Mr. Art Tan
President
CNA Industries, Inc.
985 Los Lagos
Pomona, CA 91766

Dear Mr. Tan:

This is in reply to your undated letter which we received on January 8, 2001. You have informed us that you are making "small off-road utility vehicles mainly for golf courses." You have asked us to advise you "what category our vehicles fall in according to the National Highway Traffic Safety Administration's regulations."

The information you have submitted demonstrates your familiarity with the five factors that we use in our interpretations on whether certain vehicles are motor vehicles. You have addressed each of these factors in a manner to support a determination that the vehicles in question are not motor vehicles subject to the Federal motor vehicle safety standards.

Specifically, according to your letter, the vehicles "are for ground maintenance work on golf courses," which is to say, their intended use is in an off-road application. The vehicles "will be distributed through "our turf & tractor dealers only." That is to say, they will not be sold by dealers in motor vehicles. Each owner will be provided a certificate advising that the vehicle has been manufactured for off-road applications only, and you will not provide any manufacturer's document that may help the owner register the vehicle for on-road use. That is consistent with a conclusion that the vehicles in question are not manufactured for on-road use. You will advertise only in publications for turf and ground maintenance. That is consistent with the purpose for which the vehicles have been manufactured. Finally, you will affix four labels to the vehicle advising that it is an "off road" vehicle and must not be used on the public roads. Whether a vehicle will bear warning labels is the fifth factor we examine, and you have answered this, too, in a manner that permits us to conclude that your vehicles are not motor vehicles.

Therefore, based on the representations in your letter and considering all the five factors discussed above, on balance, we believe that your vehicles are not "motor vehicles." However, we will reexamine this conclusion if we learn, for example, the vehicles are in fact used on the public roads by a substantial number of owners.

Sincerely,

John Womack
Acting Chief Counsel
ref:571

d.3/27/01

Mr. Henry E. Seiff, P.E.
Director of Technology
The Natural Gas Vehicle Coalition
1100 Wilson Boulevard, Suite 850
Arlington, VA 22209

Dear Mr. Seiff:

This is in response to your letter of January 3, 2001, in which you request an interpretation of the bonfire test procedures of Federal Motor Vehicle Safety Standard No. 304, "Compressed Natural Gas Fuel Container Integrity." The National Highway Traffic Safety Administration (NHTSA) recently amended these procedures, and you ask whether the new procedures specify both a horizontal and vertical test for compressed natural gas (CNG) fuel containers less than 1.65 meters in length, or only a horizontal test. The answer is the new procedures specify only a horizontal test for such containers.

In the past, Standard No. 304 did specify that CNG fuel containers less than 1.65 meters in length were tested in both the horizontal and vertical positions. However, on October 30, 2000, NHTSA amended the standard's bonfire test procedures. (65 FR 64624).

Now, under S8.3.2(a) of Standard No. 304, the CNG fuel container is positioned "in accordance with paragraphs (b) and (c) of S8.3.2." Paragraph (b) of S8.3.2 specifies that the CNG fuel container is positioned "so that its longitudinal axis is horizontal and its bottom is 100 mm (4 inches) above the fire source." (Emphasis added). Paragraph (c)(1) of S8.3.2 specifies that a CNG fuel container that is 1.65 meters (65 inches) in length or less is positioned "so that the center of the container is over the center of the fire source." Thus, taken together, paragraphs (b) and (c) of S8.3.2 specify that a CNG fuel container that is 1.65 meters in length or less is positioned so that its longitudinal axis is horizontal, its bottom is 100 mm above the fire source, and its center is over the center of the fire source.

The new bonfire test procedures do not specify that a CNG fuel container that is 1.65 meters in length or less is tested in the vertical position.

I hope you find this information useful. If you have any further questions regarding this matter, please feel free to contact Mr. Dion Casey in the Office of Chief Counsel at (202) 366-2992.

Sincerely,

John Womack
Acting Chief Counsel

ref:304
d.2/13/01

Mr. Frank Maloziec
Fiat Auto R&D U.S.A.
39300 Country Club Drive
Farmington Hills, MI 48331-3473

Dear Mr. Maloziec:

This responds to your letter requesting information on Federal Motor Vehicle Safety Standard No. 135, "Light Vehicle Brake Systems." Specifically, you ask whether your Electric Parking Brake (EPB) complies with Standard No. 135. The issues you raise are addressed below.

By way of background information, the National Highway Traffic Safety Administration (NHTSA) does not provide approvals of motor vehicles or motor vehicle equipment. Under 49 U.S.C. Chapter 301, manufacturers are required to ensure that their vehicles and equipment meet applicable requirements. The following represents our opinion based on the facts provided in your letter and subsequent telephone conversation with this office.

