ID: 9217

Mr. Jason Backs
Engineering Department
Travis Body and Trailer, Inc.
13995 F.M. 529
Houston, TX 77041

Dear Mr. Backs:

We have received your FAX of October 19, 1993, to Taylor Vinson of this Office, asking for an interpretation of the trailer conspicuity requirements of Federal Motor Vehicle Safety Standard No. 108 as it applies to a dump trailer manufactured by your company.

With respect to the location of the horizontal side conspicuity treatment, you prefer not to place it on the rubrail because "our present extrusions have raised ridges on the outer surface." You propose to apply the conspicuity treatment between each side stake, resulting in 58% coverage of the trailer side. The tape is "in full view" from a point perpendicular to the side of the trailer, but at approximately 30 degrees from perpendicular, the edge of the tape begins to be obstructed by the side stake. You ask for our concurrence that your proposed treatment is in accordance with Standard No. 108.

We are pleased to provide our concurrence. The mounting height requirements of Paragraph S5.7.1.4.2 are specified in terms of practicability. The rule was amended on October 6, 1993, to specify a mounting height of "as close as practicable to not less than 375 mm and not more than 1525 mm above the road surface." The determination of practicability, in the first instance, is that of the manufacturer certifying compliance with Standard No. 108. NHTSA will not question that determination unless it appears clearly erroneous. Because of raised ridges, you deem the rubrail not as practicable a location as the slightly higher area. Paragraph S5.7.1.4.2 allows discontinuities in the side treatment as long as not less than half the side is covered and the spaces are distributed as evenly as practicable.

Although the sheeting itself must meet the performance indicated at the observation angles specified in Figure 29, there are no visibility requirements that apply to it once it is installed on a trailer. This mean that the obscuring of the conspicuity treatment that begins at about 30 degrees from perpendicular under your proposed treatment is not prohibited by Standard No. 108.

Sincerely,

John Womack Acting Chief Counsel

ref:108 d:11/18/93

ID: 9219

Mr. Frank Williams
President
Safety Brake Set
3508 Cascade Highway
Silverton, OR 97381

Dear Mr. Williams:

This responds to your letter requesting information about Federal requirements related to a product that "sets the brakes on an air brake vehicle when the driver exits the cab." I apologize for the delay in our response. You stated that your "device does not hook into the brake system but pops the parking button out if the driver is off the seat and the door is open. The brake then must be manually disengaged." You requested confirmation that the agency will neither support nor oppose the aftermarket installation of such a device.

I am pleased to have this opportunity to explain our regulations to you. I am also enclosing a copy of a fact sheet entitled "Information for New Manufacturers of Motor Vehicles and Motor Vehicle Equipment."

By way of background information, the National Highway Traffic Administration (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 all applicable standards. The following represents our opinion based on the facts provided in your letter.

NHTSA does not have any specific regulations about a product such as your device. However, since this device is related to a vehicle's air brake system, it could affect a vehicle's compliance with Standard No. 121, Air Brake Systems. That standard applies to almost all new trucks, buses, and trailers equipped with air brake systems.

If your system is installed as original equipment on a new vehicle, the vehicle manufacturer is required to certify that, with the device installed, the vehicle satisfies the requirements of all applicable safety standards, including Standard No. 121. (See 15 U.S.C. 1397(a)(1) and 49 CFR Part 567). If the device is added to a previously certified new motor vehicle prior to its first consumer purchase, then the person who modifies the vehicle would be an alterer of a previously certified motor vehicle and would be required to certify that, as altered, the vehicle continues to comply with all of the safety standards affected by the alteration. 49 CFR 567.7.

If the device is installed on a used vehicle by a manufacturer, distributor, dealer, or motor vehicle repair business, then the installer would not be required to attach a certification label. However, it would have to make sure that it did not knowingly render inoperative, in whole or in part, any device or element of design installed on or in a motor vehicle or item of motor vehicle equipment in compliance with an applicable Federal motor vehicle safety standard. 15 U.S.C. 1397(a)(2)(A). In particular, these entities should ensure that the installation of your device does not render inoperative the vehicle's compliance with the parking brake requirements set forth in S5.6.

