ID: 21568.drn

Mr. James T. Castle
Fleet Manager, Transportation Services
Clemson University
Klugh Avenue, Box 345382
Clemson, SC 29634-5382

Dear Mr. Castle:

This responds to your April 10, 2000, request for an interpretation of the National Highway Traffic Safety Administration's (NHTSA's) prohibition on dealers selling new 15-person vans for transporting children to or from school or related events. You wish to know whether the prohibition affects children in custodial care facilities such as summer camps. Our answer is provided below.

In a telephone conversation with Dorothy Nakama of my staff, you explained that by "summer camp" you mean that in the summer, Clemson University hosts children in the twelfth grade and below who want to improve their athletic skills. The children live at Clemson dormitories. Because of distances involved, the children may have to be transported between various sites (e.g., dormitory and athletic field) on the Clemson campus.

Some background information may be helpful. NHTSA is authorized to issue and enforce Federal motor vehicle safety standards (FMVSSs) applicable to new motor vehicles. Our statute at 49 U.S.C. 30112 requires any person selling or leasing a new vehicle to sell or lease a vehicle that meets all applicable standards. Accordingly, persons selling or leasing a new "school bus" must sell or lease a vehicle that meets the safety standards applicable to school buses. Our statute defines a "schoolbus" as any vehicle that is designed for carrying a driver and more than 10 passengers and which, NHTSA decides, is likely to be "used significantly" to transport "preprimary, primary, and secondary" students to or from school or related events. 49 U.S.C. 30125. By regulation, the capacity threshold for school buses corresponds to that of buses -- vehicles designed for carrying more than ten (10) persons. For example, a 15-person van that is likely to be used significantly to transport students is a "school bus." Persons selling or leasing new 15-person vans for such use must sell or lease a van that meets our school bus standards.

In the past, when reviewing a dealer's sale of a new vehicle, NHTSA looked at the nature of the institution purchasing the vehicle. In recent interpretations (see the attached July 17, 1998, letter to Mr. Greg Balmer of the YMCA), we noted that it was more appropriate to consider the extent to which the buses are used to carry children to or from school or related events. In the Balmer letter, we stressed that, even if a bus were sold to a facility that provides custodial care (i.e., to a facility that is not a "school"), if that facility were purchasing the new bus to use significantly to transport students to or from a school or events related to a school, a dealer knowing of this purpose would be required to sell a school bus.

Turning to your letter, you ask about vehicles that would be used to transport children in "summer camps." Based on the facts provided about Clemson University's "summer camp," we would not consider Clemson's "summer camp" as a "school" because apparently, no education is to be provided to the children. Since there would be no significant use of the vehicles to transport children to or from school or related events, a dealer knowing of this purpose that wishes to sell you a new bus (e.g., a 15-person van) would not have to sell you only a bus that meets our school bus standards.

Because our laws apply only to the manufacture and sale of new motor vehicles, we do not prohibit institutions such as your "summer camp" from using large vans to transport school children, even when the vehicles do not meet Federal school bus safety standards. However, each State has the authority to set its own standards regarding the use of motor vehicles, including school buses. For this reason, South Carolina law should be consulted to see if there are regulations about how children must be transported.

You asked for clarification of what "significant" means. There is no definitive answer to this question, but I have provided a basic guideline in an interpretation letter dated May 20, 1999 to Mr. Dennis Seavey of Plus Time New Hampshire (copy enclosed). The letter to Mr. Seavey explains that NHTSA considers "transportation provided to or from school on any two days during a week to be regular use and therefore 'significant.'"

In conclusion, we wish to emphasize that school buses are one of the safest forms of transportation in this country, and that we therefore strongly recommend that all buses that are used to transport school children be certified as meeting NHTSA's school bus safety standards. In addition, using 15-person vans that do not meet NHTSA's school bus standards to transport students could result in liability in the event of a crash.

I am enclosing NHTSA's publication: "School Bus Safety: Safe Passage for America's Children." This brochure explains the safety enhancements of a school bus that makes school buses safer than "conventional vans." There are small school buses available that seat 15 children. While school buses are more expensive than large vans, we believe that the cost difference is not so large that it should prevent facilities from acquiring school buses. The cost range for 15-person school buses is approximately $30-32,000, compared to $25-28,000 for 15-person vans. The longer service life for school buses will offset a part of this difference.

