ID: nht88-3.57

TYPE: INTERPRETATION-NHTSA

DATE: 09/23/88

FROM: HARRY B. SKINNER -- FEDERAL HIGHWAY ADMINISTRATION

TO: RUSSELL A. STORMS

TITLE: NONE

ATTACHMT: ATTACHED TO LETTER DATED 08/17/89 FROM STEPHEN P. WOOD -- NHTSA TO RUSSELL STORMS; REDBOOK A34; STANDARD 125; VSA 108[B]; LETTER DATED 09/12/88 FROM RUSSELL A STORMS TO FEDERAL HIGHWAY ADMINISTRATION

TEXT: Dear Mr. Storms:

The Office of Traffic Operations received your September 12 letter requesting approval of a vehicular device you designed to be used by motorists prior to the use of flares or other similar emergency devices.

Our office is responsible for establishing national standards for the design, placement, and application of traffic control devices used on roadways open to public travel. These standards apply to highway signs, signals, and pavement markings, not to ve hicular devices. We are forwarding a copy of your letter to the National Highway Traffic Safety Administration (NHTSA). Since vehicle safety is one of its program areas, we feel NHTSA is in a better position to advise you concerning your device.

Thank you for your interest in motorist safety and much success in your endeavor.

Sincerely yours,

Please reply further to Mr. Storms advising him of his device. Also, please[Illegible Word] a copy of your response to HTO-22. Thank you.

ID: nht90-2.38

TYPE: Interpretation-NHTSA

DATE: May 1, 1990

FROM: Jerry Laderberg -- Acting Director, Commercial Rulings Division

TO: John H. Heinrich -- District Director

TITLE: Re Country of origin marking of imported automotive glass

ATTACHMT: Attached to letter dated 9-14-90 from P.J. Rice to J. Durant (A36; Std. 205); Also attached to letter dated June 26, 1989 from S.P. Wood to M. Turner; Also attached to letter dated 6-28-90 from J. Durant to P.J. Rice (OCC 4965)

TEXT:

This is in response to your memorandum of July 21, 1988, (MAR-2-05-LA:CO:TTB-1 DLM), requesting internal advice on the country of origin marking of imported replacement automotive glass. We regret the delay in responding to your inquiry.

FACTS:

Mitsubishi International Corporation imports automotive glass from Japan for the replacement automotive market. The automotive glass is packaged in two ways. Deep bent automotive glass such as windshields and rear windows are individually packaged in p lastic containers. Side window automotive glass are individually packaged in cardboard containers. All the containers are marked with the country of origin of the glass.

The car manufacturer's name, the trademark of the glass, the material code, the Department of Transportation ("DOT") number and other markings required by the European Community are sandblasted on the glass. It is common commercial practice to mark the glass with the trademark, DOT number and other certification marks. The part numbers are placed on labels on the individual container.

In HQ 726169 (September 20, 1984), Customs denied an importer's request for an exemption from individual country of origin marking of glass windshields and windows for buses and automobiles. Customs cited examples of who might be considered the ultimate purchaser of imported glass in different circumstances, but did not rule on who the ultimate purchaser was in that case.

In HQ 729257 (March 30, 1988), Customs clarified its position that the examples cited in HQ 726169 were not necessary to the ruling and were not binding on Customs.

In your memorandum, you asked that we determine who is the ultimate purchaser of imported replacement automotive glass and how the imported glass ought to be marked for country of origin marking purposes.

ISSUE:

Whether the installer of imported replacement automotive glass is the ultimate purchaser for country of origin marking purposes.

LAW AND ANALYSIS:

Section 304 of the Tariff Act of 1930, as amended (19 U.S.C. 1304), provides that, unless expected, every article of foreign origin imported into the U.S. shall be marked in a conspicuous place as legibly, indelibly, and permanently as the nature of the article (or container) will permit, in such a manner as to indicate to the ultimate purchaser in the U.S. the English name of the country of origin of the article. The Court of International Trade stated in Ford North America v. United States, 701 F.Sup p. 229, 12 CIT (CIT 1988), that: "In ascertaining what constitutes the country of origin under the marking statute, a court must look at the sense in which the term is used in the statute, giving reference to the purpose of the particular legislation inv olved. The purpose of the marking statute is outlined in United States v. Friedlaender & Co., 27 CCPA 297 at 302 C.A.D. 104 (1940), where the court stated that: "Congress intended that the ultimate purchaser should be able to know by an inspection of th e marking on the imported goods the country of which the goods is the product. The evident purpose is to mark the goods so that at the time of purchase the ultimate purchaser may, by knowing where the goods were produced, be able to buy or refuse to buy them, if such marking should influence his will."

