ID: 006341drn-2

Mr. Thomas V. Kazyaka
Chief Executive Officer
T.V.K. Industries, Inc.
P. O. Box 1161
Gualala, CA 95445

Dear Mr. Kazyaka:

This responds to your letter to Dr. Raymond P. Owings, the National Highway Traffic Safety Administrations, Associate Administrator for Advanced Research and Analysis, expressing the view that manual transmission shift levers "may be required to be backlit and possibly display the gear engaged" in order to comply with S3.2 of Federal Motor Vehicle Safety Standard (FMVSS) No. 102, Transmission shift lever sequence, starter interlock, and transmission braking effect. Because your letter seeks a legal interpretation, I am responding on Dr. Owings behalf. As explained below, S3.2 of FMVSS No. 102 does not require manual transmission shift levers to identify the gear engaged or have backlighting.

S3.2 of FMVSS No. 102 specifies the following requirements for vehicles with manual transmissions:

Manual transmissions. Identification of the shift lever pattern of manual transmissions, except three forward speed manual transmissions having the standard "H" pattern, shall be displayed in view of the driver at all times when a driver is present in the drivers seating position.

While this paragraph requires identification of the shift lever pattern of manual transmissions, it neither requires identification of the gear engaged nor backlighting.

I also note that no other FMVSS requires vehicles with only manual transmission shift levers to identify the gear engaged or to have backlighting.

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

Sincerely,

Jacqueline Glassman
Chief Counsel

ref:101#102
d.10/15/03

ID: 006664drn

The Honorable Chris Chocola
U.S. House of Representatives
444 Mall Road
Logansport, IN 46947

Dear Representative Chocola:

Thank you for your letter of August 27, 2003, requesting information on behalf of your constituent, Reverend Don Harris of the Door of Hope Community Church in Kokomo. Reverend Harris is concerned about the 15-passenger vans used by his church and wishes to know if there is a Federal law "prohibiting use of 15-passenger vans for transporting students (K-12) to and from school." Reverend Harris also asks for information about a warning issued by the National Highway Traffic Safety Administration (NHTSA) about the risks of rollover crashes associated with 15-passenger vans.

As explained below, Federal law restricts the types of new buses that may be sold to transport children to or from school or school-related events, but does not restrict the use of vehicles. Regulations applying to the use of 15-passenger vans and other vehicles are set by the States.

Transporting Students With Vans

By way of background, NHTSA is authorized to issue and enforce Federal motor vehicle safety standards (FMVSSs) applicable to new motor vehicles. Our statute at 49 U.S.C. 30112(a) requires any person selling or leasing a new vehicle to sell or lease a vehicle that meets all applicable motor vehicle safety standards. Accordingly, persons selling or leasing a new "school bus" must sell or lease a vehicle that meets the safety standards applicable to school buses. Our statute at 49 U.S.C. 30125 defines a "school bus" as any passenger motor vehicle that is designed for carrying a driver and more than 10 passengers and which, NHTSA decides, is likely to be "used significantly" to transport "preprimary, primary, and secondary" students to or from school or school-related events. By regulation, the capacity threshold for school buses corresponds to that of buses -- vehicles designed for carrying more than ten (10) persons.

The Door of Hope Community Church operates a child care center for pre-kindergarten and school age children and provides transportation to and from school. While child care centers in and of themselves are not "schools," a facility providing transportation to or from school is providing the transportation covered by our statute. As such, a dealer selling a new bus to the facility for transporting students to or from school is obligated to sell a "school bus." Bus sales to child care centers have been addressed in the enclosed May 9, 2001, interpretation letter to Mr. Rod Nash explaining dealers responsibilities in selling new buses to child care centers for use in transporting children to or from schools.

Because the FMVSSs apply only to manufacturers and sellers of new motor vehicles, we do not regulate how a child care center must transport its children. However, each State has the authority to set its own regulations regarding the use of motor vehicles, including 15-passenger vans. For this reason, Indiana law determines which vehicles can be used to transport children to or from child care centers.

