ID: HARMER.ZTV

John L. Harmer, Esq.
P.O. Box 721
Bountiful, Utah 84011

FAX 801-299-0523

Dear Mr. Harmer:

This is in reply to your letter of June 4, 1996, asking the following question:

"Whether or not certification of an automobile for sale in Puerto Rico as being in compliance with Federal safety standards would allow that automobile to be imported into the fifty states insofar as compliance with applicable Federal motor vehicle safety standards is concerned?"

The answer is yes, as you have represented to Daewoo.

49 U.S.C. 30112(a) prohibits the importation into the "United States" of a motor vehicle manufactured on or after the date an applicable Federal motor vehicle safety standard takes effect unless the vehicle complies with the standard and is covered by the manufacturer's certification of compliance with the standard. Although the term "United States" is not defined, we view it as comprising all States, and "State" is a defined term. Under 49 U.S.C. 30102(a)(10), a "State" means "a State of the United States, the District of Columbia, Puerto Rico, the Northern Mariana Islands, Guam, American Samoa, and the Virgin Islands." This means that a motor vehicle that Daewoo manufactures to conform, and that it certifies as conforming, with all applicable Federal motor vehicle safety standards, may be freely imported into Puerto Rico or into any other "State" as defined above as in compliance with DOT safety regulations.

I hope that this is responsive to your request. If you have further questions, you may refer them to Taylor Vinson of this Office (202-366-5263).

Sincerely,

Samuel J. Dubbin Chief Counsel ref:591 d:6/6/96

ID: 86-6.4

TYPE: INTERPRETATION-NHTSA

DATE: 12/04/86

FROM: AUTHOR UNAVAILABLE; Stephen P. Wood for Erika Z. Jones; NHTSA

TO: Mr. Glenn Groth

TITLE: FMVSS INTERPRETATION

TEXT:

Mr. Glenn Groth 3355 Mission Ave. Ste 211 Oceanside, CA 92054

Dear Mr. Groth:

This is in reply to your letter of July 21, 1986, to Dr. Carl Clark of this agency. You have developed a "brake light enhancer," a device which flashes the stop lamps three times before they become steady-burning. The sample you provided us is packaged to describe the device as "the ultimate in rear end collision prevention," and bears a label "This product is for off road use". The device is specifically permitted under Section 25251.5(c) of the California Vehicle Code. Your letter states that several vehicle manufacturers have shown interest in the device, but wish to see "DOT approval." You anticipate that the device might eventually be "a mandatory device like the third brake light now." You have asked Dr. Clark "What are our next steps to getting the approval of the D.O.T. for this device?"

The Department has no authority to approve or disapprove specific designs or items of motor vehicle equipment. Under the National Traffic and Motor Vehicle Safety Act, we establish the Federal motor vehicle safety standards to be met by manufacturers of motor vehicles and motor vehicle equipment. The standards apply from manufacture through first sale of the vehicle; after the first sale, as a general rule, modifications may not be performed to a vehicle that take it out of compliance with a standard. However, this prohibition does not extend to modifications performed by the owner himself. The Act establishes a self-certification scheme under which manufacturers certify that their products conform to all applicable Federal motor vehicle safety standards, without the necessity of prior "approval" by the Department. The Act also requires national uniformity of Federal and state safety standards in that once a Federal standard has been established, a State standard covering the same aspect of performance must be identical to it.

Federal Motor Vehicle Safety Standard No. 108 Lamps, Reflective Devices, and Associated Equipment is the Federal standard on motor vehicle lighting. Because the Federal requirement does not allow a stoplamp to flash three times before becoming steady burning, a motor vehicle may not be manufactured with the brake lamp enhancer installed. Further, if a manufacturer, distributor, dealer, or motor vehicle repair business installs a brake light enhancer, that person could be viewed as having rendered the stoplamps partially ineffective, and therefore as having violated the Act. Because the advertised purpose of this device is to prevent rear end collisions for on road vehicles, the label "This product is for off road use" will not serve to protect any person from liability under the Act.

In summary, your device is permissible under the Act only if it is designed to be installed by a vehicle owner, and so advertised. The fact that it may be legal under California law will not protect a driver from citation for operation of the system in any State where it may not be permitted by local law. You have the right to petition the Department for an amendment to Standard No. 108 to permit or require your device, but at present we are satisfied that the new center high mounted stop lamp sufficiently addresses the identical safety need covered by your system. Because the safety standards are performance oriented rather than design oriented, the agency's regulations are not intended to specify devices or systems of a proprietary nature.

