ID: 15732.ztv

Mr. Dan Lessnau
DriverCheck International, Inc.
2100 Powers Ferry Road, Ste. 201
Atlanta, GA 30339

Dear Mr. Lessnau:

This is in reply to your letter of August 4 to the Administrator, asking for an interpretation regarding the legality of obscuring a portion of retroreflective sheeting.

Your company manufactures decals (3" x 18") which state "How's my driving" in white letters on red, and "Call 1-800-2 Advise" in red letters on white, with a 5 character identification code in black letters on white. Some of your customers have asked as to "the legality of placing our decals over the striping on the back of flatbeds."

Manufacturers must apply retroreflective sheeting to large trailers, and truck tractors, pursuant to Federal Motor Vehicle Safety Standard No. 108. The standard requires treatment "across the full width of the trailer, as close to the extreme edges as practicable." An exception is made for discontinuous surfaces such as hinges, which are not generally found on the rear of a flatbed. In our opinion, a decal applied over a portion of the conspicuity treatment on the rear of flat bed trailers would interrupt its extension "across the full width" and prevent the treatment from completely fulfilling its safety purpose. In short, a vehicle which had the decal applied over a portion of the conspicuity treatment would not comply with Standard No. 108.

Our laws prohibit a manufacturer, distributor, or dealer from applying the decal before the sale of the flatbed to its first owner, since the vehicle would not be in compliance with Standard No. 108. Our laws also prohibit these persons, and motor vehicle repair businesses as well, from applying the decal after the flatbed has been sold.

You have also asked, in effect, whether there would still be a violation if the decal were retroreflective. The answer is yes, for reasons in addition to the ones discussed above. Although a retroreflective decal identical to the one you sent us would continue to use the required colors of red and white, the standard sets forth a pattern of alternating single color segments, and your dual color two-level message would not comply with this specification.

It seems likely to us that the decal is intended for aftermarket sale to the commercial vehicle industry, and application by trucking companies. Under these circumstances, the use of the decal would be a violation of 49 CFR 393.11, a safety regulation of the Federal Highway Administration (FHWA). Section 393.11 requires that commercial motor vehicles manufactured on or after March 7, 1989, and operated in interstate commerce, be equipped with all the lamps and reflective devices required by Standard No. 108 on the date on which the vehicle was manufactured. Therefore, the use of a decal that obscures a portion of the retroreflectrive sheeting is prohibited by the FHWA. Motor carriers must maintain the trailer conspicuity treatments on all trailers manufactured on or after December 1, 1993, in order to comply with 49 CFR 393.11.

Please note that on April 14, 1997, the FHWA proposed revising Section 393.11 to include explicit language concerning trailer conspicuity requirements (62 FR 18170). I am enclosing a copy of this proposal. Pages 18172-74 discuss the rationale for the proposed changes, and pages 18188-92 provide the regulatory language that is being considered. If you have any question concerning the FHWA's requirements, you may phone Larry Minor in the FHWA's Office of Motor Carrier Research and Standards (202/366-4009).

If you have any questions about Standard No. 108, you may phone Taylor Vinson of this Office (202-366-5263).

Sincerely,
John Womack
Acting Chief Counsel
Enclosure
ref:108
d.10/14/97

ID: 15737.ztv

Mr. Ron Stoddard
J & M Camper Sales
RR6 Box 526
Augusta, Maine 04330

Dear Mr. Stoddard:

This is in reply to your letter of August 7, 1997, requesting a clarification of laws pertaining to center stop lamps on truck camper caps.

You report selling a truck cap to a customer equipped with a center stop lamp, telling him that this was required because his truck was equipped with one. The Maine State Police told him that it was not mandatory, whereupon your customer asked you "to order and install a cap without a brake light, which we refused." You then consulted the State Police whose letter to Jeff Stoddard dated August 1, 1997, you have enclosed. You do not feel that the letter clarifies the law, and you have asked "Are we responsible if we do not install a cap and sell it for them to install themselves? Or can we install one without a brake light? We interpret the law as, if you have a brake light on the back of your truck and install a cap, you must have a light on the cap." You have also asked "do the State Laws override the Federal Government safety laws?"

