Keith A. Savidge, Esq.

Seeley, Savidge, Ebert & Gourash Co., LPA

26600 Detroit Road

Cleveland, Ohio  44145

Dear Mr. Savidge:

This responds to your letter dated June 25, 2010, asking whether the SM Series Trommels distributed by your client, Doppstadt US, are motor vehicles regulated by the National Highway Traffic Safety Administration (NHTSA).  Our answer is no.

By way of background, NHTSA is authorized by the National Traffic and Motor Vehicle Safety Act (49 U.S.C. Chapter 301, Safety Act) to issue Federal motor vehicle safety standards (FMVSSs) that set performance requirements for new motor vehicles and new items of motor vehicle equipment.  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.  NHTSA also investigates safety-related defects.

The following is our interpretation of the FMVSSs based on the description in your letter.

You state that the SM Series Trommels are non-self-propelled separators of forestry and other recycled products.  You further state that the trommels do not move under their own power and are only periodically towed on public roads for use in other locations.  Finally, you state that the majority of units remain at a single location during their entire operating lifetime.  The websites of Doppstadt US, www.doppstadtus.com, and the manufacturer Doppstadt, www.doppstadt.com, indicate that the trommels are available with dual-axle or tracked chassis.  These websites^[1] also indicate that some of the trommels are capable of self-propelled drive but that this feature is intended only for movement at the jobsite.

The Safety Act (49 U.S.C. Section 30102(a)(6)) defines a motor vehicle as:

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

If a vehicle is a motor vehicle under the above definition, then it is regulated by NHTSA and must, among other things, comply with all applicable FMVSSs. 

Whether the agency considers your work units to be motor vehicles depends on the use of the vehicles.  In past agency interpretations, we have determined that vehicles which are primarily used off-highway and which only incidentally use the highways (to move between jobsites) are not motor vehicles under the Safety Act.  An example of this is mobile construction equipment which use the highway only to move between jobsites and which typically spend extended periods of time at a single jobsite.  In such cases, the on-highway use of the vehicle is merely incidental and is not the primary purpose for which the vehicle was manufactured.  

However, certain types of construction equipment make more frequent use of the roadways, and the agency has determined that such equipment are motor vehicles under the Safety Act.  For example, dump trucks have been determined to be motor vehicles because they regularly use the highways to travel between jobsites and stay on such jobsites for only a limited period of time, thereby rendering their on-highway use more than incidental.

In past interpretations, we have determined that certain types of trommels and other screening equipment are not motor vehicles under the Safety Act.  (See enclosed copies of April 26, 1993 letter to Mr. Jeff Gerner, and December 1, 1998 letter to Mr. Thomas W. Allison.) 

Based upon the depictions of the SM Series Trommels from the information you provided and the relevant websites, it appears that the units are designed to be primarily used at off-road jobsites for extended periods of time, but may occasionally be towed on highways from one jobsite to another.  Thus, the on-highway transport of these units appears to be merely incidental to their use on jobsites.  Based on the above information, we do not believe that the SM Series Trommels are motor vehicles under the Safety Act.

This determination is based on the information provided.  If in fact the units are using the roads and highways more than on an incidental basis, then the agency would reassess this interpretation. 

I hope this information is helpful.  If you have further questions, please contact William Shakely of my staff at (202) 366-2992.

                                                                                    Sincerely,

                                                                                    O. Kevin Vincent

                                                                                    Chief Counsel

Enclosures

Joshua D. Levine, Esq.

0-99 Plaza Rd.

Fair Lawn, NJ 07410

Dear Mr. Levine:

This responds to your letter dated July 8, 2010 asking about safety regulations for a device your client would like to manufacture, called the Sleepyhead. You state that the device is an accessory to a child car seat. The product is simply fitted over the car seat to prevent the childs head from slumping too far forward while a child is asleep. Photographs you enclose show the Sleepyhead used with a sleeping child in a child restraint. One end of the product appears to be fitted with elastic over the top of the restraints seat back, and the other end is fitted over the top of a childs head like a shower cap.

By way of background information, the National Traffic and Motor Vehicle Safety Act ("Safety Act," 49 U.S.C. 30101 et seq.) authorizes the National Highway Traffic Safety Administration (NHTSA) to issue safety standards for new motor vehicles and new items of motor vehicle equipment. NHTSA does not approve or certify any vehicles or items of equipment. Instead, the Safety Act 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 items of equipment for compliance with the standards.

