ID: 3271yy

Mr. John H. Heinrich
District Director of Customs
U.S. Customs Service
300 So. Ferry Street
Terminal Island, CA 90731

Re: Case No. 92-2704-00015

Dear Mr. Heinrich:

This responds to your letter of December 5, 1991, enclosing a petition for relief from the forfeiture of "200 Spinner Wheel Nuts" seized by the Customs Service as violative of 49 CFR Sec. 571.211. The petitioner expresses the opinion that the wheel nuts should be exempt from DOT regulations, stressing safety considerations and the need to replace worn parts on vehicles manufactured in the l950's. You have also enclosed a copy of the petitioner's own parts list that identifies the wheel nuts as part of a conversion kit, intended to replace disc wheels with wire wheels.

Federal Motor Vehicle Safety Standard No. 211, Wheel Nuts, Wheel Discs, and Hub Caps, 49 CFR 571.211, precludes, for use on passenger cars, wheel nuts that incorporate winged projections. The chrome wheel nuts depicted in the Moss Motors catalogue page which you enclosed (Parts Nos. 200-210 and 200-220) clearly incorporate winged projections, and are the type of wheel nuts that Standard No. 211 addresses and prohibits. As such, they may not be imported for sale in the United States.

We have discounted petitioner's safety arguments. This is the first allegation in the nearly 24 years that the standard has been in effect that the spinners are required to replace original equipment, implying that there is no acceptable substitute that would conform with Standard No. 211. In our view, no justification has been shown for granting the petition.

Sincerely,

Paul Jackson Rice Chief Counsel

/ref:2ll d:l/9/92

ID: 3272yy

Mr. Tadoru Yamamoto
Technical Administration Div.
Hino Motors, Ltd.
1-1, Hino-dai 3-chome
Hino-shi, Tokyo 191, Japan

Dear Mr. Yamamoto:

This responds to your letter concerning Federal Motor Vehicle Safety Standard 113, Hood Latch System. You ask two questions about the applicability of the standard's requirements to your vehicle. As explained below, the vehicle must have a hood latch system, but need not have a second latch position on the system or a second hood latch system.

By way of background information, NHTSA does not provide approvals of any vehicle or equipment. Under the Vehicle Safety Act, it is your responsibility as a manufacturer to determine whether your vehicles and equipment comply with all applicable safety standards and regulations, and to certify your products in accordance with that determination. The following interpretation represents the agency's opinion based on the information provided in your letter.

Standard 113 requires that a vehicle's hood must have a hood latch system (S4.1). The standard also requires a front opening hood to have a second latch position on the latch system or a second hood latch system, if the hood has any open position that partially or completely obstructs a driver's forward view through the windshield (S4.2). The standard defines "hood" as "any exterior movable body panel forward of the windshield that is used to cover an engine, luggage, storage, or battery compartment" (S3).

Your first question asks about the general applicability of Standard 113's requirements to your vehicle. You believe your vehicle is not subject to any of the standard's requirements because the front panel of the vehicle is not forward of the windshield, and is therefore not a "hood" as defined by Standard 113.

We disagree. According to the drawing you provided with your letter, the body panel appears to be forward of the windshield. We would consider the panel to be a hood, and subject to S4.1's requirement for a hood latch system.

Whether the hood must have a secondary latch for the hood (either a second latch position on the hood latch system or a second latch system) is the subject of your second question. The answer is that the hood need not have the secondary latch. The secondary latch is required by S4.2 only for a front opening hood. According to the drawing you provided, your hood is essentially vertical, with the opening on the bottom of the hood. We consider a hood such as yours that is essentially vertical not to be a front opening hood.

We note that a secondary latch for front opening hoods is required because such a hood is particularly hazardous if it were to unlatch during vehicle operation. The front opening design of the hood lends itself to flying open while the vehicle is moving, obstructing the driver's view through the windshield. However, an essentially vertical hood such as yours does not lend itself to such openings if it were to become unlatched. The secondary latch is therefore not required by the standard.

I hope this information is helpful. If you have further questions, please contact Deirdre Fujita of my staff at (202) 366-2992.

