ID: 30112 30113 - Goodman

Mr. Timothy H. Goodman
Thomas Hine LLP
1919 M Street, N.W. Suite 700
Washington, D.C. 20036 Dear Mr. Goodman:

This responds to your October 8, 2021 letter concerning two provisions of the National Traffic and Motor Vehicle Safety Act (Safety Act) (49 U.S.C.§§ 30101 et seq.) as applied to several automated vehicles your client produces. The vehicles are currently undergoing testing on public roads for testing or evaluation under the non-application provision in 49 U.S.C. 30112(b)(10).1 After the testing, your client plans to seek a general exemption under 49 U.S.C. 30113 (regulations codified at 49 CFR part 555) for the sale or commercial deployment of identical vehicles.2 You ask: if the National Highway Traffic Safety Administration (NHTSA) were to grant the part 555 exemption petition for the identical vehicles, could the grant include the vehicles now undergoing testing on public roads? You believe the answer should be yes.
 
As explained below, NHTSA agrees with much of your analysis regarding the logic in including the nonconforming FAST Act vehicles3 in the part 555 exemption since the vehicles in the two groups would be identical. However, there is tension between 30112(b)(10) and 30113 that must be reconciled, and a provision in part 555 that is contrary to this outcome.4 The part 555 provision could be changed, but changes to the regulations are best accomplished through notice and comment rulemaking. So, while NHTSA agrees with the logic of your interpretation request, we believe that seeking a change via rulemaking would resolve the ambiguity in the applicable laws more definitively and would provide an opportunity for public comment on the issue.

Background
 
The Safety Act directs, in general, that 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 or motor vehicle equipment manufactured on or after the effective date of an applicable Federal motor vehicle safety standard (FMVSS), unless the vehicle or equipment complies with the standard.5 However, the prohibition is subject to exceptions and exemptions,6 two of which are relevant to your letter.

First, § 30112(b)(10), established in December 2015 as part of the FAST Act, states that the general prohibition in 30112 that a person may not manufacture for sale, sell, offer for sale, introduce or deliver for introduction in interstate commerce, or import, nonconforming vehicles does not apply to the “introduction of a motor vehicle in interstate commerce solely for purposes of testing or evaluation by a [qualifying] manufacturer that agrees not to sell or offer for sale the motor vehicle at the conclusion of the testing or evaluation.”7 This provision allows those qualifying manufacturers to operate, on public roads, nonconforming domestically produced vehicles for testing or evaluation. (The manufacturer you describe in your letter is a qualifying manufacturer under § 30112(b)(10).)

Second, § 30113 authorizes NHTSA to exempt motor vehicles from an FMVSS under defined circumstances, thereby temporarily allowing manufacturers to produce nonconforming vehicles for sale or other commercial deployment. Vehicles may only be exempted under § 30113 under one of four enumerated bases, including a basis that the vehicle for which the exemption is sought offers an overall safety level at least equal to that of a nonexempt vehicle. (49 U.S.C. 30113(b)(3)(B)(iv), 49 CFR 555.6(d).)

Discussion

The tension between 30112(b)(10) and 30113 arises because the former has language limiting the sale of vehicles introduced in interstate commerce for testing or evaluation after completion of such testing or evaluation, while the latter allows manufacturers a means to sell noncomplying vehicles that are at least as safe as non-exempted vehicles. However, we believe the provisions can be reconciled, as Congress enacted the FAST Act non-application clause after the general exemption provision of 30113 and presumably designed the two provisions to work in concert.
We believe Congress did not envision prohibiting manufacturers from selling or deploying vehicles previously tested or evaluated under 30112(b)(10) if those vehicles are identical to vehicles permitted for sale by 30113; if Congress intended such a surprising outcome under 30112(b)(10), it would have made its intentions clear. Accordingly, we interpret the clause “that agrees not to sell or offer for sale the motor vehicle at the conclusion of the testing or evaluation” as emphasizing Congress’s intent not to permit a later sale or offer for sale of the FAST Act vehicle if it is not at least as safe as a compliant vehicle. Thus, if NHTSA determines that vehicles identical to the 30112(b)(10) vehicles are at least as safe as non-exempt vehicles, it is logical that Congress intended that the 30112(b)(10) vehicles be permitted to be sold or deployed under 30113.
 
There is, however, more to reconciliating the two, as NHTSA’s regulation implementing 30113 bears on the situation at hand. 49 CFR 555.7(f) states: “[u]nless a later effective date is specified in the notice of the grant, a temporary exemption is effective upon publication of the notice in the Federal Register and exempts vehicles manufactured on and after the effective date.” NHTSA explained in the preamble to the final rule that established §555.7(f) that the amendment was “intended to clarify the agency’s policy that exemptions should not have retroactive effect which could serve to excuse manufacture of nonconforming vehicles in violation of […] the Safety Act.”8 We generally agree with your argument that your client’s testing and evaluation vehicles were not nonconforming vehicles in violation of the Safety Act because of the exception in 30112(b)(10) and so 555.7(f)’s focus on nonpermitted actions may not be germane. (Indeed, this is the basis for our position that part 555 could be reconciled with the Fast Act exception.) However, the plain language of part 555 is unambiguous as written; thus, our ability to interpret away from that plain meaning is limited. We believe addressing this matter in rulemaking is appropriate and would provide an opportunity to clarify part 555 as the regulation evolves to include vehicles previously manufactured.
 
