ID: GF004235

The Honorable Mike Crapo
United States Senate
Washington, DC 20510

Dear Senator Crapo:

Thank you for your letter regarding a November 18, 2002, final rule on tire safety information issued by the National Highway Traffic Safety Administration (NHTSA) pursuant to the Transportation Recall Enhancement, Accountability and Documentation Act (the TREAD Act).You were concerned that the agency had not responded to petitions for reconsideration of the rule and thus had not addressed questions about the rules application to trailer manufacturers.

We are pleased to inform you that on June 3, 2004, NHTSA responded to the petitions for reconsideration of the November 2002 final rule (69 FR 31306). Our response specifically clarified the labeling requirements for trailer manufacturers (the discussion can be found on page 31313 of the document, copy enclosed).This June 2004 final rule should answer all the questions and concerns of the trailer manufacturing industry.We note that the effective date for the final rule on tire safety information has been delayed until September 1, 2005.

If you or your constituents have any further questions regarding this rulemaking, you may contact Scott Brenner, Associate Administrator for External Affairs, at (202) 366-2566.

Sincerely,

Jacqueline Glassman
Chief Counsel

Enclosure
ref:110
d.6/25/04

ID: GF004373

Kelly A. Freeman, Esq.
Assistant General Counsel
Quantum Value Management, LLC
33 Bloomfield Hills Parkway, Suite 240
Bloomfield Hills, MI 48304

Dear Ms. Freeman:

This responds to your June 18, 2004, letter regarding a number of products assembled by subsidaries of your company. You believe that these products would not be classified as "motor vehicles" for the purposes of the Federal motor vehicle safety standards (FMVSS). As explained below, based on the information you provided, it is our opinion that two of the products are not motor vehicles for the purposes of our regulations. We are not taking a specific position with respect to the other products, but will identify the relevant factors that should be considered in making such determinations.

Title 49 U.S.C. Chapter 301 authorizes the National Highway Traffic Safety Administration (NHTSA) to prescribe Federal motor vehicle safety standards (FMVSSs) applicable to new motor vehicles and new items of motor vehicle equipment. Section 30102(a)(6) 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."

We have issued a number of interpretations of this language. We have stated that vehicles equipped with tracks, agricultural equipment, and other vehicles incapable of highway travel are not motor vehicles. We have also determined that certain vehicles designed and sold solely for off-road use (e.g. , airport runway vehicles and underground mining vehicles) are not motor vehicles, even if they may be operationally capable of highway travel. Finally, we have concluded that items of mobile construction equipment that use the highways only to move between job sites and that typically spend extended periods of time at a single site are not motor vehicles. However, we do consider vehicles that use the public roads on a necessary and recurring basis to be motor vehicles.

You asked about the following products:


• Three Manitex Boom Truck models of various tonnage (models 2601C, 2201 and 3500);
• One Manitex SkyCrane, LLC Remote, Telescoping Aerial Service Platform and Crane (Skyhoist model RTA120X);
• One Manitex SkyCrane, LLC (f/k/a Phoenix) Arial Crane;
• One Manitex SkyCrane, LLC Sponco Arial Ladder;
• One Noble Construction Equipment Rough Terrain Lift Truck;
• One Noble Construction Equipment Pull Scraper (model 417B); and,
• One Noble Construction Equipment Mobile Water Truck.

It is our opinion that two of the products, the Rough Terrain Lift Truck, and the Pull Scraper, are not motor vehicles. According to your letter, the Rough Terrain Lift Truck is designed to lift items such as brick, beams, building materials in uneven and rough surfaces, such as on construction sites where land has not been leveled. The Pull Scraper is used to clear and/or move earth on a large scale at a construction site. You also indicated that these products are transported to the job site and are not used on the public roads, even for relocation to a new work site. These products are not manufactured for use on the highways and are therefore not motor vehicles.

The other products appear to be ordinary heavy-duty trucks equipped with special apparatus. You indicated that these products are manufactured mainly for the construction industry and that although capable of being driven on public roads, such use is incidental and is for the purpose of moving the equipment from one worksite to another. You also stated that these products are typically left at a construction site for an extended period of time.

