ID: 17442.wkm

Mr. Gerard Koudijs
Vredestein Tyres Asia
c/o Elang-Desa Sukahati
Citeureup
Bogor 16810
Indonesia

Dear Mr. Koudijs:

Please pardon the delay in responding to your letter faxed to Walter Myers of my staff. You ask three questions which are discussed below.

You state that P. T. Elangperdana Tyre Industry (PTE) will produce tires under the trade name Epco and will apply for a DOT identification. Your first question asks whether that company would be required to apply again for a DOT identification if it produced tires for a private brand that it does not own. The answer is no.

I assume that your mention of a "DOT identification" refers to the manufacturer identification mark (MIM) issued by this agency as required by 49 Code of Federal Regulations (CFR) 574.6. Subsection 574.5 requires each new tire sold in the United States to have a tire identification number (TIN) labeled by the tire manufacturer on one sidewall of the tire. The MIM is the first grouping of the TIN (see subsection 574.5(a)). This TIN is intended to assist the agency in identifying the production source of a tire in the event of a noncompliance or defect. This agency issues a separate MIM for each plant that currently produces tires, but a plant can only have one MIM, whether or not the plant produces other tire brands. Further, the MIM remains in effect as long as the plant to which it applies remains in production. Therefore, once a MIM is assigned to the PTE plant, the plant may not be issued another MIM even if PTE produces tires for a different brand name owner. A different brand name owner, however, would be required to have its own TIN. Finally, the MIM assigned to the PTE plant cannot be reassigned to another plant, even if a second plant replaces the first.

With reference to designation of a resident agent, your second question asks if we could provide you copies of "section 110a and 1399a (west 1982)" that was referred to in some material Mr. Myers sent you in October 1997. Those two sections are the same, and refer to section 110(a) of the National Traffic and Motor Vehicle Safety Act of 1966, which was originally codified in Title 15, U.S. Code, section 1399(a). That provision has been recodified and is now found in Title 49, U.S. Code, section 30164, a copy of which is enclosed.

Your third question asks whether the designated agent could be a lawyer and the commercial affairs of the company handled through a trading company. Title 49, CFR, subsection 551.45 (copy enclosed), provides that a manufacturer offering to import a motor vehicle or motor vehicle equipment into the United States must designate "a permanent resident of the United States" as the importer's agent:

[U]pon whom service of all processes, notices, orders, decisions, and requirements may be made for him and on his behalf as provided in section 110(e) of the National Traffic and Motor Vehicle Safety Act of 1966 (80 Stat. 718) (NOTE: as stated above, this section is now 49 U.S. Code, 30164). The agent may be an individual, a firm, or a domestic corporation. Any number of manufacturers may designate the same person as agent.

We read your question as asking whether PTE can have more than one resident agent, one to receive service of legal process and the other to conduct PTE's commercial business. The agent can be a lawyer (many are), but subsection 551.45 does not require that the agent be a lawyer. As quoted above, the agent can be an individual, firm, or domestic corporation. Thus, a U.S. trading company or any other U.S. firm or corporation can act as the resident agent. Although Part 551.45 does not prohibit designation of more than one agent or the designation of different agents for specific purposes, that is not recommended since it could cause confusion and cause your representatives to miss notifications or response dates. On the other hand, one agent can have many duties, including receiving service of legal process, marketing, distribution, and all other company activities in the United States.

I hope this information is helpful to you. Should you have any further questions of need additional information, feel free to contact Mr. Myers at this address or at (202) 366-2992, fax (202) 366-3820.

Sincerely,
Frank Seales, Jr.
Chief Counsel
Enclosures
Ref:551#574

ID: 17450.nhf

Mr. Joseph Giletto
Northeastern Equipment
150 Brentwood Drive
Mount Laurel, NJ 08054

Dear Mr. Giletto:

This responds to your inquiry about whether several pieces of construction equipment you intend to import from Italy are motor vehicles that must comply with the Federal motor vehicle safety standards. Specifically, you intend to import minitransporters, dumpers, selfloading truck mixers, and concrete mixers. You state that the equipment operates on public roads in exceptional circumstances only and is transported by a trailer when moved over public highways. On the basis of the information you provided in your letter and the brochures you enclosed , it appears that the pieces of construction equipment are not motor vehicles. Since you would not be importing motor vehicles, you would not be required to comply with the Federal motor vehicle safety standards.