15-Passenger Van Rollover Risk

The way some 15-passenger vans may be driven may subject occupants to an increased risk of rollover crashes. On April 15, 2002, NHTSA Administrator Jeffrey W. Runge, M.D., reissued a cautionary warning to 15-passenger van users because of an increased rollover risk under certain conditions. NHTSA research has shown that 15-passenger vans have a rollover risk that increases dramatically as the number of occupants increases from fewer than five to more than ten. In fact, 15-passenger vans with 10 or more occupants had a rollover rate in single-vehicle crashes that is nearly three times the rate of those that were lightly loaded.

Dr. Runge advised 15-passenger van users to be aware of the following safety precautions in order to significantly reduce the rollover risk:

• It is important that 15-passenger vans be operated by trained, experienced drivers.
• All occupants must wear seat belts at all times. Eighty percent of those who died in 15-passenger van rollovers nationwide in the year 2000 were not buckled up. Wearing seat belts dramatically increases the chances of survival during a rollover crash. In fatal, single-vehicle rollovers involving 15-passenger vans over the past decade, 92 percent of belted occupants survived.

I am enclosing copies of the consumer advisory, a NHTSA study on "The Rollover Propensity of Fifteen-Passenger Vans," and a flyer, "Reducing the Risk of Rollover Crashes in 15-Passenger Vans." For more information about the safety features of a school bus, I am enclosing NHTSAs publication, "School Bus Safety: Safe Passage for Americas Children."

The Multifunction School Activity Bus

Your constituent might be interested to know that NHTSA recently established a new school bus subcategory, the "multifunction school activity bus" (July 31, 2003; 68 FR 44892). This vehicle is a bus that meets all school bus FMVSSs, except those for school bus flashing lights and stop arms. As a matter of Federal law, child care facilities may now be sold multifunction school activity buses as an alternative to school buses with flashing lights and stop arms, subject to State law. A copy of the July 31, 2003, document is enclosed for your information.

I hope this information is helpful. If you or Reverend Harris have any further questions about 15-passenger van safety or about NHTSAs programs, please feel free to contact me at this address or at (202) 366-2992.

Sincerely,

Jacqueline Glassman
Chief Counsel

Enclosures
ref:571.3
d.10/1/03

ID: 006814drn

Jim Soucie, Director of National Sales
I.M.S., The Kiosk Company
1538 So. 139^th St.
Omaha, NE 68144

Dear Mr. Soucie:

This responds to your September 16, 2003, FAX inquiry asking if NHTSAs laws apply to companies that place commercial advertisements on school bus exteriors.

In your FAX, you write that your company "would like to place ads on the exterior sides of the bus, away from anything that moves; doors, mirrors or windows." In a telephone conversation with Dorothy Nakama of my staff, you stated that you want to place advertisements on only the exterior right and left sides of a school bus, and not on the vehicles front or rear. No advertisements will be placed in the school bus interior. The advertisements are to be made of vinyl, will be of as-yet unspecified dimensions, but will not completely wrap around the school bus. No school district or other school bus owner will place the advertisements themselves; instead, your company will arrange for a local contractor to apply the advertisements directly onto the school bus exterior, with no need for metal frames or brackets. The contractor will also remove the advertisements.

By way of background, the National Highway Traffic Safety Administration (NHTSA) is authorized to issue and enforce Federal motor vehicle safety standards (FMVSSs) that set performance requirements for new motor vehicles and new items of motor vehicle equipment. (49 U.S.C. 30101 et seq.) 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 FMVSS. In general, the "make inoperative" prohibition (49 U.S.C. Section 30122) requires businesses that modify motor vehicles to ensure that they do not remove, disconnect, or degrade the performance of safety equipment installed in compliance with applicable standards. Violations of this prohibition are punishable by civil penalties up to $5,000 for each violation. The maximum penalty for a related series of violations is $15,000,000.

The issue arising from your situation is whether placement of the advertisements on a school bus would "make inoperative" the compliance of the school bus with labeling requirements for the bus exterior. [1] FMVSS No. 217, Bus emergency exits and window retention and release, specifies labeling requirements for school bus emergency exits, which may be doors, windows, or roof exits. Among other things, the standard requires that:

• school bus emergency exits have the designation "Emergency Door" or "Emergency Exit" as appropriate, in letters at least 5 centimeters high, on both the inside and outside surfaces of the bus (S5.5.3(a)); and that
• required school bus emergency exits "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 " (S5.5.3(c)).