Sincerely,

Paul Jackson Rice Chief Counsel

/ref:113 d:1/13/92

ID: 3273yy

Sue Ellen Russell, Esq.
Brand & Lowell
923 Fifteenth Street, NW
Washington, DC 20005

Dear Ms. Russell:

This responds to your letter of October 24, 1991, concerning Safety Standard No. 210, Seat Belt Assembly Anchorages. You stated that Glaval Corporation, which you represent, recently notified NHTSA of its intention to conduct a notification and remedy campaign to respond to "an apparent noncompliance with the safety belt anchorage strength requirements as they apply to the rear bench seat in Glaval vans." According to your letter, these seats contain three designated seating positions, and each seat belt anchorage is "mounted on the seat, not the floor." You stated that in the course of evaluating potential remedies, you became aware of an April 9, 1990 interpretation letter sent by this agency to Mr. R.W. Schreyer of Transportation Manufacturing Corporation, in which the agency stated that only floor-mounted anchorages are subject to simultaneous testing. Because the Glaval van bench seat anchorages were tested simultaneously in NHTSA's compliance test, you asked the following questions:

1. Consistent with the Schreyer interpretation, should the seat-mounted anchorages of the Glaval bench seat have been loaded sequentially in NHTSA's test? If so, how does NHTSA's test on the Glaval bench seat, where the loads were applied simultaneously, affect NHTSA's tentative conclusion of noncompliance?

You are correct that, consistent with the Schreyer interpretation, only floor-mounted anchorages are subject to simultaneous testing under current requirements. However, based on our understanding of the Glaval design, and as discussed below, we consider the anchorages in the Glaval van to be floor-mounted. Therefore, the Schreyer interpretation is not relevant to whether the Glaval van is in compliance with Standard No. 210.

Based on photographs included in the Final Report of FMVSS 210 Compliance Testing of 1991 Glaval Van (Report No. 210-GTL-91-003), it appears that the seat belts are attached to a bar which runs along the floor behind the bench seat. The bar is directly mounted to floor brackets which run along each side of the seat.

Section S4.2 of Standard No. 210 specifies that floor-mounted seat belt anchorages for adjacent designated seating positions are simultaneously tested. The term "seat belt anchorage" is defined in section S3 as "the provision for transferring seat belt assembly loads to the vehicle structure."

In the design at issue, the seat belt anchorage, or provision for transferring seat belt assembly loads to the vehicle structure, includes the seat belt bar. Since the seat belt bar is mounted to the floor by means of the two brackets along the sides of the seat, the seat belt anchorage is "floor-mounted."

I note for your information that, on April 30, 1990, the agency published a final rule amending Standard No. 210 to, among other things, require simultaneous loading of all anchorages common to the same occupant seat. This amendment is effective on September 1, 1992.

2. Since Standard 207 requires simultaneous loading of the forces required by Standard 207 along with those required by Standard 210, does the Schreyer interpretation mean that, for a bench seat with seat-mounted anchorages, the proper loading for a test pursuant to FMVSS 207 should be 20 times the seat weight plus the proper load for one designated seating position on the bench seat?

Your understanding of the Standard No. 207 test is correct.

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.

Sincerely,

Paul Jackson Rice Chief Counsel ref:207, 210 d:1/14/92

ID: 3274yy

Mr. Takashi Odaira
Chief Representative
Emission & Safety
Isuzu Technical Center of America, Inc.
46401 Commerce Center Drive
Plymouth, MI 48170

Dear Mr. Odaira:

This responds to your letter asking about the new dynamic requirements of Safety Standard No. 214, Side Impact Protection. You noted that the rear seat requirements do not apply to passenger cars which have rear seating areas that are so small that the Part 572, subpart F dummies cannot be accommodated according to the specified positioning procedure. You asked whether a test dummy should nonetheless be placed on the rear seat of such vehicles when conducting the specified dynamic test. As discussed below, the answer to your question is no.

Section S3 of Standard No. 214 includes the following language concerning the dynamic side impact requirements:

Part 572, subpart F test dummies are placed in the front and rear outboard seating positions on the struck side of the car. However, the rear seat requirements do not apply to passenger cars with a wheelbase greater than 130 inches, or to passenger cars which have rear seating areas that are so small that the part 572, subpart F dummies cannot be accommodated according to the positioning procedure specified in S7.

Reading these two sentences together, it is our interpretation that a test dummy should not be placed in the rear outboard seating position of passenger cars which have rear seating areas that are so small that the part 572, subpart F dummies cannot be accommodated according to the positioning procedure specified in S7. While the first sentence states that the test dummies should be placed in both the front and rear outboard seating positions on the struck side of the car, that provision is limited by the sentence which immediately follows. That second sentence makes it clear that the rear seat requirements do not apply to certain vehicles with small rear seating areas. Since the sole purpose for placing a test dummy in the rear outboard seating position is to measure compliance with the dynamic side impact requirements, a test dummy should not be placed in the rear seating position of a passenger car for which the rear seat requirements do not apply.

