ID: 19663.DRN

The Honorable Lee Terry
U.S. House of Representatives
Washington, DC 20515-2702

Dear Congressman Terry:

Thank you for your letter forwarding correspondence from Ms. Gina Dunning, former Director of the Nebraska Department of Health and Human Services, Regulation and Licensure. Your letter was forwarded to my office for reply, because the National Highway Traffic Safety Administration (NHTSA) administers the Federal school bus safety program.

Ms. Dunning wrote to you with concerns about a NHTSA regulation affecting child care centers and Head Start programs. In essence, Ms. Dunning was concerned that we have interpreted our statute to disallow dealers' sales of certain new buses to after school care programs that will significantly use the bus to transport school children "to or from school or an event related to school." The buses are those that are not certified as meeting NHTSA's school bus standards.

Ms. Dunning has written a separate letter to me, expressing her concern about our interpretation and how it would affect child care transportation providers in Nebraska. Her letter to me is substantially similar to the letter she addressed to you. While we understand that Ms. Dunning is no longer the Director of the state agency, we responded to her successor, Mr. Richard Nelson, on March 25, 1999. I am enclosing a copy of my response for your information, with all referenced enclosures.

I hope that the enclosed items are helpful. If you have any further questions, please feel free to contact me.

Sincerely,
Frank Seales, Jr.
Chief Counsel
Enclosures
ref:VSA#571.3
d.4/14/99

ID: 19664.ztv

Mr. Ron Dawson
4224 Quince Road
Portsmouth, VA 23703

Dear Mr. Dawson:

This is in reply to your e-mail of March 3, 1999, telling us that you are preparing a business plan to produce a new kit car. You have asked about our policy regarding kit car manufacturing, and, specifically, the Federal motor vehicle safety standards (FMVSS) that apply to a kit car manufacturer.

Under your plan, you would sell "all necessary parts required to formulate an automobile except for engine and gear box." These parts would be new. You would sell the kit of parts "in any stage of assembly from a box of unassembled parts to a completely assembled automobile minus engine and gearbox." The purchaser of the kit would provide "a previously owned or used engine and gearbox." The purchaser would assemble, or complete assembly of, the vehicle. The vehicle would be for personal use, on public roads, and not for resale.

We have no regulations that apply per se to the manufacture of kit cars. However, a seller of motor vehicle equipment is subject to the statutory requirement that the equipment item must conform to all applicable FMVSS, if any are in effect that cover the equipment item. We find that, generally, equipment manufactured in the United States is certified by its manufacturer as conforming to applicable FMVSS. The items of passenger car motor vehicle equipment that are the subject of specific Federal motor vehicle safety standards are brake hoses (FMVSS No. 106), items of lighting equipment (FMVSS No. 108), pneumatic tires (FMVSS No. 109), brake fluids (FMVSS No. 116), non-pneumatic temporary spare tires (FMVSS No. 129), glazing materials (FMVSS No. 205), and seat belt assemblies (FMVSS No. 209).

This equipment is required to be marked with a DOT symbol as a certification of compliance (alternatively, the containers of lighting equipment other than headlamps may bear a certification statement). Therefore, you may rely upon this certification, unless NHTSA or the manufacturer has determined that a noncompliance exists.

We have encountered compliance problems from time to time with equipment manufactured outside the United States, particularly lighting equipment. Were you to import noncomplying equipment for a kit, we would regard you as the manufacturer of the equipment and responsible for notifying purchasers and remedying the noncompliance through repurchase of the equipment, or replacing it with a complying item, at no expense to the owner, even if the equipment were certified. You would also be liable for civil penalties for importing and selling noncomplying equipment if it is not certified. If the noncomplying equipment is certified, you would not be liable for a penalty unless you actually knew the equipment was noncompliant.

You may assemble the vehicle up to the point of installation of its power train without becoming its manufacturer. However, if you decided to furnish an engine and transmission with the kit, we would consider you the manufacturer and responsible for the vehicle's noncompliance with all applicable FMVSS, and certifying compliance, even though the vehicle would be assembled by another person. In the situation you describe, in which you do not furnish the engine and transmission, the person installing the engine and transmission, whether the kit purchaser or a commercial entity such as a repair facility, would be regarded as the manufacturer of the vehicle, and responsible for its compliance with the FMVSS. The fact that the kit car may be equipped with a used transmission and engine is not sufficient to relieve it of the legal necessity to comply with all FMVSS that apply to motor vehicles manufactured from all new parts.

