ID: 23257.ztv

Mr. Larry Hughson
Vehicle Services Division
2835 N. Kerby Avenue
Portland, OR 97227





Dear Mr. Hughson:

This is in reply to your e-mail of June 18, 2001, to the National Highway Traffic Safety Administration's Region 10 asking for an interpretation of Federal Motor Vehicle Safety Standard No. 108.

You have been informed by a member of the public that Portland's police cars do not comply with Standard No. 108. You cite that portion of S5.5.4 of Standard No. 108 which states that "the high-mounted stop lamp on each vehicle shall be activated only upon application of the service brakes." You state that S5.5.10 does not list the center high-mounted stop lamp, backup lamps, stop lamps, and headlamps (for purposes other than signaling) as lamps that are allowed to flash. You also cite S5.5.10(d) which, in effect, requires these lamps to be steady burning when in use. You ask if there is an alternate standard that applies to police vehicles, or whether police cars are exempt from this requirement.

We surmise from your letter that the police vehicles are equipped with a system that flashes headlamps, stop lamps, the center high-mounted stop lamp, and backup lamps for emergency purposes.

You did not relate whether this lighting system is installed as original equipment or after the vehicles are delivered to the police. I will first address its installation as original equipment. I enclose a copy of a letter that we sent Col. W. Gerald Massengill of the Virginia State Patrol on July 3, 2001, which we believe is applicable to the questions you raise. In brief, the system you describe on Portland's vehicles does not comply with Standard No. 108. However, we traditionally defer to the judgment of a State as to the installation and use of emergency lighting devices on its vehicles. The drivers that operate police vehicles will be instructed to use the warning system only under certain circumstances, such as to alert motorists of the presence of stopped vehicles in the roadway ahead. In all other circumstances, the headlamps, stop lamps

and backup lamps will operate consistent with the requirements of Standard No. 108. The noncompliances are temporary in nature and are necessary for the mission of the police. We believe, then, that the emergency system you describe is permissible as original equipment because of the circumstances which are unique to law enforcement.

If the system is added after the vehicles are delivered to the police department, please note that Federal law (49 U.S.C. 30122), does not prohibit a vehicle owner from adding equipment that may create a noncompliance with a Federal motor vehicle safety standard. Thus, installation of the warning system by a city-owned and operated garage is not prohibited under Federal law if installed only on city-owned vehicles. If the installation of the warning system is by a motor vehicle repair business, other than one that is city-owned, we would also consider that permissible for the same reasons as we would allow the system as original equipment.

If you have any questions, you may phone Taylor Vinson of this Office (202-366-5263)..

Sincerely,

John Womack
Acting Chief Counsel

Enclosure
Ref:108
d.7/30/01

ID: 8404r

Mr. Steve Thomas
General Manager
Texas Bragg Enterprises
Route 6, Box 875
Mt. Pleasant, TX 75455

Dear Mr. Thomas:

This responds to your letter of March 16, 1993, addressed to Walter Myers of this office. You stated in your letter that several of your dealers want to buy trailers from you without tires and wheels. You expressed doubt that those dealers have that many customers desiring to mount their own tires and wheels, and asked whether you can legally sell trailers to your dealers without tires and wheels and if so, whether you need them to sign a waiver or form to that effect.

Federal Motor Vehicle Safety Standard No. 120. Tire selection and rims for motor vehicles other than passenger cars (copy enclosed), provides that each vehicle equipped with pneumatic tires for highway use must be equipped with tires that, in the case of trailers, meet the requirements of Standard No. 119, New pneumatic tires for vehicles other than passenger cars (copy enclosed). Rims mounted on new trailers must meet the requirements of S5.2 of Standard 120.

There is, however, no specific requirement in Standard 120 that vehicles be equipped with tires and wheels. In fact, this agency's definition of a "completed vehicle" envisions the situation where a vehicle is sold without tires and wheels. That definition is set forth at 49 CFR Part 568.3, which defines a "completed vehicle" as "a vehicle that requires no further manufacturing operations to perform its intended function, other than the addition of readily attachable components, such as mirrors or tire and rim assemblies, or minor finishing operations such as painting" (emphasis added).

The trailer dealers to whom you ship your trailers are required by the National Traffic and Motor Vehicle Safety Act, 15 U.S. Code 1381 - 1431 (Safety Act) to sell vehicles that comply with all applicable Federal motor vehicle safety standards, including Standard 120. Therefore, if they sell the trailers with tires and wheels installed, those tires and wheels must meet the requirements for tires and wheels set forth in Standard 120.