To summarize, based on the language of part 555, NHTSA maintains its general position that part 555 is written to provide exemptions for vehicles that have yet to be manufactured. However, in the situation you describe, it would appear logical to allow the former FAST Act vehicles existing at the time NHTSA grants the part 555 petition to be included in the part 555 exemption. In order to remove any ambiguity, we believe that 49 CFR 555.7(f) should be amended, something NHTSA would consider upon receipt of a petition. Persons interested in submitting a petition for rulemaking to amend part 555 should follow the procedures for such submissions in 49 CFR part 552. It is worth stressing, however, that NHTSA’s conclusion in this letter is not a guarantee of a particular response to a petition for rulemaking. Any decision to grant or deny petitions for rulemaking is made in the context of a rulemaking proceeding in accordance with statutory criteria, including opportunity for notice and comment.     

If you have any further questions regarding this issue, please feel free to contact Callie Roach of my staff at (202) 366-2992.
 
Sincerely,
 
 Digitally signed by ANN
ANN ELIZABETH ELIZABETH CARLSON

CARLSON
 
Date: 2022.05.19 14:59:50
-04'00'
 
Ann Carlson Chief Counsel
 
Dated: 5/19/22
Ref: 30112 and 30113

1 The non-application provision at 49 U.S.C. § 30112(b)(10) was added in 2015 to the Safety Act by the Fixing America’s Surface Transportation (FAST) Act.
2 The basis of the part 555 petition is the exempted vehicles would have an equivalent overall level of safety to a non-exempted vehicle. The exempted vehicles would operate as a single captive fleet; they would not be sold to ordinary consumers.
3 “FAST Act vehicles” refers to vehicles that are tested or evaluated subject to the exception in 30112(b)(10).
4 49 CFR §555.7(f).
5 Section 30112(a)(1) of the Safety Act (49 U.S.C. 30101 et seq.).
6 Sections 30112(a) and (b).
7 Paragraph 30112(b)(10) specifies that the non-applicability only extends to a manufacturer that, prior to the enactment of the FAST Act (December 4, 2015), has (a) manufactured and distributed motor vehicles into the U.S. that are certified to comply with all applicable FMVSS; (b) submitted to the Secretary appropriate manufacturer
identification information under 49 CFR part 566, “Manufacturer Identification;” and (c) if applicable, identified an agent for service of process in accordance with 49 CFR part 551, “Procedural Rules.”
8 39 FR 37988, October 25, 1974.

ID: 571.205-Plexiglass Barriers Clarification-Klos

Mr. Thomas Klos 
AROW Global Corp. 
924 N. Parkview Circle Mosinee, WI 54455
 
Dear Mr. Klos:
 
This responds to your email to the National Highway Traffic Safety Administration (NHTSA) asking about a letter of interpretation NHTSA issued to Mr. Mike Collingwood of the Illinois DOT on August 11, 2020. The letter concerned the installation of plexiglass barriers installed to the right of the driver in school buses to help minimize the spread of the Coronavirus Disease 2019 (COVID-19). Please note that our answer below is based on our understanding of the specific information provided in your email.
 
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.
 
On August 11, 2020, NHTSA responded to Mr. Collingwood’s request regarding the installation of “plexiglass barriers” installed to the right of, and behind, the driver’s seating position on school buses.1 In the letter, NHTSA concluded that the barriers were items of motor vehicle “glazing” that must comply with FMVSS No. 205, “Glazing material.” 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).
 
In the August 2020 letter, NHTSA stated that the barriers located to the right of the driver would be “interior partitions” located in an area requisite for driving visibility. As interior partitions located in an area requisite for driving visibility, the barriers would be required to be of one of the following types of glazing: Items 1, 2, 4, 4A, 10, 11A, 11C, 14, 15A, or 15B.
 
In your letter, you ask about Table A1 in the ANSI/SAE Z26.1-1996 standard, which provides a list of glazing types that may be used for “[g]lazing to the immediate right and left of the driver” for buses. You state that, because of this category, you historically have not used glazing with AS4 or AS4A designations (hereafter referred to as Item 4 and 4A glazing) on barriers installed to the right of the driver. You ask for guidance to ensure you are using the correct glazing types for interior barriers located to the immediate right and left of the driver.
 
Items 4 and 4A glazing may be used on barriers (partitions) installed to the right of the driver. Table A1 is located in the appendix to ANSI/SAE Z26.1-1996, and the appendix, as stated in its heading, is not a part of the ANSI standard, but is included for information purposes only.2 Accordingly, when there is any disparity between the language in Table A1 and the standard, the information within the standard prevails.
 
