Paul S. Rosenlund, Esq.

Duane Morris LLP

One Market, Spear Tower

Suite 2000

San Francisco, CA 94105-1104

Dear Mr. Rosenlund:

This responds to your letter regarding your clients manufacture of bicycle racks for use on transit buses. You ask a number of questions about ensuring compliance with Federal Motor Vehicle Safety Standard (FMVSS) No. 108, Lamps, Reflective Devices, and Associated Equipment, with regard to a bicycle rack installed on the vehicles. We are happy to provide answers to your questions below.

By way of background, the National Highway Traffic Safety Administration (NHTSA) is authorized by the National Traffic and Motor Vehicle Safety Act (Safety Act) to issue FMVSSs that set performance requirements for new motor vehicles and new items of motor vehicle equipment (see 49 U.S.C. Chapter 301). NHTSA does not provide approvals of motor vehicles or motor vehicle equipment.  Instead, manufacturers are required to self-certify that their products conform to all applicable safety standards that are in effect on the date of manufacture. NHTSA selects a sampling of new vehicles and equipment each year to determine their compliance with applicable FMVSSs.  If our testing or examination reveals an apparent noncompliance, we may require the manufacturer to remedy the noncompliance, and may initiate an enforcement proceeding if necessary to ensure that the manufacturer takes appropriate action.

Question 1. We understand that vehicle manufacturers bear the sole legal obligation to certify vehicles as compliant with FMVSS 108 and other applicable safety standards, and that [F]ederal law does not require or make provisions for bicycle rack suppliers such as [our client] Sportworks to certify a bicycle rack or its component parts as being in compliance with [F]ederal standards. Please confirm our understanding to be correct.

Answer: While you are correct that manufacturers of new vehicles are responsible for certifying the compliance of the vehicle with all applicable FMVSSs, including FMVSS No. 108,[1] there are certain obligations of which your client should be aware.[2]

The first is S5.1.3 of FMVSS No. 108, which reads: No additional lamp, reflective device, or other motor vehicle equipment shall be installed that impairs the effectiveness of lighting equipment required by this standard. S5.1.3 has implications for a vehicle manufacturer or alterer installing the bicycle rack onto a new vehicle.[3] That party would need to certify the vehicle as complying with FMVSS No. 108 with the bicycle rack installed, ensuring that the bicycle rack does not impair the effectiveness of required lighting equipment. The second is 49 U.S.C. 30122 which we will discuss below, particularly in answering question 5.

2. We understand that 49 U.S.C. 30122, which prohibits making federally mandated safety devices and elements inoperative, applies only to a vehicle manufacturer, dealer or repair business; this make inoperative prohibition does not pertain to the activities of vehicle owners, such as transit agencies which own and operate transit buses, who may make changes to their buses in their own repair and maintenance facilities, even if they cause a vehicle to no longer comply with NHTSA safety standards such modifications would be governed by applicable [S]tate laws. Please confirm our understanding to be correct.

Answer: As you point out in your letter, 30122 of the Safety Act has implications for your client. Section 30122 states, in pertinent part:

A manufacturer, distributor, dealer, or motor vehicle repair business may not knowingly make inoperative any part of a device or element of design installed on or in a motor vehicle or motor vehicle equipment in compliance with an applicable motor vehicle safety standard prescribed under this chapter .

Your understanding is correct that the make inoperative provision of 30122 would not apply to a vehicle owner, such as a transit agency, that installs the bicycle rack in its own buses in its own repair and maintenance facility. However, please see our answer to question 5 for a more expansive discussion of 30122. In addition, there may be applicable Federal or State operational requirements relating to transit buses.

3. We understand that paragraph S7.8.5 of FMVSS 108 prohibits any styling ornament or other feature in front of the lens of a headlamp. In regard to all required lighting, we understand that paragraph S5.1.3 of FMVSS 108 prohibits motor vehicle equipment that impairs the effectiveness of lighting equipment required by this standard. Please confirm that these requirements pertain only to equipment such as a rack, and not to a bicycle or other item which may be placed in a rack. In this regard, we do understand that [S]tate laws may have other requirements that relate to bicycles or other temporary baggage wholly or partially obscuring any required lighting. Please confirm our understanding to be correct.

Answer: I would like to clarify several aspects of your statement. To begin, paragraph S7.8.5 only applies to the design of vehicle headlamps. The ornament or other feature described in that paragraph related to parts of the headlamp (e.g., wiper blades or translucent covers), not to additional vehicle equipment, such as a bicycle rack. Therefore, S7.8.5 would not be relevant to this discussion.

With regard to paragraph S5.1.3, as discussed in our answer to question 1, you are correct that a bicycle rack must not impair the effectiveness of required lighting equipment. In testing whether the vehicle complies with FMVSS No. 108, we would test the vehicle without a bicycle loaded on the rack, nor with any other cargo loaded into the vehicle. However, see our answer to question 5 regarding the make inoperative provision.

In addition, if the rack were installed such that a bicycle loaded onto the rack interfered with the functioning of a required lighting device, it is possible that such a situation could pose an unreasonable safety hazard. Under the Vehicle Safety Act, manufacturers are responsible for ensuring their vehicles and equipment are free of safety-related defects. If the design of the bicycle rack posed an unreasonable safety risk, we could investigate the problem as part of our defect authority.

Finally, you are correct in your understanding that the vehicle would be subject to State law requirements relating to items wholly or partially obscuring any required lighting. In addition, you should consider whether there are applicable Federal or State operational requirements relating to transit buses.