I hope this information is helpful. If you have further questions, please contact Edward Glancy of my staff at (202) 366-2992.

Sincerely,

Paul Jackson Rice Chief Counsel /ref: 214 d:1/14/92

ID: 3275yy

Mr. Edward M. Klisz
Chief, Light Tactical Vehicle Branch
Department of the Army
United States Army Tank-Automotive Command
Warren, MI 48397-5000

Dear Mr. Klisz:

This responds to your letter regarding foreign-made 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

/ref: Std 119, Part 574 d:1/17/92

ID: 3276yy

Edward F. Conway, Jr., Esq.
Assistant General Counsel
Recreation Vehicle Industry Association
P.O. Box 2999
1896 Preston White Drive
Reston, VA 22090

Dear Mr. Conway:

I have been asked to respond to your letter to Administrator Curry, in which you asked about the application of Federal Motor Vehicle Safety Standard No. 216, Roof Crush Resistance, to van conversions and motor homes with raised roofs. In your letter, you suggested that the currently specified roof crush resistance test procedure is inappropriate for such vehicles because of their unique physical characteristics. Additionally, referring to the greater floor to roof height of a van conversion or motor home as compared to a typical passenger car, you questioned whether the five inch roof displacement pass/fail criteria are appropriate for these vehicles. I am pleased to have the opportunity to address these issues.

As you know, on April 17, 1991, NHTSA published a final rule extending the application of Standard No. 216 to multipurpose passenger vehicles (MPVs), trucks and buses with a GVWR of 6,000 pounds or less, manufactured on or after September 1, 1993 (56 FR 15510). That rule requires that the roof of any such vehicles be moved not more than five inches when a force of one and a half times the vehicle's unloaded weight is applied to either side of the forward edge of the vehicle's roof. This is the same test procedure specified for passenger cars, with one exception. For passenger cars, the standard specifies applying a force of one and a half times the vehicle's unloaded weight or 5,000 pounds, whichever is less. As indicated above, the alternative 5,000 pound crush force limit that applies for passenger cars was not adopted for light trucks, buses, and MPVs.

During the rulemaking process that led to this extension of Standard No. 216, NHTSA received comments requesting that the agency consider modifying the roof crush resistance test procedure to accommodate the particular physical characteristics of some motor homes, vans and van conversions, including those with raised roofs. More specifically, some commenters including RVIA suggested that the specified test procedures could not be used to position the test device on some vehicles with raised roofs. Other commenters, especially Ford, questioned the need for a five-inch roof crush limitation for vehicles with full standing headroom and suggested that NHTSA consider relating the maximum roof crush requirement to the available occupant headroom.

After carefully evaluating these comments, NHTSA concluded that, based upon the available information, the roof crush resistance test procedure was practicable, met the need for motor vehicle safety, and was appropriate for MPVs, trucks, and buses, if those vehicles had a GVWR of 6,000 pounds or less. The issues identified by the commenters were significant primarily for such vehicles with a GVWR of more than 6,000 pounds. NHTSA acknowledged that it was possible that there could be some light trucks with a GVWR of 6,000 pounds or less that would experience the same problems with the specified roof crush resistance test procedure as larger vehicles would. However, the agency had no information showing that those difficulties would actually be experienced by particular light trucks with a GVWR of 6,000 pounds or less. See 56 FR 15514; April 17, 1991.

In your letter, you raised the same issues that had previously been raised in these comments; that is, you suggested that the test device could not be positioned properly on vehicles with a raised roof and that the five inch crush displacement limit was inappropriate for vehicles with a raised roof. As was the case with those comments, your letter did not provide any specific information identifying particular vehicles with a GVWR of 6,000 pounds or less whose physical characteristics would cause it to experience some particular compliance difficulties or testing difficulties.

If you have some information showing compliance or testing difficulties for actual light truck models with a GVWR of 6,000 pounds or less, we would appreciate it if you would forward that information to the agency. At this time, NHTSA is not aware of any compliance or testing difficulties for light trucks subject to the extended requirements of Standard No. 216. Absent such information, NHTSA has no basis for changing its previous conclusion about the specified test procedures and requirements.

