ID: 23685

J. Atary, Projects Manager
Elco Industries Ltd.
17 Haneviim Street
PO Box 1176
Ramat Hasharon 4711
Israel





Dear Dr. Atary:

This is in response to your fax dated October 14, 2001, in which you ask whether your Mobile Transformer is a motor vehicle that must comply with Federal motor vehicle safety standards. As discussed below, the answer appears to be no.

In your fax, you describe the Mobile Transformer as a large transformer and the associated equipment, such as breakers, switch gears, and control cabinets, that are permanently mounted on a semi-trailer. The semi-trailer is oversized and requires permits from State Departments of Transportation and an escort vehicle when driving on public roads. Since the equipment is permanently mounted to the semi-trailer, the semi-trailer cannot be used to transport goods.

You state that the Mobile Transformer is not intended primarily for highway use. It normally stays at work sites the majority of the time and is infrequently transported on public roads between these sites. These work sites are permanent substations where the Mobile Transformer is brought for replacing broken down transformers or to enable maintenance work to be performed on the substation's permanent transformer.

By way of background information, the National Traffic and Motor Vehicle Safety Act (Safety Act) authorizes our agency to issue safety standards applicable to new motor vehicles and new items of motor vehicle equipment. (49 U.S.C. 30101 et seq.) NHTSA has no authority to approve or certify any commercial product. Instead, manufacturers are required to certify that their vehicles or equipment meet all applicable standards. The following represents our opinion based on the facts provided in your letter.

The term "motor vehicle" is statutorily defined as "a vehicle driven or drawn by mechanical power and manufactured primarily for use on public streets, roads, and highways, but does not include a vehicle operated only on a rail line." (49 U.S.C. 30102(a)(6)).

Whether we consider the Mobile Transformer to be a motor vehicle depends on its use. For example, we interpret our statutory definition not to encompass mobile construction equipment, such as cranes and scrapers, which use the highway only to move between job sites and which typically spend extended periods of time at a single job site. In such cases, the on-highway use of the vehicle is merely incidental and is not the primary purpose for which the vehicle was manufactured. In contrast are instances where vehicles, such as dump trucks, frequently use the highway going to and from job sites, and stay at a job site for only a limited time. Such vehicles are considered motor vehicles for purposes of the statute we administer because the on-highway use is more than incidental.

Based on the available information, it appears that your Mobile Transformer is not a "motor vehicle" within the meaning of the Safety Act. This conclusion is based on the statements in your letter that the Mobile Transformer uses the highway only to move between job sites and typically spends extended periods of time at a single job site. Thus, the agency would consider the use of your device on the public roads to be incidental and not its primary purpose. Since your device is not a motor vehicle, it would not be subject to our Federal Motor Vehicle Safety Standards.

If the agency were to receive additional information indicating that your Mobile Transformer used the roads more than on an incidental basis, then the agency would reassess this interpretation.

I hope you find this information useful. If you have any further questions, please contact Mr. Dion Casey in my office at (202) 366-2992.






Sincerely,

John Womack
Acting Chief Counsel

ref:571
d.11/16/01

ID: 23695.ztv

Timothy O. Bartlett, Vice President
Bartlett Industries, Inc.
214 Morgan Parkway
Zebulon, NC 27957





Dear Mr. Bartlett:

This is in reply to your undated letter to George Soodoo of this agency, which we received in mid-October 2001. Your company manufactures the Bartlett Safety Hazards (BSH), a product that activates a motor vehicle's hazard warning system "at any point of impact."

Enclosed with your letter were copies of letters from this Office on activation of hazard warning systems. In our letter to Karl F. Milde, Jr., dated November 9, 1987, we informed Mr. Milde that we saw no Federal prohibition against installation of a circuit that would activate the hazard warning system at a predetermined rate of speed as long as it did not impair the effectiveness of lighting equipment required by Standard No. 108 (See S5.1.3 which prohibits the addition of motor vehicle equipment that has an impairing effect on required lighting equipment). However, a series of more recent letters reflect our opinion that hazard warning system lamps must be activated and deactivated by the driver (letters of February 15, 2001, to Paul Michelotti, February 29, 2000, to Eric Reed, and February 25, 2000, to Mark Steele). This conclusion was based upon the definition of hazard warning systems by the Society of Automotive Engineers (SAE) as "driver actuated."

The one exception to driver actuation that our recent letters reflect is automatic activation of the hazard warning system in the aftermath of a vehicle crash. As we informed Mr. Steele, "we would not view automatic activation of the hazard signals in the event of a crash as a noncompliance with Standard No. 108 since there can be no ambiguity about the signal's meaning at that point." Other past interpretations reflect our view that ambiguous signals may have an impairing effect on required lighting

equipment. Although we did not elaborate further in our letter to Mr. Steele, we meant that a device that automatically activates the hazard warning signals after a crash was not prohibited by S5.1.3.