4. Sportworks on occasion supplies only the pivot plate assembly and/or bumper mounting brackets for its racks to OEM bus manufacturers for installation on new vehicles, with the understanding that the ultimate purchasers of these buses transit agencies will install racks in the configurations they select. In such circumstances, we understand that the OEM bus manufacturer may certify the bus as compliant with all applicable [F]ederal standards and that the owners selection, installation and use of the rack will be subject to [S]tate laws rather than to the FMVSS. Please confirm our understanding to be correct.

Answer: Your understanding is correct that the bus manufacturer must certify that the buses, with the installed private plate assemblies or mounting brackets installed, are compliant with FMVSS No. 108. However, please see our answer to question 5 for a more expansive discussion of issues raised by this question.

5. Finally, we understand from prior interpretive rulings that NHTSA considers a bicycle rack to be equipment such that if it is installed by a vehicle manufacturer, dealer or repair business, the complete vehicle, including the rack, must comply with the FMVSS, and if part of the rack installed by a vehicle manufacturer, dealer or repair business makes inoperative any required lamps or reflectors on the body of the vehicle, it would be necessary for the vehicle manufacturer, dealer or repair business to install auxiliary lamps or reflectors to replace the function of those made inoperative. Likewise, we understand from prior interpretive rulings that if a vehicle manufacturer, dealer or repair business sells a vehicle that complies with FMVSS 108 when delivered to the owner, but with hardware installed that the seller knows will be used to create a noncompliance, you would consider the vehicle manufacturer, dealer or repair business to have created the noncompliance. Please confirm our understanding to be correct.

Answer: It is correct that the new vehicle must be certified by its manufacturer as complying with all applicable FMVSSs with the bicycle rack installed. The vehicle must be certified with any system, part or component of a motor vehicle as originally manufactured. (See definition of motor vehicle equipment, 49 U.S.C. 30102(a)(7)(A)).

With regard to your questions about the make inoperative provision of 49 U.S.C. 30122, you are correct that NHTSA has addressed the scenario you describe (see March 26, 1996 letter to Chris Jorheim of New Flyer Industries, copy enclosed).[4] Mr. Jorheim asked about a manufacturer delivering a new bus to the end user with an advertising frame on the bus side. A required left side reflector would be unobstructed when the bus was delivered but once the owner placed an advertisement in the frame the reflector would have been covered. NHTSA determined that in this situation, the manufacturer produced a bus with the knowledge that the owner intended to create a noncompliance, and provided the hardware installed to enable the owner to do so. The agency determined that in this situation, both the bus manufacturer and the owner were creators of a noncompliance with FMVSS No. 108. However, since the owner is not subject to the provisions of 30122, the agency determined that the liability would be the manufacturers alone.

This analysis extends to the situation you describe as well. If the bus manufacturer installing Sportworks bicycle rack knew that the rack could not be used without creating a noncompliance with FMVSS No. 108 through, e.g., obstruction of the vehicles headlamps by the bicycles carried on the rack, both the bus manufacturer and the end user will be held to have created the noncompliance. Since the end user may not be subject to 30122, the bus manufacturer could alone be liable for making inoperative the vehicle safety system.

Finally, you are correct that one option to rectify a potential noncompliance with FMVSS No. 108 is to install auxiliary lamps or reflectors to replace the function of those made inoperative. This provision is contained in paragraph S5.3.2.2 of FMVSS No. 108, which states: If any required lamp or reflective device is obstructed by motor vehicle equipment (e.g., mirrors, snow plows, wrecker booms, backhoes, winches, etc.), and cannot meet requirements of S5.3.2, the vehicle must be equipped with an additional lamp or device of the same type which meet all applicable requirements of this standard, including S5.3.2.

If you have any further questions, please contact Ari Scott of my staff at (202) 366-2992.

Sincerely yours,

Anthony M. Cooke

Chief Counsel

Enclosure

ref:108

d.2/21/08

Mr. Terry Wagar

State of New York Department of Motor Vehicles

Office of Vehicle Safety and Clean Air

6 Empire State Plaza

Albany, NY 12228

Dear Mr. Wagar:

This responds to your request for our interpretation of whether A. 4687, a legislative bill proposing to amend Section 375-35 of the New York State Vehicle and Traffic Law, would be preempted by federal law. A. 4687 would amend Section 375-35 to prohibit tires from being manufactured, distributed, offered for sale or sold in New York for use on passenger vehicles, multi-purpose passenger vehicles, or light trucks unless a date of manufacture is clearly molded on both sides of the tire in a non-coded fashion.[1] Based on the information you have provided and the analysis below, we believe that the changes proposed to the Vehicle and Traffic Law by A. 4687, would be preempted by federal law.

The National Traffic and Motor Vehicle Safety Act, 49 U.S.C. 30103(b), expressly preempts State standards that differ from Federal motor vehicle safety standards in effect under the Act. Section 30103(b) states in relevant part:

When a motor vehicle safety standard is in effect under this chapter, 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.

Federal Motor Vehicle Safety Standard No. 139, (FMVSS) New Pneumatic Radial Tires for Light Vehicles (49 CFR 571.139), requires each tire to be labeled in the manner specified in Part 574, Tire Identification and Recordkeeping. S5.5.1 of FMVSS No. 139 states that for tires manufactured before September 1, 2009, Each tire must be labeled with the tire identification number required by 49 CFR part 574 on a sidewall of the tire, and that on the other sidewall, the tire must be labeled with either the tire identification number or a partial tire identification number containing all characters . . . except the date code and, at the discretion of the manufacturer, any optional code. S5.5.1(a). For tires manufactured on or after September 1, 2009, the requirements are similar, except that the full tire identification number is required on the intended outboard sidewall of the tire, unless there is no intended outboard sidewall. S5.5.1(b).

