ID: 17325.ztv

Mr. F.G.M. Bol
Car Innovations
P.O. Box 143
2665 ZJ Bleiswijk (Holland)
Netherlands

Dear Mr. Bol:

This is in reply to your January 1998 letter to the Department informing us of your V.E.B. System, and stating that "it remains to you the decision to commercialize this product in co-operation with us."

You are interested in marketing this system "with an auto-manufacturer." Therefore, you intend the V.E.B. system to be installed as original equipment on motor vehicles manufactured for sale in the United States. The system may be best described as a center highmounted stop lamp that displays a vehicle's registration number under ordinary circumstances and the word "stolen" when the vehicle is being operated without the owner's authority.

The center highmounted stop lamp must comply with all requirements of United States Federal Motor Vehicle Safety Standard No. 108. One of these requirements is that the lamp comply with the requirements of Figure 10. This Figure prescribes minimum and maximum candela to be measured at 18 individual test points. If any one of these test points is obscured by the vehicle's registration number or the word "stolen," then it is not legal to install the lamp on a motor vehicle. We believe that it might be difficult to design a lamp that both displays the information you anticipate and meets Standard No. 108. I enclose a copy of Figure 10 so that you may determine whether any of the 18 test points may be obscured by the V.E.B. system. A second requirement is that the lens area must be at least 4.5 square inches. Any obstruction would affect this, too.

Standard No. 108 also prohibits the installation of any device that impairs the effectiveness of required lighting equipment such as the center stoplamp. Even if the candela and lens area requirements are met, the clarity and meaning of the stop signal may be undermined by letters or numbers appearing when the lamp is lit that have no relation to the stop lamp function.

The Department has no authority to engage in commercial promotions with manufacturers, and we cannot help you with this product.

Finally, we would like to call your attention to a typographical error on the cover and interior of your sales folder. The verb indicating theft in English is "to steal," not "to steel."

Sincerely,
John Womack
Acting Chief Counsel
Enclosure
ref:108
d:5/6/98

ID: 1732y

Peter J. Yanowitch, Esq.
Messrs. Davis, Markel, & Edwards
66 West Flagler Street, SUite 608
Miami, FL 33130
Re: Importation of Porsche 959

Dear Mr. Yanowitch:

This is in reply to your letter of February 27, l989, requesting a response by March l0 as to whether the Department would permit the importation of a Porsche 959 pursuant to l9 CFR 12.80(b)(1)(v).

Specifically, you represent a non-resident of the United States who wishes to import such a vehicle, and operate it on the public roads of this country during the l-year period. You have asked for confirmation in writing that if the vehicle is imported on this basis that "the Department of Transportation would not have jurisdiction to impound, confiscate, destroy, require a bond, or otherwise take any action with respect to the vehicle, so long as the non-resident fully complies with the provisions" of 12.80(b)(l)(v), and, further, that the Department "would not object to the non-resident driving this vehicle on the road" while it is in the United States. You also state that your client is prepared to submit "sworn testimony that he will comply with the requirements of the United States Customs Regulations."

Under l9 CFR 12.80(b)(l), each vehicle offered for introduction into the Customs territory of the United States shall be denied entry unless the importer files a declaration which declares that "(v) The importer...is a non-resident of the United States, is importing the vehicle...primarily for personal use for a period not exceeding l year from the date of entry, will not sell it in the United States during that period, and has stated his passport number and country of issue...in the declaration." This provision 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. However, this agency does not construe either the regulation or the treaties as conferring an absolute right upon any non-resident to import a non-conforming vehicle if considerations of policy dictate a determination that such entry would not be in the interests of the United States. Chief among these considerations is whether the importer has previously imported a motor vehicle in violation of the importation regulations. Accordingly, we wish to review your client's declaration before the time the vehicle arrives at the port of entry. I enclose a copy of our Form HS-7 for its completion and return to us. We request that a photocopy of the title or other certificate of ownership be enclosed as well. We also ask that a statement be attached to the declaration, so that it becomes a part of it and subject to penalties in the event that it is false or misleading, in which your client discloses whether he has ever imported into the United States any motor vehicle manufactured on or after January l, l968, and, if the answer is affirmative, to provide the make, model, and port and approximate date of entry, and the name of the importer or consignee as it appeared on the declaration. Finally, we also request an affirmation from your client that he will not sell the vehicle, or offer it for sale, either before or during its stay in the United States, and that he will export it at the end of the l-year period.

