ID: Nakachi

Matthew K. Nakachi, Esq.
Law Offices of George R. Tuttle
Three Embarcadero Center, Suite 1160
San Francisco, CA 94111





Dear Mr. Nakachi:

This responds to your letters of November 30, 2000 (as supplemented by an email of December 18, 2000, to Taylor Vinson of this Office), and January 3, 2001, concerning the applicability of certain Federal motor vehicle safety standards to sidecars.

By way of background information, the National Highway Traffic Safety Administration (NHTSA) has the statutory authority to issue Federal motor vehicle safety standards (FMVSSs) applicable to new motor vehicles and new items of motor vehicle equipment. All motor vehicles and items of motor vehicle equipment manufactured or imported for sale in the United States must comply with all applicable FMVSSs. ⁽¹⁾ The FMVSSs apply in different ways. Some apply only to new motor vehicles, others apply to new items of motor vehicle equipment ("equipment standards"), while others apply to both new vehicles and new equipment.

Your letters concern the importation of sidecars which would be sold to individuals who already own motorcycles. These sidecars would not be considered "motor vehicles" but would be considered motor vehicle equipment. ⁽²⁾ Therefore, standards that apply only to new motor vehicles would not apply to these sidecars. However, as discussed below, the sidecars would be subject to certain equipment standards.

If an aftermarket sidecar incorporates motor vehicle equipment that is regulated by an equipment standard, the equipment would have to independently comply with the applicable standard. (See NHTSA's May 4, 1982 letter, copy enclosed). Of particular relevance to sidecars are our standards for brake hoses, tires, tire rims and glazing, all of which apply to individual items of

equipment. Brake hoses, tires, tire rims and glazing, if provided on a sidecar, must meet the requirements of Standard Nos. 106, 119, 120, and 205, respectively, that apply to equipment for motorcycles.

You note, for certain of these standards, that the "scope" sections do not mention sidecars but only include such equipment that is used with "passenger cars, multipurpose passenger vehicles, trucks, buses, trailers, and motorcycles." That the standards do not list sidecars is not of significance, because the lists only include vehicle types, and a sidecar is an accessory item (not a vehicle itself). A sidecar is an accessory for a motorcycle. Therefore, equipment on a sidecar is equipment for use on a motorcycle. To determine whether a standard applies to the equipment on a sidecar, we check the application section of the standard to see whether it applies: (a) to items of motor vehicle equipment, and (b) that is for use in motorcycles. If the answer to both of these is yes, then the equipment on the sidecar would have to comply with the standard.

Standard No. 108

In the May 4, 1982, letter we also stated that lighting equipment on a sidecar would have to comply with Standard No. 108. We have reconsidered our views on this issue. Standard

No. 108 applies, in relevant part, to certain types of motor vehicles including motorcycles, and to "(l)amps, reflective devices, and associated equipment for replacement of like equipment on vehicles to which this standard applies." Since an aftermarket sidecar is sold as an accessory to a motorcycle and not to replace a part of a motorcycle, any lamps, reflective devices or associated equipment on the sidecar would not be "for replacement of like equipment" on the motorcycle. Therefore, Standard No. 108 would not apply to an aftermarket sidecar. This would be true whether the sidecars were imported as single items or with the sidecar fenders incorporating lighting equipment separated from the rest of the sidecar.

However, detached and discrete items of lighting equipment that could be installed either on motor vehicles to which Standard No. 108 applies, or on an aftermarket sidecar, could not be imported unless the items of lighting equipment comply with Standard No. 108. We do not understand that your client intends to import detached items of lighting equipment.

Standard No. 119

Our understanding is that the tires of the sidecar are not labeled in any manner. Unlabeled tires would not meet the requirements of Standard No. 119. The marking requirements for tires subject to Standard No. 119, "New pneumatic tires for vehicles other than passenger cars" (49 CFR 571.119), are set forth in paragraph S6.5 of the standard. Paragraph S6.5(b) requires that each tire be marked with "the tire identification required by part 574 of this chapter." Section 574.5, "Tire identification requirements," specifies that "[e]ach tire manufacturer shall conspicuously label on one sidewall of each tire it manufactures, except tires manufactured exclusively for mileage contract purchasers or non-pneumatic tires of non-pneumatic tire assemblies, by permanently molding into or onto the sidewall, in the manner and location specified in Figure 1, a tire identification number (TIN) containing the information set forth in paragraphs (a) through (d) of this section." According to this paragraph, the information must be molded into or onto the sidewalls of the sidecar tires. Of course, the tires would also have to comply with all performance requirements applicable to new motorcycle tires.

