ID: 22692

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





Dear Mr. Gonneville:

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

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

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

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

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

Sincerely,

John Womack,
Acting Chief Counsel

ref:121
d.7/16/01

ID: 22701.ztv

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





Dear Mr. Strobel:

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

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

The system flashes one or both light rails in a yellow color to indicate, respectively, the direction of a turn or activation of the hazard warning system, a present feature of the system. When the brakes are applied, the light rails illuminate a steady-burning red, also a present feature of Flashers. When the turn signal is on and the brakes are applied, however, the light rail in the direction of the turn must flash yellow/off (as it appears to do on the tow truck), or illuminate in a steady-burning red, but not both, while the light rail on the opposite side remains a steady-burning red.

You have informed us that:

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

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

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

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

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

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

Sincerely,

John Womack
Acting Chief Counsel

ref:108
d.4/17/01

ID: 22705.drn

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





Dear Mr. Douglas:

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

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

The following provides the information you request.

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

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

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

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

Sincerely,

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

ID: 22717.ztv

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





Dear Herr Honauer:

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

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

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

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

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

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

Sincerely,

John Womack
Acting Chief Counsel

ref:571
d.5/23/01

ID: 22734.ztv.wpd

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





Dear Ms. Frohman:

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

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

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

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

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

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

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

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

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

Sincerely,

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

ID: 22750.ztv.wpd

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

Dear Mr. Matsumoto:

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

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

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

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

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

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

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

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

Sincerely,

Jacqueline Glassman
Chief Counsel

ref:571
d.7/25/03





---

[1] Letter to Mr. Joel Trim, September 27, 1993.

ID: 2281y

Mr. John G. Sims
Governmental Affairs
Champion Motor Coach, Inc.
5573 North Street
Dryden, Michigan 48428

Dear Mr. Sims:

This responds to your November 6, 1989 letter to Robert Hellmuth, Director of NHTSA's Office of Vehicle Safety Compliance (OVSC). In that letter, you stated that OVSC had misinterpreted and misapplied the requirements of S5.5.1 and S5.5.2 of Standard No. 217, Bus Window Retention and Release (49 CFR 571.217). I conclude that OVSC correctly interpreted those sections of Standard No. 217 and correctly applied those sections to your company's buses.

The buses in question are not school buses and have a gross vehicle weight rating of more than 10,000 pounds. For such buses, section S5.5.1 of Standard No. 217 provides that: "... each emergency door shall have the designation 'Emergency Door' or 'Emergency Exit' ... followed by concise operating instructions describing each motion necessary to unlatch and open the exit, located within 6 inches of the release mechanism."

Your company has designated the door immediately adjacent to the driver's seating position in these buses as an emergency exit. Operating instructions for that emergency exit are located within 6 inches of the release mechanism. However, the designation of this door as an emergency exit appears on a label located on a stanchion immediately behind the driver's seat, facing the passenger seating area. This designation does not appear within 6 inches of the release mechanism. You suggest that this arrangement complies with Standard No. 217, because S5.5.1 requires only the operating instructions, and not the emergency exit designation, to be located within 6 inches of the release mechanism.

I disagree with your suggestion. While it might be possible to construe the language of S5.5.1 in the manner you suggest, the agency has consistently interpreted S5.5.1 as requiring that both the emergency exit designation and the operating instructions be located within 6 inches of the release mechanism. Nothing in the correspondence you refer to undermines this conclusion. Contrary to the assertion in your letter, there is a clear safety basis for requiring the emergency exit designation to be within 6 inches of the emergency exit release mechanism. This ensures that any person reaching the exit can quickly find both the release mechanism and the instructions. In an emergency, persons are used to finding an emergency exit where they see a label with the designation "Emergency Exit." In your company's buses, a person seeing the emergency exit label located on the driver's seat stanchion could be misled into thinking that there is an exit somewhere behind the driver's seat, rather than at the driver's door, thus wasting valuable escape time. This is exactly the type of situation S5.5.1 is intended to prevent.

Your letter also suggests that requiring the emergency exit designation within 6 inches of the release mechanism would substantially reduce the visibility of the emergency exit sign, since the operating mechanism is frequently located below the shoulder level of seated passengers. While this may be true in some cases, I do not believe it would be likely to impede emergency egress. In an emergency situation, the occupants of the seat adjacent to the exit are likely to be the first ones out of the exit, and would thus no longer impede the visibility of the exit designation for other passengers seeking to exit.

We are only focusing on the designation here. Also, once it is open, the instructions aren't needed.

