ID: nht91-7.26

DATE: December 3, 1991

FROM: Paul Jackson Rice -- Chief Counsel, NHTSA

TO: Matthew J. Plache -- Esq., Gardner, Carton & Douglas

TITLE: None

ATTACHMT: Attached to letter 10-17-91 from Matthew J. Plache to Paul Jackson Rice (OCC 6577)

TEXT:

This responds to your request for an opinion of whether Daihatsu America, Inc. would be in violation of Federal law, including section 108(a)(1)(A) of the National Traffic and Motor Vehicle Safety Act ("Safety Act," 15 U.S.C. S 1397(a)(1)(A)), if it were to sell Daihatsu HIJET vehicles in accordance with specifications contained in a recent Request for Bid issued by the City of Los Angeles. According to your letter, HIJETS are general purpose off-road utility vehicles that are not intended for use on the public roads, streets or highways and, as such, do not comply with Federal motor vehicle safety standards. The City of Los Angeles Request for Bid, among other things, specifically required vehicles that are capable of being registered for street use in California and required the contractor to apply to register the vehicles and obtain license plates for them.

As discussed below, it is our opinion that it would be a violation of section 108(a)(1)(A) for a manufacturer or dealer to knowingly sell or offer to sell a HIJET vehicle to a customer for use on the public roads, streets or highways. A Request for Bid containing provisions similar to those set forth by the City of Los Angeles would indicate that the customer intends such use of the vehicle.

By way of background information, the issue of whether vehicles such as HIJETs are considered motor vehicles under the Safety Act was addressed by NHTSA in an October 31, 1988 interpretation letter addressed to Mr. Hiroshi Kato of Mitsubishi. That letter addressed the Mitsubishi SH27 lightweight industrial truck, which we understand, and you state, is very similar to the Daihatsu HIJET. At that time, Mitsubishi was considering whether to import the SH27.

In addressing the SH27, NHTSA noted that section 102(3) of the Safety Act (15 U.S.C. 1391(3)) defines a "motor vehicle" as "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." The agency has interpreted this language as follows. Vehicles that are equipped with tracks or are otherwise incapable of highway travel are plainly not motor vehicles. Further, vehicles designed and sold SOLELY for off-road use (e.g., airport runway vehicles and underground mining devices) are not considered motor vehicles, even though they may be operationally capable of highway travel. NHTSA has also concluded that vehicles that have an abnormal body configuration that readily distinguishes them from other highway vehicles AND a maximum speed of 20 miles per hour (mph) are not considered motor vehicles.

On the other hand, vehicles that use the public highways on a necessary

and recurring basis are motor vehicles. For instance, a utility vehicle like the Jeep is plainly a motor vehicle, even though it is 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, then NHTSA has interpreted the vehicle to be a "motor vehicle." Further, the agency has determined that a vehicle such as a dune buggy is a motor vehicle if it is readily usable on the public roads and is in fact used on the public roads by a substantial number of owners, regardless of the manufacturer's stated intent regarding the terrain on which the vehicle is to be operated.

In addressing the SH27, NHTSA noted that the vehicle was not easily classified under these groupings. On the one hand, it has a body configuration nearly identical to standard trucks, can obtain a maximum speed of approximately 25 mph, and could be registered for use on the highways of several foreign countries. These factors suggested that the vehicle should be classified as a motor vehicle. On the other hand, Mitsubishi stated that the vehicle was intended to be used only for off-road applications, that it would be advertised and promoted for off-road purposes only, and that it would contain four warning labels stating "Warning: Off Road Use Only." These factors suggested that the vehicle should not be classified as a motor vehicle.

In instances where the agency is asked whether a vehicle is a motor vehicle when it has both off-road and on-road operating capabilities, and about which there is little or no evidence about the extent of the vehicle's on-road use, the agency has applied five factors in offering its advice. These factors are:

1. Whether States or foreign countries have permitted or are likely to permit the vehicle to be registered for on-road use.

