ID: 18826.ztv

Mr. Gerald C. Philips
President
Fiber Light Solutions, LLC
1408 One Hancock Plaza
Gulfport, MS 39501-1980

Dear Mr. Philips:

This is in reply to your letter of September 22, 1998, to Taylor Vinson of this Office, seeking further clarification of the relationship of Federal Motor Vehicle Safety Standard No. 108 Lamps, Reflective Devices, and Associated Equipment to your product, "Fat Boyz Flasherz," with respect to its installation on pick-up trucks. We have provided interpretations about this product to your company on January 31, 1997, and September 22, 1998.

We are also responding to your letter of September 30, 1998, to Larry Minor, addressed to him at the National Highway Traffic Safety Administration (NHTSA), with respect to the installation of "Fat Boyz Flasherz" on tow trucks. Mr. Minor is with the Office of Motor Carrier Research and Standards of the Federal Highway Administration (FHWA). That is the agency within the Department of Transportation responsible for safety regulations concerning the operation of heavy trucks and buses in interstate commerce. With respect to tow trucks, its regulations are currently applicable to commercial motor vehicles with a gross vehicle weight rating of 4,536 kg (10,001) pounds or more. We are unable to tell from your schematic whether the tow truck illustrated that is equipped with "Flasherz" is subject to FHWA regulations. However, FHWA allows the use of additional lighting equipment provided the additional equipment does not decrease the effectiveness of the lamps and reflectors that NHTSA requires under Federal Motor Vehicle Safety Standard No. 108, and the FHWA has concurred in this letter to you.

In my letter of September 22, I advised your company that "the color must be red for FATBOYZ mounted on the side of the box of pickup trucks, and, on trailers, amber up to the midpoint of the trailer, and red to the rear of the midpoint." You believe that the issue is the "mid-point" question, and that "since the now required cab rear red light is beyond the mid-point from the rear of the pick-up truck, and that it can be seen from the side, that an interpretation of the regulations could permit use of Flasherz as described herein."

As we have advised before, we regard the Flasherz light rail, as previously described, as a supplementary side marker lamp. The cab-mounted center stop lamp is not required to be seen from the side of the vehicle, and therefore is not relevant to this interpretation. However, we have reconsidered the issue of supplementary side marker lamps, and we agree that yellow is the correct color for "Flasherz" when operating as a side marker lamp. European trucks are required to have a series of side marker lamps, all of which are yellow except the rearmost. Canada permits the European arrangement of yellow side marker lamps spaced not more than 3m apart without requiring one to be mounted exactly at the mid-point. It is also common practice on heavy trucks and trailers regulated by FHWA to have an array of yellow supplementary side marker lamps. All these arrangements use a single red rear side marker on each side. The original rear side red rear side marker would meet the requirements of Standard No. 108, while the "Flasherz" would be analogous to the supplementary yellow side marker lamps of heavy vehicles.

The diagrams you enclosed with your letters indicate that the Flasherz light rails mounted on the pick-up box and tow truck side flash with a yellow color to serve as supplementary turn and hazard warning signals. When the brakes are applied, the light rails illuminate a steady-burning red as a supplementary stop signal. On the pickup, when the turn signal is on and the brakes are applied, the light rail in the direction of the turn flashes yellow and red (on the tow truck it appears to flash only yellow), while the light rail on the opposite side remains a steady-burning red. The light rails are a steady-burning yellow under all other operating conditions.

Flasherz also incorporates a stop signal function. We do not view this feature as comprising a supplementary stop lamp because the light rail is located on the side, rather than the rear of the vehicle as stop lamps are required to be. This feature of Flasherz, then, is an "additional lamp" within the meaning of S5.1.3 of Standard No. 108 which is not prohibited if it does not impair the effectiveness of lighting equipment that the standard requires. Under the conditions described below, we believe that this feature is acceptable.