A person placing the advertisements on the bus may be subject to the make inoperative provision. Since the identification of the exits and doors of the school bus and the retroreflective tape are specified for safety reasons (i.e., to facilitate identification of the emergency exits and doors, especially in the dark), the advertisements must not obscure or cover the identifications of the exits and doors or the retroreflective tape.

Other identification requirements for school buses, including color, are established by each State or local jurisdiction. In NHTSAs Highway Safety Program Guideline No. 17, "Pupil Transportation Safety," it is recommended that the word "school bus" be placed on the front and rear of the school bus between the 4-way/8-way flashing lights in letters as high as possible, and that no other lettering be on the front or rear of the vehicle. If any safety problems associated with schoolbus identification were to develop, NHTSA would consider regulatory requirements in the future.

If you have any further questions about NHTSAs laws or programs, please feel free to contact Dorothy Nakama at this address or at (202) 366-2992.

Sincerely,
Jacqueline Glassman

Chief Counsel
ref:571.3#217





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[1] Our statute at 49 U.S.C. 30122 states: "A manufacturer, distributor, dealer, or motor vehicle repair business may not knowingly make inoperative any part of a device or element of design installed on or in a motor vehicle or motor vehicle equipment in compliance with an applicable motor vehicle safety standard prescribed under this chapter [49 USCS 30101 et seq.] unless the manufacturer, distributor, dealer, or repair business reasonably believes the vehicle or equipment will not be used (except for testing or a similar purpose during maintenance or repair) when the device or element is inoperative."

ID: 006817ogm

Dietmar K. Haenchen, Process Leader
Safety Affairs and Vehicle Testing
Volkswagen of America, Inc.
Mail Code 2A02
3800 Hamlin Road
Auburn Hills, MI 48326

Dear Mr. Haenchen:

This responds to your letter to the National Highway Traffic Safety Administration (NHTSA), concerning Federal Motor Vehicle Safety Standard No. 201, Occupant Protection in Interior Impact. You are particularly concerned about the applicability of the upper interior head impact requirements of Standard No. 201 as they apply to sunroof systems and vehicles using roof panels made of glazing materials.

One of your concerns relates to sunroofs or fixed glass roof panels and trim panel covers that may cover these components. Your letter notes that S8.2 of Standard No. 201 directs that movable sunroofs must be placed in the fully open position for testing. Volkswagen also states that it believes it is reasonable to conclude that a single sliding trim cover for a movable sunroof should also be in the open position for testing under S8.2. In your view, if a movable sunroof is in the open position, the cover would be open as well. You then address the instance where a sunroof might be covered by multiple trim panels that may either be in a closed or open position when the sunroof is in use. In such an instance Volkswagen believes that the correct interpretation of Standard No. 201 is that the definition of sunroof would include any accompanying roof panel that can be opened.

NHTSA agrees with your interpretation. S8.2(c) of Standard No. 201 specifies that movable sunroofs are placed in the fully open position for vehicle testing. Provided that the trim or cover involved does not extend beyond the perimeter of the sunroof opening, we believe it is reasonable to include such covers or trim as being part of the sunroof for the purposes of Standard No. 201. We note that this interpretation is consistent with a previous interpretation contained in a February 19, 1999 letter to Mr. George L. Parker of the Association of International Automobile Manufacturers. In that letter, we stated that sunroofs should be open during both testing and the target location procedure. This position was based on our view that vehicles were likely to be operated with the sunroof in the open position. We further stated that sunroofs should be open during the target location procedure. As the trim or covers over the sunroof opening would impede in locating targets and testing if they remained in the closed position, we agree with your suggested interpretation.

Your letter also asks about roofs with fixed glass panels. You note that prior NHTSA interpretations state that impacts where the Head Injury Criterion (HIC) is affected by contact with glazing are invalid. In the case of a roof incorporating a fixed glass panel with a moveable shade or sun cover, you ask if testing should be conducted with the shade in an opened or closed position. Your letter further states that Volkswagen believes that the correct interpretation would be that the shade be open for testing and that impacts should be invalid when contact with a fixed glass roof panel are such that the HIC is affected. If NHTSA determines that such a shade or sun cover should remain in the closed position, you propose an alternate interpretation. Under this alternate interpretation, Volkswagen contends that impacts where the headform deforms the cover to the point where the cover contacts the glass panel should also be invalid.

