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

ID: 20391.ogm

Mr. Gil De Laat
Manager, Governmental Affairs
Subaru of America
Subaru Plaza
P.O. Box 6000
Cherry Hill, NJ 08034-6000

Dear Mr. De Laat:

This responds to your letter asking for our interpretation of Federal Motor Vehicle Safety Standard (FMVSS) No. 207, Seating systems, as it applies to the seat belt web guide attached to the seatback of a rear center seat. I apologize for the delay in our response. You describe the web guide as a plastic extrusion that forms a loop to guide seat belt webbing. Your letter further states that the guide does not have any structural benefit for the purposes of seat or seat belt performance, but instead acts to position the seat belt for user comfort. You ask that we provide our opinion of the applicability of S4.2 of FMVSS No. 207 to the seat belt guide.

FMVSS No. 207 is intended to ensure that seats and their attachments are strong enough not to fail as a result of "forces acting on them as a result of vehicle impact" (S1). S4.2 sets forth the general performance requirements for occupant seats and specifies that a seat shall withstand certain forces in a forward direction (S4.2.(a)), certain forces in a rearward direction (S4.2.(b)), and certain forces applied to the seatback (S4.2(d)). In addition, if a seat belt assembly is attached to the seat, the seat shall simultaneously withstand the loads specified in S4.2.(a) or (b) and the belt anchorage loads of S4.2 of FMVSS No. 210, Seat belt assembly anchorages.

We assume your question is not whether the seat would be subject to S4.2, which it undoubtedly is, but rather whether the addition of the seat belt webbing guide to the seat back requires that the seat be tested in accordance with the requirements of S4.2(c). We note that S4.2(c) applies in those instances where a seat belt is "attached" to the seat. The use of a webbing guide that is permanently attached to the seat raises the question of whether such a guide is an "attachment" for the purposes of S4.2(c).

Your letter states that the web guide "does not have any structural benefit for the purposes of seat or seat belt performance, but rather acts to position the seat belt webbing for user comfort." Under the conditions you describe, it is our opinion that the web guide is not an "attachment" of the seat belt assembly to the seat for the purposes of FMVSS No. 207. A seat that has no seat belt anchorage attached to it will not experience the load from the seat belt in a crash. You have represented that the web guide serves no structural purpose and will not transfer seat belt loads to the seat itself. Since the seat will not be loaded in a crash by the forces generated by the safety belt, it is not necessary that the seat be capable of withstanding the load from the belt. Thus, the use of the web guide you describe does not require that the seat be subjected to the seat belt anchorage loads of FMVSS No. 210.

I hope that this is responsive to your inquiry. If you have any questions, please contact Otto Matheke of this office at (202) 366-5253.

Sincerely,
Frank Seales, Jr.
Chief Counsel
ref:207
d.7/10/00

ID: 20393.ztv

Mr. Thomas N. Nelson
President
Athey Products Corporation
1839 S. Main Street
Wake Forest, NC 27587
FAX 919-556-0122

Dear Mr. Nelson:

We have received your petition, dated July 23, 1999, pursuant to 49 CFR Part 555, for a temporary exemption from S5.5.1 of Federal Motor Vehicle Safety Standard No. 105, which requires heavy vehicles manufactured on and after March 1, 1999, to be equipped with an antilock brake system.

Noting that the petition estimated October 1, 1999, as the date by which full compliance will be achieved, Taylor Vinson of this Office telephoned Larry Fetter of your company on July 30, 1999, for a clarification. We learned that the vehicles for which exemption is sought are model M8A and M9D Mobil Street Sweepers that Athey has manufactured from March 1, 1999, to date, and which have already been sold, without antilock brake systems. Thus, it appears that your company may be in violation of 49 USC 30112(a) for manufacturing and selling nonconforming vehicles. Athey may also be in violation of 49 USC 30115 if it certified that the vehicles complied with all applicable Federal motor vehicle safety standards (or if it failed to affix any certification at all).

