ID: nht94-8.41

DATE: January 26, 1994

FROM: John Womack -- Acting Chief Counsel, NHTSA

TO: Timothy McQuiston -- Vice-President Sales, California Dream

TITLE: None

ATTACHMT: Attached to letter dated 9/29/93 from Timothy McQuiston to Taylor Vinson (OCC-9176)

TEXT:

This is in reply to your letter of September 29, 1993, to Taylor Vinson of this Office. Your company provides an aftermarket spoiler which incorporates a center stop lamp "that complies with SAE standards." You have asked us for a statement that you could provide your dealers that "would affirm that when the dealer installs a spoiler containing a high mount third brakelight meeting/exceeding SAE standards, they are, in fact providing an equivalent light source, thereby allowing them (dealers) to remain in compliance with federal regulations." You have also enclosed a November 1992 report from ETL Testing Laboratories rendered to Leegold Enterprises Co., Ltd. covering the lamp that we assume to be the one you are offering in your spoiler.

Under the National Traffic and Motor Vehicle Safety Act (15 U.S.C. 1381 et seq.), in the fact situation you present, the dealer has the following obligations with respect to new and used vehicles. It is obliged to deliver a new vehicle to the buyer with a center highmounted stop lamp that is in full compliance with Federal Motor Vehicle Safety Standard No. 108, and if it does not, it may be in violation of section 108(a)(10(A) of the Act (15 U.S.C. 1397(a)(1)(A). With respect to a vehicle in use, under section 108(a)(2)(A) of the Act, it may not knowingly render inoperative, in whole or in part, the original center highmounted stop lamp unless it provides a conforming equivalent (agency interpretation of 15 U.S.C. 1397(a)(2)(A)).

Therefore, as a general principle, we affirm your understanding that a dealer may knowingly render an original equipment center highmounted stoplamp inoperative on a vehicle in use, or cause it on a new vehicle to become noncompliant with the requirements of Standard No. 108 if the dealer provides a substitute lamp that meets Standard No. 108's requirements. The test report you provided indicates that the Model LG 03-60B lamp that was tested meets requirements specified in Standard No. 108 and SAE Recommended Practice J186a, and that that particular lamp is an equivalent in performance to an original equipment light source.

Having said that, however, we feel that further comments are in order. The first comment is to clarify a misunderstanding reflected in your letter. The lamp must comply with Standard No. 108, and not with SAE specifications as you have stated. Although Table III of Standard No. 108 does incorporate by reference SAE Recommended Practice J186a, "Supplemental High Mounted Stop and Rear Turn Signal Lamps," September 1977, certain provisions of J186a, such as photometrics, do not apply because they have been modified by the text of Standard No. 108 itself. We are pleased to note that the summary of the test report appears to recognize this distinction.

Our second comment is that, in addition to the assurances that you as the spoiler manufacturer provide the dealer, both you and the dealer are afforded a degree of protection from violations of the Act if Leegold's lamp, in fact, fails to meet Standard No. 108. This is true whether the dealer installs the spoiler either as original equipment or as aftermarket equipment.

With respect to original equipment (i.e., installed before delivery of the vehicle to its first purchaser), Leegold, as the manufacturer of the lamp, is required by section 114 of the Act (15 U.S.C. 1403) to certify to its dealers and distributors that the lamp complies with Standard No. 108 (which may be signified by the symbol "DOT: on the lamp). If the lamp is later discovered to be noncompliant, those who have sold the lamp and any new vehicle on which it has been installed are in technical violation of the Act, but are protected by section 108(b)(1) of the Act from civil penalties, unless they have actual knowledge that the lamp does not meet Standard No. 108 (15 U.S.C. 1397(b)(1)).

With respect to a nonconforming lamp installed after the vehicle's first sale, the original lamp may have been disconnected or partially blocked by the aftermarket lamp, resulting in either case in a "rendering inoperative" of required equipment within the meaning of the prohibition. However, we would not view this as a "knowingly" rendering inoperative because the dealer's intent is to install a conforming lamp, as indicated by the lamp's certification.