Subsection 4.2 of the ANSI standard specifies that Item 4 and Item 4A glazing may be used in “interior partitions” and does not specifically address the category of “glazing to the immediate right and left of the driver.” Because NHTSA considered the plexiglass barriers referenced in the August 11, 2020 letter to be interior partitions, and because the standard does not exclude the use of Items 4 and 4A glazing in glazing located to the immediate right of the driver, NHTSA concluded that Items 4 and 4A glazing may be used in the partitions.
 
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,
 
                       Digitally signed by ANN
ANN ELIZABETH ELIZABETH CARLSON
  Date: 2022.05.31
  13:07:01 -04'00'
CARLSON
 
Ann Carlson 
Chief Counsel

Dated: 5/31/22
Ref: FMVSS No. 205
 
1 Letter to Mr. Mike Collingwood, (August 11, 2020) available at https://isearch.nhtsa.gov/files/571.205%20Plexiglass%20Barriers%20(002).htm. 
2 The ANSI standard states: “(This Appendix is not a part of American National Standard Safety Code for Safety Glazing Materials for Glazing Motor Vehicles Operating on Land Highways, Z26.1-1996, but is included for information purposes only.)”

ID: NCC-210420-001 - Retention Requirement 304

Mr. Ric Willard
Hyundai-Kia America Technical Center, Inc. 
6800 Geddes Road
Superior Township, MI 48198 

Dear Mr. Willard:

This responds to your request for an interpretation of how S5.2 of Federal Motor Vehicle Safety Standard (FMVSS) No. 305, Electric-powered vehicles: electrolyte spillage and electrical shock protection, would apply to low-mass, small-energy, high voltage electric vehicle (EV) components that store small amounts of electricity, such as small individual capacitors.1 Specifically, you ask whether these components are “electric energy storage/conversion devices” that are subject to S5.2, Electric energy storage/conversion device retention.
 
As explained below, our answer is no. Given that the purpose of S5.2 is to protect vehicle occupants from injury by heavy projectiles in a crash, we have determined that low-mass, low- energy, high voltage electronic subcomponents do not fall under the FMVSS No. 305 definition of “electric energy storage/conversion device,” and thus are not subject to S5.2(a).
 
Regulatory requirements
 
FMVSS No. 305 specifies requirements for, among other things, the “retention of electric energy storage/conversion devices during and after a crash” (S1). The primary requirement in FMVSS No. 305 relating to component retention is in S5.2(a), which states that, when tested in accordance with S6 of the standard, electrical energy storage/conversion devices “shall remain attached to the vehicle by at least one component anchorage, bracket, or any structure that transfers loads from the device to the vehicle structure,” and that electrical energy storage/conversion devices located outside the occupant compartment “shall not enter the occupant compartment.”
 
The standard defines the term “electric energy storage/conversion device” as “a high voltage source that stores or converts energy for vehicle propulsion. This includes, but is not limited to, a high voltage battery or battery pack, fuel cell stack, rechargeable energy storage device, and capacitor module” (S4).
 
Background
 
NHTSA first established the S5.2 retention requirement as part of a September 27, 2000 final rule that established FMVSS No. 305. 65 FR 57980. The original intent of S5.2 “was to ensure that the battery modules [i.e., energy storage/conversion devices] would not become unattached and become flying projectiles in a crash or subsequent rollover,” causing further damage outside the vehicle. In a later rulemaking, NHTSA added a second purpose to S5.2, which is “to reduce deaths and injuries during and after a crash that occur from the intrusion of electric energy storage/conversion devices into the occupant compartment.” 76 FR at 45442. NHTSA’s concern that an “electric energy storage/conversion device” could intrude into the occupant compartment stems from the fact that high voltage batteries that typically serve as an EV’s primary electric energy storage/conversion device are usually very massive, and therefore would have sufficient momentum to cause serious injuries if not secured in place in a collision.2
 
NHTSA discussed the applicability of the S5.2 retention requirement in its response to petitions for reconsideration of a June 14, 2010 final rule from Honda and the Association of International Automobile Manufacturers (AIAM). These petitions requested (among other things) that NHTSA clarify what vehicle components fall under the definition of “electric energy storage/conversion device,” and are thus subject to S5.2. As part of NHTSA’s response to these petitions, the agency explained that the S5.2 retention requirement was not intended to apply to low-mass components:
 
We also agree with Honda and the AIAM that the language of the June 14, 2010 final rule could be interpreted as unintentionally requiring low mass components, such as ducts and vents, to remain attached to the electric energy storage/conversion systems. As previously discussed, today's final rule adds a new definition for “electric energy storage/conversion device,” which includes a high voltage battery or battery pack, capacitor modules, fuel cell stacks, and rechargeable energy storage devices used for vehicle propulsion, but does not include low mass components, such as ducts, vents, and wiring harnesses.
 
76 FR at 45442. NHTSA has not elaborated on the applicability of the “electric energy storage/conversion device” definition since its response to the Honda and AIAM petitions.
 
Discussion
 
NHTSA has determined that small, low-mass and low-energy electronic subcomponents, such as individual capacitors, do not fall under the definition of “electric energy storage/conversion device,” and thus are not required to remain attached to the vehicle in a crash per FMVSS No. 305, S5.2.

