ID: nht75-4.3

DATE: 08/28/75

FROM: AUTHOR UNAVAILABLE; F. Berndt; NHTSA

TO: Dennis Replansky

TITLE: FMVSS INTERPRETATION

TEXT: This responds to your recent request for a discussion of what constitutes the manufacture of a new trailer when used components from an existing trailer are utilized. As you are aware, a newly-manufactured air-braked trailer must, in all but a few cases, be equipped with an air brake system that conforms to Standard No. 121, Air Brake Systems.

The use of new components in combination with used components to assemble a complete vehicle is a common practice in both truck and trailer operations. The National Highway Traffic Safety Administration (NHTSA) has recognized this commercial practice by establishing that the use of a new body on a used "chassis" that has already been certified does not constitute the manufacture of a new vehicle. In contrast, placing a used body on a new chassis that has never been certified as a vehicle has been determined to create a newly-manufactured vehicle that must be certified. This distinction did not present difficulty to trailer manufacturers in the past, when they were only required to meet the lighting requirements of Standard No. 108, Lamps, Reflective Devices, and Associated Equipment.

Since implementation of Standard No. 121, however, manufacturers have had to determine whether the particular assembly they undertake contains a used "chassis" which would not be required to meet the air brake standard. As a general matter, the NHTSA has stated that, as a minimum, the running gear (the axles, wheels, suspension, and related components sometimes known as a bogie) and main frame of the existing vehicle must be used to qualify as a used "chassis". However, the many different types of trailer construction make it difficult to determine what constitutes the main frame of some configurations. The NHTSA has concluded that the load-bearing structural member(s) which run the length of the vehicle and support the trailer will be considered to be the "main frame".

In the case of monocoque van construction, the trailer side walls which constitute the main load-bearing members through the length of the vehicle must be reused as the main frame in addition to the running gear, or else the rebuilding operation will constitute manufacture of a new vehicle.

In the case of container chassis, the box frame that consitutes the main load-bearing member through the length of the vehicle must be reused as the main frame in addition to the running gear, or else the rebuilding operation will constitute manufacture of a new vehicle.

In the case of a platform trailer, the main frame members which run the length of the trailer must be reused in addition to the running gear, or else the rebuilding operation will constitute manufacturer of a new vehicle.

In the case of a platform trailer, the main frame members which run the length of the trailer must be reused in addition to the running gear, or else the rebuilding operation will constitute manufacturer of a new vehicle.

In the case of a tank trailer in which the tank serves the purpose of and replaces frame rails, the tank must be reused as the main frame in addition to the running gear, or else the rebuilding operation will constitute manufacture of a new vehicle. If a separate frame serves as the load-bearing member through the length of the vehicle, the tank could be replaced without the operation constituting the manufacture of a new vehicle. An inner tank may be replaced without certification as a new vehicle if the inner tank does not serve as a main load-bearing member.

Modifications of existing trailers to increase or decrease volumetric capacity or vehicle length are generally permitted without recertification. For example, the barrel of a tank trailer may be lengthened in response to the new weight limits without recertification of the vehicle.

In closing, it should be noted that Bureau of Motor Carrier regulations may differ on modification or rebuilding of vehicles in interstate commerce.

SINCERELY,

BLANK, ROME, KLAUS & COMISKY

July 24, 1975

James C. Schultz, Esquire Chief Counsel U. S. Dept. of Transportation - NHTSA

A number of our clients in the motor vehicle industry have raised questions concerning the applicability to rebuilt trailers of Federal Motor Vehicle Safety Standards, especially Standard #121, Air Brake Systems. Unfortunately, Standard #121 does not define "manufacture" for purposes of determining applicability.

The following factual situation has arisen most often:

A manufacturer's customer presently has trailers, commonly called "chassis", which are used solely for hauling containers. The equipment represents a considerable investment. At present, the customer's trailers are obsolete because they cannot carry the new I.S.O. containers. The customer has asked the manufacturer to modify the old trailers to permit them to use the new I.S.O. containers. The manufacturer will do this by taking the customer's old axle assembly (composed of the axles, brakes, wheels, drums, rims, tires and certain connecting parts) and adding to that a new structural frame, namely a box frame and fittings, to permit each trailer to carry the new I.S.O. containers.

Does Standard #121, Air Brake Systems, apply to such rebuilt trailers?

We would appreciate your guidance.

DENNIS REPLANSKY

CC: TAD HERLIHY

ID: nht95-2.15

TYPE: INTERPRETATION-NHTSA

DATE: March 30, 1995

FROM: Philip R. Recht -- Chief Counsel, NHTSA

TO: Brad Rourke -- Director, Government and Community Affairs, The Electric Bicycle Company

TITLE: NONE

ATTACHMT: ATTACHED TO 2/4/95 LETTER FROM BRAD ROURKE TO PHIL RECHT

TEXT: Dear Mr. Rourke:

Thank you for your letter of February 4, 1995. I am pleased to answer your questions about the applicability of the regulations of the National Highway Traffic Safety Administration (NHTSA) to your electric-assisted bicycle.

We have reviewed Adam Englund's memorandum of January 26, 1995, which you enclosed. In general, it is a complete and accurate statement of the applicability of our regulations to motor driven cycles. We have the following comments which I hope you will find helpful.

Certification label. The appropriate regulation is 49 CFR Part 567. The statutory authority that it implements, 15 U.S.C. 1403, was recodified last summer as 49 U.S.C. 30115 without any substantive change.

Vehicle Identification Number. "15 USC 565" should be 49 CFR Part 565.

Lighting. While the analysis is correct, we note that Tables III (required equipment) and IV (location of required equipment) give a reader an immediate ready reference to motorcycle lighting equipment.

Horn. This section can be included in the one following, on controls and displays. The reference to 49 CFR "571.125 Warning Devices" is incorrect. The warning device covered by that standard is a retroreflective triangle, not a horn.

We note also that if a motorcycle is equipped with a windshield, it must comply with Standard No. 205 Glazing Materials, and that motorcycles with hydraulic brake systems are required to be furnished with brake fluid meeting Standard No 116 Brake Fluids.

You also have asked three specific questions. The first relates to the requirement of Standard No. 123 Motorcycle Controls and Displays that the rear brake be operable by the left hand (or right foot) control and the front brake operable by the right ha nd control. This is the opposite of bicycle brake systems. You believe that most riders will expect the electric bicycle to brake like a conventional one and that accidents may occur as a result of confusion. For this reason, you would like to place th e rear brake control on the right handlebar, and the front brake control on the left.