The operation of Flasherz as you describe it is not totally in accord with Standard No. 108's requirements, but we believe that Flasherz can be modified to conform with them. The system would be acceptable if it operates in the following manner. The system flashes one or both light rails in a yellow color to indicate, respectively, the direction of a turn or activation of the hazard warning system, a present feature of the system. When the brakes are applied, the light rails illuminate a steady-burning red, also a present feature of Flasherz. When the turn signal is on and the brakes are applied, however, the light rail in the direction of the turn must flash yellow/off (as it appears to do on the tow truck), or illuminate in a steady-burning red, but not both, while the light rail on the opposite side remains a steady-burning red. We believe that the alternately flashing yellow/red signal, unfamiliar to motorists, has the potential to impair the effectiveness of both the original equipment turn signal and stop lamps. The turn operation function also follows the convention for optically combined turn signal/stop lamps where the stop lamp function is suppressed during turn signal operation.

We have further comments regarding the diagram showing the tow truck, concerning the truck's strobe system. It is equipped with a yellow "strobe beacon;" when the strobe beacon is on, the light rails alternate between the strobe pulse and their normal steady-burning state, which we agree should be yellow. If the brake is applied when the yellow strobe beacon is activated, the light rails alternate between a strobe pulse in yellow and a red steady-burning state. We have informed you in a previous paragraph that we believe an alternatively flashing yellow/red has the potential to confuse motorists. We would advise caution in determining the number and pulse rate of strobe lights on motor vehicles, because they may trigger photic reactions in some observers, similar to epileptic seizures.

I hope that this is responsive to your concerns. If you have any questions, you may telephone Mr. Vinson at 202-366-5263.

Sincerely,
Frank Seales, Jr.
Chief Counsel
ref:108
d.12/23/98

ID: 18844-1.pja

Mr. W. Barry Olson
Safety and Compliance Director
East Maintenance, Inc.
P.O. Box 5010
Freehold, N.J. 07728-5010

Dear Mr. Olson:

This responds to your letter requesting an interpretation of whether the National Highway Traffic Safety Administration's (NHTSA) rear impact protection (underride guard) regulations apply to the "roll off" trailers your company manufactures. This roll off hoist equipment appears to be used to pick up and put down the long rectangular dumpsters often used to collect trash and construction debris. The short answer to your question is that your trailers are not excluded from the requirements.

From your letter and the photos you enclosed, it appears that your trailers function in the following manner. They are equipped with a tilting hoist frame that lies flat on the back of trailer. The frame rails are hinged at the rear of the trailer. To load a dumpster, the front end of the frame rails are raised by hydraulic pistons, until the rear end of the rails touch the ground behind the vehicle. In this position, the frame rails are located in the area specified in our regulations for the rear impact guard. Once the rails are tilted, a hoist pulls the dumpster up the rails onto the back of the vehicle, after which the pistons are collapsed to return the dumpster to a horizontal orientation. This appears to be the in-transit position.

Your trailers currently have an underride guard that does not meet our requirements. It automatically folds out of the way as the tilting hoist frame inclines and automatically deploys when the frame rails are lowered into the in-transit position. You state that the horizontal member of the guard is 25 inches above the ground when deployed. The rear face of the guard is 5 inches high from top to bottom, and positioned 20 inches forward of the rear of the rear extremity of the tilting frame. You state that installing a guard complying with our regulations would be impractical. You state your belief that these vehicles are excluded from our regulation as special purpose vehicles.

Federal Motor Vehicle Safety Standard (FMVSS) No. 224, Rear impact protection, requires most trailers and semitrailers weighing over 10,000 pounds to be fitted at the rear with a rear impact guard meeting the requirements of FMVSS No. 223, Rear impact guards (49 CFR 571.223 and 571.224, published on January 24, 1996 at 61 FR 2004). The excluded category of vehicle that is relevant for the purposes of this letter is special purpose vehicles.

