ID: 07-003334as

ID: nht87-2.22

TYPE: INTERPRETATION-NHTSA

DATE: 06/24/87

FROM: DIETMAR K. HAENCHEN -- VOLKSWAGEN OF AMERICA, INC.

TO: ERIKA Z. JONES -- NHTSA

TITLE: REQUEST FOR INTERPRETATION - FMVSS 205

ATTACHMT: ATTACHED TO LETTER DATED 11/03/88 FROM ERIKA Z JONES TO DIETMAR K HAENCHEN; REDBOOK A32 (2), STANDARD 205

TEXT: Dear Ms. Jones:

The design of passenger cars has changed in recent years to reduce aerodynamic drag and increase fuel efficiency. Volkswagen is planning to improve interior comfort and reduce energy consumption in future car models by introducing selected areas with re duced energy transmission via ceramic dots on the car's glazing. The reduced energy radiation into the interior increases driver's and passenger's comfort and results in increased active safety. We believe that the application of shaded areas on the wi ndows complies with the applicable safety standards. Different methods exist for shading those areas; the glass may be tinted like shade bands applied to windshields, or small ceramic dots can be applied on the glass surface having the same effect on th e reduction of energy transmission. The sections of glass selected for the application of the ceramic paint could, if not for styling aesthetics, be covered with sheet metal in order to avoid questions of interpretation of FMVSS 205. However, the styli ng incentive is compelling and driver visibility with the proposed configuration is better than total blockage with sheet metal, which would clearly be allowable. We are, therefore, seeking the agency's opinion of this concept which we are considering fo r the next new model line. While the agency does not give advance approval of specific product designs, the agency's opinion of whether the configuration proposed herein appears to comply with the applicable Federal Motor Vehicle Safety Standards will a id manufacturers in determining whether the numerous variations of the concept applied to various vehicles will comply with the standards.

Volkswagen has reviewed Standard 205 which in turn refers to ANS z26.1 (1980) which establishes requirements for safety glazing material for use in passenger cars. In Section 4.2 of ANS z26.1, specifications for items 1 and 2 glazing which VW intends to apply to the windshield and side/rear glass respectively refer to footnotes 1 and 3 when specifying Test 2 - Light Transmittance. Those footnotes allow areas of the glazing to have less than 70% light transmittance if the areas are not within the "leve ls required for driving visibility".

The term "levels requisite for driving visibility" has been used by the agency in interpretations and on several occasions has been addressed more precisely such as the interpretation to Mr. G. Nield on 15 February, 1974 as follows: "We (the agency) cons ider the word 'levels' in Standard 205 to mean vertical heights in relation to driver's eyes." To our knowledge the agency has not gone beyond the above interpretation in further defining "levels requisite for driving visibility".

In order to comply with FMVSS 205 Volkswagen deems it appropriate to use engineering judgement, applicable standards and technical recommendations to define these "levels" so that driving visibility is properly maintained with the installation of glazing material having areas within a single sheet of less than 70% light transmittance.

Footnote 1 of ANS z26.1 - 1980, although not expressively stated, refers mainly to shade bands and has been so construed and treated by the industry. The automobile industry so far has determined which areas are "requisite for driving visibility" and ha s marked the shaded areas as required. In these cases the industry determined how far shade bands can extend donward from the upper edge of the window and still be in compliance with FMVSS 205.

SAE J100 (passenger car glazing shade bands) also refers to ANS z26.1 when defining "glazing shade band" as "an area of the vehicle glazing through which light transmission is less than required for use at levels requisite for driving visibility by USAS z26.1". The SAE recommends shade bands above the 95th eyellipse only, but acknowledged at that time that substantial research to establish the driver's field of view did not exist. Volkswagen also believes that these data do not exist currently.

Guidelines for a determination of "levels" which extend upward from the bottom edge of the vehicle glazing are addressed in Directive 77/649 as amended in 81/643 of the European Economic Community (EEC). The directive specifies levels requisite for driv ing visibility in the driver's 180 degrees forward direct field of vision. Section 5.1.3 specifies the boundaries for the driver's forward direct field of vision by a horizontal plane through V[1] (upper boundary) and by three planes at downward angles of 4 degrees through V[2] (lower boundary). The latter describes the minimum field of view for small persons through the lower portion of the glazing.

The EEC in its effort to set angular limits for the driver's forward direct field of vision used anthropometric data of horizontal head and eye movement to arrive at the 180 degrees limit. The SAE in its information report J985 arrives at the same figur e when the angles of "maximum head movement (is) 60 degrees left and 60 degrees right" and "the eyes can turn 30 degrees to the right in one rapid, smooth movement", are combined.

For the rear visibility in the U.S., the "levels requisite for driving visibility" are not specified if a passenger side rearview mirror is used according to FMVSS 111. Technically, the complete rear glazing can be blocked by a vehicle manufacturer if a passenger side rearview mirror is installed as standard equipment. Volkswagen intends to install a passenger side outside mirror as standard equipment in conjunction with the subject shading configuration and also to provide an area in the rear glazing with transmissability of greater than 70%.

With this background, Volkswagen is planning to include either tinted bands or ceramic dots on glazing as described in Attachments I and II. Volkswagen believes that this concept clearly allows light transmittance in excess of 70% in the areas requisite for driving visibility and consequently should adequately satisfy the safety needs for overall driving visibility.

Volkswagen has tested these boundaries according to the specifications of 77/649/EEC and concluded that ceramic dots in the area defined in 5.1.3 very well cover the vertical heights in relation to even small driver's eyes, which are "requisite for drivi ng visibility". In addition we have designated the area adjacent to the right and left hand outside mirrors as requisite for driving visibility.

This proposal has been approved by the German government (KBA) as recommended by the Technical Service Hannover. This approval was based on the fact that it complies with the driver's direct field of view (forward 180 degrees) and that unobstructed outs ide rearview mirrors are used on both sides to supplement the inside rearview mirror for the driver's indirect field of view. This approval is based on compliance with the applicable EEC Directive and therefore will likely be acceptable to all Common Ma rket countries.

Volkswagen requests the agency's opinion of this proposal and an interpretation of whether the markings described in Section 6 of ANS z26.1 would be required to show the limits of the area that is intended to comply with the 70% transmittance requirement . If required, Section 6 states that the glazing "shall be permanently marked at the edge of the sheet to show the limits of the area that is intended to comply with Test No. 2" (70% transmissability). Interpretation is requested of where these markings should be placed for the configurations shown in Attachments I and II if they are required. Since this is under consideration for the next model year, a timely response is requested.

ATTACHMENTS

ATTACHMENT I

Lichtdurchlassigkeit zwischen 75% and 82% LIGHT TRANSMITTANCE BETWEEN 75% AND 82%

Lichtdurchlassigkeit von 30% , 70% LIGHT TRANSMITTANCE FROM 30% TO 70%

Lichtdurchlassigkeit 30% LIGHT TRANSMITTANCE 30%

Lichtdurchlassigkeit zwischen 75% und 77% LIGHT TRANSMITTANCE BETWEEN 75% AND 77%

Lichtdurchlassigkeit von 30% > 70% LIGHT TRANSMITTANCE FROM 30% TO 70%

Lichtdurchlassigkeit zwischen 72% und 75% LIGHT TRANSMITTANCE BETWEEN 72% AND 75%

Warmeschutzverglasung HEAT ABSORBING GLASS

E/KK - AA 87.01.

ATTACHMENT II

Lichtdurchlassigkeit zwischen 75% und 82% LIGHT TRANSMITTANCE BETWEEN 75% AND 82%

Lichtdurchlassigkeit von 30% > 70% LIGHT TRANSMITTANCE FROM 30% TO 70%

Lichtdurchlassigkeit 30% LIGHT TRANSMITTANCE 30%

Lichtdurchlassigkeit zwischen 75% und 77% LIGHT TRANSMITTANCE BETWEEN 75% AND 77%

Lichtdurchlassigkeit von 30% > 70% LIGHT TRANSMITTANCE FROM 30% TO 70%

Lichtdurchlassigkeit zwischen 72% und 75% LIGHT TRANSMITTANCE BETWEEN 72% AND 75%

Warmeschutzverglasung HEAT ABSORBING GLASS

E/KK - AA 87.01.