Of course, the kit car must meet all State and local requirements in order to be registered and operated.

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

Sincerely,
Frank Seales, Jr.
Chief Counsel
ref:VSA
d.3/29/99

ID: 19666.ztv

Ms. Karen Coffey
Chief Counsel
Texas Automobile Dealers Association
P.O. Box 1028
Austin, Texas 78767-1028

Dear Ms. Coffey:

We are replying to your letter of February 22, 1999, with respect to the R.E.D. - Alert product. You have asked that we review this product for compliance with the Federal motor vehicle safety standards.

The R.E.D. - Alert causes the center highmounted stop lamp to flash when the service brakes are applied, for a "predetermined duration," after which the lamp becomes steady burning. You refer to a letter of July 19, 1995, from the National Highway Traffic Safety Administration Administrator, Dr. Ricardo Martinez, to Mr. Shih-Chiang Chen, advising that the center lamp must be steady burning. This letter also advises that, after a vehicle is sold, Federal law prohibits certain specified entities from modifying the center lamp to cause it to flash, but that the vehicle owner is not precluded from installing the sensor.

Dr. Martinez's letter correctly states the law as it applied then and as it applies now. Federal Motor Vehicle Safety Standard No. 108 Lamps, Reflective Devices and Associated Equipment (49 CFR 571.108) requires all lamps to be steady burning in use, other than turn/hazard warning signal lamps and school bus warning lamps (headlamps and front side marker lamps may be flashed automatically as signals). See S5.5.10. Installation of the R.E.D.-Alert would create a noncompliance with Standard No. 108. A dealer in new vehicles is not permitted to knowingly sell a vehicle that fails to conform with all applicable Federal motor vehicle safety standards.

After a vehicle is sold, 49 U.S.C. 30122 prohibits a manufacturer, distributor, dealer, or repair business from making inoperative safety equipment installed in accordance with a Federal motor vehicle safety standard. Although the sale of the R.E.D. - Alert is not prohibited by Federal law, its installation on a vehicle after the vehicle's first sale would have the effect of causing the center stoplamp to operate in a manner other than designed, a "making inoperative" within the intent of the prohibition. Although 49 U.S.C. 30122 does not include a vehicle owner, safety is not served by modifications that depart from an original state of compliance, and we strongly encourage vehicle owners not to modify their vehicles so that they no longer conform to the safety standards that they originally met.

We are not conversant with Texas motor vehicle law. Texas may have a specific prohibition against flashing stop lamps that parallels S5.5.10 of Standard No 108, as a state is permitted to do by 49 U.S.C. 30103(b). To the extent that Texas law permits, or, if silent, is interpreted as permitting flashing stop lamps, we would regard that law or interpretation as impermissible under sec. 30103(b) which requires state standards to be identical to the Federal motor vehicle safety standards where both cover the same aspect of performance.

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.4/1/99

ID: 19679.ztv

Mr. Stan R. Gornick, P. Eng.
Corporate Manager, Compliance & Recall
Orion Bus Company
P.O. Box 449
Oriskany, NY 13424

Dear Mr. Gornick:

This responds to your letter of March 2, 1999, to Taylor Vinson of this Office, requesting an interpretation of S5.5.4 of Federal Motor Vehicle Safety Standard No. 108.

You have described a "multiplexing vehicle wiring system" designed for transit buses manufactured by Orion Bus Company. Under this design, the system goes into "sleep mode" 15 minutes after the bus is "shutdown and parked." In the sleep mode, only the hazard warning lamps can operate. Remaining lamps are able to operate only when the bus is taken out of sleep mode by use of a "Master Power Switch."

S5.5 of Standard No. 108 is titled "Special wiring requirements," and establishes how certain vehicle lamps shall be wired to operate. S5.5.4 of Standard No. 108 requires that "The stop lamps on each vehicle shall be activated upon application of the service brakes." This means that stop lamps shall be wired to operate when the service brakes are applied. When a bus is in the sleep mode, depression of the brake pedal will not activate the stop lamps. You have asked if this is a noncompliance with Standard No. 108, and report that Rich Van Iderstine of the Office of Safety Performance Standards believes that it may be.

