ID: 15639.drn

Scott Summers, Esq.
Agency Legal Counsel's Office
Nebraska Department of Education
301 Centennial Mall South
P. O. Box 94987
Lincoln, NE 68509-4987

Dear Mr. Summers:

This responds to your letter asking about the difference in definitions of "schoolbus" at 49 U.S.C. 30125 and at 49 CFR 571.3. This question arose from comments on Nebraska's proposed change in the State definition of "school bus." You attached a letter from Mr. James R. Cunningham, Executive Director of the Nebraska Catholic Conference, questioning the "inconsistency between the August 1995 document ['Frequently Asked Questions About Federal School Bus Safety Requirements'] and the Federal Statute."

The statutory definition of "schoolbus" at 30125 is "a passenger motor vehicle designed to carry a driver and more than 10 passengers, that the Secretary of Transportation decides is likely to be used significantly to transport preprimary, primary, and secondary school students to or from school or an event related to school."

In NHTSA's regulations at 49 CFR 571.3, a "school bus" is "a bus that is sold, or introduced in interstate commerce, for purposes that include carrying students to and from school or related events, but does not include a bus designed and sold for operation as a common carrier in urban transportation" (emphasis added). Section 571.3 defines "bus" as a motor vehicle "designed for carrying more than 10 persons." The 571.3 definition of "bus" includes the driver, who is a "person" carried on the bus.

In the August 1995 "Frequently Asked Questions" document, NHTSA restates the regulatory definition of "school bus" found at 49 CFR 571.3.

NHTSA enacted its regulatory definition of "school bus" following enactment of the Motor Vehicle and School Bus Safety Amendments of 1974. In the final rule establishing the new definition of "school bus" (49 CFR 571.3), NHTSA addressed the point raised by Mr. Cunningham. In that final rule, NHTSA explained that it adopted a more expansive definition of "school bus" that differs somewhat from the statutory definition, so that the definition would apply to school buses that transport 10 students. In a Federal Register notice of December 31, 1975 (40 FR 60033, at 60034) (copy enclosed), NHTSA stated:

In conforming its proposal to the Congressional definition, the NHTSA limited "school bus" to a bus that carries at least 11 passengers in addition to the driver. Based on comments received ... , it appears that the definition should be expanded slightly to include buses that carry 10 passengers. This eliminates a departure from previous NHTSA vehicle categorization that classifies vehicles with 10 or fewer occupant seating positions as MPVs or passenger cars and vehicles with 11 or more seating positions as buses. To adhere strictly to the Congressional definition would leave the small group of vehicles that transport 10 students without coverage under either the school bus, the MPV, or the passenger car standards.

Some commenters incorrectly assumed that the Congressional definition of "school bus" established an outer limit on the NHTSA's authority to regulate vehicles that transport students as such. To the contrary, the Congressional definition is a direction to the NHTSA that the new standards in this area must not be applied to a narrower category of vehicle. As long as that direction of Congress is satisfied, the NHTSA is, however, authorized to decide the scope of its standards, and in this case to expand on the Congressional definition to implement the mandate effectively.

Please note that Nebraska may adopt a state definition of "school bus" that differs from the Federal definition. State definitions of "school bus" affect the scope of State school bus requirements, while the Federal definition affects the scope of Federal requirements. For example, the State definitions determine which vehicles are subject to the State operational requirements for school buses. However, the Federal definition determines which new vehicles sold or leased by dealers are required under Federal law to meet the Federal motor vehicle safety standards applicable to school buses.

This agency has urged the States to follow NHTSA's definition of "school bus" and not to establish operational rules that would allow schools and school districts to carry students on buses that do not meet NHTSA's school bus standards. School buses that comply with NHTSA's school bus safety standards are the safest form of pupil transportation.

I hope that this information is useful. If you have any further questions, please contact Dorothy Nakama of my staff at this address or at (202) 366-2992.

Sincerely,
John Womack
Acting Chief Counsel
Enclosure
ref: 571.3
d.10/14/97

ID: 15643.ztv

Mr. Walter T. Jakobowski
President
Signal Dynamics Corporation
P.O. Box 350441
Ft. Lauderdale, FL 33335

Dear Mr. Jakobowski:

This is in reply to your letter of July 28, 1997, asking for an interpretation regarding the preemptive effect of Federal Motor Vehicle Safety Standard No. 108.

Your company manufactures motorcycle headlamp modulators "that comply with Standard No. 108." You report receiving comments that certain States do not allow use of this equipment. You ask for "an interpretation and a copy of the statutes that provide for Federal Law pre-empting any state laws that would disallow use of said Headlight Modulator."