As noted above, the term “electric energy storage/conversion device,” is defined, in part, through a non-exhaustive list of examples. One of the primary characteristics the devices included in this list have in common is that they are constructed from multiple subcomponents to enable them to potentially store a large amount of energy.3 For this reason, the devices in this list tend to be heavy, meaning they pose an unreasonable safety risk due to their momentum if they were to break free from the vehicle. While low-mass electronic subcomponents like individual capacitors could potentially store electrical energy, they are of sufficiently low-energy that they would not pose an unreasonable risk of electric shock in a crash, nor do they contain enough mass to pose an unreasonable risk of impact injury in a crash. Given this key difference between the low-mass items you describe and the components listed in the “electric energy storage/conversion device” definition, NHTSA does not believe low-mass and low-energy electronic subcomponents were intended to be covered by the definition. Thus, the components are not subject to S5.2.
 
NHTSA’s conclusion that the low-mass and low-energy electronic components you describe are not covered by the definition of “electric energy storage/conversion device” is consistent with the agency’s response to the AIAM and Honda petitions. Although NHTSA did not specifically identify low-mass, low-energy, high voltage electronic subcomponents as excluded from the “electric energy storage/conversion device” definition in its response to the petitions, such subcomponents are more similar to the non-electronic components listed in the petition response than they are to the devices listed in the definition. Like the non-electronic components listed in the petition response, a low-mass, low-energy, high voltage electronic subcomponent would be unlikely to pose a risk of electric shock or risk of impact injury to vehicle occupants in a crash. The fact that a low-mass and low-energy subcomponent is conductively connected to a device that does fall under the “electric energy storage/conversion device” definition does not mean the subcomponent itself falls under the definition.
Although NHTSA does not believe that small electronic components are subject to S5.2, retention methods that unreasonably allow entry of these electronic components into the passenger compartment in a crash could pose an unreasonable risk to safety. Efforts should be taken to prevent these components from entering the passenger compartment in a crash.
 
If you have further questions, you may refer them to Daniel Koblenz of my staff at (202) 366- 2992.
 
Sincerely,                                                                                                                                                               

Ann Carlson 
Chief Counsel

Dated: 5/31/22
Ref: FMVSS No. 305

 1 It is NHTSA’s understanding that these components would be small electrical subcomponents such as capacitors that are attached directly to a circuit board, and have a mass of 300 grams (0.7 pounds) at most.

2 This is well illustrated by the vehicle described in your interpretation request. According to the figures provided, the primary energy storage/conversion device (the high-voltage battery) has a mass of 473 kilograms (1,043 pounds). By contrast, all other high voltage components on the vehicle combined have a mass of 133.4 kilograms (294 pounds), and the heaviest individual component (the motor) has a mass of 64.5 kilograms (142 pounds).

 3 For example, a “capacitor module,” which is one of the illustrative examples listed in the definition of “Electric energy storage/conversion device,” is a device that is comprised of arrays of several capacitors.

ID: 2022-9-15 Letter to CBP on Legality of Odometer Mileage Blocking Devices

September 15, 2022
BY EMAIL
 
Mr. Alan Aprea
Director
Electronics Center of Excellence & Expertise
U.S. Customs and Border Protection JFK Airport Building 77 
Suite 200 
New York City, NY 11430
 
Dear Mr. Aprea:
 
I understand that the U.S. Customs and Border Protection (CBP) is working to identify and stop the importation of devices that are used in motor vehicles to prevent or partially prevent the vehicle’s odometer from accumulating mileage. Such devices may be used to slow or stop the accumulation of mileage shown on the odometer of leased vehicles, or to otherwise engage in odometer fraud.
 
To assist with your work, I am enclosing an interpretation issued by the National Highway Traffic Safety Administration (NHTSA) on this issue. As you are aware, NHTSA enforces the provisions of Chapter 327 of title 49 of the United States Code, which has the purposes of “prohibit[ing] tampering with motor [vehicle] odometers” and “provid[ing] safeguards to protect purchasers in the sale of motor vehicles with altered or reset odometers,” 49 U.S.C. § 32701(b). Pursuant to that authority, NHTSA explained in its interpretation:
 
It is unlawful for a person to “advertise for sale, sell, use, install, or have installed, a device that makes an odometer of a motor vehicle register a mileage different from the mileage the vehicle was driven, as registered by the odometer within the designed tolerance of the manufacturer of the odometer.” 49 U.S.C. § 32703(1). A person also may not “disconnect, reset, alter, or have disconnected, reset, or altered, an odometer of a motor vehicle intending to change the mileage registered by the odometer.” Id. § 32703(2). In addition, it is illegal for a person, “with intent to defraud, [to] operate a motor vehicle on a street, road, or highway if the person knows that the odometer of the vehicle is disconnected or not operating.” Id. § 32703(3).
 
The marketing for sale, sale, or use of an electronic device that slows or stops a motor vehicle’s odometer from registering mileage driven violates 49 U.S.C. § 32703. NHTSA is aware of no legitimate use for such a device.
 
January 12, 2021 interpretation (footnote omitted).
 