You further explained:

The boom trucks, telescoping aerial cranes and aerial ladders have outriggers that slide out horizontally and extend laterally from each side of the bed to stabilize the truck while the boom, crane or ladder (as the case may be) are in operation. They are manufactured for heavy-duty lifting and operation. The aerial platform and crane is a hydraulic crane with the capability of holding three people on its platform combined with heavy duty load-lifting. The boom trucks and aerial cranes are often used to lift large loads of brick, building trusses, steel beams, large signage, billboards and construction equipment, among other uses. . . . The water truck is used to decrease dust and assist in settling the earth, often following in the tracks of the pull scraper.

You also enclosed copies of a number of brochures.

We note that, as discussed in two enclosed letters, a March 21, 2001 letter to LeAnn Johnson-Koch, Esq. , and an October 20, 2003 letter to Michael Ogle, our current interpretations regarding mobile construction equipment are based on a court decision in 1978. Subsequent legal developments make the holding of that court decision open for reassessment. Moreover, some mobile construction equipment may be using the public roads with greater frequency than the equipment the court decided were not motor vehicles subject to our jurisdiction. At some point in the future, we may revisit the issue of whether certain mobile construction equipment should be considered motor vehicles. However, if we were to take such action, we would announce it publicly, and address such issues as what standards should apply to the vehicles and what effective date is appropriate.

As indicated earlier, your products (other than the Rough Terrain Lift Truck, and the Pull Scraper) appear to be ordinary heavy-duty trucks equipped with special apparatus. Moreover, in view of the apparatus and their potential common uses, it appears that some of the products might travel to and from different short-term jobs. This would be different than the mobile construction equipment that has generally been the subject of our previous interpretations, which would commonly be used for extended periods at construction sites. We do not have detailed information concerning the specific usage patterns of each of the products you ask about. Moreover, while we seek to be helpful in providing opinions about our statutes, we do not have the resources to provide a detailed review of the products of each company. We would think, however, that some of these items may be motor vehicles.

I hope you find this information helpful. If you have any other questions please contact Mr. George Feygin at (202) 366-2992.

Sincerely,

Jacqueline Glassman
Chief Counsel

Enclosures
ref:571
d.8/16/04

ID: GF004408

Mr. Michael Kastner
Director of Government Relations
National Truck Equipment Association
1300 19^th Street, NW, 5^th Floor
Washington, DC 20036-1609

Dear Mr. Kastner:

This is in response to your letter of June 22, 2004, in which you requested interpretation of certain vehicle labeling requirements in S4.3 of the Federal Motor Vehicle Safety Standard (FMVSS) No. 110, Tire Selection and Rims, as amended by a final rule that responded to petitions for reconsideration, published on June 3, 2004 (69 FR 31306).

S4.3 requires that each vehicle subject to the standard contain either a single vehicle placard with certain tire information, or a vehicle placard and a supplementary tire inflation pressure label, affixed to the drivers side B-pillar. S4.3(a) requires that each placard show vehicle "capacity weight" expressed as "The combined weight of occupants and cargo should never exceed XXX kilograms or XXX pounds."

In the context of dealers possibly installing additional equipment onto the vehicles, you ask whether alterations that result in even small changes in vehicle weight necessitate applying a new placard onto that vehicle. In some circumstances, a new placard would be needed.

Vehicle capacity weight is defined in FMVSS No. 110 as the rated cargo and luggage load plus 68 kilograms (150 pounds) times the vehicles designated seating capacity. As explained in an April 25, 2002, letter to Mr. Kenneth Conway, the term "rated cargo and luggage load" is not defined in our standards, but generally, it refers to the vehicle manufacturers determination of the cargo and luggage carrying capacity of the vehicle. As explained below, the vehicle capacity weight cannot exceed the difference between the Gross Vehicle Weight Rating (GVWR) specified by the manufacturer and the unloaded vehicle weight.

Under 49 CFR 567.4(g)(3), vehicle manufacturers cannot specify a GVWR that is less than the sum of the unloaded vehicle weight, rated cargo and luggage load, and 150 pounds times the vehicles designated seating capacity. That is, the GVWR must be equal to or greater than the unloaded vehicle weight plus the vehicle capacity weight.