Section 30103(b) of Title 49, United States Code, provides in pertinent part that:

Paragraph S7.9.4 Motorcycle headlamp modulation (formerly S5.6) of Standard No. 108 specifies that a headlamp on a motorcycle may be wired to modulate, provided that it does so in accordance with the requirements prescribed by that paragraph. Under 49 U.S.C. 30103(b)(1), a State may have its own standard which allows a motorcycle headlamp to be wired to modulate in the same manner as prescribed under S7.9.4. However, since the Federal standard specifically allows a modulation of motorcycle headlamps, a State cannot have a standard prohibiting it. For your information, we are not aware of any State that forbids modulation of motorcycle headlamps.

Taylor Vinson provided you with a copy of 49 U.S.C. 30103(b) on your visit to our Office on July 28. If you have further questions, you may reach him at 202-366-3820.

Sincerely,
John Womack
Acting Chief Counsel

ref:vsa#108

d.9/11/97

ID: 15647.ztv

Mr. Michael J. Rood
Vice President, Engineering
Safe-Lite Mfg. Co.
6230 Gross Point Road
Niles, IL 60714

Dear Mr. Rood:

This is in reply to your letter of July 23, 1997, to Taylor Vinson of this Office, asking for an interpretation of Federal Motor Vehicle Safety Standard No. 108. We apologize for the delay in responding, but your letter presented unique questions which took some time to resolve to the agency's satisfaction.

There are three aspects of reflex reflector conspicuity treatment that you wish us to address, to clarify questions asked by owners who wish to retrofit their trailers, as well as by manufacturers of new trailers. Retrofitting of trailers manufactured before December 1, 1993, of course, is not subject to the requirements of Standard No. 108.

As you point out, S5.7.2.2(a) allows the use of reflex reflectors as a conspicuity alternative to S5.7.1.4 "in the same locations and in the same length in which retroreflective sheeting is required. . . ." You believe that because reflex reflectors cannot be trimmed, it is impossible that reflex reflectors can comply in some instances with the literal requirement of S5.7.2.2 that they be applied "in the same length" as retroreflective sheeting to meet conspicuity requirements.

The conspicuity requirements of Standard No. 108, including the provisions referring to practicability, are stated in terms of sheeting material. Each reflex reflector used to fulfill conspicuity requirements must have photometric performance equivalent to that of a 100 mm length of sheeting material, and the conspicuity treatment may then be implemented using reflex reflectors with a center-to-center spacing not greater than 100 mm. Conspicuity treatments using one reflex reflector as an alternative to 100 mm of sheeting material would be equivalent in minimum performance and nearly identical in reflective appearance to a treatment using sheeting material.

The trailer manufacturer has the choice of using either reflex reflectors or sheeting material. However, reflex reflectors could not be used to comply with the standard if they cannot replicate a complying sheeting material installation. For example, S5.7.1.4.2(a) requires the conspicuity treatment to originate and terminate "as close to the front and rear as practicable," and that it need not be continuous as long as "the spaces are distributed as evenly as practicable." If sheeting material would terminate closer to the front or rear than is possible with reflex reflectors on a particular trailer, or if it results in a more even distribution of spaces, then sheeting material must be used to meet the practicability provisions. There may be instances when sheeting material is better than reflex reflectors in taking account of ribs and obstructions on the trailer body in marking the overall length of the vehicle, or when its use would result in lesser gaps in the treatment than use of reflex reflectors.

Similarly, if a trailer manufacturer determines that it may use reflex reflectors as a conspicuity treatment, it must use a single reflector of 100 mm length rather than a bar of reflectors of 300 mm if the single reflector would more closely mark the extreme width or length of the trailer or result in smaller gaps.

Underride Protection Devices

Paragraph S5.7.1.4.1(c) requires a strip of retroreflective sheeting in alternating colors to be installed across the full width of the horizontal member of the rear underride protection device.

You have enclosed sample reflex reflector bars that are 12 inches (approximately 300 mm) in length. You point out that, unlike retroreflective sheeting, reflex reflectors cannot be trimmed in application. Assuming that the underride protection bar is 90 inches (7' 6") in length, you present two options. In the first option, you would center a white reflex reflector on the bar, and work outward with alternating red and white reflectors (seven in all), which would leave 3 inches of uncovered surface at both ends of the underride bar. In the second option, you would work inward from reflectors placed at the end of the underride bar, distributing the 6 inches of uncovered surface evenly between reflectors. We understand that this means that seven reflectors would be provided, with only 1 inch of space between adjacent reflectors.

