ID: 3275yy

Mr. Edward M. Klisz
Chief, Light Tactical Vehicle Branch
Department of the Army
United States Army Tank-Automotive Command
Warren, MI 48397-5000

Dear Mr. Klisz:

This responds to your letter regarding foreign-made tires that the Army procured in Southwest Asia. You indicated that your office is trying to ascertain the suitability of these tires, not all of which are marked with a "DOT" certification, for Army use. You enclosed a list of the tires and, for those marked with "DOT", requested this office to "determine if the DOT codes are accurate according to [our] records." You also requested that we verify your understanding of the general requirements applicable to foreign tire manufacturers, and the process by which such manufacturers certify their tires as complying with our standards. I am pleased to have this opportunity to answer your questions.

For your information, I have enclosed a copy of the National Traffic and Motor Vehicle Safety Act (the Safety Act). Section 103 of the Safety Act authorizes the National Highway Traffic Safety Administration (NHTSA) to issue Federal motor vehicle safety standards for new motor vehicles and new motor vehicle equipment. The Safety Act defines a motor vehicle safety standard as, "a minimum standard for motor vehicle performance, or motor vehicle equipment performance, which is practicable, which meets the need for motor vehicle safety and which provides objective criteria." [See 102(2)].

The Safety Act then requires that all motor vehicles and motor vehicle equipment sold or imported into the United States, regardless of whether the product is manufactured in the U.S. or abroad, must comply with the safety standards adopted by NHTSA. Specifically, 108(a)(1)(A) of the Safety Act provides:

no person shall manufacture for sale, sell, offer for sale, or introduce or deliver into introduction in interstate commerce, or import into the United States, any motor vehicle or item of motor vehicle equipment manufactured on or after the date any applicable Federal motor vehicle safety standard takes effect under this title unless it is in conformity with such standard and is covered by a certification issued under 114...

In the case of tires, this provision of the Safety Act means that a foreign tire manufacturer would be prohibited from exporting its new tires to the United States unless the manufacturer certified that the tire complies with the applicable U.S. safety standards. All new tires for use on passenger cars must be certified as complying with Federal Motor Vehicle Safety Standard No. 109 (49 CFR 571.109), and all new tires for use on other motor vehicles must be certified as complying with Federal Motor Vehicle Safety Standard No. 119 (49 CFR 571.119). These standards specify performance requirements (strength, endurance, high speed performance, and, for passenger car tires only, resistance to bead unseating), marking requirements (treadwear indicators and labeling information), and tire and rim matching information requirements that must be met by all tires to be sold in the United States.

The process of certifying compliance with the applicable safety standards under the Safety Act is substantially different than that used in many other countries. For instance, the European nations require manufacturers to deliver tires to a governmental entity for testing. After the governmental entity itself tests the tires, the government approves those tires for use and assigns an approval code to the tires. In place of this sort of process, the Safety Act establishes a "self-certification" process for tires sold in the United States. Under this self-certification process, the tire manufacturer, not any governmental entity, certifies that its tires comply with the applicable safety standards.

Further, the Safety Act does not require that a manufacturer base this certification on a specified number of tests or any tests at all; a manufacturer is only required to exercise due care in certifying its tires. It is up to the individual tire manufacturer to determine in the first instance what test results, computer simulations, engineering analyses, or other information it needs to enable it to certify that its tires comply with the applicable Federal motor vehicle safety standards. Once a manufacturer has determined that its tires meet the requirements of the applicable standard, it certifies that compliance by molding the letters "DOT" on one sidewall of each certified tire.

As stated above, NHTSA does not do any pre-sale approval or testing of tires. Instead, the agency routinely tests certified tires that have been sold to determine whether the tires do in fact comply with applicable standards. For these enforcement checks, the agency purchases new tires and tests them according to the procedures specified in the standard. If the tires pass the tests, no further steps are taken. If the tires fail the tests and are determined not to comply with the standard, the tire manufacturer is required to recall the tires and remedy the noncompliance. Turning now to your particular situation, it is not clear how helpful these requirements will be in assessing the current safety performance of the tires procured during Operation Desert Storm/Desert Shield. In the case of such tires that are marked with "DOT", that mark means the tire manufacturer certified that, when new, the tires complied with all applicable safety standards. However, the presence of a "DOT" symbol on a used tire does not mean that the tire in its current condition would still comply with the new tire standards. There are many instances in which used tires would be unlikely to comply with the new tire standards, simply because of normal environmental factors and without any fault in the construction of the tire. Such environmental factors include, but are not limited to, a hole larger than a nail suffered by the tire while in service, damage to the inner liner of the tire from being run flat, damage to the bead area of the tire during mounting, damage to the sidewall from running against rocks, curbs, and so forth. In each of these instances, the vehicles on which the tires have been used and the conditions in which those vehicles have been operated would be at least as important in determining the tire's current performance capabilities as would the tire's capabilities when it was new.

