ID: kane.ztv

Barry C. Kane, Esq.
Miller, Johnson, Snell & Cummiskey, P.L.C.
P.O. Box 306
Grand Rapids, MI 49501-0306

Dear Mr. Kane:

This is in reply to your letters of June 9 and 10, 2003, which asked for an interpretation of terminology in 49 CFR Part 579 and Part 573. These letters were identical, with the exception noted below under the discussion of Section 579.4(d)(2). Your Part 579 questions related both to the reporting obligations under Subpart B pertaining to foreign safety campaigns, and the reporting obligations under Subpart C, the Early Warning Reporting (EWR) requirements. You wrote on behalf of "divers automotive-related clients," including "original equipment manufacturers, as well as first and second tier providers of parts and/or services."

For purposes of EWR, your clients are considered manufacturers of original equipment (OEM) and thus are covered by 49 CFR 579.27. In response to your initial inquiry, if an OEM does not receive a claim or notice of death in any quarterly reporting period, it is not required to report that fact to NHTSA.

Your next question was postulated on the assumption that section 579.27 requires OEMs to report information about injuries allegedly caused by their products. However, that is incorrect. Section 579.27 requires your clients to report "on each incident involving one or more deaths . . . that is identified in a claim . . . or in a notice . . . which notice alleges or proves that the death was caused by a possible defect in the manufacturers . . . equipment" (emphasis added) (if the incident occurred in the United States, the manufacturer must also report the number of injuries, if any). You asked for confirmation "that an incident in which a manufacturers component is involved that did not initiate the sequence of events leading to [a death] has not to be reported because such a component does not meet the definition of involving in 579.27."

We have not defined "involving" and a definition of the term is not required to respond to your question. Whether a component initiated a sequence of events that led to a death (and injury) may be a question of fact or law (e.g., proximate cause) that is not developed or resolved at the time a manufacturer receives a claim or notice about a death. Regardless, if the document received by the OEM meets the definition of "claim" or "notice" and identifies the OEMs equipment with "minimal specificity," as those three terms are defined in Section 579.4(c), the OEM must report to NHTSA in the manner prescribed by Section 579.27.

You have also asked a question about the application of Section 579.4(d)(2)s definition of identical or substantially similar motor vehicle equipment to a hypothetical situation. Equipment sold or in use outside the United States is deemed to be "identical or substantially similar" to equipment sold in the United States if the equipment has "one or more components or systems that are the same, and the component or system performs the same function" in vehicles sold in the United States (Section 579.4(d)(2)). In your hypothetical, identical fasteners would be used in an air-conditioning unit and an alternator. In your letter of June 9, you stated your belief that "`substantial similarity looks at the assembly as a whole and not to the components forming the assembly to determine the similarity unless it is the particular fastener in this example that is the rudimentary cause of the failure in one of the components." However, on June 10, you advanced a modified view of "substantial similarity" and concluded that "all these different assemblies incorporating such fasteners are substantially similar irrespective of whether the cause of the failure is another part of the assembly," and you asked whether your clients are "obliged to report all these assemblies . . . although the cause of the defect is not the fastener."

We addressed these situations in the preamble to the EWR final rule (67 FR 45822 at 45844). With respect to the view in your letter of June 9, we remarked that we read the word "equipment" both as the completed item of motor vehicle equipment and as each individual component that comprises the item. With respect to your modified view of June 10, the Motorcycle Industry Council (MIC) had asked "if the only commonality [in equipment] is a single type of fastener that neither failed nor contributed to the incident, are the components or equipment substantially similar?" We replied that the equipment incorporating the fasteners would be substantially similar for EWR purposes, "unless the claim [or notice] specifically identified a non-common component as the source of the failure" (p. 45844).

With respect to the phrase "sold or offered for sale" as it appears in the definition of "identical or substantially similar," a client has asked you "if the rule covers the situation where an automobile is manufactured outside the United States and has been privately imported by an individual consumer." It is your suggestion that "the rule does not apply to this situation," and that it "is intended to apply to manufacturers who intentionally enter the market in this country rather than low volume imports arranged by private consumers." We understand that this question relates to Smart cars, manufactured by DaimlerChrysler A.G. in Europe. That company does not sell these cars or offer them for sale in the United States, but at some future time they may be imported by a Registered Importer.

Although, as a factual matter, a Smart car sold outside the United States would be identical or substantially similar to a Smart car sold or offered for sale by a person in the United States other than its fabricating manufacturer (e.g., a Registered Importer), we do not intend the rule to impose a reporting obligation upon a manufacturer who is not marketing an identical or substantially similar vehicle in the United States. Thus, the EWR rule does not require DaimlerChrysler to report incidents of deaths outside the United States involving Smart cars, unless and until DaimlerChrysler imports the Smart car into the United States (see definition of "manufacturer," Section 579.4(c)).

You next asked "whether a supplier of parts to OEMs or Tier 1 suppliers is ever required to notify the Administration of the recall under the rule since they do not decide on or carry out a recall themselves, but solely sell their products via the OEMs/Tier 1." Part 579 does not require an OEM to notify NHTSA that a person is conducting a defect notification and remedy campaign on products that incorporate equipment which the OEMs have supplied. Defect reporting obligations arise under another regulation, 49 CFR Part 573, Defect and Noncompliance Responsibility and Reports. In some instances, these obligations apply to, or may be assumed by, OEMs (see Section 573.3).

With respect to the obligation under Section 579.5(b) to provide copies of each communication relating to a customer satisfaction campaign (as defined in Section 579.4(d) to include other terms as well) within five days after the end of each month, you suggest that "this rule only needs compliance when indeed such customer satisfaction campaigns exist." This is correct. We need not be informed that there were no customer satisfaction campaigns in the previous month. It is also your tentative view that "the campaigns need only be reported when there is "communication with two or more of those involved in the distribution chain for the assembly in the U.S." That is incorrect. If a communication is "issued to, or made available to, more than one dealer, distributor, lessor, lessee, other manufacturer, owner or purchaser, in the United States," a copy of the communication must be furnished to us. See Section 579.5(b).

Your last question is "whether we should consider additional rules, statutes, or provisions promulgated by the individual states or whether this rule supercedes individual state requirements." We are unaware of any State requirements that address the same issues as Part 579.

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

Sincerely,

Jacqueline Glassman
Chief Counsel

ref:579
d.8/8/03

ID: nht92-9.46

DATE: January 21, 1992

FROM: William H. Spain -- Touch Wood

TO: Taylor Vinson -- Legal Counsel, NHTSA

TITLE: None

ATTACHMT: Attached to letter dated 4/27/92 from Paul J. Rice to William H. Spain (A39; Std. 108)

TEXT:

We have developed a lighting device for heavy duty trucks which may or may not fall under the purview of NHTSA statues.

We have very briefly discussed this with your Mr. Britell and Mr. Cavey, who suggested that we submit the information to you.

I am attaching a description of the device and as a separate item the way we feel the statues may or may not apply to it. Please be patient and understanding as I am not a lawyer.

I want to be clear in that we are not seeking an endorsement or even an opinion as such. We do not want to put you in the position of having to make a ruling. All we ask is your initial first impression as to whether or not we might have a problem. We have spent quite a bit of time and money on this device and are to the point of manufacture. If we have a problem then we need to stop now and back away from it. We do not intend to get into an argument over it, we will let it die first. We do however think it is a needed device that is totally in harmony with the stated purpose of 571.108 and that the device will save lives.

Realizing how very busy you must be as well as needing an indication at your earliest convenience, I have tried to keep the attached as brief as possible.

Your assistance is very much appreciated and we will be looking forward to hearing from you.

