Interpretation ID: 20393.ztv

Mr. Thomas N. Nelson
President
Athey Products Corporation
1839 S. Main Street
Wake Forest, NC 27587
FAX 919-556-0122

Dear Mr. Nelson:

We have received your petition, dated July 23, 1999, pursuant to 49 CFR Part 555, for a temporary exemption from S5.5.1 of Federal Motor Vehicle Safety Standard No. 105, which requires heavy vehicles manufactured on and after March 1, 1999, to be equipped with an antilock brake system.

Noting that the petition estimated October 1, 1999, as the date by which full compliance will be achieved, Taylor Vinson of this Office telephoned Larry Fetter of your company on July 30, 1999, for a clarification. We learned that the vehicles for which exemption is sought are model M8A and M9D Mobil Street Sweepers that Athey has manufactured from March 1, 1999, to date, and which have already been sold, without antilock brake systems. Thus, it appears that your company may be in violation of 49 USC 30112(a) for manufacturing and selling nonconforming vehicles. Athey may also be in violation of 49 USC 30115 if it certified that the vehicles complied with all applicable Federal motor vehicle safety standards (or if it failed to affix any certification at all).

The exemption authority under which you applied, 49 USC 30113 implemented by 49 CFR Part 555, is prospective in nature, allowing acts that are otherwise prohibited by 49 USC 30112(a), such as manufacturing and selling noncomplying motor vehicles. We have no authority to excuse violations of 49 USC 30112(a)that have already occurred.

When a manufacturer determines that there is a noncompliance in its product, it is required to take immediate steps to notify the National Highway Traffic Safety Administration formally by following the procedures set forth in 49 CFR Part 573. Athey must follow this procedure now with respect to the sweepers manufactured since March 1, 1999. Athey is then required to notify dealers and purchasers pursuant to 49 CFR Part 577, and to formulate a remedy for the noncompliance. The three statutory remedies are repair of the noncompliance (by retrofit in this instance), repurchase of the vehicle, or replacement with a conforming equivalent. With respect to the Athey sweepers, "repair" could entail governing the maximum speed from 50 mph to 33 mph or less, the speed at which an antilock system is required.

However, we do have authority to exempt a manufacturer from the notification and remedy requirements upon finding that the noncompliance is inconsequential to motor vehicle safety. You may file an inconsequentiality application by following the procedures set forth in 49 CFR Part 556. Petitions under Part 556 should be submitted not later than 30 days after a company notifies the agency under Part 573 that a noncompliance exists.

Unlike the granting of a Part 555 petition, the granting of a Part 556 petition does not allow you to continue to manufacture and sell a nonconforming motor vehicle; that is allowable only under a Part 555 exemption decision. This means that Athey may no longer manufacture and sell the two models of noncompliant vehicles in the United States until they fully conform to Standard No. 105. In addition, the granting of a Part 556 petition does not cure the original violations of Sec. 30112(a) and we may still impose a civil penalty because of them. The only effect of a Part 556 grant is to excuse a manufacturer from notifying and remedying the noncompliance.

Please inform us whether Athey wishes to withdraw its Part 555 petition or whether it would like us to consider it further. Athey could continue to manufacture, but not sell or deliver, noncompliant street sweepers in the interim period. Were the petition granted, the vehicles could then legally be certified as exempted and sold in the United States. However, we would not anticipate a decision until sometime in November 1999. If you wish us to consider the petition further, please supply arguments why an exemption would be in the public interest and consistent with the objectives of motor vehicle safety. This information is required by 49 CFR 555.5, but was lacking in your petition.

In summary, because of Athey's apparent noncompliance with Standard No. 105, it must file a notification document with us (part 573) and follow that with the form it will use in notifying other persons (part 577). Regarding vehicles produced from March 1, 1999, until now, Athey may file, if it wishes, a request to be excused from the requirements to notify dealers and purchasers and to remedy the noncompliance on the grounds of inconsequentiality (part 556). Regarding future production, if Athey wishes further consideration of its previously-filed part 555 temporary exemption petition, it should notify us and supplement the petition with public interest and safety arguments.

Taylor Vinson may be reached at 202-366-5263 if you have further questions on this matter.

Sincerely,
Frank Seales, Jr.
Chief Counsel
NCC-20 ZTVinson:mar:7/30/99:62992;OCC 20393
cc: Ncc-01 Subj/Chron No interp