Further, the absence of a "DOT" symbol on a tire purchased outside of the United States does not necessarily mean that the tire, when new, would not have complied with the applicable tire safety standard. On the contrary, it is possible that the new tire would have, if tested, actually been found to comply with those safety standards. The only definitive conclusion you may draw about a tire without a "DOT" symbol that is purchased outside the United States is that the tire's manufacturer, for whatever reason, did not certify that tire's compliance. It could be that the tire did not comply when new, or it could be that the manufacturer did not produce the tire for importation and eventual sale in the U.S., and therfore felt no need to certify the tire.

You noted in your letter that this agency has established a requirement in 49 CFR Part 574 that all tire manufacturers, both foreign and domestic, must obtain an identification mark from NHTSA and label each of their tires with that mark. Before NHTSA will assign an identification mark to a tire manufacturer headquartered outside the United States, the manufacturer must designate a permanent resident of the United States as the manufacturer's agent for service of process in this country. However, the designated agent of the manufacturer only acts as the agent for service of process; the manufacturer's designated agent is not responsible for the certification of the tires. Only the manufacturer certifies that the tires comply with all applicable standards and, as explained above, that certification must be made (and indicated with a DOT symbol) before the tire would be allowed to enter the United States.

Finally, you requested in your letter that we review the list of tires you submitted and verify the accuracy of the "DOT" marks shown. I believe this request was based upon a misunderstanding of NHTSA's role in the certification process. Since manufacturers are not required to deliver their tires to NHTSA for testing, or register their products with the agency, the agency has no way to "verify the accuracy" of the DOT codes you submitted. To repeat, the DOT code molded into the sidewall of a tire represents the manufacturer's self-certification that the tire complies with applicable standards; the DOT code is not a statement or certification by NHTSA that the tire complies with our standards.

NHTSA would only have information about the "accuracy" of the DOT codes (i.e., whether the tires so marked actually meet the standards), in the event that the agency had conducted one of its random enforcement checks on a new tire like the one in question. Accordingly, we reviewed our enforcement records to determine whether NHTSA performed compliance tests on new versions of any of those tires. Having searched the agency's data base for the brands, types, and years of the listed tires, we found that the agency did not conduct compliance tests on any of these tires.

I hope this information is helpful. Please contact Stephen Kratzke of my staff at this address or by telephone at (202) 366-2992 if you have further questions.

Sincerely,

Paul Jackson Rice Chief Counsel

Enclosure

/ref: Std 119, Part 574 d:1/17/92

ID: 3276yy

Edward F. Conway, Jr., Esq.
Assistant General Counsel
Recreation Vehicle Industry Association
P.O. Box 2999
1896 Preston White Drive
Reston, VA 22090

Dear Mr. Conway:

I have been asked to respond to your letter to Administrator Curry, in which you asked about the application of Federal Motor Vehicle Safety Standard No. 216, Roof Crush Resistance, to van conversions and motor homes with raised roofs. In your letter, you suggested that the currently specified roof crush resistance test procedure is inappropriate for such vehicles because of their unique physical characteristics. Additionally, referring to the greater floor to roof height of a van conversion or motor home as compared to a typical passenger car, you questioned whether the five inch roof displacement pass/fail criteria are appropriate for these vehicles. I am pleased to have the opportunity to address these issues.

As you know, on April 17, 1991, NHTSA published a final rule extending the application of Standard No. 216 to multipurpose passenger vehicles (MPVs), trucks and buses with a GVWR of 6,000 pounds or less, manufactured on or after September 1, 1993 (56 FR 15510). That rule requires that the roof of any such vehicles be moved not more than five inches when a force of one and a half times the vehicle's unloaded weight is applied to either side of the forward edge of the vehicle's roof. This is the same test procedure specified for passenger cars, with one exception. For passenger cars, the standard specifies applying a force of one and a half times the vehicle's unloaded weight or 5,000 pounds, whichever is less. As indicated above, the alternative 5,000 pound crush force limit that applies for passenger cars was not adopted for light trucks, buses, and MPVs.

During the rulemaking process that led to this extension of Standard No. 216, NHTSA received comments requesting that the agency consider modifying the roof crush resistance test procedure to accommodate the particular physical characteristics of some motor homes, vans and van conversions, including those with raised roofs. More specifically, some commenters including RVIA suggested that the specified test procedures could not be used to position the test device on some vehicles with raised roofs. Other commenters, especially Ford, questioned the need for a five-inch roof crush limitation for vehicles with full standing headroom and suggested that NHTSA consider relating the maximum roof crush requirement to the available occupant headroom.

After carefully evaluating these comments, NHTSA concluded that, based upon the available information, the roof crush resistance test procedure was practicable, met the need for motor vehicle safety, and was appropriate for MPVs, trucks, and buses, if those vehicles had a GVWR of 6,000 pounds or less. The issues identified by the commenters were significant primarily for such vehicles with a GVWR of more than 6,000 pounds. NHTSA acknowledged that it was possible that there could be some light trucks with a GVWR of 6,000 pounds or less that would experience the same problems with the specified roof crush resistance test procedure as larger vehicles would. However, the agency had no information showing that those difficulties would actually be experienced by particular light trucks with a GVWR of 6,000 pounds or less. See 56 FR 15514; April 17, 1991.