You are correct in stating that prior NHTSA interpretations have indicated that impacts will be determined to be invalid when the anterior portion of the Full Motion Headform (FMH) strikes fixed glazing near or at the same time that the forehead impact zone strikes a nearby target. Standard No. 201 is not intended to prevent injuries resulting from impacts with glazing. If such an impact occurs, thereby affecting the HIC, the test is invalid.

We also agree that any shade or cover for a fixed glass roof panel be in the open position for testing (as well as target location). A sliding shade or cover for such a fixed glass panel is likely to be located in close proximity to the glass panel itself. Thus it could be impracticable to incorporate safety features into such a shade that would allow compliance with Standard No. 201.

I hope this information is helpful. If you have any further questions, please feel free to call Otto Matheke of my staff at (202) 366-2992.

Sincerely,

Jacqueline Glassman
Chief Counsel

ref:201
d.2/12/04

ID: 007240-2drn

Michael Wehr, Director of Maintenance
Milwaukee County Transit System
1942 North 17^th Street
Milwaukee, WI 53205-1697

Dear Mr. Wehr:

This responds to your letter asking about Federal Motor Vehicle Safety Standard (FMVSS) No. 102, Transmission shift lever sequence, starter interlock, and transmission braking effect.

According to your letter, the Milwaukee County Transit System purchases transit buses. You state that for years, new buses could be purchased with a transmission shift selector in the form of a horizontal row of three buttons: "D" for forward; "N" for neutral; and "R" for reverse. Recently, the bus manufacturer has begun to only offer buses with a shift selector in the form of a vertical row of six buttons, which are, from top to bottom: "R" for reverse; "N" for neutral; "D" for forward; "3" for third gear; "2" for second gear; and "1" for first gear.

You believe the bus manufacturer no longer offers the older system because bus manufacturers and transmission suppliers have recently changed their interpretation of FMVSS No. 102. According to your letter, they have taken the position that "in order to comply with [FMVSS No. 102] the bus operator has to be able to manually downshift the automatic transmission on a transit bus." You ask whether new transit buses can be produced with the older three-button shift selector system.

As we have explained in a previous interpretation letter, FMVSS No. 102 "does not require more than one forward drive shift lever position," provided that engine braking occurs automatically at speeds below 40 km/h. See letter to Arnold and Porter dated August 13, 1987, (copy enclosed). Thus, a bus could be produced with a transmission that only included the D, N and R shift positions rather than R, N, D, 3, 2, and 1, so long as the rest of the standards requirements were met. We note that the transmission retarder on your buses that is activated by the service brake pedal would not satisfy the standards requirements.

We do not have sufficient information to comment on why particular bus manufacturers and transmission suppliers may believe that buses with the older three-button shift selector system may not comply with FMVSS No. 102. If they have any questions about the standard, they may contact us.

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 at (202) 366-2992.

Sincerely,

Jacqueline Glassman
Chief Counsel

Enclosure
ref:102
d.11/26/03

ID: 007571rbm

Stephan J. Speth, Director
Vehicle Compliance & Safety Affairs
DaimlerChrysler Corporation
800 Chrysler Drive CIMS 482-00-91
Auburn Hills, MI 48326-2757

Dear Mr. Speth:

This responds to your recent correspondence regarding the telltale requirement in S19.2 of Federal Motor Vehicle Safety Standard No. 208, Occupant crash protection (FMVSS No. 208). Specifically, you ask whether S19.2 permits a compliance alternative other than the passenger air bag telltale to prove that an the air bag is suppressed when an automatic suppression systems sensor does not detect the presence of a child restraint but the system deactivates the passenger air bag whenever the suppression system perceives that the seat is empty. While not constituting a compliance alternative, S19 does permit a device other than a telltale to indicate that the automatic suppression system has deactivated the air bag in those instances where the suppression system perceives the seat as empty.

In your letter you note that in some vehicle seat designs the car bed is too wide to be sensed by the automatic suppression systems sensor. Instead, the sensor perceives that the seat is empty and suppresses the air bag. Because the seat appears to be unoccupied, the telltale does not illuminate.