ID: GRACIA.LTR

Arthur H. Bryant, Esq.
Executive Director
Trial Lawyers for Public Justice
Suite 800
1717 Massachusetts Avenue, NW
Washington, D.C. 20036

Re: Gracia v. Volvo Europa Truck, N.V.,

N.D. Ill., Civ. No. 87-C-10005

Dear Mr. Bryant:

This is in response to your letter requesting that the United States file an amicus curiae brief with the Seventh Circuit in the above-referenced case, in which the District Court ruled that the plaintiff's claims are preempted by Federal law.

Although the National Highway Traffic Safety Administration (NHTSA) disagrees with both the result and the rationale adopted by the District Court, we have decided not to request the Department of Justice to file an amicus brief. A brief discussion of our views on this legal issue and the basis for our decision not to participate is set forth below.

As you are aware, NHTSA has consistently taken the view that, as a general matter, Federal motor vehicle safety standards (FMVSS) issued under 49 U.S.C. Chapter 301 preempt state common law actions only in very limited situations, which do not appear to apply here. Our views on this issue were most recently stated in the amicus curiae brief filed by the United States in Freightliner Corp. v. Myrick, 115 S. Ct. 1483 (1995).

To summarize, judgments under the common law can effectively create "standards" that would be expressly preempted by the "preemption clause" of Chapter 301, 49 U.S.C. 30103(b)(1),⁽¹⁾ if that clause stood alone. However, the "savings clause," 49 U.S.C. 30103(e),⁽²⁾ precludes a finding that suits seeking to recover damages on the basis of a manufacturer's failure to go beyond the requirements of a standard are expressly preempted. Moreover, such suits are impliedly preempted only in those relatively rare cases where the common law duty sought to be imposed on an auto manufacturer would create an actual conflict with a NHTSA safety standard, either because it would be impossible to comply with both state and Federal requirements or because the judgment would "stand as an obstacle to" or "frustrate the purpose of" federal law.

As we understand the facts in the Gracia case, the plaintiff was injured when she was "thrown through the windshield" of a model year 1986 Volvo truck that had a gross vehicle weight rating (GVWR) of more than 10,000 pounds and which was a "forward control vehicle." One of NHTSA's safety standards, FMVSS No. 212, "Windshield mounting," 49 CFR 571.212, imposes performance requirements for windshields of certain vehicles. The standard applies to passenger cars and to trucks with a GVWR of 10,000 pounds or less. It does not apply to certain types of trucks, including "forward control vehicles," even if they have a GVWR of less than 10,000 pounds.

The District Court concluded that NHTSA's decision to exclude forward control vehicles from the reach of the standard preempted plaintiff's product liability action. In our view, this conclusion is both factually and legally incorrect.

First, the focus by the parties and the court on the agency's rationale for excluding "forward control" trucks with a GVWR of less than 10,000 pounds from the reach of FMVSS No. 212 is misguided, since the GVWR of the vehicle involved in this crash was greater than 10,000 pounds. As with almost all of its safety standards, NHTSA did not explicitly consider applying FMVSS No. 212 to heavy trucks, regardless of whether they were forward control vehicles.

More generally, although we agree that a NHTSA decision not to regulate can preempt state common law actions, see Arkansas Elec. Co-op Corp. v. Arkansas Public Serv. Comm'n, 461 U.S. 375, 384 (1983), it will do so only where the intent to preempt is "clear and manifest." See Toy Mfrs. Of America, Inc. v. Blumenthal, 986 F.2d 615, 622-623 (2d Cir. 1992), citing Hillsborough County v. Automated Medical Lab., Inc.,

471 U.S. 707, 718 (1985). Here, there was no such intent, and none was indicated in any of the documents issued by the agency during its consideration of this standard.⁽³⁾

The regulatory materials quoted in the District Court's opinion indicate that the primary basis for NHTSA's exclusion of forward control vehicles (with a GVWR of less than 10,000 pounds) was a concern that it would not be "practicable" for such vehicles to comply with the existing standard.⁽⁴⁾ In no way did this reflect a NHTSA conclusion that efforts by maufacturers of forward control vehicles to reduce the possibility of ejections through the windshield (either by satisfying the performance requirements of the standard or through other means) would have an adverse impact on safety. Rather, it reflected a NHTSA determination that applying FMVSS No. 212 to such vehicles would not be appropriate in light of the statutory criteria for FMVSSs set out in Chapter 301.

A decision not to regulate on this basis does not in itself "preempt the field." In other words, while the exclusion of certain vehicles from the reach of FMVSS No. 212 relieves the manufacturers of those vehicles from any duties with respect to windshield retention under Chapter 301, it does not immunize those manufacturers from a duty of care that might be imposed under state law.⁽⁵⁾

Thus, as noted above, we believe that the District Court's opinion is incorrect. However, to our knowledge, this is the first case in which a court has improperly concluded that a NHTSA decision not to regulate an aspect of performance of certain vehicles preempts a state common law action seeking damages based on an alleged failure with respect to that aspect of performance. Therefore, in keeping with NHTSA's long-standing policy of minimizing its involvement in private tort litigation, we believe that it would not be appropriate to participate formally in this case. In the unlikely event that this erroneous view of the scope of "negative" Federal preemption proliferates in the future, the agency may decide to participate in a subsequent case.

Thank you for bringing this matter to our attention.

Sincerely,

John Womack

Acting Chief Counsel

cc: Wayne F. Plaza, Esq.

Bruce R. Pfaff, Esq.

ref: 103(d)#108(k)

NCC-10:KWeinstein:August 9, 1996; revised:August 16, 1996

Printed: August 26, 1996 (cyb)

1. "When a motor vehicle safety standard is in effect under this chapter, a State . . . may prescribe or continue in effect a standard applicable to the same aspect of performance of a motor vehicle . . . only if the standard is identical to the standard prescribed under this chapter. . . ."

2. "Compliance with a motor vehicle safety standard prescribed under this chapter does not exempt a person from liability at common law."

3. Although we cannot anticipate all possibilities, it is likely that NHTSA would "negatively" preempt state law only if it concluded that a specific item or design feature would have an adverse effect on motor vehicle safety. For example, if NHTSA had decided that headrests above a certain size should not be required because they would interfere with driver visibility, a claim by a plaintiff that a manufacurer's failure to equip a vehicle with a larger headrest led to neck injuries would be preempted, even in the absence of an explicit ban on such headrests.

4. Pursuant to 49 U.S.C. 30111(a), each FMVSS "shall be practicable, meet the need for motor vehicle safety, and be stated in objective terms."

5. NHTSA takes no position on whether the windshield retention system in this particular vehicle was "unreasonably dangerous" or what duty of care a state might reasonably impose through its common law. (Presumably, NHTSA's views on the technological options avilable to manufacturers of forward control vehicles would be considered by courts and juries considering those issues.) Similarly, NHTSA takes no position on whether this crash led to a "foreseeable impact," as alleged by plaintiff, or on the relevance, if any, of the facts that the plaintiff apparently was not seated in a designated seating position and apparently was not wearing a safety belt.

ID: nht76-2.7

DATE: 05/05/76

FROM: AUTHOR UNAVAILABLE; F. Berndt; NHTSA

TO: Blue Bird Body Company

TITLE: FMVSS INTERPRETATION

TEXT: This responds to Blue Bird Body Company's March 29 and 31, 1976, and April 14, 1976, requests for confirmation of several interpretations you have made regarding the new safety standards for school buses and the definition of "school bus" as they become effective in October 1976.

Your interpretation is correct that "bus passenger compartment" as used in S5.2.3.1 of Standard No. 217, Bus Window Retention and Release, means that portion of the bus that is rearward of the forwardmost point on the windshield.

Your request confirmation that the requirement in S5.7(a) of Standard No. 220, School Bus Rollover Protection, to open emergency exits during the application of force to the bus roof are inappropriate and therefore not applicable in the case of roof exits. Your interpretation is correct, and the NHTSA intends to modify the language of Standard No. 220 appropriately.

