ID: nht94-4.37

TYPE: INTERPRETATION-NHTSA

DATE: September 28, 1994

FROM: Paul N. Wagner, President, Bornemann Products, Inc.

TO: Mary Versailles -- Office of the Chief Counsel, NHTSA

TITLE: Re: F.M.V.S.S. #207 Seating Systems

ATTACHMT: ATTACHED TO LETTER DATED 12/23/94 FROM PHILIP R. RECHT TO PAUL N. WAGNER (A42; STD. 207); ALSO ATTACHED TO LETTER DATED 8/26/88 FROM ERIKA Z. JONES TO GLENN L. DUNCAN

TEXT: Request for Comment From Chief Counsel:

Earlier this year, the Agency amended F.M.V.S.S. #208 for seat belt comfort and fit by requiring in the future that designated seating positions have either an adjustable "D" ring or seat belts integrated into the seat (integrated seats). This letter is directed to an issue concerning integrated seats. An integrated seat is defined for now as a seat or seat system that the seat belts are located on the seating structure, in an all-belts-to-seat application; the pelvic portion of the belt may be attache d to the seat bottom, seat slides, or seat riser, while the "D" ring and shoulder belt is actually attached to the back of the seat itself.

Our firm is a manufacturer of seating systems for light trucks manufactured in more than one stage, and is considering the manufacture of integrated seating systems.

The questions we pose, which may already be before the Agency, are ones that relate to testing requirements for integrated seating. Referring to F.M.V.S.S. #207, S4.2.1, which states:

"SEAT ADJUSTMENT. Except for vertical movement of nonlocking suspension type occupant seats in trucks or buses, the seat shall remain in its adjusted position during the application of each force specified in S4.2."

Subparagraph S4.2 refers to specific static requirements for seating systems. When a seat belt system, such as those on integrated seats, are attached to the seating system, then the static loads of F.M.V.S.S. #207, S4.2, and F.M.V.S.S. #210, S4.2, are p erformed simultaneously.

ID: 9612

Mr. Eldon J. McLauchlin
President
Valley Automotive Specialties, Inc.
5805 East Sharp, Suite A-2
Spokane, Washington 99212

Dear Mr. McLauchlin:

This responds to your January 25, 1994, letter asking about how this agency's regulations might apply to your product, the Automated Fire Extinguisher System (AFES). You state that your product's purpose is to allow the operators and occupants of a vehicle to exit safely in the event of a fire. Apparently, the AFES sensors will detect smoke and heat and respond by automatically opening some sort of control valve, whereupon a manifold assembly with "strategically placed directional nozzles" will flood the passenger compartment with some sort of fire extinguisher/retardant. You do not state what kind of fire extinguisher/retardant is used. You explain that the automatic nature of this system will provide time to extract even an unconscious or incapacitated operator or occupant.

Apparently, the AFES has wide applicability. You explain that the AFES proto-type can be installed in a car, truck, boat, RV, or bus or other vehicle running on a 12 volt battery. Apparently you will modify the AFES so that it will run off the 110 volt current in homes and commercial buildings.

I am pleased to have this opportunity to explain our regulations. By way of background information, the National Highway Traffic Safety Administration (NHTSA) is authorized to issue Federal motor vehicle safety standards (FMVSS's) for new motor vehicles and new items of motor vehicle equipment. Section 102(4) of the National Traffic and Motor Vehicle Safety Act (the "Safety Act") defines, in relevant part, the term "motor vehicle equipment" as:

any system, part, or component of a motor vehicle as originally manufactured or any similar part or component manufactured or sold for replacement or improvement of such system, part, or component or as any accessory, or addition to the motor vehicle ... (emphasis added).

In determining whether an item of equipment is considered an accessory, NHTSA applies two criteria. The first criterion is whether a substantial portion of the expected use of the item is related to the operation or maintenance of motor vehicles. We determine a product's expected use by considering product advertising, product labeling, and the type of store that retails the product, as well as available information about the actual use of the product. The second criterion is whether the product is intended to be used principally by ordinary users of motor vehicles. If the product satisfies both criteria, then the product is considered to be an "accessory" and thus is subject to the provisions of the Safety Act.