When we have received and reviewed the declaration and statement we shall be pleased to consider this matter further, and we shall answer your questions at that time.

Sincerely,

Erika Z. Jones Chief Counsel

Enclosure ref:MIS d:3/20/89

ID: 17331.ztv

Angela Dyer, Company Secretary
Broomstick Cars Limited
Willow Farm
Ivinghoe
Aston Leighton Buzzard
Bedfordshire LU7 9DG
England

Dear Ms Dyer:

Forgive my delay in replying to your letter of 4th February 1998, regarding the possible importation into the United States of a Jaguar XK120 replica "as a vehicle over 25 years old."

According to your letter, the car has "a new chassis and GRP body panels, but most of the parts are from the original car. These include engine, gear box, suspension, steering, transmission and axles." You have explained that the original car is a "Jaguar S type over 25 years old."

Under 49 U.S.C. 30112(b)(9), "a motor vehicle that is at least 25 years old" may be imported into the United States without having to comply with the Federal motor vehicle safety standards. Although the Jaguar XK 120 replica is composed partly of parts that may be over 25 years old, the car's age is computed as of its date of its manufacture. Thus, a replica assembled in 1998 is not "a motor vehicle that is at least 25 years old" and it cannot be imported into the United States under Sec. 30112(b)(9).

Sincerely,
John Womack
Acting Chief Counsel
ref:591
d.5/13/98

ID: 17332.nhf

Mr. Bud White
Honcho Products Company
3821 County Road 255-D
Henderson, TX 75652

Dear Mr. White:

This responds to your letter requesting information on regulations applicable to the sale and installation of a flatbed conversion package manufactured for small ton pick-up trucks. I apologize for the delay in my response.

You state that you plan to manufacture a 6'-6" wide, 8' long steel flatbed that is designed to replace the standard bed on a small pick-up such as the standard cab, long wheelbase models of the Chevy S-10, Ford Ranger, and Dodge Dakota pickups. According to your letter, the conversion is intended to increase the bulk level load carrying capability of the trucks without increasing the manufacturer's gross vehicle weight rating (GVWR) load capacity. You also state that you intend to offer additional accessories such as steel boxes, side rails, replacement dual steel rear wheels, overload springs/shock absorbers, and cab and bed clearance lights. You explain that you intend to import some of these components. I appreciate the opportunity to explain the National Highway Traffic Safety Administration's (NHTSA's) governing statutes and regulations to you.

We would like to begin by explaining that 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 approve motor vehicles or motor vehicle equipment. Manufacturers are required to certify that their products conform to our safety standards before they can be offered for sale. NHTSA's certification requirements are set forth at 49 CFR Part 567.

You state that the truck bed will be offered as a replacement for existing truck beds. The statutes and regulations applicable to the installation of the conversion truck bed will differ depending on whether the truck bed is installed before or after the first retail sale of the vehicle. A business that replaced the original truck bed with the truck bed you manufacture prior to the first retail sale of the vehicle, would be considered an alterer and would be required to affix its own label identifying itself and certifying that the vehicle, as altered, continues to comply with all applicable Federal motor vehicle safety standards. See 49 CFR 567.7.

A business that replaced the original truck bed with the truck bed you manufacture after the first retail sale of the vehicle would not have not to certify that the vehicle, as converted, continues to comply with the standards. However, the business would have to comply with NHTSA's statutory make inoperative prohibition. Manufacturers, distributors, dealers, and repair businesses are prohibited from "knowingly making inoperative" any device or element of design installed on or in a motor vehicle in compliance with an applicable standard. In general, the "make inoperative" prohibition (49 U.S.C. 30122) requires businesses which modify or convert motor vehicles to ensure that they do not remove, disconnect, or degrade the performance of safety equipment installed in compliance with an applicable standard. Violations of this prohibition are punishable by civil penalties of up to $1,100 per violation.

