ID: 77-3.26

TYPE: INTERPRETATION-NHTSA

DATE: 07/13/77

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

TO: American Trailers, Inc.

TITLE: FMVSR INTERPRETATION

TEXT: This responds to your May 25, 1977, letter asking whether two sample certification labels you submitted comply with the requirements of Part 567, Certification, and Standard No. 120, Tire Selection and Rims for Motor Vehicles Other Than Passenger Cars.

The National Highway Traffic Safety Administration (NHTSA) does not issue advance approvals of compliance with Federal safety standards or regulations. The agency will, however, give you an informal opinion as to whether your labels appear to comply with the requirements. The two labels you submitted do not follow the format required by Part 567 for certification labels. Therefore, they do not appear to comply with the requirements. Your method of stating tire and rim sizes differs from that required in Part 567 and Standard No. 120. For example, you state your tire and rim information as follows: "10-20-F-Tires-7.5 Rims at 75 PSI Cold Dual." By the requirements of Part 567 and Standard No. 120 as they apply to certification labels, this information should read: "10.00-20(F) tires, 20x7.5 rims, at 75 psi cold dual." Further, the statement after GAWR "maximum with minimum size tire-rims shown below" should be deleted from the certification label. I am enclosing a copy of Part 567 and Standard No. 120 for your information.

SINCERELY,

American Trailers, Inc.

May 25, 1977

Office of the Chief Counsel National Highway Traffic Safety Admin. U.S. Department of Transportation

We would appreciate an opinion on the following proposed certification plates for compliance with FMVSS-120. Effective September 1, 1977.

PLATE "B" - This plate would service 98% of our production, in that 10:00-20 "F" tires are the lowest capacity-rated standard tires installed-the other option, i.e. 11-22.5, 10:00-22, 11-24.5 "F" tires are all capacity rated above the 19,040 lbs. GAWR that we certify on the plate. The 10:00-20 "R" tires are included because the psi rating changes, we still rate the "R" tires at the same 19,040 lbs. which is consistant with the GVWR shown on the plate.

PLATE "C" - This plate would be used in the other 2% of our production. The tire selection in these cases is always of a lower capacity-rated tire than the 19,040 lbs. GAWR for the 10:00-20 "F" tire shown on Plate "b". The GAWR used on this plate would be according to the tire manufacture's rating and the GVWR would be decreased accordingly.

We feel that Plate "B" meets the full intent of FMVSS-120, in that it states the maximum GAWR for the smallest standard tire used in the majority of our production. Even though the trailer is equipped with a higher capacity-rated tire we do not increase the GAWR above the 19,040 lb. figure The use of the term "All Axles" readily identifies, and would be much clearer to the end user.

With a 45 day leadtime on procurement of certification plates, your timely response will be appreciated so that compliance requirements may be achieved by the September 1 deadline.

Jerry W. McNeil Director of Engineering

American trailers, inc. OKLAHOMA CITY, OKLA.

ID: nht94-3.83

TYPE: INTERPRETATION-NHTSA

DATE: July 29, 1994

FROM: Roger Matoba

TO: Patricia Breslin -- Office of Vehicle Safety Standards, NHTSA

TITLE: Subject: Shoulder Belts for Passenger Vans

ATTACHMT: ATTACHED TO LETTER DATED 12-28-94 FROM PHILIP R. RECHT (JOHN WOMACK) TO ROGER MATOBA (A42; STD. 208)

TEXT: This letter is a request to review the requirement for shoulder belts for "outboard passengers" on passenger van vehicles. Current vehicle manufacturer's interpretation of Rule FMVSS-208 calls for the installation of shoulder type seatbelts on righthand and lefthand outboard passenger seating positions. This creates a potential safety hazard on benchseat passenger van vehicles with side aisle access to rear seating locations. Manufacturers are installing shoulder type seat belts for passengers locate d on the righthand side of the vehicle. When these shoulder type belts are latched into position, they cross the side passenger aisle way, making it impossible for passengers in rear seating locations to exit or enter a vehicle. Should an emergency situ ation occur, rear seat passengers will be unable to quickly and safely evacuate a vehicle. Likewise, emergency personnel will be unable to quickly enter the rear portion of the vehicle to render aid.

