ID: nht80-4.15

DATE: 10/28/80

FROM: AUTHOR UNAVAILABLE; F. Berndt; NHTSA

TO: Guenther Auto Works

TITLE: FMVSS INTERPRETATION

TEXT: This is in reply to your letter of September 26, 1980 providing further information on your proposed manufacturing operation. I am pleased you found our earlier response "most workable and least bureaucratic" and hope that you will find this letter equally so.

A vehicle consisting of a new body on a used chassis, and retaining the same title, is a "used" vehicle, which does not have to meet the Federal safety standards that apply to new vehicles. If you were using the chassis of vehicles built on or after January 1, 1968, the resulting vehicle would have to meet the standards that applied when the original vehicle was built. However, there were no vehicle safety standards that applied before January 1, 1968 so your contemplated use of a 1964 chassis (or 1965-67 for that matter) frees you totally of responsibility for vehicle safety standards compliance, no matter whether you are a kit supplier or end assembler, or are using new or reconditioned components.

A few of our safety standards, however, apply to equipment items, specifically brake hoses, brake fluid, lighting equipment, tires, glazing, seat belt assemblies, and wheelcovers/hub caps. If you buy any of these items from an outside supplier, and the item is manufactured in the U.S.A., it is virtually certain that it will be certified by its manufacturers as meeting federal equipment standards. From your letter, it would appear that only the glazing standard (Standard No. 205) might be of concern to your operations since you write that you "will have constructed . . . glass panes . . . ." Glazing bearing the designation "AS-1" must be installed in the windshield of the new body. I am enclosing a copy of Standard No. 205 for your information.

Under the National Traffic and Motor Vehicle Safety Act you are a "manufacturer" with respect to any vehicle equipment you fabricate or vehicle you assemble. This means that in the event a "safety related defect" developed in your product, you would be obligated to notify the owners and remedy the defect. I enclose our "Part 573" which tells you how to file a defect report with us and "Part 577" which details how you notify purchasers and the optional remedies you may provide (See 577.5 (g)(i)(g)(v) and (g)(vi)). Finally, if you intend to assemble the vehicles yourself, or if you are fabricating glazing (or any other item covered by a Federal standard, you should submit the information required by our "Part 566" which I also enclose.

If you have any further questions we will, of course, be happy to answer them and we appreciate your wish to be informed of your obligations under Federal law.

Sincerely,

ATTACH.

SEPTEMBER 12, 1980

James A. Guenther -- Guenther Auto Works

Dear Mr. Guenther:

In reply to your letter of August 5, 1980, asking for copies of regulations that would apply to your proposed manufacturing operation, we must have more information if we are to help you.

The answers to these questions are needed. (A) Do you envision a "Kit car" type of operation in which an existing chassis is retained and a new body supplied. (B) What are the reconditioned components that you plan to use. (C) Will the vehicle carry a new car title or that of a vehicle previoully in use. (D) What parts will be new? What parts will be of your own manufacture?

We know of no other Federal agencies other than the Environmental Protection Agency and our own that regulate the production of passenger cars.

Sincerely, Frank Berndt -- Chief Counsel, NHTSA

9/26/80

Frank Berndt -- department of Transportation, NHTSA

Dear Mr. Berndt:

This letter is in Reference to NOA-30; copy of your correspondence is attached. Thank you for your efforts thus far. Your response was the most workable and least bureaucratic of any received.

In response to your specific questions in paragraph #2:

(A) At this time I intend to use a 1964 Chassis, the Balance of Equipment (body, etc.) To be newly constructed. If I follow this procedure, what effect will your agency have on my efforts? If I progress into kit car operations, how will this change the effect your Agency will have on my efforts?

(B) In regard to reconditioned components, I will offer the 1964 chassis mentioned above along with a mid-to-late '60's engine, rebuilt and modified (possibly) for slightly more power. Most else will be new (body, etc.)

(C) Titles in the state of Illinois, I believe, would be carried forward on such a vehicle. (I am currently writing to state capital as follow-up to your question.)

(D) As noted above, when I install new wiring, body, interior, etc., the finished products will have much of my own work included. I will design; constructed body seat mounts, seats, Dashboard, ETC. I will have constructed (probably) Handles, Glass Panes, Wire itself (although I will probably fashion wires into proper harnesses and circuits) will probably come from outside suppliers.

Hope you can help, based upon this information,

If more specifics are necessary, please let me know.

Sincerely, Mr. James A. Guenther, Guenther Auto Works, 3908 West Main - 8B, Belleville, Illinois 62223

ID: nht78-4.24

DATE: 12/12/78

FROM: AUTHOR UNAVAILABLE; J. J. Levin, Jr.; NHTSA

TO: James P. Bally, Esq.

TITLE: FMVSS INTERPRETATION

TEXT:

U. S. DEPARTMENT OF TRANSPORATION NATIONAL HIGHWAY TRAFFIC SAFETY ADMINISTRATION WASHINGTON, D.C. 20590

DEC 12 1978 NOA-30

James P. Bally, Esq. Messrs. Brownfield, Kosydar, Bowen, Bally & Sturtz 140 East Town Street. Columbus, Ohio 43215

Dear Mr. Bally:

We understand that you are interested in an interpretation of the relationship of a rear lighting system, developed by your client Mr. Leno Bevilacqua, to Federal motor vehicle lighting requirements. As you described this device in your letter of September 29, 1978, to the Nevada Department of Highways:

"The device will project a green light for the vehicle which would be in a constant or accelerated speed, a yellow light for the vehicle in a decelerated moving state and a red light for the vehicle which would be stopping."