The purpose of Standard No. 123 is "to minimize accidents caused by operator error . . . . by standardizing certain motorcycle controls and displays" so that a motorcycle operator can instinctively respond to threatening situations no matter what the mac hine. Your question raises the possibility that the purpose of the standard might be defeated with respect to the electric bicycle by strict application of Standard No. 123 when it is operated by those who are familiar with bicycle braking systems (thou gh this would not be the case if the operator is switching from a motorcycle to an electric bicycle). We do have authority to exempt manufacturers for up to two years from a requirement if it would promote the development or field evaluation of a low-em ission vehicle, or if compliance would prevent the manufacturer from selling a vehicle whose overall level of safety equals or exceeds that of a complying vehicle. The exemption procedures are contained in 49 CFR Part 555. Taylor Vinson of this Office will be glad to answer any questions you have (202-366-5263). You also may petition for rulemaking, as provided in 49 CFR Part 552, for an appropriate amendment to Standard No. 123. However, in the absence of an exemption or a change in Standard No. 12 3, the braking system of the electric bicycle must operate as provided in this standard.

Your second question relates to headlighting requirements for motor driven cycles. You believe that the headlamp specified by Standard No. 108 will reduce the ability of the electric bicycle to perform at night, and, for this reason, would like to use " a high-power bicycle-type headlamp." SAE J584, incorporated by reference in Standard No. 108, permits a motor driven cycle to be equipped with a single beam headlamp. If you wish to use a headlamp that does not comply with Standard No. 108's requirement s for motor driven cycle headlamps, you must petition for an exemption, and/or for rulemaking, as discussed in the prior paragraph. In addition to allowance of a single beam headlamp, paragraphs S5.1.1.21 and S5.1.1.22 of Standard No. 108 recognize the limitations of low-powered motorcycles and permit motor driven cycles whose top speed is 30 mph or less to omit turn signal lamps, and to be equipped with a smaller less powerful stop lamp.

Your final question relates to Standard No. 123 and your wish to use a spring-loaded thumb-lever throttle. This is permissible, and no requirements are prescribed for it by Standard No. 123. Your interpretation of Standard No. 123 is correct; a twist-g rip throttle is not required, but if it is provided, it must operate in the manner set forth in the standard.

If you have any further questions, you may call Taylor Vinson of this Office (202-366-5263).

ID: nht94-4.98

TYPE: INTERPRETATION-NHTSA

DATE: December 7, 1994

FROM: Philip R. Recht -- Chief Counsel, NHTSA

TO: Roger W. Cole -- Vice President, Sales, Twin Tire U.S.A., Inc.

TITLE: None

ATTACHMT: ATTACHED TO LETTER DATED 10/18/94 FROM ROGER W. COLE TO WALTER MYERS (OCC 10419)

TEXT: This responds to your letter of October 18, 1994, received by facsimile transmission, addressed to Walter Myers of my staff. You asked whether passenger car tires that have the DOT symbol and the Uniform Tire Quality Grading Standards (UTQGS) ratings mo lded on the sidewalls may legally be sold in the United States. The short answer is yes, provided that the tires in fact comply with all applicable Federal motor vehicle safety standards (FMVSS).

By way of background information, 49 U.S.C. @ 30101, et seq. (hereinafter referred to as Safety Act), directs the National Highway Traffic Safety Administration (NHTSA) to issue FMVSSs applicable to new motor vehicles and new items of motor vehicle equip ment prior to the first retail sale of such vehicles or equipment. Tires are considered motor vehicle equipment. The Safety Act provides at 49 U.S.C. @ 30112(a) that no person may manufacture, sell, offer for sale, or import into the United States any new motor vehicle or item of motor vehicle equipment unless that vehicle or equipment complies with applicable FMVSSs and is covered by a certification to that effect issued in accordance with 49 U.S.C. @ 30115. The latter section provides in pertinent part that "Certification of equipment may be shown by a label or tag on the equipment . . . ." Thus, any new tire sold by Twin Tire must comply with all applicable FMVSS's, and be certified as doing so.

FMVSS No. 109, New pneumatic tires, a copy of which is enclosed for your information, specifies the minimum standards applicable to new passenger car tires. This standard specifies labeling and performance requirements applicable to passenger car tires, which include tubeless tire resistance to bead unseating, tire strength, tire endurance, and high speed performance. If the tires in question fail to comply with Standard No. 109, the manufacturer (or importer of noncomplying tires) must notify the pur chasers of the product and remedy the noncompliance without charge to the purchaser(s). Failure to comply with any FMVSS can also result in civil penalties of up to $ 1,000 per violation, up to a maximum of $ 800,000 for a series of related violations.

With regard to the situation you present, 49 U.S.C. 30112(b) provides two exceptions to the prohibition of 30112(a) against selling noncomplying equipment, such as tires. The first exception is that the prohibition does not apply to a person who had no reason to know, despite exercising reasonable care, that an item of equipment does not comply with applicable FMVSS's. The second exception is for a person who holds a certificate issued by the equipment manufacturer stating that the equipment complies with applicable FMVSS's, provided that the person does not know about the noncompliance. However, if Twin Tire were to sell the tires in question and those tires failed to comply with applicable FMVSS's, it is unlikely that Twin Tire could successfully argue that it qualifies for these exceptions, as a defense to an enforcement action for selling the noncomplying equipment.

You state in your letter that the tire manufacturer "breached their contract to manufacture these tires under the premise of US regulations." If the breach concerned the ability of the tires to conform to the requirements of the applicable FMVSS's, Twin Tire would be on notice that there is a reasonable possibility that the tires in question, while labeled with a DOT mark certifying compliance, do not in fact comply. In a situation where a seller has reason to believe the equipment it is selling might not comply with applicable FMVSS's, the seller must ascertain if the certification is bona fide before selling the item.

The following discussion relates to the "DOT" and other markings that you describe on the tires. Paragraph S4.3.1 of FMVSS No. 109 provides that:

Each tire shall be labeled with the symbol DOT in the manner specified in Part 574 of this chapter, which shall constitute a certification that the tire conforms to applicable Federal motor vehicle safety standards (emphasis added).

Similarly, the UTQGS, also applicable only to passenger car tires, found at 49 CFR 575.104 (copy enclosed), provides at 49 CFR 575.104(d)(1)(i)(A):

Except for a tire of a new tire line . . ., each tire shall be graded with the words, letters, symbols, and figures specified in paragraph (d) (2) of this section, permanently molded into or onto the tire sidewall . . . .

Finally, 49 CFR 574.5 requires each tire sold in the United States have a tire identification number (TIN) molded into or onto the tire sidewall by the manufacturer to facilitate recall in the event of a noncompliance or defect.

