has 50% or more of its opening area forward of the rearmost point on the driver's seatback when the driver's seat is adjusted to its most vertical and rearward position. The Standard defines a side rear door as a door that in a side view has 50% or more of its opening area rear of the rearmost point on the driver's seatback when the driver's seat is adjusted to its most vertical and rearward position.

ID: Trinkl.1

Ms. S. Trinkl
Quality Management
DEKRA Automobil GmbH
Senftenberger Straβe 30
D-01998 Klettwitz
Germany

Dear Ms. Trinkl:

This responds to your October 10, 2004, letter in which you requested information on how your company may obtain approval as a "DOT-registered test laboratory" in order to conduct testing for vehicles and automotive components, such as glazing materials, destined for the U.S. market. The short answer is the National Highway Traffic Safety Administration (NHTSA) does not approve independent testing facilities, and there is no requirement that testing laboratories meet specific standards. Instead, our regulations require manufacturers to self-certify that their products meet the requirements of all applicable Federal motor vehicle safety standards (FMVSSs). Because testing laboratories, in practice, may play a role in this process, we would take this opportunity to further explain our certification process for new motor vehicles and items of motor vehicle equipment.

By way of background, NHTSA is authorized to issue FMVSSs that set performance requirements for new motor vehicles and items of motor vehicle equipment. For example, one of those standards is FMVSS No. 205, Glazing Materials (49 CFR 571.205), which specifies performance requirements for various types of glazing. Unlike in Europe, however, the United States does not have an approval process for these products. Instead, as noted above, a manufacturer of motor vehicles or motor vehicle equipment must self-certify that its products comply with all applicable safety standards, prior to offering such products for sale.

Each of our safety standards specifies the test conditions and procedures that NHTSA will use to evaluate the performance of the vehicle or equipment when testing for compliance with that particular standard. NHTSA follows each of the specified test procedures and conditions in effect at the time of product certification when conducting its compliance testing. However, a manufacturer is not required to test its products only in the manner specified in the relevant safety standard, or even to test the products at all. A manufacturer may choose any means of evaluating its products to determine whether the vehicle or item of equipment complies with the requirements of the safety standards (including submission to a testing laboratory), provided that the manufacturer assures that the vehicle or equipment will comply with the safety standards when tested by the agency according to the procedures specified in the standard. The requirements concerning certification may be found at 49 CFR Part 567, Certification.

A manufacturer may be asked to show the basis for its certification that the vehicle or equipment complies with the relevant safety standard(s). If in fact there is a noncompliance, the manufacturer will have to recall the product to bring it into compliance at no charge to the customer.

In addition, the manufacturer will be subject to civil penalties under 49 U.S.C. Chapter 301, unless it can establish that it exercised "reasonable care" in the design and manufacture of the product and in the evaluation (through actual testing, computer simulation, engineering analyses, or other means) to ensure compliance, but nevertheless did not have reason to know that the vehicle or item of equipment did not in fact comply with the safety standards. This agency has long held that it is unable to judge what efforts would constitute "reasonable care" in advance of the actual circumstances in which a noncompliance occurs. What constitutes "reasonable care" in a particular case depends on all relevant facts, including such things as the limitations of current technology, the availability of test equipment, the size of the manufacturer, and, above all, the diligence exercised by the manufacturer. While one element of "reasonable care" would be the use of appropriate testing laboratories, there is no explicit requirement that testing laboratories be used or that they meet specific standards. Again, NHTSA does not approve independent testing facilities, nor will it recommend any particular testing center be utilized.

I hope you find this information helpful. If you have any further questions, please feel free to contact Eric Stas of my staff at this address or by telephone at (202) 366-2992.