AUXILIARY LIGHTING DEVICE

As you are aware on trucks both the left and right turn signal circuits are separate from the tail lamp circuit. This device uses both the left and right turn signal circuit to act as either emergency/auxiliary tail lamps or as fog lamps. When in use neither of these new functions will interfere with normal operation of the turn signals. Each function shall be described separately.

These two new functions are controlled by a normal toggle switch mounted on the vehicle dash. In the toggle switches normal position, it is off.

It is not an uncommon occurrence for a tractor/trailer to lose its tail lamps due to a circuit or wiring malfunction. A obvious contributing factor is the constant switching of trailers between trucks. When this occurs the driver's only choice on the road is to switch on his hazard flashers which is not their intended purpose and is disconcerting to other motorists. It also defeats his normal turn signal circuits.

If our toggle switch is flipped upward to a position marked (on a nameplate) "EMERG T/LMPS", then two things happen. Firstly the center of the toggle switches lever, or paddle is illuminated and glows red. This is to remind the driver that he has something on that is not normal and to remind him to turn it off when it is no longer needed. Secondly a reduced voltage is fed through both right and left rear turn signal circuits to cause both turn signal lamps to illuminate at a reduced brilliance equal to that of a normal tail lamp. If either turn signal is activated then the full voltage is fed to that particular (left or right) lamp and the lamp flashes at its normal turn signal brilliance. To an observer the net effect is the same as normal turn signal operation (which it is).

In the event of a failure of the normal tail lamps this device provides a means of normal illumination on the vehicle's trailer and allows the driver to proceed in a safe manner to a location to have the failed, regular tail lamps repaired.

Another problem with all vehicles is reduced visibility in fog. In heavy fog the only present choice is for a motorist or trucker to activate their hazard flashers for increased rear visibility. Again this practice is disconcerting and defeats the use of normal turn signals. The European countries allow and on some trucks require a rear special fog lamp of increased brilliance for use in fog.

If our switch is flipped downward to a position marked R/FOG again two things happen. First the center of the switch will illumine red. Second a higher voltage is fed through both rear turn signal circuits to cause them to burn at approximately their full brilliance. If however either turn signal is activated then that particular (right or left) side reverts to normal turn signal operation. Therefore normal turn signal operation is not defeated.

The circuitry of our device is so configured that it automatically adjusts for the particular number of turn signal lamps on a particular truck/trailer.

STATUTES

First it shoUld be noted and considered that this device is totally in harmony with the stated purpose of 571.108.

There are obviously two directions to take in considering application of 571.108 to this device. It is very likely that 571.108 does not apply to this device. This is an auxiliary device. It does not affect those items which are required by 571.108 and auxiliary devices of this nature are not addressed by 571.108.

This device in its emergency tail lamp mode would be used only upon failure of the vehicle's regular lighting system. Its effect would be no different from the driver calling a wrecker which after hooking up would place the wrecker's own emergency tail lamps upon the rear of the towed vehicle. Obviously the wrecker's portable emergency/auxiliary tail lamps do not have to comply with 571.108 although they become the towed vehicle's tail lamps. Just as obviously they are needed on the rear of the towed vehicle on a temporary basis.

This device in its rear fog lamp mode would be two auxiliary lamps on the rear which do not interfere with normal operation of either the vehicle's normal tail lamps or turn signals. For that matter all new Jaguar automobiles imported into the U.S. come with two rear fog lamps as standard.

If however the position were to be taken that this device does fall under 571.108 then it becomes more complicated. S5.1.1.11 refers to minimum candlepower for turn signal LAMPS. This does not apply as it is common practice for manufacturers to utilize a common LAMP for both tail lamp and turn signal function. Although they do this by utilizing a dual filament bulb and dual circuits, there is no section of 571.108 requiring that this particular method be used. The net effect of our device would be identical to that of a dual filament bulb/separate circuit.

As our device does not impair the operation of any lamps required by 571.108 then we are in compliance with S5.1.3.

Whereas the normal location of rear turn signal lamps on any vehicle is assumed to be in compliance with 571.108 then these exact same lamps would also be in compliance when illuminated by our device (S5.3.1.1).

it is possible that we may have to configure our circuit in such a manner that when our switch is in the up position for emergency tail lamps it wold be on whenever the vehicle's headlamps were on. (S5.5.3).

Reference S5.5.10 (a) and when the turn signal lamps are used in conjunction with our device they are wired to flash. The lamps do not however become turn signal lamps until such time as the turn signal function is selected (by the operator). Prior to that time, the circuit, filaments, lamps, etc. can be used for other purposes as they are not turn signals until activated for that function and purpose. An example of this is the use of the turn signal circuit, filaments and lamps as stop lamps on many cars. The circuit, filaments and lamps are used in stop lamp mode until they are activated as turn signals at which time the stop lamp mode is interrupted on the appropriate side and they become turn signal lamps.

ID: nht76-2.17

DATE: 12/14/76

FROM: AUTHOR UNAVAILABLE; F. Berndt; NHTSA

TO: School Bus Manufacturers Institute

TITLE: FMVSS INTERPRETATION

TEXT: This is in response to your letter of November 2, 1976, in which you ask for an interpretation of the term "absorbed" as it is used in Standard No. 222, School Bus Passenger Seating and Crash Protection. Further, you request that the NHTSA withdraw its earlier interpretation of the same term made on July 30, 1976, to Thomas Built Buses.

In your letter, you outline data showing that a seat may meet the energy absorbtion requirements of S5.1.3 when recoil energy is included, while failing those same requirements when recoil energy is subtracted from the total energy. You further argue that the NHTSA interpretation of July 30, 1976, which explained the subtraction of recoil energy, is at variance with the wording of the standard, because the standard does not explicitly require the subtraction of recoil energy and speaks only to the application of force upon the seat. Moreover, you suggest that plotting the recoil energy results in insufficient area under the force/deflection curve to meet S5.1.3. For these reasons, you request that the term "absorbed" be defined as the total energy received by the seat without subtracting energy that is returned through recoil.

The NHTSA declines to adopt the interpretation that you suggest. The dictionary definition of the term "absorbed" is "to receive without recoil." This definition, when applied to energy absorbed by a seat, contemplates the subtraction of recoil energy in the computation of absorbed energy. The NHTSA intentionally chose the term "absorbed" to denote exactly this meaning. Therefore, according to the common usage of the term "absorbed," the standard does require the subtraction of recoil energy even though those express words are never used.

Your assertion that plotting the recoil energy results in a force/deflection curve that falls within the prohibited zones indicates a misunderstanding of the force/deflection zone requirements. The force deflection zone requirements (S5.1.3(a), S5.1.3(b), S5.1.4(a), and S5.1.4(b)) prescribe limits within which the seats must perform only during the force application phase of the test procedure.

SINCERELY,

SCHOOL BUS MANUFACTURERS INSTITUTE

November 2, 1976

Frank A. Berndt Office of Chief Counsel National Highway Traffic Safety Administration

On July 30, 1976, the National Highway Traffic Safety Administration issued an interpretation to Thomas Built Buses, Inc. (Item 1) defining the term "energy absorbed in deflecting the seat back" as it relates to the new FMVSS 222 School Bus Passenger Seating (Item 2). The Agency's definition of this term is based on the concept that the absorbed energy equals the amount of energy received less the energy associated with recoil.

The School Bus Manufacturers Institute representing the six major manufacturers of school buses takes exception to this terminology being applied to the present configuration of FMVSS 222. We do not disagree with the semantics but we do believe that there is a definite conflict between the definitions interpretation and the test procedures outlined within the standard.

Our disagreement is not just a recent development. As early as September 1974 through discussions with National Highway Traffic Safety Administration Legal and Engineering, the SBMI indicated that a seat demonstrating purely elastic properties could be constructed to meet the then proposed FMVSS 222.

