ID: Sens_a_brake003065

Mr. Gregory Gibb
Edge International Limited
PO Box 5682
Frankton, Hamilton
New Zealand

Dear Mr. Gibb:

This responds to your inquiry regarding the regulations applicable to a trailer brake system that relies on a combination of air and hydraulics. You asked if a system manufactured by your company, the "Sens-a-Brake" system, would be classified as an air brake system under Federal Motor Vehicle Safety Standard (FMVSS) No. 121, Air brake systems. As explained below, the "Sens-a-Brake" system would be defined as an air-over-hydraulic brake subsystem, and therefore would be an airbrake system under FMVSS No. 121.

I am pleased to have this opportunity to explain our regulations to you. FMVSS No. 121 specifies performance requirements for trucks, buses and trailers equipped with air brake systems. S4 of the standard defines "air brake system" as follows:

Air brake system means a system that uses air as a medium for transmitting pressure or force from the driver control to the service brake, including an air-over-hydraulic brake subsystem, but does not include a system that uses compressed air or vacuum only to assist the driver in applying muscular force to hydraulic or mechanical components. (Emphasis added.)

S4 of the standard defines "air-over-hydraulic brake subsystem" as:

[A] subsystem of the air brake system that uses compressed air to transmit a force from the driver control to a hydraulic brake system to actuate the service brakes.

In your letter you explained that the "Sens-a-Brake" system consists of an electronic brake controller and an air compressor mounted on a trailer, which supplies air for the application of the trailers braking mechanism. Your companys web site states that the electric brake controller incorporates a "pressure sensitive film that enables accurate measurement of the force being applied to the towing vehicles brake pedal."The website further explains that this pad attaches directly to the brake pedal of the tow vehicle. The pedal controller then modulates the air pressure supplied by the air compressor based on the pressure applied to the brake by the vehicle driver. The air pressure then transmits a force to the mechanism used to apply or release the hydraulic trailer brakes.

Based on the description you provided in your letter and the information on your companys website, the "Sens-a-Brake" system comes within definition of "air-over-hydraulic brake subsystem." The "Sens-a-Brake" system transmits a force applied by a vehicle driver to the brake pedal, first through an electrical signal and then through compressed air, to a hydraulic brake system. While the system does not use air as the initial means for transmitting force from the driver control to the hydraulic system, compressed air is used in the system to transmit force from the driver control. Therefore, the "Sens-a-Brake" system would be an "air-over-hydraulic system," which is regulated as an air brake system under FMVSS No. 121.

In your letter, you referenced a previous interpretation letter the agency issued to Mr. Tom Brunson, in which the agency concluded that a system with some similarities to the "Sens-a-Brake" system was not an air brake system (April 4, 2000). However, the system addressed by the letter to Mr. Brunson had one significant difference; the air pressure in that system was controlled primarily through an inertial controller mounted on the back of the tow vehicle. The system in the Brunson letter permitted a driver to control braking through a dash-mounted switch, but the switch was not intended to modulate the pressure applied to the brake mechanism. The primary control for actuating the air compressor in the Brunson letter system was the inertial controller mounted on the rear of the tow vehicle and not the vehicle driver. In contrast, the "Sens-a-Brake" system relies on force generated at the driver control (the force applied to the brake pedal pad) to modulate the application of compressed air to a hydraulic brake.

Similarly, in an October 22, 2001 letter to Mr. Gary Rudnik the agency concluded that a trailer brake system was not an air brake system under FMVSS No. 121 if a trailers brakes activated as a result of the tow vehicles brake lamps illuminating (copy enclosed). Under the system described in the Rudnick letter, the brake pedal would function solely as an on-off switch for the trailer braking system, with the trailers brakes being activated upon illumination of the tow vehicles brake lamps when the driver pressed the tow vehicles brake pedal. However, the system would not transmit force applied by the driver via air to modulate the brakes; the brake pedal merely served as an on-off switch for the trailer braking system. Again in contrast, the "Sens-a-Brake" system relies on force applied to the brake pedal to modulate the application of compressed air to a hydraulic brake.

Thus, if a system were to modulate the amount of air pressure applied to a hydraulic trailer brake mechanism in relation to force applied to a driver control, then that system would be an air brake system. If, however, a driver control were merely to function as an on-off switch, then that system would not be an air brake system under FMVSS No. 121.

We note that when the agency incorporated the definition of "air-over-hydraulic brake subsystem" into FMVSS No. 121, we did not anticipate its application to light duty trailers. At that time, the agency indicated that air-over-hydraulic brake subsystems were installed exclusively on single-unit vehicles with a gross vehicle weight rating greater than 19,500 pounds (See 60 Federal Register 36741; July 18, 1995; copy enclosed). Unless the standard were amended through the rulemaking process, the Sens-a-Brake system is an air brake system under FMVSS No. 121. If you have any further questions, please contact Mr. Chris Calamita, of my staff at (202) 366-2992

Sincerely,

Jacqueline Glassman
Chief Counsel

Enclosures
ref:121
d.6/25/04

ID: Shih.3

Mr. Simon S. Shih
4 Teal
Irvine, CA 92604

Dear Mr. Shih:

This responds to your e-mail, in which you seek clarification regarding the legality of high intensity discharge (HID) headlamp conversion sets, specifically whether it is legal to manufacture or sell sets of HID headlamps to replace original equipment halogen headlamp sets. We are pleased to have the opportunity to answer your questions related to Federal Motor Vehicle Safety Standard (FMVSS) No. 108, Lamps, Reflective Devices and Associated Equipment.

