ID: 0391

Mr. Harry L. Williams, Jr.
President
Willy Lights Inc.
RR#1 Box 241
Bloomfield, Iowa 52537

Dear Mr. Williams:

We have received your letter mailed on September 27, 1994, with respect to the permissibility under Federal law of your invention, Willy Lights. This product appears to consist of lights installed on wheel rims.

You enclosed a copy of a memorandum to you on this subject dated October 24, 1988, from Greg Novak, an engineer with the Nevada Division of the Federal Highway Administration. After consulting with members of this agency, Mr. Novak wrote you that there were no regulations that prohibited the use of lighted wheel rims but that they could not "interfere with any standard safety equipment on a vehicle." You have asked whether this interpretation remains valid, and, if the lamps are not prohibited, the color permissible for the lamps.

You have not provided a detailed description of your device, such as the amount of illumination provided by the lights. Mr. Novak's advice that there are "no regulations prohibiting the use of lighted wheel rims" must be qualified. There are no Federal regulations that specifically prohibit the sale and installation of lighted wheel rims, but there may be regulations governing the use of lighted wheel rims issued by the individual States. We have no knowledge of State laws on this matter and suggest that you write for an opinion to the American Association of Motor Vehicle Administrators, 4600 Wilson Boulevard, Arlington, Va. 22203.

Federal Motor Vehicle Safety Standard No. 108 Lamps, Reflective Devices and Associated Equipment establishes the requirements for original lighting equipment for motor vehicles. Standard No. 108, in effect, prohibits the installation of supplementary lighting equipment such as Willy Lights before the initial sale of a vehicle if it impairs the effectiveness of the equipment required by Standard No. 108. Thus, if Willy Lights were sufficiently bright to mask in

whole or in part the side marker lamps and reflectors and any lamps mounted on the front and rear that wrap around the sides, Standard No. 108 would prohibit their installation. The seller (dealer) of the new vehicle has the responsibility of ensuring that the vehicle remains in compliance with Standard No. 108 when it installs supplementary lighting equipment, that is to say, the responsibility of determining whether or not impairment exists. This agency does not question such determinations unless they appear clearly wrong.

There is a similar prohibition for supplementary lighting equipment installed after the initial sale of a vehicle. When Willy Lights are installed by a manufacturer, dealer, distributor, or motor vehicle repair business, they must not make inoperative any of Standard No. 108's required equipment. With respect to Willy Lights, we would regard the question of making inoperative as equivalent to the question of impairing effectiveness. If it is concluded that Willy Lights do not impair new vehicle equipment, then one can conclude that its installation on a used vehicle will not have an operative effect on 108's equipment. However, the States retain the right to say whether or not Willy Lights may be used within their borders.

The color of the lamps may also be important in any determination of impairment or inoperability. Under Standard No. 108, required side marking equipment at or near the front of a vehicle must be amber in color, and red at or near the rear. To lessen the chance of confusion in a driver approaching from the side who may never have seen lighted wheel rims, we believe that it would be preferable to follow Standard No. 108's color code. Use of different colors, such as white or green, could cause momentary confusion in the eyes of an approaching driver, leading to the conclusion that the required side lighting equipment has been impaired or made partially inoperative by Willy Lights.

Sincerely,

Philip R. Recht Chief Counsel

ref:108 d:10/21/94

ID: 0394

Samson Helfgott, Esq.
Helfgott & Karas, P.C.
60th Floor
Empire State Building
New York, NY 10118-6098

Re: Your Ref. No.: 12.065

Dear Mr. Helfgott:

We have received your letter to John Womack, the former Acting Chief Counsel of this agency, responding to his letter to you of July 20, 1994. Thank you for enclosing a copy of his letter for ready reference.

Our previous letter to you was without the benefit of the diagram of the Caine system which you have now enclosed. The system is intended to be placed "along the side of trucks and other vehicles." It consists of three red lamps mounted over three amber (yellow) ones, the array installed between the amber front side marker lamp and the red rear side marker lamp. In normal operation the amber lamps are used as "running lights" but will be turned off when the red lamps are illuminated in a steady burning state upon application of the brake pedal. The three amber lamps will flash to indicate that the vehicle is turning. All six lamps will flash when the hazard indicator switch is on. If the turn signal is on and the driver's foot is on the brake pedal, the amber lamps will flash while the red ones illuminate in a steady burning state. At 32 candela, the turn signal lamps will be at a higher intensity than the running lamps which operate at 3 to 5 candela. These are within NHTSA specifications. You ask whether this system will be in violation of Standard No. 108.

