ID: Evans_10-005739_108

ID: FARRTHFT.ETL

The Honorable Sam Farr
United States House of Representatives
100 West Alisal
P. O. Box 145
Salinas, CA 93902

Dear Congressman Farr:

Your letter to the United States Deparment of Transportation ("DOT") requesting information concerning laws and regulations applicable to car alarms has been referred to the National Highway Traffic Safety Administration ("NHTSA"), an agency within DOT, for response. Your letter refers to a request by your constituent, Ms. Merrill Leffmann of Soquel, California, for information on laws and regulations in this area, particularly those that might govern the volume and duration of the alarms.

NHTSA does not administer any Federal statutes that directly regulate the design or performance of car alarms, nor has it promulgated any regulations that seek to do so. The only regulation promulgated by this agency that refers in any way to the subject of car alarms is 49 CFR Part 543, Exemption from Vehicle Theft Prevention Standard. The Vehicle Theft Prevention Standard, 49 CFR Part 541, was promulgated to implement 49 U.S.C. 33102 and 33103. As Congress directed, the theft standard implements this goal by establishing a "performance standard for identifying major parts of new motor vehicles and major replacement parts by inscribing or affixing numbers or symbols on these parts." 49 U.S.C. 33101(11). It does not require the installation of alarm systems in vehicles, nor does it in any way regulate the performance or other characteristics of such systems.

In 49 CFR Part 543, NHTSA implemented the statutory provision authorizing an exemption from the Theft Standard for vehicle lines equipped with an antitheft device as standard equipment. 49 U.S.C. 33106. The only requirements Congress specified for antitheft devices to qualify for this exemption were: that the device must be in addition to the theft devices required by Federal Motor Vehicle Safety Standard No. 114 (49 CFR 114);

that it must not use a signalling device reserved by state law for use on police, emergency or official vehicles or schoolbuses; and that the vehicle manufacturer must believe that it is capable of reducing or deterring theft. 49 U.S.C. 33106(a)(1).

Likewise, Part 543 does not specify how the antitheft device is to perform or be designed. Instead, it requires a manufacturer applying for an exemption to provide information on how the device is activated and functions in several specified areas: 1) facilitating or encouraging activation by motorists; 2) attracting attention to unauthorized entry; 3) preventing defeat or circumvention of the device by unauthorized persons; 4) preventing operation of the vehicle which an unauthorized person has entered by means other than a key; and 5) ensuring reliability and durability of the device. 49 CFR 543.6(a)(3). The agency then uses the information provided about these functions to decide whether the system will be sufficiently effective in deterring theft to warrant an exemption from parts marking. The regulation does not specify how many of these functions the system must be able to perform, that the system must be capable of performing all of these functions, or how well it must perform these functions. I have enclosed a copy of the Federal theft prevention statute and regulations should you wish to pass them on to your constituent.

I must emphasize that the term "antitheft device" as used in the above statutes and regulations is not synonymous with the term "car alarm" as used in your constituent's letter. A car alarm as commonly understood is a device that emits audio and/or visual signals designed to attract attention to the fact that a theft might be in progress. On the other hand, an antitheft device qualified for exemption under Part 543 may have an "alarm" as one of its elements but is not required to. Indeed, the agency has granted exemptions under Part 543 for a number of vehicle lines equipped with systems that did not include any audible or visual "alarm" or any other means of calling attention to a possible theft.

Since your constituent's letter expressed a particular interest in the noise and duration of car alarms, you might wish to contact the Environmental Protection Agency, the agency responsible for administering Federal noise pollution laws. 42 U.S.C. 4901-4918. Its regulations are found at 40 CFR Chapter I, Parts 201-211. In addition, many localities also have codes or ordinances regulating the loudness and/or duration of noise. Your constituent may wish to contact local jurisdictions for information on their laws and regulations in this area.

I hope this information is responsive to your inquiry. If the agency can be of any further assistance, please contact the Office of Chief Counsel at 202-366-9511, or Mr. L. Robert Shelton, Associate Administrator for Safety Performance Standards at 202-366-1810.