To summarize, the answer to your question is the tires in question can be sold only if they comply with all applicable FMVSSs (including Standard No. 109's labeling and performance requirements) and are so labeled in the prescribed locations with the DOT symbol, the UTQGS grades, and the TIN.

I hope this information is helpful to you. Should you have any additional questions or need further information, please feel free to contact Mr. Myers at this address or at (202) 366-2992.

ID: nht94-6.12

DATE: April 25, 1994

FROM: John Womack -- Acting Chief Counsel, NHTSA

TO: Christopher S. Spencer -- Engineering

TITLE: None

ATTACHMT: Attached to letter dated 9/8/93 from Christopher S. Spencer to R. C. Carter (OCC-9128)

TEXT:

This responds to your letter about the brake reservoir requirements of Federal Motor Vehicle Safety Standard No. 121, Air Brake Systems (49 CFR S571.121). I apologize for the delay in our response. You stated that you are developing a new reservoir design to improve reservoir volume without increasing the need for space. You asked how to test your reservoirs since you believe that "(t)he safety standard does not clarify the test criteria specifically how the reservoir is to be sealed."

By way of background information, the National Highway Traffic Safety Administration 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 and equipment meet applicable requirements. The following represents our opinion based on the facts provided in your letter.

Standard No. 121 establishes performance and equipment requirements for braking systems on vehicles equipped with air brakes. The Standard's reservoir requirements for trucks and buses are set forth in section S5.1.2. That section requires these vehicles to be equipped with one or more service reservoir systems that meet specified performance requirements. Section S5.1.2.2 specifies the following:

Each reservoir shall be capable of withstanding an internal hydrostatic pressure of five times the compressor cutout pressure or 500 psi, whichever is greater, for 10 minutes.

The purpose of this requirement is to ensure that an air brake system reservoir has a minimum level of structural integrity. NHTSA has long interpreted the term "withstand" to require that there be no rupture or permanent circumferential deformation of the reservoir exceeding one percent. At one point, the agency issued an interpretation concluding that the term "withstand" meant that a reservoir can deform only slightly and must contain the applied pressure with only a limited pressure drop at any time during the test. However, NHTSA later withdrew that interpretation because it inadvertently increased the severity of the requirement. See 42 FR 64630, December 27, 1977, and 43 FR 9149, March 6, 1978.

You asked about this requirement in connection with a reservoir design that includes a bushing on the inside of an endcap. A weld is placed around the bushing. You describe two different procedures you have used to seal the reservoir.

In what you describe as "Test Criteria 1," a socket head plug is put into

the bushing with 3 full wraps of tape. With this first method, you state that as the pressure is applied to the reservoir, the endcap starts to expand out. The bushing stretches with the endcap, and as the bushing stretches the threads are pulled away from the plug. The plug must therefore be retightened several times before the required pressure is reached. In your "Test Criteria 2," you state that a rubber grommet or washer is placed on the inside of the bushing and forced to expand to seal the bushings from the inside. You stated that this method checks the weld but removes the threads from the test. With the second method, you state that there was no failure at over five times the working pressure.

While Standard No. 121 does not specify a particular test procedure for this requirement, the language of S5.1.2.2 makes it clear that a reservoir must "withstand" for 10 minutes a condition where the reservoir is pressurized at the specified level. Therefore, in conducting a compliance test, NHTSA would pressurize a reservoir to the specified level. This would necessitate sealing the reservoir.

In considering how a particular reservoir would be sealed, it is important to bear in mind that the purpose of the test is to evaluate the reservoir's structural integrity and ability to withstand pressurization. I can offer you the following comments on the two alternative test methods you described. The first method (Test Criteria 1) would appear to evaluate a reservoir's ability to withstand pressurization. The threaded plug would appear to reasonably approximate how the reservoir would be sealed in an actual use situation. I note that the mere fact that the plug needs to be tightened during the test to achieve the specified level of pressure would not indicate a failure but would simply reflect minor air leakage around the plug.

The second method (Test Criteria 2) would not fully evaluate a reservoir's ability to withstand pressurization, since it would, as you recognized, remove the threads from the test, thereby creating an artificial seal. It is our opinion that a reservoir would not be capable of "withstanding" the specified hydrostatic internal pressure if the threads failed under such pressurization. This would represent a structural failure equivalent to a rupture.

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

ID: nht94-1.95

TYPE: Interpretation-NHTSA

DATE: March 24, 1994

FROM: John Womack -- Acting Chief Counsel, NHTSA

TO: Bob Carver -- Product Engineering, Wayne Wheeled Vehicles (Marysville, OH)

TITLE: None

ATTACHMT: Attached to letter dated 1/8/94 from Bob Carver to John Womack (OCC 9544)

TEXT:

This responds to your letter of January 8, 1994, asking two questions concerning a recent amendment to Standard No. 217, Bus Emergency Exits and Window Retention and Release (57 FR 49413; November 2, 1992). Your questions and the response to each follow .

1. There's some confusion here in our engineering department regarding the interpretation of the "Daylight Opening" and "Unobstructed Opening" as it applies to the new side emergency door specification in FMVSS 217. Page 2 shows the allowable obstructi on and the context in which "Daylight Opening" and "Unobstructed Opening" are used. Page 3 shows some measurements of our seats placed according to the "30 cm minimum" shown on page 2. Page 4 shows four different interpretations of the "Unobstructed Op ening" area. Depending on the interpretation, between 9 and 15 people may be accommodated by a side emergency door. My question is this: of the four possibilities shown, which definition of the "Unobstructed Opening" area is correct? Mr. Hott indicat ed definition 4.

The term "daylight opening" is defined in the Final Rule as "the maximum unobstructed opening of an emergency exit when viewed from a direction perpendicular to the plane of the opening." An obstruction in this context would include any obstacle or obje ct that would block, obscure, or interfere with, in any way, access to that exit when opened. In determining the "maximum unobstructed opening of an emergency exit," we would subtract, from the total area of the opening, the area of any portions of the opening that cannot be used for exit purposes as a result of the obstruction. The area measurements would be taken when viewed from a direction perpendicular to the plane of the opening.

Your question specifically concerns how the "maximum unobstructed opening" of a side door is measured when the opening is partially obstructed by a seat. In the case of the illustrated door exit, occupants would use the exit by movement along the floor. This would be considered in determining the extent of an obstruction. None of the four examples you enclosed with your letter correctly illustrates the area that would be credited for the illustrated exit. The following regions would not be credited for this exit: (1) the area visually obstructed by the seat; (2) your region A 2, an area bounded by a horizontal line tangent to the top of the seat back, a vertical line tangent to the rearmost portion of the top of the seat, the upper edge of the doo r opening, and the edge of the door forward of the seat; (3) your region A 5, an area bounded by the seat back, a horizontal line tangent to the top of the seat back, and the edge of the door forward of the seat; and (4) your region A 8, an area bounded by the seat leg, the floor, the lower edge of the seat bottom, and the edge of the door forward of the seat. Because the seat would make the last three regions unusable as exit space for a person traveling along the floor of the bus towards the exit, th ey would not be credited for that exit.