One final comment, one directed more to Leegold than to you or your dealers. As a result of our experience over the years, we have come to realize the value of surveillance testing of production lamps to assure that the lamps continue to comply with Federal requirements. Periodic testing may be regarded as evidence of the manufacturer's exercise of due care in the event of noncompliances. If the November 1992 ETL test is of a prototype lamp, Leegold may wish to have new tests conducted on production lamps. Even if that test were of production lamps, sufficient time has elapsed, in our view, for Leegold to conduct a new test, to ensure that design tolerances have been maintained in production and that the lamp continues to conform to Standard No. 108.

ID: nht94-8.42

DATE: January 26, 1994

FROM: John Womack -- Acting Chief Counsel, NHTSA

TO: Ramin Bogzaran -- General Manager, Remedquip International Manufacturing, Inc.

TITLE: None

ATTACHMT: Attached to letter dated 12/1/93 from Ramin Bogzaran to John Womack; Also attached to fax dated 12/15/93 from Ramin Bogzaran to Marvin Shaw; Also attached to letter dated 11/15/93 from Amar Chhabra to whom it may concern; Also attached to letter dated 11/30/93 from Lynn White to Jeff Boraston

TEXT:

This responds to your letter of December 1, 1993, in which you asked whether two trailers on which are mounted specialized equipment would be classified as motor vehicles. We are sorry we were unable to respond by your requested date of December 14, 1993.

You stated that the trailers in question were manufactured in Greenville, TN in 1991 and Shipped to a company in Canada which is no longer in business. A transportable soil remediation plant was mounted on the trailers, but they have not been used or moved since their delivery. You stated that you now expect to import the trailers with their mounted equipment into the U.S. for use as a transportable soil remediation plant. You stated that the trailers will not be registered and will be moved only with permits because the anticipated projects for the equipment are long term and "the trailers will hardly see the road in their lifetime." You stated that the trailers will be inspected before they are moved to assure their safety, and that you will assure the safety of the equipment on the road while transporting it from Vancouver, Canada to your shop in San Diego, CA. You enclosed with your letter a certificate of origin, pictures of the trailers with the equipment mounted thereon, a letter from the company that originally purchased the trailers, and a letter from the manufacturer of the trailers.

By way of background information, the National Traffic and Motor Vehicle Safety Act of 1966, 15 U.S. Code S1381 to S1431, as amended (Safety Act), authorizes the National Highway Traffic Safety Administration (NHTSA) to issue Federal Motor Vehicle Safety Standards applicable to new motor vehicles or new items of motor vehicle equipment manufactured or imported for sale in the U.S. The term "motor vehicle" is defined in the Safety Act as:

(A)ny vehicle driven or drawn by mechanical power manufactured primarily for use on the public streets, roads, and highways, except any vehicle operated exclusively on a rail or rails.

NHTSA has interpreted that language as follows. Vehicles that are equipped with tracks or that are otherwise incapable of highway travel are clearly not motor vehicles. In addition, vehicles designed and sold solely for off-road use, such as airport runway vehicles and underground mining devices, are not considered motor vehicles, even though they may be operationally capable of highway travel. Vehicles that have an abnormal body configuration that readily distinguishes them from other highway vehicles and that have a maximum speed of 20 miles per hour are not considered motor vehicles, nor is equipment that uses the highways solely to move between job sites and which typically spends

extended periods of time at a single job site. Those vehicles or equipment are not considered motor vehicles because their intended use of the public roads is intermittent and incidental to their primary off-road use.

Based on your representations that your trailers will be utilized on long-term off-road projects, they would not be classified as motor vehicles. Therefore, they would not be subject to the U.S. Federal motor vehicle safety standards nor the import requirements of 49 CFR 591.5. That determination, however, does not mean that the trailers would necessarily be exempt from state motor vehicle requirements, especially the states through which you intend to transport the equipment from Vancouver to San Diego. For information on state laws in that regard, you may contact the American Association of Motor Vehicle Administrators, 4200 Wilson Boulevard, Suite 600, Arlington, VA 22204, (703) 522-4200.

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.