I enclose a copy of our petition regulations for your information. If you file a petition with us, it should contain data substantiating the safety need and demonstrated performance of your device, rather than simple allegations that it prevents rear end collisions. We are returning the sample of your device herewith.

Sincerely,

Erika Z. Jones Chief Counsel

July 21, 1986

Dr. Carl C. Clark Inventor Contact Code NRD-12 National Highway Traffic Safety Administration Washington, D.C. 20590

Re: Brake Light Enhancer

Dear Dr. Clark:

Thank you for the time you shared with me on the telephone last Friday, July 18, 1986. I appreciate all the information and help you provided.

At your suggestion, I'm enclosing the following items for your review: (1) A copy o; the patent for the Brake Light Enhancer; (2) A copy of the amendment to the California State Vehicle Code permitting the use of the device on vehicles in California to flash the stop lamps three 3 times before coming on steady; (3) A brochure which briefly describes the product; and (4) A sample of the device for your inspection and testing.

As I mentioned to you over the phone we have several auto manufacturers interested in the device, but before they will commit themselves to using it they would like to see more approvals or endorsements for the product, such as by the D.O.T. We anticipate that if and when the device is approved by the D.O.T., it would initially be offered as an option and later as a mandatory device like the third brake light now.

What are our next steps to getting the approval of the D.O.T. for this device?

Thank you again for all your help. I've enclosed a stamped, self-addressed envelope for your convenience.

Sincerely,

Glenn Groth

ID: 86-6.5

TYPE: INTERPRETATION-NHTSA

DATE: 12/05/86

FROM: AUTHOR UNAVAILABLE; Erika Z. Jones; NHTSA

TO: no addressee

TITLE: FMVSS INTERPRETATION

TEXT:

This is in reply to your letter of September 12, 1986, to the National Highway Traffic Safety Administration, and your letter to me of november 13, asking for our comments on four new motor vehicle lighting devices.

The first device performs a combination of two functions. It consists of three lamps serving as identification lamps and will meet all requirements of Standard No. 108 for such equipment. The three lamp cluster will also serve a auxiliary stop lamps (mistakenly referred to as a turn lamp in the November letter). The second device is a clearance lamp meeting requirements of Standard No. 108, which would also serve as an auxiliary stop lamp (also mistakenly referred to a a turn lamp in the November letter). The third device is described as a "tracking lamp" ( the diagram shows this to be the rear side marker lamp required by Standard No. 108) meeting all requirements for such; it will also serve as an auxiliary side turn signal indicator. The fourth device will serve as an intermediate side marker lamp, complying with Standard No. 108's requirements, but will also serve as an auxiliary side turn signal lamp. The devices are intended for use on wide trucks and trailers. In your opinion, the auxiliary functions will not "confuse or inhibit" the functioning of lighting equipment required by Standards No. 108.

With respect to the combination of lamp functions or truck and trailers, Standard No. 108, specifically paragraph S4.4, prohibits only the optical combination of clearance lamps with taillamps or identification lamps. These combinations do not exist in any of your four proposed designs. Under paragraph S4.1.3 supplemental lighting devices are permitted as long as they do not impair the effectiveness of lighting equipment required by Standard No. 108. You have concluded that there would be no impairment. Under the facts as presented in your letter, we have no reason to disagree with that conclusion.

We have noted your request that your letters be accorded confidential treatment because of proprietary commercial information, and your attorney's consent on your behalf that our interpretation may be made public provided that all information identifying you as the writer is deleted. We shall follow this procedure.

Sincerely,

Erika Z. Jones Chief Counsel

ID: 86-6.6

TYPE: INTERPRETATION-NHTSA

DATE: 12/05/86

FROM: AUTHOR UNAVAILABLE; Stephen P. Wood for Erika Z. Jones; NHTSA

TO: Mr. Kunst

TITLE: FMVSS INTERPRETATION

TEXT:

Mr. Kunst Deutsche Tecalemit Deutsche Tecalemit GmbH P.O.B. 120128 D-4800 Bielefeld 12

Dear Mr. Kunst:

This letter responds to your request for an interpretation of Federal Motor Vehicle Safety Standard No. 106, Brake Hoses. We apologize for the delay in responding to your inquiry. You enclosed drawings of a brake hose end fitting and a vacuum brake hose assembly you manufacture, and asked whether the assembly would conform to the constriction requirements of S9.2.1. In our opinion, the answer is no.