A special purpose vehicle is defined in S4 of FMVSS No. 224 as being "a trailer or semitrailer having work-performing equipment . . . that, while the vehicle is in transit, resides in or moves through the area that could be occupied by the horizontal member of the rear underride guard . . ." (emphasis added). Your trailer is not excluded, because it does not meet the definition of a special purpose vehicle. No work performing equipment resides in or passes through the area where the horizontal member of the underride guard would be located while the vehicle is in transit. We are actively considering a petition for rulemaking to eliminate the "while in transit" limitation from the definition of special purpose vehicles. However, our evaluation of the petition may or may not result in a change to the standard. Further, any such change would not take effect until after we conduct a rulemaking proceeding, a process that takes several months.

Since your trailer does not meet the current definition of an excluded category, it would have to be equipped with an underride guard meeting our standards. We cannot provide specific guidance on trailer design, but we note that your existing guard would comply with the configuration requirements of our regulations if it were redesigned to be positioned three inches lower and 8 inches farther to the rear, and if the horizontal member were extended to within four inches of the side extremities. Perhaps this solution would work for you, as it apparently has for other manufacturers.⁽¹⁾

For your information, we are also enclosing a copy of a March 4, 1999 letter we sent to Erika Jones, discussing the need for automatically retracting a retractable guard. We emphasize that you, as the manufacturer of the vehicle, are responsible for the vehicle's compliance.

The agency would consider a petition for temporary exemption from Standard No. 224. Under one of our regulations (49 CFR Part 555), vehicle manufacturers may apply for a temporary exemption from the Federal motor vehicle safety standards. Under Sec. 555.6(a), a manufacturer whose yearly production is not more than 10,000 units may ask for an exemption of up to three years on the basis that compliance would cause it substantial economic hardship and that it has attempted in good faith to comply with the standard from which it has asked to be excused. We have enclosed a copy of Part 555 for your information. We have also enclosed a copy of our regulations relating to the protection of confidential business information. Most of the trailer manufacturers submitting petitions for temporary exemption have requested that their financial information remain confidential.

Please note Part 555 requires the agency to publish a notice in the Federal Register seeking public comment on each exemption petition before a decision can be made on such a request, and then publish a second notice either granting or denying the petition. This process normally takes three to four months from the date of submittal.

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,
Frank Seales, Jr.
Chief Counsel
Enclosures:
Parts 552, 555
ref:224
d.6/9/99

1. The National Solid Wastes Management Association (NSWMA), a trade group that may represent users of vehicles like yours, stated in a comment on roll-off hoist vehicles that "a number of manufacturers have resorted to a retractable underride [guard] design, where a strut attached to the rear chassis frame will cause the underride [guard] to move forward and out of the interference area as the frame is tilted."

ID: 18857.ztv

Edward L. Anderson, PE
Supervisor, Automotive Engineering
Central Automotive Division
Port Authority of New York and New Jersey
Port Authority Technical Center
241 Erie Street
Jersey City, NY 07310-1397

Dear Mr. Anderson:

This is in reply to your fax of September 29, 1998, to Rich Van Iderstine of this agency. You have questioned the compliance of certain dump trucks with the rear lighting requirements of Federal Motor Vehicle Safety Standard No. 108 Lamps, Reflective Devices, and Associated Equipment. Our delay in answering your letter is due, in part, to our reassessment of the issue you raised, and our wish to provide you with the results of that reassessment.

Table II of Standard No. 108 requires, as you note, that clearance lamps on the rear shall be mounted "as near the top as practicable." The Port Authority has bought dump trucks with "both identification and clearance lights mounted below the dump body at chassis level" rather than "at the high rear corners as depicted on the dump truck shown on the [National Highway Traffic Safety Administration (NHTSA)] website." You ask if there is an "exception that we are missing or should we be insisting that manufacturers install their clearance lights as shown."

The only exception is stated in S5.3.1.4 of Standard No. 108, which provides that rear clearance lamps need not meet the requirement of Table II that they be located as close as practicable to the top of the vehicle if the rear identification lamps are mounted at the extreme height of the vehicle. This does not appear applicable to the situation you cite where both identification and clearance lamps are located at chassis level.

