ID: aiam1392

Dear Mr. Nield: This is in reply to your letter of December 13, 1973, asking whethe glazing in the rear quarter windows of the Datsun model HLB-210 may, consistently with Motor Vehicle Safety Standard No. 205, be manufactured of AS 3 glazing material. This depends, as you point out, on whether this glazing is used 'at levels requisite for driving visibility' under American National Standards Institute Standard ANS Z26.1-1966, incorporated into Standard No. 205. You refer in your letter to section 1017(a) of the California Vehicle Code which states:; >>>Side windows to the rear of the driver and the rear windows not use for vision directly to the rear are not considered areas requisite for driving visibility.<<<; The locations where the use of AS 3 glazing is permitted are set fort on page 12 of ANS Z26. AS 3 glazing may be used, 'anywhere in a motor vehicle except in passenger car windshields and in the following locations at levels requisite for driving visibility....(2) *Passenger automobiles and taxicabs*. Glazing of *all* windows including rear window, *all* interior partitions, and *all* apertures created for window purpose. (emphasis added); The only exclusion from the broad prohibition against the use of AS glazing in passenger cars is 'at levels not requisite for driving visibility.' We do not agree with the California Code provision. We consider the word 'levels' in Standard 205 to mean vertical heights in relation to the driver's eyes. We, therefore, cannot concur in the application of the 'levels requisite for driving visibility' concept as it appears in Standard No. 205 to complete windows or other glazing areas of passenger cars.; With respect to the Datsun model in question, there is no evidence i your letter that the windows in question are not at a level requisite for driving visibility. In fact, they appear to include levels of a driver's normal eye point.; The NHTSA presently hopes to publish a revised notice of propose rulemaking regarding direct fields of view in the fall of 1974. Previous proposals regarding this subject were withdrawn by notice published March 7, 1973 (38 FR 6194).; Yours truly, Richard B. Dyson, Assistant Chief Counsel

ID: aiam5630

"Dear Mr. Ferreira: This responds to your FAX message to Mr. Jer Medlin of this agency, asking whether your 'master switch' on a transit bus must be illuminated pursuant to Standard No. 101, Controls and displays. Your master switch has four controls, 'engine stop,' 'run,' 'lights,' and 'park.' In a telephone conversation with Mr. Medlin, you explained that your 'run' control functions as an 'engine start' control, and your 'park' control functions as a 'clearance lamps systems' control. As explained below, Standard No. 101 specifies illumination for the 'engine stop' and 'park' controls, but not for the 'run' and 'light' controls. In addition, there are identification requirements for those controls. Your drawing of the master switch shows that the switch resembles a tuning knob on a radio. Like a knob, the switch can be turned to each of the above four positions, one position at a time. Because turning the master switch knob to each position activates the described function, we would consider each position to be a separate control. You write that the master switch will be placed on a 'driver's side control panel,' a location that subjects controls to Standard No. 101's illumination requirements. S5.3.1 of Standard No. 101 (referencing Tables 1 and 1(a) Identification and Illumination of Controls), specifies that if: a control is provided, is listed in column 1 of either Table 1 or 1(a), and is accompanied by the word 'yes' in the corresponding space in column 4, Illumination, of the table, the 'identification ... of any control' shall be capable of being illuminated whenever the headlights are activated. 'Engine stop' control The identification of the 'engine stop' control must be capable of being illuminated whenever the headlights are activated. This is because in Tables 1 and 1(a), the 'engine stop' control is specified in column 1, and accompanied by 'yes' in the corresponding space in column 4 of each table. 'Park' control Two issues are raised by your 'park' control. The first relates to Standard No. 101's requirements for identifying controls. Under the standard, the control that regulates the parking lights is the 'clearance lamps system' control, rather than the 'park' control. Since your control regulates the parking lights, it must be identified as 'Marker Lamps', 'MK Lps' or (as you propose) with the symbol specified in column 3 of Table 1. Labeling the control as 'park' could confuse some persons into thinking 'park' is a transmission park position. The second issue is the illumination requirement. The identification of the control must be capable of being illuminated whenever the headlights are activated. As noted above, your park control has to be identified as 'Marker Lamps' or 'MK Lps'. In Table 1, the control is specified in column 1, and accompanied by 'yes' in the corresponding space in column 4. Thus, the control must be illuminated. 'Run' control The same two issues discussed in our answer directly above, pertain to this control. First is Standard No. 101's requirements for identifying controls. Under the standard the control that will start the engine must be identified as 'engine start' (rather than 'run') as described in both Tables 1 and 1(a), when it is separate from the key locking system (as is yours). The control need not be illuminated. In both Tables 1 and 1(a), the 'engine start' control (which is the correct identification of the control) is specified in column 1, without a corresponding 'yes' for illumination in column 4 of either table. 'Lights' control The same two issues discussed above are relevant here. The illustration you enclosed with your letter shows that you use both the word 'Lights' and an identifying symbol to identify your Lights control. We are not sure that you are correctly using the symbol. The symbol you use is listed in Table 1 of Standard No. 101 as that for the master lighting switch. A master lighting switch regulates all exterior vehicle lights. If your 'lights' control only regulates headlamps and taillamps, and not all exterior vehicle lights, please designate the headlamps and taillamps as specified in column 3 of Table 1. The 'lights' control need not be illuminated. In both Tables 1 and 1(a), the 'lights' control is specified in column 2, without a corresponding 'yes' for illumination in column 4 of either table. I hope this information is helpful. If you need any further information, please contact Ms. Dorothy Nakama of my staff at (202) 366-2992. Our FAX number is (202) 366-3820. Sincerely, John Womack Acting Chief Counsel";

