ID: nht89-1.24

TYPE: INTERPRETATION-NHTSA

DATE: 02/23/89

FROM: DIANE K. STEED -- NHTSA

TO: HOWARD WOLPE -- U.S. HOUSE OF REPRESENTATIVES

TITLE: NONE

ATTACHMT: TRANSMITTAL LETTER DATED 12/21/88 FROM HOWARD WOLPE -- CONGRESS TO JAMES BURNLEY; LETTER DATED 12/12/88 FROM DENNIS D. FURR TO HOWARD WOLPE -- CONGRESS

TEXT: Dear Mr. Wolpe:

Thank you for your letter to former Secretary Burnley on behalf of your constituent, Mr. Dennis Furr of Lansing, Michigan. I've been asked to respond to your letter since the National Highway Traffic Safety Administration (NHTSA) is responsible for admi nistering Federal programs relating to school bus safety.

Mr. Furr is concerned about the potential safety problems that may result if school bus seats are being overloaded. In particular, Mr. Furr asks whether NHTSA's Highway Safety Program Guideline (HSPG) No. 17, Pupil Transportation Safety (23 CFR @ 1204.4 ), is consistent with Federal Motor Vehicle Safety Standard (FMVSS) No. 222, School Bus Passenger Seating and Crash Protection (49 CFR @ 571.222), with regard to seating specifications. Mr. Furr is particularly interested in how manufacturers are calcul ating the number of seating positions on a bench seat.

I am pleased to address your constituent's concerns. Before I begin, I want to note that we have answered a number of similar inquiries from Mr. Furr in past years.

We have two sets of "regulations" for school buses. The first, issued under the Vehicle Safety Act, includes our motor vehicle safety standards which apply to the manufacture and sale of new school buses. Compliance with these standards is mandatory fo r new vehicle manufacturers, and is enforced by this agency with civil penalties. FMVSS No. 222, with which your constituent is concerned, is one such safety standard. The second set of "regulations," or guidelines, for school buses was issued under th e Highway Safety Act. Guidelines issued under this Act are not mandatory for the states; rather, they are recommended practices. Highway Safety Program Guideline No. 17, to which Mr. Furr frequently refers in his letter, consists of recommendations to the States for operating their school buses and pertains to Federal funding of State highway safety programs.

Both FMVSS No. 222 and Guideline No. 17 contain specifications for school bus seating. Paragraph S4.1 of FMVSS No. 222 states: "The number of

seating positions considered to be in a bench seat is expressed by the symbol W, and calculated as the bench width in inches divided by 15 and rounded to the nearest whole number." The guideline for seating accommodations in HSPG 17 states:

Seating should be provided that will permit each occupant to sit in a seat in a plan view lateral location, intended by the manufacturers to provide seating accommodation for a person at least as large as a 5th percentile adult female, as defined in 4 9 CFR 571.3.

Mr. Furr appears to see a conflict between the formula used in calculating the forces to be applied to the seats of large school buses under FMVSS No. 222, on the one hand, and the use by States and manufacturers of 13-inch seating positions for rating t he capacity of a 39-inch seat, on the other hand. I believe that Mr. Furr's belief in the existence of a conflict rests on a misunderstanding.

We view Standard No. 222 and HSPG 17 as complementary, not inconsistent. HSPG 17 reflects NHTSA's belief that all school bus passengers should be seated in the interest of safety. To that end, the guideline provides that there should be a seating posit ion for each passenger and that the position should be at least large enough to accommodate a 5th percentile adult female. The hip width (sitting) of a 5th percentile adult female is 12.8 inches.

The figure "15" in FMVSS No. 222's compliance formula is not a minimum requirement for the width of a seating position. It is the number which is used to establish the number of designated seating positions and ensures that the forces applied to the sea t during compliance tests are reasonable reflections of the crash forces that would be involved in a real-world crash. It is also the number which ensures that the width of the smallest seat is approximately equal to the hip width of the 5th percentile female. That is consistent with HSPG 17 which provides that seating positions shall be at least large enough for a 5th percentile female. Use of the figure "15" in the FMVSS No. 222 formula results in a minimum seating position width of 12.67 inches (f or a 38-inch wide seat.) That is only slightly smaller than the 12.8 inch hip width of the 5th percentile female. For a 39-inch wide seat, the single position width is 13 inches, which is slightly larger than the hip width of a 5th percentile female.

It should be remembered, however, that the number of seating positions derived from the FMVSS No. 222 formula is not meant to be a measure of the absolute capacity of the bus for all size occupants. We recognize that, in practice, school buses transport a tremendously wide variety of student sizes. For example, a bus that may be capable of easily accommodating 65 preschool or elementary students may be capable of carrying only 43 high school students. When the bus is used to transport students of wide ly varying ages and sizes, reasonable accommodations may vary between those values. The decision on how many passengers may be

comfortably and safely accommodated, therefore, is a decision that must be reached by the bus operator, in light of the ages and sizes of passengers involved.

NHTSA does not have the authority under either the Highway Safety Act or Vehicle Safety Act to regulate how States use school buses. Therefore, NHTSA could not preclude a State from carrying more passengers on a bench seat than there are designated seat ing positions. However, this agency argues with Mr. Furr that a student should not sit on a seat unless the student can sit fully on the seat instead of sitting only partially on the seat and thus only being partially protected by the compartmentalizati on. We believe that Mr. Furr's concerns as they apply to public schools would be best addressed by his working with the local school board and state officials.

Mr. Furr is also concerned about a reference in our occupant crash protection standard (No. 208) to a 95th-percentile adult male occupant size. He asks why FMVSS No. 222 uses a 15-inch seat dimension, when FMVSS No. 208 references the 95th-percentile ad ult male occupant size in specifying occupant sizes which safety belts must adjust to fit.

Both FMVSS No. 208 and FMVSS No. 222 are directed at providing occupant crash protection. Both of these standards set forth comprehensive requirements that are directed at protecting occupants likely to be inside a vehicle in a crash. With regard to sch ool buses, the agency determined that the crash protection requirements should be developed taking into account the full size range of passengers typically riding on school buses. If we designed the force and deflection (energy-absorbing) characteristic s of the seats for the 95th percentile males, the seats may be too stiff for a small child.

Finally, Mr. Furr asks whether, when voluntarily installing safety belts on large school buses, States are violating Federal law by using S4.1 of FMVSS No. 222 in determining how many positions (and belts) there are on a bench seat. The answer is no. FM VSS No. 222 requires safety belts only for the passenger positions of small (10,000 pounds or less GVWR) school buses. Under S5 of the standard, belts on a small school bus bench seat are installed at "W" seating positions, as determined under S4.1. If a State wishes to order belts on its new large school bus and to use the same method for determining the number of belts to be installed, the State may do so.

I hope this information is helpful. If you have any further questions, please do not hesitate to contact me.