Applying these criteria to the AFES, it appears that this product would be an accessory and thus an item of motor vehicle equipment under the Safety Act. Based on our understanding of the product, it appears that a substantial portion of the expected use of the AFES system relates to motor vehicle operation. The system is intended to protect anyone occupying a vehicle when a fire occurs. Also, it appears that the product would typically be used by ordinary users of motor vehicles.

While it appears that the AFES system is an item of motor vehicle equipment, NHTSA has not issued any standards for such a device. Nevertheless, there are other Federal laws that indirectly affect the manufacture and sale of your product. You as the product's manufacturer are subject to the requirements in sections 151-159 of the Safety Act concerning the recall and remedy of products with defects related to motor vehicle safety. In the event that the 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.

We have some concerns about the safety impacts if the AFES were to activate while the vehicle is moving. Is it possible, for example, that a driver smoking in the car on a hot day could accidentally set off the sensors, or that they could malfunction spontaneously? Although we do not know what will be coming through the nozzles (fluid, foam, and inert gases are common fire extinguishing agents), we are concerned that AFES activation could cause the driver to lose control in what is otherwise a controllable situation. We urge you to thoroughly consider these and other factors that could affect the safety of motor vehicle operation.

If the AFES were installed by a vehicle manufacturer as original equipment, the vehicle manufacturer would have to certify that the vehicle with the AFES installed complies with all FMVSS's. Among the FMVSS's that might be affected by certain AFES installations are Standard No. 201, "Occupant Protection in Interior Impact," and Standard No. 208, "Occupant Crash Protection."

A commercial business that installs the AFES system would also be subject to provisions of the Safety Act that affect modifications of new or used vehicles. Section 108(a)(2)(A) of the Safety Act (15 U.S.C. 1397(a)(2)(A)) provides that:

No manufacturer, distributor, dealer, or motor vehicle repair business shall knowingly render inoperative, in whole or in part, any device or element of design installed on or in a motor vehicle ... in compliance with an applicable Federal motor vehicle safety standard.

This means that a manufacturer, distributor, dealer, or motor vehicle repair business must not install your device if the system renders inoperative the vehicle's compliance with the FMVSS's. For instance, compliance with Standard No. 208 might be degraded if it were necessary to mount the AFES manifold or directional nozzles in front of the driver or passenger. Any violation of this "render inoperative" prohibition would subject the violator to a potential civil penalty of up to $1,000 for each violation.

Please note also that the render inoperative prohibition does not apply to modifications that vehicle owners make to their own vehicles. Thus, Federal law would not apply in situations where individual vehicle owners install the AFES 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, individual States have the authority to regulate modifications that individual vehicle owners may make to their vehicles, so 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 about NHTSA's safety standards, please feel free to contact us at this address or by telephone at (202) 366-2992.

Sincerely,

John Womack Acting Chief Counsel

Enclosure ref:VSA d:4/12/94

ID: nht94-6.35

DATE: April 12, 1994

FROM: John Womack -- Acting Chief Counsel, NHTSA

TO: Eldon J. McLauchlin -- President, Valley Automotive Specialties, Inc. (Spokane, Washington)

TITLE: None

ATTACHMT: Attached to letter dated 1/25/94 from Eldon J. McLauchlin to John Womack (OCC 9612)

TEXT:

This responds to your January 25, 1994, letter asking about how this agency's regulations might apply to your product, the Automated Fire Extinguisher System (AFES). You state that your product's purpose is to allow the operators and occupants of a vehicle to exit safely in the event of a fire. Apparently, the AFES sensors will detect smoke and heat and respond by automatically opening some sort of control valve, whereupon a manifold assembly with "strategically placed directional nozzles" will flood the passenger compartment with some sort of fire extinguisher/retardant. You do not state what kind of fire extinguisher/retardant is used. You explain that the automatic nature of this system will provide time to extract even an unconscious or incapacitated operator or occupant.

Apparently, the AFES has wide applicability. You explain that the AFES proto-type can be installed in a car, truck, boat, RV, or bus or other vehicle running on a 12 volt battery. Apparently you will modify the AFES so that it will run off the 110 volt current in homes and commercial buildings.