ID: aiam3533

Dear Mr. Tuerck: This responds to your letter asking whether your sample turn signal an hazard switch design complies with the labeling requirements of Federal Motor Vehicle Safety Standard No. 101-80, *Controls and Displays*.; By way of background information, I would point out that the agenc does not give advance approvals of vehicles or equipment. The National Traffic and Motor Vehicle Safety Act places the responsibility on the manufacturer to determine whether its vehicles or equipment comply with applicable requirements. A manufacturer then certifies that its vehicle or equipment comply with all applicable standards. The following interpretation only represents the agency's opinion based on the information provided in your letter.; Your letter states that the switch is used primarily on Class 7 an Class 8 trucks and truck tractors. We therefore assume that it would only be used on trucks with a GVWR of 10,000 pounds or more. We make that assumption because Standard No. 101-80 includes requirements for a vehicle's displays in addition to its controls if it has a GVWR of less than 10,000 pounds. As explained below, it is our opinion that the sample switch does comply with the labeling requirements of Standard No. 101-80.; The sample turn signal and hazard switch is designed to be clamped ont a vehicle's steering column to the left of the driver and looks something like a box. We assume that the box is to be installed so that the side of the box which has two pushbuttons on it, marked 'R' and 'L,' is on the left. Pressing the 'R' pushbutton, which is located toward the back, activates the right turn signal. Pressing the 'L' pushbutton, which is located toward the front, activates the left turn signal. Both buttons must be pushed simultaneously for the hazard warning signal. Most of the identification for the switch is located on top of the box. Just above the right turn pushbutton is a thick black arrow pointing to the right. Just above the left turn pushbutton is a thick black arrow pointing to the left. Above each pushbutton there is also a triangle outlined in black, i.e., the hazard warning symbol specified by Table 1 of Standard No. 101-80. Between those identifications is located a pushbutton, identified by the use of both words and symbols, which clears the turn signal or hazard warning signal. The top of the box also includes three jewel-type pilot indicators which indicate when the turn signals or hazard warning signal are activated and additional labeling explaining the method of operation for the hazard warning signal.; Section S5.2.1 of Standard No. 101-80 states in relevant part: >>>Vehicle controls shall be identified as follows: (a) Except as specified in S5.2.1(b), any hand-operated control liste in column 1 of Table 1 that has a symbol designated in column 3 shall be identified by that symbol. Such a control may, in addition, be identified by the word or abbreviation shown in column 2. Any such control for which no symbol is shown in Table 1 shall be identified by the word or abbreviation shown in column 2. Additional words or symbols may be used at the manufacturer's discretion for the purpose of clarity. The identification shall be placed on or adjacent to the control. The identification shall, under the conditions of S6, be visible to the driver and , except as provided in S5.2.1.1 and S5.2.1.2, appear to the driver perceptually upright.<<<; Both the turn signal and the hazard warning signal are listed in colum 1 of Table 1 and have symbols designated in Column 3. Therefore, Standard No. 101-80 requires that those controls be identified by the designated symbols.; The primary issue raised by your design is whether the turn signa control symbol specified by Table 1, a pair of arrows, may be split where there are independent controls for the left and right turn signals. As explained below, it is our opinion that the pair of arrows may be split in that particular circumstance.; The symbol for the turn signal control is the same as the symbo specified by Table 2 for the turn signal display. A footnote to Table 2 explains that while the pair of arrows is a single symbol, the two arrows will be considered separate symbols when the indicators for the left and right turn operate independently and may be spaced accordingly.; Table 1 does not include that footnote for the turn signal control. turn signal control would normally be expected to consist of one button or lever and would be required to be identified by the pair of arrows as one symbol. It is our interpretation, however, that the two arrows may be considered separate symbols where there are independent controls for the left and right turn signals, as in your sample switch. Separating the two arrows in such an instance has the advantage of indicating the direction of the signal activated by each pushbutton.; Table 2 also includes a footnote that indicates that the framed area of the turn signal display symbol may be filled in. While Table 1 has a footnote that indicates that the framed areas of several symbols may be filled in, the turn signal control is not among those listed. It is our interpretation, however, in light of the footnote in Table 2, that a manufacturer may fill in the framed areas of the turn signal symbol whether it is used for control or a display.; Thus, the symbols used on the sample switch for the turn signa controls are those specified by Standard No. 101-80.; Sincerely, Frank Berndt, Chief Counsel

ID: 9355

Ms. Jane L. Dawson
Specifications Engineer
Thomas Built Buses, Inc.
Post Office Box 2450
1408 Courtesy Road
High Point, NC 27261

Dear Ms Dawson:

This responds to your letter to Walter Myers of this office in which you posed two questions regarding interpretation of certain provisions of Federal Motor Vehicle Safety Standard (FMVSS) 217, Bus Window Retention and Release.

Your first question related to the definition of "daylight opening" found in the final rule amending FMVSS 217, dated November 2, 1992 (57 FR 49413) (hereinafter Final Rule). Specifically, you asked what constitutes an obstruction and how close does it have to be to the exit to be considered an obstruction.

The term "daylight opening" is defined in the Final Rule as "the maximum unobstructed opening of an emergency exit when viewed from a direction perpendicular to the plane of the opening." This refers to the total area of the opening, whether the door or window is open or closed. An obstruction in this context would include any obstacle or object that would block, obscure, or interfere with in any way that opening or any access thereto, as viewed from the middle aisle of the bus. For example, the seatback of a nearby seat that protrudes into the area perpendicular to the plane of the opening would constitute such an obstruction.

In your second question you referred to the current provisions of S5.2.3.1(b), FMVSS 217, which provides that a left-side emergency door must be located in the rear half of the bus passenger compartment. You then asked whether that requirement was changed in the Final Rule. The answer is yes.

S5.2.3.1, as amended in the Final Rule, provides manufacturers two options for the provision of school bus emergency exits, S5.2.3.1(a) (Option A) and S5.2.3.1(b) (Option B). Option A requires a rear emergency door and, in the sequence of choices for providing the additional emergency exit area, the first specifies a left side door that is required by S5.2.3.2(a)(2) to be located at the midpoint of the bus. Option B requires a left-side emergency door and a pushout rear window, but does not designate a specific location for them. Thus, the

locations of exits other than the left side door specified in S5.2.3.1(a)(2)(i) are left to the various design options of the manufacturers and their customers.

