ID: nht90-1.39

TYPE: Interpretation-NHTSA

DATE: February 7, 1990

FROM: Dipl.-Ing. H. Westermann -- Hella KG Hueck & Co.

TO: Richard van Iderstine -- Rulemaking Department., NHTSA

TITLE: Request for written response - CHMSL unity.

ATTACHMT: Attached to letter dated 2-21-90 To Taylor Vinson and From Dipl.-Ing. H. Westermann (OCC 4484); Also attached to letter dated 4-25-90 To Dipl.-Ing. H. Westermann and From Stephen P. Wood (A35; Std.108)

TEXT:

One of our customers prefers to place a logo within or in between the light emitting surface of a CHMSL. The enclosed sketches show two such designs: one for inside mounting behind the rear window (encl. 1), an other for top mounting on the trunk of a convertible (encl. 2). According to ECE Regulation 48, 5 2.14.2, a signalling lamp consisting of juxtaposed elements forms a single unit if the smallest rectangle circumscribing the several light emitting surfaces is occupied by not less than 60 percent of light emitting area. E/ECE/324 E/ECE/trans/505 Rev.1/Add.47 Regulation No. 48 page 6 2.14.2. "two lamps" or "an even number of lamps": a single light-emitting surface in the shape of a band or strip if such band or strip is placed the median longitudinal plane of the vehicle, extends on both sides to within at least 0.4 m of the extreme outer edge of the vehicle, and is not leas than 0.8 m long; the llumination of such surface shall be provided by not less than two light sources placed as close as possible to its ends; the light-emitting surface may be constituted by number of juxtaposed elements on condition that the projections of the several individual light-emitting surfaces ona transverse plane occupy not less than 60 per cent of the area of the smallest rectangle circumscribing the projections of the said individual light-emitting surfaces;

In above design this requirement is fulfilled and the total area exceeds the required 4.5sq.inch. We ourself see no problem in such a design for a CHMSL since neither the signal configuration (triangle of stop lamps) nor acuity (by luminance and intensity) are affected. Since neither SAE nor FMVSS 108 yield a clear definition of signal unity if constituted of partial areas, we would like to learn whether NHTSA supports the ECE definition and can accept such CHMSL design as not violating the FMVSS requirements. A soon answer on this item is very much appreciated.

Enclosures 2 Graphics Omitted.

ID: nht90-1.4

TYPE: Interpretation-NHTSA

DATE: 01/01/90 EST

FROM: Stephen W.A. Pickering -- Valley Sales Inc.

TO: Stephen R. Kratzke -- Deputy Assistant Chief Counsel for Rulemaking, NHTSA

TITLE: None

ATTACHMT: Attached to 5 photos (graphics omitted); Also attached to Report on Test of Sofa Bar according to FMVSS No. 210 (text and graphics omitted); Also attached to Test Report Number 096441-89 (text and graphics omitted) (test results are available i n the file); Also attached to letter dated 9-10-90 from P.J. Rice to S. Pickering (A36; Std. 111, Std. 202, Std. 207; Std. 208; Std. 209; Std. 210)

TEXT:

Per our conversation by telephone please find enclosed photographs, drawings, descriptions, and accompanying data that I have available at this time concerning the product I am making, trade named "RUMBLE SEAT". The product is a rear facing auxilary seat ing system for Pick up trucks.

It is a unique product that I have initiated a patent application on and a product which I have designed to be as safe and comfortable as I can.

It is my wish to be in compliance with any applicable codes and standards that I am now aware of or those I become aware of at a later date.

I have used for reference the Code of Federal Regulations (CFR) Title 49 containing National Highway Traffic Safety Administration (NHTSA) Standards.

I have listed those standards that I feel may apply to my product, and those I feel I am in compliance with, Or at least those I feel I am NOT out of compliance with.

CODE 49-Standard 209 "Seat belt Assemblies"

I believe I am in compliance by the "DEFINITIONS" S3 by using a Type 1 seatbelt assembly a "LAP BELT FOR PELVIC RESTRAINT" please see enclosed test data on the seatbelts I am now using.

CODE 49 Standard 210 "Seatbelt Assembly Anchorages"

I have enclosed pictures, drawings, and test result data for you to determine compliance, I feel I comply here also.

CODE 49 Standard 571.208 "Occupant Crash Protection"

S4.1.1.3.2. "Convertibles and open body type vehicles" provides that either Type 1 or Type 2 seatbelt assemblys may be used. I am using a Type 1 belt assembly Manual Seatbelts, again, please find test data.

