ID: 2624y

Mr. Jeff Cornell
Engineering
The Bargman Company
129 Industrial Avenue
Coldwater, MI 49036

Dear Mr. Cornell:

This is in reply to your letter of July 25, l990, to Taylor Vinson of this Office, asking for clarification of the amendments to Standard No. l08 which were published on May l5 of this year.

With reference to section S5.1.1.31, requiring photometric measurement of the entire lamp (and not its individual compartments), you have asked whether this includes the maximums because the preamble to the final rule discussed the requirement only in terms of the minimums.

Section S5.1.1.31 refers unqualifiedly to "measurements" of photometrics, and thus includes maximums as well as minimums. The preamble spoke of minimums only as an example, and was not intended to exclude maximums. I am sorry if this caused some confusion.

You have also pointed out that the preamble refers to a minimum luminous lens area of 12 square inches for certain lamps, while the applicable SAE standards that Standard No. l08 incorporates by reference state the minimum as 75 square centimeters, which is only 11.625 square inches. You request a clarification of this point.

The appropriate value is 75 square centimeters (11.625 square inches). As a general rule of construction, the text of a standard constitutes the legal requirements which apply. When a value is clearly stated, as in the SAE materials, it takes precedence over an inconsistent value appearing outside the standard, such as in the preamble to the May l5 amendments. The earlier versions of the SAE standards (which the new SAE materials supersede for new motor vehicle equipment) spoke in terms of 12 square inches, and the agency retained this non-metric terminology for purposes of discussing in the preamble the difference between the old and new requirements. Although the SAE could have adopted a value of 77.42 square centimeters (12 square inches) in its new materials, it chose to round the value off to 75 square centimeters, thereby reducing its previously specified minimum luminous lens area by .375 square inch. With respect to another concern, you have presented the hypothetical of the use "in a molded bumper or fiberglass cap" of three identical single compartment stop lamps per side, none of whose individual luminous lens areas meets the 75 square centimeter requirement, but which, in combination, would exceed it. You have asked whether this would comply with the new requirements.

Our answer is no. On May l5, Standard No. l08 was also amended to add a definition for "Multiple lamp arrangement."(S3). This is "an array of two or more separate lamps on each side of the vehicle which operate together to give a signal." Paragraph 5.3.2 of the newly-incorporated SAE Standard J1398 MAY85 for stop lamps on wide vehicles states in pertinent part that "The functional lighted lens area of a single lamp . . . and each lamp of a multiple lamp arrangement shall be at least 75 square centimeters." The configuration you describe is a "multiple lamp arrangement" and each lamp in the array is subject to the minimum specified requirement.

You further ask, if "the vendor making these lights mounts the individual lights in a molded housing", whether this would create a "multiple compartment lamp", and if so, "then how is it different if it is installed into a molded bumper or fiberglass cap." The definition of "Multiple compartment lamp" adopted on May 15 states that it is "a device which gives its indication by two or more separately lighted areas which are joined by one or more common parts, such as a housing or lens."

Multiple lamps cannot be combined to create a "multiple compartment lamp". If the individual lamps are mounted in a molded housing, they remain "an array of two or more separate lamps on the same side of the vehicle which operate together to give a signal", that is to say, a "multiple lamp arrangement." The "lighted areas" of a "multiple compartment lamp" are something less than a complete lamp, but, when joined by common parts become a single lamp. The configuration you describe is not a "multiple compartment lamp."

If you have any further questions, we shall be pleased to answer them.

Sincerely,

Paul Jackson Rice Chief Counsel /ref:l08 d:8/22/90

ID: 2625y

Mr. Vaughn Crawley
Vice President
Monitor Manufacturing Co.
1820 South Cobb Industrial Blvd.
Smyrna, GA 30080

Dear Mr. Crawley:

This responds to your letter seeking an explanation of a manufacturer's responsibilities under the National Traffic and Motor Vehicle Safety Act (15 U.S.C. 1381 et seq., "the Safety Act"). I apologize for the delay in this response. You were particularly concerned with van converters' certifications of compliance with Standards No. 207, Seating Systems, and No. 210, Seat Belt Assembly Anchorages. You stated that, in a van conversion, the pedestal, the seat, and the safety belts may all be supplied by different manufacturers. You also stated that each of these components might be accompanied by test reports and engineering analyses showing that the component will, if properly installed, comply with the requirements of the safety standards. You asked whether the test reports and engineering analyses of each of the individual components could be combined to form the basis for certifying compliance with Standards No. 207 and 210, or whether the assembled seating system, as installed in the vehicle would have to be tested. I am pleased to have this opportunity to explain our laws and regulations for you.