Your letter also suggests that the emergency exit requirements for school buses, contained in S5.5.3, support your interpretation of S5.5.1, because the school bus emergency exit requirements specifically authorize the separation of the emergency exit designation and operating instructions. I must again disagree with you on this point. NHTSA recognized the considerable differences between school buses and other buses when Standard No. 217 was being developed. S5.5.3 addresses a very different set of circumstances. School buses typically have one emergency door, located at or near the rear of the bus. The requirement in S5.5.3 that the designation be in letters at least two inches high "at the top of or directly above the emergency exit" is designed to ensure that school bus passengers will be able to locate this exit from any seating position in the bus. This is not the case for your company's buses, which feature several window exits located throughout the bus, in addition to the exit at issue here.

The second issue raised in your letter concerns the requirements of S5.5.2 of Standard No. 217. That section requires that emergency exit "markings" be visible to occupants in specified locations, under lighting and occupant visual acuity conditions set forth in S5.5.2. You suggested that the emergency exit "markings" referenced in S5.5.2 refers only to the designation of an exit as an emergency exit, and not to the operating instructions for that emergency exit. I disagree with this suggestion as well. As we noted earlier, S5.5.1 sets forth requirements for both emergency exit designations and emergency exit operating instructions. Immediately following these requirements, S5.5.2 specifies that "each marking shall be legible ..." (emphasis added). S5.5.2 nowhere draws any distinction between markings designating an exit as an emergency exit and markings setting forth operating instructions for the emergency exit. Neither is any such distinction inherent in the use of the term "marking." Accordingly, the ordinary meaning of the term "marking" and the background of this regulatory provision show that as used in S5.5.2, the word "markings" refers to both the emergency exit designation and the emergency exit operating instructions required by S5.5.1.

If you have any further questions concerning these issues, please feel free to contact David Greenburg of this office at (202) 366-2992.

Sincerely,

Stephen P. Wood Acting Chief Counsel

ref:217 d:l/26/90

ID: 2282y

Larry S. Snowhite, Esq.
Mintz, Levin, Cohn, Ferris,
Glovsky and Popeo, P.C.
1825 Eye Street, NW
Washington, DC 20006

Dear Mr. Showhite:

This replies to your letters asking for a determination "that the sale into the aftermarket as well as aftermarket installation of the Advanced Brake Light Device ('ABLD')...would not violate" any of this agency's statutes or regulations.

As you have described it, the ABLD "consists of a sensor attached to the accelerator pedal that senses the rate at which the foot releases the accelerator pedal. This signal is sent to a processor unit, which determines whether the brake lights should be turned on, and the duration of the illumination until the brake is applied. The ABLD is set so that the brake light will go off unless the brake is applied within one second of the ABLD's activation...." You believe that this avoids providing a misleading signal. You further indicate the manufacturer's willingness to alter the time interval if NHTSA's favorable opinion is required for it.

You have not defined the term "aftermarket", but we shall assume that you mean sales to vehicle owners of equipment for installation on their vehicles (as contrasted with sales to dealers for installation on new vehicles before their delivery). There is no Federal motor vehicle safety standard that applies to the system described in your letter. This means that there are no Federal restrictions upon the importation, manufacture, or sale of the ABLD. Under the National Traffic and Motor Vehicle Safety Act (specifically, l5 U.S.C. 1397(a)(2)(A)), as you surmise, modifications to vehicles by a person other than the vehicle owner are permissible as long as they do not "render inoperative, in whole or in part, any device...installed on...a motor vehicle...in compliance with an applicable Federal motor vehicle safety standard...."

The essential question then is whether the installation of the ABLD renders partially or wholly inoperative the vehicle's stop lamps. As you know, in our interpretations on lighting equipment, we have noted a close relationship between the statute's rendering inoperative prohibition for the aftermarket with the standard's impaired effectiveness prohibition for supplementary original equipment. Primarily, maintaining that relationship is done in order to avoid regulatory inconsistency with interpretations under which installation of an item of aftermarket equipment might be deemed acceptable under the National Traffic and Motor Vehicle Safety Act, while its installation as original equipment would violate Standard No. l08.

There are two types of supplementary original, or aftermarket, lighting equipment: those that operate independently of the lighting equipment that Standard No. l08 requires, and those that operate in connection with that equipment. A separate red rear fog lamp would be an example of the former. The ABLD is an example of the latter, because it has a direct effect upon the operation of the stop lamp.