Part 124, Customs Regulations (19 CFR Part 134), implements the country of origin marking requirements and exceptions of 19 U.S.C. 1304. Section 134.1(d), Customs Regulations (19 CFR 134.1(d)), defines the ultimate purchaser as generally the last person in the U.S. who will receive the article in the form in which it was imported. The definition then gives examples of who might be the ultimate purchaser if the imported article is used in manufacture, if the imported article is sold at retail in its im ported form and if an imported article is distributed as a gift.

The standard for determining the ultimate purchaser of an article used in manufacture is set forth in section 134.35, Customs Regulations (19 CFR 134.35), which provides that the manufacturer or processor who converts or combines the imported article int o an article having a name, character or use differing from that of the imported article is considered the ultimate purchaser. Under such circumstances, the imported article is substantially transformed and the article itself need not be individually ma rked. Only the outermost container in which the article is imported must be marked.

A substantial transformation occurs when articles lose their identity and become new articles having a new name, character or use. United States v. Gibson-Thomsen Co., 27 C.C.P.A. 267 at 270 (1940), National Juice Products Association v. United States, 10 CIT 48, 628 F.Supp. 978 (CIT 1986), Koru North America v. United States, 12 CIT , 701 F.Supp. 229 (CIT 1988).

In the instant case, the automotive glass is imported already cut to size and is merely installed into the automobile. Further, the glass is imported already cut to shape and dedicated to use as either a windshield, rear window, or side window, and made to fit a particular automobile type and model. In addition, the automotive glass is imported in a finished condition and merely requires installation. No evidence was submitted that the installation is particularly complex or requires a great deal of

skill. For all the above reasons, the installation of replacement automotive glass into an automobile is not a substantial transformation.

Since the replacement automotive glass is not substantially transformed, pursuant to 19 CFR 134.35, the automobile owner who purchases the glass is the ultimate purchaser. The marking statute requires that the ultimate purchaser, who in this case is the automobile owner purchasing replacement glass, be made aware of the country of origin of the imported article.

Section 134.41(a), Customs Regulations (19 CFR 134.41(a)), states that as a general rule, marking requirements are best met by marking worked into the article at the time of manufacture. For example, it is suggested that the country of origin on metal a rticles be die sunk, molded in or etched; on earthenware or chinaware be glazed on in the process of firing; and on paper articles be imprinted. The marking requirements of 19 CFR 134.41 are best met by marking worked into the glass at the time of manuf acture which would be visible to the automobile owner purchasing the glass. In any case, the marking must be sufficient to insure that in any reasonably foreseeable circumstance, the marking shall remain on the article until it reaches the ultimate purch aser unless it is deliberately removed.

HOLDING:

Imported replacement automotive glass is not substantially transformed when it is installed in an automobile. Therefore, pursuant to 19 CFR 134.1(d), the automobile owner who purchases the replacement glass is the last person in the U.S. to receive it i n its imported form and is the ultimate purchaser of the imported automotive glass. Pursuant to 19 CFR 134.41, the marking requirement is best met with a marking worked into the glass at the time of manufacture which would be visible to the automobile o wner purchasing the glass.

ID: nht94-6.36

DATE: April 12, 1994

FROM: John Womack -- Acting Chief Counsel, NHTSA

TO: J. Roberts -- John H. Roberts Well Drilling Co. (Brighton, MI)

TITLE: None

ATTACHMT: Attached to letter dated 3/7/94 from J. Roberts to John Womack (OCC 9780)

TEXT:

This responds to your letter of March 7, 1994. You ask for clarification of the agency's position on HMMMV vehicles, as expressed in our letter to Senator Nunn, a copy of which I sent you on February 28.

Specifically, you ask for "the list of the specific objections your department based its recommendation on." As we explained to Senator Nunn, this agency has specifically exempted military motor vehicles from the statutory requirement that all motor vehicles be manufactured to conform to all applicable Federal motor vehicle safety standards. The standards that would otherwise cover HMMMV vehicles are those that apply to "multipurpose passenger vehicles" or to "trucks", depending upon the end configuration of any specific HMMMV vehicle.

Thus, our objection was based on the fact that military HMMMVs are not manufactured to meet the Federal motor vehicle safety standards. We have no knowledge of the specific standards that military HMMMVs do and do not meet, since we have never asked its manufacturer to provide this information.

