ID: 18890.jeg

Mr. Meyer Snyder
5134 Bocaw Pl
San Diego, CA 92115-1717

Dear Mr. Snyder:

This responds to your letter asking whether you can have the force of the air bags on your 1995 Toyota Camry "turned down." You asked whether this can be done at your Toyota dealer and, if not, where it could be done, and whether you would have to pay for this modification.

As discussed below, there is no legal impediment to vehicle manufacturers and dealers modifying older vehicles so that they have the same kinds of redesigned air bags being offered on most new vehicles. However, such modifications would likely be very complicated and potentially expensive, and we are not aware of any vehicle manufacturers or dealers which make such modifications. You may wish to ask Toyota about whether it is possible to modify your vehicle in this manner and at what cost.

By way of background information, the National Highway Traffic Safety Administration (NHTSA) is authorized to issue Federal motor vehicle safety standards that apply to the manufacture and sale of new motor vehicles and new motor vehicle equipment. One of the standards we have issued is Standard No. 208, Occupant Crash Protection (49 CFR 571.208). Manufacturers install air bags in passenger cars as part of complying with the occupant protection requirements of Standard No. 208.

While the Federal motor vehicle safety standards apply only to new motor vehicles and new motor vehicle equipment, Federal law limits the modifications that can be made by certain businesses to used vehicles. Manufacturers, distributors, dealers, and repair businesses are prohibited from "knowingly making inoperative" any device or element of a design installed on or in a motor vehicle in compliance with an applicable safety standard (49 U.S.C. 30122).

A manufacturer, dealer or other business which modified the air bags on your 1995 Toyota Camry would not violate the "make inoperative" provision if, after the modification, the vehicle continued to meet the relevant requirements in effect either on the date of manufacture or as later amended. In 1997 NHTSA amended Standard No. 208 to make it easier for manufacturers to quickly redesign their air bags, e.g., by reducing the power as compared to previous years. Compliance with the amended requirements would thus not violate the "make inoperative" provision. As noted earlier, however, the modifications that would need to be made to an existing vehicle so that it would have redesigned air bags would likely be very complicated and potentially expensive, and we are not aware of any vehicle manufacturers or dealers which make such modifications.

I am pleased to hear that you do not want your air bags turned off. The vast majority of persons, including short persons, are much safer with air bags. Among other things, an air bag will minimize the risk of violently striking the steering wheel and dashboard in a moderate to severe crash.

I would also like to point out that there are a few basic steps that you can take to minimize air bag risks, including wearing your safety belts and, when driving, keeping at least 10 inches between the center of the air bag cover and your breastbone. I have enclosed an information brochure, written in the context of making an informed decision about on-off switches, which provides additional information concerning how you can reduce air bag risks.

Sincerely,
Frank Seales, Jr.
Chief Counsel
Enclosure
ref:208
d.2/3/99

ID: 18891.wkm

Ms. Kristy Harren
R. M. Johnson Company, Inc.
890 Norway Drive
Post Office Box "J"
Annandale, MN 55302

Dear Ms. Harren:

Please pardon the delay in responding to your letter to Walter Myers of my staff in which you asked whether the E-Z Car Crusher and the E-Z Log Baler that your company produces are excluded from the antilock brake system (ABS) requirements of Federal Motor Vehicle Safety Standard (Standard) No. 121, Air brake systems. The answer is yes.

You enclosed descriptive brochures showing pictures of the car crusher and the log baler. You stated that axles are installed on these products as a base and as a mode of transporting them from the factory to the customer. You also stated that these units are designed to spend extended periods of time at off-road job sites, although customers will occasionally transport them from job site to job site. You referred to 49 U.S. Code (U.S.C.) 30102(a)(6), which defines the term "motor vehicle," in support of your assertion that your equipment is exempt from Standard No. 121 because the primary function of the units is not for use on public streets, roads, and highways. The units are towed to their job sites by a semi-tractor, then detached and left at the sites to perform their primary functions.

