ID: 20180.ztv

The Honorable Orrin G. Hatch
United States Senate
Washington, DC 20510-4402

Dear Senator Hatch:

Thank you for your letter of June 4, 1999, requesting our advice on "existing law regarding motor vehicle lighting and how that law affects a recent invention," which is described as an "enhanced motor vehicle warning system" ("the System").

Our agency, the National Highway Traffic Safety Administration (NHTSA), has been authorized by Congress to issue Federal motor vehicle safety standards. One of these standards prescribes performance requirements for both original and replacement motor vehicle lighting equipment, 49 CFR 571.108, Standard No. 108, Lamps, Reflective Devices, and Associated Equipment. Standard No. 108 requires motor vehicles to be manufactured in accordance with its requirements and prohibitions.

The System works as follows. When a vehicle's horn is sounded, the System also flashes the vehicle's headlamp upper beams and its backup lamp or lamps. As you point out, paragraph S5.5.10(b) of Standard No. 108 allows the headlamps to be wired to flash for signaling purposes. However, as you also point out, S5.5.10(d) states that all other lamps shall be steady burning, and you conclude that the System would appear to violate this clause. You have asked for "an official interpretation of the rule to determine if the rear lamps, when connected to this device, would violate (d)."

Your interpretation is correct; S5.5.10(d) does not allow the backup lamp or lamps to flash when in use, and the System is not permissible because it flashes the backup lamps.

S5.5.10(a) specifies that hazard warning system lamps be wired to flash. One of your staff members discussed with us whether the System would be allowable were it modified to operate through the hazard warning system, which flashes in normal operation when activated by the driver, rather than through the backup lamps, which do not flash in use. The acceptability of such a

Standard No. 108. This paragraph prohibits the installation of additional equipment on a vehicle if it would "impair the effectiveness" of lighting equipment required by the standard. In recent years, we have come to the conclusion that use of required lighting equipment for other than its original purpose may compromise and reduce its safety effectiveness. As we said in 1996,

It is important that the integrity of the required signal lamps be maintained, and that auxiliary signal lamps not detract attention from the messages that the required signal lamps are sending. A vehicle signaling system must be as simple and as unambiguous as possible to others who share the roadway if traffic is to proceed in a safe and orderly fashion. (61 FR 65516)

We believe that a hazard warning system should not be used for the auxiliary purpose of providing an optical warning when the horn is sounded, since such a warning bears no relationship to the original purpose of a hazard warning signal and thus could create confusion about the meaning of the hazard warning signal. For this reason, we conclude that S5.1.3 would prohibit the optical warning system you describe even if it were modified to operate through the hazard warning system lamps.

In the event that the System is precluded by Standard No. 108, you have asked about our procedure for petitioning for rulemaking to amend Standard No. 108. These procedures are set forth in 49 CFR 552.4. The petition must contain the name and address of the petitioner and be addressed to the NHTSA Administrator. It must be in the English language, prefaced by the word "Petition," set forth facts in support of an amendment, and contain a brief description of the substance of the requested amendment. We are required to inform the petitioner within 120 days whether the petition is granted or denied. If the petition is granted, action on it may not be immediate as the petition must take its place among other rulemaking priorities.

Petitioners for changes in signaling lamp requirements should become familiar with the policy statement we issued in 1998 discussing how we evaluate rulemaking petitions to require or permit new or different signal lighting or signal lighting actuation (63 FR 59842). I enclose a copy for your information.

You also express your understanding that "NHTSA can issue a letter stating that Standard 108 does not preclude the use of this device in new vehicles, thereby allowing this invention to be installed on new cars." We do provide interpretive letters of this nature when a product does not conflict with the requirements and prohibitions of Standard No. 108. For the reasons indicated above, we cannot provide such a letter for this System.

Although a copy of the patent of the device and related application data did not accompany your letter, we did not need this information for purposes of this interpretation. If your staff has further questions, they may call Taylor Vinson of this Office (202-366-5263), the attorney who has previously spoken with your office on this subject.

Sincerely,
Frank Seales, Jr.
Chief Counsel
Enclosure
ref:108
d.8/5/99

ID: 20240.ztv

Mr. Peter Shaw
Job Co-Ordinator
Road Equipment Service Co., Ltd.
50 Hannant Court
Milton, Ont. L9T SC1
Canada

Dear Mr. Shaw:

This is in reply to your letter concerning the classification of certain portable asphalt storage tanks that you are manufacturing for a United States corporation. I apologize for the delay in our response.

The U.S. corporation will import these tanks and you have been advised by George Entwistle of our agency that they may be imported under Box 8 of Form HS-7 "Declaration" as off-road vehicles. You have asked that we confirm that the tanks may be so imported.

