ID: 3323o

Mr. Dana Strahan
City of Orange
Water Department
P. O. Box 449
Orange, CA 92666-1591

Dear Mr. Strahan:

This is in response to your inquiry earlier this year to Mr. Ralph Hitchcock of our Rulemaking Division, in which you asked for information about Federal regulations that apply to the labeling of a vehicle that has been modified to increase its gross vehicle weight rating (GVWR) above that on the original label. I am pleased to have this opportunity to explain our certification regulations to you.

Some background information on Federal motor vehicle safety laws and regulations may be helpful. As you are aware, our agency is authorized, under the National Traffic and Motor Vehicle Safety Act (15 U.S.C. 1381 et seq.; Safety Act), to issue safety standards applicable to new motor vehicles and certain items of motor vehicle equipment. NHTSA, however does not approve motor vehicles or motor vehicle equipment, nor do we endorse any commercial products. Instead, the Safety Act establishes a "self-certification" process under which each manufacturer is responsible for certifying that its products meet all applicable safety standards.

For the purposes of this response, I have assumed that you were concerned about modifying vehicles that are already owned by the City of Orange Water Department. If this is incorrect, and you plan to modify new vehicles before their first sale or your department is in the business of modifying other persons' vehicles, please let me know because different requirements would apply.

Neither the Safety Act nor any of our standards and regulations apply to modifications individual vehicle owners make to their own vehicles. Therefore, as a local government agency, the city of Orange, using in-house resources, can perform whatever modifications it desires to its own vehicles. Similarly, our certification regulation does not require modifiers of used vehicles to provide a separate certification label for the modified vehicle. As a word of caution, however, we suggest that any modification made to a vehicle that changes the GVWR assigned by the vehicle's original manufacturer should only be done after the modifier has made a thorough engineering analysis of the entire vehicle. We would suggest that you contact the original vehicle manufacturer for help in making such an analysis.

You also indicated that you were concerned about potential liability that could arise if no additional label were affixed to show the modified vehicle's new GVWR. As explained above, a person modifying his or her own vehicle after its first purchase would not be subject to any potential liability under Federal law. If you are asking for information about potential liability under the laws of the State of California, this agency does not comment on such potential liability. I suggest that you contact the Attorney General for the State of California or a local attorney for an opinion about potential liability under California law.

I hope this information proves helpful. Please contact this agency again if we can be of further assistance.

Sincerely,

Erika Z. Jones Chief Counsel

/ref:VSA#567 d:l2/20/88

ID: 3324o

Mr. Donald Smith
Chief Inventor
New Innovative Systems
1047 E. Vernon Road
Philadelphia, PA 19146

Dear Mr. Smith:

This is in reply to your recent undated letter regarding the "Highway Automatic Communications Indicator (HACI)", as supplemented by a telephone conversation between you and Stephen Wood of my staff on December 20, l988. You have asked for approval of your device.

The HACI "will display, via a transparent display screen mounted in the rear window, pre-programmed distress messages, activated only when with the automobile is at a complete standstill." The diagram of the display alert indicates that the message would appear in the middle of the rear window, rather than at the bottom of the window where the lamp would be. When not activated, the device would be transparent. It would be activated by a special switch, not by the brake pedal. It is our understanding that the HACI would be activated only when the vehicle is stationary, and is not wired into the brake light or hazard light system.

The National Highway Traffic Safety Administration has no authority to approve or disapprove individual inventions or devices. We can, however, advise you as to the relationship of the HACI to the Federal motor vehicle safety standards and the National Traffic and Motor Vehicle Safety Act under the authority of which the standards are issued. These standards must be met at the time a vehicle is sold to its first purchaser, and persons other than the purchaser may not modify a vehicle after its sale in a manner that, in essence, renders it noncompliant with any standard.

There are three standards potentially affected by the HACI. The first is the lighting standard, Standard No. l08. Since the HACI's display screen is mounted in the rear window, a problem could arise if the center high mounted stop lamp required by Standard No. l08 is also mounted in that area. The HACI is permissible as original vehicle equipment as long as it does not impair the effectiveness of the high mounted lamp, or any other lamp required by Standard No. l08. While this determination is the responsibility of the vehicle manufacturer (or dealer, if the HACI is installed after vehicle manufacture but before sale to its first purchaser) in the first instance, it appears to us that the effectiveness of the high mounted lamp would not be impaired. We base this conclusion on our understanding that the message would appear in the middle of the rear window, instead of at the bottom of the window where the lamp would be and that it would apparently be activated only when the vehicle was stationary, such as parked on the side of the road.