On May 12, 2000, the National Highway Traffic Safety Administration (NHTSA) published a final rule requiring advanced air bags in all passenger cars, multi-purpose passenger vehicles, buses and light trucks with a gross vehicle weight rating (GVWR) of 8,500 lb or less starting September 1, 2003, (65 FR 30680). The issue raised in your letter was discussed in the preamble of that final rule.

S19.2.2 requires that each vehicle equipped with an automatic suppression system have at least one telltale that emits a light when the air bag is deactivated and does not emit a light when the air bag is activated, except when the passenger seat is not occupied. The telltale must meet certain requirements further detailed in S19.2.2. As discussed in the preamble to the final rule, NHTSA noted that manufacturers could choose not to illuminate the telltale when the passenger seat was unoccupied, even though the air bag has been deactivated. The final rule specifically provides manufacturers with the option of either deploying or suppressing the passenger air bag when the passenger seat is unoccupied. Suppressing the air bag may be advantageous for various reasons. First, the passenger seat is often unoccupied. Deploying an air bag in front of an empty seat would be both costly and unnecessary. Second, suppressing the air bag in all instances below a certain weight threshold could result in a more robust system that, at lower weight levels, automatically assumes any item or occupant on the seat will not benefit from a deploying air bag. NHTSA decided to allow manufacturers to design telltales that do not emit light, even though the air bag is suppressed, because such a requirement would mean that the telltale would be on more often than it was off in vehicles with these types of designs. Since the point of the telltale is to alert the driver of the vehicle that the air bag has been suppressed in the presence of a child, NHTSA was concerned that overuse of the telltale could dilute the telltales important safety message. Accordingly, the regulation specifically permits non-illumination of the telltale in the event that the seat is unoccupied.

However, NHTSA also contemplated a rare situation in which the suppression systems sensing mechanism reads the passenger seat as unoccupied even though a child could be in the seat. Such a situation should occur only when the weight of the child or test device is so slight as to prevent a sensing system from detecting the occupant. Within the context of the tests in the automatic suppression options of the advanced air bag rule, we believe such circumstance is probably limited to a car bed bridging the seat-based sensing system [1] or the three-year-old child dummy sitting on the forward edge of the seat, since in both of these instances the level of weight and/or its distribution on the seat may be sufficiently low to prevent a sensing system from detecting the occupant. Because of the possibility that this could occur under limited circumstances, we added S19.2.3, S21.2.3 and S23.2.3 which require some mechanism that definitively indicates whether the air bag is suppressed. In the preamble we stated that" [I]n order to accommodate a design where the telltale was not illuminated when the seat was empty, but still allow for compliance testing of all of the proposed child seating positions, some of which could look to a suppression system like the seat was empty, we added a requirement that the vehicle come equipped with a mechanism that would indicate under all circumstances whether the air bag was suppressed." 65 FR 30723. The mechanism need not be located in the occupant compartment unless the required telltale serves that function.

While this approach has the disadvantage of sometimes not notifying a parent or caregiver that the automatic suppression system has suppressed the passenger air bag, we balanced this concern against competing concerns that the telltale may be disregarded due to overexposure or that a sensing system may be unable to detect the presence of a child under certain real world operating conditions. In the event that a manufacturers suppression system is unable to always detect the presence of a child for whom the system is designed to suppress the air bag, this information must be included in the owners manual so that a parent or caregiver is aware that the telltale may not always illuminate in the presence of a small child. Such information is already required to be provided pursuant to S4.5.1(f)(2)(iv) of the standard.

I hope this letter addresses your concerns. Please feel free to contact Rebecca MacPherson of my staff at (202) 366-2992 should you have any additional questions.

Sincerely,

Jacqueline Glassman
Chief Counsel

ref:208
d.3/8/04





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[1] The car bed is unique among child restraints because it is installed sideways across the seat, it is designed to accommodate only very small infants, and the seat belt is not cinched down when testing the suppression system. This combination of factors could reasonably result in the car bed placing virtually no weight on a seat-integrated sensing system.

ID: 0076

Herr Hellfried Sandig
Reitter & Schefenacker GmbH & Co KG
Eckenerstrasse 2
73730 Esslingen
Germany

Dear Herr Sandig:

This responds to your FAX of June 6, 1994, to Mr. Van Iderstine of this agency, asking for an interpretation of Motor Vehicle Safety Standard No. 108.

