ID: 17557.drn

Mr. Harry C. Gough, P.E.
Automotive Engineering Professional Specialist
Connecticut Department of Motor Vehicles
60 State Street
Wethersfield, CT 06161

Dear Mr. Gough:

This responds to your request for an interpretation of Federal Motor Vehicle Safety Standard No. 217's retroreflective tape requirements for school bus rear emergency doors.

You enclose a photograph of a school bus rear exit door which shows that the retroreflective tape above the door opening is interrupted by the words "Emergency Door." Your letter states that the gap caused by the words is 16 inches (40 centimeters) long. In the retroreflective tape outlining each of the two sides of the emergency door, there also are gaps in each of the four corners that would have been formed had the two horizontal tapes and two vertical tapes met. You ask three questions, restated below, about whether gaps are permitted in the tape.

Question 1: Is there an interpretation of the language in S5.5.3 of FMVSS 217 allowing the gap retroreflective tape as heretofore described?

Standard No. 217, Bus emergency exits and window retention and release, specifies emergency exit identification requirements at S5.5. School bus emergency exit identification requirements are at S5.5.3, and state:

(a) Each school bus emergency exit ... shall have the designation "Emergency Door" or "Emergency Exit," as appropriate, in letters at least 5 centimeters high, of a color that contrasts with its background. For emergency exit doors, the designation shall be located at the top of, or directly above, the emergency exit door on both the inside and outside surfaces of the door....

 * * *

(c) Each opening for a required emergency exit shall be outlined around its outside perimeter with a retroreflective tape with a minimum width of 2.5 centimeters and either red, white, or yellow in color ...

In previous NHTSA compliance tests conducted on school buses manufactured by Thomas Built Buses and by Blue Bird Body Company, the agency found gaps in the retroreflective tape similar to what you describe in your letter. NHTSA's Safety Assurance office determined in those tests that the requirements of Standard 217 were not violated. The agency determined that there was not enough space at the top of the exit to place the words "Emergency Door" and the 2.5 centimeter tape without either: (a) taping part of the upper door trim and rivets; or (b) taping over the "School Bus" designation. Both of these alternatives were deemed undesirable. Taping over trim and rivets would likely reduce the wearability of the tape, and taping over the school bus designation would reduce the clarity of the sign. Thus, the gaps were permitted.

Without knowing the exact measurements of your school bus, we cannot make a determination that placement of the tape, as you described, is acceptable. However, if the space is limited as it was on the buses that NHTSA evaluated, then interrupting the tape with the "Emergency Door" designation is an acceptable means for a manufacturer to try to meet both S5.5.3(a) and (c). You can send us the measurements of the vehicle if you wish, for us to further review the matter.

Question 2: If the gaps are allowed then how large of a percentage of a given perimeter edge would be acceptable.

In July 7, 1993 and June 8, 1994 letters to Blue Bird and Van-Con, respectively, NHTSA permitted interruptions in the tape necessary to avoid and/or accommodate curved surfaces and functional components, such as rivets, rubrails, hinges, handles and tail lights. However, NHTSA said that the tape must be able to identify the location of emergency exits to rescuers and increase the on-the-road conspicuity of the bus. Also, the tape must be applied as near as possible to the exit perimeter.  In these letters, NHTSA did not establish a specified "percentage" of an exit perimeter or of a side of a perimeter that must be outlined to be deemed acceptable.

In the school bus emergency door in your photograph, I note that there are gaps in the tape at the four corners where the two horizontal tapes and the two vertical tapes should meet. If there are no rivets or curved surfaces or other impediments to placement of the tape, as described in the July1993 letter to Blue Bird, tape must be applied so that the horizontal tapes and the vertical tapes meet, forming corners.

Question 3: If the size of the gap at the top edge of the rear door, as previously indicated, is interpreted as excessive then can the words "Emergency Door" be relocated to the top half of the door or alternately can a section of retroreflective tape be located immediately above the words "Emergency Door."

