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: NYDOTBILL

Mr. Tom Perreaut
New York State Department of Transportation
Office of Legal Affairs
Building 5, New York State Campus
Albany, NY 12232





Dear Mr. Perreaut:





This responds to your letter and telephone calls asking whether a New York state bill (S.1731-B, January 27,1999,) would be preempted by Federal law, in light of a possible inconsistency with Federal Motor Vehicle Safety Standard No. 111, "Rearview Mirrors." Your correspondence attaches a revised version of the bill and a letter dated April 16, 1999, from the Federal Highway Administration (FHWA) to your office regarding a previous version of the bill. Further, you attach a copy of a request for comments, dated June 12, 1996, based upon a granted petition for rulemaking to the National Highway Traffic Safety Administration (NHTSA) to require convex cross view mirrors on certain trucks (61 FR 30586). Based on our understanding of your correspondence and telephone calls, we believe that the answer to your question is a qualified no.

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

Every motor vehicle when driven or operated upon a public highway in the delivery of goods or services to residential or business locations shall be equipped with one or more cross-view back-up mirrors designed to allow the driver of such motor vehicle a view of the area behind the back of the motor vehicle.

For the purposes of the bill, a "motor vehicle" is defined as:

a vehicle that is registered or based in the state of New York, and that is equipped with a cube-style or enclosed delivery bay with a minimum eight feet six inches and a maximum of eighteen feet, provided that any such vehicle be a single unit vehicle which is operated for commercial purposes except for motor vehicles in interstate commerce and rental vehicles....

A "cross-view back-up mirror" is defined as "a mirror mounted on a motor vehicle and so located to enable the driver to view directly behind such vehicle."

Section 30103(b) of our statute, 49 U.S.C. 30103(b) (formerly 103(d) of the National Traffic and Motor Vehicle Safety Act), 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.

Federal Motor Vehicle Safety Standard No. 111, Rearview Mirrors (49 CFR 571.111), requires side rear view mirrors on trucks with a gross vehicle weight rating (GVWR) of 4,536 kilograms (kg) or more. The standard at S7.1 (for trucks with GVWRs of between 4,536 kg and 11,340 kg) and at S8.1 (for trucks with GVWRs of 11,340 kg or more) requires mirrors on both sides of the vehicle. The mirrors must be "located so as to provide the driver a view to the rear along both sides of the vehicle and shall be adjustable both in the horizontal and vertical directions to view the rearward scene." The use of the words "a view to the rear" and "rearward scene" does not indicate that the specified field of view extends directly behind the truck. Our review of the rulemaking history of the standard, including the notice we published at 61 FR 30856 (June 12, 1996), indicates that there is no Federal intent to regulate the area directly and immediately behind the type of vehicle in question. New York would thus be regulating a different aspect of performance (i.e., a different field of view) than that regulated by Standard No. 111.

If the State regulation addresses only the area directly behind the motor vehicle and therefore not the area addressed by Standard No. 111, it would not be preempted by 30103(b). However, it is difficult to respond categorically that the State regulation would not be preempted because you have provided little information on what the State would require. The State regulation would be preempted if it conflicts with Federal law, either by creating a situation in which manufacturers cannot comply with both the State and Federal laws, or by interfering in some way with another Federal motor vehicle safety standard (such as the field-of-view requirements for the lighting standard, 49 CFR 571.108).

If NHTSA were to issue a standard regulating the field of view of this area, inconsistent State laws would be preempted to the extent that they are not identical with the Federal standard. Of course, we would consider any relevant State laws when adopting a Federal standard. Currently, we have ongoing rulemaking considering establishing performance for rear cross view mirrors. We expect to publish an Advanced Notice of Proposed Rulemaking (ANPRM), following upon 61 FR 30586, on this in the future.

In addition, there may be preemption issues concerning Federal law administered by the Department's Federal Motor Carrier Safety Administration (FMCSA), which has jurisdiction over interstate motor carriers operating in the United States. FMCSA was established on

January 1, 2000, and was formerly a part of the Federal Highway Administration (FHWA). We note that Mr. Brian Temperine of the FHWA wrote your department on April 16, 1999, concerning preemption issues arising from a previous version of the bill in question. We suggest that you contact the FMCSA at (202) 366-4012 for information concerning preemption, FHWA's April 16, 1999, letter, and FMCSA's views of the current version of the bill.

