ID: Warning letter re electronic devices (Prospeedo)

ID: Warning letter re electronic devices --Bligidy

ID: WarningLabel-GF

Mr. Gerald Plante
Governmental Affairs
Subaru of America, Inc.
PO Box 6000
Cherry Hill, NJ 08034-6000

Dear Mr. Plante:

This responds to your e-mail of December 19, 2002, concerning certain labeling requirements found in S4.5.1 of Federal Motor Vehicle Safety Standard No. 208, Occupant crash protection (FMVSS No. 208). Specifically you ask what constitutes the "message area" in S4.5.1(b)(2)(ii) and S4.5.1(e)(2)(ii) and the corresponding Figures 8 and 9. Since your correspondence was received, the National Highway Traffic Safety Administration (NHTSA) has added an additional label that is depicted in Figure 11. [1] The new figure mirrors Figure 8 in all respects except for the addition of a new information bullet, and the two labels will be considered together.

S4.5.1(b)(2), S4.5.1(c), S4.5.1(e)(2) detail the warning label requirements for vehicles certified to the advanced air bag requirements of FMVSS No. 208. The required sun visor warning label must conform in content with the label depicted in Figure 8 or Figure 11 of the standard and must also comply with the formatting requirements specified in S4.5.1(b)(2)(i) through S4.5.1(b)(2)(iv). [2] S4.5.1(b)(2)(ii) requires that the message area within the warning label be no less than 30 cm². S4.5.1(b)(2)(iii) contains a separate requirement that the pictogram be no less than 30 mm (1.2 in) in length. For the removable dashboard label depicted in Figure 9, the message area within the warning label must be no less than 30 cm² (S4.5.1(e)(2)(ii)). Figures 8 and 11 do not have a clear demarcation between the text area and the pictogram. Further, part of the required text in Figures 8 and 11, "even with advanced air bags," is located directly above the pictogram.

In your correspondence you offer four possible interpretations of the term "message area" for Figures 8 and 11 and three possible interpretations of the term for Figure 9.

For Figures 8 and 11 the possible options are as follows:
1) the entire label is the message area;
2) all of the label other than the yellow heading area is the message area;
3) all of the label other than the yellow heading area and the pictogram is the message area; or
4) only the portion of the label with bulleted information is the message area.

For Figure 9 the possible options are as follows:
1) the entire label is the message area;
2) all of the label other than the yellow heading area is the message area; or
3) all of the label other than the yellow heading area and the phrase "even with advanced air bags" is the message area.

The message area described in S4.5.1(b)(2)(ii) refers to the text of the label and the introductory statement of "even with advanced air bags," located above the text and the pictogram, but not to the pictogram. We construe the statement "even with advanced air bags" as a part of the message area because it is not shaded yellow and thus is not part of the heading area. The message area for Figure 9 is all of the label other than the yellow header.

Figures 8, 9, and 11 are based on the sun visor air bag labels depicted in Figures 6a, 6b, and 7 of the standard, which were adopted in 1996. Figures 6a and 6b contain a vertical line separating the message area and the pictogram, although the requirement for these lines is not contained within the regulatory text. Figure 7 depicts a temporary dashboard label with no pictogram. In adopting the new label requirements, NHTSA specified separate dimensions for the message area and the pictogram area. In the preamble to the 1996 Final Rule introducing new label requirements, NHTSA stated that "[t]he agency expects that manufacturers will ensure the English text of each labels fills the 30 cm² area." See 61 Fed. Reg. 60206 at 60210, (Nov. 27, 1996). This statement demonstrates NHTSA's intent that the 30 cm² message area contain only text.

When NHTSA published the advanced air bag final rule on May 12, 2000, it adopted the new Figures 8 and 9 with the same minimum message area and pictogram dimensions as the earlier adopted figures. The agency had no intention of reducing the size of the required warning labels. If the pictogram were considered part of the message area in Figures 8 and 11, the effect would be a significant reduction in the minimum size requirements for the English text of the label. Such a reduction in size was not contemplated by NHTSA.

In order to clarify how to measure the message area, we are providing an explanation of the following parameters. The "message area" consists of the total label area minus the yellow heading area and the pictogram. The pictogram area is enclosed on the left side and bottom by the edge of the label. The right side of the pictogram is defined by a vertical line midway between the rightmost edge of the pictogram and the left most edge of the text, including any bullets. The top edge of the pictogram area is defined by a horizontal line midway between the uppermost edge of the pictogram and the lowermost edge of the text (see Figure 1).