As noted in our answer to Question 1, it is possible that the gap is permitted, depending on the measurements of your bus. Concerning your specific question about possibly relocating the emergency door identification, NHTSA has a longstanding interpretation that the emergency door identification can be on the top half of the emergency exit door. (See, September 22, 1978, letter to Mr. Tydings, Thomas Built Buses.)

I note that in a March 16, 1995, letter to you, then-Chief Counsel Philip Recht enclosed copies of our June 8, 1994, letter to Van-Con, Inc., and March 28, 1994, and July 7, 1993, letters to Blue Bird Body Company. For your convenience, I am again enclosing copies of those letters.

I hope this information is helpful. In the future, it would help us in responding to you if you would provide a telephone number at which you can be reached. If you have any questions, please feel free to contact Dorothy Nakama at this address or by telephone at (202) 366-2992.

Sincerely,
Frank Seales, Jr.
Chief Counsel
Enclosures (4 letters)
ref:217
d.9/2/98

ID: 17563.ztv

The Honorable Jon Christensen
House of Representatives
Washington, DC 20515-2702

Dear Mr. Christensen:

Thank you for your recent letter to the Department of Transportation on behalf of your constituent, Sam M. Person of Omaha.

Mr. Person first wrote you complaining of the use of parking lamps as daytime running lamps ("DRLs"). He stated that use of parking lamps while a vehicle is in motion violates Nebraska Statute 60.622. Mr. Person then wrote you stating that Federal Motor Vehicle Safety Standard No. 108 permits the use of turn signal lamps as DRLs, but that "on most vehicles the turn signal lamp and parking lamp are in the same housing and both display an amber lamp." He is unsure how a law enforcement officer can distinguish between the two. He has been informed that Standard No. 108 supersedes state laws.

States are permitted to enact and enforce their own motor vehicle safety standards. However, under 49 U.S.C. 30103(b)((1), a Federal motor vehicle safety standard will preempt any state standard covering the same aspect of performance as the Federal standard that is not identical to it. We see no conflict with Nebraska Statute 60.622. Although Standard No. 108 requires parking lamps as original equipment on passenger cars, it does not prescribe the conditions under which they are to be operated. In fact, the DRL requirements of Standard No. 108 specifically says that parking lamps may not be wired to operate as DRLs (paragraph S5.5.11(a)).

However, Standard No. 108 does permit turn signal lamps to be wired to operate as DRLs. As law enforcement officials become aware of this fact, they will be less likely to confuse a permissible turn signal DRL with a parking lamp that is not permitted to be used when a vehicle is in motion. We are not aware that use of amber turn signal lamps as DRLs has created confusion or a safety problem.

Sincerely,
John Womack
Acting Chief Counsel
ref:108
d.5/22/98

ID: 17569.ztv

Mr. Peter Borne
SuperHero Cars Ltd.
6336 Humboldt Ave. S.
Richfield, MN 55423

Dear Mr. Borne:

This will confirm that we regard as a 1971 motor vehicle the Bat-Mobile you described in your letter of March 12, 1998, as follows:

This is a custom built fiberglass molded body, which has been mounted to a 1971 Chrysler New Yorker Frame. All the running gear and mechanical elements are 1971. The engine . . . has been replaced by the same 1971 Vintage Chrysler 440. This car is registered in Vancouver B.C. as a 1971 New Yorker.

You may import this vehicle pursuant to the declaration that the vehicle is 25 or more years old, which means that it does not have to be brought into conformity with the Federal motor vehicle safety standards. However, this exemption does not apply to those items of equipment which are the subject of certain individual Federal motor vehicle safety standards. These items are brake hoses and brake fluid, lighting equipment, tires, glazing, and seat belt assemblies (if the Bat-Mobile is equipped with them). These items of equipment must conform in order to be imported. Generally, conformance with our requirements is indicated by the DOT symbol which the manufacturer has placed on the item to certify compliance.

We are unable to advise you on the requirements of the Environmental Protection Agency for exceptions to the emissions regulations.

If you have any further questions, you may call Taylor Vinson of this Office who spoke with you on April 16 (202-366-5263).