Part 574 contains requirements for identifying tire manufacture dates. Under 574.5, Tire identification requirements, tire manufacturers must permanently mold or laser etch into or onto the sidewall of each tire an identification number containing certain information. Among that information is a section with four numerical symbols representing the week and year of manufacture. Section 574.5(d) states in relevant part that:

The first two symbols must identify the week of the year by using 01 for the first full calendar week in each year, 02 for the second full calendar week, and so on. The third and fourth symbols must identify the year. Example: 0101 means the 1^st week of 2001, or the week beginning Sunday, January 7, 2001 and ending Saturday, January 13, 2001.

The language of A. 4687 requiring the date to be molded in a non-coded fashion and on both sides of the tire apparently specifies a labeling scheme that is not identical to that required by FMVSS No. 139. Since the State requirement would not be identical to the Federal requirement, we would consider A. 4687s proposed amendment to Section 375-35 of the New York Vehicle and Traffic Law to be preempted under 49 U.S.C. 30103(b).

I hope this information is helpful. If you have any further questions, please do not hesitate to contact Rebecca Schade of my staff at (202) 366-2992.

Sincerely yours,

Anthony M. Cooke

Chief Counsel

NCC-112:RSchade:mar:8/21/07:62992:OCC 07-004353

Cc: NCC-110 Subj/Chron

S:\INTERP\574\07-004353--21 Aug 07--rls.doc

Mr. Terry Wagar

State of New York Department of Motor Vehicles

Office of Vehicle Safety and Clean Air

6 Empire State Plaza

Albany, NY 12228

Dear Mr. Wagar:

This responds to your request for our interpretation of whether a proposed amendment to subdivision 10-d of section 375 of the New York State Vehicle and Traffic Law would be preempted by Federal law. The proposed amendment (Bill No. A4130, Jan. 31, 2007) would require certain motor vehicles to be manufactured with an outside unit magnification mirror or a convex mirror on the passengers side. Based on the information you have provided and the analysis below, we believe that the proposed amendment in Bill No. A4130 would be preempted.

The National Traffic and Motor Vehicle Safety Act, 49 U.S.C. 30101 et seq., expressly preempts state standards that differ from Federal motor vehicle safety standards. Section 30103(b) of the Act states, in relevant part:

When a motor vehicle safety standard is in effect under this chapter, 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. However, the United States Government, a State, or a political subdivision of a State may prescribe a standard for a motor vehicle or motor vehicle equipment obtained for its own use that imposes a higher performance requirement than that required by the otherwise applicable standard under this chapter.

Federal Motor Vehicle Safety Standard (FMVSS) No. 111, Rearview mirrors (49 CFR 571.111) prescribes performance and location requirements for rear and side view mirrors on new passenger cars, multipurpose passenger vehicles (MPVs), trucks, buses, school buses and motorcycles.

Bill No. A4130 would amend subdivision 10-d of section 375 of the New York State Vehicle and Traffic Law by adding paragraph (d)(ii), which would require that every new passenger-type motor vehicle, except a motorcycle, manufactured for sale in New York be manufactured with an outside unit magnification mirror or a convex mirror on the passengers side. New Yorks definition of passenger-type motor vehicle encompasses any motor vehicle with a seating capacity of not more than fifteen adults that is equipped with one or more rear windows. The new (d)(ii) rearview mirror requirement added by New York Bill No. A4130 would thus apply to passenger vehicles that are subject to FMVSS No. 111: new passenger cars, MPVs, trucks, buses, and school buses that seat less than 16.

We have determined that by adding (d)(ii) to subdivision 10-d of section 375 of the New York State Vehicle and Traffic Law, New York would be regulating the same aspect of performance (rear/side field of view) regulated by FMVSS No. 111. Under the first sentence of 49 U.S.C. 30103(b), the state may prescribe a standard applicable to the same aspect of performance as the Federal standard only if the state standard is identical to FMVSS No. 111. The following discussion analyzes the Federal and state standards according to vehicle type (as defined under 49 CFR 571.3, Definitions).

Passenger Cars

S5.3 of FMVSS No. 111 mandates passenger side outside rearview mirrors only for passenger cars whose inside rearview mirrors do not meet the field of view requirements of S5.1.1. Bill No. A4130 would require cars to be manufactured with an outside unit magnification mirror or a convex mirror on the passengers side. Thus, Bill No. A4130 would require passenger side rearview mirrors on new passenger cars where FMVSS No. 111 does not. The proposed rearview mirror requirement in Bill No. A4130 would not be identical to the Federal requirement, and we would consider the proposed requirement (10-d(ii) in Bill No. A4130) to be preempted under 49 U.S.C. 30103(b).

MPVs, Trucks and Buses Up to 4,536 Kilograms (10,000 Pounds) GVWR

S6.1 of FMVSS No. 111 requires all MPVs, trucks, and buses with a gross vehicle weight rating (GVWR) of 4,536 kilograms (kg)(10,000 pounds) or less (other than school buses) to either conform to the requirements for passenger cars (S5) or to have outside rearview mirrors on both sides. Thus, an MPV, truck or bus in this GVWR category that has an inside rearview mirror that complies with the field of view requirements of S5.1.1 is not required by FMVSS No. 111 to have a passenger-side outside rearview mirror. Some of these same motor vehicles are included in the definition of passenger-type motor vehicle in subdivision 10-d, and thus Bill No. A4130 would require an MPV, truck or bus in this GVWR category to have a passenger side rearview mirror where FMVSS No. 111 does not. Because the rearview mirror requirement in Bill No. A4130 is not identical to the FMVSS No. 111 requirements for MPVs, trucks or buses in this GVWR category, the proposed 10-d(ii) in Bill No. A4130 would be preempted under 49 U.S.C. 30103(b).