In closing, we want to make clear that we are not providing any views with respect to the merits of the State mirror requirement to be enacted in New York. This letter only addresses the preemption issue you raised.

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,





Frank Seales, Jr.
Chief Counsel





ref:111
d.8/3/00

ID: NYS_preemption-8263

Ms. Ida L. Traschen, Esq.
Department of Motor Vehicles
6 Empire State Plaza
Albany, NY 12228




Dear Ms. Traschen:

This responds to your letter in which you asked whether New York State "must" amend its definition of low speed vehicle (LSV) to conform to the recent amendment to the Federal definition of LSV. Your question is addressed below.

The National Highway Traffic Safety Administration established Federal Motor Vehicle Safety Standard (FMVSS) No. 500, Low Speed Vehicles, to ensure that LSVs are equipped with an appropriate level of motor vehicle equipment for the purposes of safety. As established in an August 17, 2005 final rule, LSV is defined as a 4-wheeled motor vehicle with a maximum gross vehicle weight rating less than 1,134 kilograms (2,500 pounds), whose attainable speed in one mile is more than 32 kilometers per hour (km/h) (20 miles per hour (mph)) but less than 40 km/h (25 mph) (70 FR 48313).

In your letter, you stated that the definition of LSV under New York State Vehicle Traffic and Safety Law 121-f does not include a gross vehicle weight rating limit. You then asked if New York State must amend its definition of LSV to conform to the recently amended Federal definition of LSV.

While a State is not required to amend its definition of LSV, maintaining a different definition than the Federal definition could have implications with respect to preemption of State laws.

Under Federal law, a vehicle that meets the Federal definition of "low-speed vehicle" must be manufactured to conform to FMVSS No. 500. Similarly, a vehicle that meets the Federal definition of "passenger car," "multipurpose passenger vehicle," or "truck," must be manufactured to meet the FMVSSs applicable to that vehicle type, regardless of how the vehicle may be classified under State law.

Under 49 U.S.C. 30103(b), when a Federal motor vehicle safety standard is in effect, a State or a political subdivision of 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.

Different motor vehicle safety standards apply depending on how a vehicle is classified, i.e. , its vehicle type. If a State law classifies a vehicle differently than Federal law, preemption is an issue under 49 U.S.C. 30103(b) if: (1) the State classification results in the vehicle being subject to a State standard applicable to the same aspect of performance regulated by a FMVSS, and (2) the State standard is not identical to the FMVSS. In such an instance, the State safety standard would be preempted.

If you have any further questions, please contact Mr. Calamita at (202) 366-2992.

Sincerely,

Stephen P. Wood
Acting Chief Counsel

ref:500
d.1/4/06

ID: Ocean_imports_scooter_03-9045.2version2

Mr. Brian Lambert
Panalpina Inc. / Ocean Imports
18600 Lee Rd.
Humble, TX 77338

Dear Mr. Lambert:

This responds to your letter asking whether several models of scooters you are considering importing into the United States are "motor vehicles" for the purpose of the regulations administered by the National Highway Traffic Safety Administration (NHTSA). As explained below, it is our opinion that the two models with a maximum speed greater than 20 mph are motor vehicles.

The legislation establishing NHTSAs vehicle safety authority is set out at 49 U.S.C. Chapter 301. Under 49 U.S.C. 30112, a person may not import into the United States, "any motor vehicle or motor vehicle equipment manufactured on or after the date an applicable motor vehicle safety standard prescribed under this chapter takes effect unless the vehicle or equipment complies with the standard[.]" (Emphasis added.) "Motor vehicle" is defined at 49 U.S.C. 30102(a) as:

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

In a November 26, 2003, letter addressed to Mr. Amir Ambar, we addressed the issue of whether a scooter that he wished to import into the United States was considered a motor vehicle under this definition. We will consider the points we made in that letter in responding to your request.

In responding to Mr. Ambar, we noted that when determining if a vehicle is manufactured primarily for use on the public streets, roads and highways, the agency first looks to see if the vehicle has on-road capabilities.

