ID: 12411-1.PJA

Mr. Ronny D. Choate
C&J Enterprises
4024 Fiesta
Hobbs, NM 88240

Dear Mr. Choate:

This responds to your letter asking which Federal vehicle safety regulations you must comply with in producing your police patrol vehicle, a converted full size pickup truck. The bed of the pickup truck has been enclosed with a shell and outfitted along one side with bench seats that face sideways toward the centerline of the vehicle. These seats are outfitted with lap belts for two seating positions.

Along with general questions about Federal standards, you asked specifically about requirements for roof crush testing of the shell and installation of seat belts for the bench seats. The short answer to your question is that your altered vehicle would have to meet all Federal Motor Vehicle Safety Standards (FMVSSs) applicable to pickup trucks, including those for roof crush testing and occupant restraints in the bench seats.

Before addressing your specific questions, I will provide a summary of our regulatory system. This agency, the National Highway Traffic Safety Administration (NHTSA) has the authority under 49 USC Chapter 301 to issue FMVSSs and related regulations applicable to new motor vehicles and new items of motor vehicle equipment. NHTSA does not approve or endorse products. Vehicle and equipment manufacturers are responsible for "self-certifying" that their products comply with all applicable standards. They must also ensure that their products are free of safety-related defects.

When sold to the first purchaser (in this case, a police department), a vehicle must meet all standards applicable to pickup trucks. A vehicle manufacturer must submit certain identifying information to NHTSA in accordance with 49 CFR Part

566, Manufacturer Identification. The manufacturer must also meet the requirements of 49 CFR Part 567, Certification, and place on the truck a label with information specified in 49 CFR 567.4, including the vehicle's gross axle and gross vehicle weight ratings.

A person or business modifying a new pickup truck according to your plans would be considered an "alterer" of the truck, and therefore would have certain certification responsibilities. An alterer is a person who modifies a previously certified, new motor vehicle (i.e., before the first purchase of the vehicle in good faith for purposes other than resale). Since the modifications you are planning involve the addition of components that would not be considered "readily attachable," under 49 CFR 567.7 (copy enclosed) the alterer must affix to the vehicle an additional label with the following statement: "This vehicle was altered by (individual or corporate name) in (month and year in which alterations were completed) and as altered it conforms to all applicable Federal Motor Vehicle Safety Standards affected by the alteration and in effect in (month, year.)" If the modifications alter the vehicle in such a manner that its original weight ratings are no longer valid, the new weight rating information must be provided.

In addition, if the alterer or NHTSA determines that the product contains a safety related defect caused by the conversion of the pickup, the alterer would be required to notify all owners of the defect and to provide a remedy without charge. (See sections 30118-30122 of Title 49 of the U.S. Code concerning recall and remedy requirements).

Regarding your specific question on roof crush testing of the shell over the bed of the pickup, we believe that it would not have to be tested. The test procedures in FMVSS No. 216, Roof crush resistance, are designed to test the vehicle's roof crush strength at the front corners of the roof, in the area at the top of the A-pillars (the structural members on either side of the windshield). The test device (a rigid flat plate) is inclined forward at an angle of 5 degrees and outward at an angle of 25 degrees, so a relatively low profile shell would probably not be contacted during the test, and in any case would not be providing most of the resistance. However, you should be aware that modifications to the back of the pickup cab (for example, to create a passage to the bed area) may affect the strength of the roof over the front occupant compartment. Any decrease in strength could degrade performance in the roof crush test. In this case, the alterer would not be able to rely on the original manufacturer's basis for certification that the vehicle meets FMVSS No 216.

Concerning requirements for installing seat belts for the side facing bench seat, each seat would be considered a "designated seating position" within the meaning of 571.3 since your design envisions bed mounted seats that would be used as a seating position while the vehicle is in motion. As the seats are to be installed as an item of original equipment before the first sale of the vehicle to a retail purchaser, the designated seating positions on your product would have to comply with the requirements of Standard No. 207, Seating Systems; Standard No. 208, Occupant Crash Protection; Standard No. 209, Seat Belt Assemblies, and Standard No. 210, Seat Belt Assembly Anchorages.

Your letter indicates that you plan to install lap-only (Type 1) safety belts at these seating positions to comply with Standard No. 208. This would be consistent with the requirements of Standard No. 208, which permits these designated seating positions to be equipped with either Type 1 or Type 2 (lap/shoulder) safety belts.

