ID: nht91-1.18

DATE: January 14, 1991

FROM: Paul Jackson Rice -- Chief Counsel, NHTSA

TO: Aggie Szilagyi -- Esquire, Senior Counsel, New Jersey State Legislature, Office of Legislative Services

TITLE: None

ATTACHMT: Attached to letter dated 9-18-89 from Aggie Szilagyi to Stephen P. Wood (OCC 3949)

TEXT:

Thank you for your letter on behalf of Senator Ronald L. Rice requesting the views of the National Highway Traffic Safety Administration (NHTSA) on whether the Motor Vehicle Theft Law Enforcement Act of 1984 (Theft Act)(15 U.S.C. 2021 et seq.) would preempt provisions of New Jersey Senate Bill (SB) 3434. I apologize for the delay in this response. It is my understanding that SB 3434 has been reintroduced in this session of the legislature as SB 876. For the reasons described below, it is our opinion that the provisions in the bill for the mandatory antitheft devices on certain car lines would be preempted by the Theft Act.

We understand that SB 876 would prohibit the sale or lease of a passenger automobile that is at or over the "estimated median manufacturer's suggested retail price for all passenger automobiles" unless it is equipped with a "passive anti-theft device" that "automatically activates upon turning off the motor of a vehicle and causes an alarm or ignition cut-off to engage." Violation of this provision would be punishable by a fine.

Although the Theft Act contains an explicit preemption provision (15 U.S.C. 2031) for parts marking systems which would not be triggered by SB 876, the bill would nonetheless create an obstacle to the accomplishment and execution of the overall Congressional objectives embodied in the Theft Act and would therefore be preempted.

The objective of the Theft Act was to establish a least-cost antitheft system, with a parts-marking system being the system of choice. The congress specified a $15-per-car limit for the cost of the system (15 U.S.C. 2024(a)), and made it clear that the alternative of installing antitheft devices was to be at the petition of the manufacturer, under procedures designed to ensure the effectiveness of such devices (15 U.S.C. 2025).

SB 876 would not only have the effect of requiring the installation of antitheft devices in vehicles that are marked under the Theft Act, thereby imposing a greater cost on the owners, but could require a vehicle with an antitheft device approved under the Theft Act to be equipped with a second antitheft device if the first device did not operate in the manner prescribed by SB 876. These effects would prevent the accomplishment of the Theft Act's objectives, and would thus satisfy the conditions for general preemption found by the supreme court in Hines V. Davidowitz, 312 U.S. 52 (1941) and followed in subsequent cases (Schneidewind v. ANR Pipeline Co., 485 U.S. 293 (1988); Northwest Central Pipeline Corporation v. State Corporation commission of Kansas, (109 S. Ct. 1262 (1989)).

I hope this information is helpful. If you have any further questions or need any additional information about this topic, please feel free to contact Dorothy Nakama of my staff at this address or by telephone at (202) 366-2992.

ID: nht91-1.19

DATE: January 14, 1991

FROM: Paul Jackson Rice -- Chief Counsel, NHTSA

TO: Chino O'Hara -- Minority Co-ordinator, Del Mar Manufacturing Company

TITLE: None

ATTACHMT: Attached to letter dated 12-11-90 from Chino O'Hara to Office of Chief Counsel, NHTSA (OCC 5539)

TEXT:

This responds to your letter of December 11, 1990 in which you ask whether your product "Husky Brake Anti-Squeek" needs approval of the Department of Transportation (DOT). An enclosure to your letter indicates that the product is intended for application on the pad surface of motor vehicle disc brakes to "stop brake squeeking" and to "produce a surface that gives better braking by acting as a "lubricant to the friction material." I am pleased to have this opportunity to explain our law and regulations for you.

The National Highway Traffic Safety Administration (NHTSA) (part of DOT) does not certify or approve motor vehicles or motor vehicle equipment for compliance with the Federal Motor Vehicle Safety Standards. Instead, the National Traffic and Motor Vehicle Safety Act (the Safety Act; 15 U.S.C. 1381 et seq.) establishes a "self-certification" process under which each manufacturer is responsible for certifying that every one of its products complies with all applicable safety standards. This agency periodically tests vehicles and items of motor vehicle equipment for compliance with the safety standards and also investigates other alleged defects related to motor vehicle safety.