Sincerely

John Womack

Acting Chief Counsel

Enclosures(2)

cc: Washington Office (w/Constituent letter only)

ref:580

d:5/19/96

ID: featherlite(9-15-03).mtg

Mr. Norman L. Helmke
Director of Administration
Featherlite, Inc.
P.O. Box 320
Cresco, IA 52136

Dear Mr. Helmke:

This is in reply to your letter of September 15, 2003, with regard to the reporting of property damage claims under the early warning reporting (EWR) regulation (Subpart C of 49 CFR Part 579).

You advised us that Featherlite, Inc. manufactures a wide variety of trailers, including horse and livestock trailers. You indicated that the company receives property damage claims involving injuries to horses hauled in horse trailers, but that the injuries are not caused by failed components of the trailer. You explain that the injuries, in almost every case, are caused by the actions of the horse itself. With this background you ask whether an injury to a horse, not attributable to a failed component of the trailer, is a reportable property damage claim, and, if so, what is the proper code to use.

Under 49 CFR 579.24(c), a manufacturer of 500 or more trailers per year is required to make

[s]eparate reports on the number of those property damage claims, consumer complaints, warranty claims and field reports which involve the systems and components that are specified in codes 02 through 21 in paragraph (b)(2) of this section, or a fire (code 23). . . . No reporting is necessary if the system or component involved was not specified in such codes, and the incident did not involve a fire.

Property damage is defined as physical injury to tangible property. See 49 CFR 579.4(c).

A horse is tangible property. However, based on your premise that the claim did not refer to a system or component set forth in section 579.24(b)(2) or a fire, no report is necessary under the EWR regulations. The last sentence of section 579.24(c) specifically

confirms that no reporting is necessary in this instance as does the preamble to the final rule where we stated that "we will require reporting of property damage claims only when one or more specified vehicle components or systems has been identified as giving rise to the incident or damage, or there was a fire . . . ." 67 FR 45822, 45846. Please note that in the event that a system or component referred to in Section 579.24(b)(2) was identified in the claim, you would have to report it even if it is disputed.

If you have any questions, you may call Andrew DiMarsico of this Office (202-366-5263).

Sincerely,

Jacqueline Glassman
Chief Counsel

ref:579
d.10/30/03

ID: FERBLTR.CRS

Gabriel J. Ferber, Esquire
Nesper, Ferber & DiGiacomo, LLP
501 James Audubon Drive, Suite 300
Amherst, NY 14228

Re: Superior Auto Sales, Inc.

NSA-32 RSH; RII-10/R93-017

Dear Mr. Ferber:

This is in response to your letter of August 27, 1996, to Marilynne E. Jacobs, Director of the National Highway Traffic Safety Administration's (NHTSA's) Office of Vehicle Safety Compliance (OVSC), regarding 117 vehicles that were imported from Canada by your client, Superior Auto Sales, Inc. (Superior). As described in your letter, and in prior correspondence with OVSC, these vehicles, which consisted of 1994 and 1995 Model Year Plymouth Acclaims, Dodge Spirits, and Mazda Protégés, were not equipped with automatic restraints in the front outboard passenger seating position, as required by Federal Motor Vehicle Safety Standard (FMVSS) No. 208, Occupant Crash Protection. You nevertheless contend that all of these vehicles should be deemed in compliance with that standard, with the exception of seven Mazda Protégés that are the subject of separate correspondence.

To support this contention you cite paragraph S4.1.4.1 of the standard, which provides, in relevant part:

A vehicle shall not be deemed to be in non-compliance with this standard if its manufacturer establishes that it did not know in the exercise of due care that such vehicle is not in conformity with this standard.

Your letter contends that Superior is a manufacturer within the meaning of this provision by virtue of the fact that it is a vehicle importer. Moreover, you claim that even though Superior exercised due care, it did not know that the vehicles in question did not comply with FMVSS No. 208. In support of this claim, you note that OVSC released the vehicles in question even though the conformity packages that Superior submitted for them included a vehicle identification number (VIN) deciphering chart that provided the means for the agency to ascertain that each of those vehicles was equipped with a driver side air bag and a passenger side manual seat belt.

