ID: nht93-1.47

DATE: 02/23/93

FROM: JOHN WOMACK -- ACTING CHIEF COUNSEL, NHTSA

TO: JAMES E. SCHLESINGER -- SCHLESINGER, ARKWRIGHT & GARVEY

TITLE: NONE

ATTACHMT: ATTACHED TO LETTER DATED 12-23-92 FROM JAMES E. SHLESINGER TO WALTER MYERS (OCC 8159)

TEXT: This responds to your letter addressed to Walter Myers of this office, requesting an opinion concerning the Uniform Tire Quality Grading Standards (UTQGS).

You stated in your letter that two tire manufacturers, A and B, both with production facilities in both Canada and the United States, produced tires for a brand name owner, Company C, in Canada. A, B, and C agreed that in the event of overproduction or if some of the tires were "blems" (Company C refuses to accept blems, which are tires with minor cosmetic blemishes but structurally sound), A and B were free to market their tires elsewhere, including the United States. The tires manufactured for Company C contain the DOT number and the Canadian National Tire Safety Mark, but not the UTQGS information, which is not required in Canada. You stated that over a period of 1 1/2 years, A imported 10,622 tires into the United States while B imported 12,856 tires, including 4,644 blems, into the country. All were passenger tires and all sales occurred in 1990 and 1991. You then posed three questions based on those facts, which I will answer below in the order presented.

First, by way of background information, under the National Traffic and Motor Vehicle Safety Act of 1966 (15 U.S.C. @@ 1381) et seq., as amended (hereinafter Act), the National Highway Traffic Safety Administration (NHTSA) is authorized to issue Federal motor vehicle safety standards applicable to all new motor vehicles and items of new motor vehicle equipment, which includes tires. Section 203 of the Act (15 U.S.C. @ 1423) directs the Secretary to prescribe, through standards established under Title I of the Act, a uniform quality grading system for motor vehicle tires. NHTSA issued the UTQGS under the authority of @ 203 and @ 112(d) (15 U.S.C. @ 1401(d)), which authorizes the Secretary to require manufacturers to provide performance and technical data to the first purchasers of motor vehicle equipment for purposes other than resale. The UTQGS may be found at 49 CFR @ 575.104.

The penalties for violation of the UTQGS are set forth in the Act. Section 108(a) (1) (E) of the Act (15 U.S.C. @ 1397(a) (1) (E)) prohibits any failure to comply with any rule, regulation, or order issued under @ 112. Sanctions for violation of @ 108 are set forth in @ 109 of the Act (15 U.S.C. @ 1398(a)), which provides civil penalties of up to $1,000 for each violation of @ 108, up to a total maximum civil penalty of $ 800,000 for "any related series of violations." In addition, @ 110(a) of the Act (15 U.S.C. @ 1399(a)) gives U.S. district courts the jurisdiction to restrain any violation of Title I of the Act, or any rule, regulation, or order issued thereunder, which include the UTQGS.

With that background in mind, I turn now to your specific questions: 1. Is it unlawful to import, sell or distribute in the United States tires which do not have the UTQG information on the sidewall of the tire and/or on the paper tread label for the tire?

ANSWER: Subject to the exceptions discussed in the answer to your question No. 3 below, 49 CFR 575.6(b) provides that:

At the time a motor vehicle tire is delivered to the first purchaser for a purpose other than resale, the manufacturer of that tire or, . . . the brand name owner, shall provide to that purchaser the information specified in Subpart B of this part that is applicable to that tire.

Subpart B includes @575.104 which, at (d) (1) (i) (A), requires that the UTQG information be molded onto or into the tire sidewall. Where a new tire line is introduced into the United States for the first time, however, the tire manufacturer or brand name owner may, for the first six months after the tire's introduction, provide the UTQG information by means of a paper label affixed to the tread surface of the tire. After that six-month grace period, the required information must be molded onto or into the tire sidewall.

Although both the Act and the UTQGS are silent as to whether tires can be imported or distributed without the UTQGS information, there would be no point in doing so since the tires cannot legally be sold without that information.

2. If it is unlawful to import, distribute and sell tires in the United States without said UTQG information, what penalties are imposed on the manufacturer and/or brand name owner?

ANSWER: As discussed above, civil penalties of up to $ 1,000 for each violation of @ 575.6(b) may be imposed, up to a maximum of $ 800,000. In addition, U.S. district courts have jurisdiction to restrain any such violations.