There is currently no Federal motor vehicle safety standard that is directly applicable to the product you wish to manufacture and sell. However, there are other requirements that may affect this product. First, manufacturers of motor vehicle equipment are subject to the requirements in sections 151-159 of the Safety Act (15 U.S.C. 1411-1419) concerning the recall and remedy of products with defects related to motor vehicle safety.

Section 102(4) of the Safety Act (15 U.S.C. 1391(4) defines, in relevant part, the term "motor vehicle equipment" as:

any system, part, or component of a motor vehicle as originally manufactured or any similar part or component manufactured or sold for replacement or improvement of such system, part, or component or as any accessory, or addition to the motor vehicle . . .

If the "Husky Brake Anti-Squeek" is manufactured and sold for the improvement of motor vehicle brake systems, it would be considered "motor vehicle equipment" within the meaning of the Safety Act. If either the equipment manufacturer or this agency were to determine that your product contained such a defect, the manufacturer would have to notify purchasers of the defect and remedy the problem free of charge to the purchasers.

Second, use of this product could be affected by section 108(a)(2)(A) of the Safety Act (15 U.S.C. 1397(a)(2)(A)). That section prohibits manufacturers, distributors, dealers, or repair shops from knowingly "rendering inoperative" devices or elements of design that were installed in a motor vehicle to comply with the Federal Motor Vehicle Safety Standards. To avoid a "rendering inoperative" violation, the above-named parties should review the application instructions for your product and determine if installing the product following those instructions would result in the vehicle no longer complying with the requirements of the safety standards. The most relevant safety standard appears to be Standard No. 105, Hydraulic Brake Systems. That standard applies to new motor vehicles.

I hope that this information has been helpful. For your information, I am enclosing an information sheet for new manufacturers of motor vehicles and motor vehicle equipment and information on how to obtain copies of motor vehicle safety standards. Please feel free to contact us if you have any further questions.

Attachment

Information sheet from the NHTSA entitled Information for New Manufacturers of Motor Vehicles and Motor Vehicle Equipment, dated September 1985. (Text omitted)

ID: nht91-1.2

DATE: 01/01/91 EST

FROM: Andy Tanner -- Glas-Weld of Jacksonville, Inc.

TO: Paul Jackson Rice -- Chief Counsel, NHTSA

TITLE: Re Subject: Labeling guidelines

ATTACHMT: Attached to letter dated 4-3-91 from Paul Jackson Rice to Andy Tanner (A37; Std. 205; VSA Sec. 108(a)(2)(A))

TEXT:

Upon the recommendation of Mr. Clark Harper, I would appreciate an official answer on a few labeling questions. Our company restores marred bus windows and renders them in like new condition in accordance with the Z 26.1 specifications.

Most of these windows were manufactured of acrylic materials produced by such companies as E I Dupont. For the sake of this example, the windows formed from Dupont product would carry the registered trade name "Lucite". As our windows are remanufactured the following questions arise:

a. Do we have to indicate the materials manufacturer or his trade name or is a generic designation which would exclude the origination information acceptable?

b. The windows, prior to restoration, conformed to the Z 26.1 specification. In our operation little material is removed from the surface and the windows retain the conformity with the original requirements as regards strength. The surface is then processed to insure good environmental properties. If the windows are basically unchanged, do we keep the original labeling or must unaltered properties be restated in our marking?

Your guidance would be greatly appreciated, as I wish to provide the proper information to both my customers and the involved Federal authorities.

Please do not hesitate to contact us, if I have failed to make any question adaquately clear.

ID: nht91-1.20

DATE: January 14, 1991

FROM: Paul Jackson Rice -- Chief Counsel, NHTSA

TO: Rebecca Flint -- Polymeric Systems, Inc.

TITLE: None

ATTACHMT: Attached to letter dated 8-30-90 from Rebecca Flint to Paul Rice (OCC 5167)

TEXT:

This responds to your letter asking whether this agency must approve your product, an epoxy putty that could be used to repair leaking gas tanks. You said a customer would like to market your product "for fleet (buses and truck) maintenance." The answer is no, the National Highway Traffic Safety Administration (NHTSA) does not approve or certify products.