I am pleased to have this opportunity to explain our regulations. By way of background information, the National Highway Traffic Safety Administration (NHTSA) is authorized to issue Federal motor vehicle safety standards (FMVSS'S) for new motor vehicles and new items of motor vehicle equipment. Section 102(4) of the National Traffic and Motor Vehicle Safety Act (the "Safety Act") defines, in relevant part, the term "motor vehicle equipment" as:

any system, part, or component of a motor vehicle as originally manufactured or any similar part or component manufactured or sold for replacement or improvement of such system, part, or component OR AS ANY ACCESSORY, or addition to the motor vehicle... (emphasis added).

In determining whether an item of equipment is considered an accessory, NHTSA applies two criteria. The first criterion is whether a substantial portion of the expected use of the item is related to the operation or maintenance of motor vehicles. We determine a product's expected use by considering product advertising, product labeling, and the type of store that retails the product, as well as available information about the actual use of the product. The second criterion is whether the product is intended to be used principally by ordinary users of motor vehicles. If the product satisfies both criteria, then the product is considered to be an "accessory" and thus is subject to the provisions of the Safety Act.

Applying these criteria to the AFES, it appears that this product would be an accessory and thus an item of motor vehicle equipment under the Safety Act. Based on our understanding of the product, it appears that a substantial

portion of the expected use of the AFES system relates to motor vehicle operation. The system is intended to protect anyone occupying a vehicle when a fire occurs. Also, it appears that the product would typically be used by ordinary users of motor vehicles.

While it appears that the AFES system is an item of motor vehicle equipment, NHTSA has not issued any standards for such a device. Nevertheless, there are other Federal laws that indirectly affect the manufacture and sale of your product. You as the product's manufacturer are subject to the requirements in sections 151-159 of the Safety Act concerning the recall and remedy of products with defects related to motor vehicle safety. In the event that the 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.

We have some concerns about the safety impacts if the AFES were to activate while the vehicle is moving. Is it possible, for example, that a driver smoking in the car on a hot day could accidentally set off the sensors, or that they could malfunction spontaneously? Although we do not know what will be coming through the nozzles (fluid, foam, and inert gases are common fire extinguishing agents), we are concerned that AFES activation could cause the driver to lose control in what is otherwise a controllable situation. We urge you to thoroughly consider these and other factors that could affect the safety of motor vehicle operation.

If the AFES were installed by a vehicle manufacturer as original equipment, the vehicle manufacturer would have to certify that the vehicle with the AFES installed complies with all FMVSS's. Among the FMVSS's that might be affected by certain AFES installations are Standard No. 201, "Occupant Protection in Interior Impact," and Standard No. 208, "Occupant Crash Protection."

A commercial business that installs the AFES system would also be subject to provisions of the Safety Act that affect modifications of new or used vehicles. Section 108(a)(2)(A) of the Safety Act (15 U.S.C. 1397(a)(2)(A)) provides that:

No manufacturer, distributor, dealer, or motor vehicle repair business shall knowingly render inoperative, in whole or in part, any device or element of design installed on or in a motor vehicle ... in compliance with an applicable Federal motor vehicle safety standard.

This means that a manufacturer, distributor, dealer, or motor vehicle repair business must not install your device if the system renders inoperative the vehicle's compliance with the FMVSS's. For instance, compliance with Standard No. 208 might be degraded if it were necessary to mount the AFES manifold or directional nozzles in front of the driver or passenger. Any violation of this "render inoperative" prohibition would subject the violator to a potential civil penalty of up to $1,000 for each violation.

Please note also that the render inoperative prohibition does not apply to modifications that vehicle owners make to their own vehicles. Thus, Federal law would not apply in situations where individual vehicle owners install the AFES 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, individual States have the authority to regulate modifications that individual vehicle owners may make to their vehicles, so 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 about NHTSA's safety standards, please feel free to contact us at this address or by telephone at (202) 366-2992.

ID: 19753.wkm

Mr. Anthony DeFilippo
Goodyear Tire & Rubber Company
Attn: DOT LAB
#1 Goodyear Boulevard
Lawton, OK 73505

Dear Mr. DeFilippo:

This responds to your inquiry, telefaxed to this office on March 18, 1999, seeking our approval for your proposed modification of the bead unseating fixture currently depicted in Figure 1, Bead Unseating Fixture, of Federal Motor Vehicle Safety Standard (Standard) No. 109, New pneumatic tires.