Our belief that vehicles providing the safety of school buses should be used whenever transporting children in buses is shared by the National Transportation Safety Board (NTSB). At a June 8, 1999, public meeting, the NTSB issued the attached abstract of a special investigative report on nonconforming buses. The NTSB issued the report after investigating four crashes in 1998 and 1999 in which 9 people were killed and 36 injured when riding in "nonconforming buses." NTSB defines "nonconforming bus" as a "bus that does not meet the FMVSSs specific to school buses." Most of the victims, including eight of the fatalities, were children.

In the abstract of its report, the NTSB issued several Safety Recommendations, including the following that was directed to child care providers such as the National Association of Child Care Professionals, the National Child Care Association, and Young Mens' and Young Women's Christian Associations:

Inform your members about the circumstances of the accidents discussed in this special investigation report and urge that they use school buses or buses having equivalent occupant protection to school buses to transport children.

I am also enclosing NHTSA's February 1999 "Guideline for the Safe Transportation of Pre-school Age Children in School Buses." This guideline establishes NHTSA's recommendations for how pre-school age children should be transported in school buses.

I hope this information is helpful. If you have any further questions about NHTSA's programs, please feel free to contact Dorothy Nakama of my staff at this address or at (202) 366-2992.

Sincerely,
Frank Seales, Jr.
Chief Counsel
Enclosures
ref:VSA#571.3
d.5/26/00

ID: 21572A.ztv

Ms. Kathleen H. Wolf
Consultant to Piaggio & C. S.p.A.
1275 N. Indian Hill Blvd.
Claremont, CA 91711

Dear Ms Wolf:

We have received the petition for temporary exemption from Federal Motor Vehicle Safety Standard No. 123 for the Vespa ET4 (125 and 150cc) motor scooter that you have submitted on behalf of its manufacturer, Piaggio & C. S.p.A. of Pontedera, Italy.

Ordinarily, petitions are filed by manufacturers and not their agents. However, we understand that our laws and language may not be familiar to companies located in countries where English is not the primary tongue, and we are willing to accommodate them when it is feasible. The petition you submitted must be accompanied by a statement signed by an official of Piaggio authorizing you to file the petition and attesting that the signer has read the petition and affirms that the information and arguments contained in it are true and accurate. If you will obtain a statement containing these elements and file it with us, we shall be pleased to consider the matter further.

The petition meets our procedural requirements, and we require no further information. We shall begin to prepare a notice for publication in the Federal Register when we have received the statement, and you may expect a decision three to four months after that.

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

Sincerely,
Frank Seales, Jr.
Chief Counsel
ref:555
d.5/17/00

ID: 21575.ztv

Mr. Randy Burns
Rt. 2, Box 267
Linden, TX 75563

Dear Mr. Burns:

We are replying to your e-mail of April 25, 2000, to Taylor Vinson of this Office. You relate that you have bought a set of "clear tail lamps" for use on your truck, which "state that they are dot approved." The units "have the red reflector." You are "using red bulbs in the lamps to make the lights red." You ask whether the lenses are legal.

In our view, the manufacture and/or sale of clear lenses intended for use on stop lamps or taillamps violates Federal law because they are not identical to the original lenses they are intended to replace, and would not provide a proper lamp color. We further advise that, under certain circumstances, installation of clear lenses on the rear of a motor vehicle could also violate Federal law. And as we have advised before, whether it is legal to drive a vehicle with clear lenses installed is a question to be answered under the laws in effect where the vehicle is driven. We have enclosed materials indicating that lamps with clear lenses and red bulbs are not legal in Texas.

The Federal requirements for motor vehicle lighting equipment are established by Federal Motor Vehicle Safety Standard No. 108, Lamps, Reflective Devices and Associated Equipment, which applies to lighting equipment on new vehicles, and replacement equipment for that original lighting equipment. Paragraph S5.8, Replacement Equipment, of Standard No. 108 requires lighting equipment manufactured to replace original lighting equipment to be designed to conform to Standard No. 108.

