ID: 2637o

Mr. E. W. Dahl
Vice President
Goodyear Tire and Rubber Company
Akron, Ohio 443l6-000l

Dear Mr. Dahl:

This responds to your letter concerning the tire marking requirements of Standard No. ll9, New Pneumatic Tires for Vehicles Other Than Passenger Cars. You asked whether the standard would prohibit the following size designations from being marked on the tire:

385/65R22.5 REPLACES l5R22.5

425/65R22.5 REPLACES l6.5R22.5

445/65R22.5 REPLACES l8R22.5

As discussed below, it is our opinion that the above markings are prohibited by Standard No. ll9.

The marking requirements for tires subject to Standard No. 119 are set forth in section S6.5 of the standard. Section S6.5(c) requires that each tire be marked on both sidewalls with "the tire size designation as listed in the documents and publications designated in S5.1."

As noted by your letter, NHTSA recently provided an interpretation letter to Michelin, dated July 9, l987, concerning one of the exact sizes included in your request. The agency stated the following:

In a broader sense, the practice of labeling two tire sizes on one tire, as you requested in your letter, was once a fairly common practice and was referred to as "dual-size markings." Dual-size markings were a marketing effort by tire manufacturers to try to persuade consumers to change the size and/or type of tire on their vehicles, by representing that this particular tire size was an appropriate replacement for two different sizes of tires. However, the practice of using dual-size markings confused many consumers about the size of the tire on their vehicle. The only purpose of the Federally required markings on tires is to provide consumers, in a straightforward manner, with technical information necessary for the safe use and operation of the tire. The agency concluded that it was inappropriate to permit a marketing technique that was confusing many consumers to defeat the purpose of the required markings on tires. Accordingly, dual-size markings were expressly prohibited for passenger car tires subject to Standard No. 109; 36 FR 1195, January 26, 1971.

While Standard No. 119 does not expressly prohibit dual-size markings, section S6.5(c) uses the singular when it refers to the "tire size designation" to be labeled on the tire. Considering the past history associated with dual-size markings, this agency interprets section S6.5(c) of Standard No. 119 as prohibiting a manufacturer from marking a tire with two different size designations, even if a document or publication designated in S5.1 were to show two different size designations for the same tire size.

The tire size marking at issue in the Michelin interpretation differs from your proposed marking in that it did not include the word "replaces." You stated the following:

In the case at hand, the metric size tires are dimensionally equivalent to the sizes being replaced, and have equal or greater load capacity. There is bona fide intent that the replacement sizes will in due course supersede the replaced sizes in terms of production and marketing. We wish to emphasize that the markings in question are not intended as an effort by Goodyear to persuade consumers to change the size and/or type of tires mounted on their vehicles.

As indicated in our letter to Michelin, the only purpose of the Federally required markings on tires is to provide consumers, in a straightforward manner, with technical information necessary for the safe use and operation of the tire. Any practice of using dual-size markings has the potential for confusing consumers about the size of the tire on their vehicle, since consumers may erroneously believe that a particular tire can be considered as meeting fully the criteria of more than one tire size designation. For example, a consumer seeing a tire marking that size A replaces size B might erroneously believe that it is appropriate to replace size A with size B.

You cited a l974 notice of proposed rulemaking (NPRM) for Standard No. l09 which stated that NHTSA believed that the providing of replacement size information on the tire itself was advantageous to consumers. See 39 FR l0l62.

I would note several things about the background and subsequent history of that NPRM. The NPRM indicated that despite the clear language in Standard No. l09 that each tire must be labeled with "one size designation, except that equivalent inch and metric size designations may be used," NHTSA had previously taken the position [in interpretation letters] that replacement markings constituted an exception to this requirement. (Emphasis added.) The interpretation letters had not offered any basis for concluding that this exception existed. (See June 8, l97l letter to Mercedes-Benz; January l9, l972 letter to Kelly-Springfield; March 2, l973 letter to Samperit.)

The NPRM sought to "clarify the labeling requirements of Standard No. l09, to allow, subject to certain conditions, the labeling of replacement tire size designations." However, the NPRM was not adopted as a final rule. We also note that while the l97l-72 interpretation letters cited above do not appear to have been expressly overruled, our February 7, l980 interpretation letter to Michelin (copy enclosed) concluded that Standard No. l09 prohibited replacement markings.

NHTSA has never interpreted Standard No. ll9 to permit any type of dual size markings, including replacement markings. Based on the reasoning presented in our July 9, l987 interpretation letter to Michelin, and the additional discussion presented above, we conclude that Standard No. ll9 prohibits a manufacturer from marking a tire with two different size designations, even if the word "replaces" is used.

