ID: 2810yy

Mr. Jack Barben
President
Custom Form Mfg. Inc.
2100 Industrial Pkwy.
Elkhart, IN 46516

Dear Mr. Barben:

This replies to your letter of October 8, l990, with respect to a lighted side rail for pickup trucks that you wish to sell in the aftermarket. The rail would be offered in colors of amber, hot pink, and hot yellow. Your literature shows the rails as mounted immediately above the right and left longitudinal sides of the pickup bed. You would like to know our position on compliance of this product.

Aftermarket lighting equipment is permissible under the statutes and regulations of our agency as long as its installation by a manufacturer, distributor, dealer, or motor vehicle repair business does not render inoperative, in whole or in part, any element of design or device installed in accordance with a Federal motor vehicle safety standard. You have informed us that your literature warns against installation of the device in any manner that would orient it towards the front or rear of the vehicle, rather than along its sides. Also, you would provide instructions "for separate fusing of the electrical supply lines." Under these circumstances, we believe that there would not be any rendering inoperative of the lighting equipment required by Motor Vehicle Standard No. l08. Further, the lighted side rails would appear to enhance the conspicuity of the vehicle from the side, even though the colors you intend to offer are not the red of the vehicle's rear side marker lamp and reflector.

We are not in a position to advise whether the lighted side rails would comply with the laws of any State in which a vehicle so equipped is registered or operated. We recommend that you ask the opinion of the American Association of Motor Vehicle Administrators, 4600 Wilson Boulevard, Arlington, Va. 22203 on this issue.

You have commented that "This is a proprietary product and would appreciate your treatment as such." However, based upon a telephone conversation between you and Bill Fox of my staff, I understand that you do not expect confidential treatment of any of the information in your letter. Therefore, both your letter and our reply will be made available for inspection by the public in accordance with our policy on interpretations.

Sincerely,

Paul Jackson Rice Chief Counsel

ref:l08 d:l/25/9l

ID: 2811yy

Aggie Szilagyi, Esquire
Senior Counsel
New Jersey State Legislature
Office of Legislative Services
State House Annex
CN-068
Trenton, NJ 08625

Dear Ms. Szilagyi:

Thank you for your letter on behalf of Senator Ronald L. Rice requesting the views of the National Highway Traffic Safety Administration (NHTSA) on whether the Motor Vehicle Theft Law Enforcement Act of 1984 (Theft Act)(15 U.S.C. 2021 et seq.) would preempt provisions of New Jersey Senate Bill (SB) 3434. I apologize for the delay in this response. It is my understanding that SB 3434 has been reintroduced in this session of the legislature as SB 876. For the reasons described below, it is our opinion that the provisions in the bill for the mandatory antitheft devices on certain car lines would be preempted by the Theft Act.

We understand that SB 876 would prohibit the sale or lease of a passenger automobile that is at or over the "estimated median manufacturer's suggested retail price for all passenger automobiles" unless it is equipped with a "passive anti-theft device" that "automatically activates upon turning off the motor of a vehicle and causes an alarm or ignition cut-off to engage." Violation of this provision would be punishable by a fine.

Although the Theft Act contains an explicit preemption provision (15 U.S.C. 2031) for parts marking systems which would not be triggered by SB 876, the bill would nonetheless create an obstacle to the accomplishment and execution of the overall Congressional objectives embodied in the Theft Act and would therefore be preempted.

The objective of the Theft Act was to establish a least-cost antitheft system, with a parts-marking system being the system of choice. The Congress specified a $15-per-car limit for the cost of the system (15 U.S.C. 2024(a)), and made it clear that the alternative of installing antitheft devices was to be at the petition of the manufacturer, under procedures designed to ensure the effectiveness of such devices (15 U.S.C. 2025).

SB 876 would not only have the effect of requiring the installation of antitheft devices in vehicles that are marked under the Theft Act, thereby imposing a greater cost on the owners, but could require a vehicle with an antitheft device approved under the Theft Act to be equipped with a second antitheft device if the first device did not operate in the manner prescribed by SB 876. These effects would prevent the accomplishment of the Theft Act's objectives, and would thus satisfy the conditions for general preemption found by the Supreme Court in Hines v.Davidowitz, 312 U.S. 52 (1941) and followed in subsequent cases (Schneidewind v. ANR Pipeline Co., 485 U.S. 293 (1988); Northwest Central Pipeline Corporation v. State Corporation Commission of Kansas, (109 S. Ct. 1262 (1989)).

