ID: aiam5400

"Dear Sir/Madam: This responds to your letter to this office regardin your reconstruction of an accident involving a 16-passenger school bus. I apologize for the delay in responding. You stated in your letter that the original latch/hinge mechanism of the right front entrance door of the bus in question was disabled by removal of the striker plate and equipped instead with a remote door opening/closing apparatus and latching mechanism. The bus was involved in an accident in which the driver was ejected through that door. You then asked a series of questions concerning the classification of the vehicle and the Federal safety standards pertaining to the door in question. By way of background, the National Traffic and Motor Vehicle Safety Act, 15 U.S.C. 1381, et seq. (Safety Act), authorizes the National Highway Traffic Safety Administration (NHTSA) to issue Federal motor vehicle safety standards (FMVSS) applicable to new motor vehicles and new items of motor vehicle equipment. The Safety Act establishes a self-certification system in which manufacturers are responsible for certifying that the vehicle or equipment complies with all applicable FMVSSs in effect on the date of manufacture. Once the vehicle or equipment has been sold to the first customer for purposes other than resale, Federal jurisdiction over the manufacture and sale of the vehicle or equipment generally terminates and use of the vehicle or equipment becomes a matter of state jurisdiction. You first asked, 'Would this vehicle be classified as a multi-purpose passenger vehicle, a bus, or a school bus?' The answer to your question is that each manufacturer classifies its vehicles in accordance with the definitions set forth in the Safety Act and in NHTSA's regulations. The Safety Act defines a 'school bus' as A passenger motor vehicle which is designed to carry more than 10 passengers in addition to the driver, and which the Secretary determines is likely to be significantly used for the purpose of transporting primary, preprimary, or secondary school students to or from such schools or events related to such schools. 15 U.S.C. 1391(14). Our regulations define a 'bus' as a motor vehicle designed to carry more than 10 persons, and further define a 'school bus' as a bus that is sold for purposes that include carrying students to and from school and related activities, but does not include a bus sold for operation as a common carrier in urban transportation. 49 CFR 571.3. Thus, whether a vehicle is a school bus under our regulations depends on the purpose for which it was originally sold. Although you did not indicate who purchased the bus originally and for what purpose, you referred to the vehicle in your letter as a 'mini school bus,' you stated that the body was manufactured by Mid Bus, a school bus manufacturer, and the descriptive literature you enclosed with your letter depicts different models of small school buses manufactured by Mid Bus. Accordingly, it appears the vehicle in question would have been classified as a school bus under 49 CFR 571.3. Our regulations require the vehicle manufacturer to state the vehicle type classification on the vehicle's certification label. The certification label of the vehicle in question should have that information. Your second question asks, 'Does FMVSS 206 and/or FMVSS 217 apply to the right front entrance door of this vehicle?' With respect to FMVSS 206, Door locks and door retention components, the answer is no. Standard 206 applies only to passenger cars, multipurpose passenger vehicles, and trucks. The standard does not apply to buses. With respect to FMVSS 217, Bus emergency exits and window retention and release, the standard specifies requirements for window retention other than windshields in buses, except buses designed to transport persons under restraint, and establishes operating forces, opening dimensions, and markings for emergency exits. The glazing requirements of S5.1 of FMVSS 217 would apply to the right front entrance door, and if the door was also used as an emergency exit, it must also have complied when new with the emergency exit requirements of S5.2.3, S5.3, S5.4.2, and S5.5.3 of the standard. Your third question asked, 'Which FMVSS would apply to the right front entrance door (particularly its loading requirements)?' The answer is that apart from the provisions of FMVSS 217 discussed in our answer to your second question, there was no FMVSS in 1988 that specified performance standards for the right front entrance doors of buses. Effective September 1, 1993, however, the side door strength requirements of FMVSS 214, Side Impact Protection, will apply to 90 percent of the buses with a gross vehicle weight rating (GVWR) of 10,000 pounds or less produced after that date, and all buses with a GVWR of 10,000 pounds or less produced on and after September 1, 1994, must comply with those requirements. I would like to make the following observation about the modification of the door in question. Modifications of new and used vehicles by commercial parties are subject to 108(a)(2)(A) of the Safety Act (15 U.S.C. 1397(a)(2)(A)). That section prohibits any manufacturer, distributor, dealer, or vehicle repair business from knowingly rendering inoperative any device or element of design installed on or in a vehicle in compliance with a Federal motor vehicle safety standard. In this case, your letter did not indicate who disabled the original latch mechanism on the vehicle or who installed the remote door latch mechanism. If the work was done by a party listed in 108(a)(2)(A), the person modifying the vehicle was responsible for not degrading the performance of the door with regard to FMVSS 217. Section 108(a)(2)(A) does not apply to individual vehicle owners. Thus, vehicle owners can modify the vehicle in any manner he/she chooses without violating any Federal requirements. I hope this information answers your questions. We have enclosed copies of FMVSS 206 and 217 that were effective in 1988, photocopied from the October 1, 1987 edition of the Code of Federal Regulations, as you requested. Should you have other questions, please feel free to contact Walter Myers of my staff at this address or at (202) 366-2992. Sincerely, John Womack Acting Chief Counsel Enclosures";

