ID: 12311.ztv

Mr. Craig Homberg
Engineer
Aquatech, Inc.
1777 Miller Parkway
Streetsboro, OH 44241

Dear Mr. Homberg:

This responds to your letter of August 2, 1996, to the former Chief Counsel, Samuel Dubbin, asking for suggestions as to where Aquatech might locate the rear identification lamps on a vehicle that it manufactures. These lamps "are obstructed by a vacuum boom." The lamps cannot be mounted on the boom because it "articulates side to side and extends and retracts." You have enclosed a two-dimensional drawing showing the vehicle from the rear.

Table II of Motor Vehicle Safety Standard No. 108 requires rear identification lamps to be "3 lamps as close as practicable to the top of the vehicle, as close as practicable to the vertical centerline, with lamp centers spaced not less than 6 inches or more than 12 inches apart." Table II does not establish either a minimum or maximum mounting height for these lamps.

The agency realizes that, with some vehicle configurations, the highest practicable location may be approximately the same level as stop and taillamps, such as the frame rail, and the agency has accepted this. Some manufacturers have also added equipment to the vehicle at this level to accommodate identification lamps. The two-dimensional drawing you enclosed shows a horizontal structure below the boom and above the rear axle, where it might be possible to add identification lamps. However, the drawing is two-dimensional and it is not possible for us to assess the dimensional relationship between the horizontal structure and the vertical piece that, in the picture, bisects the lower half of the horizontal structure.

If it is not practicable to add identification lamps on the horizontal structure below the boom and above the rear axle, we would be pleased to advise you further if you would send us a photograph or drawing of the rear that shows the dimensional relationships of the equipment already located there. If you have any further questions, you may call Taylor Vinson of this Office (202-366-5263).

Sincerely,

John Womack

Acting Chief Counsel

ref:108

d:9/6/96

ID: nht76-1.7

DATE: 02/26/76

FROM: AUTHOR UNAVAILABLE; F. Berndt; NHTSA

TO: Alaska Traffic Safety Bureau

TITLE: FMVSS INTERPRETATION

TEXT: This is in response to a request by Mr. William Hall, National Highway Traffic Safety Administration (NHTSA) Regional Administrator for Region X, for a review of Federal Motor Vehicle Safety Standard No. 104, Windshield Wiping and Washing Systems with special consideration of the comments of Mr. Robertson in his memorandum of November 24, 1975.

It is the opinion of this agency that Standard No. 104 is appropriate for the State of Alaska. The essential feature of a wiping system, as far as safety is concerned, is its ability to clear a specific portion of the windshield. The number of wipers necessary to provide the driver with a sufficient field of view is immaterial so long as the minimum percentages of critical areas are washed and wiped. These areas are established in the standard and are determined by the angles from the driver's eye position over which the windshield must be kept clear to provide a proper field of view. While targets of driver attention and environmental conditions may differ from state to state, if the critical areas are clear, the field of view provided to the driver is sufficient. The 1976 Scirocco appears to provide the required field of view.

The question therefore becomes whether the Federal standard on windshield wipers is intended to cover all aspects of wiping systems. If so, the situation is analogous to that presented to the court in Motorcycle Industry Council v. Younger, No. CIV S74-126 (E.D.Cal. 1974) which resulted in a holding that Standard No. 108 did preempt an inconsistent state regulation in the field of lighting requirements. The NHTSA has determined that the standard on windshield wiping systems, No. 104, is intended to leave the number of wipers to the discretion of the manufacturers. Under Thorpe v. Housing Authority of Durham, 393 U.S. 268 (1969), and Chrysler v. Tofany, 419 F2d 499, 511-12 (2d Cir, 1969), the interpretation of this question by the administering agency is "of controlling weight unless it is plainly erroneous or inconsistent with the regulation." Thus, a state regulation differing from the standard would impair the Federal superintendence of the field within the meaning of the doctrine set forth in Florida Lime & Avocado Growers v. Paul, 373 U.S. 132, 141-142 (1963) and be preempted under section 103(d) of the National Traffic and Motor Vehicle Safety Act of 1966, U.S.C. 1392(d).

ID: nht92-1.42

DATE: 12/04/92

FROM: STEPHEN P. WOOD -- ASSISTANT CHIEF COUNSEL FOR RULEMAKING, NHTSA

TO: GEORGE D. JAMES, JR. -- SAFETY CHAIRMAN, UNIT 169 WBCCI

ATTACHMT: ATTACHED TO LETTER DATED 10-24-92 FROM GEORGE D. JAMES, JR. TO PAUL J. RICE (OCC 7931)

TEXT: This responds to your letter of October 24, 1992, with respect to the Tekonsha electronic brake control. You believe that this agency has "approved" this brake control. Based on your experience towing a travel trailer, you expressed concern about the safety of these particular electronic brake controllers when in service on the public roads, because the stop lamps on the towed vehicle are not activated when the electronic brake control is used to apply the trailer's service brakes. You asked us to review our thinking and "rewrite the specs on this matter."