By way of background, 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. As a preliminary matter, we would clarify that we have no authority either to approve or disapprove motor vehicles or items of motor vehicle equipment. We do advise correspondents of the relationship of their products to applicable FMVSSs and other regulations that we administer. If a product is covered by one or more of our safety standards, its manufacturer must certify compliance of the product with all applicable FMVSSs prior to its importation or offering such product for sale. The symbol "DOT" on replacement lighting equipment is often mistaken for "DOT approval" of the equipment, but, in fact, it reflects the manufacturers own certification of compliance.

We believe that your questions are addressed by our March 13, 2003, letter of interpretation to Mr. Galen Chen (see enclosure). In that letter, we interpreted FMVSS No. 108 as requiring headlamps manufactured to replace original equipment headlamps to comply with all applicable photometry requirements using the replaceable light sources intended for use in the headlighting system on the vehicle for which the replacement headlamp is intended. Unlike other lamps, FMVSS No. 108 specifically regulates headlighting systems, including their light sources (see S7.1, S7.5, and S7.7). We adhered to this interpretation in a recent interpretation to Calcoast-ITL (69 FR 60464 (Oct. 8, 2004))(see enclosure).

Because replaceable light sources are, by regulation, designed to be non-interchangeable, it would not be possible for an HID headlamp conversion set to meet the standards photometry requirements for an original equipment headlamp system using a halogen light source, so the replacement lamps could not be sold for this purpose. Furthermore, a headlamp dealer or motor vehicle repair business could not remove the original halogen headlamps and install HID replacement headlamps without violating 49 U.S.C. 30122. That section prohibits manufacturers, distributors, dealers, and motor vehicle repair businesses from making inoperative equipment installed in accordance with a Federal motor vehicle safety standard. We cannot comment on the specific replacement lighting products that you mentioned because we do not have sufficient information on them.

Finally, in a subsequent e-mail, you asked whether our regulations require HID lighting systems to include "auto-leveling" and washing systems, similar to those incorporated in vehicles sold in Europe. The answer is no. FMVSS No. 108 does specify aimability performance requirements under paragraph S7.8 of the standard, but that paragraph does not require an "auto-leveling" capability. The standard also does not contain any requirement for a headlamp washing system.

s it may be of interest to you, we also have enclosed a copy of our November 18, 2002, letter of interpretation to Mr. Jeff Deetz, which relates to kits that substitute the type of light source in existing headlamps.

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

nclosures
ref:108
d.11/2/04

ID: shokspotr

Mr. Gregory S. Beck
Engineering
Yorba Safety Concepts, LLC
15581 Product Lane, Unit C5
Huntington Beach, CA 92649

Dear Mr. Beck:

This responds to your letter requesting information about the relevant safety standards for the "Shok-SpotR^TM," a product designed to detect impacts that may have resulted in damage to a motorcycle helmet. The information you provided states that the Shok-SpotR is a "helmet impact sensor intended to raise the publics level of awareness to helmet impact damage and to visually warn helmet users of potential damage. "The instructions for the product indicate that the sensor is attached to the helmet on the "helmets centerline on the rear half of the helmet, behind the apex or highest point on the helmet. "Your website states that the sensor "mounts on your helmet shell permanently and easily, in a small, attractive, ultra-lightweight housing."

By way of background, the National Highway Traffic Safety Administration (NHTSA) has the authority to issue safety standards for new motor vehicles and new items of motor vehicle equipment. NHTSA does not approve or certify any vehicles or items of equipment. Instead, Congress has established a "self-certification" process under which each manufacturer is responsible for certifying that its products meet all applicable safety standards.

NHTSA has issued Federal Motor Vehicle Safety Standard (FMVSS) No. 218, "Motorcycle Helmets," to reduce deaths and injuries to motorcyclists and other motor vehicle users resulting from head impacts. Each new motorcycle helmet must be certified as complying with the requirements of Standard No. 218. If the Shok-SpotR were sold as part of a motorcycle helmet, the helmet would be required to comply with all of the requirements of the standard with the Shok-SpotR attached.

We believe that a new helmet with the Shok-SpotR is unlikely to meet FMVSS No. 218. The standard at S5.5 prohibits rigid projections on the outside of a helmet shell except those "required for operation of essential accessories." In past interpretations, we stated that snaps for visors or face shields were considered required for operation of essential accessories while helmet lights were not. We cannot conclude that the Shok-SpotR is required for operation of essential accessories. Furthermore, S5.5 provides that the projection, if permitted, "shall not protrude more than 0.20 inch (5 mm [millimeters])."By our measurements, at the thickest point, the Shok-SpotR protrudes approximately 6 mm from the helmet shell. If a new motorcycle helmet to which Shok-SpotR is attached could not comply with FMVSS No. 218, a manufacturer of a new motorcycle helmet could not certify or sell the helmet.