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

Sincerely,

Paul Jackson Rice Chief Counsel

ref: Part 541 d:l/l4/9l

ID: 2812o

Mr. Joseph P. Faia
9703 Lilac Ave.
Garfield Heights, OH 44l25

Dear Mr. Faia:

This is in reply to your recent undated letter regarding a vehicle lighting accessory for trucks and trailers. It appears from your letter and enclosed diagram that the purpose of the device is to illuminate "two dimensional displays" on the side or rear of vehicles. A number of such devices would be required, depending on the size of the display to be illuminated. You have not stated the candlepower of the device. Reference is made to a transparent section through which the light is emitted, and to a "semi-translucent" section which is "tinted and arranged to function as the running lights commonly seen on trailers." The color of the light is not specified, but we shall assume that it is amber or red when emitted through the "semi-translucent" sections, and white when emitted through the transparent sections to illustrate the display.

You have asked four questions with regard to this device. The first question is whether it can be used as a "combination side illumination and marker light." As a general rule, supplementary lighting devices such as yours are permissible as original equipment if they do not impair the effectiveness of lamps, reflective devices, and associated equipment required by Federal Motor Vehicle Safety Standard No. l08. They are permissible as aftermarket equipment under Federal law if their installation by a person other than the vehicle owner does not "render inoperative in whole or in part" lighting equipment installed in accordance with Standard No. l08, but their legality is otherwise determined by the laws of the States in which the vehicle is registered and operated. As for whether your device may be used as a combination side illumination and marker light, if you mean as the only side marker lamp, the combination per se is not prohibited by Standard No. l08. However, the side marker lamp in such a combination must comply with photometric, location, color, and other requirements for such lamps, and its effectiveness must not be impaired. One example of impairment would be if the glare from the device's white light masked the conspicuity of the side marker. As a combined device supplementing the required side marker lamp, it is permissible if it does not impair the effectiveness of the required side marker. For purposes of this letter and with respect to Standard No. 108 we equate "impairment of effectiveness" with "partially inoperative."

Your second question is whether it can be used "as a backup light and parking light, to be used only in these situations." It is unclear whether you intend the device to be the backup lamp required by the standard, or one that supplements it. If the former, its use is permissible provided that the backup function meets all requirements of Standard No. l08 that are specified for backup lamps, such as color and photometrics, and provided that the display function does not impair the effectiveness of the backup function. Because the color of light in both functions would be identical, care must be taken to ensure that the backup signal is clearly perceived. If you intend it as a supplementary backup lamp, it is permissible as long as it does not impair the effectiveness of the primary backup lamp. Your term "parking light" is unclear; because front parking lamps are not required on vehicles whose overall width is 80 inches or more, I assume you mean a lamp on the rear of a vehicle that is not a backup lamp but which can be used to indicate that the vehicle is moving slowly while being parked. The device appears permissible as long as it does not impair the effectiveness of the other lighting equipment on the rear.

Your third question is whether the device may be used as a stop lamp, activated only when the brake is applied. Two devices may be used as the original equipment stop lamps, provided all requirements of Standard No. l08 are met and that the display function does not impair the effectiveness of any other lighting equipment. One or more devices could be used as supplementary stop lamps under the same restriction.

Your final question is whether it may be used alone as a display light. The answer is yes, subject to the impairment prohibition. The only specifically prohibited use of the lamp is its combination with a clearance lamp, a configuration which appears depicted by the uppermost lights, front and rear, of your Figures 2 and 3.

I hope that this answers your question.

Sincerely,

Erika Z. Jones Chief Counsel

ref:VSA:108 d:8/l9/88

ID: 2812yy

Ms. Carol C. Verenes
District Transportation Supervisor
Aiken County Public Schools
843 Edgefield Avenue, N.W.
P.O. Box 1137
Aiken, South Carolina 29802-1137

Dear Ms. Verenes:

This responds to your letter of September 7, 1990 requesting "written correspondence relative to the U.S. Department of Transportation, National Highway Traffic Safety Administration, adopted safety standards effective April 1, 1977, which applies to vans transporting school children." Additionally, you requested "information pertaining to Federal Motor Vehicle Safety Standards No. 220, 221, and 222" because your district is considering modifying vans to transport school children.