MPVs, Trucks and Buses Greater Than 4,536 Kilograms (10,000 Pounds) GVWR

S7 of FMVSS No. 111 applies to MPVs and trucks with a GVWR of more than 4,536 kg and less than 11,340 kg and each bus, other than a school bus, with a GVWR greater than 4,536 kg. S8 applies to MPVs and trucks with a GVWR of 11,340 kg or more. These two sections of FMVSS No. 111 specify that such vehicles shall have outside mirrors of unit magnification, each with not less than 323 cm² of reflective surface, installed with stable supports on both sides of the vehicle. The rearview mirror requirement added by Bill No. A4130 (paragraph 10-d(ii)) specifies that these vehicles must be manufactured with an outside unit magnification mirror or a convex mirror on the passengers side. Because New York would be regulating the same aspect of performance (rear/side field of view) regulated by FMVSS No. 111, the state standard must be identical to the Federal standard. Because the rearview mirror requirement in Bill No. A4130 is not identical to the FMVSS No. 111 requirements for this category of motor vehicles, the proposed 10-d(ii) in Bill No. A4130 would be preempted under 49 U.S.C. 30103(b).

School Buses That Seat Less Than 16

S9 of FMVSS No. 111 applies to school buses, and specifies a comprehensive mirror system for school buses. Because New York would be regulating the same aspect of performance (rear/side field of view) regulated by FMVSS No. 111, the nonidentical state rearview mirror standard proposed by Bill No. A4130 would be preempted under 49 U.S.C. 30103(b). Under the second sentence of 30103(b) New York may have a state standard for mirrors on vehicles procured for the state's own use (e.g., public school buses) that imposes a higher level of safety than FMVSS No. 111. However, we are unable to determine from your letter whether the New York state rearview mirror standard proposed in Bill No. A4130 would prescribe a higher performance requirement than the comprehensive mirror system for school buses under FMVSS No. 111.

I hope this information is helpful. If you have any further questions, please do not hesitate to contact Sarah Alves of my staff at (202) 366-2992.

Sincerely yours,

Anthony M. Cooke

Chief Counsel

ref:111

d.1/31/08

Mr. Guy Dorleans

International & Regulatory Affairs

Valeo Lighting Systems

34, rue Saint-Andr

93 012 Bobigny Cedex

France

Dear Mr. Dorleans:

This responds to your letter, in which you ask about the activation of daytime running lamps (DRLs) under Federal Motor Vehicle Safety Standard (FMVSS) No. 108, Lamps, Reflective Devices, and Associated Equipment. Specifically, you ask whether various LED (light-emitting diode) lamp designs, incorporating a parking lamp function in addition to other functions, can be used as DRLs under the standard. Our answer is that this would not be prohibited by FMVSS No. 108.

By way of background, the National Highway Traffic Safety Administration (NHTSA) is authorized to issue FMVSSs that set performance requirements for new motor vehicles and items of motor vehicle equipment (see 49 U.S.C. Chapter 301). NHTSA does not provide approvals of motor vehicles or motor vehicle equipment.  Instead, manufacturers are required to self-certify that their products conform to all applicable safety standards that are in effect on the date of manufacture. NHTSA selects a sampling of new vehicles and equipment each year to determine their compliance with applicable FMVSSs.  If our testing or examination reveals an apparent noncompliance, we may require the manufacturer to remedy the noncompliance, and may initiate an enforcement proceeding if necessary to ensure that the manufacturer takes appropriate action.

The relevant language in FMVSS No. 108 regarding the regulation of DRLs is paragraph S5.5.11(a). This paragraph reads, in part:

Any pair of lamps on the front of a passenger car, multipurpose passenger vehicle, truck, or bus, whether or not required by this standard, other than parking lamps or fog lamps, may be wired to be automatically activated, as determined by the manufacturer of the vehicle, in a steady burning state as daytime running lamps (DRLs) and to be automatically deactivated when the headlamp control is in any on position

In your letter, you described two scenarios in which an array of four LEDs that could serve as both a parking lamp and as a DRL. In the first scenario, one LED in the array is activated alone in parking lamp mode, while all four are activated in DRL mode. In the second scenario, all four LEDs in the array are activated at a low intensity in parking lamp mode, and all four are activated at a higher intensity in DRL mode. You indicated that for both scenarios the lamp would meet the specified photometric requirements for whichever function was activated, i.e., parking lamp or DRL. We believe that both designs would be permitted by FMVSS No. 108.

In a 1997 letter of interpretation which we have enclosed,[1] we explained the rationale of prohibiting parking lamps to be used as DRLs. In that letter, we stated:

[A] manufacturer may use any pair of front lamps for the DRL feature, other than parking lamps (too small to be effective) or fog lamps (too bright).

For the purpose of S5.5.11(a), the array of LEDs that you described in your letter, which can serve the function of parking lamps or other lamps depending on how they are activated, would not be considered parking lamps in either of the scenarios that you described. In DRL mode, the lamps would be substantially brighter than the parking lamps, and according to your letter, their photometric output would comply with the requirements of S5.5.11(a)(1), which sets minimum and maximum output for DRLs. This would result in effective DRLs, which is the intent of the requirement in FMVSS No. 108.