In the event a new trailer sold by one of your dealers has tires and wheels that do not meet the applicable requirements of Standard 120, from a compliance standpoint it would be important to determine who equipped that vehicle with the noncomplying tires and wheels. Therefore, although not required by this agency, you might consider obtaining written statements or acknowledgements from the dealers concerned that you provided the trailers without tires and wheels, and retain those documents for your records. You might also consider consulting your attorney regarding any potential liability on your part for the actions of your dealers. Finally, we recommend that you inform any dealer whom you know to be considering installing noncomplying tires and wheels on your trailers to contact this agency for information about their responsibility under the Safety Act to sell trailers that meet the requirements of Standard 120.

I hope this information will clarify this matter for you. If you have any further questions or need further clarification, please feel free to contact Mr. Myers at this address or at (202) 366-2992.

Sincerely,

John Womack Acting Chief Counsel

Enclosures ref:120#119 d:4/14/93

ID: 1984-1.26

TYPE: INTERPRETATION-NHTSA

DATE: 03/21/84

FROM: AUTHOR UNAVAILABLE; Frank Berndt; NHTSA

TO: Mazda (North America) Inc.

TITLE: FMVSS INTERPRETATION

TEXT:

Mr. H. Nakaya Office Manager Mazda (North America), Inc. Detroit Office 23777 Greenfield Road Suite 462 Southfie1d, MI 48075

Dear Mr. Nakaya:

This responds to your letter requesting an interpretation of Standard No. 120, Tire selection and rims for motor vehicles other than passenger cars (49 CFRS571.120). Specifically, you noted that section S5.2 of that standard required that certain information be labeled on the "weather side" of each rim or wheel disc. You then offered your interpretation of the term "weather side", and asked for my comments on that interpretation. My comment is that Standard No. 120 explicitly defines "weather side", and that the definition of the term in Standard No. 120 is somewhat broader than your interpretation of the term.

Section S4 of Standard No. 120 contains the following definition: "Weather side" means the surface area of the rim not covered by the inflated tire. The interpretation you offered in your letter was consistent with this definition, because it would require that the information not be labeled in an area where it would be obscured by the inflated tire. However, your interpretation would also require that the information not be labeled in an area where it would be obscured by any axle mounting components, and this requirement is not contained in the definition set forth in Standard No. 120. You are free to use your narrower interpretation for your own purposes since it is consistent with the definition in the Standard, but the definition set forth in the Standard would be used to determine whether a rim complies with the requirements of the Standard.

Please feel free to contact me should you have any further questions or need more information on the requirements of Standard No. 120.

Sincerely,

Frank Berndt Chief Counsel

January 13, 1984

Mr. Frank Berndt Chief Counsel National Highway Traffic Safety Administration 400 7th Street, S.W. Washington, D.C. 20590

RE: Interpretation of FMVSS 120; Tire Selection and Rims for Motor Vehicles Other Than Passenger Cars

Dear Mr. Berndt:

The above Standard provides guidelines regarding the nature and display of tire and rim specifications. Within these guidelines, reference is made in Section 5.2 that the specifications, placed on the rim or wheel disc, " . . . shall appear on the weather side".

Mazda believes that this terminology refers to the surface of the rim or wheel disc that is not obscured by the mounted tire or any axle mounting components. This would result in ready accessibility of all specifications to personnel as the tire is mounted to the rim and avoid the obliterating effects that often occur between mating surfaces.

Please clarify the above terminology and comment on Mazda's interpretation of this requirement.

Thank you.

Sincerely,

H. Nakaya Office Manager

HN/ab

ID: nht93-3.1

DATE: April 14, 1993

FROM: John Womack -- Acting Chief Counsel, U.S. Department of Transportation, NHTSA

TO: Steve Thomas -- General Manager, Texas Bragg Enterprises

TITLE: None

ATTACHMT: Attached to letter dated 3-16-93 from Steve Thomas to Walter Meyers (OCC 8404)

TEXT: This responds to your letter of March 16, 1993, addressed to Walter Myers of this office. You stated in your letter that several of your dealers want to buy trailers from you without tires and wheels. You expressed doubt that those dealers have that many customers desiring to mount their own tires and wheels, and asked whether you can legally sell trailers to your dealers without tires and wheels and if so, whether you need them to sign a waiver or form to that effect.

Federal Motor Vehicle Safety Standard No. 120. TIRE SELECTION AND RUINS FOR MOTOR VEHICLES OTBOR THAN PASSENGER CARS (copy enclosed), provides that each vehicle equipped with pneumatic tires for highway use must be equipped with tires that, in the case of trailers, meet the requirements of Standard No. 119, NEW PNEUMATIC TIRES FOR VEHICLES OTHER THAN PASSENGER CARS (copy enclosed). Rims mounted on new trailers must meet the requirements of S5.2 of Standard 120.