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

Sincerely,

John Womack Acting Chief Counsel

Enclosure ref:121 d:4/21/94

ID: 9220

Ms. Amantha L. Barbee
Sales Coordinator
Thomas Built Buses, Inc.
Post Office Box 2450
High Point, NC 27261

Dear Ms. Barbee:

This responds to your letter to me of October 14, 1993, and your telephone conversation with Walter Myers of my staff on October 22, 1993.

You stated in your letter that you are the Head Start Sales Coordinator for Thomas Built Buses, Inc., and in that capacity you have found that many Head Start agencies are using conventional vans to transport Head Start students to and from their programs. You stated that when you asked the directors of the agencies why they did not use vehicles that comply with Federal motor vehicle safety standards (FMVSS) for school buses, their usual answer was "because we have not been told otherwise." You then asked whether this practice is illegal and if so, what your organization can do to rectify the situation.

As Mr. Myers explained in your telephone conversation, this agency has repeatedly stated that Head Start facilities are preprimary schools. Therefore, new buses sold to Head Start centers for use in transporting Head Start participants to and from school must comply with all Federal motor vehicle safety standards applicable to school buses. However, Federal law does not require Head Start facilities to use complying school buses or any other particular vehicles. The individual states, not the Federal government, have authority over the use of vehicles.

As promised by Mr. Myers, please find enclosed interpretation letters previously issued by us on this issue, as follows: to Hon. Paul David Wellstone, U.S. Senate, dated Jan. 26, 1993; to Mr. Chuck Anderson, dated Aug. 21, 1992; and to Mr. Charles Pekow, dated Sept. 27, 1985.

I hope this information will be useful. If you have any further questions or desire any further information, please feel free to contact Mr. Myers at this address or at (202) 366-2992.

Sincerely,

John Womack Acting Chief Counsel Enclosures

ref:571#102 d:11/23/93

ID: 9226

Mr. J. C. DeLaney
Manager, Technical Programs
Motorcycle Industry Council, Inc.
2 Jenner Street, Suite 150
Irvine, CA 92718-3812

Dear Mr. DeLaney:

This responds to your request for an interpretation of Federal Motor Vehicle Safety Standard No. 123; Motorcycle controls and displays. You asked whether a motorcycle side stand complies with Standard No. 123 if the stand passes SAE J1587 Motorcycle Side Stand Retraction Test Procedure.

Standard No. 123 specifies at S5.2.4 Stands that: "A stand shall fold rearward and upward if it contacts the ground when the motorcycle is moving forward." Neither S5.2.4 nor any other provision of Standard No. 123 incorporates by reference, SAE J1587. Thus, if a motorcycle side stand passes the SAE J1587 test procedure, it does not automatically follow that the side stand complies with Standard No. 123.

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

Sincerely,

John Womack Acting Chief Counsel ref:123 d:11/23/93

ID: 9229

Mr. Donald W. Vierimaa
Vice President-Engineering
Truck Trailer Manufacturers Association
1020 Princess Street
Alexandria, VA 22314

Dear Mr. Vierimaa:

This responds to your letter of October 19, 1993, with respect to the trailer conspicuity requirements of Standard No. 108.

You report that "[o]ften a new tank trailer will be sold to a customer who will contract with another party to have a lining installed in the tank." Because of the high heat used in the installation of the lining, retroreflective sheeting cannot be applied before the lining is installed.

We believe that the trailer manufacturer is a more appropriate person for ensuring that its product meets the conspicuity requirements of Standard No. 108 than the installer of the lining, or the owner of the trailer. We would like to suggest alternative methods of compliance, other than a direct application of retroreflective tape to the trailer sides, as a resolution of this problem. Standard No. 108 permits the use of reflex reflectors as an alternative to retroreflective sheeting. If the trailer manufacturer prefers retroreflective sheeting, the sheeting may be applied at a lower level if deemed "practicable", or it may be applied to horizontal strips of aluminum that can be fastened to the sides of tank trailers and removed during the installation of the lining.