Chapter 301 of Title 49, U.S. C., hereinafter referred to as the Safety Act, authorizes this agency to establish Federal motor vehicle safety standards applicable to new motor vehicles and new items of motor vehicle equipment. You correctly cited 49 U.S.C. 30102(a)(6) as defining "motor vehicle," which is:

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

In reviewing the information you provided, including the informational brochures enclosed with your letter, it is our opinion that the car crusher and the log baler you described and as depicted in the brochures are not motor vehicles within the statutory definition. They are designed to be used primarily off-road and although capable of being transported on-road from the factory to the customer and by the customer from one job site to another, their on-road use is only incidental to the primary purposes for which they were manufactured. This contrasts with instances in which vehicles such as dump trucks frequently use the public roads going to and from off-road job sites, but stay there for only a limited time. Such vehicles are considered motor vehicles for purposes of the Safety Act because their on-road use is more than merely "incidental."

In view of the above discussion, your car crusher and your log baler are not considered motor vehicles and are therefore not required to comply with the Federal motor vehicle safety standards, including the ABS requirements of Standard No. 121.

I hope this information is helpful to you. Should you have any questions or need further information, feel free to contact Mr. Myers at this address or at (202) 366-2992, or by fax at (202) 366-3820.

Sincerely,
Frank Seales, Jr.
Chief Counsel
ref:121
d.5/25/99

ID: 18892.wkm

Mr. John L'Espoir
President
Enid Drill Systems, Inc.
4510 East Market Street
Enid, OK 73701-9686

Dear Mr. L'Espoir:

Please pardon the delay in responding to your letter to Walter Myers of my staff in which you enclosed informational brochures of different models of water well drilling equipment that your company produces. You stated that your equipment is used off-road to drill water wells, and that some of your designs incorporate tandem axle and triple axle semi-trailers equipped with air brakes. You also stated that you produce buggies that are used exclusively in stone and gypsum mines and that are transported on low-boy trailers. You asked whether your well drilling equipment and buggies are subject to applicable antilock brake system (ABS) requirements as set forth in Federal Motor Vehicle Safety Standard (Standard) No. 121, Air brake systems. The answer is no.

Chapter 301 of Title 49, U.S. Code (U.S.C.), hereinafter referred to as the Safety Act, authorizes the National Highway Traffic Safety Administration (NHTSA) to establish Federal motor vehicle safety standards (FMVSS) applicable to new motor vehicles and new items of motor vehicle equipment. Section 30102(a)(6) of Title 49, U.S.C. defines "motor vehicle" as:

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

In reviewing the information you provided, including the informational brochures enclosed with your letter, it is our opinion that the water well drilling equipment and the buggies that you produce, as you described and as depicted in the informational material, are not motor vehicles within the statutory definition. The water well drillers are designed to be used primarily at off-road job sites and, although capable of being transported on-road from one job site to another, their on-road use is only incidental to the primary purpose for which they were manufactured. The buggies are used exclusively at stone and gypsum mines and whenever transported, are carried on low-boy trailers. This contrasts with instances in which vehicles such as cement mixer trucks and dump trucks frequently use the public roads going to and from off-road job sites, but remain there for only a limited period of time. Such vehicles are considered motor vehicles for purposes of the Safety Act because their on-road use is more than merely "incidental."

In view of the above discussion, your water well drilling equipment and the buggies used in stone and gypsum mines are not motor vehicles and are therefore not required to comply with the FMVSSs, including the ABS requirements of Standard No. 121.

I hope this information is helpful to you. Should you have any questions or need further information, feel free to contact Mr. Myers at this address or at (202) 366-2992, or by fax at (202) 366-3820.

Sincerely,
Frank Seales, Jr.
Chief Counsel
ref:121
d.4/16/99

ID: 18897-1a.wkm

Phillip A. Proger, Esq.
Jones, Day, Reavis & Pogue
Metropolitan Square
1450 G Street, NW
Washington, DC 20005-2088

Dear Mr. Proger:

Reference is made to your meeting with Messrs. Daniel, Myers, and Woods of this agency on October 1, 1998, and to your letter of October 8, 1998⁽¹⁾. You asked us to confirm your interpretation of the indicator lamp requirements of subparagraph S5.3.1 of Federal Motor Vehicle Safety Standard No. 105, Hydraulic and electric brake systems, as amended by final rule of March 10, 1995, (60 FR 13216).

You stated that you believe the requirements do not preclude LVBS [Lucas Varity Light Vehicle Braking Systems] and its customers from providing for indicator lamp illumination for purposes not expressly stated in subparagraph S5.3.1. You also stated that you believe that should LVBS or its customers decide to provide for lamp illumination for purposes not expressly required in Standard No. 105, as amended, the lamp activation protocol set forth therein will not apply to these additional lamp illumination strategies.