Each of this agency's safety standards specifies the test conditions and procedures that this agency will use to evaluate the performance of the vehicle or equipment being tested for compliance with the particular safety standard. NHTSA precisely follows each of the specified test procedures and conditions when conducting its compliance testing. However, the Safety Act does not require a manufacturer to test its products only in the manner specified in the relevant safety standard, or even to test the products at all. A manufacturer may choose any means of evaluating its products to determine whether the vehicle or item of equipment complies with the requirements of the safety standards, provided, however, that the manufacturer assures that the vehicle or equipment will comply with the safety standards when tested by the agency according to the procedures specified in the standard.

If the agency testing shows an apparent noncompliance exists with a vehicle or item of equipment, the manufacturer is asked to show the basis for its certification that the vehicle or equipment complies with the relevant safety standard or standards. If in fact there is a noncompliance, the manufacturer is subject to civil penalties under the Safety Act unless it can establish that it exercised "due care" in the design and manufacture of the product and in the checks (through actual testing, computer simulation, engineering analyses, or other means) to ensure compliance, but nevertheless did not have reason to know that the vehicle or item of equipment did not in fact comply with the safety standards.

With respect to your question about whether additional testing needs to be done by your company for the vans you manufacture or if you can simply rely on the tests done by the component manufacturers, this agency has long said that it is unable to judge what efforts would constitute "due care" in advance of the actual circumstances in which a noncompliance occurs. What constitutes "due care" in a particular case depends on all relevant facts, including such things as the limitations of current technology, the availability of test equipment, the size of the manufacturer, and, above all, the diligence exercised by the manufacturer. NHTSA would look to such things as the test results for the individual components mentioned in your letter, the installation of those components by your company, the quality control procedures used by your company, and any other relevant factors to determine whether your company had exercised due care to ensure that your vans complied with all relevant safety standards.

However, it is not clear that a manufacturer could show that it exercised "due care" based solely on the test results for the individual components mentioned in your letter. As explained above, a van converter is required to assure that its vans will comply with the safety standards when tested by the agency in accordance with the procedures specified in the standards. It would be difficult to establish that a manufacturer had exercised "due care" to satisfy its responsibilities under Standards No. 207 and 210, unless the manufacturer had some evaluation of the performance of the assembled seating systems and safety belts installed in the vehicles in question. Test results for the individual components of the seating systems may not give a van converter enough information about the seating system as a whole to make such an evaluation.

You should also note that, while the exercise of "due care" may relieve a manufacturer of liability for civil penalties in connection with the manufacture and sale of noncomplying vehicles or equipment, it does not relieve a manufacturer of the responsibility to notify purchasers of the noncompliance and remedy the noncompliance without charge to the purchasers, if either the manufacturer or this agency determines that vehicles or items of equipment do not comply with all applicable safety standards.

I hope this explanation is helpful. Please contact Mr. Kenneth Weinstein, our Assistant Chief Counsel for Litigation, at (202) 366-5263 if you have any further questions or would like some additional information on this subject.

Sincerely,

Paul Jackson Rice Chief Counsel

/ref:VSA d:8/l5/90

ID: 2626y

Mr. David J. Blackwell
Operations Manager
Liquidus Limited
37A Shorncliffe Road
Toronto, Ontario
48Z 5K2, Canada

Dear Mr. Blackwell:

This is in response to your letter asking whether a certain vehicle that you plan to export to the United States would be subject to the Federal Motor Vehicle Safety Standards. You state that Liquidus has "designed a system" by customizing an existing road tanker for "overhead" loading. The vehicle you plan to export would be used for "aircraft de-icing storage" and "loading of aircraft de-icing tarmac vehicles while in a fixed location." The road tanker used in your system was originally built in Canada by a firm that has since gone out of business. I am pleased to have this opportunity to explain our statute and regulations to you.