Sincerely,

Paul Jackson Rice Chief Counsel

/ref:216 d:1/17/92

ID: 3277yy

William E. Kenyon
Mr. K's Original Headsaver
Patented Restraint Systems
6560 North Scottsdale Road, Suite H103
Scottsdale, AZ 85253

Dear Mr Kenyon:

This responds to your letter regarding a head restraint system your company is producing for use in pickup trucks with bench seats. You indicated that your company's head restraints meet or exceed the performance requirements specified in Standard No. 202, Head Restraints. As support for this statement, you enclosed with your letter an affadavit, in which you stated that you had tested your company's head restraint in accordance with Standard No. 202 and that the results of the testing showed that your company's head restraint complied with the performance requirements of Standard No. 202. Accordingly, you stated that you would like your company's head restraint system to be "federally approved as an after-market safety product." As I will explain in more detail below, this agency has no authority to approve, endorse, or offer assurances of compliance for any motor vehicle or item of motor vehicle equipment.

By way of background information, Section 103 of the National Traffic and Motor Vehicle Safety Act (Safety Act; 15 U.S.C. 1392) authorizes the National Highway Traffic Safety Administration (NHTSA) to issue Federal motor vehicle safety standards for new motor vehicles and new items of motor vehicle equipment. We have exercised this authority to establish Standard No. 202, Head Restraints (49 CFR 571.213), which applies to all new passenger cars, and all new trucks, buses, and multipurpose passenger vehicles with a gross vehicle weight rating of 10,000 pounds or less. I have enclosed a copy of Standard No. 202 for your information.

The Safety Act requires that all motor vehicles and motor vehicle equipment sold or imported into the United States comply with the safety standards adopted by NHTSA. Specifically, 108(a)(1)(A) of the Safety Act [15 U.S.C. 1397(a)(1)(A)] 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...

With respect to your company's product, please note that Standard No. 202 applies only to new motor vehicles and requires the motor vehicle manufacturer to certify that its vehicle complies with the standard. By its own terms, Standard No. 202 does not apply to head restraints as a separate item of motor vehicle equipment. Thus, the Safety Act does not require manufacturers of head restraints to certify that the head restraint complies with Standard No. 202 before selling the product.

Additionally, the Safety Act does not authorize NHTSA to certify or approve motor vehicles or items of motor vehicle equipment as complying with our standards. In this regard, the process for certifying compliance with 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 their products to a governmental entity for testing. After the governmental entity itself tests the product, the government approves the product for use and assigns it an approval code.

In place of this sort of process, section 114 of the Safety Act (15 U.S.C. 1403) establishes a self-certification process under which every manufacturer is required to certify that each of its products meets all applicable Federal safety standards. The manufacturer's certification need not be based on actual tests in accordance with the standard. United States law only requires that the manufacturer's certification be made with the exercise of "due care" on the part of the manufacturer. It is up to the individual manufacturer in the first instance to determine what test results, engineering analyses, computer simulations, or other information it needs to certify compliance with the applicable safety standards. Once the manufacturer has made this determination and certified its product in accordance with the applicable standard, it is free to offer the product for sale in the United States. The agency periodically tests vehicles and items of equipment that have been certified by the manufacturer to ensure that they do, in fact, comply with the safety standards. NHTSA also investigates alleged defects related to motor vehicle safety.

Although we do not have any safety standards that directly apply to your product, there are several provisions of the Safety Act that apply to the sale of aftermarket items of motor vehicle equipment. Manufacturers of motor vehicle equipment such as your head restraints are subject to the requirements in sections 151-159 of the Safety Act (15 U.S.C. 1411-1419) concerning the recall and remedy of products with defects related to motor vehicle safety. In addition, the use of aftermarket items could be affected by section 108(a)(2)(A) of the Safety Act (15 U.S.C. 1397(a)(2)(A)). That section prohibits any manufacturer, distributor, dealer, or repair shop from knowingly "rendering inoperative" any device or element of design installed on or in a vehicle in compliance with an applicable safety standard. The effect of this provision is to make it unlawful for any of the named commercial establishments to replace an original equipment head restraint with an aftermarket head restraint if the commercial establishment knows or should know that the switch to the aftermarket head restraint results in the vehicle no longer complying with Standard No. 202.

Finally, I have enclosed an information sheet which identifies relevant Federal statutes and NHTSA regulations affecting motor vehicle and motor vehicle equipment manufacturers. This information sheet also explains how to obtain copies of those regulations.