We begin by noting that we cannot provide so broad an interpretation as you suggest. Moreover, your letter does not provide sufficient detail as to what LVBS may have in mind for us to provide a specific interpretation. It is our general understanding, however, that LVBS is primarily interested in providing for illumination of the separate antilock brake system (ABS) malfunction indicator lamp in circumstances not directly addressed by S5.3.1. The issues raised by that factual situation are addressed below.

The introductory paragraph of subsection S5.3 of Standard No. 105, as amended, requires each vehicle to which the standard applies to have a brake system indicator lamp or lamps that meet the requirements of S5.3.1 through S5.3.5. That provision further requires that vehicles with a gross vehicle weight rating of 10,000 pounds or more have a separate indicator lamp for ABS malfunctions.

Paragraph S5.3.1 of the standard requires that an indicator lamp must be activated when any of the conditions specified therein occur, one of which, at S5.3.1(c), requires the lamp to activate at the occurrence of:

A malfunction that affects the generation or transmission of response or control signals in an antilock brake system, or a total functional electrical failure in a variable proportioning brake system.

NHTSA originally proposed to require that the ABS malfunction indicator lamp (MIL) activate "in the event of any malfunction in the system" (see Notice of Proposed Rulemaking, September 28, 1993, 58 FR 50738, 50749). Several commenters, including fleet operators and brake manufacturers, objected to that proposal, arguing that requiring the MIL to activate for "any" malfunction was impracticable, unreasonably costly, and overly broad. NHTSA, persuaded by the comments and other available information, modified the proposal and decided on the provision quoted above in the final rule of March 10, 1995 (60 FR 13216).

In explaining its rationale for that requirement, the agency stated:

Under the modified requirement [of S5.3.1(c)], only those malfunctions that are directly related to the antilock brake system must be indicated. Applying the indicator requirement to the "generation" of response and control signals serves to cover the components in the ABS that produce these signals. These components include wheel speed sensors which produce response signals for the control unit, and the control unit which produces control signals for input into the valves that modulate brake pressure. Applying the indicator requirement to the "transmission" of response and control signals serves to cover the components in the ABS through which the generated signals are transmitted. These components include wiring, connectors, belts used in mechanical systems, and all components through which a generated signal can be transmitted.

60 FR 13246 (emphasis added).

NHTSA explained at page 13245 that the requirement does not apply to malfunctions such as sticking solenoid valves, small air leaks in the solenoid valve, or mechanical binding of a valve.

The purpose of these provisions is to indicate to drivers and inspectors that a malfunction exists in the ABS and that repairs are needed. As we noted in our response to petitions for reconsideration, 60 FR at 63972 (December 13, 1995):

The agency explained [in the final rule of March 10, 1995] that this ABS malfunction lamp format, together with the requirement that the system stores malfunctions until the next key-on, is necessary to enable Federal and State inspectors to determine the operational status of an ABS without moving the vehicle.

Accordingly, these provisions, particularly the conditions that require activation of the MIL, are very specific.

It is our opinion that illumination of the ABS malfunction indicator lamp in circumstances not directly addressed by S5.3.1(c) is permissible only if the additional conditions are directly related to ABS malfunction. Stated another way, any other malfunction conditions programmed into the system must be similar in nature to those specified in S5.3.1(c). Moreover, the lamp activation protocol must be the same. If the conditions programmed into the system differed in nature from the ones specified in S5.3.1(c), or if the lamp activation protocol differed, the meaning of the ABS malfunction lamp would be obscured. Drivers and inspectors would no longer know what was meant by the illumination/non-illumination of the lamp.

If you wish for us to provide a more specific opinion or one addressing other indicator lamps, we would need more specific information as to what LVBS may have in mind, i. e., the specific conditions it would want to program into the system.

I hope this information is helpful to you. Should you have any questions or need additional information, feel free to contact Mr. Myers or Mr. Woods at (202) 366-2992, or (202) 366-6206 respectively.

Sincerely,
Frank Seales, Jr.
Chief Counsel
Ref:101#105
d.5/14/99

1. We note that you sent us three letters dated October 8, 1998, all referring to the October 1, 1998 meeting and all relating to the malfunction indicator lamp protocol of Standard No. 105. We are responding to the three letters separately.

