ID: 18571-a.wkm

Geffrey W. Anderson, Esq.
Howell, Dorman, Anderson, Berg & Smyer, L.L.P.
Attorneys at Law
University Center 1, Suite 110
1300 South University Drive
Fort Worth, TX 76107

Dear Mr. Anderson:

Your letter and its enclosed product addressed to Mr. James Jones of this agency was forwarded to this office for response.

Your letter enclosed a product called the Air Blow Gun (ABG), manufactured by Barjan Products of East Moline, IL. The ABG is described as a length of 11.5-foot coiled 1/4 inch vinyl tubing with brass fittings on either end and a lever-type blow gun. The ABG attaches to the vehicle's compressed air system which supplies compressed air for its air brake system. When attached to the air system, it can be used to clean various surfaces with air pressure. The ABG's container carries the notation "D.O.T. approved." You stated that your client is concerned about this product's claim that it is "D.O.T. approved," and asked whether it is in fact approved by the US Department of Transportation and whether or not such representation constitutes false advertisement.

By way of background information, the National Highway Traffic Safety Administration (NHTSA), by delegation from the Secretary of Transportation, has the statutory authority to issue Federal motor vehicle safety standards (FMVSS) applicable to new motor vehicles and new items of motor vehicle equipment (49 U.S.C. Chapter 301). That statutory scheme establishes a self-certification system under which motor vehicle and equipment manufacturers themselves certify that their products comply with all applicable FMVSSs. Most of the FMVSSs that apply to motor vehicle equipment require such equipment to be certified by the manufacturer. That certification is often shown by marking the product itself with the letters "DOT." NHTSA enforces compliance with the standards by purchasing and testing motor vehicles and equipment. The agency also investigates safety-related defects. If NHTSA or the manufacturer finds that a vehicle or item of equipment does not comply with applicable standards or is found to have a safety-related defect, the manufacturer is responsible for remedying the defect or noncompliance at no charge to the customer. Thus, NHTSA neither approves, disapproves, endorses, tests, nor grants clearances for products prior to their introduction into the retail market.

Turning now to the ABG, we would classify it as an item of motor vehicle equipment, which is defined in 49 U.S.C. 30102(a)(7)(B) as any "part or component manufactured or sold for replacement or improvement of a system, part, or component, or as an accessory or addition to a motor vehicle." The ABG would be classified as an accessory if it meets the following two tests:

a. A substantial portion of its expected uses are related to the operation and/or maintenance of a motor vehicle; and

b. It is purchased or otherwise acquired, and principally used, by ordinary users of motor vehicles.

After reviewing the product and the information on its container, we conclude that the ABG is an accessory. While the ABG is a motor vehicle accessory, NHTSA has not issued any FMVSSs establishing performance standards applicable to this particular product. Thus, it is not required to be certified or marked with the "DOT" symbol.

The notation "D.O.T. approved" appears in four places on the ABG's container. As pointed out above, NHTSA does not approve motor vehicle equipment or accessories, nor can the phrase "D.O.T. approved" be interpreted as the manufacturer's certification of compliance with applicable FMVSSs.

We appreciate your advising us of this matter. We will contact Barjan Products, the manufacturer of the ABG, with a view to resolving the situation.

I hope this information is helpful to you. Should you have any further questions or need additional information, feel free to contact Walter Myers of my staff at this address or at (202) 366-2992, or by fax at (202) 366-3820.

Sincerely,
Frank Seales, Jr.
Chief Counsel
ref: #121#VSA
d.3/23/99

ID: 18571-b.wkm

Barjan Products
2751 Morton Drive
East Moline, IL 61244

Dear Sir/Madam:

It has come to our attention that your company manufactures a product called the Air Blow Gun (ABG), which is described as a length of 11.5-foot coiled 1/4 inch tubing with brass fittings on either end and a lever-type blow gun. The ABG attaches to the vehicle's compressed air system which supplies compressed air for its braking system. When attached to the air system, it can be used to clean various surfaces with air pressure. The ABG's container carries the notation "D.O.T. approved" in four places.

By way of background information, the National Highway Traffic Safety Administration (NHTSA), by delegation from the Secretary of Transportation, has the statutory authority to issue Federal motor vehicle safety standards (FMVSSs) applicable to new motor vehicles and new items of motor vehicle equipment (49 U.S.C. Chapter 301). That statutory scheme establishes a self-certification system under which motor vehicle and equipment manufacturers themselves certify that their products comply with all applicable FMVSSs. Most of the FMVSSs that apply to motor vehicle equipment require such equipment to be certified by the manufacturer. Where required, that certification is often shown by marking the product itself with the symbol "DOT." NHTSA enforces compliance with the standards by purchasing and testing motor vehicles and equipment. The agency also investigates safety-related defects. If NHTSA or the manufacturer finds that a vehicle or item of equipment does not comply with applicable standards or is found to have a safety-related defect, the manufacturer is responsible for remedying the defect or noncompliance at no charge to the customer. In carrying out its functions, consistent with the self-certification aspects of the program, NHTSA does not approve, disapprove, endorse, test, or grant clearances for products prior to their introduction into the retail market.

