ID: 15302.ztv

Mr. Dennis G. Moore
Sierra Products, Inc.
1113 Greenville Road
Livermore, CA 94550

Dear Mr. Moore:

This is in reply to your letter of May 28, 1997, to Samuel J. Dubbin, the former Chief Counsel of this agency. You ask for a "reconsideration" of his interpretation letter to you of July 29, 1996.

That letter informed you that we saw no conflict between California Vehicle Code Sec. 25100(e) requiring clearance lamps to be visible from all distances between 500 feet and 50 feet to the front and rear of the vehicle, and paragraph S5.3.1.1.1 of Federal Motor Vehicle Safety Standard No. 108 providing that clearance lamps located other than on the front and rear need not be visible at 45 degrees inboard. In our opinion, S5.3.1.1.1 did not relieve clearance lamps of the requirement that they be visible and meet minimum photometric requirements "directly to the rear" and at 45 degrees outboard.

You disagree with this interpretation, commenting that "perhaps one could see at least one of the so-called Clearance lights 'to the rear' if one were in the left or right lane directly adjacent to the lane" in which the vehicle carrying the clearance lamps were traveling. We do not think that our interpretation was mistaken. It remains our belief that a clearance lamp located other than on the rear of a vehicle, such as on a fender, but which is visible directly to the rear, will be visible without reference to an adjacent lane, and will be visible from 50 to 500 feet directly to the rear of the vehicle as specified by CVC Sec. 25100(e). The issue of whether a particular manufacturer may have violated the standard by recessing its clearance lamps on the side of a vehicle so that they are not visible and do not meet applicable photometric requirements from the rear is a different issue, and does not call into question our prior interpretations.

We appreciate your bringing this matter to our attention.

Sincerely,
John Womack
Acting Chief Counsel
ref:108
d:7/17/97

ID: 15303.ztv

Mr. David Hutton
Intereurope Regulations Ltd
21-23 East Street
Hareham
Hampshire PO16 DB4
England

Dear Mr. Hutton:

This replies to your FAX of April 23, 1997, to Richard Van Iderstine of this agency, asking whether there is an error in paragraph S8.9 of Federal Motor Vehicle Safety Standard No. 108, as it appears on page 247 of Title 49 Parts 400 to 999 of the Code of Federal Regulations revised as of October 1, 1996.

You are quite correct. The final sentence of S8.9 in the October 1, 1996, edition begins with the phrase "Distance 'A'". This is an error. The sentence beginning "Distance 'A'" should be the final sentence of S9 as amended on November 28, 1995. The 1996 volume mistakenly placed this amendment in S8.9.

Thank you for calling this matter to our attention. We have arranged for a correction in the next edition of Title 49 Parts 400 to 999.

Sincerely,
John Womack
Acting Chief Counsel
ref:108
d.6/24/97

ID: 15305.ztv

Mr. Mark A. Evans
Photometric Engineer
Calcoast - ITL Lighting Technology
P.O. Box 8702
Emeryville, CA 94662

Dear Mr. Evans:

This is in reply to your letter of May 16, 1997, to Messrs Van Iderstine and Boyd of this agency. For your future reference, the Office of Chief Counsel has been designated as the Office of the National Highway Traffic Safety Administration responsible for providing legal interpretations of the Federal motor vehicle safety standards.

You ask what components of a headlamp must be included when a corrosion test is conducted on it pursuant to Federal Motor Vehicle Safety Standard No. 108. Specifically you ask whether it is "just the housing lens, reflector and bulb?" Because paragraph S8.4(b) "makes a reference to unfixtured," you also ask whether that implies that "the aim and mounting hardware should be included?" Finally, because the connector is to be attached to the bulb, you ask whether that makes "the bulb compression spring a headlamp component?"

The performance requirements to which paragraph S8.4 relates are set forth in paragraph S7.4(h)(3) (applicable to integral beam headlamps) and paragraph S7.5(i) (applicable to replaceable bulb headlamps). These paragraphs require that, after a corrosion test of a headlamp conducted according to paragraph S8.4, "there shall be no evidence of external or internal corrosion or rust visible without magnification." When a headlamp is tested as provided in paragraph S8.4, it is to be tested "with connector attached to the terminals, unfixtured . . . ." Paragraph S4 defines a headlamp test fixture as a test device "whose mounting hardware and components are those necessary to operate the headlamp as installed" on a motor vehicle.