Your letter did not clearly state the size of the inside diameter of the hose used in assembly 90 28B 758. That dimension is necessary in order to ascertain whether constriction requirements are met. We believe, however, based on the markings at the bottom your diagram -i.e., "TUBE 12.5x2.0 DIN 73 37B" - that the brake hose has an outside diameter of 12.5 mm, and a wall thickness of 2.0 mm. The hose would therefore have a nominal inside diameter of 8.5 mm. (If our assumptions are incorrect, please do not hesitate to contact us.) *

Paragraph S9.2.1 of Standard No. 106 states:

Except for that part of an end fitting which does not contain hose, every inside diameter of any section of a vacuum brake hose assembly shall be not less than 75 percent of the nominal inside diameter of the hose if for heavy duty, or 70 percent of the nominal inside diameter of the hose if for light duty.

To pass the constriction test of S9.2.1, a vacuum brake hose assembly (heavy duty) must have an inside diameter that is at least 75 percent of the nominal inside diameter of the brake hose. This, if the nominal inside diameter of the hose is 8.5 mm, the inside diameter of the assembly must be not less than 6.38 mm at any point. If the assembly is intended for light duty, under the 70 percent requirement its inside diameter must be not less than 5.95 mm at any point.

You stated that the inside diameter of end fitting 90 279 346 is 4 mm + 0.5 mm. Because of this size, the part of the fitting which is attached to the hose would not meet constriction requirements of S9.2.1 for either light or heavy duty applications.

If you have further questions, please contact my office.

Sincerely,

Erika Z. Jones Chief Counsel

Chief Council NHTSA 400 7th St. S.W. Washington DC 20590 USA

Subj.: Federal Safety Standards MVSS 106 Paragraph S 9.2.1, Constriction -

Dear Sirs,

In the a. m. matter we wrote to the Office of Vehicle Safety Standards, Crash Avoidance Division, Mr. Stanley R. Scheiner. Today we have received the information from Mr. Scheiner that your office is responsible in this case.

Herewith we would like to give you the following information:

In conjunction with a development for General Motors, we urgently require your interpretation of paragraph S 9.2.1, regarding the constriction of the size of any section of a vacuum brake hose assembly.

As you can learn from the enclosed drawing information, the end fitting 90 279 346 with an inside diameter of 4 mm + 0,5 mm tolerance will be used for the brake hose assembly, drwg. no 90 288 758.

Please confirm that this design comply with paragraph S 9.2.1.

We would deeply appreciate your short term reply.

Yours faithfully

DEUTSCHE TECALEMIT GMBH i.v. Kunst

SEE HARD COPY FOR GRAPHIC ILLUSTRATIONS

ID: 86-6.7

TYPE: INTERPRETATION-NHTSA

DATE: 12/08/86

FROM: AUTHOR UNAVAILABLE; Erika Z. Jones; NHTSA

TO: Roger Hagie -- Government Relations Manager, Kawasacki Motors Corp. USA

TITLE: FMVSS INTERPRETATION

ATTACHMT: 10/20/83 letter from F. Berndt to BMW of North America, Inc.

TEXT:

Mr. Roger Hagie Government Relations Manager Kawasaki Motors Corp. USA P.O. Box 25252 Santa Ana, CA 92799-5252

Dear Mr. Hagie:

This is in response to your letter of April 26, 1985, asking for an interpretation of Motor Vehicle Safety Standard No. 108. I regret the delay in responding to your letter.

Specifically, you have called our attention to a proposed motorcycle accessory, consisting in part of a "nylon mesh which is stretched in front of the headlamp lens" and intended to protect the "headlamp from damage by stones or other road debris." You have asked whether this accessory would be permissible under paragraph 54.1.3 of Standard No. 108 which in effect allows optional equipment that does not impair the effectiveness of the lighting equipment that the standard does require. You have advised us that "the nylon mesh does cause some reduction in the photometric output of the lamp" but that testing of the specific headlamp that the mask is designed to fit "has determined that with the mesh in place, light output is still more than 1208 of the minimums specified by SAE J584.. . " You have quoted a 1983 letter from the former Chief Counsel giving two examples of impairment, one a plastic cover causing a dislocation of beam pattern, or a cover that is subject to accelerated hazing or cracking, but you have stated that it is unclear whether any degree of impairment is unacceptable, or only an impairment that causes light output to fall beneath the minimum photometrics prescribed by Standard No. 108.