In your letter, you raised the same issues that had previously been raised in these comments; that is, you suggested that the test device could not be positioned properly on vehicles with a raised roof and that the five inch crush displacement limit was inappropriate for vehicles with a raised roof. As was the case with those comments, your letter did not provide any specific information identifying particular vehicles with a GVWR of 6,000 pounds or less whose physical characteristics would cause it to experience some particular compliance difficulties or testing difficulties.

If you have some information showing compliance or testing difficulties for actual light truck models with a GVWR of 6,000 pounds or less, we would appreciate it if you would forward that information to the agency. At this time, NHTSA is not aware of any compliance or testing difficulties for light trucks subject to the extended requirements of Standard No. 216. Absent such information, NHTSA has no basis for changing its previous conclusion about the specified test procedures and requirements.

Sincerely,

Paul Jackson Rice Chief Counsel

/ref:216 d:1/17/92

ID: 3277yy

William E. Kenyon
Mr. K's Original Headsaver
Patented Restraint Systems
6560 North Scottsdale Road, Suite H103
Scottsdale, AZ 85253

Dear Mr Kenyon:

This responds to your letter regarding a head restraint system your company is producing for use in pickup trucks with bench seats. You indicated that your company's head restraints meet or exceed the performance requirements specified in Standard No. 202, Head Restraints. As support for this statement, you enclosed with your letter an affadavit, in which you stated that you had tested your company's head restraint in accordance with Standard No. 202 and that the results of the testing showed that your company's head restraint complied with the performance requirements of Standard No. 202. Accordingly, you stated that you would like your company's head restraint system to be "federally approved as an after-market safety product." As I will explain in more detail below, this agency has no authority to approve, endorse, or offer assurances of compliance for any motor vehicle or item of motor vehicle equipment.

By way of background information, Section 103 of the National Traffic and Motor Vehicle Safety Act (Safety Act; 15 U.S.C. 1392) authorizes the National Highway Traffic Safety Administration (NHTSA) to issue Federal motor vehicle safety standards for new motor vehicles and new items of motor vehicle equipment. We have exercised this authority to establish Standard No. 202, Head Restraints (49 CFR 571.213), which applies to all new passenger cars, and all new trucks, buses, and multipurpose passenger vehicles with a gross vehicle weight rating of 10,000 pounds or less. I have enclosed a copy of Standard No. 202 for your information.

The Safety Act requires that all motor vehicles and motor vehicle equipment sold or imported into the United States comply with the safety standards adopted by NHTSA. Specifically, 108(a)(1)(A) of the Safety Act [15 U.S.C. 1397(a)(1)(A)] provides:

no person shall manufacture for sale, sell, offer for sale, or introduce or deliver into introduction in interstate commerce, or import into the United States, any motor vehicle or item of motor vehicle equipment manufactured on or after the date any applicable Federal motor vehicle safety standard takes effect under this title unless it is in conformity with such standard and is covered by a certification issued under 114...

With respect to your company's product, please note that Standard No. 202 applies only to new motor vehicles and requires the motor vehicle manufacturer to certify that its vehicle complies with the standard. By its own terms, Standard No. 202 does not apply to head restraints as a separate item of motor vehicle equipment. Thus, the Safety Act does not require manufacturers of head restraints to certify that the head restraint complies with Standard No. 202 before selling the product.

Additionally, the Safety Act does not authorize NHTSA to certify or approve motor vehicles or items of motor vehicle equipment as complying with our standards. In this regard, the process for certifying compliance with applicable safety standards under the Safety Act is substantially different than that used in many other countries. For instance, the European nations require manufacturers to deliver their products to a governmental entity for testing. After the governmental entity itself tests the product, the government approves the product for use and assigns it an approval code.

In place of this sort of process, section 114 of the Safety Act (15 U.S.C. 1403) establishes a self-certification process under which every manufacturer is required to certify that each of its products meets all applicable Federal safety standards. The manufacturer's certification need not be based on actual tests in accordance with the standard. United States law only requires that the manufacturer's certification be made with the exercise of "due care" on the part of the manufacturer. It is up to the individual manufacturer in the first instance to determine what test results, engineering analyses, computer simulations, or other information it needs to certify compliance with the applicable safety standards. Once the manufacturer has made this determination and certified its product in accordance with the applicable standard, it is free to offer the product for sale in the United States. The agency periodically tests vehicles and items of equipment that have been certified by the manufacturer to ensure that they do, in fact, comply with the safety standards. NHTSA also investigates alleged defects related to motor vehicle safety.

Although we do not have any safety standards that directly apply to your product, there are several provisions of the Safety Act that apply to the sale of aftermarket items of motor vehicle equipment. Manufacturers of motor vehicle equipment such as your head restraints are subject to the requirements in sections 151-159 of the Safety Act (15 U.S.C. 1411-1419) concerning the recall and remedy of products with defects related to motor vehicle safety. In addition, the use of aftermarket items could be affected by section 108(a)(2)(A) of the Safety Act (15 U.S.C. 1397(a)(2)(A)). That section prohibits any manufacturer, distributor, dealer, or repair shop from knowingly "rendering inoperative" any device or element of design installed on or in a vehicle in compliance with an applicable safety standard. The effect of this provision is to make it unlawful for any of the named commercial establishments to replace an original equipment head restraint with an aftermarket head restraint if the commercial establishment knows or should know that the switch to the aftermarket head restraint results in the vehicle no longer complying with Standard No. 202.