ID: nht94-8.43

DATE: January 25, 1994

FROM: John Womack -- Acting Chief Counsel, NHTSA

TO: Lawrence F. Henneberger -- Arent Fox Kintner Plotkin & Kahn

TITLE: None

ATTACHMT: Attached to letter dated 9/20/93 from Lawrence F. Henneberger to John G. Womack (OCC 9115)

TEXT:

This responds to your letter in which you request an interpretation of Federal Motor Vehicle Safety Standard (FMVSS) 105, Hydraulic Brake Systems, on behalf of your client, MICO, Inc. I apologize for the delay in our response. You ask that the agency give you an interpretation that FMVSS 105 does not preclude the installation of MICO's product, an auxiliary hydraulic brake lock, under the circumstances you have described.

As you note in your letter, NHTSA does not provide approvals of motor vehicles or motor vehicle equipment. Under the National Traffic and Motor Vehicle Safety Act, it is the responsibility of the manufacturer to ensure that its vehicles or equipment comply with applicable safety standards. The following represents our opinion based on the facts provided in your letter.

According to your letter, MICO's auxiliary hydraulic brake lock operates as follows. The device permits hydraulic system fluid to pass from the master cylinder to the brakes when the brake pedal is applied, thereby increasing hydraulic brake pressure. The device then blocks the return of the hydraulic fluid to the master cylinder when pressure is removed from the brake pedal. The device is not designed to be used when the vehicle is in motion, but only when the vehicle has been brought to a full stop, and the mechanical parking brake applied. At that point, the vehicle operator activates the auxiliary brake lock by means of a separate control switch. The device is deactivated prior to moving the vehicle.

FMVSS 105 specifies requirements for hydraulic brake service brake and associated parking brake systems. The standard applies to vehicles with hydraulic service brake systems. In the case of an auxiliary hydraulic brake lock, there is no applicable standard for it as a separate item of motor vehicle equipment. However, since installation of the device requires cutting into a vehicle's braking system, it may affect a vehicle's compliance with safety standards.

If MICO's auxiliary brake lock is installed as original equipment on new vehicles, the vehicle manufacturer would be required to certify that the entire brake system satisfies the requirements of FMVSS 105. If the device is added to a new motor vehicle prior to its first sale, 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. In particular, the vehicle would need to continue to comply with FMVSS 105.

MICO, as the manufacturer of the device, would have no certification responsibilities. However, a vehicle manufacturer or alterer might require

information from MICO in order to make its necessary certification. Much of the information that you provided to us in your request for an interpretation might be useful in this regard.

Should the auxiliary brake lock be installed on a used vehicle by a manufacturer, distributor, dealer, or motor vehicle repair business, the installer would not have to attach a certification label. However, it would have to make sure that it did not knowingly render inoperative the compliance of the vehicle with any safety standard.

I note that while we do not have any opinion about the safety of MICO's product, it is our understanding that certain vehicle manufacturers have stated that hydraulic brake locking devices should not be used on their vehicles. I enclose an example from a GMC service bulletin. MICO may wish to consult with these manufacturers concerning whether the use of its product in these vehicles would raise any safety concerns.

Enclosed is an information sheet which identifies Federal statues and NHTSA standards and regulations affecting motor vehicle and motor vehicle equipment manufacturers. I note that the Safety Acts's provisions concerning defects are applicable to motor vehicle equipment manufacturers even if their equipment is not covered by a safety standard.

I hope this information has been helpful. If you have any further questions, please contact David Elias of my office at the above address or at (202) 366- 2992.

ID: nht94-8.44

DATE: January 25, 1994

FROM: Eldon J. McLauchlin -- President, Valley Automotive Specialties, Inc.

TO: John Womack -- Acting Chief Counsel of NHTSA

TITLE: Certification Opinion

ATTACHMT: Attached to letter dated 4/12/94 to Eldon J. McLauchlin from John Womack (A42; VSA 102(4))

TEXT:

I contacted your office on 1/24/94 regarding information on certification pertaining to a product I have developed. I was advised by an associate of yours' to write you a letter explaining the purpose of the product and a brief description of it's uses and how it operates.

