ID: GF005146

Mr. Milo Plasil
Intertech
2629 Purdue Avenue
Los Angeles, CA 90064

Dear Mr. Plasil:

This responds to your e-mail to George Feygin of my staff in which you ask several questions regarding 49 CFR Part 555 (Part 555). Part 555 provides a means by which manufacturers of motor vehicles may obtain a temporary exemption from the National Highway Traffic Safety Administration (NHTSA) of certain motor vehicles from compliance with one or more Federal motor vehicle safety standards (FMVSSs) or with NHTSAs bumper standard.

You ask about complex fact scenarios. We have simplified and restated your questions as we have understood them, and follow each question with our answer.

1. Suppose a manufacturer builds vehicles from various new parts and subassemblies. Later, its Part 555 petition is granted. Can a vehicle assembled from the parts prior to the agencys grant of the Part 555 petition be entered into interstate commerce as "used," "demonstration" or "testing" vehicles?

A vehicle may be sold if it is covered by the Part 555 exemption, but the vehicle would have to meet all applicable FMVSSs (except to the extent exempted by the grant of the petition). The FMVSSs apply to the vehicle until the vehicles first purchase in good faith other than for resale. Calling a vehicle a "used," "demonstration" or "test" vehicle before the vehicles first purchase in good faith other than for resale does not make the vehicle "used" in NHTSAs view. The vehicle would be considered "new," and would have to meet the applicable FMVSSs when it is sold or introduced into interstate commence.

2. How can a U.S. manufacturer of vehicles described in Question 1, "register" and "license" them for testing on public roads prior to agencys decision on the Part 555 petition?

Under the pertinent portion of 49 U.S.C. 30112, "a person may not manufacture for sale, sell, offer for sale, introduce or deliver for introduction in interstate commerce, or import into the United States," any motor vehicle unless it complies with, and is certified as complying with, all applicable FMVSSs. Accordingly, test vehicles cannot be introduced into interstate commerce by being driven on public roads until they are certified in accordance with NHTSAs certification requirements for vehicle manufacturers (these requirements are attached to this letter).

3. If the petition for Part 555 exemption is granted, and the manufacturer sells less than the maximum of 2,500 vehicles in the first year of exemption, can this manufacturer sell more than 2,500 vehicles the second year if the two year total does not exceed 5,000 vehicles?

Carry-forward or carry-back credits are not permitted. If the manufacturer obtains a temporary exemption on grounds other than financial hardship (see 49 CFR 555.6 (b) through (d)), the number of exempted vehicles that can be sold is limited to 2,500 in any 12-month period. Accordingly, a manufacturer cannot sell more than 2,500 exempted vehicles in the second year of exemption, even if it sold less than 2,500 in the first year, and the two-year total is below 5,000.

If the manufacturer obtains a Part 555 exemption on financial hardship grounds, there is no limit on the number of exempted vehicles that can be sold. Note that under 555.6(a)(1)(v), to be eligible for a petition on financial hardship grounds the total number of motor vehicles produced by or on behalf of the petitioner in the 12-month period prior to filing the petition cannot exceed 10,000.

4. If the exemption is granted for 900 vehicles per year, and the manufacturer sells only 600 in the first year, can the manufacturer sell an extra 300 vehicles in the second year of exemption?

When the agency grants a petition for a Part 555 exemption, the agency generally does not specify the number of exempted vehicles that may be sold each year, so long as the number of exempted vehicles does not exceed 2,500 in any 12-month period. As stated in my answer to question 3, carry-forward credits are not permitted. As also explained in that answer, there are no limits on eligible manufacturers (manufacturing less than 10,000 vehicles in the past 12 months) exempted on financial hardship grounds.

5. If the petition for Part 555 exemption is granted, can the exempted manufacturer sell the same vehicle under a different name?Specifically, the manufacturer is uncertain as to the name of the vehicle. Must the application for exemption be name-specific?