Sincerely,

Erika Z. Jones Chief Counsel

Enclosure ref:l09#ll9 d:1/7/88

ID: 2637y

Ms. Betsy Dittemore
Legislative Liaison
Iowa Department of Public Safety
Office of the Commissioner
Wallace State Office Building
Des Moines, Iowa 50319

Dear Ms. Dittemore:

Thank you for your letter regarding a bill introduced in the Iowa Senate that, among other features, would establish light transmittance limits for "sunscreening devices" that may be applied to the windows of motor vehicles operated in Iowa. I apologize for the delay in this response. You requested our office's interpretation about whether provisions of this bill would violate or be preempted by Federal Motor Vehicle Safety Standard No. 205, Glazing Materials (49 CFR 571.205).

As you are aware, this agency is authorized by section 103 of the National Traffic and Motor Vehicle Safety Act (15 U.S.C. 1392) to issue safety standards applicable to new motor vehicles and certain items of motor vehicle equipment. One of the standards that we have issued under this authority is Standard No. 205, which applies to all new vehicles and all new glazing materials for use in motor vehicles. Among the requirements set forth in Standard No. 205 are specifications for minimum levels of light transmittance (70 percent light transmittance in areas requisite for driving visibility, which includes all windows in passenger cars).

Section 108(a)(1)(A) of the Safety Act (15 U.S.C. 1397(a)(1)(A)) specifies that no person may manufacture, import, or sell any vehicle in the United States unless it is in conformity with all applicable safety standards. Pursuant to section 108(b)(1) of the Safety Act (15 U.S.C. 1397(b)(1)), this prohibition no longer applies after the vehicle is sold to a consumer. However, both before and after the first sale, section 108(a)(2) of the Safety Act (15 U.S.C. 1397(a)(2)) 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 notor vehicle or item of motor vehicle equipment in compliance with an applicable Federal motor vehicle safety standard . . . ."

In the case of windows on a passenger car, this provision of Federal law means that no manufacturer, dealer, distributor, or repair business could install window tinting film that would result in a light transmittance of less than 70 percent for any window of the car, because such action would "render inoperative" the vehicle's compliance with Standard No. 205. This same provision of Federal law prohibits a service station from permanently removing safety belts or permanently disconnecting brake lines on motor vehicles.

Please note that the Safety Act does not apply to the actions of vehicle owners. Vehicle owners may alter their own vehicles and operate them on the highways as they please, even if the vehicle's windows no longer comply with the requirements of Standard No. 205. Hence, no provision of a Federal statute or this agency's regulations prevents individual vehicle owners themselves from tinting the windows on their vehicles.

The individual States, however, have the authority to regulate the modifications that vehicle owners may make to their own vehicles and to establish requirements for vehicles operated or registered in that State. The Iowa Senate bill enclosed with your letter appears to be an attempted exercise of this inherent authority.

You asked for comments on whether this bill, if adopted as law in Iowa, would be preempted by Standard No. 205. I assume you were referring to the provision in this Iowa bill that would prohibit the operation of motor vehicles required to be registered in the State of Iowa if the vehicle has a "sunscreening device" on the front side windows with light transmittance of less than 35 percent or on the rear window and side windows behind the driver with light transmittance of less than 20 percent. Since the original glazing on the vehicle could have had light transmittance of as little as 70 percent, this provision would permit overall light transmittance levels of as low as 25 percent for the front side windows and 14 percent for the rear windows.

This provision in the Iowa bill, and similar provisions in statutes adopted by other States, does not purport to legitimize conduct -- the rendering inoperative of glazing by firms installing window tinting -- that is illegal under Federal law. In other words, firms installing window tinting that results in light transmittance of less than 70 percent on any window of a passenger car would have violated the "render inoperative" provision in Federal law, even if Iowa had in place a statute that would permit persons to operate and register vehicles whose windows had light transmittance that was far lower. Conversely, the Federal law setting requirements for the manufacture and sale of new vehicles and limiting the modifications commercial enterprises can make to those vehicles does not prohibit the State of Iowa from establishing lesser limits on owner modifications to their own vehicles and as the minimum requirements for vehicles to be operated and registered in the State of Iowa.

Thus, there does not appear to be any legal conflict between Federal law and this Iowa bill, and Iowa would be free to enforce the provisions of this bill if it is enacted into law. We would, however, urge the State of Iowa to carefully consider the adverse safety consequences that would result from enacting this bill into law. NHTSA has determined that a 70 percent light transmittance minimum for new vehicles is the appropriate level to assure motor vehicle safety. Your letter indicated that Iowa had also adopted this 70 percent light transmittance minimum as a State requirement for new vehicles. It is not clear why the State of Iowa would conclude that the safety need that justifies requiring not less than 70 percent light transmittance in new vehicles is satisfied by allowing light transmittance levels as low as 25 and 14 percent in vehicles to be operated in the State.