The product is an Automated Fire Extinguisher System. The AFES can be used on automobiles, trucks, boats, RV's, and buses. We will also be modifying the existing proto-type so that it can be installed in homes and commercial buildings.

The purpose of this product is to enable the operator/occupant of vehicles or buildings to exit safely in the event of a fire. The automation of the control valve will activate the extinguisher even if the operator/occupant is not able to due to unconsciousness or other circumstances beyond their control. This product will allow sufficient time for the operator/occupant to escape or be extracted from the vehicle or building.

The AFES will operate on a 12 volt system, most commonly found on all types of motor vehicles, boats, etc. The AFES will also operate on a 110 volt system, common in all homes and buildings. Activation will be accomplished through smoke and heat sensors, a valve and manifold assembly with strategically placed directional nozzles. The number of directional nozzles required will depend on the size of the vehicle or building that has the AFES installed. Once the AFES is installed it will stay maintainable and can be recharged.

In closing, if it is your opinion that this lifesaving system needs to be certified by the appropriate agency(s) or if you need further information in order to determine your opinion, please contact me. I would greatly appreciate it if you could make available to me the information I will need to accomplish the certification if you decide it is necessary. Thank you for your time and consideration.

ID: nht94-8.45

DATE: January 24, 1994

FROM: John Womack -- Acting Chief Counsel, NHTSA

TO: Jerome Cysewski

TITLE: None

ATTACHMT: Attached to letter dated 10/20/93 from Jerome Cysewski to NHTSA Office of Chief Counsel (OCC-9250)

TEXT:

This responds to your letter asking about the applicability of Federal requirements to two vehicles. I apologize for the delay in our response. According to your letter, one vehicle is a 13,600 pound cement silo that has tandem axles. The second vehicle is a 6,400 pound aggregate batch plant that has a single axle. The cement silo and batch plant are mounted on their own trailers, and are equipped with electric brakes. Each vehicle is pulled by a one ton truck with hydraulic brakes. You also stated that both vehicles are mobile but are designed to be towed for off-the-road set and positioning. I am pleased to have this opportunity to explain our regulations to you.

By way of background information, this agency, the National Highway Traffic Safety Administration (NHTSA), issues Federal motor vehicle safety standards under the National Traffic and Motor Vehicle Safety Act (Safety Act). The Safety Act defines the term "motor vehicle" as follows:

"any vehicle driven or drawn by mechanical power manufactured primarily for use on the public streets, roads, and highways, except any vehicle operated exclusively on a rail or rails." (Section 102(3))

If a vehicle is a motor vehicle under the definition, then the vehicle must comply with all applicable Federal motor vehicle safety standards. However, if a vehicle is not a motor vehicle under this definition, then the vehicle need not comply with the agency's safety standards because such a vehicle is outside the agency's scope of authority.

Whether NHTSA considers a construction vehicle, or similar equipment, to be a motor vehicle depends on the use for which it is manufactured. It is the agency's position that this statutory definition does not 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 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 Safety Act, since the on-highway use is more than "incidental."

Your letter does not provide sufficient information for us to determine the extent to which the two vehicles would use the public roads. Nor can we determine whether the on-highway use of the vehicles would be merely incidental and not the primary purpose for which they are manufactured.

However, you should be able to determine whether the vehicles are considered motor vehicles based on the information set forth above.

If the vehicles are considered motor vehicles under the Safety Act, they would be required to meet all safety standards applicable to trailers. Enclosed is an information sheet which identifies Federal statutes and NHTSA standards and regulations affecting motor vehicle and motor vehicle equipment manufacturers.

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

ID: nht94-8.46

DATE: January 21, 1994

FROM: John Womack -- Acting Chief Counsel, NHTSA

TO: Terry Karas -- T. K. Auto Inc.

TITLE: None

ATTACHMT: Attached to letter dated 11/5/93 from Terry Karas to John Womack

TEXT:

This responds to your FAX of November 5, 1993.

You have asked whether a Canadian car that was accompanied by a Canadian manufacturer's letter stating that the vehicle complies with U.S. safety standards can be imported as a conforming vehicle under Box 2.

