ID: nht87-2.18

TYPE: INTERPRETATION-NHTSA

DATE: 06/19/87

FROM: AUTHOR UNAVAILABLE; Erika Z. Jones; NHTSA

TO: Mr. Jim Ross

TITLE: FMVSS INTERPRETATION

TEXT: Mr. Jim Moss President, Auto Mark Corp. 3901 Atkinson Drive Suite 220 Louisville, Kentucky 40218

Dear Mr. Moss:

This responds to your letter to Ms. Barbara Kurtz of our Office of Market Incentives. In your letter, you posed several questions about a stencil your company would like to offer to direct importers for marking their vehicle parts in compliance with 49 C FR Part 541, Federal Motor Vehicle Theft Prevention Standard. Before responding to your specific questions, I would like to briefly explain the parts marking requirements of Pact 541 as they apply to direct importers.

Direct importers are required to inscribe an identifying number on the specified parts for each passenger car subject to Part 541 that they import: @541.5(a). The identifying number inscribed on the parts must be the original vehicle identification numbe r assigned to the car by its original manufacturer in the country where the car was assembled or produced: @54l.5(b) (3). The identifying number inscribed on the parts must satisfy the size and style requirements specified for vehicle certification label s: @54l.5(c). Finally, the identifying number inscribed on the parts must comply with the three requirements of @54l.5(d) (2). These requirements are:

1. Removal or alteration of any portion of the number must visibly alter the appearance of the section of the vehicle part on which the identification is marked:

2. The number must be placed on each part in a location that is visible without further disassembly once the part has been removed from the vehicle: and

3. The number must be placed entirely within the target area specified by the original manufacturer for that part.

There are no other requirements for marking direct importers' vehicles. Once the direct importer determines that its vehicle complies with these requirements, it certifies that compliance by affixing a label to the vehicle, as specified in 49 CFR S567.4( k). This certification label must be affixed to the vehicle before it is imported into the United States.

To respond to your specific questions, you stated that you advise direct importers to leave your stencil on each part after etching it. You then posed three questions:

1. Must the initials DOT appear on the stencil?

ANSWER: No. Part 541 does not require that the DOT symbol appear as a part of or in conjunction with inscribed markings on parts.

2. May we leave our name (logo) printed on the stencil? ANSWER: Yes. Using the same principles we have applied in the case of labeling requirements in our safety standards, manufacturers may label information in addition to that which is required by the theft prevention standard, provided that the additional information does not obscure or confuse the meaning of the required information or otherwise defeat its purpose. The purpose of requiring the vehicle identification number to be inscribed on specifi ed parts is to allow law enforcement officials to quickly and conclusively establish whether a vehicle or major part is stolen. We do not believe it is possible that law enforcement officials will be distracted from examining the markings inscribed on th e parts by the presence of a stencil with your company name on it. Therefore, you are free to leave your company name on the stencil.

3. Do you have any suggestions or objections to offer?

ANSWER: Our only concern is that direct imports comply with the requirements of Part 541. Assuming that your stencil is a means for direct importers to comply with those requirements, we have no additional advice to offer.

If you have any further questions or need more information on this subject, please feel free to contact Steve Kratzke of my staff at this address or by telephone at (202) 366-2992.

Sincerely,

Erika Z. Jones Chief Counsel

ID: 002101GF

Mr. Charles W. Lawhon
C & S Trailer World
4111 E. Loop 820 S.
Fort Worth, TX 76119

Dear Mr. Lawhon:

This letter is in response to your phone call and a subsequent letter asking about the Federal motor vehicle safety standards that apply to a trailer with a gross vehicle weight rating (GVWR) at or above 10,000 pounds that was manufactured in 1987. Specifically, you asked about any regulations applicable to such a trailer equipped with an "electrical braking system." It is our understanding that this electrical system actuates brakes via an electro magnet and does not utilize air or hydraulics. You also asked us to elaborate on any other safety requirements for "manufactured utility or gooseneck trailers."