You should be aware that the conversion could affect the truck's compliance with several of NHTSA's safety standards. For example, replacing the original truck bed with the conversion truck bed could affect the vehicle's compliance with Standard No. 301, Fuel System Integrity. This standard sets performance requirements for fuel systems in crashes to preserve the integrity of the fuel system in a crash to prevent occupant exposure to fire. As another example, the vehicle's compliance with Standard No. 108, Lamps, Reflective Devices and Associated Equipment, would be compromised if the conversion bed somehow obscured the center highmounted lamp required by the standard. Any business that installs the conversion bed must ensure that the vehicle continues to comply with all applicable safety standards. The installation of dual wheels may widen the vehicle to greater than 80 inches. Should this occur, clearance and identification lamps must be installed.

In response to your question as to whether there are any regulations that apply to steel wheels and clearance lights, Standard No. 119, New pneumatic tires for vehicles other than passenger cars, and Standard No. 120, Tire selection and rims for motor vehicles other than passenger cars, apply to dual steel rear wheels, and Standard No. 108, Lamps, Reflective Devices and Associated Equipment applies to the clearance lights. The installation of dual wheels may widen the vehicle to greater than 80 inches. Should this occur, clearance and identification lamps must be installed.

You should also be aware that manufacturers of motor vehicles and items of motor vehicle equipment are responsible for any safety-related defects in their products. If a manufacturer or NHTSA determines that a safety-related defect exists, the manufacturer must notify purchasers of the product and remedy the problem free of charge. Thus, as a manufacturer, you are responsible for notification and remedy of safety related defects or noncompliances that are discovered in the kit either before or after its installation on motor vehicles. The defect requirement applies to all motor vehicle equipment, even in the absence of a safety standard. See 49 CFR Part 577, Defect and Noncompliance Notification, 49 CFR Part 573, Defect and Noncompliance Reports, and 49 CFR Part 579, Defect and Noncompliance Responsibility.

Finally, your letter indicates that you may import some of the motor vehicle equipment for the conversion package. As a general rule, all motor vehicles and items of motor vehicle equipment must conform (and be certified by their manufacturer to conform) to all applicable Federal motor vehicle safety standards issued by this agency in order to be imported into the United States and sold here.

I hope this information is helpful. I am also enclosing a copy of a fact sheet titled "Information for New Manufacturers of Motor Vehicles and Motor Vehicle Equipment." It outlines other laws and regulations that you should be aware of. If you have any further questions about NHTSA's safety standards, please feel free to contact Nicole Fradette of my staff at this address or by telephone at (202) 366-2992.

Sincerely,
Frank Seales, Jr.
Chief Counsel
Enclosure
ref:VSA
d.6/30/98

ID: 17338.ztv

Mr. Michael Krumholz
2301 N.W. 33rd Court, Unit 104
Pompano Beach, FL 33069

Dear Mr. Krumholz:

This is in reply to your fax of February 11, 1998, to Taylor Vinson of this Office.

With respect to "the standards for blue and yellow fog and driving lamps under Federal law," you ask us to confirm your understanding that "these lights are allowed as long as they do not impair the effectiveness of the required lighting equipment for motor vehicles."

We are happy to confirm your understanding. Federal Motor Vehicle Safety Standard No. 108 Lamps, Reflective Devices, and Associated Equipment does not prescribe specifications for fog lamps or driving lamps, either as standard or optional equipment. This means that the individual states have the authority to regulate the performance of these lamps, and even to forbid them. Most if not all states regulate the color of auxiliary lamps, either directly or through reference to standards of the Society of Automotive Engineers. Those standards prescribe white to yellow as the permitted color and state how to measure it. Also, most states prohibit lamps from emitting blue light because that color is often reserved for police and emergency vehicles. I am sorry that we cannot advise you on the laws of the individual states. You will have to contact the Department of Motor Vehicles in each state for an answer.

