ID: 23498.ztv

Harry Zembillas, Esq.
Gasparis & Zembilla
301 South Main Street
Crown Point, IN 46307





Dear Mr. Zembillas:

This is in reply to your email of July 27, 2001. You have installed aftermarket all-clear taillamps on your 1995 Nissan Maxima, and report that you have been informed by a traffic officer that the lamps are illegal. You cite two Indiana statutes and state that "any help would be greatly appreciated."

You described the original rear lamps on your car as follows: "yellow plastic on the top outer edge, red plastic on the bottom outer edge, white/clear on the upper trunk lens, and red plastic on the bottom trunk lens." You informed us that you have now "installed clear outer lenses with amber bulbs on the top outer half and red bulbs on the bottom outer half." As you informed us, the lenses you bought are shown at www.autodynamic.com as replacements for original equipment on 1995-97 Nissan Maxima passenger cars, and we have downloaded a photo of the lamps you bought (see enclosed photo).

Under Federal law, lighting equipment on motor vehicles must be designed to comply with 49 CFR 571.108 Standard No. 108, Lamps, Reflective Devices, and Associated Equipment. The manufacturer of each vehicle must certify that the vehicle complies with all applicable Federal motor vehicle safety standards, including Standard No. 108. The original rear lighting configuration of the 1995 Maxima consisted of a combination lamp mounted on the body, with a red and amber lens, and a backup lamp and a second red-lensed lamp (or reflex reflector) mounted on the deck lid. The original body-mounted rear lamps on your car incorporated amber and red lenses to provide the amber and red colors required by Standard No. 108 to provide turn signal and stop/taillight functions. They may also have incorporated red reflex reflectors to comply with additional requirements of Standard No. 108 that a vehicle be equipped with red rear and rear side red reflex reflectors (see enclosed photo).

Paragraph S5.8.1 of Standard No. 108 specifies that "each lamp, reflective device, or item of associated equipment manufactured to replace any lamp, reflective device, or item of associated equipment on any vehicle to which [Standard No. 108] applies shall be designed to conform to this standard." This means that a replacement item must be designed to conform to the same standard to which the vehicle manufacturer certified compliance with the original equipment installed. The manufacturer of your Nissan designed its rear body-mounted lamp with a lens incorporating red reflex reflectors, a red lens, and an amber lens. You have replaced this with a lamp that is white instead of amber and red, and which does not incorporate red reflex reflectors. Therefore, the lamp fails to meet the requirement of S5.8.1 that replacement equipment be designed to conform to Standard No. 108. The sale of such a lamp or its installation by a manufacturer, dealer, distributor, or motor vehicle repair business is prohibited by Federal law, and several importers are currently recalling these types of lamps. However, whether it is legal to use a noncomplying item of replacement equipment such as this lamp is not a matter of Federal law but of State law, that is to say, the statutes of Indiana. I am sorry, but we do not provide interpretations of State laws.

Sincerely,

John Womack
Acting Chief Counsel

Enclosures
ref:108
d.3/1/02

ID: 23499.ztv

Mr. Galen Chen
Marketing Department
Maxzone Vehicle Lighting Corp.
5100 Walnut Grove Avenue
San Gabriel, CA 91776





Dear Mr. Chen:

This is in reply to your email of August 6, 2001. You wrote:

Some of the performance type corner lamps installed on cars are not street legal because of the white and clear color on them. Another word, they are lacking the amber color reflector. If these corner lamps are packaged with a reflector to be installed on the 2 side of the front bumper, can they be sold as street legal lamps?

We are uncertain what you mean by a "corner lamp;" no such lighting device is required or defined by Federal law. We surmise that the lamp to which you refer is one that is intended to replace a lamp that is original equipment on a motor vehicle, and that the original lamp incorporated an amber reflex reflector intended as a side reflex reflector mounted at the front side of a motor vehicle. The replacement lamp you refer to would not incorporate an amber reflex reflector but the package would include a separate amber reflector.

Federal Motor Vehicle Safety Standard No. 108, Lamps, Reflective Devices and Associated Equipment, establishes requirements for motor vehicle lighting and for replacement lighting equipment. All motor vehicles are required to be equipped with an amber reflex reflector located on the front side of a vehicle. For purposes of this interpretation, we shall assume that the reflex reflector pictured in the attachment to your email is one that is certified as conforming to Standard No. 108. The question your letter presents, then, is whether, whether a replacement lamp must incorporate all the functions of the original equipment lamp it is intended to replace..

Paragraph S5.8 of Standard No. 108, Replacement equipment, requires that "each lamp, reflective device, or item of associated equipment manufactured to replace any lamp, reflective device, or item of associated equipment on any vehicle to which [Standard No. 108] applies, shall be designed to conform to [Standard No. 108]. (S5.8.1).