On a number of occasions since that time, this question has been reviewed by National Highway Traffic Safety Administration personnel. Nevertheless, on January 22, 1976, the final draft of FMVSS 222 was issued without any reference to rebound or recoil adjustments to the test procedure.

Based on the FMVSS 222 test criteria, the SBMI members have designed, developed and tested an entirely new generation of school bus seats. The Thomas Interpretation drastically changes the test criteria used in compliance calculation.

FMVSS 222 Section S5.1.3 states:

Seat performance forward. When a school bus passenger seat that has another seat behind it is subjected to the application of force as specified in S5.1.3.1 and S5.1.3.2 and subsequently, the application of additional force to the seat back as specified in S.5.1.3.3 and S5.1.3.4:

(a) The seat back force/deflection curve shall fall within the zone specified in Figure 1;

(b) Seat back deflection shall not exceed 14 inches; (for determination of (a) and (b) the force/deflection curve describes only the force applied through the upper loading bar, and only the forward travel of the pivot attachment point of the upper loading bar, measured from the point at which the initial application of 10 pounds of force is attained.)

(c) The seat shall not deflect by an amount such that any part of the seat moves to within 4 inches of any part of another school bus passenger seat or restraining barrier in its originally installed position;

(d) The seat shall not separate from the vehicle at any attachment point; and

(e) Seat components shall not separate at any attachment point.

In order that we may more clearly define our objection to the Thomas Interpretation, a typical force/deflection seat test is enclosed (Item 3).

The shaded areas above and below the acceptable zone indicate a seat that is too rigid (upper shaded zone) or too limber (lower shaded zone) to manage the accident induced impacts. Therefore, the force/deflection characteristics properly designed seat will fall within the unshaded area.

Line A plotted on the force deflection curve (Item 3) indicates the amount of seat back deflection for a given loading.

Prior to the Thomas Interpretation line A would be a satisfactory test.

S5.1.3

(a) The curve fell within the specified zone

(b) The seat back deflection did not exceed 14"

(c) The seat did not encroach to within 4" of an adjacent seat

(d) The seat did not separate from the vehicle

(e) The seat components did not separate

The area below line A was above the minimums set by the National Highway Traffic Safety Administration.

Should the Thomas Interpretation be applied to this same seat test, the results are entirely different (Item 4). The new interpretation will require that the recoil of the seat after testing be measured and plotted on the graph-line B.

S5.1.3

(a) The curve fell within the shaded area

The area included within lines "A" and "B" is less than the limit allowed by the National Highway Traffic Safety Administration.

This example outlines one area of conflict between FMVSS 222 and the Thomas Interpretation. FMVSS 222 makes no mention of measuring and plotting rebound, as a matter of fact the test criteria requires only forward motion of the loading bar during the forward test and rearward motion during the rearward test.

The SMBI is now to the point of product verification based on the final draft of FMVSS 222. To revise the test levels at this late date will place an unjust economic burden on this industry.

If it is the Agency's intention to have school bus seats that "eat up" a given amount of energy during a crash, then this requirement should be spelled out within the standard and not within a private interpretation.

Because of the wide reaching effects of this interpretation, we ask that the National Highway Traffic Safety Administration withdraw the Thomas Interpretation and in its place introduce a proposal to revise FMVSS 222 to include the Agency's definition of energy absorption.

If we can be of any assistance in clarifying this matter please feel free to contact me.

Byron A. Crampton Manager of Engineering Services

ITEM 2

(Illegible Line) and Crash Protection FMVSS 222 Effective April 1, 1977

(Regulation Omitted)

ID: nht80-3.37

DATE: 08/20/80

FROM: AUTHOR UNAVAILABLE; Ralph J. Hitchcock; NHTSA

TO: James Monaghan

TITLE: FMVSS INTERPRETATION

TEXT: This is in response to your letter of July 18, 1980, regarding your Simplified Passenger Air Bag.

We have noted the changes in your patent. If, as you say, the pads are automatically rotated into place when the occupant gets into the vehicle and closes the door and protection is provided without the occupant having to take any action, your system would be considered to be automatic (passive) within the meaning of Federal Motor Vehicle Safety Standard No. 208, Occupant Crash Protection.

I am placing a copy of your letter in our public docket. Thank you for your continued interest in automobile safety.

Sincerely,

ATTACH.

SIMPLIFIED PASSENGER AIRBAG

The attached copy of an article from the Miami Herald of May 12, 1980, entitled "Air Bags Give Questionable Protection," draws attention to the urgency of good decisions being made regarding airbags before the "1982 Model" year.

Though the airbag method of restraint is the most resilient, most people are aware that the publicized design describes an expensive, noisy and one-shot device with many problems, and of which the public is apprehensive.

However, the new reusable patented "Monaghan Simplified Passenger Airbag" solves these problems and, in addition, solves the four other difficulties which the Miami Herald article correctly pinpoints. Refer to Monaghan Illustration Fig. 4.

Difficulty #1: "The present design provides little or no protection in side impacts." However, the Monaghan Airbag, in Patent 3,888,329, Claim 5, states, "restraint pad includes rearwardly projecting sidewalls for restraining the occupant from sidewards movement." Further protection may be had if seat upholstery is shaped to receive the sidewalls. Refer to Fig. 4, shown in phantom.

Difficulty #2: ". . . little protection against rollovers." Refer to Monaghan Illustration Fig. 4 - the airbag, when inflated, is locked by the rotor over the knees with a downward pressure of approximately 400 pounds on an area of 1.5 square feet.

Difficulty #3: Present design provides "no protection on second impact after a frontal collision when the bags deflate." Refer to Monaghan Patent 3,888,329, Claim 9. This includes "time extension means for automatically extending the period of actuation of said power means upon the sensing of a plurality of successive accident events -- during the accident."

Difficulty #4: This refers in particular to seat belts, to the danger of sliding (submarining) under the restraint in an impact. This submarining is resisted by the Simplified Passenger Airbag due to the large frictional area of pressurized contact with the torso, including the sidewalls.

These safety features are only possible with the Monaghan Simplified Passenger Airbag because, first, it is reusable and, of course, can be pre-tested. Claims 1, 5 and 8 indicate it is visibly oriented to contact the passenger's torso and limbs, at short range. When preset, the pad is partly over the occupant and the seat; the passenger will then normally be in the correct position in an accident event.

Since it is not required to explode, it is not noisy; and using ordinary air, it is not toxic. The salesman in the garage can demonstrate, and the regular garage mechanic can adjust or replace the rubber bag which should cost no more than an inner tube.

The Airpad, shown manually preset in attached illustrations, Figs. 1, 2, 3; can be alternatively automatically preset to give the fastest action in an accident event. This is provided by Differential Timing of presetting and inflating. Refer Patent Specifications, Page 8, Lines 41 and 42.

This is obtained by fitting a double-acting push button type hinge switch on the car door. With the car door open, the Airpad will be in the top storage position, held there by spring - Claim 16.

* When the car door is closed, the door hinge switch actuates an electric low-speed rotary incremental motor which swings down the pad arm through 75 degrees to the preset position and electromagnetically locks the rotor shaft.

* When the car door is opened, the hinge switch disengages the magnetic lock and the spring returns the pad to storage.

In an accident event with either system, the Sensor Switch - Claim 2 - acting with the selective control valve - Claim 4 - will supply high pressurized air - Claim 6 - to provide contacting, firm engagement of the Airbag with the occupant - Claim 19 - Test Switch #230 will have been used to adjust and lower the bag pressure via a throttle and check valve on the swing arm close to the airpad.

