ID: 8259-4

Mr. Michael Love
Manager, Compliance
Porsche Cars North America, Inc.
100 West Liberty Street
Reno, Nevada 89501

Dear Mr. Love:

This responds to your request for an interpretation of Federal Motor Vehicle Safety Standards (FMVSS) No. 101; Controls and displays and No. 102; Transmission shift lever sequence, starter interlock, and transmission braking effect. I apologize for the delay in our response. You asked about the standards in connection with three options your company is considering for changing its "Tiptronic" automatic transmission system.

By way of background information, the National Highway Traffic Safety Administration (NHTSA) does not provide approvals of motor vehicles. Under the National Traffic and Motor Vehicle Safety Act, it is the responsibility of the manufacturer to ensure that its vehicles meet applicable requirements. The following represents our opinion based on the facts provided in your letter.

The current Tiptronic automatic transmission system can be described as follows:

The shift lever is located in the middle console, where it can be moved along either of two slots which are located essentially parallel to the longitudinal axis of the vehicle. The left slot (automatic function) is essentially the same as a conventional automatic transmission gear shift lever, with the following positions (in order): P R N D 3 2 1. At the D position (only) of the left slot, the gear shift lever can be transferred to the M (manual) position of the right slot (manual function). The right slot consists of the following positions (in order): + M -. When the gear shift lever is in the right slot, the driver can select a higher gear (+) or lower gear (-) by tapping the shift lever. The shift lever always returns to the "M" position after being tapped.

There are two gear position displays, one on the middle console and the other on the instrument panel. The middle console display, which is not illuminated, shows each of the 10 positions where the shift lever may be placed. It also shows the position which is selected. The display on the instrument panel, which is illuminated, has two columns which correspond to the slots on the middle console. However, while the left column (corresponding to the left slot or automatic function) shows the positions P R N D 3 2 1, the right column (corresponding to the right slot or manual function) shows the positions 4 3 2 1. In other words, the right column portion of the display shows the available gears and the actual gear selected rather than + M -. For both columns, the selected position or gear is indicated by an illuminated arrow.

In your letter to NHTSA, you indicate that Porsche is considering the following three options for modifying its system:

Option 1. The first proposed modification would eliminate the 3, 2 and 1 positions on the left (automatic) slot.

Option 2a. The second proposed modification would eliminate the 3, 2 and 1 positions on the left (automatic) slot and the + and - positions on the right (manual) slot. Gear selection in the manual mode would be accomplished not by the shift lever but by shift rocker switches on the steering wheel.

Option 2b) The third proposed modification would provide only one slot with the following positions (in order): P R N D M D. In the M position, gear selection would be accomplished by shift rocker switches on the steering wheel.

For each of the proposed modifications, the shift lever positions would be labeled on the middle console, in the same manner as the current system. Similarly, the middle console would not be illuminated. The instrument panel display would not change for any of the options.

You ask a number of questions concerning whether the Tiptronic system, as modified under options 1, 2a and 2b, would comply with Standards No. 101 and 102. The issues raised by your letter are addressed below.

I will begin by identifying the requirements of Standards No. 101 and No. 102 which are relevant to your questions. Section S3.1.4.1 of Standard No. 102 states:

Except as specified in S3.1.4.3, if the transmission shift lever sequence includes a park position, identification of shift lever positions, including the positions in relation to each other and the position selected, shall be displayed in view of the driver whenever any of the following conditions exist:

(a) The ignition is in a position where the transmission can be shifted.

(b) The transmission is not in park.

S3.1.4.4 states:

Effective September 23, 1991, all of the information required to be displayed by S3.1.4.1 or S3.1.4.2 shall be displayed in view of the driver in a single location. At the option of the manufacturer, redundant displays providing some or all of the information may be provided.

Standard No. 101 specifies requirements for the location, identification and illumination of automatic gear position indicators. Section S5.1 requires that gear position display must be visible to the driver under the conditions of S6. Section S5.3.1 and Table 2 of the standard together require that automatic gear position displays be illuminated whenever the ignition switch and/or the headlamps are activated. The entry in Table 2 concerning the automatic gear position display references Standard No. 102. In a April 2, 1989 letter to Porsche concerning the Tiptronic system, we concluded that, given the reference in Standard No. 101 to Standard No. 102, where multiple gear position displays are provided and one complies with Standard No. 102 and the others do not, the requirements of Standard No. 101 must be met for the display which complies with Standard No. 102.

With this background in mind, I will discuss the existing Tiptronic system and the three possible modifications. For the reasons discussed above and in our April 2, 1989 letter, while multiple gear position displays are permitted, one such display must comply with all of the relevant requirements of Standards No. 101 and No. 102. Since your console display is not illuminated, it would obviously not comply with Standard No. 101. I will therefore address your letter in the context of whether the instrument panel display meets the requirements of the two standards. I assume that the instrument panel is activated during the times specified by Standard No. 102.

