ID: TOYOTA2002.drn

Chris Tinto, Director
Toyota Motor North America, Inc.
Washington Office
1850 M Street, NW
Suite 600
Washington, DC 20036

Dear Mr. Tinto:

This responds to your request for an interpretation of Federal Motor Vehicle Safety Standard No. 101, Controls and Displays, with respect to a push button "Power" control that would activate a hybrid electric/gasoline vehicle. As explained below, we agree that the standard's requirements for labeling "Engine Start" and "Engine Stop" controls would not apply to your hybrid vehicles "Power" button, and that identification of the button would be at the option of the manufacturer.

In your letter, you describe a planned Toyota Hybrid System (THS) vehicle that would provide motive power by using both an electric motor and a gasoline engine. This vehicle would be turned on by the driver inserting the key and depressing a "Power" button. "Turning on" this vehicle would mean that the vehicle was activated to be propelled by the electric motor, not that the engine was actuated. After such activation of the vehicle, the engine would automatically start when the ECU determines that the vehicle needs extra power. Similarly, the engine would automatically stop when the ECU determines that the vehicle does not need the engine to provide additional power.

You noted in your letter that Toyota is aware that Standard No. 101 specifies that if a vehicle has an "engine start" and/or "engine stop" control that is separate from the key locking system, the control(s) must be labeled "Engine Start" and "Engine Stop." You stated that Toyota believes these requirements would not apply to this vehicle's "Power" button, because the engine is neither started nor stopped by this button. You also stated that Toyota plans to use the word "Power" along with the ISO power symbol (specified in ISO 2575:2000(E)) to label the button.

We agree that since the button at issue on Toyota's THS vehicle would neither start nor stop the engine, it is not covered by Standard No. 101's requirements for engine start and engine stop controls. Since the standard does not otherwise specify requirements for this control, its identification is at the option of the vehicle manufacturer. Toyota is therefore free to identify it by means of the word "power" and the ISO power symbol.

I note that it is possible that the agency could in the future specify labeling requirements for this type of control. As noted in our most recent semi-annual agenda of regulatory actions, published in the December 9, 2002 Federal Register, we are considering various amendments to Standard No. 101. If we did propose to specify identification requirements for the type of control at issue in your letter, Toyota would, of course, have the opportunity to submit comments.

If you have any further questions, please feel free to contact Dorothy Nakama of my staff at (202) 366-2992.

Sincerely,

Jacqueline Glassman
Chief Counsel

ref:101
d.1/30/03

ID: Toyota_knee_bolster

Chris Tinto, Director, Technical & Regulatory Affairs
Toyota Motor North America, Inc.
1850 M Street, NW Suite 600
Washington, DC 20036

Dear Mr. Tinto:

This responds to your request for an interpretation regarding the definition of "air bag system" as it pertains to test procedures specified in our occupant crash protection standard. Your letter asked if an inflatable knee bolster would be considered part of the "driver frontal air bag system" under the procedure for low risk deployment (LRD) tests of the driver air bag. As explained below, for purposes of LRD tests, the driver frontal air bag system refers to the steering wheel hub-mounted inflatable restraint and does not include an inflatable knee bolster.

On May 12, 2000, the National Highway Traffic Safety Administration (NHTSA) amended Federal Motor Vehicle Safety Standard (FMVSS) No. 208 to minimize the risk of injury from deploying air bags for small adults and children (65 Federal Register 30680; Advanced air bag rule). The Advanced Air Bag Rule adopted a LRD test to address the risk air bags pose to out-of-position occupants, particularly those of small stature. The test is performed by activating a frontal air bag system with a test dummy in "worst case" positions: placing the dummys chin on the module and for the 5^th percentile adult female test dummy, also placing the dummy's chin on the steering wheel.