3. Would any of the exceptions of 49 CFR @ 575.104(c) apply in this case, and, if so, in what way? Is there any legislative history or interpretation of the meaning of "limited production tires" as noted in this section, and what effects, if any, this limitation might have on the above fact situation?

ANSWER: 49 CFR @ 575.104(c) provides that the UTQGS apply to new pneumatic passenger car tires. The standards do not apply, however, to deep tread, winter type snow tires, space-saver or temporary use spare tires, tires with nominal rim diameters of 10 to 12 inches, or "limited production" tires. In order to qualify as a limited production tire, @ 575.104(c) (2) establishes four criteria, all of which the tires must meet:

(i) The manufacturer's annual domestic production or importation into the U.S. of tires of the same size and design as the tire does not exceed 15,000 tires;

(ii) The annual domestic purchase or importation by a brand name owner into the U.S. of tires of the same size and design as the tire does not exceed 15,000 tires;

(iii) The tire's size was not listed as a vehicle manufacturer's recommended tire size designation for a new motor vehicle produced in or imported into the U.S. in quantities greater than 10,000 during the calendar year preceding the year of the tire's manufacture; and

(iv) The total annual production or importation into the U.S. by the manufacturer or, if the tire is marketed under a brand name, the total annual domestic purchase or purchase for importation into the U.S. by the tire's brand name owner, of tires meeting the criteria of (i), (ii), and (iii) above, does not exceed 35,000 tires.

Section 575.104(c) also states that "tire design" is "the combination of general structural characteristics, materials, and tread pattern, but does include cosmetic, identifying or other minor variations among tires."

The factual scenario you described in your letter would suggest that the tires in question might meet the numbers criteria of (c) (2) (i) and (ii), but there is not sufficient information on which to base an opinion as to whether they meet the other two criteria. There is likewise insufficient information to determine whether the exceptions relating to deep tread, winter-type snow tires, space-saver or temporary use spare tires, or tires with nominal rim diameters of 10 to 12 inches may apply to any or all the tires in question. The manufacturer(s) seeking to import those tires into the U.S. must make those determinations.

For your additional information, I am enclosing a copy of 45 FR 23442, dated April 7, 1980, the final rule which initially exempted limited production tires from the UTQGS. That notice explains the rationale for exempting limited production tires and other background information you may find helpful.

I hope the above information will be of assistance to you. Should you have any further questions or need additional information regarding this matter, please feel free to contact Walter Myers at this address or at (202) 366-2992.

ID: nht93-1.48

DATE: 02/23/93

FROM: JOHN WOMACK -- ACTING CHIEF COUNSEL, NHTSA

TO: RICHARD LANGLAIS -- PRELCO INC.

TITLE: NONE

ATTACHMT: ATTACHED TO LETTER DATED 12-7-92 FROM RICHARD LANGLAIS TO MARVIN SHAW (OCC 8067); ALSO ATTACHED TO LETTER DATED 11-26-91 FROM KATHLEEN DEMETER TO RICHARD LANGLAIS

TEXT: This responds to your December 7, 1992, inquiry requesting information about the agency's requirements set forth in 49 CFR @ 551.45, Service of Process; Agents. In a November 26, 1991, letter to you, Ms. Kathleen DeMeter, NHTSA's Assistant Chief Counsel for General Law, sent you a letter explaining your responsibilities pursuant to @ 551.45. You now have some additional questions related to Ms. DeMeter's letter. I am pleased to have this opportunity to respond to your additional questions.

As our earlier letter explained, @ 551.45 sets forth this agency's requirements as they relate to the service of process on non-American manufacturers and importers. One such requirement provides that you must send a declaration of acceptance duly signed by the agent appointed and that agent must be a permanent resident of the United States. The agent may be an individual, a firm, or a U.S. corporation. You asked who could be appointed as your agent and whether we would recommend some agents or firms which specialize in this kind of service.

With respect to your first question, any individual, firm, or United States corporation may be an agent provided that it is a permanent resident of this country. With respect to your second question, this agency does not recommend or endorse entities which may serve as an agent. Nevertheless, the National Glass Association, a trade association whose members include automotive glass manufacturers, may be able to assist you. It is located at 8200 Greensboro Drive, Suite 302, McLean Va 22102, and its telephone number is (703) 442-4890. I hope this information is helpful. If you have any further questions about NHTSA's safety standards, please feel free to contact Marvin Shaw of my staff at this address or by telephone at (202) 366-2992.