Since the headlamp is to be tested unfixtured, this means that a test headlamp need not be equipped with mounting hardware and associated components at the time of testing for corrosion resistance. However, all other components of the headlamp would be subject to the corrosion test, including its aiming hardware (if so equipped) and the bulb compression spring, and be required to comply with corrosion resistance requirements specified by Standard No. 108.

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

Sincerely,
John Womack
Acting Chief Counsel
ref:108
d.6/24/97

ID: 15308.jeg

Mr. Jiro Doi
Vice President and General Manager
Mitsubishi
1111 19th Street, N.W.
Suite 600
Washington, DC 20036

Dear Mr. Doi:

This responds to your letter concerning Standard No. 208's requirements for passenger air bag manual cut-off devices. As you note in your letter, S4.5.4 of the standard permits these devices in vehicles which either do not have rear seats or have rear seats that are smaller than a specified size. You stated that you are studying the feasibility of installing retrofit cut-off switches on such vehicles, and ask two questions concerning this matter.

First, you ask us to confirm your understanding that installation of retrofit cut-off switches in these vehicles would not violate the provision in Federal law that prohibits manufacturers and other commercial entities from making required safety equipment inoperative.⁽¹⁾

Your understanding is correct. Because Standard No. 208 would have permitted these vehicles to be manufactured with passenger air bag manual cut-off devices when new, and so long as the devices used for retrofit meet all of the requirements specified in the standard for such devices, there would not be any violation of the "make inoperative" provision.

Second, you ask about S4.5.4.3's requirement that the telltale light for the cut-off device be "on the dashboard." You state that you believe the location of the manual cut-off device depicted in an attached drawing "is clearly visible from all front seating positions and may be considered a part of the dashboard." You state that you therefore believe that "placing the telltale lamp and air bag cut-off switch in the attached location between driver and passenger seating positions may comply with the requirements of S4.5.4.3."

As discussed below, we do not agree that the location shown in your drawing is considered a part of the dashboard. Therefore, the design would not comply with S4.5.4.3.

Your drawing shows the location of the manual cut-off device, including both the telltale lamp and air bag cut-off switch, as being on a low-lying portion of a center console which ultimately rises to meet the dashboard. We have previously issued interpretations addressing the issue of where the center console ends and the dashboard begins in the context of Standard No. 201. (Enclosed are copies of an October 27, 1986 letter to Mr. Tsuyoshi Shimizu and a July 21, 1988 letter to Mr. Hiroshi Kato.)

While we recognize that there is sometimes difficulty in determining the dividing line between a dashboard and an adjoining console, we believe the location shown on your drawing is on the console. This conclusion is based on the fact that location appears to be on a low-lying portion of the console, and before any significant rise toward the dashboard. We also note that, while it is difficult to tell from your drawing, there appears to be an indentation or gap that separates the instrument panel from the console. The location shown on your drawing is well below, and apparently rearward of, the indentation or gap.

I hope this information is helpful. If you have any further questions, please feel free to call Edward Glancy of my staff at (202) 366-2992.

Sincerely,
John Womack
Acting Chief Counsel

Enclosures

ref:208

d.9/15/97

1. You cite 15 U.S.C. 1397(a)(2)(A) as the statutory reference for this provision. I note that this section was subsequently codified, without substantive change, at 49 U.S.C. 30122.

ID: 15309.ztv

Mr. Louis W. Camp
Director
Automotive Safety and Engineering Standards
Environmental and Safety Engineering
Ford Motor Company
330 Town Center Drive
Dearborn, MI 48126

Dear Mr. Camp:

This is in reply to your letter of May 29, 1997, to the Administrator asking that the term "overall width" as used in Federal Motor Vehicle Safety Standard No. 108 be interpreted to exclude running boards. Specifically, Ford Motor Company wishes to equip certain pickup trucks and sport utility vehicles with running boards that are wider than currently offered; however to do so would increase the vehicles' "overall width" from 79.8 inches to 85 inches.