There are a few other standards to which I would like to draw your attention. If the shell you are going to add slides into place on the back of the truck, another standard that you should pay particular attention to is FMVSS No. 126, Truck-camper loading, because the shell that you will add would be considered a "camper." This standard has requirements for the provision of information about weight and loading. If you will be increasing the weight of the vehicle, you should consider FMVSS No. 119, New pneumatic tires for vehicles other than passenger cars, and FMVSS No. 120, concerning tire selection and loading. Since you may be obstructing the view of the inside rearview mirror by adding the shell, you should ensure that the correct mirrors are installed pursuant to S6 of FMVSS No. 111, Rearview mirrors.

I hope this information is helpful. I am also enclosing a copy of a fact sheet titled "Information for New Manufacturers of Motor Vehicles and Motor Vehicle Equipment." It outlines other laws and regulations that you should be aware of. If you have any further questions about NHTSA's safety standards, please feel free to contact Mr. Paul Atelsek of my staff at (202) 366-2992.

Sincerely,

John Womack

Acting Chief Counsel

Enclosures

ref:216#208#126#119#111

d:11/26/96

ID: 12414.ZTV

Mr. Art Maison
Purchasing Manager
Redneck, Inc.
2100 N. West By-Pass
Springfield, MO 66803

Dear Mr. Maison:

This replies to your letter of August 30, 1996, to Taylor Vinson of this Office, asking for an interpretation of the conspicuity requirements of Motor Vehicle Safety Standard No. 108.

You write that "the by-laws read that DOT-C is for the vehicles and trailers under 25,999 pounds require for that class. We would like to use these reflectors also for the DOT- C2, for the use on vehicles and trailers over 26,000 pounds."

We do not know the "by-law" to which you refer. Paragraph S5.7 of Standard No. 108 applies to all trailers of 80 or more inches overall width, and with a GVWR over 10,000 pounds. It does not distinguish between those over and under 26,000 pounds. Therefore, a trailer with a GVWR of 26,000 pounds must meet the same requirements of paragraph S5.7 as a trailer with a GVWR of 10,001 pounds.

We understand that you have discussed your problem with Pat Boyd, one of this agency's rulemaking engineers, and that your questions are: "What is the difference between DOT-C and DOT C-2" and "Does a reflex reflector have to be 2 inches wide, like reflective tape?"

Paragraph S5.7 permits a manufacturer to choose either reflex reflectors or reflective tape as the way to conform to the conspicuity requirements of Standard No. 108. "DOT-C" is the marking required for reflex reflectors, and is the reflector manufacturer's certification that the reflectors meet Standard No. 108 (Paragraph S5.7.2.3). "DOT- C2" is the marking required for reflective tape which has a width of not less than 50 mm (2 inches) and is the reflective tape manufacturer's certification that the tape meets Standard No. 108 (Paragraphs S5.7.1.3(d) and S5.7.1.5). Standard No. 108 does not require that reflex reflectors have a minimum width. Reflex reflectors are rated by the total light return per reflector, but reflective tape is rated by the light return per unit area. Standard No. 108 requires that one reflex reflector, meeting the DOT-C specification, have the same total light return as 100 mm of reflective tape meeting the DOT-C2 specification. We have seen reflex reflector bars 300 mm long certified to meet the DOT-C specification for each 100 mm segment. Standard No. 108 permits the use of these products even though they are only about 1 inch wide because they provide the same photometric performance as 300 mm of DOT -C2 reflective tape. I enclose a copy of the recent final rule which extended these requirements to truck tractors, and have circled language on p. 41357 which mentions this point.

I hope that this is responsive to your request. If you have any further questions, you may call Taylor Vinson at 202-366-5263.

Sincerely,

John Womack

Acting Chief Counsel

Enclosure

ref:108

d:9/25/96

ID: 12415.ZTV

Herr P. Binder
ITT Automotive Europe
Stuttgarterstrasse 119
74321 Bietigheim-Bissingen
Germany

Dear Herr Binder:

This replies to your FAX of September 3, 1996, asking for the regulations to be met by a new design for a center highmounted stop lamp (CHMSL).

As you describe it, in the intended design a passenger car will have two CHMSLs, one mounted in the car body and other mounted in the rear spoiler. The car body CHMSL will function until the rear spoiler extends at speed, and at the point "at which the spoiler will shade the CHMSL" the second CHMSL operates when the brake pedal is applied.

