ID: 77-3.26

TYPE: INTERPRETATION-NHTSA

DATE: 07/13/77

FROM: AUTHOR UNAVAILABLE; Joseph J. Levin Jr.; NHTSA

TO: American Trailers, Inc.

TITLE: FMVSR INTERPRETATION

TEXT: This responds to your May 25, 1977, letter asking whether two sample certification labels you submitted comply with the requirements of Part 567, Certification, and Standard No. 120, Tire Selection and Rims for Motor Vehicles Other Than Passenger Cars.

The National Highway Traffic Safety Administration (NHTSA) does not issue advance approvals of compliance with Federal safety standards or regulations. The agency will, however, give you an informal opinion as to whether your labels appear to comply with the requirements. The two labels you submitted do not follow the format required by Part 567 for certification labels. Therefore, they do not appear to comply with the requirements. Your method of stating tire and rim sizes differs from that required in Part 567 and Standard No. 120. For example, you state your tire and rim information as follows: "10-20-F-Tires-7.5 Rims at 75 PSI Cold Dual." By the requirements of Part 567 and Standard No. 120 as they apply to certification labels, this information should read: "10.00-20(F) tires, 20x7.5 rims, at 75 psi cold dual." Further, the statement after GAWR "maximum with minimum size tire-rims shown below" should be deleted from the certification label. I am enclosing a copy of Part 567 and Standard No. 120 for your information.

SINCERELY,

American Trailers, Inc.

May 25, 1977

Office of the Chief Counsel National Highway Traffic Safety Admin. U.S. Department of Transportation

We would appreciate an opinion on the following proposed certification plates for compliance with FMVSS-120. Effective September 1, 1977.

PLATE "B" - This plate would service 98% of our production, in that 10:00-20 "F" tires are the lowest capacity-rated standard tires installed-the other option, i.e. 11-22.5, 10:00-22, 11-24.5 "F" tires are all capacity rated above the 19,040 lbs. GAWR that we certify on the plate. The 10:00-20 "R" tires are included because the psi rating changes, we still rate the "R" tires at the same 19,040 lbs. which is consistant with the GVWR shown on the plate.

PLATE "C" - This plate would be used in the other 2% of our production. The tire selection in these cases is always of a lower capacity-rated tire than the 19,040 lbs. GAWR for the 10:00-20 "F" tire shown on Plate "b". The GAWR used on this plate would be according to the tire manufacture's rating and the GVWR would be decreased accordingly.

We feel that Plate "B" meets the full intent of FMVSS-120, in that it states the maximum GAWR for the smallest standard tire used in the majority of our production. Even though the trailer is equipped with a higher capacity-rated tire we do not increase the GAWR above the 19,040 lb. figure The use of the term "All Axles" readily identifies, and would be much clearer to the end user.

With a 45 day leadtime on procurement of certification plates, your timely response will be appreciated so that compliance requirements may be achieved by the September 1 deadline.

Jerry W. McNeil Director of Engineering

American trailers, inc. OKLAHOMA CITY, OKLA.

ID: 77-3.27

TYPE: INTERPRETATION-NHTSA

DATE: 07/13/77

FROM: AUTHOR UNAVAILABLE; Joseph J. Levin Jr.; NHTSA

TO: Busby and Rehm

TITLE: FMVSR INTERPRETATION

TEXT: This responds to your letter of June 21, 1977, requesting our office to advise the U. S. Customs Service that a new "camper" vehicle manufactured by Subaru would be classified as a multipurpose passenger vehicle by the National Highway Traffic Safety Administration (NHTSA), in contradiction of a previous letter from the NHTSA to Customs.

As noted by Mr. Armstrong of this agency in his letter of January 17, 1977, to the Customs Service, the NHTSA does not assign or approve in advance a classification for a particular vehicle design. Any ultimate agency determination as to vehicle classification would generally arise only in the context of compliance or enforcement proceedings. The NHTSA does issue advance opinions concerning vehicle classification when requested to do so by vehicle manufacturers. These opinions are necessarily qualified, however, by statements that the opinion is based solely on the description of the vehicle as supplied by the person making the request. Our opinion as to classification is, of course, dependent on the manner in which the vehicle is described.

As defined in 49 CFR 571.3, a "truck" is a motor vehicle designed primarily for the transportation of property or special purpose equipment. A "multipurpose passenger vehicle" is defined in Section 571.3 as a vehicle designed to carry 10 persons or less which is contructed either on a truck chassis or with special features for occasional off-road operation. The Subaru "camper" is constructed on a truck chassis and has special features for off-road use (4-wheel drive), which would qualify it as a multipurpose passenger vehicle. Therefore, the determinative question is whether the Subaru vehicle is designed primarily for carrying property, in which case it would be classified a truck.