The second standard potentially affected is Standard No. lll, relating to rearview mirrors. This standard specifies a field of view to be met by the inside rearview mirror; if the mirror does not provide this field of view, an outside mirror on the front seat passenger side must be provided. Since your device is reportedly transparent when not activated, and would be activated only when the vehicle is stationary, it may well be that there is no necessity for the addition of an outside mirror. However, we do not have sufficient information to determine whether the HACI would impede the field of view under all conditions.

The third standard potentially affected is Standard No. 205, relating to glazing. This requires, in part, that all glazing in passenger cars have at least 70 percent light transmittance. To the extent that the display screen reduces light transmittance, it could create a noncompliance with this standard. However, because you have indicated that your display screen is transparent, it does not appear likely that any reduction in light transmittance would fall below the specified minimum.

With this guidance and your knowledge of the HACI, you should be able to judge whether installation of the HACI either before or after the initial sale of a passenger car might be regarded as creating a noncompliance with a Federal motor vehicle safety standard, or otherwise be in violation of the Act. An official judgment regarding noncompliance or violation is made by the agency only in the context of an enforcement proceeding.

In addition, you should be aware that the HACI remains subject to the laws of the individual States. We cannot advise you of its legality under these laws. To obtain an opinion on this matter, you may wish to consult the American Association of Motor Vehicle Administrators, 4600 Wilson Blvd., Arlington, Va. 22203.

Sincerely,

Erika Z. Jones Chief Counsel

/ref:108 d:l2/29/88

ID: 3325o

Mr. Wes Sprunk
Saf-Tee Siping & Grooving, Inc.
l4l80 West 78th, Suite l02
Eden Prairie, MN 55344

Dear Mr. Sprunk:

This responds to your letter concerning the siping of tires. You asked whether "there is any possible problem with the siping of new, used, truck, passenger, or light duty tires," under Department of Transportation regulations. Your question is responded to below, to the extent that it concerns regulations of the National Highway Traffic Safety Administration (NHTSA). We note that your letter indicates that you have also discussed this issue with officials of the Federal Highway Administration.

By way of background information, NHTSA does not provide approvals of motor vehicles or motor vehicle equipment. Under the National Traffic and Motor Vehicle Safety Act (Vehicle Safety Act), it is the responsibility of the manufacturer to ensure that its motor vehicles or equipment meet applicable standards.

As noted by your letter, the term "siping" should be distinguished from "grooving." You stated that grooving is a "process of removing rubber from the tire to give it an additional space for water release." You stated that siping is "a process of cross cutting the tread, never deeper than the original tread depth of the tire; and in most cases, l/32" or less, with a fine knife--either four or five cuts to the inch--that does not remove rubber."

Section l08(a)(l) of the Vehicle Safety Act prohibits any person from manufacturing for sale, selling or offering for sale, introducing or delivering for introduction in interstate commerce, or importing into the United States, any item of motor vehicle equipment unless it is in conformity with Federal motor vehicle safety standards. The prohibitions of section l08(a)(l) do not apply after the first purchase in good faith for purposes other than resale. (Section l08(b)(l).)

NHTSA has issued several safety standards for tires. Standard No. l09 specifies performance and labeling requirements for new pneumatic tires for use on passenger cars; Standard No. ll7 specifies performance and labeling requirements for retreaded pneumatic tires for use on passenger cars; and Standard No. ll9 specifies performance and labeling requirements for new pneumatic tires for vehicles other than passenger cars.

The siping of new tires (including retreaded tires) is permissible only if that operation does not adversely affect the compliance of the tire with Standard No. l09, ll7 or ll9, as applicable. If a dealer offers for sale or sells new tires (including new retreaded tires) that have been siped and those tires do not comply with Standard No. l09, ll7 or ll9, as applicable, the dealer would be subject to a civil penalty of up to $l,000 for each tire that did not comply.

Section l08(a)(2)(A) prohibits any manufacturer, distributor, dealer, or motor vehicle repair business from knowingly rendering inoperative, in whole or part, any device or element of design installed on or in an item of motor vehicle equipment in compliance with an applicable Federal motor vehicle safety standard. Thus, any persons or businesses within the above categories that perform siping should ensure that the siping does not render inoperative the compliance of tires with applicable Federal motor vehicle safety standards.