S4.5.1(e)(2)(ii) requires that a message area within the Figure 9 warning label be no less than 30 cm². Unlike the aforementioned warning label specified in S4.5.1(b) and Figures 8 and 11, the S4.5.1(e) warning label does not have a pictogram. Rather, it contains only a yellow heading area and a message area. As with Figures 8 and 11, the statement "even with advanced air bags" is a part of the message area because it is not shaded yellow and thus is not part of the heading area. Accordingly, the message area comprises the entire lower part of label below the heading area shaded in yellow (see Figure 2).

I hope you find this information helpful. If you have any other questions, please contact George Feygin of my staff at this address or by phone at (202) 366-2992.

Sincerely,

Jacqueline Glassman
Chief Counsel

Enclosure
Ref:208
d.5/6/03





Figure 1. "message area" is represented by broken lines



• NOTE: the above diagram is not to scale and does not include the required pictogram and shading





Figure 2. "message area" is represented by broken lines




• NOTE: the above diagram is not to scale and does not include the required shading





---

[1] See 68 FR 504, January 6, 2003, NHTSA Docket No. NHTSA-02-14165.

[2] Figure 11 will become the mandatory label on all vehicles certified to the advanced air bag requirements on or after September 1, 2003. Prior to that date, vehicle manufacturers may use either Figure 8 or Figure 11 for vehicles certified to the advanced air bag requirements.

ID: Warren.1

Ms. Ellen Warren
Vuenyx
17 Cote des Neiges Road
Nepean, Ontario K2G 2C3
Canada

Dear Ms. Warren:

This responds to your November 3, 2003 letter asking which Federal motor vehicle safety standards (FMVSSs), if any, would be applicable to a product your company is developing for installation in motor vehicles. The product is a video-based, forward-looking collision avoidance device consisting of a digital video camera mounted inside the front windshield, near the rearview mirror, that is connected to a processor mounted on or under the dashboard. The products goal is to "help prevent the most common types of collisions by providing warnings of undesired lane departures, high closure rates with objects in the path and failure to decelerate when approaching stop signals." I am pleased to have the opportunity to explain our regulations and to discuss how they may affect your product.

By way of background information, the National Highway Traffic Safety Administration (NHTSA) is authorized to issue Federal motor vehicle safety standards that set performance requirements for new motor vehicles and items of motor vehicle equipment. NHTSA does not provide approvals of motor vehicles or motor vehicle equipment. Instead, it is the responsibility of manufacturers to certify that their products conform to all applicable safety standards (see 49 CFR Part 571) before they can be offered for sale. NHTSA enforces compliance with the standards by purchasing and testing vehicles and equipment, and we also investigate safety-related defects.

NHTSA has not issued any FMVSSs establishing performance standards directly applicable to your product. However, installation of your product may affect a vehicles compliance with several safety standards.

If the device is installed as original equipment on a new vehicle, the vehicle manufacturer is required to certify that, with the device installed, the vehicle satisfies the requirements of all applicable Federal safety standards. If the device is added to a previously certified new motor vehicle, prior to its first sale, the person who modifies the

vehicle would be an alterer of a previously certified motor vehicle and would be required to certify that, as altered, the vehicle continues to comply with all of the safety standards affected by the alteration. You will find the specific certification requirements at 49 CFR Part 567, Certification.

If your device is installed on a used vehicle by a business such as a garage, the installer would not be required to attach a certification label. However, a manufacturer, distributor, dealer, or vehicle repair business may not knowingly "make inoperative" any device or element of design installed on or in a motor vehicle in accordance with any FMVSS. 49 U.S.C. 30122. Although the "make inoperative" provision does not apply to equipment attached to or installed on or in a vehicle by the vehicle owner, NHTSA urges vehicle owners not to degrade the safety of any system or device in their vehicles.

In order to determine how installation of your video camera system could affect vehicle compliance with applicable Federal safety standards, you should carefully review each standard contained in 49 CFR Part 571. However, there are certain standards (discussed below) of which you should be particularly aware.