To further support your claim that Superior did not have knowledge of the noncompliance in issue, you describe the standard as containing language "so obtuse (sic) as to defy understanding." You characterize "the complexity of the language" found in FMVSS No. 208 as "the very reason that NHTSA incorporated the 'due care' provisions of the Safety Act into the regulation." To support this contention, you cite language from the preamble of a notice of proposed rulemaking to amend the standard that was issued by NHTSA in 1985. That language states

The agency recognizes that because of the complexity of the requirements of Standard No. 208, manufacturers are concerned that the rule state that the due care provision of the National Traffic and Motor Vehicle Safety Act . . . applies to compliance with [this] standard.

50 FR 14589, 14592 (April 12, 1985). You interpret this statement as representing NHTSA's "recogni[tion] at the outset that the language of Standard 208 was so complex that mistakes in interpretation were likely to occur" and that "it would be unfair to penalize affected parties who made such mistakes notwithstanding due care." Accordingly, you assert that the vehicles that Superior "imported in the exercise of due care and without knowledge of their nonconformity must . . . be deemed to be in compliance with Standard 208."

Contrary to your interpretation, NHTSA did not incorporate the due care provision of the Safety Act into FMVSS No. 208 to relieve manufacturers from liability for noncompliances resulting from mistaken interpretations of the standard's language. The agency instead added the due care provision to address a concern expressed by manufacturers, grounded on the belief (disputed by NHTSA) that there was excessive variability in FMVSS No. 208 crash test results, that a noncompliance might be determined to exist on the basis of a single test failure, even though the vast majority of similar vehicles actually complied. NHTSA stated its intention to amend the standard to incorporate the due care provision in the final rule reinstituting the automatic restraint requirements published at 49 FR 28962 on July 17, 1984. As reflected in the enclosed excerpt from that document (at 49 FR 29006), NHTSA was motivated to add the due care language to assure manufacturers

that the agency would exercise appropriate discretion in compliance cases based on apparent failures to satisfy the performance requirements of the standard in OVSC crash tests.

We agree that Superior is a "manufacturer" within the meaning of 49 U.S.C. 30102(a)(5) because it imports motor vehicles for resale. However, the due care language in FMVSS No. 208 cannot be relied upon by registered importers (RIs) to insulate themselves from liability for importing vehicles from Canada that do not comply with the standard. To properly exercise its responsibilities, an RI must be aware of the standards that apply to each of the vehicles that it imports and conform the vehicle to those standards when necessary. The principal difference between vehicles manufactured for the U.S. and the Canadian markets is that Canadian vehicles are not required to comply with the automatic restraint requirements of FMVSS No. 208. For that reason, the only passenger cars manufactured for the Canadian market that NHTSA has determined to be eligible for importation into the United States are those manufactured before September 1, 1989, the date on which the automatic restraint requirements were extended to a manufacturer's entire passenger car production, or those manufactured after that date that are equipped with an automatic restraint system that complies with FMVSS No. 208. Before importing a vehicle from Canada manufactured on or after September 1, 1989, the RI must therefore ensure that it complies with the automatic restraint requirements in the same manner as FMVSS No. 208 allows for vehicles produced for the U.S. market on the vehicle's date of manufacture.

As a factual matter, we dispute your assertion that the operative language of FMVSS No. 208 is "complex" or "obtuse." It is clear from S4.1.4.1 of FMVSS No. 208 that the authority to manufacture vehicles with a driver's side air bag and no automatic protection on the passenger side expired as of September 1, 1993 (i.e., it did not apply to model year 1994 or newer vehicles). Even if it could not discern those requirements from the language of the standard, Superior could have made appropriate inquiry with the vehicle's manufacturer or with NHTSA. Finally, if an RI is in fact confused as to the automatic restraint requirements that pertain to any given vehicle, it could not demonstrate that it exercised due care by importing the vehicle despite that confusion.

Your letter implies that Superior was misled by OVSC's "approval" of compliance packages that it submitted for vehicles that were not equipped with required passenger side automatic restraints. The conformity statements included in those packages contained Superior's certification that those vehicles were manufactured in compliance with FMVSS No. 208. OVSC's approval of the compliance packages was predicated on that certification by Superior. OVSC cannot be charged with knowledge that the vehicles it approved for release were not equipped with required automatic restraints simply because a VIN deciphering chart that would have revealed that information was included in the compliance packages. Given the thousands of compliance packages that it must process each month, OVSC cannot be expected to decipher every VIN to ensure that the RI's certification contains no inaccuracies. It is perverse to assert that merely because OVSC did not catch Superior's false statements, Superior is excused from having made them. Moreover, in each case, Superior's false certification preceded OVSC's release of the vehicle, so that release cannot have provided any basis for Superior's actions.