The 1992 model year van passenger vehicles are equipped with standard lapbelts for rightside passengers next to the aisle, and shoulder belts for the leftside outboard passengers next to the window. In 1993, this was changed to comply with FMVSS-208 for all "outboard passenger" seating positions to be equipped with shoulder type belts. This has resulted in the situation described above where rear seat passengers cannot exit past middle seat passengers who have their outboard shoulder seatbelts latched into place.

I propose that this rule be changed, or clarified, to eliminate the requirement for shoulder type belts on outboard seat positions when the seat position is located next to a side aisle way. Right side aisles are typically 12-16 inches wide from the veh icle wall to the seat. Passengers seated on the righthand side of the vehicle in this seat position are not actually "outboard passengers" since there is an aisle space between them and the vehicle wall. Attached is an illustration showing typical seat ing arrangements in passenger vans with rightside aisle ways. Please note that all passenger seats next to the right side aisle have shoulder type belts that cross the aisle. This arrangement of shoulder type belts is a safety hazard because they block the only reasonable emergency path in the vehicle.

As an alternative solution to keeping the current safety rule in place as written, center aisles with split bench seats in van passenger vehicles could be mandated. This would allow for shoulder type belts in outboard seat positions and not hinder emerg ency egress from the vehicle through the center aisle.

I purchased a 1992 model year passenger van instead of a 1993 model year for the very reasons I've described here. I felt the shoulder belt requirement for 1993, and 1994, was not only inconvenient for passengers, but potentially dangerous.

Enclosure

WAGON SEATING ARRANGEMENTS (TEXT AND GRAPHICS OMITTED)

ID: nht93-1.30

DATE: 02/09/93

FROM: JOHN WOMACK -- ACTING CHIEF COUNSEL, NHTSA

TO: M.K. CHAUDHARI -- DIRECTOR ARAI/ THE AUTOMOTIVE RESEARCH ASSOCIATION OF INDIA

TITLE: NONE

ATTACHMT: ATTACHED TO LETTER DATED 11-16-92 FROM M. K. CHAUDHARI TO PAUL JACKSON RICE (OCC 8083)

TEXT: This responds to your follow-up letter of November 16, 1992, subsequent to our response, dated August 12, 1992, to your earlier letter. I am pleased that the information given you in our previous letter is proving helpful in your work. In your current letter you request information regarding DOT certification of automotive components in general, and "brake hose ends" in particular.

I would like to clarify the relevant points made in our last letter to clear up any misunderstandings. Neither the Department of Transportation (DOT), nor the National Highway Traffic Safety Administration (NHTSA, a part of DOT) conduct any certification testing. Under the National Traffic and Motor Vehicle Safety Act (Safety Act), a copy of which I have enclosed, the manufacturer is responsible for certifying that its components or vehicles are in compliance with NHTSA's safety standards.

Manufacturers must have some basis for their certification that a product complies with all applicable safety standards. This does not necessarily mean that a manufacturer must conduct the specific tests set forth in an applicable standard. Certifications may be based on, among other things, engineering analyses, actual testing, and computer simulations.

NHTSA test vehicles and equipment sold to consumers for compliance with the FMVSS's and investigates defects relating to motor vehicle safety. If a manufacturer or NHTSA determines that a noncompliance or safety-related defect exists, the manufacturer must notify purchasers of its product and remedy the problem free of charge. A manufacturer of noncomplying or defective products is also subject to civil penalties.

With respect to your specific question about "brake hose ends," Standard No. 106, "Brake Hoses," applies to new motor vehicles and to "brake hoses" (which include plastic tubing), brake hose end fittings, and brake hose assemblies. A copy of the standard is enclosed. The standard specifies labeling and performance requirements for these products to reduce the likelihood of brake system failure from ruptures in the brake hose or brake hose assembly. New brake hoses, end fittings, and assemblies must meet these requirements to be sold in or imported into this country. If the items do not comply, the manufacturer is subject to the civil penalties and the recall responsibilities mentioned above.