The letter from Lt. Dow of the Maine State Police agrees that "you are correct in determining that a dealer must include a third brake light when a cap is installed on a truck required to have a high mounted brake light. However, it is also correct that the owner of a truck equipped with a cap is not required to have a third brake light on the cap." Maine has concluded that it "will tell the owners of pick-up trucks that the law does not require them to have a third brake light on a cap, but that dealers are required to include them."

As a practical matter, both you and the Maine State Police are correct. In virtually all instances, we believe that the cap will be installed by its seller at the time and point of purchase, and under these facts, the dealer must provide the third stop lamp on the cap. However, if the purchaser installs the cap, the cap need not be equipped with the third stop lamp, unless State law requires it.

Here is how we arrive at that interpretation. Our basic regulatory statute (49 U.S.C. Chapter 301 - Motor Vehicle Safety) prohibits a manufacturer, dealer, distributor, or motor vehicle repair business from making inoperative any device (such as the center stop lamp) installed in accordance with a Federal motor vehicle safety standard (in this instance, Federal Motor Vehicle Safety Standard No. 108). Thus, if one of the four entities named above installs a cap on a pickup truck that obscures the center stop lamp originally provided, that person will have made the center stop lamp inoperative, which the law prohibits. However, there will be no violation if the cap is equipped with a substitute lamp that meets the photometric and location requirements of the original center stop lamp. This is why the caps that you sell and install must have a center stop lamp.

However, there is no requirement per se in Standard No. 108 that a cap be equipped with a center lamp. This means you don't have to provide a center stop lamp on a cap that you don't install. Thus, since vehicle owners are not subject to the "make inoperative" provisions of Federal law, a vehicle owner can order a cap without a center stop lamp and install it himself without violating Federal law. The letter from the Maine State Police indicates that this is also permitted under state law. You'll find a discussion of these points in the preamble to the final rule on pickup truck center stop lamps which I am enclosing for your information (see pages 16016 and 16017).

The Maine letter is therefore incomplete in its statement that cap "dealers are required to include" center stop lamps. This is a Federal requirement only if the dealer installs the cap. We appreciate the efforts of the State Police to assist you, and are providing Lt. Dow with a copy of our response to you.

You also inquired about the relationship between State and Federal motor vehicle safety laws. The Federal Motor Vehicle Safety Standards of this agency are manufacturing requirements which must be met through the time of initial sale. A State may not establish or continue in effect a State motor vehicle safety standard covering the same aspect of performance as a Federal standard unless it is identical to the Federal standard (a State may establish more stringent standards for State-owned vehicles). The acceptability of modifications to vehicles thereafter are governed by the "make inoperative" provisions mentioned above, and are also subject to State law. States also retain exclusive rights over the licensing and use of vehicles on State roads.

I hope that this has been helpful. If you have further questions you may call Taylor Vinson of this Office (202-366-5263).

Sincerely,
John Womack
Acting Chief Counsel
Enclosure
cc: Lt. Bruce Dow
ref:108
d.9/29/97

ID: 15740.ztv

The Honorable Phil Gramm
United States Senator
2323 Bryan Street, #1500
Dallas, TX 75201
Attention: Linda Bazaco

Dear Senator Gramm:

This is in reply to your inquiry of August 3, 1997, on behalf of your constituent, Reggie Lawrence of Midland.

Mr. Lawrence believes that I "hastily misinterpreted" Federal Motor Vehicle Safety Standard No. 108 in informing him by letter of May 30, 1997, that his invention would create a noncompliance with the standard.

Specifically, S5.5.4 of Standard No. 108 requires that vehicle stop lamps be activated upon application of the service brakes. Mr. Lawrence's invention would result in a vehicle's stop lamps remaining activated for six seconds after the brake pedal was released. Because "there is no indication that these lamps must be deactivated when the service brakes are released,"

Mr. Lawrence believes that he is "well within the guidelines of the Safety Standard #108."