This office has corresponded with you on lighting matters on a number of occasions and you are well aware that supplementary lighting equipment is prohibited as original equipment only if

it impairs the effectiveness of lighting equipment that is required by Standard No. 108. This determination is to be made by the manufacturer or dealer who installs the equipment and NHTSA will not question it unless it is clearly erroneous.

Sincerely,

Philip R. Recht Chief Counsel ref:108 d:12/8/94

ID: 04-002102drn

Mr. A. Bret Miller
Director, Quality Control and Certification
Cool City, Inc.
10655 Mineral Wells Highway
Cool, TX 76088

Dear Mr. Miller:

This responds to your request for an interpretation of Federal Motor Vehicle Safety Standard (FMVSS) No. 122, Motorcycle Brake Systems. You wish to know whether a prototype design of a three-wheeled motorcycle would meet FMVSS No. 122s requirement for "a parking brake of a friction type with a solely mechanical means to retain engagement." As explained below, the answer is no.

The National Highway Traffic Safety Administration (NHTSA) is authorized to issue FMVSSs for new motor vehicles and new items of motor vehicle equipment. NHTSA does not provide approvals of motor vehicles or motor vehicle equipment. Instead, manufacturers are required to certify that their vehicles and equipment meet applicable standards.

In your letter you describe your product, the "Sport Trike," as using "automotive (General Motors) disc brakes on all three wheels with a conventional hydraulic split service (master cylinder) brake system." You described the parking brake as follows:

The design contemplated for our vehicle would consist of a mechanical lever that would lock in place when applied while simultaneously applying leverage (pressure) to the service brake pedal mechanism to apply and hold the service brakes on all three wheels. The service brakes, while hydraulically applied, are of the standard automotive friction pad/caliper/disc type. This arrangement is quite similar to the method used for parking brake systems found on many aircraft.

Section S5.1.4, Parking brake, of FMVSS No. 122 states: "Each three-wheeled motorcycle shall be equipped with a parking brake of a friction type with a solely mechanical means to retain engagement."

We have reviewed the written description of your parking brake design, which describes the service brakes on each of the three wheels as "hydraulically applied." We have also reviewed the drawing. Based on the drawing, we note that although the parking brake is actuated by a mechanical lever, the parking brake in fact is retained by hydraulic means. S5.1.4 specifies that a three-wheeled motorcycle must have a parking brake of a friction type "with a solely mechanical means to retain engagement." (Emphasis added.) The requirement for a three-wheeled motorcycle to have a parking brake with "solely mechanical means to retain engagement" would preclude a parking brake design relying even in part on hydraulics for retention of engagement. Thus, a three-wheeled motorcycle with your proposed parking brake design would not meet FMVSS No. 122.

The confidential drawing you provided has been returned under separate cover.

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

Sincerely,

Jacqueline Glassman
Chief Counsel

ref:122
d.5/4/04

ID: 04-002108drn-3

Mr. Tom Hoholik
135 Chippewa Avenue
Manistique, MI49854

Dear Mr. Hoholik:

This responds to your request for an interpretation concerning National Highway Traffic Safety Administration (NHTSA) requirements which your product, the "Line Guide," must meet. Your product is designed to help drivers of motor homes, fifth wheel trucks, buses, and those who tow trailers stay in their highway lanes, without "constantly checking their mirrors."

Your website, www.gadgetinc.com, provides information about the Line Guide. A photograph of a Line Guide shows a horizontal black rod attached to a bar with two rubber suction cups. Three vertical prongs (which you call stems), at equal distances from each other, project from the horizontal rod. The Line Guide mounts directly on the dashboard using Velcro or windshield with suction cups, with power supplied through the vehicles cigarette lighter. Your website states:

The driver then uses the three stems of the Line Guide to help maintain position. Simply put when the center stem is on the centerline of the road the vehicle is in its lane. If the left is on the centerline the vehicle has drifted to the right & if the right stem is on the centerline the vehicle has drifted left. With just a glance at Line Guide you know right where you are.

The Line Guide is sold both with and without light emitting diodes (LEDs). If the unit is mounted facing the road, the lights will shine on the windshield. If the unit is mounted facing the driver, the LEDs can be viewed directly.