You should also be aware that the agency's regulation on regrooved tires (49 CFR Part 569) specifies requirements concerning regrooved tires and regroovable tires which have been siped. See sections 569.7(a)(2)(vii) and 569.7(b).

I hope this information is helpful.

Sincerely,

Erika Z. Jones Chief Counsel

ref:l09#ll7#ll9 d:l2/30/88

ID: 3326o

Mr. C. S. Allen
Commander
Department of California Highway Patrol
P.O. Box 942898
Sacramento, CA 94298-000l

Dear Mr. Allen:

This responds to your letter requesting an interpretation of Standard No.l02, Transmission Shift Lever Sequence, Starter Interlock, and Transmission Braking Effect. That standard requires vehicles equipped with automatic transmissions have a starter interlock. You stated that you believe that a vehicle would not meet the standard if it was also equipped with a starter interlock bypass switch. As discussed below, we agree with your position.

According to your letter, the California Highway Patrol has become aware that a school bus manufacturer "has been building vehicles equipped with automatic transmissions which, although equipped with the interlock required by 49 CFR 57l.l02 S3.l.3, are also equipped, at the driver's position, with a momentary contact push-button switch, the purpose of which is to bypass the transmission neutral safety switch." If the driver uses one hand to operate the bypass switch and the other hand to operate the regular starter key-type switch, the bus can be started with the transmission shift lever in a forward or reverse drive position.

You noted that the manufacturer stated its belief that the bypass switch complies with Standard No. l02 since the switch is regarded as "an emergency feature, not intended to be used for routine engine starts." You stated that it is your position that "the bypass switch renders buses equipped with automatic transmissions in violation of FMVSS l02" and that the manufacturer "appears to be interpreting FMVSS l02 as meaning that the starter shall not be capable of being started from the driver's position with the transmission in gear unless the driver intends to do that." Emphasis in original.

Section S3.l.3, which applies only to vehicles equipped with automatic transmissions, reads as follows:

S3.l.3 Starter interlock. The engine starter shall be inoperative when the transmission shift lever is in a forward or reverse drive position.

It is our opinion that a vehicle would not meet this requirement if it can be started, when the transmission shift lever is in a forward or reverse drive position, by means of the regular starter key-type switch and a starter interlock bypass switch . In this instance, the engine starter would not be "inoperative." This opinion is not changed by the fact that the manufacturer may intend the bypass switch as an emergency feature, not intended to be used for routine engine starts. The intention of the manufacturer does not change the fact that the engine starter would not be "inoperative," and Standard No. l02 does not provide for any exceptions to this requirement (for covered vehicles).

We are referring your letter to our Office of Enforcement for appropriate action.

Sincerely,

Erika Z. Jones Chief Counsel / ref:l02 d:l2/30/88

ID: 3327o

Mr. C. I. Nielsen III
Vice President/General Sales Manager
Wesbar Corporation
Post Office Box 577
West Bend, WI 53095

Dear Mr. Nielsen:

This is in reply to your letter of November ll, l988, asking for an interpretation of Motor Vehicle Safety Standard No. l08. Specifically, you find unclear the "minimum square inches required of a turn signal lens for a trailer/vehicle, 80" or more in overall with, using a single compartment lamp assembly".

As you stated, the applicable standard is SAE J588e Turn Signal Lamps, September 1970. This standard does not set minimum area requirements per se for turn signal lenses, but it does specify minimum requirements for "effective projected luminous areas" of turn signal lamps. With respect to a single compartment turn signal lamp, section 3.2 of J588e requires this area, when measured on a plane at right angles to the axis of the lamp, to be at least 8 square inches for a rear lamp, and at least 3.5 square inches for a front lamp.

As you are probably aware, on September 9 of this year the agency proposed adopting SAE J1395 APR85 Turn Signal Lamps for Use on Motor Vehicles 2032mm or More in Overall Width. Its section 5.3.2 requires "the functional lighted lens area of a single lamp" to be at least 75 square centimeters (12 square inches). The agency is currently reviewing the comments received on the proposal.

I hope that this clarifies the matter for you.