By way of background information, the National Highway Traffic Safety Administration (NHTSA) issues and enforces the Federal motor vehicle safety standards. NHTSA's statute defines the term "motor vehicle" as follows:

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

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

Based on the information you provided in your letter and the brochures you enclosed, it appears that the various pieces of construction equipment you intend to import are not "motor vehicles" within the meaning of the statutory definition. This conclusion is based on the statements in your letter that the construction equipment is loaded onto a trailer when moved between job sites and will be operated at the work-site area only. It is also based on the statement that the equipment will be on the road only when operated at the work-site. Thus, the agency would consider the use of the construction equipment on the public roads to be merely incidental. Since these types of construction equipment are not motor vehicles, they would not be required to comply with the Federal motor vehicle safety standards. If NHTSA were to receive additional information indicating that the construction equipment uses the public roads on more than an incidental basis, the agency would reassess this interpretation.

If you have further questions regarding NHTSA's safety standards, please contact Nicole Fradette of my staff at this address or by telephone at (202) 366-2992.

Sincerely,
Frank Seales, Jr.
Chief Counsel
ref:VSA
d.6/2/98

ID: 17460.ztv

Mr. John W. Cook
Dir. Materials Mgmt/Product Development
Pace American, Inc.
11550 Harter Drive
Middlebury, IN 46540

Dear Mr. Cook:

This is in reply to your letter of March 5, 1998, asking for a "waiver" from a requirement of Federal Motor Vehicle Safety Standard No. 108.

Pace American manufactures cargo trailers. You would like "to delete the rear clearance light and to cover the requirement as a combination light with the tail light location." You realize that "rear clearance lamps may not be combined with tail lights," but you foresee a "confusing 'stacked' lighting scenario" with your intended location for rear taillamps.

We cannot grant a waiver on the basis of a letter. The procedures to be followed in obtaining temporary exemptions from a Federal motor vehicle safety standard are contained in 49 C.F.R. Part 555, which affords four bases on which a manufacturer may apply for an exemption. We do not view any of these bases as affording a justification for granting an exemption from the prohibition of S5.4 of Federal Motor Vehicle Safety Standard No. 108 against optically combining clearance lamps and taillamps. We have studied the materials you sent. The clearance lamps, mounted on the rear fender, are consistent with the requirements of Standard No. 108 that they be located to indicate the overall width of the vehicle and as high as practicable. We fail to understand why you feel the placement of the clearance lamp in relation to the taillamp would create confusion.

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

Sincerely,
John Womack
Acting Chief Counsel
ref:108
d.5/22/98

ID: 17464.ztv

Ms Sandra L. Sizemore
Vice President
4 Sands Industries, Inc.
11406 Reading Road
Cincinnati, OH 45241

Dear Ms Sizemore:

This is in reply to your letter of March 18, 1998, regarding a lamp you are considering manufacturing.

We understand from a conversation that Taylor Vinson of this Office had with your husband on April 16, 1998, that the lamp is intended to illuminate in a steady-burning fashion when the brake pedal is applied, and that it will be red in color. The lamp will fit in a spoiler or wing installed on the back of a car. As you note, aftermarket companies have been installing these in spoilers for some time, and we understand from your husband that aftermarket sales are intended both to new car dealers and to parts supplies stores. You believe that "this light may not need to be D.O.T. approved based on the intended application, however our customer requires that the light be D.O.T. approved."

The Department has no authority to "approve" or "disapprove" items of equipment, nor are there any "D.O.T. licensing requirements," the subject of three of your questions. We do advise whether supplementary lighting equipment such as your lamp appears permitted or prohibited by the Federal motor vehicle safety standard on lighting, Standard No. 108 Lamps, Reflective Devices and Associated Equipment.

I enclose a copy of a letter to Timothy McQuiston, dated January 28, 1994, which discusses the relationship to Federal laws of aftermarket spoilers incorporating stop lamps. If you or your husband have any questions, you may call Taylor Vinson (202-366-5263). As he explained, the direct obligations under Federal law fall upon those persons who install the spoiler-lamp, rather than on those who manufacture or sell it. Nevertheless, your company can help the installer fulfill his obligation by ensuring that the lamp in the spoiler complies with Standard No. 108, principally in ensuring that it has a minimum lens area of 4 1/2 square inches and meets the appropriate photometrics.

In addition to the letter to Mr. McQuiston, we are also enclosing a copy of the sections of Standard No. 108 that apply to lamps in spoilers that serve as the required center highmounted stop lamp. These are paragraph S5.1.1.27 and Figure 10.