I hope this information will be of assistance to you. Should you have any further questions or seek additional information, please feel free to contact Walter Myers of my staff at this address or at (202) 366-2992.

Sincerely,

John Womack Acting Chief counsel

ref:217 d:4/1/94

ID: nht74-5.35

DATE: 04/16/74

FROM: AUTHOR UNAVAILABLE; Richard B. Dyson; NHTSA

TO: ITT Semiconductors

COPYEE: R. HITCHCOCK; MR. HERLIHY

TITLE: FMVSS INTERPRETATION

TEXT: This is in response to your March 25, 1974, question whether the belt warning system in 1974 or any future model year passenger car is required to activate if a passenger sits on a pre-buckeled belt in a passenger car whose engine is operating and the driver subsequently places the transmission gear selector in a forward position.

In 1974 and 1975 passenger car models, the (nonsequential) warning system would be required to activate in this situation only if the passenger weighed at least 47.3 pounds and the belt was not extended at least four inches from its stowed position, in a warning system based on belt extension.

It has been proposed that this requirement be extended one year through the 1976 models and that a new sequential belt warning system may be used at the front seating positions after September 1, 1976.

The requirements for the new proposed system are set out in the document you reference, Docket No. 74-14; Notice 1, a copy of which is enclosed. It would require that the seat belt be operated after the passenger has been seated.

ID: aiam3531

Dear Mr. Lawler: This responds to your recent letter requesting an interpretatio concerning paragraph S4.3(c)(1) of Safety Standard No. 209, *Seat Belt Assemblies*. You ask for clarification of the cases in which a 5,000-pound attachment bolt may be used in lieu of a 9,000-pound bolt.; Paragraph S4.3(c)(1) of Standard No. 209 specifies that attachmen bolts used to secure the pelvic restraint of a seat belt assembly to a motor vehicle shall withstand a force of 9,000 pounds, except that 'attachment bolts of a seat belt assembly designed for installation in specific models of motor vehicles in which the ends of two or more seat belt assemblies cannot be attached to the vehicle by a single bolt shall have a breaking strength of not less than 5,000 pounds.' The intent of the requirement in S4.3(c)(1) is to assure that inadequate attachment bolts will not be used to attach seat belt assemblies to a vehicle. A 5,000- pound bolt may be used only if the belt assembly is designed for use in specific models of vehicles in which only one end of a belt assembly can be attached by a single bolt.; In answer to your question, the agency does not 'have in mind' certai brands or models of vehicles which would qualify under this exception, and the exception is not limited to single-seat vehicles. Further, the requirement does not mean that a seat belt assembly that can be used in more than one application must be installed with a 9,000-pound bolt. If a particular assembly is designed for use in several different models in all of which only one end of the belt assembly can be attached by a single bolt, then a 5,000- pound bolt is sufficient. The distinction is that an aftermarket belt for universal application must be accompanied with a 9,000- pound bolt, because in some vehicle models it would be possible to mount two ends of seat belt assemblies with a single bolt.; You should note that paragraph S4.1(k) of Standard No. 209 requires th manufacturer of seat belt assemblies for after-market use to furnish an instruction sheet stating whether the assembly is for universal installation or for installation only in specifically stated motor vehicles. If you provide 5,000-pound bolts for any of your assemblies, the instruction sheet required by S4.1(k) should specify that the assemblies are to be used only in the vehicle models you list.; I hope this has answered all your questions. Sincerely, Frank Berndt, Chief Counsel

ID: Anuvu_002304

Mr. Ed Ring
Director Strategic Planning
Anuvu Incorporated
3980 Research Drive
Sacramento, CA 95838

Dear Mr. Ring:

This responds to your e-mail inquiry and telephone discussion with Mr. Chris Calamita of my staff, regarding Federal requirements that could affect the plans of your company (Anuvu) to install fuel cell/electric hybrid systems (fuel cell systems) in new, fully-certified motor vehicles, and then to sell those altered vehicles to consumers.

You stated that installation of the fuel cell system would necessitate the removal of the vehicles engine, transmission, and fuel tank. You explained that your company would then install a fuel cell stack, electric motor, hydrogen storage tank, and battery pack. You further explained that the alteration would include installing a regenerative braking system, which would be attached to the drive train, and an electric motor that would be used to power the hydraulic brake system. You noted that no other alterations would be made to the brake system.

Motor Vehicle Certification

A manufacturer of motor vehicles must certify that its vehicles comply with all applicable Federal motor vehicle safety standards (FMVSS) (49 U.S.C. 30115, Certification of compliance). If any person alters a certified motor vehicle, prior to its first sale for purposes other than resale, then that person is deemed an "alterer," a type of manufacturer. As an alterer, that person must certify that the vehicle, as altered, continues to comply with all of the safety standards affected by the alteration. See 49 CFR Part 567, Certification (enclosed).

Since Anuvu plans to install the fuel cell systems in new vehicles, i.e., ones that have not yet been sold for purposes other than resale, Anuvu would be an alterer. As such, Avunu would be required to certify that the altered vehicles continue to comply with the Federal safety standards affected by the addition of the fuel cell system. The certification requirements for alterers can be found in 567.7. Additionally, at the point of first retail sale, the vehicle must comply with all standards applicable to the vehicle as altered (49 U.S.C. 30112(a)) and be certified as such.

Further, 49 U.S.C. 30122 prohibits manufacturers, distributors, dealers, or motor vehicle repair businesses from knowingly making inoperative any part of a device or element of design installed on or in a new or used motor vehicle in compliance with an applicable FMVSS. Although Anuvu intends to remove fuel systems certified as complying with FMVSS No. 301, it is likely that this "make inoperative" provision would not be violated with respect to that standard.