You would like to modify the test fixture so that you would have more flexibility to test tires of very different sizes. You state that you produce very large tires for vehicles such as the Plymouth Prowler and the Chevrolet Corvette, among others, and that you also produce small tires. You want to modify the fixture shown in Standard No. 109 to attach the shoe and mounting plate directly to the hydraulic cylinder, as depicted in your enclosed drawing, to allow easier loading and unloading of tires, as well as to make the process more ergonomically correct, by permitting use of a motorized hoist.

You do not need our approval to modify the test fixture. The test procedures specified in the Federal motor vehicle safety standards (FMVSS) are the procedures on which the performance requirements of the FMVSSs are based and which this agency uses in its testing of motor vehicles and equipment for compliance with the FMVSSs. The FMVSSs, including Standard No. 109, do not specify the testing that manufacturers must do. The standards specify the performance levels that motor vehicles and equipment must meet when tested in accordance with the procedures set forth in the standard.

NHTSA does not specify test procedures applicable to manufacturers, and does not give approvals to manufacturers' test procedures. As stated above, manufacturers are required to certify that their products comply with all applicable FMVSSs. While the surest way to assure compliance would be to test tires in accordance with the test procedures specified in Standard No. 109, you are not legally obligated to do so.

Please note that we are not in a position to comment on ISO requirements. You should contact ISO representatives for information about that organization's test requirements.

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

Sincerely,
Frank Seales, Jr.
Chief Counsel
ref:109
d.6/10/99

ID: 19809-1.bk!

Mr. Stuart Leopold
President
DGS Enterprises, Ltd.
2800 Covered Bridge Road
Merrick, NY 11566

Dear Mr. Leopold:

This responds to your letter of April 1, 1999, addressed to Walter Myers of my staff, in which you sought clarification of my letter to you of March 30, 1999. You stated that the people to whom you would like to show my March 30 letter might not understand some of the legal discussions. You asked, therefore, that we rephrase the March 30 letter to state that the use of "Tire Mend" is neither endorsed nor prohibited by the Federal motor vehicle safety standards (FMVSSs).

I am sorry you found that our earlier letter might be difficult for some people to understand. However, there is a limit to the extent to which we can simplify our discussion of how various requirements in 49 U. S. Code, Chapter 301 (Safety Act) might affect your product.

We are charged with enforcing the Safety Act in its entirety and not just the FMVSSs. In considering how a product may be affected by the statutes and regulations we administer, we consider application of the many different parts of the Safety Act. We also consider the various persons who may ultimately read our opinion letters.

I stated in my March 30 letter that because of the self-certification system established by the Safety Act, we neither "approve, disapprove, test, endorse, or certify" motor vehicles, motor vehicle equipment, or related products. I also said in my letter that "the National Highway Traffic Safety Administration has not issued any FMVSSs specifically applicable to substances such as 'Tire Mend'".

We cannot make the categorical statement, however, that the use of "Tire Mend" is not prohibited under the Safety Act. I explained the "make inoperative" provision of the Safety Act in my letter. As applied to your product, the issue is not whether the product is expressly addressed in the FMVSSs, but whether a provision of the Safety Act would prohibit the installation of "Tire Mend" if the product adversely affected the compliance of a tire with the FMVSSs. I also explained that the "make inoperative" provision applies only to manufacturers, distributors, dealers, and repair businesses, but does not apply to vehicle owners. Nevertheless, this agency encourages vehicle owners to maintain the safety of their vehicles and equipment and not make changes that would adversely affect compliance with a safety standard.

I hope this explanation of my March 30 letter is helpful to you.

Sincerely,
Frank Seales, Jr.
Chief Counsel
ref:119
d.6/23/99

ID: 8442

Mr. Kirk Brown
Secretary
Illinois Department of Transportation
2300 South Dirksen Parkway
Springfield, IL 62764

Dear Mr. Brown:

This responds to your letter of March 15, 1993, inquiring "whether modifying the throttle controls on a school bus so that a short person can operate it would jeopardize the manufacturer's certification that a bus is in compliance with the Federal Motor Vehicle Safety Standards" (FMVSS's).