Sincerely,

Erika Z. Jones Chief Counsel

ref:l08 d:l2/30/88

ID: 3328o

Mr. Frank J. Trecy
General Manager - Manufacturing
Miller Structures, Inc.
58120 C. R. 3 South
P. O. Box 1283
Elkhart, Indiana 46515

Dear Mr. Trecy:

I am writing in response to your request for an interpretation of whether Standard No. 115; Vehicle Identification Number - Basic Requirements (49 CFR 571.115) would apply to your company's portable commercial use structures. In your letter to me, you stated that Miller Structures, Inc. manufactures offices, storage buildings, classrooms, laboratories, branch banks, medical clinics, and other related commercial buildings on axles. This allows the structures to be transported to the desired location by attaching them to a truck tractor and moving them over the roads. You state that a "considerable" number of your units go to a location and are placed there permanently. You inform us that other buildings are placed on a location "for varying lengths of time" and are then relocated.

In a subsequent telephone conversation with Dorothy Nakama of my office, you stated that the structures are not self-propelling but must be towed by a semi-trailer or truck. Some of these structures have removable running gears. You also stated that the structures are constructed very much like mobile homes, and that the structures are intended to go on the public roads at least once, in order to get to their designated sites. You also stated that your structures are not regulated by the U. S. Department of Housing and Urban Development (HUD) because they are not homes.

Standard No. 115, and all of our safety standards, apply only to vehicles that are "motor vehicles," within the meaning of the National Traffic and Motor Vehicle Safety Act (15 U.S.C. 1381 et seq.). The term "motor vehicle" is defined at section 102(3) of the Safety Act as follows:

"Motor vehicle" means any vehicle driven or drawn by mechanical power manufactured primarily for use on the public streets, roads, and highways, except any vehicle operated exclusively on a rail or rails. We have interpreted this language as follows. Vehicles that are equipped with tracks or are otherwise incapable of highway travel are plainly not motor vehicles. Agricultural equipment, such as tractors, are not motor vehicles. Further, vehicles designed and sold solely for off-road use (e.g., airport runway vehicles and underground mining vehicles) are not considered motor vehicles, even though they may be operationally capable of highway travel. Vehicles, such as mobile construction equipment, that use the public roads only to travel between job sites and which typically spend extended periods of time at a single job site are not considered motor vehicles. In such cases, the use on the public roads is merely incidental, not the primary purpose for which the vehicle was manufactured.

On the other hand, vehicles that use the public highways on a necessary and recurring basis are motor vehicles. For instance, utility vehicles like the Jeep are plainly motor vehicles, even though they are equipped with special features to permit off-road operation. If a vehicle's greatest use will be off-road, but it will spend a substantial amount of time on-road, NHTSA has interpreted the vehicle to be a "motor vehicle". Further, if a vehicle is readily usable on the public roads and is in fact used on the public roads by a substantial number of owners, NHTSA has found the vehicle to be a motor vehicle. This finding was made with respect to dune buggies and regardless of the manufacturer's stated intent regarding the terrain on which the vehicles were to be operated.

Based on the information you have provided, it appears that your portable structures are not "motor vehicles" within the meaning of the Safety Act and, therefore, are not subject to the requirements of Standard No. 115 or any other of our safety standards. This conclusion is based on our judgment that the vehicles seem analogous to mobile construction equipment - i.e., the on-road use of the vehicles appears to be incidental and not the primary purpose for which the vehicles are manufactured. Please note that this conclusion is based solely on the facts presented in your letter. We may reexamine this conclusion if additional information becomes available that would warrant a reexamination.

Additionally, you should note that this interpretation applies only to Federal requirements. The individual States may establish their own identification requirements for vehicles that are not subject to the Federal identification requirements, such as your mobile structures. Thus, the State of South Dakota could establish identification requirements applicable to your mobile structures sold in that State.

I hope the information provided above is useful. If you need further information on this subject, please contact Dorothy Nakama at (202) 366-2992 or write to me again.

Sincerely,

Erika Z. Jones Chief Counsel

/ref:VSA#115 d:l2/30/88

ID: 4-15-02 Meier ltr

Mr. Norbert Meier
WIRA Fahrzeug-und Maschinenteile GmbH
Alte Papiermuehle Haemmern 8
D-51688 Wipperfuerth
Bundesrepublik Deutschland

Dear Mr. Meier:

This responds to your e-mail about marking requirements for air brake end fittings in Federal Motor Vehicle Safety Standard (FMVSS) No. 106, Brake Hoses (49 CFR 571.106).