CODE 49 Standard S571.111 "REARVIEW MIRRORS"

My product provides seating for 2 (two) people with space between each

seat to help minimize interference with drivers "FIELD OF VIEW" When the seats are un-occupied with the headrests down there is very minimal interference with view and does not compromise, my compliance status at all.

CODE 49 Standard 571.202 "HEAD RESTRAINTS"

I feel I need HELP with interpertation and compliance here.

Because my product sets directly behind the cab, facing the rear of the pick-up bed, any adult would find the back of the head in close proximity to the outside rear of the cab.

It seemed prudent, therefore, to offer some sort of protection

While there may be several ways to attempt to accomplish this I need to settle on one that will be in compliance with the codes and standards of your bureau.

One way would be a stationary headrest in corporated in the product.

Another may be a stationary headrest permanently affixed to the cab.

Another may be an ADJUSTABLE headrest permanently affixed to the cab.

Another may be a removable headrest either on the product itself, or on the cab. (I WOULD FAVOR THIS SYSTEM)

I decided an adjustable headrest incorporated into the product would be the best way to proceed.

There is one other choice that I have considered, and I am in the opinion that I may have an easier time with compliance. I briefly describe the other system in the enclosed explaination and drawing.

I am asking you to comment as to the possibility of compliance of each system described I have outlined here.

Thank you for your consideration and I hope to be in contact with you regarding my progress in complying with any applicable standards. ANY additional suggestions you may have would be helpfull.

enclosed:

1. test results of seatbelt systems from United States Testing Co. 2. Test results for seatbelt bar anchorage system from Stoutco. 3. Photographs and drawings of product seeking compliance. 4. Possible alternate headrest mounting systems. explaination a nd drawings.

(Photos and text are omitted but are available in the file.)

ID: nht90-1.40

TYPE: Interpretation-NHTSA

DATE: February 12, 1990

FROM: Johannah Bonewald -- Voskamp Motors., Office Manager

TO: Phil Gramm -- U.S. Senator

TITLE: None

ATTACHMT: Attached to letter dated 5-10-90 To Phil Gramm and From Stephen P. Wood; Also attached to letter dated 0-0-0 To John Cerisano and From Phil Gramm; Also attached to letter dated 1-29-90 To All Ford Rent-A-Car System Members and From W.A. Jacques

TEXT:

Please find enclosed a copy of a Ford-Rent-A-Car System Bulletin that was sent to Ford dealers last week. As you can see, the bulletin concern the rental of vans to be used to transport students. We have had 15-Passenger rental vans in service for the past 15 years and probably the biggest customer we have are the schools in our area. I cannot understand the reasoning behind this regulation. This vehicle is probably one of the safest means o f transporting students. Any information you can give to me as to the reasoning behind this regulation, or information on who to contact to give us more details would be very much appreciates.

Thank you for you help.

ID: nht90-1.41

TYPE: Interpretation-NHTSA

DATE: February 12, 1990

FROM: Johannah Bonewald -- Office Manager., Voskamp Motors

TO: Lloyd Bentsen -- U.S. Senator

TITLE: None

ATTACHMT: Attached to letter dated 5-25-90 To Lloyd Bentsen and From Stephen P. Wood; (A35; VSA 102(14), 108(a)(1)(A), 108(b)(1)); Also attached to letter dated 1-29-90 To All Ford Rent-A-Car System Members and From W.A. Jacqu es; Also attached to letter dated 3-8-90 To Jerry Ralph Curry and From Lloy d Bentsen

TEXT:

Please find enclosed a copy of a Ford-Rent-A-Car System Bulletin that was sent to Ford dealers last week. As you can see, the bulletin concerns the rental of vans to be used to transport students. We have had a 15-Passenger Rental van in service for the past 15 years and probably the biggest customer we have are the schools in our area. I cannot understand the reasoning behind this regulation. This vehicle is probably one of the safest means of tr ansporting students. Any information you can give to me as to the reasoning behind this regulation, or information on who to contact to give us more details would be very much appreciated. Thank you for your help.

ID: nht92-4.34

DATE: August 17, 1992

FROM: Paul Jackson Rice -- Chief Counsel, NHTSA

TO: Charles Henry, Jr.

TITLE: None

ATTACHMT: Attached to letter dated 7/1/92 (est) from Charles Henry, Jr. to Paul J. Rice (OCC 7297)

TEXT:

This responds to your letter that requested information about how the laws and regulations administered by this agency would apply to a device you wish to market. Since your device is an item of "motor vehicle equipment," it would be subject to our jurisdiction as explained below.