FMVSS No. 218 applies to new motorcycle helmets and would not apply to the Shok-SpotR if it were sold in the "aftermarket" to helmet owners. However, while no FMVSS would apply in this situation, your product is considered to be an item of motor vehicle equipment. As a manufacturer of motor vehicle equipment, you are subject to the requirements of 49 U.S.C.  30118-30121 concerning the recall and remedy of products with safety-related defects. In the event that you or NHTSA determines that your product contains a safety-related defect, you would be responsible for notifying purchasers of the defective equipment and remedying the problem free of charge. Whether it is legal for a person to operate a motorcycle while wearing a helmet with the Shok-SpotR attached is not a Federal question, but a question to be answered under the laws of each jurisdiction in which Shok-SpotR is used.

There is another provision in our statute of which you should be aware. Manufacturers, distributors, dealers, and motor vehicle repair businesses are subject to 49 U.S.C.  30122, which states: "A manufacturer, distributor, dealer, or motor vehicle repair business may not knowingly make inoperative . . . any part of a device or element of design installed on or in a motor vehicle or motor vehicle equipment in compliance with an applicable motor vehicle safety standard . . . . " It appears unlikely from the nature of your product that it would be attached by commercial businesses instead of helmet owners. However, if your product were installed on helmets by a manufacturer, distributor, dealer or motor vehicle repair business, that could constitute a potential violation of the "make inoperative" provision of  30122.

Section 30122 does not apply to individual owners. Thus, individual owners may install any item of motor vehicle equipment regardless of its effect on compliance with Federal motor vehicle safety standards. However, it is NHTSAs policy to discourage motorcycle helmet users from modifying their helmets.

We are returning to you the sample of the Shok-SpotR you enclosed with your letter. If you have any further questions, please feel free to contact us at (202) 366-2992.

Sincerely,

Jacqueline Glassman
Chief Counsel

ref:218
d.11/16/04

ID: shulman.crs

Mr. Burt Shulman
15D Van Horn Circle
Beacon, NY 12508
Dear Mr. Shulman:

This is in response to a letter that you sent by fax on August 5, 1999, requesting an interpretation of NHTSA's vehicle importation regulations at 49 CFR Part 591. Section 591.5(d) permits the importation of a vehicle that does not conform to all applicable Federal motor vehicle safety, bumper, and theft prevention standards if the importer files a declaration at the time the vehicle is offered for importation that states that the importer is a nonresident of the United States, "is temporarily importing the vehicle for personal use for a period not to exceed one year," will not sell the vehicle during that time, and will export the vehicle not later than one year from the date of entry. You have asked whether the term "personal use," as found in this provision, would preclude anyone other than the nonresident importer from driving the vehicle while it is in the United States. You have more particularly asked whether the nonresident importer would have to be in the vehicle if it is driven by his consignee. In your fax, you have cited 19 CFR 12.73 and 148.45 in support of your belief that a consignee may drive a vehicle imported by a non-resident for "personal use." However, as you have noted, the regulations you cite are not those of the Department of Transportation, and we have no knowledge of how the Customs Service may have interpreted them.

The Department of Transportation's importation regulations and the statute that they implement (49 U.S.C. 30141 through 30147) distinguish between vehicles that are imported "for personal use," and those that are imported "for resale." The term "personal use," as found in these provisions, identifies the purpose for which the vehicle is imported. Sec. 591.5(d) was adopted in recognition of international treaties to which the United States is a party, which are intended to assure the free flow of international road traffic. The primary beneficiaries of these treaty provisions are citizens of other countries who tour the United States and who wish to import their personal vehicles to use during their visits. These provisions also benefit American citizens who are in the United States temporarily between work assignments outside the United States and bring their vehicle with them.

It is in the public interest that there be consistency among Federal regulations to the extent that this is possible. We have reviewed 19 CFR 148.45's provisions and believe that they are consistent with the purpose of Sec. 591.5(d). Sec. 148.45 exempts from duties automobiles imported by nonresidents "in connection with the arrival of the nonresident to be used in the United States only for the transportation of the nonresident, his family and guests, and such incidental carriage of articles as may be appropriate to his personal use of the conveyance." If we adopt a similar meaning for "personal use" for purposes of Sec. 591.5(d), we would say that "guests" means people unrelated to the nonresident's family who are being transported by the nonresident, and that "guests" does not refer to a "consignee" operating the vehicle.

We understand from discussions with our Office of Vehicle Safety Compliance (OVSC) that you have inquired about the various means by which you may import a 1999 Smart passenger car that does not conform to all applicable Federal motor vehicle safety standards. In the course of your discussions with OVSC, you have indicated that you may wish to take advantage of the exemption from the prohibition on importing such a vehicle that is provided by Sec. 591.5(d) by finding a nonresident to import the vehicle, but then using the vehicle yourself as its "consignee." If this is in fact your intent, we wish to advise you that we would not regard the importation of the Smart by the non-resident, or you as the "consignee," as being an importation for the importer's "personal use" within the meaning of Sec. 591.5(d) as interpreted in this letter.

If you have any further questions regarding this matter, please contact Coleman Sachs or Taylor Vinson of my staff at 202-366-5263.

Sincerely,
Frank Seales, Jr.
Chief Counsel
ref:591
d.9/2/99

ID: SILVERMA.GM

Howard A. Silverman, Esq.
General Motors Corporation
Mail Code 480-106-304
30500 Mound Rd.
Warren, Michigan 48090-9055

Dear Mr. Silverman:

This responds to your June 24, 1996, fax asking about a requirement in Standard 213, "Child Restraint Systems," for labeling "built-in" child seats, i.e., a seat designed to be "an integral part of and permanently installed in a motor vehicle" (S4, Standard 213).