Because Federal motor vehicle safety standards are minimum performance standards, the fact that the mesh causes some reduction in photometric output does not mean that it "impairs" the effectiveness of the headlamp unless it reduces light output below the minimum levels imposed by the standard. You have stated that with the mesh installed light output is still more than 120% of the minimum required. If Kawasaki is satisfied that this output will be met with any original equipment headlamp, then it may certify compliance with Standard No.

108 of any motorcycle on which the mesh is an original equipment accessory.

The question of the permissibility of the mesh as an after market accessory is not easily answered. Section 108(a)(2)(A) of the National Traffic and Motor Vehicle Safety Act prohibits actions by manufacturers, distributors, dealers, and motor vehicle repair businesses that "render operative in whole or in part" equipment which has been installed to comply with a Federal vehicle safety requirement. We would view dealer-installation of the mesh as rendering a headlamp partially inoperative if it resulted in a diminution of headlamp light output below the standard's minimum level. The prohibition does not apply to owner modifications. Whether an owner modification is legal is answerable under the laws of the States where a vehicle is registered and operated.

A further observation is that although an original equipment headlamp-mesh combination may meet or exceed the minimum photometrics, it is possible that a replacement headlamp would fall beneath the threshold of photometric compliance with the mesh in place. We suggest that you consider these safety issues before proceeding to offer the accessory.

Sincerely,

Erika Z. Jones Chief Counsel

April 26, 1985

Office of Chief Counsel National Highway Traffic Safety Administration 400 Seventh Street, S.W. Washington, D.C. 20590

RE: Request for Interpretation, FMVSS 108

Dear Sir:

Kawasaki Motors Corp., U.S.A. requests an interpretation of the acceptability of a proposed motorcycle accessory, a device to cover and protect the leading surface of a motorcycle fairing and headlamp from damage by stones or other road debris.

More specifically, the product consists of a vinyl or leather "mask" which fits snugly to the front of the fairing and incorporates a nylon mesh which is stretched in front of the headlamp lens.

Our question relates to the issue of whether this mesh covering over the headlamp lens is permissible according to FMVSS 108. Your attention is directed to the letter of October 20, 1983 from then Chief Counsel Frank Berndt to Karl-Heinz Ziwica of BMW North America (file ref. NOA-30), copy attached.

In this letter, Mr. Berndt indicates that NHTSA has "concluded that headlamp covers for motorcycles are not per se prohibited by Standard 108." Mr. Berndt continues to indicate " if they impair the effectiveness of the headlamp." He goes on to describe two examples of impaired effectiveness that the agency would presumably consider contrary to the intent of FMVSS 108: an extreme installation angle of the cover or deterioration of the cover itself.

What remains unclear from Mr. Berndt's letter is whether any degree of impairment of the light output is to be considered unacceptable, or whether the unacceptable level might be reached if the impairment caused light output to drop below the photometric standards applicable to the lamp.

In the case of the mask under consideration by Kawasaki, the nylon mesh does cause some reduction in the photometric output of the lamp. However, testing of the specific headlamp that this mask is designed to fit has determined that with the mesh in place, light output is still more than 120% of the minimums specified by SAEJ584, the applicable standard. Thus, while some "impairment" is acknowledged, performance with the mask in place still exceeds the requirements of FMVSS 108.

In conclusion, Kawasaki seeks NHTSA's opinion whether a mesh headlamp cover which is not subject to hazing, cracking or discoloration, and which does not cause light output to drop below the minimum levels specified by FMVSS 108 would be considered in Compliance with FMVSS 108 if offered for sale on a specific Kawasaki motorcycle.

Thank you for your attention to this matter.

Sincerely,

KAWASAKI MOTORS CORP., U.S.A.

Roger Hagie Government Relations Manager

See 10/20/83 letter from F. Berndt to BMW of North America, Inc.