There is, however, no specific requirement in Standard 120 that vehicles be equipped with tires and wheels. In fact, this agency's definition of a "completed vehicle" envisions the situation where a vehicle is sold without tires and wheels. That definition is set forth at 49 CFR Part 568.3, which defines a "completed vehicle" as "a vehicle that requires no further manufacturing operations to perform its intended function, other than the addition of readily attachable components, such as mirrors OR TIRE AND RIM ASSEMBLIES, or minor finishing operations such as painting" (emphasis added).

The trailer dealers to whom you ship your trailers are required by the National Traffic and Motor Vehicle Safety Act, 15 U.S. Code SS 1381 - 1431 (Safety Act) to sell vehicles that comply with all applicable Federal motor vehicle safety standards, including Standard 120. Therefore, if they sell the trailers with tires and wheels installed, those tires and wheels must meet the requirements for tires and wheels set forth in Standard 120.

In the event a new trailer sold by one of your dealers has tires and wheels that do not meet the applicable requirements of Standard 120, from a compliance standpoint it would be important to determine who equipped that vehicle with the noncomplying tires and wheels. Therefore, although not required by this agency, you might consider obtaining written statements or acknowledgements from the dealers concerned that you provided the trailers without tires and wheels, and retain those documents for your records. You might also consider consulting your attorney regarding any potential liability on your part for the actions of your dealers. Finally, we recommend that you inform any dealer whom you know to be considering installing noncomplying tires and wheels on your trailers to contact this agency for information about their responsibility under the Safety Act to sell trailers that meet the requirements of Standard

120.

I hope this information will clarify this matter for you. If you have any further questions or need further clarification, please feel free to contact Mr. Myers at this address or at (202) 366-2992.

Attachments: Federal Motor Vehicle Safety Standard Nos. 119 and 120 (Text omitted.)

ID: 77-4.49

TYPE: INTERPRETATION-NHTSA

DATE: 12/12/77

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

TO: Robert D. Scifres

TITLE: FMVSS INTERPRETATION

TEXT: This responds to your letter of October 27, 1977, asking whether the use of two rearview mirrors in one mounting is permitted if one of the mirrors fails to meet Federal requirements.

Safety Standard No. 111, Rearview Mirrors (49 CFR 571.111), requires each passenger car to have an outside rearview mirror of unit magnification (plane mirror) on the driver's side of the vehicle. Paragraph S4.2.1 of the standard specifies the field of view that must be provided by this outside mirror. Provided the vehicle is equipped with one mirror that meets the requirements of paragraph S4.2.1, the use of additional, non-complying, mirrors is not precluded by the standard, even if the mirrors are in the same mounting with the complying mirror.

Please contact us if you have any further questions.

Sincerely,

ATTACH.

October 27, 1977

TO: U.S. Department of Transportation -- National Highway Traffic Safety Administration

FROM: Robert D. Scifres

SUBJECT: Request for interpretation - Motor Vehicle Safety Standard No. 111, S3.2.1.1

As can be seen in the attached drawing(Exhibit I), this outside rearview mirror for passenger cars incorporates the use of two mirrors located in one assembly. One mirror(A) would conform in all respects to the current standards. The second mirror(B) would conform to all standards except as it relates to the field of vision. In itself the height would not provide the required reflected field of vision, but in conjunction with mirror (A) would provide an expanded field of vision to the extent the "blind spot" would be eliminated. Each mirror is adjustable both horizontally and vertically, allowing the driver to adjust each to give him the maximum reflection.

While the standards do not specifically nor indirectly state a single faced mirror only will be allowed; and although paragraph (1) of 32 F.R. 2413, dated February 3, 1967 relates to a "supplemental" mirror in addition to the inside and outside mirrors; and subsequent revisions do not change the above, I strongly feel an interpretation is in order.

My request comes about because of a very near accident involving me when I started to change lanes on a high speed highway. After checking both inside and outside rearview mirrors, I started to pull into the next lane to my left. Only because the driver of the vehicle behind me was alert prevented a serious accident. I have discussed this situation with about one hundred fifty of my acquaintences and almost all have experienced the same thing in one degree or another with several actually having an accident and three involved in rear end collisions because they had turned their head to make sure about the blind spot only to ram the rear of the cars in front of them.

In view of the standards as written, I feel an interpretation should be given and I shall appreciate an early response to this request

(Graphics omitted)

EXHIBIT I

Fig 1

ID: nht70-2.51

DATE: 01/02/70

FROM: AUTHOR UNAVAILABLE; C. A. Baker; NHTSA

TO: Volkswagen of America, Inc.