Under Table I and Table III of Standard No. 108 and appropriate SAE Standards incorporated by reference, the color of the light from taillamps and stop lamps must be red (If a manufacturer chooses red rather than amber for the rear turn signal lamp, the color from that lamp must be red as well. Rear clearance and identification lamps, and rear side marker lamps must also be red). The color red is defined by SAE Standard J578c, Color Specifications for Electric Signaling Devices, February 1977, which S5.1.5 of Standard No. 108 incorporates by reference. Although Standard No. 108 does not expressly state that the lens of a rear signal lamp must be red and the bulb white for the light to achieve the color red, we are unaware of any original equipment lamp required to emit the color red that consists of a clear lens and a red bulb and that is certified to comply with Standard No. 108. This is not simply a design choice; we know of no red bulb in production that conforms to Standard No. 108's color specification. The combination of a clear bulb and a red lens, therefore, is the only way to design a lamp that conforms to Standard No. 108's requirement that its light be red. This means that the manufacture of clear lenses or lamps intended to replace lenses or lamps on lamps whose original color was red is a violation of S5.8 of Standard No. 108, and the manufacture and sale of clear lenses or lamps for these purposes is a violation of 49 U.S.C. 30112(a). This means that the use of the DOT symbol on the lamp's lens or its container will be regarded as a violation of the certification provisions of 49 U.S.C. 30115. We shall maintain this position until we determine that a bulb conforming to the color red is in production, and specifically intended for use in lamps that will be certified as complying with Standard No. 108.

We contrast this with clear replacement lenses and lamps for turn signal and parking lamps (and front side marker lamps, as well as front clearance and identification lamps on wider vehicles). The light from these lamps must be amber (also when amber is chosen over red for the rear turn signals). The amber light from these lamps furnished as original equipment is produced by either a white bulb and amber lens, or by an amber bulb and a white lens. The latter is permissible because amber bulbs meeting J578's color specification for amber are available. Lamps incorporating white lenses and amber bulbs are being certified as conforming to Standard No. 108. Thus, a clear lens for these specific lamps is permissible as original equipment, provided that the lamp with an amber bulb produces light meeting J578's amber color specification. It follows that replacement lenses or lamps for original equipment lamps with amber bulbs may also be clear, and that it is not a violation of Federal law to manufacture and sell them, provided that they comply in every way with Standard No 108.

We also note that, if any replacement lens or the lens of a replacement headlamp is plastic, S5.1.2 requires it to conform to the specifications of SAE Recommended Practice J576, Plastic Materials for use in Optical Parts, Such as Lenses and Reflectors, of Motor Vehicle Lighting Equipment, JUL91. Since conformance is determined after a three-year outdoor exposure test, we have substantial doubts that any aftermarket clear plastic lens or lamp intended for replacement use on lamps required to produce red or amber light is manufactured from materials that have been tested in accordance with SAE J576 JUL91, as required for compliance with Standard No. 108.

You report that the clear lenses you bought incorporate a red reflector. One of our previous objections to clear replacement taillamp lenses was their lack of a red reflex reflector, present in many original equipment red taillamp lenses and which the vehicle manufacturer may have used to fulfill the requirement of Standard No. 108 that vehicles have red reflex reflectors on the rear, and if included in the original lamp, a red reflector on the side that fulfills the requirement for a red side reflex reflector.

You use the term "dot approved," but we have no authority to "approve" or "disapprove" vehicle lighting equipment, and such language is improper. We believe you must mean that the lenses are marked with a DOT symbol, or that the package in which they were sold stated "DOT approved." The use of the DOT symbol is reserved for representing the manufacturer's own certification that the lens or lamp complies with all applicable Federal motor vehicle safety standards, and not that we have approved the product. As noted above, we doubt whether manufacturers of these lenses have conducted the outdoor exposure test to which they may be certifying compliance by use of the DOT symbol. It is possible, also, that other tests for determining compliance have not been done as well.

At the beginning of my letter, I remarked that the installation of clear stop lamp and taillamp lenses could be a violation of Federal law under certain circumstances. Under 49 U.S.C. 30122, manufacturers, dealers, distributors, and motor vehicle repair businesses are forbidden from making inoperative any equipment installed in compliance with a Federal motor vehicle safety standard. If one of these persons replaces the original red lens by a white lens, we will consider that a violation of 49 U.S.C. 30122 has occurred, even if that person installs a red bulb.

However, this prohibition does not apply to an individual vehicle owner.

We enclose material that was published on June 8, 2000, on its internet website by the Texas Department of Public Safety which states that "clear tail lamp lenses utilizing red bulbs" are "in violation of Texas law."

If you have any questions, you may again contact Taylor Vinson by e-mail.