Standard No. 108 requires trucks and multipurpose passenger vehicles which are 80 inches or more in overall width to be equipped with clearance lamps and identification lamps. In 1967, the agency clarified, in Note 1 to Standard No. 108, that

"'Overall width' refers to the nominal design dimension of the widest part of the vehicle, exclusive of signal lamps, marker lamps, outside rearview mirrors, flexible fender extensions, and mud flaps, determine (sic) with doors and windows closed and the wheels in the straight-ahead position."

Although the definition of "overall vehicle width" in 571.3(b), which you quote, is substantively identical, it is the interpretation of Standard No. 108's term "overall width" that is the conformance determinant at issue.

You call our attention to the fact that "outside door handles" have also been excluded from the definition through a letter of interpretation to Iveco Trucks of North America dated December 9, 1980. Ford is unclear whether running boards should be included in the measurement for determination of "overall width" but believes that running boards should be treated in a fashion similar to door handles. You point out that the overall width of the vehicles for which you seek exemption is actually 90.5 inches when their exterior rear view mirrors are included.

Our review of the letter to Iveco indicates that we excluded door handles from "overall width" because "they are substantially similar in character to outside rearview mirrors and the other

equipment items listed." We agree that running boards are also similar to these items, and, therefore, they need not be included in the nominal design dimension of the widest part of the vehicle when a manufacturer calculates a vehicle's "overall width" for purposes of compliance with the lighting requirements of Standard No. 108, as long as they do not extend beyond the width of the other items excluded from the definition of "overall width."

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

Sincerely,
John Womack
Acting Chief Counsel
ref:108
d.6/17/97

ID: 15319.jeg

Mr. Ottar Cato Olsen
Project Engineer
Safety & Homologation
PIVCO AS
Stanseveien 4
N-0975 Oslo
NORWAY

Dear Mr. Olsen:

This responds to your letter, addressed to Paul Atelsek of my staff, asking several questions about our safety standards. I apologize for the delay in our response.

You first ask about a proposed design for a passenger air bag (PAB) on-off switch for "two seat cars." You state:

The proposed solution for deactivating the PAB is as follows:

• Turn the ignition switch to start position . . .;
• The start position on the ignition key will activate a PAB switch;
• The PAB switch, located on the top of the steering column cover, can now be pushed to activate/deactivate the PAB;
• If the PAB is deactivated, a yellow light in the center console (visible for both people in the front) will be turned on.

It is only possible to change the PAB status when the ignition key is in the start position.

You asked whether this system would meet NHTSA's requirements, and whether this agency has "any lamp display that PIVCO can use for the deactivated PAB."

By way of background information, NHTSA has established specific requirements for passenger air bag manual cut-off devices. These requirements are set forth in S4.5.4 of Standard No. 208. I have enclosed a copy of that section revised as of October 1, 1996, and a final rule published on January 6, 1997 (Docket 74-14, Notice 109) which amended that section.

As you will see, your proposed design would not meet the requirements of S4.5.4. For example, it would not meet the requirement specified in S4.5.4.2 that a passenger air bag manual cut-off device must be separate from the ignition switch for the vehicle, "so that the driver must take some action with the ignition key other than inserting it or turning it in the ignition switch to deactivate the passenger air bag." Also, it would not meet the requirement in S4.5.4.3 that the telltale light be located on the dashboard. As to your question concerning whether this agency has "any lamp display that PIVCO can use for the deactivated PAB," S4.5.4 includes several requirements for the display. Among other things, S4.5.4.3 specifies that the telltale must be yellow, and must have the identifying words "AIR BAG OFF" on the telltale or within 25 millimeters of the telltale.

You next ask when the "new FMVSS 201" will influence PIVCO. You state that PIVCO is a small car manufacturer, with only one vehicle line, producing 5,000 cars a year.