This is because FMVSS No. 301 applies to vehicles that are equipped with fuel systems that use a fuel with a boiling point above zero degrees Celsius. The standard does not require vehicles to be equipped with such a fuel system. The vehicles as altered by Anuvu would be equipped with fuel systems that rely on hydrogen, a fuel with a boiling point below zero degrees Celsius. Since FMVSS No. 301 would not apply to the vehicles as altered, the make inoperative provision would not be violated by the removal of the FMVSS No. 301 fuel system. However, the make inoperative provision would prohibit Anuvu from rendering inoperative any device or element of design installed in compliance with any FMVSS that applied to the vehicle as altered, and subsequent to alteration (i.e., technology upgrades, retrofits).

Applicable FMVSSs

In order to determine how the installation of your fuel cell system would affect vehicle compliance with applicable Federal safety standards, you should carefully review each standard in 49 CFR Part 571. However, there are certain standards (discussed below) of which you should be particularly aware.

First, I would draw your attention to FMVSS No. 305, Electric-powered vehicles: electrolyte spillage and electric shock protection. This standard would apply to your vehicle if it used more than 48 nominal volts of electricity as propulsion power, had an attainable speed in 1.6 km on a paved level surface of more than 40 km/h, and had a gross vehicle weight rating of 4536 kilograms or less. FMVSS No. 305 specifies the requirements for limitation of electrolyte spillage, retention of propulsion batteries during a crash, and electrical isolation of the chassis from the high-voltage system.

Section 3 of FMVSS No. 135, Passenger car brake system, defines "electric vehicle" as a motor vehicle that is powered by an electric motor drawing current from rechargeable batteries or a fuel cell. Therefore, the addition of the fuel cell system would also change your vehicles classification to an electric vehicle for the purposes of FMVSS No. 135. Accordingly, if FMVSS No. 135 continued to apply to your vehicle, the vehicle would be required to comply with the brake performance requirements applicable to electric vehicles.

Although there is not currently any FMVSS applicable to hydrogen fuel systems or hydrogen fuel tanks, any application of fuel cell technologies to motor vehicles should include reasonable precautions to ensure the safety of the motoring public. In the absence of Federal regulations, Anuvu should consult voluntary standards and recommended practices developed by groups such as the Society of Automotive Engineers, American National Standards Institute, and International Standards Organization.

I note that in your correspondence with Mr. Calamita, you discussed ways in which you have considered the safety of the converted vehicles. I strongly encourage you to ensure that your company takes appropriate and sufficient precautions concerning your companys current and projected applications of fuel cell technologies, and that your company will follow, and where necessary establish, appropriate internal evaluation and design protocols to address every potential safety concern.

Additionally as an alterer, your company would be subject to the requirements of Chapter 301 concerning the recall and remedy of safety related defects. If our agency or Anuvu were to determine that an altered vehicle contained a safety-related defect, Anuvu would be responsible for notifying purchasers of the defect and remedying the problem free of charge (49 U.S.C. 30118-30121).

Exemption from an FMVSS

In your telephone conversation with Mr. Calamita, you inquired into the possibility of applying for an exemption from the FMVSSs impacted by the alteration. 49 CFR Part 555, Temporary Exemption from Motor Vehicle Safety and Bumper Standards, establishes requirements for the temporary exemption of certain motor vehicles from compliance with one or more FMVSS in accordance with 49 U.S.C. 30113. Under 555.6(c), a manufacturer may ask for an exemption of up to two years, for a maximum of 2,500 vehicles per year, on the basis that an exemption would make the development of a low-emission vehicle easier and would not unreasonably lower the safety of the vehicle. See 49 CFR Part 555 (enclosed) for the information required to demonstrate that safety would not be unreasonably degraded and the specifications regarding application for an exemption.

Please note that Part 555 requires the agency to publish a notice in the Federal Register seeking public comment on each exemption petition before a decision can be made on such a request, and then publish a second notice either granting or denying the petition. This process normally takes three to four months from the date of submittal.

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

Sincerely,

Jacqueline Glassman
Chief Counsel

Enclosures
ref:567
d.5/20/04

ID: nht75-1.18

DATE: 12/31/75

FROM: AUTHOR UNAVAILABLE; F. Berndt; NHTSA

TO: Motor Vehicle Manufacturers Association

TITLE: FMVSS INTERPRETATION

TEXT: This is in further response to your letter of November 12, 1975, asking whether this agency considers Standard 105-75 on hydraulic braking systems to be preemptive of State regulations concerning brake wear warning devices. You asked the question in light of the proposed uniform State regulation requiring such devices recently adopted by the Vehicle Equipment Safety Commission.

There are presently no requirements in the Federal motor vehicle safety standards dealing directly with the subject of brake wear indicators or warning devices. The question, therefore, becomes whether the Federal safety standards on braking performance were intended generally to cover this aspect of performance, analogously to the situation in which Standard 108 was held to be preemptive in Motorcycle Industry Council v. Younger, No. CIV S74-126 (E. D. Cal. 1974). The guiding rule, as set forth by the U. S. Supreme Court in Florida Lime & Avocado Growers v. Paul, 373 U. S. 132, 141-142 (1963), is "whether both regulations can be enforced without impairing federal superintendence of the field." Under the accepted doctrines as set forth in cases such as Thorpe v. Housing Authority of Durham, 393 U. S. 268 (1969), and Chrysler v. Tofany, 419 F.2d 499, 511-12 (2d Cir. 1969), the interpretation of this question by the administering agency is "of controlling weight unless it is plainly erroneous or inconsistent with the regulation."

The NHTSA has determined that the issuing of requirements for brake wear indicators by the States does not conflict with or otherwise impair our present regulation of braking systems, and that brake wear indicators are not within the intended scope of the present Federal safety standards. We therefore conclude that the existing standards are not preemptive of such State regulations. You should be aware that the agency is actively proceeding with rulemaking development work in this area, and may within the next year issue requirements that would alter these legal relationships.