Federal Motor Vehicle Safety Standard No. 108, Lamps, Reflective Devices, and Associated Equipment, (49 CFR 571.108) neither requires nor expressly prohibits a lighting device of this nature as original equipment on motor vehicles. One section of the standard, however, S4.1.3, prohibits the installation of all original lighting equipment not mandated by the standard "that impairs the effectiveness of lighting equipment required by this standard." While we make no judgment with respect to Mr. Bevilacqua's 18-inch long 1 1/2 inch high rectangular device, I think it important to note that the agency's research into rear green signal lights indicate that there may be disadvantages rather than advantages to such a lighting system. One major disadvantage is the problem of confusing the unfamiliar colored rear lamps in urban environments having multicolored lights.

Standard No. 108 does not cover this device as an aftermarket item, and it would therefore be subject to regulation by the individual States.

Sincerely,

Joseph J. Levin, Jr.

Chief Counsel

U.S. DEPARTMENT OF TRANSPORTATION NATIONAL HIGHWAY TRAFFIC SAFETY ADMINISTRATION REGION IX TWO EMBARCADERO CENTER - SUITE 610 SAN FRANCISCO, CALIFORNIA 94111

October 24, 1978

Mr. James P. Bally Brownfield, Kosydar, Bowen, Bally & Sturtz Attorneys at Law 140 East Town Street Columbus, Ohio 43215

Dear Mr. Bally:

Your letter of September 29, 1978 concerning an automobile safety signal system with reference to Saflect Signal Corporation and Mr. Leno Bevilacqua, was forwarded to this office. You requested an interpretation concerning conformance to Federal requirements.

We have forwarded the correspondence to our Washington, D.C. headquarters for reply.

Sincerely,

Joseph F. Zemaitis Motor Vehicle Programs Specialist

cc: Associate Administrator for Rulemaking NHTSA, Washington, D.C.

state agencies, therefore, our expression or interpretation is only an unofficial expression of our view in an attempt to be of some assistance to you.

Very truly yours,

William H. Raymond Deputy Attorney General Assistant Chief Counsel Department of Highways

WMR/l

cc: Joe Souza, Highway Engineer Darwin Garvin, FHWA, 1 with enclosure Brian Nelson, Esq., Deputy Attorney General, DMV, with enclosure

STATE OF NEVADA OFFICE OF THE ATTORNEY GENERAL 12635 SOUTH STEWART STREET CARSON CITY 89712

ROBERT LIST MELVIN L. BEAUCHAMP ATTORNEY GENERAL October 10, 1978 DEPUTY ATTORNEY GENERAL CHIEF COUNSEL DEPARTMENT OF HIGHWAYS

Mr. James P. Bally Brownfield, Kosydar, Bowen, Bally & Sturtz Attorneys at Law 140 East Town Street Columbus, OH 43215

Dear Mr. Bally:

Your letter of September 29, 1978, to our Highway Engineer was referred to this office for reply. A copy of your letter is attached hereto.

We are also attaching a copy of Nevada's Motor Vehicle laws which relate to "lamps and other lighting equipment." While this Department is not directly involved with motor vehicles and vehicle equipment, it would seem the proposed safety signal system would be subject to regulation, specifically under the provisions of NRS 484.563.

We are sending a copy of your letter to the District Office of the Federal Highway Administration for possible comment. I have discussed this matter with Mr. Darwin Garvin who will, if he can be of assistance, reply to you directly or forward your request to the appropriate office.

In addition, we are sending a copy of your letter to Brian Nelson, Esq., Deputy Attorney General for the Department of Motor Vehicles, whose agency is responsible for enforcing the motor vehicle laws which contain the attached statutes. Since this is their area of expertise, they should be able to give you their interpretation of whether or not your proposed system would meet the legal requirements of our state.

If this office can be of further assistance, please feel free to request the same.

It is the policy of the Nevada Attorney General's Office to give statutory opinions only to state officials or

ID: nht88-1.31

TYPE: INTERPRETATION-NHTSA

DATE: 02/11/88

FROM: AUTHOR UNAVAILABLE; Erika Z. Jones; NHTSA

TO: MTD Products Inc.

TITLE: FMVSS INTERPRETATION

TEXT:

Mr. J.V. McFadden President MTD Products Inc. P.O. Box 36900 Cleveland, Ohio 44136

Dear Mr. McFadden:

This responds to your letter concerning the applicability of Federal on State requirements to a hydraulic logsplitter mounted on a frame carriage equipped with highway high speed wheels and a trailer towing hitch. While we can not answer your question co ncerning applicable State requirements, we provide the following information on the applicability of Federal motor vehicle safety standards.

By way of background information, our agency is authorized, under the National Traffic and Motor Vehicle Safety Act of 1966 (15 D.S.C. 1381 et seq.), to issue safety standards applicable to new motor vehicles and certain items of motor vehicle equipment. NHTSA, however, does not approve motor vehicles or motor vehicle equipment, nor do we endorse commercial products. Instead, the Vehicle Safety Act establishes a "self-certification" process under which each manufacturer is required to certify that its p roducts meet all applicable safety standards. The Vehicle Safety Act prohibits the manufacture or sale of a noncomplying product unless, despite the exercise of due care, the manufacturer doesn't have reason to know that the noncompliance exists.

Any vehicle that falls within the statutory definition of the term "motor vehicle" must comply with all applicable safety standards. Section 102(3) of the Vehicle Safety Act (15 D.S.C. 1391(3) defines a "motor vehicle" as any vehicle driven or drawn by m echanical power manufactured primarily for use on the public streets, roads, and highways, except any vehicle operated exclusively on a rail or rails.