The National Traffic and Motor Vehicle Safety Act (15 U.S.C. 1381 et seq.; the Safety Act) authorizes this agency to issue safety standards for new "motor vehicles" and new items of "motor vehicle equipment." Accordingly, your vehicle is subject to the safety standards only if it is considered within the definition of "motor vehicle" under the Safety Act. 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.

We have interpreted this language as follows. Vehicles that are equipped with tracks or are otherwise incapable of highway travel are plainly not motor vehicles. Tractors and other agricultural equipment are also not motor vehicles. Further, vehicles designed and sold solely for off-road use (e.g., certain airport runway vehicles and underground mining vehicles) are not considered motor vehicles, even though they may be operationally capable of highway travel. In addition, items of mobile construction equipment which use the highways only to move between job sites and which typically spend extended periods of time at a single job site are not considered motor vehicles.

On the other hand, vehicles that use the public roads on a necessary and recurring basis are motor vehicles. For instance, utility vehicles like the Jeep are plainly motor vehicles, even though they are 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, NHTSA has treated it as a motor vehicle. Further, if a vehicle is readily usable on the public roads and is in fact used on the public roads by a substantial number of owners, NHTSA has treated the vehicle as a motor vehicle. This finding was made with respect to dune buggies, notwithstanding the manufacturers' statements that the vehicles were not intended to be used on the public roads.

NHTSA has also stated in many prior interpretations that even vehicles that will regularly be used on the public roads will not be considered motor vehicles for the purposes of the Safety Act, if the vehicles have a maximum attainable speed of 20 miles per hour (mph) or less and have an abnormal configuration that readily distinguishes them from other vehicles on the road.

We would apply these principles to the vehicle identified in your letter as follows. Your letter stated that this vehicle will be immobilized after it reaches the airport. Assuming this immobilization occurs, this vehicle would appear to be designed and sold solely for off-road use, just like certain other airport runway vehicles. In this case, it would not be a motor vehicle, even though it is operationally capable of highway travel before the immobilization.

However, if the vehicle were not subsequently immobilized, and were moved from airport to airport with only a limited stay at any job site, this vehicle might be considered a "motor vehicle." This conclusion would be even more likely if a significant percentage of the vehicle's purchasers were to use the vehicle by moving it from airport to airport, notwithstanding your company's intent that the vehicles not be so used. This situation would be analogous to the classification of dune buggies.

I hope that this information is helpful. If you have any additional questions, please contact John Rigby of this office by mail at the above address or by telephone at 202-366-2992.

Sincerely,

Paul Jackson Rice Chief Counsel /ref:VSA d:8/20/90

ID: 2627y

Mr. Tony Llama
President
Davenport Enterprises
4705 Granada Boulevard
Coral Gables, FL 33146

Dear Mr. Llama:

This is in reply to your letter of June ll, l990, with respect to the allowability of a temporary importation of a vehicle from Panama that does not comply with Federal motor vehicle safety standards.

Specifically, the vehicle is a "van" manufactured in the Soviet Union. Its Panamanian owner has requested that your company design and install a dual air conditioning unit for the vehicle. Once you have built and installed the unit, the van will be returned to Panama for evaluation and testing. You anticipate that the van will be in the United States for at least 90 days.

After our review of this matter, we have determined that it would be appropriate for you to enter the van pursuant to the provisions of 49 CFR 591.5(j), under the declaration that the vehicle is being imported solely for the purpose of research, investigations, studies, or demonstrations. This declaration appears as Box 7 on the HS-7 importation form under which the vehicle will enter the United States.

If you have any further questions, we shall be happy to answer them.