Sincerely,
Frank Seales, Jr.
Chief Counsel
Enclosure
ref:108
d.6/20/00

ID: 21594.drn

The Honorable John E. Baldacci
Member, United States House
of Representatives
445 Main Street
Presque Isle, ME 04769

Dear Congressman Baldacci:

Thank you for your letter to the National Highway Traffic Safety Administration (NHTSA), on behalf of your constituent, Mr. David W. Keaton of Frenchville. Mr. Keaton, Director of the St. John Valley Technology Center, needs transportation for high school students who are participating in work-study programs at locations off the school campus. The students are transported by school bus from their high schools to the Center. Mr. Keaton is concerned about being able to provide transportation for students to go from the Center to various work sites. Because Maine's school transportation funds are limited, Mr. Keaton seeks to provide transportation by vans carrying 11 or more persons (including the driver) rather than by school bus. Mr. Keaton therefore seeks your assistance in:

1. Allowing public school systems to operate any van without bus markings.
2. Encouraging, through financial assistance, states to enable local educational units to use vans when transporting small numbers of students.
3. Simplifying the school student transportation regulations to allow the transportation of school students in vans during the day.

At the outset, let me note that there is no federal regulation or statute that regulates how children must be transported. Requirements regulating how persons must be transported are determined by state law. However, NHTSA regulates which new buses dealers may sell or lease if the bus is used to regularly transport school children to or from school or school-related activities.

Some background information may be helpful. NHTSA is authorized to issue and enforce Federal motor vehicle safety standards (FMVSS) applicable to new motor vehicles. Our statute at 49 U.S.C. 30112 requires any person selling or leasing a new vehicle to sell or lease a vehicle that meets all applicable standards. Accordingly, persons selling or leasing a new "school bus" must sell or lease a vehicle that meets the safety standards applicable to school buses. Our statute defines a "schoolbus" as any vehicle that is designed for carrying a driver and more than 10 passengers and which, NHTSA decides, is likely to be "used significantly" to transport "preprimary, primary, and secondary" students to or from school or related events. 49 U.S.C. 30125. By regulation, the capacity threshold for school buses corresponds to that of buses -- vehicles designed for carrying more than ten (10) persons. For example, a 15-person van that is likely to be used significantly to transport students is a "school bus." Persons selling or leasing new 15-person vans for such use must sell or lease a van that meets our school bus standards.

It is my understanding that the high school students under Mr. Keaton's charge receive credits towards high school diplomas for participating in the work projects. Under these circumstances, we would consider the real-life work that students perform to be "school," and the transportation provided to the work site as school-related transportation. Therefore, when the students are being transported to the work sites in buses, we would recommend that they be provided school bus transportation.

Federal law also requires that any dealer that sells a new bus to the St. John Valley Technology Center that will significantly be used to take high school students to work sites, must sell a bus that meets NHTSA's school bus standards. Federal law supersedes any contrary state law that presumes to permit dealers to sell new non-school buses that will significantly be used to transport students to or from school or school-related activities. (See 49 U.S.C. 30103(b), Preemption.)

Because our laws apply only to the manufacture and sale of new motor vehicles, we do not prohibit schools from using large vans to transport school children, even when the vehicles do not meet Federal school bus safety standards. However, each State has the authority to set its own standards regarding the use of motor vehicles, including school buses. For this reason, if Mr. Keaton wishes to change regulations or procedures for the use of Maine school vehicles, he must look to Maine state law. One person Mr. Keaton should consult is Maine's State Director of Pupil Transportation, Mr. Harvey Boatman, who can be reached at (207) 287-5321.

Mr. Keaton's first point is that public school systems should be permitted to operate any van without bus markings. Bus marking requirements are addressed by state law. Mr. Keaton's second point (encouraging, through financial assistance, states to enable local educational units to use vans when transporting small numbers of students) and third point (simplifying the school student transportation regulations to allow the transportation of school students in vans during the day) also ask for changes in state vehicle use requirements, and must therefore be reviewed by Maine state officials. However, we wish to emphasize that school buses are one of the safest forms of transportation in this country, and that we therefore strongly recommend that all buses that are used to transport school children be certified as meeting NHTSA's school bus safety standards. In addition, using 15-person vans that do not meet NHTSA's school bus standards to transport students could result in liability in the event of a crash.

I hope this information is helpful. If you have any further questions, please contact Mr. John Womack, Senior Assistant Chief Counsel, at (202) 366-9511.