By way of background, NHTSA is authorized to issue Federal Motor Vehicle Safety Standards (FMVSS's) applying to the manufacture of new motor vehicles and items of motor vehicle equipment. NHTSA is not authorized to certify or approve motor vehicles or motor vehicle equipment for compliance with our FMVSS's. Instead, under the National Traffic and Motor Vehicle Safety Act (copy enclosed), each manufacturer of a motor vehicle or item of motor vehicle equipment is responsible for certifying that its products meet all of our applicable safety standards. This process requires each manufacturer to determine in the exercise of due care that its products meet all applicable requirements. NHTSA regularly tests vehicles and equipment for compliance with the FMVSS's as part of its enforcement program. In addition, the agency also investigates safety-related defects in motor vehicles and items of motor vehicle equipment.

There isn't any FMVSS that directly applies to repair putty for fuel tanks. Federal Motor Vehicle Safety Standard 301, Fuel System Integrity, sets performance requirements for new vehicles with a gross vehicle weight rating of 10,000 pounds or less and school buses. The standard does not apply to products sold to repair fuel tanks on vehicles already in use.

Repair of a damaged fuel tank in a new vehicle would be affected by the statutory requirement that the vehicle, when first sold to a consumer, must comply with FMVSS 301. If a new vehicle's fuel tank is repaired prior to such sale, the person making the repairs would be considered a vehicle alterer under our regulation on certification (Part 567, copy enclosed). As an alterer, the person must certify that the fuel system, as altered, continues to comply with all of the applicable requirements of Standard 301.

After a vehicle is first sold to a consumer, repairs to a vehicle are potentially affected by section 108(a)(2)(A) of the vehicle safety Act. That section prohibits manufacturers, distributors, dealers, or motor vehicle repair businesses from knowingly rendering inoperative any device or element of design installed in compliance with a FMVSS. However, the agency does not view that prohibition as applying to the repair of a fuel tank which has been previously installed in a vehicle and damaged in use. The agency considers the event that damaged the fuel tank and not any

subsequent action by a person repairing the damaged tank in a used vehicle as the event that "rendered inoperative" the compliance of the fuel tank with the standard. Thus, a person in one of the aforementioned categories may use the putty to repair a damaged fuel tank on a used vehicle without regard to the render inoperative prohibition. Of course, however, NHTSA urges all persons repairing motor vehicles to ensure that the repair is done safely.

The prohibition of section 108(a)(2)(A) does not apply to individual vehicle owners who alter their own vehicles. Thus, under our require- ments, individual owners may use the repair putty regardless of its effect on the performance of fuel tanks. However, NHTSA encourages vehicle owners not to tamper with vehicle safety equipment if the modification would degrade the safety of the vehicle.

An issue raised by your inquiry is whether the putty is "motor vehicle equipment under the Vehicle Safety Act. Manufacturers of motor vehicle equipment are subject to the requirements in sections 151-159 of the Safety Act concerning the recall and remedy of products with defects relating to motor vehicle safety. As discussed below, we believe the putty is not motor vehicle equipment.

Section 103(4) of the Act defines, in relevant part, the term "motor vehicle equipment" as:

any system, part, or component of a motor vehicle as originally manufactured or any similar part or component manufactured or sold for replacement or improvement of such system, part, or component or as any ACCESSORY, OR ADDITION TO THE MOTOR VEHICLE . . . (emphasis added).

In determining whether an item of equipment is considered an "accessory . . . to the motor vehicle," NHTSA applies not only the relevant statutory language, but also two criteria. The first criterion is whether a substantial portion of the expected uses of the item are related to the operation or maintenance of motor vehicles. We determine the expected uses by considering product advertising, product labeling, and the type of store that retails the product, as well as available information about the actual use of the product. The second criterion is whether the product is intended to be used principally by ordinary users of motor vehicles (e.g., items normally used by professional vehicle repair and maintenance personnel would not qualify). If the product satisfies both criteria, the product is considered to be an "accessory" and thus is subject to the provisions of the Safety Act.