Paragraph S5.5.4(b) and S5.5.5(f) of Standard 213 require built-in seats to be labeled with a statement about the manufacturer's recommendations for the mass, weight and height of children who can safely occupy the system. There are several statements set forth in S5.5.5(f), each with blanks for the manufacturer to insert the recommended values. To illustrate, the statement of S5.5.5(f)(2) is as follows:

This child restraint is designed for use only by children who weigh between ____ and ____ pounds (insert appropriate metric values; use of word "mass" is optional) and whose height is (insert appropriate values in English and metric units) or less and who are capable of sitting upright alone.

(Italics in text.)

In the statements of S5.5.5(f), the English unit (weight) unit is specified first, and the metric unit (mass), second. You ask whether this order may be reversed. You explain that Canada requires the metric measurements to be stated first. You indicate that if the National Highway Traffic Safety Administration (NHTSA) were to permit the metric unit to be first, GM could use "a common label on built-in child restraints installed on vehicles destined for the United States and Canada."

Our answer is that you may specify the metric unit first. Standard 213 does not specify the sequence of the required information. Further, prior to the requirement that metric values be included on the label, a manufacturer asked NHTSA whether it could voluntarily provide metric units on the label in addition to the English units. NHTSA stated that the metric units may be provided, "[a]s long as the information is presented in a manner that is not likely to cause confusion . . . ." (April 17, 1989 letter to Robert Craig, copy enclosed.) The agency did not indicate that providing the metric unit before the English unit would cause confusion, nor do we believe it likely that such labeling would.

We emphasize, however, that regardless of which unit is provided first, the agency will refer only to the metric value to determine which dummy will be used to test a child restraint. This decision was thoroughly discussed in the final rule adopting the requirement that child seat labels provide both metric and English units. 60 FR 35126, 35131; July 6, 1995.

If you have further questions, please contact Deirdre Fujita of my staff at (202) 366-2992.

Sincerely,

Samuel J. Dubbin
Chief Counsel

ref:213
d:7/24/96

ID: Silverman1

Howard A. Silverman, Esq.
General Motors Corporation
Legal Staff
Mail Code: 482-C24-D24
300 GM Renaissance Center
Detroit, MI 48265-3000




Dear Mr. Silverman:

This responds to your letter of January 7, 2005, asking us to reconsider our February 4, 2003 letter of interpretation to Ms. Erika Z. Jones regarding the definition of the term "Model Year" in 49 C.F.R. Part 565, Vehicle Identification Number Requirements (VIN). In our letter to Ms. Jones, we addressed whether 49 C.F.R. 565.6(d)(1) permits a manufacturer to designate vehicles as belonging to a single Model Year, where the production period for such vehicles falls within three different calendar years, but runs for less than 24 months in total. In our letter, we said the answer was no. We interpreted "Model Year," as defined in 49 C.F.R. 565.3(j), as a production period of less than two calendar years (i.e. , a time period limited by year designation rather than a maximum number of days). For the reasons that follow, we have decided to rescind our earlier letter and instead to interpret "Model Year" as a period not to exceed 24 months.

In your letter, you explained how our February 2003 interpretation of the term "Model Year" for VIN recordation purposes was contrary to actual, long-standing industry practices, and discussed the substantive impacts of the interpretation. According to your letter, it had been the industrys understanding that the National Highway Traffic Safety Administration has granted vehicle manufacturers flexibility in determining when to start production for a given Model Year, provided that such period may not exceed 24 months, and manufacturers scheduled their production in a manner consistent with this timeframe.

As discussed in our earlier letter, the VIN requirements were originally contained in Federal Motor Vehicle Safety Standard (FMVSS) No. 115, until the agency promulgated a final rule shifting such requirements to a new regulatory section at Part 565 (48 FR 22567, May 19, 1983). The exact definition of "Model Year" did change slightly in its migration from FMVSS No. 115 to Part 565, adding the word "calendar" to the requirement that the actual period of production be "less than two calendar years. "However, the final rule stated that "[t]he basic substantive requirements of Standard 115 are unchanged by this action". 48 FR 22567, 22567. It also stated, "The new Part 565 would not have any requirements not in FMVSS 115 prior to today". Id. at 22569. That is, it was not the agencys intention to change the substantive requirements of the VIN regulation or to alter existing industry practices.

When drafting the letter to Ms. Jones, we did not fully appreciate the impacts that our interpretation would have on vehicle manufacturers production processes. These impacts suggest that our February 2003 interpretation would result in substantive changes to the VIN requirements, the type of changes that, according to the 1983 notice, were not intended to result from the addition of the word "calendar" to the regulation. Substantive changes to our regulations are conducted through the rulemaking process, with an opportunity for public notice and comments.

Accordingly, we have decided to rescind our earlier interpretation of the definition of "Model Year" contained within Section 565.3(j), and instead, we will interpret that term as any 24-month period from the starting point determined by the manufacturer, thereby permitting a full two-year period for all such manufacturer designations. To do otherwise would change the substance of the VIN requirement and could result in widely disparate treatment of different vehicles in terms of VIN requirements related to Model Year designation, depending upon when the manufacturer begins production, and would unnecessarily restrict manufacturers discretion in setting their own production schedules.