ID: nht73-6.11

DATE: 06/26/73

FROM: AUTHOR UNAVAILABLE; Richard B. Dyson; NHTSA

TO: Taylor Machine Works Inc.

TITLE: FMVSR INTERPRETATION

TEXT: This is in reply to your letter of May 25, 1973, to Michael Peskoe of this office, requesting clarification of the regulations regarding the certification of motor vehicles. You enclose an incomplete vehicle document concerning a particular tractor, a certification label you would affix to that tractor after its completion, a drawing of a trailer certification label, and a sample quarterly report of production figures for vehicles manufactured by your company.

Mr. Peskoe indicated to you over the phone that in meeting your certification responsibilities for these vehicles, they are certified independently of each other. It appears from your letter that this approach, which is the correct one, is the approach you are using.

With reference to your responsibilities for the certification of the tractor, if the truck does not have a certification label attached to it when you receive it, it is true that when you complete it by mounting a fifth wheel you must then attach a certification label. The label you enclose (exhibit 1) contains the necessary information in the appropriate order. You should obtain the information for the label primarily from the incomplete vehicle document, but may, as you state, rely on your own engineering judgment or contact the truck manufacturer. If, however, in relying on your own judgement you depart from the information contained in the incomplete vehicle document, you may be responsible for failures of the vehicle to conform to applicable standards and regulations.

The sample trailer certification label which you have submitted is not consistent with the certification regulations. We have taken the position that the information must be presented on the label in the form and in the order specified in the

2 regulations. With respect to your sample label, the regulations do not presently call for a Kingpin rating. Although we have just proposed to require a weight rating for the trailer coupling, this information should not now be included on the label. The regulations also do not permit ratings for tandem axles to be stated as tandem ratings. Each axle must be independently identified and a separate rating provided for it. Moreover, tire sizes are permitted to be specified only in conjunction with weight ratings. There are no provisions for the listing of plies, apart from their inclusion in a tire size designation, or for the listing of an inflation pressure. Again, information that is not specifically required cannot be inserted between items of required information, and your drawing of a trailer is not permitted unless it is placed after the required information. Finally, the regulations call for gross vehicle weight rating (the phrase "gross trailer weight rating" is inappropriate) to follow the gross axle weight ratings, and the order in which you present this information must be reversed. I believe you should reexamine the Certification regulations in order to obtain specific guidance on the order and form of the required information.

The sample quarterly production report you submit conforms to the requirements of section 573.5 (b) of the Defect Reports regulations. However, that section requires only the reporting of the number of vehicles, identified by make, model, and model year (if appropriate). While we are happy to receive the additional information you provide, you are not required to furnish it to us.

Yours truly,

TAYLOR MACHINE WORKS, INC.

May 25, 1973

Michael Peskoe U.S. Department of Transportation

Dear Mr. Peskoe:

Reference is to our conversation of May 23, wherein we asked for clarification on the Department of Transportation's vehicle certification laws.

We discussed, Taylor Machine Works is a manufacturer of dump trailers with but 90% of them used in the construction industry and about 10% of them in the refuse industry. We normally manufacture the trailer complete and in about 80% of our cases, we mount them on some user's new truck. Also, we mount the fifth wheel and the hydraulics for actuating the dump cylinder on the trailer.

Normally when we receive a new truck, they have with the vehicle a vehicle Manufacturer Document. I have enclosed a copy of such a document of a specific truck which happens to be an International Harvester Company truck #75797CGB14608. As you can see from this document, IH has placed a gross vehicle weight rating of 44,860 pounds on the truck tractor. The truck's front axle has a 10,860 rating and each of the tandems have a 17,000 pound rating. Also, this truck has affixed to the facing of the door on the operator's side a serial plate tag which states a gross vehicle weight rating of 44,860 pounds.

In weighting the truck, we found the following to be approximately the weights of the truck with the fifth wheel installed and ready to connect a trailer. (See diagram). The two tandem drive axle total 8,300 pounds, the steer axle of the truck 7,120 pounds. Upon connecting our trailer to this truck, we found the weights to be as follows: steer axle of the truck 7,290 pounds, truck tandem 10,640 pounds, and trailer tandem 7,470 pounds. (See attached sheets).