Sincerely,
Frank Seales, Jr.
Chief Counsel
ref:571.3#VSA
d.6/5/00

ID: 21605.ztv

Mr. Gary L. King
Supervisor of Regulations & Standards
R&D Dept.
North American Lighting, Inc.
26750 Haggerty Road
Farmington Hills, MI 48331

Dear Mr. King:

This is in reply to your letter of April 24, 2000, asking for a clarification of our views on photometric test requirements for multi-compartment rear combination lamps.

You ask whether it is correct to say that a rear combination lamp system (stop lamp, turn signal lamp, taillamp) which consists of lamps on both the rear deck lid and fender which have the appearance of a single lamp with multiple compartments may be considered two lamps because they are not physically connected. If this is the correct interpretation, you then ask for confirmation that the fender-mounted lamp is the lamp that must meet all photometric requirements applicable to stop lamps, taillamps, and rear turn signal lamps.

We confirm your interpretation as it pertains to the rear combination lamp system you describe. Even though a lamp system design may have the appearance of a single lamp with multiple compartments, the system cannot be considered a single lamp when it is mounted both on the deck lid and adjacent fender. It is impossible for the two portions to share a common housing or lens because the housing and lens must be separated in order for the deck lid to open. Thus, the system you describe consists of two lamps. As we have indicated in previous interpretations, we regard the combination lamp that is mounted on the body as the one that must be designed to comply with Standard No. 108. This is because a body-mounted lamp will be visible at all times, whereas one on the deck lid will not be in its design orientation should the deck lid be ajar when the vehicle is in operation, such as may occur when the driver is carrying a load.

You have also referred to the requirement in S5.3.1 of Standard No. 108 that lighting equipment be mounted on a rigid part of the vehicle, and asked whether the deck lid can be considered a "rigid part." Yes, the deck lid is a rigid part. This specification was adopted primarily to forestall installation of rear reflex reflectors on mud flaps. However, consistent with the discussion in the prior paragraph, in terms of your design, we consider the second lamp to be supplemental lighting equipment because all items required by Standard No. 108 must be mounted on the body. This supplemental lamp may be mounted on the deck lid because the complying lamp will remain in its design orientation regardless of the position of the deck lid.

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

Sincerely,
Frank Seales, Jr.
Chief Counsel
ref:108
d..7/12/00

ID: 21610michelin

Mr. Larry D. Weiman
Magenheim Bateman & Helfand
5600 Houston Center
1221 McKinney Street
Houston, TX 77010

Dear Mr. Weiman:

This responds to your May 2, 2000, letter asking for assistance in locating information pertaining to the marketing, testing, application and certification of a particular type of Michelin tire: Michelin XM + S 244 Reinforced Radial X, size 205R16 104T.

By way of background information, the National Highway Traffic Safety Administration (NHTSA) has the statutory authority to issue Federal motor vehicle safety standards (FMVSSs) applicable to new motor vehicles and new items of motor vehicle equipment. Pursuant to this authority, we issued a number of standards for tires. All new tires sold in the United States for use on passenger cars must be certified by the manufacturer as complying with FMVSS 109, New pneumatic tires, found at 49 CFR 571.109, while all new tires sold for use on motor vehicles other than passenger cars must be certified as complying with FMVSS 119, New pneumatic tires for vehicles other than passenger cars (49 CFR 571.119). All retreaded passenger car tires must be certified as complying with FMVSS 117, Retreaded pneumatic tires (49 CFR 571.117). We also have authority to investigate safety-related defects in motor vehicles and items of motor vehicle equipment, including tires.

The Uniform Tire Quality Grading Standards (UTQGS) are set forth in 49 CFR 575.104. Those standards do not require certification in the same manner as the FMVSSs. The UTQGS require that manufacturers mold onto or into the sidewalls of their tires the comparative rating of those tires for treadwear, traction, and temperature resistance for the use and benefit of consumers.

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

Our statute establishes a self-certification process applying to the manufacture of vehicles and equipment to our safety standards. This means that NHTSA does not perform any pre-sale testing, approval, or certification of tires, whether of foreign or domestic manufacture, before their introduction into the U.S. retail market. Instead, each tire manufacturer must certify that its tires comply with applicable FMVSSs. We do not require that a manufacturer base its certification on any specific test or on any number of specified tests. However, manufacturers must exercise due care in certifying its tires. It is the responsibility of each tire manufacturer to determine what tests results, computer simulations, engineering analyses, or other information it needs to enable it to certify, with due care, that its tires comply with applicable Federal tire safety standards.