I have enclosed a copy of the test procedure manual used by the agency in its tests to verify compliance of the brake hoses. However, please see the Note on page 1 of the procedure manual regarding a manufacturer's certification testing.

NHTSA does not authorize testing agencies to perform certification procedures. Therefore, we cannot provide a list of the agencies in India or elsewhere that are capable of certifying motor vehicles or motor vehicle equipment.

I hope this information clarifies NHTSA's role in the certification process. If you have any further questions about NHTSA's safety standards, please feel free to contact David Elias of my staff at this address or by telephone at (202) 366-2992. Our fax number is (202) 366-3820.

ID: nht95-2.24

TYPE: INTERPRETATION-NHTSA

DATE: April 10, 1995

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

TO: Glen Gramse -- Minnesota State Police

TITLE: NONE

TEXT: Dear Major Gramse:

It has been brought to our attention by Mr. R. C. Rost of Minnesota Body and Equipment that there is a question regarding Minnesota's law concerning buses used for Head Start programs. According to Mr. Rost, Minnesota prohibits these buses from being eq uipped with flashing lights and stop signal arms. He requested the National Highway Traffic Safety Administration (NHTSA) to clarify any inconsistencies between the Federal and State law.

As explained below, to the extent there is a conflict between Federal and State law, Federal law would prevail in this matter. All manufacturers and sellers of new school buses must comply with the Federal law by manufacturing and selling vehicles that are equipped with school bus lights and stop signal arms.

By way of background, Congress has directed this agency to issue Federal motor vehicle safety standards, which apply to the manufacture and sale of new motor vehicles. NHTSA has issued a number of FMVSSs for school buses, including ones requiring these buses to have warning lights and stop arms. The Federal law requires that each person selling a new bus (defined in our regulations as a vehicle designed for 11 or more persons) to a primary, preprimary, or secondary school must sell a bus that is certi fied to the FMVSSs for school buses. State law cannot change this requirement.

NHTSA's longstanding position is that Head Start programs are primarily educational in focus rather than custodial, and are therefore "schools" under NHTSA's statute. Accordingly, buses transporting students to and from Head Start facilities are defined as school buses under Federal law and are therefore subject to the Federal school bus safety standards. Any manufacturer that omits the warning lamp system required by paragraph S5.1.4 of Standard No. 108 or the stop signal arm required by paragraph S5 of Standard No. 131 (or that delivers a bus with these devices inoperative), is in violation of Federal law, and subject to recall provisions and civil penalties.

The effect of the statute's preemption provision is that a State may not adopt or enforce a standard or requirement that regulates the same aspect of safety performance as one of the Federal standards unless that State standard or requirement is identica l to the Federal one. While the statute also permits a State to establish a higher standard of performance for vehicles procured for its own use, we would not view an exemption from the warning light or stop arm requirements as a higher standard of perf ormance. Thus, regardless of how a State defines "School bus," a State cannot prohibit a van, with seating capacity large enough to be defined as a school bus under Federal law, from being equipped with warning lights or stop arms. Although each State has the authority to establish laws for the use of vehicles on its roads (including the equipment on the vehicles), those State laws may not override Federal laws for what type of safety equipment must be installed on new vehicles.

I hope this information will be useful. If you have any further questions or desire any further information, please feel free to contact Mr. Walt Myers of my staff at this address or at (202) 366-2992.

ID: nht95-3.83

TYPE: INTERPRETATION-NHTSA

DATE: August 9, 1995

FROM: John Womack -- Acting Chief Counsel, NHTSA; Signature by Stephen P. Wood

TO: D. L. O'Connor -- Manager, Government & Customer Compliance, The Goodyear Tire & Rubber Company

TITLE: NONE

ATTACHMT: ATTACHED TO 7/13/95 LETTER FROM D. L. O'CONNOR TO WALTER K. MYERS (OCC 11043)

TEXT: Dear Mr. O'Connor:

This responds to your telephone conversation with Walter Myers of my staff on July 12, 1995, followed up by your letter of July 13, 1995.