Turning now to the ABG, we would classify it as an item of motor vehicle equipment, which is defined in 49 U.S.C. 30102(a)(7)(B) as any "part or component manufactured or sold for replacement or improvement of a system, part, or component, or as an accessory or addition to a motor vehicle." The ABG would be classified as an accessory if it meets the following two tests:

a. A substantial portion of its expected uses are related to the operation and/or maintenance of motor vehicles; and

b. It is purchased or otherwise acquired, and principally used, by ordinary users of motor vehicles.

After reviewing the product and the information on its container, we conclude that the ABG is an accessory. It was obviously designed and is being marketed with the expectation that a substantial portion of its expected use will be in or on motor vehicles. Further, it would appear that the ABG is intended to be purchased and principally used by ordinary users of motor vehicles, specifically vehicles equipped with air brake systems, as opposed to professional vehicle repair personnel, since its stated purpose is "for fast and easy cleaning," using the vehicle's own compressed air supply. Motor vehicle repair businesses can be expected to have their own air supply.

While the ABG is a motor vehicle accessory, NHTSA has not issued any FMVSSs establishing performance standards applicable to this particular product.⁽¹⁾ Thus, under the certification provisions, certifying or marking the ABG with the "DOT" symbol is not warranted. Nevertheless, you, as the manufacturer, are subject to the requirements of 49 U.S.C. 30118 - 30120, which set forth the notification and remedy procedures for products with defects related to motor vehicle safety.

As stated above, NHTSA does not approve motor vehicle equipment or accessories. The phrase "D.O.T. approved," where there are no applicable FMVSSs, is a false certification in violation of 49 U.S.C. 30115 and could be misleading to the public. Accordingly, the notation "DOT approved" must be removed from the product's container and any other promotional literature or information pertaining to this product.

I hope this information is helpful to you. Should you have any questions or need additional information, feel free to contact Walter Myers of my staff at this address or at (202) 366-2992, or by fax at (202) 366-3820.

Sincerely,
Frank Seales, Jr.
Chief Counsel
ref:121#VSA
d.3/23/99

1. FMVSS No. 121. Air brake systems, specifies performance and equipment requirements for braking systems on motor vehicles that are equipped with air brake systems. The standard does not address the use of air pressure from the brake air supply for other purposes, such as use of the ABG for cleaning, but doing so could affect the vehicle's compliance with the air brake standard. Further, if the ABG is permanently integrated into the vehicle's compressed air supply system, as opposed to being attached and detached as needed, the ABG could be subject to FMVSS No. 106, Brake hoses. It could be subject to the brake hose standard if it transmits or contains the brake air pressure used to supply force to a vehicle's brakes, or stated another way, if a failure of the hose would result in a loss of air pressure in the brake system. In such a case, the ABG would be a brake hose and must comply with FMVSS No. 106. If a check valve or other device is used to prevent loss of pressure, however, then the ABG would not contain or transmit the vehicle's brake air pressure and would not be required to comply with the brake hose standard.

ID: 18574caps.etc

Ms. Annemarie Shelness
Shelness Productions
P.O. Box 30456
Winston-Salem, NC 27130-045

Dear Ms. Shelness:

This responds to your letter and telephone call asking about the labeling requirements in Federal Motor Vehicle Safety Standard No. 213, "Child Restraint Systems" (49 CFR 571.213) for add-on child restraints. I apologize for the delay in responding.

You ask whether the warnings and other information required by S5.5.1 and S5.5.2 of Standard 213 may be changed by: (1) rewording some of the required text; (2) adding text and WARNING headings; and (3) using upper and lower case letters for text printed in the standard in all capital letters. We will address those questions below, and have enclosed copies of the letters we reference in our answers.

Rewording Required Text

You have proposed to reword the text in two ways. First, S5.5.2(e) of the standard requires manufacturers to include the statement: "This child restraint system conforms to all applicable Federal motor vehicle safety standards." You would like to reword this statement, and combine it with another required statement, to read: "This product fulfils the requirements of the U.S. Federal Motor Vehicle Safety Standard 213 and is certified for use in motor vehicles and for use in aircraft." Second, S5.5.2(g) requires the statement: ". . . Secure this child restraint with a vehicle belt as specified in the manufacturer's instructions located __________." You have reworded this by, among other things, not specifying the location of the printed instructions here, but have moved that information elsewhere.

We have carefully considered your suggestion and regret to inform you that we cannot, by interpretation, permit your proposed rewording of the required statements.

Paragraph S5.5 of Standard 213 requires child restraints to be permanently labeled with certain information, including specific statements provided in quotations in the standard. The agency's longstanding position is that the wording on child restraint labels must be as specified in S5.5, with very limited exceptions. We have permitted certain minor variations that clarified text and did not make any substantive change in the meaning of the warning specified for the label. (See, e.g., copy of December 18, 1980, letter to Ford Motor Company, changing the word form from the plural "instructions" to the singular "instruction." This change allowed the specified language to be clarified by making it more appropriate for child restraints that had a single instruction pertaining to a particular feature.) All in all, we have taken a strict view that the wording required by Standard 213 may not be altered.