By way of background, the National Traffic and Motor Vehicle Safety Act (15 U.S.C. 1381 et seq.; Safety Act) authorizes NHTSA to issue FMVSS's that apply to the manufacture and sale of new motor vehicles and new items of motor vehicle equipment. NHTSA has exercised its authority under the Safety Act to establish Standard No. 124, Accelerator Control Systems (49 CFR Part 571.124). Standard No. 124 "establishes requirements for the return of a vehicle's throttle to the idle position when the driver removes the actuating force from the accelerator control." The Safety Act requires each vehicle manufacturer to certify that its vehicle complies with all applicable safety standards, including Standard No. 124. This certification process requires each manufacturer to determine in the exercise of due care that its products meet all applicable requirements.

If the throttle control or other equipment on the new school bus were modified by the bus manufacturer, the bus manufacturer must ensure that the vehicle meets all applicable FMVSS's, including Standard No. 124. If the throttle control or other equipment were modified on a new bus prior to its first sale, the person who modifies the vehicle would probably be an alterer of a previously certified motor vehicle. As an alterer, that person would be required to certify that, as altered, the vehicle continues to comply with all of the safety standards affected by the modification. (See 49 CFR 567.7.)

If the modification is made after the vehicle's first sale, the only NHTSA requirement that would affect the modification is the "render inoperative" prohibition in 108(a)(2)(A) of the Safety Act (15 U.S.C. 1397(a)(2)(A)). That section provides that:

No manufacturer, distributor, dealer, or motor vehicle repair business shall knowingly render inoperative, in whole or in part, any device or element of design installed on or in a motor vehicle ... in compliance with an applicable Federal motor vehicle safety standard.

The "render inoperative" provision would prohibit a commercial business from modifying the throttle in a manner that would negatively affect the vehicle's compliance with Standard No. 124. If the throttle control was built up in a way that prevented the throttle from returning to idle when the driver removed his or her foot, it would violate the render inoperative prohibition.

You ask whether NHTSA could grant a waiver to allow a school bus company to modify the throttle control on its vehicles. The Safety Act provides that NHTSA may by regulation exempt a person from the "render inoperative" prohibition if the agency determines that an exemption is consistent with motor vehicle safety and the purposes of the Act. Based on the information in your letter, we believe it would be unlikely that the agency would decide that an exemption is appropriate for any modification that would prevent the throttle from returning to idle. Such an exemption would increase the incidence of engine overspeed and the likelihood of possible crashes resulting from this condition. That the vehicle is question is a school bus makes the safety concerns even more compelling.

You should be aware that the "render inoperative" prohibition only applies to the commercial entities listed in 108(a)(2)(A) of the Safety Act. Owners may modify their vehicles without violating any laws or regulations administered by this agency. However, NHTSA encourages vehicle owners not to tamper with vehicle safety equipment if the modification would degrade the safety of the vehicle.

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

Sincerely,

John Womack Acting Chief Counsel ref:124#VSA d:4/22/93

ID: nht93-3.12

DATE: April 22, 1993

FROM: John Womack -- Acting Chief Counsel, NHTSA

TO: Kirk Brown -- Secretary, Illinois Department of Transportation

TITLE: None

ATTACHMT: Attached to letter dated 3-15-93 from Kirk Brown to John Womack (OCC 8442)

TEXT: This responds to your letter of March 15, 1993, inquiring "whether modifying the throttle controls on a school bus so that a short person can operate it would jeopardize the manufacturer's certification that a bus is in compliance with the Federal Motor Vehicle Safety Standards" (FMVSS's).

By way of background, the National Traffic and Motor Vehicle Safety Act (15 U.S.C. S1381 ET SEQ.; Safety Act) authorizes NHTSA to issue FMVSS's that apply to the manufacture and sale of new motor vehicles and new items of motor vehicle equipment. NHTSA has exercised its authority under the Safety Act to establish Standard No. 124, ACCELERATOR CONTROL SYSTEMS (49 CFR Part 571.124). Standard No. 124 "establishes requirements for the return of a vehicle's throttle to the idle position when the driver removes the actuating force from the accelerator control." The Safety Act requires each vehicle manufacturer to certify that its vehicle complies with all applicable safety standards, including Standard No. 124. This certification process requires each manufacturer to determine in the exercise of due care that its products meet all applicable requirements.

