ID: 09-000724 fortin.draft.dj.aug20

ID: 00946.ztv

James T. Pitts, Esq.
Venable, Baetjer, Howard & Civiletti, LLP
1201 New York Avenue, N.W., Suite 1000
Washington, D.C. 20005-3917

Dear Mr. Pitts:




This is in reply to your letter of October 1, 2002, to Stephen R. Kratzke, Associate Administrator for Rulemaking.You wrote on behalf of your client, TBC Corporation ("TBC"), whose Director of Engineering and Quality Assurance, L. M. Hardy, was notified by Claude Harris, Director of Crash Avoidance Standards, NHTSA, on September 4, 2002, that its petition for an inconsequentiality determination was moot.The basis for this conclusion was that all the noncomplying tires covered by the petition remained in the possession of the company, and had not been distributed or sold.You have asked us to reconsider our position on the basis of alternative arguments that you presented.

By way of background, paragraph S6.4 Treadwear indicators of 49 CFR 571.119, Motor Vehicle Safety Standard No. 119, "New Pneumatic Tires for Vehicles Other Than Passenger Cars," specifies that each tire to which the standard applies "shall have at least six treadwear indicators . . . ." TBC determined that certain of its tires had only five treadwear indicators.It then properly determined that this was a failure to comply with Standard No. 119, notified NHTSA as required by 49 CFR Part 573, and petitioned for a determination that the noncompliance was inconsequential to motor vehicle safety.As noted in the first paragraph, we considered the petition to be moot and further informed TBC that its noncompliant tires could not be legally sold (letter of Claude Harris, attached).

In your first argument, you analogized to a 1979 case involving Vespa of America Corporation which had failed to provide a turn signal indicator on its motorcycles.We concurred with the company's argument that the rapid flashing of the front turn signal lamps to indicate a failure of the rear turn signal lamps was a functional equivalent of a turn signal indicator which would indicate a failure in the turn signal system (letter of Chief Counsel Frank Berndt, March 16, 1979).You have asked us to make a similar decision with respect to TBC's noncompliance.

We have reviewed Mr. Berndt's letter.Significantly, Mr. Berndt stated that "we have determined that there is no failure to comply with the standard and your petition is moot." NHTSA's determination that there was no failure to comply with Standard No. 108 permitted Vespa to sell its complying motorcycles.With respect to TBC, we cannot make a determination that there was no failure to comply with Standard No. 119 on the basis of functional equivalence.The standard requires a minimum of six treadwear indicators.We cannot interpret this as meaning five treadwear indicators are the functional equivalent of "at least six treadwear indicators."

In the alternative, you have presented your interpretations of 49 U.S.C. Sections 30112, 30118, and 30120.You asserted that "there is nothing in Section 30118(d)" or Section 30120. . . that requires that there be 'owners, purchasers, and dealers' as a prerequisite to an inconsequentiality determination." You concluded that "it is clear that NHTSA can make an 'inconsequential to safety determination' at a time when the noncomplying equipment is still in the hands of the manufacturer."You next argued that "The ability of the manufacturers to then sell that equipment turns on the language in section 30112(b)(2)(A), which excludes certain persons and equipment from the prohibitions in section 30112(a) relating to the sale of non-complying equipment." Specifically, you asserted that subsection (b)(2)(A) excludes persons exercising reasonable care who had no reason to know that the equipment "does not comply." You argued that "The exclusion, written in the present tense, does not assume that any of the actions prohibited in subsection (a) have already taken place. Otherwise, the exclusion would reference the lack of knowledge regarding the noncompliance of the equipment at the time the equipment was imported or sold, i.e., a past action, and not a present condition."You concluded that "TBC imported the tires in questions (sic) and had no reason to know then of their noncompliance.The equipment does not comply with an applicable standard.The exclusion from the flat prohibition of sale is thus satisfied and the tires can be sold without penalty if, and only if, NHTSA determines that the noncompliance is inconsequential to safety."

The Motor Vehicle and School Bus Safety Amendments of 1974 amended the National Traffic and Motor Vehicle Safety Act of 1966 to add Section 157, Exemption for Inconsequential Defect or Failure to Comply (the Safety Act was recodified in 1994 and the provisions of Section 157 were divided between Section 30118(d), regarding notice, and Section 30120(h), regarding remedy.The 1974 Amendments required manufacturers of motor vehicles and motor vehicle equipment to remedy noncompliances and safety-related defects without charge.The obligation was absolute and Section 157 was added as a means of relieving manufacturers of the need to notify and remedy where noncompliances, such as those involving labels, and defects were inconsequential as they related to motor vehicle safety.The legislative history clearly indicates that this was the purpose of the inconsequentiality provisions:

This section [157] enables a manufacturer to apply to the Secretary for an exemption from the obligation to give notice with respect to, or to remedy, a motor vehicle or item of motor vehicle equipment, which contains a defect relating to motor vehicle safety or which fails to comply with an applicable Federal motor vehicle safety standard. * * * Your Committee believes that this provision is a reasonable corollary to the new statutory obligation for manufacturer to remedy without charge. [H. Rep. 93-1191. 93d Cong. 2d Sess. 31 (1974)]

We disagree with your analysis of Section 30112.Significantly, Section 157 referred only to relief from the notice and remedy provisions.It did not alter what is now Section 30112(a).Under Section 30112(a), sale of the noncomplying tires remains unlawful. We further read Section 30112 in context with Section 30165(a)(1).That section authorizes civil penalties for a person that violates Section 30112 (and other statutory provisions).TBC's importation of non-complying tires into the United States is a prima facie violation of Section 30112(a).However, if TBC can establish that, in the exercise of reasonable care, it did not know of the noncompliance at the time of importation, it will not be held to have violated Section 30112(a) for purposes of civil penalties.The existence of a reasonable care defense does not alter the fact that non-complying tires have been imported. If TBC then proceeds to engage in further violations of Section 30112(a), i.e., to "sell, offer for sale, introduce or deliver for introduction into interstate commerce" the defense of Section 30112(b)(2)(A) will no longer be available to it, and it will be liable for civil penalties under Section 30165.A determination that a noncompliance is inconsequential does not bring a noncompliant product into compliance, and such a determination is immaterial for purposes of knowing violations of Section 30112(a) (but an inconsequentiality determination would be relevant for the agency to weigh in determining the amount of a civil penalty for a violation of Section 30112(a), because the agency is required to consider the gravity of the violation that has occurred.See Section 30165(c)).

For NHTSA to relieve a manufacturer of the obligation to notify owners, purchasers, and dealers when none of the noncomplying products have been delivered to them would be a meaningless exercise; under these circumstances the obligation does not arise in the first instance and the petition is moot. Similarly, the obligation to remedy under Section 30120 arises only when notification of a defect is required under Section 30118(c), and if this obligation is moot, so is the obligation to remedy.