2. Whether the vehicle is or will be advertised for use on-road as well as off-road, or whether it is or will be advertised exclusively for off-road use.

3. Whether the vehicle's manufacturer or dealers will assist vehicle purchasers in obtaining certificates of origin or title documents to register the vehicle for on-road use.

4. Whether the vehicle is or will be sold by dealers also selling vehicles that are classified as motor vehicles.

5. Whether the vehicle has or will have affixed to it a warning label stating that the vehicle is not intended for use on the public roads.

Based on the representations in Mitsubishi's letter, NHTSA concluded that the SH27 did not appear to be a motor vehicle under the Safety Act. In addition to the other factors noted above which suggested that the SH27 should not be considered a motor vehicle, Mitsubishi had stated that its dealers would be instructed that the vehicle was to be used solely for off-road purposes-and that no assistance should be given to obtain a title for the vehicle or to register the vehicle in this country. NHTSA stated, however, that it would reexamine its conclusion if it learned,

for example, that the vehicle was in fact used on the public roads by a substantial number of its owners.

With this background information in mind, I will now address your question whether Daihatsu America, Inc. would be in violation of Federal law, including section 108(a)(1) of the Safety Act, if it were to sell HIJET vehicles in Accordance with City of Los Angeles bid specifications that require vehicles that are capable of being registered for street use in California and require the contractor to apply to register the vehicles and obtain license plates for them. Section 108(a)(1)(A) reads as follows:

No person shall --

(A) manufacture for sale, sell, offer for sale, or introduce or deliver for 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 section 114 . . . .

It is our opinion that it would be a violation of this section for a manufacturer or dealer to knowingly sell or offer to sell a HIJET vehicle (which does not comply with Federal motor vehicle safety standards) to a customer for use on the public roads, streets or highways. The reason for this is that the only possible argument that a HIJET vehicle is not a motor vehicle is that it is intended solely for off-road use. The knowing sale to a customer for use on the public roads, streets or highways would nullify this possible argument. Moreover, a Request for Bid containing provisions requiring vehicles that are capable of being registered for street use in California and requiring the contractor to apply to register the vehicles and obtain license plates for them demonstrates that the customer intends such use of the vehicle.

Further, such action by Daihatsu or its dealers would demonstrate that HIJETs should be considered motor vehicles under the Safety Act and subject to Federal motor vehicle safety standards. I note that NHTSA's October 31, 1988 opinion that the similar Mitsubishi SH27 would not be considered a motor vehicle under the Safety Act was premised on certain representations by Mitsubishi. The knowing sale of such a vehicle to a customer for use on the public roads, streets or highways would be inconsistent with the representation that the vehicle was intended solely for off-road use. I also note that the provision in the City of Los Angeles Request for Bid requiring the contractor to apply to register the vehicle and obtain license plates for them is inconsistent with one of the specific understandings set forth in that opinion.

You stated that Daihatsu is concerned about this matter because it has recently received a number of similar solicitations for HIJET-like vehicles which could be interpreted as solicitations for on-road vehicles. You stated that because of its concerns about potential violations of Federal law, Daihatsu has refrained from submitting a bid in accordance with the City of Los Angeles request. You also expressed concern that

other suppliers of similar vehicles apparently do not share Daihatsu's concern and indicated that the Los Angeles contract was recently awarded to a supplier of the Mitsubishi SH27. Please be advised that we are referring your allegations to our Office of Enforcement to determine whether there has been a violation of section 108(a)(1)(A) of the Safety Act.

With respect to Daihatsu, I note that the receipt of a number of such solicitations may suggest a general perception that the HIJET is appropriate for on-road use. NHTSA has determined that a vehicle is a motor vehicle if it is readily usable on the public roads and is in fact used on the public roads by a substantial number of owners, regardless of the manufacturer's stated intent regarding appropriate use. Thus, if Daihatsu wishes to continue to classify the HIJET as a non-motor-vehicle, it should ensure that its customers do not plan to use them for on-road use.