TITLE: FMVSS INTERPRETATION

TEXT: This will acknowledge your letter of November 25, 1969, to the National Highway Safety Bureau requesting the addition of the 4-J and 4 1/2-J rims for use with the 5.60x15 tire size designation and the 4 1/2-J rim for use with the 6.00x15L tire size designation to Table I, Appendix A of Federal Motor Vehicle Safety Standard No. 110.

The addition of these rims to Standard No. 110 is not necessary, as these combinations are listed within the references cited in S.J of Standard No. 109. The fact that you have changed the hump configuration on these rims requires no action on our part as we do not list variations from the basic Tire and Rim Association's contours. We consider only the rim width and flange coutour designation at this time when listing rims in the standard.

Manufacturers who modify rims are, of course, responsible to see that their product will perform satisfactorily to the requirements of Standard No. 109 and No. 110.

ALBA TIRE COMPANY

NOV. 24, 1969

NATIONAL HIGHWAY SAFETY BUREAU

We unfortunatley were unable to attend the Convention in Atlanta, and to hear your address, delivered to those interested, at the convention. However I have reviewed your address carefully, as reported in the November issue of Modern Tire Dealer, and have some questions.

Will Off the Read New Tires, and Retreads(say Racing Tires) come under the Regulations which are proposed for New Tires- and Retreads? If they are going to be included we wonder why-sincethis Deal is a different Ball game from the other phases of the Tire Business. The reason I say this is because of the difference in the original construction of the Tires (new at the factory). There is also a vast difference in the performance of the Tires-as regards heat buildup-and heat dissipation factors,. For ourselves we have been retreading Racing Tires for some 6 years now, and I have my First complaint-with one of my Retreads coming loose. My 45 years experience in Retreading may not make me an expert- but(Illegible Word) have learned a few things about the performance of Retreaded Tires on the Tracks-as opposed to New Tires. I cannot find any difference in the performance-or the satisfaction of the Users of a new Tire-as opposed to Retreads.

I ship my retreaded Race Tires all over Texas, Oklahoma, Kansas, and Nebrasks, as well as New Mexico. These Tires are run on both Paved, and Dirt Tracks, and by(Illegible Word) slow cars to sprint cars which turn up to 145 mph on the Straightway- NO PROBLEMS.

I buy my Retrenching Rubber Tax Free-since it is not going to be used on Hiway Type Tires- and of course should be Tax free.

I am 100% for a Fine quality Retread-and have for many years been critical of the Marginal Retreader-who had nothing but price- and POOR Quality to recommend his product-but as I say-I am wondering WHY The Race Tire deal should be included in any Guidelines that apply to Highway type Tires?

We will appreciate greatly your consideration of our concern-and thank you for an early response.

ID: aiam4207

Dear Mr. Bereuter: Thank you for your July 18, 1986, correspondence enclosing a lette from your constituent, Ms. Dianna L. Prosser of Beatrice, who asked about Federal regulations for safety belts on school buses. Your letter has been referred to my office for reply, since the National Highway Traffic Safety Administration (NHTSA) is responsible for administering Federal programs relating to school bus safety. I regret the delay in our response.; Ms. Prosser believes that the Federal government should encourag States to enact laws requiring passengers to use safety belts on school buses. She suggests that such a requirement would be consistent with State laws requiring the driver of a passenger car or school bus to use his or her safety belt. She asks also whether any states have enacted requirements for safety belt use in school buses.; I appreciate this opportunity to respond to your constituent' concerns. I would like to begin by clarifying that safety belts are not required by Federal law to be installed for passengers on large school buses. We have been carefully examining the issue of safety belts on large school buses. While NHTSA has often explained that States are free to order safety belts on their large school buses if they wish to do so, we believe that large school buses are very safe and that safety belts for passengers are not needed for safety.; Some background information on our school bus regulations might b helpful. NHTSA is responsible for developing safety standards applicable to all new motor vehicles, including school buses. In 1977, we issued a set of motor vehicle safety standards for various aspects of school bus safety. Included in that set is Federal Motor Vehicle Safety Standard No. 222, *School Bus Passenger Seating and Crash Protection*. Standard No. 222 requires large school buses--i.e., those with gross vehicle weight ratings over 10,000 pounds--to provide passenger crash protection through a concept called 'compartmentalization.' Compartmentalization requires that the interior of large buses be improved so that children are protected regardless of whether they have fastened a safety belt. The seating improvements include higher and stronger seat backs, additional seat padding, and better seat spacing and performance. Our safety standards require a safety belt for the school bus driver since the driver's position is not compartmentalized. We also require safety belts for passengers in smaller school buses because those buses experience greater crash forces than do larger buses and the additional restraint system is needed to provide adequate crash protection for passengers.; However, large school buses already offer substantial protection t passengers and a Federal endorsement for safety belts in those vehicles is unnecessary. In addition to meeting Federal school bus safety standards, large school buses are very safe vehicles because of their size and weight, the training and experience of their drivers and the extra care that other road users employ in the vicinity of school buses. As stated earlier, NHTSA does not prevent States and local jurisdictions that wish to order safety belts on their own large buses from doing so. Such a decision is a matter for the officials of the particular State or local jurisdiction, who are best able to assess their own pupil transportation needs.; Issues relating to safety belts in large school buses are discussed i a June 1985 NHTSA publication entitled 'Safety Belts in School Buses.' I have enclosed a copy of the report for Ms. Prosser's information.; Ms. Prosser also asked whether any State mandates the installation an use of safety belts in buses. New York has recently required installation of safety belts for passengers in large school buses. Requirements for the use of the belts would be set by the local board of education or board of trustees.; I would like to reiterate that the agency does not endorse installatio of safety belts for passengers on large school buses because we believe belts are not necessary to provide adequate crash protection. This contrasts with the data we have with regard to the use of safety belts by persons driving passenger cars. The Department's decision to promote effective State laws requiring the proper use of safety belts in passenger cars reflects our finding that safety belts substantially reduce deaths and serious injuries in a crash. If comparable data were available for school buses, our agency would not hesitate to take necessary and expeditious action.; I hope this information is helpful. Please contact my office if we ca be of further assistance.; Sincerely, Erika Z. Jones, Chief Counsel