You request confirmation that the knee impact requirement of S5.3.2.1 of Standard No. 222, School Bus Passenger Seating and Crash Protection, does not apply to the rear row of seating in a school bus because there is no passenger seating behind this row. Your interpretation is correct. I would like to point out that the seat back of the rear row of seating also is not subject to the requirements of S5.3.1.1 for the same reason. You are also correct that "school bus passenger seat" as defined in S4 does not include a wheelchair that is placed in a school bus to transport non-ambulatory bus passengers. Our response on other issues concerning special arrangements for handicapped passengers will be forthcoming as a response to the outstanding Sheller-Globe petition for reconsideration of Standard No. 222.

In your March 31, 1976, letter you asked whether a bus that is sold for purposes that include carrying kindergarten and nursery school children to and from school or related events would be considered a school bus under the redefinition of "school bus" that becomes effective October 27, 1976 (40 FR 60033, December 31, 1975). The answer to your question is yes, because the statutory definition underlying the NHTSA definition of school bus specifically lists preprimary students as passengers of school buses. See 15 U.S.C. @ 1391(14).

In your April 14, 1976, letter you ask whether the requirement of S5.3.1.3 of Standard No. 222 for a minimum "contact area" on a described spherical head form refers to the area of actual contact on the surface of the spherical head form, or the area of contact on the head form as seen in projected view. The "contact area" refers to the area of actual contact on the surface of the head form.

SINCERELY,

BLUE BIRD BODY COMPANY March 29, 1976

Thomas W. Herlihy Office of Chief Counsel National Highway Traffic Safety Administration

We have several questions requiring interpretations for recently issued safety standards which apply to school buses.

FMVSS 217

S5.2.3.1 states in part "Each school bus shall provide at the manufacturer's option one emergency door on each side in the rear half of the bus passenger compartment . . .". We need a definition of the term "bus passenger compartment." Are we correct in assuming that this means the front of front windshield to the back of the bus body so that the engine hood on a Conventional type school bus is effectively eliminated? This in effect would define the bus passenger compartment as the "box" which the passengers occupy. We feel that this is the most workable definition of the term since any other definition would have to reference some other bus component which would not be easily identified in all bus configurations.

FMVSS 220

S4b states in part "each emergency exit of the vehicle provided in accordance with Standard 217 (571.217) shall be capable of opening as specified in that standard during the full application of the force and after release of the force . . .".

S5.7a states in part "In the case of testing under the full application of force, open the emergency exits as specified in S4b while maintaining the force applied in accordance with S5.4 and S5.5."

These requirements seem unrealistic and indeed practically impossible with respect to roof emergency exits. As written the force application plate would have to have an access hole through which the roof emergency exit would open. Obviously, roof emergency exits will be in different protions of the bus for different bus sizes and, therefore, would necessitate a variety of complicated force application plates. More importantly would be the questionable meaning of such a test since the configuration of the access hole in the force application plate would significantly affect the deflection in the area of the roof emergency exit. This, of course, would affect the operation of the emergency exit as far as latch forces and opening forces are concerned. In addition, this requirement does not seem to be realistically required in accident situations. The only time a roof load would be imposed is when the bus is in the rolled over orientation. Obviously, in this condition passengers would not be able to use roof emergency exits and would choose one of the other emergency exits that are required on all bus configurations.

We, therefore, request that roof emergency exits need not be tested during the application of the roof load but rather before and after the application of the roof load. Because of the timing involved, we must proceed on this assumption in order to meet tooling deadlines for the October 26 effective date.

We request your written approval of this approach and rulemaking action which would clarify this requirement.

FMVSS 222

We are somewhat unsure of the requirements of S5.3.2.1 with respect to knee impact requirements for the last row of seats in a bus. As we understand this requirement the rearmost seat in a bus does not have to meet the knee impact requirements on its seat back since there will be no occupants behind it. These are special seats because of the rear emergency door exit requirements of FMVSS 217 and, therefore, require special tooling. We are committing tooling on this assumption and request your concurrence.

From previous conversations with NHTSA personnel it is our understanding that wheelchair seating positions in buses for transporting handicapped students need not meet the requirements of FMVSS 222. For buses which have occupant positions for both wheelchair confined passengers and ambulatory passengers we are assuming that the seating and barrier requirements of FMVSS 222 only apply to those ambulatory passengers who will occupy a standard type school bus passenger seat. In other words, we are assuming that the definition of "school bus passenger seat" in FMVSS 222 does not apply to a wheelchair in a school bus.

We feel that there will be many questions regarding the applicability of FMVSS 222 to handicapped buses in the future. Some general guidelines form NHTSA concerning this matter should be considered.

May we have your early written reply to each of these matters?

W. G. Milby Staff Engineer

BLUE BIRD BODY COMPANY

April 14, 1976

Tad Herlihy Office of Chief Counsel National Highway Traffic Safety Administration

SUBJECT: FMVSS 222

We need an interpretation on Paragraph S5.3.1.3, head form force distribution, of the subject standard. The last sentence of this paragraph reads: "Where any contactable surface within such zones is impacted by the head form from any direction at 5 feet per second, the contact area on the head form surface shall be not less than three square inches."

Do the words "contact area" refer to the spherical contact area on the head form or the projected contact area?

W. G. Milby Staff Engineer

BLUE BIRD BODY COMPANY

March 31, 1976

Thomas W. Herlihy Office of Chief Counsel National Highway Traffic Safety Administration

Part 571, Docket No. 75-24; Notice 02, Redefinition of "School Bus."

The question has arisen as to whether a bus that carries kindergarten and nursery school children would be defined as a "school bus."

Thanks for a ruling on this matter.

W. G. Milby Staff Engineer

ID: 22250

Trooper Dene Kay
Utah Highway Patrol
P.O. Box 1112
St. George, UT 84771





Dear Trooper Kay:

This responds to your letter to this agency regarding Federal standards on "altering" motor vehicles, specifically with regard to taillights, door handles, and windshield wipers. I will begin with some background information on National Highway Traffic Safety Administration (NHTSA) standards and then address each of your questions in turn.

Background

Chapter 301 of Title 49, United States Code (the Act), authorizes NHTSA to issue safety standards for new motor vehicles and new motor vehicle equipment. All motor vehicles and items of motor vehicle equipment manufactured or imported for sale in the U.S. must comply with all applicable Federal Motor Vehicle Safety Standards (FMVSS) set forth in 49 CFR Part 571. Manufacturers of motor vehicles must certify compliance of their products in accordance with 49 CFR Part 567, Certification (copy enclosed). Also enclosed is a brochure entitled "Information for New Manufacturers of Motor Vehicles and Motor Vehicle Equipment," which includes a listing of FMVSS that apply to different vehicle type classifications.

Persons altering a new motor vehicle prior to its first retail sale to a consumer are considered vehicle alterers under NHTSA's certification regulation, 49 CFR 567.7, Requirements for Persons who Alter Certified Vehicles. A person who alters a previously certified motor vehicle must affix an additional certification label to the vehicle which states that the vehicle, as altered, conforms to all applicable FMVSS.

Manufacturers, distributors, dealers, or motor vehicle repair businesses modifying a motor vehicle after its first retail sale are prohibited by 49 U.S.C. 30122 from knowingly making inoperative any device or element of design installed on or in a motor vehicle or item of motor vehicle equipment in compliance with an applicable FMVSS. However, the "make inoperative" provision does not prohibit consumers from modifying their own vehicles, even if such modifications adversely affect the compliance of the vehicle with the FMVSS. Such modifications may, nevertheless, be regulated by State law.

I will now address each of your specific questions.

Taillights

You state that individuals are installing clear taillight lenses with no red reflectors. The Federal requirements for motor vehicle lighting equipment are established by FMVSS No. 108 (49 C.F.R. 571.108), Lamps, Reflective Devices and Associated Equipment, which applies to lighting equipment on new vehicles and replacement equipment for that original lighting equipment. Paragraph S5.8, Replacement Equipment, of FMVSS No. 108 requires lighting equipment manufactured to replace original lighting equipment to be designed to conform to FMVSS No. 108.