It is quite clear to us that implicit in the requirement that stop lamps be activated upon application of the service brakes is that they be deactivated when the service brakes are not applied. Adopting Mr. Lawrence's interpretation would mean that stop lamps could remain lit indefinitely after first being activated by the application of the service brakes. This would result in a following driver having no indication at all that the vehicle ahead was braking, and detract from safety rather than adding to it.

Sincerely,
John Womack
Acting Chief Counsel
ref:108
d.9/22/97

ID: 15753.ogm

J.F. Brownholtz, Ph.D.
Department of Exercise and Sport Sciences
University of Miami
School of Education
P.O. Box 248065
Coral Gables, FL 33124-2040

Dear Dr. Brownholtz:

This responds to your letter to the National Highway Traffic Safety Administration (NHTSA), in which you request that NHTSA test and endorse your product. You have developed an aftermarket supplemental head restraint, the "Neck Saver," which is designed to be installed on existing head restraints in automobiles and other vehicles.

By way of background information, Chapter 301 of Title 49, U.S. Code gives this agency the authority to issue safety standards applicable to new motor vehicles and new items of motor vehicle equipment. Chapter 301 provides that no person shall "manufacture for sale, sell, offer for sale, or introduce or deliver for introduction in interstate commerce, or import into the United States" any new motor vehicle or new item of motor vehicle equipment unless the vehicles or equipment comply with the applicable standard. (See 49 U.S.C. 30112.) NHTSA has no authority under Chapter 301 to approve, certify, or otherwise endorse any commercial product. Instead, Chapter 301 establishes a self-certification process under which each manufacturer is required to certify that each of its products meets all applicable Federal Motor Vehicle Safety Standards. Moreover, NHTSA does not endorse any products.

There is currently no Federal motor vehicle safety standard that is directly applicable to the product you wish to manufacture and sell. Our standard for head restraints (Standard No. 202) applies only to new passenger cars, multipurpose passenger vehicles, trucks and buses with a gross vehicle weight rating (GVWR) of 10,000 pounds or less.

However, there are other Federal requirements that indirectly affect your manufacture and sale of the "Neck Saver." Under Chapter 301, your device is considered to be an item of motor vehicle equipment. As a manufacturer of motor vehicle equipment, you are subject to the requirements in sections 30118-30120 of Chapter 301 concerning the recall and remedy of products with defects relating to motor vehicle safety. In the event that you or NHTSA determines that the "Neck Saver" contains a safety related defect, you would be responsible for notifying purchasers of the defective equipment and remedying the problem free of charge.

It appears that the "Neck Saver" would be installed by the vehicle owner. However, if it were to be professionally installed, Section 30122 of Title 49, U.S. Code provides that a manufacturer, distributor, dealer, or motor vehicle repair business may not knowingly make inoperative any device or element of design installed on or in a vehicle or item of motor vehicle equipment in accordance with a safety standard. For example, a commercial entity must ensure that the addition of the device does not degrade from the safety provided by flammable-resistant materials in the vehicle's interior compartment which have been installed in accordance with Standard No. 302. Installation of rapidly burning materials could vitiate the compliance of the materials which were present in the vehicle at the time of its sale to the first consumer and were certified as meeting FMVSS No. 302. Similarly, a commercial entity must ensure that installation of the device does not affect compliance with Standard No. 202.

However, the prohibitions of Section 30122 do not apply to the actions of a vehicle owner in adding to or otherwise modifying his or her vehicle. Thus, a vehicle owner would not violate Chapter 301 by installing the head restraint, even if doing so would negatively affect some safety feature in his or her vehicle.

NHTSA is currently studying the possibility of proposing changes to Standard No. 202. I am enclosing a copy of a December 19, 1996 request for comments (61 FR 66992) in which the agency requested interested parties to submit their views on a NHTSA Technical Report titled, "Head Restraints-Identification of Issues Relevant to Regulation, Design, and Effectiveness." While the comment period outlined in this notice has closed, I am providing a copy of the report in light of your interest in this subject.

