AIR MAIL

Mr. Richard King
Manager/Director
Wheel Lighting Devices, Ltd.
Downs Road South Brydone R.D. 4
Gore, New Zealand

FAX: 64 3 2066786

Dear Mr. King:

This is letter will supplement our letter of April 12, 2001, on the legality of HubLites under the laws administered by the U.S. Department of Transportation.

In that letter, we informed you that we considered HubLites to be similar to a device that we had previously reviewed and which we had concluded could possibly impair the effectiveness of lighting equipment required by Federal Motor Vehicle Safety Standard No. 108, Lamps, Reflective Devices and Associated Equipment (letter of March 15, 1989, to Byung M. Soh). That device was a self-lighting hub cap which included a motion-activated LED light whose intensity varied according to the speed of the vehicle. HubLites appeared to be similar in color and location to the Soh system, though without varying intensity.

On April 25, you e-mailed Taylor Vinson of this Office asking that we review our interpretation, and, in response to our question, explained in your e-mail of April 30, 2001, that HubLites "are self-illuminating hubcaps . . . and revolve at a fixed diameter with the hubs and wheels of the vehicle." We found that we needed further information, and you responded on June 21, 2001, providing, for the first time, several photographs of HubLites installed and in operation. Later you explained that what appeared to be an interrupted ring of light in one of the photos was due to the way the wheel was photographed and that, in fact, the system produces a continuous ring of light.

You have called to our attention our letter of June 29, 1994, to R.H. Goble in which we concluded that the wheel well lighting system he described "would not appear to have the potential of confusion." In your view, HubLites is essentially not different from the Goble system in its function.

We have reviewed our earlier letter to you, and the Soh and Goble interpretations. The Goble system consisted of small lights mounted at the top of the wheel well. These lights were intended to supplement existing turn signal, clearance, stop, and hazard warning signal lamps, and to operate in conjunction with them to convey the same message. The small lamps at the top of the wheel well flash when the turn signal and hazard warning signal lamps operate, and are steady burning when the clearance and stop lamps are activated. When these lamps are inoperative, the wheel well lamps do not illuminate.

There is no such supplementary intent with either the Soh system or HubLites. Their function is purely ornamental. The pictures you provided show that HubLites consist of several small lights midway on the hub of the wheel. At night, these appear to provide a ring of light on both the front and back wheels. We believe that this novelty has the potential to distract drivers approaching the vehicle from the side and from some other angles, so that they would not immediately perceive the signal and marker lamps that are required under U.S. Federal law. Thus, we must confirm our original interpretation to you.

Please note that the agency is growing increasingly conservative in its views about the permissibility under Federal law of novelty lighting items which have no discernable safety benefit, given the possibility of these devices causing confusion to drivers and distracting them from the safety messages sent by required lighting equipment.

I am sorry that we are not able to help you further.

Sincerely,

John Womack
Acting Chief Counsel

Ref:108
d.7/5/01

Mr. Larry Dornbusch
22 West 131^st Glen Park Road
Glen Ellyn, IL 60137

Dear Mr. Dornbusch:

This responds to your inquiry asking whether a company modifying a used two-wheeled motorcycle into a three-wheeled motorcycle is required to ensure, pursuant to Standard No. 122, Motorcycle Brake Systems, that each of the three wheels has a brake, and that the three-wheeled motorcycle has a parking brake. As discussed below, the answer is no.

I note that your communication to us was supplemented with a telephone conversation with Dorothy Nakama of my staff. As background for your question, you told Ms. Nakama that you originally bought a two-wheeled motorcycle and registered the motorcycle in the State of Illinois. Subsequently, you sent the motorcycle out-of-state to a company to be converted to a three-wheeled motorcycle (trike). When you got your trike back, you discovered that "the two rear wheels were braked by one rotor and caliper on the differential rather than the wheels. "You expressed to Ms. Nakama your understanding that Standard No. 122 requires a brake for each of the three wheels.