Return of the restraint to storage after an accident event may be timed by the Sensor Switch to allow a few seconds before automatic pneumatic deflation and reversal of the Rotor releases the passenger. Refer Patent Specifications, Page 7, Lines 30 to 35.

JAMES MONAGHAN

Simplified Passenger Airbag

Page 1, Figure 1: Shows an Auto Passive Restraint, with an inflatable air-pad, positioned in Storage when a passenger takes a seat.

Page 1, Figure 2: Passenger chose to swing the pad to a pre-set position closer to the body for visible protection against panic stops and accidents.

Page 1, Figure 3: With the pad now in the pre-set position, a sensored accident event will instantly and quietly inflate the pad with air at a safe pressure to firmly restrain the passenger with minimum shock and to lock the rotor.

Figure 4, Below: Shows the restraint remaining in storage when the passenger chooses to be inactive. In a sensored accident event, the pad automatically swings down by air rotor, inflating simultaneously to restrain the passenger.

Special Note: This sensored safety device is reusable and can be pre-tested. It will actuate whether the pad is in the storage or the pre-set position. The patent includes "sensing means for ultra-rapidly restraining a vehicle occupant from moving, with two combined restraining forces."

(Graphics omitted)

Figure 4

U.S. Patent 3,888,329 Inventor: James Monaghan

Michael M. Finkelstein -- Associate Administrator for Rulemaking, NHTSA

Dear Mr. Finkelstein:

Many thanks for your letter of January 27, 1980, in regard to my Simplified Passenger Airbag. I agree that "the system would be slightly more feasible if the pads were automatically rotated into position after entering the vehicle."

If not considered a "forced action system," automatic presetting can be obtained within the cover patent #3,888,329 as follows.

Please refer to the patent specifications, Page 8, Lines 41 and 42. It states there: "If desired, differential timing between the air cushion and cylinder 208 could be provided." This is explained in the revised write-up of page one & page two, enclosed.

I agree that time-saving is very important and believe that Differential Timing will overcome the negligence of the few who might not even lower the pad to improve their vision over the dash. Also, it permits an increase in torso contact without being a hazard to a smoker. Enclosed is a revised copy of illustration Fig. 4. x

x P.S. The Simplified Passenger Airbag avoids vulnerable areas of the Torso.

I do not wish this Airbag to be used with front child seats; however, you indicate that my rear seat restraints for children have your interest.

Thank you for the Auto company addresses; I will write fully to them when I receive a reply from you.

Please confirm that the use of this door switch will permit NHTSA to retain patent 3,888,329 as a Passive Restraint. I would deeply appreciate an early reply, especially for age considerations. I am now in my eighties.

Sincerely,

James Monaghan

cc: Adminstrator Claybrook

ID: Wallach.3

ID: nht89-3.54

TYPE: INTERPRETATION-NHTSA

DATE: 12/13/89

FROM: JIM EVANS -- QUALITY CONTROL DEPT., THE BARGMAN COMPANY

TO: STEVEN P. WOOD -- ACTING CHIEF COUNSEL, NHTSA

TITLE: NONE

ATTACHMT: ATTACHED TO LETTER DATED 02-26-90 TO JIM EVANS, THE BARGMAN CO., FROM STEPHEN P. WOOD, NHTSA; (REDBOOK) A35; VSA 103(D); STD. 108

TEXT: My company manufactures lighting products for the recreational vehicle industry and we are in need of an interpretation of the rules in FMVSS 108 concerning the use of reflex reflectors on the rear of vehicles. I can find in this standard where two (2) red reflex reflectors are required on the rear of a vehicle (Tables I, II, III, IV) but I cannot find anything in the standard that would prohibit the use of any other color reflectors that could be used in addition to the red reflectors.

Specifically, we manufacture a red taillight lens that has a reflex reflector area around the outer edge of the lens. The stop, turn and tail, as well as the reflex functions all exceed the minimum requirements for these functions.

One of our customers has asked us to mold this same lens in yellow so that it could be used for the turn signal function. It would be mounted side by side with the red unit which would now be used for only stop and tail functions. The problem now arise s where both the yellow and red lens would be visable to traffic approaching from the rear. I checked with a local State Police Post here in Michigan, and they were able to find a section in the State Code that clearly states that reflectors mounted on the rear of a vehicle shall reflect a red color (I am enclosing a copy of this section for your reference). As I stated in my opening paragraph, I cannot find an equivalent ruling in the National standard. I am hoping that your office may have already addressed this problem in the past and that a ruling is already in effect.

My questions are two-fold: First, is it legal to put any other color reflector on the rear of a vehicle as long as the red reflectors are also present? Secondly, if in fact this situation is illegal (which I believe it probably is), could the National st andard be amended to show this fact and eliminate future confusion? Whichever way is correct, I would like to request a written statement to that effect as well as any supporting documentation for the ruling.

I am looking forward to hearing from you as soon as possible so that we can clear this matter up once and for all. Thank you.

Enclosure

(d) On every trailer or semitrailer having a gross weight in excess of 3,000 pounds:

On the front, 2 clearance lamps, 1 at each side.

On each side, 2 side marker lamps, 1 at or near the front and 1 at or near the rear.

On each side, 2 reflectors, 1 at or near the front and 1 at or near the rear.

On the rear, 2 clearance lamps, 1 at each side, also 2 reflectos, 1 at each side, and 1 stop light.

(e) On every poletrailer:

On each side, 1 side marker lamp and 1 clearance lamp which may be in combination, to show to the front, side or rear.

On the rear of the poletrailer or load, 2 reflectors, 1 on each side.

(f) On every trailer or semitrailer weighing 3,000 pounds gross or less:

On the rear, 2 reflectors, 1 on each side if any trailer or semitrailer is so loaded or is of such dimensions as to obscure the stop light on the towing vehicle, then such vehicle shall (Illegible Words) with 1 stop light

(g) When operated on the highway, every vehicle which has a maximum potential speed of 25 miles an hour implement of husbandry, farm tractor or special mobile equipment shall be identified with a reflective device as follows:

An equilateral triangle in shape, at least 16 inches wide at the base and at least 14 inches in height, with a dark red border, at least 1 3/4 inches wide of highly reflective beaded material;

A center triangle, at least 12 1/4 inches on each side of yellow orange fluorescent materials.

The device shall be mounted on the rear of the vehicle, broad base down, not less than 3 feet not more than 5 feet above the ground and as near the center of the vehicle as possible. The use of this reflective device is restricted to use on slow movi ng vehicles specified in this section, and use of such reflective device on any other type of vehicle or stationary object on the highway is prohibited.

On the rear, at each side, red reflectors or reflectorized material visible from all distances within 500 to 50 feet to the rear when directly in front of lawful upper beams of headlamps.

Am. 1988, Act 383.

CI 257.689 Clearance and marker lamps and reflectors; color. [MSA 9.2389]

Sec. 689. (a) Front clearance lamps and those marker lamps and reflectors mounted on the front or on the side near the front of a vehicle shall display or reflect an amber color.

(b) Rear clearance lamps and those marker lamps and reflectors mounted on the rear or on the sides near the rear of a vehicle shall display or reflect a red color.

(c) All lighting devices and reflectors mounted on the rear of any vehicle shall display or reflect a red color, except the stop light or other signal device, which may be red or amber, and except that the light illuminating the license plate-shall be white.

CI 257.690 Same; mounting [MSA 9.2390]

Sec. 690. (1) Reflectors shall be mounted at a height not less than 15 inches and not higher than 60 inches above the ground on which the vehicle stands, except that if the highest part of the permanent structure of the vehicle is less than 15 inches , the reflector at such point shall be mounted as high as that part of the permanent structure will permit.

(2) The rear reflectors on a pole-trailer may be mounted on each side of the bolster or load.