An aftermarket device that has an effect upon the operation of required lighting equipment cannot be deemed permissible unless that effect is consistent with the operation and purpose of the required equipment. As you stated, the SAE defines a stop lamp as one whose function indicates "the intention of the operator of a vehicle to stop or diminish speed by braking". You have argued that "The ABLD is consistent because it "clearly and unambiguously indicates" an operator's intent to apply the brake. Your client, however, does not make that claim for the ABLD; it concedes that "there will be circumstances in which the brake will not be engaged after the ABLD is activated."

The heart of our concern is that while the standard requires the stop lamp to operate in only one particular circumstance, the ABLD causes the stop lamp to operate at an earlier time when the lamp is supposed to be unlighted. Further, the ABLD's activation of the stop lamp indicates only that the operator has released the accelerator. It does not necessarily follow that the brake pedal will later be applied. Under this fact situation, the stop lamps fulfill a purpose other than for which they are installed. This can only create the potential for confusion and dilution of the effectiveness of the stop signal. For the reasons stated above, we have concluded that installation of the ABLD in the aftermarket would render the stop lamps partially inoperative. Because this conclusion does not depend upon whether the ABLD would be acceptable using the different parameters of performance to which it is apparently capable of being adjusted, there appears to be no reason to discuss this matter with you before completion of this interpretation, which would further delay our response.

We would like to discuss several other points. You have stated that "Illuminations of the brake lights for one second or less occur frequently during normal driving without the ABLD", and have sought to allay our concerns with the manufacturer's willingness to reduce the stop lamp activation time from one second to something less if that is required for a favorable interpretation. You have also provided information that the ABLD comes into operation only when the foot is released from the pedal at a rate consistent with an intent to apply the brake, as in an emergency situation.

While we appreciate these arguments, we do not find them persuasive. The short periods of illumination to which you refer are occasioned by application of the brake pedal, no matter how brief that application is. The offer to reduce the activation time of the ABLD if it is not followed by a brake application would reduce but not eliminate stop lamp activation for purposes other than to indicate a stop or diminished speed. As for foot-movement time, there appears to be no indication in the University of Michigan study that you submitted that the ABLD was activated in traffic emergencies. The foot-movement time measurements seem consistent with removal of the foot from the accelerator under ordinary traffic situations, and thus there should have been no instances of ABLD activation.

Your most recent letter contained a copy of a report of an independent field study of the ABLD in Israel, which "found that rear-end accidents were reduced by 75 percent." However, the report states that the ABLD-equipped vehicles ("except a few") were also equipped with center high-mounted stop lamps. Since any reductions in rear-end accidents that were experienced by the test fleets cannot be attributed solely to the ABLD, the data must be viewed as inconclusive.

The acceptability for use of the ABLD must also be determined under the laws of the individual States. We are unable to advise you on these laws, and suggest that you get in touch with the American Association of Motor Vehicle Administrators (AAMVA) for further advice. Its address is 4600 Wilson Boulevard, Arlington, VA 22203.

Sincerely,

Stephen P. Wood Acting Chief Counsel

ref: VSA d:l/25/90

ID: 22837ogm

Mr. James Arnold
MAC Trailer Manufacturing Inc.
14599 Commerce Street
Alliance, OH 44601

Dear Mr. Arnold:

This responds to your request for an interpretation of Federal Motor Vehicle Safety Standard (FMVSS) No. 121, Air Brake Systems (49 CFR 571.121). You indicate that your company manufactures truck trailers for highway use. Your letter further indicates that a number of your dealers have asked that your company produce trailers equipped with a certain item of equipment to satisfy the antilock brake systems (ABS) requirements of FMVSS No. 121. The device in question, marketed by its manufacturer Air Brake Systems, Inc. (ABS, Inc.) as the MSQR-5000, is described in promotional material from ABS, Inc. as a "Differential Pressure Regulator Quick Release Valve." You have also attached a document from ABS, Inc. that contains a number of representations relating to the ABS requirements of FMVSS No. 121 and concludes as follows:

Air Brake Systems Inc. hereby certifies that the MSQR-5000^TM anti-lock brake system fully satisfies the definition of anti-lock brakes as required by 49 CFR 571.121 and exceeds the performance requirements of 49 CFR 30113(b)(3)(B)(ii). (Warning light excluded thereto.) ABS Brakes, Inc. Mt. Pleasant, MI 48858 USA

Based on the aforementioned materials, you ask if a trailer equipped with the MSQR-5000 "system" installed as means of meeting ABS requirements would meet the requirements of FMVSS No. 121.

By way of background information, the National Highway Traffic Safety Administration (NHTSA) does not provide approvals of motor vehicle or motor vehicle equipment. Under the National Traffic and Motor Vehicle Safety Act, it is the responsibility of the manufacturer to ensure that its vehicles or equipment comply with applicable safety standards. With certain exceptions related to special configurations, FMVSS No. 121 applies to vehicles - trucks, buses, and trailers - with air brake systems.