If the throttle control or other equipment on the new school bus were modified by the bus manufacturer, the bus manufacturer must ensure that the vehicle meets all applicable FMVSS's, including Standard No. 124. If the throttle control or other equipment were modified on a new bus prior to its first sale, the person who modifies the vehicle would probably be an alterer of a previously certified motor vehicle. As an alterer, that person would be required to certify that, as altered, the vehicle continues to comply with all of the safety standards affected by the modification. (See 49 CFR S567.7.)

If the modification is made after the vehicle's first sale, the only NHTSA requirement that would affect the modification is the "render inoperative" prohibition in S108(a)(2)(A) of the Safety Act (15 U.S.C. 1397(a)(2)(A)). That section provides that:

No manufacturer, distributor, dealer, or motor vehicle repair business shall knowingly render inoperative, in whole or in part, any device or element of design installed on or in a motor vehicle ... in compliance with an applicable Federal motor vehicle safety standard.

The "render inoperative" provision would prohibit a commercial business from modifying the throttle in a manner that would negatively affect the vehicle's compliance with Standard No. 124. If the throttle control was built up in a way that prevented the throttle from returning to idle when the driver removed his or her foot, it would violate the render inoperative prohibition.

You ask whether NHTSA could grant a waiver to allow a school bus company to modify the throttle control on its vehicles. The Safety Act provides that

NHTSA may by regulation exempt a person from the "render inoperative" prohibition if the agency determines that an exemption is consistent with motor vehicle safety and the purposes of the Act. Based on the information in your letter, we believe it would be unlikely that the agency would decide that an exemption is appropriate for any modification that would prevent the throttle from returning to idle. Such an exemption would increase the incidence of engine overspeed and the likelihood of possible crashes resulting from this condition. That the vehicle in question is a school bus makes the safety concerns even more compelling.

You should be aware that the "render inoperative" prohibition only applies to the commercial entities listed in S108(a)(2)(A) of the Safety Act. Owners may modify their vehicles without violating any laws or regulations administered by this agency. However, NHTSA encourages vehicle owners not to tamper with vehicle safety equipment if the modification would degrade the safety of the vehicle.

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

ID: nht94-2.31

TYPE: Interpretation-NHTSA

DATE: April 12, 1994

FROM: John Womack -- Acting Chief Counsel, NHTSA

TO: Eldon J. McLauchlin -- President, Valley Automotive Specialties, Inc. (Spokane, Washington)

TITLE: None

ATTACHMT: Attached to letter dated 1/25/94 from Eldon J. McLauchlin to John Womack (OCC 9612)

TEXT:

This responds to your January 25, 1994, letter asking about how this agency's regulations might apply to your product, the Automated Fire Extinguisher System (AFES). You state that your product's purpose is to allow the operators and occupants of a vehi cle to exit safely in the event of a fire. Apparently, the AFES sensors will detect smoke and heat and respond by automatically opening some sort of control valve, whereupon a manifold assembly with "strategically placed directional nozzles" will flood the passenger compartment with some sort of fire extinguisher/retardant. You do not state what kind of fire extinguisher/retardant is used. You explain that the automatic nature of this system will provide time to extract even an unconscious or incapac itated operator or occupant.

Apparently, the AFES has wide applicability. You explain that the AFES proto-type can be installed in a car, truck, boat, RV, or bus or other vehicle running on a 12 volt battery. Apparently you will modify the AFES so that it will run off the 110 volt current in homes and commercial buildings.

I am pleased to have this opportunity to explain our regulations. By way of background information, the National Highway Traffic Safety Administration (NHTSA) is authorized to issue Federal motor vehicle safety standards (FMVSS'S) for new motor vehicles and new items of motor vehicle equipment. Section 102(4) of the National Traffic and Motor Vehicle Safety Act (the "Safety Act") defines, in relevant part, the term "motor vehicle equipment" as:

any system, part, or component of a motor vehicle as originally manufactured or any similar part or component manufactured or sold for replacement or improvement of such system, part, or component OR AS ANY ACCESSORY, or addition to t he motor vehicle... (emphasis added).