Applying these criteria to your inquiry, the first criterion appears to be satisfied because a substantial portion of the expected uses of the putty is related to the operation or maintenance of motor vehicles. The second criterion, however, does not appear to be satisfied. In a December 21, 1990 telephone conversation with Ms. Fujita of my staff, you stated that the putty would be sold to professional mechanics only. Since your product is not intended for use by ordinary vehicle users, the putty is not considered to be motor vehicle equipment.

Our sister agency in the Department, the Federal Highway Administration (FHWA), has operational and equipment requirements for commercial vehicles used in interstate commerce. We will forward a copy of your letter to the FHWA for information about those requirements.

I hope this information is helpful.

ID: nht91-1.21

DATE: January 15, 1991

FROM: Paul Jackson Rice -- Chief Counsel, NHTSA

TO: Carol C. Verenes -- District Transportation Supervisor, Aiken County Public Schools

TITLE: None

ATTACHMT: Attached to letter dated 9-7-90 to Joseph J. Levin, Jr. from Carol C. Verenes (OCC-5226)

TEXT:

This responds to your letter of September 7, 1990 requesting "written correspondence relative to the U.S. Department of Transportation, National Highway Traffic Safety Administration, adopted safety standards effective April 1, 1977, which applies to vans transporting school children." Additionally, you requested "information pertaining to Federal Motor Vehicle Safety Standards No. 220, 221, and 222" because your district is considering modifying vans to transport school children.

By telephone conversation with Mary Versailles of my staff on September 28, 1990, you stated that your school district has stopped using its 12-15 passenger vans to transport school children, because you had been informed that such use violated federal law. You requested information on what needed to be done to modify your vans to comply with Federal school bus regulations. You also asked if a dealer who had sold your school district new vans which did not comply with school bus regulations would be required to modify the vans or replace them with complying vans.

I am pleased to have this opportunity to clarify the operation of Federal law as it applies to school buses. Federal law regulates the manufacture and sale of new school buses. The National Highway Traffic Safety Administration (NHTSA) defines "school bus" as a motor vehicle designed for carrying 11 or more persons, including a driver, and sold for transporting students to and from school or school-related events. Note that in determining whether a vehicle is a school bus, one must consider both the vehicle's seating capacity, and its intended use. Thus, under federal law, a 12-15 passenger van is considered a school bus if its intended use is to transport school children.

NHTSA has issued Federal motor vehicle safety standards applicable to all new school buses. It is a violation of Federal law for any person to sell as a school bus any new vehicle that does not comply with all school bus safety standards. On the other hand, without violating any provision of Federal law, a school district may use a vehicle to transport school children, even if the vehicle does not comply with Federal school bus regulations. This is so because the individual States have authority over the use of vehicles. Therefore, to determine whether your school district may use noncomplying vans to transport school children, you must look to state law. In addition, using noncomplying vans as a school bus could result in increased liability in the event of an accident. You might want to consult your attorney and insurance company to discuss this matter.

Your first question asked what must be done to bring your vans into

compliance as a school bus. Again, I must emphasize that there is no regulation under Federal law requiring your school district to retrofit your vans to comply with federal regulations. However, the following is a list of all Federal motor vehicle safety standards that include requirements for school buses:

Standards No. 101 through 104; Standard No. 105 (school buses with hydraulic service brake systems); Standards No. 106 through 108; Standards No. 111 through 113; Standard No. 115; Standard No. 116 (school buses with hydraulic service brake systems); Standards No. 119 and 120; Standard No. 121 (school buses with air brake systems); Standard No. 124; Standards No. 201 through 204 (school buses with GVWR of 10,000 pounds or less); Standard No. 205; Standards No. 207 through 210; Standard No. 212 (school buses with GVWR of 10,000 pounds or less); Standard No. 217; Standard No. 219 (school buses with GVWR of 10,000 pounds or less); Standard No. 220; Standard No. 221 (school buses with GVWR greater than 10,000 pounds); Standard No. 222; Standards No. 301 and 302.

Some of the standards which have unique requirements for school bus vehicles include, but are not necessarily limited to, Standards No. 105, 108, 111, 217, and 301; other standards (220, 221, and 222) are applicable only to school bus vehicles. Modification of the vehicles to comply with Standards No, 220 and 222 will be difficult and require recertification. The Federal motor vehicle safety standards are contained in Title 49 of the Code Of Federal Regulations (CFR), Part 571. You may find a copy of 49 CFR Part 571 at a Federal Depository Library in your State. If you so choose, you may purchase a copy of the volume of Title 49 which includes Part 571 from the United States Printing Office (GPO), Washington, D.C., 20402, (202) 783-3238.

