ID: nht95-6.21

TYPE: INTERPRETATION-NHTSA

DATE: August 28, 1995

FROM: Lawrence A. Beyer, Esq. -- Attorney for Liphardt & Associates

TO: Administrator -- NHTSA

TITLE: Petition for Exemption for Inconsequential Defect or Noncompliance

ATTACHMT: ATTACHED TO 10/20/95 LETTER FROM JOHN WOMACK TO LAWRENCE A. BEYER (A43; REDBOOK 2; PART 556)

TEXT: This petition for inconsequential defect or noncompliance is submitted under 49 CFR Part 558, on behalf of:

Liphardt & Associates 15 Trade Zone Drive Ronkonkoma, NY

a New York State corporation.

[Illegible Lines]

The non-compliance relates to

49 CFR Part 592.5(f) Notification of change of facility information:

49 CFR Part 592.8(e) Hold period for inspection

49 CFR Part 592.6(f) Poor compliance photography

49 CFR Part 592.6(d) Label may not have correctly identified RI

BACKGROUND:

Liphardt & Associates has been a DOT Registered Importer since 1990, concentrating in the importation of noncomplying vehicles from Europe. However in 1994, due to sudden economic conditions, importation of vehicles from the Canadian market to the US market became viable, and there was significant need for Registered Importers to assist in vehicle importation and certification. The Office of Vehicle Safety Compliance (OVSC) was also deluged with Canadian vehicle importation situations. Liphardt was approached by a Customs House Broker in upstate New York, and was requested to set up an additional facility for the processing (modification, documentation and holding) of [Illegible Line] this facility. It turns out that Liphardt's control over these vehicles was lost, that the processing was handled by persons other than Liphardt authorized personnel and the inconsequential defect or noncompliance occurred. Liphardt notified OVSC of this situation in February, 1995 and conducted its own investigation. In March, 1995, Liphardt voluntarily suspended all Canadian importations, and met informally with NHTSA staff.

SAFETY COMPLIANCE

NHTSA has reviewed compliance packages submitted on these vehicles, and the vast majority have been deemed sufficient for release of compliance bond.

Canadian vehicles, for the most part, differ from US FMVSS only in the following areas:

1. Odometer may not be labeled KM;

2. Passive restraint systems for passenger cars;

Certification Labels must also be affixed to the vehicles in accordance with 49 [Illegible Word]

Many odometers are labeled KM by the original manufacturer. In any event, the odometer/speedometer is routinely changed to a miles based instrument, since the marketability of kilometer based vehicles is severely impaired. All passenger [Illegible Word] Certification labels may have misnamed the Registered Importer. While this in unfortunate, the purpose of naming the RI on the certification label is to ensure that the responsible RI is known for subsequent defect/recalls. OVSC maintains a very accurate computer system in which the VIN and the responsible RI are listed. Therefore, if a vehicle with the wrong name listed on the RI section of the certification label was involved in a situation where the actual RI needed to be involved, NHTSA could easily provide the correct RI name.

Clearly these defects and non-compliance are not significant and are inconsequential to vehicle safety. Liphardt has tried to work within the regulatory framework to advise OVSC of the situations and seeks this petition and exemption process to finalize this matter.

Liphardt has corrected the cause of the noncompliance and will continue to abide by the duties of a registered importer as defined in 49 CFR 592.

Thank you.

ID: nht95-6.22

TYPE: INTERPRETATION-NHTSA

DATE: August 28, 1995

FROM: Joseph J. Smith -- Assistant Chief Maintenance Officer, Technical Services & Maintenance Support, Department of Buses, New York Transit Authority

TO: John Womack -- Office of Chief Counsel, NHTSA

TITLE: NONE

ATTACHMT: ATTACHED TO 9/29/95 LETTER FROM JOHN WOMACK TO JOSEPH J. SMITH (A43; STD. 302)

TEXT: Dear Mr. Womack:

I am requesting interpretation of NHTSA Standard No. 302; Flammability of interior materials (49 CFR Ch. V, 10-1-94 Edition, para. 571.302).

The Department of Buses, MTA New York City Transit, has been notified by a supplier of air conditioning (A/C) return air filters that their filters do not meet Standard No. 302.

The A/C filters that the DOB utilizes on RTS 04 and 06 model buses are located on the top of A/C evaporator coil. Although the A/C filters are not mentioned in para. S4.1 of the Standard No. 302, they may, in our opinion, be affected by requirements of para. S4.2, being separated from the bus interior only by a louvered panel. This area (which the filters occupy) cannot be clearly defined whether it falls into the category of occupant compartment air space.