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. 122, which applies to motorcycles. Standard No. 122 specifies performance requirements for motorcycle brake systems.

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 design installed on or in a motor vehicle in compliance with an applicable safety standard (49 U.S.C. ' 30122).

The manufacturer of your motorcycle presumably manufactured a new motorcycle that met all applicable Federal motor vehicle safety standards. Under the "make inoperative" provision cited earlier, the company that modified your used motorcycle was required to ensure that the various changes it made did not make inoperative any device or element of design installed on or in the motorcycle in accordance with Standard No. 122 or any other Federal motor vehicle safety standard.

As to your question concerning whether each wheel of a three-wheeled motorcycle must have a brake, Standard No. 122 establishes the following requirements for motorcycle brakes at S5.1, Required equipment-split service brake system: "Each motorcycle shall have either a split service brake system or two independently actuated brake systems." Nothing in the standard requires all three wheels of a three-wheeled motorcycle to have a brake.

You also noted that after the modifications, the three-wheeled motorcycle did not have a parking brake. Standard No. 122 at S5.1.4 Parking brake, states: "Each three-wheeled motorcycle shall be equipped with a parking brake of a friction type with a solely mechanical means to retain engagement."

As earlier stated, Standard No. 122 applies to new motor vehicles. If your motorcycle were manufactured new with three wheels, or converted prior to first retail sale, S5.1.4's parking brake requirement would have applied. However, in the case at issue, a parking brake was not required for your motorcycle when it was new, since it was a two-wheeled motorcycle. Moreover, the make inoperative provision would not have the effect of requiring a company modifying a used two-wheeled motorcycle into a three-wheeled motorcycle to add a parking brake.

You also ask whether 49 CFR Section 393.42 Brakes required on all wheels, applies to the way your motorcycle was converted. We are unable to provide an answer to this question because Section 393.42 is not administered by NHTSA, but by the Federal Motor Carrier Safety Administration (FMCSA), another agency of the U.S. Department of Transportation. I therefore suggest you refer your question about Section 393 to the FMCSA for an answer.

I also note that the individual states may regulate modifications to used motorcycles.

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,

John Womack
Acting Chief Counsel

ref:122
d.9/20/01

Mr. James Haydn
Koito Europe Ltd.
Kingswood Road
Hampton Lovett Industrial Estate
Droitwich Spa
Worcestershire WR9 0QH
England

Dear Mr. Haydn:

This is in reply to your e-mail of February 13, 2001, to Richard Van Iderstine of this agency. You have asked whether a new headlamp design complies with the specifications of Federal Motor Vehicle Safety Standard No. 108, Lamps, Reflective Devices and Associated Equipment.

The headlamp has a "Bi-xenon unit that produces the low and high beams together with a separate high beam in the same assembly." You understand that you "can only have the Bi-xenon unit for the photometric performance, therefore my questions are, for the separate high beam." You have asked whether you are correct in assuming that the separate upper beam cannot be used under Standard No. 108.

No, your assumption is incorrect. Standard No. 108 permits the upper beam of a headlamp to be provided by two light sources and thus does not prohibit use of your design. However, regardless whether the upper beam is provided by one or two light sources, the maximum intensity limits for upper beams at test points H-V and 4D-V must not be exceeded. These values appear in the photometric Figures that Standard No. 108 has adopted for various types of headlighting systems.

Sincerely,

John Womack
Acting Chief Counsel
ref:108
d.4/10/01

Mr. Robert L. Cumpstone
Manager of Motor Transport Services
Bureau of Public Transportation
State of Connecticut
Department of Transportation
2800 Berlin Turnpike, P.O. Box 317546
Newington, CT 06131-7546

Dear Mr. Cumpstone:

This responds to your letter asking whether a Connecticut requirement for four emergency exits per side for a bus operating in that State is preempted by Federal Motor Vehicle Safety Standard (FMVSS) No. 217, Bus emergency exits and window retention and release. As explained below, the answer is yes. Connecticut may not refuse to register buses that comply with FMVSS No. 217 on the basis of the State's push out window requirement.