I am pleased to have this opportunity to explain our regulations to you. As a preliminary matter, we note that the National Highway Traffic Safety Administration (NHTSA) does not provide approvals of motor vehicles or motor vehicle equipment. Under the National Traffic and Motor Vehicle Safety Act ("Safety Act"), it is the responsibility of the manufacturer to ensure that its vehicles or equipment comply with all applicable Federal motor vehicle safety standards (FMVSS) issued by this agency. A manufacturer then certifies that its vehicles or equipment comply with those standards.

There is only one Federal motor vehicle safety standard that regulates the braking performance of trailers.[1] That standard, FMVSS No. 121 (49 CFR 571.121) establishes performance requirements for braking systems on vehicles equipped with air brakes. The standard applies to new trucks, buses, and trailers. A trailer manufactured in 1987 would have been subject to the standard as it existed at that time. An air brake system is defined in paragraph S4 of the Standard as follows:

Air brake system means a system that uses air as a medium for transmitting pressure or force from the driver control to the service brake, but does not include a system that uses compressed air or vacuum only to assist the driver in applying muscular force to hydraulic or mechanical components.

Based on your correspondence, it is our understanding that the trailer in question uses electricity to actuate or control its brakes. Accordingly, the trailer you described is not subject to the requirements of Standard No. 121.

In addition to Standard No. 121, Standard Nos. 106 and 116 are also applicable to trailers manufactured in 1987 and today. Standard No. 106 regulates brake hoses and Standard No. 116 regulates brake fluids. Again, it is our understanding that the trailer in question was equipped with an electrical braking system. Therefore, Standard No. 106 and Standard No. 116 do not apply to that vehicle, because the system does not contain brake fluid or brake hoses.

In you letter you state: "there were no safety regulations in regards to trailers with straight electrical brakes or any other safety devices in 1987." This statement is not correct. There are several safety standards that applied to all trailers manufactured in 1987. Specifically, Standard No. 108 regulates certain lamps, reflective devices and associated equipment installed on trailers. The specific requirements under this standard depend on the size of the trailer, which you have not provided. Standard No. 119 applies to new pneumatic tires installed on trailers manufactured after 1948. Standard No. 120 applies to tire selection and rims for motor vehicles other than passenger cars, including trailers.

In sum, there was no Federal motor vehicle safety standard applicable to electrical braking systems installed on trailers manufactured in 1987. However, several other safety standards were applicable to trailers manufactured in 1987. For your convenience, I have enclosed a package of information for trailer manufacturers, published by our Office of Vehicle Safety Compliance. This information is also available on the web at: http://www.nhtsa.dot.gov/cars/rules/maninfo/.

I hope this information is helpful. If you have any further questions about NHTSA's safety standards, please feel free to contact George Feygin of my staff at this address or by telephone at (202) 366-2992.

Sincerely,

Jacqueline Glassman
Chief Counsel

ref:121
d.2/28/03





---




[1] In 1987, FMVSS Standard No. 105 Hydraulic brake systems, applied only to passenger cars, MPVs, trucks, and buses. We note that the application section of the current version of Standard No. 105 states that it applies to "hydraulically-braked vehicles with a GVWR greater then 3,500 kilograms." The application section does not exclude trailers. However, this is an error, and we intend to issue a correcting amendment to exclude trailers, as was the case in 1987.

ID: 07-005006--13 May 08--rls

ID: 86-4.19

TYPE: INTERPRETATION-NHTSA

DATE: 07/23/86 EST

FROM: ERIKA Z. JONES -- CHIEF COUNSEL, NHTSA

TO: BENJAMIN R. JACKSON -- EXECUTIVE DIRECTOR AUTOMOBILE IMPORTERS COMPLIANCE ASSOCIATION

TITLE: NONE

ATTACHMT: LETTER DATED 05/07/86 TO BRIAN MCLAUGHLIN, FROM BENJAMIN R JACKSON

TEXT: Dear Mr. Jackson:

This responds to your letter to Mr. Brian McLaughlin of our Rulemaking division, in which you requested an interpretation of 49 CFR Part 541, Federal Motor Vehicle Theft Prevention Standard. Specifically, you asked for a written confirmation of Mr. McLaughlin's statement that only lines listed in Appendix A of Part 541 must be marked in compliance with Part 541. Mr. McLaughlin's statement was correct.