(3) Any required red reflector on the rear of a vehicle may be incorporated with the tail lamp, but such reflector shall meet all the other reflector requirements of this chapter.

(4) Clearance lamps shall be mounted on the permanent structure of the vehicle in such a manner as to indicate its extreme width and as near the top thereof as practicable. Clearance lamps and side marker lamps may be mounted in combination if illumi nation is given as required herein with reference to both.

Am. 1988, Act 383.

CI 257.691 Same; visibility. [MSA 9.2391]

Sec. 691. (a) Every reflector upon any vehicle referred to in section 689 of this chapter shall be of such size and characteristics and so maintained as to be readily visible at nighttime from all distances within 500 to 50 feet from the vehicle when directly in front of lawful upper beams of headlamps. Reflectors required to be mounted on the sides of the vehicle shall reflect the required color of light to the sides, and those mounted on the rear shall reflect a red color to the rear.

(b) Front and rear clearance lamps shall be capable of being seen and distinguished under normal atmospheric conditions at the times lights are required at a distance of 500 feet from the front and rear, respectively, of the vehicle.

(c) Side marker lamps shall be capable of being seen and distinguished under normal atmospheric conditions at the times lights are required at a distance of 500 feet from the side of the vehicle on which mounted.

CI 257.692 Combination vehicles obstructed lights. [MSA 9.2392]

Sec. 692. Whenever motor and other vehicles are operated in combination during the time that lights are required, any lamp (except tail lamps) need not be lighted which, by reason of its location on a vehicle of the combination, would be obscured by another vehicle of the combination, but this shall not affect the requirement that lighted clearance lamps be displayed on the front of the foremost vehicle required to have clearance lamps, nor that all lights required on the rear of the rearmost vehicl e of any combination shall be lighted.

ID: 571-205-Driver Shield for Buses and Vans_final signed (002)

Ms. Lee Ann Sparks Schetky

Bus & Van Sales

148 N. 90th Rd.

Culver, KS 67484

Dear Ms. Sparks:

This responds to your May 7, 2020 email asking about adding “driver shields” to transit buses and vans. You explain that you are developing a driver’s shield assembly to provide to your customers in the transit industry in an effort to protect drivers from the Coronavirus Disease 2019 (COVID-19). You describe the shields as being constructed with plexiglass, stainless tubing and fasteners, with a swing out door to give drivers access to the stepwell entry platform and passenger cabin. You ask about the requirements that would apply when adding these shields to vehicles. We appreciate this opportunity to respond.

Background 

By way of background, the National Highway Traffic Safety Administration (NHTSA) is authorized by the National Traffic and Motor Vehicle Safety Act (“Safety Act,” 49 U.S.C. Chapter 301) to issue Federal motor vehicle safety standards (FMVSS) that set performance requirements for new motor vehicles and new items of motor vehicle equipment. NHTSA does not approve motor vehicles or motor vehicle equipment and does not determine whether a product conforms to the FMVSS outside of an agency compliance proceeding. Instead, the Safety Act requires manufacturers to self-certify that their products conform to all applicable FMVSS that are in effect on the date of manufacture. NHTSA also investigates safety-related defects.

Discussion

Our answer below is based on our understanding of the specific information provided in your email and attached documentation. Please note that this interpretation letter does not have the force and effect of law and is not meant to bind the public in any way. NHTSA will make determinations of conformance with the FMVSSs only in the context of an agency enforcement proceeding. This letter is intended only to provide clarity to the public regarding existing requirements under the law, and represents the opinion of the agency on the questions addressed in your email at the time of signature.

After reviewing the information you provided, NHTSA has concluded that the transparent material of the “shield assembly,” located immediately to the right of a driver, is an interior partition composed of motor vehicle “glazing” that must comply with FMVSS No. 205, “Glazing materials.” FMVSS No. 205 establishes minimum performance requirements for glazing materials for use in motor vehicles and motor vehicle equipment and incorporates by reference an industry standard, the American National Standards Institute American National Standard for Safety Glazing Materials for Glazing Motor Vehicles and Motor Vehicle Equipment Operating on Land Highways-Safety Standard (ANSI/SAE Z26.1-1996). FMVSS No. 205 and ANSI/SAE Z26.1 specify performance requirements for various types of glazing (called “Items”), and specify the locations in vehicles in which each item of glazing may be used. FMVSS No. 205 applies to glazing installed in motor vehicles1 prior to first purchase and to aftermarket glazing for use in motor vehicles.

As motor vehicle glazing, the transparent material of your barrier must meet the requirements of FMVSS No. 205 and be certified as meeting that standard by the prime glazing manufacturer, and, if applicable, the manufacturer or distributer who cuts the glazing into components for use in motor vehicles or items of motor vehicle equipment.2 If you, in assembling the barrier, cut the glazing, you must ensure the glazing meets the requirements of FMVSS No. 205, and must certify its compliance pursuant to S6.3 of FMVSS No. 205. On the other hand, if you only assemble the barrier using pre-cut glazing that has been certified by a glazing manufacturer, you are not required to certify the glazing. However, as the manufacturer of the aftermarket barrier, you are responsible for ensuring your product is free from safety-related defects. If you or this agency finds your product to contain a safety-related defect after you market the product, you are responsible for conducting a notice and recall campaign as required under 49 U.S.C. §§ 30118- 30120.

As described in your email, the barrier would be located to the right of the driver. In that location, and for every vehicle type, portions of the glazing would be requisite for driving visibility. Any portion of the glazing that the driver would see through in order to view windows requisite for driving visibility would also be considered requisite for driving visibility. For buses and multipurpose passenger vehicles (MPVs), this would include any window to the immediate right or left of the driver and the front windshield.3 (For passenger cars, all windows are considered requisite for driving visibility.)

1 Requirements for glazing vary by vehicle type. You state that the barriers will be installed in buses and “vans.” NHTSA does not use the term “van” when classifying motor vehicles for purposes of FMVSS applicability. If the vehicle in which the barriers will be installed carry more than 10 persons, the vehicle would be classified as a bus under NHTSA’s FMVSS. If the vehicle carries 10 or fewer persons, it would be classified as either a multipurpose passenger vehicle (MPV) or passenger car, depending on whether the vehicle is built on a truck chassis or with special features for occasional off-road operation (49 CFR 571.3). Based on your email, we assume that the vehicles in which the barriers would be installed are not passenger cars. Thus, we assume the vehicles are “buses” or “MPVs.” We assume the vehicles are not trucks. This classification is important for determining the application of the glazing standard to the vehicles.

2 49 CFR 571.205, S6.

3 In a letter to Cris Morgan, NHTSA concluded that low-level glazing on doors to the right or left of the driver are considered windows that are requisite for driving visibility. Therefore, glazing through which the driver would view

Glazing for interior partitions in areas requisite for driving visibility must be of one of the following types of glazing: Item 1, Item 2, Item 4, Item 4A, Item 10, Item 11A, Item 11C,4 Item 14, Item 15A, or Item 15B. Glazing for interior partitions in areas not requisite for driving visibility must be one of the following types of glazing: Item 1, Item 2, Item 3, Item 4, Item 4A, Item 5, Item 10, Item 11A, Item 11B, Item 11C, Item 12, Item 13, Item 14, Item 15A, Item 15B, Item 16A, or Item 16B.