You also state that "non-tank trailers may be sold without conspicuity treatment when the owner wishes to contract the application of special paint and logo schemes." Sale of a trailer under these circumstances, without its compliance with the conspicuity requirements of Standard No. 108, would be an apparent violation of the National Traffic and Motor Vehicle Safety Act.

Sincerely,

John Womack Acting Chief Counsel ref:108 d:11/22/93

ID: 9249

Mr. Jim Davis
President
Russell Performance Products
2645 Gundry Avenue
Signal Hill, CA 90806

Dear Mr. Davis:

This responds to your letters to Mr. David Elias, formerly of this office, about the requirements of Standard 106, "Brake Hoses," for labeling hydraulic brake hose assemblies. I apologize for the delay in responding.

You explain in your letters that Russell holds a license to manufacture brake hose assemblies from Titeflex Corporation, a manufacturer of brake hoses, end fittings and assemblies. Titeflex supplies Russell with braided hose, and Russell manufactures the end fittings that Titeflex designed, using Titeflex's engineering drawings. Russell assembles the Titeflex hose with the end fittings, and "markets these hose assemblies [in] the marketplace."

You ask about marking the hose assemblies with a designation that identifies the manufacturer of the assembly, pursuant to S5.2.4 of Standard 106. You ask whether both Russell's and Titeflex's designations are required to be labeled, or only the designation of Russell.

The answer is only Russell's designation is required to be marked. Russell is manufacturing the assemblies and will market the assemblies. Russell's designation will identify Russell as the manufacturer of the assembly in the event of a possible noncompliance or defect with the assembly.

You also ask whether Titeflex's hose must be labeled with the information specified in S5.2.1 and S5.2.2 of Standard 106. The first part of your question asks whether the labeling requirements apply to bulk brake hose "with a stainless braided outer covering." The answer is yes. The standard does not exclude braided brake hoses from the labeling requirements.

The second part of this question asks about the required labeling for hoses that are part of brake hose assemblies. You ask for confirmation that Standard 106 does not require the hose to be labeled once the hose is part of a brake hose assembly. Your understanding is correct with regard to S5.2.2. The last sentence of that paragraph states: "The information [specified in S5.2.2] need not be present on hose that is sold as part of a brake hose assembly or a motor vehicle." (The quoted sentence was adopted at 56 FR 50520, October 7, 1991, to replace the sentence you referred to.) Accordingly, the hose need not bear the labeling of S5.2.2 when the hose is part of an assembly. However, the hose must still bear the stripes required by S5.2.1 unless, to quote from S5.2.1, the hose is "manufactured for use only in an assembly whose end fittings prevent its installation in a twisted orientation in either side of the vehicle."

I hope this information is helpful. If you have any further questions, please contact Deirdre Fujita of my staff at the above address, or by phone at (202) 366-2992.

Sincerely,

John Womack Acting Chief Counsel

cc: Mr. Nicholas S. Copass Sales Manager Titeflex Industrial America 170 Tapley Street Springfield, MA 01104-2893 ref:106 d:5/12/94

ID: 9251

Mr. Larry Grabsky
VML and Colonna Corp.
2122 - 65th St.
Brooklyn, NY 11204

Dear Mr. Grabasky:

This is reply to your recent letter asking our views on the use of decorative neon lamps, or of oscillating or revolving ones.

This agency establishes the Federal motor vehicle safety standards which must be met from the time a motor vehicle is manufactured up until its sale to its first purchaser for purposes other than resale. The new car dealer is responsible for ensuring that any lighting equipment that it adds before the sale of the vehicle does not impair the effectiveness of lighting equipment that is required by the standard. The determination of whether an impairment exists is made by the person responsible for adding the equipment. If this determination appears clearly erroneous, NHTSA will question it. In addition, all lighting equipment added before the vehicle's first sale must be steady burning when it is used.

If the lighting equipment is added after the vehicle's sale by a manufacturer, dealer, distributor, or motor vehicle repair business, it is subject to the restriction that it not "render inoperative, in whole or in part" any lamp that has been installed in accordance with Standard No. 108.

