ID: 18265-a.wkm

Mr. Alan S. Greenberg
President
Worldwide Machinery
16-31 East Freeway
Channelview, TX 77530

Dear Mr. Greenberg:

Reference is made to your letter to this office in which you enclosed a picture of your Standing Water Tank and argured that it is exempt from the antilock brake system, or ABS, requirements of Federal Motor Vehicle Safety Standard (Standard) No. 121, Air brake systems (49 Code of Federal Regulations (CFR) 571.121). You stated that your trailer is exempt by virtue of "Exception (f)" of the standard.

We assume that you are referring to paragraph S3(f) of Standard No. 121, which excludes from application of the standard "[A]ny trailer that has an unloaded vehicle weight which is not less than 95 percent of its GVWR." The term "gross vehicle weight rating," or GVWR, is defined in 49 CFR 571.3(a) as "[T]he value specified by the manufacturer as the loaded weight of a single vehicle" (emphasis added). Therefore, the loaded weight of your tank/trailer assembly would presumably be its weight when filled with water to its nominal tank capacity.

Before we can determine whether your water tank/trailer assembly meets the exclusion of paragraph S3(f), we must know the GVWR that you have assigned to it as well as its empty weight. Is your water tank transported either partially or fully loaded with water, or is it transported empty? If transported empty, what feature in the tank or trailer design prevents a user from transporting the tank fully loaded with water? Is your standing water tank used for other purposes, such as to provide potable water in disaster areas? If so, is it transported to such sites either partially or fully loaded with water?

We have tried repeatedly to contact you by telephone to obtain this information, but have been unable to do so. If you will provide us the information requested above, we will expedite a response to you so that this matter can be resolved. My staff point of contact is Walter Myers, who can be reached at this address, by telephone at (202) 366-2992, or by fax at (202) 366-3820.

Sincerely,
Frank Seales, Jr.
Chief Counsel
ref:121
d.4/8/99

ID: 18267.drn

Mr. Jeff Hibbs, Fleet Coordinator
C & C Ford - Mercury
103 East Fifth St.
P. O. Box 249
Sturgis, KY 42459

Dear Mr. Hibbs:

This responds to your letter regarding the use of 15-passenger vans by a child care facility to drop off and pick up school children from schools. You ask whether the vans are "school buses" under Federal law. In a telephone conversation with Dorothy Nakama of my staff, you explained that you believe that the children will be transported "to and from school" on a regular basis, perhaps as often as five days a week.

I am enclosing a copy of our July 23, 1998, letter to Mr. Don Cote of Northside Ford in San Antonio, who asked us the same question about vans regularly used by a child care facility for school transportation. In that letter, we explain that such a van is a "school bus" under our regulations. Thus, when a dealer sells or leases a new van for such use, the dealer must sell or lease only buses that meet Federal motor vehicle safety standards for school buses, even when the purchaser is a child care facility.

The National Highway Traffic Safety Administration (NHTSA) believes that school buses are one of the safest forms of transportation in this country, and therefore strongly recommends that all buses that are used to transport school children be certified as meeting NHTSA's school bus safety standards. In addition, use of 15-passenger vans that do not meet the school bus standards to transport students could result in increased liability to the school bus operator or seller in the event of a crash. Since such liability would be determined by State law, you should consult your attorney and insurance carrier for advice on this issue.

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

Sincerely,
Frank Seales, Jr.
Chief Counsel
Enclosure
ref:VSA#571.3
d.9/2/98

ID: 18268.jeg

Robert C. Sanders, Esq.
Director and General Counsel
Parents for Safer Air Bags
Suite 300, 1250 24th Street, NW
Washington, DC 20037

Dear Mr. Sanders:

This responds to your letter asking about the "one-truck credit" provisions of Federal Motor Vehicle Safety Standard No. 208. I apologize for the delay in our response. The question you ask is answered below. This letter also responds to a question you asked in a subsequent telephone conversation about the "one-car credit" provisions.