A "motor vehicle" may not be imported into the United States unless it conforms to all Federal motor vehicle safety standards that applied on the date of its manufacture and is so certified by its manufacturer (49 U.S.C. 30112(a)). A "motor vehicle" is defined, in part, as a vehicle driven or drawn by mechanical power that is "manufactured primarily for use on the public streets, roads, and highways" (49 U.S.C. 30103(a)(6)).

You have informed us that:

This tank is designed as construction equipment use only, to be transported from job site to job site with no liquid asphalt in the container. The tanks have incidental use on the road as they are transported to job sites as required. This unit stays on site for a period of time until the job site moves, and then the tank is transported to the new job site empty.

From this description, it appears that the portable asphalt tank has not been manufactured "primarily for use on the public roads," within the meaning of the definition, and that its use of the public roads is infrequent and incidental to the primary purpose for which the tanks have been built. This purpose is the storage of asphalt for use on construction sites (which may or may not be on the public roads). Accordingly, we confirm that you need not manufacture them to comply with the U.S. Federal motor vehicle safety standards, and that the U.S. corporation may import them pursuant to the declaration of Box 8 that they have not been manufactured primarily for use on the public roads.

We note that, as a matter of law, there is no such thing as "D.O.T. approved parts." We have no authority to approve or disapprove motor vehicles or equipment items. If you use this term to mean that an equipment item such as a tire or lamp bears a DOT symbol, the symbol means only that the manufacturer is thereby certifying compliance of that product with the appropriate Federal motor vehicle safety standard. In no sense can you use the term in connection with parts of an air brake system since the manufacturer of the vehicle certifies to the overall performance of the vehicle's air brake system without reference to any individual part.

If you have any questions, you may call Taylor Vinson of this Office (202-366-5263).

Sincerely,
Frank Seales, Jr.
Chief Counsel
ref:571
d.6/5/00

ID: 20264.drn

Russell Roden, P.E.
President
Atlantic Design Inc.
3740 Federal Lane
Abingdon, MD 21009-2742

Dear Mr. Roden:

This responds to your request for an interpretation whether your products are "motor vehicles" within the National Highway Traffic Safety Administration's (NHTSA's) definition. As explained below, the answer is no.

Your letter states that your company designs and manufactures "modular process systems" for the construction, industrial maintenance, and the quarry and mining industry. Your products include grit recycling and dust collection systems, and sand "dedusting units." In order to facilitate movement, your company's equipment is permanently attached to flat trailers which are manufactured by another company. You emphasize that the equipment your company designs and manufactures is a "process system where the trailer is used as a base skid with wheels for mobility and erection." As an example of your company's products, you included a photograph of an "air classification system" used in the bridge and industrial painting industry and in the quarry and mining industry.

In a telephone conversation with Dorothy Nakama of my staff, you explained that the length of time your company's equipment is at a job site depends on the task. The equipment could be at a maintenance or construction site or at a quarry for years at a time. You stated that the equipment rarely stays at a job site for less than six to eight weeks.

NHTSA's statute defines "motor vehicle" at 49 U.S.C. 30102(a)(6) as:

a vehicle driven or drawn by mechanical power and manufactured primarily for use on public streets, roads, and highways, but does not include a vehicle operated only on a rail line.

Whether the agency considers your products to be motor vehicles depends on their use. The statutory definition does not encompass mobile construction equipment, such as cranes and scrapers, which use the highway only to move between job sites and which typically spend extended periods of time at a single job site. In such cases, the on-highway use of the vehicle is merely incidental and is not the primary purpose for which the vehicle was manufactured. In contrast are instances where vehicles, such as dump trucks, frequently use the highway going to and from job sites, and stay at a job site for only a limited time. Such vehicles are considered motor vehicles for purposes of our statute, since the on-highway use is more than "incidental."

Based on your description, it appears that your company's vehicles are not motor vehicles within the meaning of our statute. This is because the vehicles stay on job sites for extended periods of time (usually for months or years) and only use the highway to move from site to site. We may reassess this interpretation if we were to receive additional information indicating that your vehicles use the roads more than on an incidental basis.

Please note that since States may require products such as those which your company manufactures to be registered, you may wish to contact State motor vehicle administrators to determine whether there are State requirements you must meet.

You also pose several questions about the application of excise taxes to your product. We are unable to answer questions relating to taxes. For further information about Federal taxes, please contact the U.S. Internal Revenue Service (IRS). The IRS's web site is at www.irs.gov. You should contact the State of Maryland for information about Maryland tax law.