Under section S3.1.4.1 of Standard No. 102, there must be a display of all of the shift lever positions in relation to each other, and there must be an indication of the position that the driver has selected. In our April 2, 1989 letter, we stated that your design has the following ten shift lever positions: P R N D 3 2 1 + M -. We noted that the right column of the alternative instrument panel displays identified in your letter showed either 4 3 2 1 or 4 3 M 2 1 instead of + M -. We concluded that if the instrument panel display was to be used to meet the requirements of Standard No. 102, it would be necessary for the display to show the 10 actual shift lever positions, including + M -.

Porsche evidently did not follow the opinion provided in that letter, since Porsche neither provided illumination for the console display nor showed the 10 actual shift lever positions, identified in our letter, on the instrument panel display. While we do not understand the reason for this decision by Porsche, we believe that one could reasonably argue that the + and - locations are not really shift lever "positions," since the shift lever cannot be left in those locations. Under this view, + M - could be seen as "one" shift lever position, which is represented on the instrument panel by 4 3 2 1. We would accept this as an alternative way of characterizing the current Tiptronic system, and are therefore not aware of any compliance problems.

I will now turn to the three possible modifications. Once again, since the non-illuminated console display would not meet the requirements of Standard No. 101, the relevant question is whether the instrument panel display meets the relevant requirements of Standards No. 101 and No. 102. A common problem for all three options would be that the instrument panel display retained from the original Tiptronic system would not correspond to the shift lever positions of the modified designs. This could be corrected for options 1 and 2a simply by deleting the 3 2 1 portion of the left column. A more complicated correction would be needed for option 2a, since the display would need to show the following positions in relation to each other: P R N D M D.

I have several other comments on your letter. You stated that for all three options, Porsche believes that it is not necessary to have the shift lever positions 3, 2 and 1, or to necessarily display those positions if selected automatically in the D position, as long as they as displayed when selected manually by use of the shift lever (in option 1) or shift rocker switch(es) (in options 2a and 2b). Porsche is correct that it is unnecessary to provide shift lever positions 3, 2 and 1. Moreover, to the extent that such shift lever positions are not provided but the gears are instead selected automatically in the D position or manually in the M position by tapping the shift lever or shift rocker switch, it is unnecessary to display the gears.

You also stated the following:

Porsche believes that under options 2a and 2b, both the shift lever and the shift rocker switch(es) would be considered as "shift levers" during the period when they are capable of changing the transmission position. The "shift lever position" would then be defined as the transmission position, or mode of operation, that was selected by manipulation of any combination of "shift levers." It follows then that identification of "shift lever position" would entail identifying the distinct transmission operating modes, in relation to each other and the specific mode selected. . . .

For options 2a and 2b, Porsche believes it is not necessary to illuminate the shift rocker switches, just as it is not necessary to illuminate the shift lever, under the provisions of FMVSS 101, as long as the display in the speedometer showing transmission position is illuminated.

We would not view the shift rocker switch(es) as shift levers under any circumstances. Instead, for the vehicle designs at issue, the lever provided on the middle console would be the only shift lever. When the shift lever is in the "M" position, the shift rocker switch(es) simply permit manual shifting that is akin to the automatic shifting that occurs when the shift lever is in the "D" position. The rocker switch(es) could not be used to shift the transmission to P, R or N. Under these circumstances, we view the rocker switch(es) as a control which is auxiliary to the shift lever and unregulated by Standard No. 102. I note that we might take a different position if the rocker switch(es) permitted the transmission to be shifted to P, R or N, since Standard No. 102 includes requirements to prevent shifting errors. I also note that Standard No. 101 does not require transmission shift levers or controls which are auxiliary to shift levers to be illuminated.

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

Sincerely,

John Womack Acting Chief Counsel

ref:101#102 d:5/17/94

ID: 8261

Mr. Joseph B. Gordon
Manager of Engineering
EIS Brake Parts
P.O. Box 1315
Berlin, CT 06037

Dear Mr. Gordon:

This is in reply to your letter of January 6, 1993, to Rich Van Iderstine of this agency. It has been forwarded to this office because you have, in essence, requested a legal opinion as to the acceptability of a product that your company is considering manufacturing. As you describe it, the product provides an intermittently blinking stop lamp function when the brake pedal is applied. You are concerned that such a device "might be confused with hazard warning lights", and that there may be "other problems/restrictions connected with its manufacture." You have asked for our advice.

Motor vehicle lighting in the United States is subject to both Federal and State requirements. The National Traffic and Motor Vehicle Safety Act (Safety Act) and Federal Motor Vehicle Safety Standard No. 108, Lamps, Reflective Devices, and Associated Equipment are the Federal requirements to which I refer.