ID: aiam3110

Dear Mr. Reeves: This is in response to your letter of July 24 and your telephon conversation with Ms. Debra Weiner of my office in which you inquired about the Federal law applicable to the manufacture and use of auxiliary fuel tanks. You indicated that your client will be in the business of manufacturing auxiliary fuel tanks for use in passenger vehicles and on farm equipment. Most of the tanks will apparently be designed for mounting on the vehicles without connection to the vehicle fuel system, although some will be built with some connections.; Below is a discussion of questions numbered 1 and 6 in your letter, a well as a general discussion of the law applicable to the installation of both types of auxiliary tanks. Following is a brief discussion of the questions numbered 2-5 in your letter.; The National Traffic and Motor Vehicle Safety Act, as amended 1974 (the Act) authorizes the National Highway Traffic Safety Administration (NHTSA) to issue Federal motor vehicle safety standards applicable either to entire motor vehicles or to equipment for installation in motor vehicles. Agricultural equipment is not encompassed by the term 'motor vehicle' because Congress clearly did not intend that such equipment be within the coverage of the Act. Therefore, none of the Federal motor vehicle safety standards are applicable to farm equipment and the rest of this letter will be concerned only with passenger vehicles.; Safety Standard No. 301-75, *Fuel System Integrity*, is a vehicl standard which applies to certain vehicles, including passenger cars, that use fuel with a boiling point above 32 degrees F. The standard applies to completed vehicles rather than to fuel tanks or other fuel system components and thus is inapplicable to the manufacture of auxiliary fuel tanks.; Despite the inapplicability of Safety Standard No. 301-75 to thei manufacture, auxiliary fuel tanks of either type you have mentioned must be designed and manufactured for safety. As a manufacturer of auxiliary fuel tanks, your client would be subject to the defects responsibility provisions of the Act (section 151 *et seq*). Upon discovery of a safety-related defect by the Secretary of Transportation, the NHTSA Administrator, or the manufacturer himself, your client, as a manufacturer, would be required to notify vehicle owners, purchasers, and dealers and remedy the defect.; A person who installs an auxiliary fuel tank in a new vehicle prior t its first purchase in good faith for purposes other than resale would be a vehicle alterer under NHTSA regulations if that person modified the vehicle during the installation. As an alterer, your client would be required by 49 CFR 567.7 to affix an additional label to the vehicle stating that, as altered, the vehicle conforms to all applicable Federal motor vehicle safety standards--including Safety Standard No. 301-75. Should a noncompliance or safety-related defect be discovered in such a vehicle, as a result of the modification, your client would be responsible for notifying vehicle owners and remedying the noncompliance or defect.; If your client connects auxiliary gasoline tanks to used passenge vehicles, he or she would not be required to attach an alterer's label. However, section 108(a)(2)(A) of the Act would apply. Section 108(a)(2)(A) provides in relevant part that:; >>>No manufacturer, distributor, dealer, or motor vehicle repai business shall knowingly render inoperative, in whole or part, any device or element of design installed on or in a motor vehicle or item of motor vehicle equipment in compliance with an applicable Federal motor vehicle safety standard. . .<<<; Thus, if your client added an auxiliary tank of either type mentione in your letter to a used passenger vehicle manufactured in accordance with Safety Standard No. 301- 75 and other standards, and in the process knowingly rendered inoperative the compliance of the fuel system or other systems, he or she would have violated section 108(a)(2)(A).; For example, if your client mounted a tank on the exterior of vehicle, without connection to the fuel system, and one of the mounting bolts caused the existing fuel system to leak in an amount in excess of that permitted by Safety Standard no. 301-75, he would be in violation of section 108(a)(2)(A). Depending upon the way in which he attached the tank to the vehicle or to its fuel system your client could also violate sections 108(a)(2)(A) with respect to other safety standards including, but not limited to, the Bumper Standard (49 CFR 581), and Standard No. 108, *Lamps, Reflective Devices, and Associated Equipment*.; >>>Questions 2, 3, and 4.<<< According to the Federal Highway Administration which administers th Federal Motor Carrier Safety Regulations, they apply only to motor carriers and not to passenger vehicles that are not involved in interstate commerce. If you have further questions you might wish to contact the Federal Highway Administration directly.; >>>Question 5. Do 49 C.F.R. 171 *et seq*. which regulate th transportation of certain hazardous materials apply to the private carrying of such materials on passenger vehicles or farm equipment?<<<; These regulations are administered by the Research and Special Program Administration, which informs me that the Federal regulations applying to hazardous materials concern the transportation of hazardous materials in commerce. Thus far, the regulations have not been applied to the private carrying of hazardous materials, such as gasoline, in a passenger vehicle or farm machine. If you have further questions you might wish to contact the Research and Special Programs Administration.; In conclusion, please note that, in general, the National Highwa Traffic Safety Administration discourages the use of auxiliary fuel tanks of any kind because of the grave dangers of fire and explosion posed by their improper manufacture or installation. In the near future this agency will be making a press release warning consumers of these hazards and discouraging them from using auxiliary fuel tanks.; I hope that you will find this response helpful and that you have no been inconvenienced by our delay in sending it to you.; Sincerely, Frank Berndt, Chief Counsel

ID: aiam3880

Dear Mr. Tsujishita: This responds to your letter of November 26, 1984, requesting severa interpretations of Standard Nos. 201, 208, and 210. The answers to your questions raised in Attachments I, II, and III of your letter are discussed below.; In attachment I of your letter, you asked about the requirement o S3.5.1(c) of Standard No. 201. You were specifically concerned about the language which provides that the length of the armrest is to be measured vertically in side elevation. You provided a drawing of an armrest and asked if the length is to be measured as shown in section (dimension) b of your Figure 1.; The purpose of the requirement is to ensure that there is at last inches of coverage within the pelvic impact area. For this requirement to be meaningful, the covered surface must be contactable by the vehicle occupant. The vehicle occupant would not contact the base of the arm rest illustrated in your drawing. Therefore, the measurement should be made at dimension a in section A-A or dimension c in section B-B as shown in your Figure 1.; On question one of Attachment II, you asked about the application o Standard Nos. 208 and 209 to a safety belt system you are developing to meet S4.1.2.1 of Standard No. 208. The system consists of a two point automatic belt and a Type 1 manual safety belt. You asked which requirements of Standard No. 209 apply to such an automatic belt. I have enclosed an interpretation letter of August 7, 1981 to Volkswagen which explains the application of Standard No. 209 to an automatic belt.; In question two of Attachment II, you state that your vehicle will hav four anchorages for each front outboard seating position (two anchorages for the automatic belt and two for the Type 1 seat belt assembly). You said that S4.4.1 of Standard No. 210 requires seat belt anchorages for Type 2 safety belts at each front outboard seating position and you asked what is meant by anchorages for a Type 2 belt. You also asked whether you must install any other anchorages at those positions in your vehicle.; Paragraph S4.1.1. of Standard No. 210 requires anchorages for a Type seat belt assembly to be installed for each forward-facing outboard designated seating position in passenger cars. This is true regardless of whether the seating position is equipped with an air bag and a lap belt, with a single diagonal automatic belt or with any other system. Safety Standard No. 210 is independent of Safety Standard No. 208, *Occupant Crash Protection*. A Type 2 belt requires three anchorages (two for the lap portion of the belt and one for the upper torso restraint). The presence of the Type 2 anchorages in vehicles will allow vehicle owners to install easily Type 2 belts at their own initiative if they desire to do so for whatever reason. For example, if a single diagonal automatic belt system has been damaged, an owner may wish to replace it with a Type 2 manual belt system.; Under paragraph S4.3 of Safety Standard No. 210, anchorages fo automatic belts are exempted from the location requirements of the standard. This exception was provided for in the standard to allow manufacturers to experiment with various automatic belt designs to determine the optimum anchorage locations in terms of both effectiveness and comfort (43 FR 53440, Nov. 16, 1978). If, however, anchorage points for an automatic belt do not fall within the location specified in the standard for Type 2 belts, the manufacturer would have to provide additional anchorage points that could be used by a properly located Type 2 manual belt. Thus if your lap belt and upper torso anchorages fall within the location requirements for Type II belts, you would not have to provide any additional anchorages.; In question three of Attachment II, you asked what strength tes applies to anchorages used with an automatic belt and to the manual lap belt used in your system. You illustrated the test procedures you plan to use in your Figure 3. As explained below, the procedure shown in Figure 3(1) is correct and the procedure shown in Figure 3(2) is partially correct.; The agency has stated in an interpretation letter of July 23, 1980 t Mazda that the anchorages for a single diagonal automatic belt should be tested with a 3,000-pound force for purposes of Standard No. 210, in accordance with the test procedures of paragraph S5.2. This is the same force that is required for testing the upper torso portion of a Type 2 seat belt system. This force requirement is applicable whether the single diagonal automatic belt is used alone or whether it is used in conjunction with a manual lap belt. The anchorages for the manual lap belt, however, would be required to withstand test forces of 5,000 pounds under paragraph S4.2.1 for Standard No. 210. The anchorages for the manual lap belt and for the automatic belt must separately meet their respective force requirements and would not have to be tested simultaneously since they are separate systems.; In question one of the Attachment III, you requested the agency t clarify the words 'fold' and 'tumble' used in S7.4.6 of Standard No. 208. You stated your understanding that 'fold' means to move the seat back forward as shown in your Figure 4-a and 'tumble' means to move both the seat cushion and seat back forward as shown in your Figure 4-b. Your understanding of both words is correct.; In question two of Attachment III, you asked the meaning of the wor 'receptacle' as used in paragraph S7.4.6.2 of Standard No. 208. The word 'receptacle' refers to the devices into which an occupant would insert the tang of a safety belt to fasten the belt.; I hope this satisfactorily answers your questions. Sincerely, Frank Berndt, Chief Counsel

