ID: 19-000881- 30122 -- Hestrin interp request_v3

Mark Hestrin

P.O. Box 261070

Encino, CA 91426

Dear Mr. Hestrin,

This responds to your March 5, 2019 letter to the National Highway Traffic Safety Administration (NHTSA) regarding an aerodynamic device to improve the aerodynamic efficiency of heavy vehicles.  We have interpreted your letter as asking whether such a product would be in compliance with NHTSA regulations.

Applicable Requirements

The National Traffic and Motor Vehicle Safety Act (Safety Act; 49 U.S.C. Chapter 301) authorizes NHTSA to issue Federal motor vehicle safety standards (FMVSSs) applicable to new motor vehicles and new items of motor vehicle equipment. 

NHTSA does not provide approvals of motor vehicles or motor vehicle equipment and does not make determinations as to whether a product conforms to the FMVSSs outside of agency compliance tests.  Instead, the Safety Act requires manufacturers to self-certify that their products conform to all applicable FMVSSs that are in effect on the date of manufacture.  See

49 U.S.C. 30112(a)(1).  Manufacturers of motor vehicles and motor vehicle equipment are also responsible for ensuring that their products are free of safety-related defects.  Regardless of whether a product is subject to specific FMVSSs, if the entity that created the product or this agency finds the product to contain a safety-related defect after the product is marketed, the creating entity is responsible for conducting a notice and recall campaign as required under 49 U.S.C. §§ 30118-30120.

Additionally, entities producing and installing motor vehicle equipment are subject to the “make inoperative” provision set forth at 49 U.S.C. § 30122.  That section provides, in relevant part: “A manufacturer, distributor, dealer, rental company, or motor vehicle repair business may not knowingly make inoperative any part of a device or element of design installed on or in a motor vehicle or motor vehicle equipment in compliance with an applicable motor vehicle safety standard.”  Entities subject to the “make inoperative” provision, including those that produce so-called “aftermarket” equipment, would be prohibited from installing a product on a vehicle if doing so would take the vehicle out of compliance with any FMVSS.

Discussion

Your letter broadly inquires whether an aerodynamic device to improve the aerodynamic efficiency of heavy vehicles would be in compliance with NHTSA regulations.  As stated above, NHTSA does not make determinations as to whether a product conforms to the FMVSSs outside of agency compliance tests.  We can, however, provide some general information about our requirements. 

NHTSA has interpreted the information provided in your letter to mean that such a device would be motor vehicle equipment as defined in 49 U.S.C. 30102(a)(8)(B), “any similar part or component manufactured or sold for replacement or improvement of a system, part, or component, or as an accessory or addition to a motor vehicle.”  There is no single FMVSS that applies directly to such a device, but if it is installed as original equipment on a new vehicle, the vehicle manufacturer would be required to certify that, with the device installed, the vehicle satisfies the requirements of all applicable FMVSSs.  To determine how installation of such a product could affect compliance with applicable FMVSSs, you should carefully review each FMVSS, available online at: https://www.nhtsa.gov/laws-regulations/fmvss.

If such a product would be installed as aftermarket equipment, not as original equipment, and if such a product would not replace original equipment, the primary potential restriction on such a product is the Safety Act’s “make inoperative” provision.  If an entity subject to the “make inoperative” provision wishes to install aftermarket equipment, that entity is responsible for determining whether installation of that aftermarket equipment makes inoperative any part of a device or element of design installed on or in a motor vehicle or motor vehicle equipment in compliance with an applicable motor vehicle safety standard. 

Examples of a way that aftermarket equipment might “make inoperative” any part of a device or element of design installed on or in a motor vehicle or motor vehicle equipment include the following: for example, if an entity were to install a trailer hitch in a new or used vehicle, it would need to ensure that its installation does not make inoperative the vehicle’s compliance with the lamps, reflective devices, and associated equipment requirements of FMVSS No. 108.[1]  Or, an entity manufacturing a holographic car navigation system could not knowingly place a film on windshields that reduces the light transmittance or abrasion resistance of the glazing material or reduces the ability of the glazing to meet any other applicable requirement of FMVSS   No. 205.[2]

Without further information about the device mentioned in your inquiry, NHTSA cannot provide further information about the FMVSSs of which you should be particularly aware.  But note again, as mentioned above, manufacturers of motor vehicle equipment are responsible for ensuring that their products are free of safety-related defects.  If a safety-related defect is found after the product is marketed, the notice and recall provisions at 49 U.S.C. §§ 30118-30120 apply.

Other Considerations

You should be aware that even if such a product does not take the vehicle out of compliance with any applicable FMVSSs, it is possible that State and local laws or restrictions may apply.  You may wish to consult the State and local transportation authorities in the areas the product is, or is intended, to be marketed to make sure it is permissible under these laws.  Additionally, if such a product is applied to commercial vehicles, e.g., heavy trucks and buses, the U.S. Department of Transportation Federal Motor Carrier Safety Administration (FMCSA) requirements may apply.  For further information about FMCSA, please contact FMCSA at 1-800-832-5660 or visit https://www.fmcsa.dot.gov/.        

I hope this information is helpful.  If you have further questions, please contact Ms. Hannah Fish of my staff at (202) 366-1099.

Sincerely,

Jonathan C. Morrison

Chief Counsel

Dated: 8/27/19

Ref: VSA Section 30122

[1] See Letter to Mr. Robert Listou (May 4, 2016), available at https://isearch.nhtsa.gov/files/ES16-001603%20Listou%20Trailer%20Response.htm.

[2] See Letter to Mr. Philippe D. Monnier (January 19, 2017), available at https://isearch.nhtsa.gov/files/15-004254%20WayRay%20Glazing_sb_3.htm.

ID: 571.108 -- AMA -- Schaye--front color changing light

Paul Schaye
CEO, Pedestrian Safety Solutions
245 Park Avenue, 41st Floor
New York, NY 10167

Dear Mr. Schaye:

This responds to your letter requesting an interpretation of whether your auxiliary lamp, the Auto Motion Alert (“your product”), is permissible under Federal Motor Vehicle Safety Standard (FMVSS) No. 108, Lamps, reflective devices, and associated equipment.  Because your product would be installed as aftermarket equipment, not as original equipment, and would not replace original equipment, and because FMVSS No. 108 applies only to equipment installed as original equipment or that replaces original equipment, we have interpreted your request as asking whether the installation of your product is permissible under the “make inoperative” provision of the National Traffic and Motor Vehicle Safety Act of 1966 (the Safety Act).  The Safety Act prohibits most automotive businesses from installing aftermarket lighting equipment if doing so would take the vehicle out of compliance with FMVSS No. 108.  For auxiliary lamps, the primary restriction imposed by FMVSS No. 108 is that the lamps cannot impair the effectiveness of a vehicle’s required lighting equipment.

We have tentatively concluded that your product is unlikely to impair the effectiveness of required lighting equipment, and is therefore unlikely to violate the “make inoperative” provision.  However, we wish to emphasize that the existence of impairment would depend on the context in which your lamp is used, and thus must be determined on a case-by-case basis.  It is the responsibility of the business installing your product to determine whether doing so constitutes a “make inoperative” violation. We explain our reasoning below.

Description of your product
You describe your product as a lamp that is designed to be installed above a vehicle’s front license plate using the two top mounting screws.  You state that the purpose of installing the lamps on a vehicle is to communicate to road users ahead of the vehicle whether the vehicle is decelerating, accelerating, or maintaining a constant speed. You state that your product consists of a strip of amber and white LEDs, although you do not provide the exact photometric intensity.  Either the white or amber LEDs are activated, depending upon the underlying condition.  You state that the white LEDs are activated and steadily burn while the vehicle is accelerating or travelling at a constant speed, and that the amber LEDs are activated and steadily burn while the vehicle is decelerating or stopped.  The LEDs are actuated by a microcontroller that detects the vehicle’s acceleration using internal accelerometers.  We also understand, based on our communications with you, that the brightness of the LEDs, the threshold levels of acceleration or deceleration activating the LEDs can be controlled through software, although it is our understanding that the product will be sold as a sealed unit that is not adjustable by the end user. You state that, although the LEDs activate independently of other vehicle systems (including the braking system), your product is powered by either a direct connection to the vehicle’s battery, or a 12-volt DC wire supply that is live when the vehicle is turned on.  The exterior housing consists of a weather-resistant polymer enclosure with gasket type seal. 

Applicable Requirements
Because you state that you intend to sell your product aftermarket, the primary potential restriction on its installation is the Safety Act’s “make inoperative” provision. 49 U.S.C.           § 30122.  The “make inoperative” provision states that manufacturers, distributors, dealers, rental companies and motor vehicle repair businesses may not “knowingly make inoperative any part of a device or element of design installed on or in a motor vehicle or motor vehicle equipment in compliance with an applicable motor vehicle safety standard” promulgated under the Safety Act.  This means that the businesses subject to the “make inoperative” provision would be prohibited from installing your product on a vehicle if doing so would take the vehicle out of compliance with any FMVSS.  The “make inoperative” provision does not apply vehicle owners, and these owners are not precluded from modifying their vehicle by NHTSA’s statutes or regulations.  State and local laws, however, may impact whether an owner may use a vehicle they have modified in a particular jurisdiction.

NHTSA considers the installation of an aftermarket lamp to violate the “make inoperative” provision if the installation of the same lamp as original equipment would violate FMVSS No. 108.[1]  As a non-required (“auxiliary”) lamp, your product is not required to meet any of the performance requirements in FMVSS No. 108 that it would need to meet if it were installed as original equipment.[2]  However, your product would be prohibited under FMVSS No. 108 (and thus, would violate the “make inoperative” provision) if it would “impair[] the effectiveness of lighting equipment required by this standard.” FMVSS No. 108, S6.2.1.    

Because the existence of impairment is, in part, a function of the context in which an auxiliary lamp is used, impairment must be determined on a case-by-case basis.  If a business subject to the “make inoperative” provision installs an aftermarket auxiliary lamp, that entity is responsible for determining whether doing so causes impairment.  If NHTSA determines that a business to which the “make inoperative” provision applies has impaired the effectiveness of required lamps, that business would be subject to a fine of up to $22,329 per violation.[3]  

Discussion
Based on the information you provided in your interpretation request, we have tentatively concluded that your product, if configured and installed in conformance with the restrictions described in letter, is unlikely to impair the effectiveness of a vehicle’s required lighting, and its installation on a vehicle would be unlikely to constitute a “make inoperative” violation.  There are four aspects of auxiliary lamps that are relevant to impairment: brightness (i.e., photometric intensity), color, location, and activation pattern.  What follows is a brief explanation of NHTSA’s safety concerns for each of these characteristics, along with examples of instances in which the agency would consider an auxiliary lamp to violate the impairment prohibition.  It should be noted that determining whether an auxiliary lamp impairs the effectiveness of required lamps involves a holistic assessment of the context in which the auxiliary lamps are used, and the examples provided are not exhaustive.  Thus, although this letter discusses these four characteristics separately, they should not be considered in isolation, nor should they be considered an exhaustive list of all the considerations that should be taken into account when making an impairment determination.