You explain that your company manufactures compression and push-in end fittings for air brake systems used on commercial vehicles. You indicate that a major truck builder has asked your company to mark the end fittings in accordance with FMVSS No. 106. You ask how you would go about receiving approval to mark your company's products with the "DOT" symbol. You also note that your company does not produce tubing or hoses, just end fittings, and you indicate that the assembly of the fittings with the tubes/hoses is done by the truck or trailer builder.

At the outset, I would like to make clear that the United States does not use a certification process similar to that used by the European countries, in which a manufacturer delivers its products to be certified to a governmental entity, and that entity tests the products to determine if they comply with the applicable standards. Instead, in the United States, the individual manufacturer of the products is responsible for assuring and certifying that its products meet all applicable U.S. safety standards. After the manufacturer has made the necessary certifications, the products may be sold to the public without any "approvals" or "endorsements" from this agency.

Marking requirements for end fittings are set forth in 49 CFR 571.106, paragraph S7.2.2 (subparagraphs (a) through (d)), copy enclosed. All end fittings, except those that are permanently attached to the hose by crimping or swaging, must be marked. Because the end fittings your company manufactures are not permanently attached, FMVSS No. 106 requires that they be "etched, embossed, or stamped in block capital letters and numerals at least one-sixteenth of an inch high" as described in the following paragraphs.

First, each end fitting must be marked with the symbol "DOT," indicating that the fitting has been certified to meet all applicable FMVSS. (See S7.2.2(a).) Second, the end fitting must be marked with a designation identifying your company as the manufacturer of the fitting ("manufacturer's designation.)" (See S7.2.2(b).) The process for filing a manufacturer's designation with the National Highway Traffic Safety Administration (NHTSA) is discussed in greater detail below. Third, each end fitting must be marked with the letter "A" to indicate that it is intended to be used in air brake systems. In addition, if the fitting is intended to be used in a reusable assembly with brake hose specified in Table III of paragraph S7.1 of FMVSS No. 106, then the letter "A" must be followed by a Roman numeral indicating the hose's type (for example, "AI" signifies Type I air brake hose). (See S7.2.2(c).)

Fourth, if the end fitting is intended for use with air brake hose, it must be marked to indicate the nominal inside diameter of the hose, expressed in inches, fractions of inches, or millimeters. If, on the other hand, the fitting is intended for use with plastic air brake tubing, it must be marked to indicate the nominal outside diameter of the tubing, expressed in inches, fractions of inches, or millimeters, followed by the letters "OD." If the nominal inside/outside diameter is expressed in millimeters, the number representing the size must be followed by the designation "mm." (See S7.2.2(d).)

Prior to marking your products to certify compliance with FMVSS No. 106, you must file a manufacturer's designation with this agency at the following address: Office of Vehicle Safety Compliance, Equipment and Imports Division (NSA-32), National Highway Traffic Safety Administration, 400 Seventh Street, S.W., Washington, D.C. 20590. The designation is intended to identify the manufacturer of the end fittings in the event a safety-related defect or noncompliance is determined to exist. There is no standard form for manufacturers to register their designation. Designations may consist of letters, numerals, or a symbol, or any combination of these. If your chosen designation has not been selected previously by another manufacturer, it will be accepted and recorded by NHTSA.

For your information, we also note two procedural requirements that apply to manufacturers headquartered outside the United States. The first is 49 CFR Part 566, Manufacturer Identification (copy enclosed). This regulation requires your company to submit its name, address, and a brief description of the items of equipment it manufactures to the agency within 30 days after it first imports its products into the United States. 49 CFR 566.5, Requirements. This information should also be sent to the Office of Vehicle Safety Compliance at the address listed above.

The second requirement is 49 CFR Part 551, Procedural Rules (copy enclosed). Subpart D of this regulation requires all manufacturers headquartered outside the United States to designate a permanent resident of the United States as the manufacturer's agent for service of all process, notices, orders, and decisions. This designation should be mailed to the Office of the Chief Counsel, General Law Division, National Highway Traffic Safety Administration, 400 Seventh Street, SW, Washington, DC 20590 and must include the following information:

1. A certification that the designation of agent is valid in form and binding on the manufacturer under the laws, corporate by-laws, or other requirements governing the making of the designation at the time and place where it is made;
2. The full legal name, principal place of business, and mailing address of the manufacturer;
3. Marks, trade names, or other designations of origin of any of the manufacturer's products which do not bear its name;
4. A statement that the designation shall remain in effect until withdrawn or replaced by the manufacturer;
5. A declaration of acceptance duly signed by the agent appointed, which may be an individual, a firm, or a U.S. corporation; and
6. The full legal name and address of the designated agent.