Finally, I have enclosed an information sheet which identifies relevant Federal statutes and NHTSA regulations affecting motor vehicle and motor vehicle equipment manufacturers. This information sheet also explains how to obtain copies of those regulations.

Sincerely,

Paul Jackson Rice Chief Counsel

Enclosures

/ref:202 d:1/15/92

ID: 32901.doc

Mr. Timothy A. Green
Attorney
Ford Motor Company
Office of the General Counsel
Suite 728 - Parklane Towers East
One Parklane Boulevard
Dearborn, Michigan 48126-2493

Dear Mr. Green:

This responds to your letter of July 24, 1996, concerning whether particular vehicles can be included within a certain company's fleet for CAFE purposes. The factual situation, which includes car companies, A and B, and an importer, C, can be summarized as follows:

Car company A is the single largest shareholder of car company B, holding over one third of the outstanding shares of B. Agreements between car company A and car company B stipulate that company A will have substantial influence over the design and production of vehicles manufactured by company B. Vehicles produced by company B are imported into the United States by company C. Company B is the single largest shareholder of C, with fifty percent of the outstanding shares of C.

You have asked whether you, as company A in the factual situation described above, can include the vehicles imported by company C in its fleet for CAFE purposes. As discussed below, it is our opinion that the answer is yes.

The following sections of Chapter 329 of Title 49 of the United States Code, "Automobile Fuel Economy" are relevant to answering your question:

32902(a)(4) "automobile manufactured by a manufacturer" includes every automobile manufactured by a person that controls, is controlled by, or is under common control with the manufacturer, but does not include an automobile manufactured by the person that is exported not later than 30 days after the end of the model year in which the automobile is manufactured.

32901(a)(12) "manufacture" (except under section 32902(d) of this title) means to produce or assemble in the customs territory of the United States or to import.

Company C imports vehicles produced by company B into the United States. While company C neither designs or produces these vehicles, C is their manufacturer for CAFE purposes. Company B, given its 50 percent ownership of company C and its control over the design and production of the vehicles, controls company C. The principal question, therefore, is whether company A "controls" company B to the extent that the cars imported by company C may be included in company A's CAFE fleet.

The term "control" as used in 32902(a)(4) is not defined elsewhere in Chapter 329 or the legislative history of the Chapter and its predecessor, the Motor Vehicle Information and Cost Savings Act. In past interpretations the agency has indicated that the term as used in the CAFE context may have the same definition as it has when used in a corporate law context. In the corporate law context, the issue of control is important for determining whether the controlling persons have violated any fiduciary duties to the corporation and other shareholders. Control in that sense refers to ownership of a large enough bloc of a company's stock to constitute effective voting control of the firm.

For the purposes of Chapter 329, control is important for determining a company's corporate average fuel economy and total production. For CAFE purposes, "control" is the ability to exercise a major influence over a company's average fuel economy and production. In addition to the ownership of a controlling bloc of stock, control for our purposes could be shown by control over the design and availability of certain models and other factors affecting production, sales mix and technological improvements.

Applying these terms to the facts presented by your letter compels the conclusion that cars imported by company C may be included in company A's fleet for CAFE purposes. Company C is controlled by company B. Company B is controlled by Company A by virtue of Company A's ownership of more than one-third of the outstanding shares of B and agreements between A and B indicating that A has the ability to exercise considerable influence over the design, production, and model mix of vehicles produced by B. Accordingly, NHTSA believes that it is appropriate for cars imported by C, a company controlled by B, to be included in A's fleet.

I hope that this letter is responsive to your inquiry. If you have any further questions or need additional information, please contact me or Otto Matheke of my staff at (202) 366-5263.

Sincerely,

John Womack

Acting Chief Counsel

ref:533

d:9/19/96

ID: 3296yy

William R. Willen, Esq.
Managing Counsel
Product Legal Group
American Honda Motor Co., Inc.
1919 Torrance Boulevard
Torrance, California 90501-2746

Dear Mr. Willen:

This responds to Honda's request for an interpretation of Federal Motor Vehicle Safety Standard No. 123, Motorcycle controls and displays. You stated that Honda is developing a braking system for motorcycles that would offer full proportioning front and rear when utilizing either the front hand control, or the rear control. You asked whether such a system would be permitted by the standard, particularly in light of section S5.2.1. As discussed below, such a braking system would be permissible under Standard No. 123.

By way of background information, the National Highway Traffic Safety Administration does not provide approvals of motor vehicles or motor vehicle equipment. Under the National Traffic and Motor Vehicle Safety Act, it is the responsibility of the manufacturer to ensure that its vehicles and equipment meet applicable requirements. The following represents our opinion based on the facts set forth in your letter.