Please note that there may be additional requirements depending on who installs the barrier. If the barrier is installed prior to first vehicle sale, the installer must ensure that, with the barrier installed, the vehicle complies with FMVSS No. 205 and all other applicable FMVSS, and must certify the vehicle as complying with all applicable FMVSS. If the barrier is installed as aftermarket equipment by a manufacturer, distributor, dealer, rental company, or motor vehicle repair business, that entity would be subject to 49 U.S.C. 30122, which prohibits the entity from knowingly making inoperative any device or element of design installed on or in a motor vehicle or item of motor vehicle equipment in compliance with an applicable FMVSS. In either case, the entity installing the barrier should pay particular attention to ensuring that installation of the barrier does not obstruct the driver’s view of the mirrors and/or rearview image required under FMVSS No. 111, “Rear visibility,” impact the vehicle’s compliance with FMVSS No. 302 “Flammability of interior materials,” prevent the driver from readily accessing emergency exits installed in compliance with FMVSS No. 217, “Bus emergency exits and window retention and release,” or impede the driver’s ability to see through the windows needed for driving visibility.5

Apart from requirements that NHTSA administers, the installation of the barrier may be subject to other Federal or State laws or regulations. For example, purchasers or lessees of the vehicles may be subject to the Americans with Disabilities Act (ADA) and the accessibility requirements found at 49 CFR Parts 37 and 38 and may need to ensure that the vehicle they purchase or lease continues to comply with the requirements after the barrier is installed.

these windows would be considered requisite for driving visibility. Letter to Cris Morgan (January 14, 2009), available at https://isearch.nhtsa.gov/files/08-004149--19%20Nov%2008--sa.htm.

4 If the partition is a bullet-resistant shield constructed using Item 11C glazing, the combined parallel luminous transmittance with perpendicular incidence through both the shield and the permanent vehicle glazing is to be at least 60 %.

5 To ensure that installation does not impact the vehicle’s compliance with applicable FMVSS, the installer should be familiar with FMVSS requirements for a vehicle of its type and weight. Please note that installation of a safety barrier in vehicles with a GVWR of 4,536 kg (10,000 pounds) or less may require additional considerations as there are different, and often more stringent, requirements for lighter vehicles.

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

Sincerely,

JONATHAN CHARLES MORRISON

Digitally signed by JONATHAN CHARLES MORRISON 

Date: 2020.06.04 19:42:26 -04'00'

Jonathan C. Morrison Chief Counsel

Dated: 6/4/20

Ref: FMVSS No. 205

ID: aiam4940

"Dear Mr. Klisz: This responds to your letter regarding foreign-mad tires that the Army procured in Southwest Asia. You indicated that your office is trying to ascertain the suitability of these tires, not all of which are marked with a 'DOT' certification, for Army use. You enclosed a list of the tires and, for those marked with 'DOT', requested this office to 'determine if the DOT codes are accurate according to our records.' You also requested that we verify your understanding of the general requirements applicable to foreign tire manufacturers, and the process by which such manufacturers certify their tires as complying with our standards. I am pleased to have this opportunity to answer your questions. For your information, I have enclosed a copy of the National Traffic and Motor Vehicle Safety Act (the Safety Act). Section 103 of the Safety Act authorizes the National Highway Traffic Safety Administration (NHTSA) to issue Federal motor vehicle safety standards for new motor vehicles and new motor vehicle equipment. The Safety Act defines a motor vehicle safety standard as, 'a minimum standard for motor vehicle performance, or motor vehicle equipment performance, which is practicable, which meets the need for motor vehicle safety and which provides objective criteria.' See 102(2) . The Safety Act then requires that all motor vehicles and motor vehicle equipment sold or imported into the United States, regardless of whether the product is manufactured in the U.S. or abroad, must comply with the safety standards adopted by NHTSA. Specifically, 108(a)(1)(A) of the Safety Act provides: no person shall manufacture for sale, sell, offer for sale, or introduce or deliver into introduction in interstate commerce, or import into the United States, any motor vehicle or item of motor vehicle equipment manufactured on or after the date any applicable Federal motor vehicle safety standard takes effect under this title unless it is in conformity with such standard and is covered by a certification issued under 114... In the case of tires, this provision of the Safety Act means that a foreign tire manufacturer would be prohibited from exporting its new tires to the United States unless the manufacturer certified that the tire complies with the applicable U.S. safety standards. All new tires for use on passenger cars must be certified as complying with Federal Motor Vehicle Safety Standard No. 109 (49 CFR 571.109), and all new tires for use on other motor vehicles must be certified as complying with Federal Motor Vehicle Safety Standard No. 119 (49 CFR 571.119). These standards specify performance requirements (strength, endurance, high speed performance, and, for passenger car tires only, resistance to bead unseating), marking requirements (treadwear indicators and labeling information), and tire and rim matching information requirements that must be met by all tires to be sold in the United States. The process of certifying compliance with the applicable safety standards under the Safety Act is substantially different than that used in many other countries. For instance, the European nations require manufacturers to deliver tires to a governmental entity for testing. After the governmental entity itself tests the tires, the government approves those tires for use and assigns an approval code to the tires. In place of this sort of process, the Safety Act establishes a 'self-certification' process for tires sold in the United States. Under this self-certification process, the tire manufacturer, not any governmental entity, certifies that its tires comply with the applicable safety standards. Further, the Safety Act does not require that a manufacturer base this certification on a specified number of tests or any tests at all, a manufacturer is only required to exercise due care in certifying its tires. It is up to the individual tire manufacturer to determine in the first instance what test results, computer simulations, engineering analyses, or other information it needs to enable it to certify that its tires comply with the applicable Federal motor vehicle safety standards. Once a manufacturer has determined that its tires meet the requirements of the applicable standard, it certifies that compliance by molding the letters 'DOT' on one sidewall of each certified tire. As stated above, NHTSA does not do any pre-sale approval or testing of tires. Instead, the agency routinely tests certified tires that have been sold to determine whether the tires do in fact comply with applicable standards. For these enforcement checks, the agency purchases new tires and tests them according to the procedures specified in the standard. If the tires pass the tests, no further steps are taken. If the tires fail the tests and are determined not to comply with the standard, the tire manufacturer is required to recall the tires and remedy the noncompliance. Turning now to your particular situation, it is not clear how helpful these requirements will be in assessing the current safety performance of the tires procured during Operation Desert Storm/Desert Shield. In the case of such tires that are marked with 'DOT', that mark means the tire manufacturer certified that, when new, the tires complied with all applicable safety standards. However, the presence of a 'DOT' symbol on a used tire does not mean that the tire in its current condition would still comply with the new tire standards. There are many instances in which used tires would be unlikely to comply with the new tire standards, simply because of normal environmental factors and without any fault in the construction of the tire. Such environmental factors include, but are not limited to, a hole larger than a nail suffered by the tire while in service, damage to the inner liner of the tire from being run flat, damage to the bead area of the tire during mounting, damage to the sidewall from running against rocks, curbs, and so forth. In each of these instances, the vehicles on which the tires have been used and the conditions in which those vehicles have been operated would be at least as important in determining the tire's current performance capabilities as would the tire's capabilities when it was new. Further, the absence of a 'DOT' symbol on a tire purchased outside of the United States does not necessarily mean that the tire, when new, would not have complied with the applicable tire safety standard. On the contrary, it is possible that the new tire would have, if tested, actually been found to comply with those safety standards. The only definitive conclusion you may draw about a tire without a 'DOT' symbol that is purchased outside the United States is that the tire's manufacturer, for whatever reason, did not certify that tire's compliance. It could be that the tire did not comply when new, or it could be that the manufacturer did not produce the tire for importation and eventual sale in the U.S., and therfore felt no need to certify the tire. You noted in your letter that this agency has established a requirement in 49 CFR Part 574 that all tire manufacturers, both foreign and domestic, must obtain an identification mark from NHTSA and label each of their tires with that mark. Before NHTSA will assign an identification mark to a tire manufacturer headquartered outside the United States, the manufacturer must designate a permanent resident of the United States as the manufacturer's agent for service of process in this country. However, the designated agent of the manufacturer only acts as the agent for service of process, the manufacturer's designated agent is not responsible for the certification of the tires. Only the manufacturer certifies that the tires comply with all applicable standards and, as explained above, that certification must be made (and indicated with a DOT symbol) before the tire would be allowed to enter the United States. Finally, you requested in your letter that we review the list of tires you submitted and verify the accuracy of the 'DOT' marks shown. I believe this request was based upon a misunderstanding of NHTSA's role in the certification process. Since manufacturers are not required to deliver their tires to NHTSA for testing, or register their products with the agency, the agency has no way to 'verify the accuracy' of the DOT codes you submitted. To repeat, the DOT code molded into the sidewall of a tire represents the manufacturer's self-certification that the tire complies with applicable standards, the DOT code is not a statement or certification by NHTSA that the tire complies with our standards. NHTSA would only have information about the 'accuracy' of the DOT codes (i.e., whether the tires so marked actually meet the standards), in the event that the agency had conducted one of its random enforcement checks on a new tire like the one in question. Accordingly, we reviewed our enforcement records to determine whether NHTSA performed compliance tests on new versions of any of those tires. Having searched the agency's data base for the brands, types, and years of the listed tires, we found that the agency did not conduct compliance tests on any of these tires. I hope this information is helpful. Please contact Stephen Kratzke of my staff at this address or by telephone at (202) 366-2992 if you have further questions. Sincerely, Paul Jackson Rice Chief Counsel Enclosure";