Standard No. 108 prohibits supplementary original lighting equipment such as fog lamps or driving lamps if they impair the effectiveness of lighting equipment required by Standard No. 108. One example of impairment would be if a fog lamp were installed so close to a turn signal lamp (required by Standard No. 108) that its brightness masked the turn signal. To prevent this, front fog lamps must be located either more than 100 mm from a front turn signal lamp, or the turn signal must be up to 2.5 times more intense than otherwise required, depending on its distance from the fog lamp. See paragraph 5.1.5.4 of SAE Standard J588NOV84 Turn Signal Lamps for use on Motor Vehicles Less Than 2032 MM in Overall Width, incorporated by reference in Standard No. 108.

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

Sincerely,
John Womack
Acting Chief Counsel
ref:108
d.4/8/98

ID: 1733y

The Honorable J. James Exon
United States Senator
287 Federal Building
l00 Centennial Mall North
Lincoln, NE 68508

Dear Senator Exon:

Thank you for your letter of February 9, 1989, in which you inquired about the status of a letter to this office from Mr. Ron Moxham, one of your constituents. I apologize for the delay in responding to Mr. Moxham.

In his inquiry, Mr. Moxham asked about the applicability of the National Highway Traffic Safety Administration's (NHTSA's) regulations to an add-on-trunk for mini vans, pickup trucks, Blazers, and other vehicles. He described his product as a detachable box that could be attached to the liftgate, bumper, or frame at the rear of a vehicle and extend 16 to 20 inches beyond the bumper. Your constituent asked whether there are any regulations applicable to this product, especially in relation to the vehicle's tail lights and other lighting components. He also asked whether his product would be required to have its own separate lighting equipment and its own separate bumper.

By way of background information, NHTSA does not provide approvals of motor vehicles or motor vehicle equipment. Under the statutes administered by NHTSA, it is the responsibility of the manufacturer to ensure that its vehicles or equipment comply with all applicable standards. The following represents our opinion based on the facts provided in Mr. Moxham's letter.

NHTSA does not have any specific regulations covering an add-on trunk. However, the addition of such a device could affect a vehicle's compliance with various safety standards. For example, an add-on trunk could affect a vehicle's compliance with Standard No. l08, Lamps, Reflective Devices, and Associated Equipment, by obscuring the vehicle's rear lights from some angles of view. This adverse effect could be offset by the addition of supplementary lighting devices to the trunk. See S4.3.1.1 of Standard No. 108. (Copy enclosed.)

If an add-on trunk 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 safety standards.

If such a device is added to a previously certified new motor vehicle prior to its first sale, the person who modifies the vehicle may have certification responsibilities as an "alterer" under 49 CFR Part 567.7. This would occur if the installation of the add-on trunk either altered the vehicle's stated weight ratings or constituted the installation of something that is not a "readily attachable" component. To ascertain whether the installation involves readily attachable components such factors as the intricacy of installation, and the need for special expertise must be taken into consideration. More information regarding the method of installation is necessary before we could determine whether the installation of the add-on trunk was the installation of a readily attachable component.

A person who modifies a vehicle prior to its first sale is also affected by other Federal requirements, whether or not that person is considered an "alterer." Section l08(a)(l)(A) of the National Traffic and Motor Vehicle Safety Act generally provides that no person may "manufacture for sale, sell, offer for sale, or introduce or deliver for introduction in interstate commerce, or import into the United States," any motor vehicle or item of motor vehicle equipment that does not comply with an applicable Federal motor vehicle safety standard. In addition, under section l08(a)(2)(A) of the Act, no manufacturer, distributor, dealer, or motor vehicle repair business may knowingly render inoperative, in whole or in part, any device or element of design installed on or in a motor vehicle or item of motor vehicle equipment in compliance with an applicable Federal motor vehicle safety standard.