ID: 18897-2.wkm

Phillip A. Proger, Esq.
Jones, Day, Reavis & Pogue
Metropolitan Square
1450 G Street, NW
Washington, DC 20005-2088

Dear Mr. Proger:

This refers to your meeting with Messrs. Daniel, Myers, and Woods of this agency on October 1, 1998 and to your letter of October 8 to Mr. Myers of my staff.⁽¹⁾ You asked two questions, as discussed below.

Your first question concerned paragraph S5.3.3(b), Federal Motor Vehicle Safety Standard (Standard) No. 105, Hydraulic and electric brake systems, as amended (hereinafter referred to as "New 105").⁽²⁾ You correctly stated that S5.3.3(b) of New 105 requires a message of malfunction to be stored in the antilock brake system (ABS) if it exists when the ignition is turned to the "off" position (ignition cycle No. 1) so that it again illuminates the malfunction indicator lamp (MIL) when the ignition is next turned to the "on" or "run" position (ignition cycle No. 2). You first asked how long the MIL must remain illuminated after being activated in ignition cycle No. 2. You stated that clarification of this point is essential since certain malfunctions, which you did not specify, can only be detected and confirmed when dynamically tested for at speed, but that S5.3.3(b) appears to require that the MIL remain illuminated indefinitely when a message of malfunction exists. You are correct that S5.3.3(b) so provides.

Paragraph S5.3.3(a) of New 105 provides:

Each indicator lamp activated due to a condition specified in S5.3.1 shall remain activated as long as the malfunction exists, whenever the ignition (start) switch is in the "on" (run) position, whether or not the engine is running (emphasis supplied).

S5.3.3(b) then provides:

For vehicles with a GVWR [gross vehicle weight rating] greater than 10,000 pounds, each message about the existence of a malfunction, as described in S5.3.1(c), shall be stored in the antilock brake system after the ignition switch is turned to the "off" position and the indicator lamp shall be automatically reactivated when the ignition switch is again turned to the "on" position. The indicator lamp shall also be activated as a check of lamp function whenever the ignition is turned to the "on" (run) position. The indicator lamp shall be deactivated at the end of the check of lamp function unless there is a malfunction or a message about a malfunction that existed when the key switch was last turned to the "off" position.

Thus, read together, S5.3.3(a) and (b) provide that the MIL must remain activated as long as the malfunction exists, whether in ignition cycle No. 1 or No. 2. Further, the malfunction message must be stored in the system so that the MIL automatically activates when the ignition is again turned to the "on" position. The MIL must also activate as a check of lamp function any time the ignition is turned to the "on" position, but must deactivate at the end of that check of lamp function, unless a malfunction message was previously stored in the system. Accordingly, whenever the ignition switch is on, regardless of the number of ignition cycles, once the MIL activates in response to a malfunction message, the lamp must remain illuminated until the malfunction no longer exists, however long that may be.

Your second question also concerned illumination of the MIL. You stated that Lucas Varity Light Vehicle Brake Systems (LVBS) believes that once the MIL has been illuminated as the result of a message of malfunction, it would be desirable for the MIL to be deactivated when any vehicle motion is detected. You stated that this approach would provide advisories to drivers, relief drivers, and inspectors while avoiding false positive malfunction indications. You stated that certain malfunctions, again unspecified, cannot be verified until dynamic testing is completed at speeds ranging between 8 and 15 miles per hour (mph). Thus, LVBS prefers to deactivate the MIL once any vehicle motion is detected and illuminate it again only when the existence of a malfunction is confirmed through dynamic testing at speed. Then, as soon as a malfunction is so verified, the MIL will again illuminate.

This question is answered by the answer to question 1 above, namely that the MIL, after momentary illumination for the bulb check function, must remain illuminated if either a malfunction is detected or a message of a malfunction was stored at the end of the previous ignition cycle. The MIL must remain illuminated until it is determined that a system malfunction is no longer present. Note that a message of malfunction stored at the end of an ignition cycle may be deleted from memory if repairs are performed to restore proper system functioning prior to initiation of the next ignition cycle.

We note that the agency addressed the issue of the MIL being either illuminated or extinguished during low-speed driveaway after key-on in the final rule of March 10,1995, 60 FR at page 13246, wherein NHTSA stated:

NHTSA has decided to require the malfunction indicator lamp to activate when a problem exists and not activate when the system is functioning properly. Under this requirement, the indicator lamp is required to provide a continuous indication until a function check of the ABS is completed. The agency believes that this ABS malfunction lamp format, together with the requirement that the system stores malfunctions until the next key-on, is necessary to enable Federal and State inspectors to determine the operational status of an ABS without moving the vehicle.

