ID: nht90-4.84

TYPE: Interpretation-NHTSA

DATE: December 14, 1990

FROM: Paul Jackson Rice -- Chief Counsel, NHTSA

TO: Roger C. Fairchild -- Shutler and Low

TITLE: None

ATTACHMT: Attached to letter dated 10-5-90 from R.C. Fairchild to P.J. Rice (OCC 5287)

TEXT:

This responds to your request for my opinion of whether a particular vehicle (the Pinzgauer) would be considered a "motor vehicle" for the purposes of the National Traffic and Motor Vehicle Safety Act. When NHTSA previously considered this question, we stated in a March 25, 1982 letter to Mr. Leonard Fink that the Pinzgauer would be considered to be a motor vehicle, based on the information that was available to the agency at that time. However, that letter also stated that the agency would be willing to reconsider this conclusion if additional information were provided regarding the vehicle's marketing, advertising, and actual use. Your recent letter set forth three additional factors that you suggested might lead the agency to change its previous conclusion that the Pinzgauer was a motor vehicle. As explained in detail below, this agency reaffirms the previous conclusion that the Pinzgauer appears to be a motor vehicle.

Section 102(3) of the Safety Act (15 U.S.C. 1391(3)) defines a "motor vehicle" as

any vehicle driven or drawn by mechanical power manufactured primarily for use on the public streets, roads, and highways, except any vehicle operated exclusively on a rail or rails.

NHTSA has interpreted this language as follows. Vehicles that are equipped with tracks or are otherwise incapable of highway travel are plainly not motor vehicles. Further, vehicles designed and sold solely for off-road use (e.g., airport runway vehicl es and underground mining devices) are not considered motor vehicles, even though they may be operationally capable of highway travel. Vehicles that have an abnormal body configuration that readily distinguishes them from other highway vehicles and a ma ximum speed of 20 miles per hour (mph) are not considered motor vehicles, because their use of the public roads is intermittent and incidental to their primary intended off-road use.

On the other hand, vehicles that use the public highways on a necessary and recurring basis are motor vehicles. For instance, a utility vehicle like the Jeep is plainly a motor vehicle, even though it is equipped with special features to permit off-road operation. If a vehicle's greatest use will be off-road, but it will spend a substantial amount of time on-road, then NHTSA has interpreted the vehicle to be a "motor vehicle". Further, the agency has determined that a vehicle such as a dune buggy is a motor vehicle if it is readily usable on the public roads and is in fact used on the public roads by a substantial number of owners, regardless of the manufacturer's stated intent regarding the terrain on which the vehicle is to be operated.

Vehicles such as the Pinzgauer are not easily classified under either of these groupings. On the one hand, the Pinzgauer is obviously designed to have substantial off-road capabilities, as evidenced by high ground clearance, deep water fording capabilit ies, and all-wheel drive. According to its manufacturer, 95 percent of the annual production of Pinzgauers is purchased by armed forces worldwide. These factors suggest that the Pinzgauer should not be classified as a motor vehicle. On the other hand, the available information shows the Pinzgauer is suitable for use on-road. The vehicle has a top speed of nearly 70 miles per hour. Page 4 of Enclosure 1 of your letter shows that the Pinzgauer is equipped with turn signals and states that the power st eering minimizes steering effort "both in difficult terrain and when parking." Page 4 of Enclosure 3 with your letter describes the serviceability of the Pinzgauer "with ordinary on- and off-road usage." These factors suggest that the vehicle is design ed and intended to be routinely used on the public roads, which suggests that it should be classified as a motor vehicle.

In instances where the agency is asked whether something is a motor vehicle, when the vehicle has both on-road and off-road operating capabilities, and about which there is little or no evidence about the extent of the vehicle's on-road use, NHTSA has ap plied five factors to reach its conclusion. These factors are:

1. Whether States or foreign countries have permitted or are likely to permit the vehicle to be registered for on-road use.

2. Whether the vehicle is or will be advertised for use on-road as well as off-road, or whether it is or will be advertised exclusively for off-road use.

3. Whether the vehicle's manufacturer or dealers will assist vehicle purchasers in obtaining certificates of origin or title documents to register the vehicle for on-road use.