In your letter, you stated that when installed in a motor vehicle, your device would automatically shut down the "lighting circuits of an automobile or vehicle" within a prescribed time period after the motor is turned off. In a telephone conversation with Dorothy Nakama of my staff, you explained that the lights controlled by the device are the headlights and tail lights.

By way of background information, NHTSA has no authority to approve, endorse or offer assurances of compliance for any motor vehicle or item of motor vehicle equipment. Instead, the National Traffic and Motor Vehicle Safety Act of 1966 ("Safety Act," 15 U.S.C. 1381 et seq.) authorizes this agency to regulate "motor vehicles" and "motor vehicle equipment." Section 102(4) of the Safety Act (15 U.S.C. 1391(4)) defines "motor vehicle equipment," in part, as:

any system, part, or component of a motor vehicle as originally manufactured or any similar part or component manufactured or sold for replacement or improvement of such system part, or component or as any accessory or addition to the motor vehicle...

As an "addition" to the motor vehicle that automatically shuts off the vehicle's lights, after the motor is shut down, we would consider your device as "motor vehicle equipment."

There are no specific provisions in the safety standards that set forth requirements for devices that automatically shut off lights on motor vehicles, after the motor is shut down. Thus, your company as the manufacturer of such a device would not have to certify that the device complies with any safety standards before offering it for sale to the public.

From your letter, it appears that your device is initially intended for installation after first sale of the motor vehicle to the public, but may later be sold for installation before such sale. The addition of this device to a vehicle before the vehicle's first sale could affect the vehicle's compliance with the safety standards. NHTSA's certification regulation requires vehicle manufacturers to permanently attach a label to each of their new vehicles stating that the vehicle complies with all applicable safety standards. See 49 CFR S567.4. The certification regulation also sets forth requirements for persons who modify previously certified vehicles by adding, modifying, or substituting readily attachable components. Such persons are considered "alterers" of the previously certified vehicles. Alterers are required to

leave the original manufacturer's label in place and affix an additional label identifying the alterer and stating that the vehicle, as altered, continues to comply with all applicable safety standards. See 49 CFR S567.7. As you may be aware, Federal Motor Vehicle Safety Standard No. 101; Controls and displays, specifies requirements for the illumination of motor vehicle controls and displays, and Standard No. 108; Lamps, reflective devices, and associated equipment, specifies requirements for lamps on motor vehicles.

While your letter gave no details about how this device would be installed in a vehicle, it seems highly unlikely that a device would be regarded as "readily attachable" if it is designed to automatically shut off lights on a motor vehicle, when the motor is shut down. Thus, any person that installed this device on a new vehicle before the vehicle's first sale to the public would be required to certify that the vehicle complies with all applicable safety standards, including Standards No. 101 and 108, with this device installed.

After the first sale of the vehicle to the public, certain persons who modify vehicles are subject to the prohibition in section 108(a)(2) of the Safety Act (15 U.S.C. 1397(a)(2)). That section provides that: "No manufacturer, distributor, dealer, or motor vehicle repair business shall knowingly render inoperative, in whole or in part, any device or element of design installed on or in a motor vehicle or item of motor vehicle equipment in compliance with an applicable Federal motor vehicle safety standard..."

To avoid a "rendering inoperative" violation for vehicles that comply with any of our safety standards, commercial after market installers of your device should examine any installation instructions that you may have for your device and compare those instructions with the requirements of our safety standards, to determine if installing the device in accordance with those instructions would result in the vehicle no longer complying with any of those safety standards. If the installation of your device would not result in a "rendering inoperative" of the vehicle's compliance with the safety standards, the device can be installed by manufacturers, distributors, dealers and repair shops without violating any Federal requirements.

The prohibitions of Section 108(a)(2)(A) do not apply to the actions of a vehicle owner in modifying his or her vehicle. Thus, a vehicle owner would not violate the Safety Act by installing your device even if doing so would adversely affect some safety feature in his or her vehicle.

Manufacturers of motor vehicle equipment such as your device are also subject to the requirements in sections 151-159 of the Safety Act (15 U.S.C. 1411-1419) concerning the recall and remedy of products with defects related to motor vehicle safety. The Safety Act specifies that if either your company or this agency determines that a safety-related defect exists in your device, your company as the manufacturer must notify purchasers of the safety-related defect and must either:

(1) repair the product so that the defect is removed; or

(2) replace the product with identical or reasonably equivalent products which do not have a defect.