In its petition for reconsideration of the final rule on this issue, Navistar suggested allowing the vehicle to be in motion at low speed during an ABS system check so that the sensor check could be included before the lamp extinguished. In denying that suggestion, the agency stated at 60 FR 63972:

NHTSA believes that the requirement that the system store malfunctions until the next key-on is necessary to enable Federal and State inspectors to determine the operational status of an ABS without moving the vehicle. . . . Navistar's request to allow the vehicle to be in motion before the lamp extinguishes would impede [Federal Highway Administration's] inspection process to determine the operational status of ABS. The agency therefore has decided to deny Navistar's petition to amend the malfunction lamp protocol to allow the lamp to stay lit until the vehicle is driven.

In a further response to petitions for reconsideration dated March 16, 1998 (63 FR 12660), the agency again addressed the issue of the MIL remaining activated during a low-speed drive away. Kelsey-Hayes requested that the agency reconsider the activation protocol requirements for the MIL in the final rule of March 10, 1995. Kelsey-Hayes stated that allowing the MIL to remain illuminated during a low-speed drive away would serve to verify that the vehicle's wheel speed sensors were properly functioning. NHTSA denied that request, citing three reasons:

First, a standardized protocol would enable Federal and State safety inspection personnel to determine the operational status of ABSs without having to move the vehicle. Second, it would preclude confusion among heavy vehicle drivers relative to how this type of lamp functions. Third, standardization would be consistent with ECE requirements on this subject and would, therefore, be consistent with the goal of international harmonization.

It is clear that NHTSA has repeatedly considered the issue of the continuous illumination of the MIL and has, on each occasion, reiterated its decision to require that the lamp remain illuminated when a malfunction message exists whenever the ignition switch is in the on position, in all ignition cycles, and be extinguished if no malfunction exists. Accordingly, the lamp may not remain illuminated (absent a detected malfunction on a stored malfunction message) pending a sensor check at speed, nor may it be extinguished pending "confirmation" of a malfunction at speed.

I hope this information is helpful to you. Should you have any questions or need additional information, feel free to contact Mr. Myers or Mr. Woods at this address or by telephone at (202) 366-2992 and (202) 366-6206 respectively.

Sincerely,
Frank Seales, Jr.
Chief Counsel
Ref:105
d.5/14/99

1. We note that you sent us three letters dated October 8, 1998, all relating to the October 1, 1998 meeting and all relating to the malfunction indicator lamp protocol of Standard No. 105. We are responding to the three letters separately.

2. The applicable amendments to Standard No. 105 were scheduled to become effective on March 1, 1999. That date was extended, however, until September 1, 1999 by Interim Final Rule; Request for Comments dated February 26, 1999 (64 FR 9446).

ID: 18897-3.wkm

Phillip A. Proger, Esq.
Jones, Day, Reavis & Pogue
Metropolitan Square
1450 G Street, NW
Washington, DC 20005-2088

Dear Mr. Proger:

This refers to your meeting with Messrs. Daniel, Myers, and Woods of this agency on October 1, 1998, and your letter of October 8, 1998,⁽¹⁾ in which you asked whether it was permissible to deactivate momentarily the antilock brake system (ABS) malfunction indicator lamp (MIL) following a bulb check for an ABS diagnostic test. The answer is no.

Your letter stated that Lucas Varity Light Vehicle Braking Systems (LVBS) desires to perform an ABS diagnostic test immediately following the bulb check, thereby deactivating the MIL momentarily. Following this momentary deactivation, the lamp would again illuminate if a malfunction message existed in the system. You stated that one or more of your diagnostic tests would seek to determine whether a short circuit existed in the system which may inadvertently activate the MIL, and that other unspecified tests cannot be performed while the lamp is activated. You stated that a momentary deactivation of the MIL following the bulb check would be beneficial and consistent with the overall purpose of the lamp activation protocol of Federal Motor Vehicle Safety Standard (Standard) No. 105, Hydraulic and electric brake systems, as amended.⁽²⁾