Brightness (Photometric Intensity)
NHTSA interprets the impairment provision to prohibit auxiliary lamps that are so bright as to obscure or distract from a vehicle’s required lamps.  For example, NHTSA has in the past stated that auxiliary lamps that were so bright as to “mask” adjacent required turning signal lamps would be prohibited due to impairment.[4]   While you do not state the precise brightness of your product, you state that its brightness “is limited and so would not impair or mask the vehicle’s headlamps or turn signals.”  Although the extent to which your product would interfere with a vehicle’s required lighting may vary depending on the design and performance of a particular vehicle’s required lamps, we do not believe your product would impair the effectiveness of a vehicle’s required lamps on the basis of brightness if its photometric intensity is sufficiently limited such that your product’s LEDs are noticeably dimmer than the vehicle’s required head lamps and front turn signal lamps.

Color
NHTSA interprets the “impairment” provision to prohibit auxiliary lamps that are colors the agency believes are likely to cause confusion to other road users.  For auxiliary lamps located on the front of the vehicle, colors that could cause confusion include red (which could be confused for a tail lamp), green (which could be confused for a traffic signal), and blue (which could be confused for a law enforcement vehicle).  By contrast, we have consistently said that amber and white lamps are permissible on the front of the vehicle.[5]  Because your product illuminates as either amber or white, depending on the underlying condition, we do not believe your product would impair a vehicle’s required lamps on the basis of color.

Location
NHTSA interprets the “impairment” provision to prohibit auxiliary lamps that are mounted in locations that cause them to interfere with the ability of a vehicle’s required lamps to achieve their purpose. For example, NHTSA has stated in the past that auxiliary lamps placed too close to FMVSS No. 108-compliant identification lamps would be prohibited because they may confuse other road users.[6]  The agency has long maintained that highway traffic safety is enhanced by the familiarity of drivers with established lighting schemes, which facilitates their ability to instantly recognize the meaning the lamps convey and respond accordingly. Therefore, any auxiliary lighting on the front of a vehicle must be located such that it would not interfere or be confused with other required lamps.  Your product is designed to be no wider than a license plate.  In the case where a license plate holder is mounted at the centerline of the vehicle at a lower mounting height than the vehicle’s required lamps, we think your product would, in most cases, be unlikely to interfere with the required lamps’ ability to achieve their function based on proximity.  However, we note that if a vehicle’s front license plate were located somewhere other than the centerline of the front bumper, and especially if it were located near a vehicle’s required lamps, it would be likely that the installation of your product on the front license plate holder would cause impairment.  Our determination in this letter that your product would be unlikely to impair the effectiveness of required lamps on the basis of mounting location assumes that your product is mounted on front centerline of the vehicle.  If your product were mounted somewhere other than the front centerline of the vehicle, we believe that it would be more likely to impair the effectiveness of the vehicle’s required lamps.

Activation Pattern
NHTSA interprets FMVSS No. 108 to require that all auxiliary lamps be “steady burning,” with the sole exception being auxiliary lamps that supplement required lamps that flash, such as turn signals.[7]  While this requirement has been relatively straight-forward to apply in the past, the introduction of new, programable lighting devices (such as your product) that are intended to communicate driver intent to other road users, has convinced the agency that it is necessary to clarify the meaning of “steady burning.”  To this end, we are clarifying here that the requirement that auxiliary lamps be steady burning does not mean that an auxiliary lamp is prohibited from being activated or deactivated automatically.  Rather, it means that the lamp must be steady burning when activated, and that the event that triggers its activation or deactivation (in this case, the vehicle’s rate of acceleration or deceleration exceeding a certain minimum threshold) cannot be so frequent or random that the lamp would distract or confuse other road users.  For example, a lamp that activated and deactivated on an extremely short time interval due to sensitivity to slight changes in the underlying conditions, would not be considered steady-burning.[8]  More traditional examples of lamps that are not steady-burning include, but are not limited to, strobes and turn signals.  By contrast, an auxiliary lamp that gradually changes in intensity based on ambient lighting conditions may be considered steady burning.[9] 

We have determined that your product would likely be considered steady burning because the event that triggers the activation of the LEDs—the deceleration of the vehicle—is likely not something that occurs so frequently or randomly that it would cause your product to appear to flash, which could confuse or distract other road users.  We note that this determination rests on the assumption that your product’s accelerometer is calibrated not to be overly sensitive to small changes in acceleration.    

We acknowledge that this interpretation supersedes some of our prior, more restrictive interpretations of the concept of “impairment.”  In particular, this letter specifically supersedes our previous interpretation concluding that all auxiliary lamps used to communicate “non-standard signals” (i.e., information other than what is communicated by required lamps) to other drivers would categorically impair the effectiveness of a vehicle’s required lamps.[10]  We reiterate, however, that auxiliary lamps may not be used to communicate non-standard signals (or, in fact, any signals) if doing so impairs the effectiveness of required lighting. 

Other Considerations
You should be aware that, even if your product is permissible under FMVSS No. 108 and the “make inoperative” provision, it is possible that State and local laws or restrictions may apply to your product. You may wish to consult the State and local transportation authorities in the areas you intend to market your product to make sure it is permissible under these laws. 

Finally, regardless of whether your product is subject to the restrictions of FMVSS No. 108 or the “make inoperative” provision, please be aware that if you or this agency finds your product to contain a safety-related defect after you market the product, you are responsible for conducting a notice and recall campaign as required under 49 U.S.C. §§ 30118-30120.

If you have further questions, please contact Daniel Koblenz of my staff at 202-366-2992.

Sincerely,

Jonathan C. Morrison
Chief Counsel

Dated: 9/9/19

Ref: FMVSS No. 108

[1] E.g., Letter to Timothy C. Murphy (Nov. 1, 2004), available at https://isearch.nhtsa.gov/files/GF006332.html.

[2] We note that auxiliary lamps that use plastic optical materials must comply with S14.1.2, and are subject to various other minor restrictions that are not relevant here.

[3] See 49 CFR part 578.

[4] E.g., Letter to Mark Wallach (Oct. 17, 2006), available at https://isearch.nhtsa.gov/files/Wallach.3.htm.

[5] E.g., Letter to Anthony M. Cooke (Oct. 19, 2006), available at https://isearch.nhtsa.gov/files/Legg1.htm.

[6] E.g., Letter to [REDACTED] (Jan. 21, 2004), available at https://isearch.nhtsa.gov/files/GF007705.html.

[7] Prior to 2007, FMVSS No. 108 included an explicit requirement that, with the exception of certain types of required lamps (e.g., turn signal lamps), all lamps on a vehicle, including auxiliary lamps, must be steady burning.  In 2007, NHTSA implemented an administrative reorganization of FMVSS No. 108 which, among other things, converted the blanket “steady burning” requirement (and its exceptions) into individual activation requirements for each type of required lamp.  See 72 FR 68234 (Dec. 4, 2007).  Although the reorganized rule no longer includes a blanket “steady burning” requirement, NHTSA stated in the preamble to the reorganized rule that its “rewrite of FMVSS No. 108 is considered administrative in nature because the standard’s existing requirements and obligations are not being increased, decreased, or substantively modified.” Moreover, NHTSA continues to believe that flashing auxiliary lamps would impair the effectiveness of required lamps by distracting or confusing other road users.

[8] E.g., Letter to Timothy C. Murphy (Nov. 1, 2004), available at https://isearch.nhtsa.gov/files/GF006332.html.

[9] E.g., Letter to Ian Goldstein (July 21, 1998), available at https://isearch.nhtsa.gov/files/18164.ztv.html.

[10] E.g., Letter to Kerry Legg (Feb. 21, 2008), available at https://isearch.nhtsa.gov/files/07-001583as.htm.

ID: 571.108 -- HDC Supplemental Turning Lamps -- HAAS -- 15-4155

Mr. Michael Haas

Haas Design Concepts
P.O. Box 575
Tiburon, CA  94920

Dear Mr. Haas:

This responds to your letter asking whether your product, the HAAS Design Concepts sequential perimeter lighting system, is permissible under Federal Motor Vehicle Safety Standard (FMVSS) No. 108, Lamps, Reflective Devices, and Associated Equipment (49 CFR § 571.108).  As explained below, your product is permissible if it operates in a manner that is synchronized with the vehicle’s required turn signals and satisfies the other criteria cited in this letter.

By way of background, the National Highway Traffic Safety Administration (NHTSA) is authorized under the National Traffic and Motor Vehicle Safety Act (49 U.S.C. Chapter 301) to issue FMVSSs that set performance requirements for new motor vehicles and items of motor vehicle equipment.  NHTSA does not provide approvals of motor vehicles or motor vehicle equipment.  Instead, manufacturers are required to self-certify that their products conform to all applicable safety standards that are in effect on the date of manufacture, before the product can be offered for sale.  Manufacturers must also ensure their products are free of safety-related defects.   

The following interpretation of FMVSS No. 108 is based on our understanding of the information provided in your letter, and is limited to the system you described. 

Description of Your Product

From your letter and follow-up correspondence with my staff, we understand that your product consists of a strip of 24 amber-colored LEDs that are mounted inside a 30-inch long “Metalized Plastic rail.”[1]  This rail would be attached horizontally along the lower portion of the exterior of a vehicle’s driver and front passenger doors with “two-sided automotive acid rain tape.”  The LED strip would be wired into a “Sequential Controller” through a hole in the door panel.  This Sequential Controller in turn would be “fastened” to the vehicle’s existing turn signal system.

We understand that your product operates as follows:  When the headlamps are activated, all 24 of your product’s LEDs illuminate as steady-burning lamps.  When the driver activates the left or right turn signals, the amber-colored LEDs on the corresponding side become brighter sequentially from the “front” end of the rail (i.e., the end nearer to the front of the car) to the rear end of the rail.  It is our understanding that this sequential turn signal function can be activated regardless of whether the headlamp system is on or off, the only difference being the initial brightness of the LEDs (dim vs. off).  You state that your product’s cycle of sequentially activating LEDs is timed so that the cycle restarts at a rate that matches the flash rate of the required turn signals, and that if the turn signal is cancelled, the LEDs immediately return to their steady-burning (or “off”) state even if they are only partway through a cycle.

Applicable Requirements

Motor vehicle lighting that is installed as original equipment is regulated under FMVSS No. 108.  FMVSS No. 108 requires that vehicles be equipped with certain types of lamps (“required” lamps), and sets out specific performance standards that those lamps must meet.  Non-required (or “auxiliary”) lamps, while still regulated under FMVSS No. 108, are not required to meet specific performance requirements in the same way that the required lamps are.  Rather, auxiliary lamps are subject to S6.2.1, which states: “No additional lamp, reflective device, or other motor vehicle equipment is permitted to be installed that impairs the effectiveness of lighting equipment required by this standard.”