If you have any 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

cc: Erika Z. Jones, Esq.
ref:565
d.2/15/05

ID: speedrestrictedtires

Stephen M. Padula
Michelin North America
One Parkway South
P.O. Box 19001
Greenville, SC 29602

Dear Mr. Padula:

This responds to your letter asking whether a manufacturer may make certain statements about using 315/80R22.5 LR L truck tires marked with a 55 miles per hour (mph ) speed restriction on the sidewall ("speed-restricted tires") at speeds above 55 mph. You note that a competitor has made these or similar statements in technical information about the tires, and you want to know whether the statements are permitted. Our answer is the statements are not permitted for speed-restricted tires.

You ask about two statements in the manufacturers technical information about the tire. The first concerns information stating that the tire bearing a maximum speed marking of 55 mph, rated at 10,000 pounds/tire at a cold pressure of 130 psi "may not be operated at a sustained speed in excess of 55 mph. Sustained speed is defined as continuous operation at that speed for over one hour. The absolute maximum speed for tires with 55 mph speed restrictions is 65 mph." The second relates to statements that the "tires are speed restricted as listed below [55 mph]. This is due to very high loads associated with these Load Range L tires. When these tires are operated at or below the Load Range "J" (18 PR) loads, they can be operated at 65 mph and the listed speed restriction does not apply."

Standard No. 119, New Pneumatic Tires for Motor Vehicle Other Than Passenger Cars (49 CFR 571.119), permits speed-restricted tires, but only under certain conditions. Under S6.5(e) of the standard, the speed restriction must be marked on the tire sidewall. In describing the information that must be marked, S6.5(e) states: "The speed restriction of the tire, if 55 mi/h or less, shown as follows: Max speed ____ mph."^[1] In other words, the speed restriction must not exceed 55 mph. Speed-restricted tires are generally excluded from the high speed performance requirements of S6.3 of Standard No. 119. In addition, they are subject to a less stringent endurance test schedule (a lower test speed and fewer total revolutions of the test wheel), as shown in Table III of the standard. Since the requirements for speed-restricted tires reflect their anticipated speed-restricted use, it is important that there is an appropriate safeguard ensuring that the tires will not be used at higher speeds. Labeling the tires with a maximum 55 mph speed restriction helps to ensure that the tires will not be used under conditions exceeding the speed restriction marked on the tires.

The first group of statements you describe instruct that the tire may be operated at speeds up to 65 mph for periods not to exceed one hour. We believe that the statements about using the tires at speeds up to 65 mph conflicts with the 55 mph speed restriction labeled on the tire. If the statements are provided, we will not consider the tire to be speed-restricted since it is recommended for use above 55 mph. Thus, the tire would have to meet the requirements that apply to a non-speed-restricted tire.

The second group of statements includes an instruction that, "When these tires are operated at or below the Load Range J (18 PR) loads, they can be operated at 65 mph and the listed speed restriction does not apply." We would not consider the tire to be speed-restricted when the manufacturer has provided that statement. The tire would be tested to the requirements for non-speed-restricted tires under the appropriate load.

I hope this information is helpful. If you have any questions or need additional information, feel free to contact Nancy Bell of my staff at (202) 366-2992.

ref:119

d.8/6/02

^[1] Effective May 27, 2003, this section will read: "The speed restriction of the tire, if 88 km/h (55 mph) or less, shown as follows: Max speed __ km/h (___mph)."

ID: Spelcast5635

Mr. Derek Fletcher
Snug Seat
12801 E. Independence Blvd.
PO Box 1739
Matthews, NC 28106

Dear Mr. Fletcher:

This responds to your e-mail letter and phone conversation with Ms. Deirdre Fujita of my staff, in which you requested a temporary exemption from the child restraint anchorage system requirements of Federal Motor Vehicle Safety Standard (FMVSS) No. 213, Child restraint systems. The agency does not have authority to grant exemptions to equipment manufacturers. However, in this limited instance, we will exercise our discretion not to institute enforcement proceedings with respect to the Spelcast special needs child restraint system (CRS).

In your letter, you explained that the Spelcast is specifically designed to safely transport children in hip spica casts or with other lower extremity casting. You stated that typically, a child only uses the Spelcast for a period of 6 to 8 weeks while in a cast. According to your letter, hospitals temporarily loan the Spelcast to individuals with children in casts. You describe the loans as being administered by trained hospital staff, who provide instruction on the restraints installation and use.

Under FMVSS No. 213, all CRSs (except harnesses, car beds, and belt-positioning seats) manufactured on or after September 1, 2002, must be equipped with a means of attaching to a vehicles child restraint anchorage system [1] . This requirement, along with vehicle anchorage requirements, improves the compatibility of vehicle seats and CRSs and provides a universal system for installing CRSs. Increasing the ease of installation reduces the instances of incorrectly installed restraints. Improved compatibility and proper installation increase the effectiveness of a CRS in preventing death or injury.

You indicated that the Spelcast is currently not offered for sale because it does not meet the LATCH requirements of FMVSS No. 213. However, you stated that when the Spelcast was sold, it was primarily sold to hospitals and child passenger safety agencies and was not available through any retail outlet. You stated that there are currently no other CRSs available that accommodate the needs of children in casts and that the only alternative is ambulance transport.