As an equipment manufacturer, ABS, Inc., is not required to certify compliance of its product to FMVSS No. 121, but any vehicle manufacturer would be required to certify that its vehicle complies with all the requirements of FMVSS No. 121. It is not uncommon for a vehicle manufacturer to request information from an equipment manufacturer. However, the responsibility for compliance with FMVSS No. 121 and for certification of compliance rests with the vehicle manufacturer. As we have stated before, it is our opinion that reliance by a vehicle manufacturer solely on "certification of compliance" provided by an equipment manufacturer, without more, is not legally sufficient. Moreover, should it be determined that a vehicle does not comply with a Federal motor vehicle safety standard or contains a defect, the recall and remedy obligations of the National Traffic and Motor Vehicle Safety Act would fall upon the vehicle manufacturer and not the equipment manufacturer which supplied particular equipment. See 49 CFR Part 579. Possible liability in tort under state law could fall upon both the vehicle manufacturer and the equipment manufacturer. A private attorney could advise you about this possibility.

The following represents our opinion based on the facts presented in your letter, the attachments provided with your letter and agency review of other data obtained from ABS, Inc.

In marketing and selling the MSQR-5000, ABS, Inc., has represented, in advertisements, promotional materials and in direct contact with potential customers, that the MSQR-5000 is an ABS whose installation in a vehicle will result in the vehicle meeting the ABS requirements of FMVSS No. 121 (49 CFR 571.121). The configuration of the MSQR-5000 and the fact that the device has no electrical or electronic components has apparently led some potential customers of ABS, Inc. to ask NHTSA if the MSQR-5000 is a device which, if installed on a vehicle, would allow that vehicle to meet the ABS requirements of FMVSS No. 121. As discussed below, based on a review of the promotional materials describing the device and the principles involved in its operation, it is NHTSA's view that the installation of the MSQR-5000 alone would not allow a vehicle to meet FMVSS No. 121's ABS requirement.

Among other things, FMVSS No. 121 requires that trailers (S5.2.3) and trucks (S5.1.6) be equipped with an ABS. For the purposes of FMVSS No. 121, ABS is defined in S4 of the standard as follows:

Antilock brake system or ABS means a portion of a service brake system that automatically controls the degree of rotational wheel slip during braking by:

(1) Sensing the rate of angular rotation of the wheels;

(2) Transmitting signals regarding the rate of wheel angular rotation to one or more controlling devices which interpret those signals and generate responsive controlling output signals; and

(3) Transmitting those controlling signals to one or more modulators which adjust brake actuating forces in response to those signals.

In addition, in order to ensure that vehicle owners and operators have knowledge of the status of an ABS system installed on a truck, truck tractor or trailer, FMVSS No. 121 also contains extensive and detailed requirements for malfunction indicators that illuminate a light when the ABS is not working properly. These requirements, found in S5.1.6.2, S5.1.6.3 and S5.2.3.2, specify that a truck, truck tractor or trailer must have an electrical circuit that is capable of signaling a malfunction in the vehicle's antilock brake system, and must have the means for connection of this antilock brake system malfunction signal circuit to a trailer or towing vehicle. Such a signal must be present whenever there is a malfunction that affects the generation or transmission of response or control signals in the antilock brake system. The signal must remain present as long as the malfunction exists, whenever power is supplied to the antilock brake system, and each message about the existence of such a malfunction must be stored in the antilock brake system whenever power is no longer supplied to it.

The ABS requirements of FMVSS No. 121 were incorporated into the standard by a final rule published in the Federal Register on March 10, 1995 (60 FR 13216). In the preamble to that final rule, the agency noted that 10 to 15 percent of heavy combination vehicle crashes involved braking induced instability or loss of control. These crashes resulted in significant property damage, injury and loss of life. In order to address the safety consequences of braking related instability, NHTSA amended FMVSS No. 121 to require effective antilock braking systems.

One of the primary considerations in developing the new requirements was what, at a minimum, an antilock braking system must do in order to prevent or reduce crashes. The agency determined that due to the wide range of surfaces a vehicle may encounter in normal use, an effective ABS system must have the ability to determine if and when a braked wheel is momentarily locked as it passes from high to low traction conditions. Because of such varying conditions, the agency determined that any effective ABS must be a "closed loop" system - i.e., a system that continuously monitors the rate of wheel rotation, adjusts that wheel rotation when needed and reacts to ongoing changes in rotation caused by the operation of the system, changing road surfaces or both (60 FR 13217). Similarly, NHTSA determined that warning light requirements that established a minimum level of safety were also important for reducing crashes, deaths and injuries. The warning light requirements would inform operators of an ABS malfunction and both facilitate and encourage repairs of faulty ABS systems (60 FR 13244).