I hope this information is helpful. If you have any questions, please contact Dorothy Nakama at (202) 366-2992.

Sincerely,
Frank Seales, Jr.
Chief Counsel
ref:VSA
d.10/26/99

ID: 20271.ztv

Mr. Gary Starr
Zap Bikes
117 Morris Street
Sebastopol, CA 95472

Dear Mr. Starr:

This is in reply to your email of July 7, 1999, to the National Highway Traffic Safety Administration (NHTSA) Webmaster asking two questions.

You first asked "What distinguishes electric powered toys such as ride on Perego and Power wheels from motor vehicles?"

We are not familiar with "electric powered toys such as ride on Perego and Power wheels." In brief, our principal safety statute defines a "motor vehicle" in pertinent part as a vehicle that is driven by mechanical power and manufactured primarily for use on the public streets, roads, and highways (see 49 U.S.C. 30102(a)(6)). Manufacturers of children's wheeled powered toys do not manufacture them for on-road use, nor do states license these toys for on-road use. In contrast, powered bicycles are intended by their manufacturers intend to be operated on the public roads and are licensed by states for on-road operation. These powered bicycles are "motor vehicles," as we have previously advised you. We would be pleased to advise you further if you wish to provide us with a fuller description of the vehicles about which you have asked.

Your second question is "What do electric powered mobility scooters that are used for the disabled come under? Are these toys? Or motor vehicles?"

We do not consider single-seat low-speed electric powered mobility vehicles to be manufactured primarily for use on the public roads within the meaning of the statutory definition of motor vehicle. Because they are not motor vehicles, they are not subject to our jurisdiction. This means that the Consumer Product Safety Commission has jurisdiction over mobility vehicles.

I hope that this answers your questions.

Sincerely,
Frank Seales, Jr.
Chief Counsel
ref:571
d.8/19/99

ID: 20288.ztv

Mr. Evan W. Johnson
Administrator
Division of Consumer Affairs
Department of Housing and Community Affairs
Montgomery County
100 Maryland Avenue
Rockville, MD 20850

Dear Mr. Johnson:

This is in reply to your letter of July 9, 1999, with respect to the "Safe-T-Stop" lighting device. We appreciate your enclosing some materials to help us in answering your question whether the device is permitted under Federal law and regulations.

According to a document by SafeLite of America, Inc., that you enclosed, its product Safe-T-Stop "will pulse [the center high mounted brake light] for approximately 6 seconds and reactivate if the brakes are reapplied." You read S5.5.10(d) of Federal Motor Vehicle Safety Standard No. 108 as requiring "that the third brake light must be wired to be steady-burning," and that you believe that Safe-T-Stop "contravenes this requirement of the standard by varying the brightness of the light."

We confirm your interpretation. S5.5.10(a), (b), and (c) list the motor vehicle lamps that may flash when they are operated. No stop lamp is among the lamps listed. S5.5.10(d) requires all other lamps to be wired to be steady burning, thus including all stop lamps. Standard No. 108 does not allow a stop lamp that pulses, and a vehicle with a stop lamp that pulses does not meet Federal requirements.

The installation of the circuitry that transforms a steady burning stop lamp into one that pulses may violate Federal law. You wrote that Safe-t-Stop is being marketed to consumers by new car dealers in their new car sales. For example, Federal law (49 U.S.C. 30112(a))prohibits a dealer from selling a new vehicle that does not comply with all applicable Federal motor vehicle safety standards. Thus a dealer who sells a new car with Safe-T-Stop installed has sold a vehicle that does not comply with Standard No. 108. Our statute provides for a civil penalty of up to $1,100 upon a dealer for each violation of Sec. 30112(a). A dealer who allows a test drive without sale is also in violation of Sec. 30112(a) which prohibits any person from offering for sale a nonconforming motor vehicle.

The letter of May 11, 1999, from Steven D. Kohn to Maryland's Motor Vehicle Administrator, Anne S. Ferro, which you enclosed, is incorrect in stating that Safe-T-Stop is permitted by S5.1.3 of Standard No. 108 as an "enhancement for existing vehicular brake lights." This provision of Standard No. 108 prohibits the installation of motor vehicle equipment that impairs the effectiveness of lighting equipment required by Standard No. 108. However, when installation of equipment creates a noncompliance per se, as Safe-T-Stop does with S5.5.10(d), S5.1.3 is not applicable.