In spite of the Subaru vehicle's resemblance to a pick-up truck or Ranchero, there is a basic distinction in design. In the case of a pick-up or Ranchero truck there is a separate vehicle area that is clearly designed for cargo-carrying alone. In the case of the Subaru vehicle, however, the manufacturer has placed seats for two people in the area that would ordinarily be used for carrying property. Since the manufacturer has chosen to use that area for the purpose of carrying passengers, it cannot be said that the vehicle is designed primarily for carrying property.

Based on this rationale, the NHTSA concludes that the Subaru "camper" qualifies as a "multipurpose passenger vehicle," and that the preliminary opinion of the Office of Standards Enforcement was inaccurate. I would point out, however, that the Federal motor vehicle safety standards applicable to multipurpose passenger vehicles are equally as stringent as the standards applicable to trucks, if not more so.

SINCERELY,

BUSBY AND REHM

June 21, 1977

Joseph J. Levin, Jr. Chief Counsel National Highway Traffic and Safety Administration U.S. Department of Transportation

On behalf of our client, Subaru of America, Inc. (Subaru). we hereby request that you send a letter to the U.S. Customs Service (Customs) correcting advice that the National Highway Traffic and Safety Administration (NHTSA) gave Customs in light of incomplete and indeed misleading information furnished to NHTSA.

In the next few months, Subaru intends to import a new vehicle -- to be known as a camper -- that is a modification of its station wagon and has an open area in the rear with two permanent seats facing backwards. It is intended primarily to move people, rather than cargo, and will be used both on and off highway by hunters, fishermen, campers, and the like. In its letters to Customs dated March 19 and June 1, 1976, Subaru provided a full description of the design and operation of the vehicle, and copies of these letters are enclosed for your information. Also enclosed is a photograph of the rear area showing the permanent seats.

On October 1, 1976, Customs issued a formal ruling concluding that the Subaru camper is not a truck. A copy of this ruling is also enclosed. Recently, the District Director of Customs in Houston, Texas, has requested reconsideration of this ruling taking the position that the vehicle is a truck. In support of his position, he submitted his letter of December 15, 1976, to Mr. Robert Aubuchon of NHTSA and a letter of January 17, 1977, from Mr. Francis Armstrong of NHTSA, the letter stating that "we concur with your opinion that the vehicle is classifiable as a truck." Copies of these two letters are also enclosed.

We believe, first, that NHTSA was misled by the District Director's letter of December 15, 1976, and, second, that a review of all the encloures will make it clear that the Subaru camper is, under NHTSA's own definitions, not a truck, but rather a multipurpose passenger vehicle.

As to our first point, we would emphasize two portions of the District Director's letter, in particular. In the first place, he refers to "lightweight trucks, such as the type shown in the enclosed photograph [that is, the Subaru camper]." But the District Director fails to state that this vehicle had already been formally determined by Customs not to be a truck. In the second place, the letter states that Customs "has been informed by the manufacturer that the '. . . design or appearance of the . . . vehicle is that of the El Canino and Ranchero, domestically produced vehicles, but smaller.'" The El Camino and Ranchero are admittedly considered pickup trucks. But Subaru never made the statement attributed to it, as a review of its letters of March 19 and June 1, 1976, will reveal. More importantly, the statement was made in Customs' ruling, and it was in spite of its appearance that the vehicle was determined not to be a truck.

As to our second point, the following two definitions included in section 571.3(b) of NHTSA's regulations are pertinent:

"'Multipurpose passenger vehicle' means a motor vehicle with motive power, except a trailer, designed to carry 10 persons or less which is constructed either on a truck chassis or with special features for occasional off-road operation."

"'Truck' means a motor vehicle with motive power, except a trailer, designed primarily for the transportation of property or special purpose equipment."

The Subaru camper is not a truck, since it is designed primarily for the transportation of people, not property or special purpose equipment. This was the critical conclusion of the last paragraph of Customs' ruling. That conclusion is wholly consistent with the design, intended use, and designation of the Subaru camper. It is designed as a modified station wagon with the rear seat facing backward rather than forward, and in the open rather than enclosed. It is intended to be used to carry persons and only a limited amount of equipment -- not exceeding 250 pounds with all four seats occupied. It will be designated and advertised as a passenger vehicle, with a special warning against using it as a pickup truck.

The Subaru camper clearly satisfies the definition of a multipurpose passenger vehicle. It is a vehicle designed to carry four persons, and it is constructed with special features for occasional off-road operation. These features include four-wheel drive and the open rear area.