You described the BSH as "impact activated hazard lights" without specifying the type or severity of the impact. Your letter implies that the BSH is activated in a crash rather than a low-speed impact such as may occur during a parking maneuver. You wrote that when the BHS is activated, "approaching cars are given a 'heads up' that an accident has just occurred." In addition, you stated that "BSH, especially in one-car accidents, give notice to passing motorists and/or police that an accident has just occurred." The BSH, therefore, appears to be a crash-activated system of the type deemed not prohibited by S5.1.3 in the letter to Mr. Steele. However, the fact that a device may not be prohibited under Federal law must not be represented to the public as Federal approval or endorsement of the device.

Manufacturers of equipment not prohibited by S5.1.3 should ensure that installation of the equipment does not cause a noncompliance with any Federal motor vehicle safety standard that applied to the vehicle when it was manufactured.

We understand that you have filed a petition for rulemaking for an amendment to Standard No. 108 to specifically allow BHS. You will be informed in due course by the Associate Administrator for Safety Performance Standards whether the petition has been granted.

Sincerely,

John Womack
Acting Chief Counsel

ref:108
d.1/28/02

ID: 23723.ztv

Shigeyoshi Aihara, Project Manager
Regulation and Compliance
Ichikoh Industries, Ltd.
80 Itado Isehara-City
Kanagawa-Pref.
259-1192 Japan





Dear Mr. Aihara:

This is in reply to your letter of October 24, 2001, to Taylor Vinson of this Office, presented at the conclusion of a meeting in our offices that day with representatives of this agency. You supplemented the letter with an e-mail of October 29, 2001, to Richard Van Iderstine of the Office of Safety Performance Standards.

You have asked a question with reference to the definition of "replaceable bulb headlamp" that appears in Federal Motor Vehicle Safety Standard No. 108. In pertinent part, S4 of Standard No. 108 defines a replaceable bulb headlamp as a "headlamp comprising a bonded lens and reflector assembly."

Ichikoh has designed a headlamp with a lens and reflector assembly "fixed with synthetic rubber hot melt, clips, screws, and clamps." Although the "lens is separate from" the reflector, your letter stated that it cannot be removed from the reflector assembly "unless clamps (10 portions) are broken." You state that "when a lens is damaged, it will be exchanged by the whole lamp assembly," and assure us that the lens cannot be removed without destroying the housing. However, you confirmed that the headlamp can be reassembled using the screws provided, and that the housing is not destroyed, only damaged to the extent that all the features that hold the lens are not present. You have asked whether this configuration is sufficient to comprise "a bonded lens and reflector assembly."

We have provided only four interpretations of this phrase. On July 13, 1987, we informed Dr. Ernst of Hella that a design in which the lens was joined to the reflector by three screws did not constitute "a bonded lens and reflector assembly." On December 24, 1990, we informed Herr Spingler of Bosch that if a lens could not be manually separated from the housing, we would consider the bond sufficient for purposes of defining "replaceable bulb headlamp. On March 8, 1995, we again wrote Herr Spingler, on this subject, informing him that "the intent of the definition was that the lens and reflector assembly be an indivisible unit upon manufacture of the headlamp." This meant that, "if a lens is broken, the entire lens reflector assembly must be replaced." Finally, on September 11, 1998, we responded to Mr. Muraoka of Koito with respect to a headlamp "whose lens is bonded not with one adhesive agent, but with using some screws or clamps." We informed Koito that its design would not be a replaceable bulb headlamp because the connection was divisible and impermanent.

In the Ichikoh design under discussion, the lens is fixed to the housing by ten clamps, two clips, and screws. If a lens is broken, you initially informed us that the entire headlamp assembly would have to be replaced, since the lens could not be removed without breaking the clamps. However, it appears from subsequent discussions that the design of this headlamp is such that the lens can be replaced using the screws, even though the clamps are broken. This, in essence, is the interpretation we provided Dr. Ernst in 1987 when we said that a lens held by three screws was not a bonded assembly. Also, the synthethic rubber hot melt serves not as a bonding agent but as a gasket, in a manner similar to an O-ring in the Ernst lamp. Thus, the Ichikoh design does not comprise a "bonded lens and reflector assembly" for the purpose of defining a "replaceable bulb headlamp."

Your letter depicts four alternative designs, and you have described two more in your e-mail. Each of these alternatives utilizes the same clip and clamp arrangement as the original design, and a variation of the screw design intended to make the screw less accessible. Although the intent is to make it less likely that the lens will be replaced separately, in no case is it impossible to do so. Therefore, none of Ichikoh's alternatives comprise a "bonded lens and reflector assembly."

