ID: aiam2826

Dear Mr. VanderLinden: Administrator Claybrook has asked me to respond to your recent lette concerning the installation of safety belts in the cargo area of a van vehicle for the purpose of securing wheelchair patients. Apparently, your legal counsel has advised you that such installation might be prohibited by Federal law or might give rise to private litigation problems in the future.; In answer to your questions, there is nothing under Federal law or th Federal motor vehicle safety standards that would prevent the installation of safety belts in the cargo area of a van to secure wheelchairs. In fact, Administrator Claybrook and the National Highway Traffic Safety Administration encourage you to make the installation requested by the senior citizens home. The safe transportation of disabled persons is currently a serious problem and every effort should be made to ameliorate the situation.; The only instance in which you would have any responsibilities unde Federal law would be an installation of additional safety belts prior to first purchase of the van by a consumer. In that case you would be a vehicle alteror, (sic) and under our certification regulations you would be required to place an additional label on the vehicle specifying that, as altered, the vehicle is still in compliance with all applicable safety standards (49 CFR 567.7, copy enclosed). For example, you should not destroy the vehicle's compliance with our Fuel System Integrity standard by penetrating the gas tank with the safety belt anchorage bolts.; Concerning your liability in private litigation, the general provision of negligence law would be applicable, as with any maintenance, repair or alteration done by a motor vehicle repair business. I must defer to the advice of your own counsel on that matter, however.; Once again, the agency does encourage the installation of safety belt for the securement of wheelchairs, since the disabled are seriously endangered without some type of restraint to protect them in a crash. Further, I believe that your fears of liability should be minimal as long as the installation is accomplished with normal consideration and due care.; Please contact Hugh Oates of my office if you have any furthe questions (202-426- 2992).; Sincerely, Joseph J. Levin, Jr., Chief Counsel

ID: Koito.2

Mr. Takayuki Amma
Manager, Regulations & Certification
Koito Manufacturing Co., Ltd.
4-8-3, Takanawa
Minato-ku Tokyo
Japan




Dear Mr. Amma:

This responds to your recent letter, in which you asked whether it would be permissible under Federal Motor Vehicle Safety Standard (FMVSS) No. 108, Lamps, Reflective Devices, and Associated Equipment, to manufacture and sell a headlamp that automatically reduces intensity when the vehicle is stopped. Your letter stated that the lamp (which includes a fail-safe performance feature) would operate at full intensity when the vehicle is in forward motion, but that an electronic light source control gear would reduce the intensity once the vehicle comes to a rest. According to your letter, "[a]t all times through the change of the intensity, the lamps provide sufficient level of intensity and will be within the parameters of the minimum and maximum values of candela specified in FMVSS No. 108," and you further suggested that such headlamps would have the potential for significant energy conservation (about a 20-40% reduction in wattage), depending upon the optical design of the headlamps. As discussed below, we believe that the intensity-reducing headlamps described in your letter would not be permissible under FMVSS No. 108, because the would not meet the "steady-burning" requirement of S5.5.10.

By way of background, the National Highway Traffic Safety Administration (NHTSA) is authorized to issue FMVSSs that set performance requirements for new motor vehicles and items of motor vehicle equipment. It is the responsibility of manufacturers to certify that their products conform to all applicable safety standards before they can be offered for sale (see 49 CFR Part 571). 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.49 U.S.C. 30122.

As you are aware, the requirements for lighting equipment are contained in FMVSS No. 108, which provides in relevant part:

S5.5.10 The wiring requirements for lighting equipment in use are:
(a) Turn signal lamps, hazard warning signal lamps, and school bus warning lamps shall be wired to flash;
(b) Headlamps and side marker lamps may be wired to flash for signaling purposes;
(c) A motorcycle headlamp may be wired to allow either its upper beam or its lower beam, but not both, to modulate from a higher intensity to a lower intensity in accordance with section S5.6;
(d) All other lamps shall be wired to be steady-burning.

In short, S5.5.10(d) of FMVSS No. 108 requires that all lamps must be "steady burning," unless otherwise permitted, and while S5.5.10(b) does permit headlamps to be wired to flash for signaling purposes, we note that paragraph S3 of FMVSS No. 108 defines "flash" as meaning "a cycle of activation and deactivation of a lamp by automatic means."

Your proposed headlamp would not fall within any of the standards express exceptions, and therefore, must be "steady-burning." Through our interpretations, we have explained that the "steady-burning" requirement under the standard means "a light that is essentially unvarying in intensity" (see e.g., February 9, 1982, letter of interpretation to Dr. H.A. Kendall). However, as stated in your letter, your proposed headlamp would routinely experience perceptible intensity changes resulting in a 20-40% reduction in wattage, so the lamp would not meet above definition of "steady-burning."

There are several reasons for the requirement for headlamps to be steady-burning. For example, several States have expressed concern that lights of variable intensity could be confused with emergency vehicles, which are allowed to have flashing headlamps. We also note that motorcycle headlamp modulation, while permitted under S5.5.10(c), must meet the requirements of S7.9.4; the modulation rate is regulated to prevent seizures in susceptible individuals. Furthermore, we believe that motor vehicle safety is best promoted by standardization of lighting signals.

In your letter, you pointed to our July 21, 1998, letter of interpretation to Mr. Ian Goldstein in support of your position that Standard No. 108 should permit headlamps that reduce intensity when stopped. The letter to Mr. Goldstein discussed "gradational" daytime running lamps (DRLs), devices that are capable of modulating the intensity of the DRLs according to ambient light conditions. You quoted from the portion of that letter which provides, "The standard does not prohibit changes in intensity, which we presume will be within the parameters of the minimum and maximum values of candela specified".However, your letter omitted the immediately preceding sentence, which provided, "A DRL with a gradational feature would continue to provide the steady-burning light that is required for DRLs".

The situation presented in your letter is distinguishable from the one presented in our letter to Mr. Goldstein. In the case of gradational DRLs, the lamps would be expected to determine an appropriate level of intensity based upon ambient lighting conditions and then maintain that level until conditions had changed sufficiently to potentially warrant a further change in intensity. In that case, intensity changes would be expected to occur infrequently and could occur gradually, such that the change would not be perceptible to oncoming drivers.

In contrast to gradational DRLs, the changes in intensity that would accompany your proposed headlamp design would be anticipated to result in frequent modulation, particularly during instances of stop-and-go city driving. Assuming that the intensity change is perceptible, we believe that such a design could be a source of distraction to other drivers, which could have negative consequences for safety. Accordingly, we believe that the headlamp design presented in your letter would not meet the requirements of S5.5.10 of FMVSS No. 108.

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

Sincerely,

Jacqueline Glassman
Chief Counsel

ref:108
d.8/1/05

ID: nht76-5.51

DATE: 03/23/76

FROM: AUTHOR UNAVAILABLE; F. Berndt; NHTSA

TO: Department of Transportation - New York

TITLE: FMVSS INTERPRETATION

TEXT: This responds to your February 20, 1976, question whether this agency considers Standard No. 222, School Bus Passenger Seating and Crash Protection, preemptive of New York State law or regulations mandating a 28-inch-high seat back and armrests for school bus passenger seating. Section 103(d) provides (15 U.S.C. @ 1392(d)):

@ 103

(d) Whenever a Federal motor vehicle safety standard under this subchapter is in effect, no State or political subdivision of a State shall have any authority either to establish, or to continue in effect, with respect to any motor vehicle or item of motor vehicle equipment any safety standard applicable to the same aspect of performance of such vehicle or item of equipment which is not identical to the Federal standard. Nothing in this section shall be construed to prevent the Federal Government or the government of any State or political subdivision thereof from establishing a safety requirement applicable to motor vehicle equipment procured for its own use if such requirement imposes a higher standard of performance than that required to comply with the otherwise applicable Federal standard.