"Unloaded vehicle weight" is defined in 49 CFR 571.3 as "the weight of a vehicle with maximum capacity of all fluids necessary for operation of the vehicle, but without cargo, occupants, or accessories that are ordinarily removed from the vehicle when they are not in use."

Under 49 U.S.C. 30112, a dealer may not sell vehicles or equipment that do not comply with applicable safety standards. Also, 49 U.S.C. 30122 prohibits dealers and certain other entities from "making inoperative, in whole or in part" any part of a device or element of design installed on or in a motor vehicle in compliance with an applicable motor vehicle safety standard. Accordingly, a dealer must replace the vehicle placard if, after the dealer installs additional equipment, the information required by S4.3(a) is no longer accurate.

In order to determine if the vehicle capacity weight has changed as a result of installing additional equipment, a dealer can subtract the unloaded weight of the vehicle (with any additional equipment installed by the dealer) from the GVWR. If the resulting vehicle capacity weight is below the amount stated on the placard, the dealer must replace the vehicle placard because the information required by S4.3(a) will no longer be accurate.

If the GVWR specified by the vehicle manufacturer is greater than the sum of the unloaded vehicle weight (prior to installation of additional equipment) and the vehicle capacity weight specified on the vehicle placard, then there may be instances where installation of small amounts of additional equipment would not diminish the vehicle capacity weight specified on the placard. That is, the difference between the GVWR and the new unloaded weight of the vehicle (with additional equipment installed by the dealer) would not be less than the vehicle capacity weight specified on the placard.

I hope you find this information helpful. If you have further questions, you may contact Mr. George Feygin of my staff at (202) 366-2992.

Sincerely,

Jacqueline Glassman
Chief Counsel

ref:110
d.9/30/04

ID: GF0044754

Mr. Russ Hunt
C/O Snider Tire Inc.
PO Box 16046
Greensboro, NC 27416-6046

Dear Mr. Hunt:

This is in response to your e-mail of July 13, 2004, in which you seek clarification of certain regulations pertaining to retreaded tires. Specifically, you ask whether it is permissible to remove or obscure certain information originally located on the sidewall of a medium truck tire during the retreading process.

By way of background, the National Highway Traffic Safety Administration (NHTSA) does not provide approvals of motor vehicles or motor vehicle equipment. Under 49 U.S.C. Chapter 301, manufacturers are required to certify that their vehicles and equipment meet applicable requirements. The issues raised by your letter are addressed below.

There is no FMVSS applicable to retreaded tires for vehicles other than passenger cars. However, 49 CFR 574.5 does require each tire sold in the United States, including retreaded medium truck tires, to be labeled with Tire Identification Number (TIN) in order to facilitate a recall in the event of a defect.

The DOT symbol located on the sidewall of a medium truck tire may either remain or be removed from that tire prior to retreading (see 574.5, enclosed).

With respect to other information located on the tire sidewall, including manufacturer name, ply rating, and maximum pressure, no regulation requires retreaded tires (for vehicles other than passenger cars) to show this information, and no regulation prohibits a retreader from removing this information.

I hope you find this information helpful. If you have further questions, you may contact Mr. George Feygin of my staff at (202) 366-2992.

Sincerely,

Jacqueline Glassman
Chief Counsel

Enclosure
ref 574
d.9/7/04

ID: GF004581

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

Dear Mr. Tinto:

This responds to your June 25, 2004, letter regarding this agencys Federal motor vehicle theft prevention standard (49 CFR Part 541), as amended by a final rule published on April 6, 2004 (69 FR 17960, Docket 12231; corrected on June 22, 2004 69 FR 34612).

You ask about the amendments made by the April 6, 2004, final rule to the standards parts marking requirements for light duty trucks (LDTs) with a gross vehicle weight rating (GVWR) of 6,000 pounds or less. For many years the standard required vehicle manufacturers to mark the major parts (parts listed in 49 CFR 541.5(a)) of "high theft" lines of passenger motor vehicles. (A high theft vehicle had or was likely to have had a theft rate greater than the median theft rate for a specified period for all new vehicles.) On April 6, 2004, the National Highway Traffic Safety Administration amended the standard to apply the parts marking requirement to: p assenger cars and Multipurpose Passenger Vehicles (MPVs) with theft rates lower than the median theft rate ("below-median theft rate"); and to LDTs with below-median theft rates that "have a majority of major parts interchangeable with those of" passenger cars and of MPVs with a GVWR of 6,000 pounds or less (49 CFR 541.3(a)(3))

.