If an add-on trunk 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, it would be subject to the "render inoperative" requirement cited above. Thus, the installer would have to make sure that it did not knowingly render inoperative, in whole or part, any device or element of design installed on or in a motor vehicle or item of motor vehicle equipment in compliance with an applicable Federal motor vehicle safety standard.

I note that in a letter dated September 25, l987, NHTSA indicated that a person who installs a lift platform on the rear of a car, thereby blocking a lamp required by Standard No. l08, could avoid violating the prohibition against rendering inoperative by installing an auxiliary lamp meeting the standard's photometric requirements. Since that situation may have similarities to the one faced by Mr. Moxham, I am enclosing a copy of the letter.

Mr. Moxham did not specifically indicate whether his product would be sold for passenger cars. NHTSA has a bumper standard which sets forth requirements for the impact resistance of passenger cars in low speed front and rear collisions. The addition of an add-on trunk could affect a passenger car's compliance with the bumper standard. Enclosed is an information sheet which identifies relevant Federal statutes and NHTSA standards and regulations affecting motor vehicle and motor vehicle equipment manufacturers. Mr. Moxham should also be aware that state laws may apply to his device.

I hope this information is helpful.

Sincerely,

Erika Z. Jones Chief Counsel

Enclosures

cc: Washington Office /

ref:567#571#108# d:3/l7/89

ID: 17340-2.pja

Mr. Richard Dorris
President
QMC
18071 Mt. Washington St.
Fountain Valley, CA 92708

Dear Mr. Dorris:

This responds to your letter requesting an interpretation of whether the trailer mounted hydraulic cranes your company manufactures would be excluded from the National Highway Traffic Safety Administration's (NHTSA's) rear impact protection (underride guard) regulations. The vehicles have, near their rear, under the bed, outriggers that stabilize the trailer while the crane is operating. The outriggers slide horizontally out of a housing and extend laterally several feet from the side of the trailer. You ask whether, due to the unique nature of these vehicles, they would be excluded as special purpose vehicles. As explained below, it is our opinion, based on the information you provided, that the regulation does not apply to them because these vehicles are not considered motor vehicles under our statute. Therefore, these trailers would not need to be fitted with a compliant rear impact guard.

Chapter 301 of Title 49, U. S. Code authorizes the Secretary of Transportation, through this agency, to establish Federal motor vehicle safety standards applicable to new motor vehicles and new items of motor vehicle equipment. The pertinent part of 49 U.S. Code 30102(6)) defines the term "motor vehicle" as "a vehicle driven or drawn by mechanical power and manufactured primarily for use on the public streets, roads, and highways  . . ." (emphasis added).

Your trailer mounted hydraulic cranes are not motor vehicles, within the statutory definition quoted above. In a July 8, 1998, telephone conversation with Paul Atelsek of my staff, you stated that they are utilized primarily on construction sites but are occasionally transported over the public roadways from one job site to another, at which they typically spend extended periods of time. In such cases, the on-highway use of the vehicle is considered merely incidental and is not the primary purpose for which the vehicle was manufactured. This is in contrast to vehicles, such as dump trucks, which frequently use the public roadways going to and from job sites, but stay at a job site for only a limited time. Such vehicles are considered motor vehicles, since their on-highway use is more than "incidental."

Based on your description of their use, it is our opinion that your trailer mounted hydraulic cranes are not motor vehicles, and therefore are not subject to the underride guard requirements of Standard No. 224. However, if we were to receive information that your trailers were used on the roads more than on an incidental basis, then we would have to reconsider this opinion.

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

Sincerely,
Frank Seales, Jr.
Chief Counsel
ref:224
d.9/16/98

ID: 17341.wkm

Mr. Richard H. Allen
Chief Engineer
Eagle Iron Works
129 Holcomb Avenue
Post Office Box 934
Des Moines, IA 50304-0934

Dear Mr. Allen:

Please pardon the delay in responding to your letter to this office in which you asked whether the processing equipment that your company produces for the aggregate industry is excluded from the antilock brake system (ABS) requirement of Federal Motor Vehicle Safety Standard (Standard) No. 121, Air brake systems. The answer is yes.