I hope this information is helpful. If you have any further questions or need some additional information on this topic, please feel free to contact Marvin Shaw of my staff at this address or by telephone at (202) 366-2992.

ID: nht91-7.27

DATE: December 3, 1991

FROM: Hal Balzak

TO: NHTSA, U.S. DOT

TITLE: None

ATTACHMT: Attached to letter dated 6/11/92 from Paul J. Rice to Hal Balzak (A39; Std. 201; VSA 108(a)(2)(A))

TEXT:

I recently received and reviewed a copy of your Motor Vehicle Safety Standard No. 201. To facilitate my more complete understanding, I need your clarification of two issues. Please forward your response to the following questions.

Does your Standard No. 201 apply to:

o Passenger cars manufactured between January 1, 1968 and September 1, 1981?

o Instrument panels manufactured for replacement of units damaged by collision, exposure to sunlight, etc.?

Your prompt response will be greatly appreciated.

ID: nht91-7.28

DATE: December 3, 1991

FROM: Michael H. Dunn -- Vice President, Marketing, Micho Industries

TO: Paul Jackson Rice - Chief Counsel, U.S. Department of Transportation, NHTSA

COPYEE: M. Hecker; C. Miller; J. Amabile; R. Rogers

TITLE: Re: R-Bar Occupant Restraint System

TEXT: Thank you for your letter of November 29, 1991, advising us of apparent mis-representations, relative to NHTSA's position with respect to the R-Bar (in two newspaper articles), and I wish to assure you that it was not our intent and that corrective action will be taken immediately within our sales organization.

We understand that the NHTSA DOES NOT PROVIDE APPROVALS OF MOTOR VEHICLE EQUIPMENT and will advise our personnel to immediately refrain from using any such connotations.

Again, we appreciate your comments and for bringing this matter to our attention.

ID: nht91-7.29

DATE: December 4, 1991

FROM: Paul Jackson Rice -- Chief Counsel, NHTSA

TO: Michael D. Incorvaia -- Manufacturing Engineering Manager, Wagner Lighting

TITLE: None

ATTACHMT: Attached to letter dated 11-12-91 from Paul Jackson Rice to Michael D. Incorvaia (Std. 102); Also attached to letter dated 7-3-91 from Michael D. Incorvaia to NHTSA Office of Chief Counsel

TEXT:

This responds to your telephone call to Taylor Vinson of this Office on November 21, 1991, in which you pointed out that our letter to you of November 12, 1991, appeared to conflict with paragraph S5.5.6 of Standard No. 108.

You had asked whether Standard No. 108's requirement for an outage indication for turn signal lamps would be met by a new design developed by your company. Our letter of November 12 informed you that motor vehicles must now be manufactured to meet either SAE Standard J588 NOV84, Turn Signal Lamps for Use on Motor Vehicles Less Than 2032 mm in Overall Width, or SAE Standard J1395 APR95, Turn Signal Lamps for Use on Motor Vehicles 2032 mm or More in Overall Width, and that the outage indication requirement of the previously effective SAE Standard J588e was not adopted in either of the SAE standards. Therefore, under Standard No. 108, Wagner Electric was free to adopt such change in flash rate as its new design may call for.

Your telephone call pointed out that paragraph S5.5.6 of Standard No. 108 continues to require, in pertinent part, that "Failure of one or more turn signal lamps to operate shall be indicated in accordance with SAE Standard J588e, Turn Signal Lamps, September 1970 . . . ." That is correct, and I regret that you were misinformed on this point. Paragraph 4.5 of SAE Standard J588e states, in pertinent part, that "failure of one or more turn signal lamps to operate should be indicated by . . . a significant change in the flashing rate of the illuminated indicator." Electronic flashers available today provide a "significant change" in flash rate by doubling it as an outage indication. Wagner Lighting has developed a lamp outage indication that will remain within the performance parameters of Standard No. 108, but provide an outage flash rate that appears to be slightly less than 50% greater than that of normal operation. However, there will be "a recognized change in flashing rate." You have asked whether these changes may be regarded as "significant" within the meaning of SAE J588e.