We do not read this requirement as allowing a package containing a lamp and a separate conforming reflector, when the original equipment lamp and reflector comprised an integrated unit. If the original equipment lamp incorporated a reflex reflector designed to conform to Standard No. 108, then the replacement lamp must also incorporate a conforming reflex reflector in order to satisfy S5.8.

Sincerely,

John Womack
Acting Chief Counsel

ref:108
d.12/14/01

ID: 2349y

AIR MAIL

Mr. T. Chikada Manager, Automotive Lighting Engineering Control Dept. Stanley Electric Co., Ltd. 2-9-13, Nakameguro, Meguro-ku Tokyo 153, Japan

Re: Decorative Supplemental Lighting Devices Not Specified by Standard l08 (Motorcycles)

Dear Mr. Chikada:

This is in reply to your letter with respect to two types of decorative lighting devices intended for installation "on the rear face, and at the top of optional motorcycle rear trunks respectively." I regret the delay in responding.

Type A and Type B would be installed on the same motorcycle. Type A would be installed at the top of the trunk. It consists of an elongated device, illuminated by LEDs when the taillamp is on. Type B is installed on the motorcycle itself. It is a rectangular device, illuminated by an incandescent bulb, which is mounted on the vertical centerline and is flanked by the tail and stop lamps. The distance between the center of the light sources on the two devices is 290mm. (approximately ll 1/2 inches). Both devices emit red light, and their maximum intensity is less than the minimum intensity of the taillamp.

You have asked whether it is permitted to equip a motorcycle with the Type A and Type B accessory lamps. If the answer is affirmative, you have asked whether an LED could be used as the light source for Type B. You have also asked whether the maximum intensity of each device separately should be less than the minimum intensity of the tail lamp, or whether the combined maximum intensity of both devices should be less than the minimum intensity of the tail lamp.

Paragraph S5.1.3 of Federal Motor Vehicle Safety Standard No. l08 (formerly S4.1.3) permits the installation of these lamps if they do not impair the effectiveness of the lighting equipment required by the standard. In this instance, the question to be asked is whether the devices, activated with the taillamps, impair the effectiveness of the taillamps, or the stop lamps. The devices are, in effect, supplemental taillamps, and as such, arguably do not appear to impair the effectiveness of the taillamps required by the standard no matter what their intensity is.

The diagram of Type B indicates that the stop lamps and taillamps are in the same compartment, presumably incorporating a dual filament bulb. Although the stop lamps when activated are brighter than the taillamps, their proximity to the supplemental devices Type A and Type B, each of which are emitting a red light, leads to the possibility that the stop signal would not be as effective as it would be were there no other red lights in the vicinity, and hence impaired within the meaning of S5.1.3. A stop signal must be instantly perceived so that a following driver may determine appropriate action to take. However, we note that this configuration is similar to other stop/taillamp configurations on many vehicles in use on the highways. This would indicate that such configurations do not result in impairment. Thus, the answer to your first question is that both Types of devices are permitted under the standard.

Your second question is whether LEDs are acceptable light sources for Type B. Since there is no restriction on light sources for a lighting device not required by Standard No. l08, you may use the LEDs as light sources.

Your third question is whether the maximum intensity of Type A and Type B, separately, should be less than the minimum intensity of the taillamp. Even though Type A and Type B are optional devices, in the configuration depicted where Type B is immediately flanked on both sides by a taillamp, the appearance of the three lamps would be that of a multicompartment lamp, even though they may actually be separate. To help assure that impairment of either the taillamp or stop lamp does not occur, the intensity of Type B should be identical with that of the taillamps. Otherwise, observers may assume that Type B (which you intend to have an intensity less than a taillamp) is actually the taillamp, and the actual taillamps (which you intend to have an intensity greater than Type B) might appear to be stop lamps that are continually on. This would be deemed impairment since there would be three intensity levels, increasing the possibility of confusion of the intent of the lamps.

As for Type A, its vertical separation decreases the possibility for confusion. If the light sources are LEDs, the color would be a different shade of red that the stop and taillamps. Thus, the intensity is less important. However, it functions as an auxiliary taillamp and should be within the same intensity range as the original equipment taillamps. Finally, you asked whether the combined maximum intensity of both devices would be less than the minimum intensity of the taillamps. Again, this would create three levels of intensity, and could cause confusion in understanding the intent of the lamps. As noted above, the individual intensities should be similar to the intensity of the taillamps.

I hope that this answers your questions.

Sincerely,

Stephen P. Wood Acting Chief Counsel

/ ref:l08 d:3/20/90

ID: 2350y

Mr. Hank Kmiecik
Steerable Carriages
P.O. Box 211
Little York, NJ 08834

Dear Mr. Kmiecik:

This responds to your January 5, 1990 letter requesting our review of your rear wheel steering system for trucks, buses and special application vehicles. This system is intended to replace one rear axle on these vehicles, and when activated, enables the axle to rotate slightly on its vertical axis. It is intended to improve the maneuverability of these vehicles in low-speed situations such as making sharp turns.