First, I would draw your attention to paragraph S5.3.5 of FMVSS No. 101, Controls and Displays, which places a limitation on sources of illumination within the passenger compartment, in order to prevent glare visible to the driver. Although your letter does not indicate the type of output associated with your crash avoidance system (e.g., light, sound, or some combination thereof), any related monitor or display would be required to control glare as required under S5.3.5.

You should assess also your products effect upon a vehicles compliance with FMVSS No. 201, Occupant Protection in Interior Impact, and FMVSS No. 208, Occupant Crash Protection, which are designed to protect drivers and passengers, both by ensuring the crashworthiness of the vehicle and by reducing injuries resulting from contact with various interior components.

In discussions with Eric Stas of my staff, you mentioned the foreseeable potential for your products to be adapted to rearward application. Consequently, you may wish to be aware of NHTSAs ongoing rulemaking in which we are considering establishing a performance standard for rear object detection, as part of FMVSS No. 111, Rearview Mirrors.NHTSA published an Advanced Notice of Proposed Rulemaking (ANPRM) on this topic on November 27, 2000, which included consideration of a rear video system as a compliance option under a future standard (see 65 FR 70681). We expect to issue a notice of proposed rulemaking in 2004.

Beyond compliance with relevant federal safety standards, manufacturers of motor vehicle equipment have additional responsibilities, including a requirement to notify purchasers about safety-related defects and to provide a remedy free of charge, even if their equipment is not covered by a safety standard. 49 U.S.C. 30118-30120.

In addition, you should be aware that other governmental entities may have authority over your product. For example, the Departments Federal Motor Carrier Safety Administration (FMCSA) has jurisdiction over commercial vehicles and interstate motor carriers operating in the United States.You may wish to contact FMCSA for further information about any FMCSA regulations that may apply to your system. In addition, States have the authority to regulate the use and licensing of vehicles operating within their jurisdictions. Therefore, you may wish to check with the Department of Motor Vehicles in any State in which the equipment will be sold or used regarding any such requirements.

For your further information, I am enclosing a fact sheet we prepared titled Information for New Manufacturers of Motor Vehicles and Motor Vehicle Equipment. I hope you find this information useful. If you have further questions, please feel free to contact Eric Stas at this address or by telephone at (202) 366-2992.

Sincerely,

Jacqueline Glassman
Chief Counsel

Enclosure
ref:111
d.1/21/04

ID: wastec.ztv

Mr. Gary Satterfield
Vice President
Waste Equipment Technology Association
4301 Connecticut Avenue, N.W., Suite 300
Washington, D.C. 20008

Re: Request for Interpretive Letter TREAD Act Regulations

Dear Mr. Satterfield:

This is in reply to your letter of March 10, 2003, received on March 26, asking several questions about the status of members of the Waste Equipment Technology Association (WASTEC) under the early warning reporting (EWR) regulations (Subpart C, 49 CFR Part 579). You presented five possible scenarios in seeking our guidance. Your first scenario is:

1. A customer . . . purchases a chassis . . . and arranges delivery of the chassis to the waste vehicle equipment manufacturer. Th[is] . . . manufacturer builds a . . . body and mounts [it] onto the chassis. . . . The chassis manufacturer is responsible for vehicle certification under 49 C.F.R. Part 567. Under this scenario, WASTEC . . . suggests that the waste vehicle equipment manufacturer should be classified as an "equipment manufacturer" for TREAD Act purposes.

As we read your letter, the second scenario is identical to the first scenario except that the waste vehicle equipment manufacturer, rather than its customer, is the purchaser of the chassis. We have not defined "chassis" for purposes of compliance with either the early warning reporting requirements or the Federal motor vehicle safety standards. For the purpose of answering your questions, we shall assume that a chassis is an "incomplete motor vehicle" as defined by 49 CFR Part 568.

Furthermore, under these first two scenarios, we interpret the words "is responsible for vehicle certification" as meaning that the chassis manufacturer, as an "incomplete vehicle manufacturer" and as permitted by 49 CFR 568.7(a), assumes responsibility for certifying compliance of the completed vehicle in the manner specified by Part 567. Where a vehicle is manufactured in two or more stages, we regard the manufacturer that certifies the completed vehicle as the one who must report as a vehicle manufacturer for purposes of the EWR regulation. If they produced 500 or more vehicles

per year, such manufacturers would be subject to the reporting requirements of Section 579.22 , applicable to medium/heavy truck manufacturers, or Section 579.21, applicable to light vehicle manufacturers, as discussed below. The waste vehicle equipment manufacturer therefore would be regarded as a manufacturer of original equipment, subject to the reporting responsibilities of 49 CFR 579.27.

