ID: 86-3.33

TYPE: INTERPRETATION-NHTSA

DATE: 05/27/86 EST

FROM: ERIKA Z. JONES -- NHTSA CHIEF COUNSEL

TO: R.A. BYNUM -- ASSOCIATE DIRECTOR, PUPIL TRANSPORTATION SERVICE, VIRGINIA DEPARTMENT OF EDUCATION

TITLE: NONE

TEXT: This is a response to your letter of January 25, 1988, where you asked this agency to "provide (your Department) with the precise language of the various federal laws and regulations which describes the application and enforcement of the April 1, 1977 school vehicle regulations." You state that Virginia has "agreed to enforce" the Federal school bus regulations by requiring that "all school activity buses purchased, leased or contracted for after January 1, 1985" comply with Federal school bus regulations.

You state that according to your maintenance records for vehicles in the school bus fleet, some "Detroit Line" vans do not comply with Federal regulations, and Virginia may wish to take some action (1) to remove certain "noncomplying" vehicles from the school bus fleet, and (2) to warn dealers and manufacturers against selling noncomplying vehicles to Virginia school divisions. You state that you are concerned with "school activity vehicles which were designed for more than ten passenger capacity," and say that the State of Virginia may order some school districts to remove certain vehicles from service, because they appear not to comply with Federal safety standards for school buses.

As I read your letter and the materials you submit with it, your principal concern seems to be with the compliance requirements for passenger vans with at least 11 designaated seating positions, and used to transport students to and from school-related events. Let me begin by explaining that under Federal regulations, there is no vehicle classification called "van." Instead, a passenger van is classified either as a "multipurpose passenger vehicle" (MPV) or a "bus," depending primarily upon its seating capacity. An MPV is a motor vehicle (1) designed to carry a driver and nine or fewer passengers, (in other words, with not more than 10 designated seating positions), and (2) either constructed on a truck chassis or equipped with features for off-road operation. A bus is a motor vehicle designed to carry a driver and 10 or more passengers. (In other words, a bus has at least 11 designated seating positions.)

If that vehicle with at least 11 designated seating positions also is manufactured and sold to carry school children, then the vehicle is not just a bus, but a school bus. The National Traffic and Motor Vehicle Safety Act (Vehicle Safety Act) and regulations issued under it, define a school bus in terms of (1) the vehicle's designed capacity for carrying people, and (2) the vehicle's intended use. More specifically, a school bus is a motor vehicle designed for carrying a driver and 10 or more passengers, and sold for transporting students to and from school or school-related events. Please note that a vehicle with at least 11 designated seating positions intended for use in transporting students to school-related activities is a school bus even if the vehicle is not used to transport students to and from school.

Please note further that NHTSA uses its definition of school bus in regulating the manufacture and sale of new vehicles. A new vehicle that meets the definition of a school bus must meet Federal safety standards for school buses. A school bus manufacturer must certify that its vehicle meet all applicable Federal safety standards, and a commercial seller must sell only a complying vehicle as a school bus. In your letter, you state that Virginia may warn some dealers and manufacturers against selling noncomplying vehicles to your school districts. If a dealer has in its inventory, a motor vehicle with at least 11 designated seating positions, and if that vehicle is not certified as complying with all Federal safety standards applicable to a school bus, then in all likelihood, the dealer has violated the Vehicle Safety Act if he sells or has sold a noncomplying vehicle to a Virginia school district.

This is because NHTSA has maintained a long-standing position that if a dealer sells an MPV or bus capable of being converted and used as a school bus to a school or a school bus contract operator, that dealer is responsible for certifying the vehicle's compliance with school bus standards. (40 FR 40854, September 4, 1975.) The agency has placed these special responsibilities with the dealer because the dealer frequently is the person in the distribution chain with the best knowledge of how a buyer intends to use a vehicle. In a case where the dealer is uncertain of the buyer's intent, the agency has suggested that the dealer request a written statement of purpose from the buyer. (40 FR 60033, 60034, December 31, 1975.) Of course, a manufacturer who sells a noncomplying vehicle to a school district also violates the Vehicle Safety Act, and is subject to a civil penalty of $ 1000 for each violation of the Act or regulations issued under it.

Generally under the Vehicle Safety Act, a manufacturer's or seller's certification responsibilities apply up to the vehicle's first purchase in good faith for purposes other than resale (in other words, up to the first retail sale of the vehicle). After that first retail sale, Federal responsibilities change. Federal restrictions concerning used vehicles are set out in @ 108(a)(2)(A) of the Vehicle Safety Act (15 U.S.C. 1397(a)(2)(A)). That section states that:

No manufacturer, distributor, dealer, or motor vehicle repair business shall knowingly render inoperative, in whole or in part, any device or element of design installed on or in a motor vehicle or item of motor vehicle equipment in compliance with an applicable Federal motor vehicle safety standard . . .

Section 108 means that none of the identified persons or businesses may remove, disconnect, or degrade the performance of safety equipment or designs that are installed in a school bus in compliance with an applicable Federal safety standard. Note that this prohibition in the Federal law does not prevent the vehicle owner (e.g., a local school system) from itself making modifications to its own vehicles. Again, as with any violation of $ 108 or regulations issued under it, this agency may seek civil penalties of $ 1000 per violation.

In your letter, you express concern with the failure of some Virginia school districts either to purchase school buses that comply with Federal safety standards, or to maintain the districts' existing school bus fleet. Please be aware that there is no Federal requirement that school districts either purchase complying vehicles for transporting school students, maintain a bus fleet so that the vehicles continue to comply with Federal safety standards, or otherwise bring a vehicle into compliance with Federal school bus standards. This agency can not regulate the purchase or use of a vehicle, and consequently can not require a school district to purchase or use only those vehicles that comply with the Federal school bus safety standards. These matters are within the authority of the individual State. Under a Federal statute called the Highway Safety Act, NHTSA has issued guidelines that cover a wide range of subjects relative to school bus identification, operation, and maintenance (23 CFR Part 1204, Highway Safety Program Standard No. 17). NHTSA may recommend, but does not require, that an individual State adopt all or part of these guidelines. Therefore, the State of Virginia, not the Federal Government, would impose limitations on the purchase, use, and maintenance of vehicles by a school district, and would determine whether to order a district to remove noncomplying vehicles from its school bus fleet.

You ask for "the precise language" of Federal laws and regulations that apply to school buses. Title 49 of the Code of Federal Regulations (CFR) Part 571 contains the Federal safety standards. The following is a list of the Federal motor vehicle safety standards that include requirements for new school buses:

Standards No. 101 through 104 (49 CFR @ 571.101 - @ 571.104)

Standard No. 105 (School buses with hydraulic service brake systems)

Standards No. 106 through 108

Standards No. 111 through 113

Standard No. 115

Standard 116 (School buses with hydraulic brake systems)

Standard No. 120

Standard No. 121 (School buses with air brake systems)

Standard No. 124

Standards No. 201, 203, and 204 (School buses with a gross vehicle

weight rating [GVWR] of 10,000 pounds or less)

Standards No. 205, 207, 208, and 210

Standard No. 212 (School buses with a GVWR of 10,000 pounds or less)

Standard No. 217

Standard No. 219 (School buses with a GVWR of 10,000 pounds or less) Standard No. 220

Standard No. 221 (School buses with a GVWR greater than 10,000 pounds)

Standards No. 222, 301, 302.

You may find a copy of 49 CFR at a Federal Depository Library in your State. I enclose a list of those Libraries in Virginia. If you so choose, you may purchase a copy of Title 49 from the United States Printing Office (GPO), Washington, D.C., 20402, (202) 783-3238. The principal Federal statute governing vehicle safety regulation is the Vehicle Safety Act (15 United States Code @ 1381 et seq.). You may obtain a copy of this and other Federal laws from GPO.

In an undated memorandum you sent to Division Superintendents, you refer to a school bus fleet review, and state that this review includes "cars, vans, activity buses, etc. which are used primarily to transport school pupils." Some of these vehicles were not subject to Federal school bus vehicle classification. I must emphasize NHTSA's position that a vehicle meeting Federal school bus regulations is the safest way to transport students, and I encourage your school districts to give their most careful consideration to the possible consequences of transporting students in vehicles that do not comply with these regulations.

I hope you find this information helpful. If you have further questions, please contact Joan Tilghman of my staff at this address or by telephone at (202) 366-2992.

ID: 2885o

Mr. R.A. Bynum
Associate Director, Pupil Transportation Service
Virginia Department of Education
P.O. Box 60
Richmond, VA 23216-2060

Dear Mr. Bynum:

This is a response to your letter of January 25, 1988, where you asked this agency to "provide (your Department) with the precise language of the various federal laws and regulations which describes the application and enforcement of the April 1, 1977 school vehicle regulations." You state that Virginia has "agreed to enforce" the Federal school bus regulations by requiring that "all school activity buses purchased, leased or contracted for after January 1, 1985" comply with Federal school bus regulations.

You state that according to your maintenance records for vehicles in the school bus fleet, some "Detroit Line" vans do not comply with Federal regulations, and Virginia may wish to take some action (1) to remove certain "noncomplying" vehicles from the school bus fleet, and (2) to warn dealers and manufacturers against selling noncomplying vehicles to Virginia school divisions. You state that you are concerned with "school activity vehicles which were designed for more than ten passenger capacity," and say that the State of Virginia may order some school districts to remove certain vehicles from service, because they appear not to comply with Federal safety standards for school buses.

As I read your letter and the materials you submit with it, your principal concern seems to be with the compliance requirements for passenger vans with at least 11 designated seating positions, and used to transport students to and from school-related events. Let me begin by explaining that under Federal regulations, there is no vehicle classification called "van." Instead, a passenger van is classified either as a "multipurpose passenger vehicle" (MPV) or a "bus," depending primarily upon its seating capacity. An MPV is a motor vehicle (1) designed to carry a driver and nine or fewer passengers, (in other words, with not more than 10 designated seating positions), and (2) either constructed on a truck chassis or equipped with features for off-road operation. A bus is a motor vehicle designed to carry a driver and 10 or more passengers. (In other words, a bus has at least 11 designated seating positions.) If that vehicle with at least 11 designated seating positions also is manufactured and sold to carry school children, then the vehicle is not just a bus, but a school bus. The National Traffic and Motor Vehicle Safety Act (Vehicle Safety Act) and regulations issued under it, define a school bus in terms of (1) the vehicle's designed capacity for carrying people, and (2) the vehicle's intended use. More specifically, a school bus is a motor vehicle designed for carrying a driver and 10 or more passengers, and sold for transporting students to and from school or school-related events. Please note that a vehicle with at least ll designated seating positions intended for use in transporting students to school-related activities is a school bus even if the vehicle is not used to transport students to and from school.

Please note further that NHTSA uses its definition of school bus in regulating the manufacture and sale of new vehicles. A new vehicle that meets the definition of a school bus must meet Federal safety standards for school buses. A school bus manufacturer must certify that its vehicles meet all applicable Federal safety standards, and a commercial seller must sell only a complying vehicle as a school bus. In your letter, you state that Virginia may warn some dealers and manufacturers against selling noncomplying vehicles to your school districts. If a dealer has in its inventory, a motor vehicle with at least 11 designated seating positions, and if that vehicle is not certified as complying with all Federal safety standards applicable to a school bus, then in all likelihood, the dealer has violated the Vehicle Safety Act if he sells or has sold a noncomplying vehicle to a Virginia school district.