Sincerely,

Jacqueline Glassman
Chief Counsel

ref:205
d.12/30/04

ID: Triplex

Mr. Paul Katz
President
Triplex Manufacturing Company
2700 West 50th Street
Chicago, IL 60632

Dear Mr. Katz:

This responds to your letter seeking our opinion whether Federal Motor Vehicle Safety Standard (FMVSS) No. 108, Lamps, Reflective Devices, and Associated Equipment, would preempt State laws seeking to establish requirements for insurers or repair businesses to install only vehicle lamps and lighting parts that are made by original equipment manufacturers (OEMs).

Your letter was prompted by the case of Avery v. State Farm, which we understand is now on appeal before the Illinois Supreme Court, and various proposed state laws that would make distinctions between OEM and non-OEM parts. You asked two questions.

First, you asked whether OEM and non-OEM lamps and lighting parts are of "like kind and quality" under FMVSS No. 108. In your letter, you state that the term "like kind and quality" is a term that was used by the court in Avery v. State Farm. The term does not appear in the statutes we administer or in our regulations. We note that the requirements under FMVSS No. 108 for original equipment and non-original equipment are the same, and further that the Federal motor vehicle safety standards establish minimum performance requirements. Because FMVSS No. 108 allows a wide range of performance, and does not include specifications that apply to non-safety characteristics such as fit and finish, different lamps may not be of "like kind and quality" yet still comply with Federal requirements.

Second, you asked whether Federal law preempts states from establishing standards for vehicle lamps and lighting parts that are different than those of FMVSS No. 108 based solely on whether the manufacturer is an OEM or non-OEM. Federal law preempts states from enacting laws that impose different requirements from those mandated by the Federal motor vehicle safety standards. States may, however, regulate in various areas including enacting operational, inspection and insurance requirements. In this way, states may be able to establish rules with respect to the repair of crashed vehicles without acting in a manner that is inconsistent with Federal law.

If you have further questions, you may refer them to Mr. Edward Glancy of this office (202-366-2992).

Sincerely,

Jacqueline Glassman
Chief Counsel
cc: Lawrence F. Henneberger, Esq.

ref:108
d.1/21/04

ID: Tunick telltale 001515

ID: Tunick.2

Mr. Lance Tunick
Vehicle Services Consulting, Inc.
P.O. Box 23078
Santa Fe, NM 87502-3078




Dear Mr. Tunick:

This responds to your October 18, 2004, letter in which you requested an interpretation of Federal Motor Vehicle Safety Standard (FMVSS) No. 205, Glazing Materials (49 CFR 571.205). Specifically, you asked whether our September 26, 2003, Federal Register notice (68 FR 55544) making correcting amendments to the standard would preclude the use of Item 4A glazing in the rear window of a convertible. The answer to your question is no.

By way of background, the National Highway Traffic Safety Administration (NHTSA) is authorized to issue FMVSSs that set performance requirements for new motor vehicles and items of motor vehicle equipment. One of those standards is FMVSS No. 205, which specifies performance requirements for various types of glazing. FMVSS No. 205 incorporates by reference the American National Standard Institutes (ANSI) Safety Code for Safety Glazing Materials for Glazing Motor Vehicles Operating on Land Highways (ANSI Z26.1). Accordingly, a manufacturer must certify compliance of its product with the requirements of FMVSS No. 205, including those requirements incorporated from ANSI Z26.1.

As noted in your letter, NHTSA is in the process of modifying the regulatory requirements under FMVSS No. 205, by shifting from the currently referenced 1977 version of ANSI Z26.1 (supplemented by Z26.1a-1980) to the 1996 version of that ANSI standard. A final rule to effect this change was issued on July 25, 2003 (68 FR 43964). However, subsequent notices were issued extending the compliance date for the final rule, most recently to September 1, 2006 (see 69 FR 51188 (August 18, 2004)).