As we informed Herr Spingler in 1990, "the intent of the definition is that, once the lens is joined to the reflector assembly, it shall not be separable," and that "any method of adhesion that accomplishes this would be a sufficient bond." In view of our interpretations over the years, it is likely that only an adhesive agent will provide a bond that satisfies the definition.

Sincerely,

John Womack
Acting Chief Counsel

Enclosures
Ref:108
d.12/11/01

ID: 23729.ztv

Mr. Kevin Thies
26713 138^th Place, SE
Kent, WA 98042-8056

Dear Mr. Thies:

This is in reply to your letter of October 4, 2001, asking for an interpretation of Federal Motor Vehicle Safety Standard No. 108. We regret the delay in responding to you.

You quoted S5.5.4 which states in pertinent part "The stop lamps on each vehicle shall be activated upon application of the service brakes." You report that the stop lamps on your vehicle "will turn on upon initial application of the service brakes." However, "as I come to a stop, I let up a little bit on the brake pedal for a smooth stop. When I let up that little bit of pedal pressure, the brake lights turn off even though the service brakes are still applied." You ask whether your vehicles performance complies with S5.5.4.

Without conducting specified compliance testing, we do not have an opinion on the behavior of your particular vehicle. Manufacturers are required in good faith to certify that their vehicles meet all applicable Federal motor vehicle safety standards. We will, however, comment on the general question of whether stop lamps may be deactivated while the service brakes are applied.

Standard No. 108 requires, as you have noted, that the stop lamps be activated upon application of the service brakes. We have also stated that implicit in the requirement that stop lamps be activated upon application of the service brakes is the requirement that they must be deactivated when the service brakes are not applied (letters of June 3, 1991 to Norman H. Dankert and of September 22, 1997, to Senator Phil Gramm, copies enclosed).

In interpreting S5.5.4, a distinction must be made between depression of the brake pedal by a driver and application of the service brakes. In a letter of May 8, 1991, to John E. Calow (copy enclosed), we observed that when a brake pedal is depressed, there may be a small amount of "free play" before the service brake begins to apply. We went on to say that we would consider lamp activation required "as soon as any measurable brake torque occurs." Consistent with this opinion, we would say that stop lamps should remain activated whenever any measurable brake torque exists.

Sincerely,
Jacqueline Glassman
Chief Counsel
Enclosures
ref:108
d.6/10/02

ID: 23769ogm

Mr. Sebastien Lamothe
Regulations and Standards
Heuliez
Bd Georges Pompidou
79140 CERIZAY (Poitou-Charentes)
France





Dear Mr. Lamothe:

This in response to your recent letter regarding the provisions of Standard No. 201, "Occupant protection in interior impact," as they relate to different convertible top configurations. Specifically, you wish to know if the requirements of Standard No. 201 apply to two different types of convertible roofs. One roof configuration, which your letter describes as a "coupe-convertible," consists of an articulated convertible roof in which rigid roof panels fold into the vehicle's trunk when the roof is down. The second configuration described in your letter is a "convertible" hard top, which you describe as a hard shell top that is intended to replace a folding convertible top during cold weather. Based on your understanding of Standard No. 201's definition of "convertible," and the provisions of S6.3(a) excluding convertible roof frames and linkages from Standard No. 201, you believe that the Standard would not apply either to removable hard top convertible tops or the "coupe convertible" articulated folding top.

For the reasons explained below, the National Highway Traffic Safety Administration (NHTSA) does not agree with your interpretation. It is the agency's position that both convertible hard tops and articulated rigid folding convertible tops similar to the "coupe-convertible" top must meet the requirements of Standard No. 201.

S6.3(a) of Standard No. 201 provides that a vehicle need not meet the requirements of S6.1 through S6.2 for any target located on a convertible roof frame or a convertible roof linkage mechanism. "Convertible roof frame" is defined in S3 as the frame of a convertible roof. "Convertible roof linkage mechanism" is defined in S3 as any anchorage, fastener, or device necessary to deploy a convertible roof frame.

In the case of a convertible hardtop or a rigid articulated folding top similar to the "coupe-convertible" top described in your letter, it is the agency's position that the top, with the exception of those components required to raise and lower the top or to latch it into position, must meet Standard No. 201.