Sincerely,
John Womack
Acting Chief Counsel
ref:591
d.5/14/98

ID: 17570.drn

Mr. Mark Recchia
Liaison Engineer
Fiat Auto R & D U.S.A.
39300 Country Club Drive
Farmington Hills, MI 48331-3473

Dear Mr. Recchia:

This responds to your March 18, 1998, request for an interpretation whether a vehicle identification number (VIN) placed inside a motor vehicle passenger compartment may be divided into two lines. You explain that Maserati "uses this practice in Europe because of space restrictions, and its acceptance in the United States would facilitate the production of U.S.- version Maserati cars." Assuming the VIN meets all other requirements of 49 CFR Part 565 Vehicle Identification Number Requirements, the answer is yes.

In Part 565, the National Highway Traffic Safety Administration (NHTSA) specifies the format, content, and physical requirements for a VIN system and its installation. General requirements for a VIN system are specified at Section 565.4 General requirements. Although NHTSA is aware only of VINs written in one line, nothing in Section 565.4(f) prohibits a VIN from being written in two lines. Since there is no prohibition against it, Maserati may write the passenger compartment VIN in two lines.

I note that in the example of the VIN you have provided, the first line of the VIN is preceded by a star, followed by the first nine digits of the VIN, then another star. The second line of the VIN begins with a star, followed by the last eight digits of the VIN, then another star. These stars would be considered "dividers" in the VIN. In a letter of November 20, 1978, to Volkswagen of America, Inc. (copy provided), NHTSA stated the following about VIN dividers:

'[d]ividers' which would appear at the beginning and the end of the VIN would not be considered part of the VIN and, therefore, would not be regulated by the standard. Care should be taken, however, to ensure that the dividers are neither alphabetic nor numeric characters which might be mistaken for part of the VIN.

As stated in the letter to Volkswagen, Fiat and Maserati must ensure that any VIN dividers not be in alphabetic or numeric characters which might be mistaken for part of the VIN.

You state that the attached diagram is "from a European application." We cannot determine from your letter whether the VIN location in the diagram meets 49 CFR 565.4(f) which states that the VIN shall be readable "through the vehicle glazing under daylight lighting conditions by an observer having 20/20 vision (Snelling) whose eye-point is located outside the vehicle adjacent to the left windshield pillar." Before being sold in the U.S., the VIN on the passenger car must meet this and all other requirements specified in Part 565.

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

Sincerely,
Frank Seales, Jr.
Chief Counsel
Enclosure
d.7/15/98
ref:565

ID: 17588.wkm

Mr. Barrie Montague
Manager, Safety and Operations
Ontario Trucking Association
555 Dixon Road
Toronto, Ontario, Canada M9W 1H8

Dear Mr. Montague:

Please pardon the delay in responding to your letter in which you asked whether a trailer manufactured in Canada after February 28, 1998 without an antilock brake system (ABS) and sold to a Canadian motor carrier can be used in international shipments. You defined "international shipment" as one that originates in Canada and terminates in the United States (U.S.). The answer is no.

The U.S. Federal Highway Administration (FHWA) recently published a final rule that amended the Federal Motor Carrier Safety Regulations (63 FR 24454) (copy enclosed). The rule requires all air brake equipped trailers manufactured on and after March 1, 1998 that operate commercially in interstate commerce in the U.S. to be equipped with ABS that meet the requirements of Federal Motor Vehicle Safety Standard No. 121, Air brake systems (49 Code of Federal Regulations 571.121). The requirements promulgated in the rule specifically apply to vehicles entering the U.S. from Canada and Mexico (see pages 24459 and 24464 of enclosure). With respect to trailers and converter dollies manufactured prior to March 1, 1998, the FHWA does not require retrofitting those vehicles with ABS.