We are also returning herewith the samples of the "Neck Saver" you enclosed with your letter.

Please feel free to contact Otto Matheke of my staff at (202) 366-5253 if you have further questions.

Sincerely,

John Womack
Acting Chief Counsel
Enclosures
ref:202
d.12/18/97

ID: 15810.ztv

Kiyoshi Narabu, General Manager
Technical Department
Ichikoh Industries, Ltd.
80 Itado, Isehara
Kanagawa, 259-11
Japan

Dear Mr. Narabu:

This is in reply to your letter of August 19, 1997, asking for an interpretation of Federal Motor Vehicle Safety Standard No. 108, specifically, S7.8.3 and S7.8.4.

The first sentence of S7.8.3 states that "When a headlamp system is tested in a laboratory, the range of its vertical aim shall not be less than +/-4 degrees from the nominal correct aim position for the intended vehicle application." To the same effect is the first sentence of S7.8.4 which prescribes a horizonal aim tolerance of +/-2.5 degrees. You state that "there are no provisions that prescribe the aim range formed out of [the] vertical and horizontal axis," and submit four Figures of various aim range possibilities and ask whether they conform to Standard No. 108.

Your Figure 1 represents a literal interpretation of S7.8.3 and S7.8.4, depicting vertical and horizontal aim tolerances. However, these are not meant to be mutually exclusive. At any point within the +/- 4degree vertical aim the horizontal aim must be adjustable +/- 2.5 degrees and vice versa, in order to ensure that headlamp aim is correct over the broadest possible range within both the vertical and horizontal directions. This means that Figure 1, as we interpret it, does not represent the correct interpretation of S7.8.3 and S7.8.4 when these paragraphs are read together.

Figure 4 represents our interpretation of Standard No. 108 describing the full rectangle of aiming possibilities created by the plus and minus aspects of the vertical and horizontal aim tolerances. Because Figures 2 and 3 with their "lozenge" and "ellipse" aiming areas respectively do not cover the full range of horizontal aim over the full vertical range of +/- 4 degrees they do not represent a correct interpretation of Standard No. 108.

I hope that this answers your questions.

Sincerely,
John Womack
Acting Chief Counsel

ref:108

d.9/11/97

ID: 15823.nhf

John L. Oberdorfer, Esq.
Eric A. Kuwana, Esq.
Patton Boggs, L.L.P.
2550 M Street, N.W.
Washington, DC 20037-1350

Dear Mr. Oberdorfer and Mr. Kuwana:

This responds to your August 22, 1997, inquiry about whether the R-Series Rough Terrain Lift Trucks (lift trucks) manufactured by your client, Eagle-Picher Industries, are motor vehicles that would have to comply with the applicable Federal motor vehicle safety standards. You state that the lift trucks are designed and manufactured to lift heavy loads on rough terrain at off-road sites and are used at industrial and construction locations for that purpose. You also state that the lift trucks operate on public roads in exceptional circumstances only and are generally towed or carried on a flat bed truck when moved over public highways. On the basis of the information you provided, it appears that the lift trucks are not motor vehicles.

By way of background information, the National Highway Traffic Safety Administration (NHTSA) interprets and enforces the Federal motor vehicle safety standards. NHTSA's statute defines the term "motor vehicle" as follows:

[A] vehicle driven or drawn by mechanical power manufactured primarily for use on the public streets, roads, and highways, but does not include a vehicle operated only on a rail line. 49 USC 30102(a)(6).

Whether NHTSA considers the lift trucks to be motor vehicles depends on their use. In the past, we have concluded 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-road use of the equipment is merely incidental and is not the primary purpose for which they were manufactured. Other construction 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, since the on-highway use is more than "incidental."

Based on the information you provided, it appears that the lift trucks are not "motor vehicles" within the meaning of the statutory definition. This conclusion is based on the statements in your letter and the enclosed brochure that the lift trucks spend extended periods of time at construction or work sites and use the public roads in rare circumstances only, such as crossing a public road to reach an off-road area. It is also based on your statement that the lift trucks are generally towed or loaded onto a trailer or flat bed truck when moved between job sites. Thus, the agency would consider the use of the lift trucks on the public roads to be merely incidental. Since these types of lift trucks are not motor vehicles, they would not be subject to the Federal motor vehicle safety standards.