This is because NHTSA has maintained a long-standing position that if a dealer sells an MPV or bus capable of being converted and used as a school bus to a school or a school bus contract operator, that dealer is responsible for certifying the vehicle's compliance with school bus standards. (40 FR 40854, September 4, 1975.) The agency has placed these special responsibilities with the dealer because the dealer frequently is the person in the distribution chain with the best knowledge of how a buyer intends to use a vehicle. In a case where the dealer is uncertain of the buyer's intent, the agency has suggested that the dealer request a written statement of purpose from the buyer. (40 FR 60033, 60034, December 31, 1975.) Of course, a manufacturer who sells a noncomplying vehicle to a school district also violates the Vehicle Safety Act, and is subject to a civil penalty of $1000 for each violation of the Act or regulations issued under it.

Generally under the Vehicle Safety Act, a manufacturer's or seller's certification responsibilities apply up to the vehicle's first purchase in good faith for purposes other than resale (in other words, up to the first retail sale of the vehicle). After that first retail sale, Federal responsibilities change. Federal restrictions concerning used vehicles are set out in 108(a)(2)(A) of the Vehicle Safety Act (15 U.S.C. 1397(a)(2)(A)). That section states that: No manufacturer, distributor, dealer, or motor vehicle repair business shall knowingly render inoperative, in whole or in part, any device or element of design installed on or in a motor vehicle or item of motor vehicle equipment in compliance with an applicable Federal motor vehicle safety standard...

Section 108 means that none of the identified persons or businesses may remove, disconnect, or degrade the performance of safety equipment or designs that are installed in a school bus in compliance with an applicable Federal safety standard. Note that this prohibition in the Federal law does not prevent the vehicle owner (e.g., a local school system) from itself making modifications to its own vehicles. Again, as with any violation of 108 or regulations issued under it, this agency may seek civil penalties of $1000 per violation.

In your letter, you express concern with the failure of some Virginia school districts either to purchase school buses that comply with Federal safety standards, or to maintain the districts' existing school bus fleet. Please be aware that there is no Federal requirement that school districts either purchase complying vehicles for transporting school students, maintain a bus fleet so that the vehicles continue to comply with Federal safety standards, or otherwise bring a vehicle into compliance with Federal school bus standards. This agency can not regulate the purchase or use of a vehicle, and consequently can not require a school district to purchase or use only those vehicles that comply with the Federal school bus safety standards. These matters are within the authority of the individual State. Under a Federal statute called the Highway Safety Act, NHTSA has issued guidelines that cover a wide range of subjects relative to school bus identification, operation, and maintenance (23 CFR Part 1204, Highway Safety Program Standard No. 17). NHTSA may recommend, but does not require, that an individual State adopt all or part of these guidelines. Therefore, the State of Virginia, not the Federal Government, would impose limitations on the purchase, use, and maintenance of vehicles by a school district, and would determine whether to order a district to remove noncomplying vehicles from its school bus fleet.

You ask for "the precise language" of Federal laws and regulations that apply to school buses. Title 49 of the Code of Federal Regulations (CFR) Part 571 contains the Federal safety standards. The following is a list of the Federal motor vehicle safety standards that include requirements for new school buses:

Standards No. 101 through 104 (49 CFR 571.101 - 571.104) Standard No. 105 (School buses with hydraulic service brake systems) Standards No. 106 through 108 Standards No. 111 through 113 Standard No. 115 Standard 116 (School buses with hydraulic brake systems) Standard 120 Standard No. 121 (School buses with air brake systems) Standard No. 124 Standards No. 201, 203, and 204 (School buses with a gross vehicle weight rating [GVWR] of 10,000 pounds or less) Standards No. 205, 207, 208, and 210 Standard No. 212 (School buses with a GVWR of 10,000 pounds or less) Standard No. 217 Standard No. 219 (School buses with a GVWR of 10,000 pounds or less) Standard No. 220 Standard No. 221 (School buses with a GVWR greater than 10,000 pounds) Standards No. 222, 301, 302.

You may find a copy of 49 CFR at a Federal Depository Library in your State. I enclose a list of those Libraries in Virginia. If you so choose, you may purchase a copy of Title 49 from the United States Printing Office (GPO), Washington, D.C., 20402, (202) 783-3238. The principal Federal statute governing vehicle safety regulation is the Vehicle Safety Act (15 United States Code 1381 et seq.). You may obtain a copy of this and other Federal laws from GPO.

In an undated memorandum you sent to Division Superintendents, you refer to a school bus fleet review, and state that this review includes "cars, vans, activity buses, etc. which are used primarily to transport school pupils." Some of these vehicles were not subject to Federal school bus safety standards, because the vehicles do not fit in the school bus vehicle classification. I must emphasize NHTSA's position that a vehicle meeting Federal school bus regulations is the safest way to transport students, and I encourage your school districts to give their most careful consideration to the possible consequences of transporting students in vehicles that do not comply with these regulations.

I hope you find this information helpful. If you have further questions, please contact Joan Tilghman of my staff at this address or by telephone at (202) 366-2992.

Sincerely,

Erika Z. Jones Chief Counsel

/ Senator John W. Warner 805 Federal Building 200 Granby Mall Norfolk, VA 23510 ref:VSA#57l d:5/27/88

ID: nht81-3.46

DATE: 11/30/81

FROM: AUTHOR UNAVAILABLE; Frank Berndt; NHTSA

TO: Newbuilt Enterprises

TITLE: FMVSR INTERPRETATION

TEXT: This responds to your letter of May 26, 1981, regarding Safety Standard No. 205, Glazing Materials. Please accept my apologies for the lateness of our response. You request permission to install a "Ballistic Cube 2000" in 500 motor vehicles over a two-year period for experimental purposes. The "Ballistic Cube 2000" is a protective cubicle made of Lexgard that is installed inside a vehicle. Lexgard, a bullet-resistant material, does not comply with all the requirements of Standard No. 205. You urge us to grant your request on the basis that the data generated from such an experiment would be relevant to a rulemaking proceeding initiated by General Electric. (General Electric has petitioned NHTSA to amend Standard No. 205 to permit the use of protective bullet-resistant shields in vehicles. The agency granted this petition on November 28, 1980.)

Standard No. 205 is an equipment standard which applies to all glazing materials used in passenger cars, buses, trucks, and multipurpose passenger vehicles. All automotive glazing materials, including those used in the Ballistic Cube 2000, must conform to the standard's requirements. Section 108(a)(1)(A) of the National Traffic and Motor Vehicle Safety Act of 1966 (the Act) provides in part that no person shall sell or manufacture for sale any item of motor vehicle equipment that does not comply with any applicable Federal motor vehicle safety standard in effect on the date of the item's manufacture. Thus, if you were to manufacture for sale or sell a Ballistic Cube 2000 made of Lexgard or any other glazing material that does not comply with Standard No. 205, you would be in violation of section 108(a)(1)(A). (Section 108(b)(5) establishes that section 108(a)(1)(A) does not apply when the motor vehicle or item of motor vehicle equipment is intended solely for export and is so labeled.) Section 109 imposes a civil penalty up to $ 1,000 for each violation of Section 108.

We believe that installation of the Ballistic Cube 2000 in motor vehicles could possibly generate test data that could be valuable to the agency in the previously mentioned rulemaking proceeding. Unfortunately, however, NHTSA does not have the legal authority to grant you permission to make such an installation. NHTSA does not have statutory authority to exempt an equipment manufacturer from the requirements of Section 108(a)(1)(A) as it relates to motor vehicle equipment.

Section 123 of the Act authorizes the exemption of motor vehicles from the safety standards. However, it does not authorize the exemption of motor vehicle equipment from equipment standards. As noted above, Standard No. 205 is an equipment standard applicable to glazing. Consequently, no exemption can be granted under section 123 that would excuse manufacturing, offering for sale or selling noncomplying glazing as part of the vehicles you wish to modify and sell, since you would also be considered an equipment manufacturer.

While the agency cannot grant you an exemption, it is pursuing the request made by G.E. regarding Lexgard. The agency anticipates issuing a notice of proposed rulemaking before the end of this year. If a final rule permitting the use of Lexgard were issued, you could commence manufacturing and installation of the Ballistic Cubes upon the effective date of that rule.

Even if that rule is issued, there may be other standards which must be considered. As we understand your materials, the installation of the Ballistic Cube 2000 in motor vehicles may affect the compliance of those vehicles with FMVSS No. 103, Windshield Defrosting and Defogging Systems, and FMVSS No. 201, Occupant Protection in Interior Impact. If you were to install a Ballistic Cube in a new vehicle, i.e., one that had not yet been purchased for purposes other than resale, you would violate section 108(a)(1)(A) if the vehicle no longer complied with one of those standards. Of course, since Standard Nos. 103 and 201 are vehicle standards, you could apply for an exemption from those standards. Section 108(a)(2)(A) of the Act would prohibit you from installing the Ballistic Cube in a used vehicle if such installation would destroy the vehicle's compliance with Standards 103 and 201.

The agency cannot definitively state whether installation of your cube in a motor vehicle would affect the compliance of the vehicle with Standards Nos. 201 or 103. NHTSA does not offer prior approval of compliance of any vehicle or equipment design with any safety standard before the manufacturer's certification of its product. It is the manufacturer's responsibility under the Act to determine whether its vehicle or equipment complies with all applicable safety standards and regulations and to certify its vehicle or equipment in accordance with that determination. The agency is willing to offer an opinion on whether a vehicle or motor vehicle equipment complies with a particular rule. Such an opinion is not binding on the agency or on the manufacturer. However, the information you have provided in your letter does not give us a sufficient basis on which to form an opinion. It would probably be difficult for the agency to offer an opinion concerning your compliance with Standard 203 regardless of the information you supplied, since that standard involves a dynamic performance test.

Apart from the requirements imposed by section 108(a)(1)(A) regarding compliance with safety standards, manufacturers of motor vehicle equipment also have general responsibilities under the Act regarding safety defects. Under sections 151 et seq., such manufacturers must notify purchases about safety-related defects and remedy such defects free of charge. Section 109 imposes a civil penalty of up to $ 1,000 upon any person who fails to provide notification of or remedy for a defect in motor vehicle equipment.

I am sorry we are unable to accommodate you in this matter. However, since it is beyond our legal authority to do so, we have no choice but to make the decision set forth in this letter. Please contact this office if you have any questions.

SINCERELY,

NEWBUILT ENTERPRISES

May 26, 1981

Office of the Chief Counsel National Highway Traffic Safety Administration

Attention: Frank Berndt, Chief Counsel Gentlemen:

Our firm has developed a new concept in the manufacture of bullet-resistant vehicles. This concept is known as the Ballistic Cube 2000 with U. S. Patent Pending, Serial No. 253,108.

Our "cube" concept utilizes a highly bullet-resistant material manufactured by General Electric Company, called Lexgard.

We are enclosing some literature which more fully explains our application of this Lexgard material and our Ballistic Cube 2000 concept. We also have met with Carl C. Clark, PhD, Office of Vehicle Structures Research, and his committee regarding our new concept.

We presented a video film and demonstration to the committee on May 21, 1981. If you have any questions regarding the technical nature of our application, we are quite sure Dr. Clark would be more than happy to answer any questions you might have.

We hereby request your permission and an assurance of non-prosecution for any violation of the Motor Vehicle Safety Standard No. 205, for an experimental period of two years. We desire to fabricate and install our units for on-highway use to develop facts and test data to substantiate the advantages of our application.