We have interpreted this language as follows. The definition does not include equipment which uses the highways only to move between job sites and which typically spends extended periods of time at a single job site. In this case, the on-highway use of t he vehicle is merely incidental, and is not the primary purpose for which the vehicle was manufactured.

On the other hand, when a vehicle frequently uses the highway going to and from job sites, and stays at the job site for only a limited time, it is the agency's position that the vehicle in question is a "motor vehicle" in the statutory sense, since the on-highway use is more than "incidental".

Notwithstanding the foregoing, a vehicle is not classified as a motor vehicle if it is of such an unusual configuration that it is easily distinguished from normal traffic and it has a top speed of not more than 20 miles per hour.

A determination of whether or not a vehicle falls within the definition of motor vehicle is based upon a consideration of all of the above factors. Given the information that you have provided us, it appears that the hydraulic log-splitter is a motor veh icle. From the picture in the brochure, it is clear that the vehicle has an unusual configuration. This alone, however, is not adequate to prevent a determination that the vehicle is a motor vehicle within the meaning of the statute. More important is th e fact that the vehicle may make frequent use of the highway, staying at one particular job site a limited amount of time. The provision of highway speed tires indicates the manufacturer's intention to produce a vehicle which is suitable for driving at h ighway speeds.

Because the tow-behind logsplitter is equipped with a trailer tow hitch, we would consider the vehicle a trailer, defined in the agency's regulations as:

a motor vehicle with or without motive power, designed for carrying persons or property and for being drawn by another motor vehicle.(See 49 CFR 571.3.)

The safety standards which apply to all trailers are Standard No. 108, Lamps, reflective devices, and associated equipment: Standard No. 120, Tire selection and rims for motor vehicles other than passenger cars: and Standard No. 115, Vehicle Identificati on Number--Basic Requirements. The content requirements for the vehicle identification number are found at Part 565. In addition, if the trailer is equipped with brakes, it must meet Standard No. 106, Brake hoses, Standard No. 116, Motor vehicle brake fl uids, and applicable requirements of Standard No. 121, Air brake systems. All of these standards are found in 49 CFR Part 571.

We regret the delay in responding to your request. If you have further questions on this matter, please contact us.

Sincerely,

Erika Z. Jones Chief Counsel

Highway Traffic Safety Administration Office of Chief Counsel 400 7th Street S.W. Washington, DC 20590

RE: Applicability of Highway Rules - Tow Behind Logsplitter

Gentlemen:

Your advice is requested relative to whether there are any federal or state requirements which would pertain to a hydraulic log-splitter mounted on a frame carriage equipped with highway high speed wheels and a trailer towing hitch.

We enclose product literature produced by Duerr Incorporated who inform us that this particular application does not fall within any regulations which would require lights, license plates, etc.

Very truly yours,

J.V. McFadden President

JVM/djm Enclosure: Product brochure

ID: nht88-1.32

TYPE: INTERPRETATION-NHTSA

DATE: 02/11/88

FROM: AUTHOR UNAVAILABLE; Erika Z. Jones; NHTSA

TO: Joanne Salvio -- Fire Research Corporation

TITLE: FMVSS INTERPRETATION

ATTACHMT: 8/13/80 letter from F. Berndt to FWD Corporation (Std. 206)

TEXT: Ms. Joanne Salvio Fire Research Corporation 26 Southern Blvd. Nesconset, NY 11767

This responds to your November 10, 1987, letter asking whether the "Guardian Gate" your company manufactures for firefighting vehicles is subject to Safety Standard No. 206, Door Locks and Door Retention Components. The answer to your question is yes, if the Gate is installed on new vehicles and if the area into which the door leads contains one or more seating positions.

The advertising material you enclosed states that the Guardian Gate "is designed to help firefighters while they are riding to fires in the jump seat of apparatus (sic)." The advertisement said that the unique feature of the Guardian Gate is its locking mechanism which enables the gate to be locked "on both its sides to the vehicle; the cab side, as well as the pump panel side." The advertisement said this "dual locking" feature is intended to minimize the likelihood that the gate will be opened either unintentionally or because of "hazardous conditions" (an explanation of which the advertisement did not include).

Paragraph @4 of Standard No. 206 states: "Components on any side door leading directly into a compartment that contains one or more seating accommodations shall conform to this standard. 206, but these are doors that are readily removable or that are not provided for retaining occupants. Since the Guardian Gate falls into neither of these two categories, the exemptions are not relevant to your inquiry.)

From the information you provided in your letter and in telephone calls between you and Ms. Hom of my staff, we understand that the standing area on the firefighting vehicle enclosed by the Guardian Gate contains a jump seat. Because "seating accommodati ons" referred to in @4 include jump seats, a Guardian Gate that is installed to enclose a jump seat area on a new firefighting vehicle must comply with Standard No. 206. This determination is consistent with an August 13, 1980 letter from NHTSA to Mr. L. Steenbock of the FWD Corporation (copy enclosed), in which this agency stated that a door leading to a standing area that contains no seating position would not have to comply with Standard No. 206.

Because Standard No. 206 applies to passenger cars, multipurpose passenger vehicles and trucks (e.g., firefighting vehicles), and not to replacement parts for installation in used vehicles of these types, you may sell the Guardian Gate to vehicle owners without regard as to whether the Gate complies with the performance requirements of the standard. However, we urge you to consider meeting those requirements voluntarily, to ensure that the Gate will perform to specified levels for the safety of firefigh ters riding in the "jump seat area" of the vehicle. You should also be aware that you are responsible under the National Traffic and Motor Vehicle Safety Act, as a manufacturer of motor vehicle equipment, to ensure that your product contains no defect re lating to motor vehicle safety. If you or this agency determines that a safety related defect exists, you must notify purchasers of your product of the defect and remedy the problem free of charge.