You state that Mr. Kohn has clarified that, instead of S5.1.3, he is relying on our interpretation of July 24, 1989, to Robert Knauff, and that you do not view this interpretation as supporting his claim that Safe-T-Stop is consistent with Standard No. 108. The 1989 interpretation dealt with a single pulse of light approximately 40 millionths of a second in length which acted through the center high mounted stop lamp as an advance warning of braking before the brakes were applied. We read Standard No. 108's prohibition against combining the center lamp with any other lamp as applying to the collision avoidance pulse, and stated that it could not be furnished as part of a center lamp system. We did say that if the device met the test of S5.1.3, it would be an acceptable addition to any motor vehicle not originally required by Standard No. 108 to be equipped with one (i.e., in 1989, passenger cars manufactured before

September 1, 1985, and all other motor vehicles). Since our 1989 interpretation, vans and light trucks have been required as of September 1, 1993, to be manufactured with the steady burning center stop lamp. Therefore, dealer installation of Safe-T-Stop on new vehicles of these types is subject to the same prohibition as on passenger cars, and to the same civil penalties of up to $1,100 for each violation.

We note Administrator Ferro's reply of June 8, 1999, to Mr. Kohn in which she states that Safe-T-Stop can be accepted in Maryland if "the device is installed as a supplement to, not a replacement of, any center high-mounted stop lamp already installed, consistent with" Standard No. 108 and our 1989 letter.

This letter to you makes clear that Safe-T-Stop cannot be installed in an existing center lamp. To the extent that Ms. Ferro's letter can be read as an approval of a second center lamp incorporating the pulse, this is inconsistent with S5.1.3, as we believe a flashing stop lamp could create confusion and thereby impair the effectiveness of the steady burning stop lamps. Under the U.S. Constitution and 49 U.S.C. Chapter 301, Federal law would govern.

Please note that Federal law also prohibits a dealer from installation of Safe-T-Stop on a vehicle after it is sold. Under 49 U.S.C. 30122, a manufacturer, dealer, distributor, or motor vehicle repair business is forbidden from making inoperative any device or element of design installed on a vehicle pursuant to a Federal motor vehicle safety standard. Because installation of the Safe-T-Stop would create a noncompliance with S5.1.3 by creating confusion and impairing the effectiveness of the steady burning stop lamps, we regard this as a "making inoperative" within the meaning of the statute.

We are furnishing copies of this letter to Administrator Ferro, SafeLite of America (the manufacturer of Safe-T-Stop), Mr. Kohn, and Paul Jackson Rice whom Mr. Kohn represents is his counsel. If you have any questions, you may call Taylor Vinson of this Office (202-366-5263).

Sincerely,
Frank Seales, Jr.
Chief Counsel
cc: Administrator Anne S. Ferro Safelite of America, Inc.
Steven Kohn
Paul Jackson Rice, Esq. Ref:108
d.8/27/99

ID: 20294.drn

Lance Tunick, Esq.
Vehicle Services Consulting, Inc.
P.O. Box 23078
Santa Fe, NM 87502

Dear Mr. Tunick:

This responds to your request for an interpretation of Standard No. 104, Windshield wiping and washing systems. Specifically, you wish to know whether Standard No. 104 has incorporated by reference the durability requirements of SAE Recommended Practice J903a, "Passenger Car Windshield Wiper Systems," May 1966. The answer is no.

In Standard No. 104, the National Highway Traffic Safety Administration has selectively incorporated by reference the following provisions of SAE Recommended Practice J903a, May 1966: The "glazing surface reference line" shown in Figure 1; the "plan view reference line" shown in Figure 2; conditions for the test procedures of the frequency and speed of the windshield wiping system (See S4.1.1.4 of Standard No. 104); wet test procedures in determining percentages of areas of the windshield that are wiped (S4.1.2 of Standard No. 104); and establishing areas A, B, and C of the windshield (See S4.1.2.1 of Standard No. 104). None of these incorporated provisions relate to any durability requirements specified in SAE Recommended Practice J903a, May 1966.

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

Sincerely,
Frank Seales, Jr.
Chief Counsel
ref:104
d.10/26/99

ID: 20314.ztv

Ronald R. Sheldon, President
Metro Motors Corporation
2595 North Orange Blossom Trail
Kissimmee, FL 34744

Dear Mr. Sheldon:

This is in reply to your letter to Taylor Vinson of this Office, asking if there has been a change of policy regarding whether off-road vehicles are considered motor vehicles. I apologize for the delay in our response. As discussed below, there has not been any change in our policy

We informed Mr. Sanford of Metro Motors in a letter dated January 25, 1999 that it was our opinion that the small truck Metro wished to import was not a "motor vehicle" required to comply with Federal motor vehicle safety regulations. We listed several factors that we took into consideration in our decision. You claim that we stated that "these vehicles could not be sold through automotive distribution, nor could they bear the brand name of an automobile company selling licensable automobiles." You report that Kia Motors has announced that it will begin marketing this type of vehicle with the Kia brand name and through its distribution system.