During a February 9, 1990 telephone conversation with David Greenburg of this office, you explained that, while your product uses air from the vehicle's compressed air suspension system to operate the axle, it is isolated from the air brake system. You also explained that, as a result of this design, a failure in the air system connected to your product would not affect the operation of the vehicle's braking system.

By way of background information, NHTSA has no authority to approve, endorse or offer assurances of compliance for any motor vehicle or item of motor vehicle equipment. Instead, the National Traffic and Motor Vehicle Safety Act of 1966 makes manufacturers of motor vehicles or items of motor vehicle equipment responsible for certifying that each of its products conforms with all applicable safety standards.

In this instance, there are no specific provisions in the safety standards that set forth requirements for steerable rear axles. Thus, your company as the manufacturer of such a product would not have to certify that a steerable rear axle complies with any safety standard before offering it for sale to the public. However, the addition of a steerable rear axle to a vehicle before its first sale to the public could affect the vehicle's compliance with various safety standards. In such a case, the manufacturer or alterer that installed this product on a new vehicle would have to certify that the vehicle, with the steerable rear axle installed, complied with all applicable safety standards. For example, installation of the steerable axle could affect the vehicle's compliance with the applicable braking standard (Federal Motor Vehicle Safety Standard No. 121; Air brake systems) or the tire and rim selection standard (FMVSS No. 119; New pneumatic tires for vehicles other than passenger cars).

Of course, you will need to consider other safety effects that operation of the steerable axle system could have. Among these considerations would be ensuring that the trailer's gross axle weight rating (GAWR) is not exceeded when the steering system is in operation and the the trailer is supported by only the steerable axle instead of by both the steerable and fixed axles.

Although we do not have any standards that directly apply to your product, we do have several statutory provisions that could affect it. Manufacturers of motor vehicle equipment such as your steerable rear axle are subject to the requirements in sections 151-159 of the Vehicle Safety Act (15 U.S.C. 1411-1419) concerning the recall and remedy of products with defects related to motor vehicle safety. The Safety Act specifies that if either your company or this agency determines that a safety-related defect exists in your product, your company as the manufacturer must notify purchasers of the safety-related defect and must either:

(1) repair the parts so that the defect is removed; or

(2) replace the parts with identical or reasonably equivalent parts which do not have a defect.

Whichever of these options is chosen, the manufacturer must bear the full expense and cannot charge the owner for the remedy if the equipment was purchased less than 8 years before the notification campaign.

In addition, the use of your product could be affected by section 108(a)(2)(A) of the Vehicle Safety Act (15 U.S.C. 1397(a)(2)(A)). That section prohibits any manufacturer, dealer, distributor, or repair business from knowingly "rendering inoperative" any device or element of design installed on or in a vehicle to comply with an applicable safety standard. To avoid a "rendering inoperative" violation, the above-named parties should examine the proposed installation instructions for the steerable rear axle and compare those instructions with the requirements of our safety standards, to determine if installing the steerable rear axle in accordance with those instructions would result in the vehicle no longer complying with the requirements of the safety standards. If the installation of the steerable rear axle would not result in a rendering inoperative of the vehicle's compliance with the safety standards, the product can be installed by dealers, distributors, and repair shops without violating any Federal requirements.

The Safety Act places the initial responsibility for determining whether the installation of this steerable rear axle on vehicles would result in a "render inoperative" violation on your company. This agency may reexamine your determination in the context of an enforcement action. For your information, I have enclosed a copy of an information sheet for new manufacturers of motor vehicles and new motor vehicle equipment. This sheet gives a brief description of our regulations and explains how to obtain copies of those regulations. You should also be aware that State laws may apply to your product.

I hope this information is helpful. Please feel free to contact this office if you have any further questions or need additional information.

Sincerely,

Stephen P. Wood Acting Chief Counsel

Enclosure /ref:VSA d:3/l5/90

ID: 2351y

Mr. Satoshi Nishibori
Nissan Research & Development, Inc.
750 17th Street N.W., Suite 902
Washington, D.C. 20006

Dear Mr. Nishibori:

This responds to your January 16, 1990 letter to Mr. Robert Hellmuth, the Director of this agency's Office of Vehicle Safety Compliance, seeking an interpretation of Standard No. 120, Tire Selection and Rims for Motor Vehicles Other Than Passenger Cars (49 CFR 571.120). Specifically, S5.1.2 of Standard No. 120 provides that when a passenger car tire is used on vehicles other than passenger cars, the tire's load rating shall be reduced by dividing it by 1.10 before calculating the sum of the load ratings of all of the original equipment tires on the vehicle. S5.3.2 through S5.3.5 establish requirements for certain information about the tires and rims to be labeled on the vehicle. S5.3.2 sets forth lettering size and format requirements for the labeling. S5.3.3 through S5.3.5 require the labeling to provide the following information: the "size designation of tires....appropriate (as specified in S5.1.2) for the GAWR" be given on the label; the size and type designation of rims "appropriate for those tires", and the "cold inflation pressure for those tires".