Section 555.9(a) requires the manufacturer of exempted vehicles to submit to NHTSA a sample certification label that would appear on those vehicles (the relevant certification label requirements are attached). The certification labels must include the vehicle identification number (VIN). Under Part 565, the VIN must include the vehicle name. Because the VINs are name-specific, a mid-term change by the manufacturer of the exempted vehicles name would require that manufacturer to resubmit its sample certification label with a VIN that is formatted using the revised name. We note, of course, that a name change would have no affect on the maximum quantity of vehicles subject to the exemption.

6. The entity seeking exemption will initially assemble vehicles in the U.S. However, the same entity may later wish to import assembled vehicles from a foreign country. Are registered importers eligible for Part 555 exemptions? If so, may the same entity apply for a single exemption as an importer and a manufacturer?If not, must the foreign entity assembling these vehicles petition for a separate Part 555 exemption?

The exemption provisions in 49 U.S.C. 30113, implemented in Part 555, apply only to vehicle manufacturers. While a registered importer may file a Part 555 temporary exemption petition on behalf of a foreign manufacturer (if it acts in the capacity of the manufacturers agent in the United States), the agency will consider the circumstances of the manufacturer, and not the importer, in deciding on the petition (see 33 FR 14557, and an October 9, 1990 letter to Mr. William D. Rogers, copies enclosed).

7. How can the petitioner "reconcile possible honest differences of compliance interpretation, if they appear when the vehicles are selectively tested for compliance"?

Each of the FMVSSs specifies the test conditions and procedures that this agency will use to evaluate the performance of the vehicle or equipment being tested for compliance with the particular safety standard. Manufacturers are not required to test their products in the manner specified in the relevant FMVSS as their basis for certifying that the product complies with that standard. A manufacturer may choose any means of evaluating its products in order to determine, in good faith, that the vehicle or equipment will comply with the FMVSSs when tested by the agency according to the procedures specified in the standard. However, manufacturers often choose to follow the test conditions and procedures that NHTSA will use in conducting compliance testing.

NHTSA may ask a manufacturer to provide basis for its certification that the vehicle or equipment complies with the FMVSS. If in fact there is a noncompliance, a manufacturer would have to recall the product to bring it into compliance, at no charge to the customer. In addition, the manufacturer could be subject to civil penalties unless it can establish that it had no reason to know, despite exercising "reasonable care" in the design and manufacture of the product, that the product did not in fact comply with the safety standards (49 U.S.C. 30112(b)(2)(A)).

8. Does NHTSA have an entity that can inspect a prototype vehicle subject to the exemption petition in order to ensure that they are accurately described in the petition for exemption?

Our statute establishes a "self-certification" process under which each manufacturer is responsible for certifying that its products meet all applicable FMVSSs. NHTSA does not provide approvals of motor vehicles or motor vehicle equipment. Consistent with this statutory framework, NHTSA does not have an entity that inspects vehicles for compliance with our programs. Under 555.5(c), the knowing and willful submission of false, fictitious or fraudulent information will subject the petitioner to the civil and criminal penalties of 18 U.S.C. 1001.

9. How do I obtain information on NHTSA investigations pertaining to Land Rover Defender, model years 1993 to 1997?

Summary information on all NHTSA defect investigations since 1972 is available online at: http://www-odi.nhtsa.dot.gov/cars/problems/defect/defectsearch.cfm. If this database contains files pertaining to the vehicle in question, you may purchase copies of the investigation documents online.

If you have any other questions, please contact Mr. Feygin at this address or by phone at (202) 366-2992.

Sincerely,

Jacqueline Glassman
Chief Counsel

Enclosures
ref:555
d.12/9/04

ID: GF005156

Jack Sheehan, Managing Director
Adaptive Driving Alliance
4218 W. Electra Lane
Glendale, AZ 85310




Dear Mr. Sheehan:

This responds to your March 15, 2005, letter asking whether this agency would permit voluntary compliance with the requirements of a recently published final rule before the stated effective date.

On February 14, 2005, the National Highway Traffic Safety Administration (NHTSA) issued a final rule establishing a new process under which intermediate and final-stage manufacturers and alterers could obtain temporary exemptions from dynamic performance requirements (see 70 FR 7414). The final rule also amended the pass-through certification provisions. The preamble to the final rule states that the effective date for the amendments is September 1, 2006.

