ID: 2849o

Mr. Bruce Niebrugge
Vice President/General Manager
Mid America Design, Inc.
U.S. Route 45 North
One Mid America Place
Effingham, IL 62401

Dear Mr. Niebrugge:

The Customs Service has asked me to respond directly to your letter complaining about the Customs Service seizure of some spinner hubcaps that your company tried to import into the United States. I understand that Mid America Design, Inc. attempted to import a shipment of "spinner hubcaps" from Taiwan. These spinner hubcaps were seized by the U.S. Customs Service for failing to conform with the requirements of Federal Motor Vehicle Safety Standard No. 211, Wheel Nuts, Wheel Discs, and Hubcaps (49 CFR 571.211). You asked why our agency said that your company's imported "spinner hubcaps" do not comply with Standard No. 211, when comparable domestically produced items are permitted to be sold. For the last 20 years, it has been illegal to sell spinner hubcaps in the United States, regardless of where the spinner hubcaps were manufactured.

I have enclosed copies of my May 13, 1987 letter to the Honorable William E. Dannemeyer and my November 13, 1987 letter to Mr. William J. Maloney, your counsel in this matter. In these letters, I reaffirmed our interpretations from the past 20 years stating that spinner hub caps do not comply with the requirements of Standard No. 211, and have not complied with that Standard since it became effective on January 1, 1968. Section 108(a)(1)(A) of the National Traffic and Motor Vehicle Safety Act [15 U.S.C. 1397(a)(1)(A)] makes it illegal to "manufacture for sale, sell, offer for sale, or introduce or deliver for introduction in interstate commerce, or import into the United States" any hub caps that do not comply with Standard No. 211 (Emphasis added). Therefore, the U.S. Customs Service was enforcing the law properly when it seized the spinner hubcaps your company sought to import.

You also stated in your letter that spinner hubcaps are currently available in the United States, and enclosed some advertisements offering spinner hubcaps for sale. I would like to thank you for bringing this matter to our attention. We have referred this information to our enforcement staff for appropriate action.

If you have any further questions or need more information on the subject of spinner hubcaps and Standard No. 211, please feel free to contact Steve Kratzke of my staff at this address or by telephone at (202) 366-2992.

Sincerely,

Erika Z. Jones Chief Counsel

Enclosures

cc: Mr. Daniel C. Holland District Director of the Customs Service 909 First Avenue Seattle, Washington 98174

ref:211 d:3/18/88

ID: 2851o

The Honorable Don Montgomery
Senator, Twenty-First District
1218 Main
Sabetha, Kansas 66534-1835

Dear Mr. Montgomery:

Senator Kassebaum has asked me to respond to your February 12, 1988 letter to her. In your letter, you expressed concerns about a problem that has arisen in connection with using "van type buses designed to carry 10 or less passengers, without meeting all the requirements of a school bus." You state that there is a problem with using these vehicles to transport students because "federal law classifies the vans by weight and calls them twelve passenger vehicles, which calls for the van to meet all school bus regulations." As a solution, you suggest a change in Federal law might be appropriate to exempt the vehicles you describe "from the weight classification in determining how many passengers they would be capable of carrying."

As I understand your letter, there appears to be a misunderstanding about how Federal law operates with respect to school buses. There may also be a misunderstanding about whether it is a Federal or state definition that determines which vehicles may be used to transport school children in Kansas.

Under Federal regulations, there is no vehicle classification called "van." Instead, a passenger van is classified as either a "multipurpose passenger vehicle" (MPV) or a "bus," depending primarily upon its seating capacity. An MPV is a motor vehicle designed to carry a driver and 9 or fewer passengers, and either constructed on a truck chassis or equipped with features for off-road operation. A bus is a motor vehicle designed to carry a driver and 10 or more passengers.

Given these definitions, a van with 9 or fewer designated seating positions for passengers cannot, regardless of its weight or gross vehicle weight rating (GVWR), be a bus within the meaning of Federal law and regulation. (GVWR is the manufacturer's determination of a vehicle's loaded weight, i.e., the weight of the vehicle plus its designed capacity to carry people and cargo.) On the other hand, if a van is manufactured with 12 or 15 designated seating positions as you stated, then the vehicle is a bus. The number of passengers that such a van may actually carry on any given trip does not affect its classification as a bus.