The website illustration indicates the preferred location for identification and clearance lamps. However, the determination of the circumstances under which an uppermost location may be "practicable" has been the subject of our review. I enclose a copy of a Federal Register notice published on April 5, 1999, that discusses this issue in full. Heretofore, we have accepted a manufacturer's determination of "practicability" unless it was clearly erroneous. Under our published interpretation, we will no longer defer to a manufacturer's subjective determination of practicability. Instead, as applied to dump trucks, if under all the circumstances, it would be practicable to locate clearance and identification lamps closer to the top of a vehicle than they have been, preferably at the top of the dump truck, the manufacturer must do so.

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

Sincerely,
Frank Seales, Jr.
Chief Counsel
Enclosure
ref:108
d.4/16/99

ID: 18859.ztv

Andre Hubert, President
Electro Design Stan Inc.
50 Daoust
St-Eustache, Qc J7R 5B5

Dear Mr. Hubert:

Please pardon the delay in responding to your letter to Mr. George Entwistle of this agency which was forwarded to this office for response. Your letter seeks to clarify the classification of the Electro-Radar which you intend to export to the United States in the near future. You enclosed a promotional brochure describing the unit and a tariff classification ruling from the U.S. Customs Service.

You described the Electro-Radar as a radar system mounted on a trailer that is used by municipalities and other transportation departments to determine the speed of passing motor vehicles, then display in large LED numbers both the applicable speed limit and the speed of the vehicle. You stated that the unit is mounted on a trailer for transport from one site to another. Once at a site the equipment is installed and remains at the same site for periods varying from one day to several weeks. You asked whether this unit may be excluded from the definition of a motor vehicle as long as it has the required lighting equipment and if so, which box on the NHTSA Form HS-7, DECLARATION - Importation of Motor Vehicles and Motor Vehicle Equipment Subject to Federal Motor Vehicle Safety, Bumper and Theft Prevention Standards, corresponds to your situation.

Chapter 301 of Title 49, U.S. Code (U.S.C.) (hereinafter Safety Act) authorizes the National Highway Traffic Safety Administration (NHTSA) to establish Federal motor vehicle safety standards (FMVSS) applicable to new motor vehicles and new items of motor vehicle equipment. The Safety Act defines "motor vehicle" 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 your Electro-Radar is considered to be a motor vehicle depends on its intended use. It is NHTSA's position that the statutory definition quoted above does not envision, for example, mobile construction equipment such as cranes and scrapers that use the public roadways only for transport between off-road job sites and that typically spend extended periods of time at those off-road sites. In such cases, the on-road use of that equipment is merely incidental and is not the primary purpose for which the equipment was manufactured. This contrasts with vehicles such as dump trucks that frequently use the public roadways going to and from off-road job sites but remain at those sites for only a limited period of time. Those vehicles are considered motor vehicles for purposes of the Safety Act since their on-road use is more than merely "incidental."

The descriptive brochure of the Electro-Radar shows that it is a small, very mobile unit that can be easily towed from site to site over the public roads. Not only is the unit towed on-road while being transported to its next site, the brochure shows that the unit is likely to be used on the public streets or roads as a means of traffic speed control. Your letter states that the units are utilized at those sites from one day to several weeks, which means that the units are frequently transported over the public roads. Such frequent transportation of the Electro-Radar over the public streets and roads is more than merely incidental to the use for which it was manufactured. Accordingly, it is our opinion that the unit meets the definition of a motor vehicle and as you stated, would be classified as a trailer.

A "trailer" is defined in 49 Code of Federal Regulations (CFR) 571.3 as:

[A] motor vehicle with or without motive power, designed for carrying persons or property and for being drawn by another motor vehicle.

Thus, in order to be imported into the United States, the Electro-Radar must comply with all FMVSSs applicable to trailers. For your information, I am enclosing a fact sheet entitled Federal Requirements for Manufacturers of Trailers. Please note that, among other things, the trailer must be assigned a vehicle identification number (VIN) that complies with 49 CFR Part 565 and be certified as prescribed in 49 CFR Part 567.