In closing, we note that the agency has been petitioned to update FMVSS No. 106, including the requirements for end fittings. NHTSA granted the petition and is now evaluating the issues raised therein. If you are interested in reviewing a copy of this petition, you may access it at the following web address: http://dms.dot.gov/search/document.cfm?documentid=46189&docketid=4367

I hope this information is helpful. In addition to the above, I am also enclosing a manufacturer's information sheet. If you have any questions, please contact Robert Knop of this office at (202) 366-2992.

Sincerely,
Jacqueline Glassman
Chief Counsel
Enclosures
ref:106
d.5/13/02

ID: 5-6-02Corlltr

Ms. Mary L. Corl
217 S. West Boulevard
Elkhart, IN 46514

Dear Ms. Corl:

This responds to your May 1, 2002, electronic mail message to Mr. Tewabe Asebe of the Office of Safety Performance Standards at the National Highway Traffic Safety Administration (NHTSA). Your inquiry was referred to my office for reply. You ask about the Federal requirements that apply to the modification of a used van. You are particularly interested in the replacement of the vehicles "seats, seat belts, pedestals, carpet, blinds, leather-wrapped steering wheels, floor mats, windows, dash kits and wood overhead and floor console."

By way of background, 49 U.S.C. 30101, et seq., authorizes this agency to issue Federal motor vehicle safety standards (FMVSSs) applicable to new motor vehicles and new items of motor vehicle equipment. Under 49 U.S.C. 30112, each person selling a new vehicle must ensure that the vehicle is certified as complying with all applicable FMVSS in effect at the time the vehicle was manufactured. Generally speaking, once a motor vehicle is sold to its first retail purchaser, its use and any modifications made to it become a matter of State, rather than Federal, interest. Thus, owners of used vehicles may personally make any modifications or alterations they want to their vehicles without regard to the FMVSSs, subject only to applicable State requirements.

There is, however, a limit on modifications of used vehicles by commercial entities. You indicated in your letter that a "company" is planning to replace the items you identified. Section 30122 of our statute prohibits manufacturers, distributors, dealers, or motor vehicle repair businesses from making inoperative any device or element of design installed on or in a motor vehicle or equipment in compliance with a Federal motor vehicle safety standard. Violations of 30122 can result in Federal civil penalties of up to $5,000 for each violation, up to a maximum penalty of $15,000,000 for a series of related violations. 49 U.S.C. 30165. Yet, the "make inoperative" prohibition and associated civil penalty provision do not apply to situations where some items of motor vehicle equipment are only being replaced because they are broken. If you have questions about how NHTSAs requirements would apply to a specific part that you or the company are planning to install, please feel free to contact us with information about the modification.

For your general information, NHTSA has the following FMVSSs that might be relevant to the modification you described:

We believe that safety is best assured if the performance of the original safety systems is maintained on vehicles on the road. NHTSA urges vehicle owners not to degrade the performance of the safety systems on their vehicles.

I hope this information is helpful. Enclosed is a fact sheet explaining how to obtain copies of all FMVSS. If you have additional questions, please do not hesitate to contact Robert Knop of this office at (202) 366-2992.

Sincerely,
Jaqueline Glassman
Chief Counsel
Enclosure
ref:misc.
d.6/11/02

ID: 5110r

D. E. Dawkins, Acting Director
Automotive Safety Planning and Compliance
Product Strategy and Regulatory Affairs Office
Chrysler Corporation
CIMS 414-01-22
12000 Chrysler Drive
Highland Park, MI 48288-0857

Dear Mr. Dawkins:

This responds to the petition dated September 30, 1991, that Mr. Kittle submitted on behalf of Chrysler Corporation seeking temporary exemption for the TEVan from several Federal motor vehicle safety standards on the basis that the exemption would facilitate the development and field evaluation of low emission motor vehicles.