You ask three questions concerning the provision about LDTs. We have restated those below, followed by our answers.

Question 1. Is our interpretation correct that parts marking is only required on LDTs if a "majority" of parts listed in [Section] 541.5(a) are interchangeable with passenger cars and/or MPVs? In cases where the LDT does have a "majority" of interchangeable [Section] 541.5(a) parts, all of the parts on the LDT listed in [Section] 541.5(a) are required to be marked, regardless as to whether the parts are one of the interchangeable parts.

Answer: As to the first part of your question, the standard applies to (a) high theft LDTs, and to (b) below-median theft rate LDTs if a majority of parts listed in Section 541.5(a) are interchangeable with passenger cars and/or MPVs. If a below-median theft rate LDT is subject to the standard because of the interchangeability of its major parts, all major parts must be marked, not just the interchangeable ones.

Question 2. Are we correct that LDTs with less than a "majority" of interchangeable [Section] 541.5(a) parts do not have to be parts marked? In other words, if an LDT has only one [Section] 541.5(a) part that is interchangeable with a passenger car or an MPV, then the LDT does not have to be parts marked; not even the one part that is interchangeable.

Answer: Our answer is yes, a below-median theft rate LDT that does not have a majority of major parts interchangeable with a passenger car or an MPV subject to parts marking is not subject to the parts marking requirements of the standard. Using your example, not even the one part has to be marked.

Question 3. What is the meaning of "majority," as used in the context of this rule? Websters dictionary defines "majority" as, "a number greater than half of a total." Based on this definition, Toyota believes a "majority of major parts" means that more than half of the LDTs applicable parts listed in [Section] 541.5(a) have to be interchangeable with either an MPV or a passenger car before the LDT is required to be parts marked. Thus, a manufacturer first has to count how many parts listed in [Section] 541.5(a) are present on the LDT, and would have to determine whether more than 50% of the existing [Section] 541.5(a) parts on the LDT are interchangeable to determine whether parts marking is required on the LDT.

Answer: We agree that, with respect to the requirements at issue, "majority" means a number greater than half of the total. Accordingly, a below-median theft rate LDT is subject to parts marking requirements if greater than one half of the major parts present on that vehicle are interchangeable with major parts of a passenger car or an MPV that is subject to parts marking requirements.

You used an example of an LDT that has a total of 10 parts listed in Section 541.5(a) and stated your understanding that the LDT would have to have at least 6 interchangeable parts with an MPV or passenger car before all 10 of the parts on the LDT are required to be parts marked. Your understanding is correct. You also stated, "If the [LDT] has 5 or less interchangeable parts, none of the ten parts on the [LDT] are required to be marked." That understanding is correct with regard to the LDT in this example with the 10 major parts.

I hope you find this information helpful. If you have any other questions, please contact Mr. Feygin at this address or by phone at (202) 366-2992.

Sincerely,

Jacqueline Glassman
Chief Counsel

ref:541
d.7/27/04

ID: GF004598

Mr. John L'Espoir
Enid Drill Systems, Inc.
4510 East Market Street
Enid, OK 73701-9686

Dear Mr. L'Espoir:

This responds to your facsimile of June 16 and your July 8 phone conversation with George Feygin of my staff, regarding certain water well drilling equipment that your company produces. In your letter, you ask whether the water well drilling equipment incorporating a tandem axle trailer design is subject to the antilock brake system (ABS) requirements set forth in Federal Motor Vehicle Safety Standard No. 121 (FMVSS No. 121). You requested and received our interpretation on a similar issue in 1999. Based on the previously submitted informational materials and your recent conversation with George Feygin, our answer is no, provided that the equipment you now intend to manufacture is indeed similar to the equipment for which you sought our earlier interpretation.