ID: aiam5004

"Dear Mr. Randall: This responds to your letter of March 2, 1992 asking for confirmation that you will be a manufacturer of 'used' motor vehicles under the fact situation that you outlined and a previous interpretation of this agency. You intend to assemble replica vehicles which will incorporate new items of motor vehicle equipment except for 'previously used engine/transmission/drive axle/gearing combinations.' Because 'its running gear is not new', you believe that we would consider your vehicle 'as 'used' even thought its body and chassis are previously unused.' In support you cite a l980 interpretation of this Office under which the then Chief Counsel stated that 'the agency tends to view as 'used' a motor vehicle whose running gear is not new even though its body and chassis may be previously unused.' In that instance, the vehicle for which the interpretation was given was to be constructed from new parts except for the front suspension and axle, engine, and transmission. Your letter has provided an opportunity for the agency to review its position on motor vehicles constructed from a mixture of old and new parts. When the National Traffic and Motor Vehicle Safety Act was enacted in 1966, such motor vehicles were primarily 'kit cars.' A 'kit car' in those days consisted usually of a new body placed upon the chassis of an older Volkswagen from which the original body had been removed. The resulting assemblage generally retained the title of the original vehicle. The agency termed this type of vehicle a 'used' vehicle, and stated that the assemblage did not have to comply with the Federal motor vehicle safety standards that apply to vehicles at the time they are manufactured. The primary reason for this interpretation was the realization that it would be impracticable, if not impossible, for a motor vehicle to meet all contemporary Federal motor vehicle safety standards if that vehicle used a chassis that was manufactured before January 1, 1968, the date that the Federal standards began to apply to motor vehicles. Over the years, the body-on-chassis type of construction has grown less, and more complex fact situations have arisen with respect to motor vehicles constructed from old and new parts. Yet with the introduction of an increasing number of new parts, including the construction of a new chassis, the agency has applied the same rationale. With respect to the use of an older engine, NHTSA realized that compliance with two specific standards could be affected by the design of the engine and its components: Standard No. 124 Accelerator Control Systems, and Standard No. 301 Fuel System Integrity. Your letter affords the opportunity to review that rationale. Standard No. 124 has been in effect since September 1, 1973. Standard No. 301, initially effective January 1, 1968, contains upgraded performance requirements applicable to passenger cars as of September 1, 1977. Given the substantial number of motor vehicles that have been produced in accordance with these standards, and the probability that engines from these motor vehicles, though 'used', are likely to be incorporated into the manufacture of vehicles that are otherwise new, we have concluded that this rationale no longer supports an interpretation that relieves the manufacturer of a motor vehicle that uses all new components, except engine and drive train, from the responsibility of producing and certifying a motor vehicle that complies with all applicable Federal motor vehicle safety standards. Although you are correct that your situation appears analogous to the one in the 1980 letter, the passage of time has rendered that opinion untenable today. In a somewhat similar situation, on April 22, 1991, we informed Memory Motors, a replica manufacturer, that its product would be considered a 'new' vehicle for purpose of compliance with the Federal motor vehicle safety standards where the previously used chassis was retained in modified form, and the only used components retained included the rear axle assembly and front end components. As a small volume manufacturer of new motor vehicles, however, under 49 CFR Part 555 you become eligible to apply for a temporary exemption from one or more of the Federal motor vehicle safety standards for a period of up to three years if immediate compliance with the standard(s) would create substantial economic hardship. Although NHTSA does not grant blanket exemptions from the standards, it is sympathetic to small manufacturers who appear to have attempted in good faith to meet the standards but whose economic circumstances do not permit total compliance before manufacture of the vehicle is scheduled to commence. If you are interested in pursuing this possibility, we shall be pleased to advise you accordingly. Sincerely, Paul Jackson Rice Chief Counsel";