4. Whether the vehicle is or will be sold by dealers also selling vehicles that are classified as motor vehicles.

5. Whether the vehicle has or will have affixed to it a warning label stating that the vehicle is not intended for use on the public roads.

When NHTSA previously considered whether the Pinzgauer should be considered a motor vehicle, the available information regarding these factors showed that the manufacturer had equipped the vehicle with side marker lights, the manufacturer expected the ve hicle to be used on-road, and that it would be sold by dealers that also sell vehicles that are clearly motor vehicles.

In your letter, you enclosed some additional information and brochures from the manufacturer that show the manufacturer continues to expect Pinzgauers to be used both on- and off-road. Since the manufacturer does not now expect to sponsor the vehicle's sale in the U.S., no information is available on the anticipated dealers. The additional information enclosed with your letter did not specifically address any factors on

which no information was previously available to NHTSA. Hence, the agency has no basis for changing its previous conclusion that the Pinzgauer appears to be a motor vehicle.

You suggested three reasons that might lead the agency to reverse its previous conclusion. First, you suggested that the 6-wheeled version of the Pinzgauer has a unique body configuration which distinguishes it from typical, on-road vehicles and makes i t particularly well suited to off-road use. You correctly noted that the agency's 1982 letter addressed both the 4-wheeled and 6-wheeled version of the Pinzgauer. However, for the purposes of this analysis, there is no attribute of the 6-wheeled versio n that would lead the agency to conclude that it should be classified differently than the 4-wheeled version of the Pinzgauer. Many vehicles that are clearly motor vehicles have 6 wheels. In all other respects, the 4- and 6-wheeled Pinzgauers have simi lar on-road capabilities, including a top speed of more than 65 miles per hour.

Second, you suggested that NHTSA concluded that the Unimog is not a "motor vehicle" in a February 7, 1984 letter, and that the Unimog and Pinzgauer are comparable vehicles. In the February 7, 1984 letter to Mr. Karl-Heinz Faber to which you refer, NHTSA stated that it had no basis for changing its previous conclusion that the Unimog was not a "motor vehicle." NHTSA also noted that this conclusion was based upon the assumptions that Unimog vehicles would continue to be marketed through dealers of farm machinery and heavy equipment and that Unimog vehicles would have a label affixed stating that the Unimog is not manufactured for highway use. In other words, the information available for Unimog (especially regarding factors number 4 and 5 above) was s ufficient to lead the agency to conclude that it was not a motor vehicle, even though Unimogs are operationally capable of on-road use. By way of contrast, either no information is available for Pinzgauer vehicles regarding the five factors identified a bove or, if information is available for a factor, it suggests that the Pinzgauer should be treated as a motor vehicle. Since the Pinzgauer is operationally capable of on-road use, and there is no indication that the manufacturer does not intend for it to spend a substantial amount of time on-road, NHTSA reaffirms its previous statement that these vehicles appear to be "motor vehicles," within the meaning of the Safety Act.

Third, you suggested that NHTSA's 1982 conclusion did not include a consideration of the primary design intent of the Pinzgauer for military purposes and the high percentage of its total sales to the military. NHTSA's 1982 conclusion and this reconsidera tion both are addressed only to the non-military versions of the Pinzgauer. The military versions of the Pinzgauer would not be subject to the safety standards if their sales satisfied 49 CFR S571.7(c). In both the 1982 and this examination of whether the non-military versions of the Pinzgauer are motor vehicles, the agency fully considered the substantial off-road capabilities of these vehicles. However, absent indications that the manufacturer does not intend the Pinzgauer to spend substantial peri ods of time on-road, NHTSA concluded in 1982, and reaffirms at this time, that the non-military versions of the Pinzgauer appear to be "motor vehicles" within the meaning of the Safety Act.

I hope this information is useful. If you have any further questions or

need some additional information on this topic, please feel free to contact Steve Kratzke of my staff at this address or by telephone at (202) 366-2992.