We also noted that in an October 3, 1969, notice, the agency determined that while "mini-bikes" have on-road operating capabilities, they are not motor vehicles for

the purpose of our standards (34 Federal Register 15416; enclosed). At that time the agency found that "mini-bikes" were precluded from operation on public roads by a vast majority of States. The agency has determined this to still hold true. Further, "mini-bikes" were at that time promoted and advertised solely for off-road use.

The scooter at issue in our November 2003 letter was described as a "toy" intended for off-road use only. The literature submitted stated that the maximum speed of the scooter ranged between 12.5 and 16 miles per hour (mph). The scooter was shown to have an engine displacement of 36 cc, a height of 33 inches, and wheel diameters of ten and nine inches (front and rear, respectively). The owners manual and a label on the scooter warned against operating the scooter on public roads.

Based on the description provided, including its speed capabilities and small size, we concluded that the "scooter" at issue was properly characterized as a "mini-bike," and therefore was not a "motor vehicle" within the meaning of Chapter 301. We explained that the scooters low speed capability would prohibit it from being operated in normal moving traffic. This was reflected in the warning label. Further, the low sitting height and small wheel diameters were comparable if not smaller than those of the mini-bikes considered under the 1969 notice.

We also stated that while the scooter at issue in that letter could theoretically be operated on public roads, we anticipated that because of its small size and absence of a Vehicle Identification Number (VIN), which is generally required by States for vehicles authorized to operate on public roads, incidents of its actual operation on public streets, roads, and highways would be comparatively rare. We recognized that the scooter was equipped with a headlight, horn, turn signals, and a mirror. We noted that while this equipment may be seen as equipping the scooter for road use, such equipment is also sometimes present on bicycles and other non-motor vehicles as well.

Finally, we stated that while we had concluded at that time that the scooter was not a motor vehicle, we might re-evaluate our determination if we were to receive additional information indicating that the scooter (or similar ones) were being used on public roads on more than an incidental basis, the scooter were to be advertised for use on public roads, or the characteristics of the imported scooters were not consistent with the descriptions provided.

We will now turn to the scooters you asked about. In your e-mail, you stated that the three scooter models you are considering importing are intended for off-road-use only. The JC 50 model is advertised as having an engine displacement of 49 cc, a maximum speed of 15 mph, and a height of 32.6 inches. The JC 70 model is advertised as having an engine displacement of 72 cc, a maximum speed of 37 mph, and a height of 37.4 inches. The JC 90 model is advertised as having an engine displacement of 85.7 cc, a maximum speed of 50 mph, and a height of 37.4 inches. Your e-mail stated that all three models are marked for off-road use and all three models have VINs. You further stated that sales of these scooters would be primarily through the internet. As advertised on the internet, the scooters are shown with headlights and mirrors.

ID: ODI.approximationofproduction

Memorandum Regarding Estimates Of Production
Under The Early Warning Reporting Rules

NHTSA has received inquiries whether under the early warning reporting (EWR) rule, a manufacturer must estimate annual production of its vehicles to determine whether it likely will be above the production threshold for full reporting, and if so, whether it must then submit quarterly reports before its actual production-to-date reaches the threshold. We have also received inquiries on how to report production where the manufacturer does not know, and cannot determine with reasonable effort, the number of reportable items it manufactured.

The early warning reporting rule divides manufacturers of motor vehicles into two groups with different responsibilities for reporting. The first group, which includes larger manufacturers of motor vehicles that produce, import, offer for sale or sell 500 or more vehicles per year of one or more of four defined categories of vehicles, is subject to comprehensive reporting. See 49 CFR 579.21-24. The second group, which includes relatively small manufacturers of less than 500 vehicles per year in those defined categories, is subject to limited reporting. See 49 CFR 579.27. (Manufacturers of tires and child restraint systems are also required to make comprehensive reports.) As we explained in an interpretation, manufacturers are required to make good faith estimates of their expected annual production for purposes of determining whether to report under 49 CFR 579.21-24 or 579.27. See Letter of July 24, 2003, to Mr. Lance Tunick.