You stated that some of the equipment that you manufacture is wheel-mounted for ease of transport from the factory to the customer and by the customer between job sites as required. You explained that the equipment is not load-carrying since the equipment is the load. You stated that the equipment was designed to spend its entire life at mining or quarry sites and would probably spend less than one percent of its life on the road. You enclosed brochures depicting and describing the various lines of equipment that you manufacture, specifically alluding to your wheel-mounted portable Sand Washing-Classifying machine, wheel-mounted portable Sand Washer-Classifier-Dehydrator, and your portable wheel-mounted Log Washers.

Chapter 301 of Title 49, U.S. Code (hereinafter Safety Act) authorizes this agency to establish Federal motor vehicle safety standards applicable to new motor vehicles and new items of motor vehicle equipment. The Safety Act defines "motor vehicle" as:

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

49 U.S.Code 30102(a)(6).

In reviewing the information you provided, including your brochures, it is our opinion that the aggregate equipment that you described and as depicted in your brochures are not motor vehicles within the statutory definition. They are obviously designed to be used primarily off-road and although they are portable and therefore capable of being transported on-road from the factory to the customer and by the customer from one job site to another, their on-road use is only incidental and not the primary purpose for which the equipment was manufactured. Not being motor vehicles, therefore, your wheel-mounted items of equipment, such as your Sand Washing-Classifying machines, Sand Washer-Classifier-Dehydrators, and Log Washers are not required to comply with the Federal motor vehicle safety standards, including Standard No. 121.

Standard No. 121 (copy enclosed), requires trailers, among other vehicles, equipped with air brake systems to be equipped with ABS. Excluded from that requirement, however, is

Any trailer that has an unloaded vehicle weight which is not less than 95 percent of its GVWR.

49 CFR 571.121, paragraph S3(f).

Your information would indicate that the equipment in question would also meet this exclusion since, as mentioned above, the equipment is the load. Accordingly, even if your equipment were considered motor vehicles, they would still be excluded from the ABS requirement under this provision.

I hope this information is helpful to you. Should you have any further questions or need additional information, feel free to contact Walter Myers of my staff at this address or at (202) 366-2992, fax (202) 366-3820.

Sincerely,
Frank Seales, Jr.
Chief Counsel
Enclosure
ref:121#VSA
d.6/1/98

ID: 17343-2.pja

Mr. Robert S. Toms
Manager of Engineering
Power Brace
7640 60^th Ave.
Kenosha, WI 53142

Dear Mr. Toms:

This responds to your letter requesting an interpretation of whether the elastomeric material your company manufactures could be used to comply with the energy absorption requirements of the National Highway Traffic Safety Administration's (NHTSA's) rear impact protection (underride guard) regulations. Specifically, you ask whether the requirement that the energy absorption be accomplished by plastic deformation would preclude a material that returns to its original shape (i.e., elastic) very slowly, on the order of approximately 24 hours. As explained below, this material could be used as the active energy absorbing material to pass our compliance tests.

Federal Motor Vehicle Safety Standard No. 223, Rear impact guards (49 CFR 571.223, published on January 24, 1996 at 61 FR 2004) requires that underride guards fitted to new trailers and semitrailers provide a certain amount of energy absorption to lessen the crash forces on a passenger vehicle colliding from the rear. S5.2.2 of the standard states that "[a] guard  . . .shall absorb by plastic deformation within the first 125 mm of deflection at least 5,650 J of energy at each test location P3" (emphasis added). The test procedures basically require application of a force by a steel block, while recording the force at least ten times per 25 mm, until the guard has been deflected 125 mm. S6.6(c) then requires NHTSA to "[r]educe the force until the guard no longer offers resistance to the force application device. Produce a force vs. deflection diagram . . . Determine the energy absorbed by calculating the . . . area bounded by the curve of the force vs. deflection diagram and the abscissa (x-axis)" (emphasis added). Therefore, the elastic component of energy is not normally counted toward meeting the energy absorption requirements.⁽¹⁾