I hope this information is helpful.

Sincerely,

Erika Z. Jones Chief Counsel

Enclosure - see 8/13/80 letter from Frank Berndt to FWD Corporation

TO: Ericka Jones, Chief Counsel, NHTSA

DATE: November 10, 1987

SUBJECT: Guardian Gate

As per my telephone conversation with Ms. Hom, I am enclosing a copy of our Guardian Gate literature. We are trying to determine whether it is necessary for us to meet Regulation #206 or whether it does not apply to our product.

Any help you can give us will be greatly appreciated.

Thank you,

Fire Research Corp. after year of development announces a new product for the fire service. This new gate is designed to help firefighters while they are riding to fires in the jump seat of apparatus. This new design, PAT. PENDING, has a unique feature n ot available on any other door or gate. That is a dual locking concept. This gate actually locks on both its sides to the vehicle; the cab side, as well as the pump panel side. Thus, minimizing the chances for the gate to open up under hazardous conditio ns. The new locking mechanism actually lifts the gate up out of dual catches which allows it to be swung open. The gate handle with its unique design minimizes the possibility of inadvertently opening the gate unintentionally.

INTRODUCTORY PRICE $575 PER FAIR

MEASURING INSTRUCTIONS FOR ORDERING

LOCATE HINGE LOCKS M1 & M2 AND SECONDARY LOCK M3 ON VEHICLE SO THAT TOP RAIL IS LOCATED AT A SAFE HEIGHT. M3 SHOULD BE LOCATED AS HIGH AS POSSIBLE.

ID: nht76-5.63

DATE: 07/20/76

FROM: AUTHOR UNAVAILABLE; Frank A. Berndt; NHTSA

TO: Road America Tire

TITLE: FMVSR INTERPRETATION

TEXT: This is in response to your May 19, 1976, letter concerning the responsibilities that you would have as an importer and distributor of Dunlop passenger car tires. I understand that the tires would, before importation, be certified by Dunlop as conforming to Federal Motor Vehicle Safety Standard No. 109, New Pneumatic Tires -- Passenger Cars, and labeled with a tire identification number as required by 49 CFR Part 574, Tire Identification and Recordkeeping. This particular line of tires would at first be imported by Road America Tire but not by Dunlop Rubber and Tire Co. of Buffalo, New York (Dunlop New York), the usual importer of Dunlop tires.

You have inquired about your responsibilities concerning "record keeping, recall, and testing", with respect to the tires that you would import. The term "manufacturer" is defined in Section 102(5) of the National Traffic and Motor Vehicle Safety Act of 1966, as amended (15 U.S.C. 1391 et seq.)(the Act), to be

any person engaged in the manufacturing or assembling of motor vehicles or motor vehicle equipment, including any person importing motor vehicles or motor vehicle equipment for resale. (emphasis added)

In the event that neither the importer nor the actual manufacturer met an obligation imposed on a "manufacturer" by the Act or regulations issued thereunder, the National Highway Traffic Safety Administration (NHTSA) would consider taking enforcement action against both parties. Any such obligation, however, may be satisfied by either party. Please note that @ 574.8 of Part 574 also establishes requirements applicable to Road America Tire as a distributor of the tires in question.

The above discussion applies to manufactuers' notification and remedy obligations set out in Section 151 through 160 of the Act and to the tire identification and recordkeeping requirements of Part 574, among others. The Act does not specifically require any person to conduct tests of his products. Standard No. 109 establishes the performance tests which the NHTSA will conduct to determine conformity. A determination of nonconformity triggers the notification and remedy obligations regardless of the amount of testing the manufacturer has performed.

In conclusion, tires imported by Road America Tire would not be the responsibility of Dunlop New York. Conversely, tires imported by Dunlop New York would not be the responsibility of Road America Tire. While a factual issue might arise concerning which party actually imported a particular tire, such an issue would be resolved on the basis of information available in that particular case. You should note that, were the NHTSA to choose to proceed against Dunlop with respect to a tire imported by Road America Tire, the agency might serve administrative processes, notices, or orders on Dunlop New York. However, Dunlop New York would be served only in its capacity as the foreign Dunlop's designated agent for service of process pursuant to Section 110(e) of the Act, and not in its capacity as an importer.

Copies of the Act and Part 574 are enclosed for your convenience. You may rely on this letter in resolving any conflict that you might have with Dunlop New York.

YOURS TRULY,

road america tire

May 19, 1976

Mr. Schwimmer Office of the Chief Consol National Highway Traffic and Safety Administration

Thank you for taking time away from your busy schedule this morning to speak with us regarding our questions about D.O.T. regulations governing passenger car tires. As per your recommendation, we are putting into writing our various questions on the particular matters as follows:

1) What is our responsibility as an importer/distributor of a new type of Dunlop passenger car tire that is now D.O.T. marked and will not be imported by Dunlop Rubber and Tire Co. of Buffalo, New York in the following areas:

a) record keeping

b) recall

c) testing

2) Will any conflict arise, as far as your department is concerned, in us handling this new special tire apart from the normal passenger car line as carried by Dunlop, New York. Dunlop New York, is claiming that all D.O.T. marked tires are their responsibility since they are the major importer of most all other passenger car tires.

3) What would be the ramifications of both Dunlop New York and ourselves importing this same special tire and what problems would arise in the area of record keeping and recall. Dunlop New York has informed us that they will not import this tire at the present time, but may do so in the far future.

Please feel free to call me at the above number should you require any further information concerning this matter. We would appreciate receiving your official opinion in writing, so that we may resolve any conflict with Dunlop New York and we would also appreciate your approval in using your written opinion in this manner, as well. Thanking you in advance for your time and consideration in this matter.