Paragraph S5.2 of Standard No. 135 provides: "Each vehicle shall be equipped with a parking brake system of a friction type with solely mechanical means to retain engagement." The term "parking brake" is defined in 49 CFR 571.3 as "a mechanism designed to prevent the movement of a stationary motor vehicle." Thus, the parking brake must prevent the movement of a stationary motor vehicle by means of friction. It also must have a "solely mechanical means to retain engagement," meaning that although the parking brake may be applied and released by non-mechanical means, it must be held by solely mechanical means. It cannot be held by non-mechanical means, such as fluid, air, or electricity.

In your letter, you state that the EPB "differs from the traditional mechanical parking brake mainly by the command used in applying the brake and the way the applied force is transmitted to the disc brakes." The EPB "can be engaged or disengaged by pushing a button fitted in the console." When the "electronic control unit (ECU) which manages the system receives an input command from the console mounted button, [it] gives a signal to the electric motors (one for each rear disc or as an alternate, one motor for both rear discs). The motors then apply the brake force via the calipers on the discs."

Since the EPB applies the brake force via calipers on the discs, it is of a friction type. In a conversation with Mr. Dion Casey of this office, you stated that although the EPB is actuated by

electrical means, it is retained by mechanical means. Additional information you submitted by fax on March 16, 2001, provided more details on the two design approaches under consideration. In that fax, you stated, "In the case of a non-reversible mechanism, the self-braking work gear itself guarantees the engagement of the parking brake. In the case of the reversible mechanism, it would be necessary to use a ratchet gear to lock the electric motor." It appears, therefore, that the EPB is "a parking brake system of a friction type with solely mechanical means to retain engagement," and would be permitted under the provisions of paragraph S5.2 of Standard No. 135.

In response to an analogous interpretation request from General Motors Corporation, we agreed that S5.2 of Standard No. 105 permits the parking brake to be applied and released by electrical or other non-mechanical means so long as the engagement is held by solely mechanical means. We interpret S5.2 of Standard No. 135 similarly.

I hope this answers your question. If you have any further questions regarding this matter, please contact Mr. Dion Casey at (202) 366-2992.

Sincerely,

John Womack
Acting Chief Counsel
ref:135
d.4/19/01

Mr. Paul Michelotti
PM Technology
2850 Banyan Blvd. Circle NW
Boca Raton, FL 33431

Dear Mr. Michelotti:

This is in reply to your letter of January 12, 2001, to Frank Seales, Jr., the former Chief Counsel of this agency.

You have asked whether "Federal Motor Vehicle Safety Standard No. 108 or any other federal regulation prohibit a hazard warning operating system that provides for automatic activation of vehicle hazard warning lights in an accident situation, in situations of rapid deceleration to a complete stop, or in situations of rapid deceleration in the speed of a vehicle over a short time interval?"

Tables I and III of Standard No. 108 require motor vehicles to be equipped with vehicular hazard warning signal operating units, as specified in SAE Recommended Practice J910, February 1966. Paragraph 1 of SAE J910 defines the operating unit, in part, as "a driver controlled device which causes all turn signal lamps to flash simultaneously." We interpret "driver controlled" as meaning that the hazard warning signal unit must be activated and deactivated by the driver and not by automatic means.

Sincerely,

John Womack
Acting Chief Counsel

ref:108
d.2/15/01

Mr. Davis Freeman
President
Intouch Shipping Technology, Ltd.
2410 Sherman Creek Road
Claire, WI 54703

Dear Mr. Freeman:

This responds to your letter of January 21, 2001. In that letter, you inquired as to how the Federal Motor Vehicle Safety Standards apply to your company's invention, the Trailer Pneumatic Inflation System (TPIS). As described in your letter, the TPIS is an "inflation system, which is available to inflate reusable air bags to cushion freight during shipment from one location to another." TPIS utilizes air from a tractor-trailer's air storage reservoir, normally used to provide reserve air for a trailer's air brake and air suspension systems. You indicate that the TPIS includes an air control unit, which would be connected to the air storage reservoir. The air control unit in turn supplies air to a coupler device. An air hose can then be connected to the coupler device to inflate air bags used for protecting cargo inside a trailer. Air from the hose would also be available for inflating or otherwise providing pressurized air to a wide variety of auxiliary components associated with the trailer, such as inflatable bags, pneumatic tools, tires, etc. You further indicate that the TPIS is equipped with several devices that prevent it from interfering with the function of the trailer brakes. Specifically, TPIS comes with a control valve so a user can shut the system off, and a brake protection valve, which you indicate would isolate the inflation system from the air storage reservoir in the event that the air pressure of the reservoir drops below a predetermined value.