Standard No. 222 specifies a formula for minimum seat back height that necessitates a height of at least 20 inches. It is the opinion of the NHTSA that any State requirement relating to seat back height, other than one identical to the Federal formula that establishes a minimum height of 20 inches, is preempted under @ 103(d).

The second sentence of @ 103(d) clarifies that the limitation on safety regulations of general applicability does not prevent governmental entities from specifying additional safety features in vehicles purchased for their own use. Thus, New York State or its political subdivisions could specify a seat back height higher than 20 inches in the case of public school buses. The second sentence does not, however, permit these governmental entities to specify safety features that prevent the vehicle or equipment from complying with applicable safety standards. A school bus manufacturer must continue to comply with all applicable standards.

There are presently no requirements in Standard No. 222 dealing with armrests on school bus passenger seating. The question, therefore, becomes whether the Federal safety standards on school bus seating performance were intended generally to cover this aspect of performance, analogously to the situation in which Standard 108 was held to be preemptive in Motorcycle Industry Council v. Younger, No. CIV 574-126 (E. D. Cal. 1974). The guiding rule, as set forth by the U.S. Supreme Court in Florida Lime & Avocado Growers v. Paul, 373 U.S. 132, 141-142 (1963), is "whether both regulations can be enforced without impairing federal superintendence of the field." Under the accepted doctrines as set forth in cases such as Thorpe v. Housing Authority of Durham, 393 U.S. 268 (1969), and Chrysler v. Tofany, 419 F. 2d 499, 511-12 (2d Cir. 1969), the interpretation of this question by the administering agency is "of controlling weight unless it is plainly erroneous or inconsistent with the regulation."

The NHTSA has determined that the requirement for armrests by New York State does not conflict with or otherwise impair our present regulation of school bus passenger seating, and that armrests are not within the intended scope of the present Federal safety standards. Therefore, Standard No. 222 is not preemptive of the New York State regulation of armrests.

YOURS TRULY,

February 20, 1976

Robert L. Carter Associate Administrator Motor Vehicle Programs National Highway Traffic Safety Administration

In 1974 the New York State Legislature enacted a law that specified that all seats in school buses having a capacity of more than 11 passengers would have to be 28 inches high effective January 1, 1976. Recently the National Highway Traffic Safety Administration announced the adoption of a new Motor Vehicle Safety Standard No. 222 identified as School Bus Passenger Seating and Crash Protection, and identified it as Section 751.222 of Part 751 of Title 49, Code of Federal Regulations, to become effective October 26, 1976, which specifies under S5.1.2 that the seat back height must be 20 inches.

It has been called to our attention that under Section 103(d) of the National Traffic and Motor Vehicle Safety Act that whenever a Federal motor vehicle safety standard is in effect no state or political subdivision shall have any authority, either to establish or continue in effect, with respect to any motor vehicle or item of motor vehicle equipment any safety standard applicable to the same aspect of performance of such vehicle or item of equipment which is not identical to the Federal standard. To date we have had differing opinions from representatives of the Federal Department of Transportation as to how we are to interpret this clause. So that we may set the records straight, we would like an official determination from your agency as to whether or not New York State can legally retain the requirement of 28 inch high back seats once the Federal standard dealing with seat back heights becomes effective on October 26, 1976.

Although not specifically addressed in the section dealing with school bus passenger seating and crash protection, we would also like to know whether or not an additional requirement in New York dealing with armrests on all seats in school buses having a seating capacity of more than 11 persons would be considered contrary to the standard. Since the standard does not include provision for armrests, it is possible to interpret it as meaning that armrests are not allowed.

Should you have any question as to what we are attempting to resolve, please feel free to call me on Phone # A.C. 518 - 457-1010, and we would hope to hear from you in the near future as to your reaction to our questions. You can address your reply to Mr. Martin V. Chauvin, Traffic and Safety Division, Department of Transportation, 1220 Washington Avenue, Albany, New York 12232.

WILLIAM G. GALLOWAY, Director Traffic and Safety Division

By

MARTIN V. CHAUVIN, Chief Carrier Safety Bureau

ID: nht95-3.64

TYPE: INTERPRETATION-NHTSA

DATE: July 31, 1995

FROM: Dennis G. Moore -- President, Sierra Products Inc.

TO: Chief Council -- NHTSA

TITLE: Legal Interpretation Request for FMVSS # 108

ATTACHMT: ATTACHED TO 9/20/95 LETTER FROM JOHN WOMACK TO DENNIS G. MOORE (A43; REDBOOK 2; STD. 108)

TEXT: Around 1985 * , NHTSA significantly reduced the Amber (Yellow) Photometric output minimals for all Rear Amber Turn Signal Lights. This reduction was implemented, I believe, partially as an act of Common Sense and partially as a positive Harmonization ge sture to European Vehicle Safety people. Whereas these European Safety people did then and still do require "significantly less" Amber Photometric Output area, which was not correspondingly reduced when NHTSA reduced the required Photometric Output. Fu rther, the Europeans still require significantly less Area for Amber lenses than the U.S. still requires.

* Presently I can't find the Federal Register Announcement with Details on this issue, however, I will attempt to send it later. I do know this data is readily available from your Docket Files.

European Safety leaders, I've been told, have "tests" that substantiate their position that a "Smaller" and less bright Amber Turn Singal yields "less conspicuosity", which is a desirable feature when compared to the Conspicuosity demanded by the Very Im portant Red Brake Lights . . . and rightfully so. As one can see for themselves . . . just the fact that a Turn Signal is Amber and not Red (as are all other Rear Safety Lights) makes it adequately "conspicuous", even if it is "smaller" and significantl y less bright compared to the Brake Lights.

Also, European Scientists contend they have always had a "safer system" than the U.S. System as they have always required Two Brightly Lit Brake Lights, whereas the U.S. System allows only One Brake Light to be illuminated, leaving the other as a "Red" T urn (Blinking) Signal -- They contend that the U.S. approach can confuse the human mind and in fact, perhaps be comprehended as an Impending Turn and "not specifically" as a Braking Action whereas their system using. Two Brake Lights - both clearly Lit - means nothing but "Braking . . . Danger!"

They indicate that their smaller in size and brightness, Rear Amber Turn Signal "clearly indicates" to following traffic the situation when a Turn is occurring by itself or simultaneously with the Braking Action.

In any case, I believe our U.S. NHTSA Rulemakers of several years past were in error or experienced an oversight when they reduced and Harmonized the U.S.'s Rear Amber Turn Singal's required output but at the same time did not reduce the "Area" of output which would have kept the "Density * "of U.S. Amber Lights output about the same as the Europeans have found to be effective . . . thus making the U.S. more or less completely Harmonized with the New EU Specifications effective January 1, 1996.

* "Density", a better layman's term than getting into Luminesec and Luminous intensity . . . at this time.