Whichever of these options is chosen, the manufacturer must bear the full expense and cannot charge the owner for the remedy if the equipment was purchased less than 8 years before the notification campaign.

For your information, I have enclosed a copy of an information sheet for new manufacturers of motor vehicles and new motor vehicle equipment. This sheet gives a brief description of our regulations and explains how to obtain copies of those regulations. You should also be aware that state laws may apply to the use of your device. For further information on state laws, you may wish to contact the American Association of Motor Vehicle Administrators at 4600 Wilson Boulevard, Arlington, Virginia 22203.

I hope this information is helpful. Please feel free to contact Dorothy Nakama of my staff at this address or by telephone at (202) 366-2992 if you have any further questions or need additional information.

Attachment

NHTSA Information Sheets: Information For New Manufacturers of Motor Vehicles and Motor Vehicle Equipment; and Where to Obtain NHTSA's Safety Standards and Regulations (Text omitted)

ID: nht92-4.35

DATE: August 17, 1992

FROM: Spencer A. Darby -- Vice President - Engineering, Sate-lite Mfg. Co.

TO: Legal Counsel - FMVSS 125 -- NHTSA

COPYEE: Larry Michelson

TITLE: None

ATTACHMT: Attached to letter dated 10/28/92 from Paul Jackson Rice to Spencer A. Darby (A40; Std. 125)

TEXT:

IN THE "S1. SCOPE" AND "S3. APPLICATION" SECTIONS OF FMVSS 125, REFERENCE IS MADE TO "...DEVICES, WITHOUT SELF-CONTAINED ENERGY SOURCES,...".

I AM RESPECTFULLY REQUESTING AN AGENCY INTERPRETATION OF THIS PHRASEOLOGY IN REGARDS TO ONE PUTTING FLASHING, BATTERY OPERATED LIGHT SOURCES BETWEEN THE REFLEX REFLECTORS PORTION OF AN OTHERWISE COMPLYING WARNING DEVICE. WOULD THIS ALTERED DEVICE BE IN COMPLIANCE WITH THE FMVSS 125 STANDARD IF THE LIGHT SOURCES WERE OPERATED AFTER DARK? OR, PHRASED ANOTHER WAY, DOES FMVSS 125 APPLY TO AN OTHERWISE COMPLYING DEVICE THAT HAS FLASHING LIGHTS IN IT, AND, IF NOT, WOULD A VEHICLE WHICH IS REQUIRED TO HAVE THE THREE 125 WARNING TRIANGLES HAVE TO HAVE THREE NON-LIGHTED COMPLYING TRIANGLES SET OUT AS WELL?

IT IS OUR OPINION THAT FLASHING LIGHTS IN AN OTHERWISE COMPLYING EMERGENCY WARNING TRIANGLE ENHANCES THE ATTENTION GRABBING CAPABILITY OF THE DEVICE AFTER DARK.

PLEASE FEEL FREE TO TELEPHONE THE WRITER AT ANY TIME, IF HE COULD BE OF FURTHER ASSISTANCE IN CLARIFYING THIS REQUEST FOR AN INTERPRETATION.

ID: nht92-4.36

DATE: August 16, 1992

FROM: Robert N. Moore -- No. 203048, Iowa State Penitentiary

TO: Mr. Curry

TITLE: Re: Safety Act; 15 U.S.C., Section 1381 et seq.; F.M.V.S.S. #208

ATTACHMT: Attached to letter dated 9/28/92 from Paul Jackson Rice to Robert N. Moore (A39; Std. 208)

TEXT:

I'm pleased to make your acquaintance.

This is a request for information, in the form of an official statement from your agency, concerning an interpretation of the above-caption statute and Safety Standard.

Before going further I should inform you that my prison I.D. No., given above, must follow my name on the face of your reply envelope.

The circumstances surrounding this request is a lawsuit I am prosecuting in the United States District Court for the Central District of Illinois. That court is in Peoria, and the suit is captioned as MOORE V. GREEN, CV89-4129.

The factual basis of this action concerns my transportation in a law enforcement vehicle which was a regular, passenger van, with modifications to change it into a "paddy wagon" type of vehicle. The defendants admit that the device did not contain any type of occupant restraint system for my safety. I did sustain injury in the vehicle.

I have based one cause of action upon an alleged violation of the Safety Act and F.M.V.S.S. #208. The suit is presently at the discovery stage; and upon my receipt of answers to Interrogatory questions, both parties have informed the Magistrate of the intention to file motions for summary judgment. I am assuming that the defendants will rely as heavily upon the Interrogatory answers as I plan to do.