Sincerely,

Paul Jackson Rice Chief Counsel /ref:59l d:8/2/90

ID: 2628y

Donald C. J. Gray, Commissioner
Federal Supply Service
General Services Administration
Washington, DC 20406

Dear Mr. Gray:

This responds to your letter to Mr. Barry Felrice, our Associate Administrator for Rulemaking. Your letter noted that 49 CFR 571.7(c) provides that Federal motor vehicle safety standards promulgated by the National Highway Traffic Safety Administration do not apply to vehicles that are "manufactured for, and sold directly to, the Armed Forces of the United States, in conformity with contractual specifications." You asked if this exception could be interpreted as applying to school buses purchased by the General Services Administration for the sole use of the Army. The answer to your specific question is "yes." Those buses would be regarded as having been sold directly to the Armed Forces.

The exception in 49 CFR 571.7(c) reflects a balancing of competing interests. On the one hand, Congress specified in the National Traffic and Motor Vehicle Safety Act that all new motor vehicles sold in the United States must be certified as conforming with all applicable safety standards. On the other hand, NHTSA recognizes the unique transportation needs of the Armed Forces and the specialized functions of many military vehicles. When the Armed Forces include specifications in a contract stating how the vehicles shall be produced and as a result the vehicles do not conform with some safety standards, this presumably reflects a judgment by the Armed Forces that the specialized capabilities needed in the vehicle are sufficiently compelling to outweigh the general interest in ensuring that Armed Forces' vehicles comply with the applicable safety standards.

To reflect both of these competing interests, NHTSA tailored a narrow exception to the broad requirement that all motor vehicles sold in the United States be certified as complying with the safety standards. This exception, reflected in the language of 49 CFR 571.7(c), provides that the safety standards do not apply to vehicles or items of motor vehicle equipment that are:

manufactured for, and sold directly to, the Armed Forces of the United States, in conformity with contractual specifications.

We would regard the buses as having been sold directly to the Armed Forces despite the fact that the purchasing was performed by the GSA instead of some element of the Armed Forces. The essential element of this criterion is that the Armed Forces be the principal. In this case, the Armed Forces would be the principal, and the GSA would simply be acting as its agent. We see no meaningful difference between a sale to an element of the Armed Forces and one to the GSA acting as agent for the Armed Forces, as long as the vehicles are for the sole use of the military. Our conclusions in this regard are consistent with several 1975 agency interpretations informing brake hose manufacturers that brake hoses manufactured according to military specifications and sold to military contractors for incorporation in vehicles to be sold to the military could be regarded as equipment sold directly to the Armed Forces.

Please note that to qualify for this exemption, the buses must be manufactured for the Armed Forces "in conformity with contractual specifications." In the interest of safety, we strongly recommend that the GSA or the Army, as appropriate, include the substantive provisions of the Federal motor vehicle safety standards relating to school buses in those specifications, except insofar as they are actually inconsistent with the intended usage of the buses.

I hope this response is useful. If you can provide me with further information, I would be happy to provide further guidance.

Sincerely,

Paul Jackson Rice Chief Counsel

/ref: 571 d:8/23/90

ID: 2629y

Ms. Carol Zeitlow
Manager, Engineering Services
Oshkosh Truck Corporation
P.O.Box 2566
Oshkosh, WI 54903-2566

Dear Ms. Zeitlow:

This in reply to your letter of August 1, l990, to Taylor Vinson of this Office, with respect to Motor Vehicle Safety Standard No. l08.

You ask for confirmation that "the hazard warning light should always over-ride the stop lamp" when they are "together on a vehicle." I am pleased to provide that confirmation. Under the relevant SAE materials on stop lamps that are incorporated by reference in Standard No. l08, when a stop signal is optically combined with the turn signal, the circuit shall be such that the stop signal cannot be turned on if the turn signal is flashing. Because the hazard warning system operates through the turn signal lamps, the stop signal cannot be turned on in an optically combined lamp if the hazard system is in use.

You have also noted that in your version of Standard No. l08, no reference is made to SAE Standard J1395. It was not until May l5 of this year that Standard No. l08 was amended to incorporate SAE J1395 (with an effective date of December 1, l990). I enclose a copy of that amendment for your information.

If you have any further questions, we shall be pleased to answer them.