By telephone conversation with Mary Versailles of my staff on September 28, 1990, you stated that your school district has stopped using its 12-15 passenger vans to transport school children, because you had been informed that such use violated federal law. You requested information on what needed to be done to modify your vans to comply with Federal school bus regulations. You also asked if a dealer who had sold your school district new vans which did not comply with school bus regulations would be required to modify the vans or replace them with complying vans.

I am pleased to have this opportunity to clarify the operation of Federal law as it applies to school buses. Federal law regulates the manufacture and sale of new school buses. The National Highway Traffic Safety Administration (NHTSA) defines "school bus" as a motor vehicle designed for carrying 11 or more persons, including a driver, and sold for transporting students to and from school or school-related events. Note that in determining whether a vehicle is a school bus, one must consider both the vehicle's seating capacity, and its intended use. Thus, under federal law, a 12-15 passenger van is considered a school bus if its intended use is to transport school children.

NHTSA has issued Federal motor vehicle safety standards applicable to all new school buses. It is a violation of Federal law for any person to sell as a school bus any new vehicle that does not comply with all school bus safety standards. On the other hand, without violating any provision of Federal law, a school district may use a vehicle to transport school children, even if the vehicle does not comply with Federal school bus regulations. This is so because the individual States have authority over the use of vehicles. Therefore, to determine whether your school district may use noncomplying vans to transport school children, you must look to state law. In addition, using noncomplying vans as a school bus could result in increased liability in the event of an accident. You might want to consult your attorney and insurance company to discuss this matter.

Your first question asked what must be done to bring your vans into compliance as a school bus. Again, I must emphasize that there is no regulation under Federal law requiring your school district to retrofit your vans to comply with federal regulations. However, the following is a list of all Federal motor vehicle safety standards that include requirements for school buses:

Standards No. 101 through 104; Standard No. 105 (school buses with hydraulic service brake systems); Standards No. 106 through 108; Standards No. 111 through 113; Standard No. 115; Standard No. 116 (school buses with hydraulic service brake systems); Standards No. 119 and 120; Standard No. 121 (school buses with air brake systems); Standard No. 124; Standards No. 201 through 204 (school buses with GVWR of 10,000 pounds or less); Standard No. 205; Standards No. 207 through 210; Standard No. 212 (school buses with GVWR of 10,000 pounds or less); Standard No. 217; Standard No. 219 (school buses with GVWR of 10,000 pounds or less); Standard No. 220; Standard No. 221 (school buses with GVWR greater than 10,000 pounds); Standard No. 222; Standards No. 301 and 302.

Some of the standards which have unique requirements for school bus vehicles include, but are not necessarily limited to, Standards No. 105, 108, 111, 217, and 301; other standards (220, 221, and 222) are applicable only to school bus vehicles. Modification of the vehicles to comply with Standards No. 220 and 222 will be difficult and require recertification. The Federal motor vehicle safety standards are contained in Title 49 of the Code of Federal Regulations (CFR), Part 571. You may find a copy of 49 CFR Part 571 at a Federal Depository Library in your State. If you so choose, you may purchase a copy of the volume of Title 49 which includes Part 571 from the United States Printing Office (GPO), Washington, D.C., 20402, (202) 783-3238.

Your second question asked whether the sale between the dealership and the school could be dissolved if you determined that any purchases of new vans did not comply with the regulations for school buses. While we have no regulations which void or "dissolve" sales of noncomplying motor vehicles, the school might be able to contact the dealership that sold the noncomplying school buses and arrange to have the vehicles repurchased. In addition, if you believe that you had been sold noncomplying vehicles, and that the dealer knew of your intended use, the school should contact NHTSA's Office of Vehicle Safety Compliance, at the address given above, and inform them of the apparent violation of federal law. In the past, many dealers who have been notified by NHTSA of the illegality of selling noncomplying vans as school vehicles repurchased the vehicles that were sold in violation of the law. However, these instances involved essentially new vehicles. Section 154(a)(2)(A)(iii) of the Safety Act specifies the repurchase remedy as, "the purchase price of such motor vehicle in full, less a reasonable allowance for depreciation" (emphasis added). Thus, it may be more cost efficient for the school district to use these vans for other purposes within the district or transfer them to other county functions. For future vehicle purchases, it may be advisable to inform dealers specifically that the vehicles will be used for transporting school children.