Your question was whether the cold inflation pressure set forth on the label in response to S5.3.5 of Standard No. 120 must reflect the 1.1 reduction factor set forth in S5.1.2 for passenger car tires. You suggested in your letter, and in your January 18, 1990 meeting with agency staff, that S5.3.5 does not require the 1.1 reduction factor to be taken into account when determining the cold inflation pressure to be specified. Instead, you suggested that Standard No. 120 requires the vehicle manufacturer to specify an inflation pressure that is adequate to support the tire's share of the gross axle weight rating (GAWR), without regard to the 1.1 reduction factor. I cannot agree with your suggested interpretation.

You asserted that S5.3.5 merely requires the label to include the "cold inflation pressure for those tires," without referring to S5.1.2 and its 1.1 reduction factor. You contrasted this requirement with that in S5.3.3, which expressly refers to S5.1.2 and the 1.1 reduction factor. You asserted that this difference in wording showed that the 1.1 reduction factor need not be considered when specifying the cold inflation pressure on the label in response to S5.3.5. This argument is not persuasive.

The load-carrying capability of a tire generally varies with the inflation pressure of that tire; i.e., a tire can carry a greater load at a higher inflation pressure and a lesser load at a lower inflation pressure. Hence, a reference to inflation pressure alone, without any corresponding load-carrying capability to which that inflation pressure applies would be meaningless. If S5.3.5 of Standard No. 120 were interpreted to require the manufacturer to specify some inflation pressure, without regard to any load that must be borne by the tire at that inflation pressure, the vehicle manufacturer could specify an extremely high or low inflation pressure. Such a specification would be useless or even dangerous for the consumer, and contrary to the purposes of the labeling requirements.

You implicitly recognize that such an interpretation is unacceptable when you argue on page 1 of your January 16, 1990 that S5.3.5 of Standard No. 120 must be interpreted to require the manufacturer to recommend an inflation pressure "that will permit the tires to safely carry Gross Axle Weight Rating loads and will provide good vehicle ride characteristics." In other words, Nissan agrees that the inflation pressure specified in response to S5.3.5 cannot be an extreme value such as 1 psi; instead, it must be determined with reference to some load that the tires will carry.

The question then becomes what loading must be considered to determine if the specified inflation pressure complies with S5.3.5. This question is answered by reading the labeling requirement of S5.3.5 in connection with the other labeling requirements in S5.3, instead of considering S5.3.5 in a vacuum. S5.3.2 sets forth the format and lettering size for the labels to be placed on all vehicles manufactured on or after December 1, 1984. The information that must appear on such labels is set forth in S5.3.3, S5.3.4, and S5.3.5 of Standard No. 120. S5.3.3 specifies that the label shall include information on "the size designation of tires (not necessarily those on the vehicle) appropriate (as specified in S5.1.2) for the GAWR." (Emphasis added). On any reading of this emphasized language, it is beyond dispute that the 1.1 reduction factor set forth in S5.1.2 must be considered when specifying the appropriate tire size designation pursuant to S5.3.3. Following this, S5.3.4 requires information on the size and type designation of rims "appropriate for those tires" to appear on the label. The reference to "those" tires in S5.3.4 indicates that the tires are the tires previously specified in S5.3.3. Similarly, when S5.3.5 requires the cold inflation pressure for those tires to appear on the information label, the language is referring back to the tires specified in S5.3.3. Since NHTSA agrees with your statements that S5.3.3 incorporates the 1.1 reduction factor of S5.1.2 to determine compliance with S5.3.3, and since S5.3.5 refers to the tires specified in S5.3.3, the 1.1 reduction factor set forth in S5.1.2 must be considered to determine ocmpliance with S5.3.5 of Standard No. 120.

Sincerely,

Stephen P. Wood Acting Chief Counsel /ref:120 d:3/l5/90

ID: 2352y

Mr. T. Chikada
Manager, Automotive Engineering
Lighting Control Dept.
Stanley Electric Co. Ltd.
2-9-13, Nakameguro, Meguro-ku
Tokyo 153, Japan

Dear Mr. Chikada:

This is in reply to your letter of August 9, l989, to the former Chief Counsel, Erika Jones. You have asked for an interpretation of two of the amendments of May 9, 1989, to Federal Motor Vehicle Safety Standard No. l08. We have delayed answering you until action could be taken on petitions for reconsideration of the May 9 amendments. This action was taken on February 8, 1990 (copy of Federal Register notice enclosed), and the new amendments adopted then, effective March 12, l990, include definitions of "Direct reading indicator" and "Remote reading indicator."

Section S7.7.5.2(a)(l)(iii) states in pertinent part that each graduation on a Vehicle Headlamp Aiming Device (VHAD) "shall indicate a linear movement of the scale indicator of not less than 0.05 in. (1.27 mm) if a direct reading analog indicator is used," and "if a remote reading indicator is provided, it shall represent the actual aim movement in a clear, understandable format." Your letter depicts two devices identified as a "direct reading analog indicator" and a "remote reading indicator", and you ask for confirmation that each conforms with the requirements of the section.