Box 2 on the HS-7 importation form is the importer's declaration under 49 CFR 591.5(b) that the motor vehicle to be imported complies with all applicable U.S. Federal motor vehicle safety standards, and bears a certification label or tag to that effect, affixed by the original manufacturer of the vehicle. Because some Canadian vehicles may be virtually identical to those manufactured in the United States, and hence may comply with U.S. safety standards even if not bearing a specific certification to U.S. safety standards, the National Highway Traffic Safety Administration has accepted, in lieu of specific certification to U.S. safety standards, a letter from the Canadian manufacturer stating that the vehicle to be imported was manufactured to comply with the U.S. safety standards.

If a manufacturer's compliance letter accompanies a vehicle manufactured for sale in Canada at the time such vehicle is offered for importation into the United States, the vehicle may be entered under Box 2 as a conforming vehicle, without the intervention of a registered importer or the issuance of a bond. However, the manufacturer's compliance letter must contain the VIN of the specific vehicle that is to be imported, and an unqualified statement that the vehicle, as manufactured, complied with all applicable U.S. Federal motor vehicle safety standards.

Customs will then forward the HS-7 form and manufacturer's letter to this agency. However, if customs wishes us to review the manufacturer's letter, it is the prerogative of Customs to defer entry of the vehicle until it has received our views as to whether entry under Box 2 is appropriate.

You have also asked whether it makes "a difference if it is being imported for commercial or private purposes." Any Canadian vehicle that is accompanied by an acceptable manufacturer's letter of compliance is eligible for entry as a conforming vehicle under Box 2, regardless of whether the intent of importation is the commercial sale of the vehicle, or the retention of the vehicle for private use. However, if the letter is not an acceptable statement of compliance and the importation is for commercial purposes, the vehicle may only be imported under bond by a registered importer who must satisfy NHTSA that the vehicle complies, or has been brought into compliance, with the U.S. safety standards. Even though the registered importer's compliance work may be minimal, it is important to remember that the registered importer is also the person

responsible by statute for implementing notification and remedy campaigns in the event that noncompliances of the original manufacturer or safety related defects are discovered in the Canadian vehicle.

ID: nht94-8.47

DATE: January 21, 1994

FROM: John Womack -- Acting Chief Counsel, NHTSA

TO: Lloyd Boshaw -- M&L Auto Trim

TITLE: None

ATTACHMT: Attached to letter dated 8/31/90 from Paul Jackson Rice to David Holscher and letter dated 12/28/93 from Lloyd Boshaw to John Womack (OCC-9512)

TEXT:

We have received your letter of January 28, 1993, asking whether you must disconnect an original equipment center highmounted stop lamp when you add an aftermarket spoiler to the deck lid that incorporates such a lamp.

I enclose a copy of an interpretive letter we sent David Holscher on August 31, 1990, which remains our position today. In brief, a spoiler lamp will supersede the original equipment center lamp. When the spoiler is installed, Federal law does not dictate whether the original lamp must be disconnected or remain usable. That question is answerable under State law, and we suggest that you consult the Department of California Highway Patrol for its views. If California has no regulation bearing on this problem, we assume that you may either disconnect the original lamp or leave it connected, as your customers desire.

ID: nht94-8.48

DATE: January 21, 1994

FROM: John Womack -- Acting Chief Counsel, NHTSA

TO: Kathy Rose -- Account Directive, FitzGerald Corporation

TITLE: None

ATTACHMT: Attached to letter dated 10/12/93 from Kathy Rose to Glen Beck (OCC 9528)

TEXT:

Your letter of October 12, 1993, to the office of Motor Carriers in Sacramento, has reached us for reply. Your company produces a "trailer skirting" for van trailers, and some of your customers have asked "whether it is legal to have the retroreflective tape (which is required by Motor Vehicle Safety Standard No. 108) to be applied to the length of the trailer be placed below the trailer, on the trailer skirting."