While we require estimation of future production for purposes of determining whether the manufacturer is likely to be at or above the 500 vehicle threshold, ordinarily reports of production-to-date will be actual numbers. However, manufacturers will be permitted to approximate production information in those situations where it is not possible for a manufacturer to quantify the number of vehicles, tires, or child restraint systems it manufactured. We anticipate and expect that such approximations of past production will be few and far between, given that manufacturers would usually keep production records in the ordinary course of their business.

Additional questions concerning EWR should be directed to Andrew DiMarsico of this office at 202-366-5263.

Jacqueline Glassman
Chief Counsel

ref:579
d.12/3/03

ID: onlinetireregistration

Ms. Ann Wilson
Sr. Vice President, Government Affairs
Rubber Manufacturers Association
1400 K Street, NW
Washington, DC 20005

Dear Ms. Wilson:

This responds to your request for an interpretation of the National Highway Traffic Safety Administrations (NHTSA) tire information regulation, 49 CFR 574.7. You asked whether the regulation permits tire manufacturers to offer electronic registration in addition to the required mail-in form. You state that no more than 10% of tire registration cards are currently returned to manufacturers and that the information provided on these cards is often inaccurate, incomplete, or illegible. RMA believes that offering registration via the Internet, by telephone, or by other electronic means would improve the registration return rate and aid manufacturers in fulfilling notification requirements.

As explained below, we interpret the regulation to permit electronic registration as a supplement to the required mail-in form for independent distributors and dealers.

By way of background, Part 574 establishes a registration program for new tires. NHTSA implemented this program to improve the effectiveness of manufacturer campaigns to recall tires that contain a safety-related defect or fail to conform with applicable safety standards. By identifying new tire purchasers, the program increases the manufacturers ability to inform owners of tires about defects or noncompliances in those tires.

Part 574 establishes the following requirements:

New Tire manufacturers, new tire brand name owners. Except as noted, new registration forms are to be provided for independent dealers. All of those forms are required to be identical in format and content and within the size range specified in the interim final rule. Alternatively, the manufacturer can provide independent dealers with pre-addressed envelopes in which tire purchasers could mail the mandatory registration forms.

Independent distributors and dealers. These dealers are required to record the tire identification number(s) of the tire(s) sold along with their name and address on a registration form and give the form to the tire purchaser.

Other distributors and dealers. They must record the purchaser's name and address, the tire identification number(s) of the tire(s) sold, and a suitable identification of themselves as the selling dealer on a tire registration form and return the completed forms to the tire manufacturers or their designees.

Section 574.7 prescribes the content and format of the registration forms provided by tire manufacturers to all distributors and dealers. Paragraph (a)(2) of this section states that the registration form provided to independent distributors and dealers must conform to the examples provided in that section. Paragraph (a)(4) of this section provides that the registration form must contain space for recording the following information: 1) name and address of the tire purchaser, 2) tire identification number, and 3) name and address of the tire seller or other means by which the tire manufacturer can identify the tire seller. Under section 574.7, no other information than that prescribed in the section is permitted to appear on the form.

RMA asks that we interpret the regulation to permit manufacturers to provide independent dealers and distributors with a supplemental form, in addition to the form required under section 574.7(a)(2), that notifies consumers that they may also register their tires by electronic means; e.g., by directing the consumer to a website or a toll-free telephone registration line. RMA cites to two recent interpretation letters issued by our office with respect to the electronic registration of child restraint systems under FMVSS No. 213, Child Restraint Systems (letter to John K. Stipancich, January 3, 2003; letter to Mark A. Rosenbaum, Esq., April 12, 2001). These letters conclude that child restraint manufacturers "may include a supplemental form that encourages electronic registration" if the following two conditions are met:

1. The registration card required by FMVSS No. 213 does not bear any information or writing beyond that required to be on the form, and
2. The additional information is presented in a manner not likely to confuse consumers about the purpose of the required form or to obscure the importance of owner registration.