Supplementary motor vehicle lighting equipment, whether added before or after initial sale of the vehicle, is subject to the laws of States in which the vehicle is operated, even if the equipment is not prohibited under Federal law.

With respect to neon lights, we are aware of aftermarket installations on the underside of vehicles that illuminate the pavement below. If such lamps create glare that distracts another motorist from perceiving, for example, the turn signals in use, we would consider that an impairment and a partially rendering inoperative within the meaning of those terms. We are unable to advise you on State laws regarding the use of neon lights on vehicles, and suggest that you write for an opinion to the American Association of Motor Vehicle Administrators, 4600 Wilson Boulevard, Arlington, Va. 22203.

We are unsure what you mean by "oscillating" but Standard No. 108, in general, requires lamps added before a vehicle's initial sale to be steady burning in use, unless otherwise permitted (such as turn signals and hazard warning signals, and automatic flashing of headlamps for signalling purposes). Installation of a non steady burning lamp by a manufacturer, dealer, distributor, or motor vehicle repair business after initial sale could be viewed as a rendering inoperative depending upon the circumstances. Standard No. 108 does allow a motorcycle to be equipped with a modulating headlamp for daytime use. The modulation permitted is 240 +/- 40 cycles per minute. When NHTSA proposed to allow the modulating headlamp, some commenters were concerned that the flashing might trigger a photic reaction akin to an attack of epilepsy, in onlookers. We believe that the reaction is most likely to occur at a frequency of 10 hz against a very dark background. Thus, care should be taken in the use of supplementary lamps that are not steady burning.

As for revolving lamps, we believe that these are generally found on police and emergency vehicles such as ambulances and tow trucks. Whether it is permissible to equip a vehicle with these lamps and to use them is a question to be answered under State law.

Sincerely,

John Womack Acting Chief Counsel

ref:108 d:11/16/93

ID: 9252

Mr. James Schaub
Midas Muffler Shop
180 Gause Blvd.
Slidell, LA 70458

Dear Mr. Schaub:

This responds to your letter asking us about Federal Motor Vehicle Safety Standard No. 105 with regard to replacing brake rotors and/or drums. I apologize for the delay in our response. You stated that local automobile dealership service departments do not follow manufacturers' recommendations in this area, causing your customers to believe that your shop is fraudulently selling and installing parts on vehicles when they are not needed. You requested an interpretation of Standard No. 105 in this regard, and asked whether there is any basis for fraud in replacing rotors and drums when they are outside manufacturer safety tolerances. You stated that if you can present an established standard to your customers, you can prevent them from believing they have been taken advantage of.

By way of background information, the National Traffic and Motor Safety Act (Safety Act) authorizes the National Highway Traffic Safety Administration (NHTSA) to issue Federal motor vehicle safety standards for new motor vehicles and new motor vehicle equipment. Standard No. 105, Hydraulic Brake Systems, specifies requirements for hydraulic brake systems and associated parking brake systems. The standard applies to new motor vehicles.

While you asked for an interpretation of Standard No. 105, that standard is of little relevance to your situation. This is because the Federal motor vehicle safety standards do not apply to a motor vehicle after its first sale to a consumer. The Safety Act does include some provisions which are relevant to used vehicles. In particular, the Safety Act prohibits manufacturers, distributors, dealers, and motor vehicle repair businesses from knowingly rendering inoperative any safety device or element of design installed on or in a motor vehicle or item of motor vehicle equipment in compliance with a safety standard. However, this provision would ordinarily not be relevant to a decision whether to replace, or mill or turn, worn brake drums and rotors.

With respect to your desire to show your customers an established standard in this area, I can call your attention to NHTSA's vehicle in use inspection standards. These standards set forth criteria for, among other things, inspecting service brake systems. You should be aware that these standards were developed for use by the States in establishing their inspection requirements. Thus, the standards only apply to the extent that they are adopted by individual States. I have enclosed a copy of the standards for your information and particularly call your attention to section 570.5(f). That section, which applies to vehicles with a GVWR of 10,000 pounds or less, reads as follows:

(f) Disc and drum condition. If the drum is embossed with a maximum safe diameter dimension or the rotor is embossed with a minimum safety thickness dimension, the drum or disc shall be within the appropriate specifications. . . .