If that vehicle is manufactured and sold to carry school children, then the vehicle is not just a bus, but a school bus. The National Traffic and Motor Vehicle Safety Act and regulations issued thereunder define a school bus in terms of (1) the vehicle's designed capacity for carrying people, and (2) the vehicle's intended use. More specifically, a school bus is a motor vehicle designed for carrying a driver and 10 or more passengers, and sold for transporting students to and from school or school-related events.

Gross vehicle weight rating (GVWR) is used in some safety standards to differentiate between smaller and larger school buses in the application of those standards. For example, Safety Standard No. 222, School bus passenger seating and crash protection, specifies one set of requirements for school buses with a GVWR of 10,000 pounds or less and another for those with a GVWR of greater than 10,000 pounds.

NHTSA's definition of school bus is used by the agency in regulating the manufacture and sale of new vehicles. New vehicles which are classified as school buses must meet the FMVSSs for school buses. A school bus manufacturer must certify that its vehicles meet all applicable Federal safety standards, and a commercial seller must sell only a complying vehicle as a school bus. Thus, a dealer who has a 12 or 15 passenger van that has not been certified as complying with the Federal school bus safety standards and sells that vehicle to a school district has, in all likelihood, violated the statutory prohibition against the sale of a noncomplying vehicle. (Title 49 of the Code of Federal Regulations (CFR) Part 571 contains the Federal safety standards applicable to school buses and other vehicles.)

However, this agency can not regulate the purchase or use of a vehicle, and consequently can not require a school district to purchase or use only those vehicles that comply with the Federal school bus safety standards. A State may do so by adopting appropriate vehicle definitions and requirements. To determine whether a local Kansas school district may purchase or use a noncomplying vehicle as a school bus, you must look to the laws of the State of Kansas, not the Federal laws and regulations.

On the other hand, I must emphasize NHTSA's position that a vehicle meeting Federal school bus regulations is the safest way to transport students, and encourage you to give this your most careful consideration.

I hope you find this information helpful. If you have further questions, please contact Joan Tilghman of my staff at this address or by telephone at (202) 366-2992.

Sincerely,

Erika Z. Jones Chief Counsel

cc: The Honorable Nancy Landon Kassebaum United States Senator Washington, DC 20515

ref:VSA#102#571 d:4/15/88

ID: 2852o

Mr. James T. Street
President
Street Specialty Products, Inc.
871 North Hanover Street
Pottstown, PA 19464

Dear Mr. Street:

This responds to your request for an interpretation of Standard No. 211, Wheel Nuts, Wheel Discs, and Hub Caps (49 CFR 571.211). Specifically, you sent me some product sheets showing several different designs of "spinner" hub caps, and asked whether you can market these items at both the wholesale and retail levels. The answer is no.

I have enclosed copies of my May 13, 1987, letter to the Honorable William E. Dannemeyer and my November 13, 1987, letter to Mr. William J. Maloney. In these letters, I reaffirmed our past interpretations stating that spinner hub caps do not comply with the requirements of Standard No. 211, and have not complied with that Standard since it became effective on January 1, 1968. Section 108(a)(1)(A) of the National Traffic and Motor Vehicle Safety Act [15 U.S.C. 1397(a)(1)(A)] makes it illegal to "manufacture for sale, sell, offer for sale, or introduce or deliver for introduction in interstate commerce, or import into the United States" any hub caps that do not comply with Standard No. 211 (Emphasis added). We would consider each sale or offer for sale of spinner hub caps to be a separate violation of this statutory provision. Section 109 of the Safety Act (15 U.S.C. 1398) specifies a civil penalty of up to $1000 for each violation of section 108(a), up to a maximum of $800,000.

I appreciate your efforts to ensure that your company does business in a way that complies with all our requirements. If you have any further questions or need more information on this subject, please feel free to contact Steve Kratzke of my staff at this address, or by telephone at (202) 366-2992.