Table I and Table III of FMVSS No. 108 require reflex reflectors (on the rear and the sides of the vehicle at the rear), tail lamps, and stop lamps to be red in color. The color red is defined by Society of Automotive Engineers (SAE) Standard J578c, Color Specifications for Electric Signaling Devices, February 1977, which S5.1.5 of Standard No. 108 incorporates by reference. Thus, the manufacture of clear lenses or lamps intended to replace lenses or lamps whose original color of light emitted was red is a violation of S5.8 of FMVSS No. 108, and the manufacture, importation, and sale of clear lenses or lamps for these purposes is a violation of 49 U.S.C. 30112. You also state that these taillight lenses do not have red reflectors; this too would be a violation.

If a noncompliant lamp or lens is installed as original equipment, the vehicle manufacturer is in violation of FMVSS No. 108. If a noncompliant lamp or lens is installed by a manufacturer, dealer, distributor, or motor vehicle repair business as a replacement item, that entity is in violation of 49 U.S.C. 30122. Note, however, that no federal laws or safety standards prohibit an owner of a vehicle from installing the clear lenses, even if the installation renders inoperative the compliance of the vehicle with an applicable safety standard.

You should note that many lamps such as you describe have been recalled. Many were also missing side markers and side reflectors in red.

Whether it is legal to drive a vehicle with clear lenses installed by the vehicle's owner is a question to be answered under the laws in effect where the vehicle is driven. While we cannot provide an opinion about Utah law, we note that our search of the Utah administrative code showed Rule R714-200-3, "Standards for Vehicle Lights and Illuminating Devices," incorporates FMVSS No. 108 as the standard governing motor vehicle lighting equipment. Thus, it appears that motor vehicle lighting equipment that does not comply with FMVSS No. 108 may also be illegal for use in your state.

Door Handles

You state that individuals are removing vehicles' outside door handles and replacing them with hidden switches to open the doors. FMVSS No. 206 (49 C.F.R. 571.206), Door Locks and Door Retention Components, applies to new motor vehicles and includes requirements that may affect this type of modification. The standard does not require that motor vehicle doors have outside door handles. However, the standard does require each motor vehicle door to "be equipped with a locking mechanism with an operating means in the interior of the vehicle." (49 C.F.R. 571.206, S4.1.3). When the locking mechanism on the side front door is engaged, "the outside door handle or other outside latch release control shall be inoperative." (S4.1.3.1, emphasis added). When the locking mechanism on the side rear door is engaged, "both the outside and inside door handles or other latch release controls shall be inoperative." (S4.1.3.2, emphasis added).

We consider the hidden switches you described in your letter to be "other latch release controls." Thus, these hidden switches must be inoperative when the locking mechanism on the doors is engaged.

If these hidden switches are installed by an alterer prior to first sale, then the alterer must certify that the vehicle continues to comply with all of the safety standards affected by the alteration. If the switches are installed by a manufacturer, distributor, dealer, or motor vehicle repair business after first sale, the installation must not render inoperative the compliance of the vehicle with any applicable safety standard, including FMVSS No. 206. However, no federal laws or safety standards prohibit an owner of a vehicle from installing the switches, even if the installation renders inoperative the compliance of the vehicle with any applicable safety standard. Such a modification could, however, be regulated by State law.

Windshield Wipers

You also state that individuals are removing vehicles' windshield wipers and replacing them with "just one large wiper." FMVSS No. 104 (49 C.F.R. 571.104), Windshield Wiping and Washing Systems, specifies windshield wiper requirements for new passenger cars, multipurpose passenger vehicles, trucks, and buses.

The essential feature of a windshield wiper system, from a safety standpoint, is its ability to clear a specific portion of the windshield. The number of wipers necessary to provide the driver with a sufficient field of view is not specified in FMVSS No. 104. Therefore, the number of wipers is immaterial so long as the minimum percentages of critical areas are cleared.

All of the aforementioned vehicles must have a power-driven windshield wiping system that meets specific frequency or speed requirements, e.g., cycles per minute, as identified in the standard. FMVSS No. 104 requires that passenger car windshield wiping systems wipe that specified percentages of the critical windshield areas defined in that standard and SAE Recommended Practice 903a, May 1966. As you will see in copies of the enclosed documents, defining these critical windshield areas is a complex process.

Additionally, FMVSS No. 104 requires that passenger cars, multipurpose passenger vehicles, trucks, and buses have windshield washing systems. A passenger car's windshield washing system in conjunction with its associated wiping system shall clear the critical windshield areas identified above. For multipurpose passenger vehicles, trucks, and buses, the standard states that the critical windshield areas may be specified by the vehicle manufacturer.

The number of windshield wipers required is not specified by this standard.

If the single wiper described in your letter is installed by an alterer prior to first sale, then the alterer must certify that the vehicle continues to comply with all of the safety standards affected by the alteration. If the wiper is installed by a manufacturer, distributor, dealer, or motor vehicle repair business after first sale, the installation must not render inoperative the compliance of the vehicle with any applicable safety standard, including FMVSS No. 104. However, no federal laws or safety standards prohibit an owner of a vehicle from installing the wiper, even if the installation renders inoperative the compliance of the vehicle with any applicable safety standard. Such a modification could, however, be regulated by State law.

I hope you find this information helpful. If you have any further questions, please contact Mr. Dion Casey in my office at (202) 366-2992.

Sincerely,

John Womack
Acting Chief Counsel

Enclosures
ref:104
d.3/8/01

ID: 2405y

His Excellency
D. H. Burney
Ambassador of Canada
501 Pennsylvania Ave., N.W.
Washington, D.C. 20001

Dear Mr. Ambassador:

Thank you for your letter of March 16, 1990, expressing the concern of your country about this agency's new regulations on importation of motor vehicles and equipment.

Canada is concerned that, under P.L. l00-562, the Imported Vehicle Safety Compliance Act of l988, Canadian vehicle brokers, dealers, and private citizens will not, for all practical purposes, be able to export new or used Canadian market vehicles to the United States. It is concerned further that Canadian individuals and firms will be precluded from providing conformance goods and services for vehicles exported to the United States. Canada therefore requests that this agency modify its regulations with respect to Canadian market vehicles, recognizing their near-compliance with the Federal Motor Vehicle Safety Standards, and accommodating their entry in the least costly and burdensome manner. You have five specific requests, and I shall address each.

Preliminarily, I want to note several things. First, my assurance that this agency gave very careful consideration to the concerns of Transport Canada in adopting final regulations under the 1988 Act, as well as those expressed by Canadian companies that commented on the proposed regulations. As we noted in the notices proposing and adopting those regulations, our discretion to make changes in the regulations was narrowly circumscribed in many instances by the detailed language of that Act. On a more technical level, I want to note that your understanding of our new regulations expressed in paragraphs (a) through (g) on page 2 of your letter is essentially correct. However, with respect to your paragraph (d), please note that determinations of vehicle eligibility for importation may also be made by me as Administrator on my own initiative, and need not be pursuant to a petition. Also, as to paragraph (e), I would like to point out that the bond processing fee, proposed to be $125, is only $4.35 (however, under paragraph (f) the bond is not less than l50% of the dutiable value of the vehicle).

Your first request is that the agency "recognize Canadian market vehicles as a special class of non-complying vehicles requiring only minor changes to meet the FMVSS." The l988 Act was enacted on October 31, l988, and became effective January 31, l990. I regret to say that none of its provisions authorize the agency to directly distinguish between non-complying vehicles of Canadian manufacture and those originating in other countries.

However, the eligibility provisions that you reference in paragraph (d) do permit a basis for minimizing some of the burden that the l988 Act imposes. We begin with the premise that if a Canadian vehicle has not been certified by its manufacturer as in conformance with U.S. standards, then it cannot be presumed to conform in all respects to the U.S. standards. Canadian and U.S. safety standards do differ in some ways (e.g., mandatory automatic crash protection for U.S. market passenger cars manufactured on and after September 1, l989). Nevertheless, we believe that enough similarity may exist to support a finding that a Canadian passenger car is "substantially similar" to a U.S. passenger car, justifying a determination that it is eligible for importation into the United States, and capable of conversion to meet U.S. safety standards. Further, such a finding may be made on our own initiative. I am pleased to inform you that NHTSA is publishing a notice of tentative determination that would cover all passenger cars certified as meeting the Canadian Motor Vehicle Safety Standards, and that were manufactured up to September 1, l989. A copy of the notice is enclosed for your reference. After receiving and considering public comment, we will make a final decision on this matter. If we decide to adopt our tentative determination as a final determination, your first request would, in effect, be granted.