Standard No. 120

ID: nht87-1.76

TYPE: INTERPRETATION-NHTSA

DATE: 05/17/87

FROM: AUTHOR UNAVAILABLE; Erika Z. Jones; NHTSA

TO: Mr. John B. Krueger

TITLE: FMVSS INTERPRETATION

TEXT:

Mr. John B. Krueger Staff Engineer Society of Automotive Engineers, Inc. 3001 West Big Beaver, Suite 602 Troy, MI 48084

Dear Mr. Krueger:

This is in reply to your letter of February 10, 1987, asking the National Highway Traffic Safety Administration (NHTSA) to define the term "optically combined" as used in paragraph S4.4 of Federal Motor Vehicle Safety Standard No. 108. Presently, the SAE is circulating for comment its own proposed definition of the term, to be incorporated into SAE J387 Terminology - Motor Vehicle Lighting.

For many years paragraph S4.4 (your referenced S4.4.1 which was renumbered recently) has contained a prohibition against optically combining a clearance lamp with a taillamp or an identification lamp. NHTSA has provided written interpretations to those w ho have asked whether specific designs are "optically combined" within the meaning of paragraph S4.4, but the agency has not added a definition to paragraph S3, the definition section of the standard. If a definition is to be provided, it must be incorpo rated into the standard, and the agency is unable to do that without first formally proposing the definition and offering the public an opportunity to comment upon it. I can say, however, that the SAE's proposed definition is not inconsistent with the in terpretations of the agency.

These interpretations are available in the NHTSA docket room (Room 5109, 400 Seventh St., S.W., Washington, D.C.) for your reference should you or other SAE staff or committee members wish to examine them.

Sincerely,

Erika Z. Jones Chief Counsel

February 10, 1987

National Highway Traffic Safety Admin. Room 5219 400 Seventh Street, SW Nassif Building Washington, DC 205590

Attn: Ms . Erika Z. Jones. Chief Counsel

Dear Ms. Jones:

FMVSS 108 in paragraph 54.4. 1 includes the following statement ". . .no clearance lamp may be combined optically with any tail lamp or identification lamp". SAE standard J592, which is referenced by FMVSS 108, also contains this same prohibition against optically combining a clearance lamp with a tail lamp or an identification lamp.

There is a need to define the term "combined optically", and we respectfully request this definition from your office.

While this term has been a part of SAE documents for many years, unfortunately, there has never been a definition, and this is now needed to prevent abuses in the combining of these various lamp functions.

Canada has been concerned about the definition of this term for quite some time and has requested the assistance of the SAE Lighting Committee. Enclosed is a copy of a letter from Mr. J. G. White of Transport Canada on this subject and this includes the definition which Canada proposed in the July 12, 1986 issue of the CANADA GAZETTE on page 3244.

The SAE Lighting Committee is currently circulating the attached proposed definition for this term, and you will note that it is almost identical to the Canadian proposal.

A clear definition from the NHTSA would be appreciated by the SAE as well as the lighting industry.

Sincerely,

John B. Krueger Staff Engineer

Enclosure JBK. co

PROPOSED DEFINITION FOR ADDITION TO SAE J387 TERMINOLOGY - MOTOR VEHICLE LIGHTING

OPTICALLY COMBINED

A lamp shall be deemed to be "optically combined" if both of the following conditions exist:

A. It has two or more separate light sources, or a single light source that operates in different ways (e.g., a two filament bulb).

B. Its optically functional lens area is wholly or partially common to two or more lamp functions.

LABORATORY GUIDELINE - If two separate light sources each contribute some luminous flux to the function being tested, then both sources must be operating during a photometric test procedure.

Rationale: O In FMVSS 108, paragraph S4.4.1 , it is stated that ". .. .no clearance lamp may be combined optically with any tail lamp or identification lamp...." Similar wording occurs in subsection 14 of CMVSS 108.

For lack of this definition, lamps are being manufactured and installed on trailers that combine the tail and clearance lamp functions under one lens, with two closely-spaced bulbs. This clearly violates the spirit and intent of these safety standards.

O This definition harmonizes well with ECE Regulation 48, page 2, paragraph 2.6.5, " Reciprocally Incorporated Lamps."

O The following icons of the lighting fraternity have participated in the preparation of this definition: Paul Scully, Jim Wright, Warren Heath and Gordon Bonvallet.

SS3330-7-5 (DTSR/S)

Ottawa, Ontario, K1A ON5, October 28, 1986.

Mr. Paul Scully, Vice President, Peterson Manufacturing Company, 4200 East 135th Street, Grandview, MO 64030, U.S.A.

Dear Mr. Scully:

Thank you for sending me a copy of your letter

of August 5 to Bob Vile concerning the definition of "optically combined".