SINCERELY,

MOTOR VEHICLE MANUFACTURERS ASSOCIATION

November 12, 1975

Dr. James B. Gregory, Administrator National Highway Traffic Safety Administration

Re: Request for Statement of Scope of Braking Standards; Proposed Uniform State Brake Component Wear Warning Regulation

The Motor Vehicle Manufacturers Association of the United States, Inc. (MVMA) requests a statement by the National Highway Traffic Safety Administration of the preemptive effect of Federal Motor Vehicle Safety Standards 105, 105-75, and 121, in light of Section 103(d) of the National Traffic and Motor Vehicle Safety Act of 1966. MVMA believes that those standards preempt any state statute or regulation implementing the proposed uniform state regulation requiring brake wear warning devices recently adopted by the Vehicle Equipment Safety Commission. Briefly, that regulation would require that manufacturers of all highway use vehicles except motorcycles, trailers and semi-trailers provide a "visible, audible or tactile signal" when brake friction materials are worn to the discard point. (A copy of the VESC regulation is appended to this letter. The copy is of the draft prepared by the VESC for its annual meeting on July 30, 1975, which was adopted without substantial amendment on that date.)

Forty-two states and the District of Columbia are now members of the VESC. Under the terms of the Vehicle Equipment Safety Compact, "each party state obligates itself to give due consideration to any and all rules, regulations and codes issued by the Commission and hereby declares its policy and intent to be the promotion of uniformity in the laws of the several party states relating to equipment." A copy of the Vehicle Equipment Safety Compact is also appended.

MVMA includes in its membership manufacturers of more than 99% of the motor vehicles made in the United States. Our members are vitally affected by both Federal and state regulation of motor vehicles.

MVMA believes that state legislation or regulation incorporating this proposed brake wear warning device requirement is preempted by presently effective Federal motor vehicle safety standards which govern brake performance of affected vehicles; i.e., FMVSS 105 and 121. We urge the Administrator to publish a clear statement in the Federal Register, addressing this preemption issue and asserting that under the authority of Section 103(d) of the Safety Act, such legislation or regulation is preempted by these standards. MVMA believes that the issue raised here is as important as the question raised by the Japan Automobile Manufacturers Association on state enforcement policies, which occasioned the Administration to publish a strong preemptive statement in the Federal Register on June 2, 1971 (36 FR 10744).

Summary of Legal Issues

We believe that a brief review of the treatment given to the preemption question in the National Traffic and Motor Vehicle Safety Act is appropriate.

Section 103(d) of the Act (15 USCA Section 1392(d)) provides:

"(d) Whenever a Federal motor vehicle safety standard established under this title is in effect, no State or political subdivision of a State shall have any authority either to establish, or to continue in effect, with respect to any motor vehicle or item of motor vehicle equipment any safety standard applicable to the same aspect of performance of such vehicle or item of equipment which is not identical to the Federal Standard. Nothing in this section shall be construed to prevent the Federal Government or the government of any State or political subdivision thereof from establishing a safety requirement applicable to motor vehicles or motor vehicle equipment procured for its own use if such requirement imposes a higher standard of performance than that required to comply with the otherwise applicable Federal standard."

The express statutory inclusion of such a preemption provision is relatively unusual. The statute does not broadly permit states to establish or enforce identical standards; it prohibits standards which are not identical to Federal standards. Congress made plain the necessity for Federal preemption and the broad reach the preemption provision was to have. For example, the Senate Report (S. Rep. No. 1301, 89th Cong., 2d Sess., 1966) stressed the paramount Federal Role (page 4):

"Out of the committee's hearings, there emerged a clear outline of the basic needs to be served by Federal legislation:

"1. The promotion of motor vehicle safety through voluntary standards has largely failed. The unconditional imposition of mandatory standards at the earliest practicable date is the only course commensurate with the highway death and injury toll.

"2. While the contribution of the several States to automobile safety has been significant, and justifies securing to the States a consultative role in the setting of standards, the primary responsibility for regulating the national automotive manufacturing industry must fall squarely upon the Federal Government." [Emphasis added]

The Senate Report also explained why preemption was needed to insure uniformity (page 12):

"The centralized, mass production, high volume character of the motor vehicle manufacturing industry in the United States requires that motor vehicle safety standards be not only strong and adequately enforced, but that they be uniform throughout the country. At the same time, the committee believes that the States should be free to adopt standards identical to the Federal standards, which apply only to the first sale of a new vehicle, so that the States may play a significant role in the vehicle safety field by applying and enforcing standards over the life of the car. Accordingly, State standards are preempted only if they differ from Federal standards applicable to the particular aspect of the vehicle of item of vehicle equipment (sec. 104)." [Emphasis added.]

The House Report (H.R. Rep. No. 1776, 89th Cong., 2d Sess., 1966) makes a similar statement. See page 11 where the House Report emphasizes the need for national solution of this "nationwide problem", and see also the emphasis on uniformity at page 17 -- "this preemption subsection is intended to result in uniformity of standards so that the public as well as industry will be guided by one set of criteria rather than by a multiplicity of diverse standards."

In view of this legislative history of Section 103(d), it is clear that the comprehensive attention which the National Highway Traffic Safety Administration has given to brake systems and components in the formulation of Standards 105 and 121 preempts the regulation which the Vehicle Equipment Safety Commission now proposes for legislative or regulatory adoption by member states.

The currently effective Federal standard on hydraulic brake systems, FMVSS No. 105 (49 CFR S 571.105), states in its "Purpose and scope" section that it specifies requirements for ". . . brake systems intended to ensure adequate braking performance under normal and emergency conditions." The National Highway Traffic Safety Administration has taken the position that the purpose and scope provision of a Federal standard defines the aspect of performance covered -- see 35 Fed. Reg. 18000, November 24, 1970. The aspect of performance thus stated in FMVSS No. 105 necessarily embraces what the VESC now proposes as State law or regulation. Although FMVSS 105 does not deal in specific detail with all of the components of a hydraulic brake system, this system approach follows the Congressional expectation of how the Federal standards should operate. * Moreover, in addition to its system approach "to ensure adequate braking performance", FMVSS No. 105 specifically addresses failure of the system and requires a system effectiveness warning indicator light (@ 4.2.2). That requirement alone leaves no room for State adoption of a different warning requirement such as the VESC now proposes.