ID: aiam3496

Dear Messrs. Newmayer and Corbett: This responds to your letter of May 26, 1981, regarding Safety Standar No. 205, *Glazing Materials*. Please accept my apologies for the lateness of our response. You request permission to install a 'Ballistic Cube 2000' in 500 motor vehicles over a two-year period for experimental purposes. The 'Ballistic Cube 2000' is a protective cubicle made of Lexgard that is installed inside a vehicle. Lexgard, a bullet-resistant material, does not comply with all the requirements of Standard No. 205. You urge us to grant your request on the basis that the data generated form such an experiment would be relevant to a rulemaking proceeding initiated by General Electric. (General Electric has petitioned NHTSA to amend Standard No. 205 to permit the use of protective bullet- resistant shields in vehicles. The agency granted this petition on November 28, 1980.); Standard No. 205 is an equipment standard which applies to all glazin materials used in passenger cars, buses, trucks, and multipurpose passenger vehicles. All automotive glazing materials, including those used in the Ballistic Cube 2000, must conform to the standard's requirements. Section 108(a)(1)(A) of the National Traffic and Motor Vehicle Safety Act of 1966 (the Act) provides in part that no person shall sell or manufacture for sale any item of motor vehicle equipment that does not comply with any applicable federal motor vehicle safety standard in effect on the date of the item's manufacture. Thus, if you were to manufacture for sale or sell a Ballistic Cube 2000 made of Lexgard or any other glazing material that does not comply with Standard No. 205, you would be in violation of section 108(a)(1)(A). (Section 108(b)(5) establishes that section 108(a)(1)(A) does not apply when the motor vehicle or item of motor vehicle equipment is intended solely for export and is so labeled.) Section 109 imposes a civil penalty up to $1,000 for each violation of Section 108.; We believe that installation of the Ballistic Cube 2000 in moto vehicles could possibly generate test data that could be valuable to the agency in the previously mentioned rulemaking proceeding. Unfortunately, however, NHTSA does not have the legal authority to grant you permission to make such an installation. NHTSA does not have statutory authority to exempt an equipment manufacturer from the requirements of Section 108(a)(1)(A) as it relates to motor vehicle equipment.; Section 123 of the Act authorizes the exemption of motor vehicles fro the safety standards. However, it does not authorize the exemption of motor vehicle equipment form equipment standards. As noted above, Standard No. 205 is an equipment standard applicable to glazing. Consequently, no exemption can be granted under section 123 that would excuse manufacturing, offering for sale or selling noncomplying glazing as part of the vehicles you wish to modify and sell, since you would also be considered an equipment manufacturer.; While the agency cannot grant you an exemption, it is pursing th request made by G.E. regarding Lexgard. The agency anticipates issuing a notice of proposed rulemaking before the end of this year. If a final rule permitting the use of Lexgard were issued, you could commence manufacturing and installation of the Ballistic Cubes upon the effective date of that rule.; Even if that rule is issued, there may be other standards which must b considered. As we understand your materials, the installation of the Ballistic Cube 2000 in motor vehicles may affect the compliance of those vehicles with FMVSS No. 103, *Windshield Defrosting and Defogging Systems*, and FMVSS No. 201, *Occupant Protection in Interior Impact*. If you were to install a Ballistic Cube in a new vehicle, i.e., one that had not yet been purchased for purposes other than resale, you would violate section 108(a)(1)(A) if the vehicle no longer complied with one of those standards. Of course, since Standard Nos. 103 and 201 are vehicle standards, you could apply for an exemption from those standards. Section 108(a)(2)(A) of the Act would prohibit you from installing the Ballistic Cube in a used vehicle if such installation would destroy the vehicle's compliance with Standard 103 and 201.; The agency cannot definitively state whether installation of your cub in a motor vehicle would effect the compliance of the vehicle with Standard Nos. 201 or 103. NHTSA does not offer prior approval of compliance of any vehicle or equipment design with any safety standard before the manufacturer's certification of its product. It is the manufacturer's responsibility under the Act to determine whether its vehicle or equipment complies with all applicable safety standards and regulations and to certify its vehicle or equipment in accordance with that determination The agency is willing to offer an opinion on whether a vehicle or motor vehicle equipment complies with particular rule. Such an opinion is not binding on the agency or on the manufacturer. However, the information you have provided in your letter does not give us a sufficient basis on which to form an opinion. It would probably be difficult for the agency to offer an opinion concerning your compliance with Standard 203 regardless of the information you supplied, since that standard involves a dynamic performance test.; Apart from the requirements imposed by section 108(a)(1)(A) regardin compliance with safety standards, manufacturers of motor vehicle equipment also have general responsibilities under the Act regarding safety defects. Under section 151 *et seq*., such manufacturers must notify purchasers about safety-related defects and remedy such defects free of charge. Section 109 imposes a civil penalty of up to $1,000 upon any person who fails to provide notification of or remedy for a defect in motor vehicle equipment.; I am sorry we are unable to accommodate you in this matter. However since it is beyond our legal authority to do so, we have no choice but to make the decision set forth in this letter. Please contact this office if you have any questions.; Sincerely, Frank Berndt, Chief Counsel