One aspect of the amendments to existing Standard No. 205 involved the location requirements for Item 4A glazing. However, after issuance of the July 2003 final rule, NHTSA discovered that the location requirements for Item 4A glazing contained in the 1996 version of ANSI Z26.1 had the effect of modifying the agencys existing requirement that Item 4A glazing only be used in side windows rearward of the C pillar, by now permitting use of Item 4A glazing rearward of the B pillar. This substantive change to the Federal standard was unintended and contrary to long-standing agency policy. As stated in our August 12, 1996, final rule permitting

the installation of Item 4A glazing, "It has always been NHTSAs intent that Item 4A glazing not be permitted in areas where it may come into contact with an occupants head" (61 FR 41739, 41741). The concern has been to locate Item 4A glazing away from seating positions where occupants riding in those seating locations may be able to contact their heads against that glazing during a crash, because such glazing, when broken, could produce sharply pointed shards.

Accordingly, NHTSA published a correcting amendment to reinstate the location restrictions for Item 4A glazing contained in the previous version of FMVSS No. 205. To this end, paragraph S5.5 was added, providing, "Item 4A glazing, as specified in ANSI/SAE Z26.1-1996, may only be used in side windows rearward of the C pillar". (68 FR 55544, 55545

(Sept. 26, 2003)). This provision merely clarifies which side windows may use Item 4A glazing; it was not intended to restrict other specified locations where installation of Item 4A glazing is permissible.

We understand that Item 4A glazing meets or exceeds the properties of Item 4 glazing, so it would make little sense to impose more restrictive location requirements for Item 4A glazing. Thus, S5.5 does not alter that portion of ANSI Z26.1 that permits Item 4A glazing "[i]n all areas in which Item 4 safety glazing may be used", one of which is the rear window of convertible passenger car tops (see ANSI Z26.1 (1996 version) Item 4A(a), referencing permissible locations in Item 4(a)-(m)). We intend to issue a clarifying amendment in the near future.

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

Sincerely,

Jacqueline Glassman
Chief Counsel

ref:205
d.2/23/05

ID: tunick

Lance Tunick, Esquire
Vehicle Services Consulting, Inc.
P.O. Box 23078
Santa Fe, NM 87502-3078

Dear Mr. Tunick:

This responds to a message that you e-mailed to Coleman Sachs of my staff concerning a statement in an interpretation letter dated May 24, 2002 that we sent to Mr. Dick Keller of Bruno Independent Living Aids, Inc. of Oconomowoc, Wisconsin (Bruno). That letter addressed whether the replacement of a seat supplied on a motor vehicle as original equipment with a device developed by Bruno to facilitate the transfer of a mobility-impaired individual between a motor vehicle and a wheelchair would constitute an alteration that triggers the vehicle certification requirements in 49 CFR Part 567.

In discussing this matter, we noted that if the device were installed after the vehicles first retail sale, the installation would not constitute an alteration, but the installer would be prohibited under 49 U.S.C. 30122(b) from knowingly making inoperative any device or element of design installed on the vehicle in compliance with an applicable Federal motor vehicle safety standard (FMVSS). We further noted that in a final rule issued on February 27, 2001 (at 66 FR 12628), the agency created an exemption from this prohibition for motor vehicle repair businesses that modify vehicles to enable persons with disabilities to operate or ride as passengers in those vehicles. We stated that by virtue of this exemption, if the seating transfer device developed by Bruno "were to be installed in a vehicle after a sales contract is entered for the delivery of that vehicle, but prior to the actual transfer of title . . . the installer would not be subject to the making inoperative prohibitions of 49 U.S.C. 30122(b)."

Your message took issue with the latter statement. In particular, you contended that since the February 27, 2001 final rule, which is codified at 49 CFR Part 595, "only provides for an exemption from the making inoperative prohibition as regards FMVSS No. 207 when no driver seat is provided, then an installer of a seating system would be subject to the making inoperative prohibitions" (emphasis in original). Referencing 49 CFR 595.7(c)(13). You further noted, however, the agencys pronouncement, in its letter of August 21, 2001 to B&D Independence Co. Inc., that it would not pursue an enforcement action against the installer for a violation of the "making inoperative" prohibition if the installer follows procedures set forth in that letter.