Any American that is actively involved in the Manufacturing of Vehicle Lights knows it is ludicrous to require U.S. Manufacturers to Design Amber Turn Singal lenses in the 12in<2> range * , and then ask them to try and Balance our Trade by attempting to sell larger than necessary (therefore more expensive Lights) in Europe whereas European Manufacturers enjoy the advantage over U.S. Manufacturers of less expense simply because of size.

* which is what is now required for Big Rig and RV Rear Amber Turn Signals

I am asking that a better Trade Balance Policy be adopted as well as seeing that Common Sense reasoning prevails at NHTSA by asking that this situation be corrected.

If NHTSA's Legal Council feels this error should be corrected through the Petitioning Process, I ask that this writing be considered a "Petition for Change of FMVSS # 108 Request" and given consideration for "rapid processing" through the Public Commenti ng period. I seriously doubt if any American Company or Engineer is in possession of any Scientific Data that would refute what reasoning and facts I have presented here. By reducing the minimal area of the Amber Turn Signal light lens from 12 in<2> to approximately 8 in<2> or 6 in<2>, the U.S. would have more practical Rules for U.S. Exports at no expense to Safety.

Please handle this expendiently!

Yours truly,

Dennis G. Moore President

P.S. Please understand that I believe I speak primarily for the "Big Rig", Small Trailer and RV Type Lighting Manufacturers in the U.S., not for the typical S.A.E. Detroit Auto Designer and/or Auto Engineer.

My type of manufacturing is forced, through extreme competition pressure, to make Multi-purpose Rear Lights for about $ 3.00 each in order to be competitive here in the U.S., whereas, Detroit Auto Stylists know that small Amber Turn Signal Lights on Auto s look puny and degrading to their potential customers. They know the bigger these Amber Lenses are, the better they look, the more they cost, and, therefore, the more overall profit is made on them as they are broken and replaced during the life of the Vehicle. Therefore, Detroit stylists and economists don't really want small sized Amber Turn Signals even if they know that small ones do the Safety Job they're intended to do -- they must compete in "Styling" whereas larger and more elaborate lights se ll cars and makes them more money in the long run than what would be saved on small lights, whereas this is not at all true with "Other" Vehicle Lighting Manufacturers like I represent who are trying to Compete in the U.S. and Europe in the Non-Auto Vehi cle Lighting business.

I believe, and apparently so do most European Safety people, that Location, Color and the Density * Output of a Safety Light is more important for "Conspicuosity" than a large lens with low output.

ID: nht95-5.43

TYPE: INTERPRETATION-NHTSA

DATE: July 31, 1995

FROM: Dennis G. Moore -- President, Sierra Products Inc.

TO: Chief Council -- NHTSA

TITLE: Legal Interpretation Request for FMVSS # 108

ATTACHMT: ATTACHED TO 9/20/95 LETTER FROM JOHN WOMACK TO DENNIS G. MOORE (A43; REDBOOK 2; STD. 108)

TEXT: Around 1985 * , NHTSA significantly reduced the Amber (Yellow) Photometric output minimals for all Rear Amber Turn Signal Lights. This reduction was implemented, I believe, partially as an act of Common Sense and partially as a positive Harmonization gesture to European Vehicle Safety people. Whereas these European Safety people did then and still do require "significantly less" Amber Photometric Output area, which was not correspondingly reduced when NHTSA reduced the required Photometric Output. Further, the Europeans still require significantly less Area for Amber lenses than the U.S. still requires.

* Presently I can't find the Federal Register Announcement with Details on this issue, however, I will attempt to send it later. I do know this data is readily available from your Docket Files.

European Safety leaders, I've been told, have "tests" that substantiate their position that a "Smaller" and less bright Amber Turn Singal yields "less conspicuosity", which is a desirable feature when compared to the Conspicuosity demanded by the Very Important Red Brake Lights . . . and rightfully so. As one can see for themselves . . . just the fact that a Turn Signal is Amber and not Red (as are all other Rear Safety Lights) makes it adequately "conspicuous", even if it is "smaller" and significantly less bright compared to the Brake Lights.

Also, European Scientists contend they have always had a "safer system" than the U.S. System as they have always required Two Brightly Lit Brake Lights, whereas the U.S. System allows only One Brake Light to be illuminated, leaving the other as a "Red" Turn (Blinking) Signal -- They contend that the U.S. approach can confuse the human mind and in fact, perhaps be comprehended as an Impending Turn and "not specifically" as a Braking Action whereas their system using. Two Brake Lights - both clearly Lit - means nothing but "Braking . . . Danger!"

They indicate that their smaller in size and brightness, Rear Amber Turn Signal "clearly indicates" to following traffic the situation when a Turn is occurring by itself or simultaneously with the Braking Action.

In any case, I believe our U.S. NHTSA Rulemakers of several years past were in error or experienced an oversight when they reduced and Harmonized the U.S.'s Rear Amber Turn Singal's required output but at the same time did not reduce the "Area" of output which would have kept the "Density * "of U.S. Amber Lights output about the same as the Europeans have found to be effective . . . thus making the U.S. more or less completely Harmonized with the New EU Specifications effective January 1, 1996.

* "Density", a better layman's term than getting into Luminesec and Luminous intensity . . . at this time.

Any American that is actively involved in the Manufacturing of Vehicle Lights knows it is ludicrous to require U.S. Manufacturers to Design Amber Turn Singal lenses in the 12in<2> range * , and then ask them to try and Balance our Trade by attempting to sell larger than necessary (therefore more expensive Lights) in Europe whereas European Manufacturers enjoy the advantage over U.S. Manufacturers of less expense simply because of size.

* which is what is now required for Big Rig and RV Rear Amber Turn Signals

I am asking that a better Trade Balance Policy be adopted as well as seeing that Common Sense reasoning prevails at NHTSA by asking that this situation be corrected.

If NHTSA's Legal Council feels this error should be corrected through the Petitioning Process, I ask that this writing be considered a "Petition for Change of FMVSS # 108 Request" and given consideration for "rapid processing" through the Public Commenting period. I seriously doubt if any American Company or Engineer is in possession of any Scientific Data that would refute what reasoning and facts I have presented here. By reducing the minimal area of the Amber Turn Signal light lens from 12 in<2> to approximately 8 in<2> or 6 in<2>, the U.S. would have more practical Rules for U.S. Exports at no expense to Safety.

Please handle this expendiently!

Yours truly,

Dennis G. Moore President

P.S. Please understand that I believe I speak primarily for the "Big Rig", Small Trailer and RV Type Lighting Manufacturers in the U.S., not for the typical S.A.E. Detroit Auto Designer and/or Auto Engineer.

My type of manufacturing is forced, through extreme competition pressure, to make Multi-purpose Rear Lights for about $ 3.00 each in order to be competitive here in the U.S., whereas, Detroit Auto Stylists know that small Amber Turn Signal Lights on Autos look puny and degrading to their potential customers. They know the bigger these Amber Lenses are, the better they look, the more they cost, and, therefore, the more overall profit is made on them as they are broken and replaced during the life of the Vehicle. Therefore, Detroit stylists and economists don't really want small sized Amber Turn Signals even if they know that small ones do the Safety Job they're intended to do -- they must compete in "Styling" whereas larger and more elaborate lights sell cars and makes them more money in the long run than what would be saved on small lights, whereas this is not at all true with "Other" Vehicle Lighting Manufacturers like I represent who are trying to Compete in the U.S. and Europe in the Non-Auto Vehicle Lighting business.

I believe, and apparently so do most European Safety people, that Location, Color and the Density * Output of a Safety Light is more important for "Conspicuosity" than a large lens with low output.