Your letter further cites NHTSA and Center for Auto Safety research reports for the proposition that automatic seat belts, the devices that Superior apparently would install in the vehicles in question in the event of a recall, are less safe than the manual seat belts with which those vehicles are now equipped. In light of these reports, you contend that it would be arbitrary, capricious, and an abuse of discretion for NHTSA to order a recall. On the contrary, it would be improper for the agency not to require compliance with the existing requirements of a standard in its administration of the vehicle importation program. FMVSS No. 208 requires that passenger cars manufactured on or after September 1, 1993 be equipped with passenger side automatic restraints regardless of whether they have a driver's side air bag. This requirement was adopted in a protracted rulemaking proceeding in which the agency solicited and addressed numerous comments from the public. The requirement for automatic restraints in both front outboard seating positions is buttressed by the action of Congress in enacting the Intermodal Surface Transportation Efficiency Act of 1991, section 2508(a)(1), which mandated that FMVSS No. 208 be amended to require air bags in those locations. (See 49 U.S.C. 30127.)

Your letter requests a hearing if NHTSA believes that Superior has not established that in the exercise of due care it did not have reason to know that the vehicles it imported were not in conformity with FMVSS No. 208. We have provided you with our analysis of this issue, as presented in your letter. Based on that analysis, it is unlikely that any further discussion would alter our opinion that the due care defense is unavailable to Superior and similarly situated RIs in this circumstance. Therefore, we decline to hold the hearing you have requested.

If you have any further questions regarding this matter, please contact Coleman Sachs of my staff at 202-366-5238.

Sincerely,

John Womack

Acting Chief Counsel

Enclosure

ref:208

d:10/25/96

ID: firestonelaser-2

Michael D. Kane
Vice President, Quality Assurance
Bridgestone Americas Holding, Inc.
535 Marriott Drive
Nashville, TN 37214

Dear Mr. Kane:

This responds to your question whether laser etching of the tire identification number (TIN) date code is permitted by the tire marking and tire labeling requirements of Federal Motor Vehicle Safety Standard (FMVSS) No. 139 and 49 CFR 574.5, respectively, that go into effect on September 1, 2004. You raised these questions in an April 29, 2003 meeting with us and in a letter of the same date. As explained below, the answerto your question is "yes."

Beginning September 1, 2004, paragraph S5.5 of FMVSS No. 139, "Tire Markings," requiress that each tire must be "marked" with certain information and that "the tire identification and DOT symbol labeling must comply with part 574" of 49 CFR. With respect to the TIN in particular, S5.5.1 of FMVSS No. 139 requires that "each tire must be labeled with the tire identification number required by 49 CFR part 574 on the intended outboard side of the tire." Part 574.5 requires that "each tire manufacturer shall conspicuously labelby permanently molding into or onto the sidewall, in the manner and location specified in Figure 1, a tire identification number containing the information set forth in paragraphs (a) through (d) of this section." The TIN contains the manufacturers identification code, the tire size, an optional manufacturer code, and a 4-digit date code representing the week and year of manufacturer. In comments on the Tire Safety Information rulemaking, the Rubber Manufacturers Association (RMA) had stated that, under the new labeling requirements, molding the date code portion of the TIN on the intended outboard side of the tire would make it necessary for technicians to change the date code plate in the upper half of the tire mold on a weekly basis.

You state that Bridgestone/Firestone has been exploring the possibility of using laser technology as a means of etching the tire identification number into the tire sidewall. This process would involve a diode pumped, solid state laser beam that etches tire letters or numerals into the rubber with the required character heights and to the required character depths. You state that this technology would avoid the risk that would otherwise result from technicians having to make the weekly date code change in the top half of the tire mold. That risk has been the weekly date code change in the top half of the tire mold. That risk has been a safety concern to the tire industry. You also state that the laser etched characters, while "not molded," are permanent and that the characters are sharp, easy to read, and conform to the letter styles specified in Notes to Figure 1 of 574.5. Finally, you note that paragraph S5.5 of FMVSS No. 139 states that the tire must be "marked" with certain information, instead of "permanently molded." The latter is the language in paragraph 4.3 of FMVSS No. 109, the standard that has been largely superseded by FMVSS No. 139

As a general matter, the term "molding" does not include laser etching. However, in the context of the situation you describe, we would consider permanent laser etching of the date code portion of the TIN to be a satisfactory method of complying with paragraph S5.5 of FMVSS No. 139, so long as it occurred in-line, i.e., as part of the manufacturing process of the tire.In responding to petitions for reconsideration, we will amend the regulatory text to make it clear that this is permissible.