Under the third scenario, the waste vehicle equipment manufacturer certifies compliance of the completed vehicle as its manufacturer. You believe that "the waste vehicle equipment manufacturer should be classified as a "Medium/Heavy Truck Manufacturer" for EWR purposes. You have not provided the GVWR of a representative certified vehicle, but a vehicle is classified as a "medium/heavy vehicle" for purposes of early warning reporting by its manufacturer if the vehicles GVWR is greater than 10,000 lbs. If the completed vehicle certified by the waste vehicle equipment manufacturer has a GVWR greater than 10,000 lbs, then the manufacturer would report as the manufacturer of a "medium-heavy vehicle." See Section 579.22. If the GVWR is 10,000 lbs. or less, the manufacturer would report as the manufacturer of a "light vehicle." See Section 579.21.

The fourth scenario is similar to that of the first two scenarios in that the waste vehicle equipment manufacturer manufactures a body and the chassis manufacturer certifies the completed vehicle. However, in this scenario, the distributor of the vehicle mounts the body to the chassis. In this case, the distributor would be the vehicle manufacturer, and the waste vehicle equipment manufacturer that provides a body but does not certify the completed vehicle would be a manufacturer of original equipment that would report under Section 579.27.

Under the fifth scenario:

5. A waste vehicle equipment manufacturer purchases a chassis from a chassis manufacturer [and] manufactures a trailer unit that includes a compaction system, and installs it onto the chassis. The chassis manufacturer is responsible for vehicle certification under 49 C.F.R. Part 567. Under this scenario, WASTEC respectfully suggests that the waste vehicle equipment manufacturer should be classified as a "Trailer Manufacturer" for TREAD Act purposes.

As with earlier scenarios, this scenario concerns a vehicle manufactured in two stages, in this instance, a trailer. Part 568 allows certification of the completed trailer by either the manufacturer of the incomplete vehicle or by the final stage manufacturer. In your scenario the trailer would be certified by the incomplete vehicle manufacturer, i.e., the chassis manufacturer. Therefore, it is the chassis manufacturer who would report as a trailer manufacturer under the early warning regulation, not the waste vehicle equipment manufacturer, even though the latter completed the assembly of the vehicle. A final stage manufacturer that does not certify the vehicle is, as in the other scenarios, a manufacturer of original equipment under Section 579.27.

You have also presented a hypothetical situation under all five scenarios in which some chassis components might be modified during the assembly process either by the waste vehicle equipment manufacturer or by a third party under contract with it. You believe that "the waste equipment manufacturer should continue to be classified as suggested in scenarios 1 through 5 above." We note that our opinion regarding scenario 3 differed from your suggested resolution. However, our previous answers remain valid, and are not affected by the hypothetical in which chassis components are modified either by the waste equipment manufacturer or its agent.

Finally, you have asked whether these interpretations would change if less than 500 vehicles are "produced, offered for sale, or sold during the applicable calendar year." The answer is no; the relationship between the incomplete and final stage manufacturers (for EWR purposes as, respectively, a vehicle manufacturer and an original equipment manufacturer) would not change unless the final stage manufacturer assumed the obligation to certify the vehicle. However, the chassis manufacturer-certifier, as a manufacturer of fewer than 500 vehicles in each of the categories of the early warning rule, would need to report only the information required by Section 579.27.

If you have further questions, you may call Taylor Vinson of this Office (202-366-5263).

Sincerely,

Jacqueline Glassman
Chief Counsel

ref:579
d.4/29/03

ID: Webb.1

Mr. Sean P. Webb
6 Oak Hollow Drive
St. Peters, MO 63376

Dear Mr. Webb:

This responds to your May 13, 2004, letter, in which you seek clarification regarding certain provisions of Federal Motor Vehicle Safety Standard (FMVSS) No. 108, Lamps, Reflective Devices and Associated Equipment, related to headlamps. In your letter and in a subsequent phone conversation with Mr. Michael Cole of the Office of Vehicle Safety Compliance, you described perceived problems with your 2003 vehicle, which was purchased new and unmodified. Specifically, you stated that your vehicles halogen headlamps (high beams and low beams) and fog lamps periodically "flicker off and on" or change intensity when activated.