Federal Motor Vehicle Safety Standard No. 201; Occupant Protection in Interior Impact was amended by a final rule published on August 18, 1995 (62 FR 16718). This final rule, which established new requirements for head protection, was amended by a notice published on April 8, 1997 (62 FR 16718).

The standard provides manufacturers with four phase-in options for meeting its requirements.

These phase-in options are not dependent on the number of vehicles produced by a manufacturer. Options one and two, found in S6.1.1. and S6.1.2 of the Standard, provide that certain percentages of production manufactured on or after September 1, 1998 must meet the new requirements. The third option, found in S6.1.3 of the Standard, states that manufacturers need not produce any complying vehicles before September 1, 1999 but that all vehicles produced on or after that date must comply. This option, which provides longer lead time than the first two options, was intended to accommodate manufacturers with limited product lines.

The fourth option is applicable only to final stage manufacturers. The term "final stage manufacturer" is defined at 49 CFR 568.3 as "a person who performs such manufacturing operations on an incomplete vehicle that it becomes a completed vehicle." An "incomplete vehicle" is defined in that section as "an assemblage consisting, at a minimum, of frame and chassis structure, power train, steering system, suspension system, and braking system . . . that requires further manufacturing operations . . . to become a completed vehicle." If PIVCO is a "final stage manufacturer," it need not produce any vehicles that comply before September 1, 2002. However, all vehicles manufactured on or after that date must comply.

There is no exclusion from the Federal motor vehicle safety standards (FMVSS) based upon the volume produced by the manufacturer. All motor vehicles must comply with all FMVSS, unless the agency has exempted them from one or more of the standards. NHTSA is authorized by 49 U.S.C. 30113 to exempt, on a temporary basis, a manufacturer whose total yearly production does not exceed 10,000 motor vehicles, from any FMVSS that would cause the manufacturer substantial economic hardship were it required to meet it immediately. The application procedures for such an exemption are contained in 49 CFR 555.5 and 555.6(a). The applicant must not only show hardship, but also that it has tried in good faith to meet the standard from which it requests relief.

Finally, you ask about contact persons within NHTSA. You ask whether it is OK for all communications between PIVCO and NHTSA to go through Mr. Atelsek, and whether there is any other way of communicating with NHTSA, e.g., by fax or e-mail.

In communicating with NHTSA, PIVCO should contact the specific office or person for which it has relevant questions or other business, to the extent it has the knowledge to do so. Requests for legal interpretation should be sent to Chief Counsel, Room 5219, National Highway Traffic Safety Administration, Washington, DC 20590 (FAX 202-366-3820). Questions regarding Standard 208 should be directed to Mr. Edward Glancy (eglancy@nhtsa.dot.gov). Inquiries about Standard 201 should be directed to Mr. Otto Matheke (omatheke@nhtsa.dot.gov).

Sincerely,

John Womack
Acting Chief Counsel

Enclosures
ref:208
d.11/5/97

ID: 15334.ztv

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

Dear Herr Spingler:

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

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

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

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

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

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

ID: 15398-1.pja

Mr. Michael L. Ulsh
Mechanical Engineer
Summit Trailer Sales, Inc.
One Summit Plaza
Summit Station, PA 17979

Dear Mr. Ulsh:

This responds to your letter requesting an interpretation of whether the vehicles that your company manufactures are excluded from the National Highway Traffic Safety Administration's (NHTSA's) rear impact protection (underride guard) regulations. As explained below, your vehicles are not excluded from the regulation.

You ask about Federal Motor Vehicle Safety Standard (FMVSS) No. 224, Rear impact protection, which in January 1998 will require most trailers and semitrailers weighing over 10,000 pounds to be fitted at the rear with an underride guard. Certain trailers are excluded from these requirements. You provided drawings and descriptions of four types of vehicles your company manufactures. In each case, you are concerned with the requirement in S5.1.3 which states that "the rearmost surface of the horizontal member of the guard shall be located as close as practical to a transverse vertical plane tangent to the rear extremity of the vehicle, but no more than 305 mm [about 12 inches] forward of that plane." S4 defines the rearmost extremity, in pertinent part, as

the rearmost point on a vehicle that is . . . below a horizontal plane located 1,900 mm above the ground . . . when the vehicle's cargo doors, tailgate, and other permanent structures are positioned as they normally are when the vehicle is in motion. Nonstructural protrusions such as taillights, rubber bumpers, hinges and latches are excluded from the determination of the rearmost point.