Sincerely,

ID: nht87-2.95

TYPE: INTERPRETATION-NHTSA

DATE: 09/18/87

FROM: AUTHOR UNAVAILABLE; Erika Z. Jones; NHTSA

TO: J. Douglas Hand -- General Motors Legal Staff

TITLE: FMVSS INTERPRETATION

ATTACHMT: 10/15/87 letter from Erika Z. Jones to G.T. Doe (Std. 208; Std. 216); 2/5/87 letter from G.T. Doe to Erika Z. Jones (occ 176)

TEXT:

J. Douglas Hand, Esq. Legal Staff General Motors Corporation P.O. Box 33122 Detroit, MI 48232

This responds to your letter seeking an interpretation of Standard No. 208, Occupant Crash Protection (49 CFR S571.208). Specifically, you asked whether General Motors Corporation (GM can be deemed the manufacturer of passenger cars produced by Lotus Car s Limited (LCL) for the purposes of S4.1.3.5, the manufacturer attribution provisions of Standard No. 208. After we received your letter, you made us aware of certain changed circumstances. In your letter, you stated that GM did not own the entity that w as the exclusive importer of Lotus Vehicles, and that GM owned 96 percent of LCL. Subsequently, you have told us that GM wholly owns the companies that import and market Lotus vehicles in the United States and that GM wholly owns LCL. This letter of inte rpretation is based on the GM -Lotus corporate relationship described in this letter. To the extent that the description in this letter differs from the description set forth in your August, 1986 letter, if reflects our understanding of the change circum stances. Our conclusion is that, since GM sponsors the importation, distribution, and marketing of these cars, GM may be considered the manufacturer of cars produced by LCL for the purposes of standard No. 208.

You explained that LCL is a part of Group Lotus, a United Kingdom company that provides engineering services to various motor vehicle manufactures and produces fewer than a thousand passenger cars a year. Group Lotus is a wholly-owned subsidiary of GM, a lthough LCL designs, builds, and certifies its cars without GM's advice. Approximately 200 Lotus Performance Cars, Limited Partnership (LPC), a wholly-owned subsidiary of GM. Lotus cars are marketed and distributed in the United States by Lotus Cars USA, Inc., another wholly-owned subsidiary of GM. Hence, GM owns the company that designs and assembles these cars, and GM owns the companies that import and market the vehicles.

Section 102(5) of the National Traffic and Motor Vehicle Safety Act (15 U.S.C. 1391(5)) defines "manufacturer" as many person engaged in the manufacturing or assembling of motor vehicles or motor vehicle equipment, including any person importing motor ve hicles or motor vehicle equipment for resale." Under this definition, both LCL and LPC are statutory manufacturers of Lotus passenger cars. LCL designs and assembles the cars, and has filed a designation of agent for service of process with this agency, pursuant to 15 U.S.C. 1399(e). By filing a designation of agent, LCL has acknowledged that it is offering its cars for importation into the United State. LPC imports those cars into the United States.

Section S4.1.3.5 of Standard No. 208 sets forth provisions for instances in which passenger cars have more than one statutory "manufacturer." That section provides that the manufacturers may execute an express written contract to specify the manufacturer s to which the cars shall up attributed. In the absence of such a contract, S4.1.3.5.1(a) provides that imported passenger cars will be attributed to the importer. Since there is no such contract in this instance, application of this provision means that the Lotus passenger cars, which are produced in the United Kingdom, would be attributed to LPC, the GM subsidiary which imports the cars into the United States.

In the April 11, 1985, proposal to establish attribution requirements in the case of vehicles that have more than one statutory "manufacturer" (50, FR 14589), NHTSA stated that it considers the statutory definition of "manufacturer" to be sufficiently br oad to include sponsors, depending on the circumstances. See 50 FR 14596. The agency stated that if a sponsor contracts for another manufacturer to produce a design exclusively for the sponsor, the sponsor may be considered the manufacturer of those vehi cles, applying basic principles of agency law. On the other hand, the agency stated that the mere purchase of vehicles for resale by a company which also is a manufacturer of motor vehicles does not make the purchaser the manufacturer of those vehicles.

Applying these principles to your case, we conclude that GM sponsors the importation of the Lotus vehicles. Both LCL, the actual assembler, and LPC, the actual importer, are wholly-owned subsidiaries of GM. By itself, GM's ownership of both the producer and importer of these care might not be sufficient to establish that GM was the sponsor of these vehicles for the purposes of Standard No. 208. In addition, however, another GM wholly-owned subsidiary distributes and markets the vehicles in the United St ates. GM coordinates the activities of all these subsidiaries. Since GM wholly owns the actual producer of these vehicles and is actively involved in the importation, distribution, and marketing of these vehicles, we believe that GM should be considered to sponsor the importation of the Lotus vehicles. Accordingly, GM rather than LPC, may be considered the importer and manufacturer of these vehicles.

If you have any further questions, please let me know.

Sincerely.

Erika Z. Jones

Chief Counsel

August 29, 1986 Erika Z. Jones, Esq. Chief Counsel National Highway Traffic Safety Administration 400 Seventh Street, S.W. Washington, DC 20590

Dear Ms. Jones:

Re: Interpretation of Multiple Manufacturer

Provision of FMVSS 208 Phase-In

This letter is written to request an interpretation of S4.1.3.5 of FMVSS 208. As you will recall, this portion of the standard provides that where more than one manufacturer is involved in the production of a passenger car, the manufacturers are permitte d to determine between or among themselves, by express written contract, which of them shall be deemed the manufacturer of the vehicle for purposes of meeting the phase-in requirements of FMVSS 208. In the absence of such an agreement, domestic passenger cars produced by more than one manufacturer are attributed to the manufacturer marketing the vehicles, and imported ones are attributed to the manufacturer importing them.

The specific subject matter of the interpretation we are requesting in this letter was discussed at a meeting held at the NHTSA on August 27, 1986. Messrs. Wood, Oesch, and Vinson of your staff represented the agency; Mr. R. F. Humphrey of General Motors Washington Office and I represented GM; and Mr. G. E. Atkin represented Lotus Cars Limited. After a discussion of the issues involved, the members of your staff suggested that a written request for interpretation would be appropriate. This letter is a r esult of that suggestion. The facts comprising the issue we are concerned with, and our specific request for an interpretation of the phase-in provisions of FMVSS 208, are as follows.

Lotus Cars Limited (Lotus) is part of Group Lotus, a United Kingdom firm that provides engineering services to various motor vehicle manufacturers and itself produces several hundred passenger cars each year. Lotus passenger cars are imported into the Un ited States under a contract between Lotus and Lotus Performance Cars (LPC), an American limited partnership. The contract gives LPC the exclusive right to distribute Lotus passenger cars in the United States, and LPC is the importer of record of Lotus p assenger cars. GM has recently purchased substantially all of the shares (approximately 96 percent) of Group Lotus. Neither GM nor Lotus owns any interest in LPC.