In your letter, you asked whether FMVSS No. 108 requires headlamps to be steady-burning and whether "flickering" of the headlamps would impair the standards minimum illumination requirements. Our response to your questions follows.

The relevant section of FMVSS No. 108 reads as follows:

S5.5.10 The wiring requirements for lighting equipment in use are:

(a)     Turn signal lamps, hazard warning signal lamps, and school bus warning lamps shall be wired to flash;
(b)    Headlamps and side marker lamps may be wired to flash for signaling purposes;
(c)     A motorcycle headlamp may be wired to allow either its upper beam or its lower beam, but not both, to modulate from a higher intensity to a lower intensity in accordance with section S5.6;
(d)    All other lamps shall be wired to be steady-burning.

In short, S5.5.10(d) of FMVSS No. 108 requires that all lamps must be steady burning, unless otherwise permitted. The situation that you describe does not appear to fall within any of the exceptions to the steady-burning requirement.

We are unable to comment on the compliance of your specific vehicle with FMVSS No. 108 without conducting independent testing. We note, however, that Mr. Cole confirmed the entry of the information that you provided in the National Highway Traffic Safety Administrations consumer complaints database and provided you with a copy of 49 CFR Part 552, Petitions for Rulemaking, Defect, and Noncompliance Orders, which set forth the procedures for petitioning the agency to examine possible noncompliances or defects in motor vehicles or motor vehicle equipment.

I hope you find this information useful. If you have further questions, please feel free to contact Eric Stas of my staff at this address or by telephone at (202) 366-2992.

Sincerely,

Jacqueline Glassman
Chief Counsel

ref:108
d.6/28/04

ID: wedekind

Lt. Ronald E. Wedekind
Florida Highway Patrol
Bureau of Investigations
1551 E. International Speedway Blvd.
DeLand, FL 32724-8714

Dear Lt. Wedekind:

This is in response to your letter of December16, 1999, concerning a practice being followed by a Florida salvage company with respect to vehicles with electronic odometers.

As you describe the situation, when the company sells vehicles with electronic odometers, it enters the odometer reading on the titles as "999999, Warning - Not Actual Mileage." An odometer reading could be obtained for most of these vehicles by connecting them to a power source, but the company is not taking this step.

You have advised the company that it must secure a power source and read the odometer mileage unless the dash has been destroyed by fire or crash damage. You are requesting our views.

We confirm the advice you gave the company.

The Federal odometer law requires a person who transfers ownership of a vehicle to disclose the vehicle's odometer reading. The transferor must either certify that the mileage is the actual mileage, state that it represents the amount by which the mileage in excess of the designed mechanical odometer limit, or state that it is not the actual mileage and should not be relied on (49 CFR 580.5). In this case, the number 999,999 is not the odometer reading and must not be represented as such, even if accompanied by the words "Warning -- Not Actual Mileage." The company must activate the electronic odometer, note the odometer reading, and state that reading on the title when it transfers ownership. If it has reason to believe that the mileage is not the actual mileage, it may state that fact on the title. The only circumstance in which the company can transfer ownership without stating the reading on the odometer is if the odometer has been destroyed and is incapable of providing a reading.

Sincerely,
Frank Seales, Jr.
Chief Counsel
ref.580
d.1/13/00

ID: weeengin.crs

Mr. Jon Shippee
Wee Engineer Inc.
P.O. Box 39
Dayton, IN 47941

Dear Mr. Shippee:

This is in response to your letter of December 13, 1996, in which you state that Wee Engineer Inc. wishes to be registered with the National Highway Traffic Safety Administration (NHTSA) as a vehicle manufacturer under 49 CFR Part 566. You request our assistance in determining the proper classification of the company as a vehicle manufacturer, and in identifying the necessary actions that the company should take.

As described in your letter, Wee Engineer purchases used tractors and trucks and disassembles the components that were added to those vehicles by previous final stage manufacturers, restoring them to the configuration they were in at the incomplete vehicle stage. The company then may either lengthen or shorten the unit, or add or subtract axles and springs, depending on the application for which the vehicle is intended. Additionally, the company may either raise or lower the gross vehicle weight rating (GVWR) originally assigned to the vehicle to meet its intended application.