* For example, the Senate Report states at page 6:

"Unlike the General Services Administration's procurement standards, which are primarily design specifications, both the interim standards and the new and revised standards are expected to be performance standards, specifying the required minimum safe performance of vehicles but not the manner in which the manufacturer is to achieve the specified performance (sec. 101(b)). Manufacturers and parts suppliers will thus be free to compete in developing and selecting devices and structures that can meet or surpass the performance standard.

"The Secretary would thus be concerned with the measurable performance of a braking system, but not its design details. Such standards will be analogous to a building code which specifies the minimum loadcarrying characteristics of the structural members of a building wall, but leaves the builder free to choose his own materials and design. Such safe performance standards are thus not intended or likely to stifle innovation in automotive design."

FMVSS No. 105-75 becomes effective on January 1, 1976. This standard has been under intense consideration by the Administration and by industry since 1968. In the course of that consideration the NHTSA considered and rejected matters which are pertinent here. For example, the Administration had proposed that brakes be installed so that the lining thickness of drum brake shoes and brake pads could be visually inspected without removing the drums or pads. Subsequently the Administration decided to abandon that proposal (37 Fed. Reg. 17972, September 2, 1972). The Administration has also stated that FMVSS No. 105 would provide consumers "with braking systems that have been optimized with respect to safety, performance, and cost," (38 Fed. Reg. 3047, February 1, 1973).

For any state now to enact an additional warning requirement would fly in the teeth of FMVSS No. 105-75. Such action would make a mockery of the uniformity which Congress said was necessary in adopting the preemption provision of the National Safety Act.

Also relevant is FMVSS No. 121, Air Brake Systems (49 CFR S 571.121). This standard "establishes performance and equipment requirements for braking systems on vehicles equipped with air brake systems." Its stated purpose "is to insure safe braking performance under normal and emergency conditions." Standard 121 clearly is a comprehensive set of requirements encompassing every aspect of performance of air brake systems. Section 5.1.4, Section 5.1.5, and Section 5.1.6 provide requirements for gauges and warning signals. It would be anomalous indeed if various states were now permitted to require additional warning devices to be added to the system.

General Motors Corporation, a member of MVMA, has informed MVMA of a determination of preemption that was made on May 2, 1975, by Mr. James Schultz, then Chief Counsel of the NHTSA, in a letter to Mr. Frazer F. Hilder, General Counsel of General Motors Corporation. General Motors, in its letter of March 21, 1975, questioned the supplemental air brake performance requirements of the Massachusetts and New Jersey Departments of Public Utilities and indicated that those requirements were not identical to FMVSS No. 121 requirements.

Briefly, the Massachusetts statute and regulations required that all braking systems be constructed and designed to permit release by the operator from the normal operating position. Although FMVSS No. 121 requires the parking brake system to be operable after failure of both the service and emergency brake systems (@ 5.7.2.2), it does not expressly address the issue of how release of the parking brake should be made.

The New Jersey "autobus" regulation required an automatic emergency brake system as contrasted to the optional automatic or modulated system permitted in S5.7 of FMVSS No. 121. In addition, the New Jersey stopping distances for service and emergency brakes were not identical to the requirements of FMVSS No. 121.

In his May 2, 1975 answer to General Motors' request for a determination of preemption, Mr. Schultz stated in part as follows:

"Standard No. 121 includes provisions relating to truck and bus brake performance, including requirements for stopping distances. A more restrictive state brake requirement than that specified in Standard 121 is voided by @103(d) since the Federal Standard is intended to cover all aspects of brake performance. [Emphasis supplied.]"

In the course of extensive rulemaking for the development of Standards 105 and 121, the NHTSA has made its intention clear that those standards cover every aspect of braking performance on the vehicles to which they apply. In view of that expressed intention, a recent decision of the United States District Court for the Eastern District of California is germane. The case is Motorcycle Industry Council, Inc. et al v. Younger, et al No. CIV. S74-126, decided September 23, 1974. The Court reviewed a California statute requiring that motorcycles be wired so that headlamps would be lit whenever engines were running. The Court held that the statute related to the same "aspect of performance" as does FMVSS 108 and therefore was preempted.

In your letter of November 8, 1973 to Mr. W. Pudinski of the Department of California Highway Patrol concerning the preemptive effect of FMVSS No. 108 upon that California statute you stated as follows:

"The implication of the California opinion is that any mode of design or performance that is not expressly dealt with in the Federal standard is open to regulation by the states. Such a position is impractical, where the Agency's intent is to have a comprehensive, uniform regulation in a given area . . . . Congress clearly intended the NHTSA to establish a single set of uniform standards to which manufacturers must comply, and that intent would tend to be defeated by the position taken in the California opinion. Federal regulation has a negative as well as a positive aspect; in determining that there should be certain requirements in an area, we also are deciding against imposing others. The only way to effectuate such a decision is to declare, as we have done here, that our regulation is intended to be exclusive, and to describe as necessary its outer limits." [Emphasis supplied.]

In light of the legislative history, and the administrative and judicial interpretations of Section 103(d) of the Safety Act, Standards 105 and 121 appear clearly to be comprehensive and exclusive requirements covering all aspects of hydraulic and air brake system performance. The omission from those standards of an express requirement for an audible or visual wear signalling device does not permit a State to impose such a requirement.

MVMA urges that the NHTSA promptly publish a statement that state adoption and enforcement of the VESC's brake wear warning regulation is preempted by Federal standards.

We appreciate your consideration of this request.