I think your proposal would do nicely. A definition much the same as the one you suggest in your letter has been included in the Canadian daytime running lights proposal, a copy of which is enclosed for your information.

I hope that "optically combined" can be included soon among the terms defined in SAE standards, and that producers of lamps with wrongly-combined functions will take note and correct their bad practices.

Yours very truly,

J.G. White, P. Eng., Head, Crash Avoidance Standards, Standards and Regulations, Road Safety and Motor Vehicle Regulation Directorate.

Encl. cc: R. Vile - N.A. Philips G. Wright - Fisher Guide A. Burgett - NHTSA

(SEE ATTACHMENT)

ID: 77-2.46

TYPE: INTERPRETATION-NHTSA

DATE: 06/03/77

FROM: AUTHOR UNAVAILABLE; Joseph J. Levin Jr.; NHTSA

TO: E.D. Etnyre & Co.

TITLE: FMVSR INTERPRETATION

TEXT: This responds to your March 30, 1977, letter asking whether the rebuilding of a motor vehicle with all new running gear and an old body constitutes the manufacture of a new motor vehicle requiring compliance with Federal regulations.

In the rebuilding operation you describe, you retain the old body tank structure while replacing the entire running gear assembly. The National Highway Traffic Safety Administration (NHTSA) has determined by regulation in 49 CFR 571.7(f) that the rebuilding of a motor vehicle using old running gear with a new body does not constitute the manufacture of a new motor vehicle. The vehicle will be considered newly manufactured unless, at a minimum, the trailer running gear assembly is not new and was taken from an existing trailer whose identity is continued with respect to the Vehicle Identification Number. In addition, the trailer must be owned or leased by the same party both before and after the remanufacture. Since the running gear with which you plan to equip your vehicle is new, your operation constitutes the new manufacture of a vehicle.

You ask secondly what portion of the running gear can be replaced as normal repairs without such replacement being considered the manufacture of a new vehicle. You may replace any part of the running gear assembly that breaks or malfunctions during operation of the motor vehicle. The NHTSA would consider this to be normal maintenance of the vehicle, not subject to the requirements applicable to vehicle manufacture.

SINCERELY,

E.D. ETNYRE & CO.

March 30, 1977

U.S. Department of Transportation National Highway Traffic Safety Administration

Attention: Legal Counsel

We are manufacturers of tank type truck bodies and trailers with running gear.

On a somewhat irregular basis, we receive requests from users of this equipment to perform certain repairs.

Our specific question at this time relates to repairs done to the running gear of trailers and whether an involvement with 49CFR 571.7(f) concerning new and used components is incurred.

1. If the present tank structure and upper fifth wheel coupler are reused in conjunction with a totally new running gear assembly, is the vehicle still a used vehicle for the purpose of the applicability ruling regarding conformance to federal regulations?

2. If the preceding answer is no, what portion of the running gear - wheels, axles, brakes and suspension - can be replaced as normal repairs without changing the status to "new"?

For the purpose of this inquiry the vehicle identification is continued and ownership is retained.

Jackson Decker Chief Product Engineer

ID: 15334.ztv

Herr Tilman Spingler
Robert Bosch GmbH
FAX 9-011-49-7121-35-1792

Dear Herr Spingler:

This is in reply to your FAX of "6/5/1997" with respect to the visual/optical headlamp aiming provisions of Federal Motor Vehicle Safety Standard No. 108. I regret that it has taken so long to get back to you with an answer.

Specifically, you "would like to know whether it is permitted to install on one side of the vehicle a headlamp with VHAD (onboard aiming) for vertical aim and on the opposite side a visually aimable headlamp in the case when a vehicle manufacturer wants to change from VHAD-headlamps to visually aimable headlamps during the production period of a certain vehicle type."

A mixed installation of this nature is not permissible. Paragraph S7.1 of Standard No. 108 requires a motor vehicle, other than a motorcycle, to "be equipped with a headlighting system designed to conform to the requirements of S7.3, S7.4, S7.5 or S7.6." (emphasis supplied). Paragraph S7.8.5 states that "When a headlamp system is installed on a motor vehicle, it shall be aimable with at least one of the following: . . ., an on-vehicle headlamp aiming device installed by the vehicle or lamp manufacturer, as specified in S7.8.5.2; or by visual/optical means, as specified in S7.8.5.3." (emphasis supplied). In these paragraphs, the standard does not refer to individual headlamps but to a "system." In our opinion, the use of the word "system" means that all headlamps within a headlighting system must comply with the same set of requirements, including its aiming features. This means that the aiming system must be identical for each headlamp in a system. For example, if one headlamp has a VHAD and is also optically/visually aimable, all headlamps in the system must have a VHAD and be optically/visually aimable.