The rewording you have done to the specified text is not minor. Our position is that changes of this nature to the specified text cannot be permitted.

Adding Text and Headings

You also wish to add text and headings to the labeling specified by Standard 213. For example, you wish to add the statements: "Please read and understand the information in this booklet before using your infant restraint. Store the booklet in the plastic pocket located in the back of the restraint, just above the rocker base. Consult it often to make sure you are using the restraint correctly. . . . In a severe crash your child could . . . be ejected from the vehicle into the roadway." You also propose to add headings in the label, such as one stating "WARNING" with an alert symbol (a triangle with an exclamation point inside), highlighted on a bright yellow background, and others (in bold and not on a yellow background) stating "For Your Information" and "Your Child's Protection is in Your Hands."

Your added text would be permitted. NHTSA has permitted manufacturers to provide information in addition to the required information, provided that the additional information is presented in a manner that is not likely to obscure or confuse the meaning of the required information or otherwise defeat its purpose. (See copy of April 17, 1989 letter to Cosco, Inc., permitting manufacturers to express required information in equivalent English and metric units.) Your added text does not appear likely to have those negative impacts on the required information, and thus would be permitted.

We generally note, however, that the yellow highlighted WARNING heading should be used judiciously so as not to dilute its eye-catching impact. A yellow highlighted WARNING heading with the alert symbol you use is required for the air bag warning label that must be placed on rear-facing child restraint systems. The yellow highlighted WARNING heading and alert symbol are required for that label to attract the reader's attention and prevent rear-facing restraints from being used in seating positions with air bags. If the heading were overly used, the impact of the air bag warning label could be diluted and its effectiveness reduced. Manufacturers are advised to refrain from overusing the yellow highlighted WARNING heading and alert symbol.

Using Upper and Lower Case Letters

You wish to use upper and lower case letters in labeling that is set forth in Standard 213 in all capital letters. We conclude capitalization is not generally required if not expressly required, and that upper and lower case letters are permitted. A 1978 rulemaking notice had proposed to require the lettering to be in "block letters" and had set forth the required text in all capital letters. The agency stated in the preamble to the December 13, 1979, final rule following the proposal that it was not requiring the block letters and was permitting the labeling to be in upper and lower case lettering (44 FR 72134).⁽¹⁾ Thus, while the wording is shown in capital letters in the standard, we conclude that Standard 213 does not require that the messages be capitalized.

We note that there have been interpretations since the 1979 rule that have interpreted Standard 213 as requiring warnings to be capitalized because they are set forth in Standard 213 in capitalized letters (e.g., preamble to a February 16, 1994, final rule concerning labeling add-on restraints). The agency has also stated its belief that safety messages in capitalized letters were more likely to be noticed and read. However, in concluding that the warnings had to be capitalized, the agency did not account for the statements in the preamble to the 1979 rule that indicated that upper and lower case lettering could be provided as an option to capitalized letters. To the extent the previous interpretations requiring capitalization are inconsistent with today's letter, those interpretations are superceded. Note, however, that where Standard 213 expressly requires capitalized letters, using lower case letters is not an option (e.g., manufacturer's restrictions on adjustment positions for built-in restraints must be capitalized under S5.5.5(g)(2) of the standard).

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

Sincerely,
Frank Seales, Jr.
Chief Counsel
Enclosure
ref:213
d.5/4/99

1. That notice pertained to labeling for add-on restraints, required by what is now S5.5.2(a) through (k), but did not include S5.5.2(i) or the air bag warning labels required by S5.5.2(k). Those requirements were adopted at a later date.

ID: 18577.drn

Lawrence A. Beyer, Esq.
674 Lake Road
Webster, NY 14580

Dear Mr. Beyer:

This responds to your request for an interpretation whether Standard No. 122, Motorcycle Brake Systems permits a motorcycle to meet the stopping distance requirements of S5.3 and S7.8.1 through means other than hydraulic or air service braking systems. The answer to your question is yes, the motorcycle must meet the stopping distance requirements, but Standard No. 122 does not specify the particular braking system that must be used.

In your letter, you explained that your client, S-Lemma Inc. is in the process of certifying an electric motorcycle, the S-LEM Active. You state that the S-LEM Active meets the braking requirements by means of a hydraulic system and an electro-magnetic based regenerative braking system. You note that since electro-magnetic braking systems are not mentioned in Standard No. 122, your client is concerned that even if the S-LEM meets the stopping distance requirements of S5.3 and S7.8.1, the National Highway Traffic Safety Administration (NHTSA) will not recognize the compliance of a motorcycle with Standard No. 122 through means other than hydraulic or air service braking systems.

In Standard No. 122, S1. Scope, states: "This standard specifies performance requirements for motorcycle brake systems." Required equipment is specified at S5.1 which states: "Each motorcycle shall have either a split service brake system or two independently actuated service brake systems."

NHTSA interprets these provisions to require at least two independently actuated service brake systems that will independently meet the stopping distance requirements of S5.3 and S7.8.1. Since nothing in the standard specifies that each service brake system is limited to hydraulic or air service braking systems, the regenerative braking system is permitted, as long as it can, independently of the hydraulic system, meet the stopping distance requirements.