The agency has never before addressed this provision in SAE J588e. The provision of an outage rate that is twice that of normal flasher performance represents industry's interpretation of the word "significant", and not NHTSA's. The intent of paragraph 4.5 is to call the attention of the vehicle operator to the failure of a signal lamp to operate. You have represented that the change in flash rate in the Wagner design is one that can be "recognized." Assuming that this is true then the change in flash rate can be viewed as one that is "significant" within

the meaning of SAE J588e.

However, perceiving that a change in flash rates has occurred, and understanding its meaning are different matters. If a double flash rate has been the industry norm, one to which motorists have become accustomed, the meaning of a flash rate that differs from normal operation but is less than double that of ordinary operation might not be readily apparent to the vehicle operator. Therefore, it might be in the interest of safety for operator's manuals and flasher packages to indicate the flash rates that will indicate normal and outage operation.

ID: nht91-7.3

DATE: November 7, 1991

FROM: Takashi Odaira -- Chief Representative, Emission & Safety, Isuzu

TO: P. J. Rice -- Chief Counsel, NHTSA

COPYEE: Mr. Sakai; Mr. Watanabe

TITLE: Test Conditions - Side Impact (FMVSS 214)

ATTACHMT: Attached to letter dated 1/14/92 from Paul Jackson Rice to Takashi Odaira (A39; Std. 214)

TEXT:

The purpose of this letter is to seek your agency's interpretation about the test conditions specified in FMVSS 214, Side Impact Protection.

S3. (b), (c) and (d) of FMVSS 214 specify passenger cars whose rear seating areas are so small that the rear seat requirements do not apply.

However, when such passenger cars are subjected to dynamic side impact test, is it necessary to place a test dummy on their rear seating positions?

I would appreciate receiving your quick response to this question.

ID: nht91-7.30

DATE: December 4, 1991

FROM: Paul Jackson Rice -- Chief Counsel, NHTSA

TO: Darrell E. Lischynski -- P.Eng., Project Manager, Energy and Processing, Prairie Agricultural Machinery Institute

TITLE: None

ATTACHMT: Attached to letter dated 10-3-91 from Darrell E. Lischynski to Mary Versailles (OCC 6562)

TEXT:

This responds to your letter of October 3, 1991 concerning Calmar Industries' Seat Lift Kit for Ford Supercab trucks. As described by you, the "Seat Lift Kit is an attachment to raise the rear bench seat in Ford Supercab trucks. The kit does not alter the factory seat, and uses the factory seat belts. However, the seat mounts are changed, and an extension is provided to raise the seat belt attachment point." You asked which safety standards this kit must meet.

The National Highway Traffic Safety Administration has issued one safety standard that applies to seats, Standard No. 207 Seating Systems, and the following safety standards that apply to; safety belts: Standard No. 208, Occupant Crash Protection, Standard No. 209, Seat Belt Assemblies, and Standard No. 210, Seat Belt Assembly Anchorages. All safety belts sold in the United States must be certified as complying with Standard No. 209, regardless of whether the belts are installed as original equipment in a motor vehicle or sold as a replacement part. However, since you indicate that the kit uses the factory-installed safety belts, it does not appear that you need to be concerned with this standard.

Since Standard No. 207, Standard No. 208 and Standard No. 210 apply only to new vehicles, they are called vehicle standards. The National Traffic and Motor Vehicle Safety Act specifies that vehicles must conform with all applicable safety standards up until the first purchase for purposes other than resale. Therefore, if the seat lift kit is installed in a truck before its sale to its first purchaser, the vehicle with the lift kit installed must conform to these standards.