As you are probably aware, General Electric Company has petitioned the Department for amendments in the current standards. This petition has been granted and is currently being reviewed. They have requested that the National Highway Traffic Safety Administration amend MVSS No. 205 by adapting the following new glazing category:

"Item IIX: Materials conforming to the requirements of Test Numbers 2, 16, 17, 20, 21, 24, 27, 28, 29, and 32 of ANSZ26.1 may be used as a bullet-resisting shield at levels requisite for driver visibility. The phrase "bullet-resisting shield" for the purposes of this standard means a transparent barrier mounted completely inside the vehicle, behind and separated from glazing materials that independently comply with the requirements of FMVSS No. 205. The bullet-resisting shield shall be conveniently removable for cleaning and replacement without disturbing the (exterior-glass) glazing material."

Our vehicle production during this two year experimental period is estimated as follows: Number of Units Description 100 Armored Transport Vehicles (Money Carriers) 50 Law Enforcement Transports (Buses, Vans) 150 Private Automobiles 150 Motor Coaches - Public Transportation 50 Rescue Units - Law Enforcement

The only area in which our concept does not comply with the current Standard No. 205 is that ANS Z26 does not permit the use of Lexgard BR in the windshield area. It does permit the use of bullet-resistant glass. Lexgard provides far better protection than BR glass. The windshield can also be removed quickly in case of an emergency.

Some of the advantages of our concept are as follows:

- Vehicle fuel economy is considerably improved by weight reductions in the glazing materials and in the required support and framing members. Lexgard is one-third the weight of BR glass.

- Lexgard BR qualifies as both an AS-10 and AS-11 glazing material under the requirements defined in the current standard, ANS Z26.1-1966.

- Unlike other bullet-resisting materials, Lexgard BR does not spall under impact.

- Lexgard BR provides a greater level of overall protection from ballistic impacts than other equivalently rated bullet-resisting products.

- The vehicles we are proposing to use are primarily operated by trained, skilled, professional drivers.

After reviewing the information, we respectfully request your favorable response to our request.

Should you have any further questions or require additional information, please contact us.

Rickey L. Newmayer President

Jerry A. Corbett Vice-President

Literature Omitted

ID: nht75-2.47

DATE: 08/22/75

FROM: AUTHOR UNAVAILABLE; R. L. Carter; NHTSA

TO: F. A. McNiel

TITLE: FMVSS INTERPRETATION

TEXT: On May 12, 1975, you petitioned the National Highway Traffic Safety Administration for rulemaking to amend Standard No. 108 to provide "A means that will hasten the illumination of a vehicles conventional stop warning lamps at any time that a 'panic' or any other exceptionally sudden stop is made, but wherein the said means will not affect the normal functioning of the vehicles lighting system at any other time."

We have given thoughtful consideration to your petition. It appears to us that the system you prefer would indicate only that the accelerator pedal had been released suddenly, and not that a sudden or "panic" stop was being made. In our view, a sudden release of the accelerator does not necessarily mean that a panic stop is in progress. Conversely, all sudden stops are not necessarily accompanied by a sudden release of the accelerator. In short, the presumed benefit of the system appears speculative, and no data have been submitted demonstrating that the signaling system would enhance highway safety. For these reasons your petition must be denied.

Standard No. 108 would not preclude the sale of your deceleration warning device in the aftermarket, subject to regulation by the individual States.

We appreciate your interest in motor vehicle safety.

Sincerely,

ATTACH.

Robert L. Carter Associate Administrator -- National Highway Traffic Safety Administration, Motor Vehicle Programs

Dear Mr. Carter:

The May 1, 1974 issue of 'Status Report' published by the Insurance Institute for Highway Safety contained an article stating that your agency had proposed amending Motor Vehicle Safety Standard No. 108 to allow the use of (1) a vertically mounted rear facing red-yellow-green lamp system that signals braking, no pedal application, or acceleration. -- or (2) Pulsating rear lamps that indicate when the vehicle is decelerating rapidly. - The proposal would also allow for the use of a combination of both systems.

Apparently both of these systems require auxiliary lamps in addition to the vehicles existing stop-light signal lamps. I am petitioning that Motor Vehicle Safety Standard No. 108 be further amended to include basically the following - "A means that will hasten the illumination of a vehicles conventional stop warning lamps at any time that a 'panic' or any other exceptionally sudden stop is made, but wherein the said means will not affect the normal functioning of the vehicles lighting system at any other time".

It has long been a universally recognized and accepted fact that the flash of a lead vehicles stop-lights signal a following driver that the lead vehicles momentum is being retarded, possibly to the extent of a complete stop. As everyone knows there has been no basic improvement in a vehicles stop warning system since the adoption of the brake operated stop-light switch. - You could obtain an 'add-on' stop-light kit for a Model-T more than fifty years ago that would function just as effectively as the conventional stop-light system that is now in use on all modern automobiles, - either one will illuminate a stop lamp the instant that the vehicles brakes are applied.

The warning that is produced by such conventional stop-light systems is adequate under the proceedure that is customarily used by most drivers in making a normal stop, but is woefully inadequate when a 'panic' or other unexpected sudden stop is made. The critical factor in this instance is the loss of time that occurs between the driver of a closely following vehicle seeing the flash of a lead vehicles stop-lights (at which time the lead vehicles brakes are already on), and the time that the following vehicles brakes are actually applied. This time loss is composed of two very distinct and separate parts, the first part being 'driver reaction' and the second part being 'warning lag'.

Driver reaction accounts for the time loss occuring between a driver perceiving the flash of a leading vehicles stop-lights and the complete release of the following vehicles accelerator pedal. This time interval varies in accord with a specific drivers mental alertness and physical agility. It is estimated that this time loss is at least one quarter of one second for an exceedingly alert driver, and considerably more for one that is less alert. There appears to be no discernable way by which this reaction time loss can be prevented.

Warning lag is the split second that is required for a driver to shift his (or her) foot from the accelerator pedal to the brake pedal and apply pressure to energize the brake operated stop-light switch, and illuminate the vehicles stop-lights. This time interval also varies to some extent according to the agility of a particular driver. -- Extensive tests have been conducted, using electronic detonating equipment to gauge the results. These tests have established the fact that this time loss is also approximately one quarter of one second for agile drivers. - This time loss can positively be totally eliminated.

It is an accepted fact that the majority of rear-end collisions occur when one driver in a congested flow of traffic unexpectedly jams on the vehicles brakes without prior warning, to make a 'panic' or other very sudden stop, and the driver of a closely following vehicle does not have sufficient braking time to stop before ramming the vehicle ahead. - This is particularily true of 'chain-reaction' pileups where the 'warning lag' is cumulative from car to car.

Enclosed is an outline for a hypothetical traffic situation of a type that is typical of todays congested traffic conditions. The accompanying chart that is based on the conditions as set forth by the hypothetical situation illustrates precisely the results that would be obtained by the elimination of 'warning lag'. - I am also enclosing sketches and an explanation of a particular means that I have perfected, that proves beyond the shadow of a doubt that the possibility of eliminating 'warning lag' as emphasized by chart is a reality - not a 'pipe dream'.

I was informed by the National Highway Safety Bureau more than five years ago:- "The National Highway Safety Bureau is cognizant of the fact that rear end collisions account for 10 per cent of the fatal motor vehicle accidents and 49 per cent of all motor vehicle accidents". - In line with these statistics I pose the following analysis in accordance with the submitted data.

Assume that one half of all drivers that crash into a vehicle ahead see the flash of the lead vehicles stop-lights, and are on their own vehicles brakes at the time of the crash. - If the lead vehicles were all equipped with a means for the elimination of 'warning lag', this would mean that one eight of the drivers that are involved in all motor vehicle accidents would have been applying their brakes for an additional ten feet (at 30 M.P.H.) before becoming involved in an accident that would cause damage to two cars. - If this ten feet of braking did not prevent an accident occurring, it would in every instance greatly reduce the force of impact, and the resultant damages to both of the vehicles that were involved. - Thus, if the safety feature that I am advocating was standard equipment on all motor vehicles, it would greatly reduce the damages sustained by one fourth of all motor vehicles that are involved in motor vehicle accidents of any kind! - Stupendous? - but true.

If this reduced the rear-end collision fatality toll by one tenth, it would amount to the saving of one life out of every one hundred of the current traffic fatalities. - The reduction in personal injuries resulting from such accidents would be very considerable, and the monetary saving by the public would be collosal. - Also, it should permit the Insurance Companies to make a very substantial reduction in the cost of premiums that are charged the public for motor vehicle insurance.

Any vehicle that is damaged in a traffic accident is not any more valuable after it has been repaired than it was prior to the accident occurring - consequently, all expenditures that are required for both the labor and materials used for repair or replacement of vehicles that are damaged in accidents that could have been prevented are wholly wasted. - If these really enormous outlays were available for constructive purposes, it would help to bolster our sagging national economy.

In relation to the enclosed data concerning the particular means I have perfected, sketch No. 1 shows the general assembly of switch unit. Sketch No. 2 shows the unit mounted behind the instrument panel in passenger compartment of vehicle, and sketch No. 3 shows unit mounted under hood in the engine compartment of the vehicle. - Both methods of mounting as shown have been very thoroughly tested, and each has been found to function perfectly. The accompanying specifications are drawn around sketches No. 1 and No. 2. Sketch No. 3 shows some alternations in the assembly of the unit, but functioning is identical to that of sketch No. 2.

If your engineers will thoroughly check all of the submitted data they will find it to be totally correct. - Also, careful analyzation of this data will reveal that factory installation of this type of safety equipment would cost no more than does the installation of conventional turn signals.

In view of the unquestionable reduction in damages to both the vehicles and their occupants that would accrue from the use of safety equipment such as I am advocating, I request that your organization give due consideration to amending Motor Vehicle Safety Standard No. 108 to include the use of such safety equipment for improving the performance of a motor vehicles existing stop warning lamps.

In the meantime, will you please inform me if the use of safety equipment such as is described by the enclosed data is permissible under the existing Motor Vehicle Safety Standard No. 108.

Yours very truly,

Fred A. McNiel

ID: nht81-3.6

DATE: 08/07/81

FROM: AUTHOR UNAVAILABLE; F. Berndt; NHTSA

TO: Volkswagen of America, Inc.

TITLE: FMVSS INTERPRETATION

TEXT: This responds to your recent letter asking which of the specific requirements of Safety Standard No. 209, Seat Belt Assemblies, must be met by an automatic seat belt assembly that is installed in a vehicle in accordance with the automatic restraint requirements of Safety Standard No. 208, Occupant Crash Protection.

The agency has stated in the past that automatic seat belt assemblies must meet the adjustment requirements of paragraph S7.1 of Safety Standard No. 208, and those parts of Safety Standard No. 209 that are incorporated by reference in S7.1, whether or not the automatic belts are installed to meet the frontal crash protection requirements of paragraph S5.1 of Safety Standard No. 208. Automatic belts that are installed to comply with the frontal crash protection requirements are excepted from the other requirements of Safety Standard No. 209 by paragraph S4.5.3.4 of Safety Standard No. 208. As noted in your letter, paragraph S7.1 of Safety Standard No. 208 requires the automatic belt assembly to have a retractor that complies with Safety Standard No. 209. However, the requirements for retractor performance in Safety Standard No. 209 are based on other tests in the standard which are used for preconditioning or as prerequisites. Therefore, you state that it is not clear which requirements must be met by a retractor on an automatic belt assembly.