By way of background information, NHTSA is authorized to issue the Federal Motor Vehicle Safety Standards (FMVSSs) for new motor vehicles and new items of motor vehicle equipment. NHTSA does not provide approvals of motor vehicles or motor vehicle equipment. Instead, manufacturers are required to certify that their vehicles and equipment meet applicable standards.

NHTSA has not issued any FMVSSs that are directly applicable to your product. We note that if your product was installed in a vehicle by a manufacturer or other business, they would have responsibilities relating to ensuring that the vehicle met, or continued to meet, all FMVSSs with the product installed. However, given that your product is mounted to the vehicle by Velcro or suction cups and is powered by the cigarette lighter, we assume that it would be installed by vehicle owners. In this situation, our safety standards would not affect the sale or installation of your product.

Beyond compliance with relevant Federal safety standards, manufacturers of motor vehicle equipment have additional responsibilities, including a requirement to notify purchasers about safety-related defects and to provide a remedy free of charge, even if their equipment is not covered by a safety standard. 49 U.S.C. 30118-30120.

In addition, you should be aware that other governmental entities may have authority over your product. For example, the Departments Federal Motor Carrier Safety Administration (FMCSA) has jurisdiction over commercial vehicles and interstate motor carriers operating in the United States. You may wish to contact FMCSA for further information about any FMCSA regulations that may apply to your system. In addition, States have the authority to regulate the use and licensing of vehicles operating within their jurisdictions. Therefore, you may wish to check with the Department of Motor Vehicles in any State in which the equipment will be sold or used regarding any such requirements.

I have enclosed a fact sheet entitled "Information for New Manufacturers of Motor Vehicles and Motor Vehicle Equipment."I hope this information is helpful. If you have any further questions, please feel free to contact Dorothy Nakama of my staff at this address or by telephone at (202) 366-2992.

Sincerely,

Jacqueline Glassman
Chief Counsel

Enclosure
ref:101#VSA102(4)
d.4/30/04

ID: 04-003224drn

Thomas D. Turner, Vice Chairman
School Bus Manufacturers Technical Council
6298 Rock Hill Road
The Plains, VA 20198-1916

Dear Mr. Turner:

This responds to your letter dated April 13, 2004, asking for a technical amendment to correct two errors in Federal Motor Vehicle Safety Standard (FMVSS) No. 217, Bus emergency exits and window retention and release. We concur that the errors should be corrected.

You ask that the National Highway Traffic Safety Administration (NHTSA) revise the emergency exit window force application requirement at S5.3.3.2 of FMVSS No. 217, which reads in part: "In the case of windows with one release mechanism, the mechanism shall require two force applications to release the exit." You state that aJune 13, 1994, letter from former Acting Chief Counsel John Womack to the Blue Bird Body Company confirmed that the wording of S5.3.3.2 is in need of correction.

You are correct that in the June 1994 letter, the agency determined that the wording is susceptible to being misread as requiring two force applications to open the single release mechanism. In that letter, the agency said that the requirement should have been worded: "In the case of windows with one release mechanism, the exit shall require two force applications to open." (Emphasis added.) In a March 20, 1996, letter to Blue Bird, the agency affirmed the interpretation of the June 13, 1994, letter.

You ask that we proceed with issuing a technical amendment to correct S5.3.3.2. However, you ask that S5.3.3.2 be corrected by adding the words underlined in the following text: "In the case of windows with one release mechanism, the mechanism shall require one or two force applications to release the exit."(You also ask for an identical correction of a roof exit requirement in S5.3.3.3 that is similarly worded: "In the case of roof exits with one release mechanism, the mechanism shall require one or two force applications to release the exit.") Your suggested wording is different than the correction discussed in the previous letters.

Discussion

This letter affirms the position expressed in the agencys June 13, 1994, and March 20, 1996, letters that, under S5.3.3.2, in the case of windows with one release mechanism, the exit shall require two force applications to open. Similarly, under S5.3.3.3, in the case of roof exits with one release mechanism, the exit shall require two force applications to open.

However, we do not agree with your suggested wording. By stating that the mechanism shall require "one or two force applications to release the exit," it permits the mechanism to release (open) the exit upon a single force application. We believe that a single force application is insufficient because, for exits with one release mechanism, there is a potential for ejections through exits if the exit could be opened with just a single force. For example, passengers could be thrown against such a release mechanism in a rollover and accidentally ejected through the opening. (A discussion of NHTSAs concern about ejection through exits with a single action release mechanism can be found in the final rule issuing S5.3.3.2 and S5.3.3.3, 57 FR 49413; November 2, 1992.) Accordingly, the agency continues to interpret S5.3.3.2 and S5.3.3.3 as specifying, for windows and roof exits with one release mechanism, that the exit shall require two force applications to open.