It thus appears that our first battle will focus upon the question of whether or not I have been bestowed the equivalent of a right or privilege under the Act to have been provided with a seat belt. And following that question, is that right enforceable under the remedial authority of 42 U.S.C., Section 1983, which is the statute I am using to obtain compensation.

Of course I have no idea of the research capabilities of the Asst. State's Attorney who is defending, but I do know that I can find no legal authority, at least in the cases, which addresses the specific question of whether the Act does in fact create a right to have a restraint system; and the related question of whether or not Congress has either allowed, or foreclosed a remedy under Section 1983 to enforce that right.

It is at this point where I think everyone involved would benefit from an expert opinion.

I'm sure you are probably aware of the policy of the federal judiciary to defer to, or to at least consult a government agency's own interpretation of the relevant statutes and regulations in these types of cases.

During my research I've discovered several recent opinions where one of the parties wrote an agency, exactly as I am doing here, for opinions or interpretations of the law bearing upon the issues of those particular actions. The written replies were submitted to those courts and were well received by them. I believe your written opinion could also guide our court when I will be required to conduct an agency interpretation analysis in this case.

In case you are disposed towards providing something to clarify the issue in this case, I can offer the following examples as reference points.

The opinion of GOLDEN STATE TRANSIT CORP. V. CITY OF LOS ANGELES, 110 S.CT. 444, probably frames the entire problem much better than I can explain it.

From the viewpoint of that case, I suppose I could just ask two specific questions to make this an easier task for you:

1. Does the Safety Act, and F.M.V.S.S. #208, create a "binding obligation", as opposed to merely expressing a "congressional preference" as to the inclusion of seat belts in motor vehicles?

2. Do any provisions of the Act, or any regulations show that Congress specifically foreclosed a remedy under Section 1983?

I await your reply.

ID: nht92-4.37

DATE: 08/14/92

FROM: PATTI AUPPERLEE

TO: DEE FUJIDA -- OFFICE OF CHIEF COUNSEL, NHTSA

ATTACHMT: ATTACHED TO LETTER DATED 10-28-92 FROM PAUL JACKSON RICE TO PATTI AUPPERLEE (STD. 213; A40)

TEXT: My name is Patti Aupperlee. My business partner, Beth Wiswell, and I have invented a product for childrens car seats. We would like to manufacture them and then sell them retail. We want to comply with all government regulations regarding products for front facing car seats for children.

Our product name is COOL COVER and has a patent pending number of 07/684,783. This product is not the same as the current covers on the market. An example is the Diplomat Juvenile Corporation makes an infant car seat cover which is a liner for use when the child is in the car seat and it leaves several areas of the car seat exposed to direct sunlight and heat when the car seat is in a parked and empty car. COOL COVER completely covers the car seat when the child is not in the car seat and it is exposed to direct sunlight. The cover absorbs the heat that builds up in a parked car. The car seat will not be burning hot when it is time to travel with the child. The product also comes with its own specially designed pouch that turns into a comfortable pillow for the childs head. The pillow also acts as a storage area for the cover. The pillow does not interfere with the safety purpose of the car seat, or any of its straps or buckles. The COOL COVER is unique in that it significantly reduces the heat build up on the car seat in a parked car.

I received your name from Dick Jasinski at (202) 366-5298. The Auto Safety Hotline recommended that I speak with him. He mentioned that we need to make sure we are following governmental standards on flame retardants and any intereferance of operation among others that your office would give us the necessary information of standards. I have received a copy of FEDERAL MOTOR VEHICLE SAFETY STANDARD NO. 213.

I am enclosing a description of the product, pictures, the materials used, and a sample of those materials. Please advise me of the regulations that apply to our product.

The COOL COVER was created out of concern for the comfort of all children who must ride in a HOT car seat. We are mom's who never thought a car seat could be "dangerous" until one of our children suffered a burn from the contact with a buckle after the car seat had been exposed to the sun in a parked car.

I can be contacted at (407) 478-5850. My address is 5961 St. Barbara St. West Palm Beach, Florida 33415. Thank you for your attention in this matter.

ATTACHMENT OMITTED.)

ID: nht92-4.38

DATE: August 12, 1992

FROM: Paul Jackson Rice -- Chief Counsel, NHTSA

TO: Tim Flagstad

COPYEE: Joan Moniz

TITLE: None

ATTACHMT: Attached to letter (fax) dated 7/24/92 from Tim Flagstad to Paul J. Rice (OCC 7574)

TEXT:

This responds to your FAX of July 24, 1992, seeking clarification of our letter to you of July 20.