NHTSA addressed the issue of detachable hard tops identical to the "coupe convertible" top you describe when it responded to a Petition for Reconsideration filed by ASC, Inc., which was prompted by the agency's April 8, 1997 final rule (62 FR 16718) establishing the requirements for Standard No. 201. The ASC petition requested that the agency modify the definition of convertible roof frame to include hardtop convertibles - i.e., convertible tops that may be raised or lowered but are constructed of rigid folding sections rather than a cloth skin on a rigid frame. In rejecting that request, the agency noted that there did not appear to be any reason to exempt hardtop convertible roofs from the requirements of Standard No. 201 (see 63 FR 19839, April 22, 1998). As we noted in a June 5, 2001 letter to Mr. Mitsuhide Kikkawa (copy enclosed), NHTSA believes that the considerations applicable to hardtop convertibles also apply to detachable hard tops. Therefore, it is our position that it is both reasonable and practicable to require a vehicle with a detachable hard top to meet the requirements of Standard No. 201.

I hope that this is responsive to your inquiry. If you have any questions or comments, please contact Otto Matheke of this office at (202) 366-5253.

Sincerely,

Jacqueline Glassman
Chief Counsel

Enclosure
ref:201
d.4/5/02

ID: 23774.drn

[ ]

Dear [ ] :

This responds to your request for an interpretation of whether Standard No. 114, Theft protection, would permit an automatic transmission vehicle with your companys electronically coded card-type device that provides remote entry. With certain caveats that are explained below, our answer is yes.

Before addressing the substantive issues that you raised, I note that your request for confidential treatment of certain information in your letter was granted in a letter dated January 11, 2002, signed by Heidi Coleman of my staff, the Assistant Chief Counsel for General Law. We will make available to the public only the version of your letter which has been purged of all references to your companys identity, and which does not include the Attachments.

By way of background, the National Highway Traffic Safety Administration (NHTSA) does not provide approvals of motor vehicles or motor vehicle equipment. Under 49 U.S.C. Chapter 301, manufacturers are required to ensure that their vehicles and equipment meet applicable requirements. The following represents our opinion based on the facts you provided in your letter, and addresses some or all of the specific issues you raised as necessary to render this interpretation. If we have not addressed an issue, you should not assume that we have concurred with a position you have expressed on that issue. Likewise, this interpretation may not discuss every requirement of the Federal motor vehicle safety standards that might apply to your product. It is your responsibility as a manufacturer to determine the requirements that apply and certify the compliance of your product with those requirements. NHTSA determines the compliance of products with the safety standards in the context of an agency enforcement proceeding.

YOUR SYSTEM

In your letter, you state that the key-locking system enables automatic unlocking of vehicle doors when actuated, and the engine can be operated if the driver is carrying an electronically coded card-type device. When the card is inside a vehicle, the engine is ready for operation.

While the card is inside the vehicle, pushing an IGN-knob will activate the code matching process between the card and the vehicle. When the correct match occurs, the IGN-knob can be turned and the driver may turn the IGN-knob to positions other than the lock position to unlock the steering wheel, activate the vehicles accessories, and start the engine. You state that the IGN-knob has the five familiar positions of a conventional mechanical key layout (i.e., lock-off-ACC-on-start).

The engine starts when the IGNknob is turned clockwise to the start position. To stop the engine, the IGN-knob is turned counterclockwise to the ACC position. When it is returned to the lock position, the steering wheel is locked, the IGN-knob automatically retracts, and the electronic identification code is removed. You also state that the engine will not start if the card is outside of the vehicle, even if the code is in the system (i.e., IGN-knob is in the off or ACC position). You state that this feature is controlled by a system other than the electronic identification code.

Your letter also notes that an alarm and indicator light are provided to warn occupants not to take the card from the vehicle when the engine is still running. You note: If the card is taken from the vehicle, the engine cannot be restarted after the engine has stopped, unless the card is taken inside the vehicle again.

DISCUSSION

In an interpretation letter of January 30, 1997, to an unnamed company, we stated that Standard No.114 would permit a keyless entry system activated by an electronically coded card (similar to your companys system). We have followed that interpretation letter in addressing your keyless entry system, but have modified it with respect to the discussion of S4.5 of the standard.

Effect of Key Removal. At S4.2, Standard No. 114 states in part that each vehicle shall have a key-locking system which, whenever the key is removed, prevents (a) the normal activation of the vehicles engine or motor; and (b) either steering or forward self-mobility of the vehicle or both. A vehicle with your companys system would be permitted by S4.2 because the absence of the key (the code) prevents normal activation of the engine and steering of the vehicle.

Locked in Park. S4.2.1(a) of Standard No. 114 states that (with certain exceptions not relevant here) the key-locking system required by S4.2 in each vehicle which has an automatic transmission with a park position shall, when tested under the procedures in S5.2, prevent removal of the key unless the transmission or transmission shift lever is locked in park or becomes locked in park as the direct result of removing the key. We have determined that a vehicle with your companys system would be permitted by S4.2.1(a) because removal of the key (identification code in the system) is accomplished only when the transmission is locked in park and the IGN-knob is turned back to the lock position, when the IGN-knob automatically retracts.