The standard requires reflex reflectors to be used "in the same locations and in the same length in which retroreflective sheeting is required...with the center of each reflector not more than 100 mm (4 in) from the center of each adjacent reflector." The underride protection device in question would have been treated with 90 inches of sheeting material, and an exact replacement using reflex reflectors would require 22 reflex reflectors with each reflector replacing 4 inches of sheeting material. However, Standard No. 108 does not recognize fractional reflex reflectors because, unlike sheeting material, they are non-homogenous indivisible units. Nor does it assume that there will be sufficient space to apply a greater number of whole reflex reflectors. Therefore, the agency has decided that the "full width" requirement can be met by using the greatest number of whole reflectors (on a basis of one reflector per 4 inches) that will fit in the length required for sheeting material. Since both of the options you propose use 21 rather than 22 reflex reflectors, neither would satisfy the standard. Given the space limitations on an underride guard, you would have to supplement the bars of three reflectors with some double or single reflectors to achieve acceptable coverage. Since the maximum cumulative space between reflectors would always be less than 4 inches per element of the conspicuity treatment, the distribution of spaces would have little practical significance. However, arrangements that mark the actual full width are always preferable to those that only approximate it.

Rear Width of a Trailer

Similarly, the conspicuity treatment specified in S5.7.1.4.1(a) is to be applied "across the full width of the trailer." You ask how a continuous pattern of alternating red and white reflex reflectors are to be applied in multiples of 12-inch segments when there are rear door hardware obstructions that do not allow it.

You suggest that if the linear space between hardware obstructions is between 12 and 24 inches, then one reflex reflector can be centered in this space provided that it is a different color than its two neighbors. If the space is between 24 and 36 inches, two reflex reflectors could be centered, again preserving a pattern of alternating colors. This scheme would apply in successive 12-inch increments with the reflectors applied at both ends of the completed scheme, "positioned as close to each end as practicable."

As in the underride interpretation above, the minimum number of reflex reflectors needed to implement an element of conspicuity treatment is the number of mm (or inches) of sheeting material that would have been used, divided by 100 mm (or 4 inches) and rounded down to the greatest whole number. In general, it would be a matter of chance if the minimum number of reflex reflectors could be arranged in a single line when obstructions are present, especially when the reflectors are combined in bars of three. However, element 1 of the rear trailer conspicuity treatment (S5.7.1.4.1(a)) is not required to be located on the same parallel plane; obstructions can be cleared by mounting some of the reflex reflector bars above or below obstructions to obtain a greater number of reflex reflectors in the treatment. Of course, the treatment must mark the full width of the body in the same manner as a treatment with sheeting material.

Unique Trailer Side Walls and Rub Rails

The required conspicuity treatment for trailer sides is set forth in S5.7.1.4.2(a). It requires that conspicuity treatment originate and terminate as close to the front and rear as practicable, and that a strip of retroreflective sheeting need not be continuous as long as not less than half of the length of the trailer is covered and the spaces are distributed as evenly as practicable.

You bring to our attention the fact that the distance from one outer rib to another on the side of some "plate" trailers could vary from 5 to 42 inches, and that your reflector will not fit into a section narrower than 12 inches. You would provide reflex reflectors in alternate color segments to cover not less than half the trailer length, even though there might be a space between some segments. This treatment would start and finish as close to both ends of the trailer "as practicable," and meet the requirement of S5.7.1.3(c) that neither color in the aggregate exceed two-thirds of the total provided to mark the sides.

As noted above, the practicability requirements for the placement and distribution of the retroreflective material in S5.7.1.4.2(a) were conceived and expressed in terms of a treatment using sheeting. If these requirements are more closely fulfilled using sheeting material, then sheeting material must be used. Although either sheeting material or reflex reflectors could be used on trailers with uninterrupted sills, it may be impossible to use triple reflector bars exclusively as a complying conspicuity treatment on the side of a trailer with ribs. Depending on the distance between the ribs, trailer manufacturers would be expected to use single reflectors or bars of two reflectors (or simply to use sheeting material) for that element of the conspicuity treatment.

If you have further questions, you may phone Taylor Vinson at 202-366-5263.

Sincerely,
John Womack
Acting Chief Counsel
ref:108
d.5/6/98

ID: 15662.ogm

Ms. Jayne Hoskins
Senior Engineer
Jaguar Cars Ltd.
Abbey Road
Whitley, Coventry CV3 4LF
England

Dear Ms. Hoskins:

This is in response to several questions asked by Jaguar Cars Ltd. (Jaguar) regarding test procedures under the head impact protection provisions contained in Standard No. 201, Occupant protection in interior impact.

In your facsimile transmission, you ask if the National Highway Traffic Safety Administration (NHTSA) would consider compliance in all the specified target locations as acceptable evidence of meeting the requirements of the Standard. You also ask if the head protection provisions are still relevant in those areas where head protection is provided by side airbags. Finally, you ask about the status of any rulemaking regarding airbag systems that provide such head protection.