This was a typical installation that we make on our trailers. Since the rear axle rating is a total of 34,000 pounds, we feel that the vehicle will accept approximately 24,000 pounds on the king pin from the trailer and our componentry in the tandem axle has a rating of 36,000 pounds. Therefore, we would mark on the

2 certification plate that trailer T-3272 has a 60,000 pound rating. We would attach the marked certification plate to the trailer which shows the approximate king pin load of 24,000 pounds and tandem rating of 36,000 pounds and gross trailer weight rating of 60,000 pounds.

We understand from our conversation that if this truck does not have truck vehicle rating tag on it or the tractor, when we mount the fifth wheel we must put a vehicle certification plate similar to our Exhibit No. 1 which rate this truck showing what its capacity would be to the best of our knowledge or by contacting its manufacturer. Also, we would enter on a quarterly basis a report similar to the attached sample copy. We have taken this IH truck and trailer T-3272 and entered it on this report and would like for you to review if and make your suggestions.

Mr. Peskoe, if any of the above is not in keeping with what your office desires, please advise and we will make the necessary corrections. Also, on any other items concerning the certification of our product, we would be very grateful if you would make recommendations.

(Illegible word) you very much.

Very truly yours,

J. T. Monk Director of Engineering

Attachments

VEHICLE CERTIFICATION

EXHIBIT NO. 1

COMPLETED VEHICLE MANUFACTURED BY: TAYLOR MACHINE WORKS, INC.

DATE OF COMPLETION: MAY, 1973

INCOMPLETE VEHICLE MANUFACTURED BY: INTERNATIONAL, HARVESTER COMPANY

DATE INC. VEHICLE MFG FEB., 1973

GROSS VEH. WEIGHT RATING 44,860 LBS

GROSS AXLE WEIGHT RATING FRONT, 10, 860 LBS.

1st INC. 17,000 LBS.

REAR 17,000 LBS.

THIS VEHICLE CONFORMS TO ALL APPLICABLE FEDERAL MOTOP VEHICLE SAFETY STANDARDS IN EFFECT IN MAY, 1973

VEHICLE ID NUMBER: 75797CGB14608

TYPE VEHICLE CLASSIFICATION: (X) TRUCK () BUS () MPV

Title 49 - Code of Federal Regulations Part 568 - Vehicles Manufactured in Two or More Stages. Section 6 - Canada Motor Vehicle Safety Regulations

International Harvestor Company 401 North Michigan Avenue Chicago, Illinois 60611 U.S.A. Date of Manufacture: 2-73 VIN: 75797CGB14608 GVWR: 44860 GAWR: Front Axle 10860 1st Intermediate 17000 2nd Intermediate Rear Axle 17000

Vehicle Type: *[Truck or MPV (Multipurpose Passenger Vehicle)]

TRUCK TRACTOR

The following listing of PWVSS (Federal Motor Vehicle Safety Standards) apply to this incomplete vehicle as of the date shown above. This vehicle fully conforms to those standards preceded by a double asterisk (**) as of the date shown above.

* It is the responsibility of the final-stage manufacturer to specify on the certification label the proper vehicle type for which this vehicle is completed.

ID: nht94-4.21

TYPE: INTERPRETATION-NHTSA

DATE: September 2, 1994

FROM: Tom Determan -- Eng. Mgr., Brownie Tank Mfg. Co.

TO: Taylor Vinson -- Office of the Chief Counsel, NHTSA

TITLE: None

ATTACHMT: ATTACHED TO LETTER DATED 12/7/94 FROM PHILIP R. RECHT TO TOM DETERMAN (A42; REDBOOK 2; STD. 108)

TEXT: We are seeking a formal written interpretation regarding 49 CFR, Part 571.108, specifically in regards to the height requirements for side marker lamps and reflex reflectors.

We build tank trucks, over 80" wide, for the transport of petroleum products. Our customers are being cited for having reflex reflectors and marker lamps mounted too high on the vehicle.

We understand the rule to require that side marker lamps must be mounted at any height above 15" from ground level, and reflex reflectors must be mounted between 15" and 60" from ground level.

We believe the enforcement personnel may be applying the rule, as it pertains to trailers, to our vehicle, which is not a trailer.

Please review the rule, and issue a written interpretation. If the rule is interpreted as we believe, we will forward this interpretation to the enforcement personnel. If Brownie Tank is in error, we will change the installation position of the lights and reflectors on our tanks.

Your expeditious reply will be appreciated.