In our January 1999 letter, we explained that in instances where the agency is asked whether a vehicle is a motor vehicle when it has both off-road and on-road operating capabilities, and about which there is little or no evidence about the extent of the vehicle's on-road use, we have applied five factors in offering our advice. In our letter, we listed the five factors, and discussed how they applied to your vehicle, as follows:

1. Whether the vehicle will be advertised for use on-road as well as off-road, or whether it will be advertised exclusively for off-road use.

You stated that your product literature contains an advisory that the vehicles are for off-road use only. This factor suggests that the vehicles should not be considered motor vehicles.

2. Whether the vehicle's manufacturer or dealers will assist vehicle purchasers in obtaining certificates of origin or title documents to register the vehicle for on-road use.

The sample certificate of origin you enclosed in your letter states "THIS VEHICLE DOES NOT CONFORM TO ALL SAFETY AND EMISSIONS STANDARDS APPLICABLE TO ON-ROAD VEHICLES IN THE UNITED STATES." Therefore, this factor would indicate that the vehicles should not be considered motor vehicles.

3. Whether the vehicle is or will be sold by dealers also selling vehicles that are classified as motor vehicles.

As noted previously, you have informed us that the vehicles "will be marketed to industrial equipment distributors (forklift dealers) and professional turf dealers (golf course equipment firms) and specialty houses (industrial sweeper & scrubber dealers)." The vehicles sold by these dealers are not motor vehicles. This factor suggests that the vehicles should not be considered motor vehicles.

4. Whether the vehicle has or will have affixed to it a warning label stating that the vehicle is not intended for use on the public roads.

As noted above, two warning placards will be affixed to the exterior of the vehicle body. This factor would indicate that the vehicles are not motor vehicles.

5. Whether states or foreign countries have permitted or are likely to permit the vehicle to be registered for on-road use.

Since the vehicles closely resemble small trucks and vans used on the public roads, it is possible that states would permit them to be registered for highway use. In fact, the State of Maryland has issued an emissions approval certificate for one of the vehicles. Therefore, this factor suggests that the vehicles should be considered motor vehicles.

Based on the representations in your letter and considering all of the five factors discussed above, on balance, we believe that your vehicles are not "motor vehicles." However, we will reexamine this conclusion if we learn that, for example, the vehicles are in fact used on the public roads by a substantial number of owners.

As indicated by the discussion presented in our January 1999 letter, the issue of whether the vehicle is or will be sold by dealers also selling vehicles that are classified as motor vehicles is one of several factors that we consider together in determining whether it is a motor vehicle; the factor is not determinative by itself.

Sincerely,
Frank Seales, Jr.
Chief Counsel
ref:571
d.5/4/00

ID: 20333.ztv

Samson Helfgott, Esq.
Helfgott & Karas, P.C.
60^th Floor
Empire State Building
New York, NY 10018-6098

Dear Mr. Helfgott:

This is in reply to your letter of July 16, 1999, with reference to modification of a lighting device invented by your client, Harold Caine.

The basic device is an amber lamp which would be mounted adjacent to, and in a separate housing from, the center high-mounted stop lamp. The amber lamp would be activated when the ignition is on, and deactivated when the brakes are applied. On March 30, 1989, we advised you that the lamp did not appear to impair the effectiveness of the center lamp within the meaning of S4.1.3 of Federal Motor Vehicle Safety Standard No. 108 (now S5.1.3) but that you should consider "whether your lamp, since it would be a steady burning amber lamp, might confuse following drivers unused to seeing a steady burning amber lamp on the rear of a vehicle." We further advised that, should the lamp cause confusion, it might impair the effectiveness of the other rear lamps required by Standard No. 108. We did not ourselves reach an impairment conclusion but advised that a manufacturer must take this into consideration in certifying that its vehicle complies with all applicable Federal motor vehicle safety standards including S5.1.3 of Standard No. 108, the prohibition against adding extra lighting equipment that impairs the effectiveness of lighting equipment required by the standard.

You now propose a modification of this running lamp into one that is intended to indicate when the driver "quickly takes his foot off the accelerator" by extinguishing all light sources except those that form an "X" in the lamp. When the brakes are applied, the "X", too, will be extinguished.