ID: 86-6.8

TYPE: INTERPRETATION-NHTSA

DATE: 12/08/86

FROM: AUTHOR UNAVAILABLE; Erika Z. Jones; NHTSA

TO: Roger C. Fairchild

TITLE: FMVSS INTERPRETATION

TEXT:

Roger C. Fairchild, Esq. Shutler and Low 12030 Sunrise Valley Drive Suite 209 Reston, VA 22091

Dear Mr. Fairchild:

This is in reply to your letter of October 7, 1986, asking for an interpretation of the joint DOT-Customs regulations applicable to the importation of motor vehicles and equipment subject to the National Traffic and Motor Vehicle Safety Act. You stated your understanding that under 19 C.F.R. l2.8O(b)(l)(iii), the importer of a nonconforming vehicle must certify that the vehicle will not be sold or offered for sale until the NHTSA Administrator issues an import bond release letter. You asked whether this or any other provision prohibits the lease of a vehicle prior to issuance of the NHTSA bond release letter.

Neither this provision nor any other prohibits the leasing of a vehicle during the period prior to issuance of the bond release letter. A sale is generally understood as a transfer of title and possession, whereas a lease involves transfer only of possession. The purpose for the restrictive language in 12.80(b)(l)(iii) is, as you correctly stated, "to assure that any remedial actions required by NHTSA...could be performed by the importer."

I hope that this answers your question satisfactorily.

Sincerely,

Erika Z. Jones Chief Counsel

Erika Z. Jones, Esquire Chief Counsel National Highway Traffic Safety Administration 400 Seventh Street, S.W.

Washington D.C. 20590

Dear Ms. Jones:

I request an interpretation of the joint DOT-Customs regulations applicable to direct import motor vehicles. Under 19 C.F.R. 12.80(b) (l)(iii), the importer of such a vehicle must certify that the vehicle will not be sold or offered for sale until the NHTSA Administrator issues an Import bond release letter. Does this or any other provision administered by NHTSA prohibit the lease of an imported vehicle prior to issuance of the NHTSA bond release letter? If so, what provision imposes such a restriction?

Under a leasing arrangement, the importer would retain title to the vehicle. By retaining title, the importer would have a degree of control over the vehicle, to assure that any remedial actions required by NHTSA (i.e., further vehicle modifications or submission of additional compliance information) could be performed by the importer. Based on discussions with your staff, it is my understanding that this residual control by the importer should satisfy NHTSA's concerns which form the basis for the sale-before-release prohibition.

Thank you for your assistance in this matter.

Sincerely,

Roger C. Fairchild

RCF:hgc

ID: 86-6.9

TYPE: INTERPRETATION-NHTSA

DATE: 12/08/86

FROM: AUTHOR UNAVAILABLE; Erika Z. Jones; NHTSA

TO: Mr. James R. Mitzenberg

TITLE: FMVSS INTERPRETATION

TEXT:

Mr. James R. Mitzenberg Product Safety Engineer The Flexible Corporation 970 Pittsburgh Drive Delaware, OH 13015

Dear Mr. Mitzenberg:

Forgive our delay in replying to your letter of August 21, 1985, asking for an interpretation of Motor Vehicle Safety Standard No. 108, with respect to a deceleration warning system you have been asked to install as original equipment on city transit buses However, on the basis of the information you provided Taylor Vinson of this Office in a phone call on August 13, 1986, we have a better understanding of the system described.

The system as described consists of three amber lamps mounted on the vertical centerline below the rear window. They provide a steady-burning light when the ignition is "on," and when the accelerator is released. They are extinguished when the accelerator is depressed. We have concluded that these aspects of the system are not prohibited by paragraph S4.1.3, which you cited, and which forbids the installation of equipment that impairs the effectiveness of the required lighting equipment.

However, there are two further aspects to the system. The amber lights are also extinguished when the brakes are applied and the normal stop lamps are illuminated, but if the brake application continues for at least 3 seconds the amber lamps will flash at a rate of approximately 60 cycles a minute. You have cited paragraph S4.6 of Standard No. 108 which requires all vehicle lights to be steady-burning, except for turn signals and hazard warning signals, and side marker lamps and headlamps that are flashed for signaling purposes. We have interpreted S4.6 as applying to all lighting equipment on non-emergency vehicles, and not just the equipment required by the standard. This means that the deceleration system must be steady-burning in every mode. There is a good reason for this requirement, as simultaneous use of flashing (amber) and steady-burning (red) lamps have the potential for creating confusion in vehicles to the rear of the bus, and impairing the effectiveness of the required stop lamps within the meaning of S4.1.3.