I will discuss the vehicle types in the order that your letter did.

Frame-type dump trailer

This vehicle has a deflector plate at the rear that extends rearward 12 inches from the end of the chassis. It deflects the load away from the trailer when it is dumping. You state that the plate is not a "structural member" because it is bolted or welded to the rear of the body. You also express some concerns that the trailer rear end might have to be modified by either moving the rear tires forward or extending the frame to prevent the guard from contacting the tires when the vehicle is dumping.

Is the rear extremity measured from the end of the deflector plate?

Yes. The definition of "rear extremity" states "nonstructural protrusions such as taillights, rubber bumpers, hinges and latches are excluded from the determination of the rearmost point." Merely because the deflector plate is attached to the body does not mean that an object is nonstructural. The definition of rear extremity refers to the "rearmost point on the vehicle," (emphasis added) not the rearmost point of the chassis. The attributes that the excluded objects have in common is that they are relatively small and localized and would not have a major impact on a colliding passenger vehicle. A 0.19 inch thick aluminum (or 7 gauge steel) plate extending across the entire width of the trailer is part of the vehicle, and is not a "nonstructural protrusion."

If so, where should the guard be located so that it lies no more than 12" (305mm) from the vertical plane tangent to the rear extremity . . . What are our alternatives for mounting this guard in a feasible manner and still comply with the new regulations?"

This is an engineering question that your engineers are in a better position to answer than we are. European governments use "type approval," which means that they approve particular designs as complying with their safety standards. In the United States, we write performance standards, and the vehicle manufacturers are responsible for devising engineering solutions to meet those standards. Therefore, NHTSA is not required to suggest, and will not approve, particular designs. In some cases, trailer rear end redesign might be necessary in order to comply with our underride guard standards.

However, you might want to consider two alternatives for meeting the standards that do not involve major redesign. One would be cantilevering the horizontal member of the rear impact guard slightly rearward from the rear of the chassis so that it is within 12 inches of the rear of the deflector plate. Another, possibly simpler alternative would be attaching the deflector plate in such a way that it would pivot at its upper edge and automatically swing downward (for example, when the tailgate is closed). The determination of rear extremity will be made "when the vehicle's cargo doors, tailgate, and other permanent structures are positioned as they normally are when the vehicle is in motion." If the plate were designed to have the "dropped" configuration whenever the vehicle is in motion, then NHTSA would not consider the plate to be the rear extremity of the vehicle. In fact, your particular vehicle would then meet the definition of an excluded "wheels back" trailer, because the rearmost surface of the rear tires would be within 12 inches of the rear extremity.

Frameless dump trailer

This type of trailer has a subframe that rolls forward when the trailer is dumping so that the front wheels leave the ground. You state that an underride guard attached to the subframe would rotate downward with the subfame and contact the ground slightly (according to your illustration) before the trailer reaches its maximum dump angle of 54 degrees.

Where should the guard be placed to comply with FMVSS No. 224, yet not interfere with the normal operation of the trailer? Are there any exclusions for this particular design?

There are no exclusions for dump trailers. As stated above, NHTSA cannot help to design your trailers. The previously mentioned possibility of a drop down deflector plate would probably also work for the frameless dump trailer. We would like to note that there is no requirement to mount the underride guard to the subframe. You could mount the guard to the axle or any other structural member that would provide adequate support.

Dual Arm trailer

This trailer has a steel bucket attached to two hydraulic arms which extend rearward on the sides of the trailer. During transit, the bucket is transported behind the trailer, with its lower rear corner at a distance of 36 inches behind the rear of the chassis and 70 inches from the ground.

Does this trailer qualify for the "special purpose vehicle" exclusion? If not, where should the guard be placed to comply with FMVSS No. 224?