ID: 2794o

Mr. Koji Tokunaga
Manager, Engineering
Isuzu Motors America, Inc.
21415 Civic Center Drive
Southfield, MI 48076-3969

Dear Mr. Tokunaga:

This letter responds to your inquiry in which you ask a number of questions concerning Federal motor vehicle safety standard (FMVSS) 124, Accelerator Control Systems. I apologize for the delay in this response. In your letter, you describe a new accelerator control system that operates through electrical rather than mechanical signals.

You state that the moving components of this system are the accelerator pedal, stepping motor arm, linkage, and the throttle lever. When a driver depresses the accelerator pedal, a pedal sensor converts the displacement into a proportional electric signal. The signal goes through a control unit to a position switch, and then to a stepping motor. This stepping motor works to move the motor's arm and linkage, and they in turn work the throttle lever. Therefore, you say, the engine speed is controlled in proportion to the amount of accelerator pedal displacement.

You further inform us that Isuzu already has distributed vehicles equipped with this system in Japan, and that the company would like to market this kind of vehicle in the United States. You present three questions and a diagram of the system components, and request an agency response.

First, please be aware that in issuing this interpretation, NHTSA is neither approving, certifying, nor endorsing your new accelerator control system. Under the National Traffic and Motor Vehicle Safety Act, each manufacturer must certify that its product meets agency safety standards, or other applicable standards. However, based on the information you supplied in your letter, I have the following responses.

Question I: In this vehicle, Isuzu considers the battery that drives the stepping motor to be one of the energy sources under S5.1, and the return springs (accelerator pedal and throttle lever return springs) the other sources. Is this interpretation correct? We do not have enough information to state whether the battery that drives the stepping motor, or the return springs would be considered energy sources under S5.1. Section S5.1 of Standard 124 requires, among other things, that there be a minimum of two energy sources capable of returning the throttle to idle whenever the driver removes the opposing actuating force, or if there is a single severance or disconnection in the accelerator control system.

With respect to the battery, if all system elements are operating properly, then it would appear that removing the actuating force will cause the electrical circuit from accelerator pedal sensor to stepping motor to return the throttle to idle. On the other hand, if there is a failure caused by a severance or disconnection in the accelerator control system between the pedal and the stepping motor, it is not clear to me whether the stepping motor will return to zero, and bring the throttle springs back to idle; or lock the arm and linkage in an "open-throttle" position.

Similarly, it is not clear to me that the accelerator pedal and throttle return springs are capable of returning the throttle to idle in the event of a failure caused by an ACS severance or disconnection. (While you include the throttle lever in your description of the accelerator control system, the agency considers it as part of the fuel metering device. However, as NHTSA explained in the preamble to 124, an energy source under the Standard may be attached to the fuel metering device. [37 FR 20033, September 23, 1972.]) Ordinarily, the agency would have no difficulty in finding that either of the throttle return springs is an energy source capable of returning the throttle to idle. But I cannot tell from your description and diagram whether a severance or disconnection in the electrical system would cause the throttle to lock in a position other than idle.

I would make the same observation with respect to the accelerator pedal. I can not tell from the information you supplied what impact a severance or disconnection failure would have on the pedal. For example, it is not apparent whether some element in the electrical system senses a severance or disconnection in the accelerator control system, so that a sensor transmits a signal to the appropriate energy sources that the throttle should return to idle. If the pedal and return springs can operate mechanically and in concert to return the throttle to idle in the event of a failure in the accelerator control system caused by a severance or disconnection, then together they may be an energy source under the Standard.

Question 2a: Is a severance in electric wires in this system a severance or disconnection within the meaning of S5.2? Isuzu considers negative because electric wires are not a moving part.

A severance or disconnection of the electric wires in this system would be a severance or disconnection within the meaning of S5.2 of Standard 124.

Section S4.1 of Standard 124 defines a "driver-operated accelerator control system" as "all vehicle components, except the fuel metering device, that regulate engine speed in direct response to movement of the driver-operated control and that return the throttle to the idle position upon release of the actuating force."

You stated in your letter that, in this new system, when the driver depresses the accelerator pedal, the mechanical displacement is converted into electrical signals. These electrical signals are transmitted by wires to a control unit that regulates engine speed in direct response to pressure on the accelerator pedal, again by means of wires that connect the control unit's electrical signal to the appropriate components. Thus, the control unit, all of the components to which it is connected, and the wires that make those connections are "vehicle components ... that regulate engine speed in direct response to movement of the driver-operated control and that return the throttle to the idle position upon release of the actuating force." Under S4.1, then, the control unit, the components to which it is connected, and the wires that make the connection are components of the driver-operated accelerator control system.

Section S5.2 of Standard 124 requires that the throttle return to idle "from any accelerator position or any speed...whenever any one component of the accelerator control system is disconnected or severed at a single point." Please note that this language does not limit the requirement to disconnections or severances of components that are moving parts. Thus, all severances or disconnections of any component of the accelerator control system are within the ambit of the standard. In this case, since the wires are a component of the accelerator control system, the throttle must return to idle whenever a wire is disconnected or severed.

Question 2b: If a severance in electric wires were a severance or disconnection under S5.2, what about a short-circuiting that may result from such a severance? Does the Standard require that the throttle returns to the idle position even in such a condition?

Yes. Section S5.2 of Standard 124 requires the throttle to return to the idle position whenever any component of the accelerator control system is disconnected or severed at a single point, regardless of the other consequences of the disconnection or severance. In the case of this system, this language requires the throttle to return to idle when any wire is severed, even if the severance results in a short circuit.

Question 2c: Our understanding is that a failure (other than severance or disconnection) of a system component itself (i.e. a failure in the accelerator pedal sensor with pedal position switches, control unit, throttle valve position switch, or stepping motor) is not subject to the throttle return requirement under the Standard. Is this correct?

Your understanding is partially correct. Standard 124 addresses those circumstances where (1) the driver removes the opposing actuating force; and (2) a severance or disconnection in the ACS causes a failure. Therefore, you are correct that Standard 124 addresses only those failures resulting from a severance or disconnection within the system. However, for electrical systems, shorted or open circuits are the consequence of a change in one or more of the electrical components in the system. The agency would consider such a change a disconnection or severance in the context of this Standard.