In your letter you stated that Toyota has equipped some of its vehicles with a knee air bag (knee bolster), which deploys in a frontal crash along with the driver air bag located in the steering wheel hub. You further stated that Toyota considers a knee bolster part of the frontal air bag system and therefore, it should be deployed during a LRD test. Your letter also noted that both the knee bolster and the air bag located in the steering wheel hub deploy in the rigid barrier test described in S22.5 of FMVSS No. 208, which determines the deployment stage for the LRD procedure in S26.

In a November 19, 2003, final rule, the agency specifically addressed which air bag system components are fired in a LRD test. The agency stated that:

While neither "air bag [system]" or "inflatable restraint [system]" is defined in FMVSS No. 208 or any other place in 49 CFR Part 571, the intent of the term "air bag" is to describe the components that make up the passenger- side dash-mounted and driver-side steering wheel hub-mounted, inflatable restraints used for occupant protection in a frontal impact. This does not refer to any other pyrotechnic system such as a belt pretensioner or inflatable knee bolster (68 Federal Register 65179, 65186; emphasis added).

We further stated that the agency has no data on the effect deploying devices other than the frontal air bag will have on the LRD test procedure. We also do not have any data on the performance of any of these other pyrotechnic devices for out-of-position occupants in the field. Specifically, we are concerned that inflatable knee bolsters could negatively impact the repeatability of the LRD tests, even though they would inflate in a real crash. Therefore, when the agency performs a LRD test on a vehicle equipped with inflatable knee bolsters, the knee bolsters are not inflated.

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

Sincerely,

Jacqueline Glassman
Chief Counsel

ref:208
d.7/19/04

ID: ToyotaLSA_cmcv2

Chris Tinto, Director, Technical & Regulatory Affairs
Toyota Motor North America, Inc.
1850 M Street, NW Suite 600
Washington, DC 20036

Dear Mr. Tinto:

This responds to your request for an interpretation regarding the proper positioning of a leg support system during a crash test specified in Federal Motor Vehicle Safety Standard (FMVSS) No. 208, Occupant crash protection. As explained below, Toyota is correct in its understanding that the leg support system described in your letter is to be adjusted as an "other seat adjustment" under FMVSS No. 208.

On May 12, 2000, the National Highway Traffic Safety Administration (NHTSA) published a final rule in the Federal Register requiring advanced air bags in all passenger cars, multi-purpose vehicles, light trucks and buses with a gross vehicle weight rating (GVWR) of 8,500 lb or less (65 FR 30680; Advanced air bag rule). That final rule established new, advanced air bag performance requirements to minimize the risk of injury to children, as well as new requirements to enhance the protection of small and mid-size adults. The advanced air bag rule established a rigid barrier dynamic crash test using a 5^th percentile adult female test dummy. Since the advanced air bag rule was established, the agency has amended FMVSS No. 208 on several occasions, in part to provide clearer and more objective test procedures for use of the 5^th percentile adult female in testing.

In your letter, you explained that the Toyota Motor Corporation (Toyota) has developed a "leg support adjustment system (LSA)," which extends the forward edge of a seat cushion to provide additional support to the thighs of taller occupants. As further described in a conversation between Mr. Chris Calamita of my staff and Ms. Christina Mullen of Toyota, the system extends the front trim of the seat by mechanical means. As additionally explained in your letter, the LSA is engaged by an occupant through an adjustment switch on the side of a seat. Your letter then asked if the LSA would be adjusted according to S16.2.10.2, Other seat adjustments, under the FMVSS No. 208 test procedure for the rigid barrier 5^th percentile female crash test.

S16.2.10 of FMVSS No. 208 provides the specifications for the driver and passenger seat set-up conditions for the rigid barrier 5^th percentile female crash test. S16.2.10.1, Lumbar support adjustment, specifies the proper position for lumbar support adjustments. S16.2.10.2 specifies the proper positioning of seat adjustments that provide additional support, other than a lumbar support adjustment. As originally adopted in the advanced air bag rule, this provision specifically referred to seat cushion and seat back side bolster adjustments.