I hope that this answers your questions.

Sincerely,

Erika Z. Jones Chief Counsel

August 21, 1985

Mr. Jeffery R. Miller Office or Chief Counsel National Highway Traffic Safety Administration 400 Seventh Street, S. W. Washington, D. C. 20590

Dear Mr. Miller:

The Flexible Corporation, a manufacturer or city transit buses, has been requested by several city transit authorities to install a rear deceleration warning light system. These customers have demanded factory installation and operational hook-up of this deceleration warning light system. Other bus manufacturers are supplying such systems without question. Due to this, and by our not agreeing to install the system and make it fully operational, we have found ourselves to be at s distinct marketing disadvantage. We are concerned about certifying our vehicle to FMVSS 108 with an OEM installation or this deceleration light system.

The deceleration light system specified for installation on our bus is manufactured by Safety Development Systems, Haines, Oregon and requires installation on the rear centerline of our bus. See Attachment 11 which depicts the proposed installation method. The housing contains three horizontally aligned amber lights. These amber lights would be installed and operated independently from our normal rear lights and reflectors, which are required FMVSS 108 equipment. These three amber lights operate as described below:

A. When the ignition is "on", the amber lights are illuminated, burning.

B. When the accelerator is depressed, the amber lights are extinguished.

C. When the accelerator is released, the amber lights are illuminated, steady burning, and remain illuminated as long as the accelerator is released.

D. When the brake is applied, the amber lights are extinguished and the normal red atop lights are illuminated. If the brake is continually applied /or three seconds or more, the amber deceleration lights will flash (approximately 60 cycles per minute).

E. The normal amber (red color is optional) rear turn signal could then be illuminated simultaneously with the stop lights and the deceleration lights.

Paragraph S4.6 of FMVSS 108 provides that required signaling lamps shall flash when activated and all other lamps shall be steady burning, except that means mar be provided to flash headlights and side marker lights for signaling purposes.

Paragraph S4.1.3 or FMVSS 108 provides that no additional lamp, reflective device, or other motor vehicle equipment shall be installed that impairs the effectiveness or lighting equipment required by this standard.

In order that we may be customer responsive, we request an interpretation from NHTSA concerning any non-compliance with FMVSS 108 on an OEM installation of these deceleration warning lights functioning as described above.

Sincerely,

James R. Mitzenberg Product Safety Engineer

ID: 8601

Mr. Steve Reeder
President & General Manager
Trails West Manufacturing
P.O. Box 67
Preston, ID 83263

Dear Mr. Reeder:

This responds to your letter of April 21, 1993, to Taylor Vinson of this Office, in which you ask questions about the applicability of Federal Motor Vehicle Safety Standard No. 108 to the livestock trailers that you manufacture.

The trailer box is 78 inches wide, but the overall vehicle width exceeds 80 inches when the fenders are added. You have asked whether such trailers must be equipped with lamps required of vehicles whose overall width is 80 inches or more (clearance and identification lamps) as they will be installed on the trailer box. In an interpretation published in l976 which remains valid today, the agency stated that "overall width" refers to "the nominal design dimension of the widest part of the vehicle . . . exclusive of flexible fender extensions, and mud flaps . . . ." The trailers you manufacture do not appear to be equipped with "flexible fender extensions", according to the literature that you supplied, and therefore the fenders would be included in determining the overall width. Accordingly, they would be required to be equipped with clearance and identification lamps. Although the clearance lamps will be located on the box, they should be placed, as nearly as possible, to indicate the overall width of the vehicle and as near the top as practicable, as Table II of Standard No. 108 requires. Thus, to answer your second question, side marker lamps would be located as required by Table II rather than Table IV.

In determining whether the overall length of the trailer is 30 feet or more for purposes of installation of intermediate side marker lamps and reflectors, you ask whether "the gooseneck or 5th wheel portion of the trailer which extends over the tow vehicle" should be included. The agency has not adopted a definition of "overall length." However, with respect to a trailer that is less than 6 feet in overall length, paragraph S5.1.1.15 requires that "the trailer tongue" be included in the measurement. Therefore we believe that the calculation of overall length for longer trailers should also include the trailer tongue or equivalent connector to the towing vehicle.