You wrote to us after a private business tried to register a new 56-passenger touring bus in your State. Apparently, the bus did not pass a State inspection. In your letter, you stated that the bus did not pass inspection because the

... motor bus type vehicle manufacturer has changed the configuration of its vehicles, which eliminates the number of push out windows to less than the number required by the end user for a vehicle to be placed in motor bus service under our user requirements.

Specifically, you provided a copy of the Connecticut "user standard that applies to our regulated motor bus operators," which states in part:

All buses equipped with push-out windows and no emergency door ... and seating over thirty-seven adult passengers shall have at least four such windows on each side.

As you note, this "user standard" is not identical to the emergency exit requirements for buses established by FMVSS No. 217. The issue therefore is whether the State safety standard for four windows on each side of a new bus (seating more than 37 passengers) is consistent with Federal law. Under 49 U.S.C. Section 30103(b), Preemption:

(1) When a motor vehicle safety standard is in effect under this chapter [49 U.S.C. Sections 30101 et seq.], a State or a political subdivision of a State may prescribe or continue in effect a standard applicable to the same aspect of performance of a motor vehicle or motor vehicle equipment only if the standard is identical to the standard prescribed under this chapter ....

There is a "motor vehicle safety standard in effect under this chapter" that is "applicable to the same aspect of performance of a motor vehicle" as the State law, namely FMVSS No. 217. That standard establishes requirements applicable to the same aspect of safety performance; i.e., bus emergency exits.

Unlike the State requirement, FMVSS No. 217 does not specify a number of emergency window exits. Paragraph S5.2.2.1 of the standard specifies that non-school buses shall provide unobstructed openings for emergency exits which collectively amount, in total square centimeters, to at least 432 times the number of designated seating positions on the bus. At least 40 percent of the total required area of unobstructed openings, computed in the above manner, shall be provided on each side of a bus. In determining the total unobstructed openings provided by a bus, no emergency exit, regardless of its area, shall be credited with more than 3,458 square centimeters of the total area requirement.

NHTSA safety standards apply to the manufacture and sale of new motor vehicles and motor vehicle equipment. (49 U.S.C. 30112.) Thus, pursuant to 49 U.S.C. 30103(b), Connecticut could not establish a bus exit requirement not identical to that in FMVSS No. 217 that would apply to the manufacture or sale of new buses in Connecticut.

However, NHTSA does not regulate the operation (i.e., use) of motor vehicles, which is generally under the jurisdiction of the States. Connecticut is not required to impose operational requirements that are "identical" to the FMVSS. Nonetheless, there are limits on State operation requirements, in that general principles of preemption law apply. These principles preclude States from adopting operational requirements that are more stringent than the requirements applicable to new vehicles under the FMVSS, because more stringent State requirements would have the effect of precluding the use of a Federally compliant vehicle in that State. ⁽¹⁾ Thus, Connecticut may not refuse to register or allow the operation of buses that comply with FMVSS No. 217 on the basis of the state's more stringent push out window requirement.

This conclusion is not inconsistent with the statements made in my November 18, 1996 letter to Ms. Betsy Dittemore of the Iowa Department of Public Safety. That letter addressed an Iowa operating restriction, with respect to the light transmittance of vehicle windows, that was less stringent than the Federal requirement. Unlike the letter to Dittemore, the Connecticut user

standard is more stringent than the FMVSS. The more stringent Connecticut user standard conflicts with and frustrates the scheme of Federal law because it prevents the use of vehicles that comply with the FMVSS.

I apologize for the delay in responding to your letter. If you have any further questions, please contact Dorothy Nakama of my staff at this address or at (202) 366-2992.

Sincerely,

John Womack
Acting Chief Counsel

ref:217
d.11/01/01

¹

However, these principles do not apply to a vehicle (such as a school bus) procured by a State or local governmental jurisdiction for its own use.