Sincerely,

Jacqueline Glassman
Chief Counsel

ref:591
d.11/1/02

ID: 05-007521drn-2

Mr. Eric J. Zerphy
Executive Vice President & COO
Solar Technology, Inc.
7620 Cetronia Road,
Allentown, PA 18106




Dear Mr. Zerphy:

This responds to your request for an interpretation concerning whether your companys "Agile Displays" products are "motor vehicles" making you subject to the requirements of the Transportation Recall Enhancement, Accountability, and Documentation (TREAD) Act to provide certain specified "early warning reporting" (EWR) information to NHTSA. You have enclosed literature describing the products, which are all portable, solar-powered LED displays that are intended to convey messages. Our response is provided below.

By way of background information, the National Highway Traffic Safety Administration (NHTSA) administers the laws under which the Federal motor vehicle safety standards (FMVSSs) are promulgated.

The information you provided, along with your website, indicate that your products fall into a number of categories, such as portable trailer mounted displays, vehicle mounted displays, and wall mounted displays.

You asked whether any of the Agile Displays products are considered "motor vehicles". 49 CFR Part 579, "Reporting of Information and Communications About Potential Defects" at Section 579.4(a) states that for purposes of EWR, "motor vehicle" is used as defined in 49 U.S.C. Section 30102. This statutory provision is also used to determine applicability of the FMVSSs. 49 U.S.C. Section 30102(a)(6) defines the term "motor vehicle" as follows:

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

We have issued a number of interpretations of "motor vehicle". Whether the agency considers your products with axles to be "motor vehicles" depends on their use. It is the agencys position that this statutory definition does not encompass mobile construction equipment, such as cranes and scrapers, which use the highway only to move between job sites and which typically spend extended periods of time at a single job site. In such cases, the on-highway use of the vehicle is merely incidental and is not the primary purpose for which the vehicle was manufactured. In contrast are instances where vehicles, such as dump trucks, frequently use the highway going to and from job sites, and stay at a job site for only a limited time. Such vehicles are considered motor vehicles for purposes of our statute, since the on-highway use is more than "incidental".

We have carefully reviewed the product literature included with your letter. We note that among the descriptions of the products are the following:"with trailer-mounted options, Agile Displays answers your needs for both permanent and temporary, easy-to-move signage;" "easy portability, Agile Displays mobile LED signage goes anywhere you need your message to go;" and "Easily relocated to any location where information is needed immediately". These descriptions indicate that the Agile Displays products on wheels are intended to regularly use the public roads.

Thus, it is our opinion that the following products are motor vehicles, specifically trailers: all Silent Messenger models; the Silent Messenger II; the Silent Messenger III; and the Silent Sentinel. The agency would consider the use of these products on the public roads to be a primary purpose, and not incidental. Since these products are motor vehicles, they would be subject to the FMVSSs. Each of these products would be considered a trailer, defined in NHTSAs regulations at 49 CFR Part 571.3 as:

[A] motor vehicle with or without motive power, designed for carrying persons or property and for being drawn by another motor vehicle.

I am enclosing an information package, "Requirements for Trailer Manufacturers" issued by NHTSAs Enforcement Office, which explains in some detail NHTSA regulations that apply to the manufacture of trailers.

In addition, as a manufacturer of motor vehicles, you would be required to submit identifying information on your company and its products to this agency in accordance with 49 CFR Part 566, Manufacturer Identification and vehicle identification number (VIN) deciphering information in accordance with 49 CFR Part 565, Vehicle Identification Number Requirements. You would also be required to certify that each trailer complies with all applicable FMVSSs. The certification procedure is set forth in 49 CFR Part 567, Certification.

I also note that the Vehicle Mount Arrow Boards and Message Signs appear to be items of motor vehicle equipment. The two-pronged test for whether a product is "motor vehicle equipment" is first, whether a substantial portion of its expected use is related to the operation or maintenance of motor vehicles and second, whether the product is intended to be used principally by ordinary users of motor vehicles.

Based on the product literature, it appears that a substantial portion of the expected use of the Vehicle Mount Arrow Boards and Message Signs is related to being placed on a motor vehicle. The product description includes: "Dimensions at base are designed to fit a wide variety of truck beds" and "Skid takes minimal space in truck bed, leaving room for cargo and tools". Photographs of the stand depict them as being exactly wide enough to fit into the beds of Ford F150 pick-up trucks.

Further, the advertising of the product focuses on ease of use - "quick programming" and "rapid, simple, one-person deployment and transportation". These statements lead us to conclude that the product is intended to be used principally by ordinary users of motor vehicles. For these reasons, we conclude that the Vehicle Mount Arrow Boards and Message Signs are motor vehicle equipment.

NHTSA has not issued any Federal motor vehicle safety standard that directly regulates the performance of products such as the Vehicle Mount Arrow Boards and Message Signs. Nevertheless, as a manufacturer of motor vehicle equipment, your company is subject to the requirements in Title 49 U.S.C. Sections 30118 30121 concerning the recall and remedy of products with defects related to motor vehicle safety. In the event that the manufacturer or NHTSA determines that the product contains a safety-related defect, the manufacturer would be responsible for notifying purchasers of the defective equipment and remedying the problem free of charge.

In a telephone conversation, you advised Dorothy Nakama of my staff that SolarTech manufactures more than 500 trailers per year. Early warning reporting requirements for your company as a manufacturer of trailers are specified at 49 CFR Section 579.24. You may review NHTSAs early warning information on-line at www-odi.nhtsa.dot.gov/ewr. Under the heading "March 19, 2004" is listed the "Compendium for Early Warning Reporting for Manufacturers of Motor Vehicles Having an Annual Production of 500 or More Vehicles" and a compendium for motor vehicle equipment manufacturers.

I hope this information is helpful. In addition to "Requirements for Trailer Manufacturers," I am enclosing a fact sheet entitled "Information for New Manufacturers of Motor Vehicles and Motor Vehicle Equipment". If you have any further questions, please feel free to contact Ms. Nakama at this address or by telephone at (202) 366-2992.

Sincerely,

Stephen P. Wood
Acting Chief Counsel

Enclosures
ref:VSA
d.1/4/06

ID: 10821-6

Mr. Andrew Grubb
Steve's Moped & Bicycle World
40 Park Avenue
Dumont, NJ 07628

Dear Mr. Grubb:

This responds to your letter asking whether this agency's requirements apply to several products you are selling. One is called the "California Go-Ped," a small push scooter with non-pneumatic tires, a 2-cycle motor mounted above the rear wheel, and a top speed of 20 mph. Another is called the "Tsi Power Scooter," and resembles a scooter in frame style, but has larger pneumatic tires and can be outfitted with a seat. The Power Scooter has a top speed of 15 mph. You cited a previous interpretation stating that a scooter (similar to the Go-Ped) is not a motor vehicle, and thus not subject to our requirements, so I assume that you are asking whether the products you sell are motor vehicles. You also asked about motorized "skateboards" and motors for mounting on a conventional bicycle.