ID: aiam4357

Dear Mr. Brinsmade: This responds to your request for information regarding Federa regulation of semi-trailer manufacturing. You asked about Federal standards applicable to 'pneumatic aluminum tank type semi-trailers' which your client wishes to manufacture abroad and import into the United States. You were particularly concerned about specifications for aspects of the vehicle which pneumatically load and discharge substances into and out of the tank unit.; I would like to take this opportunity to provide some backgroun information concerning this agency's regulations. You are correct that the National Highway Traffic Safety Administration (NHTSA) administers Federal regulations for the manufacture and sale of new motor vehicles, including semi-trailers. NHTSA is authorized, under the National Traffic and Motor Vehicle Safety Act, to issue safety standards applicable to new motor vehicles and items of motor vehicle equipment. As you are aware, however, NHTSA does not approve motor vehicles or motor vehicle equipment, nor do we endorse any commercial products. Instead, the Vehicle Safety Act establishes a 'self-certification' process under which each manufacturer is responsible for certifying that its products meet all applicable requirements. (A general information sheet describing manufacturers' responsibilities under the Vehicle Safety Act is enclosed.); We note that the term 'manufacturer' is defined by section 102(5) o the Act to mean 'any person engaged in the manufacturing or assembling of motor vehicles or motor vehicle equipment, *including any person importing motor vehicles of motor vehicle equipment for resale*.' (Emphasis added.) Therefore your client, as a manufacturer of motor vehicles, is responsible for certifying compliance with all applicable motor vehicle safety standards. The procedure, specified in 49 CFR Part 567, requires also that the manufacturer provide safety information on the certification label, including the vehicle's gross vehicle weight rating and gross axle weight rating.; At this time, the only safety standards applicable to all trailers ar Safety 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 Identification Number--Basic Requirements*. The content requirements for the identification number are found at Part 565. Your client's trailers also must meet Standard No. 106, *Brake hoses*, Standard No. 116, *Motor vehicle brake fluids*, and applicable requirements of Standard No. 121, *Air brake systems*. These standards are found in 49 CFR Part 571.; You were particularly concerned about Federal standards applicable t the pneumatic tank of the semi-trailer. There are no Federal motor vehicle safety standards for pneumatic tank units. However, even in the absence of an applicable safety standard, the Vehicle Safety Act imposes general responsibilities on manufacturers of motor vehicles and motor vehicle equipment regarding safety defects. Manufacturers of motor vehicles and motor vehicle equipment are responsible generally for ensuring that vehicles and equipment they manufacture are free from safety-related defects and can perform their intended function safely. If your client or the agency determines that a safety- related defect or noncompliance exists, your client is obligated under section 151 *et seq*. of the Act to notify purchasers of its product and remedy the problem without charge. Manufacturers who fail to provide notification of or remedy for a defect or noncompliance may be subject to a civil penalty of up to $1,000 per violation.; In addition to the regulations described above, your client should b aware of two procedural rules which apply to all manufacturers subject to the regulations of this agency. The first is 49 CFR Part 566, *Manufacturer Identification*. This rule requires your client to submit its name, address, and a brief description of the items of equipment it manufacturers to this agency within 30 days after it imports its products into the United States.; The other rule is 49 CFR Part 551, *Procedural Rules*. Subpart D o this regulation requires all manufacturers headquartered outside of the United States to designate a permanent resident of the United States as the manufacturer's agent for service of all process, notices, orders and decisions. This designation should be mailed to the Chief Counsel, National Highway Traffic Safety Administration, 400 Seventh Street, S.W., Washington, DC 20590, and must include the following information:; 1. A certification that the designation is valid in form and binding o the manufacturer under the laws, corporate by-laws, or other requirements governing the making of the designation at the time and place where it is made,; 2. The full legal name, principal place of business and mailing addres of the manufacturer,; 3. Marks, trade names, or other designation of origin of any of th manufacturer's products which do not bear its name,; 4. A statement that the designation shall remain in effect unti withdrawn or replaced by the manufacturer.; 5. A declaration of acceptance duly signed by the agent appointed which may be an individual, a firm or a U.S. corporation, and; 6. The full legal name and address of the designated agent. In addition, the designation must be signed by one with authority t appoint the agent. The signer's name and title should be clearly indicated beneath his or her signature.; You asked whether your client's semi-trailers would be affected b regulations administered by other Federal agencies. If the semi-trailer will be used to transport a material designed by the Secretary of Transportation as a 'hazardous material' (see 49 CFR Part 172), then the transportation of that material is regulated by the Office of Hazardous Materials Transportation of the Research and Special Projects Administration (RSPA). You can contact the director of that office, Mr. Alan Roberts, at 366-0656 for more information on RSPA's regulations. In addition, you might be interested in information about regulations for interstate motor carriers issued by the Federal Highway Administration. Mr. Tom Kozlowski of the Office of Motor Carrier Standards, Federal Highway Administration, can provide you with more information. He may be reached at this address, Room 3403, or by telephone at (202) 366-1790.; I hope this information has been helpful. Sincerely, Erika Z. Jones, Chief Counsel