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

Sincerely,

Paul Jackson Rice Chief Counsel

/ref:205#VSA d:7/30/90

ID: 2638o

Mr. Koji Tokunaga
Manager, Engineering
Isuzu Motors America, Inc.
2l4l5 Civic Center Drive
Southfield, MI 48076-3969

Dear Mr. Tokunaga:

This responds to your letter asking about Federal Motor Vehicle Safety Standard No. l0l, Controls and Displays, as amended by a final rule published in the FEDERAL REGISTER (52 FR 3244) on February 3, l987. We apologize for the delay in our response. You described a proposed design for a radio and asked whether the requirements of section S5.3.5 would apply to the source of illumination for the radio and, if so, whether your design would meet those requirements. The following represents our opinion based on the facts provided in your letter.

As discussed below, the requirements of section S5.3.5 would apply to the source of illumination for your planned radio. Your current design would meet the requirements of that section.

You described your planned radio as follows:

In the case of the radio to be installed on our vehicle, radio display is automatically illuminated when radio switch is turned "on." Likewise, when the switch is turned "off," this display is automatically extinguished. This illumination is a single intensity, but the intensity is not "barely discernible to a driver who has adapted to dark ambient roadway conditions."

The current language of section S5.3.5, which reflects an amendment made by a final rule published in the FEDERAL REGISTER (52 FR 334l6) on September 3, l987, is as follows:

S5.3.5 Any source of illumination within the passenger compartment which is forward of a transverse vertical plane 4.35 inch (ll0.6 mm) rearward of the manikin "H" point with the driver's seat in its rearmost driving position, which is not used for the controls and displays regulated by this standard, which is not a telltale, and which is capable of being illuminated while the vehicle is in motion, shall have either (l) light intensity which is manually or automatically adjustable to provide at least two levels of brightness, (2) a single intensity that is barely discernible to a driver who has adapted to dark ambient roadway conditions, or (3) a means of being turned off. This requirement does not apply to buses that are normally operated with the passenger compartment illuminated.

The first issue raised by your letter is whether section S5.3.5 would apply to your proposed design. The answer to that question is yes. You suggested that the section might not apply, since "display illumination turns 'on' or 'off' simultaneously with the 'on' or 'off' operation of radio switch irrespective of vehicle motion." However, section S5.3.5's limitation of applicability to sources of illumination which are "capable of being illuminated while the vehicle is in motion" does not refer to illuminations which are provided only when the vehicle is in motion but instead incorporates all sources of illumination which are "capable" of being illuminated while the vehicle is in motion.

The second issue raised by your letter is whether your proposed design meets the requirements of section S5.3.5. You suggested that the "off" switch of the radio would be "a means of being turned off," under that section. We agree with your suggested interpretation. Section S5.3.5 requires that the "source of illumination" have either (l) light intensity which is manually or automatically adjustable to provide at least two levels of brightness, (2) a single intensity that is barely discernible to a driver who has adapted to dark ambient roadway conditions, or (3) a means of being turned off. As discussed in the preamble to the February 3, l987 final rule, the purpose of providing section S5.3.5's three options was to meet concerns raised by commenters, while maintaining essential limits on glare. Although a driver may use the radio while driving at night, he or she will have the means to remove the radio as a source of glare by turning the radio off. In our view, this meets section S5.3.5's third option.

Sincerely,

Erika Z. Jones Chief Counsel ref:101 d:1/7/88

ID: 16854.nhf

Mr. Jurgen Babirad
Rehabilitation Technology Associates, Inc.
P.O. Box 540
Kinderhook, NY 12106

Dear Mr. Babirad:

This responds to your letter requesting information regarding the modification of a 1997 Ford E150 van for a driver with quadriplegia secondary to a spinal cord injury. Specifically, you request a waiver of Federal Motor Vehicle Safety Standard 208, Occupant Crash Protection, as the modifications proposed for this particular vehicle will require replacing the original equipment manufacturer's (OEM) steering wheel with a smaller steering wheel. The new steering wheel would be too small to be fitted with an air bag. You explained that the smaller steering wheel is needed to accommodate the driver's limited range of motion. I regret the delay in my response.

While the National Highway Traffic Safety Administration (NHTSA) cannot provide the specific relief you seek, since we are not authorized to grant waivers of safety standards under these circumstances, we can assure you that we will not institute enforcement proceedings against a commercial entity that modifies the steering wheel and column on a vehicle to accommodate the condition you described.