In addition, the headlighting scheme described in your letter would not be permissible because the VHAD on the headlamp that is not visually/optically aimable appears to allow for vertical aim only and does not include a horizontal aiming feature as required by S7.8.5.2.

This interpretation requiring identical headlamps on both sides of a vehicle also ensures that all headlamps in a headlighting system on a new vehicle are designed to comply with the same photometrics.

Sincerely,
John Womack
Acting Chief Counsel
ref:108
d.3/10/98

ID: 3234yy

Sgt. Danny Wilkinson
Texas Department of Public Safety
Motor Vehicle Inspection Service
350 West IH-30
Garland, TX 75043

Dear Sgt. Wilkinson:

This responds to your letter of October 17, 1991, informing us that Texas has adopted Federal Motor Vehicle Safety Standard No. 108 for State safety inspections. You report that motorists wish to repair rear lighting devices with patch kits, rather than replacing them with new equipment, and ask whether Standard No. 108 affords a basis for making use of repair kits illegal. You mention in particular the following sections of Standard No. 108: S5.1.3 ("additional equipment," with attention to impairment of effectiveness), S5.3.1.1 ("location of required and other equipment"), and S5.7 ("replacement equipment.")

I am afraid that Standard No. l08 does not contain a completely satisfactory answer to your question, primarily because the standard deals with the performance of new vehicle equipment, and not the maintenance of that performance after the vehicle is in use, which is the thrust of the Texas requirement. Under the regulatory scheme of the National Traffic and Motor Vehicle Safety Act, a motor vehicle is not required to remain in compliance with Standard No. l08 (or any Federal safety standard) after the vehicle is sold to its first purchaser for purposes other than resale. It is possible, of course, that a vehicle could suffer damage to its rear lighting assemblies before its first sale, requiring repair by the dealer. Assuming, for the sake of argument, the not-very likely scenario that the new car dealer selling the car chose to use a patch kit rather than to replace a damaged lens or lamp, the legal question is not whether the patch is additional lighting equipment that could impair the effectiveness of the required lighting equipment (paragraph S5.1.3). The legal question is whether the repaired vehicle meets Standard No. l08: for example, would the repaired lamp meet the photometric requirements with the patch in place; would it meet the environmental tests (moisture, dust, corrosion) that the lamp and vehicle originally met in order to be certified as conforming to Standard No. l08? If the answer to these questions is affirmative, the patch would be acceptable under Federal law; if negative, then the patch would not be acceptable under Standard No. l08.

The Safety Act does not directly address repair of damage after a vehicle has been sold. Although paragraph S5.7 of Standard No. l08 requires replacement lighting equipment to meet the same standards as original equipment, neither it nor the Safety Act specify how a vehicle is to be repaired. The Safety Act does prohibit motor vehicle repair businesses (and dealers, distributors, and manufacturers) from creating a noncompliance after a vehicle has been sold, but if that noncompliance is already in existence, such as could occur with a broken lens, there is no statutory obligation to repair the vehicle so that it once again complies with Standard No. 108.

Under the Safety Act, a State is preempted from establishing or continuing in effect a motor vehicle safety standard that is not identical to a Federal motor vehicle safety standard covering the same aspect of performance. The purpose of this requirement is to remove the burden on interstate commerce that would be created if the standards to be met by a vehicle or equipment manufacturer varied from State to State. However, the preemption clause does not preclude a State from regulation of modifications to vehicles after sale. Thus, the State of Texas may prohibit the use of patch kits to repair any lighting devices without violating the Safety Act. Furthermore, if Texas laws for the operation of vehicles in use are identical to Standard No. l08, the State could prohibit any original equipment which impairs the effectiveness of the performance of any original equipment lamp or reflective device required by Standard No. l08, or replacement lighting equipment that is not certified to the same requirements as the original lighting equipment.

I hope that this information has been helpful to you.

Sincerely,

Paul Jackson Rice Chief Counsel

/ref:l08#VSA d:ll/20/9l

ID: 2396y

Robert A. Rogers, Director
Automotive Safety Engineering
Environmental Activities Staff
General Motors Corporation
General Motors Technical Center
30400 Mound Road
Warren, MI 48090-9015

Dear Mr. Rogers:

This is in reply to your letter asking for confirmation that an interpretation of a notice of proposed rulemaking remains in effect with respect to the final rule based upon that proposal. I regret the delay in responding.

