ID: 19278.DRN

Richard Nelson, Director
Nebraska Department of Health and Human Services
Regulation and Licensure
P. O. Box 95007
Lincoln, NE 68509-5007

Dear Mr. Nelson:

This responds to a letter from your predecessor, Ms. Gina Dunning, regarding a "new regulation" that Ms. Dunning believed the National Highway Traffic Safety Administration (NHTSA) has issued which "prohibits the sale of commercial vans with a capacity of eleven or more to child care centers that transport children to or from school and school-related activities and Head Start programs." As the head of the Nebraska regulatory agency for child care programs, Ms. Dunning expressed concern about its effect on transportation for children in your state.

Let me begin by explaining that NHTSA's school bus regulations have not changed. We have, however, clarified our interpretation of the regulations. Our statute, at 49 U.S.C. 30112, requires any person selling or leasing a new vehicle, including a new school bus, to sell or lease a vehicle that meets all applicable safety standards. Our statute defines a "schoolbus" as any vehicle that is designed for carrying 11 or more persons and which is likely to be "used significantly" to transport preprimary, primary, and secondary students "to or from school or an event related to school" (emphasis added). 49 U.S.C. 30125. Any person selling a new "school bus" must sell a vehicle that meets our school bus safety standards, or risk civil penalties under Federal law.

In recent interpretation letters to NHTSA, the agency was asked to address situations where non-educational institutions are procuring buses to transport children to or from school. In answering these, we had to determine whether the bus was to be "used significantly" to transport the students to or from school. >If a new bus is sold for such purpose, the dealer selling such a vehicle for that purpose must sell a bus that has been certified as meeting our school bus safety standards. There are van-based vehicles, completed by school bus manufacturers, that are certified to those standards.

One of those letters involved a dealer selling a new 15-passenger van to a child care facility which planned to significantly use the van for school transportation. The letter is dated July 23,

1998, to Mr. Don Cote of Northside Ford in San Antonio, Texas (copy enclosed). In that letter, we explained that the large passenger van is a "school bus" under our regulations. Thus, when a dealer sells or leases a new van for such use, the dealer must sell or lease only buses that meet Federal motor vehicle safety standards for school buses, even when the purchaser is a child care facility.⁽¹⁾

The Cote letter discusses NHTSA's reexamination of two previous letters addressed to Ms. Vel McCaslin of Grace After School. In arriving at the conclusions set forth in the Cote letter, NHTSA decided that the letters to Ms. McCaslin did not focus on the fact that the buses were being used to transport school children "from school" as specified in 49 U.S.C. 30125. To the extent that the McCaslin letters are inconsistent with it, the Northside Ford letter superceded the letters to Ms. McCaslin.

This change in interpretation applies only to persons that sell new buses, not to school bus purchasers or users. NHTSA cannot require Nebraska's institutions, including schools or child care centers, to buy only school buses for use in transporting students. How children are to be transported to or from school is determined by Nebraska state law.

Ms. Dunning expressed concern whether "children are indeed safer being transported by school buses than commercial vans," and indicated that while that might have been true in 1974, her belief is that vans are safer today than they were in 1974. All motor vehicles, including passenger vans and other buses, must meet higher safety standards today than they did in 1974. Nevertheless, children are still much safer when transported by school bus, than by passenger van or passenger car. This point is illustrated in the enclosed NHTSA publication "School Bus Safety: Safe Passage for America's Children."

Page 12 of the publication shows how safety is enhanced for school buses, with a table summarizing the Federal motor vehicle safety standards applicable to school buses. Passenger vans are not required to meet the described safety enhancements.

Ms. Dunning expressed concern about the fact that the large school buses are not required to provide seat belts. I am enclosing NHTSA's position on this issue, titled "Seatbelts on School Buses." This information is from NHTSA's web site at www.nhtsa.dot.gov. In brief, our position has been that school bus crash data show that Federal requirement for belts on school buses would provide little, if any, added protection in a crash.