Mr. Jeffrey D. Gonneville
Senior Project Technical Manager
Massachusetts Bay Transportation Authority
80 Broadway
Everett, MA 02149

Dear Mr. Gonneville:

This is in reply to your recent letter concerning the requirements of Standard No. 121, Air brake systems, as they apply to large passenger buses equipped with a liquid crystal display (LCD) information panel. Your letter describes the LCD panel as a microprocessor controlled programmable display having the ability to display a number of conditions in the vehicle, including the air pressure present in the primary and secondary brake systems. You further state that the LCD display would be programmed so the default mode would be to show the primary and secondary brake system pressure. However, in the event that a malfunction or abnormal condition is detected by the vehicle's monitoring system, a message or warning would be displayed on the LCD in place of the brake pressure gauges until the vehicle operator acknowledges the fault and resets the display. Once the display is reset, the LCD will again go to the default mode and display the primary and secondary brake system pressure. In addition to the LCD, you describe the buses as having a traditional warning light and buzzer that will activate in the case of low brake system air pressure.

I am happy to have this opportunity to discuss the role of the National Highway Traffic Safety Administration (NHTSA) in this matter. Under its statutory authority to issue Federal motor vehicle safety standards applicable to motor vehicles and motor vehicle equipment, NHTSA issued Standard No. 121, "Air brake systems," which specifies minimum performance requirements for trucks, buses, and trailers equipped with air brake systems. Among other things, Standard No. 121 requires that vehicles be equipped with a pressure gauge for each service brake system (S5.1.4) and a warning device that gives continuous warning to a driver when the ignition is in the "on" or "run" position and the service reservoir system pressure is below 60 psi (S5.1.5).

The requirements for pressure gauges are found in S5.1.4 of Standard No. 121. Paragraph S5.1.4 requires a pressure gauge to be "readily visible" to a person seated in the normal driving position. It is the agency's position that in the context of Standard No. 121, "readily visible" means visible whenever the driver wants to see it. It does not mean that the air pressure level should be continuously visible. As we understand your system, the air pressure gauges will be "readily visible" unless a fault indicator or warning message appeared on the LCD. If this occurs, the driver could determine the air pressure at any time by pushing the "reset" button. We have concluded that this operation satisfies S5.1.4 and that your system would be permissible under that section.

A low pressure warning signal is required by paragraph S5.1.5 and must be separate from the pressure gauge. You state that the buses will have a separate warning light and an audible alarm. This would appear to conform to S5.1.5.

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

Sincerely,

John Womack,
Acting Chief Counsel

ref:121
d.7/16/01

Mr. Don H. Strobel
Managing Partner
Exciting Lighting, LLC
P.O. Box 206
Watson, LA 70786

Dear Mr. Strobel:

This is in reply to your letter of February 9, 2001, asking for confirmation that "the light rails (Big Boyz Flashers) for pick up trucks and tow trucks" that your company manufactures "are acceptable . . . as being in conformance with the Federal Motor Vehicle Safety Standard No. 108 Lamps, Reflective Devices and Associated Equipment."

The light rails were most recently discussed in former Chief Counsel Seales' letter of December 23, 1998, to Robert Currie of your company (we appreciate your attaching a copy of it for our ready reference). Mr. Seales advised that the operation of the system was not totally in accord with Standard No. 108's requirements, but would be acceptable if it operated 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 Flashers. 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.

You have informed us that:

The electrical circuit used now for a truck with a combination red stop/directional lamp will flash the rail on the directional side red/off with the OEM red/off brake/turn signal. The circuit used now for a truck with a separate amber turn signal will flash the rail on the signaled side yellow/off with the amber turn signal and when the brake is applied, will flash the rail red/off.