ID: nht88-1.74

TYPE: INTERPRETATION-NHTSA

DATE: 03/16/88 EST

FROM: ERIKA Z. JONES -- NHTSA CHIEF COUNSEL

TO: MORRIS EAST -- ASSISTANT DIRECTOR, LOUISIANA BUREAU OF SCHOOL TRANSPORTATION

TITLE: NONE

ATTACHMT: JULY 7, 1987 LETTER FROM EAST TO JONES IS ATTACHED

TEXT: This letter responds to your request for an interpretation of certain Federal motor vehicle safety standards that apply to school buses. I apologize for the delay in this response. In your letter, you state that one of your local school systems intends to remove a bus body from "an existing chassis, and place that body onto a new chassis." You state further that the system's school bus maintenance shop would perform the work. You ask a number of questions which I shall answer in order. My answers as sume that, at a minimum, the engine, drive axles, and transmission of the new chassis are new components.

Question 1: Is it permissible under the (Vehicle Safety Act as amended) for a local school board to remove the body from one school bus chassis and place that body on another school bus chassis?

The answer to this question is "yes." The Act does not prohibit a vehicle owner from altering, modifying, or manufacturing a vehicle; nor has NHTSA established such a prohibition in its regulations.

Question 2: Would this action (in Question 1) violate bus body integrity requirements of Federal Motor Vehicle Safety Standards (FMVSS) (specifically FMVSS 208, 220, 221)?

The act of removing a school bus body from one chassis and placing that body on a different chassis does not violate any Federal safety standard. However, when a person uses a new body and mixed new and used chassis components in refurbishing a vehicle, the question arises whether the vehicle is new. In past interpretations, NHTSA has applied @ 571.7(e) to school buses that combine a new body and either (1) mixed new and used chassis components, or (2) used chassis components from different vehicles. If a school bus is considered "new" under the criteria set out in this provision, then the person who refurbishes the vehicle must

certify that the school bus meets all applicable safety standards in effect on the date the chassis was manufactured - including Standards 208, 220, and 221 if they apply - and affix a certification label under 49 CFR Part 567.

On the other hand, if an old bus body is placed on a chassis that is completely new, a different provision applies. In this case, the chassis is an incomplete vehicle. "Incomplete vehicle" is defined in 49 CFR @ 568.3 as: an assemblage consisting, as a minimum, of a frame and chassis structure, power train, steering system, suspension system, and braking system, to the extent that those systems are to be part of the completed vehicle, that requires further manufacturing operations, other than the ad dition of readily attachable components, such as mirrors or tire and rim assemblies, or minor finishing operations such as painting, to become a completed vehicle.

When a new bus chassis meets this description, a subsequent person who adds a body - even an old body - is a final-stage manufacturer, and must certify the completed vehicle as conforming to all applicable Federal Motor Vehicle Safety Standards as of a d ate no earlier than the manufacturing date of the incomplete vehicle (the new chassis). (49 CFR @ 567.5, Requirements for Manufacturers of Vehicles Manufactured in Two or More Stages.)

Neither @ 571.7(e) nor Part 568 would require a person to recertify a school bus when the body and all other vehicle components are not new.

Question 3: If permitted, can the work described in (Question) 1. above be performed in the school board's maintenance shop? Can it be contracted to an automobile dealer capable of performing such work? Can the work be contracted to other motor vehi cle repair shops such as body dealers or private motor vehicle repair shops?

The answer to each of these statements is "yes." Remember, though, that if the refurbished buses are considered new under the criteria discussed in Question 2, they must meet all applicable school bus safety standards in effect on the date of manufacture , and a certification label must be affixed to each refurbished vehicle to that effect.

If the refurbished buses are not "new" under these same criteria, then there is no obligation to recertify the vehicles. However, if a manufacturer, dealer, distributor, or motor vehicle repair business works on your buses, then there is restriction on what these commercial businesses can do - even if the vehicle is used. Section 108(a)(2)(A) of the Vehicle Safety Act prohibits these persons from "knowingly rendering inoperative" any device or element of design incorporated into the vehicle in complia nce with an applicable Federal safety standard. Note that this restriction does not apply when the vehicle owner (e.g., a local school system) makes a modification, or if a repair facility that does not hold itself out to the public as being in the busi ness of motor vehicle repair (e.g., a maintenance shop that works only for the school board) makes the modification.

Question 4: If the changeover is allowed, must the new unit (new chassis with used body) be re-certified to meet FMVSS requirements? If it must be re-certified, who may provide the inspection and re-certification?

As I stated in my answers to Questions 2 and 3, under certain circumstances, the vehicle must be recertified by the refurbisher. The refurbisher is responsible for the vehicle's compliance status just as any vehicle manufacturer, and must be able to sho w that he exercised due care in certifying the vehicle. The agency examines issues of due care on a case-by-case basis evaluating all relevant facts. This evaluation would include assessing technological limitations, availability of test equipment, the market position of the manufacturer, and most importantly, the degree of manufacturer diligence.

I hope you find this information helpful.

ID: NYBILL22661

Terry W. Wagar, Vehicle Safety Technical Analyst III
Technical Services Bureau
NYS Department of Motor Vehicles
6 Empire State Plaza, Room 111
Albany, NY 12228





Dear Mr. Wagar:

This responds to your letter and telephone calls asking whether a proposed New York State bill (A00359) would be preempted by Federal law, in light of a possible inconsistency with Federal Motor Vehicle Safety Standard (FMVSS) No. 205. I regret the delay in responding. Your correspondence attached a version of the bill and expressed concern regarding an amendment to the original language of the bill which imposes light transmittance requirements on windows to the left and right of the driver on sport utility vehicles (SUVs) and other multipurpose passenger vehicles (MPVs). Based on our understanding of your correspondence and telephone conversations with staff, we believe that the legislation would not be preempted.

BACKGROUND

According to your correspondence, New York's amended proposed law states, in relevant part:

(b) No person shall operate any motor vehicle upon any public highway, road or street:

* * *

(4) the rear window of which is composed of, covered by or treated with any material which has a light transmittance of less than seventy percent. A rear window may have a light transmittance of less than seventy percent if the vehicle is equipped with side mirrors on both sides of the vehicle so adjusted that the driver thereof shall have a clear and full view of the road and condition of traffic behind such vehicle.

The proposed State law pertains to the light transmittance of the rear window of SUVs and other MPVs, which is an aspect of performance regulated by Federal Motor Vehicle Safety Standard No. 205, Glazing Materials (49 CFR '571.205). The standard specifies performance requirements and permissible locations for the types of glazing that may be installed in motor vehicles. The standard requires some glazing to allow 70 percent of the incident light to pass through. For buses, trucks, and multipurpose passenger vehicles (MPV's), the standard specifies the 70 percent light transmittance requirement for glazing installed in the windshield, the windows to the immediate left and right of the driver, and any rear window that is used for driving visibility.

The proposed State standard also pertains to the requirements of Federal Motor Vehicle Safety Standard No. 111, Rearview Mirrors (49 CFR '571.111). The standard at S6.1 requires that MPVs, trucks and buses with a GVWR of 4,536 kg or less must have either (a) a passenger car mirror system, which includes an inside rear view mirror; or (b) a light truck mirror system, which requires unit magnification (flat) outside rear view mirrors of a minimum size on each side of the vehicle. In vehicles using the passenger car mirror system, the rear window is used for visibility. An inside mirror is not required for use with the light truck mirror system.