In a subsequent electronic mail message, you describe a concern you have regarding a seat belt anchorage d-ring which prevents the free motion headform (FMH) from impacting on target point BP-3. You asked if you should: a) increase the size of the target zone, b) move the headform around to hit the target with the side of the headform, or c) slide/rotate the d-ring out of the way.

In regard to your initial question, the head protection requirements of Standard 201 require manufacturers to meet performance requirements only at those target points that are located using the procedures found in S10 of 49 CFR 571.201. The original proposal for the head protection requirements envisioned performance requirements for zones. This was modified in the final rule to specify individual targets. However, you should be aware that, whatever means Jaguar may use in fulfilling its responsibility to certify its vehicles, that NHTSA will follow the test procedures outlined in Standard 201 in performing its own compliance tests and reserve the right to test all possible targets at all possible target locations.

You also ask whether the agency is contemplating any changes to Standard 201 to accommodate dynamic head protection systems. These systems, which use air bags that deploy from the roof rail and other areas to provide head protection in side impacts, are the subject of a notice of proposed rulemaking (NPRM) issued by the agency on August 19, 1997 and published in the Federal Register on August 26, 1997 (62 FR 45202). In that document, NHTSA proposed that manufacturers be provided with several options for demonstrating compliance with the head protection requirements of Standard No. 201. Under two of the proposed optional tests, target points over an undeployed system are impacted at reduced speeds and the deployed system is tested through impacts at higher speeds or through a full scale crash test involving an 18 mph side impact into a rigid pole.

In an electronic mail message forwarded after your original facsimile transmission, you ask about the appropriate procedure to be followed in the event that seat belt attachment hardware, specifically a d-ring, is located within a target zone and interferes with contact between the forehead impact zone of the FMH and the target point. S10.2(b) specifies that if a seat belt anchorage is on the B-pillar, target BP2 is located at any point on that anchorage. If the target in question is BP2, S8.7 provides that where an anchorage is adjustable, tests are to be conducted with the anchorage adjusted to a point midway between the two adjustment positions. If the target in question is not BP2, the anchorage may be moved within its range of adjustment so that the d-ring does not interfere with contact between the FMH and the target point. If the location of the d-ring still prevents contact between the forehead impact zone and the target area, S10(b) provides a procedure for relocating targets within a 25 millimeter sphere centered at the original target:

(b) Except as specified in S10(c), if there is no combination of horizontal and vertical angles specified in S8.13.4 at which the forehead impact zone of the free motion headform can contact one of the targets located using the procedures in S10.1 through S10.13, the center of that target is moved to any location within a sphere with a radius of 25 mm, centered on the center of the original target and measured along the vehicle interior, which the forehead impact zone can contact at one or more combination of angles.

If it is still not possible for the forehead impact zone to make contact within the sphere described in S10(b), S10© provides that the sphere may be expanded in 25 mm increments until contact can be made.

I hope that this is responsive to your inquiry. If you have any questions, please contact Otto Matheke of this office at (202) 366-5263 or by electronic mail at omatheke@nhtsa.dot.gov.

Sincerely,
John Womack
Acting Chief Counsel
Ref:201
d.4\29\98

ID: 15732.ztv

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

Dear Mr. Lessnau:

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

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

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

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

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

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

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

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

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

ID: 15737.ztv

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

Dear Mr. Stoddard:

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

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

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

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

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

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

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

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

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

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

ID: 15740.ztv

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

Dear Senator Gramm:

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

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

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

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

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

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

ID: 15753.ogm

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

Dear Dr. Brownholtz:

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

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

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

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

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

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

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

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

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

Sincerely,

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

ID: 15810.ztv

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

Dear Mr. Narabu:

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

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

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

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

I hope that this answers your questions.

Sincerely,
John Womack
Acting Chief Counsel

ref:108

d.9/11/97

ID: 15823.nhf

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

Dear Mr. Oberdorfer and Mr. Kuwana:

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

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

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

Whether NHTSA considers the lift trucks to be motor vehicles depends on their use. In the past, we have concluded that this statutory definition does not encompass mobile construction equipment, such as cranes and scrapers, which use the highway only to move between job sites and which typically spend extended periods of time at a single job site. In such cases, the on-road use of the equipment is merely incidental and is not the primary purpose for which they were manufactured. Other construction vehicles, such as dump trucks, frequently use the highway going to and from job sites, and stay at a job site for only a limited time. Such vehicles are considered motor vehicles, since the on-highway use is more than "incidental."

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

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

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

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

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