We also note that the use of multifunction lamps, including lamps that function, in part, as parking lamps, were considered in the development of the DRL standards. In a 1988 letter of interpretation,[2] we stated that:

[A] lamp that functions both as a parking lamp and a DRL and which is operated in daylight could act as either a DRL or a parking lamp, depending on the intensity of the light emitted, but it would have to meet the photometric requirements for the function being exercised.

If you have any further questions, please contact Ari Scott of my staff at (202) 366-2992.

Sincerely yours,

Anthony M. Cooke

Chief Counsel

Enclosure

ref:108

d.4/29/08

Mr. Mark Merchant

336 Sprague Road # 104

Berea, OH 44017

Dear Mr. Merchant:

This letter responds to your note asking how to submit an idea for traffic safety on vehicles.  Your device would be an addendum to the taillight currently used on most vehicles.

The National Highway Traffic Safety Administration (NHTSA) issues safety standards for motor vehicles and equipment. Any interested person may recommend that NHTSA adopt a new standard or amend an existing one. Such recommendations are formally submitted via a petition for rulemaking. The requirements for petitioning for rulemaking are set forth in 49 CFR 552.4. The petition must be in the English language, the word "Petition" must be in the heading preceding the text, and the petition must set forth facts which it is claimed establish that an amendment is necessary, set forth a brief description of the substance of the amendment which it is claimed should be issued, and contain the name and address of the petitioner.

Petitions must be sent to:

Administrator

National Highway Traffic Safety Administration

1200 New Jersey Avenue, SE, W41-307

Washington, DC 20590

We have a specific policy with respect to evaluating requests related to signal lamps, which include taillights. We believe that motor vehicle safety is best promoted by standardization of lighting signals. As you might imagine, the agency is frequently presented with new lighting ideas intended to enhance safety. Many of these are not allowable under Standard No. 108 because of deviations from the performance of the lighting equipment mandated by the standard. These ideas are often submitted without proof of their effectiveness. On December 13, 1996, we published a Federal Register notice that articulated the agency's general policy regarding new signal lighting ideas and how that policy would apply in the

case of four specific brake signaling ideas (61 FR 65510). In a subsequent notice, published on November 4, 1998 (63 FR 59482), we expressed our intent to participate in efforts to develop an international consensus on how to handle new signaling ideas. We went on to say that, until a new international consensus emerges, we will follow the policy described in the December 1996 notice. I enclose a copy of both the 1996 and 1998 notices.

Of particular interest to you will be the discussion on p. 65517 of the December 1996 notice in which we advised inventors to provide our Office of Research and Development with candidates for future agency research. We summarized our policy as follows:

In summary, a petitioner seeking to persuade the agency to mandate a lighting invention for new vehicles bears the initial burden of establishing its safety value and cost effectiveness. The burden for those inventors seeking to make an invention optional is to convince the agency that the invention will not impair the effectiveness of required lighting equipment through creating ambiguity or negatively affecting standardization of signals.

Before submitting any invention to the agency, we urge you to carefully read the enclosed Federal Register notices, and make sure that you are submitting the kind of data necessary for us to evaluate your petition. Furthermore, you should be aware of agency rules regarding disclosure of communications. If you are submitting information you would like to keep confidential, you must follow the instructions laid out in 49 CFR Part 512, Confidential Business Information.

If you have any further questions, please contact Ari Scott of my staff at (202) 366-2992.

Sincerely yours,

Anthony M. Cooke

Chief Counsel

Enclosures

ref:108

d.2/29/08

Dietmar K. Leicht

Secretary General

Federation of European Manufacturers

of Friction Materials

Robert-Perthel-Str. 49

D-50739 Kln

Germany

Dear Mr. Leicht:

This responds to your letter in which you ask whether AMECA Standard VESC V-3 is still a legal requirement and mandatory in [the U.S.]. You stated that your members would like to know which legal requirements must be fulfilled for the export of brake linings to the United States. You cited brake linings for the aftermarket which are approved in Europe by ECE Regulation No. 90 and OE brake linings offered on the market as original replacement parts which are approved in Europe by ECE Regulation No. 13 (13H).

By way of background, the National Highway Traffic Safety Administration (NHTSA) is authorized under 49 U.S.C. Chapter 301 to issue Federal motor vehicle safety standards applicable to new motor vehicles and items of motor vehicle equipment.  NHTSA does not approve motor vehicles or motor vehicle equipment, nor do we endorse any commercial products.  Instead, our statute establishes a self-certification process under which each manufacturer is responsible for certifying that its products meet all applicable safety standards.  The agency periodically tests vehicles and equipment items for compliance with the standards, and also investigates reports of safety-related defects.

There is currently no Federal motor vehicle safety standard for new or replacement linings used on motor vehicles sold in the United States. However, new vehicles are required to be certified to brake safety standards which specify minimum performance requirements under a variety of different test conditions. While the brake linings used on a vehicle could affect the vehicles ability to meet some of the minimum performance requirements, the requirements do not establish any separate performance requirements for the brake linings.

The Federal requirements operate separately from the State law requirements. States are free to impose their own requirements on motor vehicles and motor vehicle equipment, unless such requirements are preempted by Federal law. We are unable to provide information about possible State requirements for brake linings.