Consequences of Deactivating Engine or Motor. S4.3 states that, except when an automatic transmission vehicle is in park, the means for deactivating the vehicles engine or motor shall not activate any device installed pursuant to S4.2(b) to prevent the vehicles steering or forward self-mobility or both. Because no information was provided on this aspect of your system, we are unable to provide an opinion as to whether a vehicle with your system would meet S4.3.

Combinations. S4.4 of Standard No. 114 states that for each vehicle type manufactured by a manufacturer, the number of different combinations of the key-locking systems required by S4.2 shall be at least 1,000, or a number equal to the number of vehicles of that type manufactured by the manufacturer, whichever is less. Your letter states that the keyless entry system has more than 1,000 electronic ID code combinations. As such, a vehicle with your system appears to satisfy S4.4.

Driver Warning. S4.5 of Standard No. 114 states that a warning to the driver shall be activated whenever the key required by S4.2 has been left in the locking system and the drivers door is opened, except: (a) after the key has been manually withdrawn to a position from which it may not be turned; (b) when the key-locking system is in the on or start position; or (c) after the key has been inserted in the locking system and before it has been turned.

Your letter explains that a few seconds after the driver leaves the IGN-knob in the off position, the KNOB indicator light will flash on the instrument panel and an audible alarm is activated to remind the driver to return the IGN-knob to the lock position. When the drivers side door is opened, the alarm specified in S4.5 is activated. If the door is closed without turning the IGN-knob to the lock position, another audible alarm is activated outside of the vehicle. You state your belief that these three audible alarms and the indicator will reduce the chance that the driver will leave the vehicle with the key in the ignition (i.e., that the code remains in the system).

Your system would be permitted by S4.5 because when the ING-knob is left in the off or acc positions and the door is opened, an alarm sounds. This situation is directly analogous to when a conventional key is left in the ignition in the off or acc positions and the door is opened. The addition of your two other alarms is beyond the requirement of S4.5; nonetheless, we appreciate your decision to have the warnings.

To the extent this interpretation of S4.5 is inconsistent with the January 30, 1997 interpretation letter, the earlier letter is superseded. The January 1997 letter discussed a keyless entry system that used the PASS-card, an electronically coded credit-card like device. On the issue of whether a vehicle with the PASS-card met S4.5 of Standard No. 114, we stated the following:

As long as the PASS-card is in the vehicle, the electrical systems are on and the key code will remain in the system, ready for the START button to be pressed. This situation is analogous to a keyed system being in the on position, ready to be turned to the start position. Therefore, as long as the PASS-card is in the vehicle, the exception in S4.5(b) applies and the warning need not sound when the door is opened.

Upon further consideration, we believe that the situation where the electronic code is left in a vehicle ignition system ready for the START button to be pressed is in fact analogous to the situation where a driver with a traditional metal key simply leaves the key in the vehicle ignition before opening the door. From now on, it is NHTSAs position that for keyless entry systems using an electronic code, the warning must sound when the electronic code remains in the system, the ignition knob is in the off or acc positions and the drivers door is opened. This position will apply to vehicles with keyless entry systems manufactured after the date of this letter.

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

Sincerely,
Jacqueline Glassman
Chief Counsel

Ref:114

d.7/17/02

ID: 23815

Mr. Drew Larson
5414 Martin Road
Erie, PA 16509





Dear Mr. Larson:

This is in response to your e-mail expressing concerns about your motorcycle helmet with a plastic visor and mouth guard. In your e-mail, you state that, while you were riding a four-wheeled all terrain vehicle, you fell off the vehicle, and the helmet's visor broke. You claim that the helmet was "DOT approved" but "did not hold up to many of the standards."

Your letter describes some of the injuries you suffered as a result of your fall. I hope that you have recovered from those injuries and that you suffered no permanent injuries.

By way of background information, Federal law (49 U.S.C. Chapter 301, Motor Vehicle Safety) authorizes the National Highway Traffic Safety Administration (NHTSA) to issue Federal motor vehicle safety standards (FMVSSs) for new motor vehicles and new items of motor vehicle equipment. NHTSA also investigates safety-related defects. Neither NHTSA nor the Department of Transportation approves motor vehicles or motor vehicle equipment. Instead, the law establishes a "self-certification" process under which each manufacturer is responsible for certifying that its products meet all applicable safety standards.