Subsequent to RMAs interpretation request, Computerized Information Management Services, Inc. ("CIMS"), a tire registration agent for tire manufacturers and/or brand name owners, submitted a letter dated April 23, 2003, urging that "web-based tire registration is a bad idea" and that the interpretation that RMA is requesting should be denied. More specifically, CIMS argues that a web-based system would create significant confusion for the tire dealer and the consumer, would place an additional paperwork burden on the tire dealer, and would place an additional burden on the consumer to correctly enter all of the required tire registration information.

After considering the issues raised by your letter and also by CIMS, we agree that the rationales of the aforementioned FMVSS No. 213 interpretation letters are also applicable to interpreting Part 574. We therefore interpret Part 574 to permit electronic registration as a supplement to the required mail-in form, subject to the two considerations noted above for FMVSS No. 213. We do not agree with CIMS that supplemental electronic registration would create confusion, given these considerations. Moreover, since electronic registration would be supplemental and voluntary, it would not result in additional burdens.

This interpretation does not relieve non-independent distributors and dealers from the requirements of section 574.8(b) that they themselves record the purchaser's name and address, the tire identification number(s) of the tire(s) sold, and a suitable identification of themselves as the selling dealer on a tire registration form and return the completed forms to the tire manufacturers or their designees. While we would interpret Part 574 to permit non-independent distributors and dealers to accomplish these tasks by electronic means, they may not transfer this responsibility to consumers.

If you have any questions or need additional information, feel free to contact Nancy Bell of my staff at (202) 366-2992.

Sincerely,

Jacqueline Glassman
Chief Counsel

cc: CIMS
ref:109
d.7/18/03

ID: Oshkosh

W. Thatcher Peterson
Product Safety Manager
Oshkosh Truck Corporation
2307 Oregon Street
P.O. Box 2566
Oshkosh, Washington 54903-2566

Dear Mr. Peterson:

This responds to your letter of September 22, 2003, requesting confirmation of Oshkosh Truck Corporations (Oshkosh) understanding of its early warning reporting (EWR) responsibilities under the TREAD Act and 49 CFR Part 579 with regard to the military and civilian heavy trucks it manufactures. Your letter provided information concerning three categories of heavy vehicles, one of which was divided into two subcategories: one subcategory for vehicles restricted to off-road use, and one subcategory for vehicles used on public streets and highways. My responses are organized according to the categories you identified.

The first category you referenced concerned trucks built exclusively for military use with no civilian counterparts. As to this category, I confirm that your understanding is correct that such trucks, designed and manufactured exclusively for military use, and with no civilian counterparts, are not subject to the EWR requirements.See letter of May 21, 2003, to Stewart & Stevenson.

The second category you referenced concerned Airport Rescue and Firefighting (ARFF) trucks and snow removal trucks. These trucks were, in turn, broken into two subcategories. The first, you explained, includes ARFF and snow removal equipment used exclusively for off-road service and almost exclusively at airports to perform such tasks as fighting airplane fires and removing snow. You stated that it is Oshkoshs understanding that it has no EWR responsibilities for such vehicles in light of their off-road use. The second, you explained, includes snow removal trucks used in on-road service to clear public roads. You stated that it is Oshkoshs understanding that it must report EWR information on these trucks because they are civilian vehicles engaged in on-road work.

Oshkoshs understanding as to both subcategories of trucks is correct, based on the descriptions that you provided. As to the first subcategory, we have previously interpreted the term "motor vehicle" to exclude vehicles designed and sold solely for off-road use, and have referenced airport runway vehicles as one example of such vehicles.See letter of June 12, 1995, to Mr. Andrew Grubb. By contrast, the snow removal trucks conducting on-road work would be considered motor vehicles for EWR purposes.

The third category you referenced included trucks designed for and used in the on-road civilian market. You gave an example of concrete placement trucks and stated Oshkosh builds approximately 700 of these trucks each year. You explained that it was Oshkoshs understanding that it would have EWR responsibilities for these trucks because they are civilian and engaged in on-road work. I confirm that your understanding is correct.

We also note that, based on the annual production information provided in your letter, Oshkosh must submit quarterly EWR information for the two categories of heavy trucks covered by the EWR regulation, as required by 49 CFR 579.22. More specifically, the determinant between full and limited reporting (i.e., as small volume manufacturer under Section 579.27) is the total aggregate production for each reporting category of vehicle defined by the EWR regulation. See letter of August 20, 2003, to Mr. Rod Nash. In this case, it appears Oshkosh produces an estimated 950 medium-heavy vehicles per year, and therefore qualifies as a larger volume manufacturer of medium-heavy vehicles under Section 579.22.