If you have any questions or need additional information, feel free to contact Nancy Bell of my staff at (202) 366-2992.

Sincerely,

Jacqueline Glassman
Chief Counsel

ref:109
d.5/30/03

ID: flaherty

Lt. Col. Steve Flaherty, Director
Bureau of Administrative and Support Services
Virginia State Police
P.O. Box 27472
Richmond, VA 23261-7472

Dear Col. Flaherty:

This is in reply to your recent e-mail regarding "undercover type warning lights." By this phrase, we understand you to mean the system under discussion in our letter of July 3, 2001, to Col. Massengill of the Virginia State Police (the "Massengill letter."). When activated, that system, would cause the taillamps and side marker lamps of otherwise conventional passenger cars to flash as strobe lights.

You have informed us that there is "pre-filed" legislation in the Virginia House of Delegates which would permit the use of undercover type warning lights "on fire fighting apparatus and fire department vehicles." You have further informed us that "these are all classified under state law as emergency vehicles and are entitled to use traditional type warning lights." Present Virginia law "specifically requires conformance to federal requirements." You understood the Massengill letter to restrict undercover type warning lights to law enforcement vehicles, and have asked whether state-regulated fire fighting/department vehicles be equipped with these lights and still conform to Standard No. 108.

The question is not really whether such vehicles equipped with the strobe light system would still conform to Standard No. 108; clearly they would not because they are causing lamps to flash that Standard No. 108 requires to be steady burning. The real question is whether the National Highway Traffic Safety Administration would provide the same interpretation regarding the use of strobe lights on state-regulated fire fighting/department vehicles as it had in the Massengill letter for police vehicles. And our answer is yes.

As noted in that letter, our traditional position is that we defer to the judgment of States as to the installation and use of emergency lighting devices on its vehicles. We also noted that, under Federal law (49 U.S.C. 30122), the State, as the owner of a vehicle,

may itself modify a vehicle after its purchase even if this modification results in a noncompliance with a Federal motor vehicle safety standard. With these factors in mind, we believe that a law allowing use of the strobe system on state-regulated fire fighting/department vehicles is acceptable.

The emergency vehicles discussed in the Massengill letter were not of a traditional nature. They were unmarked Ford Crown Victoria sedans identical in exterior appearance to Crown Victorias sold to the public and which were intended for sale to the public at the end of their useful life with the State Patrol. For these reasons, we developed the rationale expressed in the Massengill letter under which we could justify deferring to the judgment of the State for the use of these vehicles. Perhaps this led you to conclude that we had advised that the use of strobe lights should be restricted to law enforcement vehicles.

We contrast the Crown Victorias with fire fighting apparatus, the former often intended for undercover use, the latter, never. Thus, we surmise that fire fighting apparatus would not use strobe lights for "undercover" purposes, but as an added warning when they are endeavoring to reach a fire or other emergency site through traffic as rapidly as possible. We see no reason to question the judgment of the State in allowing strobe lights on fire vehicles, if such legislation is enacted in Virginia.

Sincerely,

Jacqueline Glassman
Chief Counsel

ref.108
d.5/2/03

ID: forda

Mr. Richard J. Kinsey
Manager, Fuel Economy
Planning & Compliance
Ford Motor Company
The American Road
Dearborn, Michigan 48121

Dear Mr. Kinsey:

This responds to your letter requesting our concurrence on a procedure for determining the domestic content and country of origin for foreign-sourced allied and outside supplier components. I apologize for the delay in our response. You stated that you would like to obtain the relevant information from your present purchasing systems rather than by soliciting the information from your foreign suppliers. You stated that both processes will result in the same information, and that you believe requiring your foreign suppliers to respond to requests for information would impose costly and unnecessary burdens on those suppliers.