Let me begin by emphasizing that this agency has no authority to "approve," endorse, or offer assurances of compliance to any items of motor vehicle equipment. All that our letters of interpretation purport to do is to answer questions from manufacturers and other members of the public as to whether the manufacture, sale, and/or installation of equipment is permissible under applicable Federal laws and regulations. Our letter of April 3, 1992, to Echlin, Tekonsha's manufacturer, which you quote at one point, was a letter of interpretation, which concluded that "it now appears that the sale of the [Tekonsha] Control is not in violation of the National Traffic and Motor Vehicle Safety Act." This letter and conclusion can in no way be read as "approving," endorsing, or recommending the use of the Tekonsha system.

At this time, we do not have, nor are we aware of, any data indicating that there is a real-world safety problem created by use of the Tekonsha brake control. Hence, we have no reason to change the conclusion announced in the April 3 letter to Echlin about the legality of the Tekonsha control. We would be willing to review this matter again if data become available indicating a potential problem. Thus, if you or any member of your organization learns of any specific safety problems that have arisen for vehicles equipped with the Tekonsha control, please let us know.

I appreciate your interest in highway safety. It is only through the concern and support of citizens like yourself that this agency can achieve its goal of minimizing deaths and injuries on this nation's highways. Thank you for taking the time to let us know your thoughts on this matter.

ID: nht90-3.72

TYPE: Interpretation-NHTSA

DATE: August 30, 1990

FROM: Paul Jackson Rice -- Chief Counsel, NHTSA

TO: Richard E. Portors -- Vice President and General Manager, Royale Limousine Manufacturers

TITLE: None

ATTACHMT: Attached to letter dated 4-5-90 from R.E. Portors to Z.R. Fraser; Also attached to Federal Register, section 571.108, 49 CFR Ch.V (10-1-85 Edition), page 218 (text omitted)

TEXT:

This is in reply to your FAX of April 5, 1990, to Zachary R. Fraser of this agency's Office of Vehicle Safety Compliance, requesting confirmation of your interpretation of a requirement applicable to center highmounted stop lamps. You attached a copy of the requirements for our convenience.

Section S5.1.1.41(a) of Standard No. 108 (S4.1.1.41(a) in your copy) requires the center lamp to have an effective projected luminous area of not less than 4 1/2 square inches. You report that the lamp on the 1990 Cadillac measures 6 square inches in ar ea. When a boomerang TV antenna is installed, the shaft area displaces 1.125 square inches of area which would leave an exposed area of 4 7/8" of light and would exceed the minimum requirements of section (a)." You further state that subsection (b) (re lating to visibility of signal throughout the horizontal angle from 45 degrees right to left of the longitudinal axis of the vehicle) would not be affected. Further, "without window glazing", section (c) relating to compliance with the photometrics of F igure 10, would not be affected either, in your opinion.

First, we note that your interpretation of subsection (a) is not correct. The effective projected luminous lens area of the lamp remains at 6 square inches, because no modifications are performed on the lamp that affect the lens itself. The question for compliance is whether the photometric requirements of subsection (c) are met. We do not understand your phrase "without window glazing", as compliance is determined with the back window in place. However, in our experience, a TV boomerang antenna is, like the lamp, mounted on the vertical centerline of the vehicle, usually the rear deck. In this position, even a shaft that displaces 1.125 square inch of area will block the light from the lamp at test point H-V, and the lamp will not comply with the photometric requirements of "Figher 10, as specified by subsection (c). Therefore, we cannot concur in your interpretation that the design you describe "would not affect the requirements of 571.108."

ID: nht91-3.30

DATE: April 29, 1991

FROM: Paul Jackson Rice -- Chief Counsel, NHTSA

TO: Takeo Wakamatsu -- Executive Vice President and General Manager, Mitsubishi Motors America, Inc.

TITLE: None

ATTACHMT: Attached to letter dated 3-28-91 from Takeo Wakamatsu to Scott Shadle (OCC 5897)

TEXT:

This responds to your March 28, 1991, letter to Mr. Scott Shadle of this agency's Rulemaking office, on behalf of Mitsubishi Motors Corporation (MMC) in Japan. MMC requests approval of its plan for "derating" the gross vehicle weight rating (GVWR) of certain imported trucks for the purpose of marketing strategy. Based on the context of the letter, I presume that you mean that MMC would like to lower the GVWR of the vehicles. The following responds to this request.