Ms. Dunning also believed that child care centers that purchase school buses "will incur significantly higher vehicle costs and higher insurance, maintenance and fuel costs." We have examined the issues of costs and availability. Our inquiries to the vehicle manufacturers indicate that while school buses are somewhat more expensive than large vans, the difference is not so large that it would prevent child care centers from acquiring school buses. The cost range for 15-passenger school buses is approximately $30-32,000, compared to $25-28,000 for 15-passenger vans. The longer service life for school buses will offset a part of this difference.

Ms. Dunning's final point was that child care centers have expressed concern about the length of time it takes between ordering a school bus and its delivery. Ms. Dunning said that the delay hampers the child care centers' operations and "will seriously impact centers' ability to meet parent needs and remain in business." NHTSA has a very strong focus on child safety in transportation, and is doing its best to facilitate school bus purchases for child care centers that seek to purchase school buses for their school-aged children. The leadtime required for delivery of a school bus may be two or three months longer than for a large van, but this should not present a problem for organizations that follow a systematic plan for vehicle replacement. We are currently working with our partners in state and local communities, and in the school bus industry, to see what can be done to reduce the time between a school bus order and its delivery.

For your information, because of the increasing number of pre-school aged children being transported by school buses and the pupil transportation community's request for guidance on how to safely transport these children, NHTSA released a February1999 Guideline for Transporting Pre-school Aged Children in School Buses. A copy of this document is enclosed for your information.

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

Sincerely,
Frank Seales, Jr.
Chief Counsel
Enclosures (4 items)
ref:VSA#Part 571.3

1. Please note that NHTSA has never stated that day care facilities that provide only custodial care are "schools." NHTSA's laws do not affect new bus sales to child care facilities that are not significantly involved in transporting school aged children "to or from" school. The Cote letter could affect the facility if it is involved in transporting children to or from school.

ID: 19283.ogm

E. Pluribus Law Firm, P.C.
P.O. Box 326
Leland, MI 49654

Re: FMVSS 209

Dear Sir or Madam:

This responds to your letter concerning the test requirements of Standard No. 209, Seat Belt Assemblies. Your questions relate to provisions addressing the performance of seat belt buckles under this safety standard. Specifically, you ask several questions about what you describe as the "partial engagement" provisions of Standard No. 209. Your seven questions, and our response to each question are provided below.

l. How does NHTSA define "partial engagement" under FMVSS 209 3.21 & 5.27?

ANSWER: We note that Standard No. 209 does not contain either section you refer to in your question. However, S4.3(g) and S5.2(g) of Standard No. 209, respectively, each use the phrase "partial engagement" in describing the minimum performance criteria and the test procedures for assessing buckle performance. Under S4.3, a seat belt buckle with a metal-to-metal buckle must separate when subjected to a force of not more than 22 newtons 95 pounds) or less when in any position of "partial engagement." The meaning of the phrase "partial engagement" is not defined in Standard No. 209 and has not been previously interpreted by NHTSA insofar as it applies to this particular standard. We believe that "partial engagement" is that position where the male end and the female receptacle of a seat belt assembly is neither fully engaged and latched nor fully disengaged. Therefore, the two components are partially engaged when the male end is inserted into the receptacle but has not been inserted to the point where the latching mechanism has closed.

2. Is "partial engagement" one of the phenomena which NHTSA is concerned about in the language of FMVSS 209 3.5 - "Buckle release mechanism shall be designed to minimize the possibility of accidental release"?

ANSWER: No. As used in this Standard, "partial engagement" is not a phenomenon but is a state in which the buckle assembly is placed to test the resistance of the assembly to separation or disengagement when it is not in the fully latched position. The requirement in S4.1(e) that buckle release mechanisms be designed to minimize the possibility of accidental release is intended to provide some assurance that buckles will not be inadvertently released once in the latched position.

3. Is it correct that FMVSS 209 3.21 preclude [sic] certification of any buckle which requires more that 5 lbs. to release from any position of partial engagement? Specific reference should be made to the language "a metal buckle shall separate when in any position of partial engagement by a force of not more than 5 pounds (2.3 Kg)" in interpreting this provision.