NHTSA has issued numerous interpretations on the meaning of the phrase “impairs the effectiveness” in S6.2.1.  For example, an auxiliary lamp impairs the effectiveness of required lighting equipment if it causes “confusion with the signal sent by another [required] lamp.”[2]  Further, an auxiliary lamp that supplements a specific required lamp should “perform in the same manner, and perform the same function, as the original equipment it is intended to supplement.”[3]  The question of whether an auxiliary lamp impairs required lighting equipment is usually decided on a case-by-case basis. 

Discussion

We do not believe that your product would impair the effectiveness of a vehicle’s required lighting equipment in either its steady-burning state or when it sequentially flashes for signaling purposes.  Please note, however, that your product may need to conform to certain requirements relating to the vehicle’s hazard warning system, depending on whether your product activates with the vehicle’s hazard warning lamps.

We do not believe that your product would impair the effectiveness of required lamps in its steady-burning state because it operates in a way that is consistent with FMVSS No. 108’s requirements for a side marker lamp (which is the type of signal lamp your product most closely resembles).[4]  Specifically, your product activates when the vehicle’s headlamp system is
activated.  Its LEDs are steady-burning except when they flash as part of the turn signal system.  Furthermore, the LEDs are amber, which we have previously determined is the only appropriate color for auxiliary side marker lamps that are located towards the front end of the vehicle.[5]

We also do not believe that your product would impair the effectiveness of the vehicle’s required turn signals when flashing for signaling purposes because your product’s cycle of sequentially illuminating its LEDs repeats at a rate that is synchronized to the required turn lamps.[6]  The illumination sequence restarts in time with each flash of the required turn signal lamps, and when the turn signal is cancelled, your product returns to a steady-burning state (or turns off) immediately.[7] 

Although you do not discuss your product’s functionality as a hazard lamp in your interpretation request, we believe it is possible that, depending on how your product is wired, its LEDs may activate as part of the vehicle’s hazard warning system.  If this is the case, your product would need to meet additional requirements to ensure it does not impair the effectiveness of the vehicle’s hazard lamps.  S6.6.2 of FMVSS No. 108 requires a “vehicular hazard warning [signal] operating unit,” [8] which is defined in S4 as “a driver-controlled device which causes all required turn signal lamps to flash simultaneously to indicate to approaching drivers the presence of a vehicle hazard.”  Although your product is not a “required turn signal lamp,” if it is activated as part of the vehicular hazard warning signal system, its LEDs would need to flash simultaneously when the hazard warning lights are activated to be permissible under FMVSS No. 108.  If the LEDs illuminate sequentially rather than “simultaneously,” it could cause driver confusion and could potentially interfere with the effectiveness of the hazard warning system.

Lamp Brightness

Separate from your product’s sequential activation pattern, we are concerned that the brightness of your product’s LEDs could potentially impair the vehicle’s required signal lamps.  Specifically, if the LEDs are too bright, it could obscure the vehicle’s required signal lamps, or could cause other drivers not to recognize that your product supplements the vehicle’s required turn signals.  To avoid the possibility of impairment due to brightness, it is our view that a supplemental signal lamp such as your product should not be noticeably brighter than the required lamps that it supplements.  Note that, because the question of impairment should be analyzed on a vehicle-by-vehicle basis, the maximum brightness of as auxiliary signal lamp on a particular vehicle must be determined based on the brightness of the required signal lamps that are actually installed as original equipment on that vehicle—even if FMVSS No. 108 permits signal lamps of that type to be brighter.

Make Inoperative Provision

Please note that your product would be subject to the Safety Act’s “make inoperative” provision (49 U.S.C. § 30122).  The “make inoperative” provision prohibits manufacturers, distributors, dealers, rental companies and motor vehicle repair businesses from “knowingly mak[ing] inoperative any part of a device or element of design installed on or in a motor vehicle or motor vehicle equipment in compliance with an applicable motor vehicle safety standard” promulgated by NHTSA.  If a business that falls into one of these categories were to install your product on a vehicle in a way that interferes with a vehicle’s required lighting or otherwise renders a vehicle’s other safety features inoperative, that entity could be subject to a NHTSA enforcement action.  Historically, NHTSA has viewed the “impairment” and “make inoperative” standards as identical (i.e., lighting equipment that is prohibited under the impairment provision would also be prohibited under the make inoperative provision, and vice versa).[9]

If you have further questions, you may refer them to Daniel Koblenz of my staff at (202) 366-2992.

Sincerely,

Jonathan C. Morrison

Chief Counsel

Dated: 5/6/19

Ref: FMVSS No. 108

[1] You explain that these LEDs “are sealed by clear-colored cocking inside the cap rail which are protected from the elements by Smoke Colored Polycarbonate plastic covers,” and that the polycarbonate material you use to cover your product’s LEDs “is similar to the polycarbonate used to protect all automotive head lights and tail lights.”  We would like to point out that the polycarbonate that is typically used to protect required lighting cannot meet the requirements of S14.4.2 without some sort of protective coating. 

[2] Letter to Byung M. Soh (Sept. 13, 1988), available at https://isearch.nhtsa.gov/gm/88/nht88-3.100.html.

[3] Letter to Mr. Bart W. Hill (Aug. 27, 1999), available at http://isearch.nhtsa.gov/files/20174.ztv.htm.

[4] Letter to Robert M. Currie (Jan. 31, 1997), available at https://isearch.nhtsa.gov/files/13208.ztv.html.

[5] Letter to Robert J. Ponticelli (Aug. 18, 1995), available at https://isearch.nhtsa.gov/files/1083.html.

[6] Letter to Jerry Koh (Feb. 6, 1986), available at https://isearch.nhtsa.gov/gm/86/86-2.50.html 

[7] We note that side marker lamps do not need to flash simultaneously with required turn lamps to be synchronized.  See letter to Warren M. Heath (Dec. 23, 1969), available at https://isearch.nhtsa.gov/aiam/aiam0192.html.    

[8] The text of S6.6.2 uses the term “vehicular hazard warning operating unit,” which inadvertently omits the word “signal.”

[9] E.g., Letter to Timothy C. Murphy (Nov. 1, 2004), available at https://isearch.nhtsa.gov/files/GF006332.html.

ID: 571.108--HELP System--Powers

Mr. Stephen T. Powers

Emergency Safety Solutions, Inc. (ESS)

825 Town & Country Lane

Houston, TX 77024

Dear Mr. Powers:

This letter responds to your request for an interpretation of whether your company’s product, the Hazard Enhanced Lighting Package (HELP) system, would be permitted under Federal Motor Vehicle Safety Standard (FMVSS) No. 108, Lamps, reflective devices, and associated equipment.  As explained below, our answer is yes, but only if the product is automatically activated following a crash that disabled the vehicle on which it is installed, or if manual activation of the system is restricted to when the vehicle is not moving and the parking brake is engaged.

By way of background, the National Highway Traffic Safety Administration (NHTSA) does not provide approvals of motor vehicles or motor vehicle equipment.  Instead, manufacturers are required to self-certify that their products conform to all applicable FMVSS that are in effect on the date of manufacture, before the product can be offered for sale. Manufacturers must also ensure their products are free of safety-related defects.  This letter represents NHTSA’s opinion concerning whether your product would be permitted under FMVSS No. 108.  It is not an approval of your product, nor is it an endorsement of the safety claims made in your initial interpretation request and supplemental submission.

Description of the HELP system

ESS describes the HELP system as an “added functionality” to the vehicle’s turn signal[1] which causes the lamps to flash at an accelerated rate of between 2-6 hertz to create “a strobing effect.”  According to ESS, this function could be activated in two ways: automatically when the vehicle is in “a significant crash,” or manually by pressing the hazard button while the hazard warning system is active and the vehicle is stopped.  In ESS’s supplemental submission, it clarified that, once the HELP system is manually activated, pressing the hazard button would switch the vehicle back to the hazard warning system, and pressing the hazard button again would turn both systems off.  ESS states that if the vehicle starts moving while the HELP system is activated, the system will deactivate, but does not specify whether this deactivation would be in the form of switching to the hazard warning system, or both systems deactivating.  ESS states that the system would use the vehicle’s required turn signal lamps, and that  the lamps would continue to comply with photometric and other requirements when the HELP system is activated.

Discussion

We view the HELP system as an auxiliary vehicular hazard warning signal flasher that is separate from the required vehicular hazard warning signal flasher, and which is activated under certain limited conditions.  Because it is not required equipment, the primary restriction that FMVSS No. 108 imposes on the HELP system is that the system may not impair the effectiveness of the vehicle’s required lighting equipment.[2] 

As discussed below, we have determined that there are two aspects of the HELP system that could potentially impair the effectiveness of a vehicle’s required lighting equipment. The first relates to the manner in which the driver manually activates the system using the hazard button. The second relates to the actual operation of the HELP system once it is activated.   

System Activation

FMVSS No. 108 requires that a vehicle’s hazard warning system be operated by a switch (or set of switches) that can be actuated with a single action by the driver.[3]  Although this requirement is technically met by the manual switch described in your supplemental submission, since the hazard warning system could be activated with one action both when the HELP system is activated and when it is not activated, we believe that the method of activation you describe would impair the effectiveness of the hazard warning system, as it would confuse a driver who is not familiar with the HELP system.  Since most vehicles are designed in a way that a second press of the hazard button deactivates the hazard warning system, it is reasonable to foresee a scenario in which a driver of a vehicle equipped with the HELP system presses the hazard button intending to turn both systems off, and not realizing that doing so would require two additional presses. 

Given the risk of accidental activation of both the HELP system and the required hazard warning system due to confusion over the activation of the two systems using a single button, we have concluded that incorporating manual activation of the HELP system into the hazard button would impair the effectiveness of lighting equipment required under FMVSS No. 108.

System Operation

In an interpretation letter analyzing impairment under FMVSS No. 108, NHTSA explained that there are, in essence, four ways that a lamp could impair effectiveness: brightness, color, location, and activation pattern.[4]  Since the HELP system operates through the use of the vehicle’s existing required turn signal lamps, and does not purport to alter the brightness, color, or location of those lamps, we do not believe use of the HELP system would impair the effectiveness of the vehicle’s lighting system on the basis of brightness, color, or location. 

However, there are concerns regarding the fourth criterion: the activation pattern of the turn signal lamps.  When a required turn signal lamp is activated using either the required turn signal flasher or the required vehicular hazard warning signal flasher, the vehicle’s turn signal lamps must flash at a rate of 1-2 hertz.[5]­­,[6] ­ ­­­­However, when the turn signal lamps are activated using the HELP system, they would flash at a rate that could be as much as three times higher (2-6 hertz).  Ultimately, the question of whether the HELP system is permitted under FMVSS No. 108 depends on whether this higher flash rate would impair the effectiveness of the vehicle’s required lighting equipment.

We have considered this impairment issue by analyzing the HELP system as it would be used in two separate circumstances.   

First is its capability of automatically activating following a serious crash.  FMVSS No. 108 requires that a hazard warning operating unit be “driver controlled.”  However, as NHTSA explained in letters to Mr. Timothy Bartlett[7] and Mr. Brian Latouf,[8] automatic activation of the hazard warning system is permitted in certain, limited situations in which there was no ambiguity regarding the reason for the hazard system’s activation.  In the Bartlett letter, we stated the hazard warning system could activate automatically following a crash.  In the Latouf letter, we said the hazard warning signals could activate when a vehicle operated using GM’s “Super Cruise” partial automation system comes to a stop after finding the driver unresponsive.  In both situations, the purpose for which the hazard warning system is being used—to warn other road users of the disabled or stopped vehicle—is unambiguous.  