Your dual arm trailer does not meet the definition of a special purpose vehicle. A special purpose vehicle is defined in S4 of FMVSS No. 224 as "a trailer or semitrailer having work-performing equipment . . . that, while the vehicle is in transit, resides in or moves through the area that could be occupied by the horizontal member of the rear underride guard . . . ." (Emphasis added.) According to your drawing, the bucket does not pass through the area where the horizontal member of the underride guard would be located while the vehicle is in transit, but instead resides about 70 inches off the ground. Therefore, your trailers are not excluded from the standard as special purpose vehicles.

As to locating the guard, your difficulty is the same as with the frame-type dump trailer. A piece of the trailer extends into the zone of consideration for determining the vehicle's "rear extremity," thereby creating a rear extremity (and therefore a required guard location) that is significantly behind the end of the trailer chassis. The bucket stows while in transit at a height that is not quite high enough to be excluded from consideration as the vehicle "rear extremity." Rear extremity is defined as the rearmost point "below a horizontal plane located 1,900 mm (about 75 inches) above the ground . . . ."

Although we do not know how feasible it would be, your drawing indicates that if the bucket were stowed only a few inches higher, above the upper limit of the zone of consideration for rear extremity, the rear extremity would then be considered to be the end of the chassis (or the end of the "bucket holder side plate," depending on where that is moved to). That would produce a fairly standard situation for attaching the guard to the end of the chassis.

Walking floor trailer

This trailer has steel chassis beams that extend 6 inches beyond the end of the trailer body to form a "pusher bumper." The bumper is 42 inches wide and approximately 39 inches from the ground.

Is the rear extremity measured from the end of the pusher bumper?

Yes. As indicated in the discussion of your dual arm trailer, the rearmost point of the trailer below approximately 75 inches from the ground will be considered the rear extremity. The pusher bumper is 39 inches off the ground, and is certainly too massive to be considered in the excluded category of "rubber bumpers." Therefore, it would be considered the rear extremity.

The guard would have to be mounted no more than 12 inches forward of the pusher bumper. However, S5.1.3 states that "the rearmost surface of the horizontal member of the guard shall be located as close as practical [to the vehicle's rear extremity](emphasis added). Therefore, unless there is some reason that it would not be practical, you are required to mount the guard so that the rearmost face of the guard's horizontal member aligns with the rear face of the pusher bumper.

This letter merely applies the existing regulatory language to the questions you posed, and does not constitute a judgment that your trailers could operate with a conventional underride guard in place. We have made a few observations that may suggest some engineering solutions that would meet the requirements of the standard without compromising the function of your vehicles. However, we reiterate that NHTSA is not responsible for vehicle design.

If there are solutions that you would not be able to implement before the January 26, 1998 effective date of the rule, you can apply for a temporary exemption. Under one of our regulations (49 CFR Part 555), vehicle manufacturers may apply for a temporary exemption from the Federal motor vehicle safety standards. Under Sec. 555.6(a), a manufacturer whose yearly production is not more than 10,000 units may ask for an exemption of up to three years on the basis that compliance would cause it substantial economic hardship and that it has attempted in good faith to comply with the standard from which it has asked to be excused. I have enclosed a copy of Part 555 for your information. Please note that it takes three to four months from the date of submittal before a decision can be made on such an application because it has to be submitted for public comment.

If you have any further questions, please feel free to contact Paul Atelsek of my staff at this address or by telephone at (202) 366-2992.

Sincerely,
John Womack
Acting Chief Counsel
Enclosures: 49 CFR Part 555
ref:224
d.10/20/97

ID: 15400.ztv

Mr. Thomas E. Derecktor
Chief Engineer, TracRac
994 Jefferson Street
Fall River, MA 02721-4893

Dear Mr. Derecktor:

This is in reply to your letter of June 10, 1997, with respect to the relationship of the TracRac Overhead Rack system to the requirements of Federal Motor Vehicle Safety Standard No. 108 for center high-mounted stop lamps (CHMSL).