You stated that Goodyear is encountering difficulties in exporting tires to Colombia, South America, in that Colombia wants verification that Goodyear complies with all Federal motor vehicle safety standards (FMVSS) when placing the DOT symbol on tires. You believe that Colombia will permit importation of Goodyear tires if NHTSA recognizes that Goodyear is a U.S. tire manufacturer in good standing and that Goodyear's placing the DOT symbol on its tires is accepted as valid certification of compliance b y the U.S. government.

As Mr. Myers stated in your telephone conversation, other U.S. tire manufacturers and exporters have had similar difficulties with Central and South American countries. All those countries regard the FMVSSs as acceptable assurances of tire safety, but t hey do not seem to understand or are skeptical of our system of manufacturer self-certification. They want assurances from a responsible U.S. government agency that manufacturer self-certifications are accepted as valid by the U.S. government.

Enclosed is a statement similar to those that we have provided other manufacturers and exporters. Since the Federal government cannot and does not approve, certify or endorse vehicles and equipment, this statement is as far as we can go in getting the F ederal government involved in what by law is essentially a manufacturer responsibility.

I hope the enclosed statement will be helpful to you. Should you have further questions or need additional information, please feel free to contact Mr. Myers at this address or at (202) 366-2992.

Enclosure

8/9/95

To Whom It May Concern:

Subject: Tires Manufactured by Goodyear Tire & Rubber Company

United States law requires tire manufacturers themselves to certify that the tires they manufacture for sale in the United States comply with all applicable Federal motor vehicle safety standards. There is no provision in U.S. law for approval or certif ication by this agency, the National Highway Traffic Safety Administration (NHTSA), the agency responsible for implementing the Federal law. NHTSA enforces the standards by randomly selecting and testing approximately 100 passenger car tires and 70 other than passenger car tires per year to ensure the validity of the tire companies' self-certification programs.

NHTSA states that all motor vehicle tires of any type or size manufactured by Goodyear Tire and Rubber Company and bearing the symbol "DOT" are recognized by the United States as having been produced and certified in conformity with all applicable Federa l motor vehicle safety standards of the United States.

Any questions or requests for additional information regarding this matter may be directed to Walter Myers at this address or at (202) 366-2992.

Sincerely,

John Womack Acting Chief Counsel, NHTSA (Signed by S. Wood)

ID: nht91-4.27

DATE: June 24, 1991

FROM: Paul Jackson Rice -- Chief Counsel, NHTSA

TO: Elizabeth Anania

TITLE: None

ATTACHMT: Attached to letter dated 5-31-91 from Elizabeth Anania to Steve Kratzke; (OCC 6100)

TEXT:

This responds to your letter to Mr. Steve Kratzke of my staff, requesting that the National Highway Traffic Safety Administration (NHTSA) grant permission to a repair business to modify your motor vehicle.

You explained that your husband, Vincent Anania, has some paralysis of his right arm and hand as a result of a stroke a year ago. You explained that your husband wishes to begin driving again and was recently evaluated by Bryant Driving School in Raleigh who determined that he was qualified to drive. However, the seat in your automobile does not move far enough back to allow your husband to enter the vehicle. You asked for permission to have your vehicle modified so that the seat can move further back. I hope the following discussion explaining our regulations will be of assistance to you.

I would like to begin by clarifying that there is no procedure by which persons petition for and are granted permission from NHTSA to arrange to have a motor vehicle repair business modify their motor vehicle. Repair businesses are permitted to modify vehicles without obtaining permission from NHTSA to do so, but are subject to certain regulatory limits on the type of modifications they may make. In certain limited situations, we have exercised our discretion in enforcing our regulations to provide some allowances to a repair business which cannot conform to our regulations when making modifications to accommodate the special needs of persons with disabilities. Since your situation is among those given special consideration by NHTSA, this letter should provide you with the relief you seek.

Our agency is authorized to issue Federal Motor Vehicle Safety Standards (FMVSS) that set performance requirements for new motor vehicles and items of motor vehicle equipment. Manufacturers are required by the National Traffic and Motor Vehicle Safety Act (Safety Act) to certify that their products conform to our safety standards before they can be offered for sale. Manufacturers, distributors, dealers and repair businesses modifying certified vehicles are affected by S108(a)(2)(A) of the Safety Act. It prohibits those businesses from knowingly rendering inoperative any elements of design installed on a vehicle in compliance with a FMVSS. In general, S108(a)(2)(A) would require repair businesses which modify motor vehicles to ensure that they do not remove, disconnect or degrade the performance of safety equipment installed in compliance with an applicable safety standard. Violations of S108(a)(2)(A) are punishable by civil fines up to $1,000 per violation.