Preliminarily, we observe that your drawings do not depict how the devices are determined to be "direct" and "remote". Our interpretation of your "direct indicator" is that the location of the bubble is proportional to the slope of the surface and the adjustment, i.e., as the angle of aim changes, so does the location of the bubble, and its location relative to the graduations changes in proportion to the angle of aim. Our interpretation of your "remote indicator" is that the location of the bubble represents the difference between the correct setting and the actual setting of the adjustment, and the reading may or mau not be proportional to the difference. Based on these interpretations, either device would appear to be capable of meeting the recently adopted definitions of direct and remote reading indicators.

For example, if either device were mounted in its entirety on the headlamp to sense vertical attitude, the devices would both appear to be capable of directly reading the aim of the headlap and also appear to be capable of accommodating variations in floor slope. In this case, each device would meet the definition of a "direct reading indicator". And if either device were mounted in whole or in part elsewhere than on the headlamp or its aiming or mounting equipment (e.g., mounted on the firewall, inner fender panel, instrument panel), and linked mechanically to the headlamp such that its vertical aim was correctly displayed on the indicator, each device would also appear to meet the definition of a "remote reading indicator".

Paragraph S7.7.2 requires in pertinent part that each headlamp aiming mechanism allow aim inspection and adjustment, and be accessible for such uses "without removal of vehicle parts, except for protective covers removable without the use of tools." You have asked whether the protective cover mentioned includes the cover to protect the spirit level when it is a component of the VHAD. The answer is no. The protective cover mentioned is one intended to shield the entire VHAD, or a cover that is not transparent and inhibits the proper aim inspection and adjustment. A transparent cover or transparent portions of a cover protecting the indicator (in your case, the spirit level of your direct reading indicator) is not required to be removable. However, if your remote reading indicator has a transparent protective cover, it would be required to be removable without the use of tools to gain access to the dial indicator, if the indicator is not adjustable with the cover in place.

I hope that this answers your questions.

Sincerely,

Stephen P. Wood Acting Chief Counsel

Enclosure ref:l08 d:3/l5/90

ID: 23532.ztv

Mr. Daniel Watt
280 Lindo Court
Unit A
Morgan Hill, CA 95037





Dear Mr. Watt:

This is in reply to your email of August 22, 2001, to Michael Cole of this agency.

You related having seen trucks using light emitting diodes (LEDs) instead of incandescent bulbs for their taillamps, and asked whether "red LEDs installed in place of a bulb [in] a clear taillight meet the color 'red' requirements. Or would that be a non-compliance because the housing was not certified for use with LEDs?"

Under Federal law, lighting equipment on motor vehicles must be designed to comply with 49 CFR 571.108 Standard No. 108, Lamps, Reflective Devices, and Associated Equipment. The manufacturer of the vehicle then certifies that the vehicle complies with all applicable Federal motor vehicle safety standards including Standard No. 108. The original rear lamps on the trucks that you saw were equipped with incandescent bulbs.

Paragraph S5.8.1 of Standard No. 108 specifies that "each lamp, reflective device, or item of associated equipment manufactured to replace any lamps, reflective device, or item of associated equipment on any vehicle to which [Standard No. 108] applies shall be designed to conform to this standard." This means that a replacement item must be designed to conform to the standard in the same manner as the vehicle manufacturer certified compliance with the original equipment installed. A rear replacement lamp equipped with LEDs would not be designed to conform to the standard in the same manner as the original equipment, and would therefore not comply with S5.8.1. Whether it is legal to use replacement equipment such as the LEDs on the public roads is not a matter of Federal law but of State law. We are not conversant with state laws and cannot advise you about this. You might want to contact the California Department of Highway Patrol for its views on this subject.

Substituting LEDs into a lamp that was designed to incorporate incandescent light sources raises safety concerns. An incandescent light source emits light when an electric current passes through a resistant metallic wire (filament). The position and shape of the filament, along with other design elements, define the unique electrical and photometric characteristics of the light source. Lamp designers incorporate these characteristics into the original optical design of the lamp. Thus, substitution of the original light source with one of a different design may negatively impact the photometric performance of a lamp below the minimum required for compliance with Standard No. 108. In addition, other functions required by Standard No. 108 may be affected by substitution of an LED, such as operation of the illuminated turn signal pilot indicator (S5.5.6).

Sincerely,

John Womack
Acting Chief Counsel

ref:108
d.2/4/02

ID: 2353y

Mr. Patrick J. Higgins
Andreini & Company
770 The City Drive South, Suite 1300
Orange, CA 92668

Dear Mr. Higgins:

This responds to your letter on behalf of Skill-Craft Enterprises, which is designing and manufacturing a fiberglass seat to be installed in the bed of a pickup truck. You were interested in learning which of the Federal motor vehicle safety standards would apply to this product. You indicated that you believed Standards No. 207, 209, 210, and "possibly 302" would apply to this seat.