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

Sincerely,
Frank Seales, Jr.
Chief Counsel
ref:122
d.11/20/98

ID: 18592.wkm

Mr. G. S. Edington
General Manager
KUMHO Technical Center
3500 Embassy Parkway, Suite 150
Akron, OH 44333

Dear Mr. Edington:

This responds to your letter to this agency regarding the metrication of Federal Motor Vehicle Safety Standard (Standard) No. 119, New pneumatic tires for vehicles other than passenger cars. You referred to the final rule published in the Federal Register on May 27, 1998, (63 FR 28912) in which we changed paragraph S6.5(d) to require that the maximum load ratings and corresponding maximum inflation pressures be shown in metric numbers, followed by English numbers in parentheses, effective May 27, 2003. You asked whether you could continue to show the load ratings and inflation pressures in English units, followed by metric units in parentheses after the May 27, 2003 effective date. The answer is no.

Standard No. 119, subsection S6.5, Tire markings, specifies the labeling that is to be placed on tire sidewalls, the placement of the markings on the sidewalls, and the measurements of the required markings. Paragraph (d) requires that the maximum load rating and the corresponding tire inflation pressure of the particular tire be shown as follows:

For tires rated for single and dual load:
Max load single            kg (         lb) at            kPa (         psi) cold.
Max load dual              kg (         lb) at            kPa (         psi) cold.
For tires rated for single load only:
Max load            kg (           lb) at            kPa (           psi) cold.

ID: 18617-5

Mr. David R. Button
Wegman, Hessler, Vanderburg & O'Toole
Suite 200
6055 Rockside Woods Boulevard
Cleveland, OH 44131

Dear Mr. Button:

This responds to your request that we reevaluate a February 2, 1988, interpretation from this office that log splitters are motor vehicles subject to Federal motor vehicle safety standards. We apologize for the delay in responding. Based on the new information you have given us, we conclude that the log splitters are not motor vehicles.

Our 1988 interpretation letter had responded to an inquiry from Mr. John V. McFadden, former President of MTD Products, Inc. (MTD), which manufactures a line of log splitters. He had described the log splitter as "mounted on a frame carriage equipped with highway high speed wheels and a trailer towing hitch." We concluded from the product literature, and from the provision of highway speed tires with the product, that the log splitters were motor vehicles, in that they would likely make frequent use of the highway and would likely stay at one particular "job site" for a limited amount of time. We also concluded that the log splitters were "trailers," a type of motor vehicle defined in our regulations and subject to the Federal motor vehicle safety standards.

Your new letter gives substantially more background on the log splitters than was provided us in 1988, and asks us to reconsider. You state that the MTD's log splitters are manufactured and sold to consumers through retail establishments such as Sears and Home Depot, in their power tools departments. The log splitter is sold in a box, and the trailer hitch and wheels must be assembled by the consumer. You state that the product is unsuitable for commercial use. You also state that consumer would likely use the log splitter only incidentally, if at all, on the public roadways, and that the MTD's owner's guide indicates that the product is not designed to be used frequently on the public roads. You further state that the product would spend most of its life in storage in a barn or shed, and that the use of the product is seasonal, amounting to only a few weekends a year.

Our statute, at 49 USC 30102(a)(6), defines "motor vehicle" as "a vehicle driven or drawn by mechanical power manufactured primarily for use on the public streets, roads, and highways, but does not include a vehicle operated only on a rail line." "Trailer"is defined in 49 CFR 571.3 as "a motor vehicle with or without motive power, designed for carrying persons or property and for being drawn by another motor vehicle."

Based on the new information you provided, we have reconsidered our 1988 interpretation. We conclude that MTD's line of log splitters are normally purchased for use by an individual consumer, since the product is sold in the power tools section of department stores and other retail stores, requires final assembly by the purchasing consumer, and appears to be unsuitable for high-volume commercial use. Assuming you are correct that these log splitters, sold to individual consumers, are likely used on the public roads infrequently, if at all, we conclude that the log splitters are not manufactured primarily for use on the public roads and are thus not motor vehicles under our statute. If we discover that these vehicles are being used on the road more frequently than you have represented to us, then we might reach a different conclusion.

Since the log splitters are not motor vehicles under our statute, they do not have to meet Federal motor vehicle safety standards. This means that the Federal government in the United States does not regulate them. Our conclusion has no effect on the status of these vehicles in other countries. Moreover, we encourage you to check State regulations, because they may require MTD's product to have certain equipment (e.g., lights and tires) to maximize the safe operation of the product on the highways.

If you have further questions, please contact Paul Atelsek of my staff at this address or by telephone at (202) 366-2992.