In situations such as yours where a vehicle must be modified to accommodate the needs of a particular disability, we have been willing to consider any

violation of S108(a)(2)(A) a purely technical one justified by public need. I can assure you that NHTSA would not institute enforcement proceedings against a repair business that modifies the seat on your vehicle to accommodate your husband's condition. We caution, however, that only modifications necessary to accommodate your husband's condition should be made to the seat.

If you have further questions or need some additional information in this area, please contact Mary Versailles of my staff at this address or by telephone at (202) 366-2992.

ID: nht95-6.6

TYPE: INTERPRETATION-NHTSA

DATE: August 9, 1995

FROM: John Womack -- Acting Chief Counsel, NHTSA; Signature by Stephen P. Wood

TO: D. L. O'Connor -- Manager, Government & Customer Compliance, The Goodyear Tire & Rubber Company

TITLE: NONE

ATTACHMT: ATTACHED TO 7/13/95 LETTER FROM D. L. O'CONNOR TO WALTER K. MYERS (OCC 11043)

TEXT: Dear Mr. O'Connor:

This responds to your telephone conversation with Walter Myers of my staff on July 12, 1995, followed up by your letter of July 13, 1995.

You stated that Goodyear is encountering difficulties in exporting tires to Colombia, South America, in that Colombia wants verification that Goodyear complies with all Federal motor vehicle safety standards (FMVSS) when placing the DOT symbol on tires. You believe that Colombia will permit importation of Goodyear tires if NHTSA recognizes that Goodyear is a U.S. tire manufacturer in good standing and that Goodyear's placing the DOT symbol on its tires is accepted as valid certification of compliance by the U.S. government.

As Mr. Myers stated in your telephone conversation, other U.S. tire manufacturers and exporters have had similar difficulties with Central and South American countries. All those countries regard the FMVSSs as acceptable assurances of tire safety, but they do not seem to understand or are skeptical of our system of manufacturer self-certification. They want assurances from a responsible U.S. government agency that manufacturer self-certifications are accepted as valid by the U.S. government.

Enclosed is a statement similar to those that we have provided other manufacturers and exporters. Since the Federal government cannot and does not approve, certify or endorse vehicles and equipment, this statement is as far as we can go in getting the Federal government involved in what by law is essentially a manufacturer responsibility.

I hope the enclosed statement will be helpful to you. Should you have further questions or need additional information, please feel free to contact Mr. Myers at this address or at (202) 366-2992.

Enclosure

8/9/95

To Whom It May Concern:

Subject: Tires Manufactured by Goodyear Tire & Rubber Company

United States law requires tire manufacturers themselves to certify that the tires they manufacture for sale in the United States comply with all applicable Federal motor vehicle safety standards. There is no provision in U.S. law for approval or certification by this agency, the National Highway Traffic Safety Administration (NHTSA), the agency responsible for implementing the Federal law. NHTSA enforces the standards by randomly selecting and testing approximately 100 passenger car tires and 70 other than passenger car tires per year to ensure the validity of the tire companies' self-certification programs.

NHTSA states that all motor vehicle tires of any type or size manufactured by Goodyear Tire and Rubber Company and bearing the symbol "DOT" are recognized by the United States as having been produced and certified in conformity with all applicable Federal motor vehicle safety standards of the United States.

Any questions or requests for additional information regarding this matter may be directed to Walter Myers at this address or at (202) 366-2992.

Sincerely,

John Womack Acting Chief Counsel, NHTSA (Signed by S. Wood)

ID: NY_ bus_preemption

Robert A. Rybak, Associate Attorney
Office of Legal Affairs
State of New York
Department of Transportation
50 Wolf Road
Albany, NY12232




Dear Mr. Rybak:

This is in response to your letter and June13, 2005, facsimile asking whether the proposed changes to the New York State Department of Transportation (NYSDOT) bus inspection procedures are preempted by Federal regulations. We apologize for the delay in responding, as your original correspondence was lost. In short, we conclude that except for certain limited circumstances, the proposed procedures would not be preempted by Federal regulations.