Standard V-3 was promulgated by the Vehicle Equipment Safety Commission (VESC), and specified minimum requirements and uniform test procedures for motor vehicle brake linings. VESC ceased operations in January 1984.

With regard to Federal law, the VESC V-3 standard is not and never was a legal requirement. However, we cannot provide information as to whether some or all of the requirements of this standard may have been adopted as State laws.

In your letter, you referenced AMECA. We note that, according to its website, the Automotive Manufacturers Equipment Compliance Agency, Inc. (AMECA) was incorporated in late 1994 to continue providing the same safety equipment services to the states that the American Association of Motor Vehicle Administrators had provided since 1967.

Finally, brake linings are items of "motor vehicle equipment" and are subject to the notification and remedy (recall) provisions of 49 U.S.C. 30118-30120. If a manufacturer or NHTSA determines that the product contains a safety-related defect, the manufacturer is responsible for notifying purchasers of the defective vehicle or item of motor vehicle equipment and remedying the problem free of charge. (This "recall" responsibility is borne by the vehicle manufacturer in cases in which the equipment is installed on a new vehicle by or with the express authorization of that vehicle manufacturer.)

I am enclosing an information sheet we prepared for new manufacturers of motor vehicles and motor vehicle equipment that provides additional information about relevant Federal states and NHTSA standards and regulations affecting motor vehicle and motor vehicle manufacturers.

We hope this information has been helpful. If you have any further questions, you may call Ari Scott of my staff at (202) 366-2992.

Sincerely yours,

Anthony M. Cooke

Chief Counsel

Enclosure

ref:VSA

d.11/20/08

Mr. William Farmer

10114 Allenwood Drive

Riverview, FL 33569

Dear Mr. Farmer:

This responds to your request for our support of your development of an electronic device that would be installed in a motor vehicle, that could inform and warn drivers of an emergency situation (such as an approaching emergency vehicle), of hazardous road conditions (e.g., road closures) or to exercise caution in certain situations (e.g., that the driver is in the vicinity of a school or train crossing). As explained below, this office cannot comment on or offer the opinion sought by your letter regarding the safety impacts of your proposed devices.

By way of background, the National Highway Traffic Safety Administration (NHTSA) is authorized under 49 U.S.C. Chapter 301 to issue and enforce Federal motor vehicle safety standards (FMVSSs) applicable to new motor vehicles and items of motor vehicle equipment.  NHTSA does not approve motor vehicles or motor vehicle equipment, nor do we endorse any commercial products.  Instead, our statute establishes a self-certification process under which each manufacturer is responsible for certifying that its products meet all applicable safety standards.  The agency periodically tests vehicles and equipment items for compliance with the standards, and also investigates reports of safety-related defects.

We cannot render an opinion as to how our safety standards would affect your product, in part because your description of your device was very general. In any event, it would be your responsibility as a manufacturer of motor vehicle equipment to ensure that the product complies with all applicable standards and is free of safety-related defects. NHTSA does not have an FMVSS that applies to aftermarket warning systems, but we cannot say for sure that no standard applies to your product since we know very little about your device. Keep in mind also that installation of your product on a new or used vehicle by a motor vehicle manufacturer, dealer, distributor or repair business must not make inoperative the compliance of any safety system with an applicable FMVSS (49 U.S.C. 30122).

It appears that you are seeking a judgment call or some kind of indication as to whether NHTSA believed these devices would increase safety. NHTSA does not certify, endorse, approve, or give assurances of compliance for any vehicle or item of vehicle equipment. Therefore, this office cannot and will not express support for or approval of your idea.

We appreciate your interest in motor vehicle safety, however. I have enclosed an information sheet that briefly describes manufacturer responsibilities under our statutes and regulations.

Please also note that States have the authority to regulate the operation and use of vehicles. If you wish to know whether State law permits the installation of your product in motor vehicles, you should contact State officials with your question.

If you have any further questions, please do not hesitate to contact Sarah Alves of my staff at (202) 366-2992.

Sincerely yours,

Anthony M. Cooke

Chief Counsel

Enclosure

ref:571

d:12/5/07

Mr. Brent K. Faulkner

PSC 476 Box 347

FPO AP 96322

Dear Mr. Faulkner:

This responds to your letter requesting that the National Highway Traffic Safety Administration (NHTSA) provide you with a letter authorizing the importation of your 2005 Honda XR230 bike as a vehicle that is not a motor vehicle. You dispute the U.S. Navys denial of a request to ship your bike from Japan based on their interpretation of NHTSA regulations to prohibit the importation of motorcycles without DOT stickers or VIN numbers. Specifically, you disagree with the Navys classification of your bike as a motor vehicle because you would plan to import the bike exclusively for off-road use. As discussed below, we cannot provide the letter you request.

Under 49 U.S.C. 30112(a)(1), a person may generally not import a motor vehicle into the U.S. unless the vehicle complies with all applicable Federal Motor Vehicle Safety Standards (FMVSSs) in place at the time the vehicle was manufactured, and the manufacturer certified the vehicle as complying with all applicable FMVSSs under 49 U.S.C. 30115. Motor vehicle is defined at 49 U.S.C. 30102(a) as:

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

Accordingly, only vehicles that are intended to be operated on the public streets, roads, and highways, as one of their primary uses, are considered to be motor vehicles, and vehicles which are manufactured solely for use "off-road" are excluded.