First, notwithstanding the effective date, the agency will accept temporary exemption petitions submitted before the September 1, 2006, because, in certain circumstances, this will enable the agency to consider the exemptions in an expeditious manner. We note, however, that the agencys review process will not be limited to 120 days (as indicated in 555.14) until the September 1, 2006, effective date. We further note that because a good faith effort to comply with applicable requirements is a prerequisite for a temporary exemption petition, the agency will not consider a petition unless it demonstrates that the petitioner has made reasonable efforts to comply with the applicable dynamic performance requirements (see 49 CFR Part 555.13(b)).

Second, parties affected by the February 14, 2005, final rule are not prohibited from voluntarily complying with the amended certification and documentation requirements in Parts 567 and 568 before the September 1, 2006, effective date.

Finally, we will address the application and the effective date of the new section 571.8(b) when we respond to the petitions for reconsideration of the February 14, 2005 document.

If you need further assistance, please contact George Feygin of my staff at this address or at (202) 366-2992.

Sincerely,

Jacqueline Glassman
Chief Counsel

ref:555
d.8/1/05

ID: GF005203

Mr. Graham Wells, IV
Whites Tire & Rubber Company
PO Box 1469
Wilson, NC 27894

Dear Mr. Wells:

This is in response to your e-mail of August 2, 2004, in which you seek clarification of certain regulations pertaining to retreaded tires. Specifically, you ask what information is required on the sidewalls of retreaded tires for use on vehicles with a Gross Vehicle Weight Rating greater than 10,000 pounds.

By way of background, the National Highway Traffic Safety Administration (NHTSA) does not provide approvals of motor vehicles or motor vehicle equipment. Under 49 U.S.C. Chapter 301, manufacturers are required to certify that their vehicles and equipment meet applicable requirements. The issues raised by your letter are addressed below.

There is no Federal Motor Vehicle Safety Standard applicable to retreaded tires for vehicles other than passenger cars. However, 49 CFR 574.5 does require each tire sold in the United States, including retreaded tires, to be labeled with Tire Identification Number (TIN) in order to facilitate a recall in the event of a defect. Under 574.5 (a) through (d), each TIN consists of (a) the manufacturers or retreaders identification code, (b) the tire size symbol, (c) optional tire type code, and (d) the date code; i.e. the week and year of manufacture.

With respect to maximum load and maximum pressure, no regulation requires retreaded tires (for vehicles other than passenger cars) to show this information.

I hope you find this information helpful. If you have further questions, you may contact Mr. George Feygin of my staff at (202) 366-2992.

Sincerely,

Jacqueline Glassman
Chief Counsel

ref:574
d.9/10/04

ID: GF005229-2

[ ]

Dear [ ]

This responds to your letter asking whether a key locking system, which includes an engine control module immobilizer, could be used to meet the requirements of S4.2 of Federal Motor Vehicle Safety Standard (FMVSS) No. 114, Theft Protection. More specifically, you asked whether such a system would meet the requirements of S4.2 by (a) preventing normal activation of the vehicles engine by removal of the key, and (b) preventing vehicle forward self-mobility by the presence of the immobilizer. As discussed below, the answer to your question is yes.

Before I address your question, I note that you requested confidential treatment for the identity of your company and for yourself, as well as for additional information provided in your letter. You also provided a redacted version of your letter. I agree to keep your name and the name of your company confidential. All information in bold brackets [      ] in our letter will be kept confidential. The redacted version of your letter will be made public. We will send a separate letter providing a complete response to your request for confidentiality.

SECTION S4.2

FMVSS No. 114 specifies requirements for theft protection to reduce the incidence of crashes resulting from unauthorized operation of a motor vehicle. S4.2 of the standard specifies:

Each vehicle shall have a key-locking system which, whenever the key is removed, prevents:

(a) The normal activation of the vehicles engine or motor; and

(b) Either steering or forward self-mobility of the vehicle or both.

As you noted in your letter, "self-mobility" is not defined in the standard. Manufacturers have typically prevented forward self-mobility by installing transmission lever locks.