You should be aware that the agency published a notice of proposed rulemaking to amend Standard No. 217 on December 1, 1993 (58 FR 63321). The notice proposed two alternate means for determining the maximum amount of area that will be credited for all t ypes of emergency exits on school buses. The agency is currently reviewing the comments received in response to this notice. I am enclosing a copy of this notice.

2. Here is an excerpt from FMVSS 217 S5.5.3(a):

"Each school bus ....shall have the designation "Emergency Door" or "Emergency Exit" as appropriate, .... For emergency exit doors, the designation shall be located at the top of, or directly above, the emergency exit door on both the inside and outside surfaces of the bus.... For emergency window exits, the designation shall be located at the top of, or directly above, or at the bottom of the emergency window exit on both the inside and outside surfaces of the bu s."

I've seen a two-sided sticker used by other bus manufacturers. It is applied on the inside surface of a window and the same image "Emergency Door" or "Emergency Exit" can be read from both inside and outside the bus. Is it permissible for us to use thi s sort of decal, assuming it meets all other (i.e., FMVSS 302)?

The answer to your question is yes. The agency addressed this issue in an October 2, 1978, letter to Mr. E.M. Ryan of Ward Industries, Inc. I am enclosing a copy of this letter.

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

ID: nht92-2.48

DATE: 11/03/92

FROM: PAUL JACKSON RICE -- CHIEF COUNSEL, NHTSA

TO: G. THOMAS OWENS -- SENIOR ENGINEERING REPRESENTATIVE, AETNA

ATTACHMT: ATTACHED TO LETTER DATED 9-9-92 FROM G. THOMAS OWENS TO OFFICE OF THE CHIEF COUNSEL, NHTSA (OCC 7764)

TEXT: This responds to your letter requesting information regarding the legal aspects of school bus safety standards. Specifically, you requested a book or pamphlet containing the requested information.

By way of background information, under the provisions of the National "Traffic and Motor Vehicle Safety Act of 1966, 15 U.S.C. 1381 et seq. (Safety Act), the National Highway Traffic Safety Administration (NHTSA) is authorized to promulgate Federal motor vehicle safety standards that apply to the manufacture and sale of new motor vehicles, in order to reduce the number of fatalities and injuries that result from motor vehicle crashes. In 1974 Congress enacted the Motor Vehicle and Schoolbus Safety Amendments of 1974 which, by amending section 121 of the Safety Act, directed the issuance of motor vehicle safety standards on specific aspects of school bus safety, applicable to all school buses. Those standards became effective on April 1, 1977 and are included, along with the rest of the agency's safety standards, in 49 CFR Part 571.

The Safety Act defines a school bus as a vehicle that "is likely to be significantly used for the purpose of transporting primary, preprimary, or secondary school students to or from such schools or events related to such schools." NHTSA further defines a school bus as a motor vehicle designed for carrying eleven or more persons, including the driver, and sold for transporting students to and from school or school-related events. See 49 CFR 571.3.

It is a violation of Federal law for any person knowingly to sell as a school bus any new vehicle that does not comply with all applicable Federal school bus safety standards. On the other hand, once a vehicle has been sold to the first purchaser for purposes other than resale, it may be used to transport school children without violating Federal law, even though it may not comply with Federal school bus safety standards. That is because individual states have the authority to regulate the use of vehicles. Therefore, to ascertain whether one may use noncomplying vehicles to transport school children, one must look to state law. It is this agency's position that vehicles meeting Federal school bus safety standards are the safest way to transport school children.

Please find enclosed a pamphlet issued by this agency entitled Federal Motor Vehicle Safety Standards and Regulations, which summarizes our safety standards. Specifically, the following standards include requirements for school buses:

Standards 101 through 104;

Standards 105 (school buses with hydraulic brakes)

Standards 106 through 108; Standards 111 through 113;

Standard 115;

Standard 116 (school buses with hydraulic service brakes);

Standards 119 and 120;

Standard 121 (school buses with air brakes);

Standard 124;

Standard 131 (effective September 1, 1992);

Standards 201 through 204 (school buses with a gross vehicle weight rating (GVWR) of 10,000 pounds or less);

Standard 205;

Standards 207 through 210;

Standard 212 (school buses with GVWR of 10,000 pounds or less);

Standard 217;

Standard 219 (school buses with GVWR of 10,000 pounds or less);

Standard 220;

Standard 221 (school buses with GVWR greater than 10,000 pounds);

Standard 222;

Standards 301 and 302.

Some of the above-listed standards have unique requirements for school buses, including, but not necessarily limited to, Standards 105, 108, 111, 217, and 301. Other standards are applicable only to school buses, such as Standards 131, 220, 221, and 222. Standard 131 was promulgated on May 3, 1991 and may be found at 56 Federal Register 20370. It requires all school buses manufactured after September 1, 1992, to be equipped with stop signal arms. Standard 220 establishes requirements for school bus rollover protection. Standard 221 establishes strength requirements for school bus body panel joints. Standard 222 establishes minimum crash protection levels for occupants of school buses. Under the provisions of Standard 222, small school buses, that is those with a GVWR of 10,000 pounds or less, must be equipped with lap belts. For large school buses, those with a GVWR greater than 10,000 pounds, the standard requires occupant protection through "compartmentalization," a concept which calls for strong, well-padded, well-anchored, high-backed, evenly spaced seats.

Should you wish copies of our safety standards, I am enclosing for your information a fact sheet prepared by this office entitled Where to Obtain NHTSA's Safety Standards and Regulations.

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

ID: nht92-7.4

DATE: May 14, 1992

FROM: Paul Jackson Rice -- Chief Counsel, NHTSA

TO: Al Twyford

TITLE: None

ATTACHMT: Attached to letter dated 4/21/92 from Al Twyford to Associate Administrator for Safety, Federal Highway Administration (OCC 7244)

TEXT:

This responds to your letter of April 21, 1992, to the Federal Highway Administration, which has been forwarded to this agency for reply.

You wish to complain "about some makes of new cars that have two sets of headlights (4) which operate at the same time." If this agency plans to do nothing about it, you "plan to take this matter up with Congressmen and U.S. Senators."