ID: nht94-2.32

TYPE: Interpretation-NHTSA

DATE: April 12, 1994

FROM: John Womack -- Acting Chief Counsel, NHTSA

TO: J. Roberts -- John H. Roberts Well Drilling Co. (Brighton, MI)

TITLE: None

ATTACHMT: Attached to letter dated 3/7/94 from J. Roberts to John Womack (OCC 9780)

TEXT:

This responds to your letter of March 7, 1994. You ask for clarification of the agency's position on HMMMV vehicles, as expressed in our letter to Senator Nunn, a copy of which I sent you on February 28.

Specifically, you ask for "the list of the specific objections your department based its recommendation on." As we explained to Senator Nunn, this agency has specifically exempted military motor vehicles from the statutory requirement that all motor veh icles be manufactured to conform to all applicable Federal motor vehicle safety standards. The standards that would otherwise cover HMMMV vehicles are those that apply to "multipurpose passenger vehicles" or to "trucks", depending upon the end configura tion of any specific HMMMV vehicle.

Thus, our objection was based on the fact that military HMMMVs are not manufactured to meet the Federal motor vehicle safety standards. We have no knowledge of the specific standards that military HMMMVs do and do not meet, since we have never asked its manufacturer to provide this information.

ID: 2864yy

Ms Anne Lombardi
Acting Director
Office of Passenger
Enforcement and Facilitation
Department of the Treasury
U.S. Customs Service
Washington, D.C. 20229

Dear Ms. Lombardi:

This is in reply to your letter of February 14, l99l, asking for an opinion on kit cars.

Specifically, military and DOD civilian employees stationed on the Philippines

"frequently purchase automobiles which are composites of old chassis and engines, of U.S. manufacture, and new bodies and interiors, fabricated and attached to the chassis by local Filipino car shops. Normally, the chassis and engines were not taken abroad by the importers, but were purchased in the Philippines from other sources. In most cases the chassis are said to have been manufactured prior to January 1, l969."

You have asked which DOT regulations apply to these automobiles, those applicable to the year the chassis was manufactured, or those applicable to the year the body was attached.

This is a question of first impression with us. Under the opinions of this Office relating to the National Traffic and Motor Vehicle Safety Act, if a person meeting the definition of a "manufacturer", "distributor", "dealer", or "motor vehicle repair business" removes a body from the chassis of a motor vehicle and installs a new one, the resulting vehicle must continue to meet the Federal motor vehicle safety standards that were in effect at the time that the vehicle was originally manufactured. If a person other than the above installs the new body, the vehicle is simply a used vehicle to which no Federal motor vehicle safety standards are applicable (but which must meet State standards for vehicle registration). However, these interpretations apply only to modifications that occur within a "State" as defined by the Act. The Philippines is not included in the definition of "State."

Where such modifications have occurred outside a "State", and the modified vehicle is offered for importation into the United States, the vehicle is treated under the importation regulations (49 CFR Part 591) as a used vehicle which must be brought into conformity with Federal safety and bumper standards in effect at the time of its manufacture. We regard the date of manufacture of the original vehicle (i.e., chassis) as the appropriate date, because it may not be feasible to conform the assemblage to vehicle standards in effect at the later date on which the body was manufactured. If the original vehicle were manufactured before January 1, l968 (the effective date of the original safety standards), then no Federal motor vehicle safety standards apply to the vehicle.

I must add an important caveat here. There are two types of Federal motor vehicle safety standards: those that apply to the vehicles as a whole (such as the so-called crash standards), and those that apply to individual equipment items. The equipment standards apply regardless of the date of manufacture of the vehicle. Thus, the tires, brake fluid, brake hoses, glazing, seat belt assemblies, and lamps and reflectors on any modified vehicle imported into the United States must meet the standards in effect at the time the items were manufactured, regardless of whether the modified vehicle must meet the Federal safety standards applicable to vehicles.

I must also add two other caveats. The Imported Vehicle Safety Act of l988, which has been implemented by 49 CFR Parts 591-594, forbids the importation of a vehicle not originally manufactured to conform to the Federal motor vehicle safety standards (e.g., this would apply to an assemblage of a new body placed upon a chassis manufactured on or after January 1, l968) unless this agency has determined that the vehicle is capable of modification to comply with all applicable safety standards. This determination is made pursuant to a petition submitted by a "Registered Importer," who will undertake to conform the vehicle if a favorable determination is made. The second caveat is that the owner can import the vehicle only if (s)he has a contract with a Registered Importer to perform conformance work.