YOUR SYSTEM

Your vehicle features an engine control module immobilizer system that uses a multi-level coding process (hash code), which differentiates between a constant key code and a continuously varying authorization code.

First, for normal vehicle activation, an operator must insert the properly coded electronic key into the electronic ignition lock. After insertion, a 2-way data exchange takes place for positive verification of the drive authorization. The engine can be started only after the positive verification occurs.

Second, if a key without the proper electronic code is used, or an attempt is made to bypass the electronic ignition lock in order to start the vehicle through other means (e.g. , through "hot-wiring" of the vehicle), the immobilizer will lock out the engine control module effectively preventing engine operation.

You believe that the presence of this engine control module immobilizer prevents forward self-mobility in the context of S4.2(b) because without engine operation, the vehicle is incapable of moving forward under its own power.

DISCUSSION

We agree that the type of system you describe would meet the requirements of S4.2(a) because it prevents normal activation of the vehicles engine when the key is removed. We also agree that the type of system you describe would meet the requirements of S4.2(b) because engine control module immobilizer prevents vehicle forward self-mobility when the key is removed.

As you discussed in your letter, the two provisions of S4.2 were intended to reduce unauthorized operation of a motor vehicle in different ways. Provision (a) was intended to prevent unauthorized operation of a motor vehicle by requiring that the vehicle could not be started without the key. Provision (b) was intended to further impede unauthorized operation of a motor vehicle by preventing vehicle operation outside the normal activation method. That is, if an attempt were made to circumvent the ignition lock (through "hot-wiring," for example), another device would prevent unauthorized operation of a motor vehicle.

We note that in promulgating FMVSS No. 114, the agency expressed concern about car thieves who could bypass the ignition lock. In response to this concern, the agency decided to require a device, which would prevent either self-mobility or steering even if the ignition lock were bypassed (see 33 FR 4471, April 27, 1968).

The engine control module immobilizer described in your letter satisfies the requirements of S4.2(b) because it locks out the engine control module if an attempt is made to start the vehicle without the correct key or to bypass the electronic ignition system. When the engine control module is locked, the vehicle is not capable of forward self-mobility because it is incapable of moving forward under its own power.

I hope you find this information helpful. If you need further assistance, please contact George Feygin of my staff at this address or at (202) 366-2992.

Sincerely,

Jacqueline Glassman
Chief Counsel

ref:114
d.9/24/04

ID: GF005279

Mr. Fred Anderson
President
BrakeQuip International, Inc.
1470 Amherst Road
Knoxville, TN 37909

Dear Mr. Anderson:

This responds to your letter of July 16 and subsequent phone conversation with George Feygin of my staff asking whether the National Highway Traffic Safety Administration (NHTSA) "recognizes and accepts other countries test standards." Specifically, you state that the Australian standard ADR7 and Canadian standard CMVSS106 were both adopted from the Federal Motor Vehicle Safety Standard No. 106, Brake Hoses (FMVSS No. 106), and are identical to that standard. Your product is certified to the Canadian and Australian standards. You ask whether your product has to be "re-tested in the U.S." before certifying compliance with FMVSS No. 106.

By way of background, NHTSA administers Federal requirements applicable to the manufacture and sale of new motor vehicles and certain items of motor vehicle equipment, including brake hoses.  NHTSA issues Federal motor vehicle safety standards applicable to new vehicles and equipment. Chapter 301 of Title 49 of the United States Code, "Motor Vehicle Safety" (Vehicle Safety Act) [1] , establishes a "self-certification" process under which each manufacturer is responsible for certifying that its products meet all applicable Federal motor vehicle safety standards.

NHTSA tests vehicles and equipment for compliance with the Federal motor vehicle safety standards and investigates defects relating to motor vehicle safety. If a manufacturer or NHTSA determines that a noncompliance or safety-related defect exists, the manufacturer must notify owners and purchasers of its product and remedy the problem free of charge.

Each of this agency's safety standards specifies the test conditions and procedures that this agency will use to evaluate the performance of the vehicle or equipment being tested for compliance with the particular safety standard. NHTSA follows these specified test procedures and conditions when conducting its compliance testing.