If you have any further questions, please contact Andrew DiMarsico of this Office (202-366-5263).

Sincerely,

Jacqueline Glassman
Chief Counsel

ref:579
d.11/6/03

ID: Oshkosh_NEW

W. Thatcher Peterson
Product Safety Manager
Oshkosh Truck Corporation
2307 Oregon Street
P.O. Box 2566
Oshkosh, Washington 54903-2566

Dear Mr. Peterson:

This responds to your letter of September 22, 2003, requesting confirmation of Oshkosh Truck Corporations (Oshkosh) understanding of its early warning reporting (EWR) responsibilities under the TREAD Act and 49 CFR Part 579 with regard to the military and civilian heavy trucks it manufactures. Your letter provided information concerning three categories of heavy vehicles, one of which was divided into two subcategories: one subcategory for vehicles restricted to off-road use, and one subcategory for vehicles used on public streets and highways. My responses are organized according to the categories you identified.

The first category you referenced concerned trucks built exclusively for military use with no civilian counterparts. As to this category, I confirm that your understanding is correct that such trucks, designed and manufactured exclusively for military use, and with no civilian counterparts, are not subject to the EWR requirements. See letter of May 21, 2003, to Stewart & Stevenson.

The second category you referenced concerned Airport Rescue and Firefighting (ARFF) trucks and snow removal trucks. These trucks were, in turn, broken into two subcategories. The first, you explained, includes ARFF and snow removal equipment used exclusively for off-road service and almost exclusively at airports to perform such tasks as fighting airplane fires and removing snow. You stated that it is Oshkoshs understanding that it has no EWR responsibilities for such vehicles in light of their off-road use. The second, you explained, includes snow removal trucks used in on-road service to clear public roads. You stated that it is Oshkoshs understanding that it must report EWR information on these trucks because they are civilian vehicles engaged in on-road work.

Oshkoshs understanding as to both subcategories of trucks is correct, based on the descriptions that you provided. As to the first subcategory, we have previously interpreted the term "motor vehicle" to exclude vehicles designed and sold solely for off-road use, and have referenced airport runway vehicles as one example of such vehicles. See letter of June 12, 1995, to Mr. Andrew Grubb. By contrast, the snow removal trucks conducting on-road work would be considered motor vehicles for EWR purposes.

The third category you referenced included trucks designed for and used in the on-road civilian market. You gave an example of concrete placement trucks and stated Oshkosh builds approximately 700 of these trucks each year. You explained that it was Oshkoshs understanding that it would have EWR responsibilities for these trucks because they are civilian and engaged in on-road work. I confirm that your understanding is correct.

We also note that, based on the annual production information provided in your letter, Oshkosh must submit quarterly EWR information for the two categories of heavy trucks covered by the EWR regulation, as required by 49 CFR 579.22. More specifically, the determinant between full and limited reporting (i.e., as small volume manufacturer under Section 579.27) is the total aggregate production for each reporting category of vehicle defined by the EWR regulation. See letter of August 20, 2003, to Mr. Rod Nash. In this case, it appears Oshkosh produces an estimated 950 medium-heavy vehicles per year, and therefore qualifies as a larger volume manufacturer of medium-heavy vehicles under Section 579.22.

If you have any further questions, please contact Andrew DiMarsico of this Office (202-366-5263).

Sincerely,

Jacqueline Glassman
Chief Counsel

ref:579
d.11/6/03

ID: overbay

Mr. Larry W. Overbay
Director, Automotive and Support
Equipment Directorate
U.S. Department of the Army
U.S. Army Combat Systems Test Activity
Aberdeen Proving Ground, MD 21005-5059

Dear Mr. Overbay:

This letter follows up a telephone conversation between Mr. Edward Glancy of my staff and Mr. John Hretz of the U.S. Department of the Army in which Mr. Hretz requested a clarification of a February 17, 1995, letter that we sent to you. In that letter, we discussed the testing of air braked vehicles under Federal Motor Vehicle Safety Standard (FMVSS) No. 121, Air Brake Systems. We explained that, as a result of a court decision, the emergency stopping test requirements, set forth in S5.7.1 of the standard, are not currently applicable to trucks and trailers.