ID: nht90-4.85

TYPE: Interpretation-NHTSA

DATE: December 14, 1990

FROM: William J. Bethurum -- Patent Attorney

TO: Legal Counsel, U.S. National Highway Safety Commission

TITLE: None

ATTACHMT: Attached to letter dated 2-26-91 from Paul Jackson Rice to William J. Bethurum (A37; Std. 108)

TEXT:

My client, Mr. E. D. Farnsworth of Sweet, Idaho has asked me to write to you concerning the matter of when and how side lights adjacent to the main head lights came to be first used with head lights on automobiles. Mr. Farnsworth has made several new an d useful improvements in the field of automobile head lights and associated side lights, and he has recently filed a United States Patent application for one of his inventions in this field.

However, Mr. Farnsworth submitted one of his earlier ideas in this field to an invention promotion firm on the East Coast under an agreement of confidentiality, and Mr. Farnsworth feels that perhaps this agreement may have been breached in view of the ma ny new side light designs that he has recently seen in national magazines.

In the event we decide to approach prospective licensees about the licensing of our pending patent application, will you please advise us of what assistance your office can give us in the area of transportation regulations which may govern the applicatio n of new head lamp designs for automobiles or other motor driven vehicles.

Any information you may have in this regard will be most appreciated.

ID: nht90-4.86

TYPE: Interpretation-NHTSA

DATE: December 14, 1990

FROM: John M. Marcum -- Chairman and CEO, Electric Vehicles, S.A.

TO: Administrator -- NHTSA

TITLE: None

ATTACHMT: Attached to letter dated 4-1-91 from John Marcum to NHTSA Administrator; Also attached to letter dated 4-22-91 from Paul Jackson Rice to John Marcum (A37; VSA Sec. 108(2); Part 591)

TEXT:

Electric Vehicles, S.A. of 1776 I Street, N.W., Suite 850, Washington, D.C. 20006, is applying for a temporary exemption from the Federal Motor Vehicle Safety Standards for the EVSA prototype electric minibus. The firm is incorporated in Geneva, Switzer land and manufactures both electric minibuses and delivery trucks. EVSA has built its first two 16 passenger electric minibus prototypes (13,700 GVWR). They are currently being tested and evaluated in Allentown, Pennsylvania and Hong Kong. Through this testing program, EVSA plans to improve the performance and establish conformity to FMVSS requirements of our production vehicles. However, meeting all of these standards for our prototype would impair the development and field evaluation of this electri c vehicle. The 16 passenger minibus is powered with a Chloride 55 kw traction motor and carries 128 two volt batteries in four battery packs placed on top of the chassis and in sealed compartments under the passenger seats on either side of the the vehi cle. The batteries are accessible through fiberglass doors that run the length of the vehicle on either side. The minibus is a hybrid vehicle in that it is equipped with an optional 7 kw gasoline powered generator or range enhancer which is in a compar tment at the rear of the bus.

If this exemption is granted it will allow the vehicle to be used in a "free" test and evaluation passenger service operated in Allentown in the downtown shopping area. The bus will operate on a 1.7 mile loop that averages 20 stops per loop and where th e average speed is less than 10 mph. EVSA requests that this exemption be for a period of three months. During this time the minibus would be operated on the downtown loop by the Lehigh and Northhampton Transportation Authority (LANTA) as part of a join t test and evaluation program between EVSA, LANTA, the Pennsylvania Energy Office, Pennsylvania Power and Light Co. and others.

The prototype vehicle in Allentown differs in several respects from the FMVSS requirements. The first is that due to the use of thick "show type" fiberglass it is overweight. The vehicle unloaded is approximately 13,200 lbs. This means that when fully loaded to the 16 passenger (17 persons including the driver) capacity it will be about 2,000 lbs. or 15 percent over the GVWR of the chassis.

This vehicle also does not meet fully the requirement for emergency exits. It does not have a roof top emergency exit or the required one exit per three seating positions. However, it does have one side emergency door near the rear on the opposite side from the main entry door which does provide the total emergency exit requirement of 1139 square inches.

EVSA believes this should provide adequate egress in the event of an emergency in this limited operating mode.