Applying this reasoning to your system, we likewise conclude that the HELP system would not impair a vehicle’s required lighting equipment when limited to automatic activation following a crash that disables the vehicle, such as one in which the air bags are triggered.  As you indicated in your request, the purpose of the HELP system’s 2-6 hertz flash rate is to increase conspicuity of a vehicle in an emergency.  We believe the risk of impairment is low if activated when the vehicle is disabled following a crash, since the crash would almost certainly create an emergency in which conspicuity of the vehicle’s lamps is of primary importance.[9] 

The second circumstance involves the manual activation of the HELP system.  While the HELP system is an auxiliary system that is not subject to the requirements that apply to the hazard warning system, NHTSA has the same concern about the ambiguity of the meaning of the HELP system’s operation that it expressed in the letters to Mr. Bartlett and Mr. Latouf.  Unlike an automatic activation when the vehicle is disabled following a crash, if the system can be manually activated, NHTSA is concerned that the HELP system could be activated in a wide array of non-emergency situations that could confuse other road users.  Given that there is a higher risk of impairment if the vehicle allows manual activation of the HELP system, we have concluded that if it is possible to activate the system manually, your system is permissible under the impairment prohibition only if its activation is restricted to when the vehicle is not moving and either the vehicle is in park or the parking brake is engaged.  Moreover, consistent with our determination in the previous section, the switch that activates the HELP system must be separate from the hazard button, and must be designed so that it is not easily confused with the hazard button.  

Please note that, while this letter finds that the HELP system does not necessarily violate the prohibition on impairment, it is the responsibility of the certifying vehicle manufacturer to ensure that the particular implementation of the system in a vehicle would not impair the effectiveness of required lighting equipment.

Sincerely,

Jonathan C. Morrison

Chief Counsel

Dated: 1/19/21

Ref: FMVSS No. 108

[1] You state in your letter that the system would activated the “hazard warning lamps.”  Hazard warning lamps are not a type of lamp that NHTSA regulates.  Rather, vehicles are required to be equipped with a “Vehicular hazard warning signal flasher,” which is a device that, when activated, causes all the vehicle’s turn signal lamps to flash simultaneously.

[2] See FMVSS No. 108, S6.2

[3] See FMVSS No. 108, S9.6.2

[4] https://isearch.nhtsa.gov/files/571.108%20--%20AMA%20--%20Schaye--front%20color%20changing%20light.htm

[5] See FMVSS No. 108, S14.9.3.5.3, S14.9.3.9.3, and Figure 2

[6] Although you were correct when you stated in your supplemental submission that this flash rate was chosen in large part due to the limitations of incandescent light sources that existed at the time the standard was adopted, the maximum flash rate is specified in Standard 108, and cannot be changed except through the rulemaking process.

[7] https://isearch.nhtsa.gov/files/23695.ztv.html

[8] https://isearch.nhtsa.gov/files/16-1289%20(GM%20hazard%20innovative)%20--%2028%20Apr%2016%20rsy.htm

[9] To be clear, NHTSA is unable to agree with your assertions that the HELP system would provide the safety benefits you describe in your request and supplemental submission. Our letter today does not endorse or concur with such statements.

ID: 571.108--Supplement beam--Boykin--16-0884

Mr. Marcus Boykin

B-G Innovative Safety Systems, LLC

79 Pasture Road

Lexington, TN 38351

Dear Mr. Boykin:

This responds to your letter asking about the application of Federal Motor Vehicle Safety Standard (FMVSS) No. 108, “Lamps, reflective devices, and associated equipment,” to a lighting system your company has developed.  In your letter and phone conversation with John Piazza of my staff, you describe your product as “an auxiliary vehicle lamp operating system” for use both as original equipment (OE) and as aftermarket equipment.

You state that your product, which adapts to the existing headlight wiring harness, provides a supplemental lower beam from the existing upper beam when the lower beam fails.  We understand that, when the lower beam is not in a failed state, the headlight system, controls, and telltales function normally.  If the lower beam is selected and has failed or does fail, your system provides a supplemental lower beam from the existing upper beam.  You state that the lighting on the converted upper beam is “diffused down to the same output illumination as” the lower beam.  If the upper beam is selected, the upper beam will continue to function normally. 

We further understand that, with respect to the OE version of your product, you contemplate a dashboard warning to warn the driver that the normal lower beam is not functioning.  In the aftermarket version of your product, once the vehicle’s lower beam has failed and your device is providing a supplemental lower beam, every time the engine is started the headlights will flash three times to warn the driver that the original equipment lower beam is not operating and that your device is providing a supplemental lower beam.  You state that you are seeking “interpretation and approval” of your device.

As we explain below, while NHTSA does not provide approvals of motor vehicles or motor vehicle equipment and does not make compliance determinations outside of an agency compliance proceeding, we are able to provide you with our interpretation of how NHTSA’s statute and regulations would apply to your product as you have described it to us.  We believe that your product would be considered supplemental lighting.  As such, it may be installed as original equipment as long as it does not impair the effectiveness of any required lighting.  If your product is offered as aftermarket equipment, it would not be directly subject to FMVSS No. 108 but would be subject to the Safety Act’s make inoperative prohibition.

Background

The National Highway Traffic Safety Administration (NHTSA) is authorized by the National Traffic and Motor Vehicle Safety Act (Safety Act), 49 U.S.C. Chapter 301, to issue Federal motor vehicle safety standards that set performance requirements for new motor vehicles and new items of motor vehicle equipment.  NHTSA does not provide approvals of motor vehicles or motor vehicle equipment and does not make determinations as to whether a product conforms to the relevant FMVSS outside of an agency compliance proceeding.  Instead, the Safety Act requires manufacturers to self-certify that their products conform to all applicable FMVSSs.  Manufacturers must also ensure that their products are free of safety-related defects.

This letter provides you with our interpretation of how the statute and regulations administered by NHTSA would apply to your product as you have described it to us, based on our understanding of the information provided.  This is not an “approval” of your product.

Vehicle lighting sold as OE is regulated under FMVSS No. 108.  (All references in this letter are to subsections of FMVSS No. 108 unless otherwise noted.).  FMVSS No. 108 requires vehicles to be equipped with certain types of lamps (known as “required” lamps), which must meet very specific and detailed performance standards.[1]  All other lamps are considered “supplemental” lamps.[2]  Unlike OE required lamps, OE supplemental lamps are not required to meet any specific performance requirements.  However, they are required to comply with certain generally-applicable provisions of FMVSS No. 108.  One of these provisions is set forth in S6.2.1, which states: “No additional lamp, reflective device, or other motor vehicle equipment is permitted to be installed that impairs the effectiveness of lighting equipment required by this standard.”

Both OE and aftermarket vehicle lighting are subject to the Safety Act’s “make inoperative” prohibition (49 U.S.C. § 30122), which prohibits a manufacturer, distributor, dealer, rental company, or motor vehicle repair business from knowingly making inoperative any part of a device or element of design installed on or in a motor vehicle or motor vehicle equipment in compliance with an applicable FMVSS.  While this “make inoperative” prohibition does not apply to individual vehicle owners, NHTSA encourages vehicle owners not to remove or otherwise tamper with vehicle safety equipment.  Also, any modifications made by a vehicle owner would have to comply with applicable state law. 

Discussion

FMVSS No. 108 requires vehicles to be equipped with one of several permissible headlighting systems.  Headlighting systems are comprised of headlamps and associated hardware.  The purpose of headlighting is primarily to provide forward illumination.[3] 

The threshold issue presented by your request is whether your product is part of the required headlighting system, and thus subject to FMVSS No. 108’s requirements applicable to headlighting systems or, instead, supplemental lighting that is regulated by FMVSS No. 108’s impairment provision.   

In determining whether lighting equipment that provides forward illumination is part of the required headlighting system or, instead, supplemental lighting, NHTSA looks at several factors.  These include: (1) where the lamp directs its light; (2) whether it uses a headlamp replaceable light source to emit a beam that provides significantly more light flux than supplemental cornering lamps or fog lamps; (3) whether the lamp is intended to be used regularly, or is limited to more narrow driving conditions and situations; (4) whether the vehicle’s complete lighting system, not including the lamp in question, would include all of the forward lighting equipment required by FMVSS No. 108;  (5) whether there is a manual on/off switch; and (6) whether the lighting feature is one that activates only upon the failure of an element of the required headlighting system and acts as a temporary backup of that lighting element.[4] 

The last of these factors is most relevant to your product.  Prior agency interpretations have found that a lighting feature that activates an upper beam light source when the lower beam fails or a lower beam headlamp upon the failure of an upper beam headlamp is supplemental lighting.[5]  The system you describe activates a back-up beam only upon the failure of the required lower beam.  Accordingly, we believe it is supplemental lighting. 

Since you contemplate selling your supplemental lighting device as original and/or aftermarket equipment, we will consider the requirements affecting each of these.

Supplemental lighting installed as original equipment

Supplemental lighting installed as OE (i.e. before sale to first purchaser other than for resale) is permitted if the lighting does not impair the effectiveness of any lighting equipment required by FMVSS No. 108 (S6.2.1).  If you are the manufacturer of original lighting equipment required by FMVSS No. 108, but not the manufacturer of the vehicle on which it is installed, the vehicle manufacturer, and not you, has the legal responsibility under the Safety Act to certify that the vehicle complies with FMVSS No. 108 and all other applicable FMVSSs.  Accordingly, the vehicle manufacturer must certify that supplemental lighting installed as OE complies with S6.2.1.  Effectiveness may be impaired if, among other things, the device creates confusion with the signal sent by another lamp, or functionally interferes with it, or modifies its candlepower to either below the minima or above the maxima permitted by the standard.[6] 

Table XIX has specific photometry requirements (maxima and minima) for lower beams.  Activation of an upper beam light source when a lower beam source fails raises considerations of glare.  The lower beam maxima are meant to ensure that other roadway users are not glared.  If your device produces a supplemental beam that exceeds the lower beam photometric maxima, we would consider that to impair the effectiveness of the headlighting system.  Accordingly, your device needs to modify the upper beam to ensure that the lower beam photometric maxima are not exceeded. [7]  Because your device is supplemental lighting, it would not be required to provide sufficient illumination to meet or exceed the photometric minima required for a lower beam headlamp.  However, we note that by reducing the output illumination of the upper beam to that of the lower beam, the reduced upper beam would provide only a limited amount of illumination that may not be sufficient to usefully illuminate the road. 

For your information, we also point out below several other requirements of which you should be aware in designing and manufacturing your product.  (Note that it is the responsibility of manufacturers, and not NHTSA, to identity all FMVSSs applicable to their products and certify the compliance of their products with the standards.)