Paragraph S7.1 of Safety Standard No. 208 is only intended to incorporate by reference those provisions in Safety Standard No. 209 that are directly related to retractor performance. Therefore, all automatic belt retractors are required to comply with the following provisions of Safety Standard No. 209: S4.3(j); S4.3(k); and S5.2(a), (b), (j), and (k). Please note, however, that the retractors do not have to comply with paragraph S4.4 which is incorporated by reference in S4.3(k), since S4.4 relates to the performance of entire belt assemblies.

I hope this has been responsive to your inquiry. We apologize for the delay.

Sincerely,

ATTACH.

VOLKSWAGEN OF AMERICA, INC.

APRIL 29, 1981

Frank Berndt -- Chief Counsel, National Highway Traffic Safety Administration SUBJECT: Request for Interpretation - FMVSS 208 and 209 Requirements for Automatic Belts

Dear Mr. Berndt:

Federal Motor Vehicle Safety Standard (FMVSS) 208, which specifies restraint system requirements for passenger cars, includes a paragraph (S 4.5.3.4) which modifies the applicability of FMVSS 209 to automatic belts. The paragraph actually states that an automatic belt which is not subject to perpendicular frontal crash protection requirements of FMVSS 208 shall meet the webbing, attachment hardware, and assembly performance requirements of FMVSS 209. We believe that the converse is then also true, i.e., that automatic belts which are subject to the perpendicular frontal crash protection requirements do not have to meet the webbing, attachment hardware, and assembly performance requirements of FMVSS 209. On the face of it, and after examination of FMVSS 209, it would seem that these crash-tested automatic belts are then exempt from the entire FMVSS 209. The agency reinforced this belief in a letter of interpretation to Mr. Nield (Attachments 1 & 2).

However, this situation is confounded by a requirement, also in FMVSS 208 (ref. S 4.5.3.3(a)), that automatic belts comply with S 7.1 of the standard. This section, in addition to specifying belt fit requirements, requires a retractor which conforms to FMVSS 209. This conflict with the agency's letter of interpretation to Mr. Nield was brought up by Mr. Pepe (Attachment 3), and the agency responded with a further letter of interpretation to Mr. Pepe (Attachment 4). This letter stated that the automatic belts must meet the fit requirements of S 7.1, "and those parts of Safety Standard No. 209 incorporated by reference". To the best of our knowledge, this response to Mr. Pepe represents the agency's latest pronouncement on the topic.

This now brings us to our question: Exactly what specific parts of FMVSS 209 are applicable to automatic belts? The language of S 7.1 of FMVSS 208, and the letter of interpretation to Mr. Pepe would imply that the paragraphs which apply would be those relating to retractor performance. Mr. John Smreker of my staff suggested this to Mr. Hugh Oates, and he tentatively concurred. However, the interrelationship of the test sequences in FMVSS 209 and the requirements that one test serve as a prerequisite or precondition for another, would seem to bring in sections of FMVSS 209 which are specifically enumerated as excluded in S 4.5.3.4 of FMVSS 208. n1 We therefore need the agency to clarify exactly which paragraphs and which sections of FMVSS 209 do and do not apply to automatic belts.

n1 FMVSS 209 S 4.3(k) Performance of Retractor specifies that the retractor must meet the requirements of S 4.4 (after the tests in S 5.2(k)). However, S 4.4 is entitled "Requirements for Assembly Performance", a topic which is specifically excluded in FMVSS 208 S 4.5.3.4.

We will appreciate your prompt consideration of this matter.

Very truly yours,

Dietmar K. Haenchen -- Vehicle Regulations

Encl.

ATTACHMENT 1

Joseph Levin -- Chief Counsel, National Highway Traffic Safety Administration

Subject: Request for an Interpretation FMVSS 208/209

Dear Mr. Levin:

In reviewing the requirements presented in FMVSS 209, Seat Belt Assemblies in connection with the design of passive belt systems, there appears to be no distinction between the applicability of the standard as to active and passive belt systems. In reviewing FMVSS 208, Occupant Crash Protection However, paragraph 4.5.3.4 appears to exempt passive belt systems from compliance in any manner with the requirements of FMVSS 209. Since such an exemption would provide the design latitude necessary in the development of an optimum passive belt system, I would appreciate your confirmation that this exemption is intended.

In view of the extensive development efforts now underway in the engineering departments of many manufacturers, an expeditious response to this request would be appreciated.

Sincerely,

ATTACHMENT 2

George C. Nield

George C. Nield -- President, Automobile Importers of America

July 17, 1978

Dear Mr. Nield:

This responds to your recent letter asking whether passive safety belts are exempt from the requirements of Safety Standard No. 209, Seat Belt Assemblies.

The answer to your question is yes, with one exception, (Illegible Words) of Safety Standard No. 208, Occupant Crash Protection, specifies that passive safety belts that are not required for the vehicle to meet the perpendicular frontal crash protection requirements of the standard must meet the requirements of Standard No. 209. Therefore, only passive belts that are installed to meet the frontal crash protection requirements of Standard No. 208 are exempted from the requirements of Standard No. 209.

Sincerely,

Joseph J. Levin -- Chief Counsel, NHTSA

ATTACHMENT 3 Joseph J. Levin, -- Chief Counsel, National Highway Traffic Safety Administration

July 23, 1979

Reference: Your letter dated July 17, 1978 to Mr. George C. Nield, President, Automobile Importers of America - NOA-30.

Dear Mr. Levin:

I have this date, received a copy of your letter, referenced above, concerning the testing of passive seat belt assemblies to FMVSS No. 208 or 209 requirements. I feel that your letter may need some clarification or I need some further interpretation.

The question posed was pertaining to para. S4.5.3.4 of FMVSS No. 208. Your answer to that question was yes, that seat belt passive systems are exempt from FMVSS No. 209 testing with the exception of those that are not required to meet the perpendicular frontal crash protection requirements.

My interpretation of the Standard is that the aforementioned paragraph replaces only the assembly performance requirements of FMVSS No. 209, which is a Static Test, with the Dynamic test requirements of FMVSS No. 208.

Paragraph S4.5.3.3 of FMVSS No. 208 states that the passive belt assembly must meet the requirements of FMVSS No. 209 for retractor performance (para. S7.1 Adjustment). Therefore, all passive belt systems whether or not they are installed to meet the frontal crash protection requirements must conform to paragraph S7.1 (S4.5.3.3) of FMVSS No. 208. If my interpretation is not correct, then a retractor which will encounter more usage in a passive belt system, does not have to be tested for endurance per FMVSS No. 209 (i.e. resistence to environments, cycling and retraction force); but an active belt system which sees far less use, must meet those same 209 tests.

In view of testing programs presently in progress for several manufacturers an early reply would be greatly appreciated.

Very truly yours,

Frank Pepe -- Assistant Vice President, Engineering Division

Frank Pepe -- Assistant Vice President, United States Testing Co., Inc.

ATTACHMENT 4

SEPTEMBER 12, 1979

Dear Mr. Pepe:

This responds to your recent letter concerning the requirements applicable to automatic seat belts under Safety Standard No. 208, Occupant Crash Protection. Specifically, you ask for confirmation that all automatic belts must comply with the adjustment specifications of paragraph S7.1 of the standard.

Your understanding is correct. Automatic seat belts must meet the adjustment requirements of paragraph S7.1, and those parts of Safety Standard No. 209 incorporated by reference, whether or not they are required to meet the frontal crash protection requirements of paragraph S5.1 of the standard. Automatic belts that are installed to meet the frontal crash protection requirements are excepted from the other parts of Safety Standard No. 209 by paragraph S4.5.3.4 of Safety Standard No. 208. Please contact Hugh Oates of my office if you have any further questions (202-426-2992).

Sincerely, STEPHEN P WOOD -- NHTSA

ID: 2669rbm

Mr. Charlie Steffens
Director, Systems Engineering
TRW Automotive
Occupant Safety Systems
4505 W. 26 Mile Road
Washington, MI 48094

Dear Mr. Steffens:

This responds to your letter requesting an interpretation of the advanced air bag requirements of Federal Motor Vehicle Safety Standard No. 208, Occupant crash protection (FMVSS No. 208). On May 12, 2000, the National Highway Traffic Safety Administration (NHTSA) published a final rule in the Federal Register (65 FR 30680) requiring advanced air bags in all passenger cars, multi-purpose vehicles, light trucks and buses with a gross vehicle weight rating (GVWR) of 8,500 lb or less. The phase-in for these new requirements begins September 1, 2003. That final rule established new, advanced air bag performance requirements to minimize the risk of injury to children, as well as new requirements to enhance protection of small and mid-size adults. The requirements in S19, S21, and S23 are designed to minimize the risk that air bags pose to infants and small children. S19 provides manufacturers with two different options for complying with the standard (low risk deployment or automatic suppression), while S21 and S23 provide three options (low risk deployment, automatic suppression, or dynamic automatic suppression). Your first question is related to the infant low risk deployment option while your three other questions are related to the interrelationship between the compliance options. I am pleased to provide a response.

You first request an interpretation of the requirement set forth in S19 and the test procedure provided in S20.4, relating to the low risk deployment option for infants. Specifically, you characterize the requirements of S20.4 as follows. "For S20.4.9, if the subject vehicle were equipped with any type of occupant sensing system that was
(1) able to recognize that the passenger seat was occupied by any infant restraint from Appendices A, B, or C of the regulation,
(2) secured into the positions and orientations described in sections S20.4.1 through S20.4.8, and a 49 CFR Part 572 subpart R 12-month-old CRABI dummy positioned according to S20.4 and
(3) the occupant sensing system and airbag control system were designed to control the output of the air bag system in a discrete manner, such as "low output", that the S20.4.9 testing would be conducted at the same discrete output determined by the occupant sensing system. Further, no additional tests to show compliance to S19, such as "high output" testing corresponding to that for a vehicle which does not have an occupant sensing system to meet S20.4.9 would be necessary."

The requirements for the infant low risk deployment option are found at S19.3, which states that "each vehicle shall meet the injury criteria specified in S19.4 of this standard when the passenger air bag is deployed in accordance with the procedures specified in S20.4." The low risk deployment option is designed to address injuries that can result when an infant is placed very close to the air bag. The risk of being directly above or adjacent to the air bag is particularly high for infants because child restraints, when placed in their rear-facing mode, will always place an infant's head close to the dashboard. A poorly installed forward-facing child seat also creates a risk, because the restraint can slide or flip forward during a crash.

S20.4 specifies several conditions for testing the deploying air bag. First, the manufacturer must assure compliance to S19.3 using any child restraint listed in subparts B and C of Appendix A to the standard. Restraints listed in subpart A (car beds) need not be tested because these restraints are not designed to be rear facing. For purposes of S19.3, the air bag is only tested with the child restraints in their rear-facing condition. This represents the worst case injury scenario. Under the specified test conditions, the vehicle seat is moved as far forward as possible, while avoiding contact with the vehicle interior. This is done to ensure that the dummy's head is placed as close to the deploying air bag as possible. The air bag is only tested with the child restraint in a belted condition.

The air bag is deployed at whatever level of force and combination of stages that would deploy in any rigid barrier crash up to 64 km/h (40 mph) when a child or test dummy is positioned in a restraint as specified in the test procedure, except that the vehicle seat may be at any seat track position. This level is determined by running an indicant test, as described in S20.4.9, at impact speeds up to 40 mph with a dummy-occupied restraint installed in the passenger seat. [1]

When NHTSA runs a compliance test on a vehicle certified to S19.3, it will only deploy the air bag at the level and, if equipped with a multi-stage inflator, with the combination of stages, that would deploy in the specified indicant test. Accordingly, vehicle manufacturers that certify to the low risk deployment option will need to ensure that their sensing systems are sufficiently robust to detect the presence of an infant in any one of the child restraints listed in subparts B or C of Appendix A.

