Interpretation ID: nht88-1.60

TYPE: INTERPRETATION-NHTSA

DATE: 03/01/88

FROM: AUTHOR UNAVAILABLE; Erika Z. Jones; NHTSA

TO: Telex Communications, Inc.

TITLE: FMVSS INTERPRETATION

TEXT: Bill Hunt, Project Engineer Telex Communications, Inc. 8601 Northeast Highway 6 Lincoln, NE 68505

Dear Mr. Hunt:

This letter responds to your inquiry of November 3, 1987, in which you enclosed a diagram to show the relationship between your company, Telex Communications, Inc. (Telex or your company), and a Telex customer you designated as Company XYZ (or your custo mer). As I understand your diagram, Telex manufactures a trailer which it sells to Company XYZ. Company XYZ then delivers the trailer to its subcontractors, Companies ABC and DEF, who install items such as generators and communications equipment. Your l etter suggests that you are uncertain about your company's certification responsibility. It is your company's position that as an incomplete vehicle manufacturer, you should provide the document specified in 49 CFR @568.4(a). On the other hand, your cust omer asserts that as the incomplete vehicle manufacturer, Telex must assume legal responsibility for the incomplete vehicle under 49 CFR @568.7(a), and certify the vehicle's compliance under Part 567. On a number of occasions, you spoke with Joan Tilghma n of my staff on the matters raised in your letter.

On the diagram enclosed with your letter, you state that the trailers Telex delivered to Company XYZ are equipped with "running gear, brakes, lights, etc." Telex assigns a VIN, gross axle weight rating, and a gross vehicle weight rating to each railer it delivers to Company XYZ. You are concerned because two contractors with whom you have no relationship add equipment to the trailer after you deliver it to your customer.

First, having reviewed the drawing of the trailer and the narrative information in your letter it is not clear to me whether your trailers are, in fact, incomplete vehicles. You may wish to provide me with information that more completely describes your trailer so that I may give a more definitive answer to your question. A photograph showing the trailer as it is delivered to Company XYZ would be helpful. However, I shall be as responsive as I can be given the information you supplied in your letter.

If the trailers are incomplete vehicles, then Part 568 would not compel your company to certify the trailers' compliance with all applicable Federal safety standards. Under @568.7, Telex may elect to assume legal responsibility for all the certification duties and liabilities imposed on a manufacturer under the National Traffic and Motor Vehicle Safety Act, and affix the certification label as specified in @567.5(e). But if Telex decides against assuming certification responsibility, then it must supply the incomplete vehicle document specified in @568.4.

If the trailers are completed vehicles which are converted to a different use by Company XYZ through its subcontractors, you must certify them irrespective of whether your customer contracts to have other equipment added to the vehicles after delivery. T he fact that your customer contracts to have a generator and communications equipment added does not mean that the vehicle requires further manufacturing operations to perform its intended function. The determination of whether a vehicle requires further manufacturing operations to perform its intended functions is not a subjective inquiry into what use the particular person to whom the vehicle is delivered intends to make of the vehicle. In previous interpretations, we have explained that the question is whether the particular vehicle type (e.g., trailer, van) requires further manufacturing operations to perform the customary functions that an ordinary purchaser would expect of this vehicle type.

For example, a van that is delivered to a dealer ready for road use is a completed vehicle, even if the dealer intends to send it to a van converter to have different equipment (seats, refrigerators, etc.) installed before selling the van to a retail cus tomer. Similarly, the trailer your company delivers to Company XYZ is a completed vehicle if it needs no further manufacturing operations to perform the functions an ordinary purchaser would expect of a trailer.

Under the National Traffic and Motor Vehicle Safety Act (Vehicle Safety Act), a complete vehicle manufacturer's certification responsibilities apply up to the vehicle's first purchase in good faith for purposes other than resale. It appears from your let ter that Company XYZ purchases your trailers for purposes other than resale, and that after its purchase, Company XYZ subcontracts with two other companies to add a generator and communications equipment to the trailers. If my assumptions are correct, th en the two subcontracting companies have no certification responsibilities under the Vehicle Safety Act, because they are modifying vehicles after their first purchase in good faith for purposes other than resale.

The only limitations on the modifications those subcontractors can make to the trailers is set out in S108(a) (2) (A) of the Vehicle Safety Act (15 U.S.C. 1397(a) (2)(A)). That section states that:

No manufacturer, distributor, dealer, or motor vehicle repair business shall knowingly render inoperative, in whole or in part, any device or element of design installed on or in a motor vehicle or item of motor vehicle equipment in compliance with an ap plicable Federal motor vehicle safety standard...

If Company XYZ's subcontractors are "manufacturers," "distributors," "dealers," or "motor vehicle repair businesses" within the meaning of @108 (a) (2) (A), they may not remove, disconnect, or degrade the performance of safety equipment or designs that T elex installed in the trailers in compliance with an applicable Federal safety standard.

I hope you find this information helpful. If you have any further questions on this subject, or wish to provide additional information about the particular relationships that here the subject of this letter, please feel free to contact Ms. Tilghman at th is address or by telephone at (202) 366-2992.

Sincerely,

Erika Z. Jones Chief Counsel

November 3, 1987

Chief Counsel - NHTSA 400 7th Street S.W. Washington, D.C. 20590

Attention: Ms. Erika Z. Jones

Dear Ms. Jones:

I am writing to you concerning the interpretation of CFR 567 and 568 regarding ultimate responsibility for DOT certification.

I have spoken with Joan Tilghman concerning this. She suggested I write to you explaining the circumstances. Please review the enclosed information. I will call soon to discuss this further. Thank you.

Sincerely,

TELEX COMMUNICATIONS, INC. Hy-Gain Division

Bill Hunt Project Engineer

TELEX COMMUNICATIONS,INC.

The parties:

Telex Communications - Trailer manufacturer Customer: Company XYZ

Company ABC - Generator Manufacturer & Installer Customer: Company XYZ

Company DEF - Radio Equipment Manufacturer & Installer Customer: Company XYZ

Company XYZ - Buyer of trailer & additional Installed equipment.

TELEX COMMUNICATIONS, INC., Lincoln, NE.

Manufactures a trailer with running gear, brakes, lights, VTN, etc. Total vehicle wt = 8000/9000#

Axle rating - 9000# ea., 18,000# total

Telex work is complete.

Telex' Customer, XYZ has permanent components added to trailer by two other sub contractors (after delivery from Telex). There are items such as generators (1) & communications equipment (2). Telex is aware of general nature and weight and location of added equipment. These factors have been used to determine trailer design. However, Telex does not have any contractual relationship with the other subcontractors. Telex does not install and is not responsible for the installation of the added equipment.

The problem: Certification of trailer.

Telex' position:

Telex is an incomplete vehicle manufacturer and should provide documentation as stipulated in CFR 568.4a.

XYZ's position:

Telex is an incomplete vehicle manufacturer that assumes legal responsibility as in CFR 568.7a. and is responsible for final vehicle certification per 567.5e.