You are not alone in your concern about headlamp glare created by new motor vehicles. Other citizens have brought the subject to the attention of Members of Congress. I enclose a copy of a recent letter from the Deputy Administrator of this agency to Senator Cohen of Maine which is representative of our views on this issue. You will see that a number of factors may be responsible for creating a perception of glare. We note that you have already been in touch with the Department of California Highway Patrol, and that California has no periodic motor vehicle inspection.

With respect to the specific comments in your letter, the agency does not "approve" specific headlamp designs. Standard No. 108 sets forth photometric performance requirements to be met on both the upper and lower beam, and does establish maximum limitations at some of the photometric test points. Further, in a four-headlamp system, the upper and lower beams may be provided by all headlamps. Headlamp manufacturers must ensure that their products meet these requirements, and certify that each headlamp complies by placing a "DOT" mark on the lamp. There is no requirement that a manufacturer obtain permission from this agency before introducing the lamps into the market.

We appreciate your concern.

Enclosure

April 16, 1992

The Honorable William S. Cohen United State Senate Washington, DC 20510-1901

Dear Senator Cohen:

Thank you for your letter requesting information on the quality of automobile headlamps. Our information should help you respond to a letter from Mr.

Lowell Spicer, of Brunswick, Maine, who wrote you about headlamp glare and other issues.

The National Highway Traffic Safety Administration is authorized by the National Traffic and Motor Vehicle Safety Act to issue safety standards for new motor vehicles and items of motor vehicle equipment. Under that authority, the National Highway Traffic Safety Administration has issued vehicle safety standards on a wide variety of subjects. One of these standards, Federal Motor Vehicle Safety Standard (FMVSS) No. 108, "Lamps, Reflective Devices and Associated Equipment," addresses the safety requirements for vehicle headlighting.

Two of FMVSS No. 108's requirements standardize the beam pattern and light intensity of headlamps. All new headlamps must meet these requirements, which have remained essentially unchanged since 1978. Halogen headlamps may appear much brighter, but they meet the same minimum and maximum output requirements as normal incandescent headlamps. They appear much brighter because of the color spectrum of their light, i.e., they emit light which appears whiter than the light emitted by incandescent headlamp. Another of FMVSS No. 108's requirements allows headlamps to be installed or "mounted" in a proper ground clearance and ramp angles for heavy duty and other vehicles. Because of their size and other characteristics, trucks often have headlamps that are mounted higher than other vehicles.

Our headlamp compliance tests for beam pattern and light intensity show, that when properly aimed, recent model-year headlamps generally fall well within the limits established for glare brightness. However, our tests do not account for the effect of different mounting heights or misaiming. Headlamp replacement and vehicle loading can alter headlamp aim and are often the cause of glare complaints.

Another aspect of recent model-year vehicles that could be contributing to glare is the improper use, misaiming or improper installation of auxiliary fog or driving lamps. These are regulated solely by state law.

The agency has found that factors such as reduced night vision capabilities as people age can adversely influence driving performance. Headlamp glare resistance reduces with driver age. According to research, the headlamp glare resistance of the human eye at age 20 is twice as good as it is for the age of 72. Contrast sensitivity is also an important factor in night vision, and it reduces dramatically, requiring more illumination to see objects as drivers age.

Concerning vehicle headlamps and their brightness due to misaim, States regulate headlamp aim in motor vehicle use and inspection laws. Maine has an annual motor vehicle inspection law. Should Mr. Spicer want to contact his State on the matter of headlamp aim inspection he should contact the following:

Administration of Laws Mr. G. William Diamond, Secretary of State Department of Secretary of State Nash School Station, #148 Augusta, ME 04333

Enforcement of Laws Mr. John Atwood, Commissioner

Department of Public Safety 336 Hospital Street Augusta, ME 04333.

I hope that we have provided enough information to help you answer Mr. Spicer's concerns.

Sincerely,

Frederick H. Grubbe

ID: vastatepat.ztv

Col. W. Gerald Massengill
Superintendent
Department of State Police
Commonwealth of Virginia
P.O. Box 27472
Richmond, VA 23261-7472





Dear Col. Massengill:

This is in reply to your letter of April 19, 2001, to Taylor Vinson of this Office regarding undercover or "hide-a-way" lights on Virginia state police patrol vehicles. You would like to equip unmarked patrol cars with a certain lighting system for use on Interstate highways within the Commonwealth if the lights comply with Federal Motor Vehicle Safety Standard No. 108. You have asked two specific questions.

For the reasons discussed below, our answer is that you may equip your vehicles with this system without violating Federal law.

You write that "Ford Motor Company engaged a consulting firm, Crown North America, to install the Whelan lights in the taillight, four side marker lights, and possibly the parking lights of a new Crown Victoria for evaluation." The "Whelan lights" are apparently strobe lights. These appear to be part of a "Police Prep and Visibility Package" which forms the basis of a "Police Interceptor Police Package" marketed by Ford Motor Company. Under Ford's "Visibility Package," a strobe power supply is installed in the trunk of a vehicle "capable of controlling all strobe light heads."

You have asked:

"First, is whether the modification of the tail and marker lights to allow insertion of the strobe unit impairs the effectiveness of the equipment required by FMVSS 108, renders the equipment non-compliant or compromises the integrity of the original lighting devices?"

With respect to new vehicles, Standard No. 108 requires parking lamps, side marker lamps, and optional lighting to be steady burning in use (S5.5.10(d)). When parking lamps and side marker lamps are flashed by the strobe device, a noncompliance with Standard No. 108 would occur. Standard No. 108 also prohibits the installation of "other motor vehicle equipment . . . that impairs the effectiveness of lighting equipment required by this standard" (S5.1.3). Strobe lights are "other motor vehicle equipment" within the meaning of this phrase. We read the term "installation" to include use of the other vehicle equipment. Impairment of parking and side marker lamps will result if they are activated for a purpose other than to serve as parking and side marker lamps.

Traditionally, we defer to the judgment of States as to the installation and use of emergency lighting devices on its vehicles. In this instance, the strobe lights will be used on unmarked Ford Crown Victoria passenger cars, virtually identical to Ford Crown Victoria passenger cars available to the general public. We want to allow States to install and use strobe lights on unmarked vehicles yet we do not think it in the interest of safety to allow the general public to do the same on virtually identical vehicles.

We would distinguish police and private vehicles in this manner. The drivers that operate police vehicles will be instructed to use the strobe equipment only when it is required to alert a motorist to pull to the side of the road and thereafter to alert other motorists of the presence of stopped vehicles and law enforcement personnel at the side of the road. In all other circumstances, the parking lamps and side marker lamps will operate as they normally do. Thus, the noncompliance and impairment are temporary in nature and are necessary for the missions of the State police. We believe, then, that the strobe equipment is permissible because of the circumstances which are unique to law enforcement. This would not be the case for vehicles that are not specified by state or local laws to be emergency vehicles that may be required to have special, additional lighting.