If only a "low output" air bag deploys in the indicant test, NHTSA will not deploy a "high output" air bag simply because the "high output" air bag is placed in the vehicle for other occupants who may be seated in the passenger seat. Such an approach would have the effect of preventing vehicle manufacturers from using sensing technology to identify the presence of an infant at higher speeds.

Your next two questions relate to how the different compliance options relate to one another. Specifically, you ask if "the intent of the regulation... mean[s] that at compliance strategy needs to be chosen for each occupant size [i.e., the 1-year-old, the 3-yer-old, and the 6-year-old], but that a different strategy can be employed for each." You then ask if it is "possible to comply with ... the regulation using multiple compliance methods within an occupant size grouping using a logical subgrouping. For instance, could a system use deployment suppression for certifying the 3 and 6-year-old children in child seats and low risk deployment for the 3 and 6-year-old children not in child restraints?"

A vehicle manufacturer must certify to one of the compliance options in S19, S21, and S23. You first ask whether a different compliance option may be used for each group of children addressed by the regulation. The answer is yes. Each set of compliance options specified for a particular group of children is unique to that group. Accordingly, a manufacturer could choose to use automatic suppression to meet the infant and three year old requirements, but low risk deployment or dynamic automatic suppression for the six year old requirements. [2] However, within a given age group, a manufacturer may not choose to certify some portion of the population to one option and another portion of the population to another option. This would result in a unique compliance option that may fail to address all conditions contemplated by each option. For example, it is not acceptable to claim certification by meeting only one of the two low risk deployment positions for the three year old and 50 percent of the suppression positions. A system needs to meet one of the two options in its entirety. A customized compliance option, where the manufacturer used part of different options, but not all of any option, would create a unique compliance scheme that was never contemplated by the agency in determining how best to meet the need for safety without imposing unreasonable constraints on vehicle manufacturers. We note that in the example you provided in your letter, whereby a manufacturer would "use deployment suppression for certifying the 3 and 6-year-old children in child seats and low risk deployment for the 3 and 6-year-old children not in restraints" would be a compliant system that could be fully certified to the low risk deployment option, but not to the suppression option. Nothing in the rule prohibits manufacturers from using such a design philosophy. The deployment strategies related to children restrained in child restraints would remain within the manufacturer's discretion.

Your final question asks whether a manufacturer could use both low risk deployment and automatic suppression systems as a system redundancy. You state: "Assume that a sensing system met all of the conditions... for the RFIS low risk requirement. Suppose the sensing system also had the further capability to classify and suppress for certain tested situations. The system would be certified to meet all the low risk deployment requirements, however under certain conditions the system would suppress the airbag instead of deploying at low level because of this redundant capability. TRW believes a system of this type would comply with FMVSS 208 based upon similar NHTSA interpretations using additional or redundant safety equipment."

Your understanding is correct. Manufacturers may choose to use multiple technologies to address real world risk, without certifying to more than one compliance option. NHTSA specifically addressed this possibility in the May 2000 final rule (65 FR 30680, 30710). For example, a manufacturer may decide to use both low risk deployment and occupant sensing technologies for the six year old because it has concerns that the occupant sensing technology is insufficiently robust for all real world conditions, even though it may meet all the conditions specified in the test procedure. In such an instance, the manufacturer could certify to S23 using either the low risk deployment option or the automatic suppression option, even though in actual driving conditions, the air bag may sometimes deploy when an occupant the size of a 6-year-old is seated in the passenger seat. However, the manufacturer must choose one of the options for certification. Once it decides which option to certify to, it cannot change its position, even though the vehicle may fully meet the requirements of the other options. See S4.8. We require manufacturers to choose a particular option so that we can conduct compliance testing in an effective and productive manner.

I hope this letter addresses your concerns. Please feel free to contact Rebecca MacPherson of my staff at (202) 366-2992 should you have any additional questions.

Sincerely,

Jacqueline Glassman
Chief Counsel

ref:208
d.7/8/03





---

[1] The preamble to the May 2000 final rule states that an indicant test is not required. The statement was made in response to a comment that an indicant test would be required for every child restraint on Appendix A. Multiple indicant tests are not required. It may also be possible that a manufacturer could otherwise ascertain that only a very benign air bag will deploy in the presence of a belted child restraint at any speed. However, NHTSA may choose to run an indicant test to verify that only a benign deployment was possible.

[2] Currently dynamic automatic suppression cannot be used to certify to the infant requirements.

ID: nht95-4.42

TYPE: INTERPRETATION-NHTSA

DATE: October 1, 1995 EST

FROM: Adam Englund -- Electric Bicycle Company, LLC

TO: John Womack -- Acting Chief Counsel, NHTSA

TITLE: Request for Interpretation

ATTACHMT: 1/19/96 letter from Samuel J. Dubbin to Adam Englund (A44; Std. 108; Std. 116; Std. 119; Std. 120; Std. 122)

TEXT: The Electric Bicycle Company, LLC, 3601 Empire Avenue, Burbank CA, 91505 (hereinafter, "EBC") is a limited liability company organized under the laws of the State of Nevada. EBC hereby requests an interpretation with respect to certain Federal Motor Veh icle Safety Standards for the EV Warrior, an electric/human-powered bicycle to be manufactured by EBC.

Confidentiality

Certain portions of this document contain confidential information and trade secrets related to our product and marketing strategy. We have carefully calculated our market position. Based on that market analysis, we spent a great deal of time, money and effort to develop the EV Warrior. As we are about to launch our initial production run, we are aware that other electric bicycles are also entering the market. Our insistence on compliance with FMVSS sets us apart from our competitors. As such, t he very existence, and certainly the content of this Request for Interpretation is confidential and constitutes trade secrets.

We seek an interpretation of certain Federal Motor Vehicle Safety Standards with respect to the electric bicycle that we are about to manufacture.

CONFIDENTIAL

[The EV Warrior is essentially a multi-speed bicycle with attached electric motors that drive the rear wheel through a friction drive wheel against the rear tire. The transmissions of each power source - human and electric - are entirely separate. W hereas the bicycle employs six speed derailleur shifting, the electric motor powers the rear wheel through a single drive wheel on a roller clutch against the tire. The EV Warrior employs many standard bicycle components, including wheels, tires, cantil ever or optional hydraulic disc bicycle brakes, "Grip Shift" gear shifters, cranks and pedals

The power pack is integrated into the chassis of the cycle and is not intended to be removed, especially by the consumer. However, were the electric assist motor to be removed, the device would still function fully as a bicycle. (Without the assist m otor, the EV Warrior's equipment would be regulated under 16 CFR 512 by the Consumer Products Safety Commission - as a bicycle.)

Using the electric motor alone, the EV Warrior is capable of traveling approximately 15 miles at 12 m.p.h. Its maximum speed is under 25 m.p.h. Even with pedaling, it is difficult to push the bike beyond 25 m.p.h. Its total weight is approximately 85 lbs. Separate service brake systems operate the front and rear brakes, respectively.]

A. License Plate Attachment

CONFIDENTIAL

[We would like you to confirm our understanding that marine grade hook-and-loop material is an acceptable method of attaching the license plates. In my conversation with Luke Loy, NHTSA Safety Compliance Engineer, he advised me that since the FMVSS ar e silent on this issue, such attachment is acceptable.]

B. Adjustability of Headlight Beam, Standard No. 108 Table III, "Headlamps"

This Standard specifies the applicable SAE Recommended Practice for "Headlamp Mountings", SAE J566, Jan. 60. It recommends that:

"Headlamps and headlamp mountings shall be so designed and constructed that:

1. The axis of the light beams may be adjusted to the left, right, up, or down from the designed setting, the amount of adjustability to be determined by practical operating conditions and the type of equipment."

CONFIDENTIAL

One primary rationale for beam adjustability is to compensate for changes in a vehicles suspension system. However, the EV Warrior has no springs or shocks. Rather, it uses a fixed frame and fork. In our experience, bicycle headlamps are continually knocked out of alignment. So, we have designed the headlamp to be secured such that the aim will not be disturbed under ordinary conditions of service [per SAE J566, Jan. 60, par.]

We request an interpretation that the practical operating conditions for a motor driven cycle, whose top speed is under 25 mph and whose operation will correlate to a normal bicycle, dictate that its headlamp (which meets all other headlamp requiremen ts) need not be adjustable.

C. Hydraulic system biodegradable synthetic oil. Standard No. 116, "Motor vehicle brake fluids".

CONFIDENTIAL

[Our basic model EV Warrior employs mechanically activated wire cable "cantilever" brakes, front and rear. However, we currently offer a "standard option" hydraulic front disc brake. This brake, made by Sachs of Germany, is far superior to virtually any cantilever brake. It offers excellent braking power; simplicity in set-up, maintenance and operation; reliability; and fine modulation.

The Sachs hydraulic brake uses a green colored biodegradable synthetic oil, Shell Naturelle HF-E 15, that is not in contact with any elastomeric components made of styrene and butadiene rubber (SBR), ethylene and propylene rubber (EPR), polychloropren e (CR) brake hose inner tube stock or natural rubber (NR)."] Standard No. 116, S4. states that:

"Brake fluid means a liquid designed for use in a motor vehicle hydraulic brake system in which it will contact elastomeric components made of styrene and butadiene rubber (SBR), ethylene and propylene rubber (EPR), polychloroprene (CR) brake hose inn er tube stock or natural rubber (NR).",

and,

"Hydraulic system mineral oil means a mineral-oil-based fluid designed for use in motor vehicle hydraulic brake systems in which the fluid is not in contact with components made of SBR, EPR or NR."

The synthetic oil employed by the Sachs system is neither a "Brake fluid" because it is not in contact with any components made of SBR, EPR, CR or NR, nor is it an "Hydraulic system mineral oil" as it is not petroleum based.

"S5. Requirements This section specifies performance requirements for DOT 3, DOT 4 and DOT 5 brake fluids; requirements for brake fluid certification; and requirements for container sealing, labeling and color coding for brake fluids and hydraulic sys tem mineral oils . . ."

CONFIDENTIAL

[The standard sets out the requirements for "brake fluid" and other requirements for "hydraulic system mineral oil. However, there are no requirements under S5. for fluids that do not fall within either of these definitions. EBC seeks an interpretat ion that, by omission, there are no requirements under FMVSS 116 for the hydraulic system biodegradable synthetic oil as used in the Sachs hydraulic brake system.]

D. Hydraulic Service Brake System Standard No. 122, "Motorcycle brake systems", S5.1.2

CONFIDENTIAL

[The Sachs brake differs from traditional hydraulic systems in that it is a closed system that employs a simple actuator instead of a master cylinder with a reservoir. In open systems, to compensate for brake pad wear, the master cylinder system requ ires a reservoir. However, the Sachs brake compensates for brake pad wear through a simple screw adjustment in the brake lever. This is an excellent system that is commensurate with the weight and simplicity of our electric bicycle. It is, in fact, mu ch easier to adjust than any cable type bicycle brake.]

Standard No. 122, S5.1.2 Hydraulic service brake systems, requires that:

"Each motorcycle equipped with a hydraulic brake system shall have the equipment specified in S5.1.2.1 and S5.1.2.2."