Your second request is that we "exempt such vehicles from the fees." These fees are the ones mentioned in paragraphs (c), (d), and (e) of your letter, the registered importer annual registration fee, the vehicle eligibility petition fee, and the bond processing fee. Each fee is specifically required by the l988 Act, and must be established in advance of the fiscal year in which it is effective. The registered importer fee is required to cover agency costs for administration of the registration program. The vehicle eligibility fee is required to cover the agency's costs in making and publishing eligibility determinations. The bond processing fee is required to reimburse the U.S. Customs Service for its costs in processing the agency's conformance bond that accompanies each nonconforming vehicle. Congress provided no authority to waive these fees, or to modify them during the fiscal year that they are in effect. Thus, the fees that have been established must remain in effect until October 1, l990. When we begin the review that will lead to next year's fees, we shall be happy to consider whether some provision may be made for Canadian market vehicles. In the meantime, I would like to point out that under our notice of tentative determination on eligibility of Canadian vehicles, the fee of $l,560 would cover the blanket determination of all passenger cars, and would not be applied to each individual model and model year of passenger car. This action would effectively moot Canada's second request that Canadian market passenger cars be exempted from the determination fee.

Canada's third request is to "exempt them from the bonding requirement." The l988 Act requires the importer of a non-conforming vehicle to furnish an appropriate bond to ensure that the vehicle will be brought into compliance, or will be exported or abandoned to the United States. This is not a new requirement; ever since January 1, l968, each nonconforming vehicle, Canadian or otherwise, has been required to be accompanied by a conformance bond upon its entry into the United States. The l988 Act provides us with no authority to exempt Canadian vehicles, and does not distinguish degrees of nonconformity. Therefore, we believe that we are unable to grant Canada's request, absent specific authorization by the U.S. Congress.

The fourth request is to "exempt them from the requirement that they be imported by registered importers, who must be U.S. citizens." This request raises two issues: whether Canadian market cars may be imported by persons other than registered importers, and whether registered importers must be U.S. citizens. As to the first issue, the l988 Act does allow one alternative to direct importation by a registered importer. That is, a person other than a registered importer may import a nonconforming vehicle if he has a contract with a registered importer to perform conformance work. This would allow a Canadian citizen to import a Canadian market car, without himself becoming a registered importer.

The second issue is whether a Canadian company is permitted to be a registered importer. We believe that a registered importer is a person who is physically present in the territory in which importation occurs, as opposed to an exporter, who is outside that territory. While we are not conversant with the laws of the individual States, we believe that a Canadian company could qualify to do business within an individual State, and become a registered importer. Thus, it is not necessary to be a U.S. "citizen", but it is necessary to be subject to U.S. jurisdiction. The l988 Act requires the registered importer regulation to contain requirements for recordkeeping, and inspection of records and facilities. Since the jurisdiction of the National Traffic and Motor Vehicle Safety Act does not extend beyond the boundaries of the United States, we believe that it would be difficult to enforce our provisions on inspection of premises, documents, etc. in the territory of another country.

This brings us to your fifth and final request, that we "allow modifications to be done in either the United States or Canada." Under current regulations, conformance work is permitted to be performed outside the United States. However, vehicles modified in this fashion must be admitted under the same procedures as if they had not been modified. This allows the agency to review the documents on pre-importation conversion work, to ensure that it has been satisfactorily accomplished, before the conformance bond is released. Accordingly, we believe that the concern underlying this request has already been accommodated.

If, after reviewing this letter, you have further suggestions for reducing the burdens that the new law may have imposed on importations of Canadian-manufactured vehicles, I would be happy to consider them.

Sincerely,

Jerry Ralph Curry

Enclosure ref:59l#592#593#594 d:4/24/90

ID: 2794o

Mr. Koji Tokunaga
Manager, Engineering
Isuzu Motors America, Inc.
21415 Civic Center Drive
Southfield, MI 48076-3969

Dear Mr. Tokunaga:

This letter responds to your inquiry in which you ask a number of questions concerning Federal motor vehicle safety standard (FMVSS) 124, Accelerator Control Systems. I apologize for the delay in this response. In your letter, you describe a new accelerator control system that operates through electrical rather than mechanical signals.

You state that the moving components of this system are the accelerator pedal, stepping motor arm, linkage, and the throttle lever. When a driver depresses the accelerator pedal, a pedal sensor converts the displacement into a proportional electric signal. The signal goes through a control unit to a position switch, and then to a stepping motor. This stepping motor works to move the motor's arm and linkage, and they in turn work the throttle lever. Therefore, you say, the engine speed is controlled in proportion to the amount of accelerator pedal displacement.

You further inform us that Isuzu already has distributed vehicles equipped with this system in Japan, and that the company would like to market this kind of vehicle in the United States. You present three questions and a diagram of the system components, and request an agency response.

First, please be aware that in issuing this interpretation, NHTSA is neither approving, certifying, nor endorsing your new accelerator control system. Under the National Traffic and Motor Vehicle Safety Act, each manufacturer must certify that its product meets agency safety standards, or other applicable standards. However, based on the information you supplied in your letter, I have the following responses.

Question I: In this vehicle, Isuzu considers the battery that drives the stepping motor to be one of the energy sources under S5.1, and the return springs (accelerator pedal and throttle lever return springs) the other sources. Is this interpretation correct? We do not have enough information to state whether the battery that drives the stepping motor, or the return springs would be considered energy sources under S5.1. Section S5.1 of Standard 124 requires, among other things, that there be a minimum of two energy sources capable of returning the throttle to idle whenever the driver removes the opposing actuating force, or if there is a single severance or disconnection in the accelerator control system.

With respect to the battery, if all system elements are operating properly, then it would appear that removing the actuating force will cause the electrical circuit from accelerator pedal sensor to stepping motor to return the throttle to idle. On the other hand, if there is a failure caused by a severance or disconnection in the accelerator control system between the pedal and the stepping motor, it is not clear to me whether the stepping motor will return to zero, and bring the throttle springs back to idle; or lock the arm and linkage in an "open-throttle" position.

Similarly, it is not clear to me that the accelerator pedal and throttle return springs are capable of returning the throttle to idle in the event of a failure caused by an ACS severance or disconnection. (While you include the throttle lever in your description of the accelerator control system, the agency considers it as part of the fuel metering device. However, as NHTSA explained in the preamble to 124, an energy source under the Standard may be attached to the fuel metering device. [37 FR 20033, September 23, 1972.]) Ordinarily, the agency would have no difficulty in finding that either of the throttle return springs is an energy source capable of returning the throttle to idle. But I cannot tell from your description and diagram whether a severance or disconnection in the electrical system would cause the throttle to lock in a position other than idle.

I would make the same observation with respect to the accelerator pedal. I can not tell from the information you supplied what impact a severance or disconnection failure would have on the pedal. For example, it is not apparent whether some element in the electrical system senses a severance or disconnection in the accelerator control system, so that a sensor transmits a signal to the appropriate energy sources that the throttle should return to idle. If the pedal and return springs can operate mechanically and in concert to return the throttle to idle in the event of a failure in the accelerator control system caused by a severance or disconnection, then together they may be an energy source under the Standard.

Question 2a: Is a severance in electric wires in this system a severance or disconnection within the meaning of S5.2? Isuzu considers negative because electric wires are not a moving part.

A severance or disconnection of the electric wires in this system would be a severance or disconnection within the meaning of S5.2 of Standard 124.

Section S4.1 of Standard 124 defines a "driver-operated accelerator control system" as "all vehicle components, except the fuel metering device, that regulate engine speed in direct response to movement of the driver-operated control and that return the throttle to the idle position upon release of the actuating force."