In your letter you state that the XR230 is a dirt bike, intended for off-road use, but is manufactured with devices such as turn signals, brake lights, and mirrors. You indicated that, in Japan, it is lawful to drive dirt bikes on the road provided that they are equipped with these types of devices. You stated that this facilitates the transportation of off-road, recreational vehicles without the need for vehicles capable of towing trailers. You argue that while capable of on-road use in Japan, the vehicle is manufactured primarily for off-road use.

We believe that the presence of lights, mirrors, and turn signals on a bike with speed capabilities above 20 mph, such as the XR230, indicates that the manufacturer intends the bike to be used on the public roads. Moreover, we have reviewed information on Hondas website concerning the XR230. Hondas 2005 Annual Report (which can be found under the Investor Relations section of Hondas website) indicates that Honda introduced the XR230 into the Japanese market in 2005 as a dual-purpose bike . . . that is suited for both on-road and off-road use. Given the available information, we believe that on-road use is one of the primary purposes of the XR230, and that the vehicle is thus a motor vehicle.

You also state that you intend to remove the mirrors, turn signals and brake lights, and import the bike into the United States for your solely off-road use. However, an individual owners planned use for a vehicle being imported is not determinative of whether the vehicle is a motor vehicle. The statutory definition of motor vehicle directs us to consider the vehicle as manufactured. We also note that if removal of safety equipment from a motor vehicle had the effect of re-categorizing it as exclusively intended for off-road use and thus not a motor vehicle for importation purposes, nothing would prevent individuals from reinstalling such equipment after importation into the U.S. and using the vehicle for on-road purposes.

If you have any further questions, please do not hesitate to contact Sarah Alves of my staff at (202) 366-2992.

Sincerely yours,

Anthony M. Cooke

Chief Counsel

ref:571

d.3/11/08

James A. Haigh, Vice President

Technical Specifications & Application Development

Transpec Worldwide

7205 Sterling Ponds Court

Sterling Hts., MI 48312

Dear Mr. Haigh:

This responds to your letter regarding whether your product, the Transpec Merge Alert, is permissible under Federal Motor Vehicle Safety Standard (FMVSS) No. 108, Lamps, Reflective Devices, and Associated Equipment. Specifically, the Merge Alert is an LED (light emitting diode) device that mounts on the rear of a transit bus, and alternatively flashes in amber lights the word Merging, as well as a Yield sign or an arrow. As discussed below, we do not believe that such a device would be permitted under FMVSS No. 108 if installed as original equipment on a motor vehicle. Furthermore, we believe that it would be a violation of 49 U.S.C. 30122 if the Merge Alert were installed by a manufacturer, dealer, distributor, or motor vehicle repair business.

By way of background, the National Highway Traffic Safety Administration (NHTSA) is authorized to issue FMVSSs that set performance requirements for new motor vehicles and items of motor vehicle equipment (see 49 U.S.C. Chapter 301). NHTSA does not provide approvals of motor vehicles or motor vehicle equipment.  Instead, manufacturers are required to self-certify that their products conform to all applicable safety standards that are in effect on the date of manufacture. NHTSA selects a sampling of new vehicles and equipment each year to determine their compliance with applicable FMVSSs.  If our testing or examination reveals an apparent noncompliance, we may require the manufacturer to remedy the noncompliance, and may initiate an enforcement proceeding if necessary to ensure that the manufacturer takes appropriate action.

New motor vehicles are subject to the requirements in Standard No. 108 regarding flashing lamps. The question of which lamps are permitted to flash on a vehicle is addressed in paragraph S5.5.10 of FMVSS No. 108. The relevant provision states:

The wiring requirements for lighting equipment in use are:
(a)   Turn signal lamps, hazard warning signal lamps, and school bus warning lamps shall be wired to flash;

(b)   Headlamps and side marker lamps may be wired to flash for signaling purposes;
(c)   A motorcycle headlamp may be wired to allow either its upper beam or its lower beam, but not both, to modulate from a higher intensity to a lower intensity in accordance with section S5.6;
(d)   All other lamps shall be wired to be steady-burning.

In general, flashing lamps are prohibited on vehicles under S5.5.10(d), unless they fall into one of the exceptions listed in S5.5.10(a)-(c). Because the Merge Alert does not fall into any of the lamp categories covered in sections (a)-(c),[1] it is subject to the general prohibition on flashing lamps of S5.5.10(d). Therefore, the Merge Alert could not be installed on transit buses as an item of original equipment or installed on a vehicle by its manufacturer or dealer prior to the initial sale of the vehicle for a purpose other than resale, as it would be a violation of Standard No. 108.

Also, S5.1.3 of Standard No. 108 prohibits the addition of equipment on a vehicle if it impairs the effectiveness of lighting equipment required by Standard No. 108. As we have explained to you in previous letters,[2] while there are limited exceptions, we interpret the standard as generally prohibiting electronic message boards because they have the potential of impairing the effectiveness of required lighting. The primary concern is that such devices can distract other drivers sharing the roadway from understanding and responding to the lighting devices required by Standard No. 108. For example, given that your product would be mounted on the rear of a transit bus, it could distract other drivers attention from the required turn signals. While we have recognized a limited exception for school buses, i.e., we defer to the States with respect to the narrow issue of prescribing or prohibiting electronic message boards (including flashing message boards) on school buses, we do not recognize such an exception for transit buses.[3] Also, non-standard signal lamps are generally prohibited by this provision due to the potential to cause confusion.