By way of background information, the National Highway Traffic Safety Administration (NHTSA) established the one-truck credit provisions as part of its March 1991 final rule extending automatic crash protection requirements to light trucks. The final rule established a phase-in implementation of the automatic crash protection requirements for light trucks, with a specified percentage of each manufacturer's production of light trucks required to be equipped with automatic crash protection beginning with vehicles manufactured on or after September 1, 1994. The phase-in ended on September 1, 1997, after which date all light trucks were required to be equipped with automatic crash protection.

During the phase-in period, the 1991 final rule provided a number of "credits" for light truck manufacturers, including the "one-truck credit." While the requirements for automatic protection generally applied to both the driver's and right front passenger's positions, the one-truck credit provisions allowed manufacturers to count light trucks equipped with an air bag at the driver's position (which met Standard No. 208's unbelted test requirements) and a dynamically-tested manual lap/shoulder belt at the right front passenger's position as one truck equipped with automatic crash protection during the phase-in.

The 1991 final rule also provided that the one-truck credit provisions extended for one year beyond the end of the phase-in. From September 1, 1997 through August 31, 1998, manufacturers were permitted to count light trucks equipped with an air bag at the driver's position and a dynamically-tested manual lap/shoulder belt at the right front passenger's position as a truck that complied with the automatic crash protection requirement.

Congress ultimately decided to require light trucks to be equipped with air bags and manual lap/shoulder belts, and specified a one-year phase-in of this requirement during the September 1, 1997 through August 31, 1998 time period. Under this statutory requirement, the one-truck credit remained available during this one-year period.⁽¹⁾

You ask whether a vehicle which was otherwise eligible for the one-truck credit remained eligible if the manufacturer installed a passenger-side air bag that did not enable the vehicle to meet the unbelted test requirements of Standard No. 208, e.g., because the air bag had a sufficiently low inflator power level. The answer to this question is yes.

The specific language implementing the one-truck credit provisions for the light truck automatic restraint phase-in states that each vehicle "whose driver's seating position complies with the requirements of S4.1.2.1(a) by means not including any type of seat belt and whose right front passenger's seating position is equipped with a manual Type 2 seat belt that complies with S5.1 of this standard" is counted as a vehicle complying with the automatic crash protection requirements. (S4.2.5.4(c) and S4.2.5.5(a)(2).) The specific language implementing the one-truck credit provisions for the light truck air bag phase-in states that each vehicle "whose driver's seating position complies with S4.1.5.1(a)(1) by means of an inflatable restraint system and whose right front passenger's seating position is equipped with a manual Type 2 seat belt assembly that complies with S5.1 of this standard" is counted as a vehicle complying with the air bag requirements. (S4.2.6.1.1.)

As indicated by this language, all that was needed under the one-truck credit provisions at the right front passenger's seating position was a dynamically tested lap and shoulder belt. The agency has long stated that manufacturers are free to install systems or components in addition to the required safety components, provided that the additional systems do not destroy the ability of the required systems to comply with the applicable safety standards. Thus, prior to September 1, 1998, if a manufacturer wished to install a passenger-side air bag, it was free to do so under the one-truck credit provisions, even if the air bag did not enable the vehicle to meet the unbelted test requirements of Standard No. 208.

In your letter, you cite a March 1997 statement by a vehicle manufacturer indicating that some light trucks were manufactured with passenger-side air bags that did not satisfy the unbelted test requirements of Standard No. 208. While we have not researched the matter comprehensively, our Office of Vehicle Safety Compliance has advised that a number of manufacturers produced light trucks with passenger-side air bags that were not certified to the unbelted test requirements.