Ronald E. Moser

ID: nht95-1.49

TYPE: INTERPRETATION-NHTSA

DATE: February 3, 1995

FROM: Philip R. Recht -- Chief Counsel, NHTSA

TO: Dimitrios Kallieris -- Associate Professor and Division Chief, Experimental and Forensic Biomechanics, Ruprecht-Karls-Universitat Heidelberg

TITLE: NONE

ATTACHMT: Attached to 9/16/94 letter from Dimitrios Kallieris to Director, Office of the Federal Register, National Archives and Records Administration (OCC 10354)

TEXT: Dear Dr. Kallieris:

This responds to your FAX to Dr. Rolf Eppinger of NHTSA, requesting an interpretation of the requirements specified in Standard No. 212, Windshield Mounting. The answers to your two questions are provided below.

Standard No. 212 sets different windshield retention requirements for a vehicle depending on whether it is equipped with passive or manual restraints. S5.1 of the standard provides that vehicles equipped with passive restraints must retain not less than 50 percent of the windshield periphery after crash testing. S5.2 of the standard provides that vehicles that are not equipped with passive restraints must retain not less than 75 percent of the windshield periphery.

You stated that you have conducted 30 m.p.h. crash tests of motor vehicles with freshly adhered windshields. In the test vehicle, two Hybrid III dummies were placed in the front driver and passenger positions. Each dummy was restrained "by a three-poin t belt and air bag."

Your first question asked whether the vehicle is subject to the requirements of S5.1 for "vehicles equipped with passive restraints," or S5.2 for "vehicles not equipped with passive restraints." The answer to your question depends on whether the restrain t system in the tested vehicle meets the definition of "passive restraint system" set forth in S4 of the standard. That term is defined as:

a system meeting the occupant crash protection requirements of S5. of Standard No. 208 by means that require no action by vehicle occupants.

Section S5 of Standard No. 208 sets occupant protection requirements that must be met in frontal, lateral and rollover crashes.

You did not provide much information about the vehicle in question. We assume it is a passenger car. Standard No. 208 (S4.1.4) requires the following of current production passenger cars:

(a) At each front outboard designated seating position, each vehicle must meet the standard's frontal crash protection requirements (S5.1) by means that require no action by vehicle occupants (e.g., by means of an air bag or automatic restraints); (b) at the front center designated seating position and at each rear seating position, have a type 1 (lap) or type 2 (lap/shoulder) belt assembly that meet specified requirements; and

(c) either meet the lateral and rollover crash protection requirements of Standard No. 208 by means that require no action by vehicle occupants, or at each front outboard designated seating position, have a type 1 or type 2 belt assembly that meets th e requirements of S5.1 with front test dummies restrained by the type 1 or type 2 assembly in addition to the means that require no action by the vehicle occupant.

We assume that the "three-point belt and air bag" to which you refer were installed in the front outboard seating positions pursuant to these occupant protection requirements of Standard No. 208. NHTSA's longstanding position is that a vehicle equipped with a type 2 belt assembly and an air bag in those seating positions is equipped with a "passive restraint system," and is thus subject to the requirement of S5.1 that 50 percent of the windshield periphery must be retained. (See, e.g., August 18, 1986 letter to Volvo, copy enclosed.) As discussed in the enclosed letter, one of the reasons the agency adopted the 50 percent retention requirement for passive restraint-equipped vehicles was because there could be contact between an air bag system and the windshield, and incidental contact between an air bag-restrained test dummy and the windshield.

The Standard No. 208 requirements listed above mean that a vehicle with passive restraints must meet the Standard No. 208 performance criteria using only the passive restraints (air bag or automatic seat belt), and using both the passive and manual restr aints. This would also be the case for Standard No. 212. The windshield retention would have to be at least 50 percent with the dummies restrained by only the passive restraint, and with the dummies restrained by both the passive and manual restraints. Therefore, your test (which appeared to have been conducted using both the air bag and the type 2 belt assembly) may not have been the worst case situation.

Your second question asked whether the windshield displacements described in S5.1 and S5.2 are measured dynamically (i.e., during the crash), or statically (i.e., after the crash). NHTSA determines the portion of the windshield periphery that is retaine d by the vehicle after the dynamic crash test specified in the standard.

I hope this information is helpful. If there are any further questions, please contact Dorothy Nakama of my staff at this address or at (202) 366-2992. Our FAX no. is (202) 366-3820.

Sincerely

ID: nht95-1.91

TYPE: INTERPRETATION-NHTSA

DATE: March 8, 1995

FROM: Philip R. Recht -- Chief Counsel, NHTSA

TO: Courtney M. Price -- Esq., Reid & Priest

TITLE: None

ATTACHMT: ATTACHED TO 1/4/95 LETTER FROM COURTNEY M. PRICE TO PHILIP R. RECHT

TEXT: This responds to your questions about how this agency's regulations apply to a product known as a Brake Locker that is manufactured by your client, Maatzorit. You requested this agency to confirm your understanding that installation of the Brake Locker i s not precluded by Federal Motor Vehicle Safety Standard (FMVSS) No. 105, Hydraulic Brake Systems, FMVSS No. 106, Brake Hoses, or Section 108(a)(2)(A) of what you refer to as the National Traffic and Motor Vehicle Safety Act ("Safety Act."). n1

n1 In 1994, Congress codified the Safety Act. The new citation for 108(a)(2)(A) is 49 U.S.C. 30122. In addition, please be aware that on February 3, 1994, NHTSA issued FMVSS No. 135 Passenger Car Brake Systems that will eventually supersede FMVSS No . 105 with respect to passenger cars. Please note that your client's product will be subject to the same responsibilities, regardless of which FMVSS applies.