ID: aiam4767

"Dear Ms. Dittemore: Thank you for your letter regarding a bil introduced in the Iowa Senate that, among other features, would establish light transmittance limits for 'sunscreening devices' that may be applied to the windows of motor vehicles operated in Iowa. I apologize for the delay in this response. You requested our office's interpretation about whether provisions of this bill would violate or be preempted by Federal Motor Vehicle Safety Standard No. 205, Glazing Materials (49 CFR 571.205). As you are aware, this agency is authorized by section 103 of the National Traffic and Motor Vehicle Safety Act (15 U.S.C. 1392) to issue safety standards applicable to new motor vehicles and certain items of motor vehicle equipment. One of the standards that we have issued under this authority is Standard No. 205, which applies to all new vehicles and all new glazing materials for use in motor vehicles. Among the requirements set forth in Standard No. 205 are specifications for minimum levels of light transmittance (70 percent light transmittance in areas requisite for driving visibility, which includes all windows in passenger cars). Section 108(a)(1)(A) of the Safety Act (15 U.S.C. 1397(a)(1)(A)) specifies that no person may manufacture, import, or sell any vehicle in the United States unless it is in conformity with all applicable safety standards. Pursuant to section 108(b)(1) of the Safety Act (15 U.S.C. 1397(b)(1)), this prohibition no longer applies after the vehicle is sold to a consumer. However, both before and after the first sale, section 108(a)(2) of the Safety Act (15 U.S.C. 1397(a)(2)) provides that 'No manufacturer, distributor, dealer, or motor vehicle repair business shall knowingly render inoperative, in whole or part, any device or element of design installed on or in a notor vehicle or item of motor vehicle equipment in compliance with an applicable Federal motor vehicle safety standard . . . .' In the case of windows on a passenger car, this provision of Federal law means that no manufacturer, dealer, distributor, or repair business could install window tinting film that would result in a light transmittance of less than 70 percent for any window of the car, because such action would 'render inoperative' the vehicle's compliance with Standard No. 205. This same provision of Federal law prohibits a service station from permanently removing safety belts or permanently disconnecting brake lines on motor vehicles. Please note that the Safety Act does not apply to the actions of vehicle owners. Vehicle owners may alter their own vehicles and operate them on the highways as they please, even if the vehicle's windows no longer comply with the requirements of Standard No. 205. Hence, no provision of a Federal statute or this agency's regulations prevents individual vehicle owners themselves from tinting the windows on their vehicles. The individual States, however, have the authority to regulate the modifications that vehicle owners may make to their own vehicles and to establish requirements for vehicles operated or registered in that State. The Iowa Senate bill enclosed with your letter appears to be an attempted exercise of this inherent authority. You asked for comments on whether this bill, if adopted as law in Iowa, would be preempted by Standard No. 205. I assume you were referring to the provision in this Iowa bill that would prohibit the operation of motor vehicles required to be registered in the State of Iowa if the vehicle has a 'sunscreening device' on the front side windows with light transmittance of less than 35 percent or on the rear window and side windows behind the driver with light transmittance of less than 20 percent. Since the original glazing on the vehicle could have had light transmittance of as little as 70 percent, this provision would permit overall light transmittance levels of as low as 25 percent for the front side windows and 14 percent for the rear windows. This provision in the Iowa bill, and similar provisions in statutes adopted by other States, does not purport to legitimize conduct -- the rendering inoperative of glazing by firms installing window tinting -- that is illegal under Federal law. In other words, firms installing window tinting that results in light transmittance of less than 70 percent on any window of a passenger car would have violated the 'render inoperative' provision in Federal law, even if Iowa had in place a statute that would permit persons to operate and register vehicles whose windows had light transmittance that was far lower. Conversely, the Federal law setting requirements for the manufacture and sale of new vehicles and limiting the modifications commercial enterprises can make to those vehicles does not prohibit the State of Iowa from establishing lesser limits on owner modifications to their own vehicles and as the minimum requirements for vehicles to be operated and registered in the State of Iowa. Thus, there does not appear to be any legal conflict between Federal law and this Iowa bill, and Iowa would be free to enforce the provisions of this bill if it is enacted into law. We would, however, urge the State of Iowa to carefully consider the adverse safety consequences that would result from enacting this bill into law. NHTSA has determined that a 70 percent light transmittance minimum for new vehicles is the appropriate level to assure motor vehicle safety. Your letter indicated that Iowa had also adopted this 70 percent light transmittance minimum as a State requirement for new vehicles. It is not clear why the State of Iowa would conclude that the safety need that justifies requiring not less than 70 percent light transmittance in new vehicles is satisfied by allowing light transmittance levels as low as 25 and 14 percent in vehicles to be operated in the State. I hope that this information is helpful. If you have any further questions or need additional information about this topic, please feel free to contact Dorothy Nakama of my staff at this address or by telephone at (202) 366-2992. Sincerely, Paul Jackson Rice Chief Counsel";

ID: aiam4604

"Dear Mrs. Kozak: Thank you for your letter concerning the applicabl classification and regulation of a three-wheeled vehicle manufactured by Cushman. I was saddened to learn that your husband died while operating such a vehicle at his job. Before addressing your specific questions, I would like to provide some general background information about this agency's laws and regulations. Our agency, the National Highway Traffic Safety Administration (NHTSA), is authorized by the National Traffic and Motor Vehicle Safety Act (the Safety Act) to issue safety standards applicable to new 'motor vehicles' and new items of 'motor vehicle equipment.' The Safety Act defines a motor vehicle as: any vehicle driven or drawn by mechanical power manufactured primarily for use on the public streets, roads, and highways, except any vehicle operated exclusively on a rail or rails. According to your letters, there are two different models of the three-wheeled Cushman vehicle. One of these models is intended solely for off-road use. This model would not be a 'motor vehicle' within the meaning of the Safety Act, so NHTSA has no authority to regulate this model. The other model is intended for use on the public roads. According to your letter, your husband was operating the on-road model at his job. The on-road model plainly appears to be a 'motor vehicle' for the purposes of the Safety Act. Cushman and every other manufacturer of motor vehicles must certify that each of their vehicles complies with all applicable safety standards. Both eighteen-wheel tractor trailers and motor scooters are 'motor vehicles' within the meaning of the Safety Act, but the safety standards specify different requirements for those two types of vehicles. To determine the applicable requirements in the safety standards, one must determine into which of several vehicle classes the vehicle in question will fall. As our Associate Administrator for Rulemaking explained in his July 25, 1988 letter to Chairman Florio, the on-road model of the Cushman three-wheeled vehicle would appear to be classified as a 'motorcycle' for the purposes of our safety standards. NHTSA has authority to regulate the manufacture and sale of motor vehicles and items of motor vehicle equipment. Thus, the Safety Act prohbits any person from manufacturing, importing, or selling any new vehicle that does not comply with all applicable safety standards. See 15 U.S.C. 1397(a)(1)(A). The Safety Act also required Cushman to certify that each of its on road three-wheeled vehicles conformed to all applicable safety standards. See 15 U.S.C. 1403. Additionally, the Safety Act requires Cushman to recall and repair those vehicles if either Cushman or this agency determine that the vehicles contain a defect related to motor vehicle safety. See 15 U.S.C. 1411-1419. It is the individual State, Massachusetts in this case, that has authority to regulate the operation and use of motor vehicles in that State. I would now like to respond to the particular statements and concerns expressed in your letters. Statement One: You said: 'I feel a determination should be made as to what agency should regulate the use of this vehicle on the Public Highways and the person required to operate should be warned of the hazards inherent in the unit.' (emphasis added) Response: As explained above, NHTSA cannot regulate the operation or use of these vehicles. That is a question that is entirely within the authority of the State of Massachusetts. You may wish to express to the appropriate persons in the State of Massachusetts your belief that the State ought to regulate the operation and use of these vehicles. Statement Two: You then noted that 'similar units are presently being used in the Commonwealth without a seat belt despite the fact that the Registry of Motor Vehicles considers them to be motor vehicles and not motorcycles.' Response: This statement suggests that you may have some uncertainties about the relationship of the vehicles called 'motorcycles' to the larger vehicle group called 'motor vehicles.' As explained above, for the purposes of Federal law, 'motorcycle' is a subset within the broad category of 'motor vehicles.' Other subsets of 'motor vehicles' include 'passenger car,' 'truck,' and 'bus.' Thus, for Federal purposes, all motorcycles are motor vehicles. Our July 25, 1988 letter to Chairman Florio indicated that the on-road version of the Cushman three-wheeled vehicle is a motor vehicle that would appear to be classified as a 'motorcycle.' Our safety standard that requires most motor vehicles to be equipped with safety belts or other types of occupant crash protection is Standard No. 208, Occupant Crash Protection (49 CFR 571.208). However, this standard does not apply to vehicles classified as motorcycles. Accordingly, none of our safety standards require Cushman to install safety belts on these vehicles. Statement Three: You noted that this vehicle 'does not have a solid door, only a canvas one.' Response: Our safety standard that specifies requirements for side doors on vehicles is Standard No. 214, Side Door Strength (49 CFR 571.214). Standard No. 214 currently applies only to passenger cars. Since the vehicle in question is a 'motorcycle,' our safety standards do not require the manufacturer to provide doors on it. Statement Four: You suggested that the hospital and its employees 'were possibly subjected to a fraudulent act,' because the vehicle did not indicate a helmet is required when operating the Cushman vehicle. Response: You are correct in assuming that the State of Massachusetts has a motorcycle helmet use law for all riders. If you are interested in learning more details about that law, you may wish to contact the appropriate persons in the Massachusetts state government. I hope this information is helpful. If you have any further questions or need some more information on this subject, please do not hesitate to contact Mr. Marvin Shaw of my staff at this address, or by telephone at (202) 366-2992. Sincerely, Stephen P. Wood Acting Chief Counsel";