We plan to conduct rulemaking to address this matter as resources permit. If you have any further questions at this time, please contact Dorothy Nakama of my staff at this address or by telephone at (202) 366-2992.

Sincerely,

Jacqueline Glassman
Chief Counsel

ref:217
d.6/16/04

ID: 04-003303Suzuki_benchseat

Kenneth M. Bush, Regulations Manager
American Suzuki Motor Corporation
3251 E. Imperial Highway
P.O. Box 1100
Brea, CA 92822-1100

Dear Mr. Bush:

This responds to your letter asking about the procedures set forth in Federal Motor Vehicle Safety Standard(FMVSS) No. 214, "Side Impact Protection," for positioning a test dummy in the rear seat of vehicles. Different positioning procedures are specified in S7.1.3 of FMVSS No. 214 for bench seats and for bucket or contoured seats. You ask whether the National Highway Traffic Safety Administration would consider two particular vehicle rear seats as bench seats or as bucket or contoured seats. Our answer is that we would consider both as bench seats.

The first rear seat you ask about is shown in photograph 1 of your letter. You describe the seat as: "a bench-type seat with split folding seatbacks, but without fore/aft seat adjustment. The seat has three seating positions with stitching and contours that outline two rear outboard passenger seating positions".

The second seat, shown in photograph 2 of your letter, is "the rear seat of a sport-utility vehicle". This seat is also a bench-type seat that has three seating positions. The seat is split 60%/40%, and the two sections have independent fore/aft and seatback adjustments".

FMVSS No. 214 does not define the terms "bench seats," "bucket seats" or "contoured seats". However, seats are commonly considered bench seats when their separate sections are side-by-side, as shown in your photographs, even when they are separately adjustable. While the seat in photograph 1 is slightly contoured, we do not believe that it is contoured to a degree that it should be regarded as a contoured seat. Since we regard the seat you ask about as a bench seat, the dummy positioning procedures specified in S7.1.3(a) would apply.

I hope this information is helpful. If you have further questions, please contact Deirdre Fujita of my staff at (202) 366-2992.

Sincerely,

Jacqueline Glassman
Chief Counsel

ref:214
d.8/16/04

ID: 04-003879-2drn

Rod Nash, P.E.
Vice President of Engineering
Collins Industries, Inc.
15 Compound Drive
Hutchinson, KS 67502-4349

Dear Mr. Nash:

This responds to your request for an interpretation of Federal Motor Vehicle Safety Standard (FMVSS) No. 222, School Bus Passenger Seating and Crash Protection.You ask how the standard applies to school bus seats that are adjoining, yet have individual sized backs for each passenger" and "unique cushions for each student."You enclosed copies of product literature from Freedman Seating Company that indicates that each seat is 17 inches wide, and that two seats together are 35 inches.

You first ask about the test procedure in S5.1.3, Seat performance forward. S5.1.3 specifies that school bus passenger seats must deflect in a specified manner when force is applied through a loading bar that is centered behind the seat back. The loading bar is described in S6.5 of FMVSS No. 222. S6.5 specifies, "the length of the loading bar is 102 mm less than the width of the seat back in each test. "

You ask whether the "width of the seat back" as stated in S6.5 refers to the width of one seat back or the width of both seat backs together. Our answer is that in this situation the two seats would be considered as a single "seat" for the purposes of FMVSS No. 222. Our answer is consistent with an August 16, 2004, interpretation letter to American Suzuki Motor Corporation, on FMVSS No. 214, Side Impact Protection. In the letter to Suzuki, we noted that the term "bench seats" is not defined in FMVSS No. 214 and stated:"However, seats are commonly considered bench seats when their separate sections are side-by-side, as shown in your photographs, even when they are separately adjustable. "

Therefore, the width of the seat back used in the determination of the length of the loading bar would be the overall width of both seat backs together. The seat back width would be measured on a horizontal plane 406 mm above the seating reference point across both seat backs and the loading bar would be 102 mm shorter than this measurement.