As a CRS, the Spelcast must meet all applicable provisions of FMVSS No. 213, including those for the child restraint anchorage system attachments. When a Federal motor vehicle safety standard contains a requirement applicable to a product, Federal law prohibits any person from manufacturing, selling, or importing a new product that does not comply with that requirement. See, 49 U.S.C. 30112. The Federal law governing our agency does not explicitly provide for exempting manufacturers of equipment items, such as CRSs, from the application of the standards.

However, we believe that flexibility is called for to accommodate the special medical needs of the individuals who rely on your product. The Spelcast provides a transportation option for a small population that has very limited alternatives. One of the objectives of the LATCH requirements is to minimize improper installation of CRSs. Because of the distribution methods for the Spelcast, users receive personal instruction from qualified staff. This instruction, combined with the limited and controlled distribution of the child restraint, reduces the chance that a Spelcast will be improperly installed. However, to continue to ensure that only properly instructed individuals would use these seats and to prevent the seats general use, a system is needed to ensure that a loaned seat is returned to the hospital or agency once a child can be accommodated by a CRS certified to all the requirements of FMVSS No. 213.

In your phone conversation, you explained that the seat is being redesigned in cooperation with another CRS manufacturer to comply with the LATCH requirements, but that the availability of the new seat is still about 8 months away. Based on this and other information mentioned in this letter, we will exercise our discretion not to enforce the child restraint anchorage system requirements of FMVSS No. 213 against the Spelcast for a period of 8 months from the date of this letter. This will provide an alternative to ambulance transport until the redesigned seat is available. Note that this determination applies only to the child restraint anchorage provisions of FMVSS No. 213 and that the Spelcast must still comply with all other relevant portions of the standard.

I hope that this letter resolves your problem. If you have any further questions, please contact Mr. Chris Calamita of my staff at (202) 366-2992.

Sincerely,

Jacqueline Glassman
Chief Counsel

ref:213
d.10/1/03





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[1] This is commonly referred to as the LATCH (lower anchors and tether for children) requirement.

ID: sponorship_rbm

Erika Z. Jones, Esq.
Mayer, Brown, Rowe & Maw
1909 K Street, N.W.
Washington, DC 20006-1101

Dear Ms. Jones:

This letter responds to a recent request you made regarding the National Highway Traffic Safety Administration's (NHTSA) interpretation of the term "motor vehicle manufacturer" as it relates to compliance with the phase-in requirements of various Federal motor vehicle safety standards (FMVSS). Your immediate concern is whether a vehicle may be deemed to be manufactured by more than one manufacturer if there is an agreement between two separate companies under which both companies provide financial and engineering resources for the development of a vehicle model that will be assembled by one company for the exclusive marketing by the other. If the answer to that question is yes, you ask whether either company could take credit for those vehicles for the purpose of complying with the phase-in requirements of a safety standard, as long as they filed a contract with NHTSA specifying who was taking such credit. I am pleased to provide an explanation of NHTSA's position on these issues, which we refer to as "sponsorship."

NHTSA first articulated its position on sponsorship in 1985 when it proposed to phase-in the new passive restraint requirements of FMVSS No. 208, Occupant crash protection. See 50 Fed. Reg. 14589, 14596 (April 12, 1985). In that rulemaking, NHTSA allowed consensual attribution of a vehicle when there was more than one manufacturer of the vehicle. Specifically, NHTSA developed a regimen under which a passenger car produced by more than one manufacturer would be attributed for phase-in purposes to a single manufacturer, as specified by an express written contract provided to NHTSA. In the absence of a written contract, the attribution would go to the importer, in the case of an imported vehicle, or to the manufacturer that marketed the vehicle, in the case of a vehicle manufactured in the United States. See 49 CFR 571.208, S4.1.3.5. The same regimen has been adopted for subsequent phase-ins of other requirements of FMVSS No. 208 (S4.1.5.2, S4.2.5.6, S4.2.6.1.2, S14.3.1, and S14.3.3.1), as well as those of other safety standards (FMVSS No. 201, Occupant protection in interior impact, at S6.1.6; FMVSS No. 214, Side impact protection, at S8.4; and FMVSS No. 225, Child restraint anchorage systems, at S14.2).

The term "manufacturer" is defined by statute as "a person manufacturing or assembling motor vehicles or motor vehicle equipment; or importing motor vehicles or motor vehicle equipment for resale." 49 U.S.C. 30102. The NHTSA regulations governing vehicle certification of a completed vehicle require the assembler of the vehicle to certify the vehicle as the manufacturer. Three exceptions apply to the general requirement: first, a non-assembling manufacturer may certify compliance when it controls the corporation assembling the vehicle and agrees to assume all legal responsibilities associated with certification; second, a manufacturer that fabricates and sends a vehicle in an unassembled form such that it can be assembled without any special machinery or tools may name itself as the vehicle manufacturer; and third, a trailer manufacturer may certify compliance for a trailer that it did not manufacture, but for which it accepts legal responsibility associated with certification. See 49 CFR 567.4(g). The manufacturer identified on the certification label generally bears full legal responsibility for any notifications and remedies resulting from a determination of a noncompliance with a FMVSS or a safety-related defect. See 49 CFR 573.3.