ID: 10117-2

Mr. Hai Tee Young
10313 Lower Azusa Road
Temple City, CA 91780

Dear Mr. Young:

This responds to your August 14, 1995, letter to the Secretary of Transportation asking whether there are any Federal regulations prohibiting your sunshade invention. The Secretary referred your letter to me because the National Highway Traffic Safety Administration (NHTSA) is the Department of Transportation agency that issues Federal motor vehicle safety standards (FMVSS's) for new motor vehicles and new items of motor vehicle equipment. From the patent application materials and drawings you enclosed with your letter, your invention appears to be venetian blind-type slats for use as a sunshade device on all windows of a motor vehicle, especially the windshield.

In a September 6, 1995 phone conversation with Paul Atelsek of my staff, you stated that you were not concerned about confidentiality of this public letter, even though your patent application has not been made. You also indicated that you wanted us to supplement your letter with additional drawings and letters. We received those materials by facsimile on September 18, 1995.

Let me briefly review the important points of your letter. The blinds for side windows are depicted as being attached to hooks above and below the windows. For the windshield, they are attached to the existing sunvisor and the dashboard. In these drawings, blind deployment appears to be manual and require two hands. However, you state that you could also design the slats to be installed between two layers of glass and have them adjusted either manually or by electric automatic control. You believe that in a crash the blinds would cushion unbelted vehicle occupants before they hit the glass.

The short answer to your question is that, while there are no regulations that directly prohibit your invention, there are Federal requirements that it must satisfy. We also have some safety concerns regarding this invention.

The FMVSS most relevant to your blinds is Standard No. 205, Glazing materials. Among other things, this standard requires the glazing to permit 70 percent of the incident light to be passed through the window material. The purpose of the 70 percent light transmissibility requirements in Standard No. 205 is to ensure that the driver can adequately view the driving environment through all the windows that are requisite for driving visibility (which includes all windows in passenger cars). Installation of your blinds as proposed would not cause a noncompliance with Standard No. 205 because the test procedures do not incorporate an in-vehicle test. Instead, they contemplate testing only of the glazing itself. Your blinds need not comply with the standard either by themselves (because they do not meet the definition of glazing) or in combination with windows (because they are not attached to the window). However, if the blinds were installed between two panes of glass, the combination of blinds and glass would be considered a multiple glazed unit and would have to meet the standard.

Another safety standard (Standard No. 201, Occupant protection in interior impact) requires, among other things, that the area in front of the driver provide protection when struck by the head during a crash. NHTSA believes that installation of your blinds in front of the driver could have an impact on compliance with that standard, regardless of your assertions that they would not. If your blinds are installed on a sun visor so that a hard object (e.g., a rigid mounting hook) were to be struck by the occupant's head, compliance with the standard might not be achieved. Moreover, new requirements for cushioning in the header area are due to be phased in 1998.

Another safety standard, No. 302, Flammability of interior materials, requires that shades, such as your blinds, burn at a rate of not more than 4 inches per minute. If installed in a new vehicle, all surfaces of your blinds would have to meet this requirement.

We have some additional safety-related concerns regarding your invention. If a malfunction caused the blinds to lower or close while the vehicle is in motion, then the driver would not be able to see through the affected window. This would be particularly dangerous if the blinds for the windshield were deployed unexpectedly. Moreover, the blinds could make exiting from a vehicle more difficult if the windows had to be used for egress after an accident occurs. Mounting hooks for the side window blinds would also be a concern for impact with the head in a side collision and for emergency egress through the door (e.g., by catching clothing).

The manufacturer of these blinds, which are motor vehicle equipment, would be subject to the requirements in sections 30118-30122 of Title 49 of the U.S. Code concerning the recall and remedy of products with defects related to motor vehicle safety. In the event that a manufacturer or NHTSA determines that the product contains a safety-related defect, the manufacturer would be responsible for notifying purchasers of the defective equipment and remedying the problem free of charge.

Other legal requirements could apply depending on how your product is marketed. If your product were installed by a vehicle manufacturer as original equipment, i.e., on a new vehicle, the vehicle manufacturer would have to certify that the vehicle with the blinds installed complies with all FMVSS's, including the standards discussed above. In addition, if your invention were installed by motor vehicle manufacturers, distributors, dealers or repair businesses, those commercial enterprises would have to take care not violate section 30122(b) of Title 49, which prohibits them from "knowingly mak[ing] inoperative any part of a device or element of design installed on or in a motor vehicle ... in compliance with an applicable Federal motor vehicle safety standard . . . " For instance, compliance with Standard No. 201 might be degraded if the blinds were mounted in front of the driver. Any violation of this "make inoperative" prohibition would subject the violator to a potential civil penalty of up to $1,000 for each violation.