Sincerely,
Frank Seales, Jr.
Chief Counsel
cc: Consumer Product Safety Commission
ref:VSA#571.3#591
d.6/1/99

ID: 18644kwii.ogm

William Shapiro, P.E.
Manager
Regulatory Compliance and Environmental Affairs
Volvo Cars of North America
7 Volvo Drive
Rockleigh, NJ 07647-0913

Dear Mr. Shapiro:

This is in response to your letter of August 6, 1998 regarding the impact of amendments adopted by the National Highway Traffic Safety Administration (NHTSA) pursuant to the Debt Collection Improvement Act (DCIA) on applicable penalties for violations by Volvo Cars of North America (Volvo) of the corporate average fuel economy (CAFE) standard applicable to model year (MY) 1998 passenger cars.

Pursuant to 49 U.S.C.  32912(b), a manufacturer that violates a CAFE standard (after applying any applicable carry-back or carry-forward credits) is liable for a civil penalty of $5.00 for each tenth of a mile per gallon (mpg) by which the standard exceeds its average fuel economy for that year, multiplied by the number of automobiles in its fleet. Pursuant to the DCIA, NHTSA raised that amount to $5.50 per tenth of an mpg. 49 CFR 578; 62 Fed. Reg. 5167 (January 30, 1997). The effective date of the increase was March 6, 1997.

In your letter, you refer to a July 23, 1998 letter from me to you, in which I stated that the increase in the CAFE penalty amount would apply beginning with the 1998 model year. You assert, however, that the penalty increase should not apply to Volvo's MY 1998 fleet because certain MY 1998 Volvos were produced and sold prior to the effective date of the increase.

In my July 23, 1998 letter, I explained that NHTSA has long maintained that CAFE standards apply to model years as a whole, and not to separate parts of a model year. The letter also set forth the agency's rationale for concluding that the applicable CAFE penalty is the penalty in effect at the beginning of the model year in question. Since the effective date of the DCIA increase was after the beginning of the 1997 model year, we announced that the penalty increase would apply to violations of the MY 1998 CAFE standards.

You have advised us that, beginning in February 1997, Volvo began selling S/V70 model vehicles that it designated as MY 1998 models. Since this preceded the effective date of the penalty increase, you contend that applying the increased penalty to Volvo's MY 1998 fleet would be inconsistent with the agency's decision that CAFE standards apply only to model years as a whole.

The agency does not agree with your interpretation. Rather, as explained below, we have determined that all DCIA amendments to CAFE civil penalty levels that are effective prior to October 1 of a given year will apply to violations of CAFE standards applicable to the subsequent model year.

As you know, 49 U.S.C. Chapter 329, "Automobile Fuel Economy," establishes time limits within which NHTSA must prescribe and/or amend fuel economy standards for a given model year that are based upon the beginning of the model year. See 49 U.S.C.  32902(a) and (g)(2). In interpreting those provisions, both NHTSA and the courts have concluded that the model year will be deemed to begin on October l. See 49 Fed. Reg.225l6 (May 30, l984); 49 Fed. Reg. 4l250 (October 22, l984); In re Center for Auto Safety, 793 F.2d l346, l349 (D.C. Cir. l986). See also General Motors Corporation v. NHTSA, 898 F.2d l65, l76 (D.C. Cir. l990); and Center for Auto Safety v. NHTSA, 7l0 F.2d 842, 847 (D.C. Cir. l983).

The use of October 1 to mark the commencement of a model year provides NHTSA with a consistent benchmark for satisfying its statutory obligation to promulgate and amend CAFE standards on a timely basis. If, for example, the agency were to recognize model years that were selected by manufacturers for marketing or other purposes as the model year for the purposes of prescribing or amending CAFE standards, it would be difficult, if not impossible, for NHTSA to issue such standards in a timely fashion.

We recognize that a manufacturer may produce or import vehicles that it designates as belonging to a particular model year before October l of the preceding year. However, for purposes of deciding the model year to which any enhanced penalties imposed under the DCIA apply, we need to have a standardized model year that applies to the industry as a whole. We have concluded that since we have previously utilized October 1 as the relevant date for other purposes under the CAFE statute, we will use it for this purpose as well.

If, as you suggest, NHTSA did not apply the enhanced penalties to Volvo's MY 1998 fleet, Volvo would be subject to lesser CAFE penalties than other manufacturers simply by virtue of having produced a small number of vehicles prior to March 6, 1997 that it unilaterally chose to designate as MY 1998 models. We believe that it would be inequitable for the agency to apply the CAFE penalties in such a fashion.

Moreover, if NHTSA were to adopt the position urged by your company, we would encourage manufacturers to time the introduction of new model year vehicles to avoid future penalty increases adopted pursuant to the DCIA. It could also lead to claims that newly adopted or amended CAFE standards for a future model year that were issued on a timely basis should not apply to any manufacturer that sold some of that model year's vehicles prior to October 1 of the preceding year. Such a result would be contrary to the purposes of both Chapter 329 and the DCIA.

Accordingly, NHTSA has concluded that, for purposes of deciding when the enhanced CAFE penalties will apply, the 1998 model year began on October 1, 1997, which was well after the effective date of the penalty increase. Of course, as has always been the case, all of the vehicles that Volvo designated as MY 1998 vehicles will be considered to be part of Volvo's MY 1998 fleet for purposed of calculating its CAFE for that model year.