Of the somewhat less than 1,000 passenger cars produced by Lotus each year, approximately 200 are imported into the United States. In light of this fact, the phase-in requirements of FMVSS 208, which would obligate Lotus to install passive restraints on approximately 20 vehicles in model year 1987, 50 vehicles in 1988, and 80 vehicles in 1989, can be seen to impose an inordinate financial burden on Lotus.

The multiple manufacturer provision of FMVSS 208 was promulgated to give manufacturers the flexibility to deal with the uncertainties and anomalies created by the phase-in scheme for passive restraint requirements. In furthering this purpose, we believe that the agency should use reasonable flexibility in its interpretation of statutory and regulatory terms and definitions, viewing the business arrangements between manufacturers so as to fulfill the intent of the multiple manufacturer provision.

It is clear that Lotus, the designer and producer of Lotus passenger cars, is a manufacturer of those cars under the Safety Act and safety standards. It is also clear that LPC, the importer of Lotus passenger cars, is a statutory manufacturer. The interp retation we request from the agency is that General Motors, by virtue of its nearly total ownership of Lotus, may also be deemed a manufacturer of Lotus passenger cars for purposes of the multiple manufacturer provision of FMVSS 208.

Because it owns 96 percent of the shares of Group Lotus (an ownership level which will reach 100 percent within the foreseeable future), GM has a substantial and abiding concern in the long-term viability of Lotus, a concern that extends to the extraordi nary difficulties imposed upon Lotus by the phase-in provisions of the passive restraint rule. By permitting GM to substitute its vehicles for those of Lotus in determining compliance with the phase-in requirements, the NHTSA would do no violence to the language or spirit of the Safety Act, which is expansive enough to encompass the changing business relation-ships among manufacturers. The agency would also be fulfilling the intent of the multiple manufacturer provision of FMVSS 208, and would be rectif ying a particularly egregious example of the kind of inequity implicitly recognized by the adoption of the multiple manufacturer provision. Finally, this interpretation would not result in any reduction in the number of vehicles required to be equipped w ith passive restraints during the phase-in period. For all these reasons, we ask that the NHTSA issue the interpretation of the multiple manufacturer provision of FMVSS 208 that we have requested.

The other issue discussed during the August 27 meeting was the situation of Lotus in the event that the agency finds itself unable to concur with the interpretation of FMVSS 208 that I have outlined above. Lotus has concluded that if the agency is unable to issue our requested interpretation, Lotus finds it necessary to file a petition for exemption from the first year of the phase-in requirements of FMVSS 208 (that is, the requirement that 10 percent of the vehicles produced by each manufacturer during the period September 1, 1986 through September 1, 1987 be equipped with passive restraints). We are therefore enclosing with this letter a petition by Lotus for exemption from those requirements, as prescribed in 49 CFR Part 555. If the NHTSA is able to render the interpretation of FMVSS 208 that we have requested, the enclosed petition will be moot, and in that case, GM and Lotus request that the agency disregard the petition. If, however, the agency does not issue the interpretation we have requested above, Lotus requests that the agency act upon the enclosed petition and determine Lotus' entitlement to an exemption as expeditiously as possible.

If you have any questions about our request for an interpretation of FMVSS 208, please direct them to me. If the enclosed petition is not rendered moot by your interpretation of FMVSS 208, and you have any questions about the petition, please direct them to Mr. Graham Atkin of Lotus. Thank you for your attention to this matter.

Sincerely, J. Douglas Hand JDH: kt Attorney

Enclosure

ID: 1984-2.21

TYPE: INTERPRETATION-NHTSA

DATE: 07/05/84

FROM: AUTHOR UNAVAILABLE; Frank Berndt; NHTSA

TO: Mazda (North America) Inc.

TITLE: FMVSS INTERPRETATION

TEXT:

Mr. H. Nakaya Branch Manager Mazda (North America), Inc. 23777 Greenfield Road Suite 462 Southfield, Michigan 48075

Dear Mr. Nakaya:

This responds, to your letter dated January 20, 1984, concerning Federal Motor Vehicle Safety Standard (FMVSS) No. 101, Controls and Displays. You asked whether the standard would allow "a secondary, redundant control placed in the rear seat area facilitating operation of the heating/ventilation and audio system functions by rear seat passengers." As explained below, the answer to your question is yes.

By way of background information, the National Highway Traffic Safety Administration (NHTSA) does not pass approval on the compliance of any vehicle or equipment with a safety standard before the actual events that underlie certification. Under the Vehicle Safety Act, it is your responsibility as a manufacturer to determine whether your vehicles and equipment comply with all applicable safety standards and regulations, and to certify your products in accordance with that determination. The following interpretation only represents the agency' s opinion based on the information provided in your letter.

Your letter indicates that controls for the heating and ventilation unit would be placed in the rear seating area. You stated that these controls would be "redundant" and "secondary." NHTSA assumes that there will be additional controls for the various functions of the units that are operable by and visible to the driver of the vehicle which meet all applicable requirements of Standard No. 101.

Section 5.2.1 requires identifications of any hand-operated control listed in column 1 of Table 1 of that section to be visible to the driver. Listed in column 1 are "Heating and/or Air Conditioning Fan," and "Heating and Air Conditioning System."

You asked about illumination requirements in section 5.3 of FMVSS No. 101 that might apply: Again, this section is intended to regulate the controls and displays operable by and visible to the driver, not the controls located in the rear seating area.

In requiring properly located and effectively identified controls and displays under FMVSS No. 101, the agency sought to reduce the safety hazards caused by the diversion of the driver's attention from the road. Locating secondary controls for passengers in the rear seating area for the heating and ventilation system would not distract the driver from the operation of the motor vehicle. The identification and illumination requirements of sections 5.2 and 5.3 were intended to apply only to the controls operable by and visible to the driver.

You should be aware, however, that section 5.3.3 of FMVSS No. 101 provides that "the intensity of any illumination that is provided in the passenger compartment when and only when the headlights are activated shall also be variable in a manner that complies with this paragraph." This section applies to all illumination in the passenger compartment that is dependent on activation of the headlights regardless of whether it shines upon a control display, to enable drivers to reduce the glare in the passenger compartment. Items such as radios and clocks which are not regulated by the location and identification requirements of FMVSS No. 101 are subject to the variable intensity requirements of section 5.3.3 if illuminated when, and only when, the headlights are activated. If the controls located in the rear seating area that operate the heating and ventilation unit are illuminated in this way, the standard requires that the light intensity for such controls must be continuously variable as described in section 5.3.3. You should further note that where you provide a control for the illumination intensity, section 5.1 of FMVSS No. 101 requires that it be operable by the driver, and its identificatian visible to the driver. We interpret this section to require at least one such control to be operable by and its identification visible to the driver. If a manufacturer separately meets the requirement of S5.1 by a properly located and identified control, additional controls that are added voluntarily by the manufacturer are not prohibited.