You stated in your letter that, in this new system, when the driver depresses the accelerator pedal, the mechanical displacement is converted into electrical signals. These electrical signals are transmitted by wires to a control unit that regulates engine speed in direct response to pressure on the accelerator pedal, again by means of wires that connect the control unit's electrical signal to the appropriate components. Thus, the control unit, all of the components to which it is connected, and the wires that make those connections are "vehicle components ... that regulate engine speed in direct response to movement of the driver-operated control and that return the throttle to the idle position upon release of the actuating force." Under S4.1, then, the control unit, the components to which it is connected, and the wires that make the connection are components of the driver-operated accelerator control system.

Section S5.2 of Standard 124 requires that the throttle return to idle "from any accelerator position or any speed...whenever any one component of the accelerator control system is disconnected or severed at a single point." Please note that this language does not limit the requirement to disconnections or severances of components that are moving parts. Thus, all severances or disconnections of any component of the accelerator control system are within the ambit of the standard. In this case, since the wires are a component of the accelerator control system, the throttle must return to idle whenever a wire is disconnected or severed.

Question 2b: If a severance in electric wires were a severance or disconnection under S5.2, what about a short-circuiting that may result from such a severance? Does the Standard require that the throttle returns to the idle position even in such a condition?

Yes. Section S5.2 of Standard 124 requires the throttle to return to the idle position whenever any component of the accelerator control system is disconnected or severed at a single point, regardless of the other consequences of the disconnection or severance. In the case of this system, this language requires the throttle to return to idle when any wire is severed, even if the severance results in a short circuit.

Question 2c: Our understanding is that a failure (other than severance or disconnection) of a system component itself (i.e. a failure in the accelerator pedal sensor with pedal position switches, control unit, throttle valve position switch, or stepping motor) is not subject to the throttle return requirement under the Standard. Is this correct?

Your understanding is partially correct. Standard 124 addresses those circumstances where (1) the driver removes the opposing actuating force; and (2) a severance or disconnection in the ACS causes a failure. Therefore, you are correct that Standard 124 addresses only those failures resulting from a severance or disconnection within the system. However, for electrical systems, shorted or open circuits are the consequence of a change in one or more of the electrical components in the system. The agency would consider such a change a disconnection or severance in the context of this Standard.

Question 3: It is our interpretation that the battery and the electric wires from the battery to the control unit are not a part of the accelerator control system under this definition. (That is, the definition of "driver-operated accelerator control system.") Is this interpretation correct?

No, your interpretation is incorrect. We have set out the definition of "driver-operated accelerator control system" in section S4.1 above, in response to your Question 2a. With respect to your electrical accelerator control system, the electrical impulse that travels between the vehicle battery and the control unit is a direct consequence of the driver's applying an actuating force to the accelerator pedal. Given this aspect of your system's design, both the vehicle battery and the electric wires from the battery to the control unit fall within the definition of "driver-operated accelerator control system."

I hope you find this information helpful.

Sincerely,

Erika Z. Jones Chief Counsel

ref:124 d:8/8/88

ID: 1984-1.8

TYPE: INTERPRETATION-NHTSA

DATE: 02/01/84

FROM: AUTHOR UNAVAILABLE; Frank Berndt; NHTSA

TO: The Honorable Dick Cheney -- House of Representatives

TITLE: FMVSS INTERPRETATION

TEXT:

Dear Mr. Cheney:

This responds to your recent letter to this agency, seeking comments on a constituent's letter concerning seating on school buses and the use of activity buses. Essentially, Mr. Krisko, your constituent, stated that the seating on school buses presents comfort problems on long distance trips, particularly for high school buses athletes, and asked why schools are not permitted to own "Trailways" type buses for use on these long distance trips. Mr. Krisko noted that Federal Law now permits the use of such buses only if they are leased by the schools or if the bus was manufactured before the comprehensive school bus safety standards became effective in 1977. As is more fully explained below, the answer is that the National Traffic and Motor Vehicle Safety Act, as amended (hereinafter referred to as "the Act"), together with the safety standards for school buses (which the Act required this agency to issue) require that buses which are significantly used to transport school children to and from school-related events must be certified as meeting those safety standards. "Trailways" type buses as currently manufactured cannot be certified as doing such, and therefore cannot be so used.

In 1974, Congress passed the School Bus and Motor Vehicle Safety Amendments (Pub. L. 93-492; hereinafter referred to as "the Amendments"). The Amendments added to the Act the following definition of a school bus: "a passenger motor vehicle which is designed to carry more than 10 passengers is addition to the driver, and which...is likely to be significantly used for the purpose of transporting primary, preprimary, or secondary school students to or from such schools or events related to such schools;...(15 U.S.C. 1391(14)). (Emphasis added). Those Amendments also provided that, not later than 15 months after they were enacted, the National Highway Traffic Safety Administration had to promulgate minimum performance standards for specified aspects of safety performance. The Amendments specified further that these standards "shall apply to each school bus and item of school bus equipment which is manufactured in or imported into the United States on or after April 1, 1977." (15 U.S.C. 1392(i)(1)(8))

Prior to this legislative action, many school districts had used so-called "activity buses" to transport students to and from extracurricular activities. The floor debates on the Amendments show that Congress was aware of this practice, yet chose to specify a broad definition of school bus, so as to require vehicles used solely for extracurricular activities to meet the same safety standards as those used to transport the children to and from school. This decision was partially based on the fact that 150 children were killed in 1971 in school bus accidents (see 120 Cong. Rec. HB120, daily ed., August 12, 1974). The statistics since the Amendments were passed indicate that Congress' goal of greatly reducing these fatalities has been accomplished by the school bus safety standards promulgated by this agency. In 1981, the last year for which complete statistics are available, there were 10 fatalities in school bus accidents.

The October 26, 1983 resolution passed by the Wyoming Association of Secondary School Principals (WASSP), which was enclosed with MR. Krisko's letter, contains a statement which suggests that the group may not be accurately informed about the origin of the current requirements for school buses.

The WASSP resolved that present administrative definitions be changed to allow schools to own commercial-type buses to transport school children to extracurricular activities. The language in our administratively-adopted for that purpose follows the statutory definition of that term. Without a change by Congress in the statutory definition, the administrative definition must remain as it is.

With respect to the issue of seat spacing, last year this agency amended Standard No. 222 to permit maximum seat spacing of 24 inches instead of teh 21 inches previously specified (48 FR 12384, March 24, 1983). This step could be taken to improve the comfort of those buses without compromising the level of safety afforded the occupants. During that rulemaking action, this agency considered allowing reclining seats similar to those used in commercial-type vehicles, but concluded that reclining seats could not provide the same level of safety protection as is provided by upright seats spaced 24 inches apart. Accordingly, this type of seating was not permitted. I understand Mr. Krisko's concern that such seating would be more comfortable on long trips. I hope that he understands that the agency carefully looked at the available date. In the agency's judgment, the date indicated that these seats would not be as safe if the bus were involved in an accident.

If you have any further questions or need more information on this subject, please do not hesitate to contact me.

Sincerely, Original Signed By Frank Berndt Chief Counsel Enclosure Ms. Carole Walls Congressional Relations Officer National Highway Transportation Safety Administration Department of Transportation Room 10406 400 7th Street, S.W. Washington, D.C. 20590

Dear Ms. Walls:

I have received the enclosed information from the President of the Wyoming Association of Secondary School Principals.

Mr. Krisko expresses his concern about regulations pertaining to the use of activity buses. He explains the special problems created by the regulations in a state as large as Wyoming, where some of the school trips are as long as 350 miles one way.

Any information you might be able to provide on this matter would be most appreciated.

Thank you very much for your assistance.