The petition indicates (page 4) that exemption is sought for four l989 Dodge Caravans, converted to electric power, that "were manufactured for test and evaluation". We understand that this conversion occurred after completion of the manufacture of the vans, and that the conversion was performed by a subsidiary of Chrysler. If an exemption is granted, the petition states that "one or more of the vehicles will be titled and sold for ongoing endurance evaluation." Finally, we understand that the TEvans are currently in the possession of the Electric Power Research Institute in California for evaluation, and that presumably they are being driven on the public roads.

We regret the delay in responding to Mr. Kittle's letter. The petition represents a rare instance in which a manufacturer has petitioned for an exemption for a vehicle whose manufacture has been completed, and which has been in use. The purpose of an exemption is to allow a manufacturer to engage in conduct that would otherwise be prohibited by the National Traffic and Motor Vehicle Safety Act, specifically, the manufacture for sale, sale, offer for sale, or introduction or delivery for introduction, or importation into the United States of a motor vehicle that does not conform to all applicable Federal motor vehicle safety standards, and which does not bear a certification of compliance with those standards.

With respect to the four TEVans for which petition has been made, it appears that they have already been introduced into interstate commerce without a certification of compliance (or, if bearing the certification of the original vehicle, a certification that is false and misleading in a material respect, a further violation of the Act). Any exemption by the Administrator could not cover conduct violative of the Act that has already occurred. However, we have concluded that the Administrator may grant an exemption to vehicles, which would apply to conduct that would violate the Act, but which has not occurred. As Chrysler seeks an exemption in order to sell the TEVans, or to offer them for sale, the Administrator's exemption authority may be exercised to permit Chrysler to do so, after the procedural requirements have been followed.

The petition meets our requirements for form and content, and a notice requesting public comment is being prepared for publication in the Federal Register. We shall notify you when the Administrator has reached a decision.

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

Sincerely,

Paul Jackson Rice Chief Counsel

ref:555 d:3/30/92

ID: 5673cmc

Mr. Rob Cohen
Auto Advisory Services
14771 Plaza Drive, Suite A
Tustin, CA 92780

Dear Mr. Cohen:

This responds to your July 22, 2003, letter in which you ask about the liability of a car dealer in selling a used vehicle that had an air bag removed by the previous owner. As explained below, there is no Federal requirement for the dealer to replace the air bag.

In your letter you presented a scenario in which, "a licensed vehicle dealer takes a used vehicle in on trade and places it into inventory. The dealer notices that a custom steering wheel had been installed on the vehicle by a prior owner."The original steering wheel was equipped with an air bag, but the replacement does not have one. You ask about the dealers liability in selling the vehicle and if that liability would be affected by the dealers knowledge of the original equipment.

Under Federal law, a person may not sell or offer for sale any motor vehicle that does not comply with all applicable Federal motor vehicle safety standards. 49 U.S.C. 30112(a).However, this requirement does not apply to the "sale [or] offer for sale of a motor vehicle or motor vehicle equipment after the first purchase of the vehicle or equipment in good faith other than for resale (after first retail sale)." 49 U.S.C. 30112(b).

While the Federal motor vehicle safety standards apply only to new motor vehicles and new motor vehicle equipment, Federal law does limit the modifications that can be made by certain businesses to used vehicles. Manufacturers, distributors, dealers, and repair businesses are prohibited from "knowingly making inoperative" any device or element of a design installed on or in a motor vehicle in compliance with an applicable safety standard. 49 U.S.C. 30122.

The "make inoperative" provision would prohibit a dealer from knowingly disabling safety equipment, such as an air bag, that was installed in compliance with an applicable safety standard. However, the provision does not impose an affirmative duty on dealers or other persons to repair equipment on a used vehicle that was disabled by a previous owner. While Federal law does not require dealers to repair or replace safety equipment made inoperative before they obtained the vehicle, the National Highway Traffic Safety Administration strongly urges such repair, so that the vehicle continues to provide maximum safety protection.

Despite the absence of any requirement in Federal law, State law may require replacement of the absent air bag. You may wish to contact the State in which the dealer is located to learn if there are any applicable laws or regulations. Additionally, you may wish to consult a private attorney with respect to potential liability of the dealer for not replacing the air bag.

I hope you find this information helpful. If you have any further questions please contact Mr. Chris Calamita of my staff, at (202) 366-2992.

Sincerely,

Jacqueline Glassman
Chief Counsel

ref:208
d.9/26/03