Sincerely,

Erika Z. Jones Chief Counsel

Enclosures ref:211 d:3/l8/88

ID: 2852yy

Mr. William A. Batten
Eaton Corporation
Truck Components Operations
P.O. Box 4013
Kalamazoo, MI 49003

Dear Mr. Batten:

This responds to your letter and telephone conversation with Ms. Fujita of my staff concerning Federal Motor Vehicle Safety Standard (FMVSS) No. 124, Accelerator Control Systems. You asked about the standard's "applicable mileage requirement or time domain" for a truck with a gross vehicle weight rating greater than 10,000 pounds. You informed Ms. Fujita that, stated differently, your question is whether NHTSA requires a used vehicle to continue to meet an FMVSS, and if the answer is yes, for what mileage or amount of time the vehicle must meet the standard.

Generally speaking, the answer is no. NHTSA is authorized by the National Traffic and Motor Vehicle Safety Act (Safety Act) to regulate the manufacture and sale of new motor vehicles and motor vehicle equipment. The Safety Act requires a vehicle to comply with applicable FMVSS's until its first purchase in good faith for purposes other than resale.

However, you should be aware that manufacturers, distributors, dealers, or motor vehicle repair businesses modifying a vehicle (new or used) are prohibited by section l08(a)(2)(A) of the Safety Act from knowingly rendering inoperative any device or element of design installed on or in a motor vehicle in compliance with an applicable FMVSS. Thus, in the context of Standard No. l24, a person in the aforementioned categories is prohibited from rendering inoperative an accelerator control system that has been installed in compliance with that standard.

In addition, if the in-use deterioration of the performance of a vehicle or one of its components creates a safety risk, it could constitute a safety-related defect. Pursuant to sections l5l-l54 of the Safety Act, manufacturers are required to notify NHTSA and owners of such safety-related defects and to remedy such defects without charge. Thus, if the accelerator control systems on your vehicles deteriorate such that they no longer would comply with Standard No l24 and create an unsafe situation, that could be the basis for a defect determination, even though the vehicles met all applicable safety standards when they were new.

I also note that our sister agency in the Department, the Federal Highway Administration (FHWA), has operational and equipment requirements for trucks used in interstate commerce. If you are interested in that agency's requirements, you can write to them at the following address:

Office of Motor Carrier Standards Federal Highway Administration 400 Seventh Street, S.W. Washington, D.C. 20590

I hope this information is helpful.

Sincerely,

Paul Jackson Rice Chief Counsel

/ref:124#VSA d:3/4/9l

ID: 2853o

Mr. Leon Steenbock
Administrative Manager, Engineering
FWD Corporation
Clintonville, WI 54929-1590

Dear Mr. Steenbock,

This letter responds to your letter of last year asking whether it is permissible under Federal motor vehicle safety standard 124, Accelerator Control Systems (Standard 124), to install a locking hand throttle control in a new motor vehicle. I apologize for the delay in this response. The answer to your question is no.

While you do not describe what you mean by a "locking hand-throttle control" in your letter, I understood you to mean the following. Some vehicle design configurations have a hand-operated device on the steering column that connects to the throttle lever. In most design configurations, a driver may operate this device either by a turning or push-pull action. This device is commonly referred to as a "hand-throttle control."

These hand-throttle controls have two common applications. First, vehicles designed to be operated by physically disabled persons sometimes use a hand-throttle, rather than a foot-pedal, as the means for applying the actuating force that regulates the throttle valves and vehicle acceleration. Second, on some commercial vehicles, a hand-throttle control can be part of a system that allows a driver to use a hand control to regulate the engine fuel supply, and so to operate a power-driven accessory such as a generator while the vehicle is stationary with the transmission out of "drive." While the intended use of a hand-throttle control in a commercial vehicle may be only to power such an accessory, a driver still could use the throttle to control vehicle acceleration. Nothing in Standard 124 prohibits a manufacturer from installing a hand-throttle control in its vehicles.

Some hand-throttle controls have a mechanism that permits the driver to lock the throttle valves open in a position other than idle even after the driver removes the actuating force. When you asked about "locking hand-throttle controls," I understood you to be referring to this type of design.

These "locking hand throttle controls" are expressly prohibited by Standard 124. Paragraph S5.1 of that Standard requires that the throttle valves must be capable of returning to the idle position whenever the driver removes the actuating force. The purpose of Standard 124 is to minimize the risk of accident due to engine runaway. (37 FR 7097, April 8, 1972.) Consequently, a locking hand-throttle control would increase the risk of the very harm Standard 124 was adopted to address.