We assume that the second CHMSL is provided because as the spoiler extends it will mask to some extent the first CHMSL and may create a failure of the first CHMSL to comply with photometric and visibility requirements. This situation is addressed by paragraph S5.3.1.1 of Standard No. 108. This paragraph first specifies that lamps shall be located so that they meet visibility requirements specified in any applicable SAE Standard or Recommended Practice. In addition, this paragraph specifies that no part of a vehicle shall prevent any lamp from meeting the photometric output at any test point specified in any applicable SAE Standard or Recommended Practice. However, if motor vehicle equipment such as a spoiler prevents compliance by a lamp, an auxiliary lamp meeting the visibility and photometric specifications required for the original lamp shall be provided. We assume that the second CHMSL in the spoiler will meet these requirements.

Your letter does not say whether the first CHMSL is extinguished when the second CHMSL operates, or whether they would both operate together. Either method is acceptable to us and would not cause a noncompliance with Standard No. 108.

If you have any questions, you may refer them to Taylor Vinson of this Office.

Sincerely,

John Womack

Acting Chief Counsel

ref:108

d:10/16/96

ID: 12420.jeg

Mr. Al Farshchian
President
Air Bag Technology, Inc.
15 Hammond, Suite 304
Irvine, CA 92718

Dear Mr. Farshchian:

This responds to your letters concerning two devices that you have designed to deactivate passenger air bags under certain circumstances. I apologize for the delay in our response.

You call the first device an "air bag deployment restrictor." This device would detect a passenger's size and distance from the air bag and automatically deactivate the air bag under circumstances in which deployment would "prove hazardous." The second device would allow the owner of "any motor vehicle containing a passenger side air bag to able or disable that air bag with the flick of a switch without disabling the entire air bag system." I note that we would categorize your first device as an "automatic" cut-off device, and your second device as a "manual" cut-off device. You indicated that the devices might be sold in the aftermarket or for installation during the manufacture of the vehicle. You asked whether these devices are permitted under Department of Transportation regulations. Your question is addressed below.

By way of background information, the National Highway Traffic Safety Administration (NHTSA) issues safety standards for new motor vehicles and new motor vehicle equipment. The agency does not provide approvals of motor vehicles or motor vehicle equipment. Instead, manufacturers are required to certify that their vehicles or equipment meet all applicable standards.

One of the standards issued by this agency is Standard No. 208, Occupant Crash Protection. Manufacturers install air bags in passenger cars and light trucks in order to comply with this standard.

If either of your devices were 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 safety standards, including Standard No. 208. If the device were added to a previously certified new motor vehicle prior to its first consumer purchase, then the person who modifies the vehicle would be an alterer of a previously certified motor vehicle and would be required to certify that, as altered, the vehicle continues to comply with all of the safety standards affected by the alteration.

NHTSA has previously addressed the question of whether automatic cut-off devices and manual cut-off devices are permitted for passenger air bags under Standard No. 208. The standard does not preclude the use of automatic cut-off devices for passenger air bags so long as the dummy performance requirements are met in the specific dynamic crash conditions specified in the standard. For example, an unbelted 50th percentile male passenger dummy would have to be protected in the barrier crash test or alternative sled test specified by the standard.

Standard No. 208 expressly addresses the circumstances under which manual cut-off devices are permitted. See S4.5.4. The standard limits the types of vehicles which are permitted to have manual cut-off devices and also specifies a number of requirements for manual cut-off devices that must be satisfied. For example, the manual cut-off device must deactivate the air bag by means of the ignition key and require manual reactivation of the air bag once deactivated. The standard also specifies certain requirements for an accompanying warning light, and the option for manual cut-off devices is only available for vehicles manufactured before September 1, 2000.

I have enclosed a copy of the notice of proposed rulemaking (NPRM) and the final rule establishing Standard No. 208's requirements for manual cut-off switches, as well as a recent final rule extending the option until September 1, 2000. I have also enclosed a copy of an NPRM. addressing air bag deactivation, which discusses manual cut-off switches as a possible means of deactivation.

I also note that, since both of your devices would include indicator lights, you should also check whether they would comply with Standard No. 101, Controls and Displays.