The "make inoperative" prohibition does not apply to modifications that vehicle owners make to their own vehicles. Thus, Federal law would not apply to individual vehicle owners who install your blinds in their own vehicles, even if the installation were to result in the vehicle no longer complying with the safety standards. However, NHTSA encourages vehicle owners not to degrade any safety device or system installed in their vehicles. In addition, since individual States have the authority to regulate modifications that individual vehicle owners may make to their vehicles, you might wish to consult State regulations to see whether your device would be permitted.

I hope this information is helpful. I am also enclosing a copy of a fact sheet titled "Information for New Manufacturers of Motor Vehicles and Motor Vehicle Equipment." If you have any further questions, please feel free to contact Paul Atelsek of my staff at this address or by telephone at (202) 366-2992.

Sincerely,

Samuel J. Dubbin Chief Counsel

Enclosure

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ID: 003453rbm--June 6

Stephan J. Speth, Director
Vehicle Compliance & Safety Affairs
DaimlerChrysler Corporation
800 Chrysler Drive CIMS 482-00-91
Auburn Hills, MI 48326-2757

Dear Mr. Speth:

This responds to your recent correspondence regarding the use of the Cosco Dream Ride car bed in conducting tests for the advanced air bag requirements of Federal Motor Vehicle Safety Standard No. 208, Occupant crash protection (FMVSS No. 208). S19 of FMVSS No. 208 requires that a manufacturer certifying compliance with the advanced air bag requirements for infants through automatic suppression certify that the passenger air bag will suppress when tested with any child restraint listed in Subparts A, B and C of Appendix A to the standard. The Cosco car bed is currently the only restraint listed in Subpart A of the appendix. You state in your letter that the car bed does not fit in the front passenger seat of one of your vehicles. You also state that this problem is likely to be encountered with other models of vehicles. Accordingly, you have requested an interpretation stating that compliance with S19 is not required for a child seat that cannot reasonably be installed at any seat track position without contacting the interior of the vehicle. We have determined that manufacturer certification is not required with respect to any child restraint that cannot be placed in the vehicle at any seating position without significant contact with the vehicle interior as described below.

On May 12, 2000, the National Highway Traffic Safety Administration (NHTSA) published a final rule requiring advanced air bags in all passenger cars, multi-purpose passenger vehicles, buses and light trucks with a gross vehicle weight rating (GVWR) of 8,500 lb or less starting September 1, 2003 (65 FR 30680). Several of the issues raised in your letter were discussed, either directly, or by analogy, in the preamble of that final rule.

In your letter, you explain that the Cosco car bed cannot be installed in a manner that allows for the proper placement of the car bed. In the full forward and full rearward seat track positions, the door of the vehicle cannot be closed. In the mid-track position, the door can be closed, but only by pushing the interior edge of the car bed against the

gear shift, such that you believe a driver would be unable to operate the vehicle. Even at this position, you note that the car bed must be placed at an angle that is inconsistent with the restraint manufacturer's installation instructions. Additionally, because of the placement of the car bed against the gear shift, the occupant classification system detects an empty seat and the telltale indicator does not illuminate. Because the occupant classification system defaults to air bag suppression if the system reads the seat as empty, the air bag would suppress if the car bed were placed in the seat. You go on to state that the Cosco car bed is no longer in production and that no other car beds are currently distributed for sale in the U.S. market. [1]

The test procedures for S19 are contained in S20 of the standard. Under that provision, if a child restraint contacts the vehicle interior, the vehicle seat is moved rearward until there is no contact. At that point, the vehicle manufacturer must certify compliance with the standard. There is no corollary language in S22 or S24, which provide the test procedures for the three-year-old and six-year-old compliance options.

The discussion in the preamble related to the "no contact" language of S20.1.2 is limited to contact with a rear facing child restraint and the vehicle dashboard. (See discussion at 65 FR 30711, 30724.) The language was included because we had found in our testing that when some convertible child restraints were tested in their rear facing position with the vehicle seat in a full forward position, the child restraint was either severely tilted or entirely lifted off the seat of some vehicles. We stated that we did not believe parents or caregivers were likely to transport an infant in such a position. Rather, it was our opinion that the vehicle seat would be moved back to accommodate the child restraint. The agency did not anticipate a situation where the width of the child restraint would prevent placement of the restraint without contacting the vehicle interior. Likewise, we did not contemplate a situation where no seat track position could be found that would allow the restraint to be placed in the vehicle without contacting the vehicle interior.

We will not conduct compliance testing for, and manufacturers will not be required to certify compliance with, S19 when the child restraint's width results in so significant a level of contact with the vehicle interior that one would not reasonably expect a parent or caregiver to place the restraint in the front seat. We will consider the following factors in determining whether to do so: first, whether the placement of the restraint in the seat prevents one from closing the door of the vehicle; second, whether the placement of the restraint prevents the driver from operating the vehicle in a reasonable manner, e.g., because of interference between the restraint and either the gear shift or parking brake; and third, whether the restraint is rotated so that it deviates more than 30 degrees from a longitudinal vertical plane. In deciding to drop a proposed test condition in which the restraint was placed on the seat at a 45-degree angle with that plane, we noted that it was unreasonable to assume that parents would actually place a restraint so markedly out of position. (See discussion at 65 FR 30710-11.)

Based on the information provided in your letter, it appears that at least two of these factors may be applicable. The inability to close the car door in the full forward and full rearward seat track positions would obviously preclude the use of the car bed in those positions. Likewise, depending on the amount of interference, the gear shift interference could prevent a driver from operating the vehicle with the car bed in the mid-track position. We note that if other seat positions permit reasonable placement of the child restraint, then compliance testing would be performed at these seat positions.

At this time, we are not deciding that limited contact between a child restraint in Appendix A and the vehicle interior, other than contact between a rear facing child restraint and the dashboard or console, would relieve a vehicle manufacturer from its certification responsibilities with respect to the advanced air bag requirements. Parents or caregivers may use a restraint in the front seat even though there is some contact with the vehicle interior. In those instances, it is appropriate to require manufacturers to certify compliance with the standard using that restraint, and we intend to conduct compliance testing even though there may be some degree of contact.

I hope this letter addresses your concerns. Please feel free to contact Rebecca MacPherson of my staff at (202) 366-2992 should you have any additional questions.

Sincerely,

Jacqueline Glassman
Chief Counsel

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[1] Cosco has informed NHTSA that the Dream Ride car bed has not been discontinued. Rather, it is manufactured only when someone places an order for it.