The letter does not indicate whether the skirting is intended as original or aftermarket equipment. If the skirting is original equipment that is added to the trailer at the time of its manufacture and intended to remain there for the life of the trailer, the conspicuity treatment required by the standard may be affixed to it, provided that it is mounted as near as practicable within a range that is not less than 375mm and not more than 1525mm (approximately 15 to 60 inches) above the road surface. Under that condition, the portion of the trailer side that is above the skirting need not be equipped with the conspicuity treatment. If the skirting is aftermarket equipment, there is no requirement or restriction relating to conspicuity treatment of the skirting. We assume that the trailer to which it will be attached, if manufactured on or after December 1, 1993, will bear conspicuity markings in accordance with the standard.

ID: nht94-8.49

DATE: January 21, 1994

FROM: Allan Garman -- M.F. Bank & Co., Inc., Denver Branch

TO: Walt Myers -- NHTSA Office of Chief Counsel, Rulemaking Division

TITLE: None

ATTACHMT: Attached To Letter Dated 5/31/94 From John Womack To Allan Garman (A42; Std. 213; VSA 108(a)(1)(A)

TEXT: Total number of pages INCLUDING THIS COVER PAGE: 5

Mr. Myers:

As a followup to our telephone conversation this afternoon regarding the saleability of 287 baby car seats being transported inside a tractor-trailer which was involved in an accident, my 4-pg. "File Report" to the Insurance Adjuster follows for your review.

Although the "File Report" contains some information which will be of minimal interest to you, I felt it best if I provided you with all the information I have.

Please respond by answering the following questions:

1) Is there law in effect which would prohibit us from selling the involved car seats as salvage due to the fact that they were involved in a transit accident?

2) Assuming the subject car seats complied with all federal safety regulations and guidelines prior to being involved in this truck accident, are there any other laws, rules, regulations, guidelines, or recommended practices under the NHTSA's jurisdiction which we should consider before offering these car seats for eventual sale to the public?

3) Can we arrange to have an NHTSA representative from the local Denver office inspect these car seats at our warehouse and render an opinion as to whether they comply with all applicable federal safety standards?

My most sincere thanks to you for researching this matter for us. I look forward to your response.

Please find my address, telephone number, and fax number on the "File Report" letterhead.

(ATTACHMENT OMITTED)

ID: nht94-8.5

DATE: February 22, 1994

FROM: Robin L. Fennimore, Spectrum Engineering Group

TO: Office of Chief Council, NHTSA

TITLE: School Bus Safety Standards Our File: 94057

ATTACHMT: Attached to letter dated 6/28/94 from John Womack to Spectrum Engineering Group (A42; STD 206; FMVSS 217)

TEXT: We are currently reconstructing a motor vehicle accident involving a 16-passenger, mini school bus. As a result of this investigation, several questions have risen concerning design modifications performed on the right front entrance door of the vehicle; specifically, whether they are controlled by and in compliance with any and all applicable FMVSS. We would appreciate your assistance in resolving these concerns.

A 1988 Ford Econoline Cargo Van was purchased as an incomplete vehicle and later fitted with a school bus body by Midbus of Lima, Ohio. A copy of the van's I.D. plate and a Mid Bus brochure is enclosed for your reference. This vehicle was outfitted with a remote door opening/closing apparatus and latching mechanism, although maintained the original Ford van door. The O.E.M Ford latch/hinge mechanism was disabled by removing the striker plate.

On January 13, 1989, the operator of the bus lost control of the vehicle, striking both a tree and a utility pole. The collision allegedly caused the operator to be ejected from the vehicle through the right front passenger door.

Given this information, would you please respond to the following questions:

1) Would this vehicle be classified as a "multi-purpose passenger vehicle", a "bus" or a "school bus"?

5

2) Does FMVSS 206 and/or FMVSS 217 apply to the right front entrance door of this vehicle?

3) Which FMVSS would apply to the right front entrance door, (particularly its loading requirements)? Can you provide copies of the versions of these documents effective in 1988?

4) Can you please provide copies of the 1988 FMVSS 206 and 217?

If you have any questions or concerns, please do not hesitate to contact me at (203) 272-1111.

If there are any fees associated with this request, we will be happy to reimburse your office.