Motorcycle helmets are subject to FMVSS No. 218 (49 CFR 571.218), which specifies performance requirements for helmets to ensure that helmets reduce the likelihood of head injuries in crashes. The DOT symbol on the helmet is a certification by the helmet manufacturer, not the DOT, that the helmet conforms to FMVSS No. 218. The standard does not specify performance requirements for motorcycle helmet visors. There currently is no FMVSS that applies to the visor.

NHTSA investigates safety-related defects in motor vehicles and motor vehicle equipment. For information about our defect programs or to file a complaint report, you can log into http://www.nhtsa.dot.gov/cars/problems/ or call the DOT Auto Safety Hotline at 1-888-DASH-2-DOT (1-888-327-4236). A NHTSA representative will record your report.

Thank you for bringing this to our attention. I hope you find this information helpful.

Sincerely,

John Womack
Acting Chief Counsel

ref:218
d.2/11/02

ID: 23832.drn

Dietmar K. Haenchen, Process Leader
Safety Affairs and Vehicle Testing
Volkswagen
Mail Code 3C02
3800 Hamlin Road
Auburn Hills, MI 48326





Dear Mr. Haenchen:

This responds to your December 13, 2001, letter asking about S4.2.2 of Standard No. 114, Theft protection. You ask whether Volkswagen's proposed design for an "override device to permit key removal in the event of electrical failure or which would permit moving the transmission from the PARK position after the ignition key has been removed" would meet the conditions in S4.2.2 and thus be allowed. As explained below, our answer is no.

The Requirements

Standard No. 114 requires each vehicle to have a key-locking system which, when the key is removed, prevents the normal activation of the engine or motor, and prevents steering and/or forward self-mobility of the vehicle (S4.2). S4.2.1 of the standard requires the key-locking system in vehicles with automatic transmissions with a "park" position to prevent removal of the key unless the transmission or transmission shift lever is locked in park or becomes locked in park as the direct result of removing the key. However, S4.2.2 provides that:

(a) Notwithstanding S4.2.1, provided that steering is prevented upon the key's removal, each vehicle specified therein may permit key removal when electrical failure of this system (including battery discharge) occurs or may have a device which, when activated, permits key removal. The means for activating any such device shall be covered by a non-transparent surface which, when installed, prevents sight of and activation of the device. The covering surface shall be removable only by use of a screwdriver or other tool.

(b) Notwithstanding S4.2.1, each vehicle specified therein may have a device which, when activated, permits moving the transmission shift lever from "park" after the removal of the key. The device shall either be operable:

(1) By the key, as defined in S3; or

(2) By another means, provided that steering is prevented when the key is removed from the ignition, and provided that the means for activating the device is covered by a non-transparent surface which, when installed, prevents sight of and activation of the device. The covering surface shall be removable only by use of a screwdriver or other tool.

Your Question

You ask whether:

an override device located behind the vehicle ashtray, which can be removed without the use of tools, would comply if after the ashtray has been removed, the override device is accessible only by the use of a tool, such as a pen or screwdriver. In such a system, the override device would be located in an opening accessible only when the ashtray has been removed, but the opening is so narrow and deeply recessed, that a person cannot activate it without reaching into the opening with a tool such as a screwdriver or a pen or a similar device.

You further state:

Volkswagen believes that this proposed system falls within the provisions of S4.2.2 since the override device is not visible until an opaque object, the ashtray, is removed and after that object is removed, the device itself can only be actuated with the use of a tool.

Our Answer

We do not interpret S4.2.2(a) or (b) as permitting the design. Those sections require the device to be covered by a non-transparent surface that is removable only by use of a screwdriver or other tool. The ashtray is removable without the use of a tool. Assuming for the purpose of this letter that the ashtray qualifies as a non-transparent surface specified in S4.2.2(a) or S4.2.2(b)(2), your design nonetheless does not meet the standard because the ashtray can be removed without the use of a tool.

S4.2.2(b) was adopted in order to prevent vehicle rollaway, and to ensure that children are not be able to move the transmission shift lever when the key is not in the vehicle. (See final rule published on March 26, 1991 (58 FR 12464)). The National Highway Traffic Safety Administration (NHTSA) stated in the preamble to that final rule that keyless overrides must be child-proof:

A second way to prevent access by children and thus vehicle rollaway is to permit key-less overrides that are not visible and are "child-proof." After reviewing suggested designs, the agency has determined that a key-less override could prevent activation by a child if it is covered by a surface that, when installed, prevents activation of the device and which is removable only by use of a tool such as a screwdriver. An emergency override that is visible and accessible to children such as an uncovered one located on the transmission console would not be child-proof and thus would not comply with section S4.2.2(b). To ensure further that young children cannot easily gain access to the override, a surface that could be removed with a person's hands alone would not be permissible. [T]he agency has determined that such requirements are necessary to ensure that children cannot easily override the transmission shift lock and thus shift the transmission lever. (See 58 FR at 12467)