Sincerely,
John Womack
Acting Chief Counsel
ref:108
d.5/13/98

ID: 17490.ztv

Tadashi Suzuki, Manager
Automotive Equipment
Legal & Homologation Sect.
Stanley Electric Co., Ltd.
2-9-13, Nakameguro, Meguro-ku
Tokyo 153,
Japan

Re: Vehicle Headlamp Aiming Device

Dear Mr. Suzuki:

This is in response to your letter of March 6, 1998, asking for confirmation of the acceptability of Stanley's aiming adjustment mechanism under Standard No. 108.

This mechanism is intended for headlamps that will be used on vehicles manufactured on and after September 1, 1998. On all such vehicles, each headlamp equipped with a vehicle headlamp aiming device (VHAD) must be manufactured with its calibration permanently fixed by its manufacturer (S7.8.5.2(c)).

The Stanley headlighting system consists of two headlamps, each equipped with two single-filament light sources. The headlamp is designed to be visually/optically aimable. Reflectors for both bulbs are integrally molded so that one aiming mechanism is sufficient to aim both the lower and upper beams. The headlamp system will be installed on a vehicle with an automatic leveling system which has a range of vertical movement of +/-2.5 degrees.

The headlamps in question that are intended for use on vehicles manufactured before September 1, 1998, are equipped with two aiming bolts to facilitate manual aiming. Bolt A is used for horizontal aiming. Both Bolts A and B are used for vertical aiming. From the drawings on Attachment 2 to your letter, it is evident that any independent movement of Bolt B also affects horizontal aim because it causes rotation around an axis that is other than horizontal. You have informed us that, with respect to vehicles manufactured on and after September 1, 1998, Stanley intends to provide headlamps that comply with S7.8.5.2(c) either by removing the VHAD from Bolt A or by permanently fixing its calibration (Stanley has not yet made its choice). With either choice, "the range of vertical adjustment by bolt B with less than 0.76 degree horizontal aim deviation is +/- 1 degree." You explain that "the automatic leveling system supplements the manual aiming system and covers the maximum variation of vehicle pitch, which depends on loading and the actual movement during driving and may exceed +/- 1 degree." We want to point out that if only Bolt B is used to adjust the lamp vertically by more than 1 degree, horizontal misaim will exceed 0.76 degree. This will result in a noncompliance, unless, pursuant to S7.8.5.2(b)(3), an advisory label is placed adjacent to the mechanism and instructions to be inserted in the vehicle operator's manual indicating that both Bolts A and B must be used to adjust vertical aim.

Alternatively, Stanley could retain the horizontal VHAD function and permanently fix its calibration. Paragraph S7.8.5.3(b) states that "there shall be no adjustment of horizontal aim unless the headlamp is equipped with a horizontal VHAD." Since the movement of either Bolt A or Bolt B affects the horizontal aim, it is not possible to use the fixed horizontal aim approach of S7.8.5.3(b) while allowing independent movements of Bolts A and B for vertical aim. Therefore, use of this alternative would require the addition of a second VHAD. In Stanley's design, finding the factory setting for horizontal aim depends on the relationship between the settings of two adjustment bolts rather than, as in the usual design, the absolute position of a single independent adjustment bolt. It would be necessary to equip both bolts with horizontal VHAD indicators with a fixed calibration so that the factory horizontal aim could be restored during the process of vertical aim adjustment. For example, having the VHAD indicators of each bolt read the same number could indicate the proper relationship for factory horizontal aim. We believe that this interpretation is consistent with the interpretation provided you on this subject by Transport Canada.

Sincerely,
Frank Seales, Jr.
Chief Counsel
ref:108
d.6/30/98

ID: 17491.ztv

Robert B. Nicholas, Esq.
McDermott, Will & Emery
600 13th Street, N.W.
Washington, DC 20005-3096

Dear Mr. Nicholas:

This is in reply to your letter of March 6, 1998, asking for confirmation of your interpretation that an electric-powered scooter, manufactured by your client EMPower Corporation, is not a "motor vehicle" within the meaning of 49 U.S.C. 30102(a)(6).

You have described the scooter as a three-wheeled vehicle with a maximum speed of 15 miles per hour. It has "a platform, no seat and is designed to be driven standing up. The scooter's steering mechanism, composed of handlebars, steering column, fork and wheel, is collapsible and folds toward the platform for easy storage and portability."