Question 3: It is our interpretation that the battery and the electric wires from the battery to the control unit are not a part of the accelerator control system under this definition. (That is, the definition of "driver-operated accelerator control system.") Is this interpretation correct?

No, your interpretation is incorrect. We have set out the definition of "driver-operated accelerator control system" in section S4.1 above, in response to your Question 2a. With respect to your electrical accelerator control system, the electrical impulse that travels between the vehicle battery and the control unit is a direct consequence of the driver's applying an actuating force to the accelerator pedal. Given this aspect of your system's design, both the vehicle battery and the electric wires from the battery to the control unit fall within the definition of "driver-operated accelerator control system."

I hope you find this information helpful.

Sincerely,

Erika Z. Jones Chief Counsel

ref:124 d:8/8/88

ID: 2405y

His Excellency
D. H. Burney
Ambassador of Canada
501 Pennsylvania Ave., N.W.
Washington, D.C. 20001

Dear Mr. Ambassador:

Thank you for your letter of March 16, 1990, expressing the concern of your country about this agency's new regulations on importation of motor vehicles and equipment.

Canada is concerned that, under P.L. l00-562, the Imported Vehicle Safety Compliance Act of l988, Canadian vehicle brokers, dealers, and private citizens will not, for all practical purposes, be able to export new or used Canadian market vehicles to the United States. It is concerned further that Canadian individuals and firms will be precluded from providing conformance goods and services for vehicles exported to the United States. Canada therefore requests that this agency modify its regulations with respect to Canadian market vehicles, recognizing their near-compliance with the Federal Motor Vehicle Safety Standards, and accommodating their entry in the least costly and burdensome manner. You have five specific requests, and I shall address each.

Preliminarily, I want to note several things. First, my assurance that this agency gave very careful consideration to the concerns of Transport Canada in adopting final regulations under the 1988 Act, as well as those expressed by Canadian companies that commented on the proposed regulations. As we noted in the notices proposing and adopting those regulations, our discretion to make changes in the regulations was narrowly circumscribed in many instances by the detailed language of that Act. On a more technical level, I want to note that your understanding of our new regulations expressed in paragraphs (a) through (g) on page 2 of your letter is essentially correct. However, with respect to your paragraph (d), please note that determinations of vehicle eligibility for importation may also be made by me as Administrator on my own initiative, and need not be pursuant to a petition. Also, as to paragraph (e), I would like to point out that the bond processing fee, proposed to be $125, is only $4.35 (however, under paragraph (f) the bond is not less than l50% of the dutiable value of the vehicle).

Your first request is that the agency "recognize Canadian market vehicles as a special class of non-complying vehicles requiring only minor changes to meet the FMVSS." The l988 Act was enacted on October 31, l988, and became effective January 31, l990. I regret to say that none of its provisions authorize the agency to directly distinguish between non-complying vehicles of Canadian manufacture and those originating in other countries.

However, the eligibility provisions that you reference in paragraph (d) do permit a basis for minimizing some of the burden that the l988 Act imposes. We begin with the premise that if a Canadian vehicle has not been certified by its manufacturer as in conformance with U.S. standards, then it cannot be presumed to conform in all respects to the U.S. standards. Canadian and U.S. safety standards do differ in some ways (e.g., mandatory automatic crash protection for U.S. market passenger cars manufactured on and after September 1, l989). Nevertheless, we believe that enough similarity may exist to support a finding that a Canadian passenger car is "substantially similar" to a U.S. passenger car, justifying a determination that it is eligible for importation into the United States, and capable of conversion to meet U.S. safety standards. Further, such a finding may be made on our own initiative. I am pleased to inform you that NHTSA is publishing a notice of tentative determination that would cover all passenger cars certified as meeting the Canadian Motor Vehicle Safety Standards, and that were manufactured up to September 1, l989. A copy of the notice is enclosed for your reference. After receiving and considering public comment, we will make a final decision on this matter. If we decide to adopt our tentative determination as a final determination, your first request would, in effect, be granted.

Your second request is that we "exempt such vehicles from the fees." These fees are the ones mentioned in paragraphs (c), (d), and (e) of your letter, the registered importer annual registration fee, the vehicle eligibility petition fee, and the bond processing fee. Each fee is specifically required by the l988 Act, and must be established in advance of the fiscal year in which it is effective. The registered importer fee is required to cover agency costs for administration of the registration program. The vehicle eligibility fee is required to cover the agency's costs in making and publishing eligibility determinations. The bond processing fee is required to reimburse the U.S. Customs Service for its costs in processing the agency's conformance bond that accompanies each nonconforming vehicle. Congress provided no authority to waive these fees, or to modify them during the fiscal year that they are in effect. Thus, the fees that have been established must remain in effect until October 1, l990. When we begin the review that will lead to next year's fees, we shall be happy to consider whether some provision may be made for Canadian market vehicles. In the meantime, I would like to point out that under our notice of tentative determination on eligibility of Canadian vehicles, the fee of $l,560 would cover the blanket determination of all passenger cars, and would not be applied to each individual model and model year of passenger car. This action would effectively moot Canada's second request that Canadian market passenger cars be exempted from the determination fee.

Canada's third request is to "exempt them from the bonding requirement." The l988 Act requires the importer of a non-conforming vehicle to furnish an appropriate bond to ensure that the vehicle will be brought into compliance, or will be exported or abandoned to the United States. This is not a new requirement; ever since January 1, l968, each nonconforming vehicle, Canadian or otherwise, has been required to be accompanied by a conformance bond upon its entry into the United States. The l988 Act provides us with no authority to exempt Canadian vehicles, and does not distinguish degrees of nonconformity. Therefore, we believe that we are unable to grant Canada's request, absent specific authorization by the U.S. Congress.

The fourth request is to "exempt them from the requirement that they be imported by registered importers, who must be U.S. citizens." This request raises two issues: whether Canadian market cars may be imported by persons other than registered importers, and whether registered importers must be U.S. citizens. As to the first issue, the l988 Act does allow one alternative to direct importation by a registered importer. That is, a person other than a registered importer may import a nonconforming vehicle if he has a contract with a registered importer to perform conformance work. This would allow a Canadian citizen to import a Canadian market car, without himself becoming a registered importer.

The second issue is whether a Canadian company is permitted to be a registered importer. We believe that a registered importer is a person who is physically present in the territory in which importation occurs, as opposed to an exporter, who is outside that territory. While we are not conversant with the laws of the individual States, we believe that a Canadian company could qualify to do business within an individual State, and become a registered importer. Thus, it is not necessary to be a U.S. "citizen", but it is necessary to be subject to U.S. jurisdiction. The l988 Act requires the registered importer regulation to contain requirements for recordkeeping, and inspection of records and facilities. Since the jurisdiction of the National Traffic and Motor Vehicle Safety Act does not extend beyond the boundaries of the United States, we believe that it would be difficult to enforce our provisions on inspection of premises, documents, etc. in the territory of another country.

This brings us to your fifth and final request, that we "allow modifications to be done in either the United States or Canada." Under current regulations, conformance work is permitted to be performed outside the United States. However, vehicles modified in this fashion must be admitted under the same procedures as if they had not been modified. This allows the agency to review the documents on pre-importation conversion work, to ensure that it has been satisfactorily accomplished, before the conformance bond is released. Accordingly, we believe that the concern underlying this request has already been accommodated.

If, after reviewing this letter, you have further suggestions for reducing the burdens that the new law may have imposed on importations of Canadian-manufactured vehicles, I would be happy to consider them.

Sincerely,

Jerry Ralph Curry

Enclosure ref:59l#592#593#594 d:4/24/90