In your previous submission, you stated that your equipment is used off-road to drill water wells, and that some of your designs incorporate tandem axle and triple axle semi-trailers equipped with air brakes. During a recent phone conversation, you indicated that the drilling equipment now in question will be substantially similar in design and function to the equipment subject to the previous interpretation. Please note that our present interpretation extends only to the type of drilling equipment previously described in your 1999 interpretation request.

Chapter 301 of Title 49, U.S. Code (U.S.C.), hereinafter referred to as the Safety Act, authorizes the National Highway Traffic Safety Administration (NHTSA) to establish FMVSSs applicable to new motor vehicles and new items of motor vehicle equipment. Section 30102(a)(6) of 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.

In reviewing the information you have previously provided, it is our opinion that the water well drilling equipment is not a motor vehicle within the statutory definition. The water well drilling equipment is designed to be used primarily at off-road job sites and, although capable of being transported on-road from one job site to another, its on-road use is only incidental to the primary purpose for which they were manufactured. This contrasts with instances in which vehicles such as cement mixer trucks and dump trucks frequently use the public roads going to and from off-road job sites, but remain there for only a limited period of time. Such vehicles are considered motor vehicles for purposes of the Safety Act because their on-road use is more than merely incidental.

In view of the above discussion, your water well drilling equipment is not a motor vehicle and is therefore not required to comply with the FMVSSs, including the ABS requirements of Standard No. 121.

We note that our interpretations in this area are based in part on a court decision issued in 1978, addressing mobile construction equipment. Subsequent legal developments make the holding of that court decision open for reassessment. Moreover, some mobile construction equipment may be using the public roads with greater frequency than the equipment the court decided were not motor vehicles subject to our jurisdiction. At some point in the future, we may revisit the issue of whether certain equipment should be considered motor vehicles. However, if we were to take such action, we would announce it publicly, and address such issues as what standards should apply to the vehicles and what effective date is appropriate.

I hope you find this information helpful. If you have any other questions, please contact George Feygin of my staff at this address or by phone at (202) 366-2992.

Sincerely,

Jacqueline Glassman
Chief Counsel

ref:110
d.10/20/03

ID: GF004709

Mr. Paul Brooks
220 Rogers Street
Ulster Park, NY 12487

Dear Mr. Brooks:

This is in response to your e-mail of July 12, 2004, in which you ask several questions related to adhesive numbers designed to be affixed to tires. Specifically, you ask whether vehicle owners are permitted to affix large-print adhesive numbers onto the tire sidewalls of their vehicles. You also ask whether the manufacturer of this product would be subject to recall responsibilities.

You describe your large-print adhesive numbers as follows. The numbers, made from either rubber or vinyl and measuring one to three inches in size, would be affixed to the tire sidewalls by adhesive. This would enable vehicle operators to more clearly see the tire pressure information molded onto the tire sidewall or provided elsewhere on the vehicle. You intend to either provide vehicle owners with the correct tire pressure information for their vehicles or more likely, instruct them to consult appropriate information already on the vehicle. Based on the information you have provided, we understand that you intend to sell your large-print adhesive numbers to consumers but do not intend to participate in the installation or application of these adhesive numbers.

By way of background, the National Highway Traffic Safety Administration (NHTSA) issues FMVSSs applicable to the manufacture and sale of new motor vehicles and certain items of motor vehicle equipment. However, NHTSA does not provide approvals of motor vehicles or motor vehicle equipment. Under 49 U.S.C. Chapter 301, manufacturers are required to certify that their vehicles and equipment meet applicable requirements.

49 U.S.C. 30102(a)(7)(B) defines motor vehicle equipment as:

"any component manufactured or sold for replacement or improvement of a system, part, or component, or as an accessory or addition to a motor vehicle"

The large-print adhesive numbers described in your e-mail would be considered an item of motor vehicle equipment as defined in 49 U.S.C. 30102(a)(7)(B) because they are accessories to a motor vehicle. Because these numbers are an item of motor vehicle equipment, they would be subject to the notification and remedy (recall) provisions of 49 U.S.C. 30118-30120. Accordingly, if you or NHTSA determine that your product contains a safety-related defect, you will be responsible for notifying purchasers of the large-print adhesive numbers and remedying the problem free of charge.