I hope you find this information helpful. If you have further questions, please feel free to contact Joan Tilghman of my staff at (202) 366-2992.

Sincerely,

Erika Z. Jones Chief Counsel

ref:124#571 d:3/17/88

ID: 2853yy

Lennard S. Loewentritt, Esq.
Deputy Associate General Counsel
Personal Property Division
General Services Administration
Washington, D.C. 20405

Dear Mr. Loewentritt:

This responds to your November 7, 1990 letter requesting further clarification with regard to my August 23, 1990 letter to you. 49 CFR 571.7(c) provides that Federal motor vehicle safety standards do not apply "to a vehicle or item of equipment manufactured for, and sold directly to, the Armed Forces of the United States in conformity with contractual specifications." In my August letter, I stated that school buses purchased by the General Services Administration (GSA) for the sole use of the Army would be considered to fall within this exception. This interpretation was based on the assumption that GSA acts as a purchasing agent for the Army, and that the buses were actually sold to the Army, albeit indirectly.

In your recent letter, you stated that this assumption was erroneous. While GSA's Automotive Center does act as a purchasing agent for some agencies, the vehicles in question would be purchased for the GSA's Interagency Fleet Management System (IFMS). Vehicles in the IFMS "are assigned on an indefinite basis to agencies that have had their fleets consolidated into the IFMS." You stated that the Army has consolidated their nontactical vehicles into the IFMS.

In this case then, the GSA would be purchasing buses which are intended for "indefinite assignment to and sole use by the Army for the purpose of transporting troops as well as transporting military dependents to and from school." You stated that these vehicles would be manufactured in conformity with contractual specifications "which reflect the requirements of the Federal Motor Vehicle Safety Standards for buses rather than school bus specifications." Given this clarification of GSA's role, you again asked if these buses would fall within the exception in 49 CFR 571.7(c).

The answer to your question would be yes, if the purchase contract specifies that the buses should not be certified as school buses in order to serve the needs of the Armed Forces. In these circumstances, we see no meaningful difference between a sale directly to an element of the Armed Forces and a sale to GSA's IFMS intended for exclusive and indefinite assignment to the Army. In announcing this conclusion, I want to make several points. In the interest of safety, I strongly recommend that the contract specify compliance with the substantive provisions of the Federal motor vehicle safety standards relating to school buses, except insofar as they are actually inconsistent with the intended use of the bus. Also, if reassignment of these buses to another agency is ever contemplated, I would appreciate your undertaking to ensure that they would only be used for transporting adults.

I hope this response is helpful. Please let me know if you have any further questions or need any additional information.

Sincerely,

Paul Jackson Rice Chief Counsel

ref:57l d:2/26/9l

ID: 2854o

Mr. Robert A. Rogers
Director, Automotive Safety Engineering
General Motors Corporation
General Motors Technical Center
30400 Mound Road
Warren, MI 48090-9015

Dear Mr. Rogers:

This responds to your recent letter seeking an interpretation of Standard No. 209, Seat Belt Assemblies (49 CFR 571.209). Specifically, you stated that you believe that Standard No. 209 does not specifically address remotely actuated emergency-locking retractors. You explained that you were referring to retractors that are actuated by a deceleration sensor that is located some distance from the retractor itself. You stated that the existing uncertainty discourages vehicle manufacturers from considering the introduction of this technology. Additionally, your letter claims that it is not clear whether the test procedures in Standard No. 209 are compatible with remote sensors. NHTSA does not agree that there are existing uncertainties with respect to the applicability of Standard No. 209 to remotely actuated retractors.

The agency first addressed this issue many years back. In a letter to Mr. Nakajima of Toyota, dated March 16, 1973 (copy enclosed), NHTSA explained that Standard No. 209 does address the issue of remotely actuated retractors. In that letter, we explained that both the remotely located sensor(s) and the individual solenoids, or other actuating devices on the retractor mechanism itself, would be considered seat belt assembly hardware for the purposes of Standard No. 209. All assembly hardware must be certified as complying with the requirements of S4.3 of Standard No. 209, including corrosion resistance and temperature resistance. This 1973 letter is still an accurate expression of the agency's opinion on this subject. Accordingly, there is no need to initiate rulemaking for Standard No. 209 to "ensure compatibility with the remotely actuated retractor concept."