We were not quite sure how to interpret this and Taylor Vinson of this Office phoned you on March 26, 2001, for a clarification. You explained how the device works: when the turn signals

are activated, the light rails also flash an amber color. If the brake pedal is applied at any time while the turn signal is on, the light rails continue to flash but in the color red.

In this situation, when the rear turn signal lamp is red, it will be overriden by the stop lamp and the light rail will continue to flash red. When the rear turn signal lamp is amber, it will continue to flash when the stop lamp is applied, but the flashing light rail will have changed from amber to red. In the flashing mode, the light rails are serving as supplementary turn signal lamps. The question is whether Standard No. 108 permits supplementary turn signal lamps to be a different color than the original equipment turn signals, e.g. whether different colors flashing simultaneously can be viewed as creating an impairment. Because Standard No. 108 permits rear turn signals to be either red or amber, we consider it unlikely that red and amber turn signals flashing simultaneously will have an impairing effect on other rear lighting equipment.

In our previous letter, we commented on the yellow "strobe beacon" which would be installed on tow trucks. A feature of the system at that time was that, if the brake is applied when the yellow strobe beacon is activated, the light rails would alternate between a strobe pulse in yellow and a red steady-burning state. We advised that we believed that an alternatively flashing yellow/red has the potential to confuse motorists. You have informed us that "the light rails for tow trucks that use a halogen lamp and a strobe lamp have been set up so that the rails run yellow with the halogen." You clarified this by explaining to Taylor Vinson that tow trucks will be equipped with light rails of amber color only, and they will flash during turns. However, when the load has been attached to the tow truck, the driver can then activate the light rails in a strobe mode, as permitted by state law. We do not consider this configuration of the light rail system to create an impairment with the required lighting equipment.

We appreciate the continuing efforts of your company to redesign the system to meet Federal requirements. If you have further questions, please call Taylor Vinson of this Office (202-366-5263).

Sincerely,

John Womack
Acting Chief Counsel

ref:108
d.4/17/01

Mr. Bob Douglas
American Transportation Corporation
751 S. Harkrider
Conway, AR 72032

Dear Mr. Douglas:

This responds to your request that we write a letter to the Government of Israel's Minister of Transportation. You wrote that you needed this letter because you are:

working to secure a bid for commercial buses to be built here in Conway Arkansas and to be exported to Israel. They have requested that we provide them a letter that states that FMVSS 220 is an official regulation and that the regulation only pertains to school buses. They require that this letter come from NHTSA.

The following provides the information you request.

The National Traffic and Motor Vehicle Safety Act was enacted on September 9, 1966,

(P.L. 85-563), in order to reduce traffic accidents, deaths and injuries resulting from traffic accidents. This law, now codified as chapter 301 of title 49, United States Code, directs the U.S. Secretary of Transportation to establish Federal motor vehicle safety standards (FMVSSs), to which motor vehicles and motor vehicle equipment must conform and to which the manufacturers of such vehicles or equipment must certify compliance. The responsibility to establish FMVSSs has been delegated (by regulation) to the National Highway Traffic Safety Administration (NHTSA).

It is my understanding that the Israeli Government wishes to procure buses that are not school buses. There are no Federal motor vehicle safety standards on rollover protection that apply to non-school buses. NHTSA has issued FMVSS 220 (49 CFR Section 571.220), School bus rollover protection to establish performance requirements for school bus rollover protection, but does not apply this standard to non-school buses.

If you wish further information, please write to me at this address or contact Dorothy Nakama of my staff at: (202) 366-2992.

Sincerely,

John Womack
Acting Chief Counsel
ref:220
d.3/6/01

Herr Helmut Honauer
TUV Automotive GmbH
Daimlerstrabe 11
D-85748 Garching
Germany

Dear Herr Honauer:

This is in reply to your e-mail of February 15, 2001, with respect to standards and regulations related to tracked vehicles. You describe a specific vehicle "similar to a snowmobile" with rubber pads on the drive train. The vehicle has a maximum speed of 50 to 62 km/h, and will carry four persons. You state that it is "planned to be used on public roads."