In your letter, you explain that the new inspection procedures would require aftermarket bus modifiers to provide certain documentation and certification as to the scope of the changes made to a modified bus. Specifically, if the certification label required by 49 CFR Part 567 is missing, or contains information that no longer accurately reflects the vehicle because of the extent of modifications, the new procedures would require the modifiers to provide "Certification of the Present Status of Vehicles Altered, Modified, or Remanufactured After First Sale".

By way of background, the National Highway Traffic Safety Administration (NHTSA) issues Federal motor vehicle safety standards (FMVSSs) applicable to new motor vehicles and motor vehicle equipment. Chapter 301 of Title 49 of the United States Code, "Motor Vehicle Safety" (49 U.S.C. 30101 et seq.), establishes a "self-certification" process under which all motor vehicle manufacturers, including bus manufacturers, are responsible for certifying that their vehicles meet all applicable FMVSSs. The certification label requirements are listed in 49 CFR Part 567. 567.4(g)(7) specifies that the certification label must indicate the type of the vehicle being certified (e.g., truck, bus, trailer).

With respect to your question, we first note that NHTSA does not generally regulate rebuilding or re-manufacturing of used motor vehicles, and thus, the States are not preempted from regulating these activities. However, if the rebuilding or remanufacturing involves sufficient manufacturing operations and new parts, the vehicle may be considered newly manufactured. This means that it would be required to meet all applicable safety standards in effect at the time of rebuilding (re-manufacture), and to be certified as conforming to those standards. Because of the variety of fact situations involved, the agency has found it difficult to establish a general requirement, and it provides opinions on a case-by-case basis.

We note that the preemption issue arises only with respect to the proposed NYSDOT requirements of certification. The States are not, of course, preempted from conducting inspections of all vehicles in question. We further note that, if a modified vehicle does not fall into the category of being deemed newly manufactured, the only other Federal requirement that is imposed on commercial entities that make modifications to used vehicles is that they "not knowingly make inoperative any part of a device or element of design installed on or in [the] vehicle . . . in compliance with an applicable motor vehicle safety standard . . ." (49 U.S.C. 30122(b)).

Finally, please be advised that on June 22, 2005, we published a notice of proposed rulemaking proposing to amend the definition of "designated seating position" (70 FR 36094). If this proposal is adopted, it may affect your procedures with respect to determining seating capacity.

I hope you find this information helpful. If you have further questions, you may contact Mr. George Feygin of my staff at (202) 366-2992.

Sincerely,

Jacqueline Glassman
Chief Counsel

Enclosure
ref:567
d.7/27/05

ID: 22405.drn

William D. Cowan, CEO
Eflare Corporation
3731 West Warner Avenue
Santa Ana, CA 92704





Dear Mr. Cowan:

This responds to your request for an interpretation on whether your battery-operated LED-based warning device, the "Eflare 2000," must meet Standard No. 125, Warning devices, or any other National Highway Traffic Safety Administration (NHTSA) requirement. As explained below, because the Eflare 2000 has a self-contained energy source, Standard No. 125 does not apply to this product. However, since your product is "motor vehicle equipment," your company, Eflare Corporation, is subject to NHTSA's requirements as the manufacturer of the equipment.

You write that you expect the "Eflare 2000" to be carried in all types of vehicles, and that "[t]hey will be used to warn approaching traffic when vehicles are disabled and stopped in or by the side of the road." Your website at www.eflarecorp.com provides the following information. The "Eflare 2000" was designed to meet "professional" demands for a device to replace pyrotechnic road flares and supplement road safety reflective triangles. To deploy the device, one has to insert batteries, turn the device on, and set it on the side of the road. The website describes the "Eflare 2000" as a "highly visible flashing light," with the following features:

• visibility up to one mile (2 kilometers) in darkness, with 360 radial visibility
• effective in fog and smoke
• available in red, blue, amber and white
• fluoro-colored base is easy to see in daylight
• does not impair night vision

NHTSA is authorized to issue Federal motor vehicle safety standards (FMVSSs) for new motor vehicles and new items of motor vehicle equipment. Unlike the practice in many countries, NHTSA does not provide approvals of motor vehicles or motor vehicle equipment. Instead, manufacturers are required to certify that their vehicles and equipment meet applicable standards.