Standard No. 108, which was issued under the authority of the Safety Act, prescribes requirements for stop lamps and other lamps that must be followed by the manufacturer of the vehicle, and met at the time the vehicle is sold by the dealer to its first owner. One of these requirements, set forth in S5.5.10(d) of the standard, requires stop lamps to be steady- burning. Because your product would create a flashing light, it could not be used as original equipment on a motor vehicle, whether installed by the manufacturer, or by the distributor or dealer after the vehicle has left the factory and before its first sale to a purchaser for purposes other than resale.

The Safety Act includes a provision which governs modifications to vehicles after their initial sale. This Act does not prohibit a vehicle owner from making modifications that affect compliance with Standard No. 108 (or any other Federal motor vehicle safety standard). Thus, a vehicle owner may install your product without violation of Federal requirements. However, we interpret the Safety Act as prohibiting the installation of such a product by a manufacturer, dealer, distributor, or motor vehicle repair business. Under section 108(a)(2)(A) of the Act (15 U.S.C. 1397(a)(2)(A)), these persons shall not "render inoperative, in whole or in part, any device or element of design installed in accordance with a Federal motor vehicle safety standard." In our view, this forbids the installation of equipment that would take a vehicle out of compliance with a Federal motor vehicle safety standard. However, the Act does not forbid the sale of componentry such as your product which creates a noncompliance once it is installed. In summary, under Federal law, any person may sell your device, but only a person other than a manufacturer, dealer, distributor, or motor vehicle repair business may install it.

We are unable to advise you as to whether the laws of any State prohibit the use of flashing stop lamps, and recommend that you consult the American Association of Motor Vehicle Administrators for an opinion. Its address is 4600 Wilson Boulevard, Arlington, Va. 22203.

Sincerely,

John Womack Acting Chief Counsel

ref:VSA#108 d:2/18/93

ID: 8262

Jay Lee, President
Pacific Agritrade Inc.
2601 Elliott Ave.
Suite 5139
Seattle, WA 98121

Dear Mr. Lee:

This responds to your January 14, 1993, letter asking for information on how to have an air bag you wish to import from Korea tested by the National Highway Traffic Safety Administration (NHTSA).

I am pleased to have this opportunity to explain our laws and regulations to you. NHTSA is authorized under the National Traffic and Motor Vehicle Safety Act (15 U.S.C. 1381 et seq.; Safety Act) to issue motor vehicle safety standards that apply to the manufacture and sale of new motor vehicles and new items of motor vehicle equipment. NHTSA, however, does not approve motor vehicles or motor vehicle equipment, nor do we endorse any commercial products or conduct pre-sale testing of any commercial products. Instead, the Safety Act establishes a "self-certification" process under which each manufacturer is responsible for certifying that its products meet all applicable safety standards. I note that the term "manufacturer" is defined by section 102(5) of the Safety Act to mean "any person engaged in the manufacturing or assembling of motor vehicles or motor vehicle equipment, including any person importing motor vehicles or motor vehicle equipment for resale." (Emphasis added.)

NHTSA has exercised its authority under the Safety Act to establish Standard No. 208, Occupant Crash Protection (49 CFR 571.208). Standard No. 208 requires, among other things, that passenger cars provide automatic crash protection. Light trucks will also be required to provide automatic crash protection beginning with the 1995 model year. Vehicles equipped with automatic crash protection protect their occupants by means that require no action by vehicle occupants. Compliance with the automatic crash protection requirements of Standard No. 208 is determined in a dynamic crash test. That is, a vehicle must comply with specified injury criteria, as measured on a test dummy, when tested by this agency in a 30 mph barrier crash test.

At this time, manufacturers are not required to use a specific method of automatic crash protection to meet the requirements of Standard No. 208. Instead, each automobile manufacturer is allowed to select the particular method for the automatic crash protection installed in its vehicles. The two types of automatic crash protection currently offered on new passenger cars are automatic safety belts (which help to assure belt use) and air bags (which supplement safety belts and offer some protection even when safety belts are not used).

Please note that the automatic crash protection requirement applies to the performance of the vehicle as a whole, instead of setting requirements for the air bag as an individual item of equipment. This approach permits vehicle manufacturers to "tune" the performance of the air bag to the crash pulse and other specific attributes of each of their vehicle models. However, this approach also means that the Federal standards do not specify specific performance attributes for air bags such as inflated dimensions, actuation time, and the like.

It is unclear from your letter if the air bags you wish to import will be sold to manufacturers for installation in new vehicles or if the air bags will be sold as replacement air bags or retrofit air bags for vehicles which do not have air bags as original equipment. If the air bags are sold to manufacturers for installation in new vehicles, the vehicle manufacturer is required to certify that the vehicle complies with all applicable safety standards, including Standard No. 208. If the air bag is added to a previously certified new motor vehicle prior to its first sale, the person who modifies the vehicle would be an alterer of a previously certified motor vehicle and would be required to certify that, as altered, the vehicle continues to comply with all of the safety standards affected by the installation of the air bag. (See 49 CFR Part 567.7.)