S5.2.1, Control location and operation, includes the following language:

If a motorcycle is equipped with self-proportioning or antilock braking devices utilizing a single control for front and rear brakes, the control shall be located and operable in the same manner as a rear brake control.

Table 1 of Standard No. 123 provides that a rear wheel brake control must be a right foot control and must depress to engage. (Table 1 also includes an additional option that is not necessary to address in this letter.)

Since Honda's motorcycle would be equipped with a self-proportioning device utilizing a single control for front and rear brakes, it would be subject to this requirement. If Honda's "rear foot control" is one that is operated by the right foot and must be depressed to be engaged, that control would satisfy S5.2.1.

It is our interpretation that so long as one control meets the specified requirements for location and operation, additional controls serving the same purpose may be provided voluntarily by the manufacturer and need not meet those requirements. I note that this view is similar to a position taken in an April 26, 1983 interpretation letter to an addressee whose identity has been withheld for reasons of confidentiality. In that letter, the agency stated, in the context of discussing S5.2.1, that "[u]se of ... a self-proportioning device does not preclude additional brake actuation devices." I am, for your information, enclosing a copy of that letter. In the situation at issue, we would consider the front hand control on Honda's design to be an "additional brake actuation device," and therefore, not precluded by Standard No. 123.

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

Sincerely,

Paul Jackson Rice Chief Counsel

/ref:123 d:1/28/92

ID: 3297yy

Thomas A. Gerke, Esq.
Smith, Gill, Fisher & Butts
1200 Main St., Suite 3500
Kansas City, MO 64105-2152

Dear Mr. Gerke:

This responds to your December 23, 1991 letter concerning Safety Standard 107, Reflecting Surfaces. You asked us to confirm the interpretation of the standard set forth in my September 3, 1991 letter to Mr. Thomas Steinhagen. The interpretation is correct.

My letter to Mr. Steinhagen was about the applicability of Standard 107 to a replacement windshield wiper arm and blade, a type of motor vehicle equipment that your client, Rally Manufacturing, seeks to sell. You state that Rally ceased producing certain windshield wiper arms and blades after NHTSA's Enforcement office notified Rally that it appeared the products did not meet the requirements of Standard 107.

My letter to Mr. Steinhagen clarified the requirements of Standard 107 and the Vehicle Safety Act. I emphasized the following points in the letter:

1. Standard 107 applies to new motor vehicles, and not to items of motor vehicle equipment, such as a replacement wiper arm and blade. Replacement wiper arms and blades may be sold to consumers without violating Federal law, even if the component does not conform to the requirements of Standard 107.

2. Section 108(a)(2)(A) of the Safety Act prohibits any manufacturer, distributor, dealer or motor vehicle repair business from "rendering inoperative" any device or element of design installed in or on a vehicle in compliance with an applicable safety standard. If a person in the aforementioned categories installed a wiper arm and blade that did not conform to the requirements of Standard 107, the person would violate 108(a)(2)(A).

3. The prohibition of 108(a)(2)(A) does not apply to individual vehicle owners who alter their own vehicles. Thus, individual owners may install any item of motor vehicle equipment regardless of its effect on compliance with Federal motor vehicle safety standards. However, NHTSA encourages vehicle owners not to tamper with vehicle safety equipment if the modification would degrade the safety of the vehicle.

4. Regardless of whether Standard 107 applies to the replacement arm and blade, the device is subject to the requirements in 151-159 of the Safety Act concerning the recall and remedy of products with safety defects. If the manufacturer or NHTSA determines that a safety-related defect exists either in an arm and blade that conforms to Standard 107 or in one that does not, the manufacturer must notify purchasers of the product and remedy the problem free of charge.

In your letter, you specifically ask about the sale of a replacement wiper blade "by a wholesaler/distributor to retail stores and other similar customers without any installation service by the wholesaler/distributor." The sale is not prohibited by Standard 107 or 108(a)(2)(A). However, the retail store or "other similar customer" would be considered a dealer under 102(7) of the Safety Act, and thus subject to the "render inoperative" prohibition of 108(a)(2)(A). While the dealer may sell the replacement blade, the dealer would be prohibited from installing it on a motor vehicle.

I regret any confusion resulting from NHTSA's letters to your client. If you have further questions, please do not hesitate to contact my office.

Sincerely,

Paul Jackson Rice Chief Counsel

/ref:107#VSA d:2/3/92

ID: 3298yy

Mr. S. Suzuki
Managing Director
Suzusho Trading Co.
Center Building No. 601
Fuchucho 1-12-7, Fuchu-shi
Tokyo, Japan

Your ref: ST-9015/91

Dear Mr. Suzuki:

This responds to your letter of October 16, l991, to the Director, Office of Public and Consumer Affairs, with reference to the "Safety Shot" lighting device that you have developed. You have enclosed photographs illustrating three types of this device in operation.