One word in S5.2.2 that requires interpretation in this case is the word "plastic." In this context, plastic means capable of being molded, bent, or assuming a new form or shape. Although plastic deformation is normally thought of as permanent, and elastic deformation temporary, there is no time frame explicitly attached to these meanings. Whenever appropriate, NHTSA interprets its regulations consistent with their purposes.⁽²⁾ The requirement that guards absorb energy was designed to ensure that guards were not too rigid during the onset of force in a crash. The requirement that they absorb the energy by plastic deformation was to ensure that the guard did not subsequently return the absorbed energy to the colliding vehicle, because that energy return could increase the chance of death or injury to the occupants. However, any rebound occurring after the crash event, especially slow rebound such as is produced by your elastomer, does not pose any threat to passenger vehicle occupants. Therefore, for real world safety purposes, the time frame within which a material must retain its deformed shape to be considered "plastic" is the duration of a crash event.

The relevant time period for compliance purposes, however, is longer. Standard No. 223 employs a quasi-static test, not a dynamic test, when it tests for compliance with its requirements. NHTSA has no way of determining whether a material would rebound within the time frame of the crash. Therefore, if your elastomer reacts in such a way that it passes the test procedure, it will have passed the requirements, for practical purposes. The critical piece of information you need to determine whether your material will pass the test is when the test ends.

A specific event determines when the test ends. The force application/withdrawal portion of the test procedure is over as soon as the guard no longer offers resistance to the force application device. Since S6.6(c) is a list of steps to be performed, it is reasonable to assume that once a certain step is completed, the next step will be commenced. The step of reducing the force proceeds only "until the guard no longer offers resistance." In practical terms, the guard will generally cease to offer resistance when it loses contact with the force application device. NHTSA has no way of determining any small amount of residual force generated by your elastomer after that point. A properly calibrated load cell (a typical load measuring device) should register zero load, and the force deflection trace should meet the abscissa of the graph upon separation. After that happens, the test itself is completed and all that remains is the computation of the amount of energy absorbed using the area within the force deflection curve.

For a manufacturer to predict the energy absorption of a guard equipped with your elastomer during NHTSA's compliance testing, it needs to have some idea of the rate at which the force application device will be withdrawn. Although the event concluding the test is known, that event can occur at different times, resulting in different amounts of measured energy absorption from the same guard. For example, if the force application device is withdrawn slowly enough, your company's slow-rebounding elastomer may never lose contact with the guard, which could result in a computation showing little apparent energy absorption. On the other hand, if it is withdrawn quickly from the same guard, the force application device would lose contact quickly and more apparent energy would be absorbed.

The rate of withdrawal has not been specified in the regulation or in the test procedures. The equipment that NHTSA and most manufacturers use to test the guards determines, to a large extent, the rate of withdrawal. Force is normally applied using a large hydraulic ram, powered by pumps. Using this system, the ram is withdrawn by reversing the pump. This results in a withdrawal rate about the same as the rate of force application. This relief of force also enhances the safety of the persons performing the test and lengthens the life of the test equipment by reducing the chances of a catastrophic failure of some part of the test device.

Specifying a particular rate of force withdrawal is not necessary or practical. To provide flexibility to the manufacturers, S6.6(a) of the test procedure permits the manufacturer to specify the rate of force application, within a range of 2.0 to 9.0 cm per minute. To accommodate the manufacturer's specified force application rate and guard design, NHTSA may have to vary its test equipment, which might affect the rate at which it can withdraw the force application device. However, it is reasonable to assume that NHTSA can withdraw the force application device at least as quickly as it applied the force.