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

Sincerely,
Frank Seales, Jr.
Chief Counsel
Enclosure
ref:121
d.6/1/98

ID: 17589.wkm

Mr. Ted Reiniger
Trailer Sales
Manac Western
12815 - 163 Street, NW
Edmonton, Alberta, Canada T5V 1M5

Dear Mr. Reiniger:

Please pardon the delay in responding to your inquiry faxed to Walter Myers of my staff in which you asked whether Canadian-licensed carriers can operate in the United States if not equipped with antilock brake systems (ABS). Truck tractors equipped with air brake systems manufactured on and after March 1, 1997 and single-unit trucks, buses, trailers, and trailer converter dollies equipped with air brake systems manufactured on and after March 1, 1998 must be equipped with antilock brake systems (ABS) in order to operate in the United States (U.S.).

The U.S. Federal Highway Administration (FHWA) recently published a final rule that amended the Federal Motor Carrier Safety Regulations (63 FR 24454) (copy enclosed). The rule requires all air brake equipped commercial motor vehicles manufactured on and after the dates stated above and operating in interstate commerce in the U.S. to be equipped with ABS that meet the requirements of Federal Motor Vehicle Safety Standard No. 121, Air brake systems (49 Code of Federal Regulations 571.121). The requirements promulgated in the rule specifically apply to vehicles entering the U.S. from Canada and Mexico (see pages 24459 and 24464 of enclosure). With respect to truck tractors manufactured prior to March 1, 1997 and single-unit trucks, buses, trailers, and converter dollies manufactured prior to March 1, 1998, the FHWA does not require retrofitting such vehicles with ABS.

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

Sincerely,
Frank Seales, Jr.
Chief Counsel
Enclosure
ref:#121
d.6/2/98

ID: 1761y

The Honorable Robert C. Smith
U.S. House of Representatives
Washington, DC 20515

Dear Mr. Smith:

Thank you for your letter to Secretary Skinner on behalf of your constituent, Mrs. Maureen Andrews, of Derry. You expressed concern about the absence of safety belts for school bus passengers and about the number of persons to occupy a school bus seat. I've been asked to respond to your letter since the National Highway Traffic Safety Administration (NHTSA) is responsible for administering Federal programs relating to school bus safety.

The National Traffic and Motor Vehicle Safety Act of 1966 authorizes NHTSA to issue motor vehicle safety standards for new motor vehicles, including school buses. In 1974, Congress amended the Act to direct NHTSA to issue motor vehicle safety standards addressing various aspects of school bus safety, such as seating systems, windows and windshields, emergency exits, and fuel system integrity. Pursuant to that authority, NHTSA issued a comprehensive set of motor vehicle safety standards to make school buses, already a safe mode of transportation, even safer.

We have considered the safety belt issue in connection with our safety standard for school bus passenger crash protection, Federal Motor Vehicle Safety Standard No. 222. Standard No. 222 requires that large school buses provide passenger crash protection through a concept called "compartmentalization." Providing compartmentalization entails improving the interior of the school bus with protective seat backs, additional seat padding, and better seat spacing and performance. These interior features are intended to keep occupants in their seating area and protect them during a crash. They ensure that a system of crash protection is provided to passengers independent of whether these passengers use safety belts.

For your information, I have enclosed a copy of our notice terminating a rulemaking proceeding to decide whether Standard No. 222 should be amended to specify certain requirements for safety belts voluntarily installed on new large school buses. We decided not to amend the standard since these belts appear to be currently installed in a manner that ensures adequate safety performance. The notice provides a thorough discussion of the safety belt issues raised by Mrs. Andrews. As explained in the notice, school buses in this country have compiled an excellent safety record. In addition to meeting compartmentalization requirements, large school buses differ from small school buses in that they have greater mass, higher seating height and high visibility to other motorists. For all of these reasons, the need for safety belts to mitigate against injuries and fatalities in large school buses is not the same as that for smaller vehicles, such as small school buses. Thus, although Standard No. 222 does require safety belts for passengers in small school buses, we conclude that a Federal requirement for the installation of safety belts in large school buses is not justified at this time.

Mrs. Andrews also asks about requirements that apply to the number of children that are allowed to sit on a bench seat. We are not authorized by Congress to regulate the number of persons that may occupy a school bus seat. However, for the purpose of ensuring that school bus manufacturers properly design their large school buses, we do specify the method for establishing the number of designated seating positions on a bench seat.