You also asked which box should be marked on the Form HS-7 if the trailer is considered a motor vehicle. For the trailer in question, you should mark Box 2A.

I hope this information is helpful to you. Should you have any questions or need additional information, feel free to contact Walter Myers or Taylor Vinson of my staff at (202) 366-2992 or 366-5263 respectively, or either by fax at (202) 366-3820.

Sincerely,
Frank Seales, Jr.
Chief Counsel
Enclosure
Ref:108;#VSA
d.5/4/99

ID: 1886y

The Honorable Harry Reid
United States Senate
Washington, D.C. 20510

Dear Senator Reid:

Thank you for your letter to the Department of Transportation, on behalf of the City of Sparks, Nevada. That city's police department has received six new patrol cars equipped with air bags. According to the City Attorney for Sparks, the city police cars are often required to push disabled vehicles out of travel lanes of highways and the police officers are afraid that the air bags will be activated during these pushing operations. You asked if the Department of Transportation would authorize the Sparks police department to disconnect the air bags on its patrol cars. I am pleased to have this opportunity to explain our law and regulations to you.

The National Traffic and Motor Vehicle Safety Act (the Safety Act) authorizes this agency to issue safety standards applicable to new vehicles and new items of motor vehicle equipment. We have exercised this authority to issue Standard No. 208, Occupant Crash Protection (49 CFR /571.208). Standard No. 208 requires all 1990 model year cars to be equipped with automatic crash protection, and specified percentages of each manufacturer's 1987, 1988, and 1989 model year cars to be so equipped. Chrysler, the manufacturer of the patrol cars in question, has chosen to comply with the requirement for automatic crash protection by installing air bags in these police cars.

When a safety standard like Standard No. 208 is in effect and applicable to new passenger cars, the Safety Act prohibits any person from manufacturing, selling or offering for sale, importing, or introducing in interstate commerce any new car that does not comply with the safety standard. However, the Safety Act provides that these prohibitions do not apply after the first purchase of the car "in good faith for purposes other than resale." Hence, the Federal requirement that the cars comply with all applicable safety standards ceased to apply when the Sparks city police department purchased these cars, since the police department bought these cars in good faith to use them as police patrol cars, not to resell them.

After the first purchase of a car in good faith for purposes other than resale, the Safety Act prohibits any manufacturer, distributor, dealer, or repair business from "rendering inoperative" any device or element of design installed in the car in compliance with an applicable safety standard. Obviously, disconnecting air bag systems would have that effect. Accordingly, Federal law prohibits any manufacturer, distributor, dealer, or repair shop from disconnecting the air bag systems on the Sparks police department cars.

Please note that the Safety Act does not prohibit individual vehicle owners from rendering inoperative safety features on their own vehicles. Hence, the City of Sparks does not need any sort of "authorization" from this agency to disconnect the air bag systems on the city's police cars. The City of Sparks is permitted to disconnect the air bags on its own vehicles without violating any Federal law, just as any resident of Sparks can remove any safety equipment they like from their own vehicles without violating Federal law. Such removals may, however, violate the laws of the State of Nevada.

I recommend that the city carefully consider the effects of disconnecting the air bag systems in its police cars, even though Federal law does not prohibit the city from doing so. The air bags in those cars are an effective means of protecting vehicle occupants in frontal crashes. As to the possibility of inadvertent deployment of air bags in police cars, I note that the agency has entered into a contract under which police cars have been retrofitted with air bag systems, without a single reported instance of an air bag detonation while pushing a disabled vehicle. Enclosed is a report with some additional information on this contract. Particularly since the City of Sparks police officers face the possibility of becoming involved in high speed pursuit situations, we believe those police officers deserve the benefits of automatic crash protection in their police cars.

I hope this information is helpful. Please do not hesitate to contact us if you have any further questions or need additional information on this subject.