You have cited interpretations of the agency in which other, similar vehicles were held not to be "motor vehicles." These exempted vehicles feature lack of a seat and the ability to be folded to be portable (see letters of June 12, 1995, to Andrew Grubb, re "California Go-Ped," letter of October 5, 1993, to Bernhard Peer, re "TWIP" electric scooter; and letter of April 1, 1991, to Mark. A Pacheco re "Walk Machine").

We concur with your conclusion that these interpretations are relevant to the EMPower electric scooter, as you have described it, and that, accordingly, the EMPower electric scooter is not a "motor vehicle" under 49 U.S.C. 30102(a)(6).

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

Sincerely,
John Womack
Acting Chief Counsel
ref:VSA
d.5/22/98

ID: 17494.ztv

Mr. Keith Reichow
26409 148th Ave. S.E.
Kent, WA 98042-8142

Dear Mr. Reichow:

This is in reply to your letter of March 5, 1998, with respect to your planned importation of an automobile body. You have asked for a "letter that can be presented to U.S. Customs that would assist in clearing this hardware."

We are pleased to provide an interpretation to you. You intend to import "the frame with axles and suspension attached." In addition, "the aluminum body skin and fenders would be in place and the dashboard would be equipped with some instruments. The radiator, brake, clutch and gas pedals would also be mounted."

None of the Federal motor vehicle safety standards apply to any of these items of equipment. Accordingly, it is permissible for you to import the body by completing the box titled "Description Of Merchandise If Motor Vehicle Equipment" on the HS-7 Declaration Form which you may be required to execute, and, under it, checking Box 1 which states in pertinent part that "the equipment item was manufactured on a date when no applicable Federal Motor Vehicle Safety or Theft Prevention Standard was in effect." You may attach a copy of this letter to the form to facilitate entry.

Even though the assembled vehicle will be a replica of an early 1960s Lotus 7, it must comply upon manufacture with all Federal motor vehicle safety standards of 49 CFR Part 571 that apply to passenger cars manufactured in 1998, even if they are not necessarily compatible with a 35-year old design. The vehicle would have to meet the bumper standard as well (49 CFR Part 581).

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

Sincerely,
John Womack
Acting Chief Counsel
ref:591
d.5/22/98

ID: 17495.drn

Ms. Leigh Morrison
Project Engineer
Irvin Automotive
2500 Takata Drive
Auburn Hills, MI 48326

Dear Ms. Morrison:

This responds to your letter asking whether any Federal motor vehicle safety standards (FMVSSs) apply to vanity mirrors in motor vehicle sun visors. In a telephone conversation with Dorothy Nakama of my staff, you explained that Irvin Automotive places vanity mirrors into sun visors, and sells the assemblage to motor vehicle manufacturers that then install the visors into motor vehicles.

Some background information may be helpful. The National Highway Traffic Safety Administration (NHTSA) is authorized to issue FMVSSs for new motor vehicles and new items of motor vehicle equipment. Unlike the practice in many countries, NHTSA does not provide approvals of motor vehicles or motor vehicle equipment. Instead, manufacturers are required to certify that their vehicles and equipment meet applicable standards.

Standard No. 201, Occupant Protection in Interior Impact, applies to "passenger cars and to multipurpose passenger vehicles, trucks, and buses with a GVWR of 4,536 kilograms or less." In an interpretation letter of July 3, 1997 to Daewoo Motor Company (copy enclosed), the agency stated that Daewoo's vanity mirror must be installed in a fashion that assures that the sun visor meets Standard No. 201. The letter to Daewoo referred to a provision, S3.4.2, that applied to sun visors. Effective May 8, 1997, that provision is S5.4.2, and states:

Each sun visor mounting shall present no rigid material edge radius of less than 3.2 mm that is statically contactable by a spherical 165 mm diameter head form.

The letter to Daewoo also stated that Daewoo's vanity mirror would not have to meet Standard No. 205, Glazing Materials.

You ask whether Standard No. 107, Reflecting Surfaces, applies to vanity mirrors. The answer is no. Effective May 6, 1996, NHTSA rescinded Standard No. 107. Even when it was in effect, Standard No. 107 did not apply to vanity mirrors.

NHTSA has established Standard No. 111, Rearview Mirrors. In an interpretation letter dated October 21, 1971 to Mr. James V. Blethen (copy enclosed), NHTSA stated that Standard No. 111 "does not apply to mirrors per se but specifies requirements that must be met by rearview mirrors mounted in new passenger cars and multipurpose passenger vehicles." Since your vanity mirrors in sun visors are presumably not meant to be used as rearview mirrors, Standard No. 111 would not apply to your product.