According to your letter, the Brake Locker prevents the theft of a parked vehicle by locking its brakes, without affecting brake usage while the vehicle is driven by an authorized driver. You stated that the Brake Locker is installed in the engine compa rtment on the brake fluid line between the brakes and the brake pump. An electronic coded transmitter is used to activate a motor which in turn activates a check valve, thereby preventing the release of the brakes by restricting the flow of brake fluid. When the check valve is activated, you state that "every press on the brake pedal causes the brakes to be locked."

The National Highway Traffic Safety Administration (NHTSA) is authorized under Title 49, Chapter 301 of the United States Code to issue FMVSSs that set performance requirements for new motor vehicles and new items of motor vehicle equipment. NHTSA does not approve or certify any vehicles or items of equipment. Instead, Chapter 301 establishes a "self-certification" process under which each manufacturer is responsible for certifying that its products meet all applicable safety standards. The agency pe riodically tests new vehicles and items of equipment for compliance with the standards.

Nothing in FMVSS No. 105 nor FMVSS No. 106 precludes the inclusion of a hydraulic brake lock, nor does NHTSA have any other regulations specifically covering such a product. Therefore, Maatzorit, as the device's manufacturer, would not have any certific ation responsibilities. Nevertheless, the requirements of FMVSS No. 105 are relevant to a hydraulic brake lock. That standard specifies a number of brake performance requirements to which the vehicle manufacturer must certify compliance. Since the ins tallation of a hydraulic brake lock requires the installation of a check valve on the brake fluid line between the foundation brakes and the brake pump, it is possible that the installation of such a device could affect a vehicle's compliance with FMVSS No. 105.

If the Brake Locker is installed as original equipment on new vehicles prior to the first sale of the vehicle to a consumer, then the vehicle manufacturer is required to certify that with the Brake Locker installed, the vehicle complies with all applicab le FMVSSs, including FMVSS No 105 and FMVSS No. 106. A vehicle manufacturer's specific certification responsibilities depend on when the brake locker is installed and are set forth in 49 CFR Parts 567 and 568. For instance, if a vehicle has already bee n certified by the vehicle manufacturer but has not yet been sold to the consumer, then the person doing the installation after that time would be considered to be an "alterer" who would have to certify that the vehicle, as altered, continues to comply w ith all of the safety standards affected by the alteration.

If the Brake Locker is installed after the first consumer purchase, then 49 U.S.C. 30122 is relevant to your client's product. That section provides that

A manufacturer, distributor, dealer, or motor vehicle repair business may not knowingly make inoperative any part of a device or element of design installed on or in a motor vehicle or motor vehicle equipment in compliance with an applicable motor vehicl e safety standard.

This provision would prohibit any of the named commercial entities from installing a Brake Locker, if such installation makes inoperative the compliance of the vehicle with any applicable safety standard, such as FMVSS No. 105. For example, if the Brake Locker, caused the vehicle to no longer comply with the parking brake or service brake requirements in FMVSS No. 105, then installation of the system would make inoperative compliance with that standard. Any violation of this prohibition is subject to a potential civil penalty of up to $ 1,000 for each violation. Please note that the "make inoperative" provision does not prohibit owners from modifying their vehicles, even if such modification adversely affects the compliance of the vehicle with safet y standards.

I hope you find this information helpful. If you have any other questions, please contact Marvin Shaw at this address or by phone at (202) 366-2992.

ID: nht91-6.42

DATE: October 28, 1991

FROM: Paul Jackson Rice -- Chief Counsel, NHTSA

TO: Satoshi Nishibori -- Vice President, Industry/Government Affairs, Nissan Research & Development, Inc.

TITLE: None

ATTACHMT: Attached to letter dated 9-3-91 from Satoshi Nishibori to Paul Jackson Rice (OCC 6427)

TEXT:

This responds to your letter seeking an interpretation of the phase-in requirements for automatic crash protection in light trucks under Standard No. 208, Occupant Crash Protection (49 CFR S571.208). Specifically, you described a situation in which Nissan and another manufacturer will enter into a joint program to produce multipurpose passenger vehicles (MPVs). According to your letter, Nissan has undertaken the majority of the design and development tasks and will supply the major powertrain components to the other company for the purposes of assembly. The other company will assemble the powertrain and the rest of the vehicle in the United States. Some of the MPVS will be badged as the other company's vehicles and some will be badged as Nissan vehicles.

Your letter stated that Nissan and the other company have entered into a contract that states that the other company "is the manufacturer of the vehicle and will inscribe its name on the certification label." Both companies will mutally agree to an addendum of the previous contract that provides that each company will be treated as the manufacturer of the vehicles badged as their vehicles for the purposes of the phase-in of the automatic crash protection requirements for light trucks. You asked for an interpretation of two points. First, you asked if Nissan would be considered a manufacturer of these vehicles. NHTSA set forth the agency's position on this subject in the notice proposing to establish the phase-in of the automatic crash protection requirements for passenger cars. The following explanation appears at 50 FR 14596, April 12, 1985:

Since the National Traffic and Motor Vehicle Safety Act places the responsibility of compliance with safety standards on manufacturers, the agency does not have authority to attribute a vehicle to a party other than one of the vehicle's manufacturers. However, the agency considers the language in section 102(5) of the Vehicle Safety Act that a manufacturer is "any person engaged in the manufacturing or assembling of motor vehicles . . ." to be sufficiently broad to include sponsors, depending on the circumstances. For example, if a sponsor contracts for another manufacturer to produce a design exclusively for the sponsor, the sponsor may be considered the manufacturer. This follows from application of basic principles of agency law. In this case, the sponsor is the principal. On the other hand, the mere purchase of vehicles for resale by a company which also is a manufacturer of motor vehicles does not make the purchaser the manufacturer of those vehicles.