The short answer to your question is that the Go-Ped is not a motor vehicle but the Power Scooter may be, depending on whether it is sold with a seat. Motorized "skateboards" are not motor vehicles, but motors for mounting on bicycles are "motor vehicle equipment."

You indicated that you have a copy of a letter dated April 1, 1991, in which we discussed whether a small push scooter called a "Walk Machine" is considered a motor vehicle for purposes of our standards. In that letter, we discussed the general principles for determining whether a product is a motor vehicle.

As discussed in that letter, vehicles that are equipped with tracks or are otherwise incapable of highway travel are plainly not motor vehicles. Further, vehicles designed and sold solely for off-road use (e.g., airport runway vehicles and underground mining devices) are not considered motor vehicles, even though they may be operationally capable of highway travel.

On the other hand, vehicles that are or can be operated off-road, but are also used on the public highways on a necessary and recurring basis are motor vehicles. For instance, utility vehicles like the Jeep are plainly motor vehicles, even though they are equipped with special features to permit off-road operation. If a vehicle will spend a substantial amount of time on- road, even though its greatest use will be off-road, NHTSA has found the vehicle to be a "motor vehicle." Further, if a vehicle is readily usable on the public roads and is in fact used on the public roads by a substantial number of owners, NHTSA has found the vehicle to be a motor vehicle. This finding was made with respect to dune buggies and regardless of the manufacturer's stated intent regarding the terrain on which the vehicles were to be operated.

In discussing whether the Walk Machine is considered a motor vehicle, we noted that NHTSA has stated in previous interpretations that vehicles that regularly use the public roads will not be considered "motor vehicles" if such vehicles have a maximum attainable speed of 20 miles per hour (mph) or less and an abnormal configuration which readily distinguishes them from other vehicles. We concluded that the Walk Machine is not a motor vehicle since it has a top speed of 16 mph and a configuration that readily distinguishes it from motorcycles and other two-wheeled vehicles.

I will now apply these principles to the products you ask about in your letter. First, the California Go-Ped has an almost identical configuration to that of the Walk Machine and a maximum speed of 20 mph. Therefore, we do not consider it to be a motor vehicle, for the same reasons that apply to the Walk Machine.

Second, the Power Scooter has a maximum speed of 15 mph and, when sold without a seat, has a configuration similar to that of the Walk Machine. In that configuration, we do not consider it to be a motor vehicle.

When equipped with a seat, however, the Power Scooter is considered to be a motor vehicle. Although the advertising literature states that the Power Scooter is "not for in-street use," NHTSA believes that it is indistinguishable from a moped, which is an on-street vehicle that we have long interpreted as a motor vehicle. Although most mopeds have chain drives, pedal starters, and lower-mounted engines, we do not think that these distinctions are important. The seated rider on the power scooter appears to other traffic to be riding a moped. We also note that the low ground clearance of the central platform appears poorly suited to off-road use.

Further, we consider the Power Scooter, when equipped with a seat, to be a type of motorcycle. A motorcycle is defined as "a motor vehicle with motive power having a seat or saddle for the use of the rider and designed to travel on not more than three wheels in contact with the ground" (Title 49, section 571.3 of the Code of Federal Regulations (CFR)). Motorcycles are subject to our regulations in 49 CFR Part 571, including Standards for lights (No. 108), rear view mirrors (111), brakes (122), and controls and displays (123). The materials you sent do not disclose the horsepower of the 21 cc engine, but we assume that it is less than 5 brake horsepower. If that assumption is correct, the vehicle would be a "motor-driven cycle," a type of motorcycle that is subject to less stringent requirements under our regulations. However, the Power Scooter does not appear to meet even the less stringent requirements. For example, the Scooter lacks lights, dual braking systems, and rear view mirrors.

The motors for mounting on a conventional bicycle are designed specifically to convert the bicycle into a motorcycle. Therefore, they are motor vehicle equipment. Despite the notation "not for in-street use" in the advertising brochure, bicycles are predominantly used in the streets. Merely adding a motor does not change this fact.

The motorized "skateboard" is not a motor vehicle because it was not manufactured for in-street use and is also not used on the public roads.

You stated in your letter that you want to clarify the application of our motor vehicle requirements to your products so that you can advise your customers exactly where they can and cannot operate them. We strongly encourage you to read the enclosed information sheet on your responsibilities under Federal law as a retailer of motor vehicles and motor vehicle equipment. In addition, while the location of use of particular vehicles can affect our determination of whether a vehicle is a motor vehicle, the actual regulation of the operation of vehicles and motor vehicles is a matter of State law. For information on State laws, you may contact the American Association of Motor Vehicle Administrators at: 4200 Wilson Blvd., Suite 600, Arlington, VA 22203.

I hope this information is helpful. If you have any further questions about NHTSA's safety standards, please feel free to contact Mr. Paul Atelsek at this address or by telephone at (202) 366-2992.

Sincerely,

John Womack Acting Chief Counsel

Enclosure ref:VSA d:6/12/95

ID: 11738BBY.BLT

Mr. Edward C. Chen
Pacific Quest International
9 Egret Lane
Aliso Viejo, CA 92656

Dear Mr. Chen:

This responds to your April 9, 1996, letter concerning a product that you are seeking to develop, called Athe BabyBelt.@ You ask whether the BabyBelt is subject to any Federal standards or safety guidelines, and also ask if we have any safety concerns about the product.

You describe the BabyBelt in a letter and sketch to the agency. I note that you had marked the word AProprietary@ on the letter. In an April 11, 1996, telephone conversation with Deirdre Fujita of my staff, you stated that you had no objections to our placing a copy of your letter and sketch in the agency=s public docket, which is a routine part of the interpretation process.

According to your letter, the BabyBelt is a device designed for use with forward-facing child restraint systems, to Asafely secure a child safety seat to the front passenger bucket style auto seat.@ The BabyBelt consists of Aan automobile grade nylon web belt (approximately 52 inches long), a positive retention buckle system (two pieces, made out of stamped steel), and an adjustable velcro attachment sleeve.@ The BabyBelt is placed through the frame of a child seat, Aand then wrapped around the back rest of the passenger seat. The belt is then tightened down to prevent the baby seat [sic] from moving in the case of sudden deceleration.@ You state that the BabyBelt is to supplement, and not replace, the vehicle=s belt system as the means for attaching a child seat to the vehicle seat. The product will be permanently labeled with a warning that the BabyBelt is supplemental to the vehicle belt system.

By way of background information, the National Highway Traffic Safety Administration (NHTSA) has the authority to issue Federal

motor vehicle safety standards for new motor vehicles and new items of motor vehicle equipment. NHTSA does not, however, approve or certify any vehicles or items of equipment. Instead, Congress has established a "self-certification" process under which each manufacturer is responsible for certifying that its products meet all applicable safety standards. The following represents our opinion based on the information set forth in your letter.