We would like to begin by explaining that NHTSA is authorized to issue Federal motor vehicle safety standards that set performance requirements for new motor vehicles and items of motor vehicle equipment. Manufacturers are required to certify that their products conform to our safety standards before they can be offered for sale. After the first sale of a vehicle, manufacturers, distributors, dealers, and repair businesses are prohibited from "knowingly making inoperative" any device or element of design installed on or in a motor vehicle in compliance with an applicable standard. In general, the "make inoperative" prohibition (49 U.S.C. 30122) requires businesses which modify motor vehicles to ensure that they do not remove, disconnect, or degrade the performance of safety equipment installed in compliance with an applicable standard. Violations of this prohibition are punishable by civil penalties of up to $1,100 per violation.

There is no procedure by which businesses petition for and are granted permission from NHTSA to modify a motor vehicle. Businesses are permitted to modify vehicles without obtaining permission from NHTSA to do so, but are subject to the make inoperative provision of 49 U.S.C. 30122. In certain limited situations, we have exercised our discretion in enforcing our requirements to provide some allowances to a business which cannot conform to our requirements when making modifications to accommodate the special needs of persons with disabilities.

Standard No. 208, Occupant Crash Protection, requires vehicles to be equipped with specific manual and automatic restraint systems (e.g. seat belts and air bags) and to meet specified injury criteria during a test. Removing the original steering wheel and air bag and replacing it with a smaller steering wheel that lacks an air bag would affect the vehicle's compliance with Standard No. 208. In situations such as yours where a vehicle must be modified to accommodate the needs of a particular disability, we have been willing to consider violations of the "make inoperative" prohibition to be justified by public need. As I have already noted above, NHTSA will not institute enforcement proceedings against a business that modifies the steering wheel and air bag to accommodate the condition you describe.

We caution, however, that only necessary modifications should be made. In addition, you should consult with the manufacturer to determine how to disarm the air bag. The manufacturer should be able to provide information on how the modification can be safely performed. We are enclosing a warning label stating that the air bag has been deactivated. For the safety of everyone who may ride in the vehicle, we ask that you affix this label on the sun visor above the deactivated air bag. Finally, if the vehicle is sold, we urge the owner to advise the purchaser that the vehicle has been modified and consider reinstalling the removed safety equipment if appropriate.

If you have other questions or require additional information, please contact Nicole Fradette of my staff at this address or by phone at (202) 366-2992.

Sincerely,
John Womack
Acting Chief Counsel
Enclosure
Warning Label
ref:VSA#208
d.5/22/98

ID: 16855.nhf

Mr. Jurgen Babirad
Rehabilitation Technology Associates, Inc.
P.O. Box 540
Kinderhook, New York 12106

Dear Mr. Babirad:

This responds to your letter requesting information regarding modification of a 1997 minivan for a driver with muscular dystrophy. I regret the delay in responding. You request a waiver of Federal Motor Vehicle Safety Standard 208, Occupant Crash Protection, as the modifications proposed for this particular vehicle will require the removal of the original equipment manufacturers (OEM) steering wheel. In a telephone call with Nicole Fradette of my staff, you explained that your client has limited range of motion due to his disability. You explained that your client needs to replace the OEM steering wheel and air bag with a high-tech steering system that incorporates a reduced diameter steering wheel and reduced effort steering. The new steering wheel would be too small to be fitted with an air bag.

While the National Highway Traffic Safety Administration (NHTSA) cannot provide the specific relief you seek, since we are not authorized to grant waivers of safety standards under these circumstances, we can assure you that we will not institute enforcement proceedings against a commercial entity that modifies the steering wheel and column on a vehicle to accommodate the condition you described.

We would like to begin by explaining that NHTSA is authorized to issue Federal motor vehicle safety standards that set performance requirements for new motor vehicles and items of motor vehicle equipment. Manufacturers are required to certify that their products conform to our safety standards before they can be offered for sale. After the first sale of the vehicle, manufacturers, distributors, dealers, and repair businesses are prohibited from "knowingly making inoperative" any device or element of design installed on or in a motor vehicle in compliance with an applicable standard. In general, the "make inoperative" prohibition (49 U.S.C. 30122) requires businesses which modify motor vehicles to ensure that they do not remove, disconnect, or degrade the performance of safety equipment installed in compliance with an applicable standard. Violations of this prohibition are punishable by civil penalties of up to $1,100 per violation.