You have also asked if "front clearance lights [would] be required where the gooseneck or 5th wheel portion of the trailer extends over the tow vehicle." The answer is yes. Table II of Standard No. 108 requires that amber clearance lamps be located "on the front" and as near the top as practicable, which we interpret to be the foremost, highest part of the trailer.

Your final question relates to regulations for "safety chains" for your products. We are unaware of any Federal requirements that apply to this item of equipment. States may have adopted specifications such as VESC Regulation V5, or SAE Recommended Practice J697 MAY88, which would apply to vehicles operated within their borders. However, we are unable to advise you on State laws, and suggest that you contact, for an opinion, the American Association of Motor Vehicle Administrators (AAMVA), 4600 Wilson Boulevard, Arlington, Va. 22203.

Sincerely,

John Womack Acting Chief Counsel

ref:108 d:5/28/93

ID: 8602

Wayne Ferguson, Research Manager
Transportation Research Council
Department of Transportation
Commonwealth of Virginia
Box 8317 University Station
Charlottesville, VA 22903

Dear Mr. Ferguson:

Thank you for your letter of April 23, 1993, enclosing a copy of a joint resolution of the Virginia General Assembly to study the use of deceleration lights on trucks in the Commonwealth, with the goal of allowing use of these lamps. The Transportation Research Council has been asked to evaluate potential legal problems regarding state regulation of deceleration lights, especially as they may relate to Federal preemption in the area of vehicle safety equipment.

You would like to know whether "the current federal regulations and standards dealing with various vehicle safety devices pre-empt Virginia's proposal to permit deceleration lights on trucks in the Commonwealth?" If the answer is affirmative, you request advice on "the proper course of action to obtain federal approval of the use of deceleration lights." The answer to these questions is dependent upon the preemption provisions of the National Traffic and Motor Vehicle Act (Act) (l5 U.S.C. 1381 et seq.) and the characteristics of any specific warning system.

The Act does not permit a State to impose a safety requirement upon a motor vehicle that differs from a Federal motor vehicle safety standard in any area of performance that is covered by the Federal standard (l5 U.S.C. 1392(d)). The applicable Federal standard in this instance is 49 CFR 571.108, Federal Motor Vehicle Safety Standard No. 108, Lamps, Reflective Devices, and Associated Equipment. We understand that a deceleration warning system is intended to inform a following driver that the vehicle ahead is slowing. Such a system can consist of one or more lamps, red or amber in color, and either flashing or steady-burning in use. Further, such a system can be original motor vehicle equipment or aftermarket equipment.

The Federal requirements of Standard No. 108 apply to original equipment in all instances. Two provisions are important with respect to supplementary lighting equipment such as a deceleration warning system. Under S5.5.10(d), unless otherwise provided by S5.5.10, all original motor vehicle lighting equipment, whether or not required by Standard No. 108, must be steady burning in use. It is for this reason that we informed The Flxible Corporation on December 8, 1986, that we had interpreted Standard No. 108 as applying to all lighting equipment on non-emergency vehicles and not just the equipment required by Standard No. 108. Thus, the amber-lamp deceleration warning system that Flxible had been asked to install on transit buses was acceptable to NHTSA in a steady- burning mode but not a flashing one.

Similarly, we advised Norman H. Dankert on June 3, 1990, and Bob Abernethy on September 7, 1990, that if a deceleration warning system is one that does not consist of additional lamps but one that operates through the tail or stop lamp system, it must also be steady burning.

The second relevant provision is that of S5.1.3; original lighting equipment of a supplementary nature must not impair the effectiveness of the lighting equipment required by the standard. We also informed Flxible that simultaneous use of flashing (amber) and steady-burning (red) lamps have the potential for creating confusion in vehicles to the rear of the bus and impairing the effectiveness of the required stop lamps within the meaning of S5.1.3. On the other hand, the simultaneous use of the Flxible amber and red rear lamps in a steady burning mode would not be precluded by this section.

In summary, we conclude that Virginia could permit the use of a red or amber original equipment deceleration warning system operating in a steady burning mode through either original equipment lamps or supplementary ones.