Your concern appears to arise from the fact that direct importers sometimes import car lines not offered for sale in the United States by the original manufacturer. Such lines may have a majority of major parts interchangeable with the major parts of a car line offered for sale in the United States and listed in Appendix A of Part 541 as a high theft line subject to the theft prevention standard. Section 603(a)(1)(C) of the Motor Vehicle Information and Cost Savings Act (the Cost Savings Act; 15 U.S.C. 2023(a)(1)(C) specifies that lines that have a majority of major parts interchangeable with the major parts of a high theft line are themselves high theft lines for the purposes of the theft prevention standard. Accordingly, you were concerned that the direct importers might be statutorily required to make determinations of interchangeability with the listed in Appendix A, and mark those lines that had a majority of major parts interchangeable with those of a listed high theft line. This is not the case.

Section 603(a)(2) of the Cost Savings Act specifies: "The specific lines ... which are to be subject to the standard may be selected by agreement between that manufacturer and [NHTSA]. If the manufacturer and [NHTSA] disagree as to such selection, [NHTSA] shall select such lines ..." The agency followed these procedures and arrived at the selections of high

theft lines listed in Appendix A. All lines not listed in Appendix A are not required to be marked in accordance with Part 541, because they have not been selected as high theft lines in accordance with section 603(a)(2) of the Cost Savings Act.

Sincerely,

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: 86-5.33

TYPE: INTERPRETATION-NHTSA

DATE: 10/21/86

FROM: AUTHOR UNAVAILABLE; Erika Z. Jones; NHTSA

TO: Herbert Epstein -- Senior Attorney, Office of the General Counsel, Fort Motor Company

TITLE: FMVSS INTERPRETATION

TEXT: This responds to your request for an interpretation of a portion of the National Highway Traffic Safety Administration's (NHTSA) response to the petitions for reconsideration of the final rule establishing the Federal motor vehicle theft prevention standard (51 FR 8831, at 8835, March 14, 1986).

Specifically, you were concerned about the following language:

A manufacturer is free under this standard and the Theft Act to use a transparent paint mask and to specify in its contracts with its dealers that the dealer must remove the mask before selling vehicles or parts. However, if the dealer does not remove the mask, both the manufacturer and the dealer could be liable for violating section 607(a) of the Cost Saving Act. The manufacturer and dealer might both be liable for selling a vehicle not in compliance with the theft prevention standard (prohibited by section 607(a)(1)) and the manufacturer might be liable for falsely certifying that the vehicle complies with the theft prevention standard (prohibited by section 607(a)(4)(B)). The manufacturer must assume its portion of this risk if it wishes to use a transparent integral paint mask that must be removed by its dealers.

You stated in your letter that this discussion could be read as imposing vicarious liability on the manufacturers for a dealer's failure to remove a paint mask after the dealer had painted over the mask. You then asked whether NHTSA's opinion would be affected if the manufacturer provided the dealer in writing, either by letter or service bulletin, instructions on how to protect the labels during dealer preparation and advice that Federal law required dealers to remove the paint mask after performing the dealer preparation operations. Such a step would affect the agency's opinion as to the manufacturer's liability for the non-removal of a paint mask, as explained below.

The language you quoted from the preamble was intended to alert vehicle and parts manufacturers to their statutory obligations under section 607(a) of the Motor Vehicle Information and Cost Savings Act (15 U.S.C. 2027(a)). When dealers must take further actions to bring a vehicle into compliance with the theft prevention standard, section 607 of the Cost Savings Act requires the vehicle manufacturer to exercise due care to ensure that the dealers will, in fact, perform such further actions. See sections 607(a)(4)(B) and 607(b) of the Cost Savings Act (15 U.S.C. 2027(a) (4)(B) and 2027(b)). The language quoted above from the agency response to the petitions for reconsideration implicitly acknowledged this due care defense by stating that manufacturers "could" and "might" be liable for violations of section 607(a) if paint masks were not removed by dealers.