Applying these principles to the situation described in your letter, NHTSA concludes that Nissan would be considered a manufacturer of the jointly produced MPVs. Your letter indicates that Nissan will have done more than simply purchase another manufacturer's vehicles. Based on your representations that Nissan has undertaken the majority of design and development tasks and will supply the major powertrain components for these MPVs, we would view Nissan as a sponsor, and therefore a manufacturer, of these MPVS.

Second, you asked if Nissan can count those jointly produced MPVs that are badged as Nissans as its vehicles for the purposes of the phase-in of the automatic crash protection requirements for light trucks. This question is answered in the attribution rules for the light truck automatic crash protection phase-in, which appear at S4.2.5.6 of Standard No. 208. S4.2.5.6.2 provides that, in situations where a light truck is produced by more than one manufacturer, the manufacturers may agree among themselves which one will be considered the manufacturer of the light trucks in question for the purposes of the phase-in. When such an agreement is reached, it must be set forth in an express written contract and reported to this agency. Absent such an agreement, S4.2.5.6.1 provides that, for light trucks manufactured in the United States, the manufacturer that markets the light trucks will have those vehicles counted in its production.

If there were no contract between Nissan and the other manufacturer, Nissan would be considered the manufacturer of the Nissan badged light trucks for the purposes of the phase-in, pursuant to S4.2.5.6.1 of Standard No. 208. However, since there is a contract, its provisions will be applied to determine to which party the Nissan badged MPVs will be attributed during the phase-in, pursuant to S4.2.5.6.2. Your letter suggests that the contract between Nissan and the other manufacturer currently provides that the other manufacturer is the manufacturer of these vehicles and will identify itself as such on the vehicle's certification label. In that case, the other manufacturer would have the Nissan badged vehicles attributed to it during the phase-in.

Please note that Nissan and the other manufacturer are free to change the current attribution of the Nissan badged MPVs, by executing an addendum to the previous contract. Any such addendum must, of course, be reported to NHTSA pursuant to the requirements of 49 CFR S585.5(b)(3).

I hope that this information is helpful. Please let me know if you have any further questions or need some additional information on this subject.

ID: nht69-1.33

DATE: 07/14/69

FROM: AUTHOR UNAVAILABLE; L. R. Schneider; NHTSA

TO: Interamerican Motor Corporation

TITLE: FMVSS INTERPRETATION

TEXT: This is in reply to your letter of May 27 in which you request information necessary to obtain a D.O.T. number and import "Pneumant" tires. The information furnished below concerns only those requirements of the Department of Transportation.

Regulations promulgated pursuant to Section 110(e) of the National Traffic and Motor Vehicle Safety Act of 1966 (15 U.S.C. @ 1391 et seq., 1399(e)) require any manufacturer, assembler, or importer of a motor vehicle before offering a motor vehicle or item of motor vehicle equipment for importation into the United States to designate a permanent resident of the United States as his agent upon whom service of all processes, notices, orders, decisions, and requirements, may be made.

The manufacturer of "Pneumant" tires is therefore required to designate an agent is prescribed in the regulations (49 C.F.R. @ 351.45) and I enclose a copy of them, as well as a copy of the National Traffic and Motor Vehicle Safety Act, for your information.

Please note that these regulations require the designation to be made in a specific manner. The designation should contain the following:

(1) a certification by the signer of the designation that it is binding on the manufacturer of "Pneumant" tires under the laws, corporate by-laws, or other requirements governing the making of the designation by the manufacturer of "Pneumant" tires at the place and time where it is made;

(2) the full legal name, principal place of business, and mailing address of the manufacturer of "Pneumant" tires;

(3) trade names, or other designations of origin of the products of the manufacturer of "Pneumant" tires which do not bear its legal name;

(4) a provision that the designation remains in effect until withdrawn or replaced by the manufacturer of "Pneumant" tires;

(5) a declaration of acceptance duly signed by the designated agent; and,

(6) the full legal name and mailing address of the designated agent.

In addition, the designation should be signed by one with authority to appoint the agent for the manufacturer of "Pneumant" tires, and this authority should be so indicated.

In your letter you state that it is your understanding that "all tires used in this Country are subject to approval which will be given in form of a D.O.T. number." This is incorrect. There is no provision in the National Traffic and Motor Vehicle Safety Act which provides that motor vehicles and motor vehicle equipment are to be approved by the United States Government. On the contrary, under this Act the manufacturer of the motor vehicle or item of motor vehicle equipment bears the responsibility for complying with Federal Motor Vehicle Safety Standards promulgated pursuant to the Act; and, pursuant to Section 114 of the Act for certifying that his product so complies. In the case of tires, the applicable standard is Standard No. 109 and I enclose a copy of it with applicable amendments for your reference. Standard No. 109 contains requirements for new pneumatic tires for passenger cars, and in order to meet the requirements of the Act, "Pneumant" tires must comply with Standard No. 109. Furthermore, the manufacturer of these tires must certify in the prescribed manner that such tires so comply.

The "D.O.T. number" to which you refer is required by Section 201 of the Act and the labelling section (S.4.3 and "Figure 1") of Standard No. 109. As specified in the standard, the letters "D.O.T.", when permanently molded into or onto the tire so that the tire is conspicuously labelled on both sidewalls, indicate pursuant to S.4.3(1) and Figure 1 of Standard No. 109, that the tire has been manufactured to conform to applicable Federal Motor Vehicle Safety Standards. This satisfies the certification requirement referred to above.