In a telephone conversation with Edward Glancy of my staff, you asked that we address the question you asked about the "one-truck credit" provisions with respect to the "one-car credit" provisions. I note that the "one-car credit" provisions preceded the "one-truck credit" provisions and were adopted as part of the phase-in of automatic protection requirements for passenger cars. The agency adopted essentially the same language for implementing the one-truck credit provisions as had been used for the one-car credit provisions.⁽²⁾ Therefore, our answer to your question about the one-truck credit provisions also applies with respect to the one-car credit provisions, i.e., a vehicle which was otherwise eligible for the one-car credit remained eligible if the manufacturer installed a passenger-side air bag that did not enable the vehicle to meet the unbelted test requirements of Standard No. 208.

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

Sincerely,
Frank Seales, Jr.
Chief Counsel
d.10/29/98
ref:208

1. See 57 FR 59043, 59044-45 (December 14, 1992) and 58 FR 46551 (September 2, 1993).

2. Compare S4.2.5.4(c), S4.2.5.5(a)(2), and S4.2.6.1.1 with S4.1.3.4(a)(2) and S4.1.4.1. The one-car credit provisions applied both during the phase-in of the automatic protection requirements for passenger cars (September 1, 1986 through August 30, 1989) and for the four years immediately following the phase-in (September 1, 1989 through August 31, 1993). I note that during the phase-in, all that was needed under the one-car credit provisions at the right front passenger's seating position was a manual lap/shoulder belt. For the four years following the phase-in, a dynamically tested manual lap/shoulder belt was required at the right front passenger's seating position. See 52 FR 10096 (March 30, 1987).

ID: 18322.ztv

Mr. Yaichi Oishi
General Manager
Government Affairs Department
Toyota Technical Center, USA, Inc.
1850 M Street, NW
Washington, DC 20036

Dear Mr. Oishi:

This is in reply to your letter of July 7, 1998, requesting an interpretation of Federal Motor Vehicle Safety Standard No. 108.

You cite S7.5(d)(2):

The lower and upper beams of a headlamp system consisting of two lamps, each containing either one or two replaceable light sources, shall be provided as follows:

(i) The lower beam shall be provided . . .

(A) By the outboard light source (or the upper one if arranged vertically) . . .

(ii) The upper beam shall be provided. . .

(A) By the inboard light source (or the lower one if arranged vertically) . . .

Toyota believes that the outboard light source must always provide the lower beam, except when neither light source is outboard of the other, i.e. when the light sources "are arranged perfectly vertically," the upper light source must provide the lower beam. You comment that "since it is nearly impossible to have light sources arranged 'perfectly vertically,' we believe that the agency's intent was that the light source may be considered outboard rather than vertically arranged for light source offsets beyond a certain nominal distance." You have determined that the nominal distance between optical axes should be 5 mm because "this is the distance at which we believe the two light sources can be optically recognized as being arranged offset from one another."

By way of background, this specification was originally adopted in the 1970s to apply to four-lamp sealed beam headlighting systems in which each lamp was identical in size and contained only a single light source. When the lamps were mounted horizontally, side by side with identical horizontal centerlines, the outboard lamps were required to be the ones providing the lower beam, which also served to mark the width of the vehicle. When the lamps were mounted vertically, one atop the other with identical vertical centerlines, the lower beam continued to mark the width of the vehicle, but it was required to be the uppermost headlamp in order to provide a greater seeing distance. This established the location priority for the lower beam, that it be the outermost beam, and uppermost beam if the vertical axes of the lamps coincided.

Paragraph S7.5(d)(2) extends this specification to headlighting systems consisting of two replaceable bulb headlamps with one or two light sources. The 1990s have seen the advent of headlighting systems and locations that were not contemplated when the location priority was established. We must therefore interpret S7.5(d)(2) and similar location requirements in a manner that best implements the agency's original safety intent, that the lower beam must be no further inboard than, and no lower than, the upper beam. Accordingly, where the vertical or horizontal axes of headlamps or light sources do not coincide, what is "upper" and "lower" will be determined by the relationship of the horizontal axes of a system's headlamps or light sources. The Toyota design depicts a system in which the lower beam headlamps are the outermost, in accordance with Standard No. 108. But the upper beam is provided by a headlamp whose horizontal axis is higher on the vehicle than the horizontal axis of the lower beam headlamp. This arrangement does not meet the intent that the lower beam be provided by "the upper one if arranged vertically."