In response to the advanced air bag rule, a manufacturer asked what would be required for vehicles with seat cushions that could be lengthened or shortened. In response, the agency amended the seat positioning procedure to specify the position for adjustable seat parts that provide the occupant additional support (66 FR 65376; December 18, 2001). The December 2001 final rule amended S16.2.10.2 to read:

Other seat adjustments. Position any adjustable parts of the seat that provide additional support so that they are in the lowest or most open adjustment position.

The LSA, as described in your letter, performs the same type of function as the seat cushion which gave rise to the amended S16.2.10.2. Therefore, that section specifies the position of the LSA.

Based on the diagrams you provided, it appears that the forwardmost edge of the seat cushion is higher in relation to the floor pan when the LSA is extended as opposed to when the LSA is fully retracted. S16.2.10.2 specifies that a vehicle equipped with an LSA would be tested with the LSA in the lowest position. Therefore, if we were to test a vehicle equipped with a LSA, we would place the LSA in its shortest and lowest position.

I hope you find this helpful. If you have any additional questions please contact Mr. Calamita at (202) 366-2992.

Sincerely,

Jacqueline Glassman
Chief Counsel

ref:208
d.8/27/04

ID: tractor23131

Mr. Mark Ireland
Senior Engineer - Engineering Standards and Legislation
JCB Research
Rocester Saffordshire
England ST 1 4 5JP





Dear Mr. Ireland:

This responds to your letter received on May 18, 2001, asking for information about the application of glazing marking requirements to a range of construction, industrial and agricultural equipment. More specifically, you ask whether you should use "uniform/zone Toughened or Laminated glazing in the windshield and other cab areas in your machines and, also, whether glazing requirements change with the design speed of the machine." The following generally discusses:1) the applicability of our laws to your machines, and 2) glazing requirements based on the facts set forth in your letter. However, without specific information on a particular machine, we cannot provide an opinion as to whether our glazing standard is applicable to a particular machine as a "motor vehicle."

Motor Vehicle

By way of background information, the National Highway Traffic Administration (NHTSA) issues and enforces the Federal motor vehicle safety standards (FMVSS). NHTSA's statute defines the term "motor vehicle" as follows:

[A] vehicle driven or drawn by mechanical power and manufactured primarily for use on the public streets, roads and highways, but does not include a vehicle operated only on a rail line. 49 USC' 30102(a)(6).

Whether NHTSA considers various pieces of construction, industrial or agricultural equipment to be motor vehicles depends on their use. In the past, we have concluded that this statutory definition does not encompass mobile construction equipment, such as cranes and scrapers, which use the highway only to move between job sites and which typically spend extended periods of time at a single job site. In such cases, the on-road use of the equipment is merely incidental and is not the primary purpose for which they were manufactured. Other construction vehicles, such as dump trucks, frequently use the highway going to and from job

sites, and stay at a job site for only a limited time. Such vehicles are considered motor vehicles, since the on-highway use is more than "incidental."

Based on the information provided in your letter, we do not have sufficient information about the use of the equipment to determine whether they are motor vehicles. If, however, certain equipment is used frequently on the highways, they would be considered motor vehicles and would be required to comply with all applicable FMVSSs, including that pertaining to glazing as discussed below. If you write us again with more information about a particular vehicle, we would be happy to provide an interpretation as to whether it is a motor vehicle.

FMVSS No. 205

FMVSS No. 205, Glazing Materials (49 CFR 571.205), establishes performance, location, certification, and marking requirements for all glazing installed in motor vehicles. The standard incorporates by reference the requirements of Standard ANS Z26, "Safety Code for Safety Glazing Materials for Glazing Motor Vehicles Operating on Land Highways," of the American National Standard Institute (Standard ANS Z26). Standard ANS Z26 specifies performance requirements for various types of glazing (called "items") and specifies the locations in vehicles in which each item of glazing may be used.