However, there is a limited exception to the two caveats of the preceding paragraph. They do not apply to any vehicle that will be imported into the United States on or before October 31, l992, if its importer owned the vehicle (or had a contract to acquire it) before October 31, l988, was employed outside the United States at all times between those two dates, and had never before imported a nonconforming motor vehicle. Under this exception, the owner may import the vehicle without the necessity of a determination or the intervention of a Registered Importer. (S)he must then bring the vehicle into compliance with all applicable Federal motor vehicle safety and bumper standards, and present evidence of conformance to this agency. Under any circumstances of importation of a noncomplying vehicle to be conformed, its owner must acquire a performance bond to ensure that the work is, in fact, completed.

If you have any further questions, we shall be pleased to answer them.

Sincerely,

Paul Jackson Rice Chief Counsel

ref:VSA#59l d:3/ll/9l

ID: nht91-2.24

DATE: March 11, 1991

FROM: Paul Jackson Rice -- Chief Counsel, NHTSA

TO: Anne Lombardi -- Acting Director, Office of Passenger Enforcement and Facilitation, Department of the Treasury

TITLE: None

ATTACHMT: Attached to letter dated 2-14-91 from Anne Lombardi to Paul Jackson Rice (OCC 5710)

TEXT:

This is in reply to your letter of February 14, 1991, asking for an opinion on kit cars.

Specifically, military and DOD civilian employees stationed on the Philippines

"frequently purchase automobiles which are composites of old chassis and engines, of U.S. manufacture, and new bodies and interiors, fabricated and attached to the chassis by local Filipino car shops.

Normally, the chassis and engines were not taken abroad by the importers, but were purchased in the Philippines from other sources.

In most cases the chassis are said to have been manufactured prior to January 1, 1969."

You have asked which DOT regulations apply to these automobiles, those applicable to the year the chassis was manufactured, or those applicable to the year the body was attached.

This is a question of first impression with us. Under the opinions of this Office relating to the National Traffic and Motor Vehicle Safety Act, if a person meeting the definition of a "manufacturer", "distributor", "dealer", or motor vehicle repair business" removes a body from the chassis of a motor vehicle and installs a new one, the resulting vehicle must continue to meet the Federal motor vehicle safety standards that were in effect at the time that the vehicle was originally manufactured. If a person other than the above installs the new body, the vehicle is simply a used vehicle to which no Federal motor vehicle safety standards are applicable (but which must meet State standards for vehicle registration). However, these interpretations apply only to modifications that occur within a "State" as defined by the Act. The Philippines is not included in the definition of "State."

Where such modifications have occurred outside a "State", and the modified vehicle is offered for importation into the United States, the vehicle is treated under the importation regulations (49 CFR Part 591) as a used vehicle which must be brought into conformity with Federal safety and bumper standards in effect at the time of its manufacture. We regard the date of manufacture of the original vehicle (i.e., chassis) as the appropriate date, because it may not be feasible to conform the assemblage to vehicle standards in effect at the later date on which the body was manufactured. If the original vehicle were manufactured before January 1, 1968 (the effective date of the original safety standards), then no Federal motor vehicle safety standards apply to the vehicle.

I must add an important caveat here. There are two types of Federal motor vehicle safety standards: those that apply to the vehicles as a whole (such as the so-called crash standards), and those that apply to individual equipment items. The equipment standards apply regardless of the date of manufacture of the vehicle. Thus, the tires, brake fluid, brake hoses, glazing, seat belt assemblies, and lamps and reflectors on any modified vehicle imported into the United States must meet the standards in effect at the time the items were manufactured, regardless of whether the modified vehicle must meet the Federal safety standards applicable to vehicles.

I must also add two other caveats. The Imported Vehicle Safety Act of 1988, which has been implemented by 49 CFR Parts 591-594, forbids the importation of a vehicle not originally manufactured to conform to the Federal motor vehicle safety standards (e.g., this would apply to an assemblage of a new body placed upon a chassis manufactured on or after January 1, 1968) unless this agency has determined that the vehicle is capable of modification to comply with all applicable safety standards. This determination is made pursuant to a petition submitted by a "Registered Importer," who will undertake to conform the vehicle if a favorable determination is made. The second caveat is that the owner can import the vehicle only if (s)he has a contract with a Registered Importer to perform conformance work.