In brief, the device consists of a center red highmounted stop lamp, immediately flanked by amber lamps that serve as supplementary turn signal/hazard warning signal lamps. Although the photos are not entirely clear, the device appears to consist of segmented compartments in a common housing, with thicker dividers separating the signal and stop functions. Type I incorporates an L.E.D. and is mounted at the top of the rear window. Type II also incorporates an L.E.D. and is mounted at the bottom of the window. Type III is located at the top of the rear window and uses conventional bulbs for its light source. You have been referred to us by Chrysler Corporation. We assume that you approached Chrysler with a view towards having your device accepted as original motor vehicle equipment. You have asked for our views on whether it is possible to use this device in the U.S. market.

In the United States, the applicable Federal motor vehicle safety standard for rear lighting is Standard No. 108, Lamps, Reflective Devices, and Associated Equipment. Section S5.4 of Standard No. l08 does not allow a center high-mounted stop lamp to be physically combined with any other lamp or reflective device. Because Safety Shot appears to have a common housing for signalling and stopping functions, the lamps are "combined" within the meaning of the prohibition.

This means that the Safety Shot may not be used as original equipment on motor vehicles, and it may not be offered as a replacement for original equipment center highmounted stop lamps (required on each passenger car manufactured on or after September 1, l985). If you wish to sell the Safety Shot as an accessory in the aftermarket, for passenger cars manufactured before September 1, l985, different considerations apply. Installation of the Safety Shot by a manufacturer, distributor, dealer, or motor vehicle repair business is not permitted if it renders inoperative, in whole or in part, the function of any other rear lighting device.

The question, therefore, is whether the effectiveness of the function of any other rear lighting device is compromised by the Safety Shot to the extent that the other device's function is rendered, at the minimum, partially inoperative. We note that original equipment amber signal lamps are not prohibited from flashing when the stop lamps are operating. It would not appear that the addition of the Safety Shot to a passenger car manufactured before September 1, l985, would compromise the signals from the original turn signal and stop lamps in a manner to render them, at least, partially inoperative. However, the Safety Shot is subject to regulation by the individual States of the United States in which it is sold or used. We are unable to advise you on State laws, and suggest that you write for an opinion to American Association of Motor Vehicle Administrators, 4600 Wilson Boulevard, Arlington, Va. 22203.

Motor vehicles are also required to be manufactured to conform to Standard No. 111, Rearview Mirrors. Under this standard, if installation of the Safety Shot prevents the vehicle from meeting the rearview mirror field of view requirements specified, the manufacturer, distributor, dealer, or motor vehicle repair business installing the Safety Shot must install a rear view mirror on the passenger side of the vehicle (as a practical matter, most vehicles in the U.S. are manufactured with this additional mirror).

Sincerely,

Paul Jackson Rice Chief Counsel

ref:108 d:1/31/92

ID: 3299yy

Air Mail

Richard Gray, Secretary Sports Car Club of New Zealand, Inc. P.O. Box 6282 Wellesley St, Auckland 1 New Zealand

Dear Mr. Gray:

This responds to your letter asking for information about whether certain motor vehicles manufactured in the United States and imported into New Zealand comply with the requirements of the U.S. Federal Motor Vehicle Safety Standard No. 205, Glazing Materials, and Standard No. 208, Occupant Crash Protection. You explained that the New Zealand Ministry of Transport (MOT) is introducing new vehicle safety standards in an effort to align New Zealand's standards with those of the United States, Europe, Australia, and the United Kingdom. To that end, you stated that the MOT is requiring importers to ensure that the vehicles they import meet the relevant safety standards of these countries. You further indicated that you are responsible for providing proof to the MOT that certain privately imported, "low volume vehicles" (built in numbers less than 200 per year) comply with the requirements of their country of origin, or that the country has a special exemption for low volume vehicles. Accordingly, you asked for clarification of Standards No. 205 and 208, and other Federal regulations, as they would be applied to these vehicles. I am pleased to be able to provide the following information.

In the case of the United States, section 103 of the National Traffic and Motor Vehicle Safety Act (15 U.S.C. 1392) authorizes the National Highway Traffic Safety Administration (NHTSA) to issue Federal motor vehicle safety standards for new motor vehicles and new motor vehicle equipment. NHTSA has exercised this authority to issue a number of safety standards. The Safety Act then requires that all motor vehicles and motor vehicle equipment manufactured or sold in, or imported into, the United States comply with the safety standards adopted by NHTSA. Specifically, 108(a)(1)(A) of the Safety Act provides:

no person shall manufacture for sale, sell, offer for sale, or introduce or deliver into introduction in interstate commerce, or import into the United States, any motor vehicle or item of motor vehicle equipment manufactured on or after the date any applicable Federal motor vehicle safety standard takes effect under this title unless it is in conformity with such standard and is covered by a certification issued under 114...

Generally speaking, then, to the extent that the vehicles you import are manufactured and sold in the United States, those vehicles would have to comply with all applicable safety standards, including Standards No. 205 and 208, regardless of the number of such vehicles produced by the manufacturer.

The fact that your letter is seeking proof that a motor vehicle actually complies with applicable safety standards may, however, indicate a misunderstanding of the certification process in the United States. The process of certifying compliance with applicable safety standards under the Safety Act is substantially different than that used in many other countries. For instance, many European nations require manufacturers to deliver motor vehicles to a governmental entity for testing. After the governmental entity itself tests the vehicle, the government approves the vehicle and assigns an approval code. In countries using such a pre-sale approval certification process, the governmental entity would have specific information about the actual compliance of vehicles with applicable standards.