We have discussed this matter with Mr. Van Iderstine and have concluded that the multiplexing design, as you have described it, does not create a noncompliance with Standard No. 108. Service brakes are applied to slow or halt a moving vehicle. When a bus is parked and its electrical system is in the sleep mode, the service brakes serve no function. In this situation, we do not view depression of the brake pedal as an "application" of the service brakes, because depression of the pedal does not initiate a braking function. Therefore, the fact that the stop lamps do not activate when the brake pedal is depressed, when the bus is in the sleep mode, does not create a noncompliance with S5.5.4.

However, this interpretation does not extend to other situations where a vehicle may be at rest and the brake pedal is applied. For example, a driver of a vehicle stopped at a traffic signal may need to apply the service brakes to prevent inadvertent motion of the vehicle. Depression of the brake pedal in this instance initiates a braking function and therefore the stop lamps must activate, as required by S5.5.4.

If you have any questions, you may call Taylor Vinson at 202-366-5263.

Sincerely,
Frank Seales, Jr.
Chief Counsel
ref:108
d.3/19/99

ID: 19699.ztv

Mr. Tadashi Suzuki
Manager
Automotive Equipment
Legal & Homologation Sect.
Stanley Electric Co., Ltd.
2-9-13, Nakameguro, Meguro-ku
Tokyo 153-8636
Japan

Re: Motorcycle Headlamp Arrangement

Dear Mr. Suzuki:

This is in reply to your letter of March 10, 1999, pointing out an inconsistency between our letter to you of February 22, 1999, and preamble language to a 1996 amendment of Federal Motor Vehicle Safety Standard No. 108.

The issue is the measurement of photometrics in two-lamp motorcycle headlamp systems: whether the photometric performance of Figure 32 is applied to each headlamp, or to the combined output of both headlamps. Our first interpretation on this subject was provided to M. Iwase of Koito Manufacturing Co., who asked us about the measurement of photometrics in a two-lamp motorcycle headlamp system. We informed Mr. Iwase on November 29, 1985, that:

The fact that the combined maximum value of your system exceeds 75,000 candlepower [for upper beam] is permissible as long as the individual lamps themselves do not exceed 75,000 candlepower.

We confirmed this interpretation in the preamble of the 1996 amendment to Standard No. 108 adopting a new photometric standard for motorcycle headlamps (61 FR 45359). There we said that:

When a motorcycle is equipped with a two-lamp headlamp system, there is no summing of test point values in determining compliance. Each headlamp for use on a motorcycle must comply with specified photometrics for a single lamp, and not as a system of two headlamps.

Thus, the maximum values apply to a single headlamp, and not the system of two headlamps as [Koito and Suzuki] appear to believe" (at 45360).

However, our letter of February 22 informed you that "a [motorcycle headlamp] system of the type described in subparagraph (b) of S7.9.6.2 [a two-lamp system] is not intended to have twice the light output of systems described in S7.9.6.2(a) or S7.9.6.2(c)," which you interpret as contrary to our previous interpretations. You ask that we seek public comment if it is our intent to adopt "one photometric performance for each motorcycle."

We appreciate your calling this matter to our attention. We agree that our interpretation is incorrect and withdraw that portion of our letter of February 22 that is inconsistent with prior interpretations. A conflict appears to arise in the context of a motorcycle headlamp system permitted by S7.9.6.2(b), a two-lamp system in which each lamp contains an upper beam light source, or each lamp contains a lower beam light source. This system could produce total beam photometrics of twice the light output of a single beam system (S7.9.6.2(a)or S7.9.6.2(c)). The edges of luminous lens areas of headlamps meeting S7.9.6.2(b) must be no more than 8 inches apart when they are mounted horizontally, and our remarks in our letter of February 22 reflected our concern that this may be an insufficient distance to prevent glare arising from two beams, especially from the lower beam when other drivers are in close proximity. If you intend to produce a two-headlamp system with two full-intensity upper or lower beams, please keep in mind our safety concerns about glare.

We intend to study this question in the coming months as part of a petition from the Japanese Automotive Parts Industry Association, and would appreciate any data you may have on this subject.