With regard to TPIS, you ask three questions:

1) Will the TPIS comply with Federal Section 571.121, Air Brake Systems?

2) Are there any other federal standards, codes or regulations that will apply to the Trailer Pneumatic Inflation System TPIS?

3) Will TPIS comply with the other federal standards, codes, or regulations that apply?

By way of background information, Chapter of Title 49 of the United States Code (49 U.S.C. 30101 et.seq.) "Motor Vehicle Safety" authorizes this agency, the National Highway Traffic Safety Administration (NHTSA), to promulgate motor vehicle safety standards that specify performance requirements for new motor vehicles and items of motor vehicle equipment. One such standard is Standard No. 121, Air Brake Systems (49 CFR '571.121), which establishes performance and equipment requirements for braking systems on vehicles equipped with air brake systems, and applies to almost all new trucks, buses, and trailers equipped with air brake systems. The purpose of the standard is to ensure safe braking performance under normal and emergency conditions. In addition, since the TPIS would be installed into the existing pneumatic brake system of a vehicle, the provisions of Standard No. 106, Brake Hoses (49 CFR '571.106), which establishes requirements for motor vehicle brake hoses, brake hose assemblies, and brake hose end fittings, may also apply. If the TPIS 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 (49 U.S.C. ''30112(a)). 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 make 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 (49 U.S.C. '30122).

In addition, under Chapter 301, the TPIS would be considered an item of motor vehicle equipment. Your company, as a manufacturer of motor vehicle equipment, would be subject to the requirements of Chapter 301 concerning the recall and remedy of products with safety related defects. In the event that NHTSA or the product's manufacturer determines that a product that is an item of motor vehicle equipment contains a safety-related defect, the manufacturer is responsible for notifying purchasers of the defective equipment and remedying the problem free of charge (49 U.S.C. ''30118-30121).

NHTSA does not have any specific regulations relating to auxiliary inflators or air bags intended to cushion commercial cargo. However, since the TPIS system relies on the air supply also used to power trailer brakes, it could affect a vehicle's compliance with Standard No. 121. Based on our review of the materials provided with your letter, it appears that proper installation of the TPIS in an air brake system that otherwise meets the requirements of Standard No. 121, would not take the vehicle out of compliance with the standard.

Your letter indicates that the TPIS incorporates a valve that would isolate the TPIS system from the pneumatic brake system in the event of a loss of air pressure. It has been NHTSA's long-standing position that accessory air lines and end fittings, such as those used in your product, are "brake hoses" and "brake hose end fittings" only if a failure of the line or fitting would result in a loss of pressure in the vehicle's brake system.

Accordingly, if a failure of any of the accessory lines or fittings used with your product could result in a loss of pressure in the brake system, those hoses and fittings are subject to all the provisions of Standard No. 106. In this case, the Safety Act specifies that no person shall "manufacture for sale, sell, offer for sale, or introduce or deliver for introduction in interstate commerce, or import into the United States" any of those hoses or end fittings unless those hoses and end fittings comply with all of the applicable requirements in Standard No. 106.

One method used by vehicle manufacturers to protect the air system is to connect air accessories to a pressure protection valve that stops air flowing from a reservoir if there is a failure in the accessory. It may be preferable to sense loss of pressure or excess flow in the accessory line to activate the shut-off feature rather than permitting the reservoir to become partially depleted prior to activating the shut-off feature. The design of such systems may affect whether the accessory air lines are considered brake hoses, depending on the effects of failures in those hoses on the braking system. Therefore, some analysis of how your system affects the air brake system of a vehicle may be necessary to determine whether the accessory air lines are, in fact, brake hoses and whether suitable design features are provided in the event of a failure of the accessory system.

You also ask if there are other Federal standards or regulations that would apply to the TPIS. To the extent that your inquiry is confined to standards administered by this agency, there are no other NHTSA regulations or standards that would apply. Other federal standards, particularly those of the Federal Motor Carrier Safety Administration (FMCSA), may apply to the use of the TPIS on on-road vehicles. You may wish to contact the FMCSA Wisconsin Service Center at 567 D'Onofrio Drive, Suite 101, Madison, WI 53719-2814. The telephone number for this FMCSA office is (608) 829-7530.

In regard to your third question, this office is not in a position to offer any opinions about the compliance of the TPIS with any other Federal regulations, nor do we offer any opinion as to whether use of the TIPS is permissible under state law.

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

Sincerely,

John Womack
Acting Chief Counsel

ref:121
d.4/26/01

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:

John A. Hill has asked that we send our reply to you responding to his e-mails of January 4 and February 2, 2001, in which he asked for an interpretation of U.S. Federal laws as they relate to "HubLites." His e-mails have been supplemented by yours of March 5, 2001, to Taylor Vinson of this Office.