Accordingly, it is our position that any CAFE penalties applicable to Volvo for the 1998 model year must be calculated using the $5.50 per tenth of an mpg rate required by the DCIA and NHTSA's implementing regulation. However, it also my understanding that Volvo intends to submit another request for interpretation that may further impact on any penalties owed for MY 1998. Provided that this request is submitted prior to the current deadline for the company's payment of the MY 1998 penalty, NHTSA will not take further actions until your request is resolved.

I hope that this is responsive to your request. If you have any questions, please contact Otto Matheke of my staff at (202) 366-5253.

Sincerely,
Frank Seales, Jr.
Chief Counsel
ref:578
d.1/13/00

ID: 18644KWII.ogms

William Shapiro, P.E.
Manager
Regulatory Compliance and Environmental Affairs
Volvo Cars of North America
7 Volvo Drive
Rockleigh, NJ 07647-0913

Dear Mr. Shapiro:

This is in response to your letter of August 6, 1998 regarding the impact of amendments adopted by the National Highway Traffic Safety Administration (NHTSA) pursuant to the Debt Collection Improvement Act (DCIA) on applicable penalties for violations by Volvo Cars of North America (Volvo) of the corporate average fuel economy (CAFE) standard applicable to model year (MY) 1998 passenger cars.

Pursuant to 49 U.S.C.  32912(b), a manufacturer that violates a CAFE standard (after applying any applicable carry-back or carry-forward credits) is liable for a civil penalty of $5.00 for each tenth of a mile per gallon (mpg) by which the standard exceeds its average fuel economy for that year, multiplied by the number of automobiles in its fleet. Pursuant to the DCIA, NHTSA raised that amount to $5.50 per tenth of an mpg. 49 CFR 578; 62 Fed. Reg. 5167 (January 30, 1997). The effective date of the increase was March 6, 1997.

In your letter, you refer to a July 23, 1998 letter from me to you, in which I stated that the increase in the CAFE penalty amount would apply beginning with the 1998 model year. You assert, however, that the penalty increase should not apply to Volvo's MY 1998 fleet because certain MY 1998 Volvos were produced and sold prior to the effective date of the increase.

In my July 23, 1998 letter, I explained that NHTSA has long maintained that CAFE standards apply to model years as a whole, and not to separate parts of a model year. The letter also set forth the agency's rationale for concluding that the applicable CAFE penalty is the penalty in effect at the beginning of the model year in question. Since the effective date of the DCIA increase was after the beginning of the 1997 model year, we announced that the penalty increase would apply to violations of the MY 1998 CAFE standards.

You have advised us that, beginning in February 1997, Volvo began selling S/V70 model vehicles that it designated as MY 1998 models. Since this preceded the effective date of the penalty increase, you contend that applying the increased penalty to Volvo's MY 1998 fleet would be inconsistent with the agency's decision that CAFE standards apply only to model years as a whole.

The agency does not agree with your interpretation. Rather, as explained below, we have determined that all DCIA amendments to CAFE civil penalty levels that are effective prior to October 1 of a given year will apply to violations of CAFE standards applicable to the subsequent model year.

As you know, 49 U.S.C. Chapter 329, "Automobile Fuel Economy," establishes time limits within which NHTSA must prescribe and/or amend fuel economy standards for a given model year that are based upon the beginning of the model year. See 49 U.S.C.  32902(a) and (g)(2). In interpreting those provisions, both NHTSA and the courts have concluded that the model year will be deemed to begin on October l. See 49 Fed. Reg.225l6 (May 30, l984); 49 Fed. Reg. 4l250 (October 22, l984); In re Center for Auto Safety, 793 F.2d l346, l349 (D.C. Cir. l986). See also General Motors Corporation v. NHTSA, 898 F.2d l65, l76 (D.C. Cir. l990); and Center for Auto Safety v. NHTSA, 7l0 F.2d 842, 847 (D.C. Cir. l983).

The use of October 1 to mark the commencement of a model year provides NHTSA with a consistent benchmark for satisfying its statutory obligation to promulgate and amend CAFE standards on a timely basis. If, for example, the agency were to recognize model years that were selected by manufacturers for marketing or other purposes as the model year for the purposes of prescribing or amending CAFE standards, it would be difficult, if not impossible, for NHTSA to issue such standards in a timely fashion.

We recognize that a manufacturer may produce or import vehicles that it designates as belonging to a particular model year before October l of the preceding year. However, for purposes of deciding the model year to which any enhanced penalties imposed under the DCIA apply, we need to have a standardized model year that applies to the industry as a whole. We have concluded that since we have previously utilized October 1 as the relevant date for other purposes under the CAFE statute, we will use it for this purpose as well.

If, as you suggest, NHTSA did not apply the enhanced penalties to Volvo's MY 1998 fleet, Volvo would be subject to lesser CAFE penalties than other manufacturers simply by virtue of having produced a small number of vehicles prior to March 6, 1997 that it unilaterally chose to designate as MY 1998 models. We believe that it would be inequitable for the agency to apply the CAFE penalties in such a fashion.