Standard ANS Z26 requires that glazing for windshields must pass a specified group of test requirements. ANS Z26 specifies that glazing materials that comply with these test requirements for windshields must be marked with AS1. To date, the only glazing materials that have been marked with AS1 have been laminated safety glass. Unless the non-laminated glazing material cited in your letter can meet the requirements for AS1 glazing and are marked AS1, they do not comply with the requirements for windshields specified in Standard ANS Z26 or FMVSS No. 205. Finally, you should also be aware that FMVSS No. 205 permits glass-plastic glazing.

For your further information, I am enclosing a fact sheet we prepared entitled Information for New Manufacturers of Motor Vehicles and Motor Vehicle Equipment, and Where to Obtain NHTSA's Safety Standards and Regulations.

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.

Sincerely,

John Womack
Acting Chief Counsel

Enclosure
ref:205
d.6/26/01

ID: TransportCanada_000262

Mr. Wayne Duff
Importation and Audit Inspection
Transport Canada
ASFABA
Place de Ville, 300 Sparks St.
Ottawa, Ontario K1A 0N5
Canada

Dear Mr. Duff:

This is in response to your e-mail inquiry, in which you ask several questions concerning the application of vehicle identification numbers (VINs) and World Manufacturer Identifiers (WMIs) to imported "scooters" and off-road vehicles. Our response to each of your questions is set forth below.

As you are aware, the National Highway Traffic Safety Administration (NHTSA) regulates "motor vehicles." That term is defined by our statute as "a vehicle driven or drawn by mechanical power and manufactured primarily for use on public streets, roads, and highways, but does not include a vehicle operated only on a rail line."49 U.S.C.

30102(a)(6). NHTSA does not regulate vehicles manufactured primarily for off-road use (e.g., ATVs, snowmobiles). Instead, the Consumer Product Safety Commission (CPSC) has jurisdiction over the safety of such vehicles.

Our regulation governing VIN requirements, 49 CFR Part 565, Vehicle Identification Number Requirements, is limited in applicability to motor vehicles. The regulation defines the term "VIN" as "a series of Arabic numbers and Roman letters that is assigned to a motor vehicle for identification purposes." 49 CFR 565.3(o) (emphasis added).

In implementing Part 565, NHTSA contracts with the Society of Automotive Engineers (SAE) to generate and assign WMIs, which are required under the VIN regulation, to motor vehicle manufacturers. The SAE is the designated U.S. organization representing the International Standards Organization (ISO) for vehicle-related identification matters.

In your e-mail you provided photos of stand-up scooters, which Transport Canada classifies as restricted use motorcycles (RUMs), representative of the small gas and electric "scooters" currently being imported into Canada. The first photo depicts a "skate-board style" scooter. The scooter is basically a platform on two wheels with a handle bar and small motor, but no seat. The second photo depicts a scooter with a step through body design. The second scooter appears to have foldable handle bars and a removable seat. Information was not provided on the dimensions, power, or speed capacities of the scooters.

Your first question asked if U.S. manufacturers are required to affix a valid, 17 digit VIN to the type of vehicles depicted in the photographs you submitted. The short answer is that all passenger cars, multipurpose passenger vehicles, trucks, buses, trailers (including trailer kits), incomplete vehicles and motorcycles are required to be assigned and equipped with a VIN. 49 CFR 565.2. Regarding the vehicles depicted in the photos, it would first have to be determined if they were "motor vehicles." If these vehicles were "motor vehicles," and were categorized as one of the above vehicle classifications, then they would be required to be affixed with a VIN.

As previously noted, "motor vehicle" is defined at 49 U.S.C. 30102(a)(6) as:

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

When determining if a vehicle is manufactured primarily for use on the public streets, roads and highways, NHTSA will first look to see if the vehicle has on-road capabilities. Historically, if a vehicle has on-road capabilities, the agency has used a maximum speed capability of 20 mph, along with other vehicle characteristics, to divide motor vehicles from non-motor vehicles. [1] While a speed capability of 20 mph or less has not by itself meant that a vehicle is not considered a motor vehicle, a speed capability greater than 20 mph makes it much likelier that a vehicle will be used on the public highways and considered a motor vehicle.