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

Sincerely,

Paul Jackson Rice Chief Counsel

ref:57l.3 d:l/l5/9l

ID: 2813yy

Mr. Wayne Trueman
Plant Manager
BX-l00 International
2550 Appian Way
Suite 2ll
Pinole, CA 94564

Dear Mr. Trueman:

This responds to your letter asking about requirements for items to be placed in a truck's air brake system. You are particularly interested in requirements that would apply to two new products you are developing. According to your letter, the products will "have the BX-l00 Brake Equalizer integrally combined with a Quick Release valve and another with a Relay valve."

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

NHTSA does not have any specific regulations covering brake equalizers, quick release valves, or relay valves. However, since these devices are tied into a vehicle's air brake system, they could affect a vehicle's compliance with Federal Motor Vehicle Safety Standard No. l2l, Air Brake Systems. That standard applies to almost all new trucks, buses, and trailers equipped with air brake systems.

If one of your devices is installed as original equipment on a new vehicle, the vehicle manufacturer is required to certify that, with the device installed, the vehicle satisfies the requirements of all applicable safety standards. If the device 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 alteration. If the device is installed on a used vehicle by a business such as a garage, the installer would not be required to attach a certification label. However, it would have to make sure that it did not knowingly render inoperative, in whole or part, any device or element of design installed on or in a motor vehicle or item of motor vehicle equipment in compliance with an applicable Federal motor vehicle safety standard.

You should also be aware of the requirements of Federal Motor Vehicle Safety Standard No. l06, Brake Hoses, which specifies requirements for motor vehicle brake hose, brake hose assemblies, and brake hose end fittings. That standard applies to new motor vehicle equipment as well as to new motor vehicles. You should check to see if any parts of your brake devices are subject to the requirements of Standard No. l06.

I am enclosing a copy of an information sheet which identifies relevant Federal statutes and NHTSA standards and regulations affecting motor vehicle and motor vehicle equipment manufacturers. I regret that we are unable to provide information concerning regulations other than those of NHTSA which may apply to your products. You may wish to contact the Federal Highway Administration's Office of Motor Carrier Standards concerning whether any of its regulations are relevant to your products. You may also wish to contact appropriate State authorities, and/or a local attorney, for advice about state and local regulations.

Sincerely,

Paul Jackson Rice Chief Counsel

Enclosure ref:l06#l2l d:ll/20/90

ID: 2816o

The Honorable Douglas H. Bosco
House of Representatives
Washington, DC 20515

Dear Mr. Bosco:

This is in reply to your letter of June l6, l988, with reference to your constituent Jerry Yost of Occidental. Thank you for enclosing our previous correspondence on Mr. Yost's C-More Light invention. This device is a relay which would allow a headlamp's lower beam to remain in operation when the upper beam is activated. In my reply of August 3, l987, I advised you that the Federal motor vehicle lighting standard explicitly prohibits simultaneous activation of upper and lower beams in four-lamp headlighting systems other than the one we call Type F (S4.5.8 of 49 CFR 57l.l08 Motor Vehicle Safety Standard No. l08). I explained that our historical concern has been that the maximum candlepower limitations of the Federal standard might be exceeded.

In your latest letter, you have enclosed a copy of a test report by Industrial Testing Laboratories and a letter from the California Highway Patrol. You have asked the steps, if any, that Mr. Yost should take to market legally his device. The test report is intended to show that maximum candela will not be exceeded when the device is used in a four-lamp headlamp system. California advised that the device appeared legal to install on vehicles equipped with Type F headlamp systems, and that "this system is also permitted by California law as long as the photometric output is within the standards established for any other type of headlight. The ITL tests appear to show compliance".