Our agency establishes requirements for "motor vehicles." A "motor vehicle" is "a vehicle driven or drawn by mechanical power and manufactured primarily for use on public streets, roads, and highways." (49 U.S.C. 30102(a)(6)). Although your letter statets that the vehicle is driven by mechanical power and is "planned to be used on the public roads," it would not be a "motor vehicle" under our regulations unless it has been manufactured "primarily" for use on the public roads.

One of the factors we consider in determining whether a vehicle is a "motor vehicle" subject to our jurisdiction is the intent of the vehicle's manufacturer. Since it appears that your company is not the manufacturer of the tracked vehicle, your statement that on road use is planned may not represent the manufacturer's intent. The fact that the vehicle has tracks instead of tires suggests that its primary use is more likely to be off the public roads in terrains where tracks provide an advantage rather than on the public roads where tires would be preferable. The relatively low speed of the vehicle is also consistent with that of a vehicle which is manufactured primarily for use off the public roads.

Vehicles that are not motor vehicles come within the jurisdiction of the Consumer Product Safety Commission. If you wish to write the Commission about possible regulations concerning tracked vehicles, the address is: U.S. Consumer Product Safety Commission, Washington, D.C. 20207-0001.

If the manufacturer intends that the vehicle be used primarily on the public roads, it would be considered a motor vehicle and subject to applicable Federal motor vehicle safety standards. If this should be the case, we would invite you to contact us again concerning how our standards would apply to the vehicle. We would, however, need a more detailed description of the vehicle.

In the United States, each State establishes its own requirements for registration of on-road vehicles. I am sorry, but we are unable to advise you on regulations that each State might apply to on-road use of tracked vehicles.

Sincerely,

John Womack
Acting Chief Counsel

ref:571
d.5/23/01

Ms. Jacqueline Frohman
Chief Financial Officer
Astron Group, Inc.
P.O. Box 163126
Austin, TX 78716

Dear Ms. Frohman:

This is in reply to your letter of February 16,2001, to Taylor Vinson of this Office, asking whether your "AstronLaser" device would "be deemed permissible in the United States."

This device is intended to serve essentially as a rear fog lamp, "and can be adapted to both new vehicles as well as existing ones." The device is connected directly into the vehicle's electrical system "through the existing rear fog light or taillight wiring." The product literature that you enclosed shows that the laser projector is installed at the rear of a vehicle "and is calibrated at an angle where the light beam hits the ground at 220 feet or 70 meters." The device is "mounted in a housing that can be installed on a vehicle's rear window, rear license plate, or truck rear fender," as well as being mounted under the chassis of a truck or trailer.

Federal Motor Vehicle Safety Standard No. 108, Lamps, Reflective Devices, and Associated Equipment, establishes the lighting requirements that manufacturers of motor vehicles and motor vehicle equipment must meet. We have no requirements for fog lamps at this time. Under Standard No. 108, supplementary lighting equipment such as a rear fog lamp is permissible, provided that it does not impair the effectiveness of lighting equipment required by Standard No. 108. After reviewing your device, we do not believe that it would have an impairing effect upon stop lamps, taillamps, or rear turn signal lamps, provided that the connection through the taillamp wiring has no effect upon the performance of the taillamps. We are unable to judge the effect of AstonLaser upon the required license plate lamp were it to be mounted on the rear license plate. Otherwise, it appears permissible under Federal law for a manufacturer or dealer to equip a vehicle with the device prior to the vehicle's first sale.

Subject to the same cautions noted above, we also conclude that the device may be installed as aftermarket equipment on a vehicle in use without violating the statute that prohibits modifications to a vehicle that affect its original compliance with all applicable Federal motor vehicle safety standards, including Standard No. 108 (49 U.S.C. 30122).

We have consulted with the Federal Motor Carrier Safety Administration, which also confirms that use of the device is not prohibited on the trucks and trailers that are subject to its regulations.