There is no procedure by which businesses petition for and are granted permission from NHTSA to modify a motor vehicle. Businesses are permitted to modify vehicles without obtaining permission from NHTSA to do so, but are subject to the make inoperative provision of 49 U.S.C. 30122. In certain limited situations, we have exercised our discretion in enforcing our requirements to provide some allowances to a business which cannot conform to our requirements when making modifications to accommodate the special needs of persons with disabilities.

Standard No. 208, Occupant Crash Protection, requires vehicles to be equipped with specific manual and automatic restraint systems (e.g. seat belts and air bags) and to meet specified injury criteria during a test. Removing the original steering wheel and air bag and replacing it with the high tech steering system would affect the vehicle's compliance with Standard No. 208. In situations such as yours where a vehicle must be modified to accommodate the needs of a particular disability, we have been willing to consider violations of the "make inoperative" prohibition to be justified by public need. As I have already noted above, NHTSA will not institute enforcement proceedings against a business that modifies the steering wheel and air bag to accommodate the condition you describe.

We caution, however, that only necessary modifications should be made. In addition, you should consult with the manufacturer to determine how to disarm the air bag. The vehicle manufacturer should be able to provide information on how the modification can be safely performed. We are enclosing a warning label stating that the air bag has been deactivated. For the safety of everyone who may ride in the vehicle, we ask that you affix this label on the sun visor above the deactivated air bag. Finally, if the vehicle is sold, we urge the owner to advise the purchaser that the vehicle has been modified and consider reinstalling the removed safety equipment if appropriate.

If you have other questions or require additional information, please contact Nicole Fradette of my staff at this address or by phone at (202) 366-2992.

Sincerely,
John Womack
Acting Chief Counsel
Enclosure
Warning Label
ref:VSA
d.5/22/98

ID: 16856-1.pja

Mr. Gerald W. Remillard
President
Best Trailer Corporation
3614 Badger Road
Kewaskum, WI 53040

Dear Mr. Remillard:

This responds to your letter requesting an interpretation of whether two tilt bed trailer designs that your company is considering manufacturing would be excluded from the National Highway Traffic Safety Administration's (NHTSA's) rear impact protection (underride guard) regulations. As explained below, trailer design #1 probably is excluded as a low chassis vehicle, while trailer design #2 is not excluded, and a compliant underride guard would need to be provided.

Although you did not give bed height dimensions, the diagrams on the literature you enclosed with your letter indicate that the bottom of the bed on both vehicles is more than 560 mm above the ground. Design #1 has at the rear of the bed a full width vertical cross member, which you refer to as a rear channel, with the tail lamps set within it. This channel extends below the lower surface of the bed of the trailer and you state that its bottom surface is less than 560 mm above the ground. There are also two flip up approach ramps, which you refer to as "flipper ramps," that bridge the gap between the ground and the bed when the trailer bed is tilted, and flip over and lie on top of the trailer bed during transit. Design # 2 has at the back of the bed a triangular full width "approach ramp" that allows cargo equipment to transition from the ground up onto the bed without encountering the "bump" of the edge of the bed. When the bed is placed into the horizontal position, for transit, the approach ramp is mechanically or pneumatically lowered to hang from the rear of the trailer in a near vertical position in which the lower edge of the plate is less than 560 mm above the ground.

Federal Motor Vehicle Safety Standard No. 224, Rear impact protection, requires most trailers and semitrailers weighing over 10,000 pounds to be fitted at the rear with a rear impact (underride) guard meeting the requirements of Standard No. 223, Rear impact guards (49 CFR 571.223 and 571.224, published on January 24, 1996 at 61 FR 2004). However, certain kinds of vehicles are excluded. The only excluded categories that are relevant for the purposes of this letter are low chassis vehicles and special purpose vehicles.

Low chassis vehicles are defined in S4 of Standard No. 224 as "a trailer or semitrailer having a chassis that extends behind the rearmost point of the rearmost tires and a lower rear surface that meets the configuration requirements of S5.1.1 through 5.1.3 of this section." In other words, the chassis itself must satisfy the configuration requirements applicable to a guard when the vehicle is outfitted for transit. The only part of your vehicles that may meet these configuration requirements is the rear channel of Design #1 and the approach ramp of Design #2, so the question becomes whether these are considered to be part of the "chassis" of the vehicles. Chassis is defined in S4 as "the load supporting frame structure of a motor vehicle." There are two elements to this definition that must be satisfied: "load supporting" and "frame structure."

To be considered "load supporting," the frame structure has to support load when the trailer is performing its function. Generally, this means that the structure would have to contribute to supporting the cargo load when the trailer is in transit.