Specifically, you reference an interpretation dated September 12, l988, that this Office provided Koito Corporation, informing it that each of the two Vehicle Headlamp Aiming Device (VHAD) designs depicted "complies with the intent of S7.7.5.2" of Standard No. l08. The second design consisted of a detachable spirit level that would be inserted in the bulb socket for the purpose of aiming the headlamp. We informed Koito that "under subsection (b)(7) photometric testing is provided for "the VHAD and headlamp assembly (if the headlamp is separable or intended to be used with the VHAD)", and that this meant that the VHAD may be integral with the headlamp assembly or separate from it. However, we also cautioned that our comments were based upon the proposal, and could change with the issuance of the final rule.

You have commented that the final rule was the same with respect to the pertinent VHAD wording. This is not entirely true. The final rule (paragraph S7.7.5.2(b)(vii)) omitted the parenthetical phrase "(if the headlamp is separable or intended to be used with the VHAD)". You also noted that paragraph S7.7.5.2(c)(l) of the final rule defines a headlamp assembly as "(the headlamp(s) and the integral or separate VHAD mechanism)". The intent of this language is to specify a VHAD that is a permanent part of the headlamp, and hence integral, or to have a separate VHAD that is part of the mounting mechanism. It was not meant as permitting a VHAD that could be physically separated from headlamp or the mounting mechanism. Thus, in our view and upon our further consideration of the matter, a detachable VHAD does not meet the "intent" of the final rule. This means that the spirit level design described in your letter, which is not integral to the headlamp or mounting mechanism, is not permissible. We shall provide Koito with a copy of this letter.

Sincerely,

Stephen P. Wood Acting Chief Counsel

ref:l08 d:4/9/90

ID: 9612

Mr. Eldon J. McLauchlin
President
Valley Automotive Specialties, Inc.
5805 East Sharp, Suite A-2
Spokane, Washington 99212

Dear Mr. McLauchlin:

This responds to your January 25, 1994, letter asking about how this agency's regulations might apply to your product, the Automated Fire Extinguisher System (AFES). You state that your product's purpose is to allow the operators and occupants of a vehicle to exit safely in the event of a fire. Apparently, the AFES sensors will detect smoke and heat and respond by automatically opening some sort of control valve, whereupon a manifold assembly with "strategically placed directional nozzles" will flood the passenger compartment with some sort of fire extinguisher/retardant. You do not state what kind of fire extinguisher/retardant is used. You explain that the automatic nature of this system will provide time to extract even an unconscious or incapacitated operator or occupant.

Apparently, the AFES has wide applicability. You explain that the AFES proto-type can be installed in a car, truck, boat, RV, or bus or other vehicle running on a 12 volt battery. Apparently you will modify the AFES so that it will run off the 110 volt current in homes and commercial buildings.

I am pleased to have this opportunity to explain our regulations. By way of background information, the National Highway Traffic Safety Administration (NHTSA) is authorized to issue Federal motor vehicle safety standards (FMVSS's) for new motor vehicles and new items of motor vehicle equipment. Section 102(4) of the National Traffic and Motor Vehicle Safety Act (the "Safety Act") defines, in relevant part, the term "motor vehicle equipment" as:

any system, part, or component of a motor vehicle as originally manufactured or any similar part or component manufactured or sold for replacement or improvement of such system, part, or component or as any accessory, or addition to the motor vehicle ... (emphasis added).

In determining whether an item of equipment is considered an accessory, NHTSA applies two criteria. The first criterion is whether a substantial portion of the expected use of the item is related to the operation or maintenance of motor vehicles. We determine a product's expected use by considering product advertising, product labeling, and the type of store that retails the product, as well as available information about the actual use of the product. The second criterion is whether the product is intended to be used principally by ordinary users of motor vehicles. If the product satisfies both criteria, then the product is considered to be an "accessory" and thus is subject to the provisions of the Safety Act.

Applying these criteria to the AFES, it appears that this product would be an accessory and thus an item of motor vehicle equipment under the Safety Act. Based on our understanding of the product, it appears that a substantial portion of the expected use of the AFES system relates to motor vehicle operation. The system is intended to protect anyone occupying a vehicle when a fire occurs. Also, it appears that the product would typically be used by ordinary users of motor vehicles.

While it appears that the AFES system is an item of motor vehicle equipment, NHTSA has not issued any standards for such a device. Nevertheless, there are other Federal laws that indirectly affect the manufacture and sale of your product. You as the product's manufacturer are subject to the requirements in sections 151-159 of the Safety Act concerning the recall and remedy of products with defects related to motor vehicle safety. In the event that the manufacturer or NHTSA determines that the product contains a safety related defect, the manufacturer would be responsible for notifying purchasers of the defective equipment and remedying the problem free of charge.

