Interpretation ID: 19994.ztv
Mr. F. Barry Hennegan
General Counsel
Atlas and Reusable Launch Systems
Lockheed Martin
P.O. Box 179
Denver CO 80201-0179
Re: SS-99-10099
Dear Mr. Hennegan:
This is in reply to your letter of May 3, 1999, to the Office of Chief Counsel, National Highway Traffic Safety Administration, "regarding possible exemptions from certain of the requirements of 49 C.F.R. Sections 571.121 and 393.52" with respect to two trailers owned by Lockheed Martin.
The Office of Motor Carrier Safety, Department of Transportation, enforces 49 CFR 393.52. I am forwarding a copy of your letter to that Office for its response to you on this issue.
In brief, Lockheed Martin is the owner of two trailers manufactured for it by Martinez and Turek of Riato, California. These trailers were manufactured to your specifications, which included compliance with Federal Motor Vehicle Safety Standard No. 121, Air brake systems. The trailers also feature steerable rear wheels mounted on a removable bogie assembly. You inform us that "after completion of acceptance and road testing of both trailers, it appears that neither will fully meet Section 571.121, Paragraphs S5.3.3 Brake actuation Time and S5.3.4 Brake Release time."
However, you note that S3(a) of Standard No. 121 excludes trailers which exceed 102.36 inches in width and which are "equipped with two short track axles in a line across the width of the trailer." Your trailers are wider than this but don't meet the axle specification. Nevertheless, you believe that the intent of this exception is "not to have the requirements apply to oversize, slow, or specialty trailers such as ours." Accordingly, you ask that we exempt your trailers from S5.3.3 and S5.3.4 of Standard No. 121.
I am sorry to inform you that we have no authority to exempt these trailers from Standard No. 121 under the circumstances that you relate. Because they are not equipped with two short track axles across their width, the trailers do not qualify for the exclusion from Standard No. 121 provided by S3(a). The trailers, then, were required by 49 U.S.C. 30112(a) to comply with all applicable Federal motor vehicle safety standards, and to be certified by their manufacturer as conforming to those standards.
We have authority to exempt trailers from Standard No. 121 at any point up to and including their first sale for purposes other than resale, upon application by their manufacturer (49 U.S.C. 30113). Given the fact that these trailers are already owned by Lockheed Martin, it is too late for their manufacturer, Martinez and Turek, to apply for an exemption.
When either we determine, or a manufacturer determines, that a motor vehicle fails to comply with a Federal motor vehicle safety standard, the manufacturer is required to notify us and its dealers and purchasers, and to remedy the noncompliance (49 U.S.C. 30118-30120, as implemented by 49 CFR Parts 573 and 577). However, if the manufacturer believes that the noncompliance is inconsequential to motor vehicle safety, it may petition us for a decision to that effect. If we grant the petition, the manufacturer is relieved of its statutory obligation to notify and remedy (49 U.S.C. 30118(d) and 30120(h), as implemented by 49 CFR Part 556).
Therefore, if the manufacturer, Martinez and Turek, agrees that Lockheed Martin's trailers fail to comply with S5.3.3 and S5.3.4 of Standard No. 121, the company is required, at a minimum, to notify us in the manner prescribed in 49 CFR Part 573. Within 30 days of notifying us, it may also submit an inconsequentiality petition with us under 49 CFR Part 556. In this particular instance, the manufacturer might want to discuss, as part of such a petition, whether this vehicle is operated only under special permit and with escort vehicles. If it does not file a petition (or if the petition is denied), it is required to remedy the noncompliance.
Although you did not address the issue, under our interpretations, the removable bogie assembly appears to be a trailer, and subject to compliance with Federal requirements. You state that the auxiliary axle was added after delivery of the trailers to ensure that the vehicles, when in use, would not exceed the maximum Colorado allowable rear wheel road loading for tandem axle trailers. A bogie/axle unit installed as part of a trailer's original equipment is considered to be part of the trailer itself, and covered by its manufacturer's certification and the trailer's VIN. However, a bogie/axle unit sold and installed after the trailer has been delivered to its owner is considered a trailer, and is required to comply with Federal requirements applicable to trailers, including compliance with Federal standards, the VIN regulation, and certification by the bogie/axle manufacturer. I am enclosing a copy of a letter we furnished Jay Reese on September 25, 1996, which explains this in further detail. If the bogie/axle units installed on your two trailers do not in fact comply with Federal standards applicable to trailers, the bogie manufacturer is subject to the same notification, recall, and inconsequentiality procedures discussed in the preceding paragraph.
If you have any questions, you may phone Taylor Vinson of this Office (202-366-5263).
Sincerely,
Frank Seales, Jr.
Chief Counsel
Enclosure
cc: Martinez & Turekref:121#573#555
Riato, CA
d.11/9/99