The MSQR-5000 appears to lack one or more features that an ABS must have to meet FMVSS No. 121. Based on literature provided to us, the MSQR-5000 does not seem to have any means of automatically controlling wheel slip during braking by sensing, analyzing, and modulating the rate of angular rotation of a wheel or wheels. The components identified and described in the MSQR-5000 promotional materials do not have a means for measuring wheel rotation, recognizing wheel lockup, controlling or modulating brake pressure to a locked wheel, or preventing one or more wheels from locking if a driver applies maximum brake pressure to the system. Therefore, standing alone, the MSQR-5000 does not satisfy the definition of ABS as set forth in FMVSS No. 121.

In addition, the MSQR-5000 also appears to lack any provision for illuminating a warning light providing notification of an ABS malfunction. In fact, the materials distributed by ABS, Inc., including the "Certification of Compliance, "indicate that the company believes that the ABS warning light requirements of FMVSS No. 121 are "excluded"by virtue of a decision issued by the United States Court of Appeals for the 10^th Circuit in the case of Washington v. Department of Transportation, 84 F.3d 1222 (1996).

The Washington case involved a challenge to the validity of FMVSS No. 121's ABS requirements on two grounds - that the requirements conflicted with existing Federal Highway Administration regulations governing motor carriers and that NHTSA exceeded its authority in issuing the rule by establishing that an ABS must have certain characteristics. Mr. Washington argued that the requirement that an ABS have certain minimum characteristics unduly restrained design choices. The Court of Appeals ruled in favor of NHTSA in regard to both of these claims. Moreover, while the Court's decision discussed the fact that manufacturers may apply for an exemption from an existing standard or petition the agency to modify an existing standard, the decision did not provide for any such exemption or "exclusion"for ABS, Inc., or any other manufacturer. The claims now made by ABS, Inc. - that the ABS warning light requirements of FMVSS No. 121 were "excluded,"or that ABS, Inc. is exempt from meeting this requirement - are incorrect. Similarly, any assertion that the Court of Appeals found that FMVSS No. 121 unduly restricted design choices is in error.

If you have any questions, please contact Otto Matheke of my staff at (202) 366-5253.

Sincerely

John Womack
Acting Chief Counsel

ref.121
d.6/4/01

Addendum: 09/26/01

At the request of Air Brake Systems, Inc. ("ABS, Inc."), the opinions stated in the foregoing letter are under further consideration by the agency, based, in part, on additional materials that ABS, Inc. has provided, or may submit, to the agency in the near future. The agency is now undertaking further review, after which NHTSA will, if appropriate, issue a revised interpretation to MAC Trailer.

ID: 2283y

Tracey Powell
Legislative Coordinator
Government Relations
American Motorcyclist Association
P.O. Box 6114
Westerville, OH 43081-6114

Dear Tracey Powell:

This is in reply to your letter of November l4, l989, with respect to existing prohibitions in some States against the use of modulating headlamps on motorcycles. The apparent basis of the prohibition is that flashing lamps are generally reserved for emergency vehicles. You point out the distinction that Standard No. l08 makes between the two types of headlamps, and ask our "assistance in attaining uniform recognition of the legal use of modulating headlights through the United States . . . ."

As you note, there is a legal distinction in Standard No. l08 between a modulating headlamp (one that goes from a higher to a lower intensity within either the upper or lower beam) and a flashing one (one that goes from either the upper or lower beam to off). Further, section S5.6.1 of Standard No. l08 provides that "A headlamp on a motorcycle may be wired to modulate." The authority of States to regulate this aspect of motorcycle lighting is constrained by section l03(d) of the National Traffic and Motor Vehicle Safety Act (l5 U.S.C. 1392(d)). This section provides in pertinent part that:

[w]henever a Federal motor vehicle safety standard . . . is in effect, no State. . . shall have any authority either to extablish, or to continue in effect, with respect to any motor vehicle. . . any safety standard applicable to the same aspect of performance of such vehicle. . . which is not identical to the Federal standard."

The effect of this provision of the Safety Act with respect to lighting is to expressly prohibit a State from enacting a law that forbids a manufacturer from installing headlamp modulators on motorcycles.

I hope that this responds to your concerns.

Sincerely,

Stephen P. Wood Acting Chief Counsel / ref:VSA#l08 d:2/l/90