Paragraph S5.3 of Standard No. 105 requires each vehicle to which the standard applies to have a brake system indicator lamp or lamps that meet the requirements of S5.3.1 through S5.3.5. Vehicles with a gross vehicle weight rating (GVWR) of 10,000 pounds or less may have a single brake system indicator lamp, while vehicles with GVWRs greater than 10,000 pounds must have a separate indicator lamp for ABS malfunction. Further, vehicles with GVWRs greater than 10,000 pounds are required by S5.3.3(b) to store a malfunction message in the ABS after the ignition switch is turned to the "off" position so that the MIL is automatically reactivated when the ignition switch is again turned to the "on" position. The MIL must also be activated during the check of lamp function, or "bulb check," whenever the ignition switch is turned to the "on" position, and deactivated at the end of the bulb check unless a malfunction is present or a malfunction message exists from the previous ignition cycle. Thus, after the check of lamp function, if a malfunction message exists, the MIL must remain illuminated after the other indicator lamps deactivate. No deactivation of the MIL at that point, however "momentary," is permitted by the standard. Permitting the MIL to extinguish, even "momentarily," would defeat the purpose of the requirement and could be confusing to drivers and inspectors.

I hope this information is helpful to you. Should you have any questions or have need any additional information, feel free to contact Mr. Myers at this address or at (202) 366-2992, or fax at (202) 366-3820.

Sincerely,
Frank Seales, Jr.
Chief Counsel
Ref:105
d.5/14/99

1. We note that you sent us three letters dated October 8, 1998, all referring to the October 1, 1998 meeting and all relating to the malfunction indicator lamp protocol of Standard No. 105. We are responding to the three letters separately.

2. With the exception of paragraph S5.3.3(b), the amendments to Standard No. 105 at issue here entered into effect on March 1, 1999. The compliance date of the requirements of S5.3.3(b) was extended until September 1, 1999 by Interim Final Rule, Request for Comments dated February 26, 1999 (64 FR 9446).

ID: 18898-1.pja

Ms. Erika Z. Jones
Mayer, Brown & Platt
2000 Pennsylvania Ave., NW
Washington, DC 20006-1882

Dear Ms. Jones:

This responds to your inquiry on behalf of Red River Manufacturing, Inc. (Red River) regarding Federal Motor Vehicle Safety Standard No. 224, Rear impact protection, as applied to the manufacturer's retractable horizontal discharge trailers.

Red River received a one-year temporary exemption from Federal Motor Vehicle Safety Standard No. 224, Rear impact protection, for its trailers, which expires on April 1, 1999. The manufacturer has been working on a retractable guard design. However, the design is not "automatic." You ask whether the National Highway Traffic Safety Administration (NHTSA) would test the vehicle when the guard was in the retracted, or "up" position. You also ask whether, and in what sense, the deployment to a retractable rear impact guards would have to be automatic.

As you know, it has been NHTSA's longstanding policy to require vehicles to comply with all applicable safety standards in all configurations in which the vehicle is likely to be used while in transit. A vehicle traveling on the road with a guard in the retracted position is virtually the same as a vehicle with no guard at all. A passenger vehicle colliding with the rear of such a trailer or semitrailer would have nothing to prevent it from riding under the rear of the trailer or semitrailer until the trailer rear intrudes into the passenger compartment. This is a special concern with horizontal discharge trailers because they typically have a belt pulley that projects rearward from the rear of the trailer bed, which could intrude into a colliding vehicle's passenger compartment.

The answer to your question is thus grounded in part on the guard configurations that are likely to be used while the vehicle is on the road. Two factors have been brought to our attention concerning Red River's guard. The first factor, and the one of primary importance, relates to the in-use regulations that apply to vehicles such as those made by Red River. The Chief Counsel's Office of the Federal Highway Administration (FHWA) has informed us that operating a trailer or semitrailer while the guard is retracted would violate 49 C.F.R. 393.86, the FHWA regulation that requires maintenance of the guard. Although section 393.86 is silent on the subject of retractable rear end guards, FHWA concludes guards that are retracted while the vehicle is in motion do not fulfill the purpose of that section, which is to ensure protection against rear underride. FHWA counsel states that interstate motor carriers are required to comply with section 393.86 whenever they are operating on the highways and that a vehicle traveling with its retractable guard in the retracted position could be placed out of service pursuant to 49 C.F.R. 396.11(c), at the discretion of the State authorities.