Regarding a motorized scooter without any seat, such as the one in the first photo you submitted, the agency has in the past concluded that this type of vehicle is not a "motor vehicle." [2] As to the second scooter, the agency would rely on the vehicles characteristics (e.g., dimensions, speed capabilities) along with its intended use in order to make a determination. We note that in the upcoming months, the agency intends to further address the classification of two and three wheeled vehicles as motor vehicles through a notice in the Federal Register.

Once a vehicle is determined to be a "motor vehicle" and it falls within one of the vehicle classifications listed in Part 565, then a manufacturer is required to assign and affix a VIN to that vehicle. Part 565 is limited in applicability to motor vehicles, regardless of whether they are manufactured in the U.S. or abroad. Thus the SAE should only generate and assign WMIs to motor vehicle manufacturers. [3]

Approximately six months ago, NHTSAs Office of Vehicle Safety Compliance (OVSC) discovered that the SAE had been issuing WMIs to companies that were not manufacturers of motor vehicles but instead manufacturers of off-road vehicles or motor vehicle equipment, such as motorcycle frames, etc. [4]

This has created a number of problems. Under the existing, ISO-compatible system, there is only a finite and rapidly diminishing number of WMIs available for assignment to motor vehicle manufacturers producing 500 or more vehicles per year. Our current count shows only 604 WMIs available for assignment, and these could be exhausted within the next several years, if current trends continue.

In light of the above, OVSC directed the SAE to cease issuing new WMIs to off-road vehicle manufacturers and to begin to rescind the WMIs erroneously issued to off-road vehicle manufacturers and off-road vehicle equipment manufacturers, as those errors were discovered. OVSC took this action to assure the proper functioning of the VIN system for its intended purpose.

However, manufacturers of off-road vehicles raised the issue of State law provisions that require reporting of a "vehicle identification number" for off-road vehicles. While State regulations generally do not reference Part 565, some States are insisting on VINs that comply with that regulation, and in some cases, manufacturers who do not have such VINs have been fined.

To provide time for manufacturers of off-road vehicles to resolve these issues, we instructed the SAE to stay the rescission of WMIs previously issued to off-road vehicle manufacturers until January 1, 2005. SAE is currently working with off-road vehicle manufacturers to develop a system for WMIs issued to such manufacturers. However, we also instructed the SAE not to issue any new Part 565 WMIs to off-road vehicle manufacturers, so as to not exacerbate the existing problem.

If you have any further questions concerning these matters, please contact Mr. Chris Calamita of my staff at (202) 366-2992.

Sincerely,

Jacqueline Glassman
Chief Counsel

Enclosures
ref:565#595#571.3
d.3/9/04





---

[1] See letter to Mr. Dan Strauser; September 5, 2001 (enclosed).

[2] See letter to Mr. Andrew Grubb, June 12, 1995 (enclosed). "A motorcycle is defined as a motor vehicle with motive power having a seat or saddle for the use of the rider and designed to travel on not more than three wheels in contact with the ground [49 CFR 571.3]."

[3] Importers are required to use the VIN assigned by the original manufacturer. 49 CFR 565.5.

[4] See letter to Kathy R. Van Kleeck, May 21, 2003 (enclosed).

ID: tri-mark.rbm

Mr. Larry Wright
RV Market Manager
Tri/Mark
Industrial Park
New Hampton, IA 50659





Dear Mr. Wright:





This responds to your letter asking whether your side door locking system would meet the requirements of Federal Motor Vehicle Safety Standard (FMVSS) No. 206, Door locks and door retention components (49 CFR 571.206). The answer is yes.