Manufacturers are not required to test their products in the manner specified in the relevant safety standard, or even to test the product at all, as their basis for certifying that the product complies with all relevant standards. A manufacturer may choose any valid means of evaluating its products to determine whether the vehicle or equipment will comply with the safety standards when tested by the agency according to the procedures specified in the standard and to provide a basis for its certification of compliance.

If the agency has reason to believe that an apparent noncompliance exists in a vehicle or item of equipment, the manufacturer is asked to show the basis for its certification that the vehicle or equipment complies with the relevant safety standard or standards. If in fact there is a noncompliance, the manufacturer will have to recall the product to bring it into compliance at no charge to the customer. In addition, the manufacturer will be subject to civil penalties unless it can establish that it had no reason to know despite exercising "reasonable care" in the design and manufacture of the product (through actual testing, computer simulation, engineering analysis, or other means) to ensure compliance, that the product did not in fact comply with the safety standards (49 U.S.C. 30112(b)(2)(A)). In addition, a manufacturer is prohibited from selling or making available for sale any vehicle or equipment that does not comply with all applicable Federal motor vehicle safety standards.

We cannot provide you with assurance that relying on testing conducted for Canadian and Australian standards would be sufficient to demonstrate "reasonable care." This agency has long said that it is unable to judge what efforts would constitute "reasonable care" in advance of the actual circumstances in which a noncompliance occurs. What constitutes "reasonable care" in a particular case depends on all relevant facts, including such things as the limitations of current technology, the availability of test equipment, the size of the manufacturer, and, above all, the diligence exercised by the manufacturer.

I hope this information is helpful. If you need further assistance, please contact George Feygin of my staff at this address or at (202) 366-2992.

Sincerely,

Jacqueline Glassman
Chief Counsel

ref:106
d.8/12/03





---

[1] 49 U.S.C. 30101 et seq.

ID: GF005899

Ms. Robin C. DesCamp
Blount International, Inc.
PO Box 22127
Portland , OR 97269-2127

Dear Ms. DesCamp:

            This responds to your August 26, 2004, letter and subsequent e-mail to George Feygin of my staff. You ask whether various items manufactured by your company for logging purposes would be classified as “motor vehicles” and subject to the agency’s early warning reporting (EWR) regulations (set forth in 49 CFR Part 579) or to our vehicle identification number (VIN) requirements (49 CFR Part 565).  As explained below, based on the information you provided, we do not consider the items to be motor vehicles for the purposes of our regulations. Thus, the EWR and VIN requirements do not apply.

           Title 49 U.S.C Chapter 301 authorizes the National Highway Traffic Safety Administration (NHTSA) to prescribe Federal motor vehicle safety standards (FMVSSs) applicable to new motor vehicles and new items of motor vehicle equipment. Section 30102(a)(6) defines “motor vehicle” as:

“[A] vehicle driven or drawn by mechanical power and manufactured primarily for use on the public streets, roads, and highways, but does not include a vehicle operated only on a rail line.”

NHTSA has issued several interpretations of this language. We have stated that vehicles equipped with tracks, agricultural equipment, and other vehicles incapable of highway travel are not motor vehicles. We have also determined that certain vehicles designed and sold solely for off-road use (e.g., airport runway vehicles and underground mining vehicles) are not motor vehicles, even if they may be operationally capable of highway travel. Finally, we have concluded that items of mobile construction equipment that use the highways only to move between job sites and that typically spend extended periods of time at a single site are not motor vehicles. However, we do consider vehicles that use the public roads on a necessary and recurring basis to be motor vehicles.

In the present case, the information you have provided describes specialized cranes and loaders made for delimbing and loading logs. Although the cranes are equipped with wheels, the pictures and the description of the logging cranes indicate that they are intended to remain at a single location for prolonged periods of time. Your letter confirms that these cranes are moved only infrequently between logging sites.