The vehicle also fails to meet the standards in other areas including windshield washer, seat belt warning light and so on. These are in the process of being added to the vehicle during the test program. The chassis has passed its brake tests under ful l load at the Bendix proving ground and additional tests of the integrated vehicle are being carried out at the Mack Truck test track in Allentown.

The minibus has already demonstrated the capacity to carry 20 or more persons safely at its first showings in exhibitions in Athens, Greece and Houston, Texas. Moreover the front wheel drive heavy duty rail type chassis is conservatively rated and the m inibus will be driven at very low speeds on flat ground under passenger loads ranging from within the GVWR up to a maximum overload of 15 percent. Consequently, EVSA and its partners in the Allentown project do not believe there is any appreciable risk to the public resulting from the non-conforming aspects of this prototype vehicle. Operating this minibus in the downtown area during this experimental program would allow EVSA and LANTA to acquire valuable data for the designing and fabrication of futu re electric vehicles that would meet all of the applicable standards and would help fulfill the objective of the Alternative Fuels Vehicle Program of UMTA.

ID: nht90-4.87

TYPE: Interpretation-NHTSA

DATE: December 17, 1990

FROM: Paul Jackson Rice -- Chief Counsel, NHTSA

TO: M. Iwase -- General Manager, Technical Administration Department, Koito Manufacturing Company

TITLE: None

ATTACHMT: Attached to letter dated 11-13-90 to Paul Jackson Rice from M. Iwase

TEXT:

This is in reply to your letter of November 13, 1990, with respect to photometric measurement procedures for a L.E.D. center high-mounted stop lamp (CHMSL).

According to your letter, "photometric output of L.E.D. lighting device decreases as the time passes after activation, as shown in Figure 1." Your Figure 1 demonstrates that L.E.D.s at five minutes have a relative photometric output of slightly more than 70 percent of the output when the lamp is activated. After 20 minutes, it would appear to be only slightly more than 60 percent of initial output. You have asked at what time after activation of the CHMSL its photometrics are to be measured; in your opinion, five minutes is a reasonable time. You support your opinion with three arguments, which I will not summarize here since they are not relevant to my response.

Standard No. 108 does not specify when the CHMSL photometric test is to occur. Neither SAE Recommended Practice J186a, Supplemental High Mounted Stop and Rear Turn Signal Lamps, January 1977, the applicable standard that is incorporated by reference, nor any other section of Standard No. 108, requires the photometric test to be conducted at any particular time. The standard does require that CHMSLs and other lamps be designed to conform to its requirements; therefore, we expect the CHMSL to meet the minimum photometric specifications at whatever point in time it is tested after its activation. If Koito wishes to test at five minutes after activation, it may do so.

The purpose of the CHMSL is to reduce the frequency and severity of rear end collisions. Thus, its initial activation is the one that is most critical to highway safety. Although the short survey of continuous brake application times that Koito conducted, and which is referenced in your letter, showed one continuous brake application that exceeded four minutes, at such a period in time the warning message of the light would have been long delivered to the driver following. Thus, the fact that the L.E.D. diminishes over a continuous period of time would not appear to affect its purpose, as long as the CHMSL conforms to the minimum photometric requirements upon each application of the brake pedal, no matter how long the previous brake application and no matter how short the interval between brake applications.

I hope that this answers your question.

ID: nht90-4.88

TYPE: Interpretation-NHTSA

DATE: December 18, 1990

FROM: Paul Jackson Rice -- Chief Counsel, NHTSA

TO: Mary Rees -- D.C. (USA) Inc.

TITLE: None

ATTACHMT: Attached to letter dated 10-9-90 to NHTSA from Mary Rees (OCC 5362; FMVSS 207)

TEXT:

This responds to your letter of October 9, 1990. In your letter you ask the following questions concerning testing and certification.

(1) If a manufacturer has developed an item that he feels does meet all federal safety regulations, and it is ready to be tested, how would he get it tested? Are there any forms to be filed?