• Your product must not interfere with the activation and operation of the upper beam.    
•  It may not impair the effectiveness of the upper beam headlamp indicator required by S9.5.  When your device is providing a supplemental lower beam, it should do so in a way that the upper beam indicator is not activated.  Also, when the driver (or vehicle, if it has a semiautomatic headlamp beam switching device, or automatic headlights) has activated the upper beams, the upper beams must be activated and the upper beam indicator must be activated.  
• S9.4 requires that “the lower and upper beams must not be energized simultaneously except momentarily for temporary signaling purposes or during switching between beams.” 
• The headlamps must be steady burning, except that they may be flashed for signaling purposes.[8]  We would not consider your system’s momentary flashing function as violating this requirement because it is similar to a signaling function and would not be likely to confuse other motorists because it only flashes upon start-up.  
• The device generally should not function in such a way that it would be likely to confuse other motorists (for example, it should not mask the ability of other drivers to perceive the front turn signal).
• If a telltale or control is offered as original equipment, it must comply with any relevant requirements in FMVSS No. 101, “Controls and displays.”

We wish to point out that Table I-a requires that “[t]he wiring harness or connector assembly of each headlighting system must be designed so that only those light sources intended for meeting lower beam photometrics are energized when the beam selector switch is in the lower beam position[.]”  Although it may appear that a device such as yours might not meet this requirement, NHTSA has interpreted the requirement otherwise. 

This issue arises if the lower beam is activated (with the beam selector switch in the lower beam position) and then fails, after which a system (such as yours) activates a modified upper beam as a backup lower beam.  If the backup lower beam utilizes upper beam light sources that are not normally used for meeting lower beam photometrics, the backup lower beam might be viewed as violating this requirement.[9]  However, prior interpretations have concluded that this Table I-a requirement does not apply to a failure condition in which a supplemental beam supplements a failed lower or upper beam, assuming the supplemental light does not otherwise impair the effectiveness of any required lighting.[10]  Applying that line of reasoning, we believe that your system would not create a noncompliance with the Table I-a requirement.

Supplemental lighting offered and installed as aftermarket equipment

Supplemental lighting offered as aftermarket equipment (accessory lighting) is not directly subject to FMVSS No. 108, which applies only to original equipment and lighting equipment manufactured to replace original lighting equipment required by FMVSS No. 108.  Section 30122 of the Safety Act, however, prohibits a manufacturer, distributor, dealer, rental company, or motor vehicle repair business from knowingly making inoperative, in whole or in part original required lighting equipment.  In applying the make inoperative prohibition to accessory lighting we typically ask whether the accessory lighting would impair the effectiveness of any required lighting.  Generally, if an item of accessory lighting would not be permitted as original equipment, commercial entities will not be permitted to install the lighting as an aftermarket accessory for a vehicle in use.  Thus, the make inoperative analysis is generally the same as the impairment analysis we applied above in the context of supplemental lighting installed as original equipment.  We observe that, due to varying headlamp designs throughout the vehicle fleet, there may be potential compatibility issues with the product you describe and certain vehicles.  In addition, manufacturers of aftermarket lighting accessories are subject to the Safety Act’s defect notification and remedy requirements discussed above.    

We also note that manufacturers of equipment to which an FMVSS applies must meet the manufacturer identification requirements set out in 49 CFR Part 566.  For these and other requirements, you may consult NHTSA’s New Manufacturers Handbook, available at https://www.nhtsa.gov/sites/nhtsa.dot.gov/files/manufacturer_information_march2014.pdf.

If you have any further questions, please contact John Piazza at (202) 366-2992.

Sincerely,

Jonathan Morrison

Chief Counsel

Dated: 5/17/19

Ref: FMVSS No. 108

[1] The standard’s performance requirements also apply to lamps that are “for replacement of like equipment on vehicles to which this standard applies.”  On a related matter, we note that you state that “drivers with a failed light are out of compliance.”  This is incorrect, as FMVSS No. 108 does not regulate lighting in use.  Therefore, if a headlamp fails in operation, the vehicle is not “out of compliance” with the Federal standard (state laws may apply to in-use performance).

[2] NHTSA also uses the term “auxiliary” lamps.

[3] S4 (“Headlamp means a lighting device providing an upper and/or a lower beam used for providing illumination forward of the vehicle.”) (Formatting in original.)

[4] Letter to [Redacted] (Jan. 21, 2004) ((1)-(5)), available at https://isearch.nhtsa.gov/files/swivelinglamp.3.html (last accessed June 20, 2018); letter to L. W. Camp, Ford Motor Company (July 15, 1998) ((6)), available at https://isearch.nhtsa.gov/files/18080.ztv.html (last accessed June 20, 2018). 

[5] Letter to L. W. Camp, supra (lower beam backing up upper beam); letter to Ian Goldstein, Safe Passage Technologies (July 21, 1998) (upper beam backing up lower beam), available at https://isearch.nhtsa.gov/files/18164.ztv.html.

[6] See, e.g., letter to Byung M. Soh, Target Marketing Systems, Inc. (Sept. 13, 1988), available at https://isearch.nhtsa.gov/gm/88/nht88-3.100.html (last accessed June 20, 2018).

[7] Letter to Ian Goldstein, supra (“Because headlamps are primarily operated on the lower beam, activation of an upper beam light source when a lower beam source fails raises considerations of glare . . . the upper beam in this instance ideally should be activated at a markedly reduced intensity such that it does not impair the effectiveness of required lighting devices [S6.2.1], or, more specifically, that, as a lower beam substitute[] it does not compromise turn signal visibility.”)

[8] Table I-a.

[9] Whether this would occur depends on the design of that particular headlighting system.  For example, this would not be the case if the headlighting system used the same light sources for both the lower and the upper beams.

[10] Letter to L. W. Camp, supra (lower beam supplementing failed upper beam).  See also letter to Ian Goldstein, supra (modified upper beam supplementing failed lower

ID: 571.111 -- Camera Obstruction -- Keller -- 18-0661

Richard A. Keller, III
27795 Oakachoy Loop
Daphne, AL 36526

Dear Mr. Keller:

This responds to your inquiry on behalf of Bruno Independent Living Aids, Inc., concerning the rear backup camera requirement (S6.2) of Federal Motor Vehicle Safety Standard (FMVSS)   No. 111, “Rear visibility.”  We apologize for the delay in responding.  You ask several questions on whether installation of the “Bruno ASL-700 Chariot” and “ALS-250 Outsider” by vehicle owners would be permitted under the National Traffic and Motor Vehicle Safety Act.  As explained below, our answer is yes.    

In your letter, you state that the two products are “vehicle exterior-located platform lifts which can be temporarily attached to the vehicle.”  You state the products are sold to transport unoccupied personal mobility devices used by vehicle occupants with mobility impairments.  You describe the Bruno ASL-700 Chariot as a “trailer” that conforms to all applicable FMVSS trailer requirements.  You describe the Bruno ASL-250 Outsider as a “cargo carrier” that is supported entirely by a vehicle’s trailer hitch, and that does not touch the ground.  You state that both products are intended to be sold in the aftermarket, and that both would be attached to a vehicle’s trailer hitch by the vehicle’s owner.

You ask the following questions concerning the applicability of NHTSA’s requirements to the ASL-700 Chariot and ALS-250 Outsider.  We have restated your questions below, followed by our answers.  Our answers are based on our understanding of your descriptions of the products.

1.     Since the Bruno ASL-700 Chariot personal mobility device carrier is in compliance with all applicable FMVSS trailer regulations, and is a trailer, it is therefore not subject to the requirements of 49 CFR § 571.111, section S6.2 Rear visibility. As such, it is not required to provide a rear view [sic] camera.  Is that interpretation correct?

The answer is yes.  As set forth in S6.2, the rear visibility requirements apply only to a “multipurpose passenger vehicle, low-speed vehicle, truck, bus, and school bus with a GVWR of 4,536 kg or less.”  If, as you say, the Bruno ASL-700 Chariot is a trailer, it is not subject to FMVSS No. 111.

2.     Since the Bruno ASL-700 Chariot and Bruno ASL-250 Outsider are temporary equipment installed or removed, when needed, by the vehicle owner, the Agency Response to this issue in the Final Rule is that the rule (49 CFR § 571.111, section S6.2 Rear visibility) does not apply. Is that interpretation correct?

Our answer is S6.2 does not apply.[1]  As explained in our answer to question 1, if neither the Bruno ASL-700 Chariot nor the Bruno ASL-250 Outsider is a “multipurpose passenger vehicle, low-speed vehicle, truck, bus, [or a] school bus with a GVWR of 4,536 kg or less,” they are not subject to S6.2.  This answer is the same as “the Agency Response…in the Final Rule” to which you refer.  

(Please note that the installation of “temporary” products “by the vehicle owner” is not particularly germane to question 2 (which concerns the applicability of S6.2), but is germane to question 3.  Stated differently, if an FMVSS applies to the Chariot or the ASL-250, the fact that the products are meant to be temporarily installed or removed by the vehicle owner would not change the applicability of that standard to the product.)

3.  Since the Bruno ASL-700 Chariot and Bruno ASL-250 Outsider personal mobility device carriers are temporary equipment attached to the vehicle at the Class l, II, or III receiver hitch by the vehicle owner, and while they may when attached and loaded block the rearview camera, they are not making inoperative the OEM rearview camera under 49 USC § 30122 — Making safety devices and elements inoperative, as discussed in the Public Law 110-189 — 110th Congress and NHTSA-2010-0162-0256 Final Rule, since that prohibition is directed at a manufacturer, distributor, dealer, [rental company] or motor vehicle repair business modifying the vehicle.  Is that interpretation correct?

The Safety Act’s “make inoperative” prohibition (49 U.S.C. 30122) states:

A manufacturer, distributor, dealer, rental company, or motor vehicle repair business may not knowingly make inoperative any part of a device or element of design installed on or in a motor vehicle or motor vehicle equipment in compliance with an applicable [FMVSS] unless the manufacturer, distributor, dealer, rental company, or repair business reasonably believes the vehicle or equipment will not be used (except for testing or a similar purpose during maintenance or repair) when the device or element is inoperative.

Our answer is the vehicle owner installing the Bruno ASL-700 Chariot or Bruno ASL-250 Outsider on his or her own vehicle is not subject to the “make inoperative” prohibition.[2]  We assume that the vehicle owner to whom you refer is not a manufacturer, distributor, dealer, rental company, or motor vehicle repair business.  In addition, because States have the authority to regulate the use of vehicles, you should check with State officials to see if State law would allow motorists to block the view of the camera of the primary vehicle.

In closing, we note that you have petitioned NHTSA to amend 49 CFR Part 595 (“Make inoperative exemptions”), Subpart C (“Vehicle modifications to accommodate people with disabilities”) to include the FMVSS No. 111 backup camera requirements, and that NHTSA informed you that the agency has granted your petition in a letter sent on November 5, 2018.  NHTSA is addressing your petition in the context of a rulemaking proceeding. 

We hope this answers your questions. 