"Second, once installed, if the strobes are removed and the hole plugged prior to auctioning the vehicle, would these modifications render the light noncompliant with FMVSS 108?"

We assume that you mean the tail and marker lamps to which you referred in your first question. If the strobes are removed from the tail and side marker lamps, and those lamps continue to perform as they originally did when the vehicle was certified by Ford Motor Company, then the removal of the strobes would not of themselves appear to render the light noncompliant with Standard No. 108. Care should be taken in plugging the holes to minimize the chance of environmental degradation (e.g., dust, moisture) of lighting performance.

Under Federal law (49 U.S.C. 30122), the State, as the owner of a vehicle, may itself modify the vehicle after its purchase even if this modification results in a noncompliance with a Federal motor vehicle safety standard. Further, there is no Federal requirement that the owner return the vehicle to compliance before selling it. However, we ask that the State Patrol ensure that lamps on vehicles it sells at auctions are properly wired and have the proper bulbs if these were affected by the installation or removal of the lamps used in undercover lighting schemes.

If you have further questions you may call Mr. Vinson (202-366-5263).

Sincerely,

John Womack
Acting Chief Counsel

ref:108
d.7/3/01

ID: bombardier.ztv

Mr. William K. Cooper. P.E.
Vice President
Engineering and System Assurance
Bombardier Transportation (Holdings) USA Inc.
1501 Lebanon Church Road
Pittsburgh, PA 15236-1491

Dear Mr. Cooper:

This is in reply to your letter of January 13, 2003, requesting an interpretation as to whether the Guided Light Transit (GLT) that Bombardier is preparing to market is a "motor vehicle." You stated that the GLT "is similar in appearance and function to a European street tram, but runs on rubber tires and is guided during street operation by a single rail set into the roadway." You further stated "Propulsion is electric via an overhead catenary system." You argued that the GLT is not a "motor vehicle," "owing to its primary operation in a guided mode where the operator is not required to steer."

You provided additional information in a CD-ROM that you left with us after meeting with Taylor Vinson of this Office, and other agency representatives, on December 10, 2002. We have downloaded this information and it, with your letter, forms the basis for our response.

The information indicates that the rubber-tired GLT is intended to bridge the gap between articulated buses and steel-wheeled trams. The GLT is a vehicle consisting of three passenger-carrying units, and contains 41 designated seating positions. The overall length of the GLT is 24.5 m and its "empty weight" is 25,000 kgs. In the GLTs "Maintenance/Failure Management Mode," the operator "provides steering, traction and braking for limited failure management and non-revenue service maneuvers." We understood from our meeting that "non-revenue service maneuvers" refers to the driving of the GLT, under its own power, between the guide rail and the structure where it is housed. In going to and from the guide rail, the GLT does not carry passengers.

You have also presented information indicating that the GLT complies, or will comply, with all but one of the Federal motor vehicle safety standards (FMVSS) that would apply to it as a "bus" with a GVWR more than 4,536 kg. were the GLT determined to be a "motor vehicle."The one exception is FMVSS No. 208, Occupant Crash Protection, where "Discussion required with the National Highway Traffic Safety Administration (NHTSA") is noted (in our view, the GLT would comply with FMVSS No. 208 were the operator provided with, at a minimum, a Type 1 seat belt assembly (a lap belt for pelvic restraint) that complies with the specifications of S4.4.2.2 of FMVSS No. 208, referenced by the primary requirement for a bus with a GVWR of more than 10,000 pounds, S4.4.3.1.).

Under 49 U.S.C. Chapter 301 Motor Vehicle Safety, a "motor vehicle" is "a vehicle driven or drawn by mechanical power and manufactured primarily for use on public streets, roads, and highways, but does not include a vehicle operated only on a rail line." Under a literal application of this definition, the GLT would be a "motor vehicle" because it is manufactured primarily for use on the public streets and it is not operated exclusively on a rail line.

Nevertheless, we interpret the definition to exclude vehicles operated on a rail line even if the vehicles are rubber-tired, instead of steel-wheeled, and if the rail line is part of a public road. Importantly, we observe that the GLT is "operated exclusively on a rail line" at all times that it is carrying passengers other than a driver; i.e., when the safety of the passengers on the public roadways would be the paramount concern of this agency. At such times, it is electrically powered by an overhead catenary, consistent with other public transit vehicles such as trams and trolleys that are operated exclusively on rails. We further note that the GLT exceeds in length articulated (two-unit) buses typically regulated by this agency and due to its GVWR, is excused from compliance with some FMVSS that apply to buses. Therefore, we have concluded that the GLT is not a "motor vehicle."

Even if we decided that the GLT were a motor vehicle, there would be public policy reasons as well for NHTSA not to regulate it. Bombardiers submission also indicates that the GLT complies or will comply with such safety regulations of the Federal Transit Administration (FTA) as may apply to it (49 CFR Part 665). We have, on two occasions, relinquished our jurisdiction over "motor vehicles" where it appeared they were more appropriately regulated by another Federal agency. Initially, we considered mobile homes to be "motor vehicles" because they used the public roads in traveling from the place of manufacture to one or more home sites during their life, requiring them to be equipped in compliance with the Federal motor vehicle safety standards that applied to "trailers." We found it more appropriate for mobile homes to be regulated by the Department of Housing and Urban Development (HUD). The second situation involved motorized bicycles. We distinguished those that were powered 100 percent of the time by a motor from those where the power source was primarily muscular and the motor operated intermittently as an assist, such as in climbing hills. We found it more appropriate that the Consumer Product Safety Commission (CPSC) regulate power-assist bicycles. Because the GLT is not a transit vehicle of the type usually regulated by this agency, it is more appropriate for FTA to regulate it than it would be for NHTSA to do so.

If you have any questions, you may call Taylor Vinson (202-366-5263).

Sincerely,

Jacqueline Glassman
Chief Counsel

ref:571
d.5/15/03

ID: nht75-1.18

DATE: 12/31/75

FROM: AUTHOR UNAVAILABLE; F. Berndt; NHTSA

TO: Motor Vehicle Manufacturers Association

TITLE: FMVSS INTERPRETATION

TEXT: This is in further response to your letter of November 12, 1975, asking whether this agency considers Standard 105-75 on hydraulic braking systems to be preemptive of State regulations concerning brake wear warning devices. You asked the question in light of the proposed uniform State regulation requiring such devices recently adopted by the Vehicle Equipment Safety Commission.