You state that Wee Engineer is aware that the original certification label must remain on the vehicle. However, the company is concerned that the GVWR identified on that label will not be accurate following the modifications that it performs. As a consequence, you have asked whether Wee Engineer could add an additional label, identifying the GVWR of the vehicle as reconfigured by the company. Incident to this request, you have asked whether Wee Engineer qualifies as a vehicle manufacturer subject to the vehicle certification requirements in 49 CFR Part 567, and if not, whether there is an exception to those requirements that would allow the company to affix certification labels. Alternatively, you have asked whether Part 567 could be amended to grant certification responsibilities to manufacturers who modify a used vehicle's GVWR or change its classification.

From the information you have provided, it appears that Wee Engineer modifies used vehicles and then installs new body and work performing components on those vehicles. Because the Federal motor vehicle safety standards that are issued by NHTSA apply only to new vehicles, those are the only vehicles that must be certified as complying with the standards under 49 CFR Part 567.

NHTSA has issued a regulation at 49 CFR 571.7(e) that specifies the applicability of the standards to vehicles that are assembled from both new and old components. That regulation provides that "[w]hen a new cab is used in the assembly of a truck, the truck will be considered newly manufactured . . . unless the engine, transmission, and drive axle(s) (as a minimum) of the assembled vehicle are not new, and at least two of these components were taken from the same vehicle."

From your description of the manufacturing operations that Wee Engineer conducts, it appears that the engine, transmission and drive axles on the vehicles it assembles are used, and were all originally found on the same vehicle. As a consequence, Wee Engineer is not required to certify those vehicles under 49 CFR Part 567, and cannot be considered a manufacturer for the purpose of those requirements. As noted in your letter, Wee Engineer must ensure that the original certification label remains on these vehicles. Additionally, to avoid a violation of 49 U.S.C. 30112(b), the company must not "knowingly make inoperative any part of a device or element of design installed on or in [those vehicles] in compliance with an applicable motor vehicle safety standard . . . ."

The manufacturer identification requirements in 49 CFR Part 566 apply only to manufacturers of motor vehicles and motor vehicle equipment to which a motor vehicle safety standard applies. See 49 CFR 566.3. Wee Engineer would not be subject to those requirements unless it performs operations other than those described in your letter, which would result in the production of what this agency would regard as a new vehicle under 49 CFR 571.7(e) (i.e., a vehicle in which the engine, transmission, and drive axle(s) are new, or if used, are taken from three separate vehicles).

In response to your questions regarding Part 567, there is currently no express exception that would allow a party other than the original manufacturer of a vehicle to certify its compliance with applicable safety standards. However, in prior interpretation letters, this Office has recognized that when modifications are made to a used vehicle that change the GVWR identified on its certification label, the modifier is permitted to install an additional label that identifies the GVWR of the vehicle as modified. We have allowed this practice so that owners and users of the vehicle may be apprised as to how heavily the vehicle may safely be loaded.

I hope this information is helpful. If you have any further questions regarding this matter, feel free to contact Coleman Sachs of my staff at the address above, or by telephone at 202-366-5238.

Sincerely,

John Womack

Acting Chief Counsel

ref:567

d:5/2/97

ID: Weight_preemption_000160-3

Mr. David Hirsch
International Ecological Systems, Inc.
24599 Pacific Coast Highway, Suite B201
Malibu, CA 90265




Dear Mr. Hirsch:

This responds to your letter in which you asked what impact a proposed amendment to the Federal definition of low speed vehicle (LSV) would have on a State definition if the Federal proposal were published as a final rule. Your question is addressed below.

The National Highway Traffic Safety Administration established Federal Motor Vehicle Safety Standard (FMVSS) No. 500, Low speed vehicles, to ensure LSVs are equipped with an appropriate level of motor vehicle equipment for the purposes of safety. The agency defines an LSV as a 4-wheeled motor vehicle, except a truck, whose attainable speed in one mile is more than 20 miles per hour (mph) but less than 25 mph (49 CFR 571.3(b)). On December 8, 2003, the agency published a notice of proposed rulemaking to amend the definition of LSV, in part to limit the class to small vehicles (68 FR 68319). We proposed to limit the class of LSV to vehicles whose gross vehicle weight rating (GVWR) is less than 1,134 kilograms (2,500 pounds). That proposal has not been published as a final rule.