Your second question asked whether the sale between the dealership and the school could be dissolved if you determined that any purchases of new vans did not comply with the regulations for school buses. While we have no regulations which void or "dissolve" sales of noncomplying motor vehicles, the school might be able to contact the dealership that sold the noncomplying school buses and arrange to have the vehicles repurchased. In addition, if you believe that you had been sold noncomplying vehicles, and that the dealer knew of your intended use, the school should contact NHTSA's Office of Vehicle Safety Compliance, at the address given above, and inform them of the apparent violation of federal law. In the past, many dealers who have been notified by NHTSA of the illegality of selling noncomplying vans as school vehicles repurchased the vehicles that were sold in violation of the law. However, these instances involved essentially new vehicles. Section 154(a)(2)(A)(iii) of the Safety Act specifies the repurchase remedy as, "the purchase price of such motor

vehicle in full, less a reasonable allowance for depreciation" (emphasis added). Thus, it may be more cost efficient for the school district to use these vans for other purposes within the district or transfer them to other county functions. For future vehicle purchases, it may be advisable to inform dealers specifically that the vehicles will be used for transporting school children.

I hope you find this information helpful. If you have further questions, please contact Mary Versailles of my staff at this address or by telephone at (202) 366-2992.

ID: nht91-1.22

DATE: January 15, 1991

FROM: Paul Jackson Rice -- Chief Counsel, NHTSA

TO: Kotaro Yakushiji -- Vice President, Emissions & Safety Technology, Mazda Research & Development of North America, Inc.

TITLE: None

ATTACHMT: Attached to letter dated 11-30-90 to Paul Jackson Rice from Kotaro Yakushiji (OCC-5508)

TEXT:

This responds to your letter of November 30, 1990 in which you request an interpretation of Standard No. 216, Roof Crush Resistance-Passenger Cars. Mazda requests an interpretation of the proper application and orientation of the test block when testing vehicles equipped with roof mounted accessories. Specifically, Mazda asks about a vehicle with a sunroof wind deflector. The deflector is constructed of plastic material and is mounted at the wind screen header. You state that, for practical purposes, the wind deflector is not removable during use but can be removed for testing. You further state that the wind deflector neither contributes to nor detracts from roof strength.

You believe that there are three possible test conditions. The first condition would conduct the test with the wind deflector in place. The second condition would conduct the test with the wind deflector removed and with the contact point greater than ten inches from the forward most point of the longitudinal centerline. The third condition would conduct the test with the wind deflector removed and with the contact point positioned according to section S6.2(d) of Standard No. 216.

We have concluded that it is appropriate to conduct the roof crush test with the wind deflector removed. We have reached this conclusion because the purpose of the test is to measure the strength of the roof, not the strength of roof mounted accessories. Further, conducting the test with the wind deflector in place could influence the positioning of the test device.

We have concluded that the third condition, rather than the second condition, is appropriate because the contact point in the third condition is positioned according to section S6.2(d) of the standard. As we stated in a prior interpretation letter (letter of October 3, 1980 to William Blythe), the agency intends to adhere to the ten inch dimension specified in section S6.2(d) regardless of roof configuration.

I hope that this has been helpful. If you have any further questions, please contact John Rigby of this office at 202-366-2992.

ID: nht91-1.23

DATE: January 15, 1991

FROM: Paul Jackson Rice -- Chief Counsel, NHTSA

TO: John K. Roberts -- Vice President, Muth Advanced Technologies

TITLE: None

ATTACHMT: Attached to letter dated 11-29-90 to Richard Van Iderstine from John K. Roberts (OCC-5511)

TEXT:

This responds to your letter of November 29, 1990, to Richard Van Iderstine of this agency. You are developing a "Stop Turn Mirror" (STM) which you intend to be used "in combination with (or possibly in place of) center high-mounted stop lamps (CHMSL's). The STM is so designed that it appears as a mirror to a vehicle operator, but as a stop and turn signal indication system to the operator of a following vehicle.