There currently are no Federal motor vehicle safety standards that directly apply to the BabyBelt. Our standard for "child restraint systems," Standard 213, applies to "any device except Type I or Type II seat belts, designed for use in a motor vehicle or aircraft to restrain, seat, or position children who weigh 50 pounds or less." The standard does not apply to accessory items, such as a supplemental belt that is used with a child safety seat. NHTSA also does not consider the BabyBelt to be a seat belt assembly subject to Standard 209, as it is a supplemental accessory to the existing seat belt assembly and not intended to be used alone.

While no standard applies to the BabyBelt, your product is considered to be an item of motor vehicle equipment. As a manufacturer of motor vehicle equipment, you are subject to the requirements of 49 U.S.C. ''30118-30121 concerning the recall and remedy of products with safety related defects. I have enclosed an information sheet that briefly describes those and other manufacturer responsibilities. In the event you or NHTSA determines that your product contains a safety- related defect, you would be responsible for notifying purchasers of the defective equipment and remedying the problem free of charge.

You ask us to discuss any concerns we might have about the BabyBelt. One concern we have relates to the strength of the vehicle seat back to which the BabyBelt would be attached. Vehicle manufacturers must ensure that their vehicles comply with the requirements of Standard 207, Seating Systems. Among other requirements, Standard 207 specifies strength requirements for the vehicle seat back, to minimize the likelihood of seat failure in a crash. When the BabyBelt is attached to the vehicle seat back as shown in your sketch, in the event of a crash the seat back will be subjected to forces resulting from the loading of the child seat and child occupant. In the absence of the BabyBelt, these forces are not normally imposed on the vehicle seat back, but are instead transferred to the vehicle structure through the seat belt anchorages. We suggest that you evaluate the strength of vehicle seats to ensure that they are strong enough for the loads imposed by the child seat and child occupant through the BabyBelt.

Another concern relates to where in the vehicle a child seat would have to be located to use the BabyBelt. Because the BabyBelt secures a child seat by wrapping around the back of the seat back on which the child seat is attached, the product can only be used with bucket style seats (as indicated on your sketch) or with a split back seat (as you informed Ms. Fujita). Using the BabyBelt with a bucket style seat necessitates placing the child restraint in the front seat of most passenger cars, because bucket seats are provided in the front, and not in the rear. Children are safer riding in the rear seats of vehicles than in the front seat. We recommend your instructions avoid encouraging consumers to place a child seat in the front seat if the child restraint can be placed in the rear. You might also consider informing them that, according to accident statistics, children are safer when properly restrained in the rear seating positions than in the front seating positions. Such a statement is required to be in the instructions for child restraints systems (49 CFR '571.213, S5.6.1.1).

Related to the concern discussed directly above, it appears the BabyBelt could possibly be used in the rear seat in a passenger car that has a split back seat, but even there it cannot be used in the center rear seating position. The rear center seating position is generally the safest.

Finally, you state in your letter that the BabyBelt will have a permanent warning label indicating that the belt is not to replace the vehicle=s belt system as a means of attaching a child seat to the vehicle seat. We agree that the warning is critical to reduce the likelihood that consumers may mistakenly use the BabyBelt as the primary means of attaching their child seats to the vehicle seat, and urge you to make the permanent warning clear and conspicuous. For your information, passenger vehicles manufactured since September 1, 1995, are required to have a locking mechanism for the lap belt or lap belt portion of lap and shoulder belts, to enable them Ato be capable of being used to tightly secure child safety seats without the necessity of the user=s attaching any device to the seat belt webbing, retractor, or any other part of the vehicle . . . .@ Enclosed is an October 13, 1993 final rule on this Alockability@ requirement. It appears that the requirement will address some of the same securement problems that you hope to address with the BabyBelt.

I hope this information is helpful. If you have any other questions, please do not hesitate to contact Ms. Fujita at (202) 366-2992.

Sincerely,

Samuel J. Dubbin Chief Counsel

Enclosure ref:213 d:5/15/96

ID: 1982-3.15

TYPE: INTERPRETATION-NHTSA

DATE: 10/28/82

FROM: AUTHOR UNAVAILABLE; Frank Berndt; NHTSA

TO: Department of Transportation; State of Hawaii

TITLE: FMVSS INTERPRETATION

ATTACHMT: ATTACHED TO LETTER DATED 04/13/89 FROM ERIKA Z. JONES -- NHTSA TO MABEL Y. BULLOCK, REDBOOK A33, STANDARD 205, VSA 103 (D), VSA SECTION 108 (A) (2) (A); LETTER FROM MABLE Y. BULLOCK AND LACY H. THORNBBURG TO SUSAN SCHRUTH -- NHTSA RE WINDOW TINTING, FEDERAL PRE-EMPTION OF STATE REGULATIONS, OCC 2142; NORTH CAROLINA STATUTE REGULATING WINDOW TINTING; LETTER DATED 12/18/87 FROM LACY H. THRONBURG AND MABEL Y. BULLOCK, SUBJECT MOTOR VEHICLES REGULATIONS OF DARK SHADED WINDOWS; PREEMPTION; LETTER DATED 05/06/88 FROM DAIRL BRAGG TO WILLIAM S. HIATT; LETTER DATED 04/04/85 FROM JEFFREY R. MILLER TO ARMOND CARDARELLI; REGULATIONS DATED 07/01/85 EST, FEDERAL AUTO SAFETY LAWS AND MOTOR VEHICLE WINDOW TINTING

TEXT:

Mr. Lawrence T. Hirohata Vehicle Equipment Safety Specialist Department of Transportation State of Hawaii 79 South Himitz Highway Honolulu, Hawaii 96813

Dear Mr. Hirohata:

This responds to your recent letter asking whether persons who apply tinted films to motor vehicle glazing would be considered motor vehicle distributors, dealers or repair businesses and thus be prohibited by section 108(a)(2)(A) of the National Traffic and Motor Vehicle Safety Act from rendering inoperative components that have been installed on vehicles pursuant to Federal Motor Vehicle Safety Standards.

The answer to your question is yes. The persons you described fall within classes of persons listed in section 108(a)(2)(A) and the application of tinted film to motor vehicle glazing can constitute "rendering inoperative." Section 108(a)(2)(A) of the Safety Act provides that:

"No manufacturer, distributor, dealer, or motor vehicle repair business shall knowingly render inoperative, in whole or part, any device or element of design installed on or in a motor vehicle or item of motor vehicle equipment in compliance with an applicable Federal motor vehicle safety standard,.... For purposes of this paragraph, the term "motor vehicle repair business" means any person who holds himself out to the public as in the business of repairing motor vehicles or motor vehicle equipment for compensation."