We have some concerns about the safety impacts if the AFES were to activate while the vehicle is moving. Is it possible, for example, that a driver smoking in the car on a hot day could accidentally set off the sensors, or that they could malfunction spontaneously? Although we do not know what will be coming through the nozzles (fluid, foam, and inert gases are common fire extinguishing agents), we are concerned that AFES activation could cause the driver to lose control in what is otherwise a controllable situation. We urge you to thoroughly consider these and other factors that could affect the safety of motor vehicle operation.

If the AFES were installed by a vehicle manufacturer as original equipment, the vehicle manufacturer would have to certify that the vehicle with the AFES installed complies with all FMVSS's. Among the FMVSS's that might be affected by certain AFES installations are Standard No. 201, "Occupant Protection in Interior Impact," and Standard No. 208, "Occupant Crash Protection."

A commercial business that installs the AFES system would also be subject to provisions of the Safety Act that affect modifications of new or used vehicles. Section 108(a)(2)(A) of the Safety Act (15 U.S.C. 1397(a)(2)(A)) provides that:

No manufacturer, distributor, dealer, or motor vehicle repair business shall knowingly render inoperative, in whole or in part, any device or element of design installed on or in a motor vehicle ... in compliance with an applicable Federal motor vehicle safety standard.

This means that a manufacturer, distributor, dealer, or motor vehicle repair business must not install your device if the system renders inoperative the vehicle's compliance with the FMVSS's. For instance, compliance with Standard No. 208 might be degraded if it were necessary to mount the AFES manifold or directional nozzles in front of the driver or passenger. Any violation of this "render inoperative" prohibition would subject the violator to a potential civil penalty of up to $1,000 for each violation.

Please note also that the render inoperative prohibition does not apply to modifications that vehicle owners make to their own vehicles. Thus, Federal law would not apply in situations where individual vehicle owners install the AFES in their own vehicles, even if the installation were to result in the vehicle no longer complying with the safety standards. However, NHTSA encourages vehicle owners not to degrade any safety device or system installed in their vehicles. In addition, individual States have the authority to regulate modifications that individual vehicle owners may make to their vehicles, so you might wish to consult State regulations to see whether your device would be permitted.

I hope this information is helpful. I am also enclosing a copy of a fact sheet titled "Information for New Manufacturers of Motor Vehicles and Motor Vehicle Equipment." If you have any further questions about NHTSA's safety standards, please feel free to contact us at this address or by telephone at (202) 366-2992.

Sincerely,

John Womack Acting Chief Counsel

Enclosure ref:VSA d:4/12/94

ID: nht94-6.35

DATE: April 12, 1994

FROM: John Womack -- Acting Chief Counsel, NHTSA

TO: Eldon J. McLauchlin -- President, Valley Automotive Specialties, Inc. (Spokane, Washington)

TITLE: None

ATTACHMT: Attached to letter dated 1/25/94 from Eldon J. McLauchlin to John Womack (OCC 9612)

TEXT:

This responds to your January 25, 1994, letter asking about how this agency's regulations might apply to your product, the Automated Fire Extinguisher System (AFES). You state that your product's purpose is to allow the operators and occupants of a vehicle to exit safely in the event of a fire. Apparently, the AFES sensors will detect smoke and heat and respond by automatically opening some sort of control valve, whereupon a manifold assembly with "strategically placed directional nozzles" will flood the passenger compartment with some sort of fire extinguisher/retardant. You do not state what kind of fire extinguisher/retardant is used. You explain that the automatic nature of this system will provide time to extract even an unconscious or incapacitated operator or occupant.

Apparently, the AFES has wide applicability. You explain that the AFES proto-type can be installed in a car, truck, boat, RV, or bus or other vehicle running on a 12 volt battery. Apparently you will modify the AFES so that it will run off the 110 volt current in homes and commercial buildings.

I am pleased to have this opportunity to explain our regulations. By way of background information, the National Highway Traffic Safety Administration (NHTSA) is authorized to issue Federal motor vehicle safety standards (FMVSS'S) for new motor vehicles and new items of motor vehicle equipment. Section 102(4) of the National Traffic and Motor Vehicle Safety Act (the "Safety Act") defines, in relevant part, the term "motor vehicle equipment" as:

any system, part, or component of a motor vehicle as originally manufactured or any similar part or component manufactured or sold for replacement or improvement of such system, part, or component OR AS ANY ACCESSORY, or addition to the motor vehicle... (emphasis added).