Sincerely,
Frank Seales, Jr.
Chief Counsel
ref:108
d.9/29/99

ID: 1969truck

Mr. John Dunn
1392 Webb Rd. Apt. 28
Lakewood, OH 44107

Dear Mr. Dunn:

This is in response to your recent inquiry regarding requirements for seat belts in light trucks. Specifically, you ask if Federal regulations required 1969 model year pickup trucks to be equipped with seat belts. The answer to your question is no.

Some background information about our agency may be helpful. The National Highway Traffic Safety Administration (NHTSA) is authorized under Title 49, Chapter 301 of the U.S. Code to issue Federal motor vehicle safety standards that set performance requirements for new motor vehicles and new items of motor vehicle equipment. Federal law prohibits the manufacture or sale of any new motor vehicle or new item of motor vehicle equipment which does not conform to all applicable Federal motor vehicle safety standards.

One of the standards that NHTSA has issued is Standard No. 208, Occupant Crash Protection (49 CFR 571.208), which specifies occupant protection requirements based on vehicle type and seating position within the vehicle. The requirements for trucks with a GVWR of 10,000 pounds or less, which have since been amended, originally required that trucks in this weight category manufactured on or after July 1, 1971, must be equipped either with an automatic occupant protection system or a Type 1 (lap) or Type II (lap and shoulder) seat belt at each designated seating position. As your 1969 model year truck was built before January 1, 1972, it was not required to have seat belts at any seating position.

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,
Frank Seales, Jr.
Chief Counsel
ref:208
d.10/21/99

ID: 19710.nhf

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

Dear Mr. Babirad:

This responds to your letter requesting information regarding the modification of a 1994 Ford E-150 full size van with a lowered floor for a driver with quadriplegia. You explain that the driver was evaluated and trained by a driver rehabilitation specialist who prescribed a high-tech steering system that incorporates a reduced diameter steering wheel and reduced effort steering. Specifically, you request permission to remove the original equipment manufacturer's (OEM) steering column and steering wheel so that you may install the high tech steering system to accommodate the driver's restricted strength and range of motion.

This letter provides the relief you seek. The National Highway Traffic Safety Administration (NHTSA) will not institute enforcement proceedings against a commercial entity that 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. 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.

Replacing the vehicle's original steering column and steering wheel and removing the driver's air bag could affect compliance with three standards: Standard No. 203, Impact protection for the driver from the steering control system, Standard No. 204, Steering control rearward displacement, and Standard No. 208, Occupant Crash Protection. For example, 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. Removing the air bag would affect the vehicle's compliance with Standard No. 208. However, as noted above, in situations such as this one 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. As I have already noted above, NHTSA will not institute enforcement proceedings against a business that modifies the steering column, 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 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, we urge the owner to advise the purchaser that the vehicle has been modified and consider reinstalling the removed safety equipment if appropriate.

You may be interested to know 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 only for certain standards, including Standard No. 208, and under certain conditions. 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 published a notice of proposed rulemaking on September 28, 1998, in the Federal Register and are in the process of reviewing public comments.

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.7/1/99

ID: 19744.drn

Peggy A. Ford, Esq.
Vice President and General Counsel
La Petite Academy
14 Corporate Woods
8717 W. 110^th St., Suite 300
Overland Park, KS 66210

Dear Ms. Ford:

This responds to your request for an interpretation of "'preschooler,' including the age group which is considered 'preschooler.'" The term "pre-school" is used in the National Highway Traffic Safety Administration's (NHTSA) February 1999 Guideline for the Safe Transportation of Pre-school Age Children in School Buses.

For purposes of the Guideline, we use the term "pre-school" as it is defined in the Random House Compact Unabridged Dictionary, Special Second Edition, 1996: "of, pertaining to or intended for a child between infancy and school age." Thus, as defined in the Random House Dictionary, "pre-school age" or "pre-schooler" would refer to a "child below the official school starting age, usually a child up to age five."

I hope this information is helpful. I am enclosing a copy of NHTSA's Guideline for the Safe Transportation of Pre-school Age Children in School Buses. For more information about the safety features of a school bus, I am enclosing NHTSA's publication: "School Bus Safety: Safe Passage for America's Children." If you have any further questions about the Guideline, please contact Ms. Diane Wigle of NHTSA's Office of Traffic Safety Programs by telephone at (202) 366-4301.