The ashtray can be easily removed by a person's hands alone, which is contrary to the requirements of the standard. While you state that the override device would be located in an opening that is "narrow and deeply recessed," the standard requires a "child-proof" cover to the device. That the override device needs to be actuated by use of a screwdriver or pen or similar device does not satisfy the requirement concerning the ability of children to access the device. Further, once the ashtray has been removed, a curious child could easily poke a pen or part of a toy into the opening, creating a potential for the harm that NHTSA sought to prevent when it adopted S4.2.2.

I hope this information is helpful. If you need further assistance, please contact Dorothy Nakama of my staff at this address or at (202) 366-2992.

Sincerely,

John Womack
Acting Chief Counsel

Enclosure

ref:114
d:2/6/02

ID: 23833.ztv

Mr. Lee M. Calkins
Quality Manager
Canfield Equipment Service, Inc.
22077 Mound Road
Warren, MI 48091





Dear Mr. Calkins:

This is in reply to your letter of December 14, 2001, asking for interpretations of 49 U.S.C. 30122 and 49 CFR 571.108, in connection with equipping a law enforcement vehicle with "blackout lighting."

You reported that "police agencies request that vehicles be equipped with manually operated switches to disable brake/turn and backup lights either singly or combined along with disabling one headlamp with a similar switch." You stated that "(t)his is to protect an officer who is undercover on stakeout or following a suspect." You have enclosed a warning by Federal Signal Corporation dated December 5, 2001, which states that "disabling the brake lights on a vehicle . . . violates the Federal Motor Vehicle Safety Standards."

You have asked the following questions:

"1. Please define 'make inoperative.'"

We have not formally defined "make inoperative," but have applied the phrase to specific fact situations in numerous interpretation letters. We shall answer your question by applying it to certain situations that have arisen under 49 CFR 571.108, Federal Motor Vehicle Safety Standard No. 108. 49 U.S.C. 30122(b) states that "A manufacturer, distributor, dealer, 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 . . . in compliance with an applicable motor vehicle safety standard." The phrase "make inoperative" includes the disabling of a device or element of design so that it does not perform its function, such as, with reference to Standard No. 108, disconnection of a lighting device. We have also construed "make inoperative" to encompass any modification of a lamp that might create a noncompliance with the original equipment requirements of Standard No. 108, such as transforming a steady-burning lamp into one that flashes. The phrase also encompasses any modification to an item of vehicle equipment other than a lamp which affects the performance of an item of required lighting equipment, such as alterations to the vehicle body which affect the visibility of lamps at angles specified in Standard No. 108 that the lamps must meet when installed on vehicles.

"2. Please define 'emergency lighting devices.'"

We have not formally defined "emergency lighting devices" either. We understand them to be lighting equipment that is not original equipment required by Standard No. 108, such as strobe lights or flashing red lights. This is in accord with the interpretations you mention in which we considered that flashing lamps were emergency lighting devices. Flashing lights are used on municipal vehicles in motion to indicate to other motorists that the vehicle is proceeding on an emergency mission which has priority over that of other traffic. Flashing lights are used on municipal vehicles at rest to indicate the presence of a potential hazard on or at the side of the road.

"3. Would the addition of these functions [for "blackout lighting"] place the vehicle into non-conformance?"

Yes. There is a specific requirement in S5.5.4 that the stop lamps be activated upon application of the service brakes. In addition, S5.5.7 requires the tail lamps (and other lamps) to be illuminated when the headlamps are activated. Activation of other lighting equipment is covered in appropriate SAE Standards incorporated by reference in Standard No. 108. Thus, alteration of a vehicle to equip it with a switch that would allow disabling of any lighting function would, in our view, create a noncompliance with Standard No. 108.

"4. If non-conformance occurs, would the temporary nature of it allow the non-conformance to be treated as stated in the reply to Mr. [Larry] Hughson [dated July 30, 2001]?"

No. We see a clear distinction between the performance of lamps so that they flash and disabling them so that they do not perform. Although not clearly described in the Hughson letter, we surmised that police vehicles were equipped with a system that flashed the headlamps, stop lamps, and backup lamps. The clear purpose of this temporary alteration of performance is to increase the conspicuity of police vehicles so that they may proceed appropriately under the circumstances. There is the opposite intent in the system you describe; lighting equipment would be switched off and no visual cue other than reflex reflectors would be furnished to other motorists either when the vehicle was at rest or in motion. We would not extend the Hughson interpretation to "blackout lighting."