This section reflects the importance NHTSA places on following manufacturer recommendations in this area.

The states may regulate the repair of motor vehicles. We suggest that you investigate the laws of Louisiana to see whether they affect your situation.

We cannot advise you about Federal or state requirements concerning fraud. You may wish to contact the Federal Trade Commission, your state government, and/or a private attorney about this matter.

Sincerely,

John Womack Acting Chief Counsel

Enclosure

ref:105#570 d:5/18/94

ID: 9263

John B. Walsh
Legal Affairs Manager
Corporate Attorney
American Suzuki Motor Corporation
3251 E. Imperial Highway
P.O. Box 1100
Brea, CA 92622-1100

Dear Mr. Walsh:

This acknowledges receipt of your letter dated October 29, 1993 requesting an interpretation of the labeling requirements of the recent final rule mandating the installation of air bags in passenger cars and light trucks (58 FR 46551, September 2, 1993). As you suggested in your letter, we believe it would be appropriate to respond to your request in the notice responding to the petitions for reconsideration of the September 2 final rule.

If you have any other questions, please contact Mary Versailles of my staff at this address or by phone at (202) 366-2992.

Sincerely,

John Womack Acting Chief Counsel

ref:208 d:11//4/93

ID: 9279

Ronald L. Signorino, Director
Health, Safety & Regulatory Affairs
Universal Maritime Service Corp.
Suite 1600
10 Exchange Place
Jersey City, NJ 07302

Dear Mr. Signorino:

We have received your FAX of November 3, 1993, with respect to the trailer conspicuity specifications of Federal Motor Vehicle Safety Standard No. 108.

First, we regret the confusion that has been caused by our letter of October 20, 1993, to James Peepas of Selecto-Flash, Inc., which modified our earlier interpretation dated July 26, 1993. Mr. Peepas has made a number of calls to this Office seeking an understanding of the conspicuity requirements on Maersk's behalf, and, in our view, has pursued the matter with diligence.

You have presented three "Facts" and ask whether each is right or wrong.

"Fact: With particular reference to Maersk Line's prospective order for forty-foot gooseneck chassis (drawing accompanies this fax) your October 20 letter makes clear that calculable conspicuity treatments must not be obscured by trailer cargo."

If calculable means "required", this is a correct statement. Our letter of October 20 refers to the requirement of paragraph S5.7.1.4.2(a) that "at the location chosen, the strip [of sheeting] shall not be obscured in whole or in part by other motor vehicle equipment or trailer cargo."

"Fact: In calculating the area of conspicuity treatment for such chassis, the gooseneck section, as it is often hidden from view by mounted intermodal containers (trailer cargo), cannot properly be considered an appropriate site; and"

The length of the gooseneck is included in determining the overall length of the trailer for purposes of calculating the half length that must be covered by the conspicuity treatment (which, of course, would be greater than half the length behind the gooseneck). There is nothing in Standard No. 108 that precludes the application of auxiliary retroreflective sheeting to the gooseneck. Indeed, some manufacturers may wish to do so to provide conspicuity of the trailer side when the trailer is traveling without its cargo. However, any conspicuity treatment on a gooseneck is not counted in determining whether at least half the trailer side is covered.

"Fact: In determining the fifty percent of side surface area to receive conspicuity treatment on such chassis, the length of the chassis, from its rear bolster to its point immediately behind the gooseneck's terminus, is solely relevant."

This assertion is wrong, and the correct requirement is most clearly illustrated by the following example. Let us say that the overall length of the trailer is 40 feet, including an 8- foot gooseneck. The amount of the side to be covered is not less than 20 feet. The area to be covered is the 32 feet between the rear bolster to the point immediately behind the gooseneck's terminus. Thus, at least 20 feet of this 32-foot length must be covered in order to comply with Standard No. 108.

I hope that this clarifies the matter for you.

Sincerely,

John Womack Acting Chief Counsel

cc: James Z. Peepas ref:108 d:11/19/93