You present a drawing of a rear combination lamp incorporating one stop lamp and two taillamps. You have asked whether it is "necessary that we must have the ratio 5:1/3:1 between the stop and the tail lamp measurements in this arrangement?"

If the lamp is intended for use on narrower vehicles, the answer depends upon the distance between the optical axes of the stop and taillamp functions. SAE Standard J586 FEB84 Stop Lamps for Use on Motor Vehicles Less Than 2032 mm in Overall Width is incorporated by reference in Standard No. 108. Paragraph 5.1.5.3 of J586 is the source of the ratio: "[w]hen a tail lamp is combined with the stop lamp, the stop lamp shall not be less than three times the luminous intensity of the tail lamp at any test point; except that at H-V, H-5L, H-5R, and 5U-V, the stop lamp shall not be less than five times the luminous intensity of the tail lamp." However, in a multiple compartment lamp such as yours, if "the distance between optical axes for one of the functions exceeds the dimensions specified in paragraph 5.1.5.2 [i.e., 560 mm] the ratio shall be computed for only those compartments or lamps where the tail lamp and stop lamp are optically combined." Although your combination lamp design combines the two functions, your drawing indicates that they are not optically combined, and the ratio will not apply if the optical axes are more than 560 mm apart. The ratio will apply if the distance between the optical axis of the stop lamp and that of either taillamp is 560 mm or less.

SAE Standard J1398 MAY85 Stop Lamps for Use on Motor Vehicles 2032 mm or More in Overall Width is the standard incorporated in Standard No. 108 that applies to lamps used on wider

vehicles. Its paragraph 5.1.5.2 establishes the same 5:3 ratio (though not including H-5L in the five times ratio), but does not provide an exception based upon spacing of optical axes. Thus, if your lamp is designed for wider vehicles, the ratio applies regardless of the spacing of the optical axes.

Sincerely,

John Womack Acting Chief Counsel ref:108 7/6/94

ID: 007713

Mr. Robert Strassburger
Vice President, Safety And Harmonization
Alliance of Automobile Manufacturers
1401 H Street, NW
Suite 900
Washington, DC 20005

Dear Mr. Strassburger:

This responds to your request that we reconsider a May 2, 2003, letter of interpretation we issued to Hyundai concluding that Federal Motor Vehicle Safety Standard (FMVSS) no. 108 does not preempt a California statute regulating the distance between front turn signal lamps and fog lamps. As discussed below, after carefully reconsidering our interpretation, we conclude that FMVSS No. 108 preempts State laws regarding the distance between front turn signal lamps and fog lamps. This letter withdraws and supersedes our May 2, 2003, interpretation.

We note that, in a letter dated July 1, 2003, Hyundai requested that we reconsider our May 2, 2003, interpretation. However, the California Highway Patrol subsequently informed Hyundai that it recognized that the lamp spacing requirements in its regulations are not identical to those contained in FMVSS 108, and that the provisions of FMVSS No. 108 covering the same aspect of performance prevailed over the State regulation. Therefore, in a letter dated August 12, 2003, we advised Hyundai that we considered its July 1, 2003, request as mooted. you expressed concern, however, that other States may nonetheless rely on the May 2, 2003, interpretation letter, and asked that we clarify our position on this issue.

The California law at issue provided that fog lamps must be mounted so that the inner edge of the lens retaining ring is no closer than 10 cm (4 in.) to the optical center of the front turn signal lamp. FMVSS No. 108 provides, by means of incorporation by reference of SAE Recommended Practice J588, that if the lighted edge of "the low beam headlamp or any additional lamp used to supplement or used in lieu of the lower beam, such as an auxiliary low beam or fog lamp" is closer than 100 mm (4 in.) to the geometric centroid of the front turn signal functional lighted area, the luminous intensity of the turn signal lamp is required to be higher than it would be if the spacing between the turn signal and other lamp were 100 mm or greater. Thus, the standard expressly contemplates the placement of fog lamps in an area that would be prohibited under the California law.

Under 49 u.s.c. 30103(b), preemption, 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" a federal motor vehicle safety standard that is in effect. Thus, the relevant issue is whether the California law addresses the same aspect of performance as one addressed by FMVSS No. 108.