Sincerely,

Stephen P. Wood Acting Chief Counsel

Enclosure /ref:VSA#208 d:5/25/89

ID: 1887y

Mr. P.H. Moes
President
U.S. Trade Corp.
1661 Katy Lane
Fort Mill, SC 29715

Dear Mr. Moes:

This is in response to your letter of April 27, 1989, requesting an interpretation of your company's obligations and responsibilities when importing and converting motor vehicles for use in the United States. Specifically, you asked about the effects of the differing practices of the Department of Transportation (DOT) and Environmental Protection Agency (EPA) with respect to indicating the importer of record on their respective import forms, Form HS-7 and Form 3250-1. You also asked about your obligations for annual CAFE reporting.

Your understanding that the vehicle owner is normally shown as the importer of record on DOT Form HS-7 is correct. EPA, on the other hand, requires that for purposes of certification under EPA Form 3520-1, an independent commercial importer (ICI) registered with EPA must be shown as the importer of record. You indicated that these two different designations of the importer of record have caused confusion in your dealings with U.S. Customs officials. You state that those officials have sometimes required customs brokers to list your company as the importer of record on the DOT forms as well as on the EPA form.

The Customs Service headquarters office has recognized that there has been some confusion in the past, but has indicated to NHTSA that it intends to clarify this matter with its field offices. You should thus instruct your brokers to continue to indicate the vehicle's owner as the importer of record on the DOT importation declaration, Form HS-7 and the checklist of conformance operations, Form HS-189, if submitted.

With respect to CAFE reporting, section 501(9) of the Motor Vehicle Information and Cost Savings Act, (15 USC 1901, at 200l(9)) defines the term "manufacture" as meaning "... to produce or assemble in the customs territory of the United States, or to import" (emphasis added). Thus, under the Cost Savings Act, an importer is clearly a manufacturer for purposes of CAFE requirements. Section 502 of the Cost Savings Act (l5 USC 2002) requires all manufacturers to comply with the CAFE standards for their vehicles, and section 505 (l5 USC 2005) sets out CAFE reporting requirements for such manufacturers. (See also, 49 CFR /537.5). As with the National Traffic and Motor Vehicle Safety Act (15 USC 1391 et seq.), it is the importer of record, as shown on Form HS-7, who must comply with these reporting requirements. Your firm, however, may be required to report fuel economy data to EPA. See, 40 CFR //85.1510(f), 600.312-86.)

I hope you have found this information helpful.

Sincerely,

Stephen P. Wood Acting Chief Counsel

/ref:CSA d:6/22/89

ID: 18880.nhf

Mr. Jerad Adams
Sales and Purchasing Specialist
Moriden America, Inc.
915 Western Drive
Indianapolis, IN 46241

Dear Mr. Adams:

This responds to your letter concerning the test procedures in Federal Motor Vehicle Safety Standard No. 302, Flammability of Interior Materials. I apologize for the delay in my response.

You seek clarification of the flammability test procedure contained in S5.3(f) of Standard No. 302, which states:

Measure the time that it takes the flame to progress to a point 1 inches from the clamped end of the specimen. If the flame end does not reach the specified end point, time its progress to the point where flaming stops.

You ask how the National Highway Traffic Safety Administration (NHTSA) would determine that flaming has stopped.

You explain that when testing a specimen to Standard No. 302, you find that the flame on the leading edge of the fabric often burns out while the flame on the trailing edge of the fabric continues to burn. You believe that NHTSA would continue timing as long as we continue to see a burning flame, regardless of whether the flame is on the leading or trailing edge of the fabric. Your understanding is correct. We would continue timing until we no longer see any flame on the fabric.

If you have any questions, please contact Nicole Fradette at this address or by phone at (202) 366-2992.

Sincerely,
Frank Seales, Jr.
Chief Counsel
ref:302
d.2/25/99

ID: 1888y

The Honorable Fred Grandy
House of Representatives
Washington, DC 20515

Dear Mr. Grandy:

This is in reply to your recent letter to the Administrator Designate, Jerry Curry, on behalf of your constituent Daniel Weichmann, Jr., of Hampton. You enclosed a copy of Mr. Weichmann's letter to this agency with respect to headlamp covers which, regrettably, we have been remiss in answering. You asked that we review this matter and that you be provided a copy of our response. We are pleased to reply directly to you, with a copy to Mr. Weichmann so that he may be apprised immediately of our views.