Sincerely,

Paul Jackson Rice Chief Counsel Enclosure /ref:l08 d:8/27/90

ID: 2630y

Mr. Heracilio R. Prieto
President
Easton Inc.
Road 870, KM 2.6, Palo Seco
Levittown, Puerto Rico 00949

Dear Mr. Prieto:

This responds to your letter asking about the marking and labeling requirements in Standard No. 116, Motor Vehicle Brake Fluids (49 CFR 571.116). You asked whether you could comply with the requirement in Standard No. 116 that each brake fluid container be labeled with a "serial number identifying the packaged lot and date of packaging" by means of a "label notch coding system," which you described as a mechanical device which permanently notches a label. Standard No. 116 does not prohibit the use of a label notch coding system provided that it is not susceptible to being torn. However, any label notch coding system must be permanent and unambiguous, and satisfy all other relevant provisions of the standard.

Section S5.2 of Standard No. 116 sets forth packaging and labeling requirements for brake fluid containers. Section S5.2.2.2 requires each packager of a brake fluid to include information that is either "marked" directly on the container or marked on a label that is "permanently affixed to the container." Section S5.2.2.2(a)-(g) sets forth the specific information that must appear directly on or be labeled on every brake fluid container. Section S5.2.2.2(d) requires that the container be marked with "a serial number identifying the packaged lot and date of packaging."

Information about the label notch coding system enclosed with your letter and samples of your notched labels show that you use the system known as "code-dating," which uses uniquely spaced notches to represent a code that can be translated into a packaging date by means of a "Codedge decoder card." With this number or date represented by notches, the number could be traced by the packager to the packaging date and lot number through its production quality control records. While the "Codedge" system only identifies the year of manufacturing by means of a single digit, your recent letter indicates that an additional notch will be added to identify the decade. With respect to the label notch coding system, if the notches clearly identified the packaged lot and date of packaging, the combination would be a "serial number" and would appear to comply with the requirement of S5.2.2.2(d).

I would also like to note that section 114 of the National Traffic and Motor Vehicle Safety Act (15 U.S.C. 1407) requires every manufacturer to certify that its products comply with all applicable safety standards. For this reason, this agency has no authority to approve, endorse, or offer assurances of compliance with respect to any system of labeling brake fluid containers.

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

Sincerely,

Paul Jackson Rice Chief Counsel /ref:116 d:8/27/90

ID: 2631o

AIR MAIL

Mr. M. Arisaka Manager, Automotive Lighting Engineering Sect. Stanley Electric Co., Ltd. 2-9-13, Nakameguro, Meguro-ku Tokyo 153, Japan

Dear Mr. Arisaka:

This is in reply to your letter of October 8, 1987, with reference to a newly developed lamp bulb "for automotive light-signalling devices." You state that the lamp has a bulb defined in SAE J387 and that its specifications for bulb and base meet those of SAE J573. The candlepower of the new lamp bulb is said to be 40% higher than that of a conventional bulb. You have asked whether you can "use the device with this new lamp bulb" in the United States.

For lamps other than replaceable bulb headlamps Federal Motor Vehicle Safety Standard No. l08 establishes requirements for photometric performance, and not for bulbs. Therefore, SAE J387 and J573 are not incorporated into Standard No. l08. Any motor vehicle turn signal or hazard warning signal device using Stanley's new high-candlepower bulb would appear to be permissible as long as it meets the applicable photometric specifications of Standard No. l08, and does not exceed any maxima of these specifications.

Sincerely,

Erika Z. Jones Chief Counsel ref:l08 d:l2/3l/87

ID: 2631y

Mr. Samuel Kimmelman
Engineering Product Manager
Ideal Division
EPICOR Industries, Inc.
3200 Parker Drive
St. Augustine, FL 32084-0891

Dear Mr. Kimmelman:

This is in reply to your letter of August 2, l990, with respect to Motor Vehicle Safety Standard No. l08.

It is your understanding that, when a vehicle is delivered to its purchaser with dealer-installed trailer hitch and associated wiring, it must conform to all applicable Federal motor vehicle safety standards. You interpret the standards as requiring three specific aspects of performance, and you ask whether we agree with those interpretations. These aspects are:

"l. The turn signal flasher must be certified as meeting the FMVSS-108 requirements of a variable load turn signal flasher, over a minimum load equal to that of the vehicle turn signal load and a maximum load equal to that of the vehicle plus the trailer."