Sincerely,
Frank Seales, Jr.
Chief Counsel
Enclosures
ref:VSA#571.3
d.4/7/99

ID: 19751.wkm

Mr. Barry McManus
Vice President
Klein Products, Inc.
Post Office Box 3700
Ontario, CA 91761

Dear Mr. McManus:

This responds to your letter of March 17, 1999, to Walter Myers of my staff and to your telephone conversation with Mr. George Soodoo of this agency on March 22, 1999. You asked whether one of the products your company produces, a trailer-mounted water tower called the Klein Porto-Tower® (KPT), is required to be equipped with an antilock brake system (ABS). The answer is no.

You stated that the KPT is a trailer-mounted water tank that is utilized at construction sites where it is elevated into position, then filled with water to supply water trucks and wagons working at the site. The KPT is always transported empty when being moved over the highway, and filled only at the job site. You advised Mr. Soodoo that the empty weight of the KPT is its gross vehicle weight rating (GVWR) of 20,000 pounds, that the vehicle is equipped with an axle system rated at 22,000 pounds, and that when filled with water, the KPT weighs approximately 120,000 pounds. Thus, it can only be transported while empty because the axle system is inadequate to support the KPT when filled with water, and the tires and brakes are not sized for such a load. You stated that you have been equipping your KPT with ABS, while your competitors have not, which puts you at a competitive disadvantage. Finally, you stated that in reviewing Federal Motor Vehicle Safety Standard (Standard) No. 121, Air brake systems (49 Code of Federal Regulations 571.121), you believe that the KPT is exempt from the ABS requirements of Standard No. 121 by virtue of paragraph S3(f).

Paragraph S3(f) of Standard No. 121 excludes from the requirements of the standard "any trailer that has an unloaded vehicle weight which is not less than 95 percent of its GVWR, . . ." Thus, since the GVWR and the empty weight of the KPT are the same, and since the KPT is filled only when being used at work sites and is always completely emptied before being transported, it is excluded from the requirements of Standard No. 121, including the ABS requirements, by virtue of paragraph S3(f).

I hope this information is helpful to you. Should you have any further questions or need additional information, feel free to contact Mr. Myers 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.4/7/99

ID: 19753.wkm

Mr. Anthony DeFilippo
Goodyear Tire & Rubber Company
Attn: DOT LAB
#1 Goodyear Boulevard
Lawton, OK 73505

Dear Mr. DeFilippo:

This responds to your inquiry, telefaxed to this office on March 18, 1999, seeking our approval for your proposed modification of the bead unseating fixture currently depicted in Figure 1, Bead Unseating Fixture, of Federal Motor Vehicle Safety Standard (Standard) No. 109, New pneumatic tires.

You would like to modify the test fixture so that you would have more flexibility to test tires of very different sizes. You state that you produce very large tires for vehicles such as the Plymouth Prowler and the Chevrolet Corvette, among others, and that you also produce small tires. You want to modify the fixture shown in Standard No. 109 to attach the shoe and mounting plate directly to the hydraulic cylinder, as depicted in your enclosed drawing, to allow easier loading and unloading of tires, as well as to make the process more ergonomically correct, by permitting use of a motorized hoist.

You do not need our approval to modify the test fixture. The test procedures specified in the Federal motor vehicle safety standards (FMVSS) are the procedures on which the performance requirements of the FMVSSs are based and which this agency uses in its testing of motor vehicles and equipment for compliance with the FMVSSs. The FMVSSs, including Standard No. 109, do not specify the testing that manufacturers must do. The standards specify the performance levels that motor vehicles and equipment must meet when tested in accordance with the procedures set forth in the standard.

NHTSA does not specify test procedures applicable to manufacturers, and does not give approvals to manufacturers' test procedures. As stated above, manufacturers are required to certify that their products comply with all applicable FMVSSs. While the surest way to assure compliance would be to test tires in accordance with the test procedures specified in Standard No. 109, you are not legally obligated to do so.

Please note that we are not in a position to comment on ISO requirements. You should contact ISO representatives for information about that organization's test requirements.

I hope this information is helpful to you. If you have any questions or need additional information, feel free to call Walter Myers of my staff at this address or by telephone at (202) 366-2992, or by fax at (202) 366-3820.

Sincerely,
Frank Seales, Jr.
Chief Counsel
ref:109
d.6/10/99