The views of NHTSA will have a decided bearing on the decision of Customs whether to confirm its ruling of October 1, 1976. We believe that you will agree that NHTSA was not given a full and fair statement of the facts before Mr. Armstrong signed the letter dated January 17, 1977. We therefore respectfully request that you send a letter to Mr. Salvatore E. Caramagno, the signer of Customs' ruling, advising him that, based upon a review of the entire record, the Subaru camper is a multipurpose passenger vehicle. Such a letter would ensure both a sound and a fair disposition of the District Director's request for reconsideration.

John B. Rehm

cc: TAYLOR VINSON

ID: 77-3.28

TYPE: INTERPRETATION-NHTSA

DATE: 07/15/77

FROM: AUTHOR UNAVAILABLE; J. J. Levin, Jr.; NHTSA

TO: Algus Enterprises, Inc.

TITLE: FMVSS INTERPRETATION

TEXT: This responds to your June 27, 1977, letter asking whether tires that you export for use on agricultural vehicles are required by the National Highway Traffic Safety Administration (NHTSA) to be labeled with the letters DOT.

The answer to your question is no, unless the tires can also be used on vehicles other than agricultural vehicles. If the tires can be so used, they must be marked with the DOT symbol and meet any Federal requirements applicable to them.

Sincerely,

ATTACH.

Algus Enterprises, Inc.

June 27, 1977

J. J. Levin -- Chief Counsel National Highway Traffic Safety Administration, U.S. Department of Transportation

Dear Sir:

Your name was kindly refered to us by Mr. Casanova, in the Tire Division of the Department of Transportation, because we are in need of your assistance.

Our firm specializes in the exportation of tires. Our major market at this time is Venezuela, and we have a small problem there.

A short time back we made a shipment of Agricultural tires to one of our clients. He contacted us this morning informing us that his shipment has not allowed in the country by the government agency "COVENIN" which is responsable for verification of quality on imports to Venezuela.

The reason they objected was that the Agricultural tires did not have the letters D.O.T. on the actual tires. They do have the serial number and brand.

We informed him that Agricultural tires in the U.S. are not required to have the (D.O.T.) on them, only the registration number and tire brand are normal nomenclature on Agricultural tires.

He then informed us that the Venezuela government required a letter from the Department of Transportation confirming and explaining that Agricultural tires are not required to show the (D.O.T.) on the tire.

We respectfully request that you please send us a letter with the information they require, so that we may forward it to them.

It will supply the Venezuelan Government with proper information so that they may conduct their business properly.

In hopes that we may hear from you soon.

I remain,

Sincerely,

Gustavo R. Lima -- Vice-President

cc: files

ID: 77-3.29

TYPE: INTERPRETATION-NHTSA

DATE: 07/15/77

FROM: AUTHOR UNAVAILABLE; R. L. Carter; NHTSA

TO: Patton, Boggs & Blow

TITLE: FMVSS INTERPRETATION

TEXT: This responds to your April 20, 1977, petition to amend Standard No. 120, Tire Selection and Rims for Motor Vehicles Other Than Passenger Cars. In your petition, you request that the National Highway Traffic Safety Administration (NHTSA) permit the use of tires that have a maximum load rating of not less than 95% of the gross axle weight rating (GAWR) and not less than 95% of the gross vehicle weight rating (GVWR). Your petition is denied.

The problem addressed by your petition concerns a revision in the 1977 Tire and Rim Manual that alters the load rating of tires. In effect, this revision will result in lower load ratings for certain tires. According to the facts you submit, the change in tire load rating will be implemented by tire manufacturers throughout the next few months which may not provide vehicle manufacturers sufficient time to correspondingly alter the GAWRs of their vehicles in accordance with the new tire load ratings. Therefore, for a short period of time, you allege that it will be impossible to obtain tires that correspond to the GAWR indicated on the vehicle.

To alleviate the above problem, you recommend rulemaking that would permit vehicle manufacturers to install on their vehicles tires with load ratings slightly less than the GAWR of each axle. The NHTSA cannot permit the relief you request even for the limited time you propose. The intent of our tire standards is to provide minimum requirements for tires to ensure adequate safety. One of these minimum requirements mandates that the tire load rating be at least equal to the GAWR. Your request would have us reduce this minimum requirement. Since the matching of tires on a vehicle with the GAWR of each axle is such a basic principle of safety, the agency concludes that it would not be in the interest of safety to grant your request. Further, such an amendment might violate Section 202 of the National Traffic and Motor Vehicle Safety Act (15 U.S.C. @ 1381 et seq.), which requires that motor vehicles be equipped "with tires which meet the maximum permissible-load standards when such vehicle is fully loaded. . . ."