There is currently no Federal motor vehicle safety standard (FMVSS) that directly applies to an accessory item like the Sleepyhead. Under the authority of the Safety Act, NHTSA has issued Standard No. 213, Child Restraint Systems, which specifies requirements for child restraint systems used in motor vehicles. However, Standard No. 213 applies only to new child restraint systems and not to aftermarket components of a child restraint system, such as the Sleepyhead.

However, there are other Federal laws that indirectly affect the manufacture and sale of the device. Under the Safety Act, the product is considered to be an item of motor vehicle equipment. As a manufacturer of motor vehicle equipment, your client is subject to the requirements in the Safety Act concerning the recall and remedy of products with safety related defects. I have enclosed an information sheet that briefly describes those responsibilities. In the event that your client or NHTSA determines that the product contains a safety-related defect, your client would be responsible for notifying purchasers of the defective equipment and remedying the problem free of charge.

In addition, manufacturers, distributors, dealers, and motor vehicle repair businesses are subject to 30122(b) of the Safety Act, which 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...." It appears unlikely from the nature of the product that it would be installed in vehicles by commercial businesses. However, if the product were to be installed by persons listed in 30122(b), the entities should ensure that the installation does not compromise the safety protection provided by a child restraint system.

The make inoperative prohibition does not apply to the actions of vehicle owners in adding to or otherwise modifying their vehicles or items of motor vehicle equipment. Nonetheless, NHTSA urges owners not to undertake modifications that would reduce the efficacy of any safety device or element of design. Products should not constrain the childs head against the child restraint in a manner that would be harmful to a child while riding in the child restraint or in a crash.

States have the authority to regulate the manner in which vehicles or equipment are used. You should thus check with State law to see if there are restrictions on the use of equipment items such as the Sleepyhead.

I hope this information is helpful. If you have further questions, please contact Deirdre Fujita of my staff at (202) 366-2992.

Sincerely,

O. Kevin Vincent

Chief Counsel

Enclosure

5/31/2010

Elizabeth D. Sorrell, Esq.

Law Offices of Tom McGrath

813 Diligence Drive, Suite 121-E

Newport News, VA 2223606-4203201

Dear Ms. Sorrell:

This responds to your request for an interpretation regarding the DOT symbol on the label specified in Federal Motor Vehicle Safety Standard (FMVSS) No. 218, Motorcycle hhelmets. The DOT symbol is the manufacturers certification that the helmet conforms to the applicable Federal motor vehicle safety standards. (See S5.6.1(e) of FMVSS No. 218). You wish to know whether NHTSAs June 22, 2000 response to the two questions posed by

Mr. William Gannon, II remains the same. The answer is yes, with regard to the first question. We would like to add clarification with regard to the second question.

The two questions posed in Mr. Gannons letter are: 1) [M]ust the D.O.T. label remain on the helmet after the consumer purchased it? and 2) Is a person liable for prosecution if you paint your helmet or apply a decal over the D.O.T. Label?

In the letter to Mr. Gannon, we stated:

Federal law does not prohibit the helmets owner or any other person that is not a manufacturer, distributor, dealer, or repair business from removing or covering the label from a motorcycle helmet. Thus, the owner of a motorcycle helmet is permitted to remove or cover the label from his or her helmet for any reason without violating any provision of Federal law or Standard No. 218.

That response to Mr. Gannons letter continues to be valid with regard to Federal law. However, I would add that the letter to Mr. Gannon did not address State law requirements that may prohibit an owner from removing or obscuring the DOT label. You should contact yourthe SStates Ddepartment of Mmotor Vvehicles to determine whether your State has any such restrictions.

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

Sincerely,

O. Kevin Vincent

Chief Counsel

5/31/2011

Mr. Nasser Zamani, Senior Manager

Compliance and Regulatory Affairs

Daimler Trucks North America LLC

4747 N. Channel Ave.

Portland, OR 97217-7699

Dear Mr. Zamani:

This responds to your request for assurance that we will apply a tolerance when measuring the width of flexible occupant seats, in testing school buses for compliance with Federal Motor Vehicle Safety Standard (FMVSS) No. 222, School bus passenger seating and crash protection. We regret to inform you that this letter is unable to provide a tolerance.