The exemption authority under which you applied, 49 USC 30113 implemented by 49 CFR Part 555, is prospective in nature, allowing acts that are otherwise prohibited by 49 USC 30112(a), such as manufacturing and selling noncomplying motor vehicles. We have no authority to excuse violations of 49 USC 30112(a)that have already occurred.

When a manufacturer determines that there is a noncompliance in its product, it is required to take immediate steps to notify the National Highway Traffic Safety Administration formally by following the procedures set forth in 49 CFR Part 573. Athey must follow this procedure now with respect to the sweepers manufactured since March 1, 1999. Athey is then required to notify dealers and purchasers pursuant to 49 CFR Part 577, and to formulate a remedy for the noncompliance. The three statutory remedies are repair of the noncompliance (by retrofit in this instance), repurchase of the vehicle, or replacement with a conforming equivalent. With respect to the Athey sweepers, "repair" could entail governing the maximum speed from 50 mph to 33 mph or less, the speed at which an antilock system is required.

However, we do have authority to exempt a manufacturer from the notification and remedy requirements upon finding that the noncompliance is inconsequential to motor vehicle safety. You may file an inconsequentiality application by following the procedures set forth in 49 CFR Part 556. Petitions under Part 556 should be submitted not later than 30 days after a company notifies the agency under Part 573 that a noncompliance exists.

Unlike the granting of a Part 555 petition, the granting of a Part 556 petition does not allow you to continue to manufacture and sell a nonconforming motor vehicle; that is allowable only under a Part 555 exemption decision. This means that Athey may no longer manufacture and sell the two models of noncompliant vehicles in the United States until they fully conform to Standard No. 105. In addition, the granting of a Part 556 petition does not cure the original violations of Sec. 30112(a) and we may still impose a civil penalty because of them. The only effect of a Part 556 grant is to excuse a manufacturer from notifying and remedying the noncompliance.

Please inform us whether Athey wishes to withdraw its Part 555 petition or whether it would like us to consider it further. Athey could continue to manufacture, but not sell or deliver, noncompliant street sweepers in the interim period. Were the petition granted, the vehicles could then legally be certified as exempted and sold in the United States. However, we would not anticipate a decision until sometime in November 1999. If you wish us to consider the petition further, please supply arguments why an exemption would be in the public interest and consistent with the objectives of motor vehicle safety. This information is required by 49 CFR 555.5, but was lacking in your petition.

In summary, because of Athey's apparent noncompliance with Standard No. 105, it must file a notification document with us (part 573) and follow that with the form it will use in notifying other persons (part 577). Regarding vehicles produced from March 1, 1999, until now, Athey may file, if it wishes, a request to be excused from the requirements to notify dealers and purchasers and to remedy the noncompliance on the grounds of inconsequentiality (part 556). Regarding future production, if Athey wishes further consideration of its previously-filed part 555 temporary exemption petition, it should notify us and supplement the petition with public interest and safety arguments.

Taylor Vinson may be reached at 202-366-5263 if you have further questions on this matter.

Sincerely,
Frank Seales, Jr.
Chief Counsel
NCC-20 ZTVinson:mar:7/30/99:62992;OCC 20393
cc: Ncc-01 Subj/Chron No interp

ID: 20398.drn

Ms. Sarah Swartzendruber
Law Clerk
Phelan, Tucker, Mullen, Walker
Tucker, Gelman, LLP
321 East Market
Iowa City, IA 52244

Dear Ms. Swartzendruber:

This responds to your request for an interpretation of a child care facility's responsibilities when it is considering purchasing a 15-person van to transport children. Our answer is provided below.

Your letter states that your firm's client operates a before- and after-school care program. The program is physically located at a school. The client would not use the van to transport children to or from school, and would use the van only "during summer vacation, when school is not in session." You ask us to determine whether the program constitutes a "school," and how we have defined "significant" use of a vehicle.