The second factor is that, in a November 4, 1998, meeting with Paul Atelsek of my staff and other agency personnel, you explained that, while it is physically possible for the operator to operate the trailer with the guard in the retracted position, Red River's operating instructions would stress that the guard must be moved into the deployed position every time the vehicle is prepared for transit.

Because (a) placing the vehicle in transit without deploying the guard is against FHWA regulations, and (b) the vehicle operating instructions will specify that the guard be deployed whenever the vehicle is in transit, NHTSA concludes that it is unlikely that trailers with retractable guards will be on the road with the guard in the retracted configuration.

Accordingly, for vehicles with operating instructions that specify that the guard must be deployed when the vehicle is in transit, and that are required by FHWA regulations to be operated with guard deployed, when conducting compliance testing on these vehicles, NHTSA will place the guard in whatever position or positions the manufacturer designates in the vehicle operating instructions for the guard while the vehicle is in transit. If the vehicle manufacturer does not provide operating instructions with guidance on guard positioning, then NHTSA will evaluate compliance in any position, including the retracted position.

As you noted in your letter, this office issued a May 25, 1998, letter to TarasPort Trailers, Inc. noting that their vehicle did not meet the definition of an excluded wheels-back vehicle because it was designed to be operated with rear extenders projecting more than 12 inches behind the rear wheels. TarasPort is in a different situation, because its vehicle is designed to be operated with the extenders out. This interpretation does not affect TarasPort's interpretation, or other interpretations in which the vehicle is designed to travel either in an excluded configuration or in a non-excluded configuration.

If you have any further questions, please feel free to contact Paul Atelsek of my staff at this address or by telephone at (202) 366-2992.

Sincerely,
Frank Seales, Jr.
Chief Counsel
ref:222
d.3/4/99

ID: 1889y

Mr. Sadato Kadoya
Manager, Safety Engineering
Mazda (North America), Inc.
Research & Development Center
1203 Woodbridge Avenue
Ann Arbor, MI 48105

Dear Mr. Kadoya:

This is to provide you with a clarification of our letter to you dated November 3, l988, based upon your telephone conversation with Taylor Vinson of this Office.

Our letter advised you that Standard No. l08 did not preclude the use of replaceable bulb headlamps with adjustable reflectors. In reply, you have cited two provisions of the standard which appear in conflict with this interpretation. With respect to a headlamp equipped with one or two HBl light sources, S4.1.1.36(e)(l) states that "There shall be no mechanism that allows adjustment of an individual [HBl] or adjustment of reflector aim with two [HBls]." To similar effect with respect to HB3 and HB4 light sources is S4.1.1.36(f)(l). Standard No. l08 has been amended effective June 8, l989, and the corresponding requirements are now S7.5(d)(l) and (e)(l). Each has been revised to state "There shall be no mechanism that allows adjustment of an individual light source, or, if there are two light sources, independent adjustment of each reflector."

We believe that the revised wording of the new sections clearly allow the adjustment of single reflectors in single light source replaceable bulb headlamps, and dual reflectors in dual-light source replaceable bulb headlamps, provided that the reflectors are not capable of independent adjustment. Further, new S7.7.2.2 specifically addresses how moveable reflectors must operate.

The intent of these sections is to prohibit headlamp designs in which the bulb alone is adjusted to aim the headlamp since this is contrary to mechanical aim requirements, or, where there is more than one reflector in a headlamp, designs in which each reflector may be adjusted independently, since this is also contrary to achieving precise mechanical aim.

Thank you for bringing this matter to our attention.

Sincerely,

Stephen P. Wood Acting Chief Counsel

/ ref:l08 d:7/l0/89

ID: 18911.ztv

Mr. Bill Carpenter, Jr.
The Carpenter Group
514 Chestnut Street
Pacific Grove, CA 93950-3916

Dear Mr. Carpenter:

This is further reply to your letter of August 3, 1998, in which you submitted a request for an interpretation, subject to a claim of confidentiality. This Office informed you on October 13, that your request was granted subject to the exceptions noted therein.

Your company has developed an automotive aftermarket "security accessory" that "provides a highly visual reference for a vehicle's audible alarm device." You wish to ensure that the device does not violate any Federal safety requirements. When the audible alarm device is operating, your device provides a visual signal consisting of "a series of bright white flashes provided by an oscillating xenon strobe circuit." The unit is mounted inside the vehicle, permanently attached to the windshield and/or back window (recommended mounting location is "centered left-to-right at the highest possible point"). The unit will not operate when the ignition is on or when the vehicle is moving under its own power.