The copies of some selected pages from the bus service and parts manuals are attached for your reference.

It would be greatly appreciated if you could clarify whether the A/C return air filters must conform to the Standard No. 302. If you need any additional information, please contact Sol. Zhodzishsky of my staff at tel. 718 927-7634 (fax 718 927-8079)

I would like also to thank Mr. Marvin Shaw for his expedient response to our verbal inquiries.

(MANUALS OMITTED.)

ID: nht95-6.23

TYPE: INTERPRETATION-NHTSA

DATE: August 29, 1995

FROM: John Womack -- Acting Chief Counsel, NHTSA

TO: Kenneth Zawlocki

TITLE: NONE

ATTACHMT: ATTACHED TO 5/25/95 LETTER FROM KENNETH ZAWLOCKI TO CHIEF COUNSEL (OCC-10949)

TEXT: Dear Mr. Zawlocki:

This responds to your request for an interpretation of Standard No. 218, Motorcycle Helmets. Your questions are addressed below.

You first ask whether the Penetration Test (S7.2) tests the outer shell of the helmet, the Impact, Attenuation Test (S7.1) tests inner protection materials, and the Retention System Test (S7.3) tests straps that hold the helmet on the head. Each of these tests measures the performance of a motorcycle helmet as a total system, i.e., the tests are conducted on a motorcycle helmet as a whole, rather than on helmet components. Therefore, the tests are not limited to measuring the performance of the components you cite. By way of example, while the shell of the helmet may play a critical role in a helmet's resistance to penetration, the composition and thickness of the liner may also be important. Similarly, while certain components are more important than others in meeting certain criteria, overall design and construction of the helmet will determine whether it meets the impact attenuation and retention requirements.

You next ask whether Standard No. 218 specifies the types or amounts of material to be used in manufacturing helmets. Standard No. 218 specifies performance requirements for motorcycle helmets. A manufacturer may use any types or amounts of materials that enable the manufacturer to fully comply with the standard.

While Standard No. 218 does not specify that certain materials must be used in manufacturing a helmet, the National Highway Traffic Safety Administration's (NHTSA) experience in over 20 years of helmet testing indicates that helmets meeting Standard No. 218 have common characteristics. The first of these is a dense foam liner that is approximately one inch thick. Helmets with thinner liners or liners composed of a soft compressible foam are not likely to meet the impact attenuation or penetration requirements of the Standard. The weight of the helmet, while not governed by any section of Standard No. 218, is also a good indicator of how it will perform in testing. Although it may be technically possible to build a lightweight helmet that satisfies the performance requirements of Standard No. 218, NHTSA is not aware of any motorcycle helmet weighing less than three pounds that has done so.

Finally, you ask whether Standard No. 218 precludes decorating a helmet with any material such as leather or cloth, or with items such as wigs, flowers, decals or hats.

The various helmet decorations you describe could affect a motorcycle helmet's compliance with a variety of Standard No. 218's performance requirements. One example is S5.5, Projections. The inside of the shell must be free of protruding rivets or other projections. The presence of any projections within the helmet indicates that it is not a complying helmet. Projecting snaps or other objects are permitted on the outside of the helmet only if they are required for essential accessories such as visors or face shields. Any projection on the outside of a helmet must not protrude more than five millimeters.

I note that under 49 U.S.C. @ 30112(a), "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" a new motorcycle helmet that does not comply with Standard No. 218. Also, dealers and repair businesses may not modify new or used motorcycle helmets in a manner that results in the helmet no longer complying with the standard. Any of these parties must therefore ensure that any contemplated decorations would not affect a helmet's compliance with Standard No. 218.

Federal law does not address modifications made by a motorcycle helmet owner to his or her own helmet. However, it is NHTSA's policy to discourage motorcycle helmet users from modifying their helmets. This is because even relatively simple modifications can reduce the safety protection provided by the helmet. S5.6.1(f)(3) of Standard No. 218 requires the following instruction to be placed on helmets: "Make no modifications . . ." I also note that State laws may address modifications made by motorcycle helmet owners to their own helmets.

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

ID: nht95-6.24

TYPE: INTERPRETATION-NHTSA

DATE: August 29, 1995

FROM: Fred H. Pritzker -- Pritzker and Meyer

TO: Kenneth Weinstein -- Chief Counsel, NHTSA

TITLE: NONE

ATTACHMT: 1/3/96 letter from Samuel J. Dubbin to Fred H. Pritzker (A44; Std. 208; VSA 5108(a)(2)(A)

TEXT: I represent a young man who sustained serious brain damage in a motor vehicle collision on July 9, 1994.