After the first purchase, the vehicle is no longer required by Federal law to conform with all safety standards. However, section 108(a)(2)(A) of the Safety Act provides as follows:

No manufacturer, distributor, dealer, or motor vehicle repair business shall knowingly render inoperative, in whole or part, any device or element of design installed on or in a motor vehicle or item of motor vehicle equipment in compliance with an applicable Federal motor vehicle safety standard . . . .

In order to avoid violating this provision, a manufacturer, dealer, distributor, or repair business which installed the lift kit would need to ensure, by carefully comparing the lift kit and its planned installation with the requirements of relevant safety standards, that such installation enables the vehicle to continue to comply with all applicable safety standards. Violations of S108(a)(2)(A) are punishable by civil fines of

up to $1,000 per violation. I note that section 108(a)(2)(A) does not affect modifications made by vehicle owners to their own vehicles.

I hope you find this information helpful. If you have further questions, please contact Mary Versailles of my staff at this address or by telephone at (202) 366-2992.

ID: nht91-7.31

DATE: December 5, 1991

FROM: Paul Jackson Rice -- Chief Counsel, NHTSA; (Signature by Steve Wood)

TO: Gene Byrd -- Legris Incorporated

TITLE: None

ATTACHMT: Attached to letter dated 9-23-91 from Gene Byrd to Vernon Bloom (OCC 6551)

TEXT:

This responds to your September 23, 1991 letter asking about the air pressure requirement specified in S7.3.8 of Standard 106, Brake Hoses. Your letter has been referred to my office for reply.

Paragraph S7.3.8 states that an air brake hose assembly shall contain air pressure of 200 psi for 5 minutes without loss of more than 5 psi. You ask whether Standard 106 specifies the length of the hose for an assembly tested to S7.3.8. The answer is no; the standard does not have a generic specification for hose length. Instead, each brake hose assembly is required to meet this requirement as manufactured and sold.

For purposes of compliance testing, NHTSA obtains a brake hose assembly specimen by purchasing it on the market or directly from the manufacturer. The length of the hose might vary from assembly to assembly, depending on the particular configuration of an assembly. The assembly is tested as sold to obtain performance results that indicate the assembly's real world performance.

While S7.3.8 is a performance requirement for assemblies, we understand that your company (an end fitting manufacturer) seeks to ensure that an assembly made with your fitting will not fail to meet S7.3.8 due to the fitting. Since an assembly is tested to S7.3.8 in the configuration in which it is sold, you could test to the requirement using the length of hose that will be used with your fitting. Legris might be able to avoid duplicative tests by conducting "worst case" testing, such as tests using a fitting with a hose of a length most likely to exhibit an excessive loss of air pressure.

Please contact us if you have further questions.

ID: nht91-7.32

DATE: December 5, 1991

FROM: John H. Heinrich -- District Director, U.S. Customs Service, Department of Treasury; Kathleen M. Tobin -- Acting Director, Fines, Penalties & Forfeitures, U.S. Customs Service, DOT; Signature illegible

TO: Office of Chief Counsel, DOT

TITLE: None

ATTACHMT: Attached to letter dated 1/9/92 from Paul Jackson Rice to John H. Heinrich (A39; Std. 211)

TEXT:

Enclosed find a petition for relief from the forfeiture of 200 Spinner Wheel Nuts seized by this service on October 8, 1991 as violative of Title 49, Code of Federal Regulations, Part 571.211.

While thememorandum of November 13, 1991 from the importer to his broker and the broker's November 18, 1991 petition stress safety considerations and the need to "replace" worn parts, the importer's own parts list (page 26) refers to:

"....conversion kits...designed to CONVERT your disc wheeled TD or TF to wire wheels...These kits enhance the appearance of any TD and are identical to the original factory OPTION for the TF" (underlines added).