Without knowing more about the film appliers you described, we find it difficult to determine the number of classes into which they would fall. However, the film-appliers are clearly considered to be dealers. This conclusion is based on the definitions of "motor vehicle equipment" (section 102(4)), and "dealer" (section 102(7)). The tinted film is an item of motor vehicle equipment since it is an "accessory, or addition to the motor vehicle." Therefore, any person who sells the tinted film primarily to persons, typically vehicle owners, for purposes other than resale is a dealer. The status of such a person does not change because he or she also applies the film to motor vehicle glazing.

The film appliers you described may also be motor vehicle repair businesses. You stated that the film appliers argue that they are not repair businesses. Implicit in their argument is a narrow interpretation of the term "repair." We don't believe that such an interpretation was intended by Congress since it would frustrate Congress' stated purpose in attempting to ensure that safety equipment remains operative over the life of the vehicle. The only type of person mentioned in the legislative history as being permitted to render safety equipment inoperative is the owner of the Vehicle on which the safety equipment is installed. In addition, we believe that the references in the history to service, maintenance and replacement further suggest that a narrow interpretation was not intended.

The agency has consistently stated in its past letters of interpretation that the installation of tinted films on vehicle glazing constitutes rendering inoperative if the installation destroys the glazing's compliance with the light transmittance requirements of Safety Standard No. 205. The legislative history of section 108(a)(2)(A) provides that "render inoperative" includes permanent removal, disconnection or degradation of the safety performance of any element or design of a vehicle (Conference Report). Therefore, the activity described in your letter definitely falls within the scope of section 108(a)(2)(A).

In conclusion, it is the agency's opinion that businesses which are installing tinted films on motor vehicles and thereby destroying the glazing's compliance with the light transmittance requirements of Safety Standard No. 205 are in violation of section 108(a)(2)(A) of the National Traffic and Motor Vehicle Safety Act. As such, the businesses are liable for civil penalties up to $1,000 for each violation.

Our Office of Enforcement is currently investigating the practice of applying tinted film to motor vehicle glazing. Accordingly, we have forwarded a copy of your letter and the advertisement to that office for its action.

Sincerely,

Original Signed By Frank Berndt Chief Counsel

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

Attention: Mr. Hugh Oates

Dear Mr. Berndt:

This is to reiterate my telephone request of August 5, 1982 relating to the federal interpretation of the phrase "motor vehicle repair business" as used in the National Traffic and Motor Vehicle Safety Act of 1966 (the Act).

In Hawaii, there are numerous businesses engaged in the trade of applying film or liquid tinting materials to motor vehicle window glass for a fee. All window glass, including those required for driver visibility, are tinted to a shade where under normal sunny condition the occupants or objects inside the vehicle cannot be readily visible from outside the vehicle. The minimum 70% luminous transmittance required for driving visibility as recommended in the American National Standard (ANS) Z26.1 and referenced by the Federal Motor Vehicle Safety Standard (FMVSS) 205 are being rendered inoperative by these businesses.

We believe these businesses may be in violation of the Act. However, the operators of these businesses contend that they are not in the motor vehicle repair business because they do not repair anything mechanical. They perform only superficial facelifting of vehicle exterior.

In your opinion, would you consider these businesses as a motor vehicle repair business within the scope of the Act? Can these businesses also be considered as a distributor or dealer of "motor vehicle equipment" as defined in Section 102(4), (6) and (7) of the Act?

Enclosed is a typical advertisement offering a special for auto glass tinting by a business here in Honolulu. This ad appeared in the August 13th issue of a weekly classified ad.

We would appreciate any legal opinion or assistance you can share with us to effectuate a solution to this monstrous problem.

Thank you for your cooperation.

Sincerely,

LAWRENCE T. HIROHATA Vehicle Equipment Safety Specialist

ID: 1983-1.32

TYPE: INTERPRETATION-NHTSA

DATE: 03/22/83

FROM: AUTHOR UNAVAILABLE; F. Berndt; NHTSA

TO: Hon. D. L. Boren, U.S. Senate

TITLE: FMVSS INTERPRETATION

TEXT:

March 22, 1983 NOA-30

The Honorable David L. Boren United States Senate Washington, D.C. 20510

Dear Senator Boren:

This responds to your recent letter requesting information on behalf of one of your constituents, Mr. John H. Kiser. Mr. Kiser is concerned about the growing practice of persons installing "privacy glass" or "one-way plastic films" on passenger car windows. He believes this is a dangerous practice because it prevents law enforcement officers and other drivers from seeing inside the vehicles. Mr. Kiser thinks there should be Federal laws to prevent such installations in passenger cars.

A Federal regulation already exists which, under certain circumstances, precludes the practice referred to by Mr. Kiser. The National Highway Traffic Safety Administration has the authority to govern the manufacture of new motor vehicles and motor vehicle equipment. Pursuant to the National Traffic and Motor Vehicle Safety Act, we have promulgated Federal Motor Vehicle Safety Standard No. 205, Glazing Materials, which specifies performance and location requirements for glazing used in vehicles. These requirements include specifications for minimum levels of light transmittance (70 percent in areas requisite for driving visibility, which includes all windows in passenger cars) and abrasion resistance. This specification for light transmittance precludes darkly-tinted windows in new automobiles.

The agency has stated in past interpretations that solar films such as the type referred to in Mr. Kiser's letter are not glazing materials themselves, and would not have to comply with Standard No. 205. However, installation of such films on new motor vehicles would be prohibited if the vehicle glazing no longer complied with the light transmittance or abrasion requirements of the standard. If a vehicle manufacturer or a dealer places the film on glazing in a vehicle prior to sale of the vehicle, that manufacturer or dealer has to certify that the glazing continues to be in compliance with the requirements of Standard No. 205. Section 108(a)(1) prohibits any person from offering for sale or selling any motor vehicle or equipment that fails to comply with applicable safety standards.

After a new vehicle has been sold to the consumer, he may alter his vehicle as he pleases, so long as he adheres to all State requirements. Under Federal law, the owner could install the tinting film on glazing in his vehicle whether or not such installation adversely affected the light transmittance and abrasion resistance of his vehicle's glazing. It should be noted, however, that section 108(a)(2)(A) of the National Traffic and Motor Vehicle Safety Act provides that no manufacturer, distributor, dealer or motor vehicle repair business shall knowingly render inoperative any device or element of design installed on or in a motor vehicle in compliance with an applicable motor vehicle safety standard. "Render inoperative" means to remove, disconnect or degrade the performance of a system or element of design installed pursuant to the Federal safety standards. Thus, none of those persons may knowingly install a solar film on a vehicle for its owner if that act would render inoperative the light transmittance or abrasion resistance of the vehicle glazing. Whether this would be the case would have to be determined by the person making the installation. Violation of this section can result in Federal civil penalties up to $1,000 for each violation.

The preceding discussion regarding tinting films would be equally applicable to "one-way privacy glass," if such glass did not have a luminous transmittance of at least 70 percent. This means that such glass could not be installed by a dealer on new passenger cars prior to their first sale, nor by the persons mentioned in section 108(a)(2)(A), on used vehicles, to replace complying glazing.