Based on this information, it appears that the logging cranes are akin to airport runway vehicles or items of mobile construction equipment that do not travel on highways on a recurring basis. Accordingly, we find that the logging cranes described in your letter are not “motor vehicles.” Because these machines are not motor vehicles, they are not subject to our regulations and requirements, including those of the EWR and VIN programs. 

I hope you find this information helpful.  If you have any other questions please contact Mr. George Feygin at (202) 366-2992.

Sincerely,

Jacqueline Glassman

Chief Counsel

ref:571

d.11/5/04

ID: GF005903

Mr. Mark Jagow
Pacific Coast Retreaders
333 Hegenberger Road, Suite 705
Oakland, CA 94621-1463




Dear Mr. Jagow:

This is in response to your June 1, 2005, letter in which you ask about certain tire marking requirements in Federal Motor Vehicle Safety Standard (FMVSS) No. 119, New pneumatic tires for vehicles other than passenger cars. Specifically, you ask if you are required to mark the maximum single load rating on tires intended to be used exclusively in tandem. Our answer is yes.

S6.5(d) of FMVSS No. 119 requires that the truck tires be marked on each sidewall with, among other things, the maximum load rating and corresponding inflation pressure for the particular tire. This information must be "shown as follows":

(Mark on 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.

(Mark on tires rated only for single load): Max load __kg (__lb) at __kPa (__psi) cold.

Different labeling requirements thus apply depending on whether tires are rated for "single and dual load" or "only for single load".We interpret this provision to require all tires to be rated and marked in one of these two manners; i.e., it is not permissible to mark tires as rated only for dual load. Thus, truck tires rated for dual load applications, including those produced solely for tandem use, must also be labeled with the maximum single load rating in addition to the dual load rating. This is because the tires intended for tandem use could nevertheless be purchased and installed in single application. We believe there is a safety benefit in informing vehicle operators who may use your tires in a way that you did not intend; i.e., in a single application, that the load ratings are different when the tires are not installed in tandem.

I hope you find this information helpful. If you have further questions, you may contact Mr. George Feygin of my staff at (202) 366-2992.

Sincerely,

Stephen P. Wood
Assistant Chief Counsel
for Vehicle Safety Standards and Harmonization

ref:119
d.9/7/05

ID: GF005919

Mr. Robert Strassburger
Vice President, Safety and Harmonization
Alliance of Automobile Manufacturers
1401 H Street, NW, Suite 900
Washington, DC 20005




Dear Mr. Strassburger:

This responds to your July 1, 2005, letter asking us to clarify certain issues discussed in our response to petitions for reconsideration of the April 4, 2004, final rule expanding parts marking requirements. Specifically, you ask us to clarify the phase-in calculation procedures, and how exempted vehicle lines should be considered relative to the phase-in calculation.

On May 19, 2005, the National Highway Traffic Safety Administration (NHTSA) published its response to petitions for reconsideration of the final rule expanding parts marking requirements (see 70 FR 28843). As a part of this response, we adopted a phase-in of the expanded parts marking requirements over a two-year period. Specifically, a new section 541.3(c) reads as follows:

"For vehicles listed in subparagraphs (1)(i) to (iv) of this section that are (1) not subject to the requirements of this standard until September 1, 2006, and (2) manufactured between September 1, 2006, and August 31, 2007; a manufacturer needs to meet the requirements of this part only for lines representing at least 50% of a manufacturers total production of these vehicles." [emphasis added]

In your letter, you describe two possible interpretations of the phase-in requirement. In short, the first interpretation states that at least 50% of the production volume of the affected vehicles must be marked beginning September 1, 2006. The second interpretation states that at least 50% of the affected vehicle lines must be marked beginning September 1, 2006. To illustrate your question, you also offered the following hypothetical example:

Manufacturer XYZ has seven vehicle lines that are affected by the parts marking expansion.

Line	Production Volume
A	500,000
B	300,000
C	200,000
D	200,000
E	100,000
F	100,000
G	100,000
Total:	1,500,000

The first interpretation is correct and accurately reflects the regulatory text.That is, at least 50% of the production volume of affected vehicles must be marked beginning September 1, 2006. Using the example provided in your letter, the XYZ manufacturer could comply with the phase-in by marking the A and B lines, or A and C and E (or F or G lines) because together, these lines represent more than 50% of the production volume of affected vehicles.