It is not possible for us to give a hard and fast rule of what constitutes due care in all circumstances. For example, a manufacturer that learns that its dealers generally are not removing the paint masks must do more to establish that it exercised due care than it did before it learned of such failures by its dealers. As a general proposition, however, NHTSA believes that a manufacturer using transparent paint masks to protect its labels has exercised due care, and therefore is not liable for violations of section 607(a), when it takes the following steps:

1. The manufacturer includes a provision in its contracts with each of its dealers obligating the dealer to remove the transparent paint masks;

2. The manufacturer issues a service bulletin to all of its dealers providing instructions on how to protect the label during painting, rustproofing, etc., and on how and when to remove the transparent paint masks; and

3. The manufacturer reminds the dealers, either in the service bulletin or in a separate letter, of their contractual and statutory obligations to remove transparent paint masks after performing dealer preparation operations, if the label is then obscured by the paint mask.

Absent unusual circumstances, NHTSA would conclude that a manufacturer has exercised due care for the purposes of section 607 of the Cost Savings Act if the manufacturer has taken these three steps.

Sincerely,

ATTACH.

June 16, 1986

Erika Z. Jones, Esquire -- Chief Counsel National Highway Traffic Safety Administration

Dear Ms. Jones:

Request for Interpretation

The agency stated, * in commenting on 49 CFR @ 541.5(d)(1)(ii)(C), that a manufacturer of a vehicle or replacement part covered by the Vehicle Theft Prevention Standard ("Standard") might be vicariously liable for a dealer's failure to remove a transparent paint mask from an identification label after the dealer painted over the mask even though the manufacturer's contract with the dealer required such removal. The comment did not, however, discuss the situation in which the manufacturer, in addition to entering into such a contract, also provided to the dealer a writing (for example, by a letter or a service bulletin) which

(1) provided instructions on how to protect the label during painting, rustproofing, undercoating or like operation;

(2) stated that, in NHTSA's opinion, federal law required the removal of the protective mask after such operation, if the mask then obscured the label; and (3) stated that violators might be subject to a civil penalty of up to $ 1,000 per violation.

* Docket No. T84-01; Notice 9, "Vehicle Theft Prevention Standard and Selection of Covered Major Parts; Response to Petitions for Reconsideration", 51 Fed. Reg. 8831, 8835 (1986).

In our view, any dealer who breached his contract in the face of such a writing would not be engaged in "normal" dealer preparation operations within the meaning of @ 541.5(d)(1)(ii)(C); to the contrary, the dealer's actions would be in derogation of his contractual obligations. Moreover, by contracting with the dealer and instructing him in the foregoing manner, the manufacturer would have exercised as high a degree of care to prevent the dealer's non-compliance as is reasonable to expect of it. Therefore, we assume you would agree that if a dealer failed in such circumstances to remove the mask he obscured, the manufacturer would have no reason to know in the exercise of due care that the dealer had put the regulated vehicle or replacement part out of compliance with the Standard (15 U.S.C. @ 2027(b)), and would not be liable for the dealer's failure.

We respectfully request your confirmation of our interpretation. Should you have any questions, please contact me. My telephone number is (313) 322-4397.

Respectfully yours,

Herbert Epstein -- Senior Attorney

cc: Stephen R. Kratzke, Esquire

ID: 2670y

Mr. and Mrs. Albert J. Fasel
97 W. Silver Lake Road N.
Traverse City, MI 49684

Dear Mr. and Mrs. Fasel:

This is in reply to your letter of August 24, 1990, to Arthur H. Neill of this agency. You have asked for an interpretation that Federal law or regulations do not prohibit "turn signals being amber and is no way an impairment to the function of the center high mounted red stop lamp."

Federal Motor Vehicle Safety Standard No. l08, Lamps, Reflective Devices, and Associated Equipment, allows the use of amber turn signals. However, since you have enclosed a drawing of a device consisting of a center highmounted stop flanked by right and left amber turn signals, your actual question appears to be whether this device is legally acceptable under Federal law.