We appreciate CBP’s efforts to detect and prevent the importation of these devices that cannot lawfully be sold, used, or installed in the United States. Such devices, which may result in a consumer being unaware of a vehicle’s actual mileage, may pose serious safety consequences, in addition to economic and commercial harm. If you need further assistance, please contact Dan Rabinovitz at 202-366-8534 or via email at Daniel.Rabinovitz@dot.gov.
 
Sincerely,

John Donaldson 
Deputy Chief Counsel
 
Enclosure
 
Dated: 9/15/22
Ref: 49 U.S.C Sec. 32703

ID: 571.209--Attachment hardware--Freedman--17-0328

Mr. David Klopp, Director

Quality, Testing & Compliance

Freedman Seating Company

4545 W. Augusta Blvd.

Chicago, IL 60651

Dear Mr. Klopp:

This responds to your request for an interpretation concerning the attachment hardware requirements in Federal Motor Vehicle Safety Standard (FMVSS) No. 209, Seat belt assemblies.  You ask whether it is acceptable to use attachment hardware smaller than that specified in the standard if the seating system complies with the strength requirements of FMVSS No. 210, Seat belt assembly anchorages.  As we explain below, under FMVSS No. 209 it is acceptable to provide attachment hardware other than the 7/16-20 UNF-2A or 1/2-13 UNC-2A attachment bolts specified in the standard if it meets 209’s S4.3(c) strength requirements [FD(1] when tested under the demonstration procedures of FMVSS No. 209’s S5.2(c).[JP2]   The agency will not use the FMVSS No. 210 demonstration procedures in place of those of S5.2(c).

Background

FMVSS No. 209 specifies a variety of requirements for seat belt assemblies, including S4.3(c), which specifies strength requirements for attachment hardware that must be met when tested to a procedure in S5.2(c).  [FD(3] Section S4.1(f) generally requires, among other things, that a seat belt assembly include all hardware necessary for installation in a motor vehicle.  However, S4.1(f) goes on to exempt certain seat belt assemblies from this requirement:

[S4.1](f) Attachment hardware.  *  *  *  However, seat belt assemblies designed for installation in motor vehicles equipped with seat belt assembly anchorages that do not require anchorage nuts, plates, or washers, need not have such hardware, but shall have 7/16-20 UNF-2A or 1/2-13 UNC-2A attachment bolts or equivalent metric hardware.[1]

Your question concerns the meaning of the phrase “equivalent metric hardware.”  You ask whether it is acceptable to use smaller (3/8” or M10 diameter) attachment hardware if the seating system (seat belts anchored to the seat structure) complies with the strength requirements of FMVSS No. 210. 

Discussion

After examining the history of S4.1(f) regarding the phrase in question, we conclude that “equivalent” is referring to the alternate bolts’ meeting the strength requirements of S4.3(c) of FMVSS No. 209.  When the initial FMVSS No. 209 was promulgated in 1967 it incorporated by reference existing seat belt requirements codified at 15 CFR § 9.[2]  Section 9 required 7/16-20 UNF-2A or 1/2-13 UNC-2A fasteners; there was no provision for equivalent hardware.  The “equivalency” language was added later to FMVSS No. 209:

S3. Requirements.  Seat belt assemblies shall meet the requirements of [15 CFR §9] using the attachment hardware specified in paragraph (f) of 15 CFR 9.3 or approved equivalent hardware.”[3] 

NHTSA explained in the preamble to the final rule adding the equivalency language that the agency had “determined that other fasteners that meet or exceed the strength requirements of paragraph (c) of 15 CFR 9.5 may be suitable for use.  Therefore Standard No. 209 is being amended to provide for the use of an approved equivalent of equal or superior performance as an alternative to the fasteners specified.”[4]  The strength requirements in 15 CFR § 9.5(c) for attachment hardware were later re-codified at S4.3(c) of FMVSS No. 209.[5]  In sum, this history shows that the equivalency language was intended to allow the use of hardware other than 7/16-20 UNF-2A or 1/2-13 UNC-2A attachment bolts as long as the hardware meets or exceeds the strength requirements specified in S4.3(c).[6] 

These S4.3(c) strength requirements remain the same today.  They specify that attachment hardware must withstand specified forces when subjected to the test procedures in S5.2(c) of FMVSS No. 209.  This test involves applying a load to the bolt through attachment hardware from the seat belt assembly, or through a special fixture which simulates the loading applied by the attachment hardware. 

Note that S4.1(f) and S4.3 do not contemplate an FMVSS No. 210 strength test to assess the equivalency of alternate hardware.  Thus, to answer your question, NHTSA will not assess compliance with S4.3(c)’s strength requirements using the FMVSS No. 210 demonstration procedures.