A system that is not permissible as original equipment would also not be permissible as an aftermarket system. Although the preemption provisions and the Federal motor vehicle safety standards apply to new motor vehicles and new motor vehicle equipment, the Act also provides, for both new and used vehicles, that no manufacturer, distributor, dealer, or motor vehicle repair business may "knowingly rendering inoperative, in whole or in part, any device or element of design installed . . . in compliance" with Standard No. 108 or any other Federal safety standard (15 U.S.C. 1397(a)(2)(A)). An action which created an adverse effect upon lamp performance would partially render inoperative the compliance of a vehicle with Standard No. 108. In our view, flashing deceleration lamps would "render inoperative" the compliant lamps installed by the vehicle manufacturer by potentially confusing following drivers. For this reason, it is our opinion that a manufacturer, distributor, dealer, or motor vehicle repair business that installed a deceleration warning system on a truck in Virginia would be in violation of section 1397(a)(2)(A) if that system consisted of flashing lights, or operated in a flashing mode through lamps that are normally steady burning in use. Since a State may not legitimize conduct that is illegal under Federal law, Virginia could not permit such businesses to install deceleration lamps on vehicles. However, the Act does not prohibit installation of a flashing light system by a person other than a manufacturer, dealer, distributor, or motor vehicle repair business.

For this reason, section 1397(a)(2)(A) does not apply to modifications made by owners to their own vehicles. However, we believe that it would be inappropriate for Virginia to encourage such modifications, in view of the potential adverse safety consequences of unexpected flashing lamps. Moreover, because it appears that the many of the vehicles will be operated in interstate commerce, we suggest that you also obtain the views of the Federal Highway Administration (FHWA) to determine whether that agency's regulations affect trucks with deceleration lights. You should direct your inquiry to James E. Scapellato, Director, Office of Motor Carrier Standards, FHWA, Room 3404, 400 7th Street, S.W., Washington, D.C. 20590.

You also asked about the proper course of action to obtain Federal approval of the use of deceleration lights. The agency does not "approve" or "disapprove" safety systems but will advise, as we do here, whether such systems are permitted or prohibited under Federal law. There appear to be certain types of deceleration warning systems that would not be prohibited under existing Federal law. With respect to systems that would not be allowable under Standard No. l08, these systems could only be permitted if NHTSA were to amend Standard No. 108 through rulemaking. Any person who believes that the standard should be amended may submit a petition for rulemaking. The agency's procedures for petitions for rulemaking are set forth at 49 CFR Part 552.

If we can be of further help, our Office of Research and Development may be able to assist you, and I suggest you contact Michael Perel for copies of pertinent research contracts on deceleration warning systems. Mr. Perel may be reached at 202-366-5675.

Sincerely,

John Womack Acting Chief Counsel

ref:108#VSA d:7/30/93

ID: 8624

Mr. Daniel L. Kokal
Champagne Imports
506 Stonehurst Court
Gainesville, VA 22065

Dear Mr. Kokal:

This is in reply to your letter of May 8, 1993, requesting use of continuous surety bonding for importation of nonconforming vehicles under the Registered Importer program.

As you have informed us, "[c]urrently, single entry bonds are filed with each [nonconforming] vehicle at 150% of the vehicle's value . . . .", and that this is expensive for the importer of Canadian vehicles which "rarely, if ever, require safety modifications to meet U.S. standards." You propose a continuous bond which would cover more than one vehicle, with the same level of value. The example you give is that of a continuous bond of $150,000 which would cover 10 vehicles imported together, each with a value of $10,000 as determined by the U.S. Customs Service, rather than individual bonds for 10 vehicles of $10,000 value, each bond at $15,000. Your specific suggestion is for "the ability to import no more than 15 vehicles under a given continuous bond at 150% total vehicle value."

We are unable to implement your suggestion at present. Under 49 CFR 591.8(a), the safety compliance bond's coverage is restricted to "only one motor vehicle." Thus, rulemaking is required to amend paragraph 591.8(a) to permit a bond that covers more than one vehicle. In addition, Appendix A to Part 591 will have to be modified; this sets forth the terms of the bond, presently expressed in single-entry terms. As NHTSA is required to reimburse Customs for its costs in processing safety compliance bonds, that agency must necessarily be consulted to determine the impact of such a change on its operations, with a possible change in the bond processing fee imposed under Part 594. However, the Office of Vehicle Safety Compliance will consider the feasibility of rulemaking on this subject.

Sincerely,

John Womack Acting Chief Counsel ref:591 d:6/4/93