The second interpretation does not accurately reflect the regulatory text because at least 50% of the vehicle lines (instead of the actual vehicles) could nevertheless amount to a smaller percentage of the vehicle fleet subject to the expanded parts marking requirements. For example, if the XYZ manufacturer marks lines D through F, the number of lines marked (4) will exceed 50% but the number of vehicles marked (500,000) would amount to less than 34% of the affected fleet. This outcome was not contemplated by the agency when issuing the response to petitions for reconsideration.

We note that the discussion on page 28848 of the preamble, which you believe raises the question of how to interpret the phase in requirements, sought to underscore the necessity of marking the entire vehicle line chosen for phase-in. For example, if the XYZ manufacturer chooses to mark A, C, and E lines, it must not stop marking the E vehicle line, once the total number of marked vehicles reaches 750,001.

You also ask how the exempted vehicle lines should be considered relative to the phase-in calculation. You are correct to note that the newly exempted vehicle lines must be included in the numerator and the denominator when calculating compliance with the phase-in. Using the XYZ manufacturer example, let us assume that vehicle line B was exempted from parts marking requirement. If XYZ manufacturer marks vehicle line A, it would be in compliance with the phase-in requirements because vehicle lines A and B represent more than 50% of the affected vehicles.

Finally, in your letter, you suggest that the agency amend the scope of the de minimis exemption for vehicle lines manufactured in quantities of not more than 3,500. That language currently reads as follows:

"(b) Exclusions. This standard does not apply to the following:

(2) Passenger motor vehicle parts identified in 541.5(a) that are present in a line with an annual production of not more than 3,500 vehicles."

You ask that we change the regulatory language such that the vehicle lines sold in the U.S. in quantities of not more than 3,500 would be exempted. We believe that no amendment is necessary. Ordinarily, our standards apply only to vehicles manufactured for sale in the Unites States. Thus, the de minimis exemption applies to vehicles lines manufactured in quantities of not more than 3,500 for sale in the U.S.

If you need further assistance, please contact George Feygin of my staff at this address or at (202) 366-2992.

Sincerely,

Jacqueline Glassman
Chief Counsel

ref:541
d.8/5/05

ID: GF005930

Mr. Greg Hayes
Benson International
PO Box 970
Mineral Wells, WV 26150

Dear Mr. Hayes:

This letter is in response to your e-mail asking whether a previous interpretation letter from this agency to Mr. Larry Strawhorn is still valid. Specifically, you ask whether it is permissible to take power from the antilock brake system (ABS) power circuit of a semi-trailer in order to power other semi-trailer devices. You also ask whether it is permissible to take power directly from the ABS module.

By way of background, the National Highway Traffic Safety Administration (NHTSA) does not provide approvals of motor vehicles or motor vehicle equipment. Under 49 U.S.C. Chapter 301, manufacturers are required to certify that their vehicles and equipment meet applicable requirements. The issues raised by your letter are addressed below.

The Federal standard applicable to ABS systems in trucks and trailers with air brakes is Federal motor vehicle safety standard (FMVSS) No. 121, Air brake systems.

In a November 17, 1995, letter of interpretation addressed to Mr. Larry Strawhorn of the American Trucking Associations, the agency stated that under S5.1.6.3 of FMVSS No. 121, the ABS power circuits sole function must be to provide ABS powering, and other trailer devices may not be powered off this separate electrical circuit.

Subsequently, the agency published a final rule responding to petitions for reconsideration of the rule that required medium and heavy vehicles to be equipped with ABS (61 FR 5949, February 15, 1996). In response to the petitions, the 1996 document changed the requirements from dedicated power for trailer ABS systems to continuous power for trailer ABS systems. The relevant section of that standard now reads as follows:

S5.1.6.3  Antilock power circuit for towed vehicles.Each truck tractor manufactured on or after March 1, 1997, and each single unit vehicle manufactured on or after March 1, 1998, that is equipped to tow another air-braked vehicle shall be equipped with one or more electrical circuits that provide continuous power to the antilock system on the towed vehicle or vehicles whenever the ignition (start) switch is in the "on" ("run") position. Such a circuit shall be adequate to enable the antilock system on each towed vehicle to be fully operable. [emphasis added]

Accordingly, the February 1996 response to the petitions for reconsideration supersedes our November 17, 1995, letter of interpretation because FMVSS No. 121 no longer requires that the ABS power circuits sole function is to provide ABS powering.