In the 1985 FMVSS No. 208 NPRM, the agency acknowledged that there were instances in which a vehicle could arguably have more than one manufacturer. One example of this situation could be when there was an existing parent/subsidiary relationship. However, there could also be instances where the relationship between the two possible manufacturers was not based on control of the company, but rather on control of the production of a specific vehicle model. We determined that, under certain circumstances, the definition of manufacturer in 49 U.S.C. 30102 was sufficiently broad to include this scenario. The example we gave in explaining our position was a company, which we refer to as a "sponsor," that contracts with another manufacturer to produce a design exclusively for the sponsor. However, the agency went on to state, "the mere purchase of vehicles for resale by a company which is also a manufacturer of motor vehicles does not make the purchaser the manufacturer of those vehicles." See 50 Fed. Reg. 14589, 14596.

To date, NHTSA has examined the sponsorship question, based on particular sets of circumstances, only four times. In the first instance, the agency evaluated the relationship between General Motors and Lotus Cars Ltd. See August 15, 1987, letter from NHTSA to General Motors. We determined that since GM sponsored the importation, distribution, and marketing of the Lotus vehicles in the United States, it could be considered the manufacturer of the vehicles for the FMVSS No. 208 phase-in requirements. In making its decision, NHTSA noted that Lotus was a wholly-owned subsidiary of GM and the vehicles were marketed in the United States by another wholly-owned subsidiary of GM, providing sufficient indicia of GM's active role in bringing the vehicles to market.

Two years later, NHTSA concluded that a contractual relationship whereby one manufacturer contracts with another to assemble vehicles, without more, was insufficient to establish a sponsorship relationship. The agency noted that a contract to assemble may be nothing more than the purchase of vehicles for resale. Without more information as to the details of the contract, NHTSA was unable to determine whether the non-assembly manufacturer exercised sufficient control over the production of the vehicle to be considered a sponsor for phase-in purposes. See September 7, 1989, letter from NHTSA to LAFORZA Automobiles, Inc.

In 1991, NHTSA determined that a joint venture agreement, under which one party provides design and development support, as well as major components, and the other party assembles the vehicle, was sufficient to allow the non-assembler to be considered as the manufacturer of the vehicle and to attribute the vehicle to its fleet for phase-in purposes. See October 28, 1991, letter from NHTSA to Nissan Research & Development, Inc.

Finally, we recently clarified our position that vehicles of related manufacturers may be grouped together for the purposes of meeting safety standard phase-in requirements, and expanded it beyond the findings of control described in the GM/Lotus letter. In a letter to the Alliance of Automobile Manufacturers, we noted that the manufacturer attribution provisions needed to be clear and easily applied. We stated that we believed there was sufficient interaction among related manufacturers, and direct involvement by parent corporations in the actions of their subsidiaries, that their fleets could be grouped together or treated as the vehicles of separate manufacturers, at the manufacturers' option. We also stated that if the fleets of motor vehicle manufacturers are considered to be within the same "control" relationship for the purposes of the Corporate Average Fuel Economy (CAFE) statute, 49 U.S.C. Chapter 329, their vehicles could be grouped together or treated as the vehicles of separate manufacturers for phase-in purposes, again at the manufacturers' option. See October 24, 2002, letter from NHTSA to the Alliance of Automobile Manufacturers.

Thus, under existing interpretations, sponsorship could be found with respect to a vehicle model in three instances: first, if the vehicle were designed from the beginning exclusively for another manufacturer; second, if the fleets of the two companies are combined under the CAFE statute during the model year at issue; and third, if the vehicle were designed and produced pursuant to a joint venture agreement that reflected joint participation. Sponsorship would not be found, however, if a contract merely directed one company to assemble an existing model for another manufacturer without other evidence of the non-assembling company's control over the design and production process.

I now turn to the fact scenario presently before the agency. In your letter, you state that Company A has agreed to supply Company B with a vehicle model developed, in part, pursuant to an engineering agreement between the two companies. The new model is based in large part on an existing model that was designed and engineered by Company A. Company A has also marketed the existing model in the United States. However, a subsidiary or affiliate of Company B will have sole distribution and marketing rights for the new model.

Under the engineering agreement, Company B has provided exterior and interior specifications and requirements, prepared and provided detailed designs of modified interior and exterior parts, and assigned employees to participate actively in the design and development process. Additionally, Company B has committed to pay Company A a net total of $30 million to cover engineering and tooling costs for the vehicle.

I have determined that this arrangement is sufficient to establish a sponsorship relationship between Company A and Company B with respect to the vehicle, regardless of whether such a relationship could be found generally, as was the case with GM and Lotus or with fleets of vehicles that are grouped together under the CAFE statute. I have also determined that it is not necessary for Company B to have been actively involved in the initial development of the vehicle, as was the case in the Nissan joint venture. Rather, my decision is based on the presence of three separate factors: the would-be sponsor's commitment of substantial design and engineering resources, the significant financial contribution by Company B to the development of the vehicle, and Company B's exclusive marketing rights to the vehicle. I note that the absence of any one of these factors, particularly the commitment of design and engineering resources, could create a situation more akin to the situation with LAFORZA, where NHTSA expressed concern that the contractual relationship may not have amounted to more than a mere purchase for resale.

Please note that in order for Company B to take credit for the vehicles in question during the phase-in, the companies must submit a written contract to that effect with NHTSA. Moreover, we note that the entire production for a given production year (i.e., from September 1 of one year through August 31 of the next year) must be attributed to one manufacturer. We would not allow a company to "sponsor" only a portion of a given year's production.