The code mark number is included as part of the label (as illustrated in Figure 1) pursuant to Section 201 of the Act, when the tire contains a brand name other than the name of the manufacturer, and is included for the purpose of permitting the seller of the tire to identify the manufacturer to the purchaser upon his request.

A code mark number can be obtained from the Department of Transportation by any tire manufacturer on request, but is only necessary when a name other than the manufacturer's is used on the tire. Such a request should be directed to Secretary of Transportation; Attention: Motor Vehicle Safety Performance Service, National Highway Safety Bureau, Federal Highway Administration, U. S. Department of Transportation, Washington, D.C. 20591. Issuance of the code mark number by the government that tires manufactured by the one to whom it is issued meet Federal requirements. As indicated above, the code mark number is to be used purely for labelling purposes.

I am also enclosing a copy of Federal Highway Administration Import Regulations, (19 C.F.R. @ 12.80) which are promulgated jointly with the Treasury Department pursuant to Section 108(b)(3) of the Act for your information.

Should you have further questions, please feel free to contact me.

ID: nht71-5.48

DATE: 07/06/71

FROM: AUTHOR UNAVAILABLE; Douglas W. Toms; NHTSA

TO: Ford Motor Company

TITLE: FMVSR INTERPRETATION

TEXT: On June 29, 1971, you submitted on behalf of Ford Motor Company an Amendment to Petition for Reconsideration of Federal Motor Vehicle Safety Standard No. 208. In this amendment of your petition you seek a stay of the effective date of the rule and the reopening of the administrative proceedings on the grounds that (1) Ford might make "specific responses, rebuttals and comments" regarding materials not placed in the docket until after issuance of the rule in question, and (2) Ford's own continuing work has resulted in material information which it could not until quite recently have made available. You request that the "amendment be decided" concurrently with Ford's petition for reconsideration.

As you know, the safety standards are promulgated under informal rulemaking procedures of Section 4(b) of the Administrative Procedure Act (5 U.S.C. @ 553(c)). Automotive Parts & Accessories Association, Inc. v. Boyd, 407 F.2d 330 (D.C. Cir. 1968). Under informal rulemaking procedures, an agency "may act not only on the basis of the comments received in response to its notice of rulemaking, but also upon the basis of information available in its own files, and upon the knowledge and expertise of the agency." California Citizens Band Association v. United States, 375 F.2d 43, 54 (9 Cir., 1967). Under section 105(a)(1) of the National Traffic and Motor Vehicle Safety Act, judicial review of our rulemaking takes place on the basis of the "record," which consists of all relevant materials available to the agency and considered by it in connection with the action in question. The certified list of the record in this matter filed in the Sixth Circuit is composed of just such a record. We emphatically deny that the assembling of the record in this manner constitutes "stacking" of

2 the record. On the contrary, we maintain that such action is entirely proper, a regular adjunct to informal rulemaking conducted in accordance with 5 U.S.C. 553 of the Administrative Procedure Act, and is consistent with action taken in previous similar judicial review proceedings involving this agency.

Under the informal rulemaking procedures utilized by the NHTSA, the "record" is never really closed. When a final rule is issued, petitions for reconsideration may be filed pursuant to 49 CFR 553.35. When a final decision is issued on petitions for reconsideration, further submissions are placed in the public docket and are treated as petitions to establish, amend, or repeal a rule pursuant to 49 CFR 553.31. Thus, Ford and any other interested person are free at all times to submit relevant information to any rulemaking docket; and these submittals are regularly brought to the attention of concerned personnel for appropriate action.

Under 49 CFR 553.35(b) of the Administration's procedural rules, a petitioner for reconsideration may submit additional facts if he states the reason why they were not presented within the prescribed period. In your request to amend your petition for reconsideration you did state two such reasons (the same reasons advanced in support of the merits of your amendment): (1) the addition of materials to the docket by NHTSA, and (2) the possession by Ford of new material information only recently made available. Although we cannot agree with your contention that the Administration acted in a manner inconsistent with informal rulemaking procedures, you are nevertheless free to submit at this time whatever information you think is relevant to the record, including information only recently made available through Ford's continuing research. Accordingly, your June 29, 1971, amendment to your petition for reconsideration will be accepted as such and considered along with the petition pursuant to your request. If you have other material you wish to submit in addition to that already submitted under date of June 29, 1971, please submit it as soon as possible. Under informal rulemaking procedures this Administration is eager to receive such additional information and strongly urges Ford to make a prompt submission of any such material. Material submitted after a decision has been made on the petitions for reconsideration will, of course, be placed in the public docket pursuant to 49 CFR 553.31 of the Administration's procedural rules.

Ford Motor Company

June 29, 1971

Douglas W. Toms Administrator National Highway Traffic Safety Administration

Dear Mr. Toms:

Amendment to Petition for Reconsideration of Federal Motor Vehicle Safety Standard No. 208 -- Occupant Crash Protection -- Passenger Cars, Multipurpose Passenger Vehicles, Trucks and Buses

We are transmitting herewith for your information a copy of an amendment to the Ford Motor Company's pending Petition for Reconsideration in the above matter. The amendment has been formally filed in NHTSA's docket. In our view, the points discussed in this document raise grave questions as to the procedure followed in promulgating the occupant crash protection standard.

As you will note from the first page of the enclosure, Ford requests, because of the urgent matters set forth therein, that the amendment be decided with utmost dispatch, concurrently with Ford's pending Petition for Reconsideration.

Respectfully submitted,

J. C. Eckhold Automotive Safety Director