Your second question asks about the correct method of determining the necessary projected surface area of the seat back under S5.1.2 of FMVSS No. 222. S5.1.2 states:

Seat back height and surface area. Each school bus passenger seat shall be equipped with a seat back that, in the front projected view, has a front surface area above the horizontal plane that passes through the seating reference point, and below the horizontal plane 508 mm above the seating reference point, of not less than 90 percent of the seat bench width in millimeters multiplied by 508.

Although your letter asks about "the correct place to determine seat back width," in fact the requirement for projected surface area is based on seat bench width. Thus, the required projected surface area is calculated by multiplying 508 times the seat bench width, which in this case encompasses both adjoining seats, and then multiplying by 0.9. In your example, the seat bench width is 889 mm (35 inches). The projected area is calculated excluding the V-shaped notch area in the back seat in the same manner that the area of the radius of the corners of conventional seat backs is removed (reference TP-222-03).

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

Sincerely,

Jacqueline Glassman
Chief Counsel

ref:222
d.9/21/904

ID: 04-004216drn

Mr. Larry Medina
101 East Whipple Extension St.
Prescott, AZ86301

Dear Mr. Medina:

This responds to your request for an interpretation concerning National Highway Traffic Safety Administration (NHTSA) requirements that your product, the "Emergency Vehicle Warning," must meet. Your product is designed to provide to drivers visual warning of the approach of emergency vehicles.

Your letter describes the "Emergency Vehicle Warning" as follows:

The concept is simple, sensors are placed on the outside of a car, sensors detect the sound of a siren (emergency vehicle), sensors then transmit a signal to a receiver, this receiver is placed on the instrument panel or rear view mirror or visor. The receiver is approximately 2 inches long and 1/12 wide with two or more light emitting diodes (lights). Its placement can be clipped or mounted with adhesive tape. Once the receiver detects a signal from the sensors, the lights flash giving the driver a visual alert of an approaching emergency vehicle.

In a telephone conversation with Dorothy Nakama of my staff, you stated that you intend the "Emergency Vehicle Warning" to be provided on new motor vehicles and to be installed as aftermarket equipment. In my response to you, I will assume that the outside sensors described in your letter do not incorporate any type of lighting.

By way of background information, NHTSA is authorized to issue the Federal Motor Vehicle Safety Standards (FMVSSs) for new motor vehicles and new items of motor vehicle equipment. NHTSA does not provide approvals of motor vehicles or motor vehicle equipment. Instead, manufacturers are required to certify that their vehicles and equipment meet applicable standards.

We have previously addressed motor vehicle equipment similar to the "Emergency Vehicle Warning."Enclosed is an interpretation letter of May 4, 2000 to Mr. Lou McKenna (McKenna letter).

The McKenna letter addressed a system inside the vehicle that consisted of an audible alarm and a flashing red display of the words "Emergency Vehicle." The alarm and the red display are triggered by a signal from an emergency vehicle. We make clear in the McKenna letter that:

None of the laws and regulations that we administer preclude a flashing red message on the instrument panel or an audible siren in or on a motor vehicle. This means that the legality of such devices must be determined under state and local laws.

Similarly, in your case, none of NHTSAs laws or regulations would preclude a receiver with light-emitting diodes to be placed on an instrument panel, interior rearview mirror or visor, if installed in such a way that it would not interfere with any required safety function. NHTSA has not issued any FMVSSs that are directly applicable to your product. However, something placed on the reflective surface of a mirror could affect its compliance with the field of view requirements of FMVSS No. 111, Rearview mirrors.

If your "Emergency Vehicle Warning" were installed by a vehicle manufacturer as original equipment, i.e., on a new vehicle, the vehicle manufacturer would have to certify that the vehicle with the product installed complies with all applicable FMVSSs. Also, if your product were installed by a motor vehicle manufacturer, distributor, dealer or repair business on a new or used vehicle, that commercial entity would be prohibited by 49 U.S.C. 30122 from knowingly making inoperative any device or element of design installed on or in the vehicle in compliance with an applicable Federal motor vehicle safety standard. When your product is installed by the vehicle owner, our safety standards would not affect the sale or installation of your product.

Beyond compliance with relevant Federal safety standards, manufacturers of motor vehicle equipment have additional responsibilities, including a requirement to notify purchasers about safety-related defects and to provide a remedy free of charge, even if their equipment is not covered by a safety standard. 49 U.S.C. 30118-30120.