By way of background, the National Highway Traffic Safety Administration (NHTSA) has the authority to issue Federal motor vehicle safety standards applicable to new motor vehicles and new items of motor vehicle equipment. NHTSA, however, does not approve motor vehicles or motor vehicle equipment, nor do we endorse any commercial products. The following represents our opinion based on the facts set forth in your letter and presented in subsequent conversations with Rebecca MacPherson of my staff.

You have requested confidentiality of your incoming request, and we have granted that confidentiality. In order to adequately address your request, however, we must provide a brief, general description of your door retention system.

You stated that your side door locking system consists of two separate locks. One can be locked and unlocked from either the inside or the outside of the vehicle. This lock, which is not attached to the door handle, is the vehicle's primary locking system. The second can only be locked from the outside of the vehicle, but when so locked, will not prevent an individual inside the vehicle from opening the door. This lock serves as a security feature when the vehicle is parked. The door may be the only door on the vehicle or it may be supplemental to traditional front doors. It typically would not qualify as a front door because it would generally be located behind the driver seat. ⁽¹⁾

You asked whether your side door locking system would comply with the requirements of S4.1.3, S4.1.3.1, and S4.1.3.2 of FMVSS No. 206.

Paragraph S4.1.3, FMVSS No. 206 provides:

Door Locks. Each door shall be equipped with a locking mechanism with an operating means in the interior of the vehicle.

We have interpreted S4.1.3 to require the following features: each door must have a locking mechanism, and there must be an interior operating means for engaging the locking mechanism. In your letter you state that your system has an interior means for engaging one of the two door locks. Accordingly, the requirement of S4.1.3 would be met.

Paragraph S4.1.3.1, FMVSS No. 206 provides:

Side Front Door Locks. When the locking mechanism is engaged, the outside door handle or other outside latch release control shall be inoperative.

Based on your explanation of your design, it is unlikely that the affected door would qualify as a front door. If it does qualify as a front door, the requirements for S4.1.3.1 would also be met since both locks on your system prevent an individual from opening the door when it is locked.

Paragraph S4.1.3.2, FMVSS No. 206 provides:

Side Rear Door Locks. In passenger cars and multipurpose passenger vehicles, when the locking mechanism is engaged both the outside and inside door handles or other latch release controls shall be inoperative.

One of the locks in your system will prevent the door from being opened from either inside or outside the vehicle when the lock is engaged. This lock meets the requirements of S4.1.3.2. The security lock does not meet the requirements of S4.1.3.2. However, this lock is supplemental and is not designed to meet the primary purpose of that section, i.e., preventing individuals from inadvertently opening locked doors while the vehicle is in motion.

Thus, the primary locking mechanism would meet the requirements of either S4.1.3.1 or S4.1.3.2, depending on the placement of the door relative to the driver seat. We note that even though the locking mechanism is not directly linked to the door handle, the door's latch release control, it does render the door handle inoperative since the door remains closed when the locking mechanism is engaged.

I hope this information is helpful to you. Should you have any further questions or desire additional information, please feel free to contact Rebecca MacPherson of my staff at this address or at (202) 366-2992.

Sincerely,

Frank Seales, Jr.
Chief Counsel

ref:206
d.7/26/00

1. FMVSS No. 206 defines a side front door as a door that in a side view has 50% or more of its opening area forward of the rearmost point on the driver's seatback when the driver's seat is adjusted to its most vertical and rearward position. The Standard defines a side rear door as a door that in a side view has 50% or more of its opening area rear of the rearmost point on the driver's seatback when the driver's seat is adjusted to its most vertical and rearward position.

ID: Trinkl.1

Ms. S. Trinkl
Quality Management
DEKRA Automobil GmbH
Senftenberger Straβe 30
D-01998 Klettwitz
Germany

Dear Ms. Trinkl:

This responds to your October 10, 2004, letter in which you requested information on how your company may obtain approval as a "DOT-registered test laboratory" in order to conduct testing for vehicles and automotive components, such as glazing materials, destined for the U.S. market. The short answer is the National Highway Traffic Safety Administration (NHTSA) does not approve independent testing facilities, and there is no requirement that testing laboratories meet specific standards. Instead, our regulations require manufacturers to self-certify that their products meet the requirements of all applicable Federal motor vehicle safety standards (FMVSSs). Because testing laboratories, in practice, may play a role in this process, we would take this opportunity to further explain our certification process for new motor vehicles and items of motor vehicle equipment.