You indicated in your letter that Mazda is considering placing secondary controls for the audio system in the rear seating area. Controls and displays for audio systems are not regulated by FMVSS No. 101. The location and identification of these controls and displays are left to the discretion of the manufacturer. Once again, however, if the controls are illuminated when, and only when, the headlights are activated, then the same analysis discussed above applies. At least one control for the illumination intensity must be operable by the driver, with its identification visible to the driver.

In conclusion, FMVSS No. 101 does not prohibit placing the secondary controls for the heating and ventilation unit and audio system in the rear seating area. We would like to point out that there are other safety standards which may apply to your proposal that you should consider when you design these features for your automobiles, such as FMVSS No. 201, Occupant Protection in Interior Impact.

Sincerely,

Frank Berndt Chief Counsel

January 20, 1984

Mr. Frank Berndt Chief Counsel National Highway Traffic Safety Administration 400 Seventh Street, S.W. Washington, D.C. 20590

RE: Interpretation of FMVSS 101-80 - Controls and Displays

Dear Mr. Berndt:

Mazda, as well as many other manufacturers, offers a wide variety of vehicles in terms of available equipment. At the extreme end of this spectrum, Mazda endeavors to provide as many comfort and luxury features as possible for both the driver and passengers. One such feature currently under consideration is a secondary, redundant control placed in the rear seat area facilitating operation of the heating/ventilation and audio system functions by rear seat passengers.

Section 5.2.1 of FMVSS 101, however, states that, "The identification shall be placed on or adjacent to the control. The identification shall. . . be visible to the driver. . ." Mazda is concerned that this may preclude the introduction of secondary, redundant controls for rear seat passengers. Please comment on this issue. Also, please comment on any illumination requirements that might apply to this feature from Section 5.3 of the same standard.

Thank you.

Sincerely,

H. Nakaya Branch Manager HN/ab

ID: GF002300

Mr. Paul Pridemore
Production Manager
Cronkhite Industries, Inc.
2212 Kickapoo Drive
P.O. Box 877
Danville, IL 61834-0877

Dear Mr. Pridmore:

This responds to your letter of March 14 and phone conversations with George Feygin of my staff, regarding your Model 7000 trailer. You asked us whether your trailer qualifies as a "special purpose vehicle" under Federal Motor Vehicle Safety Standard (FMVSS) No. 224, Rear Impact Protection. You also asked whether a "tilting rear guard," photographs of which you have enclosed, would satisfy the requirements of FMVSS No. 224, as well as FMVSS No. 223, Rear Impact Guards. I apologize for the delay in responding. The issues raised by your letter and phone conversations are addressed below.

By way of background, the National Highway Traffic Safety Administration (NHTSA) administers Federal requirements for the manufacture and sale of new motor vehicles and certain items of motor vehicle equipment. NHTSA issues FMVSS applicable to new vehicles and equipment. Chapter 301 of Title 49 of the United States Code, "Motor Vehicle Safety" (49 U.S.C. 30101 et seq.), establishes a certification process under which each manufacturer is responsible for certifying that its products meet all applicable FMVSS.

In an attempt to reduce the frequency and severity of underride collisions, NHTSA issued FMVSS No. 224 (61 FR 2004, January 24, 1996). The standard requires that all new trailers and semitrailers with a gross vehicle weight rating of 10,000 lbs or more be equipped with an underride guard that meets the requirements of FMVSS No. 223. The standard currently excludes pole trailers, pulpwood trailers, wheels-back trailers, and "special purpose vehicles" because attachment of an underride guard to these specific vehicles is impracticable or unnecessary.

A "Special Purpose Vehicle" is defined in S4 of FMVSS No. 224 as a trailer or a semitrailer having work-performing equipment that, while the vehicle is in transit, resides in, or moves through the area that could be occupied by the horizontal member of the rear underride guard. Your "tilting rear guard," which acts as an approach ramp when the trailer is tilted down, is the only part of your trailer that, while the vehicle is in transit, resides in the area that could be occupied by a conventional the rear impact guard. Therefore, this "tilting rear guard" would have to be considered work-performing equipment for your tilt bed trailer to be excluded.

Your vehicle does not meet the definition of a special purpose vehicle. There is no definition of "work-performing equipment" in Standard No. 224. However, the Agency has historically interpreted the words "work-performing" to mean that the equipment must actively perform its function, and that the function must involve exerting force or moving something else. Approach ramps do not perform work in this sense because they merely form a ramp between the ground and the vehicle or equipment driving onto the tilt bed. Therefore, a "tilting rear guard" that acts as an approach ramp is not work-performing equipment, and your trailer does not meet the definition of a special purpose vehicle.

In regard to your second question, we note that the static dimensions of your "tilting rear guard" (as described in your letter and accompanying photographs) appear to satisfy the requirements of FMVSS Nos. 223 & 224. Specifically, the guard appears to extend to within 100 mm of the side extremities of the trailer, thus satisfying the width requirement of S5.1.1; the bottom edge of the guard is said to be within 382 mm of the ground, thus satisfying height requirements of S5.1.2; and the guard appears to be on the very edge of the trailer, thus satisfying rear surface requirements of S5.1.3. However, FMVSS No. 223 contains guard strength and energy absorption requirements found in S5.2.1 and S5.2.2 respectively. You have provided no information as to whether the "tilting rear guard" is able to meet the performance requirements of S5.2.1 and S5.2.2. Accordingly, we are not in position to determine whether the "tilting rear guard" is in compliance with FMVSS Nos. 223 & 224.

I hope this information is helpful. If you need further assistance, please contact George Feygin of my staff at this address or at (202) 366-2992.

Sincerely,

Jacqueline Glassman
Chief Counsel

Enclosure
ref:224
d.6/6/03

ID: 24604.ztv

Jeff Barnett, President
Consumer Imports, LLC
Box 56
Allen, TX 75002

Dear Mr. Barnett:

This is in reply to your letter asking for an interpretation of our regulations with respect to a product you wish to import and sell, called "Signalfly."

Signalfly consists of four components: a receiver module unit (RMU), a fused transmitter module unit (Fused TMU), a transmitter infrared unit (TIU), and an A/C charger. The RMU houses the LED light sources of the lamp. It is affixed to a motorcycle helmet through an adhesive material. The Fused TMU is connected to the motorcycles stop lamp wiring. The TIU is mounted on the rear of the motorcycle. The charger is used to recharge the RMU when it is not in use. When the motorcyclist applies the brakes, the RMU affixed to the motorcyclists helmet "flashes approximately 1.5 flashes per second."

The components of Signalfly are defined as "motor vehicle equipment" under our regulations. There are no Federal motor vehicle safety standards (FMVSS) that directly apply to these individual items of motor vehicle equipment. However, when the components operate as a system, they raise issues that impact two Federal motor vehicle safety standards (FMVSS).

The first standard affected is FMVSS No. 218, Motorcycle Helmets, and the second is FMVSS No. 108, Lamps, Reflective Devices, and Associated Equipment.