If NHTSA were to receive additional information indicating that the lift trucks use the public roads on more than an incidental basis, the agency would reassess this interpretation. If the lift trucks were found to be motor vehicles, Eagle-Picher Industries would be a motor vehicle manufacturer, and would be required to submit identification information to this agency in accordance with 49 CFR Part 566, Manufacturer Identification. Eagle-Picher would also be required to certify that each vehicle complies with all applicable Federal safety standards. This certification procedure is set out in 49 CFR Part 567.

Please note that some states may require an off-road vehicle to be registered. Thus, you may wish to contact the Department of Motor Vehicles in any state in which Eagle-Picher's products will be sold or operated about requirements for the use of the lift trucks.

I hope this information is helpful. If you have further questions regarding NHTSA's safety standards, please contact Nicole Fradette of my staff at this address or by telephone at (202) 366-2992.

Sincerely,
John Womack
Acting Chief Counsel
ref:VSA
d.10/1/97

ID: 15826.ztv

Herr Olaf Schmidt
Hella KG Hueck & Co.
Rixbecker Strabe 75 75
59552 Lippstadt
Germany

Dear Herr Schmidt:

This is in reply to your letter of August 15, 1997, to Richard Van Iderstine of this agency, concerning the conformity of a new headlamp design to the requirements of Federal Motor Vehicle Safety Standard No. 108.

You report that Hella has designed a headlamp to be visually aimable in accordance with the amendments to Standard No. 108 that were published on March 10, 1997. To facilitate the production of new vehicles on which the headlamp will be installed, the headlamp will incorporate a bubble-vial type of vehicle headlamp aiming device (VHAD) which is not required for visually aimable headlamps. The headlamp will be provided "with an initial pre-setting so that the location of the cut-off line [of the beam] corresponds very close (less than one tenth of a degree) to the indication of the bubble scale." You assure us that "The VHAD will not interfere [with] the aiming and performance of the headlamps" and that "[t]his auxiliary vertical VHAD is intended as a production aid and will not be mentioned in the owner's manual of the relevant car."

Paragraph S7.8.5. of Standard No. 108 in pertinent part requires headlighting systems installed on motor vehicles to "be aimable with at least one of the following" methods, which are specified as an externally applied aiming device, an on-vehicle headlamp aiming device, or by visual/optical means, each method to be "as specified" by a cited paragraph of Standard No. 108. This means that a headlamp may be both visually/optically aimable and aimable using a VHAD. However, the VHAD must conform to the requirements of Standard No. 108, one of which is that it be capable of horizontal aim adjustment. The Hella "auxiliary VHAD" does not include this feature. Therefore, the headlamp design you contemplate would appear not to conform to Standard No. 108.

If you have any further questions, please do not hesitate to ask us.

Sincerely,
John Womack
Acting Chief Counsel
ref:108
d.2/18/98

ID: 15845.ztv

Mr. Jay Townley
Jay Townley & Associates
N1367 Southern Road
Lyndon Station, WI 53944-9708

Dear Mr. Townley:

This is in reply to your letter of August 25, 1997, asking whether ZAP electric bicycles are exempt from NHTSA jurisdiction.

You have enclosed a copy of a ZAP owner's manual for our information.

We have previously corresponded with you on the subject of electric bicycles. At that time (February 16, 1993) we advised you that there was a significant difference between the Yamaha pedal-assisted bicycle and motorized bicycles and mopeds. The propulsion systems of the latter vehicles enable them to operate on power without pedaling. However, the power assist of the Yamaha disengaged when torque at the pedals was less than 11 pounds, which meant that the system will not operate on its own, in the absence of muscular effort. We concluded that, in light of the combination of a low maximum speed while operating on power (the power of the Yamaha disengages when speed is more than 15 mph) and the fact that power is only provided if the operator is providing muscular effort (by continuously pedalling), the Yamaha was not a "motor vehicle" subject to our jurisdiction. We noted that, even with power assist, the operation of the Yamaha is essentially the same as that of a bicycle, i.e., the operator must pedal under the same circumstances as a traditional bicyclist and the speed of the Yamaha does not differ from the speed of traditional bicycles.