Specifically, you have cited the concerns of the legal staff of General Motors (GM) that the rack may interfere with the visibility requirements for the CHMSL. The applicable requirements are those of SAE Recommended Practice J186a, September 1977, rather than of SAE J186 DEC89 as you quoted, but they are essentially the same. Paragraph 4.1 of J186a states that "Visibility of the signal shall not be obstructed by any part of the vehicle from 10U to 5D and from 10L to 10R unless the lamp is designed to comply with all requirements when the obstruction is considered."

The upper rails of TracRac may be retracted when the system is not in use. You point out that the CHMSL will comply when TracRac is in its retracted position, but does not comply in a minor respect when the rails are not retracted. You propose adding a label to the driver's side base rail, advising the customer where to position the upper rack when it is not in use. Alternatively, you propose adding a second CHMSL mounted below the forward rack crossbar. You state that this configuration will meet Standard No. 108 with the rack in any position.

Our opinion follows. From the literature you enclosed, we see that TracRac is an accessory promoted by GM in its product literature. We assume that this will be added by a GM dealer, either before or after sale of the vehicle to its first purchaser for purposes other than resale. Title 49 U.S.C. Sec. 30112(a) prohibits the sale of a nonconforming vehicle to its first purchaser for purposes other than resale. Once a vehicle is sold, 49 U.S.C. 30122 forbids a dealer (as well as a manufacturer, distributor, or motor vehicle repair business) from making inoperative any device or element of design installed in accordance with the Federal motor vehicle safety standards. This would apply to the aftermarket installation of racks that create a noncompliance with CHMSL visibility specifications.

Your alternative solution is to provide an additional lamp below the forward rack crossbar which "complements the original CHMSL, by blanketing the narrow blind spot caused by the rear rack", and that "this configuration likewise passes FMVSS 108." This language can be interpreted as meaning that neither lamp complies on its own but requirements are met by the array of two CHMSLs. This would not be acceptable. Paragraph S5.3.1.1(b) of Standard No. 108 states that if motor vehicle equipment prevents compliance with any visibility or photometric requirements of a required lamp, an auxiliary lamp shall be provided that meets all applicable visibility and photometric requirements. This means that your additional lamp must itself comply with Standard No. 108 when TracRac is installed on the vehicle.

In a recent telephone call to Taylor Vinson of this Office, you asked whether the CHMSL could be vertical rather than horizontal. Standard No. 108 does not specify the shape of a CHMSL. Most are rectangular but some have been circular (Cadillac Allante), or "string bean" in shape (Cadillac Seville). Thus, any shape may be chosen as long as photometric and visibility requirements are met.

With respect to your "Primary Solution", to add a warning label, we do not view the addition of a warning label as satisfying Standard No. 108. A noncompliance will exist when the rack is not retracted.

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

Sincerely,
John Womack
Acting Chief Counsel
ref:108
d.7/28/97

ID: 15401pre.emp

Mr. Donald Fowler
Interpretations Committee Chairman
1995 National Conference on School Transportation
1213 E. Main St.
Richmond, MO 64085

Dear Mr. Fowler:

This responds to your June 12, 1997, interpretation request which you faxed to this agency, asking whether your organization's recommendations for school bus fuel tanks "conflict" with Federal Motor Vehicle Safety Standard No. 301, Fuel System Integrity. The question you ask presupposes that a State has prescribed a standard incorporating the recommendations for fuel tanks of the 1995 National conference on school buses. You wish to know whether the State standard would be preempted by Federal law, or whether it would be considered to impose a "higher level of performance" and thus permitted.

The recommendations of the 1995 National Conference of School Transportation include seven for the "Fuel Tank" (pages 16-17, National Standards for School Buses and School Bus Operations, 1995 Revised Edition). We have restated these in an attachment to this letter. The recommendations primarily concern location of the fuel tank and related components, such as the fuel filter and filler spouts. There is also a provision concerning installation of alternative fuel systems and LPG tanks.

Conventional Fuels

Under 30103 of our statute (49 U.S.C. 30101 et seq., see attachment), Federal law will preempt a State law if (1) there is a Federal safety standard in effect, (2) the State law covers the same aspect of performance as that Federal standard, and (3) the State law is not identical to the Federal standard; except to the extent that the State requirement imposes a higher level of performance and applies only to vehicles procured for the State's use.