You ask about a flexible occupancy seat, which is defined in S4 of FMVSS No. 222 as:

a bench seat equipped with Type 2 seat belts that can be reconfigured so that the number of seating positions on the seat can change. The seat has a minimum occupancy configuration and a maximum occupancy configuration, and the number of passengers capable of being carried in the minimum occupancy configuration must differ from the number of passengers capable of being carried in the maximum occupancy configuration.

S4.1 of FMVSS No. 222 specifies how the National Highway Traffic Safety Administration (NHTSA) will determine the number of seating positions and seat belt positions on a bench seat, including flexible occupancy seats.

S4.1(c) states:

Except as provided in S4.1(d), the number of Type 2 seat belt positions on a flexible occupant seatis expressed by the symbol Y, and calculated as the seat bench width in millimeters [(mm)] divided by 380 and rounded to the next lowest whole number. See Table 1 [of the standard] for an illustration.

S4.1(d) states:

A flexible occupancy seat meeting the requirements of S4.1(c) may also have a maximum occupancy configuration with Y +1 Type 2 seat belt positions, if the minimum seat bench width for this configuration is Y +1 times 330 mm. See Table 1 [of the standard] for an illustration. (Emphasis added.)

Request for Tolerances

You indicate that your flexible occupancy seat has an occupancy configuration of two Type 2 seat belt positions large enough for mid-size adult males under S4.1(c) and an occupancy configuration of three seat belt positions for smaller passengers under S4.1(d).

Under S4.1(d), the minimum seat width for the maximum occupancy configuration is 990 mm (3 x 330 mm). You would like the seat width to be permitted to be slightly less than 990 mm wide.

You state that since it is difficult to control the tolerance of cushions, the average seat bench width would have to be greater than 990 mm in order to ensure the cushions produced never measured less than 990 mm. You are worried that if the seat bench width is greater than 990 mm, the bus aisle width would be less than 305 mm, which might not meet some State and local requirements. To avoid the difficulties of manufacturing soft goods, you ask if we apply tolerances to the measurement of seat bench width. You suggest that, Tolerances on soft good of this nature are typically +/- 13 mm.

Response

We regret to inform you that we cannot issue an interpretation along the line you suggest. NHTSA cannot provide variations from the explicit requirements of the FMVSSs through our interpretation letters. This is because under the National Traffic and Motor Vehicle Safety Act (49 U.S.C. Chapter 301; the Safety Act), NHTSA must establish by order appropriate safety standards. The Administrative Procedure Act (APA) applies to all orders establishing, amending, or revoking a safety standard. The APA generally requires agencies to publish a notice setting forth the proposed change to a safety standard, and allow the public to comment thereon, before the agency can adopt any change to the established safety standard.

Our interpretation letters are not subject to the requirements for public notice and comment, because interpretations do not add, delete, or change any requirements established in a safety standard. Instead, our interpretations explain how the requirements established in safety standards or the Safety Act apply to particular vehicles or equipment, or otherwise clarify the meaning of the established requirements.

In this case, S4.1s language is clear. Under S4.1(d), a flexible occupancy seat (bench seat) may have a maximum occupancy configuration with Y +1 Type 2 seat belt positions, if the minimum seat bench width for this configuration is Y +1 times 330 mm. Thus, under the standard, the minimum seat bench width for your flexible occupancy seat is 990 mm (3 x 330 mm=990 mm). We cannot interpret this language to include a tolerance of +/- 13 mm for the bench.[1] Your letter suggests a change to the requirements of FMVSS No. 222, not a clarification of those requirements. We cannot change those requirements without initiating rulemaking and giving the public notice of and the opportunity to comment on the change.

We also note that interpreting the standard to include a tolerance would confuse the meaning of Table 1 of the standard. Table 1 illustrates the number of seating positions as a function of seat bench width. The table shows that a seat bench with a width of 990-1139 mm would have a minimum of two seating positions (fixed occupancy seats or flexible occupancy seats), and for flexible occupancy seats, a maximum occupancy configuration of three seating positions. The table also shows that a seat bench with a width of 760-989 mm would have a minimum of two seating positions (fixed occupancy seats or flexible occupancy seats), and a maximum occupancy configuration of two seating positions. If we applied a tolerance of +/- 13 mm as you suggest, a bench seat of 760-989 mm nominal width could have a maximum occupancy of two or three seating positions. An interpretation that 990 mm means some lesser value would render the values in Table 1 confusing.