The "Abstract" you enclosed states that the stop function "is used in conjunction with the rear bumper signal lights", indicating that the intent of the device is to provide a supplementary turn signal to a vehicle's original turn signal system. Two different models are proposed: "One model for use with an already existing rear window light or without one." The device would be available through parts stores and mail order catalogues.

With respect to aftermarket sales of motor vehicle equipment such as yours, there is only one Federal restriction: if the equipment is installed on a vehicle by a manufacturer, distributor, dealer, or motor vehicle repair business, it must not "render inoperative, in whole or in part", any element of design, or device, installed by the vehicle's manufacturer in accordance with a Federal motor vehicle safety standard.

If a passenger car already has a center highmounted stop lamp, the model of your device that does not incorporate a center lamp (i.e., consisting only of the turn signal portion) will "straddle" it. As long as the installation of your device does not affect the performance of the existing center highmounted lamp that has been installed in accordance with Standard No. l08 (for example, such as being wired in a way that reduces the light output of the center lamp) it appears permissible.

If a vehicle was manufactured before Standard No. l08 required it to have a center lamp, it does not appear that installation of the model of your device that incorporates a center highmounted stop lamp could in any way "render inoperative" any of the other rear lighting devices required by Standard No. l08.

However, in either event, you should ensure that the size of the device is such that it does not interfere with the field of view requirements of Federal Motor Vehicle Safety Standard No. lll, Rearview Mirrors, in order that compliance with this standard may be maintained after installation of your device. I include a copy of Standard No. lll for your information.

Finally, even if your device is acceptable under the conditions I have discussed above, it must not violate the laws of any State where it is used. We are unable to advise you on State laws, but suggest that you contact the American Association of Motor Vehicle Administrators, 4600 Wilson Boulevard, Arlington, Va. 22203.

Sincerely,

Paul Jackson Rice Chief Counsel

Enclosure ref:l08 d:9/25/90

ID: nht95-3.3

TYPE: INTERPRETATION-NHTSA

DATE: June 7, 1995

FROM: John Womack -- Acting Chief Counsel, NHTSA

TO: K. Howard Sharp, Esq. -- Arnason Law Office

TITLE: NONE

ATTACHMT: ATTACHED TO 5/12/95 LETTER FROM K. HOWARD SHARP TO JOHN WOMACK

TEXT: Dear Mr. Sharp:

We have received your letter of May 12, 1995, requesting an interpretation of Motor Vehicle Safety Standard No. 108 on behalf of your client, NYTAF Industries. You are concerned that installation of a NYTAF lighting system on the rear of trailers might be considered to impair the effectiveness of the required rear lighting equipment within the meaning of paragraph S5.1.3.

The NYTAF Auxiliary Rear Lighting System

NYTAF has developed "an auxiliary signaling system for heavy duty vehicles" which "displays a verbal message appropriate to the particular potential hazard." According to Exhibit A of your letter, a draft information brochure, the specific words displaye d are: "Wide Turn", "Braking", "Wide Load", "Caution", "Help", "Backing", and "Long Load". In addition, right and left facing arrowheads indicate the direction of turning. Drivers cannot alter these messages or program the system to accept personal mes sages. The brochure depicts the message unit "on the rear of the trailer frame directly below the trailer body in the center putting the display panel on approximately the same horizontal plane as the tail lights and brake lights." Words are provided by light-emitting diodes (L.E.D.). According to your letter, the L.E.D. display "is somewhat more intense than existing brake lights, turn and tail lamps."

Exhibit B "Operation Summary" explains how the system operates with respect to each message, e.g., "Braking" is "activated and illuminated in conjunction with brake lights."

Applicable Requirement of Standard No. 108

Paragraph S5.1.3 of Standard No. 108 states that "No additional lamp, reflective device or other motor vehicle equipment shall be installed [before first purchase of a vehicle in good faith for other than resale] that impairs the effectiveness of lightin g equipment required by [Standard No. 108]."

Prior Interpretations of S5.1.3 Relating to Message Boards

In the past, the agency has advised that the determination of impairment is initially made by the manufacturer of the motor vehicle on which the supplementary equipment is installed, when it certifies that the vehicle complies with all applicable Federal motor vehicle safety standards. Unless that determination is clearly erroneous, NHTSA will not question it. Thus, NHTSA's interpretations are generally cautionary in tone rather than prohibitive.