Additionally, we note that vehicle owners themselves are not prohibited from affixing large-print adhesive numbers to the tire sidewalls of their vehicles. Generally, Federal law does not prohibit vehicle owners from modifying their own vehicles, even if the installation were to result in the vehicle no longer complying with applicable safety standards.

Finally, we note that S4.3 of the Federal motor vehicle safety standard (FMVSS) No. 110, requires that each vehicle subject to the standard be equipped with a placard which contains tire inflation and certain other information related to tire load limits and proper inflation levels for the safe operation of a motor vehicle. An improved version of this tire information placard will be required beginning September 1, 2005. Although it is not required by our standards, you may wish to advise vehicle owners to consult the tire information placard to find out the proper tire inflation pressure.

I hope you find this information helpful. If you have further questions, you may contact Mr. George Feygin of my staff at (202) 366-2992.

Sincerely,

Jacqueline Glassman
Chief Counsel

ref:110
d.8/27/04

ID: GF004887

Mr. Palmer Robeson
1832 Birch Road
McLean, VA 22101

Dear Mr. Robeson:

This is in response to your e-mail of June 14, 2004, and subsequent phone conversations with George Feygin of my staff regarding a "tire traction device" you have invented. You also provided a CD-ROM with additional information on the device and its intended use. You ask whether your invention is subject to any Federal Motor Vehicle Safety Standards (FMVSS) and other regulations. In short, there are no FMVSSs applicable to your device.

By way of background, the National Highway Traffic Safety Administration (NHTSA) issues FMVSSs applicable to the manufacture and sale of new motor vehicles and certain items of motor vehicle equipment. However, NHTSA does not provide approvals of motor vehicles or motor vehicle equipment. Under 49 U.S.C. Chapter 301, manufacturers are required to certify that their vehicles and equipment meet applicable requirements.

49 U.S.C. 30102(a)(7)(B) defines motor vehicle equipment as:

"any component manufactured or sold for replacement or improvement of a system, part, or component, or as an accessory or addition to a motor vehicle;"

According to your letter, the tire traction device is akin to "snow chains" that are attached to wheels in order to provide better traction. This device attaches to wheels in a similar fashion and is designed for the same purpose. Your traction device would be considered an item of motor vehicle equipment as defined in 49 U.S.C. 30102(a)(7)(B), because it is an accessory or addition to a motor vehicle.

There are no FMVSSs applicable to the traction device described in your letter. Nevertheless, as an item of motor vehicle equipment, it is subject to the notification and remedy (recall) provisions of 49 U.S.C. 30118-30120. If a manufacturer of your device or NHTSA determine that the product contains a safety-related defect, the manufacturer would be responsible for notifying purchasers of the defective item of motor vehicle equipment and remedying the problem free of charge.

Please be advised that some states regulate the use of snow chains and similar equipment. You may wish to contact appropriate state authorities to ascertain state regulations pertaining to your device.

Enclosed please find an information sheet for new manufacturers of motor vehicles and motor vehicle equipment. I hope you find this information helpful. If you have further questions, you may contact Mr. George Feygin of my staff at (202) 366-2992.

Sincerely,

Jacqueline Glassman
Chief Counsel

Enclosure
ref:110
d.8/30/04

ID: GF005146

Mr. Milo Plasil
Intertech
2629 Purdue Avenue
Los Angeles, CA 90064

Dear Mr. Plasil:

This responds to your e-mail to George Feygin of my staff in which you ask several questions regarding 49 CFR Part 555 (Part 555). Part 555 provides a means by which manufacturers of motor vehicles may obtain a temporary exemption from the National Highway Traffic Safety Administration (NHTSA) of certain motor vehicles from compliance with one or more Federal motor vehicle safety standards (FMVSSs) or with NHTSAs bumper standard.

You ask about complex fact scenarios. We have simplified and restated your questions as we have understood them, and follow each question with our answer.

1. Suppose a manufacturer builds vehicles from various new parts and subassemblies. Later, its Part 555 petition is granted. Can a vehicle assembled from the parts prior to the agencys grant of the Part 555 petition be entered into interstate commerce as "used," "demonstration" or "testing" vehicles?