Our statute would preempt State requirements of general applicability governing the location of the tank and components. The State requirements are intended to ensure the integrity of the vehicle fuel system and, therefore, would be regarded by the agency as relating to the same aspect of performance as the barrier impact tests of Standard 301. In developing the performance requirements of the standard, the agency did not intend that the location of fuel tanks and other components should be regulated. That aspect of fuel system construction is preempted by Standard 301.

However, the second sentence of 30103(d)(1) clarifies that the limit on State safety regulations of general applicability does not prevent governmental entities from specifying additional safety features in vehicles purchased for the State's own use. Thus, the State or its political subdivisions could specify additional fuel system requirements, such as those for tank location and the other provisions set forth in your recommendations, in the case of public school buses. The State requirements cannot, however, prevent the school bus or equipment from complying with applicable Federal safety standards.

Alternative Fuels

Recommendation No. 7 states: "Installation of alternative fuel systems, including fuel tanks and piping from tank to engine, shall comply with all applicable fire codes and applicable Federal Motor Vehicle Safety Standards in effect on the date of manufacture of the bus. * * * Installation of LPG tanks shall comply with National Fire Protection Association (NFPA) 58."

Our statute would preempt State requirements of general applicability governing compressed natural gas (CNG) fuel system integrity unless they are identical to the Federal standard. Standard 303, Fuel System Integrity of Compressed Natural Gas Vehicles, applies to school buses that use CNG as a motor fuel. A State standard for CNG vehicle fuel system integrity must be identical to Standard 303, unless it specifies additional requirements for public school buses.

There is no Federal standard on LPG tanks. We have issued Standard 304 for CNG fuel container integrity, but there is no comparable standard for LPG containers. Because there is no Federal standard for LPG tanks, State standards for such tanks would not be preempted.

The Federal Highway Administration may have operational and equipment requirements for some types of school buses. We have forwarded a copy of your fax to the FHWA for its views on your recommendations.

I hope this information is helpful. If you have other questions, please contact Deirdre Fujita of my staff at (202) 366-2992.

Sincerely,
John Womack
Acting Chief Counsel
Enclosure
ref:VSA#301#303

ATTACHMENT A

Excerpt from National Standards for School Buses

and School Bus Operations

(1995 Revised Edition, Pp. 16-17)

1. Fuel tank or tanks having a 30 gallon capacity with a 25 gallon actual draw shall be provided by the chassis manufacturer. The tank shall be filled and vented to the outside of the body, in a location where accidental fuel spillage will not drip or drain on any part of the exhaust system.
2. No portion of the fuel system which is located outside the engine compartment, except the filler tube, shall extend above the top of the chassis frame rail. Fuel lines shall be mounted to obtain maximum possible protection from the chassis frame.
3. Fuel filter with replaceable element shall be installed between the fuel tank and engine.
4. Fuel tank installation shall be in accordance with SBMI Design Objectives, 1990 edition, and all Federal Motor Vehicle Safety Standards in effect on the date of manufacture of the bus.
   
   1. Fuel tank(s) may be mounted between the chassis frame rails or outboard of the frame rails on either the left or right side of the vehicle.

5. The actual draw capacity of each fuel tank shall be 83% of the tank capacity.
6. Unless specific agreement has been made between the body and chassis manufacturers, fuel tanks and filler spouts shall not be located in spaces restricted by SBMI Design Objectives, 1990 edition.
7. Installation of alternative fuel systems, including fuel tanks and piping from tank to engine, shall comply with all applicable fire codes and applicable Federal Motor Vehicle Safety Standards in effect on the date of manufacture of the bus.
   
   1. Installation of LPG tanks shall comply with National Fire Protection Association (NFPA) 58.

Section 30103(b)(1) of Title 49 of the United States Code

When a motor vehicle safety standard is in effect under this chapter, a State or 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. However, the United States Government, a State, or a political subdivision of a State may prescribe a standard for a motor vehicle or motor vehicle equipment obtained for its own use that imposes a higher performance requirement than that required by the otherwise applicable standard under this chapter.