Interpretation ID: nht87-1.30

TYPE: INTERPRETATION-NHTSA

DATE: 02/10/87

FROM: AUTHOR UNAVAILABLE; Erika Z. Jones; NHTSA

TO: M.R. Dunn

TITLE: FMVSS INTERPRETATION

TEXT:

AIR MAIL

Mr. M. R. Dunn Engineering Director Rolls-Royce Motor Cars Limited Crew Cheshire CW1 3PL ENGLAND

Dear Mr. Dunn:

Thank you for your telefax of December 18, 1986, concerning Rolls-Royce's ability to meet the automatic restraint phase-in requirements of Standard No. 208, Occupant Crash Protection. You reported that Rolls-Royce has experienced setbacks in both its aut omatic belt and airbag programs and faces "a real possibility of being unable to comply during the 1987 model year to 31 August 1987." You asked "whether there would be any restriction imposed on our sales of non-complying 1987 model year cars and the ex tent of any financial penalty per car if any."

The National Traffic and Motor Vehicle Safety Act sets out a manufacturer's obligation to produce vehicles that comply with all applicable Federal motor vehicle safety standards. The Vehicle Safety Act provides for a number of remedies the agency would p ursue if a manufacturer has failed to comply with the requirements of the Act. Those remedies are discussed below.

Section 108(a)(1)(A) of the Vehicle Safety Act obligates a manufacturer to produce vehicles that conform to the Federal motor vehicle safety standards. That section prohibits a manufacturer from manufacturing, introducing into interstate commerce, sellin g, or importing a vehicle that does not conform with all applicable Federal motor vehicle safety standards. Section 114 of the Vehicle Safety Act also obligates a manufacturer to furnish, at the time of delivery of a vehicle to a distributor or dealer, a certificate that the vehicle conforms to all applicable Federal motor vehicle safety standards. It is a violation of section 108(a)(1)(C) of the Vehicle Safety Act for a manufacturers to issue such a certification if it "in the exercise of due care has reason to know that such certificate is false or misleading in a material respect."

The Vehicle Safety Act provides NHTSA with a wide range of remedies the agency can pursue if there is a violation of the Act. Section 109(a) provides for a civil penalty of $1,000 for each violation of a provision of section 108 or any regulation issued under the authority of that section. Section 109(a) further provides that each non-complying motor vehicle constitutes a separate violation and entitles the agency to collect a civil penalty of up to $800,000 for a series of violations.

Under section 110 of the Vehicle Safety Act, the agency has authority to seek injunctive relief to restrain "violations of this title (or rules, regulations or orders thereunder), or to restrain the sale, offer for sale, or the introduction or delivery f or introduction in interstate commerce, or the importation into the United States" of non-complying motor vehicles.

Section 111 of the Vehicle Safety Act imposes additional duties on a manufacturer of a non-complying vehicle that has been delivered to a distributor or dealer but nor yet sold to a retail customer. That section requires the manufacturer to repurchase th e non-complying vehicle from the distributor or dealer, and to reimburse the dealer or distributor for a portion of its expenses. As an alternative, the manufacturer can furnish she purchasing distributor or dealer with the necessary conforming parts and reimburse the distributor or dealer for a portion of its expenses. If a non-complying vehicle has been sold to a retail purchaser, sections 151-159 of the Vehicle Safety Act require the vehicle's manufacturer so conduct a non-compliance notification and remedy campaign.

Under the phase-in requirements of Standard No. 208, Rolls-Royce has the obligation to install automatic restraints in ten percent of its vehicles manufactured during the period September 1, 1986 - August 31, 1987 for sale in the United Stares. If the ag ency were to determine that passenger cars manufactured by Rolls-Royce for sale in the United States do not conform to the automatic restraint requirements of Standard No. 205, the agency could pursue any or all of the following remedies under the Vehicl e Safety Act. To determine the extent of Rolls-Royce's compliance, the agency could require Rolls-Royce to provide information on the number of vehicles produced and the number equipped with automatic restraints. The agency could seek to restrain the sal e of the non-complying Rolls-Royce cars that have been imported into the United States. In addition, the agency could seek to restrain the further importation of non-complying Rolls-Royce passenger cars into the United States. Further, the agency could s eek a civil penalty against Rolls-Royce for each violation of section 108(a)(1)(A) and (C). In addition to seeking those remedies, the agency has authority under section 152 of the Vehicle Safety Act to determine whether Rolls-Royce should be ordered to conduct a notification and remedy campaign for the non-complying vehicles. While your question and the above discussion are hypothetical, we strongly urge Rolls-Royce to take all necessary steps to assure compliance with the phase-in requirements of Stan dard No. 208.

If you have any further questions, please let me know.

Sincerely,

Erika Z. Jones Chief Counsel

TELEFAX No 010 1 202 366 5930

National Highway Traffic Safety Administration Washington USA

For the attention of:

Barry Felrice, Associate Administrator for Rulemaking Room 5401

Following our telephone conversation I acknowledge your advice that a petition for temporary exemption from FMVSS 208 passive restraints is unlikely to be successful for 1987 model year. As described in our original petition for an extension of the effec tive 1987 model year to 31 December 1987 extra time is required to improve our chances or offering airbags. I must report that with setbacks in both our passive belt and our airbag programs we face a real possibility of being unable to comply during 1987 model year to 31 August 1987.

Will you please advise me whether there would be any restriction imposed on our sales of non-complying 1987 model year cars and the extent or any financial penalty per car if any.

N R Dunn Engineering Director Rolls-Royce Motor Cars Ltd, Crewe