Specifically, FMVSS No. 218 (S5.5) prohibits a motorcycle helmet from having a rigid projection on the outside of a helmet shell, except for "those required for operation of essential accessories, and shall not protrude more than 0.20 inch (5 mm)." We do not regard Signalfly as an "essential accessory" within the meaning of the phrase. This means that a motorcycle helmet to which Signalfly is attached would not comply with FMVSS No. 218. Although we understand Signalfly is intended to be sold in the aftermarket, I would like to point out that under 49 U.S.C. 30112(a), it is a violation to manufacture for sale, sell, or offer for sale a motorcycle helmet that fails to comply with FMVSS No. 218. This means that a helmet may not be sold with the RMU attached to the helmet, or as part of the sale of a new helmet. A helmet owner who buys Signalfly and attaches the RMU would not be in violation of Federal regulations but, in our view, would be deprived of the head protection that FMVSS No. 218 seeks to assure. Whether it is legal for a person to operate a motorcycle while wearing a helmet with the RMU attached is not a Federal question, but a question to be answered under the laws of each jurisdiction in which Signalfly is used. We also raise the possibility that the RMU may cover or obstruct the DOT symbol that constitutes the manufacturers certification that the helmet complies with FMVSS No. 218. I might add that we are also concerned that the adhesive attachment to the helmet might cause a chemical reaction to the shell and reduce the dynamic impact performance of the helmet (see S5.6.1(f)(2)). It is this agencys policy to discourage motorcycle helmet users from modifying their helmets.

In relation to the FMVSS including FMVSS No. 108, we also administer a law that forbids manufacturers, dealers, distributors, or motor vehicle repair businesses from making "inoperative" any original equipment on a vehicle that is installed in accordance with a Federal safety standard, such as a stop lamp on a motorcycle. Because of the potential of an additional, flashing, stop lamp to cause confusion with the required steady-burning stop lamp, it is our opinion that the installation and use of the Signalfly would make the required stop lamp partially "inoperative" within the meaning of the prohibition. However, the prohibition would not apply if the motorcycle's owner installed the Signalfly. Whether it is legal to use the device on public roads depends upon the law of the state where the Signalfly is operated. We are not able to advise you about the applicability of State law.

Sincerely,

Jacqueline Glassman
Chief Counsel

ref:108
d.12/6/02

ID: 00563Vancamp_positioningbelt

Sgt. Sharron VanCampen
Commander, School Bus Inspection Unit
Michigan State Police, Motor Carrier Division
4000 Collins Road
Lansing, MI 48909

Dear Sgt. VanCampen:

This responds to your e-mail to the National Highway Traffic Safety Administration (NHTSA) and telephone call to Deirdre Fujita of my staff, concerning the application of Federal motor vehicle safety standards^[1] to the installation of "positioning belts" on large (over 10,000 pounds gross vehicle weight rating) school buses. We apologize for the delay in responding.

You state that positioning belts are seat belts certified as meeting Federal Motor Vehicle Safety Standard No. 209 that are sold for use on a school bus seat to transport children with special needs that require additional restraint to ensure that the children remain seated. According to your e-mail, some school bus operators are attaching the belts by looping them around school bus seat structures that were not manufactured for seat belt installation.

You ask several questions about the positioning devices, which are answered below. I note that we have also received a related letter from Mr. Howard Dashney, Executive Director of the Michigan Association for Pupil Transportation (MAPT), asking about MAPTs members use of the positioning devices on school buses. Because your inquiries ask about the same situation, we will respond to you both simultaneously and will copy you both on our responses.

Your questions are answered below.

Question: "These devices are being marketed for pelvic restraint and as such, are they required to meet all of the requirements in FMVSS No. 209? If these devices are considered lap belts per FMVSS No. 209, are they required to meet the attachment hardware requirement at S5.2(c) and thus use a bolt to attach to the seat belt loading bar on a seat belt-ready school bus seat?"

Answer: According to available information, the belts are in fact certified as meeting the requirements of FMVSS No. 209. Presumably, because they are certified as meeting that standard, the belts were sold with the attachment hardware required by FMVSS No. 209. It appears that your underlying question is whether the belts are required by FMVSS No. 209 to be attached in a specific way, including by use of a bolt, etc. As explained below, generally the answer is no.

The installation of the belts on used vehicles is not directly regulated by an FMVSS. Safety standards that apply to installation of seat belts, FMVSS No. 208, Occupant Crash Protection, and FMVSS No. 210, Seat Belt Assembly Anchorages, are "vehicle standards" applying only to new vehicles. The general rule is that installation of aftermarket equipment is not subject to the requirements set forth in vehicle standards.

However, there is another statutory provision that might affect MAPT members installation of the belts. If a vehicle is modified after its first sale, 49 U.S.C. 30122 provides, 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.

School buses are certified as meeting Federal school bus safety standards. Seats on a large school bus are certified to the "compartmentalization" requirements of FMVSS No. 222, School Bus Passenger Seating and Crash Protection. The compartmentalization concept calls for sturdy yet yielding well-padded high-backed seats to protect passengers. With respect to Standard No. 222, the compartmentalized school bus seats are elements of design installed in compliance with this safety standard. The "make inoperative" prohibition requires any entity listed in 30122 to ensure that the school buses will continue to afford the occupant protection required by Standard No. 222, even with the positioning belts attached to them.

Note, however, that the make inoperative prohibition does not apply to modifications vehicle owners make to their own vehicles. Thus, Federal law would not apply to a situation where MAPT members installed the belts in their own vehicles, even if the installation were to result in the vehicle no longer complying with the safety standards. Nonetheless, NHTSA urges owners to exercise care in modifying their vehicles so as not to degrade the safety provided by the original systems. Further, States have the authority to regulate the use of motor vehicles, including the manner in which school buses are modified and operated.

Question: "If this is correct [and the answer to question number 2 is yes], is it appropriate for Michigan to require that seat belt anchorages in school buses over 10,000 gross vehicle weight meet the strength requirements found in FMVSS No. 210?"

Answer: The answer to the preceding question is that seat belts are not required by our standards to be installed on used vehicles pursuant to the lap belt installation instructions accompanying the belts. However, because the FMVSSs do not specify requirements for seat belts for passengers on large school buses, each State has the authority to specify requirements for the installation of the belts. The belts act similarly to lap belts in a crash. NHTSA recommends that lap belts should be installed only on "seat belt ready" school bus seats (seats that are able to withstand the forces generated in a crash), and also in a manner that meets FMVSS No. 210.

If you have further questions, please feel free to contact Ms. Fujita at (202) 366-2992.

Sincerely,

Jacqueline Glassman
Chief Counsel

ref:VSA#209#213





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[1] As explained by Ms. Fujita, we can only interpret our requirements and cannot interpret the requirements of other Federal agencies. As to compliance with Head Start or other Federal regulations, you should direct your question to the agency involved.