At the time of the collision, my client was a rear, driver-side passenger in a 1993 GEO Tracker. The driver of that vehicle apparently fell asleep at which time the vehicle left the roadway, rolled over several times during which time my client and the other vehicle occupants were ejected.

Approximately one month before the collision, the teenage son of the Tracker owner took the vehicle to the local outlet of a national electronics "super store" to upgrade the vehicle's automobile stereo equipment. The installer suggested that optimal output could be obtained if the rear vehicle's seat bench was removed and replaced by a large speaker box. The teenager whose father owned the vehicle agreed and the rear seat was removed and the entire rear portion of the vehicle was fitted with a large speaker enclosure. In doing so, the "female" portion of the seat belt buckle was removed, therefore rendering inoperative the safety restraint system on the vehicle.

The installer who removed the seat and designed the speaker box was not a certified installer and had been on the job for a relatively short period of time. He had never removed automobile safety equipment in previous installations and made no attempt to find out if this was an acceptable practice.

A drawing of the side profile of the speaker enclosure box accompanies this letter. As you can see, there is a ledge on the speaker enclosure not unlike a bench-type seat. Aside from that ledge, there is no other room in the rear portion of the vehicle (with the speaker box in it) to allow passengers to sit. The installer acknowledges that the speaker box was strong enough for a person to sit on. It was also carpeted. The installer also acknowledges that he anticipated that someone might sit on the speaker box and therefore, felt the need to warn the teenage operator not to let anyone do so. He acknowledges, however, that at the time the vehicle operator picked up the vehicle after the installation, he asked the installer if it were possible to affix the female seat buckle into the speaker box (which the installer refused to do).

It was on this speaker box that my client was sitting at the time of the accident.

I have carefully reviewed the National Traffic and Motor Vehicle Safety Act. The definitions of a dealer, distributor and manufacturer at section 30102 would seem to apply to the electronics company whose employee removed the seat and rendered inoperative the safety restraint system, designed and manufactured the speaker enclosure box and installed it into the GEO Tracker. According to the definition, the electronics company is a "dealer" because it sells and distributes motor vehicle equipment. For that same reason, it is a "distributor" and "manufacturer." Obviously, the installed items are "motor vehicle equipment" because they were sold for "replacement or improvement of a system, part or component or as an accessory or an addition to a motor vehicle." It would also appear that the electronics company does repair work and, in fact, removed the prior speaker boxes, cannibalized some of the parts from that and then placed those parts in the new enclosure box installed shortly before the collision. Thus, it would appear that the electronics company meets the definition of a motor vehicle repair business as defined at section 30122.

Clearly, the electronics company violated the statutory prohibition at section 30122(b). It knowingly made inoperative the rear seat and rear safety restraint system installed in the GEO Tracker by the manufacturer. The speaker box was then placed in a "designated seating position" and obviously, failed to comply with the regulations establishing standards for automobile seats and safety restraint systems.

Thus, it would appear that there are two violations of the Act: the removal of the original safety devices and then replacing them with a piece of equipment that was likely to be used as a seat and obviously failed to comply with the regulations for the seat and the safety restraint system.

I would appreciate it if you would call me to discuss the facts of this case and my interpretation of the law applicable to those facts. I am specifically not requesting a written opinion from your agency. At this time, I am merely asking to speak with you about it.

Thank you for your anticipated cooperation.

Drawing and photo omitted.

ID: nht95-6.25

TYPE: INTERPRETATION-NHTSA

DATE: August 29, 1995

FROM: Carrie Stabile; James v. Stabile, III

TO: Office of Chief Council, NHTSA

TITLE: NONE

ATTACHMT: 12/11/95 letter from Samuel J. Dubbin to Carrie Stabile (A43; Std. 108)

TEXT: To Whom It May Concern,

I recently wrote to Senator Alfonse D'Amato regarding both my brother James and my concept on improving the safety of children while loading and unloading on and off the school buses. It is called "VEHICLE ILLUMINATED WARNING SYSTEM". Senator D'Amato contacted Mr. Charles Hott, Safety Engineer, who in return suggested we submit our idea to you, for further review with regards to Vehicle Safety Standards.

The illuminated sign would be specially designed to boldly alert other motorists to the fact that the school bus is in the process of loading or unloading children and should not be passed. The sign would be easily visible during daytime, darkness and poor weather conditions. It is our opinion as well as other bus companies that this system would provide children with a safer loading and unloading zone. Features like the stop sign that extends out from the side of the bus do not effectively alert drivers and the safety of children has been greatly compromised.