First, please be aware that the United States does not have an approval process. In the United States, a manufacturer of motor vehicles or motor vehicle equipment must certify that its products will comply with all applicable safety standards. Each of this agency's safety standards specifies the test conditions and procedures that this agency will use to evaluate the performance of the vehicle or equipment being tested for compliance with the particular safety standard. The National Highway Traffic S afety Administration (NHTSA) precisely follows each of the specified test procedures and conditions when conducting its compliance testing. 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 evaluating its products to determine whether the vehicle or item of equipment complies with the requirements of the safety standards, provided, however , 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 56 7.

If the agency testing shows 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 evaluation (through actual testing, comput er 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. While an element of "due care" could be the u se of appropriate testing laboratories, there is no explicit requirement that testing laboratories meet specific standards. In addition, NHTSA does not approve independent testing facilities, nor will it recommend any particular testing center be utiliz ed.

Finally, manufacturers are not required to file any forms beyond the requirements of 49 CFR Part 566. This regulation requires a

manufacturer to submit its name, address, and a brief description of the items of equipment it manufactures, there is no requirement to submit test data or any other forms to support certification. However, manufacturers would be well advised to retain such data as evidence of their due care in certifying compliance with the safety standards.

(2) We propose to manufacture an automobile seat frame. Since this is only a component of the actual seat, does the firm who puts together the finished seat apply for approval and testing?

As explained previously, neither you nor the firm who puts together the finished seat has to apply for approval and testing. However, your question indicates some confusion regarding the party who is responsible for certifying that the seat complies wit h federal standards. The answer will vary depending upon the situation in which the seat is installed in a vehicle.

Standard No. 207, Seating Systems, is considered a vehicle standard, because it applies only to new vehicles. Therefore, if a seat which incorporates your seat frame is installed in a vehicle during manufacture, the vehicle manufacturer is responsible f or certifying that the completed vehicle complies with all applicable standards, including Standard No. 207. If the seat is added to a new, previously certified, motor vehicle prior to its first sale, the person who modifies the vehicle would be an alte rer. An alterer is required to certify that, as altered, the vehicle continues to comply with all of the safety standards affected by the alteration.

Finally, if the seat is sold as aftermarket equipment to be installed in a used motor vehicle, the seat, as a piece of equipment, does not have to comply with any federal standards. However, S108(a)(2)(A) of the Vehicle Safety Act provides, in pertinent part:

No manufacturer, distributor, dealer, or motor vehicle repair business shall knowingly render inoperative, in whole or part, any device or element of design installed on or in a motor vehicle or item of motor vehicle equipment in comp liance with an applicable Federal motor vehicle safety standard...

Therefore, none of these entities could install a seat containing your seat frame if it caused the vehicle to no longer comply with standard No. 207 or any other standard.

In all of these situations, you, as the manufacturer of the seat frame, have no certification requirements. However, the manufacturer of the seat or the vehicle it is to be installed in will probably require information from you in order to make the nec essary certification.

I hope you find this information helpful. If you have further questions, please contact Mary Versailles of my staff at this address or by telephone at (202) 366-2992.

ID: nht90-4.89

TYPE: Interpretation-NHTSA

DATE: December 21, 1990

FROM: Carol Zeitlow -- Manager, Engineering Services, Oshkosh Truck Corporation

TO: Taylor Vincon -- Legal Counsel, NHTSA

TITLE: None

ATTACHMT: Attached to letter dated 1-16-91 from Paul J. Rice to Carol Zeitlow (A37; Std. 101; Std. 104; Std. 108; Std. 201

TEXT:

As you may recall, I spoke with you on the phone regarding the following subjects. You had suggested I write you with my questions.

1. In my August 1st letter I asked the question, "When a hazard warning light (four-way flasher) and a rear stop light are together on a vehicle, which should be the over-riding feature?". Your reply of August 27, 1990 stated that the hazard light shoul d always be over-riding. You also stated that you thought the regulations had previously stated either option was acceptable. If this is the case, when did the regulation change and in which section of the regulations can I find the ruling? Possibly, w e have had a misunderstanding since we have noticed that passenger cars are not all designed in this way. Your comments will be appreciated.

Additional questions I asked during an Oct. 9th phone conversation:

2. Question: Is a sun visor was required by FMVSS. Your answer was no.

3. Question: Are there any regulations regarding the type, or quantity of horns required on a vehicle? The answer you gave was no, only a horn was required.