ID: aiam3355

Dear Mr. Gephart: This responds to your letter of August 14, 1980, regarding speedomete requirements on buses. In your letter, you ask us to confirm your belief that buses purchased prior to September 1, 1979, are not required to have speedometers. The key question is the date of manufacture, not the date of purchase. Federal Motor Vehicle Safety Standard (FMVSS) No.127, *Speedometers and Odometers*, requires motor vehicles *manufactured* on or after September 1,1979, to have speedometers that meet certain criteria. Thus, none of your buses that were manufactured before that date are required to have speedometers. To determine the date of manufacture of any of your buses, check the certification label.; We noted your statement that the Phoenix Transit System serves 'onl the Phoenix and surrounding suburbs' passenger population with limited boundaries.' If you begin to offer interstate service, we recommend that you contact the Federal Highway Administration (FHWA), Bureau of Motor Carrier Safety, regarding the regulation of interstate motor carriers. The FHWA may have rules requiring speedometers on all vehicles used in the interstate transportation of passengers. Their address is 400 - 7th St. S.W., Washington, D.C., 20590.; We hope you find this information helpful. Please contact this offic if you have any questions.; Sincerely, Frank Berndt, Chief Counsel

ID: aiam4300

Dear Mr. Krieger: This responds to your letter of November 4, 1986, in which yo requested that this agency amend Federal motor vehicle safety standard (FMVSS) 118, *Power Operated Window Systems*.; In your letter, you mentioned an electronic touchpad, known as th DOORMAN keyless entry system, and stated that it is designed to be used by someone outside a vehicle to operate your power sunroof. You requested that this agency amend paragraph S3(c) of the standard, which currently permits the operation of power windows and vehicle exterior, to permit the operation of a sunroof by means of an electronic touchpad system.; There is no need to amend Standard 118 to permit the use of you touchpad since the reference in Standard 118 to power-operated window and partition systems does not include sunroofs. Windows include the typical power windows on the sides of many vehicles and to the power tailgate windows on station wagons. Partitions refer to movable surfaces, such as those found inside some taxicabs and limousines, which separate different portions of the vehicle interior from one another.; Since there is no need to amend Standard 118, we are treating you letter as a request for interpretation and trust that it is fully answered by this response.; Sincerely, Erika Z. Jones, Chief Counsel

ID: 1983-3.12

TYPE: INTERPRETATION-NHTSA

DATE: 10/20/83

FROM: AUTHOR UNAVAILABLE; F. Berndt; NHTSA

TO: BMW of North America, Inc.

TITLE: FMVSS INTERPRETATON

TEXT:

NOA-30

Mr. Karl-Heinz Ziwica, Manager Safety & Emission Control Engineering BMW of North America, Inc. Montvale, New Jersey 07645

Dear Mr. Ziwica:

This is in reply to your letter of August 4, 1983, to Mr. Vinson of this office asking for a reconsideration of our December 8, 19B2, letter in which we stated that Motor Vehicle Safety Standard No. 108 prohibits the use of glass or plastic shields in front of motorcycle headlamps. You have pointed out that this appears to reverse a previous interpretation issued by this office on March 15, 1978, in which we concluded that such covers were not precluded.

As is well known, SAE Standard J580 Sealed Beam Headlamp Assembly precludes the use of covers in front of headlamps in use. Because Standard No. 108 allows installation on motorcycles of half of a passenger car sealed beam headlighting system (principally because SAE J584 allows use of headlamps meeting SAE J579 Sealed Beam Headlamp Units), the 1982 interpretation applied the prohibition against covers to all sealed beam headlamps, even those used on motorcycles. With respect to unsealed lamps, the agency cited paragraph S4.1.3, the prohibition against installation of additional equipment impairing the effectiveness of required lighting equipment, and concluded that the possibility of deterioration of light output through cracked or discolored covers precluded covers over nonsealed lamps. On the other hand, the 1978 interpretation concluded that, since the cross referenced J579 did not itself reference J580, the prohibition did not apply.

We have reviewed this matter and have concluded that headlamp covers for motorcycles are not per se prohibited by Standard No. 108. As the 1978 interpretation implies, and as you make explicit, the only standard Table III directly incorporates for motorcycle headlamps is J584, whereas J580 is one of several standards directly incorporated for headlamps on four-wheeled vehicles. Nevertheless, we still conclude that these covers are prohibited if they impair the effectiveness of the headlamp.

If, for example, the angle of the cover is so extreme that headlamp "effectiveness" is "impaired" because of deterioration of the beam, then the manufacturer may wish to remove the shield or redesign it. If, as another example, a plastic cover is intended and a manufacturer has knowledge that it is susceptible to accelerated hazing or cracking, the manufacturer should not use a cover manufactured of this plastic.

In summary, this letter modifies both our 1978 and 1982 opinions by concluding that headlamp covers for motorcycles are permissible if they will not impair the effectiveness of the headlamp.

The agency is reviewing this subject to determine if rulemaking is advisable to prohibit covers of any sort over motorcycle headlamps, similar to the prohibition against such covers on four-wheeled motor vehicles.

Sincerely,

Frank Berndt Chief Counsel

August 4, 1983

Mr. Z. Taylor Vinson, Esq. National Highway Traffic Safety Administration U.S. Department of Transportation 400 Seventh Street SW Washington, DC 20590

RE: Motorcycle Headlamp Cover

Dear Mr. Vinson:

On February 1, 1983, members of the motorcycle industry met with you and NHTSA rulemaking (lighting) and enforcement personnel to discuss NHTSA's new interpretation regarding the installation of transparent covers in front of motorcycle headlamps. This interpretation, contained in a December 8, 1982 letter from Frank Berndt, NHTSA Chief Counsel, stated that NHTSA now views that FMVSS 108 prohibits the use of glass or plastic shields in front of motorcycle headlamps. This reverses a previous interpretation contained in a March 15, 1978 letter from Joseph J. Levin, Jr., then NHTSA Chief Counsel, which stated that NHTSA did not read the prohibition against covers as applying to motorcycles equipped with either sealed or unsealed headlamps because the referenced motorcycle headlamp standard in Table III of FMVSS 108, SAE J584, does not prohibit the installation of such covers.

We disagree with the reversal of the earlier interpretation.

Table III of FMVSS 108 requires motorcycles to comply with SAE Standard J584, April 1964. SAE J584 sets forth photometric requirements for motorcycle headlamps and does not prohibit glass covers. It also provides for alternative compliance by fitting headlamps conforming to SAE 579 (which, incidentally, also does not prohibit such covers). S4.1.1.34 provides that a motorcycle may be equipped with various combinations of headlamps from the passenger car headlamp systems, and contains no prohibition of headlamp covers. The only prohibition against the use of headlamp covers in FMVSS 108 is contained in SAE Standard J580a/b, referenced in Table III and applies only to sealed beam headlamps installed in passenger cars, multi-purpose passenger vehicles, trucks and buses. SAE J580a and J580b are concerned with the aim of a headlamp's beam, and proscribe glass covers so the aim can be readily inspected using a mechanical aimer that registers on the headlamp's three aiming pads. J584 motorcycle headlamps do not have these aiming pads, so there is no such need to preclude the use of glass covers.