In our opinion, the introduction of the "X" into the light provides an additional opportunity to confuse a following driver and dilute the effectiveness of rear signals. Whereas a following driver who sees a steady-burning amber lamp succeeded by a steady burning center red lamp might not hesitate to apply the brakes, there is a greater possibility that a following driver who sees an amber lamp change into an amber "X" and then replaced by the red center lamp will have a slower reaction time to the stop signal when confronted with the unfamiliar "X." Further, the presence of an on and off "X" during operation of the rear turn signals or the back up lamps also contains the potential for confusion.

In summary, we believe that the lamp with the "X" feature would impair the effectiveness of the rear lighting equipment required by Standard No. 108, and that installation of an amber lamp with this feature is prohibited by S5.1.3. You have also asked whether it would make any difference if the "X" were red rather than amber. For the reasons given above, our answer is the same: this feature is also prohibited by S5.1.3.

In our view, traffic safety is enhanced by the familiarity of drivers with established lighting schemes, which facilitates their ability to instantly and unhesitatingly recognize the meaning a lamp conveys and to respond to it. Any modification to the required lamps or any supplemental lamp that could be perceived to have signals different from the required functions when these functions are operating, or could be perceived incorrectly as signals from required functions would be deemed by us to impair the effectiveness of the required lighting.

If you have any questions, you may call Taylor Vinson of this Office (202-366-5263).

Sincerely,
Frank Seales, Jr.
Chief Counsel
cc: Wayne Highley
ref:108
d.8/19/99

ID: 20334bottleholder

Ms. Christie Skelton
Skelton Design, Inc.
9732 Slater Avenue
Kirkland, WA 98033

Dear Ms. Skelton:

This responds to your inquiry asking about safety regulations for a device you call "the Lil Cub Bottle Holder" for infants and toddlers. I apologize for the delay in responding. Your query follows up on a conversation you had with Deirdre Fujita of my staff. You describe the product as:

a support device for bottle feeding infants and toddlers. It attaches securely onto the car seat or infant carrier with Velcro straps and holds the bottle in a position allowing an infant or toddler to drink when they desire. When properly attached, the bottle can not be dropped or pushed aside; a driver would not need to reach over the seat to rescue a lost bottle. When properly attached, the Lil Cub gently rests around the shoulder harness straps. There is a warning label sewn into the product, which cautions caregivers while attaching the product not to interfere with the child restraint system.

By way of background information, the National Highway Traffic Safety Administration (NHTSA) has the authority to issue Federal motor vehicle safety standards for new motor vehicles and new items of motor vehicle equipment. NHTSA does not, however, approve or certify any vehicles or items of equipment. Instead, each manufacturer is responsible for "self-certifying" that its products meet all applicable safety standards. The agency periodically tests vehicles and items of equipment for compliance with the standards.

There is currently no Federal motor vehicle safety standard that directly applies to the product you wish to manufacture. However, your product is considered to be an item of motor vehicle equipment. As a manufacturer of motor vehicle equipment, you are subject to the requirements of 49 U.S.C. 30118-30121 concerning the recall and remedy of products with safety related defects. I have enclosed an information sheet that briefly describes those responsibilities. In the event you or NHTSA determines that your product contains a safety-related defect, you would be responsible for notifying purchasers of the defective equipment and remedying the problem free of charge.

While it is unlikely that your product would be installed by a motor vehicle manufacturer, distributor, dealer or repair business, our statute (at 49 U.S.C. 30122) prohibits those businesses from installing the device if the installation "makes inoperative" compliance with any safety standard. Our standard for child restraint systems (Standard 213) specifies requirements that ensure that shoulder harness straps securely restrain a child in a crash. Our standard also has requirements for protection of a child's torso in a crash (S5.2.2). If your bottle holder would cause the child restraint to no longer meet Standard 213, the aforementioned parties may not install the product in new or used vehicles.

The prohibition of 30122 does not apply to individual owners who install equipment in their own vehicles. Thus, individual owners may install any item of motor vehicle equipment regardless of its effect on compliance with Federal motor vehicle safety standards. However, NHTSA encourages vehicle owners not to degrade the safety of their vehicles.

Your product is designed to position a bottle in front of the child while the child is being transported in a vehicle. We are concerned about the possibility of injury caused by a relatively hard object (a bottle) positioned where a child's head, neck or chest could impact it in a crash. In a frontal crash, a positioned bottle could break and cause injury or could otherwise be contacted by a child's head, face, neck or torso and injure the child. We ask you to consider these and any other relevant safety concerns when designing the bottle holder and when instructing consumers how to use the device.

I hope this is helpful. If you have any other questions, please contact Ms. Fujita at this address or by phone at (202) 366-2992.