If one of your devices were installed on a used vehicle by a business such as a dealer or repair business, then the installer would not be required to attach a certification label. However, Federal law prohibits dealers and repair businesses from knowingly making inoperative devices, such as air bags, installed to comply with a safety standard. See 49 U.S.C. 30122. In general, this "make inoperative" prohibition would prevent a dealer or repair business from installing one of your devices if the effect of such installation would be to take the vehicle out of compliance with one or more safety standards. For example, a dealer or repair business could not add manual cut-off devices to types of vehicles for which such devices are prohibited, but could add them to types of vehicles for which they are permitted (assuming all of the conditions specified in Standard No. 208 are met). The "make inoperative" prohibition does not apply to modifications made by persons to their own vehicles. Such modifications may, however, be covered by State laws.

Enclosed is an information sheet we have prepared to provide general information for new manufacturers of motor vehicles and motor vehicle equipment. Also enclosed is a copy of an information sheet explaining how to obtain copies of our standards.

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

Sincerely,

John Womack
Acting Chief Counsel

Enclosures
ref:208
d:3/31/97

ID: 12421.jeg

Mr. Michael Ostrowski
499 S. Ridge Road
Lake Forest, IL 60045
Dear Mr. Ostrowski:

This responds to your faxed letter concerning an interpretation we provided to you on August 27, 1996. I apologize for the delay in this response.

In your first letter, you asked us to "evaluate the brake system design of 1987-1990 Range Rovers" ("the I-H brake system") for compliance with Standard No. 105, Hydraulic Brake Systems. More specifically, you provided diagrams of a brake system design for those vehicles and asked whether the design came within Standard No. 105's definition of "split service brake system." We concluded that the brake system appeared to come within that definition.

In your follow-up letter, you raised a new issue concerning whether the Range Rover design comes within the definition of "split service brake system." As discussed below, the issue you raise does not change our prior conclusion.

Our earlier letter included the following discussion:

The term "split service brake system" is defined in S4 as "a brake system consisting of two or more subsystems actuated by a single control designed so that a leakage-type failure of a pressure component in a single subsystem (except structural failure of a housing to two or more subsystems) shall not impair the operation of any other subsystem."

As we understand the diagrams, the brake system at issue has two subsystems. The first subsystem, which we will refer to as Subsystem 1, is identified as the "primary hydraulic circuit." The second subsystem, which we will refer to as Subsystem 2, is identified as the "secondary hydraulic circuit."

Subsystem 2 includes the hydraulic lines and components exiting the master cylinder which activate the aft piston in each front brake caliper, and one piston in each rear brake caliper. Subsystem 1 includes the hydraulic lines and components exiting the master cylinder which activate one forward piston in each front brake caliper.

Based on our understanding of the diagrams, a leakage-type failure in Subsystem 1 does not impair the operation of Subsystem 2, or vice-versa. Therefore, the brake system appears to come within the standard's definition of "split service brake system."

In your follow-up letter, you state that a retired brake engineer has advised you that "one key reason why the U.S. brake system suppliers and the Big 3 do not use the 'I-H' brake system is that a piston seal leak in the top piston of either front caliper will result in brake fluid wetting the brake pads on that wheel and therefore will 'impair the operation' of the other subsystem." You asked us to review again "the I-H arrangement of the subject 1987 and later Range Rovers."

We do not have any information concerning whether a particular leakage-type failure in one subsystem of the brake system at issue would result in brake fluid wetting the brake pads. However, even if it did, we would not consider it to impair the operation of the other subsystem. In such an instance, the other subsystem would operate no differently than if the brake pads were not wet. Of course, as we noted in our earlier letter, Standard No. 105 does require vehicles to meet stopping distance requirements with a leakage failure in either subsystem.

If you have further questions about this interpretation, please contact Edward Glancy of my staff at (202) 366-2992.

Sincerely,
John Womack
Acting Chief Counsel
ref:105
d.8/1/97

ID: 12423-2.pja

Betsy Dittemore
Legislative Liaison
Iowa Department of Public Safety
Commissioner's Office
Wallace State Office Building
Des Moines, Iowa 50319-0040

Dear Ms. Dittemore:

This responds to your letter asking whether the proposed Iowa legislation to allow light transmittance levels of 35 percent or lower on vehicle windows complies with Federal regulations (i.e., Federal Motor Vehicle Safety Standard No. 205, Glazing Materials). You also asked "does the federal government currently pursue action in states that have adopted standards that are not in compliance with federal regulations?"