If you have any further questions or need more information on this subject, please contact Steve Kratzke of my staff at this address or by telephone at (202) 366-2992.

Sincerely,

Erika Z. Jones Chief Counsel

Enclosure

ref:209 d:3/21/88

ID: 2854yy

Mr. Gene Schlanger
President
ROC Capital, Inc.
63 Greens Road
Hollywood, FL 33021

Dear Mr. Schlanger:

This is in reply to your FAX of January 3, l991, to Taylor Vinson of this Office, asking about the permissibility under Federal and State regulations of a "lighted sign" on which messages could be scrolled from left to right. Such a sign "is designed to be mounted inside the car, either on a rear or side window." However, "if that is deemed legally inappropriate, the sign can be designed to be placed outside on the roof of the auto." The sign would incorporate LEDs and would not project a beam or flash. You intend to sell it "to the general public."

The National Highway Traffic Safety Administration has no specific Federal motor vehicle safety standard that addresses your device, nor any prohibition against your selling it. The question arises, however, as to whether and under what circumstances Federal law may allow its use.

As a general rule, aftermarket equipment such as this is acceptable under Federal law provided that its installation by a manufacturer, distributor, dealer, or motor vehicle repair business, does not entail removal of, or otherwise rendering inoperative, in whole or in part, equipment installed in accordance with a Federal motor vehicle safety standard. This means that removal by any of the persons just mentioned of the high-mounted stop lamp that has been required on passenger cars manufactured on or after September 1, l985, in order to substitute your lighted sign, would be a violation of Federal law.

The question arises of whether the lighted sign may be installed in the rear window of any other vehicle, or in a passenger car manufactured before September 1, l985, or on the top of any vehicle, situations where there is no direct removal of safety equipment. The agency regards any impairment of the effectiveness of rear lighting equipment as tantamount to rendering it partially inoperative. Thus, if aftermarket equipment is likely to create confusion or distraction in a following motorist, we regard it as likely to impair the messages that required lighting equipment is supposed to impart. A lighted sign with a changing message is likely to create a distraction, diverting attention from signals sent by stop lamps or turn signal lamps. Thus, we believe that this device has the potential of rendering those lamps partially inoperative within the meaning of the statutory prohibition. Even when installed in a side window, where it may not be visible directly to the rear, the device has the potential of distraction when the vehicle carrying it is approached in other lanes, i.e., at an angle from the rear.

We are unable to tell you whether the device is illegal under the laws of each of the 50 States. If you are interested in pursuing this question, we recommend that you consult the American Association of Motor Vehicle Administrators, 4600 Wilson Boulevard, Arlington, Va. 22203.

Sincerely,

Paul Jackson Rice Chief Counsel

ref:l08 d:2/26/9l

ID: 2855o

Mr. Richard J. Matysiak
President
Auto Chek, Inc.
P.O. Box 258
Stone Mountain, GA 30086-0258

Dear Mr. Matysiak:

This responds to your letter to Mr. Frank Ephraim of our Office of Plans and Policy, asking about the effects of the Federal Motor Vehicle Theft Prevention Standard (49 CFR Part 541; copy enclosed) on certain body repair processes. Specifically, you asked how the theft prevention standard would affect the body repair process of "clipping" body sections from one vehicle and attaching the clipped section to a different vehicle. This repair process is not prohibited or regulated by the theft prevention standard, as explained below.

The purpose of the theft prevention standard is to reduce the incidence of motor vehicle thefts by facilitating the tracing and recovery of parts from stolen vehicles. To achieve this purpose, the theft prevention standard requires manufacturers to affix or inscribe identification markings onto 14 major original equipment and replacement parts of certain high theft cars. Dealers and repair shops are prohibited from removing, obliterating, tampering with, or altering these identification markings, unless the removal, obliteration, tampering, or alteration is reasonably necessary to repair the part or vehicle; see 18 U.S.C. 511.

These requirements should not significantly impact the repair process of "clipping" described in your letter. Nothing in the theft prevention standard or the law prohibits a repair shop from clipping sections from wrecked vehicles. The repair shop would be required by law to leave in place any identification markings on the "clipped" section that were not damaged in the "clipping" process.