I enclose copies of two interpretations relating to message boards intended for the rear parcel shelves of passenger cars. The first is a letter of August 17, 1989, to Alan S. Eldahr ("Eldahr"). The relevant language of Eldahr is that a rear window mes sage board "sending messages unrelated to vehicle stops, could confuse and distract a driver following, and in that sense impair the effectiveness of the center lamp." The second is a letter dated August 13, 1993, to Kenneth E. Ross ("Ross"). The Ross l etter discusses the relation of message boards to the aftermarket, as well as the notification and remedy obligations which would fall upon NYTAF as a manufacturer of automotive accessory equipment.

Relationship of Eldahr to NYTAF

Eldahr indicates that there is less possibility of impairment existing if the message visible to a following driver is related to the lamp function that occurs simultaneously, as happens, for example in the NYTAF system, when stop lamp activation is acco mpanied by the word "Braking." We suggest that vehicle manufacturers installing the NYTAF system follow this guideline in their determinations of whether impairment exists.

NYTAF might also wish to reconsider the intensity of the L.E.D. display which you say is "more" than that of the existing rear lighting equipment, especially as it may affect reaction to the stop signal. The intensity should not be so great as to divert driver attention to the message rather than to the stop signal.

There are several areas of Exhibit B "Operation Summary" which require more specific comment. "Caution" is activated in conjunction with the hazard warning system. Standard No. 108 requires these systems to simultaneously flash all turn signal lamps, a nd not sequentially as Exhibit B states. Exhibit B should be corrected to reflect this if it is to be distributed publicly, as we do not understand that the NYTAF system is intended to create sequential flashing of turn signals when operated in the haza rd signal mode. The sole explanation of "Help" is that it is to be activated manually. In our view, a flashing "Help" while the trailer is in motion would be more likely to impair rear lighting equipment than if it is operable only when the trailer is at rest. In addition, Exhibit B does not indicate whether the "Help" message is overridden by other messages when related lighting systems are activated.

We are unsure of the purpose of "Clearance Marker" which is operated "in conjunction with parking lights." Standard No. 108 does not require truck tractors to be equipped with parking lamps. We believe that you meant taillamps. We do not view this lamp as having an impairing effect upon the taillamps. The name of the lamp is somewhat misleading, as it would be mounted at the center of a vehicle whereas a "clearance lamp" is intended to indicate a vehicle's overall width.

Additionally, on certain trailer designs the three identification lamps are mounted around the vertical centerline in the same location in which you have stated the NYTAF system will be mounted. With respect to the close proximity of the two lighting sy stems, we believe that the brightness of the NYTAF device compared with that of the identification lamps could impair their ability to signal the presence of a large vehicle in the roadway ahead, the intended function of these lamps.

Finally, we note that the color red would indicate a backing function. Although trailers are not required to have backup lamps, Standard No. 108 specifies that the color white shall be used for backup lamps, and we believe that the public has come to as sociate an activated white lamp on the rear of a vehicle as indicating that the vehicle is in reverse gear. Your client may wish to reevaluate this function in light of possible liability concerns.

We hope that these guidelines will be helpful to NYTAF. If you have any further questions, Taylor Vinson will again be happy to answer them (202-366-5263).

ID: 0911

K. Howard Sharp, Esq.
Arnason Law Office
P.O. Box 5296
Grand Forks, ND 58206-5296

Dear Mr. Sharp:

We have received your letter of May 12, 1995, requesting an interpretation of Motor Vehicle Safety Standard No. 108 on behalf of your client, NYTAF Industries. You are concerned that installation of a NYTAF lighting system on the rear of trailers might be considered to impair the effectiveness of the required rear lighting equipment within the meaning of paragraph S5.1.3.