In determining whether an item of equipment is considered an accessory, NHTSA applies two criteria. The first criterion is whether a substantial portion of the expected use of the item is related to the operation or maintenance of motor vehicles. We de termine a product's expected use by considering product advertising, product labeling, and the type of store that retails the product, as well as available information about the actual use of the product. The second criterion is whether the product is i ntended to be used principally by ordinary users of motor vehicles. If the product satisfies both criteria, then the product is considered to be an "accessory" and thus is subject to the provisions of the Safety Act.

Applying these criteria to the AFES, it appears that this product would be an accessory and thus an item of motor vehicle equipment under the Safety Act. Based on our understanding of the product, it appears that a substantial

portion of the expected use of the AFES system relates to motor vehicle operation. The system is intended to protect anyone occupying a vehicle when a fire occurs. Also, it appears that the product would typically be used by ordinary users of motor veh icles.

While it appears that the AFES system is an item of motor vehicle equipment, NHTSA has not issued any standards for such a device. Nevertheless, there are other Federal laws that indirectly affect the manufacture and sale of your product. You as the pr oduct's manufacturer are subject to the requirements in sections 151-159 of the Safety Act concerning the recall and remedy of products with defects related to motor vehicle safety. In the event that the 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.

We have some concerns about the safety impacts if the AFES were to activate while the vehicle is moving. Is it possible, for example, that a driver smoking in the car on a hot day could accidentally set off the sensors, or that they could malfunction sp ontaneously? Although we do not know what will be coming through the nozzles (fluid, foam, and inert gases are common fire extinguishing agents), we are concerned that AFES activation could cause the driver to lose control in what is otherwise a control lable situation. We urge you to thoroughly consider these and other factors that could affect the safety of motor vehicle operation.

If the AFES were installed by a vehicle manufacturer as original equipment, the vehicle manufacturer would have to certify that the vehicle with the AFES installed complies with all FMVSS's. Among the FMVSS's that might be affected by certain AFES insta llations are Standard No. 201, "Occupant Protection in Interior Impact," and Standard No. 208, "Occupant Crash Protection."

A commercial business that installs the AFES system would also be subject to provisions of the Safety Act that affect modifications of new or used vehicles. Section 108(a)(2)(A) of the Safety Act (15 U.S.C. 1397(a)(2)(A)) provides that:

No manufacturer, distributor, dealer, or motor vehicle repair business shall knowingly render inoperative, in whole or in part, any device or element of design installed on or in a motor vehicle ... in compliance with an applicable F ederal motor vehicle safety standard.

This means that a manufacturer, distributor, dealer, or motor vehicle repair business must not install your device if the system renders inoperative the vehicle's compliance with the FMVSS's. For instance, compliance with Standard No. 208 might be degra ded if it were necessary to mount the AFES manifold or directional nozzles in front of the driver or passenger. Any violation of this "render inoperative" prohibition would subject the violator to a potential civil penalty of up to $1,000 for each viola tion.

Please note also that the render inoperative prohibition does not apply to modifications that vehicle owners make to their own vehicles. Thus, Federal law would not apply in situations where individual vehicle owners install the AFES in their own vehicl es, 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, individual States have the authority to regulate modifications that individual vehicle owners may make to their vehicles, so 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 about NHTSA's safety standards, please feel free to contact us at this address or by telephone at (202) 366-2992.

ID: 2852yy

Mr. William A. Batten
Eaton Corporation
Truck Components Operations
P.O. Box 4013
Kalamazoo, MI 49003

Dear Mr. Batten:

This responds to your letter and telephone conversation with Ms. Fujita of my staff concerning Federal Motor Vehicle Safety Standard (FMVSS) No. 124, Accelerator Control Systems. You asked about the standard's "applicable mileage requirement or time domain" for a truck with a gross vehicle weight rating greater than 10,000 pounds. You informed Ms. Fujita that, stated differently, your question is whether NHTSA requires a used vehicle to continue to meet an FMVSS, and if the answer is yes, for what mileage or amount of time the vehicle must meet the standard.