In determining whether an item of equipment is considered an accessory, NHTSA applies two criteria. The first criterion is whether a substantial portion of the expected use of the item is related to the operation or maintenance of motor vehicles. We determine a product's expected use by considering product advertising, product labeling, and the type of store that retails the product, as well as available information about the actual use of the product. The second criterion is whether the product is intended to be used principally by ordinary users of motor vehicles. If the product satisfies both criteria, then the product is considered to be an "accessory" and thus is subject to the provisions of the Safety Act.

Applying these criteria to the AFES, it appears that this product would be an accessory and thus an item of motor vehicle equipment under the Safety Act. Based on our understanding of the product, it appears that a substantial

portion of the expected use of the AFES system relates to motor vehicle operation. The system is intended to protect anyone occupying a vehicle when a fire occurs. Also, it appears that the product would typically be used by ordinary users of motor vehicles.

While it appears that the AFES system is an item of motor vehicle equipment, NHTSA has not issued any standards for such a device. Nevertheless, there are other Federal laws that indirectly affect the manufacture and sale of your product. You as the product's manufacturer are subject to the requirements in sections 151-159 of the Safety Act concerning the recall and remedy of products with defects related to motor vehicle safety. In the event that the manufacturer or NHTSA determines that the product contains a safety related defect, the manufacturer would be responsible for notifying purchasers of the defective equipment and remedying the problem free of charge.

We have some concerns about the safety impacts if the AFES were to activate while the vehicle is moving. Is it possible, for example, that a driver smoking in the car on a hot day could accidentally set off the sensors, or that they could malfunction spontaneously? Although we do not know what will be coming through the nozzles (fluid, foam, and inert gases are common fire extinguishing agents), we are concerned that AFES activation could cause the driver to lose control in what is otherwise a controllable situation. We urge you to thoroughly consider these and other factors that could affect the safety of motor vehicle operation.

If the AFES were installed by a vehicle manufacturer as original equipment, the vehicle manufacturer would have to certify that the vehicle with the AFES installed complies with all FMVSS's. Among the FMVSS's that might be affected by certain AFES installations are Standard No. 201, "Occupant Protection in Interior Impact," and Standard No. 208, "Occupant Crash Protection."

A commercial business that installs the AFES system would also be subject to provisions of the Safety Act that affect modifications of new or used vehicles. Section 108(a)(2)(A) of the Safety Act (15 U.S.C. 1397(a)(2)(A)) provides that:

No manufacturer, distributor, dealer, or motor vehicle repair business shall knowingly render inoperative, in whole or in part, any device or element of design installed on or in a motor vehicle ... in compliance with an applicable Federal motor vehicle safety standard.

This means that a manufacturer, distributor, dealer, or motor vehicle repair business must not install your device if the system renders inoperative the vehicle's compliance with the FMVSS's. For instance, compliance with Standard No. 208 might be degraded if it were necessary to mount the AFES manifold or directional nozzles in front of the driver or passenger. Any violation of this "render inoperative" prohibition would subject the violator to a potential civil penalty of up to $1,000 for each violation.

Please note also that the render inoperative prohibition does not apply to modifications that vehicle owners make to their own vehicles. Thus, Federal law would not apply in situations where individual vehicle owners install the AFES in their own vehicles, even if the installation were to result in the vehicle no longer complying with the safety standards. However, NHTSA

encourages vehicle owners not to degrade any safety device or system installed in their vehicles. In addition, individual States have the authority to regulate modifications that individual vehicle owners may make to their vehicles, so you might wish to consult State regulations to see whether your device would be permitted.

I hope this information is helpful. I am also enclosing a copy of a fact sheet titled "Information for New Manufacturers of Motor Vehicles and Motor Vehicle Equipment." If you have any further questions about NHTSA's safety standards, please feel free to contact us at this address or by telephone at (202) 366-2992.

ID: 07-002450as

ID: 86-6.7

TYPE: INTERPRETATION-NHTSA

DATE: 12/08/86

FROM: AUTHOR UNAVAILABLE; Erika Z. Jones; NHTSA

TO: Roger Hagie -- Government Relations Manager, Kawasacki Motors Corp. USA

TITLE: FMVSS INTERPRETATION

ATTACHMT: 10/20/83 letter from F. Berndt to BMW of North America, Inc.

TEXT:

Mr. Roger Hagie Government Relations Manager Kawasaki Motors Corp. USA P.O. Box 25252 Santa Ana, CA 92799-5252

Dear Mr. Hagie:

This is in response to your letter of April 26, 1985, asking for an interpretation of Motor Vehicle Safety Standard No. 108. I regret the delay in responding to your letter.