The number of seating positions on a bench seat is calculated under Standard No. 222 by dividing the bench width in inches by 15 and rounding the result to the nearest whole number. Under this formula, a 39 inch bench seat has three seating positions. (39 divided by 15 = 2.6, which is rounded to 3) For small school buses, the determination of the number of positions ensures that the bench seat would have sufficient restraint systems for the maximum number of persons that should ever occupy the seat, and that the seat provides crash protection to all these persons. For large school buses, the determination ensures that the forces applied to the seat during compliance tests are reasonable reflections of the number of occupants and of the crash forces that would be involved in a real-world crash.

It should be noted, however, that the number of seating positions derived from the Standard No. 222 formula is not meant to be an absolute measure of the seating capacity of the bus, irrespective of occupant size. We recognize that, in practice, school buses transport a tremendously wide variety of student sizes. For example, while a bus that may be capable of easily accommodating 65 preschool or elementary students, it may be capable of carrying only 43 high school students. When the bus is used to transport students of widely varying ages and sizes, the appropriate capacity of the bus will fall somewhere between those two values. The decision on how many passengers may be comfortably and safely accommodated, therefore, is a decision that must be reached by the bus operator, in light of the ages and sizes of passengers involved, and in accordance with state and local requirements.

Since NHTSA does not have the authority to regulate how States use school buses, the agency could not preclude a State from allowing the number of passengers on a bench seat to exceed the number of designated seating positions on that seat. However, we agree with Mrs. Andrews that a student should not stand while riding in a school bus. We agree further that a student should not sit on a seat unless the student can sit fully on the seat instead of sitting only partially on the seat and thus only being partially protected by the compartmentalization. We believe that Mrs. Andrews' concerns as they apply to public schools would be best addressed by her working with the local school board and state officials.

I hope this information is helpful. If you have any further questions, please do not hesitate to contact me.

Sincerely,

Diane K. Steed

Enclosure /ref:222 d:3/24/89

ID: 1762y

Mr. Robert H. Munson
Director, Automotive Safety Office
Environmental and Safety Engineering Staff
Ford Motor Company
The American Road
Dearborn, MI 48121

Dear Mr. Munson:

This responds to your letter in which you suggested that there are some apparently inconsistent provisions in Standard Nos. 208, Occupant Crash Protection (49 CFR /571.208) and 209, Seat Belt Assemblies (49 CFR /571.209). With respect to manual belt systems installed at front outboard seating positions in a vehicle which is certified as complying with the dynamic testing requirements in Standard No. 208, you asked whether those belt systems may be equipped with load limiters, such that the belt assembly does not comply with the elongation requirements in Standard No. 209. For the reasons explained below, the answer is no.

Your letter suggested that Standard No. 209 contains two different provisions that yield inconsistent answers to this question. On the one hand, section S4.5(b) of Standard No. 209 reads as follows: "A Type 1 or Type 2 seat belt assembly that includes a load limiter and that does not comply with the elongation requirements of this standard may be installed in motor vehicles only in conjunction with an automatic restraint system as part of a total occupant restraint system." Section S3 of Standard No. 209 defines a "load limiter" as "a seat belt assembly component or feature that controls tension on the seat belt to modulate the forces that are imparted to occupants restrained by the belt assembly during a crash." These provisions of Standard No. 209 seemingly preclude the use of a load limiter on manual belts, if the load limiter results in the belt assembly not complying with those elongation requirements, unless the seating position in which such manual belts is also equipped with an automatic restraint system. Accordingly, dynamically tested manual belts installed at seating positions that do not include any automatic restraint system could not be equipped with a load limiter, if the load limiter resulted in the belt no longer complying with the elongation requirements.

On the other hand, section S4.6 of Standard No. 209 exempts dynamically tested manual belts from the elongation requirements of the standard, as well as the webbing width and strength requirements. This exemption applies without respect to whether the dynamically tested manual belt is equipped with a load limiter. Ford suggests that this provision means that a manual belt installed at a front outboard seating position could be equipped with a load limiter, even if the load limiter resulted in the belt assembly not complying with the elongation requirements, provided that the vehicle in which the belt was installed was certified as complying with the dynamic testing requirements in Standard No. 208.