As Mr. Glancy explained, subsequent to that letter, the National Highway Traffic Safety Administration (NHTSA) issued a final rule reinstating emergency stopping tests in FMVSS No. 121. The amendments reinstating these tests take effect on March 1, 1997, for truck tractors and March 1, 1998, for other medium and heavy vehicles that are equipped with air brakes. Once these amendments take effect, the provisions in S5.7.1 will again be applicable to air braked vehicles.

Mr. Hretz asked whether, in conducting the emergency stopping distance tests, removal of the service air signal line (a non-manifold line which is designed to carry compressed air) from the rear air brake relay valve is considered by NHTSA to be a valid test. Your question is addressed below.

Section S5.7.1 states that

When stopped six times for each combination of weight and speed specified in S5.3.1.1, except for a loaded truck tractor with an unbraked control trailer, on a road surface having a PFC of 0.9, with a single failure in the service brake system of a part designed to contain compressed air or brake fluid (except failure of a common valve, manifold, brake fluid housing, or brake chamber housing), the vehicle shall stop at least once in not more than the distance specified in Column 5 of Table II.

In describing the failure conditions for which stopping distance requirements must be met, S5.7.1 broadly specifies "a single failure in the service brake system of a part designed to contain compressed air or brake fluid," except for certain listed parts. It is our opinion that the failure mode Mr. Hretz described in which one disconnects the service air signal line at the rear service air relay comes within this language. Therefore, a vehicle would not comply with FMVSS No. 121 if it did not meet the specified stopping distance requirements after disconnection of the service air signal line at the rear service air relay.

I hope this information has been helpful. If you have any other questions, please contact Marvin Shaw of my staff at this address or by phone at (202) 366-2992.

Sincerely,

John Womack Acting Chief Counsel

cc: Project Manager Family of Medium Tactical Vehicles (FMTV) Attn: SFAE-TWV-FMTV (Hretz) Warren, Michigan 48397-5000

ref:121 d:7/25/95

ID: oxbody.ztv

Mark H. Sidman, Esq.
Weiner, Brodsky, Sidman & Kider, P.C.
1350 New York Avenue, Suite 800
Washington, D.C. 20005-4797

FAX 202-628-2011

Re: Ox Bodies, Inc.

Dear Mr. Sidman:

This is in reply to your letter of June 3, 1997, to James Gilkey, Office of Vehicle Safety Compliance, in connection with the agency's investigation of whether Ox Bodies, Inc., has located rear clearance lamps in compliance with Federal requirements.

In your letter of June 3, you have offered your interpretation of paragraph S5.3.1.1. and paragraph S5.3.1.1.1 of 49 CFR 571.108 Standard No. 108 Lamps, Reflective Devices, and Associated Equipment. You believe that Standard No. 108's paragraphs relating to clearance lamp location fails the test of practicability "because it is impossible for regulated parties to demonstrate compliance".

Table II of Standard No. 108 requires that clearance lamps be located on the front and rear, to indicate the overall width of the vehicle. However, they may be located "other than on the. . . rear if necessary to indicate overall width or to protect them from damage during normal operation (S5.3.1.1.1). To prevent damage, Ox Bodies has located its rear clearance lamps "on the side."

In pertinent part, the first sentence of paragraph S5.3.1.1 of Standard No. 108 provides that "[e]xcept as provided in S5.3.1.1.1, each lamp and reflective device shall be located so that it meets the visibility requirements specified in any applicable SAE Standard or Recommended Practice." The applicable SAE standard for clearance lamps, incorporated by reference in Standard No. 108, is J592e "Clearance, Side Marker, and Identification Lamps", July 1972, which specifies nine photometry test points for clearance lamps at 45 degrees left, center, and 45 degrees right. The exception provided by Paragraph S5.3.1.1.1 is for clearance lamps mounted other than on the front and rear of the vehicle, which "need not be visible at 45 degrees inboard."