Once a manufacturer has determined that its tires meet all applicable Federal safety standards, it certifies such compliance by molding the letters "DOT" onto at least one sidewall of each certified tire. If manufacturers conduct any tests, they are not required by Federal law or regulation to release their test results to the public.

NHTSA tests certified tires to determine whether the tires do, in fact, comply with applicable standards. For such enforcement checks, NHTSA purchases tires "off the shelf" from retail tire dealers or distributors and tests those tires according to the procedures specified in the standards. Those test reports are made public. If the tire passes the tests, no further action is taken. If it fails the tests and is determined not to comply with any applicable standard or standards, the manufacturer is responsible for recalling the tires and remedying the noncompliance without charge to the consumer.

As discussed in correspondence to you dated June 8, 2000, from NHTSA's Office of Vehicle Safety Compliance, no compliance or defect reports have been located for the tire type and size you specified.

I hope this information is helpful. If you have any questions or need additional information, feel free to contact Nancy Bell of my staff at (202) 366-2992.

Sincerely,
Frank Seales, Jr.
Chief Counsel
ref:109
d.7/12/00

ID: 21652.ztv

Mr. Michael L. Wagner
563 Circle Drive
Fairmount, IN 46928-1963

Dear Mr. Wagner:

This is in reply to your fax of May 16, 2000, to Taylor Vinson of this Office. You had talked with him on the 15^th regarding modulating motorcycle headlamps, reporting that you are "frequently being pulled over by Indiana State Police telling me it is illegal." You also informed him that you had bought your modulating unit in the aftermarket, and that it was not original equipment on your motorcycle.

I am enclosing three of our interpretive letters setting forth legal opinions of this Office on modulating headlamps. They are addressed to Tracey Wagner of the American Motorcyclist Association (February 1, 1990), Walter Jakobowski of Signal Dynamics Corporation (September 11, 1997), and Henry Winokur (January 21, 1999).

In brief, S.7.9.4, Motorcycle headlamp modulation system, of Federal Motor Vehicle Safety Standard No. 108, Lamps, Reflective Devices, and Associated Equipment, permits, but does not require, the installation of a modulating headlamp system as original lighting equipment on motorcycles, provided that the system meets the performance requirements of S7.9.4. Under S5.8, replacement lighting equipment (which includes a modulator sold in the aftermarket) must be designed to conform to the same requirements as original equipment, and to be certified by its manufacturer as complying with these requirements. Federal law (49 U.S.C. 30103(b)) specifies that, when a Federal motor vehicle safety standard is in effect, a state may not have a different standard covering the same aspect of performance as the Federal standard. This means that any state law covering modulating headlamp systems on motorcycles cannot prohibit such systems or prescribe different performance requirements than those that appear in Standard No. 108.

Many states reserve the use of flashing lights for emergency vehicles. S4 of Standard No. 108 defines the word "flash" in part as a continuing "cycle of activation and deactivation." The cycle required for modulating headlamps, on the other hand, involves going from a higher intensity to a lower intensity, and the lamp is never deactivated. Thus, a headlamp modulating in accordance with S7.9.4 does not "flash" within the meaning of the Federal lighting laws. If the modulating headlamp system on your motorcycle meets Federal requirements, it should be permitted for use in any state under the preemptive language of Section 30103(b).

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

Sincerely,
Frank Seales, Jr.
Chief Counsel
Enclosures
ref:108
d.6/20/00

ID: 21668.jeg

Romulo R. Frederick, Esq.
Attorney and Counsellor at Law
One River Plaza
4 West Las Olas Boulevard
Suite 700
Fort Lauderdale, FL 33301





Dear Mr. Frederick:





This responds to your letter asking about Federal requirements for air bags. You are representing an individual who was seriously injured in a crash where the air bag in his 1995 passenger car failed to deploy. You stated that the automaker is denying liability "based on its Technical Analysis Group's review and conclusion 'the direct frontal collision forces were not within the threshold for deployment', and thus SRS deployment not warranted; even though the impact was well within 30 degrees of direct center of the vehicle." You asked whether there are any regulations governing air bag deployment and the conditions for deployment. Your question is addressed below.

By way of background information, the National Highway Traffic Safety Administration (NHTSA) issues Federal motor vehicle safety standards covering new motor vehicles and new motor vehicle equipment. One of the standards we issued, Standard No. 208, Occupant Crash Protection (49 CFR 571.208) required 1995 passenger cars to provide automatic crash protection. Vehicles equipped with automatic crash protection protect their occupants by means that require no action by vehicle occupants. The only two systems used to meet this requirement were air bags and automatic seat belts. An amendment to Standard No. 208 made air bags mandatory in all passenger cars and light trucks in the late 1990's.