Thomas H. Hanna

CC: RICHARD B. DYSON; FRANK A. BERNDT

ID: 86-4.10

TYPE: INTERPRETATION-NHTSA

DATE: 07/09/86

FROM: AUTHOR UNAVAILABLE; Erika Z. Jones; NHTSA

TO: Rolf Seiferheld

TITLE: FMVSS INTERPRETATION

TEXT:

Service & Technical Bitter Automobile of America, Inc. 401 Willowbrook Lane West Chester, PA 19380

Dear Mr. Seiferheld:

This responds to your letter asking about 49 CFR Part 581, Bumper Standard. We apologize for the delay in our response. You stated that you are considering integrating fog-taillight assemblies in the rear bumper of a car and asked about relevant requirements. You noted in your letter that section S4.1.3 of Federal Motor Vehicle Safety Standard No. 108 (49 CFR 571.108) states that "(n)o additional lamp, reflective device, or other motor vehicle equipment shall be installed that impairs the effectiveness of lighting equipment required by this standard." You stated that this paragraph seems to be relevant but that it is unclear to you.

Both Part 581, Bumper Standard, and Safety Standard No. 108, Lamps, Reflective Devices( and Associated Equipment, are relevant to the location of fog-taillamp assemblies in the rear bumper. Fog lamps are lighting devices that are not covered by Standard No. 108. Therefore, two questions must be asked: are they permissible, and if so, may they be combined with items of lighting equipment required by Standard No. 108. Under section S4.1.3, quoted above, fog lamps are permissible provided that they do not impair the effectiveness of the lighting equipment that the standard requires. In this instance, the question cannot be answered without reference to whether its combination with the taillamp is permitted, for from the photo and drawing submitted, both appear combined in a single housing incorporating, we assume, one filament for each function. Both lamps are "position lamps", indicating the presence of the vehicle in the roadway ahead to a driver who is following behind. The fog lamp is intended to be activated under extreme conditions of reduced visibility, and hence, would appear to increase the effectiveness of the taillamp rather than impair it. Section S4.4 of Standard No. 108 prohibits combining taillamps only with clearance lamps (not required lighting equipment for passenger cars), and thus combining the taillamp and fog lamp functions are permissible. Section S4.3.1.1 of the standard specifies, among other things, that no part of the vehicle may prevent a taillamp from meeting its photometric output at specified test points. Further, a taillamp located in the bumper must also meet the visibility requirements of SAE Standard J585e Tail Lamps (Rear Position Lamps), September 1977, incorporated by reference in Standard No. 108. Pursuant to Paragraph 4 of J585e taillamps must be visible through a horizontal angle from 45 degrees to the left to 15 degrees to the right; to be considered visible, the lamp must provide an unobstructed projected illuminated area of outer lens surface (excluding reflex), not less than 2 square inches measured at 45 degrees to the longitudinal axis of the vehicle.

Finally, Part 581 Bumper Standard specifies requirements for the impact resistance of vehicles in low speed front and rear collisions. Vehicles must be capable of meeting certain damage criteria, following specified test impacts. Among other things, lamps must be free of cracks and comply with applicable visibility requirements of section S4.3.1.1 of Standard No. 108 following the impacts.

I hope this information is helpful.

Sincerely,

Erika Z. Jones Chief Counsel

November 18, 1985

Chief Counsel Jeff Miller National Highway Traffic Safety Administration 400 7th St., Southwest NASSIF Bld., Rm. #5219 Washington, D.C. 20590

RE: CFR 49, PART 581 BUMPER STANDARD

Dear Mr. Miller:

This is an Informal inquiry concerning the above referenced subject. Bitter Automobile of America, Inc. is the national importer of the Bitter SC automobile.

This Inquiry is in regard to the configuration of the rear bumper assembly of our automobile. In the past we have had a full face bumper bar without any light assemblies incorporated. However, I have been asked by Bitter K.G. GmbH Engineering staff what the regulations are of incorporating fog-taillight assemblies in the bumper; e.g. integrated into the rear bumper (see attached photograph and drawing). In consulting the Motor Vehicle Standard, No. 108, Part 571; S 108-7 , S 4.1.3, it states:

"No additional lamp reflective device or other motor vehicle equipment shall be installed that impairs the effectiveness of lighting equipment required by this standard."

This paragraph seems to relate to what we are contemplating, but is not clear to me. I kindly ask if the above could be feasible to change to a new style bumper.

I hope to hear from you soon and thank you for your time.

Sincerely,

Rolf Seiferheld Service & Technical

Enclosures

RS/red

ID: nht75-3.49

DATE: 05/27/75

FROM: AUTHOR UNAVAILABLE; J. C. Schultz; NHTSA

TO: Truck Trailer Manufacturers Association

TITLE: FMVSS INTERPRETATION

TEXT: This responds to the Truck Trailer Manufacturers Association March 28, 1975, request that the National Highway Traffic Safety Administration (NHTSA) review its position that building a trailer from new materials in combination with the running rear of an existing trailer constitutes the manufacture of a new vehicle subject to applicable safety standards. You also request confirmation that modification of the barrel of a tank trailer to replace compartments or to add to its volume does not constitute manufacture of a new vehicle.

NHTSA has already reconsidered its interpretation of what constitutes the manufacture of a new truck in cases where components from an existing vehicle are used. Based on the high value of the drive train components found in powered vehicles, NHTSA has proposed an amendment of Part 571 that would supplant its earlier interpretation that, to constitute repair, the chassis of the existing vehicle must as a minimum be used in the new vehicle. The proposed amendment would establish that, in the assembly of a truck, a new vehicle is manufactured for purposes of compliance with and certification to applicable safety standards, unless the engine, transmission, and rear drive axles (as a minimum) of the rebuilt vehicle are not new, and at least two of these components were taken from an existing vehicle whose identify is continued in the rebuilt vehicle with respect to model year, vehicle identification number, and any other documentation incident to the vehicle's remanufacture and registration.

Our interpretation of what constitutes manufacture of a new trailer (when use of components from an existing vehicle is involved) parallels our present interpretation of truck rebuilding in this area. We regret any confusion in our use of the term "chassis", but we have made clear that the running gear and main frame of an existing vehicle, must, as a minimum, be used in the rebuilding of a vehicle to be considered a repair. I enclose copies of two letters which establish this point.