ANSWER: Again, we note that Standard No. 209 does not contain the section cited in your question. However, the language cited in your question is found in S4.3(g) of the Standard. If this is, in fact, that section that your question refers to, the answer is yes.

4. Assuming no testing of maximum engagement is required under FMVSS 209 5.27 if it is determined that partial engagement is not possible "by means of a technique representative of actual use", how important is it to conduct a fair and adequate test of "representative use?"

ANSWER: In answering this question, we assume that you are referring to S5.2(g) of Standard No. 209. In certifying compliance with a standard, manufacturers must make efforts to ensure that they have exercised due care. If the agency testing shows that an apparent noncompliance exists with a vehicle or item of equipment, the manufacturer is asked to show the basis for its certification that the vehicle or equipment complies with the relevant safety standard or standards. If there is a noncompliance, the manufacturer must conduct a recall campaign to remedy the problem. In addition, the manufacturer is subject to civil penalties unless it can establish that it exercised "due care" in the design and manufacture of the product and in the checks (through actual testing, computer simulation, engineering analyses, or other means) to ensure compliance, but nevertheless did not have reason to know that the vehicle or item of equipment did not comply with the safety standards.

5. What is a fair and adequate test to determine "whether partial engagement is possible by means of a technique representative of actual use" under FMVSS 209 5.27?

ANSWER: This agency has long stated that it is unable to judge what efforts would constitute "due care" in advance of the actual circumstances in which a noncompliance occurs. What constitutes "due care" in a particular case depends on all relevant facts, including such things as the limitations of current technology, the availability of test equipment, the size of the manufacturer, and, above all, the diligence exercised by the manufacturer.

6. Would the NHTSA interpretations provided above be the same in 1988-91 as they have been provided in response to the request for interpretation herein.

ANSWER: Yes.

7. If the response to request No. 6 is negative, please identify all interpretations which would have been different and the underlying basis for the change in interpretation between 1988-91 and present.

ANSWER: See the answer to item 6 above.

I hope you find this information helpful. If you have any other questions, please contact Otto Matheke of my staff at this address or by phone at (202) 366-2992.

Sincerely,
Frank Seales, Jr.
Chief Counsel
ref:209
d.7/8/2000

ID: 1930y

Mr. Ted Aston
3218 Sheffield Place
Concord, CA 94518

Dear Mr. Aston:

This is in reply to your letter with respect to your wish to import motor vehicle parts from England, to be used in the construction of a kit car for your own use. I regret the delay in responding.

You have informed us that you are not importing parts controlled by the Federal motor vehicle safety standards, such as "lights, tires, brake hoses, glazing materials," or "the engine, transmission, wheels, instruments, and miscellaneous items that are readily available here". Instead, you will be importing "body parts, frame parts, suspension and some steering parts, some electrical parts and the gas tank."

From your description, we believe that your intention is to import motor vehicle equipment and not a motor vehicle. The only items of motor vehicle equipment which are covered by the Federal motor vehicle safety standards, and hence must comply or be brought into compliance with those standards are: brake hoses, brake fluid, lighting and reflective devices, passenger car tires, retreaded tires, tires and rims for vehicles other than passenger cars, wheel covers, warning devices, glazing, seat belt assemblies, and child seating systems. If the motor vehicle equipment you are importing includes none of these items, then the equipment may be entered without the necessity of giving a bond for the production of a statement that it has been brought into compliance.

I hope that this letter is helpful to you.

Sincerely,

Stephen P. Wood Acting Chief Counsel

ref:VSA d:8/7/89

ID: 1931y

Don A. Norton, Esq.
Levinson, Murray & Jensen, P.C.
Suite 400
312 West Randolph Street
Chicago, IL 60606

Dear Mr. Norton:

This is in reply to your letter with respect to compliance of imported motor vehicles with the Federal standard relating to vehicle identification numbers (VIN). I regret the delay in responding.