“Equivalent Metric Hardware”

We recognize that the agency’s intent to state in FMVSS No. 209 that a manufacturer may provide equivalent hardware was somewhat obscured by a subsequent amendment.  The “equivalent hardware” language remained until 1998, when the standard was amended as part of a rulemaking that converted English system measurements in selected FMVSSs to the metric system.[7]  Section S4.1(f) of FMVSS No. 209 was amended by changing the phrase “equivalent hardware” to “equivalent metric hardware.”[8]  It was not the intent of the 1998 metric conversion rulemaking to make a substantive change to FMVSS No. 209.[9]  Instead, the intent was that “equivalent hardware” was still the rule.  Therefore, the agency interprets the S4.1(f) requirements to permit, as they have since 1967, fasteners other than 7/16-20 UNF-2A or 1/2-13 UNC-2A that meet or exceed the strength requirements in S4.3(c) when tested according to S5.2(c). 

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

Sincerely,

Jonathan C. Morrison

Chief Counsel

Dated: 8/12/19

FMVSS No. 209

[1] (Emphasis and footnote added.)

[2] 32 FR 2408 (Feb. 3, 1967).

[3] 32 FR 3390-91 (Mar. 1, 1967) (emphasis and footnote added).

[4] Id. (emphasis added).

[5] 34 FR 115, 117 (Jan. 4, 1969) (recodification).  Also, NHTSA amended FMVSS No. 209 to remove the word “approved” from “approved equivalent hardware.” 

[6] See also NHTSA’s letter to Takata Kojyo Co, Ltd. (Apr. 9, 1973) (stating that “[u]nder the provisions of S4.1(f), ‘equivalent hardware’ is permissible in lieu of the 7/16" bolts.  In such a case, the tests required under S4.3(c), as prescribed under S5.2(c), would be performed on the entire equivalent hardware, rather than or the individual components (bolts).”).

[7] 62 FR 19253 (Apr. 21, 1997).

[8] 63 FR 28922, 28936 (May 27, 1998) (final rule).  See also letter from Paul Jackson Rice, Chief Counsel, to J.W. Lawrence, Volvo GM Heavy Truck Corporation (May 8, 1992) (stating that equivalent metric hardware is permitted).

[9] 63 FR 28922 (“The [metric] conversions are not intended to make any changes in the stringency of the affected FMVSS”).

ID: Legality of Odometer Mileage Blocking Devices--Ro

January 12, 2021

BY E-MAIL

Mr. Kevin S. Ro Director/Group Manager

Sustainability & Regulatory Affairs Toyota Motor North America, Inc.

Re:   Illegality of Electronic Devices that Prevent Odometers from Accurately Accumulating Miles

Dear Mr. Ro:

On January 4, 2021, you sent a letter on behalf of Toyota Motor North America, Inc. (Toyota) requesting the views of the National Highway Traffic Safety Administration (NHTSA) on the legality of devices which connect to the instrument panel in a vehicle to prevent or partially prevent odometers in motor vehicles from accumulating mileage. Your letter indicates that such devices are available for purchase on the Internet and that Toyota believes they may be used to slow or stop the accumulation of mileage shown on the odometer of leased vehicles. Your letter also raises Toyota’s concern that some of these devices may render the odometer, speedometer, and steering wheel control buttons inoperable once installed, and they may prevent a vehicle from receiving the proper maintenance and inspections based its true mileage.

In NHTSA’s view, the marketing for sale, sale, or use of such a device that prevents an odometer display from reading the correct mileage is a violation of Federal law. It is unlawful for a person to “advertise for sale, sell, use, install, or have installed, a device that makes an odometer of a motor vehicle register a mileage different from the mileage the vehicle was driven, as registered by the odometer within the designed tolerance of the manufacturer of the odometer.” 49 U.S.C.

§ 32703(1). A person also may not “disconnect, reset, alter, or have disconnected, reset, or altered, an odometer of a motor vehicle intending to change the mileage registered by the odometer.” Id. § 32703(2). In addition, it is illegal for a person, “with intent to defraud, [to] operate a motor vehicle on a street, road, or highway if the person knows that the odometer of the vehicle is disconnected or not operating.” Id. § 32703(3).1

The marketing for sale, sale, or use of an electronic device that slows or stops a motor vehicle’s odometer from registering mileage driven violates 49 U.S.C. § 32703. NHTSA is aware of no legitimate use for such a device. The devices about which you inquired have two uses: (1) enabling users to completely block a motor vehicle’s odometer from accumulating any mileage

1 It is also against Federal law to “conspire to violate” 49 U.S.C. § 32703. 49 U.S.C. § 32703(4).
 

while the vehicle is being driven; and (2) enabling users to partially block a motor vehicle’s odometer from accumulating mileage while the vehicle is being driven (for example, under this mode, a vehicle driven 100 miles would add less than 100 miles to the vehicle’s odometer).2 Consequently, because these devices make an odometer register a different mileage than what the motor vehicle was actually driven, the marketing, sale, or use of these devices violates 49 U.S.C. § 32703(1). Moreover, as there is no apparent purpose for such a device other than to change the mileage registered by a vehicle’s odometer, use of the device and operation of a vehicle by a person knowing that the device is in use is in violation of 49 U.S.C. §§ 32703(2) and (3).