As you may know, the label requirements of Standard No. 120 which become effective in September permit you to list suitable tire and rim combinations on the vehicle. You need not equip a vehicle, however, with the tires indicated on the label. In this case, you may equip a trailer with any trailer tire that has a load rating equal to or greater than the GAWR of its associated axle. This may help resolve part of your problem with respect to a short term problem with matching tires on the vehicle with those indicated on the vehicle label.

ID: 77-3.3

TYPE: INTERPRETATION-NHTSA

DATE: 06/16/77

FROM: AUTHOR UNAVAILABLE; J. J. Levin, Jr.; NHTSA

TO: Lucas Industries North America, Inc.

TITLE: FMVSS INTERPRETATION

TEXT: This is in reply to your letter of May 13, 1977, to the Administrator asking whether the circuitry diagram that you enclosed would allow compliance with S4.5.2 of Federal Motor Vehicle Safety Standard No. 108.

Paragraph S4.5.2 requires that "each vehicle shall have a means for indicating to the driver when the upper beams of the headlamps are on that conforms to SAE Recommended Practice J564a, April 1964 . . . ." Your diagram appears to meet the specifications of J564a allowing compliance of the system with S4.5.2 when installed in a motor vehicle. The entity legally responsible for compliance with S4.5.2, of course, is the vehicle manufacturer who must certify that its products meet all applicable Federal motor vehicle safety standards.

YOURS TRULY,

Lucas Industries North America Inc

MAY 13, 1977

The Administrator National Highway Traffic Safety Administration

Our sister company in Birmingham England, Lucas Electrical Limited, requests clarification of Section 4.5.2 of Standard 108 - Lamps, Reflective Devices and Associated Equipment - and SAE Recommended Practice J564, which is referenced in Standard 108, Section 4.5.2.

We submit a diagram of a four headlamp installation in which a Lucas Model 21SA switch and a normally closed relay is used to ensure that the headlight circuits cannot be held in the open condition. Manual and auto reset switches are also included in the circuit to ensure correct circuit operation. We are also submitting traces showing the transient voltage conditions when switching from:

a) Main beam to dip beam

b) Dip beam to main beam

This circuitry we have developed allows, as far as we are aware, for us to comply with Section 4.5.2 of Standard 108. We look forward to receiving whatever comments you deem applicable and will be pleased to supply additional material if you so desire.

Eric E Gough Staff Assistant (Technical) 21SA HEADLAMP BEAM SWITCH CIRCUIT

(Graphics omitted) (Illegible Text)

(Graphic omitted)

ID: 77-3.30

TYPE: INTERPRETATION-NHTSA

DATE: 07/18/77

FROM: AUTHOR UNAVAILABLE; Robert L. Carter; NHTSA

TO: Michelin Tire Corporation

TITLE: FMVSR INTERPRETATION

TEXT: This responds to Michelin's March 23, 1977, letter concerning its February 20, 1976 petition for reconsideration of Standard No. 120, Tire Selection and Rims for Motor Vehicles Other Than Passenger Cars. Your petition for reconsideration was responded to on February 7, 1977 (42 FR 7140). By this letter, you attempt to resubmit your petition for reconsideration.

Petitions for reconsideration must be received by the agency within 30 days of the publication of a notice. Since the resubmission of your petition is untimely, it has been considered a petition for rulemaking as required by Part 553.35 of our regulations (Code of Federal Regulations, Volume 49). The National Highway Traffic Safety Administration (NHTSA) denies your requested rulemaking.

Your petition suggests that consumers will be confused by the tire label information if the vehicle is not equipped with the tires identified on the label. The agency has determined that confusion will be minimized by the use of the optional heading "Suitable Tire-Rim Choice."

Your petition raises a second problem concerning tires of identical size designations manufactured by different companies. These tires may have different inflation pressures even though their sizes are identical. The agency understands that this difference in inflation pressure could result in confusion. Manufacturers, however, can avoid this problem through the use of the manufacturer's name on the tire information label as part of the tire information. Use of the manufacturer's name on the label should distinguish between two otherwise similar tires.