Whether the proposed New York law would be preempted under our statute is determined by '30103(b) of 49 U.S.C. Chapter 301, which states in part:

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

NHTSA safety standards apply to the manufacture and sale of new motor vehicles and motor vehicle equipment. (49 U.S.C. 30112.) Thus, pursuant to 49 U.S.C. 30103(b), state laws that apply to the manufacture and sale of new vehicles, and to the same aspect of performance, must be identical to the FMVSS.

However, NHTSA does not regulate the operation (i.e., use) of motor vehicles, which is generally under the jurisdiction of the States. Federal law does not require New York to set operational requirements that are "identical" to the FMVSS. Nonetheless, there are limits on State operational requirements, in that general principles of preemption law apply. These principles preclude States from adopting operational requirements that are more stringent than the requirements applicable to new vehicles under the FMVSS, because more stringent State requirements would have the effect of precluding the use of a Federally compliant vehicle in that State.

ANALYSIS

The proposed New York law would appear to be more stringent than the FMVSS, in that it would prohibit the windows to the rear of the driver on the left and right from having a light transmittance of less than 70 percent. However, NHTSA has determined in a 1998 rulemaking that the light transmittance levels of light truck and MPV rear glazing not used for driving visibility and light truck and MPV rear side glazing are not regulated under FMVSS No. 205, and that States are therefore free to set transmittance levels for those windows on those vehicles. Withdrawal of notice of proposed rulemaking, July 14, 1998, 63 FR 37820. Thus, we conclude that the proposed New York law would not be preempted and that New York could prohibit the operation of light trucks and MPVs with rear windows that have a minimum light transmittance of less than 70 percent.

In addition, the proposed New York law would be less stringent than the FMVSS for mirrors because the New York law merely requires two outside mirrors rather than mirrors complying with the light truck mirror system in S6.1(b) of FMVSS No. 111. Therefore, we conclude that the proposed New York law would not be preempted under '30103(b).

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

Sincerely,

John Womack
Acting Chief Counsel

Enclosure
ref:205
d.11/9/01

ID: 7577

Mr. J. W. Lawrence
Manager, Compliance and Technical Legislation
Volvo GM Heavy Truck Corporation
P.O. Box 26115
Greensboro, NC 27402-6115

Dear Mr. Lawrence:

This responds to your March 5, 1992 letter to the Administrator on the subject "Petition for Rulemaking - FMVSS 108 Turn Signal Installation Requirements."

In that letter, Volvo GM petitioned "for the revocation of the 'Figure 2' requirements published in the December 12, 1991, Register. . . ." However, the notice published on that date (56 FR 64733) was not an amendment of Federal Motor Vehicle Safety Standard No. 108. Instead, it was only a denial of a petition for rulemaking to allow tail lamps on vehicles 80 inches or wider to be mounted at locations up to 24 inches forward of the extreme rear of the vehicle, and to allow turn signal and stop lamps to be mounted up to 60 inches forward of the rear instead of "on the rear" as required by Standard No. 108. Paragraph S5.3.1.1 of Standard No. 108 expresses the general requirement that lamps be located so as to meet the visibility requirements specified in any applicable SAE standard. Figure 2 was included in the notice to illustrate the agency's interpretation of the visibility requirements for stop, tail, and turn signal lamps set forth in specific SAE vehicle lighting standards incorporated by reference in Standard No. 108. A copy of that figure is enclosed. However, Figure 2 is not incorporated into Standard No. 108 itself.

Since Figure 2 is not part of Standard No. 108, a petition for rulemaking is not the appropriate way to address the problem you have raised. Accordingly, we are treating your letter as a request to change our interpretation of the SAE's specifications. As explained below, the agency is adopting a new interpretation that is consistent with your concerns and arguments.

The rationale for the agency's denial of the petition was that the amendments requested would adversely affect the ability of the lamps to meet the SAE specifications incorporated into Standard No. 108 that the lamps on both sides of a vehicle's rear end be simultaneously visible from any angle between and including 45-degree angles to the rear left and right of the vehicle. As noted above, Figure 2 pictorially represents NHTSA's interpretation of the SAE's uniform geometric visibility requirements. Using the SAE standard for turn signal lamps on wide vehicles as an example, NHTSA provided the following quotation from J1395:

"Signals from lamps on both sides of the vehicle shall be visible through a horizontal angle from 45 deg. to the left for the left lamp to 45 deg. to the right for the right lamp. * * * To be considered visible, the lamp must provide an unobstructed view of the outer lens surface, excluding reflex of at least 13 sq. cm. measured at 45 deg. to the longitudinal axis of the vehicle."

Since the SAE measurement of photometry is made at a distance of 3 meters from the lamp, NHTSA also stated that compliance with the visibility requirements is to be determined at a distance of 3 meters.

NHTSA's interpretation of the SAE language quoted above, which Figure 2 illustrates, and which you have found objectionable, was:

"Thus, the turn signals on both sides of the vehicle must be simultaneously visible through a horizontal angle from 45 degrees originating at the left lamp, to the left to 45 degrees to the right originating at the right lamp measured at a radius of 3 meters."

You state that the term "simultaneously visible" does not appear in the SAE specifications. You also argue that the 3 meter requirement has no connection to the 45-degree installation visibility. These issues have also been raised with us by the Motor Vehicle Manufacturers Association (MVMA), which met with us to express its views, not only on turn signal lamps, but stop and tail lamps as well, and by Ford Motor Company, and Freightliner, Corp. in several telephone calls. We are furnishing copies of this response to these three parties, as well as to the original petitioner, Truck Trailer Manufacturers Association (TTMA).

First of all, let me assure you that NHTSA had no intention of imposing any new requirements upon industry in its interpretation reflected in Figure 2, and that the reaction of industry to this interpretation came as a surprise to us. Although your letter concerns only the turn signal specifications for wide vehicles, we have reviewed this matter with respect to tail lamps and stop lamps as well, given the concern of other industry members.

Our review has led us to place added weight on the fact that the SAE visibility requirements are not consistently expressed from SAE standard to SAE standard. This difference in expression particularly calls into question our interpretation regarding turn signals. This same difference has led MVMA to apply one interpretation to turn signals, and another to stop and tail lamps. We shall discuss these two interpretations separately, and compare them with NHTSA's single, across-the-board interpretation. Under NHTSA's interpretation, the minimum specified lens area of a left stop, turn signal, or tail lamp, as seen at 45 degrees to the left of that lamp, must also be seen at 45 degrees to the right of the right lamp, and at all degrees in between (and vice versa) when viewed at a 3-meter radius from the rear.