You have asked "in what manner does the importer affix the vehicle identification number to the tag that is to be located so as to be visible from the outside of the vehicle through the left portion of the windshield? Is the proper procedure to acertain the proper chassis number of the vehicle, and then to fashion, emboss, and affix a plate of any design that would comport with the visibility regulations," or is it affixed by the State authority that licenses the vehicle.

Compliance with any Federal motor vehicle safety standard is the responsibility of the importer of any vehicle not originally manufactured to comply with the standards. Compliance with Standard No. ll5 requires affixation of the VIN in the location you described (paragraph S4.6). The VIN label should be affixed by the person conforming the vehicle, as compliance with all Federal motor vehicle safety standards, including Standard No. ll5, must be demonstrated simultaneously in order to satisfy Federal requirements. A State does not affix VINs.

In response to a request you made for information, please note that we have searched our records and find no l98l or other model Mercedes-Benz with the serial number WDB10704612000486.

Sincerely,

Stephen P. Wood Acting Chief Counsel /ref:115 d:8/7/89

ID: 19323.wkm

Mr. Michael L. Mack
Bosch Automotive Proving Grounds
Bosch Braking Systems Corporation
32104 State Road 2
New Carlisle, IN 46552-9605

Dear Mr. Mack:

Please pardon the delay in responding to your letter to this office in which you referred to paragraph S5.6.2 of Federal Motor Vehicle Safety Standard (Standard) No. 121, Air brake systems, and asked whether, after activating the parking brake and releasing the service brake, the vehicle would be allowed to "roll a bit" before the parking brake takes hold. The answer is a qualified yes.

Paragraph S5.6.2 of Standard No. 121 provides:

Grade holding. With all parking brakes applied, the vehicle shall remain stationary facing uphill and facing downhill on a smooth, dry portland cement concrete roadway with a 20-percent grade, both

(a) When loaded to its GVWR, and

(b) At its unloaded vehicle weight plus 500 pounds (including driver and instrumentation).

We assume that Bosch is referring to the distance traveled during brake "wrap-up" (partial revolution of the braked wheels to enable the brake shoes to reach peak torque). Although the standard is silent on this issue, the agency discussed it in a February 8, 1990 Federal Register notice (55 FR 4447-4453, copy attached), stating that some small amount of movement, on the order of several inches, can result during the transition from the service brake application to the parking brake application. Therefore, we would not consider such small amount of movement during brake wrap-up to be in violation of the grade holding requirements of Standard No. 121.

I hope this information is helpful to you. Should you have any questions or need additional information, you may contact Walter Myers of my staff at this address or by telephone at (202) 366-2992 or by fax at (202) 366-3820.

Sincerely,
Frank Seales, Jr.
Chief Counsel
ref:121
d.7/2/99

ID: 1932y

Mr. John Schroeter
August Industries
26717 216th Av., S.E.
Maple Valley, WA 98038

Dear Mr. Schroeter:

This responds to your letter asking for information about the application of Federal safety standards to a head restraint that attaches to the rear window of pickup trucks. I regret the delay in responding. I hope the following information is helpful.

By way of background information, the National Highway Traffic Safety Administration (NHTSA) is authorized by the National Traffic and Motor Vehicle Safety Act to issue Federal motor vehicle safety standards that set performance requirements for new motor vehicles and items of motor vehicle equipment. NHTSA is not authorized to certify or approve motor vehicles or motor vehicle equipment for compliance with our Federal motor vehicle safety standards. Instead, under the National Traffic and Motor Vehicle Safety Act (copy enclosed), each manufacturer of a motor vehicle or item of motor vehicle equipment is responsible for certifying that its products meet all applicable safety standards. The following represents our opinion based on the information provided in your letter.

There is currently no Federal motor vehicle safety standard that is directly applicable to the product you wish to manufacture and sell. Our standard for head restraints (Standard No. 202) applies only to completed new passenger cars and not to a head restraint device sold as an item of "aftermarket" equipment for pickup trucks.