In your letter, you said that it was Ford's interpretation that the requirements of S4.6 of Standard No. 209 were meant to limit the prohibition in S4.5 of Standard No. 209, by permitting the use of load limiters that result in the belt assembly no longer complying with the elongation limits on either automatic belts or dynamically-tested manual belts. You suggested that the reasoning that caused the agency to limit the use of load limiters that result in the belt not complying with the elongation requirements to automatic belts only, in section S4.5, does not apply to dynamically tested manual belts. You quoted the following language from the notice that established S4.5:

[T]here are currently no dynamic performance requirements or injury criteria for manual belt systems used alone. There are no requirements to ensure that a load-limiting belt system would protect vehicle occupants from impacting the steering wheel, instrument panel, and windshield, which would be very likely if the belts elongated beyond the limits specified in Standard No. 209. Therefore, the elongation requirements are necessary to ensure that manual belts used as the sole restraint system will adequately restrain vehicle occupants. 46 FR 2618, at 2619; January 12, 1981.

You noted that this reasoning is now outmoded for some manual belts, because dynamic testing requirements have been established for certain manual belts. In fact, you asserted that the agency has expressly recognized this by exempting dynamically-tested manual belts from the elongation requirements of Standard No. 209. Accordingly, you believe that S4.5 of Standard No. 209 should be interpreted to permit the use of load limiters that cause the belt to no longer comply with the elongation requirements on either automatic belts or dynamically tested manual belts.

As further support for this position, your letter suggested that the agency's notices establishing dynamic testing requirements for manual belt systems show an intent to treat dynamically-tested manual belts in the same way as automatic belts for the purposes of Standard No. 209. You referred to our rule adopting dynamic testing requirements for manual safety belts in front outboard seating positions of passenger cars (51 FR 9800; March 21, 1986), the rule extending dynamic testing requirements to manual belts installed at front outboard seating positions of light trucks and multipurpose passenger vehicles (52 FR 44898; November 23, 1987), and the denial of petitions for reconsideration asking the agency to rescind the exemption of automatic belts and dynamically tested manual belts from the webbing width, strength, and elongation requirements of Standard No. 209 (53 FR 5579; February 25, 1988). Because of the agency's consistent expression in these three notices of its intent to treat dynamically tested manual belts in the same way automatic belts are treated under Standard No. 209, you believe that the reference in S4.5(b) of Standard No. 209 permitting load limiters on belts used "in conjunction with an automatic restraint system" should be interpreted to mean load limiters may be installed on belts used in conjunction with an automatic or dynamically tested manual restraint system.

I do not concur with your suggested interpretation. I believe that sections S4.5 and S4.6 yield inconsistent answers to your question. Section S4.6(a) exempts manual belts from elongation requirements. However, it does not speak to the consequence of installing a load limiter on a belt that does not comply with those requirements. Section S4.5(b) does speak to this issue. It says that such a belt may be used only in conjunction with an automatic restraint. To be more specific, section S4.5 expressly provides that a belt assembly that "includes a load limiter and that does not comply with the elongation requirements of this standard may be installed in a motor vehicle only in conjunction with an automatic restraint system as part of a total occupant restraint system."

I appreciate that the discussion you quoted from the 1981 notice is consistent with your argument that load limiters should be permitted on any dynamically-tested manual belt. Nevertheless, regardless of whether you believe that NHTSA intended to make or should have made such a change when in adopting dynamic testing requirements for manual belts, it is not possible to interpret the term "automatic restraint system," as used in S4.5, to mean "automatic restraint system or dynamically tested manual restraint system." An interpretation cannot add or delete requirements that are not contained in the language of the standard itself. When the agency promulgates a safety standard specifying performance requirements for vehicles or items of equipment to accomplish a particular safety purpose, that safety standard sets forth all the requirements with which the vehicles or equipment must comply. If the requirements in the safety standard do not fully address or ensure the implementation of some aspect of the underlying safety purpose, that aspect is not part of the standard. Since an interpretation cannot amend the language of a safety standard, the agency's only recourse in these situations is to undertake rulemaking to amend the language of the standard.