Our intention with your approval would be to initiate a pilot study from a supporting bus company to survey its effectiveness and approval from the various school districts. We thank you for your consideration in this matter and look forward to hearing from you with regards to your guidance and support.

Enclosure

IN THE APPLICATION OF JAMES VINCENT STABILE III

CARRIE ANN STABILE For A VEHICLE ILLUMINATED WARNING SYSTEM

Filed With The United States Patent and Trademark Office

(Text omitted)

ID: nht95-6.26

TYPE: INTERPRETATION-NHTSA

DATE: August 30, 1995

FROM: John Womack -- Acting Chief Counsel, NHTSA

TO: Steven B. Fisher, Esq. -- Kostow & Daar, P. C.

TITLE: Re: Motor Vehicle Safety Standard No. 108

ATTACHMT: ATTACHED TO 7/31/95 LETTER FROM STEVEN B. FISHER TO PHILLIP R. RECHT (OCC 11096)

TEXT: Dear Mr. Fisher:

This responds to your letter of July 31, 1995, to Philip R. Recht, formerly Chief Counsel of this agency. You have asked several questions relating to use of the word "practicable" in the lamp location requirements of Federal Motor Vehicle Safety Standard No. 108.

Your first question is "with respect to truck, trailer identification lights (red), what is meant exactly by 'practicable' as used in SS5.3.1.1 and 5.3.1.4." Your second question is whose responsibility it is to make the determination of practicability. Your final question is whether there is any way for a manufacturer of "a single rear identification light" to know where a trailer manufacturer will install the product on any given trailer.

We don't see the word "practicable" in S5.3.1.1. However, S5.3.1.4 does provide that rear clearance lamps need not meet the requirement of Table II that they "be located as close as practicable to the top of the vehicle" when the rear identification lamps are located at the extreme height of the vehicle. Table II specifies location of lighting equipment on the vehicle, and it is therefore the responsibility of the vehicle manufacturer, in certifying that its vehicle complies with all applicable Federal motor vehicle safety standards, to determine what is practicable. As you indicate, a trailer manufacturer may make such a determination "in light of the particular design/configuration of the trailer involved." NHTSA will not contest this determination unless it is clearly erroneous. In short, "practicable" as meant by S5.3.1.4 or any other place where the word occurs, is not a term defined by Standard No. 108, and derives its meaning from specific factual contexts. We note that the Random House Dictionary of the English Language (1967) defines "practicable" as "capable of being done, effected, or put into practice with the available means" (p. 1127).

There is no responsibility under Standard No. 108 for the manufacturer of identification lamps to know where its products will be installed on the motor vehicle. Its responsibility under Standard No. 108 is to ensure that any identification lamp that it manufactures for replacement purposes is designed to conform to Standard No. 108's performance specifications and so certified at the time the lamp is shipped from the factory.

If you have any further questions you may phone Taylor Vinson of this office (202-366-5263).

ID: nht95-6.27

TYPE: INTERPRETATION-NHTSA

DATE: August 30, 1995

FROM: John Womack -- Acting Chief Counsel, NHSTA

TO: Nancy Tavarez -- Bietrix Industries

TITLE: NONE

ATTACHMT: ATTACHED TO 08/08/95 LETTER FROM NANCY TAVAREZ TO JOHN WOMACK (WALMA) (OCC 11118)

TEXT: Dear Ms Tavarez:

This is in response to your FAX of August 8, 1995, with respect to the importation of "Phoenix Halogen Auto Bulbs H4 series, H3, H1 and 9000 series-HB1 for the USA market." We understand that you presently have a shipment of these awaiting entry. You state that "Mr. Taylor Benson recently informed us that these lights required DOT approval."

Taylor Vinson repeatedly informed you on the phone that DOT does not approve bulbs or any other kind of equipment. If there is a Federal motor vehicle safety standard in effect covering an item of equipment, the manufacturer (or importer for resale) is responsible for certifying that the equipment complies with that standard. The certifier does not need DOT permission or approval for that action.

The appropriate Federal regulations in this instance are Federal Motor Vehicle Safety Standard No. 108 Lamps, Reflective Devices, and Associated Equipment and 49 CFR Part 564 Replaceable Light Source Information.

There is no Federal regulation that applies to the H4 bulb. Although the H4 bulb is legal for use only in motorcycle headlamps, neither Standard No. 108 nor Part 564 applies to motorcycle headlamp bulbs, and it is not necessary for H4 bulbs to be certified in order to enter the United States. H4 bulbs may not be used in headlamps for motor vehicles other than motorcycles. However, the HB2 bulb, based on the H4, is legal for use in headlamps for all types of motor vehicles.