However, there are other Federal laws that indirectly affect your manufacture and sale of the head restraint device. Under the Safety Act, your device is considered to be an item of motor vehicle equipment. As a manufacturer of motor vehicle equipment, you are subject to the requirements in sections 151-159 of the Safety Act concerning the recall and remedy of products with defects relating to motor vehicle safety. I have enclosed an information sheet that briefly describes those responsibilities. In the event that you or NHTSA determines that your head restraints contain a safety related defect, you would be responsible for notifying purchasers of the defective equipment and remedying the problem free of charge. Safety Standard No. 302, Flammability of Interior Materials (copy enclosed), would also affect your head restraint if your product is installed by a commercial business on either new or used vehicles. A manufacturer installing your head restraint device on a new truck prior to certifying the truck as complying with all applicable Federal motor vehicle safety standards, as required by the Safety Act, has certain responsibilities relating to that obligation to certify. Standard No. 302 establishes flammability resistance requirements for trucks that must be met by certain vehicle components, including head restraints. The new vehicle manufacturer that installs your product on the new vehicle would have to certify the vehicle's compliance with Standard No. 302, and thus would be required to ensure that the head restraint device conforms to the flammability resistance requirements of the standard.

A commercial business that installs the head restraint on new or used vehicles would be subject to statutory considerations that affect whether the business may install your product on a vehicle without violating the Safety Act. Section 108(a)(2)(A) of the Act states: "No manufacturer, distributor, dealer, or motor vehicle repair business shall knowingly render inoperative ... any device or element of design installed on or in a motor vehicle or item of motor vehicle equipment in compliance with an applicable Federal motor vehicle safety standard ..." This section requires manufacturers, distributors, dealers or motor vehicle repair businesses (i.e., any person holding him or herself out to the public as in the business of repairing motor vehicles or motor vehicle equipment for compensation) installing your head restraint device on new or used vehicles to ensure that the addition of the apparatus would not negatively affect the compliance of any component or design on a vehicle with applicable Federal safety standards. For example, the commercial entity must ensure that the addition of the device does not degrade from the safety provided by flammable-resistant materials in the vehicle's interior compartment which have been installed in accordance with Standard No. 302. Installation of rapidly burning materials could vitiate the compliance of the materials which were present in the vehicle at the time of its sale to the first consumer and were certified as meeting FMVSS No. 302. Section 109 of the Act specifies a civil penalty of up to $1,000 for each violation of /108.

However, the prohibitions of /108(a)(2)(A) do not apply to the actions of a vehicle owner in adding to or otherwise modifying his or her vehicle. Thus, a vehicle owner would not violate the Safety Act by installing the head restraint, even if doing so would negatively affect some safety feature in his or her vehicle.

In addition to the materials described above, I am also enclosing a Federal Register notice (53 FR 50047) that NHTSA issued on December 13, 1988, proposing to extend the applicability of Standard No. 202 to light trucks and vans. NHTSA has proposed to make this extension effective September 1, 1991. We expect to announce the agency's next step in the rulemaking proceeding by this fall.

Please feel free to contact us if you have further questions.

Sincerely,

Stephen P. Wood Acting Chief Counsel

Enclosures

/ref:VSA#202#302 d:8/7/89

ID: 19337.ztv

Mr. Bill Carpenter, Jr.
The Carpenter Group, USA
514 Chestnut Street
Pacific Grove, CA 93950-3916

Dear Mr. Carpenter:

This is in reply to your recent letter to Taylor Vinson of this Office, asking for a clarification of our letter to you dated November 20, 1998.

With reference to the security device as described in your letter to us of August 3, 1998, we informed you that "The manufacture and sale of this accessory is not subject to any Federal motor vehicle safety standard." We continued by cautioning that its installation had a "theoretical potential of affecting compliance" with Safety Standard No. 111, the Federal rearview mirror standard. You wish us to restate our advice to read "The manufacture, sale, and use of the Auto Tracker (TM) Security Beacon does not violate any current U.S. Federal motor vehicle safety standard." The purpose of your request is "so that the National Highway Traffic Safety Administration review of the product can be stated in a concise, direct, and easily understandable manner for the general public."