I am enclosing a December 1, 1986 interpretation letter from this office to Mr. Scott Muirhead, which explains the application of NHTSA's safety standards and regulations to seats in the cargo bed of a pickup. You will see that this letter specifically addresses the applicability of Standards No. 207, 208, 209, and 210 to such seats. I am also enclosing an information sheet for new manufacturers that briefly describes our laws and regulations, and explains how to get copies of those laws and regulations.

You also asked whether Standard No. 302, Flammability of Interior Materials, would apply to your client's product. That standard applies only to new vehicles in areas located in the "occupant compartment air space," which the standard defines as "the space within the occupant compartment that normally contains refreshable air." I am enclosing a copy of a February 15, 1983 interpretation to Mr. H. Nakaya in which the agency explained that the determination of whether any particular area is within the "occupant compartment air space" turns on whether people can and do ride in the area in question. Given that your client's product is a seat, it is designed and intended so that people will ride in it. Hence, the area around the seat would be an area where people could and would ride, and would be considered within the "occupant compartment air space." Section S4.1 of Standard No. 302 expressly lists seat cushions, seat backs, and seat belts as items of equipment that must meet the flammability resistance requirements of section S4.3. Based on the above, we conclude that a seat installed as original equipment in the bed of a pickup would be required to comply with Standard No. 302.

If the seat will be sold exclusively as an item of aftermarket equipment, Standard No. 302 would not directly apply to it. Nevertheless, other Federal laws indirectly affect your client's manufacture and sale of such a seat in the aftermarket. Section 108(a)(2)(A) of the Act states: "No manufacturer, distributor, dealer, or motor vehicle repair business shall knowingly render inoperative ... 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 ..." This section requires manufacturers, distributors, dealers or motor vehicle repair businesses (i.e., any person holding him or herself out to the public as being in the business of repairing motor vehicles or motor vehicle equipment for compensation) to ensure that any aftermarket installations of additional equipment or vehicle modifications its addition would not negatively affect the compliance of any component or design on a vehicle with applicable Federal safety standards. Section 109 of the Act specifies a civil penalty of up to $1,000 for each violation of this "render inoperative" provision.

Your client should also be aware of an additional aspect of the Safety Act. As a manufacturer of motor vehicle equipment, your client is also subject to the requirements in sections 151-159 of the Safety Act concerning the recall and remedy of products with defects relating to motor vehicle safety. I have enclosed an information sheet that briefly describes those responsibilities. In the event that your client or NHTSA determines that the seats contain a safety related defect, it would be responsible for notifying purchasers of the defective equipment and remedying the problem free of charge.

If you have any further questions or need additional information on this subject, please feel free to contact Marvin Shaw of my staff at this address or by telephone at (202) 366-2992.

Sincerely,

Stephen P. Wood Acting Chief Counsel

Enclosures

/ref:302 d:2/l4/90

ID: 23544rack

Mr. Christopher P. Reilly
8657 Langholm Rd.
El Cajon, CA 92021





Dear Mr. Reilly:

This responds to your letter seeking information on regulations that govern the design, manufacture, installation and use of a cargo rack for SUVs. I regret the delay in responding.

You state that the cargo rack contains a 2 ft x 4 ft area elevated by posts at about the same height as the back of the rear seat. The cargo rack will attach to existing cargo tie downs located on the floor behind the rear seat. Items may be stored on the rack's main storage area or on shelves attached to the posts. Further, you indicate that storage of items in the rack's main area may block the view through the rear window and that you are concerned that items tied down in the rack may become loose in an accident and strike a passenger in the back of the head. Because you do not mention whether the cargo rack will be made available for installation as original equipment and/or marketed as an aftermarket product for installation on used vehicles, we will address both types of installations.

By way of background information, the National Highway Traffic Safety Administration (NHTSA) has the statutory authority to issue Federal motor vehicle safety standards (FMVSSs) applicable to new motor vehicles and new items of motor vehicle equipment. NHTSA, however, does not approve motor vehicles or motor vehicle equipment or pass on the compliance of a vehicle or item of equipment outside the context of an actual enforcement proceeding. Instead, Federal law establishes a self-certification system under which motor vehicle and equipment manufacturers themselves certify that their products comply with all applicable standards. The following represents our opinion regarding the applicability of our laws and standards to your product based on the facts set forth in your letter.

Installation in New Vehicles

A manufacturer of a new vehicle must certify that its vehicle meets all applicable Federal motor vehicle safety standards. Any person who manufactures or sells a new vehicle which does not conform to any safety standard is subject to civil penalties and recall action under our statute.