Effective October 31, 1994, NHTSA amended Standard No. l25 so that the standard applies only to warning devices that are designed to be carried in buses and trucks that have a gross vehicle weight rating (GVWR) greater than 10,000 pounds. (See 59 FR 49586; September 29, 1994, copy enclosed.) Moreover, Standard No. 125 specifically applies to "devices, without self- contained energy sources." (See S1. Scope.) Since the Eflare 2000 is battery-powered, it has a "self-contained energy source." Therefore, Standard No. 125 does not apply to the Eflare 2000.

Please note, however, that even if not covered by Standard No. 125, we have determined that the Eflare 2000 is "motor vehicle equipment," and is subject to various provisions of 49 U.S.C. Chapter 301, "Motor Vehicle Safety." "Motor vehicle equipment" is defined at 49 U.S.C. Section 30102(a)(7) as:

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

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

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

In determining whether an item of equipment is considered an "accessory ... to the motor vehicle," NHTSA analyzes two criteria. The first criterion is whether a substantial portion of the expected uses of a product are related to the operation or maintenance of motor vehicles. NHTSA determines expected uses 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 purchased or otherwise acquired, and principally used, by ordinary users of motor vehicles (e.g., items normally used by professional vehicle repair and maintenance personnel would not qualify).

Applying these two criteria to the Eflare 2000, NHTSA concludes that although the device may have non-motor vehicle-related applications, a substantial portion of the expected use of the Eflare 2000 is related to motor vehicles. Your website shows that the Eflare 2000 is marketed for use primarily in conjunction with motor vehicles, to be deployed on the side of the road in the event a vehicle is disabled. Further, you are marketing the product to ordinary motor vehicle owners and drivers for their purchase. For these reasons, we conclude that your product is an item of motor vehicle equipment.

Manufacturers of motor vehicles and motor vehicle equipment must ensure that their products are free of safety-related defects. If you or NHTSA should determine that your product contains a safety-related defect, you would be responsible for notifying purchasers of the defective equipment and remedying the problem free of charge. (This responsibility would be borne by the vehicle manufacturer in cases in which the Eflare 2000 devices are installed on a new vehicle by or with the express authorization of that vehicle manufacturer.)

You should also note that the Federal Motor Carrier Safety Administration (FMCSA), another agency of the U.S. Department of Transportation, has jurisdiction over interstate motor carriers operating in the United States. FMCSA was established on January 1, 2000, and was formerly a part of the Federal Highway Administration (FHWA). You should contact the FMCSA for an opinion as to whether that agency's requirements apply to your product. You may contact:

John McGowan, Director
Office of Bus and Truck Standards and Operations
Federal Motor Carrier Safety Administration
400 Seventh Street, SW, Room 3107
Washington, DC 20590
Telephone: (202) 366-4012

In addition, the states regulate the use of vehicles and items of motor vehicle equipment. Some states may regulate the warning devices that operators of vehicles may or must use when a vehicle is stopped. Each state in which you sell your product can provide information on whether there are any requirements in that state for warning devices to be used with motor vehicles.

Lastly, we have the following comments clarifying several of your statements. You write that "in explaining the regulatory situation to our U.S. customers," you wish to state the following about the Eflare 2000:

1. Have been designed to ensure that they do not conflict with the standards and regulations of the U.S. Department of Transportation.

2. May be used in the U.S. as warning devices for vehicles with gross vehicle weight ratings under 10,000 pounds, when the vehicle is disabled or stopped.

3. May be used in the U.S. as supplementary warning devices for trucks and buses over gross vehicle weight ratings of 10,000 pounds, provided they are used with triangles, fusees, or liquid-burning flares as required in DOT Safety Standard No. 125.