By way of background, NHTSA is authorized to issue FMVSSs that set performance requirements for new motor vehicles and items of motor vehicle equipment. For example, one of those standards is FMVSS No. 205, Glazing Materials (49 CFR 571.205), which specifies performance requirements for various types of glazing. Unlike in Europe, however, the United States does not have an approval process for these products. Instead, as noted above, a manufacturer of motor vehicles or motor vehicle equipment must self-certify that its products comply with all applicable safety standards, prior to offering such products for sale.

Each of our safety standards specifies the test conditions and procedures that NHTSA will use to evaluate the performance of the vehicle or equipment when testing for compliance with that particular standard. NHTSA follows each of the specified test procedures and conditions in effect at the time of product certification when conducting its compliance testing. However, a manufacturer is not required to test its products only in the manner specified in the relevant safety standard, or even to test the products at all. A manufacturer may choose any means of evaluating its products to determine whether the vehicle or item of equipment complies with the requirements of the safety standards (including submission to a testing laboratory), provided that the manufacturer assures that the vehicle or equipment will comply with the safety standards when tested by the agency according to the procedures specified in the standard. The requirements concerning certification may be found at 49 CFR Part 567, Certification.

A manufacturer may be 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 under 49 U.S.C. Chapter 301, unless it can establish that it exercised "reasonable care" in the design and manufacture of the product and in the evaluation (through actual testing, computer simulation, engineering analyses, or other means) to ensure compliance, but nevertheless did not have reason to know that the vehicle or item of equipment did not in fact comply with the safety standards. This agency has long held 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. While one element of "reasonable care" would be the use of appropriate testing laboratories, there is no explicit requirement that testing laboratories be used or that they meet specific standards. Again, NHTSA does not approve independent testing facilities, nor will it recommend any particular testing center be utilized.

I hope you find this information helpful. If you have any 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:205
d.12/30/04

ID: Triplex

Mr. Paul Katz
President
Triplex Manufacturing Company
2700 West 50th Street
Chicago, IL 60632

Dear Mr. Katz:

This responds to your letter seeking our opinion whether Federal Motor Vehicle Safety Standard (FMVSS) No. 108, Lamps, Reflective Devices, and Associated Equipment, would preempt State laws seeking to establish requirements for insurers or repair businesses to install only vehicle lamps and lighting parts that are made by original equipment manufacturers (OEMs).

Your letter was prompted by the case of Avery v. State Farm, which we understand is now on appeal before the Illinois Supreme Court, and various proposed state laws that would make distinctions between OEM and non-OEM parts. You asked two questions.

First, you asked whether OEM and non-OEM lamps and lighting parts are of "like kind and quality" under FMVSS No. 108. In your letter, you state that the term "like kind and quality" is a term that was used by the court in Avery v. State Farm. The term does not appear in the statutes we administer or in our regulations. We note that the requirements under FMVSS No. 108 for original equipment and non-original equipment are the same, and further that the Federal motor vehicle safety standards establish minimum performance requirements. Because FMVSS No. 108 allows a wide range of performance, and does not include specifications that apply to non-safety characteristics such as fit and finish, different lamps may not be of "like kind and quality" yet still comply with Federal requirements.

Second, you asked whether Federal law preempts states from establishing standards for vehicle lamps and lighting parts that are different than those of FMVSS No. 108 based solely on whether the manufacturer is an OEM or non-OEM. Federal law preempts states from enacting laws that impose different requirements from those mandated by the Federal motor vehicle safety standards. States may, however, regulate in various areas including enacting operational, inspection and insurance requirements. In this way, states may be able to establish rules with respect to the repair of crashed vehicles without acting in a manner that is inconsistent with Federal law.