If sold as aftermarket equipment, the Merge Alert would be treated differently. Paragraph S3, Application, of FMVSS No. 108, defines the type of equipment and vehicles that Standard No. 108 applies to. Part (c) of that paragraph applies to [l]amps, reflective devices, and associated equipment for replacement of like equipment on vehicles to which this standard applies. [emphasis added] Because the Merge Alert is an auxiliary lamp that does not replace a like item of motor vehicle equipment, Standard No. 108 is not applicable. Therefore, the requirements of Standard No. 108 would not prohibit the sale of the Merge Alert as aftermarket equipment.

However, Federal restrictions would still exist with respect to the installation of the Merge Alert. Under 49 U.S.C. 30122, if an item of equipment is installed by a "manufacturer, dealer, distributor, or motor vehicle repair business," that equipment as installed must not "make inoperative" any of the required safety equipment. As NHTSA has stated in previous interpretations, if an item of motor vehicle equipment impairs the effectiveness of lamps required by Standard No. 108, we consider that to have made the lighting system inoperative, and therefore the installation of that equipment would be a violation of 30122 if performed by a manufacturer, dealer, distributor, or motor vehicle repair business. Therefore, it would be a violation of 30122 for any of these entities to install the Merge Alert on vehicles other than transit buses, even if it was purchased as aftermarket equipment.

We note that 30122 applies only to manufacturers, dealers, distributors, and motor vehicle repair businesses. Therefore, if an electronic message board, such as the Merge Alert, is installed by a vehicle owner, without assistance from a manufacturer, distributor, dealer, or motor vehicle repair business, the owner is not violating Federal law if (s)he installs it and uses it.

Furthermore, States regulate auxiliary lighting equipment in various ways. We suggest that you contact State agencies to ascertain the legal status of the Merge Alert with regard to State regulation.

If you have any further questions, please contact Ari Scott of my staff at (202) 366-2992.

Sincerely yours,

Anthony M. Cooke

Chief Counsel

Enclosure

ref:108

d.4/8/08

Lawrence J. Oswald

CEO, Global Electric Motorcars LLC

Director, GEM and EV Product Team

Chrysler LLC

CIMS 483-00-02

800 Chrysler Drive

Auburn Hill, MI 48326

Dear Mr. Oswald:

This responds to your letter concerning new State laws on medium speed electric vehicles (MSEVs). You noted that Montana and Washington have enacted legislation that purports to allow motor vehicles called MSEVs to operate on certain public roads. The statutes define MSEVs as electric-powered vehicles with a maximum speed of 35 mph that meet certain limited safety requirements similar to those established by the National Highway Traffic Safety Administration (NHTSA) for low speed vehicles (LSVs). You requested that NHTSA advise State officials on inconsistencies between these new State laws and Federal law, and potential significant safety problems that such State laws may create.

As discussed below, the responsibilities of manufacturers and dealers to comply with Federal law, including not manufacturing or selling vehicles unless they comply with all applicable Federal motor vehicle safety standards (FMVSSs), are not limited by State laws on MSEVs.

By way of background, the National Highway Traffic Safety Administration (NHTSA) is authorized to issue FMVSSs that set performance requirements for new motor vehicles and items of motor vehicle equipment (49 U.S.C. Chapter 301). Chapter 301 provides that a person may not "manufacture for sale, sell, offer for sale, introduce or deliver for introduction in interstate commerce, or import into the United States" any new motor vehicle or new item of motor vehicle equipment unless the vehicles or equipment comply with applicable safety standards. Manufacturers are required to self-certify that their products conform to all applicable safety standards that are in effect on the date of manufacture.

NHTSA has used its authority to, among other things, establish special category of motor vehicles called low speed vehicles (LSVs). This was done in part to accommodate the use of small golf cars as personal transportation vehicles in controlled, low-speed environments, such as retirement communities. In order to qualify as an LSV under the agencys definition,[1] a vehicle must, among other things, have a speed capability no higher than 25 mph and a gross vehicle weight rating of less than 3,000 pounds. As defined, LSVs are subject to the limited set of safety measures in Standard No. 500, including requirements regarding the installation of lamps, mirrors, seat belts, and a windshield. However, LSVs are not subject to the rigorous crashworthiness standards to which other vehicles are required to comply. We note that vehicles with a speed capability above 25 mph are more likely to be driven outside controlled, low speed environments, and the limited LSV safety requirements are not appropriate for such vehicles.

A motor vehicle that has a speed capability above 25 mph, such as an MSEV with a top speed of 35 mph, would not be classified as an LSV under Federal law. Instead, the vehicles with a speed capability above 25 mph that would be considered MSEVs under the State laws at issue are classified as passenger cars, multipurpose passenger vehicles, or trucks under Federal law. These vehicles are subject to the full range of FMVSSs that apply to those classes of vehicles, including, as you noted in your letter, crashworthiness requirements in frontal, side, and rear crashes, braking requirements, lighting requirements, etc. As noted above, under Federal law, no person may manufacture for sale, sell, offer for sale, introduce or deliver for introduction in interstate commerce, or import into the United States any new motor vehicle unless the vehicle complies with all applicable FMVSSs and is certified as such.

In conclusion, regardless of State laws, the classification of a vehicle under Federal law remains unchanged. Therefore, the manufacturer of an MSEV with a speed capability above 25 mph (or which otherwise does not meet the Federal definition of LSV) must certify it as complying with all applicable FMVSSs specified for passenger cars, multipurpose passengers, or trucks, as applicable.

I hope this information is helpful. A copy of this letter will be placed in the docket. We will consider whether specific steps are needed to advise State officials about relevant requirements of Federal law.

Sincerely yours,

Anthony M. Cooke

Chief Counsel

ref:500

d.4/29/08