We have reviewed our May 24, 2002 letter to Bruno in light of the concerns you have raised, and agree that it incorrectly implies that an exemption from the "making inoperative" prohibition is available, without limitation, to a motor vehicle repair business that replaces a seat supplied on a motor vehicle as original equipment with a transfer device such as the one developed by Bruno. Our letter to B&D Independence Co. noted, in fact, that the final rule establishing the amendments to Part 595 "does not contain any exemptions from Standard No. 207 or Standard No. 210 allowing for the installation of six-way power seat bases" similar to the device that Bruno is marketing.

Insofar as Standard No. 207 is concerned, the exemption from the "making inoperative" prohibition is only available under the Part 595 regulations "in any case in which a vehicle is modified to be driven by a person seated in a wheelchair and no other drivers seat is supplied with the vehicle, provided that a wheelchair securement device is installed at the drivers position." See 49 CFR 595.7(c)(13). Since the device marketed by Bruno would not result in "a wheelchair securement device [being] installed at the drivers position," so as to permit the "vehicle to be driven by a person seated in a wheelchair," no exemption from the making inoperative prohibition with respect to the requirements of Standard No. 207 is available under Part 595 to a motor vehicle repair business that installs such a device.

Our May 24, 2002 letter to Bruno is clarified accordingly. Thank you for bringing this matter to our attention.

Sincerely,

Jacqueline Glassman
Chief Counsel

cc: Mr. Dick Keller

Bruno Independent Living Aids, Inc.
P.O. Box 84
Oconomowoc, WI 53066

ref:567
d.1/16/03

ID: tunick.ztv

Mr. Lance Tunick
Vehicle Services Consulting, Inc.
P.O. Box 23078
Santa Fe, NM 87502-3078

Re: Request for Interpretation of 49 CFR 579.21 and 579.27

Dear Mr. Tunick:

This is in reply to your FAX of June 15, 2003, revising your request of June 9 for an interpretation of certain provisions of the early warning reporting (EWR) regulations issued by the National Highway Traffic Safety Administration (NHTSA), which are set out at Subpart C of 49 CFR Part 579.

Before addressing your specific questions, I would like to point out that you have raised several specific issues that had not been raised during the rulemaking proceeding that led to the EWR regulations. In this letter, I will provide an interpretation of what is required under the current regulatory language. However, we may revisit some or all of these issues when we conduct our promised review of the regulations after they have been in effect for some time.

You presented the following hypothetical facts as the context for your questions: (1) a manufacturer of light motor vehicles produces fewer than 500 vehicles in calendar year (CY) 2003 and therefore would report under 579.27 for CY 2003 (i.e., it would only have to report claims and notices involving deaths associated with its vehicles); and (2) during the first quarter of CY 2004 the same manufacturer produces more than 500 light vehicles and thus must report under 579.21 (i.e., it would have to provide comprehensive data about warranty claims, consumer complaints, property damage claims, and field reports) for that quarter and the rest of CY 2004.

Although your hypothetical scenario assumes that the manufacturer in question produced over 500 vehicles in the first quarter of CY 2004, I want to point out that NHTSA expects vehicle manufacturers to make good faith estimates of their expected annual production when deciding whether to report under 579.21-24 or 579.27. For example, if a manufacturer of light vehicles produces 150-200 light vehicles in the first quarter of any calendar year, and expects to continue production at similar levels throughout the year, it must report under 579.21, rather than 579.27. It may not wait until the quarter that it actually surpasses the 500-vehicle threshold.

You first asked us to confirm your view that:

1. [A manufacturer] must report full 579.21 information only as regards a past model year within the nine-prior-model-years if such model year either:
1. Had production "built for sale in the US" that exceeded 499 units; or
2. Fell within a calendar year that had: vehicle production "built for sale in the US," that exceeded 499 units; and

1. As regards model years during the "nine-prior-model-years" that do not meet either (a) or (b) above, [the manufacturer] must supply only 579.21(b) (incidents involving death) information.