In the United States, the Safety Act does not authorize NHTSA to do any pre-sale testing or approval of motor vehicles and motor vehicle equipment. Consequently, NHTSA does not have any "proof of actual compliance" of vehicles. Instead, the Safety Act establishes a self-certification process under which every manufacturer is required to certify that each of its products meets all applicable Federal safety standards. The vehicle manufacturer is required to certify that its vehicles comply with all applicable safety standards by permanently affixing a label to the driver's side door hinge pillar, door-latch post, or the door edge that meets the door-latch post. Among other things, that label must contain the statement: "This vehicle conforms to all applicable Federal motor vehicle safety standards in effect on the date of manufacture shown above."

Under the self-certification process used in the United States, NHTSA does conduct periodic enforcement tests on vehicles and items of equipment that have been certified by their manufacturer to ensure that the products do, in fact, comply with the safety standards. NHTSA also investigates alleged defects related to motor vehicle safety. In order for this agency to determine whether any of the vehicles imported into New Zealand were subject to an enforcement test or a defects investigation by this agency, you would have to provide us with specific descriptive information about each of the subject vehicles, including the date of manufacture.

It should be a simple exercise for you to check the area around the driver's side door of the vehicles in question to see if the manufacturer affixed a U.S. certification label, stating that the vehicle conforms to all applicable Federal motor vehicle safety standards. If the vehicle has such a label, there would not seem to be any reason for questioning the manufacturer's representation. On the other hand, if there is no such label, neither the vehicle's manufacturer nor anyone else has suggested that the vehicle conforms with the safety standards of the United States.

Finally, you asked whether the United States has any Federal regulations regarding the installation of registration plates on the front of vehicles. The answer is no; vehicle registration is a matter addressed by each of the individual States, not by the Federal government. Thus, the requirements for display of registration plates on the front of vehicles differ from State to State. If you are interested in further information on the requirements of the individual States, you may wish to contact: American Association of Motor Vehicle Administrators, 4600 Wilson Boulevard, Arlington, Va. 22203, U.S.A.

Sincerely,

Paul Jackson Rice Chief Counsel /ref:VSA d:1/23/92

ID: 3300yy

Mr. Terry Semprini
Executive Director
Cycle Country Accessories Corp.
Rt. 3, Box 125
Hwy 71 North
Milford, Iowa 51351

Dear Mr. Semprini:

This responds to your letter of December 10, 1991, to Taylor Vinson of this Office, asking whether a lighting device developed by your company "is legal to run in all of the United States."

From the pictures you enclosed, we note that your device is a diamond-shape lamp, incorporating six amber lamps which form right and left turn signals. In addition, four red lamps are used for stop and hazard warning lamp purposes. These lamps are arranged in a V shape at the top of the device, and an inverted V at the bottom. In the photos you enclosed, the device appears installed near the top of the truck, to the left of the vertical centerline, midway between the centerline and the left edge of the vehicle. It appears that the intent of this device is, in the position depicted, to serve as the vehicle's turn signal lamps, hazard warning signal lamps, and stop lamps in the event that the original equipment lamps were obscured by one or more intervening vehicles. This would occur were the stop lamps and turn signal lamps mounted at the bottom of the vehicle body, as depicted in your photographs.

By way of background information, Section 103 of the National Traffic and Motor Vehicle Safety Act (Safety Act; 15 U.S.C. 1392) authorizes the National Highway Traffic Safety Administration (NHTSA) to issue Federal motor vehicle safety standards for new motor vehicles and new items of motor vehicle equipment. We have exercised this authority to establish Standard No. 108, Lamps, Reflective Devices, and Associated Equipment (49 CFR 571.108). Standard No. 108 applies to new motor vehicles and to lamps, reflective devices, and associated equipment for replacement of original equipment lamps, reflective devices, and associated equipment. As noted above, it appears that your company's lighting device would be offered as an aftermarket item to supplement, not replace, the original equipment lamps. Assuming this is the case, Standard No. 108 would not directly apply to your company's lighting device and your company would not be required to certify that the lighting device conforms with Standard No. 108.

Even though Standard No. 108 does not appear to directly apply to this lighting device, there is a provision of the Safety Act that applies to the installation of aftermarket items of motor vehicle equipment. Section 108(a)(2)(A) of the Safety Act (15 U.S.C. 1397(a)(2)(A)) prohibits any manufacturer, distributor, dealer, or repair shop from knowingly "rendering inoperative," in whole or in part, any device or element of design installed on or in a vehicle in compliance with an applicable safety standard. The effect of this provision is to make it unlawful for any of the named commercial establishments to add or replace any lamp, reflective device, or associated equipment on a motor vehicle if the commercial establishment knows or should know that the addition of the aftermarket lighting equipment results in the vehicle no longer complying with Standard No. 108.

It appears that your company's lighting device would "render inoperative" the required lighting equipment on a trailer by impairing its effectiveness.