NHTSA may impose civil penalties of up to $11,125 for each violation of 49 U.S.C. § 32703— up to a maximum of $1,112,518 for a related series of violations. 49 U.S.C. § 32709(a)(1); 49 C.F.R. § 578.6(f)(1).3 Knowing and willful violations of      49 U.S.C. § 32703 are also subject to criminal penalties, including fines under Title 18 of the United States Code, imprisonment for not more than 3 years, or both. 49 U.S.C. § 32709(b). A person that violates 49 U.S.C. § 32703 may also be subject to other appropriate action, including a civil action by a State in which the violation occurs. 49 U.S.C. §§ 32709(c)-(d).

As your letter indicates, the installation or use of a device that prevents a vehicle’s odometer from accurately recording mileage may pose serious safety consequences, in addition to economic and commercial harm. NHTSA remains steadfast in enforcing Federal odometer laws. If you need further assistance, please contact Dan Rabinovitz at 202-366-8534 or via email at Daniel.Rabinovitz@dot.gov.

Sincerely,

JONATHAN CHARLES MORRISON

Digitally signed by JONATHAN CHARLES MORRISON

Date: 2021.01.12 15:29:46

-05'00'

Jonathan C. Morrison

Chief Counsel

2 These devices may also be set to accurately accumulate mileage (i.e., to not block mileage). In this mode, the device serves no purpose.

3 “A person that violates 49 U.S.C. Chapter 327 or a regulation prescribed or order issued thereunder, with intent to defraud, is liable for three times the actual damages or $10,932, whichever is greater.” 49 C.F.R. § 578.6(f)(2).

Dated: 1/12/21

Ref: 49 U.S.C. § 32703 Odometers

ID: 571.226--modified roof--Summit Bodyworks

Mr. Mike Arnett

Summit Bodyworks

County Rd 8

Fort Lupton, CO  80621

Dear Mr. Arnett:

This responds to your inquiry asking whether your vehicles are “modified roof vehicles,” a type of vehicle that is excluded from the applicability of Federal Motor Vehicle Safety Standard (FMVSS) No. 226, “Ejection mitigation.”  As explained below, our answer is yes. 

Paragraph S2 of FMVSS No. 226 excludes “modified roof vehicles” from the standard.  The term “modified roof” is defined in S3 of FMVSS No. 226 as follows: “‘Modified roof’ means the replacement roof on a motor vehicle whose original roof has been removed, in part or in total, or a roof that has to be built over the driver's compartment in vehicles that did not have an original roof over the driver's compartment.”

You state that you “purchase Transit cargo vans from Ford direct and then upfit the interior” to produce recreational vehicles.  You state that you do not remove the roof of the vehicle “in total,” but cut a 14-inch by 14-inch hole in the roof for an electric exhaust vent.  You ask if we would consider your modification to constitute a removal of the original roof “in part.” 

Discussion

Our answer is yes, we consider you to be removing the original roof “in part” when you remove the 14- by 14-inch section of the roof to install the electric exhaust vent. 

In an August 1, 2019 telephone conversation with Deirdre Fujita of my staff, you explain that the exhaust vent is part of an air ventilation and/or conditioning unit that is used when the vehicle is providing temporary living quarters.  It is evident to NHTSA that the unit is important for the comfort of occupants and to the vehicle’s functionality as a recreational vehicle.

After considering the information you provide, we conclude that your vehicles are “modified roof vehicles” under FMVSS No. 226.  Our conclusion is consistent with the agency’s

March 22, 2016 interpretation to Mr. Richard Coon of the Recreation Vehicle Industry Association where NHTSA affirmed that vehicles with roofs modified by the addition of “vents with moveable covers, exhaust or air circulation fans” would be modified roof vehicles under FMVSS No. 226.

I hope this information is helpful.  If you have further questions, please contact Ms. Fujita at (202) 366-2992.

Sincerely,

Jonathan C. Morrison

Chief Counsel

Dated: 8/27/19

Ref: FMVSS No. 226

ID: 571-205-Driver Shield for Buses and Vans_final signed (002)

Ms. Lee Ann Sparks Schetky

Bus & Van Sales

148 N. 90th Rd.

Culver, KS 67484

Dear Ms. Sparks:

This responds to your May 7, 2020 email asking about adding “driver shields” to transit buses and vans. You explain that you are developing a driver’s shield assembly to provide to your customers in the transit industry in an effort to protect drivers from the Coronavirus Disease 2019 (COVID-19). You describe the shields as being constructed with plexiglass, stainless tubing and fasteners, with a swing out door to give drivers access to the stepwell entry platform and passenger cabin. You ask about the requirements that would apply when adding these shields to vehicles. We appreciate this opportunity to respond.

Background 

By way of 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 (FMVSS) that set performance requirements for new motor vehicles and new items of motor vehicle equipment. NHTSA does not approve motor vehicles or motor vehicle equipment and does not determine whether a product conforms to the FMVSS outside of an agency compliance proceeding. Instead, the Safety Act requires manufacturers to self-certify that their products conform to all applicable FMVSS that are in effect on the date of manufacture. NHTSA also investigates safety-related defects.

Discussion

Our answer below is based on our understanding of the specific information provided in your email and attached documentation. Please note that this interpretation letter does not have the force and effect of law and is not meant to bind the public in any way. NHTSA will make determinations of conformance with the FMVSSs only in the context of an agency enforcement proceeding. 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.