Sincerely,

Jonathan C. Morrison
Chief Counsel

Dated: 5/3/19

Ref: FMVSS No. 111

[1] We would like to clarify that if the Bruno ASL-700 Chariot is a trailer, as you say, it is a “motor vehicle” under our regulations, and not “temporary equipment.” 

[2] Note also footnote 1, supra.  In addition, please be aware that the make inoperative provision also applies to rental companies. 

ID: 571.208--Center seat--Glickenhaus--19-1007

Mr. Jesse Glickenhaus

Managing Director

Scuderia Cameron Glickenhaus LLC

8 Kendall Avenue

Sleepy Hollow, NY 10591

Dear Mr. Glickenhaus:

This responds to your March 25, 2019 request for interpretation asking how the requirements of Federal Motor Vehicle Safety Standard (FMVSS) No. 208; Occupant crash protection, apply to a passenger car and multipurpose passenger vehicle (MPV) with centrally located front seating positions.  Specifically, you ask us to confirm that FMVSS No. 208 does not require air bags for the central front seat(s) if they are not “outboard designated seating positions” as defined in 49 CFR § 571.3(b).  As we explain below, based on the information and representations provided in your request, FMVSS No. 208 does not require front air bags for the front seat(s) in these vehicles.    

Description of your vehicle designs and request for interpretation

 Your request concerns two different vehicle designs.  The first is a passenger car with the driver’s seat located at or near the longitudinal centerline of the vehicle.  You state that the driver’s seat will not meet the definition of an “outboard designated seating position” as defined in 49 CFR § 571.3(b).[1]  In the illustrations in your letter, the driver’s seat is depicted as the only front seat; there are two rear seats.  You state that the images accurately reflect the placement of the front driver’s seat, but that the shape and final placement of the rear passenger seats are not finalized.  You ask us to confirm that FMVSS No. 208 does not require a front air bag for the driver’s seat. 

The second vehicle you describe is an MPV.[2]  In a subsequent conversation with my staff, you indicated that this vehicle has a gross vehicle weight rating (GVWR) of more than 8,500 pounds (lb) (and/or an unloaded vehicle weight greater than 5,500 lb) but not greater than 10,000 lb.  The MPV has a driver and front passenger seat, both of which are centrally located.  The accompanying illustrations also depict two rear seating positions.  You state that neither the driver’s seat nor the front passenger seat will meet the definition of an “outboard designated seating position.”  You ask us to confirm that FMVSS No. 208 does not require a front air bag for either of these seating positions.    

Requirements under FMVSS No. 208 for the front seats in these vehicles

FMVSS No. 208 sets out vehicle-level occupant protection requirements.  These include requirements or compliance options for seat belts, air bags, frontal crash tests, and static air bag tests. 

Passenger Cars

Whether or not the passenger car you describe is required to have a front air bag for the driver’s seat depends on whether that seat is an “outboard designated seating position.”  FMVSS No. 208 requires that each “[front] outboard designated seating position” be equipped with a Type 2 seat belt[3] and an air bag and certified to meet advanced air bag requirements.[4]  For example, passenger cars are required to certify, among other things, that they will meet injury criteria specifications when subject to a rigid barrier belted crash test with a 50th percentile adult male dummy,[5] but this requirement applies only to “each front outboard designated seating position[.]”[6]  We note that the standard is not completely consistent in using the term “front outboard designated seating position” to apply the advanced air bag requirements; the requirements referring to an out-of-position 5th percentile female dummy are specified in terms of the “driver position.”[7]  However, this “driver position” reference is most sensibly understood as applying to the driver’s side front outboard designated seating, consistent with the framework specified in the rest of the standard.[8]  If the front seat is not an “outboard designated seating position” then it is required to have a Type 1 or Type 2 seat belt assembly.[9]

MPVs with a GVWR greater than 8,500 lb (or with an unloaded vehicle weight greater than 5,500 lb) but not greater than 10,000 lb

FMVSS No. 208 (in S4.2.3 and S4.1.2) specifies several different compliance options for front seats in MPVs in this weight class.  These vehicles are not required to have air bags, and may provide protection with only a seat belt.[10] 

Discussion

Based on the information and representations provided in your interpretation request, FMVSS No. 208 does not require front air bags for the front seats in the vehicles you describe.[11]  If the centrally-located driver’s seat in your passenger car is not an outboard designated seating position, FMVSS No. 208 requires a Type 1 or Type 2 seat belt assembly, and not an air bag.  With respect to MPVs in the referenced weight class, FMVSS No. 208 does not require air bags for any front seats.  For example, the compliance option at S4.1.2.3 specifies only a belt and a seat belt warning for both front outboard and center seats.  More specifically, if the centrally-located driver’s and front passenger seats in the MPV are not outboard designated seating positions, then S4.2.3 requires that they be equipped with a Type 1 or Type 2 belt and, depending on the compliance option selected, a seat belt warning system.

In your letter, you indicate that you have “every intention of installing airbags [sic] as soon as possible” in your vehicles.  NHTSA strongly encourages that an air bag be provided for the driver’s designated seating position.  In establishing Standard No. 208's automatic protection requirements and later amending the standard to require air bags, NHTSA anticipated that applying the requirements to the front outboard positions would result in the driver's seating position being covered. The agency did not apply the requirements to the center seating position largely because that seating position is rarely used.  However, that would not be true if that position were also the driver's seating position.  Thus, we support your intention to install air bags in future models. 

This interpretation is limited to the facts and representations stated in your request.  In particular, this response assumes that the centrally-located front seat(s) are not “outboard designated seating position(s)” as defined in § 571.3(b) and that the rear seats depicted in the illustrations of the vehicles would in fact be classified as rear seats (and not front seats) under our regulations.  We also note that this letter is limited to answering your question about FMVSS No. 208.  Other FMVSS might necessitate use of air bag technologies, e.g., FMVSS No. 226, “Ejection mitigation,” which manufacturers typically meet by way of ejection mitigation side curtain air bags.  It would be your responsibility as a vehicle manufacturer to certify that your vehicles meet all applicable FMVSSs, including those not discussed in this letter. 

 If you have any further questions, please contact John Piazza of my staff at (202) 366-2992.

Sincerely,

Jonathan C. Morrison

Chief Counsel

Dated: 12/30/19

Ref: FMVSS No. 209

[1] “Outboard designated seating position means a designated seating position where a longitudinal vertical plane tangent to the outboard side of the seat cushion is less than 12 inches from the innermost point on the inside surface of the vehicle at a height between the design H-point and the shoulder reference point (as shown in fig. 1 of Federal Motor Vehicle Safety Standard No. 210) and longitudinally between the front and rear edges of the seat cushion” (emphasis in original).

[2] An MPV is defined as “a motor vehicle with motive power, except a low-speed vehicle or trailer, designed to carry 10 persons or less which is constructed either on a truck chassis or with special features for occasional off-road operation.”  § 571.3(b).

[3] S4.1.5.1(a)(3).  A Type 1 seat belt is a lap belt, and a Type 2 seat belt is a combination lap/shoulder belt.  FMVSS 209; Seat belt assemblies, S3.

[4] See S14 (“Advanced air bag requirements for passenger cars and for trucks, buses, and multipurpose passenger vehicles with a GVWR of 3,855 kg (8500 pounds) or less and an unloaded vehicle weight of 2,495 kg (5500 pounds) or less, except for walk-in van-type trucks or vehicles designed to be sold exclusively to the U.S. Postal Service[]”) and S4.1.5.4 (“Each passenger car certified to S14 shall, at each front outboard designated seating position, meet the applicable frontal crash protection requirements of S5.1.2(b) by means of an inflatable restraint system that requires no action by vehicle occupants.”).  See also the advanced air bag requirements specified in S14 through S29. 

[5] S14.4 and S14.5.1(b).

[6] S14.5.1(b).

[7] See S25.1-25.4.

[8] Cf. Intermodal Surface Transportation Efficiency Act of 1991, Pub. L. No. 102-240, § 2508(a)(1), 105 Stat. 1914 (1991) (requiring the Department of Transportation to amend FMVSS No. 208 to require air bags at the “front outboard designated seating positions” in passenger cars and trucks, buses, and MPVs with a GVWR of 8,500 lb or less and an unloaded weight of 5,500 lb or less).

[9] S4.1.5.1(a)(2).

[10] See S4.1.2.3 (option of equipping the front outboard seats with Type 2 belts and a belt warning system, and any center front seat with a Type 1 or Type 2 seat belt and a belt warning system).

[11] See also Letter from Philip Recht, Chief Counsel, to Trevor Buttle, McLaren Cars Limited (Oct. 31, 1994) (opining that a driver’s seat located at least 12 inches from the side of the vehicle is not an “outboard designated seating position”).

ID: 571.226--Conversion of vans--M Johnson

Mr. Michael Johnson Black Hills Transfer Inc.

P.O. Box 9472

Rapid City, SD 57709

Dear Mr. Johnson:

This responds to your email forwarded to us by U.S. Senator John Thune’s office, and to your September 4 and September 12, 2020 telephone conversations with Deirdre Fujita of my staff, asking whether a motor vehicle dealer may make certain modifications to your used 2019 passenger vans to convert them to cargo vans. You explain that the work would involve, among other things, removing all passenger seats, seat brackets, and seat belts rearward of the driver’s seat, installing a full partition behind the driver’s seat and right front passenger seat to separate a cargo area, and replacing the side curtain air bag on the driver’s side of the vehicle with a side curtain air bag specially designed for only the driver’s seating position. As discussed below, our answer is the vehicles may be modified as you describe, subject to certain conditions.

By way of background, the National Traffic and Motor Vehicle Safety Act (Safety Act, 49 U.S.C. Chapter 301) authorizes NHTSA to issue Federal motor vehicle safety standards (FMVSSs) for new motor vehicles and items of motor vehicle equipment. Among other things, § 30112 of the Safety Act prohibits any person from selling any new motor vehicle or motor vehicle equipment that does not meet all applicable FMVSSs. This requirement applies until the first purchase of the vehicle or equipment other than for resale (first retail sale). Following such first purchase of the vehicle or equipment, § 30122 of the Safety Act prohibits a manufacturer, distributor, dealer, rental company, or motor vehicle repair business from knowingly making inoperative any part of a device or element of design installed on or in a motor vehicle or motor vehicle equipment in compliance with an applicable FMVSS. It is this latter provision, § 30122, that bears on the questions you ask.

You explain in your email and phone calls that you purchased two used passenger vans with the intent of converting them to carry cargo for your business. Both vehicles are equipped with side curtain air bags of different designs. You describe the driver’s side curtain as extending from the windshield into the cargo space, and that “[t]he passenger side already has separate airbags [sic] for the passenger’s front seat and the cargo space.” You would like to retain functioning side curtain air bags for the driver and right outboard passenger seats, but given the installation of the partition and creation of the new cargo area, you wish to replace the driver’s full length side curtain air bag (which you call the “long” side curtain air bag) with an air bag that protects only the driver’s seat (a “short” side curtain air bag). You would like to remove the curtain air bag from the cargo space on the right front outboard passenger side rearward of the partition, and retain just the original separate “short” side curtain air bag designed for the front right seat. You are in contact with a dealer who can modify the vehicle in this way, but the dealer requests a “letter of authorization” from NHTSA before it will modify the vehicles.