However, there is a limited exception to the two caveats of the preceding paragraph. They do not apply to any vehicle that will be imported into the United States on or before October 31, 1992, if its importer owned the vehicle (or had a contract to acquire it) before October 31, 1988, was employed outside the United States at all times between those two dates, and had never before imported a nonconforming motor vehicle. Under this exception, the owner may import the vehicle without the necessity of a determination or the intervention of a Registered Importer. (S)he must then bring the vehicle into compliance with all applicable Federal motor vehicle safety and bumper standards, and present evidence of conformance to this agency. Under any circumstances of importation of a noncomplying vehicle to be conformed, its owner must acquire a performance bond to ensure that the work is, in fact, completed.

If you have any further questions, we shall be pleased to answer them.

ID: 16451.drn

Lance Tunick, Esq.
Vehicle Services Consulting, Inc.
P. O. Box 1015
Golden, CO 80402-1015

Dear Mr. Tunick:

This responds to your request for an interpretation as to whether Item 4A Glazing, "Rigid Plastic for Use in Side Windows," specified in Standard No. 205, Glazing materials, is permitted in the rear window that is behind a retractable roll bar in a convertible passenger car. As explained below, the answer is no.

Your letter asks for confirmation that a motor vehicle depicted in three enclosed photographs is a convertible, and asks whether Item 4A Glazing may be used in the rear and side windows of the convertible "if they meet the criteria of S5.1.2.11(a)(2)." The photographs depict a two door vehicle with two seats, space behind the seats, and a raked windshield. One photograph depicts a vehicle with no side glazing or roof. A second photograph shows a closer view of the top half of the vehicle, with a roll bar and an apparently retractable rear window. The rear window curves around the vehicle so that part of it can be seen from the side. The third photograph shows the entire vehicle with the roll bar and the rear window in place.

In a telephone conversation with Dorothy Nakama of my staff, you explained that by "side windows," your letter did not mean the glazing that rolls up and retracts within the driver and passenger side doors, but refers to the part of the rear window that is visible from the side. You explained that the vehicle includes a retractable rear window, retractable roll bar, and has a removable center or roof piece that can be stored in the trunk. You explained that the glazing behind the roll bar at the rear of the vehicle is of one piece. You also stated to Ms. Nakama that the vehicle has four designated seating positions.

We would agree that the vehicle is a convertible. NHTSA interpretations have consistently defined "convertible" as a vehicle whose "A" pillar or windshield peripheral support is not joined with the "B" pillar (or rear roof support rearward of the "B" pillar position) by a fixed, rigid structural member. The vehicle you ask about meets this definition.

The locations in a vehicle where Item 4A Glazing may be used are specified in S5.1.2.11, Test Procedures for Item 4A - Rigid Plastic for Use in Side Windows Rearward of the "C" Pillar. S5.1.2.11 was established in Standard No. 205 in a final rule published on August 12,

1996 (61 FR 41739, effective September 11, 1996). The preamble to the final rule explained that NHTSA decided to adopt an approach that, unlike the proposal, does not refer to any vehicle type. Instead, the approach is based on the relative location of a window in any vehicle and the occupant seats in that vehicle.

Item 4A Glazing is permitted in the following specific vehicle locations (see S5.1.2.11(a)):

(1) All areas in which Item 4 safety glazing may be used. (See S5.1.2.11(a)(1).)

(2) Any side window that meets the criteria in S5.1.2.11(a)(2)(I) and (ii). (See S5.1.2.11(a)(2).)

In reviewing "[A]ll areas in which Item 4 safety glazing may be used," we note that in ANSI Z-26.1a-1980, Item 4 Glazing is permitted in "(h) The rear windows of convertible passenger car tops." Since the vehicle depicted in your photographs is a convertible, the glazing does not meet subparagraph (h) because the glazing in the vehicle is separate from (not of the same piece as) the convertible top, and therefore is not a rear window of a convertible passenger car top.

Item 4A Glazing is also permitted in "[a]ny side window that meets the criteria in S5.1.2.11(a)(2)(I) and (ii)." Based on our observation of the photographs of the retractable glazing behind the roll bar, we would consider the glazing to be a "rear window" only, not a "side window." This is because the retractable glazing is positioned behind the roll bar in the side view, such that the view through it is obstructed by the roll bar. Since the retractable glazing is not considered to be a side window, it is not a location "that meets the criteria in S5.1.2.11(a)(2)(I) and (ii)." Since the location where you wish to place Item 4A Glazing meets neither S5.1.2.11(a)(1) nor (2), Item 4A Glazing may not be placed in the rear window.

I hope this information is helpful. If you have any specific questions about this letter, please contact Dorothy Nakama. If you have other questions about Standard No. 205, please contact Paul Atelsek. Both Ms. Nakama and Mr. Atelsek may be reached at (202) 366-2992.