As suggested above, MVMA does not believe that an across- the-board interpretation is appropriate, given the different expression of the turn signal specification for vehicles in J1395 and J588. SAE J1395 provides that visibility is "from 45 deg. to the left for the left lamp to 45 deg. to the right for the right lamp." (Emphasis added.) The first underlined passage suggests that the viewing angle is a left 45 deg. angle, using a line parallel to the vehicle longitudinal axis as the frame of reference for that angle, and that this viewing angle relates to the left signal lamp only. The passage says that the angle is 45 deg. to the left "for" the left lamp, and not 45 deg. to the left of that lamp. The second underlined passage indicates a similar limitation on the applicability of the language regarding the 45 deg. angle to the right. Even more specific is the corresponding requirement in SAE J588 NOV84, Standard No. 108's specification for turn signals on vehicles less than 80 inches wide. It provides: "signals from lamps mounted on the left side of the vehicle shall be visible through a horizontal angle of 45 deg. to the left and signals from lamps mounted on the right side of the vehicle shall be visible through a horizontal angle of 45 deg. to the right." For both wide and narrow vehicles, MVMA interprets the 45 degree left visibility requirement as applying only to the outboard side of the left turn signal lamp, and a 45 degree right visibility requirement only to the outboard side of the right turn signal lamp. NHTSA agrees that MVMA's interpretation regarding turn signal lamps is more fully consistent than NHTSA's interpretation with the language of these SAE standards. Adopting this interpretation moots the question of the particular distance at which visibility is to be determined. However, the fact that the SAE standard did not specify a measurement distance tends to strengthen the case for the MVMA interpretation since its interpretation obviates the need for a measurement distance, while the former NHTSA interpretation necessitated one. The MVMA and TTMA interpretations of the stop and tail lamp requirements are less clearly superior to NHTSA's in their faithfulness to the language of the SAE standards. Indeed, whether any of the competing interpretations is superior in this regard is harder to assess because the language regarding these lamps is more ambiguous. The SAE specifications for stop and tail lamps, incorporated in Standard No. 108, are respectively J586 FEB84 (narrow vehicles) and J1398 MAY85 (wide vehicles), and J585e Sept. 1977. Under all three of these SAE standards, "signals from lamps on both sides of the vehicle shall be visible through a horizontal angle", which is specified as "of 45 deg. to the left and to 45 deg. to the right" (J586), "of 45 deg. to the left to 45 deg. to the right" (J1398), and "from 45 deg. to the left to 45 deg. to the right" (J585e).

TTMA and MVMA restrict the left-right 45 degree visibility requirement to the individual lamp in a horizontal plane, as shown in Figure 1 of the December 1991 notice. Under this interpretation, the minimum specified lens area that is seen at 45 degrees to the left on the left lamp must be seen at 45 degrees to the right of the left lamp, but need not be seen at 45 degrees to the right of the right lamp (and vice versa). In MVMA's view, there was never an intent by the SAE to expect that the minimum lens area of both lamps would be visible from both sides of the vehicle. MVMA also argued that there was no justification to use the photometric measuring distance of 3 meters to determine visibility.

Some aspects of the SAE standards regarding stop and tail lamps seem to favor the MVMA/TTMA interpretation, while others favor the NHTSA interpretation. For example, if these SAE standards are interpreted in light of the interpretation given above to the SAE turn signal requirements, then those stop and tail lamp standards will be interpreted as specifying angles of visibility whose frame of reference is each individual lamp instead of the vehicle as a whole. As in the case of the turn signal requirement, the absence of a specified measurement distance for stop and tail lamp visibility tends to support an interpretation that does not depend on such a distance being specified. On the other hand, the absence of any language, like that found in J1395, relating the angle or angles of visibility to any individual lamp, suggests a single continuous horizontal angle spanning the entire rear of a vehicle.

NHTSA has decided to adopt the TTMA/MVMA interpretation of the stop and tail lamp visibility requirements. We have said that NHTSA did not intend to impose new burdens on industry by its interpretation, and there appears to be no present safety justification to do so. The existing level of rear lighting safety on the nation's roads is that which is represented by industry's interpretation of the SAE visibility requirements. Thus, there would be no derogation of the existing level of safety by concurring with an industry interpretation. Further, given the lack of clear support for either of the competing interpretations, any attempt by NHTSA to apply its former interpretation to enforce these requirements in a court of law could be very problematic.

This letter will serve as notice to the industry that the agency will follow the interpretations stated herein in its future enforcement activities. The SAE visibility materials do not specify any measurement distance. Therefore, to carry the new interpretation to its proper conclusion, NHTSA is no longer specifying a measurement distance of 3 meters to judge compliance with the visibility requirements. Industry and NHTSA are both in agreement, however, that, wherever located, any of these lamps are required by S5.3.1.1 to continue to meet its photometric output at any applicable group of test points, unless excepted by the subsequent conditions of that paragraph.

Finally, you comment that Table II "does not require the turn signals be located on the rear except for trailers". We do not understand your remark since Table II clearly specifies that turn signal lamps be located on the rear of all vehicles to which the Table applies, and not trailers alone.

Sincerely,

Paul Jackson Rice Chief Counsel

Enclosure

cc: Motor Vehicle Manufacturers Association Truck Trailer Manufacturers Association Ford Motor Company Freightliner Corp.

ref:108 d:10/5/92

ID: nht92-3.25

DATE: October 5, 1992

FROM: Paul Jackson Rice -- Chief Counsel, NHTSA

TO: J. W. Lawrence -- Manager, Compliance and Technical Legislation, Volvo GM Heavy Truck Corporation

COPYEE: Motor Vehicle Manufacturers Association; Truck Trailer Manufacturers Association; Ford Motor Company; Freightliner Corp.

TITLE: None

ATTACHMT: Attached to letter dated 3/5/92 from J. W. Lawrence to Administrator, NHTSA (9203090012)

TEXT:

This responds to your March 5, 1992 letter to the Administrator on the subject "Petition for Rulemaking - FMVSS 108 Turn Signal Installation Requirements."

In that letter, Volvo GM petitioned "for the revocation of the 'Figure 2' requirements published in the December 12, 1991, Register. . . ." However, the notice published on that date (56 FR 64733) was not an amendment of Federal Motor Vehicle Safety Standard No. 108. Instead, it was only a denial of a petition for rulemaking to allow tail lamps on vehicles 80 inches or wider to be mounted at locations up to 24 inches forward of the extreme rear of the vehicle, and to allow turn signal and stop lamps to be mounted up to 60 inches forward of the rear instead of "on the rear" as required by Standard No. 108. Paragraph S5.3.1.1 of Standard No. 108 expresses the general requirement that lamps be located so as to meet the visibility requirements specified in any applicable SAE standard. Figure 2 was included in the notice to illustrate the agency's interpretation of the visibility requirements for stop, tail, and turn signal lamps set forth in specific SAE vehicle lighting standards incorporated by reference in Standard No. 108. A copy of that figure is enclosed. However, Figure 2 is not incorporated into Standard No. 108 itself.

Since Figure 2 is not part of Standard No. 108, a petition for rulemaking is not the appropriate way to address the problem you have raised. Accordingly, we are treating your letter as a request to change our interpretation of the SAE's specifications. As explained below, the agency is adopting a new interpretation that is consistent with your concerns and arguments.

The rationale for the agency's denial of the petition was that the amendments requested would adversely affect the ability of the lamps to meet the SAE specifications incorporated into Standard No. 108 that the lamps on both sides of a vehicle's rear end be simultaneously visible from any angle between and including 45-degree angles to the rear left and right of the vehicle. As noted above, Figure 2 pictorially represents NHTSA's interpretation of the SAE's uniform geometric visibility requirements. Using the SAE standard for turn signal lamps on wide vehicles as an example, NHTSA provided the following quotation from J1395:

"Signals from lamps on both sides of the vehicle shall be visible through a horizontal angle from 45 deg. to the left for the left lamp to 45 deg. to

the right for the right lamp. *** To be considered visible, the lamp must provide an unobstructed view of the outer lens surface, excluding reflex of at least 13 sq. cm. measured at 45 deg. to the longitudinal axis of the vehicle."