Best regards, Dick Cheney Member of Congress Enclosure

The Honorable Richard Cheney Room 4003 Federal Building Casper, WY 82601

Dear Representative Cheney:

The Wyoming Association of Secondary School Principals recently passed a resolution regarding the use of activity buses in our state. Other western states have also come up against similar problems, which can be summarized as follows:

Federal laws specify types of seating which may be used on buses used to transport students, regardless of the activity. The seats must be fixed (non-reclining) and may have a maximum 24" between seats. For normal school bus runs (to and from school) there is little problems; on long distance but also a safety problem. It is our opinion that regular" school buses are not designed for long distance travel, particularly with large high school athletes. Some of our trips are 350 miles, one way. There are two ways around the Bus Standards: "Trailways" type buses may be leased from another owner, or may be purchased by a school district if manufactured prior to 1977, when the standards became effective. The latter option leads to the purchase of older vehicles, possible unsafe. Some school districts lease a bus from a local recreation district, essentially owning the bus since recreation districts often are set up under statute by school boards. This however, is not possible in many communities. Some districts have taken a chance and purchased commercial-type buses, but are open to lawsuits in the event of an accident.

We are in communication with Mr. Ivan Gluckman, Legal Counsel for the National Association of Secondary School Principals, regarding this matter. Accompanying this letter are:

a) A copy of a resolution passed by WASSP, October 26,1983 b) Copies of correspondence with Ivan Gluckman c) Copies of some Federal Memoranda regarding school buses

We would appreciate your help in this matter. Other State Associations are being contacted.

Sincerely, Robert M. Krisko, President Wyoming Association of Secondary School Principals Thermopolis Middle School

Resolution from WASSP Wyoming Association of Secondary School Principals regarding Activity Buses.

Whereas: Students in Western States must travel long distances to participate in school related activities.

and Whereas: Regular school buses are not appropriate for long distance travel in terms of comfort storage of luggage and equipment, or safety

and Whereas: Under the Federal regulations school districts may lease commercial-type buses for activities but not own them

and Whereas: Availability of such leasing is unavailable in many locations

BE IT RESOLVED that the WASSP recommends that present administrative definitions be changed to allow ownership of such vehicles for use on activity trips.

Passed October 26, 1983. Robert M. Krisko, President WASSP

ID: nht89-3.54

TYPE: INTERPRETATION-NHTSA

DATE: 12/13/89

FROM: JIM EVANS -- QUALITY CONTROL DEPT., THE BARGMAN COMPANY

TO: STEVEN P. WOOD -- ACTING CHIEF COUNSEL, NHTSA

TITLE: NONE

ATTACHMT: ATTACHED TO LETTER DATED 02-26-90 TO JIM EVANS, THE BARGMAN CO., FROM STEPHEN P. WOOD, NHTSA; (REDBOOK) A35; VSA 103(D); STD. 108

TEXT: My company manufactures lighting products for the recreational vehicle industry and we are in need of an interpretation of the rules in FMVSS 108 concerning the use of reflex reflectors on the rear of vehicles. I can find in this standard where two (2) red reflex reflectors are required on the rear of a vehicle (Tables I, II, III, IV) but I cannot find anything in the standard that would prohibit the use of any other color reflectors that could be used in addition to the red reflectors.

Specifically, we manufacture a red taillight lens that has a reflex reflector area around the outer edge of the lens. The stop, turn and tail, as well as the reflex functions all exceed the minimum requirements for these functions.

One of our customers has asked us to mold this same lens in yellow so that it could be used for the turn signal function. It would be mounted side by side with the red unit which would now be used for only stop and tail functions. The problem now arise s where both the yellow and red lens would be visable to traffic approaching from the rear. I checked with a local State Police Post here in Michigan, and they were able to find a section in the State Code that clearly states that reflectors mounted on the rear of a vehicle shall reflect a red color (I am enclosing a copy of this section for your reference). As I stated in my opening paragraph, I cannot find an equivalent ruling in the National standard. I am hoping that your office may have already addressed this problem in the past and that a ruling is already in effect.

My questions are two-fold: First, is it legal to put any other color reflector on the rear of a vehicle as long as the red reflectors are also present? Secondly, if in fact this situation is illegal (which I believe it probably is), could the National st andard be amended to show this fact and eliminate future confusion? Whichever way is correct, I would like to request a written statement to that effect as well as any supporting documentation for the ruling.

I am looking forward to hearing from you as soon as possible so that we can clear this matter up once and for all. Thank you.

Enclosure

(d) On every trailer or semitrailer having a gross weight in excess of 3,000 pounds:

On the front, 2 clearance lamps, 1 at each side.

On each side, 2 side marker lamps, 1 at or near the front and 1 at or near the rear.

On each side, 2 reflectors, 1 at or near the front and 1 at or near the rear.

On the rear, 2 clearance lamps, 1 at each side, also 2 reflectos, 1 at each side, and 1 stop light.

(e) On every poletrailer:

On each side, 1 side marker lamp and 1 clearance lamp which may be in combination, to show to the front, side or rear.

On the rear of the poletrailer or load, 2 reflectors, 1 on each side.

(f) On every trailer or semitrailer weighing 3,000 pounds gross or less:

On the rear, 2 reflectors, 1 on each side if any trailer or semitrailer is so loaded or is of such dimensions as to obscure the stop light on the towing vehicle, then such vehicle shall (Illegible Words) with 1 stop light

(g) When operated on the highway, every vehicle which has a maximum potential speed of 25 miles an hour implement of husbandry, farm tractor or special mobile equipment shall be identified with a reflective device as follows:

An equilateral triangle in shape, at least 16 inches wide at the base and at least 14 inches in height, with a dark red border, at least 1 3/4 inches wide of highly reflective beaded material;

A center triangle, at least 12 1/4 inches on each side of yellow orange fluorescent materials.

The device shall be mounted on the rear of the vehicle, broad base down, not less than 3 feet not more than 5 feet above the ground and as near the center of the vehicle as possible. The use of this reflective device is restricted to use on slow movi ng vehicles specified in this section, and use of such reflective device on any other type of vehicle or stationary object on the highway is prohibited.

On the rear, at each side, red reflectors or reflectorized material visible from all distances within 500 to 50 feet to the rear when directly in front of lawful upper beams of headlamps.

Am. 1988, Act 383.

CI 257.689 Clearance and marker lamps and reflectors; color. [MSA 9.2389]

Sec. 689. (a) Front clearance lamps and those marker lamps and reflectors mounted on the front or on the side near the front of a vehicle shall display or reflect an amber color.

(b) Rear clearance lamps and those marker lamps and reflectors mounted on the rear or on the sides near the rear of a vehicle shall display or reflect a red color.

(c) All lighting devices and reflectors mounted on the rear of any vehicle shall display or reflect a red color, except the stop light or other signal device, which may be red or amber, and except that the light illuminating the license plate-shall be white.

CI 257.690 Same; mounting [MSA 9.2390]

Sec. 690. (1) Reflectors shall be mounted at a height not less than 15 inches and not higher than 60 inches above the ground on which the vehicle stands, except that if the highest part of the permanent structure of the vehicle is less than 15 inches , the reflector at such point shall be mounted as high as that part of the permanent structure will permit.

(2) The rear reflectors on a pole-trailer may be mounted on each side of the bolster or load.

(3) Any required red reflector on the rear of a vehicle may be incorporated with the tail lamp, but such reflector shall meet all the other reflector requirements of this chapter.

(4) Clearance lamps shall be mounted on the permanent structure of the vehicle in such a manner as to indicate its extreme width and as near the top thereof as practicable. Clearance lamps and side marker lamps may be mounted in combination if illumi nation is given as required herein with reference to both.

Am. 1988, Act 383.

CI 257.691 Same; visibility. [MSA 9.2391]

Sec. 691. (a) Every reflector upon any vehicle referred to in section 689 of this chapter shall be of such size and characteristics and so maintained as to be readily visible at nighttime from all distances within 500 to 50 feet from the vehicle when directly in front of lawful upper beams of headlamps. Reflectors required to be mounted on the sides of the vehicle shall reflect the required color of light to the sides, and those mounted on the rear shall reflect a red color to the rear.

(b) Front and rear clearance lamps shall be capable of being seen and distinguished under normal atmospheric conditions at the times lights are required at a distance of 500 feet from the front and rear, respectively, of the vehicle.

(c) Side marker lamps shall be capable of being seen and distinguished under normal atmospheric conditions at the times lights are required at a distance of 500 feet from the side of the vehicle on which mounted.