To answer your specific question, S5.1.6.3 does not prohibit taking power from the ABS power circuit or the ABS module of a semi-trailer in order to power other semi-trailer devices. We note, however,that in our February 1996 response to petitions, we recognized that powering electrical devices other than the trailer ABS from the ABS power circuit has the potential to compromise the circuits ability to power the trailer ABS. We included a lengthy discussion of this issue in our notice, including a discussion of the types of devices that would not be likely to create problems. A copy of this portion of the notice (61 FR 5949 at p. 5952) is enclosed.

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

Sincerely,

Jacqueline Glassman
Chief Counsel

Enclosure
ref:121
d.10/21/04

ID: GF006103

Larry C. Dickinson, Ph.D.
Manager, Engineering & Technology
Martin Marietta Composites
PO Box 30013
Raleigh, NC 27622

Dear Mr. Dickinson:

This responds to your phone conversation with George Feygin of my staff and subsequent e-mail asking whether Federal Motor Vehicle Safety Standard No. 223, Rear impact guards (FMVSS No. 223), S5.2.2 allows for "elastic deformation" as opposed to plastic deformation. Specifically, you ask whether the requirement that the energy absorption be accomplished by plastic deformation would preclude a material that returns to its original shape (i.e., elastic material).

By way of background, the National Highway Traffic Safety Administration (NHTSA) does not provide approvals of motor vehicles or motor vehicle equipment. Under 49 U.S.C. Chapter 301, manufacturers are required to certify that their vehicles and equipment meet applicable requirements. The issues raised by your letter are addressed below.

FMVSS No. 223 requires that underride guards fitted to new trailers and semitrailers provide a certain amount of energy absorption to lessen the crash forces on a passenger vehicle colliding from the rear. In creating FMVSS No. 223, the agency sought to balance concerns associated with rear impact guards being overly rigid and non-yielding in rear impact crashes against those associated with the guards being insufficiently rigid to prevent intrusion of a trailer into a vehicle occupant compartment. Accordingly, the standard requires that a certain minimum amount of force be absorbed through "permanent yielding" or plastic deformation of the guard. [1] S5.2.2 of the standard states:

" [a] guard  . . .shall absorb by plastic deformation within the first 125 mm of deflection at least 5,650 J of energy at each test location P3."
(emphasis added).

The standards energy absorption requirement cannot be met by elastic deformation for two reasons. First, the language of the standard calls for plastic deformation. Second, the prescribed method of measuring the required energy absorption greatly restricts any elastic qualities of the rear impact guard. Specifically, any energy that the guard returns to the force application device when the load is removed (i.e., the elastic component of the deformation) is subtracted from the total energy absorption for purposes of meeting the requirement.

The requirement that guards absorb energy by plastic deformation was to ensure that the guard did not subsequently return the absorbed energy to the colliding vehicle, because that energy return could increase the chance of death or injury to the occupants. Any immediate rebound occurring after the crash event could pose a threat to passenger vehicle occupants.

In an August 4, 1998, letter to Mr. Toms of Power Brace (copy enclosed), NHTSA stated that the plastic deformation requirement of S5.2.2 does not preclude use of certain elastic materials that return to their original shape very slowly (approximately 24 hours). Based on your conversation with Mr. Feygin, it is our understanding that your question concerned materials that returned to their original shape immediately after impact.

I hope this information is helpful. If you need further assistance, please contact George Feygin of my staff at this address or at (202) 366-2992.

Sincerely,

Jacqueline Glassman
Chief Counsel

Enclosure
ref:223
d.10/21/03





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[1] See Preamble to the Final Rule, January 24, 1996 (61 FR 2004 at 2011).