In our August 12, 2003, letter to Hyundai, we summarized our May 2, 2003, interpretation as follows:

In brief, fog lamps are not required items of lighting equipment under FMVSS No. 108. thus, if California were to preclude fog lamps, FMVSS No. 108 would not preempt such an action. similarly, California can address the spacing between fog lamps and turn signal lamps. However, California could not regulate fog lamps in a manner that would be inconsistent with the functioning of front turn signal lamps, which we do regulate.

We note that, in our May 2, 2003, interpretation, we stated that we believed the thrust of J588 was to regulate performance of turn signal lamps, and that the reference to fog lamps was illustrative.

We have reconsidered our May 2, 2003, interpretation. As noted above, the relevant issue is whether the California law and FMVSS No. 108 address the same aspect of performance.

On reconsideration, we believe that both FMVSS No. 108 and the California law seek to prevent obscuration of the turn signals. FMVSS No. 108 requires that if a fog lamp is closer than four inches to the turn signal lamp, the turn signal lamp must be brighter. The California law requires that fog lamps not be any closer than four inches to turn signal lamps. Since the California law addresses the same aspect of performance as FMVSS No. 108 and is not identical, it is preempted.

We note that you Stated in your letter that the alliance agrees that a State law prohibiting fog lamps would not be preempted, and we are not changing our view on that issue.

I hope this clarification is helpful. If you have any questions, you may call Edward Glancy of this Office (202-366-2992).

Sincerely,

Jacqueline Glassman
Chief Counsel

ref:108
d.4/1/04

ID: 007749drn-3

Robert Strassburger, Vice President
Safety and Harmonization
Alliance of Automobile Manufacturers
1401 H Street, NW, Suite 900
Washington, DC20005

Dear Mr. Strassburger:

This responds to your request that we reconsider a May 6, 2003, interpretation letter to Jaguar Cars on the meaning of "daylight opening" in Federal Motor Vehicle Safety Standard (FMVSS) No. 104, Windshield wiping and washing systems. After carefully considering your request, we affirm the opinion stated in our letter. Our reasons are set forth below.

In its request for interpretation, Jaguar asked whether the daylight opening should be measured to the edge of complete blackout area, the start of dot fade area, or to some point in between. We explained that the daylight opening is measured to the edge of complete blackout area on the indshield.

Daylight opening is defined at S3 of FMVSS No. 104 as: "the maximum unobstructed opening through the glazing surface, as defined in paragraph 2.3.12 of section E, Ground Vehicle Practice, SAE Aerospace-Automotive Drawing Standards, September 1963."

Paragraph 2.3.12 of that SAE standard states:

The term "Daylight Opening" (abbreviated DLO) refers to the maximum unobstructed opening through any glass aperture, including reveal or garnish moldings adjoining the glass, according to a given direction or projection. If not specified the dimension will be the vertical projection.

We noted that the definition of "daylight opening" referred to by Jaguar was in a later SAE document (SAE Recommended Practice J1100) and not the one referenced in FMVSS No. 104. One difference between the definition of "daylight opening" in the older document and the one in J1100 is that the newer one treats "opaque coatings" in the same manner as reveal or garnish moldings.

In our letter, we noted that opaque coatings around the edge of the windshield are now used to serve the function once served by moldings, i.e., covering the glue around the edges of the windshield. Given this changed technology, we believed it was appropriate to treat opaque coatings around the edge of the windshield in the same manner as moldings, in interpreting the term "daylight opening" in FMVSS No. 104. We stated, however, that this is only true for what Jaguar referred to as "complete blackout" or "truly opaque" areas. We stated that the dot fade area is not truly opaque, and is not analogous to moldings. Thus, daylight opening is measured to the edge of complete blackout area.

In your recent letter, you disagree with our view about the dot fade area. You believe that the dot fade area that is ordinarily inboard of the opaque coatings at the edge of the windshield should not be included in the measurement of "daylight opening."