A vehicle may be sold if it is covered by the Part 555 exemption, but the vehicle would have to meet all applicable FMVSSs (except to the extent exempted by the grant of the petition). The FMVSSs apply to the vehicle until the vehicles first purchase in good faith other than for resale. Calling a vehicle a "used," "demonstration" or "test" vehicle before the vehicles first purchase in good faith other than for resale does not make the vehicle "used" in NHTSAs view. The vehicle would be considered "new," and would have to meet the applicable FMVSSs when it is sold or introduced into interstate commence.

2. How can a U.S. manufacturer of vehicles described in Question 1, "register" and "license" them for testing on public roads prior to agencys decision on the Part 555 petition?

Under the pertinent portion of 49 U.S.C. 30112, "a person may not manufacture for sale, sell, offer for sale, introduce or deliver for introduction in interstate commerce, or import into the United States," any motor vehicle unless it complies with, and is certified as complying with, all applicable FMVSSs. Accordingly, test vehicles cannot be introduced into interstate commerce by being driven on public roads until they are certified in accordance with NHTSAs certification requirements for vehicle manufacturers (these requirements are attached to this letter).

3. If the petition for Part 555 exemption is granted, and the manufacturer sells less than the maximum of 2,500 vehicles in the first year of exemption, can this manufacturer sell more than 2,500 vehicles the second year if the two year total does not exceed 5,000 vehicles?

Carry-forward or carry-back credits are not permitted. If the manufacturer obtains a temporary exemption on grounds other than financial hardship (see 49 CFR 555.6 (b) through (d)), the number of exempted vehicles that can be sold is limited to 2,500 in any 12-month period. Accordingly, a manufacturer cannot sell more than 2,500 exempted vehicles in the second year of exemption, even if it sold less than 2,500 in the first year, and the two-year total is below 5,000.

If the manufacturer obtains a Part 555 exemption on financial hardship grounds, there is no limit on the number of exempted vehicles that can be sold. Note that under 555.6(a)(1)(v), to be eligible for a petition on financial hardship grounds the total number of motor vehicles produced by or on behalf of the petitioner in the 12-month period prior to filing the petition cannot exceed 10,000.

4. If the exemption is granted for 900 vehicles per year, and the manufacturer sells only 600 in the first year, can the manufacturer sell an extra 300 vehicles in the second year of exemption?

When the agency grants a petition for a Part 555 exemption, the agency generally does not specify the number of exempted vehicles that may be sold each year, so long as the number of exempted vehicles does not exceed 2,500 in any 12-month period. As stated in my answer to question 3, carry-forward credits are not permitted. As also explained in that answer, there are no limits on eligible manufacturers (manufacturing less than 10,000 vehicles in the past 12 months) exempted on financial hardship grounds.

5. If the petition for Part 555 exemption is granted, can the exempted manufacturer sell the same vehicle under a different name?Specifically, the manufacturer is uncertain as to the name of the vehicle. Must the application for exemption be name-specific?

Section 555.9(a) requires the manufacturer of exempted vehicles to submit to NHTSA a sample certification label that would appear on those vehicles (the relevant certification label requirements are attached). The certification labels must include the vehicle identification number (VIN). Under Part 565, the VIN must include the vehicle name. Because the VINs are name-specific, a mid-term change by the manufacturer of the exempted vehicles name would require that manufacturer to resubmit its sample certification label with a VIN that is formatted using the revised name. We note, of course, that a name change would have no affect on the maximum quantity of vehicles subject to the exemption.

6. The entity seeking exemption will initially assemble vehicles in the U.S. However, the same entity may later wish to import assembled vehicles from a foreign country. Are registered importers eligible for Part 555 exemptions? If so, may the same entity apply for a single exemption as an importer and a manufacturer?If not, must the foreign entity assembling these vehicles petition for a separate Part 555 exemption?

The exemption provisions in 49 U.S.C. 30113, implemented in Part 555, apply only to vehicle manufacturers. While a registered importer may file a Part 555 temporary exemption petition on behalf of a foreign manufacturer (if it acts in the capacity of the manufacturers agent in the United States), the agency will consider the circumstances of the manufacturer, and not the importer, in deciding on the petition (see 33 FR 14557, and an October 9, 1990 letter to Mr. William D. Rogers, copies enclosed).