Since the SAE measurement of photometry is made at a distance of 3 meters from the lamp, NHTSA also stated that compliance with the visibility requirements is to be determined at a distance of 3 meters.

NHTSA's interpretation of the SAE language quoted above, which Figure 2 illustrates, and which you have found objectionable, was:

"Thus, the turn signals on both sides of the vehicle must be simultaneously visible through a horizontal angle from 45 degrees originating at the left lamp, to the left to 45 degrees to the right originating at the right lamp measured at a radius of 3 meters."

You state that the term "simultaneously visible" does not appear in the SAE specifications. You also argue that the 3 meter requirement has no connection to the 45-degree installation visibility. These issues have also been raised with us by the Motor Vehicle Manufacturers Association (MVMA), which met with us to express its views, not only on turn signal lamps, but stop and tail lamps as well, and by Ford Motor Company, and Freightliner, Corp. in several telephone calls. We are furnishing copies of this response to these three parties, as well as to the original petitioner, Truck Trailer Manufacturers Association (TTMA).

First of all, let me assure you that NHTSA had no intention of imposing any new requirements upon industry in its interpretation reflected in Figure 2, and that the reaction of industry to this interpretation came as a surprise to us. Although your letter concerns only the turn signal specifications for wide vehicles, we have reviewed this matter with respect to tail lamps and stop lamps as well, given the concern of other industry members.

Our review has led us to place added weight on the fact that the SAE visibility requirements are not consistently expressed from SAE standard to SAE standard. This difference in expression particularly calls into question our interpretation regarding turn signals. This same difference has led MVMA to apply one interpretation to turn signals, and another to stop and tail lamps. We shall discuss these two interpretations separately, and compare them with NHTSA's single, across-the-board interpretation. Under NHTSA's interpretation, the minimum specified lens area of a left stop, turn signal, or tail lamp, as seen at 45 degrees to the left of that lamp, must also be seen at 45 degrees to the right of the right lamp, and at all degrees in between (and vice versa) when viewed at a 3-meter radius from the rear.

As suggested above, MVMA does not believe that an across-the-board interpretation is appropriate, given the different expression of the turn signal specification for vehicles in J1395 and J588. SAE J1395 provides that visibility is "from 45 deg. to the left for the left lamp to 45 deg. to the right for the right lamp." (Emphasis added.) The first underlined passage suggests that the viewing angle is a left 45 deg. angle, using a line parallel to the vehicle longitudinal axis as the frame of reference

for that angle, and that this viewing angle relates to the left signal lamp only. The passage says that the angle is 45 deg. to the left "for" the left lamp, and not 45 deg. to the left of that lamp. The second underlined passage indicates a similar limitation on the applicability of the language regarding the 45 deg. angle to the right. Even more specific is the corresponding requirement in SAE J588 NOV84, Standard No. 108's specification for turn signals on vehicles less than 80 inches wide. It provides: "signals from lamps mounted on the left side of the vehicle shall be visible through a horizontal angle of 45 deg. to the left and signals from lamps mounted on the right side of the vehicle shall be visible through a horizontal angle of 45 deg. to the right."

For both wide and narrow vehicles, MVMA interprets the 45 degree left visibility requirement as applying only to the outboard side of the left turn signal lamp, and a 45 degree right visibility requirement only to the outboard side of the right turn signal lamp. NHTSA agrees that MVMA's interpretation regarding turn signal lamps is more fully consistent than NHTSA's interpretation with the language of these SAE standards. Adopting this interpretation moots the question of the particular distance at which visibility is to be determined. However, the fact that the SAE standard did not specify a measurement distance tends to strengthen the case for the MVMA interpretation since its interpretation obviates the need for a measurement distance, while the former NHTSA interpretation necessitated one.

The MVMA and TTMA interpretations of the stop and tail lamp requirements are less clearly superior to NHTSA's in their faithfulness to the language of the SAE standards. Indeed, whether any of the competing interpretations is superior in this regard is harder to assess because the language regarding these lamps is more ambiguous. The SAE specifications for stop and tail lamps, incorporated in Standard No. 108, are respectively J586 FEB84 (narrow vehicles) and J1398 MAY85 (wide vehicles), and J585e Sept. 1977. Under all three of these SAE standards, "signals from lamps on both sides of the vehicle shall be visible through a horizontal angle", which is specified as "of 45 deg. to the left and to 45 deg. to the right" (J586), "of 45 deg. to the left to 45 deg. to the right" (J1398), and "from 45 deg. to the left to 45 deg. to the right" (J585e).

TTMA and MVMA restrict the left-right 45 degree visibility requirement to the individual lamp in a horizontal plane, as shown in Figure 1 of the December 1991 notice. Under this interpretation, the minimum specified lens area that is seen at 45 degrees to the left on the left lamp must be seen at 45 degrees to the right of the left lamp, but need not be seen at 45 degrees to the right of the right lamp (and vice versa). In MVMA's view, there was never an intent by the SAE to expect that the minimum lens area of both lamps would be visible from both sides of the vehicle. MVMA also argued that there was no justification to use the photometric measuring distance of 3 meters to determine visibility.

Some aspects of the SAE standards regarding stop and tail lamps seem to favor the MVMA/TTMA interpretation, while others favor the NHTSA interpretation. For example, if these SAE standards are interpreted in light of the interpretation given above to the SAE turn signal requirements, then those stop and tail lamp standards will be interpreted as specifying

angles of visibility whose frame of reference is each individual lamp instead of the vehicle as a whole. As in the case of the turn signal requirement, the absence of a specified measurement distance for stop and tail lamp visibility tends to support an interpretation that does not depend on such a distance being specified. On the other hand, the absence of any language, like that found in J1395, relating the angle or angles of visibility to any individual lamp, suggests a single continuous horizontal angle spanning the entire rear of a vehicle.

NHTSA has decided to adopt the TTMA/MVMA interpretation of the stop and tail lamp visibility requirements. We have said that NHTSA did not intend to impose new burdens on industry by its interpretation, and there appears to be no present safety justification to do so. The existing level of rear lighting safety on the nation's roads is that which is represented by industry's interpretation of the SAE visibility requirements. Thus, there would be no derogation of the exiting level of safety by concurring with an industry interpretation. Further, given the lack of clear support for either of the competing interpretations, any attempt by NHTSA to apply its former interpretation to enforce these requirements in a court of law could be very problematic.

This letter will serve as notice to the industry that the agency will follow the interpretations stated herein in its future enforcement activities. The SAE visibility materials do not specify any measurement distance. Therefore, to carry the new interpretation to its proper conclusion, NHTSA is no longer specifying a measurement distance of 3 meters to judge compliance with the visibility requirements. Industry and NHTSA are both in agreement, however, that, wherever located, any of these lamps are required by S5.3.1.1 to continue to meet its photometric output at any applicable group of test points, unless excepted by the subsequent conditions of that paragraph.

Finally, you comment that Table II "does not require the turn signals be located on the rear except for trailers". We do not understand your remark since Table II clearly specifies that turn signal lamps be located on the rear of all vehicles to which the Table applies, and not trailers alone.