You also point out that the applicable portion of the second sentence of paragraph S5.3.1.1 prohibits any part of a vehicle from preventing "any other lamp [including clearance lamps] from meeting the photometric output at any test point specified in any applicable SAE Standard or Recommended Practice."

You comment that S5.3.1.1.1 does not say that alternatively located clearance lamps "need not be visible nor meet applicable photometric output requirements at 45 degrees inboard" and that this leads to an "irreconcilable internal inconsistency" in Standard No. 108. On the one hand clearance lamps may be mounted at alternative locations and need not be visible at 45 degrees inboard, but on the other hand, they are not exempted from meeting all photometric requirements, including those at 45 degrees inboard. You believe that these allegedly "contradictory" provisions make it impossible to comply with Standard No. 108.

At the recent meeting with Mr. Gilkey and others from this agency, the agency explained that it does not interpret Standard No. 108 as requiring photometric compliance where visibility compliance is not required. Nor have we ever suggested that the failure of side-mounted clearance lamps to meet SAE photometric requirements from 45 degrees inboard constitutes a noncompliance. You argue that this "mirror" interpretation creates a dead end because there are no SAE affirmative visibility requirements for clearance lamps in the first place, and that this internal inconsistency renders compliance impracticable.

You are correct that the SAE Standard J592e contains no visibility requirements, in spite of the contrary impression conveyed by the reference to visibility in the first sentence of S5.3.1.1 and in S5.3.1.1.1. But this erroneous reference to "visibility" has absolutely no effect upon S5.3.1.1's requirement (in its second sentence) that clearance lamps must be located to meet all applicable photometric requirements (including 45 degrees inboard). This, without more, is the operative requirement for clearance lamps no matter where located. Further, this has been the agency's position for over 20 years. See our letters of May 5, 1977 and July 29, 1996 to Dennis G. Moore, and of November 18, 1996, to Larry Keith Evans, Esq., copies enclosed.

However, since it is clearly impossible for a lamp that is not visible from a particular point to meet photometric output requirements from that point, by specifying that alternatively located clearance lamps need not meet visibility requirements at 45 degrees inboard, S5.3.1.1.1 must be viewed as relieving a manufacturer from meeting photometric requirements at the 45 degree inboard test points. At the recent meeting you attended representing Ox Bodies, the NHTSA participants indicated that the agency has interpreted paragraphs S5.3.1.1 and S5.3.1.1.1, not withstanding the reference to "visibility," as reading in pari passu to relieve a manufacturer of clearance lamp photometric compliance at the 45-degree inboard test points, and to require photometric compliance at all other test points.

Thus, while we agree that it is not "practicable" for truck manufacturers that utilize side-mounted clearance lamps to certify compliance with the photometric requirements for 45 degrees inboard required of rear-mounted clearance lamps, this has no bearing on the duty to assure (and certify) compliance at all other photometric test points, as required by the second sentence of S5.3.1.1. That requirement is clear and independent of any reference to "visibility." Indeed, you imply that the exception in S5.3.1.1.1 that applies only to the inboard test position somehow excuses a truck manufacturer from installing clearance lamps.

That implication defies common sense. The purpose of clearance lamps is to indicate the overall width of the vehicle. Thus, they must be located where a following driver could see them, or else they would be functionally useless. The rulemaking history of S5.3.1.1.1 indicates that the exception was adopted to facilitate use of clearance lamps on truck and trailer fenders, the widest point of the vehicle, located forward of the rear where inward visibility would be restricted because of the presence of cargo beds and the like (See 40 FR 24204 and 54427, copies enclosed). Further, the agency expects any manufacturer, faced with portions of a standard that appear to be contradictory, to exercise reasonable care by asking for an interpretation to resolve the inconsistencies. We have never received an inquiry from Ox Bodies indicating any difficulty in understanding its obligations under Standard No. 108.

Representatives of the Office of Safety Assurance are reviewing your letter of June 19, 1997, in which you suggest a disposition of this matter, and will telephone you shortly after your return.

Sincerely,
John Womack
Acting Chief Counsel
Enclosures
ref:108
d.7/5/97