As explained below, while the Iowa legislation generally would not conflict with Federal laws, the provision allowing drivers with "light-sensitive disorder permits" to have darkened windows may conflict with Federal law. Regarding your question on NHTSA's enforcement of its light transmittance requirements, NHTSA currently has no open cases on the subject. However, if it became an enforcement priority, NHTSA could enforce the 70 percent transmittance requirement in Standard No. 205 without regard to lower thresholds set by State laws.

NHTSA has the authority under 49 USC 30111 to issue Federal Motor Vehicle Safety Standards applicable to all new motor vehicles at time of first sale to the consumer. Standard No. 205 specifies performance requirements for glazing, and includes a requirement that all windows "requisite for driving visibility" (including all windows in passenger cars) have a light transmittance of at least 70 percent. Although the standard itself does not apply after the first sale of the vehicle, 49 USC 30122(b) prohibits a vehicle manufacturer, distributor, dealer, or repair business from "mak[ing] inoperative any part of a device or element of design installed

on or in a motor vehicle or motor vehicle equipment in compliance with an applicable motor vehicle safety standard . . . ." The act of tinting regulated vehicle windows to transmittance levels darker than 70 percent is a violation of this section.

Note however, that NHTSA's regulations do not apply to certain parties or actions. Vehicle owners are not restricted by Federal law in the modifications that they make to their vehicles, and could tint their windows as dark as they like without violating Federal law (although NHTSA does not encourage tinting darker than Standard No. 205 allows). Federal law also does not regulate the operation or use of vehicles, which is under the jurisdiction of the States.

Under certain circumstances, State laws would be preempted by Federal law. 49 USC 30103(b)(1) states "[w]hen a motor vehicle safety standard is in effect . . . a State . . . may prescribe . . . a standard applicable to the same aspect of performance . . . only if the standard is identical to the [federal standard]." The State laws would be preempted by the Federal law to the extent that they regulate the same aspect of performance in a different way, or permit something that is prohibited by the Federal regulations. We explained in a July 30, 1990 response to a similar inquiry from you (enclosed) that, as long as the State legislation restricts itself to regulating the operation or use (as opposed to sale or modification) of vehicles, it would not be preempted by Federal law. By merely regulating the degree of tint in vehicles registered in the State or used on its roads, some States specify a lower transmittance level than the Federally required 70 percent.

I would summarize the legislation you sent us as prohibiting a person from operating on Iowa highways a motor vehicle requiring Iowa registration if: (1) any sunscreening device or transparent material (hereafter referred to as tinting material) is applied to the vehicle's windshield below five inches from the top of the windshield or the AS-1 line, (2) tinting material applied to any other window reduces the light transmittance of the glazing below 30 percent (accounting for the 5 percent tolerance), or is reflective, or is red, amber, or yellow in color, (3) tinting material is applied to any window to the rear of the driver and the vehicle is not equipped with left and right side rearview mirrors. The above restrictions do not apply to windows behind the driver of a "motor truck," bus, recreational vehicle, multipurpose vehicle, or any motor vehicle with a light-sensitive disorder permit affixed.

All of these provisions mentioned in the summary above only regulate the operation of vehicles, or the applicability of Iowa's law, so there is no explicit conflict with the Federal law. However, as we stated in our previous letter, we do not understand why the State of Iowa would conclude that the safety need that justifies requiring not less than 70 percent light transmittance in new vehicles is satisfied by allowing light transmittance levels as low as 30 percent in vehicles to be operated in the State.

There is one aspect of the proposed legislation that we believe could cause confusion and lead tint film installers to violate Federal law. The legislation states "[a] person suffering from a light sensitive disorder may operate a motor vehicle equipped with windows with less than thirty-five percent light transmittance on the side and rear windows, if that person has a light-sensitive disorder permit [issued by the State]." (Emphasis added). Taken literally, this language is not preempted because it restricts itself to the issue of operation, without addressing how the windows got so dark in the first place. However, most State laws prohibit certain behaviors, while the word "may" in your proposed legislation is permissive.

People reading the permissive language in this proposal may assume that there are no restrictions on installing very dark tinting material so long as a State permit has been issued. However, if a vehicle manufacturer, distributor, dealer, or repair business installs such dark tinting material, they would violate the Federal prohibition against "mak[ing] inoperative" a piece of motor vehicle equipment. We suggest that, before the proposal becomes law, you add some language expressly stating the permissive language does not permit installation of tinting material by these parties.