After reviewing the information you provided, NHTSA has concluded that the transparent material of the “shield assembly,” located immediately to the right of a driver, is an interior partition composed of motor vehicle “glazing” that must comply with FMVSS No. 205, “Glazing materials.” FMVSS No. 205 establishes minimum performance requirements for glazing materials for use in motor vehicles and motor vehicle equipment and 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 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. FMVSS No. 205 applies to glazing installed in motor vehicles1 prior to first purchase and to aftermarket glazing for use in motor vehicles.

As motor vehicle glazing, the transparent material of your barrier 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 distributer who cuts the glazing into components for use in motor vehicles or items of motor vehicle equipment.2 If you, in assembling the barrier, cut the glazing, you must ensure the glazing meets the requirements of FMVSS No. 205, and must certify its compliance pursuant to S6.3 of FMVSS No. 205. On the other hand, if you only assemble the barrier using pre-cut glazing that has been certified by a glazing manufacturer, you are not required to certify the glazing. However, as the manufacturer of the aftermarket barrier, you are responsible for ensuring your product is free from safety-related defects. 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.

As described in your email, the barrier would be located to the right of the driver. In that location, and for every vehicle type, portions of the glazing would be requisite for driving visibility. Any portion of the glazing that the driver would see through in order to view windows requisite for driving visibility would also be considered requisite for driving visibility. For buses and multipurpose passenger vehicles (MPVs), this would include any window to the immediate right or left of the driver and the front windshield.3 (For passenger cars, all windows are considered requisite for driving visibility.)

1 Requirements for glazing vary by vehicle type. You state that the barriers will be installed in buses and “vans.” NHTSA does not use the term “van” when classifying motor vehicles for purposes of FMVSS applicability. If the vehicle in which the barriers will be installed carry more than 10 persons, the vehicle would be classified as a bus under NHTSA’s FMVSS. If the vehicle carries 10 or fewer persons, it would be classified as either a multipurpose passenger vehicle (MPV) or passenger car, depending on whether the vehicle is built on a truck chassis or with special features for occasional off-road operation (49 CFR 571.3). Based on your email, we assume that the vehicles in which the barriers would be installed are not passenger cars. Thus, we assume the vehicles are “buses” or “MPVs.” We assume the vehicles are not trucks. This classification is important for determining the application of the glazing standard to the vehicles.

2 49 CFR 571.205, S6.

3 In a letter to Cris Morgan, 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

Glazing for interior partitions in areas requisite for driving visibility must be of one of the following types of glazing: Item 1, Item 2, Item 4, Item 4A, Item 10, Item 11A, Item 11C,4 Item 14, Item 15A, or Item 15B. Glazing for interior partitions in areas not requisite for driving visibility must be one of the following types of glazing: Item 1, Item 2, Item 3, Item 4, Item 4A, Item 5, Item 10, Item 11A, Item 11B, Item 11C, Item 12, Item 13, Item 14, Item 15A, Item 15B, Item 16A, or Item 16B.

Please note that there may be additional requirements depending on who installs the barrier. If the barrier is installed prior to first vehicle sale, the installer must ensure that, with the barrier installed, the vehicle complies with FMVSS No. 205 and all other applicable FMVSS, and must certify the vehicle as complying with all applicable FMVSS. If the barrier 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 either case, the entity installing the barrier should pay particular attention to ensuring that installation of the barrier does not obstruct the driver’s view of the mirrors and/or rearview image required under FMVSS No. 111, “Rear visibility,” impact the vehicle’s compliance with FMVSS No. 302 “Flammability of interior materials,” prevent the driver from readily accessing emergency exits installed in compliance with FMVSS No. 217, “Bus emergency exits and window retention and release,” or impede the driver’s ability to see through the windows needed for driving visibility.5

Apart from requirements that NHTSA administers, the installation of the barrier may be subject to other Federal or State laws or regulations. For example, purchasers or lessees of the vehicles may be subject to the Americans with Disabilities Act (ADA) and the accessibility requirements found at 49 CFR Parts 37 and 38 and may need to ensure that the vehicle they purchase or lease continues to comply with the requirements after the barrier is installed.

these windows would be considered requisite for driving visibility. Letter to Cris Morgan (January 14, 2009), available at https://isearch.nhtsa.gov/files/08-004149--19%20Nov%2008--sa.htm.

4 If the partition is a bullet-resistant shield constructed using Item 11C glazing, the combined parallel luminous transmittance with perpendicular incidence through both the shield and the permanent vehicle glazing is to be at least 60 %.

5 To ensure that installation does not impact the vehicle’s compliance with applicable FMVSS, the installer should be familiar with FMVSS requirements for a vehicle of its type and weight. Please note that installation of a safety barrier in vehicles with a GVWR of 4,536 kg (10,000 pounds) or less may require additional considerations as there are different, and often more stringent, requirements for lighter vehicles.

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: 2020.06.04 19:42:26 -04'00'

Jonathan C. Morrison Chief Counsel

Dated: 6/4/20

Ref: FMVSS No. 205

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.