Mr. Weichmann was advised by the Iowa Department of Transportation on October 10, 1988, that "The department specifically does not approve head lamp covers", because Iowa has adopted "Federal standards on equipment approval". Consequently, "If the headlamp covers in question meet the Federal Standards they would qualify under Iowa law." Thus, Mr. Weichmann asked us whether headlamp covers are approved by this agency.

Headlamp covers are not permissible as items of original motor vehicle equipment. Paragraph S7.7.5 of Federal Motor Vehicle Safety Standard No. l08 Lamps, Reflective Devices, and Associated Equipment, in pertinent part, states that when headlamps are operated they "shall not have any styling ornament or other feature, such as a translucent cover or grill, in front of the lens." Although Standard No. l08 was only recently amended to state this prohibition expressly (I enclose a copy of the amended standard), the prohibition has existed since January l968 through the incorporation by reference in Standard No. l08 of an SAE headlamp Standard, J580b, which contained the identical language. The safety reason for the prohibition is the reduced effectiveness of a headlamp beam when it must pass through an extra layer of glazing, particularly if that glazing is tinted, yellowed, or cracked, or if moisture has condensed on the inside of the cover. Thus, headlamp covers are also implicitly prohibited by paragraph S5.1.3 of Standard No. l08 which forbids the installation of optional original equipment that impairs the effectiveness of lighting equipment, such as headlamps, that are required by Standard No. l08.

The Iowa DOT's views are consistent with the provisions of the National Traffic and Motor Vehicle Safety Act which permit States to enact State motor vehicle safety standards applicable to new vehicles provided that they are identical to Federal ones covering the same aspect of performance. Although the Federal standards do not regulate operation of a vehicle after it is sold, and hence could not prohibit a vehicle owner in Iowa from installing headlamp covers and operating his vehicle with them, Iowa's enforcement of a headlamp cover prohibition for vehicles in use would be consistent with its prohibition of them as original vehicle equipment. However, we cannot interpret Iowa law, and reach no conclusion as to whether its statutes or regulations have that effect.

Should either you or Mr. Weichmann have further questions, we shall be pleased to answer them.

Sincerely,

Jeffrey R. Miller Acting Administrator Enclosure

cc: Daniel Weichmann, Jr.

The Honorable Fred Grandy Mason City IA / ref:l08 d:7/5/89

ID: 18890.jeg

Mr. Meyer Snyder
5134 Bocaw Pl
San Diego, CA 92115-1717

Dear Mr. Snyder:

This responds to your letter asking whether you can have the force of the air bags on your 1995 Toyota Camry "turned down." You asked whether this can be done at your Toyota dealer and, if not, where it could be done, and whether you would have to pay for this modification.

As discussed below, there is no legal impediment to vehicle manufacturers and dealers modifying older vehicles so that they have the same kinds of redesigned air bags being offered on most new vehicles. However, such modifications would likely be very complicated and potentially expensive, and we are not aware of any vehicle manufacturers or dealers which make such modifications. You may wish to ask Toyota about whether it is possible to modify your vehicle in this manner and at what cost.

By way of background information, the National Highway Traffic Safety Administration (NHTSA) is authorized to issue Federal motor vehicle safety standards that apply to the manufacture and sale of new motor vehicles and new motor vehicle equipment. One of the standards we have issued is Standard No. 208, Occupant Crash Protection (49 CFR 571.208). Manufacturers install air bags in passenger cars as part of complying with the occupant protection requirements of Standard No. 208.

While the Federal motor vehicle safety standards apply only to new motor vehicles and new motor vehicle equipment, Federal law limits the modifications that can be made by certain businesses to used vehicles. Manufacturers, distributors, dealers, and repair businesses are prohibited from "knowingly making inoperative" any device or element of a design installed on or in a motor vehicle in compliance with an applicable safety standard (49 U.S.C. 30122).