In the forthcoming notice of proposed rulemaking to rewrite the headlamp specifications of Standard No. 108, the agency intends to propose modifying the current language to make the outboard position the only location requirement for the lower beam unless the upper and lower beams are arranged exactly vertically. This will ensure that the most frequently used headlamp beam can also serve to indicate the overall width of the vehicle from the front.

On March 25, 1998, we responded to a request by Stanley Electric Co. for an interpretation of S7.5(e)(2)(i)(A), the similar location specification for a two-lamp headlamp system each containing two replaceable light sources. I enclose a copy for your information. In the Stanley design, the lower beam was provided by the uppermost light source but its vertical centerline was inboard of that of the upper beam light source. We informed Stanley the design of this headlamp system did not comport with the original intent of Standard No. 108 that the lower beam be provided by either the outermost lamp or by one with an identical vertical centerline to the upper beam lamp. We concluded by saying that "the lower beam light source must not only be the uppermost of the two light sources but, also, its vertical centerline must not be inboard of the vertical centerline of the upper beam light source."

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

Sincerely,
Frank Seales, Jr.
Chief Counsel
Enclosure
d.10/29/98
ref:108

ID: 18323.nhf

Mr. Jurgen Babirad
Rehabilitation Technology Associates, Inc.
P.O. Box 540
Kinderhook, NY 12106

Dear Mr. Babirad:

This responds to your letter requesting permission to modify a 1995 Ford E-150 full-size van for a driver with muscular dystrophy. You explain that your client has limited strength and range of motion due to his disability and needs to replace the OEM steering wheel and air bag with a high-tech steering system that incorporates a reduced diameter steering wheel and reduced effort steering. The new steering wheel would be too small to be fitted with an air bag.

This letter provides the relief you seek. The National Highway Traffic Safety Administration (NHTSA) will not institute enforcement proceedings against a commercial entity that removes the air bag and modifies the steering wheel and column on a vehicle to accommodate the condition you described.

We would like to begin by explaining that NHTSA is authorized to issue Federal motor vehicle safety standards that set performance requirements for new motor vehicles and items of motor vehicle equipment. Manufacturers are required to certify that their products conform to our safety standards before they can be offered for sale. After the first sale of a vehicle, 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 standard. In general, the "make inoperative" prohibition (49 U.S.C. 30122) requires businesses which modify motor vehicles to ensure that they do not remove, disconnect, or degrade the performance of safety equipment installed in compliance with an applicable standard. Violations of this prohibition are punishable by civil penalties of up to $1,100 per violation.

There is no procedure by which businesses petition for and are granted permission from NHTSA to modify a motor vehicle. Businesses are permitted to modify vehicles without obtaining permission from NHTSA to do so, but are subject to the make inoperative provision of 49 U.S.C. 30122. However, in certain limited situations, we have exercised our discretion in enforcing our requirements to provide some allowances to a business which cannot conform to our requirements when making modifications to accommodate the special needs of persons with disabilities.

Removing the vehicle's original steering wheel and air bag would affect compliance with Standard No. 208, Occupant Crash Protection. Standard No. 208, Occupant Crash Protection, requires vehicles to be equipped with specific manual and automatic restraint systems (e.g. seat belts and air bags) and to meet specified injury criteria during a test. However, as noted above, in situations such as yours where a vehicle must be modified to accommodate the needs of a particular disability, we have been willing to consider violations of the "make inoperative" prohibition to be justified by public need. Accordingly, NHTSA will not institute enforcement proceedings against a business that modifies the steering wheel and air bag to accommodate the condition you describe.