This approach to sponsorship for phase-in purposes is somewhat different from NHTSA's recently articulated position on the respective responsibilities of manufacturers under the early warning reporting rule. 67 Fed. Reg. 45833 (July 10, 2002). In that rule, we specifically addressed the obligations placed on manufacturers involved in joint ventures and production agreements. We noted that all manufacturers that are party to such ventures or agreements could assume responsibility for reporting consumer complaint and other relevant information to NHTSA. Under the early warning reporting rule, we described a production agreement as one in which one manufacturer agrees to produce vehicles for another under the second manufacturer's brand name. We did not premise our statement about the assumption of responsibility on whether the owner of the vehicle brand name had any control over the design or production of the vehicle, or whether the vehicle was designed exclusively for marketing by the brand name owner. We took this approach in the early warning reporting context because we believe the critical element is which company a consumer is more likely to notify in the event of a complaint or problem. We believe consumers would be most likely to notify the manufacturer whose name appears on the vehicle rather than the manufacturer whose name appears on the certification label. To that end, we also added a definition of "brand name owner" to mean "a person that markets a motor vehicle or motor vehicle equipment under its own trade name whether or not it is the fabricator or importer of the vehicle." This definition alone would be insufficient to establish sponsorship under the phase-in requirements of the various safety standards, because the mere branding of a vehicle does not demonstrate sufficient control or investment in the design and production of the vehicle.

I hope that this information is helpful. Should you have any further questions on this matter, please feel free to contact me or Rebecca MacPherson of my staff at the address given above or at (202) 366-2992.

Sincerely,

Jacqueline Glassman
Chief Counsel

ref:VSA
d.12/10/02

ID: static1

Milford R. Bennett, Director
North American Operations Safety
Affairs and Regulations
General Motors Corporation
30200 Mound Road
Warren, Michigan 48090-9010

Dear Mr. Bennett:

This responds to General Motors' (GM's) inquiry, raised in a June 16, 1995 meeting with the agency, regarding the test procedures in Federal Motor Vehicle Safety Standard No. 114 for determining whether a vehicle is in the "park" position. Under those procedures, a vehicle is deemed to be in park if it ceases rolling within 150 mm. You were concerned that different methods of measuring this distance could result in some vehicles not complying with the requirement that the vehicle roll less than 150 mm.

The short answer to your question is that the test procedure is a "static" measurement procedure. In other words, the agency will not measure the distance that a vehicle has rolled until after the vehicle has completely ceased moving.

This agency recently amended Standard No. 114, adding test procedures to determine whether the key can be removed when the transmission is in positions other than the "park" position and that the transmission remains locked in "park" after key removal. (60 FR 30006; June 7, 1995) NHTSA initiated that action in response to a petition from the automotive industry alleging that such a procedure was needed to make the standard objective.

Section S4.2.1(a)(3) of the amended standard specifies that "[e]ach vehicle shall not move more than 150 mm on a 10 percent grade when the transmission or transmission shift lever is locked in "park." To demonstrate that the vehicle is in "park" prior to attempting to remove the key, the test procedures in S5.2(e) and S5.3(b) both state:

Drive the vehicle forward up a 10 percent grade and stop it with the service brakes. Apply the parking brake (if present). Move the shift mechanism to the "park" position. Apply the service brakes. Release the parking brake. Release the service brakes. . . . Verify that vehicle movement was less than or equal to 150 mm after release of the service brakes.

In the June 16 meeting with the agency, GM stated that vehicle movement could be measured in two different ways: dynamic or static. GM inquired as to which method NHTSA interpreted the standard as specifying, because the results using these two methods would be different. The "dynamic" method of measuring vehicle movement was described by GM as measuring the maximum play-out of a spool of wire attached to the front bumper after release of the service brakes. The "static" method would measure vehicle movement from a reference point on the wheels after the vehicle has come to a complete stop.

Under the dynamic method, a portion of the measured play-out would be due to the "rocking" motion of the vehicle's chassis on its suspension when the transmission engaged. The driveline components would also contribute some movement by temporarily storing some of the kinetic energy of the moving vehicle by flexing and twisting. However, both of these contributions to total rearward movement are temporary, disappearing after the vehicle comes to rest, as in the static measuring method. GM presented test data for certain vehicles and theoretical worst-case calculations of static roll distance on non-production hypothetical vehicles and one test vehicle. The test data showed that dynamic measuring produces larger measurements of roll than does static measuring.

NHTSA interprets the limitation on vehicle movement specified in S4.2.1(a)(3) as referring to static movement. The agency did not contemplate using the dynamic method. The agency intends to measure only permanent components of total vehicle movement, using the "static" method. When conducting compliance testing, NHTSA will measure vehicle movement from a reference point such as the wheel centerline position. The starting time for the measurement will be at the moment before the service brakes are released. The ending time of the measurement will be when the vehicle has completely ceased moving, bouncing, and rocking (i.e., until the vehicle is again "static").

This agency believes that its confirmation that the static test method is the proper method should relieve any realistic concerns regarding compliance of the 1996 model year vehicles GM tested, and probably of any future vehicles as well. The actual tests GM conducted in preparation for the meeting with NHTSA all showed static roll distances well within the requirements of Standard No. 114.

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

Sincerely,

John Womack Acting Chief Counsel ref:114 d:7/3/95 The parenthetical reference occurs only in S5.3(b). S5.2(e) and S5.3(b) refer to vehicles manufactured at different times.