In your letter you noted that California has a definition of LSV that limits the class to vehicles that have "an unladen weight of 1,800 pounds or less[. ]"CA Vehicle Code 385.5. You also noted that under California State law, an LSV operated or parked on a public roadway must comply with FMVSS No. 500. See, CA Vehicle Code 21253. You then asked what impact the proposed amendment to the Federal definition of LSV would have on the California law, if the proposed amendment were published as a final rule.

We note that if we issued our proposed amendment as a final rule, there would be an inconsistency in the definition of "low speed vehicle" between the California statute and the Federal motor vehicle safety standards. Under the California statute, the weight limitation aspect of the definition of LSV would be dependent on the unladen weight of the vehicle, while under Federal law it would be dependent on GVWR. This would create the possibility of vehicles being considered different types of vehicles under State and Federal law.

Under 49 U.S.C. 30103(b), when a Federal motor vehicle safety standard is in effect, a State or a political subdivision of a State may prescribe or continue in effect a standard applicable to the same aspect of performance of a motor vehicle or motor vehicle equipment only if the standard is identical to the standard prescribed under this chapter. Different motor vehicle safety standards apply depending on how a vehicle is classified, i.e. , its vehicle type. If a State law classifies a vehicle differently than Federal law, preemption is an issue under 49 U.S.C. 30103(b) if: (1) the State classification results in the vehicle being subject to a State standard applicable to the same aspect of performance regulated by a FMVSS, and (2) the State standard is not identical to the FMVSS. In such an instance the State safety standard would be preempted.

If you have any further questions, please contact Mr. Calamita at (202) 366-2992.

Sincerely,

Jacqueline Glassman
Chief Counsel

ref:500
d.3/17/05

ID: Weiler.1.wpd

Mr. Heinz-Gerd Weiler
Siemens Restraint Systems GmbH
Carl-Zeiss-Str. 9
D-63755 Alzenau
Germany

Dear Mr. Weiler:

This responds to your March 24, 2004, e-mail to Roger Saul, in which you seek clarification regarding the effective date for new or modified test requirements when various Federal motor vehicle safety standards (FMVSSs) are amended. You are concerned because your firm is involved in engineering and vehicle crash testing. Specifically, you ask whether, after a vehicle is already in production or the certification test program for such a vehicle is underway, it is necessary to repeat the relevant tests using the new test methods (or whether the original testing remains valid). If new testing is required, you ask at what point such testing must commence (e.g., within a specified time limit after the effective date of the changes or at the start of the next model year) in order for the vehicle to be sold in the U.S.

We would like to begin by explaining that the National Highway Traffic Safety Administration (NHTSA) is authorized to issue FMVSSs that set performance requirements for new motor vehicles and items of motor vehicle equipment. NHTSA does not provide approval of motor vehicles or motor vehicle equipment. Instead, manufacturers are required to self-certify that their products conform to all applicable safety standards that are in effect on the date of manufacture (see 49 U.S.C. 30115 and 49 CFR Part 567, Certification). Each vehicle must be so certified.

Periodically, the agency may amend FMVSSs. In some instances, amendment of a standard may involve modification of existing test procedures. Each final rule amending a standard is published in the Federal Register and specifies an effective date for the changes to the standard. For motor vehicles or motor vehicle equipment produced on or after that effective date, manufacturers are required to certify compliance with the standard as modified, including any new testing requirements.

As further clarification, we note that each of this agencys safety standards specifies the test conditions and procedures that NHTSA will use to evaluate the performance of the vehicle or equipment being tested for compliance with the particular safety standard. NHTSA follows the test procedures and conditions in effect at the time of vehicle certification 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 applicable 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 motor vehicle equipment, the manufacturer is asked to show the basis for its certification that the vehicle or equipment complies with the relevant safety standard(s). 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 standard(s) (49 U.S.C. 30115(a) and 30165). 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 you find this information useful. If you have further questions, please feel free to contact Eric Stas of my staff at this address or by telephone at (202) 366-2992.

Sincerely,

Jacqueline Glassman
Chief Counsel

ref:567
d.5/10/04