If you have further questions, you may refer them to Mr. Edward Glancy of this office (202-366-2992).

Sincerely,

Jacqueline Glassman
Chief Counsel
cc: Lawrence F. Henneberger, Esq.

ref:108
d.1/21/04

ID: Tunick telltale 001515

ID: Tunick.2

Mr. Lance Tunick
Vehicle Services Consulting, Inc.
P.O. Box 23078
Santa Fe, NM 87502-3078




Dear Mr. Tunick:

This responds to your October 18, 2004, letter in which you requested an interpretation of Federal Motor Vehicle Safety Standard (FMVSS) No. 205, Glazing Materials (49 CFR 571.205). Specifically, you asked whether our September 26, 2003, Federal Register notice (68 FR 55544) making correcting amendments to the standard would preclude the use of Item 4A glazing in the rear window of a convertible. The answer to your question is no.

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. One of those standards is FMVSS No. 205, which specifies performance requirements for various types of glazing. FMVSS No. 205 incorporates by reference the American National Standard Institutes (ANSI) Safety Code for Safety Glazing Materials for Glazing Motor Vehicles Operating on Land Highways (ANSI Z26.1). Accordingly, a manufacturer must certify compliance of its product with the requirements of FMVSS No. 205, including those requirements incorporated from ANSI Z26.1.

As noted in your letter, NHTSA is in the process of modifying the regulatory requirements under FMVSS No. 205, by shifting from the currently referenced 1977 version of ANSI Z26.1 (supplemented by Z26.1a-1980) to the 1996 version of that ANSI standard. A final rule to effect this change was issued on July 25, 2003 (68 FR 43964). However, subsequent notices were issued extending the compliance date for the final rule, most recently to September 1, 2006 (see 69 FR 51188 (August 18, 2004)).

One aspect of the amendments to existing Standard No. 205 involved the location requirements for Item 4A glazing. However, after issuance of the July 2003 final rule, NHTSA discovered that the location requirements for Item 4A glazing contained in the 1996 version of ANSI Z26.1 had the effect of modifying the agencys existing requirement that Item 4A glazing only be used in side windows rearward of the C pillar, by now permitting use of Item 4A glazing rearward of the B pillar. This substantive change to the Federal standard was unintended and contrary to long-standing agency policy. As stated in our August 12, 1996, final rule permitting

the installation of Item 4A glazing, "It has always been NHTSAs intent that Item 4A glazing not be permitted in areas where it may come into contact with an occupants head" (61 FR 41739, 41741). The concern has been to locate Item 4A glazing away from seating positions where occupants riding in those seating locations may be able to contact their heads against that glazing during a crash, because such glazing, when broken, could produce sharply pointed shards.

Accordingly, NHTSA published a correcting amendment to reinstate the location restrictions for Item 4A glazing contained in the previous version of FMVSS No. 205. To this end, paragraph S5.5 was added, providing, "Item 4A glazing, as specified in ANSI/SAE Z26.1-1996, may only be used in side windows rearward of the C pillar". (68 FR 55544, 55545

(Sept. 26, 2003)). This provision merely clarifies which side windows may use Item 4A glazing; it was not intended to restrict other specified locations where installation of Item 4A glazing is permissible.

We understand that Item 4A glazing meets or exceeds the properties of Item 4 glazing, so it would make little sense to impose more restrictive location requirements for Item 4A glazing. Thus, S5.5 does not alter that portion of ANSI Z26.1 that permits Item 4A glazing "[i]n all areas in which Item 4 safety glazing may be used", one of which is the rear window of convertible passenger car tops (see ANSI Z26.1 (1996 version) Item 4A(a), referencing permissible locations in Item 4(a)-(m)). We intend to issue a clarifying amendment in the near future.

If you have any 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:205
d.2/23/05