4. Question: According to CFR 49, Section 571.104, there are no regulations regarding the percentage of area of the windshield that the windshield wiper must wipe, only the frequency of the wipers is egulated? You agreed.

Will you please confirm these answers in writing? Thank you.

ID: nht90-4.9

TYPE: Interpretation-NHTSA

DATE: September 17, 1990

FROM: Paul Jackson Rice -- Chief Counsel, NHTSA

TO: Gerald F. Vinci -- Sun Refining and Marketing Company

TITLE: None

ATTACHMT: Attached to letter dated 8-17-79 from F. Berndt (Signature by S.P. Wood); Also attached to letter dated 8-14-90 from G.F. Vinci to P.J. Rice (OCC 5121)

TEXT:

This responds to your August 14, 1990 letter and telephone calls about your plans to convert the fuel system on a vehicle from gasoline to propane. You said your company ("Sun Refining") would like to purchase a new vehicle and convert it for purposes o f your own research, and will not be reselling the vehicle. You ask about the requirements that would apply to the conversion.

We do not have any requirements that would apply to the conversion if the conversion is made by Sun itself. The National Traffic and Motor Vehicle Safety Act and NHTSA's regulations generally do not apply to a vehicle after the vehicle is sold to a cons umer (e.g., Sun) for purposes other than resale. Although the Act prohibits certain entities from tampering with or removing federally required safety features, the prohibition does not apply to modifications by a vehicle owner to his or her own vehicle .

However, in the event you have the conversion done by a party other than your company, Federal law may apply. Section 108(a)(2)(A) of the Safety Act prohibits vehicle manufacturers, distributors, dealers and repair businesses from knowingly rendering in operative federally required safety features when modifying a vehicle. I have enclosed an information sheet that discusses the application of S108(a)(2)(A) to fuel system conversions.

NHTSA wishes to learn more about the safety of propane fuel systems and is considering a public announcement seeking information on various safety issues. We would, therefore, be interested in the results of your research when they're completed.

Even though your conversion would not be covered by the FMVSS's, we suggest you consult State law to see if the State has requirements for propane vehicles. In addition, other Federal agencies may have regulations for your vehicle. If your vehicle woul d be a commercial vehicle, the regulations of the Federal Highway Administration (FHWA) may apply. I have forwarded a copy of your letter to FHWA for their reply. You might also contact the Environmental Protection Agency (EPA) for information about the conversion. EPA's general telephone number is (202) 382-2090.

I hope this information is helpful. Please contact us if you have further questions.

ID: nht90-4.90

TYPE: Interpretation-NHTSA

DATE: December 21, 1990

FROM: Paul Jackson Rice -- Chief Counsel, NHTSA

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

TITLE: None

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

TEXT:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

ID: nht90-4.91

TYPE: Interpretation-NHTSA

DATE: December 24, 1990

FROM: Paul Jackson Rice -- Chief Counsel, NHTSA

TO: Fred Ciampi -- Fred's Welding Service

TITLE: None

ATTACHMT: Attached to letter dated 10-17-90 from F. Ciampi to Office of the Chief Counsel, NHTSA (OCC 5342)

TEXT:

This responds to your letter requesting information concerning Federal requirements governing the manufacture of utility trailers. Your letter indicated that you plan to manufacture trailers.

First, please be aware that the National Highway Traffic Safety Administration (NHTSA) has authority to issue safety standards applicable to new motor vehicles and certain items of motor vehicle equipment. For purposes of this authority, trailers are co nsidered motor vehicles. NHTSA does not approve motor vehicles or equipment, nor does the agency endorse any commercial products. Instead, the National Traffic and Motor Vehicle Safety Act establishes a certification process under which each manufacture r must certify that its product meets agency safety standards, or other applicable standards. Periodically, NHTSA tests whether vehicles or equipment comply with these standards, and may investigate alleged safety-related product defects.