Moreover, if NHTSA were to adopt the position urged by your company, we would encourage manufacturers to time the introduction of new model year vehicles to avoid future penalty increases adopted pursuant to the DCIA. It could also lead to claims that newly adopted or amended CAFE standards for a future model year that were issued on a timely basis should not apply to any manufacturer that sold some of that model year's vehicles prior to October 1 of the preceding year. Such a result would be contrary to the purposes of both Chapter 329 and the DCIA.

Accordingly, NHTSA has concluded that, for purposes of deciding when the enhanced CAFE penalties will apply, the 1998 model year began on October 1, 1997, which was well after the effective date of the penalty increase. Of course, as has always been the case, all of the vehicles that Volvo designated as MY 1998 vehicles will be considered to be part of Volvo's MY 1998 fleet for purposed of calculating its CAFE for that model year.

Accordingly, it is our position that any CAFE penalties applicable to Volvo for the 1998 model year must be calculated using the $5.50 per tenth of an mpg rate required by the DCIA and NHTSA's implementing regulation. However, it also my understanding that Volvo intends to submit another request for interpretation that may further impact on any penalties owed for MY 1998. Provided that this request is submitted prior to the current deadline for the company's payment of the MY 1998 penalty, NHTSA will not take further actions until your request is resolved.

I hope that this is responsive to your request. If you have any questions, please contact Otto Matheke of my staff at (202) 366-5253.

Sincerely,
Frank Seales, Jr.
Chief Counsel
ref:578
d.1/13/00

ID: 1864y

Ms. Melanie Turner
Quality Control
Diamond-Star Motors
100 North Diamond-Star Parkway
Normal, Illinois 61761

Dear Ms. Turner:

This responds to your letter requesting an interpretation of Standard No. 205, Glazing Materials (49 CFR 571.205). I apologize for the delay in this response.

You were particularly interested in the marking requirements set forth in Standard No. 205. Before I address your specific questions, it might be helpful to provide some background information on the origin and purposes of those marking requirements. Different marking requirements apply depending upon whether your company is a "prime glazing material manufacturer" or simply a manufacturer that cuts sections of glazing material to which Standard No. 205 applies. Section S6.1 of Standard No. 205 defines a "prime glazing material manufacturer" as one who fabricates, laminates, or tempers the glazing material.

Sections S6.1 through S6.3 of Standard No. 205 set forth marking requirements for prime glazing material manufacturers. Section S6.1 requires prime glazing material manufacturers to mark each item of glazing material in accordance with section 6 of American National Standard "Safety Code for Safety Glazing Materials for Glazing Motor Vehicles Operating on Land Highways," Z-26.1-1977, January 26, 1977, as supplemented by Z26.1a, July 3, 1980 (ANS Z-26). One of the requirements of S6 of ANS Z-26 is that a manufacturer mark its glazing with its own "distinctive designation or trademark." Section S6.2 of Standard No. 205 requires prime glazing material manufacturers to mark each item of glazing material designed to be used in a specific vehicle with the symbol "DOT" and a manufacturer code mark that is assigned by this agency. Section S6.3 requires prime glazing material manufacturers to certify compliance with Standard No. 205 for each piece of its glazing material to which Standard No. 205 applies that is designed to be cut into components for use in motor vehicles or items of motor vehicle equipment.

Sections S6.4 and S6.5 of Standard No. 205 set forth marking requirements that apply to each manufacturer or distributor who cuts a section of glazing material to which Standard No. 205 applies for use in a motor vehicle or camper. Section S6.4 requires the manufacturer or distributor to mark that material in accordance with section 6 of ANS Z26. Section S6.5 requires the manufacturer or distributor to certify that its product complies with Standard No. 205.

The purpose of these marking requirements is to help the agency identify the actual manufacturer of the glazing material for the purpose of defect and noncompliance recall campaigns. The difference in the marking requirements was designed to help the agency distinguish between glazing in a motor vehicle that had been manufactured by a prime glazing material manufacturer specifically for use in that vehicle and glazing that had been cut, shaped, or otherwise altered before installation.

With this background, I will now address your specific questions. Your first question was whether the required markings must be located in any specified position on the glass, particularly the side door glass. No provision in either Standard No. 205 or ANS Z26 requires the manufacturer markings to appear in any specific position or area of the glazing. Hence, those required markings may appear anywhere on the glazing.

Your second, third, and fourth questions were all concerned with the issue of whether the required markings must be visible after the glazing has been installed in a vehicle. The answer to this question is no.

We first responded to this issue in an April 13, 1978 letter to Mr. Moe Pare, Jr. Mr. Pare had asked whether the certification markings required on glazing materials by Standard No. 205 must remain visible from the interior or exterior of a vehicle after installation. We replied that: "There is nothing in the certification requirements of section S6 of Standard No. 205 that requires the markings to remain visible after installation on the vehicle." I have enclosed a copy of our letter to Mr. Pare for your information.

We elaborated on our interpretation of this issue in an August 31, 1984 letter to Mr. K. Yamada of Toyota Motor Corporation (copy enclosed). In that letter, we said:

The certification requirements of section S6 of Standard 205 do not require the markings to remain visible after installation of the glazing on a vehicle. As long as the glazing manufacturer has certified and marked its glazing in accordance with the standard and as long as the markings are not removed by the vehicle manufacturer, there is no prohibition against covering the markings.