ID: nht93-1.49

DATE: 02/24/93

FROM: JOHN WOMACK -- ACTING CHIEF COUNSEL, NHTSA

TO: WILLIAM R. WILLEN -- MANAGING COUNSEL, PRODUCT LEGAL GROUP, AMERICAN HONDA MOTOR CO., INC.

TITLE: NONE

ATTACHMT: ATTACHED TO LETTER DATED 12-7-92 FROM WILLIAM R. WILLEN TO PAUL JACKSON RICE (OCC 8112)

TEXT: This responds to your letter of December 7, 1992 requesting an interpretation of the definition of "designated seating position" in 49 CFR Section 571.3. You request confirmation of your belief that a proposed Honda seat design would have two designated seating positions. For the proposed design, "(t)he hip room is 44.2 inches over the length of the seat, and the seat width is only 39 inches. The seat is flat and does not have stiff inboard seat belt receptacles."

The term "designated seating position" is defined at 49 CFR @ 571.3 as:

any plan view location capable of accommodating a person at least as large as a 5th percentile adult female, if the overall seat configuration and design is such that the position is likely to be used as a seating position while the vehicle is in motion, except for auxiliary seating accommodations such as temporary or folding jump seats. Any bench or split-bench seat in a passenger car, truck or multipurpose passenger vehicle with a GVWR less than 10,000 pounds, having greater than 50 inches of hip room (measured in accordance with SAE Standard J1100 (a)) shall have not less than three designated seating positions, unless the seat design or vehicle design is such that the center position cannot be used for seating.

If the seat has only 44.2 inches of hip room, the seat would probably qualify as having only two seating positions, since this value is below the 50-inch specification in the definition of "designated seating position." Please note, however, that the 50-inch specification does not mean that some vehicle seats with less than 50 inches of hip room should not also have more than two designated seating positions if the vehicle and seat design is such that three positions would likely be used. The specification is merely the amount of space the agency will consider as conclusive evidence that there should be at least three designated seating positions.

You ask if our answer would be different if fixed or movable armrests were provided. A fixed armrest does affect the measurement of designated seating position, since a fixed armrest would impede a person from sitting in the center position. NHTSA has stated in the preamble to the rule adopting the definition of designated seating position that the space occupied by a fixed, stationary armrest "would not be considered hip room and would not be included in the measurement of the 50-inch limitation." 44 FR 23229; April 19, 1979. A fixed armrest on your seat would show your intent that the position is not intended to be used as a seat.

Your letter also asked if the interpretation would be different if the seat width was greater than 39 inches. The number of designated seating positions is determined by the hip room, therefore, if the hip room remained the same, the seat would have the same number of designated seating positions even if the seat width was increased. Finally, you asked if the interpretation would be different if the seat were installed in a wider vehicle or positioned differently in the vehicle. Again, those modifications would only require an increase in the number of designated seating positions if the hip room were increased by these changes.

Finally, I emphasize that this letter only represents the agency's opinion based on the information supplied in your letter. NHTSA does not pass approval on any vehicle design, prior to the actual events that underlie certification. It is up to the manufacturer to determine whether its vehicles comply with all applicable safety standards and regulations, and to certify its vehicles in accordance with that determination.

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

ID: nht93-1.5

DATE: January 8, 1993

FROM: Paul Jackson Rice -- Chief Counsel, NHTSA

TO: Eugene Berk -- Food and Drug Administration, Center for Devises and Radiological Health, Office of Compliance and Surveillance

TITLE: None

TEXT:

This follows up on telephone conversations between you and Deirdre Fujita of my staff about a letter you received from the Medical Device Inspection Company (MDI) concerning the "Tumble Forms LifeSeat." While much of the information in the letter is subject to a claim of confidentiality, Ms. Carolann Kotula-Cook of MDI told us that we can provide, for purposes of a letter that will be placed in the public docket, the following description of the LifeSeat. The LifeSeat is described by MDI as "a safety seat designed to protect children who are riding in emergency medical vehicles. The seat is designed to be secured to the ambulance stretcher or cot... (and) may also be secured to the vehicle's captain's chair." You ask whether the LifeSeat is a "child restraint system" regulated by Federal Motor Vehicle Safety Standard No. 213, "Child Restraint Systems." As discussed below, the answer is yes.