In addition, you should be aware that other governmental entities may have authority over your product. States have the authority to regulate the use and licensing of vehicles operating within their jurisdictions. Therefore, you may wish to check with the Department of Motor Vehicles in any State in which the equipment will be sold or used regarding any such requirements.

I have enclosed a fact sheet entitled "Information for New Manufacturers of Motor Vehicles and Motor Vehicle Equipment." I hope this information is helpful. If you have any further questions, please feel free to contact Dorothy Nakama of my staff at this address or by telephone at (202) 366-2992.

Sincerely,

Jacqueline Glassman
Chief Counsel

Enclosure
ref:VSA102(4)
d.7/21/04

ID: 04-004377drn

Jock Marlo, Esq.
Hart, King & Coldren
P.O. Box 2507
Santa Ana, CA 92707

Dear Mr. Marlo:

This responds to your request for an interpretation concerning National Highway Traffic Safety Administration (NHTSA) requirements that your clients product, the "Smart Shift," must meet. The "Smart Shift" permits drivers to shift gears by a push button system, replacing transmission shift gear levers.

You described the "Smart Shift" as follows:

The Smart Shift is an automotive aftermarket product. It is sold to vehicle owners for installation by the vehicle owner or his designee. The Smart Shift is an electronically controlled shifter that attaches to an automatic transmission which allows the user to shift the transmission gears by the touch of a button, thereby eliminating the transmission gear selector rod or cable. It features a neutral safety device, a built in reverse light relay, a safety button to prevent accidental shifts, and back lit buttons and LCD display for positive gear selection.

You also provided a copy of the "Smart Shift Preliminary Users Manual." The manual shows, on page 5, a schematic of the "Smart Shift" system that includes the shift position keyboard. From left to right, in a row, the buttons are: "P," "R," "N." Slightly above this row is a button, "D+." Slightly below the row is a button, "D-." I will assume that "P" stands for "park," "R" for "reverse," "N" for "neutral," "D+" for a higher drive and "D-" for a lower drive. The schematic also includes a "Display" which you explained in your letter displays the "positive gear selection."

By way of background information, NHTSA is authorized to issue the Federal Motor Vehicle Safety Standards (FMVSSs) for new motor vehicles and new items of motor

vehicle equipment. NHTSA does not provide approvals of motor vehicles or motor vehicle equipment. Instead, manufacturers are required to certify that their vehicles and equipment meet applicable standards.

NHTSA has issued FMVSS No. 102, Transmission shift lever sequence, starter interlock, and transmission braking effect, which specifies requirements for the transmission shift lever sequence, a starter interlock, and for a braking effect of automatic transmissions, to reduce the likelihood of shifting errors, starter engagement with vehicle in drive position, and to provide supplemental braking at speeds below 40 kilometers per hour. FMVSS No. 102 applies to passenger cars, multipurpose passenger vehicles, trucks, and buses.

Among FMVSS 102s provisions are the following:

• a neutral position must be located between forward drive and reverse drive positions (see S3.1.1);
• the engine starter must be inoperative when the transmission shifting device is in a forward or reverse drive position (see 3.1.3);
• for a transmission shift sequence that includes a park position, identification of the shift positions, including the positions in relation to each other and the position selected, must 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 (see S3.1.4.1); and
• the information required to be displayed by S3.1.4.1 must be displayed in view of the driver in a single location (see S3.1.4.4).

Although the standard makes references to "transmission shift levers," no provision in FMVSS No. 102 would preclude a device that allows the user to shift the transmission gears by the touch of a button.

Since FMVSS No. 102 applies to motor vehicles, not to aftermarket automatic transmission shifting devices, your client would not be required to certify compliance with FMVSS No. 102. However, if the "Smart Shift" is installed by certain parties, 49 U.S.C. Section 30122 would be relevant. Section 30122 provides that:

A manufacturer, distributor, dealer, or motor vehicle repair business may not knowingly make inoperative any part of a device or element of design installed on or in a motor vehicle or motor vehicle equipment in compliance with an applicable motor vehicle safety standard.

Section 30122 would prohibit any of the above-named commercial entities from installing a "Smart Shift" if such installation makes inoperative the compliance of the vehicle with any applicable safety standard, including FMVSS No. 102. For example, if the "Smart Shift" caused the vehicle to no longer comply with any of the requirements noted under the bullets above, installation of the system would make inoperative compliance of the vehicle with that standard.