S5.1.2.1 States that:

"Each master cylinder shall have a separate reservoir for each brake circuit, with each reservoir filler opening having its own cover, seal and cover retention device . . ." (emphasis added) CONFIDENTIAL

[Since the Sachs hydraulic system employs no master cylinders, a simple calculation bears out the premise that when there is no master cylinder, the number of master cylinder reservoirs required is zero.

Alternatively, this standard seems to assume that an hydraulic brake system requires a master cylinder reservoir for its proper operation and does not contemplate an actuator system. We request an alternate interpretation that this standard applies t o an open system that requires a reservoir, but not to a closed, actuator system as employed by the EV Warrior. The reservoir serves no purpose in a closed system.

If your interpretation agrees with ours, that a reservoir is not required, then we hope you will also agree that, a fortiori, labeling requirements of S5.1.2.2, for a non-existent reservoir would also not be required.]

E. Tire requirements, Standard No. 119, "Pneumatic tires for vehicles other than passenger cars", S6. Requirements.

CONFIDENTIAL

[The EV Warrior's electric motor will propel the vehicle at no more than 25 m.p.h. (40 k.p.h.). Consequently, the maximum speed of the EV Warrior is about the same as a regular bicycle - and considerably slower than racing cyclists. Even when the mot or is operating at near peak efficiency (and hence reduced speed), the batteries will last no more than 15 miles (24 kilometers) or 1.5 hours. Unlike an internal combustion engine whose fuel tank can be filled in seconds, the EV Warrior generally takes over-night, or at best, a couple of hours to re-charge. Thus there is necessarily a period between each 1-1/2 hour trip when the tires will cool down. It is literally impossible for the EV Warrior to obtain the speeds, or travel anywhere near the non-s top distances contemplated by Standard No. 119]

Standard No. 119, S7.2 Endurance test procedures, require the test for motorcycle tires to be performed at a speed of 55 m.p.h. (90 k.p.h.) for 47 hours.

Standard No. 119, S7.4 High speed performance test procedures, requires testing at speeds of 50 m.p.h. (80 k.p.h.) for two hours, 75 m.p.h. (121 k.p.h.) for 30 minutes, 80 m.p.h. (129 k.p.h.) for 30 minutes and 85 m.p.h. (137 k.p.h.) for 30 minutes.

CONFIDENTIAL

Clearly, these standards are inappropriate for a low-speed, short range electric bicycle such as the EV Warrior. It is not germane whether the EV Warrior's tire/rim combination remains undamaged at 55 mph, because the vehicle can never attain that sp eed. Similarly, the performance characteristics of the tires and rims after 47 hours is not apropos because the, vehicle cannot be operated continuously for that duration. Because it must be recharged after 1.5 hours for 30 minutes to 8 hours (thereby allowing the tires to cool), such a continuous-use endurance test is meaningless. As such, we request an interpretation that, Standard No. 119 cannot reasonably be applied to such a low speed, short range vehicle as the EV Warrior.

We at EBC have joined together to produce an entirely new form of transportation. Children are first introduced to transportation with bicycles. Electric bicycles will allow the smoothest and most natural transition from bikes to electric vehicles. As the first mass marketed electric vehicle, the EV Warrior vehicle will introduce an entire generation to electric vehicles and hasten the electric transportation revolution.

ID: nht95-7.9

TYPE: INTERPRETATION-NHTSA

DATE: October 1, 1995 EST

FROM: Adam Englund -- Electric Bicycle Company, LLC

TO: John Womack -- Acting Chief Counsel, NHTSA

TITLE: Request for Interpretation

ATTACHMT: 1/19/96 letter from Samuel J. Dubbin to Adam Englund (A44; Std. 108; Std. 116; Std. 119; Std. 120; Std. 122)

TEXT: The Electric Bicycle Company, LLC, 3601 Empire Avenue, Burbank CA, 91505 (hereinafter, "EBC") is a limited liability company organized under the laws of the State of Nevada. EBC hereby requests an interpretation with respect to certain Federal Motor Vehicle Safety Standards for the EV Warrior, an electric/human-powered bicycle to be manufactured by EBC.

Confidentiality

Certain portions of this document contain confidential information and trade secrets related to our product and marketing strategy. We have carefully calculated our market position. Based on that market analysis, we spent a great deal of time, money and effort to develop the EV Warrior. As we are about to launch our initial production run, we are aware that other electric bicycles are also entering the market. Our insistence on compliance with FMVSS sets us apart from our competitors. As such, the very existence, and certainly the content of this Request for Interpretation is confidential and constitutes trade secrets.

We seek an interpretation of certain Federal Motor Vehicle Safety Standards with respect to the electric bicycle that we are about to manufacture.

CONFIDENTIAL

[The EV Warrior is essentially a multi-speed bicycle with attached electric motors that drive the rear wheel through a friction drive wheel against the rear tire. The transmissions of each power source - human and electric - are entirely separate. Whereas the bicycle employs six speed derailleur shifting, the electric motor powers the rear wheel through a single drive wheel on a roller clutch against the tire. The EV Warrior employs many standard bicycle components, including wheels, tires, cantilever or optional hydraulic disc bicycle brakes, "Grip Shift" gear shifters, cranks and pedals

The power pack is integrated into the chassis of the cycle and is not intended to be removed, especially by the consumer. However, were the electric assist motor to be removed, the device would still function fully as a bicycle. (Without the assist motor, the EV Warrior's equipment would be regulated under 16 CFR 512 by the Consumer Products Safety Commission - as a bicycle.)

Using the electric motor alone, the EV Warrior is capable of traveling approximately 15 miles at 12 m.p.h. Its maximum speed is under 25 m.p.h. Even with pedaling, it is difficult to push the bike beyond 25 m.p.h. Its total weight is approximately 85 lbs. Separate service brake systems operate the front and rear brakes, respectively.]

A. License Plate Attachment

CONFIDENTIAL

[We would like you to confirm our understanding that marine grade hook-and-loop material is an acceptable method of attaching the license plates. In my conversation with Luke Loy, NHTSA Safety Compliance Engineer, he advised me that since the FMVSS are silent on this issue, such attachment is acceptable.]

B. Adjustability of Headlight Beam, Standard No. 108 Table III, "Headlamps"

This Standard specifies the applicable SAE Recommended Practice for "Headlamp Mountings", SAE J566, Jan. 60. It recommends that:

"Headlamps and headlamp mountings shall be so designed and constructed that:

1. The axis of the light beams may be adjusted to the left, right, up, or down from the designed setting, the amount of adjustability to be determined by practical operating conditions and the type of equipment."

CONFIDENTIAL

One primary rationale for beam adjustability is to compensate for changes in a vehicles suspension system. However, the EV Warrior has no springs or shocks. Rather, it uses a fixed frame and fork. In our experience, bicycle headlamps are continually knocked out of alignment. So, we have designed the headlamp to be secured such that the aim will not be disturbed under ordinary conditions of service [per SAE J566, Jan. 60, par.]

We request an interpretation that the practical operating conditions for a motor driven cycle, whose top speed is under 25 mph and whose operation will correlate to a normal bicycle, dictate that its headlamp (which meets all other headlamp requirements) need not be adjustable.

C. Hydraulic system biodegradable synthetic oil. Standard No. 116, "Motor vehicle brake fluids".

CONFIDENTIAL

[Our basic model EV Warrior employs mechanically activated wire cable "cantilever" brakes, front and rear. However, we currently offer a "standard option" hydraulic front disc brake. This brake, made by Sachs of Germany, is far superior to virtually any cantilever brake. It offers excellent braking power; simplicity in set-up, maintenance and operation; reliability; and fine modulation.

The Sachs hydraulic brake uses a green colored biodegradable synthetic oil, Shell Naturelle HF-E 15, that is not in contact with any elastomeric components made of styrene and butadiene rubber (SBR), ethylene and propylene rubber (EPR), polychloroprene (CR) brake hose inner tube stock or natural rubber (NR)."] Standard No. 116, S4. states that:

"Brake fluid means a liquid designed for use in a motor vehicle hydraulic brake system in which it will contact elastomeric components made of styrene and butadiene rubber (SBR), ethylene and propylene rubber (EPR), polychloroprene (CR) brake hose inner tube stock or natural rubber (NR).",

and,

"Hydraulic system mineral oil means a mineral-oil-based fluid designed for use in motor vehicle hydraulic brake systems in which the fluid is not in contact with components made of SBR, EPR or NR."

The synthetic oil employed by the Sachs system is neither a "Brake fluid" because it is not in contact with any components made of SBR, EPR, CR or NR, nor is it an "Hydraulic system mineral oil" as it is not petroleum based.

"S5. Requirements This section specifies performance requirements for DOT 3, DOT 4 and DOT 5 brake fluids; requirements for brake fluid certification; and requirements for container sealing, labeling and color coding for brake fluids and hydraulic system mineral oils . . ."

CONFIDENTIAL

[The standard sets out the requirements for "brake fluid" and other requirements for "hydraulic system mineral oil. However, there are no requirements under S5. for fluids that do not fall within either of these definitions. EBC seeks an interpretation that, by omission, there are no requirements under FMVSS 116 for the hydraulic system biodegradable synthetic oil as used in the Sachs hydraulic brake system.]

D. Hydraulic Service Brake System Standard No. 122, "Motorcycle brake systems", S5.1.2

CONFIDENTIAL

[The Sachs brake differs from traditional hydraulic systems in that it is a closed system that employs a simple actuator instead of a master cylinder with a reservoir. In open systems, to compensate for brake pad wear, the master cylinder system requires a reservoir. However, the Sachs brake compensates for brake pad wear through a simple screw adjustment in the brake lever. This is an excellent system that is commensurate with the weight and simplicity of our electric bicycle. It is, in fact, much easier to adjust than any cable type bicycle brake.]

Standard No. 122, S5.1.2 Hydraulic service brake systems, requires that:

"Each motorcycle equipped with a hydraulic brake system shall have the equipment specified in S5.1.2.1 and S5.1.2.2."

S5.1.2.1 States that:

"Each master cylinder shall have a separate reservoir for each brake circuit, with each reservoir filler opening having its own cover, seal and cover retention device . . ." (emphasis added) CONFIDENTIAL

[Since the Sachs hydraulic system employs no master cylinders, a simple calculation bears out the premise that when there is no master cylinder, the number of master cylinder reservoirs required is zero.

Alternatively, this standard seems to assume that an hydraulic brake system requires a master cylinder reservoir for its proper operation and does not contemplate an actuator system. We request an alternate interpretation that this standard applies to an open system that requires a reservoir, but not to a closed, actuator system as employed by the EV Warrior. The reservoir serves no purpose in a closed system.

If your interpretation agrees with ours, that a reservoir is not required, then we hope you will also agree that, a fortiori, labeling requirements of S5.1.2.2, for a non-existent reservoir would also not be required.]

E. Tire requirements, Standard No. 119, "Pneumatic tires for vehicles other than passenger cars", S6. Requirements.

CONFIDENTIAL

[The EV Warrior's electric motor will propel the vehicle at no more than 25 m.p.h. (40 k.p.h.). Consequently, the maximum speed of the EV Warrior is about the same as a regular bicycle - and considerably slower than racing cyclists. Even when the motor is operating at near peak efficiency (and hence reduced speed), the batteries will last no more than 15 miles (24 kilometers) or 1.5 hours. Unlike an internal combustion engine whose fuel tank can be filled in seconds, the EV Warrior generally takes over-night, or at best, a couple of hours to re-charge. Thus there is necessarily a period between each 1-1/2 hour trip when the tires will cool down. It is literally impossible for the EV Warrior to obtain the speeds, or travel anywhere near the non-stop distances contemplated by Standard No. 119]

Standard No. 119, S7.2 Endurance test procedures, require the test for motorcycle tires to be performed at a speed of 55 m.p.h. (90 k.p.h.) for 47 hours.