SINCERELY,

MARCH 23, 1977

Docket Section National Highway Traffic Safety Administration

Re: Petition for Reconsideration

Docket No. 71-19; Notice 6

Part 567 - Certification

Docket No. 75-32; Notice 2

Part 571 - Federal Motor Vehicle Safety Standard 120 Tire Selection and Rims for Motor Vehicles other than Passenger Cars We are writing regarding your response to our petition for re-consideration of FMVSS 120 which we submitted February 20, 1976, wherein we requested deletion of the requirement that tire information appear on the certification label. It is our contention that many consumers upon seeing this label will be led to believe that the tires listed are the only tires that can be legally used on the vehicle and that the inflation pressures on the label are the required operating pressures for the tires.

In addition, the inclusion of tire pressures on the FMVSS 120 certification label will be especially confusing since tires of the same size designation can require different pressures for the same load carrying capacity.

In the response to our petition, which appeared in the Federal Register Vol. 42, No. 25 dated Monday, February 7, 1977, it is stated that it is the agency's view that any possibility of confusion can easily be avoided by an indication that the tire designation represents a radial tire, so that a person substituting a non-radial tire size with the same designation is aware that the two tires are not identical.

However, we wish to point out to the agency that we were not only referring to tires of different constructions but also to tires of the same construction. For example, a Michelin 10.00R20 LR G radial tire carrying a tire load of 6040 lbs. requires 100 psi whereas a 10.00R20 LR G radial tire standardized by the American Tire and Rim Association requires 105 psi for the same load.

Since FMVSS 119 does not require tires of the same size designation to have identical load/inflation values, the fact is that many Michelin tires have different pressure requirements than T&RA tires of the same size -- designations, even though they are both radial tires. This fact could, in some cases, cause users to underinflate their tires based on the inflation pressure indicated on the certification label.

We therefore re-submit our petition for re-consideration and once again urge the agency to reconsider the necessity of requiring information on the certification label that will lead to a great deal of confusion. We request that the requirement that tire information appear on the certification label be deleted.

MICHELIN TIRE CORPORATION Technical Group

John B. White Engineering Manager Technical Information Dept.

ID: 77-3.31

TYPE: INTERPRETATION-NHTSA

DATE: 07/19/77

FROM: AUTHOR UNAVAILABLE; J. J. Levin, Jr.; NHTSA

TO: Bankhead Enterprises, Inc.

TITLE: FMVSS INTERPRETATION

TEXT: This responds to your June 7, 1977, question whether the trailer portion of an auto transporter must comply with Standard No. 121, Air Brake Systems, if it is manufactured after the current September 1, 1977, termination date for the exclusion of auto transporters from the standard.

As stated in a telephone conversation between you and Mr. Herlihy of this office, the current exclusion for auto transporters terminates September 1, 1977, and either portion of an auto transporter manufactured after that date must comply. Recently, the NHTSA proposed extension of the auto transporter exclusion from September 1, 1977, to January 1, 1979 (copy of proposal enclosed). The comment closing period ended July 11, 1977, and the agency hopes to reach a decision on the proposal in the near future.

SINCERELY,

BANKHEAD ENTERPRISES, INC.

June 7, 1977

Joan Claybrooks Administrator National Highway Safety Administration

Enclosed find copy of a letter from one of our customers asking us to quote on 80 new car hauling trailers for delivery after current expiration of S-121. Please note that trucks furnished by customer will be manufactured prior to Sept. 1 and without the S-121 brakes. Customer is asking if we can produce the trailer without S-121. Out current design will not accept the components for S-121. Engineering drawings will be furnished under separate cover.

It is of utmost importance that a ruling on extension of S-121 is rendered. Your prompt attention is very much appreciated.

Glenn Taylor President

May 10, 1977

Mr. Glenn Taylor, President Bankhead Enterprises

This is your invitation to bid on 80 trailers and headracks. The tractors will be conventional cab GMC's, 9500 series with tilt hoods. Specifications include 6V-92 TT engines, GMC air suspensions, tandem axle drives and disc wheels with 1122.5 tires. You should outline in your quotation the number of imports, A-bodies, B-bodies, C-bodies, compacts, pickups, vans and variations of other combinations your unit will carry. This quotation should include tractor wheelbase, also itemized price of trailer, headrack, excise tax and freight f.o.b. Dallas, Texas.

GMC has advised the tractors will be produced prior to September 1st. This will enable us to beat the deadline on 121. As the units are ready they can be shipped to your plant. However, we do not want to start putting these units in service until January 1, 1978. We would like to know if you can produce your trailers so they also will not have the 121 brake system. Equipment must comply with all federal and state regulations.

We would appreciate receiving the above information at your earliest convenience. Specification sheets are enclosed. Should there be any questions, please contact my office.

UNITED TRANSPORTS, INC.