You have not provided us with a picture of the STM, and we are unable to tell from your letter and description sheet whether the STM is intended to be mounted as an interior rear view mirror, or as an exterior one. As a surrogate for the CHMSL, it would appear to be intended for installation as an interior rear view mirror. However, as a stop and turn signal system, the STM would appear more appropriate as two exterior mirrors mounted on either side of the vehicle. Nevertheless, we shall try to answer your questions on the basis of the information available to us.

Your first question is:

"(1) If the STM satisfies the current explicit requirements of FMVSS 111 and 108, is there further NHTSA approval we should seek before fielding the device?"

NHTSA does not "approve" or "disapprove" items of motor vehicle equipment such as the STM. It will advise whether the equipment is permitted or not permitted by Federal laws, standards, or other regulations. If the equipment is permitted, then it may be manufactured and sold. However, it is the inquirer's responsibility to determine if there are any State and local restrictions on use of the equipment.

For the reasons expressed below, we have serious reservations whether the STM could meet the requirements of Standard No. 108. There is no requirement that a CHMSL be mounted on the rear of a vehicle or in the rear window. STM theoretically could fulfill the requirements for CHMSL's if combined with an interior rear view mirror conventionally placed in the center of the windshield area. In this location, it would appear to be mounted on the vertical centerline of the vehicle as seen from the rear, as the standard requires. The STM will not be perceived by the driver as anything but a mirror; however it must also fulfill the requirement that light from it falling on the rear glazing not reflect back into the mirror, or, in the words of Standard No. 108 that means have been "provided to minimize reflections from the light of the lamp that might be visible to the driver when viewed directly or indirectly in the rear view mirror." Most importantly, the STM must fulfill the photometric requirements and visibility requirements of center high-mounted stop

lamps. Compliance with these requirements is determined with the lamp mounted on or in the vehicle. Because of the different designs of back windows and adjacent "C" pillars in cars, and the distance of the STM from the back window, we believe that compliance with all applicable requirements would be difficult, if not impossible, to achieve.

Standard No. 108 does prohibit the physical combination of the required CHMSL with any other lamp or reflective device. A mirror is not a "reflective device" for purposes of Standard No. 108. Thus the question would be whether the turn signal functions of the STM are clearly separated from the stop function so that the question does not arise as to whether they are combined.

If the STM iS intended to be mounted as one or both exterior rear view mirrors it would not meet the location requirement, and could not be used as a substitute for the required CHMSL. Under Standard No. 108 it would be permissible as supplementary lighting equipment as long as it did not impair the effectiveness of lighting equipment that the standard requires. In this instance, in its role as a supplementary stop/turn signal lamp system, we do not consider that the STM would impair the effectiveness of the original stop/turn signal lamp system.

"(2) Would it be reasonable for us to apply for a variance or to seek a change in FMVSS 108, if the STM doesn't meet the letter of FMVSS 106 in certain applications, but demonstrably meets or exceeds the intent of the standard."

"Variances", or exemptions from one or more requirements of a Federal motor vehicle safety standard are only granted to manufacturers of motor vehicles. We have no authority to exempt an equipment manufacturer.

As for seeking a change in Standard No. 108, while any person may file a petition for rulemaking to change a standard, I have no reason to believe that the agency would look favorably on allowing the CHMSL to be combined with a turn signal lamp, or require use of the STM as standard equipment in place of the present CHMSL.

"(3) Before a pickup truck standard is published, would it be possible to certify the STM as a compliant device and ensure that the wording of the new rule doesn't needlessly prohibit utilization of STM's?"

It is a legal impossibility to certify something as a compliant device before the requirements for that device have been formally adopted, and the effective date established for compliance. We anticipate the "pickup truck standard" as you call it will be published sometime in January 1991. If you find that it prohibits utilization of the STM you may file a petition for reconsideration of the rule with the agency within 30 days after its publication.

" (4) Is it possible that someone at NHTSA would like to see this thing or test it before we go too far in our development and larketing? It may be a useful development in vehicle safety devices with importance to industry and the public. It also may be a ready solution to the difficult issue of requiring CHMSL's on pick-up trucks. We would be happy to support

any such investigative effort by supplying a model, information, etc.