7. How can the petitioner "reconcile possible honest differences of compliance interpretation, if they appear when the vehicles are selectively tested for compliance"?

Each of the FMVSSs specifies the test conditions and procedures that this agency will use to evaluate the performance of the vehicle or equipment being tested for compliance with the particular safety standard. Manufacturers are not required to test their products in the manner specified in the relevant FMVSS as their basis for certifying that the product complies with that standard. A manufacturer may choose any means of evaluating its products in order to determine, in good faith, that the vehicle or equipment will comply with the FMVSSs when tested by the agency according to the procedures specified in the standard. However, manufacturers often choose to follow the test conditions and procedures that NHTSA will use in conducting compliance testing.

NHTSA may ask a manufacturer to provide basis for its certification that the vehicle or equipment complies with the FMVSS. If in fact there is a noncompliance, a manufacturer would have to recall the product to bring it into compliance, at no charge to the customer. In addition, the manufacturer could be subject to civil penalties unless it can establish that it had no reason to know, despite exercising "reasonable care" in the design and manufacture of the product, that the product did not in fact comply with the safety standards (49 U.S.C. 30112(b)(2)(A)).

8. Does NHTSA have an entity that can inspect a prototype vehicle subject to the exemption petition in order to ensure that they are accurately described in the petition for exemption?

Our statute establishes a "self-certification" process under which each manufacturer is responsible for certifying that its products meet all applicable FMVSSs. NHTSA does not provide approvals of motor vehicles or motor vehicle equipment. Consistent with this statutory framework, NHTSA does not have an entity that inspects vehicles for compliance with our programs. Under 555.5(c), the knowing and willful submission of false, fictitious or fraudulent information will subject the petitioner to the civil and criminal penalties of 18 U.S.C. 1001.

9. How do I obtain information on NHTSA investigations pertaining to Land Rover Defender, model years 1993 to 1997?

Summary information on all NHTSA defect investigations since 1972 is available online at: http://www-odi.nhtsa.dot.gov/cars/problems/defect/defectsearch.cfm. If this database contains files pertaining to the vehicle in question, you may purchase copies of the investigation documents online.

If you have any other questions, please contact Mr. Feygin at this address or by phone at (202) 366-2992.

Sincerely,

Jacqueline Glassman
Chief Counsel

Enclosures
ref:555
d.12/9/04

ID: GF005156

Jack Sheehan, Managing Director
Adaptive Driving Alliance
4218 W. Electra Lane
Glendale, AZ 85310




Dear Mr. Sheehan:

This responds to your March 15, 2005, letter asking whether this agency would permit voluntary compliance with the requirements of a recently published final rule before the stated effective date.

On February 14, 2005, the National Highway Traffic Safety Administration (NHTSA) issued a final rule establishing a new process under which intermediate and final-stage manufacturers and alterers could obtain temporary exemptions from dynamic performance requirements (see 70 FR 7414). The final rule also amended the pass-through certification provisions. The preamble to the final rule states that the effective date for the amendments is September 1, 2006.

First, notwithstanding the effective date, the agency will accept temporary exemption petitions submitted before the September 1, 2006, because, in certain circumstances, this will enable the agency to consider the exemptions in an expeditious manner. We note, however, that the agencys review process will not be limited to 120 days (as indicated in 555.14) until the September 1, 2006, effective date. We further note that because a good faith effort to comply with applicable requirements is a prerequisite for a temporary exemption petition, the agency will not consider a petition unless it demonstrates that the petitioner has made reasonable efforts to comply with the applicable dynamic performance requirements (see 49 CFR Part 555.13(b)).

Second, parties affected by the February 14, 2005, final rule are not prohibited from voluntarily complying with the amended certification and documentation requirements in Parts 567 and 568 before the September 1, 2006, effective date.

Finally, we will address the application and the effective date of the new section 571.8(b) when we respond to the petitions for reconsideration of the February 14, 2005 document.

If you need further assistance, please contact George Feygin of my staff at this address or at (202) 366-2992.

Sincerely,

Jacqueline Glassman
Chief Counsel

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d.8/1/05