Sincerely,
Frank Seales, Jr.
Chief Counsel
Enclosure
ref:213
d.10/26/99

ID: 20345.ztv

Mr. Terry W. Wagar
Vehicle Safety Technical Analyst III
Technical Services Bureau
State of New York
Department of Motor Vehicles
Division of Vehicle Safety Services
6 Empire State Plaza
Albany, NY 12228

Dear Mr. Wagar:

This is in reply to your letter of July 20, 1999, to Taylor Vinson of this Office asking two questions on motor vehicle lighting, as clarified by your conversation with him on October 13, 1999.

Comments on Draft of Regulations to Implement Bill S00577

New York has enacted Bill S00577 on July 29, 1998, effective June 1, 1999, which provides for a reduction in insurance premiums for "motor vehicles weighing in excess of ten thousand pounds" if the vehicles are "equipped with factory installed auxiliary running lamps." The purpose of the legislation is "to reduce accidents by increasing vehicle visibility during the day and night." You have submitted for our review and comment the draft by the New York State Insurance Department of an implementing regulation, and a copy of your memorandum of July 1 to Neal Schoen "of our Legal Bureau" with your own opinions and comments.

We greatly appreciate your seeking our advice before the State adopts a regulation that might conflict with preemptive Federal requirements. Under 49 U.S.C. 30103(b)(1), a state may prescribe a standard applicable to the same aspect of performance of a motor vehicle only if the standard is identical to the Federal standard. The applicable Federal requirements are those of 49 CFR 571.108, Standard No. 108, Lamps, Reflective Devices and Associated Equipment. Although the aspect of performance involved is the conspicuity of large vehicles, which the agency has addressed through its requirements for conspicuity marking, New York has not adopted a "standard" that requires the installation of additional conspicuity equipment, but has simply authorized a reduction in insurance premiums for vehicles equipped with auxiliary running lamps. Generally, we do not view this sort of program as preempted by Standard No. 108. However, we are concerned about the specifics of the New York provision.

Specifically, Standard No. 108 seeks to enhance conspicuity of heavy trucks and buses by allowing their manufacturers to equip them with daytime running lamps (DRLs) meeting the requirements of S5.5.11, and by requiring them to be equipped with side marker lamps and reflectors (Tables I and II) and with conspicuity schemes (S5.7). New York offers an incentive to reduce insurance premiums if the visibility of a large vehicle is enhanced day and night with factory installed "auxiliary running lamps." Although New York is not preempted under Federal law from encouraging the installation of such lamps by mandating reduced insurance premiums, the lamps must not be inconsistent with the Federal requirements of Standard No. 108.

The Insurance Department would allow the system to be mounted along the sides and rear of the vehicle, or trailer, at intervals of not more than ten feet. The system would be automatically activated with the ignition of the vehicle's engine and remain so while the vehicle was in operation. The system would flash automatically when the turn/hazard warning system signals are activated, and increase intensity when the brakes are applied. Red lights used as part of the system would not be visible from the front of the vehicle.

This system would not be acceptable under Standard No. 108. Paragraph S5.5.10(d), in essence, requires auxiliary lamps of this nature to be steady burning (unless they supplement lamps that S5.5.10 requires or permits to flash), thus they could not flash with the hazard warning and turn signals. Further, an auxiliary lighting device or system must not impair the effectiveness of lighting equipment required by the standard (S5.1.3).

Your memorandum would modify the Insurance Department's proposed operating scheme by specifying that the lamps be no closer than four feet apart on center, consistent with the height required for side marker lamps. The auxiliary running lamps would essentially be extra side marker lamps, and would be amber in color, and comply with side marker lamp performance. The lamps would automatically illuminate when the head lamps or required side marker lamps are illuminated and would not flash. Finally, the added lamps would not be visible from directly in front or to the rear of the vehicle.

Your suggested modifications largely address the compliance problems inherent in the Insurance Department proposal. We note, however, that S5.5.10(b) of Standard No. 108 permits side marker lamps to flash for signaling purposes. Thus, the lamps that New York is specifying as auxiliary side marker lamps may flash for signaling purposes. However, individual lamps to the rear of the trailer midpoint must be red, rather than amber, to avoid an impairing effect upon the vehicle's red rear side marker lamps. Your phrase "consistent with the height required for side marker lamps" covers a wide range of mounting heights. Standard No. 108 does not specify an upper mounting height limit for side marker devices on large trucks, though it does establish a limit of 60 inches above the road surface for the red side markers mounted at the rear of trailers. We also advise that the lamps should not be mounted directly on the conspicuity tape or reflectors with which these large vehicles are required to be equipped by S5.7 of Standard No. 108. Finally, we note that your modification would result in the auxiliary running lamps operating only when the headlamps are activated, rather than when the ignition is on. This appears contrary to the Legislature's intent to increase visibility by day, as well as by night.