NHTSA is not authorized by the National Traffic and Motor Vehicle Safety Act to certify or approve motor vehicles or motor vehicle equipment for compliance with the Federal Motor Vehicle Safety Standards (FMVSS). Each manufacturer is responsible for certifying that its products meet all applicable safety standards.

The GVWR assigned to a vehicle by its manufacturer affects the vehicle's loading and other test conditions to which the vehicle will be subjected during NHTSA's compliance testing for the vehicle. Generally, NHTSA expects the GVWR to reflect a manufacturer's good-faith evaluation of the vehicle's size, weight, and load carrying capacity. The only regulatory limitation on the GVWR that manufacturers may assign to their vehicles is set forth in 49 CFR Part 567, Certification. Section 567.4(g)(3) provides that the assigned GVWR "shall not be less than the sum of the unloaded vehicle weight, rated cargo load, and 150 pounds times the vehicle's designated seating capacity."

There is no regulatory prohibition against a manufacturer lowering the GVWR assigned to its vehicles. Of course, the lower GVWR would have to be not less than the minimum GVWR specified in 567.4(g)(3). Further, the certification label on the vehicle would have to show the lowered GVWR as the GVWR assigned to the vehicle. In addition, the manufacturer must reexamine its certification of compliance for the vehicle to ensure that the vehicle continues to comply with all safety standards at this new lower GVWR, and that the vehicle continues to comply with all other NHTSA regulations (such as 49 CFR Part 565, Vehicle Identification Number-Content Requirements) at the lower GVWR. Assuming these conditions would be satisfied, MMC would be permitted to lower the GVWR assigned to these vehicles.

I hope that this information is helpful. Please feel free to contact us if you have any further questions.

ID: nht91-4.29

DATE: June 25, 1991

FROM: Paul Jackson Rice -- Chief Counsel, NHTSA

TO: Debby Funk

TITLE: None

ATTACHMT: Attached to letter dated 6-4-91 from Debby Funk to The United States Department of Transportation (OCC 6130)

TEXT:

This responds to your letter of June 4, 1991, to the Department requesting information regarding regulations on the display of lighted signs in vehicles. If they are not prohibited, you are interested in regulations governing size, placement, color, luminosity, and power source "(i.e. batteries, wire connections to either brake lights or cigarette lighter)."

There are no Federal regulations or restrictions that directly prohibit the use of lighted signs in vehicles. However, there may be State and local laws that do. We are not in a position to advise you as to these laws, but you may write the American Association of Motor Vehicle Administrators for an opinion. The address is 4600 Wilson Boulevard, Arlington, Va. 22203.

If you are contemplating a commercial venture in supplying lighted signs for use in motor vehicles, there are somewhat different considerations. Under the National Traffic and Motor Vehicle Safety Act, once a vehicle has been sold and in use, a manufacturer, distributor, dealer, or motor vehicle repair business may not modify it in any way that would create a noncompliance with any Federal motor vehicle safety standard with which the vehicle originally complied. Thus, installation of a lighted sign by any of the foregoing persons could affect compliance with Standard No. 111, Rearview Mirrors and Standard No. 108, Lamps, Reflective Devices, and Associated Equipment. If the size of the sign interferes with the field of view in the interior mirror, a mirror must be provided on the exterior of the passenger side (most new cars today come equipped with these mirrors). If the sign is wired to the stop lamps, it must not result in a diminution of power that reduces the light from the lamp below the minimum levels specified in the standard. However, if the device is intended for owner installation, the foregoing discussion does not apply, as the Vehicle Safety Act does not prohibit owners from modifying their vehicles in any manner they choose, even if the modification creates a noncompliance.

Our regulations do prohibit combining the center highmounted stop lamp with any other lamp or device such as a lighted display sign. However, there is no Federal prohibition governing manufacture and sale of these devices. If you have further questions, we shall be pleased to respond.

ID: nht91-5.44

DATE: September 11, 1991

FROM: Paul Jackson Rice -- Chief Counsel, NHTSA

TO: John Marcum -- Chairman, Electric Vehicles S.A.

TITLE: None

ATTACHMT: Attached to letter dated 4-26-91 from John Marcum to Paul Jackson Rice (OCC 5988)

TEXT:

This responds to your letter of April 26, 1991, asking for a clarification of my letter to you of April 22.