For the above reasons, we cannot interpret FMVSS No. 222 to provide the tolerance you seek.

Sincerely,

O. Kevin Vincent

Chief Counsel

Ref: Std. No. 222

8/17/2011

William H. Thompson III

146 N. 58 Street

Philadelphia, PA 19139

Dear Mr. Thompson:

This letter responds to your request dated October 23, 2010 requesting an interpretation of Federal motor vehicle safety standard (FMVSS) No. 108, Lamps, Reflective Devices, and Associated Equipment as it relates to your invention. We believe that your invention, which alters the sequence in which school bus signal lamps will flash, does not meet the requirements of FMVSS No. 108 for the reasons that follow.

In your request, you described the operation of your invention as containing four modes. The first mode is an idle mode where no lamps are flashing. The second mode operates to flash the amber school bus lamps. The third mode flashes one side red and the other side amber then flashes the complement. This mode repeats for approximately three seconds. Finally, the fourth mode flashes only the red lamps when the school bus door is opened and the entire system returns to idle when the bus door is closed. In your telephone conversation with Jesse Chang of my staff on April 11, 2011, you further clarified that the fourth mode would automatically open the school bus door if the school bus is equipped with an automatic door and that the fourth mode would signal the driver to open the door if the school bus is equipped with a manual door. It seems that your inventions alteration of the standard lighting scheme described in FMVSS No. 108 subpart S5.1.4 would likely detract from the standard message intended to be conveyed by school signal bus lamps. Thus, we believe your invention would be prohibited under both S5.1.3 disallowing additional lighting equipment which impairs the operation of required equipment, and the make-inoperative provisions of the Motor Vehicle Safety Act.

By way of background, the National Highway Traffic Safety Administration (NHTSA) is authorized to issue Federal Motor Vehicle Safety Standards that apply to both new motor vehicles and new items of motor vehicle equipment. NHTSA used this authority to promulgate FMVSS No. 108, which is the subject of your inquiry. While NHTSA is responsible for establishing safety standards, this agency does not provide approvals of motor vehicles or new items of motor vehicle equipment. Instead, manufacturers are required to certify that their vehicles and equipment meet the applicable standards and it is unlawful for dealers to sell motor vehicles or equipment not in compliance with these standards.

You are correct to refer to FMVSS No. 108 subpart S5.1.4 as the applicable regulation on school bus signal lamps. That standard requires each school bus to be equipped with either the four-lamp, all red lighting system described in subpart S5.1.4(a), or the eight-lamp, four red/four amber lighting system described in subpart S5.1.4(b). Subpart S5.1.4(b)(ii) further requires (in the eight-lamp setup) that the four amber lamps only be activated manually, that the four amber lamps automatically deactivate when the bus door is opened, and that the four red lamps automatically activate when the bus door is opened.

Additional lighting equipment is not generally prohibited under the FMVSS No. 108. However, there are two restrictions of interest that limit the permissible additions to the required lighting system under FMVSS No. 108 subpart S5.1.4. The first is S5.1.3 which limits the permissible additions that manufacturers and dealers may make before the first sale by stating that no additional lamp, reflective device or other motor vehicle equipment shall be installed that impairs the effectiveness of lighting equipment required by this standard. Through our prior interpretation letter to Steele Enterprises (December 6, 1999), we interpreted S5.1.3 to include under the definition of additional lamp the alteration of required lamps to perform in a manner different from the original design.[1] Further, our agency issued an interpretation letter dated December 11, 1995 and addressed to Ms. Carrie Stabile covering the subject of what constitutes impairment under S5.1.3. In that letter, we clarified the definition of impairment by stating that under S5.1.3, additional equipment cannot detract from the message that the required lamp is intended to impart.[2]

While your invention does not seek to include additional lamps, it is clear from our previous interpretations that altering standard lamps to perform non-standard functions is covered under the prohibition in subpart S5.1.3. Thus, the installation of your invention before the first sale of the vehicle would be governed by subpart S5.1.3. The amber and red lamps are intended to convey distinct messages to the other drivers on the road. The amber lamps indicate to drivers that the school bus is slowing down in preparation of making a stop. Then the red lamps indicate to drivers that the school bus has stopped and is loading or offloading students. As driver familiarity with established lighting standards is essential to preserving the intended message of the required lamps, we believe that your inventions addition of the third-mode lighting stage would impair the effectiveness of the required school bus signal lamps. Drivers familiar with the distinct bus slowing down and bus stopped messages conveyed by the amber and red lamps may not understand an intermediate lighting stage which combines both of these signal lamps. Thus, we believe your invention would be prohibited by FMVSS No. 108 if installed before the first sale.