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

Sincerely,

John Womack

Acting Chief Counsel

ref:205

d:11/18/96

ID: 12438.WKM

Mr. Dennis S. Chrobak
American Tire Corporation
446 West lake Avenue
Ravenna, OH 44266

Dear Mr. Chrobak:

This responds to your facsimile inquiry of September 10, 1996, in which you stated that you understand that bicycles can lawfully operate on highways without licenses and that bicycles can use tires with inflation pressures of up to 225 psi. You asked whether these statements are true or whether they should be modified.

NHTSA's authority extends to regulation of new motor vehicles and new items of motor vehicle equipment. "Motor vehicle" is defined in 49 U.S. Code 30102(6) as "a vehicle driven or drawn by mechanical power" (emphasis added), and "motor vehicle equipment," such as tires, is defined as "any system, part, or component of a motor vehicle as originally manufactured," or a replacement part or accessory. Thus, since bicycles are propelled by their riders rather than by mechanical power, they do not meet the definition of "motor vehicle." This agency, therefore, has issued no Federal motor vehicle safety standards applicable to bicycles or their equipment, including their tires. The Consumer Product Safety Commission, however, has issued certain requirements for bicycle tires (see Title 16, Code of Federal Regulations, section 1512.10). Any questions about such requirements may be directed to the Office of the General Counsel, Consumer Product Safety Commission, 4330 East West Highway, Bethesda, MD 20814, telephone (301) 504-0980.

With respect to licenses, we are not aware of any Federal licensing requirements for bicycles. Some states or political subdivisions may have bicycle licensing requirements, but this agency does not maintain that information. You should contact the Departments of Transportation of the states in which you are interested for such information.

I hope this information is helpful to you. Should you have any further questions or need additional information, please feel free to contact Walter Myers of my staff at this address or at (202) 366-2992.

Sincerely,

John Womack

Acting Chief Counsel

ref: 119

d:10/4/96

ID: 12450-1.pja

Donna A. Oshiro, Esq.
1000 Bishop Street
Suite 806
Honolulu, HI 96813

Via e-mail and mail

Dear Ms. Oshiro:

This responds to your e-mail enquiring about this agency's regulations concerning seat belts on city transit buses. Your understanding of our regulations is correct--seat belts are not required on large transit buses, except for the driver's seat.

As you know, the National Highway Traffic Safety Administration (NHTSA) is authorized to develop motor vehicle safety standards applicable to all new motor vehicles, including school buses and transit buses. Our belt installation requirements vary according to the type of vehicle. For example, different requirements apply to buses than to passenger cars. For buses generally, our requirements only specify that a safety belt must be installed for the bus driver (note that NHTSA does not regulate belt use, as your e-mail implied; that is left to the States). They do not require safety belts for passengers on large buses (over 10,000 pounds GVWR) used for pupil transportation and other purposes.

We have not required large buses to have safety belts for passengers because we have not found sufficient justification for such a requirement, given that buses have excellent safety records. This safety record arises in part from the fact that, in crashes with other vehicles, buses tend to be substantially heavier than the other vehicle. As a result, the crash forces experienced by bus occupants tend to be less than those experienced by car occupants. Also, because of the elevated seating positions in large buses, bus occupants sit above the area typically damaged in a collision with another vehicle.

NHTSA does not prevent States and local jurisdictions that wish to order safety belts on large buses from doing so. Although large buses are not required by Federal law to have passenger safety belts, bus owners are free to purchase their buses with safety belts installed if they believe their particular circumstances warrant such installation.

I hope this information is helpful. If you have any further questions about NHTSA's safety standards, please feel free to contact Paul Atelsek of my staff at this address or by telephone at (202) 366-2992.

Sincerely,

John Womack

Acting Chief Counsel

ref:208

d.12/17/96

ID: 12496-3.pja

[]

Dear []:

This letter responds to your letter asking whether the key locking system you are developing for automatic transmission vehicles complies with Federal Motor Vehicle Safety Standard No. 114, Theft Protection. NHTSA has granted your request of confidential treatment regarding your identity and certain details of your key locking system. As discussed below, your system complies with the standard.