First, we note that the device as positioned fails to fulfill basic locational requirements of Standard No. l08 that rear lamps be installed one on each side of the vertical centerline and as far apart as practicable. The signal sent by these lamps could therefore be perceived as conflicting or unclear when viewed simultaneously with the original equipment lamps.

Second, we note that the hazard warning system of the device operates through the stop lamps rather than through the turn signal system as is the case with original equipment. This means that a viewer could be faced with the necessity of interpreting the meaning of simultaneously flashing red and amber lamps on the rear of the vehicle, as well as the meaning of the original stop lamps should the brakes also be applied.

Finally, we note that the stop lamp portion of the device, two lamps forming a V and two more an inverted V, form a lighting array that the public does not associate as a traditional stop lamp system, usually circular or rectangular lamps. Thus, a viewer to the rear could be faced with a momentary delay in interpreting the meaning of the simultaneous appearance of light from the stop lamps, and from the auxiliary device mounted to the left of center on the rear of the vehicle.

For the above reasons, we view your device as having the potential to render inoperative certain rear lamps required on trailers by Standard No. 108. Accordingly, it would be a violation of Federal law for any manufacturer, distributor, dealer, or repair shop to install your company's lighting device on a customer's trailer.

This "render inoperative" prohibition does not apply to individual vehicle owners. Vehicle owners may add lighting devices or make other modifications to their own vehicles without violating any provision of Federal law, even if the owner's modifications result in the vehicle no longer complying with Standard No. 108. However, the individual States are free to establish whatever restrictions, if any, they deem appropriate on individual owner modifications. Thus, a State or States might choose to prohibit individual owners from equipping their trailers with your company's lighting device. We are unable to advise you on the laws of the individual States. You can obtain further information on State laws by writing to: American Association of Motor Vehicle Administrators, 4600 Wilson Boulevard, Arlington, Va. 22203.

Sincerely,

Paul Jackson Rice Chief Counsel

/ref:108#VSA d:1/23/92

ID: 3301yy

Mr. Robert A. Rogers, Director
Automotive Safety Engineering
Environmental Activities Staff
General Motors Corporation
General Motors Technical Center
30400 Mound Road
Warren, MI 48090-9015

Dear Mr. Rogers:

This responds to your request that this agency determine that the new antitheft device to be installed on the MY 1992 General Motors Pontiac Bonneville line, represents a de minimis change in the system that was the basis for the agency's previous granting of a theft exemption for the car line beginning in MY 1991, and that therefore the Pontiac Bonneville vehicles containing the new device would be fully covered by that exemption. The agency has reviewed the changes to the system and for the following reasons concludes that the differences between the original system and one installed on the MY 1992 Pontiac Bonneville constitute a de minimis change.

As you are aware, the Pontiac Bonneville car line was granted an exemption, pursuant to 49 CFR Part 543, from antitheft marking because General Motors showed that the antitheft device to be used in lieu of marking on the car line was likely to be as effective as parts marking. This antitheft device is known as the "PASS-KEY" antitheft system. The exemption was issued on April 4, 1991, and appeared in the Federal Register on April 9, 1991 (56 FR 14413).

As was stated in the April 1991 Federal Register notice, the "PASS-KEY" antitheft system utilizes an ignition key, an ignition lock cylinder and a decoder module. Before a vehicle can be started, the electrical resistance of a pellet embedded in the shank of the key must be sensed by elements in the lock cylinder and its value compared to a fixed resistance in the decoder module.

In your letter, it was stated that beginning from MY 1992, two design changes were made in the "PASS-KEY" antitheft device that is standard equipment on the Pontiac Bonneville. The new system on the Bonneville is known as "PASS-KEY II," and differs from "PASS-KEY" as follows. First, in "PASS-KEY II," if a key other than the one with proper resistance for the vehicle is inserted, the decoder module will shut down the fuel injector pulses to the engine for three minutes plus or minus eighteen seconds. In "PASS-KEY," this shut down period is two to four minutes. Second, if, during the time the decoder module has shut down in "PASS-KEY II," trial and error attempts are made to start the engine with various keys, the timer will not reset to zero, as is the case with "PASS-KEY." GM states that this difference in functions will provide a similar level of performance as "PASS-KEY" since the "PASS-KEY II" module, while shut down, will ignore further attempts to start the system by means other than use of a key with the proper resistance pellet. Any further unauthorized attempt after the initial three minute shut down time will result in the module shutting down again.

After reviewing the proposed changes to the componentry and performance of the antitheft device on which the exemption was based, the agency concludes that the changes are de minimis. In addition to providing some aspects of performance not provided by the original device, "PASS-KEY II" also continues to provide the same aspects of performance provided by the original device and relies on essentially the same componentry to provide that performance. Therefore, it is not necessary for General Motors to submit a petition to modify the exemption pursuant to 49 CFR Part 543.9(c)(2).

If General Motors does not implement the new antitheft device as described in your letter for MY 1992, we request that this agency be notified of such decisions.

Sincerely,

Barry Felrice Associate Administrator for Rulemaking / ref:Part 543 d:2/7/92