As noted in your letter, the repaired vehicle might have two different vehicle identification numbers (VIN's) marked on its major parts, with some parts marked with the VIN assigned to the repaired vehicle and other parts marked with the VIN assigned to the damaged vehicle from which the section was "clipped." The Motor Vehicle Theft Law Enforcement Act of 1984, which ordered this agency to promulgate the theft prevention standard, clearly contemplates that vehicles undergoing repair could wind up with some parts numbered differently than the parts originally on the car. That law is based on the idea that some major parts are likely to survive a crash undamaged and that those parts can legitimately be used to repair other vehicles. Such repairs would naturally result in repaired cars having some parts numbered differently than the rest of the car. Since the law enforcement community vigorously supported this law, they must not have believed that cars with some parts numbered differently than the other parts of the car would pose particular problems for them.

You also asked how the "clipping" process would affect our disclosure and titling requirements. We answered the question of how the disclosure requirements apply in an October 15, 1980 letter to Mr. John Kelly of the Iowa Department of Transportation. In the letter to Mr. Kelly, we said, "... if a vehicle is constructed from the parts of several vehicles, the odometer statement must still be completed at the time of sale. If the seller knows the mileage on the various components used to construct the vehicle, he should inform the purchaser of the highest mileage that he knows, or the mileage on the chassis if he knows it. If he does not know the mileages, he will be required to state that the mileage is not accurate and should not be relied upon. Titling requirements and designations such as "salvage" and "rebuilt" vehicles are determined by State law, not Federal law.

If you have any further questions on this matter, please contact Steve Kratzke of my staff at this address, or by telephone at (202) 366-2992.

Sincerely,

Erika Z. Jones Chief Counsel

Enclosure

ref:541#580 d:3/30/88

ID: 2855yy

William J. Bethurum, Esq.
Patent Attorney
Jefferson Place - Suite 302
350 North Ninth Street
Boise, Idaho 83702

Dear Mr. Bethurum:

Your letter of December 14, 1990, to the "U.S. National Highway Safety Commission" for reply. Our agency, the National Highway Traffic Safety Administration, is the Federal agency responsible for establishing and enforcing the Federal motor vehicle safety standards.

Your client, Mr. E.D. Farnsworth, has asked about "when and how side lights adjacent to the main head lights came to be first used with head lights on automobiles." You have, in turn, asked to be apprised of the regulations which govern new headlamp designs for automobiles and other motor vehicles.

The Federal regulations that apply to motor vehicle headlamps are found in 49 C.F.R. 571.108, Federal Motor Vehicle Safety Standard No. l08, Lamps, Reflective Devices, and Associated Equipment. The current version of the CFR volume (Parts 400 to 999) containing that standard is updated to October 1, l990.

We are uncertain as to what you mean by "side lights adjacent to the main head lights". Standard No. l08 requires amber or white parking lamps on the front of passenger cars and other types of motor vehicles whose overall width is less than 80 inches, amber turn signal lamps, and amber front side marker lamps. Other types of lamps that are sometimes found on the front, and on the side at the front, are fog lamps and cornering lamps. They are not required by Standard No. l08, and are permissible as long as they do not impair the effectiveness of the lighting equipment required by the standard.

Standard No. l08, which has been in effect for passenger cars since January l, l969 (the mandatory requirement for a side marker lamp replaced the earlier provision giving manufacturers a choice of lamp or reflector effective January 1, l970), has always prescribed lamp location in general terms. Thus, parking lamps and headlamps are to be installed "at the front" and "as far apart as practicable" (Table IV of Standard No. l08). Similarly, turn signals are to be located "at or near the front" and "as far apart as practicable." Amber side marker lamps are to be on the side but placed "as far to the front as practicable." Because Standard No. l08 does not otherwise specify lamp location, we surmise that the head lamp and adjacent side lamp relationship to which you refer resulted from the choice of the vehicle manufacturer within the overall general parameters of the Federal specifications.

If you have further questions, we shall be pleased to answer them.

Sincerely,

Paul Jackson Rice Chief Counsel

ref:l08 d:2/26/9l