Standard No. 213 specifies requirements for child restraint systems used in motor vehicles and aircraft, to reduce the number of children killed or injured in motor vehicle crashes and in aircraft. The term "child restraint system" is defined in S4 of the standard as "any device except Type I or Type II seat belts, designed for use in a motor vehicle or aircraft to restrain, seat, or position children who weigh 50 pounds or less." As described in MDI's letter, the LifeSeat meets the child restraint system definition, since it is designed to restrain or seat a child in a motor vehicle. Under the National Traffic and Motor Vehicle Safety Act, each child restraint system that is sold in or imported into the United States must be certified as complying with Standard No. 213. Since the LifeSeat is a child restraint system, it must be certified as complying with Standard No. 213.

We informed Ms. Kotula-Cook that it appears the LifeSeat would not comply with some of Standard No. 213's requirements. We have sent her a copy of the standard, and an information sheet for manufacturers of motor vehicles and motor vehicle equipment. The information sheet describes manufacturers' responsibilities under Federal law for manufacturing vehicles and items of equipment, such as the responsibility to ensure these products do not have any safety-related defects. Ms. Kotula-Cook said that MDI will be contacting us directly for more information about Standard No. 213 and these responsibilities.

We are returning the copy of MDI's letter you provided us. If you have any questions, please call Ms. Fujita at (202) 366-299.

ID: nht93-1.50

DATE: February 26, 1993

FROM: Vincent Schulze -- Chief, Motor Carrier Inspection and Investigation, State of New Jersey, Department of Transportation

TO: Ron Havelar -- Office of Motor Carrier Standards, Federal Highway Administration

COPYEE: D. Webb

TITLE: RE: FMVSS No. 217 Bus Emergency Exits MC 83-93

ATTACHMT: Attached to letter dated 6-2-93 from John Womack to Vincent Schulze (A41; Std. 217).

TEXT: Questions have arisen as to the interpretation of a position of FMVSS 217 pertaining to emergency exits on buses.

This office has always defined an emergency exit on a bus as a window or door that must open PERPENDICULAR to the surface of a bus, such as a car door, for example.

A bus company has presented a bus to this Department for inspection which has side windows that SLIDE OPEN as opposed to opening PERPENDICULAR to the bus surface. This office has rejected the bus for not meeting the requirements of FMVSS 217 (S5.4) which states that the push-out window or other emergency exit shall ... be manually extendable .....

My question is this -- can a bus meet the requirements of FMVSS 217 by having side sliding windows?

Thank you for your anticipated response.

ID: nht93-1.6

DATE: January 13, 1993 EST

FROM: Paul Jackson Rice -- Chief Counsel, NHTSA

TO: Guy Boudreault

TITLE: None

ATTACHMT: Attached to letter dated 11/01/92 (EST) from Guy Boudreault to U.S. Dept. of Transportation; U.S. Senate Committee on Science, Commerce & Transportation; U.S. NHTSA; National Transportation Safety Board; U.S. Office of Motor Carriers

TEXT:

This responds to your letter expressing concerns about certain working conditions that you have experienced as a driver of a commercial vehicle, and asking about rules and regulations that apply to the adjustment of brakes on commercial vehicles. I am pleased to have this opportunity to respond to you.

By way of background information, this agency, the National Highway Traffic Safety Administration, is authorized by the National Traffic and Motor Vehicle Safety Act to issue Federal motor vehicle safety standards applicable to new motor vehicles and motor vehicle equipment. We have issued a number of safety standards that apply to heavy vehicles, including ones on brakes and lighting. This agency does not have the authority to regulate the use of motor vehicles.

Your letter concerns in-service safety requirements for commercial vehicles and drivers, rather than safety requirements that apply to new motor vehicles. Within the U.S. Department of Transportation, the Federal Highway Administration, Office of Motor Carriers, has the authority to issue motor carrier safety regulations for interstate motor carriers and drivers. Ordinarily I would refer your letter to that agency; however, your letter indicates that you sent the same letter to the Office of Motor Carriers as you sent to this agency.

I hope this information is helpful. If you have any questions about NHTSA's safety standards, please feel free to contact Marvin Shaw of my staff at this address or by telephone at (202) 366-2992.

ID: nht93-1.7

DATE: 01/13/93

FROM: JAMES L. VASKO

TO: NHTSA

TITLE: NONE

ATTACHMT: ATTACHED TO LETTER DATED 2-11-93 FROM JOHN WOMACK TO JAMES L. VASKO (A40; STD. 108)

TEXT: Brake lights are a very important part of the automobile. I have a Patent Pending on an invention called "FRONT BRAKE LIGHT SYSTEM". By utilizing the present turn signal lights without necessity and expense of adding new, complicated aparatus, but utilizes only the present lights and circuitry to notify the driver and or pedestrian in front of the vehicle that the vehicle is in braking mode.