The manufacture and sale of this accessory is not subject to any Federal motor vehicle safety standard. However, the accessory is considered "motor vehicle equipment," and in the event that either its manufacturer or this agency determines that it incorporates a safety-related defect, the manufacturer must notify and remedy according to Federal law.

The installation of the accessory has the theoretical potential of affecting compliance with Federal Motor Vehicle Safety Standard No. 111 Rearview Mirrors. This standard specifies a field of view of a level road surface that the inside rearview mirror must provide. Mounting the accessory at a location below the recommended "highest possible point" could compromise the view of the road surface, resulting in a noncompliance with the field of view requirements. If the vehicle as originally manufactured or sold fails to meet the field of view requirement, its manufacturer or dealer must provide an outside rearview mirror on the passenger side of the vehicle. We believe that virtually all new motor vehicles are now equipped with a passenger side rearview mirror as standard equipment, and that a vehicle would continue to conform with Standard No. 111 even if the field of view of the interior rearview mirror was compromised by mounting the accessory at other than the "highest possible point."

If you have any questions, you may call Taylor Vinson of this Office (202-366-5263).

Sincerely,
Frank Seales, Jr.
Chief Counsel
ref:111
d.11/20/98

ID: 18912.ztv

Mr. Bill Cox
President
Monte Carlo Minis Limited, Inc.
2011 Pleasant Hill Church Road
Shelby, NC 28152

Dear Mr. Cox:

After you received our letter of September 29, 1998, you faxed Taylor Vinson of this Office several additional questions on October 6, 7, and 9.

You previously informed us that you were building Minis for export to Japan. On October 6 you asked "Do you want copies of the export shipping documents for proof that the new Minis are not being sold in the USA?" We appreciate your offer, but the export shipping documents would prove only that those particular Minis were not being sold in the United States. The documents would not cover any Minis that were not being exported.

You also asked "We assume that for compliance in the USA the rebuilt Minis have to be a rolling chassis, is this correct." In a second fax on the 6^th you explained that "A rolling chassis is one that rolls by itself and stops with brakes. It also has steering rack, brakes, engine and transmission and can be driven." We are not sure what your question is. As I explained on September 29:

"the agency's opinions over the years have been premised upon the fact situation of a vehicle in use being modified to incorporate a new body on its original chassis and one which retained its original title. We have said that the resulting vehicle would not be considered a new motor vehicle subject to the FMVSS."

You seem to be asking "We assume that, to excuse compliance in the USA, the rebuilt Minis have to use an original chassis with steering rack, brakes, engine and transmission." That is essentially correct. The vehicle must also retain its original title, i.e., must continue to be registered with its original model year designation.

You also asked "Why can the tires not be replaced [if they have] DOT markings?" We think you mean to ask whether a rolling chassis whose tires have DOT markings needs to have new tires when a new body is placed on the chassis. If the vehicle that results when a new body is placed on a rolling chassis is not considered a new vehicle that must comply with the Federal motor vehicle safety standards that apply to new vehicles, then it need not have new tires but may retain its old ones.

Your October 7 fax is the first indication we have had that you intend to rebuild Minis for the American market. You ask:

"If we retain the rear brakes, drums, can we upgrade to 8.4 discs in the front, which will greatly help stopping distance, but this would require upgrade to 12 inch wheels and tires for the 8.4 inch discs will not fit over the 10 inch rims."

If your "rebuilt" Mini is a "new" vehicle, it must conform with Federal Motor Vehicle Safety Standard No. 105, "Hydraulic Brake Systems," no matter how it is designed, as well as with all other applicable Federal motor vehicle safety standards.

Finally, on October 9 you faxed us asking whether a statement had changed that was made to you in a letter of March 24, 1997, from this Office. That statement was "Because vehicles more than 25 years old are exempt from compliance with Federal motor vehicle safety standards, you are free to make modifications without violating our regulations." This remark was made with reference to pre-1973 Minis that you import. This remains true: a motor vehicle that is at least 25 years old at the time of importation, and which was not originally manufactured for the U.S. market, is not required to be brought into conformance with the Federal motor vehicle safety standards.

Sincerely,
Frank Seales, Jr.
Chief Counsel
ref:571
d.12/29/98