ID: 86-5.13

TYPE: INTERPRETATION-NHTSA

DATE: 09/05/86

FROM: AUTHOR UNAVAILABLE; S.P. Wood for Erika Z. Jones; NHTSA

TO: Mr. William Shapiro

TITLE: FMVSS INTERPRETATION

TEXT:

Sep 5 1986

Mr. William Shapiro Manager, Regulatory Affairs Volvo Cars of North America Rockleigh, New Jersey 07647

Dear Mr. Shapiro:

This responds to your letter concerning a newly designed Volvo child safety seat. You stated that this child safety seat can be certified as complying with Standard No. 213, Child Restraint Systems (49 CFR S571.213), when secured only by a vehicle lap belt, in the rearward-facing mode for infants and in the forward-facing mode for toddlers. In addition, you indicate that this child safety seat can be used in certain vehicle specific installations in Volvo vehicles, and that the vehicle specific installations "provide a higher level of protection." You asked this agency's opinion as to whether this new child safety seat is designed in due care to meet the minimum requirements of Standard No. 213 and whether it can be used in both the universal application (that is, secured by only a lap belt) and Volvo vehicle-specific modes.

With respect to your first question, the National Traffic and Motor Vehicle Safet Act (15 U.S.C. 1381 et seq.) provides no authority under which this agency can assure a manufacturer that its product has been designed in due care to comply with all applicable requirements or to otherwise "approve" it. The Act establishes a process of self-certification under which a manufacturer is not required to submit a product to the agency for approval before sale, but simply to provide a certification to dealers and distributors that it does meet all applicable Federal motor vehicle safety standards. If that product does not in fact comply, the manufacturer must notify and remedy the noncompliance according to the Act, and it is in presumptive violation of it (and therefore subject to civil penalties) unless it can establish that it did not have reason to know in the exercise of due care that the product was noncompliant. The statute thus provides an affirmative defense to the manufacturer, but it is a defense that does not arise until there is a violation of the Act, and the burden is upon the proponent to establish it.

Under the Act a product must comply at the time of sale to its first purchaser for purposes other than resale. This means that a manufacturer's responsibility to insure compliance does not end at the design stage, but extends through manufacture, distribution, and sale of the product. In this context whether a manufacturer has exercised due care in the design stage can be an irrelevant question if the noncompliance was caused by an error in the manufacturing process which should have been detected and corrected, for example. For these reasons we cannot provide the opinion that you seek.

With respect to your second question, Volvo can recommend its child seat for use with a lap belt in vehicles other than those manufactured by Volvo and for vehicle-specific uses in Volvo cars. The preamble to the 1979 final rule establishing Standard No. 213 included the following statement: "As long as child restraints can pass the performance requirements of the standard secured only by a lap belt, a manufacturer is free to specify other 'vehicle specific' installation conditions." 44 FR 72131, at 72136; December 13, 1979. Therefore, Volvo can provide the vehicle-specific installation conditions for its child safety seat in Volvo automobiles. Please note that section S5.6 of Standard No. 213 requires manufacturers recommending vehicle-specific installations to provide step-by-step instructions for securing the child restraint in those particular vehicles, as well as providing such instructions for securing the child restraint when it is used in vehicles for which no vehicle-specific installation is recommended.

Please feel free to contact me if you have any further questions or need more information on this subject.

Sincerely,

Erika Z. Jones Chief Counsel

April 9, 1986

Ms. Erika Jones Chief Counsel National Highway Traffic Safety Administration 400 Seventh St., S.W. Washington, D. C. 20590

Re: Request for Interpretation FMVSS #213 - Volvo Child Safety Seat

Dear Ms. Jones:

This will confirm the discussion of March 26, 1986 between Volvo ad NHTSA personnel regarding the Volvo child safety seat. Based on that meeting, we request the following be clarified. Volvo is deeply committed to the safety of all ages of the occupants of vehicles. For the past 10 years, we have marketed in Europe a vehicle-specific rearward facing Volvo child safety seat. We believe the rearward facing mode is a safer way to travel for children than forward facing. Its experience in Sweden has been excellent. However, due to the particular wording in FMVSS #213, we were unable to market it in the U.S.