We caution, however, that only necessary modifications should be made. In addition, you should consult with the vehicle manufacturer to determine how to disarm the air bag. The manufacturer should be able to provide information on how the modification can be safely performed. We are enclosing a warning label stating that the air bag has been deactivated. For the safety of everyone who may ride in the vehicle, we ask that you affix this label on the sun visor above the deactivated air bag. Finally, if the vehicle is sold, the seller should advise the purchaser that the vehicle has been modified and consider reinstalling the removed safety equipment if appropriate.

You may be interested in knowing that the agency is working on a proposal to regulate the aftermarket modification of vehicles for persons with disabilities by setting out exemptions from the make inoperative prohibition for certain standards. In place of the agency's current approach where each request for exemption from the make inoperative prohibition is reviewed case-by-case, this proposal would give clear guidance to modifiers about principles to follow when considering vehicle modifications to accommodate someone's disabilities. We intend to publish a notice of proposed rulemaking shortly.

If you have other questions or require additional information, please contact Nicole Fradette of my staff at this address or by phone at (202) 366-2992.

Sincerely,
Frank Seales, Jr.
Chief Counsel
Enclosure
Warning Label
ref:vsa
d.8/28/98

ID: 18327.ztv

Mr. John D. Evans
Vice President Engineering
The Knapheide Manufacturing Company
P.O. Box 7140
Quincy, IL 62305-7140

Dear Mr. Evans:

This is in reply to your letter of June 29, 1998, asking for an interpretation of a note to Federal Motor Vehicle Safety Standard No. 108 Lamps, Reflective Devices, and Associated Equipment.

Standard No. 108 and some of the SAE standards that it incorporates by reference distinguish between vehicles with an overall width of 80 inches or more, and those of lesser width. A note to Standard No. 108 defines "overall width" as the nominal design dimension of the widest part of the vehicle, but excludes certain items including "flexible fender extensions." You have asked whether this term would apply to "a rubber fenderette that is attached to a steel body fender panel." You have also asked whether a "fender design with an integral flare which would be made of a flexible material" and is "easily deformable by finger pressure" would also qualify as a "flexible fender extension."

Although the term "flexible fender extension" has been in the note since 1967 (published at 32 FR 8803), it is not specifically defined. We can find only one instance in which we have interpreted the term. In a letter of May 22, 1997, to Ben Reginella, we informed him that the "painted flexible flares" that he was developing for a Dodge truck were "flexible fender extensions" within the meaning of the term. However, we did not explain how we reached that conclusion. With respect to your "fender design with an integral flare which would be made of flexible material," and which is "easily deformable by finger pressure," in our view, this would not be included in the calculation of "overall width."

We are less certain about "a rubber fenderette." While this might be a "fender extension," its flexibility would appear to depend upon the degree of the hardness of the rubber. It would be a "flexible fender extension" if it, too, is easily deformable by finger pressure.

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

Sincerely,
Frank Seales, Jr.
Chief Counsel
ref:108
d.8/17/98

ID: 18328a.drn

Mary Johnston, Esq.
Metropolitan Government of
Nashville and Davidson County
Department of Law
204 Courthouse
Nashville, TN 37201

Dear Ms. Johnston:

This responds to your letter and telephone call asking about our school bus regulations. I apologize for the delay in responding.

Your letter asks the following:

If a new multipurpose passenger vehicle (van) with a capacity of ten (10) persons⁽¹⁾ . . .  is purchased by a private company to transport school children (under a contract with a school system) and remodeled, by removing seats and installing restraint systems for wheelchairs, to carry four wheelchairs, is this sale permissible under federal regulation?

If the above occurs but the remodeling creates two wheelchair spaces and two passenger seats, is this permissible under federal regulations?

In a telephone conversation with Dorothy Nakama of my staff, you stated that you did not know whether the modification would be made by the dealer that sells the new vehicle or the purchaser (which will provide the transportation under a contract with the school).