NHTSA has issued Standard No. 111, Rearview Mirrors, to establish performance and location requirements for rearview mirrors in each new motor vehicle. Under this standard, your cargo rack may or may not be permitted, depending on the particular vehicle in which the cargo rack would be installed. "Inside" rearview mirrors are required for "multipurpose passenger vehicles, trucks, and buses, other than school buses, with a GVWR [gross vehicle weight rating] of 4,536 kg or less," under one alternative of the standard (paragraph (a) of S6.1). If a vehicle manufacturer met Standard No. 111's requirements by way of an inside rearview mirror, a rack could not obstruct the view of the inside rearview mirror (i.e., the mirror must continue to provide the scope of view required by the standard). Inside rearview mirrors are not required for multipurpose passenger vehicles, trucks, and buses with a GVWR greater than 4,536 kg. The installation of your rack in those vehicles would not interfere with the operation of a required "inside" rearview mirror and thus would not create a noncompliance with Standard No. 111. However, the vehicles will continue to be subject to the other rearview mirror requirements of sections S6, S7 and S8 of Standard No. 111 and all other relevant requirements.

The vehicle manufacturer also needs to certify that the vehicle, with the installed cargo rack, conforms to other applicable FMVSSs, including FMVSS No. 201, Occupant Protection in Interior Impact, and No. 202, Head Restraints. I have enclosed an information sheet that describes how you can obtain copies of these and other FMVSSs. You should review the standards to see how they would affect the installation of the cargo rack in a new vehicle.

As an Aftermarket Item of Equipment

We would classify the cargo rack as an item of motor vehicle equipment regulated by NHTSA. Our statute defines "motor vehicle equipment" in 49 U.S. Code (U.S.C.) 30102(a)(7)(B) in relevant part as any system, part, or component "soldas an accessory or addition to a motor vehicle." An item of equipment is an accessory if it meets the following criteria:

a. A substantial portion of its expected uses are related to the operation or maintenance of motor vehicles; and

b. It is purchased or otherwise acquired, and principally used by ordinary users of motor vehicles

After reviewing your letter, we conclude that the cargo rack is an accessory. It was designed with the expectation that a substantial portion of its use will be with motor vehicles. Further, your description of the cargo rack makes it clear that the cargo rack is intended to be purchased and principally used by ordinary users of motor vehicles to store cargo inside the rear cargo area of the vehicle.

While a cargo rack is an item of motor vehicle equipment, NHTSA has not issued any FMVSSs establishing performance standards directly applicable to this product if it were sold directly to consumers for installation on used vehicles. However, the manufacturer is subject to the requirements of 49 U.S.C.30118-30120, which set forth the notification and remedy procedures for products with defects related to motor vehicle safety. Thus, if NHTSA or the manufacturer determines that the product contains a safety-related defect, the manufacturer is responsible for notifying purchasers of the defective equipment and for remedying the problem free of charge. (Note that this responsibility is borne by the vehicle manufacturer in cases in which the product is installed on a new vehicle by or with the express authorization of that vehicle manufacturer.)

The installation of a cargo rack by a commercial entity is also subject to other restrictions. Our statute at 49 U.S.C.30122 provides that a manufacturer, distributor, dealer, or vehicle repair business may not knowingly "make inoperative" any device or element of design installed on or in a motor vehicle in accordance with any FMVSS. Therefore, the cargo rack could not be installed by any of those entities if such use would adversely affect the capability of a vehicle to comply with the performance requirements of FMVSS No. 111, as well as the compliance of a vehicle with any other FMVSS. You should carefully review the FMVSSs to determine whether installation of your cargo rack would affect a vehicle's compliance with the standards. ⁽¹⁾

Finally, we agree with your concern that items tied down in the rack may become loose in a crash and strike vehicle occupants. It might be advisable to include in your design means to prevent occupants from being struck by flying cargo in crash situations.

States have the authority to regulate the use and licensing of vehicles operating within their jurisdictions and may have restrictions on cargo racks. Therefore, you should check with the Department of Motor Vehicles in any state in which the equipment will be sold or used.

I hope this information is helpful. For your further information, I am enclosing a fact sheet we prepared entitled Information for New Manufacturers of Motor Vehicles and Motor Vehicle Equipment. 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
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d.2/26/02






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¹ The "make inoperative" provision does not apply to equipment attached to or installed on or in a vehicle by the vehicle owner. However, NHTSA urges vehicle owners not to degrade the safety of any system or device on their vehicles.

ID: 2354y

Richard A. Kulics, Esq.
401 S. Woodward - Suite 370
Birmingham, MI 48009

Re: Request for Ruling Imported Vehicles - FTZ

Dear Mr. Kulics:

This is in reply to your letter of December 5, l989, to the attention of Taylor Vinson of this Office, on behalf of your clients Liphardt Associates and Pierre Enterprises, Inc.

You have informed us that Liphardt is an Independent Commercial Importer (ICI) under EPA regulations. The vehicles it imports are modified by Pierre. Both entities have the identical mailing address. This location is within a Foreign Trade Zone. You have also informed us that Liphardt/Pierre (L/Pe) will apply for status as a Registered Importer under 49 CFR Part 592. It is the practice of L/PE to transport its nonconforming vehicles directly from the vessel into the Zone, to perform conformance modifications in the Zone, and then file a consumption entry, post bond, and submit conformance documentation to DOT. After DOT and EPA have released the vehicle, it is delivered to its owner.