"5. Would having an OEM offer these options be acceptable? Or, would the States have to perform these modifications after purchase?

We do not believe that a vehicle manufacturer could certify compliance of a vehicle with Standard No. 108, as required by 49 U.S.C. 30115, with the switches you describe installed as original equipment. The manufacturer of the switches could not install them without violating Section 30122. Under 49 U.S.C. 30165(a), such a person violating Section 30122 is liable for a civil penalty of up to $5,000 per violation, up to a maximum of $15,000,000 for any related series of violations.

The prohibition of Section 30122 does not extend to any person other than a "manufacturer, distributor, dealer, or motor vehicle repair business." This means that a purchaser such as a State or municipality could perform these modifications after purchase if the modifications were performed by an employee of the State or municipality, without violating Section 30122. We note that Federal Signal Corporation's Safety Warning is addressed to "users" of equipment that can disable stop lamps, indicating that the equipment was not installed by the manufacturer of the vehicle or equipment.

"6. If the interpretation does not allow for these functions in their present form, what suggestions would you make that could allow for these functions in the market place (e.g.) headlamp switch reset or other device?"

We understand the rationale behind disabling a headlamp, in order to alter the appearance of a surveillance vehicle, and disabling other lamps so that they will not alert a suspect in the event of inadvertent activation. However, the failure of these lamps to perform their intended functions does raise safety issues. Moreover, faced with the need to respond instantly to changed circumstances, such as the need to pursue a suspect, the driver may fail to throw the switches to restore the lighting equipment to its normal use. We do not have any suggestions.

I hope that this answers your questions.

Sincerely,

Jacqueline Glassman
Chief Counsel

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ID: 23847.ztv

Captain Bruce Bugg
Special Projects Coordinator
Law Enforcement Division
Georgia Department of Motor Vehicle Safety
P.O.Box 80477
Conyers, GA 30013-8047





Dear Captain Bugg:

We are replying to your letter of December 13, 2001, and to your e-mails of December 21 and December 27, 2001, to Taylor Vinson of this Office.

The primary issue that concerns you is the mounting height of retroreflective sheeting on the side of tank trailers. Paragraph S5.7.1.4.2 of Federal Motor Vehicle Safety Standard No. 108 states that the tape shall be located "as close as practicable to not less than 375 mm and not more than 1525 mm above the road surface at the stripe centerline." The latter dimension is the equivalent of 60 inches. The drawing of a tank trailer shown in Figure 30-4 of Standard No. 108 depicts the sheeting at a height above 60 inches. However, at a mounting height of 60 inches, the sheeting will be canted downwards. In the case that prompted your letter, the tape on a trailer certified to Standard No. 108 had the sheeting located at approximately 74 inches above the road surface.

We e-mailed you a copy of an interpretation of this Office, dated October 14, 1994, to Victor Larson. We advised Mr. Larson that manufacturers of conspicuity material certify its performance on a vertical plane and that therefore the material should be mounted on a vertical plane or as close to it as the trailer shape allows. If that vertical mounting area was higher than 1525 mm, we would consider that the conspicuity material had been mounted "as close as practicable" to the maximum specified mounting height. The conspicuity material that is mounted approximately 74 inches above the road surface, as shown in photos attached to your e-mail of December 21, 2001, appears appropriately located within the meaning of our interpretation to Mr. Larson.

Citing the need for clarity with the advent of the corresponding conspicuity requirements of the Federal Motor Carrier Safety Administration (49 CFR 393.13), in your e-mail of December 27, 2001, you asked two additional questions:

"1. If a cargo tank trailer does NOT have a frame or other suitable surface below the 1525 mm (60 inch) height, is it permissible for the conspicuity treatment on the side of the trailer to be mounted at a height above 1525 mm (60 inch) and still meet the practicability requirement?"

Yes. As the Larson letter indicates, if a trailer does not have a vertical mounting surface within the 375 mm (15 inch) - 1525 mm (60 inch) range, the manufacturer must locate the side conspicuity material at the height that is as close as practicable to that range while allowing the treatment to be mounted vertically.

"2. If a cargo tank DOES have a frame or other suitable surface within the 375 mm (15 inch) - 1525 mm (60 inch) range, is a trailer with the conspicuity treatment above the 1525 mm (60 inch) height in violation of the requirements of 49 CFR Sec. 571.108 S5.7?"

If a frame or other vertical mounting surface exists within the range specified in S5.7, a vehicle with its conspicuity treatment above 1525 mm would not comply with the standard.

I hope that this answers your questions.

Sincerely,

John Womack
Acting Chief Counsel

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d.2/4/02