While most of Standard No. 208's requirements are expressed in terms of the performance of the vehicle as a whole and apply only to new vehicles and not to aftermarket equipment, there is one exception to this. Pressure vessels and explosive devices for use in air bag systems must comply with section S9 of Standard No. 208 whether they are part of a new motor vehicle or are aftermarket equipment. Therefore, the manufacturer of these items must certify that they comply with the requirements of S9 of Standard No. 208.

Another Federal requirement that would affect the device if it were installed in a used vehicle, either as a replacement or retrofit air bag, is the "render inoperative" prohibition in section 108(a)(2)(A) of the Safety Act (15 U.S.C. 1397(a)(2)(A)) would apply. That section provides that:

No manufacturer, distributor, dealer, or motor vehicle repair business shall knowingly render inoperative, in whole or in part, any device or element of design installed on or in a motor vehicle ... in compliance with an applicable Federal motor vehicle safety standard.

The "render inoperative" provision would prohibit a commercial business from installing an aftermarket air bag in a manner that would negatively affect the vehicle's compliance with Standard No. 208.

You should also note that a replacement or retrofit air bag would be considered "motor vehicle equipment" within the meaning of the Safety Act. Therefore, if the air bag contained a defect (either in manufacture, design, or performance) that relates to motor vehicle safety, the manufacturer would be required to conduct a recall campaign to notify owners and to remedy the defect free of charge. You should be aware that recently the manufacturer of an aftermarket air bag that did not provide crash protection benefits to vehicle occupants ceased offering its air bags following a NHTSA investigation. In addition, NHTSA provided information to the Federal Trade Commission concerning the claims made by the manufacturer in its advertising. We suggest you carefully review the manufacturer's test data on the devices you are considering importing to assure yourself that the air bag would afford adequate protection to vehicle occupants in crashes and that the claims made in the company's advertising are true.

I have enclosed an information sheet that identifies relevant Federal statutes and NHTSA standards and regulations affecting motor vehicle and motor vehicle equipment manufacturers, and explains how to obtain copies of these materials.

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

Sincerely,

John Womack Acting Chief Counsel

Enclosure

ref:VSA#208 d:3/26/93

ID: 8263

Mr. Steven C. Friedman
Director of New Product Development
Saddleman, Inc.
P.O. Box 3656
80 West 900 South
Logan, UT 84323-3656

Dear Mr. Friedman:

This responds to your January 19, 1993, letter asking for information on any Federal motor vehicle safety standards applicable to retrofit air bags. Your letter states that these devices are intended for vehicles which do not have factory-installed air bags.

I am pleased to have this opportunity to explain our laws and regulations to you. The National Traffic and Motor Vehicle Safety Act (the Safety Act; 15 U.S.C. 1381 et seq.) authorizes this agency to issue Federal motor vehicle safety standards applicable to new motor vehicles and new items of motor vehicle equipment. NHTSA has exercised this authority to establish Standard No. 208, Occupant Crash Protection (49 CFR 571.208). Standard No. 208 requires, among other things, that passenger cars provide automatic crash protection. Light trucks will also be required to provide automatic crash protection beginning with the 1995 model year. Vehicles equipped with automatic crash protection protect their occupants by means that require no action by vehicle occupants. Compliance with the automatic crash protection requirements of Standard No. 208 is determined in a dynamic crash test. That is, a vehicle must comply with specified injury criteria, as measured on a test dummy, when tested by this agency in a 30 mph barrier crash test.

At this time, manufacturers are not required to use a specific method of automatic crash protection to meet the requirements of Standard No. 208. Instead, each automobile manufacturer is allowed to select the particular method for the automatic crash protection installed in its vehicles. The two types of automatic crash protection currently offered on new passenger cars are automatic safety belts (which help to assure belt use) and air bags (which supplement safety belts and offer some protection even when safety belts are not used).

Please note that the automatic crash protection requirement applies to the performance of the vehicle as a whole, instead of setting requirements for the air bag as an individual item of equipment. This approach permits vehicle manufacturers to "tune" the performance of the air bag to the crash pulse and other specific attributes of each of their vehicle models. However, this approach also means that the Federal standards do not specify specific performance attributes for air bags such as inflated dimensions, actuation time, and the like.

While most of Standard No. 208's requirements are expressed in terms of the performance of the vehicle as a whole and apply only to new vehicles and not to aftermarket equipment, there is one exception to this. Pressure vessels and explosive devices for use in air bag systems must comply with section S9 of Standard No. 208 whether they are part of a new motor vehicle or are aftermarket equipment. Therefore, the manufacturer of these items must certify that they comply with the requirements of S9 of Standard No. 208.