You described the operation of your proposed locking system as follows. The vehicle electronics automatically unlock the doors when they sense the presence of an electronically coded credit card-like "PASS-card." If the PASS-card is inside the vehicle, the engine can be started simply by pressing a "START" button located on the console. The engine can be stopped by pressing an "OFF" button if the transmission is in the "park" position. If the door is opened with the engine running or the transmission not in "park," a warning buzzer sounds. If the door is opened after stopping the engine, the warning buzzer does not sound. In addition, a traditional key can be used to unlock the doors and start and stop the engine. In a November 15, 1996 telephone conversation with Paul Atelsek of this office, a member of your staff confirmed that the transmission would be locked in the "park" position after the engine is stopped. Your staff member also stated that the removal of the the PASS-card from a running vehicle would have no effect on the vehicle's operation until the engine is stopped.

The term "key" is defined in S3 of the standard to include "any other device designed and constructed to provide a method for operating a locking system which is designed and constructed to be operated by that device." We agree that a credit card-like device (encoded as yours is with one of 1,000 code combinations for that vehicle type, in compliance with S4.4) that operates the doors and ignition system comes within this definition. The aspect of the device with the "key-like" properties, however, is really the code that the PASS-card transmits to the vehicle. In a May 22, 1992 interpretation to Stephen Selander, Esq., of General Motors Corporation (GM), NHTSA interpreted the code itself as the "key."

Section S4.2 of Standard No. 114 requires each vehicle to have a key-locking system that, whenever the key is removed, will prevent: (a) normal activation of the vehicle's engine or other main source of motive power; and (b) either steering, or forward self-mobility, or both. Your system meets S4.2(a) because the absence of the key (i.e., the code that the PASS-card transmits by its presence) prevents normal activation of the engine.

Your system also meets the requirement S4.2(b) because when the key code is removed, the vehicle will necessarily be locked in "park," preventing forward self-mobility. This situation is indistinguishable from that in the interpretation to GM. The enabling "key" in that system was the electronic code entered into the system. The only difference in your system is that the code is not entered manually, but automatically by the presence of a physical object, the PASS-card. In both cases, "removal" of the key code is accomplished only by locking the transmission and taking some other action (i.e., pressing a button and removing the PASS-card in your system, or turning a switch in GM's system). Although the enabling PASS-card can be removed without locking the transmission or shutting off the engine, this is no different, for the theft protection purposes of the standard, than being able to walk away from a running conventional vehicle with the keys in the ignition.

Although it was not yet in effect at the time of the interpretation letter to Mr. Selander, we noted at the end of that letter the transmission locking requirement in S4.2.1(a)(2). It requires the key-locking system in each vehicle which has an automatic transmission 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. Because the key code cannot be removed without pressing the "OFF" button, and locking the transmission or transmission shift lever in "park" is a necessary before the "OFF" button will work, your system would also comply with the transmission locking requirement.

The system also meets the requirements of S4.3, but we have some safety concerns about it. S4.3 requires that the means for deactivating the engine not activate the steering lock or transmission lock unless the vehicle is in "park." Your system complies because the means for deactivating the engine (the "OFF" button) does not itself activate these devices. The manual activation of transmission lock is merely a condition precedent to the function of the "OFF" button. The purpose of this provision is to assure that the driver's action of turning the engine off does not create an unsafe condition by locking the steering or the wheels. Most drivers assume that they will be able to deactivate the engine. In your system, the driver cannot deactivate the engine while the vehicle is in motion, even in the case of a stuck accelerator or an engine fire.

Your system complies with S4.5. It requires a warning to the driver whenever the key . . . has been left in the locking system and the driver's door is opened [except] (a) After the key has been 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.

Although the language of this provision was not intended for PASS-cards, we must apply it as best we can to your system. 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 analagous 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.

If you have any further questions about NHTSA's safety standards, please feel free to contact Paul Atelsek of my staff by telephone at (202) 366-2992.

Sincerely,

John Womack
Acting Chief Counsel

cc: Stephen E. Selander, Esq.
Ref:114
d:1/30/97

ID: 125-006333drn

Mr. Alex Angry
Power Flare
PF Distribution Center
6489 Camden Avenue, Suite 108
San Jose, CA 95120

Dear Mr. Angry:

This responds to your request for an interpretation concerning whether your battery-operated warning device, the "PowerFlare Electronic Beacon," must comply with the requirements of Federal Motor Vehicle Safety Standard No. 125, Warning devices, or any other National Highway Traffic Safety Administration (NHTSA) requirement. As explained below, because the PowerFlare Electronic Beacon has a self-contained energy source, Standard No. 125 does not apply to this product. However, since your product is "motor vehicle equipment," your company is subject to certain NHTSA requirements as the manufacturer of the equipment.