Karon W. Thomas Director of Maintenance and Equipment

cc: RAYMOND E. SIMMONS -- UT

ID: 77-3.32

TYPE: INTERPRETATION-NHTSA

DATE: 07/22/77

FROM: AUTHOR UNAVAILABLE; Joan Claybrook; NHTSA

TO: Hon. R. W. Straub - Governor of Oregon

TITLE: FMVSS INTERPRETATION

TEXT: The purpose of this letter is to express this agency's views on legislation recently enacted by the State of Oregon which appears to be preempted by Federal legislation of the same subject matter.

Specifically, we understand that ORS 483.404 was amended in June 1977 to require that headlamps on motor vehicles registered in Oregon meet the standards established for such under the National Traffic and Motor Vehicle Safety Act of 1966 or

". . . the United Nations Agreement concerning the Adoption of Approval and Reciprocal Recognition of Approval for Motor Vehicle Equipment and Parts; done at Geneva on 20 March 1958, as amended and adopted by the Canadian Standards Association (CSA Standard 106.2) or both."

Under 15 U.S.C. 1392(d):

"Whenever a Federal motor vehicle safety standard established under this title is in effect, no State or political subdivision of a State shall have any authority either to establish, or to continue in effect, with respect to any motor vehicle or item of motor vehicle equipment any safety standard applicable to the same aspect of performance of such vehicle or item of equipment which is not identical to the Federal standard." [Emphasis added.]

Pursuant to 15 U.S.C. 1392(a) [Section 103(a) of the National Traffic and Motor Vehicle Safety Act of 1966] Federal Motor Vehicle Safety Standard No. 108, Lamps, Reflective Devices, and Associated Equipment (49 CFR 571.108), has been established, effective January 1, 1972, as the Federal standard for lighting devices both as original and replacement equipment on motor vehicles.

The United Nations Agreement, and this Agreement as amended by the Canadian Standards Association, permits the use of motor vehicle headlamps that are not of sealed beam construction and whose candlepower output may exceed 75,000. Further, they do not require that the headlamps be mechanically aimable. Standard No. 108, on the other hand, requires that headlamps a passenger vehicles be of sealed beam construction, imposes a limit of 75,000 candlepower on all but one type of headlamp, and specifies that all headlamps be mechanically aimable. Thus, the United Nations Agreement, and that Agreement as amended by the Canadian Standards Association, do not specify requirements for headlamps that are identical to those of Standard No. 108. This means that this part of the amendment to ORS 483.404 is, in our opinion, preempted by 15 U.S.C. 1392(d), and of no legal effect.

As a consequence, it is our conclusion that any person in Oregon manufacturing for sale, selling, offering for sale, introducing or delivering for introduction in interstate commerce, or importing into the United States through the State of Oregon any lighting equipment that does not conform to Standard No. 108, in reliance upon ORS 483.404, could be subject to civil penalties for apparent violations of 15 U.S.C. 1397(a)(1)(A) in an amount up to $ 800,000 (15 U.S.C. 1398(a)), and to a restraining order (15 U.S.C. 1399(a)). There is no preemption, however, of your State's right to specify requirements for lighting equipment not currently included in Standard No. 108 (e.g. foglamps).

Section 1392(d) and the Act's preemptive effect have been invariably upheld. (See e.g. Chrysler Corp. v. Malloy, 294 F. Supp. 524 (U.S.D.C. Vt. 1968), Chrysler Corp. v. Tofany, 419 F.2d 499 (C.C.A. 2 1969)). We would also observe that the interpretation by an administering agency of its own statutes and regulations, has been viewed by courts as "of controlling weight." (Thorpe v. Housing Authority of Durham, 393 U.S. 268 (1969) quoted with approval in Chrysler Corp. v. Tofany, supra, at 512.)

We would appreciate the views of the State of Oregon on this subject. Questions on it may be referred to the Chief Counsel of this agency, Joseph J. Levin, Jr. The agency's position on this matter was presented previously in a letter dated May 27, 1977, from Mr. Levin to the Administrator of the Oregon Senate Transportation Committee. The Committee, however, chose to disregard our opinion, when it considered Oregon House Bill 2998 and recommended its passage.

ID: 77-3.33

TYPE: INTERPRETATION-NHTSA

DATE: 07/22/77

FROM: AUTHOR UNAVAILABLE; Joan Claybrook; NHTSA

TO: Hon. C. L. Ray - Governor of Washington; DIXY LEE RAY -- GOVERNOR OF WASHINGTON

TITLE: FMVSS INTERPRETATION

TEXT: The purpose of this letter is to express this agency's views on legislation recently enacted by the State of Washington, which appears to be preempted by Federal regulation of the same subject matter.