This matter concerns the importation of a 1981 Kenworth truck from Canada that was manufactured in that country. The truck entered pursuant to the declaration that the vehicle was manufactured to conform to all applicable Federal motor vehicle safety standards, and bore a certification label to that effect. The current owner of the truck says that it bears no U.S. certification label. Our earlier letter informed you that entry under the conformance and certification provisions was therefore erroneous, and that the truck should have been imported under the new provisions for importing nonconforming motor vehicles that became effective on the day of importation.

Your letter of July 24 states that a certification label was attached at the time of importation, and you have asked "As the Certification Label was on the truck at the time it came through Customs, how would this affect the entry status of this vehicle?"

Assuming that the truck bore a certification label, the question is whether the label certified compliance to the U.S. or Canadian Federal motor vehicle safety standards. If the manufacturer certified compliance to the Canadian standards, then my previous advice remains in effect: the entry of this truck as a vehicle conforming, and certified as conforming, to U.S. safety standards was erroneous.

If, on the other hand, the manufacturer certified compliance to the U.S. standards, the truck was properly entered.

However, it appears more likely than not that such certification as may have been affixed was to the Canadian standards. We understand that the truck lacked equipment necessary for conformance to Standard No. 121, "Air Brake Systems", and that its VIN did not consist of 17 characters. These were requirements of the U.S., but not the Canadian, Federal motor vehicle safety standards at the time the truck was manufactured.

The apparently erroneous admission by the U.S. Customs service is understandable. Canada permits certification either in the form of a "National Safety Mark" (maple leaf) or a statement of compliance with "Federal motor vehicle safety standards", the identical phrase used in U.S. certification labels. When a Canadian manufacturer employs this certification statement, a

closer examination of the certification label is necessary. If GAWR and GVWR ratings are expressed in pounds, the certification is to the U.S. standards; if expressed in kilograms, the certification covers the requirements of Canada.

ID: nht92-4.39

DATE: August 12, 1992

FROM: Paul Jackson Rice -- Chief Counsel, NHTSA

TO: L.J. Sharman

TITLE: None

ATTACHMT: Attached to letter dated 4/13/92 from L.J. Sharman to NHTSA (OCC 7450)

TEXT:

This responds to your letter requesting information about whether the National Highway Traffic Safety Administration (NHTSA) has issued any regulations addressing the retention of records regarding compliance testing results. Your question arises in the context of the testing procedures set forth in Standard No. 302, Flammability of Interior Materials. (49 CFR S571.302).

As explained below, the agency makes available all of its compliance test results through its Technical Reference Division. However, the agency has no such requirements for manufacturers or other persons to keep records concerning any test results. Nevertheless, a manufacturer would be well advised to retain such records in case its motor vehicle or item of equipment did not comply with an applicable safety standard.

By way of background information, the National Traffic and Motor Vehicle Safety Act (15 U.S.C. 1381 et seq., the "Safety Act") gives this agency the authority to issue safety standards applicable to new motor vehicles and new items of motor vehicle equipment. Each of the agency's safety standards specifies the test conditions that this agency will use to assure whether the performance of the vehicle or equipment being tested is in compliance with the safety standard. NHTSA follows the established test procedures and conditions when conducting its compliance testing. The results of NHTSA's compliance tests are always recorded and made available to the public in the agency's Technical Reference Division.

However, the Safety Act does not require a manufacturer 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 certifying that its products comply with the requirements of the safety standards. If the manufacturer chooses to conduct testing, there is no requirement that the manufacturer retain those results.

However, if the agency testing shows that an apparent noncompliance exists with a vehicle or item of equipment, the manufacturer is asked to show the basis for its certification that the vehicle or equipment complies with the relevant safety standard or standards. If, in fact, there is a noncompliance, the manufacturer is subject to civil penalties under the Safety Act unless it can establish that it exercised "due care" in the design and manufacture of the product and in the checks (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. Given the potential for civil penalties, it is in the manufacturer's best interests to retain its testing records in case it must establish due care. (See 15 U.S.C. 1397(b)).

I note that the agency has issued a regulation addressing recordkeeping, 49 CFR Part 576, Record Retention, which establishes requirements for the retention by motor vehicle manufacturers of complaints, reports, and other records concerning motor vehicle malfunctions. However, nothing in this provision requires retention of information generated during compliance testing.

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