This is essentially correct. However, it is not the flasher that is certified but the vehicle in which the flasher is installed; Standard No. l08 does not require certification of original equipment lighting items, only replacement equipment items. Standard No. l08's requirements for turn signal flashers are those of SAE Standard J590b, Automotive Turn Signal Flasher, October l965, which are incorporated by reference. Under the Standard's Scope, the flashers "are intended to operate at the design load for the turn signal system as stated by the manufacturer." If a vehicle is designed for towing purposes, and its manufacturer offers an optional trailer hitch and associated wiring, then that manufacturer must equip the vehicle with a flasher capable of meeting a minimum load equal to that of the vehicle turn signal load, and a maximum load equal to that of the vehicle plus the trailer. That will be a variable load turn signal flasher. The manufacturer of the vehicle is the person responsible for ensuring that the flasher meets the vehicle's design load requirements, and that the vehicle is certified as conforming to Standard No. l08.

"2. The hazard warning signal flasher must be certified as meeting the requirements of FMVSS-l08 over a load range of 2 lamps to the combined hazard warning loads of the vehicle plus the trailer."

This is also essentially correct, and our comments are similar. Standard No. 108's requirements for hazard warning signal flashers are those of SAE Recommended Practice J945 Vehicular Hazard Warning Signal Flasher, February l966, which are incorporated by reference. The Practice's Scope specifies that the flashers "are required to operate from two signal lamps to the maximum design load . . . as stated by the manufacturer." Thus, in order for the vehicle manufacturer to certify compliance with Standard No. l08, it must equip the vehic1e with a flasher that operates over a load range of two lamps to the total hazard warning system load of the vehicle plus the trailer.

"3. The requirement to provide turn signal outage is voided due to the trailer towing capability of the vehicle."

This is correct. Under section S5.5.6 of Standard No. l08, any vehicle equipped to tow trailers and which uses a variable-load turn signal flasher is exempted from the failure indication requirements of the SAE standards on turn signals.

I hope that this answers your questions.

Sincerely,

Paul Jackson Rice Chief Counsel

ref:l08 d:8/3l/90

ID: 2632o

Ellen A. Lockwood, Esq.
Assistant U.S. Attorney
United States Attorney
District of Guam Suite 502-A PNB
238 O'Hara Street
Agana, Guam 969l0

Dear Ms. Lockwood:

This is in reply to your letter of September 24, l987, to Jim Marquez, the former General Counsel of this Department. You have asked about the applicability to the Commmonwealth of the Northern Marianas (CNMI) of l5 U.S.C. l38l, and l9 C.F.R. l2.80.

The National Traffic and Motor Vehicle Safety Act, l5 U.S.C. l38l et seq., as you have noted, applies to the CNMI through Section 502(a)(2) of the "Covenant to Establish the Commonwealth of the Northern Mariana Islands in Political Union with the United States," and is a "State" within the meaning of l5 U.S.C. l39l. This means that it is a violation of l5 U.S.C. l397(a)(1)(A) to import into the CNMI any motor vehicle that does not comply with all applicable Federal motor vehicle safety standards.

As authorized by l5 U.S.C. l397(b)(3), the Departments of Transportation and Treasury issued joint regulations to enforce the importation prohibition of l397(a)(l)(A). As the authority of the Customs Service is limited to the Customs Territory of the United States, these regulations apply only to "States" within this Territory. They do not apply to Guam, American Samoa, the Virgin Islands, and the CNMI, "States" that lie without the Customs Territory of the United States. It is our understanding that each of these "States" enforces l397(a)(1)(A) within its borders through an Executive Order issued by the Governor, designating an appropriate local agency for this task. In the Virgin Islands, for example, the Department of Public Safety will not register any vehicle that lacks the label required by 49 C.F.R. Part 567 Certification certifying compliance with all applicable Federal motor vehicle safety standards. I enclose representative copies of correspondence that the National Highway Traffic Safety Administration has had with the Virgin Islands and the CNMI on this subject.

Sincerely,

Erika Z. Jones Chief Counsel

Enclosures ref:MIS#VSA d:l2/30/87