Your suggested interpretations are inconsistent with the language of the regulation. The introductory text of 579.21 specifies that its reporting requirements apply to "a manufacturer whose aggregate number of light vehicles manufactured for sale, offered for sale, imported, or sold, in the United States, during the calendar year of the reporting period . . . is 500 or more . . . ." In any CY in which a manufacturer produces 500 or more light vehicles for sale in the United States, the manufacturer must report under 579.21, regardless of how many vehicles it produced in prior CYs. Moreover, the text goes on to say that any manufacturer reporting under that section must submit the comprehensive information required under 579.21(a) and (c) for the vehicles produced during the model year of the reporting period "and the nine model years prior to the earliest model year in the reporting period, including models no longer in production." Thus, under the rule, comprehensive submissions are required from such a manufacturer for vehicles produced during the prior nine model years, regardless of whether the manufacturer was previously required to provide that information with respect to the vehicles produced in those earlier years.

You also asked us to confirm your view that:

A large volume manufacturer that has been reporting under 579.21 but who then downsizes, would, once two calendar years have passed without its crossing the 500-unit mark, no longer have to supply full 579.21 information for the nine-prior-model-years (as it would be reporting under 579.27).

We agree that under the current regulatory language, any manufacturer that reports under 579.27 (because at least two years have passed without it producing 500 or more vehicles of any category), does not have to submit the comprehensive information required under 579.21, regardless of the number of vehicles it produced during the preceding model years. However, we expect it to retain the information required under 579.21.

If you have any additional questions, you may call Taylor Vinson (202-366-5263).

Sincerely,

Jacqueline Glassman
Chief Counsel

ref:579
d.7/24/03

ID: tunick2.ztv

Mr. Lance Tunick
Vehicle Services Consulting, Inc.
P.O. Box 23078
Santa Fe, NM 87502-3078

Re: Request for Clarification and Reconsideration of Interpretation

Dear Mr. Tunick:

This is in reply to your FAX letter of August 12, 2003, asking for a clarification and reconsideration of recent NHTSA interpretations of certain provisions of the early warning reporting (EWR) regulation issued by the National Highway Traffic Safety Administration (NHTSA), which are set out at Subpart C of 49 CFR Part 579.

Your first question is:"Consistent with the May 7, 2003, interpretation to Dan De Decker . . . is it correct that a Small Volume Manufacturer ('SVM', i.e. a producer with fewer than 500 USA units/year) does not have to report information going back 9 model years to the extent that such information is not available as computer data and only exists on paper?"

The threshold figure of 500 is not a sum total of motor vehicles but separate totals applicable to the individual categories we have established for EWR purposes. Thus, if a manufacturer produces 350 light vehicles and 400 medium-heavy vehicles in a year, it would report under 49 CFR 579.27 for each category.

The De Decker letter addressed a different situation then the one you raise. We informed Mr. De Decker that, to the extent that a manufacturer has not stored historical warranty records in an electronic medium (e.g., the warranty system is only paper-based), the manufacturer need not submit historical warranty information with respect to the one-time historical report required by Section 579.28(c). The one-time historical report is not required from manufacturers that report only under Section 579.27, and a manufacturer must provide the information on incidents involving deaths, as specified in subsections (b) and (c) thereof, even if it "only exists on paper."Prospectively, beginning with the third calendar quarter of 2003, manufacturers covered by 49 CFR 579.21-.26 must report warranty and warranty adjustment data regardless of the type of data storage system they maintain.

Your second question relates to the timing of a manufacturers determination of the 500 vehicle production threshold separating limited and comprehensive reporting under the early warning reporting regulation. As set forth in a letter to Jason Cavallo of July 21, 2003, where individual small volume manufacturers are held by a single parent corporation, under Section 579.3(b), EWR reports could be filed by either the parent corporation or each of the vehicle-manufacturing subsidiaries, but in either event, the production of all related vehicle manufacturers must be aggregated to determine whether the threshold for comprehensive reporting was met. We also stated in a July 24, 2003 letter to you that we expect each manufacturer to make a good faith estimate of its expected annual production of a category of vehicle, and that if its estimated production is 500 or more annually, the manufacturer should begin comprehensive reporting in the quarter in which the estimate is made rather than the quarter in which production actually reaches or exceeds 500.