A manufacturer, dealer or other business which modified the air bags on your 1995 Toyota Camry would not violate the "make inoperative" provision if, after the modification, the vehicle continued to meet the relevant requirements in effect either on the date of manufacture or as later amended. In 1997 NHTSA amended Standard No. 208 to make it easier for manufacturers to quickly redesign their air bags, e.g., by reducing the power as compared to previous years. Compliance with the amended requirements would thus not violate the "make inoperative" provision. As noted earlier, however, the modifications that would need to be made to an existing vehicle so that it would have redesigned air bags would likely be very complicated and potentially expensive, and we are not aware of any vehicle manufacturers or dealers which make such modifications.

I am pleased to hear that you do not want your air bags turned off. The vast majority of persons, including short persons, are much safer with air bags. Among other things, an air bag will minimize the risk of violently striking the steering wheel and dashboard in a moderate to severe crash.

I would also like to point out that there are a few basic steps that you can take to minimize air bag risks, including wearing your safety belts and, when driving, keeping at least 10 inches between the center of the air bag cover and your breastbone. I have enclosed an information brochure, written in the context of making an informed decision about on-off switches, which provides additional information concerning how you can reduce air bag risks.

Sincerely,
Frank Seales, Jr.
Chief Counsel
Enclosure
ref:208
d.2/3/99

ID: 18891.wkm

Ms. Kristy Harren
R. M. Johnson Company, Inc.
890 Norway Drive
Post Office Box "J"
Annandale, MN 55302

Dear Ms. Harren:

Please pardon the delay in responding to your letter to Walter Myers of my staff in which you asked whether the E-Z Car Crusher and the E-Z Log Baler that your company produces are excluded from the antilock brake system (ABS) requirements of Federal Motor Vehicle Safety Standard (Standard) No. 121, Air brake systems. The answer is yes.

You enclosed descriptive brochures showing pictures of the car crusher and the log baler. You stated that axles are installed on these products as a base and as a mode of transporting them from the factory to the customer. You also stated that these units are designed to spend extended periods of time at off-road job sites, although customers will occasionally transport them from job site to job site. You referred to 49 U.S. Code (U.S.C.) 30102(a)(6), which defines the term "motor vehicle," in support of your assertion that your equipment is exempt from Standard No. 121 because the primary function of the units is not for use on public streets, roads, and highways. The units are towed to their job sites by a semi-tractor, then detached and left at the sites to perform their primary functions.

Chapter 301 of Title 49, U.S. C., hereinafter referred to as the Safety Act, authorizes this agency to establish Federal motor vehicle safety standards applicable to new motor vehicles and new items of motor vehicle equipment. You correctly cited 49 U.S.C. 30102(a)(6) as defining "motor vehicle," which is:

[A] vehicle driven or drawn by mechanical power and manufactured primarily for use on the public streets, roads, and highways, but does not include a vehicle operated only on a rail line.

In reviewing the information you provided, including the informational brochures enclosed with your letter, it is our opinion that the car crusher and the log baler you described and as depicted in the brochures are not motor vehicles within the statutory definition. They are designed to be used primarily off-road and although capable of being transported on-road from the factory to the customer and by the customer from one job site to another, their on-road use is only incidental to the primary purposes for which they were manufactured. This contrasts with instances in which vehicles such as dump trucks frequently use the public roads going to and from off-road job sites, but stay there for only a limited time. Such vehicles are considered motor vehicles for purposes of the Safety Act because their on-road use is more than merely "incidental."

In view of the above discussion, your car crusher and your log baler are not considered motor vehicles and are therefore not required to comply with the Federal motor vehicle safety standards, including the ABS requirements of Standard No. 121.

I hope this information is helpful to you. Should you have any questions or need further information, feel free to contact Mr. Myers at this address or at (202) 366-2992, or by fax at (202) 366-3820.

Sincerely,
Frank Seales, Jr.
Chief Counsel
ref:121
d.5/25/99