Specifically we understand that R.C.W. @ 46.37.320 was amended in May 1977 to require that motor vehicle "lighting devices"

". . . shall correlate with, and, so far as practicable, conform to the then current standards and specifications of the society of automotive engineers applicable to such equipment and to the headlamp standards established by the United Nations agreement concerning the adoption of approval and reciprocal recognition of approval for motor vehicle equipment and parts done at Geneva on March 20, 1958, as amended and adopted by the Canadian standards association (CSA standard D106.2): Provided, that the sale, installation, and use of any headlamp meeting the standards of either the society of automotive engineers or the United Nations agreement, as amended, shall be lawful in this state."

Under 15 U.S.C. 1392(d):

"Whenever a Federal motor vehicle safety standard established under this title is in effect, no State or political subdivision of a State shall have any authority either to establish, or to continue in effect, with respect to any motor vehicle or item of motor vehicle equipment any safety standard applicable to the same aspect of performance of such vehicle or item of equipment which is not identical to the Federal standard." [Emphasis added.]

Pursuant to 15 U.S.C. 1392(a) [Section 103(a) of the National Traffic and Motor Vehicle Safety Act of 1966] Federal Motor Vehicle Safety Standard No. 108, Lamps, Reflective Devices, and Associated Equipment (49 CFR 571.108), has been established, effective January 1, 1972, as the Federal standard for lighting devices both as original and replacement equipment on motor vehicles.

Although Standard No. 108 incorporates by reference many lighting standards of the Society of Automotive Engineers (SAE) it contains numerous qualifications of, and variations from, the SAE specifications. Even when Federal requirements and SAE specifications are identical, amendments by the SAE, which occur frequently, do not amend the corresponding Federal requirements. In short, that portion of the amendment to RCW @ 46.37.320 requiring compliance to SAE specifications does not establish requirements that are identical to those of Standard No. 108 and, in our opinion, are preempted by 15 U.S.C. 1392(d) and of no legal effect.

In addition, the United Nations Agreement, as amended by the Canadian Standards Association, permits the use of motor vehicle headlamps that are not of sealed beam construction and whose candlepower output may exceed 75,000. Further, it does not require that the headlamps be mechanically aimable. Standard No. 108, on the other hand, requires that headlamps on passenger vehicles be of sealed beam construction, imposes a limit of 75,000 candlepower on all but one type of headlamp, and specifies that all headlamps be mechanically aimable. Thus, the United Nations Agreement, as amended by the Canadian Standards Association, does not specify requirements for headlamps that are identical to those of Standard No. 108. This means that this part of the amendment to R.C.W. @ 46.37.320 is, in our opinion, also preempted by 15 U.S.C. 1392(d), and of no legal effect.

As a consequence, it is our conclusion that any person in Washington manufacturing for sale, selling, offering for sale, introducing or delivering for introduction in interstate commerce, or importing into the United States through the State of Washington any lighting equipment that does not conform to Standard No. 108, in reliance upon R.C.W. @ 46.37.320, could be subject to civil penalties for apparent violations of 15 U.S.C. 1397(a)(1)(A) in an amount up to $ 800,000 (15 1399(a)). There is no preemption, however, of your State's right to specify requirements for lighting equipment not currently included in Standard No. 108 (e.g. foglamps).

Section 1392(d) and the Act's preemptive effect have been invariably upheld. (See e.g. Chrysler Corp. v. Malloy, 294 F. Supp. 524 (U.S.D.C. Vt. 1968), Chrysler Corp. v. Tofany, 419 F.2d 499 (C.C.A. 2 1969)). We would also observe that the interpretation by an administering agency of its own statutes and regulations, has been viewed by courts as "of controlling weight." (Thorpe v. Housing Authority of Durham, 393 U.S. 268 (1969) quoted with approval in Chrysler Corp. v. Tofany, supra, at 512.)

We would appreciate the views of the State of Washington on this subject. Questions on it may be referred to the Chief Counsel of this agency, Joseph J. Levin, Jr.

ID: 77-3.34

TYPE: INTERPRETATION-NHTSA

DATE: 07/25/77

FROM: AUTHOR UNAVAILABLE; Joseph J. Levin Jr.; NHTSA

TO: Daido Kohyo Co. Ltd.

TITLE: FMVSR INTERPRETATION

TEXT: This responds to your April 30, 1977, comments concerning Standard No. 120, Tire Selection and Rims for Motor Vehicles Other Than Passenger Cars. Your comments question the advisability of requiring the rim size designation to be stated in the order of diameter by width. This designation would be the reverse of existing Japanese and European practices.