Therefore, where possible, NHTSA will withdraw the force application device at a rate equal to or slightly faster than the manufacturer's specified force application rate. This gives the manufacturers some control by allowing them to specify the lower bound for the withdrawal rate. If the manufacturer tested its guard by withdrawing the guard at the force application rate, or a little slower, then the amount by which the NHTSA's rate of withdrawal might be higher than the specified rate is not critical, because higher withdrawal rates can only result in earlier separation of the guard from the force application device, and a higher level of computed energy absorption by the guard. In other words, the higher the rate, the more likely the guard is to comply with the energy absorption requirement.

In summary, your elastomer could be used to comply with the standard if it passes the compliance test in Standard No. 223. Based on your description of the behavior of the elastomer, we see no reason why a guard equipped with it would not be able to pass our compliance tests. If you have any further questions, please feel free to contact Paul Atelsek of my staff at this address or by telephone at (202) 366-2992.

Sincerely,
Frank Seales, Jr.
Chief Counsel
ref:224
d.8/4/98

1. These requirements, as stated, are adequate for testing guards made of most materials. Most guards made of steel would exhibit only a small amount of elastic deformation. Therefore, the guard would stay deformed and the force curve would descend to and intersect the abscissa close to the maximum deformation, exhibiting little rebound. Most elastic materials would rebound quickly and completely, following closely the curve produced during force application, descending to the abscissa only at the point of origination. However, your elastomer returns the energy very slowly.

2. When a standard does not specify a particular test condition, we begin with a presumption that the requirements must be met in every test condition in which the test can be conducted. See, for example, NHTSA's October 2, 1990 letter to Mr. S. Kadoya of Mazda. In this case, that would mean that the agency could retract the test device at any rate. However, the agency also looks to the language and purposes of the standard to see if a limitation should be implied. In this case, we find an implied limitation on the retraction speed based on the standard's purposes. Retracting the device at extremely low rates would also only prolong testing.

ID: 11958-2.pja

Mr. Bruce M. Gates
Gates Brothers Glass Shops
P.O. Box 657
Bellefontaine, OH 43311

Dear Mr. Gates:

This responds to your May 22 and May 23, 1996, e-mails concerning the practice of some auto glass replacement companies of replacing windshields in used vehicles using a butyl tape. You believe that this practice is unsafe because the butyl tape withstands less pressure than the primers and urethane that your company uses, and that you say the vehicle manufacturers specify in their installation procedures.

A provision in our statute (49 USC, Chapter 301) prohibits motor vehicle repair businesses from "knowingly mak[ing] inoperative any part of a device or element of design installed on or in a motor vehicle or motor vehicle equipment in compliance with a motor vehicle standard . . . ." (30122(b)). You appear to be aware of that provision and that the National Highway Traffic Safety Administration (NHTSA) has a longstanding position that the replacement of a damaged windshield is not a "making inoperative" with respect to the windshield mounting standard (Standard 212), regardless of the method used to maintain the integrity of the windshield. (See, e.g., enclosed October 5, 1983 letter to Mr. Anthony M. Peterson.) Section 30122(b) would not apply because the windshield mounting was already "inoperative" when it was brought to the repair shop.

You ask us to reconsider this position, believing that vehicles have changed dramatically in the last decade, such as by having "air bags that deploy off the windshield and so many vehicles relying on Urethane to provide the necessary support to the roof structure . . . ."

We are unable to agree that the "make inoperative" provision could require a replacement windshield to be installed as though it were new. The provision does not require repair businesses to ensure that damaged (or worn) systems brought in for repair perform better after repair than they did before repair. Assuming that the original urethane sealant was an element of design necessary to comply with the air bag or roof crush requirements, the element of design was already "made inoperative" when the vehicle was brought to the repair shop.

While NHTSA does not currently regulate the use of butyl tape in windshield replacement, we want to find out more about the safety implications of the practice. Accordingly, we have forwarded your e-mail to our safety engineers for further consideration.

Please call Paul Atelsek of my staff at (202) 366-2992 if you have any further questions.

Sincerely,

Samuel J. Dubbin

Chief Counsel

Enclosure

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