Generally speaking, the answer is no. NHTSA is authorized by the National Traffic and Motor Vehicle Safety Act (Safety Act) to regulate the manufacture and sale of new motor vehicles and motor vehicle equipment. The Safety Act requires a vehicle to comply with applicable FMVSS's until its first purchase in good faith for purposes other than resale.

However, you should be aware that manufacturers, distributors, dealers, or motor vehicle repair businesses modifying a vehicle (new or used) are prohibited by section l08(a)(2)(A) of the Safety Act from knowingly rendering inoperative any device or element of design installed on or in a motor vehicle in compliance with an applicable FMVSS. Thus, in the context of Standard No. l24, a person in the aforementioned categories is prohibited from rendering inoperative an accelerator control system that has been installed in compliance with that standard.

In addition, if the in-use deterioration of the performance of a vehicle or one of its components creates a safety risk, it could constitute a safety-related defect. Pursuant to sections l5l-l54 of the Safety Act, manufacturers are required to notify NHTSA and owners of such safety-related defects and to remedy such defects without charge. Thus, if the accelerator control systems on your vehicles deteriorate such that they no longer would comply with Standard No l24 and create an unsafe situation, that could be the basis for a defect determination, even though the vehicles met all applicable safety standards when they were new.

I also note that our sister agency in the Department, the Federal Highway Administration (FHWA), has operational and equipment requirements for trucks used in interstate commerce. If you are interested in that agency's requirements, you can write to them at the following address:

Office of Motor Carrier Standards Federal Highway Administration 400 Seventh Street, S.W. Washington, D.C. 20590

I hope this information is helpful.

Sincerely,

Paul Jackson Rice Chief Counsel

/ref:124#VSA d:3/4/9l

ID: nht91-2.7

DATE: March 4, 1991

FROM: Paul Jackson Rice -- Chief Counsel, NHTSA

TO: William A. Batten -- Eaton Corporation, Truck Components Operations

TITLE: None

ATTACHMT: Attached to letter dated 11-28-90 from William A. Batten to Paul Jackson Rice (OCC 5517)

TEXT:

This responds to your letter and telephone conversation with Ms. Fujita of my staff concerning Federal Motor Vehicle Safety Standard (FMVSS) No. 124, Accelerator Control Systems. You asked about the standard's "applicable mileage requirement or time domain" for a truck with a gross vehicle weight rating greater than 10,000 pounds. You informed Ms. Fujita that, stated differently, your question is whether NHTSA requires a used vehicle to continue to meet an FMVSS, and if the answer is yes, for what mileage or amount of time the vehicle must meet the standard.

Generally speaking, the answer is no. NHTSA is authorized by the National Traffic and Motor Vehicle Safety Act (Safety Act) to regulate the manufacture and sale of new motor vehicles and motor vehicle equipment. The Safety Act requires a vehicle to comply with applicable FMVSS's until its first purchase in good faith for purposes other than resale.

However, you should be aware that manufacturers, distributors, dealers, or motor vehicle repair businesses modifying a vehicle (new or used) are prohibited by section 108(a)(2)(A) of the Safety Act from knowingly rendering inoperative any device or element of design installed on or in a motor vehicle in compliance with an applicable FMVSS. Thus, in the context of Standard No. 124, a person in the aforementioned categories is prohibited from rendering inoperative an accelerator control system that has been installed in compliance with that standard.

In addition, if the in-use deterioration of the performance of a vehicle or one of its components creates a safety risk, it could constitute a safety-related defect. Pursuant to sections 151-154 of the Safety Act, manufacturers are required to notify NHTSA and owners of such safety-related defects and to remedy such defects without charge. Thus, if the accelerator control systems on your vehicles deteriorate such that they no longer would comply with Standard No 124 and create an unsafe situation, that could be the basis for a defect determination, even though the vehicles met all applicable safety standards when they were new.

I also note that our sister agency in the Department, the Federal Highway Administration (FHWA), has operational and equipment requirements for trucks used in interstate commerce. If you are interested in that agency's requirements, you can write to them at the following address:

Office of Motor Carrier Standards Federal Highway Administration 400 Seventh Street, S.W.

Washington, D.C. 20590

I hope this information is helpful.