According to your letter:

"Daylight Opening" is defined both in FMVSS No. 104 and in the referenced SAE standard as the maximum unobstructed opening through the glazing surface. The dot-fade area is not "unobstructed." Rather, the dot-fade area is more appropriately viewed as the transition to the opaque area of the windshield, analogous to the edge of a molding in an older design. As moldings would not have been included in the definition of "daylight opening" under the standard, the dot-fade edge of the opaque area should likewise not be included in that definition. For the same reason, Alliance members have not included dot-fade areas as part of the daylight opening when providing windshield measurements to the National Highway Traffic Safety Administration for purposes of FMVSS 104 compliance testing.

While we have considered your arguments, we do not agree that the dot fade area toward the edges of a windshield represents an obstruction within the meaning of FMVSS No. 104.

As a technical matter, we believe that the term "unobstructed opening," as used in the 1963 SAE document incorporated into FMVSS No. 104, originally referred to physical obstructions. In our letter to Jaguar, however, we noted that opaque coatings around the edge of the windshield are now used for the function once served by moldings, i.e., covering the glue around the edges of the windshield. Given this changed technology, we believed it was appropriate to treat opaque coatings around the edge of the windshield in the same manner as moldings, in interpreting the term "daylight opening" in FMVSS No. 104.

After considering your letter, we continue to believe that this is true only for what Jaguar referred to as "complete blackout" or "truly opaque" areas. The dot fade area is not truly opaque and does not cover the adhesive.We therefore do not consider it analogous to moldings or to the "edge of a molding." (The edge of a molding is a part of the molding and is opaque.) If anything, the dot fade area is more analogous to shade bands, which are not obstructions. Since a dot fade area neither constitutes a physical obstruction nor is opaque, it comes within the definition of "daylight opening."

We note that in a letter dated February 24, 2004, you cited a letter from the Vehicle Certification Agency of Great Britain concerning its interpretation of the term "daylight opening" under the applicable ECE regulation and direction. However, that agency was providing an interpretation of different language with different origins from that included in FMVSS No. 104.

Because there has been some confusion within the industry regarding the proper interpretation of the term "daylight opening," we will begin enforcing FMVSS No. 104 consistent with our May 6, 2003, interpretation beginning with vehicles manufactured on September 1, 2005.

If you have any further questions, please contact Ms. Dorothy Nakama at this address or at (202) 366-2992.

Sincerely,

Jacqueline Glassman
Chief Counsel

ref:104
d.3/31/04

ID: 007901.jeg

Chris Tinto, Director
Toyota North America, Inc.
1850 M Street
Suite 600
Washington, DC 20036




Dear Mr. Tinto:

This responds to your request for an interpretation of Federal Motor Vehicle Safety Standard No. 208, Occupant Crash Protection, with regards to adjusting the seat back angle for the low risk deployment tests for the driver. You asked about the order of the seat adjustments for the chin on module test (S26.2) and the chin on rim test (S26.3).

As you noted in your letter, the same seat adjustment procedure is specified for both tests. S26.2.3 and S26.3.1 read as follows:

Place the seat and seat cushion in the position achieved in S16.2.10.3.1. If the seat or seat cushion is adjustable in the vertical direction by adjustments other than that which primarily moves the seat or seat cushion fore-aft, determine the maximum and minimum heights of the SCRP at this position, while maintaining the seat cushion reference line angle as closely as possible.Place the SCRP in the mid-height position. If the seat back is adjustable independent of the seat, place the seat back at the manufacturer's nominal design seat back angle for a 50th percentile adult male as specified in S8.1.3.Position any adjustable parts of the seat that provide additional support so that they are in the lowest or most open adjustment position.Position an adjustable head restraint in the lowest and most forward position. (Emphasis added.)

In your letter, you indicated that the seat back angle may vary depending on when it is adjusted during this procedure.You stated your belief that the adjustment of the seat back angle specified in the fourth (underlined) sentence of this paragraph is conducted after the adjustments specified in the previous sentences, and asked us to confirm that view.

It is our opinion that the various seat adjustments specified in S26.2.3 and S26.3.1 are to be made in the order specified in those paragraphs.Accordingly, we agree that the adjustment of the seat back angle specified in the fourth (underlined) sentence of this paragraph is conducted after the adjustments specified in the previous sentences.

I hope this information is helpful.If you have any further questions, please call Edward Glancy of my staff at (202) 366-2992.

Sincerely,

Jacqueline Glassman
Chief Counsel

ref:208
d.1/1/05