ID: aiam4693

"Dear Mr. Fairchild: This responds to your request for my opinion o whether a particular vehicle (the Pinzgauer) would be considered a 'motor vehicle' for the purposes of the National Traffic and Motor Vehicle Safety Act. When NHTSA previously considered this question, we stated in a March 25, 1982 letter to Mr. Leonard Fink that the Pinzgauer would be considered to be a motor vehicle, based on the information that was available to the agency at that time. However, that letter also stated that the agency would be willing to reconsider this conclusion if additional information were provided regarding the vehicle's marketing, advertising, and actual use. Your recent letter set forth three additional factors that you suggested might lead the agency to change its previous conclusion that the Pinzgauer was a motor vehicle. As explained in detail below, this agency reaffirms the previous conclusion that the Pinzgauer appears to be a motor vehicle. Section 102(3) of the Safety Act (15 U.S.C. 1391(3)) defines a 'motor vehicle' as any vehicle driven or drawn by mechanical power manufactured primarily for use on the public streets, roads, and highways, except any vehicle operated exclusively on a rail or rails. NHTSA has interpreted this language as follows. Vehicles that are equipped with tracks or are otherwise incapable of highway travel are plainly not motor vehicles. Further, vehicles designed and sold solely for off-road use (e.g., airport runway vehicles and underground mining devices) are not considered motor vehicles, even though they may be operationally capable of highway travel. Vehicles that have an abnormal body configuration that readily distinguishes them from other highway vehicles and a maximum speed of 20 miles per hour (mph) are not considered motor vehicles, because their use of the public roads is intermittent and incidental to their primary intended off-road use. On the other hand, vehicles that use the public highways on a necessary and recurring basis are motor vehicles. For instance, a utility vehicle like the Jeep is plainly a motor vehicle, even though it is equipped with special features to permit off-road operation. If a vehicle's greatest use will be off-road, but it will spend a substantial amount of time on-road, then NHTSA has interpreted the vehicle to be a 'motor vehicle'. Further, the agency has determined that a vehicle such as a dune buggy is a motor vehicle if it is readily usable on the public roads and is in fact used on the public roads by a substantial number of owners, regardless of the manufacturer's stated intent regarding the terrain on which the vehicle is to be operated. Vehicles such as the Pinzgauer are not easily classified under either of these groupings. On the one hand, the Pinzgauer is obviously designed to have substantial off-road capabilities, as evidenced by high ground clearance, deep water fording capabilities, and all-wheel drive. According to its manufacturer, 95 percent of the annual production of Pinzgauers is purchased by armed forces worldwide. These factors suggest that the Pinzgauer should not be classified as a motor vehicle. On the other hand, the available information shows the Pinzgauer is suitable for use on-road. The vehicle has a top speed of nearly 70 miles per hour. Page 4 of Enclosure 1 of your letter shows that the Pinzgauer is equipped with turn signals and states that the power steering minimizes steering effort 'both in difficult terrain and when parking.' Page 4 of Enclosure 3 with your letter describes the serviceability of the Pinzgauer 'with ordinary on- and off-road usage.' These factors suggest that the vehicle is designed and intended to be routinely used on the public roads, which suggests that it should be classified as a motor vehicle. In instances where the agency is asked whether something is a motor vehicle, when the vehicle has both on-road and off-road operating capabilities, and about which there is little or no evidence about the extent of the vehicle's on-road use, NHTSA has applied five factors to reach its conclusion. These factors are: 1. Whether States or foreign countries have permitted or are likely to permit the vehicle to be registered for on-road use. 2. Whether the vehicle is or will be advertised for use on-road as well as off-road, or whether it is or will be advertised exclusively for off-road use. 3. Whether the vehicle's manufacturer or dealers will assist vehicle purchasers in obtaining certificates of origin or title documents to register the vehicle for on-road use. 4. Whether the vehicle is or will be sold by dealers also selling vehicles that are classified as motor vehicles. 5. Whether the vehicle has or will have affixed to it a warning label stating that the vehicle is not intended for use on the public roads. When NHTSA previously considered whether the Pinzgauer should be considered a motor vehicle, the available information regarding these factors showed that the manufacturer had equipped the vehicle with side marker lights, the manufacturer expected the vehicle to be used on-road, and that it would be sold by dealers that also sell vehicles that are clearly motor vehicles. In your letter, you enclosed some additional information and brochures from the manufacturer that show the manufacturer continues to expect Pinzgauers to be used both on- and off-road. Since the manufacturer does not now expect to sponsor the vehicle's sale in the U.S., no information is available on the anticipated dealers. The additional information enclosed with your letter did not specifically address any factors on which no information was previously available to NHTSA. Hence, the agency has no basis for changing its previous conclusion that the Pinzgauer appears to be a motor vehicle. You suggested three reasons that might lead the agency to reverse its previous conclusion. First, you suggested that the 6-wheeled version of the Pinzgauer has a unique body configuration which distinguishes it from typical, on-road vehicles and makes it particularly well suited to off-road use. You correctly noted that the agency's 1982 letter addressed both the 4-wheeled and 6-wheeled version of the Pinzgauer. However, for the purposes of this analysis, there is no attribute of the 6-wheeled version that would lead the agency to conclude that it should be classified differently than the 4-wheeled version of the Pinzgauer. Many vehicles that are clearly motor vehicles have 6 wheels. In all other respects, the 4- and 6-wheeled Pinzgauers have similar on-road capabilities, including a top speed of more than 65 miles per hour. Second, you suggested that NHTSA concluded that the Unimog is not a 'motor vehicle' in a February 7, 1984 letter, and that the Unimog and Pinzgauer are comparable vehicles. In the February 7, 1984 letter to Mr. Karl-Heinz Faber to which you refer, NHTSA stated that it had no basis for changing its previous conclusion that the Unimog was not a 'motor vehicle.' NHTSA also noted that this conclusion was based upon the assumptions that Unimog vehicles would continue to be marketed through dealers of farm machinery and heavy equipment and that Unimog vehicles would have a label affixed stating that the Unimog is not manufactured for highway use. In other words, the information available for Unimog (especially regarding factors number 4 and 5 above) was sufficient to lead the agency to conclude that it was not a motor vehicle, even though Unimogs are operationally capable of on-road use. By way of contrast, either no information is available for Pinzgauer vehicles regarding the five factors identified above or, if information is available for a factor, it suggests that the Pinzgauer should be treated as a motor vehicle. Since the Pinzgauer is operationally capable of on-road use, and there is no indication that the manufacturer does not intend for it to spend a substantial amount of time on-road, NHTSA reaffirms its previous statement that these vehicles appear to be 'motor vehicles,' within the meaning of the Safety Act. Third, you suggested that NHTSA's 1982 conclusion did not include a consideration of the primary design intent of the Pinzgauer for military purposes and the high percentage of its total sales to the military. NHTSA's 1982 conclusion and this reconsideration both are addressed only to the non-military versions of the Pinzgauer. The military versions of the Pinzgauer would not be subject to the safety standards if their sales satisfied 49 CFR 571.7(c). In both the 1982 and this examination of whether the non-military versions of the Pinzgauer are motor vehicles, the agency fully considered the substantial off-road capabilities of these vehicles. However, absent indications that the manufacturer does not intend the Pinzgauer to spend substantial periods of time on-road, NHTSA concluded in 1982, and reaffirms at this time, that the non-military versions of the Pinzgauer appear to be 'motor vehicles' within the meaning of the Safety Act. I hope this information is useful. If you have any further questions or need some additional information on this topic, please feel free to contact Steve Kratzke of my staff at this address or by telephone at (202) 366-2992. Sincerely, Paul Jackson Rice Chief Counsel";