Among other things, Standard No. 208 specifies that vehicles meet certain performance requirements in crash tests. These tests are conducted with instrumented test dummies placed in the front outboard seating positions of the vehicle. During the tests, the forces measured on the dummies may not exceed specified limits. However, the standard does not specify any crash severity threshold where the air bag must, or must not, deploy.

You also expressed interest in a list of vehicles that were recalled for defective air bags. NHTSA's Office of Defects Investigation has previously provided that list.

I hope this information is helpful. If you have any further questions, please feel free to call Edward Glancy of my staff at 202-366-2992.





Sincerely,

Frank Seales, Jr.
Chief Counsel

ref:208
d.8/4/00

ID: 2169y

Mr. William E. Alkire
CEO, Brakelight Enhancer, Inc.
1010 Rancheros Drive
San Marcos, CA 92069

Dear Mr. Alkire:

This is in response to your letter of August 24, l989, in care of Taylor Vinson of this Office, asking for our comments on your "Brake Light Enhancer". This device flashes the stop lamps of a vehicle three times within the first two seconds after actuation of the stop lamp system, the lamps remaining illuminated thereafter.

Our comments on your device are restricted to its acceptability under the Federal regulatory scheme as either original or aftermarket equipment.

The Federal motor vehicle safety standard applicable to lighting equipment on new vehicles is Standard No. l08. This standard must be met when the vehicle is manufactured, and when it is sold to its first purchaser (i.e., dealer-installed equipment must not affect compliance of the vehicle with the safety standards). Section S5.5.10(e) of Standard No. l08 requires stop lamps to be wired to be steady burning in use, and your device's initial cycle of three flashes in two seconds would create a noncompliance with this requirement. Accordingly, your device is not permissible as an item of original equipment.

There is no aftermarket Federal standard applicable to your device. Equipment intended for vehicles in use are subject to the restriction of the National Traffic and Motor Vehicle Safety Act that they may not render inoperative, in whole or in part, equipment installed in accordance with a Federal motor vehicle safety standard, if they are installed by a person other than the vehicle owner. In our view, if a modification creates a noncompliance with a standard that applies to a new motor vehicle, it is the equivalent of creating a partial inoperability of orignial safety equipment when that modification is performed on a motor vehicle in use. Installation of the Brake Light Enhancer by a person other than the vehicle owner would have this effect, and thus would be subject to the prohibition of the Act. Use of the device is also subject to the laws of the various States in which the device will be sold and operated. Although California may permit its use, per Calif. Senate Bill 1317 that you enclosed, other States may not. We are unable to advise on State laws, and recommend that you write the American Association of Motor Vehicle Administrators for an opinion. Its address is 4600 Wilson Boulevard, Arlington, VA 22203.

Sincerely,

Stephen P. Wood Acting Chief Counsel

ref:#l08 d:ll/28/89

ID: 21708.ztv

Ms. Carol Morton
Washington State Patrol
Equipment and Standards Review Unit
P.O. Box 42614
Olympia, WA 98504-2614

Dear Ms. Morton:

This is in reply to your fax of May 23, 2000, addressed to Taylor Vinson of this Office. You have asked "Can Washington State legally license . . . off-road motorcycles for road use if they comply to our equipment requirements and are issued a 'state assigned vin'?" You report that Luke Loy of this agency sent you "information indicating that for our state to license off-road motor-cycles for road use appears to be a violation of 49 USC 30112."

Under the pertinent portion of 49 U.S.C. 30112, "a person may not manufacture for sale, sell, offer for sale, introduce or deliver for introduction in interstate commerce, or import into the United States," any motor vehicle unless it complies with, and is certified as complying with, all applicable Federal motor vehicle safety standards (FMVSS). Federal law does not address the licensing or operation of motor vehicles, which is left to the States. Under Section 30103(b), however, a State is expressly preempted from having a standard applicable to the same aspect of performance as a FMVSS unless the State standard is identical to the Federal requirement. We have interpreted this as preventing States from adopting or enforcing operational or licensing requirements that would preclude the operation of vehicles that comply with the FMVSS. Thus, for example, a State could not prohibit a motorcycle from being equipped with a modulating headlamp system in order to be licensed or operated because there is a FMVSS (Standard No. 108) that expressly allows such a system.