We cannot furnish the interpretation you seek. You have gone beyond our letter in asking us to state that the "use" of the product is not subject to any Federal motor vehicle safety standard, when our letter clearly indicated that installation of the product had the potential of affecting compliance with Standard No. 111.

I am sorry you feel that we have not stated our views "in a concise, direct, and easily understandable manner for the general public." However, our opinion was directed to you, a manufacturer who sought to understand the relationship of your product to applicable Federal requirements, and was not intended to facilitate its advertising. If you wish to use our letter for such purpose, we have no objection to your stating, as we did in

our letter of November 20, that "The manufacture and sale of this accessory is not subject to any Federal motor vehicle safety standard."

Sincerely,
Frank Seales, Jr.
Chief Counsel
ref:108#111
d.1/28/98

ID: 1933y

Mr. Robert W. Kahle
4111 Blood Road
Metamora, MI 48455

Dear Mr. Kahle:

This responds to your letters to Mr. Jettner of our Office of Vehicle Safety Standards asking about the application of Federal safety standards to your manufacture of an "aftermarket" head restraint for light trucks. Your letters have been referred to my office for reply. I regret the delay in responding.

You ask whether you need this agency's approval of your product. The answer is no. The National Highway Traffic Safety Administration (NHTSA) is authorized by the National Traffic and Motor Vehicle Safety Act (copy enclosed) to issue Federal motor vehicle safety standards that set performance requirements for new motor vehicles and items of motor vehicle equipment. NHTSA is not authorized to certify or approve motor vehicles or motor vehicle equipment for compliance with our Federal motor vehicle safety standards. Instead, under the Safety Act, each manufacturer of a motor vehicle or item of motor vehicle equipment is required to certify that its products meet all applicable safety standards.

There is currently no Federal motor vehicle safety standard that is directly applicable to the product you wish to manufacture and sell. Our standard for head restraints (Standard No. 202) applies only to completed new passenger cars and not to a head restraints sold as an item of "aftermarket" equipment for pickup trucks.

However, there are other Federal laws that indirectly affect your manufacture and sale of the head restraint device. Under the Safety Act, your product is considered to be an item of motor vehicle equipment. As a manufacturer of motor vehicle equipment, you are subject to the requirements in sections 151-159 of the Safety Act concerning the recall and remedy of products with defects relating to motor vehicle safety. I have enclosed an information sheet that briefly describes those responsibilities. In the event that you or NHTSA determines that your head restraints contain a safety related defect, you would be responsible for notifying purchasers of the defective equipment and remedying the problem free of charge.

A commercial business that installs your head restraint would be subject to provisions of the Safety Act that affect whether the business may install your product on a vehicle. Section 108(a)(2)(A) of the Act states: "No manufacturer, distributor, dealer, or motor vehicle repair business shall knowingly render inoperative ... any device or element of design installed on or in a motor vehicle or item of motor vehicle equipment in compliance with an applicable Federal motor vehicle safety standard ..." This section requires manufacturers, distributors, dealers or motor vehicle repair businesses (i.e., any person holding him or herself out to the public as in the business of repairing motor vehicles or motor vehicle equipment for compensation) installing your head restraint device on new or used vehicles to ensure that the addition of the apparatus would not negatively affect the compliance of any component or design on a vehicle with applicable Federal safety standards. For example, the commercial entity must ensure that the addition of the device does not degrade from the safety provided by flammable-resistant materials in the vehicle's interior compartment which have been installed in accordance with Standard No. 302, Flammability of Interior Materials (copy enclosed). Installation of rapidly burning materials could vitiate the compliance of the materials which were present in the vehicle at the time of its sale to the first consumer and were certified as meeting FMVSS No. 302. Section 109 of the Act specifies a civil penalty of up to $1,000 for each violation of /108.