We have reviewed the ITL test report, and find it indicative of the features and limitations of Mr. Yost's system. The test report shows a failure of the dual filament 2A1 lamp (second column from the left) at test point 4D-V where 3490 candlepower is measured. Note the maximum limitation of 2500 candlepower at that test point (third column from the right, same line). Contrasted with this is an unusually low reading of 2540 candlepower for the same test point with the single filament 1A1 lamp (third column from the left) when up to 5000 candela is allowed (fourth column from the right). The net result, however, is that the combined maximum of 6030 candlepower (fourth column from the left) is well within the allowable 7500 maximum of Standard No. l08 (first column from the right). In essence, the test report indicates that the light at test point 4D-V produced by the system under test does not achieve the balance contemplated by the standard, although the light at other test points meets the requirements of the standard.

While the test report indicates that a system using the lamps tested might conform to Standard No. l08, this was achieved by using what appear to be two lamps of moderate performance. The agency believes it likely that replacement headlamps for such a system would more likely approach the maxima prescribed for 4D-V and other test points for Type 1A1 and 2A1 headlamps with the result that simultaneous operation of upper and lower beams would exceed the established limits. In other words, although an original equipment headlighting system using the relay might meet Federal photometric specifications, there is no assurance that replacement lights would. Type F systems have been designed to preclude exceeding the maxima. Thus, our concern remains for lighting systems using lamps other than Type F. The agency's views on simultaneous operation are discussed in further detail in a Federal Register notice published in l986, a copy of which I enclose (Docket No. 81-11; Notice l4).

As I indicated before Mr. Yost's device may be legally installed as original or aftermarket equipment on any passenger car equipped with a Type F headlamp system. Use with any other original equipment headlighting system is expressly prohibited by Standard No. l08. As for aftermarket applications other than Type F, he should be aware of the statutory section (15 USC 1397(a)(2)(A)) prohibiting manufacturers, distributors, dealers, and motor vehicle repair businesses from rendering inoperative, in whole or in part, any equipment installed in accordance with a safety standard if installation of the relay would result in a noncompliance with Standard No. l08.

We are providing a copy of this letter to the California Highway Patrol so that it may be aware of our views on this subject.

Mr. Yost and the agency share a common desire to improve foreground lighting, a subject currently under study at NHTSA. We appreciate his interest in motor vehicle safety.

Sincerely,

Erika Z. Jones Chief Counsel

Enclosure

cc: Department of California Highway Patrol P.O. Box 942898 Sacramento, CA 94298-0001

ref:108 d:8/l9/88

ID: 2830o

AIR MAIL

Mr. Mamoru Arisaka Manager, Automotive Lighting Homologation Sect. Stanley Electric Co., Ltd. 2-9-13, Nakameguro, Meguro-ku Tokyo 153, JAPAN

Dear Mr. Arisaka:

This is in reply to your letter of July 7, 1988, with respect to a motorcycle lighting device called the "rolling headlamp." The headlamp is designed to have its vertical plane always perpendicular to the ground regardless of the inclination of the motorcycle. You have asked whether such a device is legally permissible.

Motor Vehicle Safety Standard No. l08 does not prohibit alteration of the mounting angle of a headlamp. Although paragraph S4.3.1 requires each lamp to "be securely mounted on a rigid part of the vehicle," your lamp appears to be "securely mounted" even if it is able to rotate.

I hope this answers your question.

Sincerely,

Erika Z. Jones Chief Counsel

/Ref:108 d:8/26/88

ID: 2831o

Mr. Paul A. Reneau
9261 North 60th Street
Brown Deer, WI 53223

Dear Mr. Reneau:

This is a response to your undated letter which this agency received in January 1988. I apologize for the delay in this response. In your letter, you presented a schematic and an engineering explanation of a power window system design and operation, and asked whether the system meets Federal safety standard 118, Power-operated Window Systems (49 CFR 571.118). Based on my understanding of the information enclosed with your letter, it appears that your power window system would comply with Standard 118.

As I understand your system description, there are two electrical circuits that control power window operations. In the principal circuit, when the vehicle ignition key system is in the "ON" or "ACCESSORY" position, the power windows are operable. In most power-operated window systems, turning the ignition key to the "OFF" position means that the power windows no longer are operable.