The ZAP presents a different situation. Page 8 of the ZAP manual depicts three modes of "Engagement Lever Operation": "Rider Only," "Motor-Assisted," and "Full-Time Power-Assisted" for the operation of the vehicle. You will note that one of them allows the ZAP to be operated at all times by electric power alone, and without any muscular input of the rider. Page 13 of the ZAP manual depicts two "Performance Optimization Charts." The top chart "indicates the distance the bike will travel while people of various weight are not pedaling." The chart indicates a range of 17 miles for a 75-pound rider at the low speed setting for the electric motor, down to a range of 4 miles for a 245-pound driverat the high speed setting for the electric motor.

Although ZAP does not recommend running the motor without pedaling, its electric bicycle is clearly designed to do so and, without muscular input from the rider, can propel the vehicle at speeds up to 10 mph at distances up to 17 miles. Under 49 U.S.C. 30102(a)(6), a "motor vehicle," is defined in pertinent part, as "any vehicle that is driven or drawn by mechanical power, manufactured primarily for use on the public streets, roads, and highways." We have concluded that the ZAP meets this definition, and is a motor vehicle, notwithstanding the fact that it can also be operated by pedals alone, or by pedals assisted by the motor.

It therefore appears to be subject to the Federal motor vehicle safety standards that apply to motorcycles and motor driven cycles, notwithstanding any representations to the contrary by its manufacturer.

Your client may wish to be advised that, under 49 U.S.C. Chapter 301, any person who sells a motor vehicle that is not in compliance with the Federal motor vehicle safety standards is subject to a civil penalty of up to $1,100 per violation, up to $880,000 for any related series of violation.

If you have any questions, you may refer them to Taylor Vinson of this office (202-366-5263).

Sincerely,
John Womack
Acting Chief Counsel

ref:571

d.9/11/97

ID: 15847.ztv

Mr. Mitch L. Williams
President & CEO
Hella, Inc.
P.O. Box 2665
Peachtree City, GA 30269

Dear Mr. Williams:

This is in reply to your letter of August 12, 1997, to Richard Van Iderstine of this agency. For your future reference, interpretations of the Federal motor vehicle safety standards, including Standard No. 108, are properly addressed to the Office of Chief Counsel.

You write that Hella "is currently working with a vehicle manufacturer to provide a fog lamp kit to be initially offered and installed at the car dealer, or vehicle manufacturer zone level, with a possible introduction later for the assembly line." Some of the vehicles will have daytime running lamps (DRL), and on such vehicles, the manufacturer wants to tie the fog lamps into the DRL circuit so that the fog lamps will illuminate when the vehicle is started and be extinguished when the upper beam of the headlamps are activated (if the fog lamp switch is in the "on" position), or when the ignition is turned off. You ask whether we concur with your conclusion that you see no problem with this arrangement.

I regret to say that we cannot concur with your conclusion. Although Standard No. 108 does not regulate fog lamps, it does regulate DRLs. Paragraph S5.5.11 provides that "Any pair of lamps on the front . . ., whether or not required by this standard, other than parking lamps or fog lamps, may be wired [as DRLs]. . . ." Therefore, wiring fog lamps to operate as DRLs is expressly forbidden by Standard No. 108. This means that the fog lamps cannot be tied into the DRL circuit on those vehicles equipped with DRLs.

If you have further questions, you may refer them to Taylor Vinson of this Office (202-366-5263).

Sincerely,
John Womack
Acting Chief Counsel
ref:108
d.10/1/97

ID: 15850.wkm

Mr. Yousef. S. Al - Bahar
Public Authority for Industry
State of Kuwait
Post Office Box Safat No. 4690
Code 13047, Kuwait