However, the prohibitions of /108(a)(2)(A) do not apply to the actions of a vehicle owner in adding to or otherwise modifying his or her vehicle. Thus, a vehicle owner would not violate the Safety Act by installing the head restraint, even if doing so would negatively affect some safety feature in his or her vehicle.

You ask for a copy of an "order" requiring head restraints on new pick-up trucks in 1991. Please note that NHTSA has thus far only proposed to require head restraints in new light trucks and vans (10,000 pounds or less gross vehicle weight rating), and has proposed a September 1, 1991 effective date for the requirement, if the proposed rule is adopted. I have enclosed a copy of the proposal for your information. We expect to announce the agency's next step in the rulemaking proceeding shortly.

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

Sincerely,

Stephen P. Wood Acting Chief Counsel

Enclosures /ref:VSA#202#302 d:8/7/89

ID: 1934y

Mr. William L. Dunlap
Engineering Manager
Philips Industries, Inc.
Dexter Axle Division
500 Collins Road
Elkhart, IN 46515

Dear Mr. Dunlap:

This responds to your request for an interpretation of Standard No. 120, Tire Selection and Rims for Motor Vehicles other than Passenger Cars (49 CFR /571.120; copy enclosed). I apologize for the delay in this response. You stated that your company manufactures rims that you sell to other wheel manufacturers. These wheel manufacturers combine your company's rims with center disc sections of their own design to produce finished wheels for use on light trucks and trailers. Section S5.2(c) of Standard No. 120 specifies that each rim shall be marked with certain information. You asked whether your company, as the rim manufacturer, or any subsequent manufacturer that uses your company's rims to produce complete wheels is required to mark the rims in compliance with section S5.2(c). The answer is that the rim manufacturer is responsible for those markings, as explained below.

Section 108(a)(1)(A) of the National Traffic and Motor Vehicle Safety Act (15 U.S.C. 1397(a)(1)(A); the Safety Act) specifies that "No person shall manufacture for sale, sell, offer for sale, or introduce or deliver for introduction in interstate commerce, or import into the United States, any ... item of motor vehicle equipment manufactured on or after the date any applicable Federal motor vehicle safety standard takes effect under this title unless it is in conformity with such standard ..." In this case, section S5.2 of Standard No. 120 requires certain markings to appear on all newly manufactured rims for use on motor vehicles other than passenger cars. These requirements became effective August 1, 1977. Thus, section 108 of the Safety Act makes it illegal for any person to "manufacturer for sale, sell, offer for sale, or introduce or deliver for introduction in interstate commerce, or import into the United States" any rim manufactured on or after August 1, 1977 designed for use on motor vehicles other than passenger cars unless that rim is marked in accordance with section S5.2 of Standard No. 120. Your company would violate this provision of the law if you were to sell light truck rims without the required markings, even if the party to whom you sold such rims was going to use the rims to produce completed wheel assemblies.

You suggested in your letter that your company's markings on its rims used by other manufacturers to produce completed wheel assemblies may be misleading or unfair, because your company has no control over the integrity of the completed wheel assemblies. This may represent a misunderstanding of the meaning and purpose of the required rim markings. The markings and certification required on rims for motor vehicles other than passenger cars by section S5.2 of Standard No. 120 provide information about only the rims, not the entire wheel assembly. In your letter, you indicated that other wheel manufacturers simply add center discs to your company's rims to produce completed wheel assemblies. In these circumstances, the accuracy of the markings and certification put on a rim by your company as the rim manufacturer would not be affected by another manufacturer simply adding a center disc to that rim to produce a completed wheel assembly.

If you have any further questions or need additional information on this subject, please feel free to contact Marvin Shaw of my staff at this address or by telephone at (202) 366-2992.

Sincerely,

Stephen P. Wood Acting Chief Counsel

/ref:120 d:8/7/89

ID: 19359.rbm

Martha A. Geer, Esq.
Patterson, Harkavy & Lawrence
200 West Morgan St.
Raleigh, NC 27611

Dear Ms. Geer:

This responds to a request for an interpretation by this office as to whether a cellular phone charger constitutes a piece of motor vehicle equipment as that term is used in 49 U.S.C., Chapter 301, "Motor Vehicle Safety" (the Safety Act), and if so, what legal limitations apply to that product.