We appreciate but decline your offer. The agency is satisfied that its forthcoming rule achieves a reasonable solution to the issue of CHMSL's on pickup trucks. The agency's resources are limited, and must be deployed in areas where there is a reasonable possibility that a mandatory safety standard may result as a consequence of its investigative efforts. Given the facts that the STM addresses an area of safety that is already covered by the CHMSL, and that any safety benefits of the STM remain speculative while those of the CHMSL are well demonstrated, there is no reasonable possibility that the STM would become a mandatory requirement of this agency.

ID: nht91-1.24

DATE: January 15, 1991

FROM: Paul Jackson Rice -- Chief Counsel, NHTSA

TO: Michael L. Hayes

TITLE: None

ATTACHMT: Attached to letter dated 7-12-90 from Michael L. Hayes to General Curry, NHTSA; Also attached to letter dated 7-12-90 from Michael L. Hayes to James Gilkey (OCC 5046)

TEXT:

This responds to your letter to NHTSA's enforcement office and to your telephone conversations with Ms. Fujita of my staff, about the application of Safety Standard 213, Child Restraint Systems, to "transport incubators." Your letter and enclosures indicate that "transport incubator" refers to an incubator that is mounted on a collapsible stand with wheels. The incubator is typically used on an ambulance or helicopter to transfer a neonate from one medical facility to another, or between sites within a facility. The issue raised by your letter is whether Standard 213 applies to transport incubators.

We believe the answer is no, because a transport incubator is not an item of "motor vehicle equipment." Our agency has the authority under the National Traffic and Motor Vehicle Safety Act (copy enclosed) to regulate the manufacture and sale of new motor vehicles and items of motor vehicle equipment. Section 102(4) of the Safety Act defines, in relevant part, the term "motor vehicle equipment" as:

any system, part, or component of a motor vehicle as originally manufactured or any similar part or component manufactured or sold for replacement or improvement of such system, part, or component or as any accessory, or addition to the motor vehicle...

According to the manufacturer of the incubator, whom we contacted for information about the product, the incubator is sold to hospitals, and not to vehicle manufacturers for inclusion in new vehicles. Based on this information, a transport incubator is not a "system, part, or component of a motor vehicle as originally manufactured." Since there is no system, part or component similar to the incubator installed in or on a motor vehicle at the time of its delivery to the first purchaser and since there is no such system, part or component which is original equipment, the incubator is not sold as a replacement or improvement of original equipment.

The incubator also does not appear to be an "accessory . . . to the motor vehicle." In determining whether an item of equipment is considered an accessory, NHTSA applies two criteria. The first criterion is whether a substantial portion of the expected use of the item are related to the operation or maintenance of motor vehicles. We determine the expected use by considering product advertising, product labeling, and the type of store that retails the product, as well as available information about the actual use of the product. The second criterion is whether the product is intended to be used principally by ordinary users of motor vehicles. Items normally used by professional vehicle repair and maintenance

personnel would not meet this second criterion. If the product satisfies both criteria, the product is considered to be an "accessory" and thus is subject to the provisions of the Safety Act.

Applying these criteria to the incubator, we are uncertain whether a substantial portion of the exBpected use of the incubator is related to motor vehicle (ambulance) operation. We are unsure because we lack information about the extent of the non-motor vehicle uses of the incubator. However, regardless of our conclusion about the first criterion, we conclude that the incubator does not satisfy the second one (which is directed to the nature of the likely users of the product). The incubator would not be used by ordinary vehicle owners. Instead, the incubator is intended for use by professional medical personnel only. Since at least one of the criteria is not satisfied, the transport incubator is not an accessory.

The Food and Drug Administration has the authority to regulate medical "devices." We suggest that you address your concerns about transport incubators to that agency.

I hope this information is helpful.

ID: nht91-1.25

DATE: January 16, 1991

FROM: Paul Jackson Rice -- Chief Counsel, NHTSA

TO: Carol Zeitlow -- Manager, Engineering Services, Oshkosh Truck Corp.

TITLE: None

ATTACHMT: Attached to letter dated 12-21-90 from Carol Zeitlow to Taylor Vincon (Vinson) (OCC 5550)

TEXT:

This is in response to your letter of December 21, 1990, to Taylor Vinson of this office, in which you ask a question about Federal Motor Vehicle Safety Standard No. 108. You have also asked for confirmation of your understanding with Mr. Vinson with respect to three other aspects of motor vehicle safety regulations of the National Highway Traffic Safety Administration.