Your fifth question asked about specifications for the height of the lettering, point size, and dimensions for the required markings on glazing. As noted above, section S6.1 of Standard No. 205 requires each prime glazing material manufacturer to mark glazing materials it manufactures in accordance with section 6 of ANS Z26. Section S6.4 of Standard No. 205 requires each manufacturer or distributor that cuts a section of glazing material for use in a motor vehicle or camper to mark the material in accordance with section 6 of ANS Z26. Section 6 of ANS Z26 states that:

... all safety glazing materials manufactured for use in accordance with this code shall be legibly and permanently marked in letters and numerals at least 0.070 inch (1.78 mm) in height, with the words "American National Standard" or the characters AS, and, in addition, with a model number that will identify the type of construction of the glazing material. They shall also be marked with the manufacturer's distinctive designation or trademark.

Footnote 27 in Section 6 of ANS Z26 reads: "The model number shall be assigned by the manufacturer of the safety glazing material and shall be related by the manufacturer to a detailed description of a specific glazing material."

Your sixth and final question asked about the required content of the manufacturer certification and marking requirements for items of glazing. As noted above, the marking requirements for prime glazing material manufacturers are set forth in sections S6.1 through S6.3 of Standard No. 205. The marking requirements for manufacturers and distributors that cut a section of glazing material for use in a motor vehicle or camper are set forth in sections S6.4 and S6.5 of Standard No. 205.

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

Sincerely,

Stephen P. Wood Acting Chief Counsel

Enclosures

ref:205 d:6/26/89

ID: 18652.ztv

Mr. Buddy King
Canada and Eastern Sales Manager
ARB Air Locker
1425 Elliott Avenue, W.
Seattle, WA 98119

Dear Mr. King:

This is in reply to your letter of August 19, 1998, asking for "a copy of the official guidelines on auxiliary lighting." Your company is the sole U.S. distributor for a line of motor vehicle lighting equipment manufactured in Japan, which is shown in a sales folder you enclosed with your letter.

In order to be imported into the United States, original and replacement motor vehicle lighting equipment must comply with Federal Motor Vehicle Safety Standard No. 108 Lamps, Reflective Devices and Associated Equipment, if applicable, and be certified as complying with the standard. We use the term "auxiliary lighting" to refer to any item of lighting equipment that is not covered by the terms of Standard No. 108. After reviewing the sales folder you enclosed, it appears that only #816 Backup Lamp, the Head Lamp Replacements, and the Halogen Bulbs are covered by Standard No. 108. This means that the remainder of the lighting equipment shown in your folder is subject to no Federal requirement pertaining to its importation and sale.

Federal restrictions do exist with respect to the installation of the equipment. With respect to auxiliary lighting equipment installed on a vehicle by its manufacturer or dealer (prior to initial sale as a new vehicle), the equipment must not "impair the effectiveness" of lighting equipment required by Standard No. 108. For example, the driving lamps or fog lamps must not be mounted so close to the turn signal lamps required by Standard No. 108 that they obscure or render less visible the flashing of the turn signal lamp. The criteria for making this determination are in Standard No. 108 and SAE Standard J588 NOV84 Turn Signal Lamps, incorporated by reference. Similarly, if the equipment is installed after a vehicle's initial sale, by a "manufacturer, dealer, distributor, or motor vehicle repair business," the lamps as installed must not "make inoperative" any of the required lighting equipment, such as would occur if the turn signal were obscured or its signal degraded. Standard No. 108 imposes no requirements per se for driving lamps and fog lamps. States regulate auxiliary devices in various ways. We suggest you contact the American Association of Motor Vehicle Administrators (AAMVA) for information on how to obtain State approval for these devices. Its address is 4600 Wilson Boulevard, Arlington, VA. 22203.

Standard No. 108, on the other hand, specifies requirements for backup lamps and headlamps. The sales folder does not indicate whether #816 Backup Lamp complies with Standard No. 108, but the text for the "Head Lamp Replacements and Halogen Bulbs" clearly state that "These lamps are not DOT approved." Because DOT has no authority to approve or disapprove any equipment item, we interpret this phrase as meaning that the lamps lack a DOT symbol representing its manufacturer's certification of compliance with Standard No. 108. We do not know whether the #816 Backup Lamp and the three halogen bulbs bear a certification. Certification is required for all lighting equipment regulated under Standard No. 108 imported and sold in the United States. This certification is usually in the form of the symbol "DOT" placed on the item itself. Alternatively, it may appear on the exterior of the container in which the lighting equipment is sold.

We are particularly concerned about the Head Lamp Replacements because of the desire of many people to import headlamps that comply with ECE regulations. We reiterate, any replacement headlamps imported into the United States must be certified as complying with Standard No. 108.

If you have any further questions, please call Taylor Vinson who spoke with you earlier (202-366-5263).

Sincerely,
Frank Seales, Jr.
Chief Counsel
ref:108
d.9/22/98