The individual States must govern the operational use of vehicles by their owners since the agency does not have authority in this area. Thus, it would be up to the States to preclude owners from applying films or one-way glass on their own vehicles. Mr. Kiser may wish to contact the National Committee on Uniform Traffic Laws (555 Clark Street, Evanston, Illinois 60204) to find out which States have laws that would preclude owners from placing solar film on their automobile windows.

I am enclosing a copy of Safety Standard No. 205 for Mr. Kiger's information. Please contact Hugh Oates of my staff if you have any further questions (202-426-2992).

Sincerely,

Frank Berndt Chief Counsel

2 Enclosures Constituent's Letter Standard No. 205

United States Senate

February 28, 1983

Respectfully referred to:

Congressional Liaison Dept. of Transportation Washington, DC

PLEASE RESPOND TO ATTENTION OF: SS

Because of the desire of this office to be responsive to all inquires and communications, your consideration of the attached is requested. Your findings and views, in duplicate form, along with return of the enclosure, will be appreciated by

-------------------- U.S.S. David L. Boren

We think this subject is a matter for State legislation not federal. Would appreciate your views since he will not give up.

February 18, 1983

216 Bluebird Drive Midwest City, OK 73110

Senator David L. Boren Russell Senate Office Bldg Washington, D. C. 20510

Dear Senator Boren:

In October 1981 I wrote to you regarding control of privacy glass or one way plastic film in or on windshields, drivers window and passenger window.

Your November 4, 1981 reply advised that I should discuss the problem with local representative or senator.

I have said nothing to them and have delayed writing to your office again as I thought legislation might originate from another source. It seems to me that federal instead of state legislation is called for. If Oklahoma had a law prohibiting such privacy glass a traveler would be just as dead if killed as a result of a driver in another state having such privacy glass. A uniform stand is necessary so that:

a. Law enforcement officers can see who is inside or what weapons they might be pointing it at the officer.

b. Other drivers can see if driver approaching intersection is looking at all cars or changing the tuning of his radio.

c. Condition of driver can be determined by others.

Sincerely

John H. Kiser

ID: 1984-3.46

TYPE: INTERPRETATION-NHTSA

DATE: 12/01/84 EST.

FROM: NATIONAL SCHOOL BUS REPORT

TITLE: SLASHING TIRES FOR SAFETY AND SAVINGS

ATTACHMT: DECEMBER 30, 1988 LETTER FROM JONES TO SPRUNK, OCTOBER 8, 1987 LETTER FROM SPRUNK TO JONES, BROCHURES ON TIRE SIPING, 1978 NSC WINTER TEST REPORT, AUGUST 19, 1986 LETTER FROM KEIL TO SPRUNK, ARTICLE FROM AUGUST 19, 1986 ISSUE OF "SCHOOL BUSINESS AFFAIRS," MARCH 20, 1985 LETTER FROM GIFFORD TO SPRUNK, OCTOBER 15, 1982 LETTER FROM PALMER TO MARCY MANUFACTURING, AND APRIL 1983 AND APRIL 1984 ARTICLES FROM "GW SAFETY TALK"

TEXT: Coping with western Montana winter roads used to be a problem for NSTA member Bob Beach, until he made the switch from studded tires to slashed tires. That's right: slashed tires -- thin cuts across the tire, from 5/32 to 11/32 inches deep, and eighth of an inch apart, all the way around. The process is called "siping."

The problem with studs wasn't safety, but cost. "Studs will wear tire casings out," says Beach, "and though they are legal in Montana, they will wear highways out. We used to have a studding machine which made it cost-effective at one end, but we needed another set of tires for summer months, so at the other end, studded tires were costly."

Beach Transportation operates in the city and county of Missoula, Montana. His fleet consists of more than 70 school buses plus seven MCI coaches travelling 793,000 miles per year.

Winters are surprisingly short in Beach's part of the country, from about November to the end of February, but in those months the usual hazardous conditions prevail -- snow pack, slush at times and black ice at others. Schools are rarely closed due to snow, so school buses are expected to perform daily and safely. With siped tires, they do.

According to Beach, the little slits created by siping make the footprint of a tire spread, giving it more flexibility. "This means the tire grips the surface better, and it makes braking and steering on snow or ice much more effective." He added, "you get much better traction spin for starts."

Before the invention of an easy-to-use and low-cost machine that slashed tires, Beach used to cut tires by hand. "Back then, it was called cross cut," he explained, "but it was a costly operation, and the cuts weren't uniform. We wanted something safer."

Siping was invented back in the 1930s by a packing plant worker named John Sipes, who made a series of small cuts in his rubber-soled shoes to prevent slipping. Sipes extended his idea to tires, but it was several decades before the idea became a commercial success.

Today, tire-slashing machines are manufactured by Saf-Tee Siping and Grooving, Inc., the only manufacturer of after-purchase siping equipment.

Purchasers claim that the machines are trouble-free and cost effective. Each blade used to make the sipes is good for 80 to 90 tires, and costs around $ 5 each. Also, the machines are easy to manage and can be operated after 10 to 15 minutes of instruction.

The cost to sipe a school bus tire is $ 10. It takes about five minutes once it is off the vehicle. Any type of tire can be siped -- new, re-cap, or used, as long as it has 5/32" of tread left. Beach Transportation runs new tires on the front of his school buses, and lug re-caps on the rear. His tire inventory is around 500 and every tire is siped, including personal cars and the company tow truck.

Tire engineers have been impressed with test results which show that on snow and ice, siped tires were impressively better performers in terms of traction, braking, and cornering. And, contrary to the engineers' expectations, tread life increased.

Now, molded sipes, a process done during manufacturing, are an almost standard part of tread designs, but are not as effective as siping, an after-purchase process, since molded sipes are spaced only 1/4 inch apart. Also, molded sipes can displace rubber and reduce tread volume, whereas siping does not.

For siping to be most effective, the cuts must go straight across the tire, be of the same depth as the tread, and be at regular intervals. The result of siping with the Saf-Tee Siper is that hundreds of tread elements are created, and each individually grips the road surface and flexes under the stress of acceleration and braking.

Ice traction tests, comparing siped and unsiped tires with identical tread patterns on all four positions, showed the stopping distance of the vehicle to be 155.6 feet with siped tires, versus 200 feet for unsiped tires -- an improvement in performance of 22 percent. And tests for break-away traction on ice show that a significant advantage in force is developed by siped tires compared to non-siped. Once break-away occurs and the tires begin spinning, there is an increase in spinning traction developed by the siped tread in excess of 25 percent.

There are a few eases(Illegible Words) a tire may not be the(Illegible Words) go. First, when the tread design(Illegible Word) already complex and siping would result in numerous unsupported tire elements, chunking might result. Second, using siped tires on gravel roads is not recommended since gravel can cause chunking. However, some companies prefer siped tires in all conditions, including gravel because of the increased safety.