As we advise you, under 49 CFR section 591.5(j), a nonconforming minibus may be imported if the purpose of its importation is "research, investigations, studies, or demonstrations or training." You ask whether "demonstrations or training" includes the carrying of passengers for demonstrations and evaluations. The answer is yes. Where, as here, the imported vehicle is intended for public transit, the carrying of passengers would appear to be an important and necessary part of demonstrating the features of the bus and evaluating the feasibility of offering electric-power public transportation in the United States.

You also ask whether there are any special conditions that may be observed, such as whether passengers should be charged for the rides. There are no special conditions that NHTSA has imposed under section 591.5(j) that relate to your operation. However, any test should be consistent with safe vehicle operation, such as not loading the vehicle above the capacity of the tires and suspension, having adequate braking ability, and provision for sufficient emergency exits. The question of whether a fee should be imposed for riding the bus could be relevant in a personal injury action brought against you by a rider; however, this is not a question to be answered under Federal law. You should consult a private attorney for guidance.

The fact that the law allows importation of a nonconforming bus for purposes of demonstration should not be interpreted as meaning that NHTSA is not concerned with the safety of a vehicle engaged in transporting members of the public. The agency believes that importers of buses should ensure that the vehicle is not loaded above the capacity of the tires and suspension, and that there is adequate braking ability and provision for emergency exits. Importers are reminded that the agency has the authority to impose terms and conditions related to safety in permitting importations of this nature.

Finally, you ask if there is a limit as to the length of time a demonstration with passengers is permitted. So long as the demonstration is ongoing and the length of time is reasonable, demonstrations with passengers would be permitted for the duration of the vehicle's stay in the United States.

ID: nht92-8.39

DATE: February 29, 1992

FROM: Allan Schwartz -- President, Tron Industries, Inc.

TO: Taylor Vinson -- Legal Counsel, NHTSA

TITLE: FMVSS 108

ATTACHMT: Attached to letter dated 4/21/92 from Paul J. Rice to Allan Schwartz (A39; Std. 108)

TEXT:

We are the manufacturer of LUMITRON, an electronic neon lighting kit for vehicles which is sold and installed as an automotive aftermarket product. Each LUMITRON neon tube is enclosed and sealed in polycarbonate tubing and is energized by a miniature electronic module which is connected to each tube. Our LUMITRON tubes are not like the neon tubes made by local sign shops and used under vehicles. LUMITRON tubes require NO external high voltage (6,000 to 12,000 volt) transformers and NO interconnections of high voltage GTO wires running under the vehicle between the neon display tubes and into the engine compartment.

The product described above is legal for street use as long as it is installed below bumper level and under the vehicle. We do NOT manufacture this product for street use in RED, BLUE, YELLOW, and WHITE because they are reserved for Police, Fire and Emergency Services. After speaking with both The Florida Highway Patrol and Mr. Kevin Cavey, N.H.T.S.A., Dept. of Transportation they confirmed our findings that our product falls under 49 CFR Ch. V (10-1-90 Edition) Sec. 571.108. A highlighted copy of this section is enclosed for your convenience to reference. As you can imagine we were delighted to learn that our LUMITRON neon lighting kit, when installed and used as per our instructions, places the user's vehicle into further compliance with S2 Purpose as it illuminates the roadway and enhances the conspicuity of the vehicle thus reducing the possibility of traffic accidents, deaths and injuries.

We have been informed by our dealer, Mr. Harry Adcock of All State Audio Services, Inc., 11554 Plank Road, Baton Rouge, LA 70811 that Louisiana and possibly other states have not uniformly adopted or follow the Code of Federal Regulations, 49 CFR Ch. V as it pertains to automotive aftermarket lighting. Authorities in Louisiana believe these products are legal but they have to be approved by the Commissioner. We would be most appreciative if you could write us a letter confirming what we already understand about this regulation that we could submit to the Commissioner. He would then be able to adopt it as Louisiana Law thus making our product legal for use in that State. Thank you for your prompt attention to this matter.

ID: 77-1.22

TYPE: INTERPRETATION-NHTSA

DATE: 02/11/77

FROM: AUTHOR UNAVAILABLE; Frank Berndt; NHTSA

TO: British Standards Institution

TITLE: FMVSR INTERPRETATION

TEXT: This responds to the British Standards Institution's December 2, 1976, request to know what constitutes "first purchase of [a new motor vehicle] in good faith for purposes other than resale" as this phrase is used on @ 108(b)(1) of the National Traffic and Motor Vehicle Safety Act (the Act) (15 U.S.C. @ 1397(b)(1) and @ 567.7 of NHTSA regulations (Part 567 -- Certification). You also ask to know the legal basis for any distinction between "original equipment" and "replacement equipment" as those terms are used in regulation of motor vehicles and equipment in the United States.

