Interpretation ID: nht75-6.24
DATE: 04/16/75
FROM: RICHARD B. DYSON -- NHTSA ASSISTANT CHIEF COUNSEL
TO: GEOFFREY R. MYERS -- HALL & MYERS
TITLE: N40-30 (RED)
ATTACHMT: ATTACHED TO 01/01/75 (EST) LETTER FROM RICHARD B. DYSON -- NHSTA CHIEF COUNSEL TO ALLEN B. FREDHOLD OF K-B AXLE COMPANY INC.; N40-30 (TWH); UNDATED LETTER FROM RICHARD B. DYSON -- NHSTA CHIEF COUNSEL TO ADDRESSEE UNKNOWN
TEXT: Dear Mr. Myers:
This is in response to your letter of March 25, 1975, enclosing a circular to Truck Equipment and Body Distributors Association members, and a petition containing questions concerning the position of the NHTSA regarding conformity to Standard 121 by persons who alter chassis prior to their completion as trucks or truck tractors. You asked that we comment on your circular and answer the questions in your petition. In the interest of a rapid reply, I would like to respond in this letter to your request concerning your circular. We will answer separately the questions in your petition.
I will quote from our docketed memorandum of the meeting that we had on March 19:
"Under NHTSA interpretations and opinions of long standing, actual road tests are not necessary to establish compliance with Standard 121 or other standards, where other reasonable means, such as engineering calculations coupled with laboratory tests, can be used to the same effect. The agency has recognized that small companies' such as many of the finalstage and intermediate manufacturers represented by the TEBDA, cannot be expected to test on the same scale or by the same methods as large integrated automotive manufacturers. Supplier warranties and instructions are one of the primary means by which smaller assemblers are expected to use statutory "due care" to see that their products conform."
You and the association have attempted to set forth our position to your clients, and I don't want to quibble over the precise form of words that you choose. On the other hand, I don't believe the agency should be in the position of appearing to endorse a description of its position that does not conform to its own statements.
Paragraph 5 of the circular represents us as having said that "road tests and the testing of brake release and actuation times are NOT REQUIREMENTS of the standard, but merely methods of assuring compliance." This point is not incorrect, but could be misunderstood out of context. Our position here is not limited to road tests or even Standard 121, but applies to all the requirements of all the motor vehicle safety standards. The standards describe the required capabilities of the vehicles in question; they are not instructions to the manufacturer as to how he ensures those capabilities. Thus, the standard does not specify who must test what and how. It requires that vehicles be capable of meeting the tests when the government tests them, and that manufacturers (including intermediate and final-stage manufacturers) use due care to see that they are so capable.
In the sixth paragraph, the circular states that
"you may still certify a vehicle under FMVSS 121 (even if you increase the GVW, move component parts and/or do not have available the height of the body's center of gravity), provided that your own expertise and judgment reasonably indicates to you that your work has not adversely affected the chassis maker's conformance statements. In other words, you must have no real reason to believe that the completed vehicle does not comply with FMVSS 121. (And this is true even if your reasonable judgment later proves to be wrong.)"
The key word in this passage is "reasonable." The judgment by which the alteration is made must indeed be reasonable to satisfy the due care test. The sentence beginning "In other words" may be misleading, if it leads the reader to believe that blissful ignorance is enough. In case of a failure to comply, a vehicle alterer should be prepared to show, where he used calculations, for example, that the calculations were a reasonable interpretation of the information that was available to him. If a company does not have the in-house capability of making such calculations and judgments, it should obtain it from outside sources such as suppliers or independent contractors. We noted at the meeting on which the circular was based that persons from the axle supplier represented indicated that they were prepared to assist their customers (such as the association members) in this regard.
You should note that our discussion of due care does not deal with the question of what action must be taken by a manufacturer by way of remedy, if a nonconformity is discovered in his vehicles that is not "inconsequential" within the meaning of section 157 of the Act (1974 Amendments). Except for the case of an inconsequentiality finding, the duty to remedy a nonconformity exists regardless of prior testing or any other measures taken by the manufacturer.
Yours truly,