Bob Beach used to run his siped tires only in the winter, but he began using them year-round when he noticed that tire life was increased after siping. He also discovered that siped tires are very effective in Montana's June and September rains. "The siped tread elements open up and the sharp edges penetrate the lubricating film of water in what might be called a squeegee action, and the openings between the tire elements created by the sipes channel water away, minimizing hydroplaning."

Various tests have shown that on slick, wetted surfaces, such as concrete, a new tread with cut sipes will provide up to a 30 percent increase in braking traction, at speeds between 20 to 60 mph. One Canadian transit manager testing low-tread siped tires reports, "I know some of you will say 16 percent (his test results) is only three feet at 20 mph, but three feet can be the difference between an accident and no accident, or a $ 2,000 accident and a $ 1,000 accident. The less accidents you have, the lower your insurance premiums are. The less accidents your fleet has the more confident your drivers are, and the company president is happy."

That certainly is the case with Bob Beach. Siped tires are not only safer on roads that are icy, snow-packed, or filmed with water, they are also cost-effective even on dry roads. They run cooler and dissipate heat. "Increased safety and reduced operating costs don't always go together, but with machine-siped tires, they do. There's no way I'd go back to running without them."

This article was written by Richard Chapman for Saf-Tee Siping & Grooving, Inc., 3467 E. Sunrise Dr., Minnetonka, MN 55345. For further information, contact Wes Sprunk at (612)935-4540.

ID: nht76-1.43

DATE: 06/23/76

FROM: AUTHOR UNAVAILABLE; T. W. Herlihy for S. P. Wood; NHTSA

TO: Little Dude Trailer Company, Inc.

TITLE: FMVSS INTERPRETATION

TEXT: This is in response to your March 26, 1976, letter concerning the certification label requirements in S5.3 of Federal Motor Vehicle Safety Standard No. 120, Tire Selection and Rims for Motor Vehicles Other Than Passenger Cars.

You have pointed out that the example shown in S5.3 presents rim, inflation, and maximum speed information after the Gross Vehicle Weight Ratings (GVWRs) as well as after the Gross Axle Weight Ratings (GAWRs). You have suggested that the text of S5.3 merely requires such information to appear after the GAWRs and urged such an interpretation. It appears that you have misunderstood the text.

In its present form, S5.3 requires each listed GVWR and GAWR to be followed by the information specified in paragraphs S5.3(a) through (d). Paragraph (a) is divided into subparagraphs (a)(1) and (a)(2) in order to specify different items to follow GVWR and GAWR, respectively. Paragraphs (b) through (d) (which specify rim, inflation, and maximum speed information) are not subdivided because the same items are intended to follow GVWR and GAWR.

Several petitions for reconsideration of the standard have requested an amendment of S5.3 to eliminate the requirement that tire and rim information appear after the GVWR. Your suggestions on this matter, as well as the other suggestions in your letter, are being considered by the National Highway Traffic Safety Administration in the preparation of its response to those petitions.

Please note that the effective dates of several of the standard's requirements, including that of S5.3, were delayed in a Federal Register notice published on May 6, 1976 (41 FR 18659; Docket No. 71-19, Notice 4). A copy of that notice is enclosed for your convenience.

YOURS TRULY,

little dude TRAILER COMPANY, INC.

March 26, 1976

James B. Gregory Administrator National Highway Traffic Safety Administration Department of Transportation

Re: Safety Standard 120

We have some questions and comments regarding the subject standard. On page 3480 (S5.3) you cover the requirements of the certification label. Part (a) (1) states, "After GVWR, the size designation of tires appropriate as a minimum for the GAWR's corresponding to that GVWR." Paragraph (a) (2) then goes into GAWR which is to be followed by (b), (c), and (d) as well as the appropriate tire size. On the surface, it appears that the GVWR is to be followed only by tire size; yet, your example shows it (GVWR) followed by everything, even though it is a duplication, that follows GAWR. Which is correct? If the example is correct, why should rim size, cold inflation, and maximum speed be repeated since they obviously must be the same?

Now, as to your discussion of the comments. On page 3478, 3rd column, 2nd paragraph, you state that the commentors pointing to the large number of possible combinations making the decal too large and confusing are not correct because they fail to fully understand the rule. We have no doubt that this is true on the comprehension part; but we cannot possibly see how rim designation, tire inflation, and maximum speed can be of any possible use to the consumer when the tires on the vehicle need not be listed. We hope that people do not apply this info in servicing, driving, or replacing a larger size tire than appears on the decal. The obvious question is, if these items don't have to apply to the tires on the vehicle, what good are they?

We feel that the comments about the size of and confusion on the decal definitely are pertinent to boat trailers even if not pertinent to cars and trucks. We are limited in size (3" to 5") for vertical decal expansion; consequently, we can only go horizontally to add the new information. Since some decals encompass as many as 4 GVWR's and GAWR's (8 on a tandem) we could very easily have one whole side of the trailer which would require no paint. What you failed to realize in your comment interpretation is that 99% of the changes in tires on boat trailers are made to change capacities; therefore, your answer that the law does not require the listing of more than one tire size is just not applicable to trailers. The changing of tires changes both the GVWR and the GAWR which adds all of your additional information in as much as fourfold for GVWR and up to eightfold on GAWR for a tandem. Some trailer manufacturers even go as far as 3 axles. The only alternative to this horrendous decal that no one could read or understand is a separate one for each capacity trailer. This alternative would be utter chaos for the Marine Industry and any other trailer shipped in a knocked down condition. When the same frame has up to 4 different running gear and load capacity combinations there is no assurance that our assembly people will be able to distinguish which decal goes with which running gear. Needless to say, the people putting trailers together for a dealer will never get them right or even care. The inventory duplication will be impossible for the manufacturer and his customers.

For once, why can't trailers be excepted from the laws governing cars and trucks? They are entirely different both in type and use. Between the lighting, decal, new warranty requirements, and cutting of tire capacities, we are fast protecting the consumer fully. Since all these costs must be passed on, the consumer will soon be unable to afford a trailer; hence, full protection because no one will have one.

No Marine Dealer or consumer that we have talked to knows or cares what GVWR and GAWR means. Furthermore, most trailer manufacturers buy their wheels and tires mounted. The rim information is to be on the wheel, capacity and inflation pressure are on the tires, and the over-the-road speed limit is 55 MPH. Aren't these items enough? They are certainly a safer guide than the decal information which you admit may or may not apply to the tires on the trailer. The only problem would be a disreputable tire or trailer manufacturer mounting a high capacity tire on a lower capacity rim. The trailer manufacturers that would do this aren't legal on lights and decal (some don't even have one) now; so, they won't be affected anyway, and the tire companies simply can't afford to run that kind of risk. This will be just another means of making reputable manufacturers less competitive with our already illegal "backyard" competitors. They never even paid their excise tax and certainly aren't worried about a decal.