The petitioner expresses the opinion that these "imported spinners" should be exempt from any general DOT safety regulation.

Please provide us with your recommendation within 30 days.

ID: nht91-7.33

DATE: December 5,1991

FROM: Harvey D. Benson -- Chief Engineer, Landoll Corporation

TO: Richard Carter -- Office of Vehicle Safety Standards, NHTSA

TITLE: None

ATTACHMT: Attached to letter dated 2/3/92 from Paul Jackson Rice to Harvey D. Benson (A39; Std. 121)

TEXT:

I need answers for two questions:

1. Is a HEAVY HAULER TRAILER required to have spring brades? We manufacture tandem and triple axle trailers with capacities up to 12O,OOO GVWR which have load carrying decks less than 40 inches above the ground. Our understanding of 49 CFR Ch V, 571.121 is that spring brakes are not required but there may be other regulations which apply.

I have had customers call stating that they were ticketed for not having spring brakes. I need a definitive statement referencing specific regulations to answer this question.

2. What are the requirements for bulkhead (cab protection) on truck chassis beds? We manufacture slide back beds mounted on single and tandem axle truck chassis. I have not been able to find requirements as to size and impact capacity for cab protecting bulkheads.

ID: nht91-7.34

DATE: December 6, 1991

FROM: Paul Jackson Rice -- Chief Counsel, NHTSA

TO: Michael E. Kastner -- Director of Government Relations, National Truck Equipment Association

TITLE: None

ATTACHMT: Attached to letter dated 9-4-91 from Michael E. Kastner to Paul J. Rice (OCC 6447)

TEXT:

This responds to your letter of September 4, 1991, asking whether an altered vehicle label must be added under the following circumstances.

An NTEA member receives a truck which is certified as a completed vehicle. This vehicle has not yet been titled or registered for use in any state. The NTEA member then installs a piece of equipment. This piece of equipment would not be considered readily attachable, nor would this equipment modify the completed vehicle's weight ratings. Both the completed truck manufacturer and the equipment manufacturer have stated that installation of this equipment would not affect compliance with any federal motor vehicle safety standard.

If the modification you describe is performed prior to the first purchase in good faith of the vehicle for purposes other than resale, the answer to your question is yes. A person is considered an alterer if (1) they alter the vehicle in any manner "other than by the addition, substitution, or removal of readily attachable components ... or minor finishing operations," or (2) they alter "the vehicle is such a manner that its stated weight ratings are no longer valid." Since the conditions you describe involve equipment which is not readily attachable, the NTEA member would be considered an alterer.

If considered an alterer, the NTEA member would be subject to the certification requirements of 49 CFR S567.7. These requirements include provisions that the alterer supplement the existing manufacturer certification label, which must remain on the vehicle, by affixing an additional label. The label must state that the vehicle as altered conforms to all applicable Federal motor vehicle safety standards. The label would also state the alterer and the month and the year in which the alterations were completed.

If the modification you describe is performed after the first purchase in good faith of the vehicle for purposes other than resale, the NTEA member would not be considered an alterer and an alteration label would not have to be attached. Under these conditions, the only provision in Federal law that affects the vehicle's continuing compliance with applicable safety standards is set forth in section 108(a)(2)(A) of the Safety Act (15 U.S.C. 1397(a)(2)(A)). That section provides:

No manufacturer, distributor, dealer, or motor vehicle repair business shall knowingly render inoperative, in whole or in part, any device or element of design installed on or in a motor vehicle ... in compliance with an applicable Federal motor vehicle safety standard.

In general, this "render inoperative" provision would require any of these named entities to ensure that any additional equipment installed in a vehicle would not negatively affect the compliance of any component or design on the vehicle with applicable safety standards. Violations of S108(a)(2)(A) are punishable by civil fines up to $1,000 per violation.

I hope this information is helpful. If you have further questions, please contact Mary Versailles of my staff at this address or my telephone at (202) 366-2992.