The NYTAF Auxiliary Rear Lighting System

NYTAF has developed "an auxiliary signaling system for heavy duty vehicles" which "displays a verbal message appropriate to the particular potential hazard." According to Exhibit A of your letter, a draft information brochure, the specific words displayed are: "Wide Turn", "Braking", "Wide Load", "Caution", "Help", "Backing", and "Long Load". In addition, right and left facing arrowheads indicate the direction of turning. Drivers cannot alter these messages or program the system to accept personal messages. The brochure depicts the message unit "on the rear of the trailer frame directly below the trailer body in the center putting the display panel on approximately the same horizontal plane as the tail lights and brake lights." Words are provided by light-emitting diodes (L.E.D.). According to your letter, the L.E.D. display "is somewhat more intense than existing brake lights, turn and tail lamps."

Exhibit B "Operation Summary" explains how the system operates with respect to each message, e.g., "Braking" is "activated and illuminated in conjunction with brake lights."

Applicable Requirement of Standard No. 108

Paragraph S5.1.3 of Standard No. 108 states that "No additional lamp, reflective device or other motor vehicle

equipment shall be installed [before first purchase of a vehicle in good faith for other than resale] that impairs the effectiveness of lighting equipment required by [Standard No. 108]."

Prior Interpretations of S5.1.3 Relating to Message Boards

In the past, the agency has advised that the determination of impairment is initially made by the manufacturer of the motor vehicle on which the supplementary equipment is installed, when it certifies that the vehicle complies with all applicable Federal motor vehicle safety standards. Unless that determination is clearly erroneous, NHTSA will not question it. Thus, NHTSA's interpretations are generally cautionary in tone rather than prohibitive.

I enclose copies of two interpretations relating to message boards intended for the rear parcel shelves of passenger cars. The first is a letter of August 17, 1989, to Alan S. Eldahr ("Eldahr"). The relevant language of Eldahr is that a rear window message board "sending messages unrelated to vehicle stops, could confuse and distract a driver following, and in that sense impair the effectiveness of the center lamp." The second is a letter dated August 13, 1993, to Kenneth E. Ross ("Ross"). The Ross letter discusses the relation of message boards to the aftermarket, as well as the notification and remedy obligations which would fall upon NYTAF as a manufacturer of automotive accessory equipment.

Relationship of Eldahr to NYTAF

Eldahr indicates that there is less possibility of impairment existing if the message visible to a following driver is related to the lamp function that occurs simultaneously, as happens, for example in the NYTAF system, when stop lamp activation is accompanied by the word "Braking." We suggest that vehicle manufacturers installing the NYTAF system follow this guideline in their determinations of whether impairment exists.

NYTAF might also wish to reconsider the intensity of the L.E.D. display which you say is "more" than that of the existing rear lighting equipment, especially as it may affect reaction to the stop signal. The intensity should not be so great as to divert driver attention to the message rather than to the stop signal.

There are several areas of Exhibit B "Operation Summary" which require more specific comment. "Caution" is activated in conjunction with the hazard warning system. Standard No. 108 requires these systems to simultaneously flash all turn signal lamps, and not sequentially as Exhibit B states. Exhibit B should be corrected to reflect this if it is to be distributed publicly, as we do not understand that the NYTAF system is intended to create sequential flashing of turn signals when operated in the hazard signal mode. The sole explanation of "Help" is that it is to be activated manually. In our view, a flashing "Help" while the trailer is in motion would be more likely to impair rear lighting equipment than if it is operable only when the trailer is at rest. In addition, Exhibit B does not indicate whether the "Help" message is overridden by other messages when related lighting systems are activated.

We are unsure of the purpose of "Clearance Marker" which is operated "in conjunction with parking lights." Standard No. 108 does not require truck tractors to be equipped with parking lamps. We believe that you meant taillamps. We do not view this lamp as having an impairing effect upon the taillamps. The name of the lamp is somewhat misleading, as it would be mounted at the center of a vehicle whereas a "clearance lamp" is intended to indicate a vehicle's overall width.

Additionally, on certain trailer designs the three identification lamps are mounted around the vertical centerline in the same location in which you have stated the NYTAF system will be mounted. With respect to the close proximity of the two lighting systems, we believe that the brightness of the NYTAF device compared with that of the identification lamps could impair their ability to signal the presence of a large vehicle in the roadway ahead, the intended function of these lamps.