The following Federal safety standards apply to trailers: Safety Standard No. 108, Lamps, Reflective Devices and Associated Equipment, Safety Standard No. 115, Vehicle identification Number--Basic Requirements, and Safety Standard No. 119, New Pneumatic Tires for Vehicles Other Than Passenger Cars. The content requirements for the vehicle identification number are found at 49 CFR Part 565. In addition, depending on the type of braking system used, trailers must meet Safety Standard No. 106, Brake Hos es, Safety Standard No. 116, Motor Vehicle Brake Fluids, and Safety Standard No. 121, Air Brake Systems. All of these standards are found in 49 CFR Part 571.

In addition, as a manufacturer of motor vehicles, you would be required to submit identification information to this agency in accordance with 49 CFR Part 566, Manufacturer Identification. You would also be required to certify that each trailer complies with all applicable Federal safety standards. This certification procedure is set out in 49 CFR Part 567.

You may find a copy of 49 CFR at a Federal Depository Library in your State. If you so choose, you may purchase a copy of Title 49 from the United States Government Printing Office (GPO), Washington, D.C. 20402, (202) 783-3238. With respect to laws gov erning trailer manufacture, the principal statute is the National Traffic and Motor Vehicle Safety Act. You may obtain a copy of this Act from GPO. You may wish to note especially S151 of the Act, which requires a manufacturer of a motor vehicle or moto r vehicle equipment to conduct notice and recall campaigns if you or this agency find that your product has a safety-related defect.

There may be State regulations that apply to trailer manufacture and use. In many states, a person cannot register a new vehicle unless he or she has a statement or certificate of origin. I understand that the Recreation Vehicle Industry Association wil l supply a small quantity of form statements or certificates upon request. You may contact that organization by writing them at 1896 Preston White Drive, Reston, VA 22090; or calling (800) 336-0154. You may wish to contact the local Department of Trans portation or Motor Vehicle Administration in the states for which you have an interest for further information on state requirements.

I hope you find this information helpful. Please do not hesitate to contact this office at (202) 366-2992 if you have specific questions.

ID: nht90-4.92

TYPE: Interpretation-NHTSA

DATE: December 24, 1990

FROM: Paul Jackson Rice -- Chief Counsel, NHTSA

TO: Gordon Bonvallet

TITLE: None

ATTACHMT: Attached to letter dated 10-5-90 from Gordon Bonvallet to Paul Jackson Rice (OCC 5282)

TEXT:

This is in reply to your letter of October 5, 1990, with respect to a prospective headlighting system. It is contemplated that the lower beam on the system would be furnished by a gaseous discharge headlamp, an "integral beam" headlamp under Standard No . 108. The upper beam would be furnished by a replaceable bulb headlamp using an HB3 light source.

You comment that a combination system such as this is not specifically addressed by Standard No. 108, and you ask for confirmation of your opinion that the photometric requirements of Figure 15 would apply to both the upper and lower beam headlamps.

At the present time, such a hybrid headlighting system is impermissible under Standard No. 108. The standard establishes separate requirements for integral beam headlighting systems (S7.4), and for replaceable bulb headlighting systems (S7.5). Though " integral beam headlighting system" is not specifically defined by Standard No. 108, such a system would appear to be one that consists of integral beam headlamps. Standard No. 108 does define "integral beam headlamp", and that definition specifically ex cludes "a replaceable bulb headlamp" such as one containing an HB3 light source. Similarly, a "replaceable bulb headlamp system" is one that consists solely of headlamps containing HB1, HB2, HB3, HB4, or HB5 light sources.

It is true that Figure 15 is one of three lower beam photometric options that apply to an integral beam headlamp, such as one producing illumination through gaseous discharge. However, under the language of the standard, Figure 15 applies when the lamp is used in a four headlamp integral beam headlighting system (S7.4(a)(1)(i)). It is also true that the upper beam photometrics of Figure 15 apply to an HB3 replaceable bulb headlamp (S7.5(e)(3)(ii)), but only when used in a four lamp headlighting system in which each headlamp contains a single replaceable light source.

As you know, the policy of this agency for the last decade has been to reduce design restrictions on headlighting systems. Removal of the implicit prohibition against hybrid headlighting systems would be a further step in this direction. If your client is seriously considering such a system, it may submit a petition for rulemaking at the appropriate time.