Please advise:

1. Whether the example or the language is correct,

2. If we have misinterpreted anything,

3. If there is any way trailers, can be excluded from the new decal requirements.

Richard L. Rogers President

cc: CHUCK VERRILL; JEFF NAPIER

ID: nht88-2.89

TYPE: INTERPRETATION-NHTSA

DATE: 08/08/88

FROM: ERIKA Z. JONES -- CHIEF COUNSEL NHTSA

TO: WARD W. REESER -- PROJECT ENGINEER ELECTRICAL SYSTEMS CATERPILLAR TRACTOR CO.

TITLE: NONE

ATTACHMT: LETTER DATED 12/04/87 TO TAYLOR VINSON FROM W.W. REESER, OCC-1383

TEXT: Dear Mr. Reeser:

I am writing in response to your December 4, 1987 letter in which you described Caterpillar Inc.'s worldwide program to review lighting used on Caterpillar product lines in order to standardize the devices. You specifically asked if any of Caterpillar's lighting devices were covered by Federal Motor Vehicle Safety Standard (FVSS) 108. You enclosed descriptive literature on the Caterpillar product line. I regret the delay in responding to your question.

It must be noted at the outset that the National Highway Traffic Safety Administration (NHTSA) issues safety standards for "motor vehicles." Therefore, Standard 108 and all of our other regulations apply to a vehicle and its manufacturer only if the vehi cle qualifies as a "motor vehicle" under the provisions of the National Traffic and Motor Vehicle Safety Act of 1966 (15 U.S.C. 1381 et seq.). Section 102(3) of the Act defines "motor vehicle" as: any vehicle driven or drawn by mechanical power manufact ured primarily for use on the public streets, roads, and highways, except any vehicle operated exclusively on a rail or rails.

We have interpreted this language as follows. Vehicles that are equipped with tracks or are otherwise incapable of highway travel are plainly not motor vehicles. Agricultural equipment, such as tractors, are not motor vehicles because Congress clearly did not intend to include them in its coverage. Further, vehicles designed and sold solely for off-road use (e.g., Airport runway vehicles and underground mining vehicles) are not considered motor vehicles, even though they may be operationally capable o f highway travel.

On the other hand, vehicles that use the public highways on a necessary and recurring basis are motor vehicles. For instance, utility vehicles like the Jeep are plainly motor vehicles, even though they are equipped with special features to permit off-ro ad operation. If a vehicle's greatest use will be off-road, but it will spend a substantial amount of time on-road, NHTSA has interpreted the vehicle to be a "motor vehicle." Further, if a vehicle is readily usable on the public roads and is in fact use d on the public roads by a substantial number of owners, NHTSA has found the vehicle to be a motor vehicle. This finding was made with respect to dune buggies and regardless of the manufacturer's stated intent regarding the terrain on which the vehicles were to be operated.

As noted above, this agency has consistently interpreted "motor vehicle" to exclude vehicles that are equipped with tracks or are otherwise incapable of highway travel. Therefore, the track-type tractors, excavators, track-type loaders, tracked pavement profilers PR-450, PR-750B and PR-1000, concrete slipform pavers & auxiliary equipment, finegraders, front shovels, swing machines, tracked skidders D4H and D5H are not considered to be "motor vehicles."

In your letter, you described the Caterpillar line of construction and industrial equipment as basically for off-highway use: "There are occasional uses on the highway for such equipment as motor graders, but obviously none of this equipment is designed for normal highway use or for the transportation of people." Despite their use of the highway, some vehicles are expected from the motor vehicle classification. Highway maintenance and construction equipment, lane stripers, self-propelled asphalt pavers , and other vehicles whose maximum speed does not exceed 20 miles per hour and whose abnormal configuration distinguishes them from the traffic flow are not considered "motor vehicles."

Although many items in the Caterpillar product line have an abnormal configuration that readily distinguishes them from other vehicles, the product literature enclosed with your letter did not provide sufficient information on the maximum speed capabilit ies or intended uses (i.e., strictly off highway or occasional on-highway use) of the motor graders, off-highway tractors, articulated dump trucks, wheel tractors, compactors, landfill compactors, wheel loaders, integrated toolcarriers, backhoe loaders, pavement profilers PR-75, PR-105 and PR-275, asphalt pavers & auxiliary equipment, compaction equipment, skidders, pipelayers, scrapers, and off-highway trucks to enable me to make a determination whether these would be considered "motor vehicles." Howev er, I believe that the guidelines for classifying vehicles that are set forth above will allow you to determine if these are "motor vehicles." If they are, they must comply with safety standards, including Standard 108, applicable to trucks.

The lighting devices and other features of "motor vehicles" would be required to comply with the FMVSS (49 CFR Part 571). As you are aware, Standard No. 108; Lamps, reflective devices, and associated equipment (49 CFR @ 571.108) specifies requirements f or original and replacement lamps, reflective devices, and associated equipment necessary for signaling and

for the safe operation of motor vehicles during darkness and other conditions of reduced visibility.

Finally, the product literature included several items which did not appear to be self-propelling, including the asphalt drum mixers, aggregate bins, and compaction equipment items TSF-54 and TSM-54. These products fall within NHTSA's jurisdiction if th ey are "trailers" as that term is defined at 49 CFR @571.3. That section defines "trailer" as "a motor vehicle with or without motive power, designed for carrying persons or property and for being drawn by another motor vehicle."

Based on the depiction in the brochure, the equipment appear to be designed for carrying property (drum mixers, aggregate bins, and compaction equipment) and for being drawn by another vehicle. Therefore, whether the equipment are trailers depends on wh ether they are "motor vehicles" within the meaning of the Safety Act and on whether the vehicles the equipment are designed to be drawn by are "motor vehicles." Specific information has not been provided about the intended uses of the equipment. If they make frequent use of the highways, and stay at one particular job site for a limited amount of time, the items mentioned above would be motor vehicles, and woul d fall within the definition of "trailers." Trailers are subject to Standard No. 108, Lamps, Reflective Devices, and Associated Equipment. If, on the other hand, the equipment are intended to be drawn by vehicles that are not motor vehicles, or the equi pment stays at a job site for extended periods of time and it travels on the highways only to move to another job site for an extended stay, the equipment would not be considered motor vehicles.

It is important to note that NHTSA does not approve motor vehicles or motor vehicle equipment, nor do we endorse commercial products. Instead, the National Traffic and Motor Vehicle Safety Act establishes a "self certification" process under which each manufacturer is required to certify that its products meet all applicable safety standards. The National Traffic and Motor Vehicle Safety Act prohibits the manufacture or sale of a noncomplying product.

I hope the information provided above will be useful to you and to Caterpillar, Inc. If there are any further questions or if you need further information, please do not hesitate to write to me.

Sincerely,