We are now in the process of completing our response to several petitions for reconsideration of the final rule on domestic content labeling. Your question is sufficiently related to some of the issues raised by the petitions that we believe it should be addressed in the context of that response, rather than in a separate letter.

We realize, however, that manufacturers and suppliers have an immediate need for guidance regarding the procedures for making content determinations for the 1996 model year. In a recent letter (copy enclosed) to the American Automobile Manufacturers Association, we advised that NHTSA had decided to give manufacturers and suppliers for model year 1996 the same alternative they had last year, i.e., in lieu of following the required procedures, they may use other procedures that are expected to yield similar results. Therefore, your planned approach will not raise any concerns for model year 1996.

I hope this information has been helpful. If you have any other questions or need some additional information in this area, please contact Edward Glancy of my staff at this address or by phone at (202) 366-2992.

Sincerely,

Philip R. Recht Chief Counsel

Enclosure

ref:583 d:3/8/95

ID: FordTHINKNeighbor.CRS

Mr. James P. Vondale

Director, Automotive Safety Office
Environmental & Safety Engineering
Ford Motor Company
Fairlane Plaza South
330 Town Center Drive
Dearborn, MI 48126-2738

Dear Mr. Vondale:

This responds to your letter of August 17, 2001 to

Dr. Jeffrey W. Runge, requesting the National Highway Traffic Safety Administration (NHTSA) to approve an alternate location for placement of the certification label on the THINK Neighbor low speed vehicle.

NHTSA's regulations at 49 CFR 567.4(c) prescribe specific locations for the installation of vehicle certification labels, and provide that if none of those locations are practicable, the manufacturer may suggest an alternate location for the agency's approval. As stated in your letter and illustrated in accompanying photographs, the THINK Neighbor is not equipped with doors, and consequently lacks hinge pillars and door-latch posts. You further state that the instrument panel and the seat stanchion cover are plastic components that can be easily removed and would therefore not be permanently affixed to the vehicle. In light of these circumstances, you state that "Ford recommends attaching the label to the inside surface of the roof in the left rear corner." You contend that in this location, "[t]he label will be permanently affixed to an integral component of the structure and is easily readable without moving any part of the vehicle." You further note that "other manufacturers have utilized a similar location" for the certification label.

In specifying locations for the placement of vehicle certification labels, NHTSA's objective is to ensure that those labels may be easily read. The location that you have proposed for the THINK Neighbor would meet this objective. NHTSA therefore approves your request.

If you have any further questions regarding vehicle certification requirements, feel free to contact Coleman Sachs of my staff at 202-366-5238.

Sincerely,

John Womack
Acting Chief Counsel

ref:567
d.10/5/01

ID: FREIGHTLINER.CRS

Mr. Bob Johnson
Senior Compliance Analyst
Freightliner LLC
4747 N Channel
Portland, OR 97208-3849





Dear Mr. Johnson:

This responds to your letter of April 16, 2001, requesting the National Highway Traffic Safety Administration (NHTSA) to approve an alternate location for placement of the certification label on the new Freightliner Sprinter vehicle.

NHTSA's regulations at 49 CFR 567.4(c) prescribe specific locations for the installation of vehicle certification labels, and provide that if none of those locations are practicable, the manufacturer may suggest an alternate location for the agency's approval. Your letter states that DaimlerChrysler engineers in Germany attempted to position the label in one of the locations specified in section 567.4, but were not successful owing to the size of the label, the lack of available space to accommodate the label at some of those locations, and the presence of removable padding on the surface at other of those locations.

The alternate location for which you have requested approval is below the driver's seat on an outward facing portion of the mounting pillar. You state that the pillar is a permanent part of the vehicle's floor structure, and that at this location, the label can be easily read and is well protected from weathering and abrasion.

In specifying locations for the placement of vehicle certification labels, NHTSA's objective is to ensure that those labels may be easily read. The location that you have proposed for the new Freightliner Sprinter would meet this objective. NHTSA therefore approves your request.

If you have any further questions regarding vehicle certification requirements, feel free to contact Coleman Sachs of my staff at 202-366-5238.

Sincerely,

John Womack
Acting Chief Counsel

ref:567
d.6//21/01

ID: Full Display Mirror System 1 GM Feb 11