To be considered part of the frame structure, a structural member must be either an integral part of the overall frame structure, or be connected with other frame structural members in a way that is necessary to the structural integrity of the trailer. One factor the agency considers in deciding whether a structural member is part of the frame is its size and strength. Frame structural components often are the major structures defining the shape of the trailer. Although frame structure is not limited to the largest frame components (i.e., the frame rails for most trailers), generally frame components are substantial and have strength similar to other frame components. Moveable components may "lock" into the frame structure sufficiently that they are integral with other frame members-in this situation NHTSA may consider the combined components to be one frame unit. However, the agency also looks at the purpose and function of the structural member in supporting the trailer and its load.

We conclude that the rear channel of Design #1 is part of the chassis. It directly supports the load of the trailer. The rear channel is an integral part of the overall frame structure of the trailer. It is of similar size and strength to the other structural members such as the side rails, and it helps define the boundary of the trailer bed. Since a chassis member meets the configurational requirements of S5.1.1 through S5.1.3, Design #1 is excluded from the underride guard regulations.

Applying these principles to your Design #2, we find that the approach ramp is not part of the chassis. The approach ramp does not meet the "load supporting" aspect of the chassis definition because the approach ramp does not contribute to supporting cargo load. The ramp is also not part of the frame structure of the trailer. The approach ramp does not define the shape of the trailer. Instead, it hangs down from the rear end of the trailer, forming a protrusion from the outline of the trailer bed. Neither the approach plate nor the steel plate arms attaching the approach plate to the sides of the trailer bed are of a similar size or strength to the other frame components. The approach plate is not locked into another frame structural member in any manner, and is not considered integral with another frame member. In consideration of these factors the approach ramp it is not part of the frame structure, but an attachment. The approach ramp is not part of the chassis, and Design #2 is not a low chassis vehicle.

We turn now to the question of whether Design #2 is excluded as a special purpose vehicle. A special purpose vehicle is defined in S4 of FMVSS No. 224 as "a trailer or semitrailer having work-performing equipment that, while the vehicle is in transit, resides in or moves through the area that could be occupied by the horizontal member of the rear underride guard, as defined by S5.1.1 through S5.1.3."⁽¹⁾ Again, the approach ramp is the only part of your Design #2 trailer that, while the vehicle is in transit, resides in the area that could be occupied be the rear underride guard. Therefore, the approach ramp would have to be considered work-performing equipment for the trailer to be excluded.

There is no definition in the standard for "work-performing equipment." In determining the meaning of regulatory language, the first place the agency looks is the plain meaning of the words. In the context which is relevant to this safety standard, "work" is defined as "the transfer of energy from one physical system to another; especially, the transfer of energy to a body by the application of force . . ." "Perform" is defined as "to begin and carry through to completion; do." American Heritage Dictionary of the English Language, 1971. Taken together, NHTSA interprets the words "work-performing" to mean that the equipment must actively perform its function, and that the function must involve exerting force or moving something else. Approach ramps do not perform work in this sense because they merely form a ramp between the ground and the vehicle driving onto the tilt bed.⁽²⁾ Therefore, the approach ramp is not work-performing equipment, and the vehicle does not meet the definition of a special purpose vehicle.

Since your trailer does not meet the definition of an excluded category, it would have to be equipped with an underride guard meeting our standards. We cannot provide specific guidance on how your Design #2 trailer might be redesigned to accommodate a guard. We note, however, that other manufacturers of tilt bed trailers have told us that they have found engineering solutions that would meet the requirements of the standard without compromising the function of their vehicles. Some of them are using guard designs that deploy when in the flatbed configuration and automatically retract when in the tilted configuration.

Another option to consider is whether your approach ramp could "be" the guard. The approach plate already appears to meet the configurational requirements for an underride guard. If it does not currently meet the strength and energy absorption requirements, you might be able to reinforce or otherwise modify the approach ramp sufficiently so that it would pass these requirements. If you can do this, the approach ramp itself could be labeled and certified as a guard under Standard No. 223, Rear impact guards. Perhaps some of these solutions would work for you, as they have for other manufacturers of tilt bed trailers. We emphasize that you, as the manufacturer of the vehicle, are responsible for the vehicle's compliance.

If you have difficulty redesigning your trailer, the agency would consider a petition for temporary exemption from Standard No. 224. Under one of our regulations (49 CFR Part 555), vehicle manufacturers may apply for a temporary exemption from the Federal motor vehicle safety standards. Under Sec. 555.6(a), a manufacturer whose yearly production is not more than 10,000 units may ask for an exemption of up to three years on the basis that compliance would cause it substantial economic hardship and that it has attempted in good faith to comply with the standard from which it has asked to be excused. We have enclosed a copy of Part 555 for your information. We have also enclosed a copy of our regulations relating to the protection of confidential business information. Most of the trailer manufacturers submitting petitions for temporary exemption have requested that their financial information remain confidential.