We are concerned that these statements and others in your literature give the impression that the product meets NHTSA standards. As previously explained, even though the Eflare 2000 falls within our statutory definition of "motor vehicle equipment," none of the FMVSSs apply to it. In your marketing efforts, you must avoid implying that your product is subject to or meets Standard No. 125 or any other Federal motor vehicle safety standard (FMVSS) or NHTSA regulation. Further, you must avoid any impression that NHTSA has approved your product.

Regarding the second and third statements, as noted above, simply because Standard No. 125 does not apply to your product does not mean that the product "[m]ay be used in the U.S. as a warning device." We urge you to check with the FMCSA and review the laws of the various states to determine whether use of your product would be permitted.

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

Sincerely,

Frank Seales, Jr.
Chief Counsel

Enclosure
ref:125#VSA102(4)
d.1/12/01

ID: 05-001084drn

Mr. Jim Kaplan
Cornell Dubilier
140 Technology Place
Liberty, SC 29657




Dear Mr. Kaplan:

This responds to your letter asking a number of questions about the regulations of the National Highway Traffic Safety Administration (NHTSA) as applied to your manufacture of pickup truck assemblies. You explain that you want to provide purchasers "all steel cars, with steel panels and steel frames including all the wiring and subassemblies needed for driving with the exception of the drive train". You also explain that you "would like to be able to provide the drive train processing service to the purchaser saving them the trouble of going to two different companies for their finished vehicle".

By way of background, NHTSA has the authority to establish regulations for motor vehicles and motor vehicle equipment (49 U.S.C. Chapter 301, "the Safety Act". ) The Safety Act defines "motor vehicle" in part as a vehicle that is "driven by mechanical power" (49 U.S.C. 30102(a)(6)). The Safety Act defines "manufacturer" as a person "manufacturing or assembling motor vehicles or motor vehicle equipment; or.importing motor vehicles or motor vehicle equipment for resale". 49 U.S.C. 30102(a)(5).

We have stated in past interpretation letters that a unit would be considered only an assemblage of motor vehicle equipment, and not a motor vehicle, until such time as a power source is added. (July 9, 1993, letter to Christopher Banner, copy enclosed. ) We have also stated in past interpretation letters that, if an unassembled vehicle were sold with all of the parts needed to produce a completed vehicle, we would treat the unassembled vehicle as a motor vehicle for purposes of our regulations. (See February 16, 2005, letter to Kevin Alsop, copy enclosed. )

If you did not provide the drive train, you would not be considered as selling a motor vehicle. However, you describe an arrangement in which you would charge the purchaser the total price of the vehicle with a processing fee and engine installation fee. You would have the vehicle sent to the engine installer, and would pay the engine installer its fee for installing the engine. The engine installer would then send the vehicle back to you so the purchaser could pick it up from you. We believe that in this situation, you are providing the power source with the assemblage. You are charging the customer for the complete truck, and the engine installer appears to be akin to just a subcontractor to your company. Accordingly, in this situation, we would consider the unassembled vehicle to be a "motor vehicle" and you to be a motor vehicle manufacturer.

Your first several questions ask about parties responsibilities for complying with the Federal motor vehicle safety standards (FMVSSs). Under the Safety Act, manufacturers of motor vehicles have the responsibility to certify that their vehicles comply with all applicable FMVSSs. Note that under 49 CFR 567.4(g)(1)(ii):

If a vehicle is fabricated and delivered in complete but unassembled form, such that it is designed to be assembled without special machinery or tools, the fabricator of the vehicle may affix the [certification] label and name itself as the manufacturer[. ](Emphasis added.)

Your fourth question asked, "Can I provide a vehicle identification number (VIN) for registration purposes?If so, who would provide that, us or the installer?"As the vehicle manufacturer, your company is responsible for assigning VINs to the trucks, and must ensure that the trucks meet all VIN requirements specified in 49 CFR Part 565, Vehicle Identification Number Requirements.

Your last question asked about supplying a warranty for the vehicle. Our regulations do not govern this issue.

I hope this information is helpful. If you have any further questions, please contact Dorothy Nakama of my staff at 202-366-2992.

Sincerely,

Jacqueline Glassman
Chief Counsel

Enclosures
ref:567
d.3/17/05