Another Federal requirement that would affect a retrofit air bag is the "render inoperative" prohibition in section 108(a)(2)(A) of the Safety Act (15 U.S.C. 1397(a)(2)(A)). That section provides that:

No manufacturer, distributor, dealer, or motor vehicle repair business shall knowingly render inoperative, in whole or in part, any device or element of design installed on or in a motor vehicle ... in compliance with an applicable Federal motor vehicle safety standard.

The "render inoperative" provision would prohibit a commercial business from installing an aftermarket air bag in a manner that would negatively affect the vehicle's compliance with Standard No. 208 or any other safety standard.

You should also note that a replacement or retrofit air bag would be considered "motor vehicle equipment" within the meaning of the Safety Act. Therefore, if the air bag contained a defect (either in manufacture, design, or performance) that relates to motor vehicle safety, the manufacturer would be required to conduct a recall campaign to notify owners and to remedy the defect free of charge. Please note that recently a manufacturer of an aftermarket air bag that did not provide any crash protection benefits to vehicle occupants recalled its air bags following a NHTSA investigation. In addition, NHTSA provided information to the Federal Trade Commission concerning the claims made by the manufacturer in its advertising. We suggest you carefully review the test data on the devices you are considering importing to assure yourself that the air bag would afford adequate protection to vehicle occupants in crashes and that the claims made in the company's advertising are true.

I also note that, based on the product information you provided with your letter, NHTSA technical staff raised possible concerns about the air bag you are considering importing. The design differs from other air bags in two significant ways. First, while the crash sensor for air bag systems is normally located in the vehicle structure, yours is not. Second, while air bags generally are released toward the driver's chest from the steering wheel, your air bag would be released from above toward the driver's face and chest.

For driver crash protection, the crash sensor of an air bag system must initiate deployment of the air bag early enough in a crash to position the inflated air bag between the driver and the steering wheel in time to cushion the impact. At the same time, it must not be so sensitive that it deploys the air bag in non-crash situations. Given the ways in which the crash sensor of your system differs from other air bag systems, our technical staff questions whether it is possible for it to initiate deployment early enough in a crash to provide occupant protection yet not be so sensitive that it deploys the air bag in non-crash situations. In addition, while the inadvertent deployment of any air bag system would raise safety concerns, the location of your air bag would increase those concerns, since it would appear to interfere with the driver's forward vision even after deflation.

I have enclosed an information sheet that identifies relevant Federal statutes and NHTSA standards and regulations affecting motor vehicle and motor vehicle equipment manufacturers, and explains how to get copies of these materials.

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

Sincerely,

John Womack Acting Chief Counsel

Enclosure ref:VSA#208 d:3/26/93

ID: 8268

Mr. Jeff Gerner
Product Engineering Manager
Banner Welder, Inc.
N117 W18200 Fulton Drive
Germantown, WI 53022

Dear Mr. Gerner:

This responds to your inquiry about whether the mobile screening and shredding equipment that you manufacture would have to comply with Federal Motor Vehicle Safety Standard No. 121, Air Brake Systems. In a telephone conversation with Mr. Marvin Shaw of my staff, you explained that your equipment is designed to be used primarily in off-road environments such as compost sites similar to landfills, but may be towed over the public roads to multiple sites. You stated that most purchasers of your equipment use it at an off-road site for extended time periods, but occasionally the equipment will be moved from one off-road to another off-road site on a more frequent basis. You stated that it would be inconvenient for your equipment to comply with Standard No. 121's emergency braking requirements because a truck with an air brake system would be needed at all times to move your equipment. I am pleased to have this opportunity to explain our regulations to you.

By way of background information, this agency interprets and enforces the National Traffic and Motor Vehicle Safety Act under which the Federal Motor Vehicle Safety Standards are promulgated. The Act defines the term "motor vehicle" as follows:

"any vehicle driven or drawn by mechanical power manufactured primarily for use on the public streets, roads, and highways, except any vehicle operated exclusively on a rail or rails."

If a vehicle is a motor vehicle under the definition, then the vehicle must comply with all applicable Federal motor vehicle safety standards. However, if a vehicle is not a motor vehicle under this definition, then the vehicle need not comply with the agency's safety standards because such a vehicle is outside the agency's scope of authority. Whether the agency will consider a construction vehicle, or similar equipment, to be a motor vehicle depends on its use. It is the agency's position that this statutory definition does not encompass mobile construction equipment, such as cranes and scrapers, which use the highway only to move between job sites and which typically spend extended periods of time at a single job site. In such cases, the on-highway use of the vehicle is merely incidental and is not the primary purpose for which the vehicle was manufactured. In instances where vehicles, such as dump trucks, frequently use the highway going to and from job sites, and stay at a job site for only a limited time, such vehicles are considered motor vehicles for purposes of the Safety Act, since the on-highway use is more than "incidental."