You also stated that you had been under the impression that comprehensive reporting would begin with the first quarter following the calendar quarter in which production first exceeded 500. In consideration of these letters and your understanding of the regulation, you have asked us to agree to exercise our prosecutorial discretion not to take action against any manufacturer whose total production in 2003 was less than 500 if it fails to file comprehensive information for the first quarter of 2004.

While we do not believe it appropriate to make such a commitment, we do not anticipate taking enforcement action, particularly against relatively small manufacturers, who make good faith mistakes in attempting to comply with the EWR regulation.

If you have any questions, you may phone Andrew DiMarsico of my staff at (202) 366-5263.

Sincerely,

Jacqueline Glassman
Chief Counsel

ref:579
d.10/14/03

ID: Turner.1

Mr. Thomas D. Turner
Vice Chairman
School Bus Manufacturers Technical Council
6298 Rock Hill Road
The Plains, VA 20198-1916

Dear Mr. Turner:

This responds to your February 17, 2004, letter in which you discuss what you believe to be errors in certain school bus-related provisions of Federal Motor Vehicle Safety Standard (FMVSS) No. 111, Rearview Mirrors. Specifically, you stated that as currently printed in the Code of Federal Regulations (CFR), paragraphs S9.2(b)(1) and (b)(2) of the standard, pertaining to field of view requirements for the outside rearview mirrors on school buses, are inconsistent with amendments published in a 1995 final rule. Your letter seeks correction of the identified errors. After reviewing the relevant provisions, we agree that the current language in the CFR is inaccurate and in need of revision.

As you pointed out, the National Highway Traffic Safety Administration previously modified FMVSS No. 111, including the above-referenced provisions, in a Federal Register notice published on March 27, 1995 (60 FR 15600). Paragraph S9.2(b) of that final rule, changes which were properly reflected in the CFR as late as 1997, provided as follows:

(b) Includes one or more mirrors which together provide, at the drivers eye location, a view of:

(1)For the mirror system on the right side of the bus, the entire top surface of cylinder N in Figure 2, and that area of the ground which extends rearward from cylinder N to a point not less than 60.93 meters (200 feet) from the mirror surface.

(2) For the mirror system on the left side of the bus, the entire top surface of cylinder M in Figure 2, and that area of the of the ground which extends rearward from cylinder M to a point not less than 60.93 meters (200 feet) from the mirror surface.

We believe that we now understand the source of the problem.In 1998, FMVSS No. 111 (and several other standards) were amended as part of the agencys metric conversion efforts (see 63 FR 28922 (May 27, 1998); 63 FR 50995 (September 24, 1998)). In converting the above requirements to metric measurements (i.e., 61 m), the May 27, 1998, Federal Register notice mistakenly inserted language referencing "area of the ground," rather than maintaining proper focus on the test cylinder (see 63 FR 28922, 28929). Subsequently, in attempting to correct an error brought to the agencys attention in a petition for reconsideration, the September 24, 1998, Federal Register notice mistakenly inserted a correction intended for S9.3(b)(2) at S9.2(b)(2) (see 63 FR 50995, 51000). Thus, the changes you have pointed out resulted from simple error, rather than any intentional regulatory action.

We appreciate your bringing this error to our attention, and we wanted to make you aware that we have drafted the attached correcting amendment to the standard to resolve the issue that you have raised. If you have further questions, please feel free to contact Eric Stas of my staff at this address or by telephone at (202) 366-2992.

Sincerely,

Jacqueline Glassman
Chief Counsel

Enclosure
ref:111
d.4/8/04