NHTSA to support its position that Standard 108 precludes the use of covers over motorcycle headlamps relies on two arguments. We disagree with both:

1. That the prohibition contained in SAE Standard J580 applies to motorcycles, since SAE J580 is referenced in Table III of FMVSS 108.

SAE J580 does not apply to motorcycles. It is referenced in Table III of FMVSS 108 only for passenger cars, multipurpose passenger vehicles, trucks and buses. The primary referenced requirement for motorcycles in FMVSS 108 is SAE J584, which contains no such prohibition. SAE J584, in turn, permits alternative compliance with SAE J579, which neither contains such a prohibition nor references J580. In addition, S4.1.1.34 contains additional means of compliance for motorcycles, but no such prohibition.

2. That the "impairs the effectiveness" clause of S4.1.3 of FMVSS 108 precludes the use of such covers because the covers "impair the effectiveness" of headlamps.

This is an improper interpretation of S4.1.3. The impaired effectiveness requirement was intended to preclude the use of devices that render the required devices (although themselves meeting the standard) ineffective. For example, the fitting of a red lamp to a vehicle immediately adjacent to the required amber front side marker lamp and likewise an amber lamp fitted adjacent to the required rear red side marker lamp would impair the effectiveness of the required lamps, as ambiguity would result. Such an impairment would also result from the placement of an extremely bright lamp adjacent to a signal lamp, thus obliterating the light output of the signal lamp. Impairment of effectiveness does not relate to durability requirements as NHTSA would suggest.

In those instances where durability of lamps, lens materials, and other equipment is deemed to be important, FMVSS 108 contains specific durability requirments applicable to such equipment. As long as the headlamp cover does not preclude the headlamp from conforming to the performance requirements specified in FMVSS 108 at the time of sale of the motorcycle, the cover does not "impair the effectiveness" of the required equipment.

The interpretation of December 8 refers to the "impairs the effectiveness" clause of FMVSS 108, S4.1.3, as if impairing were an absolute, regardless of whether an impaired lamp were still within specifications. Compliance with specifications, however, is implicit to S4.1.3 because only lamps complying with specifications are required by this standard. S4.3.1.1. clearly relates compliance of any lamp to meeting or not meeting photometric output.

In addition, the preamble to the January 17, 1983 notice of proposed rulemaking to amend FMVSS 108 (Docket 81-11: Notice 2) discusses the very subject of permissible impairment and concludes that compliance with required photometrics is the only test that can be applied. In rejecting petitioner's argument that conformance of a lamp should be based on relative degradation from the original output, NHTSA states (48 FR 1994), "....a lamp that far exceeded the minimum could "fail" if diminution exceeded 10 percent, even though the safety based J579c minima were still met. Such a result would appear to be excessive as a minimum safety standard. ...NHTSA believes it simpler and preferable that photometric measurements be taken at the end of each of the relevant tests in the sequential test series, and that the lamp at each such point comply with the photometrics of J579c". Thus, this preamble recognizes that photometric standards are composed of minimums and maximums, and that there would be no difference between a lamp designed to lower output and one that deteriorated to that same level, as long as both lamps at the reduced level of output comply with specifications.

That compliance is the sole criterion is further underscored in the letter of interpretation from Frank Berndt, then NHTSA Acting Chief Counsel, to Roderick A. Willcox, July 23, 1976, in which it is stated, in reference to a bug screen placed in front of headlamps, "Since the screen is positioned in front of the headlamps it would be an "other feature" of the type intended to be prohibited by the standard if, as appears likely, it affects compliance with headlamp photometrics (SAE Standard J579 or headlamp aim (SAE Standard J580)."

One of the issues raised at the meeting was whether the BMW headlamp/cover complied with the photometric requirments of FMVSS 108. We indicated to you that we would have such a unit tested at an independent laboratory and submit the results to NHTSA. Electrical Testing Laboratories (ETL) has just completed the environmental and photometric tests prescribed by FMVSS 108 on one of our headlamps, and we attach a copy of their report. The report shows that the headlamp with glass cover passed the photometric tests of SAE J584, April 1964, both before and after the required environmental tests.

BMW uses the J584 motorcycle headlamp because, as recognized by NHTSA in 44 FR 20536, its photometrics are superior for motorcycles. The glass cover is designed as an integral part of the lamp and provides improved aerodynamics, which result in self-cleansing action; the cover also protects the headlamp from impacts and prevents the leadlamp's exposure to rain and dirt. Heat from the headlamp, which is on all the time, is sufficient to prevent buildup of moisture on the cover, while the cover, because of its distance in front of the lamp, minimizes the baking on of dirt and bugs. Generally, we find that most motorcycle owners maintain their vehicles better than do passenger car owners, and tend not to ride them as much in inclement weather.

Also enclosed is a copy of an ETL report showing that the glass cover complies with the light stability, luminous transmittance, impact, fracture and abrasion resistance tests of Z26.1. In the past, both AAMVA and California Highway Patrol have issued certificates of approval on the cover glass, as well as the whole lamp (including the cover glass).

We are not aware of any field experience indicating any problems with discoloration or cracks in the cover glass, or deterioration of the reflector.

Also, as we agreed in our meeting, we are attaching the names and addresses of owners in the Washington, D.C. area of older BMW motorcycles fitted with such covers whom you may wish to contact. This information is being provided to enable you to examine the headlamp/cover assemblies of these older motorcycles to determine what, if any, deterioration in headlamp performance can be attributed to age. This would aid you in the formulation of future proposed rulemaking should you later decide some durability require-ment may be appropriate for such lamp/cover assemblies.

Aside from a perceived (but not demonstrated) durability concern on NHTSA's part with respect to headlamp covers generally, the primary reason repeatedly given by NHTSA in opposition to such covers is their effect on mechanical aimers. Obviously, with a motorcycle there is no such concern since motorcycle headlamps can not be mechanically aimed because mechanical aiming requires the use of two headlamps, while motorcycles are permitted to have only one headlamp. This is the reason a motorcycle headlamp is not required to have the three aiming pads mounted on the lens.

In conclusion, we believe the interpretation contained in the December 8, 1982 Berndt letter is in error, particularly as it would apply to motorcycles equipped with headlamps conforming to SAE J584, as specified by Table III in FMVSS 108. Very truly yours,

Karl-Heinz Ziwica, Manager Safety & Emission Control Engineering

DE/fw 0510 - 83 Attachments

Owners of older BMW motorcycles having cover glass in front of headlamp who are willing to have their headlamps examined:

David Gray 1977 BMW RS 305 Tapawingo Road Vienna, VA 22180 Telephone: 703 938-0060

Robert Henig 1977 BMW RS 11800 Dewey Road 35,000 miles Wheaton, MD 20906 Telephone: 301 942-5198

George R. Sams 1979 BMW RT 1104 Tyler Avenue 21,000 miles Annapolis, MD 21403 Telephone: 301 267-3487 Bus.