However, our opinion that the device is permissible under Federal law does not supersede the right of any State to allow, prohibit, or establish its own requirements for a rear fog lamp. Indeed, you may find that many States prohibit such a device, and you should consult them for advice. We are unable to advise you further on State laws.

In closing, I want to express our concern about mounting the device on the rear window of passenger cars or in any other location where the lamp might be visible to occupants of other vehicles. It appears to be possible that, at some point, the downward projecting beam could shine in the eyes of the driver of an approaching vehicle, thus creating glare. Perhaps more importantly, your literature states that "momentary viewing is not considered hazardous." This statement implies that more than momentary viewing of the laser beam may be hazardous. For these reasons, we recommend that you evaluate the feasibility of relocating the device below the eye level of drivers approaching from the rear, as well as conduct whatever analysis may be necessary to ensure that your device does not create a hazard.

Because your device is intended as motor vehicle equipment, it is subject to the notification and remedy requirements of 49 U.S.C. 30118-30120 in the event that either NHTSA or the device's manufacturer determines that it incorporates a safety related defect.

If you have further questions, you may call Mr. Vinson (202-366-5263).

Sincerely,

John Womack
Acting Chief Counsel
ref:108
d.4/11/01

Mr. Todd Matsumoto
1625 A. Makahuine St.
Honolulu, HI 96817

Dear Mr. Matsumoto:

This responds to your letter concerning your 1964 and 1968 "dune buggy" kit cars. You informed us that the "local government" requires you "to provide the state with a design plan certified by a professional engineer that meets all federal safety standards in order for my car to be legally registered." Subsequently, you faxed us a copy of a letter to you, dated June 30, 2003, from the State of Hawaiis Department of Transportation, which indicates that your vehicles are considered "reconstructed vehicles" under Hawaii law. You asked whether your cars have to meet any specific Federal motor vehicle safety standards (FMVSS or standards) or other regulations.

I will address the applicability of Federal law, 49 U.S.C. Chapter 301, to this issue. This law authorizes the National Highway Traffic Safety Administration to issue FMVSSs that set performance requirements for new motor vehicles and items of motor vehicle equipment. All new motor vehicles and items of motor vehicle equipment must meet the FMVSSs in effect on the date of manufacture.

We have previously provided the following explanation [1] how our regulations apply to kit cars:

We have no definition of"kit cars" but we understand them to be passenger cars consisting of a mixture of old and new parts, assembled into vehicle form by either the supplier or purchaser of a kit of motor vehicle equipment. Some of the FMVSS apply to individual equipment items (for example, tires, glazing, seat belt assemblies), and if these items are new and furnished with the kit, they will have been certified by their manufacturers. If the vehicle is assembled entirely from new parts, the kit supplier must furnish certification with the kit that, when assembled, the vehicle will comply with all applicable FMVSS. However, if the vehicle is manufactured incorporating a number of previously used parts, particularly involving the chassis and/or drive train, we generally have considered the vehicle to be a used one, and none of the FMVSS that apply to new completed vehicles (as contrasted with those that apply to equipment items) apply to it.

In order to be registered for use, a kit car must meet the requirements of the State of licensing.

Assuming that the construction of a kit car does not involve the use of so many new parts as to make it a new motor vehicle, we do not consider it to be a new motor vehicle subject to the FMVSSs in effect on the date of completion of the kit car. Based on the information you provided with your letter and in telephone conversations with Taylor Vinson of my staff, it appears that this is the case with your 1964 and 1968 dune buggy kit cars.

However, the States may regulate the reconstruction of vehicles. The letter you provided to us from the State of Hawaiis Department of Transportation indicates that it considers your vehicles to be "reconstructed vehicles" under Hawaii law, and subject to its requirements for the approval of reconstructed vehicles.

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

Sincerely,

Jacqueline Glassman
Chief Counsel

ref:571
d.7/25/03