By way of background, the National Highway Traffic Safety Administration (NHTSA) is authorized to issue and enforce Federal motor vehicle safety standards applicable to new motor vehicles. Our statute at 49 U.S.C. 30112 requires any person selling or leasing a new vehicle to sell or lease a vehicle that meets all applicable standards. Accordingly, persons selling or leasing a new "school bus" must sell or lease a vehicle that meets the safety standards applicable to school buses. Our statute defines a "schoolbus" as any vehicle that is designed for carrying a driver and more than 10 passengers and which, NHTSA decides, is likely to be "used significantly" to transport "preprimary, primary, and secondary" students to or from school or related events. 49 U.S.C. 30125. By regulation, the capacity threshold for school buses corresponds to that of buses -- vehicles designed for carrying more than ten (10) persons.

One of the factors used by NHTSA in determining vehicle types is seating capacity. The agency determines whether a vehicle is a "bus" or a "multipurpose passenger vehicle" (MPV) based in part on the vehicle's passenger seating capacity. NHTSA determines a vehicle's seating capacity by counting the number of "designated seating positions" in the vehicle. That term is defined in 49 CFR 571.3 of our regulations. The term was amended in 1996 to address school bus modifications involving the removal of seats.

Prior to March 1996, NHTSA considered each position for securing a wheelchair on a school bus as one designated seating position (DSP). That interpretation of DSP had a significant impact on whether some vehicles were classified as MPVs or as school buses. When seats were removed from a bus to place wheelchair securement devices on the vehicle, and the seating capacity of the vehicle was reduced to 10 or fewer persons, the classification of the vehicle changed from a bus to an MPV. The vehicle was an MPV even if the vehicle prior to modification had been a school bus and was to be used after the modification as a school vehicle.

The agency undertook rulemaking to afford students in wheelchairs the school bus protection provided to students transported in other school buses. The 4-to-1 ratio of DSPs to wheelchair positions was based on information that 4 DSPs are typically removed for each wheelchair location installed on a bus.

Accordingly, NHTSA amended the DSP definition at 49 CFR 571.3, to state, in pertinent part:

* * *

For the sole purpose of determining the classification of any vehicle sold or introduced into interstate commerce for purposes that include carrying students to and from school or related events, any location in such vehicle intended for securement of an occupied wheelchair during vehicle operation shall be regarded as four designated seating positions.

Turning to your question, if a dealer modifies a new multipurpose passenger vehicle before delivery, by removing seats and installing 4 wheelchair restraint systems, the dealer would be an "alterer" under our regulations (49 CFR 567.7). The dealer must place an alterer's label on the altered vehicle, including a statement that the vehicle, as altered, conforms to all applicable safety standards. As altered, the school vehicle would be a "school bus," given its designated seating positions (17) and pupil transportation purpose. The vehicle would have to be certified as meeting Federal school bus standards.

If the MPV were modified after the first sale by a motor vehicle manufacturer, dealer, distributor or repair business, certain restrictions apply. These entities are prohibited from "knowingly making inoperative" any device or element of design installed on or in a motor vehicle in compliance with an applicable standard. In general, the "make inoperative" prohibition (49 U.S.C. 30122) requires businesses which modify motor vehicles to ensure that they do not knowingly remove, disconnect, or degrade the performance of safety equipment installed in compliance with an applicable standard. The business may remove the seats and install the wheelchair retaining devices if the modifier does not knowingly reduce the performance of compliant systems. The businesses would not be required to ensure that new systems they install on the used vehicle (that are wholly independent of existing systems) perform to the school bus safety standards. However, NHTSA would encourage the modifier to make sure the new systems adequately performed. For example, we would recommend conforming the wheelchair locations to the requirements for wheelchair securement anchorages in Standard 222, "School Bus Passenger Seating and Crash Protection" (see S5.4.1 of 49 CFR 571.222).