However, in your system, a second, parallel circuit connects to the power window motor, and provides an energy source to allow an operator to close a power window when the ignition key is in the "OFF" position. The parallel energy source permits operation only for a limited time period controlled by the electronic circuitry. My understanding is that with your design, the parallel circuit includes door switches which stop power window operation irrespective of the ignition key system position, whenever either vehicle front door is opened during the window closing sequence. According to your diagram and explanation, in such a circumstance, an operator must close the door, and return the ignition key to the "ON" or "ACCESSORY" position to reactivate the power window system.

Paragraph S3 of Standard 118 specifies that power window systems may be closed only under certain listed conditions. One of those conditions is when the ignition key is in the "ON" or "ACCESSORY" position, as specified in S3(a). When the ignition key is in the "OFF" position, the power windows may be closed only under the conditions described in S3(b) (by muscular force unassisted by a vehicle power source), S3(c) (upon activation of a key-locking system on the exterior of the vehicle), or S3(d). Paragraph S3(d) reads as follows:

During the interval between the time the locking device which controls the activation of the vehicle's engine is turned off and the opening of either of a two-door vehicle's doors or, in the case of a vehicle with more than two doors, the opening of either of its front doors.

Based on my understanding of the information you supplied, the only time the power windows in your system can be closed with the ignition key in the "OFF" position is during the interval between engine deactivation and opening of either of the vehicle's front doors. Standard 118 expressly permits this, so your system appears to comply with that standard.

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

Sincerely,

Erika Z. Jones Chief Counsel

ref:118 d:8/26/88

ID: 2832o

Jerry Swisher, Esq.
Cooper Tire & Rubber Co.
Findlay, OH 45840

Dear Mr. Swisher:

This responds to your letter of May 20, 1988, in which you sought an interpretation of Standard No. 109, New Pneumatic Tires - Passenger Cars (49 CFR 571.109). Specifically, you asked if either of three proposed courses of action would comply with the labeling requirements specified in S4.3.2 of Standard No. 109. That section reads as follows: "Each tire shall be labeled with the name of the manufacturer, or the brand name and number assigned to the manufacturer in the manner specified in Part 574." None of your proposed courses of action would satisfy this requirement, as explained below.

You first asked if it is permissible to have no identification on the sidewall as to the name of the manufacturer or the brand name owner, but to simply use the identification numbers assigned to Cooper Tire under Part 574. Section S4.3.2 of Standard No. 109 explicitly requires each tire to be labeled with the manufacturer's name or a brand name and the identification number assigned to the manufacturer. Tires that are identified solely by an identification number would not comply with this requirement.

Second, you asked if a tire could be labeled with three different brand names. Section S4.3.2 uses the singular tense to identify the name that must appear on the sidewall (name of the manufacturer or the brand name) and connects the alternative with the disjunctive "or." This grammatical structure indicates that only one name, either that of the actual manufacturer or the brand name owner, shall be labeled on the tire. The agency chose this grammatical structure to ensure that consumers would not be confused about the identity of the brand name or manufacturer of the tire. Accordingly, S4.3.2 prohibits Cooper from selling passenger car tires labeled with the names of three different brand name owners.

Third, you asked if a generic term such as "All Season" or "Performance" would satisfy the requirement of S4.3.2 that either the name of the manufacturer or a brand name be labeled on the tires. Clearly, a generic term like "Performance" is not the "name of the manufacturer," Cooper in this case.

The "brand name" refers to the name under which a tire is sold at retail, whether it is identical to the manufacturer's name (e.g., Firestone), a name owned by the manufacturer and used in place of its corporate name (i.e., a house brand, such as Falls that is manufactured by Cooper), or a name owned by someone other than the manufacturer (i.e., a private brand such as Atlas that is made by several manufacturers). My understanding of this proposed course of action is that the tires would be advertised and sold at retail as tires made by one of the three brand name owners, presumably using its brand name, not under the name "All Season" or "Performance." Therefore, these generic terms would not be considered brand names for the purposes of section S4.3.2.

If you have any further questions or need additional information on this subject, please feel free to contact Marvin Shaw of my staff at this address or by telephone at (202) 366-2992.