I can confirm your understanding of @ 567.7 of our regulations, as set forth in the statements which you designate as "(a)" and "(b)". With regard to statement "(b)", @ 108 (a)(2)(A) of the Act prohibits, except in the process of repair, a manufacturer, distributor, dealer, or repair business from knowingly rendering inoperative in whole or part, any device or element of design installed in a motor vehicle incompliance with an applicable standard. Thus a dealer could not make the sunroof alteration if he knew that installation rendered inoperative the minimum roof crush capabilities specified by Standard No. 216, Roof Crush Resistance.

Your statement designated "(c)" is not necessarily correct. The NHTSA's interpretation of the meaning of "first purchase" relies substantially on the modifier "in good faith."

Thus the agency evaluates the circumstances of the purchase with a view to whether or not there is an attempt to circumvent the requirements of law and applicable regulation. For example, when purchasers asked for disconnection of ignition interlock systems by dealers after contracting for the purchase of a vehicle, the agency required that bona fide physical delivery take place without an immediate return of the vehicle to the dealer for disconnection. As a practical matter, the new provision of the Act discussed above (@ 108(a)(1)(A)) prohibits dealer action of this type in the future.

Since the 1974 amendments to the Act, there has been a distinction between "original equipment" and "replacement equipment". I have enclosed a copy of our proposal to implement this distinction for purposes of Federal regulation. I believe your question actually addresses the practices of the American Association of Motor Vehicle Administrators. You may wish to contact one or more of those organizations for an answer to your questions.

ID: nht90-1.87

TYPE: INTERPRETATION-NHTSA

DATE: 03/28/90

FROM: ROBERT W. GENZMAN -- US ATTORNEY FOR MIDDLE DISTRICT FLORIDA; DEPARTMENT OF JUSTICE

TITLE: NONE

ATTACHMT: ATTACHED TO LETTER DATED 06/25/90, FROM PAUL JACKSON RICE -- NHTSA TO LAWRENCE J. SMITH -- CONGRESS; A35; VSA 108 [A] [2] [A]; STANDARD 205; LETTER DATED 05/30/90 FROM NANCY L. BRUCE -- DOT TO LAWRENCE J. SMITH -- CONGRESS; LETTER DATED 05/25/9 0 FROM LAWRENCE J. SMITH -- CONGRESS TO NANCY BRUCE -- DOT; NEWSPAPER ARTICLE; UNDATED BY UPI; US SUES 4 AUTO TINTING SHOPS; OCC 4842 NEWSPAPER ARTICLE DATED 03/30/90; BY STEVE MOORE -- BUSINESS MARKETS; LOCAL CRAFTSMAN UNSWAYED BY FEDERAL CIVIL LAWSUITS ; NEWSPAPER ARTICLE DATED 03/29/90 BY BRUCE VIELMETTI -- ST PETERSBURG TIMES; US CRACKS DOWN ON WINDOW TINTERS; NEWSPAPER ARTICLE DATED 03/29/90 FROM JIM LEUSNER -- ORLANDO SENTINEL; US SUES CAR-WINDOW TINTERS - LET THERE BE MORE LIGHT; 1984 FLORIDA AUTO TINT LAW

TEXT: Robert W. Genzman, the United States Attorney for the Middle District of Florida, in conjunction with the Department of Justice in Washington, D.C., announced today the filing of civil lawsuits charging six Florida corporations with violations of federal safety standards. The civil complaints allege that the named corporations installed tinted products on windows of motor vehicles in such a manner that less light was transmitted through the windows than federal safety standards permit.

Named as defendants in the Orlando Division of the United States District Court for the Middle District of Florida are Blue Skies Projects, Inc., d/b/a Flying Window Tinters, of Orlando, and Shakespearin, Inc. of Holly Hill. Seminole Solar Systems, In c. of Largo; Allied Glass Tint, Inc. of Tampa, 3801, Inc., d/b/a Window Kote, and Solar Graphics, Inc., of St. Petersburg, were named as defendants in the Tampa Division or the Middle District of Florida.

Under National Highway Traffic and Safety Administration Acts standards, automobile glass must transmit at least 70 percent light through their surfaces. The civil complaints allege that the named defendants applied coated materials to the windows of motor vehicles in an amount resulting in transmission of light less than that permitted by the standard.

Mr. Genzman stated that the applicable federal standards were imposed to establish minimum visibility standards and to prevent accidents. The civil complaints seek to enjoin violation of the Act, and to impose $ 800,000.00 in civil penalties.