NHTSA's statute also addresses defects that are related to motor vehicle safety. If a manufacturer or NHTSA determines that a safety-related defect exists, the manufacturer must notify purchasers of its product and remedy the problem free of charge. (This responsibility is borne by the vehicle manufacturer in cases in which your sun visors are installed on a new vehicle by or with the express authorization of that vehicle manufacturer.) Any manufacturer which fails to provide timely notification of or remedy for a defect may be subject to a civil penalty of up to $1,100 per violation.

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

Sincerely,
John Womack
Acting Chief Counsel
Enclosures
ref:107#111#201#205
d.4/29/98

ID: 17497.ztv

Herr Tilman Spingler
Robert Bosch GmbH
FAX 9-011-49-7121-35-1792

Dear Herr Spingler:

This is in reply to your fax of March 12, 1998, commenting on our letter to you of March 10 with respect to the visual/optical headlamp aiming provisions of Federal Motor Vehicle Safety Standard No. 108.

In response to your question, our letter advised that it would not be permissible to install on new vehicles a mixed headlighting system in which a headlamp on one side of the vehicle would have a VHAD for vertical aim and on the opposite side a visually aimable headlamp. We also advised that the VHAD appeared to allow for vertical aim only and did not include a horizontal aiming feature. You comment that it was not the intent to have a headlamp with only a vertical VHAD but "to replace the vertical VHAD (bubble level) by means which allow optical/visual aim and to leave the horizontal VHAD as it is." We understand from your remark that both headlamps would have a horizontal VHAD and that one would have a vertical VHAD as well while the other would substitute for the vertical VHAD a means allowing optical/visual aim. This clarification, then, moots our previous comment.

You have also commented that "mixed installation should only be permitted in the case of replacement of a damaged headlamp as indicated in my FAX of 1/14/98," and asked whether our advice that the headlamps on both sides of a new vehicle have to be identical "really only applicable for new vehicles."

We do not seem to have received your FAX of January 14, 1998, in which you indicated that your question pertained to replacement headlamps rather than original equipment. While the prohibition against mixed headlamp aiming systems that was the subject of the March 10 interpretation applies only to new vehicles, the agency is concerned that the ability to correctly aim all headlamps on a vehicle could be lost as a result of certain mixes of replacement headlamps. Accordingly, the agency expects to propose shortly rulemaking that will address this issue.

Sincerely,
Frank Seales, Jr.
Chief Counsel
ref:108
d.6/3/98

ID: 17501.wkm

The Honorable Paul D. Coverdell
United States Senate
100 Colony Square, Suite 300
1175 Peachtree Street, NE
Atlanta, GA 30361

ATTN: Brice Willis

Dear Senator Coverdell:

This responds to your letter to Mr. Steve O. Palmer, the Department's Deputy Assistant Secretary for Governmental Affairs, which was referred to this agency for reply.

Your letter forwarded a letter dated January 23, 1998, from Mr. Jimmie D. Gowen, Jr., President, Big John Trailers, Folkston, GA. Mr. Gowen's letter enclosed copies of letters to The Honorable Saxby Chambliss, U. S. House of Representatives, and to Ms. Heidi Coleman, Assistant Chief Counsel for General Law in this office. Mr. Gowen stated in his letter to you that his company produces self-propelled loader/crane carriers that are equipped with early model used truck air brake axles that are not designed for antilock brake system (ABS) applications as now required by Federal Motor Vehicle Safety Standard (Standard) No. 121, Air brake systems. He stated that such vehicles are utilized primarily off-road in logging operations, although they are capable of being towed between job sites. He stated that being required to comply with the ABS requirements would result in his company's having to eliminate the vehicle from the company's product line. He therefore asked your assistance in bringing the matter to the attention of the proper authorities.

For your information, Mr. Gowen wrote to this agency on January 26, 1998, and submitted additional information to us on March 12, 1998. He asked whether knuckle boom loader trailers and self-propelled loader carriers that his company produces are required to comply with the ABS requirements of Standard 121. We replied that they are not subject to the ABS requirements because those particular vehicles do not meet the statutory definition of "motor vehicle."⁽¹⁾ Therefore, they need not comply with the Federal motor vehicle safety standards, in particular the ABS requirements of Standard 121. A copy of our response to Mr. Gowen is enclosed for your information.

I hope this information is helpful to you. Please let me know if I can be of any further assistance in this matter.

Sincerely,
John Womack
Acting Chief Counsel
Enclosure
ref: 121#VSA
d.4/23/98

1. "'[M]otor vehicle' means 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).