If the private company you refer to modifies its own vehicle, there is no Federal certification requirement. Owners may modify their own vehicles without needing to meet Federal safety standards. In addition, the "make inoperative" prohibition of 49 U.S.C. 30122 does not apply to modifications to a vehicle made by its owner. Again, however, we would encourage the owner to ensure that it modifies its vehicles in ways that provide adequate levels of safety performance. Please also note that since Tennessee State law may regulate how an owner may modify its own vehicles, you should review State law to see if it addresses owners' modifications of their school vehicles.

A vehicle with two wheelchair positions and two passenger seats would be considered a school bus, if altered and sold as a new vehicle. The vehicle would be considered to have a seating capacity of 11 persons (4 DSPs per wheelchair position, plus two passenger seats and the driver's seating position). The requirements that apply to this modification are the same as those discussed in our answer to your first question.

Please note that Federal law and NHTSA's safety standards directly regulate only the manufacture and sale of new motor vehicles, not their use. Because States have the authority to regulate the use of vehicles under State law, you should review the law of Tennessee to see if it addresses how school children who use wheelchairs must be transported.

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,
Frank Seales, Jr.
Chief Counsel
ref:VSA#571.3
d.3/30/99

1. A multipurpose passenger vehicle is designed to carry 10 or fewer persons, counting the driver. Accordingly, we did not include the driver, as you had, because counting the driver's position results in a carrying capacity of 11 persons.

ID: 18332.nhf

Mr. Pierre Trudeau
Transport Canada
Road Safety and Motor Vehicle Regulation
330 Sparks Street, Tower C
Ottawa, Ontario K1A 0N5

Dear Mr. Trudeau:

This responds to your inquiry about whether several pieces of construction equipment manufactured by Allmand Bros., Inc. and portable compressor units manufactured by Atlas Copco Compressors, Inc. (Atlas) are considered motor vehicles under our statutes and regulations. I apologize for the delay in my response. According to the information provided with your letter, Allmand Bros., Inc. manufactures non-powered light towers, portable flashing arrowboards, and other non-powered construction equipment. Atlas manufactures trailer mounted compressor units for use as construction equipment. I can provide general information on how we analyze whether these types of units are considered motor vehicles. However, without specific information on a particular unit, we cannot provide an opinion as to whether it is a motor vehicle.

By way of background information, the National Highway Traffic Safety Administration (NHTSA) issues and enforces the Federal motor vehicle safety standards (FMVSS). NHTSA's statute defines the term "motor vehicle" as follows:

[A] vehicle driven or drawn by mechanical power manufactured primarily for use on the public streets, roads, and highways, but does not include a vehicle operated only on a rail line. 49 USC 30102(a)(6).

Whether NHTSA considers various pieces of construction equipment and portable compressors to be motor vehicles depends on their use. In the past, we have concluded 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-road use of the equipment is merely incidental and is not the primary purpose for which they were manufactured. Other construction 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, since the on-highway use is more than "incidental."

Based on the information you provided in your fax, we do not have sufficient information about the use of the construction equipment or the portable compressors to determine whether or not they are motor vehicles. I note, by way of guidance, that we concluded that mobile waterjet cutting and cleaning equipment were not motor vehicles, based on the fact that they appeared to stay on job sites for extended periods of time ranging from a week to over a year.

If, however, certain construction equipment or portable air compressors are used frequently on the highways, they would be considered motor vehicles and would be required to comply with all applicable FMVSSs. I am also enclosing copies of several letters which address the issue of whether certain units, including portable compressors and construction equipment, are motor vehicles under our statutes and regulations. I hope this information is helpful to you.

If you have further questions regarding NHTSA's safety standards, please contact Nicole Fradette of my staff at this address or by telephone at (202) 366-2992.

Sincerely,
Frank Seales, Jr.
Chief Counsel
Enclosures
ref:VSA
d.4/1/99

ID: 18334.ztv

Mr. Ken Charof
FAX : 212-702-8838

Dear Mr. Charof:

This is in reply to your email of July 5, 1998, to the Department of Transportation.