Sincerely,

Erika Z. Jones Chief Counsel

ref:109 d:8/26/88

ID: 2833o

William K. Baldwin, Sr.
14219 Decatur Drive
Magalia, CA 95954

Dear Mr. Baldwin:

This responds to your May 7, 1988 letter, concerning the "Baldwin Rear-View Mirror Safety System." You stated that this mirror system contains both a flat mirror of unit magnification and a convex mirror, and stated your belief that this mirror system "offers the latest in technology and safety." You requested that the National Highway Traffic Safety Administration (NHTSA) evaluate and approve your mirror system. We have no authority to approve any motor vehicles or motor vehicle equipment, as explained below.

The National Traffic and Motor Vehicle Safety Act of 1966, as amended (the "Safety Act") authorizes this agency to issue safety standards applicable to motor vehicles and items of motor vehicle equipment. The Safety Act also requires that these safety standards establish minimum levels of performance for vehicles or equipment. Once the necessary performance level has been established, vehicle or equipment manufacturers are free to choose any means they wish to achieve the required level of performance. In other words, the safety standards do not require the use of any particular manufacturer's product; the standards permit the use of any manufacturer's product that achieves the necessary performance level. Section 114 of the Safety Act (15 U.S.C. 1403) requires manufacturers to certify that each of its vehicles or items of motor vehicle equipment complies with all applicable safety standards. Because of this provision in the law, NHTSA cannot approve, endorse, or certify any motor vehicle or item of motor vehicle equipment.

NHTSA has exercised its authority to establish performance requirements for new vehicles in Standard No. 111, Rearview Mirrors (49 CFR 571.111; copy enclosed). As you will see, Standard No. 111 establishes performance and location requirements for the rearview mirrors installed in any new vehicle. This means that vehicle manufacturers must certify that each of their new vehicles complies with the applicable requirements of Standard No. 111. Standard No. 111 does not apply to rearview mirrors as items of equipment. The effect of this is to place the certification responsibility for original equipment rearview mirror systems entirely on the vehicle manufacturer. You as the manufacturer of the mirror are not required to certify that your mirrors comply with Standard No. 111 or any other standard.

With respect to your new mirror system, NHTSA has said in many previous interpretations that vehicle manufacturers may install mirror systems that combine flat and convex mirrors on their new vehicles, provided that the flat mirror portion by itself complies with the requirements of Standard No. 111 that are applicable to the vehicle type on which the mirror system is installed. Assuming that the flat mirror portion of your mirror system complies with the requirements of Standard No. 111 for the vehicle type on which it is to be installed, this new mirror system can legally be installed on new vehicles of that type.

Please note that the requirements of Standard No. 111 do not apply to mirrors installed as aftermarket equipment. The only limitation on such installations is set forth in section 108(a)(2)(A) of the Safety Act (15 U.S.C. 1397(a)(2)(A)). That section prohibits any manufacturer, distributor, dealer, or motor vehicle repair business from knowingly rendering inoperative any device or element of design installed on or in a motor vehicle in compliance with an applicable safety standard. The rearview mirror system in a vehicle is a device installed in compliance with Standard No. 111. If the installation of an aftermarket mirror system resulted in a vehicle no longer complying with Standard No. 111, a manufacturer, distributor, dealer, or repair business that removed a complying system and replaced it with the noncomplying system would have rendered inoperative a device (the mirror system) installed in the vehicle in compliance with Standard No. 111. Section 109 of the Safety Act (15 U.S.C. 1398) specifies a civil penalty of up to $1,000 for each violation of the "render inoperative" provision.

Again assuming that the flat mirror portion of your mirror system complies with the requirements of Standard No. 111 for the vehicle type on which it is to be installed, this new mirror system can legally be installed on used vehicles of that type. If your mirror system does not comply with the requirements of Standard No. 111 for a vehicle type, it cannot be installed on used vehicles of that type by any manufacturer, distributor, dealer, or repair business.

Please note that the Safety Act does not establish any limitations on an individual vehicle owner's ability to alter his or her own vehicle. Under Federal law, individual owners can install any mirror system they want on their own vehicles, regardless of whether that mirror system renders inoperative the vehicle's compliance with the requirements of Standard No. 111.

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

Sincerely,

Erika Z. Jones Chief Counsel Enclosures

ref:VSA#111 d:8/26/88