Discussion 

Section 30122 of the Safety Act limits the modification of vehicles by persons listed in § 30122. That section prohibits those persons, including dealers, from knowingly removing, disabling or otherwise “making inoperative” the performance of equipment or elements of design installed on a vehicle in compliance with an FMVSS. Removing safety equipment such as seat belts and a side curtain air bag, and not replacing them, is generally impermissible by dealers under § 30122, as those items were installed in the vehicles in compliance with applicable FMVSSs.1 However, modifications that change a vehicle from one type to another present a unique circumstance regarding § 30122.

The Safety Act does not prohibit persons from changing a used vehicle from one type to another, e.g., from a passenger van to a cargo van.2 In the situation involving modification of a used vehicle, NHTSA views the determinative standards for the make inoperative provision to be those that would have applied to the vehicle had the vehicle been originally manufactured as the vehicle type to which it has been converted.3 This means that your dealer may modify your used vans, provided that the modified vehicles will have working safety systems installed that would have met the applicable FMVSS for vehicles with partitions and no designated seating positions rearward of the partition, if the vehicles were new.

The FMVSSs directly affected by installation of the partition and reconfiguration of the side curtain air bags are FMVSS No. 214, “Side impact protection,” and FMVSS No. 226, “Ejection mitigation.” In a passenger van that might be converted to a cargo van, the manufacturer likely installed side curtain air bags at the driver’s seating position and at the right front outboard seating position to meet FMVSS No. 214’s pole test requirement (S9). It is technically feasible

1 Presumably the seat belts were installed to meet FMVSS No. 208, and the side curtain air bags were installed in compliance with FMVSS No. 214 and/or No. 226.

2 While NHTSA does not have a definition for a “van,” passenger vans are considered “multipurpose passenger vehicles” (MPV) under NHTSA’s definitions (49 CFR § 571.3, Definitions).  An MPV is defined as “a motor vehicle with motive power, except a low-speed vehicle or trailer, designed to carry 10 persons or less which is constructed either on a truck chassis or with special features for occasional off-road operation.” A cargo van (commonly understood as a van with no designated seating positions rearward of the driver’s position) could be considered an MPV, but could be a truck. “Truck” is defined as “a motor vehicle with motive power, except a trailer, designed primarily for the transportation of property or special purpose equipment.” (Id.) Under NHTSA’s self-certification framework, manufacturers certify their vehicles as meeting all FMVSSs applicable to the vehicle type, and, in doing so, classify their vehicles for purposes of determining the applicability of the FMVSSs. NHTSA may take issue with that classification if the agency believes the manufacturer has misclassified the vehicle, and thus failed to certify the compliance of the vehicle with applicable FMVSSs.

3 See, e.g., August 17, 1979 letter to Mike Champagne, https://isearch.nhtsa.gov/aiam/aiam3072.html, April 21, 1993 letter to Jeffrey Kester, https://isearch.nhtsa.gov/files/8439.html (“we have not interpreted Section [30122] as forbidding modifications that result in the inapplicability of one or more of the FMVSS with which a vehicle originally complied”); May 21, 2003 letter to Teresa Stillwell, https://isearch.nhtsa.gov/files/001646drn.html. Please note that the Safety Act was amended in 2015 to include “rental companies” in the entities subject to the “make inoperative” provision.

for the pole test to be met by installing the short side curtain air bag at the driver’s seating position in place of the long air bag, and by retaining just the short side curtain air bag at the right front outboard seating position, which are modifications planned by your dealer. If the short side curtain air bags at the driver’s seating position and at the right front outboard seating position would deploy in a manner meeting the pole test requirement, the modification would not constitute a § 30122 violation as regards FMVSS No. 214.

FMVSS No. 226 has requirements for vehicles with a fixed partition behind which there are no designated seating positions (S5.2.1.2(c)). For such a vehicle, it is technically possible to meet FMVSS No. 226 with just a short side curtain air bag at the driver’s position and a short side curtain air bag at the right front outboard seating positions. Under S5.2.1.2(c), no ejection mitigation side curtain air bag is required rearward of the partition for such a vehicle.

Accordingly, this means--with regard to FMVSS No. 226 S5.2.1.2(c)--it is possible for your dealer to modify the side curtain air bags as you describe without violating § 30122, assuming the short air bags would continue to deploy in a rollover as contemplated by the standard, and in the manner meeting the ejection mitigation requirements for the seats forward of the partition.

We note that it may not necessarily be a simple matter of stripping the van, installing different side curtain air bags, and reinstalling a cut headliner and original side pillar trims. For example, the replacement short curtain air bag would need to fit the structure of the vans being modified and matched to the crash sensing system. The original manufacturer of your vehicles should be able to inform the dealer which additional components and modifications, if any, may be needed to avoid making inoperative the front row side curtain air bags.

Please keep in mind that the dealer also must not knowingly make inoperative devices or elements of design required by other FMVSS provisions not included in the above discussion. Thus, for example, the modification must not make inoperative the side curtain air bag monitoring system required by S4.2.2 of FMVSS No. 226, which informs the driver of the readiness of the side curtain air bag system.

As for removing the rear seats and accompanying belts, removing vehicle seats on a passenger van to convert it to a cargo van is not prohibited by § 30122. While FMVSS No. 2084 requires rear designated seating positions to have seat belts, if the designated seating position were removed, there would be no designated seating position to equip with the seat belt.5 Accordingly, your dealer’s removal of the rear seats and seat belts to convert the passenger van to a cargo van would not, by itself, violate § 30122.

In sum, your dealer may modify your vans as you describe, provided that the short air bags would deploy as specified by FMVSS No. 214 and 226, and that the work does not make inoperative devices or elements of design required by other provisions of the applicable FMVSS, such as the readiness indicator required by S4.2.2 of FMVSS No. 226.

4 FMVSS No. 208, “Occupant crash protection,” 49 CFR § 571.208.

5 See, e.g., December 22, 1995 letter to Fred Prizker, https://isearch.nhtsa.gov/files/11210.html. Removal of rear seat belts as part of converting a passenger van to a cargo van by removing the rear seat does not violate the make inoperative provision.

We trust this letter provides the information you need. Please contact us if you have further questions.

Sincerely,

JONATHAN CHARLES MORRISON

Digitally signed by JONATHAN CHARLES MORRISON

Date: 2020.10.23 19:11:26 -04'00'

Jonathan C. Morrison Chief Counsel

Signed: 10/23/20

Ref: FMVSS 226

ID: 571.205 Plexiglass Barriers (002)

Mr. Mike Collingwood

Illinois Department of Transportation

2300 South Dirksen Parkway, Room 305

Springfield, IL 62764                       

August 11, 2020

Dear Mr. Collingwood:

This responds to your two inquiries to the National Highway Traffic Safety Administration (NHTSA) about the installation of barriers in school buses to minimize the spread of the Coronavirus Disease 2019 (COVID-19). In your June 16, 2020 email, you ask about the installation of “plexiglass barriers” installed to the right of, and behind, the driver’s seating position. In a later email, you ask about the installation of clear plastic “soft shields” that would be installed to the immediate right of and behind the driver, and/or installed throughout the passenger compartment by attachment to the interior roof of the school bus and to the seat backs of the passenger seats. As explained below, NHTSA’s regulations would permit the installation of the barriers, subject to the requirements discussed in this letter.

Please note that our answer below is based on our understanding of the specific information provided in your email. This interpretation letter does not have the force and effect of law and is not meant to bind the public in any way. This letter is intended only to provide clarity to the public regarding existing requirements under the law, and represents the opinion of the agency on the questions addressed in your email at the time of signature.

Background 

NHTSA is authorized by the National Traffic and Motor Vehicle Safety Act (Safety Act, 49 U.S.C. Chapter 301) to issue Federal motor vehicle safety standards (FMVSS) that set performance requirements for new motor vehicles and new items of motor vehicle equipment. The Safety Act requires manufacturers to self-certify that their vehicles and equipment conform to all applicable FMVSS in effect on the date of manufacture. NHTSA also investigates safety- related defects.

Based on your description of the barriers and the photos you provided, the plexiglass material of the barrier and transparent flexible material of the shield would be motor vehicle “glazing” that must comply with FMVSS No. 205, “Glazing materials.” FMVSS No. 205 applies to glazing installed in motor vehicles prior to first purchase and to aftermarket glazing for use in motor vehicles. The standard incorporates by reference an industry standard, the “American National Standards Institute American National Standard for Safety Glazing Materials for Glazing Motor Vehicles and Motor Vehicle Equipment Operating on Land Highways-Safety Standard” (ANSI/SAE Z26.1-1996). FMVSS No. 205 and ANSI/SAE Z26.1-1996 specify performance requirements for various types of glazing, called “Items,” and specify the locations in vehicles in which each item of glazing may be used. As motor vehicle glazing, the transparent material of the barrier or shield must meet the requirements of FMVSS No. 205 and be certified as meeting that standard by the prime glazing manufacturer, and, if applicable, the manufacturer or distributor who cuts the glazing into components for use in motor vehicles or items of motor vehicle equipment. If an entity, in assembling the barrier or shield, cuts the glazing, it must ensure the glazing meets the requirements of FMVSS No. 205, and must certify its compliance pursuant to S6.3 of FMVSS No. 205.1 Anyone who assembles and markets an aftermarket barrier or shield would be a manufacturer of motor vehicle equipment and be responsible for ensuring the product is free from safety-related defects. If the assembler or NHTSA finds the product to contain a safety-related defect, the assembler would be responsible for conducting a recall campaign as required under 49 U.S.C. §§ 30118-30120. 

Discussion 

Plexiglass Barriers. You ask about plexiglass barriers installed in school buses to the right of and just behind the driver. Assuming the barriers are comprised of plexiglass (or similarly rigid transparent material), NHTSA would consider them to be “interior partitions.”2 This classification is important as it, along with the location of the glazing in the vehicle, determines which types of glazing may be used.

Depending upon where the glazing is placed, it may be considered “requisite for driving visibility” and subject to heightened requirements. On buses, the windows deemed requisite for driving visibility are windows to the immediate right or left of the driver and the front windshield.3 (Any portion of glazing that the driver would have to see through to view the windows requisite for driving visibility would also be considered requisite for driving visibility.) You describe the barriers as being located to the right of the driver and immediately behind the driver. Of these locations, only the first would be considered requisite for driving visibility on buses.

Glazing for interior partitions on buses in areas requisite for driving visibility must be of one of the following types of glazing: Items 1, 2, 4, 4A, 10, 11A, 11C, 14, 15A, or 15B. This means the part of the barrier to the right of the driver must be of the items listed above.  Interior partitions in areas not requisite for driving visibility have additional compliance options, and may also be made of one of following types of glazing: Items 3, 5, 11B, 12, 13, 16A, or 16B. This means the part of the partition immediately behind the driver may be any of the above items.

1On the other hand, if the entity only assembles the barrier using pre-cut glazing that has been certified by a glazing manufacturer, it is not required to certify the glazing.