My 23 years experience as a Fremont Firefighter has proven over and over again, if this has been incorporated in all vehicles 30 years ago, thousands of accidents, injuries and deaths could have been prevented, not to mention, the millions of dollars Insurance Companies would have saved.

I am interested in opening a dialogue with you and I will answer any questions you may have. This system will make driving safer and more predictible for every one, and we will be saving our own family and friends lives daily.

The "FRONT BRAKE LIGHT SYSTEM" IS A WIN WIN SITUATION, MEANING, A WIN FOR THE CONSUMER, AUTOMAKER AND INSURANCE COMPANY. As it stands now, embodiments suggested by other patents in the field are expensive and require considerable hardware compared to my state of the art simple method.

Looking forward to your response.

ID: nht93-1.8

DATE: January 13, 1993

FROM: John B. White -- Industry Standards & Government Regulations, Michelin

TO: General Counsel -- NHTSA

COPYEE: P. Jones -- Michelin

TITLE: None

ATTACHMT: Attached to letter dated 4-27-93 from John Womack to John B. White (A41; Std. 109; Std. 119)

TEXT: From time to time we receive requests from various customers or potential customers for copies of the tests that we performed to certify that our tires comply with Federal Motor Vehicle Safety Regulations. Implied in these requests is that NHTSA requires manufacturers to perform the tests contained in the various standards (FMVSS 109, 119 and Part 575) in order to comply with those standards. Furthermore, some of these requests, including one recently from the Department of Defense, have indicated that these test results, along with test tires, are submitted to NHTSA who then provides the certification.

We would appreciate it if you would clarify this situation.

Your prompt reply will be appreciated.

ID: nht93-1.9

DATE: January 14, 1993

FROM: Jay Lee -- President, Pacific Agritrade Inc.

TO: Jackson Rice -- NHTSA, Department of Transportation

TITLE: None

ATTACHMT: Attached to letter dated 3-26-93 from John Womack to Jay Lee (A40; Std. 208; VSA 108(a)(2)(A))

TEXT: We would like to import air bags for cars and light trucks from Korea. This air bag can be installed very easily and we are interested in having this product tested by your department.

Please advise us on what procedures we need to take to have this product tested and approximately how long it will take.

We are also interested in knowing what we can claim after we pass your tests.

ID: nht93-2.1

DATE: 03/01/93

FROM: THOMAS C. BALOGA -- MANAGER, SAFETY ENGINEERING, MERCEDES - BENZ

TO: JOHN WOMACK -- ACTING CHIEF COUNSEL, NHTSA

COPYEE: JERRY SONOSKY -- HOGAN & HARTSON

TITLE: LONGER SEAT BELT FOR OVER-SIZE MERCEDES-BENZ OWNER

ATTACHMT: ATTACHED TO LETTER DATED 3-10-93 FROM JOHN WOMACK TO THOMAS C. BALOGNA (A40; VSA 108 (a)(2)(A); STD. 209)

TEXT: This refers to my telephone discussion with Ed Glancy on March 1, 1993 concerning a longer seat belt.

Mercedes-Benz of North America, Inc. has been contacted by the owner of a Mercedes-Benz car who cannot use the driver-side seat belt because of his large body size (approx. 500 lbs). Since our special order 12 inch longer belt is still too short, our factory has supplied a 30 inch longer-than-standard seat belt for installation in this man's car. The extra-long belt assembly will not comply with the following aspects of Standard 209:

- seat belt will not completely roll-up into B-pillar due to excessive webbing on spool;

- seat belt not tested for retraction spring durability therefore may not pass the retractor cycle test;

- no certification label is attached.

We ask that you please advise us as soon as possible whether NHTSA will, under these circumstances, exercise appropriate discretion in non-enforcement of Standard 209 for this special seat belt installation. This discretion would be similar to Chief Counsel interpretations concerning non-enforcement of Standards when special equipment for handicapped drivers is installed. Without this action from you, the man will not be protected by a seat belt. We know that requests for extra long seat belts are likely to continue and we ask that you please advise us whether Mercedes-Benz of North America, Inc. needs to advise you of each and every special installation or whether it is sufficient for us to keep appropriate records of the VIN etc. It is our intention to advise the owner to have the original belt re-installed before selling the car.

Thank you for your quick response.