If the H1 and H3 bulbs are to be used for auxiliary lamps such as fog lamps, there is no Federal regulation that requires their certification either.

However, if the H1 and H3 bulbs are intended for use in headlamps (the markings on their boxes may indicate this), they are subject to both Standard No. 108 and Part 564. What we require is that the bulb be marked with (1) the name and/or trademark registered with the U.S. Patent and Trademark Office of its manufacturer or of its importer (Bietrix); (2) the ANSI number, ECE identifier, and manufacturer's part number, individually or in any combination; and (3) a DOT symbol. The DOT symbol is the certification by Phoenix or by Bietrix that the H1 or H3 bulb has been designed to conform to the specifications for these bulbs that are on file in Part 564. We believe that Phoenix should be aware of these specifications. For your information, "(1)" is required by paragraphs S7.7(h) and S7.2(b) of Standard No. 108, "(2)" by paragraph S7.7(h) and section VIII of Appendix A of Part 564, and "(3)" by paragraphs S7.7(g) and (h) of Standard No. 108. I am FAXing a copy of paragraph S7.7 and Part 564 for your information.

The HB1 light source is required to be marked with the same information as the H1 and H3 as indicated above, but the authority for this is paragraph S7.7(f); this also requires the base to be marked "HB1". However, the DOT symbol in this instance would represent the certification by Phoenix or by Bietrix that the HB1 bulb has been designed to conform to the specifications of paragraphs S7.7(a) and Figure 3 of Standard No. 108. Again, we believe that Phoenix should be familiar with the specifications for the HB1 light source.

If the HB1 light sources (or H1s and H3s for headlamp use) you wish to import bear all these markings, you may import them under Box 2A of the HS-7 Declaration Form as equipment certified as meeting the standards. If they do not bear these markings, they may not be imported until marked and certified by Phoenix or by Bietrix according to the regulations discussed above.

If you have further questions, please call Mr. Vinson at (202)366-5263.

ID: nht95-6.28

TYPE: INTERPRETATION-NHTSA

DATE: August 30, 1995

FROM: Paul Jackson Rice -- Arent Fox

TO: John Womack, Esquire -- Acting Chief Counsel, Office of the Chief Counsel, NHTSA

TITLE: NONE

ATTACHMT: ATTACHED TO 08/30/95 LETTER FROM JOHN WOMACK TO PAUL JACKSON RICE (REDBOOK 2; STD. 208)

TEXT: Dear Mr. Womack:

I am enclosing a copy of a letter you signed on June 6, 1995, to a plaintiff's attorney named C. Rufus Pennington, III, in which you commented on NHTSA's position on "designated seating positions."

In reading your letter, I have concluded that the Agency is not taking a position as to whether there are "designated seating positions" in the rear of the 1979 911 SC Porsche. Could you confirm that I am correct in my conclusion.

I am also satisfied that your letter was not intended to influence any private litigation concerning the 911 SC Porsche. But as the matter has now become an issue, could you advise as to whether the Agency had any such interest.

ID: nht95-6.29

TYPE: INTERPRETATION-NHTSA

DATE: August 30, 1995

FROM: John Womack -- Acting Chief Counsel, NHTSA

TO: Paul Jackson Rice, Esquire -- Arent Fox

TITLE: NONE

ATTACHMT: ATTACHED TO 08/30/95 LETTER FROM PAUL JACKSON RICE TO JOHN WOMACK

TEXT: Dear Mr. Rice:

This responds to your letter of August 30, 1995, concerning a June 6, 1995 letter from this office to C. Rufus Pennington, III. You asked us to confirm that the agency did not take a position as to whether there are "designated seating positions" in the rear of the 1979 911 SC Porsche.

You are correct. As the letter clearly states, "NHTSA cannot make a determination as to whether a vehicle complied with applicable safety standards outside a compliance proceeding.

I hope this information has been helpful.

ID: nht95-6.3

TYPE: INTERPRETATION-NHTSA

DATE: August 8, 1995

FROM: Nancy Tavarez -- Bietrix Industries, Inc.

TO: John Walmack -- Chief Council ATSA

TITLE: NONE

ATTACHMT: ATTACHED TO 08/30/95 LETTER FROM JOHN WOMACK TO NANCY TAVAREZ (REDBOOK 2; STD. 108)

TEXT: Dear Mr. Walmack:

We are currently importing Phoenix Halogen Auto Bulbs H4 series, H3, H1 and 9000 series-HBI for the USA market. Mr. Taylor Benson recently informed us that these lights required DOT approval. We request you to please inform via fax the procedure to follow in order to obtain DOT approval for our automotive lights.

We greatly appreciate your cooperation in this matter.