Some background information may be helpful. The National Highway Traffic Safety Administration ( NHTSA) is authorized to issue and enforce Federal motor vehicle safety standards (FMVSS) applicable to new motor vehicles. Our statute at 49 U.S.C. 30112 requires any person selling or leasing a new vehicle to sell or lease a vehicle that meets all applicable standards. Accordingly, persons selling or leasing a new "school bus" must sell or lease a vehicle that meets the safety standards applicable to school buses.

Our statute defines a "schoolbus" as any vehicle that is designed for carrying a driver and more than 10 passengers and which, NHTSA decides, is likely to be "used significantly" to transport "preprimary, primary, and secondary" students to or from school or related events. 49 U.S.C. 30125. By regulation, the capacity threshold for school buses corresponds to that of buses -- vehicles designed for carrying more than ten (10) persons. For example, a 15-person van that is likely to be used significantly to transport students is a "school bus."

Because our laws apply only to the manufacture and sale of new motor vehicles, we do not prohibit child care facilities from using their large vans to transport school children even when the vehicles do not meet Federal school bus safety standards. However, each State has the authority to set its own standards regarding the use of motor vehicles, including school buses, so you should also check Iowa law to see if there are regulations about how the client must transport school children.

Responding to your question whether the before- and after-school care program is a "school," NHTSA distinguishes between facilities that provide educational programs and those that are strictly custodial. We do not consider child care programs that are custodial in nature to be "schools." However, in recent interpretations (see the attached July 23, 1998 letter to Mr. Don Cote) we have stressed that it is the purpose for which the bus is used, not the identity of the purchaser, that determines whether a dealer must sell a school bus or may sell another type of bus. Thus, if a custodial center were purchasing the bus to use significantly to transport students to or from school or school-related events, a dealer knowing of this purpose is required to sell a school bus.

You also ask for a definition of "significant" use. Your letter stated that the client would use the van only during the summer, when school is not in session. If no "significant" to or from school transportation would be provided by the client, a dealer would not be required to sell a school bus. In a letter of May 20, 1999 to Mr. Dennis Seavey (copy enclosed), we stated that we consider transportation to or from school "on any two days during a week to be regular use and therefore 'significant.'"

In fully addressing the type of vehicle that should be used to transport children, your client should take the following into consideration. At a June 8, 1999, public meeting, the National Transportation Safety Board (NTSB) issued the attached abstract of a special investigative report on nonconforming buses. The NTSB issued the report after investigating in 1998 and 1999, four crashes in which 9 people were killed and 36 injured when riding in "nonconforming buses." NTSB defines "nonconforming bus" as a "bus that does not meet the FMVSSs specific to school buses." Most of the victims, including eight of the fatalities, were children.

In the abstract of its report, the NTSB issued several Safety Recommendations, including the following that was directed to child care providers such as the National Association of Child Care Professionals, the National Child Care Association, and Young Mens' and Young Women's Christian Associations:

Inform your members about the circumstances of the accidents discussed in this special investigation report and urge that they use school buses or buses having equivalent occupant protection to school buses to transport children.

In conclusion, we wish to emphasize that school buses are one of the safest forms of transportation in this country, and that we therefore strongly recommend that all buses that are used to transport school children be certified as meeting NHTSA's school bus safety standards. In addition, using 15-person vans that do not meet NHTSA's school bus standards to transport students could result in liability in the event of a crash.

I hope this information is helpful. For more information about the safety features of a school bus, I am enclosing NHTSA's publication: "School Bus Safety: Safe Passage for America's Children." I am also enclosing NHTSA's February 1999 "Guideline for the Safe Transportation of Pre-school Age Children in School Buses."

If you have any further questions about NHTSA's programs please feel free to contact Dorothy Nakama at this address or at (202) 366-2992. Information about NTSB's nonconforming bus report is available from the NTSB's Public Affairs Office at (202) 314-6100.

Sincerely,
Frank Seales, Jr.
Chief Counsel
Enclosures
ref:571.3#VSA
d.8/24/99