You asked that we treat your request for an interpretation as a petition for rulemaking if, as we have done, we concluded that your suggested interpretation was incorrect. We will notify you of our response to this petition as soon as we complete our review of it.

Sincerely,

Erika Z. Jones Chief Counsel

/ref:208#209 d:3/28/89

ID: 17632.ztv

Mr. L. W. Camp
Director
Automotive Safety Office
Ford Motor Company
300 Town Center Drive
Dearborn, MI 48126

Dear Mr. Camp:

This is in reply to your letter of March 23, 1998, with respect to an interpretation of "permanent" fixation of vehicle headlamp aiming device (VHAD) calibration.

Paragraph S7.8.5.2(c) of Federal Motor Vehicle Safety Standard No. 108 requires that "Each headlamp equipped with a VHAD that is manufactured for use on motor vehicles manufactured on or after September 1, 1998, shall be manufactured with its calibration permanently fixed by its manufacturer." You reference our letter to Ichikoh Industries dated June 11, 1997, in which we said that if the calibration is capable of adjustment by any means it is not "permanent." You believe that this interpretation is not in accord with the intent of the rulemaking "and if read literally creates an impracticable and unreasonable standard." You have asked for an additional clarification of the term "permanent."

In your opinion, "the intent of the term 'permanent' was to help prevent adjustment of the VHAD calibration by either service mechanics or the operator, once set by the manufacturer. This would facilitate the proper aim of headlamps equipped with VHAD devices in the field. The [Regulatory Negotiation] Committee never intended that headlamp manufacturers prevent a determined individual from deliberately altering the calibration, as this is neither reasonable nor practicable."

You believe that S7.8.5.2(c) would be satisfied if a VHAD is tamper resistant or tamper indicant. With respect to tamper resistance, you write that a system could be designed so that the calibration mechanism would not permit misadjustment by a customer using ordinary tools or by a dealer using special tools provided only by the vehicle manufacturer. Ford also believes that if a vehicle is designed so that the vehicle structure prevents access to the VHAD calibration mechanism, the calibration should be considered "permanently fixed." Ford also believes that the term "tamper indicant" can be synonymous with "permanent."

Analogizing to emission control calibration systems incorporating a cap which must be destroyed in order to defeat the manufacturer's emission control calibration setting, you believe that a similar cap design could prevent "anyone aiming a headlamp from inadvertently making an adjustment of the VHAD calibration."

I would like to explain our interpretation to Ichikoh Industries in light of the concerns you raise. We disagree that the intent of the requirement for "permanent" calibration is to help prevent adjustment of the VHAD calibration by just service mechanics or vehicle owners. The intent is to prevent adjustment by vehicle distributors and dealers as well. We also acknowledge that headlamp manufacturers cannot design a system that will absolutely prevent intentional tampering. We believe that the test for determining whether calibration is permanent is whether it is tamper-resistant both with respect to owners, service mechanics, vehicle distributors, and vehicle dealers.

The specific question asked by Ichikoh Industries was "(d)oes calibration method that vehicle owner or driver cannot calibrate using ordinary tools conform to [the requirement for permanent calibration]?" As we noted in our reply, this question implied that the calibration could be adjusted by tools that are not "ordinary tools." We stated that if the calibration is capable of adjustment by any means, it is not permanent, and that if the calibration cannot be adjusted, by ordinary tools or otherwise, then it is permanent.

I note that the question we were answering was asked in the context of calibration being performed by a vehicle owner or driver. The point we were trying to make in answering the question was that just because a vehicle owner or driver would need to obtain and use special tools to calibrate the VHAD device would not be sufficient to make the headlamp manufacturer's calibration permanent. However, this principle would not apply in a situation where special tools existed but the headlamp manufacturer reasonably believed that the tools would not available to the public, including service mechanics and vehicle distributors and dealers. This is because, in such a situation, neither a vehicle owner nor a mechanic could obtain or use such tools to calibrate the VHAD device.