Based on the literature provided in your letter and the subsequent telephone conversation, the agency believes that the on-highway use of your equipment is merely incidental and not the primary purpose for which they were manufactured. Accordingly, it appears that your mobile screener and shredder are not "motor vehicles" within the meaning of the Safety Act. Therefore, they would not be subject to the Federal Motor Vehicle Safety Standards.

This conclusion is based on the assumption that your equipment generally spends extended periods of time at a single construction site and only uses the public roads infrequently to move between job sites. We note that while your letter stated that your equipment may be moved "daily or weekly" on the public roads to other sites, you stated in the telephone conversation that such frequent movement is rare and that this equipment is primarily for off-road purposes. The agency would reconsider this determination if it obtained information indicating that the equipment's on-highway use is more than "incidental."

I hope this information is helpful. If you have any further questions about NHTSA's safety standards, please feel free to contact Marvin Shaw of my staff at this address or by telephone at (202) 366-2992.

Sincerely,

John Womack Acting Chief Counsel

ref:VSA d:4/26/93

ID: 8280

Joseph S. Kaplan, Esq.
Ross & Hardies
65 East 55th Street
New York, NY 10022-3219

Re: Request for a Legal Interpretation New Flyer Industries, Ltd.

Dear Mr. Kaplan:

This is in reply to your letter of January 29, 1993, requesting an interpretation of 49 CFR 591.5(e) as it relates to the products of your client, New Flyer Industries, Ltd.

Section 591.5(e) permits the importation into the United States of a motor vehicle or item of motor vehicle equipment that is not in compliance with the Federal motor vehicle safety standards upon the declaration of the importer that "[t]he vehicle or equipment item requires further manufacturing operations to perform its intended function other than the addition of readily attachable equipment items . . . ." New Flyer exports "bus shells" to the United States, which have been painted and equipped with tires and rims. You have informed us that the shells are completed as buses in the United States by the addition of "bumpers, engine and oil filter (or propulsion system), power plant, starter system, cooling system, fuel system, interior lighting, electric system, destination signs, seating and stanchions, heating and air conditioning system, chair lift (except on low floor buses) and various option packages." Approximately 300 hours are required to finish the shells after their arrival. You ask for confirmation that the bus shells may be imported pursuant to section 591.5(e), without the necessity for bonding.

From our review of this matter, we have concluded that a New Flyer bus shell lacking its intended motive power is neither a "motor vehicle," as defined by l5 U.S.C. 102(3), nor an "incomplete vehicle" as defined by 49 CFR 568.3. Instead, as systems or parts of a motor vehicle, the bus shell is an assemblage of "motor vehicle equipment", as defined by 15 U.S.C. 102(4). It is manifest from your description that the assemblage requires further manufacturing operations to perform its intended function, and that these operations involve more than the addition of readily attachable equipment items such as wheel covers and windshield wipers. Therefore, it is permissible for a New Flyer bus shell assemblage to be imported pursuant to the declaration of 49 CFR 591.5(e). As you have affirmed, each declaration will be accompanied by a written statement in accordance with 49 CFR 591.6(b)(2). We confirm that entries under 49 CFR 591.5(e) are not subject to the bonding requirements of this agency. However, they may be subject to those of the U.S. Customs Service.

You should be aware that certain Federal motor vehicle safety standards apply directly to equipment items (as contrasted with applying to completed motor vehicles), and if the bus shell assemblage includes those items, they must comply at the time of importation. Thus, the tires and rims on the assemblage must conform, and be certified as conforming, with Federal Motor Vehicle Safety Standards Nos. 119 and 120. If the shell contains window glazing, it must meet Standard No. 205.

Finally, we note your remark that "[w]ith regard to the documentation requirements of 49 C.F.R. 568.4 applicable to incomplete vehicles, the information required will be furnished when the completed buses are sold and delivered." As we have commented, the bus shell is not an incomplete vehicle, and the statement required by section 591.6(b)(2) is all the documentation that is required under the facts as you have related them to us. The bus shell will not become an "incomplete vehicle" until its power train is added, and the documentation specified by section 568.4 is not required to be furnished unless the bus is completed by a different manufacturer. All that is required to "be furnished when the completed buses are sold and delivered" is the permanently affixed certification of conformance with all applicable Federal motor vehicle safety standards (Part 567).

If you have any further questions, Taylor Vinson of this Office will be pleased to answer them (202-366-5263).