Please note Part 555 requires the agency to publish a notice in the Federal Register seeking public comment on each exemption petition before a decision can be made on such a request, and then publish a second notice either granting or denying the petition. This process normally takes three to four months from the date of submittal.

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

Sincerely,
John Womack
Acting Chief Counsel
ref:224
d.5/22/98

1. Note that this definition, as quoted, reflects an amendment made in response to petitions for reconsideration of the final rule. An unnecessary reference to pipe equipment containing hazardous materials was eliminated. See 63 F.R. 3654 (January 26, 1998).

2. To the extent that this interpretation is inconsistent with interpretation letters to Mr. Thomas M. Joyce and Mr. R. H. Anderson of Landoll Corporation, interpreting the frame rails of tilt bed trailers as work-performing equipment, those prior interpretations are superceded. The basic answer in those letters did not depend on this point, and the analysis in this letter is more thorough.

ID: 16857.drn

Mr. Howard Magor
Chairman
Aluminum Body Corporation
1600 W. Washington Blvd.
P.O. Box 40
Montebello, CA 90640

Dear Mr. Magor:

This responds to your request for an interpretation whether your company's special purpose aluminum body enclosures, used to provide security and environmental control for electronic systems, are motor vehicles. As explained below, the answer is no.

Your letter states that your enclosures are designed to protect equipment used for data acquisition, satellite monitoring and launch control, earth links, virtual reality training devices, data transmission, and for ground systems such as telescopes and aircraft landing systems. You state that although the enclosures "utilize a semi-trailer format" and are built with commercial trailer undercarriages, they are "for the most part" designed for use on fixed sites. The enclosures' use on the highway "is only incidental to their primary purpose." You further wrote that the enclosures are usually pre-positioned, and supported by four or more leveling jacks, when on the site. The jacks provide stability for the equipment in the enclosures.

In a telephone conversation with Dorothy Nakama of my staff, you explained that once on a work site, the enclosures tend to stay there for months. Your customers move the enclosures only to get to the next job, which is also usually of long duration. You stated that you are aware of an instance where one of your enclosures was placed at the end of an airport runway for several years.

NHTSA's regulations apply only to "motor vehicles," within the meaning of 49 U.S.C. 30102(a)(6). That section defines "motor vehicle" as:

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

Based on your description, we believe that your company's enclosures are not motor vehicles. This is based on the use of the vehicles. The on-highway use of the product is similar to that of mobile construction equipment, such as cranes and scrapers, which the agency has determined are not "motor vehicles." Such equipment typically spend extended periods of time at a single job site and use the highway only to move between job sites. 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 NHTSA's statute, since the on-highway use is more than "incidental.") Your enclosures stay on job sites for extended periods of time (usually for months) and only use the highway to move from site to site. Because their use of the highway is merely incidental and is not the primary purpose for which the vehicles were manufactured, the enclosures are not motor vehicles.

Because they are not motor vehicles, your enclosures need not meet the Federal motor vehicle safety standards (49 CFR Part 571), or any other NHTSA regulation. I note that, if the agency were to receive additional information indicating that the enclosures use the roads more than on an incidental basis, then the agency would reassess this interpretation.

Please note that because a State may require equipment such as your enclosures to be registered, you may wish to contact the State in which your product will be sold or used about any State requirements that may apply.

I hope this information is helpful. If you have any questions, please contact Dorothy Nakama at (202) 366-2992.

Sincerely,
John Womack
Acting Chief Counsel
ref:VSA
d.2/24/98

ID: 16859.wkm

Mr. Donald L. Busey
Director of Dealer Services
Pennsylvania Automotive Association
1925 North Front Street
Post Office Box 2955
Harrisburg, PA 17105-2955

Dear Mr. Busey:

Please pardon the delay in responding to your letter to Walter Myers of my staff in which you asked whether a tractor that is converted to a straight truck is required to be equipped with an antilock brake system (ABS) as required by Federal Motor Vehicle Safety Standard (Standard) No. 121, Air Brake Systems (49 Code of Federal Regulations (CFR) 571.121). In a telephone conversation with Mr. Myers on April 3, 1998, you stated that the trucks in question are new Mack tractors equipped with 3 axles with a 4th new axle normally added in the conversion, and that most are converted to dump or cement trucks.