With respect to Standard No. 108, you believe that our letter to you of August 27, 1990, stated that "the hazard warning signal should always override the stop lamp signal when both are red in color." Mr. Vinson, by telephone on October 9, said that he believed that at some time previous the override feature had been at the option of the vehicle manufacturer. You have asked the date that Standard No. 108 changed, and "in which section of the regulations can I find the ruling."

Actually, our letter of August 27, 1990, did not state that the hazard warning signal should override the stop lamp signal. We explained that Standard No. 108 requires a turn signal lamp to override the stop lamps if the lamp optically combines stop and turn signals, and that because the hazard system operates through the turn signal lamps, the stop signal cannot be turned on in an optically combined lamp if the hazard system is in use. The specific wording of the regulatory requirement is "When a stop signal is optically combined with a turn signal, the circuit shall be such that the stop signal cannot be turned on in the turn signal which is flashing." You will find this in paragraph 4.2 of SAE Standard J586c Stop Lamps August 1970, and in paragraph 4.4 of SAE Standard J588e Turn Signal Lamps September 1970, both of which are incorporated by reference in Table I and Table III of Standard No. 108. And a vehicular hazard warning flasher is a device which causes all the required turn signal lamps to flash; see Definition in SAE Recommended Practice J945 Vehicular Hazard Warning Signal Flasher February 1966, also incorporated by reference.

We note that this regulatory requirement was not originally contained in Standard No. 108. The predecessor SAE Standards J586b June 1966 and SAE J588d June 1966 originally incorporated in Standard No. 108 did not include override language. Standard No. 108 was amended on January 5, 1976, to incorporate SAE J586c and SAE J588e, with an immediate effective date, but allowed compliance with the older standards until September 1, 1978 (41 FR 765). Thus, during the period January 5, 1976, to September 1, 1978, a manufacturer had the option of providing the override feature in a combination lamp in which the hazard and turn signal functions used the same circuit.

You have also asked whether a sun visor is required by the Federal motor

vehicle safety standards. The answer is no, if the vehicle is a truck, bus, or multipurpose passenger vehicle with a GVWR that exceeds 10,000 pounds. However, if the GVWR of those vehicles is 10,000 pounds or less, or if the vehicle is a passenger car, paragraph S3.4 of Standard No. 201 Occupant Protection in Interior Impact requires that a sun visor be provided for each front outboard designated seating position.

In addition, you asked whether any regulation specified the type or quantity of horns required on a motor vehicle. The answer is no. Standard No. 101 Controls and Displays does not require that any motor vehicle be equipped with a horn. However, if a horn is provided, it is subject to the requirements of the standard for horn control location, identification, and illumination.

Finally, you asked whether Standard No. 104 Windshield Wiping and Washing Systems contains "the percentage of area of the windshield that the windshield wiper must wipe", or specifies only the frequency of the wipers. Standard No. 104 does not specify wiped area percentages for windshield wiping systems on multipurpose passenger vehicles, trucks, or buses. However, it does specify percentages for passenger car systems, and it specifies the frequency for all motor vehicle windshield wiping systems.

I hope that this answers your questions.

ID: nht91-1.26

DATE: January 16, 1991

FROM: Marvin A. Leach, D.Ed. -- Regional Program Manager, NHTSA

TO: S.V. Kaaria

COPYEE: Kathleen DeMeter

TITLE: None

ATTACHMT: Attached to letter dated 1-3-91 from S.V. Kaaria to NHTSA; Also attached to letter dated 2-11-91 from Paul Jackson Rice to S.V. Kaaria (A37; Std. 108)

TEXT:

Thank you for your letter of January 3, 1991, seeking information about problems related to negotiating a settlement with auto manufacturers on a design you were involved in developing.

I am taking the liberty of forwarding your letter to:

Ms. Kathleen DeMeter General Law Division Office of the Chief Counsel National Highway Traffic Safety Administration 400 7th Street S.W., NCC30 Washington , D.C. 20590

I hope this will be of assistance toward the resolution of your inquiry.