We cannot provide an interpretation as to whether a particular design would be tamper-resistant outside the context of specific information about the design. We would be cautious, however, with respect to the approach of making systems "tamper indicant" as opposed to tamper-resistant. In our view, the mere fact that it would become readily apparent that a system has been calibrated would not, by itself, necessarily discourage such calibration. Thus, unless such systems could also be viewed as tamper-resistant, we would not consider them to be "permanent" in the context of the requirement at issue.

We do not agree with Ford's view that the calibration is "permanently fixed" if a vehicle is designed to prevent access to the VHAD calibration feature. Although Ichikoh asked a similar question regarding vehicle structures and aiming devices, its question was in the context of horizontal aiming systems and not calibration. We advised Ichikoh that if the horizontal aiming mechanism was not accessible for aiming the headlamp, it would be regarded as absent for purposes of meeting Standard No. 108. Ford's question is whether the VHAD calibration can be regarded as "permanently fixed" if the VHAD is inaccessible when the headlamp is installed on a vehicle. The answer is no; Standard No. 108 clearly states that the VHAD calibration is to be fixed by the headlamp manufacturer at the time the headlamp is manufactured. This means that its accessibility when the vehicle manufacturer installs the headlamp is irrelevant to the issue of whether its calibration is "permanently fixed."

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

Sincerely,
Frank Seales, Jr.
Chief Counsel
ref:108
d.6/18/98

ID: 1763y

Samson Helfgott, Esq.
Helfgott & Karas, P.C.
60th Floor
Empire State Building
New York, NY l0ll8-0ll0

Dear Mr. Helfgott:

This is in reply to your letter of January 12, l989, asking whether Federal regulations permit the use of an amber lamp either as original or aftermarket equipment. The lamp would be placed adjacent to the center highmounted stop lamp, but in a separate housing and wholly independent of it. It would be activated when the ignition is turned on, and deactivated whenever the stop lamps are illuminated. The purpose of the amber lamp is to improve conspicuity of the vehicle in order to lessen the braking response time of drivers in vehicles following.

Paragraph S4.1.3 of 49 CFR 571.108 Federal Motor Vehicle Safety Standard No. l08 Lamps, Reflective Devices and Associated Equipment allows a supplementary lighting device such as the amber lamp if it does not impair the effectiveness of lighting equipment required by Standard No. l08. The decision regarding impairment is initially that of the manufacturer of the vehicle on which the supplementary device is installed, and which the manufacturer certifies as complying with all applicable Federal safety standards. In this instance you have indicated that the wiring of the amber lamp is independent of the center lamp, and that the amber lamp is inoperative when the stop lamps are on. While your lamp does not appear to impair the effectiveness of the center lamp, you should consider whether your lamp, since it would be a steady-burning amber lamp, might confuse following drivers unused to seeing a steady burning amber lamp on the rear of a vehicle, or because of its brightness. Should the amber lamp create confusion, it may impair the effectiveness of the other rear lamps required by Standard No. l08, each of which (other than the stop lamps) would when in use operate contemporaneously with it, such as an amber turn signal lamp, or a back up lamp. As part of the vehicle manufacturer's certification to Standard No. l08, it must certify that this situation would not occur, if the lamp is to be permissible as an item of original equipment.

As an aftermarket device, the amber lamp is not regulated by Standard No. l08, but is subject to the general prohibition of l5 U.S.C. 1397(a)(2)(A) against rendering inoperative, in whole or in part, equipment installed in accordance with a safety standard. The same considerations as discussed above should be taken into consideration when making this determination.

In addition, the use of this lamp is subject to local laws. We are not able to advise you as to these laws, and suggest that you consult for an opinion the American Association of Motor Vehicle Administrators, 4600 Wilson Boulevard, Arlington, VA 22203.

Sincerely,

Erika Z. Jones Chief Counsel

ref:l08 d:3/30/89