During the past 1-2 years we have designed ad developed a new Volvo child seat. In the Thursday, December 13, 1979 F. R. V44N241, P. 72136 (Docket #74-9, Notice 6) NHTSA commented on vehicle-specific child seats.

"However, since vehicle specific child restraints can provide adequate levels of protection when installed correctly, NHTSA is not prohibiting the manufacture of such devices. The new standard requires them to meet the performance requirements of the standard when secured by a vehicle lap belt. As long as child restraints can pass the performance requirements of the standard secured only by a lap belt, a manufacturer is free to specify other 'vehicle specific' installation conditions."

Our development for the U. S. was based on this portion of the Federal Register. This seat is designed to be used by both infants (0-1 year) and toddlers (1-about 4 gears). The new Volvo child seat has universal application in automobiles. In addition, it has vehicle-specific modes for Volvo vehicles which provide yet a higher level of protection.

The Volvo child seat is desired to meet the performance requirements or FMVSS #213 when secured by a vehicle lap belt in the rearward racing mode for infants and the forward facing mode for toddlers. This is the universal installation. Because FMVSS #213 is a minimum performance standard, by fulfilling the requirements of FMVSS #213 in these modes we have fulfilled NHTSA intent as stated in the above mentioned Federal Register and believe this seat is designed in due care to meet the requirements of FMVSS #213.

The Volvo child seat in the vehicle-specific mode provides a higher level of protection than the universal application. This is accomplished by the use of an additional vehicle specific attachment strap and hardware. For both the infant and toddler Volvo vehicle-specific mode, the child rides rearward-facing in the vehicle.

We interpret that the new Volvo child seat, as described above, is designed in due care to meet the minimum requirements of FMVSS #213, and can be used in both the universal application and Volvo vehicle-specific modes. Your confirmation of that interpretation would be appreciated as soon as possible.

If there are further questions about the Volvo child safety seat, please contact me at your convenience.

Sincerely, VOLVO CARS OF NORTH AMERICA Product Planning and Development

William Shapiro, P.E. Manager, Regulatory Affairs WS:mc

ID: nht93-6.47

DATE: September 27, 1993

FROM: John Womack -- Acting Chief Counsel, NHTSA

TO: Scott R. Dennison -- Vice President - Production, Excalibur Automobile Corporation

TITLE: None

ATTACHMT: Attached to letter date 4/27/93 from Scott R. Dennison to John Womack (illegible OCC number)

TEXT:

Thank you for your letter of April 27, 1993, clarifying your FAX of March 12 to which I responded on April 19.

We appreciate your goal of helping people comply with the Federal Motor Vehicle Safety Standards (FMVSS) and those of EPA. We can well understand why, as you put it, "at times I do not feel I have the right answers for some of these manufacturers." The regulation of kit cars and vehicles combining old and new parts is a complicated subject, and our opinions usually depend upon the specific facts of individual cases with the result that one may differ in degree from another. Because these are legal opinions, the Office of Chief Counsel is the proper Office within NHTSA to address questions of this nature, rather than the agency's Enforcement office.

We are sorry that some of your inquirers "are afraid to call (NHTSA) for fear of reprisal." By this, I think you mean that a call from a small manufacturer might cause NHTSA to initiate enforcement action concerning nonconformance with the FMVSS or agency regulations. The potential of an enforcement action should be sufficient to encourage those engaged in the manufacturing or assembling of motor vehicles to discern their responsibilities under the National Traffic and Motor Vehicle Safety Act and to comply with them. We are willing to assist manufacturers in interpreting the Act and regulations. If they do not wish to write or call us, they can review our interpretation letters which are available to the public in NHTSA's Technical Reference Division. Also, they can consult a private attorney.

You enclosed a copy of the "EPA Kit Car Policy" which we have reviewed, comparing it with NHTSA policy. In most respects, the two policies are congruent. Paragraph 1 of the EPA document fairly expresses NHTSA policy; fully assembled kit cars, and complete kit car packages are "motor vehicles" under the Act, required to be certified by the manufacturer or kit supplier. If they are not certified, they must be imported by a NHTSA-registered importer (the counterpart to EPA's Independent Commercial Importer), or one who has a contract with a registered importer to certify the kit car (an allowance that we understand does not exist under EPA regulations). I shall return to Paragraph 2 later. Paragraph 3 differs from NHTSA policy; although automotive bodies are not "motor vehicles" under either EPA or NHTSA's definitions, they are "motor vehicle equipment" for purposes of NHTSA's jurisdiction. Paragraph 4 essentially states NHTSA policy; kit car body/chassis combinations may be imported as automotive equipment and are subject to NHTSA's regulations. Similarly, any attempt to circumvent the

Act or import regulations may be viewed as a violation subject to enforcement. However, NHTSA will also regard as a "manufacturer" any person importing kits or kit cars for resale, as well as the actual fabricator or assembler of a kit.