Federal law does not prohibit Washington from registering a motorcycle meeting such requirements as the State may have imposed for licensing either new or reconstructed motor vehicles, provided that the State's requirements applicable to an aspect of performance regulated by the FMVSS are not more stringent than those of the FMVSS.

The letter you enclosed from Baja Designs of San Diego states that the company manufactures and sells modification equipment to help vehicle owners bring their motorcycles "up to State Department of Transportation criteria." In the company's opinion, 49 U.S.C. 30112 "was not intended to stop the individual vehicle owner from modifying a vehicle to comply with specific State DOT requirements and re-titling the vehicle under a state's reconstructed vehicle titling process."

Baja's interpretation of Section 30112 is not on point. To be sure, Section 30112 was not intended to "stop" a vehicle owner from complying with State requirements. Its intent is to prohibit "a person" from failing to comply with Federal requirements that apply to the manufacture and sale of motor vehicles. The issue with which we are concerned under Section 30112, then, is the Federal requirements that may apply to the conversion of an off-road motorcycle to on-road use.

For purposes of this discussion, an "off-road motorcycle" is one that was not manufactured and certified as meeting the FMVSS that apply to motorcycles, because, under our interpretations, it was not manufactured primarily for use on the public roads. The act of conversion for use on the public roads creates a motor vehicle to which new-vehicle FMVSS will become applicable at the time of the conversion. The FMVSS that apply to motorcycles are Standards Nos. 106 (brake hoses), 108 (lamps, reflective devices, and associated equipment), 111 (rearview mirrors), 119 and 120 (tires and rims), 122 (brake systems), 123 (controls and displays), and 205 (glazing materials, if the motorcycle has a windshield). Therefore, the converted motorcycle must meet, and be certified to meet, all these FMVSS.

For purposes of compliance with DOT laws and regulations, we regard the converter as the manufacturer. However, under our interpretations on kit cars, a person who supplies all the equipment required to create a motor vehicle is also regarded as a "manufacturer." Baja has related that it supplies customers with "DOT approved lighting, DOT approved tires, mirrors, speedometers, custom wiring harnesses and other equipment to facilitate compliance with state and federal standards for street vehicles." From this list, we surmise that, at the least, Baja may be providing equipment that purports to bring off-road motorcycles into compliance with FMVSS Nos. 108, 111, 119, and 123. However, we cannot conclude on the basis of this correspondence that Baja is providing all equipment needed for on-road use, and specifically that required to comply with FMVSS Nos. 106, 120 and 122 . Therefore, it appears that the converter is the manufacturer and responsible under Federal law, 49 U.S.C. 30112, for the compliance of the vehicle and its certification of compliance. We encourage all States to refuse to license vehicles for use on their roadways unless they are certified by their manufacturer as complying with all applicable FMVSS.

Finally, we come to the question of whether the State may assign a VIN to a vehicle which we view as required to meet the FMVSS. One purpose of the Federal VIN, as expressed in section S565.1 of 49 CFR Part 565, Vehicle Identification Number Requirements, is "to increase the accuracy and efficiency of vehicle recall campaigns." As noted above, the converter has become the manufacturer, and, as the manufacturer, it is also responsible for conducting recall campaigns. Where an individual has only modified his or her own motorcycle, we would not insist that the single converted vehicle be furnished with a VIN meeting Part 565, as compliance is not needed to achieve the purpose of the regulation. In this instance, a State may assign a VIN to the motorcycle. Our answer would differ, of course, if we had concluded that Baja is the manufacturer. In that event, Baja would have to furnish VINs that meet the requirements of Part 565.

One final point. In its letter, Baja uses the term "DOT approved." This term has no basis in either fact or law. We have no authority to approve or disapprove items of motor vehicle equipment. If a "DOT" symbol appears on an item of equipment or its container, the "DOT" is the equipment manufacturer's certification that the equipment conforms to all applicable FMVSS. Such certification may be found as an indication of conformance with FMVSS Nos. 106, 108, 119, the rim requirements of 120, and 125. We do not know what Baja means by use of the term "DOT-approved mirrors," because FMVSS No. 111 does not apply directly to mirrors but specifies performance requirements that a motorcycle mirror system must meet when it is installed.

You have Taylor Vinson's e-mail address; please consult him if you have any further questions.

Sincerely,
Frank Seales, Jr.
Chief Counsel
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