There are presently no requirements in the Federal motor vehicle safety standards dealing directly with the subject of brake wear indicators or warning devices. The question, therefore, becomes whether the Federal safety standards on braking performance were intended generally to cover this aspect of performance, analogously to the situation in which Standard 108 was held to be preemptive in Motorcycle Industry Council v. Younger, No. CIV S74-126 (E. D. Cal. 1974). The guiding rule, as set forth by the U. S. Supreme Court in Florida Lime & Avocado Growers v. Paul, 373 U. S. 132, 141-142 (1963), is "whether both regulations can be enforced without impairing federal superintendence of the field." Under the accepted doctrines as set forth in cases such as Thorpe v. Housing Authority of Durham, 393 U. S. 268 (1969), and Chrysler v. Tofany, 419 F.2d 499, 511-12 (2d Cir. 1969), the interpretation of this question by the administering agency is "of controlling weight unless it is plainly erroneous or inconsistent with the regulation."

The NHTSA has determined that the issuing of requirements for brake wear indicators by the States does not conflict with or otherwise impair our present regulation of braking systems, and that brake wear indicators are not within the intended scope of the present Federal safety standards. We therefore conclude that the existing standards are not preemptive of such State regulations. You should be aware that the agency is actively proceeding with rulemaking development work in this area, and may within the next year issue requirements that would alter these legal relationships.

SINCERELY,

MOTOR VEHICLE MANUFACTURERS ASSOCIATION

November 12, 1975

Dr. James B. Gregory, Administrator National Highway Traffic Safety Administration

Re: Request for Statement of Scope of Braking Standards; Proposed Uniform State Brake Component Wear Warning Regulation

The Motor Vehicle Manufacturers Association of the United States, Inc. (MVMA) requests a statement by the National Highway Traffic Safety Administration of the preemptive effect of Federal Motor Vehicle Safety Standards 105, 105-75, and 121, in light of Section 103(d) of the National Traffic and Motor Vehicle Safety Act of 1966. MVMA believes that those standards preempt any state statute or regulation implementing the proposed uniform state regulation requiring brake wear warning devices recently adopted by the Vehicle Equipment Safety Commission. Briefly, that regulation would require that manufacturers of all highway use vehicles except motorcycles, trailers and semi-trailers provide a "visible, audible or tactile signal" when brake friction materials are worn to the discard point. (A copy of the VESC regulation is appended to this letter. The copy is of the draft prepared by the VESC for its annual meeting on July 30, 1975, which was adopted without substantial amendment on that date.)

Forty-two states and the District of Columbia are now members of the VESC. Under the terms of the Vehicle Equipment Safety Compact, "each party state obligates itself to give due consideration to any and all rules, regulations and codes issued by the Commission and hereby declares its policy and intent to be the promotion of uniformity in the laws of the several party states relating to equipment." A copy of the Vehicle Equipment Safety Compact is also appended.

MVMA includes in its membership manufacturers of more than 99% of the motor vehicles made in the United States. Our members are vitally affected by both Federal and state regulation of motor vehicles.

MVMA believes that state legislation or regulation incorporating this proposed brake wear warning device requirement is preempted by presently effective Federal motor vehicle safety standards which govern brake performance of affected vehicles; i.e., FMVSS 105 and 121. We urge the Administrator to publish a clear statement in the Federal Register, addressing this preemption issue and asserting that under the authority of Section 103(d) of the Safety Act, such legislation or regulation is preempted by these standards. MVMA believes that the issue raised here is as important as the question raised by the Japan Automobile Manufacturers Association on state enforcement policies, which occasioned the Administration to publish a strong preemptive statement in the Federal Register on June 2, 1971 (36 FR 10744).

Summary of Legal Issues

We believe that a brief review of the treatment given to the preemption question in the National Traffic and Motor Vehicle Safety Act is appropriate.

Section 103(d) of the Act (15 USCA Section 1392(d)) provides:

"(d) Whenever a Federal motor vehicle safety standard established under this title is in effect, no State or political subdivision of a State shall have any authority either to establish, or to continue in effect, with respect to any motor vehicle or item of motor vehicle equipment any safety standard applicable to the same aspect of performance of such vehicle or item of equipment which is not identical to the Federal Standard. Nothing in this section shall be construed to prevent the Federal Government or the government of any State or political subdivision thereof from establishing a safety requirement applicable to motor vehicles or motor vehicle equipment procured for its own use if such requirement imposes a higher standard of performance than that required to comply with the otherwise applicable Federal standard."

The express statutory inclusion of such a preemption provision is relatively unusual. The statute does not broadly permit states to establish or enforce identical standards; it prohibits standards which are not identical to Federal standards. Congress made plain the necessity for Federal preemption and the broad reach the preemption provision was to have. For example, the Senate Report (S. Rep. No. 1301, 89th Cong., 2d Sess., 1966) stressed the paramount Federal Role (page 4):

"Out of the committee's hearings, there emerged a clear outline of the basic needs to be served by Federal legislation:

"1. The promotion of motor vehicle safety through voluntary standards has largely failed. The unconditional imposition of mandatory standards at the earliest practicable date is the only course commensurate with the highway death and injury toll.

"2. While the contribution of the several States to automobile safety has been significant, and justifies securing to the States a consultative role in the setting of standards, the primary responsibility for regulating the national automotive manufacturing industry must fall squarely upon the Federal Government." [Emphasis added]

The Senate Report also explained why preemption was needed to insure uniformity (page 12):

"The centralized, mass production, high volume character of the motor vehicle manufacturing industry in the United States requires that motor vehicle safety standards be not only strong and adequately enforced, but that they be uniform throughout the country. At the same time, the committee believes that the States should be free to adopt standards identical to the Federal standards, which apply only to the first sale of a new vehicle, so that the States may play a significant role in the vehicle safety field by applying and enforcing standards over the life of the car. Accordingly, State standards are preempted only if they differ from Federal standards applicable to the particular aspect of the vehicle of item of vehicle equipment (sec. 104)." [Emphasis added.]

The House Report (H.R. Rep. No. 1776, 89th Cong., 2d Sess., 1966) makes a similar statement. See page 11 where the House Report emphasizes the need for national solution of this "nationwide problem", and see also the emphasis on uniformity at page 17 -- "this preemption subsection is intended to result in uniformity of standards so that the public as well as industry will be guided by one set of criteria rather than by a multiplicity of diverse standards."

In view of this legislative history of Section 103(d), it is clear that the comprehensive attention which the National Highway Traffic Safety Administration has given to brake systems and components in the formulation of Standards 105 and 121 preempts the regulation which the Vehicle Equipment Safety Commission now proposes for legislative or regulatory adoption by member states.