The National Highway Traffic Safety Administration (NHTSA) examined this issue in its response to petitions for reconsideration of Standard No. 120 (42 FR 7140). The agency determined that the rim size designation should be expressed on the label in the manner proposed in the standard (diameter by width) to avoid confusion with the tire size designation which is measured in terms of width by diameter. Since publication of our response to petitions for reconsideration (which included your petition), we have received no information presenting new reasons to alter the chosen format. Therefore, the NHTSA will continue to implement the standard as published in the February 7 Notice.

In a second question, you ask whether the NHTSA requires that the information specified in S5.2 of the standard be listed in any particular order. Although the agency has not specified the order in which the information required in S5.2 should be listed, the NHTSA expects that for purposes of clarity the information in paragraphs (a), (b), and (c) would be grouped together as would the information in paragraphs (d) and (e).

Finally, you note that the symbol "JIS" must be marked on the rim in accordance with requirements of the Japanese Industrial Standard while NHTSA requires only the letter "J." For purposes of uniformity the agency will continue to require the letter "J" even though this may result in the double marking situation to which you refer.

I trust that this responds fully to your comments.

SINCERELY,

DAIDO KOGYO CO. LTD.

April 30, 1977

ATT: THE DOCKET ROOM, NATIONAL HIGHWAY TRAFFIC SAFETY ADMINISTRATION

SUBJECT: Written Comment as for Rim Size Designation defined in (Docket No. 71-19: Notice 06: Docket No. 75-32: Notice 02) Part 572.

Reference is made to the above mentioned FMVSS as to Tire Selection and Rims for Motor Vehicle other than Passenger Cars.

The rim size designation is defined to mean the rim diameter and width, and this designation order, a diameter designation followed by a width designation, is to distinguish rim designation from tire designation. However, this order of designation is hardly agreeable for us to follow. And we have also a couple of questions to which we would like to obtain your prompt reply.

(1). ISO/TC31/SC10 has been holding meetings four times during the period from June, 1974 to February, 1977, and we, DAIDO, has been taking part in these meetings as representative from Japan and making every endeavor to ISO-rize motorcycle rims.

But it has been never down for discussion that a width designation followed by a diameter designation had better be changed to a diameter designation followed by a width designation. whereas the former designation has been conventionally used in Japan and European countries.

We write here in addition that Mr. Hollis, the representative from U.S.A., has never brought this matter forward at ISO meeting in the past.

(2). There is a danger that the one effort change of conventional rim size designation will create many troubles and confusion, which must be, we feel, more serious as compared with the confusion with tire designation.

For instance, a rim designated as 1.6 x 13 by conventional designation should be changed to 18 x 1.6 in accordance with FMVSS. At this, most of people who have been familiar with conventional designation may regard this rim as 18" width and 16" diameter unintentionally.

We would like to point out the fact that catalogues or brochures of most motorcycle distributors and dealers in U.S.A. list rim size designation as (width) x (diameter). This means that most people concerned in motorcycle trade are already familiar with the said rim designation.

(3). We understand that tire designation is (width) - (diameter) and conventional rim designation is (width) x (diameter). Here is, we can see, distinctive difference of designation, which is "-" and "x" located between width designation and diameter designation.

Even though the order of width designation and diameter designation is same between tire and rim, we feel confident that if you appeal further to a large public such rim designation will not create any troubles and confusion as ever.

(4). S5.2 "Rim marking" requires that each rim or wheel disc in case of singlepiece wheel be marked with informations listed in paragraph (a) through (e). Our question is whether these informations should be marked correspondingly to the order of (a) through (e), or random arrangement of each paragraph is acceptable.

(5). We understand that there is no restriction in marking any other informations than the requirements of FMVSS specified in S5.2. We, Japanese manufacturer, must put JIS marking in accordance with the requirement of Japanese Industrial Standard if the product is approved and authorized by JIS Authority, while it is requested to put "J" mark by order of FMVSS. This means that we are under an obligation to mark both "J" and "JIS".

We have been preparing for the enforcement date of FMVSS based on our own understanding to rim marking requirement, until the receipt of revised NHTSA notice which was issued on January 23, 1977.

We are now facing serious troubles and worrying about if our motorcycle rims can meet with the requirements of FMVSS and with the effective date, August 1st, 1977.

We would appreciate receiving your prompt comments and reply in the above mentioned regards.

Thank you very much and we remain.

(p.s.: We will write to Mr. Malinverni, chairman of ISO/TC31/SC10, to ask his opinions and the future course of ISO. After this we will possibly submit our comments again to you.)

Takeo Shimoguchi General Manager