Sincerely,

Paul Jackson Rice Chief Counsel

Enclosures

/ref:202 d:1/15/92

ID: 32901.doc

Mr. Timothy A. Green
Attorney
Ford Motor Company
Office of the General Counsel
Suite 728 - Parklane Towers East
One Parklane Boulevard
Dearborn, Michigan 48126-2493

Dear Mr. Green:

This responds to your letter of July 24, 1996, concerning whether particular vehicles can be included within a certain company's fleet for CAFE purposes. The factual situation, which includes car companies, A and B, and an importer, C, can be summarized as follows:

Car company A is the single largest shareholder of car company B, holding over one third of the outstanding shares of B. Agreements between car company A and car company B stipulate that company A will have substantial influence over the design and production of vehicles manufactured by company B. Vehicles produced by company B are imported into the United States by company C. Company B is the single largest shareholder of C, with fifty percent of the outstanding shares of C.

You have asked whether you, as company A in the factual situation described above, can include the vehicles imported by company C in its fleet for CAFE purposes. As discussed below, it is our opinion that the answer is yes.

The following sections of Chapter 329 of Title 49 of the United States Code, "Automobile Fuel Economy" are relevant to answering your question:

32902(a)(4) "automobile manufactured by a manufacturer" includes every automobile manufactured by a person that controls, is controlled by, or is under common control with the manufacturer, but does not include an automobile manufactured by the person that is exported not later than 30 days after the end of the model year in which the automobile is manufactured.

32901(a)(12) "manufacture" (except under section 32902(d) of this title) means to produce or assemble in the customs territory of the United States or to import.

Company C imports vehicles produced by company B into the United States. While company C neither designs or produces these vehicles, C is their manufacturer for CAFE purposes. Company B, given its 50 percent ownership of company C and its control over the design and production of the vehicles, controls company C. The principal question, therefore, is whether company A "controls" company B to the extent that the cars imported by company C may be included in company A's CAFE fleet.

The term "control" as used in 32902(a)(4) is not defined elsewhere in Chapter 329 or the legislative history of the Chapter and its predecessor, the Motor Vehicle Information and Cost Savings Act. In past interpretations the agency has indicated that the term as used in the CAFE context may have the same definition as it has when used in a corporate law context. In the corporate law context, the issue of control is important for determining whether the controlling persons have violated any fiduciary duties to the corporation and other shareholders. Control in that sense refers to ownership of a large enough bloc of a company's stock to constitute effective voting control of the firm.

For the purposes of Chapter 329, control is important for determining a company's corporate average fuel economy and total production. For CAFE purposes, "control" is the ability to exercise a major influence over a company's average fuel economy and production. In addition to the ownership of a controlling bloc of stock, control for our purposes could be shown by control over the design and availability of certain models and other factors affecting production, sales mix and technological improvements.

Applying these terms to the facts presented by your letter compels the conclusion that cars imported by company C may be included in company A's fleet for CAFE purposes. Company C is controlled by company B. Company B is controlled by Company A by virtue of Company A's ownership of more than one-third of the outstanding shares of B and agreements between A and B indicating that A has the ability to exercise considerable influence over the design, production, and model mix of vehicles produced by B. Accordingly, NHTSA believes that it is appropriate for cars imported by C, a company controlled by B, to be included in A's fleet.

I hope that this letter is responsive to your inquiry. If you have any further questions or need additional information, please contact me or Otto Matheke of my staff at (202) 366-5263.

Sincerely,

John Womack

Acting Chief Counsel

ref:533

d:9/19/96

ID: 3296yy

William R. Willen, Esq.
Managing Counsel
Product Legal Group
American Honda Motor Co., Inc.
1919 Torrance Boulevard
Torrance, California 90501-2746

Dear Mr. Willen:

This responds to Honda's request for an interpretation of Federal Motor Vehicle Safety Standard No. 123, Motorcycle controls and displays. You stated that Honda is developing a braking system for motorcycles that would offer full proportioning front and rear when utilizing either the front hand control, or the rear control. You asked whether such a system would be permitted by the standard, particularly in light of section S5.2.1. As discussed below, such a braking system would be permissible under Standard No. 123.

By way of background information, the National Highway Traffic Safety Administration does not provide approvals of motor vehicles or motor vehicle equipment. Under the National Traffic and Motor Vehicle Safety Act, it is the responsibility of the manufacturer to ensure that its vehicles and equipment meet applicable requirements. The following represents our opinion based on the facts set forth in your letter.