Standard No. 119, S7.4 High speed performance test procedures, requires testing at speeds of 50 m.p.h. (80 k.p.h.) for two hours, 75 m.p.h. (121 k.p.h.) for 30 minutes, 80 m.p.h. (129 k.p.h.) for 30 minutes and 85 m.p.h. (137 k.p.h.) for 30 minutes.

CONFIDENTIAL

Clearly, these standards are inappropriate for a low-speed, short range electric bicycle such as the EV Warrior. It is not germane whether the EV Warrior's tire/rim combination remains undamaged at 55 mph, because the vehicle can never attain that speed. Similarly, the performance characteristics of the tires and rims after 47 hours is not apropos because the, vehicle cannot be operated continuously for that duration. Because it must be recharged after 1.5 hours for 30 minutes to 8 hours (thereby allowing the tires to cool), such a continuous-use endurance test is meaningless. As such, we request an interpretation that, Standard No. 119 cannot reasonably be applied to such a low speed, short range vehicle as the EV Warrior.

We at EBC have joined together to produce an entirely new form of transportation. Children are first introduced to transportation with bicycles. Electric bicycles will allow the smoothest and most natural transition from bikes to electric vehicles. As the first mass marketed electric vehicle, the EV Warrior vehicle will introduce an entire generation to electric vehicles and hasten the electric transportation revolution.

ID: 1769y

Mabel Y. Bullock, Esq.
Assistant Attorney General
State of North Carolina
Department of Justice
P. O. Box 629
Raleigh, NC 27602-0629

Dear Ms. Bullock:

Thank you for your letter to Ms. Susan Schruth of my staff, regarding North Carolina General Statute 20-127, Windshields must be unobstructed. I regret the delay in responding. You enclosed a copy of the statute, the regulations implementing it, a copy of a December 18, l987 legal memorandum prepared by your department concluding that a State statute or regulation allowing 35% light transmittance through windows in motor vehicles would be preempted by current Federal safety laws and standards regulating this same subject matter, and a copy of a May 6, 1988 letter from the Motor and Equipment Manufacturers Association (MEMA) to Mr. William S. Hiatt, the Commissioner of Motor Vehicles for North Carolina, asserting that the North Carolina statute was not preempted by Federal laws and regulations. You asked for my opinion as to whether the North Carolina statute conflicts with any provision of the National Traffic and Motor Vehicle Safety Act (15 U.S.C. /1381 et seq.) or with the Federal Motor Vehicle Safety Standards (49 CFR 571.1 et seq.).

Some background information on Federal motor vehicle safety laws and regulations may be helpful. As you are aware, our agency is authorized, under the National Traffic and Motor Vehicle Safety Act, to issue safety standards applicable to new motor vehicles and certain items of motor vehicle equipment. One of the standards that we have issued under this authority is Standard No. 205, Glazing Materials (49 CFR /571.205), which applies to all new vehicles and all new glazing materials for use in motor vehicles. Among the requirements set forth in Standard No. 205 are specifications for minimum levels of light transmittance (70 percent light transmittance in areas requisite for driving visibility, which includes all windows in passenger cars).

Section 108(a)(1)(A) of the Safety Act (15 U.S.C. 1397(a)(1)(A)) specifies that, "No person shall manufacture for sale, sell, offer for sale, or introduce or deliver for introduction in interstate commerce, or import into the United States, any motor vehicle or item of motor vehicle equipment manufactured on or after the date any applicable Federal motor vehicle safety standard takes effect under this title unless it is in conformity with such standard ..." Because of this statutory requirement, any manufacturer, importer, or dealer that installs solar films or other sun screen devices on new glazing materials or the glazing installed in new vehicles must certify that the vehicle continues to comply with the light transmittance and other requirements of Standard No. 205.

The requirement that a car comply with all applicable safety standards applies only until the car is first sold to a consumer. See section 108(b)(1) of the Safety Act (15 U.S.C. 1397(b)(1)). Both before and after a vehicle is first sold to a consumer, any modifications to the vehicle's windows, including tinting, are affected by section 108(a)(2)(A) of the Safety Act (15 U.S.C. 1397(a)(2)(A)). That section prohibits any manufacturer, dealer, distributor, or repair business from "rendering inoperative" any device or element of design installed in a vehicle in compliance with any safety standard. In the case of windows in a passenger car, this means that no manufacturer, dealer, distributor, or repair business could install a sun screen device or window tinting that would result in a light transmittance of less than 70 percent for any window of the car, or otherwise cause the car to no longer comply with the other requirements of Standard No. 205. Violations of this "render inoperative" prohibition can result in Federal civil penalties to the manufacturer, dealer, distributor, or repair business of up to $1000 for each noncomplying installation.

Please note that Federal law does not affect vehicle owners. Vehicle owners may alter their own vehicles and operate them on the highways as they please, even if the vehicle's windows no longer comply with the requirements of Standard No. 205. Hence, no provision of a Federal statute or this agency's regulations prevents individual vehicle owners themselves from tinting the windows on their vehicles.

The authority of States to regulate glazing is affected by section 103(d) of the Safety Act (15 U.S.C. /1392(d)). This section provides that:

[w]henever 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 as preventing any State from enforcing any safety standard which is identical to a Federal safety standard.

The effect of this provision of the Safety Act, with respect to the light transmittance requirements of Standard No. 205, is to expressly prohibit any State from specifying some level of light transmittance other than the 70 percent specified in Standard No. 205 for new motor vehicles and new glazing for use in motor vehicles. Each of the individual States has authority to enforce identical standards (i.e., a minimum of 70 percent light transmittance) for new motor vehicles and new glazing for use in motor vehicles. Additionally, each of the individual States has the authority to regulate the modifications that may be made to vehicles by their owners and to establish requirements for vehicles to be registered in that State.

Having provided this background, we want to turn now to the results of our review of the North Carolina statute and regulations, along with your office's memorandum concluding that the statute is preempted by Federal law.

1. New vehicles and new glazing for use in vehicles. We concur with the conclusions in your memorandum that the North Carolina statute would be preempted if it specifies any requirements other than the requirements of Standard No. 205 (minimum of 70 percent light transmittance) for new vehicles or for new glazing for use in motor vehicles. Section 108(a)(1) of the Safety Act and Standard No. 205 require all new vehicles and new glazing for use in motor vehicles to be delivered to the first purchaser with a light transmittance of at least 70 percent. Section 103(d) of the Safety Act expressly preempts any non-identical State standard on the subject of window tinting. Section 20-127(d) of the North Carolina statute appears to permit a single application of tinted film with a light transmittance of as little as 35 percent to be applied to vehicle glazing after factory delivery, but before sale to the public. This provision is preempted by Federal law, as is any other provision of North Carolina law which specifies that new glazing and glazing in new vehicles shall have some level of light transmittance other than the 70 percent minimum light transmittance requirement specified in Standard No. 205.

2. Modifications to vehicles and glazing by manufacturers, distributors, dealers and repair businesses after the first purchase of the vehicle or glazing in good faith for purposes other than resale. We concur with the conclusions in your memorandum that the North Carolina statute would be preempted by Federal law if it permits the commercial installation of sunscreen materials so that the combination of the sunscreen material and the existing glazing no longer meet the 70 percent light transmittance requirement specified in Standard No. 205. This conclusion is based on the conflict between the North Carolina statute and the "render inoperative" provision of section 108(a)(2)(A) of the Safety Act. That provision prohibits any manufacturer, distributor, dealer, or repair business from rendering inoperative the compliance of a vehicle or an item of glazing with any of the requirements of Standard No. 205, including the minimum 70 percent light transmittance requirement.

Apart from the issue of preemption, I want to note that the provisions of State law cannot alter the effect of the "render inoperative" prohibition in Federal law. Regardless of how North Carolina law treats the combination of the glazing and the tinting, if it results in less than 70 percent light transmittance, a manufacturer, distributor, dealer, or repair business that installed such tinting on a vehicle would be liable for the Federal civil penalty discussed above.

3. Modifications to vehicles and glazing by individual owners themselves after the first purchase of the vehicle or glazing in good faith for purposes other than resale. As noted above, Federal law does not regulate modifications that individual owners themselves make to their vehicles or glazing after the first purchase in good faith for purposes other than resale, even if those modifications result in the vehicles or glazing no longer complying with the requirements of Standard No. 205, including the requirement for at least 70 percent light transmittance. The State of North Carolina is free to establish whatever restrictions, if any, it deems appropriate on individual owner modifications, without regard to the requirements of Standard No. 205. To the extent that the North Carolina statute seeks to address these individual owner modifications, it would not be preempted by Federal law.

4. Requirements for vehicles to be registered in the State of North Carolina. An individual State is free to establish whatever requirements it deems appropriate for vehicles to be registered in the State, provided that those State requirements would not prohibit the registration of vehicles that complied with the requirements of the Federal safety standards. Thus, the State of North Carolina is free to permit vehicles that do not comply with the requirements of Standard No. 205 to be registered in North Carolina. To the extent that the North Carolina window tinting statute seeks to establish requirements for vehicles to be registered in the State, it would not be preempted by Federal law.

We have also reviewed the May 6, 1988 letter from MEMA to Mr. Hiatt, in which MEMA discusses why it believes North Carolina's statute would not be preempted by Federal law. The MEMA discussion does not address the "render inoperative" provision in section 108(a)(2)(A) of the Safety Act, which prohibits commercial businesses from adversely affecting the compliance of elements of design installed in a vehicle or item of equipment in compliance with a safety standard, regardless of whether the vehicle is new or used. As was previously stated, Federal law prohibits any manufacturer, dealer, distributor, or repair business from ever installing window tinting material for the owner of a car if the combination of the original glazing and the tinting material results in less than 70 percent light transmittance through any window of the car.

To summarize, the North Carolina statute would be preempted to the extent that it seeks to permit some level of light transmittance other than that specified in Standard No. 205 for glazing in vehicles prior to the first purchase of the vehicles in good faith for purposes other than resale. Similarly, the statute would be preempted to the extent it seeks to permit the commercial installation of sunscreen materials with the result that the combination of the sunscreen material and the existing glazing no longer complies with the requirements of Standard No. 205. However, the North Carolina statute would not be preempted to the extent that it seeks to regulate the modifications that owners themselves can make to their vehicles or to the extent that it seeks to establish requirements for vehicles to be registered in the State, even if those requirements differ from those specified in Standard No. 205.

Sincerely,

Erika Z. Jones Chief Counsel

/ref:205#VSA d:4/4/89

ID: nht68-1.10

DATE: 04/11/68

FROM: AUTHOR UNAVAILABLE; William Hadden, Jr.; NHTSA

TO: House of Representatives

TITLE: FMVSS INTERPRETATION

TEXT: Thank you for your letter of March 16, 1968, in reference to an inquiry from Mitts and Merrill, Incorporated, concerning the application of the Federal Motor Vehicle Safety Standards to their brush chipper.