NHTSA is authorized to issue Federal motor vehicle safety standards (FMVSSs) for new motor vehicles and new items of motor vehicle equipment. Unlike the practice in many countries, NHTSA does not provide approvals of motor vehicles or motor vehicle equipment. Instead, manufacturers are required to certify that their vehicles and equipment meet applicable standards.

Effective October 31, 1994, NHTSA amended Standard No. l25 so that the standard applies only to warning devices that are designed to be carried in buses and trucks that have a gross vehicle weight rating (GVWR) greater than 10,000 pounds. (See 59 FR 49586; September 29, 1994, copy enclosed.) Moreover, Standard No. 125 specifically applies to "devices, without self-contained energy sources." (See S3. Application.)Since the PowerFlare Electronic Beacon is battery-powered, it has a "self-contained energy source."Therefore, Standard No. 125 does not apply to the PowerFlare Electronic Beacon.

Even though not covered by Standard No. 125, the PowerFlare Electronic Beacon is "motor vehicle equipment," and is subject to various provisions of 49 U.S.C. Chapter 301, "Motor Vehicle Safety." "Motor vehicle equipment" is defined at 49 U.S.C. Section 30102(a)(7) as:

(A) any system, part, or component of a motor vehicle as originally manufactured;

(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; or

(C) any device or an article or apparel (except medicine or eyeglasses prescribed by a licensed practitioner) that is not a system, part, or component of a motor vehicle and is manufactured, sold, delivered, offered, or intended to be used only to safeguard motor vehicles and highway users against risk of accident, injury or death.

In determining whether an item of equipment is considered an "accessory ... to the motor vehicle," NHTSA analyzes two criteria. The first criterion is whether a substantial portion of the expected uses of a product is related to the operation or maintenance of motor vehicles. NHTSA determines expected uses by considering product advertising, product labeling, and the type of store that retails the product, as well as available information about the actual use of the product. The second criterion is whether the product is purchased or otherwise acquired, and principally used, by ordinary users of motor vehicles.

Applying these two criteria to the PowerFlare Electronic Beacon, NHTSA concludes that although the device may have non-motor vehicle-related applications, a substantial portion of the expected use of the PowerFlare Electronic Beacon is related to motor vehicles. Your website, www.pfdistributioncenter.com, shows that the PowerFlare Electronic Beacon is marketed for use in conjunction with motor vehicles, to be deployed (in lieu of incendiary flares) on the side of the road in the event a vehicle is disabled. Product literature provided with your letter shows the PowerFlare Electronic Beacon marketed as an economical, "safe and environmentally-friendly" alternative to the incendiary flare. The literature notes that it can be used in situations where flares cannot be used, such as accident scenes where gasoline has spilled. Further, you are marketing the product to ordinary motor vehicle owners and drivers for their purchase. For these reasons, we conclude that your product is an item of motor vehicle equipment.

Manufacturers of motor vehicles and motor vehicle equipment must ensure that their products are free of safety-related defects. If you or NHTSA should determine that your product contains a safety-related defect, you would be responsible for notifying NHTSA and purchasers of the defective equipment and remedying the problem free of charge. (See 49 CFR Part 573, "Defect and Non-Compliance Responsibility and Reports.")

You write that you intend the PowerFlare Electronic Beacon to be used with commercialbuses. The Federal Motor Carrier Safety Administration (FMCSA), another agency of the U.S. Department of Transportation, has jurisdiction over interstate motor carriers operating in the United States. You should contact the FMCSA for an opinion as to whether that agencys requirements apply to your product. You may contact:

Bob Proferes, Director
Office of Bus and Truck Standards and Operations
Federal Motor Carrier Safety Administration
400 Seventh Street, SW, Room 8302
Washington, DC 20590
Telephone: (202) 366‑5307

In addition, the States regulate the use of vehicles and items of motor vehicle equipment. Some States may regulate the warning devices that operators of vehicles may or must use when a vehicle is stopped. The States can provide information on whether they have any requirements for warning devices to be used with motor vehicles.

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

Sincerely,

Jacqueline Glassman
Chief Counsel

Enclosure
ref:125#VSA
d.10/1/04