S5.2.1, Control location and operation, includes the following language:

If a motorcycle is equipped with self-proportioning or antilock braking devices utilizing a single control for front and rear brakes, the control shall be located and operable in the same manner as a rear brake control.

Table 1 of Standard No. 123 provides that a rear wheel brake control must be a right foot control and must depress to engage. (Table 1 also includes an additional option that is not necessary to address in this letter.)

Since Honda's motorcycle would be equipped with a self-proportioning device utilizing a single control for front and rear brakes, it would be subject to this requirement. If Honda's "rear foot control" is one that is operated by the right foot and must be depressed to be engaged, that control would satisfy S5.2.1.

It is our interpretation that so long as one control meets the specified requirements for location and operation, additional controls serving the same purpose may be provided voluntarily by the manufacturer and need not meet those requirements. I note that this view is similar to a position taken in an April 26, 1983 interpretation letter to an addressee whose identity has been withheld for reasons of confidentiality. In that letter, the agency stated, in the context of discussing S5.2.1, that "[u]se of ... a self-proportioning device does not preclude additional brake actuation devices." I am, for your information, enclosing a copy of that letter. In the situation at issue, we would consider the front hand control on Honda's design to be an "additional brake actuation device," and therefore, not precluded by Standard No. 123.

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

Sincerely,

Paul Jackson Rice Chief Counsel

/ref:123 d:1/28/92

ID: 3297yy

Thomas A. Gerke, Esq.
Smith, Gill, Fisher & Butts
1200 Main St., Suite 3500
Kansas City, MO 64105-2152

Dear Mr. Gerke:

This responds to your December 23, 1991 letter concerning Safety Standard 107, Reflecting Surfaces. You asked us to confirm the interpretation of the standard set forth in my September 3, 1991 letter to Mr. Thomas Steinhagen. The interpretation is correct.

My letter to Mr. Steinhagen was about the applicability of Standard 107 to a replacement windshield wiper arm and blade, a type of motor vehicle equipment that your client, Rally Manufacturing, seeks to sell. You state that Rally ceased producing certain windshield wiper arms and blades after NHTSA's Enforcement office notified Rally that it appeared the products did not meet the requirements of Standard 107.

My letter to Mr. Steinhagen clarified the requirements of Standard 107 and the Vehicle Safety Act. I emphasized the following points in the letter:

1. Standard 107 applies to new motor vehicles, and not to items of motor vehicle equipment, such as a replacement wiper arm and blade. Replacement wiper arms and blades may be sold to consumers without violating Federal law, even if the component does not conform to the requirements of Standard 107.

2. Section 108(a)(2)(A) of the Safety Act prohibits any manufacturer, distributor, dealer or motor vehicle repair business from "rendering inoperative" any device or element of design installed in or on a vehicle in compliance with an applicable safety standard. If a person in the aforementioned categories installed a wiper arm and blade that did not conform to the requirements of Standard 107, the person would violate 108(a)(2)(A).

3. The prohibition of 108(a)(2)(A) does not apply to individual vehicle owners who alter their own vehicles. Thus, individual owners may install any item of motor vehicle equipment regardless of its effect on compliance with Federal motor vehicle safety standards. However, NHTSA encourages vehicle owners not to tamper with vehicle safety equipment if the modification would degrade the safety of the vehicle.

4. Regardless of whether Standard 107 applies to the replacement arm and blade, the device is subject to the requirements in 151-159 of the Safety Act concerning the recall and remedy of products with safety defects. If the manufacturer or NHTSA determines that a safety-related defect exists either in an arm and blade that conforms to Standard 107 or in one that does not, the manufacturer must notify purchasers of the product and remedy the problem free of charge.

In your letter, you specifically ask about the sale of a replacement wiper blade "by a wholesaler/distributor to retail stores and other similar customers without any installation service by the wholesaler/distributor." The sale is not prohibited by Standard 107 or 108(a)(2)(A). However, the retail store or "other similar customer" would be considered a dealer under 102(7) of the Safety Act, and thus subject to the "render inoperative" prohibition of 108(a)(2)(A). While the dealer may sell the replacement blade, the dealer would be prohibited from installing it on a motor vehicle.

I regret any confusion resulting from NHTSA's letters to your client. If you have further questions, please do not hesitate to contact my office.

Sincerely,

Paul Jackson Rice Chief Counsel

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