The currently effective Federal standard on hydraulic brake systems, FMVSS No. 105 (49 CFR S 571.105), states in its "Purpose and scope" section that it specifies requirements for ". . . brake systems intended to ensure adequate braking performance under normal and emergency conditions." The National Highway Traffic Safety Administration has taken the position that the purpose and scope provision of a Federal standard defines the aspect of performance covered -- see 35 Fed. Reg. 18000, November 24, 1970. The aspect of performance thus stated in FMVSS No. 105 necessarily embraces what the VESC now proposes as State law or regulation. Although FMVSS 105 does not deal in specific detail with all of the components of a hydraulic brake system, this system approach follows the Congressional expectation of how the Federal standards should operate. * Moreover, in addition to its system approach "to ensure adequate braking performance", FMVSS No. 105 specifically addresses failure of the system and requires a system effectiveness warning indicator light (@ 4.2.2). That requirement alone leaves no room for State adoption of a different warning requirement such as the VESC now proposes.

* For example, the Senate Report states at page 6:

"Unlike the General Services Administration's procurement standards, which are primarily design specifications, both the interim standards and the new and revised standards are expected to be performance standards, specifying the required minimum safe performance of vehicles but not the manner in which the manufacturer is to achieve the specified performance (sec. 101(b)). Manufacturers and parts suppliers will thus be free to compete in developing and selecting devices and structures that can meet or surpass the performance standard.

"The Secretary would thus be concerned with the measurable performance of a braking system, but not its design details. Such standards will be analogous to a building code which specifies the minimum loadcarrying characteristics of the structural members of a building wall, but leaves the builder free to choose his own materials and design. Such safe performance standards are thus not intended or likely to stifle innovation in automotive design."

FMVSS No. 105-75 becomes effective on January 1, 1976. This standard has been under intense consideration by the Administration and by industry since 1968. In the course of that consideration the NHTSA considered and rejected matters which are pertinent here. For example, the Administration had proposed that brakes be installed so that the lining thickness of drum brake shoes and brake pads could be visually inspected without removing the drums or pads. Subsequently the Administration decided to abandon that proposal (37 Fed. Reg. 17972, September 2, 1972). The Administration has also stated that FMVSS No. 105 would provide consumers "with braking systems that have been optimized with respect to safety, performance, and cost," (38 Fed. Reg. 3047, February 1, 1973).

For any state now to enact an additional warning requirement would fly in the teeth of FMVSS No. 105-75. Such action would make a mockery of the uniformity which Congress said was necessary in adopting the preemption provision of the National Safety Act.

Also relevant is FMVSS No. 121, Air Brake Systems (49 CFR S 571.121). This standard "establishes performance and equipment requirements for braking systems on vehicles equipped with air brake systems." Its stated purpose "is to insure safe braking performance under normal and emergency conditions." Standard 121 clearly is a comprehensive set of requirements encompassing every aspect of performance of air brake systems. Section 5.1.4, Section 5.1.5, and Section 5.1.6 provide requirements for gauges and warning signals. It would be anomalous indeed if various states were now permitted to require additional warning devices to be added to the system.

General Motors Corporation, a member of MVMA, has informed MVMA of a determination of preemption that was made on May 2, 1975, by Mr. James Schultz, then Chief Counsel of the NHTSA, in a letter to Mr. Frazer F. Hilder, General Counsel of General Motors Corporation. General Motors, in its letter of March 21, 1975, questioned the supplemental air brake performance requirements of the Massachusetts and New Jersey Departments of Public Utilities and indicated that those requirements were not identical to FMVSS No. 121 requirements.

Briefly, the Massachusetts statute and regulations required that all braking systems be constructed and designed to permit release by the operator from the normal operating position. Although FMVSS No. 121 requires the parking brake system to be operable after failure of both the service and emergency brake systems (@ 5.7.2.2), it does not expressly address the issue of how release of the parking brake should be made.

The New Jersey "autobus" regulation required an automatic emergency brake system as contrasted to the optional automatic or modulated system permitted in S5.7 of FMVSS No. 121. In addition, the New Jersey stopping distances for service and emergency brakes were not identical to the requirements of FMVSS No. 121.

In his May 2, 1975 answer to General Motors' request for a determination of preemption, Mr. Schultz stated in part as follows:

"Standard No. 121 includes provisions relating to truck and bus brake performance, including requirements for stopping distances. A more restrictive state brake requirement than that specified in Standard 121 is voided by @103(d) since the Federal Standard is intended to cover all aspects of brake performance. [Emphasis supplied.]"

In the course of extensive rulemaking for the development of Standards 105 and 121, the NHTSA has made its intention clear that those standards cover every aspect of braking performance on the vehicles to which they apply. In view of that expressed intention, a recent decision of the United States District Court for the Eastern District of California is germane. The case is Motorcycle Industry Council, Inc. et al v. Younger, et al No. CIV. S74-126, decided September 23, 1974. The Court reviewed a California statute requiring that motorcycles be wired so that headlamps would be lit whenever engines were running. The Court held that the statute related to the same "aspect of performance" as does FMVSS 108 and therefore was preempted.

In your letter of November 8, 1973 to Mr. W. Pudinski of the Department of California Highway Patrol concerning the preemptive effect of FMVSS No. 108 upon that California statute you stated as follows:

"The implication of the California opinion is that any mode of design or performance that is not expressly dealt with in the Federal standard is open to regulation by the states. Such a position is impractical, where the Agency's intent is to have a comprehensive, uniform regulation in a given area . . . . Congress clearly intended the NHTSA to establish a single set of uniform standards to which manufacturers must comply, and that intent would tend to be defeated by the position taken in the California opinion. Federal regulation has a negative as well as a positive aspect; in determining that there should be certain requirements in an area, we also are deciding against imposing others. The only way to effectuate such a decision is to declare, as we have done here, that our regulation is intended to be exclusive, and to describe as necessary its outer limits." [Emphasis supplied.]

In light of the legislative history, and the administrative and judicial interpretations of Section 103(d) of the Safety Act, Standards 105 and 121 appear clearly to be comprehensive and exclusive requirements covering all aspects of hydraulic and air brake system performance. The omission from those standards of an express requirement for an audible or visual wear signalling device does not permit a State to impose such a requirement.

MVMA urges that the NHTSA promptly publish a statement that state adoption and enforcement of the VESC's brake wear warning regulation is preempted by Federal standards.

We appreciate your consideration of this request.

Thomas H. Hanna

CC: RICHARD B. DYSON; FRANK A. BERNDT