You also write that your clients product may be installed by vehicle owners. In this situation, our safety standards would not affect the sale or installation of the product. The "make inoperative" provision does not prohibit owners from modifying their vehicles, even if the modification adversely affects the compliance of the vehicle with the FMVSSs. However, we encourage all persons to avoid making vehicle modifications that have an adverse effect on safety.

Beyond compliance with relevant Federal safety standards, manufacturers of motor vehicle equipment have additional responsibilities, including a requirement to notify purchasers about safety-related defects and to provide a remedy free of charge, even if their equipment is not covered by a safety standard. 49 U.S.C. 30118-30120.

In addition, you should be aware that other governmental entities may have authority over your product. For example, the States have the authority to regulate the use and licensing of vehicles operating within their jurisdictions. Therefore, you may wish to check with the Department of Motor Vehicles in any State in which the equipment will be sold or used regarding any such requirements.

I have enclosed a fact sheet titled "Information for New Manufacturers of Motor Vehicles and Motor Vehicle Equipment." I hope this information is helpful. If you have any further questions, please feel free to contact Dorothy Nakama of my staff at this address or by telephone at (202) 366-2992.

Sincerely,

Jacqueline Glassman
Chief Counsel

Enclosure
ref:102#VSA102(4)
d.8/11/04

ID: 04-004579drn

Stephen E. Selander, Esq.
Senior Counsel
Warner Norcross & Judd LLP
2000 Town Center, Suite 2700
Southfield, MI 48075-1318

Dear Mr. Selander:

This responds to your request for an interpretation whether your clients (Morbarks) products, portable brush chippers, are "motor vehicles" for purposes of the National Traffic and Motor Vehicle Safety Act, including the TREAD Act. We 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 provided information about several models of brush chippers. You write that:"Eight of the models have axles, tires and wheels, and can be easily moved around a site or from site-to-site by towing."

You stated that Morbark believes that its portable brush chippers are not covered by the Vehicle Safety Act or the TREAD Act. You stated that Morbark brush chippers are designed primarily for use off-highway in helping to clear sites of trees and brush by chipping the brush, tree limbs, and small tree trunks.

You also stated that Morbark believes that its portable brush chippers are not trailers as defined in 49 CFR 571.3. That regulation defines trailer as "a motor vehicle with or without motive power, designed for carrying persons or property and for being drawn by another motor vehicle."

We have reviewed the videotape you enclosed with your letter. We note that in some instances, the Morbark brush chipper and vehicle towing the chipper were depicted as parked on the side of the road in what appears to be a residential area. We also understand from the information you provided that some of these products are used by tree service and landscape companies. We have also reviewed information provided at Morbarks web site: www.morbark.com.

Whether Morbarks portable brush chippers are considered motor vehicles under the National Traffic and Motor Vehicle Safety Act depends on their use, i.e., whether they typically spend extended periods of time at a single site or, by contrast, use the public roads on a necessary and recurring basis. By way of example, in a letter to DuraTech dated June 4, 1997, we took the position that mobile tub grinders are not motor vehicles because they stay on job sites for extended periods of time (usually for months and very rarely for less than a week). Similarly, we have concluded that mobile waterjet cutting and cleaning equipment was not a motor vehicle, based on the fact that it appeared to stay on job sites for extended periods of time ranging from a week to over a year.

We do not have information concerning the specific usage patterns of each of Morbarks brush chippers to determine whether they are motor vehicles. 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. However, if the brush chippers use the public roads on a necessary and recurring basis, they would be motor vehicles. We would think that would likely be the case for at least some of Morbarks portable brush chippers, since tree service and landscape companies would tow the portable brush chippers by trucks to jobs, park them along the curb during work, and then tow them to the next job or, at the end of the day, return them to the companys facilities. Tree service company crews commonly complete one to two jobs per day. We also note that, in a letter to Lindig Manufacturing Corporation dated January 5, 1984, we took the position that brush chipper trailers are motor vehicles.

As to your question concerning the definition of trailer, we would consider the brush chipper itself to be the property being transported.

I have enclosed a fact sheet entitled "Information for New Manufacturers of Motor Vehicles and Motor Vehicle Equipment."I hope this information is helpful. If you have any further questions, please feel free to contact Dorothy Nakama of my staff at this address or by telephone at (202) 366-2992.

Sincerely,

Jacqueline Glassman
Chief Counsel

Enclosure
ref:VSA102(4)
d.8/27/04