Sincerely,

John Womack Acting Chief Counsel

NCC-20 ZTVinson:mar:2/3/93:OCC 8280:62992 cc: NCC-0l Subj/Chron Interps. Part 591; Part 568, Redbook (4) 8280; ztv; U:\ncc20\interp\591\8280.ztv

ID: 8292

Mr. John B. White
Industry Standards & Government Regulations
Michelin
Post Office Box 2501
Greenville, SC 29602

Dear Mr. White:

This responds to your letter asking the National Highway Traffic Safety Administration (NHTSA) to clarify our certification procedures for the information of some of your customers. Specifically, you stated that some customers believe that you are required to test your tires for compliance with the Federal motor vehicle safety standards (FMVSS) and the Uniform Tire Quality Grading Standards (UTQGS), and that this agency then certifies your tires after reviewing and evaluating your test results.

Those impressions are incorrect. All new tires sold in the United States for use on passenger cars must be certified by the manufacturer as complying with FMVSS 109, New pneumatic tires, found at 49 CFR 571.109, while all new tires sold for use on motor vehicles other than passenger cars must be certified as complying with FMVSS 119, New pneumatic tires for vehicles other than passenger cars, found at 49 CFR 571.119. The National Traffic and Motor Vehicle Safety Act, 15 U.S.C. 1381, et seq. (Safety Act) establishes a self-certification procedure applicable to new motor vehicles and new items of motor vehicle equipment, which includes tires. This means that the tire manufacturer, and not a governmental agency such as NHTSA, certifies that its tires comply with applicable FMVSSs. Each new tire must be certified as meeting the applicable FMVSSs regardless of whether the tire meets an equal or higher standard in another country.

The UTQGS are set forth in 49 CFR 575.104. Those standards do not require certification in the same manner as the FMVSSs. The UTQGS require that manufacturers mold onto or into the sidewalls of their tires the comparative ratings of those tires for treadwear, traction, and temperature resistance for the use and benefit of consumers. Again, that is the manufacturers' responsibility and NHTSA neither reviews nor approves the ratings prior to their assignments by the manufacturers.

Neither the Safety Act nor NHTSA standards and regulations require that a manufacturer base its certifications on any specific tests, any number of specified tests or, for that matter, any tests at all. A manufacturer is only required to exercise due care in certifying its tires. It is the responsibility of each tire manufacturer to determine initially what test results, computer simulations, engineering analyses, or other information it needs to enable it to certify that its tires comply with applicable Federal safety standards. Once a manufacturer has determined that its tires meet all applicable Federal safety standards, it certifies such compliance by molding the letters "DOT" onto at least one sidewall of each certified tire. If manufacturers conduct any tests, they are not required by Federal law or regulation to release their test results to the public.

This agency does not perform any pre-sale testing, approval, or certification of tires, whether of foreign or domestic manufacture, before introduction into the U. S. retail market. Similarly, NHTSA does not approve or certify manufacturers' test results. Rather, NHTSA randomly tests certified tires to determine whether the tires do, in fact, comply with applicable standards. For such enforcement checks, NHTSA purchases tires "off the shelf" from retail tire dealers and tests those tires according to the procedures specified in the standards. If the tires pass the tests, no further action is taken. If they fail the tests and are determined not to comply with any applicable standard or standards, the manufacturer is responsible for recalling the tires and remedying the noncompliance without charge to the consumer. Government compliance test results are available to the public upon request from the NHTSA Technical Reference Division (NAD 52), 400 Seventh Street SW, Room 5108, Washington, D.C. 20590; (202) 366-2768.

I hope this information will assist you in clarifying tire certification requirements to the satisfaction of your customers. If you have any further questions or desire further clarification, please feel free to contact Walter Myers of my staff at this address or at (202) 366-2992.

Sincerely,

John Womack Acting Chief Counsel

ref:#109#119#575 d:4/27/93

ID: 8301

Mr. Guy Dorleans
International and Regulatory Affairs Manager
Valeo
34, rue Saint-Andre
93012 Bobigny Cedex
France

Dear Mr. Dorleans:

We have received your letter of January 22, 1993, asking for an interpretation of Motor Vehicle Safety Standard No. 108 as it relates to aimability of headlamps.

Valeo is currently studying new principles for aiming small circular headlamps. It appears that these headlamps will require unique aiming adaptors (meaning that the Hopkins universal adaptor cannot be used with them). These adaptors will be placed in the trunk of any vehicle with which they are supplied, and relevant instructions for use will be included in the vehicle operator's manual. Valeo has asked for confirmation that each version complies with Standard No. 108.

Standard No. 108 does not require that an aiming adaptor be provided with a motor vehicle, only that the vehicle's headlamps be capable of mechanical aim. Therefore there is no legal requirement that an adaptor be provided. However, without such an adaptor, an owner of a vehicle with the new headlamps may encounter difficulties at State inspection stations where the Hopkins adaptor is in use, and at repair facilities when headlamps are replaced or after body work has been performed that necessitates reaim of headlamps. Therefore we believe that provision of the adaptor and aiming information would enhance consumer acceptance of the new headlamps.