Specifically, you have called our attention to a proposed motorcycle accessory, consisting in part of a "nylon mesh which is stretched in front of the headlamp lens" and intended to protect the "headlamp from damage by stones or other road debris." You have asked whether this accessory would be permissible under paragraph 54.1.3 of Standard No. 108 which in effect allows optional equipment that does not impair the effectiveness of the lighting equipment that the standard does require. You have advised us that "the nylon mesh does cause some reduction in the photometric output of the lamp" but that testing of the specific headlamp that the mask is designed to fit "has determined that with the mesh in place, light output is still more than 1208 of the minimums specified by SAE J584.. . " You have quoted a 1983 letter from the former Chief Counsel giving two examples of impairment, one a plastic cover causing a dislocation of beam pattern, or a cover that is subject to accelerated hazing or cracking, but you have stated that it is unclear whether any degree of impairment is unacceptable, or only an impairment that causes light output to fall beneath the minimum photometrics prescribed by Standard No. 108.

Because Federal motor vehicle safety standards are minimum performance standards, the fact that the mesh causes some reduction in photometric output does not mean that it "impairs" the effectiveness of the headlamp unless it reduces light output below the minimum levels imposed by the standard. You have stated that with the mesh installed light output is still more than 120% of the minimum required. If Kawasaki is satisfied that this output will be met with any original equipment headlamp, then it may certify compliance with Standard No.

108 of any motorcycle on which the mesh is an original equipment accessory.

The question of the permissibility of the mesh as an after market accessory is not easily answered. Section 108(a)(2)(A) of the National Traffic and Motor Vehicle Safety Act prohibits actions by manufacturers, distributors, dealers, and motor vehicle repair businesses that "render operative in whole or in part" equipment which has been installed to comply with a Federal vehicle safety requirement. We would view dealer-installation of the mesh as rendering a headlamp partially inoperative if it resulted in a diminution of headlamp light output below the standard's minimum level. The prohibition does not apply to owner modifications. Whether an owner modification is legal is answerable under the laws of the States where a vehicle is registered and operated.

A further observation is that although an original equipment headlamp-mesh combination may meet or exceed the minimum photometrics, it is possible that a replacement headlamp would fall beneath the threshold of photometric compliance with the mesh in place. We suggest that you consider these safety issues before proceeding to offer the accessory.

Sincerely,

Erika Z. Jones Chief Counsel

April 26, 1985

Office of Chief Counsel National Highway Traffic Safety Administration 400 Seventh Street, S.W. Washington, D.C. 20590

RE: Request for Interpretation, FMVSS 108

Dear Sir:

Kawasaki Motors Corp., U.S.A. requests an interpretation of the acceptability of a proposed motorcycle accessory, a device to cover and protect the leading surface of a motorcycle fairing and headlamp from damage by stones or other road debris.

More specifically, the product consists of a vinyl or leather "mask" which fits snugly to the front of the fairing and incorporates a nylon mesh which is stretched in front of the headlamp lens.

Our question relates to the issue of whether this mesh covering over the headlamp lens is permissible according to FMVSS 108. Your attention is directed to the letter of October 20, 1983 from then Chief Counsel Frank Berndt to Karl-Heinz Ziwica of BMW North America (file ref. NOA-30), copy attached.

In this letter, Mr. Berndt indicates that NHTSA has "concluded that headlamp covers for motorcycles are not per se prohibited by Standard 108." Mr. Berndt continues to indicate " if they impair the effectiveness of the headlamp." He goes on to describe two examples of impaired effectiveness that the agency would presumably consider contrary to the intent of FMVSS 108: an extreme installation angle of the cover or deterioration of the cover itself.

What remains unclear from Mr. Berndt's letter is whether any degree of impairment of the light output is to be considered unacceptable, or whether the unacceptable level might be reached if the impairment caused light output to drop below the photometric standards applicable to the lamp.

In the case of the mask under consideration by Kawasaki, the nylon mesh does cause some reduction in the photometric output of the lamp. However, testing of the specific headlamp that this mask is designed to fit has determined that with the mesh in place, light output is still more than 120% of the minimums specified by SAEJ584, the applicable standard. Thus, while some "impairment" is acknowledged, performance with the mask in place still exceeds the requirements of FMVSS 108.

In conclusion, Kawasaki seeks NHTSA's opinion whether a mesh headlamp cover which is not subject to hazing, cracking or discoloration, and which does not cause light output to drop below the minimum levels specified by FMVSS 108 would be considered in Compliance with FMVSS 108 if offered for sale on a specific Kawasaki motorcycle.

Thank you for your attention to this matter.

Sincerely,

KAWASAKI MOTORS CORP., U.S.A.

Roger Hagie Government Relations Manager

See 10/20/83 letter from F. Berndt to BMW of North America, Inc.