301 263-9473 Home

ID: Hyodo.B-3

Mr. Kiminori Hyodo
Deputy General Manager, Regulations & Certification
Koito Manufacturing Co., Ltd.
4-8-3, Takanawa
Minato-ku Tokyo
Japan




Dear Mr. Hyodo:

This responds to your letter, in which you sought clarification under Federal Motor Vehicle Safety Standard (FMVSS) No. 108, Lamps, Reflective Devices, and Associated Equipment, as to the location of the axis of reference for a headlamp that incorporates a bending light function. Specifically, you asked about the location of the axis of reference for a bending light mechanism where a portion of the nominal beam pattern is actively redirected to provide illumination in a turn. The issues raised by your letter are addressed below.

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. FMVSS No. 108 sets forth the requirements for both original equipment and aftermarket lamps, reflective devices, and associated equipment for use on motor vehicles covered under the standard. NHTSA does not provide approval of motor vehicles or motor vehicle equipment. Instead, it is the responsibility of manufacturers to self-certify that their products conform to all applicable safety standards that are in effect on the date of manufacture (see 49 U.S.C. 30115 and 49 CFR Part 567, Certification).

Regarding the requirements for a headlamp with a bending light function, this topic was addressed in a Request for Comments published in the Federal Register on February 12, 200. (see 68 FR 7101). In that document, we explained that under FMVSS No. 108, "the bending light performance (by automatically reaiming the lamp) is not prohibited because the Standard does not specifically address the initial or subsequent aim of a headlamp in a headlighting system.. 68 FR at 7102. We noted that in a July 21, 1999 interpretation letter to Mr. Mark Cronmiller, VDO North America, we stated that if a "smart" headlamp system meets the static aiming hardware requirements of FMVSS No. 108, a dynamic aiming feature is permissible.

After discussing our July 1999 interpretation, we included the following paragraph in our document in the Federal Register:

We note that S5.3.1.1 of Standard No. 108 also requires that lamps and reflective devices must be installed such that their photometric requirements are met on motor vehicles and that no other part of the vehicle shall prevent that. As such, the additional hardware added to achieve AFS must not prevent headlamps, or any other required lamps, from meeting the required performance in any manner whether AFS is operating or not. Additionally, for the bending light mechanization where some of the light in the nominal beam pattern is actively redirected, the photometric requirements of the headlamp must be met regardless of active changes in the light distribution within the beam. 68 FR at 7102.

In your letter, you asked about the last sentence of the foregoing paragraph. You stated that for bending light mechanization where some of the light in the nominal beam pattern is actively redirected, "NHTSA clarified its legality that the photometric requirements must be met regardless of the active changes in the light distribution within the beam pattern . . . but did not address the location of the axis of reference for the determination of photometric compliance.. You stated that for this type of system, when the optical axis (kink) of the lower beam headlamp moves due to the swivel of an adaptive beam contributor that is utilized with a non-swiveling base beam, you must compensate the goniometer to locate the axis of reference to H = 0 degree / V = 0 degree for that determination.

Your letter stated further:

We construe that the goniometer must be compensated because the docket explicitly allows the swiveling of the beam pattern and further requires compliance to the FMVSS 108 lower beam photometric requirement in all the situations throughout the activation of the bending light function. In light of these requirements, in a system where some of the light in the nominal beam pattern is actively redirected and the optical axis (kink) moves due to the changes in the vehicles steering angles, photometry should be done in the direction where the optical axis (kink) of the headlamp is actually directed. This results in exactly the same situation as required for the category 1 bending light mechanization (i.e. swiveling of the whole beam pattern) where a lower beam headlamp meeting the photometric requirements of FMVSS 108 is allowed to be directed toward the direction of the vehicles steering. Also, the direction coincides with the drivers gaze direction when negotiating curves, which is consecutive to the original purpose of the bending light function and significant for the improvement of safety.

As part of reviewing your letter, we analyzed the paragraph in our February 2003 notice that you asked about. We note that the paragraph construed the language of S5.3.1.1 of FMVSS No. 108 as it existed at that time. Subsequently, we amended that portion of the standar. (see 69 FR 48805, 48813 (August 11, 2004)). The standard no longer includes the former language of S5.3.1.1 that "no part of the vehicle" shall prevent lamps from meeting photometric requirements. Instead, the standard now states at S5.3.2(a) that lamps and reflective devices must be installed in a location where they comply with all applicable photometric requirements and visibility requirements with all "obstructions" on the vehicle.

We note that in making this change, the agency explained that it was clarifying the sentence and moving it, without making any substantive changes. Thus, in the August 2004 notice, the agency viewed the superseded S5.3.1.1 requirement that no part of the vehicle prevent lamps from meeting photometric requirements as referring to obstructions, a more narrow view than it took in the February 2003 notice. In retrospect, and after reviewing the relevant language and comparing how the agency viewed it in the February 2003 and August 2004 notices, we believe the more narrow reading was correct.

In any event, the language of S5.3.1.1 construed in the paragraph you asked about is no longer in FMVSS No. 108. That paragraph is not a correct explanation of the standards requirements today and should be disregarded.

As to what is required for the design you asked about, and similar to the situation where the entire headlamp is reaimed, the standards photometry requirements must be met in the nominal position of the lower beam headlamp (i.e., considering the location of the axis of reference to coincide with the longitudinal axis of the vehicle).

As defined under S4 of FMVSS No. 108, "axis of reference" means "the characteristic axis of the lamp for use as the direction of reference (H=0, V=0) for angles of field for photometric measurements and for installing the lamp on the vehicle.. In the case of a visually/optically aimable headlamp, for example, the agency would orient the axis of reference through the headlamp optical axis marks. These marks are required by S7.8.5.3(f)(1) to establish the horizontal and vertical alignment of the headlamp, aiming screen, and goniometer, relative to the longitudinal axis of the vehicle. Furthermore, SAE J575 DEC88, as incorporated by reference into FMVSS No. 108, specifies that the vertical axis of the test sample be vertical and perpendicular to the longitudinal axis of the vehicle when mounted on the goniometer, and that the intersection of the H and V planes (a.k.a. axis of reference) be parallel to the longitudinal axis of the vehicle. Once the nominal aim was established, photometry testing would be conducted. FMVSS No. 108 does not require that photometric requirements be met for other axes of reference.

We note that the photometry requirements of FMVSS No. 108 are intended both to ensure adequate illumination of the roadway and overhead signs and to avoid unnecessary glare to other drivers. While, as discussed above, the standard does not include photometric test requirements for a headlamp with a bending light function other than for the nominal position of the lower beam headlamp, we encourage manufacturers to carefully consider accommodating both of these goals as they design headlamp systems incorporating this new technology.

I hope this information is helpful. If you have further questions, please feel free to contact Eric Stas of my staff at this address or by telephone at (202) 366-2992.

Sincerely,

Stephen P. Wood
Acting Chief Counsel

ref:108
d.2/10/06