Sincerely,

John Womack Acting Chief Counsel ref:108 D:3/4/93

ID: 8302

Mr. Robert A. Ernst
Research Coordinator
I-Car Tech Center
4 Systems Drive, Suite C
Appleton, WI 54914

Dear Mr. Ernst:

This responds to your February 4, 1993, letter concerning possible legal obligations to repair an air bag system following a collision. You stated that your organization produces technical training for the automotive collision repair industry and has received a number of inquiries concerning this issue. Your specific questions are addressed below. Where two questions concern a common issue, they are addressed by a single response.

1. Are there Federal regulations which specifically direct the collision repair facility to restore the supplemental restraint system to an operable condition following a deployment on vehicles the facility repairs?

4. Can the vehicle be sold if the owner knows that the supplemental restraint is inoperable because of a previous deployment?

I am enclosing a copy of a January 19, 1990, letter to Ms. Linda L. Conrad which addresses the issue of possible legal obligations to repair a deployed air bag following a collision. As explained in that letter, Federal law does not require replacement of a deployed air bag in a used vehicle. In addition, there is no Federal law that prohibits selling a used vehicle with a supplemental restraint that is inoperable because of a previous deployment. However, our agency strongly encourages dealers and repair businesses to replace deployed air bags whenever vehicles are repaired or resold, to ensure that the vehicles will continue to provide maximum crash protection for occupants. Moreover, a dealer or repair business may be required by state law to replace a deployed air bag, or be liable for failure to do so.

2. If repairs are deliberately made to mask the fact that the air bag system is inoperative, has the repair facility violated any applicable laws?

Section S4.5.2 of Standard No. 208 requires a readiness indicator for an air bag system which is clearly visible from the driver's seating position. After an air bag is deployed, this indicator would show that the air bag system is not operative. Section 108(a)(2)(A) of the National Traffic and Motor Vehicle Safety Act (15 U.S.C. 1397(a)(2)(A)) provides that:

No manufacturer, distributor, dealer, or motor vehicle repair business shall knowingly render inoperative, in whole or in part, any device or element of design installed on or in a motor vehicle ... in compliance with an applicable Federal motor vehicle safety standard.

As explained in the Conrad letter enclosed, this provision does not impose an affirmative duty on a repair business to replace an air bag that was damaged in a crash. However, this section would prohibit the repair business from removing, disabling, or otherwise "rendering inoperative" the readiness indicator. Any violations of this "render inoperative" prohibition in the Safety Act would subject the violator to a potential civil penalty of up to $1,000 for each violation.

3. If the owner of the vehicle requests that the supplemental restraint not be restored to operational condition, is the owner of the repair facility or the vehicle liable for later injuries?

Liability risk is a question of state law, not of Federal law. Therefore, a repair business should consult an attorney in its state about this question.

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

Sincerely,

John Womack Acting Chief Counsel

Enclosure ref:VSA#208 d:3/4/93

ID: 8303

Ms Beverley Silver-Corber
6738 Montgomery St.
Vancouver, B.C. V6P 4G4

Dear Ms Silver-Corber:

This is in reply to your letter to the agency with respect to your wish to import into the United States a l992 Honda Accord, which was not manufactured to conform to the automatic restraint requirements of U.S. Federal Motor Vehicle Safety Standard No. 208 Occupant Crash Protection. You would like to use the car for a two-year period in the U.S. while your husband is in graduate school. You have asked whether you qualify for an exemption, and whether you will be allowed to import the car for the two years of study.

Under regulations of the Department of Transportation that govern the importation of motor vehicles, you, as a nonresident of the United States, are permitted to import your nonconforming Honda for a period of up to one year, provided that the importation is for your personal use, that you will not sell it during that time, and that the vehicle will be exported not later than the end of one year after entry (Title 49, Code of Federal Regulations, Section 591.5(d)). The reason for the one-year limitation is that, under the Road Traffic Convention (1952) and the Customs Convention on the Temporary Importation of Private Road Vehicles (1957), Conventions to which the United States is a party, an imported vehicle may be subjected to all the laws of any country in which it has remained longer than one year, including import duties and taxes. In recognition of the effect of these Conventions, we have adopted a one-year limitation on the temporary importation of nonconforming vehicles by nonresidents, and we do not grant waivers or exemptions from this requirement. However, if you return in the Honda to Canada at the end of the first year of your husband's studies, we would regard the export provisions as having been met, and a new one-year period would begin when the car is re-imported into the U.S. for your husband's second year of studies.

Although our regulations do provide for indefinite entry of nonconforming vehicles that are imported for "research, investigations, studies, demonstrations or training" (Section 591.5(j)), we do not interpret this as applying to importers who come to the U.S. to study. Rather, it applies to the importer who wishes to import a vehicle so that it may be studied.

Sincerely,

John Womack Acting Chief Counsel

ref:591 d:2/19/93