NHTSA does not view the manufacture of trucks and trailers as sufficiently similar to justify attempting to apply our newly-proposed position on truck rebuilding to trailer manufacture. The primary consideration of extremely high value of drive train components found in powered vehicles is not applicable to trailer manufacture. NHTSA also concludes that the economic considerations which discourage avoidance of Standard No. 121, Air brake systems, in truck manufacture do not operate in trailer manufacture.

In regard to tank trailer modifications where the tank serves the purpose of and replaces the frame rails, we would not consider replacement of compartments in the tank to be manufacture of a new vehicle. Similarly, the addition of volume in response to the new weight limits would not constitute manufacture of a new vehicle.

SINCERELY,

Truck Trailer Manufacturers Association

March 28, 1975

Dr. James B. Gregory Administrator National Highway Traffic Safety Administration Department of Transportation

Subject: Petition for Reconsideration of Applicability of Motor Vehicle Safety Standards through Interpretive Letters

(Info copies to: Chief Legal Officer, NHTSA - Docket 49 Part 571)

Reference is made to the letter of interpretation by Mr. Richard B. Dyson, Acting Chief Counsel, NHTSA, to Robert S. Podlewski of Diamond Reo Trucks, Inc., dated October 7, 1974, NHTSA file No. 40-30(TWH) concerning the use of "glider kits" and to subsequent related actions now understood to be under advisement and study by the staff of the Office of Chief Legal Counsel, NHTSA.

The Truck Trailer Manufacturers Association (TTMA) represent approximately 200 truck trailer and component suppliers who produce more than 90% of the truck trailers built in the United States. Some of our member companies also engage in repairing damaged vehicles and others are engaged in furnishing vehicle components to those organizations that are involved in vehicle repairing activities.

The membership of this Association is concerned over the interpretation understood from the above referenced letter as are some truck manufacturers.

Our membership greatly appreciates cost effectiveness activities. The repairing of a customers' damaged truck trailer is understandably a consumer's cost effectiveness program especially during these trying economic times.

There are many cases where truck trailer bodies, frames or trailer tanks are unserviceable, and, byu repairing (oftentimes including the replacement of damaged or unserviceable assembly or sub-assembly components a most proper and necessary cost effectiveness vehicle repairing program can be and should be accomplished.

In addition, there are cases where truck trailer running gears such as axles, suspensions, and/or frames and stub frames are perfectly safe, serviceable, and suitable for continued road use. Our membership considers the disposal of such serviceable items to be a monetary loss and a national economic waste of durable goods. This waste would not occur except for interpretations of certain Motor Vehicle Safety Standards.

When a customer-owned trailer is unfortunately involved in an accident and that vehicle owner or his insurance company desires to save the majority of new vehicle replacement costs by repairing that old vehicle for that owner by replacing or installing a new or used body structure, thereon, we do not understand how that repair job can be classified to be the manufacture of a new vehicle for Safety Standards Application purposes.

Accordingly, this Association petitions and requests that the decision resulting from the process whereby the National Highway Traffic Safety Administration reconsiders the issues involved in the referenced Diamond Reo -- International Harvester, et al question involving the subject of truck repair versus new vehicle manufacturing, as related to unserviceable used vehicles, that the decision be couched in such language that the interpretation can be directly applied to truck trailers which are constructed of the same or similar types of components as are found in trucks.

Related to the above, it should be noted that auxiliary driving engines have been installed, from time to time, on truck trailers to furnish auxiliary driving power when it was found desirable to enhance the combination vehicles' hill climbing ability or for other reasons.

In arriving at the Administration's re-evaluated interpretation concerned, we should like to advise that the "frame" of a vehicle is not synonymous with "chassis". The "chassis" is generally understood to mean the basic operating motor vehicle including engine, frame, operational controls, and other essential parts but exclusive of a cab, body or accommodations for the operator, passengers, or property. Where a cab or flat face cowl is installed on a chassis, the composite is known and designated as "chassis and cab" or "chassis and cowl", etc. It would therefore be appreciated if the NHTSA interpretations to be rendered, especially on the repair versus new vehicle manufacturing question, give due consideration to the above clarification of "chassis" which NHTSA has previously used in a questionable and perplexing manner.

We do not construe that the use of a new "frame" or the equivalent structure to which is attached the used components of the original vehicle, to replace a damaged, bent, and/or unserviceable "frame" in any way, shape, or form constitutes the construction of a new motor vehicle, considering that the vehicles operating and identifying characteristics remain unchanged.

Again, related to the above, is the processing of a tank trailer where an existing leaking compartment is to be replaced or where the compartment is to be increased in capacity while the remainder of the vehicle is not otherwise changed. We do not consider that these repairing processes constitutes the construction of a new vehicle for Safety Standards Application purposes.

The Truck Trailer Manufacturers Association fully supports the enforcement of appropriate, practical and needed for safety Motor Vehicle Safety Standards. However, we must petition for the reconsideration of what appears to be the unlawful interpretations which, in effect, retroactively require equipment modernization to the most current safety standards promulgated for new vehicles to be applied to used motor vehicles because of normal trade practices of cost effective repairing of damaged or otherwise unserviceable used equipment.

The Association believes that the Podlewski response by NHTSA is a questionable intepretation of Motor Vehicle Safety Standards which were promulgated under the Administrative Procedures Act. What appears to have happened, in this case of repair versus new manufacturing question, has the effect of retroactive applicability of Safety Standards by fiat subsequent to the time that the Standards are established. Yet, we do not believe NHTSA or the Congress ever intended to require the retroactive modernization of used vehicles by rule interpreting procedures.

The Truck Trailer Manufacturers Association supports the concept found in the White Motor Company's suggested draft of "Interpretation of Manufacture vs. Repair of Vehicles" contained in the Public Docket.

It is therefore requested that the contents of this presentation be given due consideration in the action now being studied by Legal Counsel of NHTSA on the Diamond Reo-International-White et al reconsideration question of Repair vs. New Manufacturing.

Sumner Meiselman Staff Engineer