The second restriction that limits the permissible additions to the required lighting system governs modifications to the vehicle after the first sale. After the first sale, the Motor Vehicle Safety Act of 1966 prohibits any manufacturer, distributor, dealer, or motor vehicle repair business from knowingly mak[ing] 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.[3] In this situation, we have expressed the interpretation that if new equipment or modifications interfere with the standard message that a lighting system is intended to convey, it constitutes rendering the required lighting inoperative. In our interpretation letter to Consumer Imports, LLC (December 6, 2002), we clarified this position by stating that the addition of a flashing stop lamp to the motorcyclists helmet would cause confusion and render the required stop lamp partially inoperative within the meaning of [the Motor Vehicle Safety Act].[4]

Under this second restriction, manufacturers, distributors, dealers, or motor vehicle repair businesses would also be prohibited by FMVSS No. 108 from modifying any buses currently in compliance with FMVSS to utilize your invention. For the same reason that the different flashing sequence would impair the effectiveness of the required school bus signal lamps, it would also render the lamps partially inoperative within the meaning of the Motor Vehicle Safety Act.

We thank you for your interest in improving safety for school children riding in school buses and the surrounding road users. If you have any further questions, please contact Jesse Chang (202-366-2992) of this office.

Sincerely,

O. Kevin Vincent,

Chief Counsel

Ref: FMVSS No. 108

7/29/2011

Richard Keller, Senior Project Leader
Bruno Independent Living Aids, Inc.
1780 Executive Drive
P.O. Box 84
Oconomowoc, WI  53066

Dear Mr. Keller:

This responds to your letter of January 13, 2010, concerning the application of the make inoperative prohibition with respect to the new head restraint requirements included in Federal Motor Vehicle Safety Standard (FMVSS) No. 202a and vehicles modified to accommodate persons with disabilities.  As explained below, until we complete action on our proposal to amend Part 595 to update existing exemptions concerning head restraint requirements and vehicles modified to accommodate persons with disabilities, the National Highway Traffic Safety Administration (NHTSA) will exercise its enforcement discretion and refrain from taking action in situations where the modifications would have been permitted either under the earlier version of the head restraint standard (FMVSS No. 202), or under the earlier version of the standard coupled with the existing exemptions established for that standard.

By way of background, on December 14, 2004, the National Highway Traffic Safety Administration (NHTSA) published a final rule upgrading our head restraint standard.  See 69 FR 7484.  The upgraded standard (which has been subsequently amended) is designated FMVSS No. 202a.  The earlier standard was designated FMVSS No. 202.  As a result of leadtime and a phase-in, manufacturers have been permitted to certify some vehicles to FMVSS No. 202, rather than FMVSS No. 202a, through August 31, 2010.

In response to a petition from your company, on December 18, 2009 (74 FR 67156) NHTSA published a notice of proposed rulemaking (NPRM) to amend Part 595 to update the exemptions concerning head restraint requirements and vehicles modified to accommodate persons with disabilities.[1]  You submitted your petition in light of a product you produce called

the "Turning Automotive Seat" (TAS). The TAS is designed to swivel in order to allow easier egress/ingress for mobility impaired persons.  You indicated that vehicles equipped with TAS meet the requirements of FMVSS No. 202, but not the requirements of FMVSS No. 202a. 

In order to accommodate people with disabilities and after considering the specific facts related to your request, until this rulemaking is completed, the agency will use its enforcement discretion and refrain from taking action with respect to the make inoperative prohibition and our head restraint standard in the limited instance of situations where the modifications would have been permitted either under the earlier version of the head restraint standard (FMVSS No. 202), or under the earlier version of the standard coupled with the existing exemptions established for that standard.  For purposes of the label and documentation requirements of 595.7(b), vehicle modifiers should, in such instances, take the same steps as if FMVSS No. 202 continued to be in effect.

If you require any additional information or assistance, please contact Dorothy Nakama of my staff at (202) 366-2992 or at the address given above.

Sincerely,

O. Kevin Vincent
Chief Counsel

8/25/2010