Paragraph 2 reflects the fact that EPA regulates only engines and emission- related components. A vehicle "will be considered to be a rebuilt vehicle of a previously certified configuration and will be considered to be covered by that configuration's original EPA certification of conformity" if the engine and all emission-related components and settings conform to those of the previously certified configuration, and if the weight of the completed kit vehicle is not more than 500 pounds greater than that of the originally certified configuration. Under EPA policy, a "rebuilt vehicle" could be a motor vehicle all of whose parts were new and unused except for its engine and engine-related components. NHTSA has no definition of "rebuilt vehicle" which would permit a similar interpretation, and while a vehicle as I have described could be covered by the previously existing EPA certification, NHTSA very likely would regard it as a newly manufactured motor vehicle which must be certified as meeting all contemporary FMVSS. It is here that the two agencies most diverge because of the breadth of NHTSA's regulatory authority which encompasses all motor vehicle equipment, and motor vehicles assembled from that equipment.

You cite as an example of difficulty "the treatment of FMVSS with regards to a '23 T-Bucket Hot Rod." The first question to answer is whether the car has been manufactured primarily for use on the public roads. Factors to consider in this determination are whether the Hot Rod is intended solely for use on closed race tracks, whether it must be trailered from race to race, and whether a State would license it for on road use. If the car has not been manufactured primarily for on road use, then it is not a "motor vehicle" as defined by the Vehicle Safety Act, and not subject to the FMVSS. If the car is a "motor vehicle" and entirely assembled from parts from a disassembled motor vehicle or vehicles previously in use, then it is considered a "used" vehicle, and also not subject to the FMVSS (but subject to state and local standards). On the other hand, if the kit car is entirely comprised of previously unused parts, then it is a new motor vehicle that is required to comply with, and be certified as complying with, the FMVSS (and its manufacturer may be eligible to apply for a temporary exemption from one or more of those standards under 49 CFR Part 555). If the kit car is comprised of parts both previously used and unused, NHTSA's examination of the list of components in each category will enable it to advise whether the kit car must comply with the FMVSS that apply to new vehicles.

In addition, we also receive inquiries from those who wish to construct vehicles which use a "host" chassis from a previously certified vehicle. The Act permits a manufacturer to modify a previously certified vehicle in any manner as long as it does not knowingly render inoperative in whole or in part any device or element of design installed by the original manufacturer in accordance with a Federal motor vehicle safety standard. We interpret this as meaning that, if the manufacturer removes the original body, at the end of the conversion process the resulting motor vehicle must continue to comply with the FMVSS that were in effect when it was originally manufactured. However, a certain divergence from original vehicle

compliance is permitted. For example, if a 1982 enclosed passenger car is modified to become a convertible, at the end of the conversion process it is no longer required to meet enclosed car FMVSS but must comply with those that applied to 1982 convertibles. The Act does not require that such vehicles be certified but the manufacturer should be prepared to substantiate that it has not rendered inoperative any of the vehicle's original safety equipment, either directly or indirectly (such as a substantial increase in the weight of the vehicle that might affect its crash protection characteristics) in the event NHTSA should so ask.

Finally, we note your remark that NHRA and SEMA are debating whether a policy can "be developed which will allow these builders to produce an authentic replica and stay within the standards." As I discussed above, the FMVSS would not appear to apply to a replica vehicle such as a Miller racing car from the 1920's that could not be licensed for on road use. However, the FMVSS do apply to vehicles composed of newly manufactured parts that replicate the look of older vehicles. For this reason, 100% authenticity cannot be achieved for a replica required to meet the current FMVSS because of equipment such as the center highmounted stop lamp, side marker lamps and reflectors, and head and other occupant restraints required for safety today. As a general rule, we would not provide temporary exemptions from these standards. In our view, the only viable candidate for an authentic replica is one that is constructed on a "host" chassis of a vehicle manufactured before January 1, 1968, the date that the first FMVSS became effective, or entirely from used parts. I would also note that much authenticity could result from use of a "host" chassis manufactured during calendar year 1968. Although the appearance of the interior would be affected by compliance with certain FMVSS, the FMVSS requiring side marker lamps and reflectors and head restraints did not become effective until January 1, 1969.