2 See letter to Ms. Lee Ann Sparks, (June 4, 2020) available at https://isearch.nhtsa.gov/files/571-205- Driver%20Shield%20for%20Buses%20and%20Vans_final%20signed%20(002).htm.

3 In a letter to Cris Morgan (January 14, 2009), NHTSA concluded that low-level glazing on doors to the right or left of the driver are considered windows that are requisite for driving visibility. Therefore, glazing through which the driver would view these windows would be considered requisite for driving visibility. https://isearch.nhtsa.gov/files/08-004149--19%20Nov%2008--sa.htm.

Soft Shields. You ask about “soft shields” installed in school buses that would be installed to the right of and behind the driver or installed in the passenger compartment by attachment to the interior roof of the school bus and to the seat backs of the passenger seats. Based on photos of the soft shields, and assuming they are comprised of flexible transparent material, NHTSA would consider them to be “flexible curtains.” Again, this classification is important for FMVSS No. 205, as it, along with the location of the glazing in the vehicle, determines which types of glazing may be used.

The photos you provide show that the shields would be installed to the right of the driver or immediately behind the driver, and/or installed between each row of seats by attachment to the interior roof of the school bus and to the seat backs of the passenger seats. Of these locations, only the location to the right of the driver would be considered requisite for driving visibility.

Glazing for flexible curtains on buses in areas requisite for driving visibility must be of one of the following types of glazing: Items 1, 2, 4, 4A, 6, 10, 11A, 11C, 14, 15A, or 15B. This means the soft shield to the right of the driver must be of the items listed above. However, although these Items of glazing are permitted for use as flexible curtains, the only appropriate Item for the pliable plastic shown in the photos may be Item 6. Some of the requirements for certain Items may necessitate a level of rigidity that a soft plastic cannot provide. Some Items of glazing, such as Item 6, have requirements that were designed specifically for flexible plastics.

Glazing for flexible curtains in buses in areas not requisite for driving visibility must be one of the following types of glazing: Items 1, 2, 3, 4, 4A, 5, 6, 7, 10, 11A, 11B, 11C, 12, 13, 14, 15A, 15B, 16A, or 16B. Accordingly, the part of the flexible curtain for any location behind the driver and in the passenger compartment must be of these items. Of these permissible Items of glazing, Items 6, 7, and 13 may be the only appropriate ones for the soft, pliable plastic shown in the photos you provide. Soft, pliable glazing may not be able to meet the requirements for certain Items of glazing because they do not provide a level of rigidity that is necessary for meeting some of the requirements. However, Items 6, 7, and 13, have requirements that were designed specifically for flexible plastics.

Other requirements. There may be additional requirements applying to the installation of the partition or curtain (“glazing”) depending on the entity installing it. If the glazing is installed on a new bus prior to first vehicle sale for purposes other than resale, the installer must ensure that, with the glazing installed, the vehicle complies with FMVSS No. 205 and all other applicable FMVSS, and must certify the vehicle as complying with all FMVSS affected by the installation. If the glazing is installed as aftermarket equipment by a manufacturer, distributor, dealer, rental company, or motor vehicle repair business, that entity would be subject to 49 U.S.C. 30122, which prohibits the entity from knowingly making inoperative any device or element of design installed on or in a motor vehicle or item of motor vehicle equipment in compliance with an applicable FMVSS.

In both cases, the entity installing the glazing must ensure that installation of the partition does not: (1) take the vehicle out of compliance with or make inoperative systems installed pursuant to FMVSS No. 222, “School bus passenger seating and crash protection;” (2) impact the vehicle’s compliance with or make inoperative systems installed pursuant to FMVSS No. 302, “Flammability of interior materials;” (3) prevent the driver and passengers from readily accessing emergency exits installed in compliance with or make inoperative systems installed pursuant to FMVSS No. 217, “Bus emergency exits and window retention and release;” (4) obstruct the driver’s view of the mirrors and/or rearview image required under FMVSS No. 111, “Rear visibility;” or (5) impede the driver’s ability to see through the windows needed for driving visibility. Visibility is particularly important for school buses, as not only are school buses engaged in the transportation of children, they also make frequent stops. Installers should ensure that installation of a partition or curtain, particularly one situated in an area requisite for driving visibility, does not create glare or otherwise reduce the driver’s ability to see embarking and disembarking students and other road users.

Regarding how the installation of the glazing affects compliance with FMVSS No. 222’s head protection requirements, S5.3.1 of FMVSS No. 222 establishes head protection requirements for “contactable surfaces” within the head protection zone defined by S5.3.1.1. The head protection zone is determined based on seating references points. This means that each seat in a school bus has its own head impact protection zone. As an example, a partition that is installed directly behind the driver is likely to fall within the head protection zone for the seat directly behind the driver. Partitions installed to the right of the driver may also partially fall within the head protection zones for the seat directly behind the driver.

If the partition is installed prior to first purchase, the installer must ensure that the vehicle will meet FMVSS No. 222 with the glazing installed. If the head impact protection requirements cannot be met for that first row of seats with the partition installed, the installer might have to remove the first row and move the FMVSS No. 222 restraining barrier rearward such that the bus provides proper compartmentalization for what would be the new (reconfigured) first row. This modification would ensure that the partition is no longer within the head protection zone of any of the school bus seats.

If the partition is installed after first purchase by an entity subject to the make inoperative provision in 49 U.S.C. 30122, the installer may not knowingly make inoperative any part of a device or element of design installed on or in the school bus pursuant to FMVSS No. 222. School buses are required to have passenger seating systems designed to afford impact protection to occupants. Installation of the partition may affect this element of design (compartmentalization) for the front row of seats by impairing the seat’s head impact protection. To avoid this result, the installer may need to remove the first row of seats and move the FMVSS No. 222 restraining barrier rearward such that the bus provides proper compartmentalization for what would be the new (reconfigured) first row.

Entities modifying their own school buses are not subject to Federal restrictions on “making inoperative” the safety systems on their vehicles. However, NHTSA recommends that owners not degrade the safety systems provided on their vehicles. Thus, we recommend that schools take measures to ensure that students will not occupy seats that have compromised head protection zones. For example, if a school installs a partition that will be in the head impact zone, the school can mitigate risk by not allowing students to sit in those first-row seats.

It appears from the photos you sent that the flexible curtain is a “soft shield” made from pliable plastic. Even though the curtains would likely fall within the head protection zones when installed forward of each passenger seat, it does not appear to have an adverse effect on school bus compliance with FMVSS No. 222’s head protection requirements.

In addition to the above, please note that the installation of the barrier may be subject to State laws or regulations. School bus operators should contact their local highway safety office for information governing how school children should be transported.

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

Sincerely,

JONATHAN CHARLES MORRISON

Digitally signed by JONATHAN CHARLES MORRISON

Date: 2020.08.11 15:21:29

-04'00'

Jonathan C. Morrison

Chief Counsel

Dated: 8/11/20

Ref: FMVSS No.205

ID: 571.125 -- Warning Devices - Anderson

Ms. Vivian P. Anderson

10575 Bell Fountain Road

Dawson, IL 62520

Dear Ms. Anderson:

Thank you for your letter dated March 9, 2020, following up our February 26, 2020, Compliance Assistance Program (CAP) response about a type of warning device you are interested in producing.

You ask whether there are any Federal regulations regarding the size or reflective coloring for distress signals that may be used in the case of a vehicle emergency. In our original CAP response, we noted that the National Highway Traffic Safety Administration (NHTSA) has issued Federal Motor Vehicle Safety Standard (FMVSS) No. 125, “Warning devices,” which covers warning devices “that are designed to be carried in buses and trucks that have a gross vehicle weight rating (GVWR) greater than 10,000 pounds” (49 CFR §571.125). We noted that distress signals like the one described in your CAP question may be considered warning devices for the purposes of FMVSS No.125 if they are intended to be carried in buses or trucks with a GVWR greater than 10,000 pounds.

In your follow-up letter, you provide greater detail on your product, which you call the Distress Bandana. You describe your product as a reflective flag that can be hung from a disabled vehicle’s window to signal distress. You further state that your product is intended for use only on vehicles with a GVWR less than 10,000 pounds, and on motorcycles. 

Discussion 

By way of background information, the National Traffic and Motor Vehicle Safety Act (Safety Act) authorizes NHTSA to issue safety standards for new motor vehicles and new items of motor vehicle equipment. NHTSA does not approve or certify vehicles or items of equipment. Instead, the Safety Act establishes a self-certification process under which each manufacturer is responsible for certifying that its products meet all applicable FMVSS. The agency tests vehicles and items of equipment for compliance with the standards. NHTSA also investigates safety- related defects.

2

At this time, there are no FMVSS pertaining to your product.1 FMVSS No. 125 applies to devices designed to be carried in buses and trucks with a GVWR greater than 10,000 pounds. As long as the Distress Bandana is designed for use only in vehicles with a GVWR of 10,000 pounds or less, FMVSS No. 125 would not apply to your product.2 In determining whether a warning device is designed for use in a bus or truck with a GVWR greater than 10,000 pounds, we may look to product advertising, labels, and instructions (e.g., specifying intended use), as well as how the product is actually used by motorists.

Please be aware that even if your product is not covered by FMVSS No. 125, products like the Distress Bandana are items of “motor vehicle equipment” and subject to Safety Act requirements. Manufacturers of motor vehicles and motor vehicle equipment must ensure that their products are free of safety-related defects. If a manufacturer or NHTSA determines that the product contains a safety-related defect, the manufacturer would be responsible for notifying purchasers of the product and remedying the problem free of charge. More information can be found in the NHTSA New Manufacturers Handbook, which can be downloaded on NHTSA’s website https://vpic.nhtsa.dot.gov/.

Please note that our answer above is based on our understanding of the specific information you provided. This interpretation letter does not have the force and effect of law and is not meant to bind the public in any way. This letter is intended only to provide clarity to the public regarding existing requirements under the law, and represents the opinion of the agency on the questions addressed in your letter at the time of signature.

I hope this information is helpful. If you have any further questions, please feel free to contact Paul Connet of my office at (202) 366-5547.

Sincerely yours,

JONATHAN CHARLES MORRISON

Digitally signed by JONATHAN CHARLES MORRISON

Date: 2020.10.02 09:15:13

-04'00'

Jonathan C. Morrison Chief Counsel

Date: 10/2/20

Ref: FMVSS No. 125

1 The Federal Motor Carrier Safety Administration (FMCSA) has requirements that commercial vehicles be equipped with warning devices and requirements related to their use. For information about FMCSA requirements, please contact www.fmcsa.dot.gov.

2 FMVSS No. 125 was issued on August 2, 1974. 39 FR 28636. The standard then applied to “devices, without self- contained energy sources, that are designed to be carried in motor vehicles and used to warn approaching traffic of the presence of a stopped vehicle, except for devices designed to be permanently affixed to the vehicle.” On September 29, 1994, NHTSA further amended the standard to be applicable only to those devices designed to be carried in buses or trucks that have a GVWR greater than 10,000 pounds.