By way of background information, Chapter 301 of Title 49, U. S. Code (hereinafter Safety Act) authorizes this agency to establish Federal motor vehicle safety standards (FMVSS) for new motor vehicles and new items of motor vehicle equipment. The Safety Act establishes a self-certification system under which manufacturers certify that their products comply with all applicable FMVSSs. This agency enforces the standards after the fact by purchasing vehicles and equipment and testing them for compliance with the standards. The agency also investigates defects relating to motor vehicle safety. If the vehicles or equipment pass, no further action is taken. If they do not pass, or if a manufacturer or the National Highway Traffic Safety Administration (NHTSA) determines that a noncompliance or a safety-related defect exists, the manufacturer must notify the purchasers of the noncomplying or defective product and remedy the problem at no expense to the consumer. Any manufacturer that fails to provide notification of or remedy for a noncompliance or defect may be subject to substantial civil penalties.

NHTSA considers that a motor vehicle or item of equipment is "new" from the date of its manufacture until its first retail sale. Vehicle manufacturers are required to certify that each new vehicle they produce complies, as of the date of manufacture, with all then-applicable FMVSSs. In this case, if a new tractor is converted to a straight truck prior to the vehicle's first retail sale, the company making the conversion would be considered an "alterer" under our regulations. A person who alters a previously certified new vehicle must further certify that the vehicle as altered continues to comply with all applicable FMVSSs. See 49 CFR 567.7 (copy enclosed).

Subparagraph S5.1.6.1(a) of Standard No. 121 requires single-unit vehicles, including "straight trucks," manufactured on or after March 1, 1998 to be equipped with ABS that directly controls the wheels of at least one front axle and the wheels of at least one rear axle. Other axles on the vehicle may be indirectly controlled by the ABS. With respect to truck tractors, subparagraph S5.1.6.1(b) requires that truck tractors manufactured on or after March 1, 1997 be equipped with ABS that directly controls the wheels of at least one front axle and those of at least one rear axle, with the wheels of at least one axle being independently controlled. Again, other axles may be indirectly controlled by ABS.

Under Part 567, an alterer of a tractor manufactured on or after March 1, 1997 must allow the original certification label required by Part 567 to remain on the vehicle, and shall affix an additional label to the vehicle certifying that the vehicle conforms to all applicable FMVSSs affected by the alteration and in effect on a date no earlier than the original date of manufacture nor later than the date the alterations were completed. Thus, if a tractor is altered to a straight truck, the alterer must certify that it meets all applicable FMVSSs for straight trucks as of a date no earlier than the date of manufacture of the tractor nor later than the date of completion of the alteration, or any date in between. If this date is before March 1, 1998, the straight truck would not be required to be equipped with ABS. Further, if either the gross vehicle weight rating or any gross axle weight rating, as altered, are different from those shown on the original certification label, the alterer must provide those modified values.

Also enclosed for your information are fact sheets entitled Information for New Manufacturers of Motor Vehicles and Motor Vehicle Equipment, and Where to Obtain NHTSA's Safety Standards and Regulations.

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

Sincerely,
John Womack
Acting Chief Counsel
Enclosure
Ref:121#VSA#571
d.5/13/98

ID: 16867.ztv

Mr. Clarence Ogrodnick
Power Deck Systems, Inc.
5633 Birch Avenue
Vegreville
Alberta T9C 1J7
Canada

Dear Mr. Ogrodnick:

This is in reply to your fax sent to us on January 6, 1998. Your company manufactures "an after market product in North America . . . a hydraulic power deck made to load and unload cargo such as snowmobiles . . . ." The deck "mounts into the box on all makes of regular shortbox and longbox pick up trucks." You wish to ensure that it meets U.S. Federal regulations "as to width, height, length, and light location specifications" so that you can be certain that your product "is safe and legal everywhere."

There are no U.S. Federal regulations that govern the width, height, and length of your after market hydraulic power deck. Furthermore, as a general rule, the laws that govern the use of after market equipment are those of the individual States, rather than Federal law. As we are not conversant with the laws of the States, I am afraid we cannot advise you on them.

If the hydraulic power deck is added to the pickup truck by a "manufacturer, distributor, dealer, or motor vehicle repair business," under our law this modification must not create a noncompliance with Federal lighting requirements (or any other Federal motor vehicle safety standard with which the truck was manufactured to conform). Removal or obscuration of the lamp are the two principal ways in which noncompliances are created. The addition of a supplementary lamp performing the function of the original in approximately the same location is a way of ensuring that original equipment requirements continue to be met. Note that this compliance restriction applies only to the four entities named, and not to a vehicle owner who installs a power deck without the assistance of a "manufacturer, dealer, distributor or motor vehicle repair business."

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

Sincerely,
John Womack
Acting Chief Counsel
ref:108
d.1/30/98

ID: 169-n-b

Note Book 168

FEDERAL REGISTER NOTICES

Note Book 165

FEDERAL REGISTER NOTICES