Mr. Hill explained that HubLites are "novelty lighting equipment," installed on the hubs of heavy trucks and trailers. It is equipment offered in the aftermarket and will "be retrofitted by truck owners themselves." In his opinion, HubLites do not interfere with any of the lighting equipment required under Federal Motor Vehicle Safety Standard No. 108. You have informed us that HubLites are steady-burning and "orange/amber" in color.

The installation of aftermarket lighting equipment under the laws of the United States is governed by 49 U.S.C. 30122, Making safety devices and elements inoperative. Essentially, this section prohibits manufacturers, distributors, dealers, and motor vehicle repair businesses from modifications that create a noncompliance with any Federal motor vehicle safety standard. However, Section 30122 does not include owners in the list of persons prohibited from making modifications. Mr. Hill has informed us that HubLites will be installed by truck owners. Thus, the prohibition would not appear to apply. However, the use of HubLites is subject to the laws of the individual states in which they are used, and we are unable to advise you on these.

We differ with Mr. Hill's unsupported conclusion that HubLites would not interfere with any of the lighting equipment required by Standard No. 108. The fact that a vehicle owner may legally modify his or her vehicle in a manner that would cause it to no longer comply with a Federal safety standard does not mean that it is wise to do so; in fact, it lowers the safety level of the vehicle. I would call your attention to a similar product which was the subject of an opinion letter from this Office of March 15, 1989, to Byung M. Soh. In that instance, the product was a self-lighting hub cap which included a motion-activated LED light whose intensity varied according to the speed of the vehicle. We stated our belief that "effectiveness [of some required lamps] may be impaired if the device created . . . confusion with the signal sent by another lamp," and that the hubcap light might cause "motorists to confuse its signal with the signal emitted by headlamps, stoplights, brakelights, taillights, side marker lamps, and other lighting devices." In our opinion, "such confusion is possible since your product is located on the wheels at approximately the same level as some of the lights required by Standard No. 108. This impairment of effectiveness would be especially likely if the hub cap lights were the same color (red, amber, or white) as the lights required by Standard No. 108." The previous two sentences apply equally as well to the factors of color and location of HubLites; they would not be permissible under Standard No. 108 as original equipment. Although a truck or trailer owner may install HubLites without violating Section 30122, this should not be interpreted or advertised as indicating U.S. "approval" of HubLites. We have no authority to "approve" or "disapprove" vehicles or equipment; we only advise as to the relationship of these products to the laws that we administer.

Mr. Hill asked if other Federal safety laws might apply. Trucks and trailers used in interstate commerce within the United States are subject to the regulations of the Federal Motor Carrier Safety Administration (FMCSA) of the Department of Transportation. We have asked the FMCSA whether HubLites would be prohibited by any of its regulations, and it has informed us that HubLites would not be allowable. Section 393.3 (49 CFR 393.3) of the FMCSA's safety regulations prohibit interstate motor carriers from using additional equipment and accessories if the use of such devices is inconsistent with that agency's regulations, or if the use of such devices decreases the safety of operation of the vehicles on which they are used. With respect to vehicles that it regulates, FMCSA concurs with the impairment conclusions that we have reached. Because 49 CFR 393.11 requires interstate motor carriers to maintain their vehicles to meet the requirements of Standard No. 108, and HubLites would not be permissible under Standard No. 108, HubLites may not be used on trucks and trailers used in interstate commerce and regulated by the FMCSA.

Mr. Hill also asked if there are any other Federal rules that the manufacturer of HubLites should be aware of in order to sell motor vehicle equipment in the United States, such as the need to have a registered agent (the product would be imported from New Zealand). HubLites are motor vehicle equipment. This means that Wheel Lighting Devices, Ltd. must designate an agent for service of process, as set forth in 49 C.F.R. 551.45, Service of process on foreign manufacturers and importers.

Additionally, you should be aware that as a manufacturer of motor vehicle equipment, you will be subject to the requirements of 49 U.S.C. 30118-30121 concerning the recall and remedy of motor vehicle equipment with defects related to motor vehicle safety. If either you or we determine that HubLites contain a defect related to motor vehicle safety, you as the manufacturer would be required to notify purchasers of the defect, and either repair HubLites so that the defect is removed, or provide a non-defective replacement. In either case, your company must bear the full expense of the remedy and cannot charge the owner for the remedy if the product was first purchased less than ten years before the notification campaign.

If you have any questions, you may email Taylor Vinson at tvinson@nhtsa.dot.gov.

Sincerely,

John Womack
Acting Chief Counsel
ref:108
d.4/12/01

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.