You write that you want to manufacture "second brake lights" for motorcycles, and inform us that "these lights are not to replace original equipment brake lights. They're in addition to them." You ask "if these lights will need to be approved by the Dept. of Transportation."

The Department does not "approve" items of motor vehicle equipment, but is pleased to advise, as in this instance, of the relationship of the equipment to the applicable Federal motor vehicle safety standard. The standard that applies to motor vehicle lighting is Safety Standard No. 108 Lamps, Reflective Devices and Associated Equipment.

We call the product you wish to manufacture "supplemental stop lamps." Since they are not intended to replace original equipment stop lamps, there are no requirements of Standard No. 108 that apply to these lamps. However, if the supplemental stop lamps are intended as original equipment, the manufacturer of the motorcycle must ensure that these supplemental lamps do not impair the effectiveness of lighting equipment required by Standard No. 108 for motorcycles. As a general guideline, a judgment of impairment may be based upon the intensity of the supplementary lamp and its spacing in relation to other lamps.

Similarly, if you intend to sell these supplemental lamps in the aftermarket, Standard No. 108 does not apply to them. Aftermarket equipment is subject to the restriction that its installation by a manufacturer, dealer, distributor, or motor vehicle repair business must not make inoperative any device or element of design installed in accordance with a Federal motor vehicle safety standard. Generally, if the installation of the supplementary lamps would create an impairment, we would consider that their installation as aftermarket equipment would "make inoperative" the original equipment lamp that is being impaired.

Although we do not directly regulate supplementary lighting equipment, it is nevertheless "motor vehicle equipment" under the laws that we administer. Manufacturers of "motor vehicle equipment," such as you intend to be, are required to provide owners with notification and a cost-free remedy in the event that a safety related defect is determined to exist in their products.

The use of supplementary lighting equipment is subject to regulation by the individual states. I am sorry but we have no information on state laws on this subject, and we advise you to consult the department of motor vehicles in those states where you plan to sell the lamps.

If you have further questions, you may contact Taylor Vinson of this office, by email (Tvinson@NHTSA.DOT.GOV) or by phone (202-366-5263).

Sincerely,
Frank Seales, Jr.
Chief Counsel
ref:108
d.8/4/98

ID: 18342.wkm

Mr. Scott Rink
OverBuilt, Inc.
780 West Park Avenue NW
Huron, SD 57350

Dear Mr. Rink:

Please pardon the delay in responding to your letter to Walter Myers of my staff in which you asked whether the car crusher your company builds is 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 a promotional brochure that shows a picture of your car crusher. You described it as weighing 60,000 pounds and is sold either as a stationary or as a portable unit, the only difference being the addition of axles and a fifth wheel. You stated that the equipment is not used to haul anything but itself, and the brochure states that when ready to be transported, the deck is lowered and the equipment towed away. We take that to mean that any cars that have been crushed have been removed and only the crusher itself is transported.

Chapter 301 of Title 49, U. S. Code (hereinafter referred 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. The Safety Act defines "motor vehicle" as:

[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.

49 U.S. Code 30102(a)(6).

In reviewing the information you provided, including the brochure enclosed with your letter, it is our opinion that the car crusher you described and as depicted in your brochure is not a motor vehicle within the statutory definition. It is obviously designed to be used primarily off-road and although it is capable of being transported on-road from the factory to the customer and by the customer from one job site to another, its on-road use is only incidental and not the primary purpose for which the equipment was manufactured. Not being a motor vehicle, therefore, your car crusher is not required to comply with the Federal motor vehicle safety standards, including Standard No. 121.

Moreover, Standard No. 121 applies to "trucks, buses, and trailers equipped with air brake systems." It does not, however, apply to "Any trailer that has an unloaded vehicle weight which is not less than 95 percent of its GVWR [gross vehicle weight rating], . . ." Accordingly, since your car crusher is transported by itself with no other cargo or equipment included, it would be excluded from the requirements of Standard No. 121 in any case by virtue of paragraph S3(f).

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.12/1/98