ID: 00946.ztv

James T. Pitts, Esq.
Venable, Baetjer, Howard & Civiletti, LLP
1201 New York Avenue, N.W., Suite 1000
Washington, D.C. 20005-3917

Dear Mr. Pitts:




This is in reply to your letter of October 1, 2002, to Stephen R. Kratzke, Associate Administrator for Rulemaking.You wrote on behalf of your client, TBC Corporation ("TBC"), whose Director of Engineering and Quality Assurance, L. M. Hardy, was notified by Claude Harris, Director of Crash Avoidance Standards, NHTSA, on September 4, 2002, that its petition for an inconsequentiality determination was moot.The basis for this conclusion was that all the noncomplying tires covered by the petition remained in the possession of the company, and had not been distributed or sold.You have asked us to reconsider our position on the basis of alternative arguments that you presented.

By way of background, paragraph S6.4 Treadwear indicators of 49 CFR 571.119, Motor Vehicle Safety Standard No. 119, "New Pneumatic Tires for Vehicles Other Than Passenger Cars," specifies that each tire to which the standard applies "shall have at least six treadwear indicators . . . ." TBC determined that certain of its tires had only five treadwear indicators.It then properly determined that this was a failure to comply with Standard No. 119, notified NHTSA as required by 49 CFR Part 573, and petitioned for a determination that the noncompliance was inconsequential to motor vehicle safety.As noted in the first paragraph, we considered the petition to be moot and further informed TBC that its noncompliant tires could not be legally sold (letter of Claude Harris, attached).

In your first argument, you analogized to a 1979 case involving Vespa of America Corporation which had failed to provide a turn signal indicator on its motorcycles.We concurred with the company's argument that the rapid flashing of the front turn signal lamps to indicate a failure of the rear turn signal lamps was a functional equivalent of a turn signal indicator which would indicate a failure in the turn signal system (letter of Chief Counsel Frank Berndt, March 16, 1979).You have asked us to make a similar decision with respect to TBC's noncompliance.

We have reviewed Mr. Berndt's letter.Significantly, Mr. Berndt stated that "we have determined that there is no failure to comply with the standard and your petition is moot." NHTSA's determination that there was no failure to comply with Standard No. 108 permitted Vespa to sell its complying motorcycles.With respect to TBC, we cannot make a determination that there was no failure to comply with Standard No. 119 on the basis of functional equivalence.The standard requires a minimum of six treadwear indicators.We cannot interpret this as meaning five treadwear indicators are the functional equivalent of "at least six treadwear indicators."

In the alternative, you have presented your interpretations of 49 U.S.C. Sections 30112, 30118, and 30120.You asserted that "there is nothing in Section 30118(d)" or Section 30120. . . that requires that there be 'owners, purchasers, and dealers' as a prerequisite to an inconsequentiality determination." You concluded that "it is clear that NHTSA can make an 'inconsequential to safety determination' at a time when the noncomplying equipment is still in the hands of the manufacturer."You next argued that "The ability of the manufacturers to then sell that equipment turns on the language in section 30112(b)(2)(A), which excludes certain persons and equipment from the prohibitions in section 30112(a) relating to the sale of non-complying equipment." Specifically, you asserted that subsection (b)(2)(A) excludes persons exercising reasonable care who had no reason to know that the equipment "does not comply." You argued that "The exclusion, written in the present tense, does not assume that any of the actions prohibited in subsection (a) have already taken place. Otherwise, the exclusion would reference the lack of knowledge regarding the noncompliance of the equipment at the time the equipment was imported or sold, i.e., a past action, and not a present condition."You concluded that "TBC imported the tires in questions (sic) and had no reason to know then of their noncompliance.The equipment does not comply with an applicable standard.The exclusion from the flat prohibition of sale is thus satisfied and the tires can be sold without penalty if, and only if, NHTSA determines that the noncompliance is inconsequential to safety."

The Motor Vehicle and School Bus Safety Amendments of 1974 amended the National Traffic and Motor Vehicle Safety Act of 1966 to add Section 157, Exemption for Inconsequential Defect or Failure to Comply (the Safety Act was recodified in 1994 and the provisions of Section 157 were divided between Section 30118(d), regarding notice, and Section 30120(h), regarding remedy.The 1974 Amendments required manufacturers of motor vehicles and motor vehicle equipment to remedy noncompliances and safety-related defects without charge.The obligation was absolute and Section 157 was added as a means of relieving manufacturers of the need to notify and remedy where noncompliances, such as those involving labels, and defects were inconsequential as they related to motor vehicle safety.The legislative history clearly indicates that this was the purpose of the inconsequentiality provisions:

This section [157] enables a manufacturer to apply to the Secretary for an exemption from the obligation to give notice with respect to, or to remedy, a motor vehicle or item of motor vehicle equipment, which contains a defect relating to motor vehicle safety or which fails to comply with an applicable Federal motor vehicle safety standard. * * * Your Committee believes that this provision is a reasonable corollary to the new statutory obligation for manufacturer to remedy without charge. [H. Rep. 93-1191. 93d Cong. 2d Sess. 31 (1974)]

We disagree with your analysis of Section 30112.Significantly, Section 157 referred only to relief from the notice and remedy provisions.It did not alter what is now Section 30112(a).Under Section 30112(a), sale of the noncomplying tires remains unlawful. We further read Section 30112 in context with Section 30165(a)(1).That section authorizes civil penalties for a person that violates Section 30112 (and other statutory provisions).TBC's importation of non-complying tires into the United States is a prima facie violation of Section 30112(a).However, if TBC can establish that, in the exercise of reasonable care, it did not know of the noncompliance at the time of importation, it will not be held to have violated Section 30112(a) for purposes of civil penalties.The existence of a reasonable care defense does not alter the fact that non-complying tires have been imported. If TBC then proceeds to engage in further violations of Section 30112(a), i.e., to "sell, offer for sale, introduce or deliver for introduction into interstate commerce" the defense of Section 30112(b)(2)(A) will no longer be available to it, and it will be liable for civil penalties under Section 30165.A determination that a noncompliance is inconsequential does not bring a noncompliant product into compliance, and such a determination is immaterial for purposes of knowing violations of Section 30112(a) (but an inconsequentiality determination would be relevant for the agency to weigh in determining the amount of a civil penalty for a violation of Section 30112(a), because the agency is required to consider the gravity of the violation that has occurred.See Section 30165(c)).

For NHTSA to relieve a manufacturer of the obligation to notify owners, purchasers, and dealers when none of the noncomplying products have been delivered to them would be a meaningless exercise; under these circumstances the obligation does not arise in the first instance and the petition is moot. Similarly, the obligation to remedy under Section 30120 arises only when notification of a defect is required under Section 30118(c), and if this obligation is moot, so is the obligation to remedy.

Sincerely,

Jacqueline Glassman
Chief Counsel

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d.11/1/02