Finally, we note that the color red would indicate a backing function. Although trailers are not required to have backup lamps, Standard No. 108 specifies that the color white shall be used for backup lamps, and we believe that the public has come to associate an activated white lamp on the rear of a vehicle as indicating that the vehicle is in reverse gear. Your client may wish to reevaluate this function in light of possible liability concerns.

We hope that these guidelines will be helpful to NYTAF. If you have any further questions, Taylor Vinson will again be happy to answer them (202-366-5263).

Sincerely,

John Womack Acting Chief Counsel

2 Enclosures

ref:108 d:6/7/95

ID: nht93-5.50

TYPE: Interpretation-NHTSA

DATE: August 5, 1993

FROM: John Womack -- Acting Chief Counsel, NHTSA; Signature by Kenneth N. Weinstein

TO: Richard Muraski -- President/CEO, Equa-Brake, Inc.

TITLE: None

ATTACHMT: Attached to letter dated 5/18/93 from Richard Muraski to John Womack (OCC 8668)

TEXT:

This responds to your letter requesting an interpretation about the use of your product, the Equa-Brake mechanical auxiliary air brake system. You stated that this product "increases brake force and improves brake performance on all vehicles that are equipped with air brakes." You were concerned about whether the use of your product would be affected by an agency decision to deny a petition for rulemaking submitted by the Washington Company. That petition had requested the agency to require a device that regulates air pressure differential between the two wheels on each axle (57 FR 29459, July 2, 1992).

As explained below, neither the requirements of Standard No. 121, nor those of the National Traffic and Motor Vehicle Safety Act (Safety Act), under which the standard was issued, prohibit the installation of your product in most situations. The one exception is that if your product is installed on a vehicle by a vehicle manufacturer, dealer, or repair business, neither the act of installation nor the operation of the device may render inoperative any device or element of design installed on that vehicle.

By way of background information, the National Highway Traffic Administration (NHTSA) does not provide approvals of motor vehicles or motor vehicle equipment. Under the Safety Act, it is the responsibility of the manufacturer to ensure that its vehicles or equipment comply with all applicable standards. The following represents our opinion based on the facts provided in your letter.

NHTSA does not have any specific regulations about auxiliary brake systems. However, since this device is tied to a vehicle's air brake system, it could affect a vehicle's compliance with standard No. 121. That standard applies to almost all new trucks, buses, and trailers equipped with air brake systems.

If the Equa-Brake is installed as original equipment on a new vehicle, the vehicle manufacturer is required to certify that, with the device installed, the vehicle satisfies the requirements of all applicable safety standards, including Standard No. 121. (See 15 U.S.C. S1397(a)(1) and 49 CFR Part 567. If the device is added to a previously certified new motor vehicle prior to its first consumer purchase, then the person who modifies the vehicle would be an alterer of a previously certified motor vehicle and would be required to certify that, as altered, the vehicle continues to comply with all of the safety standards affected by the alteration. 49 CFR S567.7.

If the device is installed on a used vehicle by a manufacturer, distributor, dealer, or motor vehicle repair business, then the installer would not be required to attach a certification label. However, it would have to make sure that it did not knowingly render inoperative, in whole or in part, any device

or element of design installed on or in a motor vehicle or item of motor vehicle equipment in compliance with an applicable Federal motor vehicle safety standard. 15 U.S.C. S1397(a)(2)(A).

Your letter expressed concern about the effect of the agency's decision to deny the rulemaking petition submitted by the Washington Corporation. Please note that the Washington petition requested that the agency amend Standard No. 121 to REQUIRE a device that regulates a brake system's air pressure differential between two wheels on each axle. In denying the petitioner's request to require such a device, the agency emphasized that its decision not to require a product in no way prohibited the optional installation of the device provided the vehicle continued to comply with the applicable standards.

I hope this information is helpful. If you have any questions about NHTSA's safety standards, please feel free to contact Marvin Shaw at this address or by telephone at (202) 366-2992.