CI 257.692 Combination vehicles obstructed lights. [MSA 9.2392]

Sec. 692. Whenever motor and other vehicles are operated in combination during the time that lights are required, any lamp (except tail lamps) need not be lighted which, by reason of its location on a vehicle of the combination, would be obscured by another vehicle of the combination, but this shall not affect the requirement that lighted clearance lamps be displayed on the front of the foremost vehicle required to have clearance lamps, nor that all lights required on the rear of the rearmost vehicl e of any combination shall be lighted.

ID: nht93-1.22

DATE: 01/29/93

FROM: JOSEPH S. KAPLAN -- ROSS & HARDIES

TO: JOSEPH S. KAPLAN -- ROSS & HARDIES

TITLE: REQUEST FOR A LEGAL INTERPRETATION NEW FLYER INDUSTRIES, INC.

ATTACHMT: ATTACHED TO LETTER DATED 2-12-93 FROM JOHN WOMACK TO JOSEPH S. KAPLAN (A40; PART 568; PART 591)

TEXT: On behalf of New Flyer Industries Limited of Winnipeg, Manitoba, Canada, ("NFIL") we request a legal interpretation that bus shells which NFIL manufactures at its plant in Winnipeg and exports to an affiliated manufacturer, New Flyer of America (N.D.) Inc., ("NFND") for completion and delivery are exempt from the statutory prohibition against importing noncomplying motor vehicles and items of vehicle equipment and are exempt from bonding, and that the shells are admissible under 49 CFR 591.5 (e). The basis for this claim is that the shells require further manufacturing operations other than the addition of readily attachable equipment items and minor finishing operations to perform their intended function.

Facts

NFIL produces five models of bus shells (forty foot-diesel, forty-foot trolley bus, sixty-foot diesel, low floor diesel, and sixty-foot trolley bus) at its Winnipeg plant for exportation to NFND in Grand Forks, North Dakota. As exported, the shells are painted and equipped with tire and rim assemblies. The average standard labor hours to build the shell is 800 hours. At Grand Forks the shells are further manufactured into completed New Flyer buses. The final stage work undertaken in Grand Forks represents more than 50% of the production cost of the completed buses.

Major components added in the United States in the final building stage include bumpers, engine and oil filter (or propulsion system), power plant, starter system, cooling system, fuel system, interior lighting, electric system, destination signs, seating and stanchions, heating and air conditioning system, chair lift (except on low floor buses) and various option packages. Average standard labor hours expended in North Dakota to complete a bus from an imported shell are 300.

Thus, final stage operations clearly require significant and complex assembly operations, and constitute much more than the addition of readily attachable equipment components. The final stage labor input is a significant percentage (on average 27%) of total bus construction time, and the work done is necessary to convert the shell to a bus capable of performing its intended function.

Among the components added to diesel buses in the United States is the power plant. New Flyer buses are equipped with U.S.-made engines and transmissions which are delivered by the manufacturers directly to the Grand Forks assembly facility. In Grand Forks, the engines are mounted on engine cradles assembled in Grand Forks from subcomponents manufactured in Canada. The activity in the United States required to prepare and install the engines and transmissions requires the use of skilled labor and consumes 75 standard labor hours. The work cannot properly be described as the simple installation of an engine shipped separately from an otherwise complete bus or one requiring no more than the addition of mirrors, tires and rims.

Trolley bus shells require more or less the same second stage effort. The chief difference is merely that the propulsion system is based on a United States made electric motor and gear box rather than a diesel engine and transmission.

NFND is a final stage original equipment motor vehicle manufacturer. New Flyer buses which it completes and delivers to customers must, and do, conform to all applicable safety standards and are certified as in conformity with such standards.

Discussion

Although it is obvious that NFIL's shells are subject to the National Traffic and Motor Vehicle Safety Act of 1966 (the "Act"), a determination as to whether the shells are either vehicles or equipment is necessary. As noted in the Facts section, there is no power train in the imported shells. As a result, the shells do not meet the definition of "incomplete vehicle" in 49 C.F.R. @ 568.3, which requires as a minimum, in addition to other features, all of which are presented in the imported shells, the presence of a power train.

There are two approaches to dealing with this request. Your office may either determine that NFIL shells are incomplete vehicles within the meaning of 49 C.F.R. @ 568.3, and direct the Customs Service to permit the importation of the shells as noncomplying motor vehicles or it may determine that the shells are motor vehicles or items of motor vehicle equipment within the scope of 15 U.S.C. @ 1397(e) and 49 C.F.R. @ 591.5(e), and direct Customs to permit their importation exempt from conformance and bonding. We believe that the second alternative is the sounder approach.

Treatment of the shells as either vehicles or equipment was specifically contemplated in the Notice of Proposed Rule Making proposing the addition of a new Part 591 to Title 49 C.F.R. (54 Fed. Reg. 17772 April 25, 1989). In connection with proposed section 491.5(e), NHTSA explained that it is intended to implement new section 108(e) of the Act as amended by the Imported Vehicle Safety Compliance Act of 1988, P.L. 100-562, and in turn that new section 108(e), encompassing vehicles and equipment requiring further manufacture to perform their intended function, broadens the pre-existing exception from conformance available to vehicles built in two or more steps. Also the NPRM noted the practice of offering for importation vehicles without engines or other running gear parts, which NHTSA had treated as de facto importations of noncomplying motor vehicles, and specifically mentioned that such importations are now covered by section 108(e). Further, in a discussion in the same NPRM of motor vehicle equipment importations, the agency commented:

Under new section 108(e), an equipment item need not comply on importation if it requires further manufacturing to perform its intended function.

Clearly, therefore NFIL shells come within NHTSA's existing understanding of exempt articles under section 108(e) and this understanding is consistent with the plain meaning of both the statute and the regulation. Having so concluded however, it is still necessary to determine whether for the purpose of 49 C.F.R. @ 591.6(b) the shells are subject to the documentation requirements of @ 591.6(b) (1) (if vehicles) or @ 591.6(b)(2) (if equipment).

We have expressed our preference that the shells be deemed equipment rather than incomplete vehicles. There are two reasons. First, that would eliminate the need to deviate and explain away the deviation from the definition of incomplete vehicle in 49 C.F.R. @ 568.3. Second, it would reduce the paperwork burden on NFIL without compromising the beneficial purposes of the Act. NFIL does not contend that the shells are equipment to which no standard applies, and the commercial circumstances of their importation provide assurances that they will be brought into conformity in the course of final-stage manufacture. Thus the problems which caused NHTSA to treat imports without engines as vehicles despite the definitional requirements of section 568.3 are not present, and such de facto treatment is unnecessary. With regard to the documentation requirements of 49 C.F.R. @ 568.4 applicable to incomplete vehicles, the information required will be furnished when the completed buses are sold and delivered. Thus there is no harm or threat of harm to the public interest in permitting NFIL to enjoy the less burdensome documentary requirements of 49 C.F.R. @ 591.6(b)(2).

Requested Interpretation

For the foregoing reasons, we request that you hold that New Flyer forty and sixty foot diesel bus shells, low floor diesel bus shells and forty and sixty foot trolley bus shells are exempt from the bonding and conformance requirements of section 108(a) (1) (A) of the National Traffic and Motor Vehicle Safety Act of 1966, 15 U.S.C. 1397(a) (1) (A) pursuant to section 108(e) of the Vehicle Safety Act as amended by the Imported Vehicle Safety Compliance Act of 1988, P.L. 100-562, and may be declared on entry as vehicles or equipment items requiring further manufacturing operations to perform their intended function, other than the addition of readily attachable equipment items, or minor finishing operations, pursuant to 49 C.F.R. Part 591 and section 591.5(e) thereof. Based on the facts presented we request that you find that New Flyer bus shells are equipment items which require further manufacturing operations to perform their intended functions, and, thus, are exempt on compliance with the appropriate documentary requirements of 49 C.F.R. @ 591.6(b) applicable to items of vehicle equipment.

New Flyer bus shells covered by a @ 591.5(e) declaration will be accompanied by an appropriate written statement issued by NFIL.

Should any question exist concerning NFIL's entitlement to the requested determination, we will appreciate being notified and provided with an opportunity to discuss the issues with you and to amplify the record.