Our Comments on the "Total Vehicle Safety Signalight System"

Your second question deals with the SAFE Foundation's lighting proposal, as shown on a tractor semi-trailer. Your concerns include flashing red and amber lights on the side, and additional amber lamps in a triangular formation on the rear of the vehicle.

As you know, under S5.1.3 of Standard No. 108, auxiliary lighting is prohibited if it impairs the effectiveness of lighting equipment required by Standard No. 108. With this in mind, we have reviewed SAFE Foundation's "Total Vehicle Safety Signalight System" ("the System")(an invention of Harold Caine as presented by his attorney, Samson Helfgott) as described in your letter, and our comments are given below. For purposes of this interpretation, we assume that none of the System's lamps are intended to serve as either the front or rear side marker lamp required by Standard No. 108. We also assume that the System is capable of being operated both during the day and night.

The System consists of:

1. Side mounted lamps:

Element A: at least four steady burning amber lamps on each side, facing to the side, spaced every 7 to 10 feet with three equal spaces between them: to illuminate whenever the vehicle is in operation, but extinguished when the service brakes are applied. In addition, when a turn signal is operating, the lamps on the turn-indicated side of the vehicle would flash also.

The System's amber side lamps are similar in color and function to front side marker lamps and reflectors that are required by Standard No. 108, and intermediate side marker lamps and reflectors that must be on vehicles whose overall length is 30 feet or more. Accordingly, we regard them as supplementary side marker lamps. On July 20, 1994, we advised Mr. Helfgott that supplemental lighting devices to the rear of the midpoint of a vehicle must be red. However, we understand that many supplemental marker systems that are in use and which consist of discrete lamps or reflectors are, in fact, amber. Accordingly, we do not object to the System's use of amber lamps or reflectors located to the rear of the midpoint, provided they are also located forward of the required red side marker lamps. Their steady burning use does not impair any other lamps. Standard No. 108 permits side marker lamps to flash with the turn signal lamps, and this feature would not cause an impairment of required lighting equipment, even if the required side marker lamps do not flash.

Element B: at least four steady burning red lamps on each side, facing to the side, spaced every 7 to 10 feet, located directly above the four amber lamps: to illuminate when the service brakes are applied.

The red side lamps are intended to indicate that the vehicle is braking. The lamps that Standard No. 108 requires to indicate braking are located on the rear. It is our opinion that a supplementary lighting scheme which indicates braking from three or four lamps spaced along the side of a large vehicle can detract from safety rather than add to it by confusing a driver with a novel and unfamiliar lighting scheme. This is of particular concern in situations where the lights will be visible to drivers approaching (rather than following)the vehicle on two-lane roads. When an array of lamps causes confusion, the effectiveness of all a vehicle's lighting system can be said to be impaired.

2. Rear mounted lamps:

Element A: three steady burning amber lamps in a triangular array on the rear, facing to the rear: to illuminate whenever the vehicle is in operation, but extinguished when the service brakes are applied.

Standard No. 108's lighting scheme establishes red and white as the color of steady burning lamps on a vehicle's rear, and amber and white for the front. The use of an amber array on the rear removes the certainty that red provides, and would impair the effectiveness of all red lamps on the rear.

Element B: three steady burning red lamps in a triangular array on the rear, facing to the rear: to illuminate when the service brakes are applied.

These lamps are activated simultaneously with the required stop lamps and supplement them. The triangular array will be similar to that perceived on vehicles equipped with center high mounted stop lamps. Thus, we do not believe that this will create an impairment.

We have previously provided SAFE Foundation's attorney, Samson Helfgott, with interpretations of Standard No. 108 on June 30, 1989, and September 17, 1990. To the extent that these may seem inconsistent with the interpretation we are providing you, each of the letters was based upon the facts as we understood them at the time. The interpretation we are providing you is controlling, under the facts and assumptions of this letter.

We note that 49 U.S.C. 30103(b)(1) does not prohibit New York from disallowing use on its roads, even if NHTSA concludes that it would not impair required lighting equipment. Although a State cannot disallow optional types of lighting equipment specifically covered by Standard No. 108, such as daytime running lamps and motorcycle modulating headlamps, it is not precluded from regulating non-covered and additional lighting equipment (such as fog lamps and a non-impairing version of the TVSSS), even if they would be acceptable under S5.1.3.

If you have further questions, you may call Taylor Vinson of this Office (202-366-5263).

Sincerely,
Frank Seales, Jr.
Chief Counsel
Enclosures

ref.108

d.11/16/99