You have requested that L/Pe "be allowed to submit conformity packets to your agency prior to the submission of the consumption entry package, i.e., upon submission of the FTZ entry [transportation of the vehicle into the Zone], so that it may enter the vehicle as 'conforming.'" Under this plan, the current method of operation would remain much the same, except that L/Pe would prepare an HS-7 Declaration Form at the time the vehicle is transported into the Zone. This Form would be submitted to DOT along with a conformity package, for review and release, if appropriate. Then, when the actual consumption entry is filed, the vehicle would be entered as "conforming" merchandise. The purpose of this request "is to eliminate the costs associated with posting a special bond purely for DOT purposes", and to speed "up the process of importation, thus reducing the costs associated with storage." As you state, "What L/Pe proposes is that it be allowed to close out the obligation while the vehicle is still in the custody of the Customs Service."

In substantiation of your request, you have called our attention to certain provisions of l9 CFR Part l46 Foreign Trade Zones, specifically section 146.2 outlining the obligations of Customs' supervision, section 146.10 providing for examination of merchandise necessary to facilitate the proper administration of any law that Customs is authorized to enforce, and section 146.31 stating that admission of merchandise into a Zone is subject to the regulations of the Federal agency concerned.

Under the facts as stated in your letter, we have concluded that your clients must provide a DOT bond under the National Traffic and Motor Vehicle Safety Act of l966 (l5 U.S.C. 1381 et seq.), as amended by the Imported Vehicle Safety Compliance Act of l988 (P. L. 100-562), but that there is no legal reason why its obligations to DOT may not be satisfied before the conformed vehicle enters the customs territory of the United States.

As we understand it, the Foreign Trade Zone Act of l934 (l9 U.S.C. 81a et seq.) is intended to establish areas into which merchandise may be imported temporarily, "without being subject to the customs laws of the United States", before being sent "into customs territory of the United States" (section 81c(a)). A Zone therefore is a legal fiction established solely for the administration of customs laws. Section 2(a) of the l988 Act repealed the authority of the Customs Service over the importation of vehicles subject to the l966 Act. Accordingly, the new regulation governing the importation of nonconforming motor vehicles on and after January 31, l990, 49 CFR Part 591, is not a "customs law" (unlike the existing regulation which is a joint regulation with DOT that specifically applies to importation into the customs territory of the United States (19 CFR 12.80(b)).

In pertinent part, section 108(a)(1)(A) of the l966 Act (l5 U.S.C. 1397(a)(10(A)) prohibits the importation "into the United States" of nonconforming vehicles. Although a Zone is not generally considered customs territory, in this instance they are both within the United States, and an arrangement which defines the "United States" as comprising both customs territory and foreign trade zones has been upheld as valid (Klockner, Inc., v. United States (1984) 8 CIT 3, 590 F. Supp. 1266). Under section 108(c)(1) of the l966 Act, as amended (l5 U.S.C. 1397(c)(1)), a nonconforming vehicle "shall be refused entry into the United States" unless "an appropriate bond" has been furnished to ensure that the vehicle will be brought into conformity within a reasonable time after such importation."

Therefore, because 49 CFR Part 591 is not a "customs law", any distinction between a Zone and customs territory is legally irrelevant for purposes of the l966 Act. Further, because both a Zone and the customs territory are physically within the boundaries of the United States, an importation of a nonconforming vehicle into either a Zone or the customs territory requires an accompanying DOT conformance bond.

Nevertheless, the l988 Act does not impose any restrictions upon either DOT or your clients that prohibits them from entering conformed vehicles into customs territory. However, we see the procedure a bit differently than the one you discussed. The HS-7 Form and its accompanying bond must be completed not later than the admission of the vehicle into the Zone. Customs retains its role of sending these documents to DOT. When conformance work is completed, L/Pe provides certification to DOT. Because of the current low volume of nonconforming imports, we anticipate that our review will be completed within two weeks of receipt of the certification. If the certification is acceptable, the bond is released, and L/Pe may then enter the vehicle as no longer subject to DOT conformance regulations (or, as you express it, "conforming merchandise"). Thus, L/Pe will be able to close out its obligation while the vehicle remains in the custody of Customs, even though it is not freed from the bond requirement.

As a final comment on the time factor, we intend to require complete documentation only for the initial make, model, and model year (assuming that the initial submission is acceptable). Although L/Pe must keep verification records on each vehicle it conforms, certifications subsequent to an initial submission need not be accompanied by documents, and could be transmitted by FAX. As we see it, these simple certifications would not require extensive review, improving our ability to respond in a more timely manner.

Sincerely,

Stephen P. Wood Acting Chief Counsel

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