The product you described is designed to charge the cellular phone's battery and is intended exclusively for installation in motor vehicles. You state that installation usually occurs after the vehicle has been purchased by the consumer. The cellular phone charger operates by drawing current from the vehicle's battery.

Your first question was whether this device would be considered an item of motor vehicle equipment within the meaning of the Safety Act. 49 U.S.C. 30102(a)(7) defines, in part, the term "motor vehicle equipment" as:

(A) any system, part, or component of a motor vehicle as originally manufactured;

(B) any similar part or component manufactured or sold for replacement or improvement of a system, part, or component, or as an accessory or addition to the motor vehicle; or

(C) any device or an article or apparel (except medicine or eyeglasses prescribed by a licensed practitioner) that is not a system, part, or component of a motor vehicle and is manufactured, sold, delivered, offered, or intended to be used only to safeguard motor vehicles and highway users against risk of accident, injury, or death.

Since the product you described is not original equipment or sold for replacement or improvement of any original equipment, it would be included within this definition only if it were an "accessory." In determining whether an item of equipment is considered an accessory, the National Highway Traffic Safety Administration (NHTSA) applies two criteria. The first criterion is whether a substantial portion of the expected use of the item is related to the operation or maintenance of motor vehicles. We determine a product's expected use by considering product advertising, product labeling, and the type of store that retails the product, as well as available information about the actual use of the product. The second criterion is whether the product is intended to be used principally by ordinary users of motor vehicles. If the product satisfies both criteria, then the product is considered an "accessory" and is subject to the provisions of the Safety Act.

Applying these criteria to the cellular phone charger you have described, it appears that this product would be an accessory and is consequently an item of motor vehicle equipment under the Safety Act. NHTSA has not issued any safety standards that directly apply to the product you have described. Nevertheless, there are several statutory provisions of which you should be aware.

First, 49 U.S.C. 30122 states that "no manufacturer, distributor, dealer, or motor vehicle repair business shall knowingly make 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 compliance with an applicable Federal motor vehicle safety standard."

If installing the charger would adversely affect compliance with a safety standard, then it would "make inoperative" a design element in compliance with a Federal motor vehicle safety standard. A manufacturer, distributor, dealer, or repair business who committed such an act would be subject to a civil penalty of up to $1100 for each violation. Since the statute is limited to manufacturers, distributors, dealers, and motor vehicle repair businesses, a vehicle owner would not violate the Act by installing the device even if doing so would adversely affect some safety feature in his or her vehicle or equipment.

Second, the manufacturer of the charger would be a motor vehicle equipment manufacturer. The manufacturer would be subject to the notification and remedy requirements for products with defects related to motor vehicle safety (49 U.S.C. 30118-30121). A "defect" includes "any defect in performance, construction, a component, or material of a motor vehicle or motor vehicle equipment." "Motor vehicle safety" is defined as "the performance of a motor vehicle or motor vehicle equipment in a way that protects the public against unreasonable risk of accidents occurring because of the design, construction, or performance of a motor vehicle or motor vehicle equipment performance." 49 U.S.C. 30102.

If the manufacturer or NHTSA determined that the product had a defect related to motor vehicle safety, the manufacturer would have to notify all product purchasers of the defect, and either:

1. Repair the product so that the defect is removed; or

2. Replace the product with an identical or reasonably equivalent product that does not have the defect.

The manufacturer would have to bear the full expense of the recall campaign, irrespective of the option chosen, for any owner who purchased the product less than eight years before the determination that defect existed

I hope you find this information helpful. If you have further questions about NHTSA's safety standards, please feel free to contact Rebecca MacPherson of my staff at this address or by telephone at (202) 366-2992.

Sincerely,
Frank Seales, Jr.
Chief Counsel
ref:VSA
d.6/23/99