Sincerely,
John Womack
Acting Chief Counsel
ref:205
d.3/31/98

ID: 3080o

Raymond M. Momboisse, Esq.
General Counsel
Immigration and Naturalization Service
U.S. Department of Justice
425 Eye Street, NW
Washington, DC 20536

Dear Mr. Momboisse:

Your letter of May 19, 1988, to the General Counsel of the Department of Transportation has been forwarded to this Office for reply. You request a waiver "exempting the Hummer vehicle from the Federal Motor Vehicle Safety Standards (FMVSS) when purchased directly from the manufacturer, AM General Corporation."

This response is based upon the information contained in your letter, and upon information my staff has obtained in telephone conversations with Ed Butkera of AM General Corporation, manufacturer of the Hummer, relating to its compliance with the Federal motor vehicle safety standards, and Gary Runyon of the Border Patrol, relating to the mission of that agency and the role the Hummer plays in it. According to our information, the Hummer is a vehicle which was developed specifically for, manufactured for, and sold exclusively to, the U.S. Army. The Border Patrol has bought Hummers from the Army because of certain features it finds advantageous in its operations, and its expanded missions involving interdiction of drugs. The principal reasons for your request are (1) that the Border Patrol desires to buy Hummers equipped with an assembly line addition (a central tire inflation system) is not incorporated on the Hummers sold to the Army, and (2) that, by buying directly from AM General Corporation, the Border Patrol will save $5,000 per vehicle, as the price of Army Hummers reflects the added expense of amortized development costs.

This agency has jurisdiction over "motor vehicles" as that term is defined by l5 U.S.C. 139l(3). If a vehicle is not a "motor vehicle," then the Federal motor vehicle safety standards do not apply to it. The exclusion of military vehicles from applicability of the safety standards in 49 C.F.R. 57l.7(a), which you quoted, is operative only if those vehicles would otherwise be "motor vehicles" required to comply with the standards.

Under l5 U.S.C. 1391(3), a "motor vehicle" is "any vehicle driven or drawn by mechanical power manufactured primarily for use on the public streets, roads, and highways...." The agency has interpreted this definition to exclude such vehicles as minibikes, golf carts, all-terrain vehicles, single seat racing cars used on closed courses, airport crash and rescue vehicles, and farm tractors. On the other hand, the agency has included in the definition farm trailers which haul produce over the public roads to processing centers, stock cars modified for racing unless such modifications are so extensive that the vehicle can no longer be licensed for use on the public roads, and vehicles capable of use both on rails and the public roads.

You have informed us that the Hummer will "generally only be used on public highways to travel between stations and assigned duty areas." However, you have also informed us that this will constitute approximately 30% of its operational time. Were we to consider this factor alone, we could not conclude that the Hummer was not a "motor vehicle." However, there are further factors that make the proper classification of the Hummer a close question. The Hummer was developed as a vehicle for military operations and not for civilian applications, its manufacturer does not advertise or sell it for civilian purposes, and its configuration is such that it probably could not be licensed for use on the public roads without modification of some of its original military specifications.

Resolution of this question is not necessary since the mission and method of operation of the Border Patrol provide a separate basis for concluding that the Hummers to be purchased by the Border Patrol are not subject to the FMVSS. We understand that one of the missions of the Border Patrol is to act as an agency of national security in protection of the country's borders to ensure that persons and goods enter and exit only through official Customs and Immigration stations, and that this role has become of paramount importance in the "war against drugs." In this enforcement effort, the Hummers of necessity carry firearms such as the M-l4 and M-16 rifles which the Army Hummer carries, can be equipped with military communications equipment enabling them to serve as command posts, and carry certain military equipment used for electronic interception and sensing movement. It further appears that in this mission the Border Patrol is not only equipped like a component of the Armed Forces of the United States, but also is trained and functions in many respects that are similar to such a component. Accordingly, for the purposes of applying the exclusionary phrase of 49 CFR 571.7(a), it is appropriate to regard the Border Patrol as being akin to a component of the Armed Forces of the United States. In consideration of the foregoing, the National Highway Traffic Safety Administration has concluded that AM General Corporation will not be in violation of the National Traffic and Motor Vehicle Safety Act if it manufactures and sells Hummers to the Border Patrol for its use as described in your letter.

Sincerely,

Erika Z. Jones Chief Counsel

/ref:VSA#101#571 d:l0/l8/88