The brush chippers as shown in the brochures you enclosed are less than 80 inches in width; therefore, Motor Vehicle Safety Standard No. 108 does not apply at present. However, after January 1, 1968, Table No. III of Motor Vehicle Safety Standard No. 108, will apply to passenger cars, multi-purpose passenger vehicles, trucks, buses, trailers and motorcycles.

We are enclosing a copy of the Federal Motor Vehicle Safety Standards as per your request and trust they assist you in this matter.

Sincerely,

mitts & merrill, inc.

March 14, 1968

Honorable James Harvey, M. C.

Sir:

REFERENCE: Your Letter of March 6 and Wire of March 11 1968

We have studied the Motor Vehicle Safety Act of 1966 and also reviewed your wire.

With regard to the above Act, the Federal Safety Standards were not sent with it. The establishment of these standards is stated in the Act under Title I, Section 103, paragraph (h) concerning issuance of Federal Safety Standards and subsequent revised standards. Please have copies of these standards sent(Illegible Word) immediately or advise at once where we may obtain same. We must know if our Brush Chipper falls under this Act.

Concerning your wire, enclosed are two copies each of our specification sheets and outline drawings of our Brush Chipper. You will note that no models are over 80" wide which will not bring them under the trailer lighting standards. Our units do require license plates.

Thank you for your efforts in our behalf.

Very truly yours,

Norman E. Hess -- Chief Engineer

enclosures

MITTS & MERRILL CHIPPER SPECIFICATIONS

MODELS -- M7, M8, M9

TRAILER UNITS -- SERIES 160 (16 INCHES) TRAILER: Frame All tubular steel, welded construction. Draw Bar Pintle eye-standard. Ball and socket-optional. Axle Coil spring torsion type, 2" O.D., tubular construction - 61-1/2" track. Wheels Two (2) - Semi-drop center. Tires Two (2) - 15" 8-ply rated - commercial Fenders Two (2) Safety Chains Standard. Parking Wheel Screw action to raise and lower. Rear Stand Folding type.

Combination tail light and license plate holder furnished.

CHIPPING UNIT: Housing Steel Plate, welded construction. Feed Opening 10" x 16" Cutting Bar 7/8" x 2-7/8" x 16-1/2" - Special steel and heat-treated. Dia. of Cylinder 16" Length of Cylinder 16" Cylinder Material Flame cut steel plate. Dia. of Shaft 3" Bearings Two (2) 2-15/16" Dia., single row, piloted and flange mounted. R.P.M. of Cylinder 3000 Number of Knives Twelve (12) Knife Dimensions 4-1/4" x 2-3/8" x 1/2" Type of Knife Double-edged, special knife steel, heat- treated, and with positive lock arrangement.

Cylinder is dynamically and statically balanced. Flywheel and auxiliary blower not required.

POWER UNIT:

Ford Industrial Engines-Standard. Available in the following models:

Model "300", 6-cylinder. 149 B.H.P. with either torque converter, or heavy-duty springloaded type clutch. Engine is calibrated at 2800 RPM.

Model "330", 8-cylinder, 155 B.H.P. with heavy-duty springloaded type clutch. Engine is calibrated at 2800 RPM.

EQUIPMENT-STANDARD WITH ALL MODELS:

Swing-away Feed Chute. Telescoping discharge chute with deflector bonnet, adjustable for height, with 360 degrees rotation for complete control for discharging right, left, or into a truck. Hinged Cover for easy access to cylinder. Matched set of high capacity "V"-Belts. Covered Battery Box. Tool box containing Knife Wrench, Sharpening Stone, Grease Gun and Operating Manual. Mechanical Governor. Paint - Color (customer option) either highway yellow Kem-Lustral F65YQ317, orange Kem-Lustral F65E1, or green Kem-Lustral F65G7.

WEIGHTS - (APPROXIMATED): M & M MODEL NO. POWER UNIT & DRIVE WEIGHT M-7 "300" with Clutch 3675 lbs.

M-8 "300" with Torque 3725 lbs.

M-9 "330" with Clutch 3825 lbs.

OPTIONAL EQUIPMENT: Tachometer Directional Signals Brakes Solenoid Throttle Control Engine Hour Meter Flashing Warning Light Engine Side Panels Fuel Gauge

WARRANTY

Machine & Parts -- 1 year

Service -- Ninety Days

Purchased Parts -- Subject to Original Manufacturer's Warranty.

The Company reserves the right to change the list price of its products without notice. It shall have the right to discontinue the manufacture of any model or type of product, and change design or add improvements at any time without incurring any obligation to install the same on M & M products previously purchased.

For further information, contact your nearest M & M Chipper Dealer, or contact the factory direct.

MITTS & MERRILL will engineer units to suit your needs and requirements.

168 BC-12

MITTS & MERRILL CHIPPER SPECIFICATIONS

MODELS M2, M3, M4, M11, M12, M13

TRAILER UNITS -- SERIES 120 (12 INCHES)

TRAILER: Frame All tubular steel, welded construction. Draw Bar Pintle eye-standard. Ball and socket-optional. Axle Coil spring torsion type, 2" O.D., tubular construction - 61-1/2" track. Wheels Two (2) - Semi-drop center. Tires Two (2) - 15" 8-ply rated - commercial Fenders Two (2) Safety Chains Standard. Parking Wheel Screw action to raise and lower. Rear Stand Folding type.

Combination tail light and license plate holder furnished.

CHIPPING UNIT: Housing Steel plate, welded construction. Feed Opening 10" x 12" Cutting Bar 7/8" x 2-7/8" x 12-1/2" -- Special steel and heat-treated. Dia. of Cylinder 16" Length of Cylinder 12" Cylinder Material Flame cut steel plate. Dia. of Shaft 3" Bearings Two (2) 2-11/16" Dia., single row, piloted and flange mounted. R.P.M. of Cylinder 3000 Number of Knives Nine (9) Knife Dimensions 4-1/4" x 2-3/8" x 1/2" Type of Knife Double-edged, special knife steel, heat- treated, and with positive lock arrangement.

Cylinder is dynamically and statically balanced. Flywheel and auxiliary blower not required.

POWER UNIT:

Ford Industrial Engines-Standard. Available in the following models:

Model "172", 4-cylinder, 59 B.H.P. with torque converter. Engine is calibrated at 2500 RPM.

Model "240", 6-cylinder, 124 B.H.P. with either torque converter, or heavy-duty springloaded type clutch. Engine is calibrated at 2800 RPM.

Model "300", 6-cylinder, 149 B.H.P. with either torque converter, or heavy-duty springloaded type clutch. Engine is calibrated at 2800 RPM.

Model "330", 8-cylinder, 155 B.H.P. with heavy-duty springloaded type clutch. Engine is calibrated at 2800 RPM.

(Graphics omitted) Mitts & Merrill Brush Chipper

engineered for years of maintenance-free service

improved to do all jobs(Illegible Words)

[] telescoping discharge chute

The new telescoping discharge chute gives the operator maximum flexibility in getting jobs done easier and in less time. The chute is adjustable to various heights, and rotatable . . . a combination that means dump boxes can be filled quickly from corner to corner with minimum spill. An adjustable bonnet at the end of the chute also permits discharge to either side, or forward, providing complete freedom in cases such as road right-of-way maintenance where chips may be left on the ground.

[] swing-away feed chute

Knife removal and throat bar adjustments are made relatively easy by the swing-away feed chute. The cutting cylinder is completely exposed when the chute is moved to the side and the hinged cover is lifted. These two features are exclusive with Mitts & Merrill Brush Chippers.

[] staggered knife pattern

The staggered knife pattern, found only on Mitts & Merrill Brush Chippers, provides more cuts per revolution. This results in smoother, more efficient cutting action that reduces material by shaving action rather than the conventional chopping motion. The double-edged knives are securely held in place by a wedge-lock which can be easily disengaged for knife reversal.

[] More outstanding features

Safety-lock pin

The double-edged knives have a positive safety locking pin between the wedge block and the special tool steel knife. This safety feature prevents throw-out of knives not properly tightened.

Easy loading

The feed chute is low to the ground and designed to permit wide-angle loading of brush and free limbs. No pushing is required . . . the cylinder draws the material into the cutting chamber quickly and safely.

All-steel cylinder

The solid steel plate cylinder is supported by a heavy-duty flange mounted ball bearing assembly. The cylinder, rotating in an all-steel welded cutting chamber, has a built-in flywheel and blower arrangement, eliminating the need for any optional equipment for blowing material into the discharge chute.

Excellent roadability

The low profile, strong tubular frame and torsion spring axle assure better roadability over any type of terrain. The certified 100-pound weight at the trailer hitch reduces wear and tear on towing vehicle and adds to the over-all strength and rigidity of the equipment.

Over 70 years of experience . . .

Mitts & Merrill has over 70 years of experience in producing and improving wood reduction machinery. The equipment offered today by Mitts & Merrill is the highest quality, best performing . . . first choice of municipalities, public utilities, highway departments, tree surgeons and others who seek economy in equipment operation through many years of maintenance-free service. The Mitts & Merrill Brush Chipper is the standard by which all brush chippers are judged. You buy it with confidence.

TRAILER UNITS -- SERIES 120 (12 INCH) Total Approximate Pounds Shipping Model Engine Drive Chipping Capacity Weight M-2 Ford "172" Torque Converter Up to 6" Dia. Logs 3350 M-3 Ford "240" Clutch Up to 6" Dia. Logs 3480 M-4 Ford "240" Torque Converter Up to 6" Dia. Logs 3530 M-11 Ford "300" Clutch Up to 8" Dia. Logs 3500 M-12 Ford "300" Torque Converter Up to 8" Dia. Logs 3550 M-13 Ford "330" V8 Clutch Up to 8" Dia. Logs 3675

TRAILER UNITS -- SERIES 160 (16 INCH) Total Approximate Pounds Shipping Model Engine Drive Chipping Capacity Weight M-6 Ford "240" Torque Converter Up to 6" Dia. Logs 3700 M-7 Ford "300" Clutch Up to 8" Dia. Logs 3675 M-8 Ford "300" Torque Converter Up to 8" Dia. Logs 3725 M-9 Ford "330" V8 Clutch Up to 8" Dia. Logs 3825

All trailers are equipped with tires, fenders, taillight, license plate holder, rear support jack, covered tool box, covered battery box, choice of ball or pintle eye hitch on telescopic draw bar, and adjustable front landing wheel. Machines are painted with prime coating plus hi-gloss enamel with color choice optional.

WARRANTY

Parts -- One year; Service Adjustments -- 90 days: Purchased parts are subject to original manufacturers guarantees.

Mitts & Merrill reserves the right to discontinue the manufacturer of any model, to redesign and to add improvements to existing models without incurring any obligation to install same on products previously furnished.

. . . then note how many features are exclusive with Mitts & Merrill Brush Chippers Mitts & Merrill General Brush Chipper Specifications Specifications Trailer frame All tubular steel, welded construction Suspension * Coil spring, torsion type Feed chute * Swing-away type Cutting chamber cover Hinged type Cylinder * 16-inch diameter, dynamically balanced with staggered knife design Cylinder material Flame cut steel plate RPM of cylinder 2,800 to 3,000 Type of knife * Self-adjusting, double-edged, positive-lock type Diameter of shaft 3 inches Feed opening * 10-inch by 12-inch, or 10-inch by 16-inch Bearings 2-15/16 inch diameter, single row, piloted and flange mounted Flywheel * Unnecessary Power Ford 172, 240, 300 or 330 cubic-inch displacement Drive * Torque converter or clutch Blower Standard equipment